NO. 01-0059
NO. 01-0060
IN THE
SUPREME COURT OF
E. I. DUPONT DE NEMOURS AND COMPANY,
Petitioner
VS.
AARON
AND
CHARLES NORMAN ADKINS, ET AL,
Respondents
GLEN W. MORGAN
State Bar No. 14438900
RICHARD J. CLARKSON
State Bar No. 04323000
Reaud, Morgan & Quinn, Inc.
(409) 838-1000
FAX (409) 833-8236
IDENTITY
OF PARTIES AND COUNSEL
Pursuant to Rule 53.2, Tex.R.App.P., the following is a list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel:
Appellant/Petitioner: E.I. du Pont de Nemours and Company
Appellate Counsel:
Mike A. Hatchell
Molly H. Hatchell
Hatchell,
P.C.
Trial Counsel:
Sandra F. Clark
M.C. Carrington
Mehaffy
& Weber, P.C.
Appellees/Respondents: 4,300+ private individuals, listed in Appendix “H” of the Petition for Review
Appellate Counsel:
Glen W. Morgan
Richard J. Clarkson
Reaud,
Morgan & Quinn, Inc.
Trial Counsel:
Glen W. Morgan
Richard J. Clarkson
Reaud,
Morgan & Quinn, Inc.
Joseph F. Rice
J. William Lewis
Environmental
Litigation Group, P.C.
TABLE OF CONTENTS
Identity of Parties and Counsel.................................................................................. ii
Table of Contents................................................................................................................... iv
Index of Authorities.............................................................................................................. vi
Statement of the Case......................................................................................................... xi
Statement of JURISDICTION............................................................................................... xiii
Issues Presented...................................................................................................................... xix
ISSUE NO. 1............................................................................................................................. xix
ISSUE NO. 2............................................................................................................................. xx
ISSUE NO. 3............................................................................................................................. xx
ISSUE NO. 4............................................................................................................................. xx
ISSUE NO. 5............................................................................................................................. xx
ISSUE NO. 6............................................................................................................................. xx
statement of facts................................................................................................................. 1
EDWARD'S TEXAS CLAIMS.......................................................................................................... 5
SUMMARY OF THE ARGUMENT................................................................................................ 7
ARGUMENT AND AUTHORITIES............................................................................................... 7
STANDARD OF REVIEW [NOT IN THIS RESPONSE]
WAIVER OF SPECIAL APPEARANCE.......................................................................... 9
TRANSITORY NATURE OF TORT CLAIMS [NOT IN THIS RESPONSE]
”TRIAL” OF SPECIAL APPEARANCE [NOT IN THIS RESPONSE]
CONSPIRACY [NOT IN THIS RESPONSE]
CONCERT OF ACTION [NOT IN THIS RESPONSE]
CLASS-ACTION [NOT IN THIS RESPONSE]
PRINCIPAL OF EQUAL CITIZENS VIOLATED BY XENOPHOBIC
ARGUMENTS [NOT IN THIS RESPONSE]
PERSONAL JURISDICTION [NOT IN THIS RESPONSE]
DUPONT’S FAILURE TO MEET ITS BURDEN [NOT IN THIS RESPONSE]
THE BURDEN ON THE DEFENDANT [NOT IN THIS RESPONSE]
THE INTEREST OF TEXAS IN ADJUDICATING THIS LAWSUIT
[NOT IN THIS RESPONSE]
EDWARD’S INTEREST IN OBTAINING CONVENIENT AND
EFFICIENT ReLIEF [NOT IN THIS RESPONSE]
SHARED INTEREST OF STATES AND EFFICIENT RESOLUTION
OF CONTROVERSIES [NOT IN THIS RESPONSE]
CRITICISM OF DUPONT’S CASE LAW [NOT IN THIS RESPONSE]
CONCLUSION [NOT IN THIS RESPONSE]
CERTIFICATE OF SERVICE..................................................................................................... 16
Index of
Authorities
Cases Page
769 S.W.2d 719 (Tex.App.—Houston [1st Dist.] 1989, no writ)................................................ xviii
Allen v. American Petrofina, Inc.,
837 S.W.2d 415 (Tex.App.—Beaumont 1992), rev. in part and aff. in part
at 887 S.W.2d 829 (Tex. 1994)....................................................................................................... 4
Allen v. Bass,
