Hall v. Helicopteros Nacionales De Colombia, S. A.

Petitioners, al., HALL, et Elizabeth DE NACIONALES

HELICOPTEROS

COLOMBIA, (“HELICOL”), S. A.

Respondent.

No. C-243. of Texas.

July 1982.

Dissenting Opinion Oct. 1982.

Rehearing Denied Oct.

Helm, Hogan, George E. Pletcher & Houston, Pletcher, petitioners. for Brown, McCamish, Ingram, Martin & Jr., McCamish, Ingram, James E. John Antonio, re- Chasnoff, Barry A. San spondent. REHEARING

ON MOTION FOR WALLACE, Justice. 24,1982, is with- February opinion of

Our opinion is substituted there- drawn for. plaintiffs other

Elizabeth Hall and the (Hall) are survivors the trial court killed four United States citizens working while helicopter in Peru crash Hall constructing pipeline. country Helicol, operator of owner and sued crashed, County, in Harris helicopter which action. separate causes of four special Texas, Helicol appearance designated agent entered in each office in had no actions, Texas, to contest process service of was not autho- pursuant 120a, the Texas court Texas, to Rule Tex. performed rized to do business in no R.Civ.P., Texas, all of which were overruled helicopter operations in and did not respective trial courts. The four actions employees recruit in Texas. were consolidated for resulting trial in a question, The deceased workers here in

judgment for Hall. ap- The court of civil residents, were not Texas but were all Unit- peals reversed judgment of the trial They ed States citizens. were hired court and ordered the case dismissed for Williams-Sedco-Horn, Houston, Texas, jurisdiction. lack of 247. We S.W.2d pipeline. and sent to Peru to work on the reverse the judgment of the court of civil were The workers killed in the crash of a appeals and affirm the judgment helicopter, operated by Bell owned and Hel- trial court. Peru, icol in during transportation their

The only issue before us is whether under pursuant to the contract between Helicol action, the facts of this cause of was Helicol and Williams-Sedco-Horn. amenable to in Texas. There- contract, negotiating In addition to

fore, this Court must decide whether Helicol all following committed of the acts trial court’s exercise of in Texas: Helicol was require- consistent with the a. substantially Purchased all of its heli- ments of due of law under Texas; Worth, copter fleet in Fort Constitution of the United States. $4,000,000 b. approximately Did worth Peru, Worth, Texas, Petro the Peruvian of business in Fort state owned oil company, made a through purchaser contract from 1970 1976 as Williams-Sedco-Horn,1 (referred equipment, parts to as and services. Consorcio in their contract), joint spending average venture This consisted of Houston, Texas, based in $50,000 per construct a month with Bell Heli- pipeline from the interior of Peru to the copter Company, corporation; a Texas defendant, Helicol, Pacific Ocean. The Houston, Negotiated c. Harris Coun- brought project into the by Williams-Sedco- ty, resident, with a Texas Horn to provide necessary transportation of negotiation resulted in the con- workers and supplies, by helicopter, to re provide helicopter tract to service gions where there were no roads. Helicol involving leading the crash to this was originally contacted a Williams ex (previously cause of action men- ecutive who had contracted with Helicol in tioned), agreed and wherein Helicol the past. contact, In response to that liability payable obtain insurance general manager of Helicol flew to Oklaho American dollars to cover a claim ma, and proceeded Houston, then such as this. members, negotiate with the three Worth, d. pilots Sent to Fort Texas to joint venture. After reaching agreement pick up helicopters pur- were on all Houston, terms of the contract Helicopter fly chased from Bell those terms were related to Helicol’s office Columbia;- them from Fort Worth to in Peru. The contract in its final form was personnel pi- e. Sent maintenance approved by the Peruvian Air Force as re trained; lots to Texas to be quired law, Spanish Peruvian typed by representatives executed all par employees year- f. Had in Texas on a ties in basis; Peru. Helicol did not maintain an round rotation Tulsa, Oklahoma, joint Corpo- Williams-Sedco-Horn is a venture com- Sedeo Construction posed ration, corporation, Williams International Sundamerica- a Texas and Horn Interna- na, Ltd., corporation Inc., headquartered tional, corporation. a Delaware a Texas Lanpar $5,000,000 Company, O’Brien

g. roughly under S.W.2d Received (Tex.1966). That three-prong test is: provisions the terms and pay- question here which tract (1) foreign nonresident City were ments made from First must corporation purposefully do Texas; Houston, National Bank act or consummate some trans- some state; action in the forum h. First National City Directed the from, (2) the of must arise cause Houston, pay- Bank of Texas to make with, act or be connected Helicopters to Mountain Rocky ments transaction; and to question. the contract in pursuant (3) assumption jurisdiction by the of the (Involved helicopter leasing large of a not tradi- forum must offend capable moving of loads for heavier play notions sub- tional of fair Williams-Sedco-Horn.) justice; being consideration stantial We hold that these contacts constitute nature, given quality, to the and ex- sufficient minimum contacts to find Helicol activity the in the forum tent of the the Texas amenable to of state, relative the convenience courts. protection parties, the benefits the laws of the forum state afforded par- this all their briefs before respective and the basic parties, ties agreed opinion that our in U-Anchor equities situation. Burt, Advertising, Inc. v. 760 S.W.2d (Tex.1977) disposition of controlled the this prong of the O’Brien test second case. must requiring the cause of action that forum arise out of the contacts U-Anchor, we stated: state, contro- subject has been some provides 2031b that a nonresident Article adopt- versy the O’Brientest was ever since entering into a contract with a Texas any fact prong ed. The second is useful in performable part either resident jurisdiction question situation in which a in Texas shall be deemed to party be exists; necessary requirement is a agree doing business in Texas.... We only where the nonresident in this as well with the respect, that as with the single or contacts maintained few respect to ‘other constitute acts However, prong is un- forum. the second business,’ 2031b reaches

