Rotenco, S.A. De C v. v. Oscar Pulido Individually and D/B/A International Industrial Suppliers Co., Surtind, Inc and Surtind Imp. & Exp., S.A. De C v. ( 2015 )

ACCEPTED
14-15-00517-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
9/21/2015 8:38:30 AM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00517-CV
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 9/21/2015 8:38:30 AM
CHRISTOPHER A. PRINE
FOR THE Clerk
FOURTEENTH COURT OF APPEALS DISTRICT OF TEXAS
ROTENCO, S.A. DE C.V.,
APPELLANT,
V.
OSCAR PULIDO, INDIVIDUALLY AND D/B/A INTERNATIONAL INDUSTRIAL SUPPLIERS
CO., SURTIND, INC., AND SURTIND IMP. & EXP., S.A. DE C.V.,
APPELLEES.
REPLY BRIEF OF APPELLANT
ROTENCO, S.A. DE C.V.
JEFFREY HILLER BETH WATKINS
STATE BAR NO. 00790883 STATE BAR NO. 24037675
CACHEAUX CAVAZOS & NEWTON LLP SHANNON K. DUNN
333 CONVENT STREET STATE BAR NO. 24074162
SAN ANTONIO, TEXAS 78205 LAW OFFICE OF BETH WATKINS
(210) 222-1642– PHONE 926 CHULIE DRIVE
(210) 222-2453– FAX SAN ANTONIO, TEXAS 78216
JHILLER@CCN-LAW.COM (210) 225-6666– PHONE
(210) 225-2300– FAX
BETH.WATKINS@WATKINSAPPEALS.COM
SHANNON.DUNN@WATKINSAPPEALS.COM
ATTORNEYS FOR APPELLANT
ORAL ARGUMENT CONDITIONALLY REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
RESPONSE TO APPELLEE’S STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. SURTIND IMPORT & EXPORT DOES NOT DISPUTE THAT IT MET WITH
ROTENCO IN HOUSTON ON MANY OCCASIONS . . . . . . . . . . . . . . . . . . . . . . . 5
II. SURTIND IMPORT & EXPORT’S CONTRACT WITH INTERNATIONAL,
STANDING ALONE, IS SUFFICIENT TO SUPPORT TEXAS’S JURISDICTION . . . . 6
A. Surtind Import & Export’s Own Brief Essentially Admits That It
Did Business In Texas As A Matter Of Law . . . . . . . . . . . . . . . . . . 6
B. Surtind Import & Export Controlled The Progress Of This
Business Deal From Beginning To End, And It Did So In Texas
...................................................... 9
III. VELASQUEZ’S AFFIDAVIT—THE ONLY EVIDENCE SURTIND IMPORT &
EXPORT PRESENTED IN SUPPORT OF ITS SPECIAL APPEARANCE—WAS
NOT LEGALLY OR FACTUALLY SUFFICIENT TO NEGATE ROTENCO’S
ASSERTION OF SPECIFIC JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-ii-
INDEX OF AUTHORITIES
CASES PAGE
Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) . . . . . . . . . . . . . . . . . . 17, 18
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) . . . . . . . . . . . . . . . . . . . 16
Harbour Heights Development, Inc. v. Seaback, 596 S.W.2d 296 (Tex. Civ.
App.–Houston [14th Dist.] 1980, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 17
Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408 (1984) . . . . . . . . . 7
Jackson v. Kincaid, 122 S.W.3d 440 (Tex. App.–Corpus Christi 2003, pet.
granted, judgm’t vacated w.r.m.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Jackson v. Thweatt, 883 S.W.2d 171 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 2
Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) . . . . . . . . . . . . . . . . . 8, 9
Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17
Navasota Res., Ltd. v. Heep Petroleum, Inc., 212 S.W.3d 463 (Tex.
