P.V.F., Inc. v. Pro Metals, Inc.
P.V.F., Inc. v. Pro Metals, Inc.
Opinion of the Court
MAJORITY OPINION ON MOTION FOR REHEARING
P.V.F., Inc.’s (“PVF”) motion for rehearing is overruled, the opinions issued in this case on August 23, 2001 are withdrawn, and the following majority and dissenting opinions are issued in their place.
In this interlocutory appeal,
Background
PVF is a Delaware corporation with its principal place of business in Delaware, and Pro Metals, Inc. (“Pro Metals”) conducts its business in Texas. At various times from November of 1998 to December of 1999, PVF orally purchased goods from Pro Metals on credit. After PVF allegedly failed to pay Pro Metals for goods purchased in two" of these transactions, Pro Metals brought suit in Texas for payment. PVF filed a special appearance, which the trial court denied.
The trial court’s findings of fact state that: (1) since October of 1998, PVF placed thirty separate purchase orders to Pro Metals at its offices in Texas; (2) the orders consisted of pipe and pipe fittings, including components manufactured in Texas; (3) the goods were taken from Pro Metals’s Texas inventory; (4) the goods were shipped “F.O.B.” Houston;
Standard of Review
We are aware of no case in which the Texas Supreme Court has specified whether the appropriate standard for reviewing a decision on personal jurisdiction is abuse of discretion, sufficiency of the evidence, de novo review, a combination of these, or otherwise. However, appeals courts have generally reviewed trial courts’ challenged findings of fact on the existence or lack of personal jurisdiction for sufficiency of the evidence, and their conclusions of law on that issue, de novo.
In order for a court’s assertion of jurisdiction over a nonresident defendant to comport with due process, (1) the defendant must have purposefully established minimum contacts with the forum state such that it could reasonably anticipate being sued in that state; and (2) the exercise of jurisdiction must comport with fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998). A defendant’s contacts with a forum state can give rise to either specific or general jurisdiction. CSR, 925 S.W.2d at 595.
Specific jurisdiction is established where the alleged liability arises from activity conducted within, or “purposefully directed” toward, the forum state and involves a less demanding minimum contacts analysis than general jurisdiction. CSR, 925 S.W.2d at 595. - Although the existence of jurisdiction will vary with the quality and nature of a defendant’s activity, it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). The unilateral activity of those who claim a relationship with a nonresident defendant cannot satisfy this requirement. Id.
Conversely, general jurisdiction exists where the defendant has had continuous and systematic contacts with the forum state, even if the cause of action did not arise from the defendant’s purposeful conduct in that state. CSR, 925 S.W.2d at 595.
To invoke the fair play and substantial justice prong of the due process requirement, a nonresident defendant must present a compelling case that the exercise of jurisdiction over it would be unreasonable.
Existence of Jurisdiction
PVF contends that two unpaid invoices for goods that were ordered from Texas, partly manufactured in Texas, shipped F.O.B. from Texas, and to be paid for in Texas, are not sufficient to support specific jurisdiction.
Cases, such as this, in which a Texas seller sues an out-of-state buyer often present a tenuous due process analysis, and “[njarrow factual distinctions will often suffice to swing the due process pendulum.” U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 764 (Tex. 1977).
Turning, then, to whether PVF’s activities in Texas are sufficient to establish specific jurisdiction, we note in particular that: (1) although the record is unclear whether the parties’ relationship was originally solicited in Texas, Pro Metals offered evidence, and the trial court expressly found, that PVF issued thirty separate purchase orders to Pro Metals in Texas; and (2) Pro Metals has alleged, and PVF has not denied, that PVF sought and obtained approval to purchase goods from Pro Metals on credit
the judgment of the trial court overruling its special appearance is affirmed.
FROST, J. dissenting.
. See Tex Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp. 2001) (permitting interlocutory appeal of an order granting or denying a special appearance).
. “F.O.B.” at the place of sale means the purchaser will pay the freight and assume the risk of loss during shipment. Tex Bus. & Com.Code Ann. § 2.319(a)(1) (Vernon 1994).
. See, e.g., Cartlidge v. Hernandez, 9 S.W.3d 341, 346 (Tex.App.—Houston [14th Dist.] 1999, no pet.); C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d 473, 476 (Tex.App.—Houston [14th Dist.] 1999, no pet.); Conner v. ContiCarriers and Terminals, Inc., 944 S.W.2d 405, 411 (Tex.App.—Houston [14th Dist.] 1997, no writ); Linton v. Airbus Industrie, 934 S.W.2d 754, 757 (Tex.App.—Houston [14th Dist.] 1996, writ denied); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.—Dallas 1993, writ denied); see generally Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991) (noting that a trial court’s findings of fact are reviewed for legal and factual sufficiency of the evidence); W. Wendell Hall, Standards of Review in Texas, 29 ST. MARY’S L.J. 351, 375-76 (1998).
. Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 769 (Tex.App.—Corpus Christi 2001, no. pet. h.); Amerada Hess Corp. v. Wood Group Prod. Tech., 30 S.W.3d 5, 11 (Tex.App.—Houston [14th Dist.] 2000, pet. denied).
. See Tex. Civ. Prac & Rem.Code Ann. § 17.041-.093 (Vernon 1997).
. In addition to other, unspecified acts, a nonresident does business in this State if the nonresident: (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this State; (2) commits a tort in whole or in part in this State; or (3) recruits Texas residents, directly or through an intermediary located in this State, for employment inside or outside this State. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997).
. However, because we conclude below that PVF's contacts are sufficient to support specific jurisdiction, we do not address general jurisdiction.
. The factors to be considered include: (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental social policies. In re S.A.V., 837 S.W.2d at 86.
. In opposing PVF’s special appearance, Pro Metals submitted affidavits showing that: (1) PVF placed thirty separate purchase .orders with Pro Metals; (2) many of the pipe and pipe fitting components were manufactured in Texas; (3) the goods were purchased from Pro Metals’s Texas inventory; (4) PVF was responsible for the payment of freight because the goods were shipped "F.O.B. Houston;” (5) payment of goods was to be made to Pro Metals’s office in Texas; and (6) PVF initiated contact with Pro Metals by requesting information about its products.
. Factors the courts have relied upon in determining whether a Texas court has personal jurisdiction over a nonresident buyer have included: (1) the state in which the agreement was solicited (and by whom), negotiated, consummated, and performed; (2) whether, after entering into the agreement, the nonresident directed communications to Texas in furtherance of the transaction(s); (3) whether the nonresident earned a profit in Texas from the transaction(s); (4) whether the nonresident paid the cost to ship the goods from Texas; (5) whether the nonresident placed follow-up orders; (6) whether Texas law governed the transactions; and (7) whether payments were sent or to be sent to Texas. Compare-U-Anchor Adver., Inc. v. Burt. 553 S.W.2d 760, 761 (Tex. 1977) (holding no jurisdiction over nonresident customer where contract was solicited, negotiated, and consummated in Oklahoma for billboards to be built in Texas and erected in Oklahoma, payments were made to Texas, and defendant would not earn a profit from Texas and had no other contact with Texas); and 3-D Electric Co. v. Barnett Constr. Co., 706 S.W.2d 135, 143 (Tex.App.—Dallas 1986, writ ref’d n.r.e.) (holding that Texas lacked jurisdiction over a Tennessee general contractor which orally solicited and contracted with a Texas electrical contractor to perform electrical work in Colorado and which directed payments, telephone calls, and correspondence to Texas); with Southwest Offset Inc. v. Hudco Publ’g Co.. 622 F.2d 149, 150 (5th Cir. 1980) (holding that jurisdiction existed over nonresident printing customer, despite the fact that Texas printer solicited the business in Alabama and nonresident sent no personnel to Texas, because nonresident: placed additional orders from which it expected to profit, sent payments to Texas, sent and received printing materials to and from Texas, paid for shipping of printed goods from Texas, and sent payments to Texas; the transactions were governed by Texas law; and substantial
. In addition:
A State generally has a "manifest interest” in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Moreover, where individuals "purposefully derive benefit” from their interstate activities, it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.
Burger King, 471 U.S. at 473-74, 105 S.Ct. 2174.
. Pro Metals’s petition alleges that PVF’s purchases were made on “credit extended to PVF” and refers to an attached document on PVF's letterhead entitled "Credit Reference,” which states "please find below the information which you requested concerning our application for credit," followed by names and addresses of three "credit references.” PVF has not disputed that it requested and received credit approval from Pro Metals or that the purchases at issue in this case were made pursuant to its request for credit.
. Although the record does not indicate that any such profit has been earned from resales in Texas, no rationale exists for requiring a profit to be earned within the State if sufficient activities are otherwise purposefully directed here. In addition, specific jurisdiction has been found over non-resident buyers without requiring that they earned a profit in Texas. See, e.g., Southwest Offset, 622 F.2d at 151-52.
Dissenting Opinion
dissenting on motion for rehearing.
