Waterman Steamship Corporation and Maersk Line Limited v. Miguel Ruiz

Opinion issued August 25, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00516-CV

———————————

Waterman Steamship Corporation and Maersk Line, Limited , Appellants

V.

Miguel Ruiz,

John Cronan, and Richard E. Hicks , Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Case No. 2009-64336

OPINION ON REHEARING

Appellee

John Cronan filed a motion for rehearing of our April 14, 2011 opinion. We grant rehearing, withdraw our April 14,

2011 opinion and judgment and issue this opinion and judgment in their place. The disposition of the case remains

unchanged.

In this interlocutory appeal,

appellants, Waterman Steamship Corporation (“Waterman”) and Maersk Line,

Limited (“Maersk”), appeal the trial court’s order denying their special

appearances. Appellees, Miguel Ruiz,

John Cronan, and Richard Hicks, sued Waterman and Maersk for negligence under

the Jones Act and general maritime law for injuries allegedly suffered during

the hijacking of the M/V MAERSK ALABAMA by pirates off the coast of

Somalia. In four issues on appeal, Waterman

and Maersk contend that the trial court erred in denying the special

appearances because: (1) appellants

did not waive their special appearances in this case by their actions in

Hicks’s earlier suit; (2) appellants lack sufficient minimum contacts with

Texas to support the exercise of general jurisdiction; (3) exercising personal

jurisdiction under these circumstances does not comport with traditional

notions of fair play and substantial justice; and (4) the trial court erred in

failing to file findings of fact and conclusions of law. Waterman additionally contends that its

officer, Peter Johnston, had personal knowledge of the facts contained in his

affidavit supporting its special appearance.

We

affirm in part and reverse and render judgment in part.

Background

On April 8, 2009, while the M/V

MAERSK ALABAMA was en route from Djibouti to Kenya to deliver food aid cargo,

pirates hijacked the vessel in the Gulf of Aden off the coast of Somalia. During the ensuing struggle, pirates took

appellees, who were crewmembers on board the ALABAMA, hostage and held them in

the steering room of the vessel.

Appellees allegedly suffered severe injuries when they were “thrown

about” by the pirates.

Richard Hicks, a Florida resident,

first sued Waterman and Maersk on April 27, 2009, in Harris County, Texas (“the

Hicks case”). The case was assigned to

the 270th District Court of Harris County.

Hicks sued appellants under the Jones Act and general maritime and

common law, alleging that appellants’ negligence and the vessel’s

unseaworthiness proximately caused his injuries. Hicks alleged that appellants “knowingly sent

their employees . . . into pirate-infested waters rather

than take safer routes.” Hicks contended

that appellants knowingly exposed their employees to “grave and imminent

danger” and did not take “adequate steps to provide appropriate levels of

security and safety for [their] employees.”

Hicks sought recovery for past and future medical expenses, past and

future pain and suffering and mental anguish damages, and past and future

“maintenance and cure.” In paragraph two

of his original petition, Hicks alleged that both Waterman and Maersk were

“foreign corporation[s] engaged in business in the State of Texas.” He did not plead any other facts supporting

personal jurisdiction over Waterman and Maersk.

Waterman is an Alabama corporation,

with its principal place of business in Alabama. Maersk is a Delaware corporation, with its

principal place of business in Virginia.

Before filing a special appearance or answering in state court, appellants

removed the Hicks case to federal court.

In their federal answer, appellants contended that venue was improper in

the Southern District of Texas because Hicks resides in Florida and neither

appellant has a place of business in Harris County or in Texas. Appellants also asserted that the Southern

District was an inconvenient forum because no witnesses for the case reside in

Texas. Appellants set out their venue

objection in a separate defense.

Appellants then answered each of the numbered allegations from Hicks’s

petition. Regarding Hicks’s paragraph

two, appellants admitted that Hicks is a resident of Florida and that Waterman

and Maersk are both foreign corporations.

Appellants then denied the “remaining allegations contained in Paragraph

II in the Original Petition,” which included Hicks’s allegation that Waterman

and Maersk were “engaged in business in the State of Texas.” Appellants did not move for dismissal based

on lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(2). See Fed. R. Civ. P.

12(b)(2).

While the Hicks case was pending in

federal court, appellants propounded discovery requests. On September 16, 2009, the Southern District of

Texas remanded the Hicks case to the 270th District Court of Harris County, Texas. Appellants did not file a special appearance or

take any other action in the Hicks case after the federal court remanded it.

On October 6, 2009, Miguel Ruiz, a

New York resident, also sued Waterman and Maersk in Texas state court (“the

Ruiz case”). Ruiz’s petition was

substantively identical to Hicks’s first petition, and this case was assigned

to the 164th District Court of Harris County.

On October 12, 2009, fellow crewmembers Husain Salah, Mohamed

Abdelwaham, Andrew Brzezinski, Mario Clotter, and Hector Sanchez intervened in the

Ruiz case. [1] On November 6, 2009, John Cronan, a

Pennsylvania resident, also intervened in the Ruiz case. On December 1, 2009, Hicks nonsuited his case

in the 270th District Court and intervened in the Ruiz case the next day.

Waterman and Maersk filed special

appearances in response to Ruiz’s original petition on December 18, 2009. [2] In their special appearances, Waterman and

Maersk alleged that they were incorporated in Alabama and Delaware,

respectively, and had their principal places of business in Alabama and

Virginia, respectively. Both contended

that the trial court could not exercise specific jurisdiction because the

plaintiffs’ cause of action did not arise out of or relate to any contacts

either defendant had with Texas. They

further contended that the exercise of general jurisdiction was improper

because most of their contacts with Texas were random, fortuitous, and

attenuated, and the contacts did not rise to the level of purposeful availment

of the benefits and protections of Texas law.

Appellants finally contended that, even if the trial court could

properly exercise general jurisdiction, this exercise would violate traditional

notions of fair play and substantial justice because the case has no connection

to Texas: all of the parties and

witnesses reside in other states, no evidence exists in Texas, and the

underlying incident occurred off the coast of Somalia.

Appellees

objected to the special appearance affidavit of Peter Johnston, Waterman’s

Executive Vice President, on the ground that he lacked personal knowledge of

the affidavit’s contents. Appellees

raised this argument at the special appearance hearing, but the trial court

never specifically ruled on this objection and it never struck Johnston’s affidavit

as incompetent special appearance evidence.

The trial court denied Waterman’s

and Maersk’s special appearances. Both

appellants requested findings of fact and conclusions of law. However, they appealed to this court before

the trial court could issue findings and conclusions. See

Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(7) (Vernon 2008) (allowing interlocutory appeal from order

denying special appearance).

Waiver of Special Appearance

In

their first issue, appellees contend that Waterman and Maersk waived their

special appearances in the Ruiz case because they did not contest the exercise

of personal jurisdiction in state or federal court in the first-filed Hicks

case. Waterman and Maersk contend that

Hicks’s nonsuit of his original petition extinguished any waiver of their

objections to personal jurisdiction, and thus Waterman and Maersk did not waive

their special appearances in the Ruiz case.

We agree with Waterman and Maersk.

Under

the Texas Rules of Civil Procedure, “[a]t any time before the plaintiff has

introduced all of his evidence other than rebuttal evidence, the plaintiff may

dismiss a case, or take a non-suit, which shall be entered in the

minutes.” Tex. R. Civ. P. 162; Travelers

Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). A nonsuit “extinguishes a case or controversy

from ‘the moment the motion is filed’ or an oral motion is made in open court . . . .” Univ.

of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz , 195

S.W.3d 98, 100 (Tex. 2006) (per curiam) (quoting Shadowbrook Apartments v. Abu-Ahmad , 783 S.W.2d 210, 211 (Tex.

1990) (per curiam)). A nonsuit of the

plaintiff’s cause of action “is not an adjudication of the rights of the

parties and does not extend to the merits of the action; it merely puts them

back in the position they were in before the lawsuit was brought.” Parker

v. JPMorgan Chase Bank , 95 S.W.3d 428 , 431–32 (Tex. App.—Houston [1st

Dist.] 2002, no pet.); Rexrode v. Bazar ,

937 S.W.2d 614, 619 (Tex. App.—Amarillo 1997, no writ) (“[A] non-suit is a

termination of the pleaded causes of action and asserted defenses without an

adjudication of their merits that returns the litigants to the positions they

occupied before the plaintiff invoked the court’s jurisdiction.”); see also Houston Indep. Sch. Dist. v. Morris ,

No. 01-10-00043-CV, 2011 WL 1936005, at *7 (Tex. App.—Houston [1st Dist.] May

19, 2011, no pet. h.) (“When the Taxing Units nonsuited their claims for

delinquent taxes, the Taxpayers’ affirmative defense became

moot . . . .”).

Although a nonsuit may vitiate certain interlocutory orders, rendering

them moot and unappealable, a plaintiff’s decision to nonsuit his claims does

not affect a defendant’s right to be heard on a pending claim for affirmative

relief. [3] See Tex. R. Civ. P. 162; Villafani v. Trejo , 251 S.W.3d 466, 469

(Tex. 2008).

Here,

Hicks first sued Waterman and Maersk on April 27, 2009, in Texas state

court. This case was assigned to the

270th District Court. Hicks did not

allege that Waterman and Maersk committed a tort in Texas, nor did he plead

specific bases for personal jurisdiction; instead, Hicks merely stated that

Waterman and Maersk were both foreign corporations “engaged in business in the

State of Texas.”

After

Waterman and Maersk removed the Hicks case to federal court, they answered and,

in their first defense, asserted that venue was improper in the Southern

District of Texas and that this district was an inconvenient forum because no

parties or witnesses reside in Texas.

Although Waterman and Maersk asserted nine other defenses, they did not

state an objection to personal jurisdiction in a separate defense. Waterman and Maersk did, however, answer the

specific allegations included in Hicks’s petition. Waterman and Maersk stated the following:

With regard to the

allegations contained in Paragraph II, subparagraph 1, it is admitted that the

plaintiff is a resident of the Royal Palm Beach, Florida. With respect to the allegations of Paragraph

II, subparagraphs 2 and 3, it is admitted that Waterman and [Maersk] are a

foreign corporations. The remaining

allegations contained in Paragraph II in the original petition are denied.

Paragraph II, subparagraphs 2 and 3, contained

Hicks’s statement that Waterman and Maersk “engaged in business in the State of

Texas.” Waterman and Maersk did not make

a separate motion objecting to personal jurisdiction under Federal Rule 12(b).

The court

for the Southern District of Texas remanded the Hicks case to the 270th

District Court on September 16, 2009. On

October 6, 2009, Ruiz filed a substantively identical suit in Harris County,

and this case was assigned to the 164th District Court. [4] Over the next two months, several of Ruiz’s

crewmembers, including Cronan, intervened in his suit. On December 1, 2009, Hicks nonsuited his case

and immediately intervened in the Ruiz case.

Waterman and Maersk filed a special appearance in the Ruiz case on December

18, 2009.

When

Hicks nonsuited his case, the effect of this action was to extinguish his

causes of action against Waterman and Maersk and to return the parties to the

positions they were in before Hicks invoked the jurisdiction of the trial

court. See Estate of Blackmon , 195 S.W.3d at 100 ; Parker , 95 S.W.3d at 431–32; Rexrode ,

937 S.W.2d at 619 . As a result of the

nonsuit, it was as if Hicks had never brought suit against Waterman and Maersk

in the first place. See Hagberg v. City of Pasadena , 224 S.W.3d 477, 484 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (“When a party nonsuits a legal action,

the parties are put back in the same positions as before the filing of the

suit.”); KT Bolt Mfg. Co. v. Tex. Elec.

Coops., Inc. , 837 S.W.2d 273, 275 (Tex. App.—Beaumont 1992, writ denied)

(“[A nonsuit] merely places [the parties] in the position that they were in

before the court’s jurisdiction was invoked just as if the suit had never been

brought.”); see also Bailey v. Gardner ,

154 S.W.3d 917, 920 (Tex. App.—Dallas 2005, no pet.) (holding same). Thus, even if Waterman and Maersk waived

their objections to personal jurisdiction in the Hicks case—a matter we need

not decide because Hicks’s nonsuit returned the parties to their pre-filing

positions—any waiver in the Hicks case was extinguished by the nonsuit and

cannot operate as a basis for denying Waterman’s and Maersk’s special

appearances in the Ruiz case.

Cronan,

citing the Fort Worth Court of Appeals’ decision in Reynolds v. Murphy , 266 S.W.3d 141 (Tex. App.—Fort Worth 2008, pet.

denied), argued that Rule 162 “does not vitiate the effect of a trial court’s

previous rulings or divest a trial court of personal jurisdiction over a

defendant to decide matters in a second suit that have already been decided in

a previously filed suit.” In Reynolds , after the trial court, on

remand, granted the defendant’s motion to strike the additional causes of

action asserted in the plaintiff’s third amended petition, filed after the

remand, the plaintiff nonsuited and appealed.

Id. at 144 . In response to the defendant’s argument on

appeal that the nonsuit rendered the case and appeal moot, the Fort Worth court

concluded that the trial court’s ruling essentially dismissed the newly

asserted claims with prejudice and was analogous to a partial summary judgment,

which is a ruling on the merits. Id. at 146 . As a result, the plaintiff’s nonsuit did not

vitiate the trial court’s ruling, and the court held that it had jurisdiction

over the appeal. Id.

