Court of Appeals of Texas, Ninth District, Beaumont
WILLIAM MORRIS, AS ADMINISTRATOR OF THE ESTATE OF LARRY MORRIS, Appellant
H G SPEC INC., ET AL, Appellees
Submitted on February 24, 2016
Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. E-190, 617
McKeithen, C.J., Horton and Johnson, JJ.
interlocutory appeal, Plaintiff William Morris, as
administrator of the Estate of Larry Morris (Plaintiff or
Appellant), appeals the trial court's orders granting the
special appearances of defendants Reliance Worldwide Pty Ltd,
GSA Group Pty Ltd, GSA Industries (Aust) Pty Ltd (the
Reliance Defendants), and H G Spec, Inc. (H G Spec)
(collectively Appellees) and dismissing the claims against
Appellees with prejudice. We affirm.
Plaintiff contends that on or about July 22, 2011, Larry
Morris was a resident at the EduCare Community Living
Corporation - Gulf Coast (EduCare) adult care facility, and
he sustained second-degree and third-degree burns from hot
water during a bath given by his caregiver. According to
Plaintiff, Larry died as a result of his burns. Plaintiff
filed suit against EduCare, Decresha Jenkins (Jenkins), Cash
Acme, the Reliance Defendants, and H G Spec. In
Plaintiff's Fourth Amended Petition (hereinafter
"the petition"), the live petition at the time the
trial court heard the Appellees' special appearances,
Plaintiff asserted that on the alleged date, one of
EduCare's employees, Jenkins, was giving Larry Morris a
bath, Jenkins turned on the water, and she left Larry Morris
unattended. According to the petition, when Jenkins returned,
she discovered that Larry Morris had been burned by scalding
hot water in the bathtub even though a "scald
protector" or Thermostatic Mixing Valve (TMV) allegedly
designed, manufactured, and marketed by the Reliance
Defendants and H G Spec, had been installed. In the petition,
the Plaintiff specifically alleged that EduCare and Jenkins
were negligent in caring for Larry Morris, and Plaintiff also
alleged negligence and strict liability causes of action
against the Reliance Defendants and H G Spec.
Reliance Defendants filed separate special appearances, and H
G Spec filed a special appearance. The trial court held a
hearing on the special appearances. The parties presented
arguments to the trial court and relied on documents on file
and exhibits admitted at the hearing, but offered no live
testimony at the hearing. The trial court granted all four
special appearances in separate orders. Plaintiff timely
first and second issues, Appellant maintains that the trial
court erred in granting H G Spec's special appearance
because personal jurisdiction exists as to H G Spec under the
theories of both general and specific jurisdiction. In his
third issue, Appellant asserts that the trial court erred in
granting the Reliance Defendants' special appearances
because the trial court had specific jurisdiction over all of
the Reliance Defendants.
of Review and Applicable Law
a trial court has personal jurisdiction over a defendant is
ultimately a question of law that we review de novo.
Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414
S.W.3d 142, 150 (Tex. 2013); BMC Software Belgium, N.V.
v. Marchand, 83 S.W.3d 789, 794-95 (Tex. 2002). The
plaintiff has the initial burden of pleading sufficient
allegations to bring a nonresident defendant within the
jurisdiction of a Texas court. Moncrief, 414 S.W.3d
at 149; Kelly v. Gen. Interior Constr., Inc., 301
S.W.3d 653, 658 (Tex. 2010); Retamco Operating, Inc. v.
Republic Drilling, Co., 278 S.W.3d 333, 337 (Tex. 2009).
If the plaintiff meets this initial burden, "the burden
shifts to the defendant to negate all potential bases for
personal jurisdiction the plaintiff pled."
Moncrief, 414 S.W.3d at 149; BMC Software,
83 S.W.3d at 793. The defendant may negate the jurisdictional
allegations on either a factual basis or a legal basis.
Kelly, 301 S.W.3d at 659.
Factually, the defendant can present evidence that it has no
contacts with Texas, effectively disproving the
plaintiff's allegations. The plaintiff can then respond
with its own evidence that affirms its allegations, and it
risks dismissal of its lawsuit if it cannot present the trial
court with evidence establishing personal jurisdiction.
