Affirmed and Memorandum Opinion filed September =
27,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-01143-CV
____________
MILYN=20
CANADA, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD,=20
S.C.,=20
Appellant
V.
TALEN=3DS MARINE & =
FUEL, INC. AND=20
BARRY MILLER, =
Appellees
On Appeal from the =
61st District Court
Harris=20
County, =
Texas
Trial Court Cause =
No. 2005-59031
M E M O R=20
A N D U M O P I N I O N
In this=20
interlocutory appeal,=20
appellant Milyn Canada, individually and on behalf of her minor =
child, S.=20
C., appeal the trial court=3Ds order=20
granting appellees, Talen=3Ds Marine=20
& Fuel , Inc. (ATalen@) and=20
Barry Miller=3Ds special=20
appearances. In a single issue, appellant argues the trial court =
erred=20
when it granted appellees=3D =
special=20
appearances as appellees=3D =
contacts=20
with Texas are sufficient to give the trial court personal =
jurisdiction=20
over appellees. Finding no error, we affirm.
Factual=20
and Procedural Background
Before we=20
can lay out the facts of this appeal, we must first address a =
preliminary=20
issue of exactly what evidence is in the record on appeal. =
Appellant=20
attached three documents in an appendix to her brief to this court =
that=20
are not found in the appellate record. We may not consider =
exhibits=20
or appendices attached to briefs that are not part of the =
appellate=20
record. Ramex Construction Co. v. Tamcon Services, =
Inc., 29=20
S.W.3d 135, 138 (Tex. App.CHouston=20
[14th Dist.] 2000, no pet.). Therefore, we may not =
consider=20
these documents in our review of the trial court=3Ds order=20
granting appellees=3D =
special=20
appearance. With that introduction, we examine the facts =
underlying=20
this appeal.
On July=20
15, 2005, appellant was driving home to Houston on Interstate 10 =
in Lake=20
Charles, Louisiana when her vehicle was involved in a collision =
with one=20
of Talen=3Ds delivery=20
trucks. Talen=3Ds=20
employee, Barry Miller, a Louisiana resident, was the driver of =
the=20
truck. At the time of the collision, Miller was traveling to =
Westlake, Louisiana to pick up fuel for a delivery to a Talen =
customer in=20
Jeanerette, Louisiana.
Talen is a=20
Louisiana corporation with its principal place of business in Lake =
Arthur,=20
Louisiana. Miller is a resident of Louisiana. Talen =
does not=20
have a permanent office in Texas, does not have a Texas bank =
account, and=20
does not own property in Texas. Talen contracts with its =
business=20
customers, all of which have their principal places of business in =
Louisiana, to deliver fuel to locations designated by =
Talen=3Ds=20
customers. Talen admits that some of those deliveries are to =
locations in Texas. According to Talen, these deliveries are =
minimal, comprising one percent or less of Talen=3Ds monthly=20
fuel deliveries. Talen maintains a passive website in that =
it is used=20
solely for advertising and does not allow the exchange of =
information=20
between Talen and potential customers. On this website, =
Talen=20
advertises it is a member of the TAAA, which appellant suggests is =
the=20
acronym for the Texas Agricultural Aviation Association. In=20
addition, Talen=3Ds=20
website advertises that it Aprovides=20
fuel delivery services to Louisiana, Mississippi, Texas, and =
Alabama using=20
it=3Ds=20
[sic] own fleet of 18 wheelers and bobtails@=20
and offers free delivery to all of Louisiana and southeast=20
Texas.
Appellant=20
filed suit against appellees in Harris County, Texas. =
Appellees=20
filed special appearances objecting to the trial court asserting =
personal=20
jurisdiction over them, which the trial court granted. This =
interlocutory=20
appeal followed.
Discussion
A. =20
Standard of Review
The=20
plaintiff bears the initial burden of pleading sufficient =
allegations to=20
bring a nonresident defendant within the personal jurisdiction of =
a Texas=20
court. BMC Software Belgium, N.V. v. Marchand, 83 =
S.W.3d 789,=20
793 (Tex. 2002). A defendant challenging the =
court=3Ds=20
assertion of personal jurisdiction must negate all jurisdictional =
bases.=20
Id.
Whether=20
a court has personal jurisdiction over a defendant is a question =
of law,=20
which we review de novo. Id. at 794. =
Frequently=20
when deciding a special appearance, a trial court must resolve =
questions=20
of fact before deciding the jurisdiction question. =
Id. =20
When, as here, a trial court does not issue findings of fact and=20
conclusions of law with its special appearance ruling, all facts =
necessary=20
to support the judgment and supported by the evidence are implied. =
Id. at 795. A reviewing court must affirm if the =
judgment can=20
be upheld on any legal theory supported by the evidence. =
Minucci=20
v. Sogevalor, S. A., 14 S.W.3d 790, 794 (Tex. App.CHouston=20
[1st Dist.] 2000, no pet.).
