Dowelanco v. Benitez

Concurring Opinion by

Chief Justice ROBERT J. SEERDEN.

Opinion by Chief Justice SEERDEN.

I agree with the majority’s disposition of this case, but write separately to express my reasoning.

*875The majority relies on an admission in the federal lawsuit that Rios was “an alien residing in Hidalgo County” to support the assertion of personal jurisdiction. However, “residence” or “domicile” is a term of art with regard to the requirements for personal jurisdiction, and it is not established by conclusory allegations that the defendant does, or does not, “reside” in a particular state at a particular time before the lawsuit was filed.

Conclusory statements are generally not considered competent evidence. Hidalgo v. Surety Sav. & Loan Assoc., 487 S.W.2d 702, 703 (Tex.1972); Gordon v. Western Steel Co., 950 S.W.2d 743, 749 (Tex.App.—Corpus Christi 1997, pet. denied). This is especially true when conclusory statements are countered by allegations that set out in detail the factual basis for negating the particular conclusion. City of Harlingen v. Vega, 951 S.W.2d 25, 32 (Tex.App.—Corpus Christi 1997, no writ).

In the present case, Rios disputes residence in Texas by his affidavit that alleges a present residence in Mexico, though he admits to frequent contacts with Texas. Accordingly, I would not assume personal jurisdiction based on a vague prior allegation of residence. Rather, I would look to the test for asserting jurisdiction over a nonresident according to his continuing and substantial contacts with the state of Texas.

The United States Supreme Court divides the federal due process requirements for personal jurisdiction over a nonresident defendant into two parts: (1) whether the nonresident defendant has purposely established “minimum contacts” with the forum state; and (2) if so, whether the exercise of jurisdiction comports with “fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985); Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984); Guardian Royal Exchange Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

As the majority states, Rios stipulated that he had “minimum contacts” with Texas sufficient to support the first part of the test for personal jurisdiction over a nonresident. Accordingly, there is no need to rely upon prior admissions or other evidence to show minimum contacts.

Rather, I believe that this Court should concentrate solely on the facts of record to show the second part of the test concerning fair play and substantial justice.

As Rios presented virtually no evidence to show that litigating in Texas would be a burden, that the policy interests of Mexico would be adversely affected, or any other reason to deny personal jurisdiction based on considerations of fair play and substantial justice, I agree with the majority that, when the facts are examined according to the second part of the test for compliance with federal due process, there is nothing unfair about extending personal jurisdiction over Rios. Therefore, I agree that the trial court erred in sustaining the objection to personal jurisdiction and dismissing the present action.