EMO Trans, Inc. v. Inmobiliaria Axial, S.A. De C v. ( 2022 )


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  •                                     COURT OF APPEALS
    EIGHTH DISTRICT OF TEXAS
    EL PASO, TEXAS
    EMO TRANS, INC.,                                §                No. 08-20-00200-CV
    Appellant,       §                   Appeal from the
    v.                                              §                 41st District Court
    INMOBILIARIA AXIAL, S.A. de C.V.,               §              of El Paso County, Texas
    Appellee.        §                (TC# 2019DCV3980)
    OPINION
    This interlocutory appeal stems from the trial court’s denial of Appellant EMO Trans,
    Inc.’s (EMO Trans) special appearance filed pursuant to Texas Rule of Civil Procedure 120a.
    Appellee Inmobiliaria Axial, S.A. de C.V. (Axial), the plaintiff in the underlying case, is the owner
    of a warehouse in Juarez, Mexico. Axial filed suit against EMO Trans and one of its employees to
    recover lease payments owed by warehouse tenant Empresa Mexicana Organizadora de Servicios
    Logisticos S. de R.L. (Empresa). EMO Trans objected to the trial court’s exercise of general and
    specific jurisdiction, arguing it was not “at home” in Texas and Axial’s claims did not arise out of
    or relate to any of EMO Trans’ purposeful contacts with Texas. The trial court denied EMO Trans’
    special appearance. We reverse and remand.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    EMO Trans is a New York corporation with its headquarters and principal place of business
    in Garden City, New York. Operating as a cargo logistics company, the business facilitates supply
    chain solutions for customers in the U.S. and other cities worldwide. The company maintains
    offices nationwide including three in Texas. One such office is located in El Paso. Out of EMO
    Trans’ nearly four hundred employees in the United States, only thirty-eight are based in Texas.
    None of whom are officers of the corporation.
    Axial is a Mexican corporation headquartered in Juarez, Mexico. Relevant to this appeal,
    Axial owns a warehouse in Juarez which was subject to two, sequential leases. In 2008, Axial
    leased warehouse space to Empresa (Lease 1) for a two-year term. After Lease 1 expired in 2010,
    Axial entered a second lease with Empresa for additional warehouse space (Lease 2). No party
    disputes that both leases were entered into by Axial and Empresa, and EMO Trans was not a named
    party to either lease. 1 EMO Trans acknowledges it stored its customers’ cargo in the leased
    Mexican warehouse but it does not specify during which lease or for what duration.2
    Axial alleges Empresa failed to make timely lease payments during three different time
    periods: July 2009 through October 2009; March 2012 through May 2012; and January 2014
    through October 2016. Although many payments were ultimately resolved, Axial eventually sued
    Empresa in Mexico to recover unpaid rent and to evict the company from the Juarez warehouse.
    Axial successfully obtained a judgment of $1.6 million against Empresa, which it then
    domesticated in Texas. In February 2019, Axial demanded payment of the judgment from EMO
    1
    There is no copy of the written lease included in our record.
    2
    In its brief, EMO Trans contends it was no longer using the warehouse for storage between 2014 through 2016,
    which it asserts is the time period relevant to the underlying lawsuit.
    2
    Trans. When EMO Trans refused, Axial filed the underlying suit against EMO Trans and its
    employee Ernesto Yoshimoto.
    Axial alleged that Yoshimoto, acting as the agent of EMO Trans, gave multiple assurances
    and representations that it would honor and comply with the “lease/financial obligations” of
    Empresa. Specifically, Axial asserted that EMO Trans’ executives attended multiple meetings held
    at a Starbucks in El Paso. Axial contended the meetings concerned material matters pertaining to
    the warehouse lease in Mexico. Axial also contended that EMO Trans’ Houston office was the
    point of contact for matters concerning the Mexican lease.3
    Axial pleaded allegations of breach of contract, collateral estoppel, fraud, and joint
    enterprise, and sought actual, nominal, consequential, and exemplary damages. Following service
    of process, EMO Trans filed a special appearance. EMO Trans contended it was not subject to
    personal jurisdiction in the state of Texas as to the entire case and as to all claims asserted against
    it. Specifically, EMO Trans contended there was no statutory or constitutional basis for the trial
    court to exercise personal jurisdiction over it as to the claims asserted by the suit.
    In support of its special appearance, EMO Trans provided the affidavit of Thomas Harlin,
    an Executive Vice President and Chief Financial officer of the corporation. Harlin averred that
    EMO Trans had never entered into an agreement of any kind with Axial, nor made any assurances
    or promises to it with respect to a lease that Axial had entered with Empresa. Harlin further averred
    that EMO Trans had no corporate ownership, no corporate affiliation, nor any affiliation with
    Empresa, and none of its corporate officers or employees were corporate officers or employees of
    Empresa. Harlin acknowledged, however, that EMO Trans had previously stored its customers’
    cargo in the Juarez warehouse that Empresa had leased from Axial.
    3
    Axial did not proffer any of the written representations made by EMO Trans or any evidence of payments made.
