DynaResource De México S.A. De C v. and DynaResources Inc. v. Goldgroup Resources Inc.

AFFIRMED in part; REVERSE and RENDER in part and Opinion Filed
May 2, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00362-CV
DYNARESOURCE DE MÉXICO S.A. DE C.V. AND DYNARESOURCE
INC., Appellants
V.
GOLDGROUP RESOURCES INC., Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-17887
OPINION
Before Justices Carlyle, Goldstein, and Breedlove1
Opinion by Justice Goldstein
Dynaresource de Mexico S.A. de C.V. (DynaMexico) and Dynaresource Inc.
appeal the trial court’s judgment granting the motion to dismiss, motion for non-
recognition of a foreign judgment, and special appearance filed by Goldgroup
Resources, Inc. The trial court’s judgment also denied Dynaresource’s2 motion for
1
The Honorable Justice Lana Myers was originally a member of this panel. The Honorable Justice
Breedlove succeeded Justice Myers on this panel when her term expired on December 31, 2022. Justice
Breedlove has reviewed the briefs and the record.
2
Except where necessary to distinguish separate Dynaresource entities, appellants are referred to
collectively as “Dynaresource.”
recognition of a foreign judgment. In five issues, Dynaresource argues the trial court
erred in (1) granting Goldgroup’s special appearance, (2) reaching the merits of the
recognition action after granting the special appearance, (3) preventing an
evidentiary hearing from being held on the merits of the recognition action by ruling
simultaneously on the special appearance and on the merits, (4) granting
Goldgroup’s motion for non-recognition of a foreign judgment, and (5) granting
Goldgroup’s motion to dismiss. In this case of first impression, we affirm the trial
court’s judgment granting Goldgroup’s special appearance; in all other respects, we
reverse the trial court’s judgment and render judgment dismissing for lack of
jurisdiction Dynaresource’s motion for recognition of a foreign judgment and
Goldgroup’s motion to dismiss and motion for non-recognition.
BACKGROUND
On September 1, 2006, DynaMexico, a Mexican corporation, Dynaresource,
a Delaware corporation, and Goldgroup, a British Columbia corporation, entered
into an Earn In/Option Agreement whereby DynaMexico granted Goldgroup an
option to earn up to a fifty-percent equity interest in DynaMexico, which owned gold
mining operations and assets comprising the San Jose de Gracia property located in
Mexico. Under the heading “Governing Law/Jurisdiction,” the agreement provided
that, “[s]ubject to the applicability of Mexican law in respect to the shares of
DynaMexico and the acquisition thereof, the venue and jurisdiction for any dispute
–2–
related to this Agreement shall be in Denver, Colorado.” The agreement specifically
provided for dispute resolution:
8.16 Dispute Resolution.
All questions or matters in dispute under this Agreement shall be
submitted first to mediation and then if no resolution to binding
arbitration pursuant to the terms hereof.
(a) Any dispute shall first be submitted to a mediator, selected by the
Parties, by agreement at a neutral location, agreed to by all parties. All
costs of the mediation shall be borne equally by the parties to the
dispute.
(a) It shall be a condition precedent to the right of any party to submit
any matter to arbitration pursuant to the provisions hereof, that any
party intending to refer any matter to arbitration shall have given not
less than 10 days’ prior notice of its intention to do so to the other party,
together with particulars of the matter in dispute. On the expiration of
such 10 days, the party who gave such notice may proceed to refer the
dispute to arbitration as provided in paragraph (b).
(b) The party desiring arbitration shall refer the dispute to binding
arbitration in Denver, Colorado under the Rules of American
Arbitration Association (“AAA”) by a single arbitrator selected by the
parties. If the parties cannot agree, an arbitrator from the Denver area
shall be selected by the AAA office in Denver. The arbitrator’s decision
shall be final, binding and non-appealable and may be enforced in any
court. The parties shall each pay a pro rata share of the arbitrator’s and
AAA’s charges for the arbitration. The arbitrator may, in his or her sole
discretion, award attorney fees and out-of-pocket expenses to that party
which the arbitrator, in its sole discretion, determines is the prevailing
party.
