author: JAN P. PATTERSON, Justice.

text:
    CITY OF SHOREACRES, City of Taylor Lake Village, City of Seabrook and The Galveston Bay Conservation and Preservation Association, Appellants, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and Port of Houston Authority, Appellees.
    No. 03-04-00363-CV.
    Court of Appeals of Texas, Austin.
    June 9, 2005.

      James B. Blackburn, Jr., Blackburn & Carter, P.C., Houston, Richard W. Low-erre, Lowerre & Kelly, Austin, for Appellants.
    Brian E. Berwick, Cynthia Woelk, Asst. Atty. Gen., Austin, for Texas Commission on Environmental Quality.

      David P. Blanke, Kimberly A. Frost, Sharon M. Mattox, David H. Brown, Alan B. Daughtry, Vinson & Elkins, L.L.P., Houston, for Port of Houston Authority.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

JAN P. PATTERSON, Justice.

The Port of Houston Authority has begun construction of the Bayport Project, a containerized cargo and cruise ship terminal complex in an industrial-zoned area on the existing Bayport Ship Channel in Galveston Bay. We must decide whether the Port of Houston had to obtain state authorization for the project from the Texas Commission on Environmental Quality, independent of the federal “dredge-and-fíll” permit that the Port obtained from the United States Army Corps of Engineers. If it did not, we must decide whether the issuance of a federal “dredge-and-fíll” permit and the commencement of construction on the Bayport Project mooted this controversy. The City of Shoreacres, City of Taylor Lake Village, City of Seabrook and the Galveston Bay Conservation and Preservation Association appeal a district court judgment dismissing their suit against the Commission for lack of jurisdiction based on mootness. For the reasons discussed below, we affirm the district court’s judgment.

BACKGROUND

The Port of Houston Authority has begun construction of the Bayport Project, a containerized cargo and cruise ship terminal complex in an industrial-zoned area on the existing Bayport Ship Channel in Galveston Bay. In 2003, it was estimated that dredging and filling activities for the construction of the container and cruise terminals would be completed in four phases, over 15-20 years. The project is located south of the City of Shoreacres, east of the City of Taylor Lake Village, north of the City of Seabrook, and along the channel that services several chemical manufacturing facilities. The Galveston Bay Conservation and Preservation Association is a public interest group that monitors Galveston Bay and whose members use the bay for recreation.

Before beginning construction on the Bayport Project, the Port had to obtain a Clean Water Act dredge-and-fíll permit (also known as a “section 404 permit”) from the United States Army Corps of Engineers, authorizing the Port to discharge dredged and fill material into the navigable waters of the United States. See 33 U.S.C.A. § 1344 (West 2001). In conjunction with the federal permit process, the Texas Commission on Environmental Quality issued a “section 401 certification” which found that the project would meet state water quality standards and be consistent with the state coastal management program. See 33 U.S.C.A. § 1341(a)(1) (West 2001); 16 U.S.C.A. § 1456 (West 2001); Tex. Nat. Res.Code Ann. §§ 33.205(b) (West Supp.2004-05), 33.2053(f)(6) (West 2001); 30 Tex. Admin. Code § 281.45(a)(2)(G) (2003); 31 Tex. Admin. Code § 505.11(a)(6)(F) (2003). The Clean Water Act empowers the Commission to grant, deny, or waive the section 401 certification. See 33 U.S.C.A. § 1341(a)(1); see also 30 Tex. Admin. Code § 279.2(b)(l)-(4) (2003).

The Port filed its application for a dredge-and-fill permit in 1998. In November 1999, Harris County voters approved $387 million in bonds for the Bayport Project’s construction. From 1999 through 2003, the Commission and the Corps evaluated the project. At least five public information workshops and a public hearing were held between 1999 and 2001. Published notices advised the public of the thirty-day comment periods following the draft version and final version of the Corps’s environmental impact statement. Written comments on the project were accepted until September 12, 2003.

Based on public input and its own study, the Commission added several special conditions to the project to ensure its conformity with Texas environmental policies. The United States Environmental Protection Agency, the United States Fish and Wildlife Service, the Texas Parks and Wildlife Service, and the Commission found that the Port’s final mitigation plan adequately compensated for the project’s environmental impacts. The Commission issued its section 401 certification without conditions on December 16, 2003, after determining that the project met state water quality standards and was consistent with the state coastal management program’s goals and policies.

On December 17, 2003, the Cities filed an administrative appeal in a Travis County district court seeking reversal of the certification and remand to the Commission. The Port intervened in the suit the following day. The Cities sought a declaration that the water quality certifications and coastal consistency determinations issued by the Commission’s executive director were not final actions and could not be relied upon by a federal agency or a private applicant as final state decisions until the Commission and the Coastal Coordination Council had completed their review. They also requested a declaration that the Commission’s rules authorizing its executive director to issue final water quality certifications without appeal to the Commission were contrary to its authorizing statutes.

Additionally, the Cities sought a temporary restraining order and temporary injunction to suspend the Commission’s water quality certification and coastal consistency determination, enjoin the Commission from representing that its order granting the certification and consistency determination was final, and maintain the status quo by advising the Port and the Corps of the temporary restraining order. Although the Cities had a hearing set in December 2003 on their request for injunctive relief (which, if granted, could have postponed the effectiveness of the Commission’s section 401 certification) the Cities agreed to pass that hearing and did not reset it.

The Corps issued its record of decision on December 19, 2003, recommending the issuance of a dredge-and-fill permit for the Bayport Project. On December 23, 2003, the Cities requested that the Coastal Coordination Council review the Commission’s 401 certification and coastal consistency determination for the Port’s dredge-and-fill permit. The Council did not grant review.

The Corps issued a federal permit to the Port on January 5, 2004, authorizing construction to commence on the Bayport Project. On January 28, 2004, the Commission “declined to take action” on the Cities’ motion to overturn the section 401 certification that preceded the permit’s issuance. After losing their motion to overturn, the Cities filed a second administrative appeal with the district court. The district court consolidated the suits.

The Port filed a motion to dismiss on April 29, 2004, arguing that matters regarding the Commission’s certification were moot because the Corps had issued a federal permit in reliance on the state certification and any revocation of the certification would not affect the validity of the permit that authorized the Bayport Project’s progress. The district court issued a final judgment on May 28, 2004, granting the Port’s motion and dismissing the Cities’ claims for lack of subject-matter jurisdiction based on mootness. The Port began construction of the Bayport Project in June 2004. The Port’s work on the container terminal already encompasses the complete footprint for the first of the four phases of construction. Construction has now moved beyond phase one to include work on the initial cruise terminal facilities.

In two points of error, the Cities challenge the district court’s dismissal of their administrative appeal of the Commission’s decisions and their requests for declaratory judgment. They contend that the issuance of the federal permit and the commencement of construction on the Bayport Project did not moot this controversy because the Port cannot continue the project without “state authorization that is separate and independent of the Federal process.” They also contend that their requested declaratory relief is within the “capable of repetition yet evading review” exception to mootness. The Cities ask this Court to reverse and remand the judgment of the district court so • that they may attempt to reverse the Commission’s decisions, “leaving the [Port] without valid authorizations and requiring new decisions by [the Commission] for authorizations before the [Port] can proceed legally under Texas law.” (Emphasis in original.)

ANALYSIS

Standard of Review

Whether a district court has subject-matter jurisdiction is a legal question that is reviewed de novo. Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Because the issue of mootness implicates a court’s subject-matter jurisdiction, we review the trial court’s dismissal in this case de novo. See Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex.1993); Pantera Energy Co. v. Railroad Comm’n, 150 S.W.3d 466, 471 (Tex.App.-Austin 2004, no pet.).

A case becomes moot when a party seeks to obtain a judgment on some controversy when none actually exists; or when a party seeks a judgment on a matter which, when rendered for any reason, cannot have any practical legal effect on a then existing controversy. Pantera Energy Co., 150 S.W.3d at 471. A dismissal for mootness is not a ruling on the merits; rather, it is the court’s recognition that it lacks jurisdiction under the Texas Constitution to render advisory opinions. Speer, 847 S.W.2d at 229 (citing Tex. Const. art. II, § 1). Thus, if a court’s ruling on the merits in this case — which questions the validity of the Commission’s certification for the federal permit — would not have a practical effect on a live controversy, it would constitute a prohibited advisory opinion. See id. at 472.

Cities’ Petitions

The Cities contend that the Port cannot continue the Bayport Project without “state authorization that is separate and independent of the Federal process.” Neither of the Cities’ petitions, however, contain this “independent state authorization” claim. Throughout the petitions, the Cities address reversal of the state’s certification within the federal permitting process and with the objective of halting the Bayport Project. If the federal permit’s issuance was irrelevant to “state authorization” for the Bayport Project, and preventing the project’s progress was not the Cities’ goal, it is not discernable from their petitions.

For instance, both petitions state: “In conjunction with the permit process, [the Commission] is given the role of determining whether the project meets state water quality standards and is consistent with the state coastal management program.” Thus, the petitions do not allege that the Commission makes its determinations “separate and independent” of the federal permit process, but as a part of it. The petitions also define the state coastal consistency determination as the “state process for review of federal actions and permits.” There is no mention of a coastal consistency determination conducted by the Commission “separate and independent” of the federal actions and permits. That section also notes “[i]n an effort to avoid duplication and delays in the consistency review process, the Texas program provides that Texas agencies must review their decisions related to federal actions or permits to determine if the state action is consistent with the coastal program.... [A] determination that the Project would not be consistent with the coastal program would block the permit and, thus, the Project.” This section reiterates the Cities’ objectives of avoiding the issuance of a federal section 404 permit and stopping the Bayport Project.

The Cities’ petitions sought declarations that the water quality certifications and coastal consistency determinations could not be relied upon by a federal agency or a private applicant as final state decisions until the Commission and the Coastal Coordination Council had completed their review. These requested declarations sought to prevent the Corps or the Port from relying on the Commission’s certification for the issuance of a federal permit.