    3
    When Axial served written discovery on EMO Trans and Yoshimoto, they both objected
    to all inquiries and requests for production. Axial filed a motion to compel urging it was entitled
    to discovery to the extent of EMO Trans’ special appearance. Axial also responded to EMO Trans’
    special appearance and included an affidavit of Juan Alvarez, founder and sole administrator of
    Axial. Alvarez averred that, starting in 2008, he had an office in El Paso where he worked on a
    daily basis. To the extent he had phone communications and email exchanges with EMO Trans,
    he asserted those communications occurred in El Paso. Among other assertions, Alvarez claimed
    that EMO Trans’ corporate executives made promises and assurances “that EMO Trans would
    honor and comply with lease obligations of its Mexican operations.”
    Following a non-evidentiary hearing, the trial court denied EMO Trans’ special
    appearance, entering a general order without any associated findings of fact and conclusions of
    law. This interlocutory appeal then followed. See TEX. CIV. PRAC. & REM. CODE ANN.
    § 51.014(a)(7) (authorizing interlocutory appeal from the denial of a special appearance).
    II. DISCUSSION
    In two issues, EMO Trans asserts the trial court erred in ruling it was subject to personal
    jurisdiction in Texas.
    A. Standard of Review
    Whether a court has personal jurisdiction over a defendant is a question of law. BMC
    Software Belgium, N.V. v. Marchand, 
    83 S.W.3d 789
    , 794 (Tex. 2002). To reach that question,
    however, a trial court must sometimes resolve questions of fact. Am. Type Culture Collection, Inc.
    v. Coleman, 
    83 S.W.3d 801
    , 806 (Tex. 2002). Thus, we review a trial court’s denial of a special
    appearance under a mixed standard of review. Western Technologies, Inc. v. Omnivations II,
    L.L.C., 
    583 S.W.3d 786
    , 791 (Tex. App.—El Paso 2019, no pet.). We defer to the trial court’s
    4
    resolution of contested facts so long as the findings are supported by legally and factually sufficient
    evidence. 
    Id.
     We review de novo the trial court’s application of those facts to the law. 
    Id.
    When no findings of fact and conclusions of law are filed by the trial court, as is applicable
    here, all relevant facts that are necessary to support the judgment and supported by the evidence
    are implied. Old Republic Nat’l Title Ins. Co. v. Bell, 
    549 S.W.3d 550
    , 558 (Tex. 2018); I & JC
    Corp. v. Helen of Troy L.P., 
    164 S.W.3d 877
    , 883 (Tex. App.—El Paso 2005, pet. denied). When
    the appellate record includes the reporter’s record and clerk’s record, the implied findings are not
    conclusive and may be challenged for legal and factual sufficiency. I & JC Corp., 
    164 S.W.3d at 883-84
    .
    Initially, the plaintiff bears the burden to plead sufficient allegations to bring the
    nonresident defendant within the provisions of the Texas long-arm statute. Kelly v. Gen. Interior
    Constr., Inc., 
    301 S.W.3d 653
    , 658 (Tex. 2010). This notice-pleading requirement is “minimal”
    and “can be satisfied with an allegation that the nonresident defendant is doing business in Texas
    or committed tortious acts in Texas.” Gaddy v. Fenenbock, No. 08-22-00041-CV, 
    2022 WL 2965964
    , at *7 (Tex. App.—El Paso July 27, 2022, no pet.). Once the plaintiff satisfies the initial
    burden, the defendant challenging jurisdiction has the burden to negate all bases for personal
    jurisdiction and focus its arguments to allegations in plaintiff’s pleading. Omnivations, 583 S.W.3d
    at 791. “Because the plaintiff defines the scope and nature of the lawsuit, the defendant’s
    corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff’s pleading.”
    Kelly, 301 S.W.3d at 658.
    Personal jurisdiction can be negated on either a factual or legal basis. Id. at 659. Factually,
    “the defendant can present evidence that it has no contacts with Texas, effectively disproving the
    plaintiff’s allegations.” Id. The defendant may attack the legal basis for personal jurisdiction in
    5
    any of the following ways: challenging the legal sufficiency of the jurisdictional facts; showing
    that its contacts do not rise to the level of purposeful availment; for specific jurisdiction, that the
    plaintiff’s claims do not arise from the defendant’s contacts; or that the exercise of jurisdiction
    offends the traditional notions of fair play and substantial justice. If a nonresident defendant has
    presented evidence to disprove the jurisdictional allegations, the plaintiff must respond with
    evidence establishing personal jurisdiction over the nonresident defendant. Id.
    B. Applicable law
    A Texas court may exercise personal jurisdiction over a nonresident defendant when doing
    so is permitted by the Texas long-arm statue and the exercise of jurisdiction is consistent with
    federal and state due-process guarantees. Bell, 549 S.W.3d at 558; TV Azteca v. Ruiz, 
    490 S.W.3d 29
    , 36 (Tex. 2016); see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 17.041-.045 (long-arm
    statute). Under the long-arm statute, a nonresident is present in Texas for purposes of personal
    jurisdiction when the nonresident is doing business in the state. See TEX. CIV. PRAC. & REM. CODE
    ANN. § 17.042; Kerlin v Sauceda, 
    263 S.W.3d 920
    , 927 (Tex. 2008). Doing business in this state
    includes certain acts by a nonresident such as: “(1) contract[ing] by mail or otherwise with a Texas
    resident and either party is to perform the contract in whole or in part in this state” and “(2)
    commit[ting] a tort in whole or in part in this state.” TEX. CIV. PRAC. & REM. CODE ANN.
    § 17.042(1), (2).
