law-special-appearance
Greenfield Energy Inc. v. Duprey (Tex.App.- Houston [14th Dist.] Apr. 10, 2008)(Guzman)
(special appearance, foreign defendant, agency and alter ego theories rejected, minimum
contacts, jurisdictional inquiry)
AFFIRMED: Opinion by Justice Guzman
14-07-00527-CV Greenfield Energy Inc., Greenfield Energy, Inc., and Greenfield Oil
Trinidad, LTD. v. Lawrence Duprey and CL Financial, LTD.
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher
Carpenter v. Exelon Corp. (Tex.App.- Houston [14th Dist.] Oct. 26, 2007)(Edelman)(special
appearance)
AFFIRMED: Opinion by Justice Edelman
Before Justices Edelman, Frost and Seymore)
14-07-00149-CV Timothy J. Carpenter, Mervin G. Schaefer, James P. Maloney, Oldcosy
Corporation, Henry Jackson, David Reindi, Henry C. Hess, David Falldorf, and Jane P. Koth
v. Exelon Corporation and Exelon Enterprises Company, L.L.C
Appeal from 133rd District Court of Harris County (Hon. Putnam Reiter)
Markette v. X-ray X-Press (Tex.App. - Houston [14th Dist.] Oct. 18, 2007)(Yates)(Substitute
opinion on rehearing)(special appearance, no personal jurisdiction)
REVERSED AND RENDERED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Edelman and Seymore
14-07-00146-CV Robert P. Markette, Jr. and Gilliland & Caudill, L.L.P. v. X-Ray X-Press
Corporation--Appeal from 165th District Court of Harris County (Hon. Elizabeth Ray)
Uche, M.D. v. Allison (Tex.App.- Houston [1st Dist.] Oct. 11, 2007)(Keyes)(HCLC,
special appearance)August 31, 2007 Opinion withdrawn and superseded by Pelican State
Physical Therapy, LP v. Bratton (Tex.App.- Houston [1st Dist.] Sep. 27, 2007)(Taft)
Pelican State Physical Therapy v. Bratton (Tex.App.- [1st Dist.] Aug. 30, 2007)(withdrawn
and superseded opinion by Taft)(personal jurisdiction, special appearance, appellate
sanctions denied, findings of facts)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Alcala and Hanks
01-06-00199-CV Pelican State Physical Therapy, L.P. v. Marc Bratton
Appeal from 133rd District Court of Harris County (Hon. Lamar McCorkle)
Weldon-Francke v. Fisher (Tex.App.- Houston [14th Dist.] Sep. 11, 2007)(Frost)
(personal jurisdiction, special appearance, legal malpractice suit)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Frost, Seymore and Guzman
14-06-00834-CV Suzanne M. Weldon-Francke and Normandin Cheney & O'Neil, PLLC v.
Seymore Fisher and Carmen Fisher--Appeal from 122nd District Court of Galveston County
(Hon. John A. Ellisor Jr.)
Canada v. Telen's Marine & Fuel, Inc. (Tex.App.- Houston [14th Dist.] Sep. 27, 2007)
(Anderson)(special appearance, PI-auto)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Fowler and Frost
14-06-01143-CV Milyn Canada, Individually and on behalf of her minor child, S.C v. Talen's
Marine & Fuel, Inc. and Barry Miller--Appeal from 61st District Court of Harris County (Hon.
John J. Donovan)
Control Solutions, Inc. v. Gharda USA, Inc. (Tex.App.- Houston [1st Dist.] Sep. 13, 2007)
(special appearance, grant of special appearance reversed)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00802-CV Control Solutions, Inc. and United Phosphorus, Inc. v. Gharda USA, Inc.,
Gharda Chemicals Ltd., Benko Products, Inc., and Choctaw Sales, Inc.
Appeal from 129th District Court of Harris County (Hon. Grant Dorfman)
Boston Medical Group v. Ellis (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Frost)(special
appearance, medical malpractice, failed penis operation)
Markette v. X-Ray (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Yates)(special appearance)
(superseded opinion)
Cerbone v. Farb (Tex.App.- Houston [14th Dist.] May 8, 2007)(Seymore)(special appearance)
REVERSED AND RENDERED: Opinion by Justice Seymore
14-06-00666-CV Joseph A. Cerbone v. Carolyn Farb
Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)
Barker v. Lescroart (Tex.App.- Houston [14th Dist.] Feb. 13, 2007)(Anderson)(ILA, special
appearance)
REVERSED AND REMANDED: Opinion by Justice Anderson
Before Justices Anderson, Hudson and Guzman
14-06-00125-CV Paulette Barker, Individually and as Executor for the Estate of Robert
Barker v. Emmett J. Lescroart-Appeal from Probate Court No 1 of Harris County (No judge
shown on docket)
O P I N I O N
In this medical malpractice suit, appellant, Chris Uche, M.D., brings an accelerated
interlocutory appeal challenging the trial court’s order denying his motion for special
appearance. In one issue on appeal, Dr. Uche argues that the trial court erred in denying
his special appearance in favor of appellee, Melody Allison, individually and as
representative of the estate of Dorothy Mueller (collectively “Allison”).
We reverse and render.
BACKGROUND
The facts of this dispute can be found in a prior opinion from this Court.1 Dorothy Mueller
boarded a Carnival Cruise Ship that departed from Galveston on February 21, 2002.
Because Mrs. Mueller has a feeding tube, her son-in-law and her daughter, Melody, went
along with her.2 During the voyage, Mrs. Mueller’s feeding tube became dislodged.
