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Opinion issued =
September 27,=20
2007 In=20 The For=20 The
PELICAN =
STATE=20
PHYSICAL THERAPY, L.P., Appellant MARC =
BRATTON,=20
Appellee
On =
Appeal from the=20
133rd District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2004-56851
The Court's opinion and =
judgment in the=20
above-referenced appeal issued on August 30, 2007. After due=20
consideration, and within its plenary power, the Court sua =
sponte=20
withdraws its August 30, 2007 opinion and judgment and issues =
today's=20
opinion and judgment in their stead. See Tex. R. App. P. =
19.1=20
(setting plenary power of courts of appeals over their=20
judgments). Appellant, Pelican State =
Physical=20
Therapy, L.P. ("Pelican State"), appeals from a final judgment =
dismissing=20
its claims against appellee, Marc Bratton, which judgment the =
court=20
rendered upon granting Bratton's special appearance. We determine =
(1)=20
whether the trial court's failure to file findings of fact and =
conclusions=20
of law constitutes error, (2) whether the trial court erred in =
granting=20
Bratton's special appearance, and (3) whether Pelican State's =
appeal is=20
frivolous so as to merit sanctions on appeal. We affirm the =
judgment, and=20
we deny Bratton's motion for appellate sanctions against Pelican =
State.=20
The material facts are largely=20
undisputed. Pelican State was a Texas-organized and =
Texas-registered=20
limited partnership that did business as Audubon Physical Therapy =
and=20
operated a physical-therapy clinic in Slidell, Louisiana ("the =
Slidell=20
clinic"). Pelican State maintained its principal office in =
Houston, Texas.=20
Pelican State was formed by U.S. Physical Therapy, Inc. ("USPT"), =
a Nevada=20
corporation with its corporate headquarters and principal place of =
business in Houston, Texas. USPT developed, managed, or operated=20
physical-therapy clinics in 35 states through limited partnerships =
or=20
other corporate entities. USPT or one of its Texas-based =
subsidiaries was=20
typically the general partner or a limited partner in the =
established=20
partnerships. USPT developed the Slidell clinic. There were two limited partners =
in=20
Pelican State. The first was U.S. Physical Therapy, Ltd., a wholly =
owned=20
subsidiary of USPT that was located in Houston. The second limited =
partner=20
was Joe Zimmerman ("Zimmerman"), who served as the executive =
director of=20
the Slidell Physical Therapy Clinic in Slidell, Louisiana. =
Zimmerman was a=20
resident of Louisiana. Bratton was also a Louisiana =
resident. He=20
was licensed as a physical therapist in Louisiana and practiced =
there, not=20
in Texas. Bratton did not have a registered agent for service in =
Texas,=20
did not have a Texas bank account, did not own property in Texas, =
and had=20
no employees of his own in Texas. In the summer of 2000, Bratton =
responded=20
to a "blind" newspaper advertisement in the =
Times-Picayune, a New=20
Orleans newspaper, for a physical-therapist position by faxing a =
copy of=20
his resume to a Mandeville clinic also owned by Pelican State. =
Bratton was=20
contacted by Zimmerman, and they arranged for a job interview at =
the=20
Mandeville clinic. Bratton then had a second interview with =
Zimmerman and=20
Royce Spradlin, whom Zimmerman identified to Bratton as the chief=20
executive officer of USPT, at the Mandeville clinic. Bratton was =
not=20
offered a position at that time. In late 2000 or early 2001, =
Bratton=20
visited the USPT website with the idea of presenting USPT the =
possibility=20
of opening a second physical-therapy clinic in Slidell. Bratton =
contacted=20
USPT using its "contact us" link on USPT's website. At the hearing =
on his=20
special appearance, Bratton testified that he did not recall =
having seen=20
the location of USPT's corporate headquarters on the USPT=20
website. In response to his having =
contacted USPT=20
through its website, Bratton received a telephone call from one of =
USPT's=20
employees, who stated that opening another clinic in Slidell would =
be a=20
"delicate" matter and that Bratton would hear from USPT later. =
Bratton did=20
not hear from anyone at USPT, but Zimmerman did contact Bratton =
soon=20
afterwards. Bratton and Zimmerman had another meeting, this time =
at the=20
Slidell clinic. Zimmerman told Bratton that a second clinic was =
