Bmc Software Belgium, N.V. v. Marchand, 14-99-01060-CV.
| Decision Date | 17 August 2000 |
| Docket Number | No. 14-99-01060-CV.,14-99-01060-CV. |
| Citation | 80 S.W.3d 52 |
| Parties | BMC SOFTWARE BELGIUM, N.V., Appellant, v. Michael MARCHAND, Appellee. |
| Court | Texas Court of Appeals |
Merritt B. Chastain, III, Thomas H. Wilson, Houston, for appellant.
Stuart M. Nelkin, Houston, for appellee.
Panel consists of Chief Justice MURPHY and Justices HUDSON and WITTIG.
BMC Software Belgium, N.V., appeals from the trial court's interlocutory order denying its special appearance contesting personal jurisdiction. See TEX.CIV.PRAC. § REM.CODE ANN. § 51.014(a)(7) (Vernon Supp.2000). BMC Belgium's contractor/employee Marchand, claims he was unlawfully denied stock options in the parent company, BMC Software, Inc., of Houston. Because we agree that appellant has sufficient minimum contacts with the forum state and that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice, we affirm the trial court's order.
This case involves claims by Michael Marchand against BMC Software, Inc., of Houston ("BMC"), and BMC Software Belgium, its wholly owned subsidiary ("BMC Belgium"). Marchand, a citizen and resident of Belgium, worked for Platinum Technologies, a competitor of BMC and BMC Belgium. Marchand entered into negotiations to leave Platinum and to go to work for BMC Belgium as a "country manager." He eventually met with Gerd Ordelheide, senior vice president of European operations for BMC and president of BMC Belgium.
At that meeting, Marchand alleges, Ordelheide confirmed that as part of the compensation package Marchand was to receive 20,000 options for shares of BMC stock.1 Marchand alleges that Ordelheide told him that if Marchand were interested in joining BMC Belgium, Ordelheide would be required to obtain approval for the grant of stock options from Max Watson, chairman of the board of directors and chief executive officer of BMC in Houston. Soon thereafter, Ordelheide informed Marchand that the grant of options had been approved.
Marchand alleges that he subsequently met with Ordelheide and two representatives of both BMC and BMC Belgium to finalize the employment agreement. The parties agreed to the terms by which Marchand would work for BMC Belgium. The agreement was memorialized by a March 29, 1996, letter, detailing some of the terms and specifically providing for the 20,000 share options in BMC, subject to BMC board approval. The letter, on "BMC Software" letterhead, was signed by Adri Kok and another individual, both identified as directors of BMC Belgium. The terms were further modified, memorialized by a memo dated April 1, 1996, again on "BMC Software" letterhead and signed by Kok and Marchand. The final management agreement was signed June 13, 1996, by Kok and Ordelheide, as directors for BMC Belgium, and by Marchand, as director of Procurement N.V., identified as a contractor. This final original agreement was in German. The parties agreed that this contract, describing the working relationships, would be governed by Belgium law and that the court at Brussels would have exclusive jurisdiction. However, the BMC "Employee Incentive Plan" dealing with stock options, ( defining subsidiary's employees as BMC employees), contains a general Texas choice-of-law clause.2
On April 22, 1996, Marchand began working for BMC Belgium. He made several unsuccessful attempts to obtain the BMC options that he alleges he had been promised. In July 1997, Marchand was notified that he was being terminated. In February 11, 1998, Marchand, through an attorney, demanded the BMC options he purportedly had been promised. After this final refusal, he filed suit.
BMC Belgium raises two issues: whether the trial court erred in (1) denying BMC Belgium's special appearance because BMC Belgium has engaged in no purposeful act within Texas, had no minimum contacts with Texas, and is not the alter ego of BMC, and (2) denying the special appearance because to assert jurisdiction over BMC Belgium offends traditional notions of fair play and substantial justice.
