*1 surrounding enactment cumstances Conclusion of the MFA the mission” MFA and “stated reasons, foregoing Based on the we con- 1011); Kumets, see forth in section as set analysis, under the clude that Fabe/Pireno history (considering “the S.W.3d at 718 law section 74.451 a “enacted for the which article 4590i and the times” out of of purpose regulating the business of in- interpreting phrase in 74 arose Chapter meaning surance” within the of the first statute). the within 1012(b) of the MFA clause of section is, thus, exempted preemption by from the Nursing Facility urges further us to discussed, FAA. the supra, As Texas it considered the reject Kepka because question courts that have considered this statement con- “findings purposes” Sthran, Kepka, in and Patterson have all 4590i, argu- in 1.02 of article tained section held that section 74.451 was enacted as of such statement from ing the omission part regulate of an effort to the business of statutory Chapter text of 74 must be the malpractice medical insurance Texas. However, though even given meaning. join Accordingly, We those courts. we preamble was not included within hold the trial court did not err in denying legislative history of Chapter the Nursing Facility’s the motion to compel legislative Bill 4 contains a state- House under the FAA. arbitration Chapter 74 which is purpose ment of the substantially the same as section 1.02.
Finally, Nursing Facility argues Supreme already
the Texas decided Court re Nexion Health
the instant issue In attorney-signature
when it held that an requirement in the Texas Arbitration Act SHUTTLE, WASHINGTON DC PARTY injury preempted was cases LLC, Party Tours, Shuttle LLC and Health, FAA. In Nexion re Systems, LLC, Internet Creativerse However, at 69. Court Appellants Nexion Health did not consider how preemption analysis. MFA affected the opinion curiam on mo supplemental per LLC, TOURS, Tyree Cook, IGUIDE rehearing, explicitly
tion for the Court de Eshetu, Appellees. and Abise newly clined to address raised issue No. 14-12-00303-CV. prevented whether the MFA the FAA the TAA’s preempting attorney-sig from Texas, of Appeals Court provision argument nature because the (14th Dist.). Houston presented was not to the trial court. Id. June (“we at 70 to reach the issue and decline opinion as to the merits of this express Sthran,
argument”); see
(rejecting nursing home’s assertion Supreme opinion
that the Texas Court’s
In re Nexion Health controlled the MFA
issue, noting expressly did MFA
not address whether reverse case). FAA in the
preempted the *3 Schmidt, Houston, Thomas Appel-
C. lants. Sutliff, Houston, Eugene
Graham Appellees.
EN BANC OPINION CHRISTOPHER, Justice. TRACY In this arising alleged suit from the confidentiality breach of agreements and secrets, theft of trade three related com- limited former em- Shuttle is District Columbia two nonresident sued panies place with a liability company principal foreign company ployees and the Columbia; in- in the District of Par- established. In this business employees former Tours, ty is a Delaware limit- plaintiffs challenge Shuttle LLC terlocutory appeal, liability company principal place ed with a form of the trial court’s the content and Houston, Texas; special of business Creativ- company’s the new granting order liability partially company erse is a Texas limited separate ruling and a appearance principal place in- with a of business Hous- temporary for a denying request their ton, by the Shuttle Texas. As described junction. *4 pleadings, Parties in their live these enti- motion, we have decided On our own operate through compa- ties a “network of in to answer an en banc order this case nies that do business as OnBoard Tours.” on which question error-preservation Party that Shuttle The record reflects DC conflicting results: to courts have reached Party primarily Tours are en- and Shuttle complaint appeal preserve a gaged providing sight- in the business of the basis of the affidavit fails to reveal tours, seeing and that owns Creativerse personal knowledge of the stated affiant’s all and markets the websites for of the facts, necessary a object it and obtain is companies. OnBoard Tours that it is. ruling? We conclude allege The Shuttle Parties Cook and that the trial court did not err We hold Virginia Eshetu are residents of and for- determining personal ju- that it lacked employees Party mer Shuttle and DC corporation, over the new and risdiction According to the Shuttle Creativerse. their plaintiffs preserve failed to Parties, signed and Eshetu each a Cook of the order complaint about form both Par- non-compete agreement with DC granting special appearance. We ty and Shuttle Creativerse. Under special- affirm the trial court’s therefore agreements, pro- terms of these each was appearance ruling. We further hold (a) primarily engaging hibited from a the trial court did not abuse its discretion competing tour business or internet mar- request partially denying plaintiffs’ years keting following business for three temporary injunction, for a and we affirm separation from the Shuttle Parties’ em- well. as (b) ployment, misusing confidential infor- (c) mation, Background soliciting hiring and other I. and Factual Procedural employees of the Shuttle Parties. The Party Shut- Appellants Washington DC allege Shuttle Parties that on December (“DC Shuttle”), tle, Party Party LLC IGuide, and Eshetu created a Cook Tours, Shuttle LLC and Creativerse Inter- while competing sightseeing company, tour (“Creativerse,” Systems, net LLC collec- employed by were still two of the Parties”) tively “the Shuttle filed suit Shuttle Parties. Tours, against appellees IGuide LLC Cook, (“IGuide”), respective left their Tyree and Abise Eshetu Cook and Eshetu Parties”), with the Shuttle Parties on (collectively employment “the IGuide assert- later, contract, February breach of breach of 2012. Two weeks ing claims for began operating sightseeing tours fiduciary duty, misappropriation IGuide employing employees The Shuttle Parties also other former trade secrets. Parties. The Shuttle Parties filed sought temporary restraining order and Shuttle day tempo- the next obtained a temporary permanent injunctions. suit rary restraining order. According pleadings, Party to the DC hearing At the time of the on the Shuttle Special Appearance A. request temporary injunc- Parties’ for a the Shuttle original petition, In their tion, only and Eshetu remained Cook against jurisdictional allegations Parties’ granted defendants. The trial court solely of the statements consist IGuide temporary injunction in what the Shuttle out of the proceeding arises that “this very Parties characterize as “a limited commit- in Texas and torts business done As in the trial court’s form.” reflected that the trial court “has ted in Texas” and order, granted injunctive the trial court IGuide because jurisdiction over alleged- regarding relief Creativerse mar- conducting it business Texas ly internet-marketing confidential informa- through in Texas a web- keting its services tion, request injunctive and denied the with De- conspiring and because it is site “regarding sightseeing, relief tour and/or torts fendants and Eshetu to commit Cook competition shuttle bus activities in with” challenged the trial in Texas.” IGuide Party Party Shuttle and Shuttle DC jurisdiction exercise of court’s Tours. by filing special appearance sup- it over *5 from Sewunet Hab-
ported by an affidavit te, and former employee a current IGuide II. Issues Peesented Shuttle of one or more of the employee issue, In their first the Shuttle Parties responded Parties Parties.1 The Shuttle grant- contend that the court erred in trial deny special that the trial court should In ing special appearance. IGuide’s their variety procedural a of appearance for issue, they argue second the alternative reasons. The trial court substantive special-appearance form of the special appearance. granted They order is erroneous. in their assert order, signed its the trial court stated third issue that court trial erred action that of Plaintiffs’ causes of “[a]ll rendering temporary injunction a that fails have been asserted have been or could quo. to maintain the status against are DISMISSED WITH [IGuide] jurisdiction for lack of PREJUDICE Appearance Special III. nothing from Plaintiffs shall recover alleged of action or for the causes Supreme [IGuide] The Texas Court has inter alleged.” could have been preted language the broad of Texas long-arm statute to extend Texas courts’ “ Injunctive B. Relief jurisdiction exercise of ‘as far as requirements the federal constitutional of tempo- The Shuttle Parties obtained ” rary restraining day they process permit.’ order on the due will BMC Software Marchand, Belgium, v. 83 sought filed suit and later and obtained N.V. S.W.3d (Tex.2002) 789, (quoting of that order. The Shuttle Par- 795 U-Anchor extension Burt, Adver., injunction Inc. v. 553 762 sought temporary ties also S.W.2d (Tex.1977)). requirements Those are ful primarily enjoin to the IGuide Parties if the defendant has “certain mini using allegedly confidential internet- filled from operating from mum contacts with forum such marketing [the state] information and the suit not marketing sightseeing tours in Wash- that the maintenance of does fair play locations. offend ‘traditional notions of ington, D.C. and certain other dispute the trial them. 1. Cook and Eshetu did jurisdiction of over court's exercise
728
with Texas and
justice.’”
