                                                                                 ACCEPTED
                                                                              14-15-00517-cv
                                                             FOURTEENTH COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                        9/21/2015 8:38:30 AM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                          NO. 14-15-00517-CV

                                                             FILED IN
                                                      14th COURT OF APPEALS
                                                         HOUSTON, TEXAS
                        IN THE COURT OF APPEALS       9/21/2015 8:38:30 AM
                                                      CHRISTOPHER A. PRINE
                              FOR THE                          Clerk
            FOURTEENTH COURT OF APPEALS DISTRICT OF TEXAS




                         ROTENCO, S.A. DE C.V.,
                                      APPELLANT,
                                  V.

OSCAR PULIDO, INDIVIDUALLY AND D/B/A INTERNATIONAL INDUSTRIAL SUPPLIERS
         CO., SURTIND, INC., AND SURTIND IMP. & EXP., S.A. DE C.V.,
                                        APPELLEES.



                    REPLY BRIEF OF APPELLANT
                       ROTENCO, S.A. DE C.V.



JEFFREY HILLER                        BETH WATKINS
STATE BAR NO. 00790883                STATE BAR NO. 24037675
CACHEAUX CAVAZOS & NEWTON LLP         SHANNON K. DUNN
333 CONVENT STREET                    STATE BAR NO. 24074162
SAN ANTONIO, TEXAS 78205              LAW OFFICE OF BETH WATKINS
(210) 222-1642– PHONE                 926 CHULIE DRIVE
(210) 222-2453– FAX                   SAN ANTONIO, TEXAS 78216
JHILLER@CCN-LAW.COM                   (210) 225-6666– PHONE
                                      (210) 225-2300– FAX
                                      BETH.WATKINS@WATKINSAPPEALS.COM
                                      SHANNON.DUNN@WATKINSAPPEALS.COM

                   ATTORNEYS FOR APPELLANT
            ORAL ARGUMENT CONDITIONALLY REQUESTED
                                           TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

RESPONSE TO APPELLEE’S STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.      SURTIND IMPORT & EXPORT DOES NOT DISPUTE THAT IT MET WITH
        ROTENCO IN HOUSTON ON MANY OCCASIONS . . . . . . . . . . . . . . . . . . . . . . . 5

II.     SURTIND IMPORT & EXPORT’S CONTRACT WITH INTERNATIONAL,
        STANDING ALONE, IS SUFFICIENT TO SUPPORT TEXAS’S JURISDICTION . . . . 6

        A.       Surtind Import & Export’s Own Brief Essentially Admits That It
                 Did Business In Texas As A Matter Of Law . . . . . . . . . . . . . . . . . . 6

        B.       Surtind Import & Export Controlled The Progress Of This
                 Business Deal From Beginning To End, And It Did So In Texas
                  ...................................................... 9

III.    VELASQUEZ’S AFFIDAVIT—THE ONLY EVIDENCE SURTIND IMPORT &
        EXPORT PRESENTED IN SUPPORT OF ITS SPECIAL APPEARANCE—WAS
        NOT LEGALLY OR FACTUALLY SUFFICIENT TO NEGATE ROTENCO’S
        ASSERTION OF SPECIFIC JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




                                                       -ii-
                                          INDEX OF AUTHORITIES

CASES                                                                                                           PAGE

Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) . . . . . . . . . . . . . . . . . . 17, 18

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) . . . . . . . . . . . . . . . . . . . 16

Harbour Heights Development, Inc. v. Seaback, 596 S.W.2d 296 (Tex. Civ.
     App.–Houston [14th Dist.] 1980, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 17

Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408 (1984) . . . . . . . . . 7

Jackson v. Kincaid, 122 S.W.3d 440 (Tex. App.–Corpus Christi 2003, pet.
      granted, judgm’t vacated w.r.m.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Jackson v. Thweatt, 883 S.W.2d 171 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 2

Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) . . . . . . . . . . . . . . . . . 8, 9

Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17

Navasota Res., Ltd. v. Heep Petroleum, Inc., 212 S.W.3d 463 (Tex.
     App.–Austin 2006, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PT Intermediate Holding, Inc. v. LMS Consulting, LLC, No. 04-14-00827-CV,
      2015 Tex. App. LEXIS 9669, at *20-21 (Tex. App.–San Antonio Sept.
      16, 2015, no pet. h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rattner v. Contos, 293 S.W.3d 655 (Tex. App.–San Antonio 2009, no pet.)
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 13, 14, 15, 18

