H. Heller & Co. v. Louisiana-Pacific Corp.

guardian. need a report, Ms. cal investigations in the face of substantial expressed Shannon concerns with whether evidence that Karlen neither needed a appellant Karlen, had access to but con- guardian nor appellant wanted to be her that, regardless concern, cluded of her guardian in necessary. the event one was “appointment guardian of a is not in Pro- facts, Based on these we find that the trial posed Ward’s best interest.” The trial court did not act arbitrarily or unreason- court also allowed Karlen to make a brief ably in finding that it was unnecessary to statement at hearing expressing her appoint physician a to examine Karlen un- opposition guardianship; to a in the event 687(b). der Section appel- We overrule guardian a necessary, was she stated her lant’s sole issue. preference appointed.2 that Rick be The We affirm the trial judgment. court’s trial court also considered appellant’s Mo- Independent tion for Medical Examination

itself and all pleadings “other and papers

on file this cause” in reaching its deci- deny

sion to the motion for examination.

Included report by file was a a

court-appointed investigator concluding

that Karlen did not guardianship, need a

and a Carney letter Dr. opining that a guardianship unnecessary was because he CO., H. HELLER & INC. and Gulf found no incapacitation. evidence of Fi- Polymers, Inc., Performance nally, there was evidence that Karlen had Appellants, executed a power durable attorney Rick, favor of supporting the notion that Karlen appellant did not want to be her

guardian. only supporting evidence LOUISIANA-PACIFIC incapacity Karlen’s was a one-sentence CORP., Appellee. handwritten note year dated almost one No. 14-06-00481-CV. prior application to the guardianship filing doctor, Pizette, from Karlen’s former Dr. Appeals Court of stating that Karlen suffered from severe (14th Dist.). Houston ataxia and required personal dementia and twenty-four care day, hours a days seven Dec. sum, week. the trial court had sub- it, stantial amount of evidence before in-

cluding evaluations from court-appointed

officials, that Karlen incapacitated was not

and did not guardian, need a while the supporting incapacitation evidence court, thin

was and stale. The trial there-

fore, may well have found that

unnecessary subject prob- Karlen to the

ing prodding involved in further medi- generally requires The Probate Code appointing guardian. Tex. Prob.Code Ann. give pref- the court "due consideration to the § 689. incapacitated erence person" indicated Stanford, M. Gregory Michelle

Rachel Plessala, Houston, Cokinos, for A. Robert appellants.

George R. Murphy, unjust L. DiMi- Appellants Sabrina enrichment. failed ehele, Houston, Dow, Humble, Greg J. for answer the Alabama Conse- lawsuit. appellee. quently, May on the Alabama trial court entered a judgment default Panel consists of Chief Justice $199,494 LP in- awarding damages HEDGES and YATES and Justices terest. SEYMORE. below, the court acknowl- edged making the sales to LP contend- but MAJORITY OPINION ed LP initiated the contact re- HEDGES, ADELE Chief Justice. sulted in sales and that of the neither H. Appellants, Heller & Inc. and appellants solicited business in Polymers, appeal Gulf Performance personnel sent to Alabama to the related juris- plea denial of their They they sales. further did below, diction. In the court Louisiana- did not maintain offices filed Pacific of an Ala- enforcement agent have an for service process judgment against bama appellants. On Alabama, did not have in Ala- salespeople appeal, contend that the trial there, bama or make routine did not sales erred in denying plea court to the their advertise and did have jurisdiction because the Alabama court is- bank accounts or own the property suing original the did not judgment repre- Appellants state. asserted that LP over them. af-We the inspect sentatives traveled to Texas to firm. product and traveled to to dis- New York sale, any cuss but at no did the time

Background representative of to Ala- travel conjunction They bama in with Appellants high-density manufacture the sale. HDPE, to polyethylene, thermoplastic pursuant or further contended the a contract, shipment ownership from terms of the petroleum. pur- made LP of and risk loss of the HDPE transferred shipments chased three of HDPE from product to LP the was loaded on appellants for use the manufacture of an when Channelview, railcars in engineered-wood decking material. Each Texas. shipment comprised was two rail-car affidavit LP’s re- an attached to facility sent appellants’ loads Greg manager, sponse, Stogner, an LP Channelview, Texas, facility to in Sel- LP’s stated that initial contact with ma, Alabama. LP company through the was a former Selma, lawsuit,

