Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Company

Opinion issued July 30, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-13-00349-CV & 01-13-00610-CV
———————————
BRENHAM OIL & GAS, INC., Appellant/Cross-Appellee
V.
TGS-NOPEC GEOPHYSICAL COMPANY, Appellee/Cross-Appellant
AND
ENI S.p.A., Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2011-43156
OPINION
Appellant Brenham Oil & Gas, Inc. filed suit against TGS-NOPEC
Geophysical Company and ENI S.p.A. Brenham Oil had pursued an oil production
agreement with the Republic of Togo, but it alleged those efforts failed due to the
tortious interference of TGS, a company that gathers and markets seismic data for
the hydrocarbon industry. ENI, an Italian oil company, was accused of aiding and
encouraging TGS’s tortious conduct.
ENI filed a special appearance and the claims against it were dismissed.
TGS, a Delaware corporation headquartered in Houston, successfully moved to
dismiss based on forum non conveniens. Brenham Oil appealed the dismissal of
both parties. TGS cross-appealed arguing that the trial court also should have
dismissed Brenham Oil’s claims for lack of standing or want of subject matter
jurisdiction over Togolese real property.
We affirm the dispositive orders of the trial court and dismiss the cross-
appeal as moot.
Background
Brenham Oil & Gas, Inc. is a Texas corporation with its headquarters near
Houston. The company, with its highly credentialed leadership and extensive
experience in the oil-and-gas business, sought international oil-and-gas exploration
investment opportunities.
In early 2010, the discovery of a large oil field off the coast of Ghana
prompted Brenham Oil to investigate prospects in the waters of the neighboring
country of Togo. Brenham Oil’s executives, including its President, Scott Gaille,
felt they were in luck: one of them was friends with an old schoolmate of the
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Togolese president. With the help of this well-placed friend, Brenham Oil arranged
for Gaille to meet in Togo with the nation’s Energy Minister as well as its Director
of Hydrocarbons, Léopold Mebah Siah. The May 2010 meeting included
discussion of the possibility that Brenham Oil would enter into a production-
sharing contract for hydrocarbons located in an area of Togolese waters
denominated “Block 2.” Brenham Oil was instructed that it could obtain seismic
data on Block 2 by contacting TGS-NOPEC Geophysical Company. Togo had
licensed this data to TGS for the purpose of marketing it to exploration companies.
Unbeknownst to Brenham Oil, Siah had written to Roger Welch, TGS’s
manager for Africa, asking for information about Brenham Oil prior to Gaille’s
arrival in Togo. Welch, who lived and worked in London, sent the following email
to Siah from his London office:
I have asked the Houston office to check on Brenham Oil & Gas also.
Brenham Oil & Gas is a very small company which has mineral rights
on a permit in Texas, they do not operate; the permit is operated by
Anadarko. Brenham appears to be a subsidiary of a larger company
American International Industries which deals in real estate, plastic
products and some well service equipment, they have no experience in
either the upstream or downstream oil & gas industry.
None of the management team have any experience in the oil & gas
industry.
We do not recommend that Brenham be considered for any petroleum
exploration permit in Togo.
...
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As I mentioned TGS is interpreting all of the data we have acquired
offshore Togo and integrating this with our regional data base off
Ghana and Benin.
Within a month we will have a report showing prospects offshore
Togo showing their similarities with the Jubilee field offshore Ghana.
TGS is constantly talking with the serious oil companies exploring the
Ghana, Togo & Benin margin, we will be showing the report to these
companies and more.
At present the companies looking to make large investments in this
margin are Chevron, Total, ENI Repsol-YPF, StatOilHydro etc.
Let’s do a promotion to these types of companies.
After the meeting with Gaille, Siah wrote an email back to Welch:
It was a good meeting with M. Gaille from Brenham Oil & Gas
company. We also the minister an[d] I noted that it si [sic] very small
unexperienced company. We gave them copies of model PSA and
hydrocarbon code. Also we told them to make contact with PGS [sic]
for further information in terms of data evaluation and data licencing.
Please can you brief us on data package price, licencing procedure and
details of volume of data to be shown and licenerd [sic].
Thank you for your precious cooperation on this matter.
Behind the scenes at TGS, the news that Brenham Oil was talking to Togo about
Block 2 was not welcome. Welch was part of TGS’s Africa, Middle East, and Asia
Pacific (“AMEAP”) team and subordinate to David Hicks, the divisional vice
president. Prior to answering Siah’s inquiry about Brenham Oil, Welch had
emailed Hicks and fellow AMEAP team member Kim Abdallah, both of whom
worked in Houston. Welch wrote, “Do you know anything about Brenham Oil &
Gas . . . . They are meeting with minister tomorrow to try and get block 2. If it is a
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small co. they will not buy data and try to promote block—not good for us or
Togo.”
Brenham Oil dispatched its vice president, L. Rogers Hardy, to examine the
data located at TGS’s Houston headquarters. Hardy contacted Hicks, visited TGS’s
Houston office, and entered into a confidentiality agreement to view the
information. When Hicks reported that the “guy from Brenham” had come by
inquiring about the data, Welch emailed back, “I’ve already told Togo not to deal
with them.”
On May 17, Brenham Oil learned of the negative evaluation Welch had
given to Siah. Gaille responded by emailing Welch, attaching a short biography to
show his competence. Gaille wrote:
I wanted to provide you with information regarding my background.
Of course, you have not heard of Brenham Oil & Gas. Brenham Oil &
Gas is a new vehicle that I am using to place capital in international
exploration opportunities, and I am working with my network of
contacts at the large oil and gas companies and governments to
acquire exploration block interests. We expect to build a portfolio of
approximately 10 wells over the next three years. Our goal is exposure
of public and private capital to a series of high potential wells. . . .
We would very much appreciate you and your team’s support in our
efforts in Togo and elsewhere, and we understand it is important that
you have an accurate understanding of our background and
experience. If you need a reference or have any further questions,
please do not hesitate to contact me.
Four days later, Abdallah sent an email to two Houston-based TGS colleagues:
AMEAP team member Juan Santana and sales representative Julie Halbison.
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Abdallah instructed them how to price the data for Brenham Oil, writing, “make it
high.”
Welch later echoed that sentiment. In an email exchange, TGS employee Jim
McNeil told Welch that he could provide Hardy “a list of the wells we have when
necessary” and asked him to “please let me know if you want me to do anything at
this time.” Welch replied, “I’ll wait until he absorbs the price,” noting that
Brenham Oil would likely complain about it to the government. In response to a
query a few days later from Halbison about pricing the data for Brenham Oil,
Welch wrote, “I don’t think that this is going anywhere, Brenham will not be
prepared to pay anything significant to get the block. If we get a serious company I
will let you guys do the pricing.”
On May 24, Brenham Oil presented Togo a proposed production-sharing
agreement. In June, Gaille traveled to Togo once more and held a series of
meetings with officials to work out the terms of the agreement. Yair Green, an
Israeli lawyer, participated on the side of the Togolese government. By July,
Brenham Oil thought that it had settled on an agreement with Togo: its Board had
approved the prospective agreement, and emails were exchanged about scheduling
a signing ceremony in Paris. However, the parties never met in Paris and no
agreement was signed. As the months went by, Gaille continued to press Green
about signing the agreement. In October, Brenham Oil learned through news
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reports that Togo had entered an agreement to develop Block 2 with ENI S.p.A.,
the Italian oil company that ultimately would drill in Block 2.
ENI’s investigation of exploration opportunities near Togo and negotiations
for the purchase of seismic data had been underway since before Brenham Oil’s
initial May 2010 meeting there. As early as January 2010, TGS’s AMEAP
employee Sara Stephens, based in London, was communicating by email with
Illiberi Leonardo, an ENI employee in Milan, promoting the sale of TGS’s data to
ENI. By March, Stephens was working with AMEAP employee Juan Santana,
based in Houston, and TGS sales coordinator Jana Spencer, also in Houston, on
finalizing a licensing agreement. In April, Stephens, who continued to
communicate with Leonardo and ENI on behalf of TGS, was complaining of ENI’s
delay in consummating the sale. The delays were troubling to Santana and the
other TGS team members.
At the end of May, Santana emphasized to his colleagues the importance of
concluding the sale with ENI. In a series of emails, he wrote, “We need ENI bad!”
and “FYI, WE NEED ENI . . . to reach forecast. Take no prisoners. . . . show me
the money!” Nonetheless, it was only in November 2010, after ENI had entered
into a production agreement with Togo, that the sale of seismic data was
completed.
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Brenham Oil initially filed suit against TGS and an American ENI
subsidiary, ENI Petroleum Co. Inc. However, Brenham Oil later nonsuited the
subsidiary and amended its pleadings to sue the parent, ENI, S.p.A., directly.
