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Munz v. Schreiber

Court of Appeals of Texas, Fourteenth District

April 23, 2019


          On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 2016-81111

          Panel consists of Justices Jewell, Zimmerer, and Spain.



         Appellants John Kevin Munz (Munz) and Unimaginable Ventures, LLC (UV) appeal the trial court's order granting the special appearance of appellee Craig Schreiber. Tex. Civ. Prac. & Rem. Code § 51.014(a)(7). Munz and UV challenge the trial court's order by arguing that: (1) the trial court erred in granting the special appearance because it was not verified and thus did not comply with Texas Rule of Civil Procedure 120a; (2) Schreiber did not negate all alleged jurisdictional bases such that the exercise of personal jurisdiction would offend traditional notions of fair play and substantial justice; and (3) the trial court erred in denying their request for a continuance to obtain jurisdictional discovery.

         We conclude the trial court did not err in granting the special appearance. Schreiber attached an affidavit verifying the material facts of his special appearance, thus satisfying Rule 120a. We also conclude that Schreiber sufficiently negated the bases alleged for personal jurisdiction over him and that he did not purposefully avail himself of the privileges and benefits of the state of Texas for purposes of exercising personal jurisdiction. Finally, we conclude that Munz and UV have not established a clear abuse of discretion based on the denial of a continuance for additional discovery. We, therefore, affirm the trial court's order granting Schreiber's special appearance.


         Munz resides in Houston and is the manager of UV, a Texas corporation with its principal office located in Harris County. Munz and UV allege in their live petition that on July 27, 2015, Munz contracted by mail or otherwise for the manufacture of a custom advertising truck with defendant Dynamic Mobile Media, L.L.C. (DMM). DMM is a foreign limited liability corporation organized under the laws of Nevada with its principal office located in Wisconsin. The contract with DMM provided that Munz would purchase and deliver to DMM at its manufacturing facility in Nevada a 14-foot box truck for a custom buildout. DMM would then design, among other things, a metal framework used to mount on the truck a folding LED screen measuring 8 feet 10 inches by 32 feet. The parties agreed to a purchase price of $142, 180, with a fifty percent deposit due at the time of contract and the remaining fifty percent due five days before pick-up of the truck. The contract provided that the modified truck would be available for pick- up on or before October 9, 2015. The contract also provided that the truck could be optionally delivered by a professional driver to the buyer's location. Munz and UV pleaded that Munz paid a fee to have the custom build expedited and that DMM promised to deliver the truck to Munz in Houston.

         Munz and UV further allege that DMM's representative Peter Fischer, a Wisconsin resident, made several representations to Munz prior to and after the contract was executed. Fischer stated to Munz that DMM's manufacturing facilities were located in Las Vegas, that DMM operated in Las Vegas and Wisconsin, that Schreiber was Fischer's "partner and engineer," that Fischer would advertise the custom truck within a "600 mile radius of Houston," and that construction of the custom truck would commence upon delivery of the box truck to the DMM facility in Nevada. According to Munz and UV, Schreiber participated in the discussions between Fischer and Munz and affirmed Fischer's representations regarding DMM's manufacture of the truck, time schedules, and technical capabilities, and stated that Schreiber and Fischer had their own manufacturing facility in China. Schreiber averred that all of his communications with Munz "were either initiated by [Munz] by phone or electronically, or were in response to his communications by phone or electronically." Based on the representations, Munz opened a line of credit with Spirit Bank of Texas, formed UV, purchased and delivered a box truck to DMM in Nevada, and wired money from the bank in Texas to Nevada for the deposit. Payment was made by Munz to Fischer or DMM and Schreiber received no payment from Munz.

         The truck was not completed by the time stated in the contract. Munz began inquiring about the status of the truck with Fischer on September 10, 2015. Fischer stated that the truck was not complete but promised to provide pictures of the truck on October 9, 2015. Munz and UV allege that over the next nine months, from October 10, 2015 until July of 2016, the truck remained unfinished despite repeated inquiries from Munz and multiple promises by Fischer, Schreiber, and DMM representative Kerry Horne, a resident of Canada, that the truck would be complete soon.

         Almost a full year after executing the contract for the custom build, on July 11, 2016, Munz travelled to Las Vegas to investigate the status of the truck in person. When he arrived, he was told that the truck was still not complete nor ready for delivery, but he observed the truck parked on a nearby street. Munz then entered the cab of the truck and proceeded to drive it away. Munz alleges that Schreiber pursued Munz in his own vehicle and ultimately collided his vehicle with the truck being driven by Munz, resulting in injuries to Munz. After the collision, Schreiber drove the truck back to a fenced area. The truck was never completed, despite payment of the deposit, nor was the uncompleted truck returned to Munz and UV. They allege Schreiber stripped the truck of all custom LED equipment and it remains stripped to a mere cab and chassis in Nevada.[1]

         Munz and UV filed the underlying suit against DMM, Fischer, Horne, and Schreiber, asserting claims against all defendants for violations of the Texas Deceptive Trade Practices Act, breach of contract, fraud, negligent misrepresentation, and "money had and received/unjust enrichment." Munz and UV also asserted claims against Schreiber for assault and conversion. Munz and UV asserted liability against Schreiber, Fischer, and Horne as officers or partners of DMM, and as part of a conspiracy. The petition states that the trial court has jurisdiction over the defendants because they: (1) engaged in business in Texas by contracting with a Texas resident that was to be performed in whole or in part in Texas; (2) committed a tort in whole or in part in Texas; and (3) purposefully availed themselves of the privileges and benefits of conducting business in Texas.

