                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-08-062-CV

SOUTHWEST AVIATION
SPECIALITIES, L.L.C. AND DAVID C.
GUZMAN, AN INDIVIDUAL                                            APPELLANTS

                                        V.

WILMINGTON AIR VENTURES IV,
INC. AND DELISA AIRCRAFT
MANAGEMENT, INC.                                                   APPELLEES

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           FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In three issues, Appellants Southwest Aviation Specialties, LLC and David

C. Guzman appeal the denial of their special appearances and the evidentiary

rulings that the trial court made in support of that denial. We affirm.



      1
          … See Tex. R. App. P. 47.4.
                     II. Factual and Procedural Background

      This case involves a contract for aviation-related goods and services

between Southwest Aviation Specialities (“Southwest”) and Appellees

Wilmington Air Ventures IV, Inc. and Delisa Aircraft Management, Inc.

(collectively, “Wilmington”).     Wilmington sued Southwest and Guzman,

Southwest’s general manager, both Oklahoma residents, for breach of contract

and deceptive trade practices, among other claims. Wilmington alleged in its

original petition that Southwest and Guzman “attempted to repair some of the

avionics work while [Wilmington’s aircraft] was at a maintenance facility in Fort

Worth, Texas, known as Phazar Flight Support.” Southwest and Guzman each

filed special appearances, which the trial court denied.

                            III. Special Appearances

      In their first issue, Southwest and Guzman complain that the trial court

erred when it denied their special appearances, claiming that they negated all

bases for personal jurisdiction, specific and general. In their second issue, they

argue that the trial court erred when it overruled their objections to

Wilmington’s affidavits in opposition to the special appearances. And in their

third issue, Southwest and Guzman complain that the trial court erred when it

“deemed admitted” their objections and responses to Wilmington’s second

request for admissions.

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      The trial court’s order denying Southwest’s and Guzman’s special

appearances noted that it granted all parties further time to file additional

pleadings and that, after notice to all parties “and upon considering the

Defendants’ Special Appearances, the response, the evidence, the pleadings

and the arguments of counsel, the Court is of the opinion that Defendants’

Special Appearances should be denied.” The record also includes a letter from

the trial court to the parties, dated the same day as the order and enclosed with

the order, stating, “The Defendants’ objections to the Plaintiffs’ Special

Appearance evidence are each denied.”

A. Standard of Review

      Whether a trial court has personal jurisdiction over a defendant is a

question of law reviewed de novo. BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 793–94 (Tex. 2002); TravelJungle v. Am. Airlines, Inc., 212

S.W .3d 841, 845 (Tex. App.—Fort Worth 2006, no pet.); SITQ E.U., Inc. v.

Reata Rests., Inc., 111 S.W.3d 638, 644 (Tex. App.—Fort Worth 2003, pet.

denied). The plaintiff bears the initial burden of pleading sufficient allegations

to bring a nonresident defendant within the provisions of the Texas long-arm

statute. BMC Software, 83 S.W.3d at 793; TravelJungle, 212 S.W.3d at 845;

Reata, 111 S.W.3d at 644. Wilmington met its initial burden by asserting in its

original petition that Southwest and Guzman, Oklahoma residents, “engaged in

                                        3
business in Texas, a contract made the basis of this dispute was performed, in

part, in Texas, and the Defendants engaged in other wrongful acts in Texas.”

See Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 2008). A nonresident

defendant challenging a Texas court’s personal jurisdiction over it must then

negate all jurisdictional bases.      BMC Software, 83 S.W.3d at 793;

TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at 644–45.

B. Deemed Admissions

      Southwest and Guzman claim that their objections and responses to

Wilmington’s second set of requests for admissions were timely filed on

December 28, 2007, because they were “actually served” or they “actually

received” Wilmington’s second set of requests for admissions on November 29,

2007. Thus, they argue, the trial court should not have “deemed admitted”

Wilmington’s requests for admissions. 2

      Rule 198.2(a) of the rules of civil procedure requires that a responding

party must serve a written response to requests for admissions on the




      2
       … Wilmington responds that Southwest and Guzman have waived this
alleged error because the trial court made no rulings and did not enter any order
with regard to the “deemed admissions.” However, when responses to
requests for admissions are not timely served, the requests are considered
admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(c).
Therefore, contrary to Wilmington’s position, the trial court did not have to
make a ruling or enter an order with regard to the alleged “deemed admissions.”

                                       4
requesting party “within 30 days after service of the request.” Tex. R. Civ. P.

