Document Sample
                                                                              IN THE SUPREME COURT
                                                                              OF TEXAS
                                                                              11 December 19 P2:52
                                                                               BLAKE. A. HAWTHORNE
                                      No. 11-0740

                         THE SUPREME COURT OF TEXAS





                                AND BURTON M. BARRETT


                        ON APPEAL FROM THE 9TH JUDICIAL


                      TRIAL COURT CAUSE NO. 09-12-11706-CV



Theo W. Pinson
State Bar No. 16018000
Law Offices of Theo W. Pinson
5850 San Felipe, Suite 410
Houston, Texas 77057
Telephone: (713)629-1860
Telecopier: (713)629-1862
Attorney for Respondents

                I.   TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………… ii

INDEX OF AUTHORITIES…………………………………………………iii

STATEMENT OF THE CASE……………………………………………….iv

STATEMENT OF FACTS……………………………………………………1

SUMMARY OF THE ARGUMENT…………………………………………3



                                    II.       INDEX OF AUTHORITIES


Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801 (Tex.2002)…….…..….7,9

BMC Software Belgium v. Marchand, 83 S.W.3d 789 (Tex. 2002). ………….....……7,8,9

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85
    L.Ed.2d 528 (1985)………………………………………………………….………..9

Capital Tech. Info. Serv. Inc. v. Arias & Arias, 270 S.W.3d 741
   (Tex.App.-Dallas 2008)…..............................................................................................8

Guardian Royal Exchange Assur., Ltd v. English China Clays, P.L.C, 815 S.W. 2d 223, 231
    (Tex. 1991)…………….……………………………………………………………………12

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)……..………...7

Internet Advertising Group, Inc. v. Accudata, Inc., 301 S.W.3d 383
    (Tex.App.-Dallas 2009)…………………………………………………………...10,11

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009)............7,8

Ring Power Sys. v. Int’l De Comercio Y Consultoria, S.A., 39 S.W.3d 350
    (Tex.App.-Houston (14th Dist.) 2001, no pet.)………………………………….…..10

3-D Elec. Co., Inc. v. Barnett Constr. Co., 706 S.W.2d 135 (Tex.App.-Dallas
   1986, writ ref’d n.r.e.)……………………………………………………………....9,10


Montgomery County (Tex.) Loc. R.-Electronic filing and Service of Pleadings…..……..4

                            III.    STATEMENT OF THE CASE

Respondents agree with Petitioners’ statement of the procedural history of the case.

                               IV.     STATEMENT OF FACTS

       This lawsuit involves claims against the respondents for alleged acts or omissions in

connection with repairs made to an aircraft engine owned by Petitioner Buckeye Aviation, LLC

and operated by Coats and Evans, P.C. Respondents agree generally with most of the facts

asserted in Petitioner’s Statement of Facts with the following statements and clarifications, as

some “facts” presented by Petitioners are their version of conflicting evidence and in some cases,

facts based on opinion evidence as to which there is no foundation.

        The relationship between Petitioners and Respondents had its inception in the solicitation

by Joe Washburn, a Texas aircraft mechanic, for a quote from Respondents for a quote for

overhaul of two aircraft engines (R 48). Following Washburn’s initial inquiry, (R 94)

Respondents responded with a quote and an agreement was reached. The overhauled engines

were shipped to Texas. Problems arose with one of the aircraft engines in late 2006, or a year

after the expiration of the proffered warranty by Barrett Performance Aircraft, Inc (R-98, R- 95-

96). Petitioners, through Texas Turbine, contacted Barrett Precision engines Inc., the engine was

repaired in Oklahoma at a discount, and Petitioners were charged a sum of $5,488.10 for these

repairs (R105-105). At this time the engine was disassembled, inspected, the cam shaft was

replaced and other repairs made, and the engine was returned to service.

