Phillips Development & Realty, LLC v. LJA Engineering, Inc., F/K/A LJA Engineering & Surveying, Inc.

499 S.W.3d 78, 2016 Tex. App. LEXIS 6915, 2016 WL 3610457
CourtCourt of Appeals of Texas
DecidedJune 30, 2016
DocketNO. 14-14-00858-CV
StatusPublished
Cited by20 cases

This text of 499 S.W.3d 78 (Phillips Development & Realty, LLC v. LJA Engineering, Inc., F/K/A LJA Engineering & Surveying, 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
Phillips Development & Realty, LLC v. LJA Engineering, Inc., F/K/A LJA Engineering & Surveying, Inc., 499 S.W.3d 78, 2016 Tex. App. LEXIS 6915, 2016 WL 3610457 (Tex. Ct. App. 2016).

Opinions

OPINION

Martha Hill Jamison, Justice

This is an accelerated appeal by Phillips Development & Realty, LLC from the trial court’s order denying the special appearance1 filed by Phillips in this breach [83]*83of contract suit brought by LJA Engineering & Surveying, Inc.2 In four issues, Phillips asserts the trial court erred in denying its special appearance.3 .We affirm the trial court’s order on the basis of specific jurisdiction.4

BACKGROUND

Phillips is a Florida limited liability company with one office in Tampa, Florida. Phillips is in the real estate development business and is a parent company of numerous single-asset entities. PDRH is a North Carolina limited liability company with one office in Tampa, Florida. PDRH is a subsidiary of Phillips. LJA is a Texas corporation with its principal place of business in Houston, Texas. LJA is an engineering firm.

This dispute concerns the proposed development of two apartment complexes in Galveston County, Texas: one in Kemah and another in League City. Heath Hans signed a written contract purportedly on behalf of Phillips. Under this contract, which LJA signed, LJA agreed to provide engineering services to Phillips for the Ke-mah project. LJA also signed two con-traets with PDRH to provide engineering services. Phillips asserts that it was not a proper party to the contract with LJA and that Phillips executed this contract by mistake because that contract allegedly should have been between LJA and PDRH.

Kemah Project

On January 31, 2008, LJA sent PDRH a proposal for boundary and topographic surveys for an 8-acre tract and a 15-acre tract of land. Based on this proposal, on April 15* 2008, LJA and PDRH entered into a Professional Services Agreement. Both the agreement and proposal were signed by Hans as preconstruction manager for PDRH.

On April 9, 2008, LJA sent Phillips a proposal that involved the full spectrum of engineering services necessary for the development and construction of the apartment complex in Kemah. Based on this proposal, on April 15, 2008, LJA and Phillips entered into a Professional Services Agreement (the “Agreement”). Both the Agreement and proposal were signed by Hans as preconstruction manager for Phil[84]*84lips. Two months later, Hans signed a letter agreement in which Phillips agreed to increase the Agreement’s scope of work and the contract price. The Agreement is the center of the parties’ dispute.

League City Project

On June 18, 2008, LJA sent Phillips a proposal for engineering services for the development and construction of the apartment complex in League City. Based on this proposal, on June 27, 2008, LJA and PDRH entered into a Professional Services Agreement.- Both the agreement and proposal listed the client as Phillips; however, this was crossed out by handwriting and the name PDRH LLC was inserted. Cliff Minsley signed these documents on behalf of PDRH. On July 21, 2008, Yolanda Zimmerman, with the site development division of LJA, sent an internal email to LJA employee Heather Ham-mons, to “Please'change name of Phillips Development (Client 1360) to PDRH, LLC. Proposal to follow.” (“Internal Email”). There is no later-dated proposal between the parties in the record.

LJA provided engineering services for the projects from February 2008 through October 2012. All work was performed in Houston, Texas, and Galveston County, Texas. , Phillips could not obtain sufficient financing and the project halted. LJA alleges that Phillips failed to pay amounts owed under the Agreement for services LJA rendered for the Kemah project. The total amount owed to LJA by Phillips on the Kemah project is $122,208.63, plus interest. •

LJA filed suit against defendants in Harris County. LJA asserted a single claim against Phillips for breach of the Agreement, seeking to recover actual damages, interest, and reasonable attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code. Phillips filed a special appearance challenging the trial court’s ability to exercise personal jurisdiction over Phillips and seeking dismissal of LJA’s claim against Phillips. The trial court denied the special appearance and entered findings of fact and conclusions of law. This appeal followed.

Special Appearance Standard of Review

Phillips challenges the trial court’s denial of its special appearance. Whether a trial court has personal jurisdiction over a nonresident defendant is a question of law we review de novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007); Horowitz v. Berger, 377 S.W.3d 115, 121-22 (Tex.App.-Houston [14th Dist.] 2012, no pet.).

When, as here, the trial court issues findings of fact and conclusions of law in connection with its ruling on the special appearance, the appellant may challenge the trial court’s factual findings on legal and factual sufficiency grounds. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). We review the challenged factual findings by applying the same standards used in reviewing jury findings. Horowitz, 377 S.W.3d at 122. When reviewing for legal sufficiency, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that supports the challenged finding. City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable fact-finder could not. Id. at 827. We determine whether the evidence would enable reasonable and fair-minded people to find the fact at issue. See id. The factfinder is the sole judge of the credibility of the witnesses and the weight of their testimony. Id. at 819. In reviewing for factual sufficiency, we consider all of the evidence [85]*85and will set aside a finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. We review the trial court’s conclusions of law de novo. Id.

We analyze the propriety of a special appearance on the basis of “the pleadings, any stipulations made by arid 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(3). On appeal, the scope of review in a special appearance case includes all evidence in the record. Dodd v. Savino, 426 S.W.3d 275, 284 (Tex.App.-Houston [14th Dist.] 2014, no pet.); Horowitz, 377 S.W.3d at 122. We do not address the merits of the lawsuit when we review an order denying a special appearance. See Michiana Easy Livin’Country, Inc. v. Holten, 168 S.W.3d 777, 791-92 (Tex.2005); Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex.App.-Houston [14th Dist.] 2008, pet. denied).

Pleadings and the Evidence

The plaintiff and the defendant bear shifting burdens of proof in a challenge to personal jurisdiction. Kelly v. General Interior Const., Inc., 301 S.W.3d 653, 658 (Tex.2010).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

in the Interest of A v. and L v. Children
Court of Appeals of Texas, 2022
San Jacinto River Authority v. Edgar Gonzalez
Court of Appeals of Texas, 2022
Kathy Brady v. Anita Kane
Court of Appeals of Texas, 2020
Hogg v. Lynch, Chappell & Alsup, P.C.
553 S.W.3d 55 (Court of Appeals of Texas, 2018)
Freeman v. Harleton Oil & Gas, Inc.
528 S.W.3d 708 (Court of Appeals of Texas, 2017)
In the Interest of A.L.H.
515 S.W.3d 60 (Court of Appeals of Texas, 2017)
Yujie Ren v. Anu Resources, LLC
502 S.W.3d 840 (Court of Appeals of Texas, 2016)
in Re Federal Corporation
Court of Appeals of Texas, 2016

Cite This Page — Counsel Stack

Bluebook (online)
499 S.W.3d 78, 2016 Tex. App. LEXIS 6915, 2016 WL 3610457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-development-realty-llc-v-lja-engineering-inc-fka-lja-texapp-2016.