NO. 07-08-0462-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 11, 2009
______________________________
MEREDITH LEE WILKINS, SR., APPELLANT
V.
MEREDITH LEE WILKINS, JR. AND HEATHER WILKINS, APPELLEES
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 96,794-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Meredith Lee Wilkins, Sr. (father), an inmate of the Texas Department of Criminal
Justice appearing pro se, sued his son, Meredith Lee Wilkins, Jr. (son) and his son’s wife,
Heather Wilkins (daughter-in-law), for damages arising from their alleged breach of
fiduciary duty. Son and daughter-in-law, residents of Pennsylvania, made a special
appearance according to Rule of Civil Procedure 120a challenging the personal jurisdiction
of the trial court.1 The trial court sustained the special appearance and dismissed the
case. Father appeals through three issues. We will affirm the judgment of the trial court.
Background
In a petition made on unsworn declaration,2 father averred that son and daughter-
in-law breached an unspecified fiduciary duty arising from a power of attorney he executed
appointing son “to act as AGENT of [father] pertaining to financial matters, such as paying
bills, taxes, etc.” (capitalization in original). According to father, the actionable conduct of
son and daughter-in-law3 included son’s sale of father’s house, contrary to the intention of
father. There were also allegations son mismanaged the house prior to sale. A check
drawn on a Kentucky bank and representing proceeds from the sale of father’s house was
endorsed by son as father’s attorney-in-fact. Father alleged son and daughter-in-law
wrongfully used a portion of the proceeds for personal interests. He asserted son and
daughter-in-law made unauthorized withdrawals by check and ATM from his bank account.
Finally, father alleged son and daughter-in-law made unauthorized charges to father’s
credit card accounts.
1
Tex. R. Civ. P. 120a.
2
A jail or prison inmate may use an unsworn declaration in lieu of a verification or
affidavit. See Tex. Civ. Prac. & Rem. Code Ann. §§ 132.001-132.003 (Vernon 2005).
3
From his petition, it appears father alleges liability of daughter-in-law arising from
direct and conspiratorial acts. On the sufficiency of father’s petition, we express no opinion.
2
Son and daughter-in-law filed a Rule 120a motion. Attached to the pleading were
affidavits wherein son and daughter-in-law averred they were residents of Pennsylvania
and for the period 2003 to the date of their affidavits resided first in West Virginia, then in
Georgia, and finally in Pennsylvania. Son and daughter-in-law further averred that father’s
house was located in Kentucky and checks were written and credit card charges made in
West Virginia, Georgia, and Pennsylvania. Son stated he was a resident of West Virginia
when he became father’s attorney-in-fact and performed duties in that capacity from his
residence which was never in Texas. Son and daughter-in-law do not maintain a
registered agent in Texas and have no business in the state. They have no employees,
servants, or agents in Texas.
In two unsworn documents, father responded to the Rule 120a motion. He
contended son and daughter-in-law engaged in business in Texas by writing checks as his
agent on his account at a Texas bank.
The trial court sustained the special appearance of son and daughter-in-law and
dismissed the case. Although the order recites that all parties appeared in person, there
is no reporter’s record or other indication that the trial court conducted a hearing. Findings
of fact and conclusions of law were not requested nor were they filed by the trial court.
This appeal followed.
Analysis
Through his first issue father contends the trial court possessed personal jurisdiction
of son and daughter-in-law and through his third issue he asserts the Texas long-arm
3
statute applies to the case. We interpret these issues as a collective challenge of the trial
court’s ruling on the Rule 120a motion of son and daughter-in-law. See Tex. R. App. P.
38.9. We will discuss issues one and three jointly.
Whether a trial court has personal jurisdiction over a nonresident defendant is a
question of law. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790-91
(Tex. 2005); American Type Culture Collection v. Coleman, 83 S.W.3d 801, 805-06 (Tex.
2002); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). An
appellate court, therefore, reviews the trial court’s determination of a Rule 120a motion de
novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). However,
it is often necessary for the trial court to resolve questions of fact before deciding the
question of jurisdiction. Marchand, 83 S.W.3d at 794. If the trial court did not issue
findings of fact and conclusions of law supporting its order granting or denying a special
appearance, an appellate court will presume the trial court resolved all disputed facts in
favor of its judgment.4 See American Type Culture Collection, 83 S.W.3d at 806.
The plaintiff must allege facts that, if true, would make a nonresident defendant
subject to the personal jurisdiction of a Texas court. Paramount Pipe & Supply Co. v.
