Sarjak Container Lines Singapore PTE. Limited v. Barbara Semons

Opinion issued May 4, 2023

In The

Court of Appeals

For The

First District of Texas

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NO. 01-21-00508-CV

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SARJAK CONTAINER LINES SINGAPORE PTE LTD., Appellant

V.

BARBARA SEMONS, Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Case No. 1155769

MEMORANDUM OPINION

Appellant Sarjak Container Lines Singapore PTE Ltd. (“Sarjak”), a

Singaporean company, appeals the trial court’s denial of its special appearance.

Appellee Barbara Semons sued Sarjak asserting various employment-related claims.

After the county court entered a final no-answer default judgment against Sarjak,

Sarjak filed a special appearance challenging personal jurisdiction, which the trial

court denied by written order. In a single issue on appeal, Sarjak challenges the

denial of its special appearance. Semons argues that this Court lacks jurisdiction

because the case has become moot. We conclude that the appeal is not moot, and we

have jurisdiction to reach the merits of Sarjak’s appeal. We affirm.

Background

In her petition, Semons alleged that Sarjak hired her in October 2016 as an

executive director to work in Houston overseeing Sarjak’s American shipping

operations. At the time she was hired, Semons was Sarjak’s only employee stationed

in the United States. Two other employees, Soumen Majumdar and Ines Bigdeli,

lived overseas. In January 2017, Majumdar tasked Semons with forming a new

company in Texas, which would become Sebert Shipping, Inc., a wholly owned

subsidiary of Sarjak. Majumdar is Sebert Shipping’s sole officer.

After Semons formed Sebert Shipping, Majumdar obtained a visa and moved

to Texas to run Sebert Shipping’s operations. When he arrived in Texas, Semons

alleged that he began treating her differently than he had before he moved to Texas

because she was a female. For example, Semons alleged that Majumdar required her

to report to a male colleague in a position inferior to her own. She had to give up her

office to this male colleague and move into a “bull pen” setting that was much

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smaller than her office. She also learned that the male colleague earned nearly twice

her salary despite holding an inferior position in the company. She also alleged that

this male colleague and Majumdar treated her “very cruelly,” including by cursing

at her.

In April 2018, Sarjak sent Semons a list of customers owing more than

$500,000 in tariffs that had not been collected by Sarjak’s previous agent. Semons

contacted all of the customers who owed tariffs, but the customers became upset

upon learning for the first time that they owed the tariffs. One customer’s attorney

sent a letter to Sarjak demanding a copy of tariff paperwork that Sarjak was required

to file with the Federal Maritime Commission before it could collect the tariffs from

the customers. Semons contacted another Sarjak employee to request the necessary

tariff paperwork, but that employee did not know any paperwork needed to be filed

so none had been filed. The Sarjak employee then contacted Sarjak’s tariff company

and its legal counsel. Sarjak then advised Semons that the paperwork had to be filed

or the tariffs could not be collected from the customers. Semons reported this

information to Majumdar, but he demanded that she collect the tariffs from the

customers anyway. Semons refused, which “enraged” Majumdar. He began

“constantly” yelling at, belittling, and embarrassing Semons in front of the entire

office. Semons was eventually terminated, and Sarjak told her she was terminated

for refusing to collect the tariffs.

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Semons filed a charge of gender discrimination and retaliation with the Equal

Employment Opportunity Commission. She then sued Sarjak, Sebert Shipping, and

Majumdar for gender discrimination in violation of Title VII of the Civil Rights Act

of 1964 and the Texas Commission on Human Rights Act, wrongful discharge, and

tortious interference with her employment contract.1 Semons sought actual damages,

exemplary damages, attorney fees and costs, and interest.

On June 4, 2021, the county court signed a final no-answer default judgment

against Sarjak.2 The judgment recited that Semons’s claims against Sarjak were

meritorious, specifically reciting that Sarjak violated the Labor Code and caused

harm to Semons. The judgment stated that Sarjak intentionally and willfully violated

Semons’s rights under the Labor Code, which entitled Semons to exemplary

damages. The judgment did not, however, award her any exemplary damages. The

judgment awarded her actual damages, attorney’s fees, and costs. The judgment also

awarded her conditional appellate fees if Sarjak unsuccessfully appeals to this Court

or the Texas Supreme Court.

On July 2, 2021, Sarjak filed several pleadings in the county court proceeding:

a special appearance; a motion to vacate the default judgment and for new trial

1

Sebert Shipping and Majumdar are not parties to this appeal.

2

Before signing the final default judgment, the county court signed an interlocutory

judgment against Sebert Shipping, and Semons nonsuited her claims against

Majumdar.

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subject to its special appearance; and an answer with affirmative defenses subject to

its special appearance.

In its special appearance, Sarjak argued that the county court lacked personal

jurisdiction over it because it was not a resident of Texas, it lacked minimum

contacts generally with Texas, and it lacked minimum contacts specifically related

to Semons because it did not employ, contract with, or have prior interactions with

Semons. The only evidence attached to Sarjak’s special appearance was a

declaration by Supal Shah, a resident of India, verifying that the facts stated in the

special appearance were within his personal knowledge and were true and correct.

However, Sarjak’s special appearance also referenced a declaration from Shah

that was attached to Sarjak’s contemporaneously filed motion to vacate and for new

trial. In this declaration, Shah averred that he is the president of finance and strategy

for Sarjak Container Lines PVT. LTD (“Sarjak India”), which Sarjak contends is a

separate entity despite the similarity in the two entities’ names. Nevertheless, Shah

averred that he has personal knowledge of Sarjak’s business and legal affairs.

He stated that Sarjak is a company incorporated in Singapore and has its

principal place of business in Singapore. He also stated that Sarjak does not conduct

business in Texas; have offices, facilities, or employees in Texas; or have a

registered agent for service of process in Texas. He also stated that Sarjak did not

employ or otherwise contract with Semons. Finally, Shah denied that he or any

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member of Sarjak’s management knew about Semons’s lawsuit until Sarjak received

the notice of default judgment entered against it.

