Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
TV AZTECA, S.A.B. DE C.V., PATRICIA CHAPOY, AND PUBLIXMAN, S.A. DE C.V., Appellants,
GLORIA DE LOS ANGELES TREVINO RUIZ, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, ANGEL GABRIEL DE JESUS TREVINO, AND ARMANDO ISMAEL GOMEZ MARTINEZ, Appellees.
On appeal from the 139th District Court of Hidalgo County, Texas.
Before Chief Justice Valdez and Justices Benavides and Longoria
ROGELIOVALDEZ Chief Justice
Appellants, TV Azteca, S.A.B. de C.V., Patricia Chapoy, and Publimax, S.A. de C.V. (the "Media Defendants"), complain in this accelerated interlocutory appeal that the trial court erred in denying their special appearance in a suit brought by appellees, Gloria de los Angeles Trevino Ruiz (aka "Gloria Trevi"), individually and on behalf of her minor child, Gabriel de Jesus Trevino, and Armando Ismael Gomez Martinez (the "Trevi Parties"). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (West 2008); Tex.R.App.P. 28.1. Appellants contend by five issues, that the trial court erred by: (1) denying their special appearance; (2) finding that it had specific jurisdiction over the Media Defendants; (3) finding that it had general jurisdiction over the Media Defendants; (4) finding that exercising personal jurisdiction over the Media Defendants would not offend traditional notions of fair play and substantial justice; and (5) overruling the appellants' objections to the affidavit testimony of Francisco Pena, the affidavit and deposition testimony of Patti Sunday, the deposition testimony of Othon Frias Calderon, and the deposition testimony of Vicente Diaz. We affirm.
I. Standard of Review
Whether the trial court has personal jurisdiction over a defendant is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The plaintiff bears the initial burden of pleading "sufficient allegations to bring a nonresident defendant within the provisions of the [Texas] long-arm statute." Id. at 793. However, when a defendant files a special appearance, he assumes the burden of negating all bases of personal jurisdiction asserted by the plaintiff. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software, 83 S.W.3d at 793; El Puerto de Liverpool, S.A. de C.V. v. Servi Mundo Llantero, S.A. de C.V., 82 S.W.3d 622, 628 (Tex. App.—Corpus Christi 2002, pet. dism'd w.o.j.). The trial court determines the special appearance by referring to the pleadings, any stipulations made by and between the parties, any affidavits and attachments filed by the parties, discovery, and any oral testimony. Tex.R.Civ.P. 120a(3).
When the trial court issues findings of fact and conclusions of law, we may review the findings of fact for legal and factual sufficiency. BMC Software, 83 S.W.3d at 794. We review a trial court's legal conclusions de novo. Moki Mac, 221 S.W.3d at 574 (citing BMC Software, 83 S.W.3d at 794). The appellant may not challenge the trial court's conclusions of law as factually insufficient; however, the appellate court may "review the trial court's legal conclusions drawn from the facts to determine their correctness." Id.
If the trial court does not issue findings of fact and conclusions of law, we must imply all facts necessary to support the judgment if those facts are supported by the evidence. BMC Software, 83 S.W.3d at 795 (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987); In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984)). "When ... the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in favor of its ruling." Glattly v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex. App.— Houston [1st Dist.] 2005, no pet.) (citing Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex. 2002)). However, "we review de novo if the underlying facts are undisputed or otherwise established." Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.—Houston [1st Dist.] 2000, pet. dism'd w.o.j.). Any implied findings are not conclusive and may be challenged for legal and factual sufficiency if the appellate record contains the reporter's and clerk's records. Id. "For legal sufficiency points, if there is more than a scintilla of evidence to support the finding, the no evidence challenge fails." Id.
II. Personal Jurisdiction
Texas courts have personal jurisdiction over a nonresident defendant only if it is authorized by the Texas long-arm statute, see Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (West 2008), which allows Texas courts to exercise personal jurisdiction over nonresident defendants who are doing business in Texas. Id.; BMC Software, 83 S.W.3d at 795. The Texas long-arm statute sets out several activities that constitute "doing business" in Texas; however, the list is not exclusive, and Texas's long arm statute's "broad language extends Texas courts' personal jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" BMC Software, 83 S.W.3d at 795 (quoting U-Anchor Adver, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)). Therefore, "the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations." CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996).
