Opinion
No. 05-02-00914-CV.
Opinion Filed October 23, 2003.
Appeal from the 68th District Court, Dallas County, Texas, Trial Court Cause No. 02-01984-C.
AFFIRM.
Before Chief Justice THOMAS AND Justices JAMES and FITZGERALD.
MEMORANDUM OPINION
John Stancu brings this interlocutory appeal of the trial court's granting of Nathaniel Popp's special appearance. In his sole issue, appellant contends the trial court erred in sustaining Popp's special appearance and dismissing appellant's cause of action against him. We affirm.
Popp is the archbishop of the Romanian Orthodox Episcopate of America and is a resident of Michigan. Appellant had been a member of St. Mary's Romanian Orthodox Church of Dallas, but following a series of alleged incidents, his membership in the church was suspended and he was banned from the church's premises. Appellant sued the Romanian Orthodox Episcopate of America, as well as Popp and certain leaders and members of St. Mary's for fraud from his not being paid for construction work he performed for the church as well as for defamation from the writings of St. Mary's church members and clergy and the police reports they made about him. Appellant sued Popp for gross negligence in not disciplining the clergy at St. Mary's and for not bringing an action against St. Mary's clergy through the Episcopate Court.
Popp specially appeared, asserting he lacked sufficient contacts with Texas to be required to defend himself in Texas. After considering the special appearance, appellant's response, and Popp's affidavit, the trial court sustained the special appearance and dismissed appellant's suit against Popp.
A Texas court may exercise jurisdiction over a nonresident defendant if (1) the Texas long-arm statute authorizes the exercise of jurisdiction and (2) the exercise of jurisdiction is consistent with federal and state guarantees of due process. See Tex. Civ. Prac. Rem. Code Ann. §§ 17.041-045 (Vernon 1997 Supp. 2003); Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002), cert. denied, 123 S.Ct. 1271 (2003); Kelly Inv., Inc. v. Basic Capital Mgmt., Inc., 85 S.W.3d 371, 374 (Tex.App.-Dallas 2002, no pet.). Federal due process mandates that the defendant "purposefully avail" itself of the privilege of conducting activity within the forum state, thus invoking the benefits and protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985) (random, fortuitous, or attenuated contacts insufficient). The defendant's conduct and connection with the state must be such that he could reasonably anticipate being sued in the forum state. Id. We determine whether (1) the nonresident defendant has purposefully established minimum contacts with Texas and, if so, (2) the exercise of jurisdiction comports with "notions of fair play and substantial justice." Id. The defendant's activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). A defendant is not subject to jurisdiction here if his Texas contacts are random, fortuitous, or attenuated. Am. Type Culture Collection, Inc., 83 S.W.3d at 806.
A defendant's contacts with a forum can give rise to either specific or general jurisdiction. Id. For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the defendant's contacts with the forum must be purposeful, and (2) the cause of action must arise from or relate to those contacts. Id. Specific jurisdiction is established if the defendant's alleged liability arises from or is related to an activity conducted within the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984); CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996). The defendant's purposeful conduct, not the unilateral activity of the plaintiff or others, must have caused the contact. Helicopteros, 466 U.S. at 417 (focus is on relationship among defendant, forum, and litigation); Am. Type Culture Collection, Inc., 83 S.W.3d at 806.
The plaintiff has the initial burden of pleading facts sufficient to bring a nonresident defendant within the provisions of the Texas long-arm statute. See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 633 (Tex.App.-Dallas 1993, writ denied). When a nonresident defendant challenges a trial court's exercise of personal jurisdiction through a special appearance, it carries the burden of negating all bases for personal jurisdiction. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985).
The exercise of personal jurisdiction requires the trial judge to resolve any factual disputes before applying the jurisdictional formula. Hotel Partners v. Craig, 993 S.W.2d 116, 120-21 (Tex.App.-Dallas 1994, pet. denied). On appeal, the appropriate standard of review of the trial court's order granting or denying a special appearance is a de novo review, applying the supreme court's jurisdictional formula. See Craig, 993 S.W.2d at 120. We apply a factual sufficiency of the evidence review to all of the evidence before the trial judge on the question of jurisdiction. Craig, 993 S.W.2d at 120; KPMG Peat Marwick, 847 S.W.2d at 632. Once all factual disputes are resolved, we examine de novo whether the facts negate all bases for personal jurisdiction. Am. Type Culture Collection, Inc., 83 S.W.3d at 806; Craig, 993 S.W.2d at 120.
When, as in this case, a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the appellate record includes the reporter's and clerk's records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appellate court. Id. For legal sufficiency points, if there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Id.
In his brief on appeal, appellant asserts Popp had nine contacts with Texas, but appellant's discussion is limited to the following contact: "Appellee Nathaniel Popp sent his delegate Dumitru V. Sasu in Dallas, Texas to solve the existing problems. Appellee's delegate caused substantial harm and injuries to Appellant." (Record citations omitted.) Appellant's brief does not explain how Sasu's actions make Popp amenable to suit in Texas. According to appellant's petition and response to the special appearance, the priest at St. Mary's resigned and Popp, as archbishop of the Episcopate, appointed Sasu as a "delegate from the Episcopate" to preside over a Special Parish Assembly in which "[t]he only matter on the Agenda is the remuneration of the Priest." Appellant alleged in his petition that Sasu exceeded the limits of the Agenda at the meeting, slandered appellant, and made a false police report about appellant, which effectively banned appellant from the church's premises. In his affidavit, Popp stated, "I did not order Dumitru V. Sasu to retaliate against John Stancu." The trial court could conclude from the evidence that Sasu was not Popp's agent but the agent of the Episcopate and was not acting on behalf of Popp when Sasu made the alleged defamatory statements. Thus, the trial court could conclude that Sasu's actions which allegedly harmed appellant do not constitute purposeful contacts by Popp with Texas.
Appellant's brief does not show the trial court erred in concluding Popp's contacts with Texas were insufficient to give rise to general or specific jurisdiction. We hold the trial court did not err in sustaining Popp's special appearance. We resolve the issue against appellant.
We affirm the trial court's order.