Semons filed a response to Sarjak’s special appearance. She disputed that she

was not employed by Sarjak, arguing that Sarjak hired her directly and is the sole

parent company of Sebert Shipping. She attached the letter offering her employment

to prove that Sarjak hired her. She also attached two franchise tax reports filed with

the Texas Comptroller of Public Accounts, both of which list Sarjak as Sebert

Shipping’s sole parent company and Majumdar as Sebert Shipping’s sole officer.

At a hearing on its special appearance, Sarjak disputed that the letter of

employment proved that it hired Semons. Sarjak argued that the letter refers to Sarjak

India, not Sarjak, and the two entities are separate despite the substantial similarity

in their names. Sarjak argued that Shah’s declaration denying that Sarjak ever

employed or contracted with Semons supports this argument. Semons objected to

Shah’s declaration, as she had in her special appearance response, on the grounds

that the declaration included hearsay and incorrect statements. She also disputed that

the letter offering her employment showed that she was hired by Sarjak India rather

than Sarjak. Semons attended the hearing, and her counsel offered several times to

call her as a witness to prove that she was employed by Sarjak, but the court stated

that it did not need her testimony.

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Sarjak also argued that the Texas franchise tax reports showed only “an

ostensible ownership structure or ownership interest for a separate entity and does

not establish any of the requirements for minimum contacts.” When the county court

pressed Sarjak, however, its counsel conceded that Sarjak “is a fully owned

subsidiary of this Sarjak India,” the separate entity. Semons argued that Sarjak is the

sole owner of Sebert Shipping, and that Semons formed Sebert Shipping while

employed by Sarjak. Sarjak contended that mere ownership of a Texas subsidiary

does not confer personal jurisdiction over the nonresident parent company. At the

end of the hearing, the court denied the special appearance.

On September 2, 2021, the county court entered a written order denying

Sarjak’s special appearance. On September 21, 2021, Sarjak filed a notice of

accelerated appeal of the order denying its special appearance.

Jurisdiction

We first address a jurisdictional issue raised by Semons. In her appellate brief,

Semons argues that this appeal is moot because the notice of appeal was filed after

the county court lost plenary power over the proceedings. According to Semons’s

argument, because the county court lacked plenary power when Sarjak filed its

notice of appeal, this Court cannot redress Semons’s injuries and we therefore lack

jurisdiction over the appeal. Sarjak disputes that the county court had lost plenary

power either when the court denied the special appearance or when Sarjak filed the

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notice of appeal. For the reasons discussed below, we conclude that the appeal is not

moot because the county court had plenary power when it denied the special

appearance, and Sarjak timely filed the notice of appeal under the Rules of Appellate

Procedure thereby invoking this Court’s appellate jurisdiction.

Whether we have appellate jurisdiction is a question of law that we review de

novo. Caress v. Fortier, 576 S.W.3d 778, 781 (Tex. App.—Houston [1st Dist.] 2019,

pet. denied) (citing Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.

2007)). “Unless specifically authorized by statute, Texas appellate courts only have

jurisdiction to review final judgments.” Bison Bldg. Materials, Ltd. v. Aldridge, 422

S.W.3d 582, 585 (Tex. 2012) (citations omitted); see Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 & n.12 (Tex. 2001). An interlocutory order denying a special

appearance is expressly appealable under section 51.014(a)(7) of the Civil Practice

and Remedies Code. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7) (authorizing

appeal from county court order that “grants or denies the special appearance of a

defendant”).

To invoke the jurisdiction of an appellate court, a party must file a timely

notice of appeal. TEX. R. APP. P. 25.1(b) (“The filing of a notice of appeal by any

party invokes the appellate court’s jurisdiction over all parties to the trial court’s

judgment or order appealed from.”). Generally, in an appeal from a final judgment,

a notice of appeal must be filed within thirty days after the court signs the judgment.

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TEX. R. APP. P. 26.1. If, as here, a party files a timely motion for new trial or a motion

to modify the judgment, then the notice of appeal must be filed within ninety days

after the judgment is signed. TEX. R. APP. P. 26.1(a); see TEX. R. CIV. P. 329b(a), (g)

(stating that motion for new trial and motion to modify, correct, or reform judgment

must be filed within thirty days after judgment or order is signed).

The deadline to file a notice of appeal may be further extended if, within

fifteen days after the deadline, the party seeking to appeal files a notice of appeal

and a motion for extension of time to file a notice of appeal. TEX. R. APP. P. 26.3.

We will necessarily imply a motion for extension of time when an appellant acting

in good faith files a notice of appeal beyond the deadline but within the fifteen-day

period in which the appellant would be entitled to seek an extension of time to file a

notice of appeal. Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40,

42 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also Verburgt v. Dorner, 959

S.W.2d 615, 617 (Tex. 1997).

The county court signed the final default judgment on June 4, 2021. Sarjak

filed a motion to vacate the default judgment and for new trial on July 2, which was

timely because it was filed within thirty days after the judgment was signed. See

TEX. R. CIV. P. 329b(a), (g). The filing of this motion extended Sarjak’s deadline to

file a notice of appeal of the default judgment to ninety days after the judgment was

signed, or until September 2, 2021. See TEX. R. APP. P. 26.1(a). Because September

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2 was Sarjak’s deadline to file a notice of appeal, Sarjak had an additional fifteen

days to file a timely notice of appeal of the default judgment accompanied by a

motion to extend time. See TEX. R. APP. P. 26.3; Brown Mech. Servs., 377 S.W.3d at

42. Thus, Sarjak’s ultimate deadline to file a notice of appeal of the final default

judgment was September 17, 2021, which is ninety plus fifteen days after the

judgment was signed on June 4. See TEX. R. APP. P. 26.1(a), 26.3. Sarjak filed its

notice of appeal on September 21, 2021—four days after this final deadline. Thus,

Sarjak did not timely file a notice of appeal of the final default judgment.

