*1 866
ing an expert report, or whether it was the joins Justice TAET Chief Justice Palacios’ provide failure to an expert re- SCHNEIDER’S dissent from the port, I would hold that the Palacios failed overruling of rehearing en banc. law, do so as a matter of so that it does not matter which standard of review is Therefore,
used. I would overrule the Pa-
lacios’ first points two of error.
Conclusion
I affirm would the trial court’s order
dismissing the case. SCHNEIDER,
MICHAEL H. Chief
Justice, dissenting on overruling of motion
for rehearing en banc.
I respectfully dissent from the overrul-
ing of appellee’s motion for rehearing en DOWELANCO, Appellant, agree
banc. I with and join would Justice Taft’s dissenting opinion, but I sepa- write v. rately to emphasize that thе standard of review discretion, should be abuse of rath- BENITEZ, Appellee. Anacleto Rios er than that for summary judgment. Not only have No. other courts 13-97-780-CV. reviewed dismissals under section 13.01 of article 4590i for Appeals Court of discretion,1 but, conclude, abuse of I Corpus Christi. plain 13.01(Z) language of subsection also requires such “A review: grant shall 7, Oct. 1999. a motion challenging adequacy of an expert report only if it appears to the
Court, after hearing, that report does represent good faith effort to comply
with the expert definition of an report
Subsection(r)(6) of this section.” Tex.Rev. (Ver- 4590i, 13.01(Z)
Civ. § Stat. Ann. art. added). Supp.1999)
non (emphasis I would plain
follow that language apply
abuse-of-discretion standard here. Mi-
chael H. Schneider Chief Justice
A majority of the Justices voted to
overrule the motion for rehearing en banc. 14-98-00843-CV, 1999, Gagliardi, denied); Elboar, Tibbetts v. No. pet. Estrello v. 965 6, 659, slip op. 754, 2 (Tex.App.— 1998, S.W.3d (Tex.App. S.W.2d Worth - Fort 1999, h.); Sept.9, Kim, Houston pet. [14th Dist.] pet.); no Nguyen no v. also 3 S.W.3d Schorp Baptist 146, Sys., v. Mem'l Health (Tex.App. S.W.3d [14th Dist.] - Houston 727, 730, 1999, (Tex.App. 1999, h.) (denial Antonio pet. no no of motion to extend - San h.); v. Lakshmikanth, pet. expert 1 S.W.3d report); time to file Martinez Roberts v. Medical 144, (Tex.App. Corрus City no Hosp., Dallas - h.); pet. Presbyterian Sys. denied) (same); Healthcare v. App. pet. Afan - Texarkana gideh, (Tex.App Horsley-Layman Angeles, . -East denied); Tice, pet. land Wood (Tex.App. pet.) 536-37 - Texarkana (same). (Tex.App. Antonio - San
insecticides, pesticides, pur- and herbicides Mexico. When chased from DowElanco note,1 on the defaulted DowElanco, note to assigned Mexico that maintains an company an affiliated business in office in Texas conducts Texas.2 DowElanco filed a lawsuit to recover on the note. Rios seeking personally process served with federal suit and filed an answer *4 21, 1995, stating admits the “[defendant I of Plaintiffs allegations paragraph original residing an alien petition he is Jacobson, Law, Terry at Attorney L. County....”3 The Hidalgo Corsicana, Appellant. prejudice court the suit without dismissed allege DowElanco failed to or es- because Guerrero, Ramirez, Jose R. Montalvo & diversity сitizenship. complete tablish McAllen, Appellee. filed DowElanco the instant lawsuit 1, 1995, seeking state on December court Before Justice Chief SEERDEN and on the note. After two recover same Justices HINOJOSA and YÁÑEZ. failed, the personal at service
attempts trial found North First court that “8701 OPINION Lane, McAllen, West Texas 78504 been shown to be a correct residential Opinion by Justice YÁÑEZ. [Rios]” address for and authorized substi- appeal sole issue is whether tuted McAllen residence. serviсe the trial properly court dismissed a suit July served Rios On sheriff based on a lack of petition by posting the citation and over the defendant. We reverse and re- front of the McAllen residence. On door mand. special ap- Rios filed a jurisdiction. objecting pearance alleges DowElanco Anacleto Beni- objection The trial court sustained Rios’s (“Rios”), citizen, tez a Mexican executed a and DowElanco’s action. dismissed $1,000,000 promissory payable note trial that Rios court’s order found The pur- DowElanco Mexico Mexico. note was a minimum contacts pose to secure line of established with by credit but the court does not extended DowElanco Mexico to State of C.V., Rajsa person be- corporation S.A. de a of [Rios’s] owned have by personam jurisdic- Rajsa and controlled Rios. distributed