Villagomez v. Rockwood Specialties, Inc.

E. Full Faith and argued Credit He has proven neither nor Florida controlling Florida Order issued the order the Therefore, instant case. the Florida or By issue, his fourth attorney merely der is an “enforcement tool” and general an argues that order issued judgment not a entitled to full faith and Florida requiring court Sharon pay thir credit. See Tex. Fam.Code Ann. ty-six dollars and an additional fourteen (Vernon 159.604(d) § Supp.2006); accord unpaid dollars towards arrearages should Depart. Rev. rel. v. ex Wallace Dela given be full faith and credit and conclu (Alaska 1998) ney, P.2d 190-192 sively establishes that the interpre correct (holding that a similar statute should be tation of Georgia decree that Sharon interpreted give an origi deference to is required pay thirty-six dollars week. nal, support unmodified order of because attorney general’s The application of con interpretation such aids enforce ventional full faith and jurispru credit obligations parents ment of when support dence misplaced. the instant case is jurisdictions and recog travel to new also A brief applicable recitation of the law is with practicalities nizes associated in required: enforcement). terstate The support Geor After a tribunal of this or another state gia support order is the live order determines which order is the control- instant Accordingly, attorney case. ling order and general’s issues an order consoli- fourth issue is overruled. dating if arrearages, any, the tribunal of III. CONCLUSION this state prospectively shall apply the one, disposition Because of our issues law the state issuing the controlling two, four, need not order, we address including that state’s law on inter- Tex.R.App. attorney general’s third issue. est on arrearages, current and future P. judgment 47.1. of the trial court is The support, and arrearages. consolidated affirmed. 159.604(d) (Ver- § Tex. Fam.Code Ann. Supp.2006)

non (d)

Subsection may appear to state an-

other truism —the law of the State that controlling superior

issued the order is regard support the terms of the Lucy VILLAGOMEZ, Individually, and However, order itself. the last clause in Representative of the Estate Is provides very important sentence Deceased, Villagomez, mael and Fran is, clarifying provision; that the law of Villagomez Villago cisco Maria issuing applied State is mez, Appellants, arrears, support consolidated even if the orders of other States contributed to a

portion of those arrears. Sampson & SPECIALTIES, ROCKWOOD Family Tindall, Annotated, Code INC., Appellee. 159.604(d), § Commissioners’ Comment No. 13-05-389-CV. (2003). p. 819 Texas, of Appeals Court attorney general’s regis- notice of Corpus Christi-Edinburg. Georgia order, tration was support Moreover, the Florida Nov. order. Florida order in the record is an order

denying motion for contempt. Steven’s deceased, Villagomez Francisco

lagomez, (collectively “the Villagomez and Maria family”) appeal from the trial Villagomez special granting appear- court’s order Inc., Specialties, a for- ance acts and eign corporation whose direct alleged proximately to have omissions Villago- wrongful death of Mrs. caused the husband, Villagomez, Ismael who mez’s Gonzales, Texas at working was time of his death. Because we hold negate the existence of Rockwood failed personal jurisdiction, reverse the we court’s order and remand the case proceedings further consistent with this opinion. Background

I. Villagomez catastrophic Ismael suffered exposure burns from direct massive cleaning empty amounts of steam while batching tank. At the time of the acci- dent, on-the-job and Villagomez Mr. was of acting employer, under the direction his Inc., corporation a Texas Southern principle place with its of business Gon- zales, Villagomez’s Although Mr. Texas. fatal, he immedi- injuries were did die paramedics ar- ately. He was alive when Oliver-Parrott, Parrott, Alice & Burrow on later trans- rived the scene. He was LLP, Arguindegui, Maria Teresa Law Of- he ported hospital, to a local where was Arguindegui, fice of Maria Teresa David declared dead. Burrow, Houston, Munson, H. Houston family Villagomez’s subsequently Mr. Burns, Munson, Munson, Munson & Gon- against Clay, alleging filed suit zales, appellants. for Vil- gross neghgence. The negligence Bracht, L. Gerald Solace Kirkland family Clay’s also sued Southern lagomez Kurth, Southwick, Houston, & Andrews Specialties, parent company, Rockwood appellee. Inc., headquar- corporation a Delaware Princeton, Jersey. New The tered Justice Before Chief VALDEZ and negli- against claims include Rockwood CASTILLO and GARZA. Justices un- gence, gross neghgent neghgence, dertaking. OPINION appearance a special made by Opinion Justice GARZA. court, arguing that the trial before to hear individually personal jurisdiction lacked Lucy and as court Villagomez, against Rockwood because is of Ismael Vil- claims representative of the estate corporation out-of-state lacking mini- Following precedent by the set Tex- mum with contacts Texas. The trial Supreme Software, court Court in BMC granted special appearance Villagomez family and the appealed virtually has Villagomez family appealed all of findings this court’s trial fact on Court. legal grounds. sufficiency factual In

addition, they have challenges raised II. Standard of Review the trial court’s conclusions law and other substantive issues. a personal ju Whether court has a risdiction over a question defendant is Although findings a trial of fact court’s law. Am. Type Culture Collection Cole may challenged legal factual man, (Tex.2002). 83 S.W.3d 805-06 sufficiency, find problematic we me- In law, resolving question a trial application chanical BMC Software court frequently questions must resolve of precedent case. to the facts of this The fact. See id. appeal, On the trial testimony; yet, trial court no live heard court’s determination grant deny disputes. the ease riddled factual with special appearance subject to de novo Furthermore, many trial court’s review, appellate but also be courts cannot findings of fact be reconciled called upon to review the trial court’s reso admitted uncontested evidence lution of factual dispute. See id. The the record. standard review applicable on appeal reporter’s record shows from the resolution such factual disputes trial appearance court special decided the in a special appearance proceeding was by deposition a cold reviewing record recently clarified Supreme the Texas affidavits, testimony, and other evidence. Court in BMC “If a trial court Software: The hearing special ap- on Rockwood’s enters an order denying special appear pearance all of non-evidentiary, was ance, and court issues findings of stipulation. was admitted evidence law, fact and conclusions of the appellant parties legal argu- The presented only may challenge findings the fact on legal hearing. ments at the sufficiency grounds.” factual BMC Belg., Marchand, N.V. v. 83 Software error, While not this have been (Tex.2002). 789, S.W.3d 794 of def- certainly should affect the amount bar, In at grant- the case the trial court given findings erence the trial of to court’s ed special appearance Compare fact and la- on Tex.R. Civ. P. appeal. word-for-word, 120a(3) ter adopted, virtually all of (permitting testimony” “oral to re- the 67 proposed findings fact 14 special appearance) of solve Michiana proposed Holten, Easy conclusions of law drafted and Country, Livin’ Inc. v. 168 (Tex.2005) by submitted Rockwood. The trial (noting court S.W.3d 782 that objections denied extensive written presentation filed “manner of is dis- [evidence] Villagomez family, including the among cretionary” special appearances) in numerous, objections, other detailed chal- Union Corp. Moye, Carbide S.W.2d (Tex.1990) lenges legal to sufficiency (Hecht, the and factual concurring) J. of the to the support findings (contending evidence trial are “author- that courts proposed by Rockwood. The court later ized obliged by and even rule 258 to hear denied the supplemental findings necessary all of live to re- testimony of when it is fact and conclusions of law submitted and solve cannot on issues that be determined requested by Villagomez family. the a stating written and then that record” stances, resolutions to are no factual similar there [in under rule 258 are “proceedings favor.”). 120a”). Cer- in court’s presume the trial to rule regard] those under giv- no intuitive reason for tainly, there is instance, findings trial For the court’s findings deference ing the trial court’s on evaluations could have been based through jury sat equal to those of a credibility of or Union demeanor. See testimony the of evidence and presentation Carbide, (Gonzalez, at 798 S.W.2d J. conflicts in and later resolve deliberated (“It difficult, dissenting) impossi- if not Texlan, See, e.g., Inc. v. the evidence. ble, judge to evaluate the the County, 282 288-89 Freestone credibility weight the of witnesses and the (“The writ) 1955, no (Tex.Civ.App.-Waco given testimony reading their from facts, being of had the jury, the trier the importance the cold record. upon of the duty responsibility passing adjudi- difficulty at issues stake and of credibility and determin- witnesses record, by reading require cation and, them ing the ultimate issues before hearing parties right have the reject doing, they accept so could court.”). Indeed, no open possibil- there is or in testimony each witness whole ity the trial court could have used be.”). part they as found the facts unique fact-finding its functions to resolve reasons, foregoing do not For we evidence, conflicts as the trial court proceed appeal the merits this with- occupy fact-finding position did not its at stating by appli- out that we troubled hearing special appearance. on the Al- legal traditional cation of the standards though evidentiary court which holds an sufficiency and factual reviews the case acts fact hearing and as finder of concerns, Notwithstanding these bar. special owed deference because its due-process personal-juris- we conduct the testimony unique position hear live evidence that crediting diction review evidence, conflicts in the a court resolve findings of fact if supports the trial court’s findings that issues based aon cold record could, by disregard- jurors reasonable virtually is in position the same ing contrary evidence unless reasonable appellate findings. court that reviews jurors City not. Keller v. could See Wilson, 273, 282, See Benoit v. 150 Tex. (Tex.2005). Wilson, 168 S.W.3d (1951) 239 S.W.2d 792 that a (holding a jury standard, “court should never set aside ver- applying Before we draw merely jury dict because the could have distinction between the trial court’s clear drawn different inferences or conclusions” conclu- findings fact and trial court’s jury because the “has all findings considered of The trial court’s of sions law. has, by admitted before it and its individually legal facts fact be reviewed answers, conflicting from evi- selected sufficiency, factual but the trial court’s and conflicting dence inferences that which susceptible of are not conclusions law reasonable.”). most Software, considered such 83 S.W.3d at review. BMC Instead, the trial court’s conclusions 794. why is the trial court’s It thus unclear cor- legal de of law reviewed novo findings given any special defer- should of on the facts the case. rectness based in circumstances such as See ence these. Id. Parmelee, Otis Elevator Co. v. 850 S.W.2d (Tex.1993) 179, (“Here, reviewing correctness of the trial 181 the trial court In facts of application of the law to the expressly heard no evidence but based its court’s case, necessarily limit “the argu- do not papers decision on the filed and the we court’s find- of these circum- of the case” to ment counsel. Under facts 728

ings of Limiting case, fact. of “the facts of the reviewing the facts we case” to findings the trial court’s of fact in- consider the evidence reasonable would create an unnecessary bias for up trial court’s find- supporting ferences holding (1) the trial court’s fact, resolution ings evidence that as well as broader, question (2) determinative contextual, admitted, of wheth undisputed and er the defendant carried its (3) burden to allows logical one inference. negate all for personal jurisdiction. bases such Because cannot evidence be disre- See Software, BMC 83 S.W.3d at 793. fact, garded by trier of it is reasonable the same evidence that would be reviewed case, In this the trial court’s find legal analysis. sufficiency City See ings of fact focused exclusively almost on Keller, 168 Based on this S.W.3d the contacts that Rockwood does have evidence, we hold that Rockwood did not in Texas. Villagomez family As the com negating jurisdiction meet burden of plains on appeal, the trial court failed to erred as matter and that trial court issue findings additional they of fact that by special ap- granting of law Rockwood’s requested had by and that supported were against pearance dismissing the claims uncontested and admitted evidence. The jurisdiction. personal it for lack of additional findings requested by of fact Villagomez family tended to establish III. Due Process Limitations on If, forum various on contacts. the Exercise of Personal

appeal, “the facts the case” were limited Jurisdiction fact, to the trial court’s findings of Rock- wood would appear have forum fewer process In the context due contacts than what was established personal restrictions on the exercise Yet, admitted undisputed evidence. jurisdiction, Supreme the United States this result clearly is not contemplated recognized Court has the individual the trial findings, court’s which are silent protected being subject in not interest on short, these In contacts. have no we binding of a forum judgments concluding basis for the trial court which the no defendant established found that these unstated did not contacts ties, contacts, meaningful or relations. they exist or that were otherwise inade Biard, 517, Cauwenberghe Van 486 U.S. v. quately supported the evidence. We 526, 1945, 108 100 L.Ed.2d 517 S.Ct. are also that a mindful trial court has no 471-72, 462, (1988); Burger U.S. King, 471 need findings concerning to make facts (1985); 2174, 105 L.Ed.2d 528 S.Ct. 85 See, that are e.g., admitted. Tex. Eastern 310, Washington, 326 U.S. Int’l Shoe Co. v. Corp. Sealy Indep. Transmission v. Sch. (1945). S.Ct. L.Ed. 95 90 Dist., (Tex.Civ.App.- Supreme the oft- Court has reaffirmed 1989, writ). Houston Dist.] no [1st Denckla, quoted reasoning of Hanson

The analysis 235, 253, below is a de novo review 357 L.Ed.2d U.S. 78 S.Ct. (1958), correctness the trial an- minimum court’s contacts must question swer to the legal ju- personal have a basis act which the “some analysis risdiction. The that purposefully demonstrates defendant avails itself of the carry to failed its burden to the privilege conducting activities within negate jurisdiction State, all invoking bases for because forum thus the benefits the facts of case show protections the that Rockwood and Asahi Metal its laws.” systematic has had Industry continuous and con- v. Court Superior Co. of Califor nia, 1026, tacts in conducting analysis 102, 109, Texas. In U.S. 107 S.Ct. 94 480

