Reversed=20
and Rendered and =
Opinion=20
filed August 30, 2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00146-CV
____________
ROBERT P.=20
MARKETTE, JR. AND GILLILAND & CAUDILL, =
L.L.P., =
Appellants
V.
X-RAY=20
X-PRESS CORPORATION, =
Appellee
On Appeal from the =
165th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2006-07709
O P I N I=20
O N
Appellants=20
appeal the trial court=3Ds order=20
denying their special appearance. Because we determine that =
appellee=20
has not met its burden of alleging facts showing that=20
appellants=3D =
contacts=20
with Texas are substantially connected to the operative facts of =
the=20
underlying litigation, we reverse and render judgment dismissing =
this case=20
for lack of personal jurisdiction.
I. =20
Background
After=20
appellee X-Ray X-Press Corporation (AX-Ray@), a Texas=20
corporation, was sued in Indiana by C&G Technologies, Inc.=20
(AC&G@), it=20
hired appellant Gilliland & Caudill, L.L.P. (AGilliland@), an=20
Indiana law firm, to defend its interests. Appellant Robert =
P.=20
Markette, Jr., an attorney with Gilliland who is licensed to =
practice law=20
in Indiana, sent X-Ray a letter in Texas via facsimile stating =
that he=20
Awill be=20
handling the litigation currently pending in Washington County,=20
Indiana.@ =20
Markette also enclosed a copy of Gilliland=3Ds standard=20
legal services contract, which X-Ray signed in Texas and returned =
to=20
Markette. Immediately before the line for X-Ray=3Ds=20
signature, the contract states: AI have=20
read and understand the foregoing and wish to retain [Gilliland] =
to=20
represent [X-Ray] in litigation currently pending in Washington =
County[,]=20
Indiana.@
Markette=20
filed a motion to dismiss the Indiana suit for lack of personal=20
jurisdiction, which the Indiana court denied. Markette then =
wrote=20
X-Ray a letter, which he emailed to X-Ray in Texas, providing =
legal advice=20
as to three options for proceeding. This case centers around =
the=20
first option:
The first=20
option is to take no further action. If [X-Ray] does not =
file an=20
answer in this matter, [C&G] will move for default =
judgment. =20
Assuming [X-Ray] ignores the motion, the Court will grant judgment =
in=20
favor of [C&G] for the amount it demanded in its =
complaint. At=20
that time, [C&G] will institute enforcement proceedings in =
order to=20
collect the judgment. [X-Ray] could, at that time, =
relitigate the=20
issue of jurisdiction. Because [C&G] would likely =
need to=20
use the Texas court system to enforce the judgment, [X-Ray] =
could=20
attack the jurisdiction in a Texas court, which would be more =
likely to=20
agree that Indiana did not have jurisdiction over a Texas=20
company. However, if the Texas court=3Ds [sic]=20
agreed with the Indiana court, [X-Ray] would be saddled with a =
default=20
judgment that it would have to satisfy.
(emphasis=20
added). X-Ray followed this first option and allowed C&G =
to=20
obtain a default judgment against it in the Indiana suit. =20
Thereafter, C&G filed a suit in Texas to enforce the judgment, =
and=20
X-Ray was ultimately required to satisfy that judgment.
X-Ray sued=20
Markette and Gilliland for legal malpractice and many related =
claims,=20
including fraud, negligent misrepresentation, breach of fiduciary =
duty,=20
and breach of contract. Markette and Gilliland filed special =
appearances. The trial court initially granted their special =
appearances, but thereafter, the court granted X-Ray=3Ds motion=20
for new trial and reversed its ruling. Markette and =
Gilliland then=20
filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
51.014(a)(7) (Vernon Supp. 2006) (allowing interlocutory appeal =
from=20
denial of special appearance).
=
; =
&=
nbsp; &n=
bsp; =20
II. =20
Analysis
Whether a=20
trial court has personal jurisdiction over a defendant is a =
question of=20
law. BMC Software Belgium, N.V. v. Marchand, 83 =
S.W.3d 789,=20
794 (Tex. 2002); Schott Glas v. Adame, 178 S.W.3d 307, 312 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2005, pet. denied). When, as here, the facts =
underlying=20
the jurisdictional issue are undisputed, we review the trial=20
court=3Ds=20
determination de novo. Schott Glas, 178 S.W.3d at =
312; see=20
American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d =
801, 806=20
(Tex. 2002). The plaintiff bears the initial burden of =
pleading=20
facts sufficient to establish personal jurisdiction. =20
Marchand, 83 S.W.3d at 793; Schott Glas, 178 S.W.3d =
at=20
313. The burden then shifts to the defendant challenging =
personal=20
jurisdiction to negate all bases of jurisdiction alleged by the=20
plaintiff. =20
Marchand, 83 S.W.3d at 793; Schott Glas, 178 S.W.3d =
at=20
313.
