author: Justice LANG.

text:
    Thomas E. LEWIS, an individual, Appellant v. INDIAN SPRINGS LAND CORPORATION, a Nevada corporation, Indian Springs Investment Partners, Ltd., a Texas limited partnership, and Indian Springs Joint Venture, a Texas joint venture, Appellees.
    No. 05-05-00528-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 8, 2005.

      R. Larry Macon, Edward S. Koppman, AMn, Gump, Strauss, Hauer & Feld, L.L.P., and Aamer Ravji, Bickel & Brewer, Dallas, for Appellant.
    Eric N. Whitney, Greenberg Traurig, LLP, Dallas, for Appellee.
    Before Justices WHITTINGTON, FRANCIS, and LANG.
   OPINION

Opinion by

Justice LANG.

In this accelerated, interlocutory appeal, appellant Thomas E. Lewis (“Lewis”) chai-lenges the trial court’s order overruling his special appearance. See Tex. Crv. PRac. & Rem.Code Ann. § 51.04(a)(7) (Vernon Supp. 2004-2005). The action below was initiated when appellees sued Lewis, a resident of Florida, respecting his distribution of funds of Indian Springs Land Corporation (“ISLC”). At the time of the distribution of funds, Lewis was president and a shareholder of ISLC.

The relationship of the parties spanned several years and involved a series of business transactions culminating in Lewis’s distribution of funds in payment of certain of ISLC’s promissory notes. The claims asserted by appellees which challenge Lewis’s distribution of funds include breach of contract, breach of fiduciary duty, conversion, fraud, misappropriation of funds, and statutory theft. For the following reasons, we conclude that Lewis is subject to specific jurisdiction in Texas. The trial court’s order is affirmed.

I. The Parties and Participants

Appellee, Indian Springs Investment Partners, Ltd. (“ISIP”), is a Texas real estate development partnership. Its principal place of business is in Addison, Texas. Lewis, a Florida resident, is an attorney and real estate developer. He is a limited partner in ISIP, as is Daryl Sna-don (“Snadon”), a Texas resident and real estate developer. Beltway Development Corporation (“Beltway”), a Texas corporation, is the general partner of ISIP. Another appellee, Indian Springs Joint Venture (“ISJV”), a Texas joint venture, has its principal place of business in Addison, Texas. The venturers include Lewis, Sna-don, James Durbin (“Durbin”), a Texas resident and real estate developer, and ISIP. Appellee ISLC, is a closely-held, Nevada, S-corporation. Appellees assert ISLC’s principal executive office is in Addison, Texas. ISLC’s shareholders are Lewis, Snadon and Durbin. ISLC holds a 99% interest in ISJV with ISIP holding the remaining 1%.

II. Factual Background

a. Overview of the Business Transactions

The record reflects a series of business transactions, involving Lewis, appellees and others, which date from 1997 and which culminated in the challenged disbursement of ISLC’s funds by Lewis in 2004. These transactions related to the acquisition and development of a tract of residential real estate located in Los An-geles County, California (“California Property”). . The participants, in particular Lewis, Snadon and Durbin, consulted with various attorneys and accountants, to form strategies for the profitable development and ultimate sale of the California Property. As discussed below, the transactions included the transfer and assignment by Lewis, Snadon, and Durbin of their respective individual interests in several corporations, joint ventees and partnerships, which held some interest in the California Property, in return for a series of promissory notes payable to each of them at various intervals. The challenged payment made by Lewis of some of the promissory notes was funded from the proceeds of the sale of the California Property.

b. History of the Business Transactions

Lewis met Snadon in Aspen, Colorado, in the 1970’s. They became good friends.

In 1997, Snadon entered into ISJV with a California citizen, Colleen Welter, and a California corporation, Chatsworth Ridge Estates, Inc. (“CRE”). Snadon, through ISJV, invested millions of dollars to acquire the California Property. CRE owned 10%, Welter owned 40%, and Sna-don owned 50% of ISJV. In 1998, Snadon transferred a 2.5% interest to Durbin, leaving himself with a 47.5% interest in ISJV.

In August of 1999, Snadon shared with Lewis his concern over his investment in the ISJV California Property. Soon thereafter, Snadon was diagnosed with cancer and began receiving treatments. Due to this illness, Snadon could no longer manage some of his businesses. Lewis volunteered to help Snadon with his California Property and visited him on September 24, 1999, in Houston, Texas. After numerous subsequent telephone discussions, Lewis met with Snadon November 12-15, 1999, in Dallas, Texas, to discuss the development of the California Property, the role he could play in the project, and the general financial terms of his participation. The provisions of Lewis’s financial and partnership interests relative to the California Property were negotiated and documented over the years by Lewis, Snadon, and Dur-bin through telephone conferences, personal meetings, and numerous other communications between Texas, Florida, California, and Colorado.

In September of 1999, Snadon transferred his remaining 47.5% interest in ISJV to ISIP. On December 1, 1999, Sna-don gave Lewis a power of attorney to act for him and execute legal documents on his behalf regarding the California Property. In January of 2000, Snadon assigned one-half of his 99% ownership in ISIP to Lewis.

On January 5, 2001, CRE and Welter transferred their combined 50% interest in ISJV to Snadon. On January 6, 2001, Snadon transferred 25% of ISJV to Lewis and entered into a Amended and Restated Joint Venture Agreement. After that transfer, the ownership of ISJV was ISLP 47.75%, Durbin 2.5%, Snadon 25% and Lewis 25%.

On November 11, 2001, ISLC was incorporated in Nevada, and the shareholders elected S-corporation treatment for federal tax purposes. According to appellees, its principal executive offices were in Addison, Texas. According to Lewis, the principal offices of ISLC were in Miami, Florida.

On January 1, 2002, Lewis was assigned a 48.75% interest in Creekview Phase I, G.P., L.L.C. (“Creekview”), a Texas limited liability company. Creekview’s principal place of business was in Addison, Texas. Also, in January of 2002, Snadon, Lewis, Durbin, and ISIP transferred their interests in ISJV to ISLC in exchange for promissory notes. On January 31, 2002, through an assignment of interests, ISLC became a party to the joint venture agreement and assumed a 99% interest in ISJV with ISIP retaining a 1% interest. On February 14, 2003, Lewis, Snadon and Durbin assigned their interests in Creek-view to ISLC in exchange for a $2.2 million dollar promissory note that was payable in Addison, Texas, and governed by the laws of Texas.

According to the record, over several years, Lewis, Snadon, and Durbin, worked to develop the California Property and Snadon made additional cash infusions into it. Then, on October 21, 2002, ISJV and Indian Falls Joint Venture (“IFJV”), yet another Texas joint venture, with its principal place of business in Addison, Texas, sold the California Property to Toll Brothers, Inc. (“Toll Brothers”), a Pennsylvania corporation. The terms of the sale included a cash payment along with a promissory note, which was secured by a deed of trust. On May 3, 2003, ISJV assigned its rights under the deed of trust and promissory note to ISLC.

c. Factual Allegations for Claims

Our analysis now moves to 2004. At this time, ISLC held all right, title and interest in the deed of trust and promissory note payable by Toll Brothers generated by the sale of the California Property. However, ISLC was obligated on the series of promissory notes due to Snadon, Lewis, Durbin, and ISIP which were exchanged for their interests in ISJV and Creekview.

The specific facts alleged in support of the claims brought by appellees against Lewis are the following. On August 12, 2004, Lewis, who was then acting as President of ISLC, negotiated and obtained an agreement whereby Toll Brothers made a partial payment on the promissory note payable to ISLC of $9,307,982.68. Lewis directed Toll Brothers to make the payment to ISLC’s Miami bank account on which he was a signatory. Lewis then distributed $3,578,140.79 of that money into his personal Florida bank account and sent six checks to Dallas. Three of the checks were payable to Snadon totaling $3,582,730.29, two were payable to Durbin totaling $185,628.82, and one was payable to Beltway in the amount of $23,517.94. In correspondence dated August 25, 2004, Lewis told Snadon and Durbin that these checks were payments by ISLC of principal and interest due on: (1) the January 2002 promissory notes, made payable to Snadon, Lewis, Durbin, and ISIP when they transferred their interest in ISJV to ISLC, supra note 3; and (2) the February 2003 promissory note made payable to Lewis, Snadon, and Durbin when they assigned their interests in Creekview to ISLC, supra note 4.

