American Express Centurion Bank v. Pitono Haryanto , 2016 Tex. App. LEXIS 4169 ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-14-00495-CV
___________________
AMERICAN EXPRESS CENTURION BANK, Appellant
V.
PITONO HARYANTO, Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 14-03-03109 CV
__________________________________________________________________
OPINION
This is an appeal by a creditor from the trial court’s ruling granting a
debtor’s special appearance. The creditor appealed, and in the appeal, we address
whether a debtor who created a credit-card relationship with the creditor who
directed the creditor to send his monthly statements to him at a Texas address is
subject to the jurisdiction of a Texas court in a debt collection suit to collect the
debt due on the credit-card account. Because the debtor established his initial
relationship with the creditor in Texas, used the card on a regular basis to charge
1
goods and services sold by merchants located in Texas, and used a billing address
in Texas while authorized to use the card, we conclude the debtor purposefully
availed himself of the benefits of Texas law regarding the use of the credit card.
We conclude that the trial court had specific jurisdiction over the creditor’s claims
to recover the credit-card debt at issue, and that the trial court erred in granting the
debtor’s special appearance for lack of jurisdiction.
Standard of Review
Pitono Haryanto, the debtor who prevailed on his special appearance,
contends that he cannot be sued for the credit-card debt at issue in Texas because
he resides in the Republic of Singapore. American Express Centurion Bank, a Utah
corporation, contends that Haryanto can be sued in Texas for the debt associated
with the account because he resided in Texas when he applied for the card, he
maintained an address in Texas where he received his monthly statements on the
account, and he regularly used the account to charge goods and services sold by
merchants located within Texas.
In resolving a defendant’s special appearance, “the plaintiff and the
defendant bear shifting burdens of proof in a challenge to personal jurisdiction.”
Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). In this case,
American Express bore the initial burden of pleading sufficient allegations to bring
Haryanto, a nonresident defendant when American Express filed suit, within the
2
provisions of the Texas long-arm statute. See BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 793 (Tex. 2002); see also Tex. Civ. Prac. & Rem. Code
Ann. §§ 17.001-.093 (West 2015). Once a plaintiff alleges sufficient facts to bring
the defendant within the provisions of the State’s long-arm statute, the defendant
must negate all of the factual allegations in the plaintiff’s pleadings that establish
that the court possesses the power to exercise jurisdiction over the defendant in the
case. BMC Software, 83 S.W.3d at 793; Tex. Civ. Prac. & Rem. Code Ann. §
17.001-.093.
Under the Texas long-arm statute, a court has the power to adjudicate a
claim against a nonresident when the State’s long-arm statute permits it to exercise
jurisdiction over the dispute, and when the court’s exercise of jurisdiction over the
defendant is consistent with federal and state due-process guarantees. Moncrief Oil
Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013). If a nonresident
“engages in business” in this state, and the suit arises from that business, the court
has the power to exercise jurisdiction over the nonresident. See Tex. Civ. Prac. &
Rem. Code Ann. § 17.044(b) (West 2015). Jurisdiction is categorized as either
general or specific, depending on the nature of the plaintiff’s claims.
On appeal, the question of whether the trial court possessed personal
jurisdiction over the defendant is reviewed as a question of law. See Am. Type
Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex. 2002). If, in
3
ruling on the special appearance, the trial court is required to resolve disputed
questions of fact, the trial court’s factual findings are reviewed for legal and factual
sufficiency, and its legal conclusions are reviewed using a de novo standard. BMC
Software, 83 S.W.3d at 794. If the trial court does not issue findings of fact in
ruling on the defendant’s special appearance, as here, the appeals court is required
to assume the trial court resolved any disputed facts in a manner that is consistent
with the trial court’s ruling if the record contains evidence that supports the trial
court’s resolution of the disputed fact. See Spir Star AG v. Kimich, 310 S.W.3d
868, 872 (Tex. 2010). However, a trial court’s implied findings are not conclusive,
and if the record on appeal contains a reporter’s record and clerk’s record, the
appellant may use the record to argue that the evidence is insufficient to support
implied findings that are relevant to the appeal. BMC Software, 83 S.W.3d at 795.
In this case, we have the benefit of both a reporter’s record and a clerk’s record,
which contain the information relevant to our resolution of American Express’s
appeal.
With respect to nonresident defendants, if a court has the power to exercise
jurisdiction in the case, it will be either specific jurisdiction, which concerns the
specific case and the defendant’s contacts with Texas as they relate to the facts of
that case, or general jurisdiction, which concerns the defendant’s contacts with
Texas generally. Id. at 796; see also Helicopteros Nacionales de Colombia, S.A. v.