However, Sarjak does not challenge the default judgment on appeal. Rather,

it challenges the order denying its special appearance, which was signed after the

final default judgment. Most post-judgment orders are not appealable because no

statute generally authorizes an appeal from post-judgment orders. Sunnyland Dev.,

Inc. v. Shawn Ibrahim, Inc., 597 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2020,

no pet.). However, section 51.014 does authorize an appeal from an order denying a

special appearance. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7). Such an appeal is

accelerated, and the notice of appeal must be filed within twenty days after the order

is signed regardless of whether the party filed a motion for new trial or other post-

judgment motion. TEX. R. APP. P. 28.1(a), (b), 26.1(b).

The county court signed the order denying Sarjak’s special appearance on

September 2, 2021. Section 51.014 authorized Sarjak to appeal this order, and Sarjak

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had twenty days to file a notice of appeal. See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(7); TEX. R. APP. P. 26.1(b). Sarjak filed the notice of appeal on

September 21, 2021, which is within twenty days after the order was signed.

Therefore, Sarjak timely filed its notice of appeal of the order denying its special

appearance and invoked this Court’s jurisdiction. See TEX. R. APP. P. 25.1(b).

The county court’s plenary power is only relevant to this inquiry insofar as

the court must have plenary power to act, including by ruling on a special

appearance. See Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 801 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied) (stating that plenary power or jurisdiction is

power to adjudicate, that is to grant or deny relief, and lack of jurisdiction is lack of

power to make any ruling); Martin v. Tex. Dep’t of Fam. & Protective Servs., 176

S.W.3d 390, 393 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“Judicial action

taken after the trial court’s plenary power has expired is void.”). Lack of plenary

power deprives a trial court of the power to act, but it does not deprive this Court of

our appellate jurisdiction to review the challenged action assuming the appeal has

been timely perfected. See Martin, 176 S.W.3d at 394 (stating that party may appeal

judgment entered after trial court lost plenary power, and appellate court should

declare such judgment void, vacate judgment, and dismiss appeal). The parties do

not dispute that the county court had plenary power on September 2 when it ruled

on the special appearance. Sarjak was required to perfect its appeal according to the

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requirements in the Rules of Appellate Procedure, as discussed above. Whether the

county court had plenary power when Sarjak filed the notice of appeal is irrelevant

because the court was not acting when Sarjak filed the notice of appeal.

We disagree with Semons that this case has become moot. “A case becomes

moot if, since the time of filing, there has ceased to exist a justiciable controversy

between the parties—that is, if the issues presented are no longer ‘live,’ or if the

parties lack a legally cognizable interest in the outcome.” Heckman v. Williamson

Cnty., 369 S.W.3d 137, 162 (Tex. 2012) (quoting Williams v. Lara, 52 S.W.3d 171,

184 (Tex. 2001)). That is, “a case is moot when the court’s action on the merits

cannot affect the parties’ rights or interests.” Id. Courts cannot decide a case that has

become moot, and courts must vacate any order or judgment previously issued and

dismiss the case for lack of jurisdiction. Id.

Both parties have a legally cognizable interest in the outcome of this appeal.

If Sarjak is successful on appeal and we determine that the county court lacked

personal jurisdiction over Sarjak, we must vacate the final default judgment and

dismiss the case for lack of jurisdiction. See id.; see also Koch Graphics, Inc. v.

Avantech, Inc., 803 S.W.2d 432, 433 (Tex. App.—Dallas 1991, no pet.) (“[I]t has

been held that, within the period when the trial court has plenary power over its

judgment, the court may address a special appearance.”). In doing so, Sarjak would

be relieved of liability for the default judgment entered against it. Conversely, if we

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affirm the denial of Sarjak’s special appearance, Semons would maintain her right

to the monetary award reflected in the default judgment. Thus, a justiciable

controversy exists between the parties: whether Texas courts have personal

jurisdiction over Sarjak such that the final default judgment is valid and enforceable.

We therefore conclude that this case is not moot.

Waiver for Inadequate Briefing

We next address Semons’s argument that Sarjak waived its issues on appeal

because its appellate brief does not cite to the record on appeal but instead cites only

to documents attached in the appendix of its brief. Sarjak responds that the

documents included in the appendix to its appellate brief are contained in the record

on appeal, and it cited to the documents both in the appendix and in the appellate

record.

Our review is confined to the formal record on appeal, which “consists of the

clerk’s record and, if necessary to the appeal, the reporter’s record.” TEX. R. APP. P.

34.1; see Tex. Windstorm Ins. Ass’n v. Jones, 512 S.W.3d 545, 552 (Tex. App.—

Houston [1st Dist.] 2016, no pet.) (“Evidence that is not contained in the appellate

record is not properly before this Court.”). “Documents attached as exhibits or

appendices to briefs do not constitute formal inclusion of such documents in the

record on appeal, and we cannot consider matters outside the record in our review.”

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Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 305 (Tex. App.—Houston

[1st Dist.] 2020, no pet.).

The Rules of Appellate Procedure allow parties to append documents in the

record on appeal to their appellate briefs. See TEX. R. APP. P. 38.1(k). Indeed, an

appellant is required to include certain documents in an appendix, such as the order

or judgment being appealed; the jury charge and verdict, if any; findings of fact and

conclusions of law, if any; and the text of legal authority and documents that are

“central to the argument.” TEX. R. APP. P. 38.1(k)(1). The appellant’s appendix may

also include “any other item pertinent to the issues or points presented for review,”

including relevant legal authority and documents not otherwise required to be

contained in an appendix. TEX. R. APP. P. 38.1(k)(2).

Our review of the appendix to Sarjak’s brief reveals that it includes three

documents: (1) Semons’s original petition; (2) Sarjak’s letter offering employment

to Semons; and (3) one of two franchise tax reports relied upon by Semons in her

special appearance response. Each of these documents is labelled with the page

number on which it appears in the clerk’s record. Thus, the documents appended to

Sarjak’s brief are formally included in the record on appeal. And as Sarjak notes,

each citation in its brief to a document in the appendix includes a parallel citation to

the document in the appellate record. See TEX. R. APP. P. 38.1(g) (requiring

statement of facts to be supported by record references), (i) (requiring argument to

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be supported by citations to record). We conclude that Sarjak has not waived its

appeal for inadequate briefing.

