Proppant Solutions, LLC v. Emma Delgado

Opinion issued July 14, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00800-CV
———————————
PROPPANT SOLUTIONS, LLC, Appellant
V.
EMMA DELGADO, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2014-17992

OPINION

This is a personal jurisdiction case. Proppant Solutions, a California limited

liability company, partnered with ChristDel, a Tennessee corporation, to provide

oilfield proppant to EOG, a Texas oil company. After Proppant Solutions and

ChristDel completed the contract, Proppant Solutions filed this lawsuit claiming
that ChristDel breached the partnership agreement, breached its fiduciary duty as a

partner, and committed fraud. It also claimed that the three siblings who owned

ChristDel, including Tennessee resident Emma Delgado, participated in

ChristDel’s breach of fiduciary duty, made fraudulent misrepresentations, and

conspired to accomplish the fraud.

Emma filed a special appearance challenging the trial court’s exercise of

personal jurisdiction over her because she is a Tennessee resident, has no contacts

with Texas outside of her business, and is not alleged in the petition to have

committed a tort in Texas. Proppant Solutions responded that Texas has specific

jurisdiction over Emma because of her involvement in the creation and

performance of the contract between ChristDel and Proppant Solutions. The trial

court granted Emma’s special appearance, and Proppant Solutions timely appealed.

We affirm.

Background

This lawsuit arises from a contract between two businesses, Proppant

Solutions and ChristDel. Proppant Solutions is a California limited liability

company with its principal place of business in California. ChristDel is a

Tennessee Corporation with its principal place of business in Tennessee.

Joseph Brown formed Proppant Solutions when, according to his affidavit,

he “began looking into the business of selling oilfield proppant.” Proppant

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Solutions obtained a contract to provide oilfield proppant1 to EOG facilities in

Pleasanton, Texas. It planned to buy the proppant from China but needed a way to

ship it to the United States. According to its petition, Proppant Solutions’ majority

owner, Brown, discovered ChristDel online. On its website, ChristDel represented

that it “had extensive experience as a logistics supplier of proppant.” Brown

contacted ChristDel’s corporate officers, including Emma; they told Brown that

ChristDel “had extensive experience . . . moving large shipments of proppant from

China to the U.S.A.” They also represented that ChristDel “had fixed logistics

contracts in place” for most of the shipping expenses and that with some variable

expenses the total cost was “just over 15 cents per pound of proppant.” Proppant

Solutions offered—and ChristDel agreed—to fulfill the contract with EOG as a

partnership, splitting the profits. As part of the partnership agreement, Proppant

Solutions agreed to pay ChristDel the amount of the base costs, i.e., 15 cents per

pound.

According to the petition, these representations were false. Proppant

Solutions alleged that it would not have offered to complete the EOG contract with

ChristDel as a partnership but for these representations. Brown relied on ChristDel

1
According to the petition, “[p]roppant is a solid material, typically treated sand or
man-made ceramic materials, designed to keep an induced hydraulic fracture open,
during or following a fracture treatment.”
3
because he “had no prior experience in buying, selling, or shipping proppant in the

oilfield industry.”

The petition alleged that ChristDel shipped millions of dollars of proppant

from China to EOG in Texas over 18 months. ChristDel, acting through Emma,

invoiced Proppant Solutions monthly. The invoices did not disclose ChristDel’s

costs, allegedly to “hide ChristDel’s prior misrepresentations.” Over the course of

the contract, Proppant Solutions paid ChristDel over $50 million in expenses and

$6 million in shared partnership profits. After the contract was completed,

ChristDel refused to provide an accounting of its costs.

The petition identified four specific misrepresentations by Emma:

(1) “Defendants had extensive experience in providing the logistics to move large

shipments of proppant from China to Houston,” (2) “Defendants had fixed logistics

contracts in place and . . .the only variables were trucking fuel surcharges and

demurrage,” (3) “Defendants calculated their actual costs . . . [were] just over

$0.15/pound of proppant,” and (4) “the parties would share the profits 60/40.”

Proppant Solutions further alleged that Emma and the other individual defendants

used ChristDel “for the purpose of perpetrating” a fraud.

All defendants appeared except Emma. Emma filed a special appearance

stating that she is a Tennessee resident with no ties to Texas outside of her

business, she is a director of ChristDel, she had no conversations with Proppant

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Solutions regarding the matters in the lawsuit in her personal capacity, and all of

her communications with Proppant Solutions occurred while she was in Tennessee.

