Opinion
01-21-00084-CV
02-24-2022
DEVON ENERGY CORPORATION AND DEVON ENERGY PRODUCTION COMPANY, L.P., Appellants v. JESUS MORENO, Appellee
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2020-39351
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
MEMORANDUM OPINION
SHERRY RADACK, CHIEF JUSTICE
Appellee, Jesus Moreno, a Texas resident, brought negligence claims against appellants, Devon Energy Corporation ("DEC") and Devon Energy Production Company, L.P. ("DEPCO") (collectively, the "Devon Entities"), for personal injuries he sustained while working on a drilling rig in New Mexico. In this interlocutory appeal, the Devon Entities challenge the trial court's order denying their special appearances. In two issues, they contend that Moreno's jurisdictional allegations are insufficient to invoke personal jurisdiction over them and that the jurisdictional evidence negates his allegations.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(7).
We reverse and render.
Background
In his petition, Moreno alleged that, on October 13, 2017, while he was working on a "land rig, known as Rig No. 242, at a drilling site . . . managed, owned, and operated by" the Devon Entities, a blowout preventer failed, causing him to be "thrown down to the rig floor" several feet below and to suffer serious injuries, including to his head and back. He brought negligence claims against the Devon Entities, alleging that they had failed to properly manage and operate the drilling operations, to maintain and inspect the equipment, to ensure a safe workplace, to warn of dangerous conditions, to train employees and contractors, and to provide adequate medical treatment. He sought damages for medical expenses, pain, mental anguish, impairment, and a loss of earnings. He also sought punitive damages.
In his petition, Moreno did not state the location of the rig, for whom he was working, or the circumstances of his fall.
With respect to personal jurisdiction, Moreno alleged that the Devon Entities are "Texas residents, conduct a substantial amount of business in Texas, and/or the cause of action accrued in Texas." He also asserted that the Devon Entities conduct a "substantial amount of business in Harris County, Texas."
The Devon Entities filed combined special appearances. Each asserted that the trial court lacked personal jurisdiction over it because Moreno did not meet his initial burden to plead sufficient allegations to bring it within the provisions of the Texas long-arm statute and because the jurisdictional evidence negated his allegations. Each asserted that exercising jurisdiction over it would deny it due process, offending traditional notions of fair play and substantial justice.
The Devon Entities argued that Moreno's allegations fell short of the type and degree of contacts necessary to establish specific jurisdiction because he "failed to allege any acts or omissions occurring in Texas" and nothing in the jurisdictional evidence established that Moreno worked in Texas or that he was injured in Texas. Rather, the Devon Entities asserted that the evidence showed that the drilling rig, on which Moreno was allegedly injured, was located in New Mexico and that "[n]o operative fact in this litigation occurred any place outside of New Mexico."
The Devon Entities argued that Moreno's allegations fell short of the type and degree of contacts necessary to establish general jurisdiction because he simply stated that they did "unspecified 'business' in Texas," and he "failed to allege that either of the Devon Entities is incorporated or headquartered in Texas." The Devon Entities asserted that the jurisdictional evidence established that DEC is incorporated in Delaware and has its principal place of business in Oklahoma. And, although it "owns subsidiaries with operations in Texas," it has "no operations in Texas." In addition, DEPCO, an indirect subsidiary of DEC, is an Oklahoma limited partnership and has its principal place of business in Oklahoma.
In support of their special appearances, the Devon Entities attached the affidavit of DEPCO's senior counsel and assistant corporate secretary, Edward Highberger. In his affidavit, Highberger testified that, based on his review of the incident report, Moreno was working at a jobsite in New Mexico at the time of his alleged injury and was "not working in Texas for any Devon Entity at the time." Highberger testified that DEC is a corporation organized under the laws of the State of Delaware, has its headquarters in Oklahoma, and "has no operations, either in Texas or anywhere else." He testified that DEPCO is a limited partnership organized under the laws of the State of Oklahoma and has its principal place of business in Oklahoma.
In his response, as supplemented, to the special appearances, Moreno argued that "Devon Energy indisputably has sufficient minimum contacts with Texas to justify general jurisdiction," because "Devon Energy":
Moreno used the name "Devon Energy" to apply collectively to DEC and DEPCO.
(1) profits from owning over [100, 000] acres of Texas land;
(2) produces at least 47, 000 barrels a day of oil from drilling in Texas;
(3) regularly has employees performing work on its behalf in Texas;
(4) dedicates an entire web page to its lucrative Texas operations; and
(5) is currently involved in other litigation in Texas.
In support, Moreno presented the deposition testimony of the Devon Entities' corporate representative and statements from their website, as discussed below. Moreno also argued that exercising jurisdiction over the Devon Entities comports with traditional notions of fair play and substantial justice.
After a hearing, the trial court denied the Devon Entities' special appearances.
Personal Jurisdiction
In their first and second issues, the Devon Entities argue that the trial court erred in denying their special appearances because Moreno failed to meet his initial burden to present jurisdictional allegations sufficient to invoke personal jurisdiction over them and because the jurisdictional evidence negates his allegations.
A. Standard of Review and Guiding Legal Principles
A court may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm statute and due process requirements of the Fourteenth Amendment to the United States Constitution are satisfied. See U.S. Const. amend. XIV, § 1; Tex. Civ. Prac. & Rem. Code § 17.042; Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226-27 (Tex. 1991).