doing Article necessary the nonresident defendants when require far as the constitutional federal through presence numerous forum process permit. due will We let ments of case, nature, as contacts of such a in this is Hoppenfeld the statement stand so as to the demands the ultimate satisfy Crook, (Tex.Civ.App.— 498 S.W.2d 52 through process. Accordingly test of due e.) n. r. Austin writ ref’d ‘that the of Art. 2031b Tex. statutory authority only reach of Art. 2031bis limited single there remains the Rev.Civ.Stat.Ann. ... Fur United States Constitution.’ jurisdiction con- inquiry: is the exercise thermore, such a construction is desirable proc- of due requirements sistent that it allows the courts to focus Consti- ess of law the United States under process constitutional limitations of due into inquiry frequently put tution? This is engage rather than technical and process re- following terms: “... due attempts consistently define abstruse a de- subject quires only that order ‘doing business.’ if he be judgment personam, fendant to a territory fo- opinion specifi present In the U-Anchor we not within the rum, he minimum contacts cally adopted language from have certain above U-Anchor, Hoppenfeld. maintenance of Also in this Court with such that the approved the test set out in does offend notions three-prong suit traditional justice.” fair Hall’s interest in effective and convenient play substantial Interna- Washington, tional Co. v. 326 U.S. relief. Shoe L.Ed. adjudicating an interest in this Texas has quoting Meyer, Milliken v. 311 U.S. resident, dispute. is not a Texas but is Hall (1940). 85 L.Ed. 278 importantly, a citizen of More country. defendant and the forum must

erated supra. the U. the defendant: tion to it is brought Recently ened inquiry at power (1977); the L.Ed.2d in cating Heitner, plaintiff’s 1696], adequately will in an appropriate case be considered ing nient and effective California Superior tional Life Ins. Woodson, “reasonable ... ... while light 92, the forum The U. S. S. defend the In there.” at to choose the 56 L.Ed.2d parameters into other Court 223, 683, looking least 433 U.S. (1980) World-Wide dispute, the relationship other relevant interest interstate protected 78 always stated that Citing, Supreme when that State’s S.Ct. particular to this to require 132, see McGee v. Interna- 186, forum, in Court, 355 relief, 199 “relevant judicial system’s International by the plaintiff’s interest Court Volkswagen primary obtaining Court has broad ^[201] U.S. 211, reasonableness, factors, interest the burden on [436 cf. see suit [2583, between the the (1957); Shaffer n. in such that Kulko v. factors.” which U.S. concern, corpora adjudi- 37, includ- conve- n. is not Shoe, allow Corp. reit 37] 84] [at in- 53 ing 2 the State’s interest state, redress, from the ficiary 355 (1957). McGee, The defendant’s had been its suing sidered the obtaining (See fundamental McGee v. olution of state companies, ing the headquarters interest in Superior liams-Sedco-Horn). that this forum has an interest sary Hall was hired in Hall has a maintenance parties U.S. above U. S. a Texas insurance and judicial system,” addressed resident. under light employees and Court, 220, International its convenient and decedent. The obtaining controversies quote, and plaintiff’s Supreme only genuine receipt mailing the fact a life 78 substantive as a supra.) based the relative convenience of the fact of the citing S.Ct. It contact countless of its “residents” California resident Houston, Texas, by a insurance member cannot interest and their Court interest suit California providing 199, premium company Life Insurance Kulko v. California this most and in effective relief. especially U. social decision 2 be an State of the “inter- policy directly efficient international policy. L.Ed.2d 223 S. involved in in protect- furthering questioned as a California individual payments effective desire policies. has an allow- neces- is the bene- (Wil- con- The was res- Co., on in in obtaining terest the most efficient res- claimant could overcome difficulties controversies; olution and shared maintaining an a foreign action in forum of the interest several States in further- making company “... thus in effect ing poli- fundamental substantive social at judgment proof.” 355 U.S.

cies, Superior recognize see Kulko v. 201. the incon- California at did defendant, supra, venience this on the at 56 L.Ed.2d worked defendant, but based the contacts of the S.Ct. 1690 [at 1700]. would not be offended. Admit- Woodson, Volkswagen Corp. Worldwide with- tedly precisely this does not fall cause 100 S.Ct. at 564. There- McGee, fall within its facts of does fore, inquiry go our the sub- beyond can spirit. Helicol stantial contacts which maintains and we also look to of the this State’s Based on the considerations above adjudicating looking requirements interest dispute; discussion and test, of the U-Anchor we find that Helicol’s single exception of the with the Oklahoma numerous and substantial contacts do con- car involved. Id. at 100 S.Ct. at “doing stitute business” State Thus, car driving holds that World-Wide the trial court’s do actions not offend due is not such “minimum through a state process. give tacts” against a York seller. New judgment ap- the court of civil peals is reversed and the judgment decision, reaching this the U. Su- S. trial court is affirmed. preme Court stated: activity no whatsoev- carry on Petitioners CAMPBELL, Concurring opinion J., no They close sales er Oklahoma. McGEE, J., joins. They services there. avail perform no POPE, J., Dissenting opinion by in which privileges themselves none J., GREENHILL, BARROW, J., join. C. They law. solicit benefits of Oklahoma through salesper- no business there either CAMPBELL, Justice, concurring. reasonably through advertising sons opinion by I with the concur result does calculated to reach the state. Nor reasons. for these additional Justice Wallace sell regularly they show that record retail to Oklahoma cars at wholesale or Volkswagen in World-Wide The issue or that indi- or residents Woodson, customers 444 U.S. Corp. v. others, or seek to “whether, serve rectly through 62 L.Ed.2d short, In market. serve the Oklahoma process clause consistently with the due Amendment, jurisdiction seek to base respondents an Oklahoma the Fourteenth whatever in- and jurisdiction one isolated occurrence in may personam court exercise retailer and can be drawn therefrom: automobile ferences over a non-resident single products liabil- that its in fortuitous circumstance wholesale distributor action, only automobile, New York to sold in ity when defendants’ Audi residents, that an happened is the fact to suffer with Oklahoma New York nection New York through in York to sold New Okla- passing automobile an accident while in automobile involved residents became homa. 287, 100 in Id. at

