NCNB Texas Nat. Bank v. Anderson

• Decision Date: 10 July 1991
• Docket Number: No. 04-90-00718-CV,04-90-00718-CV
• Citation: 812 S.W.2d 441
• Parties: NCNB TEXAS NATIONAL BANK, Appellant, v. Mark D. ANDERSON, Appellee.
• Court: Texas Court of Appeals

Page 441

812 S.W.2d 441

NCNB TEXAS NATIONAL BANK, Appellant, v. Mark D. ANDERSON, Appellee.

No. 04-90-00718-CV.

Court of Appeals of Texas,

San Antonio.

July 10, 1991.

Paul T. Curl, Pape, Murray, McClenahan & Sparr, Inc., San Antonio, for appellant.

Thomas M. Thurmond, Norman L. Paul, Jr., Thurmond & Thurman, San Antonio, for appellee.

Before BUTTS, CHAPA and BIERY, JJ.

ON APPELLANT'S MOTION FOR REHEARING

CHAPA, Justice.

The motion for rehearing is denied, the opinion of this court delivered May 29, 1991 is withdrawn, and this opinion is substituted in its place.

This suit involves the collection of one of several identical promissory notes executed by appellee, Mark D. Anderson, a resident of California. After service, appellee filed a plea to the jurisdiction, which the trial judge sustained. A severance was granted, and this appeal was perfected.

In a single point of error, appellant asserts that the trial court erred in sustaining appellee's plea to the jurisdiction.

Without citing any authority, appellant initially contends that, because the 1990 amendment to TEX.R.CIV.P. 120a "makes a hearing on a plea to the jurisdiction similar to a hearing on a motion for summary judgment", the summary judgment standard of review should be applied to this appeal. We disagree.

Unlike a summary judgment, amended rule 120a(3) of the TEX.R.CIV.P. provides that "[t]he court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony."

Further, in reviewing summary judgment evidence, it is well established that sworn pleadings and denials to requests for admissions are not summary judgment evidence in Texas. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980). As such, a motion for summary judgment is a pleading and may not be considered as summary judgment evidence, Kendall v. Whataburger, Inc., 759 S.W.2d 751, 754 (Tex.App.--Houston [1st Dist.] 1988, no writ), nor is a response to summary judgment competent summary judgment evidence. Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 264 (Tex.App.--Fort Worth 1986, no writ). However, affidavits, depositions, interrogatories, and admissions are proper summary judgment evidence when referred to or incorporated in the motion for summary judgment, Stewart v. U.S. Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.--Houston [1st Dist.] 1985, no writ), citing First Fed. Sav. & Loan Ass'n of San Antonio v. Bustamante, 609 S.W.2d 845, 849 (Tex.Civ.App.--San Antonio 1980, no writ), but the trial court may not receive extrinsic evidence, either oral or documentary, at the hearing on the motion for summary judgment. State v. Easley, 404 S.W.2d 296, 297 (Tex.1966); Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 383 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.).

Another glaring difference between a summary judgment and a plea to the jurisdiction is that a summary judgment is a final judgment which disposes of all issues and causes of action specifically addressed in the motion; this is not true of a plea to the jurisdiction, which merely determines where the movant should be tried. Consequently, other than the fact that affidavits and stipulations may be considered in both summary judgment hearings and hearings on pleas to the jurisdiction, there is no real similarity between the two. Therefore, in the absence of authority, we fail to see any valid reason for applying summary judgment standards of review to appeals involving pleas to the jurisdiction.

Without advancing any argument or citing authority in its brief, or in any way "sufficiently direct[ing] the court's attention to the nature of the complaint made regarding each ... finding or legal conclusion", as required by TEX.R.APP.P. 74(d), appellant, in an unorthodox footnote pleads, as an alternative point of error, that should this court refuse to apply a summary judgment standard of review to this appeal, that we "construe this point of error as complaining that there is no evidence of Findings of Fact Nos. 4, 5, 6, and 7 and/or that these findings are against the great weight and preponderance of the evidence, and that Conclusions of Law Nos. 1-4 are erroneous." Although in clear violation of TEX.R.APP.P. 74, we will address the complaint to the extent that we understand it.

The challenged findings of fact are:

....

4. Any contacts the Defendant [appellee] had with the State of Texas were minimal.

5. All contacts that resulted in Defendant's purchase of a limited partnership interest in 201 Main Ltd. were the result of solicitations and negotiations all of which occurred in the state of California. In that regard, the Managing General Partner of 201 Main Limited had numerous and systematic contacts in California with the Defendant by mail and telephone and such contacts resulted in the Defendant's investment in the subject partnership and his execution of the demand promissory note in question.

6. The contacts made by the Managing General Partner with Defendant in the state of California reasonably led such Defendant to believe that any enforcement of an alleged debt obligation, executed by him, would be brought in his home state of California.

7. The Defendant never purposefully engaged in business in the State of Texas with the intent of invoking the rights and privileges afforded to residents of that state.

Generally, in considering a "no evidence" or legal sufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965).

In considering a factual sufficiency point, we may not substitute our judgment for that of the jury, but must assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (great weight and preponderance); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). "In considering an 'insufficient evidence' point, we must remain cognizant of the fact that it is for the jury, the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony." Texas Employers' Ins. Ass'n v. Jackson, 719 S.W.2d 245, 249-50 (Tex.App.--El Paso 1986, writ ref'd n.r.e.), citing Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 289 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.).

"Unless the trial court's findings are challenged by a point of error on appeal, they are binding upon the appellate court." Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.), citing Zelios v. City of Dallas, 568 S.W.2d 173, 175 (Tex.Civ.App.--Dallas 1978, writ ref'd n.r.e.). "The trial judge, as the trier of the fact, may draw reasonable inferences from the evidence, and his findings of fact may not be disregarded on appeal if the record contains some evidence of probative value from which these inferences may be drawn, or unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong." IFG Leasing Co. v. Ellis, 748 S.W.2d 564, 565-566 (Tex.App.--Houston [1st Dist.] 1988, no writ), citing Nicholas v. Crocker, 687 S.W.2d 365, 367 (Tex.App.--Tyler 1984, writ ref'd n.r.e.). "When findings of fact are filed and are unchallenged, ... they occupy the same position and are entitled to the same weight as the verdict of a jury." McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). "Thus, unless there is no evidence to support the finding or unless the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong, the appellate court may not set it aside." Valencia v. Garza, 765 S.W.2d 893, 896 (Tex.App.--San Antonio 1989, no writ), citing Corporate Personnel Consultants v. Wynn Oil Co., 543 S.W.2d 746, 748 (Tex.Civ.App.--Texarkana 1976, no writ).

The Texas Supreme Court has also held that:

In determining whether the trial court's findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and the conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it.

Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.1963).

Appellant clearly fails to challenge the court's findings of fact nos. 1-3, and 8-17, which are, therefore, binding upon this court. Wade, 602 S.W.2d at 349. Thus, this court is bound by the trial court's findings that the special appearance was timely made to the entire proceeding; that appellee is not a resident of Texas and is not required to maintain, nor does he maintain, a registered agent for service in Texas; that appellee does not maintain a place of business in Texas, and has no employees, servants, or agents within the state; that all documents executed by appellee relating to the transaction in question were delivered to appellee by the partnership through the mail, were executed by the appellee in Los Angeles, California, and were mailed to the partnership's place of business in Houston, Texas; that as a limited partner...