In=20 The
For=20 The
TABOR, =
CHHABRA &=20
GIBBS, P.A. AND DARRYL GIBBS, Appellants MEDICAL =
LEGAL=20
EVALUATIONS, INC. AND BRUCE L. HALBRIDGE, M.D.,=20
Appellees
On =
Appeal from the=20
164th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2006-07498
O P I N =
I O=20
N Appellants, Tabor, Chhabra =
& Gibbs,=20
P.A. ("TCG") and Darryl Gibbs ("Gibbs"), filed this interlocutory =
appeal=20
challenging the trial court's denial of their special appearance. =
In four=20
issues, TCG and Gibbs contend that the trial court erred in =
denying their=20
special appearance because (1) there is legally and factually =
insufficient=20
evidence to support some of the trial court's findings of fact, =
(2)=20
several of the trial court's conclusions of law are erroneous, and =
(3)=20
neither TCG's nor Gibbs's contact with the state of Texas gives =
rise to=20
specific or general jurisdiction. I.=20
Background A. The Parties and =
Their=20
Relationships TCG is a =
Mississippi law=20
firm without any offices, employees, clients, bank accounts, or =
property=20
in Texas. Gibbs is an attorney and partner at TCG, who is licensed =
to=20
practice law only in Mississippi. Like TCG, Gibbs has no offices,=20
employees, clients, bank accounts, or property in Texas. =
In 2002, TCG and Gibbs sought =
the=20
services of The TASA Group, Inc. ("TASA"), a Pennsylvania-based =
referral=20
company, in finding a medical expert to testify in the area of =
obstetrics=20
and gynecology in a matter pending in a Mississippi state court.=20
(2) The terms of the relationship between TASA =
and TCG=20
were outlined in a Memorandum of Confirmation (the "Memorandum") =
addressed=20
to Gibbs from a TASA representative. The "Terms" of the Memorandum state the rate that TCG would pay =
for=20
expert services and that the payment of the testifying expert's =
fees was=20
to be through TASA--that is, all bills were to be payable directly =
to TASA=20
upon presentment. The Terms also state that the parties both agree =
to the=20
exclusive concurrent jurisdiction and venue of the Montgomery =
County Court=20
of Common Pleas of the Commonwealth of Pennsylvania and the U.S. =
District=20
Court of the Eastern District of Pennsylvania for the resolution =
of "any=20
disputes arising under this Memorandum" and that Pennsylvania law =
will=20
govern the construction of the Memorandum. The Memorandum does not =
make=20
any reference whatsoever to the State of Texas or Texas law. =
Finally, the=20
Memorandum provides the following warning: [TASA] is not responsible for qualifying the Expert you use. It =
is your=20
responsibility to review the Expert's qualifications directly with =
the=20
Expert, including any resume, background, personal information, =
and vital=20
statistics, so that you are certain that the Expert is qualified =
and=20
credible in all respects and available for all of your needs . . . =
. In=20
determining whether to use the Expert, you will rely solely and=20
exclusively on your own investigation and judgment whether the =
Expert is=20
qualified and credible. Pursuant to this Memorandum, TASA referred appellees, Bruce =
Halbridge,=20
M.D. and Medical Legal Evaluations, Inc. (collectively =
"Halbridge), to TCG=20
and Gibbs. Halbridge had previously served as a medical consultant =
for TCG=20
in another lawsuit. According to the Memorandum, Halbridge was =
asked by=20
TASA to make the initial contact with TCG. Halbridge is a doctor licensed to practice medicine in Texas =
and in New=20
York. He also serves as president of Medical Legal Evaluations, =
Inc. , a=20
corporation located and incorporated in Texas that provides =
litigation=20
consulting services in the area of medical malpractice. =
Halbridge's=20
Agreement with TASA provided that his services were for TASA's =
client, not=20
TASA. All work accomplished on behalf of a TASA client was to be =
billed=20
through TASA. Halbridge was to send TASA the bill for his =
services, and=20
TASA would pay Halbridge his share. The Agreement, which was =
governed by=20
the laws of the Commonwealth of Pennsylvania, provided that=20
"responsibility for payment rests with TASA's client, and not with =
TASA." TCG and Gibbs accepted TASA's recommendation, and, over the =
course of=20
the next three years, Halbridge, TCG, and Gibbs prepared for trial =
in=20
Mississippi. During this period of time, TCG and Gibbs =
corresponded with=20
Halbridge in his Texas office. According to Halbridge, all of his=20
preparatory work for the Mississippi trial was done in Texas.=20
