Nogle & Black Aviation, Inc. v. Faveretto (Tex.App.- Houston [14th Dist.] Apr. 9, 2009)
(Yates)(special appearance)
AFFIRMED IN PART/REVERSED AND RENDERED:
Opinion by Justice Brock Yates
Before Justices Brock Yates, Seymore and Boyce
14-08-00272-CV Nogle & Black Aviation, Inc. and Charles Judson Nogle v. Anna Maria Faveretto as
Next Friend of Alejandro Migliori and Mariana Migliori, Minors, AmeriCountyMigliori as Administrator of
the Estate of Peitro Foster Migliori
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Russel P. Austin
O P I N I O N
Appellants Nogle & Black Aviation, Inc. (AN&B@) and Charles Judson Nogle appeal the trial court=s
orders denying their special appearances. We conclude that the trial court lacked personal jurisdiction
over Nogle but properly exercised personal jurisdiction over N&B. Therefore, we affirm in part and
reverse and render in part.
BACKGROUND
Nogle, an Illinois resident, owns N&B, which is an Illinois company in the business of performing
maintenance, inspections, and modifications on aircraft, primarily Beechcraft T-34 planes. N&B built
the aircraft at issue in this case in 1990 and included a certain type of modified wing spars. N&B then
sold the accident aircraft to a Georgia company later that year. In 1991, a T-34 with the same type of
modified wing spars crashed. The Federal Aviation Administration (AFAA@) grounded the altered T-
34s and issued an airworthiness directive concerning T-34 wing spars, which set forth criteria for
correcting the unsafe condition so that an aircraft could regain its airworthy status. In response, N&B
developed an Alternative Means of Compliance (AAMOC@) with the airworthiness directive. If the FAA
approves an AMOC, then an aircraft can regain its airworthy status by complying with the AMOC rather
than the criteria in the airworthiness directive. The FAA approved N&B=s AMOC, and the accident
aircraft as well as many other T-34s around the country complied with the AMOC and resumed
airworthy status. The accident aircraft was later sold again to a Texas entity known as PRVNY Pluk
and operated by Texas Air Aces, also a Texas entity.
In 2003, another T-34 crashed, and the FAA issued another airworthiness directive concerning T-34
wing spars and grounded affected aircraft. N&B developed a second AMOC to address these
concerns, which the FAA approved, and the accident aircraft and other T-34s around the country
complied with this procedure and resumed airworthy status. Several months after the accident aircraft
resumed airworthy status, Peitro Montgomery Migliori was flying it as a student pilot when a wing broke
off during flight, causing a crash that killed him and the instructor pilot. Mr. Migliori was a Venezuelan
citizen, and the crash occurred in Texas.
Appellees Anna Maria Faveretto as Next Friend of Alejandro Migliori and Mariana Migliori, Minors, and
Americo Migliori as Administrator of the Estate of Peitro Foster Migliori (collectively Athe Miglioris@)
sued Nogle and N&B, among others, in Texas. Nogle and N&B filed special appearances, which the
trial court denied. They now appeal.
ANALYSIS
A. Legal Standard
Whether a trial court has personal jurisdiction over a defendant is a question of law. BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Schott Glas v. Adame, 178 S.W.3d 307,
312 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). When the facts underlying the jurisdictional
issue are undisputed, we review the trial court=s determination de novo. Schott Glas, 178 S.W.3d at
312; see American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
However, when the relevant facts are disputed, a party may challenge the trial court=s underlying
conclusions for legal and factual sufficiency. Schott Glas, 178 S.W.3d at 312. If the trial court does
not issue findings of fact, we presume the trial court resolved all factual disputes in favor of its
judgment. Id. The plaintiff bears the initial burden of pleading facts sufficient to establish personal
jurisdiction. Marchand, 83 S.W.3d at 793; Schott Glas, 178 S.W.3d at 313. The burden then shifts to
the defendant challenging personal jurisdiction to negate all bases of jurisdiction alleged by the
plaintiff. Marchand, 83 S.W.3d at 793; Schott Glas, 178 S.W.3d at 313.
