El Puerto De Liverpool v. Servi Mundo Etc.

• Decision Date: 30 May 2002
• Docket Number: No. 13-01-552-CV.,13-01-552-CV.
• Citation: 82 S.W.3d 622
• Parties: EL PUERTO DE LIVERPOOL, S.A. DE C.V., Appellant, v. SERVI MUNDO LLANTERO S.A. DE C.V., Appellee.
• Court: Texas Court of Appeals

82 S.W.3d 622

EL PUERTO DE LIVERPOOL, S.A. DE C.V., Appellant, v. SERVI MUNDO LLANTERO S.A. DE C.V., Appellee.

No. 13-01-552-CV.

Court of Appeals of Texas, Corpus Christi.

May 30, 2002.

Opinion Denied Rehearing August 1, 2002.

Concurring Opinion on Denial of Rehearing En Banc August 23, 2002.

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David Lopez, Ricardo G. Cedillo, Steve A. Chiscano, Davis, Cedillo & Mendoza, San Antonio, for appellant.

David H. Hockema, Hockema, Tippit & Escobedo, McAllen, J. Brett Busby, Kevin Dubose, Hogan, Dubose & Townsend, John M. O'Quinn, O'Quinn & Laminack, Houston, Michael J. Garza, McAllen, for appellee.

Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.

OPINION

Opinion by Chief Justice VALDEZ.

El Puerto De Liverpool, S.A. de C.V. ("El Puerto") brings this accelerated, interlocutory appeal of an order denying its special appearance. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(7) (Vernon Supp.2002); TEX.R.App. P. 28.1.

Appellant El Puerto raises four issues on appeal. Specifically, El Puerto complains that the trial court's denial of its special appearance (1) is not supported by the pleadings, (2) violates the fourteenth amendment because El Puerto contends its only contact with Texas is a "pass-through" bank account, (3) cannot be based on an alter ego relationship between El Puerto and its subsidiary corporations, and (4) fails to comport with fair play and substantial justice.

We affirm the trial court's ruling denying El Puerto's special appearance.

Background

El Puerto is a holding company engaged in the merchandising business in Mexico. Through its subsidiaries, it operates department and retail stores, purchases and imports goods for resale in Mexico, and owns retail-related real estate investments. El Puerto entered into a joint venture with Kmart Corporation to own and operate retail Kmart super centers throughout Mexico. Servi Mundo Llantero, S.A. de C.V. acquired the exclusive right to construct, operate, and manage the retail automotive centers of those Kmart super centers; however, the joint venture terminated after four stores were opened.

Consequently, Servi Mundo Llantero, S.A. de C.V., Servi Mundo Llantero U.S.A., Inc., and Enrique Kanarak, one of the principals of Servi Mundo Llantero, S.A. de C.V., brought suit against Kmart Corporation, VTA, Inc., El Puerto, and Jorge Ortega. These plaintiffs (referred to collectively as "Servi Mundo") alleged wrongful conduct in the formation and termination of their agreement regarding the retail automotive centers. Specifically, Servi Mundo pleaded causes of action for fraudulent inducement, negligent misrepresentation, negligence, gross negligence, civil conspiracy, common law fraud, constructive fraud, promissory estoppel, and tortious interference. El Puerto filed a special appearance on grounds that it is a foreign corporation that is not subject to general or specific jurisdiction in Texas. After the hearing on El Puerto's special appearance, the trial court concluded that El Puerto was subject to jurisdiction in Texas and denied the special appearance based on El Puerto's possession and use of a Texas bank account and based on El Puerto's relationship with subsidiary corporations who are undisputedly subject to jurisdiction in Texas. This appeal ensued.

General Jurisdiction

A defendant's contacts with a forum can give rise to either general or specific jurisdiction. General jurisdiction is present when a defendant's contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. See CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). General jurisdiction requires a showing that the defendant conducts substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. Id. In contrast, specific jurisdiction is established if the defendant's alleged liability arises from or is related to an activity conducted within the forum. Id. The issue in this case is whether El Puerto is subject to general jurisdiction in Texas.

Standard of Review

We begin with the presumption that the court has jurisdiction over the parties. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985); Angelou v. African Overseas Union, 33 S.W.3d 269, 277 (Tex.App.-Houston [14th Dist.] 2000, no pet.). A nonresident defendant bears the burden of negating all bases of personal jurisdiction to prevail in a special appearance. CSR Ltd., 925 S.W.2d at 596; Kawasaki Steel Corp., 699 S.W.2d at 203; Fish v. Tandy Corp., 948 S.W.2d 886, 891 (Tex.App.-Fort Worth 1997, writ denied).