accident Oklahoma.” 444 U.S. at 100 S.Ct. at 62 L.Ed. before question S.Ct. at 562. 2d at 500. whether, consistently with the to the facts language that same Applying Amend- of the Fourteenth process clause case, Helicol carries of this I would write: person- in ment, exercise a Texas court They on much in Texas. close business provider over a non-resident am purchases helicopters spare and many of' services, defendant’s helicopter when the parts negotiate Texas. contracts were all those connections with Texas of Bell They regularly secure services Wallace. opinion Justice listed repair Helicopter training pilots their World-Wide, in Tex- They no evidence solicited business there was technicians. distributor, to Houston sending representative or World-Wide its retail that Oklahoma, negotiate with Williams-Sedco-Horn. any did business in Seaway, regularly heli- buy or any or The record shows products sold shipped there, seek in Texas and state, copters spare parts agent had an to receive training employees. any media their Texas services or advertisements purchased During They directly oral secure services reach calculated to Oklahoma. Court, markets, Tex- employees maintain Supreme the U. S. arguments before sent year-round no as on a basis and 26 times there was plaintiff’s attorney conceded to Texas. This company ever sold officials of their showing that automobile In this activity has continued since 1970. World-Wide Seaway had ever entered multi-million dollar business in Heli- ^[161] 161 A.L.R. 1057], Implicit in this col has availed itself of privileges emphasis on reasonableness is the under- short, standing benefits of Texas the burden peti- law. our on the defend- ant, concern, always while a primary tioners seek to will base on many appropriate in an ease be considered significant contacts in reflect a factors, light of other relevant including continuous general presence in Texas. adjudicating the forum interest in State’s Court, World-Wide, U. S. dispute, see McGee v. International addressing jurisdictional problem Life Ins. [223,2 U.S. 220 L.Ed.2d However, between states.' we do not have (1957); S.Ct. plain- 201] problem the same as World-Wide. We do obtaining tiff’s interest in convenient and not have dispute be- relief, effective see Kulko California coequal tween sovereigns in a federal sys- Superior at 92 [436 U.S.] [56 tem. We are deciding jurisdiction between L.Ed.2d 1696], at least countries; as to citizens of the United when that interest is not adequately pro- States and a resident of Colombia. There- plaintiff’s power tected to choose fore, process” “due in this case must be forum, Heitner, cf. Shaffer v. universal in its application. 186, 211, n. 37 L.Ed.2d [53 (1977); n. the inter- Now, 37] let us look at what World-Wide said judicial system’s interest obtain- about “minimum contacts” and reasonable- ing the most efficient resolution of con- ness states, of the “forum” among the troversies; and the shared interest of the apply those tests to our facts: several in furthering States fundamental The concept contacts, of minimum policies, substantive social see Kulko v. turn, can related, be seen to perform two Superior Court, California [436 U.S.] but distinguishable, functions. It pro- 1690 at [56 tects the against the burdens 1696, 1700], of litigating in a distant or inconvenient 291-92, 444 U.S. at at 564. forum. And it acts to ensure that States, through courts, their do not reach The contacts of Helicol Texas were not “minimal,” out beyond were It is imposed limits on them “substantial.” by their not unreasonable to require company statutes as a coequal sovereigns in a expertise business, in international as system. federal Helicol, to a defend suit a state where it protection The against inconvenient lit has conducted multi-million dollars of busi- igation is typically described in of terms However, ness. it is unreasonable to re- “reasonableness” or “fairness.” We have quire seeking the widows and children relief said that the defendant’s contacts with go foreign country prosecute here to to a to the forum State must be such that main their action. tenance of the suit “does not offend ‘tra This Court has an in adjudicating ditional notions of interest play fair and substan ” the dispute of these United justice.’ tial States citizens. International Co. v. Shoe They power do have the to select anoth- Washington, at L.Ed. [326 U.S.] 316 [90 er state but must be to 95, foreign removed a 154, 161 66 S.Ct. 1057], A.L.R. quoting country. This Court has an in as- interest Meyer, Miliken v. U.S. 463 [85 suring plaintiffs these convenient obtain L.Ed. [342], S.Ct. 339 132 A.L.R. relief, and effective at least when that in- (1940). The relationship 1357] between protected by terest is not adequately the defendant and the forum must be plaintiff’s power forum to choose the coun- it is “reasonable require ... to try. the corporation to defend particular suit which is brought there.” U.S. process” “Due rigid, unchanging is not a [326 310], at 317 L.Ed. 66 S.Ct. 154 rule always [90 that courts could determine if it held insurer is amenable unchanging concept formula. The of to suit designed

