Sammi MacHinery Co. Ltd. v. Jedadiah Mathews, Chelsea Mathews, Individually and as Next Friend for G.M. and J.M. Jr. and Robert Marines

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00017-CV
__________________
SAMMI MACHINERY CO. LTD., Appellant
V.
JEDADIAH MATHEWS, CHELSEA MATHEWS, INDIVIDUALLY
AND AS NEXT FRIEND FOR G.M. AND J.M. JR. AND
ROBERT MARINES, APPELLEES
__________________________________________________________________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-197,342
__________________________________________________________________
MEMORANDUM OPINION
In this interlocutory appeal, Appellant Sammi Machinery Co. Ltd. (Appellant
or Sammi Limited) appeals the trial court’s order denying its special appearance.
Because we find the trial court lacks specific personal jurisdiction over Sammi
Limited, we reverse the trial court’s ruling and remand the case to the trial court for
the dismissal and severance of the claims against Sammi Limited.
1
Background
Appellees Jedadiah Mathews, Chelsea Mathews, Individually and as Next
Friend for G.M. and J.M. Jr., and Robert Marines (collectively “Appellees” or
“plaintiffs”) filed this lawsuit to recover damages and injuries that Jedadiah
Mathews and Robert Marines sustained from a fire and explosion at the Chevron
Phillips Chemical Company facility in Port Arthur, Texas. Plaintiffs’ First Amended
Petition named Sammi Machinery, Sammi Line Blind BeNeLux, PandID B.V.,
Sammi Machinery Co. Ltd., and Sunbelt Supply Co. as defendants.1 The plaintiffs
alleged that the fire and explosion were proximately caused by a defective sliding
line blind valve (the valve), believed to have been installed in 2007. The plaintiffs
alleged that the valve was designed and manufactured by the defendants.
Sammi Limited filed an answer and special appearance alleging that the trial
court lacked personal jurisdiction over Sammi Limited and asserting a general
denial. Sammi Limited argues that it is a South Korean business and not a Texas
resident, it did not do business in Texas “at any relevant time[,]” it did not
1
A default judgment was rendered against Sammi Machinery. Plaintiffs
alleged that Sunbelt Supply Company is a Texas company doing business in Texas,
and Sunbelt did not deny that the trial court had personal jurisdiction over Sunbelt.
Sammi Machinery Co. Ltd. (Sammi Limited) is the only defendant that filed a
special appearance and the only defendant that is before us in this interlocutory
appeal. We address the other defendants only as necessary to explain the factual
background and the parties’ legal issues.
2
purposefully avail itself of the privilege of conducting activities in Texas, it does not
have ongoing contacts with Texas required for general jurisdiction, and “specific
jurisdiction does not lie where [p]laintiffs’ injuries did not arise from any Texas
contacts by Sammi Limited.” Sammi Limited alleged it did not do business in Texas
before November of 2011 and, therefore, it could not have designed, manufactured,
or sold any sliding line blinds installed in 2007. Sammi Limited also alleged that it
was not a wholly owned and operated subsidiary of Sammi Line Blind BeNeLux and
PandID B.V.; it has not registered to do business in Texas; it has not had an address
or telephone listing in Texas; it has not held board meetings in Texas or traveled to
Texas for business; it has not recruited in Texas; it has not owned, leased, or sold
property in Texas; it has not maintained bank accounts in Texas; and it has had no
contacts with the plaintiffs. Sammi Limited argued that plaintiffs failed to meet their
burden to allege sufficient facts to establish either general or specific personal
jurisdiction over it and requested dismissal. Sammi Limited attached an affidavit
made by its general manager, Kim Byeongryong (Kim), who stated that Sammi
Limited did not design, manufacture, or sell a sliding line blind valve with the
specific model and serial numbers as the line blind at issue.
The plaintiffs then filed a Second Amended Petition, adding allegations that
Sammy Ltd is the successor in interest to Sammi Machinery, which no longer exists
3
as a separate entity. The plaintiffs alleged that Sammi Limited had sufficient
minimum contacts with Texas because it purposefully availed itself of the privilege
of conducting business in Texas, that it advertised and did business in Texas, it was
aware its products would be used in Texas, and it sold and shipped its products to
customers in Texas, including BP Texas, Exxon Mobil Houston, Lubrizol in
Pasadena, and Oiltanking Houston. Plaintiffs also alleged that “the contacts of
[Sammi Limited’s] agents, apparent agents, partners, alter egos, joint venturers,
downstream distributors, and/or representatives should be attributed or fused to
prevent injustice, fraud, or a sham.”
Plaintiffs filed a response to Sammi Limited’s special appearance. Plaintiffs
alleged that Kim started the Korean company Sammi Machinery in 1993, which
made and sold line blind valves to companies in the oil and gas industry, that Kim
dissolved Sammi Machinery in 2010, that Kim started Sammi Limited one year later,
and that Sammi Limited also makes and sells line blind valves to companies in the
oil and gas industry. Plaintiffs argued that considering the allegations added in its
Second Amended Petition, they have met their initial burden to plead sufficient
allegations to bring Sammi Limited within the reach of the Texas long-arm statute.