A

nonsuit “cannot be used to disturb a court’s judgment on the merits of a

claim,” but the Texas Supreme Court has also held that a nonsuit can “vitiate

certain interlocutory orders.” See Villafani , 251 S.W.3d at 469 (citing

Estate of Blackmon , 195 S.W.3d at 101

(holding that nonsuit mooted interlocutory appeal of denial of plea to the

jurisdiction and deprived court of appeals of jurisdiction)); Le v. Kilpatrick , 112 S.W.3d 631, 634

(Tex. App.—Tyler 2003, no pet.) (holding that nonsuit vitiated order denying

special appearance). Here, neither the

state nor the federal district court had issued any interlocutory rulings, on

the merits or otherwise, at the time Hicks nonsuited his case. [5]

We

conclude that the nonsuit in the Hicks case had the effect of extinguishing any

waiver by Waterman and Maersk of their objections to personal

jurisdiction. Thus, we hold that appellees

cannot use any alleged waiver in the Hicks case to establish waiver of the

special appearances in the Ruiz case.

Because the special appearances were the first instruments filed by

Waterman and Maersk in the Ruiz case, we hold that they did not waive their

objections to personal jurisdiction. See Tex.

R. Civ. P. 120a(1) (“Such special appearance shall be made by sworn

motion filed prior to motion to transfer venue or any other plea, pleading or

motion . . . .”).

Evidentiary Objection

In its third issue, Waterman

contends that Peter Johnston, its Executive Vice President and an officer of

Waterman, had personal knowledge of the contents of his special appearance

affidavit and thus his affidavit was competent to support its special

appearance. We address this contention

before addressing the merits of Waterman’s special appearance.

Texas Rule of Civil Procedure

120a(3) provides that the affidavits, if any, in support of a special

appearance shall be “made on personal knowledge, shall set forth specific facts

as would be admissible in evidence, and shall show affirmatively that the affiant

is competent to testify.” Tex. R. Civ. P. 120a(3). A corporate officer may testify that

information concerning the company’s contacts with the forum state is within

his personal knowledge “without showing with particularity how he acquired that

knowledge.” M.G.M. Grand Hotel, Inc. v. Castro , 8 S.W.3d 403, 407 (Tex.

App.—Corpus Christi 1999, no pet.); see

also Exito Elecs. Co. v. Trejo , 99 S.W.3d 360, 372 (Tex. App.—Corpus

Christi 2003) (“With regard to the personal knowledge of corporate representatives,

officers such as vice-presidents, secretaries, and board presidents may testify

to facts regarding the corporation’s activities.”), rev’d on other grounds , 142 S.W.3d 302 (Tex. 2004) (per

curiam). Even if an affiant later states

that his affidavit testimony was based on his review of corporate business

records, the affiant’s “acknowledgement of the sources from which he gathered

his knowledge does not violate the personal knowledge requirement.” In re

E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 224 (Tex. 2004); see also Asshauer v. Glimcher Realty Trust ,

228 S.W.3d 922, 926 (Tex. App.—Dallas 2007, no pet.).

Peter Johnston is Waterman’s

Executive Vice President. In his

affidavit, he stated that he had personal knowledge of the facts contained in the

affidavit and that those facts were true and correct. Johnston averred that only two of the

crewmembers of the M/V MAERSK ALABAMA were Texas residents and that neither of

those crewmembers was a party to this lawsuit.

He also described the process of hiring crewmembers through various

unions and the isolated port calls by Waterman-owned ships to Texas ports. He further averred that Waterman did not have

an office, bank account, property, telephone listing, registered agent, or

employees in Texas. Johnston also stated

that Waterman did not advertise in Texas and was not registered to do business

in Texas.

During Johnston’s deposition,

Cronan’s counsel went through Johnston’s affidavit and asked him how he had

obtained knowledge of each specific averment.

For example, when asked how Johnston was aware of the residences of the

MAERSK ALABAMA crewmembers, Johnston responded that Waterman’s crewing

department provided him with that information, and Johnston then agreed with

counsel’s follow-up question that that information “was not something within

[his] personal knowledge before [he] went and asked a third party the

answer.” Johnston testified that he

obtained the following information from third parties before making his

affidavit: (1) whether Waterman was

registered to do business in Texas; (2) whether Waterman had a registered agent

or employees working in Texas; (3) whether Waterman had an office, bank

account, property, or phone listing in Texas; and (4) what the union protocols

were for hiring crewmembers. Appellees

contend that, because Johnston relied upon third parties and business records

to obtain this information, he lacked personal knowledge of the facts recited

in his affidavit, and therefore the affidavit was “no evidence” of Waterman’s

Texas contacts.

As a corporate officer, Johnston

may testify that facts concerning Waterman’s contacts with Texas are within his

personal knowledge without specifying how he obtained that knowledge. See

Castro , 8 S.W.3d at 407 ; see also

Trejo , 99 S.W.3d at 372 (holding that corporate officers can testify to

facts regarding corporation’s activities).

The fact that Johnston acknowledged that he learned of the specific

information concerning Waterman’s Texas contacts from third parties and

business records before making his affidavit “does not violate the personal

knowledge requirement.” See E.I. DuPont de Nemours , 136 S.W.3d

at 224 ; see also Asshauer , 228 S.W.3d

at 926 . We therefore hold that Johnston

had personal knowledge of the facts contained within his affidavit, and the

trial court could properly consider this affidavit when determining Waterman’s

special appearance. [6]

Personal Jurisdiction Standard of Review

Whether

a court has personal jurisdiction over a defendant is a question of law that we

review de novo. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 ; Glattly v. CMS Viron Corp. , 177 S.W.3d

438, 445 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Before determining the jurisdictional

question, the trial court must frequently resolve questions of fact. BMC

Software , 83 S.W.3d at 794 . If the

trial court does not issue findings of fact and conclusions of law, “all facts

necessary to support the judgment and supported by the evidence are

implied.” Id. at 795 . Under these

circumstances, we presume that the trial court resolved all factual disputes in

favor of its judgment. Tri-State Bldg. Specialties, Inc. v. NCI

Bldg. Sys., L.P. , 184 S.W.3d 242, 246 (Tex. App.—Houston [1st Dist.] 2005,

no pet.) (citing Am. Type Culture

Collection, Inc. v. Coleman , 83 S.W.3d 801, 806 (Tex. 2002)). These findings are not conclusive when the

appellate record includes both the clerk’s and reporter’s records, and a party

may challenge these findings for legal and factual sufficiency on appeal. Id. To the extent that the underlying facts are

undisputed, however, we conduct a de novo review. Glattly ,

177 S.W.3d at 445 .

Requirements for Personal Jurisdiction

Two

requirements must be met before a Texas court can exercise personal

jurisdiction over a nonresident defendant.

First, the Texas long-arm statute must authorize the exercise of

jurisdiction; and, second, the exercise of jurisdiction must comport with

federal due process guarantees. Coleman , 83 S.W.3d at 806 ; Tri-State , 184 S.W.3d at 248 .

Pursuant

to the long-arm statute, Texas courts can exercise personal jurisdiction over a

nonresident defendant that “does business” in Texas. Tex.

Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 2008); BMC Software , 83 S.W.3d at 795 . The statute lists three activities that

constitute “doing business” in Texas:

(1) contracting with a Texas resident when either party is to

perform the contract in whole or in part in Texas; (2) committing a tort in

whole or in part in Texas; and (3) recruiting Texas residents for employment

inside or outside of Texas. Tex. Civ. Prac. & Rem. Code Ann.

§ 17.042. This list, however, is

not exclusive, and the “doing business” requirement is limited only by the

requirements of federal due process. Koll Real Estate Group, Inc. v. Purseley ,

127 S.W.3d 142, 146 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Schlobohm v. Schapiro , 784 S.W.2d 355,

356 (Tex. 1990)); see also CSR Ltd. v.

Link , 925 S.W.2d 591, 594 (Tex. 1996).

In practice, these two conditions are combined into one requirement of

due process. Wright v. Sage Eng’g, Inc. , 137 S.W.3d 238, 247 (Tex. App.—Houston

[1st Dist.] 2004, pet. denied); see also

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C. , 815

S.W.2d 223, 226 (Tex. 1991) (“[W]e consider only whether it is consistent with

federal constitutional requirements of due process for Texas courts to assert in personam jurisdiction over Guardian

Royal.”).

With

respect to personal jurisdiction, federal due process requires two things. First, the non-resident defendant must have

purposefully established such minimum contacts with the forum state that the

defendant could reasonably anticipate being sued there. Glattly ,

177 S.W.3d at 447 (citing Burger King

Corp. v. Rudzewicz , 471 U.S. 462 , 475–76, 105 S. Ct. 2174 , 2183–84

(1985)). Second, if the non-resident

defendant has purposefully established minimum contacts with the forum state,

the exercise of personal jurisdiction must comport with traditional notions of

fair play and substantial justice. Id. (citing Burger King , 471 U.S. at 475–76, 105 S. Ct. at 2183–84). The defendant bears the burden of presenting

a “compelling case” that exercising jurisdiction over it would not be fair and

just. See id. at 450. Only in rare

cases will a Texas court’s exercise of personal jurisdiction not comport with

fair play and substantial justice when the non-resident defendant has

purposefully established minimum contacts.

Guardian Royal , 815 S.W.2d at

231 .

The

plaintiff bears the initial burden of pleading jurisdictional facts sufficient

to bring a non-resident defendant within the provisions of the Texas long-arm

statute. Kelly v. Gen. Interior Constr., Inc. , 301 S.W.3d 653, 658 (Tex.

2010). To establish jurisdiction over a

non-resident defendant, the plaintiff must plead a “connection between the

defendant[’s] alleged wrongdoing and the forum state.” Id.

at 655 ; Touradji v. Beach Capital P’ship,

L.P. , 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In a tort case, the plaintiff must plead that

the defendant committed a tortious act in Texas. Kelly ,

301 S.W.3d at 659 ; Touradji , 316

S.W.3d at 23 .

A nonresident defendant challenging

the court’s exercise of personal jurisdiction through a special appearance

bears the burden of negating all grounds for personal jurisdiction alleged by

the plaintiff. Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 574 (Tex.

2007). The defendant can negate

jurisdiction on either a factual or legal basis. Kelly ,

301 S.W.3d at 659 ; RSR Corp. v. Siegmund ,

309 S.W.3d 686, 699 (Tex. App.—Dallas 2010, no pet.). To negate personal jurisdiction on a factual

basis, the defendant can produce evidence showing that it has no contacts with

Texas, which the plaintiff may then counter with its own evidence. Kelly ,

301 S.W.3d at 659 . To negate

jurisdiction on a legal basis, the defendant can establish that, even taking

the alleged jurisdictional facts as true, “the defendant’s contacts with Texas

fall short of purposeful availment . . . or that

traditional notions of fair play and substantial justice are offended by the

exercise of jurisdiction.” Id. ; Siegmund ,

309 S.W.3d at 699 .

Minimum Contacts

A.

Standard of Review

In their first issue, appellants

contend that they are not subject to personal jurisdiction in Texas because

they have not established minimum contacts with Texas.

A non-resident defendant

establishes minimum contacts with Texas by purposefully availing itself of the

privileges and benefits inherent in conducting business in Texas. Michiana

Easy Livin’ Country, Inc. v. Holten , 168 S.W.3d 777, 784 (Tex. 2005); see also Kelly , 301 S.W.3d at 660

(“[J]urisdictional analysis always centers on the defendant’s actions and choices to enter the forum state and

conduct business.”) (emphasis in original).

There are three aspects to the “purposeful availment” inquiry: (1) we consider only the defendant’s

contacts with the forum state, not the unilateral activities of third parties

or persons; (2) the contacts relied upon must be purposeful, and not random,

isolated, or fortuitous; and (3) the defendant must seek some benefit,

advantage, or profit by availing itself of the jurisdiction. Holten ,

168 S.W.3d at 785 . When undertaking a

minimum contacts analysis, we consider the quality and nature of the

defendant’s contacts, rather than their number.

Trigeant Holdings, Ltd. v. Jones ,

183 S.W.3d 717, 725 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). The defendant’s activities, whether they

consist of acts inside or outside of Texas, must “justify a conclusion that the

defendant could reasonably anticipate being called into a Texas court.” Siegmund ,

309 S.W.3d at 698 (citing Coleman , 83

S.W.3d at 806 ).

The

minimum contacts analysis is further divided into specific and general

jurisdiction. [7] A court may exercise general jurisdiction if

the defendant’s contacts with the forum state are continuous and systematic,

even if the cause of action did not arise out of or relate to the defendant’s

contacts with the forum. Glattly , 177 S.W.3d at 447 . The minimum contacts analysis involved when

general jurisdiction is asserted is more demanding than when a plaintiff

asserts specific jurisdiction. Coleman , 83 S.W.3d at 807 . In a general jurisdiction analysis, we do not

view each contact in isolation, but instead investigate, compile, sort, and

analyze all contacts “for proof of a pattern of continuing and systematic

activity.” Id. at 809 . To satisfy the

requirements of general jurisdiction, “[u]sually, the defendant must be engaged

in longstanding business in the forum state, such as marketing or shipping

products, or performing services or maintaining one or more offices there;

activities that are less extensive than that will not qualify for general in

personam jurisdiction.” PHC-Minden, L.P. v. Kimberly-Clark Corp. ,

235 S.W.3d 163, 168 (Tex. 2007) (quoting 4 Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure

§ 1067.5 (2007)); Touradji , 316

S.W.3d at 25 .

B.

