      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00525-CV



                                Mariana Teixeira Naves, Appellant

                                                   v.

                     National Western Life Insurance Company, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-GN-07-004494, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Mariana Teixeira Naves obtained a default judgment in Brazil

against appellee National Western Life Insurance Company. Naves sought to domesticate the

Brazilian judgment in Travis County district court, and National Western filed a motion for

nonrecognition of the foreign judgment. The district court granted National Western’s motion

for nonrecognition. Naves appeals. We conclude that the Brazilian court did not obtain personal

jurisdiction over National Western, and that the district court did not abuse its discretion by declining

to conduct an evidentiary hearing. We affirm the judgment of the district court.


Factual and Procedural Background

                The underlying dispute in this case concerns a life insurance policy issued

by National Western in the face amount of $400,000.               The policy was obtained through

Ricardo Oliveira Tarantello, an “executive general agent” of National Western in Brazil. The
insured, Antonio Manoel Rodriguez, named Naves as the beneficiary.                Two months after

National Western issued the policy and during the policy’s contestability period, Rodriguez was

shot and killed in Brazil. National Western then rescinded the policy and returned payment based

on its determination that Rodriguez had failed to disclose his history of diabetes.

               Naves filed suit against National Western in a Brazilian civil court to

recover payments she deemed were due under the insurance policy. Naves attempted to serve

National Western by serving Tarantello. National Western did not appear in the Brazilian lawsuit.

Naves obtained a default judgment against National Western in the Brazilian court on August 23,

2005, for the proceeds of the insurance policy and other costs and fees.

               Naves sought to domesticate the foreign judgment in Travis County district court,1

in accordance with the Uniform Foreign Country Money-Judgment Recognition Act (the “Act”).

See Tex. Civ. Prac. & Rem. Code Ann. §§ 36.001-.008 (West 2008). National Western filed a

motion for nonrecognition of the judgment, based in part on the Brazilian court’s lack of personal

jurisdiction over National Western. On July 17, 2008, the district court granted National Western’s

motion and ordered, pursuant to the Act, that the Brazilian default judgment be of no force and effect

in any Texas court and not be entitled to full faith and credit. Naves appeals.




       1
          Naves initially filed a notice of domestication in Harris County district court, but the case
was transferred to Travis County, the county in which National Western’s principal place of business
is located.

                                                  2
Motion for Nonrecognition

                A foreign country judgment is generally enforceable in the same manner as a

judgment of a sister state that is entitled to full faith and credit. See id. § 36.004. However, the party

against whom recognition of a foreign country judgment is sought may contest recognition of

the judgment by timely filing with the court a motion for nonrecognition of the judgment. See id.

§ 36.0044(a). In the event such a motion is timely filed, the court may refuse recognition of

the foreign country judgment if the evidence establishes grounds for nonrecognition specified in

section 36.005 of the Act. See id. § 36.0044(g).

                In her first four points on appeal, Naves challenges the district court’s grant of

National Western’s motion for nonrecognition. We review the grant of a motion for nonrecognition

de novo. See Courage Co. v. ChemShare Corp., 93 S.W.3d 323, 331 (Tex. App.—Houston

[14th Dist.] 2002, no pet.). The party seeking to avoid recognition of the foreign judgment has the

burden of proving a ground for nonrecognition. See id. National Western based its motion for

nonrecognition on the Brazilian court not having personal jurisdiction over National Western. Under

section 36.005 of the Act, if the foreign court lacks personal jurisdiction over a defendant, a

Texas court must refuse recognition of the foreign country judgment against that defendant. See

Tex. Civ. Prac. & Rem. Code Ann. § 36.005(a)(2); Courage Co., 93 S.W.3d at 330.

                The parties agree that Brazilian law requires valid service of process on a defendant

for a Brazilian court to obtain personal jurisdiction over that defendant. Naves attempted to serve

National Western with process by serving Tarantello, the insurance agent in Brazil from whom

Rodriguez obtained the insurance policy. According to the Brazilian Code of Civil Procedure, in the



                                                    3
translation provided to the trial court by National Western, a foreign corporation may be served

with process by serving “the manager, representative or administrator of its branch or agency,

open or incorporated in Brazil.”2 National Western contends that service was not accomplished in

accordance with Brazilian law because National Western does not have any sort of branch, agency,

or office in Brazil.

