Opinion
No. 10-06-00058-CV
Opinion delivered March 7, 2007.
Appeal From the County Court, McLennan County, Texas, Trial Court No. 2005-0057-GDN.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This is an appeal of a proceeding for the guardianship of the person and of the estate of Zeferina Veracruz Castanon. Zeferina Castanon's daughter, Appellant Antonia Witkowski, appeals the trial court's order appointing Zeferina's son, Appellee Julian Joseph Castanon, as Zeferina's permanent guardian. Zeferina has filed a brief through her appointed attorney ad litem. We affirm.
In Appellant's fourth issue, she contends that her pleadings "did not waive objection to the [trial c]ourt's jurisdiction to exert jurisdiction over Zeferina Castanon." (Br. at xi.) Zeferina and Appellee argue that Appellant failed to comply with the due order of pleadings, and thus waived Appellant's objection. See TEX. R. CIV. P. 120a(1); Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004) (per curiam). Appellant "concedes that usually the filing of a Special Appearance must precede all other pleadings in a case," but argues that her first pleading, an application to be appointed guardian, "put the Court . . . on notice" of Zeferina's permanent residence in Illinois, and argues that Appellant's later answer "did assert a form of Special Appearance." (Br. at 28 (citing TEX. R. CIV. P. 120a), 31; see Appellant Br. at 29-30.) But Appellant argues that she does not challenge the trial court's exercise of personal jurisdiction over Appellant; Appellant attempts, rather, to challenge the trial court's exercise of personal jurisdiction over Zeferina We assume without deciding that Appellant's entry of a general appearance did not waive the issue of personal jurisdiction over Zeferina.
Appellant also points to "Appellee's [f]ailure to [d]isclose" certain facts concerning Zeferina in his pleadings. (Br. at 29.) We do not perceive the force of that argument, certainly not in the absence of any challenge in the trial court by Appellant to Appellee's pleadings. Appellant also contends that Appellee "[w]aive[d]" any complaint concerning the order of Appellant's pleadings. (Br. at 31.)
In Appellant's first issue, she contends, "There was no evidence, or insufficient evidence, that Zeferina Castanon had sufficient contacts with the State of Texas to trigger the imposition of statutory long-arm jurisdiction on her." (Br. at xi.) In Appellant's second issue, she contends, "There was no evidence, or insufficient evidence, that Zeferina Castanon had sufficient contacts with the State of Texas to trigger the imposition of due process long-arm jurisdiction on her." ( Id.) Appellant thus argues that Zeferina is not a Texas resident, and that the trial court lacked personal jurisdiction over Zeferina. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985); Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Moki Mac River Expeditions v. Drugg, No. 04-0432, 2007 Tex. LEXIS 188, at *6-*7, *8-*9 (Tex. Mar. 2, 2007); Commonwealth Gen. Corp. v. York, 177 S.W.3d 923, 924 (Tex. 2005) (per curiam).
Zeferina argues that Appellant lacks standing to challenge the trial court's personal jurisdiction over Zeferina. Appellant does not cite us to, and we find no, cases holding that a party may challenge the trial court's personal jurisdiction over another person. "Subject matter jurisdiction . . . may not be waived by the parties"; Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); see Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004); still "[j]urisdiction of the person can be conferred by consent or waiver"; Drake v. Trinity Universal Ins. Co., 600 S.W.2d 768, 772 (Tex. 1980) (quoting Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, [541,] 174 S.W.2d 598, 600 (1943)); accord In re Prudential Ins. Co., 148 S.W.3d 124, 130 n. 11 (Tex. 2004) (orig. proceeding). "[A]n appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others." Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000); accord Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex. 1999) (per curiam); Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex. 1982); Hawkins v. Tex. Oil Gas Corp., 724 S.W.2d 878, 890 (Tex.App.-Waco 1987, writ ref'd n.r.e.); Jordan v. Bustamante, 158 S.W.3d 29, 39 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); In re T.N., 142 S.W.3d 522, 524 (Tex.App.-Fort Worth 2004, no pet.) (termination of parental rights). "[T]he part[y's] own interest must be prejudiced before it has standing to appeal." McWherter v. Agua Frio Ranch, No. 08-03-00435-CV, 2005 Tex. App. LEXIS 5560, at *12 (Tex.App.-El Paso July 15, 2005, no pet.); Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 335 (Tex.App. — Corpus Christi 2003, pet. denied); In re Estate of Teal, 135 S.W.3d 87, 93 (Tex.App.-Corpus Christi 2002, no pet.).