Brenham Oil alleged that TGS had tortiously interfered with its prospective
business relations with Togo “by making false, negligent, intentional, fraudulent,
and/or defamatory statements to Togolese officials.” Brenham Oil relied especially
upon the email Welch sent to Siah calling Brenham Oil “a very small company”
and recommending that it not be considered for a petroleum exploration permit.
Brenham Oil further alleged that ENI knowingly assisted or encouraged TGS’s
tortious acts.
ENI filed a special appearance arguing that the court lacked jurisdiction over
it. The trial court granted the special appearance and dismissed the claims against
ENI. Brenham Oil promptly filed notice of an accelerated appeal.
Litigation continued in the trial court between Brenham Oil and TGS, which
filed several dispositive motions: a motion to dismiss based on forum non
conveniens; a motion to dismiss for lack of subject-matter jurisdiction; a motion
for summary judgment alleging lack of standing and inability to prove damages;
and a “Final Motion for Summary Judgment,” tackling the merits of Brenham Oil’s
tortious interference claim. In its motion to dismiss for forum non conveniens,
TGS claimed that the case should be litigated in Togo, not Harris County. After
8
holding multiple hearings, entertaining extensive briefing, and receiving evidence,
the trial court ultimately granted the forum non conveniens motion and dismissed
the case without ruling on TGS’s other dispositive motions. Brenham Oil timely
filed notice of appeal. TGS then filed a cross-appeal.
Analysis
I. ENI’s special appearance
Brenham Oil argues that the trial court erred by granting ENI’s special
appearance. It contends that the trial court had both general and specific
jurisdiction over ENI.
A. Brenham Oil’s motion to strike affidavit
As a preliminary matter, Brenham Oil argues that the trial court erred by
denying its motion to strike an affidavit ENI offered in support of its special
appearance. ENI employee Marco Bollini’s detailed affidavit, dated May 24, 2012,
was phrased in the present tense but noted that its statements were “true and
correct now and for all applicable time frames involving the plaintiff’s allegations
in this case.” It contained a litany of specific denials supporting his employer’s
assertion that while it has numerous American subsidiaries that do business in
Texas, ENI itself has no presence in Texas. For example, Bollini denied that ENI
“sell[s] goods or provide[s] any services in Texas,” and he asserted that ENI “does
not and has never maintained an office or any other facility in Texas.”
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Brenham Oil presents two reasons why the affidavit should have been
struck. Both relate to paragraph 18, which stated:
A small number of ENI S.P.A. employees may be assigned to ENI
S.P.A. subsidiaries in the United States on a temporary basis. During
the term of a temporary assignment, an assigned employee enters into
an employment agreement with the U.S. subsidiary that has the right
to direct and control the details of the employee’s work. ENI S.p.A.
relinquishes the right to direct and control the details of any assigned
employee’s work. Accordingly, the subsidiary to which an employee
is assigned pays all compensation during his or her term of
assignment.
Brenham Oil contends that the entire affidavit should be struck because it is
materially false. In the alternative, it argues that the challenged paragraph should
be struck as conclusory.
We review a trial court’s ruling on a motion to strike an affidavit or portion
thereof for abuse of discretion. In re BP Prods. N. Am., Inc., 263 S.W.3d 106, 117
(Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). A trial court may
determine a special appearance on the basis of affidavits. See TEX. R. CIV.
P. 120a(3). The affidavits, however, must “be made on personal knowledge” and
“set forth specific facts as would be admissible in evidence.” Id. Consequently, the
affidavits used must be direct, unmistakable, and unequivocal as to the sworn facts,
allowing perjury to be assigned on them. Wright v. Sage Eng’g Inc., 137 S.W.3d
238, 250 n.8 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
10
Brenham Oil argues that paragraph 18 is materially false because it partly
contradicts numerous letters of invitation sent by ENI US Operating Co. Inc. to the
United States Consulate in Milan regarding working visits to the United States by
ENI S.p.A. employees. For example, a letter submitted on June 25, 2009 by ENI
US Operating Co. on behalf of Chiara Guiducci, said:
This is to explain the business visit to the United States by Ms. Chiara
Guiducci. She is currently employed by ENI S.p.A. in San Donato,
Italy in the position of Lead Reservoir Engineer for ENI S.p.A.
Exploration and Production.
. . . . ENI US Operating Co. Inc. would like to invite Ms. Chiara
Guiducci to attend meetings on behalf of and as an employee of ENI
S.p.A. She will be visiting and attending meetings relating to the
Kashagan Field Development project.
Ms. Chiara Guiducci will continue to be an employee of ENI S.p.A.
and will remain on its payroll throughout her staying the United
States. She will receive no remuneration in the United States.
Other letters, dated as early as January 2008 and as late as July 2010, use similar
language. Brenham Oil points out that the claims in the letters that an employee
“will continue to be an employee of ENI S.p.A. and will remain on its payroll”
contradict the statements in Bollini’s affidavit that “an assigned employee enters
into an employment agreement with the U.S. subsidiary that has the right to direct
and control the details of the employee’s work,” that ENI S.p.A. “relinquishes the
right to direct and control the details of any assigned employee’s work,” and that
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“the subsidiary to which an employee is assigned pays all compensation during his
or her term of assignment.”
Despite the difference between the affidavit submitted by ENI and the
documentation noted by Brenham Oil, the comparison does not conclusively
establish that the statements in Bollini’s affidavit are false. While the invitation
letters identified by Brenham Oil indicate that ENI employees who visited Texas
would remain on ENI’s payroll, the letters were each written in the future tense to
describe proposed visits. As such, the letters were not direct evidence of the
eventual employment arrangement for the visiting employees. Perhaps more
compellingly, Bollini’s affidavit statement that the U.S. subsidiary “pays all
compensation” during a temporary assignment is not inherently at odds with that
employee remaining on the parent’s “payroll” during that time. Both statements
could be true if the subsidiary reimbursed the parent for the costs of the
employee’s compensation during the temporary assignment. See generally PHC-
Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 176 (Tex. 2007)
(discussing parent–subsidiary arrangement in which subsidiary’s executives
received paychecks from parent, but funds for paychecks came from subsidiary’s
revenues).
In any case, Brenham Oil also offers no authority for the proposition that
statements in an affidavit should be struck for the reason that they that conflict
12
with other statements by the same party or its subsidiary on the same subject
matter. The fact that an affidavit submitted by a corporate party contradicts another
piece of evidence in the record, even if the other evidence is a statement of the
party’s subsidiary, does not conclusively establish that the affidavit is false or
perjurious. Cf. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988)
(per curiam) (“[I]f conflicting inferences may be drawn from a deposition and from
an affidavit filed by the same party in opposition to a motion for summary
judgment, a fact issue is presented.”). Such a conflict in the evidence merely
presents the trial court with a fact issue, see id., to be resolved with the merits of
the special appearance.
Brenham Oil argues in the alternative that the affidavit should have been
struck because paragraph 18 is conclusory. Specifically, it contends that the
assertion, “ENI S.p.A. relinquishes the right to direct and control the details of any
assigned employee’s work,” is conclusory because it is unaccompanied by
statements of relevant underlying facts. It relies on a prior decision, Golden Agri–
Resources Ltd. v. Fulcrum Energy LLC, No. 01–11–00922–CV, 2012 WL 3776974
(Tex. App.—Houston [1st Dist.] Aug. 30, 2012, pet. denied) (mem. op.), in which
this court held that the trial court did not abuse its discretion in striking certain
statements in an affidavit supporting a special appearance as conclusory. 2012 WL
3776974 at *11.
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We disagree because Golden Agri-Resources is distinguishable. Unlike the
affidavit in that case, the challenged statement in Bollini’s affidavit was supported
by additional factual statements regarding the nature of the control purportedly
exerted by the other entities. The Bollini affidavit affirmed that “an assigned
employee enters into an employment agreement with the U.S. subsidiary” and that
“the subsidiary to which an employee is assigned pays all compensation during his
or her term of assignment.” Both claims, that an agreement existed between the
assigned employee and the subsidiary and that the subsidiary paid the employee’s
wages, are “direct, unmistakable, and unequivocal as to the sworn facts, allowing
perjury to be assigned on them.” See Wright, 137 S.W.3d at 250 n.8. Indeed,
Brenham Oil’s first argument, that the statements in the affidavit are perjurious
because they contradict the statements contained in the letters from the subsidiary
to the American consulate, illustrates the manner in which allegations of perjury
may be leveled against claims that an employment agreement existed or that wages
were paid by a particular entity.
We further note the difference in the procedural postures of this appeal and
Golden Agri-Resources. As noted above, a trial court’s ruling on a motion to strike
a portion of an affidavit is reviewed for abuse of discretion. In re BP Prods., 263
S.W.3d at 117. In Golden Agri-Resources, we affirmed a ruling striking an
affidavit, finding that ruling to have been within the trial court’s discretion. See
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Golden Agri-Resources, 2012 WL 3776974 at *11. Likewise, we find no abuse of
discretion here: the trial court did not abuse its discretion in denying Brenham
Oil’s motion to strike.
