Valsangiacomo v. Americana Juice Import Inc.

• Decision Date: 14 December 2000
• Docket Number: No. 13-99-587-CV,13-99-587-CV
• Parties: (Tex.App.-Corpus Christi 2000) CHERUBINO VALSANGIACOMO, Appellant, v. AMERICANA JUICE IMPORT, INC., Appellee
• Court: Texas Court of Appeals

Page 201

35 S.W.3d 201 (Tex.App.-Corpus Christi 2000)

CHERUBINO VALSANGIACOMO, Appellant, v. AMERICANA JUICE IMPORT, INC., Appellee.

No. 13-99-587-CV

Court of Appeals Thirteenth District of Texas Corpus Christi

December 14, 2000

On appeal from the 275th District Court of Hidalgo County, Texas. [Copyrighted Material Omitted] Before Chief Justice Seerden and Justices Dorsey and Rodriguez

OPINION

Rodriguez, Justice

This is an appeal from the denial of a special appearance. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 2000). We reverse and dismiss the cause for lack of personal jurisdiction.

Americana Juice Import (Americana) sued Cherubino Valsangiacomo, C.V (Cherubino) and Texas State Bank¹ in a Texas district court, seeking damages for breach of contract and fraud. Americana also sought injunctive relief against Texas State Bank to prevent it from paying on a letter of credit. On the same day the trial court held a hearing² on the temporary injunction,³ Cherubino filed a special appearance. The trial court granted the injunction and subsequently denied the special appearance. By two issues, Cherubino challenges the trial court's denial of the special appearance and its failure to file findings of fact and conclusions of law.

Americana is a Texas corporation which imports juice, with its principal place of business in Pharr, Texas. Cherubino is a business located in Spain which produces, among other things, grape juice concentrate. The underlying dispute involves an agreement between Cherubino and Americana, in which Americana was to purchase a large quantity of grape juice concentrate from Cherubino. In order to purchase the juice, Americana obtained a letter of credit from Texas State Bank with Cherubino named as the beneficiary. Cherubino was to receive payment under this letter upon presentment of various documents. The grape juice concentrate was shipped, and Americana received the juice, but did not find the juice acceptable and rejected the shipment. Cherubino presented the necessary documents to Texas State Bank, which in turn, paid Cherubino thirty percent of the value of the letter of credit as provided in the letter.

In its first issue, Cherubino contends the trial court erred in failing to file findings of fact and conclusions of law. Rule 297 of the Texas Rules of Civil Procedure requires a trial court to file findings of fact and conclusions of law within twenty days of a timely request. Tex. R. Civ. P. 297. The rule also requires the requesting party to file a "Notice of Past Due Findings of Fact and Conclusions of Law" within thirty days after filing the original request if the trial court does not timely make findings and conclusions. Id. An appellant's failure to file this reminder waives "the right to complain on appeal of any error related to the trial court's failure to make a finding or conclusion." Salinas v. Beaudrie, 960 S.W.2d 314, 317 (Tex. App.-Corpus Christi 1997, no pet.); Pierson v. GFH Financial Services Corp., 829 S.W.2d 311, 314 (Tex. App.-Austin 1992, no writ).

Here, the record shows the trial court failed to submit findings and conclusions after Cherubino requested them. However, the record does not indicate Cherubino filed a "Notice of Past Due Findings of Fact and Conclusions of Law." Thus, it has waived any complaint regarding the trial court's failure to file findings of fact and conclusions of law. Cherubino's first issue is overruled.

By its second issue, Cherubino asserts the trial court erred in denying its special appearance because the evidence conclusively establishes it was not subject to personal jurisdiction in Texas.

In Texas, a party may contest personal jurisdiction by filing a special appearance. Tex. R. Civ. P. 120a(1). In Happy Indus. v. American Specialties, 983 S.W.2d 844, 847 (Tex. App.-Corpus Christi 1998, pet. dism'd w.o.j.), this Court articulated the standard for reviewing a trial court's denial of a special appearance:

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. . . . The scope of that review includes all evidence in the record. . . . 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. [However,] in applying the jurisdictional formula to a particular case, the facts must be carefully weighed and mechanical application of any test . . . must be avoided.

