Devon Energy Corporation and Devon Energy Production Company. L.P. v. Brian Cormier

Opinion issued November 14, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00921-CV
———————————
DEVON ENERGY CORPORATION AND DEVON ENERGY
PRODUCTION COMPANY, L.P., Appellants
V.
BRIAN CORMIER, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2020-18832
MEMORANDUM OPINION
Appellee, Brian Cormier, a Louisiana resident, sued appellants, Devon
Energy Corporation (DEC) and Devon Energy Production Company, L.P.,
(DEPCO) (collectively, the Devon Entities), for personal injuries he sustained
while working on a drilling rig in New Mexico. In this interlocutory appeal, the
Devon Entities challenge the trial court’s order denying their special appearances.
In two issues, the Devon Entities contend that the trial court could not properly
exercise either specific or general personal jurisdiction over them. Because we
agree with the Devon Entities that Cormier’s pleading failed to establish the
existence of personal jurisdiction over them, we reverse the trial court’s order and
render judgment dismissing Cormier’s claims against the Devon Entities for lack
of personal jurisdiction.
Background
Cormier, a Louisiana resident, worked on a land-based oil rig located in
New Mexico on property owned and operated by the Devon Entities. Cormier was
employed by Nabors Drilling Technologies USA, Inc., a Texas corporation with
headquarters in Harris County, Texas.1 Cormier alleged that he was thrown from
the rig and suffered severe injuries to his back and other parts of his body.
On March 23, 2020, Cormier filed suit against Nabors Drilling and the
Devon Entities, alleging causes of action for negligence, negligence per se, and
gross negligence. He alleged that the defendants’ failure to properly manage the
drilling operations on the job site in New Mexico resulted in serious injuries, and
he sought damages including medical expenses, physical pain and mental anguish,
lost earnings and loss of future earning capacity as well as punitive damages.
1
Nabors Drilling was named as a defendant in Cormier’s lawsuit, but it was
nonsuited and thus is not a party to the special appearance or to this appeal.
2
Regarding jurisdiction, Cormier alleged that the trial court had jurisdiction
over the defendants “because they are Texas residents, conduct a substantial
amount of business in Texas, and/or the cause of action accrued in Texas.” With
respect to DEC specifically, Cormier alleged that it “does a substantial amount of
business in Harris County, Texas” and “even has a building in downtown Houston
named after it.” He alleged that DEPCO also “does a substantial amount of
business in Harris County, Texas.”
The Devon Entities specially appeared on April 27, 2020, asserting that
Cormier had not and could not plead sufficient jurisdictional facts to establish that
they had minimum contacts with Texas to confer either general or specific personal
jurisdiction on the trial court. DEC is a Delaware company with headquarters in
Oklahoma. DEPCO, a subsidiary of DEC, is an Oklahoma company with
headquarters in Oklahoma. They asserted that, because they were neither
incorporated in nor headquartered in Texas, nor did they maintain sufficient
contacts with the state to render them “essentially at home,” the trial court could
not assert general jurisdiction over them. They further asserted that the accident
occurred in New Mexico, and none of the operative facts of the litigation
connected them with the State of Texas, and, thus, Cormier could not establish the
existence of specific jurisdiction.
3
The Devon Entities then filed a verified denial and original answer subject to
their special appearance, also on April 27, 2020.
Cormier responded to the Devon Entities’ special appearances, asserting
additional facts in support of his contention that the trial court could properly
exercise personal jurisdiction. He stated that the Devon Entities (1) own “over one
hundred thousand acres of land in Texas” and profit from those acres; (2) operate
“countless drilling rigs in Texas” and produce at least 47,000 barrels of oil a day
from that drilling; (3) advertise “that 15% of [their] production originated from
Texas in 2019”; (4) engage in “litigating other cases in Harris County without
contesting jurisdiction.” Cormier further referenced the Devon Energy website,
pointing out that it “has an entire webpage dedicated to its Texas Operations.” The
webpage referred to the Devon Entities interest in the Eagle Ford shale in DeWitt
County, Texas.