not a=20
possibility, but offered him a staff position as a physical =
therapist at=20
the Slidell clinic. Bratton accepted and was hired by Pelican =
State.=20
After Bratton had verbally =
accepted the=20
offer, Zimmerman told Bratton that the company would be sending =
him an=20
employment agreement in the mail. Bratton received the employment=20
agreement in the mail from USPT a few days later, although the =
agreement=20
recited that it was between Pelican State and Bratton. On appeal =
and=20
below, the parties dispute whether the envelope in which the =
employment=20
agreement was sent showed USPT's return address in Houston. =
However,=20
Bratton, who was the only witness to testify, stated that, =
although the=20
envelope did have some address with a logo on it, he did not =
recall=20
whether the mailing came from Houston. However, he acknowledged =
that he=20
later learned that USPT was a Houston-based company. Before signing the employment =
agreement,=20
Bratton questioned Zimmerman and an employee at USPT about the=20
non-competition and non-solicitation provisions in the agreement. =
In=20
February 2001, Bratton signed the employment agreement. Bratton =
then=20
mailed the agreement in the provided return envelope so that =
Spradlin=20
could sign it. Bratton testified that he did not recall the =
location to=20
which he mailed the employment agreement. Spradlin signed the =
agreement on=20
behalf of Pelican State. When he entered into the =
employment=20
agreement, Bratton knew that Spradlin was the chief executive =
officer of=20
USPT, that Pelican State had been established as a limited =
partnership by=20
USPT, and that USPT "operated," was "affiliated with," or =
"co-owned" the=20
Slidell clinic. However, Bratton was unaware of the location of =
USPT's=20
principal place of business or that Pelican State was a Texas =
entity.=20
The employment agreement =
contained a=20
one-year non-competition provision (section 6), a one-year=20
employee-and-patient non-solicitation provision (section 7), and a =
non-disclosure provision (section 8). Under the employment =
agreement, the=20
initial term of employment was for six months, beginning March 19, =
2001=20
and ending September 18, 2001. After that initial term, the term =
of=20
employment would extend on a month-to-month basis unless =
terminated by=20
either party with 30 days' notice. Bratton worked for Pelican =
State by=20
extending the term month to month until he resigned in June 2004 =
to pursue=20
his own clinic. During=20
Bratton's employment with Pelican State, USPT or one of its =
Houston=20
subsidiaries provided legal, financial, accounting, operations,=20
compliance, and other administrative services to Pelican State and =
the=20
Slidell clinic. All salary, bonuses, and other payments made to =
Bratton=20
under the employment agreement were processed and paid by USPT or =
one of=20
its subsidiaries in Houston. Bratton testified that he did not =
know that=20
his compensation "was carried out from bank accounts maintained by =
the=20
company in Houston" because they appeared on his paystubs as =
having been=20
drawn on a Louisiana bank.=20
Additionally, Pelican State provided Bratton's professional =
liability=20
insurance through Houston-based insurance companies Bratton attended a two-day =
initial=20
training and orientation at USPT's Houston office in May 2001.=20
Approximately two months after Bratton had begun his employment =
with=20
Pelican State, the managing director was terminated, and Bratton =
assumed=20
the managerial duties at the Slidell clinic. In this role, Bratton =
reported to Zimmerman. It was after this promotion that Bratton =
began to=20
interact with USPT actively on behalf of the Slidell clinic and to =
have=20
contacts with Houston. For example, during his employment with =
Pelican=20
State, Bratton had over a hundred contacts with USPT employees in =
Houston=20
through telephone calls, e-mails, and the mailing and faxing of =
documents.=20
Bratton testified that he communicated with someone at USPT in =
Houston=20
approximately every two weeks or every month. Bratton's contacts =
with USPT=20
or its subsidiaries in Houston included: Additionally, beginning in May =
2002,=20
Bratton traveled to USPT's Houston office on an annual basis for =
company=20
