                      NUMBER 13-17-00512-CV

                        COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG


AURELIANO GARCIA D/B/A
A. GARCIA PRODUCE & TRUCKING,
LLC,                                                                Appellant,

                                    v.

HUMBERTO FLORES,                                                     Appellee.


           On appeal from the County Court at Law No. 5
                    of Hidalgo County, Texas.


                     MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Hinojosa and Tijerina
             Memorandum Opinion by Justice Tijerina

    Appellant Aureliano Garcia d/b/a A. Garcia Produce & Trucking, LLC (“Garcia”)
challenges the trial court’s denial of his special appearance. 1 By two issues, Garcia

contends that appellee Humberto Flores failed to (1) tender jurisdictional evidence to

support that the trial court has jurisdiction over him personally and (2) show that Garcia

waived his special appearance. We affirm.

                                        I.      BACKGROUND

        According to Flores’s petition, he entered a contract with Garcia to purchase a

2001 Kenworth T800 tractor rig and refrigerated trailer for $65,000. Flores alleged that

Garcia “promised” to work with Flores by providing produce for Flores to haul from

Garcia’s Hidalgo County Business to Georgia, and Flores would pay for the rig and trailer

by making such hauls. Flores claimed that Garcia “ceased, for no good reason, to give

[Flores] loads to haul.” Flores stated in his petition that he then asked Garcia to give him

a nonnegotiable title to the rig, and Garcia refused.                According to Flores, “Garcia

immediately began efforts to seize and take the subject rig from [him]” even though Flores

had made “substantial payments” to Garcia. Flores alleged that his debt to Garcia was

only $10,000. Subsequently, Corzam, L.L.C., a wrecker and towing company (the “towing

company”), “seized the subject rig from” Flores in Hidalgo County, Texas.

        Flores sued Garcia for breach of contract, breach of duty of good faith and fair

dealing, fraud, and intentional infliction of emotional distress. Flores also sued Garcia

and the towing company for theft. Garcia filed a special appearance and motion to

dismiss for lack of personal jurisdiction denying that he committed any acts in Texas that

would bring him under the Texas long-arm statute and claiming that he resides in Georgia.


        1 Garcia is a Georgia resident with his principal place of business in Georgia. However, according
to the pleadings, Garcia also owns a cold storage business in Hidalgo County, Texas, which is operated by
A. Garcia Produce & Trucking, LLC (the “Hidalgo County Business”).


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Garcia attached a memorandum in support of his special appearance setting out his

arguments regarding his lack of minimum contacts with Texas. Garcia then filed an

answer (1) generally denying Flores’s allegations, (2) asserting affirmative defenses, and

(3) countersuing Flores for breach of contract.      Flores filed a general denial and a

response to Garcia’s motion to dismiss for lack of personal jurisdiction.

       After holding a hearing on Garcia’s special appearance and motion to dismiss, the

trial court denied both. This appeal followed.

                   II.     APPLICABLE LAW AND STANDARD OF REVIEW

       Texas courts have personal jurisdiction over a nonresident defendant only if it is

authorized by the Texas long-arm statute, see TEX. CIV. PRAC. & REM. CODE ANN.

§ 17.042, which allows Texas courts to exercise personal jurisdiction over nonresident

defendants who are doing business in Texas. BMC Software Belg., N.V. v. Marchand,

83 S.W.3d 789, 795 (Tex. 2002). The Texas long-arm statute sets out several activities

that constitute “doing business” in Texas; however, the list is not exclusive, and the long

arm statute’s “broad language extends Texas courts’ personal jurisdiction ‘as far as the

federal constitutional requirements of due process will permit.’” Id. (quoting U-Anchor

Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)). Therefore, “the requirements of

the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports

with federal due process limitations.” CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996).

       Under the Due Process Clause of the Fourteenth Amendment of the United States

Constitution, a Texas court has personal jurisdiction over a nonresident defendant when

(1) the nonresident defendant has established minimum contacts with the forum state,

and (2) the exercise of jurisdiction does not offend “traditional notions of fair play and



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substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); BMC

Software Belg., 83 S.W.3d at 795; see U.S. CONST. amend. XIV, § 1. “The exercise of

personal jurisdiction is proper when the contacts proximately result from actions of the

nonresident defendant which create a substantial connection with the forum state.”

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223,

226 (Tex. 1991).

      The plaintiff bears the initial burden of pleading “sufficient allegations to bring a

nonresident defendant within the provisions of the [Texas] long-arm statute.”        BMC

Software Belg., 83 S.W.3d at 793. Once this burden is satisfied, to challenge personal

jurisdiction, the defendant must file a special appearance negating all bases of personal

jurisdiction asserted by the plaintiff. Moki Mac River Expeditions v. Drugg, 221 S.W.3d

569, 574 (Tex. 2007); BMC Software Belg., 83 S.W.3d at 793; El Puerto de Liverpool,

S.A. de C.V. v. Servi Mundo Llantero, S.A. de C.V., 82 S.W.3d 622, 628 (Tex. App.—

Corpus Christi–Edinburg 2002, pet. dism’d w.o.j.).

