STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-659
BIOSONIX, LLC
VERSUS
MARCIA OLSON
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 248,071 HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
Andrew P. Texada Stafford, Stewart & Potter Post Office Box 1711 Alexandria, Louisiana 71309 (318) 487-4910 Counsel for Plaintiff/Appellant: Biosonix, LLC James L. Maughan The Maughan Law Firm, L.L.C. 634 Connell’s Park Lane Baton Rouge, Louisiana 70806 (225) 926-8533 Counsel for Plaintiff/Appellant: Biosonix, LLC
William Alan Pesnell The Pesnell Law Firm, APLC Post Office Box 1794 Shreveport, Louisiana 71166-1794 (318) 226-5577 Counsel for Defendant/Appellee: Marcia Olson KEATY, Judge.
This matter concerns several attempts by the plaintiff to make a Texas
judgment executory in Louisiana. After a hearing, the trial court granted the
defendant’s motion to deny full faith and credit to the Texas judgment and ordered
that it be stricken from the public records of Rapides Parish, Louisiana. The
plaintiff appeals. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
The plaintiff, Biosonix, LLC (BSX), is a Delaware limited liability company
in the business of developing, distributing, and selling fishing products that is
wholly owned by William H. Lewis (Lewis), the brother of Marcia Olson (Olson),
the named defendant in this matter. In August of 2012, BSX filed suit in the
Ninety-Fifth Judicial District Court in Dallas County, Texas, against Olson and
seven other defendants, seeking damages for various torts and contract violations
allegedly committed against it. In a Final Default Judgment rendered on May 27,
2013, the Texas court entered a judgment in favor of BSX and against Olson in the
total amount of $5,183,260.68 (hereafter referred to as “the Texas judgment”). On
August 5, 2013, BSX filed an Ex Parte Petition in the Ninth Judicial District Court
in Rapides Parish, Louisiana (the trial court), seeking to have the Texas judgment
made executory in this state pursuant to the Enforcement of Foreign Judgments
Act.2 By order dated August 13, 2013, the trial court made the Texas judgment
executory “in accordance with Louisiana law.”
Olson filed a dilatory exception of lack of procedural capacity, seeking to
have BSX’s Louisiana suit against her dismissed based upon her assertion that, 1 We have omitted some of the procedural history of this matter which we deem unnecessary to resolution of the instant appeal. 2 See La.R.S. 13:4241-4248. because BSX was a Delaware corporation doing business in Louisiana but was not
authorized to do business in this state, it was prohibited from filing any pleadings
in this state. In addition, Olson filed an answer and opposition to the ex parte
petition wherein she claimed that the Texas judgment against her was null and void
because Texas did not have personal jurisdiction over her. Olson’s answer
contained affirmative defenses and a reconventional demand wherein she alleged
that the Texas judgment was “violative of the Louisiana constitution and due
process of law” and that it was not entitled to full faith and credit because the issue
of the Texas court’s lack of personal jurisdiction over her was not litigated in the
Texas action. More specifically, Olson submitted that the allegations made by
BSX in the Texas litigation were false and defamatory and that she lacked
sufficient minimum contacts with the state of Texas such as to render her subject to
personal jurisdiction there. Following a hearing, the trial court granted Olson’s
exception of lack of procedural capacity. By judgment dated November 18, 2013,
the trial court declared the August 13, 2013 order making the Texas judgment
executory in Louisiana null and void on the basis that BSX was not properly
registered to do business in this state and, thus, “did not have authority to file a
demand in this Court.” As a result, the trial court vacated the judgment and
ordered the Rapides Parish Clerk of Court to cancel the judgment from the parish’s
mortgage records.
Meanwhile, Olson had filed a Petition to Annul the Texas judgment in the
trial court on November 8, 2013,3 on the basis that it was obtained by fraud and ill
3 Counsel for BSX was hospitalized from November 7, 2013, until the end of May 2014; in fact, he was in a coma for the first two months of his hospitalization. In her brief to this court, Olson explained that she “did not default BSX [with regard to her Petition to Annul] specifically because of the medical problems of opposing counsel.”
