Conner v. ContiCarriers and Terminals, Inc., 14-95-00332-CV

Citation944 S.W.2d 405
Decision Date30 January 1997
Docket NumberNo. 14-95-00332-CV,14-95-00332-CV
PartiesBill and Marcella CONNER, Appellants, v. CONTICARRIERS AND TERMINALS, INC., Appellee. (14th Dist.)
CourtCourt of Appeals of Texas

John W. Stevenson, David A. Furlow, Kenneth M. Morris, Houston, for appellants.

Chris A. Lorenzen, Kathleen Hopkins Alsina, Houston, Michael A. McGlone, Kent B. Ryan, New Orleans, LA, for appellee.



HUDSON, Justice.

Bill and Marcella Conner ("the Conners") appeal from the trial court's order sustaining ContiCarriers and Terminals, Inc.'s ("ContiCarriers") motion for special appearance. The issues before this court are: (1) whether maintaining an agent for service and being authorized to do business in the state constitutes consent to a Texas court's general personal jurisdiction; and (2) if ContiCarriers's corporate presence is not sufficient to establish consent to jurisdiction, whether the corporation had the necessary, "systematic and continuous" contacts with Texas to warrant a state court's exercise of general personal jurisdiction. We find ContiCarriers did not consent and did not have the necessary contacts with Texas to warrant the exercise of a state court's jurisdiction. We affirm the trial court's order.

On July 24, 1991, the MV Conti Arlie, a push boat, collided with the MV Easy Street in the middle of the Mississippi River. Bill Conner, a chief engineer on the MV Conti Arlie, was injured in the accident. Conner was employed by ContiCarriers, the operator of the MV Conti Arlie. ContiCarriers is a subsidiary of Continental Grain, Inc. ("Continental Grain"), a Delaware corporation with its principal place of business in Chicago, Illinois. The other vessel in the accident, the MV Easy Street, was operated by Hollywood Marine, Inc., a Texas corporation. The Conners, who are Louisiana residents, filed suit against ContiCarriers, Continental Grain, Hollywood Marine, and several other defendants, seeking damages for negligence under common law and the Jones Act. See 46 U.S.C.App. § 688 (West Supp.1996).

ContiCarriers responded by filing a special appearance claiming the trial court had no personal jurisdiction over it. The trial court sustained ContiCarriers' special appearance and entered forty-nine findings of fact and six conclusions of law. On January 20, 1995, a severance of the Conners' claims rendered the trial court's order appealable against ContiCarriers. In six points of error, the Conners contend the trial court erred in sustaining ContiCarriers' special appearance.

Rule 120a of the Rules of Civil Procedure allows a nonresident defendant to challenge a court's jurisdiction without voluntarily subjecting himself to the jurisdiction of the court or waiving any objections to the court's actions. C.W. Brown Mach. Shop, Inc. v. Stanley Mach. Corp., 670 S.W.2d 791, 793 (Tex.App.--Fort Worth 1984, no writ). A Texas court may exercise 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 and state guarantees of due process. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990).


The long-arm statute expressly authorizes the exercise of jurisdiction over a nonresident who does business in Texas. While the statute enumerates several specific acts that constitute "doing business," it also broadly includes any "other acts that may constitute doing business." Schlobohm, 784 S.W.2d at 355-57; TEX. CIV. PRAC. & REM.CODE ANN.

Page 410

§ § 17.041-17.069 (Vernon 1986 & Supp.1996). 1

While the Conners contend that ContiCarriers has, in previous years, contracted with Texas businesses to perform work in this state, the record does not substantiate this claim. In each instance cited by the Conners, the record either (1) reflects that ContiCarriers wholly performed the work outside Texas, or (2) fails to show that ContiCarriers contracted with a Texas business. Thus, none of the specific acts enumerated in the statute are present here. We must, therefore, examine whether ContiCarriers' conduct falls within the "other acts" provision of the statute. TEX. CIV. PRAC. & REM.CODE ANN. § 17.042 (Vernon 1986).