Waiver of Special Appearance

We next address Semons’s argument that Sarjak waived its special appearance

and entered a general appearance because it filed its motion to vacate and for new

trial before it filed its special appearance. Sarjak responds that it filed its special

appearance before filing its motion to vacate and for new trial, and it points to the

timestamps on each document showing the date and time the respective documents

were filed in the county court.

Rule of Civil Procedure 120a governs special appearances. This rule

authorizes any party to object to a Texas court’s personal jurisdiction over the party

by filing a special appearance. TEX. R. CIV. P. 120a(1). A special appearance must

be made by sworn motion filed prior to any other pleading or motion, which is

known as the “due-order-of-pleading” requirement.3 Id; PetroSaudi Oil Servs. Ltd.

v. Hartley, 617 S.W.3d 116, 136 (Tex. App.—Houston [1st Dist.] 2020, no pet.)

(quoting Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004)). “Every

appearance, prior to judgment, not in compliance with [Rule 120a] is a general

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Rule 120a also contains a due-order-of-hearing requirement, which states that a

special appearance “shall be heard and determined before a motion to transfer venue

or any other plea or pleading may be heard.” TEX. R. CIV. P. 120a(2). Neither party

disputes that Sarjak’s special appearance was heard before any other plea or

pleading that it filed in the county court.

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appearance.” TEX. R. CIV. P. 120a(1); see Nationwide Distrib. Servs., Inc. v. Jones,

496 S.W.3d 221, 224 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (stating that

failure to strictly comply with Rule 120a, including its due-order-of-pleading

requirement, constitutes general appearance and waives challenge to personal

jurisdiction).

Sarjak did not appear in the county court before the court entered the default

judgment against it. After the default judgment was signed, Sarjak filed three

pleadings: (1) a special appearance, (2) a motion to vacate the default judgment and

for new trial, and (3) an answer and affirmative defenses. In the clerk’s record,

Sarjak’s motion to vacate and for default judgment appears first in sequential order,

followed by Sarjak’s special appearance and then its answer. All three documents

were filed on July 2, 2021. According to the file stamps on each document, Sarjak

filed its special appearance at 4:01 p.m. It filed its motion to vacate and for new trial

at 4:09 p.m. And it filed its answer at 4:20 p.m. Thus, the special appearance was

filed before any other pleading or motion, and therefore Sarjak complied with the

due-order-of-pleading requirement in Rule 120a. We conclude that Sarjak did not

waive its special appearance.

Special Appearance

Finally, we reach Sarjak’s sole issue on appeal: whether it purposefully

availed itself of the privilege of conducting activities in Texas, thus invoking the

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benefits and protections of Texas’s laws and subjecting it to personal jurisdiction in

Texas courts. See Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 559

(Tex. 2018).

A. Standard of Review

Whether a court may exercise personal jurisdiction over a nonresident

defendant is a question of law that we review de novo. Id. at 558. In resolving this

question of law, however, courts frequently must resolve questions of fact. BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). When, as

here, the county court did not issue findings of fact and conclusions of law, all

relevant facts that are necessary to support the judgment and supported by the

evidence are implied. Old Republic, 549 S.W.3d at 558.

In a special appearance, the court is the sole judge of the witnesses’ credibility

and the weight to be given their testimony. Predator Downhole Inc. v. Flotek Indus.,

Inc., 504 S.W.3d 394, 402 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We will

not disturb a county court’s resolution of conflicting evidence that turns on the

credibility or weight of the evidence. Id. We will affirm the county court’s ruling on

any legal theory that is supported by record evidence. Id.

The parties bear shifting evidentiary burdens of proof in a special appearance.

Old Republic, 549 S.W.3d at 559. The plaintiff bears the initial burden to plead

allegations sufficient to confer jurisdiction under the long-arm statute. Id. We

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consider allegations both in the plaintiff’s petition and in the plaintiff’s response to

the special appearance. Predator Downhole, 504 S.W.3d at 402. If the plaintiff meets

this initial burden, the burden shifts to the nonresident defendant to negate all bases

of personal jurisdiction alleged by the plaintiff. Old Republic, 549 S.W.3d at 559.

“Because the plaintiff defines the scope and nature of the lawsuit, the defendant’s

corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff’s

pleading.” Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010).

The defendant can negate jurisdiction on either a factual or a legal basis. Id.

at 659. Jurisdiction can be negated on a legal basis by showing that “even if the

plaintiff’s alleged facts are true, the evidence is legally insufficient to establish

jurisdiction.” Old Republic, 549 S.W.3d at 559 (quoting Kelly, 301 S.W.3d at 659).

Jurisdiction can be negated on a factual basis by presenting evidence that the

defendant’s “contacts with Texas fall short of purposeful availment.” Id. (quoting

Kelly, 301 S.W.3d at 659).

If the nonresident defendant produces evidence negating personal jurisdiction,

the burden shifts back to the plaintiff to show that the court has personal jurisdiction

over the defendant. Predator Downhole, 504 S.W.3d at 402.

B. Governing Law

Texas courts may assert personal jurisdiction over a nonresident defendant

when (1) the long-arm statute authorizes the exercise of jurisdiction; and (2) the

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exercise of jurisdiction is consistent with federal and state constitutional due process

guarantees. Old Republic, 549 S.W.3d at 558. The long-arm statute is satisfied by a

defendant doing business in Texas, including by contracting with a Texas resident

where either party is to perform the contract in Texas; by committing a tort in Texas;

or by recruiting Texas residents directly or through an intermediary located in Texas

for employment inside or outside of Texas. TEX. CIV. PRAC. & REM. CODE § 17.042.

Because the long-arm statute extends personal jurisdiction “as far as the federal

constitutional requirements of due process will allow,” the statute is satisfied if the

exercise of personal jurisdiction comports with federal due process. Moki Mac River

Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007) (quoting Guardian Royal

Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.