729 (1987) (1952) (holding that Ohio courts could ex- 471 (citing Burger King, L.Ed.2d 92 2174). 475, jurisdiction foreign over general U.S. at 105 S.Ct. Where ercise systematic defendant has “continuous and corporation)). general business contacts” with forum be as jurisdiction can General state, de Colom Helicopteros Nacionales of the by evaluating contacts defen sessed bia, Hall, 408, 415, v. 104 S.A. 466 U.S. a reasonable dant with forum over 1868, (1984), S.Ct. L.Ed.2d 404 80 years, up number of date suit may “general” jurisdiction court exercise Telecom, Inc. v. MCI was filed. Access any against de brought over action (5th 694, 197 717 Corp., Telecomm. F.3d 9, Id. at 414 n. fendant. 104 S.Ct. 1868. Cir.1999). proper ... “Jurisdiction pervasive,

Where contacts less proximately the contacts result where jurisdic “specific” court still exercise by the himself that from actions defendant arising tion “in a suit out of or related create a ‘substantial connection’ with the with the forum.” defendant’s contacts Asahi, 109, 480 at forum State.” See U.S. 8, 104 Id. 414 n. at S.Ct. 1868. exercise (quoting 107 S.Ct. 1026 McGee v. Interna personal jurisdiction over a nonresident 220, Co., 355 tional Insurance U.S. Life comport play defendant must also with fair (1957)). 223, 199, 2 78 L.Ed.2d 223 S.Ct. justice. Burger King, and substantial See corporation avails “purposefully aWhen 476-77, 2174; 471 at U.S. 105 S.Ct. Com privilege conducting of the activi itself York, 177 Corp. monwealth Gen. v. S.W.3d State,” the forum Hanson v. ties within (Tex.2005). 923, 925

Denckla, 235, 253, 1228, 2 357 U.S. 78 S.Ct. A. General Jurisdiction (1958), notice L.Ed.2d 1283 it clear there, subject it can act to suit Determining existence litiga the risk of to alleviate burdensome jurisdiction personal does not involve insurance, passing the procuring tion examination of each Texas contact with or, customers, if costs expected on viewed in isolation from one another. Holt great, severing too its connection risks are 773, Corp. Harvey, Oil & Gas v. 801 F.2d Asahi, See 480 U.S. at with the State. (5th Cir.1986). Rather, 779 we are re “purposeful S.Ct. 1026. The 107 quired to examine the contacts in toto to requirement availment” ensures that de determine they whether constitute the a jurisdiction will not haled into fendant be kind systematic of continuous contacts “random,” “fortuitous,” solely a result of Id.; required satisfy process. due Am. contacts or of the “unilat or “attenuated” Culture, Type at 809. Never activity party or a third eral another theless, systematic con continuous Colombia, de person.” See Nacionales meet, tacts test remains a difficult one 1868; Keeton v. 104 S.Ct. U.S. requiring contacts a de extensive between Inc., 770, 774, Magazine, Hustler 465 U.S. Sys. fendant and a forum. Submersible v. (1984); 1473, 79 104 S.Ct. L.Ed.2d 790 C.V., Central, S.A. de Perforadora Volkswagen Corp. (5th v. Wood Cir.2001). World-Wide Only F.3d once son, 286, 299, 444 U.S. 100 S.Ct. Supreme up has the United States Court (1980). In the L.Ed.2d 490 words jurisdiction held an exercise of personal Court, “Certainly a Supreme non when the suit was unrelated to the defen subject (i.e., corporation ought resident on dant’s contacts with a forum based ‘enjoys where general jurisdiction). (referring Id. to suit Co., protection of the laws Benguet Mining benefits Perkins Consol. ” 413, 437, Easy Country, 72 96 L.Ed. 485 state.’ Michiana Livin’ 342 U.S. S.Ct. 730 (Tex. Holten, 777, later, v. Many years

Inc. 168 S.W.3d 787 Supreme Texas 2005). applied general special Court rule to a appearance Software, in opinion BMC an

1. Rockwood’s Contacts with Texas which that separate corpora- stated two a Roekwood is holding company. Its tions are to be treated as distinct entities 2000, began corporate life in it suc- purposes personal when unless ceeded another holding company called exception an to the general rule applica- is Laporte, Inc. Before Roekwood creat- was Software, ble. See 83 BMC S.W.3d at 798 ed, Laporte owned Southern oth- (reaffirming general rule in quoted 2000, er year Oil). subsidiaries. Since the Bell Roekwood been has the sole owner of 13 adopted that the Given rule in Bell Oil doing subsidiaries in business loca- various remains the law in considering Texas and tions in the United States. Three it that gone largely unchanged over extensive, Rockwood’s subsidiaries have years, we conclude that in order to ongoing corporate in operations Texas. fairly apply case, the rule to the instant it instance, is organized necessary to first understand the con- under Texas law and has principal its in text which the rule originally was articu- place of in business Texas. Roekwood also lated. U.S.A., owns Compugraphics Inc. and Inc., Specialties, Chemical which have above, As noted Bell Oil adopted the physical locations corporate operations general of corporate separateness rule in Texas. in language Swift, opinion by from Appeals. Texas Court Civil id. See validity Because these con Oil, Like Bell not did involve Swift as legitimate tacts process due forum con process personal jurisdiction. due issues of unclear, tacts empha should be Swift, 127. In See 187 S.W.2d at articulat- law, that long-standing sized under ing general corporate rule of separate- separate corporations are to be treated as board, applied ness is now across the See, distinct e.g., Software, entities. BMC (1) the court relied on cases: three Can- 83 S.W.3d at 798. The Texas Supreme Manufacturing Cudahy non Co. v. Pack- Court separateness addressed the of cor Co., 250, ing 267 45 69 U.S. S.Ct. porate ago identities some four in decades (2) (1925); L.Ed. 634 v. State Humble Oil Oil, liability Bell case involved the Co., (Tex.Civ. Refining & 263 319 S.W. parent corporation arising a lawsuit (3) ref.); Berkey App.1924, writ v. subsidiary: from the activities Co., Ry. Third Avenue N.Y. general rule seems to be that courts (1926). all Although N.E. three cases ownership will because of stock or of corporate separateness, involved issues interlocking directorship disregard corporate sepa- dealt Cannon separate legal corporations, identities juris- personal rateness the context of unless such relationship used to defeat diction. convenience, public justify such wrongs, laws, as violation pro- anti-trust Cannon, predates In Inter- a case which fraud, tect defend crime. progeny, and its the United national Shoe Supreme Bell Oil & Co. v. Allied that “Con- Gas Chemical States Court stated (Tex.1968) Corp., gress corporation provided has not Co., (quoting State & 187 S.W.2d of one State shall be amenable to suit Swift 'd)). (Tex.Civ.App.1945, 133-34 writ ref the federal court for another State

731 in these resides, Unfortunately, reasoning such it plaintiff the whenever which cases, to explain as fails the subsidiary corporation a the similar employs adequately. business there- of the courts instrumentality doing decisions Cannon, at to the fictions of relating in.” U.S. S.Ct. the law Thus explained corporate entity that separate 250. The Court further of agency and subsidiary “such use of a does not neces- than purposes other developed was subject parent corporation ju- to sarily the the amenability personal to determining jurisdiction.” Id. risdiction, the law of such amenabili- by ty to merely is confused reference in today’s jurisprudence place Cannon’s matters. inapposite these perhaps of minimum contacts is debatable. repre- decision The International Shoe Swift, Through its reliance on Bell Oil and by Supreme the Court sented effort Supreme signaled the Texas has Court in the area of clarify concepts to earlier pre- of application that some continued amenability foreign corporations of the appropri- law Intemational Shoe case is jurisdiction of state personal the ate, to corpo- least it of at as relates issues by any lingering sweeping courts aside separateness. rate the earlier shibboleths notions Accordingly, reaching today’s deci- “consent,” “doing busi- “presence,” sion, Cir- we influenced the Sixth abstractions, self-defining were ness” eloquent interpretation Cannon cuit’s by redefining those tests in terms of vis-a-vis International Shoe from more Following this “minimum contacts.” de- years ago: than 40 appropriate, seem for the cision would ownership by corporation mere [T]he amenability determining the purpose subsidiary of all of stock of a amena the foreign corporation of a jurisdiction to the of the courts of a ble subsidiary cor- happens which own justi alone state not be sufficient activities, on local poration carrying holding parent corporation fy the like req- the the parent has inquire whether early wise amenable. In the case of the minimum contacts with State uisite Mfg. Cudahy Packing Cannon Co. v. ownership the of the forum. Thus Co., Supreme the Court held on local activi- subsidiary carrying subject subsidiary did not activities of merely one Michigan represents ties parent corporation personal its to the or factor to be considered contact jurisdiction of local courts. or non-existence assessing the existence ruling It should be noted that the requisite minimum contacts with ease, if qualified Cannon but not suffi- Michigan, the State of ruling in the subsequent International present foreign cient of itself to hold case, at Company Shoe has been least juris- personal corporations amenable qualified holding foreign in later cases diction. corporations personal amenable Regie Nationale des Usines Velandra jurisdiction of local courts because (6th Renault, Cir. F.2d 296-97 subsidiary corporations local activities omitted). (internal 1964) citations theory corporate sepa- that the upon fictitious, theory alleged No has been parent or that the has ration or, of Rock- subsidiary permit that would the status agent, out as case held separate wood and Southern vaguely, parent more exer- disregarded. corporations to be over distinct degree cised an undue control (“To ‘fuse’ the subsidiary. See id. 732 ju-

