Verizon California, Inc. v. Diana Douglas

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued March 2,

2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00707-CV

VERIZON CALIFORNIA INC., Appellant

V.

DIANA DOUGLAS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE FOR THE HEIRS AND ESTATE OF CAROLYN HARTON, Appellees

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 03CV0171

MEMORANDUM OPINION

This

is an accelerated interlocutory appeal from the trial court’s denial of a

special appearance filed by appellant, Verizon California Inc. (“Verizon

California”). We conclude that (1)

Verizon California did not generally appear in the case by violating the due

order of pleadings rule, and (2) viewing the facts in a light favorable to the

trial court’s ruling, the record does not satisfy the requirements of due

process and the Texas long-arm statute so as to confer personal jurisdiction on

the trial court. We therefore reverse

and render judgment dismissing the claims against Verizon California for lack

of personal jurisdiction.

I. BACKGROUND

In

2003, Diana Douglas, individually and as the personal representative for the estate

of Carolyn Harton, sued Verizon Communications Inc., along with numerous other

defendants, alleging tort claims related to Harton’s asbestos exposure and

subsequent death. [1] Harton’s husband worked for Verizon California

in California. Douglas alleges that he

was exposed to asbestos during the course of his employment. Douglas further alleges that Harton was also exposed

to the asbestos by doing her husband’s laundry and riding in his car. Verizon Communications Inc. responded with a

special appearance, a motion to transfer venue, and an original answer. The trial court did not immediately consider

Verizon Communications Inc.’s special appearance.

Over

a year later, Douglas filed an eighth amended petition, which names both

“Verizon Communications, Inc.” and “Verizon Communications, Inc., d/b/a Verizon

California Inc., f/k/a GTE California, Inc.” as defendants. Verizon Communications Inc. answered the

eighth amended petition on January 24, 2005, stating both that Douglas had

incorrectly inserted a comma in its corporate name, and had incorrectly sued it

as “Verizon Communications, Inc. d/b/a Verizon California, Inc. f/k/a GTE

California, Inc.” Three months later,

the trial court granted Verizon Communications Inc.’s special appearance.

On

April 25, 2005, the trial court signed a default judgment in the amount of $4.5

million against “Verizon California Inc., f/k/a GTE California, Inc.” About one hour before the entry of the

default judgment, Douglas had filed a ninth amended petition, in which she

names “Verizon California, Inc., f/k/a GTE California, Inc.” as a defendant. In that petition, Douglas asserts that she

“previously incorrectly sued” Verizon California, Inc., f/k/a GTE California,

Inc. as “Verizon Communications, Inc., d/b/a Verizon California Inc., f/k/a GTE

California, Inc.”

Verizon

California filed a special appearance and brief in support on May 25,

2005. Following the filing of its

special appearance, Verizon California also moved to vacate the default

judgment, or in the alternative to grant a new trial, or in the further

alternative to modify, correct, or reform the default judgment, all subject to

its special appearance (“motion for new trial”). On July 5, 2005, the trial court heard

Verizon California’s special appearance, as well as its motion for new trial. The court denied the special appearance but

granted the motion for new trial. This

interlocutory appeal followed. [2]

II. STANDARD OF

REVIEW

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 Belgium, N.V. v. Marchand ,

83 S.W.3d 789, 793 (Tex. 2002). The

burden of proof then shifts to the nonresident to negate all possible grounds

for personal jurisdiction. Kawasaki

Steel Corp. v. Middleton , 699 S.W.2d 199, 203 (Tex. 1985). The existence of personal jurisdiction is a

question of law, which must sometimes be preceded by the resolution of

underlying factual disputes. Preussag

Aktiengesellschaft v. Coleman , 16 S.W.3d 110, 113 (Tex. App.—Houston [1st

Dist.] 2000, pet. dism’d w.o.j.). When

the underlying facts are undisputed or otherwise established, we review a trial

court’s denial of a special appearance de novo. Id .

Where, as here, a trial court does not issue findings of fact or

conclusions of law with its special appearance ruling, all fact findings

necessary to support the judgment and supported by the evidence are implied. BMC Software , 83 S.W.3d at 79 .

