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 2003-06

Intercarga, S.A. v. Fritz Companies, Inc. German Patricio Ruiz, Cross-Appellee ( 2003 )


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  • Affirmed and Memorandum Opinion filed June 19, 2003

    Affirmed and Memorandum Opinion filed June 19, 2003.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-02-00297-CV

    ____________

     

    INTERCARGA, S.A., Appellant

     

    V.

     

    FRITZ COMPANIES, INC., Appellee/Cross-Appellant

     

    V.

     

    GERMAN PATRICIO RUIZ, Cross-Appellee

     

      

     

    On Appeal from the 334th District Court

    Harris County, Texas

    Trial Court Cause No. 01-32047

     

      

     

    MEMORANDUM  OPINION

    Appellant Intercarga, S.A. appeals the trial court=s overruling of its special appearance, and appellee/cross-appellant Fritz Companies, Inc. appeals the trial court=s sustaining of cross-appellee German Patricio Ruiz=s special appearance.  We affirm the trial court=s order.

                                                                                 


    I.  Factual and Procedural Background

    In 1997 Arco Oriente, Inc., n/k/a Agip Oil Ecuador B.V. (“Arco”) was looking for a freight forwarder in the United States to handle transportation of oil equipment from Houston to Ecuador (“Arco Project”).  Arco invited Fritz and other freight forwarders to bid on the Arco Project and required that these freight forwarders have a local presence in Ecuador to qualify for the project.  Because Fritz did not have an office in Ecuador, it contacted Intercarga to discuss its possible participation in the project. Eventually, Fritz selected Intercarga to be its local presence on the bid for the Arco Project, and Arco accepted the Fritz bid. Intercarga and Arco signed the contract for the Arco Project. Intercarga and Fritz allegedly had a contract regarding their relationship for the Arco Project.  Fritz alleges that under this contract, Fritz would bill Intercarga for its services on the Arco Project.  Intercarga would then bill Arco, collect the payments for these services, and wire transfer these sums to Fritz in San Francisco, California. 

    A dispute arose between Fritz and Intercarga concerning the amount, if any, owed by Intercarga to Fritz.  Fritz filed suit against Intercarga and German Patricio Ruiz, the majority shareholder and former general manager of Intercarga.  Fritz alleged that Intercarga did not pay Fritz for more than $1.7 million dollars worth of services and materials provided by Fritz on the Arco Project.  Fritz asserted claims for sworn account, breach of contract, breach of fiduciary duty, fraud and conversion against Intercarga.  Fritz also asserted that the corporate veil between Intercarga and Ruiz should be pierced because Ruiz allegedly used Intercarga to perpetrate an actual fraud on Fritz and because Intercarga allegedly is the alter ego of Ruiz.

              Intercarga and Ruiz both filed special appearances contesting the trial court=s ability to exercise personal jurisdiction over them.  Without conducting an evidentiary hearing, the trial court signed an order sustaining Ruiz=s special appearance and overruling Intercarga=s special appearance.  Intercarga has appealed the overruling of its special appearance, and Fritz has cross-appealed, challenging the trial court=s sustaining of Ruiz=s special appearance.

                                                        II. Standard of Review

    A defendant challenging a Texas court=s personal jurisdiction over it must negate all jurisdictional bases, except that the plaintiff must prove any allegations that seek to pierce the corporate veil of any of the defendants.  BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793B99 (Tex. 2002).  Whether a court has personal jurisdiction over a defendant is a question of law subject to de novo review.  Id. at 794.  However, the trial court frequently must resolve questions of fact before deciding the jurisdiction question.  Id. 

    In this case, the trial court did not issue findings of fact and conclusions of law with its special appearance ruling.  Therefore, all facts necessary to support the judgment and supported by the evidence are implied.   Id. at 795.  Parties may challenge the legal and factual sufficiency of these implied factual findings, and we review the trial court=s legal conclusions de novo.  Id. at 794B95.  In conducting a no-evidence analysis, we review the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001).  If more than a scintilla of evidence exists, it is legally sufficient. Id.  More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact=s existence.  Id. at 782B83.


    When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).  The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment.  Pascouet, 61 S.W.3d at 616.

