Ramirez v. Lagunes

• Decision Date: 29 June 1990
• Docket Number: No. 13-89-117-CV,13-89-117-CV
• Citation: 794 S.W.2d 501
• Parties: Ana Marcela Pasquel RAMIREZ (Formerly Known as Ana Marcela Pasquel De Zurita), Appellant, v. Juan Zurita LAGUNES, Appellee.
• Court: Texas Court of Appeals

Page 501

794 S.W.2d 501

Ana Marcela Pasquel RAMIREZ (Formerly Known as Ana Marcela Pasquel De Zurita), Appellant, v. Juan Zurita LAGUNES, Appellee.

No. 13-89-117-CV.

Court of Appeals of Texas Corpus Christi.

June 29, 1990.

Robert Whittington, Brian G. Janis, Sanchez, Whittington & Sanchez, Brownsville, for appellant.

David C. Garza, Garza & Garza, Brownsville, for appellee.

Before NYE, C.J., and SEERDEN and KEYS, JJ.

OPINION

NYE, Chief Justice.

Appellant and appellee are citizens of Mexico. The trial court denied appellant's Bill of Discovery suit for the disclosure of appellee's financial information in certain Texas financial institutions and granted appellee's Motion for Protective Order and/or to Quash prohibiting the release of the requested financial information. Appellant brings six points of error. We affirm.

Appellant, Ana Pasquel Ramirez (Pasquel), and appellee, Juan Zurita Lagunes (Zurita), were divorced in May, 1986, in a Mexican divorce proceeding. Both parties are and have always been citizens of the Republic of Mexico. Furthermore, both parties have always been domiciled in Mexico, where Zurita is an attorney and Pasquel is a criminal court judge. The Mexican divorce decree withheld division of the community property estate for a later time.

In 1987, Pasquel filed a petition for Bill of Discovery naming Texas Commerce Bank--McAllen, Texas Commerce Bank--Brownsville, and Merrill Lynch, Pierce, Fenner, & Smith, Inc., as defendants. The purpose of this suit was to determine the nature and extent of the Texas accounts opened in Zurita's name. Pasquel alleged that these accounts, opened during the Pasquel-Zurita marriage, might possibly contain marital assets. She sought disclosure by the financial institutions and investment firm of the records for the years 1974 to 1987 of all financial and investment accounts which were in Zurita's name. Pasquel also provided the court with Letters Rogatory issued by the Mexican divorce court requesting the release of the financial records.

The defendant banks pleaded that the cause of action be abated until the court determined whether Zurita, the real party in interest in the Bill of Discovery suit, should be joined as a party and that Pasquel's compliance with the provisions of Tex.Rev.Civ.Stat.Ann. art. 342-705 (Vernon 1988 and Supp.1990) be contingent to their disclosure of the desired information. Merrill Lynch responded with an affidavit stating that Zurita had no account with said firm. Initially, the trial court denied the plea in abatement and ordered that the defendant banks inform Zurita of the trial court's order to furnish the requested financial information to the High Court of Justice of the Federal District of Mexico, 11th Court of Domestic Relations. The court also held that should Zurita file an appearance and an objection within the specified time, the defendant banks must produce the information for an in camera inspection prior to any disclosure to the Mexican court.

Thereafter, Zurita filed a special appearance wherein he alleged that the trial court lacked jurisdiction over his person, property or bank records, that Pasquel did not comply with the requirements of 28 U.S.C. §§ 1781 (Supp.1988), 1782 (1966) regarding the issuance of Letters Rogatory and that those Letters were subsequently recalled by the divorce court, and that the information sought through the Bill of Discovery could not be used by the Mexican court. These allegations were supported by an affidavit from a certified United States federal court interpreter who summarized the contents of three documents written in Spanish and filed in this suit. The first document was a letter dated March 26, 1987, from Jose Luis Rosas Rodriguez, Director of Contentious Legal Affairs of the Foreign Relations Ministry of the Republic of Mexico, stating that "for the reasons set forth in the proceedings, the Letters Rogatory had been returned without being honored." The second document was a letter dated January 29, 1987, from Ernesto Velarde, a Mexican attorney representing Pasquel, to the Mexican Consul in Brownsville, Texas. This letter requested that the Consul send the Letters Rogatory to the Texas law offices in which Velarde practiced because Pasquel had retained Velarde's firm to present the Bill of Discovery suit against the banks identified above even though it was not possible to honor the Letters Rogatory. The third document was the Mexican Decree of Divorce, dated May 9, 1986, which dissolved the parties' marriage and community property regime, but reserved the partition and distribution of the community property for a later date.