4
Hall, 466 U.S. 408, 413-14 (1984). In either case, a court’s exercise of personal
jurisdiction over nonresident defendants is constitutionally permissible when the
record demonstrates that (1) the defendant has established minimum contacts with
the forum state, and (2) the exercise of jurisdiction comports with traditional
notions of fair play and substantial justice. Int’l Shoe Co. v. State of Washington,
326 U.S. 310, 316 (1945); BMC Software, 83 S.W.3d at 795. In a case premised on
a claim that specific jurisdiction exists, courts examine whether the defendant’s
alleged liability arises from or is related to an activity that the defendant conducted
in the forum where the suit has been filed. BMC Software, 83 S.W.3d at 796. In a
case based on a claim of general jurisdiction, courts examine and evaluate whether
the defendant’s contacts with the forum are continuous and systematic, even if the
cause of action filed against the defendant in the forum is unrelated to the
defendant’s activities in the forum. Id. at 796.
Because the Texas long-arm statute extends as far as federal due process
permits, the requirements of the Texas long-arm statute are satisfied if the exercise
of personal jurisdiction comports with federal due process limitations. Guardian
Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226
(Tex. 1991). A trial court’s conclusion that it does not have personal jurisdiction
over a defendant is reviewed using a de novo standard. BMC Software, 83 S.W.3d
at 794.
5
Analysis
In 2014, American Express sued Haryanto seeking to collect a debt based on
his use of a credit card issued by American Express. In its original petition,
American Express alleged that Haryanto resided in Montgomery County, Texas. In
response to the suit, Haryanto filed a verified special appearance, 1 alleging that he
resides in the Republic of Singapore and that he did not reside in Montgomery
County or the State of Texas. In his special appearance, Haryanto also alleged that
he had no purposeful contacts with Texas that could be used to assume personal
jurisdiction over him on suit filed by American Express to collect the balance that
it claimed he owed on the credit-card account.
In support of his special appearance, Haryanto filed an affidavit signed by
his mother, Siri Beach, which supports the claim that he made in his special
appearance asserting that when the suit was filed, he did not reside in Texas.2
Beach’s affidavit states that Haryanto resides in the Republic of Singapore, that she
1
Haryanto did not file an affidavit supporting his special appearance, and he
did not sign the verification that accompanied his special appearance; instead,
Haryanto’s attorney signed the verification on his behalf. The verification signed
by Haryanto’s attorney indicates that he had acquired knowledge of the
information found in the special appearance because he has “known and been in
contact” with Haryanto for more than twenty years, and had acted as legal counsel
on Haryanto’s behalf for more than five years.
2
Haryanto never filed an affidavit in support of his special appearance, and
he also did not appear at the hearing the trial court conducted on his special
appearance.
6
is the owner of a dwelling located in Spring, 3 that during the last five years she has
owned and resided at the address in Spring, and that during the last five years,
Haryanto “has not resided at my dwelling as his usual place of abode.” Beach’s
affidavit goes on to state that Haryanto occasionally visits her in Spring, and that
from time to time, she receives mail addressed to him that could not otherwise be
forwarded by the post office to him in Singapore.
In response to Haryanto’s special appearance, American Express filed an
amended petition and a response. 4 In its amended petition, American Express
3
Beach’s affidavit identifies her address in Spring, Texas, which is the same
address that American Express used to send Haryanto the monthly statements on
the credit-card account that is the subject of the suit.
4
Although Haryanto objected to the timeliness of the business records
affidavit attached to the response to Haryanto’s special appearance that American
Express filed, the reporter’s record of the hearing shows that the trial court
overruled the objection that Haryanto lodged during the hearing to the timeliness
of these pleadings. Additionally, during the hearing, Haryanto did not assert or
claim that he was surprised or claim that he needed a continuance to address the
allegations and evidence American Express presented in its amended answer and
response. See Goswami v. Metro. Sav. & Loan Assoc., 751 S.W.2d 487, 490 (Tex.
