Mabry v. Reid

Osterloh, lawyer in could have where MABRY, Appellant D. of at County registry the Harris

updated not, torneys oversight but did ,v. court ob

negate the fact that the trial REID, Virgil Appellee. Osterloh, true tained his address. at 582. No. 09-03-343 CV. Appeals Court The trial court also found Ew- Beaumont. a claim. ton failed to establish meritorious action, petitioner’s a bill of review Dec. 2003. Submitted hearing is to preliminary burden March Decided as a establish that her claim is not barred to matter of law or that she is entitled contrary if

judgment on retrial Goldsmith, Baker v.

is offered. produced promis at 409. Ewton by Gayken

sory payable note executed undisputed It is that the Merle Ewton. court

note is default. The trial held precluded

that Ewton’s federal conviction showing of a meritorious claim on the

promissory pleaded guilty note. Ewton prac mail

committing fraud the dental promissory for which the is consider

tice Thus, might reasonably

ation. one antici

pate Gayken present will a defense to the follow, It

action on the note. does not

however, pursu that Ewton is barred from

ing her action on the note. hold that Ann Ewton established

We

prima claim in of her bill of facie appellant’s

review. The issue is sustained. judgment court’s is reversed.

We remand the cause to the

trial on the merits of the bill review. AND REMANDED.

REVERSED he to time. Charles

from time into, an oral entered and Reid which, in those visits during one of not to assert agreeing for Charles return agreement, Citation under his the claims as him same amount compensate would Strong Pipkin Bis- Dykeman, M. Greg later, Daniel years three Daniel. Over Beaumont, LLP, ap- for Ledyard, sell & $123,054 com- in additional was awarded pellant. pend- was Daniel’s claim While pensation. Bailey, C. Hoeg, L. Thurston Matthew asserting his from refrained ing, Charles Houston, Kurth, LLP, appel- for Andrews re- Citation When rights against Citation. lee. amount to the identical pay fused to (and relat- Charles, sued Citation Charles McKEITHEN, C.J., BURGESS Before entities) contract and for breach of ed GAULTNEY, JJ. and $123,054 plus fraud, damages of seeking interest, attorneys’ and costs. fees OPINION motion for filed a subsequently Charles McKEITHEN, Chief Justice. STEVE In Citation’s summary judgment. partial motion, asserted to this Citation response interlocutory appeal from This is an authority to have the that Reid did not of an granting special appearance order agreement. any settlement into defendant. Tex. Civ. out-of-state Prac. & had not as- (Vernon alleges that Citation 51.014(a)(7) Charles § Ann. Rem.Code authority prior to its lack of serted this Belgium, Supp.2004). See BMC Software 17, 2003, his motion response to January Marchand, 789, 793 N.V. However, summary judgment. partial (Tex.2002). We affirm the trial court’s on or interrogatory filed to an response order. “... stated July Citation about Mabry and his brother Plaintiff Charles authority to enter have the Reid did not Mabry of a metal Daniel were the owners agreement....” Beaumont, foundry in Texas. Ci- casting of purchased the stock Corporation tation Mabry filed a Sec- January On As foundry Mabry from the brothers. Petition, which add- Original ond Amended Mabry broth- part agreement, of that defendant, Reid, individually, as a Virgil ed Citation, signing of employees ers became was, for the Citation allegedly because non-competition employment identical time, capac- Reid’s raising the issue of first agreements. any agreement. it ity to bind judgment was summary partial motion for and Charles dis- Eventually, both Daniel special filed a subsequently denied. Reid due to them under puted the amount Rule 120a of appearance, pursuant Daniel notified employment agreements. Procedure, asserting Rules of Civil of Texas company’s alleged breach Citation of exercise of purported with arbitra- that the proceeding contract and de- Texas courts would him agreement. over required by the tion as Law, guar- him of Due Process prive Reid yet Virgil done so. of the United Citation, by the Constitution not a anteed employee was an special appear- regular of his States. part As Texas resident. ance, deposition filed his affidavit duties, visit various Reid would Citation’s De- “Response to Mabry filed a excerpts. visiting Beaumont including operations, Virgil provisions within fendant Reid’s Memorandum non-resident Support Virgil Evidence in of Defendant statute. 83 S.W.3d at 793. A Special Appearance.” challenging Reid’s the Texas court’s granted special negate juris over it all appearance. Reid’s must Id. dictional bases. “Whether court has Mabry appeal: raises three issues on personal jurisdiction a defendant over granting trial court erred question of American law.” Id.1 See also presented appearance because Reid Collection, Coleman, Type Culture per- no evidence that actions were his 805-06 Review scope formed within the course and of his Id; is de novo. see also Allianz Risk (2) employment with Corporation; Citation (Bermuda) Camp Ltd. v. S.J. & Transfer in granting the trial court erred Co., 92, 117 95 (Tex.App.-Tyler S.W.3d special appearance because Texas case law 2003, pet.). no “When a trial court does (which fiduciary holds the shield doctrine findings not issue of fact and conclusions of protects employee a from corporate per- special appearance ruling, law with its all jurisdiction sonal when all the individual’s necessary judgment facts the contacts Texas were on behalf of an supported by and are im the evidence employer) applicable corpo- is not when Marchand, 795; at plied.” 83 S.W.3d So Reid, employee, rate such as commits 12 Century Corp., low v. Assets (3) employer; tort on behalf of his and 512, 1999, (Tex.App.-Beaumont no 514 failing findings court erred to file pet.). appellate record includes ‘When of fact and conclusions of law. records, reporter’s and clerk’s these jurisdiction Texas courts’ over non implied findings are not conclusive and governed by resident defendants is the may challenged legal be or factual suf Statute, Long Arm & Rem. Tex. Civ. Prac. ficiency appropriate appellate (Vernon §§ 17.041-045 1997 & Code Ann. Marchand, court.” 83 S.W.3d at 795. Supp.2004), permits which the exercise of appeal, special ap “On we determine jurisdiction over non-residents do pearance pleadings, any on the basis of the business in the state. 17.042 sets Section stipulations by parties, and between the listing forth a of activities non-exclusive such affidavits and attachments as be doing which constitute business. Mar by discovery parties, filed the result chand, “doing at 795. The 83 S.W.3d any testimony.” Al processes, and requirement as the business” as broad (Bermuda) v. lianz Risk Ltd. Transfer permits. United States Constitution See Co., 117 at Camp S.J. & General Elec. Co. v. Ins. Guar. California Personal over a Ass’n, 923, (Tex.App. 997 S.W.2d non-resident defendant meets constitution denied); pet. Carrot “(1) al process requirements due when: Co., Friends, Computer Bunch minimum the defendant has established (N.D.Tex. Inc., F.Supp.2d state, contacts with the forum and 2002). court’s exercise of does not play

