Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Company and ENI S.P.A.

• Court: Court of Appeals of Texas
• Decided: August 10, 2015
• Docket: 01-13-00349-CV
• Status: Published

Opinion

Opinion issued July 30, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NOS. 01-13-00349-CV & 01-13-00610-CV ——————————— BRENHAM OIL & GAS, INC., Appellant/Cross-Appellee V. TGS-NOPEC GEOPHYSICAL COMPANY, Appellee/Cross-Appellant AND ENI S.p.A., Appellee

On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2011-43156

OPINION

Appellant Brenham Oil & Gas, Inc. filed suit against TGS-NOPEC

Geophysical Company and ENI S.p.A. Brenham Oil had pursued an oil production

agreement with the Republic of Togo, but it alleged those efforts failed due to the tortious interference of TGS, a company that gathers and markets seismic data for

the hydrocarbon industry. ENI, an Italian oil company, was accused of aiding and

encouraging TGS’s tortious conduct.

ENI filed a special appearance and the claims against it were dismissed.

TGS, a Delaware corporation headquartered in Houston, successfully moved to

dismiss based on forum non conveniens. Brenham Oil appealed the dismissal of

both parties. TGS cross-appealed arguing that the trial court also should have

dismissed Brenham Oil’s claims for lack of standing or want of subject matter

jurisdiction over Togolese real property.

We affirm the dispositive orders of the trial court and dismiss the cross-

appeal as moot.

Background

Brenham Oil & Gas, Inc. is a Texas corporation with its headquarters near

Houston. The company, with its highly credentialed leadership and extensive

experience in the oil-and-gas business, sought international oil-and-gas exploration

investment opportunities.

In early 2010, the discovery of a large oil field off the coast of Ghana

prompted Brenham Oil to investigate prospects in the waters of the neighboring

country of Togo. Brenham Oil’s executives, including its President, Scott Gaille,

felt they were in luck: one of them was friends with an old schoolmate of the

2 Togolese president. With the help of this well-placed friend, Brenham Oil arranged

for Gaille to meet in Togo with the nation’s Energy Minister as well as its Director

of Hydrocarbons, Léopold Mebah Siah. The May 2010 meeting included

discussion of the possibility that Brenham Oil would enter into a production-

sharing contract for hydrocarbons located in an area of Togolese waters

denominated “Block 2.” Brenham Oil was instructed that it could obtain seismic

data on Block 2 by contacting TGS-NOPEC Geophysical Company. Togo had

licensed this data to TGS for the purpose of marketing it to exploration companies.

Unbeknownst to Brenham Oil, Siah had written to Roger Welch, TGS’s

manager for Africa, asking for information about Brenham Oil prior to Gaille’s

arrival in Togo. Welch, who lived and worked in London, sent the following email

to Siah from his London office:

I have asked the Houston office to check on Brenham Oil & Gas also. Brenham Oil & Gas is a very small company which has mineral rights on a permit in Texas, they do not operate; the permit is operated by Anadarko. Brenham appears to be a subsidiary of a larger company American International Industries which deals in real estate, plastic products and some well service equipment, they have no experience in either the upstream or downstream oil & gas industry. None of the management team have any experience in the oil & gas industry. We do not recommend that Brenham be considered for any petroleum exploration permit in Togo. ...

3 As I mentioned TGS is interpreting all of the data we have acquired offshore Togo and integrating this with our regional data base off Ghana and Benin. Within a month we will have a report showing prospects offshore Togo showing their similarities with the Jubilee field offshore Ghana. TGS is constantly talking with the serious oil companies exploring the Ghana, Togo & Benin margin, we will be showing the report to these companies and more. At present the companies looking to make large investments in this margin are Chevron, Total, ENI Repsol-YPF, StatOilHydro etc. Let’s do a promotion to these types of companies.

After the meeting with Gaille, Siah wrote an email back to Welch:

It was a good meeting with M. Gaille from Brenham Oil & Gas company. We also the minister an[d] I noted that it si [sic] very small unexperienced company. We gave them copies of model PSA and hydrocarbon code. Also we told them to make contact with PGS [sic] for further information in terms of data evaluation and data licencing. Please can you brief us on data package price, licencing procedure and details of volume of data to be shown and licenerd [sic]. Thank you for your precious cooperation on this matter.

Behind the scenes at TGS, the news that Brenham Oil was talking to Togo about

Block 2 was not welcome. Welch was part of TGS’s Africa, Middle East, and Asia

Pacific (“AMEAP”) team and subordinate to David Hicks, the divisional vice

president. Prior to answering Siah’s inquiry about Brenham Oil, Welch had

emailed Hicks and fellow AMEAP team member Kim Abdallah, both of whom

worked in Houston. Welch wrote, “Do you know anything about Brenham Oil &

Gas . . . . They are meeting with minister tomorrow to try and get block 2. If it is a

4 small co. they will not buy data and try to promote block—not good for us or

Togo.”

Brenham Oil dispatched its vice president, L. Rogers Hardy, to examine the

data located at TGS’s Houston headquarters. Hardy contacted Hicks, visited TGS’s

Houston office, and entered into a confidentiality agreement to view the

information. When Hicks reported that the “guy from Brenham” had come by

inquiring about the data, Welch emailed back, “I’ve already told Togo not to deal

with them.”

On May 17, Brenham Oil learned of the negative evaluation Welch had

given to Siah. Gaille responded by emailing Welch, attaching a short biography to

show his competence. Gaille wrote:

I wanted to provide you with information regarding my background. Of course, you have not heard of Brenham Oil & Gas. Brenham Oil & Gas is a new vehicle that I am using to place capital in international exploration opportunities, and I am working with my network of contacts at the large oil and gas companies and governments to acquire exploration block interests. We expect to build a portfolio of approximately 10 wells over the next three years. Our goal is exposure of public and private capital to a series of high potential wells. . . .

We would very much appreciate you and your team’s support in our efforts in Togo and elsewhere, and we understand it is important that you have an accurate understanding of our background and experience. If you need a reference or have any further questions, please do not hesitate to contact me.

Four days later, Abdallah sent an email to two Houston-based TGS colleagues:

AMEAP team member Juan Santana and sales representative Julie Halbison.

5 Abdallah instructed them how to price the data for Brenham Oil, writing, “make it

high.”

Welch later echoed that sentiment. In an email exchange, TGS employee Jim

McNeil told Welch that he could provide Hardy “a list of the wells we have when

necessary” and asked him to “please let me know if you want me to do anything at

this time.” Welch replied, “I’ll wait until he absorbs the price,” noting that

Brenham Oil would likely complain about it to the government. In response to a

query a few days later from Halbison about pricing the data for Brenham Oil,

Welch wrote, “I don’t think that this is going anywhere, Brenham will not be

prepared to pay anything significant to get the block. If we get a serious company I

will let you guys do the pricing.”

On May 24, Brenham Oil presented Togo a proposed production-sharing

agreement. In June, Gaille traveled to Togo once more and held a series of

meetings with officials to work out the terms of the agreement. Yair Green, an

Israeli lawyer, participated on the side of the Togolese government. By July,

Brenham Oil thought that it had settled on an agreement with Togo: its Board had

approved the prospective agreement, and emails were exchanged about scheduling

a signing ceremony in Paris. However, the parties never met in Paris and no

agreement was signed. As the months went by, Gaille continued to press Green

about signing the agreement. In October, Brenham Oil learned through news

6 reports that Togo had entered an agreement to develop Block 2 with ENI S.p.A.,

the Italian oil company that ultimately would drill in Block 2.

ENI’s investigation of exploration opportunities near Togo and negotiations

for the purchase of seismic data had been underway since before Brenham Oil’s

initial May 2010 meeting there. As early as January 2010, TGS’s AMEAP

employee Sara Stephens, based in London, was communicating by email with

Illiberi Leonardo, an ENI employee in Milan, promoting the sale of TGS’s data to

ENI. By March, Stephens was working with AMEAP employee Juan Santana,

based in Houston, and TGS sales coordinator Jana Spencer, also in Houston, on

finalizing a licensing agreement. In April, Stephens, who continued to

communicate with Leonardo and ENI on behalf of TGS, was complaining of ENI’s

delay in consummating the sale. The delays were troubling to Santana and the

other TGS team members.

At the end of May, Santana emphasized to his colleagues the importance of

concluding the sale with ENI. In a series of emails, he wrote, “We need ENI bad!”

and “FYI, WE NEED ENI . . . to reach forecast. Take no prisoners. . . . show me

the money!” Nonetheless, it was only in November 2010, after ENI had entered

into a production agreement with Togo, that the sale of seismic data was

completed.

7 Brenham Oil initially filed suit against TGS and an American ENI

subsidiary, ENI Petroleum Co. Inc. However, Brenham Oil later nonsuited the

subsidiary and amended its pleadings to sue the parent, ENI, S.p.A., directly.