Finally, the agreement constituted “the entire agreement and understanding of the
Parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations.”
–3–
As set out in the pleadings and court orders in the record, the history of
disputes between Goldgroup and Dynaresource dates back to December 2012, when
Dynaresource sued Goldgroup in Texas. Goldgroup defended by arguing, among
other things, that Dynaresource’s claims were subject to arbitration. Dynaresource
dismissed the lawsuit in March 2014 and refiled it in Mexico (the Mexico lawsuit).3
Also in March 2014, Goldgroup made a demand against Dynaresource in Denver,
Colorado before the International Centre for Dispute Resolution of the American
Arbitration Association (AAA), and an arbitrator was appointed. On May 30, 2014,
Dynaresource filed a lawsuit seeking declaratory and injunctive relief against
Goldgroup in Federal District Court in Colorado. Dynaresource also raised
arguments that the Colorado arbitration should be stayed pending a determination of
arbitrability by courts in Mexico.
In September 2014, the arbitrator determined that he had authority to
determine jurisdiction under AAA rules because the rules were incorporated into the
arbitration agreement, and the arbitrator deferred ruling on all objections to
arbitrability until the merits. Between December 2014 and September 2015, the
Colorado arbitration, the Colorado Federal lawsuit, and the Mexico lawsuit were all
pending. In September 2015, the judge issued an order in DynaResource’s Colorado
Federal lawsuit, finding that the parties’ arbitration agreement remained operative,
3
As part of the Mexico lawsuit, Dynaresource also sought declaratory relief as to the invalidity of the
agreement’s arbitration provision.
–4–
at least some of Goldgroup’s claims were subject to arbitration, and nearly all
Dynaresource’s arguments against arbitrability were to be addressed by the
arbitrator.
In October 2015, the Mexico City Court issued an order declaring the
arbitration agreement “ineffective and impossible [of] enforcement,” providing that
Dynaresource recover from Goldgroup $28,280,808.34 in damages for Goldgroup’s
“breach of its obligation to refrain from doing something, when boasting as the
owner of the San Jose de Gracia project” and as “damages and lost profits resulting
from the breach of its corporate obligation to refrain from doing something, with
respect to the San Jose de Gracia mining project, as a result of lawful profits that
[Dynaresource] should have received . . . from the sale of gold that should have
occurred.”
In November 2015, the arbitrator, after being advised of the Mexican order,
issued a procedural order denying Dynaresource’s application to suspend
proceedings based on the Mexico City Court order and re-affirmed that a hearing on
the merits was set for November 16, 2015. Dynaresource contended that the order
from the court in Mexico City litigation was “way more mandatory than your
resolutions and even the Denver judge [sic] resolution” and ceased to participate in
any further arbitration proceedings.
In April 2016, Dynaresource dismissed the Colorado Federal lawsuit. In
August 2016, the arbitrator issued a Final Award in favor of Goldgroup, awarding
–5–
damages and attorney’s fees. Among other things, the arbitrator found insufficient
cause to excuse Dynaresource’s failure to participate in the arbitration, and
Dynaresource had no right to pursue arbitrability challenges in the Mexico City
lawsuit.
Goldgroup sought confirmation of the arbitration award in Colorado federal
court. In May 2019, the Colorado federal court granted Goldgroup’s motion to
confirm the arbitration award, denied Dynaresource’s motion to vacate the
arbitration award, and directed the clerk to close the case. The order began by noting
that “a reader may pause and wonder why this case [was] before the District of
Colorado when none of the parties are citizens of the state of Colorado and the
underlying events which gave rise to the parties’ dispute did not occur here.” The
order explained that the parties’ agreement expressly provided that “the party
desiring arbitration shall refer the dispute to binding arbitration in Denver,
Colorado,” including that venue and jurisdiction for any dispute related to the
agreement was to be in Denver. In April 2021, the United States Court of Appeals
for the Tenth Circuit affirmed the arbitration award.
