in the Interest of T.J.W. , 336 S.W.3d 267 ( 2010 )

OPINION
No. 04-10-00010-CV
IN THE INTEREST OF T.J.W.
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 07-0554-CV
Honorable Gary L. Steel, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 24, 2010
REVERSED AND RENDERED
Timothy Washington appeals the trial court’s orders denying his special appearance and
confirming an arrearage judgment against him. Because we conclude the trial court erred in
denying Washington’s special appearance, we reverse the trial court’s order and dismiss the
underlying cause. 1
BACKGROUND
Timothy Washington and Zina Shellman are the parents of T.J.W., who was born in
Louisiana on February 28, 1991. Washington and Shellman were never married. Washington,
who is in the military, has never resided in Texas. Shellman moved to Texas with T.J.W. in
1
Because Washington’s third issue is dispositive of the appeal, we do not address any of the other issues raised in
his brief. See TEX. R. APP. P. 47.1.
04-10-00010-CV
2006. In March of 2007, Shellman filed a petition to adjudicate T.J.W.’s parentage and
requested the court to enter an order for child support, including retroactive child support.
Washington was served with process in July of 2008. After denying Washington’s special
appearance in September of 2008, the trial court signed an order confirming that Washington
owed $25,000 in child support arrearages.
DISCUSSION
In his third issue, Washington contends the trial court erred in denying his special
appearance because the evidence did not show that he had sufficient minimum contacts with
Texas to support the exercise of personal jurisdiction over him. Whether a court has personal
jurisdiction over a defendant is a question of law. BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). However, the trial court frequently must resolve questions of fact
before deciding the jurisdiction question. Id. When a trial court does not issue findings of fact
and conclusions of law with its special appearance ruling, all facts necessary to support the
judgment and supported by the evidence are implied. Id. at 795. When the appellate record
includes the reporter’s and clerk’s records, these implied findings are not conclusive and may be
challenged for legal and factual sufficiency in the appropriate appellate court. Id.
Federal constitutional requirements of due process limit the power of a state to assert
personal jurisdiction over a nonresident defendant. In re S.A.V., 837 S.W.2d 80, 85 (Tex. 1992);
In re Barnes, 127 S.W.3d 843, 848-49 (Tex. App.—San Antonio 2003, orig. proceeding). To
satisfy due process, the plaintiff must first show that the nonresident defendant has purposely
established “minimum contacts” with the forum state. In re S.A.V., 837 S.W.2d at 85; In re
Barnes, 127 S.W.3d at 849. The plaintiff must then show that the assertion of jurisdiction
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04-10-00010-CV
comports with fair play and substantial justice. In re S.A.V., 837 S.W.2d at 85; In re Barnes, 127
S.W.3d at 849.
In order for a nonresident defendant to have purposely established “minimum contacts”
with Texas, a substantial connection must exist between the nonresident defendant and Texas
arising from action or conduct of the nonresident defendant purposefully directed toward Texas.
In re S.A.V., 837 S.W.2d at 85. The contacts between the nonresident defendant and Texas must
be continuous and systematic. Id. This requires a showing of substantial activities by the
nonresident defendant in Texas. 2 Id.
The evidence presented at the special appearance hearing established the following
contacts between Washington and Texas. First, Washington contacted the military services in
Texas on one occasion to request information as to whether T.J.W. was being mentally and
physically abused, and the military services subsequently contacted child protective services.
Second, Washington established a joint bank account in his and T.J.W.’s names at USAA
Federal Savings Bank in Texas. Washington deposited money into the account which was spent
by T.J.W. Third, Washington completed a form on two occasions that was faxed to Texas in
order for T.J.W. to obtain a military ID card. Finally, Washington paid Shellman child support
payments while Shellman was residing in Texas.
We initially note that a nonresident mailing checks in payment of an obligation to a
person or company in Texas is not a sufficient contact to establish personal jurisdiction. See U-
Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 763 (Tex. 1977); Alenia Spazio, S.p.A. v. Reid,
2
Although minimum contacts analysis has been refined into specific and general jurisdiction, we agree with
Washington that only general jurisdiction applies in this case. When specific jurisdiction is asserted, the alleged
injuries must arise out of or relate to the nonresident defendant’s contacts with the forum state, and a substantial
connection must exist between those contacts and the operative facts of the litigation. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985); Spir Star AG v. Kimich, 310 S.W.3d 868, 874 (Tex. 2010). Because Shellman
has pled no injuries or cause of action related to or arising out of Washington’s contacts with Texas, specific
jurisdiction is inapplicable.
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04-10-00010-CV
130 S.W.3d 201, 213 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). In addition, making
deposits into a Texas bank account, if considered in isolation, has also been held insufficient to
establish purposeful availment. Haddad v. ISI Automation Intl., Inc., No. 04-09-00562-CV, 2010
WL 1708275, at *6 (Tex. App.—San Antonio Apr. 28, 2010, no pet.) (mem. op.). Moreover,
faxing a form to Texas does not establish minimum contacts. See Reid, 130 S.W.3d at 213.
Even when all of Washington’s contacts are considered together, we hold that there are not
sufficient purposeful, continuous, and systematic contacts between Washington and Texas to
establish personal jurisdiction. See In re S.A.V., 837 S.W.2d at 85. We note that several cases
have held that visits by a nonresident father with a child in Texas were insufficient to establish
personal jurisdiction. See In re Henderson, 982 S.W.2d 566, 567 (Tex. App.—Amarillo 1998,
no pet.); Cunningham v. Cunningham, 719 S.W.2d 224, 228 (Tex. App.—Dallas 1986, writ
dism’d); Ford v. Durham, 624 S.W.2d 737, 740 (Tex. App.—Fort Worth 1981, writ dism’d).
The contacts by Washington in the instant case are far less substantial than the contacts in those
cases. Because the evidence fails to establish a substantial connection between Washington and
Texas arising from actions Washington purposefully directed toward Texas, the trial court erred
in denying the special appearance.
CONCLUSION
The trial court’s order denying Washington’s special appearance is reversed, and the
underlying cause is dismissed.
Phylis J. Speedlin, Justice
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