Reversed and Remanded and Memorandum Opinion filed December 10 , 2019.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00747

- CV

ENERGY SEARCH COMPANY INC., DONALD ROBUCK , AND SHARYN ROBUCK , Appellant s

V.
RLI INSURANCE COMPANY , Appellee

On Appeal from the 2 69th District Court

Harris County, Texas Trial Court Cause No. 2018

- 16016

M E M O R A N D U M O P I N I O N

A ppellants Energy Search Company Inc., Donald Rob uck, and Shar y n Robuck bring this restricted appeal from a no

- a ns wer def ault judgment in favor of appellee, RLI Insurance Company. Appellants contend in three issues that error is apparent on the fa ce of the record because : (1) they are non residents of Texas and RLI failed to plead facts su ff icient to establish personal jurisdiction over the m;2

(2) no court r e porter ’ s record exists of th e default judgment hearing ; and (3) legally insufficient ev idence support s the trial court ’ s judgment.

W e agree with appellants ’ first issue that RLI failed to plead facts that , if
t rue, establish personal juri sdiction over e a ch appellant , and that err or is apparent

on the face of the present record

. W e reverse the default judgment and remand for furth er proceed ings

. Background According to i ts original petition, RLI issued a bond on behalf of Energy Search and related to pot e ntial liabilities for plugging oil and gas w ells dri lled in Colorado

. In 201 0, RLI amended t he value of the b ond to $60,000. In exchange for issuing the amended bond, Energy Sea rch and Donald and Sharyn Robuck signed indemnity agreements, in which they e ach agreed to indemnif y RLI for all liabilities as sociated with the bond. Neither the bond nor the indemnity agreements are part of our record.
RLI furt her alleged that i n July 2017, the Colorado Oil and Gas Conserva tion Commission ( “ COGC C ” ) de manded tha t RLI pay on the bond

. COGC C ’ s demand resul ted fro m Energy Search ’ s alleged failures to comply with

sev eral administrative regulations. RLI paid the bond penalty of $60,000 to COGCC in September 2017. In Febr uary 2018, Donald Ro buck ’ s son paid RLI $6,00 0 to partially offset the penalty. The pe tition alleges no facts regarding where the bond or indemnity agreements were sig n ed or are p erforma ble

. In Ma rch 2 018, RL I sued Energy Search , Donald, and Sharyn for breach of
contract in Har ris County, Texas

. RL I alle ged that it is a foreign co rpor ation with offices in Harris County, Texas. RLI further alleged that each defendant could be served with process at an address i n Aurora, Colorado. RLI served Energy Search3

and the Robucks at the Colorado address , but none of the defendants filed an

answer or otherwise responded to the suit. RL I filed a default judgme nt motion , attaching proof of service and affidavits concerning damages and at torney ’ s fees. The trial co urt signed a fi nal def ault ju dgment in RLI ’ s fa v or , awarding RLI $54,000 in damages for Energy Search ’ s and the Robuc k s ’ failure to perform under their indemnity agreements with RLI. The trial court did not award RLI attorney ’ s fees. Appellants filed a timely notice of restricted appeal. Analysis

To prevail i n a restricted appeal , t he appealing party must establish that: (1) it filed a notice of the restricted appeal within six month s after the ju dgment was signed; (2) it wa s a party to the underlying lawsu it; (3) it di d not participate in the heari n g that resulted in the judgment com plained of and did not timely file any post judgment motions or requests for findings of fact and conclusions of law ; and (4) error is apparent o n the face of the record. Ins. Co. of State of Pa. v. Lejeune , 297 S. W .3d 2 54, 255 (Tex. 2009); A lexander v. L ynda ’ s Boutique , 134 S.W.3d 845 , 848 ( T ex. 2004) ; see Tex. R. App. P. 26.1 ( c)

. The only dis puted issue is the final matter : whether error appears on the face of the record.