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16




                                                     -iii-
Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538 (Tex. App.–Houston [14th
      Dist.] 2007, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Spir Star AG v. Kimich, 310 S.W.3d 868 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . 13

Transportacion Especial Autorizada, S.A. de C.V. v. Seguros Comercial Am.,
     S.A. de C.V., 978 S.W.2d 716 (Tex. App.–Austin 1998, no writ) . . . . . . . 7

Urban v. Barker, No. 14-06-00387-CV, 2007 Tex. App. LEXIS 1633 (Tex.
     App.–Houston [14th Dist.] March 6, 2007, no pet.) . . . . . . . . . . . . . . . . 17

STATUTES AND RULES

Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Lexis 2015) . . . . . . . 7, 8, 9, 14, 17

Tex. R. Civ. P. 120a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Tex. R. Civ. P. 166a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                       -iv-
                 RESPONSE TO APPELLEE’S STATEMENT OF THE FACTS

      Surtind Import & Export has presented this Court with a list of facts that are

allegedly “undisputed by [Rotenco].” Br. of Appellee at 4-7. However, a number of

the facts in Surtind Import & Export’s list are not now and have never been

“undisputed,” and this Court should not treat them as such during its review of the

trial court’s grant of Surtind Import & Export’s special appearance.

      Surtind Import & Export claims it is undisputed that “Forum Oilfield

Technologies, Inc. (“Forum”) is a Louisiana corporation[.]” Br. of Appellee at 5. This

is not true. The lease agreement between Forum and International identifies Forum as

“a corporation organized under the laws of the State of Texas whose permanent

mailing address is” in Houston, Texas. CR 9. Moreover, Forum’s Senior Vice

President and General Counsel, James McCulloch, works out of Forum’s Houston

office. CR 183; CR 190-92; CR 195. At his office in Houston, McCulloch received

emails from both International and Surtind Import & Export about Rotenco’s lease of

the EDRs. CR 183; CR 190-92; CR 195. This is why Rotenco referred to Forum as a

Texas company throughout its opening brief—because the record shows that Forum

is a Texas company, and that Surtind Import & Export did business with it in Texas.

Compare CR 9, and CR 183, and CR 190-92, and CR 195, with Br. of Appellant at

x, 12, 17, 18.

                                         -1-
       Surtind Import & Export also alleges as an “undisputed” fact that it “was not

a party to the Lease Agreement.”1 Br. of Appellee at 5. But this fact is not even

undisputed within Surtind Import & Export’s own brief. Just one page after it claims

it was not a party to the lease agreement, Surtind Import & Export insists that it “was

unaware of Forum’s assignment of the Lease Agreement to Rotenco and did not

approve it.” Br. of Appellee at 6-7. Surtind Import & Export evidently believes that

Forum’s assignment of the lease to Rotenco was improper because Surtind Import &

Export was not given the chance to approve it. See id. Surtind Import & Export does

not explain, however, why it believes it should have been asked to “approve” the

assignment of a contract to which it was allegedly not a party. Compare id., with Br.

of Appellee at 5 (“Surtind [Import & Export] was not a party to the Lease

Agreement.”). Furthermore, while it is true that Surtind Import & Export is not

actually named as a signatory in the lease agreement, it is also true that Surtind Import

& Export voluntarily reached out to Forum and met with Forum and Rotenco in

Texas to plan and negotiate what would eventually become that contract and the rest

of the business deal that forms the basis for this lawsuit. CR 109; CR 150; CR 152-53.

       1
        Surtind Import & Export also contends that Rotenco is not party to the lease agreement. Br.
of Appellee at 7, 9. But because Forum assigned its rights under that lease to Rotenco, Surtind
Import & Export’s complaints that Rotenco “was not a party to the Lease Agreement” are of no
consequence to even the merits of this action, much less the narrower jurisdictional question that is
before this Court. Compare Br. of Appellee at 7, 9, with Jackson v. Thweatt, 883 S.W.2d 171, 175
(Tex. 1994) (“[A]n assignee receives the full rights of the assignor[.]”).