parent company subsidiary its for the warrant assertion of over purposes, plaintiffs the risdictional must foreign parent”) Hargrave (citing the v. prove parent the controls the internal busi- (5th Corp., Fibreboard 710 F.2d 1159 operations ness affairs the subsid- Cir.1983)); Nat. Third Bank v. WEDGE iary.”). For purposes, our Rockwood is a (6th Inc., Group, 882 F.2d n. 1 1090 separate corporation all distinct from Cir.1989) (“[T]he ownership of subsidiary subsidiaries, including doing of its those in that conducts business the is forum one in business Texas. id. at 798. This See contact or factor in considered as- that the means subsidiaries’ contacts with sessing the existence non-existence of Texas cannot be imputed Rockwood. contacts.”) (internal requisite the minimum (“The seeking party See id. to ascribe one omitted). citations corporation’s actions another disre- The fact findings of and conclusions of their garding corporate distinct entities in law filed this case indicate that the trial allegation.”). prove must In other words, ownership the court failed to consider fact that the subsidiaries do the in not that business Texas does mean subsidiaries as a forum contact. The court Rockwood does in See “holding business Texas. compa- found Rockwood is Hargrave Corp., F.2d Fibreboard 710 ny” “indepen- and that its subsidiaries are (5th Cir.1983) (“[S]o long aas on “operate day-to-day dent” and their parent subsidiary separate maintain states, findings One of of fact own.” entities, corporate pres- and distinct “Rockwood’s interactions with Southern in may ence of one a forum state not be subsidiaries, Clay, as well as with its other other”). attributed ordinary customary are the sorts of corporations have parent interactions Preserving corporate fiction allows their court to remain with subsidiaries.” The trial Rockwood distinct from its sub- sidiaries, but it not in engages does mean that Rock- also found that “Rockwood wood ceases to own the subsidiaries. owner- exchange normal associated with Ownership subsidiary of a conducting busi- ship its Texas-based See, e.g., ness in Texas is a forum contact. subsidiary, with along other subsidiaries Velandra, Although 296-97. F.2d at that maintain facilities in Texas. That ownership local-operating subsidiary of a exchange infrequent trips includes normal enough not be minimum contacts employees along to Texas ego outside the context of alter or similar some communica- with business-related devices, conceptual it is error nevertheless tions, and-electronic, per- both oral legitimate exclude this forum contact Texas.” sons entities in from toto with defen- consideration in foregoing findings have chal- been in making dant’s other forum contacts lenged appeal legal on and factual suffi- determination of whether the defendant challenged ciency. They have also been conclusively negated propriety in large part, improper.and errone- being, exercising general jurisdiction. Al- See into going ous conclusions of law. Without AB, pine Co. v. F.3d Copco View Atlas issues, that none of the these we observe (5th Cir.2000) (“[A] foreign parent any way inconsis- foregoing findings is corporation subject jurisdic- complete ownership tent with Rockwood’s merely tion forum of a state because operations of three subsidiaries with subsidiary present or doing business fact, there; findings In Texas. court’s parent- the mere existence of a subsidiary verify is not Rockwood is relationship sufficient include statements an accurate state this to be corpora- We believe owner of at least three the sole cases the law. In the ment of operating Texas. tions question, has considered which it in factors must be added the These Court held Supreme United States minimum novo of whether toto de review subsidiary a not neces the of activities so, negated. In doing been contacts have subject to parent a sarily enough render this more emphasize we case involves jurisdiction, process for service of a court’s simple ownership of Texas sub than three Ak Volkswagenwerk See otherwise. not a the This is case where sidiaries. Schlunk, v. 486 U.S. tiengesellschaft Texas of only ownership contact with is (1988) 705, 108 2104, 100 L.Ed.2d 722 S.Ct. corporation. in a None of the stock Cannon). including Courts (citing cases subsidiaries forum contacts if a to mean that interpreted have this be to demon need attributed Rockwood with the forum corporation’s contact its minimum within Texas. strate contacts separate ownership is its of a distinct and Freudensprung See Tech. Offshore corporation doing independently business (5th Cir.2004) Servs., 379 F.3d forum, in no contacts exist the minimum (“As rule, proper a ... general the exer subsidiary the forum contacts the unless jurisdiction a personal cise of over nonresi parent. the Freuden- can be attributed to corporation may solely dent not be based cases). (collecting F.3d at 346 sprung, 379 upon the contacts with forum state of theory in Even play No is here. such entity corporate another with which so, any as “nor- do not dismiss factor we affiliated.”). defendant considering mal” it in without toto with Preussag disagree other factors. We with against approach argues Rockwood never as the term “normal” has insofar brief, juris appellate stating, in its “[N]o due-process, personal- part been weight given be] dictional to contacts [to cor- yardstick As a lexicon. occurring as of the normal relation part Texas, we porate amenability to suit in ship corporations two distinct between objective This is utility. find it devoid subsidiaries, parent as a and its such even case, well in instant demonstrated Ap- such occur in where contacts Texas.” employed expres- where Rockwood has Only pellee’s p. Brief one case is cited relationship” as a vessel sion “normal the law. for Rockwood’s statement of See smug- contacts and collecting direct forum Coleman, Preussag Aktiengesellschaft v. of the minimum contacts gling them out (Tex.App.-Houston 16 S.W.3d 119-20 analysis any process due determina- before 2000, pet. w.o.j.). In that Dist.] dism’d [1st tions are made. case, which rather than involved indirect subsidiaries, Ap the First Court of direct undermines the state’s approach This following made peals observation about providing judicial forum interest jurisdictional separateness parents its civil controversies resolution their do “[The] from subsidiaries: cases to the state’s sover- unduly subversive that, ego an alter process inquiry not create rule outside The Court’s due eignty. situation, relationship un- through normal parent’s not be commandeered should min- subsidiary, pursuant accepted over contortions of warranted system that is at that result arching not directed imum contacts nomenclature state, be- subject forum contacts particular par suffices to the defendant’s direct in toto subsidiary’s ing from consideration jurisdiction in its state.” excluded ent to forum with all of the defendant’s other Preussag, 16 119-20. contacts in our de novo review minimum with deposition testimony regarding the contacts. parties’ performance execution and contract. Sumner testified to the follow- Rockwood’s ownership of subsid ing facts in deposition his and affidavit: doing iaries business in Texas amount to living Sumner was contacts, Pennsylvania at if, alone, forum standing even the time of they contracting with are insufficient for the exercise of general jurisdiction. Texas, has since moved where he See Freudensprung, has continuously 379 F.3d at 346. Our maintained his resi- mandate under taking pursuant contract; these dence inquires is not to to the consider and reject isolation, forum contacts in but to Sumner had to relocate to Texas and evaluate the contacts in toto. See Holt reside there in perform order to his Oil, 779; Culture, 801 F.2d at Am. Type Rockwood; contract with at 809. Accordingly, pro we law; The governed by contract is ceed identify Rockwood’s other contacts The responsible contract makes Sumner with the forum passing before on the issue businesses,” for a “basket of which Sum- general jurisdiction whether exists. “Clay ner identifies Additive busi- Another series factors or forum con- simply Clay; ness” and not as Southern apparently tacts considered the trial Sumner’s Texas office is in Austin rath- court’s minimum inquiry contacts involve Gonzales, er than in where Southern written contract by executed 2001 Mi- located; Clay is Kenny, chael the then-President of Rock- wood, and Vernon Sumner. The contract Sumner’s “basket of businesses” under evidence, was submitted as his and its exis- contract with Rockwood includes the tence performance and by operations were Clay verified Southern and Rock- uncontested and deposition Additives, Ltd., uncontradicted wood separate two cor- testimony, including testimony by Vernon porations for which Sumner is the man- contract, Sumner. The to which Southern aging “essentially” director and chief Clay is not a signatory, in part: states officer; executive pleased We are to confirm our offer of earnings Sumner’s at Rockwood Addi- employment as Managing President and earnings tives are consolidated with his Clay Director of our Additives business decision, Clay, by at all Southern his on a full-time and exclusive basis. For of his earnings paid by Southern purposes of facilitating your employ- Clay; ment, you assigned will be to and em- election, By Sumner could have his earn- ployed by our subsidiary, Clay Southern ings allocated back to Rockwood Addi- (hereafter Products, Inc. “Southern tives payment, he declines to do but Clay”). It is our understanding you so;

will employment commence on or before Clay Sumner considers his em- Southern August 2001. You will have direct ployer; reporting responsibility to the President (hereinaf- Specialties, Clay pays unemploy- Rockwood Southern Inc. Sumner’s “Rockwood”). ter compensation premi- We reserve the ment and workers’ right, discretion, ums; at our change your respon- job

sibilities or any title at time. Sumner’s office is leased Southern In addition to a copy Clay, Clay of the written all employs Southern contract, the trial court provided was also employed staff there. Southern in order to meet Clay fairs of Southern

Clay pays equipment for all of the goals. those or exceed office, furnishing pays at the and it bills; telephone electricity testimony of wit- other deposition produced also nesses was authori- has limited Sumner’s Sum- on the issue of court’s consideration Clay president to ty expen- as Southern This evi- with Rockwood. ner’s contract $250,000. than Amounts ditures less testimony from Keith included dence ap- greater require than this written Stultz, Manager of Operations South- president; proval day- Clay’s ern who runs Southern right change Rockwood has Sum- to-day could not identi- operations. Stultz responsibilities job ner’s title at its According to fy job exact title. Sumner’s time; discretion Stultz, “day-today- have does not Sumner directly responsible Sumner is Seifi involvement” Ghasemi, president of the current Rock- Clay is not working for Southern Sumner’s him; wood, regular and has contact with Nevertheless, “day-to-day job.” Stultz presi- Sumner communicates with he person Sumner is the testified that “concerning ongo- dent Rockwood to, person has the “ulti- who answers ing business activities and results of “the responsibility facility,” mate Clay on about once a average Southern safety pro- responsibility for ultimate month, by addition, phone. In a written responsibility “the for gram,” and ultimate monthly is report provided”; adequate safety not is whether or there training.” Rockwood Sumner’s contract with by agreement be modified an only high-ranking Stultz was

writing, by and an “au- singed Sumner Clay who could not iden- Southern official Rockwood”; representative Holmes, thorized job tify title. Rick Sumner’s Health, Envi- Clay’s Safety, and Southern modified; The has never contract been Manager, that he also testified ronmental continuously The contract has been per- title, job identify but could not Sumner’s Texas; formed in Clay confirmed he that no one Southern for Sumner also conducts business Rock- higher holds title than Sumner. Additives, wood Ltd. of his Austin out Abrunzo, secretary” “assistant Donna office; (and subsidiaries, of its in Rockwood all estimate, By Sumner’s he visits South- including Clay) gave deposition Southern month”; Clay only “about ern once part of Rock- testimony Sumner not confirm that he had Sumner could “top executive team.” wood’s Clay once in the visited Southern even an inter-of- also includes evidence time, though at the he year even an- by Rockwood that fice memorandum Clay’s president and man- was Southern “Man- appointment as nounces Sumner’s director; aging and Clay- aging Director the Rockwood shareholder, Rockwood, an- as the sole Division and President Additives nually performance goals Clay, sets South- The announcement Inc.” Southern subsidiaries) (and by Kenny, ern its other the then-Presi- was written by Rockwood, budgets on each and includes state- prepared based dent of us,” joins subsidiary. “[Vern] As President of Southern such “Vern ments Pennsylvania to Tex- responsible for will from Clay, Sumner is deter- relocate “[Jjoin me,” as,” report to and af- 'Vern will mining conducting the business inme welcoming organiza- Vern our premiums on behalf of Mr. Sum- tion.” ner. Clay pays 58. Southern Mr. Sumner’s The trial court issued numerous benefits, reimburses ex- his travel findings of fact that failed to address the penses pays company for his uncontested and uncontradicted evidence car. establishing continuing Rockwood’s con 59. Mr. Sumner’s office and staff tractual relationship with Sumner and and equipment supplied Rockwood’s Texas forum arising contacts by Southern paid Clay.

from that relationship: 60. Mr. is responsible Sumner for de- 9. Rockwood has never been party termining conducting any whereby contracts obligated affairs of business Southern perform services Texas. and he how to vari- decides meet 10. specifically Rockwood has never production performance ous recruited residents of Texas for goals consulting with Southern employment, and Rockwood has Clay managers and employees. employed any never Texas resi- employ any 61. Rockwood does not dents. personnel that are employed also 13. None of employees Clay. Southern

lives Texas. does not maintain 39. All of facilities with Clay’s account common Southern Clay.

financial records are maintained Clay’s at Southern facilities in Villagomez family legal has raised Gonzales, Texas. sufficiency challenges and factual most findings. these We conclude that is 42. responsible Mr. Stultz is for the chal- unnecessary specific to resolve these day-to-day operations Southern lenges individually response to hold—in Clay and not report does to or objections the and series of issues raised take from direction Rockwood by Villagomez family the trial respect with the day-to-day op- —that court ad- by neglecting erred consider Clay. erations of Southern undisputed proving mitted evidence Sumner, 54. Vernon the President that has maintained a continu- Rockwood Director Managing of South- relationship ous contractual with a Texas ern Clay, employed by is Southern perform resident to services Texas. Clay. is Mr. Sumner not an em- trial noteworthy We find it that ployee of Rockwood. any findings court did not to the issue salary 55. Mr. Sumner’s and his relo- effect that no contract exists between cation expenses paid were and are on findings Rockwood and Its Sumner. by Clay by Southern and not subject em- are limited to whether an Rockwood. ployer-employee relationship has ever ex- pays 56. Clay Southern Mr. Sumner’s isted or between Sumner social security taxes and withholds Clay. Sumner and is an Southern This federal income taxes from his unduly and unfair approach, restrictive earnings. given accomplished that it ref- was without Clay pays unemploy- rules, Southern any guiding principles, erence to or ment compensation precedent. focusing and workers’ By on the narrow its allowing rather than corporate capacity re- of possible employer-employee issue man- subsidiary to hire and lationship, “independent” trial undis- court obscured through its own board regardless president exist age forum contacts that puted interpretation of of Rockwood’s rhetorical directors. have Rockwood and Sumner

the evidence. credit, Riordan testified To Rockwood’s that has con- a contract for services been that Rock- these He testified on issues. tinuously performed in Texas. Without the contract in actually wood entered sufficiency of approving reviewing as of Southern capacity sole shareholder support the trial court’s evidence Kenny Clay and that Mr. executed finding employed by South- that Sumner Clay’s as a member of Southern contract ern we hold that the court erred board directors. forum contacts failing to consider as sup- note the contract does not We con- ongoing unmodified Rockwood’s sug- as testimony Riordan’s insofar he port performance tract with Sumner and Clay party gested Southern the contract Texas. (1) the contract is on Rockwood contract: Likewise, also to the of fo- we add list letterhead; (2) it identifies Rockwood rum contacts Rockwood’s contacts with (3) only parties; as Rock- Sumner the sole Clay relation to the Rock- signed the president, Kenny, Mr. wood’s Clay is wood-Sumner contract. Southern (4) Rockwood; the contract document for contract, not a to the but it is signatory Kenny in his signed capaci- states Mr. certainly performance. involved in its president, not in ty as Rockwood’s thus Rockwood has contacted and done for Southern as a member capacity board business in Texas and with Texans (5) made Clay; and no reference is directly purposefully providing South- or board members South- shareholders corporate in Tex- leadership ern addition, Clay. In Sumner testified ern con- through as Rockwood-Sumner contract in his Kenny signed that Mr. tract. and did capacity president Kenny In adding testify this set of contacts to the a not that he knew Mr. was list, growing Clay’s we note that the courts have of di- member of board Southern corporate and recognized that formalities rectors. in a “technicalities” should be considered and on the uncon Based admitted due-process, personal-jurisdiction analysis. evidence, fact a finder of tested rational Corp., v. Bearry