In the interim, commencing in November 2015, Goldgroup began a series of
challenges to the Mexican court order in Mexico, culminating in the Mexican
Supreme Court’s dismissal of Goldgroup’s appeal in July 2019. In December 2019,
the Mexican Federal Appeal Court issued a “Final Ruling” affirming the Mexican
court order. In February 2020, the Mexican trial court issued a final judgment
–6–
foreclosing on all solely-held Goldgroup shares of DynaMexico in partial execution
of the Mexican monetary award.
In August 2020, Dynaresource again filed suit in Dallas County, this time
seeking to domesticate, through recognition, the Mexican court’s judgment.
Goldgroup filed a motion to vacate asserting seven grounds including a special
appearance averring it is a Canadian corporation with its principal place of business
in Vancouver, British Columbia, with no Texas contacts and improper service.
The Dallas County district court, following a hearing, issued an order of
dismissal for want of jurisdiction on November 30, 2020. In its order, the trial court
made the following findings:
1. DynaResource filed this action, pursuant to Chapter 36A of the
Texas Civil Practice and Remedies Code.
2. There has been no service of process, pursuant to Texas Rules of
Civil Procedure upon Goldgroup by DynaResource.
3. Goldgroup has not waived service of process in this action.
4. Goldgroup has not made a general appearance in this action.
5. Goldgroup has specifically objected to the Court’s jurisdiction based
upon DynaResource’s total failure to serve Goldgroup pursuant to
the Texas Rules of Civil Procedure.
On December 4, 2020, Dynaresource filed an Original Petition for
Recognition of Foreign Judgment in Dallas County district court. The petition
alleged personal jurisdiction was “not required in this recognition lawsuit” pursuant
to section 36A.005 of the Uniform Foreign Currency Money Judgments Recognition
Act (UFCMJRA). See TEX. CIV. PRAC. & REM. CODE ANN. § 36A.005. Specifically,
–7–
Dynaresource argued Goldgroup was properly personally served with process in the
Mexico lawsuit, was domiciled in Mexico, had a business office in Mexico and the
cause of action arose out of business done by Goldgroup through that office and a
foreign-country judgment may not be refused recognition for lack of personal
jurisdiction if these criteria are met. See id. § 36A.005(a).
On December 31, 2020, Goldgroup filed a special appearance asserting it was
a nonresident of Texas, had no assets in Texas, and had no purposeful contacts with
Texas. On January 4, 2021, Goldgroup filed a motion to dismiss on the grounds that
the parties’ express agreement designated Denver as the forum for any dispute. The
motion asserted that “the dispute that gave rise to the Mexico Judgment was directly
related to Goldgroup’s ownership interest and obligations in Dynaresource and the
San Jose de Gracia project, both of which the Agreement governed.” Goldgroup
argued the trial court was not required to recognize a foreign-country judgment if
“the proceeding in the foreign court was contrary to an agreement between the
parties under which the dispute in question was to be determined otherwise than by
proceedings in the foreign court.” See id. § 36A.004(c)(5). Because the case was
governed by a forum-selection clause that designated Denver as the forum for any
dispute, Goldgroup argued, Texas’ venue statutes did not apply.
On January 7, 2021, Goldgroup filed a motion for non-recognition. As it had
in the previous Texas suit, Goldgroup argued that the Mexico Judgment violated the
parties’ express agreement that venue and jurisdiction for any dispute between the
–8–
parties would be in Denver; the Mexico Judgment conflicted with a final and
conclusive judgment from the United States District Court for the District of
Colorado; and the UFCMJRA did not apply to the Mexico Judgment because (1) the
Mexico Judgment was not “final, conclusive, and enforceable” and (2) the Mexico
City court neither had personal jurisdiction over Goldgroup nor jurisdiction over the
subject matter.