B. Personal jurisdiction
Brenham Oil argues that even if the trial court did not abuse its discretion in
refusing to strike Bollini’s affidavit, the record before the trial court establishes
that the court had both general and specific jurisdiction over ENI. Since questions
of general and specific jurisdiction present different inquiries, we will address both
arguments in turn.
Texas courts may assert personal jurisdiction over a nonresident defendant if
the long-arm statute authorizes it and the exercise is consistent with due process.
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). Given
the broad scope of the Texas long-arm statute, an assertion of jurisdiction that
comports with guaranties of due process under the standard of the federal
constitution will invariably fall within the statute’s ambit. Am. Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
The touchstone of jurisdictional due process is “purposeful availment.”
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005).
Before a court may exercise jurisdiction over a nonresident defendant, there must
be “some act by which the defendant purposefully avails itself of the privilege of
15
conducting activities within the forum State, thus invoking the benefits and
protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228,
1240 (1958).
The Supreme Court of Texas has identified three significant aspects of
purposeful availment. Michiana, 168 S.W.3d at 785. “First, it is only the
defendant’s contacts with the forum that count[.]” Id. A defendant should not be
called to court in a jurisdiction solely as a result of the unilateral activity of another
party or third person. Id. “Second, the acts relied on must be ‘purposeful’ rather
than fortuitous.” Id. “Sellers who ‘reach out beyond one state and create continuing
relationships and obligations with citizens of another state’ are subject to the
jurisdiction of the latter in suits based on their activities.” Id. (quoting Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S. Ct. 2174, 2182 (1985)). “A
defendant will not be hailed into a jurisdiction solely based on contacts that are
‘random, isolated, or fortuitous.’” Id. (quoting Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 774, 104 S. Ct. 1473, 1478 (1984)). “Third, a defendant must seek
some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.” Id.
“Jurisdiction is premised on notions of implied consent—that by invoking the
benefits and protections of a forum’s laws, a nonresident consents to suit there.” Id.
“By contrast, a nonresident may purposefully avoid a particular jurisdiction by
16
structuring its transactions so as neither to profit from the forum’s laws nor be
subject to its jurisdiction.” Id.
Depending on their character and extent, a defendant’s contacts can vest a
court with either specific or general jurisdiction. Coleman, 83 S.W.3d at 806. In
order for a court to exercise specific jurisdiction, the defendant’s forum contacts
must be purposeful and the cause of action must arise from or relate to those
contacts. Id. In contrast, general jurisdiction allows a defendant to be pulled into
court even if the cause of action did not arise from or relate to a defendant’s
contacts with the forum. “General jurisdiction is present when a defendant’s
contacts with a forum are ‘continuous and systematic,’ a more demanding
minimum-contacts analysis than specific jurisdiction.” Id. In either case, the
defendant’s forum contacts must be such that it should “reasonably anticipate”
being called into a Texas court. World–Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297, 100 S. Ct. 559, 567 (1980).
Besides requiring that defendants have the necessary “minimum contacts”
with a forum, due process also requires that the exercise of jurisdiction over the
person of the defendant comport with “traditional notions of fair play and
substantial justice.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (citing Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945)). If a
defendant contends that being forced to defend a suit in the foreign forum offends
17
these notions, it is incumbent on it to present “a compelling case that the presence
of some consideration would render jurisdiction unreasonable.” Burger King, 471
U.S. at 477, 105 S. Ct. at 2185. “Only in rare cases, however, will the exercise of
jurisdiction not comport with fair play and substantial justice when the nonresident
defendant has purposefully established minimum contacts with the forum state.”
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d
223, 231 (Tex. 1991).
Whether a court has jurisdiction over a defendant is a question of law, but
one that frequently requires a trial court to resolve questions of fact before making
its determination. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794
(Tex. 2002). In this case, the trial court did not enter findings of fact and
conclusions of law in relation to its ruling on ENI’s special appearance.
Consequently, all facts necessary to support the ruling and supported by the
evidence are implied. Id. at 795. Legal questions, on the other hand, are considered
de novo. See id.
The Supreme Court of Texas has provided guidance on how to allocate the
burden of proof in a special appearance dispute. See Kelly v. Gen. Interior Constr.,
Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). The plaintiff bears the initial burden to
plead sufficient allegations to bring the nonresident defendant within the reach of
Texas’s long-arm statute. Id. at 658. ENI does not contest that Brenham Oil carried
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this initial burden. “Once the plaintiff has pleaded sufficient jurisdictional
allegations, the defendant filing a special appearance bears the burden to negate all
bases of personal jurisdiction alleged by the plaintiff.” Id. “Because the plaintiff
defines the scope and nature of the lawsuit, the defendant’s corresponding burden
to negate jurisdiction is tied to the allegations in the plaintiff’s pleading.” Id.
“The defendant can negate jurisdiction on either a factual or legal basis.” Id.
at 659. “Factually, the defendant can present evidence that it has no contacts with
Texas, effectively disproving the plaintiff’s allegations.” Id. “The plaintiff can then
respond with its own evidence that affirms its allegations, and it risks dismissal of
its lawsuit if it cannot present the trial court with evidence establishing personal
jurisdiction.” Id. (footnote omitted). Alternatively, the defendant can make a legal
argument. It can show that “even if the plaintiff’s alleged facts are true, the
evidence is legally insufficient to establish jurisdiction; the defendant’s contacts
with Texas fall short of purposeful availment; for specific jurisdiction, that the
claims do not arise from the contacts; or that traditional notions of fair play and
substantial justice are offended by the exercise of jurisdiction.” Id.
1. General jurisdiction
“A court may assert general jurisdiction over foreign (sister-state or foreign-
country) corporations to hear any and all claims against them when their
affiliations with the State are so ‘continuous and systematic’ as to render them
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essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2851 (2011); see also Daimler AG v. Bauman, 134 S. Ct.
746, 761 (2014). General jurisdiction is thus described as “dispute-blind.” PHC-
Minden, 235 S.W.3d at 168. “It involves a court’s ability to exercise jurisdiction
over a nonresident defendant based on any claim, including claims unrelated to the
defendant’s contacts with the state.” Id. (citation omitted) “Usually, ‘the defendant
must be engaged in longstanding business in the forum state, such as marketing or
shipping products, or performing services or maintaining one or more offices there;
activities that are less extensive than that will not qualify for general in personam
jurisdiction.’” Id. (quoting 4 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1067.5 (2007)). As such, a general jurisdiction inquiry involves a “more
demanding minimum contacts analysis, with a substantially higher threshold” than
a specific jurisdiction inquiry. Id. In conducting the contacts analysis, “we do not
view each contact in isolation.” Coleman, 83 S.W.3d at 809. “All contacts must be
carefully investigated, compiled, sorted, and analyzed for proof of a pattern of
continuous and systematic activity.” Id.
To begin, we note that the affidavit of Marco Bollini, with which ENI
supported its special appearance, contained a laundry list of denials. Bollini denied,
among other things, that ENI:
 is registered to do business in Texas;
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 maintains an agent who is authorized to receive service of process;
 conducts “any operations in Texas”;
 sells goods or provides services in Texas;
 directs advertising toward Texas residents;
 pays any employees “that reside in Texas”;
 has any employees in Texas over which it maintains the right to
direct or control the details of their work;
 maintains an office or any other facility in Texas
 owns or leases any real or personal property in Texas; or,
 has a telephone listing, post office box, or mailing address in
Texas.
Bollini acknowledged, however, that ENI has several direct or indirect American
subsidiaries that maintain offices or have their headquarters in Texas. At the same
time, he averred that ENI: “does not direct or control the day-to-day operations of
any of these subsidiaries or their employees;” that it maintains separate bank
accounts, accounting systems, and payroll systems; and that its subsidiaries do not
commingle corporate assets.
In support of its contention that ENI is subject to general jurisdiction in
Texas, Brenham Oil notes evidence of a trip by ENI executives to an industry
conference in Houston where they met with representatives of several oil
companies, as well as two trips by ENI’s CEO to Texas for business meetings and
speaking engagements. Brenham further observes that on 39 occasions between
2009 and 2012, other ENI employees visited Texas on business trips for the
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company, as evidenced by numerous letters of invitation from Texas subsidiary
ENI US Operating Co. to the American consulate in Milan. The stated purpose of
these visits generally was to work with or advise ENI’s Texas subsidiaries. Finally,
Brenham points to evidence that ENI assumed an active role in negotiating a lease
of Houston office space on behalf of ENI US Operating Co. ENI employees
traveled to Houston to survey the property and offer support in making the new
offices match the “ENI standard.” ENI also required its subsidiary to submit a cost
estimate.
Although Brenham Oil emphasizes these ENI activities on behalf of its
subsidiaries as a basis for jurisdiction, it does not deny that the subsidiaries are
separate corporate entities or contend that the subsidiaries are merely ENI’s “alter
egos.” See Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 118 (Tex.
