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MEMORANDUM OPINION
No. 04-09-00562-CV
Maggie HADDAD, Appellant
v.
ISI AUTOMATION INTL., INC., Appellee
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-02344 Honorable Antonia Arteaga, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice Rebecca Simmons, Justice Marialyn Barnard, Justice
Delivered and Filed: April 28, 2010
AFFIRMED
This is an interlocutory appeal from the trial court’s order denying Maggie Haddad’s special
appearance. See TEX . CIV . PRAC. & REM . CODE ANN . § 51.014(a)(7) (Vernon Supp. 2009). Haddad
contends the trial court erred in denying her special appearance because (1) the evidence is legally
and factually insufficient to establish specific jurisdiction, (2) the evidence is legally and factually 04-09-00562-CV
insufficient to establish general jurisdiction, and (3) exercise of personal jurisdiction offends
traditional notions of fair play and substantial justice. We disagree, and therefore affirm.
BACKGROUND
ISI Automation Intl., Inc. (“ISI”) sells and installs media and electronic equipment for
residential and commercial customers. According to ISI, it contracted with Haddad for the purchase
and installation of media and electronic equipment to be used in Haddad’s Mexico condominium.
ISI filed suit against Haddad for breach of contract and quantum meruit/unjust enrichment, claiming
Haddad owed $52,798.00 for work done in accordance with two change orders. With regard to
jurisdiction, ISI asserted Haddad resides in San Antonio, Texas, contracted with ISI, and had
substantial contacts with the State.
In response, Haddad filed a special appearance in which she categorically denied the
existence of either specific or general jurisdiction, and supported the denial with her affidavit. ISI
filed a response to Haddad’s special appearance, supported by the affidavit of Eduardo Orozco, the
President and sole shareholder of ISI. In his affidavit, Orozco asserted numerous contacts in an
effort to establish the existence of either specific or general jurisdiction.
The trial court held a hearing on Haddad’s special appearance. At the hearing, in addition
to the evidence presented by the affidavits of Haddad and Orozco, the trial court swore in Orozco,
who testified, under questioning by the court, to Haddad’s other alleged forum contacts. At the
conclusion of the hearing, the trial court denied Haddad’s special appearance. The court’s ruling was
later reduced to writing in an order dated August 17, 2009. Haddad then perfected this appeal.
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ANALYSIS
ISI’s Contention Regarding Verification of Special Appearance
Before we address the merits of Haddad’s challenge to the trial court’s denial of her special
appearance, we consider ISI’s assertion that Haddad’s special appearance was not properly verified,
and therefore the trial court properly denied it. Rule 120a of the Texas Rules of Civil Procedure,
which governs special appearances, states that a “special appearance shall be made by sworn
motion.” TEX . R. CIV . P. 120a. ISI argues the affidavit attached to Haddad’s special appearance is
defective because it merely verifies the facts in the affidavit, and fails to verify the facts set forth in
the special appearance. See Casino Magic Corp. v. King, 43 S.W.3d 14, 18 (Tex. App.—Dallas
2001, pet. denied) (holding that affidavit was insufficient to constitute verification of special
appearance because it attested only to facts in affidavit, not those in special appearance, and special
appearance contained a number of jurisdictional facts that the affidavit did not).
The Texas Supreme Court has held that an unverified special appearance does not constitute
a general appearance and may be amended any time before the defendant makes a general
appearance. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); see Zamarron v. Shinko
Wire Co., 125 S.W.3d 132, 139 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (validating
filing of amended verification after notice of appeal and appellate briefs filed). It is therefore
axiomatic that any complaint that a special appearance is not verified must be brought to the trial
court’s attention to give the moving party an opportunity to cure the defect. See PCC Sterom, S.A.
v. Yuma Exploration & Prod. Co., No. 01-06-00414-CV, 2006 WL 2864478, at *2 (Tex.
App.—Houston [1st Dist.] Oct. 5, 2006, no pet.) (mem. op.) (holding plaintiff’s failure to object to
unverified amendments to special appearance waived complaint) (citing Fountain v. Burklund, No.
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03-01-00380-CV, 2001 WL 1584011, at *3 (Tex. App.—Austin Dec. 13, 2001, pet. denied) (not
designated for publication) (holding that lack of objection regarding unverified special appearance
waived complaint on appeal)). Failure to object, i.e., bring the error to the trial court’s attention,
waives the complaint on appeal. See id.; see also TEX . R. APP . P. 33.1. ISI failed to raise the
absence of verification in the trial court, raising it for the first time on appeal. Accordingly, we hold
ISI has failed to preserve this complaint.