purposeful
substantial
Int’l Shoe Co.
dant’s
contacts
310, 316,
operative
litigation,
facts of the
a trial
Washington, 326 U.S.
66 S.Ct.
(1945)
properly may
specific juris
court
exercise
154, 158,
(quoting
L.Ed. 95
Mil
90
Mac,
diction over the defendant. Moki
457, 463,
311
61
Meyer,
liken v.
U.S.
S.Ct.
have been continuous and
A.
Standard
Review
Mac,
575;
Moki
221 S.W.3d at
BMC Soft
ware, 83
at
S.W.3d
796. When there is a
personal juris-
Whether a trial court has
substantial connection between the defen
question
diction over a defendant is a
Realtors, Inc.,
Ryan
Kelly,
2. See Parker v. Robert
No.
3.
729 Mac, 221 site of the vital fact. Id. at 810. review de novo. Moki re law we 574; 83 Software, BMC S.W.3d viewing implied findings for factual S.W.3d here, Where, as the trial court at 794. sufficiency, we consider all of the evidence of fact or conclusions of findings issued no and will set aside a if finding it is so trial law, necessary all facts great weight against preponder and supported by the evi court’s clearly wrong ance of the evidence as to be of the trial implied are favor dence Wise, unjust. Meehl v. 285 S.W.3d Software, decision. BMC 83 court’s 561, (Tex.App.-Houston 565 [14th Dist.] appellate If the record S.W.3d at 795. 2009, Jones, pet.) (citing no Ortiz v. 917 records, and clerk’s reporter’s includes (Tex.1996) curiam)). 770, (per S.W.2d 772 implied findings these are not conclusive judge The factfinder is the sole of the legal and factu may challenged be credibility weight witnesses and the Id.; sufficiency al of the evidence. Horo testimony. of their See id. at 819. (Tex. 115, 122 Berger, witz v. 377 S.W.3d review the trial court’s We conclusions 2012, pet.). no App.-Houston [14th Dist.] of law de novo. Energy, Inc. v. Greenfield appeal, scope On of review includes all Duprey, (Tex.App. 252 S.W.3d Horowitz, evidence the record. -Houston If pet.). [14th Dist.] (citing at 122 Vosko v. Man S.W.3d Chase supports implied findings of N.A., (Tex. Bank, hattan fact, uphold we must the trial judg court’s 1995, writ de App.-Houston [14th Dist.] any legal theory supported by ment on nied)). findings. Stamper, v. Worford challenged review the factual find We (Tex.1990); Aduli, Aduli ings by applying the same standards used [14th reviewing jury findings. Wiese Pro pet.). Dist.] Servs., (Tex. Inc., Am App.-Houston pet.) Hearing B. Notice of the Points, (citing City Anderson v. Seven *7 The Shuttle Parties first assert (Tex.1991)). When granting that the trial court erred in reviewing legal sufficiency, we consider special appearance they because in light the evidence the most favorable to only days’ received five notice of spe the every finding indulge the and reasonable cial-appearance hearing instead of the six the supports challenged inference that days’ they required notice contend is Wilson, finding. City Keller v. of (Tex.2005). where, here, hearing notice of the was We credit served via fax. See Tex.R. P. Civ. favorable evidence if a reasonable factfin- (setting general forth the rule that a notice disregard contrary der could and evidence hearing “shall upon of be served all other unless a reasonable factfinder could not. parties days not less than three before the Id. will conclude that the evidence We is specified hearing time for the unless other legally implied insufficient to the (a) wise provided by these rules or shortened finding only complete if there is a (<rWhen court”); (b) by the fact, Civ. P. 21a absence of evidence of a vital we Tex.R. right ever a has the or is party required are barred rules law or evidence of prescribed do some act within a period giving weight only from to the (c) fact, paper after the service of a notice or other prove offered to a vital the evi him notice upon paper vital and the or is served prove dence offered to fact is no (d) scintilla, [fax], days ... upon by more than a mere the three shall be conclusively oppo prescribed period.”). evidence establishes added to the The however, to which it was fy special appearance that provide, specifically rules because Habte attested that the peri the notice attached may shorten trial court were within out in the affidavit P. 21. facts set Unless od. See Civ. Tex.R. true knowledge and were that the trial court her are such circumstances correct, verify the similarly but she did not going in forward its discretion would abuse notice, special appearance in facts set out days’ five hearing on with the to do so. itself. its decision will not disturb we K.A.R., 171 S.W.3d
See In re factually distinguishable case This 2005, no (Tex.App.-Houston [14th Dist.] reviewing Magic Corp. from Casino (no shortening in abuse of discretion pet.) Magic Corp. court in Casino noted to four hearing sanctions period for notice included a number special appearance “the days). which the jurisdictional ‘facts’ witness explained have not Parties The Shuttle to in the affidavit.”7 In failed to attest presented case, however, the circumstances why, under in its IGuide stated here, discretion trial court abused its special appearance hearing go forward. permitting (cid:127) it under the laws of the was formed not move to con- Parties did The Shuttle registered State of Delaware and is they contend hearing, and do not tinue the Columbia; in the District re- additional time to they needed (cid:127) are its members were and residents fact, the record shows spond. Maryland Virginia at all times (a) just two eleven-page response filed case; relevant to this special appear- filed its days after IGuide (cid:127) any re- it never has had contractual (b) ance, four-page bench an additional any lationship with of the Shuttle (c) a day hearing, of the brief on the Parties; post-hearing brief on the four-page further (cid:127) anyone in a it has never sued Texas the circum- day hearing. after the Under previously court and has not been stances, the trial court did not we hold that court; sued a Texas abuse its discretion.