Specifically, he testified by affidavit that, at his Houston =
office, he=20
received medical records for his review and analysis. He also =
prepared his=20
expert report from his Houston office and corresponded with =
attorneys from=20
TCG by telephone. The only time Halbridge spent in Mississippi was =
the=20
time he spent testifying at trial, a period of approximately two =
days.=20
According to TCG and Gibbs, Halbridge's testimony at trial went =
poorly.=20
It was discovered on cross-examination that he had previously =
testified as=20
an expert in areas in which he was not board certified. Gibbs sent =
a=20
letter to TASA, in Pennsylvania, expressing his dissatisfaction =
with=20
Halbridge's testimony. The letter stated, in relevant part, as =
follows:=20
It was my understanding after reading your mail out material =
and=20
visiting your website that TASA prides itself as being the best of =
the=20
best expert witness locator [sic] for attorneys anywhere. With that said, I would assume most attorneys do not feel the =
need to=20
do a background search of experts they hire through TASA assuming =
TASA=20
would do their homework for us. We also assume this since TASA =
charges=20
such a heavy fee for locating these experts. I want you to know =
Dr.=20
Halbridge has a checkered past and in fact he admitted on the =
witness=20
stand that he lists himself on the internet with over a dozen =
expert=20
providers. I want to draw your attention to ALM Experts so that =
you know=20
that Dr. Halbridge also holds himself out as a hair analysis =
expert.=20
Please be advised that Dr. Halbridge is an OBGYN yet still holds =
himself=20
out on the Internet as a hair analysis expert. Please be advised =
that this=20
was brought up at trial, a trial that we lost due to the lack of=20
credibility of Dr. Halbridge. Dr. Halbridge also testified that he has provided expert =
opinions in=20
the past based on a breach of the standard of care for =
pulmonologists,=20
internal medicine doctors, and emergency room physicians among =
others.=20
This man will provide an expert opinion outside of his specialty =
at a=20
moment's notice. I enclosed a copy of Dr. Halbridge's online =
petition for=20
a Russian bride just so you can understand what we are dealing =
with. At=20
this time, I am requesting a full refund of the experts fees I =
paid in=20
regard to Felicia Wells's file. I know a lot of attorneys that =
practice=20
medical negligence and I am a member of the Mississippi Trial =
Lawyers=20
Association and American Trial Lawyers Association. I want TASA to =
right=20
this wrong and refund the expert fees I paid in regard to the =
Felicia=20
Wells' case. Pursuant to this letter, TASA refunded the fees paid by TCG and =
Gibbs=20
and did not tender payment to Halbridge for his services. B. The Lawsuit Halbridge sued TCG and Gibbs alleging causes of action for =
contract=20
claims for breach of contract and quantum meruit and tort claims =
for civil=20
theft, defamation and business disparagement, and tortious =
interference=20
with existing and prospective contractual relationships. 1. Plaintiff Medical Legal Evaluations, Inc. ("MLE") is a Texas =
Corporation. 2. Plaintiff Bruce L. Halbridge, M.D. ("Halbridge") is an=20
obstetrician/gynecologist residing and practicing in Houston,=20
Texas. 3. Defendant Tabor, Chhabra & Gibbs, P.A. ("TCG") is a =
Mississippi=20
professional association of lawyers. 4. Defendant Darryl Gibbs ("Gibbs") is a lawyer residing and =
practicing=20
in Mississippi. 5. The TASA Group, Inc. ("TASA") is a Pennsylvania =
corporation. 6. On or about Fall 2002, TCG contracted with TASA (the "TCG =
Contract")=20
to find an expert witness for TCG's client in a Mississippi =
lawsuit ("the=20
Engagement"). 7. TASA contracted with MLE and Halbridge" [sic] to perform the =
Engagement (the "TASA Contract"). 8. After entering into the TASA Contract, TASA had no more =
duties under=20
the TCG Contract except billings and collections. 9. After the TASA Contract was entered into, all Engagement =
activities=20
were directed by TCG and Gibbs. These activities included =
assigning duties=20
to Halbridge in Texas and Mississipi, sending letters and other =
materials=20
to Halbridge in Texas, and scheduling Halbridge's Engagement =
activities in=20
Texas and Mississippi, including his court appearance. 10. Most of Halbridge's Engagement activities were performed in =
Texas. 11. Following the Engagement, Gibbs and TCG were dissatisfied =
with MLE=20
and Halbridge's performance. Apparently, the trial did not go =
well.=20
