Castle v. Berg, 16912

• Decision Date: 12 May 1967
• Docket Number: No. 16912,16912
• Citation: 415 S.W.2d 523
• Parties: Warren CASTLE, Appellant, v. Charles BERG, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 523

415 S.W.2d 523

Warren CASTLE, Appellant, v. Charles BERG, Appellee.

No. 16912.

Court of Civil Appeals of Texas Dallas.

May 12, 1967.

Paul Thorp, of Matthews, Weaver & Thorp, Dallas, for appellant.

Blair Rugh, of Witts, Ewing, Lee & Rugh, Dallas, for appellee.

BATEMAN, Justice.

The appellee Charles Berg obtained a judgment against appellant Warren Castle, a resident of Oklahoma, for the value of certain materials and services furnished by appellee in decorating appellant's home in Oklahoma. Citation was served by delivering the same to the Secretary of State of Texas as agent of appellant pursuant to the terms of Section 3 of Article 2031b, Vernon's Ann.Civ.St. Appellant entered a special appearance pursuant to Rule 120a, Texas Rules of Civil Procedure, moving to dismiss the suit for lack of jurisdiction over the person of appellant. Appellant appeared by his attorney at the hearing of this motion, but when the motion was overruled the attorney with leave of court withdrew and did not file an answer. The court then heard the appellee's evidence and rendered judgment for the debt. Appellant appeals on seven points of error.

The first three points of error challenge the jurisdiction of the Texas court to render the judgment against appellant in personam because he was not personally served with process within the state and was not subject to substituted service under Art. 2031b, V.A.C.S ., not having engaged in business in Texas and not having had sufficient 'minimal contacts' with Texas to give Texas courts in personam jurisdiction over him.

In examining the evidence adduced at the hearing of the motion to dismiss, we find it to be sufficient to establish, at least prima facie, that the appellant, a resident of Oklahoma, came to Dallas, Texas and entered into an oral contract with appellee whereunder the latter would purchase the materials and furnished the necessary services to decorate appellant's Oklahoma home with suitable furniture, floor and wall coverings, draperies, etc. It was not specified in the original agreement where any of the materials would be purchased, or where the work of fabricating any of them would be performed, although appellee saw fit to purchase many of the materials in Dallas and to perform the necessary services in making the draperies at his workshop in Dallas . This was with appellant's consent; and on one occasion appellant, while in Dallas primarily for another reason, assisted appellee in locating some of the materials.

After Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, in 1877, wherein the court held rather broadly that a personal judgment rendered in a state court against a nonresident, without personal service of process upon him within the state or his appearance in the action, was invalid, the trend of decisions by the United States Supreme Court has been 'toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.' McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Such jurisdiction has been recognized if the defendant, though a nonresident, have certain 'minimum contacts' with the forum state such that 'traditional notions of fair play and substantial justice' are not offended by the maintenance of the suit. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057. Such minimum contacts as the making of the contract, out of which the suit arose, in the forum state have been held sufficient to accord jurisdiction to that state without doing violence to due process. McGee v. International Life Ins. Co., supra, followed by our Supreme Court in O'Brien v. Lanpar Co., Tex.Sup.1966, 399 S.W.2d 340.

The application of the rules laid down by the foregoing authorities requires a holding that appellant's minimum contacts with the State of Texas were such as to give the trial court jurisdiction over his person, provided he was properly served under the appropriate statute. The contract was made in Texas and was, with appellant's consent, partially performed in Texas. We think these facts alone clearly bring this case within the rule of O'Brien v. Lanpar Company, supra. Appellant's first three points of error are overruled.

By his fourth, fifth and sixth points of error the appellant urges that appellee's pleadings and proof failed to invoke the provisions of Art. 2031b, V.A.C.S. and that consequently it was error for the court to overrule his motion under Rule 120a, T.R.C.P., and to render judgment by default against him.

The pertinent parts of Art. 2031b, V.A.C.S. are:

Sec. 2. 'When any * * * non-resident natural person * * * shall engage in business in this State, * * * service may be made by serving a copy of the process with the person who * * * is in charge of any business...