*1 that the trial court Because we conclude by granting Youngsoft’s motions for
erred verdict, and directed
summary judgment development and out-
thereby shaping case, the proper
come of the we conclude appeal of this is to reverse the
disposition
trial court’s and remand this proceed- to the trial court for further
case
ings. CORPORATION,
CALABRIAN
Appellant
ALLIANCE SPECIALTY
CHEMICALS, INC.,
Appellee.
No. 14-12-00821-CV. Texas, Appeals
Court of (14th Dist.).
Houston
Nov.
Background Corpora- Appellant/plaintiff Calabrian tion, corporation a Delaware with *3 Texas, in is a principal place of business of sulfur dioxide and sulfur de- producer in variety products rivatives used and industries. entered into a Calabrian Agreement Corpora- License with Noxso majority September tion in 1995. The negotiations leading Agreement to the In Agreement, occurred in Texas. Noxso a license to use granted Calabrian and certain technical information sulfur in technology developed dioxide Texas to operate plant and maintain a that Noxso planned to build in Tennessee. Noxso separate agreement entered into a with Corporation Olin under which Olin would operate plant. part As of the Li- Agreement, permitted cense Calabrian Olin, subject Noxso to disclose to to cer- requirements, tain sufficient technical in- satisfactory operation formation allow maintenance plant. and of the Under the Harris, Lee, Stephen Beck H. Lauren Agreement, ongoing Noxso had confiden- Houston, Appellant. for Texas, tiality obligations to in Calabrian payments and Noxso sent to Calabrian Benoit, Houston, Appel- Brent Alan for plant, Noxso’s which Texas. was mod- lee. plant, eled on Calabrian’s Texas was con- using structed in Tennessee equipment Panel consists of Chief Justice FROST components and fabricated Texas. and Justices CHRISTOPHER later, years Two Noxso was BUSBY. involuntary pro- forced into an bankruptcy ceeding. permission With the of the bank- OPINION court, ruptcy assigned rights Noxso obligations under the License BUSBY, J. BRETT Justice. Republic Corpo- to an affiliate of Financial In interlocutory appeal, this a Texas S02, ration named “RFC Inc.” Noxso also challenges manufacturer the trial court’s Inc., S02, sold the Plant to which RFC granting order a non-resident defendant’s Specialty later re-named Alliance Chemi- special appearance. We reverse and re- cals, Inc., corporation a Delaware with its mand because the non-resident defendant principal place of business in Tennessee. collaterally estopped relitigating is from Alliance is one of the defendants below and personal jurisdiction. appellee interlocutory appeal.1 judicially Apparently, change 1. Alliance has admitted that it was Alliance. this name in- previously merger known RFC as and that its volved a or consolidation because the SO2 changed S02, S02, Wyo- name was from RFC Inc. to record reflects that RFC Inc. was a the assign- sued Re- based on forum contacts of February or. in state district court and Alliance public Case”). (“the County Cal- Jefferson opposed special appear- declaratory regarding sought relief abrian ance, arguing among things other that the obligations parties of the rights involved the same License Case Agreement, including under the Agreement, parties, the same and the obligations as to Alliance’s declarations arguments personal juris- same related to technology confidential and to keep the diction such that Alliance collaterally payments make disclosures and Calabri- estopped avoiding personal jurisdic- to feder- an. The 1998 Case was removed *4 tion in Texas. Calabrian attached docu- court, Alliance filed a motion al where from the in support ments 1998 Case of its under contesting personal jurisdiction arguments. 12(b)(2). Rule of Procedure Federal Civil Following discovery disputes, a series of district court denied this mo- The federal granted the trial court heard and Alli- tion, a litigation proceeded with final and special appearance. ance’s Calabrian filed
judgment rendered March 2000. interlocutory appeal this challenging the 2011, filed this In November granting special ap- trial court’s order Alliance and Olin state against lawsuit and, pearance alternatively, contending the (“the 2011 County district court in Harris denying trial court erred in its motion for Case”), as- seeking declaratory relief and hearing a continuance of the on the special and claims for breach of contract serting appearance. of trade secrets. Calab- misappropriation primary added as a defendant its rian later Analysis (US), competitor, Logistics Chemtrade issue, In its first Calabrian asserts that Inc., purchased had the shares of which in granting the trial court erred Alliance’s alleged, among other Alliance.2 Calabrian special appearance. ap- To resolve this things, that Alliance the License violated only we need address peal, Agreement by disclosing confidential infor- argument collaterally that Alliance is es- by refusing and mation to Chemtrade challenging from the federal dis- topped plant years to Olin ten after transfer subject it ruling trict court’s completed. construction was in Texas. special appearance Alliance filed a Case, principal categories There are two asserting 2011 that the exercise of (also preclusion of claim preclusion: over it a Texas judicata); pre known as res and issue process court would violate due because its (also estoppel). clusion known as collateral only connection with Texas is as Noxso’s Corp., Barr Trust v. Resolution 837 assignee under the License (Tex.1992). 627, 628 These doc argued years Alliance that in the since the S.W.2d bringing such that trines serve the vital functions changed 1998 the law had end, stability litigation maintaining to an assignee a non-resident of a contract is no decisions, avoiding court inconsistent re- longer parties change are ming corporation name 2. Neither Olin nor Chemtrade before the corporation after the name interlocutory appeal. and a Delaware reference, change. we will refer For ease of Specialty Inc. and Alliance SO2, to both RFC Chemicals, Inc. as "Alliance.” 158
