in the Guardianship of Armando Garcia Cardenas, an Incapacitated Person ( 2010 )

NUMBER 13-09-00560-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE GUARDIANSHIP OF ARMANDO GARCIA CARDENAS, AN
INCAPACITATED PERSON
On appeal from the County Court at Law No. 1
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Chief Justice Valdez
In this accelerated interlocutory appeal, appellant, Armando Garcia Jr., challenges
various orders entered by the trial court in proceedings involving the guardianship of
appellee, Armando Garcia Cardenas, an allegedly incapacitated person residing in Mexico.
By three issues on appeal, appellant argues that the trial court erred in: (1) granting
appellee’s special appearance; (2) denying appellant’s motion for continuance to permit
additional discovery regarding personal jurisdiction; and (3) denying appellant’s motion for
substitute service on appellee and two other interested parties. We affirm.
I. BACKGROUND
On August 11, 2009, appellant filed an application to appoint himself temporary
guardian of appellee’s person and estate.1 Appellant is appellee’s son. Appellee, an
eighty-four-year-old male allegedly dealing with various physical and mental health
illnesses,2 lived with his wife, Carmen Del Fierro De Garcia, in Valle Hermosa, Tamaulipas,
Mexico and is a well-known agricultural businessman in Mexico. Appellant noted in his
guardianship application that, while appellee has been incapacitated, appellee’s assets,
worth in excess of $1 million, “have unlawfully been expropriated by [appellee’s] two
daughters, Blanca Esthela Garcia Del Fierro and Marvelia Garcia Del Fierro.” Appellant
requested that he be named appellee’s temporary guardian to manage appellee’s “financial
affairs until [he] regains his complete mental faculties, to recover any asset which has been
improperly or illegally expropriated and to take [appellee] into his custody in order to
immediately care for hi[m] and provide hi[m] with necessary protection to ensure his safety
and welfare.” In addition to his guardianship application, appellant filed an application for
injunctive relief, seeking to enjoin the Del Fierro sisters from expropriating any of appellee’s
remaining assets and [from] interfering with the possession and care of appellee.
Also on August 11, 2009, appellant filed requests to have the Del Fierro sisters and
1
Appellant brought a parallel guardianship proceeding against appellee’s wife, Carm en Del Fierro De
Garcia, seeking to be nam ed her tem porary guardian as well. However, while the parallel proceeding was
pending in this Court, appellee’s wife passed away, and, pursuant to a m otion to dism iss, this Court dism issed
the proceeding as m oot. See In re Del Fierro De Garcia, No. 13-09-00559-CV, 2010 Tex. App. LEXIS 1612,
at *1 (Tex. App.–Corpus Christi Mar. 4, 2010, no pet.) (m em . op.) (per curiam ).
2
In his guardianship application, appellant alleges that his father suffers from “blindness, cerebral
atrophy with resulting disorientation in tim e and location, and chronic m yocardial ischem ia.”
2
appellee served with process.3 The citations of service for the Del Fierro sisters were
returned with the notation that neither individual could be found; therefore, neither of the
sisters were properly served. In the meantime, on August 21, 2009, the trial court
appointed Ruben Herrera, an attorney licensed in the State of Texas, as an attorney ad
litem representing appellee and set the hearing on the dispute for August 25, 2009.
However, pursuant to a request filed by appellant, the trial court re-set the hearing for
September 9, 2009.4
On August 28, 2009, attorney Lilia A. Gonzales filed a special appearance on behalf
of appellee, objecting to the trial court’s jurisdiction over appellee’s person and estate.5 In
this filing, Gonzales asserted that she represented Guadalupe Cortez Gonzalez, an
attorney licensed in Mexico, who, in turn, represented appellee in all personal and legal
matters in Mexico. Gonzales also asserted that appellee: (1) lives in Mexico; (2) has never
been a resident of or domiciled in Texas; (3) has a B1/B2 visa, which only allows him to
visit, not live, in the United States; and (4) has not “done any act or committed any deed
to submit himself . . . to the jurisdiction of this court.”6
3
According to the service citations, appellant believed that the Del Fierro sisters, appellee, and
appellee’s wife lived together at a house located at 809 Morelos in Rancho Viejo, Cam eron County, Texas.
4
In support of his request to re-set the hearing on his guardianship application, appellant alleged that
he was unable to properly serve appellee with notice.
5
Appellee subsequently filed a brief in support of his special appearance; attached to the brief were
several affidavits of appellee’s neighbors in Mexico and exhibits establishing that appellee is a Mexican voter
and has always resided in Mexico.
