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Opinion issued = September 27,=20 2007























In The

Court of=20 Appeals

For=20 The

First=20 District of Texas



NO. = 01-06-00844-CV


MOSAMMAT = LALILA AND=20 SAJEDA, ET AL.,=20 (1) Appellants



V.


NIKO = RESOURCES,=20 LTD., and NIKO RESOURCES (BANGLADESH), LTD.,=20 Appellees



On = Appeal from the=20 152nd District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2005-54021-A



MEMORANDUM = OPINION

Appellants, Mosammat Lalila and = Sajeda=20 and approximately 765 other people who reside in or around = Tangratila,=20 Bangladesh (collectively, "the Bangladesh Residents"), appeal the = trial=20 court's orders granting the special appearances filed by = appellees, Niko=20 Resources, Ltd. ("Niko Resources") and Niko Resources = (Bangladesh), Ltd.=20 ("Niko Bangladesh") (collectively, "the Niko Entities").=20 (2) The Bangladesh Residents specifically deny that they = seek to=20 assert general jurisdiction over the Niko Entities. In their sole = issue on=20 appeal, the Bangladesh Residents assert that the trial court erred = by=20 granting the special appearances, stating,

(1) The Niko Entities Waived = Their=20 Special Appearance[;]



(2) The Niko Entities = Maintained=20 Purposeful, Continuous and Systematic Contacts With = Texas[;]

(3) The Niko Entities Were = "Doing=20 Business" in Texas[;]



(4) Maintaining Jurisdiction = Over the=20 Niko Entities Will Not Offend Traditional Notions of Fair Play or=20 Substantial Justice[; and]



(5) Niko Resources and Niko = Bangladesh=20 Were Operated as a Single Business Entity With Respect to the = Tangratila=20 Project[.]



We conclude that the Niko = Entities'=20 attempts to secure releases from the Bangladesh Residents is not = conduct=20 that constitutes a general appearance. We also conclude that the = trial=20 court did not err by granting the special appearances because = neither Niko=20 Resources nor Niko Bangladesh established the requisite minimum = contacts=20 with Texas to support the exercise of personal jurisdiction. We = therefore=20 need not reach the issue of whether the exercise of personal = jurisdiction=20 over Niko Resources or Niko Bangladesh would offend traditional = notions of=20 fair play and substantial justice. We further conclude that the = Bangladesh=20 Residents waived appellate review of their contention that Niko = Resources=20 and Niko Bangladesh were operated as a single business entity. We = affirm=20 the orders of the trial court.

Background

Niko Bangladesh is a Barbados = corporation=20 that is an indirectly wholly-owned subsidiary of Niko Resources, a = Canadian corporation. In 2003, the government of the Peoples = Republic of=20 Bangladesh granted Niko Resources permission to conduct operations = in the=20 Tangratila gas field. Niko Bangladesh entered a contract with = China=20 Petroleum Technology and Development Corporation ("China = Petroleum"), a=20 Chinese corporation with an office in Houston, Texas, to drill an=20 exploration well in the Tangratila field. On January 7, 2005, the=20 exploration well exploded, injuring the Bangladesh = Residents.

Niko Bangladesh entered into a = contract=20 with GSM Consulting Petroleum Engineers ("GSM"), a Texas company, = to=20 design a relief well. Niko Bangladesh also contracted with Parker = Drilling=20 Company International, Ltd. ("Parker International"), a Nevada = company,=20 with its principal office in Houston, to drill the relief well. = GSM was to=20 supervise and oversee the relief well project. On June 23, 2005, = the=20 relief well caught fire and exploded, causing further = injuries.

On August 19, 2005, the = Bangladesh=20 Residents filed suit in district court in Harris County against = Niko=20 Resources and Parker Drilling Company ("Parker Drilling"), a Texas = corporation and the parent of Parker International, asserting = claims for=20 negligence, nuisance, trespass, and conversion. After conducting = some=20 discovery, the Bangladesh Residents filed an amended petition = adding Niko=20 Bangladesh, GSM, China Petroleum, Parker International, and Qasim = Sharif=20 (3) as additional defendants.

In their live pleading before = the trial=20 court, the Bangladesh Residents alleged that Niko Resources = "formulated a=20 joint enterprise with co-defendants named herein and participated, = designed, planned and formulated a tort that occurred in Harris = County,=20 Texas, which, as a result, occasioned significant and extensive = harm to=20 the Plaintiffs." The Bangladesh Residents further alleged that the = Niko=20 Entities,

retained [China Petroleum], = Parker=20 Drilling Company and/or Parker Drilling Company International Ltd. = in=20 Texas, GSM Consulting, Inc. in Texas and other entities for = consulting and=20 to design and prepare an original well and a 'relief well' at the=20 Tangratila gas well project. The design, plan, and preparation of = the=20 Tangratila project took place in the State of Texas through = several Texas=20 entities, including, but not limited to, Parker Drilling Company = and/or=20 Parker Drilling Company International Ltd., GSM Consulting, Inc., = [China=20 Petroleum's] Houston, Texas, office, and several other Texas = individuals=20 and entities.



Within the "Factual Background" = section=20 of the petition, the Bangladesh Residents alleged that "Niko = [Resources],=20 along with its agent and alter ego Niko Bangladesh, and its agents = Qasim=20 Sharif and [China Petroleum] negligently and with malice = improperly=20 drilled, designed, installed, managed, supervised, operated and = maintained=20 the original well such that it resulted in an initial blowout on = or about=20 January 7, 2005." Further, the Bangladesh Residents alleged that = "[t]he=20 Defendants also negligently designed a drilling plan for the = relief well=20 in Harris County, Texas." The Niko Entities filed special = appearances=20 asserting that the trial court lacked personal jurisdiction over = them.=20 Niko Resources filed a special appearance and a supplemental = special=20 appearance. It also filed a brief and supplemental brief in = support of its=20 special appearance, both with exhibits attached. In its special=20 appearance, Niko Resources contended that its "limited contacts = with the=20 state of Texas are insufficient to justify the assertion of = personal=20 jurisdiction over [it]" and that "the assertion of personal = jurisdiction=20 over [it] would offend traditional notions of fair play and = substantial=20 justice." Specifically, Niko Resources contended that the = Bangladesh=20 Residents' "causes of action do not arise out of any activities by = Niko=20 Resources conducted within or purposefully directed toward the = state of=20 Texas" because (1) it was not involved in any way with the = contracts=20 regarding the designing, installing, drilling, managing or = operating of=20 the original or relief wells in the Tangratila fields and (2) the = other=20 alleged tort--"failure to take appropriate steps to remediate and = limit=20 the impact of the explosions"--occurred, if at all, outside of = Texas. In=20 support of its position, Niko Resources submitted (1) an affidavit = and a=20 supplemental affidavit from William Hornady, the chief operating = officer=20 of Niko Resources; (2) the affidavit of Ronald Potter, the = corporate=20 secretary of Parker Drilling Company; (3) the affidavit of = Rokanuddin=20 Mahmud, a barrister-at-law licensed to practice law in Bangladesh; = (4) the=20 Bangladesh Residents' Responses to Parker Drilling Company's First = Request=20 for Admissions; and (5) articles regarding the legal system of = Bangladesh.=20 Niko Resources expressly incorporated the evidence submitted by = Niko=20 Bangladesh in support of its special appearance.

Niko Bangladesh also filed a = special=20 appearance with exhibits. Niko Bangladesh made the same = contentions as=20 Niko Resources--that the Bangladesh Residents' "causes of action = do not=20 arise out of any activities by Niko Bangladesh conducted within or = purposefully directed toward the State of Texas." In support of = its=20 special appearance, Niko Bangladesh submitted the affidavit of = Brian=20 Adolph, the Vice President and Country Manager for Niko = Bangladesh, which=20 included as exhibits to the affidavit many of the contracts = alleged by the=20 Bangladesh Residents to establish Niko Bangladesh's minimum = contacts with=20 Texas.

In their brief opposing the = special=20 appearances, the Bangladesh Residents asserted,

Defendant Niko Resources . . .=20 continuously and systematically conducts business with Texas = companies,=20 entities and individuals, and maintains agent(s), = representative(s) or=20 employee(s) in the State of Texas. Defendant Niko Bangladesh is = the alter=20 ego and/or agent of Defendant Niko Resources and has also = conducted=20 business in the State of Texas on behalf of Niko = Resources.


Specifically, the Bangladesh = Residents=20 assert that jurisdiction over Niko Resources and Niko Bangladesh = is proper=20 because

In the instant matter, Niko = Resources and=20 Niko Bangladesh had purposefully engaged in contacts with Texas = entities,=20 as they retained Parker Drilling, Qasim Sharif, and GSM, all Texas = residents, to perform work on the Tangratila project. Further, = such=20 contacts with the State of Texas form the basis of the instant = lawsuit. In=20 other words, the causes of action arose, and are connected with=20 Defendant's contacts with Texas.