Plaintiffs also argued that Sammi Limited failed to negate the plaintiffs’
jurisdictional allegations either factually or legally.
4
Plaintiffs also argued that Sammi Machinery and Sammi Limited should be
considered the same entity for purposes of jurisdiction, and that Sammi Machinery’s
contacts with Texas should be imputed to Sammi Limited because “the same person
owned at least 89% of both companies, which made the same product, sold it to the
same customers, and used the same website and logo.” Plaintiffs admitted in the trial
court that they asserted only specific personal jurisdiction for Sammi Machinery,
and plaintiffs outlined Sammi Machinery’s “minimum contacts” with Texas,
specifically that Sammi Machinery designed valves for the Texas market, it
maintained a business relationship with the companies that purchased or installed
the valves for the Chevron unit at issue in this lawsuit, and it sold to other oil and
gas companies in Texas. According to the plaintiffs, such contacts establish that
Sammi Machinery intended to serve the Texas market and establish a substantial
connection between its contacts in Texas and the operative facts of the litigation.
Plaintiffs argue that asserting personal jurisdiction over Sammi Limited would not
offend traditional notions of fair play and substantial justice because the only
potential burden on Sammi Limited would be distance, and distance alone cannot
ordinarily defeat jurisdiction, citing Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414
S.W.3d 142, 155 (Tex. 2013).
5
Plaintiffs attached purchase orders dated 2005 through 2009 for purchases by
Chevron in Nederland, Texas, from Sammi Machinery for blind line valves.
Plaintiffs also attached transcripts of the deposition of Kim Byeongryong. Kim
testified that he founded Sammi Machinery in 1993, he owned it until the end of
2010, and Sammi Limited was established in 2011. In one deposition transcript, Kim
testified that he owned 89% of Sammi Limited; in the other, he testified that he
owned “[n]ot quite[]” 50% of Sammi Limited, and he was the sole owner of Sammi
Machinery. Kim recalled that Sammi Machinery valves were sold in the United
States and specifically it sold valves to Sunbelt Supply and Strahman Valve. Kim
testified that Sammi Machinery made line blind valves as well as wood-working
equipment but that Sammi Limited made only line blind valves, and everything both
companies made was customized. According to Kim, when Sammi Machinery shut
down, it sold all its equipment and the records were discarded. Kim stated that
“Sammi” is a common company name in Korea, but he was unaware of any other
Korean company making line blinds. Kim agreed that Sammi Machinery and Sammi
Limited used the same website address. Kim was unaware of any sales to the
Chevron facility that are the basis of this lawsuit, and he denied ever having visited
that facility. According to Kim, Sammi Limited did not keep or use any of Sammi
Machinery’s employees, equipment, or factory.
6
Sammi Limited filed an amended special appearance and reply in support of
its original special appearance and answer. Sammi Limited argued that it was not a
successor-in-interest to Sammi Machinery, that Sammi Machinery was not merged
into Sammi Limited, and that
Sammi Limited never intended to assume any of Sammi Machinery’s
liabilities, and Sammi Limited never took any action intended to
transfer or assume any of Sammi Machinery’s liabilities. [] Sammi
Limited did not enter into any agreements with Sammi Machinery in
which Sammi Limited agreed to assume any of Sammi Machinery’s
liabilities. [] There were no agreements between Sammi Limited and
Sammi Machinery addressing Sammi Machinery’s liabilities.
Sammi Limited also alleged that it did not design, manufacture, or sell a sliding line
blind valve with the model number or serial number as the one at issue. Sammi
Limited also denied that it had ever had any contact with the plaintiffs or with
Chevron in Texas. Sammi Limited argued that plaintiffs’ claims against it do not
arise from its contacts with Texas:
Sammi Limited did not exist when the allegedly defective sliding line
blind was designed, manufactured, and sold. The sliding line blind
[valve] at issue was allegedly installed in 2007, years before Sammi
Limited came into existence in 2011. Accordingly, the claims against
Sammi Limited could not possibly arise from any of Sammi Limited’s
hypothetical Texas contacts or from any allegedly tortious conduct by
Sammi Limited, unless Sammi Limited agreed to assume this liability.
Sammi Limited did not.
Sammi Limited argued that, under Texas law, it was not a successor-in-interest to
Sammi Machinery even if it had acquired substantially all of Sammi Machinery’s
7
assets because it had not expressly assumed the former entity’s liabilities, and
dismissal was warranted for lack of personal jurisdiction. Specifically, Sammi
Limited argued that Texas law authorizes a successor to acquire the assets of a
corporation without incurring any of the grantor corporation’s liabilities, unless the
successor expressly assumes those liabilities. See Tex. Bus. Orgs. Code Ann.