                                                -2-
      Surtind Import & Export further asserts that “[it] and Rotenco executed an

equipment lease agreement in Mexico and not Texas.” Br. of Appellee at 6. It does not

deny, however, that it met with Rotenco in Texas to negotiate the contract and plan

the business deal as a whole. CR 152-53. It also ignores that Rotenco’s lawsuit against

it does not arise out of the contract executed in Mexico, but instead out of the business

deal as a whole. See CR 37-41; see also CR 40 (alleging that “there is such unity

between [Surtind Import & Export and its sister entities Surtind, Inc. and

International] that the separateness of the single corporation has ceased, and holding

only a single corporation liable would result in injustice”).

      Finally, Surtind Import & Export contends that it “does not have a place of

business, offices, bank accounts[,] or employees in Texas.” Br. of Appellee at 7. This

assertion is contrary to its own website, which explicitly referred to its “Houston

office” and named two employees in that office who used “@surtindsa.com” email

addresses. CR 237. Furthermore, Surtind Import & Export does not deny Pulido’s

testimony that “the great majority” of International’s work involves acting as “the

U.S. arm of” Surtind Import & Export. CR 233. Nor does it deny that during this

business deal, International essentially acted as a shell that allowed Surtind Import &

Export to pass money and equipment into and out of Texas. CR 231; CR 138-44; CR

222-23.

                                           -3-
                           SUMMARY OF THE ARGUMENT

      When it organized and entered into the business deal at the center of this

lawsuit, Surtind Import & Export’s own website proudly proclaimed that it had an

office in Houston, Texas. It met in Texas with two Texas companies and Rotenco to

organize and negotiate the transfer of the EDRs to Rotenco. It did business in Texas

as a matter of law by entering into a contract with one of those Texas

companies—International—that called for International to perform its end of that

contract in Texas. It admitted in its discovery responses that the other Texas

company—Forum—had always been told it was dealing directly with Surtind Import

& Export. It used International—its “U.S. arm”—to funnel money to Forum through

Texas and to funnel equipment from Forum out of Texas. Finally, when its

relationship with Rotenco faltered, it reached out to Forum in Texas for help.

      But now that all of those voluntary, purposeful contacts with Texas have come

home to roost, Surtind Import & Export wants this Court to believe that it has

absolutely no connection to Texas and that it would offend due process to subject it

to suit in this State. This Court should reject this assertion for the charade it is and

reverse the trial court’s order granting Surtind Import & Export’s special appearance.




                                          -4-
                          ARGUMENT AND AUTHORITIES

I.    SURTIND IMPORT & EXPORT DOES NOT DISPUTE THAT IT MET WITH
      ROTENCO IN HOUSTON ON MANY OCCASIONS.

      Throughout its brief, Surtind Import & Export insists that “all but one” meeting

with Forum took place in Louisiana. Br. of Appellee at 5, 7. This argument ignores,

however, that “the minimum-contacts analysis is focused on the quality and nature of

the defendant’s contacts, rather than their number.” Rattner v. Contos, 293 S.W.3d

655, 660 (Tex. App.–San Antonio 2009, no pet.) (internal quotation marks omitted).

Because the record shows that Surtind Import & Export’s meeting in Houston with

Forum is what set the business deal underlying this lawsuit into motion, the “quality

and nature” of that contact with Texas supports Texas’s jurisdiction over Surtind

Import & Export. CR 150 (Forum met with Velasquez in Houston); CR 225-26

(“[p]art of the discussion that took place in Houston” was Velasquez’s agreement “on

behalf of Surtind Import and Export” to import the EDRs into Mexico); CR 74 (Forum

was told it was dealing directly with Surtind Import & Export throughout the

negotiations); Rattner, 293 S.W.3d at 660-61.

      Furthermore, Surtind Import & Export’s brief studiously ignores the evidence

that it took part in “[n]umerous negotiations, communications and meetings” with

Rotenco in Houston. CR 152-53; see also Br. of Appellant at 7. As noted in Rotenco’s


                                         -5-
opening brief, a nonresident defendant “purposefully avail[s] itself of the benefits of

doing business in Texas” by sending “an authorized representative to Texas to solicit

and negotiate business deals.” Navasota Res., Ltd. v. Heep Petroleum, Inc., 212

S.W.3d 463, 470 (Tex. App.–Austin 2006, no pet.). Here, the evidence shows that

Surtind Import & Export did just that. CR 152-53. For this reason alone, the Court

should reverse the trial court’s order granting Surtind Import & Export’s special

appearance. Navasota Res., 212 S.W.3d at 470.