See Beech Aircraft not that Rockwood could have concluded (5th Cir.1978); Smith F.2d its contacts with attempted to structure Piper Corp., 425 F.2d Aircraft corporate participation its Sumner avoid (5th Cir.1970). Clay That Southern in services performance in the Sumner’s to the with signatory contract Sumner in specifically Texas. That some, might technicality in the be a view govern dealings its law voked Texas so, technicality if but it is that works perhaps though in with Sumner Texas— Considering strongly against Rockwood. in and itself— arguably insignificant sophistication level of purposeful nature further shows ability demonstrating its to struc record contacts Texas. Rockwood’s direct ture its to benefit from transactions also jurisdictions, including The evidence shows laws various direct Texas, following that amount to it is Rock- activities significant those this contract in its forum contacts: wood elected enter 1.Rockwood promulgated a “Rec- identify he how he did not follow the which, Management Policy,”

ords policy. applies its terms to Rockwood and 2. Rockwood has ongoing, “arm’s subsidiaries, to all of including its length” commercial transactions those operations with in Texas. The with Clay. Southern The record in- policy instincts the subsidiaries to copies cludes of two interest-bearing identify, process, and retain certain promissory totaling Donna Abrunzo entered into an further on specific parts 1, agreement, January on on policy follow, Clay Southern did not behalf of Rockwood with Health Sumner testified that Clay Southern First, third-party administrator lo- essentially had fallen behind on “some in Tyler, cated Texas. The contract housekeeping.” states that is organized says Stultz testified that the policy under Texas Although law. Abrun- says, what it but he testified that he zo testified that the contract is inac- does not Clay know whether Southern regard, curate in that she confirmed follows it. He inaccuracy. testified he has it was executed with personally never followed it. He The contract indicates that it bewill identify anyone could not with whom in performed Texas. The evidence decision, he discussed this nor performed could in shows the services at South- death of Texas residents Rock- Health First at Texas and years in the Clay ern were directed wood’s direction also Pia- investigation, 2003. In one persons connected benefit “team designated the centino was subsidiaries, including Rockwood’s leader.” in Tex- operating those subsidiaries employee, as. Rockwood’s Acting 11. as Clay, helped Piacentino Southern proper- has commissioned 6. Rockwood officials, recre- and others MSHA surveys ty conservation studies and injury involving ate accidents corporations in Tex- third-party with at of Texas residents death occurred in Texas as which have in Clay years Southern subsidiaries, the benefit of its Texas and 2003. Clay. These including Southern numerous studies have dealt with employee, as Rockwood’s Acting 12. issues, including risk assessment reports authored of ac- Piacentino management. and involving injury or cidents which death of Texas residents often employees, 7. Rockwood sends in Clay filed with MSHA Southern Piacentino, Rock- including Mike years 2001 and 2003. Environmental, wood’s Director of Risk, Safety Management, employee, Acting 13. as Rockwood’s in Texas to assist its subsidiaries “Process performed Piacentino material, specific non-finaneial issues Audit” at Southern Hazards to their locations individual Texas Clay’s facility in in operations, such safe- passing years and 2002. dealing ty audits and with federal employ- an Athough 14. Piacentino is regulatory agencies such as OSHA and not Southern ee Rockwood happened in This MSHA. name his work his 2002, and 2008. numbers are listed phone mobile 8. In Rockwood contracted with Clay Con- as “Southern Products Inspection Hartford Boiler Steam “Emer- Clay’s tacts” on Southern Co., and Insurance which maintains Numbers,” which is includ- gency Houston, At Texas. office Clay Products ed the Southern direction, Hartford Safety Employees Manual. inspec- performed given copies Steam internal fire on it. high-pressure tions of three and are trained manual located tube boilers at Southern According to Rockwood executive Gonzales, Texas. Clay’s facility Riordan, Tom counsel Royal “[Fjrom contracted 9. Rockwood Mr. safety standpoint, in- to perform Sun Alliance boiler essentially monitor- Piacantino spections which occurred South- ing safety [at subsidiaries facility holding on Clay’s ern December behalf of the on Texas] company [Rockwood].” 2001. employee, Pia- of its provides 10.Rockwood’s Mike each 16. Rockwood centino, subsidiaries, in including at the those participated, has (cid:127) Rockwood, Safety, Texas, mandatory sole direction Health, Environment investigations following multiple (“SHE”) Management Program injury or involving accidents Manual, includes, Guidance which 2002 that 2001 and are among things, other reporting business related.

schedules for the subsidiaries to Analysis 2. Minimum Contacts in making use their routine com- munications with Rockwood. depends Jurisdiction upon the See, facts of each People’s case. e.g., To 17. Rockwood’s guidelines SHE Co., bacco Co. v. American Tobacco mandatory, they but give Rock- 79, 86-87, U.S. 38 S.Ct. 62 L.Ed. 587 wood subsidiaries latitude to cre- (1918). In passing on the merits of the policies ate their own and pro- above-mentioned evidence of a factors as grams to meet or exceed the substantial minimum connection for con expectations set Rockwood. tacts, we are heavily influenced how 18. Piacentino, Rockwood’s employee, general Learned Hand corpo described regular contact, and scheduled rate forum more than a lifetime contacts communication, and correspon- ago: dence with Rockwood’s various It scarcely argument advances subsidiaries, including those in say corporation “present” that a must be Texas, on issues related to Rock- state, foreign if we define guidelines wood’s SHE and the word demanding dealings such as will subsidiaries’ programs and per- subject jurisdiction, it to it for then does formance related to the SHE no more than put question to be guidelines. Indeed, answered. it is doubtful wheth- 19. From November when er it helps any much in event. It is created, Rockwood was until the difficult, to impossible, us it seems time of suit in impute locality corpora- the idea of to a officers employees, including tion, except by virtue of those acts which its Chairman and CEO and Vice shareholders, purposes. realize its CFO, President among oth- individually and agents officers are not ers, trips made to Texas at least corporation, carry and do not it with 23 times. legal them in all their It is transactions. 20. Seventeen the visits were for only upon engaged when its affairs

“business,” to use they it, Rockwood’s de- represent can and we be said scription, or for that ap- reasons can qualitative see no be- distinction (for pear to be business related tween part doings one of its and anoth- instance, er, one of the reasons listed so they carry plan. out the common “global is a meeting”). sales If all, we locality are to attribute to it at it must equally present be wherever 21. President, Rockwood’s former Mr. part on, of its goes work as much Kenny, made trips to Texas in little as in great. 2001 and According, therefore, say, corpora- When we that a Rockwood, trips were for “un- “pres- tion sued where known” reasons. There is no indi- ent,” we understand that the word is cation in the trips record that the used, literally, but as shorthand personal were for affairs. The something else. produced records by Rockwood show the trips along Gilbert, listed side Hutchinson Chase & 45 F.2d (2d 139, 141 Cir.1930). four other trips Kenny Mr. made it supposed nor is so, “operations,” the traditional following In we also doing are not Supreme companies generally the do precedent Holding United States to. services; rather, provide goods Court: to or exist equity inter- they controlling exist hold fic- is a corporate personality Since the in other tion, {e.g., entities stock a to be ests other although fiction intended fact, may may pro- not though corporations), acted as a which upon were Supervisors, Klein Board 282 U.S. of their own. goods vide or services 19, 24, L.Ed. it is 51 S.Ct. holding Although compa- a Rockwood is “pres- clear that unlike an its individual undisputed evidence ny, the admitted without, within, as the ence” well as does more than shows that Rockwood origin state of its can be manifested conducts merely “hold” stock. Rockwood in its by activities earned on behalf by owning in Texas other busi- business it. those are authorized act for who by directly facilitating nesses Texas say the far corporation To that is so through of such businesses profitability the “present” satisfy process there as to due systems of commercial myriad integrated requirements, for purposes of taxation finance, communication, transactions, exec- it in against or the of suits maintenance safety, corporate ac- oversight, utive state, is the beg the courts of countability, list. give non-exhaustive For terms question be decided. physical often This business involves “presence” merely “present” or are used personnel of Rockwood’s Tex- presence symbolize cor- those activities of the as. poration’s agent the state which within courts deem to satis- will to be sufficient The connection between Rockwood L. fy process. the demands of due subsidiaries, including Southern its Texas Hand, J., in Hutchinson v. & Chase regard, is in this but substantial Gilbert, F.2d 141. Those de- corporate identities remain distinct. their may mands be met such contacts of operations of day-to-day as the Insofar corporation with state Clay as subsidiaries such Southern reasonable, forum make it con- in the concerned, that record it is shows system text our govern- federal run that the busi- subsidiaries themselves ment, require corporation to de- nesses, instance, For not Rockwood. particular brought fend which suit is Clay’s person actually running Southern there. Stultz, Keith day-to-day operations is Shoe, 316-17, International 326 U.S. long-time em- Vernon Sumner. Stultz is S.Ct. 154. has no em- ployee its history with Rockwood or ployment

Having Tex reviewed Rockwood’s toto, corporation Laporte, which predecessor as forum contacts in we are satisfied Clay and em- enough previously owned Southern for minimum contacts. there Riordan, Piacentino, Tom holding company, ployed As a busi Mike no who now work for Rockwood.1 very specialized. Rockwood has others ness proceeded spe- proper. the Seventh Cir- through its whether this is As 1. Rockwood recently cuit noted: apparent under- appearance cial with the [Sjeveral recognized jurisdictional have standing forum contacts courts predecessor cor- jurisdictional contacts of con- are not to the forum include imputed to its successor poration corporation Rock- tacts of the from which offending process. corporation without due directly question wood We succeeded. Inc., Thoroughbred Power Boats See Patin v. Nevertheless, the admitted and uncon- wood directly extended into Texas its busi- tested evidence establishes that Sumner is owning ness of other businesses and di- highest ranking official at Southern rectly facilitating profitability. their Clay Clay’s and that Southern top man- disregard This Court should not corpo- agement is accountable to Sumner for the jurisdic- rate formalities to general defeat day-to-day operations of the business. Bearry, 376; Smith, tion. See 818 F.2d at Sumner also uses his office in Austin to 425 F.2d at 826. Rockwood could have serve as president and managing director severed its connection with by Texas hav- of a corporation second called Rockwood ing Sumner contract with Clay Southern Additives, Ltd., which is in located report directly Clay’s Southern Kingdom. United Sumner is ac- directly directors; board of yet, Rockwood chose to Rockwood, countable to practice both in enter Texas to contract and interact with by agreement. and written No evidence of directly corporate Sumner its capacity agreement written between Sumner Rockwood, not from behind the veil of Southern or its board of directors Clay’s board of directors. produced by Rockwood, has been though Rockwood has long contended that Sum- The above-listed contacts demonstrate , Clay’s ner is Southern employee. Regard- purposefully that Rockwood has availed less of whether that ultimately assertion is privilege conducting itself of the activi- false, true or the fact remains that Rock- corporate ties within capacity, its wood has adequately failed to address its rather than merely through its subsidiar- ongoing contractual relationship with Sum- Asahi, 109, ies. See 480 U.S. at 107 S.Ct. ner for services provides Sumner in Texas 1026. Rockwood’s activities have created under Texas law. a substantial connection with Texas. See id. Accordingly, we conclude that Rock-

Furthermore, Sumner’s services purposefully wood the mini- established paltry Rockwood are no shipping matter of mum necessary contacts to be amendable odd materials or corresponding by mail. Michiana, to suit in Texas. See They go to the heart of Rockwood’s busi- (“Certainly S.W.3d at a nonresident ness. In contracting directly with Sumner corporation subject ought to make to be to suit in ultimately Sumner accountable for profitability any jurisdiction Clay’s ‘enjoys of Southern where it the bene- busi- ness Texas but giving day- protection Sumner no fits and of that the laws to-day ”). function at Southern Rock- state.’ (5th Cir.2002) ("[A] 294 F.3d suc purposes of the other for the of the Interna corporation Patin, cessor that is deemed to be a analysis.” process tional Shoe due predecessor 'mere continuation’ of its cor 294 F.3d at 653. poration predecessor can be bound Sanofi-Synthela Purdue Research Found. v. corporation’s voluntary submission to the bo, S.A., Cir.2003) (7th 338 F.3d 783-84 court.”);