2 practices and in a court that had no personal jurisdiction over her. She asserted
therein that she neither did business, owned property, paid taxes in Texas, nor had
she taken any personal actions there so as to subject her to the personal jurisdiction
of that state. While Olson acknowledged therein that the August 13 order making
the Texas judgment executory in Louisiana had been annulled, she sought to have
the underlying Texas judgment annulled to prevent BSX from ever being able to
make it executory in this state. In an Amended Petition to Annul Judgment, Olson
sought a judgment annulling the Texas judgment and declaring it to have “no force
and effect, and denying full faith and credit to the Texas judgment.”
In early April 2014, BSX filed a second Ex Parte Petition seeking to have
the Texas judgment made executory in Louisiana. Pursuant to an order dated April
3, 2014, the trial court again made the Texas judgment executory in Louisiana.
Olson filed a motion for new trial and for a stay of the proceedings on April 21,
2014, on the basis that BSX was still not authorized to do business in this state.
Olson filed a second motion for new trial and for a stay of the proceedings in
July 2014 on the basis that BSX was still not authorized to do business in this state.
In an answer to Olson’s petition to annul the Texas judgment, BSX asserted that it
was not required to qualify to do business in Louisiana in order to make the Texas
judgment executory in this state. Olson also filed a motion to stay enforcement of
the Texas judgment that BSX was again seeking to make executory in Louisiana.
After conducting hearings on August 18, 2014, and October 1, 2014, the trial
court signed a Final Judgment4 on March 3, 2015, granting Olson’s motion to deny
full faith and credit to the Texas judgment, cancelling the Texas judgment, and
4 The Final Judgment referenced Reasons for Ruling dated October 29, 2014. According to those reasons, the trial court granted Olson’s request to treat her original and amended Petitions to Annul as a motion to deny full faith and credit to the Texas judgment.
3 ordering the Rapides Parish Clerk of Court erase the judgment from the public
records of Rapides Parish.5
BSX appeals, assigning the following errors:6
1. The Trial Court Exceeded its Authority by Vacating and Declaring the First Judgment of The Domestication[7] Null And Void.
2. BSX Was Not Required to Obtain a Certificate of Authority Prior to Bring[ing] Domestication Proceedings.
3. The Second Judgment Vacating the Order of Domestication Could Not be Rendered by The Court In A Summary Proceeding.
4. Louisiana was Precluded From Re-Litigating Whether Olson Was Subject to In Personam Jurisdiction of The Texas Court. 5. Olson Failed to Carry Her Burden of Proving That She Was Not Subject to In Personam Jurisdiction By The Texas Court.
DISCUSSION
Louisiana Code of Civil Procedure Article 2541(A) provides:
A party seeking recognition or execution by a Louisiana court of a judgment or decree of a court of the United States or a territory thereof, or of any other state, or of any foreign country may either seek enforcement pursuant to R.S. 13:4241, et seq., or bring an ordinary proceeding against the judgment debtor in the proper Louisiana court, to have the judgment or decree recognized and made the judgment of the Louisiana court.
In this case, BSX attempted to make the Texas judgment executory pursuant
to the Enforcement of Foreign Judgments Act (EFJA) as authorized in La.R.S.
13:4241-4248. Olson responded by filing a dilatory exception of lack of
procedural capacity, arguing that BSX needed to qualify to do business in 5 As a matter of housekeeping, we note that the March 3, 2015 appealed judgment was signed by Judge Monique Freeman Rauls who was elected to the Ninth Judicial District Court on December 6, 2014, and took office on January 1, 2015, while the October 29, 2014 Reasons for Ruling referenced in the judgment were signed by Judge Mary Lauve Doggett. 6 For ease of discussion, we have renumbered several of BSX’s assignments of error. We note that items three through five of BSX’s assignment of errors do not allege errors but rather are in the nature of questions or issues presented for review. 7 The process of making a foreign judgment executory in another state is commonly referred to as “domesticating” a judgment.