Brenham Oil alleged that TGS had tortiously interfered with its prospective

business relations with Togo “by making false, negligent, intentional, fraudulent,

and/or defamatory statements to Togolese officials.” Brenham Oil relied especially

upon the email Welch sent to Siah calling Brenham Oil “a very small company”

and recommending that it not be considered for a petroleum exploration permit.

Brenham Oil further alleged that ENI knowingly assisted or encouraged TGS’s

tortious acts.

ENI filed a special appearance arguing that the court lacked jurisdiction over

it. The trial court granted the special appearance and dismissed the claims against

ENI. Brenham Oil promptly filed notice of an accelerated appeal.

Litigation continued in the trial court between Brenham Oil and TGS, which

filed several dispositive motions: a motion to dismiss based on forum non

conveniens; a motion to dismiss for lack of subject-matter jurisdiction; a motion

for summary judgment alleging lack of standing and inability to prove damages;

and a “Final Motion for Summary Judgment,” tackling the merits of Brenham Oil’s

tortious interference claim. In its motion to dismiss for forum non conveniens,

TGS claimed that the case should be litigated in Togo, not Harris County. After

8 holding multiple hearings, entertaining extensive briefing, and receiving evidence,

the trial court ultimately granted the forum non conveniens motion and dismissed

the case without ruling on TGS’s other dispositive motions. Brenham Oil timely

filed notice of appeal. TGS then filed a cross-appeal.

Analysis

I. ENI’s special appearance

Brenham Oil argues that the trial court erred by granting ENI’s special

appearance. It contends that the trial court had both general and specific

jurisdiction over ENI.

A. Brenham Oil’s motion to strike affidavit

As a preliminary matter, Brenham Oil argues that the trial court erred by

denying its motion to strike an affidavit ENI offered in support of its special

appearance. ENI employee Marco Bollini’s detailed affidavit, dated May 24, 2012,

was phrased in the present tense but noted that its statements were “true and

correct now and for all applicable time frames involving the plaintiff’s allegations

in this case.” It contained a litany of specific denials supporting his employer’s

assertion that while it has numerous American subsidiaries that do business in

Texas, ENI itself has no presence in Texas. For example, Bollini denied that ENI

“sell[s] goods or provide[s] any services in Texas,” and he asserted that ENI “does

not and has never maintained an office or any other facility in Texas.”

9 Brenham Oil presents two reasons why the affidavit should have been

struck. Both relate to paragraph 18, which stated:

A small number of ENI S.P.A. employees may be assigned to ENI S.P.A. subsidiaries in the United States on a temporary basis. During the term of a temporary assignment, an assigned employee enters into an employment agreement with the U.S. subsidiary that has the right to direct and control the details of the employee’s work. ENI S.p.A. relinquishes the right to direct and control the details of any assigned employee’s work. Accordingly, the subsidiary to which an employee is assigned pays all compensation during his or her term of assignment.

Brenham Oil contends that the entire affidavit should be struck because it is

materially false. In the alternative, it argues that the challenged paragraph should

be struck as conclusory.

We review a trial court’s ruling on a motion to strike an affidavit or portion

thereof for abuse of discretion. In re BP Prods. N. Am., Inc., 263 S.W.3d 106, 117

(Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). A trial court may

determine a special appearance on the basis of affidavits. See TEX. R. CIV.

P. 120a(3). The affidavits, however, must “be made on personal knowledge” and

“set forth specific facts as would be admissible in evidence.” Id. Consequently, the

affidavits used must be direct, unmistakable, and unequivocal as to the sworn facts,

allowing perjury to be assigned on them. Wright v. Sage Eng’g Inc., 137 S.W.3d

238, 250 n.8 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

10 Brenham Oil argues that paragraph 18 is materially false because it partly

contradicts numerous letters of invitation sent by ENI US Operating Co. Inc. to the

United States Consulate in Milan regarding working visits to the United States by

ENI S.p.A. employees. For example, a letter submitted on June 25, 2009 by ENI

US Operating Co. on behalf of Chiara Guiducci, said:

This is to explain the business visit to the United States by Ms. Chiara Guiducci. She is currently employed by ENI S.p.A. in San Donato, Italy in the position of Lead Reservoir Engineer for ENI S.p.A. Exploration and Production.

. . . . ENI US Operating Co. Inc. would like to invite Ms. Chiara Guiducci to attend meetings on behalf of and as an employee of ENI S.p.A. She will be visiting and attending meetings relating to the Kashagan Field Development project.

Ms. Chiara Guiducci will continue to be an employee of ENI S.p.A. and will remain on its payroll throughout her staying the United States. She will receive no remuneration in the United States.

Other letters, dated as early as January 2008 and as late as July 2010, use similar

language. Brenham Oil points out that the claims in the letters that an employee

“will continue to be an employee of ENI S.p.A. and will remain on its payroll”

contradict the statements in Bollini’s affidavit that “an assigned employee enters

into an employment agreement with the U.S. subsidiary that has the right to direct

and control the details of the employee’s work,” that ENI S.p.A. “relinquishes the

right to direct and control the details of any assigned employee’s work,” and that

11 “the subsidiary to which an employee is assigned pays all compensation during his

or her term of assignment.”

Despite the difference between the affidavit submitted by ENI and the

documentation noted by Brenham Oil, the comparison does not conclusively

establish that the statements in Bollini’s affidavit are false. ENI correctly notes

that, while the invitation letters identified by Brenham Oil indicate that ENI

employees who visited Texas would remain on ENI’s payroll, the letters were each

written in the future tense to describe proposed visits. As such, the letters were not

direct evidence of the eventual employment arrangement for the visiting

employees. Perhaps more compellingly, Bollini’s affidavit statement that the U.S.

subsidiary “pays all compensation” during a temporary assignment is not

inherently at odds with that employee remaining on the parent’s “payroll” during

that time. Both statements could be true if the subsidiary reimbursed the parent for

the costs of the employee’s compensation during the temporary assignment. See,

e.g., PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 176 (Tex.

2007) (discussing parent–subsidiary arrangement in which subsidiary’s executives

received paychecks from parent, but funds for paychecks came from subsidiary’s

revenues).

In any case, Brenham Oil also offers no authority for the proposition that

statements in an affidavit should be struck for the reason that they that conflict

12 with other statements by the same party or its subsidiary on the same subject

matter. The fact that an affidavit submitted by a corporate party contradicts another

piece of evidence in the record, even if the other evidence is a statement of the

party’s subsidiary, does not conclusively establish that the affidavit is false or

perjurious. Cf. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988)

(per curiam) (“[I]f conflicting inferences may be drawn from a deposition and from

an affidavit filed by the same party in opposition to a motion for summary

judgment, a fact issue is presented.”). Such a conflict in the evidence merely

presents the trial court with a fact issue, see id., to be resolved with the merits of

the special appearance.

Brenham Oil argues in the alternative that the affidavit should have been

struck because paragraph 18 is conclusory. Specifically, it contends that the

assertion, “ENI S.p.A. relinquishes the right to direct and control the details of any

assigned employee’s work,” is conclusory because it is unaccompanied by

statements of relevant underlying facts. It relies on a prior decision, Golden Agri–

Resources Ltd. v. Fulcrum Energy LLC, No. 01–11–00922–CV, 2012 WL 3776974

(Tex. App.—Houston [1st Dist.] Aug. 30, 2012, pet. denied) (mem. op.), in which

this court held that the trial court did not abuse its discretion in striking certain

statements in an affidavit supporting a special appearance as conclusory. 2012 WL

3776974 at *11.

13 We disagree because Golden Agri-Resources is distinguishable. Unlike the

affidavit in that case, the challenged statement in Bollini’s affidavit was supported

by additional factual statements regarding the nature of the control purportedly

exerted by the other entities. The Bollini affidavit affirmed that “an assigned

employee enters into an employment agreement with the U.S. subsidiary” and that

“the subsidiary to which an employee is assigned pays all compensation during his

or her term of assignment.” Both claims, that an agreement existed between the

assigned employee and the subsidiary and that the subsidiary paid the employee’s

wages, are “direct, unmistakable, and unequivocal as to the sworn facts, allowing

perjury to be assigned on them.” See Wright, 137 S.W.3d at 250 n.8. Indeed,

Brenham Oil’s first argument, that the statements in the affidavit are perjurious

because they contradict the statements contained in the letters from the subsidiary

to the American consulate, illustrates the manner in which allegations of perjury

may be leveled against claims that an employment agreement existed or that wages

were paid by a particular entity.

We further note the difference in the procedural postures of this appeal and

Golden Agri-Resources. As noted above, a trial court’s ruling on a motion to strike

a portion of an affidavit is reviewed for abuse of discretion. In re BP Prods., 263

S.W.3d at 117. In Golden Agri-Resources, we affirmed a ruling striking an

affidavit, finding that ruling to have been within the trial court’s discretion. See

14 Golden Agri-Resources, 2012 WL 3776974 at *11. Likewise, we find no abuse of

discretion here: the trial court did not abuse its discretion in denying Brenham

Oil’s motion to strike.

