Cibanco, S.A. Institucion De Banca Multiple v. Jesus M. Trillo Quezada and Miriam Rubio Garcia ( 2022 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CIBANCO, S.A., INSTITUCION DE § No. 08-21-00115-CV
BANCA MULTIPLE,
§ Appeal from the
Appellant,
§ 327th Judicial District Court
v.
§ of El Paso County, Texas
JESUS M. TRILLO QUEZADA and
MIRIAM RUBIO GARCIA, § (TC# 2021DCV0152)
Appellees.
OPINION
This is an interlocutory appeal from the trial court’s denial of the special appearance filed
by appellant CIBanco, S.A., Institucion de Banca Multiple’s (CIBanco). On appeal, CIBanco
argues it neither has continuous and systematic contacts with Texas, nor did it waive or concede
its special appearance objecting to the trial court’s exercise of personal jurisdiction. We reverse
and remand.
I. BACKGROUND
CIBanco is a full-service banking organization incorporated under the laws of Mexico. Its
principal place of business is in Mexico City. Employing over 2,700 employees, it operates
multiple banking branches throughout Mexico. No offices or branches are in Texas. Moreover, it
neither owns nor leases real property in Texas, nor owns subsidiary companies in the state. Finally,
CIBanco does not advertise or market its services in Texas. Nonetheless, to facilitate international
trade for its banking customers, CIBanco maintains a correspondent bank account with Citibank,
N.A. (Citibank). Generally, CIBanco’s customers receive payments from U.S. trading partners via
wire transfers made in U.S. dollars. Those transfers are deposited to CIBanco’s correspondent
account. On receipt of funds, CIBanco typically credits customer accounts in Mexican pesos for
an equivalent amount of such wire transfers.
Appellees Jesus M. Trillo Quezada and Miriam Rubio Garcia, husband and wife, are
residents of Texas who owned a timeshare property in Mexico. On January 13, 2021, Appellees
filed an original petition against multiple defendants, none of whom are parties to this appeal. 1
Appellees alleged the named defendants were “fraudsters” who devised a scheme to steal their
money, whereby they represented they could connect timeshare owners with “high paying buyers.”
Specifically, Appellees alleged defendants promised Appelles they would receive at least $95,000
in exchange for selling the last ten years of their forty-year timeshare.
Appellees further alleged that before they received the promised payment, defendants
demanded deposits of “refundable” fees totaling $127,257.31, which they did provide, into two
bank accounts portrayed as belonging to defendants. Appellees’ petition described the accounts as
follows: “either Citibank, N.A. bank account (supposed beneficiary name: CIBACO SA FFC TO
CONSTRUMACRO, account no. 36888793), or a Banco Santander bank account (supposed
beneficiary name: SALV AGUARDO DE BENEFICIOS, SA De CV, account no. 65507206757).”
After discovering defendants had no intent of brokering their transaction, Appellees demanded the
return of their deposits. Although promises were again made by defendants, Appellees claimed no
refund has yet been received. Based on their factual allegations, Appellees asserted claims of
1
The originally named parties include New York Twin Cities Power, Kansas Trust Company of America, Julieta
Bravo, Ana Perez, Daniel de Leon, Alan Diaz, Tiffany Sullivan, and David Acker (the defendants).
2
common law fraud, statutory fraud, breach of fiduciary duty, conversion, theft liability, negligent
misrepresentations, breach of contract, unjust enrichment, and money had and received. Appellees’
petition also included a request for a temporary restraining order, a temporary injunction, and a
permanent injunction, with such orders requiring defendants to immediately deposit all funds
received from Appellees into the registry of the court.
A day after filing suit against defendants, Appellees applied for a pre-judgment writ of
garnishment against Citibank, as garnishee, using the same case number and caption as their
original petition. The application alleged, “[Citibank] is indebted to Defendants through a banking
relationship in which Defendants are depositors in one of Garnishee’s branches.” Specifically,
Appellees claimed they would show “defendants maintain the following bank account with
Garnishee”:
CITIBANK, N.A.