Under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, a Texas court has personal jurisdiction over a nonresident defendant when (1) the nonresident defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); BMC Software, 83 S.W.3d at 795; see U.S. Const, amend. XIV, § 1. "The exercise of personal jurisdiction is proper when the contacts proximately result from actions of the nonresident defendant which create a substantial connection with the forum state." Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).
Minimum contacts may be found when the nonresident defendant purposefully avails himself of the privileges and benefits inherent in conducting business in the forum state. Moki Mac, 221 S.W.3d at 575 ("[A] defendant must seek some benefit, advantage or profit by 'availing' itself of the jurisdiction.") (quoting Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005)); Michiana, 168 S.W.3d at 784 ("For half a century, the touchstone of jurisdictional due process has been 'purposeful availment.'"); see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985). Minimum contacts with the forum state may establish either specific or general jurisdiction over the nonresident defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). There is specific jurisdiction over the nonresident defendant if the defendant purposefully directed his activities at residents of Texas and the litigation arose from or related to those contacts. See Burger King, 471 U.S. at 472; Helicopteros, 466 U.S. at 414; Guardian Royal, 815 S.W.2d at 227. In other words, there must be a substantial connection between the nonresident defendant's contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d at 585. The forum state has general jurisdiction over the nonresident defendant if the defendant's contacts in the forum state are continuous and systematic. BMC Software, 83 S.W.3d at 796. General jurisdiction allows the forum state to exercise personal jurisdiction over the defendant "even if the cause of action did not arise from or relate to activities conducted within the forum state." Id.
III. Personal Jurisdiction in Defamation Suits
In determining whether the nonresident defendant that is sued for defamation has had minimum contacts with the forum state, the United States Supreme Court has provided a framework for courts to follow. See Calder v. Jones, 465 U.S. 783 (1983); Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1983). In Keeton, the United States Supreme Court overturned the lower court's dismissal of the plaintiff's libel cause of action against the publisher of a magazine. Keeton, 465 U.S at 772. The plaintiff, who was not a resident of New Hampshire, sought relief in New Hampshire because the statute of limitations had run in her home state. Id. at 773. The Supreme Court held that the defendant's "regular circulation of magazines in [New Hampshire] is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine." Id. at 773-74. The Court citing the lower court's findings stated that "[t]he general course of conduct in circulating magazines throughout the states was purposefully directed at New Hampshire, and inevitably affected persons in the state." Id. at 774. The Court explained that
[s]uch regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous. It is, therefore, unquestionable that New Hampshire's jurisdiction over a complaint based on those contacts would ordinarily satisfy the requirement of the Due Process Clause that a State's assertion of personal jurisdiction over a nonresident defendant be predicated on 'minimum contacts' between the defendant and the State.
The Supreme Court explained that the plaintiff's lack of contacts with the forum state did not defeat jurisdiction because we analyze the relationship among the defendant, the forum state, and the litigation. Id. at 775-76. The Court found the plaintiff's claims that she suffered damages in multiple states relevant to the question of whether it was "fair" to compel the defendant to defend a multi-state suit in New Hampshire. Id. at 776. However, the Supreme Court held her multi-state claims did not defeat New Hampshire's jurisdiction over the defendant because New Hampshire had a legitimate interest in holding the defendant answerable on a claim related to the defendant's activities of circulating its magazine in that state. Id. The Court explained that New Hampshire has a significant interest in redressing injuries that actually occur within its borders. Quoting Leeper v. Leeper, 114 N.H. 294, 298 (1974), the Supreme Court stated:
A state has an especial interest in exercising judicial jurisdiction over those who commit torts within its territory. This is because torts involve wrongful conduct which a state seeks to deter, and against which it attempts to afford protection, by providing that a tortfeasor shall be liable for damages which are the proximate result of his tort.
Keeton, 465 U.S. at 776 (internal citations omitted). The Court explained that this interest "extends to libel actions brought by nonresidents" and that New Hampshire has an interest in discouraging the deception of its citizens in a libel action. Id. The Supreme Court said, "False statements of fact harm both the subject of the falsehood and the readers of the statement" and "there is no constitutional value in false statements of fact." Id. (emphasis in original). The Court determined that New Hampshire had an interest in remedying an injury that in-state libel caused within its borders to a nonresident and that "the tort of libel is generally held to occur wherever the offending material is circulated." Id. at 776-77.