198.2(a) (emphasis added). Service of requests for admissions falls under rule

21a. Tex. R. Civ. P. 21a; Etheredge v. Hidden Valley Airpark Ass’n, Inc., 169

S.W.3d 378, 381–83 (Tex. App.—Fort Worth 2005, pet. denied) (op. on

reh’g).   Rule 21a provides that service by certified mail is complete upon

deposit of the document, enclosed in a postpaid, properly addressed wrapper,

in a post office or official depository under the care and custody of the United

States Postal Service. Tex. R. Civ. P. 21a; Wheeler v. Green, 157 S.W.3d 439,

441 (Tex. 2005) (explaining that the “mailbox rule,” rule 21a, deems requests

for admissions served when mailed by certified mail, not when received); see

also 2 David E. Keltner, Texas Practice Guide: Discovery, § 7:34 (2008) (“The

time for response begins ticking on the date requests are mailed (not on the

date of their receipt).”). Rule 21a also provides that “[w]henever a party has

the right or is required to do some act within a prescribed period after the

service of a notice or other paper upon him and the notice or paper is served

upon by mail . . . , three days shall be added to the prescribed period.” Tex.

R. Civ. P. 21a. Therefore, Southwest had thirty-three days from the date of

service to respond to Wilmington’s second set of requests for admissions.

      Wilmington’s second set of requests for admissions was sent by certified

mail and bears a U.S. post office postmark of November 21, 2007. Therefore,

                                       5
Southwest’s responses were due thirty-three days later, on December 24,

2007. Tex. R. Civ. P. 21a. Southwest filed its responses on December 28,

2007.

      Southwest and Guzman refer us to Etheredge and to Payton v. Ashton,

29 S.W.3d 896 (Tex. App.—Amarillo 2000, no pet.), for the proposition that

the date of “actual service” or “actual receipt” of the requests for admissions

on the responding party is the critical and dispositive date. Etheredge and

Payton both involved requests for admissions sent certified mail that were

returned “unclaimed.” Etheredge, 169 S.W.3d at 383–84; Payton, 29 S.W.3d

at 898. Here, in contrast, Southwest and Guzman admit that they actually

received the requests for admission, but they argue that because they received

the requests outside of the three days provided for in rule 21a, their responses

should not have been deemed admitted.

      Southwest and Guzman refer to a footnote in Etheredge in which this

court stated that, on remand, rule 198.2 “will allow Etheredge thirty days to

respond upon receiving HVAA’s request for admissions unless HVAA

establishes that Etheredge has already received constructive notice of the

request.” 169 S.W.3d at 383 n.3 (emphasis added). However, within the

case’s context, this statement acted not to modify or expand rule 198.2’s

requirement of “within thirty days after service” or rule 21a’s definition of

                                       6
service by certified mail, but instead to establish that Etheredge actually had to

be served, as HVAA’s previous requests for admissions had been returned to

HVAA “unclaimed,” and Etheredge had therefore never received them. See id.

at 382–83. A party’s duty to respond is triggered upon receipt of the requests,

but that party also has a duty to note the date of service and to calculate the

due date of its responses from the date of service. See Cudd v. Hydrostatic

Transmission, Inc., 867 S.W.2d 101, 102–03 (Tex. App.—Corpus Christi

1993, no writ) (“The rules do not provide automatic tolling of the start date due

to tardy mail service.”).

      Here, rules 21a and 198.3 were available to provide Southwest and

Guzman with a remedy. Rule 21a states:

      Nothing herein shall preclude any party from offering proof that the
      notice or instrument was not received, or, if service was by mail,
      that it was not received within three days from the date of deposit
      in a post office or official depository under the care and custody of
      the United States Postal Service, and upon so finding, the court
      may extend the time for taking the action required of such party or
      grant such other relief as it deems just.

Tex. R. Civ. P. 21a (emphasis added). Rule 198.3 states that the trial court

may permit a party to withdraw an admission if the party shows good cause for

the withdrawal and the court finds that the party relying on the deemed

admissions will not be unduly prejudiced. Tex. R. Civ. P. 198.3; see also Renee

H. Tobias, Deemed Admissions: Tool, Trap or Both? 46 Baylor L. Rev. 709, 713

                                        7
(1994) (stating that a motion to extend time to respond, to prevent deemed

admissions, must be filed prior to the expiration of the original thirty-day period

because deemed admissions are automatic; if time has passed, then a motion

to withdraw deemed admissions must be filed).

      Southwest and Guzman offered proof that the requests for admissions

were not received within three days from the date of deposit, and the trial court

granted both parties additional time to file “whatever supplemental pleading[s]

you want to file.” However, Southwest and Guzman failed to file a motion to

withdraw their admissions. Therefore, the deemed admissions relied upon by

Wilmington in its response to Southwest and Guzman’s special appearances

were never withdrawn. We overrule Southwest and Guzman’s third issue.

C. Personal Jurisdiction

      Texas courts may exercise jurisdiction over a nonresident defendant only

if the exercise of jurisdiction is authorized by the Texas long-arm statute and

comports with state and federal constitutional guarantees of due process.

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574–75 (Tex. 2007);

BMC Software, 83 S.W.3d at 795. The federal due process test consists of

two parts:    (1) whether the nonresident defendant purposely established

“minimum contacts” in the forum state; and (2) if so, whether the exercise of

personal jurisdiction comports with “fair play and substantial justice.” Burger

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King Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174, 2183–84

(1985); Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,

815 S.W.2d 223, 230–31 (Tex. 1991). Minimum contacts are sufficient for

personal jurisdiction when the nonresident defendant purposefully avails itself

of the privilege of conducting activities within the forum state, thus invoking

the benefits and protections of its laws. See Hanson v. Denckla, 357 U.S.