Bank Account Number: 36888793
Bank Routing Number: 021000089
Alleged Name on Account: CIBANCO SA
FFC TO CONSTRUMACRO SA DE CV
Referencing the underlying lawsuit filed against defendants, Appellees alleged they sought
recovery of a debt of not less than $127,257.31. The application included a declaration of Appellee
Jesus M. Trillo Quezada and copies of outgoing wire transfer requests from his Wells Fargo
account to the two bank accounts identified by the original petition.
On January 15, 2021, the trial court signed a temporary restraining order (TRO) against
defendants as well as an order authorizing issuance of a pre-judgment writ of garnishment against
the Citibank account owned by CIBanco. The TRO ordered defendants to deposit all funds
belonging to Appellees in their possession or control into the registry of the court and to file a
statement under oath containing a list of all transactions, investments, purchases, and acquisitions
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made with plaintiff’s funds. The garnishment order garnished funds up to the maximum amount
of $127,257.31.
Initially, Citibank filed an original answer to the writ of garnishment utilizing the same
caption and case number as Appellees’ lawsuit though it added its own name as garnishee to the
caption. Citibank asserted two claims: first, it was not indebted to the two corporate defendants
named in the suit; and second, it lacked sufficient information to conclusively determine whether
it was indebted to the six individual defendants. As for the account belonging to CIBanco, it
answered it had debited funds from the account in the amount of $127,257.13, as instructed by the
court’s order of January 15, 2021. Citibank denied each material allegation and demanded strict
proof thereof by a preponderance of the evidence.
Days after Citibank answered, CIBanco filed two pleadings: a motion to vacate or dissolve
garnishment and an original petition in intervention “for the limited purpose of vacating and
dissolving the garnishment” issued against its Citibank account. Conforming to the actions of
Appellees and Citibank, CIBanco used the same caption and case number of the underlying suit.
In both pleadings, CIBanco asserted it did not waive its objection to lack of service of process, or
to the trial court’s lack of personal jurisdiction over it or its funds.
Subsequently, Appellees filed a first amended petition adding CIBanco as a named
defendant to the underlying suit. Appellees asserted CIBanco voluntarily submitted itself to the
jurisdiction of the court by intervening in the case. Responding to the amended petition, CIBanco
filed a special appearance under TEX. R. CIV. P. 120a., objecting to the trial court’s exercise of
personal jurisdiction. Appellees later replied, asserting CIBanco had waived its objections to the
trial court’s jurisdiction; even so, the trial court could exercise specific jurisdiction over CIBanco.
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The trial court soon held a hearing on CIBanco’s special appearance receiving argument
from both sides. CIBanco argued that neither general nor specific jurisdiction could be established,
and additionally, its involvement in the ancillary, garnishment proceeding did not constitute a
waiver of its special appearance or any of its objections to personal jurisdiction. In response,
Appellees contended CIBanco had waived its special appearance by filing a petition in intervention
and a motion to vacate prior to filing its special appearance; and, alternatively, that specific
jurisdiction applied regardless of the waiver issue. After receiving supplemental briefing, the trial
court denied CIBanco’s special appearance. The written order did not specify any grounds for the
court’s ruling. This appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7)
(permitting the interlocutory appeal of a denial of a special appearance).
II. STANDARD OF REVIEW AND BURDEN OF PROOF
Our determination of whether a trial court has personal jurisdiction over a defendant is a
question of law which we review de novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d
569, 574 (Tex. 2007). But if factual disputes exist, we review the trial court’s resolution of those
dispute as well. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
When the trial court does not file findings of fact in ruling on a special appearance, as done here,
all questions of fact are presumed to support the court’s order. Id. When the trial court does not
specify under what ground it exercised its authority to deny the special appearance, we may affirm
the ruling under any applicable legal theory. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990).