Cormier’s response also referenced facts established during its deposition of
the Devon Entities’ corporate representative, Kevin Harwi. Harwi was employed
by DEPCO as a land manager and testified as the corporate representative of both
Devon Entities. Harwi stated that DEPCO has “limited Texas operations,”
testifying that “we do not have any drilling operations in the State of Texas, and
we have a—an interest in a number of wells in two counties in the Eagle Ford in
South Texas.” Harwi identified DeWitt and Karnes counties as the location of
4
those interests, which he described as “a joint working interest [with] BPX, which
is British Petroleum’s operating arm in the United States.” Harwi testified that
BPX operated all of the drilling and completion operations in the Eagle Ford, and
Devon has “a 50 percent ownership with BPX [in] about a hundred thousand net
acres.” Devon’s interest in the Eagle Ford shale dated back to December 2013 and
Harwi expected that Devon would continue to hold that interest for the foreseeable
future. Harwi stated that 47,000 barrels of oil per day—the net production from the
Eagle Ford interest—could represent 15 percent of the company’s production,
although he did not know the company’s total production. He testified that the
Eagle Ford interest “is one small piece of our business . . . in context to the rest of
the organization.” Harwi testified that the number of Devon employees working in
Texas varies from time to time.
After several continuances, the trial court held a hearing on the Devon
Entities special appearance on April 7, 2021. On the record at the hearing, the trial
court denied the Devon Entities’ special appearance, but it did not sign an order
denying the special appearance.
This Court subsequently issued its opinion in Devon Energy Corporation v.
Moreno, reversing the denial of a special appearance on substantially similar
allegations against the same Devon Entities and rendering judgment dismissing the
plaintiff’s claims for lack of personal jurisdiction. No. 01-21-00084-CV, 2022 WL
5
547641 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.) (mem. op.). In
light of this opinion, on June 30, 2022, the Devon Entities filed a motion for
reconsideration of their special appearances. In the motion to reconsider, the
Devon Entities pointed out that the trial court heard and orally denied the special
appearance on April 7, 2021, but “did not enter the accompanying Order” and that,
as of the date of the motion, “an Order has not been entered.”
The Devon Entities’ motion prompted further briefing between the parties.
The trial court ultimately signed an order on December 5, 2022, stating that it “has
considered Defendants Devon Energy Corporation’s and Devon Energy Production
Company, L.P.’s Special Appearance” and ordered that the Devon Entities’
“Special Appearance is DENIED.” This appeal followed, with the Devon Entities
filing their notice of appeal on December 13, 2022. See TEX. CIV. PRAC. & REM.
CODE § 51.014(a)(7).
Appellate Jurisdiction
As a preliminary matter, Cormier argues that the Devon Entities’ appeal was
untimely, stating that it is “both jurisdictionally barred and procedurally defective.”
Cormier asserts that the Devon Entities failed to file their notice of appeal
within 20 days of the trial court’s denial of their special appearance. Cormier,
however, bases this argument on the trial court’s oral ruling denying the Devon
Entities’ special appearance, which occurred on April 7, 2021. The trial court
6
signed its written order denying the special appearance on December 5, 2022,
nearly 20 months after its oral ruling.
Texas Rule of Appellate Procedure 26.1 provides that the time for filing an
appeal runs from the date the order is signed. See TEX. R. APP. P. 26.1(b) (“[I]n an
accelerated appeal, the notice of appeal must be filed within 20 days after the
judgment or order is signed[.]” (emphasis added)). Texas courts have uniformly
held that appellate deadlines run from the time the order or judgment is signed, not
from the time it is announced or rendered. See, e.g., Baker v. Bizzle, 687 S.W.3d
285, 291 (Tex. 2024) (“Reducing a decision to final judgment has three phases:
(1) rendition; (2) signing; and (3) entry. Rendition and signing are judicial acts that
can, but need not, occur at the same time.”); Id. at 301 & n. 3 (Justice Young,
concurring) (noting that rules of procedure “trigger a host of vital deadlines or
consequences based not on when judges render a judgment but when they sign it”
and citing Rule of Appellate Procedure 26.1); Farmer v. Ben E. Keith Co., 907
S.W.2d 495, 496 (Tex. 1995) (providing that “appellate timetable runs from the
signing date of whatever order that makes a judgment final and appealable”);
Palma v. Sterling Assoc. Servs., Inc., No. 01-23-00805-CV, 2024 WL 3973440, at
*3 (Tex. App.—Houston [1st Dist.] Aug. 29, 2024, no pet.) (applying Rule 26.1
and calculating time for filing notice of appeal from date judgment was signed);