During her one trip to Texas in connection with the contract, she met with EOG,

not Proppant Solutions.

In response to Emma’s special appearance, Proppant Solutions filed an

affidavit signed by its majority owner, Brown. In addition to supporting many of

the factual allegations in the petition, Brown stated that after he discovered

ChristDel’s website he called and talked with Juan, Marcus, and Emma Delgado,

who misrepresented ChristDel’s experience. Contrary to these representations,

ChristDel “had little or no experience in the logistics of moving proppant from

China to the U.S.A.” Therefore, ChristDel secretly hired a third party to perform

many of its contractual obligations in return for a portion of its profits.

Brown claimed that he communicated with Emma “numerous times by

email and telephone calls,” although he never claimed that the communications

between he and Emma were transmitted to or from Texas. With respect to the

claim that ChristDel hid its costs, Brown averred that, because of her financial

positon with ChristDel, Emma “had to be personally aware of . . . this fact.”

Proppant Solutions filed a second affidavit by its co-owner, Michael Hall.

Hall, who had primary responsibility for the company’s financial matters, stated

that he worked primarily out of his home in Texas and dealt directly with Emma

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regarding “finance and billing.” She communicated with Hall by email and

telephone from her office in Tennessee. Emma sent him invoices for ChristDel’s

expenses. One expense item was a visit to Texas by Emma to meet with EOG

officials and tour their Pleasanton facility. Finally, Hall stated that Emma also sent

him documentation regarding the movement of proppant into the Port of Houston

and then to Pleasanton.

Proppant Solutions filed a third affidavit signed by Ronald Cope, the

principal shareholder of the Houston-based company that assisted ChristDel with

shipping the proppant. Cope averred that he had estimated ChristDel’s shipping

cost at only 10 cents per pound, but ChristDel marked up the cost to over 15 cents

per pound to increase its profits.

The trial court granted Emma’s special appearance without issuing any

findings of fact or conclusions of law. Proppant Solutions timely appealed.

Standard of Review

“Whether a court has personal jurisdiction over a nonresident defendant is a

question of law, which we review de novo.” Zinc Nacional, S.A. v. Bouche

Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010) (citing BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). When, as here, the trial court did

not make findings of fact or conclusions of law, we infer all findings necessary to

support the trial court’s ruling. Moki Mac River Expeditions v. Drugg, 221 S.W.3d

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569, 574 (Tex. 2007); Stull v. LaPlant, 411 S.W.3d 129, 133 (Tex. App.—Dallas

2013, no pet.).

Jurisdictional Pleading Requirements

In a special appearance, the parties bear shifting burdens. “[T]he plaintiff

bears the initial burden to plead sufficient allegations to bring the nonresident

defendant within the reach of Texas’s long-arm statute.” Kelly v. Gen. Interior

Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). A plaintiff may carry its initial

pleading burden in its petition or response to the defendant’s special appearance.

Stull, 411 S.W.3d at 134; Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15,

23 (Tex. App.—Houston [1st Dist.] 2010, no pet.). If, however, “the plaintiff fails

to plead facts bringing the defendant within reach of the long-arm statute (i.e., for a

tort claim, that the defendant committed tortious acts in Texas), the defendant need

only prove that it does not live in Texas to negate jurisdiction.” Kelly, 301 S.W.3d

at 658–59.

“Once the plaintiff has pleaded sufficient jurisdictional allegations, the

defendant filing a special appearance bears the burden to negate all bases of

personal jurisdiction alleged by the plaintiff.” Id. at 658. “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. The

defendant can negate jurisdiction on either a factual or legal basis. Id. at 659. A

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defendant negates jurisdiction on a factual basis by presenting evidence showing

an absence of contacts with Texas, thus disproving the plaintiff’s jurisdictional

allegations. Stull, 411 S.W.3d at 134 (citing Kelly, 301 S.W.3d at 659). A

defendant negates the legal basis for jurisdiction by showing that “if the plaintiff’s

alleged facts are true, the evidence is legally insufficient to establish jurisdiction;

the defendant’s contacts . . . fall short of purposeful availment; . . . the claims do

not arise from the contacts; or . . . traditional notions of fair play and substantial

justice are offended by the exercise of jurisdiction.” Kelly, 301 S.W.3d at 659.