“due is meet the test California where it had this contract but process” rights certainly nothing which amounts protect and to to a denial change 1980’s, process.” at at due 355 U.S. 78 S.Ct. American citizens in the it did my opinion, the inconvenience to when the Constitution was written. Helicol, considering con World-Wide, their substantial it was stated: certainly nothing which is tacts limits imposed The state process. amounts a denial Clause, Due in its role as a Process litigation, guarantor against inconvenient Denckla, 357 U.S. In Hanson v. substantially have been relaxed over the 1283 (1958), the Su 2 L.Ed.2d we years. As noted in Interna- McGee require preme Court, explaining Co., supra Life tional Ins. process, [355 U.S.] of due stated: ments 222-223 201], [2 activity of those who claim unilateral The largely this trend attributable de- with a non-resident relationship some fundamental transformation requirement of satisfy the fendant cannot economy: American appli- contact the forum State. “Today many commercial transac- vary with the of that rule will cation touch tions two or more States and ac- nature the defendant’s quality and parties separated by involve in each case tivity, but it is essential increasing full continent. With this the defendant be some act there has privilege nationalization of commerce come avails itself purposefully great in the increase amount busi- within the forum conducting activities across State, pro- ness conducted mail invoking the benefits and thus lines. At the same time modern trans- [Emphasis tections of its laws. added]. portation have and communication at 1239. 357 U.S. at made it much less burdensome for Inc. Advertising, U-Anchor sued himself in party to defend State Burt, (Tex.1977), tested 553 S.W.2d he engages where economic activi- jurisdiction of Texas courts over ty.” by stating: Oklahoma resident developments noted The historical are with Texas contacts of Burt [T]he McGee, course, have only accelerated fortuitous, he cannot minimal and generation since that case ac- conducted “purposefully” to have said decided. Burt’s contacts tivities within State. 292-93, at 564-65. grounded on with Texas were not quote applicable invoking from McGee is as necessity of expectation or law, to the facts of case-as was McGee protections benefits and Today many profit in designed facts. It could be written: to result they nor were touch two or more undertaken commercial transactions from a business transaction solicited, ne- separated was may parties countries and involve Texas. The contract Oklahoma, or this increas- gotiated, continents oceans. With and consummated or to to indicate ing nothing of commerce has Burt did internationalization and to any purpose of support of an inference great come a increase in the amount doing business privilege of exercise the by mail and satellite business conducted was stated, passive Burt a Simply Texas. across lines. communications continental nei- who corporation customer of a transportation At the same time modern initiated, from profited nor sought, ther have made it much less and communication with contact single fortuitous his and burdensome for sued to him- party defend Texas. in eco- engages self in where he country activity. nomic at 763. 553 S.W.2d using test and Applying stated: “Of the U-Anchor The McGee court further con- find Helicol’s language, the I be inconvenience to the U-Anchor course there fortuitous, negotiated tacts are and agreement numerous not as and made its with Houston, Helicol activities Texas. purposefully conducted Williams-Sedco-Horn facts, The true of within the stated court state. Helicol’s contacts with civil are appeals that Williams-Sedco-Horn grounded Texas were expectation, or was not party who contracted either of necessity, invoking pro- benefits and with the oil company Peruvian with Heli- law; tections and were de- undisputed that testimony col. The was signed profit to result from a business Peru forbade contract to construct transaction undertaken in Texas. any pipeline corporation unless it tracts and contacts were or negoti- solicited contract, company. a Peruvian written ated in Texas and some consummated in Spanish approved by the govern- and therefore, activities, Texas. Helicol’s did ment, Consorcio, was with Peruvian-based more support than indicate or an inference not The parties Williams-Sedco-Horn. of purposefully exercising privilege helicopters contract for the were Con- doing business in Texas. Helicol was an ap- sorcio and Helicol. The court civil active customer corporations of Texas peals so that found enforced finding companies initiated, who sought, hope- its further paragraph reference to 19 of the fully profited many from its purposeful contract, states, that words of contacts Texas. court, Lima, agree all parties “that Peru, is the residence related for all McGEE, J., joins in this concurring opin- contract parties submitted to ion. of Peru.” The court of civil appeals significant made these other find- POPE, Justice, dissenting. ings: I respectfully dissent. The dis- former business, It does not conduct ad- [Helicol] opinion senting down July handed vertise, perform any helicopter nor opera- is withdrawn. The survivors of four non- tions in Texas. It has never had a Texas residents who airplane were killed in an charter has it nor ever had a contract to crash the jungles Peru, have sued the perform any work in Texas. Helicol’s Houston, defendant Helicol operations are solely Texas. Heli- based in South col is a resident America. It is corporation Colombia, difficult conclude that any Helicol expectation availing South had America. plaintiffs, Neither the itself of decedents, protections the benefits and defendant, nor the tort ac- the law state of Texas. We can any tion have connection with Texas. The find no indication that Helicol intended court makes Texas the courthouse for the make a profit from business deal world, requiring only plaintiff undertaken Texas. Product Promo- show purchas- that the defendant had made tions, Cousteau, Inc. v. 495 F.2d 483 es of supplies from some unrelated business 1974). located disagree in Texas. I with the opinion, court’s because it is grounded

upon the correct facts and because our Requires Article 2031b Nexus to long-arm statute only reaches to “causes of Business Done in This State. arising out business done in expressly requires Article 2031b a nexus this State.” art. Tex.Rev.Civ.Stat.Ann. helicopter between and the con- crash 2031b. upon justify jurisdiction. tacts relied The nexus in Texas is found requirement mistakenly says court that Williams- wording the clear of the statute itself. Sedco-Horn, Sec- venture, a joint provides: tion 3 of article 2031b party that contracted with the Peruvian owned company, opin- association, oil Petro Peru. The Any foreign corporation, says also joint ion Helicol company, partnership, stock or non- 878 the defendant has had “certain mini- person engages in when natural

