Ambassador Medical, Inc. v. Camacho, Jorge Arredondo

NUMBER 13-99-753-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ AMBASSADOR MEDICAL, INC., Appellant, v. JORGE ARREDONDO CAMACHO, Appellee. ___________________________________________________________________ On appeal from the 197th District Court of Cameron County, Texas. ___________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justices Hinojosa and Yañez Opinion by Justice Yañez Appellant, Ambassador Medical, Inc. ("Ambassador"), an Indiana corporation, appeals an interlocutory order(1) by the trial court denying its special appearance. In two issues, Ambassador contends the trial court erred in overruling its special appearance because: (1) the only evidence before the court negated all bases of personal jurisdiction over Ambassador, and (2) Ambassador had insufficient contacts with Texas to support the exercise of either general or specific jurisdiction as a matter of law. Prior to filing its special appearance, Ambassador filed an answer, thereby making a general appearance. We therefore find Ambassador waived any objection to jurisdiction and affirm the trial court's judgment. Factual and Procedural Background On May 21, 1999, appellee, Dr. Jorge Camacho ("Camacho") filed suit against Ambassador and others,(2) alleging breach of contract, fraud, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act(3) arising out of the sale of certain medical equipment. Camacho claims he agreed, through Jesus Moore III ("Moore"), allegedly acting as Ambassador's agent, to purchase the equipment, but the equipment was not delivered as agreed. On June 28, 1999, Ambassador filed two separate documents by facsimile transmission: (4) a special appearance and an answer. The answer, which recited it was "subject to [Ambassador's] previously filed Special Appearance," was file-stamped June 28 at 11:18 a.m.; the special appearance was file-stamped the same date at 11:26 a.m. The special appearance, supported by affidavit, states Ambassador is a non-resident, maintains no registered agent or place of business in Texas, has no employees, servants or agents in Texas, and has neither engaged in business nor committed any tort in Texas. On August 17, 1999, the trial court held a hearing on Ambassador's motion objecting to jurisdiction. At the conclusion of the hearing, the court requested the parties to submit briefs within ten days. Ambassador filed a letter brief on August 18, 1999; Camacho filed a letter brief on August 27, 1999. Attached to Camacho's brief was a copy of a letter to Camacho's attorney stating the medical equipment was to be delivered to Moore in Brownsville, Texas on a certain date. The letter was printed on paper bearing Ambassador's letterhead and signed by an individual identified as a "sales representative." Camacho contends the letter establishes that, contrary to its denial, Ambassador has "engaged in business" in Texas. On August 31, 1999, Ambassador filed a reply brief, with an attached affidavit of Tina Jasso, a legal assistant at the law office of Ambassador's counsel. The affidavit stated that on June 28th, Jasso filed Ambassador's special appearance by facsimile transmission at 9:12 a.m., confirmed its receipt with the district clerk's office by telephone, and then filed the answer by facsimile at 9:49 a.m. The affidavit further stated that upon returning to her desk, Jasso noticed the confirmation sheet on the special appearance indicated the clerk's office had received only three pages, instead of the correct total of eight pages. Jasso claims she then called the clerk's office again, and was assured all eight pages had been received. Out of an abundance of caution, however, she then made four additional attempts to re-transmit the document: at 9:59 a.m., 10:14 a.m., 11:10 a.m., and 11:28 a.m. On October 28, 1999, the trial court overruled Ambassador's motion, and this interlocutory appeal followed. Camacho contends Ambassador waived any objection to jurisdiction because the 11:18 a.m. file-stamp on the answer shows it was filed before the 11:26 a.m. filing of the special appearance, and thus constituted a general appearance. In the alternative, Camacho argues the trial court's denial of Ambassador's special appearance is proper because the exercise of jurisdiction over Ambassador is consistent with the Texas jurisdictional test and the due process clause. Standard of Review When performing a factual sufficiency review regarding a special appearance, this Court will review all of the evidence before the trial court on the question of jurisdiction. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex. App.--Dallas 1993, writ denied). We review the evidence in the light most favorable to the trial court's ruling. Clark v. Noyes, 871 S.W.2d 508, 511 (Tex. App.--Dallas 1994, no writ). A trial court is entitled to draw reasonable inferences from the evidence before it. Hotel Partners, 847 S.W.2d at 632. When a trial court overrules a special appearance, the defendant should request findings of fact under Texas Rule of Civil Procedure 296. Runnels v. Firestone, 746 S.W.2d 845, 849 (Tex. App.--Houston [14th Dist.]), writ denied per curiam, 760 S.W.2d 240 (Tex. 1988). When, as here, the trial court does not file findings of fact with regard to a special appearance, all questions of fact are presumed to support the judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 802 (Tex. App.