The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant who "does business" in Texas. Tex. Civ. Prac. & Rem. Code § 17.042. A nonresident does business in Texas if, inter alia, it contracts with a Texas resident and either party is to perform the contract in Texas; it commits a tort in Texas; or it recruits Texas residents for employment. Id.; see Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 659 n.9 (Tex. 2010) (noting list is non-exclusive). The broad "doing business" language allows the trial court's jurisdiction to "reach as far as the federal constitutional requirements of due process will allow." Kelly, 301 S.W.3d at 657 (quoting Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007)).
The United States Constitution allows a state court to assert personal jurisdiction over a nonresident defendant only if the defendant has some minimum, purposeful contacts with the state and if the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998). A nonresident has sufficient contacts with a state to confer personal jurisdiction if it has purposefully availed itself of the privileges and benefits of conducting business in the state. Guardian Royal, 815 S.W.2d at 226.
The Texas Supreme Court has characterized the "purposeful availment" requisite as the "touchstone of jurisdictional due process." Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In Michiana, the court articulated three important aspects of the purposeful availment inquiry. Id. at 785. First, only the defendant's contacts with the forum count. Id. This ensures that a defendant is not haled into a jurisdiction solely by the unilateral activities of a third party. Id. Second, the acts relied on must be purposeful; a defendant may not be haled into a jurisdiction solely based on contacts that are "random, isolated, or fortuitous." Id. Third, a defendant "must seek some benefit, advantage, or profit by 'availing' itself of the jurisdiction." Id. By "invoking the benefits and protections of a forum's laws, a nonresident consents to suit there." Id.
A defendant's contacts with a forum can give rise to either specific or general jurisdiction. Moki Mac, 221 S.W.3d at 575-76. To constitute the minimum contacts required for a Texas court to exercise specific jurisdiction over a nonresident defendant: (1) the defendant's contacts with Texas must be purposeful, as discussed above, and (2) the cause of action must "arise from or relate to" those contacts. Id. at 579. For a cause of action to "arise from or relate to" purposeful forum contacts, "there must be a substantial connection between those contacts and the operative facts of the litigation." Id. at 585; see also Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S.Ct. 1773, 1780 (2017).
Conversely, general jurisdiction "involves a court's ability to exercise jurisdiction over a nonresident defendant based on any claim, including claims unrelated to the defendant's contacts with the state." M&F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 885 (Tex. 2017); see also Bristol-Myers Squibb Co., 137 S.Ct. at 1780 ("A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State."). Although there is not a precise formulation for the point at which "jurisdictional contacts reach a tipping point," the general jurisdiction inquiry is "very different from a specific jurisdiction inquiry" and involves a "more demanding minimum contacts analysis," with a "substantially higher threshold." PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 168 (Tex. 2007). "Usually, 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; activities that are less extensive than that will not qualify for general in personam jurisdiction." Id. (internal quotations omitted).
With respect to a corporation, the place of incorporation and principal place of business are "paradig[m] . . . bases for general jurisdiction." Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (discussing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924-25 (2011)). "Those affiliations have the virtue of being unique-that is, each ordinarily indicates only one place-as well as easily ascertainable." Id. Such bases afford a plaintiff "recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims." Id. Notably, however, "Goodyear did not hold that a corporation may be subject to general jurisdiction only in a forum where it is incorporated or has its principal place of business; it simply typed those places paradigm all-purpose forums." Id. "A court may assert general jurisdiction over foreign . . . corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Id. at 127; see also Old Republic Nat'l Title Ins. Co. v. Bell, 549 S.W.3d 550, 565 (Tex. 2018) ("Even when a defendant's contacts may be continuous and systematic, they are insufficient to confer general jurisdiction if they fail to rise to the level of rendering a defendant "essentially at home in the forum State." (quoting Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016))).
Whether a corporate defendant is "at home" in the forum state requires "an appraisal of [its] activities in their entirety, nationwide and worldwide." Daimler AG, 571 U.S. at 140 n.20. "A corporation that operates in many places can scarcely be deemed at home in all of them." Id. at 138, 140 n.20 (characterizing exercise of general jurisdiction in every State in which corporation "engages in a substantial, continuous, systematic course of business" as "unacceptably grasping"); see also Bautista v. Trinidad Drilling Ltd., 484 S.W.3d 491, 499-500 (Tex. App.-Houston [1st Dist.] 2016, no pet.). To determine whether a nonresident defendant has continuous and systematic contacts with Texas sufficient to support general jurisdiction, the court examines the defendant's contacts and forum-related activities up to the time suit was filed. PHC-Minden, 235 S.W.3d at 170.
A trial court determines a special appearance "on the basis of the pleadings, any stipulations made by and between the parties, 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); see Touradji v. Beach Capital P'ship, L.P., 316 S.W.3d 15, 23 (Tex. App.-Houston [1st Dist.] 2010, no pet.) ("The plaintiff's original pleadings as well as its response to the defendant's special appearance can be considered in determining whether the plaintiff satisfied its burden."). When a case involves multiple defendants, their contacts cannot be aggregated. See Loya v. Taylor, No. 01-14-01014-CV, 2016 WL 6962312, at *3 (Tex. App.-Houston [1st Dist.] Nov. 29, 2016, pet. denied) (mem. op.). Rather, the plaintiff must specify, and the court must examine, each defendant's actions and contacts with the forum. Id.