resident State, any mum contacts ... such that the mainte- irrespective business this of nance of the suit does not offend ‘tradition- designation or or respecting Statute law jus- play al notions of fair and substantial agents, maintenance of resident does ” Id. 66 at 158. tice.’ at place not of regular maintain a business effect than the standard was broader its designated agent upon in this or a State employed statutes then in most “long-arm” may upon whom service be causes made states, states, including Most like Texas.2 of of arising action out such business Texas, responded to the action of Su- State, done in this the act or acts of enacting preme by statutes aimed in such within the engaging business advantage taking expanded limits of shall be deemed to an equivalent State jurisdiction. While the reach of a potential corporation, appointment by foreign such always could be coexten- particular statute association, joint company, partner- stock sive with constitutional confines outlined ship, person or nonresident natural states were not com- agent Secretary of' State of Texas as jurisdiction that far. pelled to assert See upon process may be whom service Benguet Mining Perkins Consolidated action, in any proceedings made suit or 96 U.S. out such done in this arising business Sonatrach, Prejean v. (1952); L.Ed. State, joint such corporation, wherein Inc., 1981). 652 F.2d association, partnership, stock company, advantage states took full Some person party or non-resident natural a See, e.g., allowed. range of or is a party. to be made 48.081(5)(allowing jurisdic- Fla.Stat.Ann. § 2031b, (em- Tex.Rev.Civ.Stat.Ann. art. 3§ tion over unrelated causes of action when a phasis added).1 office” foreign corporation has “business was enacted in the wake of Article 2031b engages in the state and transaction Washington, International Co. v. Shoe there); of business 801.- § Wis.Stat.Ann. L.Ed. 95 05(1) (jurisdiction over unrelated causes greatly expanded jurisdictional an carries permitted when individual potential of the various states. Su- on “substantial and not isolated activities” preme state). Court reasoned in International Shoe Interstate in the See also Uniform a non- 1.02 the exercise of Procedure Act § International (jurisdiction may asserted as to unrelat- process resident defendant satisfies due mail, place registered requires business return 1. Section of article 2031b also nexus, although receipt requested. was not the basis section 2031b, present (empha- for exercise of case. art. 2§ Tex.Rev.Civ.Stat.Ann. provides: added). Section 2 sis association, any foreign corporation, When August 2031b effective Article became joint company, partnership, stock or non-res- time, general had no 1959. Prior to that person, though required ident any natural Instead, jurisdictional jurisdiction was statute. designate Statute of this State to statute, upon Tex. based a nonresident motorist agent, engage maintain shall business 2039a, upon State, several any Rev.Civ.Stat.Ann. art. in this action in which such specific applying corporation, joint company, statutes circumstances, to nonresidents stock associa- tion, partnership, per- Ann. such as Tex.Ins.Code arts. or non-resident natural 3.65, 3.66, 6; Tex.Bus.Corp.Act party party arising son Ann. is a or is be made a 21.38 § business, 2.11, 8.10; Corp.Act out of such be made Ann. service Non-Profit arts. Tex. serving who, person 8.09; copy arts. Tex.Rev.Civ.Stat.Ann. art. service, charge 2031a, 2032, 2033, Thode, at the time of is in In Per- 2033b. See 2031b, Jurisdiction; business in which the defendant or de- The Texas sonam Article State, provided engaged Statute; in this Ap- fendants are copy “Long And the Arm” Jurisdiction together process, of such notice pearance Challenge in Texas Jurisdiction upon person charge such service such Elsewhere, n.165 42 Texas L.Rev. and (1964) be sent to business shall forthwith as Thode]. cited [hereinafter principal defendant or to the defendants [sic]

