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GOODING SEED COMPANY AND

LEOPOLDO GUARROCHENA

EPIFANIO BARROSO AND

MARTIN BARROSO

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Opinion

Epifanio Barroso was a passenger in a vehicle driven by his brother, Martin Barroso. While traveling in Idaho the vehicle rear ended a tractor-trailer rig owned by Gooding Seed Co. and driven by its employee, Leopoldo Guarrochena. Gooding is an Idaho corporation whose principal place of business is in Gooding, Idaho. Barroso filed suit in Hidalgo County, Texas against his brother, Gooding, and Guarrochena for injuries he received in the collision. Gooding and Guarrochena contested personal jurisdiction through special appearances. After an evidentiary hearing the trial court denied the special appearances, and appellants brought this interlocutory appeal pursuant to Texas Civil Practices and Remedies Code § 51.014(a)(7) (Vernon Supp. 2000). Appellants challenge the denial of their special appearances by five issues, arguing that Texas does not have personal jurisdiction over them. We reverse and dismiss the suit for want of personal jurisdiction.

Appellants' evidence included two affidavits from Lawrence Robertson and one from Leopoldo Guarrochena. Robertson's affidavits show that he has served as Gooding's president for a number of years and is familiar with its day-to-day business. Regarding Gooding's connections with Texas Robertson stated, in part, as follows:

(1) Gooding is an Idaho corporation, incorporated in Idaho. All of its officers, directors, and shareholders reside in Idaho. Gooding's registered agent for service of process is addressed in Idaho; it has no registered agent for service of process in Texas. Gooding does not have any employees who reside or work in Texas;

(2) All of Gooding's offices are located in or near Gooding, Idaho. It has no offices in Texas. All property owned by Gooding, including its bank account, is located in Idaho. It has no property in Texas;

(3) Gooding sells seed, chemicals, and fertilizer. Robertson stated that "[a] search of our records shows that we do not and have not made any sales to customers in" Texas. He stated that "I do not recall selling any of our products to customers in Texas." Gooding does not buy any of its seeds, chemicals, or fertilizer from persons in Texas. He stated that "[t]o the best of my knowledge" Gooding has no business contacts with Texas at all; and

(4) The alleged accident occurred in Idaho. Leopoldo Guarrochena was hired as an employee in Gooding, Idaho. On any occasion that Guarrochena was entrusted to use a Gooding Seed Co. vehicle, such entrustment occurred in Idaho.

Robertson concluded this affidavit by stating, "The above and foregoing is true to my personal knowledge." Barroso complains that the above affidavit defeats Robertson's personal knowledge of the facts because (1) his knowledge is based upon "a search of our records," and (2) it states that it is based on the recollection of the affiant and on "the best of my knowledge."

In M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403 (Tex. App.--Corpus Christi 1999, no pet.)⁽²⁾ we held, in the context of an affidavit to support a special appearance, "that a corporate officer may testify that information concerning the corporation's contacts with a given state is within his personal knowledge without showing with particularity how he acquired that knowledge." Id. at 407 (emphasis added). In the instant case Robertson served as Gooding's president, was familiar with its business, and stated that the affidavit was "true to my personal knowledge." The facts regarding a corporation's business connections with another state are ordinarily within the personal knowledge of its corporate officers. See id. at 407. We hold therefore that Robertson may testify that information concerning Gooding's contacts with Texas is within his personal knowledge and that he does not have to show with particularity how he acquired that knowledge. See id. at 407. Accordingly we will consider Robertson's affidavit in determining whether Gooding has any contacts with Texas.

In MGM Grand we reaffirmed the standard for reviewing a trial court's denial of a special appearance as follows:

The standard of review to determine the appropriateness of the trial court's resolution of those facts is an ordinary sufficiency of the evidence review.... The scope of that review includes all evidence in the record.... If a special appearance is based on undisputed or otherwise established facts an appellate court shall conduct a de novo review of the trial court's order granting a special appearance. [However,] in applying the jurisdictional formula to a particular case, the facts must be carefully weighed and mechanical application of any test ... must be avoided.

MGM Grand, 8 S.W.3d at 407; Happy Indus. Corp. v. American Specialties, Inc., 983 S.W.2d 844, 847 (Tex. App.--Corpus Christi 1998, writ dism'd w.o.j.) (citations omitted).

