NUMBER 13-21-00102-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

DIXIE WALRATH DETURK, Appellant,

 v. 

JAMES LOREN WALMER, Appellee.

 

On appeal from the 332nd District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION 

Before Justices Longoria, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant Dixie Walrath Deturk appeals the trial court’s order sustaining appellee 

James Loren Walmer’s special appearance and dismissing Deturk’s petition for lack of 

personal jurisdiction over Walmer. By a single issue, Deturk argues the trial court erred 

because Deturk’s attorney and Walmer entered into a contract that was partially 
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performable in Texas, which provides personal jurisdiction pursuant to Texas’s long-arm 

statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(1). We affirm.

I. BACKGROUND

According to Deturk’s first amended petition, she hired Walmer to represent her in 

Indiana, where Walmer is licensed to practice law, for a probate case related to Deturk’s 

late husband. Around the same time, Deturk hired Texas attorney Harold Tummel1,

seeking an accounting for a related matter. Deturk alleged that Tummel and Walmer 

entered into an oral contract “that [Walmer] and Tummel would coordinate their efforts 

and activities on [Deturk]’s behalf, that [Walmer] and Tummel would share documents 

and other relevant evidence, and that [Walmer] and Tummel would keep each other 

informed of significant developments in their representations of [Deturk].”

On May 20, 2019, a hearing was scheduled in Indiana on Deturk’s probate claim. 

Although Walmer moved for a continuance on Deturk’s behalf, the Indiana trial court 

denied the motion and proceeded to hear the probate claim. Deturk alleges that “[Walmer] 

presented no evidence” in support of the probate claim, which the Indiana trial court 

denied with prejudice. The Indiana court held in relevant part:

Claimant, [Deturk], fails to personally appear, but does appear by counsel. 

Counsel for Claimant moved to continue trial scheduled this date. Motion 

denied. Claimant having failed to personally appear and failing to present 

any evidence in support of her [c]laim this date, the [c]ourt NOW 

DISMISSES [c]laim [n]o. 1 filed July 31, 2018, with prejudice, all pursuant 

to I.C. 29-1-14-12.

According to Deturk, Walmer did not appeal the Indiana trial court’s order on Deturk’s 

1 Tummel represents Deturk in the present suit, as well. 
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behalf, which made the order “a final non-appealable judgment,” creating “a res-judicata 

bar to [her] claims made subjects of the Texas [c]ase.”

Deturk alleged that Walmer materially breached the contract with Tummel by 

“failing to coordinate [his] efforts and activities on [Deturk]’s behalf, with Tummel’s efforts 

and activities on [Deturk]’s behalf,” “by failing to share documents and other relevant 

evidence with Tummel,” and “by failing to keep Tummel informed of significant 

developments in [Walmer]’s representation of [Deturk].” Deturk sought compensatory and 

exemplary damages, pre and post judgment interest, costs of court, and reasonable 

attorney’s fees.

Walmer specially appeared, alleging that the trial court lacked personal jurisdiction 

over him because he “does not reside in, nor has he ever resided in, the [s]tate of Texas,” 

“is not now, nor has he ever been, licensed to practice law in the [s]tate of Texas,” “does 

not now engage and has not engaged in the practice of law nor in any business in Texas[,] 

nor committed any actionable wrong, in whole or in part, within the [s]tate of Texas,” “does 

not maintain a place of business in Texas, and has no employees, servants, or agents 

within the [s]tate of Texas,” “has not entered into a contract by mail or otherwise with a 

Texas resident which contract was performable in whole or in part within the [s]tate of 

Texas,” and “does not recruit and has not recruited any Texas resident, either directly or 

through an intermediary, as an employee.” See TEX. R. CIV. P. 120a. Walmer attached 

affidavits by himself and his wife, Carolyn Walmer, which affirmed that the statements in 

the special appearance were true and correct. Walmer also included a brief in support of 

his special appearance.
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Deturk filed a response to Walmer’s special appearance, which included various 

exhibits. Therein, Deturk argued that “[Walmer] and [Tummel] contracted to cooperate in 

their respective representations of [Deturk]” and that the contract required Tummel to 

perform his portion of that cooperation in Texas. Among the exhibits provided was an 

unsworn declaration by Tummel that stated “Walmer and [he] agreed that [they] could 

keep each other informed of significant developments in [their] respective cases, that 

[they] would share documents and other evidence [they] obtained on [Deturk]’s behalf, 

and [they] would coordinate efforts so as to avoid taking inconsistent actions to [Deturk]’s 

detriment.” Tummel averred that Walmer sent him copies of a premarital agreement 

between Deturk and her late husband, which Tummel confirmed receipt via fax.

Tummel acknowledged that Walmer “did not go to law school in Texas and was 

never licensed to practice law in Texas,” “did not profess to be familiar with Texas 

substantive” or “procedural law,” and “did not suggest that he was associated with any 

attorney licensed to practice law in the [s]tate of Texas.” Tummel further claimed that 

Walmer did not provide him with a copy of the claim filed in Indiana on Deturk’s behalf, 

“did not discuss the [c]laim or its filing with [Tummel],” “did not ask [Tummel] for help in 

gathering evidence to present in the [p]robate [c]ase,” “did not ask [Tummel] for any 

evidence,” and “never asked [Tummel] to do anything on [Deturk]’s behalf.”

