*3 BASS, and Before SAM DUNN O’CONNOR, JJ.
OPINION
O’CONNOR, Justice.
special appearance.
This
General
is
(GE),
Company
plaintiff, appeals
Electric
against
dismissing
from an order
its suit
Distributors,
Brown & Ross International
(Brown
Ross),
Mares,
Jerry
Inc.
&
Pamas,
Stephen
defendants. We reverse
the case
remand
for trial.
New York corporation
GE is a
that does
in Texas.
business
Brown & Ross is a
corporation.
New York
Pamas was the
president and a
of Brown
shareholder
vice-president
Ross. Mares
and a
of Brown &
All
shareholder
Ross.
of the
filed
appearances
defendants
chal-
jurisdiction.
lenging personal
The trial
special appearances
court sustained their
per-
dismissed G.E.’s suit for want of
jurisdiction.
sonal
special appearances
I. The
two,
In points of error one
GE ar-
gues
sustaining
trial
that the
court erred in
special appearances.
main-
defendants’
tains that the court should not have dis-
jurisdiction
suit
missed the
for want of
did
all
negate
because defendants
not
theo-
personal jurisdiction.
ries of
A. Standard
review
court,
the trial
each defendant
proving
jurisdic
has the
burden
lack
negate every
one of
tion. Each
them must
possible ground
personal
Middleton,
Corp.
Kawasaki Steel
699
(Tex.1985);
S.W.2d
Tex.R.Civ.P.
appeal,
120a.
we
record to
On
review the
state,
negated every pos-
process
if
so due
violated.
defendants
determine
Schlobohm,
personal jurisdiction.
Second, might specif- can Texas courts exercise have assumed a Texas court jurisdiction general ic or over each defen- call.
dant? If cause of arose or action purposeful was connected with the act that 2. General Texas, completed defendant Texas question The second is whether a specific jurisdiction. courts If have defen- gen jurisdiction or specific Texas court had continuing systematic dant had con- eral Brown On over & Ross. Texas, general tacts in Texas courts have record, many Ross had con this Brown & newly Under the re-formulat- in Texas. tacts ed jurisdiction, supreme court cus- Brown Ross had about Texas said carefully investigate we should all con- tomers. The record that substantial shows sort, compile, tacts analyze them place sales of counterfeit took proof pattern of a continuing Atlantic, agent Texas. its told systematic Schlobohm, activity. many companies & Ross Brown S.W.2d at 359. distributing genuine parts. In- Third, assumption jurisdic- would the *5 stead, tagging parts Brown & Ross tion over this defendant offend traditional numbers, from other sources with GE play justice? notions of fair and substantial printing envelopes its packag- own GE for question litigation main is a whether in ing. Brown & Ross assembled counter- Texas excessively court would be burden- parts through feit and distributed them its some or inconvenient defendant. agent. Texas Schlobohm, 784 S.W.2d 359. at agree The courts that routine sales and
C. Brown & Ross profit-making other activities in another subject corporation general state will a to 1.Purposeful availment jurisdiction in that state. In World-Wide question The first is whether Brown & 297, Volkswagen, 444 at U.S. 100 S.Ct. at Ross purposefully itself priv- availed of the Supreme Court said if a that non- ileges conducting business in Texas. product resident defendant sells its in a Brown & Ross asserts it that had no warn- state, through its own efforts or those of a ing that its activities in put Texas would it distributor, may the courts of that state on notice a corporation that New York reasonably jurisdiction assume over that would hale it into a court. GE main- non-resident defendant. tains did. points that it July to the When Brown & Ross entered into a con- licensing agreement 1983 Brown & Ross Atlantic, tract with a Texas company, and Export executed with Import Atlantic & made companies, routine sales to Texas it (Atlantic), Texas, Company company a in engaged systematic continuous ac- which agent made Atlantic its sales for GE tivity. though Even Brown & Ross was products. After signing agreement, Texas, physically present enjoyed not it Brown changed & Ross its letterhead to list profits companies. from sales to Texas Be- Houston one of its business locations. deliberately engaged cause it in continuous When a corporation purposefully here, systematic activities Brown & avails privilege conducting itself subject jurisdiction by Ross should be to state, activities with the forum it has clear Schlobohm, Texas courts. 