personal (s omitted). Co., Williams v. Equip. Bowman Livestock Given that the burden is on Rockwood to (10th Cir.1991) (“A 927 F.2d negate jurisdiction, all bases see BMC corporation’s contacts with a forum Software, 83 S.W.3d at and consider- imputed to its successor if forum law would ing undisputed the admitted and evidence hold the successor liable for the actions of showing that Rockwood succeeded from a predecessor.”). The Fifth Circuit Pa- corporation that had direct Texas forum explained tin that the rationale for such contacts, Laport’s we conclude that forum that, corporations rule is because the two contacts been addressed should have entity, jurisdictional "are the same con Rockwood. jurisdictional tacts one are the contacts Play re B. Fair Justice would call Substantial witnesses Rockwood Jersey.” find the first side in We New has Once it been determined particularly unper part argument of purposeful that the nonresident defendant same or similar could because the suasive ly established minimum contacts with the virtually of all nonresident defen be said state, the in forum contacts evaluated into court. As a being haled state dants of light other to determine whether factors corporation ongoing per national personal jurisdiction the assertion com Texas, Rockwood is vasive contacts with justice. ports play with fair and substantial type for this of out- especially well suited Asahi, 113-15, at 480 U.S. 107 S.Ct. 1026. conclude litigation. of-state We therefore (1) These factors the burden on the include in not militate that the first factor does (2) defendant, the interests of the forum any a meaningful respect towards conclu (3) in adjudicating dispute, the the state in maintenance of the suit Texas sion that interest in convenient plaintiffs obtaining play notions of fair and sub would offend (4) relief, judi and effective the interstate justice. stantial See World-Wide Volks system’s obtaining in the most cial interest 559. wagen, U.S. at 100 S.Ct. controversies, resolution of efficient (5) the several shared interest the argued the trial Rockwood also before furthering States in fundamental substan not court that the “interests of Texas are policies. tive social Volks World-Wide in calling served Rockwood court 559; wagen, 444 at U.S. 100 S.Ct. fact, In Texas. the inclusion Rockwood Asahi, 480 U.S. at 107 S.Ct. 1026. as a little than an defendant is more effort These considerations sometimes serve to compensation Texas workers’ subvert jurisdiction establish the reasonableness of by naming law a defendant a upon showing lesser of minimum con by the protected negligence from claims required. tacts than would otherwise be Al- scheme.” compensation workers’ Burger at King, U.S. S.Ct. argument is though foregoing ostensi- opposite may 2174. The also be true. suit, bly based on Rockwood’s aversion to is, That if even the nonresident defendant interests of the part speak of does purposely has established minimum con adjudicating dispute. forum state in state, tacts with the forum the exercise of See To extent the second factor id. jurisdiction may fair not be and reasonable implicated by argument, we conclude in under facts particular Burg case. strong sovereign interest King, 477-78, er 471 U.S. at 105 S.Ct. providing in a forum for lawsuits that seek corporations accounta- hold out-of-state in wrongful they deaths that cause ble for Rockwood’s brief the trial court may Clay That Southern be liable Texas. special support appearance in of its includ capacity same but in the death paragraph arguments ed a on the five party than a third employer rather paragraph factors above. enumerated The interest strengthen serves state’s contains no citation to or authorities evi providing single forum to resolve such dence, but we will nevertheless address factor controversies. The second there- Among points things, raised. other strongly fore militates favor the Villa- argued per exercise family suit gomez and maintenance their sonal in this case would be in Texas. fair repugnant play to notions of sub argued plain- that “the justice it “maintains no Rockwood also stantial because Texas, relief employees obtaining tiffs’ interest offices or fully served against suit Background [sic] South- I. ern without necessity of joining underlying brought suit was follow- Rockwood.” Given that no authority, evi- ing an incident that occurred on February dence, argument sup- was advanced in 11, 2003, Products, Inc. port statement, this we can surmise (“Southern Clay”), Gonzales, located in that it is no more than a point rhetorical Texas. Ismael Villagomez, an employee of premised largely procedurally on a untena- Southern was performing work in- ble presumption that Rockwood is not cul- side an empty tank mixing when a large pable for Villagomez’s Mr. death. At this quantity of steam was released into the early stage of proceedings, the merits tank, severely burning him and resulting of this case litigated should not be or in his death. brought Suit was on March presumed in Rockwood’s simply favor 13, 2003, by appellants, Lucy Villagomez, defeat the court’s otherwise constitutional Individually, and Representative personal jurisdiction exercise of over a Villagomez, Deceased, Estate of Ismael corporation.

nonresident (col- Villagomez Francisco and Maria Finally, argued Rockwood “[a]s lectively “Villagomez”). Claims were considerations, the last two system effi- brought wrongful under the Texas death ciency and furtherance of policies social statute and under the survival act. are both served declining exercise Southern Clay, a Texas corporation in personal jurisdiction over Rockwood.” 1950s, early business since the is a sub- Again, legal underpinnings of these scriber under the Texas Workers’ Com- arguments gone have undeveloped by pensation Act. Clay Southern was an inde- Rockwood. pendent company until it when was reasons, For these we conclude that purchased by Laporte, Inc. In La- Rockwood did not establish that mainte- Inc., porte, acquired by was Rockwood. nance of this suit in Texas would offend Clay Southern wholly is now a owned sub- play justice. notions of fair and substantial sidiary Rockwood, corpora- Delaware headquarters tion with Jersey. in New TV. Conclusion Villagomez alleges that in- Rockwood is The trial court granting erred dependently negligent for affirmative acts special appearance because Rockwood omissions, voluntarily and that it un- failed to negate the general existence of perform dertook to “it services knew or jurisdiction. addressing specific Without should necessary have known were for the jurisdiction, we reverse the court’s order protection Villagomez of Ismael and failed and remand for proceeding further consis- performing to exercise reasonable care in tent opinion. with this those Villagomez alleges services.” Southern relied on Rockwood for the Dissenting Opinion by Justice performance services, of those and that ERRLINDA CASTILLO. performance increased the risk of harm to Villagomez. Ismael Dissenting Opinion by Justice CASTILLO. special appearance, Rockwood filed a

Because I would affirm urging court’s that it has no connections inter- order sustaining special appearance actions with the State Texas sufficient appellee, Specialties, Inc. bring within the of a (“Rockwood”), respectfully I parties dissent. Texas court. The undertook con- companies, one subsidiary discovery jurisdictional on maintained siderable Clay. six at which Rockwood briefed including depositions which is question, tendered as ex- support posi- numerous documents were evidence to and tendered briefing (1) hibits. Extensive evidence it has done business tion that never to the trial court. was submitted (2) Texas, agents and is has no offices or (3) Texas, registered not to do business special appearance A was hearing on personal property in Tex- real or owns no 5, 2005, May 2005.1 On held March (4) as, no or other financial maintains bank trial court forwarded letter counsel (5) Texas, employees no stating: accounts (6) Texas, in Tex- target business does deposi- I have completely reviewed website, (and as, through mail or its objections by either excerpts, tion affidavits thereto) (7) and all of the evidence admitted to its Texas only and makes visits court, as as the briefs of before the well are within subsidiary operations to ensure parties my the own re- and conducted if other material budget and to determine all for a search. counsel well- Thanks it, sharehold- issues of which as sole exist presented and motion. well-argued er, ten- to be aware. Rockwood needs It is of opinion the the Court that the to show it never dered extensive evidence general have Court does not either safety to ensure the of South- undertook special jurisdiction Spe- over Rockwood its con- Clay employees only ern and that cialties, Special Ap- Inc. and the that Clay were those nor- tacts with Southern Inc. pearance Specialities, of Rockwood parent mal a and its interactions between should be SUSTAINED. urged that tra- subsidiary. Rockwood also court and requested play The that an order that ditional notions of fail* substantial ju- effect be In a formal justice by asserting submitted. order be offended would 24, 2005, May dated the trial court sus- over it. risdiction special tained appearance, by Rockwood includ- Evidence tendered it finding general had neither nor specific (1) testimony following: deposition ed the jurisdiction over Rockwood.2 Extensive Riordan, of Thomas Vice and the affidavit findings fact and of conclusions law for in Law and Administration President by were the trial on issued court June (2) Rockwood; deposition testimony and interlocutory appeal 2005. This ensued. Piacentino, Di- of Michael affidavit II. Jurisdictional Pacts in Issue Environmental, Safety Risk rector and (3) Rockwood; Management deposition special appearance In its and its later Abrunzo, paralegal testimony of Donna briefs, tendered evi- supporting Administration for Rock- and Director holding dence show (4) wood; testimony and the deposition company operations no of its own. It Sumner, separately affidavit of President owns stock thirteen Vernon rulings specifi- hearing, parties objections and thereon 1. At the tendered their testimony, respective deposition question and cally language exhibits and itemize the objections parties as well to affidavits. The objection. twenty-one Of basis for presented argument, taken and all was under testimony, objections deposition but all by the trial advisement court. objections twelve three overruled. Of the testimony, all but one are over- affidavit date, 2. That court issued rul- same appeal ruled. No issues are raised ings Villagomez’s objections deposition on objections. relating to of these testimony and affidavit tendered Rock- appearance. support special of its wood (5) Clay; testimony Southern deposition May for a materials 2001 accident at Holmes, (8) Richard Manager Safety Clay; report Southern the MSHA and Systems Health and Environmental investigation February materials for the (6) Clay; Southern agree- the employee 2003 accident at in- Clay Southern Villagomez ment between Ismael (9) Villagomez; copies volved of Southern (7) Clay; Southern deposition testimo- Clay’s investigative internal reports from ny Stultz, and the affidavit of Keith (10) incidents; the 2001 and 2003 Southern Operations Manager Clay. at Southern Clay’s objecting letter to to the MSHA report January MSHA

Villagomez contends that the evidence (11) incident; (a) Clay Southern hazard Sumner, establishes that president of (12) reports; near-miss various e-mail in reality employee Southern Rockwood, Clay communications Southern living between performing services (b) (13) Texas; re- personnel; and Rockwood various Rockwood issued mandato- ry Safety, Health ports Clay Rock- Environmental submitted (“SHE”) (14) Manual prescribes safety management department; wood’s risk (c) policy subsidiaries; self-audits; Rock- copies sample of Southern (15) wood has inspections conducted numerous authority from providing documents and performed safety at training Southern mo- Clay Rockwood Southern to borrow Clay in Villagomez urges (re- Texas. further nies and associated loan documents that Rockwood property owns Texas Southern flecting loan from Rockwood to (i.e., the business records of Southern (16) Clay); report, property conservation and Clay), that Rockwood has entered into prepared on of risk behalf Rockwood’s Texas, other contracts with entities relating management department, thereby jurisdiction subjecting itself to the (17) site; Rock- Clay’s Southern work of Texas courts. agreement wood’s administrative services (a corporation, with a Texas HealthFirst

Villagomez documentary submitted evi- benefits); third administrator for party dence, (1) including the following:3 infor- (18) management poli- records Rockwood’s (2) website; from mation Rockwood’s (19) cy; with employment contract Management Program Rockwood’s “SHE Clay’s Sumner president, Southern Vernon Manual,” Guidance as excerpts as well ap- his and Rockwood’s announcement of from that manual including sample guide a (21) listing pointment president; as a (3) incident; investigating major for at emergency posted contact numbers summary of annual performance SHE Clay contact (4) Southern which includes the 2002; Clay, Southern September dated Piacentino; number for Rockwood’s Mike clay summary additives SHE Divisions (22) and its (5) Clay’s safety Southern 2001; policy dated report January Rockwood (23) space entry loss reports procedure; confined January May SHE for and (6) reports party control by Piacentino;, prepared by authored Mike a third item- listing Clay, exam- copies relating ized and Southern to boiler itineraries for (24) 2001; visits made ination in December and Villa- personnel Rockwood gomez’s employment agreement Texas between and March November 2000 (executed therefor; (7) including Clay par- purposes at time when Southern Inc.). Safety Laporte, Villago- the Mine Administra- company Health ent was (“MSHA”) tion report investigation provided testimony deposition mez also listing purposes hearing This not all-inclusive. Rockwood on dence for of the agreed object Villagomez’s not to jurisdiction only. to the evi- (10) Abunzo, Piacentino, Clay’s safety programs; Thom- Donna Michael Southern Sumner, Riordan, ensure and Keith Rockwood has not undertaken to Vernon support safety employees Stultz its contention special be appearance should exercised (11) theory; denied. has on that Rockwood minimum with Texas insufficient contacts largely Rockwood’s contentions were juris- support personal the exercise of findings in the adopted by and reflected diction. fact court.4 The trial issued trial court also issued conclusions of law which III. ON APPEAL ISSUES (1) Rockwood min- reflect: has insufficient ap- raises issues on Villagomez seven imum contacts with support Texas (1) court err in sus- did peal: general jurisdiction, exercise of and the (2) did taining special appearance; it; personal jurisdiction has no court over satisfy negate all burden (2) support facts do not that Rockwood personal jurisdiction; possible bases Texas; (3) “general presence” Villago- (3) (4) legally sufficient and evidence and, therefore, plead ego mez did not alter findings factually sufficient sustain the (4) jurisdiction; theory support cannot (5) law; fact conclusions of if ego alleged, Villago- even had alter been Rockwood’s contacts with sufficient mez has not sustained its burden to show (6) general jurisdiction or to establish that Rockwood exercises control over the (7) jurisdiction; did the trial specific business affairs operations and of South- misplace proof for a court burden greater ern to an extent than normally special appearance. associated owner- with common (5) ship; Villagomez plead prove did not or IV. OF REVIEW STANDARD “joint

any theory enterprise,” of and disa- (6) any theory; on personal jurisdic- vows reliance even a court Whether available, “joint enterprise” if is a were facts tion over a nonresident defendant (7) do not its support application;5 question Belgium, Villa- of law. BMC Software Marchand, 789, gomez’s causes of do not to or v. 794 action relate N.V. 83 S.W.3d (Tex.2002). However, out trial fre- arise of action or failure of Rock- the court (8) Texas; questions wood to quently act Rockwood has resolves fact before If deciding jurisdictional question. sustained its burden to Id. demonstrate the specific special in this trial enters an order on a does exist a court (9) case; respect un- also of fact negligent appearance findings with to a issues law, dertaking theory, no chal- party Rockwood conducted and conclusions findings legal in- factual inspections equipment lenge fact on specific incident, Clay sufficiency Unchallenged grounds. volved and Southern Id. safety binding appellate neither are on the upon findings relied Rockwood for fact Peat upon guidelines respect nor to court. Hotel Partners v. KPMG single findings Villagomez ego, proposed plead did not alter 4. Rockwood submitted 67 proposed enterprise. of fact 14 conclusions of law to enterprise, joint Villa- business or court; Villagomez objec- the trial submitted consistently only gomez alleges that Rock- proposals proposed tions to alterna- those wood’s direct acts in and contacts with Texas findings fact of law. tive and conclusions subject jurisdiction in a it to sufficient findings issued fact and trial court 65 Texas court. law, substantially 11 conclusions of similar Rockwood’s submissions. 748

