Kelly Patrick Amos v. State of Texas ( 2012 )

Opinion filed May 10, 2012
In The
Eleventh Court of Appeals
__________
No. 11-10-00194-CV
__________
MARY FRANCES HAFERKAMP, Appellant
V.
LEONARD GRUNSTEIN AND MURRAY FORMAN, Appellees
On Appeal from the 414th District Court
McLennan County, Texas
Trial Court Cause No. 2009-4054-5
MEMORANDUM OPINION
The trial court granted Leonard Grunstein’s and Murray Forman’s special appearance in
Mary Frances Haferkamp’s lawsuit against them. We affirm.
Background Facts
Appellant is a former employee of Mariner Healthcare Management Company. She filed
suit against Mariner Healthcare Management Company; SSC Waco Greenview Operating
Company, LP; SSC Pasadena Vista Operating Company, LP; SavaSeniorCare, LLC; and
SavaSeniorCare Administrative Services, LLC (collectively “Business Defendants”) in the 414th
District Court of McLennan County. In her lawsuit, appellant pleaded negligence claims arising
out of an alleged workplace injury in April 2005. After the Business Defendants filed a motion
for summary judgment, appellant filed a third amended petition naming new out-of-state
individual defendants, Leonard Grunstein and Murray Forman, and added claims for conspiracy
and alter ego theory.
Appellees have argued that they were not properly served with notice of appellant’s third
amended petition. Indeed, the returns on the citations do not reflect that service was had on
either Grunstein or Forman. Nevertheless, appellant obtained a partial default judgment against
them. According to appellees, no notice of the motion for default judgment or of the hearing on
the motion was given to any of the parties. After the trial court sent a letter to the parties
announcing its intention to grant summary judgment to the Business Defendants on appellant’s
negligence claims, appellant then filed a motion to sever the claims against appellees from those
against the Business Defendants. According to appellees, no notice of this motion or of the
hearing held on the motion was given to any of the parties.
The district clerk notified the Business Defendants that a severance order had been
entered. They had not been made aware of that, and they requested a copy of the trial court’s
docket sheet in order to determine whether appellant’s counsel had taken other actions without
notice. The Business Defendants filed a motion for sanctions against appellant for failing to
provide notice of the default judgment and the severance. Appellees were not parties to the
motion for sanctions. The motion was filed on behalf of the Business Defendants only and was
filed in the original cause, not the one into which the trial court severed the claims against
appellees.
On January 29, 2010, appellees filed their special appearances in the cause into which the
trial court had severed the claims against them. On April 22, 2010, the trial court granted
appellees’ special appearances and also granted summary judgment for the Business Defendants
in the original cause on appellant’s underlying negligence claims and dismissed that lawsuit.
Appellant timely filed a request for findings of fact and conclusions of law, and the trial court
entered them.
In this appeal, appellant maintains that the trial court erred when it granted appellees’
special appearances. Appellant also argues that the trial court’s findings of fact were not
supported by factually sufficient evidence and that it erred when it denied appellant adequate
time for discovery. For ease of reference, we have organized appellant’s issues on appeal as
follows:
1. Seeking affirmative relief aside from a special appearance constitutes a
general appearance;
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2. The default judgment admitted all facts except damages;
3. Appellees’ no alter ego defense fails;
4. Jurisdiction is proper because of appellees’ contact with Texas;
5. Findings of fact and conclusions of law are not supported and are
improper; and
6. Trial court denied appellant adequate time for discovery.
The Trial Court’s Findings of Facts & Conclusions of Law
At appellant’s request, the trial court entered findings of fact and conclusions of law. In
Issue No. 5, appellant concludes, without analysis, that Finding Nos. 2, 3, 4, and 6 are “so
against the great weight and preponderance of the evidence as to be manifestly wrong.”1 We
interpret appellant’s argument to be that certain of the trial court’s findings of fact are not
supported by factually sufficient evidence. A trial court’s findings of fact are reviewed for
factual sufficiency under the same standards used to review a jury’s verdict on jury questions.