      Whether the trial court has personal jurisdiction over a defendant is a question of

law. BMC Software Belg., 83 S.W.3d at 794. Thus, we review the trial court’s ruling on

a special appearance de novo. Id. The trial court determines the special appearance by

referring to the pleadings, any stipulations made by and between the parties, any

affidavits and attachments filed by the parties, discovery, and any oral testimony. TEX. R.

CIV. P. 120a(3).

      If the trial court does not issue findings of fact and conclusions of law, we must

imply all facts necessary to support the judgment if those facts are supported by the

evidence, and we presume that the trial court resolved all factual disputes in favor of its



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ruling. BMC Software Belg., 83 S.W.3d at 795; Glattly v. CMS Viron Corp., 177 S.W.3d

438, 445 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Am. Type Culture

Collection v. Coleman, 83 S.W.3d 801, 805–06 (Tex. 2002)). Any implied findings are

not conclusive and may be challenged for legal and factual sufficiency if the appellate

record contains the reporter’s and clerk’s records. BMC Software Belg., 83 S.W.3d at

795.

                             III.   PERSONAL JURISDICTION

       Because Garcia does not challenge on appeal that Flores’s pleadings contained

allegations bringing Garcia within the provisions of the Texas long-arm statute, the burden

is on Garcia to negate all pleaded jurisdictional bases of personal jurisdiction and,

thereby, establish a violation of his due process rights. Thus, to have prevailed on his

special appearance, Garcia must have established either that (1) he did not have

minimum contacts with Texas by purposefully availing himself of the privilege of

conducting activities in Texas or (2) his potential liability did not arise from or was not

substantially connected to those contacts. In other words, Garcia must show there was

not a substantial connection between Garcia’s contacts and the operative facts of the

litigation. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Moki Mac River

Expeditions, 221 S.W.3d at 585; Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at

226.

A.     Minimum Contacts

       A defendant must have sufficient minimum contacts with Texas to support the

exercise of personal jurisdiction. Burger King Corp., 471 U.S. at 475; Michiana Easy



                                                5
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). The touchstone of

minimum contacts is whether the nonresident defendant “purposefully availed” himself of

the privilege of conducting business in Texas. Burger King Corp., 471 U.S. at 475;

Michiana Easy Livin’ Country, Inc., 168 S.W.3d at 784. In determining whether purposeful

availment has occurred, there are three considerations. Michiana Easy Livin’ Country,

Inc., 168 S.W.3d at 785. First, we consider only the nonresident defendant’s contacts

with the forum state. Id. (quoting Burger King Corp., 471 U.S. at 475 (“This ‘purposeful

availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely

as a result of . . . the ‘unilateral activity of another party or a third person.’”)). Second, we

consider whether the contacts were purposeful and not “random, isolated, or fortuitous.”

Id.   Finally, we consider whether the nonresident defendant sought “some benefit,

advantage, or profit by ‘availing’ itself of the jurisdiction.” Id.; see Moncrief Oil Int’l Inc. v.

OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013); Retamco Operating, Inc. v. Republic

Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). We analyze the defendant’s contacts on

a claim-by-claim basis unless all the claims arise from the same forum contacts. Moncrief

Oil Int’l Inc., 414 S.W.3d at 150–51.

       Minimum contacts may be found when the nonresident defendant purposefully

avails himself of the privileges and benefits inherent in conducting business in the forum

state. Moki Mac River Expeditions, 221 S.W.3d at 575 (“[A] defendant must seek some

benefit, advantage or profit by ‘availing’ itself of the jurisdiction.” (quoting Michiana Easy

Livin’ Country, Inc., 168 S.W.3d at 785)); Michiana Livin’ Country, Inc., 168 S.W.3d at 784

(“For half a century, the touchstone of jurisdictional due process has been ‘purposeful

availment.’”); see Burger King Corp., 471 U.S. at 474–75. Minimum contacts with the



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forum state may establish either specific or general jurisdiction over the nonresident

defendant. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414. There is specific

jurisdiction over the nonresident defendant if the defendant purposefully directed his

activities at residents of Texas and the litigation arose from or related to those contacts.

See Burger King, 471 U.S. at 472; Helicopteros Nacionales de Colombia, S.A., 466 U.S.

at 414; Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 227. Specific jurisdiction

exists if there is a substantial connection between the nonresident defendant’s contacts

and the operative facts of the litigation. Moki Mac River Expeditions, 221 S.W.3d at 585.

On the other hand, the forum state has general jurisdiction over the nonresident

defendant if the defendant’s contacts in the forum state are continuous and systematic.

