Dean Kawaja and Susan Kawaja v. Crawford's Auto Repair , 2013 Tex. App. LEXIS 11797 ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00089-CV
____________________
DEAN KAWAJA AND SUSAN KAWAJA, Appellants
V.
CRAWFORD’S AUTO REPAIR, Appellee
_______________________________________________________ ______________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-189,465
________________________________________________________ _____________
OPINION
Following a review of the record in this appeal, we conclude the trial court
did not have jurisdiction over defendant Crawford’s Auto Repair. We therefore
affirm the dismissal order.
BACKGROUND
Selma Duff drove her car to Georgia. In Georgia, Crawford’s Auto Repair
put a new engine in the vehicle. Two and one-half months after the new engine
was installed, Selma’s son was driving the vehicle in Texas when a wheel
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assembly detached from the vehicle. The wheel rolled across the median of the
freeway and struck an oncoming vehicle occupied by Dean Kawaja and Susan
Kawaja.
The Kawajas sued Crawford’s Auto Repair, among others, and pleaded both
specific and general jurisdiction. Crawford’s Auto Repair filed a special
appearance. See Tex. R. Civ. P. 120a. The trial court dismissed the claims against
that defendant. The Kawajas filed this appeal.
STANDARD OF REVIEW
Whether a trial court has personal jurisdiction over a defendant is a question
of law reviewed de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d
789, 794-95 (Tex. 2002). The plaintiff has the initial burden of pleading sufficient
allegations to bring a nonresident defendant within the jurisdiction of a Texas
court. Id. at 793. The defendant must then negate all jurisdictional bases. Id.
JURISDICTION
A trial court has personal jurisdiction over a nonresident when the exercise
of jurisdiction is authorized by statute and is consistent with due process. Spir Star
AG v. Kimich, 310 S.W.3d 868, 872 (Tex. 2010); see also Tex. Civ. Prac. & Rem.
Code Ann. § 17.042 (West 2008) (Texas long-arm statute). The defendant must
have established minimum contacts with the forum state, and the assertion of
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jurisdiction must comport with traditional notions of substantial justice and fair
play. Zinc Nacional, S.A. v. Bouché Trucking, Inc., 308 S.W.3d 395, 397 (Tex.
2010). The minimum-contacts analysis requires “‘some act by which the defendant
purposefully avails itself of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws.’” Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (quoting Hanson
v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). The focus is
on the defendant’s activities and expectations. Am. Type Culture Collection, Inc. v.
Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
The defendant’s contacts may give rise to either general jurisdiction or
specific jurisdiction. See Zinc Nacional, 308 S.W.3d at 397. For a trial court to
have general jurisdiction over a nonresident defendant, the defendant’s contacts
with the forum must be systematic and continuous. Spir Star AG, 310 S.W.3d at
872. Under general jurisdiction, there must be a showing that the defendant
conducted substantial activities within the state. CSR Ltd. v. Link, 925 S.W.2d 591,
595 (Tex. 1996).
Specific jurisdiction arises when the defendant purposefully avails itself of
conducting activities in the forum state, and the cause of action arises from or is
related to those contacts or activities. Retamco Operating, Inc. v. Republic Drilling
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Co., 278 S.W.3d 333, 338 (Tex. 2009) (citing Burger King Corp. v. Rudzewicz,
471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)); Michiana Easy Livin’
Country, Inc., 168 S.W.3d at 784 (Purposeful availment is the touchstone of
jurisdictional due process.). Specific jurisdiction focuses on the relationship of the
forum, the defendant, and the litigation. Retamco Operating, 278 S.W.3d at 338.
The contacts must be such that the defendant “should reasonably anticipate being
haled into court” in Texas. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).
ANALYSIS
As part of its jurisdiction claim, the Kawajas contend that Crawford’s Auto
Repair operates a website for soliciting business. The Kawajas also rely on the
car’s Texas registration and Texas license plates.
The affidavit of John Crawford states that he is the owner and operator of
Crawford’s Auto Repair in Marietta, Georgia, that he is not a resident of Texas,
and that Crawford’s Auto Repair has never done business in Texas. Crawford
states that neither he nor the business has ever purposefully put a product in the
stream of commerce in Texas, designed a product for the Texas market, advertised
in Texas, or established channels of regular communication with Texas customers.
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Purposeful availment requires that a defendant seek some advantage, benefit,
or profit by availing itself of the jurisdiction. Spir Star AG, 310 S.W.3d at 873. A
seller who reaches beyond one state and creates continuing relationships with
residents of another state may be subject to the jurisdiction of the latter in suits
arising from those activities. Id. (citing Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 575 (Tex. 2007)).
Although the accident occurred in Texas and the car likely had Texas
registration and plates, there is no evidence that Crawford’s Auto Repair advertised
specifically in Texas or had a business in Texas. All of the defendant’s activities
occurred in Georgia. The Kawajas did not present any evidence that the website is
anything other than a passive one. See Buckeye Aviation, L.L.C. v. Barrett
Performance Aircraft, Inc., No. 09-10-00247-CV, 2011 Tex. App. LEXIS 4506, at
**19-22 (Tex. App.—Beaumont June 16, 2011, pet. denied).
In World-Wide Volkswagen, a New York car dealership was sued in state
court in Oklahoma by a New York resident. The car was bought from the
defendant dealership in New York and driven by the plaintiff to Oklahoma, where
the car was involved in a traffic accident. See World-Wide Volkswagen, 444 U.S. at
288-89. The Supreme Court explained,
[T]he foreseeability that is critical to due process analysis is not the
mere likelihood that a product will find its way into the forum State.
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Rather, it is that the defendant’s conduct and connection with the
forum State are such that [the defendant] should reasonably anticipate
being haled into court there.
Id. at 297. Foreseeably, purchasers of automobiles may take them to another state,
but the mere unilateral activity of the party claiming some relationship with a
nonresident defendant cannot satisfy the requirement of contact with the forum
state. Id. at 298; see also Cox v. Generac Power Sys., No. 2:08-cv-04278-NKL,
2009 U.S. Dist. LEXIS 54157 (W.D. Mo. June 15, 2009); IRA Res., Inc. v. Griego,
221 S.W.3d 592, 599 (Tex. 2007) (“The test is minimum contacts, not de minimus
contacts[.]”).
CONCLUSION
Even if Crawford or his employees noticed the car’s Texas license plates, the
fact that the car was driven to Texas by Selma’s son does not establish that
Crawford’s Auto Repair purposely availed itself of Texas laws. In World-Wide
Volkswagen, Justice White explained:
If foreseeability were the criterion, a local California tire retailer could
be forced to defend in Pennsylvania when a blowout occurs there; a
Wisconsin seller of a defective automobile jack could be haled before
a distant court for damage caused in New Jersey; or a Florida soft-
drink concessionaire could be summoned to Alaska to account for
injuries happening there. Every seller of chattels would in effect
appoint the chattel his agent for service of process. His amenability to
suit would travel with the chattel.
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Id. at 296 (internal citations omitted). Crawford’s Auto Repair did not target Texas
as a market. The company did not have systematic and continuous contacts with
Texas. There are no facts to indicate that Crawford’s Auto Repair purposefully
directed its vehicle repair service activities toward Texas residents, or that the
Kawajas’ claims arose out of any activities by Crawford’s Auto Repair in Texas.
We overrule the Kawajas’ issues. The trial court’s order is affirmed.
AFFIRMED.
______________________________
DAVID GAULTNEY
Justice
Submitted on July 11, 2013
Opinion Delivered September 19, 2013
Before Gaultney, Kreger, and Horton, JJ.
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