Carolina Porturas v. Jeff Anglobaldo

AFFIRMED and Opinion Filed July 22, 2024

S In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00919-CV

CAROLINA PORTURAS, Appellant
V.
JEFF ANGLOBALDO, Appellee

On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-01546-2023

MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Carlyle
Opinion by Justice Carlyle
Appellee Jeff Anglobaldo sued Carolina Porturas, Milagros Porturas, and

Jonas De Cardenas for breach of contract, unjust enrichment, and conversion

regarding an alleged agreement to purchase drawer slides from China and ship them

to Peru. On appeal, Carolina Porturas challenges the trial court’s denial of her first

amended special appearance because she is not a Texas resident and that Anglobaldo

failed to allege sufficient facts to bring her within Texas’s long-arm jurisdiction.

Based on the record demonstrating Carolina’s presence in Texas at the time
Anglobaldo served her with process via citation, we affirm in this memorandum

opinion. See TEX. R. APP. P. 47.4.

“Whether a court has personal jurisdiction over a defendant is determined as

a matter of law, which appellate courts review de novo.” Spir Star AG v. Kimich, 310

S.W.3d 868, 871 (Tex. 2010). When, as here, a trial court does not issue findings of

fact and conclusions of law with its special appearance ruling, we imply all facts

necessary to support the judgment that the evidence supports. BMC Software

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the relevant facts

are undisputed, an appellate court need not consider implied findings of fact and

considers only the legal question of whether the undisputed facts establish

jurisdiction. Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 558 (Tex.

2018).

The record contains a return of service showing Anglobaldo served Carolina

in Richardson, Texas. Carolina filed a special appearance, which she later amended

in parts not relevant to our disposition, stating she was not a Texas resident but was

a resident of Peru. Carolina also filed an unsworn declaration that stated, “The facts

contained in the Special Appearance are true and correct.”

See TEX. CIV. PRAC. & REM. CODE § 132.001. Carolina has not attacked the truth

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or the propriety of Anglobaldo’s return of service in her special appearance, unsworn

declaration, or appeal.1

“The purpose of citation is to give the court proper jurisdiction over the parties

and to provide notice to the defendant that he has been sued, and by whom and for

what, so that due process will be served and he will have an opportunity to appear

and defend the action.” Aavid Thermal Techs. of Texas v. Irving Indep. Sch. Dist., 68

S.W.3d 707, 710 (Tex. App.—Dallas 2001, no pet.). The return of service “has long

been considered prima facie evidence of the facts recited therein.” Primate Const.,

1
The following exchange occurred during the special appearance hearing:

[Porturas’s counsel]: Your Honor, Mrs. Porturas is not a resident of the State of
Texas, she’s a resident of the State of Peru, and regarding the service of process,
our clients have informed us that the process server handed all three copies of the
citation to the same defendant, Milagros Porturas.

And while this time Carolina Porturas --

THE COURT: You’re making an argument aren’t you?

[Porturas’s counsel]: Yes, Your Honor.

THE COURT: This is just for evidence at this moment. Is there any other evidence
you have?

We have found no evidence in the record supporting counsel’s statement concerning service.

Generally, an attorney’s statements are not evidence unless they are made under oath. See
United States Gov’t v. Marks, 949 S.W.2d 320, 326 (Tex. 1997). “[T]he opponent of the testimony
can waive the oath requirement by failing to object when the opponent knows or should know that
an objection is necessary.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). Here, Anglobaldo
had no reason to know he needed to object because the court stopped Carolina’s counsel, who
immediately confirmed his statement concerning service was argument instead of evidence. Thus,
counsel’s statement is not evidence in support of Carolina’s special appearance. See McCain v.
NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.—Dallas 1993, no writ) (“Motions and
arguments of counsel are not evidence.”).
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Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (cleaned up). Recitations in the return

of service carry so much weight that they cannot be rebutted by uncorroborated

proof. Id. (cleaned up). The undisputed return of service shows Carolina was

personally served in Richardson.

The fact of personal service in Texas subjects Carolina to personal jurisdiction

in Texas. See Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604,

619, 628–29, 638, 640 (1990); Hanschen, Trustee of David Hanschen Heritage Trust

Two v. Hanschen, No. 05-19-01134-CV, 2020 WL 2764629, at *2 (Tex. App.—

Dallas May 28, 2020, no pet.) (mem. op.). “[The long-arm statute’s] reference to

nonresident defendants within its reach is a truistic necessity to reflect the reality

that long-arm service is not needed to obtain service over a defendant who is

physically present in the state.” Winnsboro Auto Ventures, LLC v. Santander

Consumer USA, Inc., No. 05-17-00895-CV, 2018 WL 1870771, at *3 (Tex. App.—

Dallas Apr. 19, 2018, no pet.) (mem. op.) (citing Burnham, 495 U.S. at 619 (opinion

of SCALIA, J.)).