App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (plaintiffs did not argue alter
ego theory, under which subsidiaries’ contacts are attributable to parent, on
appeal).
The number of visits by ENI executives to Texas to attend industry
conferences and meet with other oil companies matters little in determining
whether ENI was essentially at home in Texas. See Helicopteros Nacionales de
Colom., S.A. v. Hall, 466 U.S. 408, 416–18, 104 S. Ct. 1868, 1873–74 (1984)
(explaining that single trip by CEO to Houston for purpose of negotiating contract
22
“cannot be described or regarded as a contact of a ‘continuous and systematic’
nature”). “Occasional travel to Texas is insufficient by itself to establish
continuous and systematic contact with the state.” Waterman S.S. Corp. v. Ruiz,
355 S.W.3d 387, 410 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). In
Helicopteros, a history of more numerous and systematic visits was deemed
inadequate to uphold a Texas court’s assertion of general jurisdiction. There, the
United States Supreme Court found that a Colombian helicopter operator which
dispatched managers and technicians to view the Texas plants of its helicopter
manufacturer and regularly sent its pilots to the state for training was not subject to
general jurisdiction in Texas. Helicopteros, 466 U.S. at 418, 104 S. Ct. at 1874. As
the Colombian company had no other operations in the state, see id. at 411, 104 S.
Ct. at 1870–71, these visits by its employees were inadequate to vest Texas courts
with general jurisdiction. Id. at 418, 104 S. Ct. 1874.
Nevertheless, Brenham Oil contends that the visits by ENI employees to its
Texas subsidiaries are contacts that establish general jurisdiction. Brenham Oil
insists that the invitation letters to the consulate written by ENI US Operating Co.
Inc. state the truth about the ENI employees who visited Texas. It maintains that
these letters establish that the employees remained on the payroll and under the
control of ENI, thus defeating ENI’s secondment theory. Accordingly, Brenham
Oil relies on several cases affirming general jurisdiction over parent companies
23
that paid and controlled employees in Texas. However, Bollini’s affidavit
established that ENI employees entered into employment agreements with ENI
subsidiaries, which paid all compensation for the employees. He further averred
that ENI S.p.A. relinquished the right to direct and control the details of those
employees’ work. “Whether an employee is seconded to a borrowing employer is a
question of law that depends upon factual determinations of whether the borrowing
employer has the right to direct and control the borrowed employee with respect to
the details of the particular work.” Golden Agri-Resources, 2012 WL 3776974 at
*11 (citing St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2003)). Under
Texas law, seconded employees are considered employees of the borrowing
employer. Deloitte & Touche Neth. Antilles & Aruba v. Ulrich, 172 S.W.3d 255,
265–66 (Tex. App.—Beaumont 2005, pet. denied). Here, Bollini’s affidavit
supports a factual determination that the ENI subsidiaries had the right to direct
and control the work of the borrowed employees. BMC Software, 83 S.W.3d at
795. Accordingly, the record supported a legal determination that the visiting
employees became the employees, though borrowed, of the subsidiaries, and did
not give rise to contacts with Texas. See Deloitte & Touche, 172 S.W.3d at 265–
66.
Brenham Oil relies further on Villagomez v. Rockwood Specialties, Inc., 210
S.W.3d 720 (Tex. App.—Corpus Christi 2006, pet. denied), for the proposition
24
that, apart from an alter ego theory under which a subsidiary is fused with its
parent for purposes of contacts analysis, a parent’s ownership of a subsidiary and
its activities directed at that subsidiary in the forum state are themselves contacts
that may establish general jurisdiction. Brenham Oil thus contends that ENI’s
practice of dispatching its employees from Italy to Texas to advise its Texas
subsidiaries, as well as negotiating a lease of Texas real estate on a subsidiary’s
behalf, are forum contacts that subject ENI to general jurisdiction in this state.
Furthermore, Brenham Oil argues that the visits by ENI employees to Texas to
work with ENI subsidiaries demonstrate that “ENI continuously and systematically
sent its employees to Texas for various length of time.”
A parent corporation’s ordinary, “normal,” or “routine” interactions with its
subsidiaries, outside an alter ego theory, do not alone suffice to subject the parent
to jurisdiction in the state of the subsidiary. Preussag, 16 S.W.3d at 118–120, 123.
In Preussag, the plaintiffs contended that a German holding company was subject
to jurisdiction based on its system of ordering and facilitating the operations of its
subsidiaries in Texas, which the court characterized as its “normal, corporate
actions within the Preussag group system.” Id. at 118. These actions were
“occasional audits; unified financial procedures for the annual reporting required
by German law; a unified ‘banking’ system, involving loans and intercompany
payments and requiring some deposits into the subsidiaries’ Texas bank accounts;
25
parent approval of large expenditures and budgets; consideration of adopting a
group benefits system; and the communications and visits that accompany these
activities.” Id. at 118–19. Absent any alter ego theory, which the appellees had
specifically disavowed, this court concluded that Preussag was not subject to
jurisdiction in Texas on the basis of its routine interactions with its subsidiary. Id.
at 123–25.
Here, the undisputed evidence shows that over a period of more than three
years, from October 2008 to March 2012, ENI employees took 39 trips to Texas
for various purposes. For example, employees traveled to Texas for a “meeting to
review regional operations of Eni Subsidiaries,” to provide “consulting services to
ENI U.S. entities” in support of business negotiations, to “conduct training and
technology support,” and to “review U.S. market and operations.” Furthermore,
implying a finding of all facts necessary to support the trial court’s ruling that are
supported by the evidence, BMC Software, 83 S.W.3d at 795, the evidence before
the trial court supported the conclusion that ENI had some involvement with a
lease of real property in Texas by one of its subsidiaries, but ENI’s direct
participation was limited to approving expenditures and ensuring that building
security guidelines were met.
This evidence does not demonstrate that these activities relating to the
support and oversight of ENI’s Texas subsidiaries exceeded the “normal parent–
26
subsidiary relationship.” Id. at 125. In Preussag, the trial court deemed a visit to
inspect and other monitoring activities—such as periodic audits and approving
large expenditures—a component of normal parent–subsidiary relations which
would not subject the parent to general jurisdiction in Texas. Id. at 124–25. ENI’s
actions regarding its subsidiary’s leased office property are no different.
Furthermore, although the descriptions contained in Bollini’s declaration, for
example, “consulting services,” are vague, the evidence does not demonstrate that
these activities went beyond ordinary parent–subsidiary dealings. Accordingly,
these visits were not shown to be continuous and systematic contacts with Texas.
See id.
Importantly, in Villagomez, the court did not hold that ownership of a
subsidiary alone is sufficient to subject the parent corporation to general
jurisdiction. See Villagomez, 210 S.W.3d at 732 (explaining that while “ownership
of a local-operating subsidiary may not be enough for minimum contacts outside
the context of alter ego or similar conceptual devices, it is nonetheless error to
exclude this legitimate forum contact from consideration in toto with the
defendant’s other forum contacts”). On the contrary, the court considered the
particular dealings of the parent with its subsidiary in order to arrive at its
minimum-contacts findings. See id. at 734–40. Significantly, the parent corporation
27
in Villagomez had directly contracted to engage a president for its Texas
subsidiary. The contract said:
We are pleased to confirm our offer of employment as President and
Managing Director of our Clay Additives business on a full-time and
exclusive basis. For purposes of facilitating your employment, you
will be assigned to and employed by our subsidiary . . . . It is our
understanding that you will commence employment on or before
August 20, 2001. You will have direct reporting responsibility to the
President of Rockwood Specialties, Inc. (hereinafter “Rockwood”).
We reserve the right, at our discretion, to change your responsibilities
or job title at any time.
Id. at 734. Although the person hired to serve as president considered the
subsidiary his employer, the court found it clear, “both in practice and by written
agreement,” that he was “directly accountable” to the parent. Id. at 742. As the
court explained, the parent had contracted directly with the president to make him
“ultimately accountable for the profitability of [the subsidiary’s] business in Texas
. . . .” Id. In doing so, the parent “extended directly into Texas its business of
owning other businesses and directly facilitating their profitability.” Id. Rather than
have the president contract with the subsidiary, the parent company “chose to enter
Texas to contract and interact” with the president “directly in its corporate capacity
as [the parent], not from behind the veil of [the subsidiary’s] board of directors.”
Id.
In sum, the general jurisdiction finding in Villagomez rested in large part on
the parent’s decision to contract directly with the person it wanted at the helm of its
28
Texas subsidiary, to require that person to report directly to the parent’s president,
and to retain for itself the right to remove him from that position. See id. The facts
in this case are easily distinguishable from those in Villagomez. Here, ENI
submitted evidence in the form of Bollini’s affidavit that supports an implied
finding that ENI did not retain the right of control over any employee working for
its US subsidiaries. See BMC Software, 83 S.W.3d at 795. Accordingly, we do not
view ENI’s actions directed toward its subsidiaries as sufficient minimum contacts
to subject ENI to general jurisdiction. See Preussag, 16 S.W.3d at 124–25.