Appellees claim Snadon and Durbin had no knowledge that Lewis negotiated the prepayment until their checks were received. Upon receipt of these checks, Sna-don and Durbin, notified Lewis that he had improperly distributed these funds. They claimed Lewis deliberately ignored other debts that should have been paid, in particular certain alleged obligations payable to Snadon to reimburse his advances for development of the California Property. Finally, they demanded that Lewis return the money to ISLC. Lewis’s refusal to return the funds resulted in the filing of the underlying lawsuit against Lewis, where appellees allege contract and tort claims.

d. Special Appearance to Appellees Lawsuit

Lewis responded to the suit by filing a special appearance claiming that he is not subject to personal jurisdiction in Texas. The parties submitted documents, affidavits, and deposition excerpts in support of their jurisdictional claims. After submission of the special appearance to the trial court, an order was signed which denied the special appearance. No basis-for the ruling was specified in the order. Findings of fact and conclusions of law were not requested, nor filed.

III. Contentions on Appeal

On appeal, Lewis argues that the trial court erred in denying his special appearance. It is his contention that there are insufficient Texas contacts to support personal jurisdiction because, in particular: (1) he is a Florida resident; (2) served as president of ISLC, a Nevada corporation; (3) that corporation received the contested funds in Florida from Toll Brothers, a debtor located in Pennsylvania; and (4) he was acting in his capacity as president of ISLC, when he issued checks from a Florida bank account to acknowledged creditors of ISLC, some of whom lived in Texas.

On the other hand, appellees assert that the trial court’s denial of the special appearance should be affirmed because Lewis has failed to meet his burden to negate all bases for the court’s exercise of personal jurisdiction. Further, appellees posit that the exercise of personal jurisdiction over Lewis fully satisfies the requirements of Texas law and constitutional due process for both general and specific jurisdiction. In particular, they argue there is specific jurisdiction, at least as to the tort claims they allege against Lewis, under the so-called “effects” theory based upon the opinion of the United States Supreme Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).

IV. Standard of Review

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provision of the Texas long-arm statute. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). A nonresident defendant challenging personal jurisdiction through a special appearance carries the burden of negating all bases of personal jurisdiction. Id. Whether a court has personal jurisdiction over a defendant is a question of law. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-806 (Tex.2002)(citing BMC Software, 83 S.W.3d at 794). In resolving this question of law, a trial court must frequently resolve questions of fact. Coleman, 83 S.W.3d at 806 (citing BMC Software, 83 S.W.3d at 794). Appellate courts review the trial court’s factual findings for legal sufficiency and review the trial court’s legal conclusions de novo. BMC Software, 83 S.W.3d at 794. Where the record contains no findings of fact and conclusions of law, we must imply all findings of fact necessary to support the trial court’s findings that are supported by the evidence. Id. at 795.

V. In Personam Jurisdiction

The Texas long-arm statute permits Texas courts to exercise jurisdiction over a nonresident defendant that does business in Texas. See Tex. Civ. Peac. & Rem.Code Ann. § 17.041 -.045 (Vernon 1997). The long-arm statute defines “doing business” as: (1) contracting by mail or otherwise with a Texas resident with performance either in whole or in part in Texas; (2) commission of a tort in whole or in part in Texas; (3) recruitment of Texas residents directly or through a intermediary located in Texas; or (4) performance of any other act that may constitute doing business. Id. The broad language of the long-arm statute permits Texas courts to exercise jurisdiction “as far as the federal constitutional requirements of due process will permit.” BMC Software, 83 S.W.3d at 795.

Personal jurisdiction over nonresident defendants meets the due process requirements of the Constitution 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, 83 S.W.3d at 795 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Personal jurisdiction exists if the nonresident defendant’s minimum contacts give rise to either general or specific jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); BMC Software, 83 S.W.3d at 795-796. General jurisdiction is present when the defendant’s contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software, 83 S.W.3d at 796; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). In contrast, specific jurisdiction is established if the nonresident defendant’s alleged liability arises from or is related to activity conducted within the forum. BMC Software, 83 S.W.3d at 796. The minimum contacts analysis for specific jurisdiction focuses on the relationship among the defendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868; Schlobohm, 784 S.W.2d at 357; Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790 (Tex.2005).

The “touchstone” of jurisdictional due process analysis is “purposeful availment.” Michiana, 168 S.W.3d at 784 (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). “[I]t is essential in each case that there be some act by which the defendant ‘purposefully avails’ itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Michiana, 168 S.W.3d at 784 (quoting Hanson, 357 U.S. at 253, 78 S.Ct. 1228).

The Texas Supreme Court has recently addressed the proper application of the concept of “purposeful availment” outlining three important aspects to be considered. First, it is only the defendant’s contacts with the forum that count: purposeful availment “ensures that a defendant will not be haled into a jurisdiction solely as a result of ... the ‘unilateral activity of another party or a third person.’ ” Michiana, 168 S.W.3d at 785 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Second, the acts relied upon must be “purposeful” rather than “random, isolated or fortuitous.” Michiana, 168 S.W.3d at 785 (quoting Keeton v. Hustler Magazine Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Third, a defendant must seek some benefit, advantage or profit by “availing” itself of the jurisdiction. By invoking the benefit and protections of a forum’s laws, a nonresident consents to suit there. Michiana, 168 S.W.3d at 785 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). It was noted by the court that a nonresident may purposefully avoid a jurisdiction, rather than purposefully avail itself of a jurisdiction, by structuring its transactions so as neither to profit from the forum’s laws, nor be subject to its jurisdiction. Michiana, 168 S.W.3d at 785 (citing Burger King, 471 U.S. at 473, 105 S.Ct. 2174).

In Michiana the Texas Supreme Court also discussed the “effects jurisdiction” concept of specific jurisdiction that has developed based on Calder v. Jones Calder, 465 U.S. at 788-89, 104 S.Ct. 1482; Michiana, 168 S.W.3d at 789. Appellees urge us to apply here this “effects jurisdiction” concept. They cite, IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir.1998), asserting that “effects jurisdiction” exists where there is: (1) intentional wrongdoing; (2) aimed at a resident of the forum; (3) where the brunt of the harm occurs. However, Calder is interpreted by the Texas Supreme Court as turning not only on the direction of the nonresident’s intentional actions toward the forum of the resident, but, importantly, on facts reflecting a “substantial presence” in the forum. Specifically, they noted that the allegedly defamatory article was published in the defendant’s newspaper and more than 600,000 copies of the publication were delivered into California, the forum state. The Texas Supreme Court concluded “... there was no question the defendant’s article constituted a substantial ‘presence’ in the State.” Michiana, 168 S.W.3d at 789.

Additionally, the decision in Michiana confirmed the rule that jurisdiction must turn on defendant’s contacts, not where it “directed a tort.” In so doing, it expressly disapproved of cases holding that (1) specific jurisdiction is necessarily established by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas number, or (2) specific jurisdiction turns on whether a defendant’s contacts were tortious, rather than the contacts themselves. Id. at 792-93. Further, the court concluded that the analysis of whether the “tortfeasor knows that the brunt of the injury will be felt by a particular resident in the forum state” is not the operative core of the test. Id. at 788-89. Such “foreseeability is not a sufficient benchmark for exercising personal jurisdiction.” Id. at 789 (citing Burger King, 471 U.S. at 474, 105 S.Ct. 2174).