The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the Texas long-arm statute. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002). If the pleading is wholly devoid of jurisdictional facts, the plaintiff should be given a chance to amend the pleading to include the necessary factual allegations, "thereby allowing jurisdiction to be decided based on evidence rather than allegations, as it should be." Kelly, 301 S.W.3d at 659. Then, if the plaintiff fails to plead facts bringing the defendant within reach of the long-arm statute, the defendant need only prove that it does not live in Texas to negate jurisdiction. Id. at 658-59. If the plaintiff meets its initial burden, the burden shifts to the nonresident defendant to negate the plaintiff's alleged bases of jurisdiction, which it can do
on either a factual or legal basis. Factually, the defendant can present evidence that it has no contacts with Texas, effectively disproving the plaintiff's allegations. The plaintiff can then respond with its own evidence that affirms its allegations, and it risks dismissal of its lawsuit if it cannot present the trial court with evidence establishing personal jurisdiction. Legally, the defendant can show that even if the plaintiff's alleged facts are true, the evidence is legally insufficient to establish jurisdiction; the defendant's contacts with Texas fall short of purposeful availment; for specific jurisdiction, that the claims do not arise from the contacts; or that traditional notions of fair play and substantial justice are offended by the exercise of jurisdiction.Id. at 659. "Because the plaintiff defines the scope and nature of the lawsuit, the defendant's corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading." Id. at 658.
We review a trial court's determination of a special appearance de novo. Moki Mac, 221 S.W.3d at 574. The existence of personal jurisdiction is a question of law, which must sometimes be preceded by the resolution of underlying factual disputes. Michiana, 168 S.W.3d at 790-91; Predator Downhole Inc. v. Flotek Indus., Inc., 504 S.W.3d 394, 401 (Tex. App.-Houston [1st Dist.] 2016, no pet.). The trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony. Predator Downhole, 504 S.W.3d at 402. We will not disturb a trial court's resolution of conflicting evidence that turns on such credibility or weight. Id. When, as here, the trial court does not issue findings of fact or conclusions of law, all fact findings necessary to support the judgment and supported by the evidence are implied. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
B. Jurisdictional Allegations
The Devon Entities assert, as they did in their special appearances, that Moreno did not meet his initial burden to plead sufficient allegations to bring them within the provisions of the Texas long-arm statute. See Tex. Civ. Prac. & Rem. Code § 17.042; Coleman, 83 S.W.3d at 807.
Again, the Texas long-arm statute authorizes the exercise of jurisdiction over a nonresident defendant who "does business in Texas." Perna v. Hogan, 162 S.W.3d 648, 652 (Tex. App.-Houston [14th Dist.] 2005, no pet); see Tex. Civ. Prac. & Rem. Code § 17.042. In Huynh v. Nguyen, the court held that the plaintiff satisfied its initial burden by pleading that the defendant had "conducted business in Texas and committed torts in Texas." 180 S.W.3d 608, 619-20 (Tex. App.-Houston [14th Dist.] 2005, no pet.). The court noted that "[t]here is no requirement that plaintiffs or other claimants plead in their petition the theories or bases of personal jurisdiction upon which they rely; rather, the only relevant pleading requirement flows from the need to plead allegations sufficient to bring nonresident defendants within the provisions of the long-arm statute." Id. at 619. This minimal pleading requirement is satisfied by an allegation that the nonresident defendant is doing business in, or has committed an act in, Texas. Id. at 619-20.
Here, Moreno's initial burden was to plead that DEC and DEPCO each conducted business in Texas. See Kelly, 301 S.W.3d at 658. In his live petition, Moreno alleged that each "does a substantial amount of business in Harris County, Texas." Thus, Moreno satisfied the minimal pleading requirement. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (holding that courts liberally construe pleadings in favor of pleader when determining whether sufficient facts alleged to confer jurisdiction); Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Co., 472 S.W.3d 744, 763 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (holding allegation that defendant "was doing business in Houston, Harris County, Texas" sufficient to carry plaintiff's initial burden); Huynh, 180 S.W.3d at 619 (holding that minimal pleading requirement satisfied by allegation that nonresident defendant is doing business in Texas).
C. Jurisdictional Evidence
We next consider whether the Devon Entities met their burden to present evidence negating Moreno's alleged bases for personal jurisdiction. See Kelly, 301 S.W.3d at 658. And, if so, whether Moreno responded with his own evidence affirming his allegations. See id. at 659.
The Devon Entities assert on appeal that "Moreno did not specify which type of jurisdiction was present in this case, but [that] the record indisputably shows that the Trial Court has neither specific nor general jurisdiction over the Devon Entities." Moreno asserts that we must assume that the trial court's ruling was based on finding that the Devon Entities were subject to both specific and general jurisdiction.
1. Specific Jurisdiction
In their first issue, the Devon Entities argue that the Texas trial court lacks specific jurisdiction over them because the jurisdictional evidence negates that Moreno was injured in Texas and that any of the complained-of acts or omissions occurred in Texas. Rather, it is undisputed that the operative facts occurred in New Mexico.
