*1 error, In assignment its third Ameri
can Home maintains that this court erred in
holding factually that the evidence was suf
ficient to jury’s answers permanent incapacity “by
total and issues
failing apply proper legal test to the appel- that there was no evidence that
lee’s return to work was as a [Coronado’s] effect,
result of necessity.” economic In argues injured
American Home that an
worker who returns to the same work after precluded
an injury is from a total and
permanent incapacity recovery unless there
is injured evidence that worker re
turned to work out of economic necessity.
We disagree. See Traders & General Ins. Heath,
Co. v. (Tex.Civ. 197 S.W.2d
App. e.); writ ref’d n. r. — Galveston Digest, see also 39A Texas Workmen’s Com
pensation, 840, 1636, Key Numbers for oth
er cases to the same effect. The third
assignment of error is overruled. rehearing
American Home’s motion for
overruled. HOUSTON, INC., Appellant,
CARBONIT BANK, al., Appellees.
EXCHANGE et
No. A2744. Appeals
Court of (14th Dist.).
Houston
Jan. 1982.
Rehearing Denied Jan. *2 Bradt, Minns, Izen, Bradt Associ- &
L. T. ates, Houston, appellant. Knox, Deem, A. L. Paul D.
James James Tubb, Schoonover, Vial, Hamilton, Koch, Dallas, Stradley, appellees. Knox & part of BROWN, J., instant case is controlled C. Before J. CURTISS specifically states that PRICE, 120a which JJ. Rule JUNELL and judgment, not “Every appearance, prior to JUNELL, Justice. general compliance with this rule Inc., 1, 1976, Rule plain- January Appellant, appearance.” Before allowing below, provision from an appeals 120a contained tiff *3 however, special amendments; date the sustaining the first amended on that read, pertinent by each of the de- appearance motion filed amended so as rule was herein, fendants, dismissing appellees and part, follows: as reverse and remand plaintiff’s case. We shall be made special appearance . . . hearing special appearance for a new privi- plea of prior filed sworn motion motion. mo- plea, pleading or any other lege or tion; however, plea of that a provided, on a letter Carbonit filed suit to recover or plea, pleading any other privilege and purportedly issued guaranty which in the same may be contained motion by Exchange Bank and delivered Carbon- subsequently thereto filed instrument or between it in connection with a contract appear- special waiver of such without Petroleum and Cross ance; to cure de- may be amended and 900,000 barrels of Corp. purchase for the added.) (Emphasis fects. representative A Nigerian crude oil. Exchange Bank’s Southern Cross delivered Rule the amended argues that Appellant to Carbonit. Southern spe permit an amendment does oil, and Carbonit Cross did not deliver the but to cure defect appearance motion cial made demand under the letter of pleas privi only allows amendments Burchette, and Peter Bank or motion plea, pleading lege any or other vice-president. signed letter as who had mo special appearance subject to the filed unanswered; and Car- demand went Said rules that certain Appellant contends tion. Court of Fort bonit filed suit in the District interpreta and relating the construction Texas,- against appellees, County, Bend Rules of Civil apply to the tion of statutes alleging jurisdiction under Tex.Rev.Civ. to sustain require this Court Procedure (Vernon Supp.1980- Stat.Ann. art. 2031b We disa point. position on this appellant’s 81). Secretary of Process was served on the relat provides procedures gree. Rule 120a of Texas. State motions, and special appearance ing only to appearance mo- Appellees special filed a amend that the addition it is clear to us 120a, challenging tion under Tex.R.Civ.P. amended to may be the clause “and ment of over the jurisdiction permit of the Texas court intended cure defects” appellees on the persons property appearance mo special amendments of grounds appellees are non-residents concedes Appellant to cure defects. tion minimum con- Texas do not have those v. First Continen cases of Dennett that the (Tex. Texas that will tacts with the 384 Corp., 559 S.W.2d Investment tal jurisdiction 1977, writ), Stegall over constitutionally no Civ.App. — Dallas (Tex.Civ. motion was Cohn, them. The 427 592 S.W.2d Stegall v. & and, thus, comply with 1979, writ), did not both hold not verified Worth App. — Ft. However, may 120a. requirements Rule appearance a motion, hearing was held on that but claims before a defects to cure amended right amended appellees properly they verified are wrong. filed a We think cases are subsequently appel special appearance which was overrule them. We follow and we following hearing. a granted of error. point first lant’s appellant com- error points of In several appellant error point In its first erred in sustain- below plains that the court general contends that made appel- motion of spe ing filing unverified pearance by first an introduced evidence basis of argues that the lees on the appearance. Appellant cial
829
during
fact,
of that motion.