47 S.W.2d 426 (Tex.Civ.App.—El Paso 1932, writ ref’d.)......................................................... 6
Ames v. Ames,
776 S.W.2d 1154 (Tex. 1989).......................................................................................................... xxi
Asahi Metal Indus. Co. v. Superior Court,
480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).................................................................. 7
Barrett v. Barrett,
715 S.W.2d 110 (Tex.App.—Texarkana 1986, ref. n.r.e.)......................................................... 10
Brown v. Brown,
520 S.W.2d 571 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ dism’d.).............................. 15
Bruneio v. Bruneio,
890 S.W.2d 150 (Tex.App.—Corpus Christi 1994, no writ)...................................................... 15
Burger King Corp. v. Rudzewicz,
471 U.S. 462 , 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)............................................................... xxi
Chambers v. Terrell,
639 S.W.2d 451 (Tex. 1982)............................................................................................................ xxii
Chick Kam Choo v. Exxon Corp.,
486 U.S. 140, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988).............................................................. 6
City of Wilmer v. Laidlaw Waste Sys.,
890 S.W.2d 459 (Tex.App.—Dallas 1994), aff’d. at 904 S.W.2d 656
(Tex. 1995).......................................................................................................................................... 10
Coleman v. Lumbermens Mut. Cas. Co.,
786 S.W.2d 445 (Tex.App.—Houston [1st Dist.] 1990, writ denied)........................................ 14
944 S.W.2d 405 (Tex.App.—Houston [14th Dist.] 1997, no writ)............................................. xix
Dawson-Austin v. Austin,
968 S.W.2d 319 (Tex. 1998)............................................................................................................ 13
Marmon v. Mustang Aviation, Inc.,
Millison v. E. I. du Pont de Nemours,
Mouso v. Alworth,
777 S.W.2d 795 (Tex.App.—Beaumont 1989, orig. proceeding)............................................. 11
Orion Enterprises, Inc. v. Pope,
927 S.W.2d 654 (Tex.App.—San Antonio 1996, original proceeding)................................... 15
Owens Corning v. Carter,
997 S.W.2d 560 (Tex. 1999)
cert. denied sub nom. Moore v. Owens
Corning, 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2d 386 (1999)............................................ 6,7
Pako Corp. v. Thomas,
855 S.W.2d 215 (Tex.App.—Tyler 1993, no writ)....................................................................... 14
Pena v. Sling,
140 S.W.2d 441 (Tex. 1940)............................................................................................................ 13
Pittsburgh Corning Corporation v. Walters,
1 S.W.3d 759 (Tex.App.—Corpus Christi 1999, pet. pending, abated
pursuant to bankruptcy)................................................................................................................. 6
Portland Savings &
Loan Ass’n. v. Bernstein,
603 S.W.2d 478 (Tex.App.—Corpus Christi 1985), opinion vacated at
716 S.W.2d 532 (Tex.App.—Corpus Christi 1985, refused n.r.e.),
cert denied, 106 S.Ct. 1200............................................................................................................. 12
Resendez, et al v. Johnson, et al,
Seeley v. Seeley,
690 S.W.2d 626 (Tex.App.—Austin 1985, no writ).................................................................... 15
Slater v. Metro Nissan of Mont Clair,
801 S.W.2d 253 (Tex.App.—Fort Worth 1991, writ denied).................................................... xxiii,
10
Steve Tyrell Productions, Inc. v. Ray,
674 S.W.2d 430 (Tex.App.—Austin 1984, no writ).................................................................... 15
The State Bar of Texas v. Gomez,
891 S.W.2d 243 (Tex. 1994)............................................................................................................ xxi
Wagner &
Brown v. Horwood,
NO. 01-0059
NO. 01-0060
IN THE
SUPREME COURT OF TEXAS
AUSTIN, TEXAS
E. I. DUPONT DE NEMOURS AND COMPANY,
Petitioner
VS.
AARON CLIFTON EDWARDS, ET AL
AND
CHARLES NORMAN ADKINS, ET AL,
Respondents
TO THE HONORABLE SUPREME COURT OF TEXAS:
This limited, responsive brief to the Petition for Review in the Edwards and Adkins cases is filed by the named respondents and the thousands of other plaintiffs that they represent. Petitioner will be referred to as “Dupont” and the respondents will be referred to as “Edwards/Adkins.”
