in Re: Harvey B. Dawson

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

                                   NUMBER 13-02-138-CV

IN RE: HARVEY B. DAWSON,                                                    Relator.

                                   NUMBER 13-01-812-CV

HARVEY B. DAWSON,                                                          Appellant,

                                                   v.

PATRICIA DAWSON,                                                              Appellee.

               On petition for writ of mandamus and on appeal from

                the 107th District Court of Cameron County, Texas.

                                   O P I N I O N

          Before Chief Justice Valdez and Justices Yañez and Castillo

                                   Opinion by Justice Yañez

In this consolidated proceeding, appellant, Harvey B. Dawson, complains of the trial court=s order granting the special appearance of appellee, Patricia Ann Dawson.  We deny appellant=s request for writ of mandamus and injunctive relief, and affirm the trial court=s judgment.

                                                   BACKGROUND

Appellant and appellee were married in Minnesota in 1964. Beginning in 1985, the parties began spending several months each year, during the fall and winter, at a vacation home in Cameron County, Texas.  There was conflicting evidence as to when the parties ceased living together and where they resided.  Appellant alleges that some time in 1996, he relocated to Cameron County.  Appellee, on the other hand, testified that she and appellant lived together in Minnesota, as husband and wife, until September 14, 2000.  In June of 2000, appellant filed for divorce in Cameron County, but then non-suited the case in February 2001.  On March 7, 2001, appellant again filed a petition for divorce, but did not request the issuance of citation for service on appellee.  On March 26, 2001, appellee filed for divorce in Minnesota. Appellant was served with the notice of the Minnesota divorce on April 9, 2001.  Thereafter, appellant requested issuance of citation in the Cameron County divorce and served appellee on April 30, 2001.  Appellant filed an answer and counter-petition for divorce in the Minnesota action, wherein he sought dismissal of the case for lack of jurisdiction, but also sought affirmative relief from the Minnesota court. Meanwhile, in the Cameron County divorce action, appellee filed a special appearance, arguing that the Texas courts had no personal jurisdiction over her.  The trial court heard appellee=s special appearance and granted same.  An order was signed by the trial court granting appellee=s special appearance and dismissing the Cameron County divorce action because of lack of personal jurisdiction.  Appellant appeals from the grant of the special appearance and dismissal.  In a separate original proceeding, appellant also requests that this Court issue a writ of mandamus and/or writ of injunction, to prevent appellee from prosecuting her Minnesota divorce action.

After considering the briefs and filings of both parties, we have determined that oral argument would not significantly aid the Court in determining the legal and factual issues presented in this appeal. Tex. R. App. P. 39.8.

                                REQUEST FOR EXTRAORDINARY RELIEF

Appellant requests that this Court issue a writ of mandamus and/or writ of injunction to prohibit appellee from maintaining the Minnesota divorce.  Appellant argues that there is no adequate remedy at law to protect him from a multiplicity of suits between the same parties concerning the same issues.  Appellant further argues that if the Minnesota divorce is allowed to proceed forward, then this Court will be divested of jurisdiction.

Generally, mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding).  A court of appeals may issue a writ of mandamus or any other writ necessary to enforce its jurisdiction and to prevent the trial court from interfering with its judgments.  See Tex. Gov't Code Ann. ' 22.221(a) (Vernon Supp. 2002); In re Johnson, 961 S.W.2d 478, 481 (Tex. App.BCorpus Christi 1997, orig. proceeding).  However, the principle of comity dictates that courts exercise the power to enjoin foreign suits Asparingly, and only in very special circumstances.@  Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986); Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986).  An anti-suit injunction is appropriate in four situations: 1) to address a threat to the court's jurisdiction; 2) to prevent the evasion of important public policy; 3) to prevent a multiplicity of suits; or 4) to protect a party from vexatious or harassing litigation.  Gannon, 706 S.W.2d at 307.  The party requesting the anti-suit injunction must show that Aa clear equity demands@ the injunction.  Christensen, 719 S.W.2d at 163.  AA single parallel proceeding in a foreign forum, however, does not constitute a multiplicity nor does it, in itself create a clear equity justifying an anti-suit injunction.@  Id.; see also Gannon, 706 S.W.2d at 307.  Such a parallel proceeding will be allowed to proceed absent some other circumstances which render an injunction necessary Ato prevent an irreparable miscarriage of justice.@  Christensen, 719 S.W.2d at 163.  The mere fact that two suits present identical issues does not make their proceeding an Airreparable miscarriage of justice.@  Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 652 (Tex. 1996).

