Helicopteros Nacionales De Colombia, S.A. ('Helicol') v. Hall, 17882

Decision Date22 January 1981
Docket NumberNo. 17882,17882
Citation616 S.W.2d 247
PartiesHELICOPTEROS NACIONALES DE COLOMBIA, S.A. ("HELICOL"), Appellant, v. Elizabeth HALL et al., Appellees. (1st Dist.)
CourtTexas Court of Appeals

Soules, McCamish, Ingram, Martin & Brown, James E. Ingram, San Antonio, for appellant.

Helm, Pletcher & Hogan, George E. Pletcher, Houston, for appellees.

DOYLE, Justice.

This is an appeal from a money judgment awarded to appellees in a wrongful death action arising out of a helicopter crash in Peru, South America. Specifically, Helicopteros Nacionales De Colombia, S.A. (Helicol) is appealing from an order overruling its special appearance pursuant to Rule 120a, T.R.C.P.

We reverse and order the case dismissed.

Helicol, South American, corporation with its residence in Colombia, was sued by the appellees, survivors of four men killed in a helicopter accident which occurred in the jungles of Peru in January, 1976. Service was had upon Helicol under the "long-arm" statute, Tex.Rev.Civ.Stat.Ann., art. 2031b.

Although the actions by the survivors of the four men were filed separately, the four cases ultimately were consolidated for all purposes. Prior to consolidation, however, the special appearance pursuant to Rule 120a was timely filed in each of the causes. Pursuant to an agreement between counsel for Helicol and counsel for appellees, a special appearance hearing was conducted with testimony presented and evidence admitted in only one of the cases. It was agreed by the attorneys for all the parties that the testimony and evidence presented during that special appearance hearing would be filed and used as the testimony and the evidence presented by the parties in each of those cases. The courts in all four cases honored those agreements and after considering the testimony and the evidence, overruled the special appearances filed by Helicol. The transcribed testimony and attached exhibits which have been filed with this court on appeal are the same transcribed testimony and exhibits considered by the trial court in all four cases. A motion for reconsideration of the overruling of Helicol's special appearance was filed and also overruled. The case proceeded to a jury trial on the merits. A verdict was returned against Helicol and appellees were jointly awarded $1,141,200, together with post-judgment interest.

We are not here concerned with the record in this case as it relates to the verdict and judgment. Our sole concern is whether or not the evidence adduced at the special appearance hearing supports the overruling of Helicol's special appearance.

The appellant asserts two points of error, the first of which avers that the court erred in overruling the special appearance of Helicol because Helicol, a South American corporation, was not doing business in Texas and did not otherwise engage in acts which come within the purview of art. 2031b. By point of error two, Helicol complains that the trial court erred in overruling the Rule 120a special appearance of Helicol because Helicol, a foreign corporation, did not have sufficient contacts with Texas to meet the requirements of the constitutional minimum contacts test so that the exercise of in personam jurisdiction over Helicol offended the traditional notions of fair play and substantial justice as set out by the Fourteenth Amendment of the U.S. Constitution.

Pursuant to Rule 120a, a defendant may file a special appearance and if such appearance is overruled, the defendant may then enter a general appearance. By entering the general appearance, the defendant does not waive the right to appeal the denial of its special appearance. Rule 120a, T.R.C.P.

Originally, appellees attempted to serve Helicol by serving a sister subsidiary of Helicol, Avianca, Inc., a New York corporation authorized to do business in Texas. It was undisputed that while both subsidiaries are owned by Aerovais Nacionales De Colombia, S.A., that they have no mutual business connections. In Gentry v. Credit Plan Corporation of Houston, 528 S.W.2d 571 (Tex.1975), the court held that a subsidiary will not be responsible for the acts of a parent except "where the management and operations are assimilated to the extent that the subsidiary is simply a name or conduit through which the parent conducts its business." The evidence in the case shows Helicol is not a part of Avianca, Inc. and therefore jurisdiction cannot be maintained over Helicol by serving Avianca, Inc.

Appellees next sought to maintain jurisdiction over Helicol pursuant to art. 2031b. Article 2031b provides in pertinent part:

Sec. 3. Any foreign corporation ... that engages in business in this State ... and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to appointment by such foreign corporations ... of the Secretary of State of Texas as an agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation ... is a party or is to be made a party.