Kennon v. McGraw, 281 S.W.3d 648, 650 (Tex. App.—Eastland 2009, no pet.). In reviewing a
factual sufficiency challenge, we consider all of the evidence and uphold the finding unless the
evidence is too weak to support it or the finding is so against the overwhelming weight of the
evidence as to be manifestly unjust. Paint Rock Operating, LLC v. Chisholm Exploration, Inc.,
339 S.W.3d 771, 774 (Tex. App.—Eastland 2011, no pet.) (citing Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986)).
Our review of the record reveals that each and every finding of fact by the trial court is
supported by sufficient evidence and, furthermore, was not controverted by appellant.
Specifically, Finding Nos. 2, 3, and 4 are each supported by the affidavits of Grunstein and
Forman. Each of these findings is a verbatim restatement of the assertions set out in appellees’
affidavits. Appellant’s third amended petition does not contain any facts that contest the
assertions in appellees’ affidavits. Appellant did not present any evidence to negate the claims
made in the affidavits, and neither did she assert that they were sham affidavits. The trial court’s
findings of fact are supported by sufficient evidence.
1
The findings made by the trial court were identical for both Grunstein and Forman, so appellant did not address them
separately. Since the affidavits of appellees are also identical except for the names of each party, we will also address them
together.
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Appellant also attacks Finding No. 6 for factual insufficiency. Finding No. 6 states: “To
the extent that this Court’s inquiry into its jurisdiction over [appellees] is anything other than a
pure question of law, the Court specifically finds that it lacks specific, general, and alter ego
jurisdiction over [appellees].” This is a conclusion of law. An appellant may not challenge a
trial court’s conclusions of law for factual insufficiency; however, the reviewing court may
review the trial court’s legal conclusions drawn from the facts to determine their correctness.
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002) (citing Templeton v.
Dreiss, 961 S.W.2d 645, 656 n.8 (Tex. App.—San Antonio 1998, pet. denied), and Dallas
Cnty. v. Sweitzer, 881 S.W.2d 757, 763 (Tex. App.—Dallas 1994, writ denied)). Appellant’s
Issue No. 5 is overruled as it pertains to the trial court’s findings of fact.
Appellant also attacks the trial court’s Conclusion of Law Nos. 5 and 6. These
conclusions concern the central issue of this appeal: whether the trial court erred in granting the
special appearances. We are not bound by the trial court’s conclusions of law and will review
them independently to determine their legal correctness by analysis below. State v. Heal, 917
S.W.2d 6, 9 (Tex. 1996); Landerman v. State Bar of Tex., 247 S.W.3d 426, 431 (Tex. App.—
Dallas 2008, pet. denied).
The Trial Court’s Order Granting Appellees’ Special Appearances
Appellant makes several arguments to support her position that the trial court erred when
it granted the special appearances. Appellant’s Issue Nos. 1, 2, 3, and 4 each attack the trial
court’s decision to grant the special appearances. In Issue No. 1, she argues that appellees
sought affirmative relief and thereby consented to the court’s exercise of personal jurisdiction
over them. In Issue Nos. 2 and 3, she argues that the default judgment against appellees admitted
all facts within her third amended petition, including allegations of alter ego jurisdiction. In
Issue No. 3, appellant asserts that appellees made voluntary contacts with the Texas Secretary of
State and the Texas Department of Aging and Disability Services and that these contacts support
a finding of both specific and general personal jurisdiction of the Texas courts.
In addition to subject-matter jurisdiction, the court must have personal jurisdiction over a
party before it can issue a binding judgment. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.
1996). “[P]ersonal jurisdiction concerns the court’s power to bind a particular person or party.”
