                                                                                           ACCEPTED
                                                                                      01-14-00892-CV
                                                                            FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                 3/23/2015 7:04:01 PM
                                                                                  CHRISTOPHER PRINE
                                                                                               CLERK




                             No. 01-14-00892-CV                        FILED IN
                                                                1st COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                           In the Court of Appeals              3/23/2015 7:04:01 PM
                         For the First Judicial District        CHRISTOPHER A. PRINE
                               Houston, Texas                           Clerk




     ADELAIDA SALAZAR BAUTISTA A/K/A ADELAIDA ALVARADO,
   INDIVIDUALLY AND AS NEXT FRIEND OF MARIA JENNIFER AIDE
 A/K/A MARIA JENNIFER ALVARADO, A. A. A. A., I. S. A., M. A., AND E.
 A., MINORS; AND IRINEO ALVARADO AND MARIA ANA MOCTEZUMA

                                                  Appellants,

                                       v.

                     TRINIDAD DRILLING LIMITED,

                                                  Appellee.


                              On Appeal from the
                 270th Judicial District Court of Harris County


            APPELLEE TRINIDAD DRILLING LIMITED’S BRIEF


                                            Sean Higgins
                                            Texas Bar No. 24001220
                                            Wilson, Elser, Moskowitz, Edelman &
                                            Dicker, LLP
                                            909 Fannin Street, Ste. 3300
                                            Houston, Texas 77010
                                            (713) 353-2000
                                            (713) 785-7780 (Fax)
                                            Sean.Higgins@wilsonelser.com
                                            ATTORNEY FOR APPELLEE



213232v.1
                    IDENTITY OF PARTIES AND COUNSEL

1. Appellants:

        a. Adelaida Salazar Bautista a/k/a Adelaida Alvarado, Individually, and as
           next friend of Maria Jennifer Aide a/k/a Maria Jennifer Alvarado, Aurelia
           Alvarado, Alejandra Alvarado, Ivan Salazar Alvarado, Marian Alvarado
           and Eduardo Alvarado, Minors

            Represented by:

              Geoffrey E. Schorr
              geoff@schorrfirm.com
              Texas Bar No. 24029828
              A. Jared Aldinger
              Texas Bar No. 24068456
              jared@schorrfirm.com
              SCHORR LAW FIRM, PC
              328 W. Interstate 30, Suite 2
              Garland, TX 75043
              Tel. (972) 226-8860
              Fax (972) 226-9787

              Andrew P. McCormick
              Texas Bar No. 3457100
              amccormick@mlm-lawfirm.com
              McCORMICK, LANZA & McNEEL, LLP
              4950 Bissonnet Street
              Bellaire,TX 77401
              Tel. (713) 523-0400
              Fax (713) 523-0408

        b. Irineo Alvarado and Maria Ana Moctezuma

            Represented by:

              Justin K. Hall
              Texas Bar No. 90001828
              jkhall@justinkhall.com
              The Law Offices of Justin K. Hall, P.C.

                                          ii

213232v.1
               328 W Interstate 30, Suite 2
               Garland, Texas 75043
               Tel. (972) 226-1999
               Fax (972) 226-2221

               Andrew P. McCormick
               Texas Bar No. 3457100
               amccormick@mlm-lawfirm.com
               McCORMICK, LANZA & McNEEL, LLP
               4950 Bissonnet Street
               Bellaire, TX 77401
               Tel. (713) 523-0400
               Fax (713) 523-0408

2. Appellee:

    Trinidad Drilling, Ltd.
     Represented by:

             Sean Higgins
             Texas Bar No. 24001220
             (Appellate Counsel)
             Michael Beckelman
             Texas Bar No. 24042401
             (Trial Counsel)
             michael.beckelman@wilsonelser.com
             WILSON ELSER MOSKOWITZ
             EDELMAN & DICKER, LLP
             909 Fannin Street, Ste. 3300
             Houston, TX 77010
             Tel. (713) 353-2000
             Fax (713) 785-7780




                                          iii

213232v.1
                                             TABLE OF CONTENTS


TABLE OF AUTHORITIES ..................................................................................................... VI

STATEMENT REGARDING ORAL ARGUMENTERROR! BOOKMARK NOT DEFINED.ERROR! BOO

STATEMENT OF THE CASEERROR! BOOKMARK NOT DEFINED.ERROR! BOOKMARK NOT DEFIN

STATEMENT OF ISSUES PRESENTED ............................................................................... IX

         I.        Whether the trial court correctly determined that Trinidad Ltd., a Canadian
                   corporation with its principal place of business in Canada, is not subject to
                   specific personal jurisdiction, where:................................................................... ix

