Minexa Arizona, Inc. v. Staubauch

• Citation: 667 S.W.2d 563
• Decision Date: 02 January 1984
• Docket Number: No. 05-83-00426-CV,05-83-00426-CV
• Parties: MINEXA ARIZONA, INC. & Frank Norton, Appellants, v. Rainer STAUBACH & Dieter Altman, Appellees.
• Court: Court of Appeals of Texas

Page 563

667 S.W.2d 563

MINEXA ARIZONA, INC. & Frank Norton, Appellants, v. Rainer STAUBACH & Dieter Altman, Appellees.

No. 05-83-00426-CV.

Court of Appeals of Texas,

Dallas.

Jan. 2, 1984.

Rehearing Denied March 20, 1984.

Dean Carlton, Ron V. Berkowitz, The Carlton Firm, Dallas, for appellants.

Michael Tibbals, Dallas, for appellees.

Before AKIN, ALLEN and STEWART, JJ.

AKIN, Justice.

This appeal is from an order overruling Minexa's special appearance under TEX.R.CIV.P. 120a and the granting of a temporary injunction against Minexa and Frank Norton. Staubach and Altman, who are citizens of West Germany, brought this suit as a class action against Minexa, an Arizona corporation, not authorized to do business in Texas, and Frank Norton, a purported vice president of the corporation. Staubach and Altman sought an accounting, alleging common law fraud, statutory fraud, and violation of section 33 of the Texas Securities Act. Minexa contends that a Texas court is without jurisdiction because Staubach and Altman failed to plead sufficient jurisdictional facts and because they failed to comply with the proper provision of Art. 2031b in serving process on Minexa. Minexa and Norton argue that the trial court erred in granting a temporary injunction because Staubach's and Altman's pleadings "fail to support the granting of injunctive relief." Minexa and Norton also contend that the injunction granted is impermissibly broad. Because we disagree with the contentions of Minexa and Norton, we affirm the judgment of the trial court.

We address first Minexa's contention that the court is without personal jurisdiction of Minexa. In a special appearance under Rule 120a, defendant has the burden to prove that it is not amenable to the jurisdiction of a Texas court. T.M. Productions v. Blue Mountain, 623 S.W.2d 427, 430 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.). However, this burden has been eroded by a rule, the soundness of which we doubt, which imposes upon the plaintiff, the duty "to allege the existence of the conditions which ... are a prerequisite to the acquisition of personam jurisdiction by substituted service," even though the defendant makes a special appearance. Gathers v. Walpace Co., Inc., 544 S.W.2d 169, 170 (Tex.Civ.App.--Beaumont 1976, writ ref'd n.r.e.). Because the pleadings in this case allege sufficient jurisdictional facts under Article 2031b, the Gathers rule is met.

In determining the sufficiency of the plaintiff's jurisdictional allegation, we must review the plaintiff's original petition and supplemental petitions. The basic jurisdictional allegations of Staubach and Altman are found in the plaintiff's third supplemental petition, as follows:

Plaintiffs would show that defendant Minexa Arizona, Inc. is an Arizona corporation, which does not have a certificate of authority to transact business in the State of Texas, but which nevertheless has been and is engaged in business in the State of Texas and which has and does maintain an office and its principal place of business at 6517 Hillcrest Avenue, Dallas, Texas. Plaintiffs would further show that Defendant Frank Norton has been at all times relevant hereto the person in charge of Defendant Minexa's business and has been at all times relevant hereto the Vice President of Minexa. Plaintiffs would further show that Defendant Minexa has been properly served with process by virtue of service upon Frank Norton pursuant to Article 2031(b); Section 2, V. A.T.C.S. and Plaintiff's mailing via certified mail a copy of the process to the actual principal place of business of Minex and to the alleged principal place of business of Minexa. Further, service of process upon the vice president of a corporation having its principal place of business in Texas is sufficient without the necessity for compliance with Article 2031(b). [Emphasis added].

Minexa was alleged to be a mineral exploration company. In their original petition, Staubach and Altman pleaded that their cause of action arose over money invested with Minexa which had been solicited through two prospectuses distributed in Germany. The cause of action was predicated upon the misuse of solicited funds by Minexa and its officers and upon misrepresentations made by Minexa in the prospectuses. Copies of the prospectuses, both in their original form in German and in English translation, are attached to the plaintiff's original petition. The petition alleges, and the prospectuses confirm, that the funds solicited were to be paid into a trust account at Republic National Bank in Dallas. Additionally, these prospectuses listed the address of Minexa Arizona as being in the Hillcrest Bank Building in Dallas, Texas.

Staubach and Altman have pleaded sufficient jurisdictional facts to meet their burden of pleading in the special appearance context as held in Gathers. Since Minexa was a foreign corporation not registered to do business in Texas, Minexa contends that section 3 of TEX.REV.CIV.STAT.ANN. art. 2031b (Vernon 1964) required Staubach and Altman to serve process on Minexa by serving the Secretary of State. However, we conclude that service of process on the Secretary of State is unnecessary because section 2 of article 2031b applies to Minexa because Minexa maintains a regular place of business in Texas. Section 2 provides:

When any foreign corporation, ... though not required by any Statute of this State to designate or maintain an agent, shall engage in business in this State, in any action in which such corporation, ... is a party or is to be made a party arising out of such business, service may be made by serving a copy of the process with the person who, at the time of the service, is in charge of any business in which the defendant or defendants are engaged in this State, provided a copy of such process, together with notice of such service upon such person in charge of such business shall forthwith be sent to the defendant or to the defendant's principal place of business by registered mail, return receipt requested.

Staubach's and Altman's pleadings allege that Minexa did business by maintaining its principal place of business in Texas. Their petition also alleges that the person served, Norton, was in charge of the business. Although Staubach and Altman have not pleaded in the precise language of the statute that the action arose from the business in which Minexa engaged in Texas, this allegation is clearly implied by a reading of the pleadings as a whole. In this respect, Staubach and Altman pleaded that the prospectuses listed the office in Dallas and their funds were sent to the Dallas office and deposited in Minexa's bank account in Dallas. Thus, the obvious conclusion is that Minexa was using its Dallas office to solicit and to maintain funds to be used in its exploration operation in Arizona. Consequently, the suit arose out of business transacted in Dallas. Unless we are to return to the traps of antiquated form pleading, Staubach's and Altman's pleadings are sufficient to give Minexa notice that it is being sued in a Texas Court under section 2 of article 2031b.

Finally, Staubach and Altman allege that a copy of the citation was served on Norton, a vice president in charge of the Dallas office, together with notice of such service, was forwarded to Minexa's "alleged place of business." This pleading is sufficient to show that Altman and Staubach complied with service of process as required by the statute. Thus, we hold that Staubach and Altman's pleadings subject Minexa to service of process under ...