In considering an order granting or denying a special appearance, we review the trial court's resolution of disputed factual issues under a factual sufficiency of the evidence standard, and review the trial court's conclusions of law de novo. LeBlanc v. Kyle, 28 S.W.3d 99, 102 (Tex. App.-Texarkana 2000, pet. denied) (citations omitted); see Ahadi v. Ahadi, 61 S.W.3d 714, 718 (Tex.App.-Corpus Christi 2001, no pet. h.) (existence of personal jurisdiction is a question of law); BHP de Venezuela, C.A. v. Casteig, 994 S.W.2d 321, 326 (Tex.App.-Corpus Christi 1999, pet. denied) (op. on re'hg) (same); Valsangiacomo v. Am. Juice Import, Inc., 35 S.W.3d 201, 205 (Tex.App.-Corpus Christi 2000, no pet.) (applying factual sufficiency standard of review to trial court's resolution of factual disputes); De Prins v. Van Damme, 953 S.W.2d 7, 13 (Tex.App.-Tyler 1997, writ denied) (same).¹ However, if a special appearance is based on undisputed or established facts, an appellate court instead conducts a de novo review of the trial court's order granting a special appearance as a question of law. Goodenbour v. Goodenbour, 64 S.W.3d 69, 75 (Tex.App.-Austin 2001, pet. denied); Ahadi, 61 S.W.3d at 718. In any event, in conducting its review, the appellate court considers all of the evidence in the record. BHP de Venezuela, C.A., 994 S.W.2d at 326; Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 99 (Tex.App.-Houston [14th Dist.] 1995, writ denied).

If the trial court makes findings of fact, they are binding on the appellate court unless challenged on appeal. Royal Mortgage Corp. v. Montague, 41 S.W.3d 721, 730 (Tex.App.-Fort Worth 2001, no pet.); Silva v. Ysleta Del Sur Pueblo, 28 S.W.3d 122, 124 (Tex.App.-El Paso 2000, pet. denied); Linton v. Airbus Industrie, 934 S.W.2d 754, 757 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). An appellate court may not disregard findings of fact unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. See Angelou, 33 S.W.3d at 277; BHP de Venezuela, C.A., 994 S.W.2d at 327; Hotel Partners, 847 S.W.2d at 632. As the trier of fact, the trial judge may draw reasonable inferences from the evidence. Gen. Refractories Co. v. Martin, 8 S.W.3d 818, 820 (Tex.App.-Beaumont 2000, pet. denied); Hotel Partners, 847 S.W.2d at 632.

We will affirm the trial court's ruling if we can uphold it on any legal theory supported by the evidence. LeBlanc v. Kyle, 28 S.W.3d 99, 101-02 (Tex.App.-Texarkana 2000, pet. denied); Fish, 948 S.W.2d at 892; see Guardian Royal Exch. Assurance Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

Pleading Jurisdictional Grounds

In its first issue, El Puerto argues that it is entitled to dismissal because the plaintiffs below failed to plead that El Puerto is subject to the general jurisdiction of Texas courts. The plaintiff has the initial burden to plead "sufficient" allegations to show jurisdiction in Texas. McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965); Frank A. Smith Sales, Inc. v. Atl. Aero, Inc., 31 S.W.3d 742, 746 (Tex. App.-Corpus Christi 2000, no pet.). Here, appellee pleaded that El Puerto is "doing business in the State of Texas." See TEX. CIV. PRAC. & REM.CODE ANN. § 17.042 (Vernon 1997) (long arm statute regarding "doing business"). Appellee further pleaded that El Puerto committed torts in Texas. Appellee's pleadings were sufficiently clear regarding its jurisdictional allegations. See id.

Moreover, even if appellee's pleadings were not sufficient to show jurisdiction in Texas, we would conclude that appellant waived this complaint because it did not raise this issue in a motion to quash. Defective jurisdictional allegations in a petition must be challenged by a motion to quash, not by special appearance. Kawasaki Steel Corp., 699 S.W.2d at 203; Haught v. Agric. Prod. Credit Ass., 39 S.W.3d 252, 257 (Tex.App.-Tyler 2000, no pet.). El Puerto's first issue is overruled.

Due Process Clause

In its second issue, El Puerto argues that it violates the due process clause of the fourteenth amendment for a Texas court to assert general jurisdiction over a foreign defendant when the defendant's "only" contact with Texas is a single pass-through bank account "that is not directed toward Texas." As discussed below, however, we cannot accept El Puerto's characterization of its business contacts with Texas.

Under the due process clause of the fourteenth amendment, a defendant must have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. CSR, Ltd., 925 S.W.2d at 594. A nonresident defendant that has purposefully availed itself of the privileges and benefits of conducting business in the foreign jurisdiction has sufficient contacts with the forum to confer personal jurisdiction. Id. A defendant should not be subjected to the jurisdiction of a foreign court based on random, fortuitous, or attenuated contacts. Id. at 595. Minimum contacts are particularly important when the defendant is from a different country...