                   A.         Plaintiffs alleged that Trinidad Ltd. was negligent but did not allege the
                              existence of Texas contacts giving rise to their claim against
                              Trinidad Ltd; .............................................................................................. ix

                   B.         Trinidad Ltd. controverted Plaintiff’s the any jurisdictional allegations
                              through affidavit testimony; and................................................................ ix

                   C.         Plaintiffs did not present evidence of relevant jurisdictional contacts
                              between Trinidad Ltd. and Texas............................................................... ix

         II.       Whether the trial court correctly determined that Trinidad Ltd, a Canadian
                   corporation headquartered in Canada, is not subject to general personal
                   jurisdiction in Texas where .................................................................................. ix

                   A.         Trinidad Ltd. presented affidavit testimony controverting the existence of
                              general personal jurisdiction;..................................................................... ix

                   B.         Plaintiffs did not allege –and specifically disavowed- any claim that the
                              Court should fuse Trinidad Ltd. with its indirect subsidiary, Trinidad
                              Drilling Limited Partnership (“Trinidad LP”) for the purpose of
                              determining jurisdiction; and .......................................................................x

                   C.         Uncontroverted evidence shows that Trinidad LP is in fact a separate
                              entity from Trinidad Ltd. .............................................................................x

STATEMENT OF FACTS............................................................................................................1

         A.        The lawsuit. .............................................................................................................1

         B.        Trinidad Ltd. is a Canadian corporation headquartered in Canada that does not
                   conduct business in Texas. .....................................................................................1

                                                                   iv

213232v.1
          C.         Trinidad Ltd, and Trinidad LP are separate entities. ............................................2

          D.         Plaintiffs’ allegations against Trinidad Ltd...........................................................3

          E.         Trinidad Ltd’s special appearance. ........................................................................4

SUMMARY OF ARGUMENT.....................................................................................................5

STANDARD OF REVIEW ...........................................................................................................6

ARGUMENT..................................................................................................................................8

          I.         Trinidad Ltd. is not subject to specific personal jurisdiction. ...............................8

                     A.         Plaintiffs’ allegations do not establish specific personal jurisdiction..........9

                                1.         Plaintiffs’ have the burden of proving parental control. ................. 9

                                2.         Plaintiffs only allege negligence, and not Texas contacts. ........... 11

                     B.         Trinidad Ltd. controverted Plaintiffs’ allegations......................................14

                     C.         The evidence does not support the existence of specific personal
                                jurisdiction. ................................................................................................15

                                1.         Trinidad Ltd. has an employee with the job title, “top drive rig
                                           superintendent.” ............................................................................ 15

                                2.         The “remedial action” email. ........................................................ 16

                                3.         Rodney Forman............................................................................. 18

                                4.         Trips to Texas & knowledge of Trinidad LP. ............................... 18

          II.        Trinidad Ltd. is not subject to general personal jurisdiction. .............................19

REQUEST FOR RELIEF ...........................................................................................................21




                                                                      v

213232v.1
                                            TABLE OF AUTHORITIES



                                                                CASE

11327 Reeder Road, Inc., 2013 WL 4478202 *5 (Tex. App. –Dal. 2013)..................................... 9

American Type Culture Collection, Inc. v. Coleman,
  83 S.W.3d 801 (Tex. 2002)........................................................................................................ 9

BMC Software Belgium, N.V. v. Marchand,
  83 S.W.3d 789 (Tex. 2002)............................................................................... 6, 10, 11, 18, 19

Kelly v. Gen’l Interior Construction, Inc.,
   301 S.W.3d 653 (Tex. 2010 ....................................................................................................... 9

Knight Corp. v. Knight,
  367 S.W.3d 715 (Tex. App. –Hou [14th Dist.] 2012) ............................................................. 19

Michiana Easy Livin’ Country, Inc. v. Holten,
  168 S.W.3d 777 (Tex. 2005).............................................................................. 8, 11, 12, 13, 18

Moncrief Oil Int’. Inc. v. OSO Gazprom,
  414 S.W.3d 142 (Tex. 2013)................................................................................................ 8, 16

PHC-Minden, LP v. Kimberly Clark Corp.,
  235 S.W.3d 163 (Tex. 2007).................................................................................................... 18



Tex. Civ. Prac. & Rem. Code §51.014(a)(7). ............................................................................... vii

Texas Labor Code § 408.001. ......................................................................................................... 1


                                              RULES AND REGULATIONS
Tex. R. Civ. P. 120a.3..................................................................................................................... 7




                                                                     vi

213232v.1
              STATEMENT REGARDING ORAL ARGUMENT


The facts and the law are clear. Oral argument will not assist the Court in deciding

this case.