On February 8, 2021, the trial court conducted a hearing on Goldgroup’s
special appearance and motion to dismiss. On May 12, 2021, the trial court entered
a final judgment granting Goldgroup’s special appearance, motion to dismiss, and
motion for non-recognition and denying Dynaresource’s motion for recognition of a
foreign judgment. This appeal followed.
To provide the appropriate context to the legal issues before us, we start with
an abbreviated primer of the UFCMJRA.
THE UFCMJRA FRAMEWORK4
Section 36A.006 of the UFCMJRA provides that, if recognition of a foreign-
country judgment is sought as an original matter, the issue of recognition may be
raised by filing an action seeking recognition of the foreign-country judgment. Id.
4
The UFCMJRA is a limited recognition statute fundamentally distinct from the recognition given to
a sister court judgment under the Uniform Enforcement of Foreign Judgments Act (UEFJA). See generally
National Conference of Commissioners on Uniform State Laws (NCCUSL) comment 1 accompanying
section 36A.006.
–9–
§ 36A.006.5 The issue of recognition always must be raised in a court proceeding.
Id. cmt. 1. The parties to an action in which recognition of a foreign-country
judgment is sought must comply with all state procedural rules with regard to that
type of action. Id. cmt. 4. Thus, by filing an action under section 36A.006, a party
is required to comply with the Texas Rules of Civil Procedure. See TEX. R. CIV. P.
2 (“These rules shall govern the procedure in the justice, county, and district courts
of the State of Texas in all actions of a civil nature.”).
The UFCMJRA provides the standards for recognition of foreign-country
judgments:
(a) Except as otherwise provided in Subsections (b) and (c), a court of
this state shall recognize a foreign-country judgment to which this
chapter applies.
(b) A court of this state may not recognize a foreign-country judgment
if:
(1) the judgment was rendered under a judicial system that does
not provide impartial tribunals or procedures compatible with the
requirements of due process of law;
(2) the foreign court did not have personal jurisdiction over the
defendant; or
(3) the foreign court did not have jurisdiction over the subject
matter.
(c) A court of this state is not required to recognize a foreign-country
judgment if:
5
Until the foreign judgment is recognized, there is no domesticated judgment for purposes of all
applicable challenges to a judgment afforded full faith and credit. Unlike a party in possession of a
registered judgment from a sister state, Dynaresource, as a judgment creditor has no right of enforcement
until the judgment is recognized. See TEX. CIV. PRAC. & REM. CODE §§ 35.008 and 36A.006, cmt. 1.
–10–
(1) the defendant in the proceeding in the foreign court did not
receive notice of the proceeding in sufficient time to enable the
defendant to defend;
(2) the judgment was obtained by fraud that deprived the losing
party of an adequate opportunity to present the party’s case;
(3) the judgment or the cause of action on which the judgment is
based is repugnant to the public policy of this state or the United
States;
(4) the judgment conflicts with another final and conclusive
judgment;
(5) the proceeding in the foreign court was contrary to an
agreement between the parties under which the dispute in
question was to be determined otherwise than by proceedings in
the foreign court;
(6) jurisdiction was based only on personal service and the
foreign court was a seriously inconvenient forum for the trial of
the action;
(7) the judgment was rendered in circumstances that raise
substantial doubt about the integrity of the rendering court with
respect to the judgment;
(8) the specific proceeding in the foreign court leading to the
judgment was not compatible with the requirements of due
process of law; or
(9) it is established that the foreign country in which the
judgment was rendered does not recognize judgments rendered
in this state that, but for the fact that they are rendered in this
state, would constitute foreign-country judgments to which this
chapter would apply under Section 36A.003.
(d) A party resisting recognition of a foreign-country judgment has the
burden of establishing that a ground for nonrecognition stated in
Subsection (b) or (c) exists.