       After the engine was returned to service on or about January 29, 2007, (R 69-70) the

airplane was flown throughout 2007 and 2008 and extending into 2009, and during this period of

time, the engine developed an oil leak (R-96).

       Petitioners current claims are based upon the oil leak, which they blame in their pleadings

upon improper assembly by Respondents following the repairs (R21-R26, R96) and these

allegations were supported by affidavits by Gary Lynn Evans(R-70), Joe Washburn (R-96), and

Ken Bacon (R 106-107). Objection to the affidavit evidence was duly made by Respondents,

pointing out that the opinions as to causation of the oil leak in the affidavit of Ken Bacon (R 106-

108) were without foundation as to his qualifications for such opinions as there were none stated

other then the fact that he worked under the supervision of an aircraft mechanic. Likewise,

objections to certain opinions in the affidavits of Joe Washburn and Gary Evans were made by

Respondents (R 112-113), thus Petitioners’ claims arise from repairs made by Respondents at the

end of 2006, for which this Court may find that there was no evidentiary basis.

       Apparently as a result of the oil leak, the still-airworthy Texas-based aircraft was flown

to Oklahoma, the engine was removed from the aircraft and disassembled by Mr. Bacon and

others on behalf of Petitioners (R 106).

                          V.      SUMMARY OF THE ARGUMENT

        The original Special Appearance filed by Respondents was self-evidently an electronic

copy of a verified document. The scanned copy of the original verification, with signatures and

notarial seal was submitted to the court (R 115), the original signed verification having been

maintained in Respondents’ counsel’s files as required by the Montgomery County local rules

governing such documents. The scanned verification was not an amendment to the Special

Appearance, but a demonstration that the Special Appearance was in fact verified at the time of

the electronic version’s filing, pursuant to applicable rules of Civil Procedure.

       The plain language of the Texas long arm statute is only the beginning of the inquiry as

to whether Respondents should be subject to the jurisdiction of Texas courts. The Texas long

arm statute authorizes the exercise of jurisdiction provided that it comports with federal and state

constitutional due process guarantees, including traditional notions of fair play and substantial

justice. Specific jurisdiction is lacking in this case due to the absence of any contacts with Texas

by Respondents which were not initiated by inquiries from Petitioners. All of the work on the

engines was performed in Oklahoma, including any warranty work, and payment was made in

Oklahoma by Petitioners. Any work giving rise to claims of breaches of warranty or improper

workmanship was done in Oklahoma. General jurisdiction is likewise lacking, as the only

contacts with Texas by Respondents in the whole record occurred in connection with the calls to

Oklahoma initiated by Petitioners’ agent, Joe Washburn. Respondents’ contacts with Texas have

been anything but continuous and systematic. The Court of Appeals correctly overruled

Petitioners’ contentions concerning the above issues and affirmed the judgment of the trial court.

                                  VI.    ARGUMENT


      Petitioners allege in their brief that Respondents’ Special Appearance was

ineffective because it was not verified. Petitioners, therefore, contend that Respondents

made a general appearance.       When Petitioners filed their “Plaintiffs’Response to

Defendants’ Special Appearance”, and raised this issue in the trial court (R 55),

Respondents replied that they filed their Special Appearance electronically and, although

the electronic version did not contain the signature of the notary, provided a copy of the

non-electronic version, scanned and attached to Respondents’ Reply. (R 111,115) The

relevant portions of the Montgomery County (Tex.) District Court Local Rules state as


      Except as expressly provided in Local Rule No. _D below, all pleadings,
      motions, memoranda of law, orders or other documents filed in any case
      assigned to the EFILE electronic filing system shall, to the extent
      practicable, be filed and served electronically through the system.

      DOCUMENTS – Unless specifically ordered by the Court, original
      signature pages on affidavits, verification or other sworn documents in
      cases assigned to EFILE shall not be filed in paper form, but shall be
      maintained and made available, upon reasonable notice and during
      business hours, to other counsel and to the Court.