Additionally, the Cities petitioned the court for a temporary restraining order and temporary injunction to “suspend the Commission’s water quality certification and coastal consistency determination,” “enjoin the Commission from representing that its order granting the certification and consistency determination was final,” and “maintain the status quo by advising the Port and the Corps of the temporary restraining order.” The petitions identify the effects on the Cities “if the proposed Bayport Project is built” and “if the Bay-port Project proceeds.” All of the injunc-tive relief the Cities sought was designed to prevent the issuance of the federal dredge-and-fíll permit and stop construction of the Bayport Project before it began.

Furthermore, if the Cities thought that a “state authorization separate and independent of the Federal process” was necessary for the Bayport Project, their petitions would not have characterized the issuance of a federal 404 permit as a “risk”:

There is a significant risk that the United States Army Corps of Engineers will accept the [Executive Director’s] determinations as final actions of the State and allow the Corps to grant a permit to the Port of Houston to begin construction and to dredge and fill areas of Galveston Bay, associated wetlands and streams. The Port has advised [the Cities] and others that it intends to begin construction of the Bayport Project as soon as it obtains a permit from the Corps of Engineers.

The focus on the federal permit evident in the Cities’ petitions is entirely consistent with the mootness concern the Cities addressed in their letter of September 12, 2003, to the Commission, the General Land Office, and the Corps:

The [Coastal Coordination Council] consistency review provided in Texas law and [Coastal Coordination Council] rules must occur within a twenty-six day period after the 401 certification is issued. Thus, the review could occur after the Corps has issued its hOlf. permit, and a permittee has implemented its project. A consistency review at that time would likely be moot.

(Emphasis added.) This is the review that the Cities now ask us to authorize.

Read fairly, the Cities’ petitions complained that the Commission’s flawed water quality certification and coastal consistency determination processes could support the issuance of a federal dredge- and-fill permit that would authorize construction of the Bayport Project. They wanted the Commission’s certification reviewed before the Corps issued a federal •permit. The allegations are not pled in the alternative. The petitions were never amended or supplemented; rather, an “independent state authorization” claim was introduced in the Cities’ response to the Port’s motion to dismiss, filed two days before the district court’s hearing on the motion.

Nothing in the Cities’ petitions resembles the contentions in their appellate briefing, which assert that there are “parallel permitting programs in place, [requiring that] both [federal and state] authorizations must be obtained” and that “[i]ssuance of the federal permit does not negate the need for issuance of the separate state permit that was created in state law.” The Cities’ brief also argues that “[w]hether the Corps of Engineers has issued a federal permit is of no importance” and that this appeal “does not address whether [the Commission] could revoke [its] decisions [to issue the water quality certification and coastal consistency determination] or what impact such a revocation might have.”

Even if the Cities had included their “independent state authorization” claim in their petitions, they could not prevail on such a claim. Under the current statutory scheme, no separate state authorization is required in Texas for the issuance of a section 404 dredge-and-fill permit.

Section 401 Certification Process

The Cities assert that “[i]ssuance of the federal permit does not negate the need for issuance of the separate state permit that was created in state law.” (Emphasis added.) But Texas law expressly forbids the Commission to issue a dredge-and-fill permit:

The commission may not require under this chapter any permit for the placing of dredged or fill materials into or adjacent to water in the state for the purpose of constructing, modifying, or maintaining facilities or structures, but this does not change or limit any authority the commission may have with respect to the control of water quality. The commission may adopt rules and regulations to govern and control the discharge of dredged or fill materials consistent with the purpose of this chapter.

Tex. Water Code Ann. § 26.027(d) (West 2000).

While the Commission did not issue its own dredge-and-fill permit, it participated in the federal 404 permitting process by issuing a section 401 certification. See 33 U.S.C.A. § 1341(a)(1). This 401 certification is the state’s finding that “there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards.” 40 C.F.R. § 121.2(a)(3). The Commission’s 401 certification is a unified process that includes a project’s consistency with the state coastal management program as part of its water quality certification. See 16 U.S.C.A. § 1456(c)(3)(A); Tex. Nat. Res.Code Ann. §§ 33.205(b), 33.2053(f)(6); 30 Tex. Admin. Code § 281.45(a)(2)(G); 31 Tex. Admin. Code § 505.11(a)(6)(F). This process furthers the Texas coastal management program’s intent to avoid creation of additional layers of bureaucracy. See 31 Tex. Admin. Code § 505.10(a)(3) (West 2003). The legislative history of rule 505.10 clarifies that the coastal consistency review is intended to “identify, address, and resolve consistency issues within the agencies’ existing permitting processes.” See 19 Tex. Reg. 7670 (1994) (31 Tex. Admin. Code § 505.10) (proposed March 18,1994).

The Clean Water Act empowers the Commission to grant, deny, or waive the section 401 certification. See 33 U.S.C.A. § 1341(a)(1); 30 Tex. Admin. Code § 279.2(b)(l)-(4). The state has one year to act on the request for 401 certification. 33 U.S.C.A. § 1341(a)(1); see also Processing of Department of the Army Permits, 33 C.F.R. § 325.2(b)(l)(ii) (2004) (Corps regulation generally requiring certification or waiver within 60 days for Corps permit); 30 Tex. Admin. Code § 279.11 (Commission rule generally requiring certification or waiver within 60 days for Corps permit). The state has veto power over the federal permit, because it will not issue if the state denies 401 certification. 33 U.S.C.A. § 1341(a)(1). But if the state fails to act on the request for certification within one year, the federal agency may consider the state certification waived and issue the 404 permit. Id.

An analogous deadline applies to state coastal consistency determinations. An applicant seeking to conduct activity affecting any natural resource of the coastal zone must certify to the federal permitting agency and to the state that the proposed activity complies with the enforceable policies of the state’s approved coastal management program. 16 U.S.C.A. § 1456(c)(3)(A). The state has six months from the date of receipt of the applicant’s certification to notify the federal agency that the state concurs with or objects to the applicant’s certification. Id. If the state does not notify the federal permitting agency within six months, the state’s concurrence with the certification is conclusively presumed. Id.; 33 C.F.R. § 325.2(b)(2)(ii) (2004).

After certification, the Act allows states to continuously monitor projects and notify a federal permitting agency of any water quality change that threatens the project’s continued compliance with the Clean Water Act. 33 U.S.C.A. § 1341(a)(3) (West 2001).

Functions of Certifications Versus Permits

A state’s water quality certification does not authorize any activity. See, e.g., National Marine Serv. Inc. v. Environmental Prot. Agency, 120 Ill.App.3d 198, 76 Ill.Dec. 151, 458 N.E.2d 551, 558 (1983) (even if plaintiff had been certified, no construction could have begun until permit was issued by Corps). It is the federal section 404 permit that authorizes the discharge of dredged and fill material into the navigable waters of the United States. See 33 U.S.C.A. § 1344 (West 2001). The state certification merely confirms compliance with applicable water quality standards and lists any conditions on how the activity will be accomplished. 33 U.S.C.A. § 1341(d) (West 2001); 40 C.F.R. §§ 121.2(a) (2004), .1(e) (2004) (certifying agency certifies compliance with applicable water quality standards), .2(a)(4) (2004); 30 Tex. Admin. Code § 279.11(d)(2)(A)®-(ii) (2003). Before the federal permit is issued, the state may set any limitations and monitoring requirements necessary for compliance with state and federal water quality standards. See 33 U.S.C.A. § 1341(d); 40 C.F.R. § 121.2(a)(4); 30 Tex. Admin. Code § 279.11(d)(2)(A)(ii). Such limitations and requirements become conditions on the permit. See 33 U.S.C.A. § 1341(d). But once a project has been granted a federal permit, it proceeds under the authority of that permit, not the state-issued water quality certification:

It seems clear to us that permits and certificates are two different breeds of animal. Black’s» Law Dictionary defines a certificate as a written assurance, or official representation, that some act has or has not been done, or some event occurred, or some legal formality has been complied with.... Black’s defines a permit as, in general, any document which grants a person the right to do something, a license or grant of authority to do anything-.,.. We note in this case that even if plaintiff had been certified, no construction [on the barge fleeting facility] could have begun until a [dredge-and-fill] permit was issued by the United States Army Corps of Engineers.

National Marine Serv. Inc., 76 Ill.Dec. 151, 458 N.E.2d at 558; accord Triska v. Department of Health & Envtl. Control, 292 S.C. 190, 355 S.E.2d 531, 534 (S.C.1987) (“permit” is not same as “certification”).

The Commission’s power to issue the section 401 certification is solely a creature of federal law. See Arnold Irrigation Dist. v. Department of Envtl. Quality, 79 Or.App. 136, 717 P.2d 1274, 1278 (1986), review denied, 301 Or. 765, 726 P.2d 377 (1986). As such, states are not authorized under the Clean Water Act to unilaterally revoke, modify, or amend a state water quality certification after the certification process for a federal permit is complete. See, e.g., Puerto Rico Sun Oil Co. v. United States Envtl. Prot. Agency, 8 F.3d 73, 80 (1st Cir.1993) (state agency’s characterization of its 401 certification as nonfinal did not affect procedural validity of federal permit); Keating v. Federal Energy Regulatory Comm’n, 927 F.2d 616, 624 (D.C.Cir.1991) (disputes over validity of section 401 certification are state matters so long as they precede issuance of federal permit); Triska, 355 S.E.2d at 534 (state lacks power to suspend or revoke section 401 certification after it is granted by agency and appeals process expires); see also Angus E. Crane, Who’s in Charge Here? An Analysis of the Enforcement of State Water Quality Certification Standards, 1 Wis. Envtl. L.J. 89, 102 (1994).

The Clean Water Act allows a state to revoke a prior certification

only if certain conditions are met. The first is timeliness: the state must notify the relevant federal licensing agency of its intention to revoke within 60 days of the time it is itself notified that a new license application is pending. The second is that the revocation be driven by some change in circumstances “since the construction license or permit certification was issued.” ... If either of these conditions is not met — if the state’s decision comes too late or if it is not pursuant to changed circumstances — then the attempted revocation is invalid as a matter of federal law and no further inquiry is needed.

