Clinton Hucks and Shalynn Hucks v. Valerie Salazar and Julissa Salinas ( 2018 )

NUMBER 13-17-00426-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CLINTON HUCKS AND
SHALYNN HUCKS, Appellants,
v.
VALERIE SALAZAR AND
JULISSA SALINAS, Appellees.
On appeal from the County Court at Law No. 1
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
By two issues, which we address as one, appellants Clinton and Shalynn Hucks
(the Hucks) challenge the trial court’s denial of their special appearance. The Hucks
allege that the trial court erred in denying their special appearance because the appellees
Valerie Salazar and Julissa Salinas (collectively Salazar) did not plead sufficient
allegations to bring the Hucks within personal jurisdiction of the trial court and the trial
court denied the Hucks’s special appearance without citing to any authority or grounds.
We reverse and remand.
I. BACKGROUND
Salazar filed suit against the Hucks and Carlos Salinas1 to recover damages from
an automobile accident that occurred in Oklahoma. Salazar’s petition simply stated that
the losses, damages, and injuries were a result of an automobile accident. In the
Hucks’s special appearance, they clarified that the automobile accident in question
occurred in Garvin County, Oklahoma, not Hidalgo County, where the suit was filed, or
even in Texas. Salazar stated in the petition that Salinas resides in Hidalgo County,
contributed to the accident by failing “to pay attention and take evasive action,” and venue
is proper due to Salinas being a Hidalgo County resident.
Salazar’s petition also stated the accident was caused by the Hucks’s negligence
when Clinton “failed to properly apply the truck’s brakes to secure his vehicle from striking
the rear of [Salazar’s] vehicle.” Salazar alleged Shalynn committed negligent
entrustment of her vehicle by allowing Clinton, “a reckless and incompetent driver” to
operate the vehicle, while alleging additional causes of actions against all three parties.
Salazar requested monetary damages.
The Hucks responded by filing a special appearance. In their special appearance,
the Hucks stated that both Clinton and Shalynn are residents of Oklahoma, have no ties
to Texas, and because they “are not residents of Texas, do not have minimum [contacts]
1 Salinas is not a party to this appeal.
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in Texas and the exercise of jurisdiction over them offends traditional notions of fair play
and substantial justice.” Additionally, the Hucks claim the automobile driven by Clinton
is not registered in Texas. The Hucks also stated that requiring them to travel hundreds
of miles to defend themselves would be “unduly burdensome and expensive.” Their
special appearance also argued that there are “no venue allegations in the petition which
establish venue against them in Hidalgo County.” The Hucks filed sworn affidavits
stating similar facts supporting their special appearance.
Salazar filed a response stating the trial court should overrule the Hucks’s special
appearance because the Hucks waived their “special appearance by challenging venue,
which is outside the scope of special appearance.” Salazar claimed the Hucks have
invoked the trial court’s judgment on a question other than jurisdiction by stating there
were no venue allegations in the original petition.
The trial court held a short hearing on the Hucks’s special appearance, took into
account the evidence on file, and, thereafter, denied the motion. This interlocutory
appeal followed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7) (West, Westlaw
through 2017 1st C.S.).
II. SPECIAL APPEARANCE IMPROPERLY DENIED
By two issues, which we construe as one, the Hucks contend the trial court erred
in denying their special appearance.
A. Standard of Review
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
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Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). A defendant challenging
a Texas court’s personal jurisdiction over it must negate all jurisdictional bases. Id.
Whether a court has personal jurisdiction over a defendant is a question of law. Id. at
794. However, the trial court must frequently resolve questions of fact before deciding
the jurisdiction question. Id. When a trial court does not issue findings of fact and
conclusions of law with its special appearance ruling, all facts necessary to support the
judgment and supported by the evidence are implied. Id. at 795. When the appellate
record includes the reporter’s and clerk’s record, these implied findings are not conclusive
and may be challenged for legal and factual sufficiency in the appropriate appellate court.
Id. For legal sufficiency points, if there is more than a scintilla of evidence to support the
finding, the no-evidence challenge fails. Id.
B. Applicable Law
The Texas long-arm statute governs Texas courts’ exercise of jurisdiction over
nonresident defendants. Id. (referencing TEX. CIV. PRAC. & REM. CODE §§ 17.041–.045
(West, Westlaw through 2017 1st C.S.)). This statute permits Texas courts to exercise
jurisdiction over nonresident defendants that “do business” in Texas, and the statute lists
some non-exclusive activities that constitute “doing business.” Id. (quoting TEX. CIV.
PRAC. & REM. CODE § 17.042)). The supreme court has held that section 17.042’s broad
language extends Texas courts’ personal jurisdiction “as far as the federal constitutional
requirements of due process will permit.” Id. (quoting U-Anchor Adver., Inc. v. Burt, 553
S.W.2d 760, 762 (Tex. 1977)).
Personal jurisdiction over nonresident defendants is constitutional when two
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conditions are met: (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. Id. (citing Internat’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
Personal jurisdiction exists if the nonresident defendant’s minimum contacts give
rise to either specific or general jurisdiction. Specific jurisdiction exists when the
plaintiff’s claims “arise out of” or are “related to” the defendant’s contact with the forum.
Searcy v. Parex Resources, Inc., 496 S.W.3d 58, 67 (Tex. 2016) (quoting Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 nn 8, 9 (1984)). The United
States Supreme Court has emphasized that the defendant’s relationship, not the plaintiff’s
relationship, with the forum state is the proper focus of specific jurisdiction analysis. Id.