4 Louisiana before filing suit to make the Texas judgment executory in this state. 8
Later, by way of an original and amended Petition to Annul Judgment, Olson
sought to deny full faith and credit to the Texas judgment on the grounds that the
Texas court had no personal jurisdiction over her.
Did The Trial Court Exceed Its Authority By Vacating The August 13, 2013 Order Making The Texas Judgment Executory In Louisiana? In its first assignment of error, BSX contends that the trial court exceeded its
authority by vacating and declaring the August 13, 2013 order making the Texas
judgment executory in Louisiana null and void. Olson counters that because BSX
did not appeal nor seek writs from the November 18, 2013 judgment declaring the
August 13, 2013 order null and void, that judgment became final and may not now
be challenged on appeal.
The November 18, 2013 judgment vacating the earlier order making the
Texas judgment executory and declaring that BSX did not have authority to file a
demand in this state was a final judgment. See La.Code Civ.P. art. 1841.
Therefore, because BSX failed to timely appeal that judgment, it is precluded from
challenging the merits of that judgment. See Fulton v. Blue Cross of La., 563
So.2d 492 (La.App. 4 Cir.), writs denied, 567 So.2d 1129 (La.1990). Thus, we
need not address the substance of BSX’s first assignment of error.
8 While Olson cited La.R.S. 12:314 as the basis for her exception, the trial court noted in its November 18, 2013 judgment that Olson should have instead referenced La.R.S. 12:1354. We agree and observe that while both statutes are titled “Transacting business without authority,” Section 1354 refers to limited liability companies while Section 314 concerns foreign corporation law. Louisiana Revised Statutes 12:1354, provides, in pertinent part:
A. No foreign limited liability company transacting business in this state shall be permitted to present any judicial demand before any court of this state unless it has been authorized to transact such business, if required by and as provided in, this Chapter. The burden of proof shall rest upon the limited liability company to establish that it has been so authorized, and the only legal evidence thereof shall be the certificate of the secretary of state or a duly authenticated copy thereof.
5 Was BSX Required To Obtain A Certificate of Authority Before Petitioning To Make The Texas Judgment Executory Pursuant To The EFJA?
In the November 18, 2013 judgment declaring the August 13, 2013 order
null and void, the trial court expressly found that because “Biosonix, LLC was not
properly registered to do business in this state,” it “did not have authority to file a
demand in this Court.” Again, because BSX failed to timely appeal that judgment,
it is precluded from challenging that issue. See Fulton, 563 So.2d 492. Thus, we
need not address the substance of BSX’s second assigned error.
Could The Trial Court Vacate The Second Order Of Domestication In A Summary Proceeding?
In its third assignment of error, citing Veillon v. Veillon, 517 So.2d 936
(La.App. 3 Cir.), writ denied, 519 So.2d 105 (La.1987), BSX contends that the trial
court could not render judgment on Olson’s Petition to Annul by way of a
summary proceeding. In opposition, Olson submits that the trial court acted within
its authority when it converted her Petition to Annul to a motion to deny full faith
and credit.
In Holiday Hospitality Franchising, Inc. v. Grant, 36,035 (La.App. 2 Cir.