II.   SURTIND IMPORT & EXPORT’S CONTRACT WITH INTERNATIONAL,
      S TANDING A LONE , I S S UFFICIENT TO S UPPORT T EXAS ’ S
      JURISDICTION.

      A.     Surtind Import & Export’s Own Brief Essentially Admits
             That It Did Business In Texas As A Matter Of Law.

      Surtind Import & Export’s brief admits that “International [l]eased [the EDRs]

to Surtind [Import & Export].” Br. of Appellee at 12. Its brief also unambiguously

states that “International Industrial Suppliers [is] a Texas corporation” and “[t]here is

no question that International Industrial Suppliers is the assumed name of Surtind,

Inc., a Texas corporation.” Br. of Appellee at 8. Finally, Surtind Import & Export’s

brief admits that International’s agreement with Surtind Import & Export required it

to ship the EDRs from Houston, Texas, to Laredo, Texas. Br. of Appellee at 9; see

also CR 138-44 (invoices showing International sold equipment to Surtind Import &



                                           -6-
Export and shipped the equipment through a freight forwarder in Laredo).

      As Rotenco pointed out in its opening brief, a nonresident defendant does

business in Texas as a matter of law “if the nonresident . . . contracts by mail or

otherwise with a Texas resident and either party is to perform the contract in whole

or in part in this state.” Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1) (Lexis 2015).

Surtind Import & Export’s brief unequivocally shows that it did just that by entering

into a contract with a Texas resident—International—that required International to

perform its end of the contract in Texas. Br. of Appellee at 8, 9, 12. That contact with

Texas is an integral part of this lawsuit—after all, if the International/Surtind Import

& Export contract did not exist, Rotenco never would have received the EDRs in

question. CR 109; see also CR 150 (Surtind Import & Export, acting through

Velasquez, told Forum that it devised the three-contract setup for the benefit of “a

client of theirs in Mexico”—i.e., Rotenco). Rotenco’s lawsuit therefore “arises out of

or relates to” Surtind Import & Export’s admitted contract with International. See

Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 414 n.8 (1984); Rattner,

293 S.W.3d at 661. As a result, Surtind Import & Export’s contacts with Texas were

sufficient to support Texas’s jurisdiction over it as a matter of law. Compare Tex. Civ.

Prac. & Rem. Code § 17.042(1), with Br. of Appellee at 8, 9, 12; Transportacion

Especial Autorizada, S.A. de C.V. v. Seguros Comercial Am., S.A. de C.V., 978 S.W.2d

                                          -7-
716, 721 (Tex. App.–Austin 1998, no writ).

      Surtind Import & Export insists, however, that the contract between it and

International “expressly states that it was signed in Mexico.” Br. of Appellee at 13.

The only citation Surtind Import & Export provides to support this assertion is a

document that is written in Spanish and for which no English translation appears in

the record. Id. (citing CR 180). But this statement, even if true, is of no consequence

to the question before this Court. This is because the Legislature has unambiguously

directed that a nonresident defendant does business in Texas as a matter of law “if the

nonresident . . . contracts by mail or otherwise with a Texas resident and either party

is to perform the contract in whole or in part in this state.” Tex. Civ. Prac. & Rem.

Code § 17.042(1). Nothing in that plain language identifies the site of the contract’s

execution as a relevant consideration, and Surtind Import & Export has not provided

any authority to the contrary. Compare id., with Br. of Appellee at 13.

      Surtind Import & Export cannot provide any such authority, because the rules

of statutory construction require this Court to presume that “the Legislature included

each word in the statute for a purpose and that words not included were purposefully

omitted.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). Here, the

Legislature’s language is clear—since Surtind Import & Export contracted with a

Texas resident and part of that contract was to be performed in Texas, Surtind Import

                                          -8-
& Export did business in Texas, no matter where the contract was signed. Tex. Civ.

Prac. & Rem. Code § 17.042(1); see also Br. of Appellee at 8, 9, 12. By insisting that

the site of the contract’s execution has any relevance to the jurisdictional question at

issue here, Surtind Import & Export has asked this Court to apply a consideration that

does not exist in the plain language of the statute. Compare Tex. Civ. Prac. & Rem.