The plaintiff has the burden to plead a prima facie showing of jurisdiction. MGM Grand, 8 S.W.2d at 408. To sustain a special appearance the nonresident defendant bears the burden of negating all bases of personal jurisdiction. C.S.R. Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996). Once the defendant has negated all bases of jurisdiction the plaintiff has the ultimate burden to establish that the Texas court has personal jurisdiction over the defendant as a matter of law. MGM Grand, 8 S.W.3d at 408.

A court may assert personal jurisdiction over a nonresident defendant only if the requirements of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and the Texas long-arm statute are satisfied. C.S.R., 925 S.W.2d at 594. The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant "as far as the federal constitutional requirements of due process will allow." Id. Thus the question of whether the defendant is within the Texas long-arm statute typically merges with the issue of whether personal jurisdiction is consistent with federal standards. Id.

Due process permits a state court to exercise personal jurisdiction over a 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); CMMC v. Salinas, 929 S.W.2d 435, 437 (Tex. 1996). A nonresident who purposefully avails himself of the privileges and benefits of conducting business in Texas must answer to a suit in Texas. C.S.R., 925 S.W.2d at 594. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985).

A nonresident's contacts with a state can give rise to either general or specific jurisdiction. Specific jurisdiction occurs if the defendant's alleged liability arises from or is related to an activity conducted within the state. C.S.R., 925 S.W.2d at 595. The Texas Supreme Court has stated that the act must be purposefully directed at Texas so that the defendant could foresee being haled into court here. Id. And even when minimum contacts with the forum state are established the state court cannot exercise personal jurisdiction over the defendant if that would offend traditional notions of fairness. Id.

General jurisdiction is present when a defendant's contacts in the state are so continuous and systematic that the state may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. C.S.R., 925 S.W.2d at 595; Happy Indus., 983 S.W.2d at 847. General jurisdiction requires a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. C.S.R., 925 S.W.2d at 595; Happy Indus., 983 S.W.2d at 847.

Barroso concedes that evidence in the record supports the special appearance of Leopoldo Guarrochena. However he contends that Gooding has two contacts with Texas: (1) an internet website with a toll-free telephone listing; and (2) permits from the U.S. Department of Transportation (DOT) allowing Gooding to operate its trucks in interstate commerce.

At the evidentiary hearing on the special appearance the trial court admitted in evidence a print out of pages from a website. One page gave Gooding's name as a vendor of forage, listing its address and giving the name and email address for a sales person. This website was the "Forage Information System" (FIS) owned, maintained, and operated by Oregon State University. OSU copyrighted the website and provided the FIS as a benefit to Oregon residents. Visitors to the website cannot contact Gooding or submit orders through the website. There is no evidence that Gooding used the website to conduct business.

Gooding's president. Lawrence Robertson, stated in his affidavit that Gooding has never constructed, owned, or operated an Internet website. He also stated that Gooding had not authorized any other entity or anyone else to construct or operate an Internet website on Gooding's behalf.

Because Gooding did not authorize the website and had no contact with visitors to the website we conclude that the website is insufficient to confer jurisdiction. See Mink v. AAA Development, LLC. 190 F.3d 333 (5th Cir. 1999).

The DOT permits are licenses for Gooding's trucks to use interstate highways. The application for or possession of permits to do business in interstate commerce is insufficient to create a contact with a state. See J & J Marine, Inc. v. Le, 982 S.W.2d 918, 926 (Tex. App.--Corpus Christi 1998, no pet.); International Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 809-10 (Tex. App.--Fort Worth 1994, writ denied).

The evidence showed that this cause of action resulted from a collision in Idaho between Barroso and a vehicle owned by Gooding, an Idaho corporation which had no connections or contacts of any sort with Texas. Therefore the evidence is sufficient to prevent a Texas court's assertion of specific or general jurisdiction over appellants. See C.S.R., 925 S.W.2d at 595; Happy Indus., 983 S.W.2d at 847. We hold that the trial court erred in denying appellants' plea to the court's jurisdiction by special appearance.

We reverse the order denying the special appearances and dismiss this suit for lack of personal jurisdiction.

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J. BONNER DORSEY,

Justice

Do not publish

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 8th day of June, 2000.

1. Justice Antonio G. Cantu assigned to this Court by the Chief Justice of the Supreme Court pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1988).

2. MGM in support of its special appearance used the affidavit of Tom Peterman, its senior vice president. His affidavit stated that he had personal knowledge of the facts stated in his affidavit. The affidavit stated facts about MGM's contacts with Texas. Castro argued that the affidavit was faulty because Peterman's position as MGM's vice president did not sufficiently show how he had acquired personal knowledge of the facts in his affidavit.