                                                   III. Analysis and Discussion

    A. Did the trial court err in overruling Intercarga’s special appearance?

     In its sole issue on appeal, Intercarga alleges the trial court erred in overruling its special appearance.  The Texas long-arm statute governs Texas courts= exercise of jurisdiction over nonresident defendants.  See Tex. Civ. Prac. & Rem. Code '' 17.041B .045; BMC Software Belgium, N.V., 83 S.W.3d at 795.  The Texas long-arm statute allows Texas courts to exercise personal jurisdiction “as far as the federal constitutional requirements of due process will permit.”  BMC Software Belgium, N.V., 83 S.W.3d at 795. (quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)).  Thus, we rely on precedent from the United States Supreme Court and other federal courts, as well as Texas decisions, in determining whether a nonresident defendant has shown that exercise of personal jurisdiction over it would violate federal due-process guarantees.  Id.

    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 jurisdiction comports with traditional notions of fair play and substantial justice.  Id.  A nonresident defendant that has “purposefully availed” itself of the privileges and benefits of conducting business in Texas has sufficient contacts to allow Texas courts to exercise personal jurisdiction over the nonresident. Id.  Although not determinative, foreseeability is an important consideration in deciding whether the nonresident defendant has purposefully established “minimum contacts” with Texas.  Id.  The concept of “foreseeability” is implicit in the requirement that there be a “substantial connection” between Intercarga and Texas arising from Intercarga=s conduct purposefully directed toward Texas. See Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex. 1991). However, a defendant should not be subject to a Texas court=s jurisdiction based upon “random,” “fortuitous,” or “attenuated” contacts.  BMC Software Belgium, N.V., 83 S.W.3d at 795.  Because of the unique and onerous burden placed on a party called upon to defend a suit in a foreign legal system, the minimum contacts analysis is particularly important when the defendant is from a different country.  Id.

    The first prong of the personal jurisdiction test is satisfied if the nonresident defendant=s minimum contacts give rise to either specific jurisdiction or general jurisdiction.  Id. Specific jurisdiction exists if the defendant=s alleged liability arises from or is related to an activity conducted within the forum.  Id. at 796.  In a specific jurisdiction analysis, we focus on the relationship among the defendants, the State of Texas, and the litigation.  See Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990).  We consider whether Intercarga purposefully directed its activities to Texas and, if so,  whether Fritz=s claims arose out of or relate to those activities.  Zac Smith & Co., Inc. v. Otis Elevator Co., 734 S.W.2d 662, 663  (Tex. 1987). In contrast, general jurisdiction is present when a defendant=s contacts with Texas are continuous and systematic so that Texas courts may exercise personal jurisdiction over the defendant even if the plaintiff=s claims did not arise from or relate to the defendant=s activities purposefully directed to Texas. See BMC Software Belgium, N.V., 83 S.W.3d at 796.

    In support of its special appearance Intercarga relies on the Second Amended Affidavit of German Patricio Ruiz, which states, among other things:

    $ Intercarga is an Ecuadorean corporation whose principal office is in Ecuador.

    $ Fritz expressed an interest in bidding on the Arco Project and having Intercarga handle the Ecuadorean aspects of the shipping.

    $ In October of 1997, Ruiz traveled on behalf of Intercarga to Tulsa, Oklahoma to meet with Arco=s contractor, Fluor Daniel Williams Brothers and with Fritz personnel to discuss Intercarga=s potential involvement in the local part of the work involved in the proposed bid that Fritz wanted to make on the Arco Project.

    $ In route to Tulsa, Ruiz had to change planes in Miami and then again in Houston, because there were no direct flights from Ecuador to Tulsa.  During Ruiz=s layover in Houston, he spent the night in an area hotel. The next morning he took a flight to Tulsa accompanied by Fernando Reyes of Intercarga and two Fritz employees, Juli Fendley and Paul Garcia.

    $ The evening after the meeting, Ruiz flew from Tulsa to Houston in route to Ecuador, along with Fritz employees.  He took a plane out of Houston the next morning following a brief tour of Fritz=s Houston facilities.  According to Ruiz, there were no business meetings in Houston either before or after the trip to Tulsa.

    $ Arco entered into a written contract with Intercarga both for itself and as Fritz=s representative.  The parties signed this contract in Ecuador.

    $ Under the Arco contract, Fritz shipped Arco=s property from Houston  to Ecuador, and Intercarga did not take possession of this property until it arrived in Ecuador.

    $ To govern the manner in which Fritz and Intercarga would handle payments under the Arco contract, Fritz and Intercarga entered into a separate, oral contract.  All of the terms of that contract were Amade@ in Ecuador.  These terms were agreed upon by Ruiz on behalf of Intercarga and Tony Garcia on behalf of Fritz.

