In re Estate of Davis

• Decision Date: 27 February 2007
• Docket Number: No. 06-06-00086-CV.,06-06-00086-CV.
• Citation: 216 S.W.3d 537
• Parties: In re ESTATE OF Emogene Bedingfield DAVIS, Deceased.
• Court: Texas Court of Appeals

216 S.W.3d 537

In re ESTATE OF Emogene Bedingfield DAVIS, Deceased.

No. 06-06-00086-CV.

Court of Appeals of Texas, Texarkana.

Submitted February 7, 2007.

Decided February 27, 2007.

John M. Stuckey, Jr., Newman, GA, pro se.

Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

John M. Stuckey, Jr., is the executor of Emogene Bedingfield Davis' estate. He collected and divided assets that he identified as being of her estate and evidently distributed a substantial portion. Norris Davis,¹ Emogene's husband, took umbrage about some of the collections, believing that some of the properties were his. Norris also died.

Emogene died July 14, 2000. An inventory and list of claims was filed August 30, 2001. It appears Stuckey filed a partial accounting October 7, 2003.

On February 27, 2004 (under the generic estate cause number), Diana and David Sewell (coexecutors of Norris' estate) filed a complaint against Stuckey for damages based on his malfeasance as executor of Emogene's estate — alleging that he took control of funds belonging at least in part to Norris, that he paid far too much in attorney's fees, that he did not distribute her estate as required by law, and that he failed to distribute to Norris the money he was due, but has distributed portions of the estate to other beneficiaries. In short, the Sewells alleged Stuckey was willfully refusing to do his job as executor. The action was titled against him as executor of the estate, but it is clear from the captions of the various documents, as well as from their contents, that the suit is against Stuckey, individually and as executor.

In response to that pleading, as part of his answer filed April 2, 2004, Stuckey alleged the state court had no personal jurisdiction over him — but did not request a hearing. On April 5, 2004, Stuckey filed a document removing the case to the United States District Court — originally in Georgia, which was transferred to Texas. Seventeen months later, the federal court remanded the action back to state court November 7, 2005.

It appears that, on January 12, 2006, the Sewells filed a motion for ruling on interim relief, which was granted May 16, 2006.

Between that filing and the order, Stuckey filed a document February 7, 2006, entitled as his "special appearance." He filed a second request for a ruling July 13, 2006. He asked the trial court to stay the underlying trial until he had an appealable ruling.

On July 19, 2006, the trial court denied his special appearance and granted the Sewells' motion for sanctions, finding the special appearance was groundless and brought in bad faith for harassment and delay. As an interlocutory ruling on a special appearance, the order was immediately appealable. TEX. CIV. PRAC. & REM. CODE ANN. art. 51.014 (Vernon Supp.2006).

Preliminary Issues

There are several matters to be resolved before addressing the merits. First, we have no reporter's record. However, that does not have the effect in this particular situation that it would in a normal appeal.

The Texas Supreme Court in Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777 (Tex.2005), concluded that, in a pretrial hearing context:

If the proceeding's nature, the trial court's order, the party's briefs, or other indications show that an evidentiary hearing took place in open court, then a complaining party must present a record of that hearing to establish harmful error. But otherwise, appellate courts should presume that pretrial hearings are nonevidentiary, and that the trial court considered only the evidence filed with the clerk.

Id. at 783 (footnotes omitted). The opinion makes it clear that a mere statement in the order that the court heard the evidence is insufficient to show that an evidentiary hearing occurred; thus, we must apply the presumption that the pretrial hearing was nonevidentiary and that the court considered only the evidence filed with the clerk. The lack of a reporter's record is not a consideration in this situation.

The second matter is the absence of findings of fact and conclusions of law. Davis complains because the court did not file findings of fact and conclusions of law despite his request. "Texas Rules of Civil Procedure 296 and 297 do not impose any duty on the trial court to file findings of fact and conclusions of law where there has been no trial, such as a special appearance that is subject to interlocutory appeal." Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 579 n. 5 (Tex.App.-Austin 2006, no pet.) (quoting Bruno's, Inc. v. Arty Imps., Inc., 119 S.W.3d 893, 897 n. 2 (Tex.App.-Dallas 2003, no pet.)); see TEX. R.APP. P. 28.1. Thus, no intrinsic error has been shown by the trial court's failure to file findings and conclusions.