Empire Equipment Int’l v. Pipeline Machinery Int’l, L.P., No. 02-09-001234-CV,
7
2011 WL 754340, at *3 (Tex. App.—Fort Worth Mar. 3, 2011, pet. denied) (mem.
op.) (rejecting challenge to appellate jurisdiction that was “based entirely on the
incorrect premise that appellate timetables run from the date that judgment is
rendered rather than the date that the judgment is signed,” and holding, “For
purposes of appellate timetables, such as the appellate timetable involved here for
filing a notice of appeal, the critical date is the date on which the judgment or
appealable order is signed”).
Cormier also contends that the December 5 order was not a ruling on the
special appearance but was a denial of the Devon Entities’ motion to reconsider.
This contention is not supported by the record. The motion to reconsider stated that
the trial court heard and orally denied the special appearance on April 7, 2021, but
“did not enter the accompanying Order” and that, as of the date of the motion to
reconsider, “an Order has not been entered.” The trial court signed the underlying
order on December 5, 2022, stating that it “has considered [Devon Entities’]
Special Appearance” and determined that it should be denied. Thus, the trial
court’s December 5 order was the signed order denying the special appearance.
Because the Devon Entities filed their notice of appeal within 20 days after
the trial court signed the order denying their special appearance, their appeal was
timely. See TEX. R. APP. P. 26.1(b).
8
Cormier argues, alternatively, that the Devon Entities waived their special
appearance, asserting, “Assume once more—again, incorrectly—that the trial
court’s April 2021 [oral] denial of the Devon Defendants’ special appearance was
not an actual ruling. In that case, the Devon Defendants made general appearances
by requesting new trial dates and filing a motion for continuance of trial, thus
waiving their jurisdictional objection.” Thus, Cormier argues that the Devon
Entities waived their special appearances by making general appearances and then
requesting a trial date and moving for a continuance.2
We first observe that Texas courts make a distinction between rendition of a
judgment or oral pronouncement of a ruling and the signing of the accompanying
judgment or order. See Baker, 687 S.W.3d at 291; Empire Equipment Int’l, 2011
WL 754340, at *3. As set out above, we hold that the appellate deadlines run from
the trial court’s signing of the order denying the special appearance. This holding
does not mean, however, that the trial court’s oral ruling was not a determination
of the special appearance for purposes of Rule of Civil Procedure 120a.
2
The Devon Entities contend that they did not request a trial date, and it was instead
Cormier who requested a new trial date at the conclusion of the hearing on the
special appearance. The hearing record demonstrates that, after the trial court
announced its denial of the special appearance, the attorney for the Devon Entities
informed the court that the case was “set for trial on April 5th,” a date that had
already passed. Cormier’s attorney then pointed out that “we need to get a new
date.” Thus, it does not appear that the Devon Entities “requested a trial date.”
And in any event, any mention of a new trial setting was made after the trial court
determined the special appearance. See TEX. R. CIV. P. 120a(2).
9
Under Rule 120a, a properly entered special appearance enables a
nonresident defendant to challenge personal jurisdiction in a Texas court. TEX. R.
CIV. P. 120a. Rule 120a(1) mandates that a special appearance be filed “prior to [a]
motion to transfer venue or any other plea, pleading or motion; provided however,
that a motion to transfer venue and any other plea, pleading, or motion may be
contained in the same instrument or filed subsequent thereto without waiver of
such special appearance[.]” Id.; Exito Electronics Co. v. Trejo, 142 S.W.3d 302,
305 (Tex. 2004) (referring to Rule 120a(1) as “the due-order-of-pleading
requirement”). Rule 120a also incorporates a “due-order-of-hearing” requirement,
which provides that a special appearance motion “shall be heard and determined
before a motion to transfer venue or any other plea or pleading may be heard.”
TEX. R. CIV. P. 120a(2).
