Shell Oil Compania Argentina De Petroleo S.A. v. Reef Exploration, Inc.

Opinion issued August 29, 2002 In The Court of Appeals For The First District of Texas NO. 01-01-01008-CV ____________ SHELL COMPAÑIA ARGENTINA DE PETROLEO, S.A., Appellant V. REEF EXPLORATION, INC., Appellee On Appeal from the 295th District Court Harris County, Texas Trial Court Cause No. 2000-30800 O P I N I O N This is an interlocutory, accelerated appeal from the trial court's denial of a special appearance filed by appellant, Shell Compañia Argentina De Petroleo, S.A. (Shell CAPSA). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 2002). In 20 issues, Shell CAPSA contends that the trial court erred in denying its special appearance. In a cross-issue, appellee, Reef Exploration, Inc. (Reef), contends that the trial court erred in not admitting certain documents offered at the motion for rehearing related to Shell CAPSA's contacts in Texas. We reverse and render judgment dismissing the claims against Shell CAPSA without prejudice. Background This case involves the sale of stock in a company that had rights to explore and produce hydrocarbons in Argentina. On February 28, 1995, Reef entered into a Participation Agreement with Hinton Production Company (Hinton), W.B. Hinton Drilling Co., Inc., Hinton Argentina, S.A., and Pet-JA, S.A. (Pet-JA), (1) to obtain a 100% working interest for the exploration and subsequent production of hydrocarbons on the Rio Colorado Block in Argentina. Reef, a Texas corporation, assigned its interest to Reef Argentina, S.A. (RASA), an Argentine subsidiary of Reef. All of the revenue interest was transferred to RASA. In October 1996, Compañia General de Combustibles, S.A. (CGC), an Argentine sociedad anonima, (2) entered into a joint venture with RASA in the Rio Colorado Block. In November 1997, CGC and RASA discussed bringing in additional parties to bear the substantial cost of developing the property. In December 1997, CGC informed Reef and RASA that Shell CAPSA was interested in the Rio Colorado Block. The parties decided to solicit offers from all interested companies. On March 23, 1998, Shell CAPSA submitted its initial, non-binding bid to CGC's offices in Buenos Aires. The bid was for $200 million, and Shell CAPSA offered to bear 100% of the costs and expenses incurred by exploration for a 55% participating interest. On March 31, 1998, CGC informed Reef that only three companies, not including Shell CAPSA, had submitted bids. CGC did not inform Reef about Shell CAPSA's initial $200 million bid. On May 29, 1998, Shell CAPSA submitted its final offer for a 55% participating interest in the Rio Colorado Block. Shell CAPSA invited both CGC and RASA to engage in negotiations. The bid for $186 million was open until midnight of June 15, 1998, and it was to be governed by the laws of Argentina. On the same day, CGC represented to Reef that the three potential bidders had all declined to submit a final bid. Also on the same day, CGC offered to purchase RASA's participating interest in the Rio Colorado Block for $37.25 million. On June 4, 1998, Reef counter-offered to sell the participating interest for $48.5 million and promised not to solicit any additional offers provided the agreements were executed by June 21, 1998. CGC agreed to the counter-offer. Reef maintains that it agreed to the sale based on CGC's representations that there were no other submitted offers. On June 30, 1998, CGC and Shell CAPSA entered into a confidentiality agreement for the possible purchase of 100% of the common shares of RASA. This confidentiality agreement prohibited Shell CAPSA from disclosing any information related to the RASA transaction. The confidentiality agreement permitted Shell CAPSA to disclose information with CGC's consent only when the information became "publicly available," the information was disclosed to an "affiliated company," or the information was disclosed to "persons who have a clear need to know in order to evaluate the Company [RASA]." Shell CAPSA was not permitted to disclose information to RASA without CGC's consent because RASA was not an "affiliated company" and did not fall under any other category that would permit disclosure under the confidentiality agreement. During July and August 1998, Shell CAPSA performed most of its due diligence in Buenos Aires, Argentina, employing Argentine legal counsel. Shell CAPSA also retained counsel in New