TV Azteca, S.A.B. de C.V. v. Ruiz

• Decision Date: 30 January 2014
• Docket Number: No. 13–12–00536–CV.,13–12–00536–CV.
• Parties: TV AZTECA, S.A.B. de C.V., Patricia Chapoy, and Publixman, S.A. De C.V., Appellants, v. Gloria de los Angeles Trevino RUIZ, Individually and on Behalf of Her Minor Child, Angel Gabriel De Jesus Trevino, and Armando Ismael Gomez Martinez, Appellees.
• Court: Texas Court of Appeals

494 S.W.3d 109

TV AZTECA, S.A.B. de C.V., Patricia Chapoy, and Publixman, S.A. De C.V., Appellants,

v.Gloria de los Angeles Trevino RUIZ, Individually and on Behalf of Her Minor Child, Angel Gabriel De Jesus Trevino, and Armando Ismael Gomez Martinez, Appellees.

No. 13–12–00536–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Jan. 30, 2014.

Chris Franz, Attorney at Law, McAllen, TX, Gil P. Peralez, Attorney at Law, Merritt Clements, Attorney at Law, San Antonio, TX, Holly Dobbs Arnold, Hon. Thomas J. Forestier, Winstead PC, Houston, TX, Jorge A. Padilla, Austin, TX, Paul C. Walter, Dallas, TX, for Appellants.

Rebecca Vela, Yzaguirre & Vela, PLLC, Raymond L. Thomas, Kittleman, Thomas & Gonzalez, David H. Jones, Law Office of David H. Jones, McAllen, TX, for Appellees.

Before Chief Justice VALDEZ and Justices BENAVIDES and LONGORIA.

MEMORANDUM OPINION

Memorandum Opinion by Chief Justice VALDEZ

.

Appellants, TV Azteca, S.A.B. de C.V., Patricia Chapoy, and Publimax, S.A. de C.V. (the “Media Defendants”), complain in this accelerated interlocutory appeal that the trial court erred in denying their special appearance in a suit brought by appellees, Gloria de los Angeles Trevino Ruiz (aka “Gloria Trevi”), individually and on behalf of her minor child, Gabriel de Jesus Trevino, and Armando Ismael Gomez Martinez (the “Trevi Parties”). See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7)

(West 2008); TEX.R.APP. P. 28.1. Appellants contend by five issues, that the trial court erred by: (1) denying their special appearance; (2) finding that it had specific jurisdiction over the Media Defendants; (3) finding that it had general jurisdiction over the Media Defendants; (4) finding that exercising personal jurisdiction over the Media Defendants would not offend traditional notions of fair play and substantial justice; and (5) overruling the appellants' objections to the affidavit testimony of Francisco Peña,¹ the affidavit and deposition testimony of Patti Sunday, the deposition testimony of Othon Frias Calderon, and the deposition testimony of Vicente Diaz. We affirm.

I. STANDARD OF REVIEW

Whether the trial court has personal jurisdiction over a defendant is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002)

. The plaintiff bears the initial burden of pleading “sufficient allegations to bring a nonresident defendant within the provisions of the [Texas] long-arm statute.” Id. at 793. However, when a defendant files a special appearance, he assumes the burden of negating all bases of personal jurisdiction asserted by the plaintiff. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007) ; BMC Software, 83 S.W.3d at 793 ; El Puerto de Liverpool, S.A. de C.V. v. Servi Mundo Llantero, S.A. de C.V., 82 S.W.3d 622, 628 (Tex.App.-Corpus Christi 2002, pet. dism'd w.o.j.)

. The trial court determines the special appearance by referring to the pleadings, any stipulations made by and between the parties, any affidavits and attachments filed by the parties, discovery, and any oral testimony. TEX.R. CIV. P. 120a(3).

When the trial court issues findings of fact and conclusions of law, we may review the findings of fact for legal and factual sufficiency. BMC Software, 83 S.W.3d at 794

. We review a trial court's legal conclusions de novo. Moki Mac, 221 S.W.3d at 574 (citing BMC Software, 83 S.W.3d at 794 ). The appellant may not challenge the trial court's conclusions of law as factually insufficient; however, the appellate court may “review the trial court's legal conclusions drawn from the facts to determine their correctness.” Id.

