Fish v. Tandy Corp.

• Decision Date: 12 June 1997
• Docket Number: No. 2-96-170-CV,2-96-170-CV
• Citation: 948 S.W.2d 886
• Parties: Leonard FISH, Appellant, v. TANDY CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 886

948 S.W.2d 886

Leonard FISH, Appellant, v. TANDY CORPORATION, Appellee.

No. 2-96-170-CV.

Court of Appeals of Texas Fort Worth.

June 12, 1997.

Rehearing Overruled Aug. 14, 1997.

Philip R. Bishop, Mark C. Roberts, II, Kristin M. Jenkins, Bishop, Payne, Williams & Werley, P.C., Fort Worth, for Appellant.

Mark C. Hill, Melissa A. Smith, Haynes & Boone, L.L.P., Fort Worth, for Appellee.

Before DAY, LIVINGSTON and RICHARDS, JJ.

OPINION

DAY, Justice.

Appellee Tandy Corporation sued appellant Leonard Fish and Technology Stores for a declaratory judgment regarding the parties' rights and duties under a letter agreement (letter agreement) and a distributorship agreement involving distributorship rights in the area of St. Petersburg, Russia (distributorship agreement). Fish made a special appearance to challenge the trial court's personal jurisdiction over him. The trial court found it had jurisdiction. Tandy then moved for partial summary judgment against Fish. Before ruling on the summary judgment, the trial court ordered all parties to assert all their claims arising from the parties' negotiations. Fish then counterclaimed, alleging fraud and breach of contract in connection with a purported agreement between Tandy and Fish individually involving distributorship rights in the area of Russia west of Moscow (Moscow agreement). The trial court granted Tandy's first motion for summary judgment on the sole basis that any negotiations regarding distributorships in Russia were merged into the distributorship agreement. Tandy then moved for summary judgment on Fish's counterclaims, which the trial court granted.

Fish appeals, raising four points of error. Fish first complains that the trial court erroneously subjected him to personal jurisdiction in Texas. Next, he contends that the trial court erred by ordering him to file all his claims. In points three and four, he argues that the trial court erred in granting each of the summary judgments because Tandy failed to prove there were no issues of material fact and it was entitled to the judgments as a matter of law. We affirm the trial court's order denying Fish's challenge to its jurisdiction and its order to all parties to file all claims relating to their negotiations; however, we reverse the trial court's summary judgments and remand this case to the trial court.

BACKGROUND

In 1992, Fish and Tandy began negotiations regarding the rights to distribute Tandy merchandise in Russia. Fish admits that during these negotiations he acted in contemplation of forming, or on the behalf of, Technology. However, Technology's articles of incorporation were not filed until after these negotiations, October 25, 1993. Tandy and Fish agreed, during these negotiations, that Technology would open stores and distribute Tandy merchandise in St. Petersburg, Russia. However, Fish argues that in exchange for his agreement to reduce the territory of the distributorship, Tandy also promised him individually the right of first refusal on an exclusive distributorship in the area west of Moscow, Russia. He contends that this agreement is evidenced by correspondence between Tandy and him on June 22-23, 1993.

Fish individually signed a letter agreement providing that he would sign a "Distributorship Agreement for the St. Petersburg, Russia territory." This agreement also set forth deadlines for signing the distributorship agreement and for opening a St. Petersburg store. It further granted Fish the right of first refusal on distributorships in Estonia, Lithuania, and Latvia. Fish executed this letter agreement individually on September 28, 1993.

Fish, as president of Technology, and Tandy executed the distributorship agreement, which was largely a standard Tandy distributorship agreement, two weeks later. Technology's articles of incorporation were filed approximately two weeks later. At the outset, this distributorship agreement established a distributorship territory in "an area which has as its central point St. Petersburg, Russia and the surrounding market described by the area of Russia, north of latitude 58 degrees and west of longitude 50 degrees." Further, it contains a merger clause providing that "[a]ll prior negotiations and agreements between the parties hereto with respect to the subject matter of this Agreement are hereby merged herein and no statement, agreement or understanding, oral or written, not contained herein will be recognized or enforced." It also provides for arbitration of "[a]ny controversy or claim arising out of or relating to this Agreement or breach thereof shall, at the written request of either party, be submitted to arbitration."