The Texas long-arm statute governs Texas courts= exercise of personal jurisdiction over a nonresident
defendant. See Tex. Civ. Prac. & Rem. Code Ann. '' 17.041B.045 (Vernon 2008); Schott Glas, 178 S.
W.3d at 312. The long-arm statute reaches as far as federal constitutional due process will allow, and
thus the long-arm statute is satisfied if an assertion of personal jurisdiction comports with due process.
See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007); Schott Glas, 178 S.W.3d
at 312. Personal jurisdiction is proper when the nonresident defendant has established Aminimum
contacts@ with the forum and the exercise of jurisdiction comports with A>traditional notions of fair play
and substantial justice.=@ Moki Mac, 221 S.W.3d at 575 (quoting Int=l Shoe Co. v. Washington, 326 U.
S. 310, 316 (1945)).
When analyzing personal jurisdiction, the touchstone of the minimum contacts analysis is purposeful
availmentCthe defendant=s contacts must show that it purposefully availed itself of the privileges and
protections of the forum=s law to subject itself to jurisdiction there. See Michiana Easy Livin= Country,
Inc. v. Holten, 168 S.W.3d 777, 784B85 (Tex. 2005); see also Brocail v. Anderson, 132 S.W.3d 552,
557 (Tex. App.CHouston [14th Dist.] 2004, pet. denied) (noting that A[t]he purposeful availment
requirement is a threshold@). Any contacts that do not amount to purposeful availment are irrelevant
in the jurisdictional analysis. See Olympia Capital Assocs., L.P. v. Jackson, 247 S.W.3d 399, 406 (Tex.
App.CDallas 2008, no pet.). What is important is the quality and nature of the defendant=s contacts
with the forum rather than the number of contacts. American Type Culture, 83 S.W.3d at 806.
A defendant=s contacts can give rise to either general or specific jurisdiction. General jurisdiction is
based on continuous and systematic contacts with the forum. Moki Mac, 221 S.W.3d at 575. Specific
jurisdiction is based on purposeful contacts that give rise or relate to the litigation. Id. at 576. The
Miglioris allege the trial court has specific jurisdiction over both Nogle and N&B and also general
jurisdiction over N&B.
B. Jurisdiction Over Nogle
In two issues, Nogle alleges the trial court improperly exercised personal jurisdiction over him
individually. Nogle holds a certification from the FAA that gives him authority to sign off on major
repairs or alterations on aircraft. Such a sign off is necessary for a grounded aircraft to regain
airworthy status. At the request of PRVNY Pluk and Texas Air Aces, Nogle provided technical
assistance over the telephone to the mechanics working to make the accident aircraft compliant with
the second AMOC. Nogle then signed off on the modification and mailed the certificate to Texas. The
Miglioris claim these actions by Nogle individually are sufficient to establish personal jurisdiction over
him because Nogle knew the accident aircraft was owned and operated in Texas, he mailed the
certificate to Texas, and without this certification, which the Miglioris claim relates to the portion of the
aircraft that failed in the crash, the accident aircraft would not have been in the air. We disagree.
In analyzing specific jurisdiction, we first determine whether Nogle made minimum contacts with Texas
by purposefully availing himself of the privilege of conducting activities here. See Moki Mac, 221 S.W.
3d at 576. Purposeful availment focuses on the defendant=s actions, not on the actions of third
parties. Michiana Easy Livin=, 168 S.W.3d at 787; Olympia Capital Assocs., 247 S.W.3d at 416B17.
Nogle did not advertise or otherwise target his services to Texas specifically. See Olympia Capital
Assocs., 247 S.W.3d at 416; cf. Moki Mac, 221 S.W.3d at 578B79. His technical support services to
assist in implementing the second AMOC and his services in signing off on repairs to comply with this
AMOC were available to all T-34 owners across the country. It was PRVNY Pluk and Texas Air Aces=s
request, not Nogle=s initiative, that led to Nogle providing his services regarding the accident aircraft,
and such contacts are insufficient to show purposeful availment. See Olympia Capital Assocs., 247 S.
W.3d at 416B17 (providing bid to potential client at client=s sole request is not purposeful availment);
Weldon-Francke v. Fisher, 237 S.W.3d 789, 797 (Tex. App.CHouston [14th Dist.] 2007, no pet.)