Finally, Brenham Oil attempts to distinguish Helicopteros on the basis that
the nature of ENI’s contacts with Texas support general jurisdiction because those
contacts were “central” to ENI’s business. To support its argument, Brenham Oil
points to two cases involving bank defendants that maintained no offices or
employees in the forum, but nevertheless made loans to residents in the forum. See
Lakin v. Prudential Secs., Inc., 348 F.3d 704, 708–10 (8th Cir. 2003); Provident
Nat’l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434 (3d Cir. 1987); see also
RSR Corp. v. Siegmund, 309 S.W.3d 686, 708 (Tex. App.—Dallas 2010, no pet.).
Although the bank defendants argued that the loans were insufficient to establish
general jurisdiction because the total loan amounts represented a small fraction of
their total loan portfolios, the courts deemed general jurisdiction appropriate,
noting that the lines of credit at issue were “central to the conduct of the [banks’]
29
business.” Lakin, 348 F.3d at 709; Provident Nat’l Bank, 918 F.2d at 438. Thus,
Brenham Oil reasons, general jurisdiction is appropriate here because visits to
Texas by ENI employees are “central” to ENI’s business. Brenham Oil does not
argue how the visits of ENI S.p.A.’s employees to Texas are “central” to its
business, other than by stating that the visits constitute contacts closer to those of
the bank defendants in Lakin and Provident Nat’l Bank than those of the defendant
in Helicopteros.
As we concluded above, the record supports a determination that the 39
visits by ENI employees described in Bollini’s supplemental declaration do not
exceed the scope of the normal parent–subsidiary relationship. See Preussag, 16
S.W.3d at 124–25. The record similarly supports a determination that those visits
were not “central” to ENI’s business in the same way that making loans is central
to the business of a bank. Cf. Lakin, 348 F.3d at 709–10. Moreover, the Lakin and
Provident Nat’l Bank courts did not confine their analysis to whether the
defendants’ contacts with the forum were “central” to their business. Rather, those
courts properly focused on whether the banking activity with the forum was
“continuous and systematic,” Lakin, 348 F.3d at 709, observing that the banks’
actions constituted “substantial, ongoing, and systematic activity” in the forum.
Provident Nat’l Bank, 819 F.2d at 438. By contrast, Bollini’s supplemental
declaration indicated ENI employees took only 39 visits to Texas between 2008
30
and 2012. Such visits are a far cry from the “continuous and systematic” contacts
of the bank defendants in Lakin and Provident Nat’l Bank. See Lakin, 348 F.3d at
709 (determining that bank defendant made loans that “can represent the
establishment of lending relationships with hundreds, if not thousands of [the
forum’s] residents”); Provident Nat’l Bank, 819 F.2d at 438 (observing that bank
defendant “conducted business regarding [the] account with [a bank in the forum]
every business day”). Thus, unlike the bank accounts held and accessed
continuously in a forum state, the periodic visits of ENI employees to Texas
“cannot be described or regarded as a contact of a ‘continuous and systematic’
nature.” Helicopteros, 466 U.S. at 416, 104 S. Ct. at 1873.
In sum, the record supports implied findings necessary to uphold the legal
determinations that ENI does not operate in Texas, and that its activities on behalf
of Texas subsidiaries were confined to normal parent–subsidiary relations. See
BMC Software, 83 S.W.3d at 795; Preussag, 16 S.W.3d at 126. Viewing all of the
contacts together, Am. Type Culture Collection, 83 S.W.3d at 809, we hold that
ENI’s contacts with Texas were not shown to be sufficiently continuous and
systematic as to render it “essentially at home” in Texas. See Goodyear, 1315 S.
Ct. at 2851. Therefore, Brenham Oil failed to demonstrate that ENI is subject to
general jurisdiction in Texas.
31
2. Specific jurisdiction
While general jurisdiction is dispute-blind, specific jurisdiction takes into
account the relationship among the defendant, the forum, and the litigation. Moki
Mac, 221 S.W.3d at 575–76. Specific jurisdiction “arises when (1) the defendant
purposefully avails itself of conducting activities in the forum state, and (2) the
cause of action arises from or is related to those contacts or activities.” Kelly, 301
S.W.3d at 658. “[F]or a nonresident defendant’s forum contacts to support an
exercise of specific jurisdiction, there must be a substantial connection between
those contacts and the operative facts of the litigation.” Moki Mac, 221 S.W.3d at
585.
Brenham Oil’s petition named one cause of action against ENI: aiding and
abetting the torts of TGS. However, these allegations were not tied to factual
assertions. The only references to ENI in the fact section of Brenham Oil’s petition
concern non-tortious conduct. For example, Brenham Oil alleged that ENI was
negotiating a sale of seismic data with TGS, it ultimately was awarded the right to
drill in Block 2 from Togo, it concluded the purchase of seismic data from TGS
only after obtaining rights in Block 2, and it is presently drilling off the Togolese
coast.
The petition also alleged that at “all times material to this lawsuit, Eni S.p.A.
was doing business in Houston, Harris County, Texas.” This was sufficient to carry
32
Brenham Oil’s initial burden of pleading jurisdictional facts. See George v.
Deardorff, 360 S.W.3d 683, 687 (Tex. App.—Fort Worth 2012, no pet.); Huynh v.
Nguyen, 180 S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Because Brenham Oil alleged sufficient jurisdictional facts in its petition, the
burden shifted to ENI to negate all bases of jurisdiction alleged. See Kelly, 301
S.W.3d at 658. Launching a factual challenge to the jurisdictional allegations, ENI
attached the Bollini affidavit to its special appearance. The affidavit, by way of
numerous negations, effectively denied that ENI does business in Texas. For
example, it affirmed that it does not have a mailing address or office in the state,
does not sell goods or services in Texas, and does not direct advertising towards
Texas. The affidavit also addressed the allegations in Brenham Oil’s petition
regarding ENI’s relationship with TGS:
With regard to the facts alleged by the Plaintiff, Eni S.p.A. employees
communicated with one employee of TGS-NOPEC Geophysical
Company (“TGS”), Sara Stephens, who is based in Texas, regarding a
license for the use of geophysical data related to the Togolese
Republic (“Togo”). Ms. Stephens traveled to Milan, Italy in early
2010 for the only meeting that took place related to the licensing of
this data. No Eni S.p.A. employee ever traveled to Texas in
connection with the data licensing. All of these employees were
located in Italy at the time and still are located there.
....
Eni S.p.A. has never committed a tort in whole or in part in Texas.
33
These statements in Bollini’s affidavit corresponded to the factual allegations in
Brenham Oil’s petition. They admit that ENI negotiated for and purchased seismic
data from TGS. Apart from this non-tortious conduct, Brenham Oil’s petition was
devoid of specific Texas-linked factual allegations regarding the alleged aiding and
abetting. Given that the defendant’s burden to negate jurisdiction is “tied to the
allegations in the plaintiff’s pleading,” id., ENI adequately negated the
jurisdictional allegations by denying particular associations with Texas and
concluding with the factual assertion that it had “never committed a tort in whole
or in part in Texas.”
Once ENI had offered evidence to negate the jurisdictional allegations
contained in the petition, the burden returned to Brenham Oil to “respond with its
own evidence that affirms its allegations.” Id. at 659. In its reply to ENI’s special
appearance, Brenham Oil pointed to evidence illustrating the history of
negotiations between ENI and TGS over the data, the intense pursuit of the deal
with ENI by TGS’s AMEAP employees, and the fact that ENI ultimately
purchased the data after it had been awarded the concession from Togo. In
particular, Brenham Oil relied on ENI’s communications with TGS employees in
Houston. For example, although Stephens was based in London, her emails to ENI
made clear that she was working as part of a team with leadership in Houston.
Occasionally, ENI employees communicated by email with TGS employees in
34
Houston, such as Santana. When ENI had trouble accessing the purchased data
from TGS over the Internet, TGS sent a hard drive from Houston to ENI’s Milan
office. This evidence, however, failed to show “a substantial connection between
those contacts,” i.e. the negotiations with TGS to acquire data, “and the operative
facts of the litigation.” See Moki Mac, 221 S.W.3d at 585.
In Moki Mac, Texas parents sued a Utah river-rafting outfitter for negligence
after their son died on one of the company’s trips to the Grand Canyon in Arizona.
Id. at 573. The outfitter filed a special appearance contesting personal jurisdiction.
Id. The Supreme Court of Texas ultimately found that the state’s courts lacked
specific jurisdiction over the parents’ claims. Id. at 588. While the outfitter had
directed advertising to Texas that the parents asserted they relied upon, the Court
reasoned that the operative facts of their claims did not pertain to the advertising
but rather to what occurred during the outing in Arizona. See id. at 584–88. The
Court wrote:
Certainly on a river rafting trip safety is a paramount concern, and we
accept as true the [parents’] claim that [their son] might not have gone
on the trip were it not for [the outfitter’s] representations about safety.
