In=20
The
For=20
The
HEALIX =
INFUSION=20
THERAPY, INC., Appellant SOUTH =
FLORIDA=20
INFECTIOUS DISEASES & TROPICAL MEDICINE CENTERS, LLC,=20
Appellee
On =
Appeal from the=20
234th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2007-36135
MEMORANDUM=20
OPINION In this =
accelerated,=20
interlocutory appeal, appellant, Healix Infusion Therapy =
("Healix"),=20
challenges the trial court's order sustaining the special =
appearance of=20
appellee, South Florida Infectious Diseases & Tropical =
Medicine=20
Center, LLC ("SFID"), and dismissing Healix's causes of action =
against=20
SFID. We affirm.
Healix is a Texas corporation =
with its=20
principal place of business in Fort Bend County. The=20
contract included the following provision, "This Agreement shall =
be=20
governed, interpreted, and construed according to the laws of the =
State of=20
Texas, without giving effect to its conflict of laws provisions. =
This=20
Agreement shall be performable in Harris County, Texas." In =
addition to=20
specifying Healix's responsibilities and the parties' agreement =
regarding=20
compensation, the contract also precluded SFID from opening a =
competing=20
office infusion center in certain nearby areas in =
Florida. Healix sued=20
SFID and Perez-Morales in Harris County for breach of contract. =
Healix=20
alleged that SFID and Perez-Morales owed money under the contract. =
Healix=20
further alleged that SFID and Perez-Morales had breached the=20
noncompetition provisions of the contract through actions taken in =
Florida. In its=20
original petition, Healix alleged that jurisdiction was proper =
because the=20
amount in controversy was within the jurisdictional limits of the =
district=20
court. The petition alleged other facts germane to Healix's =
claims, but it=20
did not recite any actions taken by SFID in Texas. SFID and=20
Perez-Morales filed a verified special appearance, denying both =
general=20
and specific jurisdiction. In particular, they denied: (1) =
residing in=20
Texas; (2) maintaining a registered agent for service of =
process in=20
Texas; (3) engaging in business, trade, or commerce in Texas (or =
being=20
authorized to do so); (4) maintaining a place of business in Texas =
or=20
regularly employing Texas residents; (5) owning property in Texas; =
(6)=20
paying taxes in Texas or soliciting business in Texas; =
(7) developing=20
a substantial connection with Texas, purposefully or otherwise; =
and (8)=20
having continuing and systematic contacts with Texas. In its=20
response, Healix argued that the contract's choice-of-law =
provision=20
mandated jurisdiction in Texas. Healix also argued that the =
numerous=20
activities it had conducted in Texas supported the exercise of =
personal=20
jurisdiction as to SFID. Healix attached several affidavits =
describing the=20
activities in which Healix engaged. A few days before the trial =
court's=20
hearing on SFID's special appearance, Healix amended its petition =
to=20
allege the contract, the guaranty, and, in general, the Texas =
long-arm=20
statute as bases for the court to exercise personal jurisdiction. =
Like its=20
predecessor, the first amended petition did not recite any actions =
taken=20
by SFID in Texas. After a=20
hearing, the trial court sustained SFID's special appearance and =
dismissed=20
Healix's claims as to SFID for want of jurisdiction. The=20
existence of personal jurisdiction is a question of law reviewed =
de novo=20
by this Court. BMC Software Belg., N.V. v. Marchand, 83 =
S.W.3d=20
789 (Tex. 2002). However, this question must sometimes be preceded =
by=20
resolving underlying factual disputes. Id. at 794. When, =
as here,=20
the trial court does not issue fact findings, we presume that the =
trial=20
court resolved all factual disputes in favor of its ruling. =
Am. Type=20
Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. =
2002).Personal Jurisdiction "Texas=20
courts may assert personal jurisdiction over a nonresident =
defendant only=20