Inez Martin, Charles Norman Adkins, Aaron Clifton Edwards, and approximately 4,000 other plaintiffs filed their Original Petition in the 60th Judicial District Court on January 26, 1995. Judge Sanderson’s trial management plan of this large consolidated case is to have separate trials of fifteen plaintiffs seriatim until such time as all 4,000 plaintiffs have had a trial or the entire case is settled. Since that trial plan was initiated by the court, there have been four “severances” of fifteen plaintiffs each: Gurganus group, Harbison group, Adkins group, and the most recent severance was the Price/Edwards group. Dupont has adopted the policy of separately severing itself out of these groups who have been severed for trial. There will be in each instance, a separate cause of action for trial of the fifteen plaintiffs versus Dupont only. The ostensible purpose of this is so that Dupont can file a separate appeal on its jurisdictional claims for each group of fifteen plaintiffs that have been severed for trial. Dupont has appealed Adkins and Price/Edwards groups.
Potentially, Dupont will file 266 or more separate Petitions for Review in this Court on its jurisdictional claims! Because of the trial and appellate strategy of Dupont, this Court is facing the danger of an infinite loop which will circle around and around 266 or more times, all involving the same pleadings stemming from the mother case of Inez Martin and each involving the same legal issues.
Pursuant to Tex.R.App.P. 38.1(f), Edwards categorically rejects the following misstatement in Dupont’s statement of the case filed in the Court of Appeals [deleted from Petition for Review]:
Appellees do not assert claims against Dupont as a premises owner or as a manufacturer of asbestos-containing products. Rather, Appellees’ claims against Dupont are based on the remarkable premise that Dupont explosives used by U.S. Steel in its furnaces and open hearths disturbed asbestos-containing materials, that such disturbances potentially resulted in asbestos exposure, and that Appellees can maintain a cause of action under Alabama law based on their theory that Dupont should have warned them that U.S. Steel’s use of Dupont explosives at its plant could result in such potential exposure.
But see, paragraph 2, pg. 1 of Petition for Review.
Adkins’ and Edwards’ petitions and amended petitions are no different in form or substance than those similar documents examined by this Court two years ago in E. I. du Pont de Nemours v. Bailey, 986 S.W.2d 82 (Tex.App.—Beaumont 1999, dism. w.o.j.). The pleadings in Adkins and Edwards and Bailey are the same and the legal arguments on the special appearances in these three cases are the same. Bailey, in all regards, is a white horse case. Dupont hired special outside counsel to carry the appeal in Bailey to the Texas Supreme Court and, after full briefing on the merits, the Texas Supreme Court dismissed the appeal on January 27, 2000, and overruled the motion for re-hearing on April 27, 2000. There are few recent cases in Texas Jurisprudence that have been as extensively examined and argued as Bailey.
This Court does not have jurisdiction under § 22.001(a)(2) of the Tex.Gov’t.Code because the Beaumont Court of Appeals’ opinion does not materially conflict with the five appellate decisions cited by Dupont: James v. Illinois Central R.R. Co., 965 S.W.2d 594, 599 (Tex.App.–Houston [1st Dist.] 1998, no pet.); Juarez v. United Parcel Serv. de Mexico S.A. de C.V., 933 S.W.2d 281, 285-86 (Tex.App.–Corpus Christi 1996, no writ); Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684 (Tex.App.—San Antonio 1998, no pet.); J&J Marine, Inc. v. Le, 982 S.W.2d 918 (Tex.App.—Corpus Christi 1998, no pet.); and Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25, 32 (Tex.App.—San Antonio 1998, writ dism. w.o.j.).
In its petition for review filed in this Court in 1999 in the Abernathy case, Petitioner cited the James and Juarez cases in its Statement of Jurisdiction, but failed to cite the Magnolia Gas Co., J&J Marine, Inc. and Disney Enterprises, Inc. cases. Those cases had been decided by the appellate courts at the time that Abernathy was dismissed for want of jurisdiction. Why were they not in point then, but are cited in support of conflict’s jurisdiction now? No explanation is given!
None of those cases meet the stringent requirements for conflicts jurisdiction set out in Coastal Corp. v. Garza, 979 S.W.2d 318, 319-320 (Tex. 1998). This Court has stated that it is difficult to establish conflicts jurisdiction and that the conflict must be on the very question of law actually involved in the prior case. Gonzalez v. Avalos, 907 S.W.2d 443, 444 (Tex. 1995).