5/8/02), 817 So.2d 449, a default judgment was entered in favor of the plaintiff and
against the defendants in Georgia. After the plaintiff made the Georgia judgment
executory in Louisiana pursuant to the EFJA, the defendants filed a petition for
nullity of the Louisiana judgment, alleging that because the Georgia court lacked
subject matter jurisdiction and because they did not receive proper notice of the
proceedings in Georgia, the foreign judgment was not entitled to full faith and
credit in this state. The defendants also sought to have the Louisiana court declare
the Georgia judgment null and void. Thereafter, the plaintiff filed a motion to
strike the defendants’ petition for nullity. After a hearing, the trial court granted
6 the plaintiff’s motion to strike, and the defendants appealed. Upon review, the
court of appeal, citing McKisson v. McKisson, 179 La. 593, 154 So. 618 (1934),
affirmed the part of the judgment denying the plaintiff’s request to nullify a
judgment of another state. However, the appellate court found that the trial court
erred in granting the motion to strike that portion of the defendants’ petition for
nullity wherein they alleged that the Georgia court lacked subject matter and
personal jurisdiction, holding:
[T]he Louisiana trial court was obligated to consider and rule upon whether the Georgia judgment was entitled to full faith and credit. La. R.S. 13:4241. Only upon proper inquiry concerning these questions of jurisdiction, evincing that these issues were fully and fairly litigated in the original court, should a Louisiana court afford full faith and credit to the Georgia judgment. See, Schultz v. Doyle, [00-926 (La. 1/17/10), 776 So.2d 1158]. Upon review of the foreign default judgment, and the record in its entirety, it appears that the jurisdictional question was never raised in Georgia. The district court should have treated the Grants’ petition as a contradictory motion, to which they are entitled under La. R.S. 13:4244, insofar as it raised justiciable issues. Liberal rules of pleadings prevail and each pleading should be so construed as to do substantial justice and, when it can reasonably do so, a court should maintain a petition so as to afford a litigant an opportunity to present his evidence. La. C.C.P. art. 865; See also, Williams v. State, 34,691 (La.App. 2 Cir. 5/9/01), 786 So.2d 927. The Grants were entitled to more than merely a hearing on Holiday’s motion to strike.
Moreover, the record is devoid of any allegations of insufficient demand or defense; nor were there any redundant, immaterial, impertinent, or scandalous matter before the trial court. Rather, cognizable questions of law and/or fact indeed existed in the present suit with regard to questions of jurisdiction. See, Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., [01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, writ denied, 01-2115 (La. 7/26/01), 794 So.2d 834]. Therefore, we find the trial court erred in its use of the motion to strike this aspect of the petition for nullity.
Holiday, 817 So.2d at 453. BSX failed to distinguish Holiday, and we see no
reason not to extend its rationale to the matter at hand, especially given the
similarities between the two cases. Accordingly, we conclude that the trial court
7 did not err in converting Olson’s Petition to Annul to a motion to deny full faith
and credit and in granting the same in a summary proceeding and after not one, but
two, contradictory hearings. BSX’s third assignment of error has no merit.
Was The Trial Court Precluded From Re-Litigating Whether Olson Was Subject To In Personam Jurisdiction Of The Texas Court?
In its fourth assignment of error, citing “Didier v. Didier, 255 La. 806, 233
So.2d 248 (1970),” BSX asserts in brief that “[a] Louisiana court must give full
faith and credit to a judgment of a sister state if the decree is unassailable in the
courts of the state which rendered it; if the decree cannot be attacked collaterally in
the initial court, it cannot be attacked in a Louisiana court.” BSX further submits
that settled Texas law provides that “where a judgment is collaterally attacked,
plain jurisdiction recitals contained therein must be accorded absolute verity.”
Pure Oil Co. v. Reece, 78 S.W.2d 932, 934 (Tex. Comm’n App. 1935, judgm’t
adopted).
As Olson points out, the correct citation to the aforementioned quote in
Didier should have been to the court of appeal decision rather than to the writ
refusal by the supreme court. See Didier v. Didier, 230 So.2d 436 (La.App. 1 Cir.
1969), writ refused,[9] 255 La. 806, 233 So.2d 248 (1970). Further, Olson asserts
that Didier is distinguishable because the Louisiana appellate court found that the
parties to that case had actually appeared in the Arkansas court to contest that
court’s jurisdiction. Moreover, Olson submits that Texas’ rule of absolute verity
must not be allowed to trump her liberty interests and the federal rules regarding in
personam jurisdiction dictated by International Shoe Co. v. Washington, 326 U.S.