B. Personal jurisdiction

Brenham Oil argues that even if the trial court did not abuse its discretion in

refusing to strike Bollini’s affidavit, the record before the trial court establishes

that the court had both general and specific jurisdiction over ENI. Since questions

of general and specific jurisdiction present different inquiries, we will address both

arguments in turn.

Texas courts may assert personal jurisdiction over a nonresident defendant if

the long-arm statute authorizes it and the exercise is consistent with due process.

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). Given

the broad scope of the Texas long-arm statute, an assertion of jurisdiction that

comports with guaranties of due process under the standard of the federal

constitution will invariably fall within the statute’s ambit. Am. Type Culture

Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).

The touchstone of jurisdictional due process is “purposeful availment.”

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005).

Before a court may exercise jurisdiction over a nonresident defendant, there must

be “some act by which the defendant purposefully avails itself of the privilege of

15 conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228,

1240 (1958).

The Supreme Court of Texas has identified three significant aspects of

purposeful availment. Michiana, 168 S.W.3d at 785. “First, it is only the

defendant’s contacts with the forum that count[.]” Id. A defendant should not be

called to court in a jurisdiction solely as a result of the unilateral activity of another

party or third person. Id. “Second, the acts relied on must be ‘purposeful’ rather

than fortuitous.” Id. “Sellers who ‘reach out beyond one state and create continuing

relationships and obligations with citizens of another state’ are subject to the

jurisdiction of the latter in suits based on their activities.” Id. (quoting Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S. Ct. 2174, 2182 (1985)). “A

defendant will not be hailed into a jurisdiction solely based on contacts that are

‘random, isolated, or fortuitous.’” Id. (quoting Keeton v. Hustler Magazine, Inc.,

465 U.S. 770, 774, 104 S. Ct. 1473, 1478 (1984)). “Third, a defendant must seek

some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.” Id.

“Jurisdiction is premised on notions of implied consent—that by invoking the

benefits and protections of a forum’s laws, a nonresident consents to suit there.” Id.

“By contrast, a nonresident may purposefully avoid a particular jurisdiction by

16 structuring its transactions so as neither to profit from the forum’s laws nor be

subject to its jurisdiction.” Id.

Depending on their character and extent, a defendant’s contacts can vest a

court with either specific or general jurisdiction. Coleman, 83 S.W.3d at 806. In

order for a court to exercise specific jurisdiction, the defendant’s forum contacts

must be purposeful and the cause of action must arise from or relate to those

contacts. Id. In contrast, general jurisdiction allows a defendant to be pulled into

court even if the cause of action did not arise from or relate to a defendant’s

contacts with the forum. “General jurisdiction is present when a defendant’s

contacts with a forum are ‘continuous and systematic,’ a more demanding

minimum-contacts analysis than specific jurisdiction.” Id. In either case, the

defendant’s forum contacts must be such that it should “reasonably anticipate”

being called into a Texas court. World–Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 297, 100 S. Ct. 559, 567 (1980).

Besides requiring that defendants have the necessary “minimum contacts”

with a forum, due process also requires that the exercise of jurisdiction over the

person of the defendant comport with “traditional notions of fair play and

substantial justice.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (citing Int’l

Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945)). If a

defendant contends that being forced to defend a suit in the foreign forum offends

17 these notions, it is incumbent on it to present “a compelling case that the presence

of some consideration would render jurisdiction unreasonable.” Burger King, 471

U.S. at 477, 105 S. Ct. at 2185. “Only in rare cases, however, will the exercise of

jurisdiction not comport with fair play and substantial justice when the nonresident

defendant has purposefully established minimum contacts with the forum state.”

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d

223, 231 (Tex. 1991).

Whether a court has jurisdiction over a defendant is a question of law, but

one that frequently requires a trial court to resolve questions of fact before making

its determination. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794

(Tex. 2002). In this case, the trial court did not enter findings of fact and

conclusions of law in relation to its ruling on ENI’s special appearance.

Consequently, all facts necessary to support the ruling and supported by the

evidence are implied. Id. at 795. Legal questions, on the other hand, are considered

de novo. See id.

The Supreme Court of Texas has provided guidance on how to allocate the

burden of proof in a special appearance dispute. See Kelly v. Gen. Interior Constr.,

Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). The plaintiff bears the initial burden to

plead sufficient allegations to bring the nonresident defendant within the reach of

Texas’s long-arm statute. Id. at 658. ENI does not contest that Brenham Oil carried

18 this initial burden. “Once the plaintiff has pleaded sufficient jurisdictional

allegations, the defendant filing a special appearance bears the burden to negate all

bases of personal jurisdiction alleged by the plaintiff.” Id. “Because the plaintiff

defines the scope and nature of the lawsuit, the defendant’s corresponding burden

to negate jurisdiction is tied to the allegations in the plaintiff’s pleading.” Id.

“The defendant can negate jurisdiction on either a factual or legal basis.” Id.

at 659. “Factually, the defendant can present evidence that it has no contacts with

Texas, effectively disproving the plaintiff’s allegations.” Id. “The plaintiff can then

respond with its own evidence that affirms its allegations, and it risks dismissal of

its lawsuit if it cannot present the trial court with evidence establishing personal

jurisdiction.” Id. (footnote omitted). Alternatively, the defendant can make a legal

argument. It can show that “even if the plaintiff’s alleged facts are true, the

evidence is legally insufficient to establish jurisdiction; the defendant’s contacts

with Texas fall short of purposeful availment; for specific jurisdiction, that the

claims do not arise from the contacts; or that traditional notions of fair play and

substantial justice are offended by the exercise of jurisdiction.” Id.

1. General jurisdiction

“A court may assert general jurisdiction over foreign (sister-state or foreign-

country) corporations to hear any and all claims against them when their

affiliations with the State are so ‘continuous and systematic’ as to render them

19 essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v.

Brown, 131 S. Ct. 2846, 2851 (2011); see also Daimler AG v. Bauman, 134 S. Ct.

746, 761 (2014). General jurisdiction is thus described as “dispute-blind.” PHC-

Minden, 235 S.W.3d at 168. “It involves a court’s ability to exercise jurisdiction

over a nonresident defendant based on any claim, including claims unrelated to the

defendant’s contacts with the state.” Id. (citation omitted) “Usually, ‘the defendant

must be engaged in longstanding business in the forum state, such as marketing or

shipping products, or performing services or maintaining one or more offices there;

activities that are less extensive than that will not qualify for general in personam

jurisdiction.’” Id. (quoting 4 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE

§ 1067.5 (2007)). As such, a general jurisdiction inquiry involves a “more

demanding minimum contacts analysis, with a substantially higher threshold” than

a specific jurisdiction inquiry. Id. In conducting the contacts analysis, “we do not

view each contact in isolation.” Coleman, 83 S.W.3d at 809. “All contacts must be

carefully investigated, compiled, sorted, and analyzed for proof of a pattern of

continuous and systematic activity.” Id.

To begin, we note that the affidavit of Marco Bollini, with which ENI

supported its special appearance, contained a laundry list of denials. Bollini denied,

among other things, that ENI:

 is registered to do business in Texas;

20  maintains an agent who is authorized to receive service of process;  conducts “any operations in Texas”;  sells goods or provides services in Texas;  directs advertising toward Texas residents;  pays any employees “that reside in Texas”;  has any employees in Texas over which it maintains the right to direct or control the details of their work;  maintains an office or any other facility in Texas  owns or leases any real or personal property in Texas; or,  has a telephone listing, post office box, or mailing address in Texas. Bollini acknowledged, however, that ENI has several direct or indirect American

subsidiaries that maintain offices or have their headquarters in Texas. At the same

time, he averred that ENI: “does not direct or control the day-to-day operations of

any of these subsidiaries or their employees;” that it maintains separate bank

accounts, accounting systems, and payroll systems; and that its subsidiaries do not

commingle corporate assets.

In support of its contention that ENI is subject to general jurisdiction in

Texas, Brenham Oil notes evidence of a trip by ENI executives to an industry

conference in Houston where they met with representatives of several oil

companies, as well as two trips by ENI’s CEO to Texas for business meetings and

speaking engagements. Brenham further observes that on 39 occasions between

2009 and 2012, other ENI employees visited Texas on business trips for the

21 company, as evidenced by numerous letters of invitation from Texas subsidiary

ENI US Operating Co. to the American consulate in Milan. The stated purpose of

these visits generally was to work with or advise ENI’s Texas subsidiaries. Finally,

Brenham points to evidence that ENI assumed an active role in negotiating a lease

of Houston office space on behalf of ENI US Operating Co. ENI employees

traveled to Houston to survey the property and offer support in making the new

offices match the “ENI standard.” ENI also required its subsidiary to submit a cost

estimate.

Although Brenham Oil emphasizes these ENI activities on behalf of its

subsidiaries as a basis for jurisdiction, it does not deny that the subsidiaries are

separate corporate entities or contend that the subsidiaries are merely ENI’s “alter

egos.” See Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 118 (Tex.