meetings related to management at the Slidell clinic, which =
resulted in=20
approximately four or five short trips to Texas. At these annual =
meetings,=20
Bratton met with employees and reviewed marketing, Medicare, and =
other=20
administrative issues. The focus of the marketing meetings was how =
to=20
increase the revenue and the profitability of the clinic, which in =
turn=20
would impact Bratton's opportunity to earn bonuses. Bratton's=20
uncontradicted testimony was that each of these contacts with =
Houston took=20
place at the instruction of Zimmerman or was initiated by someone =
at USPT.=20
Bratton=20
also testified that he did not believe that he had a choice about =
whether=20
to attend the meetings and training in Houston or whether to =
communicate=20
with USPT personnel. =
On June 4, 2004, Bratton =
resigned from=20
Pelican State and opened his own clinic in Louisiana. Pelican =
State sued=20
Bratton for breach of contract and breach of his duties to be =
loyal to and=20
not to disclose the confidential information of Pelican State. In =
Pelican=20
State's pleading, it alleged that three days after he had =
resigned,=20
Bratton had opened his own physical-therapy clinic less than two =
miles=20
from the Slidell clinic, in violation of the non-competition =
provisions of=20
his employment agreement. Pelican State also alleged that, relying =
on=20
confidential information gained through his employment, Bratton =
began the=20
process of opening, and soliciting clients for, his new clinic =
while still=20
employed with Pelican State. Bratton filed a special =
appearance, which=20
the trial court granted on December 9, 2005 after an evidentiary =
hearing.=20
As a result, the trial court dismissed Pelican State's lawsuit =
against=20
Bratton. Pelican State then requested that the trial court file =
findings=20
of fact and conclusions of law. Pelican State also filed a notice =
of past=20
due findings of fact and conclusions of law, but the trial court =
never=20
filed any.
In its first point of error, =
Pelican=20
State contends that the trial court's failure to file findings of =
fact and=20
conclusions of law was error that was harmful because it prevented =
Pelican=20
State from properly presenting its case to this=20
Court. Under Texas =
Rule of=20
Civil Procedure 296, in a case tried without a jury, any =
party=20
may request the court to file findings of fact and conclusions of =
law.=20
Tex. R. Civ. P. 296. However, not every case finally =
determined=20
without a jury trial is one tried without a jury within the =
meaning of=20
rule 296. See IKB Indus. (Nigeria) Ltd. v. Pro-Line =
Corp., 938=20
S.W.2d 440, 441 (Tex. 1997) (considering predecessor of rule 296). =
"The=20
purpose of Rule 296 is to give a party a right to findings of fact =
and=20
conclusions of law finally adjudicated after a conventional =
trial on=20
the merits before the court. In other cases findings and =
conclusions=20
are proper, but a party is not entitled to them." Id. at =
442=20
(emphasis added). Rulings on special appearances--even those that, =
as=20
here, result in a final judgment--are not rendered "after a =
conventional=20
trial on the merits," so as to require the filing of findings of =
fact and=20
conclusions of law. See id. at 442-43 (stating general =
rule and=20
providing analogous examples); see also Cambridge Capital =
Corp. v.=20
Skandia Real Estate Group, No. 05-02-00104-CV, 2002 WL =
1380420, at=20
*1, *3 (Tex. App.--Dallas June 27, 2002, no pet.) (not designated =
for=20
publication) (implying, based on IKB Indus. (Nigeria) =
Ltd., that=20
granting of special appearance is ruling for which findings of =
fact and=20
conclusions of law are allowed, but are not required). =
Accordingly, we=20
hold that the trial court did not err in failing to enter the =
requested=20
findings of fact and conclusions of law. We overrule Pelican State's =
first point=20
of error. Bratton's Special=20
Appearance In its second =
point of=20
error, Pelican State contends that the trial court erred by =
granting=20
Bratton's special appearance and dismissing its lawsuit because =
the=20
evidence was both legally and factually insufficient to find that =
Bratton=20
had negated all bases for personal jurisdiction. A. The Standard of=20
Review A legal conclusion concerning =
the=20
existence of personal jurisdiction is a question of law subject to =