Ener gy Search and the Robucks f irst assert t hat error appears on the fac e of the record because RLI d id not alleg e sufficient jurisdic tional fact s to establish personal jurisdiction over them

. Whether a trial court has personal jurisdiction over a defendant is a question of law we review de novo. Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 574 (Tex. 2007); BMC Software Belgium, N.V. v. Marchand , 83 S.W.3 d 789, 794 (Tex. 20 02). Tex as courts may exercise jurisdiction over a nonresident if the Texas “ long

- arm ” statute authorizes the exercise of persona l jurisdiction and the exercise of jurisdicti on is consistent with4

federal and state constitutional guarantees of due process. Moki Mac , 221 S.W.3d at 574; BMC Software , 83 S.W.3d at 795. The Texas long

- arm statute authorizes Texas courts to e x ercise jur isdiction over a nonresident defendant who “do es business” in the state and provides a non

- exclusive list of activities that c onstitu te doing business in this state

. Tex. Civ. Prac. & Rem. Code § 17.042 ; see Novik v. Lendr, LL C , — S.W.3d

— , 2019 W L 5617882 , at *3 (Tex. App.

— Houston [14th Dist.] Oct. 31, 2019, n o pet

. h istory )

. Under section 17.042, a nonresident does business in Texas if

, among othe r things , it contracts with a Texas resident and either party is to perfo rm the contract in whole o r in part in Te x as , or if it commits a tort in whole or in part in Texas

. Tex. Civ. Prac. & Rem. Code § 17.042 (1), (2)

. A plaintiff bears the initi al burden of pleading sufficient factual allegations to bring the nonresident defendant within the provisio ns of the long

- arm s tatute. Kelly v. Gen. Interior Constr., Inc. , 301 S.W.3d 653, 658 (Tex. 2010) . Once the plaintiff ’ s pleadings establish jurisdiction, a nonresident defendant may file a special appearance to contest juris diction and may present eviden ce to supp ort its

co ntest. See Tex. R. Civ. P . 120a; Kelly , 30 1 S .W. 3d at 658. Energy Se arch and the Robucks did not file special appearances or othe r responsive pleadings ; thus, we have no contrary evidence i n the record to dispute the existence of RLI ’ s pleaded facts. A ccordingly, our review “ is es sentially limited to determining whether the jurisdictional facts pleaded by [RLI] , taken as true, affi rmatively demonstrated the t r ial court ’ s jurisdiction over [ Energy Search and th e Robucks ]. ” Cal

. Shock Trauma Air Rescue v. Holland , No. 03

- 09

- 00661

- CV, 2010 WL 3442212, at *3 (Tex. App.

— Austin Aug. 31, 2010, no pet. ) (mem. op.) (citing Kelly , 301 S.W. 3 d at 658; A lexander , 134 S.W.3d at 848 )

. RLI ’ s petition asserts no jurisdictional fact s regarding the R obucks or Energy Sea rch. The petition is notably silent as to whether appellants conduct5

bu siness in Texas, as that phrase is de scribed in the statute. In st e a d, RL I alleges only t he fo llowing f

act s :

• RLI is a fore ign corporation with a n office in Harr is C ounty;

• Energy Search is a foreign corporation , with it s registered agent located in Aurora, Color ado;

• Donald Robuck is an individual resi ding in Aurora, Colorado;

• Sharyn Robuck is an individual re siding in A urora, Colorado;

• RLI issued a bond to Energy Sear ch for potential lia bili ties in Colorado;

• Energy Search and the Robucks agreed to indemnify RLI for l iabilities associated with the bond;

• RLI received a demand from the C O GCC for payment o f th e bo nd;

• RLI paid the b ond amount to COGCC ;

• Energy Search an d th e Robucks failed to reimburse RLI for the bon d
pe nalty; and

• A non
- par ty , t he son of Donald Robuck, “ contributed $6,000 .00 toward p aymen t of the penalty

. ”
None of these facts , taken as true, demonstrate t hat th e nonresident defendants, Energ y Search and th e Robucks, “ do busin ess ” in the State of Texas or are amenable to serv ice under the long

- arm statute

. See Tex. Civ. Prac. & Rem. Co de §§ 17.041

- .045. Thus, nothing on the face of the record ind i cates that the trial court obtained personal jurisdiction ov er appellants

. See, e.g. , B MC Software , 83 S.W.3d at 795

.6

In support of the default jud gment , RLI relies on California Shock Traum a Air Rescue v. Holland , 2010 WL 3442212, and Herbert v. Greater Gulf Coast Enterp rises, Inc. , 915 S.W.2d 866 (Tex. App.

