Opposition — Helicopteros Nacionales De Colombia, SA v. Hall

Office. Supreme Court, U.S.

FILED

FEB 3 1983

EVAS,

CLERK

NO, 82-1127

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

HELICOPTEROS NACIONALES

DE COLUMBIA, S.A.,

Petitioner

Vv.

ELIZABETH HALL, et al.,

Respondents

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

GEORGE E, PLETCHER

Counsel for Respondents

2800 Two Houston Center

Houston, Texas 77010

(713) 654-4464

Of Counsel:

HELM, PLETCHER & HOGAN

2800 Two Houston Center

909 Fannin Street

Houston, Texas 77010

(713) 654-4464

Alpha Law Brief Co., Inc.—5606 Parkersburg—Houston, Texas 77036—223-3003

I

QUESTIONS PRESENTED FOR REVIEW

Respondents, being dissatisfied with the presentation of

Petitioner, submit the following:

1. Were the contacts and business activities of the

non-resident defendant in Texas of such nature, extent

and substance to justify the assertion of in personam

jurisdiction by the Supreme Court of Texas?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...... AP ry I

OCTET COIS cs occa cvaeccdkdaeevenmescereedaens 1

CREE REI vk o.oxk ce cndctcccdevaceuuccenermin 1

SEE n.n okt 4000bi00ebhs seen pe penenunneas 2

CONSTITUTIONAL PROVISION INVOLVED ........ 2

CAG Gr Meee GAME S00 cccdovavctecscuceves 2

SUMMARY OF ARGUE vcccccccvenvessvichescs 2

PPE, 3s wreak a veawcbar sc cbeahansawanesna coe 3

SS. . c ccceenséscadlenseuoterneuenccereduts 5

CERT Ge SRV MD 660i cvs svciccesés cweebes 8

TABLE OF AUTHORITIES

CASES Page

Conn v. Whitmore, 342 P.2d 871 (Utah 1959) .......... 7

Hanson v. Denkla, 357 U.S. 235 (1958) .........0c ees 5

International Shoe Company v. Washington, 326 U.S. 310

dal tin think es bien Ge

Pee On Te, BOGE). cpckvenewnrecscesiensevecr 7

Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437 :

CREED ccccccccccsvencccsnoucsdoncvesncesbdpecases

Rosenberg Brothers & Co. v. Curtis Brown Co., 260 U.S.

GE SEOD ons vencccneccecsseenssdasanoseuciewenes 6

—— r v. Parke, Davis & Co., 423 F.2d 584 (lst Cir.

SEN a ics occcneed nouns see teuakhdade mone tteneeeee 6

World-Wide Volkswagen Corp. v. Woodson, 444 US. 282

EUUEEE cccvesss0008000006000000000000Rs EE $,6,7

NO, 82-1127

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

HELICOPTEROS NACIONALES

DE COLUMBIA, S.A.,

Petitioner

Vv.

ELIZABETH HALL, et al.,

Respondents

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

Respondents request this Court to deny the Petition

for Writ of Certiorari filed herein by Petitioner,

OPINION BELOW

The final opinion, concurring opinion and dissenting

opinion are reported at 638 S.W.2d 870 (Tex. 1982)

at

and are reproduced in Petitioner's Appendix, la.

2

JURISDICTION

Jurisdictional requirements are adequately set forth in

Petition, p. 2.

CONSTITUTIONAL PROVISION INVOLVED

It is Respondents’ contention that the only constitu-

tional provision involved is the due process clause of the

Fourteenth Amendment which is set forth in the Petition,

p. 2.

STATEMENT OF THE CASE

The facts material to the question presented appear in

the final opinion of the Supreme Court of Texas, Peti-

tioner’s Appendix 1A,

In Petitioner's statement of the case these inaccuracies

should be noted:

A. Williams-Sedco-Horn, decedents’ employer, was not

headquartered in Oklahoma, but in Houston, Texas.

B. The statement that Helicol’s officer had preliminary

discussions in Houston, Texas about the contract is

incorrect. The contract provisions were finalized and

agreed upon at this meeting.

SUMMARY OF ARGUMENT

Sufficient evidence and reasonable inferences thereon

support the conclusions of the Texas Supreme Court that

Petitioner was amenable to jurisdiction.

3

ARGUMENT

I,

Petitioner asserts that the non-resident’s sole contacts

wtih the State of Texas involved equipment purchases and

a single contract discussion with decedents’ employer in

Texas, That assertion is simply not factually accurate.

The Texas Supreme Court found the facts to be:

l.

The contract which brought Respondents’ decedents

and Petitioner together was negotiated in Houston,

Texas between Helicol and decedents’ employer,

Williams-Sedco-Horn,

Helicol purchased substantially all of its helicopter

fleet in Fort Worth, Texas.

It did approximately $4,000,000 worth of business

in Fort Worth, Texas, from 1970 through 1976

as purchaser of equipment, parts and services. This

consisted of spending an average of $50,000 per

month with Bell Helicopter Company, a Texas

corporation.

It negotiated in Houston, Harris County, Texas,

with a Texas resident, which negotiation resulted

in the contract to provide the helicopter service

involving the crash leading to this cause of action

(previously mentioned) and wherein Helicol agreed

to obtain liability insurance payable in American

dollars to cover a claim such as this.

It sent pilots to Fort Worth, Texas to pick up heli-

copters as they were purchased from Bell Helicopter

and fly them from Fort Worth to Colombia.

It sent maintenance personnel and pilots to Texas

to be trained.

es

4

It had employees in Texas on a year-round rotation

basis.

