Moncrief Oil Int'l Inc. v. Gazprom

• Decision Date: 24 November 2010
• Docket Number: No. 2–09–00336–CV.,2–09–00336–CV.
• Citation: 332 S.W.3d 1
• Court: Texas Court of Appeals
• Parties: MONCRIEF OIL INTERNATIONAL, INC., Appellant,v.OAO GAZPROM; Gazprom Export, LLC; and Gazprom Marketing & Trading, Ltd., Appellees.

332 S.W.3d 1

MONCRIEF OIL INTERNATIONAL, INC., Appellant,

v.OAO GAZPROM; Gazprom Export, LLC; and Gazprom Marketing & Trading, Ltd., Appellees.

No. 2–09–00336–CV.

Court of Appeals of Texas, Fort Worth.

Nov. 24, 2010.Rehearing Overruled Feb. 3, 2011.

Marshall M. Searcy, Jr., John H. Cayce, Jr., Michael D. Anderson, Matthew D. Stayton, Kelly Hart & Hallman LLP, Fort Worth, for Appellant.Michael S. Goldberg, Aaron M. Streett, Timothy C. Shelby, Joshua B. Nix, Lauren Tanner, Baker Botts L.L.P., Houston, Thomas R. Phillips, Baker Botts L.L.P., Austin, Neal W. Adams, Jerry D. Bullard, Adams, Lynch & Loftin P.C., Grapevine, for Appellees.Panel: GARDNER and WALKER, JJ.; and WILLIAM BRIGHAM (Senior Justice, Retired, Sitting by Assignment).

OPINION

SUE WALKER, Justice.

I. Introduction

This is an interlocutory special appearance appeal. Appellant Moncrief Oil International, Inc. appeals the trial court's order granting the special appearances filed by Appellees OAO Gazprom (Gazprom); Gazprom Export, LLC; and Gazprom Marketing & Trading, Ltd.¹ In its first, second, and fourth issues, Moncrief Oil contends that these three Appellees failed to negate all bases of personal jurisdiction. In a fifth issue, Moncrief Oil argues that the trial court abused its discretion by refusing to compel the depositions of two key representatives of Appellees. For the reasons set forth below, we hold that the trial court lacks general jurisdiction over Gazprom; that Gazprom Marketing & Trading, Ltd. is not, for jurisdictional purposes, fused with GMT USA; ² and that the trial court lacks specific jurisdiction over Moncrief Oil's tortious interference with a business relationship claims and Moncrief Oil's misappropriation of trade secrets claims, both asserted against Gazprom and Gazprom Export. Consequently, we will affirm the trial court's order granting Appellees' special appearances.

II. Factual Background Overview

The jurisdictional facts presented to the trial court were disputed. Essentially, Moncrief Oil, a Fort Worth, Texas-based independent oil and gas company, asserts that it reached an agreement in 2004 with Occidental Petroleum Corporation for a Texas-based joint venture to focus on the importation of liquefied natural gas (LNG) and the development of a regasification facility in Ingleside, Texas. Moncrief Oil alleges that in the course of its business, it developed confidential trade secret information relating to the marketing of Russian natural gas and LNG in the United States.³ Moncrief Oil alleges that it offered Gazprom the opportunity to participate in the joint venture with Occidental and that, during negotiations concerning the joint venture, Gazprom and Gazprom Export learned trade secrets belonging to Moncrief Oil concerning the marketing, sales, and distribution in the United States of LNG. Moncrief Oil alleges that Gazprom and Gazprom Export misappropriated these trade secrets and used them for themselves—in fact setting up for themselves in Houston, Texas, the type of LNG regasification facility proposed by Moncrief Oil to be utilized in the joint venture—and that Gazprom and Gazprom Export tortiously interfered with the Occidental joint venture. Moncrief Oil filed suit against Appellees asserting these causes of action, as well as causes of action for conspiracy to tortiously interfere with the Occidental joint venture and for conspiracy to misappropriate trade secrets.

Appellees point out that Moncrief Oil had previously filed a lawsuit against them in federal court for breach of contract and negligent misrepresentation relating to Moncrief Oil's claimed interest in the Yuzhno–Russkoye Field, an oil field located in Russia. Judge Terry Means dismissed that lawsuit, concluding that “personal jurisdiction cannot constitutionally be exercised over the Gazprom Defendants.” ⁴ Appellees claim that the present litigation is simply a second attempt by Moncrief Oil to pursue the same litigation that was dismissed by Judge Means. Moncrief Oil, however, points out that a Moncrief Oil affiliate is pursuing the Yuzhno–Russkoye Field related litigation in a German court and argues that the present litigation is separate from its prior suit.

