*1 REMITTITUR at to the ON NOT FILING sharply controverted timony was was re- before it of the fence condition by appellee has not been made Remittitur replacement fence consisted The moved. court en- provided as the order posts at five and creosoted set posts of steel 1974; therefore, 29, August the cause tered four strands foot intervals seven is reversed and remanded for further top hog inch wire and 32 wire on barbed opin- ceedings with this court’s consistent below. ion. testimony the cost indicating There was was the sum of replacing the fence $450.-
00, How- the court’s award. the amount
ever, that further showed the evidence posts items such as steel
cost included orig- part
hog which were wire breakdown of There no
inal fence. in the materials
the costs of various fence, replacement showing nor was there a CORPORATION, COHN-DANIEL comparable its overall value the fence which been re- value of had
moved.
FONDA, INC.,
DE LA
CORPORACION
Appellee.
proper
of damages
measure
was the reasonable value
the fence
No. 4709.
as an
Gulf,
at the
of its
enclosure
time
removal
Appeals
Civil
Wallace,
Ry.
C. & S. F.
Co. v.
14 Tex.Civ.
Eastland.
App.
(1896, writ).
placing the fence with a new fence of sub
stantially the same construction. Jackel Reiman, 78 Tex. 1001 (1890). S.W.
However Wallis was not entitled to com
pensation for the value of a new fence of
substantially better construction than the
original fence. Pickering W. R. Lumber Bussey, 665 (Tex.Civ. S.W. App. 1927, writ). We sus - Beaumont appellant’s point
tain third of error.
For stated, the reasons we reverse the
trial judgment court’s and remand same for proceeding;
further provided appel- that if
lee, Wallis, Fred shall remit the sum of
$900.00 within days fifteen from the date
hereof the trial court’s judgment will be provide
reformed so as appellee, Wallis,
Fred will be awarded the total sum and, reformed, so $300.00 the judg-
ment of the trial court will be affirmed.
Rule Texas Rules of Civil Procedure.
WALTER, Justice. appealed has Corporation
Cohn-Daniel ac cause dismissing its an order from Fonda, La Corporacion De tion for serv corporation Inc., Mexico a New hereinaft under ices rendered to pursuant had was set out. Service er 2031b, Vernon’s of Article provisions the Texas Ann.Tex.Rev.Civ.St, known Long Arm Statute. Appellant’s
Appellee agrees substantially cor- facts is statement as follows: rect and is corporation with is Texas “Appellant only offices located principal Dallas, Mexi- Appellee is a New located its offices corporation with co Fe, New Mexico. Santa eventually led negotiations which issue at of the contract to the execution Dallas, initiated in this were cause between short conversation Bailen, President, Appellee’s Mr. Cohn, Chairman, Appellant’s Board Mr. Chaparral Club which occurred Dallas, explained Bailen Texas. Mr. Appellee owned an old hotel San- major rehabilitation ta Fe and that a program including heating and air condi- tioning contemplated by Appellee. Appellant explained -that Mr. Cohn conditioning an old of air they had in Dallas and that courthouse experience type of work. Subsequent this initial to conversation Appellee one of between officers, Ashton, Appellee’s to Mr. came Dallas, Texas, representa- and met with Appellant tives the air to discuss at the La Fon- ditioning work to be done da Hotel in Ashton solic- Santa Fe. Mr. President, Appellant’s Bern- ited Mr. Berman, Douglas Yeager, E. Fichtner & baum, travel Fe look to Santa Mitchell, Dallas, appellant. trip After Bernbaum’s Mr. Peden, III, Fe, negotiations K. and Leo Hoff- were entered James J. man, Kelton, Price, .by Strasburger, by Appellee Appellant Martin & into Unis, Dallas, appellee. telephone calls a contract toward
whereby Appellant ing would serve as a con- heating facilities for La Fon- Appellee regard sultant to to the da. conditioning Ap- modification desired prepare Negotiate the neces- pellee. negotiations After by mail and sary agreements contractual between
telephone by Dallas, Texas, Appellant in Corporación Fonda, de Inc. and *3 Appellee Fe, Mexico, and in Santa New any parties third involved in con- a by Appellee contract entered into ditioning. Appellant. and agree- The contractual prepared by Appellee ment was and Corporación 6. Work with de Dallas, Texas, mailed to Fonda, where it was any disputes any in Inc. by Appellant. executed The contractual parties third involved in air condition- document was then Appellee mailed in ing. Fe, Mexico, Santa New where it was ex- suggest 7. Recommend and su- by Appellee ecuted eight days some lat- pervise buying the best method of