If the nonresident defendant produces evidence negating personal

jurisdiction, the burden returns to the plaintiff to show that the court has personal

jurisdiction over the nonresident defendant. Stull, 411 S.W.3d at 134. A court

should dismiss a lawsuit against a nonresident defendant if the exercise of personal

jurisdiction lacks an adequate factual or legal basis. Id.

Requirements for Personal Jurisdiction

“Texas courts have personal jurisdiction over a nonresident defendant when

(1) the Texas long-arm statute provides for it, and (2) the exercise of jurisdiction is

consistent with federal and state due process guarantees.” Spir Star AG v. Kimich,

310 S.W.3d 868, 872 (Tex. 2010).

The Texas long-arm statute authorizes Texas courts to exercise personal

jurisdiction over anyone “doing business” in Texas. TEX. CIV. PRAC. & REM. CODE

8
ANN. § 17.042 (West 2015). “The broad language of the long-arm statute’s ‘doing

business’ requirement permits the statute to reach as far as the federal

constitutional requirements of due process will allow.” Guardian Royal Exch.

Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).

Consequently, the statute’s requirements are satisfied if exercising jurisdiction

comports with federal due process limitations. Spir Star, 310 S.W.3d at 872.

Due process is satisfied “when two conditions are met: (1) the defendant has

established ‘minimum contacts’ with the forum state, and (2) the exercise of

jurisdiction comports with ‘traditional notions of fair play and substantial justice.’”

Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 210 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied). Depending upon the nature of a nonresident’s contacts,

personal jurisdiction may be general or specific. Moncrief Oil Int’l, Inc. v. OAO

Gazprom, 414 S.W.3d 142, 150 (Tex. 2013).

Specific Jurisdiction

Proppant Solutions asserts that Delgado is subject to specific personal

jurisdiction. “Specific jurisdiction . . . arises when (1) the defendant purposefully

avails itself of conducting activities in the forum state, and (2) the cause of action

arises from or is related to those contacts or activities.” Retamco Operating Inc. v.

Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009); see also Moki Mac, 221

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S.W.3d at 576, 579 (specific jurisdiction requires satisfaction of “two co-equal

components”).

A. Purposeful availment

The first prong of specific jurisdiction, purposeful availment, is the

“touchstone of jurisdictional due process.” Michiana Easy Livin’ Country, Inc. v.

Holten, 168 S.W.3d 777, 784 (Tex. 2005). To determine whether a defendant has

purposefully availed herself to the benefits of Texas law, we consider (1) the

defendant’s own actions but not the unilateral activity of another party, (2) whether

the defendant’s actions were purposeful rather than “random, isolated, or

fortuitous,” and (3) whether the defendant sought “some benefit, advantage, or

profit by ‘availing’ itself of the jurisdiction.” Id. at 785. “The purposeful availment

test should focus on ‘the defendant’s efforts to avail itself of the forum’ and not

‘the form of action chosen by the plaintiff.’” Touradji, 316 S.W.3d at 24 (quoting

Moki Mac, 221 S.W.3d at 576); see Michiana, 168 S.W.3d at 789–90 (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 2183 (1985))

(for determining personal jurisdiction, “it is ‘the defendant’s conduct and

connection with the forum’ that are critical”).

B. Relatedness

The second prong, relatedness, analyzes the relationship between the

defendant, the forum, and the litigation. IRA Res., Inc. v. Griego, 221 S.W.3d 592,

10
596 (Tex. 2007); Moki Mac, 221 S.W.3d at 576. Generally, courts analyze the

relationship between jurisdictional contacts and each claim separately. Moncrief,

414 S.W.3d at 150. However, “a court need not assess contacts on a claim-by-

claim basis if all claims arise from the same forum contacts.” Id. at 150–51.

Pleadings and Evidence Before the Trial Court

Proppant Solutions asserts that Emma has sufficient minimum contacts with

Texas because she: (1) “participated in negotiating the relationship between

ChristDel and Proppant Solutions as they prepared to do business in Texas,” (2)

“personally participated in organizing the delivery and receipt [of the oilfield

proppant] from China through the Port of Houston, and onto Pleasanton, Texas,”

(3) “sent and received e-mails to and from Texas billing for the logistic services

and the expenses [of transporting the proppant],” and (4) “traveled to Texas to

personally review the logistics operation.”