The rules prescribed in Michiana have general application for Texas courts regarding Texas “long-arm” jurisdiction. However, the Texas Supreme Court addressed a narrow question: “whether suit can be brought in Texas based on a nonresident’s alleged misrepresentations in a telephone call with a Texas resident.” Id. at 784. The Burger King opinion, which is at the heart of the Texas Supreme Court’s analysis in Michiana, addressed a broader fact situation. Those facts reflected a lengthy history of contacts by the defendant with the forum state. That court found jurisdiction in Florida over a Michigan resident in a franchise agreement breach of contract case. The parties relationship included a history of negotiations between Michigan and Florida, a course of dealings by those parties involving both states, and contacts with the forum state, Florida, over a period of 20 years. In particular, that court recognized that the franchisee, Rudzewicz, “reached out beyond” his home state, Michigan. Burger King, 471 U.S. at 479-82, 105 S.Ct. 2174. The court highlighted the significance of the long term contractual relationship in evaluating purposeful availment as follows:

a “contract” is “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” (quoting Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316-17, 63 S.Ct. 602, 87 L.Ed. 777 (1943)) It is these factors— prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.

471 U.S. at 479, 105 S.Ct. 2174; see also Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 665 (Tex.1987).

The Texas Supreme Court also observed the importance of facts relative to contractual relationships in evaluation of jurisdiction.

Business contracts are generally a matter of physical fact, while tort liability (especially in misrepresentation cases) turns on what the parties thought, said, or intended. Far better that judges should limit their jurisdictional decisions to the former rather than involving themselves in trying the latter.

Michiana, 168 S.W.3d at 791.

Finally, in addition to minimum contacts, the exercise of personal jurisdiction must comport with traditional notions of fair play and substantial justice. BMC Software, 83 S.W.3d at 795. The following factors are considered in making that determination: (1) the burden on the nonresident defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiffs 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 substantive social policies. World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. 559; Guardian Royal Exchange Assur., Ltd. v. English China Clays, 815 S.W.2d 223, 231 (Tex.1991).

VI. Analysis

a. Purposeful Availment

In order to evaluate the facts respecting whether the claims made against Lewis arise from or are related to activity conducted within Texas, we focus on the “touchstone” of due process, “purposeful availment” as prescribed in Michiana, 168 S.W.3d at 785. Our considerations as to the existence of specific jurisdiction turn on Lewis’s contacts, not whether his contacts were tortious or where he knew the brunt of the injury would be felt. Id. at 788-89.

The first factor described in Michiana as relevant in evaluating purposeful availment is the defendant’s contacts with Texas. Id. at 785. We must ascertain whether Lewis’s contacts were the result of the “unilateral activity of another person or a third party.” Id. The record reflects that Lewis had extensive contacts which he voluntarily made with the forum.

These contacts began because of Lewis’s involvement in developing the California Property with Snadon and culminated, at least for our analysis, with the contested disbursement of ISLC’s funds. Lewis entered into a partnership, ISIP, and a joint venture, ISJY, organized under Texas law and based in Texas, with Texas citizens. He conveyed his interests in those and other entities, such as Creekview, to ISLC, and now claims entitlement to millions of dollars from promissory notes made payable to his order by ISLC. Importantly, at least one of those promissory notes was executed on February 14, 2003, by ISLC and made payable in Dallas, Texas, in the principal amount of $2.2 million to Lewis, Snadon, and Durbin. The provisions of that promissory note are governed by Texas law. According to Lewis’s correspondence to Snadon, the contested distribution of ISLC funds by Lewis includes a payment on this promissory note, not only to him in the amount of $1,154,186.30, but also to Snadon and Durbin. Lewis’s payment was delivered into his account in Florida, while Snadon’s and Durbin’s payments were made by check and sent to Texas.

Lewis is a founder, shareholder, and owner of companies organized under Texas law. Also, he was president and a shareholder in ISLC, a Nevada corporation. The evidence reflects ISLC had Texas shareholders, and directors, and had its “principal executive offices” in Texas, at least in 2004, when the disbursement of the Toll Brothers funds occurred.

Over the period of five years relevant to this proceeding, Lewis traveled to Texas at least five times to negotiate and manage his Texas-based business interests involved in this suit and he communicated extensively regarding those interests in writing, electronically, and by telephone with his Texas business associates, including Snadon and Durbin, and their advisors. He exercised powers of attorney granted by Snadon, a Texas citizen, and he has executed numerous legal instruments governed by Texas laws, including, assignments of interests, and partnership and joint venture agreements.

Additionally, as part of our analysis of the first factor in Michiana, we address Lewis’s argument that any Texas contacts by him were not in his individual capacity and, therefore, may not be used as a basis for the exercise of personal jurisdiction. Id. Lewis refers to this as the “fiduciary shield doctrine.” However, the Texas Supreme Court has never specifically recognized the fiduciary shield doctrine, and the Texas Courts of Appeals have applied the doctrine only on questions of whether general jurisdiction existed over nonresidents. See Siskind v. Villa Found. For Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982); Morris v. Kohls-York, 164 S.W.3d 686 (Tex. App-Austin 2005, pet. dism’d); SITQ E.U., Inc. v. Reata Restaurants, Inc., 111 S.W.3d 638, 651 (Tex.App.Fort Worth 2003, pet. struck). Further, corporate officers are not shielded from the exercise of specific jurisdiction for fraudulent or tortuous acts for which they may be Hable. Calder, 465 U.S. at 790, 104 S.Ct. 1482; SITQ, 111 S.W.3d at 651; Tuscano v. Osterberg, 82 S.W.3d 457, 467-68 (Tex.App.-El Paso 2002, no pet.). We cannot conclude that his contacts with Texas did not include those made in his individual capacity. The record reflects that Lewis’s contacts with the forum in this case were both in his capacity as an officer and director of Texas-based corporations, including ISLC and Creekview, as well as individually as a partner and venturer in Texas-based entities, including ISIP, and ISJV.

On this record, we cannot conclude that Lewis’s alleged conduct was limited to Florida, Nevada, Colorado, and California, as he claims. Nor, can we conclude his conduct in Texas was the result of the “unilateral activity of another party or a third person.” Michiana, 168 S.W.3d at 785. The record reflects a “substantial ‘presence’ ” of Lewis in the State of Texas. Id. at 789.

Addressing the second Michiana factor, we consider whether Lewis’s conduct was “purposeful” rather than “random, isolated or fortuitous.” Id. Appellees contend Texas has “effects jurisdiction” based on assertions that Lewis surreptitiously negotiated a substantial advance payment from Toll Brothers on the promissory note, improperly diverted ISLC funds by receiving that payment and depositing it into ISLC’s Florida bank account, and then improperly allocated those funds, which allegedly damaged Texas residents. However, the Texas Supreme Court in Michiana directs that we not attempt to evaluate jurisdiction on the basis of whether a defendant “directed a tort” toward a Texas party, or knew “that the brunt of the injury would be felt by a particular resident” in Texas. Id. at 788-91. Since tort HabiHty tends to be founded upon “what the parties thought, said, or intended,” an evaluation of where the tort was “directed” may cause a court to stray from evaluating physical facts. Id. at 791. Accordingly, we will not focus upon: (1) the characterization of Lewis’s conduct as surreptitious or fraudulent or the merits of such claims; or (2) whether Lewis’s conduct was “directed,” or aimed at Texas, or the “effects” were in Texas.

