Hull v. Gamblin

• Decision Date: 13 May 1968
• Docket Number: No. 4235.,4235.
• Parties: Ann HULL, also known as Ann Hastings, doing business under the name of Ann Hastings, Appellant, v. Rudolph D. GAMBLIN, Appellee.
• Court: D.C. Court of Appeals

Page 739

241 A.2d 739

Ann HULL, also known as Ann Hastings, doing business under the name of Ann Hastings, Appellant, v. Rudolph D. GAMBLIN, Appellee.

No. 4235.

District of Columbia Court of Appeals.

Argued December 11, 1967.

Decided May 13, 1968.

Donald Cefaratti, Jr., Washington, D. C., with whom William E. Cumberland, Washington, D. C., was on the brief, for appellant.

R. Craig Kauffman, Washington, D. C., for appellee. James W. Hiney, Jr., and Gerald K. Kita, Washington, D. C., also entered an appearance for appellee.

Before HOOD, Chief Judge, MYERS, Associate Judge, and QUINN Associate Judge (Retired).

MYERS, Associate Judge:

Appellee, a Texas resident, filed suit in a Texas court alleging fraud and seeking damages from appellant, a District of Columbia resident. Substituted service, pursuant to Article 2031b of Vernon's Annotated Civil Statutes of the State of Texas, was had upon appellant, who did not appear in Texas to defend the action. The court appointed an attorney ad litem to represent her, and, after trial, judgment was entered for appellee. Thereafter, appellee filed an action in the District of Columbia Court of General Sessions alleging that the Texas judgment remained unsatisfied. Appellant answered, denying the validity of the Texas judgment. After a full hearing, the trial judge found, inter alia, that service on appellant in the Texas action was proper and that the Texas court had jurisdiction. Accordingly, judgment was entered in favor of appellee in the amount of the Texas judgment, from which this appeal is taken.

I JURISDICTION OF THE COURT

Appellant's primary contention is that the Texas court did not have personal jurisdiction over her and therefore its judgment is void. Appellee cites the Texas "long arm" statute¹ as conferring authority on the Texas court to assume personal jurisdiction over appellant and contends that, as applied here, the statutory service fully meets the due process requirements of the Fourteenth Amendment.

The Supreme Court of Texas has ruled that "jurisdiction in this type of case must affirmatively appear on the face of the record. The provisions of Article 2031b are clear, and the plaintiff has the burden of making sufficient allegations to bring defendant within its provisions." McKanna v. Edgar, 388 S.W.2d 927, 930 (1965). To determine whether there are jurisdictional allegations sufficient to bring Article 2031b into operation, we confine ourselves to the Texas record, which reveals the following:

Appellant placed a listing in the Amarillo, Texas, classified telephone directory under the heading "Patent Searchers," advertising "Free Invention Protection Forms" and giving her District of Columbia address and telephone number. In response to this advertisement, appellee, a Texas resident, wrote to appellant inquiring as to the patentability of a device he had invented. Appellant replied, stating that, for a small fee, she would conduct a preliminary patent search in the District of Columbia. Appellee accepted the proposal. Shortly thereafter appellant advised appellee by mail that, in her opinion, his invention was patentable and offered to prepare a patent application in return for a second and larger fee. A lengthy correspondence followed, as a result of which, at appellee's request, appellant prepared the application, mailed it to Texas for appellee's approval and signature, and, upon its return to her, filed it with the United States Patent Office here. The application was rejected. Appellee then filed suit in Texas alleging that appellant had fraudulently misrepresented her qualifications to give advice on the patentability of new inventions and to prepare patent applications. The Texas court found for appellee and entered judgment in his favor.²

The question initially presented is whether the Texas "long arm" statute, set forth in part in the margin, authorizes the Texas trial court to assume personal jurisdiction over a tort-feasor who never entered Texas and who performed all the acts which are the basis of the Texas suit outside the state, where the injury directly resulting from those acts was suffered wholly within Texas borders. The answer to this question must depend on whether appellant was "doing business" in Texas within the definition of Article 2031b.