Code § 17.042(1), with Br. of Appellee at 13. This Court must reject Surtind Import

& Export’s implicit invitation to “judicially amend a statute by adding words that are

not contained in the language of the statute.” Lippincott, 462 S.W.3d at 508.

      B.     Surtind Import & Export Controlled The Progress Of This
             Business Deal From Beginning To End, And It Did So In
             Texas.

      Surtind Import & Export argues that “[t]he relationship between Surtind [Import

& Export] and International does not establish jurisdiction in this case” because

“[t]here is no pleading of jurisdiction over Surtind [Import & Export] on the basis of

alter ego liability.” Br. of Appellee at 16. But this statement is flat wrong. Rotenco’s

live pleading contains the following paragraph under the heading “Agency/Individual

Liability/Joint Liability/Alter Ego and Piercing of Corporate Veil”:




                                          -9-
CR 40 (highlighting added). This allegation in Rotenco’s live pleading plainly

contends that all of the entities owned by Velasquez are so closely linked that the trial

court should have treated them as one unit for jurisdictional purposes. See id. And

despite Surtind Import & Export’s protestations to the contrary, this allegation finds

ample support in the evidence. See CR 233 (International acts as the “U.S. arm of”

Surtind Import & Export); CR 231 (all of the money International received from

Surtind Import & Export for its “services” in facilitating the shipment of the EDRs

went directly to Forum); CR 198 (Velasquez thanked Forum’s general counsel “on

behalf of [International] and Surtind Imp. [sic] & Export S.A. de C.V.” for “taking the

time to listen to the problem we have with Rotenco”); CR 225-26 (Velasquez

negotiated the deal on behalf of both International and Surtind Import & Export). In

fact, as noted in Rotenco’s opening brief, Surtind Import & Export agreed in its

responses to discovery that Forum was always told it was dealing directly with Surtind

Import & Export “[w]ith regard to the Lease Agreement” with International. CR 74.

                                          -10-
The Fourth Court of Appeals recently held that similar circumstances were sufficient

to impute the activities of a Texas defendant to its nonresident parent for the purpose

of establishing minimum contacts. See PT Intermediate Holding, Inc. v. LMS

Consulting, LLC, No. 04-14-00827-CV, 2015 Tex. App. LEXIS 9669, at *20-21 (Tex.

App.–San Antonio Sept. 16, 2015, no pet. h.).

      But even if the evidence did not support a conclusion that International was

Surtind Import & Export’s alter ego, Surtind Import & Export’s own independent

contacts with Texas support jurisdiction here. Despite Surtind Import & Export’s

strenuous efforts to convince this Court otherwise, this lawsuit does not arise out of

a single, isolated contract between Rotenco and Surtind Import & Export. See, e.g.,

Br. of Appellee at 17. As Rotenco pointed out in its opening brief, the dispute at the

center of this case involves three interconnected contracts—not just one contract

standing alone—and Surtind Import & Export took the lead in negotiating, executing,

and maintaining all three:

      C      Forum was specifically told from the very beginning that it was
             dealing directly with Surtind Import & Export. CR 74.

      C      Velasquez and Pulido voluntarily reached out to Forum, a Texas
             company, to set this business deal in motion. CR 102; CR 150; CR
             219.

      C      Velasquez and Pulido both met with a Forum representative in
             Houston to discuss the proposed contracts. CR 150; CR 225.

                                         -11-
      C      Velasquez and Pulido both met with Rotenco “many times” in
             Houston to discuss the proposed contracts. CR 152-53.

      C      Velasquez and Pulido told Forum’s representative they came up with the
             plan involving the three contracts to benefit “a client of theirs in
             Mexico”—i.e., Rotenco. CR 150; CR 225.

      C      Velasquez negotiated the deal as a whole on behalf of both Surtind
             Import & Export and International. CR 225-26.

      C      Velasquez used his Surtind Import & Export email account and signature
             to communicate with Forum about the “agreements between Forum and
             [International] signed by us and you.” CR 193.

      C      All of the money Surtind Import and Export sent to International for its
             “services” in facilitating the shipment of the EDRs went directly to
             Forum. CR 231.

