COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-062-CV
SOUTHWEST AVIATION
SPECIALITIES, L.L.C. AND DAVID C.
GUZMAN, AN INDIVIDUAL APPELLANTS
V.
WILMINGTON AIR VENTURES IV,
INC. AND DELISA AIRCRAFT
MANAGEMENT, INC. APPELLEES
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In three issues, Appellants Southwest Aviation Specialties, LLC and David
C. Guzman appeal the denial of their special appearances and the evidentiary
rulings that the trial court made in support of that denial. We affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
This case involves a contract for aviation-related goods and services
between Southwest Aviation Specialities (“Southwest”) and Appellees
Wilmington Air Ventures IV, Inc. and Delisa Aircraft Management, Inc.
(collectively, “Wilmington”). Wilmington sued Southwest and Guzman,
Southwest’s general manager, both Oklahoma residents, for breach of contract
and deceptive trade practices, among other claims. Wilmington alleged in its
original petition that Southwest and Guzman “attempted to repair some of the
avionics work while [Wilmington’s aircraft] was at a maintenance facility in Fort
Worth, Texas, known as Phazar Flight Support.” Southwest and Guzman each
filed special appearances, which the trial court denied.
III. Special Appearances
In their first issue, Southwest and Guzman complain that the trial court
erred when it denied their special appearances, claiming that they negated all
bases for personal jurisdiction, specific and general. In their second issue, they
argue that the trial court erred when it overruled their objections to
Wilmington’s affidavits in opposition to the special appearances. And in their
third issue, Southwest and Guzman complain that the trial court erred when it
“deemed admitted” their objections and responses to Wilmington’s second
request for admissions.
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The trial court’s order denying Southwest’s and Guzman’s special
appearances noted that it granted all parties further time to file additional
pleadings and that, after notice to all parties “and upon considering the
Defendants’ Special Appearances, the response, the evidence, the pleadings
and the arguments of counsel, the Court is of the opinion that Defendants’
Special Appearances should be denied.” The record also includes a letter from
the trial court to the parties, dated the same day as the order and enclosed with
the order, stating, “The Defendants’ objections to the Plaintiffs’ Special
Appearance evidence are each denied.”
A. Standard of Review
Whether a trial court has personal jurisdiction over a defendant is a
question of law reviewed de novo. BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 793–94 (Tex. 2002); TravelJungle v. Am. Airlines, Inc., 212
S.W .3d 841, 845 (Tex. App.—Fort Worth 2006, no pet.); SITQ E.U., Inc. v.
Reata Rests., Inc., 111 S.W.3d 638, 644 (Tex. App.—Fort Worth 2003, pet.
denied). The plaintiff bears the initial burden of pleading sufficient allegations
to bring a nonresident defendant within the provisions of the Texas long-arm
statute. BMC Software, 83 S.W.3d at 793; TravelJungle, 212 S.W.3d at 845;
Reata, 111 S.W.3d at 644. Wilmington met its initial burden by asserting in its
original petition that Southwest and Guzman, Oklahoma residents, “engaged in
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business in Texas, a contract made the basis of this dispute was performed, in
part, in Texas, and the Defendants engaged in other wrongful acts in Texas.”
See Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 2008). A nonresident
defendant challenging a Texas court’s personal jurisdiction over it must then
negate all jurisdictional bases. BMC Software, 83 S.W.3d at 793;
TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at 644–45.
B. Deemed Admissions
Southwest and Guzman claim that their objections and responses to
Wilmington’s second set of requests for admissions were timely filed on
December 28, 2007, because they were “actually served” or they “actually
received” Wilmington’s second set of requests for admissions on November 29,
2007. Thus, they argue, the trial court should not have “deemed admitted”
Wilmington’s requests for admissions. 2
Rule 198.2(a) of the rules of civil procedure requires that a responding
party must serve a written response to requests for admissions on the
2
… Wilmington responds that Southwest and Guzman have waived this
alleged error because the trial court made no rulings and did not enter any order
with regard to the “deemed admissions.” However, when responses to
requests for admissions are not timely served, the requests are considered
admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(c).
Therefore, contrary to Wilmington’s position, the trial court did not have to
make a ruling or enter an order with regard to the alleged “deemed admissions.”
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requesting party “within 30 days after service of the request.” Tex. R. Civ. P.
198.2(a) (emphasis added). Service of requests for admissions falls under rule
21a. Tex. R. Civ. P. 21a; Etheredge v. Hidden Valley Airpark Ass’n, Inc., 169
S.W.3d 378, 381–83 (Tex. App.—Fort Worth 2005, pet. denied) (op. on
reh’g). Rule 21a provides that service by certified mail is complete upon
deposit of the document, enclosed in a postpaid, properly addressed wrapper,
in a post office or official depository under the care and custody of the United
States Postal Service. Tex. R. Civ. P. 21a; Wheeler v. Green, 157 S.W.3d 439,
441 (Tex. 2005) (explaining that the “mailbox rule,” rule 21a, deems requests
for admissions served when mailed by certified mail, not when received); see
also 2 David E. Keltner, Texas Practice Guide: Discovery, § 7:34 (2008) (“The
time for response begins ticking on the date requests are mailed (not on the
date of their receipt).”). Rule 21a also provides that “[w]henever a party has
the right or is required to do some act within a prescribed period after the
service of a notice or other paper upon him and the notice or paper is served
upon by mail . . . , three days shall be added to the prescribed period.” Tex.