It is important to observe again that the receipt and disbursement of the funds received from Toll Brothers was but a part of Lewis’s extensive business transactions and activities related to the forum respecting the California Property. Those activities began with a meeting in Texas in 1999 about the California Property, and culminated in the collection of the prepayment from Toll Brothers and disbursement of the proceeds of the sale of the California Property in August of 2004. Subsequent to that initial meeting in 1999, Lewis engaged in the above enumerated transactions, meetings, conversations, and conveyances with Snadon, Durbin, ISIP, ISJV, ISLC, and Creekview. ISIP, ISJV, and Creekview are Texas entities which appear to have held interests in the California Property. Those interests were transferred when Lewis and others transferred their ISIP, ISJV, and Creekview interests to ISLC. Ultimately, ISLC was the recipient of the proceeds of the sale of the California Property. Lewis’s activities involved repeated conduct in Texas. Also, there are documents in the record which reflect that, ISLC, a Nevada corporation, had its principal executive office in Addison, Texas, at the time of the specific conduct complained of, the disbursement of funds on August 12, 2004. At that point in time, Lewis was President of ISLC. He disbursed the funds of ISLC in payment of promissory notes, some of which were payable to him. In particular, it is important for us to consider again, on this point, that the February 14, 2003, promissory note payable by ISLC, in part to Lewis, on which payment was made, was payable in Dallas, Texas, and the law of Texas was expressly designated as the “Governing Law.” See supra, note 4; Burger King, 471 U.S. at 482, 105 S.Ct. 2174. We conclude that Lewis’s conduct as it is related to the forum was not “random, isolated or fortuitous.” Michiana, 168 S.W.3d at 785. Rather, it was “purposeful.” Id.

Regarding the third Michiana factor, we evaluate whether Lewis sought some benefit, advantage, or profit by availing himself of the benefits and protections of Texas. Id. We have already noted that the transactions leading up to the payment on the Toll Brothers note involved numerous events of conduct by Lewis in Texas. Lewis attempts to diminish the significance of his conduct by contending that he came to Texas initially to help with business transactions that were in danger of faltering because his good friend Snadon, the developer of the projects, was incapacitated by cancer. However, it is clear from the structure of the various transactions that Lewis was not merely a “Good Samaritan.” Appellees characterize Lewis as an experienced and highly successful real estate developer and attorney, apparently well qualified to manage the development of the California Property. According to the record, he was compensated for his efforts. Also, he received conveyances of interests in assorted business entities, he conveyed some of those interests, and received, in return, rights to be paid on promissory notes, and he received some of the proceeds of the sale of the California Property. In fact, the record reflects contentious correspondence between the parties, where Lewis defended the payment to his own account of a substantial sum from the Toll Brothers promissory note prepayment stating, “As a direct result of my involvement, and after five years of my work on this project, we have successfully sold the property ... you cannot dispute that I have added significant value to the venture.” Lewis sought benefit, advantage, or profit by availing himself of the benefits and protections of Texas in the enumerated transactions which were part of, and led to, the Toll Brothers prepayment and the disbursement in August 2004.

Here, the facts reflected in prior negotiations and contemplated future consequences, terms of contracts, and course of dealing reflect that Lewis’s activities cannot be characterized as taking place only in states other than Texas. Burger King, 471 U.S. at 479, 105 S.Ct. 2174. Lewis repeatedly “reached out” beyond his home state to Texas. Id. Accordingly, all three of the factors described in Michiana are resolved in favor of determining Lewis’s contacts constitute “purposeful availment” of the privilege of conducting activities within Texas. 168 S.W.3d at 785.

b. Notions of Fair Play and Substantial Justice

We must now address the question of whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154; BMC Soft ware, 83 S.W.3d at 795. As to the first factor, the burden on the nonresident defendant, nothing in the record indicates that litigation in a Texas court would be excessively burdensome or inconvenient to him. The record reflects contacts by Lewis with Texas over the period of the transactions described. Based on the quality, nature and extent of Lewis’s activity in Texas he should expect to be called into the courts of Texas. Regarding the second and third factors, Texas courts have an interest in adjudicating the claims of Texas residents, and Texas is a convenient forum for the litigants. Litigation in Texas will provide both parties, not just appel-lees, the benefits and protections of our laws. The fourth factor is the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy. This interest will be served by litigation in Texas where most of the individuals and documents involved are located. The fifth factor, the shared interest of other states in furthering fundamental substantive social policies, can be implemented by Texas courts as effectively as the courts of Florida, California, Colorado, or Nevada. Accordingly, we conclude that the exercise of specific personal jurisdiction over Lewis by a Texas court does not offend traditional notions of fair play and substantial justice. Id.

VII. Conclusion

For the foregoing reasons, we conclude the trial court’s implied findings are legally and factually sufficient, Lewis failed to carry his burden to negate all of the bases for the trial court’s exercise of personal jurisdiction over him, and we affirm the trial court’s order denying the special appearance of Lewis. The case is remanded to the trial court for trial on the merits.

      . Lewis contends the principal office is in Florida. A February 2003 Assignment of Beneficial Interest Under Deed of Trust With Assignment of Rent, a key document in the transfer of the California Property that is central to this case, lists ISLC’s address as Addison, Texas. Statements of Information filed with the California Secretary of State on 1/20/04 and 1/24/05 by ISLC identify the principal executive office of ISLC as Addison, Texas. However, a 3/3/03 Designation of Foreign Corporation form filed with the California Secretary of State lists Miami, Florida, as ISLC’s principal office and a 2/27/03 Exemption from Workers Compensation Form submitted in California lists Miami, Florida, as the ISLC business address.

      . See note 1, supra.

      . The record reflects a series of promissory notes executed in Dallas, Texas, on January 1, 2002, by ISLC. Two promissory notes for $204,232 and $111,677 were made payable to Durbin in Dallas, Texas. Two promissory notes for $4,084,635 and $1,116,677 were made payable to Snadon in Dallas, Texas. Two promissory notes for $3,798,711 and $2,077,205 were made payable to ISIP in Dallas, Texas. On January 31, 2002, in Dallas, Texas, one promissory note for $1,116,777, was made payable to Lewis in Coconut Grove, Florida. On August 12, 2004, payments were made on some of these promissory notes, and one other promissory note referred to in note 4.The payments on these notes are the subject of appellee’s suit. See note 6, infra.

      . The contested disbursements made in 2004 were applied to this promissory note and others referred to in note 3. Paragraph 10 of this promissory note states: “Governing Law. This note shall be governed by and construed in accordance with the laws of the State of Texas and the laws of the United States applicable to transactions in the State of Texas.”

      . The record is unclear as to the exact time of formation and ownership of this joint venture.

      . Lewis’s payment was applied to: (1) principal and interest on the February 14, 2003, promissory note given by ISLC for his 48.75% ownership in Creekview; (2) principal and interest on the January 31, 2002, promissory note; and (3) his 49.5% of the principal and interest on the January 31, 2002, promissory note given by ISLC to ISIP. Snadon's payments were applied to: (1) principal and interest on the February 14, 2003, promissory note given by ISLC for his 48.75% ownership in Creekview; (2) principal and interest on the January 1, 2002, promissory note; and (3) his 49.5% of the principal and interest on the January 1, 2002, promissory note given by ISLC to ISIP. Durbin’s payments were applied to: (1) principal and interest on the February 14, 2003 promissory note given by ISLC for his 2.5% ownership in Creekview; and (2) principal and interest on the January 1, 2003, promissory note. Beltway was general partner of ISIP. Beltway was paid it’s 1% of the principal and interest on the January 1, 2002, promissory note given by ISLC to ISIP.

      . Boissiere v. Nova Capital, LLC, 106 S.W.3d 897, 904-05 (Tex.App.-Dallas 2003, no pet.); Ahadi v. Ahadi, 61 S.W.3d 714, 720 (Tex.App.Corpus Christi 2001, pet. denied); Ring Power Sys. v. Int’l De Comercio Y Consultoria, S.A., 39 S.W.3d 350, 353-54 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Memorial Hosp. Sys. v. Fisher Ins. Agency, 835 S.W.2d 645, 650-51 (Tex.App.-Houston [14th Dist.] 1992, no writ).

      . Mabry v. Reid, 130 S.W.3d 385, 389 (Tex.App.-Beaumont 2004, no pet.); Boissiere v. Nova Capital, LLC, 106 S.W.3d 897, 904 (Tex.App.-Dallas 2003, no pet.); French v. Glorioso, 94 S.W.3d 739, 746-47 (Tex.App.-San Antonio 2002, no pet.); Runnells v. Firestone, 746 S.W.2d 845, 851-52 (Tex.App.-Houston [14th Dist.] 1988, writ denied).