Muhr, 749 S.W.2d 491, 496 (Tex. 1988). Thus the initial burden is on the plaintiff to
sufficiently allege facts bringing the nonresident defendant within the Texas long-arm
4
When, as here, the trial court rules on a Rule 120a motion on submission and the
appellant files a clerk’s record, even in the absence of findings of fact and conclusions of
law, the appellant may challenge the legal and factual sufficiency of the evidence
supporting the trial court’s implicit findings. Cf. Marchand, 83 S.W.3d at 795 (implicit
findings may be challenged in the absence of findings of fact and conclusions of law if
record includes reporter’s record and clerk’s record).
4
statute. American Type Culture Collection, 83 S.W.3d at 806; see Tex. Civ. Prac. & Rem.
Code Ann. § 17.042 (Vernon 2008). This, however, is a minimal pleading requirement
which is satisfied by an allegation that the nonresident defendant is doing business in
Texas. Huynh v. Nguyen, 180 S.W.3d 608, 619-20 (Tex.App.–Houston [14th Dist.] 2005,
no pet.); see Perna v. Hogan, 162 S.W.3d 648, 652-53 (Tex.App.–Houston [14th Dist.]
2005, no pet.) (indicating pleading requirement can be satisfied by alleging nonresident
defendant is doing business in Texas or nonresident defendant committed an act in
Texas).
It is the burden of the nonresident defendant to negate all bases of jurisdiction
alleged in the plaintiff’s petition. Moki Mac, 221 S.W.3d at 574; Marchand, 83 S.W.3d at
793. Texas courts may assert personal jurisdiction over a nonresident defendant if
authorized by the long-arm statute and the exercise of jurisdiction is consistent with federal
due process guarantees. Moki Mac, 221 S.W.3d at 574. The long-arm statute authorizes
the exercise of jurisdiction by a Texas court over a nonresident defendant that “does
business” in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 2008). The
statute presents a non-exhaustive list of activities constituting “doing business.” Marchand,
83 S.W.3d at 795. In part, the statute provides that a nonresident does business in Texas
if it “commits a tort in whole or in part in this state.” Tex. Civ. Prac. & Rem. Code Ann. §
17.042(2) (Vernon 2008). The broad statutory language has been held to extend the
personal jurisdiction of a Texas court “‘as far as the federal constitutional requirements of
due process will permit.’” Marchand, 83 S.W.3d at 795 (quoting U-Anchor Adver., Inc. v
5
Burt, 553 S.W.2d 760, 762 (Tex. 1977)); Bryant v. Roblee, 153 S.W.3d 626, 629
(Tex.App.–Amarillo 2004, no pet.).
Because of the breadth of the long-arm statute, our analysis focuses on whether the
acts of son and daughter-in-law bring them within the personal jurisdiction of the Texas trial
court according to the requirements of due process. See Moki Mac, 221 S.W.3d at 575.
The Due Process Clause of the Fourteenth Amendment “protects an individual’s liberty
interest in not being subject to the binding judgments of a forum with which he has
established no meaningful contacts, ties, or relations.” Burger King Corp. v. Rudzewicz,
471 U.S. 462, 471-72, 105 S. Ct. 2174, 2181-82, 85 L. Ed. 2d 528 (1985) (internal
quotation marks omitted). Exercise of personal jurisdiction over a nonresident defendant
is proper under the Due Process Clause if the nonresident defendant establishes sufficient
minimum contacts with the forum state, and the forum state’s assertion of personal
jurisdiction over the nonresident defendant comports with “traditional notions of fair play
and substantial justice.” Marchand, 83 S.W.3d at 795 (citing international Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).
“The minimum-contacts analysis requires that a defendant ‘purposefully avail’ itself
of the privilege of conducting activities within Texas, thus invoking the benefits and
protections of our laws.” American Type Culture Collection, 83 S.W.3d at 806 (citing
Burger King, 471 U.S. at 475, 105 S. Ct. at 2183). It is said “‘purposeful availment’” is the
touchstone of jurisdictional due process. Michiana, 168 S.W.3d at 784. Determining
“purposeful availment” requires a three-part inquiry:
6
First, only the defendant’s contacts with the forum are relevant, not the
unilateral activity of another party or a third person. Second, the contacts
relied upon must be purposeful rather than random, fortuitous, or attenuated.
. . . Finally, the defendant must seek some benefit, advantage or profit by
availing itself of the jurisdiction.
Moki Mac, 221 S.W.3d at 575. “The defendant’s activities, whether they consist of direct
acts within Texas or conduct outside Texas, must justify a conclusion that the defendant
could reasonably anticipate being called into a Texas court.” American Type Culture
Collection, 83 S.W.3d at 806 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297, 100 S.Ct. 559, 568, 62 L.Ed.2d 490 (1980)).5
A nonresident defendant’s contacts with the forum state may give rise to either
general jurisdiction or specific jurisdiction. Moki Mac, 221 S.W.3d at 575; Bryant, 153
S.W.3d at 629. General jurisdiction arises from continuous and systematic contacts with
the forum, whether or not the defendant’s alleged liability arises from those contacts. Id.
