Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Case No. 12-DCV-202219
consists of Justices Keyes, Higley, and Lloyd.
Russell Lloyd Justice
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
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.
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.
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.
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.
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.
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
Waiver of Special Appearance
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 ...