Opinion
No. B-9690.
November 5, 1980.
Appeal from the 116th District Court, Dallas County, James E. Ellis, J.
Rex Renger and John L. Burke, Dallas, for petitioners.
E. Eldridge Goins, Jr., Dallas, for respondent.
Wright Waterproofing Company sued Applied Polymers of America, a New Jersey corporation, and Paul Fox as its sales representative in Texas, for breach of implied and express warranties. Applied Polymers filed a special appearance under rule 120a, Texas Rules of Civil Procedure, contesting Texas jurisdiction and moved for dismissal of the suit. The trial court sustained the motion in favor of Applied Polymers and dismissed the suit. The trial court also granted a summary judgment in favor of respondent Fox. The court of civil appeals affirmed the summary judgment in favor of Fox but reversed the special appearance sustained in favor of Applied Polymers and remanded the cause for trial. 602 S.W.2d 67. Both Wright and Applied Polymers filed applications for writ of error in this court.
In its application, Applied Polymers argues that it was not "doing business" in Texas. We agree, however, with the holding of the court of civil appeals that Applied Polymers was "doing business" in Texas under Tex.Rev.Civ.Stat.Ann. art. § 203(1)(b) and had sufficient minimum contacts to subject it to Texas jurisdiction.
In refusing Applied Polymers' and Wright's application for writ of error, no reversible error, our action is not to be interpreted as approving the court of civil appeals language which implies that a sales representative is in every instance the agent of an out-of-state defendant. There was evidence to support the trial court's finding that Fox was an independent contractor. Notwithstanding that finding, there are enough additional facts contained in the record and stated in the court of civil appeals opinion to support its holding that Applied Polymers was "doing business" in Texas.