Commonwealth General Corp. v. York

OPINION Opinion by Justice YÁÑEZ. This is an interlocutory appeal from the denial of a nonresident corporation’s special appearance. The trial court found that it had personal jurisdiction over the defendant and denied the special appearance. Appellant Commonwealth General Corporation (Commonwealth) brought this accelerated interlocutory appeal, contending that the evidence presented was legally and factually insufficient to support the trial court’s exercise of personal jurisdiction. Because we conclude that Commonwealth established sufficient minimum contacts to support the exercise of specific jurisdiction, we affirm. Background The underlying case related to this interlocutory action is a class action insurance dispute. Appellees, the plaintiffs below, claim that they have been wrongfully denied insurance benefits after being injured in various accidents. The plaintiffs had previously purchased accidental death and dismemberment insurance from defendant J.C. Penney Life Insurance Company (JCP Life), a corporation headquartered and incorporated in Texas. 1 After their *844 respective injuries, the plaintiffs submitted claims to JCP Life and were denied benefits. On June 18, 2001, Commonwealth, a Delaware corporation headquartered in Kentucky, purchased the stock of JCP Life from JCP Life’s parent company, J.C. Penney Co., Inc. The stock purchase agreement also provided that Commonwealth assume twenty-two active lease contracts. Commonwealth is a holding company that owns multiple subsidiaries that engage in different types of businesses in several states, including Texas. Commonwealth does not itself have any offices, employees or agents in Texas, maintains no bank accounts in Texas, has never been licensed to sell or issue insurance in Texas, and has never been authorized to do business in Texas. Commonwealth and J.C. Penney Co., Inc., when executing the stock sale, also simultaneously entered into related marketing and licensing agreements. After the stock purchase, the plaintiffs collectively filed suit against JCP Life and a variety of other defendants, including, among others, J.C. Penney Company, Inc., Commonwealth, and Commonwealth’s corporate parent, AEGON, N.V. The plaintiffs are an uncertified class of claimants who have had their JCP Life benefits denied from June 28, 1997 forward. The suit is based on a variety of claims, including deceptive trade practices, insurance code violations, fraud, negligent misrepresentation, breach of contract, unjust enrichment, and gross negligence. In Texas, a party may contest personal jurisdiction by filing a special appearance. Tex.R. Civ. P. 120a(l). Accordingly, Commonwealth filed a special appearance to contest jurisdiction, which the trial court denied. The trial court then filed its findings of fact and conclusions of law, and Commonwealth appealed the trial court’s interlocutory order to' this Court. Section 51.014 of the Texas Civil Practice and Remedies Code permits this Court to review an interlocutory appeal from a trial court’s ruling on a special appearance. Tex. Civ. PRAC. & Rem.Code Ann. § 51.014 (Vernon 2002). The Standard of Review The plaintiff has the initial burden of pleading enough facts to bring the nonresident defendant within the provision of the long-arm statute. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 793 (Téx.2002). The specially appearing defendant then has the burden to negate all the alleged bases of personal jurisdiction. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig.proceeding); Zac Smith & Co. v. Otis Elevator, 734 S.W.2d 662, 664 (Tex.1987). If a tidal court enters an order denying a special appearance and then issues findings of fact and conclusions of law, the appellant may challenge these factual findings and legal conclusions. BMC Software, 83 S.W.3d at 794. This Court then reviews the factual findings for both legal and factual sufficiency, Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996), and the conclusions of law de novo. BMC Software, 83 S.W.3d at 794. Factual sufficiency is reviewed by considering all of the evidence that was before the trial court. Ortiz, 917 S.W.2d at 772; see also Valsangiacomo v. Americana Juice Import, Inc., 35 S.W.3d 201, 205 (Tex.App.-Corpus Christi 2000, pet. dism’d w.o.j.). The findings of the trial court must be upheld under this review unless they are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Ortiz, 917 S.W.2d *845 at 772. For legal sufficiency points, we consider only the evidence that supports the finding and we disregard all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). If there is more than a scintilla of evidence in the record which supports the trial court’s findings, those findings will be upheld. BMC Software, 83 S.W.3d at 794. Applicable Law The Texas long-arm statute allows Texas courts to exercise jurisdiction over foreign defendants who are “doing business” within the state. Tex Civ. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997). The “doing business” requirement is broad, limited only by federal due process guarantees. Shapolsky v. Brewton, 56 S.W.3d 120, 129 (TexApp.