BMC Software Belg., 83 S.W.3d at 796. General jurisdiction allows the forum state to

exercise personal jurisdiction over the defendant “even if the cause of action did not arise

from or relate to activities conducted within the forum state.” Id.

       Even if the nonresident defendant has purposefully availed himself of personal

jurisdiction in Texas, we must also conclude that the defendant’s liability arises from or is

substantially connected to those contacts. See Burger King Corp., 471 U.S. at 472;

Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414; Guardian Royal Exch.

Assurance, Ltd., 815 S.W.2d at 226. Thus, we review the substantial connection between

the operative facts of the litigation based on the claims and the defendant’s contacts with

Texas. Retamco Operating, Inc., 278 S.W.3d at 340.

       1.     Operative Facts

       Here, according to a liberal construction of Flores’s pleadings, Garcia agreed to

sell Flores a rig for $65,000 and promised that Flores could pay for the rig by hauling



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produce from Garcia’s business located in Hidalgo County. 2 Flores claimed that Garcia

breached the contract when he stopped hiring him to haul produce and that Flores could

no longer pay for the rig due to Garcia’s breach. In addition, Flores alleged that Garcia

committed fraud, breach of good faith and fair dealing, and intentional infliction of

emotional distress by telling him that he would hire Flores to haul produce for his Texas

business to pay for the rig knowing that he would then renege on the agreement and

intending to “steal or defraud” Flores. Finally, Flores alleged that Garcia committed theft

by hiring the towing company to take the rig without Flores’s effective consent.

        Garcia did not negate these allegations; thus, we take them as true in our analysis.

In addition, we conclude that Flores’s claims all arose from the same contacts Garcia had

with Texas; thus, we will not analyze Flores’s claims separately. See Moncrief Oil Int’l

Inc., 414 S.W.3d at 150–51.

        2.      Discussion

        Here, taking Flores’s pleadings as true, Garcia chose to hire a Texas resident to

haul produce in Texas for his Texas business so that Flores could purchase the rig from

Garcia. And, Garcia decided to stop hiring Flores to haul produce, prevented Flores from

acquiring a nonnegotiable title in order to pay for the remaining balance on the rig, and

repossessed the rig when Flores was unable to pay for it. Accordingly, according to

Flores’s pleadings, neither Flores, nor any third party, unilaterally decided to enter the


         2 We note that at the special appearance hearing, the trial court admitted Garcia’s exhibits,

including, among other things, a copy of the signed purchase agreement that was signed in Georgia. See
Leonard v. Salinas Concrete, LP, 470 S.W.3d 178, 190 (Tex. App.—Dallas 2015, no pet.) (“[E]ven in
instances where a contract was signed in another state, an out-of-state company with no physical ties to
Texas still has minimum contacts with Texas when it is clear the company purposefully directed its activities
toward Texas.” (quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 340 (Tex.
2009))). The purchase agreement does not mention how Flores was expected to pay for the rig. Flores
did not allege that there was a written contract regarding how he would pay for the rig.


                                                         8
contract or commit the alleged torts. In addition, Garcia’s contacts with Texas were not

random or fortuitous as he allegedly fraudulently agreed to hire a Texas resident to

perform contractual duties in Texas for the benefit of his Texas business and then

breached that agreement and caused the rig to be repossessed. Lastly, by entering into

the contract, Garcia sought to benefit his Texas business. See Citrin Holdings, LLC v.

Minnis, 305 S.W.3d 269, 281 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“It is

reasonable to subject a nonresident defendant to personal jurisdiction in Texas in

connection with litigation arising from a contract specifically designed to benefit from the

skills of a Texas resident who performs contractual obligations in Texas.”).

       Therefore, Garcia should have reasonably expected that litigation in Texas could

arise from his decision to allow Flores, a Texas truck driver, to pay for the rig by hauling

produce in Texas for the benefit of Garcia’s Texas business and then reneging on that

agreement and improperly taking the rig from Flores in Texas. See Nogle & Black

Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 283 (Tex. App.—Houston [14th Dist.] 2009,

no pet.) (finding it reasonable for the nonresident defendant to expect being sued in Texas

when the nonresident defendant chose to hire a Texas engineer to perform work in

Texas); Citrin Holdings, LLC, 305 S.W.3d at 281 (stating that the place of the contract’s

performance is an important consideration in our minimum contacts analysis and

concluding that it is reasonable to subject a nonresident defendant to personal jurisdiction

in Texas when the litigation stems from a contract specifically designed to benefit from

skills of a Texas resident performing contractual obligations in Texas); see also Barnstone

v. Congregation Am Echad, 574 F.2d 286, 288–89 (5th Cir. 1978) (noting that “it is the

place of performance rather than execution, consummation or delivery which should



                                                9
govern the determination of jurisdiction” and holding that plaintiff's “unilateral partial

performance” in Texas was insufficient to establish jurisdiction); Retamco Operating, Inc.,

278 S.W.3d at 340 (determining that nonresident defendants who sign a contact out-of-

state with no physical ties to Texas had minimum contacts with Texas when it is clear that

the defendant purposefully directed its activities towards Texas).                      Accordingly, we

conclude that Garcia has purposefully availed himself of the privilege of conducting

activities in Texas. Moreover, we conclude there is a substantial connection between the

forum, Garcia’s contacts to it, and the operative facts of the litigation, as the alleged

contacts form the basis of Flores’s claims. See Retamco Operating, Inc., 278 S.W.3d at

340.