App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (plaintiffs did not argue alter

ego theory, under which subsidiaries’ contacts are attributable to parent, on

appeal).

The number of visits by ENI executives to Texas to attend industry

conferences and meet with other oil companies matters little in determining

whether ENI was essentially at home in Texas. See Helicopteros Nacionales de

Colom., S.A. v. Hall, 466 U.S. 408, 416–18, 104 S. Ct. 1868, 1873–74 (1984)

(explaining that single trip by CEO to Houston for purpose of negotiating contract

22 “cannot be described or regarded as a contact of a ‘continuous and systematic’

nature”). “Occasional travel to Texas is insufficient by itself to establish

continuous and systematic contact with the state.” Waterman S.S. Corp. v. Ruiz,

355 S.W.3d 387, 410 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). In

Helicopteros, a history of more numerous and systematic visits was deemed

inadequate to uphold a Texas court’s assertion of general jurisdiction. There, the

United States Supreme Court found that a Colombian helicopter operator which

dispatched managers and technicians to view the Texas plants of its helicopter

manufacturer and regularly sent its pilots to the state for training was not subject to

general jurisdiction in Texas. Helicopteros, 466 U.S. at 418, 104 S. Ct. at 1874. As

the Colombian company had no other operations in the state, see id. at 411, 104 S.

Ct. at 1870–71, these visits by its employees were inadequate to vest Texas courts

with general jurisdiction. Id. at 418, 104 S. Ct. 1874.

Nevertheless, Brenham Oil contends that the visits by ENI employees to its

Texas subsidiaries are contacts that establish general jurisdiction. Brenham Oil

insists that the invitation letters to the consulate written by ENI US Operating Co.

Inc. state the truth about the ENI employees who visited Texas. It maintains that

these letters establish that the employees remained on the payroll and under the

control of ENI, thus defeating ENI’s secondment theory. Accordingly, Brenham

Oil relies on several cases affirming general jurisdiction over parent companies

23 that paid and controlled employees in Texas. However, Bollini’s affidavit

established that ENI employees entered into employment agreements with ENI

subsidiaries, which paid all compensation for the employees. He further averred

that ENI S.p.A. relinquished the right to direct and control the details of those

employees’ work. “Whether an employee is seconded to a borrowing employer is a

question of law that depends upon factual determinations of whether the borrowing

employer has the right to direct and control the borrowed employee with respect to

the details of the particular work.” Golden Agri-Resources, 2012 WL 3776974 at

*11 (citing St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2003)). Under

Texas law, seconded employees are considered employees of the borrowing

employer. Deloitte & Touche Neth. Antilles & Aruba v. Ulrich, 172 S.W.3d 255,

265–66 (Tex. App.—Beaumont 2005, pet. denied). Here, Bollini’s affidavit

supports a factual determination that the ENI subsidiaries had the right to direct

and control the work of the borrowed employees. BMC Software, 83 S.W.3d at

795. Accordingly, the record supported a legal determination that the visiting

employees became the employees, though borrowed, of the subsidiaries, and did

not give rise to contacts with Texas. See Deloitte & Touche, 172 S.W.3d at 265–

66.

Brenham Oil relies further on Villagomez v. Rockwood Specialties, Inc., 210

S.W.3d 720 (Tex. App.—Corpus Christi 2006, pet. denied), for the proposition

24 that, apart from an alter ego theory under which a subsidiary is fused with its

parent for purposes of contacts analysis, a parent’s ownership of a subsidiary and

its activities directed at that subsidiary in the forum state are themselves contacts

that may establish general jurisdiction. Brenham Oil thus contends that ENI’s

practice of dispatching its employees from Italy to Texas to advise its Texas

subsidiaries, as well as negotiating a lease of Texas real estate on a subsidiary’s

behalf, are forum contacts that subject ENI to general jurisdiction in this state.

Furthermore, Brenham Oil argues that the visits by ENI employees to Texas to

work with ENI subsidiaries demonstrate that “ENI continuously and systematically

sent its employees to Texas for various length of time.”

A parent corporation’s ordinary, “normal,” or “routine” interactions with its

subsidiaries, outside an alter ego theory, do not alone suffice to subject the parent

to jurisdiction in the state of the subsidiary. Preussag, 16 S.W.3d at 118–120, 123.

In Preussag, the plaintiffs contended that a German holding company was subject

to jurisdiction based on its system of ordering and facilitating the operations of its

subsidiaries in Texas, which the court characterized as its “normal, corporate

actions within the Preussag group system.” Id. at 118. These actions were

“occasional audits; unified financial procedures for the annual reporting required

by German law; a unified ‘banking’ system, involving loans and intercompany

payments and requiring some deposits into the subsidiaries’ Texas bank accounts;

25 parent approval of large expenditures and budgets; consideration of adopting a

group benefits system; and the communications and visits that accompany these

activities.” Id. at 118–19. Absent any alter ego theory, which the appellees had

specifically disavowed, this court concluded that Preussag was not subject to

jurisdiction in Texas on the basis of its routine interactions with its subsidiary. Id.

at 123–25.

Here, the undisputed evidence shows that over a period of more than three

years, from October 2008 to March 2012, ENI employees took 39 trips to Texas

for various purposes. For example, employees traveled to Texas for a “meeting to

review regional operations of Eni Subsidiaries,” to provide “consulting services to

ENI U.S. entities” in support of business negotiations, to “conduct training and

technology support,” and to “review U.S. market and operations.” Furthermore,

implying a finding of all facts necessary to support the trial court’s ruling that are

supported by the evidence, BMC Software, 83 S.W.3d at 795, the evidence before

the trial court supported the conclusion that ENI had some involvement with a

lease of real property in Texas by one of its subsidiaries, but ENI’s direct

participation was limited to approving expenditures and ensuring that building

security guidelines were met.

This evidence does not demonstrate that these activities relating to the

support and oversight of ENI’s Texas subsidiaries exceeded the “normal parent–

26 subsidiary relationship.” Id. at 125. In Preussag, the trial court deemed a visit to

inspect and other monitoring activities—such as periodic audits and approving

large expenditures—a component of normal parent–subsidiary relations which

would not subject the parent to general jurisdiction in Texas. Id. at 124–25. ENI’s

actions regarding its subsidiary’s leased office property are no different.

Furthermore, although the descriptions contained in Bollini’s declaration, for

example, “consulting services,” are vague, the evidence does not demonstrate that

these activities went beyond ordinary parent–subsidiary dealings. Accordingly,

these visits were not shown to be continuous and systematic contacts with Texas.

See id.

Importantly, in Villagomez, the court did not hold that ownership of a

subsidiary alone is sufficient to subject the parent corporation to general

jurisdiction. See Villagomez, 210 S.W.3d at 732 (explaining that while “ownership

of a local-operating subsidiary may not be enough for minimum contacts outside

the context of alter ego or similar conceptual devices, it is nonetheless error to

exclude this legitimate forum contact from consideration in toto with the

defendant’s other forum contacts”). On the contrary, the court considered the

particular dealings of the parent with its subsidiary in order to arrive at its

minimum-contacts findings. See id. at 734–40. Significantly, the parent corporation

27 in Villagomez had directly contracted to engage a president for its Texas

subsidiary. The contract said:

We are pleased to confirm our offer of employment as President and Managing Director of our Clay Additives business on a full-time and exclusive basis. For purposes of facilitating your employment, you will be assigned to and employed by our subsidiary . . . . It is our understanding that you will commence employment on or before August 20, 2001. You will have direct reporting responsibility to the President of Rockwood Specialties, Inc. (hereinafter “Rockwood”). We reserve the right, at our discretion, to change your responsibilities or job title at any time.

Id. at 734. Although the person hired to serve as president considered the

subsidiary his employer, the court found it clear, “both in practice and by written

agreement,” that he was “directly accountable” to the parent. Id. at 742. As the

court explained, the parent had contracted directly with the president to make him

“ultimately accountable for the profitability of [the subsidiary’s] business in Texas

. . . .” Id. In doing so, the parent “extended directly into Texas its business of

owning other businesses and directly facilitating their profitability.” Id. Rather than

have the president contract with the subsidiary, the parent company “chose to enter

Texas to contract and interact” with the president “directly in its corporate capacity

as [the parent], not from behind the veil of [the subsidiary’s] board of directors.”

Id.

In sum, the general jurisdiction finding in Villagomez rested in large part on

the parent’s decision to contract directly with the person it wanted at the helm of its

28 Texas subsidiary, to require that person to report directly to the parent’s president,

and to retain for itself the right to remove him from that position. See id. The facts

in this case are easily distinguishable from those in Villagomez. Here, ENI

submitted evidence in the form of Bollini’s affidavit that supports an implied

finding that ENI did not retain the right of control over any employee working for

its US subsidiaries. See BMC Software, 83 S.W.3d at 795. Accordingly, we do not

view ENI’s actions directed toward its subsidiaries as sufficient minimum contacts

to subject ENI to general jurisdiction. See Preussag, 16 S.W.3d at 124–25.