However, the operative facts of the [parents’] suit concern principally
the guides’ conduct of the hiking expedition and whether they
exercised reasonable care in supervising [the son]. The events on the
trail and the guides’ supervision of the hike will be the focus of the
trial, will consume most if not all of the litigation’s attention, and the
overwhelming majority of the evidence will be directed to that
question. Only after thoroughly considering the manner in which the
hike was conducted will the jury be able to assess the [parents’]
misrepresentation claim.
35
Id. at 585. Thus, Moki Mac teaches that identifying the operative facts of a claim in
order to analyze whether a court has specific jurisdiction is tantamount to
identifying the facts that “will be the focus of the trial.” See id.
Brenham Oil alleged that ENI aided and abetted the alleged torts of TGS. In
broad terms, it accused ENI of “substantially assist[ing] and/or encourag[ing] TGS
to make false . . . and/or defamatory statements to Togolese officials regarding
Brenham Oil & Gas,” and of “substantially assist[ing] TGS in causing the tortious
interference.” As such, the focus at a trial on this claim—i.e., the operative facts of
the claim—would be acts or communications assisting or encouraging TGS to
malign Brenham Oil or otherwise interfere with its prospective business relations
with Togo. However, Brenham Oil neither alleged nor offered evidence of
particular tortious acts or communications by ENI directed at TGS, Brenham Oil,
or Texas. See Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 437 (Tex.
1982) (holding that court lacked specific jurisdiction over foreign defendants when
“no specific acts of conspiracy or misrepresentations” were attributed to them).
The Texas-linked evidence relied upon by Brenham Oil pertains only to ENI’s
nontortious conduct in the purchase of seismic data from TGS. These forum
contacts are not the operative facts of the litigation and therefore are not contacts
that will support an exercise of specific jurisdiction. See Moki Mac, 221 S.W.3d at
585.
36
Nevertheless, Brenham Oil relies on four cases to support its argument that
the trial court had specific jurisdiction over this case. The first case, H. Heller &
Co., Inc. v. Louisiana-Pacific Corp., is inapposite because it involved a post-
judgment attack on a foreign judgment and therefore involves a highly deferential
standard of review. 209 S.W.3d 844, 849 (Tex. App.—Houston [14th Dist.] 2006,
pet. denied) (requiring “the judgment debtor to prove by clear and convincing
evidence that the foreign judgment should not be given full faith and credit”)
Each of the other three cases emphasized that specific jurisdiction was
proper because the asserted claims arose directly from the defendants’ contacts
with Texas that also constituted the operative facts of the litigation. See Paul
Gillrie Inst., Inc. v. Universal Computer Consulting, Ltd., 183 S.W.3d 755, 763–64
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding in a libel suit that an out-
of-state publisher’s conduct gave rise to plaintiff’s claims because the distribution
of defamatory statements actually took place in Texas); see also Nogle & Black
Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 285 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (holding that a nonresident defendant’s contract with a Texas-based
engineer to design an inspection procedure for a wing spar supported specific
jurisdiction when the plaintiffs asserted negligence in the design and inspection of
the wing spar); Glenco Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157,
167 (Tex. App.—Fort Worth 2008, no pet.) (holding that telephone board meetings
37
involving Texas participants were the operative facts of the case and thus showed
purposeful availment). Unlike the plaintiffs in the foregoing cases, Brenham Oil
does not allege forum contacts that are substantially connected to the operative
facts of the litigation.
Because Brenham Oil’s claims against ENI do not arise from the alleged
forum contacts, the trial court did not err by dismissing them for lack of specific
jurisdiction. See Kelly, 301 S.W.3d at 659. Brenham Oil’s issue is overruled.
II. TGS’s motion to dismiss for forum non conveniens
Brenham Oil also asserts that the trial court erred by granting TGS’s motion
to dismiss for forum non conveniens. It argues that Togo is neither an available nor
an adequate forum in which to bring its claim against TGS and that the traditional
private- and public-interest factors favor litigation in Harris County.
An appellate court will reverse a trial court’s forum non conveniens
determination only if the record shows a clear abuse of discretion. See Quixtar Inc.
v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam). A
trial court abuses its discretion when it acts without reference to guiding rules or
principles. Id. If the trial court has considered all the relevant private- and public-
interest factors, and its balance of the factors is a reasonable one, its decision
deserves substantial deference. Id. An appellate court should not conduct a de novo
review by reweighing each of the factors. See id. at 35 (explaining that appellate
38
court erred when it “mechanically re-weighed the [forum non conveniens factors]
under the scope of an excessive burden of proof”).
“The ‘central focus of the forum non conveniens inquiry is convenience.’”
Id. at 33 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S. Ct. 252,
262 (1981)). The doctrine permits courts to dismiss a claim based on practical
consideration that affect litigants, witnesses, and the justice system. See id. at 34–
35. It allows a court to dismiss an impracticable action even when it has
jurisdiction and venue as to the parties and claims. See Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 507, 67 S. Ct. 839, 842 (1947); In re Smith Barney, Inc., 975 S.W.2d
593, 596 (Tex. 1998).
In deciding motions to dismiss based on forum non conveniens, Texas courts
follow the analysis of the United States Supreme Court in Gulf Oil. See Quixtar,
315 S.W.3d at 33–34; In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 677–78 (Tex.
2007) (plurality op.); Benz Grp. v. Barreto, 404 S.W.3d 92, 96 (Tex. App.—
Houston [1st Dist.] 2013, no pet.). The parties here agree that the dismissal was
predicated on the common law, as opposed to the Texas forum non conveiens
statute, but courts in Texas “regularly consider United States Supreme Court
precedent in both our common law and statutory forum non conveniens cases.”
Quixtar, 315 S.W.3d at 32.
39
The burden of proof on a forum non conveniens motion lies with the
defendant. Id. at 31. “A defendant seeking forum non conveniens dismissal
‘ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum.’” Id.
This burden is relaxed when the plaintiff is not a resident of the forum but is
typically at full strength when the plaintiff is a forum resident. Id. Nonetheless, the
burden is also diminished when “the plaintiff is a corporation that has chosen to
conduct extensive business in foreign countries and then is injured or defrauded in
the foreign venue as a result of those business transactions.” Vinmar Trade Fin.,
Ltd. v. Util. Trailers de Mex., S.A. de C.V., 336 S.W.3d 664, 678 (Tex. App.—
Houston [1st Dist.] 2010, no pet.) (citing DTEX, LLC v. BBVA Bancomer, S.A.,
508 F.3d 785, 795 (5th Cir. 2007)). Accordingly, even though Brenham Oil is a
Texas corporation with its headquarters in Texas, we afford less deference to its
choice of forum because its alleged injuries arose from its travels to Togo in search
of an oil concession in foreign waters.
Before a case can be dismissed for forum non conveniens, the court must
identify another forum that could hear the case. Reyno, 454 U.S. at 254 n.22, 102
S. Ct. at 265 (1981). The party seeking dismissal bears the initial burden of
showing that the proposed alternative forum is available and adequate. Quixtar,
315 S.W.3d at 33. Once a court has determined that there is an adequate alternative
forum that may hear the cause, it must weigh private- and public-interest factors to
40
determine whether forum non conveniens dismissal is appropriate. See Quixtar,
315 S.W.3d at 33–34.
A. Available and adequate alternative forum
“A ‘foreign forum is available when the entire case and all the parties can
come within the jurisdiction of that forum.’” Vinmar, 336 S.W.3d at 674 (quoting
Sarieddine v. Moussa, 820 S.W.2d 837, 841 (Tex. App.—Dallas 1991, writ
denied)). “[A]n alternative forum is adequate if the parties will not be deprived of
all remedies or treated unfairly, even though they may not enjoy the same benefits
as they might receive in an American court.” Pirelli Tire, 247 S.W.3d at 678
(internal quotations omitted); accord Vinmar, 336 S.W.3d at 674. “The substantive
law of the foreign forum is presumed to be adequate unless the plaintiff makes
some showing to the contrary, or unless conditions in the foreign forum made
known to the court, plainly demonstrate that the plaintiff is highly unlikely to
obtain basic justice there.” Vinmar, 336 S.W.3d at 674 (quoting DTEX, 508 F.3d at
796).
The trial court entered the following findings of fact and conclusions of law
pertaining to the availability and adequacy of a Togolese forum:
 “Brenham’s claims against TGS may be tried in the Republic to
[sic] Togo.”
 “The Republic of Togo offers an adequate remedy for Brenham’s
claims against TGS.”
41
 “The Republic of Togo is an available alternative forum.”
 “Jurisdiction over Brenham and TGS exists in the Republic of
Togo.”
Brenham Oil, however, argues that Togo is neither an available forum nor an
adequate forum to hear its tortious interference claim against TGS.