§ 10.254(b) (West 2012); Moore v. Panini Am. Inc., No. 05-15-01555-CV, 2016
Tex. App. LEXIS 12008, at *15 (Tex. App.—Dallas Nov. 7, 2016, no pet.) (mem.
op.).
The trial court denied Sammi Limited’s special appearance without a hearing.
The record includes no findings of fact and conclusions of law entered by the trial
court nor any evidence that they were requested.
Issue
In one issue, Sammi Limited argues that the trial court erred in failing to grant
its special appearance because the trial court lacks personal jurisdiction over Sammi
Limited. Sammi Limited argues that, because it did not exist at the time of the
incident, it could not have purposefully availed itself of the privilege of conducting
activities in Texas in connection with the claims in this lawsuit. According to Sammi
Limited, the plaintiffs have wrongly conflated Sammi Machinery and Sammi
Limited, and Sammi Limited is not a successor-in-interest to Sammi Machinery.
8
Sammi Limited argues that because plaintiffs’ injuries did not arise from or relate to
any of Sammi Limited’s contacts with Texas, the trial court should have granted the
special appearance and dismissed the claims against Sammi Limited.
Standard of Review and Applicable Law
Whether a trial court has personal jurisdiction over a nonresident defendant is
ultimately a question of law that we review de novo. Moncrief Oil , 414 S.W.3d at
150; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794-95 (Tex.
2002). The plaintiff has the initial burden of pleading sufficient allegations to bring
a nonresident defendant within the jurisdiction of a Texas court. Moncrief, 414
S.W.3d at 149; Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.
2010); Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.
2009). If the plaintiff meets this initial burden, “the burden shifts to the defendant to
negate all potential bases for personal jurisdiction the plaintiff pled.” Moncrief, 414
S.W.3d at 149; BMC Software, 83 S.W.3d at 793. The defendant may negate the
jurisdictional allegations on either a factual or a legal basis. Kelly, 301 S.W.3d at
659. There being no timely filed findings of fact and conclusions of law, “all facts
necessary to support the judgment and supported by the evidence are implied.” BMC
Software, 83 S.W.3d at 795. If the appellate record includes the reporter’s and clerk’s
9
records, these implied findings are not conclusive and may be challenged for legal
and factual sufficiency in the appellate court. Id.
A trial court has personal jurisdiction over a nonresident defendant if the
exercise of jurisdiction is authorized by statute and is consistent with federal and
state constitutional due process guarantees. Moncrief, 414 S.W.3d at 149; Spir Star
AG v. Kimich, 310 S.W.3d 868, 872 (Tex. 2010); see also Tex. Civ. Prac. & Rem.
Code Ann. § 17.042 (West 2015). The Texas long-arm statute provides that certain
acts constitute doing business in Texas, including, but not limited to, the following:
(1) contracts by mail or otherwise with a Texas resident and either party
is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary located
in this state, for employment inside or outside this state.
Tex. Civ. Prac. & Rem. Code Ann. § 17.042. Although an allegation of jurisdiction
may satisfy the Texas long-arm statute, the allegation still may not necessarily
satisfy the United States Constitution. Moncrief, 414 S.W.3d at 149. As a result,
even if a court determines the facts satisfy the Texas long-arm statute, a court must
also examine the facts to determine whether the exercise of personal jurisdiction
over the defendant comports with due process. See CSR Ltd. v. Link, 925 S.W.2d
591, 594 (Tex. 1996).
10
Asserting personal jurisdiction over a nonresident defendant comports with
due process when (1) the nonresident defendant has minimum contacts with the
forum state, and (2) asserting jurisdiction comports with traditional notions of fair
play and substantial justice. Retamco, 278 S.W.3d at 338. The minimum contacts
analysis requires “‘some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.’” Michiana Easy Livin’ Country, Inc. v. Holten, 168
S.W.3d 777, 784 (Tex. 2005) (quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958)). The focus is on the defendant’s activities and expectations. Am. Type
Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). Only the
defendant’s contacts with the forum are relevant, not the unilateral activity of
another party or a third person. Moki Mac River Expeditions v. Drugg, 221 S.W.3d
569, 575 (Tex. 2007); see also Walden v. Fiore, 571 U.S. 277, 291 (2014) (“[I]t is
the defendant, not the plaintiff or third parties, who must create contacts with the
forum State.”).
A defendant’s contacts may support either general jurisdiction or specific
jurisdiction. See Moncrief, 414 S.W.3d at 150; Zinc Nacional, S.A. v. Bouche
Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010). Continuous and systematic
contacts with Texas may support general jurisdiction, while specific jurisdiction
11
exists when the cause of action arises out of or relates to specific purposeful activities
of the defendant in Texas. Moncrief, 414 S.W.3d at 150. “‘[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.’” Searcy v. Parex Res., Inc., 496 S.W.3d 58, 70 (Tex. 2016) (quoting Moki
Mac, 221 S.W.3d at 585); see also Guardian Royal Exch. Assurance, Ltd. v. English
China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).