“[S]pecial-appearance jurisprudence dictates that the plaintiff and the defendant bear
shifting burdens of proof in a challenge to personal jurisdiction.” Kelly v. Gen. Interior Constr.,
Inc., 301 S.W.3d 653, 658 (Tex. 2010); see also Haddad v. ISI Automation Intl., Inc., No. 04-09-
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00562-CV, 2010 WL 1708275, at *4 (Tex. App.—San Antonio, Apr. 28, 2010, no pet.) (mem.
op.). Initially, the plaintiff bears the burden to plead sufficient allegations to bring a nonresident
defendant within the scope of the long-arm statute outlined by Texas. Id.; see also BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). To meet this burden, the plaintiff
does not need to detail all the theories or bases of personal jurisdiction upon which he relies; rather,
the plaintiff needs only to plead allegations sufficient to bring the nonresident defendant within
the province of the long-arm statute. Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex. App.—Houston
[14th Dist.] 2005, no pet). Once the plaintiff meets this burden, the burden shifts to the defendant
challenging jurisdiction through a special appearance. Kelly, 301 S.W.3d at 658; BMC Software,
83 S.W.3d at 793; Haddad, 2010 WL 1708275, at *4. The defendant must negate all bases of
personal jurisdiction alleged by the plaintiff. Kelly, 301 S.W.3d at 658. A defendant can negate
jurisdiction by showing the evidence is factually or legally insufficient. Id.
If, however, plaintiffs fail to meet their initial burden of pleading jurisdictional allegations,
then a defendant can satisfy its burden by simply proving it is a nonresident. Oryx Capital Int’l,
Inc. v. Sage Apartments, L.L.C., 167 S.W.3d 432, 441 (Tex. App—San Antonio 2005, no pet.). If
the defendant proves its nonresidency status or otherwise negates personal jurisdiction, then the
burden returns to plaintiffs, who must show as a matter of law the trial court has personal
jurisdiction over the defendant. Id.III. DISCUSSION
In a single, overarching issue that includes sub-issues, CIBanco asserts the trial court erred
in denying its special appearance. By its two sub-issues, CIBanco more specifically asserts (1)
Texas courts do not have personal jurisdiction over it because it has no continuous and systematic
contacts with the state, and (2) its motion to intervene in an ancillary proceeding, asking to vacate
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or dissolve a garnishment, did not constitute a waiver of its special appearance or its concession to
the trial court’s jurisdiction.
Because waiver is a dispositive issue, we address the second sub-issue first. We reach the
first sub-issue only if no waiver is shown.
A. Waiver of Special Appearance
CIBanco asserts that neither its motion to dissolve the garnishment order nor its petition in
intervention waived its jurisdictional arguments. It contends its filings amounted to mere
participation in an ancillary proceeding, not a general appearance in the underlying suit.
Countering, Appellees argued CIBanco’s petition in intervention and motion to vacate invoked the
trial court’s judgment and sought affirmative relief, and therefore, CIBanco made a general
appearance.
A special appearance permits a nonresident defendant to object to personal jurisdiction in
a Texas court. See TEX. R. CIV. P. 120a. Nonetheless, a nonresident defendant may be subject to
personal jurisdiction in a Texas court if that defendant enters a general appearance. Boyd v.
Kobierowski, 283 S.W.3d 19, 21 (Tex. App.—San Antonio, no pet.); see also TEX. R. CIV. P. 120.
“A general appearance entered before a special appearance waives the special appearance .” Boyd,
283 S.W.3d at 21 (citing Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304–05 (Tex. 2004)). A
party waives a special appearance and enters a general appearance: (1) when it invokes the
judgment of the court on any question other than the court's jurisdiction, (2) when it recognizes by
its own acts that an action is properly pending, or (3) when it seeks affirmative action from the
court. Dawson–Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); Moore By & Through Moore
v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex. App.—El Paso 1994, writ denied).
7
CIBanco asserts it did not enter a general appearance by entering the garnishment
proceeding seeking to dissolve or vacate the garnishment order. CIBanco argues that Texas courts
have found this type of intervention is limited and does not waive the right to a special appearance.
Appellees respond by arguing that CIBanco waived its challenge to personal jurisdiction by
seeking affirmative action from the court before obtaining a ruling on its special appearance.
In Texas, garnishment proceedings are governed by Chapter 63 of the Civil Practice and
Remedies Code and Rules 657 through 679 of the Texas Rules of Civil Procedure. See TEX. R.