The Bangladesh Residents also = submitted=20 evidence that they contend supports the exercise of personal = jurisdiction=20 over Niko Resources and Niko Bangladesh. The Bangladesh Residents' = exhibits included:

1. "The contract between Niko = and Parker=20 Drilling over the Tangratila project";


2. "The contract between Niko = and GSM=20 over the Tangratila project";



3. "The contract between Niko = and Baker=20 Hughes over the Tangratila project";



4. "The contract between Niko = and Reed=20 Hycalog over the Tangratila project";



5. "The contract between Niko = and Smith=20 International over the Tangratila project";


6. "The contract between Niko = and=20 Geoservices, Inc. over the Tangratila project";


7. Emails and telephone records = allegedly=20 showing Niko Resources' and Niko Bangladesh's contacts with=20 Texas;



8. "Power of Attorney from Niko = Resources=20 to Qasim Sharif"; and



9. Invoices, wire transfer = records, and=20 airfreight and shipping documents allegedly showing Niko = Resources' and=20 Niko Bangladesh's contacts with Texas.

The trial court granted the = special=20 appearances. Although requested by the Bangladesh Residents, the = trial=20 court did not issue findings of fact or conclusions of = law.

Personal = Jurisdiction

In their sole = issue, the=20 Bangladesh Residents contend that the trial court erred by = granting the=20 Niko Entities' special appearances.

A. The Standard of=20 Review

A legal conclusion concerning = the=20 existence of personal jurisdiction is a question of law subject to = de=20 novo review, but that conclusion must sometimes be preceded = by the=20 resolution of underlying factual disputes. Am. Type Culture = Collection=20 Inc. v. Coleman, 83 S.W.3d 901, 805-06 (Tex. 2002); BMC = Software=20 Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). = "When=20 . . . the trial court does not issue fact findings, we = presume=20 that the trial court resolved all factual disputes in favor of its = ruling." Glattly v. CMS Viron Corp., = 177 S.W.3d 438, 445 (Tex. App.--Houston [1st Dist.] 2005, no = pet.)=20 (citing Am. Type Culture Collection, 83 S.W.3d at = 805-06). These=20 implied fact findings may be challenged for evidentiary = sufficiency when a=20 record exists. Id. (citing BMC = Software=20 Belg., 83 S.W.3d at 794). However, "we review de novo if the=20 underlying facts are undisputed or otherwise established." = Preussag=20 Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. = App.--Houston=20 [1st Dist.] 2000, pet. dism'd w.o.j.). Because = the=20 relevant, material evidence in the case before us is undisputed, = we review=20 the complained-of ruling de novo. See = id.

B. The Law of Special=20 Appearance

A plaintiff bears the initial = burden of=20 pleading allegations sufficient to bring a non-resident defendant = within=20 the terms of the Texas long-arm statute. Am. Type Culture=20 Collection, 83 S.W.3d at 807. "The nonresident = defendant=20 then assumes the burden of negating all bases of jurisdiction in = those=20 allegations." Moki Mac River Expeditions v. Drugg, 221 = S.W.3d=20 569, 574 (Tex. 2007).

C. The Law of Personal=20 Jurisdiction

A court may assert = personal=20 jurisdiction over a non-resident defendant if the requirements of = the Due=20 Process Clause of the United States Constitution=20 (4) and the Texas long-arm statute=20 (5) are both satisfied. Helicopteros Nacionales de = Colombia,=20 S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 1872 = (1984);=20 CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). = "Because the=20 Texas long-arm statute reaches 'as far as the federal = constitutional=20 requirements of due process will allow,' the statute is satisfied = if the=20 exercise of personal jurisdiction comports with federal due = process."=20 Preussag Aktiengesellschaft, 16 S.W.3d at 113 (quoting = CSR,=20 Ltd., 925 S.W.2d at 594). We thus examine = only=20 whether a Texas court's exercise of jurisdiction over the Niko = Entities=20 would comport with the requirements of federal due process. = See=20 id.

1.=20 Minimum-Contacts Analysis

"Federal=20 due process requirements are two-fold." Id. "First, the=20 nonresident defendant must have purposefully established such = minimum=20 contacts with the forum state that it could reasonably anticipate = being=20 sued there." Id. (citing Burger King Corp. v. = Rudzewicz,=20 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 (1985)). "If the = nonresident=20 defendant has purposefully availed itself of the privileges and = benefits=20 of conducting business in a state, it has sufficient contacts to = confer=20 personal jurisdiction." Id. (citing Burger King = Corp.,=20 471 U.S. at 475, 105 S. Ct. at 2183). "Random, fortuitous, or = attenuated=20 contacts do not suffice." Id. (citing Burger King = Corp.,=20 471 U.S. at 475, 105 S. Ct. at 2183). It is the nature and quality = of the=20 non-resident's contacts, rather than their number, that are = important to=20 the minimum-contacts analysis. Id. (citing Guardian = Royal=20 Exch. Assur., Ltd. v. English China Clays, P.L.C., = 815=20 S.W.2d 223, 230 n.11 (Tex. 1991)).

To assess=20 whether a non-resident defendant has purposefully availed himself = of the=20 privileges and benefits of conducting business in Texas, we = examine three=20 elements. See Michiana Easy Livin' Country, Inc. v. = Holten, 168=20 S.W.3d 777, 785 (Tex. 2005). First,=20 only the defendant's own actions may constitute purposeful = availment; a=20 defendant may not be haled into a jurisdiction based solely on the = unilateral activities of a third party. Id. (citing = Burger=20 King Corp., 471 U.S. at 475, 105 S. Ct. at 2183). Second, the = defendant's acts must be purposeful, and a showing of random, = isolated, or=20 fortuitous contacts is insufficient. Id. (citing = Keeton v.=20 Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473, = 1478=20 (1984)). It is the quality, rather than the quantity = of=20 the contacts that is determinative. Silbaugh v. Ramirez, = 126=20 S.W.3d 88, 95 (Tex. App.--Houston [1st Dist.] 2000, no pet.). = Third, a=20 defendant must seek some benefit, advantage, or profit through his = purposeful availment, because jurisdiction is based on notions of = implied=20 consent; that is, by seeking the benefits and protections of a = forum's=20 laws, a non-resident consents to suit there. Id. (citing=20 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, = 297, 100 S.=20 Ct. 559, 567 (1980)). The purposeful availment test should focus = on "the=20 defendant's efforts to avail itself of the forum" and not "the = form of the=20 action chosen by the plaintiff." Moki Mac, 221 S.W.3d at = 576. By=20 the same token, a non-resident may structure a transaction to = avoid=20 benefitting from a forum's laws and thereby avoid being subject to = jurisdiction. Michiana, 168 S.W.3d at 785 (citing = Burger=20 King, 471 U.S. at 473, 105 S. Ct. at 2182). For example, a=20 choice-of-law provision that provides for the application of = another=20 forum's laws, while not precluding a Texas court from exercising=20 jurisdiction, "cannot be ignored when weighing purposeful = availment."=20 IRA Res., Inc. v. Griego, 221 S.W.3d 592, 598 (Tex. 2007) = (citing=20 Burger King, 471 U.S. at 482, 105 S. Ct. at 2187). =

Minimum-contacts analysis is = further=20 divided into general and specific personal jurisdiction. = Preussag=20 Aktiengesellschaft, 16 S.W.3d at 114. In this case, the = Bangladesh=20 Residents alleged specific jurisdiction only. We therefore do not = discuss=20 general jurisdiction.

A court may exercise specific = personal=20 jurisdiction over a non-resident defendant if (1) the non-resident = purposely directed its activities toward the forum state or = purposely=20 availed itself of the privileges of conducting activities there = and (2)=20 the controversy arises out of or is related to the non-resident's = contacts=20 with the forum state. Freudensprung v. Offshore Tech. Servs.,=20 Inc., 379 F.3d 327, 343 (5th Cir. 2004). The non-resident = defendant's=20 purposeful conduct, not the unilateral acts of the plaintiff, must = have=20 caused the contact. See Helicopteros Nacionales de Colombia,=20 S.A., 466 U.S. at 414, 104 S. Ct. at 1872. Although not=20 determinative, foreseeability is an important consideration in = deciding=20 whether the non-resident has purposefully established minimum = contacts=20 with the forum state. Glattly, 177 S.W.3d at 446-47. =

Even if a non-resident has = purposefully=20 availed himself of the benefits of conducting business in Texas, = there is=20 no specific jurisdiction over the non-resident unless the cause of = action=20 "arises from or is related to an activity conducted within the = forum."=20 BMC Software, 83 S.W.3d at 796. We focus our analysis on = the=20 relationship among the non-resident, the forum, and the litigation = to=20 determine if the alleged liability arises from or is related to an = activity conducted in Texas. Counter Intelligence, Inc. v. = Calypso=20 Waterjet Sys., Inc., 216 S.W.3d 512, 517 (Tex. App.--Dallas = 2007, no=20 pet. h.). The focus of the examination must be the nature of the = contacts=20 and the "nexus" that these contacts create with the forum state.=20 McDermott v. Cronin, 31 S.W.3d 617, 621-22 (Tex. = App.--Houston=20 [1st Dist.] 2000, no pet.). The "arises from or is related to" = requirement=20 of specific personal jurisdiction requires a "substantial = connection"=20 between the non-resident defendant's contacts and the "operative = facts of=20 the litigation." Moki Mac River Expeditions, 221 S.W.3d = at=20 584-85. That is, the non-resident's conduct must have been = purposely=20 directed at or have occurred in the forum and must have a = "substantial=20 connection," resulting in the alleged injuries, with the = litigation's=20 operative facts. Id.; Glattly, 177 S.W.3d at=20 447.