The Texas=20
long-arm statute governs Texas courts=3D =
exercise=20
of personal jurisdiction over a nonresident defendant. =
See=20
Tex. Civ. Prac. & =
Rem. Code=20
Ann. '' =
17.041B.045=20
(Vernon 1997 & Supp. 2006); Schott Glas, 178 S.W.3d at=20
312. The long-arm statute reaches as far as federal =
constitutional=20
due process will allow, and thus the long-arm statute is satisfied =
if an=20
assertion of personal jurisdiction comports with due =
process. See=20
Moki Mac River Expeditions v. Drugg, No. 04-0432, __ S.W.3d =
__, 2007=20
WL 623805, at *3 (Tex. Mar. 2, 2007); Schott Glas, 178 =
S.W.3d at=20
312. Personal jurisdiction is proper when the nonresident =
defendant=20
has established Aminimum=20
contacts@ =
with the=20
forum and the exercise of jurisdiction comports with A>traditional=20
notions of fair play and substantial justice.=3D@ =20
Moki Mac, 2007 WL 623805, at *3 (quoting =
Int=3Dl Shoe Co.=20
v. Washington, 326 U.S.=20
310, 316 (1945)). The touchstone of the minimum contacts =
analysis is=20
purposeful availmentCthe=20
defendant=3Ds contacts=20
must show that it purposefully availed itself of the privileges =
and=20
protections of the forum=3Ds law to=20
subject itself to jurisdiction there. See Michiana Easy=20
Livin=3D =
Country,=20
Inc. v. Holten, 168=20
S.W.3d 777, 784B85 (Tex.=20
2005).
A=20
defendant=3Ds contacts=20
can give rise to either general or specific jurisdiction. =
General=20
jurisdiction is based on continuous and systematic contacts with =
the=20
forum. Moki Mac, 2007 WL 623805, at *4. =
Specific=20
jurisdiction is based on purposeful contacts that give rise or =
relate to=20
the litigation. Id. In this case, X-Ray alleges =
only=20
specific jurisdiction. Thus, for the trial court to have =
properly=20
exercised specific jurisdiction in this case, (1) Markette and =
Gilliland=20
must have made minimum contacts with Texas by purposefully =
availing=20
themselves of the privilege of conducting activities here and (2) =
their=20
liability must have arisen from or relate to those contacts. =
See=20
id.
In Moki=20
Mac, the supreme court analyzed the relatedness requirement of =
specific jurisdiction. The court noted that neither it nor =
the=20
United States Supreme Court had given much guidance as to how =
closely=20
related a cause of action must be to the defendant=3Ds forum=20
activities to support personal jurisdiction. See id. =
at *7,=20
12. After discussing and rejecting three other approaches, =
the court=20
determined that Afor a=20
nonresident defendant=3Ds forum=20
contacts to support an exercise of specific jurisdiction, there =
must be a=20
substantial connection between those contacts and the operative =
facts of=20
the litigation.@ =20
See id. at *7B12. =20
Thus, the court held in Moki Mac that the Texas contacts of =
a=20
Utah-based expedition company were not sufficiently related to the =
cause=20
of action because the operative facts of the litigation =
principally=20
concerned the negligence of guides in Arizona, even though the =
plaintiff=20
parents may have relied on the company=3Ds safety=20
representations made in the promotional materials it sent to Texas =
in=20
deciding to send their son on a fatal rafting trip in =
Arizona. =20
See id. at *1, 12B13.
The=20
Moki Mac court analogized the facts of its case to our =
previous=20
decision in Brocail v. Anderson, 132 S.W.3d 552 (Tex.=20
App.CHouston=20
[14th Dist.] 2004, pet. denied). See Moki Mac, 2007 =
WL=20
623805, at *15. Brocail involved an injured former =
Detroit=20
Tigers pitcher who underwent treatment by a team doctor in =
Michigan. =20
Brocail, 132 S.W.3d at 555. When the pitcher decided =
to=20
return to his home in Texas, the doctor prescribed follow-up =
physical=20
therapy treatments that were administered in Texas. =
Id. =20
The doctor faxed treatment prescriptions to Texas and communicated =
with=20
the physical therapists in Texas. Id. The =
pitcher sued=20
the Michigan doctor in Texas, asserting specific jurisdiction =
based on the=20
doctor=3Ds contacts=20
with Texas regarding his physical therapy and the =
doctor=3Ds alleged=20
misrepresentation in Texas by failing to fully disclose the true =
extent of=20
his injuries to the physical therapists. Id. at =
558. We=20
rejected this argument, stating that the pitcher Ais=20
complaining about a physical injury based on a course of =
treatment. =20
Any tort occurred in the exercise of medical judgment in =
prescribing a=20
course of physical therapy from Michigan, not from the =
communication of=20
that prescription to [Texas].@ =20
Id. at 563. The court in Moki Mac applied this =
analysis to its case, noting that the injuries for which the =
parent=20
plaintiffs sought recovery were based on their son=3Ds death in=20
Arizona and that the relationship between the operative facts of =
the=20
litigation and the company=3Ds Texas=20
promotional activities were too attenuated to satisfy due =
process. =20
See Moki Mac, 2007 WL 623805, at *15.