      . See notes 3 and 4, supra. Specifically, we refer to the note payable by ISLC to Snadon, Durbin, and Lewis executed after the transfer of their interests in Creekview.

      . In addition to Creekview, which is a limited liability company, he held an interest in Capital Lending Associates, Inc., a Texas corporation. Capital Lending was frequently mentioned in the record by the parties. Lewis formed it with Snadon and Durbin during the relevant time period.


source: Caselaw Access Project

author: Justice LANG-MIERS.

license: Public Domain

text:
    John B. BARNETT, Jr. MD Surgical, P.A., Appellant v. COUNTY OF DALLAS, City of Dallas, Dallas Independent School District, Dallas County School Equalization Fund, Dallas County Community College District, and Parkland Hospital District, Appellees.
    No. 05-04-01602-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 9, 2005.

      John H. Carney, John H. Carney & Associates, P.C., Dallas, for Appellant.
    Pamela Pope Johnson and Shelia Fuqua Carter, Linebarger Goggan Blair & Sampson, LLP, Dallas, for Appellee.
    Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
   OPINION

Opinion by

Justice LANG-MIERS.

The County of Dallas, on its own behalf and on behalf of the City of Dallas, Dallas Independent School District, Dallas County School Equalization Fund, Dallas County Community College District, and Parkland Hospital District (the taxing authorities), filed suit against John B. Barnett, Jr. MD Surgical, P.A. to collect delinquent ad valorem taxes for the years 1993 through 2003. Appellant denied ownership of the property and protested the property’s appraised value. Following a bench trial, the trial court ruled in favor of the taxing authorities, and Appellant appealed. For the reasons that follow, we affirm.

BACKGROUND

Dr. John B. Barnett owned and operated John B. Barnett, Jr. MD Surgical, P.A. In January 1990, he moved his practice from Walnut Hill Lane in Dallas to 5489 Blair Road in Dallas and left “a great deal” of Appellant’s business personal property with the new occupant of the Walnut Hill Lane office. Because he did not take all of the property with him, Barnett testified he believed the taxing authorities were trying to tax him on property he did not own. When asked if he knew what property the taxing authorities claimed Appellant owned, Barnett replied, “No, I have no idea what they allege I have.” He said no one had been to his office in fourteen years to appraise the property at his Blair Road address, but that he did not believe the property was worth $78,000 as indicated in the tax statement. Barnett testified that Appellant owned business personal property at the Blair Road address, just not “nearly as much stuff as I did in the other office” and that “there’s many things that are different.”

Barnett also testified that he received notices, or rendition forms, from the Dallas Central Appraisal District requesting information on property Appellant owned, but that he had “no idea how to fill that out at all” and did not complete the forms. He did not return any of the rendition forms to the appraisal district stating he disagreed with the appraised value of the business personal property, and he did not recall whether the forms were sent to him individually or to his business.

In rendering judgment for the taxing authorities, the trial court made the following findings of fact and conclusions of law:

I.FINDINGS OF FACT
1. The defendant, John B. Barnett, Jr. MD Surgical P.A. is a professional association.
2. The defendant, John B. Barnett, Jr. MD Surgical P.A. has operated a business at 5489 Blair Road, Suite 500, Dallas, Texas, since January 1990.
3. The defendant, John B Barnett, Jr. MD Surgical P.A. received notices from the Dallas Central Appraisal District regarding the inclusion of business personal property on the tax rolls in the name of John B. Barnett, located at 5489 Blair Road, Suite 500, Dallas, Texas.
4. The defendant, John B. Barnett, Jr. MD Surgical P.A. has never informed the Dallas Central Appraisal District that the correct business name for any business personal property located at 5489 Blair Road, Suite 500, Dallas, Texas, is John B. Barnett, Jr. MD Surgical P.A. and not John B. Barnett, individually.
5. The defendant, John B. Barnett, Jr. MD Surgical P.A. has not exhausted it[]s right to protest ownership in its own name or in the name of John B. Barnett, individually.
6. The private corporation, John B. Barnett, Jr. MD Surgical P.A., operated under the assumed or common name of John B. Barnett.
7. The market value of the subject property is $78,060.00.
II. CONCLUSIONS OF LAW
1. [The taxing authorities] are legally constituted and authorized to impose and collect ad valorem taxes on property.
2. [The taxing authorities] legally imposed taxes on the business personal property located at 5489 Blair Road, Suite 500, Dallas, Texas.
3. The [taxing authorities] are entitled to recover each tax imposed and each penalty that is incurred and all interest that has accrued on the subject property from the date of the judgment to the date of the sale under Section 34.01 of the Texas Property Tax Code....

In its first issue, Appellant challenges the trial court’s finding of fact number five, arguing that under section 42.09 of the property tax code Appellant was not required to exhaust its administrative remedies before it could protest ownership in defense to a suit to collect delinquent taxes. In its second issue, Appellant argues that because the trial court erroneously concluded Appellant had not exhausted its administrative remedies, the trial court failed to properly shift the burden of producing evidence of ownership of the property back to the taxing authorities after Appellant rebutted the presumption of ownership. In its third issue, Appellant argues the trial court abused its discretion when it denied Appellant’s motion to compel discovery.

Discussion

Exhaustion of Administrative Remedies

The taxing authorities concede that section 42.09 of the property tax code allowed Appellant to raise non-ownership of the property as an affirmative defense in their suit to collect delinquent taxes even though Appellant did not protest ownership at the administrative level. See Tex. Tax Code Ann. § 42.09 (Vernon 2001); In re ExxonMobil Corp., 153 S.W.3d 605, 617 (Tex.App.-Amarillo 2004, no pet.) (section 42.09 states administrative remedies exclusive with two exceptions); City of Pharr v. Boarder to Boarder Trucking Svc., Inc., 76 S.W.3d 803, 805-06 (Tex.App.-Corpus Christi 2002, pet. denied) (same); Gen. Elec. Capital Corp. v. City of Corpus Christi, 850 S.W.2d 596, 602 (Tex.App.-Corpus Christi 1993, writ denied) (legislature amended section 42.09 in 1987 in response to Robstown Indep. Sch. Dist. v. Anderson, 706 S.W.2d 952, 953 (Tex.1986), which held non-ownership defense waived because taxpayer did not exhaust administrative remedies); contra Aldine Indep. Sch. Dist. v. Baty, 999 S.W.2d 113, 118 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (because taxpayer failed to raise non-ownership defense at administrative level, taxpayer waived defense in district court) (citing Robstown, 706 S.W.2d at 953).

Because the taxing authorities agree with Appellant’s interpretation of section 42.09, we do not need to further address Appellant’s first issue contending the trial court erroneously concluded Appellant had not exhausted its administrative remedies as stated in finding of fact number five.

Burden of Proving Ownership

In response to Appellant’s second issue, the taxing authorities argue the trial court’s finding number five that appellant had not exhausted its administrative remedies was not erroneous or harmful because, despite the finding, the trial court allowed Appellant to present evidence to support its affirmative defense that it did not own the property.

At trial, the taxing authorities introduced a certified tax statement showing delinquent ad valorem taxes in the amount of $27,005.19, including penalties, interest, and fees, on “Personal Property Barnett, John B MD” with an appraised value of $78,060, for the years 1993 through 2003. Appellant concedes this tax statement was sufficient to establish a prima facie case as to every material fact necessary to the taxing authorities’ cause of action and that it created a presumption the taxing authorities were entitled to judgment against Appellant in the amount of the delinquency. See Tex. Tax Code Ann. § 33.47(a) (Vernon 2001); Estates of Elkins v. County of Dallas, 146 S.W.3d 826, 829 (Tex.App.-Dallas 2004, no pet.).

But Appellant argues it rebutted the presumption. See D & M Vacuum Serv., Inc. v. Zavala County Appraisal Dist., 812 S.W.2d 435, 437 (Tex.App.-San Antonio 1991, no writ) (ownership presumption created by section 33.47 disappears if taxpayer produces sufficient evidence to justify finding against presumed fact). Appellant contends Barnett’s testimony that the property was not appraised was sufficient evidence that Barnett did not own the property and should have caused the trial court to shift the burden back to the taxing authorities to introduce additional evidence of ownership. We disagree.