--Houston [1st Dist.] 1998, writ denied). A reviewing court must affirm if the judgment can be upheld on any legal theory supported by the evidence. Happy Indus. Corp. v. American Specialties, Inc., 983 S.W.2d 844, 847 (Tex. App.--Corpus Christi 1998, no writ). This is so regardless of whether the trial court articulates the correct legal reason for the judgment. Harrington v. Railroad Comm'n, 375 S.W.2d 892, 895 (Tex. 1964); Fish v. Tandy Corp., 948 S.W.2d 886, 891-92 (Tex. App.--Fort Worth 1997, pet. denied); Marifarms Oil & Gas, Inc. v. Westhoff, 802 S.W.2d 123, 125 (Tex. App.--Fort Worth 1991, no writ). Applicable Law Special appearances are governed by rule 120a of the rules of civil procedure. Rule 120a provides in part: Notwithstanding the provisions of rules 121,(5) 122(6) and 123(7), a special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the court of this State. . . Such special appearance shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance; and may be amended to cure defects. . . Every appearance, prior to judgment, not in compliance with this rule is a general appearance. Tex. R. Civ. P. 120a(1). A defendant challenging personal jurisdiction through a special appearance must strictly comply with rule 120a. Clements v. Barnes, 822 S.W.2d 658, 659 (Tex. App.--Corpus Christi 1991), rev'd on other grounds, 834 S.W.2d 45 (Tex. 1992); International Turbine Serv. v. Lovitt, 881 S.W.2d 805, 808 (Tex. App.--Fort Worth 1994, writ denied); Slater v. Metro Nissan, 801 S.W.2d 253, 254 (Tex. App.--Fort Worth 1990, writ denied). A defendant's answer constitutes an appearance so as to dispense with the necessity for the issuance or service of citation upon him. Tex. R. Civ. P. 121; Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 589 (Tex. App.--Corpus Christi 1994, no writ). By filing an answer, a defendant submits himself to the jurisdiction of the court, even if he was not amenable to process at the time of service. West v. City Nat'l Bank of Birmingham, 597 S.W.2d 461, 464 (Tex. Civ. App.--Beaumont 1980, no writ). The government code provides district courts may, with approval by the supreme court, adopt local rules governing the electronic filing of documents. The applicable sections provide as follows: § 51.803. Supreme Court Regulation and Approval (a) The supreme court shall adopt rules and procedures to regulate the use of electronic copying devices for filing in the courts. (b) An instrument may only be filed as provided by this subchapter if the district, county, or court of appeals has established a system for receiving electronically transmitted information from an electronic copying device, and the system has been approved by the supreme court. A district or county clerk or clerk of a court of appeals who believes there is justification for use of an electronic filing system in the clerk's office must request approval of the system from the supreme court. The supreme court shall approve or disapprove the system and may withdraw approval any time the system does not meet its requirements. § 51.807. Local Rules (a) The courts of a county may adopt local rules that govern the transmission and receipt of documents or reports stored or created in digital electronic or facsimile form and that provide for recognition of those documents as the original record for file or for evidentiary purposes. (b) The rules shall be submitted to the supreme court for review and adoption as a part of the overall plan or procedure for the electronic filing of documents. Tex. Gov't Code Ann. §§ 51.803-805, 51.807 (Vernon 1998). By order signed May 31, 1991, the supreme court approved the "Adoption of Rules for Cameron County for Receiving and Filing Electronically Transmitted Court Documents." The local rules provide in pertinent part: 5. An electronically transmitted document accepted for filing will be recognized as the original record for file or for evidentiary purposes when it bears the clerk's official date and time file stamp. . . . . 9. The clerk upon receipt of an electronically transmitted document shall verify the completeness of the transmission. 10. Thereafter, the documents tendered electronically shall be deemed accepted for filing and the clerk shall affix the clerk's official date and time file stamp to the document. 11. If the transmission is found to be incomplete or court costs or fees, if required, are not paid, the clerk will notify the sender as soon as practicable that the transmission has not been filed and the reason. 12. After filing an electronically transmitted document the clerk will electronically transmit to the sender an acknowledgment of the filing, together with cost receipt, if any. . . . . 14. Electronic transmission of a document does not constitute filing. Filing is complete when the clerk's official date and time file stamp is affixed to the document. 