Appellant contends it would be financially burdensome to allow both the Minnesota and the Texas cases to proceed forward to resolution. However, appellant fails to demonstrate how his financial burden in the present case justifies an anti-suit injunction. As previously noted, a single parallel proceeding in a foreign forum does not, in itself, create a clear equity justifying an anti-suit injunction.  Christensen, 719 S.W.2d at 163.  Accordingly, we hold that appellant has failed to demonstrate any circumstances that would constitute an irreparable miscarriage of justice in the present case.  Appellant=s request for mandamus and injunctive relief is denied.

                                      ISSUES PRESENTED ON APPEAL

                                             SPECIAL APPEARANCE

In Texas, personal jurisdiction is challenged through the filing of a special appearance.  Tex. R. Civ. P. 120a(1). A special appearance is determined by reference 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).

The existence of personal jurisdiction is a question of law, but proper exercise of that jurisdiction is sometimes preceded by resolution of underlying factual disputes.  BMC Software Belgium, N.V. v. Marchand, 45 Tex. Sup. Ct. J. 930, 2002 Tex. LEXIS 103, at *6 (June 27, 2002); Frank A. Smith Sales, Inc. v. Atl. Aero, Inc., 31 S.W.3d 742, 746 (Tex. App.BCorpus Christi 2000, no pet.).  The standard of review of a trial court's resolution of facts in an appeal from a trial court=s order on a special appearance is by an ordinary Asufficiency of the evidence@ review.  BMC Software Belgium, 2002 Tex. LEXIS 103, at *6; Happy Indus. Corp. v. Am. Specialties, Inc., 983 S.W.2d 844, 847 (Tex. App.BCorpus Christi 1998, pet. dism'd w.o.j.).  An appellate court must review all of the evidence before the trial court on the question of jurisdiction.  Happy Indus. Corp., 983 S.W.2d at 847;  Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex. App.BDallas 1993, pet. denied).  The appellate court reviews the trial court's application of law de novo.  Frank S. Smith Sales, Inc., 31 S.W.3d at 746.

In issues one and two, appellant argues that the trial court erred in granting appellee=s special appearance because appellee failed to present evidence concerning the factual elements necessary for the granting of a special appearance, and because appellee failed to negate each issue presented by appellant establishing sufficient minimum contacts.

Appellant, as the petitioner in the trial court, had the initial burden of pleading sufficient allegations to bring appellee within the trial court=s jurisdiction.  Tex. Fam. Code Ann. ' 6.305 (Vernon 1998); McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n.2 (Tex. App.BCorpus Christi 1999, no pet.).  However, failure by a plaintiff to make jurisdictional allegations is not subject to attack by the specially appearing defendant. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202 (Tex. 1985).  Appellee, the nonresident respondent, then had the burden to negate all bases of personal jurisdiction at the special appearance hearing. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 664 (Tex. 1987); Kawasaki Steel Corp., 699 S.W.2d at 203; Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982).  Without jurisdictional allegations by the plaintiff that the defendant has committed any act in Texas, the defendant can meet its burden of negating all potential bases of jurisdiction by presenting evidence that it is a nonresident. Siskind, 642 S.W.2d at 438; Frank S. Smith Sales, Inc., 31 S.W.3d at 746; M.G.M. Grand, 8 S.W.3d at 408 n.2.

In the present case, appellant failed to plead any allegations that would bring appellee within the trial court=s jurisdiction.  At the hearing on appellee=s special appearance, appellee offered into evidence a sworn affidavit wherein she stated that she is a resident of the state of Minnesota.  Accordingly, we conclude that appellee presented evidence that she was a nonresident of Texas, and thereby, met her burden of negating all bases of jurisdiction. Appellant=s first and second issues are overruled.

In issue three, appellant argues that the trial court erred in dismissing the present action because the court maintains jurisdiction over the Texas resident and the divorce itself. 

Although appellant=s argument in support of this issue is not clear, as he combines his arguments in support of his first three issues, we interpret appellant=s argument as meaning that the trial court should not have dismissed this action, but rather should have exercised jurisdiction over appellant and the marital property located in Texas, pursuant to section 6.308 of the Texas Family Code. See Tex. Fam. Code Ann. ' 6.308 (Vernon 1998).

Section 6.308 reads as follows:

' 6.308. Exercising Partial Jurisdiction

(a) A court in which a suit for dissolution of a marriage is filed may exercise its jurisdiction over those portions of the suit for which it has authority.