Although Barnett testified that no one from the appraisal district had appraised the property, evidence regarding whether the property was appraised has to do with the accuracy of the appraised value, not the ownership of the property on which the tax was imposed. See Tex Tax Code Ann. § 42.09. And Appellant may not challenge the property’s appraised value in a suit to collect delinquent taxes. Id. Instead, the only evidence from Appellant about ownership was Barnett’s testimony that Appellant owned business personal property at 5489 Blair Road, just not all of the property it owned before the move in 1990. Appellant did not introduce any evidence it was being taxed on property it did not own. Consequently, appellant did not rebut the presumption of ownership by introducing evidence that the property was not appraised, and the taxing authorities were under no obligation to offer further evidence to prove ownership. See Estates of Elkins, 146 S.W.3d at 830.

In summary, and despite its finding number five, the trial court gave Appellant the opportunity to protest ownership of the property at trial. But Appellant failed to rebut the presumption created by the tax statement, and the burden did not shift back to the taxing authorities to introduce additional evidence of ownership. As a result, we conclude the trial court’s interpretation of section 42.09 does not require reversal. See Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 770 (Tex.App.-Corpus Christi 2001, no pet.) (incorrect conclusion of law does not require reversal if controlling findings of fact support correct legal theory). Excluding finding of fact number five, the remaining findings of fact and conclusions of law support the judgment. We overrule Appellant’s first and second issues.

Denial of Motion to Compel

In its third issue, Appellant argues the trial court abused its discretion when it denied Appellant’s motion to compel the taxing authorities to produce records that “dealt with the Appraisal District’s methods for appraising Barnett’s property” and information that would allow Appellant “to ascertain what assets the Appraisal District thought Barnett owned.” We will reverse a trial court’s ruling on a motion to compel only when the court acts in an arbitrary and unreasonable manner, without reference to any guiding principles. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-12 (Tex.1985); Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.-Austin 1997, no pet.).

Appellant argued the taxing authorities did not respond or gave evasive or incomplete answers to its discovery requests. Appellant also argued the taxing authorities were agents of Dallas Central Appraisal District, giving them an equal or superior right to possession of the information and “constructive possession” of the documents. The taxing authorities responded that they were not in possession of the information, the information was a matter of public record, and they had provided Appellant the name, address, and telephone number of the Dallas Central Appraisal District where the information could be obtained. The trial court denied the motion to compel.

Rule 192.3 of the Texas Rules of Civil Procedure provides:

(a) Generally. In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party....
(b) Documents and Tangible Things. A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person’s possession, custody, or control.

Tex.R. Civ. P. 192.3(a) & (b).

Rule 192.7(b) defines possession, custody, or control as meaning “the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.” Tex.R. Civ. P. 192.7(b).

Appellant cited no authority for its “agency” argument that it claimed gave the taxing authorities equal or superior right to this information from the appraisal district. The information Appellant sought in discovery were public records accessible to both Appellant and the taxing authorities. Additionally, the information was in the possession of a nonparty, the appraisal district. The rules of civil procedure establish the method for obtaining discovery from non parties. See Tex.R. Civ. P. 205. And Appellant offered no evidence it complied with this procedure.

We conclude the trial court did not abuse its discretion by denying Appellant’s motion to compel. See In re Kuntz, 124 S.W.3d 179, 184 (Tex.2003) (mere access to documents not “physical possession”); Graff v. Whittle, 947 S.W.2d 629, 639 (Tex.App.-Texarkana 1997, writ denied) (public records not considered in possession of any party). We overrule Appellant’s third issue.

We affirm the judgment of the trial court.

      . Throughout his testimony, Barnett referred to property he owned or did not own, without making a distinction between his individual capacity and the professional association. At trial, Barnett claimed he personally did not own any of the property and that the taxing authorities were attempting to hold him individually liable because the tax statement was sent to him personally at his business address. However, the lawsuit was filed against the professional association, and Barnett does not raise this issue on appeal. Having reviewed the entire record, we construe Barnett’s testimony to mean that the professional association owned the property subject to the suit.

      . Section 42.09 provides:
      (a) Except as provided by Subsection (b) of this section, procedures prescribed by this title for adjudication of the grounds of protest authorized by this title are exclusive, and a property owner may not raise any of those grounds:
      (1) in defense to a suit to enforce collection of delinquent taxes;

      (b) A person against whom suit to collect a delinquent property tax is filed may plead as an affirmative defense:
      (1) if the suit is to enforce personal liability for the tax, that the defendant did not own the property on which the tax was imposed on January 1 of the year for which the tax was imposed;....

      Tex. Tax Code Ann. § 42.09(a)(1) & (b)(1).


author: Justice MORRIS.

text:
    Lamont L. MEEK, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 05-05-00130-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 10, 2005.
    Deric King Walpole, Boyd Veigel, P.C., McKinney, for Appellant.
    Jessie L. Allen, McKinney, Kevin Michael Givens, Austin, for Appellee.
    Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion by

Justice MORRIS.

In this appeal, Lamont Meek challenges the suspension of his driver’s license following his arrest for driving while intoxicated. Meek argues the trial court erred in affirming the administrative law judge’s suspension of his license because there was insufficient evidence to establish probable cause for his arrest. Because we conclude Meek’s arguments are without merit, we affirm the trial court’s judgment.

I.

On August 14, 2004, Lamont Meek was involved in a single car accident while driving with his wife and two minor children. One of Meek’s children was injured in the accident and Meek’s wife left the scene with the child by ambulance. Officer Yuschak was dispatched to the scene and, upon his arrival, observed Meek sitting on the curb. Yuschak stated in his police report that, after repeated attempts to get Meek’s attention, Meek stood slowly and had trouble keeping his balance. Meek told Yuschak that he lost control of the car because he had been “crazy driving” to entertain his children. According to Meek, his children enjoyed it when he drove erratically. Yuschak stated in his report that Meek did not seem to understand the dangers created by “crazy driving.”

While interviewing Meek, Yuschak observed that Meek had watery, bloodshot eyes and a moderate to strong smell of alcohol on his breath. Yuschak also noted that Meek spoke with “a thick tongue.” After Meek stated he had had two glasses of wine, Yuschak administered a preliminary breath test that registered an alcoholic content of nearly twice the legal limit. Yuschak further stated that Meek exhibited a variety of clues that he was intoxicated while performing the horizontal gaze nystagmus test, the “walk and turn” test, and the “one leg stand” test. Based on his observations at the scene, Yuschak arrested Meek for driving while intoxicated.

On November 2, 2004, the Texas Department of Public Safety (DPS) sought suspension of Meek’s license at a hearing before an administrative law judge. After hearing the evidence, the judge suspended Meek’s license, and Meek appealed the ruling to the county court at law. The trial court upheld the suspension. Meek then brought this appeal.

II.

This Court reviews the suspension of a driver’s license by an administrative law judge under the substantial evidence standard. See Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 162 (Tex.App.-Dallas 2001, no pet.). In applying this standard, we may not substitute our judgment for that of the judge. Id. The issue is not whether the judge’s decision was correct but only whether the record demonstrates some reasonable basis for the judge’s decision. Id.

In his single issue on appeal, Meek asserts that the administrative law judge erred in suspending his driver’s license and the trial court likewise erred in affirming the decision because the evidence was insufficient to establish there was probable cause for his arrest.- Specifically, Meek argues Yuschak could not properly arrest him for driving while intoxicated because Article 14.01 of the Code of Criminal Procedure permits warrantless arrests only when the offense is committed in view or in the presence of the arresting officer. Because Yuschak did not observe Meek driving while intoxicated, Meek argues his arrest was invalid.