In its alleged LP who Ala- employee worked facility. HDPE from shipment appel- sending alleg- the third bama Prior to the lants failed to meet had specifications. edly shipment, appellants contract defective LP further rail- shipped that the sub-standard sold and at least four other quality appellant’s product pur- resulted in a to LP in cars of HDPE Selma. material, decking shipment sub-standard batch of for each chase order stated Selma, According had to be scrapped. product which to the would be to LP, appellants Appellants paid subsequently declined to Alabama. selected and payment replace product refund LP’s the defi- for rail carrier to deliver the the Furthermore, product. pleaded cient LP of ac- to the negotiating causes Selma. contract, sale, required tion for breach of breach of war- LP that the HDPE have a conversion, index, ranty, fraud/misrepresentation, certain nominal melt on its appears a speci- present judgment met this certified their valid, final, subsisting a face to be fication. Metals, judgment. Mindis 132 S.W.3d action, original filed enforcement LP’s an judgment creditor files 484. When 19, 2005, July appears court below on the judgment copy foreign of a authenticated princi to have been based on common law UEFJA, facie pursuant prima ples foreign judgment enforcement. presented. case for its enforcement is on December LP subse Mitchim, v. Mitchim S.W.2d pleadings pursuant their quently amended Metals, (Tex.1975); Mindis 132 S.W.3d Foreign Enforcement of to the Uniform judg shifts The burden then (UEFJA). Act Judgments PRAC. Tex. Civ. clear and convinc prove ment debtor (Vernon §§ 35.001-008 Rem.Code Aun. & judgment ing foreign evidence that UEFJA, Supp.2006). & Under the credit. given not be full faith and should in a very filing foreign judgment of a Metals, 132 at 484. Well- Mindis original court both Texas constitutes an exceptions requirement established petition and a judgment, final automatical (1) include of full faith and credit when ly creating judgment. Mon final Texas sought interloc judgment to be enforced is Harvey, 20, 22 crief (2) subject to modi utory; judgment writ). A App.-Dallas challenge (3) fication; rendering per lacks foreign op the enforcement of a judgment (4) subject jurisdiction; sonal or matter erates as a motion for new Mindis trial. judgment procured by extrinsic Metals, Control, Inc. Motor & Oilfield (5) fraud; period enforcing 485 (Tex.App.-Hous 485; foreign judgment expired. has denied). 2004, pet. ton As [14th Dist.] Inc., Worldwide, Lanier see also Brown v. mentioned, appellants challenged enforce 883, 124 (Tex.App.-Houston S.W.3d 903 by the filing plea ment of Alabama action a 2004, pet.). look to the Dist.] We [14th jurisdiction, which the trial court rendering judgment laws of state denied. judgment’s validity. to assess the Mindis Metals, at 132 484. S.W.3d Legal Underpinnings Long-arm In their appeal, ap sole issue on Similar to Texas Statute, pellants Long-arm that the trial erred Statute contend Ala denying of plea jurisdiction their extends process limits of because Alabama court that issued bama courts to the due judgment not and state constitutions. original personal did under federal 4.2(a)(2); jurisdiction Camp v. over them. Under constitu Ala. R. Civ. P. Sieber (Ala.2001); comity, bell, 641, also principles tional of federalism and 810 So.2d 644 see given §§ 17.041- full faith and credit must be each Tex. Civ. & Rem.Code Ann. PRAC. (Vernon acts, records, judi Supp.2006); BMC public state to the .045 1997 & Marchand, Belgium, v. 83 proceedings every cial of other U.S. N.V. state. Software Const, 789, (Tex.2002). 1; IV, § § 1738. The exercise 28 U.S.C. S.W.3d 795 art jurisdiction Accordingly, required a over a nonresident personal Texas is to enforce condi judgment another is when two presented valid from defendant constitutional (1) estab Myers state. Bard v. R. Ins. tions are met: the defendant has See Charles (Tex. 791, the forum 839 794 lished minimum contacts with Agency, 1992). (2) state, jurisdiction party seeking the exercise to enforce fair foreign judgment comports the initial burden with traditional notions has 850