Noting that the defendant had "chosen to enter the New Hampshire market[, ]" the Court concluded that the defendant could be "charged with knowledge of its laws." Id. at 779. The defendant's activities could not be regarded as continuous and systematic and were not so substantial as to support jurisdiction over a cause of action unrelated to its activities in New Hampshire. Id. However, the defendant was "carrying on a 'part of its general business' in New Hampshire, and that [was] sufficient to support jurisdiction when the cause of action [arose] out of the very activity being conducted, in part, in New Hampshire." Id. at 779-80.
The Supreme Court recognized that in some situations, the plaintiff's residence may be relevant to a minimum contacts analysis because the relationship between the defendant and the plaintiff's residence may "enhance" the defendant's contacts with the forum state, especially if the plaintiff's residence is the focus of the defendant's activities related to the suit. Id. at 780. However, an appellate court is not required to take the plaintiff's residence into consideration when determining whether the defendant has had minimum contacts with the forum state. Id. This is because the plaintiff's lack of residence "will not defeat jurisdiction established on the basis of [the] defendant's contacts." Id. The Court concluded that when a defendant has "continuously" and deliberately "exploited" a forum state's market, "it must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine." Id. at 781. The Court stated, "There is no unfairness in calling [a defendant] to answer for the contents of [its] publication wherever a substantial number of copies are regularly sold and distributed." Id.
In Calder v. Jones, the Supreme Court found that California had personal jurisdiction over an editor and writer for the National Enquirer who were based in Florida. 465 U.S. at 790. At the time, Shirley Jones was an entertainer living and working in California, and the National Enquirer published allegedly defamatory statements about her. Id. at 788-89. The Supreme Court found that California was the focal point of the published story and the harm was suffered in California. Id. at 789. Thus, the Court stated that California had jurisdiction based on the "effects" of the defendants' Florida conduct in California. Id. The Supreme Court explained that (1) the story concerned the California activities of a California resident, (2) the plaintiffs career was centered in California, (3) the article was drawn from California sources, and (4) the brunt of the harm was felt in California. Id. at 788-89.
The Calder defendants argued that they were similar to welders who had built a boiler in Florida and who had no control over where the manufacturer sold the boilers. Id. at 789. The Supreme Court rejected that argument because according to the Court, the defendants were not charged merely with untargeted negligence. Id. Instead, the defendants had been charged with intentional and tortious actions expressly aimed at California. Id. The Supreme Court stated that the defendants knew that the brunt of the injury would be felt by Jones in the state in which she lives and works and in which the National Enquirer had its largest circulation. Id. Under the circumstances, the Supreme Court found that the defendants must have "reasonably anticipate^] being haled into [a] court [where the plaintiff lived and worked and the publication was disseminated]" to answer for the truth of the statements made in their article. Id. at 789-90. The Supreme Court reasoned that in the case of an intentional tort, such as defamation, an individual injured in California should not be required to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California. Id. at 790.
IV. The Evidence
The Trevi Parties sued appellants for defamation, libel per se, slander, defamation per se, business disparagement, civil conspiracy, and tortious interference with existing and prospective contracts and business relationships. The Trevi Parties claimed that appellants allegedly broadcast defamatory statements about them on their television programs. In their joint special appearance, TV Azteca, S.A.B. de C.V. ("Azteca") and Chapoy asserted that they are not residents of Texas, that they have not had minimum contacts with Texas allowing jurisdiction in Texas, the trial court lacked specific and general jurisdiction over them, and jurisdiction over them would offend traditional notions of fair play and substantial justice. Azteca stated that it is not registered to do business in Texas and that it is an entity that has not been formed under the laws of Texas. Azteca and Chapoy challenged all of the bases for jurisdiction listed in the Texas long-arm statute.
Chapoy stated that she is a citizen and resident of Mexico employed by a Mexican corporation. Chapoy claimed that her "intended viewership includes primarily Mexican viewers, not viewers in Texas." Chapoy asserted that the evidence presented showed that she has not (1) engaged in business in Texas; (2) agreed to be subject to jurisdiction in Texas; (3) appointed an agent for service of process in Texas; (4) ever maintained a place of business in Texas; (5) owned property in Texas; (6) owed or paid any taxes to the State of Texas or any of its political subdivisions; (7) filed a lawsuit in Texas; or (8) been a party to a lawsuit other than the current action.