if the Texas long-arm statute authorizes jurisdiction and the =
exercise of=20
jurisdiction is consistent with federal and state due process =
standards."=20
Id. (citing Guardian Royal Exch. Assurance Ltd. v. =
English=20
China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)); =
see=20
Tex. Civ. Prac. & Rem. Code Ann. =A7=A7 17.041-.045 =
(Vernon Supp.=20
2007) (Texas's long-arm statute). The long-arm statute allows =
Texas courts=20
to exercise jurisdiction over a nonresident defendant that "does =
business"=20
in the state. Tex. Civ. Prac. & Rem. Code Ann. =A7 17.042 =
(Vernon Supp.=20
2007). In addition=20
to other acts that may constitute doing business, a nonresident =
does=20
business in this state if the nonresident: (1)=20
contracts by mail or otherwise with a Texas resident and either =
party is=20
to perform the contract in whole or in part in this =
state; (2) commits=20
a tort in whole or in part in this state; or (3)=20
recruits Texas residents, directly or through an intermediary =
located in=20
this state, for employment inside or outside this =
state. This list,=20
however, is not exhaustive. BMC Software, 83 S.W.3d at =
795. The=20
Texas Supreme Court has held that "section 17.042's broad language =
extends=20
Texas courts' personal jurisdiction as far as the federal =
constitutional=20
requirements of due process will permit." Id. (citation=20
omitted). Initially,=20
the plaintiff bears the burden of pleading allegations sufficient =
to bring=20
a nonresident defendant within the terms of the Texas long-arm =
statute.=20
Am. Type Culture Collection, 83 S.W.3d at 807. However, =
when a=20
nonresident defendant files a special appearance, that defendant =
assumes=20
the burden of negating all bases of personal jurisdiction that the =
plaintiff has alleged. Id. We consider=20
three elements of purposeful availment. See Michiana Easy =
Livin'=20
Country, 168 S.W.3d at 785; see also First Oil PLC v. ATP =
Oil=20
& Gas Corp., No. 01-07-00703-CV, 2008 WL 2186781 (Tex.=20
App.--Houston [1st Dist.] May 22, 2008, no pet.). First, we =
consider only=20
the defendant's own actions, not those of the plaintiff or any =
other third=20
party. Michiana Easy Livin' Country, 168 S.W.3d at 785; =
First=20
Oil PLC, 2008 WL 2186781, at *12; see also U-Anchor =
Advertising,=20
Inc. v. Burt, 553 S.W.2d 760, 762-63 (Tex. 1977) =
(quoting=20
Hanson, 357 U.S. at 253, 78 S. Ct. at 1240 (1958) ("The=20
unilateral activity of those who claim some relationship with a=20
non-resident defendant cannot satisfy the requirement of contact =
with the=20
forum State. The application of that rule will vary with the =
quality and=20
nature of the defendant's activity, but it is essential in each =
case that=20
there be some act by which the defendant purposefully avails =
itself of the=20
privilege of conducting activities within the forum State, thus =
invoking=20
the benefits and protections of its laws.")) Second, the=20
activities must be purposeful, not random, isolated, or =
fortuitous.=20
Michiana Easy Livin' Country, 168 S.W.3d at 785; =
First Oil=20
PLC, 2008 WL 2186781, at *12. "It is the quality =
rather than=20
the quantity of contacts that is determinative." =
First Oil=20
PLC, 2008 WL 2186781, at *12 (emphasis in original). Third, =
the=20
defendant must seek some benefit, advantage, or profit by virtue =
of its=20
activities in the proposed forum state, because this element is =
based on=20
the notion of implied consent. Michiana Easy Livin' =
Country, 168=20
S.W.3d at 785; First Oil PLC, 2008 WL 2186781 at *12. =
"A=20
choice-of-law provision is a consideration." Preussag=20
Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 125 (Tex. =
App.--Houston=20
[1st Dist.] 2000, pet. dism'd w.o.j.)); see Burger King, =
471 U.S.=20
at 482, 105 S. Ct. at 2187; see also Project Eng'g USA Corp. =
v. Gator=20
Hawk, Inc., 833 S.W.2d 716, 722 (Tex. App.--Houston [1st =
Dist.] 1992,=20
no writ) (contract containing choice-of-law and choice-of-forum =
clauses).=20
