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Hoffmann-La Roche3/27/2003
This is an accelerated, interlocutory appeal from the trial court's denial of Appellant's, Hoffmann-La Roche, Inc., special appearance in a product liability and negligence action. For the reasons stated, we affirm.
I. SUMMARY OF THE EVIDENCE
Appellees, Douglas Kwasnik, Arliene Pearson, Justin Kwasnik, Vui Kwasnik, Brandon Kwasnik, Andrusha Kwasnik, Xuan Kwasnik, Anya Kwasnik, Lydia Kwasnik, Chad Kwasnik, Tanner Kwasnik, Lauren Kwasnik, Collin Kwasnik, Corrin Kwasnik, Kimberly Voght, and Brian Rosato, allege that Douglas Kwasnik suffered injuries as a result of his exposure to asbestos products and asbestos dust. Appellees sued numerous companies, including Hoffmann-La Roche, where Douglas worked. Hoffmann-La Roche filed a special appearance in which it asserted that the exercise of personal jurisdiction over it did not comport with fair play and substantial justice. Hoffmann-La Roche later amended its special appearance and claimed it lacked minimum contacts with this jurisdiction. After a hearing on the matter, the trial court denied Hoffmann-La Roche's special appearance. This interlocutory appeal follows.
II. DISCUSSION
Hoffmann-La Roche presents three issues challenging the trial court's denial of its special appearance and one issue challenging the trial court's failure to file findings of facts and conclusions of law. We begin with a discussion of the special appearances issues. The fourth issue is discussed thereafter.
A. Special Appearance Issues
Recently, this Court overruled MacMorran v. Wood, 960 S.W.2d 891, 894-95 (Tex. App.--El Paso 1997, writ denied) and In re Estate of Judd, 8 S.W.3d 436, 440-41 (Tex. App.--El Paso 1999, no pet.) and adopted legal sufficiency as the appropriate standard of review for issues on personal jurisdiction. See Tuscano v. Osterberg, 82 S.W.3d 457 (Tex. App.--El Paso, 2002, no pet.) (rejecting both factual sufficiency and abuse of discretion standards of review for questions of personal jurisdiction and adopting legal sufficiency standard).
The Texas Supreme Court recently articulated the standard for reviewing a trial court's order denying special appearance. BMC Software Belgium, N.V. v. Marchand, 2001 WL 1898473 (Tex. June 27, 2001). In BMC Software, the court agreed with the majority of intermediate courts and held that courts of appeals should review the trial court's factual findings for legal and factual sufficiency and review the trial court's legal conclusions de novo. Id. at *2. The court expressly disapproved of those cases applying an abuse of discretion standard only. Id. The court also noted that when the appellate record includes the reporter's and clerk's records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court. Id. at *3. For legal sufficiency points, the court reiterated that if there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Id. Therefore, we review the trial court's decision on a special appearance under that articulated in BMC Software. Id. Texas courts may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards. Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). The Texas long-arm statute reaches "as far as the federal constitutional requirements of due process will allow." Id. Thus, the Texas long-arm statute requirements are satisfied if exercising jurisdiction comports with federal due process limitations. Id. We rely
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