Eakin v. Acosta

• Decision Date: 09 February 2000
• Docket Number: No. 04-99-00575-CV,04-99-00575-CV
• Citation: 21 S.W.3d 405
• Parties: (Tex.App.-San Antonio 2000) John J. EAKIN, Individually, and d/b/a Cypress Helicopter Company, Appellant v. Howard ACOSTA and Myron Papadakis, Appellees
• Court: Texas Court of Appeals

Page 405

21 S.W.3d 405 (Tex.App.-San Antonio 2000)

John J. EAKIN, Individually, and d/b/a Cypress Helicopter Company, Appellant v.Howard ACOSTA and Myron Papadakis, Appellees

No. 04-99-00575-CV

In the Fourth Court of Appeals San Antonio

February 9, 2000

Rehearing Overruled May 25, 2000

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 99-CI-03456 Honorable John J. Specia, Jr., Judge Presiding

[Copyrighted Material Omitted]

Sitting: Phil Hardberger, Chief Justice, Catherine Stone, Justice, Paul W. Green, Justice

OPINION

Opinion by: Catherine Stone, Justice

This appeal raises the issue of whether a Florida lawyer representing a Texas resident in a Florida lawsuit is subject to personal jurisdiction in Texas.The trial court said no, and entered an order sustaining the special appearance of the Florida lawyer, appelleeHoward Acosta.SeeTex. Civ. Prac. & Rem. Code Ann. 51.04(a)(7)(Vernon Supp. 2000).Because we agree that Acosta had insufficient contacts with Texas to justify the exercise of personal jurisdiction, we affirm the trial court's order.

Factual and Procedural Background

In 1996, appellantJohn J. Eakin("Eakin") solicited the legal assistance of Acosta to represent him in a personal injury lawsuit pending in Florida.The Florida suit arose from a helicopter crash which occurred in Louisiana in 1984.Following several long-distance telephone calls between Eakin in Texas and Acosta in Florida, the parties entered into a written contract of representation.By the terms of the contract Acosta and Myron P. Papadakis were to provide Eakin with professional legal services in his underlying personal injury claim, with Acosta to receive a 20% contingent fee and Papadakis to receive a 10% contingent fee.An addendum to the contract specified that the firm of Papadakis, Allman and Pinney would be employed as consulting attorneys to Acosta.The addendum further provided:

Myron P. Papadakis and John Rusty Allman will work subservient to the decision making control of lead attorney Howard Acosta in this matter.It is understood that Howard Acosta will be the lead attorney and Papadakis and Allman will support him in this case.All legal decisions and strategies will [be]Howard Acostas' [sic].

Although not mentioned in the addendum, the record reflects that Papadakis is licensed in Texas and Allman is licensed in Texas and California.Their firm maintains offices in both states.

Over the course of the litigation, Eakin traveled to Florida - at no time did Acosta ever travel to Texas.The case proceeded to settlement in Florida; however, a dispute arose between Eakin and Acosta about attorney's fees.Eakin filed suit for legal malpractice against Acosta in Texas, claiming Acosta availed himself of Texas jurisdiction by making representations to Eakin via long-distance telephone calls, forwarding the contract of representation to Eakin in Texas, and entering into a joint venture with Papadakis in Texas.The trial court disagreed with Eakin's contentions and granted Acosta's special appearance, from which Eakin now appeals.¹

Standard of Review

On interlocutory appeal, we review the trial court's grant or denial of a special appearance for an abuse of discretion.Magnolia Gas Co. v. Knight Equip & Mfg. Corp, 994 S.W.2d 684, 689(Tex. App.-San Antonio 1998, no pet.).Under this standard, we will not disturb the trial court's resolution of factual issues absent a showing of arbitrariness or unreasonableness.Walker v. Packer, 827 S.W.2d 833, 839-40(Tex.1992).We review the trial court's legal conclusions de novo, and we will not disturb those legal conclusions absent a showing of misapplication of the law.Magnolia Gas, 994 S.W.2d at 689.Although Eakin requested findings of fact and conclusions of law, the trial court entered none.We therefore presume that all questions of fact support the judgment.Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666(Tex.1987).However, because the appellate record contains a reporter's record, these presumed fact findings are inconclusive.Id.