Legally, the defendant can show that even if the
plaintiff's alleged facts are true, the evidence is
legally insufficient to establish jurisdiction; the
defendant's contacts with Texas fall short of purposeful
availment; for specific jurisdiction, that the claims do not
arise from the contacts; or that traditional notions of fair
play and substantial justice are offended by the exercise of
Id. (footnotes omitted). There being no timely filed
findings of fact and conclusions of law, "all facts
necessary to support the judgment and supported by the
evidence are implied." BMC Software, 83 S.W.3d
at 795. If the appellate record includes the
reporter's and clerk's records, these implied
findings are not conclusive and may be challenged for legal
and factual sufficiency in the appellate court. Id.
court has personal jurisdiction over a nonresident defendant
if the exercise of jurisdiction is authorized by statute and
is consistent with federal and state constitutional due
process guarantees. Moncrief, 414 S.W.3d at 149;
Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex.
2010); see also Tex. Civ. Prac. & Rem. Code Ann.
§ 17.042 (West 2015). The Texas long-arm statute
provides that certain acts constitute doing business in
Texas, including, but not limited to, the following:
(1)contracts by mail or otherwise with a Texas resident and
either party is to perform the contract in whole or in part
in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an
intermediary located in this state, for employment inside or
outside this state.
Tex. Civ. Prac. & Rem. Code Ann. § 17.042. Although
an allegation of jurisdiction may satisfy the Texas long-arm
statute, the allegation still may not necessarily satisfy the
United States Constitution. Moncrief, 414 S.W.3d at
149. Accordingly, even if a court determines the facts
satisfy the Texas long-arm statute, a court must also examine
the facts to determine if the exercise of personal
jurisdiction over the defendant comports with due process.
See CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.
personal jurisdiction over a nonresident defendant comports
with due process when (1) the nonresident defendant has
minimum contacts with the forum state, and (2) asserting
jurisdiction comports with traditional notions of fair play
and substantial justice. Retamco, 278 S.W.3d at 338.
The minimum contacts analysis requires "'some act by
which the defendant purposefully avails itself of
the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its
laws.'" Michiana Easy Livin' Country, Inc.
v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (quoting
Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The
focus is on the defendant's activities and expectations.
Am. Type Culture Collection, Inc. v. Coleman, 83
S.W.3d 801, 806 (Tex. 2002). A defendant's contacts may
give rise to either general jurisdiction or specific
jurisdiction. See Moncrief, 414 S.W.3d at 150;
Zinc Nacional, S.A. v. Bouche Trucking, Inc., 308
S.W.3d 395, 397 (Tex. 2010). Continuous and systematic
contacts with Texas may give rise to general jurisdiction,
while specific jurisdiction exists when the cause of action
arises out of or is related to specific purposeful activities
of the defendant in Texas. Moncrief, 414 S.W.3d at
150. "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) (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474-75 (1985)).
court has general jurisdiction over a nonresident defendant
when the defendant's contacts with the forum are
systematic and continuous. Spir Star, 310 S.W.3d at
872. A court has general jurisdiction when the nonresident
defendant's affiliations with the State in which suit is
brought are so constant and pervasive "'as to render
[the nonresident defendant] essentially at home in the forum
State.'" Daimler AG v. Bauman, 134 S.Ct.
746, 751 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011)).
jurisdiction exists when there is evidence that the defendant
purposefully availed itself of the forum's jurisdiction
by contacts or activities in the forum state, and the cause
of action arises from or is related to those contacts or
activities. Retamco, 278 S.W.3d at 338 (citing
Burger King, 471 U.S. at 472); BMC
Software, 83 S.W.3d at 795-96. Under specific
jurisdiction, the focus is on the relationship between the
forum, the defendant, and the litigation. Moncrief,
414 S.W.3d at 150; Retamco, 278 S.W.3d at 338. There
must be a substantial connection between the defendant's
contacts and the operative facts of the litigation.
Moncrief, 414 S.W.3d at 156. The contacts must be
such that the defendant "should reasonably anticipate
being haled into court" in Texas. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
With respect to tort claims, Texas's interest in
protecting its citizens against torts is insufficient to
automatically exercise personal jurisdiction when the
nonresident directs a tort from outside the forum.
Michiana, 168 S.W.3d at 790-91. We must analyze the
jurisdictional contacts on a "claim-by-claim basis"
unless all claims arise from the same forum contacts.
Moncrief, 414 S.W.3d at 150-51.
considering whether the nonresident purposefully availed
itself of the privilege of conducting activities within
Texas, we look at three factors: (1) whether the defendant
had contacts and activity in and with Texas; (2) whether the
contacts relied upon were purposeful rather than random,
fortuitous, or attenuated; and, (3) whether the defendant
sought some benefit, advantage, or profit by availing itself
of the jurisdiction. Id. at 151.
alleged in the petition that H G Spec is "a Canadian
company doing business in the State of Texas." Plaintiff
made no further jurisdictional allegations in the petition as
to H G Spec. Plaintiff alleged that Reliance Worldwide Pty
Ltd and GSA Group Pty Ltd are "Australian compan[ies]
doing business in the State of Texas[, ]" and that GSA
Industries Pty Ltd is "an Australian company[.]"