                                         vii

213232v.1
                                STATEMENT OF THE CASE

        This is an interlocutory appeal of an order granting a special appearance

pursuant to Tex. Civ. Prac. & Rem. Code §51.014(a)(7).


        The Appellants, Adelaida Salazar Batista et al. (“Plaintiffs”) sued Appellee

Trinidad Drilling Ltd. (“Trinidad Ltd.”) and several other defendants for the

wrongful death of Nabor Alvarado in the 170th Judicial District Court of Harris

County Texas, the Hon. Brent Gamble presiding.

        Trinidad Ltd., a Canadian corporation headquartered in Canada, filed a

special appearance which the trial court granted on October 13, 2014 . CR 128.

Plaintiffs appeal that order.




                                          viii

213232v.1
                      STATEMENT OF ISSUES PRESENTED
I.          Whether the trial court correctly determined that Trinidad Ltd., a

            Canadian corporation with its principal place of business in Canada, is

            not subject to specific personal jurisdiction, where:


            A.    Plaintiffs alleged that Trinidad Ltd. was negligent but did not

            allege the existence of Texas contacts giving rise to their claim against

            Trinidad Ltd.;

            B.    Trinidad Ltd. controverted Plaintiff’s jurisdictional allegations

            through affidavit testimony; and


            C.    Plaintiffs did not present evidence of relevant jurisdictional

            contacts between Trinidad Ltd. and Texas.

II.         Whether the trial court correctly determined that Trinidad Ltd., a

            Canadian corporation headquartered in Canada, is not subject to

            general personal jurisdiction in Texas where:


            A.    Trinidad Ltd. presented controverted the existence of general

            personal jurisdiction through affidavit testimony.




                                         ix

213232v.1
            B.    Plaintiffs did not allege –and specifically disavow - any claim

            that the Court should fuse Trinidad Ltd. with its indirect subsidiary,

            Trinidad Drilling Limited Partnership (“Trinidad LP”) for the purpose

            of determining jurisdiction; and


            C.    Uncontroverted evidence shows that Trinidad LP is in fact a

            separate entity from Trinidad Ltd.




                                        x

213232v.1
                                  STATEMENT OF FACTS

         A.     The lawsuit.


         Nabor Alvarado (“Alvarado”) died in an accident while working on a gas rig

owned by his employer, Trinidad LP.        CR 35-38.     At the time of the accident,

Alvarado was in the course and scope of his employment with Trinidad LP.

Trinidad LP is a subscriber under the Texas Worker’s Compensation Act. CR 37.


         Plaintiffs sued Trinidad LP for exemplary damages based on gross

negligence pursuant to Texas Labor Code § 408.001. CR 36-37. Plaintiffs also

sued the manufacturers of the rig and rig equipment for product liability and

negligence. CR 36-39. Through their Second Amended Petition, Plaintiffs sued

Trinidad Ltd. for negligence. SCR 151-68.1


         B.     Trinidad Ltd. is a Canadian corporation headquartered in
                Canada that does not conduct business in Texas.
         Trinidad Ltd. is a Canadian corporation that is organized in Alberta, Canada.

Lane Aff. 2, CR 28. Trinidad Ltd. is not a direct owner of Alvarado’s employer,




1
    Supplemental Clerk’s Record


                                           1

213232v.1
Trinidad LP or its general or limited partners.2 CR 28-29 & 31. Trinidad Ltd. and

Trinidad LP are separated by a chain of four entities. Id.


        Trinidad Ltd. does not conduct business in Texas. SCR 353. It does not

own property in Texas, does not have its own bank accounts in Texas, and does not

have a place of business in Texas. CR 29.


        Trinidad Ltd. has established and invested in separate entities that conduct

business in the United States and South America.             SCR 353-54. Trinidad LP is

one of these entities. Id.


        C.        Trinidad Ltd., and Trinidad LP are separate entities.


        Trinidad LP and Trinidad Ltd. are separate and distinct entitites. CR29-30,

SCR 353-54. Each has its own directors, management and employees. Each entity

pays its own employees, taxes and expenses. Id. Trinidad Ltd. and Trinidad LP do

not commingle their funds. SCR 353-54. Transactions between Trinidad Ltd. and

Trinidad LP are documented. SCR 354.


        Trinidad LP has its own assets. One such asset is the rig involved in the

accident. SCR 356. Trinidad LP purchased this rig directly from the manufacturer


2
 Trinidad Drilling LLC, a Delaware Limited Liability Company, is the general partner of
Trinidad LP. Trinidad Drilling USA Ltd., a Delaware corporation, is the limited partner.