cause to exercise outstanding ap- are 1. The the note anco claims it and DowElancо Mexico balance on is $400,000. proximately ownership and control. under common venture, joint 2. a DowElanco is owned Original 3.Paragraph I Petition of Plaintiff’s Services, corporation, Rofan Delaware federal case states: "Anacleto S.A., Lilly, corporation. Eli a Swiss DowEl- an alien who resides in Benitez is corporation anco Mexico is Mexican pro- County, may He be served with B.V., wholly-owned subsidiary of DowElanco Lane, N. First cess at his residence аt 3701 EPCO, which Inc., owned Rofan Services McAllen, West Texas 78504.” Thus, corporation. an Indiana DowEl- comport tion over preceded by [him] would with sometimes be the resolution play traditional of fair notions and sub- of underlying disputes. factual J & J Ma justice guaranteed by stantial the Due rine, Thus, appellate S.W.2d at Constitution, Process Clause of U.S. generally courts apply sufficiency of the therefore motion objecting to [Rios’s] evidence standard of review when review should be sustained. ing special Hotel appearances. Partners Marwick, v. KPMG Peat requested findings of fact denied). 632 (Tex.App. writ and conclusions of law. The trial - Dallas appellate court conducts a de parties asked the proposed to submit find applying novo review when to the law ings of fact and conclusions of law and the however, facts. parties Billingsley Equip., See Parts and complied; the court never findings Vose, issued of fact conclusions of Inс. v.
law. We presume the trial court App. [1st Dist.] writ de - Houston findings made the necessary support its nied) (reversing trial court’s dismissal of judgment. Implied findings of fact cannot suit personam jurisdic based on lack inof invoked, however, be when the evidence tion where facts were in dispute few establishes as matter law the issue to the dispute legal centered around the ef Smith determined. Zac & Co. v. Otis facts); fect of the also Hotel Partners *5 (Tex. Co., 662, Elevator 734 S.W.2d 666 116, v. Craig, (Tex.App.- 993 120 S.W.2d 1987). denied) 1994, pet. (holding Dallas correct standard of de novo when review is review
Implicit in the trial court’s order is a ing granting special ap trial court’s order determination not a Rios is Texas resident jurisdictional pearance proper purposes. ap DowElanco was the where issue order, challenges arguing the Rios is a plication jurisdictional of formula of the Alternatively, Texas resident. DowElanco play “minimum and “fair contacts” asserts that even if Rios is not a Texas justice”). substantial resident, the trial had in personam court because was served in this disputed. Few facts in case are personal juris- Texas and the exercise of primary The are whether issues the trial diction process does not violate federal due properly applied court Texas law concern requirements. residence, admissions, judicial and fed Thus, process eral due the facts. we to In objec order to succeed on his review de Rios is a novo whether Texas personal jurisdiction, tion to Rios was re jurisdictional purposes. resident for quired negate personam to of in all bases jurisdiction. v. Villa Siskind Found. for generally accepted meaning the of Educ., Inc., 434, 642 S.W.2d 438 “[p]lace term one “residence” is the where 1982). determining In whether he met his home; actually person’s lives or has burden, we review the all evidence that habitation; of dwelling place ... a place or court, including was before the trial the dwelling Corning house.” v. Car Owens plеadings, any stipulations made ter, (Tex.1999) 571 (citing S.W.2d parties, between the such affidavits and Dictionary (abridged 6th Black’s Law parties, as filed the may attachments be ed.1991)). Supreme rec The Texas Court discovery processes, the results of and any ognized meaning given that the to be the 120a; testimony. oral Tex.R. Civ. P. J & J “depends upon term the cir “residence” Marine, Le, Inc. S.W.2d in surrounding person cumstances the (Tex.App. Corpus pet.). - upon largely depends pres volved and the Volition, ent individual. intention of the personal juris
The existence
intention,
are all elements to
question
diction is a
law that must
and action
be
omitted). Pleadings in another case
person
tions
determining
considered
where
resides_”
Bartlett,
party’s posi-
inconsistent with a
that are
Mills
(Tex.1964)
quasi-admis-
are
in a
action
(holding
present
a candidate
tion
sions,
county
residency
generally
are
conclusive.