6
Appellant executed an affidavit wherein he asserted that when appellee visited the United States,
he deposited cash and other assets into various accounts at Chase and IBC banks located in Brownsville,
Texas, and that appellee owned a com m unity property interest in the house located at 809 Morelos in Rancho
Viejo. W ith respect to the house, the record contains a report generated by the Cam eron County Appraisal
District, which indicates that appellee’s wife is the sole owner of the house. It is not clear from the record
whether appellee has an ownership interest in the house.
3
On September 2, 2009, appellant filed a motion to substitute service for appellee.7
See TEX . R. CIV. P. 106. Among the items attached to this motion was an affidavit
executed by Cameron County Sheriff’s Department Deputy Refugio Perez Jr., who averred
that numerous attempts were made to serve appellee at the residence located at 809
Morelos in Rancho Viejo, Texas. However, Deputy Perez noted that he spoke to neighbors
who told him that the house was always empty and that no one appeared to live there.
On September 4, 2009, appellant notified the trial court via a letter that he had not
been able to serve appellee and requested an additional forty-five days to get appellee
served. In light of appellant’s request and appellee’s filing of his special appearance, the
trial court set the hearing on all pending motions for September 15, 2009. On September
10, 2009, appellant filed a verified motion to continue the September 15, 2009 hearing,
requesting that he be given an additional sixty days to serve appellee and investigate the
claims made by appellee in his special appearance. This motion was denied, and the
hearing took place as scheduled on September 15, 2009.
At the hearing, appellant orally moved the trial court to continue the case, but this
request was denied. After hearing arguments, the trial court granted appellee’s special
appearance and dismissed the case.8 On September 28, 2009, appellant filed a request
for findings of fact and conclusions of law. The trial court filed its findings of fact and
7
Appellant requested that service on appellee be authorized by leaving a true copy of the citation and
petition with anyone residing at the house that is older than sixteen years old or by attaching a true copy of
the citation and petition to the front door of the house. See T EX . R. C IV . P. 106(b).
8
In granting appellee’s special appearance, the trial court stated that it was dism issing the case for
lack of jurisdiction. The trial court did not explicitly rule on appellant’s m otion for substituted service; however,
the parties agree that, by dism issing the case for lack of jurisdiction, the trial court im plicitly denied appellant’s
m otion for substituted service.
4
conclusions of law on October 12, 2009. This accelerated interlocutory appeal followed.
See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(7) (Vernon 2008); see also TEX . R. APP.
P. 28.1(a).
II. SPECIAL APPEARANCE
In his first issue, appellant argues that the trial court erred in granting appellee’s
special appearance because: (1) the special appearance did not allege facts that defeated
“general or specific jurisdiction”; (2) the special appearance is defective; (3) the affidavits
relied upon by appellee cannot be used to support the special appearance because they
were executed in Mexico and perjury in Texas did not attach9; and (4) appellee failed to
comply with the requirements of Texas Rule of Civil Procedure 120a. See TEX . R. CIV. P.
120a. Appellee asserts that his bank accounts and his wife’s ownership interest in the
Cameron County house do not amount to “substantial activity” that would subject him to
the general or specific jurisdiction of the Texas court system, especially considering he has
lived in Mexico his entire life. Appellee also contends that appellant’s complaint regarding
the affidavits focuses solely on the fact that the affidavits lack an Apostille certification10
and does not challenge the fact that appellee is a resident of Mexico.
9
W e need not address appellant’s contention regarding the affidavits because the testim ony
contained therein is cum ulative of other evidence in the record to which no objection was m ade, nam ely the
statem ents of Herrera, appellee’s attorney ad litem , and the notes contained in the service citation and
affidavit executed by Deputy Perez. See T EX . R. A PP . P. 47.1; see also Reliance Steel & Aluminum Co. v.
Sevcik, 267 S.W .3d 867, 873 (Tex. 2008) (stating that the adm ission or exclusion of evidence is likely
harm less if the evidence was cum ulative of other evidence in the record).
10
An Apostille certification “certifies the authenticity of the signature, the capacity in which the person
signing the docum ent has acted, and identifies the seal/stam p which the docum ent bears.” Hope Andrade,
Tex. Sec’y of State W ebsite: Authentication of Docum ents— Frequently Asked Questions,
http://www.sos.state.tx.us/authfaqs.shtm l (last visited June 1, 2010). The Apostille certification was first
created by the 1961 Hague Convention, to which the United States becam e a subscriber in 1981. Id. The
certification allows for the verification of docum ents from different countries. Id.
