David L. Fretz v. Mary Louise Reynolds--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00854-CV
David L. FRETZ,
Appellant
v.
Mary Louise REYNOLDS,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-13908
Honorable Michael Peden, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED AS MODIFIED

David L. Fretz appeals the trial court's order granting Mary Louise Reynolds's special appearance. (1) Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's order in this memorandum opinion. See Tex. R. App. P. 47.4.

Fretz originally sued Reynolds, his sister, in August of 2001, asserting various causes of action regarding actions Reynolds had taken in regard to a trust created by their mother. The 2001 lawsuit was removed to federal court, and Reynolds asserted that the court lacked personal jurisdiction over her. After a substantial number of responses and replies were filed, United States Magistrate Judge Pamela A. Mathey filed a thirty-six page report and recommendation concluding that the court did not have personal jurisdiction because the exercise of jurisdiction would not comport with traditional notions of fair play and substantial justice. On September 23, 2002, the federal district judge accepted Magistrate Mathey's recommendation and entered a judgment granting Reynolds's motion to dismiss for lack of personal jurisdiction.

Three days later, on September 26, 2002, Fretz filed another petition in state court asserting substantially the same claims but added a claim for specific performance of a contract that he alleges was entered after the 2001 lawsuit was removed to federal court. Fretz also added a claim that Reynolds had not provided him with the original copy of their mother's will.

An order dismissing claims for lack of personal jurisdiction precludes relitigation of the jurisdictional issues that were actually litigated and essential to the dismissal. Nguyen v. Desai, 132 S.W.3d 115, 118 (Tex. App.--Houston [14th Dist.] 2004, no pet.); see also Deckert v. Wachovia Student Financial Services, Inc., 963 F.2d 816, 819 (5th Cir. 1992) (applying collateral estoppel to preclude relitigation of question of personal jurisdiction); Arasco, Inc. v. Glenara, Ltd., 912 F.2d 784, 787 (5th Cir. 1990) (noting state court would be bound by federal court finding of lack of personal jurisdiction on constitutional grounds); Valdez v. Kreso, Inc., 144 F. Supp. 2d 663, 667-68 (N.D. Tex. 2001) (imposing sanctions on attorney who filed lawsuit in federal court asserting similar claims to lawsuit filed in state court which was dismissed for lack of personal jurisdiction). Collateral estoppel precludes the relitigation of the jurisdictional issue even if a new theory of recovery is added so long as the theories arise out of the same nucleus of operative facts. Valdez, 144 F. Supp. 2d at 667; see also Deckert, 963 F.2d at 817 n.5.

Personal jurisdiction over nonresident defendants is established when two conditions are met: (1) the 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. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). In this case, the federal court's order is an adjudication of Reynolds' amenability to suit in Texas based on traditional notions of fair play and substantial justice. Fretz's addition of another specific performance claim and the request for the original copy of his mother's will do not assert issues that affect the jurisdictional determination made by the federal court on the basis of fair play and substantial justice. Accordingly, the federal court's order precluded the relitigation of the jurisdictional issue.

Fretz asserts that the special appearance was waived because Reynolds filed an opposition to his motion to compel arbitration twelve minutes before the special appearance hearing. Reynolds's opposition, however, expressly states that it is "subject to determination of her Special Appearance" and the opposition was filed after the special appearance. Accordingly, the filing of the opposition did not result in waiver. See Tex. R. Civ. P. 120a.

Fretz further asserts that the special appearance was waived because at the end of the hearing the trial court ruled as follows: "The Motion for Arbitration is denied. The Motion for Special Appearance is granted." Fretz contends that because the trial court first addressed the motion for arbitration, Reynolds waived the special appearance. We consider the rulings to be simultaneous and refuse to find waiver on this ground.

Finally, Fretz asserts that Reynolds waived her special appearance by seeking affirmative relief because the order granting the special appearance also provides that the action is dismissed "with prejudice for refiling in any court in the State of Texas" and that Fretz "take nothing." Although we agree this language was improper, the proper remedy is to delete this language so that the order reflects that the trial court "merely sustain[ed] the special appearance and dismisse[d] the claims of [Fretz] for lack of personal jurisdiction." Nguyen, 132 S.W.2d at 119.

The second and third paragraphs of the trial court's order are modified to read as follows:

ORDERED that Defendant's Special Appearance is hereby SUSTAINED, and Plaintiff's suit is DISMISSED.

As modified, the trial court's order is affirmed.

Alma L. L pez, Chief Justice

1. Fretz also states that he is appealing the trial court's order denying his motion to compel arbitration; however, Fretz's brief does not contain any issue relating to this order.