App.–Austin 2006, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PT Intermediate Holding, Inc. v. LMS Consulting, LLC, No. 04-14-00827-CV,
2015 Tex. App. LEXIS 9669, at *20-21 (Tex. App.–San Antonio Sept.
16, 2015, no pet. h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rattner v. Contos, 293 S.W.3d 655 (Tex. App.–San Antonio 2009, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 13, 14, 15, 18
Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16
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Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538 (Tex. App.–Houston [14th
Dist.] 2007, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Spir Star AG v. Kimich, 310 S.W.3d 868 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . 13
Transportacion Especial Autorizada, S.A. de C.V. v. Seguros Comercial Am.,
S.A. de C.V., 978 S.W.2d 716 (Tex. App.–Austin 1998, no writ) . . . . . . . 7
Urban v. Barker, No. 14-06-00387-CV, 2007 Tex. App. LEXIS 1633 (Tex.
App.–Houston [14th Dist.] March 6, 2007, no pet.) . . . . . . . . . . . . . . . . 17
STATUTES AND RULES
Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Lexis 2015) . . . . . . . 7, 8, 9, 14, 17
Tex. R. Civ. P. 120a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Tex. R. Civ. P. 166a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-iv-
RESPONSE TO APPELLEE’S STATEMENT OF THE FACTS
Surtind Import & Export has presented this Court with a list of facts that are
allegedly “undisputed by [Rotenco].” Br. of Appellee at 4-7. However, a number of
the facts in Surtind Import & Export’s list are not now and have never been
“undisputed,” and this Court should not treat them as such during its review of the
trial court’s grant of Surtind Import & Export’s special appearance.
Surtind Import & Export claims it is undisputed that “Forum Oilfield
Technologies, Inc. (“Forum”) is a Louisiana corporation[.]” Br. of Appellee at 5. This
is not true. The lease agreement between Forum and International identifies Forum as
“a corporation organized under the laws of the State of Texas whose permanent
mailing address is” in Houston, Texas. CR 9. Moreover, Forum’s Senior Vice
President and General Counsel, James McCulloch, works out of Forum’s Houston
office. CR 183; CR 190-92; CR 195. At his office in Houston, McCulloch received
emails from both International and Surtind Import & Export about Rotenco’s lease of
the EDRs. CR 183; CR 190-92; CR 195. This is why Rotenco referred to Forum as a
Texas company throughout its opening brief—because the record shows that Forum
is a Texas company, and that Surtind Import & Export did business with it in Texas.
Compare CR 9, and CR 183, and CR 190-92, and CR 195, with Br. of Appellant at
x, 12, 17, 18.
-1-
Surtind Import & Export also alleges as an “undisputed” fact that it “was not
a party to the Lease Agreement.”1 Br. of Appellee at 5. But this fact is not even
undisputed within Surtind Import & Export’s own brief. Just one page after it claims
it was not a party to the lease agreement, Surtind Import & Export insists that it “was
unaware of Forum’s assignment of the Lease Agreement to Rotenco and did not
approve it.” Br. of Appellee at 6-7. Surtind Import & Export evidently believes that
Forum’s assignment of the lease to Rotenco was improper because Surtind Import &
Export was not given the chance to approve it. See id. Surtind Import & Export does
not explain, however, why it believes it should have been asked to “approve” the
assignment of a contract to which it was allegedly not a party. Compare id., with Br.
of Appellee at 5 (“Surtind [Import & Export] was not a party to the Lease
Agreement.”). Furthermore, while it is true that Surtind Import & Export is not
actually named as a signatory in the lease agreement, it is also true that Surtind Import
& Export voluntarily reached out to Forum and met with Forum and Rotenco in
Texas to plan and negotiate what would eventually become that contract and the rest
of the business deal that forms the basis for this lawsuit. CR 109; CR 150; CR 152-53.
1
Surtind Import & Export also contends that Rotenco is not party to the lease agreement. Br.
of Appellee at 7, 9. But because Forum assigned its rights under that lease to Rotenco, Surtind
Import & Export’s complaints that Rotenco “was not a party to the Lease Agreement” are of no
consequence to even the merits of this action, much less the narrower jurisdictional question that is
before this Court. Compare Br. of Appellee at 7, 9, with Jackson v. Thweatt, 883 S.W.2d 171, 175
(Tex. 1994) (“[A]n assignee receives the full rights of the assignor[.]”).