Happy, 983 S.W.2d at 847 (citations and quotations omitted).

In a case where the court has not filed findings or conclusions, all questions of fact will be presumed and found in support of the judgment. Magnolia Gas Co. & MKP v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 690 (Tex. App.-San Antonio 1998, no pet.); Pierson, 829 S.W.2d at 314. Because the appellate record includes a reporter's record, however, these findings are not conclusive on appeal. Magnolia Gas Co., 994 S.W.2d at 690 (citing Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987)).

On appeal from a special appearance, we review all evidence in the record to determine if the nonresident defendant negated all possible grounds for personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex. App.-Houston [1st. Dist.] 2000, no pet.). 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); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n.2 (Tex. App.-Corpus Christi 1999, no pet.). Where the plaintiff fails to make such jurisdictional allegations, the defendant can carry its burden to defeat all bases of personal jurisdiction simply by presenting evidence that it is a nonresident. M.G.M. Grand, 8 S.W.3d at 408 n.2. Once the defendant has produced credible evidence negating all bases of jurisdiction, the plaintiff bears the ultimate burden to establish that the Texas court has personal jurisdiction over the defendant as a matter of law. Id.

The test for whether a Texas court may exercise personal jurisdiction over a nonresident defendant is whether the defendant has some minimum, purposeful contacts with the state, and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998); CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996); see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997). We focus on the defendant's activities and expectations in the forum state. Magnolia Gas Co., 994 S.W.2d at 690.

A nonresident's contacts with a state can give rise to either general or specific jurisdiction. J & J Marine, Inc. v. LE, 982 S.W.2d 918, 923 (Tex. App.-Corpus Christi 1998, no pet.). Americana argues Cherubino's contacts with Texas were sufficient to establish both.

General jurisdiction is present when a defendant's contacts in the state are so continuous and systematic that the state may 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. CSR, 925 S.W.2d at 595; Happy, 983 S.W.2d at 847. General jurisdiction requires a showing the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. CSR, 925 S.W.2d at 595; Happy, 983 S.W.2d at 847.

In support of its position that Cherubino maintained ongoing, systematic contacts with Texas, Americana relies on evidence that Cherubino sells wine in the United States and that Americana was able to acquire Cherubino wine in Texas.

Sheila Jacaman of Americana, who is able to speak, read, and write in Spanish, testified as to the contents of a Spanish article about Cherubino. According to Jacaman, the article quoted Arnolodo Valsangiacomo, president of Cherubino, as stating that Cherubino sells wine to numerous countries, including the United States. Jacaman also testified that Marta Valsangiacomo, who works for Cherubino, told her Cherubino was going to put on a wine exposition at a trade show in Miami, Florida. Americana attached a document to its response to the special appearance, which indicated Americana purchased a case of Cherubino wine from a liquor store in McAllen, Texas. According to the document, the product was obtained by Glazer's, a marketer of wine and liquor, in Dallas, Texas. Following this document was a facsimilie cover sheet from Bill Rich of Glazer's to Jacaman with a note to Jacaman that the wine was obtained from AV Imports in New Jersey.

In order for a defendant to have minimum contacts with a state, it must purposefully avail itself of the privileges and benefits of conducting business in Texas. CSR, 925 S.W.2d at 594. Evidence that Cherubino sold wine into the United States does not establish purposeful availment of the Texas market; neither does Americana's obtaining Cherubino wine from a Texas liquor store, which had to order the wine from a New Jersey importer, show that Cherubino purposefully availed itself of the Texas market.

Arnoldo Valsangiacomo stated by affidavit that Cherubino is a Spanish company and has no offices in Texas. Cherubino has no employees or officers in Texas and does not advertise in Texas. We conclude Cherubino does not have systematic or continuous contacts with Texas so as to give Texas courts general jurisdiction over Cherubino.

Because we cannot sustain the trial court's ruling on the basis of general jurisdiction, we turn to specific jurisdiction. Specific jurisdiction is established if the defendant's alleged liability arises from or is related to...