This is a common thread expressed by every member of the Burnham court:

SCALIA, J., plurality op., joined by REHNQUIST, C.J., KENNEDY and WHITE,

J.J.: “Among the most firmly established principles of personal jurisdiction in

American tradition is that the courts of a State have jurisdiction over nonresidents

who are physically present in the State.” Burnham, 495 U.S. at 610. “The short of

the matter is that jurisdiction based on physical presence alone constitutes due

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process because it is one of the continuing traditions of our legal system that define

the due process standard of ‘traditional notions of fair play and substantial justice.’

That standard was developed by analogy to ‘physical presence,’ and it would be

perverse to say it could now be turned against that touchstone of jurisdiction.” Id. at

619. “For new procedures, hitherto unknown, the Due Process Clause requires

analysis to determine whether ‘traditional notions of fair play and substantial justice’

have been offended . . . But a doctrine of personal jurisdiction [the in-state service

rule] that dates back to the adoption of the Fourteenth Amendment and is still

generally observed unquestionably meets that standard.” Id. at 621, 622 (not joined

by WHITE, J.).

WHITE, J., concurring in part and concurring in the judgment: “The rule

allowing jurisdiction to be obtained over a nonresident by personal service in the

forum State, without more, has been and is so widely accepted throughout this

country that I could not possibly strike it down, either on its face or as applied in this

case, on the ground that it denies due process of law guaranteed by the Fourteenth

Amendment.” Id. at 628.

BRENNAN, J., concurring in the judgment, joined by MARSHALL, BLACKMUN,

and O’CONNOR, J.J.: “I agree with JUSTICE SCALIA that the Due Process Clause of

the Fourteenth Amendment generally permits a state court to exercise jurisdiction

over a defendant if he is served with process while voluntarily present in the forum

State.” Id. at 628–29. “Without transient jurisdiction, an asymmetry would arise: A

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transient would have the full benefit of the power of the forum State’s courts as a

plaintiff while retaining immunity from their authority as a defendant.” Id. at 638.

STEVENS, J., concurring in the judgment: “For me, it is sufficient to note that

the historical evidence and consensus identified by Justice SCALIA, the

considerations of fairness identified by Justice BRENNAN, and the common sense

displayed by Justice WHITE, all combine to demonstrate that this is, indeed, a very

easy case. Accordingly, I agree that the judgment should be affirmed.” Id. at 640.

Thus, even if Carolina is correct that (1) Anglobaldo failed to allege sufficient

jurisdictional facts to bring her within the reach of Texas’s long-arm statute, (2) she

negated the jurisdictional allegations in Anglobaldo’s petition via her special

appearance and unsworn declaration, and (3) the trial court improperly considered

Anglobaldo’s service of citation and emails for the purposes of its long-arm

jurisdiction analysis, each is inapposite because the trial court’s exercise of

jurisdiction was not based on long-arm jurisdiction; instead, it was based on transient

jurisdiction because the undisputed record indicates Carolina was present for service

of process in Texas. See Stallworth v. Stallworth, 201 S.W.3d 338, 344 (Tex. App.—

Dallas 2006, no pet.) (“An assertion of personal jurisdiction based on physical

presence alone constitutes due process.”); see also Carmona v. Leo Ship Mgmt., Inc.,

924 F.3d 190, 195 (5th Cir. 2019) (transient jurisdiction “is established by serving

process on a nonresident defendant while it is physically present in the forum

state.”).

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Thus, we overrule all five of Carolina’s issues because service in Richardson,

Texas alone satisfies all components of Due Process and establishes the court’s

personal jurisdiction over her without regard to the long-arm statute.2

We affirm the trial court’s denial of Carolina Porturas’s special appearance.

/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
220919F.P05

2
1. “Did Anglobaldo fail to allege sufficient jurisdictional facts to bring Porturas within the
reach of the Texas long-arm statute?
2. Did Porturas satisfy her burden to negate the jurisdictional allegations in Anglobaldo’s
Original Petition by pleading in her Special Appearance that she is not a resident of the State of Texas?
3. Does service of citation establish amenability to process as required for the exercise of
long-arm jurisdiction by a Texas court?
4. Did the trial court err in considering jurisdictional allegations made by Anglobaldo which
were not pled in his Original Petition?
5. Did the trial court err in finding that it could properly exercise personal jurisdiction over
Porturas?”
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CAROLINA PORTURAS, Appellant On Appeal from the County Court at
Law No. 4, Collin County, Texas
No. 05-23-00919-CV V. Trial Court Cause No. 004-01546-
2023.
JEFF ANGLOBALDO, Appellee Opinion delivered by Justice Carlyle.
Justices Partida-Kipness and
Pedersen, III participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee JEFF ANGLOBALDO recover his costs of
this appeal from appellant CAROLINA PORTURAS.

Judgment entered this 22nd day of July 2024.

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