5
A. Special Appearance and Personal Jurisdiction
The existence of personal jurisdiction is a question of law; however, the proper
exercise of that jurisdiction must sometimes be preceded by the resolution of underlying
factual disputes. See Goodenbour v. Goodenbour, 64 S.W.3d 69, 75 (Tex. App.–Austin
2001, pet. denied) (citing Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 715
(Tex. App.–Austin 2000, pet. dism’d w.o.j.)). In such cases, we must determine the
appropriateness of the trial court’s resolution of those disputes by an ordinary sufficiency
of the evidence review based on the entire record. Id. (citing Conner v. Conticarriers &
Terminals, Inc., 944 S.W.2d 405, 411 (Tex. App.–Houston [14th Dist.] 1997, no writ)).
However, if the trial court’s order is based on undisputed or otherwise established facts,
then we conduct a de novo review of the order. Id.; see Kelly v. Gen. Interior Constr., Inc.,
301 S.W.3d 653, 657 (Tex. 2010); see also Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 574 (Tex. 2007); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
794 (Tex. 2002).
In reviewing a point of error challenging the sufficiency of the evidence supporting
a special appearance order, we must consider and weigh all of the evidence, including
evidence that tends to prove the existence of a vital fact and that which tends to disprove
its existence. Id. (citing Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex. 1989); Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986)). In considering the evidence, if a finding is so contrary
to the great weight and preponderance of the evidence as to be manifestly unjust, the
finding should be set aside, regardless of whether some evidence supports it. Id. We
review the legal conclusions supporting the judgment to determine whether they are correct
6
as a matter of law. Id. (citing Lawrence v. Kohl, 853 S.W.2d 697, 699 (Tex. App.–Houston
[1st Dist.] 1993, no writ)); see Kelly, 301 S.W.3d at 660.
“A nonresident defendant is subject to the personal jurisdiction of Texas courts if (1)
the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of
jurisdiction does not violate federal and state constitutional due process guarantees.”
Kelly, 301 S.W.3d at 657 (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.
1990)); see TEX . CIV. PRAC . & REM . CODE ANN . §§ 17.041-.045 (Vernon 2008) (codifying the
Texas long-arm statute). “Personal jurisdiction is consistent with due process ‘when the
nonresident defendant has established minimum contacts with the forum state, and the
exercise of jurisdiction comports with traditional notions of fair play and substantial justice.’”
Id. (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Moki Mac, 221 S.W.3d
at 575).
The plaintiff bears the initial burden of pleading “sufficient allegations to bring a
nonresident defendant within the provisions of the long-arm statute.” BMC Software, 83
S.W.3d at 793. However, when a special appearance is filed, the nonresident defendant
assumes the burden of negating all bases of personal jurisdiction asserted by the plaintiff.
Moki Mac, 221 S.W.3d at 574; BMC Software, 83 S.W.3d at 793; see El Puerto de
Liverpool, S.A. de C.V. v. Servi Mundo Llantero, S.A. de C.V., 82 S.W.3d 622, 628 (Tex.
App.–Corpus Christi 2002, pet. dism’d w.o.j.). The trial court determines the special
appearance by referring to the pleadings, any stipulations made by and between the
parties, any affidavits and attachments filed by the parties, discovery, and any oral
testimony. TEX . R. CIV. P. 120a(3).
7
A nonresident’s forum-state contacts may give rise to two bases of personal
jurisdiction, “general” and “specific.” Moki Mac, 221 S.W.3d at 575. General jurisdiction
is established if the nonresident has made “continuous and systematic” contacts with the
forum, even if the cause of action does not arise from or relate to activities conducted
within Texas. Id. Specific jurisdiction, which is at issue in this case, arises when: (1) the
defendant purposefully avails itself of conducting activities in the forum state; and (2) the
cause of action arises from or is related to those contacts or activities. BMC Software, 83
S.W.3d at 795; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985). In
determining whether a defendant purposefully availed itself of the privilege of conducting
activities in Texas: (1) only the defendant’s contacts with the forum are relevant, not the
unilateral activity of another party or a third person; (2) the contacts relied upon must be
purposeful rather than random, fortuitous, or attenuated; and (3) the defendant must seek
some benefit, advantage, or profit by availing itself of the jurisdiction. See Retamco
Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338-39 (Tex. 2009); Michiana
Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005); see also Hanson v.
Denckla, 357 U.S. 235, 253 (1958). “Thus, in analyzing minimum contacts for the purpose
of determining Texas courts’ specific jurisdiction, we focus on the relationship among the
defendant, the forum, and the litigation.” Goodenbour, 64 S.W.3d at 79 (citing
Televentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900, 907 (Tex. App.–Austin 2000, pet.
denied)).