As they demonstrated, and in accordance with the Montgomery County District Court

 Local Rules, Respondents electronically filed their Special Appearance and maintained

the signature page of the verification. (R-115) Indeed, Respondents were never required

to electronically file the paper or the scanned form of the signed verification.

       Clearly, this commonsensical local rule is designed to make electronic filing work

smoothly and eliminate extra electronic “paperwork”, just as Courts no longer require

various discovery materials to be filed. The Rule likewise requires the original signature

pages to be made available to Court and counsel. The record reflects no effort by counsel

for Petitioners to request of either the Court or of counsel that the original signature page

be made available to them for review.

       Petitioners in their argument suggest that the scanned signature page (R 115)

constituted an out-of-time amendment of Respondents’ Special Appearance to cure a lack

of verification.   There was no amendment and no amendment was necessary. The

electronic copy put Petitioners on notice of the identity of the Notary, even though there

was no seal. Therefore, Respondents’ Special Appearance was not defective, but was

effective and meritorious, as the trial court and the Court of Appeals found. Respondents

were not only not required to do more; they were affirmatively required to do what they

did by the Local Rules. Petitioners in their Petition make no mention of these Local

Rules governing electronic filings where verifications are involved.

1. Contacts with Texas

       As found by the Court of Appeals, the initial contact with Respondents was made by Joe

Washburn, Petitioners’ agent, and Barrett’s letters (R 73) commencing Dec.12, 2003 were not

solicitations but responses to Washburn’s inquiries. The Dec. 12 letter thanks Washburn for the

“opportunity,” clearly responsive in nature. Other than the work performed in this matter, the

record contains no evidence of direct solicitation of Texas residents or work performed in Texas.

Respondents maintain no offices in Texas. All invoices originate from Oklahoma. Barrett

affidavit .(R 47)

       In this case, after a contract was agreed upon, the engine was overhauled in Oklahoma

and shipped back to Texas. When Petitioners experienced difficulties with one of the engines,

they contacted Respondents and the engine was shipped to Oklahoma, disassembled, repairs

made and was shipped back to Texas. As the engine was out of warranty, a negotiated price took

place. In this instance, all contacts were likewise initiated by Petitioners.

       Respondent BPE admittedly maintained a website on the internet, providing general

advertising and product information and a facility whereby a visitor to the site may leave contact

information. The site also has a link that would appear to allow a potential customer to inquire

about the availability of a particular engine and receive a price quote. There is no evidence in the

record indicating the website was ever used by Petitioners or their agents or that they were aware

of it at the time of their dealings with Respondents. There is no evidence that the various

interactive features were operative.

2. Specific Jurisdiction

       A nonresident's contacts can give rise to either specific or general jurisdiction.

Retamco Operating, Inc v. Republic Drilling Co., 278 S. W. 3d 333, 338 (Tex. 2009).

Specific jurisdiction lies when the defendant's alleged liability arises from or is related to

those contacts or activities. Id. The analysis focuses on the relationship among the

defendant, the forum, and the litigation. Id. General jurisdiction will attach if the

defendant's contacts with the forum are continuous and systematic, whether or not the

defendant alleged liability arising from those contacts.        BMC Software Belgium v.

Marchand, 83 S.W.3d 789 (Tex. 2002). Under either a specific or general jurisdictional

analysis, the relevant contacts are those through which a defendant “purposefully avails

itself of the privilege of conducting activities within the forum state, thus invoking the

benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct.

1228, 2 L.Ed.2d 1283 (1958); Retamco, 278 S.W.3d at 338. In determining purposeful

availment, we consider three issues. First, only the defendant's contacts with the forum

are relevant, not the unilateral activity of another party or third person. Retamco, 278

S.W.3d at 339. Second, the contacts must be purposeful rather than random, fortuitous,

or attenuated. Id. Third, the defendant must seek some benefit, advantage, or profit by

availing itself of the jurisdiction. Id. The purpose of a minimum contacts analysis is to

protect a nonresident defendant from being hauled into court when its relationship with

the forum state is too attenuated to support jurisdiction. Am. Type Culture Collection,

Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002). What is important is the quality and

nature of the defendant's contacts with the forum state rather than their number.