Finally, Brenham Oil attempts to distinguish Helicopteros on the basis that

the nature of ENI’s contacts with Texas support general jurisdiction because those

contacts were “central” to ENI’s business. To support its argument, Brenham Oil

points to two cases involving bank defendants that maintained no offices or

employees in the forum, but nevertheless made loans to residents in the forum. See

Lakin v. Prudential Secs., Inc., 348 F.3d 704, 708–10 (8th Cir. 2003); Provident

Nat’l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434 (3d Cir. 1987); see also

RSR Corp. v. Siegmund, 309 S.W.3d 686, 708 (Tex. App.—Dallas 2010, no pet.).

Although the bank defendants argued that the loans were insufficient to establish

general jurisdiction because the total loan amounts represented a small fraction of

their total loan portfolios, the courts deemed general jurisdiction appropriate,

noting that the lines of credit at issue were “central to the conduct of the [banks’]

29 business.” Lakin, 348 F.3d at 709; Provident Nat’l Bank, 918 F.2d at 438. Thus,

Brenham Oil reasons, general jurisdiction is appropriate here because visits to

Texas by ENI employees are “central” to ENI’s business. Brenham Oil does not

argue how the visits of ENI S.p.A.’s employees to Texas are “central” to its

business, other than by stating that the visits constitute contacts closer to those of

the bank defendants in Lakin and Provident Nat’l Bank than those of the defendant

in Helicopteros.

As we concluded above, the record supports a determination that the 39

visits by ENI employees described in Bollini’s supplemental declaration do not

exceed the scope of the normal parent–subsidiary relationship. See Preussag, 16

S.W.3d at 124–25. The record similarly supports a determination that those visits

were not “central” to ENI’s business in the same way that making loans is central

to the business of a bank. Cf. Lakin, 348 F.3d at 709–10. Moreover, the Lakin and

Provident Nat’l Bank courts did not confine their analysis to whether the

defendants’ contacts with the forum were “central” to their business. Rather, those

courts properly focused on whether the banking activity with the forum was

“continuous and systematic,” Lakin, 348 F.3d at 709, observing that the banks’

actions constituted “substantial, ongoing, and systematic activity” in the forum.

Provident Nat’l Bank, 819 F.2d at 438. By contrast, Bollini’s supplemental

declaration indicated ENI employees took only 39 visits to Texas between 2008

30 and 2012. Such visits are a far cry from the “continuous and systematic” contacts

of the bank defendants in Lakin and Provident Nat’l Bank. See Lakin, 348 F.3d at

709 (determining that bank defendant made loans that “can represent the

establishment of lending relationships with hundreds, if not thousands of [the

forum’s] residents”); Provident Nat’l Bank, 819 F.2d at 438 (observing that bank

defendant “conducted business regarding [the] account with [a bank in the forum]

every business day”). Thus, unlike the bank accounts held and accessed

continuously in a forum state, the periodic visits of ENI employees to Texas

“cannot be described or regarded as a contact of a ‘continuous and systematic’

nature.” Helicopteros, 466 U.S. at 416, 104 S. Ct. at 1873.

In sum, the record supports implied findings necessary to uphold the legal

determinations that ENI does not operate in Texas, and that its activities on behalf

of Texas subsidiaries were confined to normal parent–subsidiary relations. See

BMC Software, 83 S.W.3d at 795; Preussag, 16 S.W.3d at 126. Viewing all of the

contacts together, Am. Type Culture Collection, 83 S.W.3d at 809, we hold that

ENI’s contacts with Texas were not shown to be sufficiently continuous and

systematic as to render it “essentially at home” in Texas. See Goodyear, 1315 S.

Ct. at 2851. Therefore, Brenham Oil failed to demonstrate that ENI is subject to

general jurisdiction in Texas.

31 2. Specific jurisdiction

While general jurisdiction is dispute-blind, specific jurisdiction takes into

account the relationship among the defendant, the forum, and the litigation. Moki

Mac, 221 S.W.3d at 575–76. Specific jurisdiction “arises when (1) the defendant

purposefully avails itself of conducting activities in the forum state, and (2) the

cause of action arises from or is related to those contacts or activities.” Kelly, 301

S.W.3d at 658. “[F]or a nonresident defendant’s forum contacts to support an

exercise of specific jurisdiction, there must be a substantial connection between

those contacts and the operative facts of the litigation.” Moki Mac, 221 S.W.3d at

585.

Brenham Oil’s petition named one cause of action against ENI: aiding and

abetting the torts of TGS. However, these allegations were not tied to factual

assertions. The only references to ENI in the fact section of Brenham Oil’s petition

concern non-tortious conduct. For example, Brenham Oil alleged that ENI was

negotiating a sale of seismic data with TGS, it ultimately was awarded the right to

drill in Block 2 from Togo, it concluded the purchase of seismic data from TGS

only after obtaining rights in Block 2, and it is presently drilling off the Togolese

coast.

The petition also alleged that at “all times material to this lawsuit, Eni S.p.A.

was doing business in Houston, Harris County, Texas.” This was sufficient to carry

32 Brenham Oil’s initial burden of pleading jurisdictional facts. See George v.

Deardorff, 360 S.W.3d 683, 687 (Tex. App.—Fort Worth 2012, no pet.); Huynh v.

Nguyen, 180 S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Because Brenham Oil alleged sufficient jurisdictional facts in its petition, the

burden shifted to ENI to negate all bases of jurisdiction alleged. See Kelly, 301

S.W.3d at 658. Launching a factual challenge to the jurisdictional allegations, ENI

attached the Bollini affidavit to its special appearance. The affidavit, by way of

numerous negations, effectively denied that ENI does business in Texas. For

example, it affirmed that it does not have a mailing address or office in the state,

does not sell goods or services in Texas, and does not direct advertising towards

Texas. The affidavit also addressed the allegations in Brenham Oil’s petition

regarding ENI’s relationship with TGS:

With regard to the facts alleged by the Plaintiff, Eni S.p.A. employees communicated with one employee of TGS-NOPEC Geophysical Company (“TGS”), Sara Stephens, who is based in Texas, regarding a license for the use of geophysical data related to the Togolese Republic (“Togo”). Ms. Stephens traveled to Milan, Italy in early 2010 for the only meeting that took place related to the licensing of this data. No Eni S.p.A. employee ever traveled to Texas in connection with the data licensing. All of these employees were located in Italy at the time and still are located there.

....

Eni S.p.A. has never committed a tort in whole or in part in Texas.

33 These statements in Bollini’s affidavit corresponded to the factual allegations in

Brenham Oil’s petition. They admit that ENI negotiated for and purchased seismic

data from TGS. Apart from this non-tortious conduct, Brenham Oil’s petition was

devoid of specific Texas-linked factual allegations regarding the alleged aiding and

abetting. Given that the defendant’s burden to negate jurisdiction is “tied to the

allegations in the plaintiff’s pleading,” id., ENI adequately negated the

jurisdictional allegations by denying particular associations with Texas and

concluding with the factual assertion that it had “never committed a tort in whole

or in part in Texas.”

Once ENI had offered evidence to negate the jurisdictional allegations

contained in the petition, the burden returned to Brenham Oil to “respond with its

own evidence that affirms its allegations.” Id. at 659. In its reply to ENI’s special

appearance, Brenham Oil pointed to evidence illustrating the history of

negotiations between ENI and TGS over the data, the intense pursuit of the deal

with ENI by TGS’s AMEAP employees, and the fact that ENI ultimately

purchased the data after it had been awarded the concession from Togo. In

particular, Brenham Oil relied on ENI’s communications with TGS employees in

Houston. For example, although Stephens was based in London, her emails to ENI

made clear that she was working as part of a team with leadership in Houston.

Occasionally, ENI employees communicated by email with TGS employees in

34 Houston, such as Santana. When ENI had trouble accessing the purchased data

from TGS over the Internet, TGS sent a hard drive from Houston to ENI’s Milan

office. This evidence, however, failed to show “a substantial connection between

those contacts,” i.e. the negotiations with TGS to acquire data, “and the operative

facts of the litigation.” See Moki Mac, 221 S.W.3d at 585.

In Moki Mac, Texas parents sued a Utah river-rafting outfitter for negligence

after their son died on one of the company’s trips to the Grand Canyon in Arizona.

Id. at 573. The outfitter filed a special appearance contesting personal jurisdiction.