310, 66 S.Ct. 154 (1945) and its progeny.
9 The supreme court opinion states “Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.”
8 In Didier, the court of appeal affirmed the trial court’s recognition of the
Arkansas divorce decree based on its finding that “[r]ightly or wrongly, [the
Arkansas] court decided that it did have jurisdiction, i.e., that appellee fulfilled the
residency requirements” and because the appellant therein did “not allege any facts
which would show that she would be entitled to attack the Arkansas judgment in
the Arkansas court[,] Louisiana is bound to give full faith and credit to the
Arkansas decree.” Didier, 230 So.2d at 440.
In the instant case, BSX asserts that the Texas court found that it had
jurisdiction over the subject matter of the proceeding and over Olson based on the
affidavits of William H. Lewis and Ken Ellis that it submitted in conjunction with
the Final Default Judgment rendered against Olson in Texas. Given the issues
raised in Olson’s Petition to Annul, i.e., that the Texas judgment was obtained by
fraud and ill practices and in a court that had no personal jurisdiction over her,
which we have found could be converted to a motion to deny full faith and credit
and heard summarily, we find no error in the trial court’s decision to entertain
whether Olson was subject to in personam jurisdiction of the Texas court.
Moreover, “any judgment may be collaterally attacked if it is void for lack of
jurisdiction. A defendant is always free to ignore the judicial proceedings, risk a
default judgment, and then challenge that judgment on jurisdictional grounds in a
collateral proceeding.” Jacuzzi v. Pimienta, 762 F.3d 419, 420 (5th Cir. 2014)
(citing Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
102 S.Ct. 2099 (1982)). BSX’s fourth assignment of error lacks merit.
Did Olson Prove That The Texas Court Lacked Jurisdiction Over Her? In its final assignment of error, BSX asserts that Olson failed to carry her
burden of proving that she was not subject to in personam jurisdiction by the Texas
9 court. More particularly, BSX contends that Olson’s “self-serving” testimony did
not prove that the Texas court lacked in personam jurisdiction over her. Olson
counters that the testimony she offered demonstrated that she lacked minimum
contacts with the State of Texas and that BSX failed to rebut her evidence.
“An appellate court conducts a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. However, the trial court’s factual findings underlying the decision are reviewed under the manifest-error standard of review.” Peters v. Alpharetta Spa, L.L.C., 04-979, pp. 3-4 (La.App. 1 Cir. 5/6/05), 915 So.2d 908, 910 (citations omitted).
Dumachest v. Allen, 06-1614, p. 3 (La.App. 3 Cir. 5/23/07), 957 So.2d 374, 377,
writ denied, 07-1306 (La. 10/5/07), 964 So.2d 939.
In Schlobohm v. Schapiro, 784 S.W.2d 355, 356-57 (Tex. 1990), the
Supreme Court of Texas stated:
A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First, the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of jurisdiction must be consistent with federal and state constitutional guarantees of due process. See TEX.CIV.PRAC. & REM.CODE ANN. § 17.041–§ 17.069 (Vernon 1986).
Our long-arm statute authorizes the exercise of jurisdiction over those who do business in Texas. Id. at § 17.042. The statute lists particular acts that constitute “doing business.” The statute provides, however, that “other acts” of the nonresident may place him within the “doing business” requirement. Id.; see generally Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662 (Tex.1987), cert. denied 484 U.S. 1063, 108 S.Ct. 1022, 98 L.Ed.2d 986 (1988) . . . .
. . . This court has decided that the broad language of the long-arm statute’s doing business requirement allows the statute to reach as far as the federal constitution permits.
We must now examine the evidence presented by Olson to determine
whether the trial court correctly found that the Texas court lacked jurisdiction over
her. According to the language of the March 3, 2015 appealed judgment, the trial
10 court granted Olson’s motion to deny full faith and credit to the Texas judgment
after conducting hearings on August 18, 2014, and October 1, 2014.