(cid:127) Texas; it does not maintain offices Special Appear- C. Verification (cid:127) here; it does not conduct business ance (cid:127) corporate reg- it maintain a does not assert The Shuttle Parties next with the Texas istration Texas *8 sustaining the trial order court’s State; Secretary of re special appearance must be IGuide’s (cid:127) agent it does not have an service because, out in the they pointed versed as Texas; in process court, appearance trial was not special (cid:127) any employees have in it does not by made a sworn motion. See Tex.R. Civ. Texas; (“Such appearance shall be special P. 120a (cid:127) in it does not have bank accounts may by motion ... and be made sworn Texas; defects.”). Citing amended to cure Casino (cid:127) it not not own or maintain the Shuttle Parties does does Magic Corp. King,6 Texas; inventory in warehouses or argue that the affidavit in veri- special appearance properly does not (Tex.App.-Dallas
6. 43 7. Id. denied) (sub. pet. op.). (cid:127) Special-Appearance target Texas E. Content of specifically it not does Affidavit advertising.
with complaints addition to their about affidavit, Habte attested to the In her defects, alleged procedural the Shuttle appeal, facts. On each of these truth of the content of argue Parties Habte’s identify any do not the Shuttle Parties inadequate affidavit was meet IGuide’s fact that is stated jurisdictional proof. address each of burden We repeated is not special appearance arguments separately. these affidavit. by sworn to Habte her the affidavit therefore conclude that We Knowledge 1. Personal special appearance. sufficiently verified Inc., Int’l, Haddad v. ISI Automation The Shuttle Parties contend that
See
04-09-00562-CV,
1708275,at Habte’s affidavit does not show that she
No.
2010 WL
is
personally familiar with the facts to which
pet.)
*2
Antonio
(Tex.App.-San
motion,
she attested. On our own
we have
(mem. op.).
en
considered this case
banc to address
question
party
of whether a
must pre
Special-Appear-
D. Timeliness of the
complaint
serve such a
in the trial court by
Affidavit
ance
obtaining
a
a refusal to rule—
—or
timely
specific objection.
on a
also
that the
The Shuttle Parties
assert
Tex.R.App.
33.1(a).
P.
holding
hearing
on
trial court erred
special appearance
because IGuide’s
complaints
The cases which such
have
affidavit was not served seven
supporting
been
not
provide
addressed do
clear and
days
hearing
required
before the
to the error-preserva
consistent answer
120a(3).
court, however,
Rule
In the trial
question.
Supreme
tion
The Texas
argue
timing
that the
did
personal knowledge
has held that lack of
be
required
hearing
post
affidavit
legally
renders an affidavit
insufficient.
they argued that because IGuide
poned;
See, e.g.,
Episcopal
Marks v. St. Luke’s
days
than seven
served the affidavit less
(Tex.2010)
Hosp.,
(op.
319 S.W.3d
hearing,
special-appearance
before the
its
Arias,
reh’g);
on
Kerlin v.
274 S.W.3d
special appearance
gen
was converted to a
(Tex.2008)
curiam).
(per
These hold
complaint
appearance.
eral
Because
new,
ings are not
and do not answer this
presented
appeal
comport
on
does not
with error-preservation
question. The court
objection in the trial
the Shuttle Parties’
has stated on numerous occasions that an
court,
preserved for
it has not been
our
showing
affidavit
a lack of
knowl
Tex.R.App.
33.1(a); Cajun
review. See
P.
edge
incompetent
legally
insufficient.
Constructors,
See,
(Dall.),
Drainage
Inc. v. Velasco
Sys.,
Laidlaw
Inc.
e.g.,
Waste
Dist.,
Wilmer,
(Tex.App.-Hous
City
denied).
Caldwell,
(Tex.1995);8 Humphreys v.
*9
pet.
ton [14th Dist.]
proposed
does
8. There the court stated as follows:
fendant's
ordinance
not
conclusory
Larry
averments would
The sworn statement of one
Conwell
close.” These
personally
"that he is
familiar”
states
separate
be insufficient even if set out in a
following
pro-
with the
"facts”:
area
"[t]he
Larry
affidavit. There is no indication that
posed
by
annexation
defendant exceeds
competent
testify
to
as to either
Conwell is
statutory
the
tation,”
maximum one-half mile limi-
of these matters.
"boundary
and that the
described
Sys.,
at 661.
Laidlaw Waste
904 S.W.2d
by the metes and bounds contained in de-
curiam)
(Tex.1994)
object to
in
(per
to
these
S.W.2d
form
failure
defects
resulted in waiver.
Radio Station KSCS
(orig. proceeding);9
(Tex.
Jennings, 750
761-62
S.W.2d
added).
(emphasis
Id.
1988)
curiam);10 Brownlee v. Brown
(per
years
Vaughan
In the
since
was decid
(Tex.1984);11
lee,
665 S.W.2d
ed,
has neither
Supreme
the Texas
Satterfield,
954-
Burke v.
explicitly
cited that case nor
overruled it.
(Tex.1975).12 But
the court also has
Nevertheless,
years
Vaughan,
five
after
object to an
party
that a
must
concluded
Supreme
the Texas
Court —without dis
personal knowledge
lack of
and
affiant’s
cussing
preservation
agreed
error
with
—
objection
pre
the
to
obtain a
on
in
Appeals
holding
the Fifth Court of
Indep.
Prairie
serve error.
See Grand
summary-judgment
the
affidavits
chal
Vaughan,
Sch. Dist. v.
in
lenged
Systems
Laidlaw Waste
were
(Tex.1990).
defective
reasons
included the eon-
the court
Vaughan,
wrote
clusory nature
the
affiant’s statements
as follows:
any
and the absence of
indication that the
reading
It
clear from
the entire affida-
is
“competent
testify”
affiant was
to
on the
testifying
vit that
was
from
[the affiant]
matters described
the affidavit.13 See
competent
personal knowledge and was
at
Sys.,
Laidlaw Waste
904 S.W.2d
660-61.