                                               2

213232v.1
in order to perform a drilling contract between it and Chesapeake Operating Co.

Id. This drilling contract is in evidence. Id. SCR 444-57. Under the contract,

Chesapeake agreed to pay Trinidad LP for its services and reimburse it for its

expenses in performing the contract, including the cost of transporting the rig to

Texas. Id. Trinidad LP financed its purchase of the rig through an inter-company

loan from Trinidad Ltd. CR 356.


        D.          Plaintiffs’ allegations against Trinidad Ltd.


            Plaintiffs joined Trinidad Drilling Ltd in their Second Amended Petition.

They alleged only generally that Trinidad Ltd. conducts business in Texas. SCR

153.


        In their third amended petition -the live petition at the time of judgment-

Plaintiffs alleged that Trinidad Ltd. was Trinidad LP’s parent and “exercised

ownership, control and took responsibility for overseeing safety policies and

procedures for the crews and on the drilling rigs” of Trinidad LP. 3rd Am. Pet.

¶4.07, CR 38. They alleged that Trinidad Ltd. knew of five incidents similar to the

one involving Alvarado. Id. at ¶4.08. And they alleged that Trinidad Ltd. was

“negligent in failing to properly oversee, instruct, train and/or supervise the safe

operation of rigging up the drilling rig.” Id. at ¶4.09.



                                            3

213232v.1
        E.   Trinidad Ltd.’s special appearance.


        Trinidad Ltd. filed a special appearance and negated the existence of

jurisdiction through two affidavits by Gavin Lane, its vice president for finance.

CR 14-31. SCR 353-58. Lane testified that Trinidad Ltd. lacks business contacts

with Texas: that it is not registered or authorized to conduct business in Texas,

does not have property or employees in Texas, does not maintain an office in

Texas, and does not directly market to the state. Id. Lane testified trips to Texas

by Trinidad Ltd. employees were made for the purpose of overseeing Trinidad

Ltd.’s startup and investment in Trinidad LP. Id. He also testified that Trinidad

Ltd. and Trinidad LP are separate and distinct entities.


        The court granted Trinidad Ltd.’s special appearance through an order

signed on October 13, 2014. CR128-29.




                                          4

213232v.1
                               SUMMARY OF ARGUMENT


        The trial court correctly granted Trinidad Ltd.’s special appearance.


        Plaintiffs argue that the trial court erred because they established limited

personal jurisdiction by alleging that Trinidad Ltd. negligently controlled and

oversaw Trinidad LP’s drilling operations. This is a thinly disguised attempt at

jurisdictional veil piercing. Plaintiffs did not present any evidence that Trinidad

LP is Trinidad Ltd.’s alter ego.


        Nor did Plaintiffs allege (or prove) the existence of purposeful contacts

between Trinidad Ltd. and Texas that give rise to their claims. They allege only

that Trinidad Ltd. was negligent, and that this negligence caused an injury in

Texas.      These allegations, without more, do not support specific personal

jurisdiction.


        With Plaintiffs failing to make allegations that establish specific jurisdiction,

it was not Trinidad Ltd.’s burden to present evidence controverting the existence of

jurisdiction. Trinidad Ltd., nevertheless, did so. And Plaintiffs failed to present

evidence supporting the existence of specific personal jurisdiction.



                                            5

213232v.1
        Trinidad Ltd. is not subject to general personal jurisdiction in Texas.

Trinidad Ltd. negated the existence of general jurisdiction.         And there is no

evidence that Trinidad Ltd. has a continuous and systematic presence in Texas.


        For these reasons, this Court should affirm the trial court’s judgment.


                             STANDARD OF REVIEW


        The applicable standard for reviewing the grant or denial of a special

appearance is well established. The appellate court conducts de novo review of the

trial court’s legal conclusions, and reviews findings of fact for legal and factual

sufficiency.     BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794

(Tex. 2002).


        Plaintiffs urge the Court to depart from this standard by reviewing the trial

court’s implied factual findings de novo, drawing all inferences in favor of

jurisdiction. They argue that this standard should apply whenever the trial court

decides a special appearance without live testimony. This is both irrelevant and

incorrect.


       First, it is irrelevant because it makes no difference in the outcome of this

case. None of the evidence cited by Plaintiffs supports an inference in favor of

jurisdiction.