-2-
Surtind Import & Export further asserts that “[it] and Rotenco executed an
equipment lease agreement in Mexico and not Texas.” Br. of Appellee at 6. It does not
deny, however, that it met with Rotenco in Texas to negotiate the contract and plan
the business deal as a whole. CR 152-53. It also ignores that Rotenco’s lawsuit against
it does not arise out of the contract executed in Mexico, but instead out of the business
deal as a whole. See CR 37-41; see also CR 40 (alleging that “there is such unity
between [Surtind Import & Export and its sister entities Surtind, Inc. and
International] that the separateness of the single corporation has ceased, and holding
only a single corporation liable would result in injustice”).
Finally, Surtind Import & Export contends that it “does not have a place of
business, offices, bank accounts[,] or employees in Texas.” Br. of Appellee at 7. This
assertion is contrary to its own website, which explicitly referred to its “Houston
office” and named two employees in that office who used “@surtindsa.com” email
addresses. CR 237. Furthermore, Surtind Import & Export does not deny Pulido’s
testimony that “the great majority” of International’s work involves acting as “the
U.S. arm of” Surtind Import & Export. CR 233. Nor does it deny that during this
business deal, International essentially acted as a shell that allowed Surtind Import &
Export to pass money and equipment into and out of Texas. CR 231; CR 138-44; CR
222-23.
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SUMMARY OF THE ARGUMENT
When it organized and entered into the business deal at the center of this
lawsuit, Surtind Import & Export’s own website proudly proclaimed that it had an
office in Houston, Texas. It met in Texas with two Texas companies and Rotenco to
organize and negotiate the transfer of the EDRs to Rotenco. It did business in Texas
as a matter of law by entering into a contract with one of those Texas
companies—International—that called for International to perform its end of that
contract in Texas. It admitted in its discovery responses that the other Texas
company—Forum—had always been told it was dealing directly with Surtind Import
& Export. It used International—its “U.S. arm”—to funnel money to Forum through
Texas and to funnel equipment from Forum out of Texas. Finally, when its
relationship with Rotenco faltered, it reached out to Forum in Texas for help.
But now that all of those voluntary, purposeful contacts with Texas have come
home to roost, Surtind Import & Export wants this Court to believe that it has
absolutely no connection to Texas and that it would offend due process to subject it
to suit in this State. This Court should reject this assertion for the charade it is and
reverse the trial court’s order granting Surtind Import & Export’s special appearance.
-4-
ARGUMENT AND AUTHORITIES
I. SURTIND IMPORT & EXPORT DOES NOT DISPUTE THAT IT MET WITH
ROTENCO IN HOUSTON ON MANY OCCASIONS.
Throughout its brief, Surtind Import & Export insists that “all but one” meeting
with Forum took place in Louisiana. Br. of Appellee at 5, 7. This argument ignores,
however, that “the minimum-contacts analysis is focused on the quality and nature of
the defendant’s contacts, rather than their number.” Rattner v. Contos, 293 S.W.3d
655, 660 (Tex. App.–San Antonio 2009, no pet.) (internal quotation marks omitted).
Because the record shows that Surtind Import & Export’s meeting in Houston with
Forum is what set the business deal underlying this lawsuit into motion, the “quality
and nature” of that contact with Texas supports Texas’s jurisdiction over Surtind
Import & Export. CR 150 (Forum met with Velasquez in Houston); CR 225-26
(“[p]art of the discussion that took place in Houston” was Velasquez’s agreement “on
behalf of Surtind Import and Export” to import the EDRs into Mexico); CR 74 (Forum
was told it was dealing directly with Surtind Import & Export throughout the
negotiations); Rattner, 293 S.W.3d at 660-61.
Furthermore, Surtind Import & Export’s brief studiously ignores the evidence
that it took part in “[n]umerous negotiations, communications and meetings” with
Rotenco in Houston. CR 152-53; see also Br. of Appellant at 7. As noted in Rotenco’s
-5-
opening brief, a nonresident defendant “purposefully avail[s] itself of the benefits of
doing business in Texas” by sending “an authorized representative to Texas to solicit
and negotiate business deals.” Navasota Res., Ltd. v. Heep Petroleum, Inc., 212
S.W.3d 463, 470 (Tex. App.–Austin 2006, no pet.). Here, the evidence shows that
Surtind Import & Export did just that. CR 152-53. For this reason alone, the Court
should reverse the trial court’s order granting Surtind Import & Export’s special
appearance. Navasota Res., 212 S.W.3d at 470.