office met six-month
but
quasi-admission
is treated
under
code where he
Id.
requirеments
election
judicial
it
county,
appears:
admission when
attended law school in another
as
(1)
during the
county,
was made
spent
night
never
the
visited
the declaration
(2)
judicial
the
county,
employment
proceeding;
an
course of a
entered into
there,
fact
contrary
statement
is
essential
contract
declared an intention
theory
of re-
county
of that
embraced in
declarant’s
upon
become
resident
defense;
(3)
may
is
graduating).
covery
An
have
the statement
individual
mistake;
deliberate,
not a
Highway
more than
clear and
one residence. Texas
County,
admis-
Dept.
giving
v. Kimble
conclusive effect
contrary
public
(Tex.Civ.App.
writ
sion
not be
ref'd
will
- Austin
based;
n.r.e.);
Highway
policy
Hall Co.
on which
rule is
D.C.
v. State
(Tex.Civ.
Comm’n,
is
the statement
not destructive of
n.r.e.) (com
theory
recovery.
Id.
App.
offering party’s
Paso
writ ref'd
— El
Mendoza,
pany may
Mississippi
(citing
resident
time).
Texas at
same
obviously
this case
sat-
statement
per-
requirements, except
isfies all of the
ju
one.
admis-
haps the third
Because Rios’s
dicially
litiga
admitted
residency
part
of his
sion
tion that he is a Texas
and that
resident
argument
successful
federal court
admission
conclusive
subject
lacked
matter
because
*6
judicial
We
A
agree.
case.
admission is a
diversity
citizenship,
there
no
we
was
proof, usually
formal waiver of
in
found
question
are
in
also satisfied the statement
pleadings
stipulations
parties,
or the
of the
аnd not a mistake. We
deliberate
dispenses
production
with the
of evi
pleadings
hold
in the federal
that Rios’s
on
admitting
dence
an issue and bars the
he was an
admitting
court case
party from disputing it. Mendoza v. Fi
21,
must
County resident
1995
Underwriters,
Inc.,
delity &
Ins.
Guar.
given
in this case.
conclusive effect
692,
(Tex.1980);
694
De La
(Tex.
Elzinga,
Pena v.
922
S.W.2d
record.
In his
We now examine the
App. Corpus
pet.).
This
Rios
he and his wife
deposition,
stated
-
public policy
McAllen,
rule is based on the
that it
in
purchased a house in
Tеxas
unjust
permit party
would be
to recov
he transferred his
1989. Rios also claimed
er after
sworn
out of
family.
he has
himself
interest
residence
clear,
testimony.
unequivocal
only
De La
contains
one
record
Pena,
(citing
grant-
at
Rios
his wife as
showing
S.W.2d
United
deed
Carr,
property.
Rios
Fidelity & Guar.
v.
ees of the residence
States
Co.
in
ton
stated that his wife and children resided
(Tex.Civ.App.-San
S.W.2d
An
ref'd)).
May of
the McAllen house from 1990 to
io
writ
private
1995. Rios’s children attended
case,
May
Riоs
Pleadings
school in Texas until
1995.
particular
case,
Tex-
also
that he used to come to
purposes
of use
are re
testified
judicial
up
as to
checks for Mexican busi-
pick
formal
admissions.
garded as
exported
other
produce
had
County Velasquez,
nesses that
Cameron
S.W.2d
“every now
products
companies
to Texas
(Tex.App. Corpus Christi
782-83
-
n.r.e.) (on
(cita-
stay at
rehearing)
Rios said he used to
writ
then.”
ref'd
the McAllen
days
house two or three
per
over him a Texas
month
stays
and now
there
eight
six to
court is proper. The broadly-interpreted
days
year.
electric,
Rios pays
gas,
long-arm
Texas
permits
statute
state
and telephone
personal
bills for the house. Rios
courts to exercise
holds a
over
Texas driver’s license
non-resident
applied
defendants under cer
circumstances,4
tain
security
a social
see Tex.
number
Civ. Prac. &
17.042,
§
Rios stated
and extends
far
he has held a United
as
as
States
Rem.Code
requirements
the federal
tourist visa
constitutional
since 1959 and has maintained
process
due
allow.
