Laykin v. McFall

• Decision Date: 28 April 1992
• Docket Number: No. 07-91-0276-CV,07-91-0276-CV
• Citation: 830 S.W.2d 266
• Parties: Sol W. LAYKIN, Relator, v. John R. McFALL, Judge, 237th District Court, Lubbock County, Respondent.
• Court: Texas Court of Appeals

Page 266

830 S.W.2d 266

Sol W. LAYKIN, Relator, v. John R. McFALL, Judge, 237th District Court, Lubbock County Respondent.

No. 07-91-0276-CV.

Court of Appeals of Texas Amarillo.

April 28, 1992.

McWhorter, Cobb & Johnson, Brian P. Quinn and Gary R. Terrell, Lubbock, for relator.

Law Offices of Jack McClendon, Jack McClendon and Greg Teeter, Lubbock, for respondent.

Before DODSON, BOYD and POFF, JJ.

BOYD, Justice.

Relator Sol W. Laykin brings this petition seeking writ of mandamus directed to the Honorable John R. McFall, respondent. This proceeding arises from a suit against relator by Jane Livermore seeking recovery for conversion, fraud and deceptive trade practices. Relator, a California resident, filed a special appearance, contesting the Texas court's jurisdiction over him. Respondent, the trial judge, overruled relator's special appearance, finding the court did have jurisdiction over him.

Parenthetically, while neither respondent nor the real party at interest, Livermore, contests the right of relator to test respondent's action by this mandamus proceeding, a proper disposition of this proceeding requires us to determine whether the use of that vehicle is proper in this case. We note there is relevant precedent holding that a writ of mandamus may be sought when a special appearance is overruled. United Mexican States v. Ashley, 556 S.W.2d 784, 785 (Tex.1977); Hutchings v. Biery, 723 S.W.2d 347, 350 (Tex.App.--San Antonio 1987, no writ). ¹ However, the viability of that precedent in the instant case requires us to examine closely the recent seminal decision of our Supreme Court in Walker v. Packer, 827 S.W.2d 833 (1992). In that case, and as relevant here, the Court held that the propriety of a trial court refusal to accede to discovery requests might not be tested by mandamus, but, since the refusal could be tested on appeal, mandamus was not available. In the course of its holding, the Court conducted an extensive review of prior holdings indicating that mandamus was available in such instances. In doing so, it reiterated the long standing rule that mandamus would not lie where there is an adequate remedy by appeal and concluded that "an appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ." Id. at 474, 827 S.W.2d at 842. In reaching that conclusion, the Court specifically disapproved cases which, it observed, had not adequately considered the above rule, and applied a more lenient standard justifying mandamus review whenever an appeal "would arguably involve more cost or delay than mandamus." Id.

However, in its discussion, the Court noted even in discovery cases there were instances where a party might not have an adequate remedy by appeal. One such instance, it commented, would be "where a discovery order compels the production of patently irrelevant or duplicative documents, such that it clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party." Id. at 475, 827 S.W.2d at 843.

We believe the erroneous overruling of a special appearance is analogous to the above situation described by the Supreme Court. When a nonresident's special appearance is erroneously overruled, the burden on the nonresident is great; he must go through an entire trial in order to have the action dismissed on appeal. Furthermore, the burden is far out of proportion to any benefit that may obtain to the other party. In fact, there is no benefit to the other party in having to go through the expense and delay of an entire trial when the action will be dismissed on appeal with the result that the trial was an exercise in futility. That being so, the burden is heavy on both parties.

We believe the decisions in United Mexican States and Hutchings in holding that a writ of mandamus may be issued to correct an erroneous overruling of a special appearance constitute viable precedent in this case. Thus, we hold that relator is entitled to seek mandamus in the instant proceeding.

It is well established that, to be entitled to mandamus, a relator must establish a clear legal right to the issuance of the writ. King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 336 (1956). In this cause, relator requests that the trial judge be directed to set aside his order overruling the special appearance and enter an order granting his special appearance dismissing the underlying suit. Alternatively, relator requests that this court reverse the trial court's order and dismiss the suit for lack of personal jurisdiction.