-Houston [14th Dist.] 2001, pet. denied). Thus, the exercise of personal jurisdiction must comport with federal due process limitations to satisfy the long-arm statute. Id. The constitutional due process requirements are satisfied when two conditions are met: (1) the defendant has established minimum contacts with Texas, and (2) the exercise of jurisdiction would not violate traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C. 815 S.W.2d 223, 230 (Tex.1991). Minimum contacts are established when there is a substantial connection between the nonresident defendant and Texas as a result of conduct or activity that the nonresident defendant has purposefully directed toward Texas. Guardian Royal, 815 S.W.2d at 230. These contacts, whether they consist of direct acts within the forum or conduct outside of the forum, must be such that the defendant can anticipate being haled into a Texas court as a result. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). A nonresident defendant cannot be subject to Texas jurisdiction based upon mere random, fortuitous or attenuated contacts. CSR Ltd., 925 S.W.2d at 595. However, a nonresident that purposefully avails itself of the privileges and benefits of conducting business in Texas is amenable to suit in Texas. EMI Music Mexico, S.A. de C.V. v. Rodriguez, 97 S.W.3d 847, 854 (Tex. App.-Corpus Christi 2003, no pet.). The defendant’s minimum contacts with Texas must give rise to either specific or general personal jurisdiction. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); BMC Software Belgium, 83 S.W.3d at 795. Specific jurisdiction is established when the defendant’s alleged liability arises out of, or is related to, an activity conducted within the forum. Guardian Royal, 815 S.W.2d at 228. General jurisdiction is established when the defendant’s contacts in a forum are continuous and systematic, so much so that it becomes fair to exercise personal jurisdiction over the defendant even when the immediate cause of action did not relate in any way to the defendant’s activities within Texas. Id. Should we find that the nonresident defendant has purposefully established minimum contacts with the forum state, we must complete the due process analysis and determine if the exercise of jurisdiction over this defendant comports with the traditional notions of fair play and substantial justice. Id. In making this determination, we consider and weigh: (1) the burden on the nonresident defendant; (2) Texas’s interest in adjudicating the dispute; (3) the plaintiffs interest in getting convenient and effective relief; (4) the interstate judicial system’s interest in ob *846 taining the most effective resolution of the controversy; and (5) the states’ shared interest in furthering fundamental substantive social policies. Id. This fair play and substantial justice analysis is separate and distinct from the minimum contacts analysis but is contingent upon a finding that minimum contacts have been purposefully established. Id. Specific Jurisdiction A. Test for Jurisdiction In twenty-five findings of fact and seventeen conclusions of law, the trial court concluded that it had both specific and general jurisdiction over Commonwealth. We first address Commonwealth’s challenge to the exercise of specific jurisdiction. 2 Where specific jurisdiction is asserted, the minimum contacts analysis is much narrower than that of general jurisdiction; the focus stays on the relationship between the defendant, the forum, and the acts or conduct that triggered the litigation. Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. 1868; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990); EMI Music Mexico, 97 S.W.3d at 855. There must be a substantial connection between the plaintiffs’ cause of action and the transaction the defendant purposefully consummated in the state. EMI Music Mexico, 97 S.W.3d at 855; Ahadi v. Ahadi 61 S.W.3d 714, 719 (Tex App.-Corpus Christi 2001, pet. denied). This “substantial connection” requirement means that the defendant’s contacts with both the litigation and the forum must be meaningful, not “random, fortuitous, or attenuated.” Ahadi, 61 S.W.3d at 719. An element of foreseeability is also implicit in the “substantial connection” requirement; a nonresident defendant should be able to reasonably predict that it may be subject to personal jurisdiction in the forum state. Id. at 719-20. B. Undisputed Findings and Conclusions The following findings of fact and conclusions of law were not disputed by either party on appeal, and therefore may be considered as evidence by this Court: Findings of Fact: 5. During the fall of the year 2000, Mr. Beardsworth [Commonwealth’s vice president and controller], acting on behalf of Commonwealth, took trips to Plano, Texas and Richardson, Texas, to observe and review J.C. Penney’s financial information. 6. Mr. Beardsworth, on behalf of Commonwealth, hired the New York law firm of LeBoeuf Lamb, who sent lawyers to Texas to assist in the purchase transaction. 7. Mr. Beardsworth, on behalf on Commonwealth, took two single day trips to Dallas, Texas, to negotiate the purchase in early 2001. He took another trip for three days in March of 2001 to negotiate the purchase. He also attended the closing of the transaction in June of 2001. 8. Commonwealth also sent Craig Vermie and several individuals from its operating unit who knew about the operations of the busi *847 ness to Texas to assist in the purchase transaction. [[Image here]] 10. The Stock Purchase Agreement required Commonwealth to pay approximately $1,300,000,000 to purchase various assets of J.C. Penney. 