Id. The Supreme Court of Texas ultimately found that the state’s courts lacked

specific jurisdiction over the parents’ claims. Id. at 588. While the outfitter had

directed advertising to Texas that the parents asserted they relied upon, the Court

reasoned that the operative facts of their claims did not pertain to the advertising

but rather to what occurred during the outing in Arizona. See id. at 584–88. The

Court wrote:

Certainly on a river rafting trip safety is a paramount concern, and we accept as true the [parents’] claim that [their son] might not have gone on the trip were it not for [the outfitter’s] representations about safety. However, the operative facts of the [parents’] suit concern principally the guides’ conduct of the hiking expedition and whether they exercised reasonable care in supervising [the son]. The events on the trail and the guides’ supervision of the hike will be the focus of the trial, will consume most if not all of the litigation’s attention, and the overwhelming majority of the evidence will be directed to that question. Only after thoroughly considering the manner in which the hike was conducted will the jury be able to assess the [parents’] misrepresentation claim. 35 Id. at 585. Thus, Moki Mac teaches that identifying the operative facts of a claim in

order to analyze whether a court has specific jurisdiction is tantamount to

identifying the facts that “will be the focus of the trial.” See id.

Brenham Oil alleged that ENI aided and abetted the alleged torts of TGS. In

broad terms, it accused ENI of “substantially assist[ing] and/or encourag[ing] TGS

to make false . . . and/or defamatory statements to Togolese officials regarding

Brenham Oil & Gas,” and of “substantially assist[ing] TGS in causing the tortious

interference.” As such, the focus at a trial on this claim—i.e., the operative facts of

the claim—would be acts or communications assisting or encouraging TGS to

malign Brenham Oil or otherwise interfere with its prospective business relations

with Togo. However, Brenham Oil neither alleged nor offered evidence of

particular tortious acts or communications by ENI directed at TGS, Brenham Oil,

or Texas. See Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 437 (Tex.

1982) (holding that court lacked specific jurisdiction over foreign defendants when

“no specific acts of conspiracy or misrepresentations” were attributed to them).

The Texas-linked evidence relied upon by Brenham Oil pertains only to ENI’s

nontortious conduct in the purchase of seismic data from TGS. These forum

contacts are not the operative facts of the litigation and therefore are not contacts

that will support an exercise of specific jurisdiction. See Moki Mac, 221 S.W.3d at

36 Nevertheless, Brenham Oil relies on four cases to support its argument that

the trial court had specific jurisdiction over this case. The first case, H. Heller &

Co., Inc. v. Louisiana-Pacific Corp., is inapposite because it involved a post-

judgment attack on a foreign judgment and therefore involves a highly deferential

standard of review. 209 S.W.3d 844, 849 (Tex. App.—Houston [14th Dist.] 2006,

pet. denied) (requiring “the judgment debtor to prove by clear and convincing

evidence that the foreign judgment should not be given full faith and credit”)

Each of the other three cases emphasized that specific jurisdiction was

proper because the asserted claims arose directly from the defendants’ contacts

with Texas that also constituted the operative facts of the litigation. See Paul

Gillrie Inst., Inc. v. Universal Computer Consulting, Ltd., 183 S.W.3d 755, 763–64

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding in a libel suit that an out-

of-state publisher’s conduct gave rise to plaintiff’s claims because the distribution

of defamatory statements actually took place in Texas); see also Nogle & Black

Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 285 (Tex. App.—Houston [14th Dist.]

2009, no pet.) (holding that a nonresident defendant’s contract with a Texas-based

engineer to design an inspection procedure for a wing spar supported specific

jurisdiction when the plaintiffs asserted negligence in the design and inspection of

the wing spar); Glenco Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157,

167 (Tex. App.—Fort Worth 2008, no pet.) (holding that telephone board meetings

37 involving Texas participants were the operative facts of the case and thus showed

purposeful availment). Unlike the plaintiffs in the foregoing cases, Brenham Oil

does not allege forum contacts that are substantially connected to the operative

facts of the litigation.

Because Brenham Oil’s claims against ENI do not arise from the alleged

forum contacts, the trial court did not err by dismissing them for lack of specific

jurisdiction. See Kelly, 301 S.W.3d at 659. Brenham Oil’s issue is overruled.

II. TGS’s motion to dismiss for forum non conveniens

Brenham Oil also asserts that the trial court erred by granting TGS’s motion

to dismiss for forum non conveniens. It argues that Togo is neither an available nor

an adequate forum in which to bring its claim against TGS and that the traditional

private- and public-interest factors favor litigation in Harris County.

An appellate court will reverse a trial court’s forum non conveniens

determination only if the record shows a clear abuse of discretion. See Quixtar Inc.

v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam). A

trial court abuses its discretion when it acts without reference to guiding rules or

principles. Id. If the trial court has considered all the relevant private- and public-

interest factors, and its balance of the factors is a reasonable one, its decision

deserves substantial deference. Id. An appellate court should not conduct a de novo

review by reweighing each of the factors. See id. at 35 (explaining that appellate

38 court erred when it “mechanically re-weighed the [forum non conveniens factors]

under the scope of an excessive burden of proof”).

“The ‘central focus of the forum non conveniens inquiry is convenience.’”

Id. at 33 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S. Ct. 252,

262 (1981)). The doctrine permits courts to dismiss a claim based on practical

consideration that affect litigants, witnesses, and the justice system. See id. at 34–

35. It allows a court to dismiss an impracticable action even when it has

jurisdiction and venue as to the parties and claims. See Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 507, 67 S. Ct. 839, 842 (1947); In re Smith Barney, Inc., 975 S.W.2d

593, 596 (Tex. 1998).

In deciding motions to dismiss based on forum non conveniens, Texas courts

follow the analysis of the United States Supreme Court in Gulf Oil. See Quixtar,

315 S.W.3d at 33–34; In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 677–78 (Tex.

2007) (plurality op.); Benz Grp. v. Barreto, 404 S.W.3d 92, 96 (Tex. App.—

Houston [1st Dist.] 2013, no pet.). The parties here agree that the dismissal was

predicated on the common law, as opposed to the Texas forum non conveiens

statute, but courts in Texas “regularly consider United States Supreme Court

precedent in both our common law and statutory forum non conveniens cases.”

Quixtar, 315 S.W.3d at 32.

39 The burden of proof on a forum non conveniens motion lies with the

defendant. Id. at 31. “A defendant seeking forum non conveniens dismissal

‘ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum.’” Id.

This burden is relaxed when the plaintiff is not a resident of the forum but is

typically at full strength when the plaintiff is a forum resident. Id. Nonetheless, the

burden is also diminished when “the plaintiff is a corporation that has chosen to

conduct extensive business in foreign countries and then is injured or defrauded in

the foreign venue as a result of those business transactions.” Vinmar Trade Fin.,

Ltd. v. Util. Trailers de Mex., S.A. de C.V., 336 S.W.3d 664, 678 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (citing DTEX, LLC v. BBVA Bancomer, S.A.,

508 F.3d 785, 795 (5th Cir. 2007)). Accordingly, even though Brenham Oil is a

Texas corporation with its headquarters in Texas, we afford less deference to its

choice of forum because its alleged injuries arose from its travels to Togo in search

of an oil concession in foreign waters.

Before a case can be dismissed for forum non conveniens, the court must

identify another forum that could hear the case. Reyno, 454 U.S. at 254 n.22, 102

S. Ct. at 265 (1981). The party seeking dismissal bears the initial burden of

showing that the proposed alternative forum is available and adequate. Quixtar,

315 S.W.3d at 33. Once a court has determined that there is an adequate alternative

forum that may hear the cause, it must weigh private- and public-interest factors to

40 determine whether forum non conveniens dismissal is appropriate. See Quixtar,

315 S.W.3d at 33–34.

A. Available and adequate alternative forum

“A ‘foreign forum is available when the entire case and all the parties can

come within the jurisdiction of that forum.’” Vinmar, 336 S.W.3d at 674 (quoting

Sarieddine v. Moussa, 820 S.W.2d 837, 841 (Tex. App.—Dallas 1991, writ

denied)). “[A]n alternative forum is adequate if the parties will not be deprived of

all remedies or treated unfairly, even though they may not enjoy the same benefits

as they might receive in an American court.” Pirelli Tire, 247 S.W.3d at 678

(internal quotations omitted); accord Vinmar, 336 S.W.3d at 674. “The substantive

law of the foreign forum is presumed to be adequate unless the plaintiff makes

some showing to the contrary, or unless conditions in the foreign forum made

known to the court, plainly demonstrate that the plaintiff is highly unlikely to

obtain basic justice there.” Vinmar, 336 S.W.3d at 674 (quoting DTEX, 508 F.3d at

796).

The trial court entered the following findings of fact and conclusions of law

pertaining to the availability and adequacy of a Togolese forum:

 “Brenham’s claims against TGS may be tried in the Republic to [sic] Togo.”

 “The Republic of Togo offers an adequate remedy for Brenham’s claims against TGS.”

41  “The Republic of Togo is an available alternative forum.”

 “Jurisdiction over Brenham and TGS exists in the Republic of Togo.”

Brenham Oil, however, argues that Togo is neither an available forum nor an

adequate forum to hear its tortious interference claim against TGS.