879 express ed Jurisdiction causes of action when a has statutes the limits of interest, principal place state), his in acquiring jurisdiction business a state’s Texas and other states wrote more restric- over defendants.4 Article nonresident interest, arising tive to require- statutes. included 2031b limits Texas’ suits ment to jurisdiction limited to this state.5 A desire be out acts done in activity.3 causes of for arising from local nonresidents unre- gain over 235, Denckla, 252, requirement suit. v. 357 The nexus of article 2031b was Hanson 1228, U.S. 1239, original contained in the of the act 78 2 L.Ed.2d version S.Ct. 1283 unchanged distinguished previous has there of McGee remained since enact- case Comment, Co., Long-Arm ment. The Stat- v. Insurance 355 U.S. International Life ute, Due, 220, 199, (1957), by 2 Article 2031b: A Is 78 L.Ed.2d New Process 30 S.Ct. 223 747, (1976). thought stating: Sw.L.J. 747 The statute adapted to have been from the 1947 Vermont This different in that case is ... from McGee statute, “long-arm” contains also a nex- special legisla had there the State enacted requirement. pertinent portion us of that Act) (Unauthorized tion Insurers Process to provides: statute in exercise what McGee called its “manifest foreign corporation If providing a a contract makes terest” in effective redress citi performed injured by a resident Vermont be to zens who had been nonresidents part by party activity in mont, engaged whole inor either in Ver- in an that the State treats as foreign corporation subjects exceptional special regula or if such commits to a part against Virginia, tort in whole or in in Vermont tion. Cf. Travelers Health Assn. v. Vermont, 643, 929-930, 927, resident acts shall such be 339 U.S. 647-49 [70 S.Ct. Goodman, doing Doherty deemed be 1154]; to in Vermont .. business . 94 L.Ed. & Co. v. 554, equivalent 553, ap- and pointment shall deemed to the 294 79 L.Ed. U.S. 627 [55 Pawloski, secretary 1097]; ... of the of state of 274 352 Hess v. [47 1091], Vermont to ... be its lawful true and attor- 71 L.Ed. ney upon may Superior whom all See be served lawful also Kulko v. California any 84, 98, 1690, 1700, proceedings actions or . .. 436 U.S. 56 arising growing (1978) (“California attempted from or out of such contract has to any trying tort particularized .... assert interest in Thode, quoted by, e.g., special title enacting Vt.Stat.Ann. supra § cases in its courts added). (emphasis jurisdictional statute.”); Light at 305 n.167 Other Iowa Electric adopted provisions Corp., statutes with similar in- and (8th Atlas Power 603 F.2d Co. 17(1); Comment, Federalism, 1979); clude: Ill.Rev.Stat. ch. Md.Ann. § Due Code, Process, Proceedings, Courts Judicial 6§ and Minimum Contacts: World-Wide 103; 302; Woodson, Volkswagen Corp. N.Y.Civ.Prac.Law and Rules § Ohio Colum.L. (1980). Rev.Code Ann. § 2307.382. See also Precision Rev. Polymers, Nelson, Inc. v. 512 P.2d way legisla- saying (Okla.1973) This is 12, 5. another that the (construing Okla.Stat. title expressed providing 1701.03): ture has interest §§ injured by forum for state residents who are holding ap- Under the above if does not performed pear activities of within the nonresidents plaintiffs from the record that cause of boundaries, require state’s to that the non- upon action arises out of or is based the same injuries resident bear the costs of caused alleged jurisdic- acts of defendant to confer their defendant, activities in the state. That these consid- personam tion plaintiff of the drafting erations were factors provisions provisions not invoke the su- § pra, acquire 2031b is reflected indirect- article of defendant. ly legislative in one call for ac- holding commentator’s harmony language This is in prior tion See the enactment statute. application § which limits its “to Wilson, In Personam Jurisdiction Non- Over arising, cause of action shall or which have Proposal, arisen, Residents: An Invitation and a Baylor doing any” from of the acts therein (1957). proposed L.Rev. 363 draft enumerated. of a statute included Professor Wilson his requires The Oklahoma statute a nexus not- requirement article contained a nexus identical withstanding the fact that act has been pro- to the in article one found 2031b. construed extend to constitutional limits. posed draft is considered some have See Jack Roberts v. Richards Aircraft served for the as a model first five sections of (Okla.1975). P.2d Thode, adopted legislature. the statute 4. The United States supra Court has fre- at 303 n.151. quently looked to statutes to deter- expressed mine the extent of a state’s interest acquiring jurisdiction particular law- purposefully do some act poration must from activities outside arising lated actions transaction in the or some history of consummate the state is not reflected state; (2) of action must the cause act’s clear and unam- forum or the the statute with, from, connected such act or be wording. Certainly, legislature the arise biguous transaction; assumption (3) and the or language drafted the statute could have must not jurisdiction by the forum state its effect to the full expressly extending Constitution, play and as notions fair permitted the it offend traditional extent being justice, consideration (permit- did in Tex.Fam.Code Ann. 3.26 substantial § nature, and extent given quality, a non- to the ting the exercise of state, the activity “if is basis the forum respondent resident there the parties, of this state the consistent with the constitution relative convenience laws or the for the exercise of the protection United States benefits and personal jurisdiction”), par- or have left respective it could forum state afforded ties, as Tex.Bus. of the situa- requirement, equities out nexus and the basic (providing for ser- Corp.Act Ann. art. 8.10 tion.” au- process foreign corporations vice of on Burt, Inc. v. Advertising, U-Anchor state). transact business thorized to (Tex.1977) the next time was S.W.2d however, action, we legislative Absent such U-Anchor, subject. on this this wrote court provisions of article must enforce the clear a contract solicited corporation, a Texas generally 2031b as written. See presently place to Burt in Oklahoma Burgess, Fox 157 Tex. along Oklaho- advertising displays points at (1957); 2A 5.W.2d Sutherland pay agreed Burt to U-An- highways. ma Statutory 46.04 ed. Construction § to 36 months and chor a month for $80.00 1973).6 office in payments at U-Anchor’s make court hold that prior opinions Two this Amarillo, We held that U-Anchor’s Texas. cases, the nexus was in both it required and against Burt satisfied cause of action Compa- present. Lanpar was O’Brien We requirement article 2031b. nexus (Tex.1966) up- we 399 S.W.2d ny, wrote that was “connected judgment against held an Illinois default Burt obligation assumed tractual O’Brien, corporation a nonresident Texas 762. performable in Texas.” Id. at partially em- president to Illinois and whose went however, be held, Burt could not We We plaintiff attorney. as its ployed to failed Texas because U-Anchor sued in requisite three-prong then stated requirements satisfy the first third jurisdiction over a nonresident: to re- O’Brien, As the first supra at 763. “ * * * Burt’s contacts (1) we held that quirement, be: appear would to Such conduct- purposefully cor- foreign or with Texas were The nonresident defendant statute, process, that time be- was at It has that the article been contended nexus, require 2031b, always originally we cannot lieved was enacted extend “long-arm” jurisdiction would have extended full limits al- drafters assume Shoe, that, limits had the true if con- constitutional lowed statute to after International known, limits were actually when the been stitutional limits were broader than the limits believed, legislature willing expanded. Perhaps legislature was then or if those limits have expanded, scope limits 2031b to constitutional since been the statute’s should to extend article only Finally, required. long enlarged a nexus was likewise to the so be order reach possible. argument in other states statutes drafted enacted maximum extent defective, First, however, written 2031b was that article for several reasons. near time authorizing provisions exercise v. Ben- article 2031b was after Perkins contained enacted Co., supra, guet Mining causes over unrelated Consolidated instances, cases, indicating could, that at least some held exer- some that states rare legislatures an exercise ac- the idea that such causes of had cise over unrelated See, e.g., 445-47, jurisdiction was constitutional. at 418-19. tion. 342 U.S. Proceedings, Second, Md.Ann.Code, assuming Judicial Courts and even that article 2031b 6-102; 801.05(1). initially with due § intended to coextensive Wis.Stat.Ann. § These Concerning “doing ed activities within Texas. the Beech. contacts constituted Texas, requirement, third we held that Burt’s mail- business” in but the court concluded ing payment jurisdiction of checks for to U-Anchor in that in Texas could not be as- Amarillo was a minimal contact. In con- serted because the activities were unrelated contacts, upon. They to the cause not have