(b) The court's authority to resolve the issues in controversy between the parties may be restricted because the court lacks:

(1) the required personal jurisdiction over a nonresident party in a suit for dissolution of the marriage;

(2) the required jurisdiction under Chapter 152; or

(3) the required jurisdiction under Chapter 159.

Id.  We recognize that section 6.308 allows the trial court to exercise partial jurisdiction over those portions of the suit for which it has authority.  However, the language of the statute is discretionary, not mandatory. See Tex. Gov't Code Ann. ' 311.016 (1) (Vernon 1998); Boots v. Lopez, 6 S.W.3d 292, 295 (Tex. App.BHouston [14th Dist.] 1999, pet. denied).  The statute provides that the trial court may exercise its jurisdiction.  See Tex. Fam. Code Ann. ' 6.308 (a) (Vernon 1998).  Thus, it was within the trial court's discretion whether to exercise partial jurisdiction over this case.  Boots, 6 S.W.3d at 295.  Appellant has failed to show that the trial court abused its discretion by failing to exercise its jurisdiction over the case.   Appellant=s third issue is overruled.

                         FINDINGS OF FACT AND CONCLUSIONS OF LAW

By issues four through twenty-six, appellant challenges the majority of the trial court=s findings of fact and conclusions of law, generally attacking the legal sufficiency of the evidence to support each of the findings,^[1] and arguing that the conclusions are erroneous.

A trial court's findings of fact are reviewable for legal sufficiency of the evidence by the same standard that is applied in reviewing evidence supporting a jury's answer.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Soto v. Sea-Road Int=l, Inc., 942 S.W.2d 67, 71 (Tex. App.BCorpus Christi 1997, writ denied).  In reviewing a Ano-evidence@ challenge, this Court may consider only the evidence and inferences that tend to support the challenged findings and we will disregard all evidence and inferences to the contrary.  Catalina, 881 S.W.2d at 297; Soto, 942 S.W.2d at 71. When there is more than a scintilla of evidence to support the findings, the Ano evidence@ challenge must be overruled.  BMC Software Belgium, 2002 Tex. LEXIS 103, at *9; Sherman v. First Nat=l Bank, 760 S.W.2d 240, 242 (Tex. 1988).

A trial court's conclusions of law are not binding on this Court, and we are free to make our own legal conclusions.  Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Comm. Corp., 49 S.W.3d 520, 530 (Tex. App.BCorpus Christi 2001, pet. denied); Muller v. Nelson Sherrod & Carter, 563 S.W.2d 697, 701 (Tex. Civ. App.BFort Worth 1978, no writ).  Conclusions of law are reviewed de novo.  Circle C Child Dev. Ctr., Inc. v. Travis Cent. Appraisal Dist., 981 S.W.2d 483, 485 (Tex. App.BAustin 1998, no pet.).  Conclusions of law will be reversed only if they are erroneous as a matter of law. Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex. App.BAustin 1999, pet. denied); Hofland v. Fireman's Fund Ins. Co., 907 S.W.2d 597, 599 (Tex. App.BCorpus Christi 1995, no writ).  Incorrect conclusions of law will not require reversal of the trial court=s judgment if the controlling findings of fact can support a correct legal theory. Stable Energy, 999 S.W.2d at 547.

Appellant argues that the findings of fact and conclusions of law are without evidentiary foundation because the trial court did not receive oral testimony, but rather received only documentary evidence. 

We note that Rule 120a does not require live testimony.  The trial court may resolve the challenge to its jurisdiction based on the pleadings, any stipulations of the parties, affidavits, and discovery responses.  Tex. R. Civ. P. 120a(3); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992).  In the present case, the trial court received affidavits from appellant and appellee, each of which set forth their testimony.  The trial court also received the affidavit of one of appellant=s attorneys, along with other exhibits relevant to the jurisdictional issue.  We conclude the trial court did not err in failing to receive oral testimony.

In his fourth and fifth issues, appellant argues that the trial court erred in finding that the parties resided in Minnesota until September 14, 2000, and that they ceased living together on said date. By these issues, appellant challenges findings of fact numbers two and three.  Appellee stated in her affidavit:

My husband and I lived in Minnesota for the majority of our marriage and we ceased living together as husband and wife in September of 2000.  At that time my husband left for Texas and he has stayed there ever since.  Minnesota is the last state where my husband and I are (sic) were domiciled and living together. . . . [H]e and I were still together and sleeping in the same bed until September 14, 2000.

We hold there is more than a scintilla of evidence to support findings of fact two and three.  Issues four and five are overruled.