    Still, even if the long-arm statute permits the exercise of jurisdiction over a nonresident
    defendant, a court’s jurisdiction is also limited by the Due Process Clause of the U.S. Constitution.
    Moki Mac River Expeditions v. Drugg, 
    221 S.W.3d 569
    , 579 (Tex. 2007) (“Federal due-process
    requirements limit a state’s power to assert personal jurisdiction over a nonresident defendant.”).
    Such constitutional protection guarantees that a party cannot be bound by the judgment of a forum
    6
    with which the party has established no meaningful contacts, ties, or relations. Nat’l Indus. Sand
    Ass’n v. Gibson, 
    897 S.W.2d 769
    , 772 (Tex. 1995). In short, the long-arm statute extends a Texas
    court’s personal jurisdiction but only as far as the federal constitutional requirement of due process
    will permit. See Moki Mac, 221 S.W.3d at 575. A Texas court can exercise jurisdiction over a
    nonresident defendant only if “(1) the defendant has established ‘minimum contacts’ with the state
    and (2) the exercise of jurisdiction comports with ‘traditional notions of fair play and substantial
    justice.’” TV Azteca, 490 S.W.3d at 36 (quoting Int’l Shoe Co. v. Washington, 
    326 U.S. 310
    , 316
    (1945)); see also Spir Star AG v. Kimich, 
    310 S.W.3d 868
    , 872 (Tex. 2010).
    Minimum contacts exist when the nonresident defendant purposefully avails itself of the
    privilege of conducting activities in the forum state invoking the benefits and protections of its
    laws. Retamco Operating, Inc. v. Republic Drilling Co., 
    278 S.W.3d 333
    , 338 (Tex. 2009).
    Purposeful availment is the “touchstone” of jurisdictional due process. Michiana Easy Livin’
    Country, Inc. v. Holten, 
    168 S.W.3d 777
    , 784 (Tex. 2005). To determine whether a nonresident
    defendant availed itself of the benefits of Texas law, we look to (1) the relevant contacts of the
    defendant, not the unilateral activity of another party or a third person; (2) whether the contacts
    are purposeful rather than random, fortuitous, isolated, or attenuated; and (3) whether the
    defendant seeks some benefit, advantage, or profit by availing itself of the jurisdiction. Moncrief
    Oil Int’l Inc. v. OAO Gazprom, 
    414 S.W.3d 142
    , 151 (Tex. 2013). The purposeful availment test
    focuses on the defendant’s efforts to avail itself of the forum, not on the form of the cause of action
    chosen by the plaintiff. Moki Mac, 221 S.W.3d at 576. The minimum-contacts requirement
    protects due-process rights by permitting a state to exercise jurisdiction over a nonresident
    defendant only when the defendant “could reasonably anticipate being haled into court there.”
    Moncrief Oil, 414 S.W.3d at 152.
    7
    A nonresident defendant’s minimum contacts may give rise to two types of personal
    jurisdiction: general and specific. TV Azteca, 490 S.W.3d at 37. If the defendant has made
    continuous and systematic contacts with the forum, general jurisdiction is established. M & F
    Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., Inc., 
    512 S.W.3d 878
    , 885 (Tex. 2016) (such
    contacts essentially render the defendant “at home” in the forum state). This test requires
    “substantial activities within the forum” and presents “a more demanding minimum contacts
    analysis than for specific jurisdiction.” BMC Software, 83 S.W.3d at 797. When the requisite level
    of activities in the forum are established, a court may exercise jurisdiction even if the cause of
    action did not arise from activities performed in the forum state. Spir Star, 310 S.W.3d at 872. In
    contrast, when specific jurisdiction is alleged, the minimum-contacts analysis focuses on the
    “relationship among the defendant, the forum, and the litigation.” Moki Mac, 221 S.W.3d at 575-
    576 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 
    815 S.W.2d 223
    , 228 (Tex. 1991)). Specific jurisdiction is triggered only “if the defendant’s alleged liability
    ‘arises out of or is related to’ an activity conducted within the forum.” Id. at 576 (quoting
    Helicopteros Nacionales de Columbia v. Hall, 
    466 U.S. 408
    , 414 n.8 (1984)).
    Even when a nonresident has established minimum contacts with a state, the second prong
    of the due process inquiry requires proof that a state’s exercise of jurisdiction over the nonresident
    defendant comports with “traditional notions of fair play and substantial justice.” TV Azteca, 490
    S.W.3d at 55 (quoting Int’l Shoe, 
    326 U.S. at 316
    ; Moncrief Oil, 414 S.W.3d at 154). Under this
    requirement, courts must consider several factors to evaluate the fairness and justness of exercising
    jurisdiction over a nonresident defendant:
    (1) the burden on the defendant; (2) the interests of the forum in adjudicating the
    dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4)
    the international judicial system’s interest in obtaining the most efficient resolution
    of controversies; and (5) the shared interest of the several nations in furthering
    8
    fundamental substantive social policies.