1. Availability of forum

Relying on the declaration of its expert witness, former Togolese judge

Kokouvi Pius Agbetomey, Brenham Oil contends that Togo is not an alternative

available forum because the substantive law of the forum precludes a Togolese

court from exercising jurisdiction over this dispute. Although TGS stipulated that it

would submit to the jurisdiction of a Togolese court for purposes of resolving this

dispute, Brenham Oil points to Agbetomey’s statement that a Togolese court

nevertheless lawfully could not exercise jurisdiction over two foreign corporations:

A Togolese judge may not, without risking a violation of said procedural provisions [of the Togolese Code of Civil Procedure], accept a referral of this nature concerning a civil case with regard to two subjects incorporated in the United States that do not have their domiciles in Togo.

Brenham Oil asserts that TGS’s submission to the jurisdiction of Togo does not

satisfy the availability prong. Thus, Brenham Oil concludes that TGS failed to

satisfy its burden to show that Togo is an available forum.

Brenham’s evidence notwithstanding, TGS offered the declaration of its own

expert witness, Togolese attorney Vienyemenu Florent Jonas Sokpoh, who reached

42 the opposite conclusion on the jurisdictional question. Brenham Oil contends that

Sokpoh’s declaration could not be considered by the court because it was not

authenticated, but when determining an issue of foreign law, a trial court may

consider “any material or source, whether or not admissible.” TEX. R. EVID. 203

(providing procedures for determining foreign law).

Sokpoh opined that “in all cases, the exception for the lack of jurisdiction in

Togolese law must be raised before any basic defense or any flat refusal.” Thus, he

concluded, “[i]f Brenham were to file suit in the Togolese courts, they would not

be able to declare themselves without jurisdiction if neither of the parties raises this

exception of lack of jurisdiction.” Furthermore, Sokpoh asserted that Togo’s

Hydrocarbon Code expressly requires Brenham Oil’s claims to be filed in Togo. In

the declaration, Sokpoh explained his reasoning on both points, providing citations

to the Togolese Code of Civil Procedure, Hydrocarbon Code, and Penal Code

(which, he explained, could be referenced by analogy for questions of civil law”).

Brenham Oil disagrees with Sokpoh’s legal opinions, arguing that his

interpretation of the Togolese Hydrocarbon Code is mistaken. Notably, however,

Agbetomey did not give an opinion about the disputed provisions of the

Hydrocarbon Code. When conducting a common-law forum non conveniens

analysis, courts have considered the uncontroverted testimony of a foreign law

expert sufficient to support a trial court’s determination that a foreign forum is

43 available. See Robinson v. TCI/US West Comms. Inc., 117 F.3d 900, 908 (5th Cir.

1997); accord Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1282–83 (11th

Cir. 2001). Brenham Oil further argues that Sokpoh was unqualified and

unreliable, but it did not object to his qualifications or reliability at the trial court

level. As a result, Brenham Oil has waived any error on these grounds. TEX. R.

APP. P. 33.1(a); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 411 (Tex.

1998) (holding that a challenge to the reliability of scientific expert witnesses must

be timely made to preserve error).

Finally, Brenham Oil argues that Togo should not be considered an available

forum because, according to Agbetomey, the courts of Togo lack authority to

compel the testimony of Togolese officials like Siah who participated in the

negotiations with Brenham Oil. This argument is misdirected. The “availability”

component of a forum non conveniens analysis centers on whether “the entire case

and all the parties can come within the jurisdiction of that forum.” See Vinmar, 336

S.W.3d at 674. The availability of compulsory process for the attendance of

witnesses is properly addressed as a private-interest factor. See In re Gen. Elec.

Co., 271 S.W.3d 681, 688 (Tex. 2008) (“Ordinarily, an alternate forum is shown if

the defendant is ‘amenable to process’ in the other jurisdiction.”); Gulf Oil, 330

U.S. at 508, 67 S. Ct. at 843 (listing “availability of compulsory process for

attendance of unwilling witnesses” as a private-interest factor).

44 We conclude that the trial court did not abuse its discretion in relying upon

TGS’s expert opinion evidence to conclude that a Togolese forum was available.

See Robinson, 117 F.3d at 908.

2. Adequacy of forum

Brenham Oil presents several reasons why it contends Togo is an inadequate

forum to try its tortious interference claim. It first asserts that “the enforceability of

a judgment in Togo is questionable” and that “TGS provided no evidence beyond

an unsupported conclusion in the Court’s findings and conclusions that any

judgment would be able to be enforced.” This challenge fails to account for the

legal presumption that the substantive law of the foreign forum is presumed to be

adequate unless the plaintiff makes some showing to the contrary, or unless

conditions in the foreign forum made known to the court plainly demonstrate that

the plaintiff is highly unlikely to obtain basic justice there. Vinmar, 336 S.W.3d at

674. Brenham Oil identifies nothing in the record to overcome this presumption

and support its contention that enforceability of a judgment is questionable.

Brenham Oil also argues that Togo is an inadequate forum because,

according to its expert Agbetomey, Togolese courts may not compel a foreign

national to testify during a civil trial and Togo does not try civil cases before juries.

The latter consideration, standing alone, does not render an alternative forum

inadequate. See Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34, 45 (Tex.

45 App.—Houston [1st Dist.] 2010, pet. denied). The former consideration, as

previously explained, is properly examined as one of the private-interest factors.

See Gulf Oil, 330 U.S. at 508, 67 S. Ct. at 843.

We conclude that the trial court did not err in finding that Togo is an

available and adequate alternative forum.

B. Private- and public-interest factors

Once a court has determined that there is an adequate alternative forum that

may hear the cause, it must weigh the canonical private- and public-interest factors

enunciated in Gulf Oil to determine whether forum non conveniens dismissal is

appropriate. See Quixtar, 315 S.W.3d at 33–34. When reviewing the trial court’s

decision to dismiss based on forum non conveniens, we must not conduct a de

novo review of the evidence by mechanically reweighing each forum non

conveniens factor. Quixtar, 315 S.W.3d at 35. The United States Supreme Court

has refused to “lay down a rigid rule to govern discretion,” noting that “[e]ach case

turns on its facts.” Reyno, 454 U.S. at 249; 102 S. Ct. at 263. If “central emphasis

were placed on any one factor, the forum non conveniens doctrine would lose

much of the flexibility that makes it so valuable.” Id. at 249–50; 102 S. Ct. at 263.

Admittedly, the various factors weighed by the trial court “may be difficult to

quantify.” Quixtar, 315 S.W.3d at 35.

46 1. Private-interest factors

The private-interest factors are: (1) the relative ease of access to sources of

proof; (2) the availability of compulsory process for attendance of unwilling, and

the cost of obtaining attendance of willing witnesses; (3) the possibility of view of

premises, if view would be appropriate to the action; (4) the enforceability of a

judgment once obtained; and (5) all other practical problems that make trial of a

case easy, expeditious and inexpensive. Gulf Oil, 330 U.S. at 508, 67 S. Ct. at 843;

Quixtar, 315 S.W.3d at 33. With respect to these private-interest factors, Brenham

Oil contends that the majority of witnesses are located in Texas, the majority of the

evidence is located in Texas, the alleged acts of tortious interference occurred in

Texas or were supervised and directed from Texas, and a Togolese trial would be

inordinately expensive. It relies on the fact that both parties are headquartered in

Texas and that a large amount of discovery has already taken place while the case

has been pending in the trial court. Furthermore, Brenham Oil argues that,

according to its expert witness, the Togolese courts may not compel foreign

nationals or the Togolese government officials to testify.

We do not agree that the trial court abused its discretion in weighing the

private-interest factors. Brenham Oil’s arguments focus on what it claims is the

superior availability of evidence and witnesses in Houston, as well as the greater

convenience to the parties of trying the case in a jurisdiction where they are

47 headquartered. While Brenham Oil is correct that both its own witnesses, such as

Gaille and Hardy, and the members of TGS’s AMEAP team who are based in

Houston, such as Hicks and Abdallah, are convenient to Houston and subject to

service of a subpoena, there are other material witnesses who are located in Togo

and Israel. The Togolese government was assisted at the negotiations with

Brenham Oil by Yair Green, an Israeli lawyer, and Raphael Edery, an Israeli

economic adviser. It is undisputed that Siah and his superior Dammipi Noupokou,

the Togolese Minister of Energy and Mines, are located in Togo. TGS asserts that

it is unable to obtain vital defense testimony in a Texas court because the Togolese

witnesses refused to participate in discovery in Texas, and their testimony could

not be secured through the Texas court because Togo is not a party to the Hague

Convention on the Taking of Evidence Abroad. As shown in its findings of fact

and conclusions of law, the trial court took the location of foreign witnesses into

account, writing, “all material witnesses other than Brenham’s witnesses, are

located in Togo or Israel, and this Court has virtually no means to compel their

testimony; the individual responsible for sending the correspondence to Togo,

which is the basis for Brenham’s claim against TGS, is located in the United

Kingdom, and is no longer employed by any TGS entity . . . .”