suits, were essential to the judicial economy. Id. facts promoting and Henderson, action; 629; parties v. 688 S.W.2d first were cast Jeanes (Tex.1985). 100, preclusion Claim in the first action. 105 as adversaries See defenses, Kenedy are affirmative & Marie Stella Mem’l preclusion issue John G. Found, Dewhurst, 268, asserting either defense has 90 288 party and the S.W.3d (Tex.2002); Quanaim v. pleading proving the burden of Frasco Rest. & Co., Grocery In re H.E. Butt 44 Catering, (Tex.App. elements. S.W.3d denied).3 (Tex.App.-Houston pet. [14th S.W.3d Houston [14th Dist.] established, orig. proceeding). If elements are then Dist.] these precluded litigating Alliance is from relies on the doctrine Barr, again. issue See at 628. S.W.2d preclusion, or issue of collateral estoppel applies is a Whether prevents relitigating which an question of law. See id.4 previously litigated that it and lost. issue dispute Alliance does that Calabrian Elec., Entm’t, Inc. v. Quinney See Rondos elements, proved arguing these instead (Tex.1999) Inc., (per *5 curiam). estoppel apply that collateral does not be- jurisdiction Personal is an issue changed. law has cause Texas We address precluded from relit that a can be argument in Part II Alliance’s below. Our Bilek, igating. E.g., v. 362 Corea S.W.3d however, dissenting colleague argues, that 2012, 820, (Tex.App.-Amarillo 825-26 no prove failed to Calabrian elements pet.); Reynolds, Fretz v. No. 04-03-00854- estoppel its collateral defense. dis-We CV, 2803201, (Tex.App.-San 2004 at *1 WL (mem. agree following for the 8, denied) reasons. 2004, pet. Antonio Dec. Desai, 115, op.); Nguyen v. 132 S.W.3d (Tex.App.-Houston
118-19 [14th Dist.] collaterally estopped I. Alliance pet.); no v. see also Declcert Wacho relitigating the issue whether Sens., via Student Fin. 818- 963 F.2d subject jurisdiction personal it is to (5th Cir.1992). 19 & n. 5 arising in Texas on claims from the prevail estop
To
on its collateral
defense,
pel
responding
special ap
Calabrian must establish the
to the
(1)
following:
sought
litigat
pearance,
following
the facts
to be
attached the
in
fully
ed
the second action were
documents relevant to the 1998 Case: Cal
action;
fairly litigated in the first
live pleading,
response
abrian’s
ond)
a,
(1982),
dissenting colleague argues
Judgments
g
§
3. Our
we should
13 & cmts.
Boswell, O’Toole,
apply multiple
Dyke
step
factors at the second
cited in Van
v.
Davis &
(Tex.1985);
Pickering,
determine whether the
697 S.W.2d
385
federal district court’s
Boyer,
see also Mower v.
562
decision on
was ade-
1991)
(Tex.
firm,
(holding interlocutory partial sum-
quately deliberated and
and contends
factors).
mary judgment
satisfy
did not
that Calabrian offered insufficient evidence of
Post,
disagree.
these factors.
at 165-68. We
case,
below,
explained
In this
as
the record
Although
jurisdiction
personal
ruling
court,
judgment.
there
a final
shows
was
Accord-
the 1998 Case was made
a federal
ingly,
improper
apply
it would be
the fac-
Supreme
the Texas
Court has determined that
dissent,
upon by
tors relied
which are
federal law and Texas law are the same re-
Thus,
designed
adjudica-
garding
estoppel.
to determine whether an
we need not
accompanied by
judg-
analyze
precedent.
tion that is not
a final
this issue under federal
enough
given
Kenedy
ment is nevertheless firm
to be
& Marie
See John G.
Stella
Mem’l
Found.,
(Sec-
issue-preclusive effect. See Restatement
159
jurisdiction.
Washington,
for lack of
Int’l Shoe Co.
Alliance’s motion to dismiss
l
310, 319,
with the Alliance does not And in Agreement. involve the License in both the dispute that Calabrian’s claims cases, on the both Calabrian has relied and this case arise from the Case person- as a basis for same Texas contacts jurisdiction al over Alliance: its contacts Second, Agree- Texas in connection with the the issue of with judg- the ment. those contacts over Alliance was essential Whether over Alliance specific personal jurisdiction was entered ment the 1998 Case—which fairly litigated according fully in 2000 to the affidavit —because in Texas was and Accordingly, we conclude may judgment render a that the 1998 Case. a court as- among the the claims a over which it has no that differences party binds of opposing preclusion proof the offered no cases do not alter serted in the two change). in a manner analysis specific jurisdiction estoppel inapplica-
that renders collateral
that
argues
The dissent also
ble.
provide
failed to
a record suffi
of time between
Regarding
lapse
each element of its collat
cient to establish
Cases,
recog-
we have
the 1998 and 2011
a matter of law.
estoppel
eral
defense as
judgment in one suit will not
nized that “a
by the
disagree.
We
As the cases cited
operate
judicata
subsequent
as res
show,
typically require
courts
that
dissent
where,
interval,
facts have
suit
in the
in
party advocating
facts have occurred
changed, or new
pleadings
judg
at least the
troduce
may
legal rights
which
alter the
or rela-
prior
case.6 The amount of
ment from
parties.”
tions of the
Hernandez
Del
required
evidence
to establish the defense
Inc.,
Int’l,
112, 116
Ray Chem.
56 S.W.3d
case,
vary
will
from case to
however. The
2001, no
(Tex.App.-Houston [14th Dist.]
question
simply
whether the record suf
pet.);
Nguyen, 132
at
see also
S.W.3d
ficiently
court
notified the trial
is
contends,
party
118-19. But neither
prior
sues decided
case.7
reflect,
the record does not
that
rele-
Alli-
that the record did so here.
jurisdictional
regarding
vant
facts
We conclude
above,
its
provided
ance’s contacts with Texas
connection As discussed
changed
pleading,
briefing
personal juris-
with the
have
live
on
diction,
or-
intervening years.5 Accordingly, we hold
federal district court’s
jurisdiction
Al-
ruling denying
that the district court’s
ders on
1998 Case.
per-
liance’s motion to dismiss for lack of
Calabrian did not include the
it
pre-
provide
sonal
in the 1998 Case
from the 1998
but
did
an
relitigation of
issue in
that
there
a final
stating
cludes
affidavit
Corea,
case.