III. ANALYSIS

A. Waiver

Initially, we determine whether

Verizon California waived its special appearance, as Douglas contends. In doing so, we consider whether Verizon

California violated the due order of pleadings rule by making a general

appearance before obtaining a ruling on its special appearance.

1. Due

Order of Pleadings Rule

Douglas

contends Verizon California violated the due order of pleadings rule, which

provides that a special appearance must be filed prior to “any other plea,

pleading or motion.” Tex. R. Civ. P . 120a(1). Here, after learning that a default judgment

had been taken against it, Verizon California properly filed a special

appearance and then a motion for new trial, subject to its special

appearance. [3] See id. (“[A] special appearance shall

be made by sworn motion filed prior to motion to transfer venue or any other

plea, pleading or motion; provided however, that a motion to transfer venue and

any other plea, pleading, or motion may be contained in the same instrument or

filed subsequent thereto without waiver of such special appearance . . . .”); s ee

also Puri v. Mansukhani , 973 S.W.2d 701, 707 (Tex. App.—Houston [14th

Dist.] 1998, no pet.) (“Many Texas courts generally recognize that if a

non-resident defendant discovers a default judgment was entered, he should file

a special appearance and then a motion for new trial subject to his special

appearance .”). Verizon California also

announced “not ready” at the hearing on the motion for new trial and insisted

that the trial court rule on the special appearance first.

Douglas

nonetheless asserts that Verizon California violated the due order of pleadings

rule because it argued to the trial court at the special appearance hearing

that, if the trial court believed it had been properly sued, then the court

should also find that it had answered by way of Verizon Communications Inc.’s

answer. Douglas maintains that since

Verizon Communications Inc.’s answer was filed on January 24, 2005, and Verizon

California’s special appearance was not filed until May 25, 2005, Verizon

California violated the due order of pleadings rule by raising this argument to

the trial court.

We

disagree. The Texas Rules of Civil

Procedure expressly permit a party to argue in the alternative. Tex.

R. Civ. P . 48; Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga,

Inc. , 936 S.W.2d 275, 278 (Tex. 1996) (“[O]ur rules expressly permit

parties to proceed on alternative theories of relief.”). At the special appearance hearing, in

response to questioning from the trial court, Verizon California primarily

argued that the default judgment was improper because Verizon California was

not a named defendant in the lawsuit by being listed as a “d/b/a” entity of

Verizon Communications Inc. in the eighth amended petition. In the alternative, Verizon California argued

that if the trial court concluded it was properly added as a defendant in the

lawsuit brought against Verizon Communications Inc., then Verizon Communications

Inc.’s answer constituted an answer for Verizon California. By arguing in the alternative that Verizon

Communications Inc.’s answer should be attributed to Verizon California,

Verizon California did not violate the due order of pleadings rule. “A party may . . . state

as many separate . . . defenses as he has regardless of

consistency . . . .”

Tex. R. Civ. P . 48

(emphasis added). We therefore reject

Douglas’s contention that Verizon California waived its special appearance by violating

the due order of pleadings rule.

2. General

Appearance

Douglas

further contends Verizon California waived its special appearance by asking, in

its motion for new trial, that the trial court modify the default judgment

interest rate and consider its entitlement to a settlement credit. Douglas urges that by doing so, Verizon

California sought affirmative relief from the trial court and therefore made a

general appearance.

A

party waives its special appearance if it seeks “affirmative relief or invoke[s]

the trial court’s jurisdiction on any question other than the court’s

jurisdiction prior to the trial court ruling on the special appearance.” Lang v. Capital Res. Invs., I & II,

LLC , 102 S.W.3d 861, 864 (Tex. App.—Dallas 2003, no pet.) (citing Dawson-Austin

v. Austin , 968 S.W.2d 319, 322 (Tex. 1998)). Here, although Verizon California’s motion

for new trial seeks affirmative relief from the trial court, Verizon California

did not seek such relief prior to the trial court ruling on the special

appearance. To the contrary, Verizon

California not only made its motion for new trial subject to the special

appearance, it also expressly announced “not ready” at the hearing on the

motion for new trial until the court ruled on the special appearance. [4] By announcing “not ready” at the hearing on