12. Gibbs and TCG sent a letter to TACA [sic] that MLE and =
Halbridge=20
allege was defamatory and damaging to its/his professional =
reputation in=20
Texas. 13. Gibbs and TCG did not pay TACA [sic] for the Engagement =
activities=20
of MLE and Halbridge. 14. At the time of the Engagement, TACA [sic] advertised in =
Texas and=20
used Texas telephone numbers, among others. 15. Any conclusion of law which also constitutes a finding of =
fact is=20
adopted as finding of fact. In addition, the trial court issued the following conclusions =
of=20
law. 1. Any finding of fact which also constitutes a conclusion of =
law is=20
adopted as a conclusion of law. 2. Defendants' Special Appearance was not sworn and is =
ineffectual as a=20
matter of law to challenge this Court's jurisdiction. Defendants=20
subsequently cured this defect by way of an Amended Special=20
Appearance. 3. There is a substantial connection between TCG, Gibbs and the =
State=20
of Texas arising from the Engagement. 4. The causes of action alleged herein arise from and relate to =
the=20
Engagement. 5. Plaintiffs, Texas residents, are third party beneficiaries =
of the=20
TCG Contract. 6. TCG and Gibbs recruited MLE and Halbridge, Texas residents, =
through=20
the intermediary TACA [sic], for the Engagement. 7. There was some evidence adduced at the hearing that TACA =
[sic] is=20
also located in Texas. 8. All factual disputes in the record of the Special Appearance =
hearing=20
were resolved in favor of this Court's Order Denying the Special=20
Appearance. 9. TCG and Gibbs purposefully availed themselves of the =
privilege of=20
conducting activities in Texas such that they could reasonably =
anticipate=20
being called into a Texas court. 10. The assumption of jurisdiction by this Court does not =
offend=20
traditional notions of fair play and substantial justice, =
considering the=20
burden on TCG and Gibbs, the interests of Texas in adjudicating =
the=20
dispute, MLE and Halbridge's interest in obtaining convenient and=20
effective relief, the interstate judicial system's interest in =
achieving=20
the most efficient resolution of controversies, and the shared =
interest of=20
the several states in furthering fundamental substantive social =
policies.=20
11. This Court has specific jurisdiction over the Defendants. =
II. Special Appearance In their third issue, TCG and Gibbs argue that =
the=20
trial court erred in denying their special appearance because =
their=20
contacts with the state of Texas do not give rise to specific=20
jurisdiction. We agree. A. Standard of Review The plaintiff bears the initial burden of =
pleading=20
allegations sufficient to bring a nonresident defendant within the =
personal jurisdiction of a Texas court. BMC Software Belg., =
N.V. v.=20
Marchand, 83 S.W.3d 789, 793 (Tex. 2002); Glattly v. CMS =
Viron=20
Corp., 177 S.W.3d 438, 445-46 (Tex. App.--Houston [1st Dist.] =
2005,=20
no pet.). Upon filing a special appearance, however, the =
nonresident=20
defendant assumes the burden of negating all the bases of personal =
jurisdiction alleged by the plaintiff. Marchand, 83 =
S.W.3d at=20
793. The existence of personal jurisdiction is a question =
of law,=20
reviewed de novo, but that determination must sometimes be =
preceded by the=20
resolution of underlying factual disputes. Preussag =
Aktiengesellschaft=20
v. Coleman, 16 S.W.3d 110, 113 (Tex. App.--Houston [1st =
Dist.] 2000,=20
pet. dism'd w.o.j.). When, as here, the trial court issues =
findings of=20
fact and conclusions of law, we may review the findings of fact on =
legal=20
and factual sufficiency grounds and review the conclusions of law =
de novo=20
as a legal question. Silbaugh v. Ramirez, 126 S.W.3d 88, =
94 (Tex.=20
App.--Houston [1st Dist.] 2002, no pet.). If there is more than a=20
scintilla of evidence to support a factual finding, the legal =
sufficiency=20
challenge fails. Shell Compa=F1ia Argentina de Petroleo, S.A. =
v. Reef=20
Exploration, Inc., 84 S.W.3d 830, 836 (Tex. App.--Houston =
[1st Dist.]=20
2002, pet. denied). A ruling will be reversed for factual =
insufficiency=20
only if it is so against the great weight and preponderance of the =
evidence as to be manifestly erroneous or unjust. Id. =
Although we may not review the conclusions of law for factual=20
insufficiency, we may review the trial court's legal conclusions =
drawn=20
from the facts to determine their correctness. Silbaugh, =
126=20
S.W.3d at 94. If a conclusion of law is erroneous, but the proper =
judgment=20
was rendered, the erroneous conclusion of law does not require =
reversal.=20