Keating, 927 F.2d at 624 (citing 33 U.S.C.A. § 1341(a)(3)). The Clean Water Act allows a state to revoke a prior certification only within this specified time limit and only pursuant to these defined circumstances. Id.; see also Caribbean Petroleum Corp. v. United States Envtl. Prot. Agency, 28 F.3d 232, 235 (1st Cir.1994) (Puerto Rico’s water quality certification was incorporated into federal permit, although certification was still undergoing agency review, because commonwealth failed to stay certification before federal permit issued). If a state could revoke a prior certification at any time and for any reason, section 1341(a)(3) would be rendered meaningless. Keating, 927 F.2d at 624. In this case, the time for revocation of the Commission’s prior certification has expired. See 33 U.S.C.A. § 1341(a)(3).

Moreover, any attempt to modify the state certification is futile unless the authorization granted in the federal permit will be similarly modified:

Giving [the state agency] authority to revoke Certification after the Certification and appeals process is over serves no useful function and only breeds confusion; particularly in a case such as this where the Certification was revoked and after some five years had passed and where permits had already been issued by the Corps of Engineers and the Coastal Council. Even if [the state agency] had authority to revoke Certification in the instant case, it would be a futile act unless the permitting agencies subsequently suspended and revoked their respective permits.

Triska, 355 S.E.2d at 534. In Triska, the court also noted that if the state had concerns about changes in water quality, it should notify the permitting agencies so that they might review the permits. Id.

States that actually require a separate state authorization for dredging and filling activity typically call their authorization a “permit” and have unambiguous statutes and regulations requiring applicants to obtain a state dredge-and-fill permit in addition to the federal permit. See, e.g., Cal. Pub. Res.Code § 30600 (West Supp.2005) (state coastal development permit required); Conn. Gen.Stat. § 22a-361 (West Supp.2005) (state permit required for dredging or placement of fill); La.Rev. Stat. Ann. § 49:214.30 (West Supp.2005) (state coastal use permit required); N.Y. Envtl. Conservation Law § 24-0701 (West 1997) (state permit required for filling freshwater wetlands); Ohio Rev.Code Ann. § 1506.07 (West 1996) (state permit required for coastal erosion area); Va. Code Ann. § 62.1-44.15:5(D) (Michie 2004) (state permit required for draining or filling wetland); Sheridan v. Deep Lagoon Manna, 576 So.2d 771, 772 (Fla.Dist.Ct. App.1991) (marina applied for Chapter 403 Florida Statutes, dredge-and-fill permit and for certification of compliance with federal Clean Water Act); In re Appeal of Broad & Gales Creek Crnby. Ass’n, 300 N.C. 267, 266 S.E.2d 645, 645 (1980) (association sought North Carolina dredge-and-fill permit from Department of Natural Resources and Community Development to construct boat launching ramp). Two states have had the federal dredge-and-fill permitting process delegated to them under 33 U.S.C.A. § 1344(g), (h) (West 2001). See Environmental Protection Agency Approved State Programs, 40 C.F.R. §§ 233.70 (2004) (delegation to Michigan Department of Natural Resources), 233.71 (2004) (delegation to New Jersey Department of Environmental Protection and Energy).

Unlike these states, Texas does not have a dredge-and-fill permitting program independent of the federal process. An assertion that Texas has such a program is irreconcilable with the water code, which prohibits the Commission from issuing dredge-and-fill permits. Tex. Water Code Ann. § 26.027(d). The consistency review process is not a separate authorization either, as it is intended to “identify, address, and resolve consistency issues within the agencies’ existing permitting processes.” See 19 Tex. Reg. 7670 (emphasis added). Texas law consistently references the Commission’s “certification” within the context of the federal Clean Water Act permitting process. See, e.g., Tex. Nat. Res.Code Ann. § 33.2053(f)(6); 30 Tex. Admin. Code §§ 279.1 (2003), 279.2(a)-(b) (2003); 30 Tex. Admin. Code § 281.45(a)(2)(G).

The Cities rely on the following rule for the proposition that separate state approvals are required under the state coastal program:

Pending council review of an individual agency proposed action, no person may conduct activities authorized by the agency action that would irreparably alter or damage the [Coastal Natural Resource Area] identified in the applicable policy, except as otherwise provided by the Texas Administrative Procedure Act § 2001.054.

31 Tex. Admin. Code § 505.37 (2003). This section appears in a subchapter that discusses the Coastal Coordination Council’s review of proposed state agency actions. Id. Here, however, there is no “review pending” with the Coastal Coordination Council. The Council did not take the Cities’ appeal. There is no “proposed action” on the part of the Commission. The Commission completed its role when it issued a section 401 certification on December 16, 2003. Furthermore, there was no activity “authorized” by the Commission in this case. The section 401 certification does not authorize the Port to conduct any activity. Only the federal 404 permit authorizes the Bayport Project.

The fallacy of the Cities’ argument is particularly apparent when applied to a scenario in which the Commission waives its section 401 certification and the Corps issues a section 404 permit for a project in reliance on the state’s waiver. See 33 U.S.C.A. § 1341(a)(1); 30 Tex. Admin. Code § 279.2(4); see generally Environmental Def. Fund, Inc. v. Alexander, 501 F.Supp. 742, 771 (N.D.Miss.1980) (Corps issued permit after state agency affirmatively waived 401 certification). In that instance, under the Cities’ argument, the Port would be unable to proceed because the project lacks a separate “state authorization” from the Commission. But nothing in federal or Texas law would prevent the Port from proceeding legally with its project. See 33 U.S.C.A. § 1341(a)(1); 30 Tex. Admin. Code § 279.2(4).

Effect of State Court Ruling on Validity of This Section 401 Certification

The Cities’ post-submission letter brief states that they were unable to find any case where the appeal of a decision granting or denying a certificate of compliance with state water quality standards was ruled to be moot once a related federal action had been taken. Although it is an unpublished, decision, a case with parallel facts is cited in the Port’s brief. See Minnesota Ctr. for Envtl. Advocacy v. Minnesota Pollution Control Agency, 1998 WL 481933 at *1, 1998 Minn.App. LEXIS 953, at *2 (Minn.App.-August 18, 1998) (not designated for publication).

In that case, the Minnesota Center for Environmental Advocacy sought state court review of" the Minnesota Pollution Control Agency’s grant of section 401 certification to a project that received a federal dredge-and-fill permit. See id. State certification was a legal prerequisite for a federal permit to build a floodwater storage dam because its construction involved discharging fill into 1.7 acres of Minnesota’s wetlands. Id.

The Wild Rice Watershed District applied for a section 404 dredge-and-fill permit with the Corps in July 1992. Id. The Corps issued a public notice regarding the permit application in January 1995, describing the project and inviting public comment. Id. Thirteen months later, the Corps advised the Agency that the Corps considered the section 401 certification waived because the Agency had failed to take any certification action within one year of the public notice. Id. 1998 WL 481933 at *1, 1998 Minn.App. LEXIS 953, at *5; see also 33 U.S.C.A. § 1341(a)(1). The Corps issued a section 404 permit to the District in July 1997. Id. The Agency granted a section 401 certification in August 1997. Id.

The Center challenged the Agency’s section 401 certification, arguing that it was invalid because the Agency failed to follow its procedural rules and because the certification was arbitrary and capricious. Id. 1998 WL 481933, at *2, 1998 MinmApp. LEXIS 953, at *5. The District argued that the Center’s challenge to the certification was meaningless. Id. The court observed that the Corps granted the permit based on its determination that the state certification requirement had been waived. Id. The court found that

the [Agency’s] belated grant of certification had no impact on the previously issued section 404 permit, nor did it affect the District’s ability to go forward with the project. Any determination by this court as to the validity of the certification would, as a consequence, have no legal effect.... This court cannot grant effectual relief at this time. Relator’s appeal of the [Agency’s] 401 certification is, therefore, moot.

Id. 1998 WL at *2, 1998 Minn.App. LEXIS 953, at *5-6.

While the Minnesota court’s opinion is not binding upon this Court, its reasoning is sound. Like the appellants in the Minnesota case, the Cities sought state court review of a state agency’s 401 certification because of the agency’s alleged failure to follow its procedural rules. The project’s progress in this case is similarly authorized by a federal permit, not a state 401 certification. The time for the Commission to condition its certification or place additional “special conditions” on the Bayport Project has passed. See 16 U.S.C.A. § 1456(c)(3)(A); 33 U.S.C.A. § 1341(a)(1); 33 C.F.R. § 325.2(b)(l)(ii), (b)(2)(ii); 30 Tex. Admin. Code § 279.11.

The federal permit alone authorizes continued progress of the Bayport Project. The Cities cannot now alter the federal permit. The orders that the Cities sought from the district court (reversing the Commission’s determination that the federal permit to be issued to the Port would comply with the Commission’s water quality standards and be consistent with the Texas coastal zone management program) became moot upon issuance of the federal 404 permit because the Cities’ requested relief would not have had a practical legal effect on the controversy between the parties. From that point forward, the district court lacked jurisdiction to make any ruling concerning the validity of the Commission’s section 401 certification. See General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990) (judicial power does not embrace giving advisory opinions); Texas Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex.App.Austin 1998, no pet.) (declaratory judgment is only appropriate if justiciable controversy exists and will be resolved by declaration sought; justiciable controversy must be distinguished from advisory opinion, which is prohibited under both Texas and federal constitutions).

The Cities’ request for declaratory relief does not change the status of then-lawsuit. See IT-Davy, 74 S.W.3d at 855; Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260, 266-67 (Tex.App.-Austin 2002, no pet.). The trial court’s final judgment granted the Port’s motion and dismissed “all of [Cities’] claims for want of subject-matter jurisdiction” based on mootness. This final judgment, contrary to the Cities’ argument, included the Cities’ request for declaratory judgment. The Declaratory Judgment Act does not extend a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not confer jurisdiction on a court or change a suit’s underlying nature. IT-Davy, 74 S.W.3d at 855; Beacon Nat’l Ins. Co., 86 S.W.3d at 266-67. Thus, the declaratory relief the cities sought does not change the mootness of the Cities’ claims.

Exception to Mootness

The Cities also argue that a re-quést for declaratory judgment is not moot if it is likely to recur. An exception to the mootness doctrine exists for acts which are “capable of repetition yet evad[e] review.” OXY U.S.A., Inc., 789 S.W.2d at 571. This exception applies where the challenged act is of such short duration that the appellant cannot obtain review before the issue becomes moot. Id.