In his seventh, eighth, seventeenth, and nineteenth issues, appellant argues that the trial court erred in finding that appellee maintains her homestead, domicile and residence in Minnesota, that appellee is a registered voter in Minnesota, and that she is a domiciliary of Minnesota.  By these issues, appellant challenges findings of fact numbers five, six, nineteen, and twenty-one.

Appellee stated in her affidavit that she is a resident of Minnesota.  Further, the trial court received a copy of appellee=s driver=s license, which reflects that appellee resides in Minnesota, and a letter from the city clerk of Eden Prairie, Minnesota, which reflects that appellee is a registered voter in Minnesota.   We conclude there is more than a scintilla of evidence to support findings numbers five, six, nineteen, and twenty-one.  Issues seven, eight, seventeen, and nineteen are overruled.

In his ninth issue, appellant argues that the trial court erred in finding that appellant filed his suit for divorce in Cameron County, Texas prior to being a domiciliary of Texas for the required six-month period of time.  By this issue, appellant challenges finding of fact number eight.

The record reflects that appellant filed his suit in Cameron County on March 7, 2001.  Appellee stated in her affidavit that she and appellant resided together in Minnesota until September 14, 2000.  We conclude there is more than a scintilla of evidence to support finding number eight. Issue number nine is overruled.

In his tenth, eleventh, and twelfth issues, appellant argues that the trial court erred in finding that appellant:  did not request issuance of service of citation on appellee at the time suit for divorce was filed in Cameron County on March 7, 2001; did not have said citation issued until after appellant was served with citation in the Minnesota suit; and, did not serve appellee with citation in the Cameron County suit until April 30, 2001.  By these issues, appellant challenges findings of fact numbers nine, twelve, and thirteen.

Appellant=s petition filed in Cameron County on March 7, 2001, states A[n]o service of citation is requested at this time.@  Further, the court=s docket sheet, in the Cameron County suit, reflects that citation was issued for service on appellee on April 12, 2001, but service was not accomplished until April 30, 2001.  Appellee=s affidavit states that she filed her suit for divorce in Minnesota and had appellant served on April 9, 2001.  Appellee=s affidavit further states that she was served with citation in the Cameron County suit on April 30, 2001.  We conclude there is more than a scintilla of evidence to support finding numbers nine, twelve, and thirteen.  Issues number ten, eleven, and twelve are overruled.

In his thirteenth issue, appellant argues that the trial court erred in finding that appellant filed an answer and counter-petition seeking affirmative relief in the Minnesota suit.  By this issue, appellant challenges finding of fact number fourteen.

A claim for affirmative relief has been defined as a defensive pleading that alleges that the defendant has a cause of action, independent of the plaintiff's claim, on which he can recover benefits, compensation or relief, even though the plaintiff may abandon his cause of action or fail to establish it.  Gen. Land Office of the State of Texas v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990). 

A copy of appellant=s answer and counter-petition filed in the Minnesota suit was received in evidence by the trial court.  In said counter-petition, appellant requests, among other things, that the Minnesota court grant the parties a divorce and an equitable division of the marital estate.  The requests for relief included in appellant=s counter-petition meet the definition of affirmative relief.  Id. Accordingly, we conclude there is more than a scintilla of evidence to support finding number fourteen.  Issue number thirteen is overruled.

In his fifteenth issue, appellant argues that the trial court erred in finding that the parties own substantial real property in Minnesota.  By this issue, appellant challenges finding of fact number sixteen.

The trial court received in evidence a copy of the property tax statement for certain real property owned by the parties in Eden Prairie, Minnesota.  The listed market value of said property is $217,000.  The trial court also received in evidence a copy of appellee=s petition for divorce, filed in the Minnesota court, wherein appellee lists as part of the marital estate two parcels of real property located in Burntside Lake, Minnesota, with an estimated value of $242,000. Additionally, appellee stated in her affidavit that all of the marital property is located in Minnesota, with the exception of a vacation home in Cameron County.  We conclude there is more than a scintilla of evidence to support finding number sixteen.  Issue number fifteen is overruled.

In his twentieth and twenty-first issues, appellant argues that the trial court erred in finding that no grounds for personal jurisdiction over appellee had been established and that there was not sufficient contacts between appellee and the state of Texas to exercise personal jurisdiction over appellee.  By these issues, appellant challenges findings of fact numbers twenty-two and twenty-three.