According to Allison’s third amended petition, Mrs. Mueller attempted to get care from the
ship’s infirmary, where one doctor, Dr. Uche, and three nurses were stationed. It is
undisputed that Mrs. Mueller did not get her feeding tube reinserted on the cruise ship. A
couple of weeks after the cruise, Mrs. Mueller had a stroke that is alleged to have been the
result of the negligent care given aboard the ship. Allison filed suit against various parties,
including Dr. Uche, the head nurse, and Carnival Cruise Lines. In our prior opinion, we held
that while Dr. Uche worked aboard the ship, the Celebration, he served as an independent
contractor and that Mrs. Mueller’s injury occurred in international waters.3
Dr. Uche filed a special appearance arguing that the trial court lacked both general and
specific jurisdiction over him. The trial court denied Dr. Uche’s motion for special
appearance on May 15, 2006.
On December 27, 2006, while this appeal was pending, Dr. Uche moved for sanctions,
alleging that Allison made “gross misstatements of fact and concocted arguments [that] lack
even a scintilla of merit or credibility independently, or collectively, in addition to Appellees’
brief containing such an inordinate amount of falsehoods, inventions and deceptions . . . .”
On January 30, 2007, we ordered that the motion for sanctions be carried with the case. Dr.
Uche moved to stay the trial proceedings, and, on December 8, 2006, we ordered that the
commencement of trial be stayed pending resolution of this appeal. See Tex. Civ. Prac. &
Rem. Code Ann. 51.014(b) (Vernon Supp. 2006).
PERSONAL JURISDICTION
In his sole issue on appeal, Dr. Uche argues that the trial court erred when it denied his
special appearance.
Standard of Review
Whether a court has personal jurisdiction over a defendant is a question of law subject to de
novo review. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002);
Glattly v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex. App.—Houston [1st Dist.] 2005, no
pet.). The trial court, however, must frequently resolve questions of fact before deciding the
jurisdictional question. BMC Software, 83 S.W.3d at 794. If the trial court enters an order
denying a special appearance and issues findings of fact and conclusions of law, we may
review the findings of fact on legal and factual sufficiency grounds and review the
conclusions of law de novo as a legal question. Silbaugh v. Ramirez, 126 S.W.3d 88, 94
(Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing BMC Software, 83 S.W.3d at 794).
If the trial court does not issue findings of fact and conclusions of law, as here, “all facts
necessary to support the judgment and supported by the evidence are implied.” BMC
Software, 83 S.W.3d at 795. In other words, if the trial court does not issue findings of fact, a
reviewing court should presume that the trial court resolved all factual disputes in favor of its
judgment. Tri-State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P., 184 S.W.3d 242, 246 (Tex.
App.—Houston [1st Dist.] 2005, no pet.) (citing American Type Culture Collection, Inc. v.
Coleman, 83 S.W.3d 801, 806 (Tex. 2002)). These findings are not conclusive when the
appellate record includes both the reporter’s and clerk’s records, and they may be
challenged for legal and factual sufficiency on appeal. Id. To the extent that the underlying
facts are undisputed, however, we conduct a de novo review. Glattly, 177 S.W.3d at 445.
Two requirements must be met before a Texas court can exercise personal jurisdiction over
a nonresident defendant. First, the Texas long-arm statute must authorize the exercise of
jurisdiction, and second, the exercise of jurisdiction must be consistent with the guarantees
of due process. Coleman, 83 S.W.3d at 806; Tri-State, 184 S.W.3d at 248.
The long-arm statute permits Texas courts to exercise personal jurisdiction over a
nonresident4 defendant that “does business” in Texas. Tex. Civ. Prac. & Rem. Code Ann. §
17.042 (Vernon 1997); BMC Software, 83 S.W.3d at 795. The statute lists three activities
that constitute “doing business”: (1) contracting with a Texas resident when either party is to
perform the contract in whole or in part in Texas; (2) committing a tort in whole or in part in
Texas; and (3) recruiting Texas residents for employment inside or outside of Texas. Tex.
Civ. Prac. & Rem. Code Ann. § 17.042. This list, however, is not exclusive,5 and the statute’
s “doing business” requirement is limited only by the requirements of federal due process.
Koll Real Estate Group, Inc. v. Purseley, 127 S.W.3d 142, 146 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990)).
Because the language of the long-arm statute is broad, its requirements are considered
satisfied if the exercise of personal jurisdiction comports with federal due process limitations.
CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). In practice, the two conditions are
combined into one requirement of due process. Wright v. Sage Eng’g, Inc., 137 S.W.3d 238,
247 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Thus, the true determinative inquiry
is one of federal constitutional due process. See id.; see also Guardian Royal Exch.
Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).
With respect to personal jurisdiction, federal due process requires two things. First, the
nonresident defendant must have purposefully established such minimum contacts with the
forum state that the defendant could reasonably anticipate being sued there. Glattly, 177 S.
W.3d at 447 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174,
2183–84 (1985)). Second, if the nonresident defendant has purposefully established
minimum contacts with the forum, the exercise of personal jurisdiction must also comport with
traditional notions of fair play and substantial justice. Id. (citing Burger King, 471 U.S. at 475–
76, 105 S. Ct. at 2183–84). As to fairness, the defendant bears the burden of presenting a
“compelling case” that exercising jurisdiction over him would not be fair and just. See id. at
450. Only in rare cases, however, will a Texas court’s exercise of personal jurisdiction not
comport with fair play and substantial justice when the nonresident defendant has
purposefully established minimum contacts with the forum state. Guardian Royal Exch.
Assurance, 815 S.W.2d at 231.
A nonresident establishes minimum contacts with Texas by purposefully availing itself of the
privileges and benefits inherent in conducting business in the state. Michiana Easy Livin’
Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005); Koll, 127 S.W.3d at 146. The
touchstone of jurisdictional due process is “purposeful availment,” i.e., “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.” Michiana, 168 S.W.3d at 784 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.