A traditional notions of fair and plaintiff has the initial burden offend Marchand, bring justice.” pleading allegations sufficient substantial case, Appellant Appellee pet.). applying an 1. Both assert that the and others That only, disap- appropriate “abuse abuse of discretion standard were standard of review is Acosta, Citing proved Supreme Court in discretion.” Eakin v. supra. (Tex.App.-San Antonio no Delta policies.” substantive social (citing Co. mental at 795 International Shoe Brands, at 510-11. 66 S.Ct. Washington, U.S. (1945)). non-resident 90 L.Ed. of Reid’s in this consists The record case himself purposefully must avail from both deposition excerpts affidavit conducting privileges benefits of hearing Mabry. was a There Mar foreign jurisdiction. in the business however, appearance; on the held chand, Burger (citing 83 S.W.3d at 795 testimony documentary or Rudzewicz, King Corp. v. 471 U.S. offered. 474-75, L.Ed.2d 528 105 S.Ct. Reid, The record establishes that (1985)). Random, fortuitous, or attenuated admitting subject of the Ma- although Defen contacts are sufficient. Id. discussed, denied that he brys’ dispute was conduct and with the dant’s connection to, fact, authority did in could required to such that he state is be with settlement reasonably anticipate in the being sued by depo Mabry. Mabry testified Brands, Delta Inc. v. Rau forum state. as to an oral settlement sition (Tex. Steel, 506, taruukki 118 510 S.W.3d upon understanding based his agreement filed). 2003, pet. “Personal App.-Dallas one of during in with Reid conversations if