1991)).

Before a court may exercise personal jurisdiction over a nonresident

defendant, the defendant must have “certain minimum contacts with [the forum

state] such that the maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.’” Old Republic, 549 S.W.3d at 559 (quoting Int’l

Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S.

310, 316 (1945)). A nonresident defendant “establishes minimum contacts with a

state when it ‘purposefully avails itself of the privilege of conducting activities

within the forum state, thus invoking the benefits and protections of its laws.’” Id.

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(quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338

(Tex. 2009)).

Courts consider three factors when determining whether a defendant

purposefully availed itself of the privilege of conducting activities in Texas:

First, only the defendant’s contacts with the forum are relevant, not the

unilateral activity of another party or a third person. Second, the

contacts relied upon must be purposeful rather than random, fortuitous,

or attenuated. . . . Finally, the defendant must seek some benefit,

advantage or profit by availing itself of the jurisdiction.

Id. (quoting Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 151 (Tex.

2013)). A defendant’s activities “must justify a conclusion that the defendant could

reasonably anticipate being called into a Texas court.” Id. (quoting Retamco

Operating, 278 S.W.3d at 338).

A defendant’s contacts with a forum state may give rise to either general or

specific personal jurisdiction. Id. General jurisdiction, which is not at issue here,

requires that the nonresident defendant’s “affiliations with the state are so

continuous and systematic as to render [it] essentially at home in the forum State.”

Id. at 565 (quoting TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016)).

Specific jurisdiction, which is in dispute here, arises when the plaintiff’s

causes of action against the nonresident defendant arise from or relate to the

defendant’s purposeful in-state activities. Moki Mac, 221 S.W.3d at 576. A specific

jurisdiction analysis focuses on the relationship between the forum, the defendant,

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and the litigation. Old Republic, 549 S.W.3d at 559. The contacts must be both

purposeful and substantially connected to the operative facts of the litigation. Id. at

559–60; Moki Mac, 221 S.W.3d at 585. The operative facts of the litigation are those

facts that “will be the focus of the trial, will consume most if not all of the litigation’s

attention, and the overwhelming majority of the evidence will be directed to that

question.” Moki Mac, 221 S.W.3d at 585; Fuji Elec. Co. v. Perez, 615 S.W.3d 508,

520 (Tex. App.—Houston [1st Dist.] 2020, no pet.). “Specific jurisdiction must be

established on a claim-by-claim basis unless all the asserted claims arise from the

same forum contacts.” M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co.,

512 S.W.3d 878, 886 (Tex. 2017); Moncrief Oil, 414 S.W.3d at 150–51.

C. Jurisdictional Allegations and Evidence

In her petition, Semons named Sarjak as a defendant and alleged its status as

a foreign entity with a registered agent in Texas. She alleged that Majumdar, an

employee of Sarjak, hired her as an executive director for Sarjak to oversee its

operations in the United States. She alleged that she worked at Majumdar’s direction.

For example, Majumdar directed Semons to set up Sebert Shipping as a Texas

corporation, and she filed the necessary paperwork with the appropriate regulatory

agencies to do so.

When Majumdar moved to Texas to run Sebert Shipping, he began treating

Semons less favorably than male employees. After Semons refused to attempt

21

collection of certain tariffs, Majumdar began constantly yelling at, belittling, and

embarrassing Semons in front of her coworkers. Majumdar eventually terminated

her for refusing to collect the tariffs. Semons asserted three causes of action against

Sarjak for gender discrimination, wrongful termination, and tortious interference

with her employment contract.

In her response to Sarjak’s special appearance, Semons argued that Sarjak

directly hired her and is the sole owner of Sebert Shipping. See Predator Downhole,

504 S.W.3d at 402 (stating that plaintiff can meet initial burden to allege sufficient

jurisdictional facts through its petition and special appearance response). As proof

that Sarjak hired her, Semons relied on a September 2016 letter offering her

employment. As proof that Sarjak is the sole parent company of Sebert Shipping,

Semons relied on two franchise tax reports filed in Texas by Sebert Shipping. Both

reports list Sarjak as the 100% owner of Sebert Shipping and list Majumdar as the

sole officer of Sebert Shipping.

Semons’s allegations and evidence in her petition and special appearance

response satisfy the “doing business” requirement in the long-arm statute. See TEX.

CIV. PRAC. & REM. CODE § 17.042. Semons alleged that Sarjak conducts

international shipping business in Texas, that it entered into an employment contract

with her to work in Texas, that it employed her in Texas, and that it vicariously

committed torts against her in Texas causing her harm in Texas. See id. (stating that

22

long-arm statute extends to nonresident “doing business” in Texas, which includes

contracting with Texas resident where contract to be performed in Texas,

committing tort in Texas, or recruiting Texas residents for employment in Texas).

Furthermore, the parties do not dispute that all of Semons’s claims arise from

the same forum contacts, and therefore these contacts meet Semons’s pleading

burden with respect to all of her claims against Sarjak. See M & F Worldwide, 512

S.W.3d at 886; Moncrief Oil, 414 S.W.3d at 150–51. Therefore, we conclude that

Semons satisfied her initial burden to plead facts establishing personal jurisdiction

over Sarjak for each of her claims asserted against it. See Old Republic, 549 S.W.3d

at 559.

D. Purposeful Availment

Because Semons satisfied her initial burden, the burden of proof shifted to

Sarjak to negate all potential bases of jurisdiction. See id. Semons’s allegations

define the scope and nature of the lawsuit, and therefore Sarjak’s “corresponding

burden to negate jurisdiction is tied to” Semons’s allegations. See Kelly, 301 S.W.3d

at 658.

Sarjak challenges only the purposeful availment prong of personal

jurisdiction, arguing that it lacks purposeful contacts with Texas. This is a challenge

to the legal basis of jurisdiction. See Old Republic, 549 S.W.3d at 559 (stating that

23

defendant negates legal basis for jurisdiction by showing that even if jurisdictional

allegations are true, evidence is legally insufficient to establish jurisdiction).