                                           6

213232v.1
       Second, it is incorrect. Reviewing findings of fact de novo would strip the

trial court of its fact finding function in determining personal jurisdiction. Rule

120a contemplates that trial courts will determine special appearances primarily on

the basis of a paper record. The rule states: “the court shall determine the special

appearance on the basis of the pleadings, any stipulations . . . such affidavits and

attachments as may be filed by the parties, the results of discovery processes and

any oral testimony.” Tex. R. Civ. P. 120a.3.


       Most special appearances are decided on the basis of a paper record. This is

because a defendant who is challenging the court’s authority to require his

appearance is unlikely to travel to Texas to testify in person at the special

appearance hearing.        Hence, adopting Plaintiffs’ standard would mean that

appellate courts must re-determine the facts every time a special appearance is

appealed.


       When the trial court decides a special appearance, it makes the threshold

determination of whether the defendant is subject to the court’s jurisdiction. This

is not a summary judgment on the merits. The standard of review urged by

Plaintiffs is incorrect.




                                         7

213232v.1
                                        ARGUMENT


I.                 Trinidad Ltd. is not subject to specific personal jurisdiction.


        Purposeful availment is the “touch stone” for personal jurisdiction. This

means that personal jurisdiction only arises when there is “some act by which the

defendant purposefully avails itself of the privilege of conducting activities within

the forum state.” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,

778 (Tex. 2005) [hereinafter, Michiana].


        Stated differently, the defendant must seek “some benefit, advantage or

profit by availing itself of the jurisdiction.” Id. A defendant’s mere knowledge

that the effects of its conduct -“the brunt of the injury-” might be felt in Texas is

not purposeful availment. Id. at 788.


        Where the question is specific personal jurisdiction, purposeful contacts

alone are not enough.       The plaintiff’s claims must arise from the defendant’s

purposeful contacts.     Moncrief Oil Int’. Inc. v. OSO Gazprom, 414 S.W.3d 142,

156 (Tex. 2013).


        Purposeful availment is a form of consent to suit within the state. Hence, a

nonresident who “purposefully structure[s] its transactions to avoid the benefits

and protections of the forum’s laws”           may avoid submitting to jurisdiction.

                                           8

213232v.1
American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 808 (Tex.

2002). One way for a party to accomplish this objective is to “use separate . . .

entities to conduct business in Texas.” Guarino v. 11327 Reeder Road, Inc., 2013

WL 4478202 *5 (Tex. App. –Dal. 2013, no pet.) (Mem. Op.)


       Plaintiffs bore the initial burden of pleading allegations that, taken as true,

establish the existence of specific personal jurisdiction. Plaintiffs did not meet

their initial burden. Kelly v. Gen’l Interior Construction, Inc. 301 S.W.3d 653, 658

(Tex. 2010)


       Nevertheless, Trinidad Ltd. did controvert the existence of personal

jurisdiction.        And Plaintiffs evidence does not support specific personal

jurisdiction.


        The trial court’s judgment, therefore, should be affirmed.


        A.      Plaintiffs allegations    do    not   establish      specific   personal
                jurisdiction.

                1.     Plaintiffs’ have the burden of proving parental control.


        Plaintiffs allege that Trinidad Ltd. controlled Trinidad LP’s activities and did

this in a negligent manner. They argue that these allegations alone establish

specific personal jurisdiction.



                                            9

213232v.1
        Plaintiffs deny that they are attempting to establish jurisdiction through veil

piercing. Yet this is precisely what they are attempting to accomplish. Plaintiffs’

allegations do not bring Trinidad Ltd. within the Court’s jurisdiction.


        Texas law presumes that separate entities are indeed separate. Hence, a

party who attempts to establish jurisdiction by challenging the distinct existence of

a business entity must go beyond pleading and present evidence. BMC Software

Belgium, BV v. Marchand, 83 S.W.3d 789, 798 (Tex. 2002). [herinafter BMC

Software]. The plaintiff has the burden of showing that “the parent controls the

internal business operations and affairs of the subsidiary.” Id. at 799.


        In an effort to avoid this presumption, Plaintiffs characterize their claim as

one for direct negligence by a corporate parent. This is a distinction without a

difference.    Plaintiffs are still challenging Trinidad LP’s independence from

Trinidad Ltd.      The presumption of independence should apply whether the

plaintiffs expressly challenge all aspects of independence or just one.


        Accepting Plaintiffs’ gambit would allow parties to routinely circumvent the

presumption of corporate independence.          A plaintiff would be able to hail a

corporate parent into Texas simply by alleging that the parent exercised improper

corporate control in a negligent manner.



                                           10

213232v.1
        Furthermore the purpose of jurisdictional veil piercing is to prevent fraud or

injustice. BMC Software, 83 S.W.3d at 799. There is no fraud or injustice in this

case.


