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Laproba El Aguila SA de CV v. River City Roofing & Remodeling, Inc.

Court of Appeals of Texas, Fourth District, San Antonio

May 10, 2017

LAPROBA EL AGUILA SA DE CV, Appellant
v.
RIVER CITY ROOFING & REMODELING, INC., Appellee

         From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-21236 Honorable David A. Canales, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Patricia O. Alvarez, Justice.

          MEMORANDUM OPINION

          MARIALYN BARNARD, JUSTICE

         This is an interlocutory appeal from the trial court's order denying appellant Laproba El Aguila SA de CV's ("Aguila") special appearance. On appeal, Aguila argues the trial court erred in denying its special appearance because there is no evidence establishing it has sufficient minimum contacts with Texas to establish specific jurisdiction and the exercise of jurisdiction over it does not comport with traditional notions of fair play and substantial justice. We affirm the trial court's order.

         Background

         Aguila is a Mexican corporation that manufactures clay roof tiles at its factory in Leon, Guanajuato, Mexico. It delivers its roof tile products to its customers "ex works, " a delivery method in which Aguila makes its products available for pickup by its customers at its Mexico factory. Premium Roof Tiles, LLC ("Premium"), a Texas limited liability company located in Brownwood, purchased some roof tiles from Aguila and subsequently sold the roof tiles to ABC Supply Co. ("ABC Supply"), a Texas corporation located in San Antonio. A week later, ABC Supply sold the roof tiles to appellee River City Roofing & Remodeling, Inc. ("River City Roofing"), who installed the roof tiles on a new house. After the house was completed, the homeowners discovered water had penetrated their home, causing damage to the drywall and stucco. The homeowners subsequently sued the builder and some of the builder's subcontractors, including River City Roofing, alleging it improperly installed the roof's components causing mold contamination.

         River City Roofing filed a third party action for indemnity against Aguila, the manufacturer of the roof tiles. See Tex. Civ. Prac. & Rem. Code § 82.002 (West 2017) (outlining manufacturer's duty to indemnify and hold harmless any seller against loss arising out of product liability action). Aguila filed a special appearance alleging the trial court did not have personal jurisdiction over it because it lacked sufficient contacts with Texas to establish specific jurisdiction. Aguila argued it is a nonresident of Texas, and it does not do any business in Texas, nor does it own or lease any property in Texas. Accordingly, there is no evidence it purposefully availed itself of Texas jurisdiction or that River City Roofing's cause of action arose from or related to its Texas contacts. Aguila further argued that even if there is evidence establishing minimum contacts, the exercise of jurisdiction over it would offend the traditional notions of fair play and substantial justice because of the substantial burden placed on it to defend itself in a foreign country.

         In response to Aguila's special appearance, River City Roofing argued Aguila was subject to specific jurisdiction because there is evidence Aguila purposefully availed itself of Texas jurisdiction by placing its products into the stream of commerce with the expectation Texas consumers would purchase them and by advertising its products to the Texas market. River City Roofing also argued there is evidence Aguila's liability arose from its contacts with Premium and ABC Supply. In support of its contentions, River City Roofing attached a number of documents to its response, including: a copy of an Aguila packing slip, showing the roof tiles would be shipped to "ABC San Antonio;" a copy of a webpage from Aguila's website, listing ABC Supply as a distributor of its products; and a letter from Premium's owner, Al Barrera, to the plaintiff homeowners, identifying Premium as a representative for Aguila. In the letter, Barrera states Aguila would be willing to replace the roof tiles and roof tile accessories at no cost so long as the homeowners agreed not to hold Aguila liable for any previous or current damage.

         Thereafter, Aguila filed exhibits to support its special appearance. These exhibits included affidavits from Juan Carlos Gomez Velazquez, the Director General of Aguila, and Barrera. In his affidavit, Velazquez stated Aguila is a Mexican corporation that sells its products "ex works" at its Mexico factory. Under this delivery method, customers pick up their orders from Aguila at Aguila's premises, and upon receipt, the customer takes ownership of the products and assumes any of the risks and responsibility associated with the products. With regard to the copy of the packing slip referenced by River City Roofing, Velazquez stated the packing slip references the "ship to" destination because Premium requested each of its orders to be organized by "ship to" destinations to assist it with its delivery process. Velazquez further explained Aguila prepares its packing slips for Premium with the "ship to" destination information, but does not ship and has not shipped any product to San Antonio or any other Texas destination. Velazquez also added ABC Supply was listed as a distributor on its website merely to indicate ABC Supply sold Aguila products.

         In his affidavit, Barrera stated he is the authorized representative of Premium, and neither he nor Premium are agents of Aguila. Barrera also described Premium as "an authorized distributor of Aguila's tile products, " but added that "Premium is not authorized to act for Aguila." Barrera further explained that when Premium purchases roof tiles from Aguila, it pays the freight to ship the tiles to the United States border and also makes arrangements to ship the product to its customers, such as ABC Supply. With regard to the "ship to" destination references on the packing slips, Barrera confirmed he required Aguila to place the information on the packing slip to assist him in delivering the product to Premium's customers. Barrera added that although Aguila prepares the packing slips, it does not ship any product to Premium's customers. Attached to his affidavit was a copy of Premium's invoice to ABC Supply for the tiles ABC Supply sold to River City Roofing and a copy of Aguila's packing slip for the roof tiles at issue, listing "ABC San Antonio" as the "ship to" destination.

         After a hearing on the Aguila's special appearance, the trial court concluded Aguila was subject to jurisdiction, denying its special appearance. This appeal followed.

         Analysis

         On appeal, Aguila argues the trial court erred in denying its special appearance because there is no evidence it has sufficient minimum contacts with Texas to establish specific jurisdiction. According to Aguila, it lacks sufficient minimum contacts because it did not purposefully avail itself of Texas jurisdiction by placing its products into the stream of commerce and creating a reasonable expectation that its products would be purchased by a Texas consumer. Aguila further contends that it lacks sufficient contacts because neither the plaintiff homeowners' claims nor River City Roofing's claim arises from or relates to its Texas contacts. In the event we determine Aguila's contacts support specific jurisdiction, Aguila alternatively contends the court's exercise of jurisdiction over it does not comport with the traditional notions of fair play and substantial justice.

         Standard ...


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