Here, the Devon Entities filed their answer after and subject to their special
appearance. The trial court held the hearing on the special appearance and made its
oral determination prior to hearing any other plea or pleading. Nothing in the
record indicates activity by the Devon Entities that violated the due order
requirements of Rule 120a. See id. Cormier points to the Devon Entities’ actions
of, for example, moving for a continuance of the trial date. Not only did the Devon
Entities seek resolution of its special appearance before seeking any further relief
from the trial court, but none of the activities referenced by Cormier constituted a
10
request for affirmative relief inconsistent with the Devon Entities’ assertion that
the trial court lacked personal jurisdiction. See Exito Electronics, 142 S.W.3d at
305–306 (considering whether party requested affirmative relief inconsistent with
jurisdictional challenge in determining special appearance was not waived, citing
Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex. 1998)).
We conclude that the Devon Entities’ interlocutory appeal of the trial court’s
special-appearance ruling is properly before this Court.
Special Appearance
The Devon Entities argue that the trial court erred in denying their special
appearances. They argue that the trial court cannot exercise general jurisdiction
over them because they were not formed in or headquartered in Texas. They
further argue that there is no connection between the operative facts of the
litigation—which involves alleged injuries sustained on a jobsite in New Mexico—
and Texas, and, therefore, the trial court could not exercise specific jurisdiction
over them.
A. Standard of Review
We review de novo a trial court’s determination of a special appearance.
Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex. 2010); Moreno,
2022 WL 547641, at *4; see also PetroSaudi Oil Servs. Ltd. v. Hartley, 617
S.W.3d 116, 132 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (“Whether a trial
11
court has personal jurisdiction over a nonresident defendant is a question of law
that we review de novo.”). “When, as here, the trial court does not issue findings of
fact or conclusions of law, all fact findings necessary to support the judgment and
supported by the evidence are implied.” Moreno, 2022 WL 547641, at *4 (citing
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). A
trial court determines a “special appearance on the basis of the pleadings, any
stipulations made by and between the parties, such affidavits and attachments as
may be filed by the parties, the results of discovery processes, and any oral
testimony.” TEX. R. CIV. P. 120a(3). On appeal, the scope of review includes all of
the evidence in the record. PetroSaudi Oil Servs., 617 S.W.3d at 132.
“[T]he plaintiff and the defendant bear shifting burdens of proof in a
challenge to personal jurisdiction.” Kelly, 301 S.W.3d at 658; see LG Chem Am.,
Inc. v. Morgan, 670 S.W.3d 341, 346 (Tex. 2023). Initially, the plaintiff bears the
burden “to plead sufficient allegations to bring the nonresident defendant within
the reach of [Texas’s] long-arm statute.” LG Chem, 670 S.W.3d at 346. The
defendant then bears the burden to negate all bases of personal jurisdiction alleged
by the plaintiff on either a factual or legal basis. Id. The defendant “can present
evidence that contradicts the plaintiff’s factual allegations supporting the assertion
of personal jurisdiction, and the plaintiff can then respond with its own evidence
supporting its allegations,” or “the defendant can show that even if the plaintiff’s
12
alleged facts are true, the evidence is legally insufficient to establish personal
jurisdiction.” Id.
B. Exercise of Personal Jurisdiction.
“Texas courts may assert personal jurisdiction over a nonresident defendant
if (1) the Texas long-arm statute so provides and (2) the exercise of jurisdiction ‘is
consistent with federal and state due process guarantees.’” State v. Volkswagen
Aktiengesellschaft, 669 S.W.3d 399, 412 (Tex. 2023) (quoting Spir Star AG v.
Kimich, 310 S.W.3d 868, 872 (Tex. 2010)). Texas’s long-arm statute reaches as far
as federal constitutional requirements of due process permit. Id. It “permits courts
to exercise jurisdiction over a defendant who ‘does business in this state.’” LG
Chem, 670 S.W.3d at 346 (quoting TEX. CIV. PRAC. & REM. CODE § 17.042).