The record shows that the trial court's order does not specify the grounds for its ruling, and no findings of fact and conclusions of law were requested or filed. Thus, as Moreno asserts, all findings necessary to support the judgment and supported by the evidence are implied. See Marchand, 83 S.W.3d at 795.
As noted, to constitute the minimum contacts required for a Texas court to exercise specific jurisdiction: (1) the nonresident defendant's contacts with Texas must be purposeful and (2) the cause of action must "arise from or relate to" those contacts. Moki Mac, 221 S.W.3d at 579; Coleman, 83 S.W.3d at 806 (noting that "two requirements must be met"). "[P]urposeful availment has no jurisdictional relevance unless the defendant's liability arises from or relates to the forum contacts." Moki Mac, 221 S.W.3d at 579; see Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 14 (Tex. 2021) ("Despite a nonresident defendant's flood of purposeful contacts with the forum state, the exercise of specific jurisdiction is prohibited if 'the suit' does not 'aris[e] out of or relat[e] to the defendant's contacts with the forum.'" (quoting Bristol-Myers, 137 S.Ct. at 1780 (emphasis omitted))). Here, the second factor is dispositive.
In his petition, Moreno asserted that he "was working on a land rig, known as Rig No. 242, at a drilling site that was managed, owned, and operated by Defendants and because of the failure to properly manage and operate the drilling operations and specifically the blowout preventer . . ., [he] was thrown down to the rig floor and fell several feet below," resulting in serious injuries. He did not assert where the drilling site was located or where his injuries or the alleged acts or omissions occurred.
The Devon Entities attached in support of their special appearances the affidavit of Highberger. Highberger testified that, based on his review of the incident report, Moreno "worked at a jobsite in New Mexico at the time he was allegedly injured," and Moreno complained of acts and omissions occurring in New Mexico. Highberger testified that Moreno "was not working in Texas for any Devon entity at the time of the alleged incident." Because Moreno did not assert that his injuries occurred in Texas, that any of the alleged acts or omissions by the Devon Entities occurred in Texas, or that his cause of action related to any contacts that the Devon Entities had with Texas, the Devon Entities' jurisdictional evidence meets their burden to negate that their liability "arises from or relates to" any contacts with the Texas forum. See Kelly, 301 S.W.3d at 658 (holding that defendant's burden to negate jurisdiction is "tied to the allegations in the plaintiff's pleading").
In his response to the special appearances, Moreno did not argue that his evidence demonstrates that the Texas trial court has specific jurisdiction over the Devon Entities. Thus, Moreno did not meet his burden to respond to the Devon Entities' evidence with his own jurisdictional evidence affirming his allegations. See id. at 659.
Moreno argues on appeal that the Texas trial court has specific jurisdiction over the Devon Entities' because their liability is "related to an activity conducted within the forum." Namely, he asserts that he "was injured by performing the same activities in New Mexico that Appellants perform in Texas-extracting natural resources for profit." In support of his argument, he asserts that "[t]his case is no different" than Ford Motor Company v. Montana Eighth Judicial District Court, 141 S.Ct. 1017, 1026 (2021).
In Ford, the United States Supreme Court considered whether defendant Ford Motor Company, a global auto manufacturer and marketer, was subject to specific jurisdiction in Montana and Minnesota. Id. at 1022, 1026. There, in each of the two underlying products-liability suits, the resident-plaintiff alleged that a defective Ford vehicle had caused a crash, resulting in harm, in the forum state. Id. at 1022-23. In each case, Ford conceded that it had purposefully availed itself of the forum state- having advertised, sold, and serviced the two car models at issue in each state. Id. at 1026, 1028. Ford contended that specific jurisdiction was lacking in both cases, however, because its activities in the forums did not give rise to, or cause, the plaintiffs' claims. Id. at 1026. That is, it asserted, it did not design, manufacture, or sell the specific cars at issue within the forum states. Id. at 1023, 1026. Rather, other consumers had sold the subject cars to residents of the forum states. Id. at 1022-23.
The Supreme Court noted that specific jurisdiction demands that a suit "arise out of or relate to the defendant's contacts with the forum." Id. at 1026. The phrase "arise out of' involves a causation question, i.e., that the "plaintiff's claim came about because of the defendant's in-state contact." Id. The phrase "relate to," however, "contemplates that some relationships will support jurisdiction without a causal showing." Id. "That does not mean anything goes," the Court warned, because the phrase "'relate to' incorporates real limits" to adequately protect nonresident defendants. Id. There must be an "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place" in the forum. Id. at 1031 (quoting Bristol-Myers, 137 S.Ct. at 1779-81).
The Court did not, as Moreno asserts on appeal, state that a court "need only find some relation to the defendant's contacts with the forum."
The Court concluded that Ford's conduct "related to" the claims at issue because it had "systematically served a market in Montana and Minnesota for the very vehicles [i.e., an Explorer and a Crown Victoria] that the plaintiffs allege[d] had malfunctioned and injured them in those States." Id. at 1028 (emphasis added). Thus, there was a "strong relationship among the defendant, the forum, and the litigation-the essential foundation of specific jurisdiction." Id. The plaintiffs "used the allegedly defective products in the forum States," and they "suffered injuries when those products malfunctioned in the in the forum States." Id. at 1031. The Court held that "[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State's courts may entertain the resulting suit." Id. at 1022.