1. Imputed Forum Contacts

Sarjak primarily argues that Semons sued the wrong party because it did not

hire or employ her. Sarjak argues that its parent company, Sarjak India, 4 actually

hired Semons, but no evidence shows that Sarjak India’s forum contacts can be

imputed to Sarjak. It further argues that no evidence allows the contacts of Sebert

Shipping, Sarjak’s wholly owned Texas subsidiary, to be imputed to it either.

Texas law presumes that two separate corporations are distinct entities,

although this presumption may be rebutted so that one entity’s forum contacts may

be imputed to the second entity. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235

S.W.3d 163, 173, 175 (Tex. 2007). For example, when a parent company and its

subsidiary are alleged to be alter egos or in an agency relationship, one entity’s forum

contacts may be imputed to the other. Id. at 175; BMC Software, 83 S.W.3d at 798

4

Sarjak argues on appeal that there is no evidence in the clerk’s record supporting

Semons’s allegation that Sarjak India is the parent company of Sarjak. This is true,

but it ignores the representation made by Sarjak’s counsel to the county court during

the hearing on its special appearance, which appears in the reporter’s record, that

Sarjak “is a fully owned subsidiary of this Sarjak India.” This unchallenged judicial

admission establishes that Sarjak India is Sarjak’s parent company. See In re Est. of

Guerrero, 465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet.

denied) (stating that counsel’s statements on behalf of client can constitute judicial

admission that dispenses with production of evidence on issue and bars admitting

party from disputing it).

24

(“Personal jurisdiction may exist over a nonresident defendant if the relationship

between the foreign corporation and its parent corporation that does business in

Texas is one that would allow the court to impute the parent corporation’s ‘doing

business’ to the subsidiary.”).

The Texas Supreme Court has formulated the following inquiry to determine

whether a subsidiary’s forum contacts can be imputed to the nonresident parent

company for purposes of establishing personal jurisdiction over the parent:

To “fuse” the parent company and its subsidiary for jurisdictional

purposes, the plaintiffs must prove the parent controls the internal

business operations and affairs of the subsidiary. But the degree of

control the parent exercises must be greater than that normally

associated with common ownership and directorship; the evidence must

show that the two entities cease to be separate so that the corporate

fiction should be disregarded to prevent fraud or injustice.

PHC-Minden, 235 S.W.3d at 175; Cap. Fin. & Com. AG v. Sinopec Overseas Oil &

Gas, Ltd., 260 S.W.3d 67, 80 (Tex. App.—Houston [1st Dist.] 2008, no pet.). To

establish an alter-ego theory of jurisdiction, the plaintiff bears the burden to establish

that “the parent corporation exerts such domination and control over its subsidiary

that they do not in reality constitute separate and distinct corporate identities but are

one and the same corporation for purposes of jurisdiction.” PHC-Minden, 235

S.W.3d at 173 (quoting BMC Software, 83 S.W.3d at 798) (internal quotation marks

omitted).

25

a. Contacts Imputed from Sebert Shipping

Sarjak and Semons dispute whether Sarjak’s status as the sole parent company

of Sebert Shipping suffices to impute Sebert Shipping’s forum contacts to Sarjak. It

is undisputed that Sebert Shipping is a Texas corporation formed by Semons at

Majumdar’s direction, and Semons worked at Sebert Shipping’s Houston office. In

response to Sarjak’s special appearance, Semons introduced two franchise tax

reports that were filed in Texas in 2018 and 2019 listing Sarjak as Sebert Shipping’s

sole parent company. The parties do not rely on any other evidence relevant to the

issue of imputing Sebert Shipping’s forum contacts to Sarjak.

As stated above, the relationship between a parent company and its wholly

owned subsidiary alone is not sufficient to impute the subsidiary’s forum contacts to

the parent. See BMC Software, 83 S.W.3d at 798 (stating general rule that “courts

will not because of stock ownership or interlocking directorship disregard the

separate legal identities of corporations, unless such relationship is used to defeat

public convenience, justify wrongs, . . . protect fraud, or defend crime”). Rather,

Semons was required to prove that Sarjak controls Sebert Shipping’s internal

business operations and affairs to a degree greater than that generally associated with

common ownership and directorship. See PHC-Minden, 235 S.W.3d at 175. Neither

the franchise tax reports nor any other record evidence establishes Sarjak’s greater-

26

than-usual control over Sebert Shipping’s operations. Therefore, we conclude that

Sebert Shipping’s forum contacts may not be imputed to Sarjak. See id.

b. Contacts Imputed from Sarjak India

The parties primarily dispute whether Sarjak India’s forum contacts can be

imputed to Sarjak. Sarjak contends that the letter offering Semons employment

proves that Sarjak India—and not Sarjak—hired Semons. Sarjak further argues that

no evidence establishes that it hired or employed Semons, or that it controlled Sarjak

India to the degree required to fuse the two entities for jurisdictional purposes. We

note, however, that Sarjak does not argue that Sarjak India’s Texas contacts,

regardless of whether they can be imputed to Sarjak, are insufficient to subject Sarjak

India to personal jurisdiction in Texas.

Semons disputes that she was employed by some entity other than Sarjak. She

argues that Sarjak judicially admitted in its appellate brief that it is the same entity

as Sarjak India. She also argues that she communicated daily with both Sarjak and

Sarjak India, the two entities did not distinguish between themselves when

communicating with her, and they shared directors, managers, and officers.

We disagree with Semons that Sarjak judicially admitted that it is the same

entity as Sarjak India in its appellate brief. In its brief, Sarjak identified itself as a

“foreign India-based defendant . . . .” Sarjak vehemently disputes that it made such

a judicial admission, chalking it up to a drafting mistake that is inconsistent with the

27

section of its brief identifying the parties and their counsel. A judicial admission

results when a party makes a deliberate, clear, and unequivocal statement of fact that

conclusively disproves a right of recovery or defense. Ledesma v. City of Houston,

623 S.W.3d 840, 846 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). As Sarjak

correctly notes, its brief also identifies Sarjak as a “company headquartered in

Singapore,” and therefore the statement referring to India is equivocal. Cf. id.