Id. The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident
defendant within the provisions of the Texas long-arm statute. TEX. CIV. PRAC. & REM. CODE
ANN. §§ 17.041–.045 (West 2008); BMC Software, 83 S.W.3d at 793. When the plaintiff meets
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this burden, the burden shifts to the nonresident defendant to negate all possible grounds for
personal jurisdiction. BMC Software, 83 S.W.3d at 793; Kawasaki Steel Corp. v. Middleton, 699
S.W.2d 199, 203 (Tex. 1985). The existence of personal jurisdiction is a question of law that
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.). In considering an order granting or denying a special appearance, we may review
a trial court’s findings on disputed factual issues for both legal and factual sufficiency. BMC
Software, 83 S.W.3d at 794. However, when the underlying facts are undisputed or otherwise
established, we conduct a de novo review of the trial court’s order as a question of law. Id.; El
Puerto De Liverpool, S.A. de C.V. v. Servi Mundo Llantero S.A. de C.V., 82 S.W.3d 622, 628
(Tex. App.—Corpus Christi 2002, pet. dism’d w.o.j.); Goodenbour v. Goodenbour, 64 S.W.3d
69, 75 (Tex. App.—Austin 2001, pet. denied); Preussag Aktiengesellschaft, 16 S.W.3d at 113.
In any event, in conducting its review, an appellate court considers all of the evidence in the
record. El Puerto, 82 S.W.3d at 628. Here, we have the clerk’s record, the reporter’s record of
the hearing, and extensive findings of fact provided by the trial court. We review the trial court’s
decision de novo as a question of law.
A Texas court may assert personal jurisdiction over a nonresident defendant only if the
requirements of both the Due Process Clause of the Fourteenth Amendment to the United States
Constitution and the Texas long-arm statute are satisfied. CSR Ltd., 925 S.W.2d at 594. The
Texas long-arm statute gives Texas courts the power to exercise personal jurisdiction over a
nonresident defendant who does business in Texas. Section 17.042. The statute provides a list
of activities that constitute doing business in Texas; however, the list is not exhaustive. The
broad language of the statute reaches “as far as the federal constitutional requirements of due
process will allow.” Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815
S.W.2d 223, 226 (Tex. 1991).
Personal jurisdiction over nonresident defendants is constitutional when two conditions
are met: (1) the defendant has established minimum contacts with the forum state and (2) the
exercise of jurisdiction comports with traditional notions of fair play and substantial justice.
BMC Software, 83 S.W.3d at 795 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
The minimum-contacts analysis requires that a defendant “purposefully avail” itself of
the privilege of conducting activities within Texas, thus invoking the benefits and protections of
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our laws. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). The
“touchstone” of due process analysis is “purposeful availment.” Michiana Easy Livin’ Country,
Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). There are three parts to a “purposeful
availment” inquiry: (1) only the defendant’s contacts with the forum are relevant; (2) the contacts
relied upon must be purposeful rather than random, fortuitous, or attenuated; and (3) the
defendant must have sought some benefit, advantage, or profit by availing itself of jurisdiction.
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007).
The defendant’s activities, whether they consist of direct acts within Texas or conduct
outside Texas, must justify a conclusion that the defendant could reasonably anticipate being
haled into a Texas court. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806
(Tex. 2002) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
Jurisdiction is premised on notions of implied consent that, by invoking the benefits and
protections of a forum’s laws, a nonresident consents to suit there. Michiana, 168 S.W.3d at
785. The quality and nature of the defendant’s contacts with the forum state, rather than their
number, are important in analyzing minimum contacts. Guardian Royal, 815 S.W.2d at 230
n.11.
A defendant’s contacts with a forum state can give rise to either general or specific
jurisdiction. BMC Software, 83 S.W.3d at 795–96; Guardian Royal, 815 S.W.2d at 227–28.
General jurisdiction is present when a defendant’s contacts are continuous and systematic,
permitting the forum to exercise personal jurisdiction over the defendant even if the cause of
action did not arise from or relate to the activities conducted within the forum. CSR Ltd., 925
S.W.2d at 595. General jurisdiction requires a showing that the defendant conducted substantial
activities within the forum, a more demanding minimum-contacts analysis than for specific
jurisdiction. Id.