235, 253, 78 S. Ct. 1228, 1240 (1958); Michiana Easy Livin' Country, Inc. v.

Holten, 168 S.W.3d 777, 784 (Tex. 2005).

      A nonresident’s contacts with the forum state may give rise to either

specific or general jurisdiction.   BMC Software, 83 S.W.3d at 795–96.

Specific jurisdiction exists where the defendant’s alleged liability stems from an

activity conducted within the forum state. Id. at 796. A Texas court may

assert specific jurisdiction over an out-of-state defendant if the defendant’s

contact with this state is purposeful and the injury arises from or relates to

those contacts. See Moki Mac, 221 S.W.3d at 572–73, 576 (considering, in

light of Michiana, the extent to which a claim must “arise from or relate to”

forum contacts to confer specific jurisdiction over a nonresident defendant).

This “purposeful availment” inquiry has three parts: (1) only the defendant’s

contacts with the forum are relevant, not the unilateral activity of another party

or a third person; (2) the contacts relied upon must be purposeful rather than

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random, fortuitous, or attenuated; and (3) the defendant must seek some

benefit, advantage, or profit by “availing” itself of the jurisdiction. Id. at 575;

Michiana, 168 S.W.3d at 784–85; see also World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980).

      The following requests for admission were deemed admitted:

      1. Admit that you traveled to Phazar at the Fort Worth Airport on
      at least one occasion in connection with the Project,3 during the
      relevant time frame.4

      2. Admit that you were on board the Aircraft 5 during the time it
      was at Phazar at the Fort Worth Airport during the relevant time
      frame.




      3
      … The “Instructions/Definitions” section of Wilmington’s requests for
admissions defines “Project” as

      the aircraft and avionics maintenance, goods, and services provided
      by [Guzman and Southwest], including aircraft and avionics goods
      and services required for the Aircraft to be modified and certificated
      for operations requiring compliance with Reduced Vertical
      Separation Minima (“RVSM”), the update to the Aircraft’s Flight
      Management System (“FMS”), and the installation of a Terrain
      Awareness and Warning System (“TAWS”).


      4
       … The “Instructions/Definitions” section defines “relevant time frame”
as “from the year 2003 to the present.”
      5
       … The “Instructions/Definitions” section defines “Aircraft” as “that
certain Gulfstream II multi-engine jet aircraft, registration number N4NR,
manufacturer’s serial number 225 and/or that certain aircraft made the basis
and subject of Plaintiff’s Petition, as amended, in this lawsuit.”

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      3. Admit that you performed avionics and other system
      troubleshooting on the Aircraft related to the Project while it was
      located at the Fort Worth Airport, during the relevant time frame.

      4. Admit that you met with representatives of Plaintiff at the Fort
      Worth Airport during the relevant time frame.

      5. Admit that you met with representatives of Phazar at the Fort
      Worth Airport during the relevant time frame in connection with the
      Aircraft and/or the Project.

      6. Admit that your meetings with representatives of Plaintiff and of
      Phazar at Phazar at the Fort Worth Airport were in connection with
      problems that continued to exist in connection with the Project that
      required correction, during the relevant time frame.

      7. Admit that you attended meetings with Plaintiffs’
      representatives at Phazar at the Fort Worth Airport from time to
      time during the relevant time frame.

      8. Admit that you attended a meeting with Plaintiffs’
      representatives and with counsel for the Plaintiffs on November 30,
      2005, at Phazar at the Fort Worth Airport.

      9. Admit that the meeting you attended on November 30, 2005, at
      Phazar at the Fort Worth Airport, was for the purpose, in part, of
      discussing the Aircraft and the Project, with Plaintiffs’
      representatives.

      Although Southwest and Guzman claim that they committed no specific

or purposeful acts in Texas and that there is no evidence of their purposeful

availment through which they can be said to have sought a benefit in Texas,

their deemed admissions clearly provide a basis for the trial court to exercise

specific personal jurisdiction. Under Moki Mac, the deemed admissions above


                                      11
describe relevant contacts by Southwest and Guzman in Texas that were

purposeful rather than random, fortuitous, or attenuated. See 221 S.W.3d at

575.    Furthermore, Southwest and Guzman never denied that they had a

contract with Wilmington involving the Aircraft or that they failed to seek a

benefit from performing the contract that, per the deemed admissions, involved

some performance in Texas. Therefore, sufficient contacts existed to give the

trial court specific personal jurisdiction over Southwest and Guzman.     We

overrule Southwest and Guzman’s first issue.

                               IV. Conclusion

       Having overruled Southwest and Guzman’s dispositive issues, we affirm

the trial court’s judgment. See Tex. R. App. P. 47.1.




                                          BOB MCCOY
                                          JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DELIVERED: November 20, 2008




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