Federal due process standards require that the defendant have “certain
minimum contacts with [the forum state] such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial justice.’” PetroSaudi Oil
Servs., 617 S.W.3d at 133 (quoting Old Republic Nat’l Title Ins. Co. v. Bell, 549
S.W.3d 550, 559 (Tex. 2018)). “A defendant establishes minimum contacts with a
forum state when it ‘purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its
laws.’” Id. (quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d
333, 338 (Tex. 2009)).
13
In considering a defendant’s contacts with this State, “only the defendant’s
contacts with the forum are relevant.” Bell, 549 S.W.3d at 559 (quoting Moncrief
Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 151 (Tex. 2013)). “The contacts
relied upon must be purposeful rather than random, fortuitous, or attenuated.” Id.And “the defendant must seek some benefit, advantage or profit by availing itself
of the jurisdiction.” Id. “We assess the quality and nature of the contacts, not the
quantity.” PetroSaudi Oil Servs., 617 S.W.3d at 134.
A defendant’s contacts with the forum may give rise to either general or
specific jurisdiction. Bell, 549 S.W.3d at 559; PetroSaudi Oil Servs., 617 S.W.3d
at 134. Specific jurisdiction exists when the defendant’s purposeful contacts are
“substantially connected to the operative facts of the litigation or form the basis of
the cause of action.” Bell, 549 S.W.3d at 559–60. In analyzing for specific
jurisdiction, the focus is on “the relationship between the forum, the defendant, and
the litigation.” Id. at 559.
“[A] court has general jurisdiction over a defendant only if its ‘affiliations
with the [s]tate are so continuous and systematic as to render it essentially at home
in the forum [s]tate.’” Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016)
(quoting Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)) (alterations in
original). “Courts do not have general jurisdiction over corporate defendants that
are neither incorporated in the forum state nor have their principal place of
14
business there, absent some relatively substantial contacts with the forum state.”
Id.C. Specific Jurisdiction
In their first issue, the Devon Entities assert that the trial court could not
properly exercise specific jurisdiction over Cormier’s claims against them.
Cormier concedes that only general jurisdiction is at issue here. He did not argue,
in the trial court or on appeal, that the Devon Entities’ contacts with Texas are
“substantially connected to the operative facts of the litigation or form the basis of
the cause of action.” See Bell, 549 S.W.3d at 559–60. The events giving rise to
Cormier’s claims against the Devon Entities occurred in New Mexico, and
Cormier does not allege any facts creating a nexus between the forum, the
defendant, and the litigation. See id. at 559; see also Moreno, 2022 WL 547641, at
*8 (holding, where “Moreno, a Texas resident, brought negligence claims in a
Texas court, complaining of injuries sustained while working outside the Texas
forum and based on allegations of acts or omissions occurring outside the Texas
forum,” that Texas trial court lacks specific jurisdiction over Devon Entities,
stating, “Even if the Devon Entities have minimum contacts with Texas, the
complained-of liability and injuries do not arise from or relate to those contacts.”).
15
Accordingly, the trial court could not exercise personal jurisdiction over
either of the Devon Entities based on specific jurisdiction. We sustain the Devon
Entities’ first issue.
D. General Jurisdiction
The Devon Entities further argue in their second issue that the trial court
could not have found general jurisdiction over them. We agree with the Devon
Entities.
“A state court may exercise general jurisdiction only when a defendant is
‘essentially at home’ in the State.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,
592 U.S. 351, 358 (2021) (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011)). “For a corporation the ‘paradigm’ forums for
the exercise of general jurisdiction are the place of incorporation and its principal
place of business.” PetroSaudi Oil Servs., 617 S.W.3d at 134 (citing Daimler AG,
571 U.S. at 137). However, “[t]he exercise of general jurisdiction is not limited to
these forums; in an ‘exceptional case,’ a corporate defendant’s operations in
another forum ‘may be so substantial and of such a nature as to render the
corporation at home in that State.’” BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 413
(2017) (quoting Daimler AG, 571 U.S. at 139 n.19).