1988) (holding that a failure to obtain leave of court when required by Rule 63 of
the Texas Rules of Civil Procedure may be cured by the trial court’s action in
considering the amended pleading). We further note that the trial court’s order on
Haryanto’s special appearance indicates the court considered the responses that
were filed. See Tex. R. Civ. P. 63 (allowing pleadings or responses to be filed
within seven days of the date of trial on leave of court, and requiring the court to
grant leave for late filling unless there is a showing of surprise). Accordingly, for
purposes of appellate review, we have determined that the pleadings and evidence
filed by American Express that the trial court considered in ruling on Haryanto’s
special appearance consisted of the following: American Express’s First Amended
Petition, its response to Haryanto’s special appearance, the evidence that was
7
alleged that Haryanto, a nonresident, had purposefully availed himself of the
privilege of conducting activities in Texas, that he had engaged in business in
Texas, and that this suit arose from the business Haryanto conducted in Texas. In
its response to Haryanto’s special appearance, American Express alleged that
Haryanto “purposefully availed himself of the privilege of conducting activities
within Texas because [Haryanto] applied for the credit account” from American
Express “while residing at [address], Spring, Texas[.]” The pleadings filed by
Haryanto considered by the trial court do not contradict American Express’s
allegation that Haryanto resided in Spring when he applied for the card at issue in
the suit. 5
attached to its response, and its supplemental response. With respect to the
pleadings and evidence filed by Haryanto, we have determined that the trial court
considered the following: Haryanto’s verified special appearance, his original
answer, his first supplement to his special appearance, which contains Beach’s
affidavit, his reply to American Express’s response to his special appearance, his
amended reply to that response, and a letter sent to the trial court that contained
copies of various cases that Haryanto wanted the trial court to consider in ruling on
his special appearance. See Pink v. Goodyear Tire & Rubber Co., 324 S.W.3d 290,
294 (Tex. App—Beaumont 2010, pet. dism’d) (noting that a judgment which
stated the court had considered “all of the evidence on file” indicates the trial court
considered evidence that a party filed after the hearing but before the date that it
issued a ruling).
5
The evidence before the trial court regarding Haryanto’s account indicates
Haryanto opened the account in June 2004. Beach’s affidavit, the only evidence
Haryanto filed to support his special appearance, does not address when Haryanto
opened the account or where he lived when the account was opened.
8
A trial court must determine a special appearance on the basis of the
pleadings, the stipulations of the parties, the affidavits, the attachments to the
pleadings filed by the parties, the results of discovery, and any oral testimony
presented at the hearing. See Tex. R. Civ. P. 120a(3). Thus, the allegations in the
plaintiff’s pleadings frame the dispute and identify the facts that are in dispute as
well as those that are not. With respect to the allegations in dispute, the parties
must present facts to the trial court on the disputed issues so they may be resolved.
See Kelly, 301 S.W.3d at 658 n.4 (explaining that the evidence and attachments
relevant to the special appearance are used to support or undermine the allegations
that are in the parties’ pleadings).
Therefore, although Haryanto’s pleadings generally allege that he did not
conduct business in Texas, his general and conclusory pleading did not contradict
American Express’s specific factual allegation that Haryanto opened the credit-
card account while residing in Texas. See Lobell v. Capital Transp., LLC, 2015
Tex. App. LEXIS 12628, No. 03-13-00855-CV, **20-21 (Tex. App.—Austin Dec.
15, 2015, no pet.) (mem. op.); Hoagland v. Butcher, 396 S.W.3d 182, 193 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied). Under the burden shifting analysis
described in Kelly, and given the pleadings before the trial court regarding the
special appearance, the burden of pleading facts and proving that Haryanto was not
a resident of Texas in 2004 when he opened the account fell to Haryanto. See
9
Kelly, 301 S.W.3d at 658 (“Once the plaintiff has pleaded sufficient jurisdictional
allegations, the defendant filing a special appearance bears the burden to negate all
bases of personal jurisdiction alleged by the plaintiff.”). In this case, Haryanto’s
pleadings and the jurisdictional evidence before the trial court failed to place this
jurisdictional fact in issue.
The evidence before the trial court also shows that after opening the credit-
card account, American Express sent Haryanto’s monthly account statements to the
address he provided in Spring. The evidence also shows that Haryanto never
changed his mailing address as it related to his relationship with American
Express, and that American Express sent all of his statements to him in Texas.6 In
our opinion, the act of applying for a credit card while residing in Texas and then
using a Texas address to receive monthly statements on the account is an act that
constitutes “doing business” under the Texas long-arm statute. See Tex. Civ. Prac.
& Rem. Code Ann. § 17.042 (providing nonexclusive list of acts that constitute
doing business for purposes of long-arm jurisdiction). Because Haryanto resided in
Texas when he applied for and created the account and then never changed his
address, we further conclude that Haryanto benefitted from Texas’ laws regulating
6
The agreement between Haryanto and American Express provides that
accountholders notify American Express of changes to their addresses.
10
consumer debt collection practices that occur within Texas. 7 See Tex. Fin. Code
Ann. §§ 392.001-.404 (West 2006).