11. Commonwealth paid $1,300,000,000 to J.C. Penney by means of a wire transfer. [[Image here]] 17. The Stock Purchase Agreement required Commonwealth to assume twenty-two (22) active lease agreements. The leases were for computers and other office equipment used in the insurance business and were all to be performed in Texas. The total dollar amount of these twenty-two (22) leases is $3,284,202.20. 18. On at least one other occasion, Commonwealth employees had come to Texas to contemplate the purchase of another insurance company. 19. Commonwealth employees have come to corporate meetings in Dallas, Texas. [[Image here]] 21. Commonwealth owns or controls business entities in twenty-two states and the District of Columbia. 22. Commonwealth owns three entities, Ammest Realty Corporation, Am-pac, Inc. and NCOAA Management Company, that operate in Texas. 23. Commonwealth owns all of the stock of J.C. Penney Life Insurance Company, now known as Sto-nebridge Insurance Company, whose principal place of business is Plano, Texas. 24.Commonwealth is represented in this litigation by the same counsel as the other Defendants who have not contested personal jurisdiction. Conclusions of Law: [[Image here]] 6. Commonwealth entered into contracts with Texas residents to be performed in Texas by assuming the twenty-two leases for computers and office equipment. Thus, it is uncontested that Commonwealth purposefully entered Texas and transacted business by negotiating and executing the stock sale. Through the acts described in these findings, Commonwealth became the sole owner of the company at issue in the underlying litigation. As the sole shareholder, Commonwealth effectively exercised control over JCP Life via its board of directors. By the terms of the stock purchase agreement, Commonwealth assumed various liabilities and obligations of JCP Life, including the assumption of leases for office equipment used for the insurance business. By engaging in such activities, Commonwealth should have reasonably foreseen being haled into Texas courts in connection with the ongoing business of JCP Life. See Puri v. Mansukhani, 973 S.W.2d 701, 710 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (majority shareholder who directed corporate activities in Texas subject to Texas jurisdiction); see also Ahadi, 61 S.W.3d at 720 (exercising specific jurisdiction over party who entered into a contract with foreseeable economic effects in Texas); Tex. Commerce Bank Nat’l Assoc, v. Interpol '80 Limited Partnership, 703 S.W.2d 765, 772 (Tex. App.-Corpus Christi 1985, no writ) (exercising jurisdiction over corporation who entered into contract in Texas and purchased related goods and services to be delivered in Texas). One clause of the *848 contract, for example, bound Commonwealth to defend litigation in Texas arising from JCP Life’s activities and to pay up to $615 million in indemnification if necessary. As these findings and conclusions were undisputed and contrary evidence was not raised, we find the evidence to be both legally and factually sufficient to establish a substantial connection between Commonwealth’s purchase of JCP Life and the plaintiffs’ cause of action. Accordingly, we hold that the undisputed evidence alone is legally and factually sufficient to support the exercise of specific jurisdiction. C. Disputed Findings and Conclusions Commonwealth contests on the grounds of factual and legal insufficiency the trial court’s findings of fact numbered 9, 12, 13, 14, and 15, and the related conclusions of law 1, 2, 3, 4 and 5, which describe the various agreements related to the stock purchase between Commonwealth and J.C. Penney. 3 Specifically, Commonwealth disputes the portion of each of the findings and conclusions that describes the agreements as “to be performed in part in Texas,” and claims that the choice-of-law provisions in the stock purchase agreement, marketing services agreement and license agreement prove that these contracts are governed by Delaware law. We begin by addressing Commonwealth’s assertion that the contracts are governed by Delaware law, an assertion that relates to findings of fact numbered 9, 12, 13, 14 and 15. We first review for factual sufficiency the trial court’s findings *849 of fact by fully considering all the evidence. Our review of the evidence initially indicates that the letter agreement of March 7, 2001 referred to in finding of fact 14 and conclusion of law 4 does not include a choice-of-law analysis. Thus, there is no express language in this particular document that would dictate its terms be governed by Delaware law. The choice-of-law clauses included in the other contested agreements indicate that disputes between the purchaser and seller related to the agreement are to be governed by Delaware law. These clauses, while designating Delaware law as controlling over certain disputes, do not apply to the place of performance nor even to the place were litigation related to contractual disputes should occur. Such litigation could be brought in any state that has jurisdiction. The clauses also clearly do not extend to any litigation that is not solely between the purchaser and the seller, and control only a narrow portion of Commonwealth’s corporate relationship with JCP Life. Thus, the choice-of-law clauses are insufficient evidence