    $ Under the oral contract, Intercarga periodically wired payments to Fritz at its main office in California.

    $ With the exception of one meeting in Houston in February of 2000, all conversations pertaining to performance of the oral contract were handled by telephone calls and principally by emails between Intercarga in Ecuador and Fritz in San Francisco, California or Houston, Texas.

    $ In February of 2000, Ruiz and two Intercarga accountants met in Houston with representatives of Fritz to try to resolve the dispute over billings under the oral contract.  A second dispute resolution meeting took place in Miami in May of 2000.

    $ Intercarga has never done business in Texas.  Intercarga has not entered into any contracts in Texas, including the oral contract with Fritz.  No part of the oral contract between Intercarga and Fritz required performance in Texas or was performed in Texas.

    $ Intercarga has not recruited any employees in Texas.

    $ Intercarga has not done any of the following in Texas: (1) maintained an office or regular place of business; (2) owned or leased any property; (3) had employees residing or regularly traveling to Texas (4) produced, marketed or distributed goods, services or products; (5) had phone listings or mailing addresses; (6) incurred or paid any property taxes; and (7) maintained or designated a registered agent for service of process.

    $ Intercarga has not directed any advertising specifically towards Texas residents, or advertised in any publications that are directed primarily toward Texas residents.

    $ Intercarga has never entered into any contracts with a Texas choice of law or forum selection clause or entered into a contract that requires performance in Texas.

    In his affidavit on behalf of Fritz, Tony Garza stated:

    $ Garcia was manager of Fritz=s Houston office from 1994-2001.

    $ In 1997, Fritz was asked by Arco to bid on the Arco Project under which approximately $350 million dollars worth of oil field equipment  would be transported from its location of manufacture through the seaport of Houston, Texas, and then to locations in Ecuador.

    $ When it was preparing its bid for the Arco Project, Fritz did not have a registered office in Ecuador, so it contacted several potential companies who might be able to assist Fritz with the Arco Project.  As part of this effort, Fritz contacted Intercarga, with whom Fritz had done business in the past.

    $ Fritz told Intercarga that it should send a representative to Houston, Texas, for a face-to-face meeting with Fritz employees so Fritz could determine whether Intercarga had the necessary qualifications and experience to work as part of the Fritz team on the Arco Project.

    $ Fritz met with several companies and ultimately selected Intercarga as a result of its September 8, 1997 meeting with Intercarga in Houston, Texas.

    $ On September 8, 1997, Fritz employee Max Pischel picked up two Intercarga representatives from their hotel in Houston, TexasCPatricio Ruiz, Intercarga=s general manager, and Fernando Reyes, Intercarga=s operations director.  Pischel brought Ruiz and Reyes to Fritz=s office in Houston, Texas.

    $ During the September 8, 1997 meetings, Ruiz and Reyes met for several hours with Fritz employees to discuss Intercarga=s experience and qualification regarding the Arco Project. Garza met with Ruiz during these meetings and discussed Intercarga=s qualifications, Fritz=s project management role, the Houston-based inventory-tracking system to be used on the Arco Project, and Intercarga=s knowledge of the local areas in Ecuador through which the equipment would have to be transported.

    $ During the September 8, 1997 meeting between Ruiz and Garza, Ruiz showed Garza pictures of other equipment Intercarga had transported in Ecuador.  Garza told the Intercarga representatives that Fritz=s Houston office would be command central for this project since the equipment had to move through the Houston seaport and since the inventory-tracking system was based in Houston.

    $ Based on Intercarga=s representations and other information provided  in Houston, Fritz selected Intercarga as the company Fritz would introduce to Arco as part of the Fritz team on September 9, 1997.

    $ On September 9, 1997 Fritz employees flew to Tulsa, Oklahoma, with Ruiz and Reyes, and they all met with Arco and Arco=s contractor Fluor Daniel Williams Brothers for a bid presentation.

    $ On September 10, 1997, in anticipation of getting the Arco Project, Ruiz and Reyes met again in Houston, Texas with Fritz employees and toured Fritz=s export packing facility in Houston regarding project logistics.

    $ From September through December of 1997, Intercarga provided information to Fritz in Houston by telephone and facsimile to be included in the bid to Arco.

    $ On December 12, 1997, Fritz sent its bid to Arco in Ecuador through Intercarga.  On December 15, 1997, Intercarga delivered the bid to Arco and faxed Fritz to notify it that the bid had been delivered.