de=20
novo review, but that conclusion must sometimes be preceded =
by the=20
resolution of underlying factual disputes. Am. Type Culture=20
Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex. =
2002);=20
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 =
(Tex.=20
2002). "When . . . the trial court does not issue fact =
findings,=20
we presume that the trial court resolved all factual disputes in =
favor of=20
its ruling." Glattly v. CMS Viron =
Corp.,=20
177 S.W.3d 438, 445 (Tex. App.--Houston [1st Dist.] 2005, no =
pet.)=20
(citing Am. Type Culture Collection, 83 S.W.3d at =
805-06). These=20
implied findings of fact may be challenged for evidentiary =
sufficiency=20
when a reporter's record exists. Id. =
(citing=20
BMC Software Belg., N.V., 83 S.W.3d at 794). However, "we =
review=20
de novo if the underlying facts are undisputed or otherwise =
established."=20
Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, =
113 (Tex.=20
App.--Houston [1st Dist.] 2000, pet. dism'd w.o.j.). =
Because=20
the relevant, material evidence in the case before us is=20
undisputed, we review the complained-of ruling de novo. =
See=20
id. B. The Law of Special=20
Appearance A plaintiff bears the initial =
burden of=20
pleading allegations sufficient to bring a non-resident defendant =
within=20
the terms of the Texas long-arm statute. Am. Type Culture=20
Collection, 83 S.W.3d at 807. "The nonresident =
defendant=20
then assumes the burden of negating all bases of jurisdiction in =
those=20
allegations." Moki Mac River Expeditions v. Drugg, 221 =
S.W.3d=20
569, 584 (Tex. 2007). C. The Law of Personal=20
Jurisdiction A court may assert =
personal=20
jurisdiction over a non-resident defendant if the requirements of =
the Due=20
Process Clause of the United States Constitution 1. Minimum-Contacts=20
Analysis "Federal due process =
requirements are=20
two-fold." Id. "First, the nonresident defendant must =
have=20
purposefully established such minimum contacts with the forum =
state that=20
it could reasonably anticipate being sued there." Id. =
(citing=20
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. =
Ct.=20
2174, 2183 (1985)). "If the nonresident defendant has purposefully =
availed=20
itself of the privileges and benefits of conducting business in a =
state,=20
it has sufficient contacts to confer personal jurisdiction." =
Id.=20
(citing Burger King Corp., 471 U.S. at 475, 105 S. Ct. at =
2183).=20
"Random, fortuitous, or attenuated contacts do not suffice." =
Id.=20
(citing Burger King Corp., 471 U.S. at 475, 105 S. Ct. at =
2183).=20
It is the nature and quality of the non-resident's contacts, =
rather than=20
their number, that are important to the minimum-contacts analysis. =
Guardian Royal Exch. Assurance, Ltd. v. English China =
Clays,=20
P.L.C., 815 S.W.2d 223, 230 n.11 (Tex. 1991). Furthermore, only those =
contacts=20
occurring through the date of injury are relevant to a =
minimum-contacts=20
analysis. See Schott Glas v. Adame, 178 S.W.3d 307, 314 =
(Tex.=20
App.--Houston [14th Dist.] 2005, pet. denied). In its original =
petition,=20
Pelican State alleged that its injury occurred during the course =
of=20
Bratton's employment with Pelican State and continued until =
Bratton opened=20
his own competing clinic. Accordingly, in this case, any contacts =
with=20
Texas that Bratton had from shortly after he joined Pelican State =
through=20
the date that he opened a competing clinic could be relevant to =
the=20
minimum-contacts analysis. "Minimum-contacts analysis is =
further=20
divided into general and specific personal jurisdiction." =
Preussag=20
Aktiengesellschaft, 16 S.W.3d at 114. We discuss each type of =
personal jurisdiction immediately below. a. =
Specific=20
Personal Jurisdiction A court may exercise specific =
personal=20
jurisdiction over a non-resident defendant if (1) the non-resident =
purposely directed its activities toward the forum state or =
purposely=20
availed itself of the privileges of conducting activities there =
and (2)=20
the controversy arises out of or is related to the non-resident's =
contacts=20
with the forum state. Freudensprung v. Offshore Technological =
Servs.,=20
Inc., 379 F.3d 327, 343 (5th Cir. 2004). The non-resident =
defendant's=20
purposeful conduct, not the unilateral acts of the plaintiff, must =
have=20
caused the contact. Helicopteros Nacionales de Colombia, =
