Texas Judiciary Online - HTML Opinion

^{^[1]} =20 See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(7) (Vernon Supp. 2006) (allowing = appeal=20 from an interlocutory order that Agrants or denies the special appearance = of a=20 defendant . . .@)

^{^[2]} =20 In determining the purposeful availment requirement: (1) only the=20 defendant's forum state contacts matter, not anyone else's; (2) = the=20 contacts must be purposeful, not merely random, isolated, or = fortuitous;=20 and (3) a nonresident defendant must seek some benefit, advantage, = or=20 profit by "availing" itself of the jurisdiction, thus impliedly = consenting=20 to suit in the forum. See Michiana Easy = Livin=3D County, Inc. v.Holten, 168 S.W.3d 777, 785 (Tex.=20 2005).

^{^[3]} =20 See, e.g., Moki, 221 S.W.3d at 585, 587B88 (deciding that a = nonresident=3Ds in-state promotional activities were = too=20 attenuated to satisfy specific jurisdiction in Texas because the = actual=20 focus of the litigation at trial would be the alleged negligence = of the=20 defendant for failing to exercise reasonable care); BMC = Software=20 Belgium, N.V. v. Marchand, 83 S.W.3d 789, = 796B87 (Tex. 2002) (deciding that specific=20 jurisdiction did not exist over a foreign subsidiary where the=20 plaintiff=3Ds causes of action could only arise from = activities that occurred outside of Texas).

^{^[4]} =20 Compare Guardian Royal Exch. Assurance, Ltd. v. English China=20 Clays, P.L.C., 815 S.W.2d 223, 232 (Tex. 1991) (holding = that=20 the liability insurer of a corporation and its 120 subsidiaries = located in=20 many countries, including the United States, could reasonably = anticipate=20 litigation in any state), with Malaysia British Assurance, SDN, = BHD, v.=20 El Paso Reyco, Inc., 830 S.W.2d 919, 921 (Tex. 1992) (holding = that in=20 personam jurisdiction could not be exercised by a Texas court over = a=20 foreign corporation that reinsured a policy of insurance issued by = another=20 foreign corporation to cover a Texas resident).

^{^[5]} =20 See Exito Elecs., Co. v. Trejo, 166 S.W.3d 839, 857 (Tex.=20 App.CCorpus Christi 2005, no pet.); Koll = Real Estate=20 Group, Inc. v. Howard, 130 S.W.3d 308, 316 (Tex. = App.CHouston [14th Dist.] 2004, no = pet.); Koll=20 Real Estate Group, Inc. v. Purseley, 127 S.W.3d 142, = 147B48 (Tex. App.CHouston [1st Dist.] 2003, no=20 pet.).

^{^[6]} =20 In the merger, Enterprises received $25 million for undertaking = various=20 obligations, including the contingent liability for the indemnity=20 obligation. Appellants contend that appellees overstated the = amounts=20 of these contingent liabilities in order to receive a portion of = the=20 merger proceeds without paying appellants their pro rata = share. =20 Appellants claim that, because appellees=3D promise to indemnify InfraSource for = money it may=20 spend on environmental remediation in Texas is one of the alleged=20 overvalued contingent liabilities, there is a substantial = connection=20 between appellees=3D in-state activities and the operative = facts of=20 this lawsuit.

^{^[7]} =20 See e.g., Experimental Aircraft Ass'n, Inc. v. Doctor, 76 = S.W.3d=20 496, 506B07 (Tex. App.CHouston [14th Dist.] 2002, no pet.); = but see=20 Weldon-Francke v. Fisher, No. 14B06B00834BCV, 2007 WL 2592990, at * 8 & n.4 = (applying=20 Asliding scale@ and stating: AWe note that even if the website were on = the=20 opposite end of the sliding scale [allowing a defendant to do = business=20 over the Internet], research shows no Texas cases holding that = general=20 jurisdiction can be based on such a website alone...@).

^{^[8]} =20 Experimental Aircraft,76 S.W.3d at 506B07; Compuserve, Inc. v. = Patterson, 89 F.3d=20 1257, 1264 (6th Cir, 1996).

^{^[9]} =20 Experimental Aircraft, 76 S.W.3d at 506B07.

^{^[10]} =20 There is no evidence that Enterprises has any connection to the = website=20 and appellants=3D brief does not argue that the website = is a basis=20 for general jurisdiction over Enterprises.

^{^[11]} =20 See CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) = (requiring=20 that a defendant conduct substantial activities with the forum); = Reiff=20 v. Roy, 115 S.W.3d 700, 706 (Tex. App.BDallas 2003, pet. denied) (finding that = a website=20 providing maps and directions did not constitute systematic and = continuous=20 contact between the defendant and Texas). Appellants argue that=20 Exelon=3Ds subsidiaries=3D customers and suppliers are able to = engage in=20 online transactions through the website. However, the use of = the=20 website by Exelon=3Ds subsidiaries generally cannot be = imputed to=20 Exelon to establish personal jurisdiction over Exelon. = See, e.g.,=20 Commonwealth Gen. Corp. v. York, 177 S.W.3d 923, 925 (Tex. = 2005)=20 (stating, when analyzing personal jurisdiction, Aseparate corporations are presumed to be = distinct=20 entities@); Zamarron v. Shinko Wire Co., = 125 S.W.3d=20 132, 142 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) = (stating=20 A[a]s long as the parent and subsidiary = maintain=20 separate and distinct corporate entities, the presence of one in a = forum=20 state may not be attributed to the other.@). In addition, appellants have = asserted no=20 claims to disregard the separate legal existence of these = corporations.=20

^* =20 Senior Justice Richard H. Edelman sitting by=20 = assignment.