Appellees filed special appearances, and the trial court granted them. Moncrief Oil perfected this interlocutory appeal.

III. Standard of Review and Burdens of Proof

The standard of review and the burdens of proof that we apply in reviewing a trial court's ruling on a special appearance are recited extensively in the case law. Under the Texas long-arm statute, the plaintiff has the initial burden to plead sufficient allegations to confer jurisdiction. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009). This minimal pleading requirement is satisfied by an allegation that the nonresident defendant is doing business in Texas. See Assurances Generales Banque Nationale v. Dhalla, 282 S.W.3d 688, 695 (Tex.App.-Dallas 2009, no pet.). The nonresident defendant has the burden of negating all bases of jurisdiction alleged in the plaintiff's petition. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007); Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003).

In determining whether or not a defendant has negated all potential bases for jurisdiction, the trial court frequently must resolve questions of fact. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). And when the trial court does not make findings of fact and conclusions of law in support of its ruling on a defendant's special appearance, all facts necessary to support the ruling that are supported by the evidence are implied. See Retamco Operating, Inc., 278 S.W.3d at 337. These implied findings are not conclusive, however, when the appellate record includes the reporter's and clerk's records; in this situation, the implied findings may be challenged for legal and factual sufficiency in the appropriate appellate court. BMC Software Belg., N.V., 83 S.W.3d at 795.

We review a trial court's conclusions of law as a legal question. Id. The conclusion that personal jurisdiction exists over a defendant is a conclusion of law that we review de novo. Retamco Operating, Inc., 278 S.W.3d at 337.

The special appearance hearing conducted by the trial court here was nonevidentiary in the sense that no witnesses testified and no evidence was introduced at the hearing; counsel made Power Point presentations to the trial court.⁵ All parties relied on affidavits, exhibits, and deposition excerpts attached to their special appearances or responses. The trial court made no findings of fact or conclusions of law. On our own motion, we requested supplemental briefing from the parties on the issue of whether the nonevidentiary nature of the special appearance hearing in the trial court altered our standard of review in any way. We questioned how we could review a trial court's implied findings of fact for legal or factual sufficiency when no evidence was offered or introduced before the trial court at the special appearance hearing and the affidavits, exhibits, and deposition excerpts filed by the parties contained factual conflicts. That is, if in order to decide the special appearances, the trial court merely reviewed affidavits, exhibits, and deposition excerpts filed with it and made no credibility determinations, then we are in the same position as the trial court and implying all facts supported by the evidence in favor of the trial court's ruling seems inappropriate. See Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 726–27 (Tex.App.-Corpus Christi 2006, pet. denied) (expressing similar concerns).

The parties filed supplemental briefs addressing our standard-of-review concerns, and based on the supplemental briefing, we conclude that although the special appearance hearing was nonevidentiary and despite our concerns, we must nonetheless defer to all implied findings of fact that support the trial court's grant of Appellees' special appearances so long as legally and factually sufficient evidence—i.e., factual statements set forth in the affidavits, exhibits, and deposition excerpts filed with the trial court—exists supporting them.⁶

IV. The Law Concerning Personal Jurisdiction

Texas courts may assert in personam 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 constitutional due-process guarantees. Moki Mac River Expeditions, 221 S.W.3d at 574.

A. Personal Jurisdiction Under the Texas Long–Arm Statute

The Texas long-arm statute sets out a nonexclusive list of activities that constitute doing business in Texas. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2008); PHC–Minden, L.P. v. Kimberly–Clark Corp., 235 S.W.3d 163, 166 (Tex.2007); Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). The broad language of section 17.042 extends Texas courts' personal jurisdiction “as far as the federal constitutional requirements of due process will permit.” PHC–Minden, L.P., 235 S.W.3d at 166; Moki Mac River Expeditions, 221 S.W.3d at 575.

B. The Limits of Personal Jurisdiction Under the Guarantees of Due Process

In addition to the long-arm statute, the exercise of in personam jurisdiction over a nonresident defendant must satisfy federal due process requirements. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); PHC–Minden L.P., 235 S.W.3d at 166; Moki Mac River Expeditions, 221 S.W.3d at 575. The exercise of personal jurisdiction over a nonresident defendant satisfies the due process requirements of the Fourteenth Amendment only when (a) the nonresident defendant has established minimum contacts with the forum state and (b) the exercise of jurisdiction...