Garner v. Furmanite Australia Pty., Ltd.

966 S.W.2d 798, 1998 Tex. App. LEXIS 1999, 1998 WL 149596
CourtCourt of Appeals of Texas
DecidedApril 2, 1998
Docket01-97-00247-CV
StatusPublished
Cited by67 cases

This text of 966 S.W.2d 798 (Garner v. Furmanite Australia Pty., Ltd.) 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
Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 1998 Tex. App. LEXIS 1999, 1998 WL 149596 (Tex. Ct. App. 1998).

Opinion

OPINION

HEDGES, Justice.

Appellant was injured in an industrial accident involving a milling machine while working in Abu Dhabi, United Arab Emirates. He sued appellees Furmanite Australia Pty., Ltd. (Furmanite) and Tony Backhouse alleging that they were strictly liable in tort because they designed, marketed, and manufactured the milling machine which caused his injuries. Appellant alleges that this machine was defective and unreasonably dangerous. Appellees filed a joint special appearance and plea to the jurisdiction alleging that because both were residents of Australia, Texas courts did not have personal jurisdiction over them. The trial court granted appellees’ special appearances and dismissed the causes of action against them. In one point of error, appellant alleges that the trial court erred in granting the appellees’ special appearance. We affirm.

*801 STATEMENT OF FACTS

Appellant Gamer worked for Self Leveling Machines, Inc. (SLM), a Texas corporation. SLM entered into a contract with Sofec to perform precision milling work in Abu Dhabi. SLM sent Gamer, a resident of Louisiana, to Abu Dhabi to work on the Sofec contract. While operating a specialized milling machine, the machine quickly rebounded in reverse, trapping Gamer’s knee and severely injuring him. In his pleadings, Gamer alleged that the milling machine was designed, marketed, and manufactured by Furmanite and Backhouse.

The milling machine was owned by Self Leveling Machines Australia Pty., Ltd. (SLM Australia). SLM Australia is a private Australian corporation and the parent corporation of SLM. The machine was shipped directly from England to Abu Dhabi to be used in the Sofec contract. The machine was originally designed and manufactured by Furmanite, who transferred the machine to SLM Australia approximately two years before the accident. Furmanite has never marketed the machine for sale in Texas or anywhere else.

Backhouse is a citizen and resident of Australia. He is an employee of Furmanite and holds patents on the milling machine jointly with Furmanite. Backhouse was involved in the investigation of Gamer’s accident in his capacity as an employee of Furmanite. In that capacity, Backhouse made eight to ten visits to Texas in the five years before the injury, and spent about 60 days in Texas, of which 40 days were in the last two years. Backhouse was involved in training employees of SLM. Athough he is Engineering Director for SLM, he was not compensated directly by SLM. Furmanite billed SLM for Backhouse’s services and received payment for those services.

Backhouse is the settlor for the Backhouse Family Trust, an Australian trust. The trust owns 100% of Sierra Nominees, an Australian limited company. Sierra Nominees in turn owns 87½% of SLM Australia, which owns 100% of the stock in SLM. Sierra Nominees also owns 85% of Furmanite.

PERSONAL JURISDICTION

In his sole point of error, appellant alleges that the trial court erred by granting Fur-manite’s and Backhouse’s special appearance. Appellant alleges that (1) Furmanite and Backhouse purposefully availed themselves of the Texas forum, (2) either appellant’s cause of action arose out of transaction conducted in Texas or Furmanite and Backhouse have systematic and continuous contact with Texas; and (8) the assumption of jurisdiction by Texas over appellees comports with traditional notions of fair play and substantial justice. To support his claim, appellant alleges the following facts: 1

(1) Backhouse invented the milling machine and he and Furmanite own the patents to the machine;
(2) Backhouse visited Texas eight to ten times in the five years before appellant’s injury, and he spent 40 days in Texas in the two years before accident;
(3) SLM and Furmanite are indirectly owned primarily by Backhouse;
(4) Backhouse trained SLM employees;
(5) Backhouse used SLM offices in Texas to conduct business for SLM;
(6) While in Texas, Backhouse was involved in negotiating the contract with So-fec.

Appellant argues that these facts are sufficient to establish that Furmanite and Back-house were “doing business” in Texas as defined in Tex. Crv. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1986). 2 He also argues *802 that there were sufficient minimum contacts to satisfy due process concerns under either “specific” jurisdiction or “general” jurisdiction as defined by Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990).

Appellant contends that Backhouse and Furmanite satisfy the requirement of sufficient minimum contacts with the forum state so as to subject them to personal jurisdiction in Texas. Specifically, he points to Back-house’s eight to ten trips to Texas over the prior five years, his spending 40 days in Texas in the years before the injury, his using SLM offices in Texas, and his training of SLM employees. Appellant concludes by summarily stating that it is clear that appel-lees did not negate all bases of personal jurisdiction.

Standard of Review

On appeal from a special appearance, we review all evidence in the record to determine if the nonresident defendant negated all possible grounds for personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985); James v. Illinois Central R.R., 965 S.W.2d 594 (Tex. App.—Houston [1st Dist.] 1998, n.w.h.). Existence of personal jurisdiction is a question of law. James, 965 S.W.2d at 594. When, as here, the trial court does not file findings of fact in a special appearance, all questions of fact are presumed to support the judgment. Hawsey v. Louisiana Dep’t of Soc. Servs., 934 S.W.2d 723, 725 (Tex.App.—Houston [1st Dist.] 1996, writ denied). However, a trial court’s conclusions of law are reviewed de novo. Billingsley Parts & Equip., Inc. v. Vose, 881 S.W.2d 165, 169 (Tex.App.—Houston [1st Dist.] 1994, writ denied). To sustain a special appearance, the nonresident defendant must negate all bases of personal jurisdiction. C.S.R. Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996).

For Texas courts to exercise jurisdiction over a nonresident defendant, the Texas long-arm statute must authorize the exercise of jurisdiction, and the exercise of that jurisdiction must be consistent with federal and state guarantees of due process. Schlobohm, 784 S.W.2d at 356. The Texas long-arm statute authorized the exercise of jurisdiction over nonresidents who do business in Texas. Tex. Civ. PRAC.

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Bluebook (online)
966 S.W.2d 798, 1998 Tex. App. LEXIS 1999, 1998 WL 149596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-v-furmanite-australia-pty-ltd-texapp-1998.