Mi Gwang Contact Lens Co. v. Chapa

• Decision Date: 11 June 2015
• Docket Number: NUMBER 13-13-00306-CV
• Parties: MI GWANG CONTACT LENS CO., LTD. AND CLEARLAB US, INC., Appellants, v. M. TERRI CAVAZOS CHAPA, INDIVIDUALLY AND AS NEXT FRIEND AND NATURAL GUARDIAN OF VICTORIA CHAPA, A MINOR, Appellees.
• Court: Texas Court of Appeals

MI GWANG CONTACT LENS CO., LTD. ANDCLEARLAB US, INC., Appellants, v. M. TERRI CAVAZOS CHAPA, INDIVIDUALLY AND AS NEXT FRIEND AND NATURALGUARDIAN OF VICTORIA CHAPA, A MINOR, Appellees.

NUMBER 13-13-00306-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 11, 2015

On appeal from the 103rd District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Perkes and Longoria

Memorandum Opinion by Chief Justice Valdez

Appellants, Mi Gwang Contract Lens Co., LTD. ("Mi Gwang") and Clearlab US, Inc. ("Clearlab"), challenge the trial court's order denying their special appearances. SeeTEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West, Westlaw through 2013 3d C.S.). We affirm.

I. BACKGROUND

In July 2010, Victoria Chapa, who was then fourteen years old, purchased a pair of cosmetic contact lenses from a kiosk in the Brownsville Sunrise Mall in Brownsville, Texas. Soon thereafter, she experienced a corneal ulcer and infection in her left eye as a result of using the contact lenses. Victoria subsequently lost significant vision in her left eye. As a result, Victoria's mother, M. Terri Cavazos Chapa, brought suit, individually and on behalf of Victoria, in the 103rd District Court of Cameron County, Texas against multiple defendants,¹ including Mi Gwang and Clearlab, for, inter alia, negligence and negligence per se regarding their sale and distribution of cosmetic contact lenses.

Mi Gwang and Clearlab filed special appearances contesting both general and specific jurisdiction. The Chapas filed a combined response to these special appearances. Mi Gwang and Clearlab filed a combined reply and brief in support of their special appearances. The Chapas filed a supplemental brief in support of their combined response and further filed a response to Mi Gwang and Clearlab's combined reply and brief. Following a non-evidentiary hearing, the trial court denied the special appearances. This appeal ensued. By three identical issues raised in separate briefs, Mi Gwang and Clearlab each contend: (1) the trial court erroneously denied the special appearances because the Chapa's pleadings failed to support their assertion of personal jurisdiction;(2) the trial court erroneously denied the special appearances because Mi Gwang and Clearlab did not have the requisite minimum contacts with Texas for the trial court to exert personal jurisdiction over them; and (3) the exercise of jurisdiction over Mi Gwang and Clearlab offends traditional notions of fair play and substantial justice.

II. STANDARD OF REVIEW

Whether a trial court has personal jurisdiction over a nonresident defendant is a question of law. Moncrief Oil Int'l Inc. v. OAO Gazprom Exp., LLC, 414 S.W.3d 142, 150 (Tex. 2013); Michiana Easy Livin' Country, Inc. v. Holten, 168 SW.3d 777, 790-91 (Tex. 2005); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Because the trial court's exercise of personal jurisdiction over a nonresident defendant is one of law, an appellate court reviews the trial court's determination of a special appearance de novo. Moncrief, 414 S.W.3d at 150; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software, 83 SW.3d at 794. However, the trial court must frequently resolve questions of fact before deciding the jurisdictional question. BMC Software, 83 SW.3d at 794; Capital Tech. Info. Servs., Inc. v. Arias & Arias, Consultores, 270 SW.3d 741, 748 (Tex. App.—Dallas 2008, pet. denied) (en banc). When a trial court does not issue findings of fact or conclusions of law, as in this case, "all facts necessary to support the judgment and supported by the evidence are implied." BMC Software, 83 S.W.3d at 795; see Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). Because the appellate record includes the reporter's and clerk's records, the trial court's implied findings are not conclusive and may be challenged for legal and factual sufficiency. BMC Software, 83 S.W.3d at 795. We willaffirm the trial court's ruling on any legal theory that finds support in the record. Dukatt v. Dukatt, 355 S.W.3d 231, 237 (Tex. App.—Dallas 2011, pet. denied).