As previously noted, appellant failed to plead facts that would bring appellee within the jurisdiction of the Cameron County court.  Without jurisdictional allegations by the plaintiff that the defendant has committed any act in Texas, the defendant can meet its burden of negating all potential bases of jurisdiction by presenting evidence that it is a nonresident.  Siskind, 642 S.W.2d at 438.  Appellee stated in her affidavit that she is a resident of Minnesota.  Accordingly, we conclude there is more than a scintilla of evidence to support findings twenty-two and twenty-three.  Issues twenty and twenty-one are overruled.

In his twenty-second issue, appellant argues that the trial court erred in finding that A[a]ny finding of fact that is a conclusion of law, shall be deemed a conclusion of law.@  By this issue, appellant challenges finding of fact number twenty-four.

Appellee concedes that finding of fact twenty-four is not supported by the evidence, but argues that this statement is not a finding, and does not affect the trial court=s judgment.  We agree.  The trial court merely recites a correct statement of the law, that the trial court=s designation of something as finding of fact is not controlling and that this Court may treat any incorrectly designated finding as a conclusion of law.  See Ray v. Farmers= State Bank, 576 S.W.2d 607, 608 n.1 (Tex. 1979).  Issue twenty-two is overruled.

In his twenty-third through twenty-sixth issues, appellant argues that the trial court erred in concluding that: (1) the trial court does not have personal jurisdiction over appellee; (2) the trial court does not have jurisdiction over the case because the case was filed prior to appellant being a domiciliary of the state of Texas for the required six-month period of time; (3) the case should be dismissed because the trial court does not have personal jurisdiction over appellee; and, (4) the case should be dismissed because the trial court does not have jurisdiction over the case.

After reviewing the entire record, we have concluded that the trial court properly granted appellee=s special appearance.  Accordingly, we uphold the conclusions of law because we conclude that the judgment can be sustained on the legal theories advanced by appellee and it is supported by the evidence.  Harlingen Irrigation Dist., 49 S.W.3d at 520.  Appellant=s twenty-third, twenty-fourth, twenty-fifth, and twenty-sixth issues are overruled.

In his sixth, sixteenth, and eighteenth issues, appellant argues that the trial court erred in finding that appellant maintains his homestead, domicile and residence in Minnesota, and is a domiciliary of the state of Minnesota.  By these issues, appellant challenges findings of fact numbers four, eighteen, and twenty.

These issues deal with three different concepts: residence, homestead, and domicile.  In Texas, Aresidency@ is a question of fact.  Stacy v. Stacy, 480 S.W.2d 479, 482 (Tex. Civ. App.BWaco 1972, no writ).  Moreover, under Texas law, a person can have several residences.  See Snyder v. Pitts, 241 S.W.2d 136, 138 (Tex. 1951).  Although the term Aresidence@ is given a variety of meanings, depending on its context, residence generally requires both physical presence and an intention to remain. See Smith v. Bd. of Regents of the Univ. of Houston Sys., 874 S.W.2d 706, 712 (Tex. App.BHouston [1st Dist.] 1994, writ denied)(citing Martinez v. Bynum, 461 U.S. 321, 330 (1983)).  For purposes of the family code, being a Aresident of the county in which suit is filed@ means an actual, physical, continuous living in the county of suit by the party, for the specified ninety-day period, coupled with a good-faith intent to make that county home.  Tex. Fam. Code Ann. ' 6.301 (Vernon 1998);  Cook v. Mayfield, 886 S.W.2d 840, 842 (Tex. App.BWaco 1994, orig. proceeding). 

The elements of the legal concept of Adomicile@ are: (1) an actual residence, and (2) the intent to make it the permanent home. Snyder, 241 S.W.2d at 139.  AResidence,@ therefore, is a lesser-included element of the technical definition of domicile.  Id. Pursuant to the family code, a suit for divorce may not be maintained in Texas unless at the time the suit is filed, one of the parties to the suit has been a domiciliary of this state for the preceding six-month period.  Tex. Fam. Code Ann. ' 6.301 (Vernon 1998).

Generally, a Ahomestead@ is the dwelling house constituting the family residence, together with the land on which it is situated and the appurtenances connected therewith.  Farrington v. First Nat=l Bank of Bellville, 753 S.W.2d 248, 250 (Tex. App.BHouston [1st Dist.] 1988, writ denied) (citing Gann v. Montgomery, 210 S.W.2d 255, 258 (Tex. Civ. App.BFort Worth 1948, writ ref'd n.r.e.)).  We note that the term Ahomestead@ is commonly used in connection with a claimed exemption from ad valorem taxes, or an exemption from forced sale.  See Tex. Const. art. VIII, ' 1-b(c); Tex. Tax Code Ann. '' 11.13(j)(1), 11.43(a) (Vernon 2001).