BMC Software, 83 S.W.3d at 794. B. Requirements of Personal Jurisdiction Texas courts may assert personal jurisdiction =
over a=20
nonresident defendant only if the Texas long-arm statute Under the Due Process Clause of =
the=20
Fourteenth Amendment, jurisdiction is proper if a nonresident =
defendant=20
established "minimum contacts" with Texas and maintenance of the =
suit=20
would not offend "traditional notions of fair play and substantial =
justice." A defendant's contacts with a =
forum can=20
give rise to either general or specific jurisdiction. CSR Ltd. =
v.=20
Link, 925 S.W.2d 591, 595 (Tex. 1996). Specific jurisdiction =
is=20
established if the defendant's liability arises from, or is =
related to, an=20
activity conducted within the forum. Id. When specific=20
jurisdiction is asserted, the minimum contacts analysis focuses on =
the=20
relationship among the defendant, the forum, and the litigation. =
Blair=20
Communications, Inc. v. SES Survey Equip. Servs., Inc., 80 =
S.W.3d=20
723, 727 (Tex. App.--Houston [1st Dist.] 2002, no pet.). For a=20
nonresident's forum contacts to support the exercise of specific=20
jurisdiction, the contacts must be purposely directed at or take =
place=20
within the forum and there must be a "substantial connection" =
between=20
those contacts and the operative facts of the litigation. =
C. Jurisdictional=20
Analysis For a Texas =
forum to=20
properly exercise specific jurisdiction in this =
case, (1) TCG=20
and Gibbs must have made minimum contacts with Texas by =
purposefully=20
availing themselves of the privilege of conducting activities here =
and (2)=20
TCG's and Gibbs's liability must have arisen from or be related to =
those=20
contacts. Halbridge =
asserts that=20
TCG and Gibbs established sufficient minimum contacts by (1) =
contracting=20
with a Texas resident when either party is to perform the contract =
in=20
whole or in part in Texas; (2) committing a tort in whole or in =
part in=20
Texas; and (3) recruiting Texas residents for employment inside or =
outside=20
of Texas. Tex. Civ. Prac. & Rem. Code Ann. =A7 17.042. =
TCG and=20
Gibbs argue that the trial court lacks specific jurisdiction over =
them=20
because they met their burden of negating each of the potential=20
jurisdictional bases. We address each jurisdictional basis =
individually.=20
1. Contracting with a =
Texas=20
Resident TCG and Gibbs =
initially=20
argue that the trial court lacked specific jurisdiction because =
(1) no=20
contract with Halbridge exists and (2), even if a contract did =
exist, a=20
single contract is not sufficient to establish specific =
jurisdiction.=20
Halbridge concedes that there was no written contract between =
himself and=20
TCG and Gibbs. Nevertheless Halbridge argues that he was a =
third-party=20
beneficiary to the contract between TCG, Gibbs, and TASA and the =
parties'=20
continuing obligations to one another under the Memorandum are =
sufficient=20
minimum contacts to establish that TCG and Gibbs "purposefully =
availed"=20
themselves of the privilege of conducting activities within Texas =
and that=20
there was a substantial connection between the contract and the =
operative=20
facts of this litigation. We disagree. a. Third-Party=20
Beneficiary In determining whether a third =
party has=20
the right to enforce a contract, courts look to the express intent =
of the=20
contracting parties. MCI Telecomms. Corp. v. Tex. Utils. Elec. =
Co., 995 S.W.2d 647, 651 (Tex. 1999). There is a presumption =
against=20
the existence of third party beneficiary contracts. See =
id. A=20
court should not imply or create third-party-beneficiary rights =
unless=20
they are expressly intended by the contracting parties and plainly =
and=20
fully spelled out in the four corners of the contract. EPGT =
Tex.=20
Pipeline, L.P. v. Harris County Flood Control Dist., 176 =
S.W.3d 330,=20
340 (Tex. App.--Houston [1st Dist.] 2004, pet. dism'd). Thus, =
courts=20
should presume that an agreement confers no =
third-party-enforcement rights=20
unless it "clearly appears" that the contract intends a third =
party to=20
benefit, to the point of suing upon the contract. MCI =
Telecomms.,=20
995 S.W.2d at 651. Accordingly, a contract does not confer=20
third-party-beneficiary rights unless: (1) the contract plainly =
expresses=20
the third-party obligation of the bargain-giver, (2) it is =
unmistakable=20
that a benefit to the third party is within the contemplation of =
the=20
primary contracting parties, and (3) the primary parties =
contemplate that=20