It has been held that Section 4 of Article 2031b, defining "doing business" as "the committing of any tort in whole or in part" in Texas, "is clearly intended to include a situation where the operative wrongful act occurs in another state but the injury occurs in Texas." Hearne v. Dow-Badische Chem. Co., 224 F.Supp. 90, 96 (S.D.Tex.1963). This interpretation is applicable to appellant here.

No cases in the Texas appellate courts interpreting the challenged provisions of the statute here involved³ have been called to our attention, but in construing language substantially identical to Article 2031b as contained in the Minnesota "long arm" statute,⁴ the Supreme Court of Minnesota has held that language to mean that a court of that state may assume personal jurisdiction over a nonresident defendant who commits wrongful acts outside Minnesota when the injury resulting from those acts occurs in Minnesota. Atkins v. Jones & Laughlin Steel Corp., 258 Minn. 571, 104 N.W.2d 888 (1960).⁵ When a statute confers upon the courts of a state jurisdiction over defendants who commit torts "in whole or in part" within that state, the statute clearly intends to grant jurisdiction over nonresident defendants whose wrongful acts committed outside the state cause injury to residents within that state.⁶ Where more limited jurisdiction is intended, statutes have been worded differently.⁷

We are convinced that the language of Article 2031b clearly authorized the Texas court to assume personal jurisdiction over appellant, a nonresident whose wrongful acts, although committed outside Texas, caused injury to a Texas resident within the state.

II CONSTITUTIONALITY OF TEXAS "LONG ARM" STATUTE

Appellant next contends that application of the "long arm" statute is unconstitutional because she did not have the minimum contacts with Texas essential to satisfy the due process requirements of the Fourteenth Amendment. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Initially, we note that the Hearne and Atkins cases, supra, as well as the Gray case, supra n. 7, have all held that a state's assumption of personal jurisdiction over nonresident defendants in fact situations similar to the present case met the requirements of due process. In both Atkins and Gray the contacts of the nonresident defendant with the respective forums were fortuitous, while in the case before us the contacts of appellant with the Texas forum were sought and established intentionally. Yet, in Atkins the Minnesota Supreme Court held: "It seems only fair to permit one who has suffered a wrong at the hands of a resident of a foreign state to sue in his own state irrespective of whether he can show multiple transactions or not," quoting from its earlier decision in Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670, 677 (1959).

The Supreme Court in Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958), ruled that application of the minimum contacts rule "will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."

There has been, over recent years, a clearly discernible trend toward expanding the permissible scope of state jurisdiction over nonresidents. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). However slight or heavy may be the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the "minimal contacts." We are satisfied that under the facts of the present case appellant possessed the prerequisite minimal contacts for a valid exercise by the Texas trial court of personal jurisdiction over her. We are also convinced that for the Texas court to assume jurisdiction over appellant does not of fend "traditional notions of fair play and substantial justice," as laid down in International Shoe Co. v. State of Washington, supra, 326 U.S. at 316, 66 S.Ct. at 158. Of her own choice and upon her initiative appellant advertised her services in a publication designed for general circulation only in Texas. But for that advertisement, appellee might never have been in communication with appellant. All representations forming the basis for the suit were addressed to a Texas resident. All appellant's essential business purposes were carried on in Texas as fully as if she had been present in the state. The fact that the record of the Texas court does not show a continuous course of business transactions between appellant and numerous other Texas residents does not prevent either Texas or this court from finding the necessary minimum contacts.⁸

III WAS THE JUDGMENT OBTAINED AGAINST THE WRONG PARTY?

The judgment in Texas was obtained by appellee against "Ann Hastings, an individual." Appellant contends that her correct name is "Ann Hull" (which appears to be her married name) and that only a partnership with which she has been associated carries the name "Ann Hastings." She does not deny that she is the person who dealt with appellee and who made all the representations upon which he based his suit against her.

At trial in...