er.” equipment. Plaintiff’s copy Exhibit is a No. the of periodic inspections 8. Conduct contract is as follows: throughout design the and installation
phase requests and approve all for progress payments. “AGREEMENT Corporación agrees to remit Fifteen For a of consideration Twenty thou- Thousand for ($15,000) services ren- sand dollars, ($20,000.00) Cohn-Daniel monthly payments dered in ten Corporation, represented by Fred Mr. commencing May the month of the Henry Cohn, Bernbaum and hereby do $1,500.00 rate of the per month and bal- perform agree to following the services $5,000.00 of on ance conclusion of the Corporación Fonda, de La Inc. (‘Cor- poration)’ respects, all the final decisions will 1. Act an representative owner’s Corporación rest with and Cohn-Daniel and general co-ordinator during capacity et advisory al will serve in an preliminary, design and installation Corporation. vis-a-vis phases proposed air-condition- ing system any of modifications possible, If as well as time wise eco- the heating system Hotel, at La Fonda wise, project nomics will involve Fe, New Mexico. (approximately test area rooms) dur- March-May, ing bal- Assist, recommend, 2. and direct job ance of the in will be done winter- grams necessary for the selection of a spring of 1969-70.” competent engineering consulting firm complete feasibility study and special appearance In its La Fonda as- preparation plans final doing in serted that it was not business specifications for La Fonda. Texas within meaning of Article 2031b in and that to it exercise over 3. Recommend any changes in de- deprive process Texas would it of due signs prepared by the consulting engi- law under the United Constitution. States approve neers and design the final sustaining The court’s order La Fonda’s air conditioning and heating facilities. special appearance recites that La Fonda’s Assist, recommend and direct the special appearance in hereby and is —“be programs necessary for the things sustained,” selection all thereby finding that competent of a mechanical contractor La Fonda doing was not business Texas or contractors to install air-condition- within the 2031b meaning Article
Mí
process
agent upon
it in
whom service
Tex-
its
that to
over
exercise
arising
suit
out
may
due
be made
be a
as would
violation
The statute
state.
business
the Constitution of
United
done
clause of
such
provides
further
Section
States.
person:
nonresident
performed
part
its
Cohn-Daniel
doing
be deemed
business
“shall
tract
Texas and received
by
contract
entering into
State
payments
for its
in Tex-
services mail
with a resident of
or otherwise
negotiations for
preliminary
as. The
part by
ei-
performed in
whole
Fon-
began in Dallas between La
contract
.
.
.”
party
ther
State
da
Before
Cohn-Daniel.
executed,
Ashton
Dallas
Mr.
came
doing
La Fonda was
busi-
hold that
We
*4
with Cohn-Daniel about the
talked
meaning
the
of Arti-
in
within
ness
Texas
conditioning
on the hotel.
work to be done
entered into
the
cle 2031b because
contract
meeting
As a
of this
Cohn-Daniel’s
result
in
by
partially performed
mail was
inspect the
went to
Fe to
President
conclusively
these facts
The record
shows
negotiations were en-
Thereafter
to be true.
parties
by
tered
between the
into
telephone which culminated in the contract
Company,
Lanpar
399 S.
v.
O’Brien
a
performed
set out above. Cohn-Daniel
Supreme
our
(Tex.Sup.1966),
W.2d 340
great
obligations
deal of its
under the con-
Du
Tyee
Construction
Court cited
tract at
in
It acted as
its office
Dallas.
106,
Inc., 62 Wash.2d
lien
Products
Steel
general
project by
the
of the
co-ordinator
approval and
245
(1963)
P.2d
381
telephone and mail from Dallas.
of
Some
quoted
following:
the
payments
the
the
under
contract were
by
made
La Fonda to Cohn-Daniel mail
Washington
Supreme
of
“The
Fe
the
from Santa
to Dallas.
Some
Tyee
Co. Dulien Steel
v.
Construction
checks
fifty
were
small as
dollars and
106,
Inc.,
381 P.2d
62 Wash.2d
Products
some
for
were
several thousand dollars.
concept
245,
the
251
reviewed
(1963)
should
factors which
stated three basic
question is to decide whether
Our
a nonresi-
jurisdiction over
coincide if
personam
the trial
had in
corporation is
be entertained:
dent
to
First,
over the nonresident
we
defendant.
must determine if La
is amenable to
Fonda
to
appear
be:
.
would
‘.