(answering questions and responding to requests is not purposeful availment). This case is similar to
Michiana Easy Livin=, in which the Texas Supreme Court held that a single sale to Texas that was
initiated completely by the buyer, when the seller did nothing to target Texas specifically, did not
establish purposeful availment of the laws and benefits of Texas. See Michiana Easy Livin=, 168 S.W.
3d at 787.
Even though Nogle had a role in the chain of events that put this Texas accident aircraft in the air
before crashing in Texas, that is not enough to establish purposeful availment. See Michel v. Rocket
Eng=g Corp., 45 S.W.3d 658, 671 (Tex. App.CFort Worth 2001, no pet.) (noting that a Ageneralized
>but for= relationship between the forum and a non‑resident defendant falls far short of meeting the
requirement for specific jurisdiction that the plaintiff's cause of action must >relate to= or >arise out of=
the non‑resident's activities within the forum@). We sustain Nogle=s third issue. Because we
determine that Nogle did not purposefully avail himself of the benefits of conducting activities in Texas,
we need not consider his fourth issue, in which he argues that the exercise of personal jurisdiction over
him would offend due process.
C. Jurisdiction Over N&B
In two issues, N&B contends the trial court erred in concluding it had personal jurisdiction over it, either
based on specific or general jurisdiction, and that exercising jurisdiction would violate traditional
notions of fair play and substantial justice.
1. Minimum Contacts
Although the Miglioris base their specific jurisdiction theory on many different contacts, we find specific
jurisdiction is proper based on N&B=s interactions with Victor Juarez. Juarez, a Texas resident, is an
engineer. He was paid to perform engineering work regarding the design of an inspection procedure
on the T-34 wing spar. N&B used Juarez=s work, which was performed in Texas, in submitting its
AMOC to the FAA for approval. The FAA approved the AMOC, which N&B then sold for profit to many
T-34 owners. In their petition, the Miglioris allege, among other things, that N&B was negligent in its
Adesign, installation, and inspection of the wing spar.@
We first consider whether N&B=s contacts with Juarez amount to purposeful availment. Purposeful
availment analysis considers not only the conduct of the defendant, as opposed to the plaintiff or a
third party, but also whether those contacts were random or fortuitous and whether the defendant
benefitted from those contacts. See Moki Mac, 221 S.W.3d at 575. We conclude that N&B=s
relationship with Juarez amounted to purposeful availment. A contract with a Texas resident alone
does not show a purposeful contact with Texas. See Ashdon, Inc. v. Gary Brown & Assocs., 260 S.W.
3d 101, 113 (Tex. App.CHouston [1st Dist.] 2008, no pet.); Olympia Capital Assocs., 247 S.W.3d at
417. Other factors about the nature of the relationship are much more important, such as the place of
performance. See Barnstone v. Congregation Am Echad, 574 F.2d 286, 288B89 (5th Cir. 1978)
(noting that Ait is the place of performance rather than execution, consummation or delivery which
should govern the determination of jurisdiction@ and holding that plaintiff=s Aunilateral partial
performance@ in Texas was insufficient to establish jurisdiction); Ashdon, 260 S.W.3d at 113
(AGenerally, a contract calling for performance outside of Texas does not subject a party to jurisdiction
here.@). Juarez performed his engineering work in Texas. See Fleischer v. Coffey, 270 S.W.3d 334,
338 (Tex. App.CDallas 2008, no pet.) (finding jurisdiction proper based in part on contract being
performed in Texas); cf. American Type Culture, 83 S.W.3d at 807B08 (no jurisdiction, contract
performed out of state); Olympia Capital Assocs., 247 S.W.3d at 417B18 (same).