S.A.,=20
466 U.S. at 417, 104 S. Ct. at 1873. Although not determinative,=20
foreseeability is an important consideration in deciding whether =
the=20
non-resident has purposefully established minimum contacts with =
the forum=20
state. Glattly, 177 S.W.3d at 446-47. We focus on the relationship =
among the=20
non-resident, the forum, and the litigation to determine if the =
alleged=20
liability arises from or is related to an activity conducted in =
Texas.=20
Counter Intelligence, Inc. v. Calypso Waterjet Sys., =
Inc., 216=20
S.W.3d 512, 517 (Tex. App.--Dallas 2007, pet. denies); =
see=20
Blair Commc'ns, Inc. v. SES Survey Equip. Serv., Inc., 80 =
S.W.3d=20
723, 727 (Tex. App.--Houston [1st Dist.] 2002, no pet.); Mem'l =
Hosp.=20
Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 659 (Tex.=20
App.--Houston [14th Dist.] 1992, no writ), disapproved on =
other=20
grounds, Michiana Easy Livin' Country, Inc. v. =
Holten, 168=20
S.W.3d 777, 791-92 (Tex. 2005). We examine the nature of the =
contacts and=20
the "nexus" that these contacts create with the forum state. =
McDermott=20
v. Cronin, 31 S.W.3d 617, 621-22 (Tex. App.--Houston [1st =
Dist.]=20
2000, no pet.). The "arises from or is related to" requirement of =
specific=20
personal jurisdiction requires a "substantial connection" between =
the=20
nonresident defendant's contacts and the "operative facts of the=20
litigation." Moki Mac River Expeditions, 221 S.W.3d at =
584.=20
Specifically, the non-resident's conduct must have been purposely =
directed=20
at or have occurred in the forum and must have a "substantial =
connection,"=20
resulting in the alleged injuries, with the litigation's operative =
facts.=20
Id.; Glattly, 177 S.W.3d at 446; see Mem'l =
Hosp.=20
Sys., 835 S.W.2d at 649-50. b. General Personal=20
Jurisdiction When liability does not arise =
from any of=20
the defendant's contacts, a court may nonetheless exercise =
personal=20
jurisdiction over the defendant if its contacts are continuous and =
systematic. See Helicopteros Nacionales de Colombia, =
S.A.,=20
466 U.S. at 416, 104 S. Ct. at 1873; CSR Ltd., =
925=20
S.W.2d at 595. This type of personal jurisdiction is termed =
general=20
personal jurisdiction. CSR Ltd., 925 S.W.2d at 595. "To =
support a=20
finding of general [personal] jurisdiction, the defendant's forum=20
activities must have been 'substantial,' which requires stronger =
evidence=20
of contacts than for specific personal jurisdiction." Preussag =
Aktiengesellschaft, 16 S.W.3d at 114 (citing and quoting =
CSR=20
Ltd., 925 S.W.2d at 595). 2. Fair Play and =
Substantial=20
Justice "Second, if the nonresident =
defendant has=20
purposefully established minimum contacts with the forum, the =
exercise of=20
jurisdiction must comport with fair play and substantial justice." =
Preussag Aktiengesellschaft, 16 S.W.3d at 114 (citing =
Burger=20
King Corp., 471 U.S. at 477, 105 S. Ct. at 2184 and =
Guardian=20
Royal, 815 S.W.2d at 231). D. =
Discussion In issue two, Pelican State =
argues that=20
the trial court erred in granting Bratton's special appearance =
because=20
Texas had both specific and general personal jurisdiction over him =
and=20
because the exercise of personal jurisdiction over Bratton =
comported with=20
fair play and substantial justice. 1. Specific Personal =
Jurisdiction=20
Over Bratton Under issue two, Pelican State =
first=20
argues that Bratton's contacts with Texas gave rise to specific =
personal=20
jurisdiction. In support, Pelican State notes that (1) Bratton =
contacted=20
USPT, a Houston-based business, through its website, which contact =
eventually led to Zimmerman's contacting Bratton about employment =
with=20
Pelican State Pelican State's focus is overly =
broad. As=20
applied to this case, the test for specific personal jurisdiction =
over=20
Bratton requires--in addition to Bratton's purposeful direction of =
activities toward or purposeful availment of the privileges of =
doing=20
business in Texas--a substantial connection between those contacts =
of=20
Bratton and the litigation's operative facts. See Moki Mac =
River=20
Expeditions, 221 S.W.3d at 584. Assuming without deciding =
that the=20
contacts to which Pelican State points evidence purposeful =
availment of=20
Texas's benefits, we hold that there is not a sufficient =
connection=20