The parties dispute whether the contacts Haryanto had with Texas regarding
his account were sufficient to justify the trial court’s exercise of specific
jurisdiction over the suit. When a defendant’s contacts with the forum are analyzed
to determine if specific jurisdiction exists, the minimum-contacts analysis focuses
on the relationship between the defendant, the forum, and the litigation. Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 575-76 (Tex. 2007). To support a
finding of specific jurisdiction, there must be a “substantial connection” between
the defendant’s contacts and the operative facts of the litigation. Id. at 585.
Although Haryanto used the credit card extensively overseas, the
jurisdictional facts show that he was a resident of Texas when the card was issued
and that all of his monthly statements were sent to him in Texas. Although required
7
While the agreement between Haryanto and American Express has a
choice of law provision providing Utah law and federal law as the governing law
relating to the agreement and account, neither Texas law nor the choice of law
provision in the agreement indicates that the Texas Finance Code provisions
regulating debt collection practices in Texas do not apply to a creditor seeking to
collect a debt in Texas, and Texas has a strong interest in regulating debt collection
practices that occur within its borders. See generally, Citizens Ins. Co. of Am. v.
Daccach, 217 S.W.3d 430, 440 (Tex. 2007) (noting that given Texas’ strong
interest in regulating the sales of securities in and from Texas, the registration
provisions of the Texas Securities Act, requiring dealers to be registered when they
were in Texas when the securities were offered or sold, were governed “under any
conflict of law principles that might apply”).
11
to inform American Express of any changes to his mailing address, he never did
so. Additionally, the evidence before the trial court shows that Haryanto’s credit
card was used to obtain goods and services from merchants located in Texas on a
frequent basis, and that while the account relationship existed, Haryanto traveled to
Texas to see his mother and charged services sold by Texas merchants to the card
while he was there.
With respect to where the relationship of the parties centers, the evidence
shows that charges to the card within the United States are more centered in Texas
than in any other State. We conclude that a substantial connection exists between
Haryanto’s contacts with Texas and the operative facts of American Express’s suit
for debt. Based on the pleadings and the evidence before the trial court, we hold
that Haryanto’s contacts with Texas were sufficient to allow a Texas court to
exercise jurisdiction over American Express’s suit to collect the debt that Haryanto
owed on the account. 8
Once a court determines that a nonresident has sufficient minimum contact
with the forum that specific jurisdiction exists, those contacts are analyzed to
8
Given our conclusion that specific jurisdiction exists over the suit
American Express filed to collect a debt, we do not reach American Express’s
argument asserting that the trial court also had general jurisdiction over its claim.
See Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269, 279 (Tex. App.—Houston
[14th Dist.] 2009, no pet.) (noting that “[i]f the court finds specific jurisdiction
over a defendant based on one cause of action, the court need not address
jurisdiction as to any other causes of action[]”).
12
determine whether a finding of personal jurisdiction is consistent with the
principles of fair play and substantial justice. Guardian Royal, 815 S.W.2d at 228.
Factors used to evaluate whether the exercise of jurisdiction would be fair and just
in a case include (1) the burden on the defendant to litigate the case in the forum,
(2) the interest of the forum state in deciding the dispute, (3) the plaintiff’s interest
in obtaining convenient and effective relief, (4) the interstate judicial system’s
interest in obtaining the most efficient resolution of the controversy, and (5) the
shared interest of the several states in further fundamental substantive social
policies. Id. “These considerations sometimes serve to establish the reasonableness
of jurisdiction upon a lesser showing of minimum contacts than would otherwise
be required.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985).
“However, regardless of these factors, it must be established that the nonresident
defendant purposely established minimum contacts with the forum state.”
Guardian Royal, 815 S.W.2d at 228. And, even when a nonresident defendant has
purposely established minimum contacts with the forum, the exercise of
jurisdiction over him may not be fair and reasonable under the facts of a particular
case. Burger King, 471 U.S. at 477–78. Nonetheless, “[o]nly in rare cases [] will
the exercise of jurisdiction not comport with fair play and substantial justice when
the nonresident defendant has purposefully established minimum contacts with the
13
forum state.” Guardian Royal, 815 S.W.2d at 231 (citing Burger King, 471 U.S. at
477-78).
Based on all of these factors, we conclude that the exercise of personal
jurisdiction over Haryanto is consistent with traditional notions of fairness and
justice. While Haryanto contends he would be substantially burdened by being
required to litigate in Texas because he resides in Singapore, Haryanto’s agreement
with American Express includes an arbitration agreement, which contemplates that
any disputes regarding the card would take place “in the federal judicial district of
your residence.” When Haryanto entered into the agreement with American
Express, the jurisdictional facts indicate that the parties contemplated a Texas
forum for disputes related to the use of the card. Also, Haryanto never changed the
address for the account and nothing indicates that he ever established another
residence within the United States. Therefore, it appears that Haryanto should have
reasonably anticipated that litigation to resolve disputes over the account would be
brought against him in Texas. While Haryanto argues that he would be unduly
burdened by litigating the dispute in Texas, there is no evidence showing that a
forum within the United States in some other state would be more convenient.