(pre-
judgment.
See
Each
cites and discusses
cluding relitigation
this statement
from the affidavit in the
brief,
juris-
rejecting
appellate
issue and
contention that
fact section of its
and there
*7
contrary,
changed
dictional facts had
because
is no evidence to the
so we take
Houston,
E.g.,
City
5.The Restatement observes that the burden
No. 14-
Hudson v.
of
establishing
3995160,
change
0300565-CV,
(Tex.
of
a
in facts sufficient to
2005 WL
at *4
preclusion
6, 2005,
undermine a
defense should fall on
App.-Houston
Jan.
no
[14th Dist.]
defense,
party opposing
at least in
(mem.
pet.)
City
op.); Cuellar v.
San Anto-
of
(Second)
some cases. See Restatement
of
nio,
250,
(Tex.App.-San
821 S.W.2d
256
Anto-
7;
Judgments § 27 cmt. c & illus.
see also
1991,
denied).
nio
writ
Corea,
(placing
161 arising final as true. of cause of action after the first judgment of the the existence 38.1(g). judgment). The rationale for this rule is Tex.R.App. P. See that a cannot affect judgment substantive (but Alliance) faults The dissent not Cal- rights arising and duties after that judg- to include in the record failing abrian for id.; Hernandez, ment. See 56 S.W.3d at documents from the 1998 certain other (Second) 116; see also Restatement jurisdiction-related as Alliance’s such 28(2)(b) § Judgments & cmt. c the federal district court’s find- filings and general to (recognizing exception rule regard- conclusions of law ings of fact and preclusion issue when there is an “inter- jurisdiction. But there is no indication ing vening change applicable legal con- insufficient that the record we do have was “preclusion text” such that would result in jurisdictional trial court of the notify manifestly a inequitable administration of issue decided Case. Calabrian’s laws”). rationale, Given this one court briefing argued in that case jurisdictional applies only has observed that “Marino if specific personal Alliance was there a ... change is law that arising on claims Texas creates substantive ex- rights did not Agreement, the License and there is judgment.” ist until after the first Besing the issue decided there no evidence that 182, Eykel, v. Vanden S.W.2d 184-85 Nor has Alliance dis- anything else.8 denied); (Tex.App.-Dallas writ see puted accuracy complained the record’s or Co., also Mroz U.S. Fire Ins. that it is insufficient to decide Calabrian’s (Tex.App.-Houston S.W.2d [14th this rec- defense.9 On denied) (applying excep- writ Dist.] ord, therefore, we conclude that Calabrian recognized tion where Texas a new cause established each element of its defense as judgment); Hilltop of action after the first a matter of law. Temple, Cnty. Inc. v. Baptist Williamson (Tex. Dist., Appraisal a II. Alliance has not demonstrated denied) (distinguish- App.-Austin pet. change in Texas law sufficient ing “Hilltop Marino because is not assert- estoppel. avoid collateral right a new claim or that was created part, For its Alliance relies on the subsequent judgment]”). first [the in a preclusion rule that a defense Alliance asserts that an “interven subsequent involving suit the same issue ing change” “if decisional law has parties between the same there has Texas personal ju court’s change in ... the decisional law rendered the district been errone ruling risdiction in the 1998 Case between the first second *8 ous, making estoppel inapplica & suit.” Marino v. State Farm Fire Cas. (Tex.1990) Co., 948, In Alliance particular, Ins. 787 949-50 ble in this case. S.W.2d personal for judicata contends that the “sole basis (holding res did bar assertion prior offering complete record of the case speculates 8. The that the federal dis- dissent may log- supporting trict court have found Neither law nor as evidence. jurisdictional 1998 Case because Alliance’s compels practice. ic such a wasteful challenge untimely, may was or that Alliance re-urged for reconsideration have its motion Omokaro, Whitemyer v. No. 05-01- 9. See jurisdictional ruling. But there of the court's 00780-CV, 1981367, WL at *6 n. 19 2002 suppose the record that is no reason to 29, 2002, denied) Aug. pet. (Tex.App.-Dallas things happened. either of those If this sort Hearn, (not designated publication); for 2000 speculation were sufficient to defeat a col- 977372, WL at *4. defense, party urging lateral then the only hope prevail by could defense 162 Denckla, v. (1984); Hanson in the 1998 Case was Noxso’s 404 357 U.S.
