The Law of Special Appearance
A plaintiff bears the initial burden of pleading allegations sufficient to bring a non-resident defendant within
the terms of the Texas long-arm statute. Am. Type Culture Collection, 83 S.W.3d at 807. "The nonresident
defendant then assumes the burden of negating all bases of jurisdiction in those allegations." Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The firm's pleadings asserted jurisdiction
over Cobb based on Cobb's traveling to Texas to sign the Agreement, the Agreement's forum selection
clause, the firm's legal work done in Texas, and Cobb's letter sent to Texas to terminate the firm. Cobb's
response negates each of these allegations.
A court may assert personal jurisdiction over a non-resident defendant if the requirements of the Due
Process Clause of the United States Constitution (1) and the Texas long-arm statute (2) are both satisfied.
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 1872 (1984); CSR
Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). "Because the Texas long-arm statute reaches 'as far as the
federal constitutional requirements of due process will allow,' the statute is satisfied if the exercise of
personal jurisdiction comports with federal due process." Preussag Aktiengesellschaft, 16 S.W.3d at 113
(quoting CSR Ltd., 925 S.W.2d at 594). We thus examine only whether a Texas court's exercise of
jurisdiction over Cobb would comport with the requirements of federal due process. See CSR, Ltd., 925
S.W.2d at 594.
"Federal due process requirements are two-fold." Id. "First, the nonresident defendant must have
purposefully established such minimum contacts with the forum state that it could reasonably anticipate
being sued there." Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183
(1985)). "Second, if the nonresident defendant has purposefully established minimum contacts with the
forum, the exercise of jurisdiction must comport with fair play and substantial justice." Id.
In deciding whether a defendant has sufficient minimum contacts, "[i]f the nonresident defendant has
purposefully availed itself of the privileges and benefits of conducting business in a state, it has sufficient
contacts to confer personal jurisdiction." Id. (citing Burger King, 471 U.S. at 475, 105 S. Ct. at 2183).
"Random, fortuitous, or attenuated contacts do not suffice." Id. (citing Burger King, 471 U.S. at 475, 105 S.
Ct. at 2183).
To assess whether a non-resident defendant has purposefully availed himself of the privileges and
benefits of conducting business in Texas, we examine three elements. See Michiana Easy Livin' Country,
Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005). First, only the defendant's own actions may constitute
purposeful availment. Id. (citing Burger King, 471 U.S. at 475, 105 S. Ct. at 2183). Second, the defendant's
acts must be purposeful, and a showing of random, isolated, or fortuitous contacts is insufficient. Id. (citing
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473, 1478 (1984)). It is the quality, rather
than the quantity of the contacts that is determinative. Silbaugh, 126 S.W.3d at 95. Third, a defendant
must seek some benefit, advantage, or profit through his purposeful availment. Holten, 168 S.W.3d at 785
(citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980)).
Minimum-contacts analysis is further divided into general jurisdiction and specific personal jurisdiction.
Preussag Aktiengesellschaft, 16 S.W.3d at 114. General jurisdiction does not require that the cause of
action relate directly to the defendant's contacts with the forum. Preussag Aktiengesellschaft, 16 S.W.3d at
114 (citing CSR, Ltd., 925 S.W.2d at 595). However, to negate general jurisdiction a defendant must show
that its contacts in Texas were not "continuous and systematic." Id. To support general jurisdiction, the
defendant's forum activities must have been "substantial," which requires stronger evidence of contacts
than for specific jurisdiction. Id.
A court may exercise specific personal jurisdiction over a non-resident defendant if (1) the non-resident
purposely directed its activities toward the forum state or purposely availed itself of the privileges of
conducting activities there and (2) the controversy arises out of or is related to the non-resident's contacts
with the forum state. BMC Software, 83 S.W.3d at 796. An individual's contract with an out-of-state party
alone does not automatically establish minimum contacts in the other party's home state. Burger King, 471
U.S. at 478, 105 S. Ct. at 2185. Rather, "prior negotiations and contemplated future consequences, along
with the terms of the contract and the parties' actual course of dealing . . . must be evaluated in
determining whether the defendant purposefully established minimum contacts within the forum." Id. at 479,
105 S. Ct. at 2185
Cobbs v. Stern, Miller & Higdon (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Alcala)
(denial of special appearance reversed in interlocutory appeal, attorney-client disputes and litigation,
void or voidable contract, solicitation of clients contingency fee agreement as against public policy, affidavit
testimony by interested witness, interlocutory appeal-special appearance)
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Higley
01-09-00112-CV John L. Cobbs v. Stern, Miller & Higdon
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Michael Engelhart