                In support of its motion for nonrecognition, National Western included the affidavit

of James P. Payne, senior vice president-secretary of National Western, and attached to the affidavit

is the “Executive General Agent Contract” between National Western and Tarantello. See Tex. Civ.

Prac. & Rem. Code Ann. § 36.0044(b) (“The party filing the motion for nonrecognition shall




        2
          In an affidavit attached to National Western’s motion for nonrecognition, Antonio Gidi,
assistant professor of law at the University of Houston Law Center, provided the following
translation from Portuguese of the applicable Brazilian law:

                CPC, Art. 12, VI: Legal persons (corporations) will be represented in court,
        either as plaintiff or defendant, by the persons designated in their bylaws, or in the
        absence of designation, by their directors.
                CPC, Art. 12, VIII: Foreign legal persons (foreign corporations) will be
        represented in court, either as plaintiff or defendant, by the manager, representative or
        administrator of its branch or agency, open or incorporated in Brazil.

Naves has not challenged Gidi’s expert qualifications as a translator. Naves filed two English
translations of the Brazilian court’s default judgment. The first translates the relevant portion of
subsection VIII as “the manager, representative or administrator of the branch office, agency or field
office opened or established in Brazil.” The second—provided by Naves after failing to obtain an
affidavit of a qualified translator with regard to the first, see Tex. R. Evid. 1009(a)—translates the
relevant portion as “the manager, agent or officer of their branch office, agency or representation
office opened or established in Brazil.” While the translations differ to some extent, the differences
do not impact our analysis.

                                                   4
include with the motion all supporting affidavits, briefs, and other documentation.”).3 Payne’s

affidavit includes the following paragraphs:


        4. [National Western] does not do business in Brazil and it is not registered to do
           business in Brazil. [National Western] has no offices in Brazil. [National
           Western] has no branch office, agency, or field office in Brazil. [National
           Western] has no employees, agents, or representatives in Brazil.

        5. [National Western] has entered into Executive General Agent Contracts with
           individuals in Brazil. These agreements create an independent contractor
           relationship between [National Western] and the General Executive Agent. The
           agreement grants the General Executive Agent, as an independent contractor, the
           right to procure applications for insurance, including life insurance, and annuities
           from citizens of Brazil. These independent contractors submit such applications
           to [National Western] on behalf of their clients.


                Naves objected to these paragraphs as “conclusory.” The district court did not rule

on the objection, and Naves reasserts her objection on appeal. While the notion that an affidavit

is subject to objection on the basis that it is “conclusory” is suspect, we conclude that Payne’s

affidavit does not state inadmissible legal conclusions that will not support the trial court’s judgment.

Payne’s affidavit consists of sworn statements of fact that would be admissible to support the

conclusion that National Western does not have a “branch,” “agency,” or “office” in Brazil. These

include the statements of fact that National Western does not do business in Brazil, is not

registered to do business in Brazil, has no offices in Brazil, and has no employees or agents in Brazil.

The attached agency contract is consistent with these statements. According to Payne’s affidavit,


        3
         National Western subsequently moved for leave to file the affidavit of Ricardo Tarantello.
See Tex. Civ. Prac. & Rem. Code Ann. § 36.0044(f) (West 2008) (court may permit submission of
additional materials). Naves objected to the untimely filing, and the district court did not rule on the
motion. Neither party has argued on appeal that it was error not to grant, or otherwise rule on, the
motion for leave.

                                                   5
National Western offers insurance in Brazil by entering into agency contracts with independent

contractors. The attached contract designates Tarantello as “an independent contractor and nothing

in this contract shall be construed to create the relationship of principal and agent or master and

servant or employer and employee,” appoints him solely “to procure applications for insurance and

annuity contracts as are issued by [National Western],” and does not prohibit him from procuring

applications for other insurance companies.