B. Guardianship Proceedings
The only purpose of a guardianship proceeding is to appoint a guardian with either
8
full or limited authority over an incapacitated person. See TEX . PROB. CODE ANN . § 602
(Vernon 2003); see also In re Miller, 299 S.W.3d 179, 185 (Tex. App.–Dallas 2009, no
pet.). “A guardianship is neither necessary nor appropriate when a person is found to be
competent.” In re Miller, 299 S.W.3d at 185. If the trial judge had found appellee to be
incapacitated, then the appropriate course of action would have been to appoint a guardian
with full or limited authority over him. Id. (citing TEX . PROB. CODE ANN . § 602). “A
conclusion that no guardian is needed is a determination that the proposed ward has
sufficient capacity to care for himself. Such a conclusion is, in effect, a finding that the
person is competent, and it is an express denial of a request to form a guardianship.” Id.
C. Whether Appellee’s Special Appearance Was Defective
At the outset of our analysis of this issue, we will address appellant’s contention that
appellee’s special appearance was “defective.” Appellant asserts that: (1) appellee did
not personally enter the special appearance; and (2) Gonzalez, appellee’s attorney in
Mexico, hired Gonzales, appellee’s attorney in Texas, to represent appellee under a
Mexican power of attorney, which has no authority in the United States because it does not
have the requisite Apostille certification and does not expressly state that Gonzalez has
the power to represent appellee outside of Mexico. Appellant also argues that the failure
of Gonzales, appellee’s attorney in Texas, to swear to the special appearance also renders
the special appearance “defective.” See TEX . R. CIV. P. 120a(1) (“Such special appearance
shall be made by sworn motion filed prior to motion to transfer venue or any other plea,
pleading or motion . . . .”).
Here, Gonzalez, appellee’s attorney in Mexico, swore to the special appearance.
9
It is undisputed that Gonzales, appellee’s attorney in Texas, is licensed to practice law in
Texas while Gonzalez, appellee’s attorney in Mexico, is not. In any event, the language
contained in the special appearance indicates that appellee hired Gonzalez to represent
him in legal matters in Mexico and that, in order to challenge the guardianship proceedings
brought by appellant, Gonzalez was required to contract with an attorney licensed in Texas
to represent appellee. Herrera, appellee’s attorney ad litem, confirmed this arrangement
at the September 15, 2009 hearing. The record does not contain any objection filed by
appellee contesting Gonzales’s representation of him in these proceedings. Appellant
does not cite, and we are not aware of, authority that supports his contention that the
special appearance was “defective” because Gonzales represented appellee in the Texas
court system.
With respect to his argument that Gonzalez’s affidavit did not satisfy the
requirements of rule 120a, appellant cites Omniplan, Inc. v. New America Development
Corporation. See 523 S.W.2d 301, 304-05 (Tex. Civ. App.–Waco 1975, no writ).
However, we do not believe that this case supports appellant’s position. In Omniplan, the
Waco Court of Appeals held that an affidavit satisfies the requirements of rule 120a if it
is “intended ‘to unreservedly swear to the allegations contained [within the special
appearance].’” Id. at 304 (citing A.H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d
619, 623 (1939)). Here, Gonzalez, appellee’s attorney in Mexico, executed a notarized
affidavit stating that all of the allegations made in the special appearance were “true and
correct” and that the allegations were “within his personal knowledge.” Clearly, Gonzalez
intended to swear to the allegations made in the special appearance. See id.
10
Furthermore, the record does not reflect that appellant filed a special exception to the
alleged defect in Gonzalez’s affidavit. See id. (noting that a failure to file a special
exception to an alleged defect in an affidavit supporting a special appearance constitutes
waiver of the issue and cannot be raised for the first time on appeal); see also TEX . R. CIV.
P. 90.
Based on the foregoing, we do not find appellant’s arguments to be persuasive, and
we find that appellee’s special appearance was effective and complied with Texas Rule of
Civil Procedure 120a. See TEX . R. CIV. P. 120a.
D. Specific Jurisdiction
Appellant conceded, at the September 15, 2009 hearing, that Texas courts do not
have general jurisdiction over appellee and stated that “specific jurisdiction is what we have
alleged.” Thus, our analysis will focus on the requirements for establishing specific
jurisdiction.
Appellant testified that the basis of the trial court’s specific jurisdiction over appellee
is appellee’s Chase and IBC bank accounts opened in Brownsville and the house owned
by appellee’s wife. Appellant also notes that appellee has failed to present evidence
suggesting that the exercise of personal jurisdiction by the Texas court system fails to
comport with fair play and substantial justice.