General jurisdiction may only be exercised over a nonresident defendant
whose contacts in the forum state are so continuous and systematic “‘as to render [it]
essentially at home in the forum State.’” Daimler AG v. Bauman, 571 U.S. 117, 119
(2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011)). General jurisdiction requires a more demanding minimum contacts
analysis than specific jurisdiction does, and the nonresident defendant must have
conducted substantial activities within the forum. BMC Software, 83 S.W.3d at 797.
For a Texas court to exercise general jurisdiction over a nonresident, the
nonresident’s contacts with Texas must be continuous, systematic, and substantial.
See Goodyear, 564 U.S. at 916, 919; Moki Mac, 221 S.W.3d at 575 (“If the defendant
has made continuous and systematic contacts with the forum, general jurisdiction is
established whether or not the defendant’s alleged liability arises from those
12
contacts.”). “General jurisdiction is premised on the notion of consent. That is, by
invoking the benefits and protections of a forum’s laws, a nonresident defendant
consents to being sued there.” Am. Type Culture Collection, Inc., 83 S.W.3d at 808.
The plaintiff must establish more than isolated or sporadic visits with the forum
before such contacts will constitute the type of continuous, systematic, and
substantial contacts necessary for general jurisdiction. See Helicopteros Nacionales
de Colombia v. Hall, 466 U.S. 408, 415-19 (1984).
Specific jurisdiction exists when there is evidence that the defendant
purposefully availed itself of the forum’s jurisdiction by contacts or activities in the
forum state, and the cause of action arises from or is related to those contacts or
activities. Retamco, 278 S.W.3d at 338 (citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985)); BMC Software, 83 S.W.3d at 795-96. Under specific
jurisdiction, the focus is on the relationship between the forum, the defendant, and
the litigation. Moncrief, 414 S.W.3d at 150; Retamco, 278 S.W.3d at 338. There
must be a substantial connection between the defendant’s contacts and the operative
facts of the litigation. Moncrief, 414 S.W.3d at 156. The contacts must be such that
the defendant “should reasonably anticipate being haled into court” in Texas. World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). As for tort claims,
simply because the defendant directs a tort from outside the forum that occurred in
13
Texas would not be sufficient for a Texas court to automatically exercise personal
jurisdiction over a nonresident because it confuses the proper focus which should be
on the defendant’s contacts with Texas and purposeful availment. Michiana, 168
S.W.3d at 790-91. We must analyze the jurisdictional contacts on a “claim-by-claim
basis” unless all claims arise from the same forum contacts. Moncrief, 414 S.W.3d
at 150-51.
When considering whether the nonresident purposefully availed itself of the
privilege of conducting activities within Texas, we look at three factors: (1) whether
the defendant had contacts and activity in and with Texas; (2) whether the contacts
relied upon were purposeful rather than random, fortuitous, or attenuated; and,
(3) whether the defendant sought some benefit, advantage, or profit by availing itself
of the jurisdiction. Id. at 151.
The parties do not argue that Korean law should govern the jurisdictional issue
before us, and they did not ask the trial court or this Court to take judicial notice of
any other nation’s or state’s laws; therefore, we will assume Texas law applies. See
Motor Components, LLC v. Devon Energy Corp., 338 S.W.3d 198, 205 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (citing Burlington N. & Santa Fe Ry. Co. v.
Gunderson, Inc., 235 S.W.3d 287, 290-92 (Tex. App.—Fort Worth 2007, pet.
withdrawn) (absent a motion to take judicial notice of another state’s laws, courts
14
may apply Texas law, and they are entitled to presume that, “whichever state’s law
applied, it is identical to Texas law”)). The Appellant and Appellee agree that this
case involves only specific jurisdiction.
Sammi Limited’s Contacts with Texas
First, we examine Sammi Limited’s contacts with Texas, separate and apart
from any alleged relationship it had with Sammi Machinery, to determine if its own
contacts are a sufficient basis for specific personal jurisdiction.
In the First Amended Petition, the plaintiffs alleged that the sliding line blinds
manufactured and designed “by Defendants” were installed in 2007. In the Second
Amended Petition, the live petition at the time the trial court signed the order denying
the special appearance, the plaintiffs alleged that Sammi Limited does business in
the United States and is the successor in interest to Sammi Machinery. Plaintiffs also
alleged that:
[T]his Defendant made sufficient minimum contacts with Texas by
purposefully availing itself of the privilege of conducting activities in
Texas. This suit arises from a defective product made, sold, and shipped
by this Defendant to Texas. This Defendant purposefully availed itself
of the benefit, advantage, and profit of this jurisdiction. This Defendant
advertised, established channels of regular communications, conducted
routine sales, and maintained contractual relationships in Texas. This
Defendant was aware that the product that caused the injury forming
the basis of this suit would be used in Texas. This Defendant
manufactured its products in compliance with American manufacturing
standards. This Defendant sold and shipped its products to customers
in Texas, including BP Texas, Exxon Mobil Houston, Lubrizol
15
Pasadena TX, Oiltanking Houston. In addition, the contacts of its
agents, apparent agents, partners, alter egos, joint venturers,
downstream distributors, and/or representatives should be attributed or
fused to prevent injustice, fraud, or a sham.
