Milyn Canada, Individually and on behalf of her minor child, S.C v. Talen's Marine & Fuel, Inc. and Barry Miller--Appeal from 61st District Court of Harris County

Affirmed and Memorandum Opinion filed September 27, 2007

Affirmed and Memorandum Opinion filed September 27, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-01143-CV

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MILYN CANADA, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, S.C., Appellant

V.

TALEN=S MARINE & FUEL, INC. AND BARRY MILLER, Appellees

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2005-59031

M E M O R A N D U M O P I N I O N

In this interlocutory appeal,[1] appellant Milyn Canada, individually and on behalf of her minor child, S. C., appeal the trial court=s order granting appellees, Talen=s Marine & Fuel , Inc. (ATalen@) and Barry Miller=s special appearances. In a single issue, appellant argues the trial court erred when it granted appellees= special appearances as appellees= contacts with Texas are sufficient to give the trial court personal jurisdiction over appellees. Finding no error, we affirm.

Factual and Procedural Background

Before we can lay out the facts of this appeal, we must first address a preliminary issue of exactly what evidence is in the record on appeal. Appellant attached three documents in an appendix to her brief to this court that are not found in the appellate record. We may not consider exhibits or appendices attached to briefs that are not part of the appellate record. Ramex Construction Co. v. Tamcon Services, Inc., 29 S.W.3d 135, 138 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Therefore, we may not consider these documents in our review of the trial court=s order granting appellees= special appearance. With that introduction, we examine the facts underlying this appeal.

On July 15, 2005, appellant was driving home to Houston on Interstate 10 in Lake Charles, Louisiana when her vehicle was involved in a collision with one of Talen=s delivery trucks. Talen=s employee, Barry Miller, a Louisiana resident, was the driver of the truck. At the time of the collision, Miller was traveling to Westlake, Louisiana to pick up fuel for a delivery to a Talen customer in Jeanerette, Louisiana.

Talen is a Louisiana corporation with its principal place of business in Lake Arthur, Louisiana. Miller is a resident of Louisiana. Talen does not have a permanent office in Texas, does not have a Texas bank account, and does not own property in Texas. Talen contracts with its business customers, all of which have their principal places of business in Louisiana, to deliver fuel to locations designated by Talen=s customers. Talen admits that some of those deliveries are to locations in Texas. According to Talen, these deliveries are minimal, comprising one percent or less of Talen=s monthly fuel deliveries. Talen maintains a passive website in that it is used solely for advertising and does not allow the exchange of information between Talen and potential customers. On this website, Talen advertises it is a member of the TAAA, which appellant suggests is the acronym for the Texas Agricultural Aviation Association. In addition, Talen=s website advertises that it Aprovides fuel delivery services to Louisiana, Mississippi, Texas, and Alabama using it=s [sic] own fleet of 18 wheelers and bobtails@ and offers free delivery to all of Louisiana and southeast Texas.

Appellant filed suit against appellees in Harris County, Texas. Appellees filed special appearances objecting to the trial court asserting personal jurisdiction over them, which the trial court granted. This interlocutory appeal followed.

Discussion

A. Standard of Review

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the personal jurisdiction of a Texas court. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). A defendant challenging the court=s assertion of personal jurisdiction must negate all jurisdictional bases. Id.

Whether a court has personal jurisdiction over a defendant is a question of law, which we review de novo. Id. at 794. Frequently when deciding a special appearance, a trial court must resolve questions of fact before deciding the jurisdiction question. Id. When, as here, a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. Id. at 795. A reviewing court must affirm if the judgment can be upheld on any legal theory supported by the evidence. Minucci v. Sogevalor, S. A., 14 S.W.3d 790, 794 (Tex. App.CHouston [1st Dist.] 2000, no pet.).

B. In Personam Jurisdiction

The Texas long-arm statute governs Texas courts= exercise of jurisdiction over nonresident defendants. See Tex. Civ. Prac. & Rem. Code Ann. '17.041B.045 (Vernon 1997 & Supp. 2006). That statute permits Texas courts to exercise jurisdiction over nonresident defendants doing business in the state of Texas. Tex. Civ. Prac. & Rem. Code Ann. ' 17.042. The broad language of section 17.42 extends Texas courts= personal jurisdiction as far as the federal constitutional requirements of due process will permit. BMC Software, 83 S.W.3d at 795. Because the long-arm statute=s concept of Adoing business@ extends as far as federal due process will allow, any activity or contact which satisfies due process constitutes doing business, and any contact which does not satisfy due process does not constitute doing business, and we need not analyze the Adoing business@ requirement separate from the due process requirement. Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 98 (Tex. App.CHouston [14th Dist.] 1995, writ denied). To determine whether the assertion of personal jurisdiction is consistent with the requirements of due process, we rely on precedent from the United States Supreme Court and other federal courts, as well as Texas decisions. BMC Software, 83 S.W.3d at 795.

Personal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. Id. (citing Int=l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). The purpose of the minimum contacts analysis is to protect the defendant from being haled into court when its relationship with Texas is too attenuated to support jurisdiction. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The minimum contacts analysis requires that a defendant Apurposefully avail@himself of the privilege of conducting activities within the state of Texas, thus invoking the benefits and protections of Texas law. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). Where the defendant has deliberately created continuing obligations between himself and residents of the forum state, he manifestly has availed himself of the privilege of conducting business there. Burger King, 471 U.S. at 475B76, 105 S. Ct. at 2184.