1. Availability of forum
Relying on the declaration of its expert witness, former Togolese judge
Kokouvi Pius Agbetomey, Brenham Oil contends that Togo is not an alternative
available forum because the substantive law of the forum precludes a Togolese
court from exercising jurisdiction over this dispute. Although TGS stipulated that it
would submit to the jurisdiction of a Togolese court for purposes of resolving this
dispute, Brenham Oil points to Agbetomey’s statement that a Togolese court
nevertheless lawfully could not exercise jurisdiction over two foreign corporations:
A Togolese judge may not, without risking a violation of said
procedural provisions [of the Togolese Code of Civil Procedure],
accept a referral of this nature concerning a civil case with regard to
two subjects incorporated in the United States that do not have their
domiciles in Togo.
Brenham Oil asserts that TGS’s submission to the jurisdiction of Togo does not
satisfy the availability prong. Thus, Brenham Oil concludes that TGS failed to
satisfy its burden to show that Togo is an available forum.
Brenham’s evidence notwithstanding, TGS offered the declaration of its own
expert witness, Togolese attorney Vienyemenu Florent Jonas Sokpoh, who reached
42
the opposite conclusion on the jurisdictional question. Brenham Oil contends that
Sokpoh’s declaration could not be considered by the court because it was not
authenticated, but when determining an issue of foreign law, a trial court may
consider “any material or source, whether or not admissible.” TEX. R. EVID. 203
(providing procedures for determining foreign law).
Sokpoh opined that “in all cases, the exception for the lack of jurisdiction in
Togolese law must be raised before any basic defense or any flat refusal.” Thus, he
concluded, “[i]f Brenham were to file suit in the Togolese courts, they would not
be able to declare themselves without jurisdiction if neither of the parties raises this
exception of lack of jurisdiction.” Furthermore, Sokpoh asserted that Togo’s
Hydrocarbon Code expressly requires Brenham Oil’s claims to be filed in Togo. In
the declaration, Sokpoh explained his reasoning on both points, providing citations
to the Togolese Code of Civil Procedure, Hydrocarbon Code, and Penal Code
(which, he explained, could be referenced by analogy for questions of civil law”).
Brenham Oil disagrees with Sokpoh’s legal opinions, arguing that his
interpretation of the Togolese Hydrocarbon Code is mistaken. Notably, however,
Agbetomey did not give an opinion about the disputed provisions of the
Hydrocarbon Code. When conducting a common-law forum non conveniens
analysis, courts have considered the uncontroverted testimony of a foreign law
expert sufficient to support a trial court’s determination that a foreign forum is
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available. See Robinson v. TCI/US West Comms. Inc., 117 F.3d 900, 908 (5th Cir.
1997); accord Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1282–83 (11th
Cir. 2001). Brenham Oil further argues that Sokpoh was unqualified and
unreliable, but it did not object to his qualifications or reliability at the trial court
level. As a result, Brenham Oil has waived any error on these grounds. TEX. R.
APP. P. 33.1(a); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 411 (Tex.
1998) (holding that a challenge to the reliability of scientific expert witnesses must
be timely made to preserve error).
Finally, Brenham Oil argues that Togo should not be considered an available
forum because, according to Agbetomey, the courts of Togo lack authority to
compel the testimony of Togolese officials like Siah who participated in the
negotiations with Brenham Oil. This argument is misdirected. The “availability”
component of a forum non conveniens analysis centers on whether “the entire case
and all the parties can come within the jurisdiction of that forum.” See Vinmar, 336
S.W.3d at 674. The availability of compulsory process for the attendance of
witnesses is properly addressed as a private-interest factor. See In re Gen. Elec.
Co., 271 S.W.3d 681, 688 (Tex. 2008) (“Ordinarily, an alternate forum is shown if
the defendant is ‘amenable to process’ in the other jurisdiction.”); Gulf Oil, 330
U.S. at 508, 67 S. Ct. at 843 (listing “availability of compulsory process for
attendance of unwilling witnesses” as a private-interest factor).
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We conclude that the trial court did not abuse its discretion in relying upon
TGS’s expert opinion evidence to conclude that a Togolese forum was available.
See Robinson, 117 F.3d at 908.
2. Adequacy of forum
Brenham Oil presents several reasons why it contends Togo is an inadequate
forum to try its tortious interference claim. It first asserts that “the enforceability of
a judgment in Togo is questionable” and that “TGS provided no evidence beyond
an unsupported conclusion in the Court’s findings and conclusions that any
judgment would be able to be enforced.” This challenge fails to account for the
legal presumption that the substantive law of the foreign forum is presumed to be
adequate unless the plaintiff makes some showing to the contrary, or unless
conditions in the foreign forum made known to the court plainly demonstrate that
the plaintiff is highly unlikely to obtain basic justice there. Vinmar, 336 S.W.3d at
674. Brenham Oil identifies nothing in the record to overcome this presumption
and support its contention that enforceability of a judgment is questionable.
Brenham Oil also argues that Togo is an inadequate forum because,
according to its expert Agbetomey, Togolese courts may not compel a foreign
national to testify during a civil trial and Togo does not try civil cases before juries.
The latter consideration, standing alone, does not render an alternative forum
inadequate. See Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34, 45 (Tex.
45
App.—Houston [1st Dist.] 2010, pet. denied). The former consideration, as
previously explained, is properly examined as one of the private-interest factors.
See Gulf Oil, 330 U.S. at 508, 67 S. Ct. at 843.
We conclude that the trial court did not err in finding that Togo is an
available and adequate alternative forum.
B. Private- and public-interest factors
Once a court has determined that there is an adequate alternative forum that
may hear the cause, it must weigh the canonical private- and public-interest factors
enunciated in Gulf Oil to determine whether forum non conveniens dismissal is
appropriate. See Quixtar, 315 S.W.3d at 33–34. When reviewing the trial court’s
decision to dismiss based on forum non conveniens, we must not conduct a de
novo review of the evidence by mechanically reweighing each forum non
conveniens factor. Quixtar, 315 S.W.3d at 35. The United States Supreme Court
has refused to “lay down a rigid rule to govern discretion,” noting that “[e]ach case
turns on its facts.” Reyno, 454 U.S. at 249; 102 S. Ct. at 263. If “central emphasis
were placed on any one factor, the forum non conveniens doctrine would lose
much of the flexibility that makes it so valuable.” Id. at 249–50; 102 S. Ct. at 263.
Admittedly, the various factors weighed by the trial court “may be difficult to
quantify.” Quixtar, 315 S.W.3d at 35.
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1. Private-interest factors
The private-interest factors are: (1) the relative ease of access to sources of
proof; (2) the availability of compulsory process for attendance of unwilling, and
the cost of obtaining attendance of willing witnesses; (3) the possibility of view of
premises, if view would be appropriate to the action; (4) the enforceability of a
judgment once obtained; and (5) all other practical problems that make trial of a
case easy, expeditious and inexpensive. Gulf Oil, 330 U.S. at 508, 67 S. Ct. at 843;
Quixtar, 315 S.W.3d at 33. With respect to these private-interest factors, Brenham
Oil contends that the majority of witnesses are located in Texas, the majority of the
evidence is located in Texas, the alleged acts of tortious interference occurred in
Texas or were supervised and directed from Texas, and a Togolese trial would be
inordinately expensive. It relies on the fact that both parties are headquartered in
Texas and that a large amount of discovery has already taken place while the case
has been pending in the trial court. Furthermore, Brenham Oil argues that,
according to its expert witness, the Togolese courts may not compel foreign
nationals or the Togolese government officials to testify.
We do not agree that the trial court abused its discretion in weighing the
private-interest factors. Brenham Oil’s arguments focus on what it claims is the
superior availability of evidence and witnesses in Houston, as well as the greater
convenience to the parties of trying the case in a jurisdiction where they are
47
headquartered. While Brenham Oil is correct that both its own witnesses, such as
Gaille and Hardy, and the members of TGS’s AMEAP team who are based in
Houston, such as Hicks and Abdallah, are convenient to Houston and subject to
service of a subpoena, there are other material witnesses who are located in Togo
and Israel. The Togolese government was assisted at the negotiations with
Brenham Oil by Yair Green, an Israeli lawyer, and Raphael Edery, an Israeli
economic adviser. It is undisputed that Siah and his superior Dammipi Noupokou,
the Togolese Minister of Energy and Mines, are located in Togo. TGS asserts that
it is unable to obtain vital defense testimony in a Texas court because the Togolese
witnesses refused to participate in discovery in Texas, and their testimony could
not be secured through the Texas court because Togo is not a party to the Hague
Convention on the Taking of Evidence Abroad. As shown in its findings of fact
and conclusions of law, the trial court took the location of foreign witnesses into
account, writing, “all material witnesses other than Brenham’s witnesses, are
located in Togo or Israel, and this Court has virtually no means to compel their
testimony; the individual responsible for sending the correspondence to Togo,
which is the basis for Brenham’s claim against TGS, is located in the United
Kingdom, and is no longer employed by any TGS entity . . . .”