Specific jurisdiction is present when the cause of action arises from or is related to the
defendant’s contacts with the forum state. Id.; Guardian Royal, 815 S.W.2d at 227. When
specific jurisdiction is asserted, the minimum-contacts analysis focuses on the relationship
among the defendant, the forum, and the litigation. Guardian Royal, 815 S.W.2d at 228.
Specific jurisdiction is established if the defendant’s alleged liability arises out of or is related to
an activity conducted within the forum state. Moki Mac, 221 S.W.3d at 575–76.
As mentioned, the touchstone of the due process analysis is “purposeful availment.”
Minimum contacts would be sufficient to establish personal jurisdiction in this case only if
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appellees purposefully availed themselves of the privilege and benefit of conducting activities
within Texas. Only their contacts are relevant; their contacts must have been purposeful, rather
than random, fortuitous, or attenuated; and their contacts must demonstrate that they sought
some benefit, advantage, or profit in availing themselves of the jurisdiction of Texas. See id. at
575; Michiana, 168 S.W.3d at 784–85.
In Issue One, appellant argues that, by filing motions for sanctions against her, the
appellees made general appearances prior to filing their special appearances and, thus, subjected
themselves to personal jurisdiction in this matter by consent. Under Rule 120a, a special
appearance, properly entered, enables a nonresident defendant to challenge personal jurisdiction
in a Texas court. TEX. R. CIV. P. 120a. Strict compliance with Rule 120a is required, and a
nonresident defendant will be subject to personal jurisdiction in Texas courts if the defendant
enters a general appearance. Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.—Fort Worth
1995, no writ); see also Burger King Corp., 471 U.S. at 472 n.14 (“[T]he personal jurisdiction
requirement is a waivable right.”). However, we do not reach analysis of this issue because our
review of the record contradicts appellant’s assertion. Appellant has misstated the record. The
appellees were not among the parties who filed the motions for affirmative relief cited by
appellant; the Business Defendants were the only ones who filed the motion.
In Issue Two, appellant asserts that the default judgment against appellees admitted all
facts pleaded within her third amended petition, including allegations of alter ego jurisdiction.
Special appearances may properly be granted even after a default judgment is granted. See
Xenos Yuen v. Fisher, 227 S.W.3d 193, 196 (Tex. App.—Houston [1st Dist.] 2007, no pet.);
Lang v. Capital Res. Invs. I & II, LLC, 102 S.W.3d 861 (Tex. App.—Dallas 2003, no pet.).
Appellant attempted to serve appellees by nonresident citation under TEX. R. CIV. P. 108.
Allegations in petitions served under this rule must be sufficient to meet due process
requirements. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 496 (Tex. 1988);
Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 870 (Tex. App.—Houston [1st
Dist.] 1995, no writ). Service of process under Rule 108 does not, in and of itself, confer in
personam jurisdiction. Paramount Pipe, 749 S.W.2d at 495; Herbert, 915 S.W.2d at 870.
Appellant did not meet her initial burden of pleading sufficient allegations to bring
appellees within the provisions of the Texas long-arm statute for either specific or general
personal jurisdiction. Appellant’s third amended petition was devoid of any jurisdictional facts
establishing minimum contacts between appellees and the State of Texas, either continuous and
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systematic or that specifically gave rise to the litigation. We agree with the trial court’s
conclusion that the petition was vague and conclusory regarding jurisdiction. Appellees
specifically complained about this in their motions, their briefs, and at length at the hearing. At
the hearing, appellant’s counsel seemed to acknowledge that the pleadings did not contain
jurisdictional facts: he told the trial court that, as far as the pleadings went, he could not plead
specific facts without the extensive written discovery that he was requesting.
In her third issue, appellant argues that appellees cannot assert a “no alter ego defense”
because “there were no corporate defendants in this case,” only LLCs, and because there must be
at least one corporate defendant before a “no alter ego defense” can be established. Appellant
does not cite any support for this assertion. Actually, Texas courts have applied to LLCs the
same state-law principles for piercing the corporate veil that they have applied to corporations.
McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 590–91 (Tex. App.—Houston [1st Dist.]
2007, pet. denied). Alter ego theory is just one of the ways of piercing the corporate veil.
Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986). Alter ego jurisdiction is a form of
“jurisdictional veil-piercing.” See PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163,
172–75 (Tex. 2007).
We interpret appellant’s third issue to be an argument that alter ego jurisdiction was
established by the facts admitted by the default judgment. However, appellant’s petition did not
establish any basis for extending personal jurisdiction under an alter ego theory. After reviewing
the petition and the arguments that appellant’s counsel made at the hearing on the special
appearance, we interpret appellant’s argument to be that, through a chain of other entities, we can
establish personal jurisdiction over Canyon Sudar Partners, LLC, a Delaware limited liability
company. And that, by reaching Canyon Sudar, we can extend personal jurisdiction to the
appellees as individuals because Grunstein and Forman are managing members of Canyon
Sudar.
As we have said, Texas courts have applied to LLCs the same state-law principles for
piercing the corporate veil that they have applied to corporations. McCarthy, 251 S.W.3d at
590–91. Therefore, we will apply the following principles of law to the Business Defendants in
this case.
Because two corporations are presumptively distinct and separate, the Texas Supreme
Court has held that, to disregard that “corporate fiction” and thus “fuse” the entities for purposes
of jurisdiction, plaintiffs must demonstrate a degree of control by the parent company that
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exceeds the control “normally associated with common ownership and directorship,” by means
of evidence showing that “the two entities cease[d] to be separate.” BMC Software, 83 S.W.3d at
798–99; see also PHC-Minden, 235 S.W.3d at 175 (quoting BMC Software “factors” controlling
assertions of imputed contacts, 83 S.W.3d at 799). Appellant did not meet that burden.
Appellant did not plead or present any basis for imputing the actions of one of the Business
Defendants to another. Appellant also did not plead or present any basis for piercing the veil
between appellees as individuals and the entity of which they were allegedly managing members,
Canyon Sudar Partners, LLC. Jurisdiction over an individual generally cannot be based on
jurisdiction over a corporation with which he is associated unless the corporation is the alter ego
of the individual. Nichols v. Tseng Hsiang Lin, 282 S.W.3d 743, 750 (Tex. App.—Dallas 2009,
no pet.); Wolf v. Summers-Wood, L.P., 214 S.W.3d 783, 790 (Tex. App.—Dallas 2007, no pet.).
The party that seeks to pierce the corporate veil has the burden to show that the corporate entity
should be disregarded. BMC Software, 83 S.W.3d at 798.
Appellant pleaded only that appellees were managing members of Canyon Sudar
Partners, LLC and that Canyon Sudar is the sole member of Svcare Holdings, LLC, which is the
sole member of SavaSeniorCare, LLC, which owns 100% of SSC Equity Holdings, LLC, which
is the sole member of SSC Submaster Holdings, LLC, which owns 100% of the equity of SSC
Greenview Operating Company GP, LLC, which operates the Waco nursing home where
appellant worked and was allegedly injured on the job. The allegation of ownership, standing
alone, is insufficient to establish an alter ego relationship. PHC-Minden, 235 S.W.3d at 175 (A
“subsidiary corporation will not be regarded as the alter ego of its parent merely because of stock
ownership, a duplication of some or all of the directors or officers, or an exercise of the control
that stock ownership gives to stockholders.”) (quoting Gentry v. Credit Plan Corp. of Houston,
528 S.W.2d 571, 573 (Tex. 1975)); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.
1990) (weighing the total dealings of the corporation and the individual) (citing Castleberry, 721
S.W.2d at 272); see also Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 733 (Tex.
App.—Corpus Christi 2006, pet. denied) (“[I]f a corporation’s only contact with the forum is its
ownership of a distinct and separate corporation doing business independently in the forum, no
minimum contacts exist unless the forum contacts of the subsidiary can be attributed to the
parent.”).