Appellant does not establish that she can complain concerning the trial court's personal jurisdiction over Zeferina We overrule Appellant's first and second issues.
In any case, if Appellant could bring her jurisdictional challenge, we would hold that she does not show that the trial court lacked personal jurisdiction over Zeferina. Appellant concedes that "Texas courts have the power to assert personal jurisdiction over a nonresident defendant if such jurisdiction (1) is authorized by the Texas long-arm statute and (2) is consistent with federal constitutional guarantees of due process." (Br. at 7 (citing Schlobohm v. S[ c] hapiro, 784 S.W.2d 355, 356 (Tex. 1990))); see Moki Mac River Expeditions, 2007 Tex. LEXIS 188, at *6; Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002); In re S.A.V., 837 S.W.2d 80, 85 (Tex. 1992) (child support and visitation). Appellant contends, "There is no applicable long-arm statute in the Probate Code." (Br. at 8 n.[1]; see id. at 9); but see TEX. PROB. CODE ANN. § 882 (Vernon 2003) (guardianship of estate of nonresident ward); but see also TEX. R. CIV. P. 108 (defendant without state). Appellant contends that the trial court did not have jurisdiction under Texas Civil Practice and Remedies Code Chapter 17, Subchapter C, governing long-arm jurisdiction in suits on business transactions or torts. See TEX. CIV. PRAC. REM. CODE ANN. §§ 17.041-17.045 (Vernon 1997 Supp. 2006). Appellant concedes, however, that "the Texas Supreme Court has concluded that the long-arm statute reaches to the limits allowed by constitutional due process." (Br. at 8 (citing, e.g., CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) [(orig. proceeding)]; Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991))); see Moki Mac River Expeditions at *7-*8; Am. Type Culture Collection at 806; U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977). As Zeferina argues, personal service on a nonresident individual within the state satisfies due process. "An assertion of personal jurisdiction based on physical presence" without more "constitutes due process." Stallworth v. Stallworth, 201 S.W.3d 338, 344 (Tex.App.-Dallas 2006, no pet.); see Burnham v. Super. Court, 495 U.S. 604, 610-19 (1990) (plurality op.); In re Gonzalez, 993 S.W.2d 147, 151-54 (Tex.App.-San Antonio 1999, pet. denied) (paternity); Flores v. Melo-Palacios, 921 S.W.2d 399, 402-403 (Tex.App. — Corpus Christi 1996, writ denied). The trial court's jurisdiction over a proposed guardianship requires service of citation on the proposed adult ward. See TEX. PROB. CODE ANN. § 633(c)(1), (e); Torres v. Ramon, 5 S.W.3d 780, 782 n. 1 (Tex.App.-San Antonio 1999, no pet.). A proposed ward alleged to be an incompetent person cannot waive service of citation. See id.; Peek v. DeBerry, 819 S.W.2d 217, 219 (Tex.App. — San Antonio 1991, writ denied). However, a proposed ward can waive personal jurisdiction by counsel or guardian. See In re Mask, 198 S.W.3d 231 (Tex.App.-San Antonio 2006, orig. proceeding); In re Guardianship of Soberanes, 100 S.W.3d 405, 407 (Tex.App.-San Antonio 2002, no pet.); Peek at 219; Carney v. Aicklen, 552 S.W.2d 633, 634 (Tex.Civ.App.-Austin 1977, no writ). Appellee personally served Zeferina with citation in McLennan County. Zeferina answered and entered a general appearance by counsel. Accordingly, the trial court had personal jurisdiction over Zeferina.
In Appellant's third issue, she contends, "Appellee's argument concerning venue confuse[d] the trial court's determination regarding in personam jurisdiction in the case." (Br. at xi.) An appellant's "brief must state concisely all issues or points presented for review." TEX. R. APP. P. 38.1(e). "An issue presented in an appellant's brief is sufficient if it directs the attention of the appellate court to the error about which the complaint is made." Gibson v. Bochow, No. 12-04-00028-CV, 2004 Tex. App. LEXIS 8187, at *2 (Tex.App.-Tyler Sept. 8, 2004, no pet.) (mem. op.); see Stephenson v. LeBouef, 16 S.W.3d 829, 843 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). We do not perceive that Appellant's third issue assigns error to the trial court. To the extent that Appellant argues that the trial court erred in overruling Appellant's objection to jurisdiction, we have overruled that contention above. We overrule Appellant's third issue.
Having overruled Appellant's issues, we affirm.