Court of Appeals of Texas, Ninth District, Beaumont
FORD MOTOR COMPANY, BRIDGESTONE AMERICAS, INC. AND BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, Appellants
NATIVIDAD CARDENAS CEJAS, ET AL, Appellees
Submitted on March 2, 2017
Appeal from the 58th District Court Jefferson County, Texas
Trial Cause No. A-195, 335
McKeithen, C.J., Horton and Johnson, JJ.
Bridgestone Americas, Inc. and Bridgestone Americas Tire
Operations, LLC (collectively Bridgestone) and Ford Motor
Company (Ford) filed an interlocutory appeal from the trial
court's denial of Appellants' special appearances.
See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(7) (West Supp. 2017). We reverse the portion of the
trial court's order denying Appellants' special
appearances and render judgment dismissing Appellees'
claims against Appellants for lack of personal jurisdiction.
2006, Rafael Cardenas, a Mexican resident, was killed in a
car accident in Mexico. At the time of the accident, Rafael
was a passenger in a 1995 Ford Explorer, owned and driven by
Antonio Lopez Espinoza. In 2007, Plaintiffs, Mexican residents
and heirs of Rafael Cardenas, filed a suit in cause number
E178023 in the 172nd District Court of Jefferson County,
Texas, against Ford and Bridgestone alleging a claim against
the defendant Bridgestone for defects in the tires that were
on the 1995 Ford Explorer and negligence relating thereto,
and against Ford for placing a defective vehicle into the
stream of commerce and for other claims, including claims
relating to "rollover resistance." In May of 2007,
the case was transferred as a "tag-along case" to
the 410th District Court of Montgomery County, as part of the
In re Bridgestone/Ford Multidistrict Litigation (the
"MDL court") and assigned "Individual Cause
No. 07-03-03185[.]" In the MDL court, Ford and
Bridgestone moved for a dismissal based on the forum non
conveniens doctrine and asserted that Mexico was the proper
forum. The MDL court dismissed the case on December 6, 2010,
based upon forum non conveniens. The dismissal order stated
that if Plaintiffs wanted to proceed with their claims in
Mexico, they could file their petition in the Mexican court.
The dismissal also provided, in relevant part, the following:
In the event that, despite Plaintiffs' good-faith efforts
to file their Petition or Complaint pursuant to the foregoing
Order, the Mexican court declares itself incompetent to
preside over the case, the Court orders that Plaintiffs shall
not be barred from re-filing and trying their claims in the
appropriate court in the State of Texas and proceeding before
. . . .
If Plaintiffs invoke this return jurisdiction clause and
re-file in the State of Texas, Plaintiffs may refile their
case in Jefferson County, and this Court shall at that time
have jurisdiction to determine whether the conditions for
invoking the return jurisdiction clause have been met.
on February 12, 2014, the Plaintiffs filed Plaintiff's
Original Petition and Request for Disclosure in Jefferson
County, Texas, and the suit was assigned cause number
A-0195335 (hereinafter the "2014 Suit"), and
assigned to the 58th Judicial District Court in Jefferson
County. In the petition, Plaintiffs alleged that they had
complied with the MDL court's return-jurisdiction clause
in the prior dismissal order. The Plaintiffs alleged that
they filed a suit in Mexico, and according to the Plaintiffs
"[t]he Mexico courts denied jurisdiction over the
Defendants in this matter." Plaintiffs alleged that
Cardenas's Ford Explorer and the Bridgestone tire on the
vehicle were defective, and asserted product-liability causes
August 1, 2014, Ford filed its "Special Appearance, and
Subject Thereto, Motion to Transfer Venue, and Subject
Thereto, Motion to Dismiss, and Subject to Each of the
Foregoing, Special Exceptions, Original Answer to
Plaintiffs' Original Petition, and Reliance on Jury
Demand" (hereinafter "Special Appearance"). In
its Special Appearance, Ford argued that Plaintiffs alleged
as jurisdictional facts only that Ford does business in the
State of Texas, and Ford stated that plaintiff's
allegation "is factually and legally insufficient to
demonstrate personal jurisdiction over Ford in Texas under
either specific or general jurisdiction analysis." Ford
pleaded certain jurisdictional facts that it argued precluded
Texas from imposing jurisdiction over them, and Ford
requested that the trial court decline to exercise
jurisdiction over Ford in the matter.