CIV. P. 657–79; TEX. CIV. PRAC. & REM. CODE ANN. §§ 63.001–.008; see also Zeecon Wireless
Internet, LLC v. Am. Bank of Tex., N.A., 305 S.W.3d 813, 816 (Tex. App.—Austin 2010, no pet.).
“Garnishment is a statutory proceeding whereby the property, money, or credits of a debtor in the
possession of another are applied to the payment of the debt.” Bank One, Tex., N.A. v. Sunbelt
Sav., F.S.B., 824 S.W.2d 557, 558 (Tex. 1992).
“A garnishment proceeding involves at least three parties: (1) the plaintiff (also known as
the garnishor or creditor); (2) the defendant or debtor; and (3) the garnishee.” Nat’l City Bank v.
Tex. Capital Bank, N.A., 353 S.W.3d 581, 584 (Tex. App.—Dallas 2011, no pet.). “The plaintiff
or garnishor is a creditor of the debtor and requests the court to issue the writ of garnishment to
the garnishee.” Id. “The garnishee is a third party who owes a debt to or holds property of the
debtor.” Id. Because a debtor-creditor relationship arises when a customer places funds on deposit
with a bank, it may serve as garnishee. See Citizens Nat’l Bank of Dallas v. Hill, 505 S.W.2d 246,
248 (Tex. 1974); Hudnall v. Tyler Bank & Tr. Co., 458 S.W.2d 183, 186 (Tex. 1970). Primarily, a
garnishment proceeding determines whether the garnishee is indebted to or has in its possession
effects belonging to the debtor. Buckeye Ret. Co., LLC, Ltd. v. Bank of Am., N.A., 239 S.W.3d 394,
399 (Tex. App.—Dallas 2007, no pet.).
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A garnishment action is an ancillary proceeding. See Park v. W. Union Fin. Servs., Inc.,
No. 03-08-00292-CV, 2009 WL 3486373, at *2 (Tex. App.—Austin 2009, no pet.) (mem. op.)
(“A garnishment action is not an original suit, but an ancillary proceeding that takes its jurisdiction
from the underlying suit.”). Typically, an appearance in ancillary proceedings does not subject the
appearing party to the court’s general jurisdiction. Carey v. State, No. 04-09-00809-CV, 2010 WL
2838631, at *3 (Tex. App.—San Antonio July 21, 2010, pet. denied) (mem. op.) (“Texas courts
have also recognized that appearing in matters ancillary and prior to the main suit does not
constitute a general appearance in the main suit and will not waive a plea to the jurisdiction.”).
Here, CIBanco contends that a motion to dissolve or petition in intervention are proper
procedure for a non-party to vacate or dissolve an improper garnishment. See TEX. R. CIV. P. 664a
(“A defendant whose property or account has been garnished or any intervening party who claims
an interest in such property or account, may file a motion to dissolve or modify the writ of
garnishment the order directing its issuance, or both for any grounds or cause, extrinsic or
intrinsic.”). Relying on this procedural rule, CIBanco asserts that neither the motion to vacate or
dissolve the garnishment, nor the petition in intervention constituted a general appearance.
In response, Appellees nonetheless assert that CIBanco should have filed a special
appearance prior to filing a motion to dissolve the garnishment. Because it did not, they contend
CIBanco failed to comply with mandatory requirements of TEX. R. CIV. P. 120a, thereby waiving
its objection to the trial court’s exercise of personal jurisdiction. CIBanco replies that Appellees
misread the limitation included in the text of Rule 120a, wherein it states, “a special appearance
may be made by any party . . . .” TEX. R. CIV. P. 120a [Emphasis added]. CIBanco contends it was
not a party to the lawsuit when the trial court issued the order leading to the garnishment of funds
from its account. As a non-party of the suit, CIBanco asserts it could not file a special appearance
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at that time. We agree with that reading of Rule 120a. But the question becomes whether
CIBanco’s actions nonetheless constituted a general appearance in the suit.
Texas courts have weighed in on the type of action constituting a general appearance.