Furthermore, unlike Nogle=s technical assistance, this relationship was not unilaterally initiated by the
Texas resident. Cf. Michiana Easy Livin=, 168 S.W.3d at 787. N&B specifically chose Juarez among
other possible candidates because it liked his work the best. The doctrine of purposeful availment
recognizes that a defendant can make choices to avoid benefitting from activities in Texas. See Moki
Mac, 221 S.W.3d at 575; Michiana Easy Livin=, 168 S.W.3d at 785. Even though N&B may have made
some such choices, such as not locating any employees or offices in Texas and not targeting the
Texas market, it specifically chose to use the work of this Texas resident. That work was performed in
Texas, N&B used it in completing its AMOC, and N&B made money doing so when it sold the AMOC to
T-34 owners. It is not unreasonable to expect that the choice to use a Texas engineer doing work in
Texas to assist with the design of a wing spar modification could lead to litigation in Texas for a claim
relating to a wing spar failure. See GJP, Inc. v. Ghosh, 251 S.W.3d 854, 880B81 (Tex. App.CAustin
2008, no pet.) (noting nonresident defendants controlled whether transaction occurred in Texas and
that Ait is not unreasonable or unexpected that they might be hailed into court here in regard to claims
arising from that activity@). For these reasons, we conclude N&B=s use of Juarez=s services amounts
to purposeful contact with Texas.[1]
Having concluded that N&B=s use of Juarez=s services amounted to purposeful contact, we now
consider whether the litigation arises from or relates to that contact. See Moki Mac, 221 S.W.3d at
576. In making this determination, we focus on relationship among the defendant, Texas, and the
litigation. Id. at 575B76. To support an exercise of specific jurisdiction, there must be a substantial
connection between a nonresident defendant=s forum contacts and the operative facts of the
litigation. Id. at 585. The issue of whether negligence in the design and inspection of the wing spar
modification in the AMOC caused the wing separation on the accident aircraft is an operative fact in
this litigation, and Juarez=s engineering work is directly related to that. See Retamco Operating, Inc. v.
Republic Drilling Co., No. 07-0599, __ S.W.3d __, 2009 WL 490063, at *5 (Tex. Feb. 27, 2009) (finding
personal jurisdiction and stating, in litigation over unpaid royalties, that the Texas real property itself
Awill also be an operative fact, or at the very least, will have a substantial connection to the operative
facts@).
N&B asserts that Juarez=s work is irrelevant because there is no evidence to show N&B actually
worked on the part of the accident aircraft that failed. Nogle states in an affidavit that the AMOC-
related modifications to the accident aircraft were applicable only to the wing spars and that the wing=s
center section, rather than its spars, failed on the accident aircraft. In their petition, the Miglioris allege
negligence against N&B in causing the crash, based in part on its alleged negligent design, installation,
and inspection of the wing spars.[2] Whether N&B actually was negligent regarding the wing spars and
whether a problem with the wing spars actually caused the crash are merits-based questions that
should not be resolved in a special appearance. See Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.
3d 829, 839 (Tex. App.CHouston [14th Dist.] 2008, pet. filed); Kelly v. Gen. Interior Constr., Inc., 262 S.
W.3d 79, 86 (Tex. App.CHouston [14th Dist.] 2008, pet. filed); see also Moki Mac, 221 S.W.3d at 582
(declining to adopt jurisdiction rule that Awould require a court to delve into the merits to determine
whether a jurisdictional fact is actually a legal cause of the injury@); Michiana Easy Livin=, 168 S.W.3d
at 790 (rejecting jurisdiction theory that would Aconfuse[] the roles of judge and jury by equating the
jurisdictional inquiry with the underlying merits@). We take the allegations in the petition as true at the
special appearance stage. Pulmosan Safety, 273 S.W.3d at 839; Flanagan v. Royal Body Care, Inc.,
232 S.W.3d 369, 377 (Tex. App.CDallas 2007, pet. denied). For jurisdictional purposes, Nogle=s
affidavit at most creates a fact issue regarding the allegations in the petition, and that is sufficient to
support the trial court=s determination that it had jurisdiction over N&B based on the connection
between the AMOC and the accident. See Pulmosan Safety, 273 S.W.3d at 839; Kelly, 262 S.W.3d at
86; Flanagan, 232 S.W.3d at 377.
Because we conclude that N&B had purposeful contacts with Texas through its relationship with Juarez
and those contacts are substantially connected to the operative facts of the litigation, we conclude the
trial court properly determined that it had specific jurisdiction over N&B. Thus, we overrule N&B=s first
issue.
