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WG&D Masonry, LLC v. Long Island's Finest Homes, LLC

Court of Appeals of Texas, Tenth District

June 7, 2017

WG&D MASONRY, LLC, Appellant
v.
LONG ISLAND'S FINEST HOMES, LLC, Appellee

         From the 40th District Court Ellis County, Texas Trial Court No. 92757

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

          MEMORANDUM OPINION

          TOM GRAY Chief Justice.

         WG&D Masonry, LLC, a Texas company, sued Long Island's finest Homes, LLC, a New York company, in Texas for breach of contract and other causes of action in connection with two leases of short term rental homes in New York and the subsequent withholding of the security deposit for the first lease. Long Island filed a special appearance. After both parties responded multiple times, attaching affidavits and supporting documents, the trial court held a hearing and granted Long Island's special appearance and dismissed WG&D's lawsuit against Long Island. Because the trial court did not err in granting the special appearance, we affirm the trial court's judgment.

         Findings of Fact and Conclusions of Law

         Initially, WG&D complains on appeal that the trial court erred in failing to file findings of fact and conclusions of law when timely requested and timely notified they were past due. See Tex. R. Civ. P. 296, 297. As a remedy, WG&D contends we should either abate the appeal for findings of fact and conclusions of law or reverse the trial court's order dismissing WG&D's lawsuit for lack of personal jurisdiction.

         Appeals of orders on special appearances are most commonly brought as appeals of interlocutory orders, and findings of fact and conclusions of law are not required in that procedural posture. See Tex. R. App. P. 28.1(c); Tex. Civ. Prac. & Rem. Code Ann. §51.014(a)(7) (West 2014). Notwithstanding that, the order on Long Island's special appearance in this case is coupled with a dismissal of WG&D's claims which makes it a final judgment. However, WG&D is still not entitled to findings of fact and conclusions of law. See Tex. R. Civ. P. 296. "The purpose of Rule 296 is to give a party a right to findings of fact and conclusions of law finally adjudicated after a conventional trial on the merits before the court." Ikb Indus. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). Where there is no conventional trial on the merits, findings and conclusions may be proper, but a party is not entitled to them. See id. (findings and conclusions in dismissal of suit as discovery sanction, helpful but not required). In this case, there was no conventional trial on the merits. Thus, WG&D was not entitled to findings of fact and conclusions of law, and the trial court did not err in not providing them.[1] WG&D's first issue is overruled.

         Special Appearance

         In its second and third issues, WG&D asserts that because Barry Turk was Long Island's agent (second issue) and because Long Island's contacts through Turk established personal jurisdiction (third issue), the trial court erred in granting Long Island's special appearance.

         Pursuant to Rule 120a of the Texas Rules of Civil Procedure, a special appearance may be made by any party for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such person or property is not amenable to process issued by the courts of this State. Tex.R.Civ.P. 120a(1). Whether a court has jurisdiction is a question of law that we review de novo. Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). "When, as here, the trial court does not issue findings of fact and conclusions of law, we imply all relevant facts necessary to support the judgment that are supported by evidence." Id.

         Texas courts have personal jurisdiction over a nonresident defendant when (1) the Texas long-arm statute provides for it, and (2) the exercise of jurisdiction is consistent with federal and state due process guarantees. Spir Star AG v. Kimich, 310 S.W.3d 868, 872(Tex. 2010); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The Texas long-arm statute's broad doing-business language "allows the statute to reach as far as the federal constitutional requirements of due process will allow." Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). Under a constitutional due-process analysis, personal jurisdiction exists when (1) the non-resident defendant has established minimum contacts with the forum state, and (2) the assertion of jurisdiction complies with "traditional notions of fair play and substantial justice." Moki Mac, 221 S.W.3d at 575 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). We focus on the defendant's activities and expectations when deciding whether it is proper to call the defendant before a Texas court. Int'l Shoe Co., 326 U.S. at 316.

         A defendant's contacts with a forum can give rise to either specific or general jurisdiction. Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). WG&D alleges that the trial court had both specific and general jurisdiction. A court has specific jurisdiction over a defendant if the defendant's alleged liability arises from or is related to an activity conducted within the forum. Spir Star AG v. Kimich, 310 S.W.3d 868, 873(Tex. 2010); CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996). In such cases, "we focus on the 'relationship among the defendant, the forum[, ] and the litigation.'" Spir Star AG, 310 S.W.3d at 873 (quoting Moki Mac, 221 S.W.3d at 575-76). General jurisdiction is present when a defendant's contacts with a forum are "continuous and systematic, " a more demanding minimum-contacts analysis than specific jurisdiction. Id. at 807. For general jurisdiction purposes, we do not view each contact in isolation. Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 809 (Tex. 2002).

         The plaintiff bears "the initial burden of pleading allegations sufficient to confer jurisdiction, " and the burden then shifts to the defendant "to negate all potential bases for personal jurisdiction the plaintiff pled." Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013). A defendant can negate jurisdiction either legally or factually. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 659 (Tex. 2010). Legally, the defendant can show that the plaintiff's alleged jurisdictional facts, even if true, do not meet the personal jurisdiction requirements. See id. Factually, the defendant can present evidence that negates one or more of the requirements, controverting the plaintiff's contrary allegations. TV Azteca v. Ruiz, 490 S.W.3d 29, 36 fn. 4 (Tex. 2016). The plaintiff can then respond with evidence supporting the allegations; and it risks dismissal of its lawsuit if it cannot present the trial court with evidence establishing personal jurisdiction. Id. If the plaintiff fails to plead facts bringing the defendant within reach of the long-arm statute, the defendant need only prove that it does not live in Texas to negate jurisdiction. Kelly, 301 S.W.3d. at 558-559. If the parties ...


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