    Id. at 55 (citing Moncrief Oil, 414 S.W.3d at 155). Moreover, when the defendant is a citizen of a
    foreign country, and not just another state, we consider additional factors to include: “(6) the
    unique burdens placed upon the defendant who must defend itself in a foreign legal system; (7)
    the state’s regulatory interests; and (8) the procedural and substantive policies of other nations
    whose interests are affected as well as the federal government’s interest in its foreign relations
    policies.” Id. (quoting Guardian Royal Exch. Assur., 815 S.W.2d at 229). A nonresident defendant
    may defeat jurisdiction by presenting “a compelling case that the presence of some consideration
    would render jurisdiction unreasonable.” Id. (quoting Spir Star AG v. Kimich, 
    310 S.W.3d 868
    ,
    879 (Tex. 2010)).
    III. PERSONAL JURISDICTION
    EMO Trans assigns two errors to the trial court’s denial of its special appearance. First, as
    a corporate defendant, it contends it is both domiciled and has its principal place of business in
    New York. It thus contends it is only “at home” in New York, and not subject to the exercise of
    general jurisdiction in Texas. Second, although EMO Trans acknowledges that it conducts cargo
    logistics business activities in Texas, it nonetheless contends it is not subject to the exercise of
    specific jurisdiction in Texas with regard to the claims asserted in Axial’s suit.
    We address both issues in turn.
    IV. GENERAL JURISDICTION
    In its first issue, EMO Trans asserts it is not subject to general jurisdiction in Texas.
    Specifically, it asserts it is not “at home” in the state and no exceptional circumstance exists to
    confer such jurisdiction.
    General or all-purpose jurisdiction describes a defendant with contacts so “continuous and
    9
    systematic ‘as to render [it] essentially at home in the forum State.’” Goodyear Dunlop Tires
    Operations, S.A. v. Brown, 
    564 U.S. 915
    , 919 (2011) (quoting Int’l Shoe, 
    326 U.S. at 317
    ). In such
    a case, “jurisdiction may be proper even without a relationship between defendant’s particular act
    and the cause of action.” Schlobohm v. Schapiro, 
    784 S.W.2d 355
    , 357 (Tex. 1990). As the United
    States Supreme Court has explained, however, it would be an “exceptional case” in which a
    company’s activities in a state other than its principal place of business or formal place of
    incorporation might be “so substantial and of such a nature as to render the corporation at home in
    that State.” Daimler AG v. Bauman, 
    571 U.S. 117
    , 139 n.19 (2014).
    Axial does not dispute that EMO Trans is a New York corporation which is neither
    incorporated nor headquartered in Texas. Rather, Axial argued in the court below that the exercise
    of general jurisdiction over EMO Trans was proper based on it having three permanent offices in
    the state including one in El Paso. Indeed, the affidavit of Thomas Harlin, its Chief Financial
    Officer and Executive Vice President, indicates there are 38 employees who regularly work and
    conduct business in those three offices. But even so, Harlin further avers that EMO Trans
    “maintains 85 offices in 19 countries throughout the world, including the United States.” Four
    hundred employees are employed nationwide; and no corporate officers are included among its 38
    employees in the state.
    Axial provides no information regarding EMO Trans’ activities “in their entirety,
    nationwide and worldwide,” and such information is critical because “[a] corporation that operates
    in many places can scarcely be deemed at home in all of them.” Daimler, 571 U.S. at 139 n.20;
    see also Bryant v. Roblee, 
    153 S.W.3d 626
    , 631 (Tex. App.—Amarillo 2004, no pet.) (finding
    evidence that nonresident defendant made an occasional loan to Texas residents “does not tell
    much about the quality and nature” of contacts, absent evidence showing, for example, where or
    10
    in what manner loans were made, or whether loan customers were individuals or entities). Absent
    contextual information, these kinds of contacts do not confer general jurisdiction. See Daimler,
    571 U.S. at 139 n.20; see also Bautista v. Trinidad Drilling Ltd., 
    484 S.W.3d 491
    , 503
    (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“[W]ithout evidence about the full nature of
    [defendant]’s business and contacts with Texas as compared to other forums, the record does not
    support the exercise of general jurisdiction based on the presence of a single employee in Texas.”);
    Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Co., 
    472 S.W.3d 744
    , 759 (Tex. App.—
    Houston [1st Dist.] 2015, no pet.) (“Occasional travel to Texas is insufficient by itself to establish
    continuous and systematic contact with the state.”); DENSO Corp. v. Hall, 
    396 S.W.3d 681
    , 693-
    94 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (finding 155 trips to Texas by foreign
    corporation personnel over ten-year period did not support general jurisdiction because evidence
    did not establish general business presence).
    Axial’s allegations and the record evidence do not support an implied finding that EMO
    Trans’ contacts with Texas were so substantial that it was “essentially at home” in Texas. See
    Goodyear, 
    564 U.S. at 919
    . As a result, we conclude that EMO Trans satisfied its burden to negate
    its unrelated contacts with Texas as a basis for the exercise of general jurisdiction. See Kelly, 301
    S.W.3d at 659.
    Accordingly, we sustain EMO Trans’ first issue. Because Axial additionally alleged the
    trial court has specific jurisdiction over EMO Trans, we next address that second basis for the
    court’s exercise of personal jurisdiction.
    V. SPECIFIC JURISDICTION
    In its second issue, EMO Trans asserts the trial court erred in ruling that it was subject to
    the exercise of specific jurisdiction in Texas. A trial court can exercise personal jurisdiction when
    11
    a nonresident defendant has established minimum contacts with the forum state and the exercise
    of jurisdiction comports with traditional notions of fair play and substantial justice. Int’l Shoe, 
    326 U.S. at 316
    ; Moki Mac, 221 S.W.3d at 575. Minimum contacts requires that (1) there must be
    purposeful availment of the privilege of conducting activities in the state, and (2) the liability must
    have arisen from or be related to those contacts. Moki Mac, 221 S.W.3d at 576. Both requirements
    must be met. Id.