trast with those few we wrote sued did solicitation, “slightest relationship causal with the negotiation that and con- wrongful decedent’s death.” Id. at 1270. summation of the contract Oklahoma reasonably expect showed Burt might Enterprises, In Fox Inc. v. Air Jim governed by enforcement to be Oklahoma France, (5th 1981), the 664 F.2d 63 Cir. rather than Texas law. defendant, France, doing Air “a thriv- ing in Texas.” Id. at 65. It had a business than in There is more reason here U-An- at Houston’s Intercontinental ticket office deny jurisdiction. chor to The four Airport and district sales office down- plaintiffs worked for Consorcio. telephone town. It listed six local numbers Billings tract fixed in Peru. telephone directory, in the Houston leased work had to Helicol be made to Consor- estate, employed Texas real Texas resi- U-Anchor, cio in Peru. In we held that dents, paid employment per- passive Burt was no more than a customer property receipts sonal taxes. Gross from instance, corporation, of a Texas in that passenger ticket sales Texas totalled in very party case, who was sued. In this Nevertheless, excess of million. $59 however, pulled Helicol has been from Peru Jim recognized court Fox that article to Texas because it has been a customer of requires 2031b a nexus between the cause Bell Helicopter in Fort Worth. It had Texas, of action and the contacts with transactions with a company way that in no contacts, being that Air France’s unrelated was connected with litigation. U-An- action, to the cause were insufficient chor support majority opinion. is no for the jurisdiction. support The majority opinion disregards the stat- case, Investments, In another Placid Ltd. utory requirement may brought that suit be Bank, (5th v. 662 F.2d 1176 Girard Trust against foreign corporation “upon causes 1981), undisputed Cir. it was the de- of action arising out of business done fendant did business in Texas. As noted in this State.” court, the defendant maintained bank 2031b, The construction article here Texas, estate, real accounts owned Texas urged, conforms to that of the Fifth Circuit and received revenue from Texas sources. Prejean several recent decisions. v. contacts, Id. at 1178. None of these how- Sonatrach, Inc., (5th 652 F.2d 1260 Cir. ever, “gave rise” to the cause of action. As 1981), Beech, defendant, one had extensive result, concluded, the Fifth Circuit Texas, contacts with all unrelated to the relationship requirement causal or nexus cause of action. were These contacts simi- met, article 2031b was not lar to Helicol’s activities in but were could not be asserted. much more example, extensive. For Beech Due Process entered into an million subcontract $11.1 with Bell in Fort Worth for Helicopter gen- established a When defendant has production assemblies, state, of airframe and had presence eral business charac- produced continuously these for Bell since and continuous ac- terized “substantial 1967 under exceeding may contracts million. take tivity,” $72 addition, Id. at 1270 n.19. Beech had over the defendant for unrelated causes two employees residing conducting Benguet action. Perkins Consolidated 438, 445, Co., corporation Mining supra business Texas. A local at U.S. 419; owned wholly by the defendant had sold 72 O’Neal v. Hicks Co., and serviced Brokerage aircraft manufactured 537 F.2d Cir. of an “insider” in the forum that Parke, Co., enough Davis & 1976); Seymour 1970); (1st W. H. to the state’s safely relegated F.2d 585-86 he Products v. Nuodex Brilmayer, Elliott Go. How Con- political processes. & Sons denied, Cir.), (1st cert. 243 F.2d on Limitations Due Process tacts Count: (1957). 2 L.Ed.2d 38 Jurisdiction, Sup.Ct.Rev. State Weintraub, Commentary also R. See posi- of such a (1980). Achievement 1980); (2d ed. Restate of Laws 145 Conflict than more of the defendant requires tion 35(3) (Second) of Laws ment of Conflict § Instead, the defend- “minimum contacts.” (1971).7 close substantial must establish some ant approaching the the state connection ac- “substantial and continuous The term the state and its own relationship between in meaning when used tivity” has a distinct upon such exception It was suggests It residents.8 process. context of due operating its cor- defendant the rule —the defendant’s corporate the individual or that pay upon claims on placing emphasis refuse to insur- dent insurers 7. The reason for State, they have solicited that action has to do ance tacts related to the cause of jurisdiction upheld the suit in as- because to show a state interest Court the need suming jurisdiction a contract which had substan- the nonresident de- “was based on over contrast, Publishing In explained with that State.” Co. tial connection fendant. As Curtis 344, validity agree- Birdsong, of an this action involves the v. F.2d 346-47 360 any 1966): connec- entered without a rational nexus be- ment that was “There must be giving tion with the forum State. events rise to tween the fundamental Contrary conclusion on rehear to this court’s the forum State cause of action and gives adjudicating litiga- ing interest in that Texas has an interest in the that State sufficient plaintiffs may constitutionally compel are United liti- this case because tion it before citizens, that state gants foreign cases demonstrate States in a forum.” to defend consistently litigation derived is interest Supreme had made The United States Court protect its own citizens from a state’s desire to subjecting a interest clear that a state’s regula property its own and to effectuate jurisdiction judicial is a fun- to its nonresident See, e.g., tory policies. v. Blount Peerless cases damental factor to be considered Inc., 695, (2d Cir.), Chemicals, 697 316 F.2d v. Wash- this kind. In International Shoe Co. 831, 76, denied, 11 84 S.Ct. cert. 375 154, 310, ington, 95 90 L.Ed. 326 U.S. (1963); Compania Bos de Astral v. L.Ed.2d 62 (1945), of the state was obvious the interest 237, Co., 107 A.2d 357 205 Md. ton Metals itself, brought by suit the state 365, denied, (1954), 75 348 U.S. S.Ct. cert. unpaid In v. International Life taxes. McGee Comment, (1955). Feder See also 99 L.Ed. 638 alism, Co., 220, 223, 78 Insurance 355 U.S. Process, and Minimum Contacts: Due validity (1957), 223 2 L.Ed.2d Woodson, Corp. Volkswagen 80 World-Wide paramount upon turned exercise California’s (1980). 1345 Colum.L.Rev. litigation. noted the interest in the The Court protecting its resi- manifest interest in state’s commonly relationship charac- most is dents, stating: would be at a “These residents is the the forum state terized the fact that disadvantage forced to fol- severe if were residence, incorporation, place habitual company State.” low the insurance to a distant principal place defendant. business for the 235, 251-52, Denckla, 78 Hanson v. 357 U.S. Co., Parke, supra Seymour Davis & See 1228, 1238-39, plaintiff attachment has some 587: “If the emphasized a substantial the absence of Court adopted forum, has or if the defendant interest, distinguishing McGee. state business, major places we one of its explained: right question the state have no would is not one The cause of action in this case subject to suit for unconnect- the defendant that arises out of an act done or transaction Hill, also Choice ed of action.” See causes In that in the forum State. consummated respect, Law and Jurisdiction International it differs from McGee (1981); Restatement Colum.L.Rev. Co., Life Ins. 355 U.S. [78 (Second) comment e of Laws § of Conflict 223], L.Ed.2d McGee, cases there cited. and the (1971): in the State activities “The individual’s solicited a the nonresident as to and substantial ... be so continuous agreement of Cal- with a resident reinsurance judicial over justify exercise of State, accepted in that The offer was ifornia. arising from activi- of action him as to causes premiums were mailed the insurance likely particularly This is ties in other states. Noting from there until the insured’s death. individual’s where the to be true a situation providing effec- the interest has California place principal is in the State.” of business when for its residents nonresi- tive redress 208 N.E.2d N.Y.2d state— N.Y.S.2d porate headquarters in the forum up Ehrenzweig E. Supreme Court also A. & (1965). the United States See at, the exercise of Law vol. II held International Jayme, Private v. Ben unrelated cause of action in Perkins affects citizenship (1973) (neither party’s Mining supra.9 guet Consolidated jurisdiction). court’s an American in this case has applied The court Texas as a has established The court “minimum contacts” standard. The error forum, drawing to its courts “magnet” require- the nexus reasoning a defendant involving trial lawsuit unnecessary, ment is satisfied and becomes in Texas. purchases who has made ever contacts,” not upon showing of “minimum appeals. of civil I would affirm the court but the defend- upon a demonstration of activity in ant’s substantial and continuous BARROW, J., GREENHILL, J., and C. activ- showing the forum. Absent a of such join in this dissent. ity, requirement high- the nexus becomes a not as- ly significant factor. Texas should