2. Fair Play and Substantial Justice
N&B argues that even if it had sufficient purposeful contacts to establish specific jurisdiction, the trial
court erred in exercising jurisdiction because doing so violates traditional notions of fair play and
substantial justice. In making this determination, we consider (1) the burden on the defendant, (2) the
interests of the forum state in adjudicating the dispute, (3) the plaintiff=s interest in obtaining
convenient and effective relief, (4) the interstate judicial system=s interest in obtaining the most
efficient resolution of controversies, and (5) the shared interests of the several states in furthering
fundamental substantive social policies. Retamco Operating, 2009 WL 490063, at *5. Only in rare
cases will the exercise of personal jurisdiction fail to comport with fair play and substantial justice. Id.
N&B argues that forcing it to defend litigation in Texas would be unduly burdensome because it is an
Illinois resident without employees or offices in Texas. N&B asserts that Texas has only a minimal
interest in the litigation because the Miglioris are from Venezuela rather than Texas and the crash
could have happened anywhere. Finally, N&B contends the Miglioris can obtain relief against N&B in
Illinois, where all of N&B=s employees and witnesses are located. After considering the relevant
factors, we easily determine that the exercise of jurisdiction here is consistent with due process. N&B
will certainly incur more expense to defend litigation in Texas as opposed to its home state, but that
would be true for virtually any nonresident defendant. See id. Distance to travel is usually not a
significant consideration with the ease of modern transportation. Glencoe Capital Partners II, L.P. v.
Gernsbacher, 269 S.W.3d 157, 168 (Tex. App.CFort Worth 2008, no pet.). That is particularly true in
this case as N&B has several aircraft at its disposal. Texas does have an interest in the litigation
because the owner and operator of the accident aircraft are Texas entities, the crash was in Texas, a
Texas resident helped design part of the accident aircraft that is alleged to have failed, the instructor
pilot who died was a Texas resident, and Migliori=s estate administration is pending in Texas. See
Kelly, 262 S.W.3d at 87; Flanagan, 232 S.W.3d at 378. The crash litigation involves multiple
defendants, and forcing the Miglioris to litigate the plane crash both in Texas and in Illinois is costly and
inconvenient for them as well as the witnesses and parties in Texas and is a waste of judicial
resources. See Kelley, 262 S.W.3d at 87; Control Solutions, Inc. v. Gharda Chems. Ltd., 245 S.W.3d
550, 562 (Tex. App.CHouston [1st Dist.] 2007, no pet.).
This is not one of the rare cases when exercising personal jurisdiction would violate traditional notions
of fair play and substantial justice. We overrule N&B=s second issue.
CONCLUSION
We hold that the trial court properly exercised personal jurisdiction over N&B but that it erred in
exercising personal jurisdiction over Nogle. Accordingly, we affirm the trial court=s judgment as to N&B
and reverse the trial court=s judgment as to Nogle and render judgment that the Miglioris= claims
against Nogle be dismissed for lack of personal jurisdiction.
/s/ Leslie B. Yates
Justice
Panel consists of Justices Yates, Seymore, and Boyce.
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[1] Even though it cites personal jurisdiction case law regarding the effects of contracts with Texas
residents, N&B also asserts in its brief that there is no evidence of an actual contract with Juarez.
Nogle=s deposition testimony shows that Juarez was paid for performing engineering work, which N&B
used in developing the AMOC and submitting it to the FAA. Thus, even if N&B did not have a contract
with Juarez, it had a substantial relationship where it knowingly used his work, which was performed in
Texas, to develop its AMOC.
[2] The causation evidence in the court=s record is thin. We have not been presented with even the
crash report, much less expert testimony. We have only the allegations in the petition and Nogle=s
affidavit. At oral argument, the Miglioris complained that they were limited to jurisdictional discovery
and thus could not conduct discovery on causation. By focusing on the operative facts of the litigation,
Moki Mac would seem to suggest that some level of discovery regarding causation could be
jurisdictional discovery when the contacts the plaintiff alleges supports jurisdiction relate to causation.
However, we need not resolve this issue because the Miglioris raised no appellate issue regarding any
improper limitations on discovery. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).