testify regarding
to
the matters stated. Although not
discussed
the Texas Su
Even
these elements were not shown
Court,
preme
the
Appeals
Fifth Court of
if
Vaughan’s
affidavit,
competent
on the
held
that case that
be
“[t]o
face
stated,
There,
the court
"An affidavit which
112. The affidavit at issue in the case "[did]
positively
unqualifiedly repre-
does not
and
positively
unqualifiedly represent
and
in the affidavit
sent the facts as disclosed
to
'facts' as disclosed in the affidavit to be true
personal
true and within the affiant’s
be
personal
and within [the affiant's]
knowl-
legally
insufficient.” Hum-
edge. The statements made in the affidavit
phreys,
affidavit must be dicta, but court, ruling acterized this instead a defect to the in the trial but tion See, binding authority. have treated it as may raised for the substance be affidavit’s Co., 14- e.g., Chan v. Montebello Dev. No. See, v. appeal. e.g., Stone first on time 2986379, 06-00936-CV, 2008 at *11 n. WL REIT, 334 Multifamily Equity Midland 31, (Tex-App.-Houston July 12 [14th Dist.] 2011, 371, no (Tex.App.-Dallas S.W.3d 374 denied) (mem. 2008, pet. op.); N. Hous. Rests., Inc. v. Wa Landry’s pet.); Seafood Int'l, Invs., Inc., v. PW Real Estate L.L.C. 544, Inc., 551 Cafe, 49 S.W.3d terfront 14-02-00078-CV, 22453796, No. 2003 WL 2001, dism’d); Pro pet. (Tex.App.-Austin (Tex.App.-Houston at *3 n. 5 [14th Dist.] Carway, Ins. v. Cnty. Co. gressive Mut. denied) (mem. 2003, 30, pet. op.). Oct. 108, (Tex.App.-Houston 117 951 S.W.2d specifically Even when we have not cited denied). 1997,pet. [14th Dist.] Vaughan, we have continued to follow its appeals including The courts — an teaching, ap- and when we addressed times, many Vaughan one—have cited complaint that an affidavit pellate was not holding party that a must ob specifically personal knowledge, frequent based on we knowl ject to the affiant’s lack of ly complaint pre noted that this had been in the trial court edge and obtain a objection served in the trial court. See, e.g., error. Hill v. Toot preserve See, e.g., Cnty. Valenzuela v. State & Mut. sies, Inc., 14-11-00260-CV, 2012 No. WL Co., (Tex. 550, Fire Ins. 552 1694372, (Tex.App.-Houston at *2 [14th 2010, App.-Houston pet.) no [14th Dist.] (mem. 2012, 15, May pet.) op.); no Dist.] that the trial (noting court had overruled Servs., Quickel, Inc. v. 314 Commint Tech. appellant’s objection summary- that a 646, (Tex.App.-Houston [14th judgment per affidavit was not based on 2010, Mallory, v. pet.); Mallory no Dist.] Barker, knowledge); sonal Urban v. No. 14-06-01009-CV, 1886110, 2009 WL at No. 14-06-00387-CV, 665118, 2007 WL at *2 2, July (Tex.App.-Houston *1 [14th Dist.] 6, Mar. (Tex.App.-Houston [14th Dist.] (sub. 2009, mem. pet.) op.); no Butler v. (mem. (“Because 2007, pet.) op.) no [the L.L.C., Keyse, & No. 14-07- Hudson appellant] objected to the affidavit in the (Tex. 00534-CV, 402329, *2 at WL below, objection [regarding trial court 2009, 19, App.-Houston Feb. [14th Dist.] personal knowledge] lack of is pre (mem. pet.) op.); Peterson Homebuild appeal.”). served for ers, Timmons, Inc. v. No. 14-03-00400- court, Ap Our sister the First Court of (Tex. CV, at *4 n. WL times, Vaughan many has peals, also cited 27, 2004, App.-Houston July [14th Dist.] error, specifically holding preserve that to (mem. Wilson, pet.) op.); v. No. 14- Garza object one must to the affiant’s lack of 98-00928-CV, 64052, at 2000 WL *2-3 knowledge. See Rizkallah (Tex.App.-Houston Jan. [14th Dist.] Conner, (Tex.App. (not pet.) designated publica 2000 no writ). 1997, no Dist.] -Houston [1st ' tion); Jackson, Seitsinger City Lake specifically Rizkallah court discussed 14-95-01475-CV, No. WL Vaughan Systems and Laidlaw Waste *4 (Tex.App.-Houston July Vaughan concluded that was the better writ) (not designated publica Id. The First continues to rule. tion); at 117. Carway, 951 S.W.2d Vaughan. follow Rizkallah and See Un Hou-Tex, Servs., Vaughan Drilling We also followed Inc. v. derwater Offshore 01-11-00889-CV, 2013 Graphics, Inc. v. No. WL Landmark (Tex.App.-Houston at *5 n. 4 [1st & n. 9 [14th
735
writ.).15
(mem.
1997,
Second,16
2013,
no
14,
op.); Christi
May
pet.)
no
Dist.]
Fourth,17
Fifth,18 Sixth,19 Seventh,20
01-11-00946-CV, 2012
Higby, No.
In re
Tenth,21
6625028,
Appeals
and Eleventh22 Courts of
(Tex.App.-Houston [1st
at *3
WL
Vaughan
20, 2012,
progeny.
all have followed
or its
orig. proceeding);
Dec.
Dist.]
Union,
Ap
Emps.
v.
Dow
Credit
Eighth24
The Third23 and
Courts
Tex.
Colvin
5544950,
01-11-00342-CV,
split
have
of au
peals
at
also
discussed
2012 WL
No.
15,
thority,
have resolved the conflict in
Nov.
but
Dist.]
*4
[1st
(mem.
2012,
treating
objection
favor of
based on the
op.). The Thirteenth
pet.)
no
lack of
as a defect in
also has considered the
Appeals
Given the inconsistent
results
authority
and concluded that
substance.
split
and,
Bauer v.
Jas
reached
different
no
Vaughan
controlling.
courts —
doubt,
so,
552,
(Tex.App.-Corpus
even within our own court —we de
946
557
689,
2008,
Coop. Soc’y
(Tex.App.-Dallas
pet.);
no
Danevang Farmers
v.
697
15. See also
13-04-445-CV,
L.P.,
Prods., Inc.,
198,
2006
No.
v. Sanmina Tex.
156 S.W.3d
Indeco
Stewart
t
2885058,
2005,
(Tex.App.-Corpus
a *2-3
pet.); Thomp
WL
(Tex.App.-Dallas
207
no
12, 2006,
(mem. op.);
Curtis,
pet.)
446,
no
Oct.
(Tex.App.-
Christi
son v.
127 S.W.3d
450
703,
State,
4
114 S.W.3d
709 n.
2004,
Williams v.
pet.).
no
Dallas
2003,
pet.);
no
Flan
(Tex.App.-Corpus Christi
Gomez, No. 13-97-050-CV,
Bros.,
agan
Inc. v.
19; See,
Res.,
e.g.,
Dialog
Sundance
Inc. v.
35276220,
(Tex.App.-Corpus
WL
at *2
1998
Servs., L.L.C.,
06-08-00137-CV,
Wireline
No.
1998,
(not
25,
pet.)
designated
no
Christi June
928276,
(Tex.App.-Texarkana
2009 WL
at *5
publication).
8, 2009,
(mem.
Apr.
pet.)
op.); Youngblood
no
Co.,
461,
(Tex.
v. U.S. Silica
130 S.W.3d
468
II,
Williams,
E.
Law
David
16. See
Office of
2004,
denied);
App.-Texarkana
pet.
v.
Allen
Venture, LP,
Magazine
v. Fort Worth Tex.
P.C.
Co.,
St. Paul Fire & Marine Ins.
960 S.W.2d
2651865,
02-10-00373-CV, 2011 WL
at
No.
909,
1998,
(Tex.App.-Texarkana
913-14
no
7, 2011,
July
pet.)
no
(Tex.App.-Fort
*2
Worth
pet.).