II. SURTIND IMPORT & EXPORT’S CONTRACT WITH INTERNATIONAL,
S TANDING A LONE , I S S UFFICIENT TO S UPPORT T EXAS ’ S
JURISDICTION.
A. Surtind Import & Export’s Own Brief Essentially Admits
That It Did Business In Texas As A Matter Of Law.
Surtind Import & Export’s brief admits that “International [l]eased [the EDRs]
to Surtind [Import & Export].” Br. of Appellee at 12. Its brief also unambiguously
states that “International Industrial Suppliers [is] a Texas corporation” and “[t]here is
no question that International Industrial Suppliers is the assumed name of Surtind,
Inc., a Texas corporation.” Br. of Appellee at 8. Finally, Surtind Import & Export’s
brief admits that International’s agreement with Surtind Import & Export required it
to ship the EDRs from Houston, Texas, to Laredo, Texas. Br. of Appellee at 9; see
also CR 138-44 (invoices showing International sold equipment to Surtind Import &
-6-
Export and shipped the equipment through a freight forwarder in Laredo).
As Rotenco pointed out in its opening brief, a nonresident defendant does
business in Texas as a matter of law “if the nonresident . . . 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.” Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1) (Lexis 2015).
Surtind Import & Export’s brief unequivocally shows that it did just that by entering
into a contract with a Texas resident—International—that required International to
perform its end of the contract in Texas. Br. of Appellee at 8, 9, 12. That contact with
Texas is an integral part of this lawsuit—after all, if the International/Surtind Import
& Export contract did not exist, Rotenco never would have received the EDRs in
question. CR 109; see also CR 150 (Surtind Import & Export, acting through
Velasquez, told Forum that it devised the three-contract setup for the benefit of “a
client of theirs in Mexico”—i.e., Rotenco). Rotenco’s lawsuit therefore “arises out of
or relates to” Surtind Import & Export’s admitted contract with International. See
Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 414 n.8 (1984); Rattner,
293 S.W.3d at 661. As a result, Surtind Import & Export’s contacts with Texas were
sufficient to support Texas’s jurisdiction over it as a matter of law. Compare Tex. Civ.
Prac. & Rem. Code § 17.042(1), with Br. of Appellee at 8, 9, 12; Transportacion
Especial Autorizada, S.A. de C.V. v. Seguros Comercial Am., S.A. de C.V., 978 S.W.2d
-7-
716, 721 (Tex. App.–Austin 1998, no writ).
Surtind Import & Export insists, however, that the contract between it and
International “expressly states that it was signed in Mexico.” Br. of Appellee at 13.
The only citation Surtind Import & Export provides to support this assertion is a
document that is written in Spanish and for which no English translation appears in
the record. Id. (citing CR 180). But this statement, even if true, is of no consequence
to the question before this Court. This is because the Legislature has unambiguously
directed that a nonresident defendant does business in Texas as a matter of law “if the
nonresident . . . 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.” Tex. Civ. Prac. & Rem.
Code § 17.042(1). Nothing in that plain language identifies the site of the contract’s
execution as a relevant consideration, and Surtind Import & Export has not provided
any authority to the contrary. Compare id., with Br. of Appellee at 13.
Surtind Import & Export cannot provide any such authority, because the rules
of statutory construction require this Court to presume that “the Legislature included
each word in the statute for a purpose and that words not included were purposefully
omitted.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). Here, the
Legislature’s language is clear—since Surtind Import & Export contracted with a
Texas resident and part of that contract was to be performed in Texas, Surtind Import
-8-
& Export did business in Texas, no matter where the contract was signed. Tex. Civ.