The James opinion was criticized for not following Texas precedent and not recognizing that this is a matter that should have been handled by a forum non conveniens analysis and not a jurisdictional claim. See, Paul E. McGreal and Jeffrey D. Kyle, Conflict of Laws, 52 SMU L.R. 835, 855 (1999). The James opinion recognizes the distinction between that case and this case with its recognition of the distinction made by Acacia Pipeline Corp. v. Champlin Exploration, Inc., 769 S.W.2d 719, 720 (Tex.App.—Houston [1st Dist.] 1989, no writ) (a foreign corporation licensed and authorized to transact business in Texas consents to the jurisdiction of Texas courts for all purposes). The James court goes on to emphasis the distinction by stating that the Illinois Central Railroad was not a licensed foreign corporation in Texas.
Again, the James court in the dissent of Justice Andell distinguished the Juarez v. United Parcel Service case on the issue of “fair play and substantial justice,” as follows:
The rare cases have generally been restricted to those involving international defendants. See, e.g., Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113-15, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987); Guardian Royal Exch., 815 S.W.2d at 232-33; Juarez v. United Parcel Service de Mexico S.A. de C.V., 933 S.W.2d 281, 286 (Tex.App.—Corpus Christi 1996, no writ). In these cases, the presence of an international defendant tends to be a determinative factor in finding that the exercise of personal jurisdiction would be unreasonable. The present case contains no such determinative factor.
See also, Conner v. Conticarriers and Terminals, 944 S.W.2d 405, 415 (Tex.App.—Houston [14th Dist.] 1997, no writ).
Two of the additional cases cited by Dupont do not have jump cites. Perhaps that is because the cases do not represent a conflict even in the mind of Dupont. In Magnolia the court states that “Magnolia and MKP’s emphasis on their own conduct is correct.” Dupont has never placed the emphasis on its own conduct, but only that of the alleged Alabama plaintiffs. Magnolia is a contract case and the court stated:
Merely contracting with a Texas corporation does not satisfy the minimum contacts requirement.
That is why the court found there was no specific jurisdiction. The Edwards and Adkins plaintiffs have alleged general jurisdiction.
Likewise, the J&J Marine, Inc. case involved a breach of contract dispute. The Court of Appeals held that there was no evidence of either specific or general jurisdiction. In the case at bar, Dupont conceded minimum contacts with Texas. E.I. du Pont de Nemours Co. v. Bailey, 986 S.W.2d 82, 83 (Tex.App.—Beaumont 1999, dism’d. w.o.j.) (“Dupont concedes minimum contacts”). Additionally, the J&J Marine, Inc. court held that this contract dispute “. . . calls for arbitration of disputes in Alabama” (page 928).
Disney Enterprises, Inc. represents another case involving a failed business transaction involving the breach of an agreement by Disney to conduct tour performances in Mexico. The Disney Enterprises court found that there was a lack of personal jurisdiction over Disney Enterprises in Texas. Again, Dupont has conceded minimum contacts with Texas. The court’s principal reasoning appeared to be:
It is well settled, however, that a non-resident defendant will not be made to answer to a suit in a jurisdiction based upon the unilateral activity of third party. (page 32)
That is not the basis of any ruling in the Edwards and Adkins cases. There has been no challenge to any of the fraud and conspiracy allegations either.
The Abernathy case, which was reviewed by this Court and dismissed without jurisdiction in late 1999, is a “white horse” case to the two cases under review in this appeal. It is not clear if the request for additional briefing in this case represents the refighting of an old issue or some genuine interest in setting aside old stare decisis on conflicts jurisdiction. In Wagner & Brown v. Horwood, 2001 WL 359540 (Tex., April 12, 2001), Justice Hecht in a dissenting opinion mentioned the Abernathy case in footnotes 16 and 17. Abernathy is also cited in the body of the dissent:
E. I. du Pont de Nemours & Co. v. Abernathy, No. 99-0246 (Motion for Rehearing, urging Court to exercise conflict jurisdiction and not to allow “finite factual distinctions” to impair review but to find conflict based on the way legal principles are applied to the core facts).
There is no sign that this Court wants to change the long-established rules for conflicts jurisdiction. See, Resendez, et al v. Johnson, et al, 44 Tex.Sup.Ct.J. 336 (Tex. 2001). This petition for review should be denied because the Supreme Court has no conflict’s jurisdiction in this case.