However, standing alone, it does not suffice to confer =
jurisdiction.=20
Preussag Aktiengesellschaft, 16 S.W.3d at 125; see =
Burger=20
King, 471 U.S. at 482, 105 S. Ct. at 2187. "Nor does it =
indicate a=20
voluntary submission to the personal jurisdiction of the state's =
courts in=20
the absence of any express understanding to that effect."=20
Preussag, 16 S.W.3d at 125. Our=20
jurisdictional analysis is further divided into general and =
specific=20
personal jurisdiction. CSR, Ltd. v. Link, 925 S.W.2d 591, =
595=20
(Tex. 1996). General jurisdiction will attach when "a defendant's =
contacts=20
in a forum are continuous and systematic permitting the forum to =
exercise=20
personal jurisdiction over the defendant even if the cause of =
action did=20
not arise from or relate to activities conducted within the forum =
state."=20
Id. To support general jurisdiction, the defendant's =
forum=20
activities must have been "substantial," which requires stronger =
evidence=20
of contacts than for specific personal jurisdiction. Preussag=20
Aktiengesellschaft, 16 S.W.3d at 114. Specific=20
jurisdiction lies when the defendant's alleged liability arises =
from or is=20
related to an activity conducted within the forum. BMC =
Software,=20
83 S.W.3d at 796. "For a nonresident defendant's forum contacts to =
support=20
an exercise of specific jurisdiction, there must be a substantial=20
connection between those contacts and the operative facts of the=20
litigation." Moki Mac River Expeditions v. Drugg, 221 =
S.W.3d 569,=20
585 (Tex. 2007). This requirement assesses "the strength of the =
necessary=20
connection between the defendant, the forum, and the litigation." =
Id.=20
In its=20
first amended petition, Healix alleges that jurisdiction is proper =
as to=20
SFID because it purposefully availed itself of the privileges and =
benefits=20
of conducting business in Texas by (1) executing the contract =
between the=20
parties, (2) expressly agreeing to a contract provision =
stating that=20
the contract would be "performable" in Harris County, and (3) =
consenting=20
to the application of Texas law in any controversy arising out of =
the=20
contract. At the hearing, Healix also alleged that SFID =
communicated with=20
Healix by telephone, facsimile, mail, and email on an ongoing =
basis.=20
Healix repeatedly detailed its own business activities in Texas in =
its=20
petition, response to SFID's special appearance, and arguments to =
the=20
trial court. SFID did=20
enter into a contract "by mail or otherwise" with Healix, a Texas=20
resident, and Healix performed some actions regarding the contract =
in=20
Texas, so the long-arm statute is satisfied. Tex. Civ. Prac. & =
Rem.=20
Code Ann. =A7 17.042 (Vernon Supp. 2007). However, this does not =
end our=20
inquiry. The exercise of personal jurisdiction is appropriate here =
only if=20
it would comport with due process requirements. Therefore, we must =
consider whether SFID has established the requisite minimum =
contacts and=20
if the exercise of jurisdiction comports with traditional notions =
of fair=20
play and substantial justice. As the trial court correctly noted=20
throughout the hearing, we must look only at what SFID did in =
Texas, and=20
we do not consider Healix's actions in determining whether the =
personal=20
jurisdiction exists as to SFID. See Michiana Easy Livin' =
Country,=20
168 S.W.3d at 784-85. We will consider only whether specific =
jurisdiction=20
exists, because Healix did not argue in favor of general =
jurisdiction in=20
its briefing in our court. Minimum=20
Contacts Healix=20
first alleged that jurisdiction was proper in Texas because SFID =
entered=20
into a contract with Healix, a Texas corporation. As Healix argued =
to the=20
trial court, this contract required SFID to communicate with =
Healix, which=20
it did through phone calls, email, mail, and facsimile. Next,=20
although the contract states that it would be "performable" in =
Harris=20
County, performance under the contract occurs in Florida. The=20