Prac. & Rem. Code § 17.042(1); see also Br. of Appellee at 8, 9, 12. By insisting that
the site of the contract’s execution has any relevance to the jurisdictional question at
issue here, Surtind Import & Export has asked this Court to apply a consideration that
does not exist in the plain language of the statute. Compare Tex. Civ. Prac. & Rem.
Code § 17.042(1), with Br. of Appellee at 13. This Court must reject Surtind Import
& Export’s implicit invitation to “judicially amend a statute by adding words that are
not contained in the language of the statute.” Lippincott, 462 S.W.3d at 508.
B. Surtind Import & Export Controlled The Progress Of This
Business Deal From Beginning To End, And It Did So In
Texas.
Surtind Import & Export argues that “[t]he relationship between Surtind [Import
& Export] and International does not establish jurisdiction in this case” because
“[t]here is no pleading of jurisdiction over Surtind [Import & Export] on the basis of
alter ego liability.” Br. of Appellee at 16. But this statement is flat wrong. Rotenco’s
live pleading contains the following paragraph under the heading “Agency/Individual
Liability/Joint Liability/Alter Ego and Piercing of Corporate Veil”:
-9-
CR 40 (highlighting added). This allegation in Rotenco’s live pleading plainly
contends that all of the entities owned by Velasquez are so closely linked that the trial
court should have treated them as one unit for jurisdictional purposes. See id. And
despite Surtind Import & Export’s protestations to the contrary, this allegation finds
ample support in the evidence. See CR 233 (International acts as the “U.S. arm of”
Surtind Import & Export); CR 231 (all of the money International received from
Surtind Import & Export for its “services” in facilitating the shipment of the EDRs
went directly to Forum); CR 198 (Velasquez thanked Forum’s general counsel “on
behalf of [International] and Surtind Imp. [sic] & Export S.A. de C.V.” for “taking the
time to listen to the problem we have with Rotenco”); CR 225-26 (Velasquez
negotiated the deal on behalf of both International and Surtind Import & Export). In
fact, as noted in Rotenco’s opening brief, Surtind Import & Export agreed in its
responses to discovery that Forum was always told it was dealing directly with Surtind
Import & Export “[w]ith regard to the Lease Agreement” with International. CR 74.
-10-
The Fourth Court of Appeals recently held that similar circumstances were sufficient
to impute the activities of a Texas defendant to its nonresident parent for the purpose
of establishing minimum contacts. See PT Intermediate Holding, Inc. v. LMS
Consulting, LLC, No. 04-14-00827-CV, 2015 Tex. App. LEXIS 9669, at *20-21 (Tex.
App.–San Antonio Sept. 16, 2015, no pet. h.).
But even if the evidence did not support a conclusion that International was
Surtind Import & Export’s alter ego, Surtind Import & Export’s own independent
contacts with Texas support jurisdiction here. Despite Surtind Import & Export’s
strenuous efforts to convince this Court otherwise, this lawsuit does not arise out of
a single, isolated contract between Rotenco and Surtind Import & Export. See, e.g.,
Br. of Appellee at 17. As Rotenco pointed out in its opening brief, the dispute at the
center of this case involves three interconnected contracts—not just one contract
standing alone—and Surtind Import & Export took the lead in negotiating, executing,
and maintaining all three:
C Forum was specifically told from the very beginning that it was
dealing directly with Surtind Import & Export. CR 74.
C Velasquez and Pulido voluntarily reached out to Forum, a Texas
company, to set this business deal in motion. CR 102; CR 150; CR
219.
C Velasquez and Pulido both met with a Forum representative in
Houston to discuss the proposed contracts. CR 150; CR 225.
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C Velasquez and Pulido both met with Rotenco “many times” in
Houston to discuss the proposed contracts. CR 152-53.
C Velasquez and Pulido told Forum’s representative they came up with the
plan involving the three contracts to benefit “a client of theirs in
Mexico”—i.e., Rotenco. CR 150; CR 225.
C Velasquez negotiated the deal as a whole on behalf of both Surtind
Import & Export and International. CR 225-26.
C Velasquez used his Surtind Import & Export email account and signature
to communicate with Forum about the “agreements between Forum and
[International] signed by us and you.” CR 193.