Herrera, appellee’s attorney ad litem, informed the trial court that he had spoken to
appellee and determined that appellee was competent. See In re Miller, 299 S.W.3d at
187 (citing TEX . PROB. CODE ANN . § 692 (Vernon 2003) (requiring the probate court to
dismiss an application for guardianship when an adult person is found to possess capacity
11
to care for himself and manage his property)). Herrera noted that appellee is a resident
of Mexico and had lived there all of his life and that he “didn’t want to be subject to the
[Texas] court’s jurisdiction.” The trial court stated that:
That’s a dog fight in another country, especially if they all live over there.
There’s monies over here that belong to mom and dad, not to mijo.
....
Everybody that’s been there [the house located in Cameron County] says
nobody lives there; nobody has ever lived there. It may be their property, but
there’s thousands and thousands of residents from Mexico who have homes
over here, who come for a day and go back to Mexico.
....
From everything I’ve seen here, these folks live in Mexico. I’m not
going to give them jurisdiction to come over here and fight for something that
they should be fighting in Mexico.
....
Now, if I get any different information, other than they have a bank account
here with two point something million dollars that looks like everybody wants
to fight over, you know, that’s their problem in Mexico. They’ve got
jurisdiction there. I’m not going to drag these people from Valle Hermosa
over here to the United States on my court order to figure out, number one,
whether they’re competent to be able to have a guardian, which two guardian
ad litems that I appointed went and talked to them and actually talked to
them, from their statements here, and seem to be competent, number one,
which is not an issue at this point.
....
Whoever has guardianship over the people, they can do whatever they want
with the property, because they’ve got the authority. But mijo son doesn’t
have guardianship over mom and dad in Mexico. He’s not going to get it
here, because we don’t have jurisdiction over these folks.
The trial court subsequently issued findings of fact and conclusions of law reflecting
12
the above-mentioned statements. In its findings of fact and conclusions of law, the trial
court noted that appellee is a resident of Valle Hermosa and a registered Mexican voter,
and held a B1/B2 visa that did not allow him to reside in the United States on a permanent
basis. The trial court further noted that the evidence was insufficient to establish the trial
court’s jurisdiction in this matter and that, in a guardianship proceeding, the trial court was
required to obtain jurisdiction over appellee’s person before proceeding. Moreover, the trial
court stated that appellee was domiciled in Mexico and that, like many other Mexican
nationals, did not reside in the Cameron County home on a permanent basis.
Appellant’s guardianship application sought to appoint appellant as guardian of
appellee’s person and estate because appellee’s health problems allegedly rendered him
incapacitated. It appears that appellant sought to manage appellee’s entire estate,
including properties and assets located in Mexico, as a result of appellee’s alleged
incapacitation. In support of his application, appellant provided several reports generated
by doctors in Mexico outlining appellee’s various maladies. For appellant to be named
appellee’s guardian and protector of his estate, it was necessary for the trial court to have
determined that appellee is incapacitated. See TEX . PROB. CODE ANN . § 602; see also In
re Miller, 299 S.W.3d at 185. However, before the trial court could reach the incapacitation
issue, it was necessary for the trial court to establish jurisdiction over appellee’s person.
See In re Miller, 299 S.W.3d at 185; see also In re Parker, 275 S.W.3d 623, 627-628 (Tex.
App.–Amarillo 2008, no pet.); Ortiz v. Gutierrez, 792 S.W.2d 118, 119 (Tex. App.–San
Antonio 1989, writ denied) (holding personal service requirement under the guardianship
statutes is jurisdictional, and therefore, the trial court properly dismissed the guardianship
13
proceeding when the proposed ward had not been personally served); In re B.A.G., 794
S.W.2d 510, 513 (Tex. App.–Corpus Christi 1990, no writ) (holding that an allegedly
incapacitated person must make a personal appearance “because that person’s rights are
being limited, even if for a short period of time”); Redmon v. Leach, 130 S.W.2d 873, 874-
78 (Tex. Civ. App.–Dallas 1939, writ dism’d judgm’t cor.) (dismissing a guardianship case
for lack of jurisdiction where the ward was a resident of Oklahoma, was not of unsound
mind, and had not been served with personal notice).
Here, appellant admitted that appellee lives, and has always lived, in Mexico.
Furthermore, the fact that appellee’s wife owns the Cameron County house does not
establish that appellee is domiciled in Texas. The record contains evidence that: (1)
nobody lives in the Cameron County house; and (2) the house has remained vacant for a
substantial period of time. Moreover, the record does not conclusively establish that
appellee has an ownership interest in the house, and such evidence of the acts of a third
party are not relevant to our minimum-contacts analysis. See Retamco Operating, Inc.,
278 S.W.3d at 338-39; see also Holten, 168 S.W.3d at 784. Therefore, we cannot say that
the trial court had personal jurisdiction over appellee solely based on appellee’s potential
ownership of the house.