B.      Fair Play and Substantial Justice

        Next, Garcia argues that the exercise of personal jurisdiction over him offends

notions of fair play and substantial justice because: he resides in Georgia; he was only

involved in the underlying transaction as a representative of A. Garcia Produce &

Trucking, LLC; the underlying transaction occurred in Georgia; he does not own the rig at

issue; and Flores made all of his payments to a Georgia address. 3 Finally, Garcia states,

“The severe burden to Mr. Garcia of defending a lawsuit in Texas, when he has no

personal interest in the underlying transaction, outweighs any Texas interest presented

by the Texas plaintiff, Mr. Flores.” 4


        3  The rig is owned by A. Garcia Produce & Trucking, LLC. However, in Texas any individual doing
business under an assumed name may sue or be sued in its assumed or common name for the purpose
of enforcing for or against it as substantive right. See TEX. R. CIV. P. 28 (“Any partnership, unincorporated
association, private corporation, or individual doing business under an assumed name may sue or be sued
in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive
right, but on a motion by any party or on the court’s own motion the true name may be substituted.”).
        4   Garcia did not make any of these arguments in his special appearance.


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       To defeat personal jurisdiction, Garcia had the burden of establishing that the

exercise of personal jurisdiction would offend traditional notions of fair play and

substantial justice. Citrin Holdings, LLC, 305 S.W.3d at 279. Garcia must have presented

a compelling case that the exercise of personal jurisdiction was unreasonable for any

reason. Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 231 (quoting Burger King,

471 U.S. at 477); Hoagland v. Butcher, 396 S.W.3d 182, 196 (Tex. App.—Houston [14th

Dist.] 2013, pet. denied) (noting the defendants’ failure to provide argument in his special

appearance regarding how the exercise of personal jurisdiction would offend traditional

notions of fair play and substantial justice and holding that therefore the defendants failed

to show that the trial court’s exercise of personal jurisdiction over them would do so).

“Only in rare cases will the exercise of personal jurisdiction not comport with fair play and

substantial justice when the nonresident defendant purposefully has established

minimum contacts with the forum state.” Moring v. Inspectorate Am. Corp., 529 S.W.3d

145, 156 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (citing Guardian Royal

Exch. Assurance, Ltd., 815 S.W.2d at 231). We determine whether the exercise of

personal jurisdiction offends traditional notions of fair play and substantial justice by

reviewing the following: (1) the burden on the defendant; (2) the interests in the forum

state in adjudicating the dispute; (3) the plaintiff’s interests in obtaining convenient and

effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient

resolution of controversies; and (5) the shared interest of the states in furthering

fundamental substantive social policies. Hoagland, 396 S.W.3d at 195; Citrin Holdings,

LLC, 305 S.W.3d at 288 (citing Burger King, 471 U.S. at 476–77).

       In his special appearance, Garcia did not address any of the above-listed factors



                                                 11
for the trial court to consider. Garcia did not explain why the trial court should have

decided that these factors weigh in his favor or otherwise demonstrate how, after

weighing these factors, the exercise of personal jurisdiction over him offends traditional

notions of fair play and substantial justice. Thus, Garcia did not make a compelling

showing that the exercise of personal jurisdiction over him would offend notions of fair

play and substantial justice. Moreover, the state of Texas has an obvious interest in

providing a forum for resolving disputes involving its citizens, particularly disputes

involving allegations that a defendant committed torts in whole or in part in Texas. See

Hoagland, 396 S.W.3d at 196 (concluding that the defendant failed to make a compelling

case that the exercise of personal jurisdiction offended notion of fair play and substantial

justice by not analyzing this issue in their special appearance motion). We overrule

Garcia’s first issue. 5

                                         IV.     CONCLUSION

        We affirm the trial court’s judgment.


                                                         JAIME TIJERINA,
                                                         Justice


Delivered and filed the
26th day of September, 2019.




        5 By his second issue, Garcia contends that the trial court erred by concluding that he waived his
special appearance by filing a motion to dismiss pursuant to Rule 91a. However, we need not address this
issue as it is not dispositive of this appeal. See TEX. R. APP. P. 47.1.


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