Ball v. Bigham

• Decision Date: 23 February 1999
• Docket Number: No. 07-98-0096-CV,07-98-0096-CV
• Parties: Chuck BALL, Appellant, v. Ron BIGHAM, d/b/a R & J Engine Service & Gen Sets, Appellee.
• Court: Texas Court of Appeals

Page 343

990 S.W.2d 343

Chuck BALL, Appellant, v. Ron BIGHAM, d/b/a R & J Engine Service & Gen Sets, Appellee.

No. 07-98-0096-CV.

Court of Appeals of Texas Amarillo.

Feb. 23, 1999.

Gassaway Gurley & Mitchell (Leon Mitchell), Borger, for appellant.

Mullin Hoard & Brown LLP (John M. Brown and Robert R. Bell), Amarillo, for appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

DON H. REAVIS, Justice.

Chuck Ball (Ball), appellant, seeks reversal of a trial court order sustaining the special appearance of Ron Bigham, d/b/a R & J Engine Service & Gen Sets (Bigham), appellee, and dismissing Ball's action against Bigham for breach of contract and alternatively for damages under the Deceptive Trade Practices Act. Ball presents eight points of error contending the trial court erred in making certain findings of fact and conclusions of law. Being of the opinion that specific jurisdiction as distinguished from general jurisdiction of a nonresident is shown, ¹ we reverse the judgment and remand the cause to the trial court for further proceedings.

On January 31, 1995, Ball, a resident of Hansford County, Texas, went to Hugoton, Kansas, to meet Bigham, a resident of Stevens County, Kansas, to inquire about purchasing an engine to be used in his irrigation farming operations in Hansford County. ² In addition to his farming operations, Bigham also repaired and rebuilt engines used in the oil field industry and irrigation farming, and bought and sold rebuilt engines. Bigham did not maintain a business location, agent or representative, nor advertise in Texas, and did not own any property in Texas. The evidence was conflicting as to the source of Ball's knowledge that Bigham was a potential supplier, but that determination is not significant for purposes of our analysis. At that time, Bigham had a 353 Caterpillar engine available for sale at a price of $17,500. Ball indicated he wanted to purchase the engine, but wanted it delivered to his farm in Texas. Ball and Bigham agreed to the sale of the engine for a total price of $18,700, which included Bigham's painting and servicing of the engine, and Bigham's assistance in its delivery and installation on Ball's farm in Texas. Before he left Kansas, Ball gave Bigham a check for the agreed total price of $18,700 and Bigham gave Ball a bill of sale for the engine. ³ Bigham delivered the engine to Ball's farm in late March or early April 1995, and set the engine off and assisted Ball and others in making it operational. A few weeks later, after Ball noticed some problems with a gasket, he called Bigham. After that call, Bigham traveled from Kansas to the farm in Texas and repaired the engine.

After operating the irrigation engine for some time, Ball detected what he considered to be problems or defects with the engine and gave Bigham written notice of his claims. When Ball's request for relief was not forthcoming, he filed the underlying action. By his live pleadings, he asserted that although Bigham was a resident of Kansas, the court had specific and/or general jurisdiction over the nonresident. Bigham responded by special appearance pursuant to Rule 120a of the Texas Rules of Civil Procedure, which was first heard on March 25, 1997. While the special appearance was under advisement, the trial court granted Bigham's request to re-open the hearing, which was followed by a second hearing held on July 29, 1997. On December 29, 1997, the trial court signed its order sustaining the special appearance and dismissing Ball's action with prejudice to refiling in Texas and that Ball take nothing. Following Ball's request for findings of fact and conclusions of law, the

trial court made and signed the following findings of fact and conclusions of law on January 23, 1998:

FINDINGS OF FACT

1. Plaintiff, Ball is an individual residing at 1018 South Evans, Spearman, Hansford County, Texas.

2. Defendant, RON BIGHAM, d/b/a R & J ENGINE SERVICE & GEN SETS ("Bigham") is an individual residing in Hugoton, Stevens County, Kansas.

3. On March 25, 1997 and July 29, 1997, respectively, this Court conducted hearings on Bigham's special Appearance to the jurisdiction.

4. Bigham is not a resident of Texas.

5. Bigham is an individual who does business as R & J Engine Service & Gen Sets in Hugoton, Stevens County, Kansas.

6. On January 31, 1995, Bigham soled a 353 Caterpillar engine to Ball.

7. Ball traveled to Kansas to Bigham's place of business in Hugoton, Kansas on January 31, 1995, wherein Ball viewed the engine. On that date, Ball purchased the engine by delivery of a check to Bigham, and received a Bill of Sale in return. After purchase of the engine, Ball asked Bigham to paint the engine and deliver the engine to Hansford County, Texas.