York and participated in a conference call with its New York lawyers and a Texas lawyer, representing CGC's parent company, Sociedad Comercial del Plata, S.A. The parties to the conference call discussed matters related to the transaction. In August 1998, CGC and Reef substituted CGC's subsidiary, CGC Internacional Corp. (CGC-IC), a Panamanian corporation, as the purchaser of the RASA stock. On August 5, 1998, CGC-IC and Shell CAPSA executed a stock purchase agreement. The agreement required that CGC-IC provide Shell CAPSA with affidavits from Hinton that it had no claims or rights against RASA. The affidavits were required to be certified by a notary public having jurisdiction in the domicile of either company. The statements obtained from Hinton were notarized in Texas. The agreement also required that CGC-IC provide Shell CAPSA with a final order issued by a bankruptcy court in Texas permitting Hinton to assign its interest in the Rio Colorado Block to RASA and proof that there were no pending matters in the Hinton bankruptcy that could have "any detrimental effect" on RASA. On August 14, 1998, CGC-IC exercised its option to purchase Reef's shares in RASA. Reef transferred the shares and was paid the agreed price of $48.5 million. On August 20, 1998, CGC informed Reef that Shell CAPSA had purchased RASA's stock from CGC-IC for $186 million. On August 24, 1998, CGC-IC and Shell CAPSA completed the transaction. Reef sued Shell CAPSA for fraud. Reef contended that CGC made misrepresentations to Reef, inducing Reef to sell its stock in RASA for $48.5 million, and then CGC-IC sold its stock to Shell CAPSA for $186 million. Shell CAPSA contended that it was unaware of any fraud and that it purchased the shares from CGC-IC with the understanding that Reef had approved such a sale. In its original petition, Reef alleged that Shell CAPSA had done and was continuing to do business in Texas. Shell CAPSA filed a special appearance, claiming that the trial court had no personal jurisdiction over it. The trial court denied the special appearance, and this interlocutory, accelerated appeal ensued. Standard of Review The plaintiff bears the initial burden of pleading sufficient allegations to bring a non-resident defendant within the provisions of the Texas long-arm statute, but the defendant must negate all possible grounds for personal jurisdiction. BMC Software v. Marchand, No. 00-1019, 45 Tex. Sup. Ct. J. 930, 931 (Jun. 27, 2002). (3) Existence of personal jurisdiction is a question of law, but that determination must sometimes be preceded by the resolution of underlying factual disputes. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.--Houston [1st Dist.] 2000, pet. dism'd w.o.j.). If a trial court makes findings of fact and conclusions of law, we may review the fact findings for legal and factual sufficiency. Id. If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. We reverse the ruling for factual insufficiency of the evidence only if the ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 794 (Tex. App.--Houston [1st Dist.] 2000, no pet.). We review the trial court's legal conclusions based on the finding of facts to determine their correctness. BMC Software, 45 Tex. Sup. Ct. J. at 932. Jurisdiction A court may assert personal jurisdiction over a non-resident defendant only if the requirements of both the United States Constitution and the Texas long-arm statute are satisfied. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 407, 414, 104 S. Ct. 1868, 1872 (1984); CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). The Texas long-arm statute allows a Texas court to exercise personal jurisdiction over a non-resident defendant who does business in Texas and reaches as far as the federal and state constitutional guarantees of due process allow. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997); Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 802 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). The requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations. CSR, 925 S.W.2d at 594. A state can exert personal jurisdiction over a non-resident defendant only if the defendant has some minimum, purposeful contacts with the state, and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998). A non-resident who has purposely availed himself of the privileges and benefits of conducting business in Texas has sufficient contacts with the forum to confer personal jurisdiction. CSR, 925 S.W.2d at 594; Garner, 966 S.W.2d at 803. However, a defendant should not be subject to the jurisdiction of a Texas court based upon random, fortuitous, or attenuated contacts. CSR, 925 S.W.2d at 595. A non-resident defendant must have purposely established such minimum contacts with the forum that it could reasonably anticipate being sued there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475; 105 S. Ct. 2174, 2183 (1985). Evidence of Contacts with Texas Both in the trial court and on appeal, the parties have treated this case as one involving specific jurisdiction. (4) The minimum contacts analysis for specific jurisdiction focuses on the relationship between the defendant, the forum, and the litigation. Memorial Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex. App.--Houston [14th Dist.] 1992, no writ). Specific jurisdiction is established if the defendant's alleged liability arises from, or is related to, an activity conducted within the forum. Guardian Royal Exch. Assurance Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex. 1991). The contacts must be purposely directed at the forum and must have a "substantial connection" that results in the alleged injuries. (5) Id. at 226 (citing Burger King, 471 U.S. at 462, 105 S. Ct. at 2182); see also Brown v. Gen. Brick Sales Co., Inc., 39 S.W.3d 291, 294 (Tex. App.--Fort Worth 2001, no pet.); Memorial Hosp. Sys., 835 S.W.2d at 650. Although not a separate component, foreseeability is an important consideration in determining whether a non-resident's ties to a forum create a substantial connection. See MTIS Ltd. v. Corporacion Interamericana de Entretenemiento S.A. de C.V., 64 S.W.3d 62, 67 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Merely contracting with a Texas corporation does not satisfy the minimum contacts requirement. TeleVentures, Inc. v. Int'l Game Tech., 12 S.W.3d 900, 908 (Tex. App.--Austin 2000, pet. denied). Prior negotiations, contemplated future consequences, the terms of a contract, and the parties' course of dealing must be considered in determining whether the defendant purposely established minimum contacts within the forum. Id. In its first through sixteenth issues, Shell CAPSA contends the trial court erred in finding the existence of specific jurisdiction. In its first, second, third, fifth, fourteenth, and fifteenth issues, Shell CAPSA broadly challenges the denial of the special appearance on the grounds that it offends due process, the contacts were fortuitous and irrelevant, and the trial court erred in several of its findings of facts. In its sixth through eighth issues, Shell CAPSA contends that certain agreements are insufficient to establish minimum contacts with Texas. In its ninth issue, Shell CAPSA contends that the due diligence it performed does not establish specific jurisdiction. In its tenth through thirteenth issues, Shell CAPSA contends the trial court erred in concluding a conspiracy established specific jurisdiction. In its sixteenth issue, Shell CAPSA contends the trial court improperly relied on a "non-interference" letter to find specific jurisdiction. We will address these issues together with Shell CAPSA's specific challenges to the trial court's findings and conclusions that Shell CAPSA purposely availed itself through certain agreements with Texas entities, its due diligence performed in Texas, and an alleged conspiracy involving a Texas company. Agreements and Letters In its sixth, seventh, and eighth issues, Shell CAPSA contends the trial court erred in relying on certain historical agreements, the Reef/CGC-IC Stock Purchase Agreement and the CGC-IC/Shell CAPSA Stock Purchase Agreement, in concluding that specific jurisdiction exists. In its sixteenth issue, Shell CAPSA contends the trial court erred in finding that Shell CAPSA admitted that it was the driving force behind CGC's acquisition of the non-interference letter from Reef prior to the close of the transaction. Shell CAPSA was not a party to: the Participation Agreement between the Hinton/Pet-JA entities, Reef, RASA, and CGC; the Joint Venture Operating Agreement between RASA and CGC; or the Reef/CGC-IC Stock Purchase Agreement. Therefore, these documents are not relevant to our consideration of the issue of specific jurisdiction over Shell CAPSA. The only agreement to which Shell CAPSA was a party, the CGC-IC/Shell