the third party would be vested with the right to sue for =
enforcement of=20
the contract. EPGT Tex. Pipeline, 176 S.W.3d at 340. The =
fact=20
that a third party receives incidental benefits from a contract =
does not=20
establish a right of action to enforce the contract. MCI=20
Telecomms., 995 S.W.2d at 650. Even if Halbridge could prove =
that he was=20
a third-party beneficiary of the agreement between TASA and TCG =
and Gibbs,=20
the agreement here does not subject TCG and Gibbs to jurisdiction =
in Texas=20
because it is between TASA, a Pennsylvania resident, and TCG and =
Gibbs,=20
who are both from Mississippi. Moreover, nothing in the agreement =
directs=20
or requires performance in Texas. See Burger King, 471 =
U.S. at=20
488, 105 S. Ct. at 2192. Thus, an allegation of third-party =
beneficiary=20
status relating to this contract is insufficient to confer =
jurisdiction by=20
a Texas court. Rather, Halbridge was required to establish a =
"substantial=20
connection" between the agreement and the state of Texas =
sufficient to=20
warrant the exercise of specific jurisdiction and satisfy federal=20
constitutional due process requirements. See Moki =
Mac River=20
Expeditions, 221 S.W.3d at 585.=20
As explained below, Halbridge did not make this showing. =
b. Parties' Continuing=20
Obligations Halbridge argues that there is =
a=20
substantial connection between the contract and the State of Texas =
and the=20
parties' "continuing obligations" to one another as a result of =
the=20
Memorandum are sufficient minimum contacts to establish that TCG =
and Gibbs=20
"purposefully availed" themselves of the privilege of conducting=20
activities within Texas. Despite the language of the Memorandum, =
to which=20
he claims to be a third-party beneficiary, stating that all =
disputes=20
concerning the Memorandum are to be resolved in Pennsylvania =
courts and=20
according to Pennsylvania law, Halbridge argues that (1) his =
preparatory=20
work completed in his Houston office and (2) the correspondence =
between=20
TCG and Gibbs and Halbridge in Texas are sufficient to warrant the =
exercise of specific jurisdiction in this case. We disagree. an exchange of communications =
in the=20
course of developing and carrying out a contract does not, by =
itself,=20
constitute the required purposeful availment of the benefits and=20
protections of Texas law. Otherwise, jurisdiction could be =
exercised based=20
only on the fortuity that one of the parties happens to reside in =
the=20
forum state. Moncrief Oil Int'l Inc. v. =
OAO=20
Gazprom, 481 F.3d 309, 312 (5th Cir. 2007) (citations =
omitted).=20
For these reasons, we hold that =
TCG and=20
Gibbs did not contract with a Texas resident when either party was =
to=20
perform the contract in whole or in part in Texas, and the =
exercise of=20
specific jurisdiction based on the Memorandum's existence and =
Halbridge's=20
allegations of defendants' conduct regarding the Memorandum would =
not=20
comport with federal constitutional due process requirements. =
See=20
Tex. Civ. Prac. & Rem. Code Ann. =A7 17.042(1).=20
2. Committing a Tort in =
Texas TCG and Gibbs =
next argue=20
that the trial court lacked specific jurisdiction because there is =
an=20
insufficient nexus between their alleged conduct in the commission =
of the=20
torts of defamation and business disparagement, tortious =
interference, or=20
civil theft and the state of Texas. We address each of these =
causes of=20
action in turn. a. Defamation and =
Business=20
Disparagement Halbridge's pleadings allege =
that Gibbs's=20
letter to TASA, demanding a refund of the fees paid to TASA for=20
Halbridge's services, contained defamatory statements. =
Specifically,=20
Halbridge alleged that, TASA declined to send MLE the =
amount=20
forwarded to it by [TCG] for transmission to MLE following the [ ] =
trial=20
because Gibbs stated to TASA that Halbridge's testimony was =
ridiculous.=20
This statement was false, it was made intentionally and =
maliciously, and=20
with specific intent to harm Halbridge. Gibbs and [TCG] knew at =
the time=20
the statement was made that Halbridge was licensed to practice =
medicine in=20
Texas, and further they knew that Halbridge maintained an active =
medical=20
and consulting practice in Texas. "The tort of libel is generally =
held to=20
occur wherever the offending material is circulated." Keeton =
v.=20
Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S. Ct. 1473, =
1479=20
(1984); see De Prins v. Van Damme, 953 S.W.2d 7, 14 (Tex. =
App.--Tyler 1997, writ denied) ("[T]ort of slander occurs in the =