jurisdiction” 1228, Texas, 235, 253, 2 points and it to two 78 S.Ct. L.Ed.2d 1283 contacts with (1958) (“The controlling decisional au- activity cases as “new unilateral of those theory that thority” repudiating relationship these claim with a who some nonres- imputed can be to Alliance as satisfy require- contacts defendant cannot ident Leasing Old Kent assignee: State.”); Noxso’s ment of contact with the forum McEwan, Assurance, v. 220, Corp. Sens. 38 S.W.3d Malaysia British Ltd. v. El 2001, Inc., (Tex.App.-Houston 231 919, [14th Dist.] Reyco, Paso 921 830 S.W.2d v. Magnolia Knight Gas Co. pet.), (Tex.1992) curiam) no (per (holding assign- (Tex. 684, Equip. Mfg., 994 S.W.2d 691-92 strengthen ment did not claim of personal 1998, overruled pet.), Antonio no App.-San jurisdiction). Although both Old Kent Belgi- BMC grounds on other Magnolia Gas recognized assign- that an Software Marchand, um, 789, N.V. v. 83 S.W.3d 794 or’s contacts with a forum state could not (Tex.2002).10 & n. 1 imputed assignee purposes to the for be jurisdiction, personal each did so based on Magnolia Kent nor Old Gas Neither See Old Kent pre-1998 principles. these change in demonstrate a decisional law Leasing Corp., 38 231; Sens. S.W.3d the Marino trigger exception sufficient to Co., Magnolia Gas 994 at 691-92. S.W.2d estoppel. to collateral Pre-1998 decisions Magnolia Kent Old Gas Because sim- established that the defendant’s forum ply applied existing juris- law on contacts “must have resulted from [its] diction, neither created new substantive purposeful conduct and not the unilateral rights or duties that did not exist at the or others.” Guard- activity plaintiff of the Assurance, Accordingly, time of the 1998 Case. nei- Royal ian Exch. Ltd. En- v. P.L.C., 223, ther meets the glish Clays, China case standard discussed 815 S.W.2d (Tex.1991); Helicópteros see also Na- demonstrating change above for a deci- Colombia, Hall, cionales de S.A. v. sional law sufficient to excep- warrant an estoppel.11 U.S. 104 S.Ct. 80 L.Ed.2d tion to collateral arising 10. The record does not Alliance's as- as based on its own forum contacts imputed sertion that Noxso’s contacts were out of the License personal jurisdiction the sole basis for over Alliance in the 1998 The Case. one-sentence addition, Magnolia both Old Kent and court, district order from federal which factually distinguishable Gas are from this denied Alliance's motion to dismiss for lack of Collection, Type case. See Am. Culture Inc. v. personal jurisdiction, specify does not the ba- Coleman, (Tex.2002) (not- sis for its decision that is assessed on a provides The order that the exists. decision basis). case-by-case Neither case involved a "findings was on of fact and based conclu- long-term agreement continuing with obli- hearing July sions of law” made at a held on gations company a between Texas and a non- 24, 1998, the same date the order en- assignee. Burger King Corp. resident Cf. appellate tered. The record contains neither Rudzewicz, 462, 478-82, 471 U.S. 105 S.Ct. hearing transcript of the held on that date (1985) (analyzing juris- L.Ed.2d findings nor of fact conclusions of law or long-term dictional effect of franchise con- Thus, jurisdictional relevant to the decision. continuing obligations). tract with In Old *9 contrary to Alliance’s contention that the fed- Kent, company we concluded that an Illinois "wholly eral court’s decision is inconsistent” agreement computer that assumed an to lease Gas, Magnolia with Old Kent and the record equipment company to a California could not does not reflect how the court arrived at its Texas; agreement Moreover, be sued on the the fact although decision. we need not company that a Texas that was not a to reach the merits of the issue, agreement supplied argued equipment had we note that Calabrian has Alli- support personal jurisdic- ance is in Tex- insufficient to ruling involving that it would tion in a 1998 lawsuit dif- argues Alliance also collaterally if “grossly unfair” it were ferent claims. The trial court did not err be jurisdiction, but estopped challenging plaintiff present from because did authority to legal it offers no reasons or sufficient evidence meet its burden of recognize that argument. establishing estoppel ap- its We that collateral estoppel analysis plies; does involve personal-jurisdiction a collateral is- of fairness that are not en actually litigated considerations sue in the 1998 lawsuit is opportuni the “full and fair compassed by personal-jurisdiction not identical to the Seros., Food Inc. v. ty” inquiry. Sysco today’s See issue in reversing case. Instead of (Tex.1995). Tmpnell, 890 S.W.2d and remanding estop- based on collateral of col application pel, do not consider this court should affirm the trial We unfair, granting lateral in this case to be court’s order the non-resident de- however, given that Alliance has defended special appearance. fendant’s litigation previously involving in Texas par
same License and same Background Factual and PROCEDURAL Accordingly, ties. we hold that collateral appellanVplaintiff Calabrian in this case to bar Alli estoppel applies Corporation sued Alli- appellee/defendant personal jurisdiction.12 challenge ance’s Chemicals, ance Specialty Inc.1 the 60th Judicial District of Jefferson Court Coun- Conclusion (“the Case”). ty, Texas After the grant- the trial court’s order We reverse court, 1998 Case was removed to federal and re- special appearance Alliance’s contesting personal Alliance filed a motion proceedings. further mand for jurisdiction under Federal Rule of Civil 12(b)(2), Procedure which the federal dis- FROST, C.J., dissenting. trict court denied. FROST, KEM THOMPSON Chief later, in years More than eleven Novem- Justice, dissenting. ber Calabrian filed a lawsuit of Harris This court holds that the trial court 165th Judicial District Court Case”) (“the County, against by granting erred a non-resident defen- Texas Alliance Corporation. Olin special appearance dant’s because the non- defendant, later added a third Chemtrade collaterally estopped resident defendant is (US), petition Inc. In its live relitigating personal jurisdiction. Logistics made the follow- majority grounds holding upon The the 2011 personal-jurisdic- ing allegations: federal district court’s estoppel disposes of the Magnolia And in 12. Because collateral tion. 38 S.W.3d 231. Gas, lacked the court held that a Texas court jurisdictional question, reach Cal- we do not defen- over non-resident issue, challenges which abrian’s second obligation dants who had assumed the motion for continu- trial court’s denial of its cryogenic gas