Gulf Coast International, L.L.C. v. the Research Corporation of the University of Hawaii
Opinion
NO. 01-15-00625-CV
FILED IN IN THE COURT OF APPEALS FOR THE 1st COURT OF APPEALS HOUSTON, TEXAS FIRST DISTRICT OF TEXAS AT HOUSTON 12/11/2015 4:24:44 PM
CHRISTOPHER A. PRINE GULF COAST INTERNATIONAL, L.L.C., Clerk Appellant v.
THE RESEARCH CORPORATION OF THE UNIVERSITY OF HAWAII, Appellee
On appeal from the 333rd Judicial District Court, Harris County, Texas The Honorable Joseph J. “Tad” Halbach, Jr. presiding Cause No. 2014-05868
SUR-REPLY OF APPELLEE
Blank Rome LLP Blank Rome LLP
Michael K. Bell David Meyer State Bar No. 02081200 State Bar No. 24052106 717 Texas Ave., Suite 1400 717 Texas Ave., Suite 1400 Houston, Texas 77002 Houston, Texas 77002 Telephone: (713) 228-6601 Telephone: (713) 228-6601 Facsimile: (713) 228-6605 Facsimile: (713) 228-6605 mbell@blankrome.com dmeyer@blankrome.com
Attorneys for Appellee
December 11, 2015
TABLE OF CONTENTS
Page
SUR-REPLY .............................................................................................................. 1
PRAYER .................................................................................................................... 3
i
TABLE OF AUTHORITIES Page(s)
Cases Bullion v. Gillespie, 895 F.2d 213 (5th Cir. 1990) ............................................................................ 1, 2
Clark v. Noyes, 871 S.W.2d 508 (Tex. App.—Dallas 1994, no writ) ............................................ 2
Henkel v. Emjo Investments, Ltd., No. 01-14-00703-CV, 2015 Tex. App. LEXIS 9058 (Tex. App.— Houston [1st Dist.] Aug. 27, 2015, no pet. hist.) .................................................. 1
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992) ........................................................................1, 2, 3
N.P. v. Methodist Hosp., 190 S.W.3d 217 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)................................................................................................................... 2
P.V.F., Inc. v. Pro Metals, Inc., 60 S.W.3d 320 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)................................................................................................................... 1
Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex. 1990) ................................................................................ 3
Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15 (Tex. App.—Houston [1st Dist.] 2010, no pet.) .......................... 2
WesternGeco L.L.C. v. Ion Geophysical Corp., 776 F. Supp. 2d 342 (S.D. Tex. 2011) .............................................................. 1, 2
ii
SUR-REPLY
While RCUH does not agree with any of the arguments raised in GCI’s reply
brief, which includes citations to a total of twelve opinions that were not included in
either GCI’s appellant’s brief or RCUH’s appellee’s brief,1 RCUH briefly addresses
the following assertions included in GCI’s reply:
Accordingly, the Court must accept as true GCI’s uncontroverted allegations and evidence that the KOK is a commercial vessel. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 270 (Tex. 1992) (reviewing a summary judgment, the court noted it “must accept as true the clear, direct, and positive evidence of an undisputed affidavit, even of a party’s agent”); Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990) (noting that on a special appearance, the court accepts as true all uncontroverted allegations in the plaintiff’s complaint and resolves in the plaintiff’s favor all conflicts between the parties’ affidavits); WesternGeco L.L.C. v. Ion Geophysical Corp., 776 F. Supp. 2d 342, 353 (S.D. Tex. 2011) (“Any genuine, material conflicts between the facts established by the parties’ affidavits and other evidence are resolved in favor of plaintiff for purposes of determining whether a prima facie case [for personal jurisdiction] exists.”) (Appellant’s Reply at p. 6.)
Accordingly, the Court must accept as true Van Vleit’s direct, unequivocal testimony confirming that 90% of RCUH’s contacts with GCI were with Van Vleit in Houston. (Appellant’s Reply at pp. 7-8.)
RCUH’s objection to Van Vleit’s testimony as “self-serving” is baseless. RCUH failed to challenge Van Vleit’s competency, personal knowledge, or foundation. Moreover, without evidence contradicting the allegedly self- serving statements, the court may accept as true Van Vleit’s testimony. See Henkel v. Emjo Investments, Ltd., No. 01-14-00703-CV, 2015 Tex. App. LEXIS 9058, *11 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, no pet.
1 These include P.V.F., Inc. v. Pro Metals, Inc., 60 S.W.3d 320 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). RCUH acknowledges that P.V.F. was cited by GCI in one of its trial court motions filed after the June 5, 2015, hearing on RCUH’s special appearance. See CR 510. However, in its response to that particular motion, RCUH explained in detail why P.V.F. does not support GCI’s position. See CR 588-590.
hist.) (“In conducting our review, we accept as true both the allegations in the pleadings and the evidence on file.”); see also Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (court is to accept as true the allegations in the petition); Jack B. Anglin Co, 842 S.W.2d at 270; Bullion, 895 F.2d at 216-17; WesternGeco, 776 F. Supp. 2d at 353. (Appellant’s Reply at p. 9, footnote 11.)
In its appellant’s brief, GCI limited its discussion of the applicable standard
of review to one sentence that did not include any of the arguments quoted above.
See Appellant’s Brief at p. 13. (RCUH respectfully submits that the full standard of
review is set forth in RCUH’s appellee’s brief. See Appellee’s Brief at pp. 14-15.)
Therefore, the arguments quoted above were waived and should be disregarded by
the Court. N.P. v. Methodist Hosp., 190 S.W.3d 217, 225 (Tex. App.—Houston [1st
Dist.] 2006, pet. denied) (“An issue raised for the first time in a reply brief is
ordinarily waived.”).
Additionally, in citing to Bullion v. Gillespie, 895 F.2d 213 (5th Cir. 1990)
and WesternGeco L.L.C. v. Ion Geophysical Corp., 776 F. Supp. 2d 342 (S.D. Tex.
2011), GCI appears to be asking the Court to apply the evidentiary burden-shifting
framework applicable in federal court to personal jurisdiction challenges. However,
this is not applicable to personal jurisdiction challenges in Texas state courts. Clark
v. Noyes, 871 S.W.2d 508, 511 (Tex. App.—Dallas 1994, no writ) (“However,
Bullion addressed the procedure for determining personal jurisdiction in federal
court…. Although we use the federal due process standard in analyzing minimum
contacts, see, e.g., Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990), we do
not use federal procedural rules in determining how such proof must be made.”).
Finally, regarding GCI’s reliance on Jack B. Anglin Co. v. Tipps, 842 S.W.2d
266, 270 (Tex. 1992), RCUH notes that the opinion concerns evidentiary standards
for summary judgments, not special appearances, and is therefore inapplicable to
GCI’s appeal. Even if it were, as set forth in its appellee’s brief, RCUH has pointed
to the evidence that was before the trial court contradicting/disputing Van Vleit’s
affidavit testimony. See, e.g., Appellee’s Brief at pp. 9-12.
PRAYER
Appellee The Research Corporation of the University of Hawaiʻi respectfully
requests that the trial court’s order granting its special appearance be affirmed, and
for such other and further relief to which it may show itself to be justly entitled.
Respectfully submitted,
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