Ann C. Morrill v. Lawrence J. Cisek, Jr. ( 2005 )

Opinion issued August 31, 2005

In The  

Court of Appeals  

For The  

First District of Texas  

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    NO. 01-03-01336-CV

NO. 01-04-00266-CV  

__________

ANN C. MORRILL, Appellant  

V.

LAWRENCE J. CISEK JR., Appellee  

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On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 02-CV-127474  

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MEMORANDUM OPINION  

          In an interlocutory appeal, appellant, Ann C. Morrill, challenges the trial court’s denial of her special appearance in the underlying lawsuit for defamation brought against her by her ex-husband, appellee, Lawrence J. Cisek Jr.   In three issues, Morrill, who is a resident of Maryland, contends that the trial court erred in denying her special appearance, her motion to transfer venue, and her motion to dismiss Cisek’s lawsuit on the grounds of forum non conveniens.

          In a direct appeal, Morrill challenges the trial court’s default judgment rendered against her after the trial court’s denial of her special appearance. In her sole issue, Morrill contends that the trial court erred in “deciding that there was [p]ersonal [j]urisdiction and [v]enue,” ordering a default judgment “when the Appellate Court had not yet determined whether [Morrill’s] [a]ppeal of [s]pecial [a]ppearance should be granted,” and entering a restraining order against her.

          We affirm the trial court’s order denying Morrill’s special appearance, and we reverse the trial court’s default judgment against her.   

Facts and Procedural Background

          In his original petition filed on December 13, 2002, and in his first amended petition filed on February 7, 2003, Cisek sued Morrill for defamation, alleging that Morrill had written several false and defamatory letters to Cisek’s employer, Baylor College of Medicine (Baylor), and to certain public officials concerning the parties’ ongoing dispute over Cisek’s child support obligations. In his petitions, Cisek sought recovery of monetary damages, as well as a permanent injunction prohibiting Morrill from contacting any employee or agent of Baylor, other than Cisek himself.

          Morrill answered the lawsuit and filed a motion challenging the exercise of personal jurisdiction over her or, alternatively, seeking to transfer the suit to Maryland or to dismiss the suit on forum non conveniens grounds. During a March 31, 2003 hearing, the trial court denied Morrill’s special appearance. Morrill asserts that the trial court also denied her motion to transfer venue and motion to dismiss on forum non conveniens grounds at the hearing. However, the trial court did not sign a written order at that time. Morrill then filed an interlocutory appeal from those rulings, but the Corpus Christi Court of Appeals dismissed her appeal for lack of jurisdiction on September 25, 2003.

          While Morrill’s interlocutory appeal was pending, in June 2003, the trial court ordered her to answer Cisek’s discovery requests. Morrill failed to comply with the trial court’s order, and, on July 8, 2003, the trial court struck her answer to the lawsuit. On September 29, 2003, Cisek filed a motion for entry of judgment, and, on November 24, 2003, a hearing was held regarding such motion. On December 3, 2003, the trial court signed a written order denying Morrill’s special appearance, and, in response, on December 12, 2003, Morrill filed her interlocutory appeal challenging the trial court’s denial of her special appearance.

          Thereafter, on February 4, 2004, the trial court granted a default judgment in favor of Cisek, ordered that Morrill be “permanently enjoined from contacting any officer, agent or employee of [Baylor]” or of any other employer of Cisek, and granted Cisek costs of court in the amount of $1,189.96. Subsequently, on February 25, 2004, Morrill filed a separate, direct appeal challenging the trial court’s rendition of the default judgment in favor of Cisek.   

Interlocutory Appeal

Personal Jurisdiction

          In her first issue, Morrill argues that the trial court erred in denying her special appearance because she had “less than minimal contacts with Texas” and because the contacts that she had with Texas were “solely in comity to enforce Maryland court ordered child support and contractual issues.”

          The burden of proof is on a nonresident to negate all possible grounds for personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985). The existence of personal jurisdiction is a question of law, which must sometimes be preceded by the resolution of underlying factual disputes. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.— Houston [1st Dist.] 2000, pet. dism’d w.o.j.).           A court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Fourteenth Amendment’s due process clause and the Texas long-arm statute are satisfied. See U.S. Const. amend. XIV, § 1; Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997); CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding). The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant who does business in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042. A nonresident “does business” in Texas if she, among other things, “commits a tort in whole or in part” in Texas. Id. The Texas Supreme Court has repeatedly interpreted this broad statutory language “to reach as far as the federal constitutional requirements of due process will allow.” CSR Ltd., 925 S.W.2d at 594 (citations omitted). Therefore, the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations. Id.