        Trinidad Ltd. exercised its right to structure its transactions to avoid

purposefully availing itself of the protections of Texas law. It accomplished this

objective by establishing a separate entity, Trinidad LP, that conducts business in

Texas. Trinidad LP employed Alvarado. Trinidad LP is answerable to Plaintiffs

in Texas. Indeed, according to Plaintiffs’ petition, Trinidad LP supplied Alvarado

with workers’ compensation insurance, thereby guaranteeing Plaintiffs a remedy.

CR 36-37.


              2. Plaintiffs do not allege relevant Texas contacts.


        Despite this, Plaintiffs would have the court impose jurisdiction based solely

on their allegation that Trinidad Ltd. committed negligence that caused an injury in

Texas. But specific personal jurisdiction does not arise from an allegation that the

effects of a defendant’s negligence are felt in Texas. Specific personal jurisdiction

arises from actual contacts between the defendant and Texas. Michiana, 168

S.W.3d at 791-92.


        Plaintiffs do not allege the existence of a single contact between Trinidad

Ltd. and the state of Texas that gives rise to their claims. They argue instead that
                                          11

213232v.1
they have supplied the required contacts by alleging that Trinidad Ltd.’s

negligence caused Alvarado’s death. Michiana demonstrates that Plaintiffs are

incorrect.


        In Michiana, a Texas plaintiff attempted to establish personal jurisdiction

over an Indiana RV dealer by alleging that the dealer made misrepresentations over

the telephone. Michiana, 168 S.W.3d at 784. The Supreme Court categorically

rejected the attempt.


        The Court held that personal jurisdiction only arises from the defendant’s

contacts with the state, and that state contacts are different from the commission of

a tort. The Texas contacts of a nonresident defendant are matters “of physical

fact,” the Court explained, whereas the commission of a tort turns on “what the

parties thought, said or intended.” Id. at 791.


        The Court further explained that a rule permitting personal jurisdiction to

arise solely from a tort causes an injury in Texas incorrectly ties personal

jurisdiction to the merits of the plaintiff’s claim.     Id. at 792. This approach

requires a nonresident who challenges jurisdiction to prove that he is not liable to

plaintiff. Id. This is not the correct focus of the jurisdictional inquiry, which turns

on the defendant’s contacts with the state:



                                          12

213232v.1
        Michiana . . . rightly focused its jurisdictional affidavits on a lack of
        contacts rather than lack of culpability. Jurisdiction cannot turn on
        whether a defendant denies wrongdoing –as virtually all will. Nor can
        it turn on whether a plaintiff merely alleges wrongdoing –again as
        virtually all will. If committing a tort establishes jurisdiction, our
        colleagues will have to decide who is correct –and then the Texas
        jurisdictional rule will be: guilty residents can be sued here, innocent
        ones cannot.

Id. at 791.


        Plaintiffs advance the very argument that the Supreme Court rejected in

Michiana.     They have not alleged the existence of a single contact between

Trinidad Ltd. and Texas that give rises to their claim.3 They argue instead that

their allegation that Trinidad Ltd. was negligent and supplies the state contacts.


        Indeed, Plaintiff argue that the trial court was required to find jurisdiction

because they alleged that Trinidad Ltd. was negligent and “there can be no dispute

as to the merits of Plaintiffs’ claims at this stage of the proceeding.” Pls. Brief at

15. This is the precise opposite of what Michiana requires. In Michiana, the Court

placed the merits off limits because jurisdiction must arise from the defendant’s

Texas contacts, not from an alleged tort that causes an injury in Texas.

        3
          Plaintiffs made only the barest of allegations concerning Trinidad Ltd.’s presence in
Texas, pleading only that Trinidad Ltd. “is a foreign corporation who has engaged in business in
the State of Texas.” 3rd Am. Pet. ¶1.09, CR 34. Trinidad Ltd. controverted these allegations
through Gavin Lane’s affidavits, filed in support of its Special Appearance. CR 14-31; SCR
3523-58.




                                               13

213232v.1
        Plaintiffs’ allegations do not support the existence of specific personal

jurisdiction over Trinidad Ltd. The trial court’s judgment should be affirmed.


        B.    Trinidad Ltd. controverted Plaintiffs’ allegations.


        Plaintiffs’ allegations did not establish the existence of personal jurisdiction,

therefore Trinidad Ltd. was not required to controvert those allegations. But if the

Court disagrees, Trinidad Ltd. controverted any jurisdictional allegations by

presenting two affidavits from its vice president of finance, Gavin Lane. CR 14-

31, SCR 353-58.