Waterman’s Contacts with Texas

On appeal, appellees contend that

Waterman has “continuous and systematic” contacts with Texas, which subject it

to general jurisdiction. [8] Appellees do not dispute Waterman’s

contentions that: (1) it is not

registered to do business in Texas; (2) it does not have a registered agent,

office, property, mailing address, bank account, or phone listing in Texas; (3)

it does not maintain business records in Texas; (4) it has not received revenue

from a Texas entity or person; (5) it has not solicited business in Texas

or had a Texas customer; and (6) it has not marketed its services or

directed advertising toward Texas.

1. Calls upon Texas Ports

During the jurisdictional discovery

period, five Waterman vessels made a total of eighteen calls on Texas ports

while under time-charter to third-party customers of Waterman. In his deposition, Peter Johnston, Waterman’s

Executive Vice President, testified that, under a time charter, Waterman is

responsible for crewing the vessel, performing maintenance, ensuring regulatory

compliance, issuing orders to the master and the crew, operating the vessel,

and determining the particular course.

The time-charterer gives the master the “voyage instructions” : where to

go, the ports to call upon, the specific cargo to unload at particular ports,

and the itinerary for the voyage.

Johnston stated that “most” of Waterman’s vessels are time-chartered to

third parties, and all of the calls upon Texas ports were made at the direction

of third-party charterers. For example,

the Waterman vessel GREEN BAY made one call on a Texas port in May 2009 at the

direction of the federal government to pick up military cargo located in Texas.

We do not construe Waterman’s Texas

port calls as “substantial contacts of a quality sufficient to establish a

court’s general jurisdiction over a nonresident defendant.” Uche v.

Allison , 264 S.W.3d 90, 100 (Tex. App.—Houston [1st Dist.] 2007, pet. denied);

see also Asarco, Inc. v. Glenara, Ltd. ,

912 F.2d 784, 787 (5th Cir. 1990) (finding no jurisdiction and discounting

quality of twenty calls on Louisiana ports because managing company did not

choose destination of particular ports); Nicolaisen

v. Toei Shipping Co. , 722 F. Supp. 1162, 1165 (D.N.J. 1989) (seventeen port

calls during four year period did not establish general jurisdiction when made

at direction of third-party time-charterer).

The quality of port calls as a contact is further diminished when a

third-party determines the location of the call. See

Farwah v. Prosperous Maritime Corp. , 220 S.W.3d 585, 591 (Tex.

App.—Beaumont 2007, no pet.) (“Generally, with respect to vessel owners and

managers who do not direct the itinerary of the vessel, port calls are not

construed as substantial contacts of a quality sufficient to establish a

court’s general jurisdiction over a nonresident defendant.”); see also Coleman , 83 S.W.3d at 809

(discounting quality of defendant’s attendance at conferences in Texas when

defendant did not choose location); Reyes

v. Marine Drilling Cos. , 944 S.W.2d 401 , 402–04 (Tex. App.—Houston [14th

Dist.] 1997, no writ) (discounting quality of at least 200 trips to Texas to

perform inspections required under contractual obligations with federal

government).

Waterman made eighteen port calls

over a nearly seven year time period, which is better characterized as sporadic

rather than “continuous and systematic” contacts. See

Asarco , 912 F.2d at 787 . Furthermore, Waterman presented evidence

that it called upon Texas ports only at the direction of third-party time‑charterers,

who determined the specific destinations for the vessel, and that Waterman did

not make the decision to take its vessels to Texas. See

Farwah , 220 S.W.3d at 592 . We

therefore conclude that the third-party time-chartered calls upon Texas ports

by Waterman vessels are insufficient, standing alone, to establish general

jurisdiction over Waterman because Waterman “lacked control over the decisions

that led to the vessels calling on Texas ports.” Id.

2. Purchases of Goods and Services from Texas

Vendors

Appellees further contend that

Waterman paid “millions” to Texas vendors while its vessels were in Texas

ports, it contracted with Texas residents and companies, and it had vessels and

barges inspected and repaired in Texas ports. [9]

Mike Cameron, Waterman’s Vice

President of Fleet Services, testified in his deposition that when a Waterman

vessel calls upon a port, Waterman appoints a “port agent” and authorizes that

agent to “carry out the necessary husbanding services for the vessel” while it

is in port. [10] According to Cameron, Waterman’s Purchasing

Department, not the port agent, handles the purchase of fuel, stores, food, and

other supplies while in port. During the

jurisdictional discovery period, Waterman purchased $2,000,000 in goods and

services, including vessel repairs, while its vessels were located in Texas

ports. All of Waterman’s purchases and

contracts with Texas vendors occurred in conjunction with third-party

time-chartered port calls or federal government contracts.

Cameron also testified that

Waterman paid for inspections and repairs to barges located in Texas

ports. Cameron stated that Waterman

contracted with the federal government to deliver food-aid cargo, and the

United States Department of Agriculture required inspections and repairs to

barges before loading the cargo to ensure that the barges were in an acceptable

condition for the transport. Waterman

bid on the available food-aid contracts with the federal government “knowing

that a number of the shipments would be out of Texas ports.” According to Cameron, Waterman engaged in

these shipments “very infrequent[ly].”

Cameron testified that the government, not Waterman, determines the

particular port from which the cargo is loaded onto Waterman barges and

vessels.

In his affidavit, Johnston averred

that Waterman purchased two vessels from a Dutch company in 2004, both of

which, the BUENOS AIRES and the SANTA CRUZ, were located in Houston at the time

of purchase. These vessels remained in

the Port of Houston for approximately three weeks while they received “minor

modifications” and were re-flagged to the United States flag.

Mere purchases or their equivalent,

even if occurring at regular intervals, are insufficient to warrant the

exercise of personal jurisdiction over the non-resident defendant when the

purchases do not relate to the cause of action.

See Helicopteros Nacionales de

Columbia, S.A. v. Hall , 466 U.S. 408, 418 , 104 S. Ct. 1868, 1874 (1984); PHC-Minden , 235 S.W.3d at 170 ; Coleman , 83 S.W.3d at 808 ; BMC Software , 83 S.W.3d at 798 (“BMCB’s

unrelated purchases in Texas from BMCS are not the type of contacts that

justify a finding that BMCB could have ‘reasonably anticipate[d] being haled

into court’ here.”); Farwah , 220

S.W.3d at 593 (“Even if the evidence supported a finding that Valles conducted

business on as many as 265 days during that twenty-seven month period, the

nature of the contacts, consisting of the purchase of necessary services and

supplies for the vessel, is not sufficiently continuous and not of a sufficient

quality to satisfy the requirements of the Constitution.”). Repairs, including the purchase of inspection

and re-flagging services, are construed as “purchases” under Helicopteros , and not as separate and

distinct contacts. See HMS Aviation v. Layale Enters., S.A. , 149 S.W.3d 182 , 194–95

(Tex. App.—Fort Worth 2004, no pet.).

We also consider whether “the

choice to do business in Texas” was Waterman’s or “merely a coincidence because

of another entity’s decision to direct the vessels to Texas.” See

Farwah , 220 S.W.3d at 594 . In Farwah , the Beaumont Court of Appeals

held that the only reason Valles purchased supplies and entered into contracts

in Texas was that Standard Tankers, the charterer, chose Texas ports of call

and, therefore, this arrangement “diminish[ed] the quality of Valles’s

contacts” and supported a ruling that Valles did not purposefully direct

business activity to Texas. Id.

Here, during the jurisdictional

discovery period, Waterman purchased approximately $2,000,000 in necessary

goods and services, including inspection and repair services, from Texas

vendors. Waterman’s special appearance

evidence indicates that Waterman made these purchases when its vessels called

upon Texas ports at the direction of third-parties and when the federal

government directed Waterman to load food-aid cargo in Texas ports and

Waterman’s barges needed inspection and repairs pursuant to its contractual

obligations with the government. In each

instance where Waterman contracted with third-parties to transport food-aid

cargo, the commodities were located in Houston, but Waterman’s vessels were

located either in New Orleans or, on one occasion, Galveston. Waterman had to use barges to transport the

commodities to its vessels. Because the

commodities included food, both the commodities and the barges had to be

inspected to ensure that Department of Agriculture standards were met. The only reasonable place to inspect the

commodities and barges prior to loading in the Port of Houston was the

shipyards and inspection stations located in and around that port. There is no evidence that Waterman obtained

barge inspections in Texas that were not connected to any of its food-aid

transport contracts. When Waterman

needed to load food-aid cargo in Texas and the barge needed repairs before the

voyage, Waterman contracted for repair services in Texas as a “cost-effective

measure.” Appellees argue that this

statement “undermines” Waterman’s assertion that its contacts with Texas were

at the direction of a third party.

Even if Waterman obtained repairs

to its vessels and barges in Texas, these contracts and purchases, by

themselves, are still insufficient to support the exercise of general

jurisdiction. See Helicopteros , 466 U.S. at 418 , 104 S. Ct. at 1874 ; HMS Aviation , 149 S.W.3d at 194–95

(holding purchase of repair services insufficient to support general

jurisdiction even though HMS Aviation brought planes to Texas solely for

purpose of obtaining repairs). There is

no evidence that Waterman entered into any other contracts with Texas

residents. We therefore conclude that

Waterman’s $2,000,000 in purchases of goods and services from Texas vendors,

standing alone, does not establish general jurisdiction.

Appellees additionally assert that

Waterman regularly contacted Texas residents, such as the Houston office of the

American Bureau of Shipping (“ABS”), “regarding vessel inspections, surveys,

testing, and other services performed on Waterman’s vessels.” Minimum contacts “may not be satisfied by

merely engaging in communications with a Texas corporation during performance

of a contract.” Credit Commercial de France, S.A. v. Morales , 195 S.W.3d 209 ,

220–21 (Tex. App.—San Antonio 2006, pet. denied); see also Freudensprung v. Offshore Technical Servs., Inc. , 379 F.3d

327, 344 (5th Cir. 2004) (“Moreover, this Court has repeatedly held that the

combination of mailing payments to the forum state, engaging in communications

related to the execution and performance of the contract, and the existence of

a contract between the nonresident defendant and a resident of the forum state

are insufficient to establish the minimum contacts necessary to support the

exercise of specific personal jurisdiction over the nonresident

defendant.”). Any communication between

Waterman and ABS or any other entity providing services to Waterman’s vessels

is merely incidental to “developing and carrying out the contractual

obligations,” and therefore does not constitute purposeful availment of the

benefits and protection of Texas law. See Morales , 195 S.W.3d at 220–21.

3. Employment of Texas Residents

Appellees contend that Waterman has

employed hundreds of Texas residents since 2003 and that it had a “continuing

contractual relationship” with a Texas crewmember of the MAERSK ALABAMA, and

therefore this factor supports the exercise of general jurisdiction. Waterman acknowledges that it has employed

approximately 200 Texas mariners since 2003 and that two of the crewmembers on

the MAERSK ALABAMA were Texas residents, but it contends that this is not a purposeful

contact because it hired all mariners pursuant to union protocols, it had

limited discretion to reject a mariner chosen by the unions, and it could not

solicit or recruit employees from a particular state.

In his deposition, Mike Cameron

testified regarding the procedure for hiring mariners for Waterman’s

vessels. Cameron testified that Waterman

contracts with three seafarers’ unions.

When Waterman needs a crew, it sends a job order to the national union

headquarters. The national union then

contacts the union hall located closest to the vessel’s next port. The local union hall then posts a “job call,”

and the union members can bid on which jobs they want. The national union then determines which

member will fill which position and notifies Waterman. Waterman reviews the member’s paperwork,

including his licenses and passports, and also requires a physical. If the member’s paperwork is in order and he

passes the physical, Waterman hires the member for the particular voyage. Waterman can decline to hire a crewmember

only under limited circumstances, which do not include residence of the

crewmember. Johnston stated that

Waterman had to replace the entire crew of the BUENOS AIRES after Waterman

purchased the vessel and that, because the vessel was located in Houston at the

time of the purchase, the national unions hired out of Texas union halls.

Cameron also testified that

Waterman can hire “permanent employees” for certain positions on its vessels,

such as the captain, pursuant to its union contracts. In these circumstances, after the mariner has

worked on Waterman vessels, Waterman may offer a permanent position to

him. The mariner has the right to

decline, and the permanent position must be approved by the union. Cameron testified that the first assistant

engineer on board the MAERSK ALABAMA was a permanent employee who resided in

Texas.

Employment of 200 Texas resident

mariners does not constitute a purposeful contact with Texas. See

Johns Hopkins Univ. v. Nath , 238 S.W.3d 492, 501 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied); All Star

Enter., Inc. v. Buchanan , 298 S.W.3d 404, 416 , 419 n.12 (Tex. App.—Houston

[14th Dist.] 2009, no pet.) (holding that “a third party’s choice of residence,

whether a royalty-interest owner or an employee, is not conduct by the

nonresident corporation directed at the forum state”). Waterman does not require its mariners to

live in Texas — those mariners that are

Texas residents live here “of their own accord.” See

Nath , 238 S.W.3d at 501 . When

determining whether a defendant established purposeful contacts with Texas, we

consider only the defendant’s own actions.

Holten , 168 S.W.3d at

785 . Evidence that Waterman employs

Texas residents on its vessels is not sufficient for general jurisdiction

because “it demonstrates only the unilateral choices of third parties who have

some connection to [the defendant], rather than contacts and conduct by [the

defendant].” See Buchanan , 298 S.W.3d at 416 .