Ct. 1228, 1240 (1958)) (emphasis in Michiana). Three aspects of the requirement are
important in this case, as in Michiana: (1) only the defendant’s contacts with the forum count,
not the unilateral activity of another party or person; (2) the acts relied on to establish
jurisdiction must be “purposeful” rather than fortuitous; and (3) the defendant must seek
some benefit, advantage, or profit by “availing” itself, or himself, of the jurisdiction. Id. at
785. It is the quality and nature of the defendant’s contacts, rather than their number, that is
important to the minimum-contacts analysis. Trigeant Holdings, Ltd. v. Jones, 183 S.W.3d
717, 725 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Random, fortuitous, or
attenuated acts, or the unilateral acts of a third party, are not sufficient to confer personal
jurisdiction. Id. Although not determinative, foreseeability is an important consideration in
deciding whether a nonresident defendant has purposefully established minimum contacts.
Glattly, 177 S.W.3d at 446–47.
The minimum contacts element of due process is further divided into specific and general
personal jurisdiction. Id. at 447. A court may exercise specific jurisdiction over a nonresident
defendant if his alleged liability arises from, or is related to, an activity conducted within the
forum. Id. (citing CSR, 925 S.W.2d at 595). The contacts must be purposefully directed at
the forum and have a “substantial connection” that results in the alleged injuries. Shell
Compañia Argentina de Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 837 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied). We focus our analysis on the relationship
among the defendant, the forum, and the litigation. Id.
A court may exercise general jurisdiction over a nonresident defendant if the defendant’s
contacts with the forum state are continuous and systematic, even if the cause of action did
not arise from or relate to the defendant’s contacts with the forum. Glattly, 177 S.W.3d at
447. In confining one’s activities to another forum, “a nonresident may purposefully avoid a
particular jurisdiction by structuring its transactions so as neither to profit from the forum’s
laws nor be subject to its jurisdiction.” Michiana, 168 S.W.3d at 785. For the court to have
specific jurisdiction, the nonresident defendant must have established minimum contacts by
purposefully availing itself of the privilege of conducting activities in Texas and 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, 576, 585 (Tex. 2007).
The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident
defendant within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at
793. A nonresident defendant challenging the court’s exercise of personal jurisdiction
through a special appearance carries the burden of negating all grounds for personal
jurisdiction alleged by the plaintiff. Id.; Glattly, 177 S.W.3d at 446.
General Jurisdiction
On appeal, Allison contends that Dr. Uche had continuous and systematic contacts with
Texas because the ship on which he practiced took on 1,300 Texans every week for a four-
month period. Under the section of the petition styled “Long Arm Statute,” Allison alleges
that Dr. Uche is
amenable to jurisdiction in Texas because [he] has purposefully established minimum
contacts with Texas. Specifically, [he] sought employment with Carnival Corporation so as to
be stationed in Galveston, Texas for months at a time. For each week that Defendants
worked out of the Galveston port, over 1,000 Texas residents and others coming to Texas
boarded the ship. The individual Defendants purposefully put themselves in the position of
providing medical care to any Texas resident who needed care during the cruise. When
medical care personnel deliberately station themselves so as to be giving care to Texas
residents for months at a time, Texas has a substantial interest in ensuring the quality of that
care. Additionally, since Defendants contract to work for Carnival for half a year at a time out
of Galveston, Texas or other United States ports, it would not be unduly burdensome or
otherwise unfair to them to defend this suit in Galveston, Texas.
Allison argues that the trial court has general jurisdiction over Dr. Uche and that Dr. Uche
had continuous and systematic contacts with Texas because of the number of passengers
who came aboard the Celebration and the number of passengers who visited the infirmary
during the time that the Celebration was stationed in Galveston. Dr. Uche argues that he did
not have continuous and systematic contacts with the state to subject him to general
jurisdiction.
The head nurse on the Celebration, Constance Jackson, testified by deposition that she
worked on the Celebration for four months. Jackson estimated that the Celebration’s
infirmary would see 20 passengers and 50 crew persons a week. She testified that there
were a lot of Texans on board, but that people came from other states as well.6 She said
that the Celebration would leave port once a week on average and that approximately 1,300
passengers would board the Celebration every week. Out of the 2,000 person capacity of
the Celebration, there were three passengers to every crew member. The ship would stay in
port for eight hours to unload passengers and pick up new passengers, and it would then set
out to sea.
In his deposition, Dr. Uche testified that he worked on the Celebration for a four-month
period. He testified that Carnival assigns the doctors to the ships and that he was on the
ship 99% of the time. He would fly into one of the Houston airports and then take a shuttle
from the airport to the Celebration. He flew at least twice to the two Houston airports. He
stated that if a nurse saw something she cannot handle, she was supposed to contact the
doctor. Dr. Uche stated that while aboard the ship, he could not refuse medical help to a
person, but that in certain circumstances he could refuse to see a patient. He clarified his
answer to say that if someone came to see him, he would have to see them. If a passenger
came to see him in the infirmary, he would never refuse to see them. The infirmary had a
morning session and an afternoon session, and he was on call 24 hours a day. Dr. Uche
stated that if a passenger boarded the ship with a headache, the passenger could come to
the infirmary and get some aspirin. He clarified that most of the time while they were in port,
the infirmary was closed. If someone became sick while at sea, the clinic would arrange for
the patient to be transported to a facility on land once the ship docked.
Dr. Uche is not licensed to practice medicine in Texas, and he has never practiced medicine
in Texas. He neither owns any property in Texas nor pays any taxes on any property in
Texas. Dr. Uche testified that he conducts no business of any kind in Texas. He only
handled patients while on board the Celebration, and he only saw patients after the ship had
gone into international waters.
General jurisdiction requires a showing that the defendant conducted “substantial activities”
within the forum, which requires a more demanding minimum contacts analysis than specific
jurisdiction. Coleman, 83 S.W.3d at 807; Guardian Royal Exch. Assurance, 815 S.W.2d at
228. Thus, general jurisdiction presents a “more onerous” burden of proof. Marchand, 83 S.
W.3d at 797. In essence, under general jurisdiction, the contacts “should be such as to
justify categorizing the defendant as a resident of this State.” Schexnayder, 187 S.W.3d at
243. “[O]ne suggested method of determining whether general jurisdiction over a defendant
truly lies in Texas is by determining whether a citizen of another state, on a claim for
wrongdoing in another state, could nevertheless properly sue the defendant in Texas
courts.” Schexnayder, 187 S.W.3d at 243 (citing Charles Rhodes, The Predictability
Principle in Personal Jurisdiction Doctrine: A Case Study on the Effects of a “Generally” too
Broad, but “Specifically” too Narrow Approach to Minimum Contacts, 57 Baylor L. Rev. 135,
149–55 (2005)).