plant move an Oklahoma ance. company by a Texas to Arkansas. The owned carefully all contacts with court considered judicially admitted that it was 1. Alliance has assignor (including who Texas those of previously as RFC and that its known C02 originally plant) had contracted to move the changed C02, from RFC Inc. to name was they entirely "were inci- and concluded opinion C02, RFC Inc. and Alliance. In this purpose of the dental and immaterial to the Chemicals, Specialty Inc. are both Alliance instigated by and were not de- [the contract fendants], referred to as "Alliance.” assignor.” or their 994 S.W.2d at *10 (cid:127) (cid:127) access wrongfully gained its corporation with Chemtrade Virginia Olin is a to confidential informa- Calabrian’s in Mis- of business principal place acquisition tion before Chemtrade’s souri. Alliance. Li- Alliance violated the (cid:127) corpora- is a Delaware Chemtrade by disclosing Agreement cense Cal- place of busi- principal tion with its to abrian’s confidential information ness in Ohio. Chemtrade continues Chemtrade. (cid:127) Olin, with Noxso Cor- In its contract to have access to Calabrian’s sulfur any agreed relinquish to poration confi- technology dioxide and other ownership or in the Plant ten rights the dential information violation of the of the years after construction plant in Tennessee sulfur dioxide (cid:127) oper- to Alliance continues own and (the “Plant”) complete. was ate the Plant and continues to use (cid:127) Agreement the License be- Under dioxide technol- the Calabrian sulfur Calabrian, Noxso tween Noxso and ogy liquid to sulfur dioxide produce allowed to use Calabrian’s sulfur Agree- in violation of the License technology constructing dioxide ment. Alliance Calabrian reminded the Plant. their contractual obli- and Olin of (cid:127) contained Agreement The License of the gations ownership to transfer confidentiality provisions limit- using
strict Plant to cease and Calabri- technology, Noxso’s use of sulfur but Calabrian’s an sulfur dioxide restricting rejected any and Olin and Alliance have technology dioxide to the Plant as proprietary obligation and transfer access Calabrian’s required by agreements ques- trade secret information. Alliance wrongfully tion. Olin and (cid:127) Agreement granted The License have asserted that the License ten-year license to use Noxso Cal- terminate, Agreement does not but technology. abrian’s sulfur dioxide long instead runs as as the Plant is (cid:127) Agreement The License was as- in existence. signed to Alliance. upon allegations, Based these Calabrian (cid:127) Agreement, In the License assuming against asserts claims Alliance for de- obligated Alliance was to adhere to the Li- claratory judgment, breach of in- agreement all the terms of this Agreement, misappropriation cense and cluding confidentiality provisions secrets, seeking damages, actual trade to transfer obligation fees, attorney’s exemplary damages, Plant to Olin. permanent injunctive relief. Calabrian (cid:127) bought Chemtrade declaratory judgment that the li- seeks a is shares of Alliance. Chemtrade granted by Agreement cense the License primary competitor Calabrian’s as claimed Alliance perpetual, market. liquid sulfur dioxide Olin, already but instead has terminat- (cid:127) By of Alli- acquisition virtue of ed. asserts that Alliance has shares, obtained
ance’s Chemtrade breached the License to the confidential, access its commit- extent it has refused to honor trade secret information and is now agreement ment under to transfer position in a to use that information ownership According of the Plant to Olin. Calabrian, directly with compete repudiated Alliance has it obligation dioxide market. and has made it clear that liquid sulfur
165 Plant, cannot exercise over and intend to transfer does not Alliance because issue was determined this material constitutes a repudiation this (2) Case, Alliance in the 1998 Alli- against License Calab- breach of the ance has sufficient minimum contacts with and claims that Alliance breached rian also specific jurisdiction; Texas to establish Agree- License to breach the continues (3) the exercise of personal and continued use of Calabrian’s by ment would not violate traditional notions of fair technology. fur- sulfur-dioxide Calabrian justice. and The trial play substantial breached the that Alliance has ther asserts special granted appear- court Alliance’s provi- confidentiality and non-disclosure interlocutory appeal, ance. Calab- by disclos- of the License sions challenges rian the trial court or- court’s information and technical Calabrian’s der. to Calabrian trade secrets Chemtrade. apply estoppel, To collateral this court con- alleged Alliance’s breaches claims that must conclude that the record evidence of material breaches stitute sufficient to establish all the elements to termi- Agreement that entitle Calabrian necessary application of this defense. for alleges that nate that contract. Calabrian estoppel Collateral is an affirmative de- sul- misappropriated Alliance and, therefore, party asserting fense it by wrongfully dis- technology fur-dioxide pleading proving has the of and all burden including parties, it to third Chem- closing necessary for the doctrine of elements Calabrian, Alliance’s According trade. to apply.2 prevail To on its collateral- despite technology, continued use of this defense, had to estoppel Calabrian estab- expiration Agreement, of the License (1) sought litigated the issue to be lish that misappropriation amounts to of Calabrian’s in the 2011 is identical to an issue Case trade secrets and confidential information. fully fairly litigated that was in the may asserts that the trial court (2) Case; this issue was essential to Alliance exercise over judgment in the 1998 and that specific jurisdiction; Calabrian upon based judgment adequately deliberated and was general jurisdiction. does not assert (3) firm; parties were cast as as- special appearance Alliance filed a in the 1998 Case.3 The factors adversaries juris- serting that the exercise determining whether to be considered Alliance a Texas court the trial court’s 1998 Case diction over firm are: deliberated and adequately process due because Alliance would violate (1) heard, fully parties whether the were minimum contacts with lacks sufficient supported its deci- whether the court of personal Texas and because the exercise opinion, with a reasoned sion no- jurisdiction would violate traditional appeal the decision was whether justice. play tions of fair and substantial appeal.4 or in fact was reviewed on special appearance, opposed estoppel collateral bars elements nec- arguing reciting Some courts essary fail urging prove Alliance from that the trial court 560, Co., Boyer, v. 811 S.W.2d Mallios v. Standard Ins. 237 S.W.3d 3. See Mower 2.See Boswell, O'Toole, (Tex.1991); 2007, Dyke Van (Tex.App.-Houston [14th Dist.] (Tex. Pickering, Houston, Davis & 697 S.W.2d denied); pet. City No. Hudson v. Freeman, 1985); Upjohn 906 S.W.2d Co. v. 14-03-00565-CV, WL at *4 writ). (Tex.App.-Dallas no 101-02 6, 2005, (Tex.App.-Houston Jan. [14th Dist.] (mem. pet.) op.). no 562; Mower, Dyke, 811 S.W.2d at Van 4. See at 385. *12 166 proceedings that the evidence of the the 1998 any requirement judg-