TEX. CIV. PRAC. & REM. CODE ANN. § 36A.004. According to the NCCUSL
comments accompanying section 36A.004:
–11–
Recognition of a judgment means that the forum court accepts the
determination of legal rights and obligations made by the rendering
court in the foreign country. See, e.g. Restatement (Second) of
Conflicts of Laws, Ch. 5, Topic 3, Introductory Note (recognition of
foreign judgment occurs to the extent the forum court gives the
judgment “the same effect with respect to the parties, the subject matter
of the action and the issues involved that it has in the state where it was
rendered.”). Recognition of a foreign-country judgment must be
distinguished from enforcement of that judgment. Enforcement of the
foreign-country judgment involves the application of the legal
procedures of the state to ensure that the judgment debtor obeys the
foreign-country judgment. Recognition of a foreign-country money
judgment often is associated with enforcement of the judgment, as the
judgment creditor usually seeks recognition of the foreign-country
judgment primarily for the purpose of invoking the enforcement
procedures of the forum state to assist the judgment creditor’s
collection of the judgment from the judgment debtor. Because the
forum court cannot enforce the foreign-country judgment until it has
determined that the judgment will be given effect, recognition is a
prerequisite to enforcement of the foreign-country judgment.
Recognition, however, also has significance outside the enforcement
context because a foreign-country judgment also must be recognized
before it can be given preclusive effect under res judicata and collateral
estoppel principles. The issue of whether a foreign-country judgment
will be recognized is distinct from both the issue of whether the
judgment will be enforced, and the issue of the extent to which it will
be given preclusive effect.
Id. cmt. 2. The interplay between sections 36A.004 and 36A.005 is clarified by
NCCUSL comment 6 to section 36A.004:
Under § 36A.004(b)(2), the forum court must deny recognition to the
foreign-country judgment if the foreign court did not have personal
jurisdiction over the defendant. Section 36A.005(a) lists six bases for
personal jurisdiction that are adequate as a matter of law to establish
that the foreign court had personal jurisdiction. Section 36A.005(b)
makes clear that other grounds for personal jurisdiction may be found
sufficient.
Id. cmt. 6.
–12–
The purpose of recognition is two-fold—to domesticate a judgment for
purposes of enforcement and attain preclusive effect of that judgment. The
UFCMJRA does not address seeking recognition in a forum court when the
purported judgment debtor has no ties, no presence, and no assets in the forum state.
This appeal directly implicates this issue.
ANALYSIS
As a threshold matter, it is antithetical to our system of justice to be able to
file a suit for recognition of a judgment when the purported judgment debtor has no
ties to the state in which recognition is sought, either through assets to attach or seize
by enforcement or personal jurisdiction over the judgment debtor.6 Dynaresource
does not dispute the lack of nexus to Texas, rather it contends the trial court had
subject matter jurisdiction “because section 36A.006(a) of the Uniform Act specifies
that recognition of a foreign Judgment may be accomplished via an original action
in this Court.” Other than the venue provision,7 Dynaresource provides no facts in
support of filing for recognition in Texas.
The NCCUSL comment to Section 36A.006 is clear that:
While this Section sets out the ways in which the issue of recognition
of a foreign-country judgment may be raised, it is not intended to create
any new procedure not currently existing in the state or to otherwise
6
The Due Process Clause “does not contemplate that a state may make binding a judgment . . . against
an individual or corporate defendant with which the state has no contacts, ties, or relations.” International
Shoe Co. v. Washington, 326 U.S. 310 (1945).
7
We note without additional comment or analysis that Dynaresource relies on section 15.002(a)(4) of
the Texas Civil Practice and Remedies Code to assert venue is proper in Dallas County as both its non-
party parent company DynaUSA as well as DynaMexico have principal places of business here.
–13–
effect existing state procedural requirements. The parties to an action
in which recognition of a foreign-country judgment is sought under
§36A.006 must comply with all state procedural rules with regard to
that type of action. Nor does this Act address the question of what
constitutes a sufficient basis for jurisdiction to adjudicate with regard
to an action under §36A.006.
