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NUMBER 13-01-552-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI-EDINBURG
___________________________________________________________________
EL PUERTO DE LIVERPOOL, S.A. DE C.V., Appellant,
v.
SERVI MUNDO LLANTERO S.A. DE C.V., Appellee.
___________________________________________________________________
On appeal from the 92nd District Court
of Hidalgo County, Texas.
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OPINION ON MOTION FOR REHEARING EN BANC
Before the Court En Banc
Opinion by Chief Justice Valdez
Appellant, El Puerto de Liverpool, S.A. de C.V., has moved for rehearing and for rehearing en banc of this Court=s decision, issued May 30, 2002, affirming the denial of its special appearance. El Puerto asserts that this Court=s opinion must be withdrawn in light of the Texas Supreme Court=s subsequent decision in BMC Software Belgium, N.V. v. Marchand, 45 Tex. Sup. Ct. J. 930, 2002 Tex. LEXIS 103 (June 27, 2002). We overrule El Puerto=s motions for rehearing, but issue this opinion on rehearing to acknowledge and discuss this recent authority.
In BMC, the Texas Supreme Court lays to rest the split among the courts of appeal regarding the appropriate standard of review for a trial court=s order denying a special appearance. Id. at *4-*5 (contrasting abuse of discretion standard applied by the Fourth Court of Appeals and sufficiency review applied by the majority of appellate courts). Under the test adopted by the supreme court, we review the trial court=s factual findings for legal and factual sufficiency and the trial court=s legal conclusions de novo. Id. This is the standard that we applied in the instant case, and the BMC opinion confirms the correctness of that standard.
In BMC, the Texas Supreme Court further establishes that the party seeking to establish alter ego jurisdiction has the burden of proof to establish the alter ego relationship. Id. at *20-*21. Although in our opinion we state that this allocation of the burden of proof is questionable, noting a distinct split among the courts of appeals, we did not seek to resolve this issue in the instant case because the result was the same regardless of whether the plaintiff or the defendant bore the burden of proof. Consequently, the supreme court=s clarification of the burden does not affect our opinion in this regard.
Finally, in BMC, the Texas Supreme Court expressly articulates the test for finding jurisdiction based on an alter ego relationship. See id. at *19-*22. This is the same test that we applied in the instant case. The Texas Supreme Court neither changed the law nor suggested any standard other than the one applied in our original opinion. Although in BMC, the court failed to find jurisdiction based on an alter ego relationship, we note that this holding was largely the result of the plaintiff=s failure to offer proof in the record of the allegations underlying the alter ego claim. Id. at *23-*25. There was no similar failure of proof in this case.
___________________________
ROGELIO VALDEZ
Chief Justice
Publish.
Tex. R. App. P. 47.3.
Concurring opinion by Justice Dorsey.
Opinion on Motion for Rehearing En Banc
delivered and filed this 1st day of August, 2002.