               Naves points to evidence in the record that Tarantello is an “agent” of

National Western. For example, Tarantello operates under a contract entitled “Executive General

Agent Contract” and holds the position of “Executive General Agent.” Naves also produced

testimony from Scott Arendale, National Western’s senior vice president of international marketing,4

to the effect that Tarantello was an “agent” of National Western. However, Tarantello’s being

an agent does not, by itself, evidence a National Western branch, agency, or office as required

by Brazilian law. The agency contract does not identify Tarantello as a representative of a

branch, agency, or office. Moreover, Arendale further testified that Tarantello was not an exclusive

agent to National Western and, in fact, represented other insurance companies in addition to

National Western. Thus, neither Tarantello’s contract nor Arendale’s testimony controverts Payne’s

assertion that National Western has no offices in Brazil. Absent a branch, agency, or office opened




       4
          Arendale’s testimony was given in a lawsuit in Harris County. In that lawsuit, the
beneficiary of a separate life insurance policy issued for Rodriguez by National Western
sued National Western for failure to pay proceeds under the policy. We note that there is nothing
in the record to indicate that service of process, personal jurisdiction, or the existence of a
National Western branch, agency, or office in Brazil was at issue in that suit.

                                                 6
or incorporated by National Western in Brazil, it is irrelevant under the applicable Brazil law

whether Tarantello was an agent, or otherwise a “manager, representative or administrator.”5

               Naves contends that the provision in the agency contract authorizing

National Western to assign additional agents to Tarantello and approve agents appointed by

Tarantello creates a branch, agency, or office. However, even if Naves were correct that the

assignment or appointment of an agent to Tarantello would, by itself, be sufficient to create a branch,

agency, or office under Brazil law—a proposition for which Naves provides no support—there is

no evidence that any such agents were, in fact, assigned or approved by National Western. In sum,

National Western produced sufficient evidence to establish the lack of a branch, agency, or office

in Brazil, and Naves produced no evidence to the contrary.6

               Naves appears to contend that Tarantello’s being an agent generally is sufficient to

make him an agent specifically for purposes of service of process. However, the record evidence

demonstrates that while Tarantello does have some agency authority, such authority does not include


       5
          Naves contends that we should follow the Brazilian court’s analysis concerning personal
jurisdiction since that court is “the best interpreter of Brazilian law.” However, we note that the
Brazilian court appears to have based its personal jurisdiction solely on documents identifying
Tarantello as National Western’s “agent,” without addressing whether Tarantello was affiliated with
a National Western branch, agency, or office opened or incorporated in Brazil.
       6
            After the district court issued its order granting National Western’s motion for
nonrecognition, Naves filed a motion for reconsideration to which additional documents
were attached. The district court did not rule on the motion for reconsideration, and it was deemed
overruled as a result. See Tex. R. Civ. P. 329b(c). The attached documents were not part of
the record before the court when it rendered its judgment. See Tex. Civ. Prac. & Rem. Code Ann.
§ 36.0044(c) (“A party opposing the motion must file any response, including supporting affidavits,
briefs, and other documentation, not later than the 20th day after the date of service on that party of
a copy of the motion for nonrecognition.”). A court may permit the submission of additional
documents. See id. § 36.0044(f). However, the district court did not abuse its discretion in not doing
so, given that the documents were not filed until after judgment was entered, and Naves provided
no reason in her motion for reconsideration why they were not—or could not have been—filed
earlier.

                                                  7
receipt of service of process on National Western’s behalf. See Gaines v. Kelly, 235 S.W.3d 179,

184-85 (Tex. 2007) (“The relevant issue then is not merely the existence of an agency relationship,

but rather the scope of that agency.”). The agency contract provides Tarantello with authority to

procure applications for insurance on National Western’s behalf, but does not provide any authority

to receive service of process on National Western’s behalf. Moreover, the contract expressly

states that Tarantello cannot institute legal proceedings on National Western’s behalf “without

[its] written approval,” and that if legal action is brought against National Western because

of Tarantello’s acts, it “may require” him to defend such action. Thus, the scope of Tarantello’s

agency, in accordance with the contract, did not encompass any activities related to legal proceedings

absent National Western’s consent or demand, neither of which had been provided here.