B. =20
In Personam Jurisdiction
The=20
Texas long-arm statute governs Texas courts=3D=20
exercise of jurisdiction over nonresident defendants. See =
Tex. Civ. Prac. & Rem. Code Ann. '=20
17.041B.045=20
(Vernon 1997 & Supp. 2006). That statute permits =
Texas=20
courts to exercise jurisdiction over nonresident defendants doing =
business=20
in the state of Texas. Tex. Civ. Prac. & Rem. Code Ann.=20
'=20
17.042. The broad language of section 17.42 extends Texas=20
courts=3D=20
personal jurisdiction as far as the federal constitutional =
requirements of=20
due process will permit. BMC Software, 83 S.W.3d at=20
795. Because the long-arm statute=3Ds=20
concept of Adoing=20
business@=20
extends as far as federal due process will allow, any activity or =
contact=20
which satisfies due process constitutes doing business, and any =
contact=20
which does not satisfy due process does not constitute doing =
business, and=20
we need not analyze the Adoing=20
business@=20
requirement separate from the due process requirement. =
Vosko v.=20
Chase Manhattan Bank, N.A., 909 S.W.2d 95, 98 (Tex. =
App.CHouston=20
[14th Dist.] 1995, writ denied). To determine whether the =
assertion=20
of personal jurisdiction is consistent with the requirements of =
due=20
process, we rely on precedent from the United States Supreme Court =
and=20
other federal courts, as well as Texas decisions. BMC =
Software, 83=20
S.W.3d at 795.
Personal=20
jurisdiction over nonresident defendants is constitutional when =
two=20
conditions are met: (1) the defendant has established minimum =
contacts=20
with the forum state, and (2) the exercise of personal =
jurisdiction=20
comports with traditional notions of fair play and substantial =
justice.=20
Id. (citing Int=3Dl=20
Shoe Co. v. Washington,=20
326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). =
The=20
purpose of the minimum contacts analysis is to protect the =
defendant from=20
being haled into court when its relationship with Texas is too =
attenuated=20
to support jurisdiction. American Type Culture =
Collection, Inc.=20
v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The minimum =
contacts=20
analysis requires that a defendant Apurposefully=20
avail@=20
himself of the privilege of conducting activities within the state =
of=20
Texas, thus invoking the benefits and protections of Texas law.=20
Id. (citing Burger King Corp. v. Rudzewicz, =
471 U.S.=20
462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Where the=20
defendant has deliberately created continuing obligations =
between=20
himself and residents of the forum state, he manifestly has =
availed=20
himself of the privilege of conducting business there. =
Burger=20
King, 471 U.S. at 475B76,=20
105 S.Ct. at 2184.
A=20
defendant is subject to personal jurisdiction based on his own =
purposeful=20
activity and not on the unilateral acts of a third party.=20
Michiana Easy Livin=3D=20
Country, Inc. v. Holten,=20
168 S.W.3d 777, 785 (Tex. 2005). Therefore, it is only the=20
defendant=3Ds=20
contacts with the forum that count when determining whether he has =
purposefully availed himself of the privilege of conducting =
business in=20
the state of Texas. Id. In addition, the acts =
relied=20
upon must be Apurposeful@=20
rather than fortuitous. Id. Also, a defendant =
must seek=20
some benefit, advantage, or profit by Aavailing@=20
himself of the jurisdiction. Id. It is the =
quality and=20
the nature of the defendant=3Ds=20
contacts, rather than the quantity, that is important to the =
minimum=20
contacts analysis. American Type Culture, 83 S.W.3d =
at=20
806. Random, isolated, or fortuitous contacts with the forum =
state=20
are insufficient to confer jurisdiction. Michiana, =
168 S.W.3d=20
at 785.
Personal=20
jurisdiction exists if the nonresident defendant=3Ds=20
minimum contacts give rise to either general or specific =
jurisdiction.=20
BMC Software, 83 S.W.3d at 795. General =
jurisdiction is=20
present when the defendant=3Ds=20
contacts in a forum are continuous and systematic so that the =
forum may=20
exercise personal jurisdiction over the defendant even if the =
cause of=20
action did not arise from or relate to activities conducted within =
the=20
forum state. Id. at 796. Specific jurisdiction =
is=20
established if the cause of action arises from the =
defendant=3Ds=20
contacts with the forum. Id.
C. =20
There is No Specific Jurisdiction Over =
Appellees
Appellant=20
appears to argue that the facts of this case justify a Texas court =
exercising specific jurisdiction over appellees. However, =
despite=20
appellant=3Ds=20
suggestion that the collision underlying this lawsuit occurred=20
Anear=20
the Texas/Louisiana border,@=20
the facts regarding the location of the collision are =
uncontested. =20
The collision occurred in Lake Charles, Louisiana. It is =
also=20
uncontested that, when the collision occurred, Miller was en route =
to a=20
Louisiana location to pick up fuel to deliver to another Louisiana =
location. Specific jurisdiction is established only if the =
cause of=20
action arises from the defendant=3Ds=20
contacts with the forum. Id. That is not the =
case=20
here. Therefore, under the facts of this case, a Texas court =
may not=20
exercise specific jurisdiction over appellees.