I respectfully dissent. Given the facts in this record and Texas Supreme Court precedent, the due process pendulum should swing in the other direction. This court should sustain P.V.F., Inc.’s challenge to the trial court’s denial of its special appearance, and this court should remand with instructions to dismiss for lack of personal jurisdiction.
Courts have long rejected the notion that any link to the forum state in a business transaction is sufficient to subject nonresident participants to the jurisdiction of that forum’s courts. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (stating that an individual’s contract with an out-of-state party cannot by itself establish sufficient minimum contacts in the other party’s home forum); TeleVentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900, 908-09 (Tex.App.—Austin 2000, pet. denied) (merely contracting with a Texas corporation does not satisfy the minimum-contacts requirement); Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 691-92 (Tex.App.—San Antonio 1998, no pet.) (neither contracting with a Texas corporation nor the partial performance of
PVF, a supplier to the poultry industry, has no offices or facilities outside of Delaware. Almost all of its sales are made to residents of Delaware, Pennsylvania, and Maryland. PVF has never sold any goods in Texas, nor maintained any office or other place of business in Texas. PVF has never solicited business in Texas. PVF has never extracted any profit from Texas. Nothing in the record suggests that PVF has ever taken any action to exploit the Texas marketplace. PVF merely purchased goods (pipe and pipe fittings) from Pro Metals, Inc., a Texas seller, that took the goods from its inventory in Texas and shipped them F.O.B. Houston, to PVF in Delaware. Pro Metals’s act of shipping the goods F.O.B. Houston does not, by itself, give a Texas court jurisdiction over PVF. See Sun-X Int’l Co. v. Witt, 413 S.W.2d 761, 768 (Tex.Civ.App.—Texarkana 1967, writ ref'd n.r.e.) (finding no personal jurisdiction where seller shipped goods F.O.B. Houston).
PVF placed the two telephone orders at issue in this case from its office in Delaware. Although PVF sent payments on other orders to Texas, the record contains no evidence of any agreement by PVF to perform any obligation in Texas. In fact, the trial court expressly rejected Pro Metals’s proposed finding that “Payment for the goods purchased by PVF, was due to be made to Pro Metals in the State of Texas-” PVF did not send any payment on these two telephone orders to Texas, but even if it had, merely purchasing goods from, and sending payments to, Texas do not constitute sufficient minimum contacts for the exercise of either general or specific jurisdiction. See, e.g., U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 763 (Tex. 1977) (defendant who prepared and mailed checks to forum state did not have sufficient minimum contacts with the forum); Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 691 (Tex.App.—San Antonio 1998, no pet.) (“Furthermore, payments sent to the forum state are not determinative.”); Stuart v. Spademan, 772 F.2d 1185, 1194 (5th Cir. 1985) (“Spademan’s mailing of payments to the plaintiffs in Texas can hardly be termed significant in terms of determining purposeful availment of the benefits of the forum state’s laws.”).
In U-Anchor, a nonresident entered into a three-year written contract with a Texas resident. U-Anchor, 553 S.W.2d at 761. The plaintiff/advertising company (Texas resident) was to build and erect billboards at certain locations in Oklahoma in exchange for monthly payments from the nonresident defendant. Id. The contract, executed in Oklahoma, expressly required the nonresident defendant to make its payments in Texas. Id. The billboards were constructed in Texas and then delivered to the locations in Oklahoma. Id. The nonresident defendant paid for six or seven months by sending his checks to the plain
The Texas Supreme Court affirmed and held the exercise of specific jurisdiction requires more to establish purposeful availment, noting that the nonresident’s “contacts with Texas were not grounded on any expectation or necessity of invoking the benefits and protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas.” U-Anchor, 553 S.W.2d at 768 (emphasis added). The U-Anchor court found the nonresident a passive customer of a Texas corporation, who neither sought, initiated, nor profited from his single and fortuitous contact with Texas. Id. Like PVF, the nonresident purchaser’s only contacts with Texas consisted of purchases and the remission of payments to Texas. Id. Even though the claim arose out of the nonresident’s contacts, due process required dismissal for lack of jurisdiction. Id.
PVF was a “passive customer,” as that term is used in U-Anchor. Because PVF’s contacts are no less attenuated than those in U-Anchor, this court, like the U-Anchor court, should dismiss for lack of jurisdiction. The majority, however, reaches the opposite conclusion, finding that PVF’s activities in Texas are sufficient to support specific jurisdiction based on (1) PVF’s issuance of “thirty separate purchase orders” to Pro Metals in Texas; and (2) Pro Metals’s allegation that PVF “sought and obtained approval to purchase goods from Pro Metals on credit” for resale to others. Under controlling precedent, neither finding is sufficient to support specific jurisdiction.