4. Payment of Texas Franchise Taxes

Appellees further contend that

Waterman’s payment of Texas franchise taxes indicates that it does business in

Texas and has continuous and systematic contacts with Texas.

Waterman acknowledges that it filed

Texas franchise tax returns, but it contends that its franchise tax liability

was premised on the number of days Waterman vessels spent in Texas ports per

year, and not on revenue received in Texas or from Texas companies. Miguel Estrada, Waterman’s Chief Financial

Officer, testified in his deposition that Waterman files franchise taxes for

every state in which a Waterman vessel goes into port or operates within the

state’s waters. According to Estrada,

stopping in a port to load or unload cargo and traversing the state’s waters

triggers an “apportionment” for franchise tax liability purposes. Waterman bases its filings on the amount of

time spent in Texas ports per year, and Estrada characterized the amounts that

Waterman pays as “de minimus” and “immaterial.”

As examples, Estrada stated that Waterman’s Texas franchise tax liability

for 2006 was $1400 and the apportionment percentage for 2005 was only

0.7%. Waterman contends that this

percentage reflects that Waterman vessels only sporadically called upon Texas

ports in 2005. Waterman did not receive

any revenue in Texas, nor did it receive any revenue from a Texas company.

Payment of franchise taxes does not

automatically establish personal jurisdiction, but only “potentially subjects a

foreign corporation to jurisdiction in the state.” Asshauer ,

228 S.W.3d at 933 ; Conner v.

ContiCarriers & Terminals, Inc. , 944 S.W.2d 405 , 417–18 (Tex.

App.—Houston [14th Dist.] 1997, no writ) (plurality op.).

We conclude that Waterman’s payment

of franchise taxes, which is based solely on the number of days Waterman

vessels are in Texas ports per year and does not constitute a significant

portion of its tax liability, does not establish general jurisdiction.

5. Trips to Texas by Waterman Employees

As further evidence that Waterman

has “continuous and systematic” contacts with Texas, appellees point to Peter

Johnston’s trip to Texas to accept delivery of three vessels, “routine trips”

to Texas by a port engineer when Waterman vessels need repairs while in Texas

ports, and trips to meet with ABS employees in Houston.

Waterman acknowledges that Johnston

visited Texas in 2004 to accept delivery of the BUENOS AIRES and the SANTA

CRUZ, which were located in Houston at the time Waterman purchased the vessels

from a Dutch company. Johnston also

testified that he once visited ABS in Houston and that Waterman’s port

engineers may travel to Texas ports if a vessel located in Texas needs

repairs. Other than his own trips,

Johnston could not identify specific trips to Texas by Waterman employees. Johnston did not know the frequency with

which the port engineer trips occurred, although he disagreed that these trips

occurred on a “routine basis.” He noted

that most issues with ABS are resolved by telephone or e-mail and not by

in-person visits to Houston.

Occasional travel to Texas is

insufficient by itself to establish continuous and systematic contact with the

state. See Uche , 264 S.W.3d at 99 (holding that doctor’s weekly trips to

Texas onboard cruise ship embarking from Galveston were insufficient to

constitute continuous and systematic contact); see also Helicopteros , 466 U.S. at 418 , 104 S. Ct. at 1874 (holding

that trips to Texas for training were “part of the package of goods and

services purchased by Helicol from Bell Helicopter” and did not constitute

sufficient contacts to support general jurisdiction).

Here, any trips to Texas by port

engineers were related to Waterman’s purchase of repair and inspection services

from ABS and other Texas entities.

Johnston traveled to Texas to accept delivery of the BUENOS AIRES and

the SANTA CRUZ because the vessels were fortuitously located in Texas at the time

Waterman purchased the vessels. See Transportes Aereos de Coahuila, S.A. v.

Falcon , 5 S.W.3d 712, 720 (Tex. App.—San Antonio 1999, pet. denied) (“With

regard to the few trips that were made by TACSA to retrieve parts and to take

delivery of the aircraft, we note that the number of those trips was far less

than the trips taken into Texas in the Helicopteros

case and far less substantial in nature. . . . In the

instant case, personnel were sent to Texas once to take delivery of the

aircraft and infrequently thereafter to purchase supplies, parts and fuel.”); cf. Coleman , 83 S.W.3d at 809 (holding

that five trips to Texas to attend national conferences did not support general

jurisdiction when defendant did not select location of conferences); Reyes , 944 S.W.2d at 404 (holding same

for 204 trips to Texas for inspections and reviews required by federal

contractual obligations).

We conclude that Waterman

employees’ trips to Texas were sporadic — such as Johnston’s trip to take delivery of the vessels — or part and parcel of Waterman’s service

contracts with Texas vendors and ABS — the trips by the port engineers.

The trips to Texas in the performance of Waterman’s contracts with Texas

vendors, while a factor weighing in favor of jurisdiction, are not sufficient

by themselves to establish general jurisdiction over Waterman. See

Falcon , 5 S.W.3d at 720 (comparing trips to Texas in that case — involving delivery of aircraft and purchases of

supplies, parts, and fuel — with trips

to Texas in Helicopteros — training of personnel — where trips did not establish general

jurisdiction).

6. Waterman’s Website

Appellees further contend that

Waterman maintains an interactive website sufficient to support general

jurisdiction, and that Waterman produced no evidence that it only had a passive

internet presence.

Internet use is characterized as

falling within three categories on a sliding scale for purposes of establishing

personal jurisdiction. Choice Auto Brokers, Inc. v. Dawson , 274

S.W.3d 172 , 177–78 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Michel v. Rocket Eng’g Corp. , 45 S.W.3d

658, 677 (Tex. App.—Fort Worth 2001, no pet.).

At one end of the sliding scale are websites that are “clearly used for

transacting business over the Internet,” such as entering into contracts, and

the knowing and repeated transmission of files of information. Dawson ,

274 S.W.3d at 177 . These websites may be

sufficient to establish minimum contacts with a state. Id. On the other end of the scale are “passive”

or “informational” websites that are used only for purposes such as

advertising, and “are not sufficient to establish minimum contacts even though

they are accessible to residents of a particular state.” Id.

at 178 . Between the extremes of the

scale are “interactive” websites that allow for the “exchange of information

between a potential customer and a host computer.” Id. We determine jurisdiction in situations

involving an interactive website by examining the degree of interaction between

the parties. Id. ; Karstetter v. Voss ,

184 S.W.3d 396, 405 (Tex. App.—Dallas 2006, no pet.).

In Michel , the Fort Worth Court of Appeals determined that Rocket’s

website was “passive” because, although potential customers could contact

Rocket via an e-mail link on the website, Rocket could not directly respond

over the Internet to the potential customer.

Michel , 45 S.W.3d at 678

(citing Mink v. AAAA Dev. LLC. , 190

F.3d 333, 336 (5th Cir. 1999)). Instead,

a Rocket sales representative would follow up with the potential customer using

the contact information that the customer provided in its e-mail. Id. ;

Mink , 190 F.3d at 337 (“There is no

evidence, however, that the website allows AAAA to do anything but reply to

e-mail initiated by website visitors.”); see

also Buchanan , 298 S.W.3d at 427 (holding that, although users could submit

employment applications, post comments, and subscribe to company’s “feed,” no

evidence existed that company could respond to applications, comments, or

inquiries through website, and therefore website was “too passive to establish systematic

and continuous contacts”). In Jackson v. Hoffman , the Fourteenth Court

of Appeals addressed whether a website that provided a phone number, an e-mail

address, and a “contact form” constituted an additional contact to be

considered in determining jurisdiction. Jackson , 312 S.W.3d 146 , 154–55 (Tex.

App.—Houston [14th Dist.] 2010, no pet.).

The court concluded that because there was no evidence regarding whether

the host computer could respond to users via the “contact form,” the website

was merely a “passive form of advertising” and the contact form and contact

information were not enough to move the website into the “interactive” category

on the sliding scale. Id.

When asked in his deposition

whether he agreed that Waterman “actively solicits business” from its website,

Johnston disagreed and stated that Waterman posts information on its website,

and that potential customers could read that information and then contact

Waterman. Johnston did not believe that

customers could contract with Waterman via its website, but, instead, customers

could click on a link on the website and send an e-mail to Waterman

representatives with any inquiries. There

is no evidence regarding how Waterman responds to e-mail inquiries sent to it

through its website, such as whether it can respond through the website itself

or whether it must follow up via the customer’s personal contact information.

The evidence establishes that

Waterman’s website provides contact information, but does not allow potential

customers to book cargo through the website, or enter into contracts through

the website. There is no evidence that

Waterman can respond to customer inquiries through the website. See

Jackson , 312 S.W.3d at 154–55 (“Without [evidence of how the host computer

responds], we conclude appellee’s website is a passive form of advertising.”); Buchanan , 298 S.W.3d at 427 .

We conclude that, like the websites

in Michel , Jackson , and Buchanan ,

Waterman’s website is “passive advertising via the Internet and not a

purposeful activity directed toward [Texas] residents.” Michel ,

45 S.W.3d at 678 ; see also Jackson ,

312 S.W.3d at 154–55; Buchanan , 298

S.W.3d at 427 . We therefore do not

consider Waterman’s website as an additional contact for determining whether

general jurisdiction exists. [11]

7. Totality of Waterman’s Contacts

Although none of Waterman’s

contacts with Texas, standing alone, is sufficient to establish general

jurisdiction, when determining whether Waterman has sufficient minimum contacts

to support the exercise of personal jurisdiction, we must investigate, compile,

sort, and analyze all contacts “for proof of a pattern of continuing and

systematic activity.” See Coleman , 83 S.W.3d at 809 . General jurisdiction requires “a showing of

‘substantial activities’ within the forum state, and those activities must

still be ‘purposefully’ directed into the forum state.” Michel ,

45 S.W.3d at 680 (quoting Bearry v. Beech

Aircraft Corp. , 818 F.2d 370, 374 (5th Cir. 1987)). We consider the nature and the quality of

Waterman’s contacts with Texas, not the “sheer number” of contacts. Id.

(citing Guardian Royal , 815 S.W.2d at

230 n.1).

When determining whether a

defendant’s contacts rise to the level of “continuous and systematic” activity

necessary to support general jurisdiction, Texas courts often compare the

defendant’s contacts to those in Perkins

v. Benguet Consolidated Mining Co. , 342 U.S. 437 , 72 S. Ct. 413 (1952) and Helicopteros , which are on opposite ends

of the general jurisdiction spectrum. See Coleman , 83 S.W.3d at 809 . In Perkins ,

the president and general manager of the defendant company moved his office and

company files from the Philippines to Ohio during World War II. 342 U.S. at 448 , 72 S. Ct. 413 . The president conducted all of the

corporation’s activities from Ohio, including holding director’s meetings,

depositing corporate funds into Ohio bank accounts, engaging in corporate

correspondence from his Ohio office, using an Ohio office to act as the

corporation’s transfer agent, and supervising the rehabilitation of Philippines

properties from Ohio. Id.

The Supreme Court concluded that Ohio could exercise general

jurisdiction over the corporation because it had, through its president, “been

carrying on in Ohio a continuous and systematic, but limited, part of its

general business.” Id. at 438 .

In contrast, in Helicopteros , the Supreme Court found

that Helicol did not have sufficient minimum contacts with Texas, even though

its president traveled to Texas and negotiated a contract for transportation in

Texas, purchased over $4,000,000 in helicopters and related equipment from

Texas vendors “at regular intervals,” and sent pilots and personnel to Texas

for training. Helicopteros , 466 U.S. at 411 , 104 S. Ct. at 1868 . Helicol was never authorized to do business

in Texas; it did not have a registered agent in Texas; it did not perform

helicopter operations in Texas, nor had any of its products ever reached Texas;

it did not solicit business in Texas; it did not have any employees based in

Texas; it never recruited employees from Texas; it did not own real or personal

property in Texas; it did not maintain an office in Texas; and it maintained no

records in Texas. Id. The Supreme Court

concluded that Helicol’s contacts with Texas did not “constitute the kind of

continuous and systematic general business contacts the Court found to exist in

Perkins .” Id.

at 416, 104 S. Ct. at 1873 .

When considering the totality of

Waterman’s contacts with Texas, we conclude that Waterman’s contacts are

similar to those of Helicol in Helicopteros . Although Waterman has made eighteen port

calls in Texas, paid Texas vendors approximately $2,000,000 for goods and

services, paid franchise taxes, employed Texas residents as mariners through

the union hiring policies, and had vessels and barges repaired and inspected in

Texas, the majority of these contacts occurred because third-party

time-charterers or the federal government directed Waterman vessels to visit

Texas ports. Although the quantity of

Waterman’s contacts with Texas may suggest that Waterman has a significant

relationship with Texas, when examining the quality of those contacts, it is

clear that Waterman’s connection with Texas is sporadic and largely

fortuitous. See Coleman , 83 S.W.3d at 809–10.

Waterman’s contacts do not demonstrate that it engages in “substantial

activities” that are purposefully directed to Texas. Michel ,

45 S.W.3d at 680 .

Appellees, however, cite the Dallas

Court of Appeals’ decision in Siegmund

and the Fourteenth Court of Appeals’ decisions in Buchanan and Barker v.

Lescroart , No. 14-06-00125-CV, 2007 WL 445282 (Tex. App.—Houston [14th

Dist.] Feb. 13, 2007, no pet.) (mem. op.), in which the courts found that

general jurisdiction exists, for the proposition that Waterman has more

significant contacts with Texas than each of those three defendants. We conclude that Siegmund , Buchanan , and Barker are distinguishable.