               Next, Naves attempts to rely on the provision of the Brazilian Code of

Civil Procedure that provides—according to the only English translation in the record—that

corporations are represented in court “by the persons designated in their bylaws, or in the absence

of designation, by their directors.” Naves contends that National Western failed to introduce

any evidence that Tarantello was not so designated in its bylaws or that he was not a director. Naves,

at the district court, did not refer to this provision of the Brazilian code or otherwise raise this

argument. See Tex. R. App. P. 33.1(a) (“As a prerequisite to presenting a complaint for appellate

review, the record must show that . . . the complaint was made to the trial court by a timely request,

objection, or motion . . . .”). Furthermore, even if we were to consider this additional legal basis

for service of process, we would hold that the Brazilian court did not thereby obtain personal

jurisdiction over National Western. Payne averred in his affidavit that “Tarantello was not and has



                                                  8
never been authorized to accept service of process on behalf of [National Western].” Payne’s

statement is consistent with the agency contract, which identifies Tarantello as an independent

contractor, with authority existing “only as expressly stated in this contract.” The record contains

sufficient evidence, therefore, that Tarantello neither was National Western’s director nor was

designated in the bylaws to accept process on National Western’s behalf.

                Finally, Naves attempts to rely on section 36.006(b) of the Act, which provides that

a Texas court may recognize “other bases” of personal jurisdiction. See Tex. Civ. Prac. & Rem.

Code Ann. § 36.006(b). Naves argues that we should follow New York courts in relying on such

statutory authority to hold that a state should “recognize a foreign judgment predicated on

any jurisdictional basis it recognizes in its internal law.” See Porisini v. Petricca, 456 N.Y.S.2d 888,

889-90 (N.Y. App. Div. 1982). To the extent Naves is arguing that the district court below abused

its discretion by declining to consider an alternative basis for jurisdiction, we decline to so hold,

given that prior to entry of the district court’s judgment Naves did not present any arguments to the

district court relating to section 36.006(b) of the Act or New York case law. To the extent Naves

is arguing that regardless of the proceedings before the district court this Court should recognize

another basis for jurisdiction, we decline to do so. There is no Texas authority for the proposition

that section 36.006(b) should be applied to recognize an independent basis for jurisdiction.

Moreover, based on the translations in the record, Brazilian law already provides for methods by

which Naves could have properly served National Western with process even if it had no branch,

agency, or office opened or incorporated in Brazil.




                                                   9
               We conclude the evidence demonstrates that, under Brazilian law as raised

and presented by the parties, the Brazilian court did not obtain personal jurisdiction over

National Western. National Western’s motion for nonrecognition was, therefore, properly granted.

See Tex. Civ. Prac. & Rem. Code Ann. § 36.0044(g), .005(a)(2).7


Evidentiary Hearing

               In her remaining point on appeal, Naves contends that the district court abused

its discretion by refusing to ensure that the July 14, 2008 hearing on National Western’s motion

for nonrecognition was an evidentiary hearing. Both parties had included with their motions

and responses “supporting affidavits, briefs, and other documentation.” See id. § 36.0044(b), (c).

The Act also provides that the “party filing a motion for nonrecognition or responding to the motion

may request an evidentiary hearing that the court may allow in its discretion.” Id. § 36.0044(e).

However, neither party requested an evidentiary hearing prior to the hearing’s commencement. At

the hearing, Naves attempted to submit new evidence and argued that Payne’s absence at the hearing

rendered his affidavit hearsay. When the court inquired whether Naves had communicated in her

filings or to National Western that she would request an evidentiary hearing, Naves abandoned her

efforts: “No, I don’t want an evidentiary hearing. I don’t think we need one.” Given Naves’s failure

to request an evidentiary hearing prior to the hearing’s commencement, and her concession at the




       7
          Having concluded that the motion for nonrecognition was properly granted for lack of
personal jurisdiction in accordance with section 36.005(a)(2) of the Act, we do not address
National Western’s alternative argument that its motion was properly granted based on lack of
reciprocity, which is a discretionary ground for nonrecognition of foreign judgment under
section 36.005(b)(7) of the Act. See id. § 36.005(b)(7) (West 2008).

                                                10
hearing that it could proceed without additional evidence being introduced, we hold that the

district court did not abuse its discretion in not conducting an evidentiary hearing. See id.


Conclusion

                  Having overruled each of Naves’s points on appeal, we affirm the judgment of the

district court.




                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop;
   Concurring Opinion by Justice Patterson

Affirmed

Filed: September 10, 2009




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