between those contacts and the litigation to support the exercise =
of=20
specific personal jurisdiction over Bratton. Pelican State's petition =
alleged causes=20
of action against Bratton for breach of contract and breach of his =
duties=20
to be loyal to, and not to disclose the confidential information =
of,=20
Pelican State. The facts that Pelican State alleged in support of =
these=20
claims were (1) that for "some time" before his resignation in =
June 2004,=20
Bratton had put "in . . . motion" his plans to open a =
competing=20
physical-therapy clinic in Louisiana; (2) that he had used =
confidential=20
information from Pelican State to do so after his resignation; (3) =
that he=20
had allowed Pelican State's patient base to dwindle before his =
departure;=20
(4) that he had spent the last months of his employment =
supervising=20
construction of and obtaining permits for his new clinic; and (5) =
that he=20
was competing with Pelican State in Louisiana contrary to his =
covenants=20
not to compete and not to solicit. Given these pleadings, the =
operative=20
facts of Pelican State's suit will concern Bratton's acts in =
disclosing=20
Pelican State's confidential information, in soliciting Pelican =
State's=20
clientele for his new clinic, and in using his time and efforts =
while he=20
was employed at the Slidell clinic in support of his new clinic, =
rather=20
than for Pelican State's business. These are the facts that are =
relevant=20
for a specific-personal-jurisdiction analysis, and the allegations =
and the=20
evidence indicated that these acts happened in Louisiana. See =
id.=20
(holding that test for the "relatedness" portion of the=20
specific-personal-jurisdiction test is that a substantial =
connection exist=20
between the litigation's operative facts and the non-resident =
defendant's=20
contacts with Texas); see also Gustafson v. Provider Healthnet =
Servs.,=20
Inc., 118 S.W.3d 479, 483 (Tex. App.--Dallas 2003, no pet.) =
(holding=20
that none of non-resident's following contacts were sufficiently =
connected=20
to execution of confidentiality agreement that non-resident was =
alleged to=20
have breached or to dissemination of confidential information so =
as to=20
allow exercise of specific personal jurisdiction over him: (1) =
employment=20
relationship itself; (2) two visits to Texas during employment; =
(3)=20
payment from Texas bank; (4) submission of requests for =
reimbursement to=20
Texas and subsequent cashing of those checks; (5) employee's =
communication=20
with employees located in Texas; (6) employee's health benefits' =
being=20
administered from Texas offices; (7) provision of employee's =
health=20
insurance through Texas company; and (8) Texas location of =
insurance=20
agents who administered employee's dental and life =
insurance). In contrast, Bratton's regular =
business=20
contacts with USPT--even were we to assume that those contacts =
sufficed to=20
show minimum contacts--were not substantially related to the =
litigation's=20
operative facts. For example, Pelican State did not allege and =
does not=20
contend that Bratton breached the employment agreement or his =
various=20
duties during his trips to Texas or by his regular communications =
with and=20
submissions to USPT's Houston employees on routine business=20
matters. We=20
distinguish Burger King Corp. v. Rudzewicz, on which =
Pelican=20
State relies, because in it, the Florida plaintiff sued its =
non-resident=20
franchisee for breach of some of the same contractual obligations =
that=20
constituted, or were closely related to, the franchisee's contacts =
with=20
Florida. See id., =
471 U.S.=20
at 468, 479-81, 105 S. Ct. at 2180, 2186. Here, in contrast, the =
specific=20
contractual obligations that Pelican State argues constituted =
Bratton's=20
contacts with Texas were not those that Bratton allegedly=20
breached For these reasons, we hold that =
the that=20
the trial court did not err in implicitly concluding that it could =
not=20
exercise specific personal jurisdiction over Bratton. 2. General Personal =
Jurisdiction=20
Over Bratton Under the remainder of issue =
two, Pelican=20
State argues that Bratton's contacts with Texas also gave rise to =
general=20
personal jurisdiction. In support, Pelican State =
relies on=20
Bratton's attending a two-day seminar in Houston soon after he was =
hired=20