state in=20
which it is heard, i.e., published or circulated."). Here, the =
letter,=20
written by Gibbs in Mississippi, was sent to TASA in Pennsylvania. =
The=20
letter was never circulated in Texas. Nevertheless, relying on =
Supreme Court=20
authority in Calder v. Jones, Halbridge argues that, =
because the=20
reputational injury stemming from Gibbs's statement was suffered =
in Texas,=20
the exercise of specific jurisdiction over this action in Texas is =
warranted. 465 U.S. 783, 104 S. Ct. 1482 (1984). His reliance on=20
Calder in support of this argument is misplaced. In=20
Calder, respondent, a professional entertainer who lived =
and=20
worked in California and whose television career was centered =
there,=20
brought suit in a California court, alleging that she had been =
libeled in=20
an article written and edited by petitioners in Florida and =
published in=20
the National Enquirer, a national magazine having its largest =
circulation=20
in California. Id. at 784-85, 104 S. Ct. at 1484-85. In =
holding=20
that the Florida petitioners were subject to the personal =
jurisdiction of=20
the California court, the United States Supreme Court noted that, =
[t]he=20
allegedly libelous story concerned the California activities of a=20
California resident. It impugned the professionalism of an =
entertainer=20
whose television career was centered in California. The article =
was drawn=20
from California sources, and the brunt of the harm, in terms of =
both=20
respondent's emotional distress and the injury to her professional =
reputation, was suffered in California. In sum, California is the =
focal=20
point both of the story and of the harm suffered. Id. at 788-89, 104 S. =
Ct. at=20
1486. The Texas Supreme Court has warned that, in applying=20
Calder, we should be mindful of shifting our focus from =
"'the=20
relationship among the defendant, the forum, and the =
litigation'=20
to the relationship among the 'plaintiff, the forum . . . =
and the=20
litigation.'" See Michiana, 168 S.W.3d at 790. "The =
important=20
factor was the extent of the defendant's activities, not merely =
the=20
residence of the victim." Id. at 789. The facts of the instant case =
are=20
distinguishable from those in Calder. In this case,=20
unlike in Calder, the state in which specific =
jurisdiction=20
is sought is not the focal point of the alleged unlawful =
statements. Here,=20
the allegedly libelous letter concerned Halbridge's statements in =
a=20
Mississippi court, not in Texas. This letter was sent only to a =
TASA=20
representative in Pennsylvania. It was not sent to Texas. While =
his=20
medical practice and consulting business is centered in Texas, =
Halbridge=20
does testify in matters pending outside of Texas, as is evident =
from his=20
testimony in Mississippi for TCG and Gibbs and his registry with =
national=20
expert-referral companies. While some of Halbridge's alleged =
reputational=20
injury may be suffered in Texas, Texas is not the focus of the =
allegedly=20
defamatory statement. Thus, there is not a substantial connection =
between=20
the defendants' alleged conduct and the state of Texas sufficient =
to=20
warrant the exercise of specific jurisdiction. See =
b. =
Tortious=20
Interference We next address Halbridge's =
tortious=20
interference claim, in which he alleges that TCG and Gibbs =
"willfully and=20
intentionally interfered with [his contract with TASA] by defaming =
[him]=20
with the intent to encourage TASA to withhold funds due to MLE." =
To=20
establish liability for interference with a prospective =
contractual or=20
business relation, Halbridge must prove that he was harmed by =
conduct on=20
the part of TCG and Gibbs, which was either independently tortious =
or=20
unlawful. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d =
711, 713=20
(Tex. 2001). Conduct that would violate some other recognized tort =
or duty=20
is "independently tortious." Id. Similarly, the elements =
of=20
tortious interference with an existing contract claim include an =
act of=20
willful or intentional interference. Prudential Ins. Co. of =
Am. v.=20
Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). Here, =
Halbridge=20
has pleaded Gibbs's allegedly defamatory statement as the =
"independently=20
tortious" or willful and intentional act of interference. The tort =
of=20
defamation thus underlies Halbridge's tortious interference =
claims.=20
Because we have concluded that Halbridge's allegations concerning =
the=20
alleged defamation are insufficient to warrant the exercise of =
specific=20