. Such
process
Long
under the Texas
Arm Stat
or for-
nonresident defendant
(1) The
ute,
the
Article 2031b
then decide if
purposefully do
corporation
eign
must
personal jurisdiction over La
exercise of
transac-
some act or consummate
requirements
is consistent with the
Fonda
state;
the cause
tion in the forum
(2)
of due
of law under the United
from,
or
must arise
action
In
States Constitution.
Electronic
transaction;
with,
Jetco
act or
nected
such
dustries,
Gardiner,
v.
473
1228
Inc.
F.2d
assumption
the
and (3)
1973);
(5th
Atwood Hatcheries v.
Cir.
offend
by the forum state must
Farms,
Heisdorf & Nelson
given to the state, the activity in the forum provides the The Texas that Statute the parties, engages relative convenience nonresident who in business the laws protection of regular benefits and maintaining place Texas without a respec- the designated agent upon afforded of business or a the forum state equities of to tive and the basic may parties, whom service be had is deemed ” appointed Secretary of have State as situation.’ 342 Pennoyer resolving v. Neff In other
The rule vance suit. announced 565, words, 714, we see a rational 24 has been nexus between L.Ed. (1877), 95 U.S. Meas year. this and a Texas expanded in See lawsuit forum. greatly recent party the convenience to uring Ins. Co. one International Life McGee 199, 220, 2 L.Ed. inconvenience to other 355 U.S. 78 S.Ct. stand-off, 223; something At results of a International Co. v. Wash 2d Shoe Hatcheries, 154, supra, wood at 854 ington, 90 L.Ed. 357 F.2d 66 U.S. S.Ct. Obviously it is Promo n. 23. more convenient Product A.L.R. tions, Cir., litigate in Cousteau, appellant to Texas Inc. 495 F.2d more for CEMA do so convenient (1974). Nevertheless, important elsewhere. purposefully La Fonda’s Mr. Ashton that we are thing is unable to conclude Texas and the terms of came to discussed any hardship inconvenience thereafter, contract contract was from having to the suit CEMA defend basis consummated mail. rises to the level denial cause of action is on contract. The said Finally, process. pointed due CEMA has design project sent to Dallas particular inequity might re by mail. with refer- The recommendations juris a court in Texas sult if exercises design project ence to the were suit, person diction over CEMA’s sitting from made Dallas. Cohn-Daniel *5 can find none. The we maintenance engi- Dallas assisted in the selection suit of this CEMA in Texas will neering consulting firm “traditional fair not ‘offend notions of La Fonda purposeful made a choice to do ’ play justice.’ and substantial Interna corporation. business with this Its Texas Washington, tional 326 U.S. Shoe contacts were not or “fortuitous acciden- 154, 158, 66 95 S.Ct. 90 L.Ed. Promotions, tal.” In Product Inc. v. Cous- (1945).” teau, Cir., page F.2d 483 requirements hold that the court said: We set forth Lanpar supra, Company, O’Brien “A second test must he satisfied if also conclusively have been established and jurisdic- court’s personal exercise of courts Texas have over tion over a nonresident is to defendant juris- and that the Fonda exercise of such be Simply consistent process. with due not diction does violate the due stated, it must not be unfair unrea- requirements law States United require sonable to de- the nonresident Constitution. fend the Although suit in the forum. judgment The is reversed and the cause particular answer, factor our controls is remanded. this test requires us to consider such things as the interest of state BROWN, (dissent- RALEIGH Justice viding suit, a forum for the relative ing). conveniences and inconveniences to the parties, equities. and basic We conclude respectfully I dissent. that the judice cause sub meets the re- conclusively before The record this court quirement of this second test. upon establishes which
We base this conclusion on several this cause of action is was finalized based place, considerations. In the first in New Mexico La Fonda’s execution. certainly legitimate has a require performance and reasonable The contract does not interest in providing a any forum is no terms in There plaintiff resident, suit. The is a Texas showing any finding by nor trial Texas, the contract was parties contemplated perform- made that the Texas law will surely some rele- ance in Texas. this record contacts reflected assumption justify
are such as to by the and the Texas courts these
assumption jurisdiction under
facts, my judgment, offends traditional play justice. fair
notions of and substantial
I would affirm.
STANDARD FIRE INSURANCE COM- PANY, Jamaican
Melvin L. FRAIMAN d/b/a Apartments, Appellee.
No. 1015. Appeals Civil (14th. Dist.). Houston
Sept. *6 Crooker, Connally, Fulbright A. &
Tom Houston, appellant. Glickman, Houston, appellee.
Julius