Dr. Uche contends that he does not have minimum contacts with Texas because any contact
he had with Texas was not chosen by Dr. Uche, but rather by Carnival, and that the unilateral
acts of a third party do not meet the requirements of a defendant who purposefully avails
himself of the benefits and protections of Texas law. For instance, Dr. Uche argues that
“Carnival’s voluntary choice to have Galveston be a port of departure for its cruise line, is a
unilateral act of its own, for which Uche is not responsible.” Dr. Uche also argues that
the fact that Carnival happens to have customers (passengers), albeit Texas residents or
residents of other states, is likewise a result of Carnival’s (or arguably the
customer/passenger’s) unilateral acts . . . . Any monies paid to Uche by Carnival, on account
of the Carnival/Uche contract, executed in Georgia, for work to be performed in international
waters does not transform Uche into an entity that is purposefully availing itself of the
privilege of doing business in Texas.
Allison argues that Dr. Uche had ample contacts with Texas to justify jurisdiction. Namely,
the trial court has general and specific jurisdiction over Dr. Uche based on the fact that “Mrs.
Mueller was one of approximately 1,300 Texans that boarded the Carnival Celebration every
week before it left its home port of Galveston.” Allison further argues that “the 1,300 Texans
were the sole source of patients for the months he was based in Galveston” and that Dr.
Uche “made himself available to over 20,000 Texans for medical care as he set up shop on
the Carnival cruise ship across a 30’ gangplank from Galveston.” Allison argues that “[t]he
incident giving rise to this suit was a result of Uche’s repeated weekly contacts with Texas
made in pursuit of his medical practice.”
Allison has pleaded that
[He] sought employment with Carnival Corporation so as to be stationed in Galveston, Texas
for months at a time . . . The individual defendants purposefully put themselves in the
position of providing medical care to any Texas resident who needed care during the cruise.
When medical care personnel deliberately station themselves so as to be giving care to
Texas residents for months at a time, Texas has a substantial interest in ensuring the quality
of that care.
We limit our analysis to Dr. Uche’s contacts with the state, not Carnival’s contacts with the
state.7 See Moki Mac, 221 S.W.3d at 575 (stating that, for purposeful availment, “only the
defendant’s contacts with the forum are relevant, not the unilateral activity of another party
or a third person”). Here, while it may have been foreseeable that Dr. Uche would commit
some act or fail to act and that his actions could lead to litigation in Texas, the record in this
case does not reflect that Dr. Uche himself, purposefully directed any act toward Texas. See
CSR Ltd., 925 S.W.2d at 596 (“Absent . . . a purposeful act, foreseeability alone cannot
create minimum contacts between [the defendant] and Texas.”).
Allison’s pleading that Dr. Uche purposefully “sought employment with Carnival Corporation
so as to be stationed in Galveston, Texas for months at a time” is refuted by Dr. Uche’s
statement that Carnival assigns him to a specific ship. He stated that “Carnival assigns you,
but sometimes you can request.” He clarified, “[W]ell, that’s where I was assigned. I mean,
see, working for a company you can’t really say, well, I want to go here. That’s where I was
assigned to go.”
The record does not show that Dr. Uche asked Carnival that he be sent to Texas, that he
intended to serve the Texas market, that he communicated with patients living in Texas, or
that he had any substantial contact with Texas residents before the ship reached
international waters. See Moki Mac, 221 S.W.3d at 577 (“Examples of additional conduct
that may indicate whether a defendant purposefully availed itself of a particular forum include
advertising and establishing channels of regular communication to customers in the forum
state.”); see also CSR, 925 S.W.2d at 595 (stating that there must be some indication that
defendant intended to serve Texas market). Nor does the record show that the alleged
tortious medical treatment or failure to give medical treatment occurred in Texas. See
Anderson v. Bechtle, 2001 WL 930205, at *2 (Tex. App.—Houston [1st Dist.] Aug. 16, 2001,
no pet) (not designated for publication) (“Standing alone, it is difficult to see how a failure to
act could meet the purposeful availment requirement needed to establish personal
jurisdiction.”). Thus, we conclude that the record does not support Allison’s claims that Dr.
Uche purposefully put himself in a position to treat Texas residents.8
Moreover, although Dr. Uche traveled to the state, occasional travel to Texas is insufficient
by itself to establish continuous and systematic contact. Preussag Aktiengesellschaft v.
Coleman, 16 S.W.3d 110, 124 (Tex. App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.);
Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 796 (Tex. App.—Houston [1st Dist.] 2000, no
pet.). While it is true that the Celebration had its port in Galveston, Texas, and that Dr. Uche
stayed on the ship during its time in port, port calls are not construed as substantial contacts
of a quality sufficient to establish a court’s general jurisdiction over a nonresident defendant.
See Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 786–87 (5th Cir. 1990) (finding no
jurisdiction and discounting quality of contacts regarding 20 port calls of vessels to Louisiana
because company that managed vessels did not choose where vessels would make port);
Nicolaisen v. Toei Shipping Co., Ltd., 722 F. Supp. 1162, 1165 (D. N.J.1989) (finding that 17
port calls to New Jersey over a three-to-four year period and shipowner’s dealing with time
charterer in New Jersey did not establish general jurisdiction); Am. Overseas Marine Corp. v.
