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Mungas v. Rishikof

Court of Appeals of Texas, First District

April 25, 2017

GREG MUNGAS, Appellant
v.
BRIAN RISHIKOF, Appellee

         On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1075659.

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          Harvey Brown Justice

         This is an interlocutory appeal from an order overruling a special appearance made by a nonresident defendant in a suit on a promissory note.[1] A resident of California, Greg Mungas, solicited a resident of Texas, Brian Rishikof, for a loan. Rishikof loaned Mungas the money, which Mungas agreed to repay according to the terms of a promissory note. Mungas defaulted on the note, and Rishikof sued Mungas in Texas state court. Mungas filed a special appearance, which the trial court denied, ruling that Mungas was subject to specific jurisdiction. On appeal, Mungas contends that his Texas contacts are insufficient to establish personal jurisdiction over him. We affirm.

         Background

         This dispute arises out of the default on a promissory note by the maker of the note, Greg Mungas, a resident of California. The bearer of the note is Brian Rishikof, a resident of Texas. Rishikof and Mungas know each other from prior business dealings. They both own companies that have worked together on government-funded aerospace research.

         In early 2012, Mungas solicited Rishikof for a loan of $75, 000. According to Mungas, he solicited the loan from Rishikof because he needed funds to continue operating his business in California. Rishikof agreed to loan Mungas the money, and the two prepared a promissory note. The principal amount, $75, 000, was printed on the top left corner of the note, and "Houston, Texas" was printed on the top right. The first paragraph stated:

For value received, the undersigned ("Maker") promises to pay to Brian Rishikof ("Payee"), of [street address], Houston, TX 77059, the principal sum of seventy-five thousand dollars ($75, 000.00), together with interest at the rate hereinafter provided for on the unpaid balance of this note from time to time outstanding until paid in full.

         The note provided that "principal and interest shall be due and payable in full on April 30, 2012." Although the note made clear that the principal and interest were payable to Rishikof, it did not provide any instructions on exactly where Mungas was supposed to repay him. Nor did the note contain provisions specifying the governing law or the parties' choice of forum.

         After Mungas and Rishikof drafted the note, Rishikof asked Mungas to send him a signed copy and to provide him with wiring instructions so he could wire Mungas the proceeds from his personal bank account. Mungas signed the promissory note and provided Rishikof with the instructions. Rishikof wired the proceeds from his bank account in Texas to Mungas's bank account in California.

         Mungas never made any payments, and Rishikof eventually filed this lawsuit to collect on the note. In response to Rishikof's petition, Mungas filed a special appearance.

         Mungas supported his special appearance with a sworn declaration. In the declaration, Mungas stated that, at all times relevant to the lawsuit, he was a resident of California. His home and business were in California. He paid state and local taxes in California. He was registered to vote in California. When the lawsuit was filed, he was temporarily residing in Arizona, but he expected to return to California in the near future.

         According to Mungas's sworn declaration, Mungas had never resided or worked in Texas, was not registered to vote in Texas, did not own property in Texas, did not have employees or agents in Texas, and did not earn income from Texas. Mungas stated that the promissory note was for loan proceeds that were related to business operations in California. He stated that he did not sign the promissory note in Texas, did not receive the money in Texas, and did not deposit the money into a Texas bank account.

         The trial court overruled Mungas's special appearance, finding that Mungas was subject to specific jurisdiction because the promissory ...


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