jurisdiction exists non-resident de the By granting meetings. give minimum rise to fendant’s contacts motion, the made an trial court specific jurisdiction.” or general either that either implied factual determination “Specific 83 at 795. S.W.3d no oral settlement there was jurisdiction is if the defen established in the of the settle Reid’s conduct course is alleged liability dant’s arises from or By negotiation was not fraudulent. ment activity to an within the related conducted legally factually sufficient presenting jurisdiction at 796. forum.” Id. General act that that Reid committed no to a defendant’s refers situation where of justify a Texas court’s assertion would him, the contacts with forum state are continu an es jurisdiction negated over Reid Mabry’s systematic, jurisdictional ous and that the forum state of so sential element the Tex personal jurisdiction over the claim and eliminated the basis for exercise jurisdiction. French v. Glo if as courts’ even cause of action did the Cf. 739, rioso, (Tex.App.-San from or con not arise relate to activities (“[WJhere 2002, jurisdic pet.). Antonio no in the forum Id. No conten ducted state. upon the fact defendant com tion rests the jurisdiction in this tion is made ease that act, appear specially mitted a tortious the we by general jurisdiction, and established of can the exercise ing defendant defeat evaluating it. In do not consider whether not do jurisdiction by proving that he did jurisdiction of not of the assertion does alleged.”) is overruled. the act Issue One play traditional notions of fair fend justice, court will consider: substantial contends, as Mabry In second issue his (2) “(1) defendant, on the burden argument, the so-called an alternative that adjudicating of the forum state in interests does not shield “corporate shield” doctrine (3) in interest dispute, plaintiffs jurisdiction of Tex- personal from the Reid relief, obtaining convenient and effective a tort courts because Reid committed (4) judicial system’s interstate interest Because the employer. behalf of his on by Mabry resolution of obtaining allegedly most efficient committed tort controversies, interest making representa- the shared unauthorized tion, already have determined furthering funda- and we of the several states the trial court implied finding senting legally factually made an sufficient evi- representation that no such was made. dence that Reid no act committed We overrule Issue Two. justify would a Texas court’s assertion of him, negated over an es- Three, Mabry Issue contends this jurisdictional sential element of appeal court should abate the because the claim and eliminated the basis for the Tex- trial court findings issue of fact jurisdiction.” as courts’ However, and conclusions of law. a trial court need not findings issue of fact and jurisdic a court personal Whether has conclusions of law connection with its tion over a question defendant is a of law. ruling on a appearance. See Bru 116, Hotel Partners v. Craig, 993 S.W.2d no’s, Inc. Arty Food World v. Im d/b/a denied). 1994, 120 (Tex.App.-Dallas writ Inc., (Tex. ports, n. 2 law, In resolving question this a trial App.-Dallas pet.) (citing no Smith frequently questions court must resolve Shearson, Finstad, Barney Belg., fact. BMC v. Mar N.V. Software (Tex.App.-Houston [1st chand, pet.)); Ly Dist.] no Kendrick v. reaching When a decision to exercise or naugh, (Tex.App. decline based on the defen pet.); -Houston [14th Dist.] Tex. tort, dant’s commission of R.App. 28.1; and Tex.R. Civ. P. P. rely trial court only upon should the neces Issue Three is overruled. sary jurisdictional facts and should not AFFIRMED. reach the merits of In the case. other words, liability ultimate in tort is not a BURGESS, Justice, dissenting filed a jurisdictional fact, and the merits of the opinion. are not cause at issue. Portland Sav. & BURGESS, Justice, DON dissenting. Bernstein, Loan Ass’n. v. 716 S.W.2d I respectfully majority dissent. The (Tex.App.-Corpus writ Christi states: n.r.e.), grounds by ref'd rev’d on other Reid,

The record al- Austin, establishes Dawson-Austin v. 968 S.W.2d 319 though subject (Tex.1998). admitting the of the Ma- Accordingly, plain where the discussed, brys’ dispute was denied he tiff alleges an action tort that arose out to, fact, authority or did in of an act committed the neces agreement oral settlement with sary proof only purposeful act Mabry. Mabry testified de- was committed in this Ring State. Power position alleged as to an oral settlement Consultoria, Sys. v. Int’l de Comercio Y agreement upon based his understand- (Tex.App.-Houston [14th ing in during conversations with Reid Arterbury no pet.); Dist.] v. Am. meetings.2 one of Co., Bank & Trust writ). (Tex.Civ.App.-Texarkana They “By granting then conclude: jurisdiction, motion, deciding plea to the implied court made an weigh court factual the claims’ merits but determination that either there was only plaintiffs’ pleadings agreement no oral settlement or Reid’s must consider pertinent jurisdic conduct in the and the evidence to the course the settlement negotiation By pre- inquiry. County was not fraudulent. tional v. Cameron majority engage credibility testimony only establishing deposition 2. Does the in a they Mabry’s agreement? determination when describe (Tex.2002); Brown, Comm’n

Texas Natural Res. Conservation (Tex.2001); White, Blue, Dist. v. Indep.

Bland Sch.

547, 554-55 fraud.

A claim is portion of jurisdictional only facts the trial

should have considered were whether County and whether Jefferson matter. was a discussion about the

there discussions in fact consti-

Whether the one an oral fraudulent

tute beyond

go to merits case I jurisdictional facts. Consequently, holding on

disagree majority’s with the

issue one. I would reverse the appear- granting

court’s order

ance.

In Daniel re J. ESTRELLO.

No. 09-03-403 CV.

Court of Appeals

Beaumont. Oct. 2003.

Submitted

Decided March

Case Details

Case Name: Mabry v. Reid

Court Name: Court of Appeals of Texas

Date Published: Mar 4, 2004

Citation: 130 S.W.3d 385

Docket Number: 09-03-343 CV

Court Abbreviation: Tex. App.