The investment accounts at Chase and IBC banks do not reflect regular transactions
made by appellee. Documents regarding the Chase investment account show that
appellee removed shares of stock from one account and deposited them into another
account on January 26, 2009. Documents pertaining to he IBC account indicated that
appellee purchased a certificate of deposit on March 16, 2007, and that the account
14
matured on October 16, 2007.11 Neither of the account statements indicate that the
transactions were conducted by a specific bank branch in Texas. Further, to facilitate a
claimed exemption from withholding taxes regarding his Chase investment account,
appellee procured a post office box12 and filed certain forms with the Internal Revenue
Service.
Based on the evidence contained in the record, we find that appellee’s contacts with
Texas are attenuated and do not indicate that appellee purposefully availed himself of the
jurisdiction of this state. See Retamco Operating, Inc., 278 S.W.3d at 338-39; Holten, 168
S.W.3d at 784; Goodenbour, 64 S.W.3d at 79 (noting that a single act can support
jurisdiction but that a single act or occasional acts may be insufficient to establish
jurisdiction if the nature and quality of the act create merely an attenuated connection with
the forum); Televentures, Inc., 12 S.W.3d at 907; see also Burger King, 471 U.S. at 475
n.18; H. Heller & Co. v. Louisiana-Pacific Corp., 209 S.W.3d 844, 850 (Tex. App.–Houston
[14th Dist.] 2006, pet. denied) (noting that single or occasional acts may be insufficient to
establish jurisdiction where their nature and quality of the affiliation with the forum is
attenuated). We agree with the trial court that the guardianship proceeding should be
handled in Mexico, especially considering the fact that appellant seeks to manage all of
appellee’s estate in this guardianship proceeding, the majority of which is located in
Mexico. Appellant has not directed us to any authority demonstrating that the trial court’s
conclusions of law were erroneous or that its findings of fact were manifestly unjust or
11
The statem ent from IBC contains a denotation in the letterhead that IBC is based in Brownsville,
Texas; however, the statem ent does not indicate that the account was actually established at an IBC branch
in Texas.
12
The location of the post office box is unknown based on the record before us.
15
against the great weight and preponderance of the evidence. See Kelly, 301 S.W.3d at
660; Goodenbour, 64 S.W.3d at 75; Olson, 21 S.W.3d at 715. Accordingly, we conclude
that the trial court did not err in granting appellee’s special appearance. See TEX . R. CIV.
P. 120a(3); see also Kelly, 301 S.W.3d at 657 (“[W]e review de novo the trial court’s
determination of a special appearance.”). We therefore overrule appellant’s first issue.
III. MOTION FOR CONTINUANCE
In his second issue, appellant contends that the trial court violated Texas Rule of
Civil Procedure 120a(3) and, thus, abused its discretion in denying his motion for
continuance to procure evidence to establish the trial court’s in personam jurisdiction over
appellee. See TEX . R. CIV. P. 120a(3). Appellee argues that the trial court properly denied
appellant’s motion for continuance because the additional discovery sought by appellant
“was a fishing expedition to obtain the private financial records of Appellee” and appellee
has already confirmed that he had investment accounts in Texas. Appellee further argues
that the account information that appellant sought was not material to the determination
of appellee’s special appearance.
A. Applicable Law
All courts have inherent power to grant or deny a continuance. McClure v. Attebury,
20 S.W.3d 722, 729 (Tex. App.–Amarillo 1999, no pet.) (citing Bray v. Miller, 397 S.W.2d
103, 105 (Tex. Civ. App.–Dallas 1965, no writ)). When reviewing a trial court’s order
denying a motion for continuance, we consider on a case-by-case basis whether the trial
court committed a clear abuse of discretion. See BMC Software, 83 S.W.3d at 800 (citing
Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)). A trial court abuses its discretion
16
when it reaches a decision so arbitrary and unreasonable that it amounts to a clear and
prejudicial error of law. Id. Before we will reverse the trial court’s ruling, it should clearly
appear from the record that the trial court has disregarded the party’s rights. See Yowell
v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).
The Texas Supreme Court has considered the following non-exclusive factors when
deciding whether a trial court abused its discretion in denying a motion for continuance filed
for the purpose of gaining additional time for discovery: (1) the length of time the case has
been on file; (2) the materiality and purpose of the discovery sought; and (3) whether the
party seeking the continuance has exercised due diligence to obtain the discovery sought.
