Runnells v. Firestone

• Decision Date: 04 February 1988
• Docket Number: No. B14-87-350-CV,B14-87-350-CV
• Citation: 746 S.W.2d 845
• Parties: Nancy Morgan RUNNELLS, Ind. and as Legal Guardian of David Morgan Firestone, Jr., Appellant, v. David Morgan FIRESTONE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 845

746 S.W.2d 845

Nancy Morgan RUNNELLS, Ind. and as Legal Guardian of David Morgan Firestone, Jr., Appellant, v. David Morgan FIRESTONE, Appellee.

No. B14-87-350-CV.

Court of Appeals of Texas Houston (14th Dist.).

Feb. 4, 1988.

Rehearing Denied March 3, 1988.

Eugene A. Cook, JoAnn Storey, Richard A. Sheehy, Houston, for appellant.

Robert J. Piro, Pamela E. George, Houston, for appellee.

Before PAUL PRESSLER, MURPHY and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Nancy Morgan Runnells, plaintiff below, appeals from an order of the trial court which sustained the special appearance of appellee, David Morgan Firestone [hereinafter "Firestone"], her former husband. In two points of error she argues that because Texas may properly assert in personam jurisdiction over Firestone, the trial court erred in sustaining his special appearance and ordering her case dismissed. Firestone raises a cross-point and seeks damages pursuant to Tex.R.App.P. 84. We affirm the judgment of the trial court and deny Firestone's request.

Appellant filed suit individually and as legal guardian for David Morgan Firestone, Jr. [hereinafter "David"]. David is now 29 years old, has never been married, and has been adjudicated an incompetent since 1982. Appellant's Original Petition sounded in contract and tort. She alleged Texas jurisdiction by invoking the "doing business" clause of former article 2031b, now codified at Tex.Civ.Prac. & Rem.Code § 17.042 (Vernon 1986) [hereinafter " § 17.042"]. She based her contract claim on an alleged agreement by Mr. Firestone to pay one half of David's medical expenses. Her tort claim asserted that Firestone breached a statutory duty of support allegedly imposed by Tex.Prob.Code Ann. § 423 (Vernon 1980). She sought damages, punitive damages, attorney's fees, and requested the court to award her a substantial sum to be held in trust for David's medical expenses. After appellant served Firestone through the Texas Secretary of State, he filed a special appearance motion pursuant to Tex.R.Civ.P. 120a, which appellant opposed. The trial court then held a hearing at which both parties testified and presented evidence addressing the validity of a Texas court's asserting personal jurisdiction over Firestone.

Appellant has been a Texas resident since 1960. She moved here shortly after a 1960 Florida divorce decree terminated her marriage to Firestone and awarded her custody of their three children, including David. Appellant remarried in 1967. Firestone has never lived in Texas. He moved to Canada in 1966 and has been a Canadian citizen since 1971. It is undisputed that David is a Texas resident.

At the time of the special appearance hearing, David had resided in Maryland at the Sheppard and Enoch Pratt Hospital since June of 1984. David has had an extensive and steadily worsening history of treatment for mental disorders, which, his mother claims, began in childhood. He has been hospitalized at least fourteen times in Texas and several other states for treatment of those disorders. Appellant testified that she currently pays David's expenses that are not covered by insurance, that David may require treatment indefinitely, and that his current medical expenses, which amount to approximately $10,000 per month, will probably increase.

The trial court heard background testimony from Firestone concerning the terms of the divorce decree and agreements incident to the divorce decree, which required him to pay appellant $65,000 per year for twenty-five years, or until the end of 1984, and also required him to provide medical insurance until that time. ¹ Firestone stated he met the $65,000 per year obligation partly by setting up a trust with appellant as income beneficiary, and partly through his own funds. Appellant acknowledged that Firestone satisfied his annual $65,000 obligation from those two sources. Firestone stated the trust is now worth approximately $500,000 and that appellant continues to receive the income from the trust, which varies from $30,000 to $40,000 per year. Appellant conceded that Firestone sent David a $150 per month allowance.

During the hearing, appellant and Firestone vigorously disputed the outcome of a meeting which took place in Ontario, Canada in August 1983: appellant claimed that Firestone agreed at that time to pay one-half of David's medical expenses; Firestone denied any such agreement.