    $ Fritz and Intercarga agreed that Intercarga, as representative of Fritz, would take the job as “Contractor” and would sign all project related contracts with Arco.  Under this agreement, Fritz would bill Intercarga for its Arco Project services.  Intercarga would then bill Arco, collect the money and wire transfer it to Fritz in San Francisco, California.

    $ On February 10, 1998, Fritz held an Arco Project kick-off meeting in Houston that was attended by Intercarga=s Fernando Reyes by conference call.

    $ On February 27, 1998, Intercarga was formally notified by Arco that Fritz/Intercarga had won the project.

    $ Intercarga signed the contract with Arco.

    $ On July 14, 1998, Fritz held an Arco Project action meeting in Houston, which was attended by Intercarga=s Ruiz and Cecil Calderon by conference call.

    $ On February 16B20, 1999, Fritz held an Arco Project operational issues meeting in Houston that was attended in person by Intercarga=s Cecil Calderon.

    $ From approximately mid 1998 to early 2000, Intercarga routinely communicated with Fritz regarding the Arco Project by email, facsimile, telephone, and the inventory-tracking system that was run on a computer server located in Houston.

    $ On February 29, 2000, Fritz and Intercarga held an Argo Project accounting issues meeting in Houston in an attempt to resolve Intercarga=s failure to pay Fritz money that Fritz claims is owed. This meeting was attended by Ruiz and two Intercarga accountants.

    $ Intercarga=s failure to pay money owed to Fritz caused Fritz employees in Houston to be denied a bonus because of the failure to collect the full amount Fritz claims is owed.

    $ Fritz provided services under the Arco contract from 1998 to 2001.

    The contract that was signed by Arco and Intercarga states that it “is entered into by and between [Arco] and INTERCARGA S. A., a Representative of FRITZ COMPANIES, INC. with offices in Av. Brasil No. 1708 y El Condor, Quito, Ecuador (>Contractor=).”  Under the contract, the “Contractor” has extensive obligations to do all of the following:

    $ manage the transportation of Arco=s goods from vendor facilities to “Contractor=s facility”

    $ manage the transportation, loading, and unloading of Arco goods from “Contractor=s facility” to the point of embarkation

    $ receive Arco=s material at “Contractor=s facility”

    $ perform detailed line item inspection and warehouse such material at “Contractor=s facility” in an area dedicated entirely for Arco material

    $ crate, package, and label Arco material, as specified by Arco.

    The contract designated Ruiz as the Contractor Representative “who shall be responsible for the supervision of all Work performed.”  The contract explicitly anticipates some transportation through Houston by reflecting transportation rates from Houston, among other places.  While the contract does not specify where “Contractor=s facility” is located,  it is not disputed that the Arco materials were all shipped through Fritz=s facility in Houston.  Effective July 1, 1998, Arco and Intercarga signed a document amending the contract for the sixth time.  The signature blocks on both the original contract and the sixth amendment reflect that they were executed by “INTERCARGA S.A.”

    In Ruiz=s original affidavit, he testified that “[i]n November or December, 1997, I traveled on behalf of Intercarga to Houston, Texas to discuss with Fritz Intercarga=s potential involvement in the local part of the work for [Arco].” He later changed this testimony to read as stated above in his amended affidavit. 

    After reviewing the record, we conclude there is sufficient evidence to support the trial court=s implied finding that Intercarga purposefully directed its activities to Texas.  The affidavit of Garza shows that two representatives of Intercarga participated in two business meetings in Houston in 1997 related to the Arco Project and that the first meeting was instrumental in Fritz deciding to involve Intercarga in its bid on the Arco Project.  Garza=s affidavit also shows that, during the first meeting, the Intercarga representatives discussed Intercarga=s experience and qualifications for the Arco Project, Fritz=s project management role, the Houston-based inventory-tracking system to be used on the Arco Project, and the fact that all of Arco=s equipment would be transported through the port of Houston. 