Appearing in matters ancillary and prior to the main suit do not qualify as such. For example,
agreeing to a Rule 11 agreement or collateral order, filing a writ of mandamus or motion for
emergency relief, and agreeing to the extension of a temporary restraining order or temporary
injunction will not constitute a general appearance. See Grynberg v. M-I L.L.C., 398 S.W.3d 864,
878 (Tex. App.—Corpus Christi–Edinburg 2012, pet. denied) (collecting cases). Moreover,
sending discovery requests is not enough, on its own, to waive a special appearance. Minucci v.
Sogevalor, S.A., 14 S.W.3d 790, 800 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding
discovery did not constitute a waiver of special appearance and, although defendant’s discovery
requests attempted to elicit evidence to support its motion to dissolve the writ of garnishment and
not grounds raised by plaintiff to defeat the special appearance, that Rule 120a does not limit
discovery matters relating to the special appearance); see also TEX. R. CIV. P. 120a.
However, in considering surrounding circumstances, courts typically find that a defendant
makes a general appearance when it seeks affirmative relief or otherwise invokes action from the
trial court. See Kaufman v. AmeriHealth Lab., LLC, No. 05-20-00504-CV, 2020 WL 6375336, at
*5 (Tex. App.—Dallas Oct. 30, 2020, no pet.) (mem. op.) (holding defendant’s conduct during the
beginning of a TRO hearing, considered in context of the present record, amounted to a general
appearance); Schoendienst v. Haug, 399 S.W.3d 313, 321–22 (Tex. App.—Austin 2013, no pet.)
(holding that defendant entered a general appearance through conduct in agreeing to the temporary
injunction at issue but notes the analysis is dependent upon particular facts because there can be
circumstances where a defendant’s agreement to a temporary injunction will not constituted the
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sort of recognition of the court’s jurisdiction that amounts to an appearance); Trenz v. Peter Paul
Petroleum Co., 388 S.W.3d 796, 803 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding
defendant waived his special appearance by seeking affirmative relief from the court through a
motion to dismiss and motion for summary judgment, all before the trial court heard and
determined his special appearance).
Accordingly, our analysis here hinges on the specific circumstances of the case and actions
taken by CIBanco relative to the suit. Looking to the substance of its pleadings, CIBanco asserted
it was intervening for the limited purpose of moving to vacate or dissolve the garnishment pursuant
to Rule 664a of the Texas Rules of Civil Procedure and “without waiving its objections to lack of
service of process or this Court’s jurisdiction.” Appellees argue CIBanco sought affirmative relief
because its motion sought to establish it was the true owner of the account, the garnishment was
improper, and the trial court should dissolve the garnishment. We disagree. Based on these
pleadings, the only relief CIBanco sought was limited in reach and solely related to the
garnishment proceeding, which is well-recognized as being an ancillary matter. CIBanco’s
requests were not inconsistent with its special appearance, and in fact, it expressly maintained the
trial court lacked personal jurisdiction.
In this instance, CIBanco’s actions were not the type that constituted “stepping outside the
role of observer or silent figurehead and participating in the hearing,” or taking action “inconsistent
with the assertion that the trial court lacked jurisdiction[.]” See Kaufman, 2020 WL 6375336, at
*4. CIBanco did not agree to anything affecting the merits of the case, or “[subject itself] to a court
order that restricted [its] personal freedom and ability to deal with [its] property and finances in
anticipation of trial on the merits.” Cf. Schoendienst, 399 S.W.3d at 320–21, 315 (holding
defendant made a general appearance where defendant agreed without qualification to the
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temporary injunction which stated the plaintiffs would probably prevail at trial and imposed
restraints on defendants’ conduct). Furthermore, CIBanco did not agree to or argue against any
issues at the core of the lawsuit. Cf. Kaufman, 2020 WL 6375336, at *4 (holding defendant made
a general appearance by voluntarily appearing through counsel at the TRO hearing, successfully
modifying the terms of the TRO, and arguing against plaintiff’s underlying breach of contract
claim).