A. Emma’s role in forming the relationship between ChristDel and
Proppant Solutions is not personal availment

Emma’s role in the formation of the relationship between ChristDel and

Proppant Solutions—her response to Proppant Solutions’ inquiry allegedly

misrepresenting ChristDel’s capabilities and experience—was not a purposeful

contact with Texas for three reasons. First, the choice of Texas as the delivery

point was, for Emma, entirely fortuitous. Second, nonresident agents of

11
nonresident businesses negotiated the contract outside of Texas. Third, Proppant

Solutions never alleged that Emma actually participated in those negotiations.

1. Proppant Solutions’ prior relationship with EOG is fortuitous

The mere fact that Emma’s response to Proppant Solutions’ inquiry led to a

business agreement to fulfill Proppant Solutions’ preexisting contract with EOG in

Texas is not, by itself, enough to show purposeful availment. “Sellers who ‘reach

out beyond one state and create continuing relationships and obligations with

citizens of another state’ are subject to the jurisdiction of the latter . . . . By

contrast, a defendant will not be haled into a jurisdiction solely based on contacts

that are ‘random, isolated, or fortuitous.’” Michiana, 168 S.W.3d at 785.

In Michiana, a Texas plaintiff, Holten, contacted Michiana, a factory outlet

for Coachmen RVs. Based on his conversations with the company, Holten

purchased an RV. At Holten’s request and expense, Michiana shipped the RV to

Texas. Id. at 784. Holten subsequently sued Michiana in Texas for fraudulent

misrepresentations made during Holten’s telephone conversation with Michiana,

for breach of contract, and for statutory claims. Id. at 781, 788–92.

The Court concluded that Michiana had no purposeful contacts with Texas.

Michiana never solicited Holten’s business. It never marketed itself in Texas nor

made any attempt to enter the Texas RV market. Michiana’s contact with Texas

arose solely because a Texas resident decided to buy an RV from it. Had Holten

12
not been a Texan, Michiana would have had no contact with Texas. Id. at 785–87.

This contact with Texas was fortuitous because it arose from Holten’s actions, not

Michiana’s. See id at 786.

“[T]he mere sale of a product to a Texas resident will not generally suffice

to confer specific jurisdiction upon our courts. Instead, the facts alleged must

indicate that the seller intended to serve the Texas market.” Moki Mac, 221 S.W.3d

at 577. In Moki Mac, Texas plaintiffs sued Moki Mac, a Utah river-rafting

expedition company, in Texas for the wrongful death of their son during a rafting

expedition in Arizona. The Court noted, “Unlike in Michiana, the

evidence . . . indicates that Moki Mac does intend to serve the Texas market.” Id.

Moki Mac regularly sold rafting trips to Texas residents. It sent targeted mailings

to Texas residents, advertised in Texas newspapers and national publications with

Texas subscribers, ran mass and targeted direct-marketing e-mail campaigns to

solicit Texas clients, worked with Texas residents to solicit Texas business, and

offered Texas residents various incentives to sign up for an expedition. Id. at 577–

78. “Moki Mac’s contacts with Texas did not result, as did the defendant’s in

Michiana, from the mere fortuity that the [plaintiffs] happened to reside here.

Rather, the contacts it had with Texas resulted from additional conduct through

which it aimed to get extensive business in or from this state.” Id. at 578.

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 In a commercial dispute, the unilateral activities of others will not support

specific jurisdiction over a defendant. Parex Res., Inc. v. ERG Res., LLC, 427

S.W.3d 407, 422 (Tex. App.—Houston [14th Dist.] 2014, pet. filed). In Parex, a

Texas company, ERG, sought to buy shares of a Columbian oil and gas interest

from Nabors, a Bermudan company with a Houston office. Id. at 412. During these

negotiations, Nabors solicited other bidders from the Royal Bank of Canada, which

in turn solicited a bid from Parex Canada, a Canadian company. Id. at 413. Parex

began communicating with Nabor’s Houston office about the shares. Id. at 414.

Shortly thereafter, ERG and Nabors entered into a contract to sell the shares; when

that deal failed to close, Parex re-submitted its bid. Id.