      C      Surtind Import & Export’s “International Purchases” representative,
             Adriana Velasquez Rendon, used an International email address to send
             Forum a message “on behalf of [International] and Surtind Imp. & Exp.
             S.A. de C.V.” promising to “expedite the return of the equipment and the
             payment of the rent” from Rotenco. CR 197-99 (emphasis added).

      C      When Surtind Import & Export’s relationship with Rotenco cooled, it
             reached out to Forum in Houston for assistance. CR 190-92; CR 195; CR
             197-98.

In other words, even though the record plainly shows that it took special care to ensure

it had its finger in all of the relevant pies, Surtind Import & Export would now like

this Court to believe it was not even in the kitchen. Compare Br. of Appellee, with CR

74 (Forum was specifically told it was dealing with Surtind Import & Export), and CR



                                          -12-
150 (Forum met with both Velasquez and Pulido in Houston and received business

cards from both of them), and CR 152-53 (Rotenco met “many times” with Surtind

Import & Export “at its Houston office”), and CR 197-99 (Velasquez emailed Forum

on behalf of both International and Surtind Import & Export), and CR 225-26

(Velasquez negotiated on behalf of both International and Surtind Import & Export).

This Court should refuse to do so. See, e.g., Retamco Operating, Inc. v. Republic

Drilling Co., 278 S.W.3d 333, 339-40 (Tex. 2009).

      “A court has specific jurisdiction over a defendant if its alleged liability arises

from or is related to an activity conducted within the forum.” Spir Star AG v. Kimich,

310 S.W.3d 868, 873 (Tex. 2010). Rotenco is not attempting to hale Surtind Import

& Export into a Texas court based on the unilateral actions of an unrelated third party

or even—as Surtind Import & Export claims in its brief—based on “the acts of a

subsidiary company.” See Retamco, 278 S.W.3d at 340; Br. of Appellee at 17-18. To

the contrary, Rotenco’s claims against Surtind Import & Export arise out of a business

deal that Surtind Import & Export planned, nurtured, and cultivated in Texas, with

Texas residents, on its own behalf. CR 109; CR 150; CR 152-53; CR 225-26; Rattner,

293 S.W.3d at 660-61. Surtind Import & Export has all but admitted that it

purposefully availed itself of the privilege of conducting activities in Texas to ensure

the success of this deal. Br. of Appellee at 8, 9, 12 (admitting that Surtind Import &

                                          -13-
Export contracted with International, a Texas resident); Tex. Civ. Prac. & Rem. Code

§ 17.042(1). Because even Surtind Import & Export agrees that it did business in

Texas as part of the business deal that led to Rotenco’s lawsuit, the trial court should

have denied its special appearance. Rattner, 293 S.W.3d at 660-61.

III.   VELASQUEZ’S AFFIDAVIT—THE ONLY EVIDENCE SURTIND IMPORT &
       EXPORT PRESENTED IN SUPPORT OF ITS SPECIAL APPEARANCE—WAS
       NOT FACTUALLY OR LEGALLY SUFFICIENT TO NEGATE ROTENCO’S
       ASSERTION OF SPECIFIC JURISDICTION.

       According to Surtind Import & Export, Velasquez’s unsupported, self-serving

affidavit presents more than a scintilla of evidence to support the trial court’s order

granting Surtind Import & Export’s special appearance. Br. of Appellee at 15-16. The

first page of Velasquez’s affidavit identifies him as the president of Surtind Import &

Export and gives a brief overview of the facts of this case. CR 257. There is no

specific discussion of Surtind Import & Export’s contacts with Texas on the first page

of Velasquez’s affidavit. See id.

       On the second page of his affidavit, however, Velasquez told the trial court that:

       C     Surtind Import & Export “does not engage in business in Texas”;

       C     Surtind Import & Export “does not have a place of business,
             offices, bank accounts[,] or employees in Texas”;

       C     Rotenco’s claims “did not arise from any purposeful act or
             transaction [by Surtind Import & Export] in Texas”;



                                          -14-
      C      Surtind Import & Export “has no substantial connection with
             Texas arising from any action or conduct purposefully directed
             toward Texas, [Rotenco’]s claims do not arise from and are not
             related to any activity conducted by [Surtind Import & Export] in
             Texas, and [Surtind Import & Export] has no continuing and
             systematic contacts in Texas.”