In Siegmund , Siegmund, one of PlaMetCo’s three employees, conducted

business for the company out of his home in Texas. Siegmund ,

309 S.W.3d at 707 . The Dallas Court of

Appeals observed that PlaMetCo’s business focused on providing “international

marketing and management services” to a company called Inppamet, and Siegmund,

the “Director International Business Development,” was the only employee

providing services to Inppamet. Id.

The Dallas Court concluded that, through Siegmund, PlaMetCo had an

“actual physical presence” in Texas, and the activities that Siegmund conducted

“continually and systematically” were of “such substantial nature and quality

as to justify suit against PlaMetCo in Texas.”

Id . at 708.

Appellees argue that the result in Siegmund compels a finding of general

jurisdiction over Waterman because, while PlaMetCo only had Siegmund as a

resident employee, Waterman employs hundreds of Texas residents, had two Texas

residents on board the MAERSK ALABAMA, and appoints port agents to act on its

behalf during its Texas port calls.

Unlike in Siegmund , Waterman does not maintain any office in Texas, let alone

one that conducts a substantial part of its business. Waterman’s employment of Texas mariners on

board its vessels is merely fortuitous and is the result of the unilateral acts

of third parties: (1) those of the

national unions, who contact Texas union halls whenever a Waterman vessel needs

crewmembers and a Texas port happens to be the next destination and (2) those

of the mariners themselves who reside in Texas and respond to union hiring

calls. Although Waterman appoints Texas

residents to act as port agents, these Texas residents are appointed as port

agents only because third-party time-charterers have made a decision to stop at

Texas ports. Waterman’s special

appearance evidence reflects that Waterman vessels only sporadically stop in

Texas: eighteen times over a period of

nearly seven years.

In Barker , Lescroart purchased a large amount of stock from Texas

residents, became a director of a Texas corporation, and agreed to provide

consulting services for a Texas corporation that required him to travel to

Texas to complete his contractual obligations. Barker , 2007 WL 445282 , at

*5. The Fourteenth Court of Appeals held

that Lescroart “deliberately created continuing obligations between himself and

residents of Texas” and therefore “manifestly availed himself of the privilege

of conducting business here.” Id.

By contrast, Waterman’s contracts

with Texas vendors to provide goods and services, including repairs and

inspections, during the jurisdictional period were limited to times when

Waterman vessels called upon Texas ports at the direction of third parties and

to “infrequent” contracts with the federal government to load food-aid cargo in

Texas. These calls occurred sporadically

over the course of nearly seven years.

Waterman did not enter into a “continuing” contractual obligation such

as Lescroart’s agreement to provide consulting services and sit on the board of

directors of a Texas corporation.

Although Waterman entered into contracts with Texas vendors, mere

purchases standing alone, even if done at regular intervals, are not enough to

establish general jurisdiction in a cause of action not related to the purchase

transactions. See Helicopteros , 466 U.S. at 418 , 104 S. Ct. at 1874 .

Appellees also cite to the

Fourteenth Court of Appeals’ decision in Buchanan ,

in which the defendant was registered to do business in Texas, had a registered

agent in Texas, and had previously had an office in Texas. 298 S.W.3d at 419 . Although, as appellees note, Waterman has

employed Texas residents as port agents and as mariners, Waterman has never

registered to do business in Texas, it does not have a registered agent in

Texas, and it has never had an office in Texas.

Buchanan , therefore, does not

support the exercise of general jurisdiction over Waterman.

We hold that Waterman’s special

appearance evidence does not establish that Waterman has “continuous and

systematic” contacts with Texas such that due process will allow Texas courts

to exercise general personal jurisdiction over it.

C.

Maersk’s Contacts with Texas

In their third issue, appellees

contend that Maersk also has continuous and systematic contacts with Texas

sufficient to establish general personal jurisdiction. Because a portion of Maersk’s contacts with

Texas are of the same nature, although in greater quantity, as the contacts

already discussed and analyzed for Waterman, we briefly discuss these contacts first.

1. Maersk’s Contacts in Common with Waterman

Like Waterman, Maersk vessels call

upon Texas ports at the direction of third-party time-charterers. In his deposition, Michael Hopkins, Maersk’s

general counsel and Senior Vice President of Contracts and Procurement,

testified that Maersk vessels made 612 calls upon Texas ports during the

jurisdictional discovery period of nearly seven years, generally calling upon

Texas ports twice a week. [12] According to Hopkins, Maersk was under time

charter to its ultimate parent company, A.P. Moller Maersk (“APMM”), for the

“majority” of those calls, and APMM directed Maersk vessels to stop in

Houston. The remainder of the port calls

were made at the direction of the federal government or other shippers. To Hopkins’ knowledge, Maersk never made the

decision to stop at a Texas port, and Maersk vessels would not have called upon

Texas ports had they not been directed to do so by third parties. Port calls, especially those made at the

direction of a third party, do not constitute sufficient contacts to establish,

by themselves, general jurisdiction. Uche , 264 S.W.3d at 100 ; Farwah , 220 S.W.3d at 591–92. However, here the majority of the port calls

were made under time-charter to Maersk’s own parent company, not an independent

third party. Moreover, the evidence

establishes that over 600 calls were made by Maersk at such direction during

the jurisdictional period, generally on a routine two-week basis.

Maersk also entered into contracts

with Texas vendors for goods and services while its vessels were located in

Texas ports. During the jurisdictional

discovery period, Maersk paid $145,066,543.53 to Texas vendors, including

payments for repairs and maintenance to Maersk vessels made while in Texas

ports. [13] Purchases of goods and services, however,

even if occurring regularly, are insufficient by themselves to warrant the

exercise of personal jurisdiction over the nonresident defendant when the

purchases do not relate to the cause of action.

See Helicopteros , 466 U.S. at

418 , 104 S. Ct. at 1874 ; Reyes , 944

S.W.2d at 403, 404 (finding no general jurisdiction over defendant who

purchased more than $183,000,000 in goods from at least 471 Texas residents and

companies).

Maersk also employed 627 Texas

resident mariners. Dennis Houghton,

Maersk’s Marine Personnel Director, testified that, to provide a crew for

Maersk vessels, Maersk uses the same procedure that Waterman does: Maersk contacts the national union, which

then contacts the local union halls and allows mariners to bid on the job they

want. The unions select the mariners,

and Maersk may reject a mariner only in limited circumstances. Houghton also testified that, occasionally,

if a Maersk vessel is calling on a Texas port and it needs a crewmember

immediately, it contacts the local union hall directly before contacting the

national union office to give the local office a “heads up” that a crewmember

is needed. According to Houghton, Maersk

contacted the local hall for this purpose “sporadically,” or about two or three

times per year. The state of residency of

Maersk’s mariners is not a purposeful contact by Maersk directed toward Texas — Maersk does not control the states in which the

mariners reside, nor does it control who the national union selects to fill the

open position. See Nath , 238 S.W.3d at 501 ; Buchanan ,

298 S.W.3d at 416 , 419 n.12.

Furthermore, Maersk’s occasional direct contacting of a Texas union hall

to immediately replace a crewmember is fortuitous, and depends upon where the

vessel is located and the nearest port relative to the vessel’s location at the

time the need to replace the crewmember arises.

We conclude that Maersk does not purposefully direct its hiring and

employment activities towards Texas residents.

This does not constitute an act purposefully directed toward Texas.

Maersk also paid Texas franchise

taxes for 2003–2009. Steve Hadder,

Maersk’s Vice President of Finance, testified in his deposition that Maersk’s

franchise tax liability is calculated by determining the number of days each

Maersk vessel is in a Texas port, divided by the number of days in the

year. This amount is then multiplied by

the “chartering revenue” for the vessel, which equals the percentage of revenue

for that vessel apportioned to Texas.

Maersk calculates this amount for each vessel and adds together the amounts

for all vessels that call upon Texas ports to equal its total franchise tax

liability for the year in Texas. Maersk

paid $35,603.39 in Texas franchise taxes in 2006. Although the record does not include Maersk’s

franchise tax returns for 2003–2005, Hadder testified that Maersk paid less

than $20,000 in Texas franchise taxes for each of these three years. [14] Again, franchise tax liability, standing

alone, does not establish general jurisdiction.

Asshauer , 228 S.W.3d at 933 ; Conner , 944 S.W.2d at 417–18.

During the jurisdictional discovery

period, from 2003 to 2009, seven Maersk employees traveled to Texas. Dennis Houghton testified that he made four

or five trips to the Texas A&M Maritime School in Galveston to attend a

“career fair” and to familiarize cadets with Maersk. [15] On one of these occasions, Houghton also

traveled to Houston to meet with the port agent of the Houston Seafarers’

International Union hall. Kevin Speers,

Maersk’s Senior Director of Marketing and Administration, testified that he

traveled to Houston with at least three other Maersk employees for a business

meeting with APMM, in which the company representatives discussed how to

improve its services to the United States military. Michael Hopkins testified that he also

traveled to Houston once on Maersk business, for an “industry meeting called by

the federal government.” Occasional

travel to Texas is, standing alone, insufficient to establish general

jurisdiction. Uche , 264 S.W.3d at 99 .

Moreover, the Maersk employees traveling to Texas did not choose the

locations of the meetings and events that they were attending, which reduces

the significance of the contacts. See Coleman , 83 S.W.3d at 809 (holding

that five trips to Texas to attend national conferences did not support general

jurisdiction when defendant did not select location of conferences); Reyes , 944 S.W.2d at 404 (holding same

for 204 trips to Texas for inspections and reviews required by federal

contractual obligations).

2. Maersk’s Website

Appellees contend that Maersk

maintains an interactive website which has a feature for prospective Maersk

employees, allows “eSuppliers” and vendors to log in and do business with

Maersk, and, through links to APMM’s website, advertises Maersk vessels

regularly calling on Houston.

Kevin Speers testified that a

section of Maersk’s website is devoted to prospective employees, and, for

mariners, the website informs the potential employee that to become a

crewmember on a Maersk vessel he must first become a member of a union. The website provides links to the unions with

which Maersk contracts. Speers also

testified that Maersk’s website is “informational,” and it directs potential

customers to other websites within the APMM family of companies, where they can

transact business and purchase services.

Potential customers cannot enter into contracts with Maersk through

Maersk’s website, although Speers acknowledged that Maersk’s website links to

APMM’s, where the customers can find out more information regarding shipping

with Maersk. Speers also stated that

interested customers have to visit APMM’s website to find information regarding

Maersk’s vessel schedules, as that information is not located on Maersk’s

website.

During his deposition, Speers also

discussed a section of the Maersk website for “eSuppliers” and vendors. This section allows suppliers and vendors of

Maersk, not customers, to register and log in to access information. The eSupplier page includes the following

statement: “This portal has been

designed to serve our suppliers by providing a centralized location for

information that will assist you in conducting business with us.” Speers testified that this section of the

website is only for “previously registered” suppliers and vendors selling goods

or services to Maersk and does not pertain to Maersk’s selling its

transportation services to customers.

The record does not contain any evidence regarding the contents of the

eSupplier portal, the types of information that suppliers and Maersk can

exchange within this portal, or the methods by which suppliers and Maersk can

exchange information through the website.

The record also does not contain evidence regarding whether suppliers

and vendors can enter into contracts with Maersk over its website, although

Speers’ statement that the eSupplier portal is for “previously registered”

suppliers suggests that this section of the website is for suppliers and

vendors that have a pre-existing relationship with Maersk and that the website

does not provide a means for companies seeking to become suppliers to enter

into a contractual relationship with Maersk.

Maersk customers cannot book cargo through the website, and the site, in

Speers’ opinion, “has been and continues to be an informational website.”

Internet usage is characterized

along a sliding scale. Dawson , 274 S.W.3d at 177 . We classify a website as “interactive” for

the purpose of transactions of goods or services if it allows for the exchange

of information between potential customers and the host. Id.

at 178 . Although the evidence reflects

that customers seeking to use Maersk vessels to ship cargo cannot enter into

contracts with Maersk through its website and there is no indication that

suppliers and vendors can initially enter into contracts with Maersk through

its website, the website does allow registered suppliers and vendors to log

into a special section of the website to “assist [the suppliers] in conducting

business with [Maersk.]” We conclude

that Maersk’s website is interactive. See Daimler-Benz Aktiengesellschaft v. Olson ,

21 S.W.3d 707 , 724–25 (Tex. App.—Austin 2000, pet. dism’d w.o.j.) (classifying

website as “interactive” where site allowed users to submit comments and

questions and allowed users to sign up for electronic mailing service but

referred vehicle sales to parent company).

Although this level of interactivity is, standing alone, not enough to

subject Maersk to jurisdiction in Texas, we consider it as a factor, along with

Maersk’s other Texas contacts. Id. ; Dawson ,

274 S.W.3d at 178 .

3.

Registered to do Business,

Registered Agent, and Permanent Employee in Texas

Maersk concedes that it is

registered to do business in Texas and maintains a registered agent for service

of process in Texas; however, it contends that these contacts are not

sufficient to support general jurisdiction.

When a foreign corporation

registers to do business in Texas, it “only potentially subjects itself to

jurisdiction” in Texas. Conner , 944 S.W.2d at 416 . Although we consider registering to do

business in Texas and maintaining a registered agent in Texas in undertaking a

minimum contacts analysis, these factors are not dispositive of whether Texas

courts can constitutionally exercise general jurisdiction. See

Buchanan , 298 S.W.3d at 419 .