    Because two cases of the Supreme Court of Texas guide our analysis, we begin our
    discussion with a review of the following cases, M & F Worldwide Corp. v. Pepsi-Cola Metro.
    Bottling Co., Inc., 
    512 S.W.3d 878
     (Tex. 2017), and Moki Mac, 221 S.W.3d at 569.
    A. M&F Worldwide Corp. v. Pepsi-Cola Metropolitan Bottling Co.
    In M&F Worldwide Corp., the nonresident plaintiff, Pepsi, filed suit against two sets of
    defendants, the Cooper defendants—not a party to the appeal—and the Mafco defendants. M & F
    Worldwide Corp., 512 S.W.3d at 880. The basis of Pepsi’s claims involved the effect of a 2011
    settlement agreement that resolved a New York lawsuit filed by Pneumo Abex, LLC—a subsidiary
    of International Holdings—against the Cooper defendants. Id. The New York lawsuit arose from
    alleged disputes over indemnity obligations that some of the Cooper and Mafco defendants owed
    Pneumo Abex for asbestos-related claims. Id. In turn, Pneumo Abex had asbestos-related
    indemnity obligations to Pepsi, and, in this lawsuit, Pepsi asserted the settlement agreement
    interfered with those obligations. Id. Pepsi sued the Cooper and Mafco defendants alleging, by
    virtue of the settlement agreement, the parties to the agreement tortiously interfered with another
    nonresident company’s indemnity obligations to Pepsi. Id. at 879-80. Pepsi alleged Texas had
    general and specific jurisdiction over the nonresident defendant, Mafco, alleging Mafco traveled
    to Texas to discuss the agreement and entered into contracts with the Cooper defendants, who were
    12
    Texas residents, and the agreement required substantial performance in Texas. Id. at 884. The trial
    court denied Mafco’s special appearance, and the Houston Court of Appeals, Fourteenth District,
    affirmed. Id.
    On review, the Supreme Court concluded the trial court lacked specific jurisdiction over
    the Mafco defendants. Id. at 890. Specifically, the Court held that plaintiff’s allegations that the
    defendants “twice traveled to Texas to negotiate an allegedly tortious plan with [the Texas-resident
    Cooper defendants], developed that plan through hundreds of communications sent to Texas, and
    carried out that plan through agreements performed in Texas[,]” were not enough to meet the
    standard for specific jurisdiction. Id. at 886-87. The Court noted Pepsi did not allege the Mafco
    defendants committed any torts in Texas by negotiating the agreement, or that they committed any
    torts against Texas residents. Id. “The torts at issue—fraudulent transfer and tortious
    interference—hinge on the effect of the parties’ execution of the New York settlement agreement
    and related conduct that occurred outside of Texas.” Id. at 887. The Court held that, even assuming
    the evidence supported an implied finding that the parties “began formulating the plan” in Texas,
    such planning was insufficient as jurisdictional contacts. Id. at 888. Furthermore, the evidence did
    not indicate that the Mafco defendants’ contacts with Texas involved any effort to get “extensive
    business in or from the forum state.” Id. at 889.
    Ultimately, the Supreme Court of Texas concluded that in “negotiating, executing, and
    carrying out the settlement agreement, the Mafco defendants did not seek to do business in Texas,
    commit a tort in Texas, or allegedly cause injury to Pepsi in Texas.” Id. at 890. And it further
    noted, “to the extent the Mafco defendants purposefully directed activities toward Texas, Pepsi’s
    causes of action [did] not arise from those contacts.” Id.
    13
    B. Moki Mac River Expeditions v. Drugg
    In Moki Mac, Texas-resident plaintiffs were the parents of thirteen-year-old Andy Drugg,
    a boy who died in Arizona while on a river-rafting trip with Moki Mac River Expeditions, a Utah-
    based river-rafting outfitter. Moki Mac, 221 S.W.3d at 573. The Druggs learned of Moki Mac’s
    excursions through another Texas resident who had contacted the company regarding a rafting trip.
    Id. The fellow Texas-resident was placed on the computerized mailing list to automatically receive
    a brochure for the upcoming season. Id. Moki Mac sent two brochures detailing pricing and
    schedules for upcoming excursions, which were shared with the Druggs’ son. Id. The Druggs
    corresponded with representatives of Moki Mac before sending their son on the rafting trip. Id.
    Moki Mac sent the Druggs a letter confirming payment along with an acknowledgment-of-risk and
    release form, which was signed in Texas by Betsy Drugg and her son and returned to Moki Mac.
    Id.
    The Druggs sued Moki Mac in Texas for wrongful death based on Moki Mac’s negligence
    and for intentional and negligent misrepresentation. Id. The Druggs asserted that on the second
    day of the trip:
    Moki Mac guides led the group up an incline on a trail that narrowed around and
    was obstructed by a large boulder. The guides were positioned at the head and rear
    of the group, but no guide was present near the boulder. As Andy attempted to
    negotiate the boulder-blocked path, requiring him to lean back while attempting to
    cross a very narrow ledge, he fell backwards approximately fifty-five feet and was
    fatally injured.