mention and firm adequately ment be deliberated all the neces- Case sufficient establish “final” judgment that the be a one.5 or this affirmative defense.9 sary elements of Nonetheless, of Texas Supreme Court the trial The record before court contains adjudication of an prior has held that “[a] following documents from the 1998 only effect if it given estoppel issue will be (1) original petition filed Case: Calabrian’s and firm.”6 adequately deliberated (2) court, response in the state Thus, and must this element is essential be 12(b)(2) opposition to Alliance’s Rule complete included in a statement of the motion, the federal district court’s or- estoppel. essential elements of collateral 12(b)(2) Alliance’s Rule mo- denying der Likewise, cases, in some courts state that tion, the federal district court’s estoppel requires judg- collateral a “final denying order Alliance’s motion for recon- But, ment.” statement is not accurate this 12(b)(2) of the of its Rule sideration denial by judgment” unless “final these courts motion, subject reurging to its after fur- “judgment adequately mean a that was briefing by parties. ther Absent from firm.”7 readers deliberated and Because 12(b)(2) the record is the Rule motion filed might meaning not attach the latter to the judgment,” clarity pre- by for Alliance and Alliance’s motion for re- term “final cision, it the term “an is better to use Significantly, consideration. the record adequately judgment” deliberated and firm any not contain document does filed reciting when the essential elements of Alliance, any nor does it contain estoppel.8 signed in the 1998 Case. These are fatal By ruling, impliedly the trial court its omissions. determined that the evidence before it did denying In its order Rule Alliance’s
not establish all of the essential elements 12(b)(2) motion, the federal district court And, by estoppel. concluding of collateral why does not recite the reasons it denied erred, majority that the trial court motion, but court does state that it necessarily has that determined the evi- upon findings denied the motion based dence before trial court establishes all of fact and conclusions of law that it made of these elements. The record evidence majority’s hearing July does not determina- at a on 1998. Calabrian tion. supplied has not and the record does not findings contain these of fact and conclu- presented Calabrian has not evidence sufficient to establish all the elements reporter’s sions of law or a record from necessary application of the for collater- hearing any hearing or other al-estoppel defense. 1998 In its order on Alliance’s mo- Case. reconsideration, tion for the federal dis-
Calabrian,
party asserting
as the
collat-
estoppel,
presenting
following
eral
had the burden of
trict court makes the
statements:
See,
Scharbauer,
Mower,
562;
e.g.,Eagle Properties,
Dyke,
5.
Ltd. v.
7. See
811 S.W.2d at
Van
(Tex.1990) (reciting
at 385.
807 S.W.2d
697 S.W.2d
three
in-
elements
must establish to
Mower,
estoppel,
mentioning
voke collateral
without
8.
tered around 12(b)(2) Bankruptcy untimely motion because it was ? in the United States re-urge Eastern District of We do not know. Did Alliance for the Court *13 Tennessee; motion reconsideration ? We do not for know. Did the district court rule on this (2) 22, 1998, bankrupt- on December the re-urged motion ? We do not know. Did an order cy court that case issued judgment the district court render its aris- analyzing the various lawsuits final following in 2000 a settlement the 1998 dispute; out of this of Case, so the ruling that district court’s on (3) had not parties in the 1998 Case subject appeal? the motion was not to We the district court the 1998 briefed do not know. The record before the trial as to the effect this order had Case court is not sufficient to answer these cru- Case; the 1998 on questions. cial (4) accordingly, the district court denied motion for reconsideration Alliance’s estoppel requires proof Collateral that re-urging to its after further subject actually necessarily an issue was and de- by the briefing parties; part judgment cided as of a valid that was (5) firm. It not adequately deliberated and is the district court ordered further mere by showing possibilities. ef- established
briefing by parties as to the by offering Nor is it order established select bankruptcy fect of the court’s filings prior from the case that do not on the 1998 Case. address, meet, much less the threshold The submit- record documents Calabrian proof. ought standard of This court not do not reflect ted from 1998 Case it has give preclusive judgment effect to a re-urged Alliance its motion for whether never seen. brief- reconsideration after this additional ing or whether the trial court reconsidered President The affidavit of Calabrian’s 12(b)(2) Rule mo- ruling on Alliance’s “The Eastern contains a statement or, importantly, tion most the terms of the judgment District of Texas entered final judgment federal district court’s To the extent the case March of 2000.” 1998 Case. the nature of the the President addressed entered, con-