jurisdiction, we also conclude that the same allegations, which =
also=20
support Halbridge's claim for tortious interference with existing =
and=20
prospective contractual relations, are insufficient to support the =
exercise of specific jurisdiction in this case.=20
c. Civil=20
Theft We next =
address=20
Halbridge's civil theft of services claim under chapter 134 of the =
Texas=20
Civil Practices and Remedies Code. See Tex. Civ. Prac. =
& Rem.=20
Code Ann. =A7 134.001-.005 (Vernon 2005). The entirety of =
Halbridge's=20
pleadings on civil theft state that he "incorporates each of the =
foregoing=20
factual allegations herein as if fully set forth. [TCG and Gibbs] =
have=20
violated the Texas Theft Liability Act. As a result of their acts=20
constituting theft of service, [Halbridge] has been damaged in an =
amount=20
which exceeds the minimum jurisdictional limits of the Court. =
[Halbridge]=20
seeks recovery of its actual damages, and reasonable and necessary =
attorney's fees as provided for in the Act." Halbridge points to =
no new or=20
additional contacts with the state of Texas to support his civil =
theft=20
cause of action. As we have previously determined, the exercise of =
specific jurisdiction based on the allegations of the parties' =
"continuing=20
obligations" to one another as a result of the Memorandum contacts =
and=20
factual allegations in Halbridge's breach of contract, defamation, =
and=20
tortious interference claims would not comport with federal =
constitutional=20
due process requirements. These same facts likewise cannot support =
the=20
exercise of specific jurisdiction under Halbridge's civil theft =
claims.=20
See Tex. Civ. Prac. & Rem. Code Ann. =A7=20
17.042(2). 3. Recruiting Texas =
Residents for=20
Employment TCG and Gibbs =
finally=20
argue that the trial court lacked specific jurisdiction because =
TASA, the=20
intermediary through which Halbridge alleges TCG and Gibbs =
recruited him,=20
is not located in the state of Texas. Specifically, TCG and Gibbs =
argue=20
that the third subsection of the long-arm statute--providing that =
a=20
nonresident defendant "does business" in Texas if it "recruits =
Texas=20
residents, directly or through an intermediary located in this =
state, for=20
employment inside or outside of this state"--requires that the=20
intermediary have a physical presence in Texas. See Tex. =
Civ.=20
Prac. & Rem. Code Ann. =A7 17.042(3). In response, Halbridge =
argues=20
that, because TASA maintained a local Texas telephone number and=20
advertised in Texas publications, it was amenable to jurisdiction =
in Texas=20
and, thus, is "located" in Texas for purposes of the long-arm =
statute. As both parties note, the term "located" is undefined by =
statute, and=20
we have found no case law providing a definition. Assuming, =
without=20
deciding, that TASA is "located" in Texas for purposes of the =
long-arm=20
statute, the issue whether TCG and Gibbs recruited Halbridge =
remains. In=20
BHP de Venezuela, C.A. v. Casteig, the Corpus Christi =
Court of=20
Appeals considered whether a Venezuelan corporation's contacts =
were=20
sufficient to confer specific jurisdiction where the Texas =
plaintiff=20
alleged that, pursuant to an agreement between the foreign =
corporation and=20
his Texas-based employer, he had been recruited to perform =
consulting=20
services for the corporation in Venezuela. 994 S.W.2d 321, 328 =
(Tex.=20
App.--Corpus Christi 1999, pet. denied). The Corpus Christi court =
held=20
that the Venezuelan corporation had not recruited the Texas =
plaintiff for=20
employment because the agreement between the foreign corporation =
and the=20
plaintiff's Texas-based employer contained no language indicative =
of=20
recruiting, and the Texas resident unilaterally sought the =
employment of=20
his Texas-based employer. Id. Here, while Halbridge had consulted with TCG =
on a=20
prior medical malpractice case, there is nothing in the record =
which=20
suggests that either TCG or Gibbs had any involvement in selecting =
Halbridge as the TASA-recommended expert witness in the present =
dispute.=20
Rather, the Memorandum from TASA to TCG and Gibbs indicates that =
TASA=20
asked Halbridge to make the initial contact. There is no other =
language in=20
the Memorandum that is indicative of any recruiting on the part of =
TCG or=20
Gibbs. For this reason, we conclude that TCG and Gibbs did not =
recruit=20
Halbridge for employment inside or outside of this state, and the =
exercise=20
of specific jurisdiction based on the allegations of recruitment =