784 S.W.2d at subject notice that it to suit there. Volkswagen Corp. World-Wide v. Wood son, 286, 297, 559, 567, 444 U.S. play 3. Fair (1980); Kawasaki, 62 490 L.Ed.2d 699 S.W.2d at 201. expected question Brown & Ross to The last is whether “tradi profit here, from play its activities and it re tional of fair notions substantial justice” ceived a are a benefit Texas residents and offended Texas court as Smith, jurisdiction Texas state laws. Ross. serting Zac over Brown & Shoe, at reasonably 665-66. Brown 66 & Ross could U.S. at International 158; Schlobohm, and Pamas. On jurisdiction 784 S.W.2d at over Mares S.Ct. record, Pamas did not have argues that most of this Mares and 359. Brown & Ross Texas, spe- many contacts in but did have sources of evidence will be New gave rise to the suit. argues York. Brown Ross also that the cific contacts that & expense too if it had would be burdensome Mares and Pamas does conduct of litigate to to come to Texas this action. of “continuous appear not to rise to level that, responds was, because sale activity. There systematic” Texas, place prov- took counterfeit therefore, no over any ing case in New York would be If the Texas court had Mares and Pamas. easier than in Texas. Because Brown them, only it was under jurisdiction over apparently Ross did most its Texas busi- theory specific jurisdiction. Before Houston, go ness in GE would have specific jurisdic court assume a Texas can expense litigate suit in New similar this them, tion over we must find that Mares York. notions of We find “traditional did purposefully and Pamas some act justice” are not fair substantial Texas, controversy out and that the arose by Texas court’s assertion of offended Helicopteros of their contacts. Nacio jurisdiction over Brown & Ross. Hall, 466 U.S. nales De Colombia v. 415-16, 1868, 1872-73, 80 L.Ed.2d S.Ct.
D. Mares and Pamas O’Brien, (1984); 399 S.W.2d at During hearing, the trial court 1983, Mares traveled to July argued they are Mares and Pamas meeting, during two-day Houston because immune from *6 agreed be & Ross’ which Atlantic to Brown corporate in they capacity. acted Atlantic, agent. Vasquez, In of sales Supreme Court in United States Calder called Mares from Texas and asked Mares Jones, 783, 790, U.S. get drawings. Mares and Pamas to GE’s (1984), stated that 79 L.Ed.2d in Higgins, specialist a sales bribed John person employee does not insulate a status department, get the gas turbine to GE’s The status of Mares and drawings. Higgins drawing took secret employees of Brown & Pamas as former parts gas of GE’s turbine after Mares and them from Texas Ross does not insulate pay significant agreed Pamas to him sums Colder, we must courts. the Court said pled money. of Both Mares and Pamas the fo test each defendant’s contacts with bribery guilty commercial and unlawful to separately. rum Id. state on use of secret scientific material based drawings dealings Higgins. The their with 1. Purposeful availment York, in to Mares New and then were sent question is whether next to Atlantic in After delivered Houston. purposefully Mares and Pamas availed got drawings, they Mares and Pamas privileges conducting themselves of the of paid Higgins to customers also divert GE Mares, traveling to is Texas. in business & Ross. Mares and Pamas to Brown scheme, up could have Houston to set signed pay Higgins. to the checks expected the of a Texas court. Pamas call Mares, Pamas, Through of the efforts Pamas, how did not travel to Houston. many Higgins, salespersons, Tex- and other ever, illegal acquisition participated companies told that Brown & Ross were drawings and used them to of GE’s secret distributing genuine parts. GE Sever- Pamas, par defraud Texas customers. were divert- of the Texas GE customers al ticipating in to the scheme defraud Texas Ross, unknowingly to Brown & ed customers, anticipated could have the call parts. bought counterfeit aof Texas court. trips made least two to Hous- Mares Specific jurisdiction continuously He to solicit business. ton to Atlantic and several question phone The second is whether a made calls he in Texas. Mares admitted specific jurisdiction or court had customers subject He personally deceived Exxon. initiated this state. Pamas should also be to of planned theft GE’s trade secrets Texas. (drawings), which resulted in sales of coun- parts