to establish that the agreements are governed by Delaware law, especially for purposes of this litigation. Commonwealth failed to provide any other evidence in support of its claim that only Delaware law applies. We hold, therefore, that the trial court’s findings of fact numbered 9, 12, 13, 14 and 15 are not against the great weight and preponderance of the evidence and we decline to overturn them as factually insufficient. We note further that there is more than the requisite scintilla of evidence supporting the trial court’s findings, including the agreements themselves. Accordingly, we hold that the findings of fact were also legally sufficient. We next review Commonwealth’s assertion that the contracts were not to be performed at least in part in Texas, an argument which relates to the trial court’s conclusions of law numbered 1, 2, 3, 4, and 5. Conclusions of law are reviewed de novo on appeal. This Court reviews such conclusions to determine their legal correctness. BMC Software, 83 S.W.3d at 794. Each contested conclusion of law essentially states that “Commonwealth entered into a contract with a Texas resident to be performed in Texas.” Our review of the contracts indicates that the agreements themselves do not designate a specific place of performance. Looking to the primary purposes underlying the agreements, we observe that the stock purchase and related agreements were intended to allow Commonwealth to wholly own the stock and to control the marketing and licensing activities of a company located in Texas. The contracts themselves were negotiated and signed in Texas, indicating that their execution at least was performed in Texas. The contracts were performed at least in part in Texas, as Commonwealth’s ownership interest has been exerted in Texas; the decisions Commonwealth makes regarding the business activities of JCP Life will be manifested and felt in Texas. See Tex. Commerce Bank, 703 S.W.2d at 773-74. Thus we do not find that the trial court erred in declaring as a conclusion of law that the contracts were to be performed in Texas, and hold that the evidence is legally and factually sufficient to support conclusions of law numbered 1, 2, 3, 4 and 5. Commonwealth also disputes the trial court’s finding of fact numbered 20, which states, “[t]he lawsuit brought by Plaintiffs involves the business purchased by Commonwealth in the Stock Purchase Agreement, the Marketing Services Agreement and the License Agreement,” and the related conclusion of law numbered 11, which states, “[pjlaintiffs’ causes of action arise from or relate to Common *850 wealth’s contacts in the State of Texas.” Commonwealth disputes both the finding and conclusion on the grounds that JCP Life denied appellees’ claims for benefits years before Commonwealth purchased JCP Life and because Commonwealth did not solicit, sell, issue, approve or deny appellees’ insurance certificates. Again, we first review the trial court’s factual findings for factual sufficiency by weighing all available evidence. As the record demonstrates, the class is an uncer-tified group of JCP Life customers whose claims were denied at various times after 1997. The class may therefore include parties whose claims were denied both before and after the date of the sale to Commonwealth. Also, while Commonwealth did not sell or issue any insurance certificates directly, it does exercise control as owner over the activities of JCP Life. Through its purchase of stock, Commonwealth created a continuing relationship with JCP Life and assumed continuing obligations for the purpose of earning a profit from its purchasing activity in Texas. See P.V.F., Inc. v. Pro Metals, Inc., 60 S.W.3d 320, 327 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We therefore find that the trial court’s finding of fact numbered 20 is not factually insufficient on the grounds asserted by Commonwealth. This same evidence from the record also establishes more than a scintilla of evidence in support of the finding, and so we also find it to be legally sufficient. We review de novo the related conclusion of law number 11, which reads, “plaintiffs [sic] cause of action arise from or relate to Commonwealth’s contacts in the state of Texas.” It is clear from our conclusion above that plaintiffs’ causes of action do relate to Commonwealth’s contacts with the state, as both have to do with the business activities of JCP Life in Texas. We emphasize that our conclusion here does not assert or imply any position on the ultimate question of liability. As this is a review of a plea to the jurisdiction, we are concerned only with the extent of Commonwealth’s contacts with the jurisdiction, and do not address whether such contacts may also give rise to liability. See Mort Keshin & Co. v. Houston Chronicle Publ’g Co., 992 S.W.2d 642, 648 (Tex. App.