Furthermore, even if Sarjak had clearly and unequivocally identified itself as an

Indian entity, this is not a clear and unequivocal statement that it and Sarjak India

are the same entity. Cf. id. Thus, we disagree with Semons that Sarjak judicially

admitted it is the same entity as Sarjak India.

We also disagree with Semons that Sarjak India’s contacts can be imputed to

Sarjak because the two entities did not distinguish between themselves in their

regular communication with Semons or because the two entities share directors,

managers, and officers. Semons did not make these allegations in either her petition

or her response to the special appearance. See Old Republic, 549 S.W.3d at 559

(stating that plaintiff bears initial burden to plead facts establishing jurisdiction);

Predator Downhole, 504 S.W.3d at 402 (stating that plaintiff can satisfy initial

pleading burden in either petition or special appearance response). These allegations

define the scope and nature of Semons’s lawsuit, and therefore Semons’s

jurisdictional allegations serve as the basis for Sarjak’s corresponding burden to

28

negate jurisdiction. See Kelly, 301 S.W.3d at 658. Because Semons did not assert

these jurisdictional allegations in the trial court, the burden of proof never shifted to

Sarjak to negate them. See Old Republic, 549 S.W.3d at 559.

Sarjak argues that the letter offering employment to Semons proves that

Sarjak India, a separate entity, hired Semons, and no record evidence establishes the

degree of control between the two entities necessary to subject Sarjak to personal

jurisdiction in this case. The letter includes the following relevant language. The

letterhead states “Sarjak Container Lines,” a phrase which appears in both Sarjak’s

and Sarjak India’s similar names. Printed at the bottom of the letter is Sarjak India’s

name: “Sarjak Container Lines PVT. LTD.” The letter thanks Semons for

“understanding the role at Sarjak Container Lines Pvt Ltd.” and informs her that her

role will be “Manager—Commercial” and she will be stationed in Houston. The

letter states that her “career at Sarjak Container Lines will be exciting, challenging

and rewarding.” Finally, the letter is signed by someone on behalf of Sarjak India

and bears a stamp with Sarjak India’s name and the word “Mumbai.”

We agree with Sarjak that this letter alone does not support an alter ego theory

of jurisdiction. We presume that Sarjak and Sarjak India are distinct entities for

jurisdictional purposes. See PHC-Minden, 235 S.W.3d at 173; BMC Software, 83

S.W.3d at 798. This letter does not mention Sarjak. Nothing in the letter indicates

that Sarjak India controls the internal business operations and affairs of Sarjak—or

29

vice versa—such that the two entities cease to be separate. See PHC-Minden, 235

S.W.3d at 175. Thus, the employment letter does not satisfy Semons’s burden to

overcome the presumption that Sarjak and Sarjak India are separate entities for

jurisdictional purposes. See id. at 173.

c. Contacts Imputed from Majumdar

We note, however, that other bases support personal jurisdiction over Sarjak.

The thrust of Semons’s complaint against Sarjak is that its employees’ in-state

tortious activity caused her harm, and Sarjak denies neither that its employees

participated in the tortious activity nor that such activity constitutes sufficient

minimum contact with Texas. As discussed below, Texas law allows an employee’s

forum contacts to be imputed to the employer.

Semons alleged that Majumdar hired her to oversee Sarjak’s United States

operations because Majumdar and Bigdeli “both lived overseas,” making Semons

“the only employee of Sarjak in the [] United States.” Majumdar also controlled

Semons’s work. He directed her to complete the paperwork required to form Sebert

Shipping as a Texas corporation, and she did so. When Majumdar’s visa was

approved and he moved to Texas, Semons found him an apartment and drove him

to and from work for several months. Majumdar began treating Semons less

favorably than a male colleague in a position inferior to Semons’s position, including

by having her directly report to the colleague, by giving up her larger office to the

30

colleague in exchange for a smaller office, and by being paid nearly half of the

colleague’s salary. Both Majumdar and the colleague treated her “very cruelly.”

Sarjak ordered Semons to collect $500,000 in tariffs that went uncollected by

Sarjak’s prior agent. Semons learned that the paperwork required to collect the tariffs

had not been filed, making the tariffs uncollectable, but Majumdar nevertheless

demanded that Semons collect the tariffs anyway. Semons refused to collect the

tariffs, which “enraged” Majumdar and caused him to yell at, belittle, and embarrass

Semons in front of her coworkers. Semons was eventually terminated for refusing

to collect the tariffs. She also alleged that these actions interfered with her

employment contract.

It is well established that, “even without other contacts, jurisdiction would

exist if [a foreign company] committed a tort while in the state.” Moncrief Oil, 414

S.W.3d at 148 (quoting Moncrief Oil Int’l Inc. v. OAO Gazprom, 481 F.3d 309, 314–

15 (5th Cir. 2007)). Furthermore, Texas law recognizes an agency-based theory of

imputed contacts, which allows forum contacts of an agent or employee to be

imputed to the foreign principal. Stocksy United v. Morris, 592 S.W.3d 538, 547

(Tex. App.—Houston [1st Dist.] 2019, no pet.); Huynh v. Nguyen, 180 S.W.3d 608,

622 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“The Texas contacts of agents

or employees are attributable to their nonresident principals.”). Sarjak does not

mention or dispute any of these jurisdictional allegations regarding its employees’

31

in-state tortious activity. See Old Republic, 549 S.W.3d at 559 (stating that

nonresident defendant bears burden to negate all bases of personal jurisdiction

alleged by plaintiff).

The commission of these torts was purposeful, not random, fortuitous, or

attenuated. See Old Republic, 549 S.W.3d at 559. Sarjak was not unilaterally haled

into making these contacts, but rather it sent Majumdar to Texas and, while in Texas,

Majumdar allegedly committed torts against Semons. See Moncrief Oil, 414 S.W.3d

at 153 (stating that foreign defendant’s Texas contacts were purposeful, not random,

fortuitous, or unilateral activities of third party, because defendant agreed to attend

meetings in Texas at which it accepted trade secrets that it later allegedly

misappropriated).