Plaintiff further alleged that the Reliance Defendants
"along with other affiliated companies . . . are all the
same entity, created with the purpose of falsely portraying
GSA Industries (Australia) Pty. Ltd. . . . as disconnected
from the sale and distribution of Thermostatic Mixing Valves
in the United States in general and Texas specifically."
Plaintiff alleged that the Reliance Defendants "had
continuous, systematic and sufficient minimum contracts[sic]
with Texas, their actions were directed to the State of
Texas, and they purposefully availed themselves of the
benefit, advantage and profit of this jurisdiction"
and that "[f]or purposes of the manufacture and
distribution of products at issue in this case such as
'scald protectors' or thermostatic mixing valves,
these Defendants operated not as separate entities but rather
as a single business enterprise."
also alleged that H G Spec and the Reliance Defendants
"acted in concert and with a specific joint intent to
create corporate fictions and misleading paper agreements,
when in fact the true relationship between [H G Spec and the
Reliance Defendants] ha[s] always been one of manufacturer
and direct distributor of Reliance products into the United
States generally and Texas specifically." According to
the Plaintiff, "during a period of time, the Reliance
Defendants possessed and exercised actual control of HG
Spec's U.S. Sales Manager and network of
Manufacturer's Reps, although during that time it also
engaged in the subterfuge of having those persons remain
related on paper to HG Spec when in fact Reliance was
reimbursing HG Spec for the costs of said operations."
Causes of Action
generally alleged that the defendants were negligent.
Plaintiff alleged that H G Spec and the Reliance Defendants
"are strictly liable to Plaintiff for designing,
manufacturing, and placing into the stream of commerce the
scald preventer, which was unreasonably dangerous for its
reasonably foreseeable uses at the time it left the control
of the Product Defendants because of design, manufacture and
manufacturing defects, which were a producing cause of the
occurrence in question." Plaintiff also alleged that one
or more of the Reliance Defendants, Cash Acme, and H G Spec
were negligent "in the design, manufacture, marketing
and distribution of the scald preventer in question[.]"
Personal Jurisdiction as to H G Spec
to the appellate record, during certain periods of time H G
Spec was a supplier of certain plumbing products manufactured
by others. In Plaintiff's petition, Plaintiff alleged
that H G Spec is "doing business in the State of
Texas." In its verified special appearance, H G Spec
alleged that it is "a corporation organized under the
laws of Canada[, ] . . . is not a publically traded company[,
]" . . . and "has its principal place of business
in Quebec, Canada." According to the special appearance,
"[t]here is no nexus between any act or omission by [H G
Spec] in Texas and the death of Larry Morris[, ] . . . the
allegations against [H G Spec] do not arise out of any
contacts between [H G Spec] and Texas[, ] [H G Spec] has not
consented to the jurisdiction of a Texas court[, ]"
[and] "[m]aintenance of this action against [H G Spec]
in Texas would violate traditional notions of fair play and
substantial justice[.] With respect to whether sufficient
minimum contacts with Texas allow the trial court to exercise
jurisdiction over H G Spec, H G Spec asserted the following
in its special appearance:
. . . [H G Spec] is a corporation organized under the laws of
. . . [H G Spec] has its principal place of business in
. . . [H G Spec] has no offices, facilities or other places
of business in Texas.
. . . [H G Spec] is not required to and has not maintained an
agent for service of process in Texas.
. . . [H G Spec] is not registered to do business in Texas.
. . . [H G Spec] does not maintain a telephone listing in a
Texas telephone directory.
. . . [H G Spec] has not contracted by mail or otherwise with
a Texas resident with performance either in whole or in part
. . . [H G Spec] does not solicit business in Texas.
. . . [H G Spec] does not have any bank accounts in Texas.
. . . [H G Spec] has not paid in taxes in Texas.
. . . [H G Spec] had not made application for or received a
loan of money in Texas.
. . . [H G Spec] does not own any real property in Texas.
. . . [H G Spec] has not owned or maintained a warehouse or
manufacturing plant within Texas.
. . . [H G Spec] has no members of its Board of Directors who
live in Texas.
. . . [H G Spec] does not manufacture products sold in Texas.
. . . [H G Spec] does not distribute products for sale into
. . . [H G Spec] had no employees located in Texas.
. . . [H G Spec] has not committed any tort, in whole or in
part, within ...