Issuance of Purchase Orders
In U-Anchor, where the defendant also made several payments to Texas before defaulting, the Texas Supreme Court reached a different conclusion than the majority reaches today, specifically stating that the nonresident defendant had “engaged in no ‘activity’ in Texas, his only ‘activity’ being the preparation and mailing of checks from his place of business in Oklahoma.” U-Anchor, 553 S.W.2d at 763 (emphasis added).
Arguably, the contract in U-Anchor created a stronger nexus to Texas than the purchase orders PVF placed with Pro Metals. The U-Anchor contract was a long-term, three-year agreement establishing a continuing relationship and obligating the nonresident to make 36 payments over time to the Texas plaintiff. U-Anchor, 553 S.W.2d at 761. Here, PVF did not make a long-term commitment to remit payments to Texas, nor does Pro Metals’s claim involve 36 payments; it involves only two.
Purchase of Goods on Credit
The majority also finds PVF’s purchase of goods on credit for resale to others significant in its determination, concluding that “PVF created a continuing relationship and continuing obligations with Pro-Metals for the purpose of earning a profit from its interstate purchasing activity.” The court’s analysis of PVF’s conduct is flawed because, instead of looking at
In footnote 13, the majority cites to Southwest Offset, Inc. v. Hudco Publishing Co., Inc., 622 F.2d 149 (6th Cir. 1980), for the proposition that “specific jurisdiction has been found over nonresident buyers without requiring that they earned a profit in Texas.” However, in that case, the Fifth Circuit found its own authority controlling, not U-Anchor. Southwest Offset, Inc., 622 F.2d at 151 (citing Prod. Promotions, Inc., v. Cousteau, 495 F.2d 483 (5th Cir. 1974)). Unlike the facts in the record now before us, the parties in Southwest had entered into several contracts, all of which were governed by Texas law, and based on this fact, “Hudco [the nonresident], like the defendant in Cousteau, could expect that Texas law might govern the enforcement of their contracts.” In addition, the Fifth Circuit expressly found that the nonresident had taken action “in order to facilitate the manufacturing process” in Texas and thus “did considerably more than [the nonresident] in U-Anchor.” Id. at 152. PVF resembles the nonresident defendant in U-Anchor more than the nonresident defendant in either Cousteau or Southwest.
The key to sustaining jurisdiction in Texas is not that the nonresident defendant made a profit somewhere (or anywhere) but rather that it made a profit from activities in Texas; in other words, the nonresident’s activity must have been calculated to extract profits from the Texas market, thereby creating intentional activity in Texas. U-Anchor, 553 S.W.2d at 764. There is simply no evidence of that here. The majority does not, and cannot, find that PVF conducted any activity aimed at extracting profits from Texas. The record contains nothing that would even suggest that PVF has earned or will earn any profit from Texas markets or Texas residents. A purchase of goods from a Texas resident for incidental use in making a profit beyond Texas borders is not the same thing as extracting profit from Texas. The majority’s failure to appreciate this distinction flaws its entire analysis and results in a finding that is an unprecedented expansion of the supreme court’s holding in U-Anchor. Under the rationale the majority applies today, any nonresident that purchases goods from a Texas supplier would be subject to jurisdiction in Texas even though it sells its goods outside Texas and extracts no profits from Texas markets.
In U-Anchor and in this case, the plaintiff was a Texas company that built or manufactured the goods, at least in part, in Texas. See id. Like the nonresident defendant in U-Anchor, PVF was aware of these facts at the time it ordered the goods. In U-Anchor, as in this case, the payment in the transaction was for the benefit of the Texas resident; the nonresident buyer was not extracting profit from Texas. Id. at 763. In U-Anchor and in this case, the nonresident had made prior payments to the Texas resident. Id. at 761. In U-Anchor, the Texas Supreme Court held that a nonresident was not subject to personal jurisdiction in Texas where he entered into a three-year contract requiring 36 payments in Texas, and where he made six or seven payments in Texas. PVF is a nonresident that occasionally places orders and sends payments to Texas and that is not extracting profit from Texas markets. Under U-Anchor, PVF cannot be subject to personal jurisdiction in this case. See id. at 761-64.
The Texas Supreme Court’s decision in U-Anchor mandates reversal of the trial court’s order denying PVF’s special appearance. The facts in this case are not sufficient to sustain specific jurisdiction.
Reference
- Full Case Name
- P.V.F., INC., Appellant, v. PRO METALS, INC., Appellee
- Cited By
- 19 cases
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- Published