ERG sued Nabors and Parex for specific performance of its contract and for

tortious interference of contract. But the Fourteenth Court of Appeals found that

Texas did not have special jurisdiction over Parex. “Parex Canada’s initial contact

with Nabors . . . was solicited by Nabors and did not stem from Parex Canada’s

unsolicited decision to reach into Texas. Accordingly, Parex Canada’s decision to

engage in negotiations with a Texas company . . . was fortuitous and based on

Nabors’s unilateral activities.” Id. at 421. The court noted that even after Parex

began actively competing with ERG, “Parex Canada’s decision to reach into Texas

via these contacts was certainly less purposeful than if Parex Canada was

independently seeking out a Texas seller without initial prompting from Nabors.”

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Id. at 422. “Moreover, the fact that Texas-based ERG was now part of the equation

was based on Nabors’s unilateral decision to contract with ERG, not any Parex

Canada decision.” Id. Accordingly, Parex’s offer did “not support substantial

Texas availment.” Id.

This case is more like Michiana and Parex than Moki Mac. Here, there is no

evidence that ChristDel or Emma have ever attempted to market themselves to

Texas or serve the Texas market. Emma, in particular, had no self-initiated

contacts with Texas. Her only contacts with Texas were, much like in Michiana

and Parex, because a customer with ties to Texas contacted her Tennessee

employer. Importantly, Proppant Solutions actively recruited ChristDel and its

personnel, not vice versa. Proppant Solutions agreed to provide oilfield proppant to

EOG in Texas. Proppant Solutions then sought out ChristDel to help perform this

task. Proppant Solutions offered to fulfill the contract2 with ChristDel and split the

profits.

The dissent contends that, by relying on Michiana and Moki Mac, we “fail to

recognize the distinction between establishing personal jurisdiction over a

defendant in a stream of commerce case and establishing personal jurisdiction over

a defendant in a fraud and fraudulent inducement case brought with respect to the

negotiation and performance of a contract.” But Michiana was a fraud case.

2
The contract contains a Texas choice-of-law provision and a Houston forum-
selection clause—but Emma was not a party to the contract.
15
Michiana, 168 S.W.3d at 788, 791. Personal jurisdiction is established by contacts,

not culpability. Id. As Parex indicates, the underlying reasoning of Michiana and

Moki Mac—that a defendant must purposefully reach out to Texas—is not limited

to the typical stream of commerce context. Moreover, “jurisdictional analysis

always centers on the defendant’s actions and choices to enter the forum state and

conduct business.” Kelly, 301 S.W.3d at 660. It was Proppant Solutions, not

Emma, who chose for the product to be delivered in Texas.

2. Nonresidents negotiated the contract outside of Texas

The contract was negotiated outside of Texas by nonresidents on behalf of

two nonresident businesses. And Emma is not a party to the contract. Thus any

connection to Texas from these negotiations or from the written contract alone

would be “even less purposeful and more attenuated.” See Peredo v. M. Holland

Co., 310 S.W.3d 468, 475 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (third

party’s Texas contacts, which resulted from a contract between two nonresidents,

did not satisfy minimum-contacts requirement).

3. Emma’s involvement in the formation of the contract was limited

The alleged scope of Emma’s involvement in the formation of the business

relationship is small, and the extent of Emma’s knowledge regarding Proppant

Solutions’ relationship to Texas when she spoke to Brown is unclear. The petition

simply says: “ChristDel’s owners, Juan, Marc, and Emma Delgado each later

16
verified [statements on ChristDel’s website] that . . . ChristDel had extensive

experience in providing logistics and moving large shipments of proppant.”

According to Brown’s affidavit, this representation was made before Proppant

Solutions proposed to fulfill the EOG contract as a partnership. There is no

allegation and no evidence regarding whether Emma participated in negotiating the

partnership agreement between Proppant Solutions and ChristDel or whether she

knew of Proppant Solutions’ connection to EOG in Texas when she spoke to

Brown.

Thus, Emma did not purposefully direct her activities toward Texas by

responding to Brown’s inquiries regarding ChristDel’s experience shipping

proppant. Rather, Proppant Solutions unilaterally responded to representations by

Emma and other ChristDel associates by seeking ChristDel’s assistance to fulfill

Proppant Solutions’ preexisting obligations to EOG. From Emma’s perspective,

that Proppant Solutions had previously contracted with an EOG facility in Texas,

instead of any other state, was merely fortuitous.

B. That Emma communicated with an off-site employee working from a
home office in Houston, instead of Proppant Solutions’ California
headquarters, was merely fortuitous

For similar reasons, Emma’s communications with Michael Hall in Houston

also do not constitute a purposeful contact with Texas.