          The United States Constitution permits a state to assert personal jurisdiction over a nonresident defendant only if the defendant has some minimum, purposeful contacts with the state and if the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998). A nonresident who has purposefully availed herself of the privileges and benefits of conducting business in the foreign jurisdiction has sufficient contacts with the forum to confer personal jurisdiction. CSR Ltd., 925 S.W.2d at 594.  

          A defendant’s contacts with a forum can give rise to either general or specific jurisdiction. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex. 1991). Here, Cisek alleged specific jurisdiction, which is established if a defendant’s alleged liability arises from or is related to an activity conducted within the forum. See id. When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship between the defendant, the forum, and the litigation. Id. at 228. The exercise of personal jurisdiction is proper when the contacts proximately result from actions of the nonresident defendant that create a substantial connection with the forum state. Id. at 226. The substantial connection between the nonresident defendant and the forum state necessary for a finding of minimum contacts must come about by action or by conduct of the nonresident purposefully directed toward the forum state. Id.

          Foreseeability is an important consideration in deciding whether the nonresident has purposefully established minimum contacts with the forum state. Id. at 227. The concept of foreseeability is implicit in the requirement that there be a substantial connection between the nonresident defendant and Texas arising from actions or conduct of the nonresident defendant purposefully directed toward Texas. Id.   

          When reviewing a trial court’s ruling on a special appearance, we do not reach the merits of the underlying case. Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 251 n.10 (Tex. App—Houston [1st Dist.] 2004, pet. denied). Rather, the purpose of a special appearance is to determine whether the actions alleged by the plaintiff are of a type that suggest a defendant should expect to be subject to jurisdiction in Texas. Id. Accordingly, if the plaintiff alleges an action in tort that arose out of an act committed in Texas, the necessary proof is only that the purposeful act was committed in Texas. Id.; Arterbury v. Am. Bank & Trust Co., 553 S.W.2d 943, 949 (Tex. Civ. App.—Texarkana 1977, no writ); see Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2).  

          In the instant case, it is undisputed that Morrill is a resident of Maryland. While she has acknowledged that her correspondence directed to Cisek’s employers and to others concerning his alleged child-support arrearages constituted “contacts” with Texas, Morrill asserts that her “minimal contacts with Texas were [undertaken] to enforce Maryland court ordered child support and contractual obligations in comity only.” Whether minimal or not, the substance of these contacts formed the basis for Cisek’s defamation claim. Thus, there is a direct relationship between Morrill, her purposeful contacts with Cisek’s employer and others located in Texas, and Cisek’s defamation claim. Accordingly, we hold that Morrill has established sufficient minimum contacts with Texas to subject her to personal jurisdiction.

          However, the exercise of personal jurisdiction over a nonresident defendant must also comport with traditional notions of “fair play and substantial justice.” Guardian Royal, 815 S.W.2d at 228. In considering these notions, a court generally must look to the following factors: (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering substantive social policies. Id. at 228, 231. Only in rare cases will the exercise of jurisdiction not comport with fair play and substantial justice when a nonresident defendant has purposefully established minimum contacts with the forum state. Id. at 231.

          Here, Morrill asserts that the burden of litigating Cisek’s defamation claim in Texas would be severe because of the financial hardship it would impose on her. Undoubtedly, litigation away from home creates hardship for a defendant; however, there is no legal requirement that this hardship must be borne instead by the plaintiff whenever the defendant is not found in the state of the plaintiff’s residence. Wright, 137 S.W.3d at 253–54. While the burden on the nonresident defendant is a consideration in our due process analysis, it is not determinative. See Guardian Royal, 815 S.W.2d at 231 (providing that where defendant, who seeks to defeat jurisdiction, has purposefully directed his activities at forum residents, he must “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable”); Wright, 137 S.W.3d at 254. This is particularly true when, as in this case, Texas has a strong interest both in providing a forum for its residents and in holding parties who committed tortious acts against its residents accountable. See Guardian Royal, 815 S.W.2d at 232 (recognizing that interests of forum state and plaintiff frequently will justify severe burden placed upon nonresident defendant); Wright, 137 S.W.3d at 254. Thus, we hold that the exercise of personal jurisdiction over Morrill in this case comports with traditional notions of fair play and substantial justice.

          Accordingly, because the record indicates that Morrill’s contacts with Texas were sufficient to create specific jurisdiction over her and because the exercise of personal jurisdiction over Morrill comports with traditional notions of fair play and substantial justice, we further hold that the trial court did not err in denying Morrill’s special appearance.

          We overrule Morrill’s first issue.