All cases cited by Petitioner in its Statement of Jurisdiction are based on the unique facts of those cases. Questions of “fair play and substantial justice” are inordinately fact questions which should be decided by the factual analyses of the Courts of Appeal. The special emphasis on factual determinations on these questions has long been recognized by the United States Supreme Court. “The grays are dominant and even among them the shades are innumerable.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 486 n.29 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Kulko v. California Superior Court, 436 U.S. 84, 92 (1978)). This is all the more reason why this Court should not accept jurisdiction on these factual questions involving shades of gray, but should give the trial court and Court of Appeals’ analysis of the facts great deference. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (great deference given to fact findings of trial court and reversal only if trial court could originally have reached only one decision).
Jurisdiction does not lie under this Court’s “inherent jurisdiction” because the opinion of the Beaumont Court of Appeals does not conflict with the “supreme law of the land” as established by Congress and the Supreme Court of the United States. Although Petitioner argues that Eichelberger v. Eichelberger, 582 S.W.2d 395, 397-400 (Tex. 1979) gives this Court jurisdiction over this case under its “inherent powers,” Respondents respectfully disagree with that interpretation. In the case of The State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994), this court said that the “inherent power” concept referred to administrative powers and not jurisdictional powers. All of the questions raised in this Petition for Review deal with jurisdictional powers.
The Texas legislature has limited the Supreme Court’s appellate jurisdiction to matters of law only. Tex.Gov’t.Code § 22.001(a). Section 22.001 must be considered in light of § 22.225 that provides that the Court of Appeals’ judgment is conclusive on the facts of the case in all civil cases. The facts of this case as found by the trial court and affirmed by the Court of Appeals support the trial court’s jurisdiction and do not present any question of federal or state constitutional law that would invoke this Court’s “inherent jurisdiction.” See also, Tex.Const. Art. V, § 6; Ames v. Ames, 776 S.W.2d l154, 158 (Tex. 1989) (this constitutional provision not only grants authority to the Court of Appeals, but also limits the jurisdictional authority of the Supreme Court).
In neither its Petition for Review nor Petitioner’s Brief on the Merits has there been an issue attacking the Court of Appeals holding that there was no evidence Dupont submitted on what “burden” it would be required to bear if this case was tried in Texas. The Court of Appeals held that there was no evidence bearing upon the concept of fair play and substantial justice. See, E. I. du Pont De Nemours & Co. v. Bailey, 986 S.W.2d 82, 84 (Tex.App.—Beaumont 1999, pet. pending). The same failure to put in the record evidence of Dupont’s burden to try cases in southeast Texas exists in these cases. The failure of Dupont to bring a no evidence question before this Court on the Court of Appeals’ finding of no evidence constitutes a waiver of that issue and is dispositive in this case. See, Chambers v. Terrell, 639 S.W.2d 451, 451-452 (Tex. 1982). This Court stated in a per curiam opinion refusing a writ of error:
The Court of Appeals reversed that judgment and dismissed the petition for termination. A reason assigned was that there was no evidence to support the finding of the trial court that termination was in the best interest of the child. 630 S.W.2d 800.
There is not a point attacking this “no evidence” holding; and we regard that as dispositive of the case.
Dupont was represented in the trial court by two attorneys: Sandra F. Clark and M. C. Carrington of the law firm of Mehaffy & Weber. See, Dupont’s rule 53.2, Tex.R.App.P., Identity of Parties and Counsel. Dupont’s Special Appearance in this case had a verification signed by M. C. Carrington. See, Appendix A (1, 2, 3) attached to Petitioner’s Brief on the Merits. Abernathy’s Response to the Special Appearance of Dupont specifically attacked the defective verification of M. C. Carrington. See, Appendix I. Dupont failed to present to the trial court a properly sworn affidavit as required by Tex.R.Civ.P. 120a(3). Because the verification in support of the Special Appearance was fatally defective, Dupont has failed to comply with the procedural requirements necessary to raise their federal constitutional claims. Dupont submitted itself to the jurisdiction of the trial court. See, Slater v. Metro Nissan of Mont Clair, 801 S.W.2d 253, 254 (Tex.App.—Fort Worth 1991, writ denied).