2. Fair Play and = Substantial=20 Justice

"Second, if the nonresident = defendant has=20 purposefully established minimum contacts with the forum, the = exercise of=20 jurisdiction must comport with fair play and substantial justice." = Preussag Aktiengesellschaft, 16 S.W.3d at 114 (citing = Burger=20 King Corp., 471 U.S. at 477, 105 S. Ct. at 2184 and = Guardian=20 Royal, 815 S.W.2d at 231).

D. = Discussion

In their sole issue, the = Bangladesh=20 Residents assert that the trial court erred by granting the Niko = Entities'=20 special appearances because (1) the Niko Entities waived their = special=20 appearances; (2) the contacts of both the Niko Entities should be=20 considered together because they were operated as a single = business=20 enterprise; (3) the Niko Entities had sufficient minimum contacts = with=20 Texas to support specific personal jurisdiction over them; (4) and = the=20 exercise of personal jurisdiction over them comported with fair = play and=20 substantial justice.

1. Waiver of Special=20 Appearance

The Bangladesh Residents assert = that the=20 Niko Entities waived their special appearances by entering general = appearances through their actions that recognized that the lawsuit = was=20 properly pending in the Texas court. In their brief, the = Bangladesh=20 Residents contend that the Niko Entities recognized that the = pending=20 action in the Texas court was proper because of the Niko Entities = attempts=20 to

(1) buy-off individual = Appellants cheaply=20 who were represented by counsel;



(2) buy-off individual = Plaintiffs by=20 inducing them into executing false "releases";=20 (6) = [and]


(3) harass=20 individual witnesses who had knowledge of facts pertinent to this = action=20 over a Texas proceeding, namely, the special appearance hearing . = . .=20 .



The Niko Entities respond that = the=20 Bangladesh residents have mis-characterized the evidence = concerning the=20 releases. Specifically, the Niko Entities contend that the alleged = releases do not contain a release of either company and that no = evidence=20 shows that either company recognized that the action is properly = pending=20 in the Texas court.

A party enters a = general=20 appearance, and waives a special appearance, when it "recognizes = by its=20 acts that an action is properly pending."=20 (7) Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, = 304=20 (Tex. 2004) (citing Dawson-Austin=20 v. Austin, 968 S.W.2d 319, 322 (Tex. 1998)). A defendant=20 waives its special appearance by seeking affirmative action from = the court=20 or by acknowledging the court's jurisdiction, such as by filing = and=20 obtaining a hearing on a motion to quash service of process = without any=20 objections to the proceedings, and seeking a continuance from the = court.=20 Dawson-Austin, 968 S.W.2d at 322. However, a party's = action that=20 does not "address the trial court" and does not request any = affirmative=20 action from the court, such as a Rule 11 agreement=20 (8) filed in court in which the opposing attorneys agree = to=20 extend the deadline for the defendant to file its initial = responsive=20 pleading, is insufficient to constitute a general appearance = because that=20 action does not recognize that the lawsuit is properly before the = court.=20 Exito Elecs. Co., 142 S.W.3d at 306 (noting that = Rule 11=20 agreement in that case "merely acknowledges that [the defendant] = is=20 required to respond to the petition in some = manner").

Although the releases = mention=20 that the lawsuit is pending in Texas, they are not addressed to = the court;=20 they do not seek relief from the court; they were not filed with = the=20 court; they do not seek any affirmative action from the court; and = they do=20 not in any way concede that the action is properly pending in the = court.=20 See id. We conclude that the Niko Entities have not = "recognize[d]=20 by [their] acts that an action is properly pending." See = id. at=20 304. We hold that the Niko Entities did not waive their special=20 appearances by securing releases from the Bangladesh Residents and = did not=20 generally appear. See id.

2. Niko Entities as = Single=20 Business Enterprise

In this appeal, the Bangladesh = Residents=20 contend that "Niko Resources and Niko Bangladesh were operated as = a single=20 business entity with respect to the Tangratila project" and, thus, = "their=20 contacts with Texas, when viewed in the aggregate, clearly = constitute=20 sufficient contacts for the Court to impose jurisdiction over = both."

An appellant's brief "must = contain a=20 clear and concise argument for the contentions made, with = appropriate=20 citations to the authorities and to the record." Tex. R. App. P. = 38.1(h).=20 Where the appellant does not do so, it waives the issue on appeal. = Holloway-Houston, Inc. v. Gulf Coast Bank & Trust = Co., 224=20 S.W.3d 353, 361 n.3 (Tex. App.--Houston [1st Dist.] 2006, no = pet.). In=20 their brief, the Bangladesh Residents make the following = assertion: "There=20 is extensive evidence to show that Niko Resources is the real = party in=20 interest that negotiated, oversaw, and controlled the Tangratila = project,=20 and that Niko Resources and Niko Bangladesh were operated as a = single=20 business entity." The Bangladesh Residents then cite to numerous = "facts=20 and events" in the record to support this. However, the Bangladesh = Residents' brief contains no citation to authority concerning the = "single=20 business entity" theory and no analysis of the numerous facts = cited. We=20 conclude that the Bangladesh Residents have not properly briefed = this=20 issue and it is waived. See Tex. R. App. P. 38.1(h);=20 Vickery, 999 S.W.2d at 352-53. We therefore address the = minimum=20 contacts of Niko Resources and Niko Bangladesh separately. See = Preussag Aktiengesellschaft, 16 S.W.3d at 121-22 (noting that = absent=20 showing of "alter-ego" between parent and subsidiary corporation,=20 subsidiary's contacts with Texas were not attributable to parent). =

3. Minimum=20 Contacts

The Bangladesh = Residents=20 contend that the trial court erred by finding that it lacked = specific=20 jurisdiction over the Niko Entities because they have sufficient = contacts=20 with Texas arising from and related to the underlying cause of = action for=20 negligence. As the Bangladesh Residents summarize in their=20 brief,

[S]ubstantial work relating to = the=20 Tangratila gas well project was planned, obtained from, performed = and=20 implemented in Texas. Companies, individuals and equipment from = Texas were=20 central to the design, management, supervision, logistics, = implementation=20 and completion of the Tangratila gas well project. In fact, the = Niko=20 Entities obtained numerous Texas entities and individuals to = perform work=20 on the Tangratila project. The Niko Entities' contacts with these = entities=20 and individuals form the basis of Appellants' lawsuit against the = Niko=20 Entities, namely the negligent design, drilling, and personnel = provided in=20 connection to the Tangratila gas well project. In other words, the = causes=20 of action arose from the Niko Entities' contacts with Texas. As = such,=20 there is sufficient basis for Texas to assert specific = jurisdiction over=20 the Niko Entities for the Tangratila gas well project.

The Niko Entities respond that = the=20 Bangladesh Residents' claims "do not arise out of any activities = by Niko=20 Resources or Niko Bangladesh conducted within or directed toward = Texas,"=20 but instead "arise from events occurring, if at all, in = Bangladesh, not=20 Texas."



a. Niko=20 Resources

The Bangladesh Residents = contend that=20 Niko Resources established minimum contacts with Texas through = actions=20 concerning (1) the original well, (2) the relief well, (3) the = former=20 president who was a Texas resident, and (4) a letter from the = Chief=20 Operating Officer about the relief well.

(1) The Original=20 Well

The Bangladesh Residents = contend that=20 Niko Resources "negligently and with malice improperly drilled, = designed,=20 installed, managed, supervised, operated and maintained the = original=20 well."