Royal
a bank account at
Guardian
Ex
a McAllen bank for
Assurance,
change
English
Ltd. v.
twenty
twenty-five
China
years. Rios files
P.L.C.,
(Tex.
Clays,
tax
States,
income
returns in the United
1991); Billingsley,
icz, 462, 477, U.S. S.Ct. (1985)) assuming, Even for the sake of (holding L.Ed.2d 528 that even argument, established, had established non minimum where contacts were status, however, rеsident the exercise of an requiring English insurer to submit emphasizes 4. DowElanco in its brief that it serve Rios. long-arm never has relied on the statute to with an dispute English virtually insured to a for- ed no evidence on the relevant judicial eign system nation’s did not com- factors. justice). with fair
port
play and substantial
Supreme
recognized
As the Texas
Court
in
Burden on Rios
Royal,
Guardian
when the nonresident
any
Rios never offered
as to
contacts,
evidence
defendant
minimum
establishes
him.
defending
how
this suit would affect
in
“[ojnly
rare cases ... will the exercise
he
in his brief that hav-
jurisdiction
comport
with fair play
ing to defend a suit in Texas would be
justice.”
231;
and substantial
Id. at
he
burdensome because would have to hire
Schlobohm,
(“Be-
pay
lodging
for travel and
for himself and
experts.
his
must
consider various fac
tors
in determining whether a Texas
in
engaged
Rios has
a multitude of activ-
court’s exercise of
over Rios is
ities in Texas for the last two decades:
(1)
reasonable. These factors include:
accountant,
employing
banking
in Tex-
(2)
defendant;
burden
the interests
as,
home,
purchasing
owning
land and
of the forum
adjudicating
state in
the dis business,
in
participating
orga-
service
(3)
pute;
plaintiffs
interest
in obtain
Any
nizations.
burden on Rios is mini-
(4)
relief;
convenient and effective
mized
in
presence
Hidalgo County
judicial system’s
interstate
in
interest
ob
availability
for other
and the
activities
taining the most efficient
of con
resolution
lodging.
house McAllen for
Modern
troversies; and
the shared interest of
travel and communications also reduce the
several states
furthering fundamen
placed
burden
on Rios.
Having engaged
tal substantive
policies.
social
Guardian
sophisticated
activities
this state
Royal,
must considered: unique bur placed upon dens the defendant who must hand, On the other DowElanco has ar- *8 defend in foreign legal system; himself a significant obtaining ticulated a in interest procedural pol substantive relief in that argues Texas. of icies other nations whose interests are because Rios has bank prop- accounts and affected as well govern as the federal state, erty in it will be more convenient in foreign poli ment’s interest its relations judgment and efficient for it to enforce a (citing cies. Id. Asahi Metal Indus. Co. v. court, from a Texas rather than a Mexican Court, 102, 113-15, Superior 480 U.S. 107 court. (1987)). 1026, 94
S.Ct. L.Ed.2d 92 To argument, counter DowElanco’s though Even Rios points had the burden of procedures Rios to Texas for en- showing jurisdiction the exercise of forcing money judgments rendered in unreasonable, over him was present- foreign countries. See Tex. Prac. Civ. & (Ver- §§ Ann. Resolution Rem.Code 36.001—36.008 Controversies Efficient of 1997). procedure recogniz- non for courts are more Mexican judgment filing an foreign a includes already efficient because DowElanco copy foreign judgment authenticated of a judgment separate in suit to obtained a clerk providing with a court notice in against Rajsa, note filed recover on a judgment debtor. Tex. PRAC. & Civ. eight days court after Mexican (Vernon §§36.0041, 36.0042 Ann. Rem.Code persuaded are not that com- action. We circumstances, the Under certain to one other paring litigation the instant judgment may reсognition debtor contest legal supports this foreign system in a case foreign judgment. of the Tex. Crv. PRAC. conclusion. (Vernon 36.0044, §§ 36.005 & Rem.Code 1997). Because the certification of a for- Mexico Policies the United States and of judgment is eign separate, possibly the current Finally, ignore we cannot may legal proceeding, contested it add policies of atmosphere and the economic step judgment.