the motion for new trial, Verizon California clearly indicated it was not

seeking affirmative relief or invoking the trial court’s jurisdiction with

respect to the motion for new trial until the trial court had ruled on the

special appearance. Accordingly, we hold

that Verizon California did not make a general appearance, thereby waiving its

special appearance. See Dawson-Austin ,

968 S.W.2d at 322–23 (holding that motion to quash service, plea to

jurisdiction, and plea in abatement, all contained in same instrument as

special appearance but not expressly made subject to special appearance, did

not constitute general appearance); Lang , 102 S.W.3d at 864–65 (in default

judgment case, holding that appellant’s offer in motion for new trial to

participate in all necessary hearings and proceed to trial on merits did not

constitute general appearance because motion for new trial was made subject to

special appearance, and further holding that where appellant set motion for new

trial and special appearance for hearing on same day, appellant did not make

general appearance because he objected to trial court’s decision to proceed on

motion for new trial before ruling on special appearance); Minucci v.

Sogevalor, S.A. , 14 S.W.3d 790, 800 (Tex. App.—Houston [1st Dist.] 2000, no

pet.) (“[Appellant] did not waive his special appearance by simply filing a

notice of oral hearing on the motion to dissolve writ of garnishment.”); Puri ,

973 S.W.2d at 706–07 (in default judgment case, holding that appellant did not

make general appearance, even though his motion for new trial expressly stated

he was “ready to go to trial,” because motion for new trial was expressly made

subject to special appearance).

B. Special Appearance

Verizon

California contends the trial court erred in determining that it is subject to

the personal jurisdiction of a Texas state court. Specifically, Verizon California asserts that

no evidence demonstrates it has minimum contacts with Texas sufficient to

warrant the exercise of jurisdiction, and further asserts that general jurisdiction

does not comport with traditional notions of fair play and substantial justice.

A Texas

court may assert personal jurisdiction over a nonresident defendant only if the

requirements of both the Fourteenth Amendment’s due process clause and the

Texas long-arm statute are satisfied. See

U.S. Const . amend. XIV, § 1; Tex. Civ. Prac. & Rem. Code Ann. §

17.042 ( Vernon 1997); CSR

Ltd. v. Link , 925 S.W.2d 591, 594 (Tex. 1996). The Texas long-arm statute allows a court to

exercise personal jurisdiction over a nonresident defendant who does business

in Texas. Tex. Civ. Prac. & Rem. Code Ann . § 17.042. The Texas Supreme Court has repeatedly

interpreted this broad statutory language “to reach as far as the federal

constitutional requirements of due process will allow.” CSR Ltd. , 925 S.W.2d at 594

(citations omitted). Therefore, the

requirements of the Texas long-arm statute are satisfied if the exercise of

personal jurisdiction comports with federal due process limitations. Id .

The

United States Constitution permits a state to assert personal jurisdiction over

a nonresident defendant only if the defendant has some minimum, purposeful

contacts with the state and if the exercise of jurisdiction will not offend

traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz , 471

U.S. 462 , 475–76, 105 S. Ct. 2174 , 2183–84 (1985); Dawson-Austin , 968

S.W.2d at 326 . A nonresident that has

purposefully availed itself of the privileges and benefits of conducting

business in the state has sufficient contacts with the state to confer personal

jurisdiction. CSR Ltd. , 925

S.W.2d at 594 .

The

“purposeful availment” requirement has recently been characterized by the Texas

Supreme Court as the “touchstone of jurisdictional due process.” Michiana Easy Livin’ Country, Inc. v. Holten ,

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

the Texas Supreme Court articulated three important aspects of the purposeful

availment inquiry. Id . at

785. First, only the defendant’s

contacts with the forum count. Id . This ensures that a defendant is not haled

into a jurisdiction solely by the unilateral activities of a third party. Id . (citing Burger King , 471

U.S. at 475 , 105 S. Ct. at 2183 ).

Second, the acts relied on must be purposeful; a defendant may not be

haled into a jurisdiction solely based on contacts that are “random, isolated,

or fortuitous.” Id . (citing

Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 774 , 104 S. Ct. 1473, 1478

(1984)). Third, a defendant

“must seek some benefit, advantage, or profit by ‘availing’ itself of the

jurisdiction” because “[j]urisdiction is premised on

notions of implied consent—that by invoking the benefits and protections of a

forum’s laws, a nonresident consents to suit there.” Id. (citing

World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297 , 100 S. Ct. 559,

567 (1980)).