In its special appearance, Publimax stated that: (1) it is an entity formed under the laws of Mexico; (2) it was not formed under Texas laws; (3) it was not registered to do business in Texas (4) it did not have employees, agents, or assets, representatives, or offices in Texas; (5) it did not engage in business in Texas; (6) it did not agree to be subjected to jurisdiction in Texas; (7) it had not appointed an agent for service of process in Texas; (8) it had not maintained a place of business in Texas, owned property in Texas, or owed or paid any taxes to Texas or any of its political subdivisions; (9) it had not "aim[ed] or targeted] any alleged defamatory broadcast to the State of Texas"; and (10) it had not "create[d], [written], or produce[d] any allegedly defamatory broadcast." Publimax acknowledged that it operated "over-the-air television channels 7 and 13 in Monterrey, Mexico" but alleged that "pursuant to an agreement with the owner of those stations, the programming broadcast over those channels is directed at viewers in the northeast zone of Mexico not Texas." Publimax stated that "[cjhannels 7 and 13 in Monterrey are licensed for broadcast by the Mexican government, not the U.S. Federal Communications Commission." Publimax recognized that households in southern Texas are capable of receiving transmission of broadcasts from channels seven and thirteen, but it claimed that it had not "engage[d] in purposeful attempts to do business in south Texas through programming targeted or directed to south Texas." Publimax also stated that it did not have sufficient minimum contacts with Texas conferring jurisdiction to a Texas court.
Regarding general jurisdiction, appellants stated that the Trevi Parties "acknowledge^] that [they] do 'not maintain a registered agent for service of process in Texas.'" Appellants claimed that the Trevi Parties' accusation that they are "doing business in the State of Texas and [were] at all times material hereto doing business in Texas" was conclusory and did not constitute evidence of continuous and systematic contacts sufficient to vest the trial court with jurisdiction over them. Appellants alleged that the Trevi Parties failed to state which defendant actually broadcast the television programs in Texas, which gave rise to the Trevi Parties' causes of action. Finally, appellants claimed that even if Azteca broadcast the television programs at issue, that fact alone is not sufficient to confer general jurisdiction in Texas.
Regarding specific jurisdiction, appellants stated that the Trevi Parties' allegation that they had directed their activities to Texas residents was vague and the type of evidence rejected by the Texas Supreme Court. Appellants argued that even if Azteca broadcast its programs to Texas, those broadcasts were incidental and not directed to the state of Texas. Finally, appellants asserted that vesting a Texas court with jurisdiction over them would offend traditional notions of fair play and substantial justice.
Azteca and Chapoy attached Othon Frias Calderon's and Chapoy's affidavits to their joint special appearance wherein Calderon stated that he is employed as an "attorney-in-fact" for Azteca and is "familiar with and [has] knowledge of [Azteca's] business." Calderon stated:
I have knowledge that the intention of [Azteca] in supervision, producing and conducting the television programming at issue in this lawsuit was to accurately inform in a truthful, objective and professional manner about the matters reported therein. The programs contain reporting and commentary on the legal proceedings related to Gloria Trevi and Sergio Andrade, among others, which occurred mainly in Mexico, Europe, and Brazil, and have no relationship to the State of Texas. The producers, reporters and investigators involved in the production of programs did not include or discuss any act or event taking place in the State of Texas and did not rely on any sources in the State of Texas. All of the work on the subject broadcasts was performed and conducted in Mexico.
In her affidavit, Chapoy stated that she is a resident of Mexico and has never been a resident of Texas. Chapoy said that she serves as director of entertainment for Azteca. According to Chapoy, she intends that viewers of the programs she produces consist of Mexican citizens, and she does not intend for residents of Texas to view her reports. Chapoy stated, "The report that I understand to be the subject of Plaintiffs Original Complaint [was] investigated, written and prepared by me and colleagues working in Mexico. All of my work on the subject broadcasts were performed and conducted in Mexico." Chapoy said that she intended to "accurately" inform her viewers about the matters reported in the broadcasts that "focused on cases and legal proceedings involving Gloria Trevi which took place in Mexico, Europe and Brazil and not in the State of Texas." According to Chapoy, the reports "did not discuss any Texas events involving Ms. Trevi or others and did not rely on any sources in the State of Texas."