play justice. and substantial Int’l Shoe Co. suit there. (citing Id. World-Wide Washington, 310, 316, v. 326 U.S. 66 S.Ct. Woodson, Volkswagen Corp. v. 444 U.S. 154, (1945). 90 L.Ed. jurisdic 95 Personal 286, 297, 100 S.Ct. 62 L.Ed.2d 490 tion if exists the nonresident defendant’s (1980)). contrast, By may nonresident minimum give contacts gen rise to either jurisdiction avoid struc- eral or specific jurisdiction. Helicopteros turing its transactions so as neither to Colombia, Hall, Nacionales de S.A. 466 profit subject from the forum’s laws nor be 408, 413-414, U.S. 104 S.Ct. 80 to its (citing Id. Burger King (1984); Software, L.Ed.2d 404 BMC Rudzewicz, Corp. 462, 475, 471 U.S. S.W.3d at 795-796. General is (1985)). S.Ct. 85 L.Ed.2d 528 present when the defendant’s contacts with a forum are systemat continuous and single Even a act can support ic may so that the forum personal exercise jurisdiction if it creates a con substantial jurisdiction over the defendant even if the nection with Burger King, the forum. cause of action did not arise from or relate U.S. 476 n. 105 S.Ct. 2174. Howev to activities conducted within the forum er, single some or occasional acts related Software, state. BMC may to the forum be insufficient to estab Specific is established when lish where their nature and the nonresident defendant’s liabili quality create an attenuated affiliation ty arises or is related activity Furthermore, juris with the forum. Id. conducted within the forum. Id. The “may diction be merely avoided be jurisdictional “touchstone” of process due cause the physically defendant did not en analysis “purposeful availment.” Michi ...; ter the forum State long as a [s]o Easy Holten, ana Livin’ Country, Inc. v. commercial actor’s efforts are ‘purposeful (Tex.2005) (citing ly directed’ toward residents of another Denckla, Hanson v. 357 U.S. State, Supreme Court [the has] consistent (1958)). S.Ct. 2 L.Ed.2d 1283 “[I]t is ly rejected the notion that an absence of essential in each case that there be some physical juris contacts can defeat act ‘purposefully which the defendant diction there.” Id. 105 S.Ct. avails’ itself of privilege conducting State, activities within the forum in thus to minimum con addition voking protections the benefits and of its tacts, personal the exercise of Hanson, laws.” Id. at (quoting 785 357 comport must with traditional notions of 1228). at 78 U.S. S.Ct. There are fair play justice. and substantial BMC important three aspects to be considered Software, (citing 83 S.W.3d at 795 Int’l (1) in evaluating purposeful availment: Shoe, 154). 326 at U.S. 66 The S.Ct. only the defendant’s contacts with the fo following factors are relevant to this deter count; rum a cannot defendant be haled (1) mination: the burden on the nonresi jurisdiction solely into a as a result of the (2) defendant, dent the forum state’s inter activity party unilateral of another or a (3) adjudicating est in (2) dispute, the the person; third upon the acts relied must plaintiffs in obtaining interest convenient random, purposeful be rather than isolat (4) relief, (3) judi and ed, fortuitous; effective the interstate or and a defendant must system’s cial in benefit, obtaining interest the most sought advantage, have some controversies, efficient resolution of profit by availing itself of the (5) By invoking Id. the benefit and the shared of the several states protections interest laws, of a forum’s a nonresident consents in furthering policies. substantive social

851 Holding that Okla- Volkswagen, at 100 S.Ct. 559. World-Wide U.S. ju- constitutionally 559. 100 S.Ct. could not assert homa risdiction, the explained Court Minimum Contacts1 a mere fact it was foreseeable York cause Here, sold in New could lia automobile appellants’ alleged an insufficient activity injury arose Oklahoma bility related de- to forum state for the Accordingly, we examine the rec connection forum. reasonably anticipate being had ha- ord for whether the Alabama court fendants specific personal appel an courthouse. over led into Oklahoma Software, 295-97, lants. See BMC 83 S.W.3d 559. Metal S.Ct. Asahi begin by examining Cowl, 796. limits of We Superior a Industry plurality prior such as established in clarify sought holding the Court precedent. Volkswagen, stating that World-Wide a defendant to a sufficient order Volkswagen,