Morris, M.D.,
(mem.
Lage
op.); A.J.
P.A. v. De
Servs., Inc.,
2-06-430-CV,
No.
Landen Fin.
Epsilon Fraternity,
Calp
Kappa
20. See
v. Tau
161065,
(Tex.App.-Fort
WL
at *4 & n. 12
2009
641,
2002,
(Tex.App.-Amarillo
75 S.W.3d
645
22, 2009,
(mem.
pet.)
op.).
Worth Jan.
no
denied).
pet.
Herron,
See, e.g., Marin v.
No. 04 — 11—
17.
00352-CV,
3205427,
(Tex.
WL
at *4
2012
Co.,
See,
Energy
e.g.,
21.
v. Devon
Prod.
Wolfe
8, 2012,
Aug.
pet.)
App.-San
no
Antonio
434,
2012,
(Tex.App.-Waco
382 S.W.3d
452
Co.,
(mem. op.);
In re Evolution Petroleum
N.A.,
(S.D.),
filed);
pet.
v. Citibank
McFarland
710,
(Tex.App.-San
713 n. 2
Anto
359 S.W.3d
2009,
759,
(Tex.App.-Waco
293 S.W.3d
762
2011,
Trucking
orig. proceeding);
nio
Celadon
Props.,
pet.); Choctaw
L.L.C. v. Aledo In
no
Servs.,
Agency,
Lugo's
Inc. v.
Sec.
No. 04-05-
235,
Dist.,
(Tex.
dep.
127 S.W.3d
241
Sch.
00018-CV,
2401886,
(Tex.
at
n.
2005 WL
*3
3
2003,
App.-Waco
pet.).
no
28, 2005,
Sept.
pet.)
App.-San Antonio
no
(mem. op.);
v. Bank One Nat’l As
Robinson
See, e.g., Athey
Registration
22.
v. Mort. Elec.
04-03-00343-CV,
28367,
soc., No.
2004 WL
Inc.,
161,
Sys.,
(Tex.App.-
314 S.W.3d
165-66
2004,
7,
(Tex.App.-San
pet.
*2
Jan.
Antonio
2010,
denied);
Puig,
pet.
v.
No.
Eastland
Goss
denied) (mem. op.); Garcia v. John Hancock
11-00-00095-CV,
34234424,
WL
at *2
427,
Variable
Ins.
Life
2, 2000,
(not
pet.)
(Tex.App.-Eastland Nov.
no
1993,
denied).
(Tex.App.-San
writ
Antonio
designated
publication).
See, e.g.,
v. Util.
18.
Four D. Constr. Inc.
&
Peters,
23. See
No. 03-09-00687-
05-12-00068-CV,
Fernandez
Servs., Inc.,
Envtl.
No.
CV,
(Tex.App.-Austin
WL
at *4
(Tex.App.-Dallas
WL
at *2
June
19, 2010,
(mem. op.).
pet.)
Oct.
no
h.) (mem. op.); Dulong
pet.
v. Citi
N.A.,
(Tex.
(S.D.),
bank
261 S.W.3d
Albertson's, Inc.,
Cooper
Dailey
App.-Dallas
pet.);
v. Circle
Am.,
pet.).
Boy
(Tex.App.-El
Paso
Ten Council
Scouts
(or
the case en
obtain the trial court’s
its refusal
to consider
banc
termined
*13
rule)
objection.
of the correct error-
to
on the
question
address
to follow.
rule
preservation
Second,
approach
this
is consistent with
is to
that the better course
We conclude
policy
error-preserva-
reasons behind
object
a
must
and obtain
litigant
hold that
requirement
parties
tion rules. The
that
preserve
trial court to
a
ruling
a
from the
complaints
their
in the trial
first raise
reveal
that an affidavit fails to
complaint
judicial
by pro-
court “conserves
resources
knowl-
personal
for the affiant’s
the basis
viding
opportunity
trial courts the
to cor-
stated therein.
In reach-
edge of the facts
appeal.”
(citing
rect
before
Id.
In
errors
conclusion,
guided
B.L.D.,
(Tex.2003)).
we have been
ing this
re
by two considerations.
chiefly
addition,
judicial decision-making
In
more accurate when trial courts have the
First,
Supreme
has
the Texas
Court
to
and rule on
opportunity
first
consider
a
of this Court
precedent
stated
“[i]f
that.
Moreover,
complaint.
party
Id.
a
case, yet ap
in a
application
has direct
“
permitted
‘surprise
should not be
to
his
rejected
rest on reasons
in some
pears to
by
on
opponent
appeal
stating his com-
decisions,
other line of
lower
[the
court]
”
plaint
(quoting
for the first time.’
Id.
In
directly
follow the case which
con
should
350).
B.L.D.,
re
All these
S.W.3d
trols,
leaving
prerogative
to this Court
policies
by requiring
litigant
are served
a
In
overruling
its own decisions.” Va.
object
to
in the trial court to an affidavit
Dist.,
Cnty. Appraisal
don.
v. Harris
Co.
that does not disclose the basis of the
(Tex.1995)
(quoting
911-12
personal knowledge,
affiant’s
and two of
Quijas
de
Ex
Rodriguez
Shearson/Am.
policies
by requiring
the three
are served
Inc.,
477, 484, 109
press,
490 U.S.
S.Ct.
that the trial court rule or refuse to rule
(1989)).
1917, 1921-22, 104L.Ed.2d 526
In
on the issue.
Vaughan,
Supreme
the Texas
Court stated
that
affidavit that fails to disclose the
Here,
special appearance
IGuide’s
was
for the
basis
affiant’s
supported
an affidavit that did not re-
form,
suffers from a defect of
and that the
veal
the basis of the affiant’s
object
failure to
to the defect results in
Although
knowledge.
the Shuttle Parties
Although
may
waiver.
other decisions
timely objected on
this basis
the trial
reasoning
have
on
court’s
cast doubt
court, they-
did not secure a
on their
Vaughan, the case has not been overruled.
objection.
accordingly
We
conclude that
Moreover,
Supreme
the Texas
has
complaint
is waived.
id.
pointed
raising
complaint
out that
a
in the
¡Guide
Deny
2. Failure to
that
Mar-
steps general
trial court is
one of two
Through
Tours in Texas
its
kets
Website
ly
to preserve
complaint
ap
needed
a
pellate
argue
review. See Mansions in the For
The Shuttle Parties further
est,
on
affidavit is
Montgomery County,
appeal
L.P. v.
Habte’s
inade
(Tex.2012)
curiam).
(per
quate
proof
to
IGuide’s burden of
meet
deny
The trial court
rule or
to because she did
also must
refuse
not
IGuide
request, objection,
through
rule on the
or motion.
“markets tours
Texas
its web
Tex.R.App.
33.1(a)). It
affi
(citing
produced
Id.