It has long been held, however, that a warrantless arrest for driving while intoxicated will be upheld even if the officer did not see the person driving if the person committed the offense of public intoxication in the officer’s view and there is no proof of sham or fraud. See Warrick v. State, 634 S.W.2d 707, 709 (Tex.Crim.App.1982); Arnold v. State, 971 S.W.2d 588, 589 (Tex.App.-Dallas 1998, no pet.). A person commits the offense of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger himself or another. Tex. Pen.Code Ann. § 49.02(a) (Vernon 2003).

Meek contends he could not have been arrested for public intoxication because there was no indication that he was a danger to himself or others. In making this argument, Meek relies on Yuschak’s testimony that Meek’s car was so badly damaged in the accident that it could no longer be driven. Meek argues that, because he no longer had a functioning vehi-ele, he no longer posed a threat. We disagree.

The court of criminal appeals has held that the fact a person has already been involved in a car accident is sufficient to show he poses a danger to himself or others. See Carrasco v. State, 712 S.W.2d 120, 122 (Tex.Crim.App.1986). Furthermore, an intoxicated person can pose a threat to himself or others regardless of whether he has access to a vehicle. See Segura v. State, 826 S.W.2d 178, 185 (Tex.App.-Dallas 1992, pet. ref'd) (appellant could have run or driven from the scene in an intoxicated manner). Although Meek did not commit any dangerous acts in Yusehak’s presence, it is sufficient that Yuschak observed him to be intoxicated to the extent that he posed a “potential” danger to himself or others. See id.

As stated above, Meek admittedly drove the car that was involved in the one-vehicle accident resulting in injury to his minor child. After the accident, Yuschak observed Meek acting in an intoxicated manner and his preliminary breath test registered an alcoholic content of twice the legal limit. According to Yuschak, Meek did not seem to understand the dangers inherent in his “crazy driving,” particularly after having consumed alcohol. Furthermore, Meek remained on a public street. We conclude this evidence is sufficient to show that Meek posed a potential danger to himself or others and there was probable cause to arrest him for public intoxication. Because there was probable cause to arrest Meek for public intoxication, his warrantless arrest for driving while intoxicated was valid. See Arnold, 971 S.W.2d at 589. We resolve Meek’s sole issue against him.

We affirm the trial court’s judgment.


text:
    Morris S. JONES, Appellant, v. The STATE of Texas and Carole Keeton Strayhorn, Comptroller of Public Accounts, Appellees.
    No. 05-04-01625-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 10, 2005.

      Richard Alley, Fort Worth, for Appellant.
    Gregory W. Abbott, Texas Attorney Gen., Austin, for Appellee.
    Before Chief Justice THOMAS and Justices WHITTINGTON and LANG.
   OPINION

Opinion by

Justice LANG.

Morris S. Jones appeals the trial court’s dismissal, for lack of jurisdiction, of his suit for compensation for wrongful imprisonment.

Jones applied for compensation through the Comptroller, and his request was denied. Then, he sued the State of Texas and Carole Keeton Strayhorn, Comptroller of Public Accounts, (collectively the State) for compensation for wrongful imprisonment. The trial court dismissed Jones’s suit for want of jurisdiction concluding that section 103.002 of the Texas Civil Practice and Remedies Code statutorily prohibited Jones from attempting to obtain compensation by filing suit because he had already proceeded in and sought compensation through the administrative process. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 103.001-103.154 (Vernon 2005).

In his sole issue on appeal, Jones argues the trial court abused its discretion when it dismissed his lawsuit. Jones argues that, although section 103.002 of the Texas Civil Practice and Remedies Code prohibits double recovery, he may proceed as he did without being barred. The State responds that section 103.002 requires an election of remedies by a claimant and that appellant, having elected to proceed administratively, is barred from proceeding by suit in the district court.

In this matter of first impression, we must interpret section 103.002 of the Texas Civil Practice and Remedies Code, which provides the mechanism for the compensation Jones seeks. We conclude the trial court did not err when it dismissed Jones’s claims for want of jurisdiction because Jones had previously sought compensation administratively through the Comptroller. Jones’s sole issue on appeal is decided against him. The trial court’s judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Jones of aggravated assault with a deadly weapon and sentenced him to fifteen years of imprisonment. Jones appealed to this Court, and the trial court’s judgment was affirmed. Jones filed an application for a post-conviction writ of habeas corpus claiming, in part, newly discovered evidence established that he was actually innocent of the offense of which he was convicted. After a hearing was held on Jones’s application, the Texas Court of Criminal Appeals vacated Jones’s conviction and remanded Jones to the Sheriff of Dallas County to answer the charging indictment. The State moved to dismiss the charges in the interest of justice. The trial court dismissed the charges.

Jones filed an application for compensation with the Comptroller pursuant to section 103.051 of the Texas Civil Practice and Remedies Code. See Tex. Civ. PRAC. & Rem. Code Ann. § 103.051. His request was denied. Jones requested reconsideration of his application for compensation, but the Comptroller denied it. Jones took no further action on the denial of his application for compensation and his motion for reconsideration by the Comptroller.

Over two years after the last denial of his application by the Comptroller, Jones filed his petition against the State of Texas in the district court seeking compensation for wrongful imprisonment pursuant to section 103.101 and mandamus relief against the Comptroller pursuant to section 103.051(e). Subsequent to filing the lawsuit, Jones waived his request for mandamus relief. After a bench trial, the trial court dismissed the case for want of jurisdiction. The trial court signed the judgment and issued its findings of fact and conclusions of law, which concluded the district court did not have jurisdiction over Jones’s lawsuit because he had already applied for administrative compensation with the Comptroller.

II. TRIAL COURT’S JURISDICTION

In his sole issue on appeal, Jones argues the trial court abused its discretion when it dismissed for want of jurisdiction his claim for compensation for wrongful imprisonment. He contends section 103.002 of the Texas Civil Practice and Remedies Code, governing compensation to persons wrongfully imprisoned, does not preclude a person from seeking recovery both administratively and by filing suit. Rather, according to Jones, only double recovery is prohibited. The State responds that the provision requires an “election of remedies.” However, the substance of the State’s position is that the plain language of section 103.002 and the other provisions of that statute, the legislative history, and public policy considerations support the interpretation that a person is barred from seeking recovery both administratively and by filing suit. We will address that position.

A. Standard of Review

Matters of statutory construction are questions of law for the courts to decide. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). As such, they are subject to de novo review. See id. In construing a statute, a reviewing court should determine and give effect to the Legislature’s intent. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). It is presumed that in enacting a statute, the Legislature intended: (1) compliance with the United States and Texas Constitutions; (2) the entire statute to be effective; (3) a just and reasonable result; (4) a result feasible of execution; and (5) the public interest to be favored over any private interest. See Tex. Gov’t Code Ann. § 311.021 (Vernon 2005).

If the meaning of the statutory language is unambiguous,' a reviewing court adopts, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999); see also Allen, 15 S.W.3d at 527; In re BACALA 982 S.W.2d 371, 380 (Tex.1998). If a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity. Fitzgerald, 996 S.W.2d at 866; accord Burlington N. R.R. Co. v. Okla. Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 95 L.Ed.2d 404 (1987); see Allen, 15 S.W.3d at 527. However, a reviewing court may consider textual aids to construction for insight into how the Legislature intended its words to be interpreted. Fitzgerald, 996 S.W.2d at 866. When we interpret a code enacted by the Legislature, we read words and phrases in context and construe them according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a). Words are given their ordinary meaning. See Fitzgerald, 996 S.W.2d at 866; Jones v. Fowler, 969 S.W.2d 429, 431 (Tex.1998); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998); see also In re BACALA 982 S.W.2d at 380 (discussing interpretation of civil statutes). Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite. One Thousand Four Hundred Sixty-Two Dollars in U.S. Currency v. State, 774 S.W.2d 17, 20-21 (Tex.App.-Dallas 1989, writ denied) (citing Floyd v. State, 575 SW.2d 21, 23 (Tex.Crim.App.1978)). The use of legal or other well-accepted dictionaries are a method of determining the ordinary meaning of certain words. See Pratt-Shaw v. Pilgrim’s Pride Corp., 122 S.W.3d 825, 833 (Tex.App.-Dallas 2003, pet. denied); Rivas v. State, 787 S.W.2d 113, 115 (Tex.App.-Dallas 1990, no pet.); see also Corpus Christi v. Bayfront Assoc., 814 S.W.2d 98, 104 (Tex.App.-Corpus Christi 1991, writ denied). However, words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, are construed accordingly. Tex. Gov’t Code Ann. § 311.011(b).