The suit against relator arose from a transaction in which Livermore, a Texas resident, telephonically contacted relator, a California resident, and requested that he sell a ring for her. They agreed that the ring would be sent to relator and the proceeds, less a commission for relator, would be sent to Livermore in Texas. If relator was unable to sell the ring, it would be returned to Texas.

Livermore sent the ring to relator in California. However, before relator could find a buyer for the ring, Livermore found one in Texas. Livermore requested that relator return the ring, but he refused to do so and attempted to negotiate a purchase of the ring for himself. In doing so, relator sent two letters to Texas (one to Livermore and one to her attorney) and, Livermore alleged, relator made two phone calls to her in Texas. During this time, Livermore repeatedly demanded either return of the ring or payment of the amount she requested.

Prior to the suit, relator had never owned any real or personal property in Texas, never solicited any business in Texas, nor ever visited Texas. While relator has had up to twelve customers from Texas, all of the sales to them occurred in states other than Texas.

In U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978), the Court held that the Texas long arm statute is limited only by the constitutional limitations of due process. See also Hoppenfeld v. Crook, 498 S.W.2d 52, 56 (Tex.Civ.App.--Austin 1973, writ ref'd n.r.e.). The U-Anchor Court went on to say that such a construction is desirable in that it allows courts to focus on the constitutional limitations of due process rather than engaging in technical and abstruse attempts to define the wording of the long arm statute. See U-Anchor, 553 S.W.2d at 762; Hoppenfeld, 498 S.W.2d at 56. Indeed, in Helicopteros Nacionales v. Hall, 466 U.S. 408, 413, 104 S.Ct. 1868, 1871, 80 L.Ed.2d 404, 410 (1984), which involved a question of the right of Texas to exercise in personam jurisdiction over a nonresident, the Supreme Court noted and accepted the holding of the U-Anchor Court that the Texas long arm statute reaches as far as due process permits, with the comment, "Thus, the only question remaining for the court to decide was whether it was consistent with the Due Process Clause for Texas courts to assert in personam jurisdiction over Helicol."

For a Texas court to exercise jurisdiction over a nonresident in a manner consistent with constitutional guarantees of due process, three requirements must be met:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in Texas.

(2) The cause of action must arise from, or be connected with, such act or transaction. Even if the cause of action does not arise from a specific contact, jurisdiction may be exercised if the defendant's contacts with Texas are continuing and systematic.

(3) The assumption of jurisdiction by the court must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in Texas, the relative convenience of the parties, the benefits and protection of the laws of Texas afforded the respective parties, and the basic equities of the situation.

Schlobohm v. Schapiro, 784 S.W.2d 355, 356-58 (Tex.1990).

In the Schlobohm case, the Court cautioned that these elements are not to be mechanically applied, but are rather to provide a checklist to help ensure that all aspects of the necessary due process jurisdictional analysis are considered. Id. at 358.

The first part of the Texas formula regards the issue of whether the defendant's activities, regardless of their volume, justify the conclusion that he purposefully directed his activities into Texas such that he should have reasonably anticipated being called into a Texas court. Id. at 359.

The mere fact that relator had customers who came to him from Texas and that Livermore's contact with him originated from Texas is not sufficient to justify the required conclusion. Since the determination of the issue requires a focus upon the activities of the defendant, the activities of others cannot support a determination of the requisite conclusion that defendant purposefully directed his activities into Texas in such a manner that he should have reasonably anticipated being called into a Texas court. See Schlobohm v. Schapiro, 784 S.W.2d 355; U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760.

Relator's agreement to either send the sale proceeds of the ring or to send the ring back to Texas, even coupled with the two letters and two phone calls to Texas, do not amount to the required purposeful invocation of the benefits and protections of Texas law. See U-Anchor Advertising Inc. v. Burt, 553 S.W.2d 760. Indeed, relator did nothing to indicate or support an inference of any purpose on his part to exercise the privilege of conducting activities in Texas.

In Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), the United States Supreme Court had occasion to explore in some depth the requisites to maintain jurisdiction over a non-resident. In that case, the Court found that the non-resident petitioners' conduct gave California jurisdiction over...