Did Dupont waive its Special Appearance because of numerous actions on its part submitting itself to the jurisdiction of the court:
(1)> Defective Affidavit of M. C. Carrington attached to Special Appearance of Dupont in the “mother” case of Inez Martin v. ACandS, Inc., Cause No. B‑150,896 in the 60th Judicial District Court of Jefferson County, Texas;
(2)> Dupont’s participation in a hearing in the Inez Martin and Harbison cases [Harbison v. Owens Corning, Cause No. A-150,896-A] on June 12, 1998, on its Special Appearance and Special Exceptions;
(3)> Dupont’s failure to obtain a ruling on a Special Appearance in the Martin and Harbison cases following the “trial” on the merits held on June 12, 1998;
(4)> Dupont sought, or consented, to various severances prior to any ruling on its Special Appearance;
(5)> Dupont filed no Special Appearance attacking the jurisdiction of the counter-claims filed against it and filed a Motion to Dismiss the counter-claims prior to any ruling on its Special Appearance;
(6)> Dupont’s participation in a hearing on June 26, 1998, on its Motion for Severance and Motion for Continuance in the Martin and Harbison cases;
(7)> Dupont’s three hearings on its new Special Appearance in Adkins were mere surplusage, since it had its Special Appearance “trial” in Inez Martin;
(8)> Dupont’s Motion to Dismiss for form non conveniens filed on June 25, 1999, was filed first and its Special Appearance was filed “subject thereto;”
(9)> Dupont’s discovery requests to the plaintiffs were far in excess of that necessary for a jurisdictional hearing; and
(10) Dupont’s judicial admission in the trial and appellate court in Abernathy, Bailey v. E.I. du Pont de Nemours and Company that it had “minimum contacts” with Texas bars the relitigation of that and constitutes res judicata, judicial admission, quasi-judicial admission, and quasi-estoppel on that point.
Did Dupont’s failure to place into the record any evidence on whether or not it would be a significant burden to defend this lawsuit in Beaumont, Texas during the “trial” on its special appearance constitute a waiver of its Rule 120(a) motion?
After minimum contacts have been established in a general jurisdiction case, does there still need to be a “reasonableness” inquiry based on the five Asahi factors?
Does Texas’ exercise of personal jurisdiction over Dupont in this case offend notions of fair play and substantial justice?
Do the arguments raised by Dupont in this appeal seeking to dismiss the cases of thousands of Alabama citizens violate the rights under the privileges and immunities clause, the commerce clause and the Fourteenth Amendment of the United States Constitution of these citizens from another state to a trial in Texas?
Its minimum contacts with Texas having been conceded by Dupont, does its issue on “traditional notions of fair play and substantial justice” as presented to the trial and appellate courts have more to do with the elements of a forum non conveniens argument – a non-appealable interlocutory order, than a Rule 120(a) motion?
Pursuant to Tex.R.App.P. 38.1(f), Edwards and Adkins do not concede the Statement of Facts as set out in pages 1 through 2 of Petition for Review.
Respondents do not concede that Dupont is a foreign corporation. It has very extensive operations throughout Texas. Its petroleum business is headquartered in Texas. Inez Martin’s response to the Special Appearance of Dupont set out some of those activities in Texas:
This Court has personal jurisdiction over E. I. du Pont de Nemours and Company. This defendant will hereinafter be referred to as “Dupont.” Dupont is a well-known name in Texas. Its products are in the stores of every little village and town across the state. Dupont has a reasonable expectation that when it places its products into the stream of commerce, they would enter Texas and be used here by millions of its citizens.
Dupont’s presence in Texas is not only because its products are shipped in interstate commerce and are purchased and used in Texas. Dupont also has a significant number of manufacturing plants and facilities here as well. According to the 1995 Directory of Texas Manufacturers Dupont has six manufacturing facilities in Texas: Polymer Products Dept./Beaumont Works, Highway 347, Beaumont, Texas; Fluoroproducts-Corpus Christi Pit, Highway 361, Ingleside, Texas; Agricultural Products Dept.-LaPorte Pit, 12501 Strange Road, LaPorte, Texas; Polymer Products Dept., FM 1006, Orange County, Texas; Dupont Photomasks, Inc.-Roundrock Pit, 100 Texas Avenue, Roundrock Texas; Dupont Nylon-Victoria Pit, Old Bloomington Road, Victoria, Texas. The pages from the directory with these references and additional information are attached to this response as Exhibit “A.”