A

defendant’s contacts with a forum can give rise to either general or specific

jurisdiction. Guardian Royal Exch.

Assurance, Ltd. v. English China Clays, P.L.C. , 815 S.W.2d 223, 227 (Tex.

1991). Douglas concedes that this case

is one of general jurisdiction. [5] General jurisdiction arises when a

defendant’s “general business contacts” with the forum state are “continuous

and systematic,” allowing the forum to exercise personal jurisdiction over the

defendant even though the cause of action does not arise from or relate to

activities conducted within the forum. Helicopteros

Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 416 , 104 S. Ct. 1868,

1873 (1984); CSR Ltd. , 925 S.W.2d at 595 . When general jurisdiction is asserted, the

minimum contacts analysis is more demanding and requires a showing that the

defendant conducted “substantial activities” in the forum state. CSR Ltd. , 925 S.W.2d at 595 .

1. Minimum Contacts

The

uncontroverted evidence before the trial court shows that Verizon California is

incorporated and authorized to do business in California. Its principal place of business is in

California—it is not qualified to do business in Texas. It does not have a bank account in

Texas. Nor does it own or lease any real

property in Texas.

Douglas

nonetheless contends the trial court properly determined that Verizon

California is subject to the general jurisdiction of a Texas court for the

following reasons: (1) Verizon California does business in Texas from a

permanent office location; (2) at least one of Verizon California’s corporate

officers works from that Texas location; (3) Verizon California pays its

California property taxes from the same Texas location; and (4) the tariff that

allows Verizon California to collect End User Common Line charges from its

customers was drafted and issued from a Texas address. [6] We address each in turn.

a. Permanent Office Location

Verizon

California is a wholly-owned subsidiary of GTE Corporation. Douglas provided the trial court with print

copies of internet webpages stating that GTE moved its corporate headquarters

to Irving, Texas in 1998. Douglas also

furnished the trial court with an internet copy of the Dallas Central Appraisal

District’s record for GTE Realty Corp.’s property located at 600 Hidden Ridge

Drive in Irving, Texas. Douglas asserts

that even though the property is “technically owned” in GTE’s name, it is used,

at least in part, by Verizon California.

Douglas

does not dispute that Verizon California and GTE are distinct corporate

entities. If a party seeks to ascribe

one corporation’s activities to another corporation by disregarding their

distinct corporate entities, that party must prove that the corporate fiction

should be disregarded. BMC Software ,

83 S.W.3d at 798 . More specifically, “[t]o

‘fuse’ the parent company and its subsidiary for jurisdictional purposes, the

plaintiffs must prove the parent controls the internal business operations and

affairs of the subsidiary.” Id.

at 799 . Here, Douglas did not provide

the trial court with any evidence indicating GTE controls the internal business

operations and affairs of Verizon California; nor did she provide any evidence

to substantiate her assertion that Verizon California conducts business from

GTE’s Texas facility. Accordingly, we

cannot base general jurisdiction on Douglas’s assumption that Verizon

California operates from a permanent office location in Texas.

b. Location of Corporate Officer

In support of its special appearance,

Verizon California provided the affidavit of its Assistant Secretary, Rosalynn

Christian. Christian signed the affidavit and had it notarized in Dallas

County, Texas. On the morning of the special appearance hearing, Verizon

California furnished the trial court with another affidavit from Christian,

which she also signed and notarized in Dallas County. Douglas asserts that because both affidavits

were signed and notarized in Texas, this is some evidence Verizon California

was doing business in Texas. We disagree. The fact that Christian

signed and notarized the affidavits in Texas proves that she was physically

present in Texas at that time, but it does not prove that Christian is a

resident of Texas or that she conducts business in Texas on behalf of Verizon

California. Douglas’s counsel conceded as much at the special appearance

hearing: “[Y]ou will see that [the affidavit is] signed in the State of Texas,

County of Dallas, by Rosalynn [Christian] today, this morning. . . . Now that doesn’t prove anything except she was

in Dallas this morning . . . .” [7]

Douglas also points out that her

counsel testified at the special appearance hearing, over a hearsay objection,

that he attempted to reach Christian on the morning of the hearing by calling

the telephone number for Verizon Communications Inc. listed on its website.