At the start of the August 18, 2014 hearing, counsel for BSX stated in open
court that his client was registered to do business in the State of Louisiana as of
February 28, 2014. Thereafter, in response to the trial court’s inquiry as to whether
Olson would rather dismiss her pending motion for new trial or have the trial court
deny it, counsel for Olson elected to withdraw it.10 The trial court then stated that
it was converting Olson’s Petition to Annul, which was an ordinary proceeding, to
a motion to deny full faith and credit, to be heard that day, but that it would also
grant BSX’s request that it be given time to conduct additional discovery.
We now quote the October 29, 2014 Reasons for Ruling referenced in the
appealed judgment, which we conclude provide an accurate description of the
evidence adduced at the August 18, and October 1, 2014 hearings:
Procedural History: This matter involves a domestication of a Texas judgment “judgment”. Biosonix requested the judgment be domesticated, and Olson (“Olson”) filed a petition to annul the judgment. That petition was ultimately amended to request the Court deny full faith and credit to the judgment. The court granted Olson’s request to treat her petition as a motion to deny full faith and credit. The matter came on [sic] for hearing on August 18, 2014. Olson called several witnesses and introduced exhibits in her case. After mover rested, Biosonix requested a continuance to allow for additional discovery and obtain subpoenas for witnesses before presenting its case. The unopposed request was granted and a new hearing date was set for October 1, 2014. Both parties appeared on October 1, 2014. No additional witnesses or evidence was presented and the parties agreed to file post trial memorandum.
10 We note that the record on appeal contains a transcript from a February 2, 2015 hearing wherein the trial court ruled that counsel for BSX made a misrepresentation at the August 18, 2014 hearing when he stated in open court that his client was registered to do business in Louisiana after Olson presented evidence from the Secretary of State indicating that BSX’s application to do business in this state was rejected as unsatisfactory.
11 Facts: At the hearing on this matter, Olson submitted into evidence the Texas judgment and various pleadings in two separate Texas lawsuits, Articles of Organization of NOSLO, LLC and the Utah Secretary of State’s certificate of existence/good standing. As set forth in this court’s reasons for judgment on Olson’s petition for preliminary injunction, (submitted herein on October 13, 2014), the following facts were established at the hearing:[11]
o MARCIA LEWIS OLSON, OLSON, is a resident of the state of Louisiana and is domiciled in Rapides Parish.
o NORM OLSON is a resident of the state of Louisiana and is domiciled in Rapides Parish.
o Movers do not own immovable property in the state of Texas.
o Movers do not own personal property in the state of Texas.
o Movers have never conducted business in the state of Texas.
o OLSON owns 42% of Sports Design and Development, “SSD”
o OLSON has never conducted business in Texas on behalf of SSD.
o OLSON never conspired with anyone in Texas to take any action regarding Biosonix.
o BIOSONIX is owned by William H. Lewis.
o OLSON has no ownership interest in Biosonix
o OLSON has never worked for Biosonix
o BIOSONIX’S Texas judgments have resulted in judicial mortgage in excess of FIVE MILLION ($5,000,000.00) DOLLARS against OLSON’S property in Louisiana
o Since the rendering of BIOSONIX’S Texas judgment, [OLSON] has been persistently involved in legal proceedings in this Court to prohibit the domestication and enforcement of BIOSONIX’S Texas judgment in Louisiana at great pecuniary and temporal costs.
11 Some of these facts were stipulated to by the parties at the August 18, 2014 hearing.
12 According to the October 29, 2014 Reasons for Ruling referenced in the
appealed judgment, the trial court made the following factual conclusions:
Thus testimony of witnesses established that neither Marcia Olson, Norman Olson nor NOSLO ever did any business in the State of Texas, owned any property in the State of Texas, or had any substantial contacts with Texas whatsoever. The only contact Mr. and Mrs. Olson had with the State of Texas were occasional social visits with Olson’s relative in Texas that occurred once a year or once every two years. The testimony further established that Olson was not an officer or director of Sports Design and Development, Inc. at any time during the period of time alleged in the initial Texas proceeding.