If the trial court does not issue findings of fact and conclusions of law, we must imply all facts necessary to support the judgment if those facts are supported by the evidence. BMC Software, 83 S.W.3d at 795

(citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) ; Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex.1987) ; In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984) ). “When ... the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in favor of its ruling.” Glattly v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805–06 (Tex.2002) ). However, “we review de novo if the underlying facts are undisputed or otherwise established.” Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st Dist.] 2000, pet. dism'd w.o.j.). Any implied findings are not conclusive and may be challenged for legal and factual sufficiency if the appellate record contains the reporter's and clerk's records. Id. “For legal sufficiency points, if there is more than a scintilla of evidence to support the finding, the no evidence challenge fails.” Id.

II. PERSONAL JURISDICTION

Texas courts have personal jurisdiction over a nonresident defendant only if it is authorized by the Texas long-arm statute, see Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (West 2008)

, which allows Texas courts to exercise personal jurisdiction over nonresident defendants who are doing business in Texas. Id.;

BMC Software, 83 S.W.3d at 795. The Texas long-arm statute sets out several activities that constitute “doing business” in Texas; however, the list is not exclusive, and Texas's long arm statute's “broad language extends Texas courts' personal jurisdiction ‘as far as the federal constitutional requirements of due process will permit.’ ” BMC Software, 83 S.W.3d at 795 (quoting U–Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977) ). Therefore, “the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations.” CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996).

Under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, a Texas court has personal jurisdiction over a nonresident defendant when (1) the nonresident defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)

; BMC Software, 83 S.W.3d at 795 ; see U.S. CONST. amend. XIV, § 1. “The exercise of personal jurisdiction is proper when the contacts proximately result from actions of the nonresident defendant which create a substantial connection with the forum state.” Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)

.

Minimum contacts may be found when the nonresident defendant purposefully avails himself of the privileges and benefits inherent in conducting business in the forum state.² Moki Mac, 221 S.W.3d at 575

(“[A] defendant must seek some benefit, advantage or profit by ‘availing’ itself of the jurisdiction.”) (quoting Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.2005) ); Michiana, 168 S.W.3d at 784 (“For half a century, the touchstone of jurisdictional due process has been ‘purposeful availment.’ ”); see

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Minimum contacts with the forum state may establish either specific or general jurisdiction over the nonresident defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). There is specific jurisdiction over the nonresident defendant if the defendant purposefully directed his activities at residents of Texas and the litigation arose from or related to those contacts. See

Burger King, 471 U.S. at 472, 105 S.Ct. 2174 ; Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868 ; Guardian Royal, 815 S.W.2d at 227. In other words, there must be a substantial connection between the nonresident defendant's contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d at 585. The forum state has general jurisdiction over the nonresident defendant if the defendant's contacts in the forum state are continuous and systematic. BMC Software, 83 S.W.3d at 796. General jurisdiction allows the forum state to exercise personal jurisdiction over the defendant “even if the cause of action did not arise from or relate to activities conducted within the forum state.” Id.

III. PERSONAL JURISDICTION IN DEFAMATION SUITS

In determining whether the nonresident defendant that is sued for defamation has had minimum contacts with the forum state, the United States Supreme Court has provided a framework for courts to follow. See Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1983)

; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1983). In Keeton, the United States Supreme Court overturned the lower court's dismissal of the plaintiff's libel cause of action against the publisher of a magazine. Keeton, 465 U.S at 772, 104 S.Ct. 1473. The plaintiff, who was not a resident of New Hampshire, sought relief in New Hampshire because the statute of limitations had run in her home state. Id. at 773, 104 S.Ct. 1473. The Supreme Court held that the defendant's “regular circulation of magazines in [New Hampshire] is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine.” Id. at 773–74, 104 S.Ct. 1473. The Court citing the lower court's findings stated that “[t]he general course of conduct in circulating magazines throughout the states was purposefully directed at New Hampshire, and inevitably affected persons in the state.” Id. at 774, 104 S.Ct. 1473

. The Court explained that

[s]uch regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous. It is, therefore, unquestionable that New Hampshire's jurisdiction over a complaint based on those contacts would ordinarily satisfy the

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