-Houston [14th Dist.] 1999, no pet.); see also Zac Smith, 734 S.W.2d at 666. With this caveat in mind, we hold that the evidence is legally and factually sufficient to support finding of fact 20 and conclusion of law 11. Due Process We have determined that Commonwealth purposefully established minimum contacts with Texas for the purposes of this litigation. We now look to due process to determine if the exercise of jurisdiction over this party comports with fair play and substantial justice. Jackson v. Kincaid, 122 S.W.3d 440, 447 (Tex.App.Corpus Christi 2003, no pet.). To accomplish this, we evaluate (1) the burden on the nonresident; (2) Texas’ interest in adjudicating the dispute; (3) the plaintiffs’ interest in getting effective relief; (4) the interstate judicial system’s interest in obtaining the most effective resolution; and (5) the states’ shared interest in furthering substantive social policies. Guardian Royal, 815 S.W.2d at 232. When conducting this inquiry, we must bear in mind that only in rare cases will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the state. Id. at 231; EMI Music Mexico, 97 S.W.3d at 859-60. We note initially that the burden on Commonwealth to defend itself in Texas is slight. Commonwealth owns several sub *851 sidiary businesses in Texas, conducts business in several states, and has repeatedly sent its executives to Texas in order to undertake the stock purchase agreement involved here. Commonwealth failed to establish that defense of this litigation would present an unfair burden upon it. Conversely, Texas has a special interest in regulating insurance practices. See, e.g., Guardian Royal, 815 S.W.2d at 229. In Guardian Royal, the Texas Supreme Court found that Texas’s interest in the regulation of the insurance industry is “an important consideration in deciding whether the exercise of jurisdiction is reasonable and that a state’s regulatory interest may establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.” Id. The plaintiffs’ interest in getting effective relief in Texas where these policies were sold is significant. These factors alone are sufficient to justify this Court’s exercise of jurisdiction in keeping with the requirements of due process. Commonwealth has failed to present evidence that the interstate judicial system’s interest in efficient litigation and the shared social polices of states would compel a different result. See id., at 232. Therefore, the trial court’s finding of personal jurisdiction over Commonwealth is in keeping with the limitations of due process. Conclusion A nonresident defendant must negate all bases of personal jurisdiction to prevail in a special appearance. CSR Ltd., 925 S.W.2d at 596, Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). Commonwealth failed to effectively demonstrate that it lacked minimum contacts adequate to establish specific jurisdiction. We hold that the evidence is legally and factually sufficient to support the exercise of specific jurisdiction over Commonwealth. Accordingly, we overrule this jurisdictional challenge and AFFIRM the trial court’s denial of Commonwealth’s special appearance. Footnotes [1] JCP Life is now known as Stonebridge Life Insurance Company and remains headquar *844 tered in Plano, Texas. [2] The trial court found that it had both general and specific jurisdiction over Commonwealth. However, because we conclude that Commonwealth’s contacts are sufficient to support specific jurisdiction, we do not address the trial court's finding of general jurisdiction. See P.V.F., Inc. v. Pro Metals, Inc., 60 S.W.3d 320, 324 n. 7 (Tex.App.-Houston [14th Dist.j 2001, pet. denied). [3] Findings of Fact: 9. In a document dated as of March 7, 2001, a Stock Purchase Agreement among Commonwealth General Corporation, J.C. Penney Company, Inc. and J.C. Penney Direct Marketing Services, Inc. was entered into. This document was signed in Dallas, Texas, by Mr. Beardsworth on behalf of Commonwealth and was to be performed in part in Texas. [[Image here]] 12. In a document dated as of June 18, 2001, a Marketing Services Agreement among Commonwealth General Corporation, J.C. Penney Direct Marketing Services, Inc. and J.C. Penney Company, Inc. was entered into. This document was signed in Dallas, Texas, by Mr. Beardsworth on behalf of Commonwealth and was to be performed in part in Texas. 13. In a document dated as of June 18, 2001, a License Agreement between Commonwealth General Corporation and J.C. Penney Company, Inc. was entered into. This document was signed in Dallas, Texas, by Mr. Beardsworth on behalf of Commonwealth and was to be performed in part in Texas. 14. On March 7, 2001, a letter agreement regarding the License Agreement was entered into between Commonwealth General Corporation and J.C. Penney Company, Inc. This document was signed in Dallas, Texas by Mr. Beardsworth on behalf of Commonwealth. 15.In a document dated as of June 18, 2001, an Assignment and Guarantee Agreement was entered into between Commonwealth General Corporation, J.C. Penney Life Insurance Company, and J.C. Penney, Inc. This document was signed in Dallas, Texas, by Mr. Beardsworth on behalf of Commonwealth. Conclusions of Law: 1. Commonwealth entered into a contract with a Texas resident to be performed in Texas by entering into the Stock Purchase Agreement. 2. Commonwealth entered into a contract with a Texas resident to be performed in Texas by entering into the License Agreement. 3. Commonwealth entered into a contract with a Texas resident to be performed in Texas by entering into the Marketing Agreement. 4. Commonwealth entered into a contract with a Texas resident to be performed in Texas by signing the letter agreement, regarding the assignment of the license agreement, dated March 7, 2001. 5. Commonwealth entered into a contract with a Texas resident to be performed in Texas by entering into the Assignment and Guarantee Agreement.