Patterson, 632 So.2d 1124, 1126–30 (Fla. App. 1994) (finding no jurisdiction and
discounting quality of contacts relating to port calls in Florida because they were not made
on the orders of defendants but instead were made at the direction of the United States
military under contracts with the United States). Thus, the fact that the Celebration operated
out of Galveston does not support the exercise of general jurisdiction over Dr. Uche.
Moreover, Carnival’s decision to make Galveston a port of call diminishes the quality of Dr.
Uche’s contact—living on a ship that is docked in the port of Galveston—with the state. See
Farwah v. Prosperous Maritime Corp., 220 S.W.3d 585, 594 (Tex. App.—Beaumont 2007,
no pet.) (concluding that because decision to make Texas a port of call was made by a third
party, quality of defendant’s contact diminished); see also Am. Type Culture Collection, 83 S.
W.3d at 809 (discounting quality of contact regarding defendant’s attendance at five
conferences in Texas when defendant did not select conference locations); Reyes v. Marine
Drilling Cos., 944 S.W.2d 401, 402–04 (Tex. App.—Houston [14th Dist.] 1997, no writ)
(discounting quality of contact when defendant sent representatives to Texas at least 204
times to perform quality-assurance inspections that were necessitated under contractual
obligations between defendant and United States government). Thus, we also conclude that
Dr. Uche’s limited presence in the state is not enough to amount to substantial activities in
the state for a court to exercise general jurisdiction.
Because Dr. Uche’s contacts were not purposefully directed at Texas and because the
contacts he did have with the state were not continuous and systematic, we conclude that the
trial court lacks general jurisdiction over Dr. Uche.9
Specific Jurisdiction
We recognize that on one occasion the United States Supreme Court has found specific
jurisdiction based on alleged wrongdoing intentionally directed at a resident of the forum.
See Calder v. Jones, 465 U.S. 783, 788–789, 104 S. Ct. 1482, 1486–87 (1984). However,
the Texas Supreme Court has held that the foreseeability of causing injury in another state is
not a “sufficient benchmark” for the exercise of personal jurisdiction over a defendant.
Michiana, 168 S.W.2d at 789. Rather, “it is ‘the defendant’s conduct and connection with the
forum’ that are critical.’” Id.
The operative fact of Allison’s claim with respect to specific jurisdiction is Dr. Uche’s alleged
failure to give care aboard the Celebration. In her third amended petition, Allison states,
There was apparently no qualified physician on board and the nurses on board did not have
the medical training necessary to reinsert and retape the feeding tube, and refused to do
so. Instead, Carnival informed the Allisons and Mrs. Mueller [that] they had to fend for
themselves. As a result of the actions and inactions of defendants, Mrs. Mueller suffered a
stroke on March 16, 2002, which left her significantly impaired far beyond her pre-March
condition so that her quality of life has been significantly diminished.
Allison alleges that Dr. Uche “provided medical care, advice and treatment to Dorothy
Mueller by assessing her condition, determining her need for care, and then abandoning
her.” At the hearing on Dr. Uche’s special appearance, however, counsel for Allison stated
that a nurse came to Mrs. Mueller’s cabin and escorted her to the infirmary but that, because
Mrs. Mueller was in a wheelchair, it was difficult to get around in the infirmary. Medical
personnel then came to Mrs. Mueller’s cabin, but did not inform anyone that a medical doctor
was on board. In short, although Allison alleges that Dr. Uche committed a tort in whole or in
part in this State and thus satisfies the jurisdictional requirements of the Texas Long-Arm
Statute and federal due process, there is no evidence that he was even made aware of her
condition.
Allison has not produced any evidence of any connection between Dr. Uche’s conduct and
contacts with Texas and Mrs. Mueller’s injuries, which are alleged to have happened while
she was on the Celebration in international waters. See Shell Compania Argentina de
Petroleo, 84 S.W.3d at 837 (holding that to satisfy minimum contacts element of due
process, contacts must be purposefully directed at forum and have substantial connection
that results in alleged injuries). Allison presented no evidence at the special appearance
hearing that Dr. Uche was made aware of Dorothy’s need for assistance, assessed her
medical condition, determined her need for care, or abandoned her, as Allison alleges.
Contrary to Allison’s allegations, Dr. Uche’s affidavit states that it was never made known to
him, nor was he in any way aware, that Dorothy needed medical assistance. He also states
that he never had a physician-patient relationship with Dorothy. Allison did not rebut this
evidence. Therefore, we cannot say that Dr. Uche’s alleged failure to act on the high seas to
treat a passenger from Texas, Dorothy, bears a substantial connection with Dr. Uche’s
contacts with Texas sufficient to subject him to the specific jurisdiction of the courts of this
state. Stated another way, Dr. Uche’s travel within the state and his temporary residence on
board the Celebration for the purpose of rendering medical services are not sufficiently
related to the acts of medical negligence alleged to have taken place in international waters
to satisfy the requirements of federal due process in subjecting him to personal jurisdiction in
this state.
We hold that Dr. Uche has negated all grounds for personal jurisdiction asserted by Allison.
We conclude that the trial court lacks general jurisdiction over Dr. Uche because he did not
have continuous and systematic contacts with Texas. We also conclude that specific
jurisdiction is lacking because his alleged liability to Allison does not arise from or relate to
his contacts with Texas.
Conclusion
We reverse the order of the trial court and render judgment dismissing Dr. Uche from the
litigation. We deny Dr. Uche’s motion for sanctions. We withdraw our December 8, 2006
order that stayed the commencement of trial.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
--------------------------------------------------------------------------------
1In our prior opinion, we conditionally granted mandamus relief because the trial court
abused its discretion in imposing death penalty sanctions against Carnival Cruise Lines. See
In re Carnival, 193 S.W.3d 229, 237 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).
2Mrs. Mueller suffered a stroke in early 2000 that required her to wear the feeding tube.
See In re Carnival, 193 S.W.3d at 232.
3See In re Carnival, 193 S.W.3d at 234.