BMC Software, 83 S.W.3d at 800 (addressing the diligence and length of time on file
factors); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (analyzing
the materiality and purpose factors); Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907
S.W.2d 517, 521-22 (Tex. 1995) (reviewing the materiality factor); State v. Wood Oil
Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (addressing the diligence factor); see also
Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.–Houston [1st Dist.] 2001,
no pet.) (using these factors to decide whether a trial court abused its discretion in denying
a motion for continuance). To determine whether the trial court abused its discretion by
granting appellee’s special appearance without allowing additional time for discovery, we
apply these factors to the evidence in the record before us. See BMC Software, 83
S.W.3d at 800.
B. Discussion
In arguing that he should have been granted a continuance to conduct additional
17
discovery, appellant relies heavily upon Texas Rule of Civil Procedure 120a(3). See TEX .
R. CIV. P. 120a(3). Rule 120a(3) provides the following:
The court shall determine the special appearance on the basis of the
pleadings, any stipulations made by and between the parties, such affidavits
and attachments as may be filed by the parties, the results of discovery
processes, and any oral testimony. The affidavits, if any, shall be served at
least seven days before the hearing, shall be made on personal knowledge,
shall set forth specific facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify.
Should it appear from the affidavits of a party opposing the motion
that he cannot for reasons stated present by affidavit facts essential to justify
his opposition, the court may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may make such
other order as is just.
Id. (emphasis added). When describing the trial court’s power to enter orders to permit
additional discovery, rule 120a(3) utilizes the term, “may,” which does not connote a
mandatory duty. See TEX . GOV’T CODE ANN . § 311.016(1) (Vernon 2005) (“‘May’ creates
discretionary authority or grants permission or a power.”); Dallas County Cmty. College
Dist. v. Bolton, 185 S.W.3d 868, 873 (Tex. 2005); see also Burkhart v. Sedgwick Claim
Mgmt. Servs., Inc., No. 13-08-00351-CV, 2009 Tex. App. LEXIS 6983, at *11 (Tex.
App.–Corpus Christi Aug. 31, 2009, no pet.) (mem. op.). Thus, as noted above, it was
within the sole discretion of the trial court to determine whether to grant appellant a
continuance to procure additional discovery. See TEX . R. CIV. P. 120a(3); see also Barron
v. Vanier, 190 S.W.3d 841, 847 (Tex. App.–Fort Worth 2006, no pet.); M.G.M. Grand
Hotel, Inc. v. Castro, 8 S.W.3d 403, 412 (Tex. App.–Corpus Christi 1999, no pet.).
In his September 14, 2009 motion for continuance, appellant asserted, as bases for
the continuance, that he was only given two weeks to respond to appellee’s special
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appearance. Appellant further asserted that “he has reason to believe that the Proposed
Ward, ARMANDO GARCIA CARDENAS has assets in the United States and in particular
Cameron County where he has established ‘contacts’ within this Court’s jurisdiction.” On
appeal, appellant, in arguing that the trial court abused its discretion by denying his motion
for continuance, relies heavily on the Barron decision from the Fort Worth Court of
Appeals. See 190 S.W.3d at 851. We find the facts in Barron to be distinguishable.
In Barron, the Fort Worth Court concluded that the trial court abused its discretion
in denying appellant’s motion for continuance in a case pertaining to allegedly defamatory
statements made by California residents on an Internet message board about a Texas
resident who was the chief operations officer of First Cash Financial Services. Id. at 843-
44, 851. The Barron court reasoned that the additional information that appellant sought
to discover, including business communications, advertising, contacts, and internet
postings mentioning Texas, would aid in determining whether Texas courts had personal
jurisdiction over the California residents and that appellant did not have sufficient time to
conduct discovery regarding jurisdiction, when less than two weeks passed between a
federal court order, and the filing of a special appearance and the hearing on the special
appearance was set for approximately two weeks later. Id. at 847-51.
As noted above, appellee filed his special appearance on August 28, 2009, and the
trial court granted appellant two continuances and re-set the hearing on appellant’s
guardianship application for September 15, 2009, more than two weeks after the filing of
the special appearance. Nevertheless, in his appellate brief, appellant states that
additional discovery would allow him to ascertain: (1) whether appellee has an ownership
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interest in the Cameron County home; (2) the existence of investment accounts at Chase
Bank, including when they were opened, how often transactions took place, and any
changes in the account status; (3) the number of visits made to Texas by appellee or other
interested parties; and (4) United States tax filings. However, most, if not all, of the
additional information sought by appellant is already contained in the record. In fact,
appellant attached the information to his first amended application for guardianship filed
on September 15, 2009.