Jurisdictional Requirements

Stuckey alleges that, since he is a nonresident of Texas, the County Court at Law for Bowie County does not have jurisdiction. A claim of special appearance under TEX.R. Civ. P. 120a is the procedural method used to avoid the jurisdiction of Texas courts as authorized under the Texas long-arm statute. The statute allows Texas courts jurisdiction over nonresident defendants doing business in Texas. TEX. CIV. PRAC. & REM.CODE ANN. § 17.042 (Vernon 1997). While the long-arm statute does enumerate certain examples of doing business, it does not provide an exclusive list. Id. ("In addition to other acts that may constitute doing business, a nonresident does business in this state if ...," then setting out three acts); see also BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002); Schlobohm v. Schapiro, 784 S.W.2d 355, 356-57 (Tex.1990). The statute is construed as extending Texas courts' jurisdiction over nonresident defendants as far as the federal constitutional requirement of due process permits. Marchand, 83 S.W.3d at 795.

For a Texas court to exercise personal jurisdiction over a nonresident, two conditions must be met: the Texas long-arm statute must authorize it, and it must be consistent with the due-process guarantees provided in our federal and state constitutions. Schlobohm, 784 S.W.2d at 356; Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex.App.-Austin 2005, no pet.). Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a nonresident established "minimum contacts" with Texas and maintenance of the suit does not offend traditional notions of fair play and substantial justice. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).

The fundamental purpose of the minimum-contacts analysis has been to protect the nonresident defendant from the unfair and unforeseen assertion of jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). This requires a determination of whether the nonresident defendant has purposely availed itself of the privilege of conducting activities within the forum state to invoke the benefits and protection of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The "purposeful availment" requirement guarantees that a nonresident defendant will not be compelled to defend a suit in a jurisdiction based solely on random, fortuitous, or attenuated contacts or the unilateral activity of another party or a third person. Id. at 475-76, 105 S.Ct. 2174; see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Nikolai v. Strate, 922 S.W.2d 229, 234 (Tex.App.-Fort Worth 1996, writ denied).

Nonresident defendants must have fair warning that particular activities may subject them to a foreign sovereign's jurisdiction. Rudzewicz, 471 U.S. at 474-75, 105 S.Ct. 2174. A nonresident defendant must therefore perform some overt act to subject himself or herself to the possibility of being compelled to defend a suit in a foreign court. Tuscano v. Osterberg, 82 S.W.3d 457, 466 (Tex.App.-El Paso 2002, no pet.). This "fair warning" requirement is satisfied if the defendant has "purposefully directed" his or her activities at residents of the forum and the litigation results from alleged injuries that "arise out of or relate to" those activities. Rudzewicz, 471 U.S. at 472, 105 S.Ct. 2174; Tuscano, 82 S.W.3d at 466.

Standards of Review

Whether a trial court has personal jurisdiction over a defendant is a question of law. Marchand, 83 S.W.3d at 793. The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the long-arm statute, while the defendant challenging a Texas court's personal jurisdiction over it must negate all jurisdictional bases. Id. "Personal jurisdiction exists if the nonresident defendant's minimum contacts give rise to either specific jurisdiction or general jurisdiction." Id. at 795.

We may review the trial court's resolution of disputed fact issues for legal and factual sufficiency under the same standards of review that we apply in reviewing a jury verdict. TravelJungle v. Am. Airlines, Inc., 212 S.W.3d 841 (Tex.App.-Fort Worth 2006, no pet. h.); Michel v. Rocket Eng'g Corp., 45 S.W.3d 658, 668 (Tex.App.-Fort Worth 2001, no pet.).

Personal Jurisdiction

There are two variations within the bounds of personal jurisdiction. Personal jurisdiction exists if the nonresident defendant's minimum contacts give rise to either specific or general jurisdiction. Marchand, 83 S.W.3d at 795; Schexnayder v. Daniels, 187 S.W.3d 238, 243 (Tex.App.-Texarkana 2006, pet. dism'd w.o.j.).

General jurisdiction exists when the defendant's contacts with Texas "are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state." Marchand, 83 S.W.3d at 796. This is described...