    Intercarga argues that we should not consider these contacts because it claims that they relate to the negotiation of the Arco contract rather than the contract that Fritz is suing on in this case. Indeed, Intercarga goes even further and argues these contacts should be ignored because they pertain to contract formation; whereas Fritz complains in this suit only about contract performance.  The scope of our personal-jurisdiction analysis is not as limited as Intercarga maintains.  To determine whether litigation results from injuries that arise out of or relate to activities Intercarga has purposefully directed to Texas, all of the activities Intercarga has so directed to Texas must be taken into consideration.  See P.V.F., Inc. v. Pro Metals, Inc., 60 S.W.3d 320, 326 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  In our personal-jurisdiction analysis, we are not limited to the contacts directly tied to Intercarga=s alleged breach of contract; rather, we consider the entire sequence of transactions that Intercarga has entered into with Fritz.  See id. at 326B27.  This sequence of events shows that Intercarga purposefully directed its activities to Texas.

    Intercarga came to Houston in an effort to be selected by Fritz for the bid on the Arco Project.  As a result of Intercarga=s activities in Texas, Fritz selected Intercarga, and Intercarga executed the Arco contract.  Only Arco and Intercarga signed the Arco contract.  Except for the obligations imposed on Arco, all of the obligations under the Arco contract are imposed on the “Contractor,” which is defined as “INTERCARGA S.A., a Representative of FRITZ COMPANIES, INC.”[1]  Regarding the Contractor obligations, this contract could be construed as binding only Fritz, both Intercarga and Fritz, or only Intercarga.[2]  In his affidavit, Ruiz states that Intercarga entered into this contract “both for itself and as Fritz=s representative.”  The contract does not state that Intercarga has certain obligations for itself and other obligations only in a representative capacity on behalf of Fritz. If, as Ruiz indicates, both Intercarga and Fritz are liable under the Arco contract, then both corporations would be responsible for performing all of the duties imposed on the Contractor under that contract.  

    The evidence is sufficient to support a finding that Intercarga signed a contract with Arco that imposes extensive obligations on Intercarga to manage the transportation of Arco=s goods from the United States to Ecuador.  Under this contract, millions of dollars worth of Arco=s goods were in fact shipped to Ecuador through Houston.   It is not disputed that, under the Arco contract, Intercarga received the money that is the basis of this suit.  Intercarga contends that it may keep this money, while Fritz asserts that Intercarga must pass it on to Fritz.  Intercarga executed a contract that has a substantial connection to Texas.  See Catlidge v. Hernandez, 9 S.W.3d 341, 347B49 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (finding specific jurisdiction where plaintiffs= suit was based on contracts that had a substantial connection with Texas).  There is also evidence that an Intercarga employee attended an operational-issues meeting in Houston in February of 1999 and that, from the middle of 1998 through 2000, Intercarga routinely communicated with Fritz regarding the Arco Project by email, facsimile, telephone, and the inventory-tracking system that was run on a computer server located in Houston, Texas.  We conclude that Intercarga has purposefully directed its activities to Texas. 

    Based on the facts in this record, we also hold that the evidence is legally and factually sufficient to support an implied finding by the trial court that Fritz=s claims against Intercarga arise out of or relate to these activities of Intercarga.  There is evidence that Intercarga was chosen for the Arco contract as a result of its activities purposefully directed toward Texas.  Intercarga signed the Arco contract, under which  millions of dollars worth of Arco=s goods were transported through and temporarily stored in Houston.  Fritz alleges Arco paid Intercarga more than $1.7 million for transportation services through Houston provided by Fritz and that Intercarga has breached its contract to pay this sum over to Fritz.  Intercarga seeks to separate this alleged contract between Fritz and Intercarga from the Arco contract signed by Intercarga and Arco.  Intercarga asserts that the contacts regarding this separate contract are with Ecuador rather than Texas.  Again, Intercarga cannot remove contacts from our review simply by characterizing them as relating to a different contract than the contract on which Fritz has sued, especially where the evidence shows that both contracts are related to each other.  See P.V.F., Inc., 60 S.W.3d at 326.