Marwick, 630, 847 (Tex.App. S.W.2d 632 A findings of fact are re court’s denied). 1993, -Dallas writ legal sufficiency We conduct a viewable for and factual de novo review applying when evidence the same law to standards applied reviewing legal facts. El Puerto and factual Liverpool, de de S.A. sufficiency C.V., C.V. v. of the evidence supporting Servi Mundo Llantero S.A. de jury’s Points, 622, finding. 82 Anderson Seven S.W.3d 622 (Tex.App.-Corpus 791, (Tex.1991); 806 S.W.2d 2002, 794 see Christi also pet. w.o.j.) dism’d (op. on Jones, (Tex. 770, (en Ortiz v. banc). 917 772 S.W.2d rehearing) If an order on a 1996). facts, reviewing When special appearance is based on undisputed ... final facts, sufficiency test must legal otherwise established such as always at trial where be whether the evidence the nonresident defendant does not would and fair-mind- enable reasonable challenge the trial fact, court’s findings of ed the verdict people to reach under the exercise personal jurisdiction is a reviewing court be- review. Whether a question of law we review de Hap novo. gins by considering all the evidence or py Inc., Corp. Specialties, Indus. v. Am. verdict, supporting the evidence 844, 983 S.W.2d 848 (Tex.App.-Corpus legal-sufficiency proper review 1998, pet. w.o.j.). Christi dism’d light if must credit favorable evidence A trial court’s conclusions of law are not could, jurors disregard reasonable Court, binding on this and we are free ju- contrary evidence unless reasonable legal make our own conclusions. Harlin rors could not. gen Irrigation Dist. Cameron County No. Wilson, 802, City Keller v. 168 S.W.3d 1 v. Caprock Corp., Communications 49 (Tex.2005). are to review the We evi 520, S.W.3d 530 (Tex.App.-Corpus Christi dence “in the most favorable to the light denied); pet. Muller v. Nelson Sher verdict, disregarding contrary all evidence Carter, (Tex. rod & S.W.2d jury reasonable could have disbe writ). Civ.App.-Fort Worth no lieved.” Ysleta v. Mon Indep. Sch. Dist. When we conduct our de novo review of arrez, (Tex.2005) (per law, conclusions of judgment will be curiam). presented If the evidence at trial if upheld it can legal be sustained on permit would reasonable and fair-minded theory supported by the evidence. Har conclusions, people to then their differ Dist., lingen Irrigation 49 at 530 S.W.3d Keller, jurors must allowed to do so. be Ctr., (citing Circle C Child Dev. Inc. v. trier-of-fact, 168 S.W.3d at 822. The Dist., Travis Appraisal Cent. 981 S.W.2d jury, whether the re trial court or the 483, 1998, 485 (Tex.App.-Austin pet.)). no credibility mains the judge sole of the A trial court’s conclusions of may law not the weight give witnesses and the their be sufficiency reviewed for factual and testimony. may Id. at 819. It choose to may be if only they reversed are erroneous another, believe one witness and disbelieve as a Energy, matter of law. Stable L.P. v. impose and court cannot reviewing Newberry, 538, 999 547 (Tex.App. S.W.2d opinions contrary. own to the Id. If the 1999, denied); pet. -Austin v. Fire at evidence trial would enable reasonable Hofland Co., 597, man’s Fund Ins. 907 599 S.W.2d people and fair-minded differ their writ). 1995, (Tex.App.-Corpus Christi conclusions, no jurors then must allowed require Incorrect conclusions of law do not reviewing do so. Id. at “A court 822. reversal, provided controlling judgment cannot substitute its for that of findings support trier-of-fact, of fact legal correct long so as the evidence theory. Energy, Stable 999 at S.W.2d 547. falls within this zone of reasonable dis-

749 if a proper is nonresident Id. court must consid- Jurisdiction agreement.” “[T]he “minimum con- has defendant established light most er evidence in the favorable and maintenance of tacts” with Texas verdict, indulge every reasonable “traditional notions will offend suit if the support it. But inference that would justice.” Int’l play fair substantial inference, only one nei- evidence allows of 310, 316, Wash., 66 v. 326 U.S. Co. Shoe jurors may reviewing ther nor the court (1945). 154, pur- 90 95 The L.Ed. S.Ct. disregard it.” Id. analysis is to pose of minimum contacts insufficiency reviewing factual When haled being from protect defendant considers, complaints, weighs this Court relationship Texas into court when its supports and examines all evidence which jurisdiction. support is too attenuated finding. or undermines the Golden See 806; Schlobohm, Coleman, at 83 S.W.3d Jackson, 757, Eagle Archery v. 116 S.W.3d at 357. Focus therefore 784 S.W.2d (Tex.2003). finding 761 is set aside expec- activities and upon defendant’s if the too only standing evidence alone is Coleman, at S.W.3d This tations. 83 finding support finding weak to requires “pur- analysis defendant against weight is so overwhelming privilege avail” itself of posefully unjust the evidence manifestly Texas, conducting thus invok- activities clearly Id. wrong. protections of Texas ing the benefits and Rudzewicz, laws, v. 471 Burger King Corp. V. JURISDICTION PERSONAL 475, 2174, 462, L.Ed.2d U.S. 105 S.Ct. 85 (1985), such that the defendant could 528

A. Minimum Contacts with being into a reasonably anticipate called the Forum State Volkswagen court. Texas World-Wide personal juris- Texas assert courts Woodson, 297, 100 444 U.S. Corp. diction over a nonresident defendant (1980); 62 490 S.Ct. L.Ed.2d Cole- if such is authorized the man, will S.W.3d at 806. Jurisdiction 83 statute, long-arm consistent random, if fortui- not attach contacts with federal and state standards of due Id., tous, Royal, or attenuated. Guardian process. See Tex. Civ. Rem.Code Prac. & nature quality at 226. The 815 S.W.2d (Vernon §§ number, Ann. contacts, 17.001-17.093 than their rather Coleman, Am. Supp.2006); Type Vernon Culture analysis. are the focus Collection, Coleman, 806; Inc. v. Royal, 83 S.W.3d Guardian S.W.3d (Tex.2002); Royal Guardian Exch. at 230 n. 11. Assurance, English Clays, Ltd. v. China century, half a the touchstone For P.L.C., (Tex.1991). 815 S.W.2d jurisdictional process “pur- due been “as long-arm statute reaches Hanson v. poseful availment.” Since far as the require- federal constitutional Denckla, “it in each is essential case process ments due will allow.” Cole- act which the defen- there be some man, (citing 83 at 806 S.W.3d Guardian purposefully dant avails itself of 226). Royal, 815 at The statute S.W.2d within privilege conducting activities “doing particular' lists acts that State, constitute thus the bene- invoking the forum business,” provides but also that “other Three protections of its laws.” fits him may place acts” of the nonresident relevant aspects requirement of this First, requirement. the defendant’s “doing within business” here. it 355, pur- Schapiro, 784 with the forum count: Schlobohm v. S.W.2d contacts (Tex.1990). “ensures that defen- poseful availment 357 750 jurisdiction

dant will not be haled into a action and the contacts defendant’s means solely aas result of ... contacts, ‘unilateral litigation that those with the both activity party of another per- or a third forum, meaningful, and the must be ” Second, son.’ the acts relied on must “random, fortuitous, or attenuated.” Aha “purposeful” be rather than fortuitous. di, 61 at 719. The S.W.3d substantial Sellers who beyond “reach out one state connection between the nonresident defen and create continuing relationships and necessary dant and the forum state obligations with citizens of another finding of minimum contacts must come subject state” are jurisdiction to the by action or conduct of the nonresi about the latter in suits based on their activi- purposefully dent defendant directed to contrast, By ties. a defendant will not Royal, ward the forum state. Guardian jurisdiction be haled into a solely based An 815 at 226. element of foresee S.W.2d “random, isolated, on contacts that are ability implicit is also the “substantial Third, or fortuitous.” a defendant must requirement; connection” nonresident benefit, seek some advantage, or profit reasonably able to defendant should be by “availing” jurisdiction. itself of the may subject predict personal be Ahadi, Easy Country, Michiana Livin’ jurisdiction Inc. v. the forum state. 61 Holten, (Tex.2005) 777, However, 168 S.W.3d 784-85 “foreseeabil S.W.3d at 719-20. (citations omitted). ity” necessarily determinative when is not the nonresident de considering whether Specific B. Jurisdiction “mini fendant established purposefully A nonresident defendant’s minimum forum state. mum contacts” with the contacts with Texas may gen confer either 815 at 227. Royal, Guardian S.W.2d BMC, specific jurisdiction. eral or 83 S.W.3d at 795. In conducting specific ju Jurisdiction C. General analysis, risdiction focus is on the relation in the activities Where the defendant’s Rockwood, ship between the state of Tex juris systematic, continuing forum are as, litigation. and the Royal, Guardian a relation may proper diction without 815 S.W.2d at 228. Activities of defen particular act ship defendant’s between the dant in may the forum be isolated or dis In these in issue. and the cause of action jointed, but where the cause of action in cases, general. jurisdiction is said to be ju issue arises a particular activity, from BMC, 796; Royal, 83 at Guardian risdiction attaches S.W.3d specific. and is said to be Schlobohm, 228; 784 S.W.2d 815 S.W.2d at licopteros He Nacionales de Colombia requires a Hall, at 357. “General 466 414 n. 104 U.S. S.Ct. BMC, conducted sub (1984); showing that the defendant 80 L.Ed.2d 404 forum, Schlobohm, a more stantial within the (citing at 796 activities S.W.3d 357). analysis contacts demanding at Even a act or minimum single BMC, event, jurisdiction.” if it than for gives specific creates or rise to the CSR, Link, action, plaintiffs (citing Ltd. v. cause constitute S.W.3d (Tex.1996) (orig. pro sufficient minimum contacts support 925 S.W.2d specific jurisdiction. Burger Royal, exercise of 815 S.W.2d at ceeding); Guardian 228). 18, 105 2174; King, 471 U.S. at 476 n. A must have conducted S.Ct. nonresident Ahadi, (Tex 714, activity Ahadi v. 61 in the forum S.W.3d 719 more substantial denied). 2001, ju general to exercise App.-Corpus pet. Christi state for the state requirement specific This for a “substantial con than it to risdiction exercise CSR, jurisdiction. nection” at 595. plaintiffs the cause of 925 S.W.2d between

751 Proof The Burden of Issues The Burden Proof A. D. of alleges in its second issue Villagomez a initial burden plaintiff bears the While satisfy burden failed to its Rockwood a allegations bring sufficient pleading of for personal possible all bases negate the provi nonresident defendant within issue, Villago- In its jurisdiction. seventh Coleman, statute, long-arm of 83 sions the misplaced court mez that the trial alleges (citing Edgar, at v. 807 McKanna S.W.3d special appear- proof the of burden (Tex.1965)), upon 930 the 388 S.W.2d ance. filing special appearance of the nonresi to ne dent defendant assumes the burden noted, Rockwood bore As previously personal jurisdiction all of al gate bases of negate personal all bases burden to Coleman, by plaintiff. 83 leged jurisdiction alleged by plaintiff. Cole- CSR, 596; 807; at at 925 S.W.2d S.W.3d CSR, man, 807; at 925 S.W.2d S.W.3d Middleton, Corp. Kawasaki Steel Middleton, at 203. 596; 699 S.W.2d (Tex.1985) curiam). (per S.W.2d it jurisdictional allegations, specific Absent jurisdictional of In the absence sufficient all negating potential its burden of meets allegations by plaintiff, the defendant evi- jurisdiction by presenting bases of potential its of all negating meets burden dence that it is nonresident. M.G.M. jurisdiction by presenting evi bases KPMG, 2; Grand, n. at 408 8 S.W.3d is a dence that nonresident. M.G.M. In petition, Villagomez at 634. Hotel, Castro, Grand Inc. v. 8 S.W.3d following allegations: specific made the n. 2 (Tex.App.-Corpus no Christi conducts business Texas Rockwood KPMG, pet.); 847 S.W.2d at 634. maintaining an employee Texas

generally conducting business in Texas. addition, un- voluntarily In Rockwood VI. ANALYSIS in Texas perform dertook to services jurisdic- This is not an instance where it knew or should have known were placement tion arise based upon necessary protection for the residents particular product of a into the stream of of Texas. Rather, Villagomez alleges commerce. findings of and conclusions specific general that both fact (1) exist, law the trial court reflect principally upon based exis- issued employee proper proof. allocation of the burden of living tence of Rockwood Texas; (2) They undertaking that “Rockwood sustained Rockwood’s state demonstrating that it does provide safety Clay its burden of services to Southern employees, including not minimum contacts provision alleg- have sufficient edly mandatory safety support of Texas to the exercise policies, and State Villago- it.” sending general jurisdiction over employees Texas business, safety obviously disagrees mez with the inspec- to conduct conduct (3) the facts and the con- safety training; tions and the mainte- court’s evaluation of (i.e., them, es- to be drawn from property nance Rockwood clusions only way it could Clay); sentially argues records that the the business of Southern (4) was to reverse the entry into con- have concluded it did various proof.6 in Texas. burden of tracts with other entities juris- ego joint enterprise] aas basis for I note the of law which related conclusions diction,” appropriate at this Villagomez's whether failure its burden of to sustain stage, unnecessary conclu- support ultimate "proving of alter facts theories 752