The broad "other acts" language of the long-arm statute permits an expansive reach, limited only by federal constitutional requirements of due process. The issue presented here, therefore, is whether a finding of jurisdiction under the facts of this case is consistent with federal due process protections. See Guardian Royal Exch. Assurance Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991); Schlobohm, 784 S.W.2d at 357; see also Dominion Gas Ventures, Inc. v. N.L.S., Inc., 889 F.Supp. 265, 267 (N.D.Tex.1995).


The requisite due process considerations are: (1) whether the nonresident has purposefully established "minimum contacts" with the forum state; and, if so, (2) whether the exercise of jurisdiction comports with fair play and substantial justice. Guardian Royal, 815 S.W.2d at 226.

A. Minimum Contacts: Because an individual should have fair warning that a particular activity may subject him to the jurisdiction of a foreign sovereign, a nonresident defendant will not be haled into a foreign jurisdiction solely because of "random, fortuitous or attenuated" contacts or because of the "unilateral activity of another party or third person." The nonresident must take some action or engage in some conduct to create a "substantial connection" with the forum state adequate to establish minimum contacts. Id.

While fair warning or foreseeability is an important consideration in deciding whether a nonresident defendant has purposefully established "minimum contacts" with a forum state, it is not an independent component of the minimum contacts analysis. Foreseeability, however, is implicit in determining whether there is a "substantial connection" between the nonresident defendant and the forum state. If, by his actions or conduct, a nonresident has purposefully availed himself of a state's benefits and the protection of its laws, he has established a "substantial connection" with the state and subjected himself to a state court's jurisdiction. Guardian Royal, 815 S.W.2d at 226-227.

The minimum contacts requirement is satisfied if either general or specific jurisdiction exists. Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 98 (Tex.App.--Houston [14th Dist.] 1995, writ denied). Specific jurisdiction attaches when the plaintiff's cause of action arises out of, or relates to the nonresident defendant's contacts with the forum state. To invoke a state's specific jurisdiction, the defendant's activities must have been "purposefully directed" to the forum and the litigation must arise from or relate to those activities. In contrast, a nonresident defendant may be subject to a state's general jurisdiction because of continuous and systematic contacts with the state, even if the underlying cause of action did not arise from purposeful conduct in the state. Vosko, 909 S.W.2d at 98 (citing Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769, 772 (Tex.1995)). Here, the parties agree that general, not specific, jurisdiction applies to this case.

Page 411

When general jurisdiction is alleged, a court's minimum contacts inquiry is broader, more demanding, and requires a showing of substantial activities in the forum state. Schlobohm, 784 S.W.2d at 357

B. Fair Play and Substantial Justice: Once a nonresident's minimum contacts with the forum state have been established, those contacts are evaluated in light of other legal factors to determine whether a finding of personal jurisdiction comports with principles of substantial justice and fair play. These factors include (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. Sometimes the exercise of jurisdiction may not be reasonable even if the nonresident defendant has purposely established minimum contacts with the forum state. Guardian Royal, 815 S.W.2d at 228. In such an instance, however, the nonresident defendant must present a compelling argument establishing that the exercise of jurisdiction would be unreasonable. Guardian Royal, 815 S.W.2d at 231; Vosko, 909 S.W.2d at 98-99.


Existence of personal jurisdiction is a question of law, but proper exercise of that jurisdiction must sometimes be preceded by the resolution of underlying factual disputes. The standard of review to determine the appropriateness of the trial court's resolution of those facts is an ordinary sufficiency of the evidence review. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.--Dallas 1993, writ denied). The scope of that review includes all evidence in the record. 2 Vosko, 909 S.W.2d at 99.

If a special appearance is based on undisputed or otherwise established facts, an appellate court shall conduct a de novo review of the trial court's order granting a special appearance. See Hotel Partners v. Craig, No. 05-92-01625-CV, slip op. at 2, 1994 WL 719707 (Tex.App.--Dallas, December 30, 1994, n.w.h.) (citing Guardian Royal, 815 S.W.2d at 232). Despite the Conners' concessions in their briefs that "almost all the jurisdictional evidence is undisputed," and that the findings of fact are not "without evidentiary support," they attack the trial court's six conclusions of law. The Conners contend the court's conclusions are erroneous because: (1) uncontroverted facts establish ContiCarriers' consent to Texas courts' jurisdiction...

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