    Following a meeting in Houston, Intercarga and Fritz paired up to bid on the Arco Project. Intercarga admits that it signed the Arco contract both for itself and Fritz.  Without reaching the merits, the Arco contract arguably requires Intercarga to provide all of the transportation services, not just those in Ecuador.[3]  Under this contract, the team of Fritz and Intercarga successfully collaborated and transported millions of dollars of Arco=s goods through Houston to Ecuador.  Although there does not appear to be any dispute with Arco, the two team members have disputed how the compensation from the Arco contract should be divided between them.  Based on these facts, we conclude the evidence is sufficient to support an implied finding by the trial court that Fritz=s claims against Intercarga arise out of or relate to the activities that Intercarga purposefully directed to Texas.[4]  See Zac Smith & Co., Inc., 734 S.W.2d at 665B66 (finding personal jurisdiction over defendant that had no physical ties to Texas based on defendant=s execution of a joint-venture agreement outside of Texas whose sole purpose was to build a hotel in Texas, because suit brought by supplier on subcontract was related to the joint venture, even though the contract under which the joint venture was to build the hotel was never performed); Transportacion Especial Autorizada, S.A. de C.V. v. Seguros Comercial America, S.A. de C.V., 978 S.W.2d 716, 719B20 (Tex. App.CAustin 1998, no pet.) (holding that specific jurisdiction existed over  Mexican corporation in suit brought by other Mexican corporation, where defendant issued a bill of lading agreeing to transport goods from Austin to Mexico City even though the defendant only transported the goods from Nuevo Laredo to Mexico City); Fish v. Tandy Corp., 948 S.W.2d 886, 895 (Tex. App.CFort Worth 1997, writ denied) (finding specific jurisdiction where the claims of distributor=s president related to or arose from his negotiations with the manufacturer that included personal visits to Texas and communications to and from Texas).  Therefore, the trial court had specific jurisdiction over Intercarga, and we do not need to address the issue of general jurisdiction.

    After a court finds the minimum contacts necessary to exercise personal jurisdiction over a nonresident defendant, federal due process requires a determination of whether the exercise of that jurisdiction comports with traditional notions of fair play and substantial justice.  See Guardian Royal Exch. Assur., Ltd., 815 S.W.2d at 228.  In deciding this issue, we consider the following factors: (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiff=s interest in obtaining convenient and effective relief, (4) the interstate judicial system=s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id. When the defendant is a resident of another nation, we must also consider (a) the unique burdens placed on the defendant who must defend itself in a foreign legal system, and (b) the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by a state court as well as the federal government=s interest in its foreign-relations policies. Id. at 229. Only in rare cases will the exercise  of personal jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.  Id. at 231.  Intercarga must present a compelling case that the presence of some other considerations would render the exercise of personal jurisdiction unreasonable.  See id. 


    While acknowledging Fritz=s interest in obtaining convenient and effective relief through this suit in Texas, Intercarga asserts that this interest is outweighed by the burden on Intercarga of defending this suit in a foreign legal system and by Texas=s lack of a strong interest in adjudicating this dispute.  Intercarga cites Ruiz=s testimony that it would be unduly burdensome, extremely difficult, very time consuming, and enormously expensive for Intercarga to defend itself in a Texas court.  Ruiz states that Intercarga has no offices or employees in Texas and that litigating in Texas would require hiring Texas attorneys, long-distance telephone calls from Ecuador and Miami (where Ruiz lives), international travel,  and large expenditures of time and money.  As to the interest of Texas in this dispute, Intercarga asserts that Fritz is a California corporation, and Intercarga is an Ecuadorean corporation.  Intercarga argues that Texas has little interest in this dispute because Fritz is not a Texas citizen and because this dispute has no connection with Texas. 


    We conclude that Intercarga has not made a compelling case that the exercise of personal jurisdiction in this dispute would be unreasonable.   Distance alone is usually insufficient to defeat personal jurisdiction because modern transportation and communication have made it less burdensome to defend lawsuits in a state where the defendant engages in economic activity.  Guardian Royal Exch. Assur., Ltd., 815 S.W.2d at 231.  Further, the burden is mitigated by the fact that Ruiz, the majority shareholder and general manager of Intercarga during the time period of the events that gave rise to this dispute, currently lives in Miami, Florida.  Fritz has already taken Ruiz=s deposition in this case in Miami regarding jurisdictional matters.  The record also contains a Rule 11 agreement that, if Intercarga=s special appearance is ultimately overruled, then Intercarga will make a corporate representative available in Miami for a second deposition on the merits of this dispute.  Further, as discussed above, Fritz=s claims arise out of or relate to Intercarga=s activities purposefully directed to Texas. Even presuming that Fritz is not a Texas citizen,[5] the record still shows that Fritz does a significant amount of business in Texas and that Fritz has an office and an export packing facility in Houston.  This dispute relates to the transportation of goods through the port of Houston, an activity in which Texas has a strong interest.  While Texas=s interest would be stronger if Fritz were a Texas citizen, we nonetheless conclude that Fritz=s interest in obtaining convenient and effective relief and Texas=s interest in adjudicating this dispute outweigh the burdens placed on Intercarga by requiring that it defend itself in a foreign legal system in Texas.  See McDermott v. Cronin, 31 S.W.3d 617, 622B23 (Tex. App.CHouston [1st Dist.] 2000, no. pet.) (holding exercise of personal jurisdiction comported with fair play and substantial justice, even though case involved specific jurisdiction, no party was a Texas resident, and defendant was resident of Belize).  After carefully considering all of the relevant factors, we hold the exercise of personal jurisdiction over Intercarga in this case comports with traditional notions of fair play and substantial justice. 