I would conclude from by the evidence ten- “assigned employed and our subsid- by parties dered each of the iary, that bur- Clay.” report Southern He did direct- proof den of not improperly was allocated ly president. to Rockwood’s Sumner did remained, times, at upon and all Rockwood participate in Rockwood’s executive bonus party opposing jurisdiction. The plan. Villagomez alleged by that virtue of record that reflects did tender presence employ- Sumner’s Texas as an evidence to rebutting specific directed Rockwood, ee of Rockwood maintained a jurisdiction allegations by of raised Villa- place of business It also Texas. cited to gomez, negate as well as evidence all for expendi- the need Sumner to clear all possible jurisdiction. for bases ture requests for Southern excess $250,000 company. of parent

Villagomez’s all remaining issues deal sufficiency with the sup- evidence Other evidence all reflects that Sumner’s port the court’s finding special trial toas by and paid salaries bonuses are Southern general jurisdiction, and such that the trial benefits, all Clay, including all his insur- court sustaining erred in special ap- ances, and compensation workers’ unem- pearance. weight I address the and mer- benefits, ployment expenses, travel and its of that evidence below. car, company paid provided are by for Clay, all Southern taxes are withheld and Specific B. Jurisdiction office, staff, paid by Clay, Southern his above, As noted where the cause of ac equipment supplied paid for tion in from particular issue arises activi responsible Southern and he is ty, jurisdiction attaches and is to be said Clay., the business affairs Southern Nacionales, specific. Helicopteros 466 BMC, 1868; U.S. at 414 104 n. S.Ct. 83 It common of a parent wholly- is for the Schlobohm, 796; at S.W.3d 784 at S.W.2d subsidiary owned to exercise exclusive au event, single 357. Even a act or if it thority firing over the hiring and creates or rise to gives plaintiffs cause subsidiary’s v. officers. Zamarron Shinko action, (Tex. therefore a suffi Co., Ltd., constitute 142 Wire cient Burger King, minimum contact. 2003, pet. de App.-Houston [14th Dist.] 2174; Ahadi, nied) U.S. at 476 n. 105 S.Ct. jurisdiction (holding that over the 719. A S.W.3d at “substantial connec did not at parent corporation non-resident tion” plaintiffs must exist between the complete au parent’s tach cause of action and the defendant’s con thority general policy over decisions tacts, and meaning the contacts must hiring firing subsidiary, including ful, “random, fortuitous, not or attenuat in approval capital officers sizable Ahadi, ed.” vestments, 61 S.W.3d is show control insufficient operations and over the internal business Employment 1. The Status of Sumner jurisdictional subsidiary affairs alleges Villagomez Clay’s see Em. Z. purposes); Southern also Dunn A/S (S.D.Tex. president Svitzer, actually employee was F.Supp. 1995) not Clay. (holding parent corporation Rockwood and The em- that a ployment of a forum agreement subject reflects Sumner was not Rockwood, subsidiary merely pres- indeed hired but that he was state because its indeed, special Villagomez appearance. sion on Rockwood’s in its brief disavows finds, instance, upon court first each reliance those theories. and, plead theory Villagomez did either safety directly to relate to there, alleged ties unless the are doing ent or business therefore, involving and, incident to the parent such domination and foreign exerts jurisdiction. triggering specific Villagomez, they that subsidiary over its control entities, stating and reality separate not in that tendered evidence Villagomez may'have complete au- parent that “[t]he the SHE Manual provided Rockwood thority general policy over decisions at the policies argues subsidiary, including matters such as se- subsidiary, mandatory for its therein were lines, product hiring firing and of lection Clay complied with and that Southern officers, approval capital and of sizable evi- Villagomez those tendered policies. investments, being without considered alleged support its contentions dence company.”). (a) exercise domination moni- personnel as Rockwood follows: plead- trial court found no or evidence and Clay’s compliance tored Southern allegations (b) ing support any ego of alter risk Rockwood’s safety performance; single Piacentino, and em- enterprise, Villago- or business as well as other manager, rely ployees, provide mez does not on those theories. traveled to Texas to (c) basis; safety on a continuous services I would conclude the evidence was in- arranged safety-related Piacentino factually and legally support sufficient audits; surveys, spections, training, findings the trial court’s that Rockwood (d) corresponded regularly Piacentino subjected jurisdic- could to Texas e- Clay employees through with Southern upon tion based the status of Sumner’s (e) issues; safety mail Piacentino about employment, approval large process to Texas to haz- perform traveled capital expenditures, or on the mainte- 2001, 2002, 2003; ards audits in nance of a place business Texas (f) name is included on a list Piacentino’s virtue of Sumner’s or residence business Clay personnel as with various Southern activities. emergency in the of an contact event facility. Voluntary Undertaking 2. The Provide Services to Benefit Rockwood countered with evidence Employees directly instances controverts some in- allegations Villagomez. In other Villagomez alleges next that Rockwood in- stances, disagrees Rockwood with voluntarily to perform undertook services terpretation meaning evi- the same in Texas that it knew or should have Villagomez, cites dence tendered necessary protection known were for the support interpretations. evidence Texas, including the provi- of residents of allegedly mandatory safety policies, sion of presented testimony to show Rockwood sending employees Management Pro- to that Rockwood’s SHE business, safety inspec- gram provided Texas to conduct Manual is indeed Guidance tions, guidance purposes only, safety training.7 These activi- that Southern plaintiffs upon recognized protecting the defen Supreme relied 7. The Texas Court has (4) theory negligent undertaking requiring performance, or the defendant’s dant’s following specific duty the submission of the performance plaintiffs’ increased the risk (1) predicates: undertook to defendant Stutzman, Torrington 46 S.W.3d harm. Co.v. perform services that knew or should have (Tex.2000) (citing the Restatement necessary pro- plaintiffs' for the known were (1965)); (Second) § Coastal of Torts see tection, (2) the defendant failed to exercise Torres, (Tex. Corp. v. 133 S.W.3d services, performing those reasonable care in denied). pet. App.-Corpus Christi (3) charged parly a third and either Clay had been in many business for years neither Rockwood nor Piacentino ever di- acquisition Rockwood, before its by and or any safety rected conducted audits at had developed, implemented, (5) and contin- Southern Clay; Clay Southern con- rely ued to solely upon (6) self-audits; its own safety ducts its own Piacentino policies procedures. and Additional testi- monthly receives reports safety on statis- mony reflected that Clay policies Southern tics from Clay, Southern he as does from procedures and already place (7) met subsidiaries; all Rockwood Southern exceeded those provided in Clay and not hired a third party Rockwood guidance manual, and that Clay Southern to audit, consult respect with to one and no personnel rely did not upon and felt no such third-party evaluators were hired modify need to existing policies (8) Rockwood; conform on one visit to Southern suggestions. Clay, Piacentino in general addressed only protocol terms for conducting a It is undisputed that Piacentino traveled (9) safety audit;8 Piacentino does not di- occasion, Texas on purpose but the Clay’s safety rect operations; Southern most of those directly visits is disputed. (10) safety Clay Southern has its own man- Although it is undisputed that Piacentino (11) agement team; Clay’s own Southern communicated e-mail with all subsidiar- personnel, (operations including Stultz issues, ies about safety the nature of that (SHE manager) manager), and Holmes interaction in dispute. Rockwood responsible identifying implement- agrees that Piacentino is Rockwood’s risk ing Clay’s safety policies Southern manager responsible for securing (12) procedures; Clay’s safety Southern package insurance for Rockwood and all program is not submitted to Rockwood for subsidiaries; its however, subsidiaries, (13) approval; investigated inci- MSHA including Clay, pay Southern for their own Clay dents at in 2001 and Southern coverage. He key is the contact with the and all issued MSHA citations were insurance companies. He also monitors Clay Southern not Rockwood. the safety performance of Rockwood’s sub- However, sidiaries. Rockwood also ten- Villagomez alleges jurisdiction also at- dered evidence to that it show never un- taches because Piacentino led the accident dertook to direct or safety ensure investigations following the 2001 and 2003 Clay Southern employees. Evidence incidents Clay, and Piacentino Southern (1) showed Southern responsible was authored investigation reports the accident (2) for its training; own Southern provided to in each instance. MSHA rather than Piacentino, Rockwood or per- Rockwood counters that while Piacentino formed its equipment own inspections to was admittedly investiga- a member of the determine when equipment might new tion teams for the (Villago- 2001 and 2003 required mez) and to ensure safety incidents, he did not lead either in- (3) equipment; neither Rockwood vestigation. nor Pia- Evidence was tendered to centino prepared, required, or conducted show that primary he was a contact with (4) any safety training at Clay; Also, insurers and with MSHA.9 evidence Deposition testimony was tendered to announcing show 9. A letter was forwarded that although investigative written documents Piacentino would lead the reflect team death; inquiring Villagomez’s into Ismael process Piacentino conducted hazards audit handwritten notes of one team member also actually that event consisted of Pia- indicated Piacentino was leader of the team. providing centino instruction on hazards au- Deposition testimony of several individuals protocol. dit directly was tendered to controvert this al- normal, nesses, constituted did confirms that Piacentino author MSHA, be- from all team one would find reports input routine interactions subsidiary.10 members. parent tween finding agreed, issuing trial court “Specific jurisdiction if the is established effect, multiple findings as other well alleged liability from or defendant’s arises Rockwood’s evidence consistent with activity is related an conducted within to interpretations. v. Corp. the forum.” Commonwealth Gen. (Tex.2005) York, (per S.W.3d I mindful that the trier-of-fact remain curiam). Any contacts of Piacentino with judge credibility of sole remains the respect investigation of the 2001 to the to their weight give the witnesses incident not to the 2003 inci- are related Keller, at It testimony. 168 S.W.3d to giving potential dent rise to believe one witness choose token, liability. By the same Piacentino’s another, reviewing and a court disbelieve participation investigation in the 2003 took impose own to con- opinions cannot the incident, and are place subsequent the Id. trary. If the evidence trial would not therefore also related to Rockwood’s people enable and fair-minded reasonable liability. trial potential The court could conclusions, jurors to differ in their then in- property conclude these contacts were I Id. at 822. must be allowed do so. give specific jurisdic- sufficient to rise to court appellate am further mindful that an tion. liability issue on the is not assess court fact The trial also considered the merits, and extent but rather nature that MSHA citations were issued any purposeful contact Rockwood with Rockwood, Clay and but Southern not to only. jurisdictional purposes Texas for authority that MSHA has to issue citations established if the “[Sjpecific jurisdiction is parent to a where it has taken over the alleged liability from or defendant’s arises safety The programs subsidiary. an activity is related to conducted within reasonably trial could that court infer CSR, at 595. the forum.” 925 S.W.2d not MSHA did conclude that Rockwood jurisdiction Specific requires “substantial safety responsibilities had taken over plaintiffs connection” between the cause Clay. Southern contacts, such action and the defendant’s respect remaining potential With contacts, litigation those that both with jurisdiction specific