Here, unlike in Ford, the undisputed jurisdictional evidence establishes that the complained-of liability and injuries occurred in New Mexico, not in Texas. See Moki Mac, 221 S.W.3d at 585. There is no jurisdictional evidence, or any factual allegations, of any "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place" in Texas. See Ford Motor Company, 141 S.Ct. at 1031 (quoting Bristol-Myers, 137 S.Ct. at 1780).
We conclude that this case is more like Kelly v. Syria Shell Petroleum Development B.V., 213 F.3d 841 (5th Cir. 2000). There, when a Syrian oil well began leaking oil and gas, the operator contracted with a Texas firm for workers to perform blowout response and well-killing services. Id. at 844. The Texas firm sent three firefighters to Syria. Id. During the work, gas escaping from the well ignited, killing the firefighters. Id. Their families brought negligence suits in a Texas court against various entities. Id. at 844-45. They asserted that the Texas court had specific jurisdiction over defendant Syria Shell Petroleum Development because it owned a portion of the operator and had acted with the operator in obtaining services from Texas. Id. at 854. The United States Court of Appeals for the Fifth Circuit held that the Texas court did not have specific jurisdiction over Shell. Id. at 855. The court concluded that, even if Shell had minimum contacts with Texas, the plaintiffs' claims did not arise out of those contacts. Id. Instead, they arose from alleged tortious acts committed in Syria. Id.
Here, similar to Kelly, Moreno, a Texas resident, brought negligence claims in a Texas court, complaining of injuries sustained while working outside the Texas forum and based on allegations of acts or omissions occurring outside the Texas forum. Even if the Devon Entities have minimum contacts with Texas, the complained-of liability and injuries do not arise from or relate to those contacts. Thus, the Texas trial court lacks specific jurisdiction over the Devon Entities.
We conclude that the jurisdictional evidence negates specific jurisdiction as a basis for personal jurisdiction over either DEC or DEPCO.
2. General Jurisdiction
In their second issue, the Devon Entities argue, as they did in their special appearances, that the Texas trial court erred in exercising general jurisdiction over them because they presented evidence negating Moreno's jurisdictional allegations, and Moreno's jurisdictional evidence in rebuttal did not establish that they have such substantial contacts as to render them essentially "at home" in the forum. See Kelly, 301 S.W.3d at 658. Moreno asserts that his evidence in rebuttal establishes that the exercise of general jurisdiction was proper. See id. at 659.
Again, with respect to a corporation, the place of incorporation and principal place of business are "paradig[m] . . . bases for general jurisdiction." Daimler AG, 571 U.S. at 137. In addition, a court "may assert general jurisdiction over foreign . . . corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Id. at 127. We do not view each contact in isolation. See Coleman, 83 S.W.3d at 809. "All contacts must be carefully investigated, compiled, sorted, and analyzed for proof of a pattern of continuing and systematic activity." Id.
In support of their special appearances, the Devon Entities presented Highberger's affidavit. He testified that DEC is a corporation organized under the laws of the State of Delaware and has its headquarters in Oklahoma. He testified that DEC is the "publicly traded corporate parent of all Devon entities and has no operations, either in Texas or anywhere else." Further, DEPCO is a limited partnership organized under the laws of the State of Oklahoma and has its principal place of business in Oklahoma. He testified that DEPCO "operates out of its corporate headquarters in Oklahoma City, Oklahoma," and "[t]his headquarters is also the location of DEPCO's upper management's offices." Highberger noted that "[n]either DEC nor DEPCO conduct a substantial amount of business in Harris County." Moreno did not present any evidence in rebuttal to establish that DEC or DEPCO is either incorporated in Texas or has its principal place of business in Texas. Thus, the jurisdictional evidence establishes that Texas is not one of the paradigmatic forums in which the Devon Entities may be fairly regarded as being "at home." See Daimler AG, 571 U.S. at 137; Chevron Bangladesh Block Twelve Ltd. v. Baldwin, No. 01-17-00303-CV, 2017 WL 6043686, at *3 (Tex. App.- Houston [1st Dist.] Dec. 7, 2017, no pet.) (mem. op.).
Accordingly, general jurisdiction can be premised in this case only upon a showing that the Devon Entities' Texas contacts are "exceptional" and "so 'continuous and systematic' as to render them essentially at home" in Texas. See Daimler AG, 571 U.S. at 127, 133 n.11 (noting that defendant's contacts must be "exceptional" and "comparable to a domestic enterprise in that State"); McDaniel v. BP Amoco Expl. (In Amenas) Ltd., No. 01-17-00475-CV, 2018 WL 614392, at *2 (Tex. App.-Houston [1st Dist.] Jan. 30, 2018, no pet.) (mem. op.) ("[G]eneral jurisdiction over a corporate defendant may be had in exceptional cases in which the defendant's in-state operations are so substantial that they render it at home there."); see, e.g., Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 447-48 (1952) (wartime relocation of corporation's headquarters to state made it at home there).
Highberger further testified that DEC "has no operations, either in Texas or anywhere else." And, DEPCO "operates out of its corporate headquarters in Oklahoma City, Oklahoma." Moreno argued, in his response to the special appearances, that "Devon Energy," referring collectively to DEC and DEPCO, "clearly has continuous and systematic contacts with" Texas because it:
(1) profits from owning over [100, 000] acres of Texas land;
(2) produces at least 47, 000 barrels a day of oil from drilling in Texas;
(3) regularly has employees performing work on its behalf in Texas;
(4) dedicates an entire web page to its lucrative Texas operations; and
(5) is currently involved in other litigation in Texas.
