Los Angeles Chemical Company v. Alicia Acevedo ( 2004 )

  NUMBER 13-03-645-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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LOS ANGELES CHEMICAL COMPANY,                                Appellant,

v.

ALICIA ACEVEDO, ET AL.,                                                Appellees.

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On appeal from the 332nd District Court

of Hidalgo County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Rodriguez

         Appellant, Los Angeles Chemical Company, brings this accelerated interlocutory appeal following the trial court’s denial of its special appearance. By one issue, appellant contends the trial court erred in denying its special appearance and in exercising jurisdiction over appellant. We affirm.

I. FACTS

         As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.II. STANDARD OF REVIEW

         Whether a court has personal jurisdiction over a defendant is a question of law. Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). But in resolving this question of law, a trial court must frequently resolve questions of fact. Id. When, as in this case, a trial court does not issue findings of fact and conclusions of law, all facts necessary to support the judgment and supported by the evidence are implied. BMC Software Belgium, N.V. v. Marchland, 83 S.W.3d 789, 795 (Tex. 2002); Valsangiacomo v. Am. Juice Import, Inc., 35 S.W.3d 201, 205 (Tex. App.–Corpus Christi 2000, no pet.). However, when the appellate record includes the reporter’s and clerk’s records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency. Id.

         The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the personal jurisdiction of the State of Texas. Am. Type Culture Collection, 83 S.W.3d at 807; Jackson v. Kincaid, 122 S.W.3d 440, 445 (Tex. App.–Corpus Christi 2003, no pet. h.). A nonresident defendant filing a special appearance assumes the burden to negate all bases of personal jurisdiction alleged by the plaintiff. Am. Type Culture Collection, 83 S.W.3d at 807; EMI Music Mex., S.A. de C.V. v. Rodriguez, 97 S.W.3d 847, 853 (Tex. App.–Corpus Christi 2003, no pet.). Once the defendant produces credible evidence negating all bases of jurisdiction, the plaintiff bears the ultimate burden to establish that the Texas court has personal jurisdiction over the defendant as a matter of law. M.G.M. Grand Hotel v. Castro, 8 S.W.3d 403, 408 (Tex. App.–Corpus Christi 1999, no pet.).

III. ANALYSIS

         In its sole issue, appellant contends that the trial court erred in denying its special appearance. Specifically, appellant argues that it produced credible evidence negating all bases of jurisdiction, and that appellees failed to meet their burden to establish that the court has jurisdiction over appellant as a matter of law.

         Appellant’s special appearance was filed in response to appellees’ eighth amended petition in which they alleged appellant did business in Texas; that it sold pesticides to the Hayes-Sammons facility from the 1950s until 1967; and that as a result of these sales, appellees suffered both personal injury and property damages. In support of its special appearance, appellant submitted the affidavit of Jeff Miller, its corporate counsel since 1991. This affidavit affirmatively shows Miller’s competence to make an affidavit and provides that the statements of facts set forth in the affidavit are based on his personal knowledge and his review of corporate documents. In regard to appellant’s connections with Texas, he states:

2. L.A. Chemical Company is a California Corporation with offices at 4545 Ardine Street, South Gate, California. L.A. Chemical Company does not now have and has never had offices or agents in the state of Texas. L.A. Chemical Company does not now and never has owned real estate in the state of Texas and maintains no bank accounts in the state of Texas.

3. L.A. Chemical Company’s sales records and database of customers reflect that there are no sales to customers in Texas, including any of the Hayes-Sammons et al defendants as named in Plaintiffs’ Eighth Amended Petition and, specifically, that there are no sales to any entity in Mission or Sharyland, Texas. L.A. Chemical Company’s customer database and sales records also reflect that it has not sold any product to any of the named Hayes-Sammons defendants in any other state, with the exception of three sales to Helena Chemical Company in year 2002, in Kerman California.

4. L.A. Chemical Company does not market products into the State of Texas, directly or indirectly. More specifically, it does not advertise its products for sale in the State of Texas and does not advertise its products for sale in any publication intended for nationwide distribution. L.A. Chemical Company’s sole advertising is in the telephone yellow pages for the local calling area for each of its branches. L.A. Chemical Company does not have any branches in the State of Texas.

         Appellees argue that this affidavit fails to negate all bases of personal jurisdiction because it does not address the specific time period alleged in the petition. We agree. The burden is on appellant to negate all bases of jurisdiction alleged. Am. Type Culture Collection, 83 S.W.3d at 807; EMI Music Mex., 97 S.W.3d at 853. In this case, the acts of appellant alleged to give rise to jurisdiction occurred from the 1950's until 1967. However, Miller’s affidavit does not address appellant’s sales and marketing activities with regard to Texas during this time period. The affidavit states that “sales records and database of customers reflect that there are no sales to customers in Texas” and that “L.A. Chemical does not market products into the State of Texas.” (Emphasis added.) These particular statements are stated in the present tense and only reference appellant’s current activities. Because the affidavit does not address the sales and marketing activities of appellant from the 1950's until 1967, it fails to negate the basis of jurisdiction alleged in the petition.

         Appellant responds to this argument by stating that the sales records and database of customers necessarily includes past as well as current sales and customers. However, in analyzing the language used in other portions of the affidavit, it is clear Miller intended to distinguish between appellant’s past and present activities. In paragraph two of the affidavit, Miller states “L.A. Chemical Company does not now have and has never had offices or agents in the state of Texas. L.A. Chemical Company does not now and never has owned real estate in the [S]tate of Texas. . . .” These statements, unlike the ones addressing sales and marketing in Texas, clearly include both past and present activities. The different language used leads this Court to the conclusion that the affidavit was meant only to address appellant’s current sales and marketing activities in Texas.

         Since Miller’s affidavit was the only evidence offered by appellant in support of its special appearance, we conclude appellant has failed to meet its burden of negating all bases of jurisdiction alleged by appellees. Appellant’s sole issue is overruled.

IV. CONCLUSION

         We affirm the trial court’s denial of appellant’s special appearance.                                                                                           

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Opinion delivered and filed

this 19th day of February, 2004.