A defendant is subject to personal jurisdiction based on his own purposeful activity and not on the unilateral acts of a third party. Michiana Easy Livin=Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005). Therefore, it is only the defendant=s contacts with the forum that count when determining whether he has purposefully availed himself of the privilege of conducting business in the state of Texas. Id. In addition, the acts relied upon must be Apurposeful@ rather than fortuitous. Id. Also, a defendant must seek some benefit, advantage, or profit by Aavailing@ himself of the jurisdiction. Id. It is the quality and the nature of the defendant=s contacts, rather than the quantity, that is important to the minimum contacts analysis. American Type Culture, 83 S.W.3d at 806. Random, isolated, or fortuitous contacts with the forum state are insufficient to confer jurisdiction. Michiana, 168 S.W.3d at 785.

Personal jurisdiction exists if the nonresident defendant=s minimum contacts give rise to either general or specific jurisdiction. BMC Software, 83 S.W.3d at 795. General jurisdiction is present when the defendant=s contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. Id. at 796. Specific jurisdiction is established if the cause of action arises from the defendant=s contacts with the forum. Id.

C. There is No Specific Jurisdiction Over Appellees

Appellant appears to argue that the facts of this case justify a Texas court exercising specific jurisdiction over appellees. However, despite appellant=s suggestion that the collision underlying this lawsuit occurred Anear the Texas/Louisiana border,@ the facts regarding the location of the collision are uncontested. The collision occurred in Lake Charles, Louisiana. It is also uncontested that, when the collision occurred, Miller was en route to a Louisiana location to pick up fuel to deliver to another Louisiana location. Specific jurisdiction is established only if the cause of action arises from the defendant=s contacts with the forum. Id. That is not the case here. Therefore, under the facts of this case, a Texas court may not exercise specific jurisdiction over appellees.

D. There is No General Jurisdiction Over Appellees

1. Barry Miller

General jurisdiction is present when the defendant=s contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. Id. There is no evidence in the record demonstrating that Miller, a Louisiana resident driving a truck in Louisiana for a Louisiana corporation, had any contacts with Texas. Therefore, there is no general jurisdiction over Miller.

 2. Talen=s Marine & Fuel , Inc.

While Talen admits to isolated deliveries into Texas, these contacts are insufficient to support general jurisdiction. See Reyes v. Marine Drilling Companies, Inc., 944 S.W.2d 401, 404B05 (Tex. App.CHouston [14th Dist.] 1997, no writ) (affirming a trial court=s granting of a special appearance and holding that (1) purchasing $183 million in goods from 471 different persons and companies in Texas; (2) purchasing more than $63 million in products from a single Texas company; (3) advertising in five Texas periodicals for employees to work in Mississippi; (4) selling over $800,000.00 worth of scrap metal to Texas companies for delivery in Mississippi; (5) sending more than two hundred representatives into Texas to visit potential vendors and/or to review equipment and material being sold to Ingalls, the Mississippi defendant; are insufficient to establish general jurisdiction over Ingalls). The only evidence in the appellate record establishes that Talen=s Texas deliveries were at the request of Talen=s Louisiana customers and were no more than random, isolated, or fortuitous contacts with Texas and thus are insufficient to confer jurisdiction. See Michiana, 168 S.W.3d at 785.

In addition, based on the record before us, Talen=s membership in the TAAA is insufficient to confer general jurisdiction. There is nothing in the appellate record establishing the actual name of the organization and, more importantly, its purpose. Therefore, the fact that Talen advertises that it belongs to an organization with the acronym TAAA, is insufficient to establish general jurisdiction.

Appellant also asserts that Talen advertises that it markets lubricants manufactured by ExxonMobil and Chevron, which appellant contends are Texas-based companies, is sufficient to confer general jurisdiction. However, there is no evidence in the record establishing that ExxonMobil and Chevron are actually Texas-based companies or the details of Talen=s marketing of their lubricants. Therefore, the alleged relationships between Talen and ExxonMobil and Chevron, respectively, are insufficient to confer general jurisdiction.

Finally, appellant argues that, by not contesting personal jurisdiction in a lawsuit filed against it in the United States District Court for the Southern District of Texas, Talen has consented to personal jurisdiction in the present suit. However, appellant cites no legal authority which supports this argument. On appeal, an appellant=s brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h). Failure to do so results in waiver of that issue on appeal. Accordingly, because appellant failed to cite legal authority in support of this argument, she has waived this argument on appeal.

As we have determined that the trial court did not err when it found that appellees did not have minimum contacts with Texas sufficient to assume jurisdiction over them, we overrule appellant=s single issue on appeal.[2]

Conclusion

Having overruled appellant=s only issue, we affirm the trial court=s granting of appellees=special appearances.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed September 27, 2007.

Panel consists of Justices Anderson, Fowler, and Frost.

[1] Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(7) (Vernon Supp. 2006).

[2] Because we find appellees= established they did not have minimum contacts with Texas sufficient for a Texas court to assume jurisdiction over them, we need not address whether the assertion of jurisdiction would comport with the notions of fair play and substantial justice. Tex. R. App. P. 47.1.