         Schreiber filed a special appearance seeking dismissal from the lawsuit for lack of personal jurisdiction. Although the motion was not verified, Schreiber attached an affidavit swearing to facts disputing the alleged bases of jurisdiction. Schreiber averred, among other things, that he is a resident of Las Vegas, Nevada, never owned, operated or worked at a business in Texas, owns no real estate or bank accounts in Texas, has no agents, employees, or sales representatives in Texas, is not obligated to pay taxes in Texas, and has never travelled to Texas in pursuit of the work contracted for by Munz. Munz and UV filed an objection and response to the special appearance, attaching an affidavit from Munz.[2] After an oral hearing, at which Schreiber appeared telephonically, the trial court granted the special appearance, dismissing Schreiber from the lawsuit. The trial court issued no findings of fact or conclusions of law and no findings or conclusions were requested. This appeal followed.


         Munz and UV list the following issues in their briefing: (1) whether Schreiber's special appearance complied with Rule 120a; (2) whether the trial court committed error by sustaining Appellee's special appearance; (3) whether Schreiber negated all alleged jurisdictional bases set out in the Original Petition by presenting sufficient evidence that he had no minimum contacts with Texas; (4) whether Schreiber negated all alleged jurisdictional bases set out in the Original Petition by presenting sufficient evidence that, even if he had contacts with Texas, the exercise of jurisdiction would offend traditional notions of fair play and substantial justice; (5) if Schreiber negated all alleged jurisdictional bases set out in the Original Petition, whether Munz and UV showed that the court had jurisdiction over Schreiber when the burden shifted; and (6) whether the trial court's denial of Munz and UV's request for a continuance to obtain jurisdictional discovery was harmful error. We first address Munz and UV's challenge to the trial court's order based on their argument that Schreiber's special appearance did not comply with Rule 120a because it was not verified. We next address issues two through five together as they address the merits of whether the trial court properly determined that personal jurisdiction over Schreiber is lacking. We then turn to issue six regarding the denial of a continuance to conduct jurisdictional discovery.

         I. The lack of a verification on the special appearance is not fatal because Schreiber's affidavit is sufficient.

         Texas Rule of Civil Procedure 120a provides that a special appearance may be made by a party for the purpose of objecting to the exercise of jurisdiction of the court over the person or property of the party and that "[s]uch special appearance shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion. . .." Tex.R.Civ.P. 120a(1). Schreiber filed his special appearance before any other plea, pleading, or motion, asserting that Texas courts lack personal jurisdiction over him. Schreiber did not verify his special appearance, but he supported each of the factual statements in the special appearance with a citation to his attached affidavit that in turn averred to the facts contained in the special appearance.

         Citing Casino Magic Corp. v. King, Munz and UV argue that the trial court erred in finding a lack of personal jurisdiction because Schreiber did not verify the special appearance. 43 S.W.3d 14, 18 (Tex. App.-Dallas 2001, pet. denied) (sub. op.). In Casino Magic Corp., the court held that the special appearance in that case was defective because it was unverified and contained several jurisdictional facts that the witness did not attest to in the attached affidavit. Id. In Washington DC Party Shuttle, LLC v. IGuide Tours, we found Casino Magic Corp. distinguishable where the affidavit attached to an unverified special appearance contained averments of each of the relevant jurisdictional facts stated in the special appearance. 406 S.W.3d 723, 730-31 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). As in Washington DC Party Shuttle, Schreiber's affidavit in this case attests to the relevant jurisdictional facts set forth in the special appearance. On appeal, Munz and UV do not identify any jurisdictional fact stated in Schreiber's special appearance that is not repeated and sworn to by Schreiber in his affidavit. We therefore conclude that Schreiber's affidavit sufficiently verified the special appearance.[3] Id. at 731.

         Munz and UV also argue Schreiber's affidavit is insufficient for failure to include an unequivocal statement that the facts are "true and correct" or based on personal knowledge. In Humphreys v. Caldwell, the Supreme Court of Texas explained that "[a]n affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge is legally insufficient." 888 S.W.2d 469, 470 (Tex. 1994) (per curiam) (orig. proceeding). The affidavit at issue in Humphreys stated the affiant's statements were made on his "own personal knowledge and/or knowledge which he has been able to acquire upon inquiry." Id. The Court held the statement failed to "unequivocally show that they are based on personal knowledge." Id. The affidavit was also insufficient because it contained no representation at all that the facts disclosed in the affidavit were true. Id. at 470-71.

         Schreiber's affidavit in this case contains the following statements:

I am over 18 years of age and not under any restraint or legal disability, am competent to testify to the matters state [sic] herein, and make this affidavit based upon my own personal knowledge and observations.
* * *
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and if sworn as a witness, I could and would testify competently thereto.

         The Schreiber affidavit is sworn and notarized. Unlike the affidavit found insufficient in Humphreys, Schreiber's affidavit is not qualified. It contains no "and/or" language and unqualifiedly attests that the statements made are based on his personal knowledge and observations. Further, the affidavit declares that the "foregoing" is "true and correct." The affidavit is legally sufficient. See Teal v. State, 230 S.W.3d 427, 431-32 (Tex. App.-San Antonio 2007, pet. denied).

         We overrule Munz and UV's first issue.

         II. Texas courts lack personal jurisdiction ...

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