Included as exhibits to his first amended guardianship application are: (1) a report
produced by the Cameron County Appraisal District listing the house at 809 Morelos in
Rancho Viejo, as owned by Carmen Garcia, appellee’s wife; (2) a report created by Chase
Investment Services Corporation listing the account numbers and types of investments in
two separate accounts owned by appellee; (3) a statement reflecting the opening date,
term, balance, and other pertinent information regarding appellee’s investment account at
IBC; and (4) a “Certificate of Foreign Status of Beneficial Owner United States Tax
Withholding” filed with the United States Internal Revenue Service by appellee. Herrera,
the attorney ad litem for appellee, stated at the September 15, 2009 hearing that appellee
and other people in Valle Hermosa told him that appellee had never lived in the United
States. Moreover, Deputy Perez noted in his affidavit that he was told by neighbors that
the residence at 809 Morelos “is always empty” and that “no one is ever there.”
Based on our review, most of the additional information sought by appellant is
already contained in the record, and we cannot say that appellant’s rights were
disregarded. See TEX . R. CIV. P. 120a(3); Tenneco Inc., 925 S.W.2d at 647; CBI Indus.,
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Inc., 907 S.W.2d at 521-22; Yowell, 703 S.W.2d at 635; Barron, 190 S.W.3d at 849-50;
see also Fountain v. Burklund, No. 03-01-00380-CV, 2001 Tex. App. LEXIS 8252, at *17
(Tex. App.–Austin Dec. 13, 2001, pet. denied) (not designated for publication) (stating that
a party seeking a continuance must demonstrate sufficient cause and, when the basis for
the motion is the “want of testimony,” the movant must show that the testimony is material
and cannot be procured from any other source and that he has used due diligence to
secure it) (citing TEX . R. CIV. P. 251, 252). Moreover, appellant has not demonstrated his
diligence in procuring the requested information. See BMC Software, 83 S.W.3d at 800;
see also Wood Oil Distrib., Inc., 751 S.W.2d at 865. As a result, we conclude that the trial
court did not abuse its discretion in denying appellant’s motion for continuance for the
purposes of procuring additional discovery. See TEX . R. CIV. P. 120a(3); BMC Software,
83 S.W.3d at 800; Yowell, 703 S.W.2d at 635; see also Barron, 190 S.W.3d at 847;
Castro, 8 S.W.3d at 412. We overrule appellant’s second issue.
IV. MOTION FOR SUBSTITUTE SERVICE
In his third issue, appellant asserts that the trial court abused its discretion in
denying his motion for substitute service even though the motion was “in proper form” and
it is undisputed that appellee owns a home in Cameron County. Appellee counters by
arguing that appellant has failed to preserve this issue for appeal because he did not object
to the trial court’s denial at the September 15, 2009 hearing and he did not indicate in his
notice of appeal that he intended to appeal the trial court’s ruling on the motion for
substitute service.13
13
Because appellant has failed to preserve this issue for appeal, we need not analyze whether
appellant has a right to appeal from the denial of a m otion for substitute service. See T EX . R. A PP . P. 47.1.
21
Texas Rule of Appellate Procedure 25.1(d)(2) provides, among other things, that the
notice of appeal in a civil case must “state the date of the judgment or order appealed
from.” See TEX . R. APP. P. 25.1(d)(2); see also Dugan v. Compass Bank, 129 S.W.3d 579,
581 (Tex. App.–Dallas 2003, no pet.). Here, appellant only stated that he was appealing
the trial court’s interlocutory orders on the special appearance and the motion for
continuance. Appellant’s notice of appeal never indicates an intent to appeal the trial
court’s denial of his motion for substitute service. Furthermore, the record does not reflect
that appellant objected to the trial court’s ruling on this motion at the September 15, 2009.
See TEX . R. APP. P. 33.1(a)(1); Gallardo v. Ugarte, 145 S.W.3d 272, 276 (Tex. App.–El
Paso 2004, pet. denied); see also Old Republic Ins. Co. v. Weeks, No. 13-07-00451-CV,
2009 Tex. App. LEXIS 4139, at *14 (Tex. App.–Corpus Christi June 11, 2009, pet. denied)
(mem. op.) (“To preserve error for appeal, a party must make a timely, specific objection
to the trial court that names the grounds for the objection with sufficient specificity.”).
Therefore, based on the foregoing, we conclude that this issue is not preserved for appeal.
See TEX . R. APP. P. 25.1, 33.1; see also Parrish v. Rutherford, 159 S.W.3d 114, 117 (Tex.
App.–Corpus Christi 2004, no pet.) (holding that an issue was not preserved for appeal
because appellants’ notice of appeal failed to specify the order from which the purported
issue arose). Accordingly, we overrule appellant’s third issue.
V. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgments of the
trial court.
ROGELIO VALDEZ,
Chief Justice
Delivered and filed the
24th day of June, 2010.
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