We analyze the propriety of a special appearance on the basis of "the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony." TEX. R. CIV. P. 120a(3); see Camac v. Dontos, 390 S.W.3d 398, 405 (Tex. App.—Dallas 2012, no pet.). On appeal, the scope of review in a special appearance case includes all evidence in the record. Dodd v. Savino, 426 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Horowitz v. Berger, 377 S.W.3d 115, 122 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We do not resolve merits-based questions on appeal regarding a special appearance. See Michiana, 168 S.W.3d at 791-92 (stating special appearance involves consideration of only jurisdiction, not merits or liability); Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (same); Petrie v. Widby, 194 S.W.3d 168, 175 n. 2 (Tex. App.—Dallas 2006, no pet.) ("[I]n reviewing an order denying a special appearance, we do not concern ourselves with the merits of the plaintiffs' claims.").

III. PLEADINGS

In their first issues, Mi Gwang and Clearlab contend that the Chapas' pleadings failed to support their assertion of personal jurisdiction. They contend that the Chapas "failed to plead jurisdictional allegations that [they] committed any actionable conduct in Texas," that Mi Gwang and Clearlab filed affidavits establishing that they were non-residents of Texas, and that this was the only step that they needed to take to defeat all bases of personal jurisdiction.

By their third amended original petition, the Chapas alleged, in relevant part:

Defendant Ml GWANG CONTACT LENS CO LTD, is a foreign limited liability company organized under the laws of South Korea, whose home office address is 116-2 Hyeopseok-Ri, Namcheon-Myeon, Gyeongsan-Si, KR-47, Republic of Korea, and whose designated United States agent for service of process is Sung June Park at Clearlab US, Inc., 4200 Jenkins Ct., Suwanee, GA 30024. At all times relevant to suit, this Defendant had continuous, systematic, and sufficient minimum contacts with Texas, its actions were directed to be committed in the State of Texas and/or had reasonably foreseeable consequences in Texas, this Defendant conspired or purposefully availed itself of the benefit, advantage, and profit of availing itself of this jurisdiction, advertised, established channels of regular communications, routine sales, contractual relationships, settlements and legal resolutions to disputes under Texas law, and the contacts of its agents, apparent agents, partners, alter egos, joint venturers, downstream distributors, or representatives should be attributed or fused to prevent injustice, fraud, or a sham. Although this Defendant engages in business in Texas and throughout the United States, and this suit arises from defendant's business in Texas, Defendant has not designated or maintained an agent for service of process as required by law. Defendant MI GWANG CONTACT LENS CO. LTD, was thus served in accordance with the Texas rules of procedure, by service of process and a copy of this pleading by certified mail, return receipt requested, upon Sung June Park at 4200 Jenkins Ct., Suwanee, GA 30024. Service was by private process server upon Sung June Park, or other manager of the company. This Defendant has appeared and answered herein, thus no additional service is necessary at this time.

. . . .

Defendant CLEARLAB US, INC., is a foreign limited liability company organized under the laws of the State of Georgia, whose home office address is 4200 Jenkins Ct, Suwanee, GA 30024. At all times relevant to suit, this Defendant had continuous, systematic, and sufficient minimum contacts with Texas, its actions were directed to be committed in the State of Texas and/or had reasonably foreseeable consequences in Texas, this Defendant conspired or purposefully availed itself of the benefit, advantage, and profit of availing itself of this jurisdiction, advertised, established channels of regular communications, routine sales, contractual relationships, settlements, and legal resolutions to disputes under Texas law, and the contacts of its agents, apparent agents, partners, alter egos, joint venturers, downstream distributors, or representatives should be attributed or fused to prevent injustice, fraud, or a sham. Although this Defendant does business in Texas, it does not maintain a regular place of business in Texas or a designated agent for service of process. Therefore,

Defendant CLEARLAB US, INC. was served in accordance with the Texas rules of procedure, by service of process and a copy of this pleading by certified mail, return receipt requested, to Sung June Park at 4200 Jenkins Ct., Suwanee, GA 30024. Service was by private process server upon Sung June Park, or other manager of the company. This Defendant has appeared and answered herein, thus no additional service is necessary at this time.

. . . .

Defendants Mi Gwang and ClearLab are in reality and legally the same entity and must be treated as such to prevent fraud and injustice. They are not operated as separate businesses, but are a single business enterprise, a sham, alter egos, joint venturers, agents and/or apparent agents of the other, and their identities are properly fused in fairness for all legal and jurisdictional purposes. Defendants Mi Gwang/ClearLab purposefully availed itself of the Texas forum at all times relevant to suit, and its contacts with the State of Texas are continuous and systematic. Defendants Mi Gwang/ClearLab are subject to the specific jurisdiction of this court, and their contact with this State are also sufficient to support

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