noncompetition provision and Exhibit A, describing premises, both =
refer to=20
Miami-Dade County or counties contiguous thereto. Both the first =
and=20
second amendments to the contract note that the SFID or its =
predecessor,=20
Juan C. Perez Morales, M.D., P.A., are Florida professional =
associations.=20
The contract was for operational and managerial services to be =
provided to=20
the office infusion center located in Florida. Similarly,=20
the choice-of-Texas-law provision, which states that the contract =
shall be=20
"governed, interpreted, and construed according to the laws of the =
State=20
of Texas," does not confer jurisdiction, in the absence of any =
indication=20
that SFID intended to voluntarily submit to personal jurisdiction =
in=20
Texas. See Preussag Aktiengesellschaft, 16 S.W.3d at 125. =
No such=20
indication is present in the record. Although we=20
conclude that SFID's alleged contacts were insufficient to satisfy =
the=20
minimum-contacts/personal jurisdiction analysis, we also note that =
the=20
alleged contacts are not substantially connected to the operative =
facts of=20
the litigation. At best, Healix alleged that SFID communicated =
with it in=20
Texas. However, Healix's petition alleges that SFID breached the =
contract=20
by failing to pay monies owed as a result of the activities =
conducted=20
at the office infusion center in Florida as well as by =
operating a=20
competing office infusion center in Florida, in =
contravention of=20
the contract. SFID's alleged contacts with Texas, therefore, are =
not=20
substantially connected to the operative facts of the =
litigation.=20
See Moki Mac River Expeditions, 221 S.W.3d at 584-85. We =
conclude=20
that the evidence fails to show that SFID's conduct: (1) was =
purposely=20
directed at or occurred in Texas; (2) has a "substantial =
connection" to=20
the litigation's operative facts; and (3) satisfies federal due =
process=20
requirements. Therefore, we need not consider whether the exercise =
of=20
jurisdiction comports with traditional notions of fair play and=20
substantial justice. We hold that the trial court did not err by=20
sustaining SFID's special appearance. We affirm=20
the order of the trial court.
Sam=20
Nuchia Panel=20
consists of Justices Nuchia, Alcala, and Hanks. 1. Healix was located in Harris County when =
the=20
parties initially signed their contract, but Healix later moved to =
Fort=20
Bend County.=20
2. In connection with the contract, =
Perez-Morales=20
signed an individual guaranty of the contract with Healix. This =
guaranty=20
provided, in part, that "THE STATE COURTS IN THE STATE OF TEXAS =
SHALL HAVE=20
NONEXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR =
DISPUTES=20
WITH RESPECT TO THIS GUARANTY . . . ." 3. The initial contract was with Juan C. =
Perez=20
Morales, M.D., P.A. The name of the physician association's =
practice was=20
changed to South Florida Infectious Diseases and Tropical Medicine =
Center,=20
LLC in the first amendment to the parties' contract.=20
4. The trial court 5. "Point of Error One: The District Court =
erred in=20
ruling that SFID did not have sufficient minimum contacts to =
subject SFID=20
to personal jurisdiction in Harris County, Texas. Point of=20
Error Two: The District Court erred in ruling that exercising =
personal=20
jurisdiction over SFID in Harris County, Texas would not comply =
with=20
traditional notions of fair play and substantial =
justice. Point of=20
Error Three: The District Court erred in ruling that the forum =
selection=20
provision in the HATS Agreement did not waive SFID's objection to =
personal=20
jurisdiction in Harris County."=20
6. Healix also argues that SFID transferred =
money=20
electronically to an account in Houston as part of its performance =
of the=20
contract. 7. Even Healix concedes that it moved from =
Harris=20
County to Sugar Land, in Fort Bend County, Texas, during the time =
the=20
parties' contract was in effect.=20