In its special appearance, Sammi Limited alleged that it began business in
November 2011, and it did not design, manufacture, or sell any blind line valves or
have any contact with Texas before that time, and that Sammi Limited did not
conduct business in Texas or sell any products or services in Texas before November
2, 2011. Therefore, Sammi Limited stated it could not have installed the line blind
valves installed in 2007. Sammi Limited also alleged that it has never registered to
do business in Texas; does not maintain an office in Texas; does not have any
officers, employees, or agents in Texas; does not have a telephone number or address
in Texas; has not held board meetings in Texas; has not had officers, directors, or
employees travel to Texas for business; has never recruited a Texas resident; has not
leased, owned, or sold any real or personal property in Texas; and has not maintained
any bank accounts in Texas.
In their response to Sammi Limited’s special appearance, the plaintiffs stated
that Sammi Limited did not address and failed to negate the specific jurisdictional
allegations in the Second Amended Petition. Plaintiffs also alleged that Kim started
Sammi Machinery in 1993 and sold valves to companies in the oil and gas industry
in Texas; that Kim dissolved Sammi Machinery in 2010 and one year later formed
16
Sammi Limited, which also makes and sells line blind valves to companies in the oil
and gas industry; and that Sammi Limited uses the same website and logo used by
Sammi Machinery. According to the plaintiffs, they sufficiently alleged that Sammi
Limited was doing business in Texas and committed a tort in whole or in part in
Texas and the pleadings bring Sammi Limited within the Texas long-arm statute.
The plaintiffs’ jurisdictional allegations fall short because they do not allege
that the plaintiffs’ claims arise out of or relate to Sammi Limited’s contacts with
Texas. Specific jurisdiction is limited to claims that “arise out of or relate to” a non-
resident’s forum contacts. Burger King, 471 U.S. at 472 (quoting Helicopteros, 466
U.S. at 414); Retamco, 278 S.W.3d at 338. In such cases, there must be a “substantial
connection” between the defendant’s contacts and the operative facts of the
litigation. See Moki Mac, 221 S.W.3d at 585. Here, the plaintiffs allege that their
injuries resulted from a defective valve installed in 2007, and any contacts Sammi
Limited may have had with Texas—even if purposefully to avail itself of the benefits
of doing business in Texas—could only have occurred after that date because Sammi
Limited was not formed until November 2011. Thus, the plaintiffs’ claims could not
have related to Sammi Limited’s contacts. Although plaintiffs alleged that “[t]his
suit arises from a defective product made, sold, and shipped by this Defendant to
Texas[,]” the purchase orders in the record are dated from 2005 through 2009 and
17
show sales of a Sammi Machinery product. The affidavit and other evidence
submitted with the special appearance and amended special appearance rebutted the
allegations and shifted the burden back to the Plaintiffs. See Kelly, 301 S.W.3d at
659. On the record before us, we conclude that the plaintiffs did not assert sufficient
allegations demonstrating that plaintiffs’ claims arise out of or relate to Sammi
Limited’s contacts with Texas that would establish specific personal jurisdiction.
However, that does not end our analysis because the plaintiffs contend that Sammi
Machinery’s contacts may be imputed to Sammi Limited.
Imputing Sammi Machinery’s Contacts to Sammi Limited
The plaintiffs allege that Sammi Machinery manufactured the blind line valve
that was installed at the Chevron facility in 2007; Chevron ordered blind line valves
by purchase orders from 2005 to 2009; Sammi Machinery was owned by Kim until
Kim dissolved it in 2010 and formed Sammi Limited; and Sammi Limited uses the
same website and logo used by Sammi Machinery.
Appellant Sammi Limited argues that it is not a successor-in-interest to
Sammi Machinery and that any of Sammi Machinery’s contacts with Texas cannot,
as a matter of law, be imputed to it for purposes of determining personal jurisdiction.
Sammi Limited argues that (1) under Texas law, an entity may acquire assets of an
earlier-formed entity without incurring the earlier entity’s liabilities, unless the
18
acquiring entity expressly assumes those liabilities and (2) there is no evidence that
Sammi Limited expressly agreed to assume the liabilities of Sammi Machinery.
