Waterman S.S. Corp. v. Ruiz

• Decision Date: 25 August 2011
• Docket Number: No. 01–10–00516–CV.,01–10–00516–CV.
• Citation: 355 S.W.3d 387
• Parties: WATERMAN STEAMSHIP CORPORATION and Maersk Line, Limited, Appellants, v. Miguel RUIZ, John Cronan, and Richard E. Hicks, Appellees.
• Court: Texas Court of Appeals

355 S.W.3d 387

WATERMAN STEAMSHIP CORPORATION and Maersk Line, Limited, Appellants,

v.Miguel RUIZ, John Cronan, and Richard E. Hicks, Appellees.

No. 01–10–00516–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 25, 2011.

James E. Wright, III, (Pro Hac Vice), William C. Baldwin, (Pro Hac Vice), New Orleans, LA, Robert Taylor Lemon II, Rebecca L. Clausen, Houston, for Appellants.

Brian A. Beckcom, Terry Bryant, Daryl L. Moore, Dennis M. McElwee, Houston, for Appellees.

Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION ON REHEARING

EVELYN V. KEYES, Justice.

Appellee John Cronan filed a motion for rehearing of our April 14, 2011 opinion. We grant rehearing, withdraw our April 14, 2011 opinion and judgment and issue this opinion and judgment in their place. The disposition of the case remains unchanged.

In this interlocutory appeal, appellants, Waterman Steamship Corporation (“Waterman”) and Maersk Line, Limited (“Maersk”), appeal the trial court's order denying their special appearances. Appellees, Miguel Ruiz, John Cronan, and Richard Hicks, sued Waterman and Maersk for negligence under the Jones Act and general maritime law for injuries allegedly suffered during the hijacking of the M/V MAERSK ALABAMA by pirates off the coast of Somalia. In four issues on appeal, Waterman and Maersk contend that the trial court erred in denying the special appearances because: (1) appellants did not waive their special appearances in this case by their actions in Hicks's earlier suit; (2) appellants lack sufficient minimum contacts with Texas to support the exercise of general jurisdiction; (3) exercising personal jurisdiction under these circumstances does not comport with traditional notions of fair play and substantial justice; and (4) the trial court erred in failing to file findings of fact and conclusions of law. Waterman additionally contends that its officer, Peter Johnston, had personal knowledge of the facts contained in his affidavit supporting its special appearance.

We affirm in part and reverse and render judgment in part.

Background

On April 8, 2009, while the M/V MAERSK ALABAMA was en route from Djibouti to Kenya to deliver food aid cargo, pirates hijacked the vessel in the Gulf of Aden off the coast of Somalia. During the ensuing struggle, pirates took appellees, who were crewmembers on board the ALABAMA, hostage and held them in the steering room of the vessel. Appellees allegedly suffered severe injuries when they were “thrown about” by the pirates.

Richard Hicks, a Florida resident, first sued Waterman and Maersk on April 27, 2009, in Harris County, Texas (“the Hicks case”). The case was assigned to the 270th District Court of Harris County. Hicks sued appellants under the Jones Act and general maritime and common law, alleging that appellants' negligence and the vessel's unseaworthiness proximately caused his injuries. Hicks alleged that appellants “knowingly sent their employees ... into pirate-infested waters rather than take safer routes.” Hicks contended that appellants knowingly exposed their employees to “grave and imminent danger” and did not take “adequate steps to provide appropriate levels of security and safety for [their] employees.” Hicks sought recovery for past and future medical expenses, past and future pain and suffering and mental anguish damages, and past and future “maintenance and cure.” In paragraph two of his original petition, Hicks alleged that both Waterman and Maersk were “foreign corporation[s] engaged in business in the State of Texas.” He did not plead any other facts supporting personal jurisdiction over Waterman and Maersk.

Waterman is an Alabama corporation, with its principal place of business in Alabama. Maersk is a Delaware corporation, with its principal place of business in Virginia. Before filing a special appearance or answering in state court, appellants removed the Hicks case to federal court. In their federal answer, appellants contended that venue was improper in the Southern District of Texas because Hicks resides in Florida and neither appellant has a place of business in Harris County or in Texas. Appellants also asserted that the Southern District was an inconvenient forum because no witnesses for the case reside in Texas. Appellants set out their venue objection in a separate defense. Appellants then answered each of the numbered allegations from Hicks's petition. Regarding Hicks's paragraph two, appellants admitted that Hicks is a resident of Florida and that Waterman and Maersk are both foreign corporations. Appellants then denied the “remaining allegations contained in Paragraph II in the Original Petition,” which included Hicks's allegation that Waterman and Maersk were “engaged in business in the State of Texas.” Appellants did not move for dismissal based on lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). See Fed.R.Civ.P. 12(b)(2).