The October 29, 2014 Reasons for Ruling then set out the framework
employed by the trial court in ruling on Olson’s motion to deny full faith and credit
to the Texas judgment, which we adopt by reference:
Legal Analysis:
The issue before the court is whether or not the state of Texas had personal jurisdiction of the defendant movers when it issued the judgment in question. Considering the facts herein, the court finds insufficient evidence to establish the requisite minimum contacts with Texas to support jurisdiction. Thus, the motion to deny full faith and credit of the Texas judgment is granted.
The filing of and maintenance of the suits in the State of Texas violate constitutional due process of the States of Texas and Louisiana. Those suits further violate the due process concerns expressed in the United States Constitution. The long-arm statute of the State of Texas operates to the maximum effect of the limits of federal due process. Schlobohm vs. Schapiro, 784 S.W. 2d 355, [] (Tex. 1990); Helicopteros Nacionales de Colombia, S.A. vs. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In Texas, the personal jurisdiction inquiry is the due process analysis. Fielding vs. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005).
Under a minimum contacts due process analysis, a person must have sufficient contacts with the forum state such that the maintenance of suit against that person does not offend traditional notions of fair play and substantial justice. International Shoe vs. Washington, 326 U.S. 310, [], 66 S. Ct. 154, [], 90 L.Ed. 95 (1945). The test for due process has two parts - a requirement of minimum contacts with the forum state, and a fundamental fairness evaluation, even if those contacts are present. See Burger King Corp. vs. Rudzewicz, 471 U.S. 462, [], 105 S.Ct. 2174, [], 85 L.Ed.2d 528
13 (1985); International Shoe, supra. A court may exercise personal jurisdiction if either (1) the defendant has purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities in that forum state, or (2) the controversy arises out of the defendant’s contacts with the forum state. Freud[en]sprung vs. Offshore Tech. Servs. Inc., 379 F.3d 327 (5th Cir. 2004). Insofar as specific jurisdiction is concerned, the action filed in Texas does not arise out of Olson’s only contact with Texas - a visit every now and then to a relative. Here, like in Vosko vs. Chase Manhattan Bank, N.A., 909 S.W.2d 95 ([Tex. App.] 1995), Plaintiff has not alleged that Olson performed any specific act in Texas. The only allegations of the petition are conclusory statements that Olson “did business in Texas” or “managed” a business that had sales in Texas or that Olson engaged in a “conspiracy.” There is no allegation of any act taken by Olson in furtherance of that “conspiracy.”
Finally, the October 29, 2014 Reasons for Ruling provide:
Accordingly, this Court denies full faith and credit to the Texas judgment and orders it cancelled from the mortgage records of Rapides Parish, Louisiana.
After having read the transcript from and the exhibits filed in conjunction with the
August 14, 2014 hearing, we find no manifest error in the trial court’s factual
finding that Olson maintained no contacts with the State of Texas so as to permit
that court to have general or specific jurisdiction over her, especially in light of the
fact that BSX failed to present any evidence or testimony in opposition to that
presented by Olson. Likewise, after having performed a de novo review of the
record, we conclude that Olson’s contacts with Texas were insufficient to allow the
Texas court to exercise personal jurisdiction over her. Accordingly, we find no
merit to BSX’s claim that Olson failed to carry her burden of proving that she was
not subject to in personam jurisdiction by the Texas court. BSX’s final assignment
is meritless.
14 DECREE
For the foregoing reasons, the trial court judgment granting Marcia Olson’s
motion to deny full faith and credit to the Texas judgment and its order that the
Texas judgment be stricken from the public records of Rapides Parish, Louisiana,
is affirmed. All costs of this appeal are assessed against Biosonix, LLC.