It con-
such refusal
make an admission of
tends that
finding
court erred in
except
the fact of
any
not evidence of
the letter of guaranty made the basis of the
Sylvestine,
292
such refusal. Halbert
suit does not call
require any per-
for or
S.W.2d 135
— Beaumont
formance in
plaintiff
Texas
Furthermore,
writ).
any answer to
not rely
did
repre-
its detriment on the
which volunteers an
request for admissions
sentations made in said letter. Other
unresponsive explanation constitutes
sur-
points complain of trial
errors
in find-
binding on the
plusage and
evidence
is not
concluding
that no defendant
Id.; Mosby v. Texas
P.
requesting party.
&
Texas,
committed
tort in
did business in
Co.,
(Tex.Civ.App.—
Ry.
191 S.W.2d
did
purposeful act in Texas or
m.).
El
ref’d w. o.
In
Paso
writ
had minimum
permit
contacts sufficient
addition,
admissions are not
one defendant’s
personam jurisdiction.
any other defend
legally
admissible
Although
points
of error should have
Kimmons,
Bryant
ant.
*4
stated,
been more precisely
we will consider
1968, writ).
(Tex.Civ.App.
— Austin
them as challenges
sufficiency
of the
hearing
appearance
special
At the
evidence to support
the trial court’s find-
many
below
into evidence
there was offered
ings and conclusions. For the reasons set
the
requests for admissions and
defendants’
forth hereinbelow we hold the evidence in-
many unresponsive
denials thereof and also
sufficient
to support
finding
the
requests
admissions. Under
answers to
for
conclusion that no defendant committed
the
above we will not
authorities cited
con
any tort in Texas.
any
unresponsive
sider
of such denials or
At the hearing
special
appearance
the
following summary
answers in the
of the
only
motion the
evidence offered was the
evidence.
testimony of
Russell,
Theodore
vice-pres-
G.
for admissions were
requests
Identical
Carbonit,
ident of
certain written instru-
defendants, all
submitted to all individual
ments (including a
copy
the letter of
responses
of whom filed identical
thereto.
guaranty),
requests for admissions directed
only
admissions
the follow-
Such
establish
to the individual defendants and their an-
ing:
private
Exchange Bank
bank
swers thereto and requests for admissions
operates
exists in and
under the laws of the
directed to Exchange Bank and the court’s
principal place
has its
Iowa and
deeming
order
said requests admitted.
Iowa;
(the alleged
A
business in
Exhibit
Upon
special
a
entering
appear
guaranty)
is a true and correct
ance under
120a
Tex.R.Civ.P.
had
signature
bears the
copy
original
of the
the burden of
lack
to show
of amena
Inc.,
Burchette;
Houston,
of Peter
Carbonit
bility
long-arm
process.
Cary,
Read v.
with
corporation
is a Texas
offices in Hous-
(Tex.Civ.App.
