Marisa Roylene Spears-Stephenson v. Robert W.S. Stephenson

MEMORANDUM OPINION No. 04-07-00708-CV Marisa Roylene Spears STEPHENSON, Appellant v. Robert W.S. STEPHENSON, Appellee From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CI-10412 Honorable Peter Sakai, Judge Presiding Opinion by: Alma L. López, Chief Justice Sitting: Alma L. López, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice Delivered and Filed: February 13, 2008 AFFIRMED Marisa Roylene Spears Stephenson appeals the trial court's order denying her special appearance. We affirm the trial court's order. Background Robert and Marisa were married in September of 2005 while Robert was in the military. Robert returned to his base in Alaska while Marisa continued to live in California. Prior to his marriage, Robert had executed a special power of attorney in favor of his mother and step-father, Luana A. and Michael D. Schneider, giving them authority over Robert's financial affairs. In June of 2006, Robert was deployed to Iraq. Just prior to his deployment, Robert executed a general power of attorney in favor of Marisa, giving her the power to make medical decisions in case he was injured. On November 25, 2006, Robert was injured in Iraq, suffering burns over 70% of his body and requiring his lower left leg to be amputated. Robert was transferred to Brooke Army Medical Center ("BAMC") in San Antonio for treatment. The military paid to transport both the Schneiders and Marisa to San Antonio. On November 28, 2006, Major Lorraine Rowbo, a lawyer from the Judge Advocate General's office at BAMC, was requested to review the powers of attorney and determine who had the authority to make medical decisions for Robert. Rowbo met with the Schneiders and Marisa. Rowbo informed them that Marisa's power of attorney gave her the authority to make medical decisions while the Schneiders' power of attorney gave them the power to control Robert's financial affairs. Due to his injuries, Robert was eligible for Combat-Related Injury and Rehabilitation Pay ("CIP"). CIP is available until an individual receives Traumatic Injury Protection ("TSGLI"), which is a disability insurance benefit solely for the use and benefit of a soldier suffering a traumatic injury and is intended to help get wounded soldiers back on their feet and start their life over. On December 1, 2006, without any discussion with Robert, Marisa applied for the TSGLI benefit using her general power of attorney. The $100,000.00 TSGLI benefit was deposited into Marisa's bank account in California at her request. Robert was not a signatory on this account. Sometime in January of 2007, Marisa left San Antonio and went to live with her mother in Maryland. Robert filed for divorce in Kansas around January 19, 2007. After discovering that he was not being paid CIP because Marisa had applied for and received the TSGLI benefit, Robert sued Marisa in Texas for breach of fiduciary duty, violations of the Texas Theft Liability Act, and conversion. Marisa filed a special appearance, asserting that she does not have sufficient minimum contacts with Texas to be subject to its jurisdiction. After an evidentiary hearing, the trial court denied the special appearance. Standard of Review The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the long-arm statute. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002). Upon filing a special appearance, the nonresident defendant then assumes the burden to negate all the bases of personal jurisdiction alleged by the plaintiff. Id. Whether a court has personal jurisdiction over a defendant is a question of law; however, the trial court frequently must resolve questions of fact before deciding the jurisdictional question. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). On appeal, we review the findings of fact for legal and factual sufficiency. See id. We review the conclusions of law drawn from the findings of fact de novo. Id. at 794. Discussion Texas courts may exercise "in personam jurisdiction over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees." Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The Texas long-arm statute enables Texas courts to exercise jurisdiction over a nonresident defendant that "does business" in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.043-.044 (Vernon 1997); BMC Software Belgium, N.V., 83 S.W.3d at 795. The definition of "doing business" in Texas includes committing a tort in whole or in part in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2) (Vernon 1997). Robert's breach of fiduciary duty and conversion claims satisfy the doing-business requirement for jurisdiction under the Texas long-arm statute. See Moki Mac River Expeditions, 221 S.W.3d at 574-75. Therefore, we need only consider whether the exercise of jurisdiction in this case comports with federal due process limitations. Id. at 575. Federal due process requirements permit the exercise of personal jurisdiction over a nonresident defendant when: (1) the nonresident 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. Id. Minimum contacts are sufficient if the nonresident defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. Id. In determining whether minimum contacts exist, the defendant's contacts must: (1) justify a conclusion that the defendant could reasonably anticipate being haled into a Texas court; (2) be purposeful rather than fortuitous; and (3) show the defendant sought some benefit, advantage, or profit by availing himself of the jurisdiction. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 185 (Tex. 2005); Petrie v. Widby, 194 S.W.3d 168, 174-75 (Tex. App.--Dallas 2006, no pet.). We focus on whether there is a substantial connection between the defendant's contacts and the operative facts of the litigation. Moki Mac River Expeditions, 221 S.W.3d at 585; Petrie, 194 S.W.3d at 175. In this case, the evidence presented at the hearing established that Marisa traveled to Texas and remained in Texas for approximately two months while Robert was being treated at BAMC. Marisa was provided housing at BAMC and received a portion of Robert's base housing allowance which she may have deposited into a bank account she opened in Texas. (1) While residing in Texas, Marisa met with Rowbo who explained the authority given to Marisa under the general power of attorney. Although Marisa denies that Rowbo told her that the Schneiders' power of attorney gave them the authority to handle Robert's financial affairs, Rowbo testified that she so informed Marisa. Robert testified that Marisa never discussed applying for the TSGLI benefit with him. Nevertheless, at the wounded warriors' office in the basement of BAMC, Marisa completed the application for the TSGLI benefit using her general power of attorney and requested that the funds be deposited into her bank account in California. Marisa subsequently left Texas without informing Robert that she had applied for and received the TSGLI benefit and had at least 80% of that money remaining in her bank account. Through these purposeful contacts, Marisa "should have realized the consequences of having [taken these actions] in Texas could reasonably lead to her being haled into court in Texas." Petrie, 194 S.W.3d at 175. The fact that Marisa took these actions while physically present in Texas is significant. See Stein v. Deason, 165 S.W.3d 406, 415 (Tex. App.--Dallas 2005, no pet.). Marisa's actions are vastly different than the isolated telephone calls, single sales or marketing efforts typically analyzed in these types of cases. See Moki Mac River Expeditions, 221 S.W.3d at 576-79; Michiana Easy Livin' Country, Inc., 168 S.W.3d at 784-88. The allegations and evidence presented at the hearing support the trial court's implied finding that Marisa purposefully established minimum contacts with Texas so that specific jurisdiction exists. With regard to whether the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice, we consider 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 fundamental substantive social policies. See Stein, 165 S.W.3d at 412. Only in rare cases will the exercise of jurisdiction not comport with fair play and substantial justice when specific jurisdiction has been established. See id. In this case, although Marisa will be required to travel to Texas for trial, the fact that she resides out-of-state is not persuasive. See id. at 415. Texas's interest in adjudicating the dispute is significantly strong, especially considering the vulnerable nature of wounded soldiers seeking treatment at BAMC. For this same reason, jurisdiction in Texas would be supported by the shared states' interest in furthering fundamental substantive social policies. Texas's interest also is strengthened by the fact that Marisa was personally present in the State when she is alleged to have committed the tort which also makes Texas an efficient forum to resolve the controversy. See id.; see also Petrie, 194 S.W.3d at 176. Accordingly, the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. Conclusion The trial court's order is affirmed. Alma L. López, Chief Justice 1. Luana Schneider testified that Marisa had opened such an account although Marisa denied opening an account in Texas.