Maersk also concedes that it has a

full-time employee in Houston, who works out of his home, uses an “unlisted

company cellphone for his job duties,” and acts as a port agent whenever Maersk

vessels call at Texas ports. Maersk

provides health benefits to this employee and this employee is covered under

Maersk’s workers’ compensation insurance.

In his affidavit supporting Maersk’s special appearance, Hopkins averred

that Maersk “does not solicit business in Texas through this single employee

and [Maersk] does not hold itself out as being open for general business in

Texas through this single employee.”

This employee’s duties are limited to “interface[ing] between the vessel

and the shoreside support.”

Having an office or a physical

presence in the forum state “does not require a finding of general jurisdiction.” Alenia

Spazio, S.P.A. v. Reid , 130 S.W.3d 201, 217 (Tex. App.—Houston [14th Dist.]

2003, pet. denied). The significance of

the contact “depends on the type and nature of the office maintained.” Id. For example, if the office is a permanent

general business office through which the company solicits business in Texas,

this factor weighs strongly in favor of general jurisdiction. Id. ;

see also Siegmund , 309 S.W.3d at

707–08 (finding general jurisdiction when one Texas employee used home as “base

of operations” for conducting substantial business for company).

Maersk does not maintain a “general

business office” in Texas, but instead employs one employee whose duties are

limited to acting as a port agent when a Maersk vessel calls upon a Texas

port. This employee conducts Maersk’s

business in Texas. Although the

continuous presence of an employee in Texas is a factor we consider, that

factor alone does not support a finding of general jurisdiction. See

Siegmund , 309 S.W.3d at 707–08; Alenia

Spazio , 130 S.W.3d at 217 .

4. Solicitation of Employees at A&M Career

Fair

Dennis Houghton, Maersk’s Marine

Personnel Director, testified that he traveled to Texas four or five times to

attend a career fair at the Texas A&M Maritime School in Galveston during

the jurisdictional period. At this fair,

he presented information about Maersk to interested cadets and “familiarized”

them with the company and “the unions that they have to join to be able to sail

on [Maersk’s] vessels.” He stated that,

although he accepts resumes from the cadets if they give him one and answers

e-mail inquiries about working for Maersk, he does not follow up with the

cadets about future employment with Maersk.

Houghton acknowledged that, occasionally, a cadet he spoke to at A&M

could later be employed on a Maersk vessel, although Houghton emphasized that

Maersk would have had nothing to do with that placement and that a former

A&M cadet may work on Maersk vessels only if the cadet bids on the job and

the union selects him for the position.

Houghton also testified that A&M cadets can work on Maersk vessels

while still in maritime school under the federal Maritime Subsidy Program. Houghton stated that accepting cadets onto

Maersk ships is required under the program and that Maersk cannot pick students

from a particular school to gain experience on its vessels through the program.

Maersk contends that when Houghton

visited the career fair, the purpose of the visit “was not to solicit and hire

cadets to work” for Maersk, but was to “familiarize the cadets at the Maritime

School with [Maersk] and provide information to the cadets.” We disagree with Maersk’s contention that it

did not solicit future employees at the career fairs. Although Maersk correctly notes that,

pursuant to union protocols, it could not directly hire an interested cadet at

the career fair for an immediate position on a vessel, the purpose of

Houghton’s visits was to inform the cadets of the benefits of working on Maersk

vessels so that, in the future, they would be more likely to bid on open

mariner positions on Maersk vessels. The

A&M career fair is held yearly, and Houghton agreed that he attended the

fair “four or five times in the last four or five years.” Houghton’s visits to the A&M career fair

are a regularly conducted activity that specifically targets Texas

residents. See Buchanan , 298 S.W.3d

at 427 (holding website not interactive because, although it invites

prospective employees to submit applications, Texas residents were not

“targeted for recruitment”). His visits

to the career fair to solicit and recruit future employees for Maersk may be

considered as a factor that supports jurisdiction.

5. Texas Bank Accounts

Appellees contend that Maersk

deposited approximately $227,000,000 into the Dallas bank account of its

immediate parent company, Maersk, Inc., and maintained eight separate Bank of

America accounts in San Antonio for specific Maersk vessels.

Whether a defendant possesses a

bank account in Texas is a factor that we consider when determining whether the

defendant is subject to general jurisdiction.

See El Puerto de Liverpool, S.A. de

C.V. v. Servi Mundo Llantero S.A. de C.V. , 82 S.W.3d 622, 631 (Tex.

App.—Corpus Christi 2002, pet. dism’d w.o.j.) (citing CSR , 925 S.W.2d at 595 ); Transportacion

Especial Autorizada, S.A. de C.V. v. Seguros Comercial Am., S.A. de C.V. ,

978 S.W.2d 716, 720 (Tex. App.—Austin 1998, no pet.). In determining jurisdiction, we focus on the

quality and nature of the defendant’s contacts with Texas, and, therefore, use

of the bank account “must be continuous and systematic in order to support the

exercise of general jurisdiction.” El Puerto , 82 S.W.3d at 631 ; Falcon , 5 S.W.3d at 720 (“The infrequent

use of the Laredo National Bank account to assist in the sporadic purchases is

similarly unavailing.”). The total

number of funds in the account and the number of transactions involving the

account are not, by themselves, determinative of jurisdiction. El

Puerto , 82 S.W.3d at 631 (citing Primera

Vista v. Banca Serfin , 974 S.W.2d 918, 926 (Tex. App.—El Paso 1998, no

pet.)). Mere “pass-through” accounts,

“where the account merely serves as a conduit for funds in transit, will not by

itself result in general jurisdiction.” Id.

Here, Maersk contends that it

loaned approximately $227,000,000 in excess operating funds to Maersk, Inc.,

its New Jersey parent company, as part of a “cash management” program set up by

Maersk, Inc. for its subsidiary companies and that Bank of America processed

the loans through its Dallas branch.

Steve Hadder testified that Maersk does not intend to do business with a

bank located in Texas, and if funds intended for Maersk’s parent company passed

through a Texas branch, “[t]hat’s simply a Bank of America structure.” Hadder stated that Maersk has never directed any

bank to open an account in Texas, but he was not sure if Maersk, Inc. owned any

bank accounts in Texas. The record is

unclear regarding whether this account was located in Texas or whether the

account was located in New Jersey and Bank of America merely processed the

funds through its Dallas branch.

Regardless, it is undisputed that these deposits were made into an

account owned by Maersk, Inc., the parent company, and not Maersk Line, Limited,

the defendant in this case.

Even if the account is located in

Texas, appellees make no argument and cite no authority for the proposition

that this account owned by the parent company should be a Texas contact imputed

to the subsidiary company. See Helicopteros , 466 U.S. at 416–17,

104 S. Ct. at 1873 (noting that Helicol’s acceptance of check drawn on Texas

bank was not purposeful because choice of bank was within discretion of drawer,

not payee); Moni Pulo Ltd. v. Trutec Oil

& Gas, Inc. , 130 S.W.3d 170 , 177–78 (Tex. App.—Houston [14th Dist.]

2003, pet. denied) (holding Texas bank accounts not sufficient to establish

general jurisdiction when defendant, although beneficiary of accounts, had no

control over accounts or their location); Preussag

Aktiengesellschaft v. Coleman , 16 S.W.3d 110, 124 (Tex. App.—Houston [1st

Dist.] 2000, pet. dism’d w.o.j) (“The fact that Preussag AG deposits its funds

under this system in some subsidiaries’ Texas bank accounts is a fortuitous

contact, since the ‘banking’ system is not itself directed toward Texas.”); see also Conner , 944 S.W.2d at 419 (“If

parent and subsidiary maintain separate and distinct corporate entities, the

presence of one corporation in a forum state may not be attributed to the

other.”).

In its “Second Supplemental

Memorandum” supporting its special appearance, Maersk agreed that it opened

eight “vessel specific” bank accounts with Bank of America to “receive payments

for military vessel operations,” but it asserted that Bank of America

unilaterally decided to process the accounts through the Military Bank Overseas

Division located in San Antonio and that Maersk did not purposefully choose to

open the accounts in Texas. In its

briefing to this Court, Maersk acknowledges that the eight accounts were

located in Texas but contends that these accounts “were temporary and have been

closed.” Aside from the brief mention of

these accounts in Maersk’s Second Supplemental Memorandum, the record contains

no evidence regarding these accounts, such as the amount of funds contained in

the accounts or the number and frequency of transactions involving the

accounts.

In assessing a defendant’s minimum

contacts when the defendant possesses a bank account in Texas, we focus on the

quality of the defendant’s use of the account, whether the defendant

purposefully availed itself of the privileges and benefits of conducting

business in Texas, and whether the defendant’s use of the account constituted

“substantial activities” in Texas. El Puerto , 82 S.W.3d at 632 . In El

Puerto , two corporate officers testified that the company’s Texas bank

account was used “for the purpose of the company’s business” and “to provide

dollars for the company’s operating needs.”

Id. The record reflected that El Puerto used the

account continuously for a five year period and completed “numerous and

repeated” transactions involving the account.

Id. at 633 . Testimony also indicated that El Puerto

specifically chose to open the account in Texas and that El Puerto used the

account to “directly facilitate its own business” and for “substantive

transactions.” Id. The Corpus Christi Court

of Appeals concluded that El Puerto conducted substantial activities in Texas

through its bank account. Id.

Here, in contrast, the record

contains no evidence regarding the amount of funds placed in these eight

accounts, the number of transactions involving the accounts, or how Maersk used

the accounts. Based on this record, we

cannot conclude that Maersk used the accounts continuously and systematically

and conducted “substantial activities” in Texas through the accounts. We therefore consider these accounts as a

factor weighing in favor of jurisdiction, but we note that the accounts alone

are not sufficient to establish general jurisdiction. Id.

6. Payments Received from Texas Entities

Maersk received approximately

$7,500,000 from Azure Shipping Company, S.A., a Panamanian company, to ship

three loads of cargo from Georgia to Angola.

Azure’s agent, American Shipping & Chartering (“ASC”), is a Texas

company. Hopkins, Maersk’s general

counsel, testified that Maersk picked up the cargo in Georgia, no Maersk

employee traveled to Texas to enter into the contract, and Maersk did not

receive payment from ASC, the Texas agent.

Maersk also received an additional payment of approximately $160,000

from ASC on behalf of Azure for another shipment of goods. Because Maersk had no control over the

citizenship of Azure’s agent, we conclude that the only connection to Texas in

these transactions is too remote and fortuitous to support the exercise of

general jurisdiction.

Maersk also sold $530,000 worth of

“excess consumables” located on six different Maersk vessels to Ocean

Shipholdings, Inc., a Texas company.

Hadder testified that Maersk had a contract with Military Sealift

Command, and, at the end of that contract, Maersk sold the non-government-owned

excess property and equipment on the ship to the next operator, which was a

Texas company. Hadder stated that the $530,000

Maersk received “[was] not considered revenue for accounting purposes.”

Isolated sales to Texas residents

do not constitute purposeful availment of the benefits and protection of Texas

laws. Therefore, this sale does not

invoke general jurisdiction. Reyes , 944 S.W.2d at 405 .

7. Contract with Telemar

Maersk contracted with Telemar USA,

LLC, a Texas company, to provide maintenance and repair services for

telecommunications, radio, and navigation systems on Maersk ships throughout

the world, with no restrictions on the ports in which Telemar is to provide its

services. Appellees contend that Maersk

contractually reserved the right to sue in Texas courts pursuant to the

following clause in the contract with Telemar:

This Agreement shall be

governed by and construed in accordance with the laws of the State of

Virginia. The parties submit to the

exclusive jurisdiction of the courts of Virginia, provided that the OWNER

[Maersk] but not the Company shall also be entitled to commence proceedings in

relation to this agreement in the courts of such other jurisdiction where the

vessel or any item to which this Agreement relates may be.

This clause provided for use of Virginia law in

construing the contract and the parties agreed to submit to jurisdiction in Virginia. However, Maersk retained the right to sue in

the courts of the jurisdiction in which the vessel or any other item covered

under the contract was located, which could be Texas.

Maersk

has not sued Telemar on this contract, and, even if it had, voluntarily filing

suit in a particular jurisdiction is purposeful availment of the jurisdiction’s

facilities and can subject the party to personal jurisdiction in another

lawsuit “only when the lawsuits arise from the same general transaction.” Zamarron

v. Shinko Wire Co. , 125 S.W.3d 132, 143 (Tex. App.—Houston [14th Dist.]

2003, pet. denied). Although Maersk

retained the right to sue Telemar in Texas when its vessels or any item related

to its contract with Telemar were in Texas, this reservation of rights in a

contract with a Texas company for the provision of services does not establish

general jurisdiction in this case. The

Telemar contract bears no relation to the facts of this lawsuit and is not part

of the “same general transaction.” See id.

8. Previous Lawsuits in Texas

Michael

Hopkins testified that, during his tenure with the company, Maersk had been

sued twice in Texas before this case. [16] Hopkins testified that Maersk did not

challenge personal jurisdiction in these previous lawsuits.

The

failure of a defendant to challenge personal jurisdiction in a case in which a

Texas court apparently would be able to exercise specific jurisdiction “does

not demonstrate that a nonresident defendant has the continuous and systematic

contacts with Texas necessary for the exercise of general jurisdiction.” Buchanan ,

298 S.W.3d at 414 (citing Nath , 238

S.W.3d at 501 ). The previous lawsuits

against Maersk, which involved allegations that Maersk failed to pay for

services rendered, could have been subject to specific jurisdiction, in which

case, Maersk’s failure to specially appear in those case does not establish

that Maersk has the continuous and systematic contacts with Texas necessary to

establish general jurisdiction in this case.