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 According to his affidavit, Hall “was responsible for handling the financial

aspects of the partnership agreement between Proppant Solutions and ChristDel.”

Emma “handled finance and billing for ChristDel.” “Each month . . . I received an

invoice for the logistics of shipping the proppant from Emma. She also periodically

sent me invoices for ChristDel’s expenses . . . .”

It was Emma’s responsibility to send these communications to her

counterpart at Proppant Solutions—Michael Hall. These were business

communications between a two businesses registered and headquartered outside of

Texas. The record does not contain any evidence that Emma actively sought to

work with an off-site employee in Texas instead of Proppant Solutions’ California

headquarters or that she sought any benefit of Texas law thereby. The record

indicates that Hall worked from a home office in Houston. If Proppant Solutions

had a functioning satellite office, the record reveals nothing about it. It does not

reveal whether any other Proppant Solutions employees work in Texas or

anywhere else outside of California. And it does not explain why Hall, a senior

officer and co-owner of Proppant Solutions, worked at home in Houston.

Thus, the record suggests no reason why these calls and e-mails were sent to

Houston other than Hall’s decision to receive them there. But Hall’s unilateral

decision does not determine personal jurisdiction over Emma. See Michiana, 168

S.W.3d at 794 (RV dealership not subject to special jurisdiction in Texas because

18
its “only contact with Texas was Holten’s decision to place his order from there”).

That Hall worked from his home office in Houston, not California, was merely

fortuitous. See Parex, 427 S.W.3d at 427 (“Parex Canada’s telephone, email, and

virtual data room contacts with Nabors coupled with a finding that Parex Canada

intended the contacts to harm ERG in Texas is not enough to establish purposeful

availment.”).

C. The record does not establish Emma’s participation in organizing the
proppant delivery

Proppant Solutions also contends that specific jurisdiction is proper because

Emma “personally participated in organizing the delivery and receipt [of the

oilfield proppant] from China through the Port of Houston, and onto Pleasanton,

Texas.” The dissent agrees, contending that “[Emma] helped organize the receipt

of the proppant in Houston, and she arranged for trucks to deliver it to Pleasanton.

She . . . arrang[ed] the logistics of the transportation and [dealt] with financing and

billing.”

But Proppant Solutions’ petition alleged a much more limited role:

“ChristDel, through its financial officer, Emma Delgado, sent eighteen monthly

invoices to Michael Hall, Proppant Solutions’ financial officer in Houston, Texas.”

Proppant Solutions’ response to the special appearance explained: “She was the

administrator of ChristDel and handled its finances and invoiced Proppant

Solutions monthly for expenses and logistics . . . . She was responsible for the

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billing to Proppant Solutions for all expenses and charges for logistics for the

entire project . . . .”

The only allegation to the trial court suggesting that Emma controlled or

orchestrated proppant delivery comes from Proppant Solutions’ sur-reply, which

alleged: “Emma was involved in setting up a logistics chain in Texas to import

[proppant] for ultimate destination in Pleasanton, Texas.” That allegation cites an

e-mail from Emma to Proppant Solutions, which states, “Juan, Marc and I have

delivered a logistics chain that is competitive.” Assuming that we may consider an

allegation raised for the first time in a sur-reply, this sheds almost no light on

Emma’s role, if any, in coordinating the movement of proppant. Absent more, this

is not enough to establish purposeful availment.

D. Emma’s visit to Texas is not related to this litigation

Proppant Solutions relies on Emma’s visit to EOG’s Pleasanton, Texas

facility to support the exercise of specific jurisdiction. But Proppant Solutions did

not allege that Emma ever met with, communicated with, or committed any tort

against Proppant Solutions while visiting Texas.

This contact cannot support special jurisdiction over Emma because no

alleged liability arises from or is related to it. See Kelly, 301 S.W.3d at 659–60. In

Kelly, an Arizona general contractor contracted to renovate a Houston hotel. Id. at

655. The general contractor hired several Texas subcontractors to perform the

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work. Id. After the contract was performed, the hotel owner asserted that the work

was substandard and sued the general contractor and the subcontractors. Id. at 655–

56. One of the Texas subcontractors filed third-party claims for breach of contract,

violation of the Texas Trust Fund Act, and fraud against the Arizona general

contractor and its corporate officers. Id. at 656.

