JUTALIA RECYCLING, INC. AND GUY CARDINALE, Appellants
CNA METALS LIMITED, Appellee
Appeal from the 333rd District Court Harris County, Texas
Trial Court Cause No. 2016-59079
consists of Justices Boyce, Jamison, and Brown.
Hill Jamison, Justice.
issues in this interlocutory appeal involving breach of
contract and fraud claims, appellants Jutalia Recycling, Inc.
and Guy Cardinale challenge the trial court's denial of
their special appearance, contending that they did not
consent to jurisdiction in Texas and they lack sufficient
minimum contacts such that they would reasonably anticipate
being haled into a Texas court. Concluding that the trial court
lacks jurisdiction, we reverse the order denying
appellants' special appearance and render judgment
dismissing appellee CNA Metals Limited's claims against
a company that imports and exports scrap metal, among other
things. A trader for CNA, David Levin, was contacted by Robin
Chen, a representative of a company called Foshan Trading,
Inc., about the sale of scrap materials. CNA sent Foshan
Trading a "Purchase Contract" for a shipment of
scrap materials. The Purchase Contract includes the following
language in capital letters, "Please note this agreement
includes terms & conditions on a separate page attached.
All disputes are subject to Fort Bend County State of Texas
Jurisdiction." The "terms and conditions"
state that the seller "acknowledges, consents, and
irrevocably submits to Texas jurisdiction for any
Controversy" and "[t]he parties agree that all
Controversies shall be brought only in the State courts of
Fort Bend County, Texas . . . ."
"Agreement of Sale" was then sent to CNA from
"Fushun Trading/Jutalia Recycling Inc." on the same
day. Levin signed the Agreement of Sale with the notation
under his signature "Accepted By Buyer." There is
another signature that is illegible with the notation under
it "Accepted By Seller." The agreement includes the
In case of dispute, the parties herein irrevocable [sic]
consent to the jurisdiction of the state and federal courts
having jurisdiction over Richmond County, New York, USA.
Venue shall be Richmond County, New York, USA. Unless
specified otherwise, terms as per United Commercial Code
between Buyer and Seller as merchants exclusively. . . . The
Sales Order, together with these terms and conditions,
constitutes the entire and exclusive agreement between the
Buyer and Seller identified in the Sales Order. Seller's
acceptance of the Sales Order is conditioned upon Buyer's
agreement that any terms different from or in addition to
acknowledgement, release, acceptance or other written
correspondence, irrespective of the timing, shall not form a
part of the Sales Order even if Seller purports to condition
its acceptance of the Sales Order on Buyer's agreement to
such different or additional terms.
a month after its first order, CNA sent two more Purchase
Contracts to "Foshan Trading/Jultalia [sic] Recycling,
" which include the same language quoted above as in the
initial Purchase Contract. Another Agreement of Sale from
Jutalia was sent to CNA, and another document entitled
"Sales Order" was also sent from Jutalia to CNA.
This Agreement of Sale and the Sales Order both include the
same language quoted above as in the initial Agreement of
Sale and were both signed by Levin as Buyer and a
representative of Jutalia as Seller.
meantime, the first order of scrap materials was shipped from
New York to China. Team Enterprise, a transportation company,
supervised the loading process. When the shipment arrived,
CNA had it inspected and alleges that it contained worthless
materials. CNA filed this lawsuit in Harris County, Texas,
bringing a claim against Jutalia and Foshan for breach of
contract and claims against Jutalia, Foshan, Cardinale, and
Team Enterprise for fraud and conspiracy to commit
fraud. Jutalia and Cardinale filed the special
appearance forming the basis of this appeal.
their special appearance, Jutalia and Cardinale asserted that
the trial court lacks jurisdiction because they are not
amenable to process in Texas, they do not have contacts with
Texas sufficient to warrant the exercise of specific or
general jurisdiction, and the trial court's asserting
jurisdiction would offend traditional notions of fair play
and substantial justice. The trial court denied the special
appearance after a hearing, and appellants filed this
appeal, appellants contend that the trial court erred in
denying their special appearance because they did not consent
to jurisdiction in Texas and lack sufficient minimum contacts
with Texas giving rise to jurisdiction over appellants.
a court has personal jurisdiction over a defendant is a
question of law we review de novo. Moncrief Oil Int'l
Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013).
When, as here, the trial court does not issue findings of
fact or conclusions of law, we imply all facts necessary to
support the trial court's ruling that are supported by
the evidence. Id.
jurisdiction over nonresident defendants satisfies the
constitutional requirements of due process when the defendant
has purposefully established minimum contacts with the forum
state and the exercise of jurisdiction is consistent with
traditional notions of fair play and substantial justice.
Id.; Retamco Operating, Inc. v. Republic
Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). A
defendant establishes minimum contacts with a forum if the
defendant has purposely availed itself of the privilege of
conducting activities within the forum state, thus invoking
the benefits and protections of its laws. Moncrief,
414 S.W.3d at 150; Retamco, 278 S.W.3d at 338. A
defendant's minimum contacts may give rise to either
specific jurisdiction or general jurisdiction.
Moncrief, 414 S.W.3d at 150; Retamco, 278
S.W.3d at 338. Here, CNA's asserted basis for
jurisdiction is specific jurisdiction.
specific jurisdiction is asserted, our analysis focuses on
the relationship among the defendant, Texas, and the
litigation to determine whether the plaintiff's claim
arises from Texas contacts. Moncrief, 414 S.W.3d at
150. We analyze minimum contacts for specific jurisdiction on
a claim-by-claim basis, unless all claims arise from the same
forum contacts. Id. at 150-51. Here, CNA's
claims for breach of contract, fraud, and conspiracy to
commit fraud are all based on the same purported contacts
Consent to Jurisdiction Not Binding on Appellants
CNA argued that Jutalia consented to Texas jurisdiction in
the Purchase Contracts. In their first issue, appellants argue
that Jutalia did not consent to Texas jurisdiction because
under the Sales Orders, Jutalia's acceptance of CNA's
offer to purchase scrap materials was expressly conditioned
on the parties' consent to New York jurisdiction for
disputes. CNA argues that Jutalia consented to personal
jurisdiction in Texas by "accept[ing]" CNA's