Generally, the distance that a defendant may be required to travel is not a
significant consideration in deciding whether that person would be unduly
burdened, given modern transportation and facts that do not show the defendant is
14
unable to travel. See Citron Holdings, LLC v. Minnis, 305 S.W.3d 269, 288 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
We also look to the contract’s choice of law clause in evaluating whether a
defendant contemplated being sued in the forum. In this case, the contract contains
a Utah choice of law provision; however, the written agreement does not contain a
provision stating that the debtor agreed to submit to the jurisdiction of Utah courts
to resolve any disputes. Additionally, the record does not show that Haryanto ever
lived in Utah or that he contemplated he might be sued there. There was also no
evidence that Haryanto had substantial contacts in Utah. While we do not ignore
the choice of law provision in determining what was fair and just, the choice of law
clause is not dispositive on a determination of whether it is fair and just to require
that Haryanto defend the debt collection suit in Texas resulting from an account
that he formed while residing in Texas. See Minnis, 305 S.W.3d at 282.
We also address the fairness of requiring Haryanto to defend this suit in
Texas. With respect to fairness, we note that Haryanto structured his relationship
with American Express in a manner that provided him greater protection as a
debtor than the protection available to him under federal law. Compare Federal
Debt Collection Act, 15 U.S.C.A. § 1692a(6) (current through PL 114-115)
(defining “debt collector” in a way that the provision does not include creditors),
with Tex. Fin. Code Ann. § 392.001(6) (defining “debt collector” more broadly to
15
include creditors seeking to recover on a debt owed them directly by their debtors);
see also Monroe v. Frank, 936 S.W.2d 654, 660 (Tex. App.—Dallas 1996, writ
dism’d w.o.j.) (holding that the definition of “debt collector” under the Texas Debt
Collection Practices Act, the predecessor to the provision now found in the Finance
Code, “applies to entities attempting to collect their own debts” 9). Given Texas’
interest in regulating debt collection practices that occur within the State, and the
fact that the account was opened by a Texas resident and then maintained through
the use of a Texas address, we conclude it is fair to require the suit to be tried in
Texas. Additionally, we note that Haryanto has not explained why Utah would not
desire to see a contract governed by the laws of its state enforced somewhere
within the United States, likely the sole forum in which Haryanto is subject to
being sued for the debt at issue.
After weighing all of the relevant factors, we conclude that the Texas courts
may exercise personal jurisdiction over Haryanto in a suit to collect the debt
associated with a card at issue, and that the exercise by the court of specific
jurisdiction over the dispute between the parties in this case does not offend
traditional notions of fair play and substantial justice. See Kelly, 301 S.W.3d at
9
The Texas Debt Collection Practices Act was revised and recodified in
1997. See Act of May 24, 1997, 75th Leg., R.S., ch. 1008 § 1, sec. 392.001(6),
§§6-7, 1997 Tex. Gen. Laws 3091, 3562, 3602-603 (current version at Tex. Fin.
Code Ann. § 392.001(6)).
16
659. We hold that the trial court erred by dismissing American Express’s suit for
lack of jurisdiction.
Conclusion
We agree with American Express that Haryanto purposefully availed himself
of the privilege of creating his account while residing in Texas, that Haryanto had
sufficient contacts with the State to allow the court to exercise specific jurisdiction
over the case, and that the maintenance of the suit does not offend traditional
notions of fair play or substantial justice. Therefore, we sustain issues one, two,
and four. Given our resolution of these issues, we need not resolve American
Express’s remaining three issues. 10 Tex. R. App. P. 47.1. We reverse the trial
court’s order granting the special appearance, render an order denying Haryanto’s
special appearance, and remand the cause to the trial court for further proceedings
consistent with the opinion.
REVERSED AND RENDERED IN PART; REVERSED AND
REMANDED IN PART.
___________________________
HOLLIS HORTON
Justice
Submitted on July 31, 2015
Opinion Delivered April 21, 2016
Before McKeithen, C.J., Horton and Johnson, JJ.
10
Issue three asserts that Haryanto had sufficient contacts to support general
jurisdiction. Issue five argues that Haryanto’s special appearance was improperly
and insufficiently verified. Issue six asserts that Haryanto generally appeared in the
suit and that by doing so, waived his special appearance.
17