Opinion
No. 04-07-00622-CV
Delivered and Filed: February 28, 2008.
Appealed from the 229th Judicial District Court, Duval County, Texas, Trial Court No. DC-06-218, Honorable Alex William Gabert, Judge Presiding.
Affirmed.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, STEVEN C. HILBIG, Justice.
OPINION
This is an appeal from the denial of a special appearance. Ji-Haw Industrial Co., Ltd. and JBT International, Inc. ("Ji-Haw") bring three issues contending the trial court erred in denying their special appearance. In its first issue, the resolution of which is dispositive of this appeal, Ji-Haw alleges its proof of nonresidency was sufficient to sustain its special appearance. We disagree and affirm the denial of Ji-Haw's special appearance.
Background
Bonnie Broquet, Individually and as Next Friend and as Legally Appointed Representative of Kyla Deanne Lazo, a Minor, brought suit against Ji-Haw and several other defendants to recover personal injury damages allegedly sustained when an XBOX game system caught fire. Ji-Haw filed a special appearance asserting as its only ground that it was not a Texas resident. Ji-Haw provided proof of nonresidency through the affidavit of an employee. Ji-Haw argued proof of nonresidency was sufficient to sustain its special appearance because Broquet failed to plead any jurisdictional facts that would subject Ji-Haw to the jurisdiction of a Texas court. See Oryx Capital Int'l, Inc. v. Sage Apartments, L.L.C., 167 S.W.3d 432, 441 (Tex.App.-San Antonio 2005, no pet.). After a hearing, the trial court denied Ji-Haw's special appearance. Ji-Haw timely perfected this appeal. Applicable Law
After Ji-Haw filed its special appearance and set the matter for hearing, Microsoft Corporation and the Gamestop entities filed cross-claims against Ji-Haw. These entities also filed oppositions to Ji-Haw's special appearance. Given our disposition of this appeal, we need not address the effect, if any, of the cross-claims. We note that only Microsoft Corporation and the Gamestop entities have filed appellees' briefs in this appeal.
Standard of Review and Burden of Proof
Whether a court has jurisdiction over a nonresident defendant is a question of law subject to de novo review. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). When reviewing an issue de novo, the appellate court "exercises its own judgment and redetermines each legal issue," without any deference to the trial court. Hotels.com, L.P. v. Canales, 195 S.W.3d 147, 151 (Tex.App.-San Antonio 2006, no pet.) (quoting Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)). "The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the long-arm statute." BMC Software, 83 S.W.3d at 793. The plaintiff is not required to detail all theories or bases of personal jurisdiction relied upon. Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Rather, the only requirement is that the plaintiff plead allegations sufficient to bring the nonresident defendant within the province of the long-arm statute. Id. Once the plaintiff meets this pleading requirement, the burden shifts to the defendant challenging jurisdiction through a special appearance to negate all bases of personal jurisdiction. BMC Software, 83 S.W.3d at 793. If, however, "the plaintiff does not plead jurisdictional allegations, i.e., that the defendant has committed any act in Texas," the defendant can satisfy its burden by simply proving it is a nonresident. Oryx Capital, 167 S.W.3d at 441. If the defendant proves nonresidency or otherwise negates personal jurisdiction, the burden then returns to the plaintiff to show as a matter of law the trial court has personal jurisdiction over the defendant. Id. Substantive Law
Texas courts may assert personal jurisdiction over a nonresident if "(1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees." Moki Mac, 221 S.W.3d at 574. When the plaintiff has pled facts authorizing jurisdiction under the long-arm statute, a nonresident defendant can negate jurisdiction by proving (1) the defendant is not amenable to service under the Texas long-arm statute, or (2) exercising jurisdiction over the non-resident defendant would not comport with due process. See id. at 574-75. The long-arm statute authorizes the exercise of jurisdiction over nonresidents "doing business" in Texas. Tex. Civ. Prac. Rem. Code Ann. § 17.042 (Vernon 1997). The statute describes what, "[i]n addition to other acts," may constitute doing business in Texas. Pertinent to this appeal is subsection two, which provides that a nonresident does business in Texas if it "commits a tort in whole or in part in this state." Id. § 17.042(2).
Analysis
In its first issue, Ji-Haw contends the trial court erred in denying its special appearance because it met its burden to negate all bases of jurisdiction. Ji-Haw argues that Broquet did not plead any jurisdictional allegations in her petition. Ji-Haw contends it was therefore only required to prove nonresidency and its proof on this point was undisputed. We recognize that a failure to plead jurisdictional allegations requires the defendant simply to prove nonresidency to sustain its burden. However, we disagree with the contention that Broquet did not plead jurisdictional allegations invoking the long-arm statute.
In her First Amended Petition, Broquet specifically named each defendant and stated that all defendants would be referred to collectively as "Defendants." She alleged that a fire started in her home as a result of a defect in an XBOX game system ("the game console itself and/or the power line cord, and/or these components in combination") that was "designed, manufactured and marketed by Defendants." In a separate section of the petition entitled "Defendants Ji-Haw," Broquet alleged Ji-Haw was "legally responsible for the incident made the basis of this suit." She asserted Ji-Haw was guilty of negligence and its negligence was a proximate cause of the incident underlying the suit. Broquet further alleged Ji-Haw was strictly liable and that its conduct was a producing cause of the fire and injuries. In asserting strict liability, she referenced the theories set forth against other defendants earlier in the petition. Finally, she alleged that "[a]ll or a substantial part of the events or omissions giving rise to this claim occurred in Duval County, Texas," and she is a resident of Texas. These allegations, when considered together and liberally construed, assert that Ji-Haw committed a tort in Texas, which is all that is required under the long-arm statute. See Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (holding that in determining plea to jurisdiction pleadings are liberally construed in favor of pleader in assessing whether he has pled sufficient facts to demonstrate trial court's jurisdiction); id. at 240 (Brister, J., dissenting) (categorizing substance of special appearance as plea to jurisdiction); see also Tex. Civ. Prac. Rem. Code Ann. § 17.042(2). By describing the incident, alleging it was a result of the XBOX, including component parts manufactured by the "Defendants," alleging the incident forming the basis of the suit occurred in Texas, and that she is a Texas resident, Broquet did, contrary to Ji-Haw's assertion, allege sufficient facts to bring Ji-Haw within the long-arm statute.