CR 258. Only one of those statements—Velasquez’s assertion that Surtind Import &

Export “does not have a place of business, offices, bank accounts[,] or employees in

Texas”—is even arguably a factual contention, and it is completely contrary to the rest

of the evidence. See CR 237 (Surtind Import & Export’s own website explicitly

referred to its “Houston office” and named two employees in that office who used

“@surtindsa.com” email addresses); CR 233 (International acts as the “U.S. arm of”

Surtind Import & Export); CR 235 (Velasquez’s business card lists both a Mexican

address and a Houston address). The Court should therefore reject Surtind Import &

Export’s claim that it “does not have a place of business, offices, bank accounts[,] or

employees in Texas” because it is contrary to the great weight and preponderance of

the evidence. Rattner, 293 S.W.3d at 658.

      But even if this Court accepts this factual contention, it is only sufficient to

challenge an assertion that Surtind Import & Export is subject to general jurisdiction

based on “continuous and systematic contacts” with Texas. See Moncrief Oil Int'l, Inc.

v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). It does not in any way challenge,



                                         -15-
let alone negate, the specific jurisdiction assertions that Rotenco actually raised in its

petition by alleging that “the contract at issue was negotiated, executed, and

performable in Harris County, Texas.”2 CR 38; see also Moncrief, 414 S.W.3d at 150.

As a result, Surtind Import & Export’s insistence that it “does not have a place of

business, offices, bank accounts[,] or employees in Texas” is not enough to support

the trial court’s decision to grant Surtind Import & Export’s special appearance.

Moncrief, 414 S.W.3d at 150; Retamco, 278 S.W.3d at 337.

       The other “facts” in Velasquez’s affidavit are not really facts at all. CR 258.

Instead, Velasquez’s affidavit simply recites the legal standards courts use to

determine whether personal jurisdiction exists, without offering any facts to show how

those standards apply in this case. Compare id., with Burger King Corp. v. Rudzewicz,

471 U.S. 462, 475-76 (1985). His affidavit does not recite facts of which he has

personal knowledge, only legal conclusions intended to defeat Texas’s jurisdiction

over his company. CR 258. Moreover, nothing in Velasquez’s affidavit demonstrates


       2
         Surtind Import & Export’s brief contends that “Rotenco incorrectly premises jurisdiction
based on tort law” because Rotenco’s opening brief cited this Court’s opinion in Hoagland v.
Butcher. Br. of Appellee at 11. This argument is flawed because it ignores that committing a tort in
Texas—as the defendants in Hoagland did—is only one of “a non-exclusive list of activities that
constitute doing business” in this State. See, e.g., Jackson v. Kincaid, 122 S.W.3d 440, 447 (Tex.
App.–Corpus Christi 2003, pet. granted, judgm’t vacated w.r.m.). Rotenco has always maintained
that Surtind Import & Export is subject to Texas’s jurisdiction because the contracts it entered into
in this State and with residents of this State form the basis of this lawsuit. CR 37-44; Br. of
Appellant at 11-17. Surtind Import & Export has not offered this Court any reason to limit its
Hoagland analysis to cases that involve a tort committed in Texas. Br. of Appellee at 11.

                                                -16-
that he is qualified to offer opinion testimony on these legal conclusions. Cf. Southtex

66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 544 (Tex. App.–Houston [14th Dist.] 2007,

pet. denied);3 see also Moncrief, 414 S.W.3d at 150 (existence of personal jurisdiction

is a question of law). As a result, this portion of Velasquez’s affidavit consists solely

of unsupported legal conclusions “and [was] therefore improper proof.” Harbour

Heights Development, Inc. v. Seaback, 596 S.W.2d 296, 297 (Tex. Civ. App.–Houston

[14th Dist.] 1980, no writ). And, as noted above, one of these legal conclusions—that

Surtind Import & Export “does not engage in business in Texas”—contradicts the

facts at issue here as well as the law, even under the arguments in Surtind Import &

Export’s own brief. Compare Tex. Civ. Prac. & Rem. Code § 17.042(1), with Br. of

Appellee at 8, 9, 12. That contradiction should have caused the trial court to deny the

special appearance. See id.