In World-Wide the United juris- with to support connection a forum Supreme States Court considered whether diction, be the defendant’s actions must an could Oklahoma court exercise more directed the forum jurisdiction over a nonresident automobile placed merely having state than retailer its wholesale distributor when in the stream of commerce that finds its connection defendants’ with Okla- Metal, way the forum Asahi state. they was the homa fact an auto- sold 102, 110-12, 1026, 94 107 S.Ct. mobile York to resi- U.S. New New York (1987).2 Here, subsequently dents that involved L.Ed.2d 92 the facts became accident in an Oklahoma. 444 U.S. circumstances of contacts with mentioned, precedent. general principles 1. As look the laws of the are rendering judgment same, state to assess and we that there would be no find Metals, judgment’s validity. Mindis depending which difference outcome on certainly regard S.W.3d at This is true controlling. precedent state’s ing validity issues of on based state substan procedural tive and law. See id. at 486-90 Volkswagen, Supreme In World-Wide modification, (addressing finality, issues Court stated that: "The forum State does law). Georgia and fraud under powers under the Due Process exceed its validity when the issues of are feder based on Clause if it asserts over considerations, process al due it is unclear corporation products that delivers its into the guided whether we should be forum more expectation with the stream commerce precedent precedent. state or Texas See Karstetter purchased they be in the will consumers Voss, State.” U.S. at S.Ct. 559. forum App.-Dallas pet.) (performing mini mentioned, Asahi, plurality of the As analysis citing mum contacts both Texas something than Court asserted that more precedent); Equip. Wu v. and Kansas Walnut placement mere in the stream of commerce Co., Leasing S.W.2d 280 n. required jurisdiction attach. was before could 1995), App.-Houston rev'd on oth [14th Dist.] 110-12, In 480 U.S. 107 S.Ct. 1026. (Tex. 1996) grounds, (citing er Salinas, Supreme CMMC v. the Texas Court Pennsylvania precedent Texas and both and majority that a the States noted United stating question initial of whether "[t]he adopted rejected Supreme Court never has provide cognizable the acts of the defendant plurality’s requirement the Asahi of additional jurisdiction basis for under the conduct directed at the forum. 929 S.W.2d Pennsylvania long-arm statute is one of state Michiana, (Tex.1996). the 438-39 In law. the issue of that ex whether Supreme noted that its own hold Texas Court comports with the due ercise constitutional law.”). ings require have indeed followed the Asahi process Accordingly, is one of federal toward analysis, this ment of additional conduct directed in our we consider the facts of Texas, federal, light Inter- Alabama the forum state. 168 S.W.3d 786. case in and Alabama distinguishable bama, are from those in purchase issued a order requiring and, indeed, Volkswagen, Alabama, World-Wide shipment to paid selected and such contacts were Alabama, more di- the rail carrier for shipment to rected the forum and merely product toward state than certified that their met the placing specifications them in the required by stream of the commerce. Alabama Appellants purchaser. were by contacted an LP em- Alabama, ployee in negotiated stationed Michiana, In the Supreme Texas Court sale, issued a purchase order requiring considered whether the by sale of an RV shipment Alabama, to paid selected and an Indiana dealer to a Texas resident sub- the rail shipment Alabama, carrier for to jected the dealer to in and certified product their met the Texas. 168 hold- specifications required by purchaser in ing that the dealer requi- did not have the Certainly, appellants Alabama. under- jurisdiction site minimum for contacts stood that their was to be used in apply, emphasized the court that although appellants purposefully and di- the dealer purchased knew the vehicle was rected conduct toward forum by nego- sale, for in use it a single was tiating with in someone the forum and contact, customer made ship- the initial sending product to the forum on at least ment to Texas was at the customer’s sole separate three occasions. request expense, parties and the chose govern Indiana law to any disputes. Id. at Salinas, In CMMC v. the Texas Su- 787-793. in Although case, the present preme Court considered whether a state employee the LP apparently made the ini- court could take foreign over a tial contact with appellants, there were merely manufacturer because knew that sales, multiple shipment to Texas ar- allegedly defective product would be ranged paid by appellants, for shipped into Texas. 929 S.W.2d apparently there provi- is no choice of law (Tex.1996). Specifically, the manufacturer Accordingly, sion. present the facts of the in question was based France and was case distinguishable are those Mic- independent instructed an New York hiana. arrange distributor to a freight with for-