C All of the money Surtind Import and Export sent to International for its
“services” in facilitating the shipment of the EDRs went directly to
Forum. CR 231.
C Surtind Import & Export’s “International Purchases” representative,
Adriana Velasquez Rendon, used an International email address to send
Forum a message “on behalf of [International] and Surtind Imp. & Exp.
S.A. de C.V.” promising to “expedite the return of the equipment and the
payment of the rent” from Rotenco. CR 197-99 (emphasis added).
C When Surtind Import & Export’s relationship with Rotenco cooled, it
reached out to Forum in Houston for assistance. CR 190-92; CR 195; CR
197-98.
In other words, even though the record plainly shows that it took special care to ensure
it had its finger in all of the relevant pies, Surtind Import & Export would now like
this Court to believe it was not even in the kitchen. Compare Br. of Appellee, with CR
74 (Forum was specifically told it was dealing with Surtind Import & Export), and CR
-12-
150 (Forum met with both Velasquez and Pulido in Houston and received business
cards from both of them), and CR 152-53 (Rotenco met “many times” with Surtind
Import & Export “at its Houston office”), and CR 197-99 (Velasquez emailed Forum
on behalf of both International and Surtind Import & Export), and CR 225-26
(Velasquez negotiated on behalf of both International and Surtind Import & Export).
This Court should refuse to do so. See, e.g., Retamco Operating, Inc. v. Republic
Drilling Co., 278 S.W.3d 333, 339-40 (Tex. 2009).
“A court has specific jurisdiction over a defendant if its alleged liability arises
from or is related to an activity conducted within the forum.” Spir Star AG v. Kimich,
310 S.W.3d 868, 873 (Tex. 2010). Rotenco is not attempting to hale Surtind Import
& Export into a Texas court based on the unilateral actions of an unrelated third party
or even—as Surtind Import & Export claims in its brief—based on “the acts of a
subsidiary company.” See Retamco, 278 S.W.3d at 340; Br. of Appellee at 17-18. To
the contrary, Rotenco’s claims against Surtind Import & Export arise out of a business
deal that Surtind Import & Export planned, nurtured, and cultivated in Texas, with
Texas residents, on its own behalf. CR 109; CR 150; CR 152-53; CR 225-26; Rattner,
293 S.W.3d at 660-61. Surtind Import & Export has all but admitted that it
purposefully availed itself of the privilege of conducting activities in Texas to ensure
the success of this deal. Br. of Appellee at 8, 9, 12 (admitting that Surtind Import &
-13-
Export contracted with International, a Texas resident); Tex. Civ. Prac. & Rem. Code
§ 17.042(1). Because even Surtind Import & Export agrees that it did business in
Texas as part of the business deal that led to Rotenco’s lawsuit, the trial court should
have denied its special appearance. Rattner, 293 S.W.3d at 660-61.
III. VELASQUEZ’S AFFIDAVIT—THE ONLY EVIDENCE SURTIND IMPORT &
EXPORT PRESENTED IN SUPPORT OF ITS SPECIAL APPEARANCE—WAS
NOT FACTUALLY OR LEGALLY SUFFICIENT TO NEGATE ROTENCO’S
ASSERTION OF SPECIFIC JURISDICTION.
According to Surtind Import & Export, Velasquez’s unsupported, self-serving
affidavit presents more than a scintilla of evidence to support the trial court’s order
granting Surtind Import & Export’s special appearance. Br. of Appellee at 15-16. The
first page of Velasquez’s affidavit identifies him as the president of Surtind Import &
Export and gives a brief overview of the facts of this case. CR 257. There is no
specific discussion of Surtind Import & Export’s contacts with Texas on the first page
of Velasquez’s affidavit. See id.
On the second page of his affidavit, however, Velasquez told the trial court that:
C Surtind Import & Export “does not engage in business in Texas”;
C Surtind Import & Export “does not have a place of business,
offices, bank accounts[,] or employees in Texas”;
C Rotenco’s claims “did not arise from any purposeful act or
transaction [by Surtind Import & Export] in Texas”;
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C Surtind Import & Export “has no substantial connection with
Texas arising from any action or conduct purposefully directed
toward Texas, [Rotenco’]s claims do not arise from and are not
related to any activity conducted by [Surtind Import & Export] in
Texas, and [Surtind Import & Export] has no continuing and
systematic contacts in Texas.”