another enforcing regard and Mexico with the United States is not as Obtaining judgment Mexican nations. to free trade between these convenient efficient for DowElanco to the foreign impediment see no relations obtaining judgment. as Texas jurisdiction Rios. exercise of over a debt for of This is a suit collection Interest
Texas’s activity. The credi- commercial related to alleged in Rios asserts Texas has no interest and the tor is located Texas on our Based keeping litigation this because Dow- here debtоr has assets factors, we all the relevant actually evaluation of parent company Elanco’s will ben- note; jurisdiction exercise of hold the efit from the collection of the pro- due not over Rios does violate to DowEl- exclusively assigned note is not requirements. cess anco; and no residents have been Texas injured by any act in Texas because per- Having determined the exercise He product assignment. suit is the of an un- proper is jurisdiсtion sonal over Rios further contends taxpayers theories, we need separate der two to bear the ex- County should not have proper address whether county pense litigation unrelated to ser- virtue of Rios’s service substituted haven Hidalgo County not be a should Proce- Rule of Civil pursuant vice Texas forum-shopping litigants. 106(b). Tex.R.App. 47.1. P. dure See negate all bases though executed Rios failed to Even the note was Because jurisdiction, the trial Mexico, personam it to a of subsequently assigned person- sustaining objection erred in busi- corporation conducts substantial DowElanco’s dismissing al in Texas. evidence that ness There is trial court is judgment action. Texas, employs DowElanco has office pro- and REMANDED REVERSED residents, approxi- fifteen Texas and sells opinion. consistent with this ceedings $35,000,000 mately products worth annually. has an econom- this state Justice Concurring Opinion by lo- Chief ensuring
ic interest that businesses J. SEERDEN. in its ROBERT cated here can collect debts courts. *9 say residents are cannot that Texas by Chief Justice SEERDEN. Opinion Moreover, litigation. not affected this Hidalgo disposition
given agree majority’s Rios’s numerous activities I with the here, case, express to filing separately suit in write County and his but assets reasoning. appears logical. my this forum to be (1984); majority Royal relies on an admission L.Ed.2d 404 Guardian Ex Assur., change English Ltd. v. China “an the federal lawsuit that Rios alien (Tex. P.L.C., Clays, residing Hidalgo County” support to personal jurisdiction. assertion of Howev-
er, “residence” or “domicile” is a term of states, majority stipulated As the regard art with to the requirements for that he had “minimum contacts” with Tex- personal jurisdiction, and it is not estab- of the support part as sufficient to first by conclusory allegations lished jurisdiction personal test for over a non- does, not, defendant Accordingly, or does “reside” resident. there is no need to rely upon prior evi- particular admissions or other particulаr state at time before dence to show minimum contacts. the lawsuit was filed. Rather, I believe that this Court should Conclusory generally statements are solely concentrate on the facts of record competent considered evidence. part show second the test concern- Assoc., Surety v. & Loan Sav. justice. fair ing play substantial (Tex.1972); Gordon v. Western presented virtually As Rios no evidence Co., Steel 749 (Tex.App.— litigating to show that Texas would be denied). Corрus pet. This is burden, that the policy interests of Mexico especially true when conclusory state adversely affected, any would be other ments are by allegations countered jurisdiction to deny personal reason based set out in detail the factual negat basis play on considerations of fair and substan- particular City conclusion. Har that, justice, agree majority tial I with the lingen Vega, v. according when the facts are examined writ). App. Corpus Christi — pаrt compliance second of the test for process, nothing with federal due there is case, In the present disputes resi- jurisdic- extending personal unfair about dence in Texas alleges his affidavit that Therefore, agree tion Rios. I that the over Mexico, though residence he objection trial court in sustaining erred frequent admits to with contacts Texas. dismissing Accordingly, I would not personal assume present action. jurisdiction on a vague prior allega- based Rather, tion of residence. I would look to
the test for asserting over a according
nonresident continuing
and substantial contacts with the state of The United Supreme States Court di Texas, Appellant, STATE vides the federal due process requirements v. over a nonresi dent into parts: defendant two whether SHAW, Appellee. Mark Willard the nonresident defendant purposely No. 05-98-00889-CR. established “minimum contacts” with Appeals Court of state; so, forum if whether the Dallas. jurisdiction comports exercise of with “fair play justice.” Burger and substantial Oct. Rudzewicz, 462, 105 King Corp. 471 U.S. (1985); 2174, 2183-84,
S.Ct. L.Ed.2d
Helicopteros Nacionales de Colombia
Hall, 408, 104 1868, 1872, U.S. S.Ct.