Retamco, 278 S.W.3d at 339. Only if “minimum contacts” are established does the court

consider the second prong-whether maintenance of the action offends traditional notions

of fair play and substantial justice.

       Importantly, 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, 83 S.W.3d at 793; Capital Tech. Info. Servs., Inc. v. Arias & Arias, 270

S.W.3d 741, 748 (Tex.App.-Dallas 2008). Petitioners state repeatedly that the contract

for the repairs has never been denied by Respondents. True, Respondents have never

denied a contract to overhaul the engines. The Court of Appeals conducted a lengthy

analysis of Petitioner’s contract claims, concluding that they were based upon the oil leak

which was allegedly caused by improper assembly of the engine in 2006. In this set of

circumstances, Petitioners’ causes of action were disputed by Respondents. Petitioners’

improper assembly allegations were entirely based upon opinions by persons whose

ability to express such opinions nowhere appears in the record, and which was duly

objected to by Respondents. (R 112-113). In the repair transaction of 2006, Petitioners

shipped the engine to Oklahoma and the engine was shipped from Oklahoma back to

Texas after repairs were made. Respondents have never denied the 2006 repair

agreement.      This Court should find that Petitioners failed to demonstrate any of their

causes of action, as no credible connection was made between the 2006-07 repairs and

the oil leak.

       In any event, merely contracting with a Texas resident does not satisfy the

minimum contacts requirement. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478,

105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). To evaluate purposeful availment, we look to

such factors as prior negotiations, contemplated future consequences, terms of the

contract and the parties' actual course of dealing to determine whether the defendant

purposefully established minimum contacts with the forum. Id. at 479. Contracting with

a Texas resident is the beginning, rather than the end, of the inquiry. American Type

Culture Collection, Inc. v. Coleman, 26 S.W.3d 37, 43-44 (Tex.App.-Houston (1st Dist)

2000, pet. granted). For jurisdiction to attach, the contacts cannot be random, fortuitous

or attenuated contacts, or contacts due to the acts of another, the latter of which describes

Respondents’ contacts. BMC Software Belgium v. Marchand, 83 S.W.3d 789,795 (Tex.

2002). Thus, Respondents should have had contacts with Texas such that they might be

said to have invoked the protection of Texas laws, and might reasonably expect to find

himself in a Texas Court. To say that Respondents had such an expectation, based on

their contacts with Texas, is to say that surgeons in the Texas Medical Center who

contract for surgery upon out of state patients can expect to be haled into any number of

out of state jurisdictions based on various theories of tort and contract.

       While a single contact can theoretically support jurisdiction, Burger King Corp. v.

Rudzewicz, supra, cases with patterns of contacts similar to the instant case have declined

to find jurisdiction. In 3-D Elec. Co., Inc. v. Barnett Constr. Co., 706 S.W.2d 135

(Tex.App.-Dallas 1986, writ ref’d n.r.e.) a third party contacted the Texas Plaintiff

concerning electrical work to be done on a motel being built in Colorado. Id. at 237. The

Tennessee defendant, a general contractor, followed up by calling and sending building

plans to the Texas Plaintiff. The Texas Plaintiff traveled to Tennessee and formed a

contract with the Tennessee defendant.       The court noted that the oral contract was

initiated by the third party’s calls to Texas, followed by the defendant’s calls and faxes to

Texas. Id. at 141, 142. The court also noted that some of the preliminary design work

was done in Texas. The court nevertheless held that all these Texas contacts by the

Defendant, i.e., a contract, price negotiations by phone, were insufficient to establish

specific jurisdiction over the Tennessee defendant where the work was done in Colorado.

