Rodger Zimmerman v. Glacier Guides, Inc. and Jimmie Rosenbruch, Individually

    IN THE

TENTH COURT OF APPEALS

No. 10-03-00036-CV

     RODGER ZIMMERMAN,

                                                                              Appellant

     v.

     GLACIER GUIDES, INC., AND

     JIMMIE ROSENBRUCH,

                                                                              Appellees

From the County Court at Law No. 1

McLennan County, Texas

Trial Court # 20020319 CV1

MEMORANDUM OPINION

      Rodger Zimmerman filed suit against Glacier Guides, Inc. and its president Jimmie Rosenbruch for unjust enrichment after Glacier Guides refused to refund nearly $20,000 Zimmerman had paid for an Alaskan hunting trip which Zimmerman was unable to attend. Zimmerman appeals the granting of Appellees’ special appearance. We will affirm.

      Zimmerman contends in his sole issue that the court erred by granting Appellees’ special appearance because the evidence presented at the hearing supports a finding of specific jurisdiction and because the lack of jurisdictional allegations in his petition is not fatal in view of the evidence presented.

      In Lacefield v. Electronic Financial Group, this Court stated, “If the plaintiff fails to allege any jurisdictional facts [in the petition], the defendant satisfies his burden [in a special appearance hearing] by showing that he is a nonresident.” 35 S.W.3d 755, 761 (Tex. App.—Waco 2000, no pet.) (citing Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982); Vosko v. Chase Manhattan Bank, 909 S.W.2d 95, 99 (Tex. App.—Houston [14th Dist.] 1995, writ denied); Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673 (Tex. App.—Dallas 1993, writ dism’d by agr.)).

      Zimmerman contends that this holding is in conflict with the Supreme Court’s decision in Kawasaki Steel Corp. v. Middleton. 699 S.W.2d 199 (Tex. 1985). There, the Supreme Court held “that defective jurisdictional allegations in the petition . . . must be challenged by a motion to quash, not a special appearance.” Id. at 203. However, subsequent decisions by that Court and others convince us that our statement in Lacefield is correct.

      In American Type Culture Collection, Inc. v. Coleman, the Supreme Court recently described the respective burdens of the parties in a case in which a nonresident defendant files a special appearance as follows:

The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the long-arm statute. But upon filing a special appearance, the nonresident defendant assumes the burden to negate all the bases of personal jurisdiction alleged by the plaintiff.

83 S.W.3d 801, 807 (Tex. 2002) (citations omitted) (emphasis added). The Dallas Court of Appeals recently observed that, “if there are no jurisdictional allegations in a plaintiff’s petition, . . . proof that a defendant is a nonresident is sufficient to meet this burden.” Bruno’s Inc. v. Arty Imports, Inc., 119 S.W.3d 893, 897 (Tex. App.—Dallas 2003, no pet.) (citations omitted). Or as the Fourteenth Court of Appeals stated, “This standard does not mean that the nonresident defendant must negate every possible ground in the universe, but rather the acts in Texas alleged by the appellant to support personal jurisdiction.” Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 548 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

      Zimmerman concedes in his brief that “no jurisdictional facts were specifically alleged in the Petition.” Zimmerman alleges in the petition and Appellees presented evidence by affidavit that they are not Texas residents. Accordingly, Appellees satisfied their burden to negate all pleaded jurisdictional allegations. See Siskind, 662 S.W.2d at 438; Bruno’s, 119 S.W.3d at 897; Walker Ins. Servs., 108 S.W.3d at 548; Lacefield, 35 S.W.3d at 761; accord Am. Type Culture Collection, 83 S.W.3d at 807.

      Zimmerman’s sole issue is overruled. The judgment is affirmed.

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed July 7, 2004

[CV06]