Without the motions that the federal this statement is a denied, recit- findings clusory district court that court’s statement of law. Calabrian law, or that ed this statement in the statement-of-facts fact conclusions appellate court lacks suf- section of its brief. Alliance did judgment, court’s final this (1) that there appellate not state in its brief ficient evidence determine whether Alliance did not judgment, issue in the 2011 was a final but personal-jurisdiction that there fully to an issue that was contradict statement Case is identical con- judgment. majority a final The fairly litigated in the 1998 this accept court must fully by were heard cludes that this parties whether Texas Rule of jurisdic- on the statement as true under the federal district court But, issue, under Appellate 38.1(g).10 Procedure tional whether federal district rule, of this unambiguous language a rea- supported court its decision with only true “facts stat- accept federal court must as opinion, soned or whether the another ap- by appellant, ed” unless subject district court’s decision was Tex.R.App. 38.1(g). See P. federal district court in the 1998 Case de- them.11 Because this state- contradicts law, it conclusory statement of subject person- ment is a cided that Alliance was the rule. of fact a statement when the court al Texas And, provides no crucially, 12(b)(2) statement motion denied Alliance’s Rule issue of whether the dis- evidence on the reconsideration of the and its motion for judg- either a final trict court rendered rulings denial of that motion. These an deliberated and adequately ment or judge were made of the United judgment.12 firm States District Court for the Eastern Texas, District of Beaumont Division. reach its conclusion majority The cannot argument, presumed For the sake of it is transpired speculating without about what *14 analysis opin- in in the the this section of Our record is devoid of in the 1998 Case. (1) ion that: the record evidence is suffi- necessary make that documents deter- cient for this court to determine the col- requisite the mination. In the absence of (2) issue; reject court was correct to proof, lateral-estoppel the trial Calabrian and Calabrian’s affirmative defense. This cast in the Alliance were as adversaries (3) Case; court likewise should conclude that Calab- in the the evidence present pro- rian did not of adequately 1998 Case was deliberated in ceedings the 1998 Case sufficient to and firm. necessary establish all of the elements of in the original petition its estoppel.13 collateral following allegations: made the Calabrian has not established that Calabrian (cid:127) Plaintiff is a Delaware cor- Calabrian personal-jurisdiction actually issue liti- poration principal place with its of gated in the 1998 is identical Case County, business in Jefferson Texas. personal-jurisdiction issue in the 2011 (cid:127) Republic Defendant is a Colorado Case. corporation place with of principal majority’s analysis, if Under even business in Colorado. supports the record the trial court’s im- (cid:127) Defendant a Wyoming Alliance is plied finding that Alliance did have corporation principal place with its of sufficient minimum contacts with Texas business Colorado. of personal juris- exercise (cid:127) and Noxso Calabrian entered into specific ju- diction over Alliance based on Agreement the License in connection risdiction, precluded Alliance is from Agreement with a Purchase dated challenging personal jurisdiction under (“Purchase Agree- October estoppel. doctrine collateral The ment”).
majority
argu-
finds merit in Calabrian’s
(cid:127)
that,
doctrine,
The
Agreement,
ment
under this
Alliance
the Pur-
estopped
seeking
Agreement,
subject
chase
and the
dismissal of the
personal ju-
Calabrian’s claims for lack of
matter thereof have been and contin-
subject
litigation
risdiction
the 2011 Case because the
ue to be the
be-
Hudson,
*4;
11. Id.
13. See
2005 WL
Cu-
ellar,
(cid:127) Thereafter, Noxso became Plant, production at the Plant? involuntary bankruptcy pro- of an obligations Republic What exist on In the February ceeding and Alliance to allow Calabrian access to proceeding, the Plant bankruptcy the Plant? the Li- Republic, was sold to confidentiality obligations What exist assigned cense Republic on and Alliance? Republic or Alliance. payment obligations exist to What (cid:127) objection filed an *15 Calabrian under or in connection with proceeding to the sale of bankruptcy Agreement? the License assignment Plant and the of the the Agreement, (10) but Calabrian rights access does What Calabrian objection pursuant later withdrew its have to the Plant? agreement to a between settlement original petition, In its Calabrian did and Noxso. Calabrian allege Republic that or Alliance breached
(cid:127) was filed there When the Case tort; any any contract or committed rath- between and dispute was a Calabrian er, requested injunctive Calabrian relief Noxso as to whether Noxso was money damages and in the event it was by agreement, bound settlement Republic determined that or Alliance had had filed a motion in and Calabrian violated or intended to violate the License against its lawsuit Noxso to enforce Agreement. agreement. the settlement Both the 1998 and the 2011 Case Case (cid:127) justiciable controversy A existed be- Agreement, involve the License Calabrian parties regarding par- tween the as the and Alliance as one of plaintiff, duties and ob- respective rights, ties’ Nonetheless, record defendants. in connection ligations under and none claims shows that of the Calabrian with the License asserts in the 2011 Case were asserted Case, sought de- In the 1998 Calabrian in the 1998 Case. The 1998 Case claratory regarding rights relief of the declaratory claims for relief and involves in- Agreement, the License parties under breach of contract. conditional claims for following to the cluding declarations as could not have Any such breach of contract issues: In the 2011 been committed after 2000. (1) may be many product How tons of Case, Alli- against asserts claims the Li- produced year pursuant each declaratory judgment, breach of ance for Agreement? cense Agreement, misappropria- the License (2) products of derivative types What tion secrets. The focus of these of trade may be at the Plant? produced contention that claims is on Calabrian’s (3) to transfer owner- may required at Alliance was products produced To whom years after Plant to Olin ten ship of the the Plant be sold? claims, Plant, asserting jurisdic- that the License different and the of the construction analysis tional of Alliance’s contacts with years, ten terminated after Agreement at much later in place point Texas takes Alliance disclosed confidential infor- Thus, critically, personal-juris- time. mation, technical informa- proprietary actually litigated diction issue in the first tion, trade secrets to Chemtrade. personal-juris- action is not identical to the in the 2011 upon allegations Based second action.15 diction issue alleged termination of the Li- Therefore, estop- the doctrine of collateral cense could not have occurred pel challenging does not bar Alliance from 2005, long after September earlier than jurisdiction in the 2011 Case.16 And, the conclusion of the 1998 Case. majority The concludes that the issue alleged disclosure of confidential informa- determined the 1998 Case was whether began tion and trade secrets to Chemtrade personal jurisdic- Alliance was allegedly in 2009. None of the actionable tion in Texas and therefore