bases for as set out forum, “ran- meaningful, not above, conflicting evidence existed and Ahadi, dom, fortuitous, or attenuated.” parties conflicting applied interpretations. at 719. S.W.3d Rockwood contends com- that Piacentino’s weigh required court Clay trial was regarding munications with Southern I before it. safety his and balance evidence were consistent with communi- legally cations all that would conclude evidence Rockwood subsidiaries factually varying of busi- to sustain the engaged were sorts sufficient investiga- Clay simply leged leadership were routine actions between role. The internal report type tion lists nine members the investi- will parent subsidiary, of the and its team, gative with Piacentino listed last. trigger par- personal over general juris- Preussag applies ent. Because Preussag Aktiengesells cited 10. Rockwood specific jurisdiction, dis- than I diction rather Coleman, 119-20 chaft depth argument when I address cuss Dist.][2000, (Tex.App.-Houston pet dism’d [1st general question jurisdiction. w.o.j.]) urge that its contacts with Southern findings court’s the interactions of formation related to the business located Roekwood with on safety in the United Kingdom, whether or not issues were not such they trig- would Sumner actively participated in that busi- ger specific jurisdiction. ness, is ju- irrelevant to the assertion of risdiction over Roekwood. C. General Jurisdiction and “Contin- Villagomez general jurisdic- also asserts Systematic” uous and Contacts tion proper upon based Rockwood’s rec- Villagomez urges that the various com- ords management policy, which reflects (a) munications between Roekwood that all records are owned by the relevant Sumner, through in his capacity as head subsidiary Similarly, Roekwood. of Rockwood’s additives business Roekwood is a third party beneficiary (b) Kingdom, United and Piacentino with Ismael employment Gomez’s contract with Southern if even not sufficient to Southern respect with to intellectual establish specific jurisdiction, did reflect a However, property. Rockwood’s owner- systematic and continuous interaction suf- ship of property records or intellectual ficient trigger general jurisdiction. only, Clay’s derivative behind Southern Villagomez urges also that Roekwood con- ownership, principally and derives from ducted other business in Texas in a “con- ownership Rockwood’s 100% of Southern systematic” tinuous and manner sufficient Clay. ownership “Stock and the related to trigger general jurisdiction. right of ownership gives control that stock Villagomez urges general a [even stockholders sole stockholder] can attach upon based Sumner’s work in are insufficient to destroy the distinctness his employee, role as a dual performed in corporate jurisdictional pur- entities for Austin, the benefit of Rockwood’s Commonwealth, poses.” 177 S.W.3d at clay additives in business the United Kingdom between 2001 and 2005. Villa- gomez contends this amounts to main- Villagomez points also to travel of vari taining a business in office Texas for the ous other employees Roekwood to Texas benefit of Controverting Roekwood. evi- for business. These visits include the fol (1) dence (two was tendered Roekwood to lowing: president Rockwood’s vis show that Kingdom United business its in 2002 and one in 2003 for business Roekwood, subsidiary review, is not a “global which is and a visit to attend a sales (2) holding company a 11); meeting” United States in Rock- Austin in 2002 (four based An entirely separate, subsidiaries. president wood’s in former visits related, company albeit holding unknown, is the purposes for the third two company for all overseas corporations. Sumner, visit to meet with and the fourth matters, To further confuse Sumner to attend a bond meet rating agency and (3) (once would report in president ing); Rockwood’s Rockwood’s Controller in well, (4) instance as review); but individual 2002 for business apparently also served a dual role and Vice President for Law Administration (three held office respect separate review); to the times in 2002 for business (5) company (one owning the overseas legal interests. Rockwood’s senior counsel Therefore, I would conclude that in- subsequent Villagomez visit inci sentatives, testimony 11. Roekwood tendered to show this and that Roekwood has no sales "global meeting” solely sales in fact related force. Clay’s repre- business and its sales (three (6) Additionally, administra dent); some site interest. Rockwood’s CFO in In each provided. was tive assistance visits, in 2001 one in visits two stance, parent, Preussag was remote and once for business review once specific company in the holding interest 2003). subsidiaries, in sever sometimes through remaining per- The travel Rockwood commu layers. al There were additional visits Piacentino. He sonnel involved the subsidiaries nications between 2003 that 2001 and made visits between sporadic There were Preussag in letters. (MSHA visit), (2) (1) May 2001 included represen meetings company two between (site (3) visit), February 2003 May 2002 all of determined that tatives. court (two separate Villago- visits related to the normal, corporate were interactions (two (4) incident), addi- April mez audits; occasional unified actions “such as Villagomez related inci- tional visits re for the annual procedures financial dent). Piacentino also communicated with ...; ‘banking’ system, a unified porting safety relating to sta- personnel expenditures approval large ... parent tistics, 2001 and respect and with adopting budgets; consideration and, noted, he previously 2003 incidents communi and the group system; benefits participated as member of Southern accompany these cations and visits Clay’s and 2003 teams. investigation 2001 The at 118-19. court activities.” Id. con- Villagomez alleges that Piacentino’s Preussag’s “routine activi concluded trigger general tacts alone are sufficient to it system not make ties” within its did jurisdiction over Rockwood. it in because amenable suit Texas urges the trial court any “purposeful contact failed show properly concluded that various visits Id. at The contacts with Texas.” 123. sporadic and interactions were and con any provided to mem type were of the normal, formed to routine interactions family loca corporate ber of its subsidiary corpora a parent between and addition, In tion. Id. the direct commu tion, Preussag Ak relying heavily upon and Preussag nications between its Coleman, tiengesellschaft v. 16 S.W.3d only, since subsidiaries were “fortuitous” 110, (Tex.App.-Houston 119-20 [1st di “banking system” issue was not Dist.][2000, w.o.j.). pet Preussag, dism’d Texas, the subsidiaries rected toward and holding corporation, a German had rela ego. its Id. at 124. “Oc were not alter tions with indirect Texas subsidiaries by travel to Texas is insufficient casional which were its sole contacts with Texas. system and itself to establish continuous alleged jurisdiction The bases for over (citing at 124 atic contact.” Id. Garner Preussag provision were the subsidiaries’ Pty., Austl. 966 S.W.2d v. Furmanite reports, their of financial reference 798, Houston (Tex.App.-1st Dist.] 803 delineating denied) stan Preussag’s ju “Greenbook” general no (holding pet. accounting procedures, German dard eight over made risdiction individual who Texas); of lines of credit to subsidiaries provision sixty days to visits over ten Nacionales, “banking” services to facilitate some Helicopteros see also payments, (finding dividend no intercompany 104 S.Ct. 1868 U.S. at repayments payments despite loan for services defendant general management products group compa corporation’s sending sold between excess lia to Texas consultation Preussag purchased personnel nies. also seven-year Cole training period)); subsidiar over bility insurance cover those man, (citing Dalton fifty percent at 808 in which it held at least 83 S.W.3d ies Inc., Marine, R & W 897 F.2d 1362 tion respect with to Piacentino’s interac- (5th Cir.1990) n. 3 (“purchases tions, and trips findings against and the are not so thereto, if they regu- related even oeeur overwhelming weight of the evidence not, larly, standing alone, a sufficient manifestly unjust as to be and clearly jurisdiction.”)). basis for the assertion of Eagle, wrong. Golden I conclude the trial properly court could analysis, complete To necessary find that the corpo travel various look to Rockwood’s other business con- rate executives of Rockwood to visit South tracts with other three Texas entities. Clay was, ern for the most normal part, First, alleged there is an December 2001 and routine and therefore insufficient to Alliance, Royal contract with & Sun general trigger jurisdiction. Piacentino’s Addison, Villagomez alleges Texas. Rock- were carefully contacts also reviewed requested wood inspection per- boiler the trial court. His contacts were not conjunction Clay formed systematic continuous, but rather 'securing insurance. The documents BMC, were sporadic. See 83 S.W.3d at Royal letters evidence include from & (requiring that the defendant conduct Clay Sun Alliance to Southern about the forum, substantial within activities “a inspection, copy with a to Piacentino. demanding more minimum analy contacts They copy do not include aof contract. jurisdiction.”); specific sis than for see also Nothing agreement indicates Nacionales, 466 U.S. at Helicopteros with Rockwood. S.Ct. 1868. communications e gathering mail related to of safety Next in issue alleged is an 2002 contract statistics, and providing not to direction or between Rockwood and Hartford Steam control to Southern on how to con Inspection Boiler Company, and Insurance safety management. duct its Evidence office, out of Houston to working per- its supported that bulk of Piacentino’s inspection Clay. form an at Southern part visits and were routine of normal in document evidence reflects that parent interaction a and between subsid inspections internal were conducted on Further, iary. they comparable were to at Clay three boilers located tube type provided and of the to member of insured, by Hartford on of its Rock- behalf corporate family. See Preus identifies the Hartford wood. Letterhead sag, 16 S.W.3d at 123. also Evidence re Inspection Steam Boiler and Insurance Co. in flected that his conduct connection with Atlanta, Copies at of Georgia address. (Vil- subsequent and to the 2001 and 2003 Piacentino, report were issued to Hart- lagomez) incidents, and participation his in Boiler, ford Steam “Southern reports, investigations MSHA was Products, Subsidiary.” a parent significant that as interested in Finally, a there is contract between subsidiary, in occurring

events at its which Administrative, Rockwood HealthFirst a a parent would have natural interest as 1, 2003, January into entered effective sole stockholder. Id. existed to Evidence agreement, 2005. through Under this that support Rockwood’s contention Pia- independent HealthFirst as third serves eentino neither directed not controlled the party administrator benefits investigations, simply participated but family companies. entire of Rockwood communicating acted a liaison in results admittedly corpora- I HealthFirst a Texas investigations. of those would conclude support is not weak tion. The contract with states evidence too to Rockwood jurisdic- it be findings general interpreted court’s as to “shall and construed

759 The Houston court being of sued in Texas. of the state law accordance a by determining agreeing that except superseded disagreed, to the extent Texas testified without provision, law.” Donna Abrunzo federal Texas choice-of-law a negotiated by agreement was more, itself party not mean a availed did Rock- signed by consultant and party third or volun from Texas courts any protection Jersey. wood New personal jurisdiction tarily submitted courts, express an under absent circumstances, single a contract In some 219; standing to that effect. Id. at see may stan purposeful-availment meet the Co., Co. v. Barnett Constr. also 3-D Elec. dard, single it a but not when involves (Tex. 135, App.-Dallas taking place outside the forum 706 S.W.2d contact Michiana, n.r.e.) a ‘choice (“although writ ref 'd state. See S.W.3d A es long-term agreement significant franchise provision law1 in a contract is because, though tablish minimum contacts jurisdiction determining whether should contract, from single stems a it involves state, provision a had in the forum such a time. many long period contacts over voluntary as a sub cannot be construed Salinas, (citing Id. CMMC v. 929 S.W.2d to the personal mission a defendant (Tex.1996)). Similarly, a life-in in the jurisdiction of the courts the state single from policy may surance stem a any express understanding absence of contract, necessarily but involves series effect.”) (citations omitted). There parties until death contacts does no in the Reid record of was evidence Michiana, (citing part. at 787 submit understanding that Alenia express Co., Ins. McGee Int'l U.S. Life of Texas courts ted (1957)). 199, 2 78 S.Ct. L.Ed.2d 223 Here, executing the contract. there premised similarly any express Jurisdiction is on the notion un no evidence Coleman, at 808. agreed consent. 83 S.W.3d sub derstanding protections “[B]y invoking the benefits I jurisdiction in Texas. personal mit to laws, forum’s nonresident defendant subject that Rockwood is cannot conclude sued Rock- being consents there.” Id. courts jurisdiction of the Texas general urges wood there was no consent because HealthFirst, or contract with based on this HealthFirst not ob- contract with does contracts issue. on other ligate perform services Villagomez Texas. counters that exe- Play Fair D. Traditional Notions of cuting subject a contract to Texas law and Substantial Justice subject consent to be to Texas constitutes However,

jurisdiction. provides case law a nonresident defen- party opposing A otherwise. appearance must show that special dant’s jurisdiction personam the exercise of in Spazio,

I v. S.p.A. have reviewed Alenia play fair and substantial comports with Reid, 201 (Tex.App.-Houston 130 S.W.3d Schlobohm, at 357-58 justice. 784 S.W.2d denied), in pet. which [14th Dist.] Asahi, at (citing 480 U.S. S.Ct. an Ital court discussed contract between 476-77, 1026; at King, 471 U.S. Burger company corporation ian Texas 2174); Shoe, at Int’l 326 U.S. 105 S.Ct. pro choice-of-law which contained Texas However, I find because S.Ct. by agree Reid had asserted vision. jurisdic- specific general nor that neither ing provision, to this Texas choice-of-law attaches, analy- this perform I do not and tion itself of the benefits Alenia availed to sis. protections of Texas law and consented

VII. Conclusion

In considering special appearance, I

have not reached the merits of the allega-

tions or determine a wrong whether Rather,

been committed Texas. I have solely

looked to determine whether Rock-

wood initiated contacts with

which it purposefully availed itself of the

privilege of conducting Texas, activities in

thereby invoking the benefits and protec-

tions of Texas laws such that it could

reasonably anticipate being called into a

Texas court.

The evidence before the trial court sup

ported its conclusions that specific neither

nor general attach to Rock-

wood. court’s conclusions of law

are not erroneous as a matter of law. 547;

Stable Energy, 999 Hof land, 907 S.W.2d at 599. Accordingly, I

would overrule Villagomez’s ap issues on

peal and affirm the trial court’s order

granting special appearance.

WARRANTECH CORPORATION and

Warrantech Consumer Product

Services, Inc., Appellants,

STEADFAST INSURANCE

COMPANY, Appellee.

No. 2-05-351-CV. Texas, of Appeals

Court

Fort Worth.

Nov. notes mil- $39 provides records and a “guideline” lion. These notes were executed in mandate, for accomplishing this stat- October 2001 the board of di- ing that subsidiary “each is responsi- rectors of Clay Southern in their ble for establishing and maintaining capacity as board members. Al- its own Management Records pro- though signed the notes were with gram.” states, policy also “Rec- provisos stating they could not generated by ords or for Rockwood assigned to other holders and Specialties Inc. its subsidiar- and/or that New York law govern would property ies are the of Rockwood all disputes, Rockwood later Specialties Inc. its subsidiar- and/or “cancelled” and assigned the notes ies rather than the or the individuals corporation. them to another generate areas that or maintain it.” Clay Southern still owes the full Two Clay’s members of Southern amount of the notes. management testified to Rockwood’s 3. Rockwood acts like a “bank” to its Records Management Policy. Texas, providing subsidiaries “arms-length” commercial financial Sumner testified that he was familiar totaling services untold amounts. Management the Records Policy Clay and that Southern has not “fol- 4. directly Rockwood interacts with the it, lowed it” he because sees not “as a directors, officers, personnel mandate,” guidance.” but “as When Clay Southern other its asked how did not fol- through subsidiaries incentive bo- testified, policy, low the Sumner “We plan provision group nus haven’t particularly rigorous been health insurance. going back in departments each of the contract ongoing Rockwood has an auditing ourselves to make sure First, separate corpo- with Health throwing things that we are ... out ration doing business Texas. regular on a questioned basis.” When

Case Details

Case Name: Villagomez v. Rockwood Specialties, Inc.

Court Name: Court of Appeals of Texas

Date Published: Nov 30, 2006

Citation: 210 S.W.3d 720

Docket Number: 13-05-389-CV

Court Abbreviation: Tex. App.