       Unsupported legal conclusions like Velasquez’s claim that Surtind Import &

Export “has no substantial connection with Texas” and that Rotenco’s claims “did not

arise from any purposeful act or transaction” in Texas are no evidence at all and

cannot support the trial court’s order granting Surtind Import & Export’s special

       3
         Southtex is a summary judgment case. Southtex, 238 S.W.3d at 544. Because the rules
regarding special appearance affidavits and summary judgment affidavits are very similar, this Court
has previously relied on summary judgment cases to evaluate the sufficiency of special appearance
affidavits. See Urban v. Barker, No. 14-06-00387-CV, 2007 Tex. App. LEXIS 1633, at *5-6 (Tex.
App.–Houston [14th Dist.] March 6, 2007, no pet.) (citing Brownlee v. Brownlee, 665 S.W.2d 111,
112 (Tex. 1984)); compare Tex. R. Civ. P. 120a(3), with Tex. R. Civ. P. 166a(f).

                                               -17-
appearance. Tex. R. Civ. P. 120a(3) (special appearance affidavits “shall set forth

specific facts as would be admissible in evidence”); cf. Brownlee, 665 S.W.2d at 112.

Despite Surtind Import & Export’s claims to the contrary in this Court, Velasquez’s

affidavit failed to present more than a scintilla of evidence to even challenge

Rotenco’s jurisdictional assertions, much less to negate them. See id. As a result, this

Court should reverse the trial court’s order granting Surtind Import & Export’s special

appearance. Cf. Rattner, 293 S.W.3d at 662.

                             CONCLUSION AND PRAYER

      Surtind Import & Export voluntarily came to Texas to organize a business deal.

CR 150. By its own admission, it contracted with Texas residents to do so. Br. of

Appellee at 8, 9, 12. It met with Rotenco in Texas to negotiate that business deal. CR

152-53. It reached out to a Texas resident for help when its contractual relationship

with Rotenco started to fall apart. CR 190-92; CR 195; CR 197-98. But now that

Rotenco has sued it in Texas, it would like to wash it hands of all of these contacts

with Texas and declare that it never intended to subject itself to Texas’s jurisdiction.

But because the record amply demonstrates that Surtind Import & Export’s own

voluntary, purposeful actions in Texas form the basis for this lawsuit, this Court

should reverse the trial court’s decision to allow it to do so.

      For these reasons and the reasons expressed in Rotenco’s opening brief,

                                          -18-
Appellant Rotenco, S.A. de C.V., prays that this Court will reverse the trial court’s

order granting Appellee Surtind Imp. & Exp., S.A. de C.V.’s special appearance and

remand this cause for a trial on the merits on Appellant’s claims against all of the

Appellees. Appellant also prays for any further relief to which it may be entitled in

law or equity.

                                               Respectfully submitted,

                                                 /s/ Shannon K. Dunn
                                               Beth Watkins
                                               Texas Bar No. 24037675
                                               Shannon K. Dunn
                                               Texas Bar No. 24074162
                                               LAW OFFICE OF BETH WATKINS
                                               926 Chulie Drive
                                               San Antonio, Texas 78216
                                               (210) 225-6666– phone
                                               (210) 225-2300– fax
                                               Attorneys for Appellant
                                               Rotenco, S.A. de C.V.




                                        -19-
                              CERTIFICATE OF SERVICE

       I hereby certify that on September 21, 2015, a true and correct copy of this brief
was forwarded in accordance with rule 9.5 of the Texas Rules of Appellate Procedure
to the following counsel of record:

Yocel Alonso
130 Industrial Boulevard, Suite 110
Post Office Box 45
Sugar Land, Texas 77487
yocelaw@aol.com




                                                        /s/ Shannon K. Dunn
                                                      Shannon K. Dunn
                                                      Attorney for Appellant




                                          -20-
                         CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4(i)(3), undersigned counsel certifies that this

brief complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2).

      1. Exclusive of the portions exempted by Tex. R. App. P. 9.4(i)(1), this brief

contains 4,461 words printed in a proportionally spaced typeface.

      2. This brief is printed in a proportionally spaced, serif typeface using Times

New Roman 14 point font in text and Times New Roman 12 point font in footnotes

produced by Corel WordPerfect X6 software and converted to PDF format by Acrobat

Distiller 10.1.3.


                                               /s/ Shannon K. Dunn
                                               Shannon K. Dunn
                                               COUNSEL FOR APPELLANT
                                               ROTENCO, S.A. DE C.V.




                                        -21-