    Id. The trial court denied Moki Mac’s special appearance and the Dallas Court of Appeals
    affirmed. Id.
    The Supreme Court of Texas found the operative facts of plaintiffs’ claims principally
    concerned the Moki Mac guides’ conduct while on the hiking expedition, and whether they
    exercised reasonable care in supervising their thirteen-year-old son. Id. at 585. Such acts, the Court
    14
    found, had no substantial connection to Moki Mac’s promotional activities in Texas. Id. Instead,
    the Court noted that Moki Mac’s promotional activities of sending brochures to Texas, although
    they constituted numerous contacts satisfying purposeful availment, were “simply too attenuated
    to satisfy specific jurisdiction’s due process concerns.” Id. at 588. The Court held the injuries for
    which the plaintiffs sought recovery, based on the death of their son while on the hiking trail, did
    not have a substantial connection to the nonresident defendant’s contacts with Texas, nor its
    promotional activities in the state. Id.
    Based on guidance gleaned from M&F Worldwide Corp. and Moki Mac, we turn next to
    the jurisdictional inquiry of this case.
    C. Analysis
    Axial asserts that EMO Trans established minimum contacts with Texas through its
    operation of a cargo logistics business. It asserts that EMO Trans: (1) maintains three offices within
    Texas, (2) has 38 employees located in Texas, and (3) derives business from Texas. Axial contends
    that because EMO Trans maintained such offices in the state, it has clearly demonstrated that EMO
    Trans purposefully availed itself of the privilege of conducting activities in the state and of being
    subject to specific jurisdiction. More specifically, Axial alleges EMO Trans made multiple
    assurances and representations in Texas for purposes of furthering its Texas business.
    As an initial matter, EMO Trans asserts that Axial’s attempt to merge EMO Trans with
    Empresa, as if the two are related and may be treated as the same corporate entity, is nothing more
    than “litigation flare.” EMO Trans asserts the record reflects that Empresa has no relation to EMO
    Trans; thus, the two entities are separate. Harlin unequivocally testified that “EMO Trans has no
    corporate ownership, no corporate affiliation, or other interest in, and is not otherwise affiliated
    whatsoever with [Empresa Logisticos].” Axial gave no proof contradicting those assertions nor
    15
    supporting its view that EMO Trans and Empresa are related companies. More than conclusory
    references are needed to establish a corporate relationship between two entities such that they may
    be treated as if they are the same corporate entity. See PHC-Minden, L.P. v. Kimberly-Clark Corp.,
    
    235 S.W.3d 163
    , 172 (Tex. 2007) (holding that the contacts of distinct legal entities, including
    parents and subsidiaries, must be assessed separately for jurisdictional purposes unless the
    corporate veil is pierced). Thus, more than Axial’s conclusory reference to Empresa as being EMO
    Trans’ “Mexican operations” is needed to establish a corporate relationship between the two
    entities such that we may treat them as if they are the same corporate entity. Based on the record
    provided, we hold that any alleged connection between EMO Trans and Empresa is insufficient
    alone to subject EMO Trans to Texas courts’ jurisdiction.
    Turning to EMO Trans’ relevant contacts with Texas, specific jurisdiction requires us to
    analyze jurisdictional contacts “on a claim-by-claim basis” to determine whether each claim arises
    out of or is related to the defendant’s minimum contacts. Moncrief Oil, 414 S.W.3d at 150; see
    also Kelly, 301 S.W.3d at 660. However, in the event all claims arise from the same forum contacts,
    a separate analysis of each claim is not required. Moncrief Oil, 414 S.W.3d at 150-151. Axial
    contends: (1) its sole owner had at least a dozen meetings with executives of EMO Trans regarding
    the “Mexican lease space,” all taking place at an El Paso Starbucks; (2) Axial’s assistant met with
    EMO Trans’ El Paso representative, on several occasions, around other parts of El Paso, and (3)
    multiple phone calls and emails took place between Axial and EMO Trans’ Houston based office.
    Axial claims the alleged communications included representations to pay rent owed by Empresa,
    assurances that late payments would be made, and apologies for lack of payments. Also, it asserts
    all communications were made with EMO Trans’ Texas representatives and the Houston office
    was a point of contact for issues regarding Lease 1 and with the parties’ executing Lease 2. Lastly,
    16
    Axial claims all outstanding payments of Lease 1 were resolved by the El Paso and Houston
    offices. In short, Axial asserts “the contract at issue” was offered and accepted in Texas, promises
    and assurances were made in Texas, and “fraudulent statement and omissions” were made in
    Texas. Although Axial asserts EMO Trans made “fraudulent statements” during the meetings and
    communications, it further acknowledges that its claims did not arise until 2018, when EMO Trans
    denied payment on the judgment Axial had obtained against Empresa.