CAPSA Stock Purchase Agreement, was governed by Argentine law. The trial court found that certain provisions of this agreement were relevant to specific jurisdiction. The recitals of the agreement indicated that the stocks in question were those that CGC-IC had obtained from Reef. In addition, Section 8.1(i) required that Shell CAPSA receive from Hinton affidavits that it had no claim against RASA or the Rio Colorado Block. These documents were to be "duly certified by a Notary Public having jurisdiction in the domiciles of either of the above companies" (emphasis added). (6) Section 8.1(j) stated that there were no outstanding capital contributions to be made to RASA, nor was there to be any other claim or right against RASA. (7) Section 8.1(k) also required that Shell CAPSA receive from CGC-IC evidence of full compliance with a consent decree of Hinton bankruptcy, to be issued by a federal bankruptcy court in Texarkana. Responding to Shell CAPSA's request of assurance that all pending claims from interested parties had been resolved, CGC's Dallas attorneys requested a non-interference letter from Reef before the completion of the transaction. (8) Although these contacts are related to some Texas entities, they are too attenuated to constitute "minimum contacts." Shell CAPSA did not directly contract with a Texas corporation, and, even if it had, merely doing so would not satisfy the minimum contacts analysis. See TeleVentures Inc., 12 S.W.3d at 908. The record does not suggest Shell CAPSA could foresee that it was contracting with Reef, or any other Texas corporation, which would result in its doing business in Texas. To the contrary, the record reflects that Shell CAPSA, an Argentine corporation, relied on CGC, an Argentine corporation acting as Reef's agent, to conduct this stock transaction. We hold that the agreements and letters are insufficient to confer specific jurisdiction. We sustain Shell CAPSA's sixth, seventh, eighth, and sixteenth issues. Due Diligence In its ninth issue, Shell CAPSA contends that the trial court erred in relying on Shell CAPSA's due diligence relating to the CGC-IC/Shell CAPSA Stock Purchase Agreement to confer jurisdiction. The trial court found the following facts relevant to due diligence: (1) payments that CGC-IC was required to make to Hinton in August, 1998; (2) verification of pending matters with the bankruptcy court in Texarkana, Texas, by Shell CAPSA's New York attorneys, who worked with CGC's Dallas attorneys; (3) an extensive conference call related to the transaction; (4) various letters sent between Shell CAPSA's New York attorneys and CGC's Dallas attorneys prior to the transaction; (5) "some evidence" of dealings with the Tyler attorneys for Hinton; and (6) a Joint Declaration with Respect to the Satisfaction With Due Diligence and Certain Conditions to Closing (Joint Declaration) referencing certain proof of finalized activities involving Hinton. First, the payments to Hinton were sent by CGC, not Shell CAPSA. Moreover, payments sent to the forum state are not determinative. See Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 691 (Tex. App.--San Antonio 1998, no pet.). Second, the evidence shows that Shell CAPSA never communicated directly with Reef. The communications amounted to one conference call between attorneys representing CGC and Shell CAPSA (Reef's attorneys were not on the phone), three faxes sent between attorneys for CGC and Shell CAPSA, and a call from a CGC attorney who informed Shell CAPSA's attorneys of the verification of matters pending in the bankruptcy court in Texarkana, Texas. It was also CGC's attorneys who contacted the attorneys in Tyler, Texas. In any event, engaging in negotiations with a party's attorney is not enough to establish minimum contacts. MTIS Ltd., 64 S.W.3d at 68. Reef cites Memorial Hospital System for the proposition that a single phone call can establish specific jurisdiction. Id. at 650. In that case, however, the telephone call was the cause of the injury to the plaintiff in Texas. Id. The court held that, because the false information given led to a foreseeable economic injury in Texas, there was a substantial connection between the defendant and Texas. Id. In this case, Reef contends that, during the conference call in question, the parties developed the plan to deceive Reef into selling its shares in RASA at a discount to CGC, which would then sell the