CR 258. Only one of those statements—Velasquez’s assertion that Surtind Import &
Export “does not have a place of business, offices, bank accounts[,] or employees in
Texas”—is even arguably a factual contention, and it is completely contrary to the rest
of the evidence. See CR 237 (Surtind Import & Export’s own website explicitly
referred to its “Houston office” and named two employees in that office who used
“@surtindsa.com” email addresses); CR 233 (International acts as the “U.S. arm of”
Surtind Import & Export); CR 235 (Velasquez’s business card lists both a Mexican
address and a Houston address). The Court should therefore reject Surtind Import &
Export’s claim that it “does not have a place of business, offices, bank accounts[,] or
employees in Texas” because it is contrary to the great weight and preponderance of
the evidence. Rattner, 293 S.W.3d at 658.
But even if this Court accepts this factual contention, it is only sufficient to
challenge an assertion that Surtind Import & Export is subject to general jurisdiction
based on “continuous and systematic contacts” with Texas. See Moncrief Oil Int'l, Inc.
v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). It does not in any way challenge,
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let alone negate, the specific jurisdiction assertions that Rotenco actually raised in its
petition by alleging that “the contract at issue was negotiated, executed, and
performable in Harris County, Texas.”2 CR 38; see also Moncrief, 414 S.W.3d at 150.
As a result, Surtind Import & Export’s insistence that it “does not have a place of
business, offices, bank accounts[,] or employees in Texas” is not enough to support
the trial court’s decision to grant Surtind Import & Export’s special appearance.
Moncrief, 414 S.W.3d at 150; Retamco, 278 S.W.3d at 337.
The other “facts” in Velasquez’s affidavit are not really facts at all. CR 258.
Instead, Velasquez’s affidavit simply recites the legal standards courts use to
determine whether personal jurisdiction exists, without offering any facts to show how
those standards apply in this case. Compare id., with Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475-76 (1985). His affidavit does not recite facts of which he has
personal knowledge, only legal conclusions intended to defeat Texas’s jurisdiction
over his company. CR 258. Moreover, nothing in Velasquez’s affidavit demonstrates
2
Surtind Import & Export’s brief contends that “Rotenco incorrectly premises jurisdiction
based on tort law” because Rotenco’s opening brief cited this Court’s opinion in Hoagland v.
Butcher. Br. of Appellee at 11. This argument is flawed because it ignores that committing a tort in
Texas—as the defendants in Hoagland did—is only one of “a non-exclusive list of activities that
constitute doing business” in this State. See, e.g., Jackson v. Kincaid, 122 S.W.3d 440, 447 (Tex.
App.–Corpus Christi 2003, pet. granted, judgm’t vacated w.r.m.). Rotenco has always maintained
that Surtind Import & Export is subject to Texas’s jurisdiction because the contracts it entered into
in this State and with residents of this State form the basis of this lawsuit. CR 37-44; Br. of
Appellant at 11-17. Surtind Import & Export has not offered this Court any reason to limit its
Hoagland analysis to cases that involve a tort committed in Texas. Br. of Appellee at 11.
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that he is qualified to offer opinion testimony on these legal conclusions. Cf. Southtex
66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 544 (Tex. App.–Houston [14th Dist.] 2007,
pet. denied);3 see also Moncrief, 414 S.W.3d at 150 (existence of personal jurisdiction
is a question of law). As a result, this portion of Velasquez’s affidavit consists solely
of unsupported legal conclusions “and [was] therefore improper proof.” Harbour
Heights Development, Inc. v. Seaback, 596 S.W.2d 296, 297 (Tex. Civ. App.–Houston
[14th Dist.] 1980, no writ). And, as noted above, one of these legal conclusions—that
Surtind Import & Export “does not engage in business in Texas”—contradicts the
facts at issue here as well as the law, even under the arguments in Surtind Import &
Export’s own brief. Compare Tex. Civ. Prac. & Rem. Code § 17.042(1), with Br. of
Appellee at 8, 9, 12. That contradiction should have caused the trial court to deny the
special appearance. See id.