R. Civ. P. 21a. Therefore, Southwest had thirty-three days from the date of
service to respond to Wilmington’s second set of requests for admissions.
Wilmington’s second set of requests for admissions was sent by certified
mail and bears a U.S. post office postmark of November 21, 2007. Therefore,
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Southwest’s responses were due thirty-three days later, on December 24,
2007. Tex. R. Civ. P. 21a. Southwest filed its responses on December 28,
2007.
Southwest and Guzman refer us to Etheredge and to Payton v. Ashton,
29 S.W.3d 896 (Tex. App.—Amarillo 2000, no pet.), for the proposition that
the date of “actual service” or “actual receipt” of the requests for admissions
on the responding party is the critical and dispositive date. Etheredge and
Payton both involved requests for admissions sent certified mail that were
returned “unclaimed.” Etheredge, 169 S.W.3d at 383–84; Payton, 29 S.W.3d
at 898. Here, in contrast, Southwest and Guzman admit that they actually
received the requests for admission, but they argue that because they received
the requests outside of the three days provided for in rule 21a, their responses
should not have been deemed admitted.
Southwest and Guzman refer to a footnote in Etheredge in which this
court stated that, on remand, rule 198.2 “will allow Etheredge thirty days to
respond upon receiving HVAA’s request for admissions unless HVAA
establishes that Etheredge has already received constructive notice of the
request.” 169 S.W.3d at 383 n.3 (emphasis added). However, within the
case’s context, this statement acted not to modify or expand rule 198.2’s
requirement of “within thirty days after service” or rule 21a’s definition of
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service by certified mail, but instead to establish that Etheredge actually had to
be served, as HVAA’s previous requests for admissions had been returned to
HVAA “unclaimed,” and Etheredge had therefore never received them. See id.
at 382–83. A party’s duty to respond is triggered upon receipt of the requests,
but that party also has a duty to note the date of service and to calculate the
due date of its responses from the date of service. See Cudd v. Hydrostatic
Transmission, Inc., 867 S.W.2d 101, 102–03 (Tex. App.—Corpus Christi
1993, no writ) (“The rules do not provide automatic tolling of the start date due
to tardy mail service.”).
Here, rules 21a and 198.3 were available to provide Southwest and
Guzman with a remedy. Rule 21a states:
Nothing herein shall preclude any party from offering proof that the
notice or instrument was not received, or, if service was by mail,
that it was not received within three days from the date of deposit
in a post office or official depository under the care and custody of
the United States Postal Service, and upon so finding, the court
may extend the time for taking the action required of such party or
grant such other relief as it deems just.
Tex. R. Civ. P. 21a (emphasis added). Rule 198.3 states that the trial court
may permit a party to withdraw an admission if the party shows good cause for
the withdrawal and the court finds that the party relying on the deemed
admissions will not be unduly prejudiced. Tex. R. Civ. P. 198.3; see also Renee
H. Tobias, Deemed Admissions: Tool, Trap or Both? 46 Baylor L. Rev. 709, 713
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(1994) (stating that a motion to extend time to respond, to prevent deemed
admissions, must be filed prior to the expiration of the original thirty-day period
because deemed admissions are automatic; if time has passed, then a motion
to withdraw deemed admissions must be filed).
Southwest and Guzman offered proof that the requests for admissions
were not received within three days from the date of deposit, and the trial court
granted both parties additional time to file “whatever supplemental pleading[s]
you want to file.” However, Southwest and Guzman failed to file a motion to
withdraw their admissions. Therefore, the deemed admissions relied upon by
Wilmington in its response to Southwest and Guzman’s special appearances
were never withdrawn. We overrule Southwest and Guzman’s third issue.
C. Personal Jurisdiction
Texas courts may exercise jurisdiction over a nonresident defendant only
if the exercise of jurisdiction is authorized by the Texas long-arm statute and
comports with state and federal constitutional guarantees of due process.
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574–75 (Tex. 2007);
BMC Software, 83 S.W.3d at 795. The federal due process test consists of
two parts: (1) whether the nonresident defendant purposely established
“minimum contacts” in the forum state; and (2) if so, whether the exercise of
personal jurisdiction comports with “fair play and substantial justice.” Burger
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King Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174, 2183–84
(1985); Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
815 S.W.2d 223, 230–31 (Tex. 1991). Minimum contacts are sufficient for
personal jurisdiction when the nonresident defendant purposefully avails itself
of the privilege of conducting activities within the forum state, thus invoking
the benefits and protections of its laws. See Hanson v. Denckla, 357 U.S.
