Rodger Zimmerman v. Glacier Guides, Inc. and Jimmie Rosenbruch, Individually

IN THE TENTH COURT OF APPEALS No. 10-03-00036-CV Rodger Zimmerman, Appellant v. Glacier Guides, Inc. and Jimmie Rosenbruch, Individually, Appellees From the County Court at Law No. 1 McLennan County, Texas Trial Court # 20020319 CV1 CONCURRING Opinion Rodger Zimmerman sued Glacier Guides, Inc., an Alaskan corporation, and Jimmie Rosenbruch, the president of Glacier Guides, individually, for a refund of almost $20,000 Zimmerman paid to Glacier Guides for a hunt that never took place.[1] Glacier Guides and Rosenbruch filed a special appearance. After a hearing, the trial court sustained the special appearance and dismissed the case with prejudice. The following jurisdictional acts[2] alleged by Zimmerman present the best case scenario for his assertion of jurisdiction over Glacier Guides and Rosenbruch: 1. Zimmerman picked up an issue of The Alaskan Professional Hunter in 1997 at a Safari Club Meeting in either Dallas or Houston. 2. In it, he saw what appeared to Zimmerman to be an advertisement for Glacier Guides. 3. Four years later, in 2001, Zimmerman saw Rosenbruch at a convention in Nevada, and while in Nevada, scheduled a hunt and made a down payment of $12,000 toward the total cost of the hunt. 4. Thirty days before the scheduled hunt, Zimmerman received a call from Rosenbruch asking for the remaining balance of approximately $7,000 for which Zimmerman had already written a check and placed in the mail. 5. Zimmerman attended at least twenty conventions in Texas and never saw Rosenbruch at one of those Texas conventions until Rosenbruch was served with this lawsuit at a Houston convention in 2001. Zimmerman does not allege that The Alaskan Professional Hunter was available for subscription or that he had ever received it by subscription. He does not contend that Texas has general jurisdiction over Glacier Guides and Rosenbruch but contends, instead, that specific jurisdiction exists. Applying this best case scenario to the law established by the United States Supreme Court and the Texas Supreme Court, Texas cannot exercise specific jurisdiction over Glacier Guides or Rosenbruch. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-476, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795-797 (Tex. 2002). Thus, the trial court did not err in sustaining Glacier Guides’ and Rosenbruch’s special appearance and dismissing the case with prejudice. Response to New Opinion[3] The Court takes the long way around Lacefield. Lacefield v. Elec. Fin. Group, 35 S.W.3d 755 (Tex. App.—Waco 2000, no pet.). First, I disagree that it says what they now try to make it say. But if that is what it says, it was wrongly decided and should be overruled. See Vega v. State, 84 S.W.3d 613, 625-29 (Tex. Crim. App. 2002) (Keller, P.J., dissenting); State v. Toney, 979 S.W.2d 642, 645-48 (Tex. Crim. App. 1998) (Keller, J., concurring). The entire discussion of stare decisis is not on point because there is no new authority from a higher court or the legislature after Lacefield that causes us to change the result. It was just wrong if we limited the source of the “allegations” to the petition. Finally, the Court’s discussion of, and reliance on, Kawasaki Steel is misplaced. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex. 1985). Kawasaki Steel is about jurisdictional allegations in the context of service of process under the long arm statute. It is not about jurisdiction under Rule 120a. Thus, I concur only in the result reached by the Court. TOM GRAY Chief Justice Concurring opinion delivered and filed November 10, 2004 [1] The ability to make it to the hunt was prevented by the no flight restrictions after September 11, 2001. [2] We pause to briefly note that the term “facts” is used by some courts but the Texas Supreme Court in Siskind uses the term “acts” when discussing jurisdictional allegations. See Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 437-38 (Tex. 1982). We use the term “act” here because it is more precise than the term “fact.” [3] On July 7, 2004, the Court issued an opinion to which I concurred. It was withdrawn on September 1, 2004.