The Cities did not address the “evading review” portion of the exception. This dispute was not of such short duration that the Cities could not obtain review before the issue became moot. In fact, they might have prevented this case from becoming moot by diligently pursuing their injunctive relief hearing before the Corps issued the 404 permit and before commencement of construction on the Bayport Project. See Bayou Liberty Ass’n, Inc. v. United States Army Corps of Engineers, 217 F.3d 393, 398-99 (5th Cir.2000).

In Bayou Liberty, a homeowners’ association sued the Corps claiming that it issued a permit for construction of a retail complex in violation of the National Environmental Policy Act. Bayou Liberty Ass’n, Inc., 217 F.3d at 395. The homeowners sought a declaration defining the obligations of the Corps when evaluating permit applications for construction in wetlands. Id. at 396. Construction of the retail complex was completed. Id. The Court of Appeals for the Fifth Circuit found that the homeowners’ request for declaratory relief was moot and constituted an advisory opinion because the declaration could not affect the rights of the litigants in the case before them. Id. at 397-98. The court also found that the “capable of repetition yet evading review” exception did not apply:

We are not convinced that ... the period of time between the issuance of a Corps permit and substantial completion of construction will be too short to allow a challenge to the permit to be fully litigated. Although there may be a limited span of time between the issuance of the permit and completion of the construction, there are methods available to halt the construction and receive full review of the Corps procedures.... [A] plaintiff may apply for a preliminary or permanent injunction which would suspend a Corps’ permit, thus halting construction. A plaintiff may also seek a stay or injunction pending appeal to halt construction while the appeal is fully considered.

Id. at 398-99.

There is no reason the Cities could not pursue injunctive relief in a future case; thus, the Commission’s 401 certification does not inherently evade review. For this reason and on these facts, we find that the “capable of repetition yet evading review” exception to the mootness doctrine is inapplicable to this case.

CONCLUSION

We conclude that the Port was not required to obtain state authorization for the Bayport Project from the Commission independent of the federal dredge-and-fill permit that the Port obtained from the Corps. We further conclude that the Cities’ claims against the Commission are moot because a state court’s ruling on the validity of the Commission’s section 401 certification cannot have any legal effect on the Bayport Project and there is no applicable exception to the mootness doctrine. Accordingly, we affirm the district court’s judgment.

      . We will refer to the cities of Shoreacres, Taylor Lake Village, and Seabrook and the Galveston Bay Conservation and Preservation Association collectively as “Cities.”

      . We grant the Port’s unopposed motion requesting that this Court take judicial notice of a certified copy of permit number 21520 issued by the Galveston District of the United States Army Corps of Engineers to the Port of Houston Authority, authorizing construction of the Bayport Project.

      . The record does not reflect the Council’s decision on the requested review but the parties agree that the Council did not take the appeal. The Port and the Commission assert that the Cities were unable to secure the votes of three council members necessary for the Council’s review. See Tex. Nat. Res.Code Ann. § 33.205(c)(3) (West Supp.2004-05). The Cities claim that they "do not know why” the Council did not take their appeal.

      . The City of Shoreacres, City of Taylor Lake Village, and the Galveston Bay Conservation and Preservation Association sued the Corps in federal court challenging its issuance of the Bayport Project permit. City of Shoreacres v. Waterworth, 332 F.Supp.2d 992, 996 (S.D.Tex.2004). The Port intervened. Id. The court granted summary judgment in favor of the Corps and the Port. Id. at 1023.

      . The Commission’s ruling was based on its intent to deny the motion to overturn for lack of jurisdiction, which it deemed equivalent to "declining to take any action” on the motion.

      . The original petition in the second suit states that it is filed "as a protective measure” to ensure the filing of a petition within thirty days of the Commission’s declined action on the motion to overturn the section 401 certification. See Tex. Water Code Ann. § 5.351(b) (West 2000).

      . In this case, the Coastal Coordination Council also notified the Port that the Commission would be "solely responsible for determining the project’s consistency with the goals and policies of the [coastal management program]” and that "[t]his determination [would] accompany the [Commission’s] section 401 certification.”

      . As noted earlier, the Commission issued its section 401 certification without conditions, but it had previously added several special conditions to the project to ensure its conformity with Texas environmental policies,


source: Caselaw Access Project

author: Justice CASTILLO.

license: Public Domain

text:
    EXITO ELECTRONICS., CO., LTD., Appellant, v. Virginia TREJO, et al., Appellees.
    No. 13-02-368-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 16, 2005.

      Rick Lee Oldenettel, Jefferson H. Read, Oldenettel & Associates PC, Houston, for appellant.
    Carol A. Swanda, Steven H. Beadles, Law Office of Steven H. Beadles, Dallas, Frank Sabo, Sweetman, Skaggs & Lawler, LLP, Edinburg, Jose E. Garcia, Garcia & Villarreal, Mark A. Cantu, Juan A. Gonzalez, Law Office of Mark A. Cantu, Michael Zanca, Roerig, Oliveira & Fisher, L.L.P., Mike Mills, Atlas & Hall, McAllen, Joe W. Meyer, Nathan A. Steadman, Meyer, Knight & Williams, Byron C. Keeling, Ruth B. Downes, Robert Alan York, Holman & Keeling & York, Houston, David M. Prichard, Brendan K. McBride, Dwayne Day, Prichard, Hawkins & Young, San Antonio, Jaime A. Drabek, Drabek & Associates, Patricia Kelly, Adams & Graham, Harlingen, for appellees.
    Before Justices HINOJOSA, YÁÑEZ and CASTILLO.
   OPINION

Opinion by

Justice CASTILLO.

This is an interlocutory appeal from the trial court’s order denying the special appearance of Exito Electronics Company, Ltd. (“Exito-Taiwan”), appellant. Appel-lees include Virginia Trejo, individually and as representative of the estate of Pau-lino Trejo, Nadia Guadalupe Salvador Guzman, individually, and Aurelio Salvador Florez, individually and as representative of the estate of Juana Zuniga, deceased, and as next friend of Maria de la Luz Crecencia Salvador Guzman, a minor (together, “Trejo”). Appellees also include Pacific Eleetricord Co., Inc. (“Pacific Elec-tricord”) and Woods Industries, Inc. (“Woods”). We affirm the trial court’s denial of the special appearance as to Exi-to-Taiwan and reverse as to Exito-Philip-pines.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

On Christmas Day in 1998, Paulino Tre-jo and Juana Zuniga died in a house fire in Hillsboro, Texas. Relatives of the victims filed suit on September 9, 1999, alleging the fire was caused by a defective extension cord. Original defendants included numerous alleged distributors. An amended petition filed December 22, 2000, included Exito-Taiwan as a defendant. It alleged that Exito-Taiwan had manufactured the extension cord in issue and that, although Exito-Taiwan was a foreign corporation organized under the laws of Taiwan, it conducted business in Texas. Tre-jo sought service on Exito-Taiwan under rule 108a(l)(e) of the Texas Rules of Civil Procedure and the Texas long-arm statute, as provided in sections 17.044 and 17.045 of the Texas Civil Practices and Remedies Code. <See Tex.R. Civ. P. 108a(l)(c); Tex. Crv. PRAc. & Rem.Code Ann. §§ 17.044, 17.045 (Vernon 1997 and Supp.2004-05).

On March 5, 2001, Exito-Taiwan timely filed its special appearance and accompanying affidavits, objecting to jurisdiction being exercised over it by a Texas court. Trejo, Pacific Eleetricord, and Woods all opposed the special appearance, contending that (1) special and general personal jurisdiction existed over Exito-Taiwan, and (2) an exercise of that jurisdiction would not offend traditional notions of fair play and substantial justice. The parties engaged in discovery related to the special appearance, including the deposition of Ex-ito-Taiwan’s corporate representative, Mr. Wu. A hearing was held June 3, 2002, at which the parties addressed evidence developed in this process. The trial court’s order denying Exito-Taiwan’s special appearance was entered June 19, 2002, and provided “that sufficient minimum contacts exist to create both specific arid general jurisdiction over Exito[-Taiwan] and Exi-to-P[hilippines], and that the exercise of jurisdiction over Exito[-Taiwan] and Exi-to-P[hilippines] will not offend the traditional notions of fair play and substantial justice.” Specific findings provide as follows:

a. Exito has voluntarily submitted to the jurisdiction of a Texas court by filing a general denial in Cause No. 99-4552; Quilicot v. Exito, Ltd., et al.; in the 205th Judicial District Court of El Paso County, Texas.
b. The lawsuit in El Paso, Texas involves an extension cord allegedly manufactured by Exito which was allegedly defective and caused a fire.
c. Exito has and still does systematically and continuously engage in business with a Texas resident, Inter-trade Industries, in Fort Worth, Texas from as early as 1995.
d. Exito exclusively manufactures SPT-2, 16AWG house-hold extension cords for sale in the United States and sells all of its cords to American companies.
e. Exito has the expectation that many of the SPT-2, 16AWG extension cords will reach Texas consumers.
f. Exito is aware that its SPT-2, 16AWG extension cords are shipped directly to Texas and has intentionally directed its cords to Dallas/Fort Worth airport in Texas via airfreight.
g. Exito has knowingly shipped more than five million house-hold extension cords to Texas in 1998.
h. Exito has specifically marketed goods, including SPT-2, 16AWG house-hold extension cords, to Texas residents via the Worldwide Web.
i. Exito has entered into contracts with insurance carriers to defend itself in lawsuits throughout the United States and in Texas.
j. The traditional notions of fair play and substantial justice are not offended by litigating this case in Texas because Exito has previously defended itself in a Texas Court, The State of Texas has a significant interest in resolving this action for the safety of its consumers; Plaintiffs and the other Defendants have a significant interest in resolving this case in Texas; this lawsuit may be more efficiently resolved in Texas and no evidence suggests that another forum is more appropriate to resolve this matter;
[k]. Exito’s officers and directors have traveled to Texas on behalf of Exi-to and Exito-P for both business and pleasure. Exito and Exito-P share officers, directors and/or shareholders.
[l]. Exito-P manufactures SPT-2, 16AWG house-hold extension cords . authorized and approved by Underwriters Laboratory for use in the United States and in Texas and Exito is the exclusive client of Exi-to-P.
As a result of these specific findings and the other evidence presented, the Court finds that it has specific and general jurisdiction over Exito and Exito-P and that the exercise of jurisdiction over Ex-ito and Exito-P will not offend the traditional notions of fair play and substantial justice.
ORDERED that the Rule 120a Special Appearance of Defendants EXITO ELECTRONICS, CO., LTD., and EXI-TO ELECTRONICS CO., LTD.— PHILIPPINES objecting to the jurisdiction of this Court are in all respects DENIED.