        Lane testified that Trinidad Ltd. and Trinidad LP are separate and distinct

entities and are operated as such. CR 28-30. The two entities do not share office

space, do not commingle funds or share bank accounts, file separate tax returns and

maintain separate accounting records. CR 29.


        Lane explained that Trinidad Ltd. and Trinidad LP each have separate

boards, management and policies. SCR 354. He testified that Trinidad LP owns

the rig in question, having purchased it to perform a contract between it and

Chesapeake Oil. SCR 354.




                                           14

213232v.1
        Lane testified that Trinidad LP has its own employees, and pays those

employees. SCR 357. He testified that Trinidad LP has its own policies. SCR

357.


        To the extent it was required to do so, Trinidad Ltd. met its burden of

controverting the existence of personal jurisdiction.


        C.     The evidence does not support the existence of specific personal
               jurisdiction.
        Because Plaintiffs failed to meet their initial pleading burden, the Court

should not need to reach Plaintiffs’ argument that the “great weight” of the

evidence supports jurisdiction. In actuality, Plaintiffs did not present any evidence

of jurisdiction. Each piece of evidence that Plaintiffs cite is discussed in turn.


               1.    Trinidad Ltd. has an employee with the job title, “top drive
                     rig superintendent.”
        Plaintiffs cite two emails that identify an employee with the job title of “top

drive rig superintendent.” Pls. Brief at 18-19. They then leap to the conclusion

that “Trinidad Ltd. was involved in the oversight of Trinidad LP’s drilling

operations” and that Trinidad Ltd. had prior knowledge of similar accidents. Pls.

Brief at 19.


        The existence of a “top drive rig superintendent” is not evidence of oversight

and knowledge.         Plaintiffs present no evidence of this individual’s job
                                           15

213232v.1
responsibilities, or that this individual controlled Trinidad LP’s activities. But

even if this was evidence of oversight and knowledge, Plaintiffs do not explain

how this would establish jurisdiction. See PHC Minden, L.P. v. Kimberly-Clark

Corp., 235 S.W.3d 163, 175-76.


        Nor is the email referencing incidents of derrick strikes evidence of contacts

between Trinidad Ltd. and Texas. Even if evidence of prior knowledge were

relevant, the email is not such evidence. The email does not state when Trinidad

Ltd. acquired knowledge of the strikes, nor does it establish similarity to Plaintiffs’

accident.


              2.     The “remedial action” email.


        Plaintiffs next cite Rodney Forman’s July 21, 2010 email concerning

remedial action plans. CR 79. They claim that this email somehow shows that

Trinidad Ltd. controlled “operational details of drilling operations and crews.”

This is not proof of such control. It is simply a report of Forman’s investigation

into the incident. Forman is Trinidad LP’s HSE manager, and he conducted the

investigation in that capacity. SCR 357-58. He then travelled to Canada and

shared his findings with Trinidad Ltd. Id.


        Nor is the email evidence of contacts between Trinidad Ltd. and Texas. The

email post dates the accident. By definition it does not evidence Texas contacts
                                          16

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that give rise to Plaintiffs’ claims. Moncrief Oil Int’l, Inc. v. OSO Gazprom, 414

S.W.3d 142, 156 (Tex. 2013).




                                       17

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              3.    Rodney Forman.


        Plaintiffs argue that Rodney Forman somehow subjects Trinidad Ltd. to

specific personal jurisdiction. This is incorrect.


        Forman was employed by Trinidad LP, not by Trinidad Ltd.          SCR 357.

And even if Trinidad Ltd. employed Forman, this still would not support specific

personal jurisdiction. There is no allegation or evidence that Forman’s acts or

negligence gives rise to Plaintiffs’ claims.


              4.    Trips to Texas & knowledge of Trinidad LP.


        Finally, Plaintiffs cite trips to Texas by Trinidad Ltd. employees, and they

argue that Trinidad Ltd. knew about and supported Trinidad LP’s drilling

operations.    This is an interesting argument given that Plaintiffs disavow an

attempt to establish jurisdiction through veil piercing. In any event, this is not

evidence of specific personal jurisdiction.


        First, Plaintiffs’ claims did not arise from trips to Texas by Trinidad Ltd.

employees. There is no evidence or allegation that any trip touched on Alvarado or

the accident. Rather, the undisputed evidence shows that the trips were made for

the purpose of starting up and investing in Trinidad LP. SCR 357



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        Nor does Trinidad Ltd.’s purported “knowledge and support” of Trinidad

LP’s activities support limited personal jurisdiction. Personal jurisdiction requires

purposeful availment. Purposeful availment does not arise from mere knowledge.