Even so, Appellees claim CIBanco voluntarily became a party to the pending lawsuit by
filing a petition in intervention. Relying on authority from the San Antonio Court of Appeals,
Appellees argue, “[a]n intervention is an equitable motion filed by a nonparty voluntarily seeking
to become a party in a pending suit to protect the nonparty’s own rights.” See In re H.G., 267
S.W.3d 120, 122 n.1 (Tex. App.—San Antonio 2008, pet. denied). But we find the case inapposite
to the circumstances presented here. As CIBanco points out, our sister court of appeals found in
that case that the subject pleading, styled as an intervention, was in fact an original suit given there
was no pending suit in which the parties could intervene. Id. at 122.
Of note, the Texas Rules of Civil Procedure require a writ of garnishment be separately
docketed. See TEX. R. CIV. P. 659 (providing that after prerequisites of an application for
garnishment have been met, “the clerk . . . shall docket the case in the name of the plaintiff as
plaintiff and of the garnishee as the defendant . . .”). But here, the garnishment action initiated by
Appellees was not so docketed. Instead, Appellees application for a writ of garnishment was filed
under the same case number as their original suit. Acknowledging this error, Appellees cite to a
case where the court held there was no harm in proceeding with a garnishment action in the same
case number. See Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 658 (Tex. App.—San
Antonio 1989, writ denied). There, the court found the validity of the judgment was not affected.
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Id. But even if we assume such docketing error was harmless, we must still decide whether such
error otherwise altered the ancillary nature of the proceeding itself. In this instance, had Appellees
filed their garnishment application in a separate proceeding as ordinarily required, CIBanco’s
responsive actions would no doubt have been taken in a separate case apart or ancillary to the main
suit.
Most recently, the Supreme Court of Texas reiterated that a misfling of a motion for new
trial under an original docket number, when it should have been filed under a new case number,
should not be construed as leading to a material difference in the outcome of the case absent a
showing of prejudice. Mitschke v. Borromeo, 645 S.W.3d 251, 262 n.20 (Tex. 2022).
Consequently, in that case, the Supreme Court found the timely filed notice of appeal that was
docketed under the wrong case number did not deprive the court of jurisdiction. Id. Indeed, in more
recent decades, courts of appeals are instructed not to be constrained by the form or caption of a
pleading, but rather apply a functional approach. Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex.
1999). Recognizing the distinction between the main suit and an ancillary proceeding regardless
of docket number, we hold CIBanco’s actions in both moving to dissolve the garnishment order,
and in petition to intervene in the garnishment proceeding itself functioned, in substance, not as a
general appearance in the main lawsuit, but merely as a response to the courts’ garnishment of
funds in its account. Said differently, but for the docketing error made either by Appellees or the
clerk, the ancillary nature of the separate proceeding would have remained intact. See Park, Inc.,
2009 WL 3486373, at *2; Carey, 2010 WL 2838631, at *3. Because CIBanco limited its actions
to merely addressing the garnishment order before it had been brought in as a party to the main
suit, we hold it did not waive its special appearance simply by taking such actions in the same case
number.
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Sub-issue one is sustained.
B. Personal Jurisdiction
Having concluded CIBanco did not waive its special appearance, we next consider the first
sub-issue. CIBanco argues the trial court erred in denying its special appearance on the merits.
1. Standard of Review
Whether the trial court had personal jurisdiction over a defendant is a question of law. Am.
Type Culture, 83 S.W.3d at 805–06. We apply a de novo review to the trial court’s decision to
grant or deny a special appearance, but if a factual dispute exists, we review the trial court’s
resolution of the factual dispute as well. Id. at 806; see also BMC Software, 83 S.W.3d at 794.
When, as here, the trial court does not file findings of fact in a special appearance, all questions of
fact are presumed to support the judgment. Am. Type Culture, 83 S.W.3d at 806. When the trial
court does not specify under what ground it was exercising its authority to deny the special
appearance, we may affirm the judgment under any applicable legal theory. Worford, 801 S.W.2d
at 109.