Specific jurisdiction exists when a defendant purposefully avails itself of conducting
activities in the forum state and the cause of action arises from or is related to those
contacts or activities. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333,
338 (Tex. 2009); Moki Mac, 221 S.W.3d at 576; Dowdy v. Miller, 122 S.W.3d 816, 820
5
However, “purposeful availment alone will not support an exercise of specific
jurisdiction.” Moki Mac, 221 S.W.3d at 579. Rather, it must also be found that “the
defendant’s liability arises from or relates to the forum contacts.” Id. The standard in such
an analysis requires a “substantial connection between [the defendant’s forum] contacts
and the operative facts of the litigation.” Id. at 585. The court, therefore, considers the
claims involved in the litigation to determine the operative facts.
7
(Tex.App.–Amarillo 2003, no pet.). See Helicopteros Nacionales de Colombia v. Hall, 466
U.S. 408, 414 n.8, 104 S.Ct. 1868, 1872 n.8, 80 L.Ed.2d 404 (1984)).
Here there is no allegation of general or specific jurisdiction by father. And the trial
court granted appellees’ special appearance without issuing findings of fact and
conclusions of law. Son and daughter-in-law have no place of business in Texas, have no
registered agent, employees, servants, or agents in Texas, and handle matters under the
power of attorney from a residence outside of Texas. This absence of “continuous and
systematic” contacts with Texas means the trial court could not exercise general jurisdiction
over son and daughter-in-law. Rather, if personal jurisdiction attached in this case it must
be based on specific jurisdiction.
Father’s unilateral act of signing a document designating son his attorney-in-fact
does not direct our due process analysis. Our concern is with the activities son and
daughter-in-law purposefully directed toward Texas. See Burger King, 471 U.S. at 478-79,
105 S.Ct. at 2185 (contract alone does not establish sufficient minimum contacts; rather,
it is “prior negotiations and contemplated future consequences, along with the terms of the
contract and the parties’ actual course of dealing–that must be evaluated”); Dowdy, 122
S.W.3d at 822.
Father broadly alleged in his petition that all of the conduct giving rise to his breach
of fiduciary duty claim occurred in Potter County, Texas. Significantly, however, father did
not dispute son’s averment that he performed all duties for his father outside of Texas.
8
The trial court’s resolution of that factual dispute in favor of appellees is supported by the
record.
On the limited record the parties developed in the trial court, we find the parties’
course of dealing under the power of attorney insufficient to convince that son and
daughter-in-law purposefully availed themselves of the privilege of conducting activities
within Texas so as to satisfy the minimum contacts requirement for exercise of personal
jurisdiction over them by a Texas court. Father’s assertion that the bank from which son
improperly withdrew funds by check and ATM was a Texas bank does not alter our
conclusion. Having found the record does not show appellees’ purposeful availment, it is
unnecessary to consider whether a substantial connection existed between their contacts
with Texas and the operative facts underlying father’s alleged injury. See Moki Mac, 221
S.W.3d at 584-85. Further, In the absence of a finding of sufficient minimum contacts to
satisfy the strictures of due process, it is also unnecessary to consider whether an
assertion of personal jurisdiction by the Texas trial court over son and daughter-in-law
would comport with traditional notions of fair play and substantial justice. See Guardian
Royal Exch. Assur., Ltd. v English China Clays, P.L.C., 815 S.W.2d 226, 228 (Tex. 1991)
(citing Burger King, 471 U.S. at 476, 105 S.Ct. at 2184). We overrule father’s first and third
issues.
By his second issue, father asserts counsel for son and daughter-in-law and the
judge of the trial court engaged in an unspecified and improper ex parte communication.
Appellees note in their brief that the trial court disposed of their special appearance by
9
submission without hearing. And the record does not indicate otherwise. Moreover, the
record contains no indication that father called this alleged error to the trial court’s attention
and obtained a ruling.
Preservation of a complaint for review on appeal requires a party present a timely
request, motion, or objection to the trial court that states the specific grounds for the ruling
requested and conforms to the requirements of the Rules of Procedure and Evidence. See
Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999); Tex. R. App. P.
33.1(a)(1)(A)-(B). The complaining party must also show that the trial court ruled on the
request, objection, or motion “either expressly or impliedly” or refused to rule and the party
objected to the refusal. Tex. R. App. P. 33.1(a)(2)(A)-(B). Because father did not preserve
error, nothing is presented for our review. We, accordingly, overrule father’s second issue.
Conclusion
Having overruled father’s three issues, we affirm the judgment of the trial court.
James T. Campbell
Justice
10