Niko Resources presented the = affidavit of=20 William Hornady. Hornady is the chief operating officer of Niko = Resources=20 and has been since December 2004. Hornady averred that Niko = Resources did=20 not contract with China Petroleum, only Niko Bangladesh did. = Hornady also=20 specifically averred that "Niko Resources did not design or drill = the=20 original exploration well or the relief well" and that it "is not = the=20 operator of either well." Niko Resources did not contract with any = company=20 in Texas to buy or lease equipment or obtain services for its = operations=20 in Bangladesh. Further, the contract for the original well = (between Niko=20 Bangladesh and China Petroleum) provides in a choice of law = provision that=20 Canadian law would govern the agreement. See Griego, 221 = S.W.3d=20 at 598.

The = Bangladesh=20 Residents did not file any affidavit contradicting Hornady's = affidavit.=20 The Bangladesh Residents contend in their reply brief that "Niko = Resources=20 is the real party in interest with the power and authority to = perform the=20 project." However, as discussed above, we must treat the contacts = of Niko=20 Resources separately from those of Niko Bangladesh.=20 See Preussag=20 Aktiengesellschaft, 16 S.W.3d at 121-22.

(2) The Relief=20 Well

The Bangladesh = Residents=20 assert that Niko Resources "negligently designed a drilling plan = for the=20 relief well." Hornady averred in his affidavit that Niko = Bangladesh, not=20 Niko Resources, contracted with GSM and Parker International for = the=20 design and drilling of the relief well. He also stated that Niko = Resources=20 did not design, drill or operate the relief well. Further, the = contracts=20 for the relief well (between Niko Bangladesh and GSM and Parker=20 International) each provide in their respective choice of law = provisions=20 that Canadian law would govern the agreement. See Griego, = 221=20 S.W.3d at 598.

(3) Former President = was Texas=20 Resident.

The Bangladesh Residents also = contend=20 that Niko Resources' former president, who held a special power of = attorney to act on behalf of Niko Resources and Niko Bangladesh, = was a=20 Texas resident. However, affidavits from Hornady and Brian Adolph, = the=20 Vice President and Country Manager for Niko Bangladesh, show that = Sharif=20 was the president of Niko Bangladesh and was not an employee of = Niko=20 Resources. Sharif resided in Bangladesh when he was hired and he = was=20 granted the power of attorney, and neither Niko Resources nor Niko = Bangladesh sent him to Texas to conduct any business. Further, = Sharif's=20 office for Niko Bangladesh was located in Bangladesh, not Texas. = Finally,=20 the power of attorney identified by the Bangladesh Residents = expressly=20 limits Sharif's authority to "negotiating and carrying out the = terms of=20 any oil and gas transaction within the Country of = Bangladesh."=20 (Emphasis added).

The Bangladesh Residents do not = dispute=20 the facts asserted in Hornady's and Adolph's affidavits. They have = presented no evidence or argument to show that Sharif's presence = in Texas=20 was a purposeful act by Niko Resources to avail itself of the = benefits or=20 privileges of doing business in Texas.

(4) Letter from Chief = Operating=20 Officer about Relief Well

The Bangladesh Residents also = point to=20 the actions of Hornady concerning the relief well. According to = the=20 Bangladesh Residents, Hornady, the Chief Operating Officer of Niko = Resources, not Niko Bangladesh, "contacted . . . Parker = [International] in=20 Houston to negotiate [a] deal for Rig 2555, which was utilized for = the=20 Tangratila [relief well] project." Hornady exchanged emails with = Parker=20 International discussing the availability of Parker International = to=20 perform a drilling contract for the relief well. These exchanges = resulted=20 in Hornady sending a letter of intent to Parker International's = office in=20 Houston. In the letter of intent, Hornady expressly states that = Niko=20 Bangladesh had "determined to award the drilling contract" to = Parker=20 International. The letter also set out some terms, such as a = provision=20 that the contract would have a minimum term of 120 days and that = the=20 contract must be executed by January 19, 2005. The letter was on = Niko=20 Resources stationery and signed by Hornady as "Chief Operating = Officer."=20 Niko Bangladesh and Parker International did enter into a drilling = contract for the relief well. Niko Resources is not a party to = that=20 contract. Further, as noted above, in the final contract between = Niko=20 Bangladesh and Parker International, the parties agreed that = Canadian law=20 would govern the agreement.

In his affidavit, Hornady = explained that=20 because of the explosion on the original well, "it was necessary = to begin=20 preparations to immediately drill a relief well" and that he = contacted=20 Parker International "to expedite an agreement between Niko = Bangladesh and=20 Parker International to drill the relief well."

(5) = Analysis

The above = facts do=20 not show that Niko Resources purposefully availed itself of the = benefits=20 and privileges of doing business in Texas. The contracts were = entered into=20 by Niko Bangladesh and not Niko Resources. See Michiana, = 168=20 S.W.3d at 785 (citing Burger King, 471 U.S. at 475, 105 = S. Ct. at=20 2183) (only defendant's own actions may constitute purposeful = availment).=20 Sharif's residency in Texas was not accomplished by an act of Niko = Resources. See id.; see also Keeton, 465 U.S. at 774, 104 S. = Ct. at=20 1478) (purposeful availment not shown by = random,=20 isolated, or fortuitous acts). The one act by Niko Resources' = chief=20 operating officer, Hornady, was expressly done on behalf of Niko=20 Bangladesh and ultimately resulted in a contract between Niko = Bangladesh=20 and Parker International. See Michiana, 168 S.W.3d at 785 = (citing World-Wide=20 Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567) (defendant = must seek=20 some benefit, advantage, or profit to show purposeful availment). = Further,=20 the contract that resulted from Hornady's initial communications = with=20 Parker International expressly chose Canadian law as the governing = law.=20 See Griego, 221 S.W.3d at 598 (citing Burger = King, 471=20 U.S. at 482, 105 S. Ct. at 2187) (choice-of-law provision that = provides=20 for application of another forum's laws "cannot be ignored when = weighing=20 purposeful availment"). We therefore hold that the trial court did = not err=20 in concluding that Texas does not have specific jurisdiction over = Niko=20 Resources.

We overrule the Bangladesh = Residents'=20 sole issue as it pertains to Niko Resources.

b. Niko=20 Bangladesh

The Bangladesh Residents make = the same=20 jurisdictional allegations with respect to Niko Bangladesh as they = do=20 regarding Niko Resources, asserting that Niko Bangladesh has = minimum=20 contacts with Texas through actions concerning (1) the original = well, (2)=20 the relief well, (3) the former president who was a Texas = resident, and=20 (4) a letter from the Chief Operating Officer about the relief=20 well.

(1) The Original Well = and (2) The=20 Relief Well

The Bangladesh = Residents=20 contend that Niko Bangladesh "negligently and with malice = improperly=20 drilled, designed, installed, managed, supervised, operated and = maintained=20 the original well." The Bangladesh Residents also assert that Niko = Bangladesh "negligently designed a drilling plan for the relief = well."=20 Specifically, the Bangladesh Residents assert that by contracting = with=20 GSM, a Texas company, to design the relief well and with Parker=20 International, which had its principal office in Texas, to drill = the=20 relief well, Niko Bangladesh purposefully established minimum = contacts=20 with Texas. The Bangladesh Residents also point out that (1) GSM = and=20 Parker International sent Texas residents to Bangladesh to drill = and=20 operate the relief well; (2) parts for the relief well were = shipped from=20 Texas companies to Bangladesh; (3) Niko Bangladesh telephoned and = emailed=20 the Texas companies regarding the relief well project; and (4) = Niko=20 Bangladesh sent some payments for the services and parts for the = relief=20 well project to Texas.

Assuming without deciding that = the=20 contacts identified by the Bangladesh Residents amount to = purposeful=20 contacts with Texas by Niko Bangladesh, this, alone does not show=20 jurisdiction is proper. "For specific-jurisdiction purposes, = purposeful=20 availment has no jurisdictional relevance unless the defendant's = liability=20 arise from or relates to the forum contacts." Moki Mac, = 221=20 S.W.3d at 579. This requires "a substantial connection between = those=20 contacts and the operative facts of the litigation." Id. = at=20 585.

In Moki Mac, the = plaintiffs,=20 Texas residents, sued Moki Mac, a Utah-based river-rafting = outfitter.=20 Id. at 573. After the plaintiffs' son died on a rafting = trip=20 conducted by Moki Mac, they filed suit in Texas for wrongful = death,=20 alleging negligence and intentional or negligent = misrepresentations.=20 Id. Moki Mac filed a special appearance, which the trial = court=20 denied. Id. The court of appeals affirmed, holding that = there was=20 specific jurisdiction over Moki Mac because the misrepresentation = claims=20 arose from and related to Moki Mac's purposeful contacts with = Texas.=20 Id. The supreme court, in reviewing the denial of the = special=20 appearance, first examined Moki Mac's contacts with Texas and held = that=20 Moki Mac purposefully availed itself of the privilege of doing = business in=20 Texas, by, among other things, purposefully directing marketing to = Texas,=20 establishing regular communications with its customers in Texas, = and using=20 prior customers to recruit additional customers from Texas. = Id.=20 at 578-59.