Operations substantial enough to render a nonresident corporation “at home”
requires more than contacts that are, in some sense, continuous and systematic
16
contacts. See Daimler AG, 571 U.S. at 137–39; Searcy, 496 S.W.3d at 72
(“Continuous and systematic contacts that fail to rise to this relatively high level
are insufficient to confer general jurisdiction over a nonresident defendant.”). The
general jurisdiction inquiry “does not focus solely on the magnitude of the
defendant’s in-state contacts.” BNSF Ry. Co., 581 U.S. at 414. “Rather, the inquiry
‘calls for an appraisal of a corporation’s activities in their entirety’; ‘[a]
corporation that operates in many places can scarcely be deemed at home in all of
them.’” Id. (quoting Daimler AG, 571 U.S. at 140 n. 20).
It is undisputed that neither DEC nor DEPCO is incorporated in Texas, nor
does either Devon Entity have its principal place of business in Texas. See Searcy,
496 S.W.3d at 72 (“Courts do not have general jurisdiction over corporate
defendants that are neither incorporated in the forum state nor have their principal
place of business there, absent some relatively substantial contacts with the forum
state.”); see also Moreno, 2022 WL 547641, at *8 (observing that plaintiff “did not
present any evidence in rebuttal to establish that DEC or DEPCO is either
incorporated in Texas or has its principal place of business in Texas,” and so “the
jurisdictional evidence establishes that Texas is not one of the paradigmatic forums
in which the Devon Entities may be fairly regarded as being ‘at home’”).
Cormier argued in the trial court and on appeal that the Devon Entities’
“continuous and systematic” activities in Texas support a finding of general
17
jurisdiction, arguing that the Devon Entities’ business activities in Texas “are so
continuous and systematic as to render [them] essentially at home in Texas.”
Cormier presented evidence of the nature of the Devon Entities’ business activities
in Texas. The Devon Entities own “over one hundred thousand acres of land in
Texas” as part of a joint venture with BPX in the Eagle Ford shale, and they profit
from those acres. The Devon Entities’ involvement with the Eagle Ford shale in
DeWitt and Karnes Counties also involves, to some extent, the operation of
“countless drilling rigs in Texas” that produce at least 47,000 barrels of oil a day.
The Devon Entities advertised “that 15% of [their] production originated from
Texas in 2019.” Cormier further asserted that the Devon Entities have employees
in Texas and an office building in downtown Houston. Finally, Cormier asserted
that the Devon Entities were engaged in “litigating other cases in Harris County
without contesting jurisdiction.”
We first observe that Cormier does not distinguish between the ownership
interests, production, employees, or other activities of DEC and DECPO and
instead refers to the activities of “Devon Energy” or the Devon Entities generally.
However, “[w]hen a case involves multiple defendants, as here, the plaintiff must
specify, and the court must examine, ‘each defendant’s actions and contacts with
the forum separately.’” Moreno, 2022 WL 547641, at *4, 13 (holding that “the
defendants’ contacts cannot be aggregated”); see also Calder v. Jones, 465 U.S.
18783, 790 (1984) (“Each defendant’s contacts with the forum State must be assessed
individually.”); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,
785 (Tex. 2005) (“[I]t is only the defendant’s contacts with the forum that
count[.]”); Loya v. Taylor, No. 01-14-01014-CV, 2016 WL 6962312, at *3 (Tex.
App.—Houston [1st Dist.] Nov. 29, 2016, pet. denied) (mem. op.) (holding that
when case involves multiple defendants, their contacts cannot be aggregated and
plaintiff must specify, and court must examine, each defendant’s actions and
contacts with forum); Morris v. Kohls-York, 164 S.W.3d 686, 693 (Tex. App.—
Austin 2005, pet. dism’d) (same).
Even if we were to conclude that Cormier’s jurisdictional evidence applies
equally to both Devon Entities, none of these contacts—even though they can be
considered in some sense continuous and systematic—rise to the relatively high
level of rendering either Devon Entity essentially “at home” in Texas. See Daimler
AG, 571 U.S. at 137–39; Searcy, 496 S.W.3d at 72. Cormier’s own jurisdictional
evidence suggests that the Devon Entities’ interests in Texas account for only 15%
of the companies’ overall production. Harwi testified in his deposition that DEPCO
has “limited Texas operations,” and he stated that the Eagle Ford interest “is one
small piece of our business . . . in context to the rest of the organization.” 3 See
3
In his appellee’s brief, Cormier cites some evidence from DEC’s Form 10-K
annual report. However, it does not appear that this report was presented to the
trial court, and it is not included in the appellate record. We cannot consider
19
Moreno, 2022 WL 547641, at *9–10 (considering Devon Entities’ interest in
approximately 100,000 acres in Eagle Ford as “joint working interest owner” with
BPX and determining that those contacts do not render either Devon Entity
essentially at home in Texas).