In support, Moreno presented the deposition testimony of Kevin Harwi, a DEPCO land manager designated to speak as a corporate representative on behalf of the Devon Entities, and a printout from the "Devon Energy" website.
In his deposition, Harwi testified that the Devon Entities do "not have any drilling operations in the State of Texas." Rather, they have "an interest in a number of wells in two counties in the Eagle Ford in South Texas." Those counties are Karnes and DeWitt. Harwi explained that the Devon Entities are a "joint working interest owner with BPX, which is British Petroleum's operating arm in the United States," that the Devon Entities "have a 50 percent ownership with BPX [in] about a hundred thousand net acres," and that BPX is the "operator of all the drilling and completion operations in the Eagle Ford." He testified that the Devon Entities' Eagle Ford interest began in 2013 and has been continuous since that time. And, in 2019, the Devon Entities' production in DeWitt County was 47, 000 barrels per day, which "is 15 percent of the company." Harwi noted that, as a land manager, he is "involved in" the Eagle Ford operations and had traveled to Texas "a dozen" times during the preceding three years. Moreno noted that Harwi also testified:
Q: So, you would agree with me that Devon's Eagle Ford operations [Texas operations] have been both . . . continuous and systematic since December of 2013, and you don't see any end in sight, at least that you know of, as a . . . corporate representative for Devon, correct?
. . . .
A: It is-it is the current state today.
Moreno's printout from the "Devon Energy" website states as follows:
Devon's Eagle Ford operations are located in DeWitt county. This world-class light-oil position is delivering outstanding well results offering some of the highest rate-of-return drilling operations in North America.
The company's acreage is essentially derisked with at least one well drilled in each drilling unit. Activity in DeWitt has consistently delivered industry-leading results, making it the economic sweet spot in the Eagle Ford play. Devon's Eagle Ford production is leveraged to oil and has low-cost access to premium gulf coast pricing, providing for very solid operating margins.
Eagle Ford Key Stats
Production (2019 net): 47 MBOED (72% liquids) 15% of company
Reserves (12/31/19) 55 MMBOE
7% of company
Although the record shows that Harwi testified that the Devon Entities' Eagle Ford interest began in 2013 and had been continuous and systematic since that time, "[e]ven when a defendant's contacts may be continuous and systematic, they are insufficient to confer general jurisdiction if they fail to rise to the level of rendering a defendant 'essentially at home in the forum State.'" See Bell, 549 S.W.3d at 565 (quoting Searcy, 496 S.W.3d at 72).
Moreno argued in the trial court that his evidence shows that the Devon Entities, collectively, "own[] over one hundred thousand acres of land in Texas, operate[] countless drilling rigs in Texas, and . . . that 15% of [their] production originated from Texas in 2019."
The record shows that Harwi testified that the Devon Entities are a "joint working interest owner" with BPX in "about a hundred thousand net acres" located in "two counties in the Eagle Ford [shale] in South Texas." "[A] working interest is generally understood to mean a mineral interest created by a leasehold." Broesche v. Jacobson, 218 S.W.3d 267, 272 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). In Natural Gas Pipeline Company of America v. Pool, the Texas Supreme Court explained the nature of such an interest:
"[T]he Eagle Ford shale [is] an oil and gas formation encompassing thirteen million acres in South Texas." The Huff Energy Fund, L.P. v. Longview Energy Co., 482 S.W.3d 184, 187 (Tex. App.-San Antonio 2015), aff'd sub nom., Longview Energy Co. v. Huff Energy Fund LP, 533 S.W.3d 866 (Tex. 2017).
In Texas it has long been recognized that an oil and gas lease is not a 'lease' in the traditional sense of a lease of the surface of real property. In a typical oil or gas lease, the lessor is a grantor and grants a fee simple determinable interest to the lessee, who is actually a grantee. Consequently, the lessee/grantee acquires ownership of all the minerals in place that the lessor/grantor owned and purported to lease, subject to the possibility of reverter in the lessor/grantor. The lessee's/grantee's interest is 'determinable' because it may terminate and revert entirely to the lessor/grantor upon the occurrence of events that the lease specifies will cause termination of the estate.124 S.W.3d 188, 192 (Tex. 2003) (citations omitted); see also Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002) ("[A] typical Texas lease that lasts 'as long as oil or gas is produced' automatically terminates if actual production permanently ceases during the secondary term.").
Thus, an oil and gas lease is both a conveyance of an interest in real property and a contract. Browning Oil Co. v. Luecke, 38 S.W.3d 625, 643 (Tex. App.-Austin 2000, pet. denied). It is a conveyance of a determinable fee in the mineral estate, under which the mineral owner conveys to the lessee a working interest, that is, the rights to exploration, development, and production. See ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 867 (Tex. 2018); Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 543 n.2 (Tex. App.-Austin 1999, pet. denied) ("A working interest is the right to share in well production, subject to the costs of exploration and development."). It is also a contract because it is the instrument under which the lessee accepts the rights to explore, develop, and produce. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 (Tex. 2005); Cimarex Energy Co. v. Anadarko Petroleum Corp., 574 S.W.3d 73, 88-89 (Tex. App.-El Paso 2019, pet. denied).