See id.

9. Advertising Texas Port Calls

At the special appearance hearing,

the trial court admitted printouts from Maersk’s website depicting a

“historical list of its routes.” [17] This exhibit consists of Maersk’s “North

American Service Guide,” dated 2009, which describes the services that Maersk

offers to five general areas of the world:

Africa, Central America, the Mediterranean, the Middle East and the

Indian Subcontinent, and Northern Europe.

According to the Service Guide, ten routes from East and West Africa

stop in Houston, ten routes total from the Mediterranean, Middle East, and

Indian Subcontinent stop in Houston, four routes from Central America stop in

Houston, and three routes from Northern Europe stop in Houston.

The Service Guide informs potential

customers seeking to ship to and from Central America that Maersk’s service

portfolio provides “a wide number of options with direct departures to the U.S.

East, West and Gulf Coasts.” The Guide

states that Maersk’s “Expreso” service has “a fast transit time to Houston from

Central American ports” and that the service “continues direct calls to New

Orleans and Houston” catering to Central American origins. Similarly, the guide promises that “[d]irect,

reliable service, and best-in-industry transit times are available from Italy

and Spain to all major U.S. East Coast ports and Houston” and states that

“MECL2 offers dedicated mother vessel service from Port Said westbound to the

U.S. East Coast and Houston.” The

Service Guide also advertises “[w]eekly U.S. Flag service on the TA2 with new,

faster vessels [that] provides a dedicated service from Northern Europe to

Charleston, Houston and now Mobile.”

Kevin Speers, Maersk’s Marketing Director, testified that, at trade

shows, Maersk representatives talk about the foreign and domestic ports that

they can serve, including Houston, that Maersk’s marketing materials include

vessel routes and maps of port calls, and that the materials advertise that Maersk’s

vessels call on Houston. Cf. Conner , 944 S.W.2d at 417 (“Texas is

never the original destination of

ContiCarriers’ barges, and barge loads only go to Texas upon customer request . ContiCarriers has never made a conscious

effort to secure freight to go to Texas, and often refuses customer requests to

take barges to Texas because it does not ‘do business’ in the state and has

nothing to back-haul.”) (emphasis in original).

At the special appearance hearing,

the trial court also admitted, without objection, a copy of Maersk’s Twitter

feed, dating from June 5, 2009, which provides information on Maersk’s

Breakbulk Vessel Schedule. Maersk

provides regular updates for the “estimated time of arrival” for six different

Maersk vessels at various ports. Almost

all of the updates include “ETAs” for the Port of Houston. Maersk also uses its Twitter feed to promote

the capabilities of its vessels, such as by stating that the “Maersk

Constellation is a geared multi-purpose vessel offering 30,000 square feet of

Ro/Ro capability[,] LOA 182m, DWT 29750mt, bale 35489cbm.” On two occasions before the jurisdictional

discovery cut-off of October 6, 2009, Maersk used its Twitter feed to solicit

additional cargo for its voyages. On

June 16, 2009, Maersk posted that it was “soliciting US flag and [commercial]

cargo [loading] on the U.S. East Coast (USEC) and U.S. Gulf (USG) for

[discharge in] Northern Europe, [Mediterranean,] and Black Sea.” Maersk posted a similar message on June 30,

2009, seeking flag or commercial cargo for discharge in the Mediterranean, Red

Sea, Black Sea, or East Africa, departing from ports on the East and Gulf

Coasts.

This evidence indicates that

Houston is a “regular” port for Maersk and is part of its established service

routes. Maersk advertises that it calls

on Houston on a regular basis, praises its “best-in-industry transit times” to

United States ports, including Houston, and solicits additional cargo via

Twitter when its vessels located in Gulf of Mexico ports, including Houston,

have extra storage space.

10.

Totality of

Maersk’s Contacts with Texas

Even if a defendant’s contacts with

Texas, when considered in isolation, may not be sufficient to establish

personal jurisdiction, we consider all contacts together when determining if

the defendant has sufficient minimum contacts to support general jurisdiction. Coleman ,

83 S.W.3d at 809 . Although Maersk has

several categories of contacts in common with Waterman, such as employing Texas

residents as mariners through the national unions and paying Texas vendors when

its ships call upon Texas ports, Maersk has numerous additional contacts that,

when considered together, indicate that Maersk is engaged in substantial

activities purposefully directed to Texas.

Michel , 45 S.W.3d at 680 .

Maersk is registered to do business

in Texas, it maintains a registered agent for service of process in Texas, and

it has a full-time employee in Houston to act as a port agent when Maersk

vessels call upon the Port of Houston.

Although this employee’s activities do not constitute a significant

portion of Maersk’s overall business, the fact that Maersk retains an employee

on a full-time basis to handle its vessels calling on Houston, as opposed to

hiring an agent on an ad hoc basis like Waterman, reflects the frequency with

which Maersk vessels call on Texas ports and suggests that Maersk derives enough

business from its voyages to Texas to justify this position. Furthermore, Maersk advertises, through the

North American Service Guide available on its website, its marketing materials

and trade show publications, and its Twitter feed, that its vessels regularly

call on the Port of Houston and that Houston is a stop on numerous established

service routes. Maersk vessels

frequently visit Texas and Maersk holds itself out as calling on Houston on a

regular basis. Maersk also, on at least

two occasions during the relevant period, solicited additional cargo for its

vessels, to load in ports on the East and Gulf coasts of the United

States. Maersk does business with Texas

entities, pays Texas franchise taxes, maintained eight bank accounts in Texas,

has an interactive website, solicits future employees at the Texas A&M

career fair, and has, on one occasion, contractually reserved the right to sue

a Texas company in Texas.

When we consider the totality of

Maersk’s contacts with Texas, we conclude that Maersk has purposefully availed

itself of the benefits and protections of Texas laws and has established

sufficient minimum contacts with Texas to support the exercise of general

jurisdiction.

Fair Play and Substantial Justice

Having

determined that Maersk purposefully established minimum contacts with Texas, we

must now determine whether the exercise of personal jurisdiction over it

comports with traditional notions of fair play and substantial justice. See

Glattly , 177 S.W.3d at 447 (citing Burger

King , 471 U.S. at 475–76, 105 S. Ct. at 2183–84). When making this inquiry, we consider: (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, substantive social policies.

Guardian Royal , 815 S.W.2d at

231 . 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 forum state. Spir Star AG v. Kimich , 310 S.W.3d 868,

878 (Tex. 2010). To defeat jurisdiction,

Maersk must present “a compelling case that the presence of some consideration

would render jurisdiction unreasonable.”

Id. (quoting Guardian Royal , 815 S.W.2d at 231 ).

When

a Texas resident pursues a cause of action for harm committed within Texas,

“the fairness considerations have little impact.” Michel ,

45 S.W.3d at 683 . When, however, the

cause of action is not connected to Texas and none of the parties are Texas

residents, “fairness becomes of paramount importance.” Id.

(citing Jones v. J.P. Sauer & Sohn ,

27 S.W.3d 157, 161 (Tex. App.—San Antonio 2000, pet. denied)).

Maersk

contends that the burden on it to defend the case in Texas would be great

because Maersk has no office in Texas, but is instead headquartered in Virginia,

and a trial with ten plaintiffs and intervenors would be lengthy and would

“consum[e] enormous resources.” Distance

alone is insufficient to defeat jurisdiction, because “[m]odern transportation

and communication make it much less burdensome for a party to defend itself in

a state where it does business.” Spir Star , 310 S.W.3d at 879 ; State of Rio de Janeiro v. Philip Morris,

Inc. , 143 S.W.3d 497, 502 (Tex. App.—Beaumont 2004, pet. denied). Maersk’s contacts with Texas lessen the

burden of defending the lawsuit. Philip Morris , 143 S.W.3d at 502 (citing

Olson , 21 S.W.3d at 726 ).

The record indicates that Maersk

employees have traveled to Texas before, that Maersk admits it has participated

in lawsuits in Texas on previous occasions, and that Maersk contractually

reserved the right to sue in Texas for matters relating to its contract with

Telemar. See Buchanan , 298 S.W.3d at 420 (“The record instead demonstrates

that Antero employees already travel to Texas for business meetings, and Antero

has been represented by Texas attorneys throughout its existence, both in this

litigation and for corporate legal advice.”); see also Villagomez v. Rockwood Specialties, Inc. , 210 S.W.3d 720,

743 (Tex. App.—Corpus Christi 2006, pet. denied) (“As a national corporation

with ongoing and pervasive contacts with Texas, Rockwood is especially well

suited for this type of out-of-state litigation.”). Furthermore, unlike Rocket Engineering in Michel , Maersk is not a “small

enterprise.” See Michel , 45 S.W.3d at 683–84.

The burden on Maersk of defending this lawsuit in Texas is minimal and

does not, by itself, preclude the exercise of jurisdiction. Philip

Morris , 143 S.W.3d at 502 .

Maersk

contends that the remaining factors weigh against exercising personal jurisdiction

in Texas because Texas has no connection to this lawsuit: the underlying incident occurred off the

coast of Somalia, none of the plaintiffs reside in Texas so Texas has no

interest in obtaining redress for its citizens, Maersk is a Delaware corporation

with its principal place of business in Virginia, Maersk’s employees and

representatives all reside in Virginia, none of the witnesses reside in Texas,

none of the relevant evidence exists in Texas, and Texas has no property

interest at stake in this litigation. Id. ; James

v. Ill. Cent. R.R. Co. , 965 S.W.2d 594, 599 (Tex. App.—Houston [1st Dist.]

1998, no pet.) (“The cause of action did not occur in Texas, and neither party

is a resident of this state.”).

Generally, Texas has no interest in

adjudicating a case between nonresidents concerning occurrences that took place

outside of Texas. Moni Pulo , 130 S.W.3d at 180 (holding, in dicta, that exercising

personal jurisdiction violated traditional notions of fair play and substantial

justice). In James , we held that, although Illinois Central had sufficient

minimum contacts with Texas, Texas had no interest in adjudicating the

particular dispute. James , 965 S.W.2d at 599 .

The underlying suit was for personal injuries suffered by James as he

worked as a switchman for Illinois Central in Tennessee. Id.

at 596 . Illinois Central’s “only conduct

in Texas” involved its employment of an accounts manager as a full-time

employee in Houston. Id. at 598 , 599 n.3. We concluded that Texas’s interest in

adjudicating the dispute was “further diminished because James’s injury has no

relation to Illinois Central’s activities in Texas.” Id.

at 599 . In that case, by exercising

personal jurisdiction, Texas “would not be protecting its citizens from the

potential future actions of Illinois Central.”

Id. ; see also Verizon Cal. Inc. v. Douglas , No. 01-05-00707-CV, 2006 WL

490888 , at *7 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.)

(“The parties are California residents; thus, Texas has no interest either in

protecting its citizens or in policing the activities of a corporation

authorized to do business in the state.”).

Here,

although none of the current parties to this litigation are residents of Texas,

two of the crewmembers on board the MAERSK ALABAMA were Texas residents, and

Maersk has employed over 600 Texas resident mariners throughout the past eight

years. In the underlying lawsuit, the

appellees allege that Maersk was negligent and grossly negligent by providing

inadequate security and safety for the crewmembers and that Maersk knowingly

sent its vessels into unsafe waters.

This case directly implicates Maersk’s safety practices, which would

affect the Texas mariners sailing on Maersk vessels. Thus, unlike in James , by exercising jurisdiction over Maersk here, Texas could

“protect its citizens from the potential future actions” of Maersk.

The

third factor to consider is the plaintiff’s interest in obtaining convenient

and effective relief. Although none of

the plaintiffs and intervenors are Texas residents, they chose Texas as their

forum. In this situation, “we can

presume they do not find [litigating in Texas to be] inconvenient or

ineffective.” E.I. DuPont de Nemours & Co. v. Bailey , 986 S.W.2d 82 , 84–85

(Tex. App.—Beaumont 1999, pet. dism’d w.o.j.); Solow v. Century Assets Corp. , 12 S.W.3d 512, 517 (Tex.

App.—Beaumont 1999, no pet.) (“Destefano chose Texas as his forum; we cannot

presume he finds it inconvenient or ineffective.”); see also Glencoe Capital Partners II, LP v. Gernsbacher , 269 S.W.3d

157, 168 (Tex. App.—Fort Worth 2008, no pet.) (“[B]ecause Appellants hail from

several different states, there will be some degree of inconvenience on at

least some of them regardless of where litigation proceeds.”). It may, as Maersk contends, be “more

convenient” for the plaintiffs to litigate in a different forum, such as one in

which the majority of parties reside; however, whether a particular forum is

more or less convenient is a question for a forum non conveniens case, not a

special appearance. Bailey , 986 S.W.2d at 85 .

Merely because it might be most efficient to litigate where the majority

of witnesses and evidence is likely to be located does not establish that it

would be inefficient to litigate in Texas.

See id. (“Further, as noted in

our discussion under the burdensome factor, the record contains no evidence of

where the witnesses are located.”).

Although Maersk’s corporate representatives and employees reside in

Virginia and the appellees reside in New York, Pennsylvania, and Florida, the

record contains no evidence of where other witnesses, such as appellees’

medical experts, reside.