Ji-Haw asserts that portions of the jurisdictional allegations discussed above should not be considered because they are contained in that part of the petition asserting venue and that Broquet's tort allegations are insufficient. We disagree. In her petition, Broquet alleged:
Venue is proper in Duval County, Texas, pursuant to Section 15.002(a)(1) of the Texas Civil Practice and Remedies Code. All or a substantial part of the events or omissions giving rise to this claim occurred in Duval County, Texas.
(emphasis added). We have found no case, and Ji-Haw has cited none, holding or suggesting that the sufficiency of jurisdictional allegations is dependent upon their placement within the petition. Further, we have found no case, and Ji-Haw has cited none, holding or suggesting that we should not consider the petition as a whole in determining whether a plaintiff has pled sufficient jurisdictional facts to invoke the long-arm statute. At least one court has held that consideration of the venue portion of a petition is proper in determining the sufficiency of jurisdictional allegations. See Thunderbird Supply Co. v. Williams, 161 S.W.3d 731, 733-34 (Tex.App.-Beaumont 2005, no pet.).
In Thunderbird, the plaintiff alleged he was a Jefferson County, Texas resident and in his venue allegation stated, "Venue in Jefferson County is proper in that all or a substantial part of the events or omissions giving rise to the claims occurred in this county." Id. at 733. In other portions of the petition the plaintiff alleged "he was exposed to `various toxic products designed, manufactured and marketed' by the thirteen so-called `Jewelry Defendants, `" but did not allege the exposure occurred in Texas. Id. The court first noted that commission of a tort within the state is one means by which a nonresident may be deemed to be doing business in Texas. Id. at 733-34 (citing Tex. Civ. Prac. Rem. Code Ann. § 17.042(2) (Vernon 1997)). Then, obviously considering the venue allegation with the general tort allegation, the court held the plaintiff had "met his initial burden of pleading allegations sufficient to bring [the defendant] within the long-arm statute," thereby shifting the burden to the defendant to negate all bases of personal jurisdiction alleged. Id. at 734.
Just as in Thunderbird, Broquet alleged she was a Texas resident and, in the venue portion of her petition, alleged that all or a substantial part of the events or omissions giving rise to her claims occurred in Texas. In other portions of the petitions she included general negligence allegations against all of the defendants as well as negligence allegations particular to Ji-Haw. Accordingly, Broquet met her initial burden of pleading allegations sufficient to bring Ji-Haw within the long-arm statute. See id.
Ji-Haw contends Thunderbird is inapplicable because it conflicts with Siskind v. Villa Found. for Educ., 642 S.W.2d 434 (Tex. 1982) and Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005). We disagree. Siskind is factually distinguishable and neither Siskind nor Michiana address the specific issue presented in this case.
In Siskind, a plaintiff brought suit against an Arizona school and several individual school employees. 642 S.W.2d at 434-35. The school and the individual defendants filed special appearances. Id. at 435. In holding the individual defendants sustained their burden by proving nonresidency, the supreme court made it clear the plaintiff had not alleged any acts by the individuals in Texas. In his allegations, apart from a breach of contract claim, the plaintiff failed to "differentiate between [the school] and the individual [defendants]"; rather, the plaintiff claimed all the defendants were jointly and severally liable, and that the individuals were individually liable and as agents of the school. Id. at 436 n. 3. Here, while Broquet alleged the fire was caused by an XBOX "that was designed, manufactured and marketed by Defendants," she also differentiated between the various defendants, alleging negligence and other claims against each in separate sections of her petition. Broquet did not simply allege Ji-Haw was liable with the other defendants based on joint and several liability, agency, or conspiracy as did the plaintiff in Siskind. Moreover, Siskind was clearly concerned with the absence of allegations of any acts by the individuals, not with the general nature of the negligence allegations, which is Ji-Haw's actual complaint. Id. at 437.
Ji-Haw, quoting Michiana, argues jurisdiction "cannot turn on whether a plaintiff alleges wrongdoing — as virtually all will." 168 S.W.3d at 791. However, the issue in Michiana was not whether the plaintiff's petition contained sufficient jurisdictional allegations to invoke the long-arm statute. Rather, with regard to the quote relied upon by Ji-Haw, the court was addressing whether jurisdiction is measured by an absence of minimum contacts or a lack of culpability. Id. Clearly, Michiana is irrelevant to the issue in this case and like Siskind does not compel the result sought by Ji-Haw.
We conclude Broquet alleged sufficient jurisdictional facts to bring Ji-Haw within the Texas long-arm statute. Accordingly, the burden shifted to Ji-Haw to negate all bases of personal jurisdiction, see BMC Software, 83 S.W.3d at 793, not merely prove non-residency. See Oryx Capital, 167 S.W.3d at 441. Because Ji-Haw only alleged and proved non-residency in its special appearance, it did not negate all bases of personal jurisdiction. See Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673 (Tex.App.-Dallas 1993, writ dism'd by ag't).
We overrule Ji-Haw's first issue. Our resolution of this issue is dispositive of this appeal and, therefore we need not address Ji-Haw's other issues. The trial court's order denying Ji-Haw's special appearance is affirmed.