Bodzin v. Regal Accessories, Inc.
| Citation | 437 S.W.2d 655 |
| Decision Date | 31 January 1969 |
| Docket Number | No. 17232,17232 |
| Parties | Frank BODZIN, d/b/a IMSCO, Appellant, v. REGAL ACCESSORIES, INC., Appellee. . Dallas |
| Court | Texas Court of Appeals |
Harold B. Berman, Berman & Fichtner, Dallas, for appellant.
A. L. Vickers, of Ungerman, Hill, Ungerman & Angrist, Dallas, for appellee.
Appellant Frank Bodzin as plaintiff filed suit against appellee Regal Accessories, Inc., a foreign corporation, charging violations of the Texas Anti-Trust Laws, Sections 15.03 and 15.04 of the Business and Commerce Code, V.T.C.A. The parties will be designated as they were in the trial court. Specifically plaintiff alleges that defendant entered into agreements with plaintiff's competitors not to sell merchandise to plaintiff.
Plaintiff seeks a judgment in personam against defendant and undertakes to obtain jurisdiction of defendant by having a citation served on the Secretary of State of the State of Texas pursuant to Art. 2031b, Vernon's Ann.Civ.St., the 'Long Arm' statute. Thereafter defendant, as provided by Rule 120a, Vernon's Texas Rules of Civil Procedure, filed a special appearance plea challenging the trial court's jurisdiction.
After hearing evidence the court rendered judgment in favor of defendant, quashed the service of citation and dismissed plaintiff's suit. The written judgment signed by the court contains this recitation, '* * * the Court * * * finds that Plaintiff has failed to meet his burden to show that this Court has jurisdiction over the Defendant, that the evidence presented establishes that there were no minimum contacts within the State of Texas by the Defendant sufficient to confer jursidiction, * * * by the Court of this State.'
Plaintiff's first two points on appeal assert that (1) the court erred in holding the burden was on plaintiff to prove jurisdiction and (2) Rule 120a shows on its face that the burden of proof in a special appearance is on the movants.
Whether it was error for the trial judge to place the burden of proof on the plaintiff need not concern us in this case for two reasons. (1) The record discloses that regardless of whether he was legally obligated to do so the defendant actually assumed the burden of proof; and (2) the undisputed evidence shows the absence on those minimal contacts in the State of Texas necessary to establish service in support of a judgment in personam.
Defendant was the first to offer evidence. Excerpts from the deposition testimony of the plaintiff himself were introduced by defendant. After defendant rested its case plaintiff for the first time offered evidence. His evidence also consisted of excerpts from plaintiff's deposition. These excerpts from plaintiff's deposition constituted the only evidence introduced by either plaintiff or defendant.
Plaintiff testified, 'I dealt with New York.' He sent his orders for merchandise to defendant in New York either by letter or by telephone. His only contacts were with a Mr. Lambert in New York. The status of Mr. Lambert is not shown in the evidence. The record fails to disclose what connection if any Mr. Lambert had with defendant. It certainly does not show that he was an officer of the corporation, or an agent authorized to speak for defendant. The foregoing evidence was introduced by defendant.
Even the shipments of merchandise to plaintiff in filling orders were turned over to Pennant Shippers in New York and sent to Star Shippers Association in Texas. Plaintiff stated that the above named companies are 'expediters' in the shipment of merchandise.
Plaintiff further testified that Lambert told him of two firms in Texas who complained to defendant that plaintiff was selling his goods at too cheap a price. However plaintiff admitted that Lambert did not say that defendant had entered into any agreement not to sell to plaintiff. In fact, subsequent to the above conversation with Lambert plaintiff sent to defendant another order for goods, which order was filled by defendant without question or qualification.
It is true that Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), the landmark case on the subject, has been explained in terms not quite as restrictive as formerly. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Nevertheless the trend away from the Pennoyer case has slackened. In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), it is said:
'But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state...
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Hoppenfeld v. Crook
...review that evidence. Crothers v. Midland Products Co., 410 S.W.2d 499 (Tex.Civ .App.1967, no writ); Bodzin v. Regal Accessories Inc., 437 S.W.2d 655 (Tex.Civ.App.1969, writ ref. n.r.e.). Reaching appellant's first point of error, it seems that appellant is asserting that art. 2031b should ......
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...See Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847, 852 n. 14 (5th Cir. 1966); Bodzin v. Regal Accessories, Inc., 437 S.W.2d 655 (Tex. Civ. App.-- Dallas 1969, writ ref'd, n.r.e.); Comment, Jurisdiction Over Foreign Corporations Under Article 2031b, 39 Tex.L.Rev. 214, 218 (1960)......
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