2. Applicable law
A Texas court may exercise personal jurisdiction over a nonresident defendant when doing
so is permitted by the Texas long-arm statute and the exercise of jurisdiction is consistent with
federal and state due-process guarantees. Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d
550, 558 (Tex. 2018); 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
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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).
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)).
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
15
defendant only when the defendant “could reasonably anticipate being haled into court there.”
Moncrief Oil, 414 S.W.3d at 152.
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. 2017) (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 AG v. Kimich, 310
S.W.3d 868, 872 (Tex. 2010). 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 Colombia v. Hall, 466 U.S. 408, 414
n.8 (1984)).
3. Analysis
a. General jurisdiction
On appeal, CIBanco first asserts it has no continuous and systematic contacts with Texas
to support the trial court’s exercise of general jurisdiction. By uncontested evidence, CIBanco
established it is a Mexican bank with its principal place of business in Mexico City. It is neither
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headquartered nor incorporated in Texas. Rather, CIBanco is “a full-service Mexican banking
organization organized and existing under the laws of Mexico” with “no employees, agents,
offices, branches, or operations in Texas.” Appellees do not contest these factual assertions.
Beyond asserting that CIBanco waived its objection to personal jurisdiction by entering a general
appearance, Appellees present no argument contending that the court may exercise general
jurisdiction over CIBanco.
We conclude CIBanco is not “at home” in Texas and therefore, Texas courts do not have
general jurisdiction over CIBanco. See M & F Worldwide Corp., 512 S.W.3d at 885.
b. Specific jurisdiction
CIBanco secondly asserts Texas courts have no specific jurisdiction over it because it has
made no purposeful contacts with Texas related to Appellees’ lawsuit. In its first amended petition,
whereby Appellees added CIBanco as a defendant, they asserted the court had jurisdiction over
defendants generally “because the Defendants conduct business in the State of Texas.” Appellees
further alleged CIBanco voluntarily submitted itself to the jurisdiction of the court by intervening
in the case, which we addressed earlier in this decision. Lastly, Appellees alleged the Citibank
account in which deposits were initially transferred turned out to be owned by CIBanco, who,
“upon information and belief, is either involved in the time share scam conspiracy, or [CIBanco]
allowed its employees, officers, directors, agents, or other persons or entities associated with it,
herein named as Defendants John Does 1-10, to commit the fraud against Plaintiffs, and is jointly
and severally liable to Plaintiffs for the wrongful acts of Defendants John Does 1-10.” Relevant to
this allegation, Appellees argued in the hearing below that deposits were made in an El Paso bank
and later transferred to Citibank, which operated in Texas, and based on those deposits, CIBanco
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eventually received funds in its account. Appellees argued that CIBanco’s receipt of funds which
were “scammed” from them gave rise to the trial court’s specific jurisdiction.
In briefing, Appellees contend that based on the reasoning in San Pedro Impulsora de
Inmuebles Especiales, S.A. de C.V. v. Villarreal, 330 S.W.3d 27, 40 (Tex. App.—Corpus Christi–
Edinburg 2010, no pet.), CIBanco’s contacts are sufficient to demonstrate an alleged tort occurred
in part in Texas. In San Pedro Impulsora, the court found that allegations of specific jurisdiction
were sufficient because the nonresident defendant, a Mexican corporation, had not contested that
it was created for the purpose of holding title to Texas land, that it had acquired funds through a
false promissory note and sham lawsuit, and funds were transferred to it from a bank account in
Mexico to one in Texas. Id. at 40. Instead, the nonresident corporate defendant contended that
fraud took place in Mexico and the fact that money ended up in a Texas bank account was
insufficient to hold it to jurisdiction in Texas. Id. The court disagreed, concluding as follows:
Moreover, San Pedro Impulsora is alleged to have been created solely for the
purpose of holding title to Texas property and did, in fact, hold Texas property
belonging to Doña Raquel, the ward of a Cameron County guardianship
proceeding. San Pedro Impulsora is alleged to have participated in a fraudulent
lawsuit and promissory note to obtain funds from Doña Raquel. After a series of
transactions, the funds' ultimate destination was the Lone Star account in Texas.