would not=20
comport with federal constitutional due process requirements. =
See=20
Tex. Civ. Prac. & Rem. Code Ann. =A7 17.042(3); see =
also=20
Casteig, 994 S.W.2d at 328. For the reasons stated above, TCG and Gibbs =
are not=20
subject to the exercise of personal jurisdiction by the trial =
court, and=20
we hold that the trial court erred in making the legal conclusion =
that it=20
had specific jurisdiction over them. See Tex. Civ. Prac. =
&=20
Rem. Code Ann. =A7 17.042; Tri-State, 184 S.W.3d at 248. =
Accordingly, we sustain TCG's and Gibbs's third issue. Because =
our=20
holding that the trial court lacks specific jurisdiction is =
dispositive of=20
this interlocutory appeal, we do not reach TCG's or Gibbs's first =
or=20
second issues. III. Conclusion We reverse the order denying appellants' =
special=20
appearance and remand with instructions to dismiss Tabor, Chhabra & Gibbs, P.A. and =
Darryl=20
Gibbs for lack of personal jurisdiction. George C. Hanks, Jr. Justice Panel consists of Justices Nuchia, Hanks, and Bland.=20
1. Because=20
appellees, Medical Legal Evaluations, Inc. and Bruce L. Halbridge, =
M.D.=20
(collectively "Halbridge") concede that general jurisdiction was =
not=20
alleged as a basis for the exercise of personal jurisdiction in =
the trial=20
court, we need not address TCG and Gibbs's fourth issue on appeal =
relating=20
to general jurisdiction.=20
2. TASA was dismissed with prejudice from =
the instant=20
dispute and is not a party to this appeal.=20
3. Halbridge =
also sued=20
TASA, but it is not a party to this appeal.=20
4. The =
long-arm statute=20
permits Texas courts to exercise personal jurisdiction over a =
nonresident=20
defendant that "does business" in Texas. The statute provides that =
a=20
nonresident "does business" in this state if the nonresident:=20
(1) contracts by mail or =
otherwise with a=20
Texas resident and either party is to perform the contract in =
whole or in=20
part in this state; (2) commits a tort in whole or =
in part in=20
this state; or
(3) recruits Texas residents, =
directly or=20
through an intermediary located in this state, for employment =
inside or=20
outside this state. Tex. Civ. Prac. & Rem. Code =
Ann. =A7=20
17.042 (Vernon 1997).=20
5. In determining whether assumption of =
jurisdiction=20
by the forum state would offend traditional notions of fair play =
and=20
substantial justice, consideration is given to (1) the burden on =
the=20
defendant, (2) the interest of the forum state in adjudicating the =
dispute, (3) the plaintiff's interest in obtaining convenient and=20
effective relief, (4) the interstate judicial system's interest in =
obtaining the most efficient resolution of controversies, and (5) =
the=20
shared interest of the several states in furthering fundamental=20
substantive social policies. Guardian Royal Exch., 815 =
S.W.2d at=20
231.=20
6. TCG and Gibbs argue that Halbridge waived =
this=20
jurisdictional basis because he failed to assert it in his =
pleadings. The=20
jurisdictional section of Halbridge's amended petition alleges =
that TCG=20
and Gibbs are doing business in Texas by "entering into contracts =
by mail=20
or otherwise with Texas residents where either party is to perform =
the=20
contract in whole or in part in Texas, by advertising its services =
nationwide and in Texas and by committing torts in Texas and/or =
committing=20
torts directed at Texas residents." Thus, Halbridge did not =
specifically=20
list the recruitment of a Texas resident for employment as a basis =
for=20
jurisdiction in his pleadings. He did, however, assert this basis =
in his=20
written response to TCG's and Gibbs's special appearance and in =
his=20
arguments at the special appearance hearing. Rule 120a(3) of the =
Texas=20
Rules of Civil Procedure provides that "[t]he court shall =
determine the=20
special appearance on the basis of the pleadings, any stipulations =
made by=20
and between the parties, such affidavits and attachments as may be =
filed=20
by the parties, the results of discovery processes, and any oral=20
testimony." Tex. R. Civ. P. 120a(3). Because the rule does not =
limit the=20
court to determining the special appearance on the pleadings =
alone, we=20
conclude that this argument is presented for our review.=20
7. Suzanne Olita, TASA's president, =
testified that all=20
calls made to the Texas telephone number are forwarded directly to =
Pennsylvania. "There is no answering service or other person =
physically=20
present in Texas answering telephones or conducting any other =
business in=20
=
Texas."