The existence of personal jurisdiction is a question of law. See BHP de Venezuela a/k/a BHP Venca v. Casteig, 994 S.W.2d 321, 326 (Tex.App. — Corpus Christi 1999, pet. denied). To resolve a question of personal jurisdiction, the district court often must resolve underlying factual disputes. See Dowelanco v. Benitez, 4 S.W.3d 866, 870 (Tex.App. — Corpus Christi 1999, no pet.). We review the resolution of these factual disputes under an ordinary sufficiency of the evidence standard. See Smith v. Lanier, 998 S.W.2d 324, 329 (Tex.App. — Austin 1999, pet. denied). If the evidence supports the implied finding of fact, we must uphold the district court's judgment on any theory supported by the evidence. See Fish v. Tandy Corp., 948 S.W.2d 886, 892 (Tex. App. — Fort Worth 1997, writ denied). When the district court does not file findings of fact in a special appearance, all questions of fact are presumed to support the judgment. See Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 802 (Tex.App. — Houston [1st Dist.] 1998, pet. denied). The presumption is that the court has jurisdiction over the parties; the nonresident defendant must negate all possible bases of personal jurisdiction. See Kawasaki Steel Corp. v. Middleton. 699 S.W.2d 199, 203 (Tex.1985).
For a Texas court to exercise jurisdiction over a nonresident defendant, the Texas long-arm statute must authorize the exercise of jurisdiction, and the exercise of jurisdiction must be consistent with federal and state due-process guarantees. See Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990). The long-arm statute authorizes jurisdiction over a nonresident defendant (1) where the nonresident contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in Texas, and (2) where the nonresident commits a tort in whole or in part in Texas. See TEX.CIV PRAC. & REM.CODE ANN. § 17.042 (Vernon 1997). The statute also permits the exercise of personal jurisdiction where the nonresident is "doing business" in Texas by "other acts." See id. The broad language of the statute's "doing business" requirement permits the statute to reach as far as the federal constitutional requirements of due process will allow. See Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).
To comply with the federal constitutional standard, Texas uses the following test: (1) The nonresident defendant must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, the act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. See Schlobohm, 784 S.W.2d at 358.
The first prong of the jurisdictional analysis is to determine whether the nonresident defendant "purposefully" established "minimum contacts" with the state. See Guardian Royal, 815 S.W.2d at 230. In establishing minimum contacts, a court may have "general" or "specific" jurisdiction over the defendant. See id. General jurisdiction exists where the defendant has maintained continuous and systematic contacts with the forum state so that it is amenable to all suits there. See id. Specific jurisdiction exists where the injury to the plaintiff arises out of the minimum contacts with the forum state. See id. Specific jurisdiction may arise without the nonresident defendant setting foot upon the forum state's soil or may arise from the commission of a single act directed at the forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). In determining whether the exercise of jurisdiction comports with the traditional notions of fair play and substantial justice, the court considers (1) the burden on the defendant; (2) the interest of the forum state in adjudicating the dispute; (3) the plaintiff's 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. See Guardian Royal, 815 S.W.2d at 228. When the defendant is a resident of another nation, the district court also must consider (a) the unique burdens placed upon the defendant who must defend itself in a foreign legal system, and (b) the procedural and substantive policies of other nations whose interests are affected as well as the federal government's interest in its foreign relations polices. See id. at 229.
We will examine first the question of general jurisdiction. When we view the evidence before the trial court in the light most favorable to the trial court's decision, we find BMC Belgium had sufficient continuous and systematic contacts with the parent company, and thus the forum state, to satisfy the trial court's finding of minimum contacts.
The proof before the trial court showed that Ordelheide, who Marchand said was a representative of both BMC Belgium and BMC, contacted Max Watson, chairman and CEO of Houston-based BMC, to obtain approval for the grant of the 20,000 options at issue. The proof further shows that the offer was approved in Houston and passed back to Ordelheide. The subject property of the various transactions, stock in Houston based BMC, could be finally negotiated, agreed, approved, and issued only in Houston.
Further, Watson, in his deposition,...
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Bmc Software Belgium, N.V. v. Marchand
...appeal from the denial of a foreign corporation's special appearance. A divided court of appeals affirmed the trial court's ruling. 80 S.W.3d 52. We conclude that the foreign corporation's contacts with Texas are insufficient to create either specific or general jurisdiction. We also conclu......