With respect to Moreno's argument that the Texas trial court has jurisdiction over the Devon Entities because they, collectively, "own[] over one hundred thousand acres of land in Texas," the evidence shows that the Devon Entities share with BPX a fee simple determinable in a mineral estate, in a portion of the Eagle Ford shale in Texas, under which they share exploration, development, and production rights. Moreover, the presence of property in Texas is not alone sufficient to support in personam jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 213 (1977); see also Johnson v. Kindred, 285 S.W.3d 895, 903 (Tex. App.-Dallas 2009, no pet.) ("[T]he presence of property in a state, without more, does not automatically signify that the defendant has purposefully availed itself of the benefits and protections of state law.").
With respect to Moreno's argument that the trial court has jurisdiction because the Devon Entities "operate[] countless drilling rigs in Texas," his evidence shows that BPX is the "operator of all the drilling and completion operations" and that the Devon Entities "do not have any drilling operations in the State of Texas."
With respect to Moreno's argument that the trial court has jurisdiction because the Devon Entities realize production from their Texas mineral interest, the jurisdictional evidence presented shows that, in 2019, the Devon Entities, collectively, obtained 15 percent of their oil production and 7 percent of their oil reserves from their working interest in the Eagle Ford. This evidence is insufficient to confer general jurisdiction over the Devon Entities. The evidence reflects only one year of production. More importantly, the evidence also shows the converse, namely, that 85 percent of the Devon Entities' oil production and 93 percent of their reserves that year were outside of the State of Texas. "A corporation that operates in many places can scarcely be deemed at home in all of them." Daimler AG, 571 U.S. at 138, 140 n.20 (characterizing exercise of general jurisdiction in every state in which corporation "engages in a substantial, continuous, systematic course of business" as "unacceptably grasping").
Further, with respect to Moreno's argument that the trial court has jurisdiction because the Devon Entities employ Texas residents or have employees working in Texas, we consider only the defendant's own actions in determining whether it established purposeful contacts with Texas. See Michiana, 168 S.W.3d at 785. Evidence that a defendant employs Texas residents does not support an assertion of general jurisdiction because "it demonstrates only the unilateral choices of third parties who have some connection to [the defendant], rather than contacts and conduct by [the defendant]." All Star Enter., Inc. v. Buchanan, 298 S.W.3d 404, 416 (Tex. App.-Houston [14th Dist.] 2009, no pet.); see Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 409 (Tex. App.-Houston [1st Dist.] 2011, pet. denied) (holding that "[e]mployment of 200 Texas resident mariners [did] not constitute a purposeful contact with Texas"). Although having a continuous presence of employees in Texas is a factor we consider, this factor does not alone support a finding of general jurisdiction. See Ruiz, 355 S.W.3d at 418-19. The significance of the contact "depends on the type and nature of the office maintained." Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 217 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). For example, if an office is a permanent general business office through which the company solicits business in Texas, this factor weighs strongly in favor of finding general jurisdiction. Id.
Here, during Harwi's deposition, Moreno asked about three "Devon Energy" employees-a geological advisor, an operations engineer, and a project manager- whose personal online social media pages apparently noted some connection to Houston, Texas. Harwi testified that the geological advisor "is in Oklahoma City" and that he was not familiar with the others. Although Harwi also testified that one or more Devon entities had employed people in Texas at some point, he did not know how many "Devon employees" might be in DeWitt or Karnes counties, and he noted that the "number ha[d] changed a lot." There was no evidence presented of a continuous presence of any number of employees in Texas or of the type and nature of the offices maintained. See Ruiz, 355 S.W.3d at 418-19; Reid, 130 S.W.3d at 217. Thus, we cannot meaningfully consider this factor.
With respect to Moreno's assertion that the Devon Entities engaged in internet marketing, we note that passive websites, in which the nonresident defendant simply posts information that can be viewed in other jurisdictions and is accessible to anyone in the world connected to the internet, do not constitute purposeful availment of any particular state and thus will not support an exercise of personal jurisdiction. See Ruiz, 355 S.W.3d at 411-12. Here, the only evidence presented is of a passive website. See id. There is no evidence presented that the website is interactive, allows responses to customer inquiries through the website, or allows customers to enter into contracts. See id. at 412.
Finally, Moreno asserted in his response to the special appearances that the Devon Entities are subject to jurisdiction in this state because they have defended against other litigation in Texas. This Court has previously considered and rejected a similar argument. See James v. Ill. Cent. R.R. Co., 965 S.W.2d 594, 600 (Tex. App.-Houston [1st Dist.] 1998, no pet.) (rejecting injured switchman's claim that defendant railroad consented to Texas jurisdiction by defending other unrelated lawsuits in Harris County); see also Megadrill Servs. Ltd. v. Brighouse, 556 S.W.3d 490, 498 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (rejecting argument that party's consent to jurisdiction in one case extends to other unrelated lawsuits in same jurisdiction). Further, any other such litigation against the Devon Entities in Texas could be subject to jurisdictional factors not present here, such as the existence of specific jurisdiction or forum selection clauses. Consequently, that the Devon Entities may be former or current defendants in other Texas litigation does not establish that the Devon Entities have the continuous and systematic contacts with Texas necessary to establish general jurisdiction in this case. See Buchanan, 298 S.W.3d at 414.
