Michiana Easy Livin' Country, Inc., D/B/A Michiana R v. v. James G. Holten ( 2003 )

Opinion issued March 13, 2003.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00439-CV

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MICHIANA EASY LIVIN’ COUNTRY, INC. d/b/a MICHIANA R.V., Appellant

V.

JAMES G. HOLTEN, Appellee

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On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 0035433

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O P I N I O N

          This is an interlocutory, accelerated appeal from the trial court’s denial of a special appearance filed by appellant, Michiana Easy Livin’ Country, Inc., d/b/a Michiana R.V. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (7) (Vernon 2001). Michiana argues that the trial court erred by denying its special appearance. It contends that (1) the court did not have personal jurisdiction over Michiana because the Texas long-arm statute does not reach Michiana, and (2) Michiana had not established the minimum contacts required by federal due process in order for Texas courts to assert jurisdiction over it. We affirm.Background On July 14, 2001, appellee, James G. Holten, brought suit against Ford Motor Company, Coachmen Industries, Inc., Michiana, and Coachmen Recreational Vehicle Company. In his amended petition filed with the district court, Holten alleged that he was a resident of Harris County, Texas and that the subject matter of his suit, a motor home, was also located in Harris County, Texas. Holten stated that he had entered into a contract with Michiana to purchase a Class A Coachmen Catalina motor home manufactured by Coachmen equipped with a Ford Engine, and that he had taken delivery of the motor home in July 1998.

          In his petition, Holten alleged that, at the time he purchased the motor home, Michiana represented to him that (1) the motor home would be constructed with all solid wood material connected with screws, (2) the motor home’s coach would not contain nails or staples, (3) the motor home would contain a bathtub and a shower, (4) the motor home would contain a double-pedal, foot flush toilet, (5) the motor home could be serviced by any authorized Ford dealer, and (6) the motor home would comply with other specifications listed by Holten. Holten’s petition further alleged that these conditions were not met, and that the breach of these conditions constituted a violation of the Texas Deceptive Trade Practices Consumer Protection Act, as well as common law fraud, breach of warranty, and breach of contract.

          Ford Motor Company, Coachmen Recreational Vehicle Company and Coachmen Industries, Inc. filed answers, but Michiana filed a motion for special appearance and a verified denial, subject to its special appearance, a general denial, subject to its special appearance, and affirmative defenses, subject to its special appearance. Michiana also subsequently filed a supplement to its original answer, subject to its special appearance, a supplement to its motion for special appearance and an alternative motion to dismiss based upon a forum selection agreement, subject to its special appearance.

          In affidavits attached to its supplemental motion for special appearance, Michiana denied that the trial court had jurisdiction over it for the following reasons: (1) Michiana is an Indiana corporation that is not a resident of Texas, has no agent for service in Texas, has no property or employees in Texas, and is not authorized to do business in Texas; (2) Michiana does not advertise or have an Internet presence in Texas; (3) Holten contacted Michiana on his own initiative to arrange for Michiana to sell him a Coachmen motor home; (4) Michiana delivered the Coachmen motor home in Indiana to an independent third-party carrier who brought the motor home to Texas; (5) all communications between Michiana and Holten were conducted over the telephone; (6) all payments were made to Michiana in Indiana; (7) Holten was originally scheduled to accept delivery of the motor home in Indiana; and (8) the sale contract signed by Holten contained a forum selection clause designating Indiana as the forum state of all disputes arising from the sale of the motor home.

          The trial court denied Michiana’s special appearance. Discussion

The Texas Long-Arm Statute

          A Texas court may assert personal jurisdiction over a non-resident defendant only if the requirements of both the Texas long-arm statute and the United States Constitution are satisfied. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 1872 (1984); CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). The Texas long-arm statute allows a Texas court to exercise personal jurisdiction over a non-resident defendant who does business in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 2001). A nonresident does business in Texas if it:

(1)contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;

(2)commits a tort in whole or in part in this state; or

(3)recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

Id. In addition to the items on this list, the statute provides that “other acts” by the nonresident can satisfy the requirement of “doing business” in Texas. Id.; Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). The Texas Supreme Court has repeatedly interpreted this broad statutory language “to reach as far as the federal constitutional requirements of due process will allow.” CSR, 925 S.W.2d at 594. Therefore, the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations. Id.

Federal Due Process Limitations on Personal Jurisdiction

          Under the limits of the federal due process, a state may exert personal jurisdiction over a non-resident defendant only if the defendant has some minimum, purposeful contacts with the state, and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998). A non-resident who has purposely availed himself of the privileges and benefits of conducting business in Texas has sufficient contacts with the forum to confer personal jurisdiction. CSR, 925 S.W.2d at 594. However, a defendant should not be subject to the jurisdiction of a Texas court based upon random, fortuitous, or attenuated contacts. Id. at 595. The purposeful availment requirement ensures that the nonresident defendant’s contact must result from its purposeful contact, not the unilateral activity of the plaintiff or a third party. See Guardian Royal, 815 S.W.2d at 227; AmQuip Corp. v. Cloud, 73 S.W.3d 380, 385 (Tex. App.—Houston [1st Dist.] 2002, no pet.). It is the quality and nature of the contacts, rather than their number, that is important. Guardian Royal, 815 S.W.2d at 230 n.11. The exercise of personal jurisdiction is proper when the contacts proximately result from actions of the nonresident defendant which create a substantial connection with the forum state. Id. at 226.

          Holten has alleged that Michiana made misrepresentations regarding the motor home it sold to him, and that these misrepresentations constituted violations of the Texas Deceptive Trade Practices Act as well as common law fraud, breach of warranty, and breach of contract.  

Standard of Review and State of the Record

          The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the personal jurisdiction of a Texas court. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). A defendant bears the evidentiary burden of challenging the court’s assertion of personal jurisdiction by negating all jurisdictional bases. Id. Existence of personal jurisdiction is a question of law, reviewed de novo, but that determination must sometimes be preceded by the resolution of underlying factual disputes. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.). Although findings of fact are not required, see Tex. R. App. P. 28.1, if the trial court does not file findings of fact in a special appearance, all questions of fact are presumed to support the judgment. Ace Ins. Co. v. Zurich Am. Ins. Co., 59 S.W.3d 424, 427 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

          According to the Texas Rules of Civil Procedure, live testimony may be considered at a special appearance hearing. Tex. R. Civ. P. 120a(3); see also Jack B. Anglin Co. v Tipps, 842 S.W.2d 266, 269 n.4 (Tex. 1992). Here, because there is no record of the hearing, we are unable to conclusively determine whether or not the parties presented additional evidence. The clerk’s record does not contain the trial court’s docket sheet; therefore, there is no notation whether evidence was presented during the hearing. Neither party, either in briefing or during argument, definitively stated whether additional evidence was presented at the hearing. When this Court inquired during oral presentation why a reporter’s record was not compiled and presented in this appeal, Michiana’s counsel responded by stating that the “facts were not in dispute.” During argument before this Court, however, the parties alluded to evidence apparently presented to the trial court at the special appearance hearing—evidence that is not contained in our appellate record. Therefore, the circumstances of this case lead us to believe that additional evidence was offered at the special appearance hearing. Where, as in this case, the reporter’s record is incomplete or wholly absent, we must presume that the evidence presented to the trial court supported its judgment. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991).

Conclusion

          We affirm the order of the trial court. All pending motions are dismissed as moot.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.