The supreme court, however, = determined=20 that Texas did not have personal jurisdiction because there was = not a=20 substantial connection between Moki Mac's contacts with Texas and = the=20 operative facts of the litigation. Id. at 588. Accepting = as true=20 the plaintiffs' claim that, but for the representations made in = the=20 brochures and release sent to the plaintiffs in Texas by Moki Mac, = the=20 plaintiffs' son would not have gone on the rafting trip, the = supreme court=20 went on to state,

However, the operative facts of = [the=20 plaintiffs'] suit concern principally the guides' conduct of the = hiking=20 expedition and whether they exercised reasonable care in = supervising=20 [plaintiffs' son]. The events on the trail and the guides' = supervision of=20 the hike will be the focus of the trial, will consume most if not = all of=20 the litigation's attention, and the overwhelming majority of the = evidence=20 will be directed to that question. Only after thoroughly = considering the=20 manner in which the hike was conducted will the jury be able to = assess=20 [the plaintiffs'] misrepresentation claim. In sum, "the [alleged=20 misrepresentation] is not the subject matter of the case . . . nor = is it=20 related to the operative facts of the negligence action." =


Id. at 585 (quoting = Rush v.=20 Savchuk, 444 U.S. 320, 329, 100 S. Ct. 571, 578 = (1980)).

As in Moki Mac and=20 Rush, here, there is no significant connection between = the=20 litigation and the plaintiff's chosen forum. The Bangladesh = Residents do=20 not allege that the contracts entered into in Texas harmed them. = Rather=20 they allege that the negligent design, drilling, and operation of = the well=20 caused their injuries. The Bangladesh Residents contend that the = design of=20 the well was done by GSM in Texas. They do not assert that Niko = Bangladesh=20 designed the well. At most, the Bangladesh Residents contend that = Niko=20 Bangladesh contracted with a company in Texas that designed the = well. But=20 the contract is not the basis of the Bangladesh Residents' = lawsuit. The=20 operative facts of the Bangladesh Residents' suit concern = principally=20 conduct of the Tangratila well operation in Bangladesh and whether = that=20 operation was conducted with reasonable care. The events in = Bangladesh and=20 the conduct of the drillers and operators of the well in = Bangladesh "will=20 be the focus of the trial, it will consume most if not all of the=20 litigation's attention, and the overwhelming majority of the = evidence will=20 be directed to that question." See Moki Mac, 221 S.W.3d = at 585.=20 In other words "the [Texas contracts are] not the subject matter = of the=20 case . . . nor are [they] related to the operative facts of the = negligence=20 action." See Rush, 444 U.S. at 329, 100 S. Ct. at 578.=20

(3) Former President = was Texas=20 Resident.

The Bangladesh Residents also = contend=20 that Niko Resources' former president, who held a special power of = attorney to act on behalf of Niko Bangladesh, was a Texas = resident. As=20 discussed above, the record shows that (1) Sharif was the = president of=20 Niko Bangladesh; (2) he resided in Bangladesh when he was hired; = (3) Niko=20 Bangladesh did not send him to Texas to conduct any business; (4) = Sharif's=20 office for Niko Bangladesh was located in Bangladesh, not Texas; = and (5)=20 the power of attorney identified by the Bangladesh Residents = expressly=20 limits Sharif's authority to "negotiat[e] and carry[] out the = terms of any=20 oil and gas transaction within the Country of = Bangladesh."=20 (Emphasis added).

Assuming, without deciding, = that the=20 residence of Niko Bangladesh's president amounts to a contact by = Niko=20 Bangladesh purposefully directed towards Texas, it has no = substantial=20 connection to this case. The Bangladesh Residents have not = alleged, and=20 the record does not reveal, that Sharif's presence in Texas or = anything he=20 might have done in Texas is, or bears a substantial connection to, = an=20 operative fact of the litigation. To the contrary, Hornady's and = Adolph's=20 affidavits state that Sharif did not engage in any activity in = Texas on=20 behalf of Niko Bangladesh regarding the Tangratila well=20 project.

(4) Letter from Chief = Operating=20 Officer about Relief Well

The Bangladesh Residents also = point to=20 the actions of Hornady, Niko Resources' chief operating officer. = Hornady=20 initiated contact with Parker International, which ultimately = developed=20 into the contract between Niko Bangladesh and Parker International = for the=20 drilling of the relief well.

However, as discussed above, = the contract=20 with Parker International has no substantial connection to the = operative=20 facts of this case. Likewise, the initial contact that led to the=20 negotiations that eventually developed into the contract is not an = operative fact of the litigation and it does not bear any = substantial=20 connection to any operative facts. The Bangladesh Residents have = not=20 alleged that these negotiations were wrongful or were the cause of = their=20 injuries.

(5) Analysis =

Because the contacts alleged by = the=20 Bangladesh Residents--contracts with Texas companies--do not have = a=20 substantial connection to the operative facts of this = litigation--the=20 alleged negligent design, drilling and operation of the wells in=20 Bangladesh--we conclude that the trial court did not err in ruling = that=20 there is no specific jurisdiction over Niko Bangladesh.

The Bangladesh Residents cite = to two=20 cases to support their assertion that the contacts of Niko = Bangladesh=20 discussed above are sufficient to authorize the exercise of = personal=20 jurisdiction over Niko Bangladesh. First, the Bangladesh Residents = cite=20 CSR Ltd. v. Link for the proposition that "specific = jurisdiction=20 is established where the alleged liability arises from activity = within the=20 forum state." 925 S.W.2d at 595. In CSR, the supreme = court held=20 that there was no personal jurisdiction over the = non-resident=20 defendant, CSR. Id. at 596. CSR's only contact with Texas = was=20 having sold asbestos that was shipped directly to Houston. = Id. at=20 595. The supreme court, noting that placing an item in the stream = of=20 commerce, alone, does not amount to an act purposefully directed = towards=20 the forum state, stated that the record "contains no evidence that = CSR=20 took any act purposefully directed toward selling or distributing = the raw=20 asbestos fiber in Texas." Id. at 595-96. The instant case = is not=20 a "stream of commerce" case and--other than the general principle = cited=20 above--we conclude that CSR is inapplicable to this=20 case.

The Bangladesh Residents also = cite=20 Cartlidge v. Hernandez, asserting that "[s]o long as it = creates a=20 substantial connection with the forum state, even a single act can = support=20 jurisdiction." 9 S.W.3d 341, 348 (Tex. App.--Houston [14th Dist.] = 1999, no=20 pet.). Although we agree with this general statement of the law, = the facts=20 of Cartlidge are distinguishable from the facts of this = case. In=20 Cartlidge, Cartlidge, a non-resident attorney entered = into=20 contracts with two clients in Texas to represent them in a suit = against a=20 hospital. Id. at 344. He also communicated to the clients = in=20 Texas regarding the status and the progress of his representation. = Id. at 345. Later, the clients sued him for legal = malpractice,=20 alleging that he was "negligent in the performance of his duties = under the=20 agreements he signed to represent them." Id. Thus, unlike = the=20 situation in this case, the operative facts of the litigation bore = a=20 direct and substantial connection with the defendant's contact = with=20 Texas--the contracts and communications to Texas were the very = basis and=20 focus of the plaintiffs' suit. See id. at 348. In the = instant=20 case, neither Niko Bangladesh's contractual obligations nor its=20 communications with Texas companies are the focus of this suit. = The focus=20 is the negligent acts of the companies that designed, drilled and = operated=20 the well. Because the facts are distinguishable, = Cartlidge is=20 inapplicable.

We overrule the Bangladesh = Residents'=20 sole issue as it pertains to Niko Bangladesh.=20 (9)

Conclusion

We overrule the Bangladesh = Residents'=20 sole issue in this appeal. We affirm the orders of the trial court = granting the special appearances filed by appellees, Niko = Resources, Ltd.=20 and Niko Resources (Bangladesh), Ltd.





Elsa Alcala

Justice


Panel consists of Justices = Taft,=20 Jennings, and Alcala.