We considered substantially similar jurisdictional allegations in Moreno and
found them to be insufficient to establish general jurisdiction:
With respect to Moreno’s argument that the trial court has jurisdiction
because the Devon Entities realize production from their Texas
mineral interest, the jurisdictional evidence presented shows that, in
2019, the Devon Entities, collectively, obtained 15 percent of their oil
production and 7 percent of their oil reserves from their working
interest in the Eagle Ford. This evidence is insufficient to confer
general jurisdiction over the Devon Entities. The evidence reflects
only one year of production. More importantly, the evidence also
shows the converse, namely, that 85 percent of the Devon Entities’ oil
production and 93 percent of their reserves that year were outside of
the State of Texas.
Id. at *11.
We concluded that the presence of an unspecified number of Devon
employees in Texas is insufficient to confer general jurisdiction over the Devon
summary judgment or jurisdictional evidence that was not before the trial court.
See Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961). Likewise, an
appellate court may not consider materials outside the appellate record. See
Mitchell v. Citifinancial Mortg. Co., 192 S.W.3d 882, 883 (Tex. App.––Dallas
2006, no pet.); see also PetroSaudi Oil Servs., Ltd. v. Hartley, 617 S.W.3d 116,
132 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (holding that scope of
appellate review includes all evidence in record). Furthermore, nothing in the
report indicates that either of the Devon Entities was incorporated or
headquartered in Texas, nor does it convey “exceptional” facts that would support
a contention that DEC is essentially at home in Texas. It therefore would not
change our analysis in this case.
20
Entities. Id. We must consider the “type and nature of the office maintained” in
determining whether the ongoing presence of employees or existence of an office
would render a corporation essentially home. Id. (citing Alenia Spazio, S.p.A. v.
Reid, 130 S.W.3d 201, 217 (Tex. App.—Houston [14th Dist.] 2003, pet. denied));
see also BNSF Ry. Co., 581 U.S. at 414 (holding that general-jurisdiction inquiry
“calls for an appraisal of a corporation’s activities in their entirety” because “[a]
corporation that operates in many places can scarcely be deemed at home in all of
them”) (quoting Daimler AG, 571 U.S. at 140 n. 20). Cormier presented no
evidence that the number or type of Devon employees located in Texas would
render either Devon Entity “at home” in Texas. Harwi testified in his deposition
that the Devon Entities employed people in Texas, but he did not know the number
of employees located in Texas, and he stated that the number varies. He further
testified that BPX, and not Devon, was responsible for all of the drilling and
completion operations in the Eagle Ford.
Thus, none of the jurisdictional evidence involving Devon employees or
property indicates that the employees or offices located in Texas rise to the level of
making the Devon Entities at home in Texas. See Daimler AG, 571 U.S. at 133 &
n.11 (noting that defendant’s contacts must be exceptional and “comparable to a
domestic enterprise in that State”); McDaniel v. BP Amoco Expl. (In Amenas) Ltd.,
No. 01-17-00475-CV, 2018 WL 614392, at *2 (Tex. App.—Houston [1st
21
Dist.]Jan. 30, 2018, no pet.) (mem. op.) (“[G]eneral jurisdiction over a corporate
defendant may be had in exceptional cases in which the defendant’s in-state
operations are so substantial that they render it at home there.”); see, e.g., Perkins
v. Benguet Consol. Min. Co., 342 U.S. 437, 447–48 (1952) (wartime relocation of
corporation’s headquarters to state made it at home there).
In Moreno, we likewise rejected the contention that the Devon Entities are
subject to jurisdiction in this state because they have defended against other
litigation in Texas. 2022 WL 547641, at *12. In evaluating a nonresident
defendant’s contacts with this state, we consider “only the defendant’s contacts
with the forum . . . not the unilateral activity of another party or a third person.”