and on his actions after he became the Slidell clinic's director, =
which=20
included the following: his regular communications with USPT =
employees in=20
Houston; his few annual visits to USPT's office; his insurance and =
benefits, which were administered in Houston; and his sending =
business=20
information and documentation regularly to USPT in Houston. =
However,=20
Pelican State did not contend below, and does not contend here, =
that=20
Bratton acted outside the scope of his employment, or that he =
acted as=20
anything but the agent of Pelican State, in attending this two-day =
training session or in conducting these routine contacts. In any event, even if these =
actions can=20
be attributed to Bratton individually for purposes of determining =
general=20
personal jurisdiction over him, We hold that the trial court =
did not err=20
by implicitly concluding that Bratton lacked the "continuous and=20
systematic contacts" with Texas that the Due Process Clause =
requires for=20
Texas to exercise general personal jurisdiction over him. =
3. Conclusion =
Concerning=20
Bratton's Special Appearance We hold that the trial court =
did not err=20
in granting Bratton's special appearance and in dismissing the =
claims=20
against him. We overrule Pelican State's second issue. Appellate=20
Sanctions Bratton asks us to sanction =
Pelican State=20
under Rule of Appellate Procedure 45 for its pursuing a frivolous =
appeal.=20
See Tex. R. App. P. 45. Under rule 45, we may award just =
damages=20
if we objectively determine, after considering the record, briefs, =
or=20
other papers filed in the Court, that an appeal is frivolous. =
Smith v.=20
Brown, 51 S.W.3d 376, 381 (Tex. App.--Houston [1st Dist.] =
2001, pet.=20
denied). We examine the record from the viewpoint of the appellant =
and=20
decide whether it had reasonable grounds to believe that the case =
could be=20
reversed. Id. Pelican State was able to show =
that=20
Bratton did have some contacts with USPT's Houston offices. We =
thus=20
conclude that Pelican State had a reasonable basis to believe that =
the=20
judgment might be reversed and that its appeal is not=20
frivolous. We overrule Bratton's motion =
for rule 45=20
sanctions.
We affirm the judgment of the =
trial=20
court. All pending motions are=20
overruled. Tim Taft Justice Panel consists of Justices =
Taft, Alcala,=20
and Hanks.=20
1. Specifically, Pelican State alleged that, =
approximately eight months after Bratton had begun his employment =
with=20
Pelican State, Bratton's clinic (Slidell Physical Therapy Center) =
was=20
organized and registered as a Louisiana limited liability company. =
Pelican=20
State also alleged that Bratton had told Zimmerman that he had =
spent time=20
during his last months of employment supervising construction of =
and=20
obtaining new permits for the clinic and that he had allowed the =
number of=20
patients at the Slidell clinic to dwindle.=20
2. U.S. Const. amend. XIV, =A7 1.=20
3. See Tex. Civ. Prac. & Rem. =
Code Ann. =A7=20
17.042 (Vernon 1997) 4. We note that, in its reply brief, Pelican =
State=20
asserts that it "does not point to Bratton's use of the 'Contact =
Us' link=20
on USPT's website as the basis for specific [personal] =
jurisdiction," but=20
instead points to his use of that site as "evidence that he knew, =
or at=20
least should have known, that he was forming an employment =
relationship=20
with a Texas resident prior to signing his contract."=20
5. Pelican State's allegations against =
Bratton were=20
that he breached his duties owed to it--that is, that he acted =
outside his=20
role as Pelican State's employee and thus acted in his individual=20
capacity--in divulging Pelican State's confidential information,=20
soliciting its customers, and competing with it. These alleged =
"ultra=20
vires" actions--which occurred in Louisiana--are separate from =
Bratton's=20
actions listed above on which Pelican State relies to show general =
personal jurisdiction over Bratton. That is, the matters on which =
Pelican=20
State bases its appeal are routine interactions between an =
employee of=20
Pelican State (Bratton) and one of Pelican State's limited =
partners=20
(USPT); they are not the kind of actions that can be attributed to =
Bratton=20
in his individual capacity. Pelican State has not argued and did =
not=20
produce evidence to show=20
otherwise. |