APPENDIX


HALIMA = BEGUM,=20 Individually, and as next friend of ASHFIA AKHTER SRITI, MONIRA = BEGUM,=20 JASIM UDDIN, ABDUL LATIF, Individually, and as next friend of = BAJASTER,=20 ABDUL JABBAR, ABU SAYAD, SAMAD, MD. NAZIR HOSSAIN, Individually, = and as=20 next friend of HAPIA BEGUM, ABDUL LATIF, Individually, and as next = friend=20 of NOOR MUHAMMAD, HAFIA KHATUN, JAHIRUL ISLAM, MD. NAZIR HOSSAIN,=20 Individually, and as next friend of SUJAN, SUMON, ISMAIL ALI,=20 Individually, and as next friend of JARINA KHATUN, MD. NAZIR = HOSSAIN,=20 Individually, and as next friend of MUKTA, ISMAIL ALI, = Individually, and=20 as next friend of ALAMAS, JUNAIDUL ISLAM, MD. NAZIR HOSSAIN, = Individually,=20 and as next friend of SAJUL, ISMAIL ALI, Individually, and as next = friend=20 of ASMA KHATUN, MD. NAZIR HOSSAIN, Individually, and as next = friend of=20 UJJAL, ISMAIL ALI, Individually, and as next friend of SALMA, = TASLIMA=20 KHATUN, RAHIMA BEGUM, Individually, and as next friend of MOFIZ = UDDIN,=20 HAZRAT ALI, ZABBAR, JAHANGIR, JASMIN, MRS. AMERA BEGUM, = Individually, and=20 as next friend of GOLAM MUSTAFA, RAHIMA BEGUM, Individually, and = as next=20 friend of DOLLY, MRS. AMERA BEGUM, Individually, and as next = friend of MD.=20 JHURE MEA, MONOWARA BEGUM, ABBAS MIA, Individually, and as next = friend of=20 SURAYA BEGUM, ALAMIN, PAPPU, MRS. AMERA BEGUM, Individually, and = as next=20 friend of DELOWARA BEGUM, ABBAS MIA, Individually, and as next = friend of=20 HAMID, MONIKA, KHOKA MIA, Individually, and as next friend of = AMBIA, ABDUS=20 SALAM, Individually, and as next friend of ROMANA BEGUM, KHOKA = MIA,=20 Individually, and as next friend of MOKBUL, TASLIMA, KARIMA, = AKTER, ABDUS=20 SALAM, Individually, and as next friend of RAKIBUL HASSAN, KHOKA = MIA,=20 Individually, and as next friend of ASIA, MUKTER, ABDUS SALAM,=20 Individually, and as next friend of RUBEL HASSAN, GOLAM MUSTAFA,=20 Individually, and as next friend of RUPIA AKTER, MARINA AKTER, = ANJUMANARA=20 BEGUM, NASRIN AKTER, Individually, and as next friend of ABDUL = JABBAR,=20 HOSSAIN ALI, Individually, and as next friend of JAMINA KHATUN, = SAKIL=20 AHMED, HASINA KHATUN, FALU MIA, NASRIN AKTER, Individually, and as = next=20 friend of MD. ARIAN MAHMUD, MOHAMMAD ALAK MIR, Individually, and = as next=20 friend of MEHROONESA, MIZANUR RAHMAN, FIROZA BEGUM, Individually, = and as=20 next friend of JAKIR HOSSAIN, MOHAMMAD ALAK MIR, Individually, and = as next=20 friend of ALAMGIR, SHAHALAM, ABDUL HAKIM, Individually, and as = next friend=20 of SEKU MIA, FOYEJUR KHATUN, FIROZA BEGUM, Individually, and as = next=20 friend of RUHMUT ALI, RINA, MORIAM, SALEHA, Individually, and as = next=20 friend of ABUL KASHEM, NOORJAHAN, NAZMA, RUBINA, RAHAM ALI, = HOSSAIN,=20 Individually, and as next friend of AMINA KHATUN, MD. NURU MIA,=20 Individually, and as next friend of MAJEDA BEGUM, HOSSAIN, = Individually,=20 and as next friend of SAHARA KHATUN, MD. NURU MIA, Individually, = and as=20 next friend of AMINA, HOSSAIN, Individually, and as next friend of = ALIA=20 KHATUN, RUBEL, MD. NURU MIA, Individually, and as next friend of = ASHEA,=20 HOSSAIN, Individually, and as next friend of JEWEL, FAIZUNNESA,=20 Individually, and as next friend of FAIZUNNESA, MD. NURU MIA,=20 Individually, and as next friend of ALI AHMED, HELENA BEGUM, = Individually,=20 and as next friend of ABDUL RASHID, ZAKIR HOSSAIN, MONIR HOSSAIN, = AMIN=20 HOSSAIN, MD. NURU MIA, Individually, and as next friend of MD. = MIAR UDDIN,=20 HELENA BEGUM, Individually, and as next friend of RASHIDA, MD. = NURU MIA,=20 Individually, and as next friend of AYESHA BEGUM, MANIK MIA, = Individually,=20 and as next friend of SURAYA BEGUM, MASUD, SHARMI, SONIA, MASUM, = SHARITI,=20 DILBER NESA, Individually, and as next friend of ABDUL SAMAD, = ROBIUL,=20 SUFIA KHATUN, KAMRUL, SANORA KHATUN, Individually, and as next = friend of=20 ALAUDDIN MIA, SALIM, KAJOL MIA, JOSNA BEGUM, MUSLEM ALI, = Individually, and=20 as next friend of ASSIA, MOHAMMAD ALLAL MIA, Individually, and as = next=20 friend of MINUDDIN, ASHIA KHATUN, HAJARA BEGUM, Individually, and = as next=20 friend of ABDUL BARAK, SHUK ABDULLA, FARID MIA, HAMID, ATIA, = SHAHEEN,=20 SABINA, MD. ROJOB ALI, Individually, and as next friend of NASIMA = AKTER, I=20 DUTAN, JASMIN, AKTER, JAKIR HOSSAIN, Individually, and as next = friend of=20 RAZINA AKTER, TAMANNA AKTER, SHARMIN AKTER, MD. RAFIQUL ISLAM,=20 Individually, and as next friend of ROKEYA BEGUM, MD. TAJUL ISLAM, = SHERAJUL ISLAM, JAMAL UDDIN, ABU HANIF, ANOWARA BEGUM, MONOWARA = BEGUM,=20 HAZIRA KHATUN, NURJAHAN, RAHMAT ALI, Individually, and as next = friend of=20 DELOWARA BEGUM, NIMON MIA, SUMON MIA, ABU TAHER, Individually, and = as next=20 friend of HOSNEARA BEGUM, MINARA KHATUN, HABIBULLAH, RAZA MAHMUD,=20 Individually, and as next friend of MD. AZIM UDDIN, SALMA BEGUM, = FANNA,=20 MOJNU, DUJA, KHADIN, HASSAN UDDIN, Individually, and as next = friend of=20 JOSNA BEGUM, HANIFA, ALAM, HARUN, RAHIMA, AKIMA, HASINA, SALEHA, = ROZINA,=20 TASLIMA, HARUN UR RASHID, Individually, and as next friend of = ABDUL ALI,=20 SOKINA BEGUM, NAZRUL ISLAM, NUR UDDIN, NIZAM UDDIN, HELEN AKTER, = ANOWARA=20 BEGUM, ASMA AKTER, ASROFA, HASINA AKHTER, Individually, and as = next friend=20 of HASINA AKHTER, FARASH ALI, Individually, and as next friend of = ANWARA=20 B, ANWARA BEGUM, HOSHAIN, AMINA, GOLAPI, OLI MIA, SHAH ALAM, = SHAMIN, RIAZ=20 HOSSAIN, LIZA, NURJAHAN, Individually, and as next friend of = ROSHID MIA,=20 REHANA KHATUN, MD. MOKBUL HOSSAIN, Individually, and as next = friend of=20 LILA AKTER, RANI AKTER, IMAM UDDIN, Individually, and as next = friend of=20 SHAFI UDDIN, ROKEYA BEGUM, JOSHIM UDDIN, MOIN UDDIN, SUFIA, SUFIA, = HASINA,=20 SHAHINA, ALEYA, Individually, and as next friend of ALAL UDDIN, = ROJINA=20 KHATUN, SALIM, KAJOL, SAKIB, MD. ABDUR RAHMAN, Individually, and = as next=20 friend of JAHANARA BEGUM, KULSUM BEGUM, HANNAN RASHID, LUBNA, = HASAN,=20 FARIDA KHATUN, Individually, and as next friend of SHAHJAHAN MIA, = SHIRINA=20 KHATUN, SHAHANA KHATUN, IMRAN HOSSAIN, Individually, and as next = friend of=20 ABUL HOSSAIN, REHANA BEGUM, REBEKA BEGUM, HONUFA BEGUM, = Individually, and=20 as next friend of HOSNEARA, IQBAL HOSSAIN, MOHAMMAD ISMAIL, = Individually,=20 and as next friend of KHORSHEDA, BAKUL, HALIMA, SHELINA, MAMATAJ = MIA,=20 MASUMA, MOHAMMAD GOLAP MIA, Individually, and as next friend of = NUROON=20 NAHAR, NOOR MOHAMMAD, NOOR AHMED, KULSUM, BEAUTY, MD. SHARIFUL = ISLAM,=20 Individually, and as next friend of MOJAMMEL HUQ, SOBUJ, SHEWLY, = KAMAL=20 HOSSAIN, Individually, and as next friend of RAZA MIA, KAMLA = BEGUM, SHEWLY=20 AKTER, ROJINA, SHOFIQ, MD. MOTIN, Individually, and as next friend = of AROB=20 ALI, RABEYA, DOLON MIA, BABU, MOSTAFA, MASRUMA, ABU HANIF, = Individually,=20 and as next friend of AYESHA AKTER, MAHBUBUL ALAM, MOHIBUR RAHMAN, = BURHAN=20 UDDIN, FARUK MIA, Individually, and as next friend of AFROZA, = HOSSAIN,=20 KHADIZA, AL-AMIN, ABDUL KHALEK, Individually, and as next friend = of=20 RAMJANI BEGUM, SUJON, IBRAHIM, NARGIS, FARIDA, KAMAL HOSSAIN,=20 Individually, and as next friend of ABDUL MALEK, ASIFA, NAZMA, = KARINA,=20 JAYNAL, NAZIR HOSSAIN, AZIR MIA, JOSNA, MOHAMMAD SHAHALAM, = Individually,=20 and as next friend of MANZINA AKTER, SHAJUL, MD. SHEHAB UDDIN,=20 Individually, and as next friend of ABDUL JALIL, HAZIRA KHATUN, = JOINAL,=20 KAMAL, SHARIFA, ABDUL MOJED, Individually, and as next friend of = RASHEDA,=20 MOJIDA, MAJEDA, RAMJAN, MODHU, SUKUR ALI, Individually, and as = next friend=20 of MONOWARA BEGUM, MOHAMMAD ALI, AHAMMED ALI, IDRIS ALI, UNUS ALI, = KULSUM=20 ALI, MINARA AKTER, Individually, and as next friend of NOBI = HOSSAIN, PAVEL=20 AHMED, RUBEL, MOHAMMAD RAFIQ, Individually, and as next friend of = JAHANARA=20 KHATUN, JAKIR HOSSAIN, MOKTER HOSSAIN, AKTER HOSSAIN, RAHIMA = KHATUN,=20 MOSLEM UDDIN, Individually, and as next friend of SOKHINA, RASEL, = SHARMIN,=20 SIMA, ABDUL KADER, Individually, and as next friend of RUMA = AKHTER,=20 KOHINUR AKHTER, SHURUJ MIA, Individually, and as next friend of = ALEKHA=20 BEGUM, IDRIS MIA, ZAKIR HOSSAIN, SHAHANA BEGUM, REKHA, SALMA, = KULSUM,=20 GULSHAN HOSSAIN, Individually, and as next