Rodger Zimmerman v. Glacier Guides, Inc. and Jimmie Rosenbruch, Individually--Appeal from County Court at Law No 1 of McLennan County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2004 » Rodger Zimmerman v. Glacier Guides, Inc. and Jimmie Rosenbruch, Individually--Appeal from County Court at Law No 1 of McLennan County

State: Texas

Court: Texas Northern District Court

Docket No: 10-03-00036-CV

Case Date: 11/10/2004

Plaintiff: Oscar Jernigan and Shirley Jernigan

Defendant: E. B. Hoffpauir--Appeal from 241st District Court of Smith County

Preview:Rodger Zimmerman v. Glacier Guides, Inc. and Jimmie
Rosenbruch, Individually--Appeal from County Court
at Law No 1 of McLennan County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-03-00036-CV
RODGER ZIMMERMAN,
Appellant
v.
GLACIER GUIDES, INC., AND
JIMMIE ROSENBRUCH,
Appellees
From the County Court at Law No. 1
McLennan County, Texas
Trial Court # 20020319 CV1
MEMORANDUM OPINION
Rodger Zimmerman filed suit against Glacier Guides, Inc. and its president Jimmie Rosenbruch for unjust enrichment
after Glacier Guides refused to refund nearly $20,000 Zimmerman had paid for an Alaskan hunting trip which
Zimmerman was unable to attend. Zimmerman appeals the granting of Appellees special appearance. We will affirm.
Zimmerman contends in his sole issue that the court erred by granting Appellees special appearance because the
evidence presented at the hearing supports a finding of specific jurisdiction and because the lack of jurisdictional
allegations in his petition is not fatal in view of the evidence presented.
In Lacefield v. Electronic Financial Group, this Court stated, If the plaintiff fails to allege any jurisdictional facts [in
the petition], the defendant satisfies his burden [in a special appearance hearing] by showing that he is a nonresident.
35 S.W.3d 755, 761 (Tex. App. Waco 2000, no pet.) (citing Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434,
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6026.html[8/20/2013 7:19:53 PM]

438 (Tex. 1982); Vosko v. Chase Manhattan Bank, 909 S.W.2d 95, 99 (Tex. App. Houston [14th Dist.] 1995, writ
denied); Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673 (Tex. App. Dallas 1993, writ dism d by
agr.)).
Zimmerman contends that this holding is in conflict with the Supreme Court s decision in Kawasaki Steel Corp. v.
Middleton. 699 S.W.2d 199 (Tex. 1985). There, the Supreme Court held that defective jurisdictional allegations in the
petition . . . must be challenged by a motion to quash, not a special appearance. Id. at 203. However, subsequent
decisions by that Court and others convince us that our statement in Lacefield is correct.
In American Type Culture Collection, Inc. v. Coleman, the Supreme Court recently described the respective burdens of
the parties in a case in which a nonresident defendant files a special appearance as follows:
The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the
provisions of the long-arm statute. But upon filing a special appearance, the nonresident defendant assumes the burden
to negate all the bases of personal jurisdiction alleged by the plaintiff.
83 S.W.3d 801, 807 (Tex. 2002) (citations omitted) (emphasis added). The Dallas Court of Appeals recently observed
that, if there are no jurisdictional allegations in a plaintiff s petition, . . . proof that a defendant is a nonresident is
sufficient to meet this burden. Bruno s Inc. v. Arty Imports, Inc., 119 S.W.3d 893, 897 (Tex. App. Dallas 2003, no pet.)
(citations omitted). Or as the Fourteenth Court of Appeals stated, This standard does not mean that the nonresident
defendant must negate every possible ground in the universe, but rather the acts in Texas alleged by the appellant to
support personal jurisdiction. Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 548 (Tex. App. Houston
[14th Dist.] 2003, no pet.).
Zimmerman concedes in his brief that no jurisdictional facts were specifically alleged in the Petition. Zimmerman
alleges in the petition and Appellees presented evidence by affidavit that they are not Texas residents. Accordingly,
Appellees satisfied their burden to negate all pleaded jurisdictional allegations. See Siskind, 662 S.W.2d at 438; Bruno
s, 119 S.W.3d at 897; Walker Ins. Servs., 108 S.W.3d at 548; Lacefield, 35 S.W.3d at 761; accord Am. Type Culture
Collection, 83 S.W.3d at 807.
Zimmerman s sole issue is overruled. The judgment is affirmed.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna //
(Chief Justice Gray concurring)
Affirmed
Opinion delivered and filed July 7, 2004
[CV06]
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