The operator provided a 972 phone number for Christian. Douglas contends this is some evidence that

Verizon California has a telephone number in Texas. Again, however, this

testimony merely shows that Christian could be reached at a Dallas-area

telephone number. [8]

This is insufficient to show Christian conducts business from a Texas

location on behalf of Verizon California on a continuous and systematic basis.

c. Property Tax Payments

Douglas

provided the trial court with a document from the California Board of

Equalization, which is responsible for collecting property taxes from

California companies. The document lists

Verizon California as an assessee and gives the following mailing address:

“Care Of: Verizon Corporate Svcs Group Inc., PO Box 152206, Irving, Texas

75015-2206.” Douglas asserts that

because Christian works for Verizon Corporate Services Group, this document

provides some evidence that Christian conducts business on behalf of Verizon

California—namely, paying its California property taxes—from her location in

Texas.

The only evidence concerning

Christian’s job duties for Verizon Corporate Services Group indicates that she

is a “Specialist-Legal Support,” which means she “oversee[s] the corporate

governance for certain subsidiaries of Verizon Communications Inc.” We cannot infer from this evidence that Verizon

California conducts business in Texas.

To the contrary, Douglas’s evidence shows that Verizon Corporate

Services Group, a separate corporate entity, receives Verizon California’s

California property tax assessment notices at a Texas address. This is insufficient to show Verizon

California has continuous and systematic contacts with Texas.

d. FCC Tariff

In

1983, the Federal Communications Commission (“FCC”) established a regulatory

mechanism to compensate local exchange carriers for providing long-distance

carriers access to their local networks.

Verizon Tel. Cos. v. FCC , 269 F.3d 1098, 1101 (D.C. Cir. 2001). Pursuant to these regulations, local exchange

carriers may collect End User Common Line (“EUCL”) charges from end users. Id.

FCC Tariff No. 16 specifically allows Verizon California to collect EUCL

charges from its customers. Douglas

furnished the trial court with a copy of FCC Tariff No. 16, which was prepared

by the “Director-Tariffs” for Verizon Telephone Companies from an address in

Irving, Texas. Douglas asserts that

because the tariff that allows Verizon California to collect EUCL charges from

its customers was drafted and issued from a Texas address, this is sufficient

to establish general jurisdiction.

We disagree. The fact that the Director of Tariffs for

Verizon Telephone Companies prepares and issues the tariff statements for each

individual Verizon entity from an address in Texas does not demonstrate that

Verizon California conducts substantial activities in Texas. If anything, the document indicates that

Verizon California is the “issuing carrier” for California and Arizona, while

Verizon Southwest, Inc. is the “issuing carrier” for Texas. Accordingly, we hold that general

jurisdiction over Verizon California is not warranted based on the tariff

statement Douglas provided.

* * *

We hold that Verizon California does

not have sufficient minimum contacts with Texas to warrant the exercise of

general jurisdiction. Based on the

evidence before the trial court, Verizon California does not conduct

substantial activities in Texas on a continuous and systematic basis. Rather, the contacts alleged by Douglas are

precisely the type of “random, isolated, or fortuitous” contacts insufficient

to support general jurisdiction. Keeton ,

465 U.S. at 774 , 104 S. Ct. at 1478 .

Accordingly, the trial court erred in denying Verizon California’s

special appearance.

2. Traditional

Notions of Fair Play and Substantial Justice

Nor

does general jurisdiction over Verizon California comport with traditional

notions of “fair play and substantial justice.”

Guardian Royal , 815 S.W.2d at 232 . In making this determination, we consider the

following factors: (1) the burden on the defendant; (2) the interests of the

forum state 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 fundamental substantive

social policies. Id. These factors weigh against the exercise of

personal jurisdiction over Verizon California.

Texas

has no interest in adjudicating this dispute.

