NO. 07-10-0303-CR
NO. 07-10-0304-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 30, 2010
______________________________
DAYMON LAMAR JOHNS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NOS. 56,483-E & 58,725-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
In exchange for a guilty plea, in 2007, Appellant, Daymon Lamar Johns, was convicted in cause number 56,483-E of evading arrest with a vehicle and sentenced to two years confinement and a $1,000 fine.[1] Appellant's sentence was suspended in favor of five years community supervision. In 2009, in exchange for a guilty plea, in cause number 58,725-E, Appellant was granted deferred adjudication community supervision for five years for possession of a controlled substance in a drug-free zone.[2] On March 19, 2010, the State filed an Amended Motion to Revoke Order for Community Supervision in cause number 56,483-E and an Amended Motion to Proceed with Adjudication of Guilt on Original Charge in cause number 58,725-E alleging violations of the terms and conditions of community supervision. Appellant entered pleas of true in both causes and the trial court revoked community supervision and sentenced Appellant to two years in a state jail facility plus a $1,000 fine in cause number 56,483-E. The trial court also adjudicated Appellant guilty of possession of a controlled substance in a drug-free zone and sentenced him to nine years confinement and a $1,000 fine in cause number 58,725-E. The trial court ordered the sentence in cause number 56,483-E to run consecutively to the sentence in cause number 58,725-E.
When the clerks' records were filed on August 17, 2010, it came to the Court=s attention that the record in cause number 58,725-E did not contain a Trial Court=s Certification of Defendant=s Right of Appeal as required by Rule 25.2(a)(2) and (d) of the Texas Rules of Appellate Procedure and that the record in cause number 56,483-E contained two separate certifications, neither of which is signed by Appellant as required by Rule 25.2(d).[3]
Consequently, we abate this appeal and remand this cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a proper Trial Court=s Certification of Defendant=s Right of Appeal in compliance with Rule 25.2(d) in each cause referenced herein. Once properly completed and executed, the certifications shall be included in supplemental clerks' records. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause the supplemental clerks' records to be filed with the Clerk of this Court by September 29, 2010. This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certifications. If supplemental clerks' records containing proper certifications are not filed in accordance with this order, these causes will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).
It is so ordered.
Per Curiam
Do not publish.
[1]Tex. Penal Code Ann. § 38.04(b)(1)(B) (Vernon Supp. 2009).
[2]Tex. Health & Safety Code Ann. § 481.134 (Vernon 2010).
[3]As of September 1, 2007, a defendant must sign and receive a copy of the certification.
isdiction to answer for his own tortious conduct simply because his actions were undertaken on behalf of an organization, we do not find SITQ controlling here. It involves factors not present in this case. Significantly, in SITQ, the actions of a Texas agent were imputed to the appellants. Too, that case involves allegations of misrepresentations, a factor not present here. It therefore shares a foundation with cases such as Memorial Hosp. Sys. v. Fisher Ins. Agency, Inc. 835 S.W.2d 645 (Tex.App.–Houston [14th Dist.] 1992, no writ), cited here by Miller, and Shapolsky v. Brewton, 56 S.W.3d 120 (Tex.App.–Houston [14th Dist.] 2001, no pet.), which also involved misrepresentations made by out-of-state defendants to Texas plaintiffs who relied on them in Texas.[9] Miller has attempted to bring this case within that category by pointing out that WTB continued to pay the rent under the lease for some time after the closing of the sale of the radio station, perhaps therefore misleading Miller to believe that it would continue to pay the lease. There is no evidence, though, that WTB’s rent payments after the closing were accompanied by any representation and the payments themselves cannot be seen as such.
The evidence shows that Morgan, acting in Mississippi, caused WTB to deplete its funds by paying some of its creditors, including himself, while failing to pay Miller. There is factually sufficient evidence from which the trial court could have concluded that Miller was the only creditor not paid. Miller does not contend that Morgan thereby committed a tortious act in Texas, but cites the proposition that a tortfeasor who knows that the brunt of the injury will be felt by a particular resident in the forum state must reasonably anticipate being haled into court there to answer for his actions. See Cartlidge v. Hernandez, 9 S.W.3d 341, 348 (Tex.App.–Houston [14th Dist.] 1999, no pet.), citing Memorial Hospital. This court previously has declined to adopt a test basing personal jurisdiction on the mere occurrence of injury in Texas. See Laykin v. McFall, 830 S.W. 2d at 271. We cannot say that Morgan’s failure to cause WTB to honor its lease with Miller, without more, is an activity sufficiently directed to Texas to subject him personally to jurisdiction here. See Burger King, 471 U.S. at 474 (foreseeability of causing injury in another state not sufficient alone to cause defendant to anticipate being subjected to suit in that state).