235, 253, 78 S. Ct. 1228, 1240 (1958); Michiana Easy Livin' Country, Inc. v.
Holten, 168 S.W.3d 777, 784 (Tex. 2005).
A nonresident’s contacts with the forum state may give rise to either
specific or general jurisdiction. BMC Software, 83 S.W.3d at 795–96.
Specific jurisdiction exists where the defendant’s alleged liability stems from an
activity conducted within the forum state. Id. at 796. A Texas court may
assert specific jurisdiction over an out-of-state defendant if the defendant’s
contact with this state is purposeful and the injury arises from or relates to
those contacts. See Moki Mac, 221 S.W.3d at 572–73, 576 (considering, in
light of Michiana, the extent to which a claim must “arise from or relate to”
forum contacts to confer specific jurisdiction over a nonresident defendant).
This “purposeful availment” inquiry has three parts: (1) only the defendant’s
contacts with the forum are relevant, not the unilateral activity of another party
or a third person; (2) the contacts relied upon must be purposeful rather than
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random, fortuitous, or attenuated; and (3) the defendant must seek some
benefit, advantage, or profit by “availing” itself of the jurisdiction. Id. at 575;
Michiana, 168 S.W.3d at 784–85; see also World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980).
The following requests for admission were deemed admitted:
1. Admit that you traveled to Phazar at the Fort Worth Airport on
at least one occasion in connection with the Project,3 during the
relevant time frame.4
2. Admit that you were on board the Aircraft 5 during the time it
was at Phazar at the Fort Worth Airport during the relevant time
frame.
3
… The “Instructions/Definitions” section of Wilmington’s requests for
admissions defines “Project” as
the aircraft and avionics maintenance, goods, and services provided
by [Guzman and Southwest], including aircraft and avionics goods
and services required for the Aircraft to be modified and certificated
for operations requiring compliance with Reduced Vertical
Separation Minima (“RVSM”), the update to the Aircraft’s Flight
Management System (“FMS”), and the installation of a Terrain
Awareness and Warning System (“TAWS”).
4
… The “Instructions/Definitions” section defines “relevant time frame”
as “from the year 2003 to the present.”
5
… The “Instructions/Definitions” section defines “Aircraft” as “that
certain Gulfstream II multi-engine jet aircraft, registration number N4NR,
manufacturer’s serial number 225 and/or that certain aircraft made the basis
and subject of Plaintiff’s Petition, as amended, in this lawsuit.”
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3. Admit that you performed avionics and other system
troubleshooting on the Aircraft related to the Project while it was
located at the Fort Worth Airport, during the relevant time frame.
4. Admit that you met with representatives of Plaintiff at the Fort
Worth Airport during the relevant time frame.
5. Admit that you met with representatives of Phazar at the Fort
Worth Airport during the relevant time frame in connection with the
Aircraft and/or the Project.
6. Admit that your meetings with representatives of Plaintiff and of
Phazar at Phazar at the Fort Worth Airport were in connection with
problems that continued to exist in connection with the Project that
required correction, during the relevant time frame.
7. Admit that you attended meetings with Plaintiffs’
representatives at Phazar at the Fort Worth Airport from time to
time during the relevant time frame.
8. Admit that you attended a meeting with Plaintiffs’
representatives and with counsel for the Plaintiffs on November 30,
2005, at Phazar at the Fort Worth Airport.
9. Admit that the meeting you attended on November 30, 2005, at
Phazar at the Fort Worth Airport, was for the purpose, in part, of
discussing the Aircraft and the Project, with Plaintiffs’
representatives.
Although Southwest and Guzman claim that they committed no specific
or purposeful acts in Texas and that there is no evidence of their purposeful
availment through which they can be said to have sought a benefit in Texas,
their deemed admissions clearly provide a basis for the trial court to exercise
specific personal jurisdiction. Under Moki Mac, the deemed admissions above
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describe relevant contacts by Southwest and Guzman in Texas that were
purposeful rather than random, fortuitous, or attenuated. See 221 S.W.3d at
575. Furthermore, Southwest and Guzman never denied that they had a
contract with Wilmington involving the Aircraft or that they failed to seek a
benefit from performing the contract that, per the deemed admissions, involved
some performance in Texas. Therefore, sufficient contacts existed to give the
trial court specific personal jurisdiction over Southwest and Guzman. We
overrule Southwest and Guzman’s first issue.
IV. Conclusion
Having overruled Southwest and Guzman’s dispositive issues, we affirm
the trial court’s judgment. See Tex. R. App. P. 47.1.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
DELIVERED: November 20, 2008
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Southwest Aviation Specialties, L.L.C. and David C. Guzman, an Individual v. Wilmington Air Ventures IV, Inc. and Delisa Aircraft Management, Inc.
Combined Opinion