— Hou ston [1st D ist.] 19 95, no writ). I n both cases, however, the record demonstrated that the nonresident defe ndants

were amenable to jurisdi ction in Texas

. In California Shock Trauma Air Resc ue , the plaintiff alleged that Calstar , in telephone conversations and writin gs direc ted to her in Texas, made an agreement wit h her and then breached that agreement. See 2010 WL 344221 2 , at * 4. She further alleged that , in efforts to collect a debt, Ca lstar lied to her in phone call s and writings directed at Texas. I d. The cou rt of
ap peals determined that these pleadings alle ged f acts sufficient to invoke spe cific jurisdiction over Calstar because : (1) Calstar contracted “ w ith a Texas citizen in Texas via tele phon e conversations and written communications directed a t Texas and engage[ d] in tortious or fraudulent conduct via t hose same communications ” ; (2) “ Te xas ’ s public interest in protecting Texans from unconscionable conduct and illegal debt

- collection pract ices directed at Te xans by fore ign corporations also weig hs in favor of juri sdiction” ; and (3) “ the required nexus exi st[ed] b e t ween Calstar ’ s minimum c ontacts with Texas and its alleged liability to Holland [.] ” Id. Similarly, in He r bert , the Fir st Cour t of Appeals denied Connecticut resident Paul Herber t ’s p etition for writ of error 1 in p art because the court determin ed Greater Gulf Coast Enterprise’s allegations were sufficient to confer personal jurisdiction over Herbert. See Herbert , 915 S.W. 2 d at 87 0

- 71. G ulf Coast ’s pleadings alleged t hat Herbert viola t ed provisi ons of t he Texas Property Code while working on a Texas job site un der a contrac t with Texas resident Gulf Coast. See id. at 870.

1 The current restricted

- appeal procedure replaced the former writ

- of

- error procedure. A lexander , 134 S.W. 3d at 849.7

I n contrast, RLI did not allege that nonresidents Energ y Search or the Robucks conducted any b usiness in Texas , e ntered into a contr act p erforma ble in whole o r in part in Texas, or committed a tor t in whole or in part in Te xas

. See Tex. Civ. Prac. & Rem. Code § 17.042. Neither the bond nor the indemnification agreements are part of our record, so we cannot determin e whether anything in these instruments would per mi t the trial court to exercise jurisdiction over these nonresidents. Furt her, nothing in the record indicates that either the bond or indemnification a greements were performable in Texas , or that nonreside nts Energy Search or Robucks violat ed any specif ic Te xas statutes

. Cf. Herbert , 915 S.W. 2 d a t 870.
We conclude that RL I f

ailed to plead sufficient facts to confer jurisdiction

over appellants

. We may not “ indulge in inferences to determine whether a pl aintiff ha s suffic iently alleged jur isdictional facts

. ” Boreham v. Hartsell , 82 6 S. W .2d 193, 196 (Tex. App.

— Ho uston [1st Dist.] 1992, no writ) ; see also McKanna v. Edwards , 388 S.W.2d 927, 929

- 3 0 (Tex. 1965)

. In a restricted appeal attacking a defau lt ju dgment, th e record must affirmatively show that the t rial court had jurisdiction over the defendants

. See Whit ney v. L & L Realty Corp. , 5 00 S.W. 2d 94, 95 (Tex. 1973) ; McKanna , 388 S.W.2d at 930. Here , the record does
not show that the trial court acquir ed persona l jurisd iction over appellants

. W e sustain appellants ’ first issue. Appellants ask that this case be dismissed for want of personal jurisdiction

. However, “ [w]hen the pleading is wholly devoid of jurisdictional facts, the plaintiff should amend the plead ing to i nclude the necessary factual allega tions , see Tex. R. Civ. P. 63, thereby allowing jurisdictio n to be based on evidence rathe r than allegati ons, as it should be. ” Kelly , 301 S.W.3d at 659. Further, when a defa ult judgment is set aside, the ca se g enerally is remanded to the trial court for8

further proceedings. See Boyo v. Boyo , 196 S.W.3d 409, 41 7 (Tex. App.

— Beaumont 2006, no pet.) (citing Whitney , 500 S.W.2d at 97; McKanna , 388 S.W.2d at 930). Accordingly, th e proper remedy in this cas e is reman d to the trial
court

. Our resolution of th is issue makes it unnecessary to address appellants other i ssues, which would provide the same relief. See Tex. R. App. P. 47.1.
Conclusion Having concluded that the face of t he record d oes not demonstr ate person al juris diction over appellants , we reverse the default judgment and remand for proceedings consistent with this opinion.

/s/ Kevin Jewell Justice

Panel consists of Justices Jewell, Bourliot, an d Zimmerer

.