At the close of the hearing the trial court took the case under advisement. It later entered an order which granted Firestone's special appearance and dismissed the case without entering findings of fact or conclusions of law. Neither party requested findings of fact or conclusions of law pursuant to Tex.R.Civ.P. 296, although appellant did file a statement of facts in this court. As a result, we may infer all findings necessary to sustain the trial court's decision, provided they have evidentiary support in the record. See In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984) (per curiam); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980) (per curiam); Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.). In addition, we may consequently uphold the trial court's decision to deny jurisdiction on any legal theory supported by the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Standard Savings Ass'n v. Cromwell, 714 S.W.2d 49, 51 (Tex.App.--Houston [14th Dist.] 1986, no writ).

In her first point of error appellant argues that her non-resident former husband did business in Texas within the meaning of either the contract or tort subsections of § 17.042 of the Civil Practice & Remedies Code, § 17.042(1) & (2), respectively. She maintains that because he did business in Texas, this state may properly exercise long arm in personam jurisdiction over him, and that the trial court consequently erred in granting his special appearance and dismissing her case.

By entering a special appearance pursuant to Tex.R.Civ.P. 120a, a non-resident bears the burden of proof to show his lack of amenability to long-arm process, which means that he must show that Texas courts cannot validly obtain jurisdiction over him or his property pursuant to the Texas and federal constitutions and the applicable Texas statutes. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202-03 (Tex.1985) (per curiam). The trial court's threshold inquiry is whether Texas law provides jurisdiction. Texas Commerce Bank National Ass'n v. Interpol '80, Ltd., 703 S.W.2d 765, 768 (Tex.App.--Corpus Christi 1985, no writ). See also, U-Anchor Advertising Co. 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) [where the Texas Supreme Court reiterated the three-prong test it propounded in O'Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966), the first prong of which requires the non-resident to have purposefully performed some act in Texas] ².

We first address a sub-point to appellant's first point of error: her contention that Firestone did business in Texas within the meaning of § 17.042(1) by contracting with her to share the burden of David's medical expenses. In briefing this sub-point, appellant points to evidence supporting her contract jurisdictional allegations before the trial court, and claims that evidence mandates reversal.

Notwithstanding the lack of finding of fact and conclusions of law in the instant case, we rely on Carbonit Houston, Inc. v. Exchange Bank, 628 S.W.2d 826, 829 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.), where this court construed similarly phrased points of error as challenges to the sufficiency of the evidence to support the trial court's order. We conclude that appellant has also challenged the sufficiency of the evidence supporting the trial court's order in the instant case. This court's construction of the points of error here and in Carbonit is also consistent with Tex.R.App.P. 74(p) and Pool v. Ford Motor Co., 715 S.W.2d 629, 632-33 (Tex.1986) (opinion on rehearing), which require us to liberally construe points of error.

In a case such as this where there is no actual contract in evidence, and one party attests to a contractual agreement while the other vigorously denies any meeting of the minds, determination of the existence of a contract is a question of fact. See Haws & Garrett General Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 610 (Tex.1972); Industrial Disposal Supply Co., Inc. v. Perryman Bros. Trash Service, Inc., 664 S.W.2d 756, 765 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.). Therefore, in order to determine whether long-arm jurisdiction pursuant to § 17.042(1) existed, it was necessary for the trial court to resolve the threshold fact issue of whether the parties entered into a contract. In briefing her point of error appellant does not argue that "no evidence" supports the trial court's decision. Rather, she contends that her view of the evidence should control. We conclude that appellant's § 17.042(1) subpoint challenges the factual sufficiency of the evidence.

Pursuant to Carbonit, this court must review all jurisdictional evidence before the trial court, 628 S.W.2d at 829. Carbonit is thus in accord with In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) (per curiam), which requires us to review factual sufficiency challenges by considering and weighing all the evidence, not only evidence which supports the trial court's findings, but also that which tends to contradict them. After evaluating the evidence, we may reverse the decision of the trial court only if its findings are so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King's Estate, 244 S.W.2d at 661.

Although we may infer findings, Motyka, 610 S.W.2d at 736, and uphold the lower court's decision on any theory supported by the evidence, Lassiter, 559 S.W.2d at 358, appellant may nonetheless...