Moreover, the entire series of events that Semons complains about occurred

because Sarjak desired to form a Texas subsidiary to conduct international shipping

business. This shows that Sarjak sought and obtained a benefit, advantage, and profit

by availing itself of the privilege of conducting activities in Texas, thus invoking the

benefits and protections of its laws. See id. (stating that defendant’s contacts were

purposeful and substantial because the activity “was aimed at getting extensive

business in or from the forum state”) (quoting Michiana Easy Livin’ Country, Inc.

v. Holten, 168 S.W.3d 777, 789–90 (Tex. 2005)). We therefore conclude that

32

Majumdar’s forum contacts are properly imputed to Sarjak, and these purposeful

forum contacts subject Sarjak to personal jurisdiction in Texas courts.

2. Other Forum Contacts

There are other forum contacts alleged by Semons that Sarjak either did not

address or did not rely on any evidence to negate.5

a. Conducting Business, Advertising, Registering Corporation, and

Having Registered Agent in Texas

Sarjak argues that it does not conduct business in Texas, does not advertise in

Texas, is not a registered entity in Texas, and does not have a registered agent for

service of process in Texas. To support these arguments on appeal, Sarjak relies

solely on a “Taxable Entity Search” page on the website of the Texas Comptroller

of Public Accounts. See Taxable Entity Search, TEXAS COMPTROLLER OF PUBLIC

ACCOUNTS, https://mycpa.cpa.state.tx.us/coa (last visited August 1, 2022). In a

parenthetical, Sarjak directs the Court to “see” the “search” there without providing

any parameters to conduct a search for information that might support its arguments.

Nor does Sarjak otherwise explain how the website supports its arguments.

5

On appeal, Semons argues that Sarjak submitted to jurisdiction in Texas by

participating in mediation of her discrimination and retaliation claims. Semons did

not assert this jurisdictional allegation in the trial court, and therefore it was not a

basis for jurisdiction that Sarjak was required to negate. See Old Republic Nat’l Title

Ins. Co. v. Bell, 549 S.W.3d 550, 559 (Tex. 2018) (stating that burden shifts to

nonresident defendant to negate jurisdictional allegations only after plaintiff meets

initial burden to plead sufficient jurisdictional allegations).

33

On the website, a user can search for a taxable entity by tax ID, entity name,

or file number. See id. A search of “Sarjak” on the website reveals one entity, Sarjak

Enterprises Inc., a corporation formed in California. See id. This result lists the

entity’s taxpayer number, mailing address, state of formation, registered agent’s

name and address, “Effective SOS Registration Date,” “Texas File Number,” and

whether the entity has a right to transact business in Texas. See id. Presumably, these

results are provided for every listed entity, although there is no indication whether

all this information is provided for every listed entity or whether any additional

information is provided for some entities. Regardless, these results say nothing about

whether Sarjak advertises in Texas—an allegation Semons does not make—or

whether Sarjak conducts any business in Texas even if it does not have a right to

transact business here. See id. Thus, we cannot say this evidence negates jurisdiction

based on conducting business in Texas.6 See Old Republic, 549 S.W.3d at 559.

b. Communications

Finally, Semons alleged that Sarjak communicated with her while in Texas,

directly and through Majumdar. She alleged that she was the only Sarjak employee

in Texas before Majumdar moved there, and that Majumdar directed her work from

6

We note that the declaration of Sarjak India’s president, upon which Sarjak’s special

appearance partially relied, denied that Sarjak conducted business in Texas. But

Sarjak did not rely on this declaration to support its argument on appeal that it did

not conduct business in Texas.

34

overseas. Her communications with Sarjak included having her set up Sebert

Shipping as Sarjak’s wholly owned Texas subsidiary. Semons also communicated

with Sarjak about the issues she encountered while attempting to collect tariffs that

Sarjak’s prior agent failed to collect. Sarjak in turn communicated with a tariff

company and its legal counsel before advising Semons that she could not collect the

tariffs.

We look to the quality and nature of communications between a resident and

nonresident to determine whether the communications establish purposeful

availment. Old Republic, 549 S.W.3d at 560; see Michiana, 168 S.W.3d at 790–92

(disapproving of direct-a-tort theory under which specific jurisdiction is necessarily

established merely by allegations or evidence that nonresident directed tort at Texas

resident from another state). Sarjak’s communications with Semons concerned her

employment and the collection of tariffs owed to Sarjak. Sarjak does not dispute that

these communications are purposeful contacts with Texas that are substantially

related to the operative facts of the litigation. See Old Republic, 549 S.W.3d at 559.

Therefore, Sarjak did not negate Semons’s jurisdictional allegations regarding

communications between Sarjak and Semons. See id.

3. Substantial Connection and Fair Play and Substantial Justice

Sarjak does not dispute that its forum contacts are substantially related to the

operative facts of Semons’s claims. See Moki Mac, 221 S.W.3d at 585 (holding that

35

nonresident defendant’s purposeful forum contacts must be substantially connected

to operative facts of litigation to confer specific personal jurisdiction on defendant).

Nor does Sarjak dispute that exercising jurisdiction over it would not offend

“traditional notions of fair play and substantial justice.” See Old Republic, 549

S.W.3d at 559 (quoting Int’l Shoe Co., 326 U.S. at 316). Because Sarjak

“purposefully avail[ed] itself of the privilege of conducting activities [in Texas], thus

invoking the benefits and protections of its laws,” we conclude that the trial court

did not err by denying Sarjak’s special appearance. See id. (quoting Retamco

Operating, 278 S.W.3d at 338).

We overrule Sarjak’s sole issue on appeal.

Conclusion

We affirm the county court’s order denying Sarjak’s special appearance.

April L. Farris

Justice

Panel consists of Justices Landau, Guerra, and Farris.

36