friend of TAMIZ UDDIN, = JULEKHA=20 KHATUN, ROZINA, ASAD, AMBIA, SHILPI, JAMILA KHATUN, Individually, = and as=20 next friend of SHAFIQ UDDIN, ZOHUR, MUSLIM, MONI, JOHURA KHATUN,=20 Individually, and as next friend of JOHURA KHATUN, FAZLUL HUQ,=20 Individually, and as next friend of MAIN, MAIN UDDIN, FATEMA, = MANZINA,=20 MAHMUDA, MONIRA, ASMA AKHTER, Individually, and as next friend of = AMIN=20 MIA, ARIFUL ISLAM, SHARMIN AKHTER, KHUDEJA BEGUM, Individually, = and as=20 next friend of MD. MANIK, MD. MANIK MIA, MORJINA AKTER, ABDUL = BASIT,=20 Individually, and as next friend of RAHIMA, EMON, RUKSANA, = RUKSHANA,=20 MUNTAJ ALI, Individually, and as next friend of MUSLIM UDDIN, = RAHIMA=20 BEGUM, RAJU MIA, KAJAL, SALMA, JOSNA, CHAN MIA, Individually, and = as next=20 friend of AMBIA, UKESME, MUKLES, JAHIDA KHATUN, MANNAN MIA, ZIAUR = RAHMAN,=20 Individually, and as next friend of NASIMA AKHTER, NAZRUL ISLAM, = KHALILUR,=20 HASINA AKTER, ROZINA AKTER, MOHAMMAD HABIBULLAH, Individually, and = as next=20 friend of ASHRABENNESA, MOHAMMAD ZHAHIDULLAH, MIZAN, PARVIN, MD. = NUR=20 MOHAMMAD, Individually, and as next friend of SHOFER ALI, HOZRAT = ALI,=20 AMINA, MOSHARROF HOSSAIN, Individually, and as next friend of = SHAMIMA,=20 SHORNALI, MUSLIM, FULMALA, FULLMALA, TAJU MIA, Individually, and = as next=20 friend of NOOR JAHAN, RUPBAN, ROKEYA BEGUM, Individually, and as = next=20 friend of SHAMSUL HUQ, JAHIRUL HUQ, ENAMUL HUQ, MAHAMUDUL ALAM,=20 Individually, and as next friend of JAHANARA BEGUM, HABIBUR, = AL-AMIN,=20 RAKIBUN, HAMIDA, SHARMIN AKHTER, JULEKHA AKTER, Individually, and = as next=20 friend of DULAL MIA, DULAL MIA, MORIAM AKTER, SHARIF, SHAHARA = KHATUN,=20 Individually, and as next friend of MAHMUD ALI, JORINA BEGUM, = MAJIDA,=20 Individually, and as next friend of AMIN UDDIN, RAHIMA, NAJMA = AKTER,=20 Individually, and as next friend of ASAD MIA, MOSLEMA, SHAHID, = SAMSUN=20 NAHAR BEGUM, Individually, and as next friend of NOOR MOHAMMAD, = ABU KALAM,=20 MORIAM BEGUM, Individually, and as next friend of SHOHAG MIA, = ENNAS ALI,=20 FARIDA, ABDUL BARIK, Individually, and as next friend of = MARIUMNESA, JOSNA=20 BEGUM, RAFIQUL ISLAM, MD. NURUL ISLAM, Individually, and as next = friend of=20 HOSNEARA BEGUM, SHAFIQUL ISLAM, TANIE, TAKMINA, NAZRUL ISLAM,=20 Individually, and as next friend of ABUL HOSSAIN, RABEYA BEGUM, = NOOR=20 MOHAMMAD, RAHIMA, ASMA, JAHARA KHATUN, Individually, and as next = friend of=20 HAJARA, OSMAN GONI, Individually, and as next friend of KOHINUR = AKTER,=20 MORIAM AKTER, RUKSHANA, ALA UDDIN, Individually, and as next = friend of=20 SANOWARA KHATUN, ALEYA KHATUN, SALIM, KAJOL, RESHMA, SAKIB, = ROJINA, IDRIS=20 ALI, Individually, and as next friend of SHAFIA KHATUN, YASMIN, = TAMANNA,=20 ABDUL MANNAF, Individually, and as next friend of FULBANU, RAMJAN, = SUBOL,=20 AL-AMIN, SHAHID, FATEMA, NAZMA, ABDUR RAHIM, Individually, and as = next=20 friend of HAMIDA BEGUM, SHAHNUR, SHAHANAZ, ABDUL RAHIM, = Individually, and=20 as next friend of MONTAJ, NURJAHAN, AMINA KHATUN, FATEMA, BOBITA, = NAZRUL,=20 SUMON, MOHAMMAD SAMSUDDIN, Individually, and as next friend of = SAKHA=20 BEGUM, BIPLOB MIA, RUBEL MIA, AKHLIMA BEGUM, ATAUR ALI, = Individually, and=20 as next friend of WAZIFA KHATUN, MURAD, MD. ASHRAF UDDIN, = Individually,=20 and as next friend of SHERINA KHATUN, AYESHA, MALU, NAJMA, ABDUL = MANNAN,=20 Individually, and as next friend of ANOWARA BEGUM, KHOKON, SADIA, = LAKMOT=20 ALI, Individually, and as next friend of HODEJA BEGUM, AL-AMIN, = ZAYEN,=20 ZAYEM, MD.SULTAN, Individually, and as next friend of ROMIJA = KHATUN, MOROM=20 ALI, SHOPNA KHATUN, KHADEJA, SANIA, KAMAL HOSSAIN, Individually, = and as=20 next friend of JAMAL HOSSAIN, SHAHBUDDIN, SHARIFA KHATUN, HAZERA = BEGUM,=20 ABDUL JALIL, MOSAMMAT LALILA, Individually, and as next friend of = SURAVI=20 AKHTER, SULTAN ISLAM, Individually, and as next friend of AMINA = BEGUM,=20 AYESHA BEGUM, JASMIN, TAHERA, KASHEM, FAZILAT, HALIM MIA, = Individually,=20 and as next friend of HARESA BEGUM, ARIFA BEGUM, SHIPA AKHTER, = SUKURI=20 BEGUM, Individually, and as next friend of ABDUL JABBAR, MOSAMMAT = RINA=20 AKTER, MD. TAZEL MIA, Individually, and as next friend of TASLIMA = BEGUM,=20 UMME KULSUM, AFIA KHATUN, Individually, and as next friend of = TAZEUDDIN,=20 NASIMA KHATUN, NAJMA KHATUN, DOLLY KHATUN, RABIA BEGUM, = Individually, and=20 as next friend of ABUL HOSSAIN, NUR MOHAMMAD, NAZRUL ISLAM, RAHIMA = BEGUM,=20 ASMA BEGUM, SAJEDA, Individually, and as next friend of ANWAR = HOSSAIN,=20 SAIFUL ISLAM, HAZRAT ALI, Individually, and as next friend of = SHANA=20 AKHTER, HAZERA KHATUN, RUSSELL NOOR, ABDUL RAHMAN, Individually, = and as=20 next friend of AMINA KHATUN, BOGDAL MAMUN, RINA BEGUM, = Individually, and=20 as next friend of DULAL, UKIL, IBRAHIM, ISMAIL, NAIMA, KHURSHIDA, = MOHAMMAD=20 BADSAH MIA, Individually, and as next friend of AMINA KHATUN, = HOZILA=20 AKHTER SHEULI, ABDULLAH AL- MAMUN, HASSINA AKTER, Individually, = and as=20 next friend of NASIR UDDIN, HAMIDA, NAJMA, POLLY, BEDON BIBI,=20 Individually, and as next friend of SURUZ ALI, AKHTER MIA, RIPON = MIA,=20 ABDUL KHALIQ, Individually, and as next friend of OZUFA KHATUN, = ZAKIR=20 HOSSAIN, JAMAL HOSSAIN, KAMAL HOSSAIN, IMAN HOSSAIN, ASIA KHATUN, = KHODEJA=20 KHATUN, ASHIA KHATUN, Individually, and as next friend of ABDUL = MUTALIB,=20 KIBER HOSSAIN, ARIF HOSSAIN, SHARIF HOSSAIN, MARUF HOSSAIN, = SABINA,=20 SULTANA, MINARA, ABUL KASHEM, Individually, and as next friend of = NAIMA,=20 KOLIFA, HAZERA KHATUN, REHANARA, SHAHENARA, MONIRA, MIZANUR = RAHMAN,=20 Individually, and as next friend of ANOWARA BEGUM, ABDUR RASHID, = RAZIA,=20 SAMIA AKHTER, AL-AMIN, SHAHILA KHATUN, Individually, and as next = friend of=20 ABDUL RAZZAK, SOJIB, SHARMIN, SHAKIL AHMED, ABDUL KARIM, = Individually, and=20 as next friend of ROKIA KHATUN, LITON MIA, ASMINA KHATUN, SUFIA,=20 Individually, and as next friend of YUSUF ALI, FARUK, KABIR MIA, = ASMA=20 KHATUN, NAZMA AKHTER, RUMA, HAROON-UR RASHID, Individually, and as = next=20 friend of AYESHA KHATUN, HOSSAIN MIA, SUFIA BEGUM, Individually, = and as=20 next friend of MUSLIM UDDIN, ROKIB MIA, MUSLIMA, SAKIB MIA, SUMI = AKHTER,=20 Individually, and as next friend of PARUL AKHTER, MODINA KHATUN,=20 Individually, and as next friend of TAJUL ISLAM, MUBARAK MIA, = MUSARRAF=20 MIA, ROKEYA BEGUM, RANI BEGUM, NAYAN MIA, LAILEE BEGUM, = Individually, and=20 as next friend of ABDUL MALEK, SAMSUN NAHAR, NURUNAHAR, HALIMA, = AL-AMIN,=20 LIPON, MIRAJUL, NOORJAHAN, Individually, and as next friend of = HASEN MIA,=20 JULIA BEGUM, MOUSUMI AKHTER, SHOHAG MIA, TAMIM MIA, RIDOY MIA, = NASIMA=20 KHATUN, Individually, and as next friend of RAZAB ALI, JASMIN, = ABUL=20 KASHEM, Individually, and as next friend of REKHA BEGUM, KADRIA = SULTANA,=20 MAHABUB, NURUN NAHAR, Individually, and as next friend of ABDUL = BATEN,=20 TAZUL ISLAM, SHAHIDUL ISLAM, ASMA AKHTER, HASINA AKHTER, ABUL = KAMAL,=20 Individually, and as next friend of ALEYA KHATUN, YASMIN AKHTER, = SHEULI=20 AKHTER, RUBEL MIA, BOKUL AKHTER, ASAD MIA, Individually, and as = next=20 friend of JULASA KHATUN, RUNA, NABI, SHOFOR ALI, ASFIA KHATUN,=20 Individually, and as next friend of MAMUN AHMED, ZINIA, HOSNE- ARA = BEGUM,=20 Individually, and as next friend of MOHAMMAD RAMJAN, MOHAMMAD = RAMZAN,=20 RUKHSANA AKHTER, REHANA AKHTER, Individually, and as next friend = of=20 HOSSAIN ALI, ABDUL KHALEQ, Individually, and as next friend of = MOMENA=20 BEGUM, MOKHLES MIA, EKHLAS MIA, ELIAS MIA, PARVIN AKHTER, SHAFIQUL = ISLAM,=20 Individually, and as next friend of MARZI AKHTER, RESHMI, ZAKIR = HOSSAIN,=20 Individually, and as next friend of RAFEZA AKHTER, TAMANNA AKHTER, = SHARMIN=20 AKHTER, MEHER-UN-NESSA, Individually, and as next friend of = SHIRINA BEGUM,=20 MOHAMMAD ALAL MIA, Individually, and as next friend of ASMA = KHATUN, ABDUL=20 MATIN, Individually, and as next friend of LAAL BANU, ANOWAR, = ABDUR RAHIM,=20 RAHMAT ALI, Individually, and as next friend of KHODEZA KHATUN, = POPI=20 AKHTER, SHARMI AKHTER, RAMIZ UDDIN, Individually, and as next = friend of=20 ZAIDA KHATUN, AKRAMUL ISLAM AYON, RUKHSANA AHMED UMA, BAZLUL = MAMUN,=20 Individually, and as next friend of MOUSUMI AKHTER.