*******************
Dupont has been served with process in this case by serving its registered agent for service: C. T. Corporation Systems, 350 N. St. Paul Street, Dallas, Texas 75201. Dupont has a registered agent for service in Texas, and has extensive physical facilities across the state. Its products are omnipresent throughout Texas. The facility in Orange County has just celebrated its 50th Anniversary of doing business in the county. See Exhibit “B.” This is a matter of public notoriety and is certainly something that this court can take judicial notice of. Dupont has consented to the jurisdiction of this court.
The trial court and this Court can take judicial notice of indisputable facts that are of public record. See, Kenneth Culp Davis, Judicial Notice, 55 Colum.L.Rev. 945, 948-952 (1955); Linda L. Addison, Judicial Notice: Beyond a Reasonable Dispute, 49 Texas Bar Journal 140, 140-141 (Feb. 1986); McDonald & Carlson, 6 Tex.Civ.P. § 43:9 (Second Edition, 1998). Attached as “Appendix A” is the 10-K filing of E. I. du Pont de Nemours and Company for 1997 with the United States Securities and Exchange Commission, Washington, DC. This public filing by Dupont gives a trial or appellate judge almost all he or she would need to determine a “general jurisdiction” question before the judicial courts of Texas. For example, one may glean the following information about E. I. du Pont de Nemours and Company:
(1) It operates globally through twenty strategic business units which units contain approximately eighty businesses that manufacture and sell products through operations in about seventy nations worldwide;
(2) 48% of its sales are outside the United States;
(3) Its worldwide employment at year-end 1997 was about 98,000 people;
(4) The corporate headquarters are in Wilmington, Delaware and its petroleum businesses are headquartered in Houston, Texas;
(5) The company operates sales offices, regional purchasing offices, distribution centers and various other specialized service locations throughout the world;
(6) Approximately 72% of the property, plant and equipment related to operations in the chemicals, fibers, polymers, life sciences and diversified businesses are located in the United States;
(7) There are 65 plant, property and equipment sites that are located principally in Texas, Delaware, Virginia, North Carolina, Tennessee, West Virginia, South Carolina and New Jersey;
(8) The principal plant sites in Texas are in Beaumont, Corpus Christi, LaPorte, Orange and Victoria [see “Appendix G” concerning Freeport plant];
(9) Property, plant and equipment outside the United States and Puerto Rico is located at about seventy sites, principally in the United Kingdom, Canada, Germany, The Netherlands, China, Singapore, Luxembourg, Spain, Mexico, Taiwan, France, Brazil, Belgium, Japan, Argentina and Republic of Korea;
(10) Pages 14-16 of the 10-K for 1997 discuss important legal proceedings against Dupont, but does not list in that discussion any of the lawsuits pending in Jefferson or Orange Counties, Texas;
(11) Net income for 1997 was $4.1 billion dollars;
(12) Sales in 1997 were a record $45.1 billion dollars, up 3% from 1996;
(13) The petroleum businesses, which are headquartered in Houston, had sales of $21.0 billion in 1997, up 4% from 1996 (for a good history of the merger of Conoco Oil with Dupont, see, Lewis v. Anderson, 477 A.2d 1040 (Del. 1984);
(14) The company paid total taxes of $8.3 billion dollars in 1997;
(15) The company’s common stock split 2-4-1 effective May 15, 1997;
(16) $268,000,000 was awarded in 1997 under the Variable Compensation Plan in stocks and/or cash as bonuses to certain employees who have contributed most in a general way to the company’s success.
From February 23, 1918, to the present date, E. I. du Pont de Nemours and Company has been authorized to transact business in the State of Texas. See, “Appendix B.” Its original agent in Texas in 1918 was A. B. Duffield, St. Anthony’s Hotel, San Antonio, and that same location was its principal place of business and principle office in the State of Texas.
The records of the Texas Comptroller of Public Accounts, Texas Franchise Tax, Public Information Report, shows that a number of the top executives of E. I. du Pont de Nemours and Company reside in Houston, Harris County, Texas:
Archie W. Dunham (Director);
A. W. Dunham (Executive Vice President);
G. W. Edwards (Senior Vice President);
R. E. McKee, III (Senior Vice President)
See, “Appendix C.”
Attached as “Appendix D” is a cop