This interlocutory appeal followed.

On original submission, we held that Ex-ito-Taiwan waived its special appearance by filing Rule 11 agreements and engaging in discovery before obtaining a determination on the special appearance. Exito Elecs. v. Trejo, 99 S.W.3d 360, 373 (Tex.App.-Corpus Christi 2003), rev’d and remanded, 142 S.W.3d 302 (Tex.2004). We also determined Exito-Taiwan’s affidavits were fatally defective. Id. The Supreme Court reversed, concluding that we erroneously found waiver and that defective affidavits or verifications do not concede jurisdiction. Exito Elecs. v. Trejo, 142 S.W.3d 302, 308 (Tex.2004). Consistent with the mandate of the Supreme Court, we consider the merits of Exito-Taiwan’s special appearance.

II. THE STANDARD OF REVIEW

Whether a court has personal jurisdiction over a nonresident defendant is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). However, the trial court frequently resolves questions of fact before deciding the jurisdiction question. Id. If a trial court enters an order denying a special appearance and also issues findings of fact and conclusions of law, the nonresident defendant may challenge the fact findings on legal and factual sufficiency grounds. Id. Unchallenged fact findings are binding on the appellate court. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). We conduct a de novo review when applying the law to the facts. El Puerto de Liverpool, S.A. de C.V. v. Servi Mundo Llantero S.A. de C.V., 82 S.W.3d 622, 639 (Tex.App.-Corpus Christi 2002, pet. dism’d w.o.j.) (op. on rehearing) (en banc). If an order on a special appearance is based on undisputed or otherwise established facts, such as where the nonresident defendant does not challenge the trial court’s findings of fact, the exercise of personal jurisdiction is a question of law we review de novo. Happy Indus. Corp. v. Am. Specialties, Inc., 983 S.W.2d 844, 848 (Tex.App.-Corpus Christi 1998, pet. dism’d w.o.j.).

Exito-Taiwan asserts that none of the “factors” in the trial court’s order “are sufficient for a finding of either specific or general jurisdiction.” Rather than challenging specific findings, Exito-Taiwan focuses its argument on the absence of sufficient minimum contacts with Texas to justify an exercise of personal jurisdiction over it by the Texas courts. We interpret Exito-Taiwan’s assertion as a challenge to the trial court’s conclusions of law. Tex. R.App. P. 38.1(e). We review for correctness the legal conclusions drawn by the trial court from the established facts. BMC, 83 S.W.3d at 794. If we determine that a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Id.

III. ISSUES ON APPEAL

In the two following issues, Exito-Tai-wan challenges the trial court’s ruling denying its special appearance. It argues that the trial court erred in finding (1) specific jurisdiction over Exito-Taiwan, and (2) general jurisdiction over Exito-Taiwan.

IV. PERSONAL JURISDICTION

A. Minimum Contacts with the Forum State

Texas courts may assert personal jurisdiction over a nonresident defendant only if such jurisdiction is authorized by the Texas long-arm statute, and is consistent with federal and state standards of due process. See Tex. Civ. PRAC. & Rem. Code Ann. §§ 17.001-17.093 (Vernon 1997 and Vernon Supp.2004-05); Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002); Guardian Royal Exch. Assurance, 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.” Coleman, 83 S.W.3d at 806 (citing Guardian Royal, 815 S.W.2d at 226). The statute lists particular acts that constitute “doing business,” but also provides that “other acts” of the nonresident may place him within the “doing business” requirement. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990).

Jurisdiction is proper if a nonresident defendant has established “minimum contacts” with Texas and maintenance of the suit will not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1940). The purpose of minimum-contacts analysis is to protect the defendant from being haled into court when its relationship with Texas is too attenuated to support jurisdiction. Coleman, 83 S.W.3d at 806; Schlobohm, 784 S.W.2d at 357. Focus is therefore upon the defendant’s activities and expectations. Coleman, 83 S.W.3d at 806. This analysis requires that the defendant “purposefully avail” itself of the privilege of conducting activities in Texas, thus invoking the benefits and protections of Texas laws, Id.; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), such that the defendant could reasonably anticipate being called into a Texas court. Coleman, 83 S.W.3d at 806; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Jurisdiction will not attach if contacts are random, fortuitous, or attenuated. Coleman, 83 S.W.3d at 806; Guardian Royal, 815 S.W.2d at 226. The quality and nature of the contacts, rather than their number, are the focus of this analysis. Coleman, 83 S.W.3d at 806; Guardian Royal, 815 S.W.2d at 230 n. 11.

B. Specific Jurisdiction

A nonresident defendant’s minimum contacts with Texas may confer either general or specific jurisdiction. BMC, 83 S.W.3d at 795. Activities of the defendant in the forum may be isolated or disjointed, but where the cause of action in issue arises from a particular activity, jurisdiction attaches and is said to be specific. Id. at 796; Schlobohm, 784 S.W.2d at 357; Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 n.8 (1984). Even a single act or event, if it creates or gives rise to the plaintiffs cause of action, may constitute sufficient minimum contact to support the exercise of specific jurisdiction. Burger King, 471 U.S. at 476 n. 18, 105 S.Ct. 2174; Ahadi v. Ahadi, 61 S.W.3d 714, 719 (Tex App.-Corpus Christi 2001, pet. denied). This requirement for a “substantial connection” between the plaintiff’s cause of action and the defendant’s contacts means that those contacts, both with the litigation and the forum, must be meaningful, not “random, fortuitous, or attenuated.” Ahadi, 61 S.W.3d at 719. The substantial connection between the nonresident defendant and the forum state necessary for a finding of minimum contacts must come about by action or conduct of the nonresident defendant purposefully directed toward the forum state. Guardian Royal, 815 S.W.2d at 226. An element of foreseeability is also implicit in the “substantial connection” requirement; a nonresident defendant should be able to reasonably predict that it may be subject to personal jurisdiction in the forum state. Ahadi, 61 S.W.3d at 719-20. However, “foreseeability” is not necessarily determinative when considering whether the nonresident defendant purposefully established “minimum contacts” with the forum state. Guardian Royal, 815 S.W.2d at 226-27.

C.General Jurisdiction

Where the defendant’s activities in the forum are continuing and systematic, jurisdiction may be proper without a relationship between the defendant’s particular act and the cause of action in issue. In these cases, jurisdiction is said to be general. BMC, 83 S.W.3d at 796; Guardian Royal, 815 S.W.2d at 228; Schlobohm, 784 S.W.2d at 357. “General jurisdiction requires a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction.” BMC, 83 S.W.3d at 797 ((citing CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996) (orig.proceeding); Guardian Royal, 815 S.W.2d at 228)). A nonresident must have conducted more substantial activity in the forum state for the state to exercise general jurisdiction than for it to exercise specific jurisdiction. CSR, 925 S.W.2d at 595.

D.The Burden of Proof

While a plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the long-arm statute, Coleman, 83 S.W.3d at 807 (citing McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965)), upon the filing of a special appearance the nonresident defendant assumes the burden to negate all bases of personal jurisdiction alleged by the plaintiff. Coleman, 83 S.W.3d at 807; CSR, 925 S.W.2d at 596; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985) (per curiam). In the absence of sufficient jurisdictional allegations by the plaintiff, the defendant meets its burden of negating all potential bases of jurisdiction by presenting evidence that it is a nonresident. M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n. 2 (Tex.App.-Corpus Christi 1999, no pet.); KPMG, 847 S.W.2d at 634.

E.Sufficiency of Jurisdictional Allegations

Exito-Taiwan argues that because Trejo did not plead facts adequate to establish personal jurisdiction over the corporation in Texas, Exito-Taiwan met its burden in its special appearance by proving its nonresidency. To the contrary, the amended pleading joining Exito-Taiwan as a defendant alleged that the company was doing business in Texas and had manufactured the allegedly defective extension cord which was distributed in Texas. We hold that Trejo’s pleadings were sufficiently clear with regard to jurisdictional alie-gations related to Exito-Taiwan. See El Puerto, 82 S.W.3d at 629 (holding that allegations of doing business in Texas and commission of tort in Texas sufficiently alleged personal jurisdiction). Exito-Tai-wan therefore bears the burden to negate all potential bases of jurisdiction. M.G.M. Grand, 8 S.W.3d at 408 n. 2; KPMG, 847 S.W.2d at 634.

F. Jurisdiction over Exito-Philippines

Exito-Philippines is not a party to the underlying suit. It was never named as a party, never served with process, and never appeared in the suit. Exito-Taiwan is the entity that was served and filed a special appearance.

The trial court’s order nevertheless recites that it “finds sufficient minimum contacts exist to create both specific and general jurisdiction over Exito and Exito-P and that the exercise of jurisdiction over Exito and Exito-P will not offend the traditional notions of fair play and substantial justice.” That order continues:

[T]he Court finds that it has specific and general jurisdiction over Exito and Exi-to-P and that the exercise of jurisdiction over Exito and Exito-P will not offend the traditional notions of fair play and substantial justice ... It is ORDERED that the Rule 120a Special Appearance of Defendants EXITO ELECTRONICS, CO., LTD. and EXITO ELECTRONICS, CO., LTD.-PHILIPPINES objection to the jurisdiction of this Court are in all respects DENIED.

Lack of jurisdiction is fundamental error and may be raised for the first time before this court. Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex.1991) (per curiam). Although no party has raised this issue in this appeal, courts nevertheless have the power to reverse for an unassigned error that is truly fundamental, and such power need not be expressly conferred by statute or rule. McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957) (per curiam).