TGS stressed before the trial court that securing the testimony of Siah and

Noupokou would be critical for its defense. To recover for tortious interference

48 with prospective business relations, the plaintiff must demonstrate that the alleged

interference prevented the plaintiff from securing a contract. See Richardson-

Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 475–76 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied) (delineating the tort’s elements). TGS

argued that without the testimony of the Togolese decisionmakers, Siah and

Noupokou, it would be unable to explore the causes of Togo’s decision to award

Block 2 to ENI rather than Brenham Oil.

Brenham Oil’s contention that the alleged tortious interference occurred in

Houston notwithstanding, it is undisputed that, if the Togolese were in fact

influenced by Welch’s negative letter to Siah, then the letter must have swayed

Togolese officials located in Togo. See In re Omega Protein, 288 S.W.3d 17, 21–

22 (Tex. App.—Houston [1st Dist.] 2009) (orig. proceeding) (granting mandamus

petition to obtain forum non conveniens dismissal of claims against company

headquartered in Texas when accident occurred in Virginia and “persons with the

most knowledge” of the alleged tort were located in Virginia). In addition to the

testimony of the Togolese officials themselves, any internal correspondence or

memoranda of the officials and Togolese government is presumably located in

Togo. See Vinmar, 336 S.W.3d at 677. Thus, as a matter of the availability of

evidence, the effect of the letter in Togo is significant to establishing the validity of

claims at issue. Given the potential importance of foreign witnesses and any

49 Togolese documentary evidence to determining the effect that TGS’s alleged

interference had on the Togolese government, the trial court could have reasonably

weighed the first and second private-interest factors in favor of dismissal. See

Vinmar, 336 S.W.3d at 677 (upholding forum non conveniens dismissal when

appellees’ evidence “showed that much of the pertinent documentary evidence and

witnesses [were] located in Mexico”); Omega Protein, 288 S.W.3d at 21–22.

The other considerations adduced by Brenham Oil, such as the expense of

trial in Togolese courts that use the French language, the large amount of discovery

already conducted in Harris County, and the opinion of its expert that Togolese

courts cannot compel witness testimony, do not demonstrate that the trial court

abused its discretion. Although courts must consider as a private-interest factor “all

other practical problems that make trial of a case easy, expeditious and

inexpensive,” the need for a Texas company to travel to a foreign nation and seek

relief in courts that use a different language is not determinative. See Quixtar, 315

S.W.3d at 33 (holding that is error for a court to require that every Gulf Oil factor

favor dismissal); DTEX, 508 F.3d at 801 (discounting hardship to plaintiff of

litigating in foreign forum when its claims arose from its decision to make

purchases overseas). Moreover, a trial in Houston involving potential British,

Israeli, and Togolese witnesses, as well as documents written in French and

Hebrew, would carry its own set of expenses and inexpediencies. See Pirelli Tire,

50 247 S.W.3d 678–79 (observing that litigation in either forum would necessitate

some amount of travel and translation). Furthermore, the court was entitled to

consider and credit the opinion of TGS’s expert Sokpoh that the accumulated

evidence would be admissible in a Togolese proceeding, and that Togolese courts

could compel the testimony of witnesses located in Togo.

Finally, we note that our conclusion affords great deference to the trial

court’s determination. Although Brenham Oil asserts that the trial court could only

have dismissed the case “if TGS were able to prove that all Gulf Oil factors

weighed strongly in favor of Togo,” that is not the proper standard. See Quixtar,

315 S.W.3d at 33. Here, the trial court reasonably could have weighed the private-

interest factors in favor of dismissal by giving greater weight to the availability of

evidence in Togo than to the language barrier or other practical difficulties for the

parties of taking the case to Togo. See, e.g., SES Prods., Inc. v. Aroma Classique,

LLC, No. 01–12–00219–CV, 2013 WL 2456797, at *6 (Tex. App.—Houston [1st

Dist.] June 6, 2013, no pet.) (mem. op.) (finding that trial court’s balancing of

factors was reasonable, even though defendants “evidentiary showing under the

private-interest factors could have been stronger,” because “the Gulf Oil factors

provide for a flexible inquiry, with no one factor being dispositive”).

51 2. Public-interest factors

The public-interest factors are: (1) the administrative difficulties for courts

when litigation is piled up in congested centers instead of being handled at its

origin; (2) the burden of jury duty that ought not to be imposed upon the people of

a community with no relation to the litigation; (3) local interest in having localized

controversies decided at home; and (4) avoiding conflicts-of-law issues. Gulf Oil,

330 U.S. at 508–09, 67 S. Ct. at 843; Quixtar, 315 S.W.3d at 33–34.

Brenham Oil does not address the first factor, claiming that administrative

problems and docket congestion are “minimally relevant” to this case. Further,

characterizing “jury duty as an unlikely burden under the circumstances,” it

essentially concedes that the second factor does not weigh heavily for or against

dismissal.

Instead, Brenham Oil argues that the third and fourth public-interest

factors—local interest in having localized controversies decided at home and

avoiding conflicts-of-law issues—strongly favor litigation in Texas. It emphasizes

that both parties are headquartered in Houston and asserts that “TGS’s actions

arose directly in Houston or were supervised and approved of by TGS in Houston.”

Brenham Oil attempts to contrast these facts from those in two recent decisions of

this court, Vinmar and Benz Group. Vinmar involved a suit by two Mexican

corporations against a company headquartered in Texas with extensive

52 international operations. 336 S.W.3d at 667. Brenham Oil relies on the following

passage:

Texas jurors do not have a strong interest in resolving a dispute arising from Mexican business transactions, contracts executed in Mexico, and alleged torts emanating from Mexico, directed toward a multinational corporation that thrives on conducting business in emerging international markets. Significantly, this controversy arose in Mexico and primarily involves Mexican residents.

Id. at 679–80. Brenham Oil points out that the court in Benz Group quoted this

language in support of a forum non conveniens dismissal of claims initiated by

Texas plaintiffs against Brazilian defendants. 404 S.W.3d at 99. Thus, Brenham

Oil relies on the fact that this case, unlike Vinmar and Benz Group, involves both a

Texas plaintiff and Texas defendant.

The difference Brenham Oil seeks to highlight between the facts of this case

and those in Vinmar and Benz Group is an imperfect one. While Brenham Oil is

correct that the parties in this case, unlike those in the prior decisions, are both

Texas residents and that the alleged torts could be said to have “emanated” from

the Houston-based AMEAP team, other reasons relied upon in support of dismissal

in Vinmar and Benz Group similarly apply to the dispute between Brenham Oil and

TGS. Looking at the record before the trial court, the present controversy is fairly

characterized as arising from a prospective Togolese “business transaction” and

involves a corporation, Brenham Oil, with hopes to “thrive” by “conducting

business in emerging international markets.” As Gaille stated in his letter to Welch,

53 Brenham Oil is “a new vehicle that I am using to place capital in international

exploration opportunities.”

In Benz Group, the court, after quoting the above language from Vinmar,

said that the defendant “adduced evidence that Brazil was the main location for the

negotiations, agreements, alleged misdeeds, and ongoing business relevant to the

dispute.” Id. Those facts, not the residence of the parties, were what the Benz

Group court found significant in Vinmar’s analysis. Furthermore, those facts have

parallels in the present dispute, even though, unlike the Benz Group defendant,

TGS is a Texas company. Brenham Oil’s negotiations took place in Togo with

Togolese officials and their Israeli advisers, the alleged misdeed was to interfere

with those negotiations, and the projected “ongoing business relevant to the

dispute,” the drilling, would have allegedly eventuated in Togolese waters.

Brenham Oil contends that Texas law would apply to its claims. However, it

supports this contention by referring to a section of its brief discussing the

jurisdiction of the Togolese courts over the parties. In the absence of argument or

authority to the contrary, the trial court was entitled to weigh the possibility that

foreign law would apply to the suit in favor of dismissal. See Vinmar, 336 S.W.3d

at 679 (noting that the mere possibility that foreign law may ultimately apply has

been treated a factor militating in favor of forum non conveniens dismissal); SES

Prods., 2013 WL 2456797, at *6 (same).

54 Brenham Oil has not demonstrated that the trial court abused its discretion in

weighing the private- or public-interest factors. We therefore conclude that the trial

court did not err in dismissing Brenham Oil’s suit for forum non conveniens. As

we affirm the judgment of the trial court dismissing Brenham Oil’s claims, we

need not address the jurisdictional issues raised in TGS’s cross-appeal, which we

dismiss as moot. See Vinmar, 334 S.W.3d at 671–72 (a court may dismiss a case

for forum non conveniens and bypass jurisdictional issues when judicial economy

is best served thereby) (citing Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,

549 U.S. 422, 431, 127 S. Ct. 1184, 1191–92 (2007)).

Conclusion

We affirm the judgment of the trial court.

Michael Massengale Justice

Panel consists of Justices Massengale, Brown, and Huddle.