When

considering the interstate judicial system’s interest in obtaining the most

efficient resolution of the controversy as well as the “shared interest of the

several states” in furthering fundamental social policies, we must weigh the

interests of Texas, Virginia, New York, Pennsylvania, and Florida. Michel ,

45 S.W.3d at 684 . Virginia, as the “home

state” of Maersk, arguably has the greater interest in the substantive social

policies relating to the conduct of one of its residents. See id. ;

Philip Morris , 143 S.W.3d at 503

(holding that state in which defendant has principal place of business has

direct interest in substantive law relating to dispute and strong interest in

governing conduct of its residents).

This factor, therefore, weighs in favor of not exercising jurisdiction

in Texas.

Decisions

that necessitate piecemeal litigation “result in inefficiency.” Capital

Tech. Info. Servs., Inc. v. Arias & Arias Consultores , 270 S.W.3d 741,

752 (Tex. App.—Dallas 2008, pet. denied).

We have already held that Waterman, an Alabama corporation with its

principal place of business also in Alabama, lacks the sufficient contacts

necessary for Texas to exercise personal jurisdiction. Maersk contends that Virginia is the most

appropriate forum to litigate this dispute.

There is no evidence that Waterman has sufficient contacts for Virginia

to exercise jurisdiction, there is no evidence that Maersk has sufficient

contacts for Alabama to exercise jurisdiction, and there is no evidence that

either Waterman or Maersk has sufficient contacts for the other states whose

residents are involved — New York,

Florida, and Pennsylvania — to exercise

jurisdiction. There is no evidence that

any particular state can exercise personal jurisdiction over both

defendants. Piecemeal litigation,

therefore, may be unavoidable in this case.

When

we consider all of the factors, we conclude that Maersk has failed to present a

compelling case that the exercise of personal jurisdiction over it in Texas

would violate traditional notions of fair play and substantial justice. We therefore hold that the trial court

correctly denied Maersk’s special appearance.

Failure to File Findings of Fact and Conclusions of Law

Finally,

in their fifth issue, Waterman and Maersk contend that the trial court erred in

failing to file findings of fact and conclusions of law after they timely

requested such findings and conclusions.

A

trial court may, but is not required to, file findings of fact and conclusions

of law after it enters an interlocutory order such as an order denying a

special appearance. Tex. R. App. P. 28.1(c); Blair Commc’ns, Inc. v. SES Survey Equip.

Servs., Inc. , 80 S.W.3d 723, 725 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). Texas Rules of Civil Procedure

296 and 297 generally govern the filing of findings of fact and conclusions of

law. See

Tex. R. Civ. P. 296 (“In any case

tried in the district or county court without a jury, any party may request the

court to state in writing its findings of fact and conclusions of law.”); id. 297.

Rule 296 gives “a party a right to findings of fact and conclusions of

law finally adjudicated after a

conventional trial on the merits before the court.” IKB

Indus. (Nigeria) Ltd. v. Pro-Line Corp. , 938 S.W.2d 440, 442 (Tex. 1997)

(emphasis added). In other cases,

findings and conclusions are “proper, but a party is not entitled to

them.” Id. Because Rules 296 and

297 do not “impose any duty on the trial court” to file findings and

conclusions when no trial takes place, such as in the case of special

appearances subject to interlocutory appeal, appellants demonstrate no

“intrinsic error” by the trial court’s failure to file findings and conclusions. In re

Estate of Davis , 216 S.W.3d 537, 542 (Tex. App.—Texarkana 2007, pet.

denied) (quoting Niehaus v. Cedar Bridge,

Inc. , 208 S.W.3d 575 , 579 n.5 (Tex. App.—Austin 2006, no pet.)).

Here,

after the trial court denied the special appearances, Waterman and Maersk

requested findings of fact and conclusions of law pursuant to Rules 296 and

297. Because this is a special

appearance and there has not yet been a conventional trial on the merits,

Waterman and Maersk are not entitled to findings and conclusions. [18] We therefore hold that the trial court did

not err in failing to file findings and conclusions.

Conclusion

We

affirm the portion of the trial court’s order finding that it has personal

jurisdiction over Maersk. We hold that

Waterman lacks sufficient minimum contacts to support general

jurisdiction. We therefore reverse the

portion of the trial court’s order finding that it has personal jurisdiction

over Waterman and render judgment dismissing Waterman from the litigation.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Bland.

[1]

Salah and Clotter reside in New

York, Abdelwaham resides in Minnesota, Brzezinski resides in Massachusetts, and

Sanchez resides in Pennsylvania. None of

these intervenors are parties to this appeal.

[2]

Appellants filed identical

special appearances in response to Cronan’s and Hicks’s petitions in

intervention on December 30, 2009, and January 8, 2010, respectively. It is undisputed that the special appearances

were the first instruments filed by Waterman and Maersk in the Ruiz case.

[3]

In addition, a plaintiff’s

nonsuit “cannot extinguish a defendant’s courterclaim for costs and attorney’s

fees,” and a nonsuit “cannot be used to disturb a court’s judgment on the

merits of a claim, such as a partial summary judgment against the nonsuiting

party.” Villafani v. Trejo , 251 S.W.3d 466, 469 (Tex. 2008); Hyundai Motor Co. v. Alvarado , 892

S.W.2d 853 , 854–55 (Tex. 1995) (per curiam) (“A decision on the merits, such as

a summary judgment, however, is not vitiated.”); see also Le v. Kilpatrick , 112 S.W.3d 631, 634 (Tex. App.—Tyler

2003, no pet.) (holding that nonsuit vitiates order denying special appearance

because such order does not “reflect[] any judgment on the merits of the

case”). Here, it is undisputed that

Waterman and Maersk did not assert any claims for affirmative relief or

counterclaims for costs and attorney’s fees in the Hicks case. It is also undisputed that neither the state

nor the federal district court issued any rulings on the merits of the case

before Hicks nonsuited his claims.

[4]

We note that Harris County Local

Rule 3.2.3(a) provides: “Subject to

subpart c, a motion to consolidate cases must be heard in the court where the

first filed case is pending. If the

motion is granted, the consolidated case will be given the number of the first

filed case and assigned to that court.” Harris Cnty. (Tex.) Civ. Dist. Loc. R.

3.2.3(a). Furthermore, “[a]ny matter

filed after a non-suit, dismissal for want of prosecution, or other disposition

of a previous filing involving substantially-related parties and claims shall

be assigned by the Administrative Judge of the Civil Trial Division to the

court where the prior matter was pending.”

Id. 3.2.2.

[5]

Cronan also cites the Texas Supreme Court’s

statement in Villafani that a nonsuit

“does not purport to limit the trial court’s power to act” for the proposition

that Rule 162 does not prohibit the trial court from exercising personal

jurisdiction over a defendant who had previously generally appeared in a

nonsuited case. We note that this

statement was made in the context of determining whether a trial court can act

on a sanctions motion after the plaintiff files a nonsuit, but still within the

time period of the trial court’s plenary jurisdiction. 251 S.W.3d at 469 (quoting Scott & White Mem’l Hosp. v. Schexnider ,

940 S.W.2d 594, 596 (Tex. 1996)). The

court noted that, in Schexnider , it

held that “Rule 162 did not affect a trial court’s authority to hear motions

for sanctions during its plenary jurisdiction” and it further held, in Villafani , that Rule 162 does not

prevent a non-moving party from appealing rulings on claims for affirmative

relief that the trial court issued prior to the nonsuit. Id.

at 470 ; see also Travelers Ins. Co. v.

Joachim , 315 S.W.3d 860, 865 (Tex. 2010) (holding that trial court retains

limited authority to dispose of case after nonsuit filed); Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel.

Shultz , 195 S.W.3d 98, 101 (Tex. 2006) (per curiam) (“Although [Rule 162]

permits motions for costs, attorney’s fees, and sanctions to remain viable in

the trial court, it does not forestall the nonsuit’s effect of rendering the

merits of the case moot.”). We do not

read the rulings in Schexnider and Villafani as broadly as Cronan suggests — namely, that a trial court may automatically

exercise personal jurisdiction over a defendant in a suit following a nonsuit

if the defendant generally appeared in the first suit before the plaintiff

filed the nonsuit. This interpretation

conflicts with well-established case law holding that a nonsuit extinguishes

the case and returns the parties to their positions before the plaintiff

invoked the trial court’s jurisdiction, with a few exceptions not applicable

here. See, e.g. , Villafani , 251

S.W.3d at 469 .

[6]

Even if Johnston lacked personal

knowledge and his affidavit was, therefore, defective, Waterman still presented

evidence supporting its special appearance.

Rule 120a(3) does not require a party to file affidavits supporting a

special appearance, and the rule provides that the trial court “shall determine

the special appearance on the basis of the pleadings, any stipulations made by

and between the parties, such affidavits and attachments as may be filed by the

parties, the results of discovery processes, and any oral testimony.” Tex.

R. Civ. P. 120a(3); see also Exito

Elecs. Co. v. Trejo , 142 S.W.3d 302, 307 (Tex. 2004) (noting that, in

addition to corporate officer’s affidavit, record also contained pleadings and

deposition of Exito’s corporate representative). The special appearance record in this case

contained Johnston’s affidavit, as well as the depositions of Johnston and Mike

Cameron, both of whom testified to the information contained in Johnston’s

affidavit.

[7]

Appellees do not contend that

Waterman and Maersk are subject to specific jurisdiction; thus, we address only

general jurisdiction.

[8]

The parties entered into a Rule

11 agreement during jurisdictional discovery limiting the time period for

determining contacts with Texas from January 1, 2003, to October 6, 2009, the

date Ruiz sued. We refer to this time as

the “jurisdictional discovery period.”

[9]

Appellees contend that Waterman

had vessels dry docked in Texas. Peter

Johnston testified that Waterman had not had a vessel dry docked in Texas for

the past fifteen years, outside the agreed period for jurisdictional discovery.

[10]

Peter Johnston testified that the

time-charterer gives “specific instructions” regarding “which agents to use at

what ports,” and the charterer, not Waterman, appoints the port agents.

[11]

Choice Auto Brokers, Inc. v. Dawson , 274 S.W.3d 172 (Tex.

App.—Houston [1st Dist.] 2008, no pet.), involved a website that allowed users

to e-mail CAB through the website to schedule test drives and to request

additional information, but did not permit users to directly purchase vehicles

or contract with CAB. We determined that

this website was “interactive,” but concluded that we must look to CAB’s other

contacts with Texas to determine if jurisdiction existed. Id.

at 178 . Dawson suggests that being able to contact the nonresident company

through the website — regardless

of how the company is able to respond to the potential customer — is enough to move a

website from the “passive” to the “interactive” category. If so, then Waterman’s website, which

unequivocally allows users to contact Waterman through e-mail links, would be

considered “interactive.” Because,

however, it is also undisputed that users cannot directly contract with

Waterman through the website, then this website is merely a factor to consider

and we must look to Waterman’s other contacts with Texas to determine jurisdiction.

[12]

Cronan’s counsel asked Hopkins

whether Maersk vessels call upon Houston twice a week. Hopkins replied that he was not sure, and

“[he thought] so, but, you know, there could be weeks when we don’t call.” Cronan’s counsel asked Dennis Houghton, Maersk’s

Marine Personnel Director, whether Maersk vessels make regular calls upon Texas

ports, and Houghton responded that he did not know what counsel meant by

“regular calls” and that the vessels, “depending on the cargo that is booked

for the vessel,” go to the particular port to load the cargo.

[13]

Appellees contend that Maersk

“pays $50,000–$75,000 per day to Texas vendors for goods/services that were

provided/performed solely in Texas, for a total of more than $370 million

between January 2003 and October 2009.”

To arrive at this figure, appellees appear to have taken the total

amount Maersk paid to Texas vendors and then divided that amount by the number

of days between January 1, 2003 and October 6, 2009. The $370 million total amount also includes a

$227,000,000 payment that Maersk made to its immediate parent company as a

“short-term loan . . . for cash management purposes.”

[14]

Beginning in 2007, Maersk, Inc.,

Maersk’s immediate parent company, paid franchise taxes for Maersk and its

other subsidiaries. Steve Hadder

testified that, eventually, Maersk, Inc. would require Maersk to pay back its

share, although it had not so required as of the date of Hadder’s deposition.

[15]

Houghton’s trips to Texas for the

A&M career fair are discussed in greater depth in the separate section

regarding solicitation of employment.

[16]

Hopkins testified that Maersk has

been sued by Flanagan Stevedoring Company and Commodity Solutions, LLC for

failure to pay for services rendered.

[17]

Maersk objected on the ground that

the printouts indicated that appellees printed the documents on April 19, 2010,

and the relevant time period for determining Maersk’s contacts with Texas ended

on October 6, 2009, the date Ruiz filed suit.

Maersk does not complain on appeal about the trial court’s ruling

admitting this evidence, nor does Maersk contend that the routes depicted in

its “North American Service Guide,” dated 2009, were any different before the

jurisdictional discovery cut-off date.

[18]

Furthermore, it is undisputed that

Waterman and Maersk did not file a notice of past due findings and conclusions

before they filed their notices of appeal in this Court. The failure to file a notice of past due

findings and conclusions waives the right to complain about the trial court’s

failure to file findings and conclusions on appeal. I &

JC Corp. v. Helen of Troy L.P. , 164 S.W.3d 877, 885 (Tex. App.—El Paso

2005, pet. denied).