Cohn-Daniel Corp. v. Corporación De La Fonda, Inc.

514 S.W.2d 338
CourtCourt of Appeals of Texas
DecidedSeptember 5, 1974
Docket4709
StatusPublished
Cited by4 cases

This text of 514 S.W.2d 338 (Cohn-Daniel Corp. v. Corporación De La Fonda, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohn-Daniel Corp. v. Corporación De La Fonda, Inc., 514 S.W.2d 338 (Tex. Ct. App. 1974).

Opinions

WALTER, Justice.

Cohn-Daniel Corporation has appealed from an order dismissing its cause of action against Corporacion De La Fonda, Inc., a New Mexico corporation for services rendered under the contract hereinafter set out. Service was had pursuant to the provisions of Article 2031b, Vernon’s Ann.Tex.Rev.Civ.St, known as the Texas Long Arm Statute.

Appellee agrees that the Appellant’s statement of the facts is substantially correct and is as follows:

“Appellant is a Texas corporation with its principal and only offices located in Dallas, Texas. Appellee is a New Mexico corporation with its offices located in Santa Fe, New Mexico.
The negotiations which eventually led to the execution of the contract at issue in this cause were initiated in Dallas, Texas, by a short conversation between Appellee’s President, Mr. Bailen, and Appellant’s Board Chairman, Mr. Cohn, which occurred in the Chaparral Club in Dallas, Texas. Mr. Bailen explained that Appellee owned an old hotel in Santa Fe and that a major rehabilitation program including heating and air conditioning was contemplated by Appellee. Mr. Cohn explained -that Appellant was in the process of air conditioning an old courthouse in Dallas and that they had some experience in this type of work.
Subsequent to this initial conversation between Appellee and Appellant, one of Appellee’s officers, Mr. Ashton, came to Dallas, Texas, and met with representatives of Appellant to discuss the air conditioning work to be done at the La Fonda Hotel in Santa Fe. Mr. Ashton solicited Appellant’s President, Mr. Bern-baum, to travel to Santa Fe to look at the project. After Mr. Bernbaum’s trip to Santa Fe, negotiations were entered into by Appellee and Appellant .by mail and telephone calls toward a contract [340]*340whereby Appellant would serve as a consultant to Appellee with regard to the air conditioning modification desired by Ap-pellee. After negotiations by mail and telephone by Appellant in Dallas, Texas, and Appellee in Santa Fe, New Mexico, a contract was entered into by Appellee and Appellant. The contractual agreement was prepared by Appellee and mailed to Dallas, Texas, where it was executed by Appellant. The contractual document was then mailed to Appellee in Santa Fe, New Mexico, where it was executed by Appellee some eight days later.”

Plaintiff’s Exhibit No. 1 is a copy of the contract and is as follows:

“AGREEMENT
For a consideration of Twenty thousand ($20,000.00) dollars, Cohn-Daniel Corporation, represented by Mr. Fred Bernbaum and Henry Cohn, do hereby agree to perform the following services for Corporación de La Fonda, Inc. (‘Corporation)’
1. Act as an owner’s representative and general co-ordinator during the preliminary, design and installation phases of the proposed air-conditioning system and any modifications of the heating system at La Fonda Hotel, Santa Fe, New Mexico.
2. Assist, recommend, and direct programs necessary for the selection of a competent engineering consulting firm for a complete feasibility study and preparation of the final plans and specifications for La Fonda.
3. Recommend any changes in designs prepared by the consulting engineers and approve the final design of air conditioning and heating facilities.
4. Assist, recommend and direct the programs necessary for the selection of a competent mechanical contractor or contractors to install air-conditioning and heating facilities for La Fonda.
5. Negotiate and prepare the necessary contractual agreements between Corporación de La Fonda, Inc. and any third parties involved in air conditioning.
6. Work with Corporación de La Fonda, Inc. in any disputes with any third parties involved in air conditioning.
7. Recommend and suggest and supervise the best method of buying equipment.
8. Conduct periodic inspections throughout the design and installation phase and approve all requests for progress payments.
Corporación agrees to remit Fifteen Thousand ($15,000) for services rendered in ten (10) monthly payments commencing the month of May at the rate of $1,500.00 per month and the balance of $5,000.00 on conclusion of the project.
In all respects, the final decisions will rest with Corporación and Cohn-Daniel et al will serve in an advisory capacity vis-a-vis Corporation.
If possible, time wise as well as economics wise, the project will involve a test area (approximately 50 rooms) during March-May, 1969 and that the balance of the job will be done in winter-spring of 1969-70.”

In its special appearance La Fonda asserted that it was not doing business in Texas within the meaning of Article 2031b and that to exercise jurisdiction over it in Texas would deprive it of due process of law under the United States Constitution. The court’s order sustaining La Fonda’s special appearance recites that La Fonda’s special appearance — “be and is hereby in all things sustained,” thereby finding that La Fonda was not doing business in Texas within the meaning of Article 2031b and [341]*341that to exercise jurisdiction over it in Texas would be a violation of the due process clause of the Constitution of the United States.

Cohn-Daniel performed part of its contract in Texas and received some of its payments for its services by mail in Texas. The preliminary negotiations for the contract began in Dallas between La Fonda and Cohn-Daniel. Before the contract was executed, Mr. Ashton came to Dallas and talked with Cohn-Daniel about the air conditioning work to be done on the hotel. As a result of this meeting Cohn-Daniel’s President went to Santa Fe to inspect the project. Thereafter negotiations were entered into between the parties by mail and telephone which culminated in the contract set out above. Cohn-Daniel performed a great deal of its obligations under the contract at its office in Dallas. It acted as the general co-ordinator of the project by telephone and mail from Dallas. Some of the payments under the contract were made by La Fonda to Cohn-Daniel by mail from Santa Fe to Dallas. Some of the checks were as small as fifty dollars and some were for several thousand dollars.

Our question is to decide whether the trial court had in personam jurisdiction over the nonresident defendant. First, we must determine if La Fonda is amenable to process under the Texas Long Arm Statute, Article 2031b and then decide if the exercise of personal jurisdiction over La Fonda is consistent with the requirements of due process of law under the United States Constitution. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973); Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (5th Cir. 1966).

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Cohn-Daniel Corp. v. Corporación De La Fonda, Inc.
514 S.W.2d 338 (Court of Appeals of Texas, 1974)

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514 S.W.2d 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohn-daniel-corp-v-corporacion-de-la-fonda-inc-texapp-1974.