warder, paid selected and the dis- In Wenger Royal Tree Service v. Truck tributor, ship pm-chased equipment Equipment, & Alabama Supreme to Texas. Id. at 436-37. The court held Pennsylvania Court considered whether knowledge mere that the equipment specialty subject refurbisher of trucks was was to be and used Texas relation ato was not subject sufficient to the manufac- an sale to Alabama resident. 853 So.2d turer to the (Ala.2002). of Texas courts. finding Again, present facts surprised defendant could not be at being distinguishable: case are courthouse, had haled into an Alabama direct contact with emphasized the customer Ala- that the defendant had estingly, tently adoption the Fifth Circuit has stuck with the followed its of World-Wide Asahi). Here, pronounced Volkswagen rejection

broader stream of commerce rule as See, Michiana, Volkswagen. e.g., in World-Wide Ruston the court did find that the Turbines, Gas Inc. v. Donaldson regardless 9 F.3d outcome is the same of whether (5th Cir.1993) (following 419-20 principles Volkswagen World- in World-Wide or Asahi); Volkswagen rejecting Wide plurality principles applied. and see in Asahi are care, Insta-Mix, Inc., Michiana, ("Whichever also Luv n' Ltd. v. See 168 S.W.3d at 786 (5th Cir.2006) correct, (citing F.3d ultimately Ruston of these standards is Mic stating them.”). and the Fifth Circuit has consis- conduct hiana’s meets none of contract, ownership and risk shipment cus- directly to the Alabama trucks sold LP transferred to occasions, the HDPE negotiat- of loss of separate two tomer on railcars was loaded on directly product the Alabama when the the terms with ed the fact remains the trucks to meet purchaser, customized Texas. shipment specifications, arranged paid and purchaser’s appellants Id. at switched the trucks to Alabama. That risk of loss and to Alabama. case are Texas does not present facts left product 900. The LP before care, Wenger: n’ Luv See substantially analysis. similar to those this change Insta-Mix, Inc., to LP for multiple made sales Ltd. v. appellants 438 F.3d Cir.2006) (“Jurisdiction ne- facility, appellants (5th use in its Alabama ... ‘does not employee an LP based gotiated with title technicalities of when depend on the Alabama, certified that their Scripto, quoting Oswalt passes Cir.1980)).3 (5th specifications, appel- LP’s and product 191,197 met n. 8 616 F.2d ship- paid and the carrier for lants selected con Accordingly, we find ment to Alabama. with minimum contacts duct established HDPE to their sale of regards Alabama in summary, directed conduct LP.4 merely not toward the forum isolated, fortuitous, random, appel- Play and Justice Fair Substantial Michi- this conduct. See profited lants ana, decided that “Once it has been point Appellants 168 S.W.3d at 785. mini- established of a defendant pursuant the fact that to the terms care, present case. baby distinguishable from the bot- cases is In Luv n' a manufacturer of with, general jurisdiction begin is a attempted To each tles to avoid specific jurisdiction case. Am. by arguing purposefully structured its case and not that it 808; Collection, Type 83 S.W.3d jurisdiction in Louisiana Culture conduct to avoid 317-18; Glas, (and states). Zamar Schott other 438 F.3d ron, empha S.W.3d at 144. This fact is Specifically, delivered its the manufacturer Colorado; these cases but also in each of F.O.B. to Wal-Mart sized upon each opinion which possession of the in the Fifth Circuit Wal-Mart then took title and Bearry v. Beech products transported of these cases relies: them to stores Aircraft (5th Cir.1987). Corp., 818 F.2d nationwide. Id. The court found that Additionally, in these prevent other circumstances term itself did not the exer- F.O.B. question sug- that the sales in factors cases demonstrate cise of where other juris specifically to avoid gest proper. were constructed Id. at 471-72. Glas, example, Schott For in Luv n’ care included the diction. The other factors state majority” sales to the forum regularity shipments. Id. The "vast quantity and rep through independent sales an present case are well- were made other factors in the subsidiary. 178 resentative and an indirect in the text. The Luv n’ care discussed the case here. purpose at 314-18. Such is not explained primary further that the loss, (or term) Although passage title an F.O.B. risk of a F.O.B. contract is to allocate jurisdictional may factor in Id. at 472. be a relevant not to defeat certainly factor. analysis, not a decisive it is Despite passage of title in supra note 3. See placed dissent asserts that have not 4. The Texas, appellants made fact remains that emphasis of title in on the transfer sufficient at its manufactur multiple sales to LP for use Type citing American Culture Collec negotia tion, Coleman, ing facility conducted 83 S.W.3d 801 Inc. v. Adame, employee stationed in Ala 2002); an LP tions with 178 S.W.3d 307 Schott Glas bama, product met the their pet. de certified that (Tex.App.-Houston [14th Dist.] in the Alabama manu nied); specifications for use and Zamarron v. Shinko Wire arranged paid for facturing process, (Tex.App.-Houston Dist] [14th S.W.3d 132 denied). to Alabama. shipments from Texas of these pet. However each