this issue is in the 2011 made the conduct Case was identical to the issue basis of the 1998 Case. But, above, in the 2011 Case. as discussed The record reflects that Calabrian did the federal district court the 1998 Case jurisdiction in general not assert the 1998 decided whether claims in Thus, denying Alliance’s motion to Case. the 1998 Case arose from or related to dismiss for lack of Alliance’s contacts with Texas and Case, the court impliedly the 1998 district exercise of over Alliance in the found that Calabrian’s claims in the 1998 Case did not offend traditional no- arose from or related to Alli- Case play justice.17 tions of fair and substantial *16 ance’s contacts with Texas and the The district court was not asked to decide jurisdiction may exercise of over Alliance in the whether in per- courts Texas exercise jurisdiction sonal over Alliance as to all 1998 Case did not offend traditional no- by any party, claims as to all claims fair play justice.14 tions of and substantial This, Calabrian, regarding or as to all claims the finding was based on Alliance’s con- through with Texas 1998 tacts and the Bilek,
relationship of these contacts to Calabri- v. Corea majority upon The relies in an’s claims the 1998 Case. Thirteen a recent case from our sister court in later, But, case, years in the 2011 is Amarillo.18 in that second Turbines, 14. See Ruston Gas Inc. v. Donaldson identical to issue of whether trial court could Co., Inc., 415, (5th Cir.1993). 9 F.3d 418-19 personal exercise defendant over action, given in first that the in the two claims Kenedy 15. See John G. and Marie Stella Mem’l actions were different and the difference in Found, Dewhurst, 268, 90 v. S.W.3d 288-89 facts), jurisdictional aff'd, Fed.Appx. 251 (Tex.2002) (holding estoppel that collateral (2d Cir.2007). apply litigated did in because issue first action was not identical to the issue in the Kenedy 16. See John G. & Marie Stella Mem’l Co., action); Grocery second In re H.E. Butt Found., 288-89; 90 S.W.3d at In re H.E. Butt (Tex.App.-Houston [14th Co., 377; Barrett, Grocery 17 S.W.3d at (same orig. proceeding) as John Dist.] F.Supp.2d at 427-28. Found.); Kenedy G. & Marie Stella Mem’l Bar- (1988), Inc., Development rett Tema Turbines, Inc., 17. See Ruston Gas 9 F.3d at (S.D.N.Y.2006) (hold- F.Supp.2d 427-28 418-19. estoppel preclude that collateral did not litigation of issue of whether trial court could personal jurisdiction (Tex.App.- 18. See 362 S.W.3d 825-26 exercise over defendant pet.). in second action because that issue was not Amarillo no majority’s after the defen- The broad construction of the was filed a week action effect of the collateral-estoppel personal- granted special appearance dant’s jurisdiction ruling impos- the 1998 Case action, claims asserted first and the strong es a disincentive to settle on a facts were the same jurisdictional unsuccessfully nonresident defendant who Thus, the facts of Corea both actions.19 in a objects to lawsuit from those in the materially are different involving long-term a contract. Under the majority The also cites case under review. if majority’s analysis, even the trial court case from the San Reynolds,20 Fretz v. a erroneously determines that such a defen- that is likewise appeals Antonio court of jurisdiction in subject dant is to Fretz, factually distinguishable. Texas, that defendant will be after days action was filed three second personal jurisdiction in Texas in all future against the court dismissed the claims contract, involving long-term lawsuits for lack of defendant unless, appeal, on that defendant obtains a action, assert- plaintiff in the first and the personal-jurisdiction ruling. reversal of the substantially ed the same claims But, appeal ruling, the defendant action, adding two additional claims second If cannot settle the lawsuit. the evidence on the same nucleus of that were based shows that the essential elements for col- facts.21 The other cases the ma- operative to a per- lateral were satisfied as analysis cites in of its also jority lawsuit, sonal-jurisdiction in a ruling prior foregoing not on For the rea- point.22 are preclude the defen- ruling then that should sons, by impli- the trial court did not err objecting personal jurisdic- dant personal-juris- edly determining that subsequent involving tion a suit actually litigated issue the first diction But, claims. substantially same or similar personal-juris- identical to the action is not substantially different claims are as- when in the second action.23 dietion issue later, as in this serted more than a decade case, new involves the lawsuit Conclusion contract parties long-term same two *17 to use the plaintiff should not allow the for a Today the court lowers bar to enforce doctrine of collateral estoppel by applying showing of collateral ruling. personal-jurisdiction prior in the absence of evidence of doctrine review, judg- and firm adequately an deliberated of applicable Under the standard But, factually even requisite proof. legally ment and other the record evidence im- if there were sufficient record evidence the trial court’s support sufficient to determination, have collateral-estoppel findings make a that Alliance did not plied reasons minimum contacts with Texas jurisprudential there are sound sufficient jurisdic- the exercise of not to the doctrine. apply claims as in second action asserted the same 19. See id. one additional the first action and added 04-03-00854-CV, WL 20. See No. claim, allegations plaintiff’s factual (Tex.App.-San *1 Antonio Dec. at same”). "exactly two actions were denied) (mem. op.). pet. Kenedy Marie Stella Mem’l 23. See John G. & 21. See id. 288-89; Found., re H.E. Butt 90 S.W.3d at See, e.g., Deckert v. Wachovia Student Fin. 377; Barrett, Co., Grocery (5th Servs., 963 F.2d 818-19 & n. 5 F.Supp.2d at 427-28. Cir.1992) (involving plaintiff in case in which juris- specific based on tion over Alliance
diction, jurisdic- all negated that Alliance Calabrian, that, by alleged
tional bases estoppel, of collateral
under the doctrine challenging precluded
Alliance is not in the 2011 The Case. court did not abuse its discretion
trial for a denying request
impliedly special-appearance
continuance an
hearing opportunity to allow Calabrian Therefore, discovery.
to obtain additional should affirm the trial court’s
this court not, respect- it does I
judgment. Because
fully dissent. FORK, INC.
BERRYMAN’S SOUTH Berryman,
and Richard
Appellants BRINKMANN INTERNA
J. BAXTER CORPORATION,
TIONAL The Brink Corporation
mann and J. Baxter
Brinkmann, Appellees.
No. 05-12-00492-CV. Texas, Appeals
Court of
Dallas.
Nov.