Gales v. Denis

260 S.W.3d 22, 2008 Tex. App. LEXIS 3024, 2008 WL 1829515
CourtCourt of Appeals of Texas
DecidedApril 24, 2008
Docket01-07-01101-CV
StatusPublished
Cited by3 cases

This text of 260 S.W.3d 22 (Gales v. Denis) 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
Gales v. Denis, 260 S.W.3d 22, 2008 Tex. App. LEXIS 3024, 2008 WL 1829515 (Tex. Ct. App. 2008).

Opinion

OPINION

EVELYN V. KEYES, Justice.

William F. Gales, Sr., appellant, contests the trial court’s order denying his special appearance. In six issues, he argues that (1) the trial court erred in finding that he filed an answer before he filed his special appearance, or, alternatively, that trial court erred in finding that the answer did not conform to Texas Rule of Civil Procedure 120a; (2) the trial court erred in finding that he had established minimum contacts with Texas by purposefully availing himself of the privilege of conducting activities in Texas; and (3) the trial court erred in concluding that the exercise of personal jurisdiction over him was consistent with traditional notions of fair play and substantial justice.

We affirm.

Background

Michael William Denis, individually and in his capacity as the independent executor of the estate of Reba B. Jones, Deceased, and Ronald E.W. Denis (collectively, “the Denises”), appellees, sued appellant for his alleged involvement in the sale of a piece of property in Brazoria County, Texas that *26 was formerly owned by Reba Jones, a resident of Alabama. 1

According to the Denises’ Fourth Amended Original Petition, the property in question had been owned by Jones’s family for more than 56 years. Jones allegedly executed a durable power of attorney in Alabama on November 20,1997, in favor of her daughter, Barbara Gales, who was also a resident of Alabama. On March 17, 2005, Barbara Gales used this authority to execute a warranty deed transferring the Brazoria County property to her husband, Michael Gales, who was appellant’s son. The deed states that Michael Gales gave ten dollars and “other valuable consideration” in exchange for the Brazoria County property. Three days later, on March 20, 2005, Reba Jones died in Alabama. Five weeks after that, the warranty deed conveying the Brazoria County property to Michael Gales was recorded in the real property records of Brazoria County.

Barbara and Michael Gales subsequently listed the Brazoria County property for sale with Texas real estate agent Yvette Reyes-Hall. Michael Denis, Barbara Gales’ son from a previous marriage, contacted the realtor’s licensed subagent handling the property listing to inform her that the title to the property was in question, that probate proceedings were pending, that the property should be taken off the market, and that all potential buyers should be advised of the title issues. Nevertheless, Barbara and Michael Gales entered into a contract to sell the Brazoria County property to Sable Quest, Ltd. for $1,154,415.36 on February 28, 2006. Six weeks later, while the sale was pending, Barbara Gales died in Alabama. No will was found.

On May 23, 2006, prior to the closing of the sale of the Brazoria County property, Michael Gales executed an Affidavit of Heirship in Alabama related to the family history of Barbara Gales. The affidavit appears to have been made directly to Alamo Title Company, located in the Houston area, and was filed in the property records of Brazoria County. The Denises allege that this was to “facilitate the sale of the property [and to] clear up title issues to the property.” The affidavit stated, among other things, that “[Barbara Gales] was married only once and that was to [Michael Gales]. [Barbara Gales] had no children.” Appellant similarly signed the following statement before a notary in Alabama: “I am also personally acquainted with the family history and facts of heir-ship under [Barbara Gales,] having been personally acquainted with [her] for 24 years. I have read the foregoing affidavit of [Michael Gales] and after reading the same, I find it to be true and correct.” Another defendant in this suit, Charlotte Wenk, signed a similar statement. Both statements were likewise filed in the Bra-zoria County property records.

The Denises allege that appellant, Wenk, and Michael Gales all knew that Barbara Gales had been married four times and that the Denises were her two surviving children. They also argue that appellant and Michael Gales knew that other statements made in the affidavit were false.

Three days after appellant, Wenk, and Michael Gales executed the affidavit of heirship, the Brazoria County property *27 was sold to Sable Quest, Ltd. The closing took place in Texas on May 26, 2006 through Alamo Title Company. On July 18, 2006, Michael Denis was appointed as independent executor of the estate of Reba Jones. Michael Gales died on February 23, 2007.

The Denises brought the underlying suit, 2 alleging fraud and conspiracy to commit fraud in connection with the disposition of the Brazoria County property. Appellant was served in this suit on July 16, 2007 in Alabama. Appellant signed a letter dated July 20, 2007, and it was filed among the court documents on July 31, 2007. The letter begins with the salutation “To whom it may concern” and states,

I, William F. Gales Sr. [Appellant], acknowledge the service of the lawsuit against me as part of the suit against Sable Quest, LTD., Yvette Reyes-Hall, Michael Gales, deceased, and Charlotte Wenk by Michael Denis on 16 July 2007. I deny the accusations against me. I have no recollection of signing an affidavit.

The letter was signed by appellant and two witnesses, and it was notarized by a notary public of the state of Alabama. The record does not contain any accompanying envelope or any indication of how the letter came to be filed with the trial court. It appears that court personnel marked the letter with the cause number.

On August 13, 2007, appellant’s attorney filed a formal special appearance on behalf of appellant, and the trial court conducted a hearing on the special appearance on November 19, 2007. Appellant argued that he was not subject to personal jurisdiction in Texas because his only allegedly wrongful act was the execution of the affidavit of heirship in Alabama, which did not occur until 14 months after Barbara Gales had committed the allegedly fraudulent transfer of Jones’s property to Michael Gales. The Denises countered that jurisdiction was proper because appellant purposefully availed himself of the forum when the fraudulent affidavit was filed in Brazoria County to effect the sale of the Brazoria County property and because he received a monetary benefit from the sale of the property to Sable Quest, Ltd. The Denises presented evidence that appellant was a co-owner with right of survivorship on the bank account into which Michael Gales deposited the proceeds from the land sale.

At the hearing, the trial court asked the parties about the letter signed by appellant in July 2007 and requested additional briefing on whether it constituted an answer that waived appellant’s objection to jurisdiction in Texas. On November 28, 2007, the trial court issued its order denying appellant’s special appearance and made the following findings of fact and conclusions of law:

1. General personal jurisdiction over [appellant] does not exist because [the Denises] did not plead sufficient facts to establish continuous and systematic contacts with Texas.
2.

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Cite This Page — Counsel Stack

Bluebook (online)
260 S.W.3d 22, 2008 Tex. App. LEXIS 3024, 2008 WL 1829515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gales-v-denis-texapp-2008.