It is
to note that when
and was delivered to
Texas;
answering party
Houston,
an
denies
refuses to Carbonit in
re-
Carbonit
lied on
Bank’s letter
BURCHETTE
PETER
ship which
VICE PRESIDENT
diverting
& CASHIER
pick up
dispatched
had chartered and
SCOTT
INEZ
oil;
crude
Carbonit understood
ASSISTANT
would be
provided
bond or
CASHIER
payable in
EXCHANGE BANK
Before the
DAVIS COUNTY’S OLDEST
requests for admissions
Carbonit had filed
BUSINESS HOUSE
Exchange Bank.
directed to defendant
BLOOMFIELD, IOWA 52537
those di-
requests
These
were identical to
September
rected to the individual defendants. On
Houston, Inc.
any re-
Exchange Bank’s failure to make
Loop
2190 North
West
thereto,
sponse
signed an order
the court
Houston, Texas 77018
such
deeming
except
all
two of
ATTN: Mr.
W. Johnson
Richard
Exchange Bank.
admitted
defendant
you
This is to advise
Cross
The
this court shows that
record before
Corporation
Petroleum
has the financial
when the
order was
effect
ready, willing and able
capability and is
appearance motion was heard and when
provide guarantee
in the amount of
dismissing
signed
the case
$100,000.00 you through
this bank
although
the trial court
certain actions of
900,000
delivery
Bonny
barrels
taken
the case was dismissed evidence
after
Light
petroleum
Nigeria.
crude
from
*5
trial court to
part
an intention on the
of the
into a tanker
Said crude to be loaded
disregard
deeming the re-
prior
by you
lifting
nominated
for a
date of on
Exchange Bank we
quests admitted. As to
September
or about
1978. Firm lift-
of the
that
consider as evidence all
upon approval
date to be established
by
were deemed admitted
said court order.
by
Nigerian
of the nominated
tanker
Exchange
is as follows:
Such evidence
government.
at
the time the
partnership;
Bank is a
Should Sould
petroleum
crude
[sic]
guaranty
was issued all defendants
not be made
loading
available for
expected the instrument would be delivered
nominated
lifting
tanker when the
date is
Carbonit;
by
guaranty
on
to and relied
approved by
Nigerian
government,
in
at its office
was delivered to Carbonit
$100,000.00
the amount
paid
of
will be
to
Texas,
Houston,
and
and Carbonit acted
this bank
the South-
guar-
on the
changed
position
its
in reliance
ern
Corporation
Cross Petroleum
account.
on
anty; Carbonit made demand
guarantee
This
subject
always
delays
to
un-
payment
Peter
Bank and
Burchette
or failures to load due to acts of God
expected
Exchange Bank
guaranty;
der the
majuere
and/or force
[sic].
guaranty
would be delivered Carbon-
Texas;
PETER BURCHETTE
all of
it at its office in
guar-
Vice President
regard
with
Carbonit’s actions
Texas;
Burchette)
(signed
Peter
Peter
place in
anty have taken
authority to cause
Burchette had the
Carbonit had the initial burden to
and deed of
guaranty
be issued as the act
allegations
make sufficient
bring
defend
Exchange Bank.
ants
provisions
within the
of article 2031b.
Following
guar-
the letter
copy of
Edgar,
McKanna v.
(Tex.
388
927
S.W.2d
anty
introduced into evidence at the
1965); Arterbury v. American Bank &
appearance hearing:
Co.,
Trust
553
943 (Tex.Civ.App.—
S.W.2d
1977, writ);
EDWARD BURCHETTE
Texarkana
Cary,
no
Read v.
