Wayne Lensing and Lefhander Marketing, Inc. v. David Card and Cleo Lowe

417 S.W.3d 152, 2013 WL 6002033, 2013 Tex. App. LEXIS 13952
CourtCourt of Appeals of Texas
DecidedNovember 13, 2013
Docket05-13-00353-CV
StatusPublished
Cited by12 cases

This text of 417 S.W.3d 152 (Wayne Lensing and Lefhander Marketing, Inc. v. David Card and Cleo Lowe) 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
Wayne Lensing and Lefhander Marketing, Inc. v. David Card and Cleo Lowe, 417 S.W.3d 152, 2013 WL 6002033, 2013 Tex. App. LEXIS 13952 (Tex. Ct. App. 2013).

Opinion

OPINION

Opinion by

Justice FITZGERALD.

This is an interlocutory appeal from an order denying a special appearance. Because appellees have nonsuited their claims against appellant Lefthander Marketing, Inc., we dismiss Lefthander’s appeal as moot. We affirm the denial of appellant Wayne Lensing’s special appearance.

I. Background

A. Factual allegations

Appellees allege the following facts in their live pleading.

Appellees are the children of Donald and Ida Mae Card. Donald and Ida Mae Card were the sole owners of a historical artifact — a grave marker that had once marked the grave of Lee Harvey Oswald. At some point before 1987, the Cards entrusted the grave marker to Ida Mae’s sister and brother-in-law, Billie and Albert Ragan, for safekeeping. At some point before 2001, the Ragans and appellee Cleo Lowe allowed the Ragans’ son, Johnny Ragan, to move the grave marker to his house. Johnny Ragan’s wife was Holly Ra-gan.

Donald and Ida Mae Card died, and ownership of the grave marker passed to appellees. Johnny Ragan also died. Lowe contacted Holly Ragan to get the grave marker back, but Ragan denied having possession of the marker and claimed ignorance of its whereabouts.

In May 2011, appellees learned that a museum in Illinois claimed to be exhibiting the missing grave marker. Appellees conducted an investigation and learned that Heritage Auctions, Inc., a Texas corporation, had facilitated contact between Holly Ragan and appellant Wayne Lensing, an Illinois resident. As a result of the contact, Lensing bought the grave marker from Holly Ragan, and he traveled to Texas to complete the transaction and take possession of the grave marker. Appel-lees contacted Lensing and demanded, the grave marker. He refused, claiming the marker was his.

B. Procedural history

In June 2012, appellees sued Holly Ra-gan, Lensing, and an Illinois corporation called Lefthander Marketing, Inc. 1 Lensing and Lefthander filed a special appearance to challenge the court’s personal jurisdiction over them. Appellees later amended their petition to add Heritage Auctions, Inc. as a defendant. In that pleading, they asserted claims against Lensing and Lefthander for declaratory judgment, conversion, violation of the Texas Theft Liability Act, and civil conspiracy. Lensing and Lefthander supplemented their special appearance to address appel-lees’ amended pleading, and they filed affi *155 davits in support of their special appearance. Appellees filed a response and a supplemental response to the special appearance.

The trial judge heard the special appearance in November 2012. Appellee David Card testified at the hearing, and several exhibits were admitted into evidence. The judge took the special appearance under advisement, and she later signed an order denying the special appearance. Appellants requested findings of fact and conclusions of law, but none appear in the appellate record.

Appellants timely perfected this interlocutory appeal. After they perfected this appeal, appellees nonsuited their claims against appellant Lefthander, and the trial judge signed an order granting the non-suit. Accordingly, we will vacate the denial of Lefthander’s special appearance, dismiss Lefthander’s appeal as moot, and proceed to consider Lensing’s appeal only. See Le v. Kilpatrick, 112 S.W.3d 681, 633-35 (Tex.App.-Tyler 2003, no pet.).

II. Standard op Review and Burden of Proof

We review the trial judge’s determination of a special appearance de novo. Capital Tech. Info. Servs., Inc. v. Arias & Arias Consultores, 270 S.W.3d 741, 748 (Tex.App.-Dallas 2008, pet. denied) (en banc). If the trial judge does not issue findings of fact and conclusions of law, we imply all fact findings supported by the evidence that are necessary to support the ruling. Id. The trial judge’s implied findings are not conclusive and may be challenged for legal and factual sufficiency on appeal. Id.

The plaintiff bears the initial burden of pleading sufficient facts to bring a nonresident defendant within the reach of the Texas long-arm statute. Id. The specially appearing defendant must then negate all bases of personal jurisdiction that have been pleaded by the plaintiff. Id. Alternatively, the defendant can show that even if the facts alleged by the plaintiff are true, the evidence and facts are legally insufficient to establish the propriety of jurisdiction over the defendant. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 659 (Tex.2010). If the plaintiff fails to plead any jurisdictional facts, the defendant carries his burden by proving he is not a resident of Texas. See id. at 658-59.

III. Analysis

Lensing raises two issues on appeal. In his first issue, he contends the trial judge erred by concluding that appellees sufficiently alleged, and that Lensing failed to negate, the existence of minimum contacts between Lensing and the state of Texas. In his second issue, he contends that the exercise of personal jurisdiction over him violates traditional notions of fair play and substantial justice.

A. The law of personal jurisdiction

The Texas long-arm statute reaches as far as due process allows. Johnson v. Kindred, 285 S.W.3d 895, 899 (Tex.App.-Dallas 2009, no pet.). Accordingly, a Texas court may exercise personal jurisdiction over a nonresident defendant if (1) the defendant has minimum contacts with Texas and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Id.

The minimum-contacts test focuses on the question of whether the defendant has purposefully availed himself of the privilege of conducting activities in the forum state. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005). Three principles guide the minimum-contacts analysis. Johnson, 285 *156 S.W.3d at 899. First, we must disregard any forum contacts by the defendant that resulted solely from the unilateral activity of another party or a third person. Id. Second, the defendant’s contacts with the forum state must be purposeful rather than random, isolated, or fortuitous. Id. And third, the defendant must have sought some benefit, advantage, or profit from his forum-directed activities and invoked the benefits and protections of the forum’s laws. Id. The defendant’s actions must justify a conclusion that he could reasonably anticipate being called into the courts of the forum state.

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417 S.W.3d 152, 2013 WL 6002033, 2013 Tex. App. LEXIS 13952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-lensing-and-lefhander-marketing-inc-v-david-card-and-cleo-lowe-texapp-2013.