The third-party plaintiff asserted that the officers of the general contractor,

despite operating from the Arizona office, had the following Texas contacts: they

received the subcontractors’ invoices from Texas, sent payments and change orders

from Arizona to the subcontractors in Texas, and traveled to Texas several times

during the renovation to oversee the subcontractors’ work. Id. The Texas Supreme

Court held that these activities did not allow Texas to exercise specific jurisdiction

over the officers; the subcontractor’s pleading “contain[ed] no allegations that the

[o]fficers’ wrongdoing occurred in Texas. . . . [I]t did not allege that any fraudulent

acts occurred in Texas.” Id. at 659–60. “Thus, although [the subcontractor] has

alleged two claims of wrongdoing, it has not alleged that any acts giving rise to

these two claims occurred in Texas.” Id. at 660.

Nevertheless, Proppant Solutions cites Carlile Bancshares, Inc. v.

Armstrong, No. 02-14-00014-CV, 2014 WL 3891658, at *1 (Tex. App.—Fort

Worth Aug. 7, 2014, no pet.) (mem. op.), to assert that Emma’s one visit to Texas

is enough to create specific jurisdiction. In Carlile, a Colorado corporation sought

21
out a business relationship with a Texas corporation; two officers from the

Colorado corporation allegedly made fraudulent statements while meeting with the

Texas corporation in Texas. Id. “These allegations met [the plaintiffs’] initial

pleading burden by alleging acts or omissions in Texas . . . and torts arising from

such conduct.” Id. at *12.

This case is more similar to Kelly than Carlile. Here, Proppant Solutions

never alleged any tort arising from Emma’s visit to EOG in Texas. It has not

alleged any interaction with Emma during her trip. It has not asserted a claim based

on any alleged misrepresentation made during or about the trip. Therefore, Emma’s

visit to the EOG facility is not substantially related to Proppant Solutions’ claims

against her.

E. Proppant Solutions cannot rely on directed-at tort jurisdiction

The allegation that all of Emma’s actions were part of a conspiracy intended

to defraud Proppant Solutions in Texas does not aid its case. Only Emma’s

contacts, not the contacts of her co-defendants, affect our analysis. See Burger

King, 471 U.S. at 474–75, 105 S. Ct. at 2183 (quoting Hanson v. Denckla, 357

U.S. 235, 253, 78 S. Ct. 1228, 1239–40 (1958)); see also Nat’l Indus. Sand Ass’n

v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995) (criticizing conspiracy as independent

basis for jurisdiction). Further, the Texas Supreme Court has rejected directed-at

tort jurisdiction. Michiana, 168 S.W.3d at 790; see also Curocom Energy LLC v.

22
Young-Sub Shim, 416 S.W.3d 893, 897 (Tex. App.—Houston [1st Dist.] 2013, no

pet.) (“Directing a tort at the forum from afar does not constitute purposeful

availment.”); Proskauer Rose LLP v. Pelican Trading, Inc., No. 14–08–00283–

CV, 2009 WL 242993, at *4 (Tex. App.—Houston [14th Dist.] Feb. 3, 2009, no

pet.) (mem. op.) (rejecting “directed-at-tort contentions” and holding trial court did

not have specific personal jurisdiction over New York law firm whose attorney

created opinion letter in New York and sent it to Texas). Rather, “jurisdiction

turns . . . on a defendant’s contacts, [not] where the defendant ‘directed a tort.’”

Michiana, 168 S.W.3d at 790. Thus the issue is not whether there was a tortious

conspiracy directed at Texas, but rather whether Emma has sufficient minimum

contacts with Texas to support the exercise of specific personal jurisdiction over

her. For the reasons stated in this opinion, we conclude that she does not.

Conclusion

Under the applicable standards of review and based on Proppant Solutions’

allegations and evidence, we find no substantial connection between Emma’s

purposeful contacts with Texas and the operative facts of this litigation. See Moki

Mac, 221 S.W.3d at 585–88 (finding no specific jurisdiction because substantial

connection between defendant’s purposeful contacts with Texas and operative facts

of litigation did not exist); BMC Software, 83 S.W.3d at 797 (concluding no

specific jurisdiction existed for contact that occurred outside of Texas).

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Accordingly, we overrule Proppant Solutions’ sole issue on appeal and affirm the

trial court’s order granting Emma’s special appearance.

Harvey Brown
Justice

Panel consists of Justices Keyes, Higley, and Brown.

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