Venue and Forum Non Conveniens

          In her second and third issues, Morrill contends that the trial court erred in denying her motion to transfer the lawsuit to Maryland and in denying her motion to dismiss the lawsuit on forum non conveniens grounds. However, there is no interlocutory appeal from most trial court rulings on venue motions. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) (Vernon 2002); Tex. R. Civ. P. 87(6); see Tex. Civ. Prac. & Rem. Code Ann. § 15.003(b) (Vernon Supp. 2004-2005). Additionally, there is no authority that permits an interlocutory review of the denial of a motion to dismiss for forum non conveniens. Martinez v. Bell Helicopter Textron, Inc., 49 S.W.3d 890, 891 (Tex. App.—Fort Worth 2001, pet. denied); Gen. Box Co. v. Southwest Subsidiary Co., 598 S.W.2d 662, 663 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ). Section 51.014 of the Civil Practice and Remedies Code does not permit appeal from an interlocutory order denying such a motion, and section 71.051, which governs forum non conveniens in actions for personal injury or wrongful death, does not provide for interlocutory appeal from the trial court’s refusal to dismiss. Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014, 71.051 (Vernon Supp. 2004-2005). Therefore, we hold that this court has no jurisdiction to consider Morrill’s second and third issues.

          Furthermore, even if this court had jurisdiction to review Morrill’s second and third issues, there is no evidence in the record that Morrill received rulings on either motion. To appeal a trial court’s refusal to transfer venue, a movant must obtain a clear ruling from the trial court, before trial, or she waives the issue on appeal. Cliff Jones, Inc. v. Ledbetter, 896 S.W.2d 417, 418–19 (Tex. App.—Houston [1st Dist.] 1995, no writ); see Tex. R. App. P. 33.1. In order to preserve error on appeal, the record must show that the trial court ruled on Morrill’s forum non conveniens motion. See Tex. R. App. P. 33.1. Here, the trial court’s written December 3, 2003 order expressly denies only her special appearance; the written order does not provide rulings on Morrill’s motion to transfer venue and motion to dismiss on forum non conveniens grounds. Although Morrill asserts that the trial court denied her motions at the hearing held on March 31, 2003, the transcript from the hearing is not in the record. Thus, even if we had jurisdiction, Morrill has not preserved either issue for our review. See id.

          We overrule Morrill’s second and third issues.

Appeal from Default Judgment  

          In regard to her challenge to the trial court’s rendition of default judgment against her, Morrill argues that the trial court erred in ordering a default judgment “when the Appellate Court had not yet determined whether [Morrill’s] [a]ppeal of [s]pecial [a]ppearance should be granted” and in entering a restraining order against her.

          Generally, an interlocutory appeal of the denial of a special appearance is statutorily authorized and “stays the commencement of a trial in the trial court pending resolution of the appeal.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7), (b) (Vernon Supp. 2004-2005). However, the interlocutory appeal does not necessarily stay the commencement of the trial during the appeal. Id. § 51.014(b)–(c) (Vernon Supp. 2004-2005). If a defendant who is appealing the denial of a special appearance meets the deadlines set forth in section 51.014(c), the defendant is entitled to an automatic stay of the commencement of a trial. See id. § 51.014(c). To be entitled to the automatic stay for an interlocutory appeal of the denial of a special appearance, the defendant must file the special appearance and request a submission or hearing on it by the later of the following: (1) the date set by the trial court in a scheduling order, or (2) the 180th day after the date the defendant filed (a) her original answer; (b) her first other responsive pleading to the plaintiff’s petition; or (c) her responsive pleading to the plaintiff’s amended petition that alleges a new cause of action against the defendant, who is then able to raise a defense concerning the lack of personal jurisdiction. Id.

          Cisek does not contend, and the record does not reveal, that the trial court, in a scheduling order, set a date for filing, submitting, or hearing Morrill’s special appearance. However, the record shows that Cisek filed his original petition on December 13, 2002, and his amended petition on February 7, 2003, and that Morrill filed her “motions” challenging the trial court’s exercise of personal jurisdiction over her on January 15, 2003 and on January 31, 2003. Furthermore, the trial court’s December 3, 2003 order denying Morrill’s special appearance expressly noted that the special appearance was heard on March 31, 2003. Therefore, pursuant to section 51.014(c) of the Civil Practices and Remedies Code, Morrill was entitled to the automatic stay in order to pursue her interlocutory appeal after the trial court denied her special appearance. See id. Accordingly, we hold that the trial court erred in rendering a default judgment in favor of Cisek while her interlocutory appeal was pending in this Court.   

          We sustain Morrill’s sole issue regarding her challenge to the default judgment rendered against her.

                                                         Conclusion

          In appellate cause number 01-03-01336-CV, we affirm the order of the trial court denying Morrill’s special appearance. In appellate cause number 01-04-00266-CV, we reverse the trial court’s default judgment and remand this cause to the trial court for further proceedings in accordance with this opinion. We deny all outstanding motions.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.