Id. cmt. 4. Further, the NCCUSL notes the courts are split on the issue of whether
the presence of debtor assets is a sufficient basis for jurisdiction and that the Act
takes no position on that issue. Id.8
We take the position and expressly conclude that the Texas Rules of Civil
Procedure apply to a UFCMJRA recognition suit, including Rule 120a, with
attendant application of Texas jurisprudence to those rules. As set forth below,
consistent with constitutional due process considerations, the Texas rules and
jurisprudence require some articulated semblance of a Texas tie to the debtor; thus,
Dynaresource’s venue pleadings alone are insufficient to maintain the recognition
suit in Dallas, Texas.
Special Appearance
In its first issue, Dynaresource argues the trial court erred in granting
Goldgroup’s special appearance. Whether a trial court has personal jurisdiction over
8
In so noting, the NCCUSL references Shaffer v. Heitner, 433 U.S. 186, 210 n.36 (1977) (“Once it has
been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there
would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant
has property, whether or not that State would have jurisdiction to determine the existence of the debt as an
original matter.”). We find the Shaffer opinion, its historical analysis of International Shoe, and its progeny
instructive in concluding that a nexus to Texas, either in rem or in personam, is required to exercise
jurisdiction over a defendant/judgement debtor. Id. at 213 (“We therefore conclude that all assertions of
state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its
progeny”) (footnote omitted).
–14–
a nonresident defendant is a question of law that appellate courts review de novo.
See Steward Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 125 (Tex. App.—
Dallas 2021, no pet.) (en banc) (citing Old Republic Nat’l Title Ins. Co. v. Bell, 549
S.W.3d 550, 558 (Tex. 2018)). When a trial court does not issue findings of fact and
conclusions of law with its special appearance ruling, all facts necessary to support
the judgment and supported by the evidence are implied. Id. When the appellate
record includes the reporter’s and clerk’s records, these implied findings are not
conclusive and may be challenged for legal and factual sufficiency in the appropriate
appellate court. Id. at 125–26 (citing BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 795 (Tex. 2002)). When the relevant facts in a case are undisputed, an
appellate court need not consider any implied findings of fact and considers only the
legal question of whether the undisputed facts establish Texas jurisdiction. See id.at 126 (citing Old Republic, 549 S.W.3d at 558).
Courts have recognized two types of personal jurisdiction: “general”
jurisdiction and “specific” jurisdiction. See Bristol-Myers Squibb Co. v. Superior
Ct. of Cal., 582 U.S. 255, 262 (2017). For an individual, the paradigm forum for the
exercise of general jurisdiction is the individual’s domicile; for a corporation, it is
an equivalent place, one in which the corporation is fairly regarded as at home. See
id. A court with general jurisdiction may hear any claim against that defendant, even
if all the incidents underlying the claim occurred in a different State. See id. But
–15–
“only a limited set of affiliations with a forum will render a defendant amenable to”
general jurisdiction in that State. See id.Specific jurisdiction exists when (1) the defendant has “made minimum
contacts with Texas by purposefully availing itself of the privilege of conducting
activities [in the state],” and (2) the defendant’s potential liability arose from or is
related to those contacts. In re Christianson Air Conditioning & Plumbing, LLC,
639 S.W.3d 671, 679 (Tex. 2022) (orig. proceeding) (quoting Moki Mac River
Expeditions v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007)). To show purposeful
availment, a plaintiff must prove that a nonresident defendant seeks a benefit,
advantage, or profit from the forum market. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 785 (Tex. 2005). Only the defendant’s contacts are
relevant, not the unilateral activity of another party or third person. See id. And
those contacts “must be purposeful rather than random, fortuitous, or attenuated.”
Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 151 (Tex. 2013) (quoting
Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338–39 (Tex.
2009)).
The plaintiff bears the initial burden of pleading sufficient allegations to bring
a nonresident defendant within the provisions of the Texas long-arm statute.