We find=20
Moki Mac and Brocail controlling in this case. =
X-Ray=3Ds primary=20
jurisdictional allegation is that Markette provided incorrect =
legal advice=20
about Texas law upon which it relied to its detriment. =
Markette=20
exercised his legal judgment and formed his legal opinions in =
Indiana,=20
which he then communicated to X-Ray in Texas. The operative =
facts of=20
the underlying litigation will focus primarily on the =
Markette=3Ds legal=20
advice, not the communication of that advice to Texas, and thus =
specific=20
jurisdiction does not arise in this case. See Moki =
Mac, 2007=20
WL 623805, at *15; Brocail, 132 S.W.3d at 563.
X-Ray=20
argues that Markette=3Ds act of=20
giving legal advice on Texas law directed to a Texas client is =
sufficient=20
to establish personal jurisdiction. Despite =
appellants=3D =
assertion=20
that it did not provide legal advice on Texas law because it cited =
no=20
cases or statutes and was merely discussing possibilities, we =
conclude=20
that advising X-Ray that it Acould=20
attack the=20
jurisdiction in a Texas court, which would be more likely to =
agree=20
that Indiana did not have jurisdiction over a Texas =
company@ =
constituted legal advice about Texas law. (emphasis =
added). =20
However, that is still insufficient to establish personal=20
jurisdiction. Markette=3Ds legal=20
judgment, which will be the focus of the underlying litigation, =
was=20
exercised in Indiana, just as the doctor in Brocail =
exercised his=20
medical judgment in Michigan. Moreover, the supreme court =
has=20
rejected the notion of focusing on where a defendant directed a =
tort or=20
where the effects of tortious conduct will be felt in determining =
specific=20
jurisdiction. =20
See Michiana, 168 S.W.3d at 790B92. =20
Rather, we analyze the degree of connectedness between the forum =
contacts=20
and the litigation to determine whether the operative facts of the =
litigation focus on those contacts. See Moki Mac, =
2007 WL=20
623805, at *12B13.
Because we=20
conclude that X-Ray has not met its burden of pleading facts =
sufficient to=20
give rise to specific jurisdiction because Markette=3Ds and=20
Gilliland=3Ds Texas=20
conduct is not substantially connected to the operative facts of =
the=20
litigation, we need not reach Markette=3Ds and=20
Gilliland=3Ds second=20
issue, in which they argue that exercise of personal jurisdiction =
does not=20
comport with traditional notions of fair play and substantial=20
justice. We reverse the trial court=3Ds judgment=20
and render judgment dismissing this case for lack of personal=20
jurisdiction.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Opinion filed August 30, 2007.
Panel=20
consists of Justices Yates, Edelman, and Seymore.
X-Ray makes several arguments as =
to how=20
appellants have not met their burden of negating all bases of=20
jurisdiction. We need not consider these arguments because =
we=20
conclude that the basic jurisdictional facts alleged by X-Ray, =
which are=20
not disputed, do not establish jurisdiction, and thus X-Ray has =
not met=20
its initial burden.
The Michiana court =
specifically=20
disapproved of this court=3Ds opinion in Memorial Hospital System =
v. Fisher=20
Insurance Agency, Inc., 835 S.W.2d 645, 650 (Tex. =
App.CHouston [14th Dist.] 1992, no writ), in =
which we=20
had held that Aif the tortfeasor knows that the brunt =
of the=20
injury will be felt by a particular resident in the forum, it must =
reasonably anticipate being haled into court there to answer for =
its=20
actions.@ See Michiana, 168 S.W.3d =
at 792=20
n.81. We note that two of X-Ray=3Ds primary authorities supporting =
jurisdiction=20
against appellants rely on Memorial Hospital. See =
Tempest=20
Broadcasting Corp. v. Imlay, 150 S.W.3d 861, 874 (Tex.=20
App.CHouston [14th Dist.] 2004, no pet.); =
Cartlidge=20
v. Hernandez, 9 S.W.3d 341, 347B49 (Tex. App.CHouston [14th Dist.] 1999, no =
pet.). =20
X-Ray=3Ds other primary authority, though not =
relying on=20
Memorial Hospital, is distinguishable on its facts because =
the=20
nonresident lawyer specifically promised to protect the forum=20
client=3Ds subrogation interest in Texas whereas =
here,=20
Markette never promised to represent X-Ray in Texas. See =
Rowland=20
& Rowland, P.C. v. Tex. Employers Indem. Co., 973 S.W.2d =
432,=20
435B36 (Tex. App.CAustin 1998, no=20
pet.). |