sume over this case that in- a nonresi- plaintiffs

volves nonresident

dent defendant when the cause of action totally

arises out of facts unrelated to the

forum state.

A separate concurring opinion filed on

rehearing “long contends that the arms” should extend more elasti

cally reaching when for nonresident defend

ants who are citizens of other countries. argument

While this may appeal to those

who contend that noncitizens should receive process citizens,

less due than United States MESSENGER, Appellant, Charles Patrick Plyler Doe, - U.S. -, cf. v. 102 S.Ct. Raich, (1982); 72 L.Ed.2d 786 Truax v. v. 60 L.Ed. 131 Texas, Appellee. The STATE it is way nevertheless inconsistent with the No. 62134. process applied previous has been Although rarely cases. such a contention is Appeals Criminal raised, dealing cases jurisdictional is Panel No. 2. invariably sues apply the same due standards citizens and noncitizens alike. May 1982. See, Jim e.g., Enterprises Fox v. Air Rehearing Sept. On France, (5th 1981); Prejean 664 F.2d 63 Cir. Sonatrach, Inc., (5th 652 F.2d 1260 Cir.

1981); Brothers, Inc., Hutson v. Fehr (8th 1978);

F.2d Honeywell, Cir. Inc. v. (7th Apparatewerke,

Metz 509 F.2d 1137 Promotions, 1975);

Cir. Product Inc. v.

Cousteau, 1974); 495 F.2d 483 Airline, 15

Bryant v. Finnish National Parke, Seymour supra fair 9. See Davis that it never offends traditional notions of & Newton, (limiting facts); play justice Perkins to its and substantial for a defendant Laws, (1980) backyard, where Conflict 34 Sw.L.J. be sued in his own no matter (“The proper arose.”) characterization of Perkins ... the cause of action

Case Details

Case Name: Hall v. Helicopteros Nacionales De Colombia, S. A.

Court Name: Texas Supreme Court

Date Published: Oct 6, 1982

Citation: 638 S.W.2d 870

Docket Number: C-243

Court Abbreviation: Tex.