P.
there
site.” The Shuttle Parties
complaint
testimony
fore
that to
davit
in the trial court
appears
preserve
“provides potential
that an affidavit
not show the basis of
IGuide’s website
cus
does
purchase
personal knowledge,
litigant
opportunity
affiant’s
tomers the
tours
(1)
(2)
court,
object in
the website.” In her affidavit in
through
must
the trial
(6th Cir.1996)). In
special appearance,
the middle are
support of
however, Habte
“does
involving
attested
IGuide
cases
interactive websites in
with advertis-
specifically target
Texas
exchange
which “the user can
information
any allegation
the absence of
ing.” Given
computer.”
with the host
Id.
those
single
made a
internet sale
that IGuide has
cases, we examine “the level of interactivi
targets
in Texas or that it
person
to a
ty and commercial nature of the exchange
market,
be the Shuttle
appears
Texas
it
of information that occurs” on the website.
*14
that
position
potential
Parties’
because
Id.
purchase a tour
anywhere
customers
could
Here,
there is evidence
that IGuide
website,
through
jurisdic-
ticket
specifically target
“does not
Texas with
Tex-
proper everywhere including
tion is
—
advertising” “potential
customers
no.authority
as. The Shuttle Parties cite
the opportunity
purchase
tours
[have]
view,
which does not
supports
such
through the website.” Unlike the cases on
applied by
this
accurately reflect
law
rely,
which the Shuttle Parties
there are
court.
allegations
in
evidence
this case that
relies on a nonresident
plaintiff
When
the nonresident defendant established con
defendant’s website as a basis for
tinuing internet relationships with Texas
jurisdiction, we have evaluated the defen
through
residents
its website.
Patter
Cf.
according
dant’s Texas contacts
to a slid
son,
facturing Zippo Dot 952 Co. service in the forum state to make his (W.D.Pa.1997). 1119 F.Supp. Riverside subscribers, product available to where Exports, Equip., Inc. v. B.R. & Crane agreement provided that it was entered LLC, (Tex.App.-Hous 655 into in Ohio and developer repeatedly denied). 2011, pet. ton [14th Dist.] transmitted software pursuant to the sliding appropriate use of a scale is be agreement three-year over a period); Zip personal juris cause “the likelihood that (hold Co., po Mfg. 952 F.Supp. 1125-26 constitutionally diction can be exercised is ing specific jurisdiction was supported directly proportionate to the nature and by defendant’s internet sales of member quality activity of commercial that an enti 3,000 in ships its online news service to ty Zippo conducts over the Internet.” forum residents and its contracts with sev Mfg. F.Supp. at 1124. At one end providers en internet-access in forum “passive” the scale are websites in involving downloading state “the of the foreign simply which the defendant has messages electronic that form the basis of posted information on a website that can suit”); Ass’n, Experimental jurisdictions. be viewed in other Id. Such Aircraft (Tex. Doctor, Inc. v. websites do exercise of App.-Houston pet.) personal jurisdiction. (citing Id. Bensusan (holding that the existence of a website Corp. King, F.Supp. Rest. (S.D.N.Y.1996)). through which nonresident defendant sold On the other end of memberships provided to Texans and ac scale are cases in which the nonresident “members-only” cess to a defendant has entered into section was one contracts with together of several factors that supported residents of the forum state “that involve general jurisdiction). the existence of knowing repeated transmission of (cit computer There also is no files” over the internet. Id. defen Patterson, ing CompuServe, product Inc. v. 89 F.3d dant in this case sold a that was D.C., Washington, IGuide markets its ser- a service that was to Texas or delivered visiting v. Handa- who are from Tex- Thompson vices to tourists here. performed Cf. Inc., F.Supp. authority The Shuttle Parties cite as. Lopez, (W.D.Tex.1998) juris (exercising specific jurisdiction can be based on casino in a nonresident with a diction over a contact another state such and fraud case where happens who to reside the forum person breach-of-contract through into the contract entered therefore waived. plaintiff argument state. This website, Tex.R.App. 38.1(i). the casino “played the casino’s P. Texas, if were games while 4.Reverse-Piercing Corporate Texas, if located
physically Veil the Defendant prizes, cash or Plaintiff won additionally The Shuttle Parties assert Plaintiff in winnings to the would send the the trial subject that IGuide is court’s Texas”). *15 specific jurisdiction through the doctrine of record, we conclude that “the On this corporate the veil. reverse-piercing of interactivity commercial na level of and allege did not in their Shuttle Parties information that exchange ture of petition jurisdic that this was a basis for not show does occurs” on website 301 at Kelly, tion over IGuide. S.W.3d Cf. invoked the benefits and that IGuide has (“Once plaintiff pleaded has suffi 658 by purposefully laws protections of Texas jurisdictional allegations, cient the defen privilege conducting availing itself of filing special dant a bears appearance contrary, IGuide’s here. To the activities negate burden to all bases of a service that can be only “product” is (em jurisdiction alleged by plaintiff.") Washington, in the D.C. performed added). held, however, phasis We have area, pay IGuide could not receive may the plain that the trial court consider Texas, according to the ment in because appearance as response special tiffs’ to evidence, it has no offices uncontroverted Protetch, pleadings. well as its Max Inc. Finally, previ as or bank accounts here. Herrin, 878, (Tex.App.- v. mentioned, allegation there no or ously is 2011, pet.). Houston a actually that IGuide has made response special appear their to IGuide’s a single person sale over the internet to ance, the Shuttle Parties asserted Troy v. Corp. Texas. I & JC Helen of Cf. jurisdiction court specific personal trial has L.P., (Tex.App.-El ego of its mem over IGuide as alter denied) (nonresident defen pet. Paso bers. We construe the Shuttle Parties’ products that sold to dants “admitted argument an assertion that appellate stores”). that a possibility Texas The bare failing the trial court erred in to find that use the website to Texas resident could Eshetu, the alter ego IGuide is Cook for and paid contract for services to be personal juris of whom neither contested in another is insufficient performed state diction. juris to the exercise of diction. law, corporation a Under Texas Deny Mar- 3.Failure that IGuide separate entity to be a from presumed kets Tours to Texas Residents When officers and shareholders. See Grain its They Visiting Washington, Are D.C. McKee, Dealers Mut. Ins. Co. (Tex.1997) brief, (refusing to in their the S.W.2d single
In a
sentence
corpo-
a
disregard
in her
the distinction between
complain
Shuttle Parties also
affidavit,
presi-
and the individual who was its
deny
in ration
Habte does
Appellants’
shareholder);
Capital Fin.
Contention
and sole
dent
Sinopec
Specific
Overseas Oil
&
AG
IGuide has
Jurisdiction as an
Commerce
Gas, Ltd.,
(TexApp.-
&
Actor in
with
Concert
Cook
Eshetu
(“Set
pet.)
Usurping
Corporate Opportunity
Dist.]
Houston [1st
a
corpora
always presumes
tled law
the Shuttle Parties
entities, and that
separate
exist as
tions
''
The Shuttle Parties also contend that
separate
are
from their
corporate officers
specific jurisdiction
the trial court has
over
Steele,
also Amaral v.
corporation.”). See
acting
IGuide because it is
in concert with
14-02-00368-CV,
No.