15. Each page of any document received by the clerk will be automatically imprinted with the date and time of receipt. The date and time imprinted on the last page of a document will determine the time of receipt but not time of filing. See Cameron County (Texas) Loc. R. 5, 9,19,11, 12, 14, 15. Supreme Court Order of May 31, 1991, Misc. Docket No. 90-0045, recorded in Minutes of the District Courts of Cameron County, Vol. 339, page 956. Discussion The general rule is that an instrument is deemed legally filed at the time it is left with the clerk, regardless of whether or not a file mark is placed on the instrument and regardless of whether the file mark gives some other date of filing. See Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); Texas Workers' Compensation Comm'n v. Hartford Accident & Indem. Co., 952 S.W.2d 949, 952 (Tex. App.--Corpus Christi 1997, writ denied); Strawder v. Thomas, 846 S.W.2d 51, 58 (Tex. App.--Corpus Christi 1992, no writ). Ambassador relies on Patterson in support for its argument that the special appearance was deemed legally filed when tendered by facsimile to the clerk, and that the actual file-stamps on the documents are not controlling. It points to Jasso's affidavit as evidence the special appearance was filed prior to the answer. Ambassador also offers a hypothetical scenario as an explanation for why the answer bears an earlier file-stamp than the special appearance. According to Ambassador, the deputy clerk "must have" inadvertently file-stamped one of the several subsequently-faxed versions of the special appearance instead of the original, which had been in the clerk's control since it was faxed at 9:12 a.m. Ambassador further notes the court's docket sheet shows the special appearance and answer filed on the same day, June 28, 1999, but lists the special appearance first. In support of the contention that Ms. Jasso made several attempts, after discovering the confirmation sheet, to fax the eight-page special appearance to the clerk's office, Ambassador attached copies of three fax transmittal slips to Ms. Jasso's affidavit. All show transmissions on the morning of June 28, 1999. The first shows transmission of three pages, and reflects a "start time" of 9:09 a.m. The second shows transmission of five pages, with a "start time" of 9:56 a.m. The third shows transmission of six pages, with a "start time" of 10:10 a.m. Because the transmittal slips do not identify documents, but merely reflect that some documents were transmitted at the times reflected on the slips, we conclude they are irrelevant for evidentiary purposes. The record shows that Ambassador's special appearance bears the following fax transmittal information at the top of the page: "Jun-28-99 Mon 11:26 Dale & Klein(8) Fax No. 9566872416 P.03." Page two of the special appearance bears the same notation, except the time states "11:27" and the page number reflects "P.04." Similarly, page three is marked "11:27" and "P.05;" page four is marked "11:27" and "P.06." As noted, the special appearance is file-stamped June 28, 1999 at 11:26 a.m.; the clerk's stamp is signed "Jennifer Reyes, Deputy." At the top of the page of Ambassador's original answer, the following fax transmittal notation appears: "Jun-28-99 Mon 11:18 Dale & Klein Fax No. 9566872416 P.03." Page two of the answer shows "11:18" and "P.04." The answer is file-stamped June 28, 1999 at 11:18 a.m. and the clerk's stamp is signed "Jennifer Reyes, Deputy." Rule 120a mandates strict compliance. Tex. R. Civ. P. 120a; Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.--Fort Worth 1995, no writ). "Once a party enters an appearance by filing an answer without challenging jurisdiction, he is before the court for all purposes." Id. (citing West, 597 S.W.2d at 464). We hold the evidence shows that by filing an answer prior to filing its special appearance, Ambassador made a general appearance and thereby waived any objection to jurisdiction. Tex. R. Civ. P. 120a. Because of our disposition of the special appearance, we need not discuss Ambassador's remaining issues. We AFFIRM the trial court's judgment overruling the special appearance. _____________________________ LINDA REYNA YAÑEZ Justice Publish. Tex. R. App. P. 47.3 Opinion delivered and filed this the 4th day of May, 2000. 1. This Court has jurisdiction to hear this interlocutory appeal pursuant to section 51.014(a)(7) of the civil practices and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 2000). 2. Camacho alleges that a co-defendant, Jesus Moore III, acted as Ambassador's agent. Moore is not involved in this appeal. 3. Tex. Bus. & Com. Code Ann. §§ 17.41-63 (Vernon 1987 & Supp. 2000). 4. Pursuant to the government code, see Tex. Gov't Code Ann. §§ 51.803, 51.807 (Vernon 1998), the Texas Supreme Court, by Order signed on May 31, 1991, approved the "Adoption of Rules for Cameron County for Receiving and Filing Electronically Transmitted Court Documents". See Supreme Court Order of May 31, 1991, Misc. Docket No. 90-0045, recorded in Minutes of the District Courts of Cameron County, Vol. 339, page 956. 5. "An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him." Tex. R. Civ. P. 121. 6. "If the citation or service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a.m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as to require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him." Tex. R. Civ. P. 122. 7. "Where the judgment is reversed on appeal or writ of error for the want of service, or because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed." Tex. R. Civ. P. 123. 8. Dale & Klein, L.L.P is the name of the law firm representing Ambassador.