    EMO Trans first denies any alleged assurances were made to Axial by EMO Trans and it
    further denies it entered into any purported agreement to pay rent for the leased warehouse in
    Mexico. But, even taking all of Axial’s allegations as true, EMO Trans asserts that such claims
    fail to establish minimum contacts for the purposes of conferring personal jurisdiction in Texas
    because: (1) the alleged communications are irrelevant to the current dispute because many of the
    communications occurred during the term of Lease 1, such that any missed rent payments were
    since resolved and do not relate in any way to issues pertaining to Lease 2; (2) any alleged
    statements made during the term of Lease 2, occurring between March 2012 and May 2012,
    concerned missed payments that were ultimately resolved; (3) there are no allegations of any
    promises or assurances from EMO Trans concerning non-payment in 2014 or thereafter, which is
    the basis for the money judgment obtained in the Mexican lawsuit against Empresa; (4) the
    communications and meetings were fortuitous, random, and were all arranged by Axial; and (5)
    EMO Trans did not seek to gain any benefit, advantage, or profit by the meetings and
    communications with Axial.
    The United States Supreme Court has provided that to determine whether a nonresident
    defendant purposefully establishes minimum contacts within the forum through a “contract,” we
    must evaluate the factors of “prior negotiations and contemplated future consequences, along with
    17
    the terms of the contract and the parties’ actual course of dealing[.]” Burger King Corp. v.
    Rudzewicz, 
    471 U.S. 462
    , 463 (1985). Also, it will not be sufficient to establish purposeful
    availment that a nonresident defendant contracted with a Texas company when there is no
    allegation of acts constituting a breach of the contract in Texas or allegations that the contract
    required the nonresident defendant to conduct activities in Texas. Info. Servs. Group, Inc. v.
    Rawlinson, 
    302 S.W.3d 392
    , 400 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
    Here, Axial has not shown how merely reaching an agreement in Texas constitutes
    minimum contacts when there is no allegation that the terms of the agreement required conduct to
    be performed in Texas or that EMO Trans committed a breach in Texas. Similar to those facts in
    M&F Worldwide Corp., Axial makes no allegations that EMO Trans committed a tort against a
    Texas resident, a Texas entity, or that it’s claims involved Texas property. M & F Worldwide
    Corp., 512 S.W.3d at 889. We will assume the evidence supports an implied finding that the parties
    entered into an agreement. However, the evidence supporting that finding—the Texas meetings
    and phone calls whereby EMO Trans made promises and assurances to “back” Empresa’s financial
    obligation—is insufficient to constitute minimum contacts with Texas. Id. at 887-90 (finding
    nonresident defendants’ actions of negotiating, executing and carrying out a settlement agreement
    that was formulated in Texas was insufficient jurisdictional contacts when nonresident defendants
    did not seek to do business in Texas, commit a tort in Texas, or allegedly cause injury to plaintiff
    in Texas). Any effect of such agreement would be related to conduct that occurred and would occur
    outside of Texas, regarding the renting of space in a warehouse located in Mexico. Axial’s
    allegation of meetings and verbal assurances occurring in Texas are insufficient to establish
    minimum contacts by EMO Trans with the forum state. Cf. Moncrief Oil, 414 S.W.3d at 153
    (holding the trial court had specific jurisdiction over a nonresident defendant that attended
    18
    meetings in Texas with a Texas corporation and accepted trade secrets created in Texas regarding
    a potential joint venture in Texas with a Texas corporation). Said differently, the communications
    in Texas could have occurred anywhere and yet the basis of Axial’s claim would remain the same.
    Further, to the extent EMO Trans does conduct its cargo logistics business in Texas,
    Axial’s causes of action do not arise from those contacts. As shown in Moki Mac, purposeful
    availment on its own will not support the exercise of specific jurisdiction. Moki Mac, 221 S.W.3d
    at 579. In addition to such purposefulness, there must be a substantial connection between the
    nonresident defendant’s contacts with the forum-state and the operative facts of the litigation. Moki
    Mac, 221 S.W.3d at 585. The operative facts of the litigation are “those facts that would be the
    focus of the trial.” Id. at 588. Here, the operative facts of Axial’s suit concern whether a valid
    contract existed between the parties, or alternatively, whether EMO Trans and Empresa are
    connected, and whether promises and assurances were made by EMO Trans that Axial relied upon
    to its detriment. We can predict the evidence at trial would focus on the terms of any lease
    agreement between the parties, the parties’ connection to it, and any evidence to prove EMO Trans’
    agreement to back Empresa’s lease obligations. Based on evidence of this nature, a trier-of-fact
    would be asked to make credibility determinations and determine whether EMO Trans breached a
    valid contract or made fraudulent assurances related thereto.
    As in Moki Mac, we find no connection between the operative facts of Axial’s litigation
    and EMO Trans’ purposeful contacts with Texas. Moki Mac, 221 S.W.3d at 588. Axial fails to
    show a substantial connection between EMO Trans’ cargo logistics business in Texas and the
    alleged claims of breach of contract and fraudulent assurances and promises, which principally
    concern entities and property located in Mexico. See, e.g., Brocail v. Anderson, 
    132 S.W.3d 552
    ,
    564 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (holding alleged tort arose from the
    19
    exercise of medical judgment from defendant doctor in prescribing course of physical therapy in
    Michigan, and not from the doctor’s minimum contacts with Texas through communicating that
    prescription to Texas); Kelly v. Syria Shell Petroleum Dev. B.V., 
    213 F.3d 841
    , 844, 855 (5th Cir.