Publimax offered the affidavit of Vicente Diaz Charles ("Diaz"). Diaz works as the controller at Publimax. Diaz denied that Publimax has engaged in any acts listed in the Texas long-arm statute. Diaz stated:
The television programming that is the subject of the Petition was not created, written or produced by Publimax. Publimax did not have any responsibility for or role in preparing the content of that programming and did not exercise any editorial control or decision making regarding that content. Publimax did not aim or target any alleged defamatory broadcast to the State of Texas. The subject programming originated from a national Mexican television network which was responsible for creating the content of the programming and which exercised editorial control over the content of the programming. Publimax operates over-the-air television Channels 7 and 13 in Monterrey, Mexico pursuant to an agreement with the owner of those stations; however, the programming broadcast over those channels is directed at viewers in the northeast zone of Mexico, not Texas. Channels 7 and 13 in Monterrey are licensed for broadcast by the Mexican government, not the U.S. Federal Communications Commission.
Although some households located in south Texas may have the capability of receiving the over-the-air television signal of channels 7 and 13 in Monterrey operated by Publimax as a result of signal "spill-over", that is the result of the over-the-air signal following the law of physics, not man-made laws as to borders and jurisdiction. Publimax has not and does not engage in purposeful attempts to do business in south Texas through programming targeted or directed to south Texas.
Appellants attached excerpts from depositions of Trevino, Calderon, Chapoy, Diaz, and Armando Ismael Gomez to their designation of deposition testimony, additional affidavits and expert witnesses in support of special appearances. To their response to appellants' special appearances, the Trevi Parties attached excerpts from: (1) Diaz's depositions taken on November 15, 2011 and March 8 and 9, 2012 with deposition exhibits; (2) Calderon's deposition with exhibits; (3) Chapoy's deposition with exhibits; (3) Trevi's deposition; (4) Laura Cantu's deposition; and (5) Patti S. Sunday's deposition. The Trevi Parties also offered a variety of documents, including among other things: (1) Francisco J. Pena Valdes's affidavit; (2) Patti S. Sunday's affidavit; (3) Trevi's affidavit; (4) portions of TV Azteca's 2005, 2006, 2007, 2008, and 2009 annual reports; (5) documents in a lawsuit filed by a Texas resident against Publimax and its employee; (6) a "Linkendine" profile of TV Azteca's manager of editing, post production, and signal distribution, Omar Garza Galvan, and an invoice; (7) a printout of pages from TV Azteca Noreste's website; (8) Rebecca Vela's affidavit; (9) Raymond L. Thomas's affidavit; and (10) Vanessa Villegas's affidavit.
Both the Trevi Parties and appellants provided excerpts of Trevi's deposition.During her deposition, Trevi testified that she lives in McAllen, Texas and is in the United States under a work visa. Trevi testified that she viewed one of the broadcasts containing the allegedly defamatory statements at her mother-in-law's home in McAllen. Trevi claimed she sued appellants in Texas because the defamatory statements harmed her and her family economically in Texas. Trevi stated that she lost business in Texas due to the broadcasts.
Trevi stated that she did not know whether appellants "did anything in Texas to prepare" the allegedly defamatory broadcasts and did not know if the preparation of the broadcasts occurred in Mexico. Trevi agreed with appellants' attorney that several of the alleged defamatory remarks concerned incidents that occurred in Mexico and had not occurred in Texas. She also agreed that several of the remarks concerned incidents that occurred in Brazil. Trevi stated that she did not know where the programs "aired." Trevi could not say whether Chapoy made the allegedly defamatory statements in Mexico. Trevi explained:
Well, look, I saw it here [in Texas]. I saw it here on TV Azteca, and I do not know where this woman records her show or where the people who are being interviewed are. But they pay a lot of money to people to give interviews to defame me and they have even said that in their own show.
I don't know where she is recording her show or where these people who are being interviewed are or where the reporters are when these interviews are taking place. I know that I saw it here in McAllen. I actually don't watch TV Azteca, but people who saw it called me up and told me to ...