Subsequent disagreements arose between Tandy and Fish, and Fish threatened litigation. Tandy then sued for a declaratory judgment defining the rights of the parties under both the distributorship agreement and the letter agreement and asking the court to compel arbitration. Fish made a special appearance challenging the Texas court's personal jurisdiction over him, arguing that all of his actions in Texas were taken in contemplation of the formation of, or on behalf of, Technology. The trial court ruled it had proper jurisdiction.

Tandy then filed a motion for partial summary judgment, arguing:

1. Fish acted not for himself but on the behalf of Technology;

2. The letter agreement and all prior negotiations were merged into the distributorship agreement; and

3. The distributorship agreement is unambiguous and the parol evidence rule prohibits considering extrinsic evidence to modify its terms.

Before ruling, the trial court ordered all parties to file all claims related to the negotiations between the parties regarding Russia. Fish and Technology then filed counterclaims. Fish's counterclaims alleged fraud, arguing that Tandy had promised him the right of first refusal on an exclusive distributorship in the area west of Moscow when it was, in fact, negotiating with another person to whom it eventually awarded the distributorship. He further alleged breach of this purported Moscow agreement. The trial court then granted Tandy partial summary judgment specifically on the basis that all of Fish's negotiations with Tandy on behalf of Technology regarding operations in Russia were merged into the distributorship agreement. It then ordered Technology and Tandy to arbitration.

Tandy then moved for summary judgment on Fish's counterclaims setting forth four bases:

1. Fish acted not for himself but on the behalf of Technology;

2. The letter agreement and all prior negotiations were merged into the distributorship agreement;

3. The distributorship agreement is unambiguous and the parol evidence rule prohibits considering extrinsic evidence to modify its terms; and

4. The trial court's previous partial summary judgment found "as a matter of law" that any and all negotiations were merged into the distribution agreement.

The trial court granted this summary judgment generally on all the arguments set forth in the motion and ordered that Fish take nothing.

Fish appeals the trial court's ruling on personal jurisdiction, its order to file all claims regarding the Russian negotiations, and both summary judgments.

PERSONAL JURISDICTION

Fish argues in his first point of error that he is not subject to personal jurisdiction in Texas. We disagree.

Standard of Review

When a defendant challenges a court's exercise of personal jurisdiction through a special appearance, he carries the burden of negating all bases of personal jurisdiction. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985); Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982); Nikolai v. Strate, 922 S.W.2d 229, 236 (Tex.App.--Fort Worth 1996, writ denied); Hayes v. Wissel, 882 S.W.2d 97, 99 (Tex.App.--Fort Worth 1994, no writ). When a trial court overrules a special appearance, the defendant should request it to make findings of fact according to Texas Rule of Civil Procedure 296. See Runnells v. Firestone, 746 S.W.2d 845, 849 (Tex.App.--Houston [14th Dist.] ), writ denied, 760 S.W.2d 240 (Tex.1988). Absent such findings, we view the trial court's judgment as impliedly finding all the necessary facts to support its judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990): In re W.E.R., 669 S.W.2d 716, 716-17 (Tex.1984); Runnells, 746 S.W.2d at 848. Where a complete statement of facts appears in the record, however, these implied findings are not conclusive and an appellant may challenge the sufficiency of the evidence. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). Where such points are raised, the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court's findings of fact. See id.

When a personal jurisdictional question is reviewed, we review all the evidence. See Nikolai, 922 S.W.2d at 236; Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.--Dallas 1993, writ denied). But the review is not a de novo review. The proper standard for reviewing the evidence in a case involving a challenge to in personam jurisdiction is factual sufficiency. See Nikolai, 922 S.W.2d at 236; Hotel Partners, 847 S.W.2d at 632. Thus, we may reverse the decision of the trial court only if its ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951); Runnells, 746 S.W.2d at 849. In reviewing such a point of error, we must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence that tends to disprove its existence. Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.1989), cert. denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939 (1990); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). So, considering the evidence, if a finding is so contrary to the great weight and...