2002 WL
and Eshetu “to further the scheme
Cook
*2
Oct.
(Tex.App.-Houston [14th Dist.]
away” the
to steal
Shuttle Parties’ busi-
(not
designated
publi
pet.)
opportunity. According to the Shut-
ness
cation)
parent
that because
(explaining
Parties,
of action against
tle
their causes
presumed
are
subsidiary corporations
from its
with
conspiracy
IGuide arise
Cook
entities,
follows
separate
logically
it
be
and Eshetu to further those defendants’
apply
rule would
to an as
that the same
fiduciary duty.
breaches of contract and
corpora
based on a
jurisdiction
sertion of
ego
as the alter
of a natural
tion’s status
The Shuttle Parties
not identified
have
result,
who relies
person).
plaintiff
As
any
alleged
act
furtherance of an
con
alter-ego
on the existence of an
relation
spiracy
that was committed
IGuide in
*16
ship to ascribe one defendant’s contacts Texas or through
purposefully
which it
foreign corporation
to a distinct
with Texas
availed itself of the privilege
conducting
relationship
that such a
exists.
prove
must
Thus,
activities in the forum state.
the
Prods.,
Cappuccitti
See
Indus.
rejecting
trial court did not err in
this as a
Gulf
Inc.,
(Tex.App.-Hous
482
See,
jurisdiction.
basis for
e.g., Nat’l In
pet.).
no
[1st Dist.]
ton
(re
Ass’n,
dus. Sand
L.L.C. v.
net worth and about whether he had a
(Tex.App.-Houston [14th Dist.]
name when he
checking account
his
was
testimony
pet.) (explaining
employed by the Shuttle Parties. Accord-
risk”
company
put
“great
could be
Parties,
ing
they
to the Shuttle
were not
competition did not
employee’s
former
put
support
allowed to
on this evidence to
it
injunctive relief because
“‘es
support
”
an adequate
their claim that
lacked
injury’
possible
a fear of
tablished
remedy
preserve
appellate
at law. To
Analytical, Inc. v. Younk
(quoting EMSL
any
concerning
review
error
the admissi-
er,
154 S.W.3d
evidence,
bility
appellant
must dem-
pet.))).
injunction
An
onstrate that
it either tendered the evi-
proper
injury
is not
when the claimed
exceptions.
dence or made a bill of
injury
fear of
is not
merely speculative;
& Storage
Brown Am.
injunc
temporary
sufficient to
Transfer
(Tex.1980).
The Shuttle
Frey
tion.
v. DeCordova Bend Estates
proof
Parties did not make an offer of
or a
(Tex.
Ass’n,
Owners
bill of
to demonstrate what the
exceptions
Rest,
1983);
v. Landry’s
Jordan
Seafood
evidence would have shown and how it
Inc.,
737, 742 (Tex.App.-Hous
supported
application
would have
their
denied) (sub.
2002, pet.
op.).
ton [1st Dist.]
injunctive relief. We conclude the Shuttle
temporary-injunction
In a
hear
*19
preserve
argu-
Parties have failed to
this
applicant
prove
is on the
to
ing, the burden
for
review.
appellate
ment
calculated,
damages
that the
cannot be
not
review,
applicable
the
standard of
Under
party
disprove
to
opposing
for the
we conclude that
the trial court did not
Cypress
Operat
notion. See N.
Med. Ctr.
Co.,
by impliedly finding
abuse its discretion
ing
are affirmatively per- show how the affiant has Operating Med. press Ctr. harm, irreparable knowledge of the con- proof 178. Absent sonal statements Parties were not entitled to a the Shuttle tained therein is defect substance and relief. See id. The trial court injunctive appellants’ failure to obtain a rul- denying abuse its discretion trial court ing regarding did not from the injunc temporary for part application preclude raising them from defect does Party Party Shuttle and Shut by tion DC appeal. this issue on The evidence in the Butnaru, 84 S.W.3d at review, affidavit, tle Tours. See single a case under that a trial court does not abuse (providing legally support insufficient the trial granting denying its discretion special appearance, on the court’s if evidence rea temporary injunction some Supreme and the Court of Texas has held decision). the trial court’s sonably supports legal insufficiency that this can be raised we overrule the Shuttle Par Accordingly, Therefore, time appeal.1 first on ties’ third issue. this court should reverse the trial court’s special-appearance order and remand to
V. Conclusion
the trial court for rendition of an order
concluding
Tours,
trial
did not err in
court
special appear-
that IGuide
LLC’s
personal jurisdiction
it
over
lacked
ance be denied.
IGuide,
the Shuttle Parties failed to
Supreme
Under recent
Court of Texas
the form of
complaint
their
about
preserve
precedent,
the failure of an affidavit
granting
special ap-
the order
affirmatively
per-
show the affiant has
The trial court also did not
pearance.
sonal
is a defect of sub-
by denying
part
its discretion
abuse
stance.
injunctive re-
request
Shuttle Parties’
Appellants/plaintiffs Washington DC
accordingly affirm both of the
lief. We
Shuttle, LLC,
Tours,
Party
Party Shuttle
challenged rulings.
trial court’s
LLC,
Systems,
and Creativerse Internet
The En Banc
consists of Chief
Parties”)
(collectively “the Shuttle
LLC
FROST,
HEDGES and Justices
Justice
against appellees/defendants
filed suit
BOYCE, CHRISTOPHER,
BROWN,
Tours, LLC,
Cook,
Tyree
IGuide
MeCALLY,
JAMISON,
and BUSBY.
Par-
(collectively
Abise Eshetu
“the IGuide
participating.
Justice DONOVAN is not
ties”).
special appearance
IGuide filed a
challenging
personal juris-
the trial court’s
MeCALLY,
BROWN, BOYCE,
Justices
special appear-
diction.
In
join
Opinion
the En Banc
BUSBY
ance,
proffered
only
as its
IGuide
authored
Justice CHRISTOPHER.
Habte,
very
brief affidavit from Sewunet
FROST issues an En Banc
Justice
employee.
response,
an IGuide
Dissenting Opinion in which
Justice
Chief
argued,
among
Shuttle Parties
other
join.
HEDGES and Justice JAMISON
things,
deny
that the trial court should
FROST, Justice,
KEM THOMPSON
special appearance
because the
evi-
dissenting.
submitted,
affida-
dence IGuide
the Habte
vit,
competent
recent
is insufficient and not
be-
prece-
This court should follow
*20
how
cause the affidavit does not show
Supreme
dent from the
Texas
Marchand,
Burton,
Atty.
Belgium, N.V. v.
83 S.W.3d
Gen.
Texas v.
ware
Office of
789,
(Tex.2002).