D. =20
There is No General Jurisdiction Over Appellees
1. =20
Barry Miller
General=20
jurisdiction is present when the defendant=3Ds=20
contacts in a forum are continuous and systematic so that the =
forum may=20
exercise personal jurisdiction over the defendant even if the =
cause of=20
action did not arise from or relate to activities conducted within =
the=20
forum state. Id. There is no evidence in the =
record=20
demonstrating that Miller, a Louisiana resident driving a truck in =
Louisiana for a Louisiana corporation, had any contacts with =
Texas. =20
Therefore, there is no general jurisdiction over =
Miller.
2. =20
Talen=3Ds=20
Marine & Fuel , Inc.
While=20
Talen admits to isolated deliveries into Texas, these contacts are =
insufficient to support general jurisdiction. See Reyes =
v. Marine=20
Drilling Companies, Inc., 944 S.W.2d 401, 404B05=20
(Tex. App.CHouston=20
[14th Dist.] 1997, no writ) (affirming a trial =
court=3Ds=20
granting of a special appearance and holding that (1) purchasing =
$183=20
million in goods from 471 different persons and companies in =
Texas; (2)=20
purchasing more than $63 million in products from a single Texas =
company;=20
(3) advertising in five Texas periodicals for employees to work in =
Mississippi; (4) selling over $800,000.00 worth of scrap metal to =
Texas=20
companies for delivery in Mississippi; (5) sending more than two =
hundred=20
representatives into Texas to visit potential vendors and/or to =
review=20
equipment and material being sold to Ingalls, the Mississippi =
defendant;=20
are insufficient to establish general jurisdiction over =
Ingalls). =20
The only evidence in the appellate record establishes that=20
Talen=3Ds=20
Texas deliveries were at the request of Talen=3Ds=20
Louisiana customers and were no more than random, isolated, or =
fortuitous=20
contacts with Texas and thus are insufficient to confer=20
jurisdiction. See Michiana, 168 S.W.3d at =
785.
In=20
addition, based on the record before us, Talen=3Ds=20
membership in the TAAA is insufficient to confer general=20
jurisdiction. There is nothing in the appellate record =
establishing=20
the actual name of the organization and, more importantly, its=20
purpose. Therefore, the fact that Talen advertises that it =
belongs=20
to an organization with the acronym TAAA, is insufficient to =
establish=20
general jurisdiction.
Appellant=20
also asserts that Talen advertises that it markets lubricants =
manufactured=20
by ExxonMobil and Chevron, which appellant contends are =
Texas-based=20
companies, is sufficient to confer general jurisdiction. =
However,=20
there is no evidence in the record establishing that ExxonMobil =
and=20
Chevron are actually Texas-based companies or the details of=20
Talen=3Ds=20
marketing of their lubricants. Therefore, the alleged =
relationships=20
between Talen and ExxonMobil and Chevron, respectively, are =
insufficient=20
to confer general jurisdiction.
Finally,=20
appellant argues that, by not contesting personal jurisdiction in =
a=20
lawsuit filed against it in the United States District Court for =
the=20
Southern District of Texas, Talen has consented to personal =
jurisdiction=20
in the present suit. However, appellant cites no legal =
authority=20
which supports this argument. On appeal, an =
appellant=3Ds=20
brief must contain a clear and concise argument for the =
contentions made=20
with appropriate citations to authorities and the record. Tex. R. =
App.=20
P. 38.1(h). =
Failure=20
to do so results in waiver of that issue on appeal. Accordingly, =
because=20
appellant failed to cite legal authority in support of this =
argument, she=20
has waived this argument on appeal.
As=20
we have determined that the trial court did not err when it found =
that=20
appellees did not have minimum contacts with Texas sufficient to =
assume=20
jurisdiction over them, we overrule appellant=3Ds=20
single issue on appeal.
Conclusion
Having=20
overruled appellant=3Ds=20
only issue, we affirm the trial court=3Ds=20
granting of appellees=3D=20
special appearances.
/s/ =20
John S. Anderson
Justice
Judgment=20
rendered and Memorandum Opinion filed September 27, =
2007.
Panel=20
consists of Justices Anderson, Fowler, and Frost.
Tex. Civ. Prac. & Rem. Code =
Ann.=20
' 51.014(a)(7) (Vernon Supp.=20
2006).
Because we find =
appellees=3D established they did not have minimum =
contacts=20
with Texas sufficient for a Texas court to assume jurisdiction =
over them,=20
we need not address whether the assertion of jurisdiction would =
comport=20
with the notions of fair play and substantial justice. Tex. =
R. App.=20
P.=20
=
47.1. |