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Tran v. Tran

Court of Appeals of Texas, First District

March 2, 2017

THANH TRAN AND NANCY TRAN, Appellants
v.
DAVID TRAN, Appellee

         On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 12-DCV-202219

          Panel consists of Justices Keyes, Higley, and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice

         Appellants, Thanh Tran and Nancy Tran, appeal the trial court's order sustaining the special appearance of appellee, David Tran. In three issues, Thanh and Nancy contend that the trial court erred in granting David's special appearance because David (1) waived his special appearance; (2) failed to negate all potential bases for personal jurisdiction; and (3) failed to demonstrate that the exercise of jurisdiction would offend traditional notions of fair play and substantial justice. We affirm.

         Background

         David is a resident of the State of Washington. Thanh, David's uncle, is a Texas resident. Nancy, David's aunt, is a resident of the State of Washington. David's company, David Tran Investments, LLC, is a limited liability company organized under the laws of the State of Washington and whose principal place of business is in the State of Washington.

         On November 8, 2012, Thanh and Nancy sued David alleging that he induced them to invest $350, 000 in the opening of his bar and restaurant in Seattle based upon David's fraudulent representations that they would be repaid within a couple of years and receive a share of the business's profits. Thanh and Nancy asserted causes of action for fraud, fraud in the inducement, breach of fiduciary duty, breach of promise to repay, and constructive trust.

         On December 7, 2012, David filed a special appearance contesting the trial court's personal jurisdiction over him. In his verified pleading, David stated that David Tran Investments, LLC, is not registered to do business in Texas; it has no registered agent, office, bank account, or telephone listing in Texas; the bar and restaurant in which Thanh invested, as well as all of its employees, managers, supervisors, vendors, suppliers, accountants, and agents, are located in the State of Washington; and all of the business decisions and day-to-day operations concerning the bar and restaurant are conducted in the State of Washington. David further stated that he has never been to Texas and that the only face-to-face discussion he had with Thanh regarding Thanh's investment took place in Seattle.

         On January 28 and June 12, 2013, the parties propounded written discovery. On April 15, 2013, the trial court granted Thanh and Nancy's motion to compel. David and Thanh were deposed on November 8 and December 13, 2013, respectively, on matters relating to the special appearance. The record reflects that the only activity in the case between December 13, 2013 and November 18, 2015 was the filing by David's attorney of a notice of change of address.

         On November 18, 2015, Thanh and Nancy moved for partial summary judgment and set the motion for submission on December 14, 2015. On November 20, 2015, David noticed his special appearance for hearing on December 7, 2015. David filed amended notices resetting the hearing date on his special appearance to January 11 and, later, to February 8, 2016. Thanh and Nancy filed amended notices resetting submission of their partial summary judgment motion to January 25 and, later, to February 22, 2016. On February 3, 2015, David filed a supplemental brief in support of his special appearance and, on February 8, 2015, Thanh and Nancy filed a response.

         On February, 8, 2015, the trial court held a hearing on David's special appearance. On February 15, 2016, David filed a motion to continue Thanh and Nancy's motion for partial summary judgment and his response to the motion. On February 26, 2016, the trial court sustained David's special appearance and dismissed the case. This appeal followed.

         Discussion

         A. Waiver of Special Appearance

         In their first issue, Thanh and Nancy contend that David waived his special appearance by (1) failing to timely request a hearing on the special appearance and (2) filing a motion for continuance of their ...


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