terfeit GE Texas customers. play Fair discovered these actions filed suit. question The last is whether “tra arose, controversy large out part, This play ditional notions of fair and substantial Mares’ actions. justice” offended a Texas court as are serting jurisdiction over Mares Pamas. GE’s lawsuit was the direct result of whether, despite must We determine sup- acts. Mares’ tortious The evidence contacts, minimum there is existence of ports prima showing, jurisdic- facie any why jurisdic reason our assertion purposes, tional that Mares committed the tion over Pamas and Mares would offend purposefully tortious acts and directed his play traditional notions of fair and substan actions toward customers in Texas. justice. Nothing tial the record subject personal jurisdiction shows Mares litigation in a Texas court would be Texas. excessively burdensome or inconvenient to The evidence does show Mares or Pamas. personal made trips Pamas to Texas. Pa- We hold that the exercise of participated mas in the theft GE’s secret over Mares and Pamas does not offend drawings. signed Pamas the commission traditional notions of fair and substan- checks for the sales counterfeit justice. tial We sustain the first and sec- Texas customers. Pamas had tele routine points ond of error. phone conversations with Atlantic in Texas personally supervised salespersons special appearance II. Waiver who handled bought Texas customers that point error, In GE’s third it as parts. counterfeit GE serts that defendants waived their appearances, Siskind v. general appear Villa Foundation entered Education, Inc., ances, by asserting 438 n. the doctrine of forum *7 Supreme the Texas Court support non conveniens their brief in of stated that a nonresident physi special appearance. need not be cally present in the state. The non-resident 120a, Tex.R.Civ.P., Rule requires a defen- must, however, take some action special dant to make a appearance in a which we can infer a reasonable foreseea sworn it any motion and file before other occurring Siskind, ble result in Texas. In pleading plea, permits or motion. The rule respondents individual personal did not any pleading a defendant to include other ly solicit business Texas and not were special in the same ap- instrument as the not, involved in a conspiracy. There were pearance, any or file other pleading after therefore, enough justify contacts to special appearance, without waiver of personal jurisdiction. exercise of Id. special appearance. case, In this defendants asserted the doc- case, however, In this evidence trine of forum non conveniens in a brief. shows that all defendants were involved separate This a plea, pleading, was not or conspiracy. plaintiff alleges When a argument motion. made Defendants conspiracy, the non-resident defendant support special appearances, of the know, good know, must or have reason to argument of their under fair and sub- that his will conduct have effects in the justice, person- stantial the third element forum state. See McFee v. Chevron Int’l if al Even their brief was Co., 469, (Tex.App.- Oil pleading, spe- defendants filed it after the 1988, writ). Houston no [1st Dist.] appearances. cial We hold that defendants record conspired shows that Pamas to sell did not their appearance. waive Texas, counterfeit and he knew that his conduct would affect in We point customers overrule GE’s third of error. 1872, 408, 414-15, 466 U.S. findings of Request for fact
III. (1984). L.Ed.2d 404 order, its After the trial entered court stan- applied We conclude we correct fact and conclu- requested findings of GE motion of review and we overrule the court did not submit dard sions of law. trial rehearing. asked that any findings. appeal, On GE appeal, pending the this Court abate the findings by the trial court.
submission of We denied its motion. error, point asserts fourth GE its prosecute appeal was ability
that its this did prejudiced because the trial court findings file Because we are sus fact. taining points jurisdiction, on GE’s CENTRAL LIGHT POWER any has not record shows GE suffered COMPANY, Appellant, injury of the trial court’s failure to because Inc. findings. file See Indus. Cherne (Tex. 768, 772 Magallanes, 763 S.W.2d CABALLERO, Appellee. A. Richard 1989). No. 04-90-00112-CV. point We of error. overrule GE’s fourth Appeals
Court San Antonio. discovery to limit IV. Motion error, urges point fifth its Dec. granting trial erred in defendants’ court Rehearing Denied March discovery motion limit to documents and 31, 1985. through transactions December that it defendants had argues believes systematic contacts
continuous and it to that in 1986 and and was entitled information show we are sustain- over defendants. Because ing points jurisdiction, the record GE’s on any injury suffer
shows that GE did not ruling on dis- because of trial court’s *8 point of covery. We overrule the fifth error. ON MOTION FOR
OPINION REHEARING rehearing, In their motion for defendants trial deci we reviewed the court’s contend novo, applied sion de when should have we legal sufficiency test to the the factual of re appropriate evidence. standard appeal special appearance view in the case to review all the evidence Schapiro, record. See Schlobohm (Tex.1990); Helicopteros Hall, 616 S.W.2d Nacionales 1981), (Tex.App. re reversed, [1st Dist.] - Houston versed, Hall, copteros Nacionales v. Heli