BLS Limousine Service, Inc. v. Buslease, Inc.

680 S.W.2d 543, 1984 Tex. App. LEXIS 6745
CourtCourt of Appeals of Texas
DecidedSeptember 24, 1984
Docket05-83-00446-CV
StatusPublished
Cited by35 cases

This text of 680 S.W.2d 543 (BLS Limousine Service, Inc. v. Buslease, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BLS Limousine Service, Inc. v. Buslease, Inc., 680 S.W.2d 543, 1984 Tex. App. LEXIS 6745 (Tex. Ct. App. 1984).

Opinions

STEWART, Justice.

BLS Limousine Service, Inc., and Abraham Altman, non-resident defendants, appeal by writ of error from a default judgment against them for damages in the amount of $9,460.40, plus attorney’s fees. In five points of error BLS and Altman attack the judgment on the grounds that minimum contacts were not established by the pleadings or evidence; there was no showing that the Secretary of State of Texas mailed citation by regular mail; the evidence, was insufficient to support damages; and the two separate contracts will not sustain a default judgment. We affirm the trial court’s judgment.

Buslease, Inc., appellee, is a Texas corporation with its principal place of business in Dallas, Texas. BLS is a California corporation and has its principal place of business in Culver City, California. Altman is also domiciled in Culver City. Buslease entered into two agreements with BLS and Altman to lease intercity buses. Altman signed one lease agreement as president of BLS; the other he signed “Abraham Altman, personal.” When BLS and Altman failed to pay the amount of $2,460.40 due under the lease or to return the buses to the state of Texas, Buslease sued for the amount owed, $7,000 in costs incidental to recovering the buses, and attorney’s fees.

In their first two points of error, BLS and Altman challenge the default judgment on jurisdictional grounds, asserting that due process was violated because the necessary minimum contacts were not established by the pleadings or evidence and that the contractual requirement of payment in Texas was insufficient to establish minimum contacts necessary for the exercise of longarm jurisdiction. In reviewing the authorities cited by appellants, we conclude that they have confused the requirements of the longarm statute, TEX.REV. CIV.STAT.ANN. art. 2031b (Vernon 1964 and Vernon Supp.1984), see Whitney v. L & L Realty Corp., 500 S.W.2d 94 (Tex.1973), and McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965), with the “minimum contacts” test of due process applicable to a special appearance under TEX.R.CIV.P. 120a, see O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966); U-Anchor Advertising, Inc. v. [546]*546Burt, 553 S.W.2d 760 (Tex.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978); TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427 (Tex.Civ.App.—Dallas 1981, writ ref d n.r.e.); and Gathers v. Wallace, Co., 544 S.W.2d 169 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.). In Whitney the court tested the pleadings only in terms of the requirements of article 2031b to determine if the defendant had a responsibility to answer under that statute:

We have no problem here as to the responsibility to answer, or “amenability to process.” The allegations are sufficient, under Section 6 of Art. 2031b, to require the defendants to answer if they have in fact been served in accordance with the requirements of that statute. Id. at 96. (Emphasis added).

Whitney, 500 S.W.2d at 96 (Emphasis added).

As in McKanna and Whitney, also default judgment cases appealed by writ of error, the issue before us is whether Buslease made sufficient allegations to confer jurisdiction under article 2031b. McKanna, 388 S.W.2d at 930. Here, appellants do not contend that Buslease’s pleadings fail to comply with the requirements of article 2031b, and, in fact, we hold that the allegations are sufficient under sections 3 and 4 of that article to give the court jurisdiction over the appellants. Thus, they had a responsibility to answer if they have been served in accordance with the statute. Id. We do not reach the minimum contacts issue because appellant filed no rule 120a special appearance to contest amenability to process under the “minimum contacts” rule. U-Anchor, 553 S.W.2d at 764; Blumenthal v. Ameritex Computer Corp., 646 S.W.2d 283 (Tex.App.—allas 1983, no writ); see Thode, Special Appearance, 42 TEX.L.REV. 279, 319 (1964).

In Blumenthal we held that when the nonresident defendant has made no special appearance as allowed by rule 120a, but seeks review of a default judgment by writ of error, a petition alleging the facts required by article 2031b for lon-garm jurisdiction is sufficient without alleging the three elements necessary to satisfy the “minimum contacts” test. We have found no case holding that a defendant may invoke the “minimum contacts” test without complying with rule 120a. Consequently, we adhere to our holding in Blumenthal, and, in the absence of any contention that the facts alleged here do not meet the requirements of article 2031b, we hold that longarm jurisdiction has been established for the purpose of this case.

In point of error three, BLS and Altman assert error in the court’s assuming jurisdiction under article 2031b because there was no showing that the Secretary of State affirmatively mailed the citations to them by regular mail through the United States Postal Service. They cite no authority to support this position; appellants merely “suggest” that this would be a simple and fair insurance of their receipt of the citations in this case. Their argument is without merit. As evidenced by the certificates of the Secretary of State, the Secretary forwarded process by certified mail, return receipt requested, to both BLS and Altman. Although the citations were returned to the Secretary bearing the notation “refused,” appellants were served in accordance with the requirements of article 2031b. Whitney, 500 S.W.2d at 95-96. TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 707 (Tex.Civ.App.—Fort Worth 1982, no writ). Point of error three is overruled.

BLS and Altman next maintain that the trial court erred in rendering a default judgment because the evidence of damages at the trial was wholly inadequate and insufficient to sustain the judgment. They complain of Buslease’s failure to attach to the petition or offer in evidence a summary of charges or other evidence from which the trial court could accurately determine damages to support the claim of $2,460.40 and the additional damages of $7,000.00. They argue that their default did not admit Buslease’s allegations of damages because the claim was not proved by an instrument in writing within the contemplation of TEX. [547]*547R.CIV.P. 241; consequently, they assert that the trial court was obligated to hear evidence on the damages issue. TEX.R. CIV.P. 243; Looney v. Kribbs, 588 S.W.2d 678 (Tex.Civ.App.—Tyler 1979, no writ).

We agree that under TEX.R. CIV.P.

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680 S.W.2d 543, 1984 Tex. App. LEXIS 6745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bls-limousine-service-inc-v-buslease-inc-texapp-1984.