Unsupported legal conclusions like Velasquez’s claim that Surtind Import &
Export “has no substantial connection with Texas” and that Rotenco’s claims “did not
arise from any purposeful act or transaction” in Texas are no evidence at all and
cannot support the trial court’s order granting Surtind Import & Export’s special
3
Southtex is a summary judgment case. Southtex, 238 S.W.3d at 544. Because the rules
regarding special appearance affidavits and summary judgment affidavits are very similar, this Court
has previously relied on summary judgment cases to evaluate the sufficiency of special appearance
affidavits. See Urban v. Barker, No. 14-06-00387-CV, 2007 Tex. App. LEXIS 1633, at *5-6 (Tex.
App.–Houston [14th Dist.] March 6, 2007, no pet.) (citing Brownlee v. Brownlee, 665 S.W.2d 111,
112 (Tex. 1984)); compare Tex. R. Civ. P. 120a(3), with Tex. R. Civ. P. 166a(f).
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appearance. Tex. R. Civ. P. 120a(3) (special appearance affidavits “shall set forth
specific facts as would be admissible in evidence”); cf. Brownlee, 665 S.W.2d at 112.
Despite Surtind Import & Export’s claims to the contrary in this Court, Velasquez’s
affidavit failed to present more than a scintilla of evidence to even challenge
Rotenco’s jurisdictional assertions, much less to negate them. See id. As a result, this
Court should reverse the trial court’s order granting Surtind Import & Export’s special
appearance. Cf. Rattner, 293 S.W.3d at 662.
CONCLUSION AND PRAYER
Surtind Import & Export voluntarily came to Texas to organize a business deal.
CR 150. By its own admission, it contracted with Texas residents to do so. Br. of
Appellee at 8, 9, 12. It met with Rotenco in Texas to negotiate that business deal. CR
152-53. It reached out to a Texas resident for help when its contractual relationship
with Rotenco started to fall apart. CR 190-92; CR 195; CR 197-98. But now that
Rotenco has sued it in Texas, it would like to wash it hands of all of these contacts
with Texas and declare that it never intended to subject itself to Texas’s jurisdiction.
But because the record amply demonstrates that Surtind Import & Export’s own
voluntary, purposeful actions in Texas form the basis for this lawsuit, this Court
should reverse the trial court’s decision to allow it to do so.
For these reasons and the reasons expressed in Rotenco’s opening brief,
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Appellant Rotenco, S.A. de C.V., prays that this Court will reverse the trial court’s
order granting Appellee Surtind Imp. & Exp., S.A. de C.V.’s special appearance and
remand this cause for a trial on the merits on Appellant’s claims against all of the
Appellees. Appellant also prays for any further relief to which it may be entitled in
law or equity.
Respectfully submitted,
/s/ Shannon K. Dunn
Beth Watkins
Texas Bar No. 24037675
Shannon K. Dunn
Texas Bar No. 24074162
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666– phone
(210) 225-2300– fax
Attorneys for Appellant
Rotenco, S.A. de C.V.
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CERTIFICATE OF SERVICE
I hereby certify that on September 21, 2015, a true and correct copy of this brief
was forwarded in accordance with rule 9.5 of the Texas Rules of Appellate Procedure
to the following counsel of record:
Yocel Alonso
130 Industrial Boulevard, Suite 110
Post Office Box 45
Sugar Land, Texas 77487
yocelaw@aol.com
/s/ Shannon K. Dunn
Shannon K. Dunn
Attorney for Appellant
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CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), undersigned counsel certifies that this
brief complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2).
1. Exclusive of the portions exempted by Tex. R. App. P. 9.4(i)(1), this brief
contains 4,461 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Times
New Roman 14 point font in text and Times New Roman 12 point font in footnotes
produced by Corel WordPerfect X6 software and converted to PDF format by Acrobat
Distiller 10.1.3.
/s/ Shannon K. Dunn
Shannon K. Dunn
COUNSEL FOR APPELLANT
ROTENCO, S.A. DE C.V.
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