Harton’s alleged asbestos exposure and related injury and death occurred

in California—not Texas. The parties are

California residents; thus, Texas has no interest either in protecting its

citizens or in policing the activities of a corporation authorized to do business

in the state. Verizon California would

be burdened by being haled into Texas to defend suit, while Douglas would

obtain more convenient and effective relief in California, which is where the

witnesses, documents, and property at issue are located. See James v. Ill. Cent. R.R. , 965

S.W.2d 594, 599 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding that

Texas had no interest in adjudicating cause of action that arose in Tennessee

because neither plaintiff nor corporate defendant was resident of Texas, Texas

would not be protecting its citizens from potential future wrongdoings of

corporate defendant, and all witnesses and evidence were located in

Tennessee). In addition, California is an

available appropriate forum for governing the actions of a California

corporation in the interest of furthering substantive social policies. We therefore conclude that the exercise of

personal jurisdiction over Verizon California does not comport with traditional

concepts of fair play and substantial justice.

IV. CONCLUSION

We

hold that Verizon California did not waive its special appearance by violating

the due order of pleadings rule. We

further hold that no evidence supports the trial court’s conclusion that

Verizon California’s contacts with Texas are sufficient to confer personal

jurisdiction; nor does the exercise of personal jurisdiction comport with

traditional notions of fair play and substantial justice. Accordingly, we reverse the order of the

trial court and render judgment dismissing the case against Verizon California

for lack of personal jurisdiction.

Jane

Bland

Justice

Panel consists of Justices Taft,

Higley, and Bland.

[1] Douglas is Harton’s daughter.

[2] See Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(7) (Vernon Supp. 2005).

[3] Specifically, the motion for new trial is styled

“Verizon California’s Motion to Vacate Default Judgment, or in the Alternative

Grant a New Trial, or in the Further Alternative, to Modify, Correct, or Reform

the Default Judgment, Subject to Its Special Appearance.”

[4] Specifically, counsel for Verizon California stated as

follows: “We are not ready to proceed on the motion to set aside the default

judgment until the Court has made a ruling on the special appearance that we

filed.”

[5] Specific jurisdiction is not applicable here because

Harton’s alleged asbestos exposure and related injury and death occurred in

California—not Texas. See Guardian

Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C. , 815 S.W.2d 223,

227 (Tex. 1991) (explaining that specific jurisdiction is established if a

defendant’s alleged liability arises from or is related to an activity

conducted within the forum state).

[6] Douglas has also asked us to take judicial notice of

three pages of public records, under official seal from the California

Secretary of State, indicating that Verizon California’s corporate address is

in Texas and that several corporate officers work from two different physical

addresses in Texas. At the special appearance

hearing, Douglas asked the trial court to take judicial notice of the same

information, but the court refused to do so because the documents were not

certified and instead expressly provided that they were “for information

purposes only.” See Tex. R. Evid . 1005 (providing that

contents of official public record may be proved by certified copy); Tex. R. Evid . 201(d) (providing that

court is required to take judicial notice only when supplied with necessary

information). As the trial court

properly refused to take judicial notice of these documents, we decline to do

so now on appeal. See In re K.L.R. ,

162 S.W.3d 291, 306 (Tex. App.—Tyler 2005, no pet.) (refusing to take judicial

notice of court records not properly admitted into evidence before trial court);

Van Tran v. Fiorenza , 934 S.W.2d 740, 742 (Tex. App.—Houston [1st Dist.]

1996, no writ) (“[A]ppellate courts are reluctant to take judicial notice of

evidence when the trial court was not afforded the opportunity to examine and

take into consideration that evidence.”).

We therefore deny Douglas’s motion to take judicial notice.

[7] We note that Christian’s first affidavit was filed on

May 19, 2005, nearly a month and a half before the special appearance hearing,

providing Douglas’s counsel with ample opportunity to either depose Christian

or subpoena her to testify at the hearing regarding her residency and office

location, as well as the extent of her activities, if any, conducted in Texas

on behalf of Verizon California.

[8] In her affidavit, Christian states that she is both a

“Specialist-Legal Support” for Verizon Corporate Services Group Inc., as well

as the Assistant Secretary for Verizon California. The fact that Christian could be reached on

the morning of the hearing at a Dallas-area phone number is no evidence that

Christian offices at a Texas location on behalf of Verizon California.