(Tex.2012);
369 S.W.3d
BMC Soft
For
knowledge
purposes
pres-
court on this issue.
personal
has
Habte
error,
appellate
in it. The trial court
ervation of
court treats
statements contained
special appearance.
party’s objections
a
to defects
the form
granted IGuide’s
in the substance of an affidavit
defects
Procedure
Texas Rule of Civil
Under
form,
differently.5
a defect in
a
Unlike
120a,
affidavits “shall
special-appearance
is
defect
the substance of an affidavit
knowledge, shall set
be made on
ruling
not waived
failure to obtain
on
facts as would be admissible
specific
forth
may
the defect from the trial court and
be
evidence,
affirmatively
and shall show
appeal.6
raised for the first time on
Sub-
testify.”2
to
competent
that the affiant is
make
stantive defects are those that
substantially
similar to
language
This
legally
insufficient.7 If the al-
regarding
in the rule
sum-
language
leged
in the Habte affidavit is a
defect
affidavits, and this court
mary-judgment
substance,
defect in
then the Shuttle Par-
analysis
same
in both con-
applied
has
ties’ failure to obtain a
from the
ruling
Thus,
special-appearance
texts.3
affida-
trial
not bar
from raising
court does
them
affirmatively
how
vit must
show
the affiant
on appeal.8
this issue
knowledge
the statements
has
in the
contained
affidavit.4
IGuide asserts that the Shuttle Parties
to
response
special appear-
waived the issue of whether the affidavit
ance,
argued
affirmatively
person-
the Shuttle Parties
shows how Habte has
deny
trial
should
special appear-
court
al
because this is a defect of
ance
affidavit
form
because
Habte
does not
and the Shuttle Parties did not obtain
personal knowledge
show how Habte has
an adverse
in the trial court. Nota-
bly,
pronouncements
of the factual matters set forth in the
in its most recent
If this alleged
regard,
Supreme
affidavit.
defect is a defect
Court of Texas
affidavit,
in the form of the
then the Shut-
has treated this defect
aas
substantive one
tle
failed to preserve
legally
Parties
error because
that renders the affidavit
insuffi-
not obtain a ruling
did
from the trial
cient.9
120a(3).
Harley-Davidson
2. Tex.R. Civ. P.
5. See
Motor
Inc.
Young,
(Tex.App.-Hous
720 S.W.2d
1986, writ).
ton
166a(f)
[14th Dist.]
(stating
3. See Tex.R. Civ. P.
"[supporting
opposing
affidavits shall be
personal knowledge,
6. See id.
made on
shall set forth
evidence,
such facts as would be admissible in
Snider,
affirmatively
and shall show
that the affiant is
7. See Anderson v.
Co., Inc.,
competent
testify
(Tex.1991);
Harley-Davidson
matters stated
Motor
therein");
Barker,
Urban v.
No. 14-06-00387-
corporation’s
dence.26
personal
be within
ordinarily would
case,
In another
this court held that the
vice-president
the senior
knowledge of
manager
of a claims
of an insur-
affidavit
secretary of
corporation.22
company
affirmatively
ance
did not
show
contrast,
personal knowledge
the affiant had
not state that
how
Habte does
By
director,
officer,
Though
the statements in the affidavit.27
manager
or
she is an
currently
that she was
states she is an the affiant stated
simply
IGuide. Habte
com-
identifying
manager
her
the claims
for the insurance
employee, without
IGuide
duties,
pany
personal knowledge
and that she had
describing
job
pro-
her
position,
affidavit,
in
of her
of the facts stated
any indication of the nature
viding
Habte
court noted that the affidavit did not ad-
responsibilities at IGuide.
work or
whether the affiant was the claims
personal
how she has
dress
explain
does not
formation,
when the events discussed in the
knowledge regarding
manager
members,
relationships,
affidavit occurred and that the affidavit did
contractual
bank
accounts,
any
job
contacts not address how the affiant’s
duties as
advertising, or
manager gave
Affidavits
claims
her
about
might have with Texas.
IGuide
rejected
have
the claim at issue.28 This court held that
with more information
been
incompetent
legally
the affidavit was
incompetent.
affirmatively
insufficient because it did not
in
Marshall
example,
For
Lawrence
personal
show how the affiant had
knowl-
Meltzer,
dealership
a car
Dealerships v.
statements in the affidavit.29
edge of the
breach of
one of its customers for
sued
case,
contract,
affidavit
today’s
in the case was the
Habte
does
and an issue
general
not even rise to the level of the
“payoff’
on a vehicle
amount
incompetent
affidavit found
in
manager’s
had “traded in” to the deal-
the customer
manager’s
or the claims
affidavit
summary-judgment
In a
affidavit Meltzer
ership.23
Habte
“payoff,”
incompetent
the amount of the
found
Valenzuela.
regarding
only
employee
man-
states
that she is an
general
affiant stated that he was the
personal
and that she has
knowl-
dealership
the car
and that he had
IGuide
ager of
edge
of the facts stated in her affidavit.
personal knowledge of the statements
But,
specify
much as
Though the affiant stated
Habte does not so
the affidavit.24
title,
Though employ-
her
at IGuide.
job
identify
respon-
position
he did not
his
his
personal
corporation might
ment as an officer of a
any
sibilities or
other basis for
inherently provide
in the
the basis
knowledge of the statements
affida-
knowledge regarding
corporation’s
gener-
vit.25 This court concluded that the
state, employment
another
affirmatively
affidavit did not
contacts with
manager’s
al
enough
is not
personal knowledge
unspecified position
he
show how
had
affirmatively
per-
and that the
show how the affiant has
the statements in the affidavit
26. See id.
22. See id.
14-07-00920-CV,
2009 WL
23. See No.
Valenzuela,
24. See id. at 554-55. 29. See 25. See id. at *4. valid, company’s appeal and on is the Habte affida- knowledge regarding the sonal Nothing state. proffered contacts with another vit—the evidence any upon Thus, basis legally affidavit discloses insufficient. IGuide—is have knowl- which Habte could legally insufficient to in the affidavit. the statements edge of special ap- the trial court’s on the *24 affirma- affidavit does not Because Habte’s pearance, and this court should reverse personal knowl- tively show how she has trial order and to the trial court’s remand statements, the affida- edge of the affidavit rendition of an order court legally insufficient incompetent vit is special appearance IGuide’s be denied. jurisdic- negate any basis for majority en Because the banc does not do And, the Habte affidavit is so, tion.30 because respectfully I dissent. submitted, IGuide evidence legally insufficient to implied finding court’s
the trial negate per- satisfied its burden to
IGuide jurisdiction.
sonal The trial court erred
sustaining special appearance.31 IGuide’s court
Accordingly, this should sustain issue, special- reverse the trial court’s first WEST, Appellant David Shane order, and remand to the trial appearance court rendition of an order appearance be denied. special Texas, Appellee. of STATE Conclusion No. 14-12-00441-CR. follow recent prece-
This court should Texas, Appeals Court Supreme dent from the Texas (14th Dist.). Houston that an failure and conclude affidavit’s affirmatively per- show how the affiant has July knowledge sonal of the statements con- tained therein is a defect of substance and
that the Shuttle Parties’ failure to obtain a regarding from the trial court this preclude
defect not them from raising does appeal. complaint
this issue on Because the
regarding personal knowledge that
Shuttle Parties asserted in the trial court
Marks,
(holding,
tively
30. See