The plaintiffs argued to the trial court that Sammi Machinery’s contacts in
Texas may be imputed to Sammi Limited for the purposes of determining personal
jurisdiction, citing Ho Wah Genting Kintron Sdn Bhd v. Leviton Mfg. Co., 163
S.W.3d 120, 129 (Tex. App.—San Antonio 2005, no pet.). In Ho Wah, the San
Antonio court concluded that the evidence was sufficient to support an implied
finding that a later entity was the successor-in-interest to an earlier entity under a
name change and that the earlier entity’s contacts with Texas could be imputed to
the later entity. Id. at 129.
Sammi Limited disagreed and argued that Ho Wah is factually distinguishable
because the Director of Marketing in that case had testified that the defendant was
the same company as the earlier entity that had manufactured the allegedly defective
product, and simply operating under a different name. Id. at 128-29. Sammi Limited
argues that under Texas law, an acquiring company does not become a successor-in-
interest except by expressly agreeing to assume the liabilities of the acquired entity.
See Tex. Bus. Orgs. Code Ann. § 10.254(b); Moore, 2016 Tex. App. LEXIS 12008,
at *15 (citing E-Quest Mgmt., L.L.C. v. Shaw, 433 S.W.3d 18, 23-24 (Tex. App.—
19
Houston [1st Dist.] 2013, pet. denied); Lockheed Martin Corp. v. Gordon, 16 S.W.3d
127, 139 (Tex. App.—Houston [1st Dist.] 2000, pet. denied)).
“When used as a legal term applying to corporations, the term ‘successor’ has
a restricted meaning.” Sitaram v. Aetna U.S. Healthcare of N. Tex., Inc., 152 S.W.3d
817, 826 (Tex. App.—Texarkana 2004, no pet.). A successor is not the same as a
third-party purchaser. See Farm & Home Sav. Ass’n v. Strauss, 671 S.W.2d 682, 685
(Tex. App.—Dallas 1984, no writ). Rather, a successor-in-interest is an entity that
assumes the burdens and becomes invested with the rights of another entity by some
form of legal succession. See M&E Endeavours LLC v. Cintex Wireless LLC, No.
01-15-00234-CV, 2016 Tex. App. LEXIS 4109, at *7 (Tex. App.—Houston [1st
Dist.] Apr. 19, 2016, no pet.) (citing CNOOC Se. Asia Ltd. v. Paladin Res. (SUNDA)
Ltd., 222 S.W.3d 889, 896 (Tex. App.—Dallas 2007, pet. denied)).
“Under a successor corporation liability theory, a nonresident defendant
corporation not otherwise subject to personal jurisdiction in the forum state becomes
so by virtue of succeeding to a corporation that was subject to personal jurisdiction
in the forum state.” Shapolsky v. Brewton, 56 S.W.3d 120, 136 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied) (citing In re Celotex Corp., 124 F.3d 619, 628 (4th
Cir. 1997)), abrogated on other grounds by Michiana, 168 S.W.3d 777. In
Shapolsky, the Fourteenth Court explained that the Texas Business Corporations Act
20
(the predecessor of the current Texas Business Organizations Code) governs the
liability of an acquiring corporation. Id. at 137. The Act provided that the purchase
of all or substantially all of the assets of a seller corporation does not make the
acquiring corporation liable for the seller’s liabilities or obligations unless the
acquiring entity expressly assumed those liabilities or obligations or as provided for
in another statute. Id. at 137 (citing former Tex. Bus. Corp. Act Ann. art. 5.10(B)(2);
Lockheed Martin Corp, 16 S.W.3d at 134-35).
In amending article 5.10 in 1979, the Legislature added section B, which
provides that the acquisition of assets does not make the acquiring entity responsible
for the former entity’s liabilities or obligations not expressly assumed. See Tex. Bus.
Corp. Act. Ann. art. 5.10(B) (West 1980). The stated purpose of this amendment
was “to preclude the application of the doctrine of de facto merger” under which the
acquiring entity could be held responsible for the seller’s liabilities in the absence of
a contractual agreement. Id. cmt. 2. The Shapolsky court explained that, therefore,
the Act as amended in 1979 precluded application of both the “de facto merger
doctrine” and the “mere continuation” theory as exceptions to the general rule
against successor liability. 56 S.W.3d at 137-38 (citing Tex. Bus. Corp. Act Ann.
art. 5.10 cmt. 2; Mudgett v. Paxson Mach. Co., 709 S.W.2d 755, 758 (Tex. App.—
Corpus Christi 1986, writ ref’d n.r.e.)); see also Suarez v. Sherman Gin Co., 697
21
S.W.2d 17, 20 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (explaining that the
legislature amended the Act in 1979 to statutorily preclude application of the de facto
merger doctrine in Texas clearly stating a public policy opposed to the doctrine).
With the legislative intent behind article 5.10 in mind, the Shapolsky court concluded
that a “mere continuation” theory could not be used to impute the contacts of a seller
corporation to an acquiring corporation for purposes of establishing personal
jurisdiction and that “Texas courts may not assert personal jurisdiction” over an
acquiring corporation based on its purchase of an earlier entity’s assets. 56 S.W.3d
at 138, 139; see also Motor Components, LLC, 338 S.W.3d at 205 (“[U]nder Texas
law, we do not automatically impute the predecessor’s jurisdictional contacts to the
successor.”).
