Garcia v. Flores

          On appeal from the County Court at Law No. 5 of Hidalgo County, Texas.

          Before Contreras, Chief Justice and Hinojosa and Tijerina, Justices.

          MEMORANDUM OPINION

          JAIME TIJERINA, Justice.

         Appellant Aureliano Garcia d/b/a A. Garcia Produce & Trucking, LLC ("Garcia") challenges the trial court's denial of his special appearance.^[1] By two issues, Garcia contends that appellee Humberto Flores failed to (1) tender jurisdictional evidence to support that the trial court has jurisdiction over him personally and (2) show that Garcia waived his special appearance. We affirm.

         I. Background

         According to Flores's petition, he entered a contract with Garcia to purchase a 2001 Kenworth T800 tractor rig and refrigerated trailer for $65, 000. Flores alleged that Garcia "promised" to work with Flores by providing produce for Flores to haul from Garcia's Hidalgo County Business to Georgia, and Flores would pay for the rig and trailer by making such hauls. Flores claimed that Garcia "ceased, for no good reason, to give [Flores] loads to haul." Flores stated in his petition that he then asked Garcia to give him a nonnegotiable title to the rig, and Garcia refused. According to Flores, "Garcia immediately began efforts to seize and take the subject rig from [him]" even though Flores had made "substantial payments" to Garcia. Flores alleged that his debt to Garcia was only $10, 000. Subsequently, Corzam, L.L.C., a wrecker and towing company (the "towing company"), "seized the subject rig from" Flores in Hidalgo County, Texas.

         Flores sued Garcia for breach of contract, breach of duty of good faith and fair dealing, fraud, and intentional infliction of emotional distress. Flores also sued Garcia and the towing company for theft. Garcia filed a special appearance and motion to dismiss for lack of personal jurisdiction denying that he committed any acts in Texas that would bring him under the Texas long-arm statute and claiming that he resides in Georgia. Garcia attached a memorandum in support of his special appearance setting out his arguments regarding his lack of minimum contacts with Texas. Garcia then filed an answer (1) generally denying Flores's allegations, (2) asserting affirmative defenses, and (3) countersuing Flores for breach of contract. Flores filed a general denial and a response to Garcia's motion to dismiss for lack of personal jurisdiction.

         After holding a hearing on Garcia's special appearance and motion to dismiss, the trial court denied both. This appeal followed.

         II. Applicable Law and Standard of Review

         Texas courts have personal jurisdiction over a nonresident defendant only if it is authorized by the Texas long-arm statute, see Tex. Civ. Prac. & Rem. Code Ann. § 17.042, which allows Texas courts to exercise personal jurisdiction over nonresident defendants who are doing business in Texas. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). The Texas long-arm statute sets out several activities that constitute "doing business" in Texas; however, the list is not exclusive, and the long arm statute's "broad language extends Texas courts' personal jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" Id. (quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)). Therefore, "the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations." CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996).

         Under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, a Texas court has personal jurisdiction over a nonresident defendant when (1) the nonresident defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); BMC Software Belg., 83 S.W.3d at 795; see U.S. Const. amend. XIV, § 1. "The exercise of personal jurisdiction is proper when the contacts proximately result from actions of the nonresident defendant which create a substantial connection with the forum state." Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).

         The plaintiff bears the initial burden of pleading "sufficient allegations to bring a nonresident defendant within the provisions of the [Texas] long-arm statute." BMC Software Belg., 83 S.W.3d at 793. Once this burden is satisfied, to challenge personal jurisdiction, the defendant must file a special appearance negating all bases of personal jurisdiction asserted by the plaintiff. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software Belg., 83 S.W.3d at 793; El Puerto de Liverpool, S.A. de C.V. v. Servi Mundo Llantero, S.A. de C.V., 82 S.W.3d 622, 628 (Tex.App.- Corpus Christi–Edinburg 2002, pet. dism'd w.o.j.).

         Whether the trial court has personal jurisdiction over a defendant is a question of law. BMC Software Belg., 83 S.W.3d at 794. Thus, we review the trial court's ruling on a special appearance de novo. Id. The trial court determines the special appearance by referring to the pleadings, any stipulations made by and between the parties, any affidavits and attachments filed by the parties, discovery, and any oral testimony. Tex.R.Civ.P. 120a(3).

         If the trial court does not issue findings of fact and conclusions of law, we must imply all facts necessary to support the judgment if those facts are supported by the evidence, and we presume that the trial court resolved all factual disputes in favor of its ruling. BMC Software Belg., 83 S.W.3d at 795; Glattly v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 805–06 (Tex. 2002)). Any implied findings are not conclusive and may be challenged ...