Appellant presented no jurisdictional facts to the district court that establish minimum
contacts with Texas. BMC Software, 83 S.W.3d at 795. However, even when there are no
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jurisdictional allegations in a plaintiff’s petition, a defendant must negate all bases of
jurisdiction. Magic House AB v. Shelton Beverage L.P., 99 S.W.3d 903, 909 (Tex. App.—Dallas
2003, no pet.) (citing Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673 (Tex.
App.—Dallas 1993, writ dism’d by agr.)). In such a case, proof that a defendant is a nonresident
is sufficient to meet this burden. Id. Here, appellees filed affidavits in which they assert that
they are nonresidents and in that they also negate all the traditional contacts that could together
form the basis for minimum contacts with the state necessary to establish personal jurisdiction.
Appellees swore that they do not do business in Texas as individuals, own no property in Texas,
have no offices in Texas, have no employees in Texas, have never been to Greenview Manor
Nursing Home, and do not (and did not in April 2005) have an ownership stake in either the
Business Defendants or Greenview Manor.
Appellees also established that Canyon Sudar is a Delaware limited liability company
that has no offices in Texas and that Canyon Sudar did not own or operate Greenview Manor in
April 2005 when appellant claims she was injured. Appellees also negate the possibility of alter
ego by swearing that the Business Defendants have operated as separate entities from Grunstein
and Forman; that Grunstein and Forman do not dominate or control the Business Defendants’
day-to-day operations or internal affairs (and did not do so in April 2005); that Grunstein and
Forman do not direct how the Business Defendants or Greenview Manor take care of nursing
home residents or how they make nurse staffing, hiring, or equipment decisions; and that
Grunstein and Forman are not the jurisdictional alter ego of either Greenview Manor or the
Business Defendants. Appellant did not contest any of the facts in the affidavits. Appellees
effectively negated all bases of jurisdiction.
In Issue Four, appellant argues that appellees had voluntary contacts with the Texas
Secretary of State and the Texas Department of Aging and Disability Services and that these
contacts support a finding of both specific and general personal jurisdiction of the Texas courts.
These contacts were not pleaded by appellant in her third amended petition, but were argued
before the trial court during the hearing on the special appearances.
Appellant alleged that appellees filed an application for registration of SSC Waco
Greenview Operating Company LP with the Texas Secretary of State. However, in her reply
brief, appellant cedes this issue and asks us to disregard it. Appellant acknowledges that the
signature on the application for registration is that of one “Harry Grunstein,” not appellee
Leonard Grunstein, and that there is nothing in the record before the court establishing a
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connection between Harry Grunstein and either of the appellees in this action. Therefore, we do
not address this alleged contact.
Appellant alleged that appellees filed a document entitled “Controlling Party Structure”
with the Texas Department of Aging and Disability Services showing that they were the sole
owners of SSC Waco Greenview Operating Company LP. However, we see nothing in the
record to support this allegation. As appellant’s counsel represented to the trial court at the
hearing, the document is a matter of public record and was printed from the Texas Department of
Aging & Disability Services website. However, it does not indicate that it was filed by
appellees, as appellant alleges. There is nothing in the record to support appellant’s contention
that it was personally filed by appellees. Additionally, the document does not indicate that
appellees, as individuals, were the sole owners of SSC Waco Greenview Operating Company
LP. To the contrary, the document contains the name of a nonparty LLC as the 100% owner of
SSC Waco Greenview Operating Company LP. In their affidavits, appellees aver that they have
no ownership interest in SSC Waco Greenview Operating Company LP. Their assertion is not
negated by anything in the “Controlling Party Structure” document, nor is it otherwise
controverted.
The trial court properly granted appellees’ special appearances, and appellant’s
arguments in Issues One, Two, Three, and Four are overruled.
Denial of Adequate Discovery Time
In Issue Six, appellant argues that the trial court denied her adequate discovery time.