Although, as in the case at bar, the contacts were purposeful in a superficial way, the

contacts were deemed insufficient. While purposeful contact with the forum state is an

important component of minimum contacts analysis, courts will also look to whether

there is a substantial connection with the non resident defendant and the forum state

arising from such contacts. Ring Power Sys. v. Int’l De Comercio Y Consultoria, S.A., 39

S.W.3d 350, 354 (Tex.App.-Houston (14th Dist.) 2001, no pet.).

       In Internet Advertising Group, Inc. v. Accudata, Inc., the Court of Appeals

reversed the trial court’s denial of the defendant’s special appearance. 301 S.W.3d 383

Tex.App.-Dallas 2009). In doing so, the Court notes that Internet Advertising Group,

Inc. (“IAG”) did not reach beyond its state’s borders to solicit business from Accudata,

but, rather, it was Accudata that solicited IAG’s business in Florida. Id. at 389. The

Court also noted that the contract did not require that it be performed in Texas and,

therefore, IAG did not purposefully avail itself of the benefits of Texas. Id. Moreover,

the Court was not persuaded by the fact that IAG transmitted payments to Accudata in

Texas because, inter alia, the contract did not require that payments be made to Texas

and the place of payment is the domicile of the payor. Id.

       As in Internet Advertising Group, Inc., the facts here do not support the exercise

of jurisdiction. In this case, Barrett and BPA were initially contacted by a third party in

Texas, Washburn, who was looking for and solicited a quote for two overhauled engines

for an aircraft owned by Plaintiffs. (R-94) Respondents did not make the initial contact

with a Texas resident. In response to the Washburn solicitation, two quotes were given,

the second of which was accepted.            Furthermore, the engines at issue were

remanufactured in Oklahoma, not Texas, and then shipped to Washburn for installation.

(Washburn affidavit, Par. 4, R-95) After one of the engines encountered problems in late

2006, Appellants initiated contacts with BPE and Petitioners shipped the engine to BPE,

in Tulsa, Oklahoma for repairs. (R-95) Payments were made to Respondent BPE in

Oklahoma. (R 69,70,82) Additionally, in 2009, when the same engine developed an oil

leak, Petitioners flew the aircraft to Tulsa, Oklahoma, where the engine was disassembled

by others. (Bacon Affidavit, R-106)

        In connection with the BPE repairs in 2007, it is evident that Petitioners initiated

the contacts with Respondent BPE in Oklahoma Petitioners shipped their engine to

Oklahoma, Petitioners sent payment to Respondent in Oklahoma, and the engine was

returned to Texas (R-82-83). Respondents did not purposely avail themselves of the

benefit of doing business in Texas. Indeed, it is Appellants who purposely availed

themselves of doing business in Oklahoma, where this case belongs. Therefore, the

exercise of jurisdiction would violate Respondents’ due process rights.

3. Traditional Notions of Fair Play and Substantial Justice

       In making a determination of whether personal jurisdiction over a nonresident

comports with traditional notions of fair play and substantial justice, five factors are

considered by the court: the Defendant’s burden; the interest of the forum state; the

Plaintiff’s interest in convenient and effective relief; the interstate Judicial System’s

interest in efficient resolution of controversies; and the shared interests of the several

states in furthering fundamental sensitive social policies. Guardian Royal Exchange

Assur., Ltd v. English China Clays, P.L.C, 815 S.W. 2d 223, 231 (Tex. 1991)

         In the event the respondents were compelled to litigate in Texas, their burdens

would be substantial compared to the Plaintiffs’. No one in Texas was able to determine

the cause of the oil leak which gave rise to these claims. Washburn stated that the source

of the leak problem was difficult to determine (R 96, Par. 7). The personnel employed by

Respondents in 2006-2007 and who observed the teardown of the engine in 2009 work in