As previously noted, appellee stated in her affidavit that appellant resided with her in Minnesota, until September 14, 2000. Appellee further stated, that after September 2000, appellant Aleft for Texas and he has stayed there ever since.@  The record also contains a property tax statement which reflects that appellant classified the parties= residence in Minnesota as Ahomestead.@  Accordingly, we conclude there is more than a scintilla of evidence to support the trial court=s finding that appellant=s homestead is maintained in Minnesota.  However, we further conclude that there is no evidence to support the trial court=s findings that appellant=s residence and domicile were maintained in Minnesota. 

Finding of fact number four found that appellant=s homestead, residence and domicile were all maintained in Minnesota; therefore, as to that part of finding four concerning appellant=s homestead, issue six is overruled, in part. However, as to that part of finding four relating to appellant=s domicile and residence, issue six is sustained, in part. Issues sixteen and eighteen, which challenge the court=s findings as to appellant=s residence and domicile, are sustained, in their entirety.

In his fourteenth issue, appellant argues that the trial court erred in finding that appellant made an appearance in the Minnesota suit and subjected himself to the jurisdiction of the Minnesota court. By this issue, appellant challenges finding of fact number fifteen.

A copy of appellant=s answer and counter-petition filed in the Minnesota suit was received in evidence by the trial court.  In said answer and counter-petition, appellant prays that the Minnesota court both dismiss the case for lack of jurisdiction and grant him affirmative relief.  We note that this apparent inconsistency in appellant=s answer and counter claim does not, by itself, waive appellant=s defense of lack of personal jurisdiction.  In Minnesota, a defendant may preserve a personal jurisdiction defense, even though he has asserted a counterclaim in his responsive pleading, by acting Apromptly@ to have the jurisdictional issue decided.  Federal-Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 95 (Minn. Ct. App. 1996).  There is nothing in the record to indicate that appellant has or has not sought to have the jurisdictional issue promptly decided.  Accordingly, we find there is no evidence to support finding number fifteen. Therefore, issue number fourteen is sustained.

Although we have sustained issues fourteen, sixteen and eighteen, concluding that findings of fact fifteen, eighteen, twenty are not supported by the evidence, not every erroneous finding of fact or conclusion of law mandates the reversal of an otherwise correct judgment.  If the judgment is otherwise correct on the merits and the controlling findings of fact will support a correct legal theory, we will uphold the trial court's judgment.  City of San Antonio v. Lopez, 754 S.W.2d 749, 753 (Tex. App.BSan Antonio 1988, writ denied).  Reversal is not required if the trial court=s judgment can be sustained on any legal theory supported by the evidence.  Stable Energy, 999 S.W.2d at 547.  The trial court found that it was without personal jurisdiction over appellee, and dismissed the cause.  Appellant=s residence and domicile in Texas does not confer, upon the trial court, personal jurisdiction over appellee.  See Dawson-Austin v. Dawson, 968 S.W.2d 319, 326 (Tex. 1998) (holding that trial court did not have in personam jurisdiction over wife, despite husband being a domiciliary of Texas for six months prior to filing of divorce).  We conclude that the trial court=s judgment is supported by the evidence, and findings of fact fifteen, eighteen, and twenty are not necessary to sustain the trial court=s judgment.

The judgment of the trial court is affirmed.

LINDA REYNA YAÑEZ

Justice

Do not publish. 

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 29th day of August, 2002.

---

^[1] Appellant generally frames these issues by stating Athe trial court erred in entering the finding of fact.@  Appellant does not specify whether he is challenging the legal or factual sufficiency of the evidence to support these findings; however, appellant does argue that Athere is not a scintilla of evidence to support the findings@ and Athere is no evidence to support@ same.  We read appellant=s argument as raising a challenge to the legal sufficiency of the evidence to support the findings.  Appellant asserts at one point in his brief that Afindings of fact not consistent with the evidence fail for factual sufficiency.@  While we agree that findings of fact can be reviewed for factual sufficiency of the evidence, see Zisblatt v. Zisblatt, 693 S.W.2d 944, 949 (Tex. App.BFort Worth 1985, writ dism=d w.o.j.), appellant has failed to adequately brief any issue concerning factual sufficiency.  Tex. R. App. P. 38.1(h). Accordingly, we do not review the factual sufficiency of the evidence to support the findings.