General jurisdiction relates to suits where a defendant’s “continuous. . . operations within
the state [are] thought so substantial and of such a nature as to justify suit against it on
causes of action arising from dealings entirely distinct from those activities.” Id. at 71.
1. Special Appearance challenging Personal Jurisdiction
Under rule 120(a), a special appearance, properly entered, enables a non-resident
defendant to challenge personal jurisdiction in a Texas court. See TEX. R. CIV. P. 120(a);
Grynberg v. M-I L.L.C., 398 S.W.3d 864, 876 (Tex. App.—Corpus Christi 2012, pet.
denied). Rule 120(a) mandates, however, that a special appearance be filed “prior to a
motion to transfer venue or any other plea, pleading, or motion.” TEX. R. CIV. P. 120(a);
Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004) (per curiam). This is
sometimes referred to as the “due-order-of-pleading requirement.” Exito Elecs.Co., 142
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S.W.3d at 305.
In addition to the due-order-of-pleading requirement, rule 120a also entails a “due-
order-of-hearing” requirement, which “means that a special appearance motion ‘shall be
heard and determined before a motion to transfer venue or any other plea or pleading
may be heard.’” First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 776 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (quoting TEX. R. CIV. P. 120a(2)); Wilson v. Chemco
Chem. Co., 711 S.W.2d 265, 266 (Tex. App.—Dallas 1986, no writ) (“A special
appearance not ruled upon by the trial court presents nothing for review.”); see Milacron,
Inc. v. Performance Rail Tie, L.P., 262 S.W.3d 872, 876 (Tex. App.—Texarkana 2008, no
pet.) (“Rule 120a requires that the specially appearing defendant timely request a hearing,
specifically bring that request to the trial court’s attention, and secure a ruling on the
preliminary question of personal jurisdiction.”).
2. General Appearance Waiver
Rule 120a requires strict compliance, and a non-resident defendant will be subject
to personal jurisdiction in Texas courts if the defendant enters a general appearance.
Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.—Fort Worth 1995, no writ); Boyd v.
Kobierowski, 283 S.W.3d 19, 21 (Tex. App.—San Antonio 2009, no pet.) (“A general
appearance entered before a special appearance waives any special appearance
complaint.”); see First Oil P.L.C., 264 S.W.3d at 776 (setting out that strict compliance
with special-appearance rule of civil procedure 120a is required because failure to do so
results in waiver”). ”[A] party enters a general appearance when [they] (1) invoke the
judgment of the court on any question other than the court’s jurisdiction, (2) recognizes
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by [their] acts that an action is properly pending, or (3) seeks affirmative action from the
court.” Exito Elecs. Co., 142 S.W.3d at 304; see Dawson–Austin v. Austin, 968 S.W.2d
319, 322 (1998).
C. Burden of Proof
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). The plaintiff bears the initial burden of pleading sufficient allegations to bring a
nonresident defendant within the provisions of the Texas long-arm statute. Moncrief Oil
Int’l Inc. v. OAO Gazprom Exp., L,L.C., 414 S.W.3d 142, 149 (Tex. 2013); Kelly, 301
S.W.3d at 658; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).
When the plaintiff’s initial burden is met, the burden shifts to the defendant who then has
the burden of negating all bases of jurisdiction alleged in the plaintiff’s petition. Kelly,
301 S.W.3d at 657–58; Moki Mac, 221 S.W.3d at 574.
The nonresident defendant can negate jurisdiction on either a factual or a legal
basis. Kelly, 301 S.W.3d at 659. To negate jurisdiction on a factual basis, the
nonresident defendant can disprove the plaintiff’s allegations by presenting evidence that
it has no contacts with Texas. Id. The plaintiff can respond with its own evidence
affirming the allegations and risks dismissal if it cannot present the trial court with
evidence establishing jurisdiction. Id. To negate jurisdiction on a legal basis, the
nonresident defendant can show that the evidence is legally insufficient to establish
jurisdiction even if the plaintiff’s allegations are true. Id. For example, the defendant
can show that its contacts with Texas fall short of purposeful availment, that the plaintiff’s
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claims do not arise from or relate to the contacts, or that exercising jurisdiction would
offend traditional notions of fair play and substantial justice. Id.
D. Discussion
Here, Salazar’s pleadings just alleged an automobile accident occurred without
stating where the accident happened. The Hucks’s special appearance challenged the
basis of the jurisdictional claim by stating the accident had occurred in Oklahoma, where
they reside. The Hucks also swore, through an affidavit attached to their special
appearance, that they resided in Oklahoma, never resided anywhere in Texas at any time,
did not work in Texas, and that their vehicle was registered in Oklahoma.
The Hucks filed and requested a hearing on their special appearance motion
before any other motions were taken up. At the hearing, the Hucks reiterated the facts
set out in their motion and affidavit. Salazar did not present any contradicting evidence
to the Hucks’s sworn affidavits, but argued their special appearance motion should be
denied because it stated “there are no venue allegations in the petition which establish
venue against them [the Hucks] in Hidalgo County.” (emphasis added). Salazar
claimed those words were a challenge to venue and therefore, constituted a general
appearance by the Hucks, which waived their special appearance.
However, based on the evidence presented to the trial court, the Hucks negated
Salazar’s jurisdiction claim. Id. The Hucks factually proved they had no contacts with
Texas and based on the evidence presented, legally there is insufficient evidence to
establish jurisdiction. Id. The trial court erred in denying the Hucks’s special
appearance motion and we sustain the Hucks’s two issues.
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III. CONCLUSION
We reverse the denial of the special appearance and remand for proceedings
consistent with this opinion.
GINA M. BENAVIDES,
Justice
Delivered and filed the
9th day of August, 2018.
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