Michiana, 168 S.W.3d at 784-85.


        Trinidad Ltd. is not subject to specific personal jurisdiction.    The trial

court’s judgment should be affirmed.


II.     Trinidad Ltd. is not subject to general personal jurisdiction.


        Nor is there general personal jurisdiction.


        General jurisdiction exists only if the defendant’s contacts with Texas are

“continuous and systematic so that the forum may exercise personal jurisdiction

even if the lawsuit does not arise from or relate to activities conducted within the

forum state.” BMC Software 83 S.W.3d at 796. For general jurisdiction to arise,

the “defendant must be engaged in longstanding business in the forum state, such

as marketing or shipping products, or performing services or maintaining one or

more offices there.” PHC-Minden, LP v. Kimberly Clark Corp., 235 S.W.3d 163,

168 (Tex. 2007). Activities that are “less extensive” than this do not give rise to

general personal jurisdiction. Id.




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        Stated differently: “For a corporation, the paradigm forum for the exercise

of general jurisdiction is the place in which the corporation is fairly regarded as at

home.” Knight Corp. v. Knight, 367 S.W.3d 715, 727 (Tex. App. –Hou [14th Dist.]

2012, no pet.). Trinidad Ltd. is not at home in Texas.


        Plaintiffs suggest that Trinidad Ltd. is subject to general jurisdiction in

Texas because it exercised control over Trinidad LP. Pls. Br. At 31-32. Plaintiffs,

in other words, seek to impute Trinidad LP’s jurisdictional contacts to Trinidad

Ltd. Plaintiffs did not plead jurisdictional veil piercing. Nor have they proved that

Trinidad Ltd., and Trinidad LP “cease to be separate so that the corporate fiction

should be disregarded to prevent fraud or injustice.” BMC Software, 83 S.W.3d at

799.


        If it needs to be repeated, the evidence shows that the entities are separate.

The two entities have separate books and records, file separate tax returns, have

separate boards of directors, officers and employees, and have their own assets.


        Nor is there fraud or injustice. Alvarado was employed by Trinidad LP.

Trinidad LP supplied him with worker’s compensation insurance. And Trinidad

LP is answerable to Plaintiffs in Texas.


        None of the other evidence cited by Plaintiffs supports general personal

jurisdiction. Rodney Foreman is not employed by Trinidad Ltd.; he is employed
                                           20

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by Trinidad LP. SCR 357. And Trinidad Ltd. does not have a bank account in

Texas. The Texas Wells Fargo account that Plaintiffs cite is owned by Trinidad

LP. CR 356.


        The evidence does not support existence of general jurisdiction. The trial

court’s judgment should be affirmed.


                                REQUEST FOR RELIEF


        For the foregoing reasons, Trinidad Drilling Ltd. requests the Court to affirm

the trial court’s judgment and grant it all other relief to which it may be entitled.


                                        /s/ Sean Higgins
                                        Sean Higgins
                                        Texas Bar No. 24001220
                                        909 Fannin Street, Suite 3300
                                        Houston, Texas 77010
                                        Telephone (713) 353-2000
                                        Facsimile (713) 785-7780

                                        ATTORNEY FOR APPELLEE
                                        TRINIDAD DRILLING, LTD.




                       CERTIFICATE OF COMPLIANCE
       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
6,766 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
                                           21

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                                      /s/ Sean Higgins
                                      Sean Higgins




                         CERTIFICATE OF SERVICE

       The undersigned certifies that the foregoing document has been served via
certified mail, return receipt requested on all counsel of record in compliance with
the Texas Rules of Appellate Procedure on this 23rd day of March, 2015.


Geoffrey E. Shorr
geoff@schorrfirm.com
Texas Bar No. 24029828
A. Jared Aldinger
Texas Bar No. 24068456
jared@schorrfirm.com
SCHORR LAW FIRM, PC
328 W. Interstate 30, Suite 2
Garland, TX 75043
Tel. (972) 226-8860
Fax (972) 226-9787

Andrew P. McCormick
Texas Bar No. 3457100
amccormick@mlm-lawfirm.com
McCORMICK, LANZA & McNEEL, LLP
4950 Bissonnet Street
Bellaire, TX 77401
Tel. (713) 523-0400
Fax (713) 523-0408

Justin K. Hall
Texas Bar No. 90001828
jkhall@justinkhall.com
The Law Offices of Justin K. Hall, P.C.
                                          22

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328 W. Interstate 30, Suite 2
Garland, TX 75043
Tel. (972) 226-1999
Fax (972) 226-2221




                                /s/ Sean Higgins
                                Sean Higgins




                                  23

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