Generally, the scope of discovery is within the trial court’s discretion. In re Colonial Pipeline
Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding); In re BP Prods. N. Am. Inc., 263
S.W.3d 106, 111 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). An appellate court
reviews the issue of “adequate time for discovery” under an abuse of discretion standard.
Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000,
pet. denied). A trial court abuses its discretion if it acts without reference to any guiding rules or
principles. VingCard A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 855 (Tex. App.—
Fort Worth 2001, pet. denied) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985)). In reviewing the trial court’s decision, we must determine whether the trial
court’s action was arbitrary or unreasonable. Id.
The trial court granted appellant’s initial motion for continuance of the hearing on
appellees’ special appearances and allowed appellant time to conduct discovery limited to
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jurisdictional facts. Rather than making discovery demands upon appellees, appellant chose to
depose the administrator of Greenview Manor, Rod Bicford. Appellant served Bicford with a
subpoena duces tecum to furnish eight categories of documents. Bicford produced the docu-
ments and was deposed. However, appellant chose to recess the deposition.
After appellant unilaterally recessed Bicford’s deposition, appellees reset their special
appearance hearing. Appellant did not file a motion to continue that hearing. She also did not
explain, by affidavit or otherwise, what specific jurisdictional discovery she needed, or why she
deposed Bicford rather than appellees. Appellant did not provide the court with an affidavit
stating the reasons why she could not present the facts that were essential to justify her
opposition to the special appearances. See IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 903
(Tex. App.—Eastland 2009, no pet.) (Rule 120a specifically provides that affidavits of the party
opposing the special appearance are the means to obtain a continuance of the special appearance
so that a deposition may be conducted). At the hearing, appellant did not ask to depose appellees
regarding jurisdictional facts. Instead, appellant asked for leave to conduct written discovery to
investigate the ownership structure of over sixty nonparty limited partnership entities. Counsel
did not show how such discovery related to the establishment of minimum contacts between
appellees and the State of Texas. As her reason for failing to plead jurisdictional facts in her
petition, appellant’s counsel told the trial court, “I can’t plead specific facts until I have the facts.
I can only get the facts through discovery.” However, appellant was required to provide the
court with a colorable basis or reason to believe that discovery would reveal sufficient minimum
contacts. Barron v. Vanier, 190 S.W.3d 841, 849–50 (Tex. App.—Fort Worth 2006, no pet.)
(Courts should allow additional time for discovery when “the movant makes a good-faith
showing, provides a colorable basis for, or makes a prima facie case of personal jurisdiction, or
provides a reason to believe that discovery would reveal sufficient minimum contacts.”); see also
Solgas Energy Ltd. v. Global Steel Holdings Ltd., No. 04-06-00731-CV, 2007 WL 1892206 at
*6–7 (Tex. App.—San Antonio July 3, 2007, no pet.) (mem. op.) (trial court did not abuse its
discretion in determining that plaintiff’s alter ego allegation did not entitle it to pursue additional
discovery in an effort to establish an alter ego connection). Appellant did not meet that burden.
The trial court did not abuse its discretion when it denied further jurisdictional discovery by
appellant. Appellant’s sixth issue on appeal is overruled.
Appellees alleged in their brief that appellant’s counsel had failed to serve them with
adequate notice in several respects. Because of this, they contend that they are not subject to the
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default judgment and that it was effectively an ex parte judgment. Because there were
effectively no minimum contacts established by appellant, we did not need to reach the issue of
defective service of process, the applicability of the default judgment to appellees, or the pending
motion for sanctions against appellant in the trial court. We did not consider this information in
reaching our decision. The trial court not only granted appellees’ special appearances, but also
granted the Business Defendants’ motion for summary judgment on appellant’s underlying
negligence claims, identical to the claims asserted against appellees. The Business Defendants
are pursuing motions for sanctions against appellant in a separate cause. For these reasons, we
did not find it necessary or appropriate to address those issues.
The judgment of the trial court is affirmed.
PER CURIAM
May 10, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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