Moreover, even if we were to address the merits of ISI’s complaint, we would find it to be
without merit. Although Haddad’s affidavit does not specifically verify the facts stated in the special
appearance, she properly verifies all the facts within her affidavit, which are the same as those
contained in the special appearance. When the court in Magic Corp. held that the movant’s affidavit
was insufficient to constitute verification of the special appearance under rule 120a, it did so in part
because the special appearance “included a number of jurisdictional ‘facts’ which the witness failed
to attest to in the affidavit.” 43 S.W.3d at 18. Here, the facts within the special appearance are
repeated in the properly sworn affidavit. Accordingly, we hold the affidavit was sufficient to verify
the special appearance.
Standard of Review
Whether a court has jurisdiction over a nonresident defendant is a question of law subject to
de novo review. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex. 2010) (citing Moki
Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007)); BMC Software Belgium, N.V.
v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). In a de novo review, the appellate court “‘exercises
its own judgment and redetermines each legal issue,’” without any deference to the trial court.
Hotels.com, L.P. v. Canales, 195 S.W.3d 147, 151 (Tex. App.—San Antonio 2006, no pet.) (quoting
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Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)). When the trial court does not issue
findings of fact and conclusions of law in support of its ruling, the appellate court must infer “‘all
facts necessary to support the judgment and supported by the evidence. . . .’” Moki Mac, 221 S.W.3d
at 574 (quoting BMC Software, 83 S.W.3d at 795). However, when, as here, “the appellate record
includes the reporter’s and clerk’s records, these implied findings are not conclusive and may be
challenged for legal and factual sufficiency.” BMC Software, 83 S.W.3d at 795.
Personal Jurisdiction
Texas courts may assert personal jurisdiction over a nonresident if (1) the Texas long-arm
statute authorizes it, and (2) the exercise of jurisdiction does not violate federal and state
constitutional due-process guarantees. Kelly, 2010 WL 143985, at *3; Moki Mac, 221 S.W.3d at
574. The long-arm statute provides a list of acts that may constitute doing business in Texas,
including, as applies here, contracting with a Texas resident where the contract is to be performed
in whole or in part in Texas. TEX . CIV . PRAC. & REM . CODE ANN . § 17.042(1) (Vernon 2008). The
broad “doing business” language of the long-arm statute permits a trial court’s jurisdiction to “‘reach
as far as the federal constitutional requirements of due process will allow.’” Kelly, 2009 WL
143985, at *3 (quoting Moki Mac, 221 S.W.3d at 575). The exercise of personal jurisdiction will
not violate due process “‘when the nonresident defendant has established minimum contacts with
the forum state, and the exercise of jurisdiction comports with traditional notions of fair play and
substantial justice.’” Id. A nonresident defendant establishes minimum contacts when she
purposefully avails herself of the privilege of conducting activities within the state, invoking its
benefits and legal protection. Kelly, 2009 WL 143985, at *3 (citing Retamco Operating, Inc. v.
Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009)). In other words, the defendant’s activities
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must support the conclusion that she could reasonably anticipate being subject to the jurisdiction of
the Texas court system. Walz v. Martinez, No. 04-08-00869-CV, 2009 WL 4153436, at *3 (Tex.
App.—San Antonio Nov. 25, 2009, no pet.) (mem. op.). In making the purposeful availment
determination, courts look to (1) the defendant’s contacts with the forum as opposed to those of the
plaintiff or some third party, (2) whether the contacts are purposeful as opposed to random,
fortuitous, or attenuated, and (3) whether the defendant sought a benefit, advantage, or profit by
availing herself of the jurisdiction. Id. (citing Retamco Operating, 278 S.W.3d at 338-39). “Because
of the unique and onerous burden placed upon a party called upon to defend a suit in a foreign legal
system, the minimum contacts analysis is particularly important when the defendant is from a
different country.” BMC Software, 83 S.W.3d at 795.
Personal jurisdiction exists if a nonresident defendant’s minimum contacts give rise to either
specific jurisdiction or general jurisdiction. BMC Software, 83 S.W.3d at 795-96. Specific
jurisdiction is established if the defendant’s alleged liability arises from or is related to an activity
performed in the forum. Id. at 796; see also TEX . CIV . PRAC. & REM . CODE ANN . § 17.042(1).
General jurisdiction arises when a defendant’s contacts with the forum are continuous and systematic
so that the exercise of jurisdiction is proper even if the cause of action did not arise from or relate
to the defendant’s forum contacts. BMC Software, 83 S.W.3d at 797.
“[S]pecial-appearance jurisprudence dictates that the plaintiff and the defendant bear shifting
burdens of proof in a challenge to personal jurisdiction.” Kelly, 2009 WL 143986, at *3. The
plaintiff bears the initial burden to plead allegations that would bring the nonresident defendant
within the reach of the long-arm statute. Id. If the plaintiff pleads sufficient jurisdictional
allegations, the defendant must then negate all bases of personal jurisdiction alleged by the plaintiff.
