Dowelanco v. Benitez

4 S.W.3d 866, 1999 Tex. App. LEXIS 7576, 1999 WL 812331
CourtCourt of Appeals of Texas
DecidedOctober 7, 1999
Docket13-97-780-CV
StatusPublished
Cited by38 cases

This text of 4 S.W.3d 866 (Dowelanco v. Benitez) 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
Dowelanco v. Benitez, 4 S.W.3d 866, 1999 Tex. App. LEXIS 7576, 1999 WL 812331 (Tex. Ct. App. 1999).

Opinions

OPINION

Opinion by

Justice YÁÑEZ.

The sole issue in this appeal is whether the trial court properly dismissed a suit based on a lack of personal jurisdiction over the defendant. We reverse and remand.

DowElanco alleges Anacleto Rios Beni-tez (“Rios”), a Mexican citizen, executed a $1,000,000 promissory note payable to DowElanco Mexico in Mexico. The purpose of the note was to secure a line of credit extended by DowElanco Mexico to Rajsa S.A. de C.V., a corporation owned and controlled by Rios. Rajsa distributed insecticides, pesticides, and herbicides purchased from DowElanco Mexico. When Rios defaulted on the note,1 DowElanco Mexico assigned the note to DowElanco, an affiliated company that maintains an office in Texas and conducts business in Texas.2

DowElanco filed a lawsuit in federal court seeking to recover on the note. Rios was personally served with process in the federal suit and filed an answer on August 21, 1995, stating “[defendant admits the allegations in paragraph I of Plaintiffs original petition that he is an alien residing in Hidalgo County....”3 The federal court dismissed the suit without prejudice because DowElanco failed to allege or establish complete diversity of citizenship.

DowElanco filed the instant lawsuit in state court on December 1, 1995, seeking to recover on the same note. After two attempts at personal service failed, the trial court found that “8701 North First Lane, West McAllen, Texas 78504 has been shown to be a correct residential address for [Rios]” and authorized substituted service at the McAllen residence. On July 17, 1996, the sheriff served Rios by posting the citation and petition on the front door of the McAllen residence. On August 12, 1996, Rios filed a special appearance objecting to personal jurisdiction. The trial court sustained Rios’s objection and dismissed DowElanco’s action. The trial court’s order found that Rios

established minimum contacts with the State of Texas, but the court does not have jurisdiction of [Rios’s] person because to exercise in personam jurisdic[870]*870tion over [him] would not comport with traditional notions of fair play and substantial justice guaranteed by the Due Process Clause of U.S. Constitution, and therefore [Rios’s] motion objecting to the jurisdiction should be sustained.

DowElanco requested findings of fact and conclusions of law. The trial court asked the parties to submit proposed findings of fact and conclusions of law and the parties complied; however, the court never issued findings of fact and conclusions of law. We presume that the trial court made the necessary findings to support its judgment. Implied findings of fact cannot be invoked, however, when the evidence establishes as a matter of law the issue to be determined. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex.1987).

Implicit in the trial court’s order is a determination Rios is not a Texas resident for jurisdictional purposes. DowElanco challenges the order, arguing Rios is a Texas resident. Alternatively, DowElanco asserts that even if Rios is not a Texas resident, the trial court had in personam jurisdiction because Rios was served in Texas and the exercise of personal jurisdiction does not violate federal due process requirements.

In order to succeed on his objection to personal jurisdiction, Rios was required to negate all bases of in personam jurisdiction. Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982). In determining whether he met his burden, we review all the evidence that was before the trial court, including the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony. Tex.R. Civ. P. 120a; J & J Marine, Inc. v. Le, 982 S.W.2d 918, 924 (Tex.App.-Corpus Christi 1998, no pet.).

The existence of personal jurisdiction is a question of law that must sometimes be preceded by the resolution of underlying factual disputes. J & J Marine, 982 S.W.2d at 924. Thus, appellate courts generally apply a sufficiency of the evidence standard of review when reviewing special appearances. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). However, the appellate court conducts a de novo review when applying the law to the facts. See Billingsley Parts and Equip., Inc. v. Vose, 881 S.W.2d 165, 169 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (reversing trial court’s dismissal of a suit based on lack of in personam jurisdiction where few facts were in dispute and the dispute centered around the legal effect of the facts); see also Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex.App.-Dallas 1994, pet. denied) (holding correct standard of review is de novo when reviewing trial court’s order granting special appearance where issue was the proper application of the jurisdictional formula of “minimum contacts” and “fair play and substantial justice”).

Few facts in this case are disputed. The primary issues are whether the trial court properly applied Texas law concerning residence, judicial admissions, and federal due process to the facts. Thus, we review de novo whether Rios is a Texas resident for jurisdictional purposes.

The generally accepted meaning of the term “residence” is the “[p]lace where one actually lives or has his home; a person’s dwelling place or place of habitation; ... a dwelling house.” Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex.1999) (citing Black’s Law Dictionary 907 (abridged 6th ed.1991)). The Texas Supreme Court recognized that the meaning to be given the term “residence” “depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention, and action are all elements to be [871]*871considered in determining where a person resides_” Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex.1964) (holding a candidate for county office met six-month residency requirements under election code where he attended law school in another county, never spent a night in the county, visited the county, entered into an employment contract there, and declared an intention to become a resident of that county upon graduating). An individual may have more than one residence. Texas Highway Dept. v. Kimble County, 239 S.W.2d 831, 832 (Tex.Civ.App.-Austin 1951, writ ref'd n.r.e.); see D.C. Hall Co. v. State Highway Comm’n, 330 S.W.2d 904, 907 (Tex.Civ.App.—El Paso 1959, writ ref'd n.r.e.) (company may be resident of Mississippi and Texas at the same time).

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Bluebook (online)
4 S.W.3d 866, 1999 Tex. App. LEXIS 7576, 1999 WL 812331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowelanco-v-benitez-texapp-1999.