Sec. 4. For the purposes of this Act, and without including other acts that may constitute doing business, any foreign corporation, ... shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State. The act of recruiting Texas residents, directly or through an intermediary located in Texas, for employment inside or outside Texas shall be deemed doing business in this State.

In order to maintain jurisdiction over Helicol, it must be shown that it either committed a tort in Texas or entered into a contract to be performed in whole or in part in Texas. The undisputed evidence shows that the Helicopter crash occurred in the jungles of Peru. Clearly, Helicol did not commit a tort in whole or in part in Texas, and thus the tort requirements of art. 2031b are not met. The record is in dispute as to whether Helicol entered into a contract to be performed in whole or in part by either party in Texas.

The facts in this case show that a joint venture known as Williams-Sedco-Horn (WSH) contracted with Helicol to furnish helicopter transportation service in connection with the construction of a pipeline in Peru. WSH employed the four men who died in the helicopter crash. There was never a contract between Helicol and appellees and Helicol's services were to be provided only in Peru.

A dispute arises in the evidence as to whether the contract between WSH and appellants was negotiated in Texas, Oklahoma or Peru. Helicol introduced testimony to show the contract was negotiated in Oklahoma; the parties discussed the amount and size of equipment in Houston, Texas, and that it was finalized, written and executed in Spanish in Peru. Helicol also showed that the contract required final approval from the Peruvian government. Payment for Helicol's services was invoiced in Peru and then American dollars were to be deposited in bank accounts in Panama and New York City. It is undisputed that the money came from a Texas bank where WSH had an account. Helicol did not have any bank accounts in Texas. The following testimony was offered by Mr. Restrepo, called by Helicol:

A: The contract that was entered into by Helicol with Williams-Sedco-Horn for the transportation that was involved in this accident, was that contract negotiated or signed in the United States?

A: No, sir.

Q: Where was it signed, sir?

A: Lima.

Q: That's Lima, Peru?

A: Yes.

Q: Where was this signed and executed?

A: In Lima, Peru.

Q: This contract, Mr. Restrepo, why was it executed for Helicol by a lawyer in Peru, can you tell the Court that?

A: Because it has to be done according to the Peruvian laws.

Q: The contract had to be executed in accordance with Peruvian laws, is that what you said?

A: Yes.

Q: Which Peruvian governmental agency handled the contractual negotiations?

A: The Peruvian Air Force.

Q: Did they participate in the writing...

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7 cases
  • Hall v. Helicopteros Nacionales De Colombia, S.A. (Helicol)
    • United States
    • Texas Supreme Court
    • July 21, 1982
    ...for Hall. The court of civil appeals reversed the judgment of the trial court and ordered the case dismissed for lack of jurisdiction. 616 S.W.2d 247. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial The only issue before us is whether under the fac......
  • Helicopteros Nacionales De Colombia v. Hall
    • United States
    • U.S. Supreme Court
    • April 24, 1984
    ...First District, reversed the judgment of the District Court, holding that in personam jurisdiction over Helicol was lacking. 616 S.W.2d 247 (Tex.1981). The Supreme Court of Texas, with three justices dissenting, initially affirmed the judgment of the Court of Civil Appeals. App. to Pet. for......
  • Phc-Minden, L.P. v. Kimberly-Clark Corp.
    • United States
    • Texas Supreme Court
    • August 31, 2007
    ...of appeals, however, agreed with Helicol that in personam jurisdiction over Helicol was lacking. Helicopteros Nacionales De Colombia, S.A. v. Hall, 616 S.W.2d 247 (Tex.App.-Houston 1981). Our Court reversed. Hall v. Helicopteros Nacionales De Colombia, S.A., 638 S.W.2d 870 The Supreme Court......
  • Nowsco Services Div. of Big Three Industries, Inc. v. Lassman
    • United States
    • Texas Court of Appeals
    • July 12, 1984
    ...when the cross-claimant has been made a party to the suit by the plaintiff. See Helicoptoros Nacionales de Colombia, S.A. v. Hall, 616 S.W.2d 247, 252 (Tex.Civ.App.--Houston [1st Dist.] 1981), rev'd on other grounds, 638 S.W.2d 870 (Tex.1982), rev'd, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d......
  • Request a trial to view additional results

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