8. Bigham painted the engine in Kansas and delivered the engine to Hansford County, Texas in the Spring of 1995.

9. At the request of Ball, in the Summer of 1995, Bigham returned to Hansford County, Texas, to repair a gasket on the irrigation engine.

10. Bigham had never lived in the State of Texas and did not: maintain any bank accounts; own and (sic) real or personal property; pay any kind of taxes; did not advertise; or maintain any offices, employees, or sales representatives in Texas.

11. Bigham had two other customers from the State of Texas. Each of these customers contacted Bigham in Kansas. An agreement for the purchase of an engine for each customer was negotiated and consummated in Kansas.

12. Bigham was not in Jerry Holton's place of business, and did not leave a business card in that business, in the Summer of 1994.

13. Bigham's actions toward the State of Texas were isolated and disjointed.

14. The contract, which serves as the basis of this lawsuit, was not negotiated nor consummated in the State of Texas.

15. A lawsuit was filed by Ball in the 84th District Court of Hansford County, Texas. The lawsuit is entitled Chuck Ball vs. Ron Bigham, d/b/a R & J Engine Service & Gen Sets.

16. Any finding of fact that is a conclusion of law is hereby deemed to be a conclusion of law and any conclusion of law that is deemed to be a finding of fact is hereby deemed to be a finding of fact.

CONCLUSIONS OF LAW

1. Bigham did not purposefully do any act or consummate any action toward the State of Texas.

2. The alleged cause of action neither arose from, nor was connected with, any acts of Bigham in the State of Texas. Bigham's contacts with Texas were not continuing and systematic.

3. The assumption of jurisdiction by the State of Texas will offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of Bigham's activities in the State of Texas, the relative convenience of the parties, the benefits and protection of the laws of the State of Texas afforded the respective parties, and the basic equities of the situation.

4. Bigham had no minimum contacts with the State of Texas in regard to the sale of the engine to Ball 5. Bigham does not and has not conducted business in the State of Texas.

6. Although Bigham had some contacts with Ball in Texas, the contacts alone are not sufficient contacts to confer jurisdiction.

7. The nature and extent of Bigham's contacts with the State of Texas are de-minimis at best.

8. Bigham did not meet the minimum contacts required with the State of Texas in order for jurisdiction to be conferred.

9. Bigham did not purposefully avail himself of the benefits of the State of Texas and had no reasonable expectation of being called into Court in the State of Texas.

10. Forcing Bigham to defend himself in the State of Texas would deprive Bigham of due process of law.

11. Any conclusion of law that is deemed to be a finding of fact is hereby deemed to be a finding of fact and any finding of fact that is a conclusion of law is hereby deemed to be a conclusion of law.

Standard of Review for Special Appearance

The standard of review for a plea to the jurisdiction is sufficiency of the evidence. De Prins v. Van Damme, 953 S.W.2d 7, 13 (Tex.App.--Tyler 1997, pet. denied), cert. denied, --- U.S. ----, 118 S.Ct. 2060, 141 L.Ed.2d 138 (1998); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.--Dallas 1993, writ denied). In our review, we must view all of the evidence before the trial court contained in the reporter's record and affidavits, stipulations and other matters as allowed under Rule 120a, on the jurisdiction issue raised in a special appearance even where, as here, the trial court made findings of fact and conclusions of law. Linton v. Airbus Industrie, 934 S.W.2d 754, 757 (Tex.App.--Houston [14th Dist.] 1996, writ denied). Moreover, a trial court need not make additional findings of fact which are shown by undisputed evidence in the record and which would relate merely to evidentiary matters. Conner v. ContiCarriers and Terminals, 944 S.W.2d 405, 411 (Tex.App.--Houston [14th Dist.] 1997, no writ). When the trial court makes conclusions of law, our review of such conclusions is de novo, Linton, 934 S.W.2d at 757, and we are required to review the uncontroverted evidence in the record that is not reflected in the court's findings of fact to determine whether the conclusions of law by the trial court are supported by the evidence as a whole. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e., 699 S.W.2d 199 (Tex.1985).

By his first two points of error, Ball contends the trial court erred in finding that (1) Bigham did not agree to perform a portion of the contract in Texas, and (2) the contract was not negotiated or consummated in Texas. Because we consider these points to raise only factual insufficiency questions, we must set out the appropriate standard of review which applies to factual sufficiency challenges in support of the trial court's findings of fact and conclusions of law, as applies to an order sustaining a special appearance.

Except as stated above, the standard of review for ...