law-minimum-contacts-analysis-for-in-personam-jurisdiction-purposes | special appearance | special
appearance appeals | personal in-personam jurisdiction over foreign defendant long-arm statute |
MINIMUM CONTACTS WITH FORUM STATE FOR PERSONAL JURISDICTION PURPOSES
"Texas courts may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm
statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process
standards." Id. (citing Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223,
226 (Tex. 1991)); see Texas Civ. Prac. & Rem. Code Ann. §§ 17.041-.045 (Vernon 2008) (Texas long-arm
statute). The long-arm statute allows Texas courts to exercise jurisdiction over a nonresident defendant that
"does business" in the state. Tex. Civ. Prac. & Rem. Code Ann. §17.042 (Vernon 2008). The Texas Supreme
Court has held that "section 17.042's broad language extends Texas courts' personal jurisdiction as far as
the federal constitutional requirements of due process will permit." BMC Software, 83 S.W.3d at 795.
Initially, the plaintiff bears the burden of pleading allegations sufficient to bring a nonresident defendant
within the terms of the Texas long-arm statute. Am. Type Culture Collection, 83 S.W.3d at 807. However, a
nonresident defendant who files a special appearance assumes the burden of negating all bases of personal
jurisdiction that the plaintiff has alleged. Id. We review all evidence in the record to determine if the
nonresident defendant negated all possible grounds. N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex.
App.--Houston [1st Dist.] 2000, no pet.) (citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.
Personal jurisdiction over a nonresident defendant is constitutional when two conditions are met: (1) the
defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction
comports with traditional notions of fair play and substantial justice. Am. Type Culture Collection, 83 S.W.3d
at 806 (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1940)). A nonresident
defendant's minimum contacts must derive from purposeful availment: a nonresident defendant must have
"purposefully availed" itself of the privileges and benefits of conducting business in the foreign jurisdiction to
establish sufficient contacts with the forum to confer personal jurisdiction. Id. (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474-76, 105 S. Ct. 2174, 2183-84 (1985)); Xenos Yuen v. Fisher, 227 S.W.3d 193,
200 (Tex. App.--Houston [1st Dist.] 2007, no pet.). An act or acts "by which the defendant purposefully avails
itself of the privilege of conducting activities" in Texas and "thus invok[es] the benefits and protections" of
Texas law, constitutes sufficient contact with Texas to confer personal jurisdiction. Michiana Easy Livin'
Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78
S. Ct. 1228, 1240 (1958)).
We consider three elements in assessing purposeful availment. See Michiana Easy Livin' Country, 168 S.W.
3d at 785; First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 782 (Tex App.--Houston [1st Dist.] 2008,
no pet.). First, we consider only the defendant's own actions, not those of the plaintiff or any other third
party. Michiana Easy Livin' Country, 168 S.W.3d at 785; First Oil PLC, 264 S.W.3d at 782; see also U-Anchor
Adver., Inc. v. Burt, 553 S.W.2d 760, 763 (Tex. 1977) (quoting Hanson v. Denckla, 357 U.S. at 253, 78 S. Ct.
at 1239-40) ("The unilateral activity of those who claim some relationship with a nonresident defendant
cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the
quality and nature of the defendant's activity, but it is essential in each case that there be some act by which
the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.").
Second, the defendant's activities must be purposeful, not random, isolated, or fortuitous. Michiana Easy
Livin' Country, 168 S.W.3d at 785; First Oil PLC, 264 S.W.3d at 782. "It is the quality rather than the quantity
of contacts that is determinative." First Oil PLC, 264 S.W.3d at 782 (emphasis in original). Third, the
defendant must seek some benefit, advantage, or profit by virtue of its activities in the proposed forum state,
because this element is based on the notion of implied consent. Michiana Easy Livin' Country, 168 S.W.3d at
785; First Oil PLC, 264 S.W.3d at 782.
Our jurisdictional analysis is further divided into general and specific jurisdiction. CSR, Ltd. v. Link, 925 S.W.
2d 591, 595 (Tex. 1996). General jurisdiction will attach when "a defendant's contacts in a forum are
continuous and systematic permitting the forum to exercise personal jurisdiction over the defendant even if
the cause of action did not arise from or relate to activities conducted within the forum state." Id. To support
general jurisdiction, the defendant's forum activities must have been "substantial," which requires stronger
evidence of contacts than for specific personal jurisdictions. Preussag Aktiengesellschaft v. Coleman, 16 S.W.
3d 110, 114 (Tex. App.--Houston [1st Dist.] 2000, pet. dism'd w.o.j.).
Specific jurisdiction arises when the defendant's alleged liability arises from or is related to an activity
conducted within the forum. BMC Software, 83 S.W.3d at 796. "For a nonresident defendant's forum contacts
to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts
and the operative facts of the litigation." Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex.
2007). This requirement assesses "the strength of the necessary connection between the defendant, the
forum, and the litigation." Id. at 584.
Gonzalez v. AAG-Law Vegas, LLC (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Op. on Rehearing by Davie
L. Wilson) (accelerated, interlocutory appeal challenging denial of special appearance, minimum contacts
analysis) (court of appeals renders judgment sustaining the special appearance) (no personal jurisdiction)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Judge Davie L. Wilson
Before Judge Wilson, Justices Alcala and Hanks
01-08-00377-CV David M. Gonzales v. AAG-Las Vegas, L.L.C., Ascent Automotive Group, L.P., KW#1
Acquisition Company, L.L.C.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
Gonzalez's contacts with Texas are not such that the operative facts of the underlying litigation justify specific
personal jurisdiction in Texas. For these reasons, we hold that the trial court erred in denying Gonzalez's
special appearance. We sustain appellant's issue.
Because Gonzalez did not "purposefully avail [himself] of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws," Moki Mac, 221 S.W.3d at 575 (quoting Int'l Shoe
Co., 326 U.S. at 319, 66 S. Ct. at 160), Gonzalez lacks sufficient minimum contacts to support an assertion of
specific jurisdiction in Texas. Accordingly, we reverse the order of the trial court denying Gonzalez's special
appearance and render judgment sustaining the special appearance.
Information Services Group, Inc. v. Rawlinson (Tex.App. - Houston [14th Dist.] Nov. 5, 2009)(Brown)
(accelerated, interlocutory appeal from the trial court’s order granting appellee’s special appearance)
(defendant found to lack sufficient minimum contacts to support the assertion of specific jurisdiction)
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-09-00242-CV Information Services Group, Inc., Technology Partners International, Inc. and TPI
Eurosourcing, L.L.C. v. Tony Rawlinson
Appeal from 61st District Court of Harris County
Trial Court Judge: Al Bennett
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