Saidara, 633 S.W.3d at 126 (citing Old Republic, 549 S.W.3d at 559); Moncrief Oil,
414 S.W.3d at 149. In order to meet its burden, a plaintiff must show the act on
which jurisdiction is predicated, not a prima facie demonstration of the existence of
–16–
a cause of action. Bruno’s Inc. v. Arty Imports, Inc., 119 S.W.3d 893, 896–97 (Tex.
App.—Dallas 2003, no pet.); Clark v. Noyes, 871 S.W.2d 508, 511 (Tex. App.—
Dallas 1994, no pet.). This minimal pleading requirement is satisfied by an
allegation that the nonresident defendant is doing business in Texas or committed
tortious acts in Texas. Saidara, 633 S.W.3d at 126. If the plaintiff does not meet
this burden, the defendant need only prove that it does not reside in Texas to negate
jurisdiction. See Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex.
1982).
Here, Dynaresource argues the trial court erred in granting Goldgroup’s
special appearance “where the UFCMJRA clearly and unequivocally provides that
a Court may not deny Recognition of a Foreign Judgment for lack of personal
jurisdiction over the Judgment Debtor.” In making this argument, Dynaresource
relies on two Texas cases: Haaksman v. Diamond Offshore (Bermuda), Ltd., 260
S.W.3d 476 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) and Beluga
Chartering B.V. v. Timber S.A., 294 S.W.3d 300, 305 (Tex. App.—Houston [14th
Dist.] 2009, no pet.). These cases stand for the proposition that, under the version
of the UFCMJRA in effect at the time, a challenge to a Texas court’s personal
jurisdiction was not available under the UFCMJRA. Beluga, 294 S.W.3d at 305
(citing Haaksman, 260 S.W.3d at 480–81). These cases hold that the language of
the UFCMJRA did not require personal jurisdiction over a judgment debtor in Texas
as a prerequisite for enforcing a foreign country judgment in Texas. Id. (citing
–17–
Haaksman, 260 S.W.3d at 479–80).9 The court in Beluga determined that, based on
Haaksman, the trial court properly denied the special appearance of Beluga, the
debtor on a Uruguayan judgment. Id. at 305. However, these cases relied on a
chapter of the civil practice and remedies code that was entirely repealed in 2017.
See Acts 2017, 85th Leg, ch. 390 (S.B. 944), § 2, effective June l, 2017 (repealing
sections 36.001 to 36.008).
In conjunction with the cited cases, Dynaresource relies on section
36A.005(a)(1) of the current UFCMJRA, which provides that a foreign-country
judgment may not be refused recognition for lack of personal jurisdiction if the
defendant was served with process personally in the foreign country. See TEX. CIV.
PRAC. & REM. CODE ANN.§ 36A.005(a)(1).10 Dynaresource conflates the former
repealed and current versions of section 36A.005(a)(1) and pre-2017 authorities to
support its contention that a judgment debtor is not entitled to make a special
appearance in Texas court challenging personal jurisdiction in an action brought
under the UFCMJRA. We decline to follow Dynaresource’s line of reasoning.
The rationale in Beluga and Haaksman, on which Dynasource relies in
arguing that a special appearance is not available in a proceeding under the
9
By our analysis we are strictly separating proceedings seeking recognition of a foreign judgment under
the UFCMJRA from proceedings to enforce a foreign judgment once recognized, which the UFCMJRA
does not address.
10
The current version of section 36A.005 provides a non-exclusive list of bases upon which a foreign
judgment may not be refused recognition for lack of personal jurisdiction, all dependent upon the
defendant’s relationship to the foreign country.