Finding that the record does not support a conclusion that Morgan’s activities established the minimum contacts with Texas such as to subject him to personal jurisdiction, we need not address whether the exercise of personal jurisdiction over him would comport with “fair play and substantial justice.” We sustain Morgan Dowdy’s issue, reverse the order of the trial court denying his special appearance, and remand the case with instructions to dismiss Morgan Dowdy.
James T. Campbell
Justice
[1]The corporation’s actual name was West Texas Broadcasting Company, Inc. All its shares were owned by members of Charles W. Dowdy’s immediate family. The corporation submitted an application to the Texas Secretary of State for a certificate of authority to transact business in Texas. It appears that it did not do so, though, until the day before the closing of the sale of its station in Tahoka.
[2]Her husband, Lionel Miller, died before commencement of this litigation.
[3]Morgan testified on deposition that he had traveled to Texas to inspect the tower after its construction, and acknowledged one or two other trips to Texas on corporation business, but denied any other contact with our state.
[4]Morgan questions the sufficiency of Miller’s allegations concerning Morgan’s personal amenability to suit in Texas to meet this “initial burden,” citing Frank A. Smith Sales, Inc. v. Atlantic Aero, Inc., 31 S.W.3d 742 (Tex.App.–Corpus Christi 2000, no pet.). Miller’s original petition, which, according to the record before us, remains her live pleading, alleges only a suit to enforce the lease. Morgan testified on deposition that the lease was a valid obligation of WTB, and that WTB’s lack of funds was the only reason it had not made further payments under the lease. He further testified that the funds WTB received from sale of the radio station were used to pay creditors, which included Morgan himself and other entities controlled by Morgan and other family members. Miller’s allegations that such payments were improper and breached a duty Morgan owed Miller, and her allegation of his execution of a non-compete agreement, were contained initially in her response to Morgan’s special appearance and later in briefs in the trial court and this court. For purposes of this opinion, we assume, without deciding, that the allegations in Miller’s original petition that Morgan “conducted business” in Texas, either alone or coupled with Miller’s later assertions of Morgan’s execution of the non-compete agreement and wrongdoing in handling the proceeds of WTB’s sale of the radio station, meet her “initial burden.”
[5]None of Miller’s record references identify an executed copy of the agreement. Morgan testified on deposition that he did not remember signing such an agreement. The record contains an unsigned copy of a document entitled “Non-Compete Agreement” between the station purchaser and Morgan. The record also contains an opinion of counsel issued in connection with the closing of the sale that states a non-compete agreement was signed. This opinion assumes that Morgan signed a non-compete agreement like that in the record. There is no contention, though, that Morgan signed the agreement in Texas. Morgan testified on deposition that the sale of the station was closed “by mail,” and none of the documents signed by Morgan in connection with the sale appear to have been signed in Texas.
[6]Miller argues that Morgan consented in the non-compete agreement to its enforcement in Texas. Without expressing any opinion on the question whether personal jurisdiction would lie in Texas for a suit against Morgan to enforce the non-compete agreement, we note that we do not find an agreed forum-selection provision in the agreement; it does contain a choice-of-law provision adopting the internal law of Texas.
[7] Tex. Bus. Corp. Act Ann. art. 8.02 (Vernon 2003).
[8]Article 6.04 of the Business Corporation Act establishes procedures a corporation must follow “before filing articles of dissolution.” The Siegel opinion applied the provisions of article 6.04 to the dissolution of a corporation. 663 S.W.2d at 826. Article 6.04 thus applies to WTB only by analogy. The undisputed evidence is that WTB was not dissolved, only that it has no assets and its certificate of authority to do business in Texas lapsed. Neither of these conditions invokes the provisions of article 6.04. Even assuming, arguendo, that Morgan’s conduct amounted to a breach of duty imposed by Texas law, that fact alone cannot establish the minimum contacts necessary to sustain personal jurisdiction.
[9]Note the discussion in Memorial Hospital that the tort there alleged, that of negligent misrepresentation, is held to be committed in part where reliance on the misrepresentation occurs. 835 S.W.2d at 648.