4A “nonresident” includes “an individual who is not a resident of [Texas]” and “a foreign
corporation, joint-stock company, association, or partnership.” Tex. Civ. Prac. & Rem. Code
Ann. § 17.041 (Vernon 1997).
5BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
6Other than Jackson’s testimony, Allison presented no evidence of the number of Texans
onboard the Celebration, but presumably it was substantial.
7In her response to Dr. Uche’s motion for sanctions, Allison requests that this Court take
judicial notice that Carnival had stationed the Celebration in the port of Galveston since
2000. Although this may be true, we are not concerned with the contacts that Carnival had
with Galveston, Texas, but rather the contacts that Dr. Uche had. See Moki Mac River
Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007).
8In her brief, Allison claims that it was Dr. Uche himself who stationed himself at that port.
Allison cites no authority or citation to the record that Dr. Uche made the decision to work on
a ship based in Galveston, and the record reveals the opposite—that Carnival made the
decision to send Dr. Uche to Galveston.
9In Florida, the courts of appeals have held that its long-arm statute does not allow the court
to exercise personal jurisdiction over doctors who serve aboard cruise ships unless the injury
occurred inside Florida’s territorial waters. See Elmlund v. Mottershead, 750 So.2d 736, 736
(Fla. Ct. App. 2000); Benson v. Norwegian Cruise Line Limited, 859 So.2d 1213, 1215 (Fla.
Ct. App. 2003) (reversing order granting special appearance because injury occurred within
Florida’s jurisdictional waters).
But, in Wurtenberger v. Cunard Line Ltd., a cruise ship’s physician, who was not a resident
of New York, and who was sued for medical malpractice for incidents that did not occur in
New York, was nevertheless found to be subject to personal jurisdiction under New York’s
long-arm statute. 370 F. Supp. 342, 344–45 (S.D. N.Y. 1974). The court found preliminarily
that the physician had “transacted business” within the state because, although he was not
licensed to practice medicine in New York and claimed to have been in New York on only four
occasions, he was a member of the ship’s crew when it departed New York and when it
returned to New York, and presumably practiced medicine while the ship was in New York
waters. Id. at 344. With respect to the “nexus” requirement of section 302(a)(1), the court
determined that the physician was present on the ship when passengers boarded in New
York, and effectively held himself out as a qualified doctor who would treat medical problems
on the cruise. Id. at 345. Thus, some of the ship’s passengers, many of whom were
foreseeably New York residents, decided to forego other medical services while at sea in
reliance on the physician’s competence. Id. The court reasoned that “[t]he alleged
subsequent malpractice in the course of the cruise, therefore, while it did not occur in New
York, may be said to have arisen out of [the doctor’s] ‘transaction of business’ in New York.”
Id.
Denial of special appearance reversed
Tabor v. Medical Legal Evaluations, Inc. (Tex.App.- Houston [1st Dist.] Aug. 30, 2007)(Hanks)
Special Appearance
In their third issue, TCG and Gibbs argue that the trial court erred in denying their special
appearance because their contacts with the state of Texas do not give rise to specific
jurisdiction. We agree.
A. Standard of Review
The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident
defendant within the personal jurisdiction of a Texas court. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 793 (Tex. 2002); Glattly v. CMS Viron Corp., 177 S.W.3d 438,
445-46 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Upon filing a special appearance,
however, the nonresident defendant assumes the burden of negating all the bases of
personal jurisdiction alleged by the plaintiff. Marchand, 83 S.W.3d at 793. The existence of
personal jurisdiction is a question of law, reviewed de novo, but that determination must
sometimes be preceded by the resolution of underlying factual disputes. Preussag
Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.--Houston [1st Dist.] 2000, pet.
dism'd w.o.j.). When, as here, the trial court issues findings of fact and conclusions of law, we
may review the findings of fact on legal and factual sufficiency grounds and review the
conclusions of law de novo as a legal question. Silbaugh v. Ramirez, 126 S.W.3d 88, 94
(Tex. App.--Houston [1st Dist.] 2002, no pet.). If there is more than a scintilla of evidence to
support a factual finding, the legal sufficiency challenge fails. Shell Compañia Argentina de
Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 836 (Tex. App.--Houston [1st Dist.]
2002, pet. denied). A ruling will be reversed for factual insufficiency 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 insufficiency, we may review
the trial court's legal conclusions drawn from the facts to determine their correctness.
Silbaugh, 126 S.W.3d at 94. If a conclusion of law is erroneous, but the proper judgment was
rendered, the erroneous conclusion of law does not require reversal. BMC Software, 83 S.W.
3d at 794.
B. Requirements of Personal Jurisdiction
Texas courts may assert personal jurisdiction over a nonresident defendant only if the Texas
long-arm statute (4) authorizes jurisdiction and the exercise of jurisdiction is consistent with
federal and state guarantees of due process. Tri-State Bldg. Specialties, Inc. v. NCI Bldg.
Sys., L.P., 184 S.W.3d 242, 248 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (citing BMC
Software, 83 S.W.3d at 795). The Texas long-arm statute reaches "as far as the federal
constitutional requirements of due process will allow." Guardian Royal Exch. Assurance, Ltd.
v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). Thus, the Texas long-arm
statute requirements are satisfied if exercising personal jurisdiction comports with federal due
process limitations. Id. We rely on precedent from the United States Supreme Court as well
as our own state's supreme court in determining whether a nonresident defendant has met
its burden to negate all bases of jurisdiction. BMC Software, 83 S.W.3d at 795.
Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a
nonresident defendant established "minimum contacts" with Texas and maintenance of the
suit would not offend "traditional notions of fair play and substantial justice." (5) Int'l Shoe Co.
v. Wash., 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945). The minimum-contacts analysis
requires that the defendant "purposefully avail" itself of the privilege of conducting activities
within Texas, thus invoking the benefits and protections of our laws. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 (1985). Purposeful availment is the
"touchstone of jurisdictional due process": "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." 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
(1958)). Purposeful availment has at least three aspects. Id. at 785. First, only the
defendant's forum-state contacts matter, not anyone else's. Id. Second, the contacts must be
purposeful, not merely random, isolated, or fortuitous. Id. Third, a nonresident defendant
must seek some benefit, advantage, or profit by "availing" itself of the jurisdiction, thus
impliedly consenting to its laws. Id. A defendant's activities, whether they consist of direct
acts within Texas or conduct outside of Texas, must justify a conclusion that the defendant
could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980). A defendant cannot be haled into
a Texas court based on the unilateral acts of a third party. Michiana Easy Livin' Country, Inc.
168 S.W.3d at 784-85. Likewise, if a defendant's Texas contacts are random, fortuitous, or
attenuated, a defendant is not subject to jurisdiction here. Id. It is the quality and nature of
the defendant's contacts, rather than their number, that are important to our analysis. See
IRA Resources, Inc. v. Greigo, 221 S.W.3d. 592, 597 (Tex. 2007). A defendant may
purposefully avoid a particular forum by structuring its transaction in such a way as to neither
profit from nor avail itself of the benefits of the forum state's laws. See Moki Mac River
Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007).
A defendant's contacts with a forum can give rise to either general or specific jurisdiction.
CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996). Specific jurisdiction is established if the
defendant's liability arises from, or is related to, an activity conducted within the forum. Id.
When specific jurisdiction is asserted, the minimum contacts analysis focuses on the
relationship among the defendant, the forum, and the litigation. Blair Communications, Inc. v.
SES Survey Equip. Servs., Inc., 80 S.W.3d 723, 727 (Tex. App.--Houston [1st Dist.] 2002, no
pet.). For a nonresident's forum contacts to support the exercise of specific jurisdiction, the
contacts must be purposely directed at or take place within the forum and there must be a
"substantial connection" between those contacts and the operative facts of the litigation. See
Moki Mac River Expeditions, 221 S.W.3d at 585. The focus of the inquiry must be the nature
of the contacts and the "nexus" these contacts create with the forum state. See McDermott v.
Cronin, 31 S.W.3d 617, 621-22 (Tex. App.--Houston [1st Dist.] 2000, no pet.).
C. Jurisdictional Analysis
For a Texas forum to properly exercise specific jurisdiction in this case, (1) TCG and Gibbs
must have made minimum contacts with Texas by purposefully availing themselves of the
privilege of conducting activities here and (2) TCG's and Gibbs's liability must have arisen
from or be related to those contacts. See Moki Mac River Expeditions, 221 S.W.3d at 576.
Merely contracting with a Texas citizen does not, by itself, satisfy these requirements.
Trigeant Holdings, Ltd. v. Jones, 183 S.W.3d 717, 725 (Tex. App.--Houston [1st Dist.] 2005,
pet. denied).
Halbridge asserts that TCG and Gibbs established sufficient minimum contacts by (1)
contracting with a Texas resident when either party is to perform the contract in whole or in
part in Texas; (2) committing a tort in whole or in part in Texas; and (3) recruiting Texas
residents for employment inside or outside of Texas. Tex. Civ. Prac. & Rem. Code Ann. §
17.042. TCG and Gibbs argue that the trial court lacks specific jurisdiction over them
because they met their burden of negating each of the potential jurisdictional bases. We
address each jurisdictional basis individually.
1. Contracting with a Texas Resident
TCG and Gibbs initially argue that the trial court lacked specific jurisdiction because (1) no
contract with Halbridge exists and (2), even if a contract did exist, a single contract is not
sufficient to establish specific jurisdiction. Halbridge concedes that there was no written
contract between himself and TCG and Gibbs. Nevertheless Halbridge argues that he was a
third-party beneficiary to the contract between TCG, Gibbs, and TASA and the parties'
continuing obligations to one another under the Memorandum are sufficient minimum
contacts to establish that TCG and Gibbs "purposefully availed" themselves of the privilege
of conducting activities within Texas and that there was a substantial connection between the
contract and the operative facts of this litigation. We disagree.
a. Third-Party Beneficiary
In determining whether a third party has the right to enforce a contract, courts look to the
express intent of the contracting parties. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995
S.W.2d 647, 651 (Tex. 1999). There is a presumption against the existence of third party
beneficiary contracts. See id. A court should not imply or create third-party-beneficiary rights
unless they are expressly intended by the contracting parties and plainly and fully spelled out
in the four corners of the contract. EPGT Tex. Pipeline, L.P. v. Harris County Flood Control
Dist., 176 S.W.3d 330, 340 (Tex. App.--Houston [1st Dist.] 2004, pet. dism'd). Thus, courts
should presume that an agreement confers no third-party-enforcement rights unless it
"clearly appears" that the contract intends a third party to benefit, to the point of suing upon
the contract. MCI Telecomms., 995 S.W.2d at 651. Accordingly, a contract does not confer
third-party-beneficiary rights unless: (1) the contract plainly expresses the third-party
obligation of the bargain-giver, (2) it is unmistakable that a benefit to the third party is within
the contemplation of the primary contracting parties, and (3) the primary parties contemplate
that the third party would be vested with the right to sue for enforcement of the contract.
EPGT Tex. Pipeline, 176 S.W.3d at 340. The fact that a third party receives incidental
benefits from a contract does not establish a right of action to enforce the contract. MCI
Telecomms., 995 S.W.2d at 650.