854 State, mum juris contacts within the forum plea affidavits attached diction, may Lloyd (president these contacts in Heller light be considered both appellants) averred that company of other factors to determine neither whether the regular conducted “routine or sales in assertion of personal would Alabama.” Based on this and other state comport with ‘fair play jus- and substantial ” affidavits, in ments it is clear that 476, Burger tice.’ 471 King, U.S. 105 appellants do not a strong presence have S.Ct. 2174. The other relevant factors are in Alabama. in with offices (1) frequently stated as follows: the bur- York, least it apparent Texas and New is (2) defendant, den on the nonresident appellants operate that do on a multi-state forum adjudicating state’s interest in Thus, weighs only basis. this factor (3) dispute, plaintiffs interest in ob- slightly against finding that in (4) relief, taining convenient and effective comports with notions of fair judicial system’s the interstate in interest justice. play Regarding and substantial obtaining the most efficient resolution of factor, the second Alabama would certain (5) controversies, and the shared interest ly have an interest in adjudicating dis of the several in furthering states substan- pute in it which is that an out-of- policies. tive social World-Wide Volks- state manufacturer substandard 292, wagen, 444 U.S. at 100 S.Ct. 559. facility to an Alabama for manu When a defendant has facturing inju use in Alabama that caused activity directed at the forum state seeks ry in Genting Alabama. See Ho Wah jurisdiction, present defeat it “must Co., Kintron Mfg. Sdn Bhd v. Leviton 163 compelling presence case of some 120, (Tex.App.-San Antonio jurisdic- other considerations would render 2005, pet.) (holding that Texas had a Burger King, tion unreasonable.” strong adjudicating dispute interest in “[Jjurisdic- U.S. at S.Ct. Texas); injury in arising from sustained may employed tional rules not be in such a Hosp. Español Ex Parte de Auxilio Mu- way litigation gravely as to make ‘so diffi- — Rico, Inc., tuo de Puerto No. party unfairly cult and inconvenient’ that a So.2d —, —, 2006 WL at *5 in disadvantage’ comparison a ‘severe (Ala. 2006) May (holding that Alabama opponent.” his 105 S.Ct. 2174 in strong adjudicating has a interest law (quoting Zapata Bremen v. M/S Off-Shore safety regarding organs suits enter 407 U.S. S.Ct. Thus, ing the for transplantation). state (1972)). L.Ed.2d 513 finding in weighs this factor favor of Having appellants found that es is constitution over tablished minimum contacts with Ala factor, LP Regarding al. the third would bama, turn now to the other factors in presumably litigating have an interest play jus relevant fair and substantial facility the al Alabama since its where Regarding tice. the first additional fac Alabama; problems is in leged occurred tor, them subjecting assert thus, key physical evi witnesses place to suit Alabama a substan would likely would be situated Ala dence they CMMC, tial on in that burden them bama. See Salinas 1995) never conducted business Alabama and (Tex.App.-Austin (stating injury all of their witnesses and documentation cause of giving that since rise to likely would York or Texas. be located New action occurred any not cite and wit Although appellants great majority do evi of evidence state), contention, dence in could found in the rev’d support this his nesses be

855 (Tex. themselves grounds, 929 435 availed appellants on other 1996); protections Power Co. of Alabama Corp., Ala. v. VSL of the benefits (Ala.1984) 327, (stating law, that Ala So.2d I respectfully dissent. fo bama would be the more convenient analysis in disagree majority’s I with the likely rum because the were to witnesses First, quan- respects. quality two there). fac Consequently, be found this Alabama tity contacts with jurisdiction finding tor also leans toward They only ship- minimal. three were sent reasons, it For constitutional. the same Alabama, Texas to and the ments from judicial sys