Under section 10.254(b) of the Business Organizations Code, which replaced
the former Texas Business Corporations Act, “[e]xcept as otherwise expressly
provided by another statute, a person acquiring property described by this section
may not be held responsible or liable for a liability or obligation of the transferring
domestic entity that is not expressly assumed by the person.” Tex. Bus. Orgs. Code
§ 10.254(b). Section 1.002 of the Business Organizations Code states that a domestic
entity “is formed under this code or the entity’s internal affairs are governed by this
code.” See Tex. Bus. Orgs. Code Ann. § 1.002(17) (West Supp. 2018). This section
22
also defines a foreign entity as “an organization formed under, and the internal
affairs of which are governed by, the laws of a jurisdiction other than this state.” Id.
§ 1.002(28).
On appeal, Appellees argue that section 10.254(b) does not apply to foreign
entities like Sammi Machinery and Sammi Limited, so the presumption against
continuation does not apply. The Houston Fourteenth Court concluded that the
earlier codification of the statute eliminated the “continuation theory” of liability as
to both domestic and foreign corporations, but the current version applies only to
domestic entities. See Motor Components, LLC, 338 S.W.3d at 205 (citing Tex. Bus.
Orgs. Code Ann. § 10.254 (formerly Tex. Bus. Corp. Act Ann. art. 5.10(B));
Lockheed Martin Corp., 16 S.W.3d at 139.
Even assuming without deciding that section 10.254(b) of the Business
Organizations Code does not apply to Sammi Limited, Appellees argued during oral
argument in this Court that the “Restatement Law” applied. We note that the Third
Restatement of Torts provides:
A successor corporation or other business entity that acquires assets of
a predecessor corporation or other business entity is subject to liability
for harm to persons or property caused by a defective product sold or
otherwise distributed commercially by the predecessor if the
acquisition:
(a) is accompanied by an agreement for the successor to assume such
liability; or
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(b) results from a fraudulent conveyance to escape liability for the debts
or liabilities of the predecessor; or
(c) constitutes a consolidation or merger with the predecessor; or
(d) results in the successor becoming a continuation of the predecessor.
Restatement (Third) of Torts: Products Liability § 12; see also Ford Bacon & Davis,
L.L.C. v. Travelers Ins. Co., 635 F.3d 734, 737 (5th Cir. 2011) (explaining that Texas
law does not have a product-line successor liability rule and that Texas law explicitly
states that an acquiring company may not be held responsible for a liability of the
transferring entity that it does not expressly assume) (citing Keller Founds., Inc. v.
Wausau Underwriters Ins. Co., 626 F.3d 871, 877 (5th Cir. 2010)); Lockheed Martin
Corp., 16 S.W.3d at 134, 139 (“Texas strongly embraces the non-liability rule.”).
In their response to Sammi Limited’s special appearance, Appellees argued
that
Sammi [Ltd] and Sammi Machinery should be considered the same
entity for purposes of this Court’s jurisdictional analysis. The evidence
establishes that the same person owned at least 89% of both companies,
which made the same product, sold it to the same customers, and used
the same website and logo.
In their Second Amended Petition, plaintiffs pleaded that Sammi Limited was
formerly known as and is the successor-in-interest to Sammi Machinery. Appellees
argued that there is no “meaningful difference” between the two companies and that
Sammi Machinery’s contacts may be imputed to Sammi Limited. Sammi Limited
24
denied this allegation and responded that Sammi Machinery was not merged into
Sammi Limited; that Sammi Limited was not a continuation of Sammi Machinery;
and that Sammi Limited did not agree to assume any of Sammi Machinery’s
liabilities. Sammi Limited also denied it is a wholly-owned subsidiary of defendants
Sammi Line Blind BeNeLux and PandID B.V. Appellees never argued that Sammi
Limited expressly assumed the liabilities of Sammi Machinery. In his deposition,
Kim expressly denied that Sammi Limited took over Sammi Machinery’s factory,
took on any of Sammi Machinery’s employees, or bought any of Sammi
Machinery’s equipment. And in his second declaration (affidavit), Kim denied that
Sammi Limited “took any action intended to transfer or assume any of Sammi
Machinery’s liabilities[]” and Sammi Limited denied entering into any agreements
expressly assuming any of Sammi Machinery’s liabilities. In his deposition, Kim
denied that Sammi Limited bought the “Sammi” name from Sammi Machinery. Kim
did admit that Sammi Limited used the same website that Sammi Machinery had
used.
On this record, we conclude that Sammi Limited met its burden to negate the
jurisdictional allegations in plaintiffs’ pleadings. See Moncrief, 414 S.W.3d at 149.