Pasquel amended her petition to name Zurita as a party. Zurita filed a second special appearance objecting to the jurisdiction of the Texas court. The trial court sustained the second special appearance, dismissed the cause for want of jurisdiction, and ordered Zurita to specially appear for the purpose of objecting to the release or disclosure of his financial records.

Pursuant to the special appearance order, Zurita filed a motion to quash and/or motion for protective order citing the provisions of Article 342-705 and the information contained in documents filed with the court to support his position to bar the disclosure of his financial records. After hearing both parties' arguments the trial court rendered its final judgment by granting Zurita's motion to quash and/or for protective order. No findings of fact and conclusions of law were requested and none were filed by the trial court.

By her fourth point of error, Pasquel alleges that the District Court erred in allowing Zurita to specially appear for the purpose of presenting evidence to support the dismissal of the Bill of Discovery. Specifically, she asserts that the trial court had in rem jurisdiction because the Zurita bank accounts were located within Texas; thus, the special appearance was improperly granted.

The United States Supreme court recently held in Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683 (1977), that all assertions of state jurisdiction, including in rem and quasi in rem actions, must be evaluated according to the "minimum contacts" standard set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. Thus, the Shaffer court abolished the general rule that mere presence of property within the forum state was sufficient to establish jurisdiction in rem by finding that such a rationale violated the due process clause of the United States Constitution.

In accordance with the federal standard, the Texas Supreme Court clarified its formula for establishing in personam jurisdiction in Schlobohm v. Schapiro, 33 Tex.Sup.Ct.J. 222, 784 S.W.2d 355, 358 (1990), stating:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state;

(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 forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

See also Southern Clay Prod., Inc. v. Guardian Royal Exch. Assurance, Ltd., 762 S.W.2d 927, 930 (Tex.App.--Corpus Christi 1988, writ granted); Perez Bustillo v. Louisiana, 718 S.W.2d 844, 846 (Tex.App.--Corpus Christi 1986, no writ). Because of the Shaffer decision, these provisions also apply to the determination of a state's exercise of in rem and quasi in rem jurisdiction.

In the present case, merely locating monies in a Texas bank account did not invoke the court's jurisdiction because Pasquel did not establish that the cause of action arose from the opening of those accounts nor did she establish that Zurita's contacts with Texas were continuing and systematic. See Texas Commerce Bank Nat'l Ass'n v. Interpol '80 Ltd. Partnership, 703 S.W.2d 765, 771 (Tex.App.--Corpus Christi 1985, no writ). Additionally, Zurita filed an affidavit from a Mexican attorney which stated that, should the Texas court grant the discovery of the bank records, the information derived from those records could not be used by the Mexican divorce court for the division of the community property. Pasquel did not allege or attempt to establish that by opening the bank account Zurita violated Texas law or Mexican law. Furthermore, Pasquel did not establish that equity required that she be allowed to discover the records of Zurita's accounts. Our traditional notions of fair play and substantial justice are not served by allowing discovery of one's records when there is no showing of wrongdoing or that the information can be used in the alleged foreign litigation. Furthermore, as discussed below, we do not see that due process is served when a foreign defendant must submit to the court's jurisdiction solely for the purpose of objecting to the failure of a plaintiff to properly follow the provisions of a procedural statute. The trial court did not err by finding that it lacked both in personam and in rem jurisdiction over Zurita and his Texas bank records. Point of error number four is overruled.

By her sixth point of error, Pasquel asserts that the trial court erred in dismissing her bill of discovery proceeding on the basis of invasion of privacy or admissibility, or other principles of law. By her first point of error, Pasquel asserts that the trial court erred by dismissing the Bill of Discovery proceeding because such a proceeding is an allowable ancillary...