 Oklahoma will have more information and opinions. Presumably, all of the personnel

    working for Petitioners who conducted the teardown in 2009 may have opinions

  concerning the origins of the oil leak. In all probability, most all of the potential trial

witnesses reside and work in Oklahoma. The record shows that Petitioners through their

  agents had invited Respondents to a teardown of the engine in Tulsa on December 8,

2009, after the Petitioners had brought the aircraft powered by that engine to Tulsa from

Texas. (Barrett Affidavit, R-48; Affidavit of Ken Bacon, R-106.) The Defendants, of

course, had no way of knowing that Plaintiffs, while purporting to be investigating the

cause of the engine’s oil leak in Tulsa, had already filed suit back in Texas on December

7, 2009. See Clerks’ Index, item 3, Plaintiffs’ Original Petition, Request For Disclosure,

and Demand For Trial By Jury. (R 3-19)

      In addition, if Respondents’ Special Appearance were not granted, Petitioners

would enjoy a special “home town” advantage by virtue of being able to represent

themselves, whereas Defendants would have to hire their own counsel, which they did.

The outcome of a denial of the Special Appearance would be to create a decidedly

unlevel playing field under the unique circumstances of this case. While Petitioners

sought the help of other repairmen in Oklahoma to fix their engine’s oil leak, they chose

to litigate in Texas, where the deck was stacked against Respondents if costs are

considered.   Compared to the burden upon Petitioners, although all litigation is

burdensome, Respondents have a substantially greater burden then the Petitioners here.

      The interests of the forum state, i.e. Texas is minimal. In an isolated incident, a

Texas Plaintiff solicited goods from an Oklahoma resident approximately 400 miles

distant, the goods were shipped to Houston at the insistence of the Texas buyer. When

problems occurred with the goods, the Texas resident returned the goods to Oklahoma for

repairs, and then when an oil leak developed, the Texas resident again sent the goods to

Oklahoma. The interest of the Texas forum might be greater had this case been one of a

manufacturer depositing large quantities of goods in Texas without any recourse to any

repair facility other than in Texas.

       The Petitioners’ interest in obtaining effective relief is substantial, but, as

mentioned in the discussion of the Defendants’ burdens, all of the witnesses, or almost all

of the witnesses as to the causation of the oil leak are present in Oklahoma. The oft-

mentioned website of Respondents plays no part in evaluating Petitioners’ interest, as it

played no part in the events giving rise to this dispute.

                                       VII.   PRAYER

       For all of the reasons advanced above, Respondents request that Petitioners’

petition be denied and the decisions in the courts below granting Respondents’ Special

Appearance be affirmed in all respects.

                                                    Respectfully submitted,

                                                    LAW OFFICES OF THEO W. PINSON
                                                       By:__/s/__Theo W. Pinson____________
                                                                 Theo W. Pinson
                                                                 State Bar No. 16018000
                                                                  5850 San Felipe, Suite 410
                                                                  Houston, Texas 77057
                                                                   (713)629-1862 fax
                                                      ATTORNEYS FOR RESPONDENTS
                                                      BARRETT PERFORMANCE
                                                      AIRCRAFT, INC., BARRETT
                                                      PRECISION ENGINES, INC., AND
                                                      BURTON M. BARRETT

                                CERTIFICATE OF SERVICE

        I certify that pursuant to Rule 21a of the Texas Rules of Civil/Appellate Procedure a true
and correct copy of the foregoing instrument has been delivered to all counsel of record by U.S.
First Class Mail, certified mail, return receipt requested and/or messenger, and/or hand delivery
and/or facsimile transmission on the 19th day of December, 2011.

Gary Linn Evans                                      VIA FACSIMILE (281)367-8003
George Andrew Coats
Coats & Evans, P.C.
P.O. Box 130246
The Woodlands, Texas 77393
Phone: (281) 367-7732
Fax: (281)367-8003


                                                       By:__/s/__Theo W. Pinson____________
                                                                 Theo W. Pinson