–18–
UFCMJRA, premised as it is upon a repealed version of the UFCMJRA, is not
determinative here. See Beluga, 294 S.W.3d at 305; Haaksman, 260 S.W.3d at 480–
81. NCCUSL comment 6 to section 36A.004 makes clear that, contrary to
Dynaresource’s contention, the reference to “lack of personal jurisdiction” in section
36A.005(a)(1) refers to the lack of personal jurisdiction in a foreign court, which
may preclude a court of this state from recognizing a foreign-country judgment
under section 36A.004(b)(2). See id.The procedural mechanism of a special appearance is solely “for the purpose
of objecting to the jurisdiction of the court over the person or property of the
defendant on the ground that such party or property is not amenable to process issued
by the courts of this State.” TEX. R. CIV. P. 120a. While the UFCMJRA specifically
addresses service of process as it relates to the underlying foreign court, it provides
no guidance as to the formalities of recognition proceedings, requisites of filing, or
specified notice of the proceeding to the judgment debtor. We therefore look to the
laws and rules of procedure of this state for guidance. TEX. R. CIV. P. 1, 2. Basic
state and federal constitutional constructs of due process require notice and an
opportunity to be heard. See Roper v. Jolliffe, 493 S.W.3d 624, 636 (Tex. App.—
Dallas 2015, pet. denied) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(“Due process at a minimum requires notice and an opportunity to be heard at a
meaningful time and in a meaningful manner.”)).
–19–
Texas rules provide for a special appearance in response to an original court
proceeding to telegraph to the court the lack of personal jurisdiction or nexus to
Texas. TEX. R. CIV. P. 120a. Goldgroup, as the party resisting recognition of a
foreign-country judgment, has the statutory burden of establishing that a ground for
nonrecognition exists,11 while simultaneously avoiding the adverse consequence of
subjecting itself to this state’s jurisdiction for all purposes. The trial court clearly
granted Goldgroup’s special appearance while simultaneously ruling on motions to
dismiss, for recognition and for non-recognition.
Because Dynaresource does not challenge the granting of Goldgroup’s
special appearance on any other grounds than those raised and rejected above, we
conclude the trial court did not err in granting Goldgroup’s special appearance. See
Siskind, 642 S.W.2d at 438. We overrule Dynaresource’s first issue.
Once it granted Goldgroup’s special appearance, the trial court lacked
jurisdiction to proceed further with the underlying recognition proceeding. See TEX.
R. CIV. P. 120a (special appearance made for purpose of objecting to jurisdiction of
the court); see generally Shaffer, 433 U.S. at 216–17 (assertion of jurisdiction
inconsistent with constitutional limitation on state power.); see also Int’l Shoe, 326
U.S. at 319. We therefore conclude the trial court erred in proceeding to rule on the
11
TEX. CIV. PRAC. & REM. CODE ANN. § 36A.004 (d).
–20–
merits of Dynaresource’s claims. See TEX. R. CIV. P. 120a. Accordingly, we need
not further address Dynaresource’s remaining issues.
We affirm the trial court’s judgment granting Goldgroup’s special
appearance; in all other respects, we reverse the trial court’s judgment and render
judgment dismissing for lack of jurisdiction Dynaresource’s motion for recognition
of a foreign judgment and Goldgroup’s motion to dismiss and motion for non-
recognition.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
210362F.P05
–21–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DYNARESOURCE DE MÉXICO On Appeal from the 134th Judicial
S.A. DE C.V. AND District Court, Dallas County, Texas
DYNARESOURCES INC., Trial Court Cause No. DC-20-17887.
Appellants Opinion delivered by Justice
Goldstein. Justices Carlyle and
No. 05-21-00362-CV V. Breedlove participating.
GOLDGROUP RESOURCES INC.,
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court granting Goldgroup Resources Inc.’s special appearance is AFFIRMED. In
all other respects, the trial court’s judgment is REVERSED, and judgment is
RENDERED that Dynaresource’s motion for recognition of a foreign judgment
and Goldgroup’s motion to dismiss and motion for non-recognition are
DISMISSED for lack of jurisdiction.
It is ORDERED that appellee GOLDGROUP RESOURCES INC. recover
its costs of this appeal from appellants DYNARESOURCE DE MÉXICO S.A. DE
C.V. AND DYNARESOURCES INC..
Judgment entered May 2, 2023.
–22–