Moreno asserts on appeal that the Devon Entities "consented to general personal jurisdiction in Texas when they registered in Texas." The record shows that Moreno alleged in his petition that the Devon Entities maintain a registered agent for service of process in Dallas, Texas. The Devon Entities did not present jurisdictional evidence to negate his allegations. Thus, this factor weighs in favor of finding general jurisdiction. See PHC-Minden, 235 S.W.3d at 168 (noting that "traditional indicia" of general jurisdiction include designating agent for service of process in forum). However, such factor is not dispositive of whether Texas courts can constitutionally exercise general jurisdiction. See Ruiz, 355 S.W.3d at 418; Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 414 (Tex. App.- Houston [14th Dist.] 1997, no pet.) (noting that being qualified to do business is of no special weight in evaluating general personal jurisdiction and that foreign corporation that properly complies with Texas registration statute only consents to personal jurisdiction where such is constitutionally permissible); see also Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir. 1992) ("To assert . . . that mere service on a corporate agent automatically confers general jurisdiction displays a fundamental misconception of corporate jurisdictional principles," directly contrary to International Shoe Co. v. Washington, 326 U.S. 310, 316-19 (1945)).
Moreno also asserts on appeal that general jurisdiction is supported by his evidence that Harwi traveled to Texas a "dozen" times in three years. Trips relating to the normal parent-subsidiary relationship, such as trips to provide support and conduct oversight, do not give rise to general jurisdiction. See Bautista, 484 S.W.3d at 500-01 (holding evidence that nonresident defendant's employees made 126 trips to Texas insufficient to establish general jurisdiction). Further, this Court has held contacts far greater than those present in this case to be insufficient. See Baldwin, 2017 WL 6043686, at *4 (holding evidence that nonresident defendant's employees traveled to Texas 60 times was insufficient to establish general jurisdiction); Brenham Oil & Gas, 472 S.W.3d at 759-60 (holding 39 trips to Texas by defendant's employees insufficient to establish general jurisdiction).
Again, a general jurisdiction inquiry is "very different from a specific jurisdiction inquiry" and involves a "more demanding minimum contacts analysis," with a "substantially higher threshold." PHC-Minden, 235 S.W.3d at 168 (internal quotations and citations omitted). General jurisdiction must be supported by a showing that the nonresident defendant's Texas contacts are "exceptional" and "so 'continuous and systematic' as to render them essentially at home" in Texas. See Daimler AG, 571 U.S. at 127, 133 n.11 (noting that defendant's contacts must be "exceptional" and "comparable to a domestic enterprise in that State"). In assessing the quality of the contacts, we do not view each contact in isolation; rather, we carefully analyze all contacts to determine if together they are sufficient to support general jurisdiction. See Coleman, 83 S.W.3d at 809; Reid, 130 S.W.3d at 216.
Here, as discussed above, the Devon Entities presented jurisdictional evidence negating that their contacts with Texas are "so 'continuous and systematic' as to render them essentially at home" in Texas. Moreno alleged, and the Devon Entities did not challenge, that the Devon Entities are authorized to do business in Texas and maintain a registered agent for service of process. Moreno's jurisdictional evidence shows that the Devon Entities, collectively, own a joint working interest with BPX in 100, 000 acres located in two counties in the Eagle Ford shale in South Texas; that BPX, and not the Devon Entities, is the "operator of all the drilling and completion operations"; and that the Devon Entities, in 2019, derived only 15 percent of their oil production and 7 percent of their oil reserves from their Eagle Ford interest. As discussed above, there is no other jurisdictional evidence meaningfully informing the analysis. We conclude that, in sum, the jurisdictional evidence does not support a finding that the Devon Entities' contacts with Texas are "so 'continuous and systematic' as to render them essentially at home." See Daimler AG, 571 U.S. at 127.
Further, after DEC and DEPCO presented evidence negating jurisdiction as to each entity, Moreno did not present any jurisdictional evidence specific to either entity. When a case involves multiple defendants, as here, the plaintiff must specify, and the court must examine, "each defendant's actions and contacts with the forum separately"; the defendants' contacts cannot be aggregated. See Morris v. Kohls-York, 164 S.W.3d 686, 693 (Tex. App.-Austin 2005, pet. dism'd); see also Calder v. Jones, 465 U.S. 783, 790 (1984). "The requirements of International Shoe . . . must be met as to each defendant over whom a state court exercises jurisdiction." Rush v. Savchuk, 444 U.S. 320, 331-32 (1980). "[O]nly the defendant's contacts with the forum . . . count." Michiana, 168 S.W.3d at 785.
We conclude that the jurisdictional evidence negates general jurisdiction as a basis for personal jurisdiction over either DEC or DEPCO.
Having concluded that the Devon Entities have negated all bases for an assertion of specific or general jurisdiction over them, we hold that the trial court erred in denying their special appearances. See Kelly, 301 S.W.3d at 658-59.
We sustain the Devon Entities' first and second issues.
Conclusion
We reverse the trial court's order denying DEC's and DEPCO's special appearances and render judgment dismissing Moreno's claims against them for lack of personal jurisdiction.