would behoove interstate buyer initiated without sales were litigation in tem for the to occur Alabama marketing any appellants soliciting or (as injuries that is where the oc authority in Alabama. The business curred); thus, weighs the fourth factor majority distinguishes actually supports finding to be constitu toward that improper the conclusion E.I. tional. See De Nemours & DuPont Salinas, case. in this CMMC Bailey, Co. v. found no based w.o.j.) App.-Beaumont pet. dism’d shipment of one to Texas winepress on the (discussing premise that controversies are Tex- because “CMMC’s contacts with efficiently most resolved where witnesses equip- are that it made sales of as isolated located); likely are and evidence see be here, it knew ment to customers and that also Ala. Power at 329. 448 So.2d being it sold KLR was the machine factor, the fifth Regarding (Tex. 435, 437 shipped here.” 929 S.W.2d identify no that policies substantive social 1996). The sale was an isolated event jurisdiction in suggest would be advertising in any marketing or without and none improper, are evident on the in Id. at 439. followed CMMC Texas. We Accordingly, record. this factor does Hendrix, Systems, C-Loc Retention Inc. lean either direction. agreement in which we held that a sales conclusion, although might single shipments to Tex- occasional inconvenient for appellants been to have insufficient as were to establish litigated they have failed to a lack jurisdiction, particularly light demonstrate such inconvenience rose advertising or other the seller efforts being level of gravely “so difficult” products to direct Texas. 993 S.W.2d they would have at a “severe been (Tex.App.-Houston [14th Dist.] disadvantage” comparison LP. See Last pet.). year, the Texas Su- King, 471 Burger U.S. at 105 S.Ct. holding relied on preme Court CMMC Accordingly, find Alabama’s single of a to Texas was that the sale RV exercise of over did to support an insufficient basis play traditional not violate notions of fair Easy Country, Inc. v. Michiana Livin’ See justice. ap- and substantial We overrule (Tex.2005). Holten, pellants’ sole issue. initiated The court noted the sale was affirm the trial court’s order. We request that the seller buyer’s at the any way not market Texas or did YATES, dissents. J. gear products toward Texas. YATES, Justice, LESLIE BROCK Although cases dif- these three dissenting. case minor factual fer from this some when, details, clearly disagree majority’s they I all indicate Because with the here, to a buyer the sale conclusion that facts of this case show as initiates targeted denying forum that the seller has not court erred in appellants’ plea to of single the volume sales are or occasional best, personal jurisdiction not proper is

because the seller has not

availed itself of the laws of the forum.

Second, majority place does not

enough significance on terms of the contract,

shipping goods which stated that Texas, meaning were F.O.B. own- Joseph Adrienne GALLIEN and ership ap- and risk of transferred to loss Gallien, Appellants, pellants in rather than Texas Alabama. majority views this as a mere “techni- calit[y]” gives it little consideration. WASHINGTON MUTUAL HOME However, this court and the Texas Su- LOANS, INC.; Mortgage Fleet preme Court have held that F.O.B. status Appellees. Corporation, technicality is not a mere but an important No. 06-05-00090-CV. jurisdictional analysis consideration be- a party’s “pur- cause shows efforts to Appeals Court posefully strueture[ transactions to avoid ] Texarkana. protections the benefits of a forum’s Sept. Submitted Collection, Type laws.” Am. Culture Inc. Coleman, (Tex.2002); 83 S.W.Sd Decided Dec. Adame, accord Schott Glas v. 178 S.W.3d (Tex.App.-Houston 317-18 [14th Disk] denied); pet. Zamarron v. Shinko (Tex.App.-

Wire denied). 2003, pet.

Houston [14th Disk]

An prevent F.O.B. term alone “does not exercising personal

court from

over a non-resident defendant where other

factors, quantity regularity such as the shipments, suggest is care, Instar-Mix,

proper.” Luv n’ Ltd. v. (5th Cir.2006). 438 F.3d above, as discussed those other suggest jurisdiction prop-

factors do not

er here.

Thus, ship- based on three Alabama,

ments to which were initiated at buyer’s any request, the absence of products

efforts to direct their showing

and the term a clear intent F.O.B. protections

to avoid the benefits and laws, I trial

Alabama’s would hold

Case Details

Case Name: H. Heller & Co. v. Louisiana-Pacific Corp.

Court Name: Court of Appeals of Texas

Date Published: Dec 7, 2006

Citation: 209 S.W.3d 844

Docket Number: 14-06-00481-CV

Court Abbreviation: Tex. App.