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Id. The defendant can negate jurisdiction factually or legally. Id. “Factually, the defendant can
present evidence that [she] has no contacts with Texas, effectively disproving the plaintiff’s
allegations.” Id. at *4. However, the plaintiff may then submit its own evidence, affirming its
allegations; it risks dismissal if it cannot present evidence establishing personal jurisdiction. Id. A
defendant may also defeat personal jurisdiction by showing that even if the plaintiff’s alleged facts
are true, the evidence is legally insufficient, i.e., the defendant’s contacts fall short of purposeful
availment, or the plaintiff’s claims do not arise from the alleged contacts, or traditional notions of
fair play and substantial justice would be offended if jurisdiction over the defendant were exercised
by the trial court. Id.
With regard to jurisdiction, ISI pled Haddad resides in San Antonio, Texas, contracted with
ISI, and had substantial contacts with the state. In support of her special appearance, Haddad
presented her affidavit by which she attempted to negate ISI’s allegations, and establish an absence
of contacts with Texas. In her affidavit, she averred:
•She was born in Mexico, resides in Mexico, and is a citizen of the Republic of Mexico.
•She has never resided nor lived in Texas.
•She does not have a designated agent for service in Texas.
•She is not engaged in any business in Texas, does not maintain a place of business in Texas, and does not have any employees, servants, or agents in Texas.
•She does not receive income from Texas.
•She has not filed any lawsuits in Texas.
•Her only contact with Texas is a vacation home in San Antonio, which she visits “several times a year on a temporary basis.”
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ISI responded by presenting evidence, through the affidavit of ISI’s president, Orozco, in an
attempt to affirm its jurisdictional allegations and avoid dismissal. See id. ISI’s evidence
established:
•ISI and Haddad negotiated the contract in Texas.
•Haddad signed the contract in Texas.
•Haddad deposited payments into ISI’s San Antonio, Texas bank account.
•The system purchased by Haddad was designed in its entirety by ISI in San Antonio, Texas.
•All equipment purchased by Haddad was ordered from ISI’s San Antonio, Texas office.
•The equipment was delivered to and programmed, assembled, and tested in San Antonio, Texas.
•ISI obtained work visas for the three Mexican citizens it hired to install and program Haddad’s system so they could travel to Texas for training.
•Orozco oversaw the work done in Mexico over the Internet, established a special phone line in San Antonio, Texas to simplify oversight and contact, and made six personal visits to Mexico.
•Orozco met with Haddad’s alleged agent, an interior designer, in Texas to review progress on the project.1
•Orozco twice met with Haddad in San Antonio, Texas to discuss the status and progress of the project.
•ISI previously entered into a contract with Haddad for services to be performed on Haddad’s San Antonio, Texas vacation home.
1 … W e note that in her brief Haddad denied she was represented by any agent, specifically the interior designer referred to by O rozco in his affidavit and in testimony at the special appearance hearing. However, Haddad did not present any evidence to the trial court with regard to this issue, and there is nothing to support her contention in the record.
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At the special appearance hearing, Orozco testified he met with Haddad in San Antonio three or four
times, but clarified that two of those meetings concerned work on her San Antonio vacation home,
not work on the Mexico condominium that forms the basis of ISI’s pending suit. Orozco also stated
Haddad has a son and daughter-in-law in San Antonio, but could not say whether there were any
grandchildren in San Antonio.
Specific Jurisdiction
Haddad first contends the evidence is legally and factually insufficient to establish specific
jurisdiction, and therefore, the trial court erred in denying her special appearance. Haddad argues
that even if ISI’s allegations regarding her contacts with Texas are true, the contacts fall short of
purposeful availment, do not arise from the alleged contacts, and traditional notions of fair play and
substantial justice would be offended if the trial court exercised jurisdiction over Haddad. See id.
With regard to specific jurisdiction, we have already noted it is not enough that Haddad may
have purposefully availed herself of the benefits and protection of the forum; rather, ISI’s causes of
action must arise from or be related to Haddad’s contacts or activities. See id., at *3 (citing Retamco
Operating, 278 S.W.3d at 338). The focus is on Haddad’s actions and choices to enter the forum
and conduct business. See Kelly, 2009 WL 143985, at *5. Only her contacts with the forum are
relevant; ISI’s activities or those of a third person are irrelevant. See Moki Mac, 221 S.W.3d at 575.
Moreover, “there must be a substantial connection between [Haddad’s forum] contacts and the
operative facts of the litigation.” Id. at 585. In making these determinations, we look only to
Haddad’s contacts with Texas; ISI’s contacts or the contacts of third persons are irrelevant. See id.
at 575.