TGS stressed before the trial court that securing the testimony of Siah and
Noupokou would be critical for its defense. To recover for tortious interference
48
with prospective business relations, the plaintiff must demonstrate that the alleged
interference prevented the plaintiff from securing a contract. See Richardson-
Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 475–76 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied) (delineating the tort’s elements). TGS
argued that without the testimony of the Togolese decisionmakers, Siah and
Noupokou, it would be unable to explore the causes of Togo’s decision to award
Block 2 to ENI rather than Brenham Oil.
Brenham Oil’s contention that the alleged tortious interference occurred in
Houston notwithstanding, it is undisputed that, if the Togolese were in fact
influenced by Welch’s negative letter to Siah, then the letter must have swayed
Togolese officials located in Togo. See In re Omega Protein, 288 S.W.3d 17, 21–
22 (Tex. App.—Houston [1st Dist.] 2009) (orig. proceeding) (granting mandamus
petition to obtain forum non conveniens dismissal of claims against company
headquartered in Texas when accident occurred in Virginia and “persons with the
most knowledge” of the alleged tort were located in Virginia). In addition to the
testimony of the Togolese officials themselves, any internal correspondence or
memoranda of the officials and Togolese government is presumably located in
Togo. See Vinmar, 336 S.W.3d at 677. Thus, as a matter of the availability of
evidence, the effect of the letter in Togo is significant to establishing the validity of
claims at issue. Given the potential importance of foreign witnesses and any
49
Togolese documentary evidence to determining the effect that TGS’s alleged
interference had on the Togolese government, the trial court could have reasonably
weighed the first and second private-interest factors in favor of dismissal. See
Vinmar, 336 S.W.3d at 677 (upholding forum non conveniens dismissal when
appellees’ evidence “showed that much of the pertinent documentary evidence and
witnesses [were] located in Mexico”); Omega Protein, 288 S.W.3d at 21–22.
The other considerations adduced by Brenham Oil, such as the expense of
trial in Togolese courts that use the French language, the large amount of discovery
already conducted in Harris County, and the opinion of its expert that Togolese
courts cannot compel witness testimony, do not demonstrate that the trial court
abused its discretion. Although courts must consider as a private-interest factor “all
other practical problems that make trial of a case easy, expeditious and
inexpensive,” the need for a Texas company to travel to a foreign nation and seek
relief in courts that use a different language is not determinative. See Quixtar, 315
S.W.3d at 33 (holding that is error for a court to require that every Gulf Oil factor
favor dismissal); DTEX, 508 F.3d at 801 (discounting hardship to plaintiff of
litigating in foreign forum when its claims arose from its decision to make
purchases overseas). Moreover, a trial in Houston involving potential British,
Israeli, and Togolese witnesses, as well as documents written in French and
Hebrew, would carry its own set of expenses and inexpediencies. See Pirelli Tire,
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247 S.W.3d 678–79 (observing that litigation in either forum would necessitate
some amount of travel and translation). Furthermore, the court was entitled to
consider and credit the opinion of TGS’s expert Sokpoh that the accumulated
evidence would be admissible in a Togolese proceeding, and that Togolese courts
could compel the testimony of witnesses located in Togo.
Finally, we note that our conclusion affords great deference to the trial
court’s determination. Although Brenham Oil asserts that the trial court could only
have dismissed the case “if TGS were able to prove that all Gulf Oil factors
weighed strongly in favor of Togo,” that is not the proper standard. See Quixtar,
315 S.W.3d at 33. Here, the trial court reasonably could have weighed the private-
interest factors in favor of dismissal by giving greater weight to the availability of
evidence in Togo than to the language barrier or other practical difficulties for the
parties of taking the case to Togo. See, e.g., SES Prods., Inc. v. Aroma Classique,
LLC, No. 01–12–00219–CV, 2013 WL 2456797, at *6 (Tex. App.—Houston [1st
Dist.] June 6, 2013, no pet.) (mem. op.) (finding that trial court’s balancing of
factors was reasonable, even though defendants “evidentiary showing under the
private-interest factors could have been stronger,” because “the Gulf Oil factors
provide for a flexible inquiry, with no one factor being dispositive”).
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2. Public-interest factors
The public-interest factors are: (1) the administrative difficulties for courts
when litigation is piled up in congested centers instead of being handled at its
origin; (2) the burden of jury duty that ought not to be imposed upon the people of
a community with no relation to the litigation; (3) local interest in having localized
controversies decided at home; and (4) avoiding conflicts-of-law issues. Gulf Oil,
330 U.S. at 508–09, 67 S. Ct. at 843; Quixtar, 315 S.W.3d at 33–34.
Brenham Oil does not address the first factor, claiming that administrative
problems and docket congestion are “minimally relevant” to this case. Further,
characterizing “jury duty as an unlikely burden under the circumstances,” it
essentially concedes that the second factor does not weigh heavily for or against
dismissal.
Instead, Brenham Oil argues that the third and fourth public-interest
factors—local interest in having localized controversies decided at home and
avoiding conflicts-of-law issues—strongly favor litigation in Texas. It emphasizes
that both parties are headquartered in Houston and asserts that “TGS’s actions
arose directly in Houston or were supervised and approved of by TGS in Houston.”
Brenham Oil attempts to contrast these facts from those in two recent decisions of
this court, Vinmar and Benz Group. Vinmar involved a suit by two Mexican
corporations against a company headquartered in Texas with extensive
52
international operations. 336 S.W.3d at 667. Brenham Oil relies on the following
passage:
Texas jurors do not have a strong interest in resolving a dispute
arising from Mexican business transactions, contracts executed in
Mexico, and alleged torts emanating from Mexico, directed toward a
multinational corporation that thrives on conducting business in
emerging international markets. Significantly, this controversy arose
in Mexico and primarily involves Mexican residents.
Id. at 679–80. Brenham Oil points out that the court in Benz Group quoted this
language in support of a forum non conveniens dismissal of claims initiated by
Texas plaintiffs against Brazilian defendants. 404 S.W.3d at 99. Thus, Brenham
Oil relies on the fact that this case, unlike Vinmar and Benz Group, involves both a
Texas plaintiff and Texas defendant.
The difference Brenham Oil seeks to highlight between the facts of this case
and those in Vinmar and Benz Group is an imperfect one. While Brenham Oil is
correct that the parties in this case, unlike those in the prior decisions, are both
Texas residents and that the alleged torts could be said to have “emanated” from
the Houston-based AMEAP team, other reasons relied upon in support of dismissal
in Vinmar and Benz Group similarly apply to the dispute between Brenham Oil and
TGS. Looking at the record before the trial court, the present controversy is fairly
characterized as arising from a prospective Togolese “business transaction” and
involves a corporation, Brenham Oil, with hopes to “thrive” by “conducting
business in emerging international markets.” As Gaille stated in his letter to Welch,
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Brenham Oil is “a new vehicle that I am using to place capital in international
exploration opportunities.”
In Benz Group, the court, after quoting the above language from Vinmar,
said that the defendant “adduced evidence that Brazil was the main location for the
negotiations, agreements, alleged misdeeds, and ongoing business relevant to the
dispute.” Id. Those facts, not the residence of the parties, were what the Benz
Group court found significant in Vinmar’s analysis. Furthermore, those facts have
parallels in the present dispute, even though, unlike the Benz Group defendant,
TGS is a Texas company. Brenham Oil’s negotiations took place in Togo with
Togolese officials and their Israeli advisers, the alleged misdeed was to interfere
with those negotiations, and the projected “ongoing business relevant to the
dispute,” the drilling, would have allegedly eventuated in Togolese waters.
Brenham Oil contends that Texas law would apply to its claims. However, it
supports this contention by referring to a section of its brief discussing the
jurisdiction of the Togolese courts over the parties. In the absence of argument or
authority to the contrary, the trial court was entitled to weigh the possibility that
foreign law would apply to the suit in favor of dismissal. See Vinmar, 336 S.W.3d
at 679 (noting that the mere possibility that foreign law may ultimately apply has
been treated a factor militating in favor of forum non conveniens dismissal); SES
Prods., 2013 WL 2456797, at *6 (same).
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Brenham Oil has not demonstrated that the trial court abused its discretion in
weighing the private- or public-interest factors. We therefore conclude that the trial
court did not err in dismissing Brenham Oil’s suit for forum non conveniens. As
we affirm the judgment of the trial court dismissing Brenham Oil’s claims, we
need not address the jurisdictional issues raised in TGS’s cross-appeal, which we
dismiss as moot. See Vinmar, 334 S.W.3d at 671–72 (a court may dismiss a case
for forum non conveniens and bypass jurisdictional issues when judicial economy
is best served thereby) (citing Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
549 U.S. 422, 431, 127 S. Ct. 1184, 1191–92 (2007)).
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
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