Sammi Limited denied that it had acquired the assets of, merged with, or was a
continuation of Sammi Machinery, and also denied that it had assumed any liabilities
25
of Sammi Machinery, as evidenced by Kim’s verified declarations. The plaintiffs’
response emphasized that Kim started Sammi Machinery in 1993 and sold valves to
customers in the companies in the oil and gas industry in Texas; Kim dissolved
Sammi Machinery in 2010 and one year later formed Sammi Limited, which also
makes and sells line blind valves to companies in the oil and gas industry; and,
Sammi Limited uses the same website and logo used by Sammi Machinery.
According to the plaintiffs, at the time of the suit Sammi Limited was doing business
in Texas and, as a successor to Sammi Machinery, it committed a tort in whole or in
part in Texas and the pleadings bring Sammi Limited within the Texas long-arm
statute.
On the record before us, we conclude that the evidence is legally and factually
insufficient to support a finding that Sammi Limited was a successor-in-interest to
Sammi Machinery. Compare Ho Wah, 163 S.W.3d at 129 (where the evidence was
legally and factually sufficient to support an implied finding of successor-in-interest
under a mere name change). The record contains no purchase agreement, document,
or testimony indicating the Sammi Limited assumed the liabilities of Sammi
Machinery. Sammi Machinery and Sammi Limited were separate legal entities
according to the formation and termination documents attached to Kim’s
declarations, and according to the deposition testimony. Therefore, we presume they
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are distinct entities. BMC Software, 83 S.W.3d at 798. “One corporation’s
jurisdictional contacts cannot be imputed to another simply by ‘blurring the
distinction’ between them.” Motor Components, LLC, 338 S.W.3d at 203 (citing All
Star Enters., Inc. v. Buchanan, 298 S.W.3d 404, 422 (Tex. App.—Houston [14th
Dist.] 2009, no pet.)).
Texas law does not provide a basis for Sammi Machinery’s contacts with
Texas to be imputed to Sammi Limited under a successor-in-interest liability
theory. 2 See Shapolsky, 56 S.W.3d at 137-38; see also Moki Mac, 221 S.W.3d at 575
(stating the general rule that “only the defendant’s contacts with the forum are
relevant, not the unilateral activity of another party or a third person[]”). 3 Similarly,
2
Although we apply Texas law herein, we note that in Funai Elec. Co. v.
Daewoo Elecs. Corp., No. C-04-01830 JCS, 2008 U.S. Dist. LEXIS 123927, at
**20-31 (N.D. Cal. July 22, 2008), the United States District Court for the Northern
District of California addressed successor liability under Article 42 of the Korean
Commercial Code. That court concluded that Korean law allows for successor
liability only where there is an express contractual provision providing for such
liability or where the successor and predecessor companies share the same name and
there has been no disclaimer of liability. Id. at **30-31; see also Statutes of the
Republic of Korea, Commercial Act, article 42 (Act No. 13523, Dec. 1, 2015),
http://elaw.klri.re.kr/eng_service/lawView.do?hseq=37127&lang=ENG (last
accessed June 10, 2019).
3
Plaintiffs also pleaded that Sammi Limited is subject to specific personal
jurisdiction through “the contacts of its agents, apparent agents, partners, alter egos,
joint venturers, downstream distributors, and/or representatives[.]” The Appellees
failed to brief any of these allegations at trial or on appeal, and we need not discuss
these alleged theories. See Tex. R. App. P. 38.1(f).
27
even if we were to apply the Restatement Third to this matter, the plaintiffs have
failed to assert sufficient facts to satisfy any of the exceptions to the general rule of
non-liability. Finally, we need not determine whether Sammi Machinery’s contacts
were sufficient to establish personal jurisdiction over Sammi Machinery. See Tex.
R. App. P. 47.1.
In conclusion, we have determined that the plaintiffs failed to allege or
establish that Sammi Limited’s contact with Texas had a “substantial connection” to
the operative facts of the litigation, and therefore the trial court lacked specific
jurisdiction over Sammi Limited based on its contacts with Texas. We have also
concluded that Sammi Machinery’s contacts cannot be imputed to Sammi Limited
as a successor-in-interest, and we rejected the application of either the de facto
merger doctrine or the continuation theory. We need not address the arguments that
exercising jurisdiction over Sammi Limited offends traditional notions of fair play
and substantial justice. See Moki Mac, 221 S.W.3d at 585-88 (omitting consideration
of this due-process requirement after concluding that there was no substantial
connection between the defendant’s conduct and the operative facts of the litigation);
Motor Components, LLC, 338 S.W.3d at 206.
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We sustain the Appellant’s issue, reverse the trial court’s order and remand
the case with instructions to the trial court to dismiss Appellant and to sever the
claims against it from the remainder of the action.
REVERSED AND REMANDED.
_________________________
LEANNE JOHNSON
Justice
Submitted on June 6, 2019
Opinion Delivered July 11, 2019
Before McKeithen, C.J., Horton and Johnson, JJ.
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