G & W Body Works, Inc. v. Estate of Eschberger

557 S.W.2d 835, 1977 Tex. App. LEXIS 3393
CourtCourt of Appeals of Texas
DecidedOctober 27, 1977
DocketNo. 5739
StatusPublished
Cited by3 cases

This text of 557 S.W.2d 835 (G & W Body Works, Inc. v. Estate of Eschberger) 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
G & W Body Works, Inc. v. Estate of Eschberger, 557 S.W.2d 835, 1977 Tex. App. LEXIS 3393 (Tex. Ct. App. 1977).

Opinions

HALL, Justice.

This is a suit upon a foreign judgment which was rendered in favor of plaintiff G & W Body Works against Elwood Eschber-ger, a Texas resident, by the District Court of Bryan County, Oklahoma, when Eschber-ger failed to answer or appear in G & W’s suit against him on a sworn account for materials and services. The judgment was dated July 17, 1973, and awarded G & W a recovery of $4,075.30 with interest thereon at the rate of ten per cent per annum from September 27, 1972, and attorney’s fee in the amount of $407.50 with interest thereon at ten per cent per annum from date of judgment. Thereafter, Eschberger died. G & W then brought this suit on the judgment against the “Estate of Elwood Esch-berger, Deceased,” in the District Court of Hamilton County, Texas. The suit was answered and defended by La Ree Christin Eschberger, Administratrix of the Estate of Elwood J. Eschberger, Deceased. After a trial without a jury, judgment was ren[836]*836dered on December 22, 1976, that plaintiff take nothing. Plaintiff appeals. We reverse and render:

The Oklahoma judgment appears to be a valid, final and subsisting judgment rendered by a court of general jurisdiction. Its introduction into evidence made a prima facie case for plaintiff, and cast upon defendant the burden of establishing that the Oklahoma court lacked jurisdiction or that the judgment was otherwise void. Mitchim v. Mitchim, (Tex.Sup.1975) 518 S.W.2d 362, 364.

The trial court made and filed findings of fact and conclusions of law to the effect (1) that plaintiff’s petition in the Oklahoma suit did not state a cause of action against Eschberger, and (2) that the foreign court’s assumption of jurisdiction violated the requirements of federal constitutional due process because of want of sufficient contacts by Eschberger in the State of Oklahoma. By appropriate points of error, these findings and conclusions are challenged by plaintiff.

Plaintiff’s petition in the Oklahoma court was as follows:

IN THE DISTRICT COURT IN AND FOR BRYAN COUNTY, STATE OF OKLAHOMA
G & W BODY WORKS, INC. an Oklahoma Corporation
PLAINTIFF
-VS-
ELWOOD ESCHBERGER and HAMILTON PICKUP TRAILERS COMPANY, a corporation
DEFENDANTS
PETITION
Comes now the Plaintiff and for cause of action against the Defendants does allege and state as follows:
1. That the Defendant Hamilton Pickup Trailers Company does business at 113 East Leslie Street, Hamilton, Texas, 75431 and that the defendant, Elwood Eschberger, is an official of said Company and may be served with summons at the same address.
2. That in September, 1972, the Defendant, Elwood Eschberger, did request the Plaintiff to install two aluminum van bodies upon trailer chassis for the Defendant Hamilton Pickup Trailers Company at a cost of $4,075.30, as evidenced by an Invoice No. 9153, dated September 27, 1972, attached hereto as exhibit A. That said services were furnished in Durant, Ok. with the expectation that they would be paid for in cash. That demand for payment has been made and there is due and owing of $4,075.30 with interest from September 27, 1972. That by Western Union Telegram the said Hamilton Pickup Trailers Company did notify the Plaintiff that it did guarantee the payment of Invoice No. 9153 in the amount of $4,075.30, plus interest at 10% from September 27, 1972, said payment to be made by January 27, 1973. That to date, no payment has been made, although subsequent demands for payment have been made.
3. That there is due and owing without offset or setoff in the amount of $4,075.30, plus interest at 10% until paid from September 27, 1972, plus a reasonable attorney’s fee. That a reasonable attorney’s fee is $407.50.
WHEREFORE, premises considered, Plaintiff does pray judgment against the Defendants, and each of them, in the amount of $4,075.30, plus interest at the rate of 10% per annum from September 27, 1972, plus an attorney’s fee in the amount of $407.50, plus its costs herein expended.

The petition was signed by plaintiff’s attorney and sworn to by its president.

The invoice attached to the petition contains plaintiff’s letterhead, and states:

“Sold to: Mr. Eschberger
c/o Hamilton Pickup Trailers Company Highway 281, South Hamilton, Texas
“Description: Installed Aluminum Van Bodies on Trailer Chassis for A.B.S. Inc.; Price $2,037.65 ea.; Amount: $4,075.30.
“Hamilton Pickup Trailers Company to pay FET”

We agree with plaintiff that viewed from its four corners the petition stated a cause of action against Eschberger and gave him fair notice that he was being sued individually on plaintiff’s account. Defendant contends the petition showed only that Esch-berger was an official of Hamilton Pickup Trailers Company, that the work was done [837]*837for Hamilton Pickup Trailers Company, and that Hamilton Pickup Trailers Company was to pay for the work. Although the petition recited that Eschberger was an official of the Company and that the Company guaranteed payment of the account, it and the attached exhibit also showed that Eschberger solicited the work, that he was billed individually for the work, that he was named individually as a defendant, and that plaintiff prayed for recovery against him as an individual defendant. In our view, the recitation that the Company guaranteed payment of the account supports a pleading of individual liability by Eschberger. Defendant’s contentions are overruled.

In O’Brien v. Lanpar Company, 399 S.W.2d 340, 342, (Tex.Sup.1966) our Supreme Court set forth three basic elements which must be met before jurisdiction over a nonresident will satisfy federal constitutional due process:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the foreign state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

At all pertinent times Eschberger’s residence and place of business were in the City of Hamilton, Hamilton County, Texas. The process issued in the Oklahoma suit was served on him in Hamilton County, Texas, in compliance with Oklahoma’s so-called “long-arm” statute. Eschberger was a certified public accountant. He was also general manager of Hamilton Pickup Trailers Company, a corporation located in the City of Hamilton, and owned stock in that company. Plaintiff’s business is located in the City of Durant, Bryan County, Oklahoma.

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Bluebook (online)
557 S.W.2d 835, 1977 Tex. App. LEXIS 3393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g-w-body-works-inc-v-estate-of-eschberger-texapp-1977.