Personal Jurisdiction

A Texas court may exercise jurisdiction over a non-resident if : (1) the Texas long-arm statute authorizes the exercise of jurisdiction; and (2) the exercise of jurisdiction comports with the state nd federal constitutional guarantees of due process.Guardian Royal Exch. Assur., Ltd. v. English China, 815 S.W.2d 223, 226(Tex.1991).The Texas long-arm statute authorizes the exercise of jurisdiction over nonresident defendants"doing business" in Texas.Tex. Civ. Prac. & Rem. Code Ann. 17.042(Vernon 1997).Although not an exhaustive list, several acts enumerated in the statute constitute "doing business."Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25, 29(Tex. App.-San Antonio1998, pet. dism'd w.o.j.).Since the "broad language" of the long-arm statute permits an expansive reach limited only by federal constitutional requirements of due process, Schlobohm v. Schapiro, 784 S.W.2d 355, 357(Tex.1990), we need only consider whether it is consistent with federal constitutional requirements of due process for a Texas court to exercise personal jurisdiction over Acosta.

Under the federal constitutional test of due process, a state may assert personal jurisdiction over a nonresident defendant if: (1)the defendant has purposefully established minimum contacts with the forum state; and (2) the exercise of jurisdiction comports with fair play and substantial justice.Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76(1985);National Industrial Sand Assoc. v. Gibson, 897 S.W.2d 769, 772(Tex.1995).When applying the minimum contacts analysis, we focus on Acosta's intentional activities and expectations in deciding whether it is proper to call him before a Texas court.SeeWorld-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-292(1980).To establish minimum contacts with Texas, Acosta must have purposefully availed himself of the privilege of conducting activities within the state, thereby receiving the benefit and protection of Texas laws.SeeBurger King, 471 U.S. at 474-75.His activities must be substantial enough to justify a conclusion that Acosta reasonably anticipated being called into a Texas court.Id. at 475.The presence of sufficient minimum contacts may support either general or specific jurisdiction.Guardian Royal Exch., 815 S.W.2d at 227.Eakin contends that both types of jurisdiction are established in the record.We disagree.

1.General Jurisdiction

General jurisdiction arises when a nonresident defendant engages in continuous and systematic contacts with the forum state.Guardian Royal Exch., 815 S.W.2d at 230.The events which give rise to the cause of action need not occur in the forum state.CSR Ltd. v. Link, 925 S.W.2d 591, 594(Tex.1996).However, the defendant's activities within the forum state must be substantial.Schlobohm, 784 S.W.2d at 357.

Eakin contends that Acosta has engaged in contact with Texas since 1990 by maintaining a license to practice before the United States District Court for the Western District of Texas.Eakin presented affidavit testimony indicating that Acosta had been an attorney of record in at least one case that was litigated in the United States District Court for the Western District of Texas - San Antonio Division.Eakin classifies this activity as continuous and systematic for purposes of general jurisdiction.Acosta disputes this claim, contending the federal district court in Texas granted him special permission to represent a party on the grounds that Acosta was a member in good standing of the Florida Bar.This representation took place four years prior to the instant case and Acosta made no efforts to acquire any client base in Texas.

General jurisdiction requires a showing of substantial activities in Texas by the nonresident defendant.Guardian Royal Exch., 815 S.W.2d at 230.A nonresident lawyer's one-time representation of a client in a federal district court located in Texas does not rise to the level of substantial activity.It is undisputed that Acosta is licensed as an attorney in Florida, but not in Texas.It is not unusual under such circumstances for a federal court to extend licensure to a nonresident so that the attorney may proceed in federal court.See United States District Court for the Western District of Texas, Local Rule AT-1 (1999).Further, while Acosta's license in the Western District of Texas may have remained current (and there is no evidence one way or the other on this issue), Acosta specifically denied any activity designed to develop a client base in Texas.Indeed, there is no evidence that Acosta ever utilized the license granted to him by the Western District of Texas other than in the one case in which the license was originally granted.Thus, the mere fact that Acosta is or was licensed in a Texas federal court does not establish the "continuous and systematic contacts" needed to support general jurisdiction.SeeGuardian Royal Exch., 815 S.W.2d at 230.Accordingly, the trial court could have properly determined that general jurisdiction has not been established.

2.Specific Jurisdiction

Specific jurisdiction may be asserted if the cause of action arises out of or relates to the nonresident defendant's contact with the forum state.Id.The contact between the defendant and the forum state must have occurred as a result of the defendant's purposeful conduct, and not because of the...