    2000) (holding that although there were minimum contacts with Texas through a Syrian oil
    company signing a contract for the killed workers’ services, there was no specific jurisdiction
    when the plaintiff’s claims did not arise out of those contacts but from alleged tortious acts
    committed in Syria); see also Burton v. Honeywell Int’l Inc., 
    614 S.W.3d 271
    , 283 (Tex. App.—
    Tyler 2020, no pet.) (holding no substantial connection between defendant’s purposeful contacts
    with Texas—maintaining offices, employees, and marketing activities in Texas—and plaintiff’s
    allegations arising from plane crash in Texas when the products liability claim did not relate to the
    corporations’ business activities in Texas); Megadrill Servs. Ltd. v. Brighouse, 
    556 S.W.3d 490
    ,
    500 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (holding plaintiff’s alleged slip and fall
    accident did not arise out of or relate to the work performed in Texas to refurbish the rig and
    therefore there was no specific jurisdiction over defendants); Wilco Farmers v. Carter, 
    558 S.W.3d 197
    , 206 (Tex. App.—Texarkana 2018, no pet.) (holding the operative facts of plaintiff’s claims
    against defendant, whether defendant exercised reasonable care in unloading trucks, training, and
    supervising employees in Oregon, had no substantial connection to defendant’s contacts with
    Texas, having a twenty-year business relationship with business in ordering goods from Texas).4
    4
    Lastly, we note EMO Trans also asserts an argument that Axial cannot force its claims into the broad language of
    the Texas long-arm statute. First, it asserts Axial’s breach of contract claims will not confer personal jurisdiction
    because the statute “extends over a nonresident who does business in Texas, but only 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,’”
    and, therefore, both requirements are missing because Axial is not a Texas resident and any performance was tied to
    Mexico. Also, EMO Trans asserts Axial’s fraud claims are time barred. We note, however, that it is well recognized
    that the broad language of Texas’ long-arm statute will extend personal jurisdiction only “as far as the federal
    constitution requirements of due process will permit.” BMC Software, 83 S.W.3d at 795 (quoting U-Anchor Adver.,
    Inc. v. Burt, 
    553 S.W.2d 760
    , 762 (Tex. 1977)). Because we conclude the trial court’s exercise of personal jurisdiction
    over EMO Trans does not comport with the federal due process limitations, we need not further address EMO Trans’
    arguments regarding the inapplicability of the long-arm statute to the facts of this case.
    20
    Because we find that EMO Trans lacks the minimum contacts with Texas required to
    exercise specific personal jurisdiction over Axial’s causes of action, it is not necessary for us to
    determine whether the exercise of jurisdiction would offend traditional notions of fair play or
    substantial justice. Kelly, 301 S.W.3d at 661 n.10 (“Because we decide this case based on the lack
    of alleged minimum contacts with Texas, we do not discuss the fair-play-and-substantial-justice
    prong of personal jurisdiction.”); see also TEX. R. APP. P. 47.1.
    Accordingly, we sustain issue two.
    VI. REMAND AND JURISDICTIONAL DISCOVERY
    Axial requests in its briefing, in the event we find the trial court erred in denying the special
    appearance, that we remand the case to the trial court to allow additional time for jurisdictional
    discovery. See TEX. R. CIV. P. 120a(3) (governing jurisdictional discovery); see also Lamar v.
    Poncon, 
    305 S.W.3d 130
    , 139 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“Rule 120a(3)
    provides that a trial court may order a continuance to permit discovery to be had or depositions to
    be taken, or make any other order as is just, where it appears from the affidavits of a party opposing
    a special appearance that he cannot, for reasons stated in the affidavit, present facts essential to
    justify its opposition to the special appearance.”). “Jurisdictional discovery can be a vital part of
    resolving a special appearance.” See Lamar, 
    305 S.W.3d at
    139 (citing Exito Elecs. Co., Ltd. v.
    Trejo, 
    142 S.W.3d 302
    , 307 (Tex. 2004)).
    EMO Trans asserts, however, that jurisdictional discovery will not change any facts.
    Specifically, EMO Trans argues that most of Axial’s discovery requests were aimed to support its
    argument on general jurisdiction, which EMO Trans further contends, Axial somewhat abandoned
    on appeal. Moreover, EMO Trans asserts any requests relevant to specific jurisdiction “covered
    pre-2014 meetings, at which Axial would have been present, and communications, of which Axial
    21
    initiated, and alleged lease payments made in Juarez by EMO Trans that EMO Trans has already
    indicated do not exist.” EMO Trans urges any further discovery would not change any facts
    because EMO Trans has already negated any allegations that such requests seek to show, and
    evidence of payments made by EMO Trans simply do not exist.
    Under these circumstances, we agree it would be inappropriate to remand to the trial court
    to consider whether to allow additional jurisdictional discovery. Axial does not, at trial or on
    appeal, make a request for discovery that would reveal the existence of sufficient minimum
    contacts. Rather, its requested discovery would simply result in, if any existed, evidence of EMO
    Trans’ agreement to pay rent obligations of Empresa for a warehouse located in Mexico. This
    evidence, as discussed above, would not legally meet the due process standard for establishing
    minimum contacts in Texas.
    VII.    CONCLUSION
    Because we hold that neither general nor specific jurisdiction exists over EMO Trans as a
    matter of law, we conclude the trial court erred in denying EMO Trans’ special appearance. We
    reverse the trial court’s order denying EMO Trans’ special appearance and remand the case for
    severance and dismissal of the claims against EMO Trans.
    GINA M. PALAFOX, Justice
    October 12, 2022
    Before Rodriguez, C.J., Palafox, and Alley, JJ.
    22