1. A list of all appellants is attached as = an appendix=20 to this opinion.=20

2. After the Bangladesh Residents filed a = notice of=20 appeal from the interlocutory order granting the Niko Entities' = special=20 appearance, the trial court, on the Bangladesh Residents' motion, = severed=20 the Niko Entities from the underlying case, thus rendering a final = judgment. The Bangladesh Residents filed an "Amended Notice of = Appeal,"=20 which we treat as a notice of appeal from the final judgment. As a = matter=20 of internal procedure, we consider the appeal from the final = judgment=20 under the cause number originally assigned to the interlocutory = appeal.=20

3. Qasim Sharif, a Texas resident, was = president of=20 Niko Bangladesh and attorney-in-fact for both Niko Resources and = Niko=20 Bangladesh.=20

4. U.S. Const. amend. XIV, =A7 1.=20

5. See Tex. Civ. Prac. & Rem. = Code Ann. =A7=20 17.042 (Vernon 1997).=20

6. The "releases" stated,


I the Undersigned [Name] Of = Tengra Tilla=20 Village come to Know that some falsifier filed up a suits from = come=20 pensation from niko using my name to Houston Tk. [sic] 77008 (suit = Ref=20 1225 north loop West suit-810 Ad in America TK. [sic] Houston = 4-24-4) due=20 to blow out of January 07.2005 and Jun 24.2005 at Chhatak Gas = field tengra=20 tilla a under Sunamgonj District Bangladesh quite fase. I am = illiterate=20 and in fact I never asked any body to create and file any suit on = the=20 above cited in this regand if the case is started . I strongly = deny it and=20 unwill to continue it.=20

7. A party also enters a general appearance = and waives=20 a special appearance if it "invokes the judgment of the court on = any=20 question other than the court's jurisdiction" or "seeks = affirmative action=20 from the court." Exito Elecs. Co. v. Trejo, 142 S.W.3d = 302, 304=20 (Tex. 2004) (citing Dawson-Austin v. Austin, 968 S.W.2d = 319, 322=20 (Tex. 1998)). These situations do not apply.

8. Tex. R. Civ. P. 11.=20

9. Having determined that the Niko Entities = did not=20 have sufficient minimum contacts with Texas to support = jurisdiction, we=20 need not address the Bangladesh Residents' additional contention = that the=20 exercise of jurisdiction would comport with traditional notions of = fair=20 play and substantial justice. See Preussag Aktiengesellschaft = v.=20 Coleman, 16 S.W.3d 110, 126 (Tex. App.--Houston [1st Dist.] = 2000,=20 pet. dism'd w.o.j.)=20

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