While the Hicks case was pending in federal court, appellants propounded discovery requests. On September 16, 2009, the Southern District of Texas remanded the Hicks case to the 270th District Court of Harris County, Texas. Appellants did not file a special appearance or take any other action in the Hicks case after the federal court remanded it.

On October 6, 2009, Miguel Ruiz, a New York resident, also sued Waterman and Maersk in Texas state court (“the Ruiz case”). Ruiz's petition was substantively identical to Hicks's first petition, and this case was assigned to the 164th District Court of Harris County. On October 12, 2009, fellow crewmembers Husain Salah, Mohamed Abdelwaham, Andrew Brzezinski, Mario Clotter, and Hector Sanchez intervened in the Ruiz case.¹ On November 6, 2009, John Cronan, a Pennsylvania resident, also intervened in the Ruiz case. On December 1, 2009, Hicks nonsuited his case in the 270th District Court and intervened in the Ruiz case the next day.

Waterman and Maersk filed special appearances in response to Ruiz's original petition on December 18, 2009.² In their special appearances, Waterman and Maersk alleged that they were incorporated in Alabama and Delaware, respectively, and had their principal places of business in Alabama and Virginia, respectively. Both contended that the trial court could not exercise specific jurisdiction because the plaintiffs' cause of action did not arise out of or relate to any contacts either defendant had with Texas. They further contended that the exercise of general jurisdiction was improper because most of their contacts with Texas were random, fortuitous, and attenuated, and the contacts did not rise to the level of purposeful availment of the benefits and protections of Texas law. Appellants finally contended that, even if the trial court could properly exercise general jurisdiction, this exercise would violate traditional notions of fair play and substantial justice because the case has no connection to Texas: all of the parties and witnesses reside in other states, no evidence exists in Texas, and the underlying incident occurred off the coast of Somalia.

Appellees objected to the special appearance affidavit of Peter Johnston, Waterman's Executive Vice President, on the ground that he lacked personal knowledge of the affidavit's contents. Appellees raised this argument at the special appearance hearing, but the trial court never specifically ruled on this objection and it never struck Johnston's affidavit as incompetent special appearance evidence.

The trial court denied Waterman's and Maersk's special appearances. Both appellants requested findings of fact and conclusions of law. However, they appealed to this court before the trial court could issue findings and conclusions. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon 2008) (allowing interlocutory appeal from order denying special appearance).

Waiver of Special Appearance

In their first issue, appellees contend that Waterman and Maersk waived their special appearances in the Ruiz case because they did not contest the exercise of personal jurisdiction in state or federal court in the first-filed Hicks case. Waterman and Maersk contend that Hicks's nonsuit of his original petition extinguished any waiver of their objections to personal jurisdiction, and thus Waterman and Maersk did not waive their special appearances in the Ruiz case. We agree with Waterman and Maersk.

Under the Texas Rules of Civil Procedure, “[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes.” Tex.R. Civ. P. 162; Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). A nonsuit “extinguishes a case or controversy from ‘the moment the motion is filed’ or an oral motion is made in open court....” Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex.2006) (per curiam) (quoting Shadowbrook Apartments v. Abu–Ahmad, 783 S.W.2d 210, 211 (Tex.1990) (per curiam)). A nonsuit of the plaintiff's cause of action “is not an adjudication of the rights of the parties and does not extend to the merits of the action; it merely puts them back in the position they were in before the lawsuit was brought.” Parker v. JPMorgan Chase Bank, 95 S.W.3d 428, 431–32 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex.App.-Amarillo 1997, no writ) (“[A] non-suit is a termination of the pleaded causes of action and asserted defenses without an adjudication of their merits that returns the litigants to the positions they occupied before the plaintiff invoked the court's jurisdiction.”); see also Houston Indep. Sch. Dist. v. Morris, No. 01–10–00043–CV, 2011 WL 1936005, at *7 (Tex.App.-Houston [1st Dist.] May 19, 2011, no pet. h.) (“When the Taxing Units nonsuited their claims for delinquent taxes, the Taxpayers' affirmative defense became moot....”)....