PRESIDENT
«31 McGraw, (Tex.Civ.App.— 564 120 S.W.2d entering into a mail or oth- contract 1978, writ); Beaumont Texas Gas Prod plaintiff, Texas, with a resident of erwise Rowan, Corp. (Tex. ucts 317 v. S.W.2d 815 performed which contract was to in Civ.App. Worth writ dism’d w. o. party or part by whole in either within the — Ft. j.); 13 Tex.Jur.2d Contracts 298. The § pleading In the State same Car- ad that the letter alleged bonit that defendants had commit- mailing dressed to Carbonit Carbonit’s part ted tort in whole or in in this in begin address in in Texas was stated they guaranty, that had issued a letter of ning place of the letter does fix the it to be caused transmitted to Southern Cross, payment at offices in Texas. expected Southern Cross to deliver it Personius, (Tex. 242 Carbonit, Johnston v. expected it, S.W.2d rely Carbonit to Civ.App. writ); 13 Antonio intended to not honor the — San Tex.Jur.2d Contracts § thus intended to Carbonit. In our defraud opinion allegations these were sufficient to allegation de plaintiff’s As to bring provisions defendants within the a tort in or fendants had committed whole article 2031b. part in we in the State hold that Upon entering special appearance under sustain their defendants failed to burden Tex.R.Civ.P. 120a had the burden proving amenability long-arm lack of long-arm of lack amenability process and that the evidence is insufficient process under Cary, article 2031b. Read v. findings court’s the trial 299; Brown, 615 S.W.2d at Brown regard. in The trial court conclusions 571; Crook, Hoppenfeld found concluded that none of S.W.2d 52. or any tort in whole defendants committed
As to plaintiff’s allegations part purposefully did this State defendants had entered into a contract act or consummated transaction in this performed which in whole or in State. None of the individual defendants part by either party State, within the we testified at the hold defendants sustained the pearance prop burden motion. All evidence of proving lack of amenability long-arm erly hearing is summarized admitted at the *6 process. The evidence admitted at spe the above. does not include Such evidence cial hearing shows conclusively proof alleged that the defendants’ acts com the letter of guaranty, alleged the in plained by plaintiff of did not occur contract sued upon, not per to be proof of Texas. There is no that the letter formed in letter of The brought by defendants was not did not call for any performance by Carbon- personally and here delivered to to Texas it. only performance contractual representative the of Cross with called for its contract with request that it be delivered to Carbonit. Southern Cross. par Defendants were not to The is insufficient evidence therefore contract, ties findings contract is support the trial court’s and con the one sued upon herein. The only clusions committed no tort that defendants performance called for the letter part requires of in whole in Texas. This or in guaranty was the payment be made to court’s order us to reverse the trial sustain Carbonit. argues that the letter motion dis special appearance the guaranty requires of payment such missing all defendants. the case Houston, However, made Carbonit offices in opinion at its that in we are of disagree. Texas. We guaran The letter of re justice interest the case should be of ty says nothing place payment. about the trial of the manded for a new In a contract requiring payment pearance Main Bank & Trust motion. money place payment ordinarily Nye, 571 S.W.2d — El regarded e.). to be the payor, domicile if n. A retrial Paso writ ref’d r. says the contract nothing place about the personal jurisdiction issue will afford payment. Dairy Land ad- ample opportunity O’Pines Products v. the trial court vanee of such retrial to determine whether for admis- deeming requests
the order GENERAL TELEPHONE COMPANY OF Exchange Bank is to sions admitted as to SOUTHWEST, Appellant, THE give aside and to remain in effect or be set prepare thereafter parties ample all time PUBLIC UTILITY COMMISSION OF will un- for retrial. Also a retrial TEXAS, Appellee. ap- the confusion doubtedly eliminate No. 13491. parent uncertainty concerning the burden inadmissibility of denials and the Appeals Court of unresponsive answers Austin. admissions. Feb. 1982. is re- judgment The of the trial court Rehearing Denied March for new is remanded versed and the cause issue raised personal jurisdiction trial on the of all de-
fendants. Justice, BROWN, Chief dis-
J. CURTISS
senting. respectfully
I dissent. agree
I of what is said with much majority ex- opinion
well reasoned Sep- guaranty of
cept my that in view the that the “amount providing
tember $100,000.00 paid will be to Carbonit in Hous-
this bank” addressed
ton, was and should be a sufficient Texas jurisdic-
promise payment in Texas not believe that purposes.
tional I do place pay- cited relative to
authorities The contrary conclusion. compel
ment subject
voluntary agreement is sufficient on behalf of the
appellee to suit in Texas Therefore, I re- promisee.
Texas would court, ren- of the trial judgment
verse the *7 appear- judgment overruling
der case for trial on the
ance and remand the
merits.