See Bell, 549 S.W.3d at 559. The fact that the Devon Entities have defended
against unrelated litigation in Texas is not sufficient to show that either corporation
purposefully availed itself of this forum. See id. And, as we observed in Moreno,
“any other such litigation against the Devon Entities in Texas could be subject to
jurisdictional factors not present here, such as the existence of specific jurisdiction
or forum selection clauses.” 2022 WL 547641, at *12.
Cormier argues that we should not follow Moreno—which involved, as here,
allegations that the plaintiff was injured on a rig in New Mexico and negligence
claims against the same Devon Entities. Instead, he argues that PetroSaudi Oil
Services controls the resolution of this appeal. We conclude that PetroSaudi is
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distinguishable on the facts. In that case, this Court held that the defendant was
essentially at home in Texas. PetroSaudi Oil Servs., 617 S.W.3d at 140–41.
PetroSaudi was incorporated in the Cayman Islands and listed its principal place of
business in London, where it had one employee. Id. at 140. This Court observed,
however, that the company’s “management team” was located in Houston and that
the activities at the Houston office were extensive and essential to the
corporation’s business, which “was focused on finding opportunities for and
operating the vessel, a drillship.” Id. at 140–41. We concluded:
It is clear from the evidence that the work performed in the Houston
office was integral to the operation of the vessel, the success of which
was the focus of PetroSaudi’s business. The Houston office was not
merely incidental to PetroSaudi’s work but was instead akin to a
“general business office” located in Texas.
Id. at 141. We held that the nature of PetroSaudi’s contacts with Texas “were such
that it was essentially ‘at home’ in Texas.” Id.Here, however, the nature of the contacts between the Devon Entities and
Texas are materially different. The evidence presented by Cormier indicates that
the Devon Entities’ business activities in this state essentially revolve around its
interest in approximately 100,000 acres in Eagle Ford. While this single asset is
significant, there is no evidence that it was the “focus” of the Devon Entities’
business. Cormier’s own evidence indicated that Texas-related production
accounted for only 15% of the Devon Entities’ production. Cormier presented no
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jurisdictional evidence of a Texas-based office or group of employees that could be
considered a “general business office” for either Devon Entity.
As we stated in Moreno, “General jurisdiction must be supported by a
showing that the nonresident defendant’s Texas contacts are exceptional and so
continuous and systematic as to render them essentially at home in Texas.” 2022
WL 547641, at *13 (internal quotations omitted) (quoting Daimler AG, 571 U.S. at133 n.11 (noting that defendant’s contacts must be exceptional and “comparable to
a domestic enterprise in that State”)). “In assessing the quality of the contacts, we
do not view each contact in isolation; rather, we carefully analyze all contacts to
determine if together they are sufficient to support general jurisdiction.” Id. (citing
Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 809 (Tex. 2002);
Reid, 130 S.W.3d at 216).
Here, as in Moreno, the Devon Entities presented jurisdictional evidence
negating that their contacts with Texas render them essentially “at home” in Texas.
See id. Cormier failed to bring forward jurisdictional evidence of contacts that are
exceptional such that they render the Devon Entities “comparable to a domestic
enterprise in [Texas].” See Daimler AG, 571 U.S. at 123–24, 137–139 (concluding
that neither Daimler nor its subsidiary is incorporated in California, nor does either
entity have a principal place of business there, and court could not exercise general
personal jurisdiction over either party, despite extensive contacts in the state,
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including multiple California-based facilities and a regional office; corporation was
“the largest supplier of luxury vehicles to the California market”; and California
sales accounted for 10% of the company’s US sales); see also BNSF Ry. Co., 581
U.S. at 414 (holding that Montana could not exercise general jurisdiction over
BNSF, despite fact railway had over 2,000 miles of railroad track and employed
more than 2,000 workers in Montana).
Accordingly, we conclude that the trial court could not exercise general
jurisdiction over the Devon Entities. We sustain the Devon Entities second issue.
Conclusion
We reverse the ruling of the trial court denying the Devon Entities’ special
appearances. We render judgment dismissing Cormier’s claims against them for
lack of personal jurisdiction.
Richard Hightower
Justice
Panel consists of Justices Goodman, Landau, and Hightower.
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