August 15, 2014, Bridgestone filed its "Special
Appearance, Motion to Transfer Venue, Motion to Dismiss and
Subject to Each of the Foregoing, Special Exceptions,
Original Answer to Plaintiffs' Original Petition[,
]" asserting certain jurisdictional facts and arguing
that Plaintiffs had failed to allege facts to support
specific or general jurisdiction over Bridgestone.
2014 Suit was transferred to the MDL court and assigned
individual cause number 14-10-11193-CR. Ford and Bridgestone
filed amended special appearances in the MDL court again
challenging personal jurisdiction. In the MDL court, the
Plaintiffs filed a motion to reopen their previously
dismissed case and to consolidate the old and new lawsuits.
In February 2015, the MDL court granted Plaintiffs'
motion and reopened Plaintiffs' old case
"administratively . . . for purposes of the
consolidation[, ]" and ordered that the consolidated
case proceed forward under "Individual Cause No.
14-10-11193[.]" Subsequently, the MDL litigation
proceedings were closed and the MDL court transferred
Plaintiffs' case back to the Jefferson County trial court
for further proceedings.
5, 2016, Plaintiffs filed a First Amended Petition,
asserting, among other things, causes of action for breach of
warranty, negligence, gross negligence, and strict product
liability against Ford and Bridgestone. The same day,
Plaintiffs filed a response to Ford's and
Bridgestone's special appearances and objections to and a
motion to strike the special appearances. In their objections
to and motion to strike the special appearances, Plaintiffs
alleged that Bridgestone's First Amended Special
Appearance did not include the attachments it referenced and
that any affidavit supporting the pleading should have been
served at least seven days prior to the hearing set for July
12, 2016. Plaintiffs also argued that Ford's special
appearance was defective because the verification provided by
Ford to its Special Appearance was from counsel for Ford and
was not based on personal knowledge, is conclusory, and did
not meet the requirements of Rule 120a of the Texas Rules of
Civil Procedure. And, Plaintiffs argued that Ford and
Bridgestone waived their special appearances because their
special appearances were not in compliance with Rule 120a and
"were not filed prior to any other pleading[.]"
11, 2016, Bridgestone filed its Second Amended Special
Appearance, with an attached affidavit from the Director of
Bridgestone's Product Analysis Department. On July 12,
2016, the trial court held a hearing on Ford's Second
Amended Special Appearance, Bridgestone's Second Amended
Special Appearance, and Plaintiffs' Objections to and
Motion to Strike Defendants' Special Appearances.
22, 2016, the 58th Judicial District Court in Jefferson
County entered an order denying Ford and Bridgestone's
special appearances and finding that Ford and Bridgestone are
subject to general jurisdiction but not specific
jurisdiction. The trial court also expressly overruled
Plaintiffs' objection to the lack of notice on
Bridgestone's Second Amended Special Appearance,
overruled Plaintiffs' objections to Ford's and
Bridgestone's special appearances, and denied
Plaintiffs' motion to strike Ford's and
Bridgestone's special appearances. Ford and Bridgestone
filed notices of appeal. In their joint appellate brief,
Appellants argue that the trial court erred in holding that
Ford and Bridgestone are subject to general jurisdiction in
Texas. Plaintiffs did not cross-appeal and no party has
challenged the trial court's ruling that the trial court
lacks specific jurisdiction over Bridgestone and Ford.
their joint appellate brief, Appellants present three issues.
In issues one and two, Appellants argue that the trial court
erred in denying their special appearances as to general
jurisdiction because they were not "at home" in
Texas. In issue three, Appellants contend that they did not
waive their personal-jurisdiction defense in this lawsuit by
their conduct in Plaintiffs' first suit.
a trial court has personal jurisdiction over a defendant is 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 Belg., N.V. v. Marchand,
83 S.W.3d 789, 794 (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, 658-59
(Tex. 2010); Retamco Operating, Inc. v. Republic Drilling
Co., 278 S.W.3d 333, 337 (Tex. 2009).
plaintiff meets its 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. A
defendant may negate the plaintiff's 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).
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). The Texas long-arm statute provides that in
addition to other acts that may constitute doing business in
Texas, a nonresident does business in this state if the
(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 (West
2015). Although an allegation of jurisdiction may satisfy the
Texas long-arm statute, the allegation still may not satisfy
the due process requirements under the United States
Constitution. Moncrief, 414 S.W.3d at 149.
Accordingly, a court must 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. 1996).
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 Operating, 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.