shares to Shell CAPSA. The record does not support such a contention. The summary of the conference call outlines various financial and due diligence matters to be performed prior to closing the stock purchase agreement. The record does not reflect any communication between Shell CAPSA and Reef demonstrating a substantial connection between Shell CAPSA and Texas. Finally, the Joint Declaration was a document signed by representatives from CGC-IC and Shell CAPSA, reflecting the completion of due diligence prior to closing the transaction. This document did not involve any agreement between Shell CAPSA and a Texas corporation, and the Texas corporations mentioned in the Joint Declaration were merely part of the due diligence that had to be performed. Such fortuitous contacts made pursuant to the closing of a transaction do not meet the minimum contacts analysis. See Magnolia Gas, 994 S.W.2d at 691. We hold that the due diligence performed prior to the close of the transaction between CGC-IC and Shell CAPSA is insufficient to confer specific jurisdiction. We sustain Shell CAPSA's ninth issue. Conspiracy In its tenth through thirteenth issues, Shell CAPSA contends the trial court erred in assuming a conspiracy between Shell CAPSA and CGC to impute contacts CGC had with Texas. When a plaintiff alleges a conspiracy as a basis for specific jurisdiction, the non-resident defendant must know, or have good reason to know, that his conduct will have effects in the forum state. Gen. Elec. Co. v. Brown & Ross Int'l Distribs., Inc., 804 S.W.2d 527, 533 (Tex. App.--Houston [1st Dist.] 1990, writ denied) (citing to McFee v. Chevron Int'l Oil Co., 753 S.W.2d 469, 473 (Tex. App.--Houston [1st Dist.] 1988, no writ)). Although the trial court did not state in its conclusions of law that Shell CAPSA and CGC were conspiring in the transaction in question, it stated at the special appearance hearing that it had to "assume the allegations with respect to the conspiracy." The trial court made no specific findings of fact with regard to conspiracy. Reef contends that Shell CAPSA was aware Reef and CGC were partners. Reef points to several facts that purportedly demonstrate that Shell CAPSA and CGC engaged in a conspiracy to purchase the shares of RASA from Reef at a substantial discount. Reef points to the confidentiality agreement that Shell CAPSA and CGC signed with regard to the RASA shares, to the conference call in which attorneys for CGC and Shell CAPSA discussed matters involving the closing of the transaction, and to the non-interference letter obtained as a result of Shell CAPSA's demands. However, the evidence negates the existence of a conspiracy to defraud Reef. The record establishes that CGC misled Shell CAPSA as well as Reef. Although both Reef and Shell CAPSA knew of each other's participation and interest in the property, CGC led both parties to believe that the other was interested in communicating only through CGC. The initial bid letters instructed Shell CAPSA to respond to CGC's office, and neither Reef nor Shell CAPSA directly contacted each other. Moreover, there is no evidence that Shell CAPSA knew the price at which CGC was purchasing RASA stock because, in all copies of the Reef/CGC-IC Stock Purchase Agreements, the purchase price was redacted. Shell CAPSA paid $186 million for stock CGC had acquired a few days earlier for $48.5 million. There is no evidence in the record to support the trial court's implied fact findings that a conspiracy to defraud Reef existed. See BMC Software, 45 Tex. Sup. Ct. J. at 933-34 (holding that there was no evidence in the record to support the trial court's implied fact finding to support specific jurisdiction). We sustain Shell CAPSA's tenth through thirteenth issues. Shell CAPSA has negated all possible grounds for asserting specific jurisdiction. It could not have foreseen that its participation in a stock purchase agreement with another Argentine corporation would have resulted in a substantial connection with Texas. Having held so, it would offend due process to assert jurisdiction over Shell CAPSA, and we sustain Shell CAPSA's first, second, third, fifth, fourteenth, and fifteenth issues . Having concluded that Shell CAPSA negated all grounds for personal jurisdiction, we need not address its seventeenth issue, which contends that exercising personal jurisdiction would not comport with traditional notions of fair play and substantial justice. Reef's Cross-Issue In its cross-issue, Reef contends that the trial court abused its discretion by not allowing Reef to submit two affidavits in response to Shell CAPSA's motion for rehearing on the special appearance. Reef contends that the trial court has discretion to consider affidavits filed fewer than seven days before the special appearance hearing. See Tex. R. Civ. P. 120a(3); Potokvick v. Reg'l Ventures, Inc., 904 S.W.2d 846, 850 (Tex. App.