“In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance.” Tex.R. Civ. P. 124; Mapco, 817 S.W.2d at 687. Further, “judgment may not be granted in favor of [or against] a party not named in the suit as a plaintiff or a defendant.” Mapco, 817 S.W.2d at 687 (citing Fuqua v. Taylor, 683 S.W.2d 735, 738 (Tex.App.-Dallas 1984, writ ref'd n.r.e.)). In this case, as in Map-co, the parties’ claims identified only Exi-to-Taiwan as a party, and service was had only upon that entity. Mapco, 817 S.W.2d at 687. Each answer was filed only on behalf of Exito-Taiwan and there is no indication in the record that Exito-Philip-pines waived service of process. Id. Generic reference to “Exito” or to “Exito-P,” without more, is not sufficient to place Exito-Philippines before the court. Id. Therefore, to the extent the trial court’s order purports to be binding against Exi-to-Philippines, we reverse that portion, finding it to be in error and without effect.

V. ANALYSIS — APPLICATION OF LAW TO FACTS

A. Specific Jurisdiction

Appellees argue that specific jurisdiction attaches because Exito-Taiwan had sufficient specific contacts with Texas, namely, shipments of the defective product either to entities in Texas, or made with the reasonable expectation that the product would enter Texas. Appellees contend that the requisite reasonable expectation arises when a significant volume of products are shipped to the forum state.

A defendant’s delivering of its product into the stream of commerce with the expectation that the product will enter the forum state will ordinarily satisfy the due process requirement of minimum contacts, so as to afford that state personal jurisdiction over the defendant. Keen v. Ashot Ashkelon, Ltd., 748 S.W.2d 91, 93 (Tex.1988), overruled in part on other grounds; Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 586-87 (Tex.1999); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 773-74, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); see also Oswalt v. Scripto, Inc., 616 F.2d 191, 199-200 (5th Cir.1980); Kawasaki, 699 S.W.2d at 201.

To meet its burden to negate all potential bases of jurisdiction, Exito-Taiwan tendered a verification and affidavits, as well as documentary evidence, as follows: (1) Courtney Duke verified that she was “authorized to make this verification,” all facts set out in the special appearance were within her personal knowledge, and were true and correct; and (2) the affidavit of Juan Kao, a director of Exito-Tai-wan, who stated: (a) Exito-Taiwan was not a resident of Texas and did not maintain a registered agent for service in Texas; (b) Exito-Taiwan had no officers, agents, employees or sales representatives in Texas; (c) Exito-Taiwan neither trained nor solicited employees in Texas; (d) Exi-to-Taiwan did not place advertisements in Texas; (e) Exito-Taiwan owns no real or personal property in Texas; (f) Exito-Tai-wan has never had any post office boxes, bank accounts, telephone number or other tangible assets in Texas; (g) Exito-Taiwan did not make or solicit any business transaction in Texas with any of appellees; (h) Exito-Taiwan did not commit any acts or consummate any transactions relating to appellees’ causes of action as reflected in the seventh amended petition; and (i) the causes of action did not arise out of any contact initiated by Exito-Taiwan within Texas.

In response, appellees tendered evidence to establish either specific or general jurisdiction over Exito-Taiwan.

1. Knowledge That Ultimate Destination of Shipments Is Texas

The evidence reflects that the same or similar extension cords were sold by Exito-Taiwan to.various companies in the United States, including General Electric Lighting (“GE Lighting”), Woods, and Pacific Electricord. Extension cords filling orders placed by Pacific Electricord were shipped free-on-board (“FOB”) to Los Angeles, California. Shipments to Woods similarly were directed to locations outside of Texas. Exito-Taiwan did ship numerous extension cords to DFW Airport, Texas, to fill orders placed by GE Lighting. The ultimate destination for these cords remained GE’s address at DFW Airport; however all cords were shipped “FOB” to Manila, The Philippines. Title transferred at the FOB destination.

Appellees assert that, because GE Lighting’s orders originated in Fort Worth, Texas, and the ultimate destination of the shipments was DFW Airport, Exito-Taiwan necessarily had the expectation that the products would reach Texas. Ap-pellees further contend that simply shipping such large volumes of the product to distributors in the United States is sufficient to' raise the general expectation that the product will reach Texas consumers, such that Exito-Taiwan purposefully availed itself of the Texas market. However, it is the quality and nature of the contacts, rather than their number, which must remain the focus of this analysis. Coleman, 83 S.W.3d at 806; Guardian Royal, 815 S.W.2d at 230 n. 11.

In his deposition, Mr. Wu agreed that large numbers of cords were purchased by companies in the United States. Exito-Taiwan is aware that these cords were designed for the United States power supply and that the cords sold to Pacific-Electricord, Woods, and GE Lighting are sold to United States consumers. The evidence reflects that several million extension cords were shipped to GE Lighting in Texas during the period in question. Mr. Wu testified that he did not know that many cords are ultimately sold to Texas consumers, that being the purchaser’s internal concern, but that using “common sense” he could guess that some of the products are eventually sold in Texas. He also testified that Exito-Taiwan delivers all its products to Manila, The Philippines, and that all shipping arrangements from there are made by each individual purchasing company. While Exito-Taiwan is aware that GE Lighting has many of its orders shipped from Manila to DFW Airport, all business dealings between Exito-Taiwan and GE took place either in Taiwan or in Cleveland, Ohio. Payments are wire-transferred to Taiwan.

In Ashkelon, the court noted that a “defendant’s delivering of its product into the stream of commerce with the expectation that the product will enter the forum state will ordinarily satisfy the due process requirement of minimum contacts so as to afford that state personal jurisdiction over the defendant.” Ashkelon, 748 S.W.2d at 93. The Ashkelon court distinguished the situation faced in Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 107-08, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion), where Asahi never contemplated that sale of its component part (the tire valve) to a Taiwanese company would subject it to lawsuits in California. Ashkelon, 748 S.W.2d at 93. However, a nonresident’s mere awareness that its products might end up in the forum state is not enough to show that it purposely availed itself of the market of that forum state. CMMC v. Salinas, 929 S.W.2d 435, 438 (Tex.1996) (citing Asahi 480 U.S. at 110-11, 107 S.Ct. 1026). A “substantial connection between the defendant and the forum state [is] necessary for a finding of minimum contacts.” CMMC, 929 S.W.2d at 438.

The “substantial connection” between the defendant and the forum State ... must come about by an act of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.

Id. (emphasis in original) (citing Asahi, 480 U.S. at 110-12, 107 S.Ct. 1026). There is no direct evidence here that Exito-Tai-wan’s product would be delivered to Texas retail stores or that it knew Texas consumers would purchase the cords. There is further no evidence in this case to track the number of Exito-Taiwan’s products sold in Texas or that sales were regularly made by GE Lighting to retailers or consumers in Texas. There is no evidence of the other factors identified in CMMC. See CMMC, 929 S.W.2d at 438.

In Ho Wah Genting Kintron Sdn Bhd v. Leviton Mfg. Co., 163 S.W.3d 120, 131 (Tex.App.-San Antonio, 2005, no pet.), evidence reflected that, much like here, shipments were sent FOB to Malaysia. HWG Kintron argued (much as Exito-Taiwan does here) that it did not participate in or control any decision to ship its products to any ultimate destination in Texas. The court noted the controlling issue under the stream-of-commerce doctrine is the “reasonable expectation” that the product will be sold in Texas, not the “right of control.” Id. (citing Kawasaki, 699 S.W.2d at 201). However, in Kintron, evidence established that the company was aware its shipments were sent directly to Texas retailers, it forwarded invoices directly to Texas retailers, and it had letters of credit with Texas companies. Kintron, 163 S.W.3d at 126. Any contacts are more attenuated here.

We also note S.P.A. Giacomini v. Lamping, 42 S.W.3d 265, 273 (Tex.App.Corpus Christi 2001, no pet.), in which a gas valve was sold to distributors in the United States but not to any Texas residents. Giacomini, an Italian corporation, had no offices in Texas, no property or bank accounts, no contracts with Texas parties. Id. However, large volumes of product were forwarded “FOB” to the Port of Houston. Id. Title therefore transferred in Texas. See Robinson & Martin v. Houston & T.C.R. Co, 105 Tex. 185, 146 S.W. 537, 538 (1912). The Gia-comini court observed that it was. not a ease of “ ‘placement of product into the stream of commerce, without more.’ ... Giacomini ships mass quantities of its products to a distributor in Texas, fully aware that the distributor will be marketing significant quantities to customers in Texas.” Giacomini, 42 S.W.3d at 273 (citing Asahi, 480 U.S. at 112, 107 S.Ct. 1026). Therefore, jurisdiction did attach. Here, unlike in Giacomini, large volumes of products were not shipped FOB a Texas destination. We have been directed toward no evidence that the products are directed specifically to Texas consumers.

In CMMC, a French manufacturer shipped its allegedly defective wine-press from a New York equipment distributor FOB the Port of Houston. CMMC, 929 S.W.2d at 439. This single contact with Texas was deemed insufficient to cause jurisdiction to attach even under a liberal view of the stream of commerce doctrine. Id. at 438. While the situation before us is not restricted to an “isolated” event, CMMC clearly provides that where there is no evidence that a company designs products for use in the particular state, engages in. special efforts to market them here, or takes other actions to purposely avail itself of that market, jurisdiction does not easily attach. Id. at 439. While under specific jurisdiction, even one act by a defendant can support jurisdiction, that act must still be purposefully directed at the forum state so that the defendant could foresee being haled into court there. Id.

