*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). 37 S.W. 382 no Sept. 5, 1974. arriving at such value the trial could properly have considered cost of re

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 357 F.2d 847 play and fair notions of traditional 1966). (5th Cir. being justice, consideration substantial nature, and extent quality,

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