--Eastland 1995, no writ). The special appearance hearing was on October 9, 2001, and Reef filed its affidavits after the special appearance hearing and just before the October 26, 2001 rehearing. (9) The two affidavits in question were from Hinton officials. Reef also attempted to submit 39 pages of records and two computer compact disks from Pet-JA. All of these documents referred to events that occurred after suit was initiated by Reef. Contacts occurring after suit has been filed are irrelevant. A trial court should examine a defendant's contacts with the forum state over a period that is reasonable under the circumstances, up to and including the date the suit was filed. Preussag, 16 S.W.3d at 126. The trial court did not abuse its discretion in excluding evidence that was submitted after seven days prior to the special appearance rehearing and that was related to events occurring after suit was filed. We overrule Reef's cross-issue. Conclusion We hold there is no evidence to support the trial court's conclusion that Shell CAPSA's contacts with Texas were sufficient to confer personal jurisdiction. Accordingly, we reverse the order of the trial court and render judgment dismissing the case against Shell CAPSA without prejudice for lack of personal jurisdiction. Tim Taft Justice Panel consists of Justices Mirabal, Taft, and Alcala. Publish. Tex. R. App. P. 47.1. 1. We will refer to these four companies collectively as the "Hinton/Pet-JA entities." 2. A Sociedad Anomina (S.A.) is a type of business entity with limited liability for owners. 3. We overrule Shell CAPSA's nineteenth and twentieth issues because we disagree with the contention that the party seeking personal jurisdiction bears the ultimate burden of proof. 4. Consequently, we will only address specific jurisdiction. See, e.g., Int'l Elevator Co. v. Garcia, No. 01-01-00689-CV, slip op. at 6 (Tex. App.--Houston [1st Dist.] May 9, 2002, no pet.) (citing to Pessina v. Rosson, No. 03-01-00204-CV, slip op. at 5 (Tex. App.--Austin Nov. 15, 2001, pet. filed Feb. 4, 2002) (addressing only specific jurisdiction when parties stipulated general jurisdiction not at issue)). Accordingly, we will not address Shell CAPSA's eighteenth issue which, in cursory fashion, asserts the trial court correctly found that there was no general personal jurisdiction over Shell CAPSA. 5. In its fourth issue, Shell CAPSA contends that specific jurisdiction should be determined under the "substantive relevance test," which requires that the non-resident defendant's purposeful contacts be at least a proximate cause of the plaintiff's injury. We decline to follow this test inasmuch as this test has not been adopted by any court in our jurisdiction. We overrule Shell CAPSA's fourth issue because that issue requests application of the "substantive relevance" test. 6. The trial court found, in its sixth finding of fact, that Shell CAPSA required Hinton's statement to be notarized by a Texas notary. The agreement actually stated that the statement could be notarized in a jurisdiction of either companies' domicile. 7. The trial court found, in its thirteenth finding of fact, that the Shell CAPSA-CGC-IC transaction required written confirmation from Reef for the Reef-CGC transaction. The trial court referred to a letter dated August 4, 1998. The agreements did not require written confirmation from Reef for the Reef/CGC transaction; rather, CGC actually requested the August 4, 1998 letter. 8. The trial court's twentieth finding of fact states that Shell CAPSA admitted it was the "driving force" behind CGC's acquisition of the non-interference letter signed by Reef's president. Our review of the record indicates that Shell CAPSA made no such admission or request and that it was CGC that sought and acquired the letter. 9. There is no mention of exactly when the affidavits were filed, but it is clear they were filed after the October 9, 2001 special appearance hearing.