We remain mindful that it is the quality and nature of the contacts, rather than their number (or the number of individual products ultimately shipped to the forum state), that must be the focus of this analysis. Coleman, 83 S.W.3d at 806; Guardian Royal, 815 S.W.2d at 230 n. 11. Exito-Taiwan deliberately structured its business so that title to its goods transferred at foreign or other state ports, even though it knew that the ultimate destination of many cords was GE Lighting’s warehouse at DFW Airport, Texas. In order for specific jurisdiction to attach, there must be a substantial connection between Exito-Taiwan and Texas resulting from action or conduct of the nonresident defendant purposefully directed toward the forum state. Guardian Royal, 815 S.W.2d at 226. While foreseeability is implicit in the “substantial connection” requirement, Ahadi, 61 S.W.3d at 719-20, it is not necessarily determinative of whether the nonresident defendant purposefully established “minimum contacts” with the forum state. Guardian Royal, 815 S.W.2d at 226-27. We conclude that the mere knowledge that the product would ultimately reach Téxas, when coupled with the deliberate structuring of business to avoid purposeful contact with Texas, is insufficient in itself to constitute “minimum contacts” between Exito-Taiwan and Texas that will trigger specific jurisdiction. “A manufacturer cannot fairly be expected to litigate in every part of the world where its products may end up; its contact with the forum must be more purposeful.” CMMC, 929 S.W.2d at 440.

We therefore examine the other arguments raised by appellees to determine if those other factors will trigger specific jurisdiction.

2. The Indemnification Obligation

Appellees next argue that Exi-to-Taiwan purposefully directed its activities to Texas when it agreed to indemnify Pacific Electricord and Woods in the event of litigation wherever it might arise, including in Texas. Pacific Electricord’s terms and conditions, which are part of its purchase orders, require that Exito-Tai-wan secure insurance to indemnify Pacific Electricord. The first insurance certificate in evidence is issued by INA to Exito-Taiwan, dated February 7, 1998, and is directed to Pacific Electricord. It reflects that products liability insurance for Exito-Taiwan and Exito-Philippines is provided for the policy territory of the U.S.A. and Canada. Jurisdiction may attach where a party enters into a contract with foreseeable economic effects in Texas. Commonwealth Gen. Corp. v. York, 141 S.W.3d 840, 847-48 (Tex.App.-Corpus Christi 2004, pet. filed). However, the contract in issue here, with the requirement for insurance and indemnification, does not on its face contemplate lawsuits in Texas and does not reflect a foreseeable application in Texas as clearly as that in York. Id. In Koll Real Estate Group, Inc. v. Purseley, 127 S.W.3d 142, 147 (Tex.App.-Houston [1st Dist.] 2003, no pet.), the court observed that while an indemnification agreement certainly contemplates the possibility of litigation, it does not represent the sort of purposeful direction of activities toward the forum state as contemplated by the Supreme Court in Asahi, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92. Koll, 127 S.W.3d at 147. Specific jurisdiction could not arise solely from the existence of such an agreement. Here, while it is true that the Trejo’s cause of action and Pacific Electricord’s assertion of indemnity based on that suit are directly related, the cause of action does not arise out of that indemnification agreement or contact. See id. at 148; Guardian Royal, 815 S.W.2d at 227-28 (citing Helicopteros, 466 U.S. at 417, 104 S.Ct. 1868; World-Wide Volkswagen, 444 U.S. at 298, 100 S.Ct. 559). Therefore, specific jurisdiction will not attach on this basis.

3. Advertising on the World-Wide Web

Appellees argue that Exito-Taiwan purposefully availed itself of the Texas market by advertising in Texas via the worldwide web.

“Internet use is characterized as falling within three categories on a sliding scale for purposes of establishing personal jurisdiction.” Reiff v. Roy, 115 S.W.3d 700, 705 (Tex.App.-Dallas 2003, pet. denied) (citing Michel v. Rocket Eng’g Corp., 45 S.W.3d 658, 677 (Tex.App.-Fort Worth 2001, no pet.)). At one end of the scale are websites clearly used for transacting business over the internet, such as entering into contracts and knowing and repeated transmission of files of information, which may be sufficient to establish minimum contacts with a state. Reiff, 115 S.W.3d at 705. On the other end of the spectrum are “passive” websites that are used only for advertising over the Internet. Id.

Passive websites are not sufficient to establish minimum contacts éven though they are accessible to residents of a particular state. Id. at 706; Michel, 45 S.W.3d at 677; see also Hitachi Shin Din Cable, Ltd. v. Cain, 106 S.W.3d 776, 786 (Tex.App.-Texarkana 2003, no pet.); Jones v. Beech Aircraft Corp., 995 S.W.2d 767, 772 (Tex.App.-San Antonio 2004; pet. dism’d w.o.j.), overruled on other grounds, BMC Software Belgium, NV. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Gessmann v. Stephens, 51 S.W.3d 329, 339 (Tex.App.Tyler 2001, no pet.).

In Mink v. AAAA Dev. LLC., 190 F.3d 333, 336 (5th Cir.1999), the Fifth Circuit Court of Appeals characterized a website as “passive” and insufficient to confer jurisdiction, absent other contacts, where the customer could send information to the host but there was no opportunity for response by the host computer. See Michel, 45 S.W.3d at 677-78 (citing Mink, 190 F.3d at 336). The Mink court further held that the fact that the website contained an email link did not change its decision. Id.

Exito-Taiwan’s website is not interactive. It identifies catalogue items and provides contact information so that potentially interested customers may contact Exito-Taiwan for further information. It does not provide for the exchange of any information between Exito-Taiwan and any customer. We conclude that Exito-Taiwan’s website is “passive” advertising via the internet and is not a purposeful activity directed toward residents of this state. See Michel, 45 S.W.3d at 678; Mink, 190 F.3d at 336. As such, it is insufficient to trigger either specific or general jurisdiction. Id.

4. Visits by Exito-Taiwan Personnel to Texas

The trial court made a finding that Exito-Taiwan’s officers and directors have traveled to Texas on behalf of Exito for both business and pleasure. The sole evidence of this travel is contained in Mr. Wu’s deposition, in which he concedes he took a vacation to Texas one time and considered travel to Mexico to explore the potential for setting up business relations in that country. He denied conducting any business on behalf of Exito-Taiwan in Texas, and the record contains no evidence to controvert this testimony. To the extent this finding may have been relied upon to reach the trial court’s conclusion of jurisdiction, we find this evidence insufficient to justify either special or general jurisdiction over Exito-Taiwan.

5. Appearing and Failing to Refute Jurisdiction in a Separate Lawsuit

Appellees argue that Exito-Taiwan failed to object to jurisdiction over it in separate litigation initiated in El Paso, Texas. Appellees contend that Exito-Tai-wan’s defending itself in that litigation constituted a purposeful direction of business activities in Texas, such that specific jurisdiction should attach.

That Exito-Taiwan failed to contest jurisdiction in the El Paso litigation will not preclude its challenge to jurisdiction. Case law cited by Exito-Taiwan to address this argument deals with the situation where a prior lawsuit is initiated by the foreign corporation. See Primera Vista v. Banca Serfin, 974 S.W.2d 918, 926 (Tex.App.-El Paso 1998, no writ). Such is not the issue here, where Exito-Taiwan has undertaken no affirmative efforts to avail itself of Texas law to pursue claims on its behalf. We conclude that specific jurisdiction does not attach on this basis.

B. General Jurisdiction

Appellees argue that general jurisdiction may attach because Exito-Tai-wan engaged in continuous and systematic contacts with the state of Texas by selling other types of products to Texas purchasers, specifically to Intertrade Industries (“Intertrade”).

We are mindful of the Texas Supreme Court’s decision in Coleman, 83 S.W.3d at 810. There, the plaintiff sought jurisdiction over a nonresident defendant who had sold material, equipment and technology to Iraq that was used to create biological and chemical weapons. The focus was on establishing general personal jurisdiction, based upon numerous and voluminous sales of other products to Texas residents. Noting that activities inside or outside of Texas must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court, Coleman, 83 S.W.3d at 806, the court found that when a nonresident defendant purposefully structures transactions so as to avoid the benefits and protections of a forum’s laws, the legal fiction of consent no longer applies. Id. at 808. Title passing outside of Texas is a factor that weighs against a finding that Texas has acquired jurisdiction. Id. All interactions between Exito-Taiwan and Pacific Eleetricord, Woods or GE Lighting emphasize efforts to avoid the benefits and protections of Texas’ laws and this factor would not support the attachment of jurisdiction as through those companies.

However, there is extensive evidence of on-going business between Exito-Taiwan and Intertrade, located in Fort Worth, Texas. Mr. Wu in his deposition admits doing business with this Texas company, and documentary evidence reflects multiple orders placed several times a month and payment via wire-transfer between Exito-Taiwan and Intertrade throughout 1997 and 1998. Products sold to Inter-trade consisted of wire harnesses and power cords, but not extension cords. Therefore, any contacts with this company did not give rise to Trejo’s causes of action and are best considered in the context of general jurisdiction.

Purchase orders reflect that Exito-Tai-wan shipped substantial numbers of products to Intertrade, sometimes by “Expeditors International” and sometimes by “Columbus Air.” The goods were shipped directly to Intertrade’s Fort Worth address. The invoices do not indicate these goods were forwarded “FOB” via any other port, and many appear to have been sent air freight directly to the Fort Worth destination. We note Mr. Wu testified that all transactions with Intertrade were “completed in Taiwan,” and that Inter-trade “handles their own shipment of goods.” When asked why Intertrade would then send confirmation of shipments to Exito, Mr. Wu responded that “maybe some shipments are really urgent, so they ask for air freight.” This response does not confirm that shipment was FOB Taiwan. Further, we identified no evidence, such as that tendered with respect to other purchasers, confirming that the goods were transferred FOB Taiwan. Despite Exito-Taiwan’s bald assertion to this effect in its brief (without any record reference), we cannot conclude based on the evidence before us that Exito-Taiwan did not ship its goods directly to Intertrade. We note further Mr. Wu’s testimony that Exito-Taiwan sends complimentary samples of its products to Intertrade.

We recognize that general jurisdiction requires “a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction.” BMC, 83 S.W.3d at 797 (citing CSR, Ltd., 925 S.W.2d at 595; Guardian Royal, 815 S.W.2d at 228). Activity by the nonresident in the forum state must be more substantial than that which could support specific jurisdiction. CSR, 925 S.W.2d at 595; Schlobohm, 784 S.W.2d at 357. On the other hand, “where the defendant’s activities in the forum are continuing and systematic, jurisdiction may be proper without a relationship between defendant’s particular act and the cause of action.” Schlobohm, 784 S.W.2d at 357; see also Helicopteros, 466 U.S. at 414-15, 104 S.Ct. 1868.

