nogle-black-aviation-inc-and-charles-judson-nogle-v-anna-maria ( 2009 )

Motion for Rehearing Overruled, Motion to Strike Granted, and Supplemental Opinion on Rehearing filed July 30, 2009

Motion for Rehearing Overruled, Motion to Strike Granted, and Supplemental Opinion on Rehearing filed July 30, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00272-CV

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NOGLE & BLACK AVIATION, INC. AND CHARLES JUDSON NOGLE, Appellants

V.

ANNA MARIA FAVERETTO AS NEXT FRIEND OF ALEJANDRO MIGLIORI AND MARIANA MIGLIORI, MINORS, AND AMERICO MIGLIORI AS ADMINISTRATOR OF THE ESTATE OF PEITRO FOSTER MIGLIORI, Appellees

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 364604-401

S U P P L E M E N T A L   O P I N I O N   O N   R E H E A R I N G

N&B has moved for rehearing on several grounds.  We overrule its motion, and we issue this supplemental opinion to address one issue raised in the motion.

Based on a new deposition page not included in the appellate record and another deposition page in the record but never cited in any of its pre-opinion briefing, N&B argues that our conclusion that jurisdiction is proper based on its relationship with Juarez is mistaken.  We disagree.  First, we may not consider evidence that is only attached to briefs.^[1] See Tex. R. App. P. 34.1; City of Farmers Branch v. Ramos, 235 S.W.3d 462, 467 (Tex. App.CDallas 2007, no pet.).  Second, the remaining evidence does not establish that the trial court=s decision was erroneous.  When, as here, the trial court does not issue findings of fact, we presume the trial court resolved all fact issues in favor of its judgment, and we will uphold those findings if supported by sufficient evidence.  See Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154, 161 (Tex. App.CFort Worth 2008, no pet.); Schott Glas v. Adame, 178 S.W.3d 307, 312 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).  We imply that the trial court found that even if N&B did not, as N&B argues, have a contract with Juarez, it had a substantial enough relationship to justify the exercise of personal jurisdiction.  We will construe N&B=s argument as a challenge to the sufficiency of the evidence supporting this implied finding.

N&B argues that a separate entity, the T-34 Spar Corporation, alone hired Juarez, that the data Juarez provided to N&B was only through this corporation, and that N&B had no input in or control over the scope of the work Juarez performed.  However, the deposition testimony N&B cites does not clearly establish this theory.  N&B=s deposition evidence states that Juarez provided data to N&B through the T-34 Spar Corporation and that the T-34 Spar Corporation offered N&B a certain inspection procedure that the FAA would not accept unless it was renumbered. This evidence does not negate the other relevant evidence, which shows that (1) N&B paid Juarez for his work, (2) Juarez=s work was performed in Texas, (3) N&B specifically chose to use Juarez=s work because it liked Juarez=s inspection procedure the best, (4) the work played an important part in securing FAA approval of the AMOC, and (5) N&B profited from the use of Juarez=s work.  At most, N&B=s evidence raises a fact issue about the nature and extent of its relationship with Juarez, which does not render the remaining evidence insufficient to support the trial court=s implied finding of a substantial relationship between N&B and Juarez.  See Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987); Milacron Inc. v. Performance Rail Tie, L.P., 262 S.W.3d 872, 875 (Tex. App.CTexarkana 2008, no pet.).  For these additional reasons, we hold the trial court properly exercised personal jurisdiction over N&B.

/s/      Leslie B. Yates

Justice

Panel consists of Justices Yates, Seymore, and Boyce.

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^[1]  It is also for this reason that we grant N&B=s motion to strike the new affidavits the Miglioris attached to their brief on rehearing, which relate to a causation argument we do not discuss further in this supplemental opinion.