If a statute is ambiguous because the intent of the Legislature is not clear, the reviewing court applies the rules of construction. Purdin v. Copperas Cove Econ. Dev. Corp., 143 S.W.3d 290, 294 (Tex.App.-Waco 2004, pet. dism’d) (citing In re BACALA, 982 S.W.2d at 380). When construing a statute, regardless of whether it is ambiguous on its face, a reviewing court may consider: (1) the object sought to be attained; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title (caption), preamble, and emergency provision. See Tex. Gov’t Code Ann. § 311.023.

B. Applicable Law

The Texas Constitution authorizes the Texas Legislature to grant aid and compensation to any person who has paid a fíne or served a sentence under the laws of the State of Texas regarding an offense for which he is not guilty under such regulations and limitations it deems expedient. Tex. Const, art. Ill, § 51-c. The Texas Legislature has exercised that constitutional authority and created a system whereby wrongfully imprisoned persons might be compensated within certain limitations. See Tex. Civ. PRac. & Rem.Code Ann. §§ 103.001-103.154; Heimlich v. State ex rel. Abbott, 107 S.W.3d 643, 645 (Tex.App.-Austin 2003, no pet.).

A person who served his sentence in prison under the laws of Texas and has been granted relief on the basis of actual innocence of the crime for which he was sentenced is entitled to compensation. See Tex. Crv. PRac. & Rem.Code Ann. § 103.001. Section 103.001 states:

§ 103.001. Claimants Entitled to Compensation
(a) A person is entitled to compensation if:
(1) the person has served in whole or in part a sentence in prison under the laws of this state; and
(2) the person:
(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced; or
(B) has been granted relief on the basis of actual innocence of the crime for which the person was sentenced.
(b) A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which the person was also serving a concurrent sentence for another crime to which Subsection (a) does not apply-

Id.

A person who is entitled to compensation may proceed pursuant to section 103.002:

§ 103.002. Choice of Compensation Method
A person entitled to compensation under Section 103.001 may proceed by following the provisions for administratively awarded compensation under Subchapter B [footnote omitted] or by filing suit under Subchapter C, [footnote omitted] but a person may not seek compensation under both Subchap-ters B and C.

Id. at § 103.002.

Under Subchapter B, a person may apply to the Comptroller for compensation. See id. at § 103.051. If the Comptroller denies a claim, the claimant may bring an action for mandamus relief. See id. at § 103.051(e). The Texas Comptroller of Public Accounts is one of seven officials identified in the Texas Constitution as an executive officer. Tex. Const, art. IV, § 1. Only the Texas Supreme Court has the authority to issue a writ of mandamus against the Comptroller, an executive officer of the State of Texas, to order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the Comptroller is authorized to perform. See Tex. Gov’t Code Ann. § 22.002(a), (c) (Vernon 2004).

Under Subchapter C, a person may bring suit against the State by a verified petition alleging that he is entitled to compensation. See Tex. Civ. PRAC. & Rem. Code Ann. § 108.101(b). Such suit must be brought in a court of competent jurisdiction in the county of his residence or Travis County. See id. at § 103.101(c). Service of process must be on the Texas Attorney General. See id. at § 103.101(d). A person who brings suit for compensation must establish by a preponderance of the evidence that: (1) he is entitled to compensation; and (2) the amount of compensation to which he is entitled. See id. at § 103.102.

C. Application of the Law to the Facts

Jones and the State agree section 103.002 is the critical provision. Jones points to the words “may” and “proceed” as operating in favor of his interpretation that section 103.002 merely prohibits double recovery, but not the action he took. The State argues that the words “proceed,” “seek,” and “or” favor its interpretation that section 103.002 bars a person from seeking recovery both administratively and by filing suit.

Our first step in this analysis is to address the definition of the word “may” provided by the Legislature. The Texas Code Construction Act states that unless the context requires a different construction or a statute expressly states otherwise, the word “ ‘[m]ay’ creates discretionary authority or grants permission or a power.” See Tex. Gov’t Code Ann. § 311.016.

Second, we address the words “proceed” and “seek.” These terms are not defined in the Texas Code Construction Act or Chapter 103 of the Texas Civil Practice and Remedies Code. Accordingly, we look to the ordinary meaning of the words “proceed” and “seek.” See Pratt-Shaw, 122 S.W.3d at 833 (dictionaries may provide assistance in finding ordinary meaning); Rivas, 787 S.W.2d at 115 (legal or other well-accepted dictionaries are a method of determining ordinary meaning). The Oxford English Dictionary defines “proceed” as “to go on to do something.” See XII OxfoRd English DictionaRY 544 (2d ed.1989). Webster’s New International Dictionary defines “proceed” as “to begin and carry on some action, process, or movement.” See WebsteR’s Third New International Dictionary 1807 (1981). The Oxford English Dictionary defines “seek” as “to ask for, demand, request.” See XIV Oxford English Dictionary 877 (2d ed.1989). Webster’s New International Dictionary defines “seek” as “to inquire for: ask for: entreat, request.” See Web-steR’s Third New International Dictionary 2055 (1981).

Third, we address the term “or.” Typically, the term “or” is disjunctive and signifies a separation between two distinct ideas. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex.2000). It separates words or phrases in the alternate relationship, indicating that either of the separated words or phrases may be employed without the other. Perez v. State, 11 S.W.3d 218, 225 (Tex.Crim.App.2000) (Holland, J. concurring, McCormick, P.J. and Keasler, J., joined) (quoting 1A SUTHERLAND Stat. Const. § 21.14 (5th ed. 1993 & Supp.1999)); see also In re Porter, 126 S.W.3d 708, 711 (Tex.App.-Dallas 2004, orig. proceeding [mand. denied]) (use of “or” means only one of two events must take place to trigger application of section). The use of the disjunctive usually indicates alternatives and requires that those alternatives be treated separately. Perez, 11 S.W.3d at 225.

The plain meaning of the statutory language leads us to conclude that section 103.002 grants a party the discretion “to begin and carry on” a claim for compensation either administratively or by filing suit, but that party may not “ask for, demand, or request” compensation both administratively and by filing suit. We conclude the trial court did not err when it dismissed for want of jurisdiction Jones’s claim for compensation because Jones had previously sought compensation administratively through the Comptroller.

Jones’s sole issue on appeal is decided against him.

III. CONCLUSION

The trial court did not err when it dismissed Jones’s claims for want of jurisdiction. The trial court’s judgment is affirmed.

      . The criminal case against Jones was styled, The State of Texas v. Morris S. Jones, No. F98-18511-MT, 283rd Judicial District Court, Dallas County, Texas.

      . See Jones v. State, No. 05-98-01871-CR, 1999 WL 722821 (Tex.App.-Dallas Sept.17, 1999, no pet.) (not designated for publication).

      . See Ex Parte Jones, No. 74,116 (Tex.Crim.App. Jun. 6, 2001) (per curiam) (not designated for publication).

      . The State argues that section 103.002 is a provision requiring an "election of remedies.” The State's use of the term "election of remedies” is misplaced. An election of remedies is the act of choosing between two or more
        inconsistent but coexistent modes of procedure and relief allowed by law on the same state of facts, [emphasis added]. Custom Leasing, Inc. v. Tex. Bank & Trust Co., 491 S.W.2d 869, 871 (Tex.1973); see also Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850 (Tex.1980); City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 165 (Tex.App.-Dallas 2001, pet. denied).