Walmer responded, objecting to much of Tummel’s affidavit as providing 

“conclusory opinions without any factual basis,” providing legal conclusions, and 

incorrectly applying law to facts. Walmer further objected to Tummel’s affidavit, arguing

that Tummel is a material witness and Deturk’s counsel in the breach of contract suit. See
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TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.08(a), reprinted in TEX. GOV’T CODE ANN.,

tit. 2, subt. G, app. A (TEX. STATE BAR R. art. X, § 9) (prohibiting attorneys from 

representing a client “if the lawyer knows or believes that the lawyer is or may be a witness 

necessary to establish an essential fact on behalf of the lawyer’s client”). Walmer 

otherwise argued that Tummel’s affidavit supported Walmer’s special appearance rather 

than demonstrated that the trial court possessed personal jurisdiction over him. Finally, 

Walmer argued that Tummel’s affidavit demonstrated that all the acts described in 

Tummel’s affidavit were unilateral acts by Tummel, not Walmer, which cannot “establish 

minimum contacts or constitute purposeful availment.” According to Walmer, allowing the 

trial court to exercise jurisdiction over him under the alleged facts “would be the grossest 

offense to traditional notions of fair play and substantial justice.”

After a hearing on Walmer’s special appearance2, the trial court sustained his 

objections to Tummel’s affidavit and his special appearance, dismissing Deturk’s case for 

lack of personal jurisdiction over Walmer. This appeal followed.

II. STANDARD OF REVIEW

Whether personal jurisdiction exists over a defendant is a question of law which 

we review de novo. Searcy v. Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016). “The 

plaintiff bears the initial burden of pleading allegations that suffice to permit a court’s 

exercise of personal jurisdiction over the nonresident defendant.” Id. If the plaintiff meets 

this burden, “the defendant then assumes the burden of negating all potential bases for 

2 A transcript of the hearing was not provided to this Court as part of the record. See TEX. R. APP.

P. 34.6(b).
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personal jurisdiction that exist in the plaintiff’s pleadings.” Id. When determining whether 

personal jurisdiction exists as a matter of law, the trial court may be required to decide 

questions of fact. Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 8 (Tex. 

2021). “When, as here, the trial court does not issue findings of fact and conclusions of 

law with its judgment, we presume all factual disputes were resolved in favor of the trial 

court’s decision unless they are challenged on appeal.” Id.

III. APPLICABLE LAW

Personal jurisdiction implicates a trial court’s authority to bind a particular party to 

a judgment. Id. at 8. “Texas courts may assert personal jurisdiction over a nonresident if 

(1) the Texas long-arm statute authorizes the exercise of jurisdiction and (2) the exercise 

of jurisdiction is consistent with federal due-process guarantees.” Id. Among the grounds 

for exercising personal jurisdiction enumerated in Texas’s long-arm statute is if the party 

is “doing business” in this state, which includes contracting “with a Texas resident and 

either party is to perform the contract in whole or in part in this state.” TEX. CIV. PRAC. &

REM. CODE ANN. § 17.042(1). However, the Texas long-arm statute only reaches as far 

as federal due-process protections permit. Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 918 (2011); Luciano, 625 S.W.3d at 8.

A state’s exercise of personal jurisdiction is consistent with federal due-process 

protections if the defendant has established “minimum contacts” with the forum state and 

exercising jurisdiction would “not offend ‘traditional notions of fair play and substantial 

justice.’” Luciano, 625 S.W.3d at 8 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 

316 (1945)). Depending on the nature and degree of the defendant’s contacts with the 
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forum state, the forum state may have either general or specific jurisdiction. Id. General 

jurisdiction exists “over a nonresident defendant whose affiliations with the state are so 

continuous and systematic as to render it essentially the home in the forum state.” Id.

(cleaned up). Specific jurisdiction, on the other hand, “covers defendants less intimately 

connected with a [s]tate, but only as to a narrower class of claims.” Id. (quoting Ford Motor 

Co. v. Montana Eighth Judicial Dist. Ct., 141 S. Ct. 1017, 1024 (2021)). “The minimum 

contacts necessary for specific jurisdiction are established if the defendant purposefully 

avails himself of the privilege of conducting activities in the forum state and the suit arises 

out of or relates to the defendant’s contacts with the forum.” Id. at 8–9 (cleaned up).

However, jurisdiction cannot turn on simply whether a plaintiff merely alleges wrongdoing, 

or a defendant denies wrongdoing. Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 

550, 560 (Tex. 2018).

A defendant has purposefully availed himself of a state’s personal jurisdiction 

where he deliberately engaged in significant activities within that state, such that he has 

received the “privilege of conducted business there.” Luciano, 625 S.W.3d at 9 (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76 (1985)). In determining whether 

a defendant has established minimum contacts with a forum state, “we look only to the 

defendant’s contacts with the forum and not the unilateral activity of some third party.” Id.