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ISI contends the contacts established by its evidence are sufficient minimum contacts to
establish the existence of specific jurisdiction, and given these contacts traditional notions of fair
play and substantial justice are not offended. We agree.
We recognize that several contacts alleged by ISI cannot be considered in determining
whether Haddad purposefully availed herself of the privilege of conducting activities in Texas
because they are ISI’s contacts with Texas, not Haddad’s. See id.; see also, e.g., Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (focusing jurisdictional inquiry on defendant’s presence in,
or contact with, forum). These include: (1) the design of the system, (2) the purchase of equipment,
(3) the delivery, programming, and assembly of the equipment, (4) procurement of work visas for
Mexican citizens for purposes of training them in Texas, (5) oversight of the work via the Internet,
(6) installation of a special phone line, and (7) numerous visits to Mexico by Orozco. These were
actions taken by ISI and establish ISI’s relationship to the forum, but are wholly unrelated to any
contact by Haddad, and therefore, cannot be considered. See id. Additionally, there are other
contacts we cannot consider because there is no “substantial connection” between the contacts and
ISI’s claims. See Moki Mac, 221 S.W.3d at 585. These “contacts” include the fact that Haddad has
family in Texas, owns a vacation home in Texas, and Haddad and ISI twice met regarding a previous
contract between the parties related to services for Haddad’s vacation home.
When these alleged contacts are disregarded, we are left with the following: the contract was
negotiated and signed in Texas, Haddad deposited payments into ISI’s Texas bank account, Haddad
twice met with Orozco in Texas regarding the work on her condominium, and Orozco twice met with
Haddad’s alleged agent in Texas concerning the project. The question is whether these contacts,
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when considered together, are sufficient to establish purposeful availment, supporting the conclusion
that Haddad should have anticipated being haled into a Texas court.
We agree with Haddad that the mere negotiation of, and entry into, a contract with a Texas
resident is by itself insufficient to establish minimum contacts for the purpose of bringing a
nonresident into a Texas court. See IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597-98 (Tex. 2007)
(holding contracting with and accepting account-initiation fee from Texas resident for services
performed in California are insufficient to satisfy minimum contacts test; contract alone does not
constitute sufficient contact for due process purposes); Blair Commc’ns, Inc. v. SES Survey Equip.
Servs., Inc., 80 S.W.3d 723, 730 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that merely
contracting with Texas resident does not satisfy minimum contacts requirement). We also agree
Haddad’s deposit of payments into ISI’s Texas bank account, if considered in isolation, is
insufficient to establish purposeful availment. See Blair Commc’n, Inc., 80 S.W.3d at 730 (holding
that jurisdiction is not justified by fact that contract is payable in Texas). However, when these
contacts are coupled with Haddad’s remaining contacts–two visits by Haddad and two visits by an
alleged agent to discuss the project and its progression–we hold there are sufficient contacts to show
Haddad purposefully availed herself of the privilege of conducting activities in Texas, seeking a
benefit from her contract with ISI, a Texas corporation. See Walz, 2009 WL 4153436, at *3 (citing
Retamco Operating, 278 S.W.3d at 338-39). Given that Haddad negotiated and contracted in Texas
with a Texas corporation, performed part of the contract in the forum by depositing funds into ISI’s
bank account, met and conferred with Orozco at least twice in the forum, and sent an agent to discuss
the project with Orozco on two occasions, she must have reasonably anticipated being subject to the
jurisdiction of the Texas court system. See Walz, 2009 WL 4153436, at *3. Although the contacts
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are not extensive, they are far more than merely random or fortuitous so as to deprive Texas of
jurisdiction over Haddad. To draw Haddad into a Texas court on the basis of these contacts, would
not offend traditional notions of fair play and substantial justice. See Kelly, 2009 WL 143985, at *3
(citing Moki Mac, 221 S.W.3d at 575). Accordingly, we overrule Haddad’s first and third issues,
and hold the trial court did not err in concluding it had specific jurisdiction over Haddad.
General Jurisdiction
Haddad also contends the evidence is legally and factually insufficient to support a finding
of general jurisdiction. She therefore asserts the trial court erred in denying her special appearance.
Because we have determined that the specific jurisdiction exists based on the long-arm statute and
Haddad’s minimum contacts with the forum, we need not determine whether general jurisdiction
exists. We therefore need not consider Haddad’s second issue.
CONCLUSION
We hold Haddad failed to negate specific jurisdiction. The contacts alleged and proved by
ISI met the minimum contact requirements for specific jurisdiction. Haling Haddad into a Texas
court based on the contacts in this case would not offend due process and its notions of fair play and
substantial justice. Accordingly, we affirm the trial court’s order denying Haddad’s special
appearance.
Marialyn Barnard, Justice
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