These contacts are sufficient to demonstrate that this alleged tort occurred at least,
in part, in Texas.
Id. at 41. We conclude, however, that San Pedro Impulsora is distinguishable. Here, Appellees
asserted no allegations of CIBanco owning property in Texas or otherwise alleging it was created
for the sole purpose of holding title to Texas land.
Additionally, through the declaration of Juan Carlos Montaño de la Peña, its Chief
Operating Officer and International Treasurer, CIBanco negated Appellees jurisdictional
allegations that it had conducted business in Texas. In his declaration, de la Peña attests that the
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Citibank account is a correspondent bank account, it is not situated in Texas, and CIBanco does
not target the Texas market. He further attested as follows:
A main purpose of a correspondent account is to facilitate international trade and
foreign exchange. It is normal for CIBanco's Mexican business customers to receive
payments from their U.S. trading partners via wire transfers in U.S. dollars to
CIBanco's correspondent account. Once a payment for the benefit of a CIBanco
customer is received into the correspondent account, CIBanco typically credits its
Mexican customer for an equivalent amount of Mexican pesos and disburses that
amount to the customer in Mexico.
Relevant to the alleged claims, de la Peña attested there was no record of Appellees or any of the
named defendants of the suit being a CIBanco customer. Instead, de la Peña confirmed that
Construmacro was a customer of the bank and its records showed “Mr. Trillo sent three wire
transfers for the benefit of Construmacro.” Only three payments totaling $25,676.31, were
identified between Appellees and Construmacro. He continued:
After confirmation that Citibank had deposited the transfers into CIBanco’s
correspondent account, CIBanco disbursed the equivalent amount of the funds, in
Mexican pesos, to its customer in Mexico. The funds were disbursed in November
and December 2020. CIBanco no longer holds the proceeds of Mr. Trillo's wire
transfers to Construmacro because CIBanco already has disbursed the funds as part
of CIBanco’s ordinary course of business.
Lastly, de la Peña attested that it is not in the business of selling or purchasing time shares in
Mexico or elsewhere.
Appellees’ allegations asserting they deposited funds into their own bank account, which
then resulted in a wire transfer of funds into an account utilized by CIBanco but belonging to an
unnamed defendant, are insufficient to constitute purposeful availment in Texas. See Bell, 549
S.W.3d at 564 (holding that allegations of alleged fraudulent transfers of fungible assets are not
viewed the same as the fraudulent transfer of Texas-based business operations and real property).
Further, under our specific jurisdiction inquiry, we only consider the relevant contacts of the
defendant with the forum state, not the unilateral activity of another; and even still, those contacts
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must be purposeful, not random, fortuitous, isolated, or attenuated. See Moncrief Oil, 414 S.W.3d
at 151. Appellees’ allegation of depositing money into their own account, which later resulted in
a transfer of funds to CIBanco’s account, is insufficient alone to confer jurisdiction. As courts are
cautioned, “[j]urisdiction cannot turn on whether a defendant denies wrongdoing—as virtually all
will. Nor can it turn on whether a plaintiff merely alleges wrongdoing—again as virtually all will.”
Michiana, 168 S.W.3d at 791. The mere act of accepting the transfer of money drawn on a Texas
bank is “of negligible significance for purposes of determining whether [a foreign defendant] had
sufficient contacts in Texas.” Bell, 549 S.W.3d at 564. Thus, even if CIBanco’s receipt of funds
into their correspondent account were part of a fraudulent scheme, this contact alone failed to
establish purposeful availment of the state of Texas. We conclude that CIBanco negated any
allegations of the existence of minimum contacts with Texas. Accordingly, the trial court erred in
denying the special appearance.
We sustain CIBanco’s first-sub issue.
IV. CONCLUSION
For the above reasons, we reverse the trial court’s order denying CIBanco’s special
appearance. We remand the cause to the trial court for severance and dismissal of the claims
asserted against CIBanco by Appellees Jesus M. Trillo Quezada and Miriam Rubio Garcia, and
for further proceedings consistent with this opinion.
GINA M. PALAFOX, Justice
November 22, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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