It received roughly $5,000,000 under the terms and

provisions of the contract in question here which pay-

ments were made from First City National Bank

in Houston, Texas; and

It directed the First City National Bank of Houston,

Texas to make payments to Rocky Mountain Heli-

copters pursuant to the contract in question, (In-

volved leasing of a large helicopter capable of mov-

ing heavier loads for Williams-Sedco-Horn).

The Supreme Court then concluded that “. . . Helicol’s

numerous and substantial contacts do constitute ‘doing

business’ in this state. . ." (Petitioner's App. p. 7a)

The concurring opinion properly adds to the factors

just mentioned these matters:

2.

They (Helicol) directly secure the services of the

Texas markets.

Maintain employees on a year-round basis and 26

times sent officials of their company to Texas,

In this multi-million dollar business in Texas, Heli-

col has availed itself of the privilege and benefits

of Texas law,

. Helicol’s numerous and purposeful activities in and

contact with Texas were grounded on the expecta-

tion, or necessity, of invoking the benefits and pro-

tection of Texas law.

It appears that the Texas Supreme Court, the dissent-

ing judges and petitioner are all in agreement that the

United States Supreme Court has laid down certain basic

principles:

5

1. Where a non-resident defendant’s activities in the

forum state are substantial and continuous, juris-

diction is permissible even if the cause of action

arises from activities entirely distinct from its ac-

tivities in the forum. Perkins v. Benquet Consoli-

dated Mining Co., 342 U.S. 437 (1952); Inter-

national Shoe Company v. Washington, 326 U.S.

310 (1945).

2. Where a non-resident defendant’s activities in the

forum state are incidental, transitory and infrequent,

jurisdiction is permissible if such activity gives rise

to the cause of action. /nternational Shoe Company

v. Washington, 326 U.S. 310 (1945).

3. Where a non-resident defendant has no contacts,

ties, or relations, the fact that the cause of action

arises in the forum state does not permit assumption

of jurisdiction. World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 282 (1980).

Obviously, each case must turn upon its own facts. The

Texas Supreme Court fully considered and correctly de-

cided the issues in this case by a proper application of

the law to the facts.

The facts demonstrated to the satisfaction of the Texas

Supreme Court that Petitioner was doing business in

Texas; so numerous, substantial and continuous were its

activities there.

The evidence demonstrates that Petitioner injected itself

into the business community of Texas and purposefully

availed itself of the privilege of conducting activities there.

Hanson v. Denkla, 357 U.S. 235, 253 (1958), and that

it had enough clear notice that it was subject to suit

there that it agreed to protect itself by procuring liability

6

insurance payable in American dollars. World-Wide Volks-

wagen Corp. v. Woodson, 444 U.S. 286 (1980).

The Texas Supreme Court’s opinion is in harmony

with the three United States Supreme Court’s decisions

cited above.

II.

The decision of the Texas Supreme Court in no manner

conflicts with Rosenberg Brothers & Co. v. Curtis Brown

Co., 260 U.S. 516 (1923).

The two cases are, indeed, factually dissimilar. On the

one hand, the only contact with the forum state was the

purchase of goods—on the other—systematic, prolonged,

substantial business dealings were conducted in the forum

state which included purchases.

It is difficult to conceive that this case, being nothing

more than a factual dispute, could have any effect on

other litigants, much less international trade.

If an alien corporation wishes to protect itself against

the assertion of jurisdiction, it need only limit its activities

to mere purchases. However, having significantly entered

the business community of a state as determined by the

quality, substantiality, continuity and systematic nature

of its activities it should expect to be subject to the juris-

diction of such state. Seymour v. Parke, Davis & Co.,

423 F.2d 584, 587 (1st Cir. 1970).

Helicol freely injected itself into the system of com-

merce in Texas. Having done so, it should “reasonably

anticipate being haled into court there”. World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 282, 297 (1980).

7

ITI.

This case and the two cited by Petitioner are virtual

opposites from a factual standpoint.

Conn v. Whitmore, 342 P.2d 871 (Utah 1959) in-

volved a single transaction between a Utah resident and

an illinois resident—the purchase of a horse. The law

applied by that court is in total accord with that applied

by the Texas Supreme Court.

Marshall Egg Transport Co. v. Bender-Goodman Co.,

148 N.W.2d 161 (Minn. 1967) was a suit on breach of

contract for the purchase of a load of eggs.

Jurisdiction was sought under that state’s single act

statute.

Its only similarity to this case is that a question of

jurisdiction was involved.

IV.

Petitioner asserts that a different test of due process

under the Fourteenth Amendment was applied since Peti-

tioner was an “alien corporation”. Again, Petitioner is

inaccurate. It attempts to utilize the language of a dis-

carded and abandoned sentence in the concurring opinion.

The opinion correctly holds that due process must be

universal in its application.

In proper context the concurring opinion was simply

reiterating this Court’s holding in World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 282 (1980) concerning the

importance of preserving the system of interstate federal-

ism and that such was not a consideration when another

country, rather than a co-equal sovereign state, is involved.

8

CONCLUSION

For these reasons the Petition for Writ of Certiorari

should be denied.

lly submitted,

. PLETCHER

Attorney for Respondents

Of Counsel:

HELM, PLETCHER & HOGAN

2800 Two Houston Center

909 Fannin Street

Houston, Texas 77010

(713) 654-4464

CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of January, 1983

three copies of this Brief of Respondents in Opposi-

tion to Petition For A Writ of Certiorari were mailed,

by first class mail, postage prepaid, to Hon. Thomas J.

Whalen, 1030 15th St., N. W., Suite 720, Washington,

D.C. 20005, counsel for Petitioner. I further certify that

all parties required to be se have been served.

GeorGf E. PLETCHER