Exito-Taiwan’s contacts clearly exceed those resulting from periodic mailings based solely upon affiliation or membership, which were deemed insufficient in Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 774 (Tex.1995). Similarly, these contacts are more than the single conversation and the purchase of products from a Texas company found to be insufficient in BMC, 83 S.W.3d at 796. Further, there is no evidence that Exito-Taiwan sought to structure its transactions with Intertrade to avoid the benefits and protections of Texas’ laws; therefore we are not precluded from applying the legal fiction of consent. See Coleman, 83 S.W.3d at 808. We conclude that Exito-Taiwan failed to satisfy its burden to negate general jurisdiction. See M.G.M. Grand, 8 S.W.3d at 408.

We conclude that the business interactions between Exito-Taiwan and Inter-trade were not random, fortuitous, or attenuated contacts. Coleman, 83 S.W.3d at 806; Guardian Royal, 815 S.W.2d at 226. Rather, they were systematic and continuous, such that Exito-Taiwan “purposefully availed” itself of the privilege of conducting activities in Texas and could reasonably have anticipated being called into a Texas court. See Burger King, 471 U.S. at 475, 105 S.Ct. 2174; World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559.

We therefore find that general jurisdiction properly attaches.

C. Traditional Notions of Fair Play and Substantial Justice

Under the second prong of the test for due process, a party opposing a non-resident defendant’s special appearance must show that the exercise of in personam jurisdiction comports with fair play and substantial justice. Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154. Because the minimum contacts analysis now encompasses so many considerations of fairness, it has become less likely that the exercise of jurisdiction will fail a fair play analysis. Schlobohm, 784 S.W.2d at 357-58 (citing Asahi, 480 U.S. at 113, 107 S.Ct. 1026; Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174). This analysis is separate and distinct from the minimum contact issue, though, and must be conducted. Id. We therefore consider whether, despite the existence of minimum contacts, there are any reasons why our assertion of jurisdiction in this case would offend traditional notions of fair play and substantial justice.

Appellees argue that the assertion of personal jurisdiction over Exito-Taiwan does not offend traditional notions of fair play and substantial justice for the following reasons: (1) Exito-Taiwan has previously conducted business in the state and has previously submitted to the jurisdiction of a Texas court; (2) Texas has a significant interest in resolving products liability actions; (3) the interests of the plaintiffs and other co-defendants are best served by proceeding in Texas where most fact witnesses reside; (4) the most efficient resolution of the matter would be to proceed in one forum, rather than in separate actions; and (5) Texas is not an inappropriate forum vis-a-vis the shared interests of the other states.

We have concluded that the quality, nature and extent of Exito-Taiwan’s activity in Texas justifies a conclusion that it could expect to be called to our courts. Nothing in the record suggests that litigation in a Texas court would be excessively burdensome or inconvenient. Mr. Wu indicated he would need a translator and would need to travel to Texas. Nothing indicates this constitutes a substantial hardship. Mr. Wu testified that he is unfamiliar with Texas law. However, his testimony also reflects his company has available through its insurer counsel knowledgeable in Texas law. We note further that the nature of the underlying dispute is not “international,” but rather calls for the application of Texas law designed to protect Texas residents. Cf. Kintron, 168 S.W.3d at 132.

We conclude (1) no excessive burden will be placed upon Exito-Taiwan’ (2) Texas has a strong interest in adjudicating this dispute; (3) appellees have an interest in securing convenient and effective relief; (4) the assertion of jurisdiction by the Texas courts will enable the most effective and efficient resolution of the dispute; and (5) the assertion of jurisdiction comports with the interstate judicial system’s interest in obtaining the most effective resolution of the controversy and the states’ shared interest in furthering fundamental substantive social policies. See York, 141 S.W.3d at 845-46. We conclude that the exercise of jurisdiction over Exito-Taiwan by a Texas court does not offend traditional notions of fair play and substantial justice.

VI. CONCLUSION

With respect to Exito-Philippines, the underlying order of the trial court is reversed and rendered, as that court has no jurisdiction over Exito-Philippines. Because we determine the trial court rendered the proper judgment as to Exito-Taiwan, we do not reverse any of the trial court’s conclusions of law. BMC, 83 S.W.3d at 794. We affirm the underlying order of the trial court to the extent it concludes that jurisdiction may properly be asserted over Exito-Taiwan. We make no conclusions with respect to the other findings identified by the trial court. We remand for further proceedings.

      . Parties may challenge by interlocutory appeal a trial court’s order regarding special appearances. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(7) (Vernon Supp.2004-05).

      . Pacific Eleetricord and Woods are co-defendants of Exito-Taiwan in the underlying action. References in this opinion to "Appel-lees” are to Trejo, Pacific Eleetricord, and Woods, collectively.

      . Exito-Taiwan is the party identified and served with the Plaintiffs’ Seventh Amended Petition, although both Exito-Taiwan and Ex-ito Electronics Co., Ltd.-Philippines ("Exito-Philippines”) are referenced in that petition. Exito-Philippines is an affiliate that also manufactures and ships extension cords of the type in issue; it is based in Manila, The Philippines. Exito-Philippines was never formally named or served by any party, and never became a party to the litigation. Pacific Elec-tricord did initially name Exito-Philippines as its co-defendant and cross-defendant in its original cross-claim for statutory and common law indemnity (urging that Exito-Philip-pines is "also known as” Exito-Taiwan). However, later that same day Pacific Electri-cord filed its second amended cross-claim in which Exito-Taiwan is properly named and identified as the cross-defendant. In the amended cross-claim, Pacific Eleetricord added to its statutory and common law indemnity claims the following: (1) a claim for contractual indemnity, based upon purchase orders between Pacific Eleetricord and Exito-Tai-wan; and (2) allegations that Exito-Taiwan is the alter ego of Exito-Philippines and/or operated Exito-Philippines as its single business enterprise, thereby estopping Exito-Taiwan from denying that it manufactured the extension cord. Even if Exito-Taiwan were not the manufacturer, Pacific Eleetricord claimed it is responsible for indemnification as if it were the manufacturer. Thereafter, although Exi-to-Philippines is never named or served as a formal party to the suit, Pacific Eleetricord continued to include the name of Exito-Phil-ippines in captions on pleadings.

      . The trial court also denied Exito-Taiwan's motion to transfer venue. There is no issue related to venue in this interlocutory appeal.

      . The trial court’s references to "Exito” refer to Exito-Taiwan.

      . The trial court’s references to “Exito-P" refer to Exito-Philippines.

      . The Order Denying Special Appearance was entered June 17, 2002.

      . See Tex.R. Civ. P. 11. The rule 11 agreements extended the time for Exito-Taiwan to answer the lawsuit, but were not conditioned upon a subsequent special appearance.

      . The trial court did have jurisdiction to issue findings binding upon Exito-Taiwan that may have derived from its relationship with Exito-Philippines. The trial court's findings, as noted, include that Exito-Taiwan and Exito-Philippines share officers, directors and/or shareholders, and that Exito-Taiwan is the exclusive client of Exito-Philippines. These findings presumably were issued in conjunction with Pacific Electricord's contentions that Exito-Taiwan and Exito-Philippines were engaged in a single business enterprise, and/or that Exito-Taiwan was the alter ego of Exito-Philippines. However, these findings do not bear upon whether or not jurisdiction is proper over Exito-Taiwan, except to the extent the trial court may have relied upon minimum contacts of Exito-Philippines in assessing Exito-Taiwan's special appearance. See BMC Software Belgium, N.V. v. Marchand,
        83 S.W.3d 789, 798 (Tex.2002) (personal jurisdiction may be established over a nonresident defendant if the relationship between the foreign corporation and its subsidiary that does business in Texas would allow the court to impute the subsidiary’s "doing business” to the parent corporation); Conner v. Conti-Carriers & Terminals, 944 S.W.2d 405, 418 (Tex.App.-Houston [14th Dist.] 1997, no writ). Because no evidence as to Exito-Philippines' contacts with Texas was tendered for consideration, we do not here explore these theories and draw no conclusions as to the viability of these findings.

      .The Kawasaki court observed:
      When a corporation "purposefully avails itself of the privilege of conducting activities within the forum State,” it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence, if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivered its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.

        Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex.1985) ((citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)) (citations omitted)).

      . See M.G.M. Grand Hotel v. Castro, 8 S.W.3d 403, 408 n. 2 (Tex.App.-Corpus Christi 1999, no pet.); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 634 (Tex.App.-Dallas 1993, writ denied).

      . Courtney Duke only states she is authorized to make the affidavit, and does not identify her capacity or affiliation with Exito-Taiwan.

      . See Robinson & Martin v. Houston & T.C.R. Co., 105 Tex. 185, 146 S.W. 537, 538 (1912) (title to goods vests in purchaser upon delivery of goods by seller to the carrier; neither payment of the price nor actual delivery to the purchaser is necessaiy to pass the title).

      . Appellees assert that Exito-Taiwan’s purchasers resold the products, to national distributing chains that had markets in Texas and we should, therefore, infer that Exito-Taiwan anticipated a Texas market. The evidence is too weak to constitute an act of Exito-Taiwan purposefully directed to Texas. See Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex.1991) (finding that jurisdiction over a non-resident defendant cannot be based upon unilateral acts of a plaintiff or others).

      . A second certificate, issued by Allianz President General Insurance Company to Exito-Taiwan and directed to Pacific Electricord, reflects that products liability insurance for Exito-Taiwan, Exito-Philippines and a third company is provided for a worldwide policy territory, including the U.S.A. and Canada. However, it is dated January 1, 2001, after the events in issue in the underlying suit.

      . In the middle are “interactive” websites that allow the "exchange” of information between a potential customer and a host computer. Reiff v. Roy, 115 S.W.3d 700, 705 (Tex.App.-Dallas 2003, pet. denied); Michel v. Rocket Eng’g Corp., 45 S.W.3d 658, 677 (Tex.App.-Fort Worth 2001, no pet.). Jurisdiction in cases involving interactive websites is determined by the degree of interaction. Id.

      . We note that, despite the fact that a different specific product is involved, the interactions and family of products are substantially similar to those considered in our specific jurisdiction analysis.