(cleaned up). “On their own, numerous telephone communications with people in Texas 

do not establish minimum contacts . . . .” Bell, 549 S.W.3d at 560. “[T]he contacts relied 

upon must be purposeful rather than random, fortuitous, or attenuated . . . . [T]he 

defendant must seek some benefit, advantage[,] or profit by availing [him]self of the 
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jurisdiction.” Id. at 599 (quoting Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 

151 (Tex. 2013)).

IV. ANALYSIS

By a single issue, Deturk argues “Walmer purposefully availed himself of resources 

within Texas by agreeing with Tummel to cooperate and coordinate with Tummel in 

representing [her].” Deturk specifically argues that 

Walmer availed himself of: (1) Tummel’s license to practice law in Texas; 

(2) Tummel’s education, training[,] and experience in Texas law; 

(3) Tummel’s skills and experience as a Texas civil trial and appellate 

attorney with more than 35 years of civil trial and appellate experience; 

(4) Tummel’s law firm’s financial resources; (5) Tummel’s law firm’s 

organizational resources; and (6) Tummel’s commitment to Walmer’s client, 

to represent [Deturk]’s interests with diligence and zeal.

Deturk further specifies that 

Walmer also availed himself of: (1) the ability, through Tummel, to file and 

prosecute lawsuits in Texas on [Deturk]’s behalf; (2) the ability, through 

Tummel, to defend [Deturk] in lawsuits in Texas; (3) the ability, through 

Tummel, to compel persons in Texas to testify, and to compel persons in 

Texas to produce tangible and intangible evidence, for [Deturk]’s benefit; 

(4) the ability, through Tummel, to bring the power of the [s]tate of Texas to 

bear in litigating [Deturk]’s claims and defenses in Texas, for [Deturk]’s 

benefit; and (5) the ability, through Tummel, to bring the power of the United 

States of America to bear in litigating in Texas, when appropriate, [Deturk]’s 

claims and defenses, for [Deturk]’s benefit.

However, notwithstanding the trial court sustaining Walmer’s objections to 

Tummel’s affidavit, which Deturk does not challenge, there is no evidence in the record 

that supports Deturk’s assertions. See Luciano, 625 S.W.3d at 9. Nothing in the record 

suggests the Indiana suit implicated Texas substantive or procedural law nor required the 

expertise or assistance of a Texas attorney. Rather, the evidence submitted reflects that 

Walmer’s contacts with Texas were random, fortuitous, and attenuated, or otherwise 
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unilateral. See id.; Bell, 549 S.W.3d at 559. Tummel stated that Walmer did not provide 

Tummel a copy of the pleadings filed in Indiana, discuss the claim or its filing with him, 

ask him to gather or provide evidence, or ever ask him to do anything on Deturk’s behalf.

See Luciano, 625 S.W.3d at 9. The extent of Walmer’s communication to Tummel 

involves an unknown number of phone calls and sending Tummel a copy of a premarital 

agreement between Deturk and her late husband. See id. Further, it was Tummel, not 

Walmer, that initiated the contact. See id. Lastly, Tummel acknowledged there was no 

fee sharing agreement between the two attorneys. See Bell, 549 S.W.3d at 559.

Deturk did not present any evidence that Walmer required Tummel’s assistance or 

services in Texas that demonstrated that Walmer sought to gain some benefit, advantage, 

or profit. See id. Indeed, the evidence presented by Deturk confirms that Walmer’s 

connections with Texas were fortuitous rather than purposeful in that his client was in 

Texas at the time of the suit and hired a Texas attorney to pursue a separate but

tangentially related claim. See id. Permitting this state to exercise personal jurisdiction 

over Walmer under these facts would offend “traditional notions of fair play and 

substantial justice.” See Int’l Shoe Co., 326 U.S. at 316; Brown, 564 U.S. at 918; Luciano, 

625 S.W.3d at 9.

Additionally, Deturk did not request findings of fact and conclusions of law from the 

trial court nor provide this Court with a copy of the reporter’s record of the hearing. 

Accordingly, we must presume the trial court made all necessary findings of fact to 

support its conclusion, including that Walmer and Tummel did not enter an oral contract 

to share information for Deturk’s benefit. See Luciano, 625 S.W.3d at 8. Deturk did not 
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put forth any other mechanism by which Texas could exercise long-arm jurisdiction over 

Walmer. See Searcy, 496 S.W.3d at 66; see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 17.042(1). Thus, Walmer met his “burden of negating all potential bases for personal 

jurisdiction that exist in [Deturk]’s pleadings.” See Searcy, 496 S.W.3d 66. We conclude 

that Texas lacks personal jurisdiction over Walmer as a matter of law. See id.; Luciano, 

625 S.W.3d at 9. The trial court did not err by dismissing Deturk’s suit. Deturk’s sole issue 

is overruled.

V. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

Justice

Delivered and filed on the

28th day of July, 2022.