    Accordingly, we overrule Intercarga=s sole issue on appeal.

    B.  Did the trial court err in sustaining Ruiz=s special appearance?

    In its sole issue on cross-appeal, Fritz asserts that the trial court erred when it sustained Ruiz=s special appearance.  Fritz=s petition does not assert claims directly against Ruiz; rather it seeks recovery against Intercarga on various claims and then seeks to pierce the corporate veil between Intercarga and Ruiz so as to recover against Ruiz.  After reviewing the record, we find no evidence in the record to show that Fritz=s piercing-the-corporate-veil allegations arise out of or relate to activities of Ruiz purposefully directed to Texas. Likewise, the evidence supports the trial court=s implied finding that Ruiz has not maintained systematic and continuous contacts with Texas that would give rise to general jurisdiction. See BMC Software Belgium, N.V., 83 S.W.3d at 796. 

    Furthermore, if Fritz seeks to use Intercarga=s contacts with Texas as Ruiz=s contacts, Fritz has the burden to prove that facts exist that would justify piercing the corporate veil.  See id. at 798B99.  There is no evidence in the record to support a finding that Ruiz is the alter ego of Intercarga or to support any other theory for piercing the corporate veil.  See id.  Therefore, the trial court was correct in its implied finding that Fritz did not meet its burden of proof regarding its piercing-the-corporate-veil allegations.  Intercarga=s contacts cannot be counted as Ruiz=s contacts. 


    There is sufficient evidence in the record to support the trial court=s implied findings that Ruiz=s contacts with Texas alone do not show the minimum contacts with Texas necessary under either specific or general jurisdiction. Therefore, the trial court did not err in sustaining Ruiz=s special appearance.  Accordingly, we overrule Fritz=s sole issue on cross-appeal.

    Having overruled Intercarga=s issue on appeal and Fritz=s issue on cross-appeal, we affirm the trial court=s judgment.

     

     

     

     

    /s/        J. Harvey Hudson

    Justice

     

     

     

     

    Judgment rendered and Memorandum Opinion filed June 19, 2003.

    Panel consists of Justices Yates, Anderson, and Hudson.


    [1]  The original Arco contract contains only this definition. The sixth amendment to the original Arco contract defines “Contractor” as “INTERCARGA S.A.” on the signature page and then as “INTERCARGA S.A., a Representative of FRITZ COMPANIES, INC.” in another part of the contract.

    [2]  In determining personal jurisdiction, we examine the jurisdictional facts relating to the parties substantive allegations, without regard to the merits of the substantive allegations. See Zac Smith & Co., Inc., 734 S.W.2d at 666; Baldwin v. Household Intern., Inc., 36 S.W.3d 273, 277 (Tex. App.CHouston [14th Dist.] 2001, no pet.). In deciding this case, we do not attempt to adjudicate the merits of the parties= claims regarding the Arco contract or the contract, if any, between Intercarga and Fritz.

    [3]  We base our analysis on the actions of Intercarga, for example, signing the Arco contract; we do not base our analysis on the actions of Fritz, for example, the fact that Fritz actually performed the transportation services relating to the transport of Arco=s goods through the port of Houston.

    [4]  Intercarga argues that the evidence is not sufficient to support an implied finding of specific jurisdiction and cites U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 763 (Tex. 1977).  We find that this case is not on point here.  In U-Anchor Advertising, Inc, the services contract on which defendant was sued had been solicited, negotiated, and consummated in Oklahoma, and the only contact that defendant had with Texas was mailing six or seven contract payments to plaintiff at its office in Texas. See U-Anchor Advertising, Inc., 553 S.W.2d at 761B63.  These facts are significantly different from those before us today.

    [5]  Fritz is a California corporation; however, the record is unclear as to whether Fritz=s principal place of business is in Texas or elsewhere.  For the purposes of our analysis, we presume that Fritz=s principal place of business is not in Texas.