Even if Halbridge could prove that he was a third-party beneficiary of the agreement between
TASA and TCG and Gibbs, the agreement here does not subject TCG and Gibbs to
jurisdiction in Texas because it is between TASA, a Pennsylvania resident, and TCG and
Gibbs, who are both from Mississippi. Moreover, nothing in the agreement directs or requires
performance in Texas. See Burger King, 471 U.S. at 488, 105 S. Ct. at 2192. Thus, an
allegation of third-party beneficiary status relating to this contract is insufficient to confer
jurisdiction by a Texas court. Rather, Halbridge was required to establish a "substantial
connection" between the agreement and the state of Texas sufficient to warrant the exercise
of specific jurisdiction and satisfy federal constitutional due process requirements. See Moki
Mac River Expeditions, 221 S.W.3d at 585. As explained below, Halbridge did not make this
showing.
b. Parties' Continuing Obligations
Halbridge argues that there is a substantial connection between the contract and the State of
Texas and the parties' "continuing obligations" to one another as a result of the
Memorandum are sufficient minimum contacts to establish that TCG and Gibbs "purposefully
availed" themselves of the privilege of conducting activities within Texas. Despite the
language of the Memorandum, to which he claims to be a third-party beneficiary, stating that
all disputes concerning the Memorandum are to be resolved in Pennsylvania courts and
according to Pennsylvania law, Halbridge argues that (1) his preparatory work completed in
his Houston office and (2) the correspondence between TCG and Gibbs and Halbridge in
Texas are sufficient to warrant the exercise of specific jurisdiction in this case. We disagree.
The decision to prepare for the Mississippi trial in Texas was Halbridge's unilateral decision,
and there is no language in the Memorandum requiring that Halbridge perform any work in
Texas. There is no evidence in the record that either TCG or Gibbs requested that Halbridge
review and analyze relevant medical records in Texas, nor is there any indication that TCG
or Gibbs requested that Halbridge prepare his expert report in Texas. TCG's and Gibbs's
correspondence with Halbridge, in his Texas office, stemmed from Halbridge's decision. A
nonresident defendant, however, may not be haled into a Texas court based on the
unilateral acts of a third party. Michiana, 168 S.W.3d at 784-85. Furthermore, even had
there been a contract,
an exchange of communications in the course of developing and carrying out a contract
does not, by itself, constitute the required purposeful availment of the benefits and
protections of Texas law. Otherwise, jurisdiction could be exercised based only on the fortuity
that one of the parties happens to reside in the forum state.
Moncrief Oil Int'l Inc. v. OAO Gazprom, 481 F.3d 309, 312 (5th Cir. 2007) (citations omitted).
For these reasons, we hold that TCG and Gibbs did not contract with a Texas resident when
either party was to perform the contract in whole or in part in Texas, and the exercise of
specific jurisdiction based on the Memorandum's existence and Halbridge's allegations of
defendants' conduct regarding the Memorandum would not comport with federal
constitutional due process requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1).
2. Committing a Tort in Texas
TCG and Gibbs next argue that the trial court lacked specific jurisdiction because there is an
insufficient nexus between their alleged conduct in the commission of the torts of defamation
and business disparagement, tortious interference, or civil theft and the state of Texas. We
address each of these causes of action in turn.
a. Defamation and Business Disparagement
Halbridge's pleadings allege that Gibbs's letter to TASA, demanding a refund of the fees paid
to TASA for Halbridge's services, contained defamatory statements. Specifically, Halbridge
alleged that,
TASA declined to send MLE the amount forwarded to it by [TCG] for transmission to MLE
following the [ ] trial because Gibbs stated to TASA that Halbridge's testimony was ridiculous.
This statement was false, it was made intentionally and maliciously, and with specific intent to
harm Halbridge. Gibbs and [TCG] knew at the time the statement was made that Halbridge
was licensed to practice medicine in Texas, and further they knew that Halbridge maintained
an active medical and consulting practice in Texas.
"The tort of libel is generally held to occur wherever the offending material is circulated."
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S. Ct. 1473, 1479 (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 which it is heard, i.e., published or circulated."). Here, the letter,
written by Gibbs in Mississippi, was sent to TASA in Pennsylvania. The letter was never
circulated in Texas.
Nevertheless, relying on Supreme Court authority in Calder v. Jones, Halbridge argues that,
because the reputational injury stemming from Gibbs's statement was suffered in Texas, the
exercise of specific jurisdiction over this action in Texas is warranted. 465 U.S. 783, 104 S.
Ct. 1482 (1984). His reliance on Calder in support of this argument is misplaced. In Calder,
respondent, a professional entertainer who lived and worked in California and whose
television career was centered there, brought suit in a California court, alleging that she had
been libeled in an article written and edited by petitioners in Florida and published in the
National Enquirer, a national magazine having its largest circulation in California. Id. at 784-
85, 104 S. Ct. at 1484-85. In holding that the Florida petitioners were subject to the personal
jurisdiction of the California court, the United States Supreme Court noted that, [t]he
allegedly libelous story concerned the California activities of a California resident. It
impugned the professionalism of an entertainer whose television career was centered in
California. The article was drawn from California sources, and the brunt of the harm, in terms
of both respondent's emotional distress and the injury to her professional reputation, was
suffered in California. In sum, California is the focal point both of the story and of the harm
suffered.
Id. at 788-89, 104 S. Ct. at 1486. The Texas Supreme Court has warned that, in applying
Calder, we should be mindful of shifting our focus from "'the relationship among the
defendant, the forum, and the litigation' to the relationship among the 'plaintiff, the forum . . .
and the litigation.'" See Michiana, 168 S.W.3d at 790. "The important factor was the extent of
the defendant's activities, not merely the residence of the victim." Id. at 789.
The facts of the instant case are distinguishable from those in Calder. In this case, unlike in
Calder, the state in which specific jurisdiction is sought is not the focal point of the alleged
unlawful statements. Here, the allegedly libelous letter concerned Halbridge's statements in a
Mississippi court, not in Texas. This letter was sent only to a TASA representative in
Pennsylvania. It was not sent to Texas. While his medical practice and consulting business is
centered in Texas, Halbridge does testify in matters pending outside of Texas, as is evident
from his testimony in Mississippi for TCG and Gibbs and his registry with national expert-
referral companies. While some of Halbridge's alleged reputational injury may be suffered in
Texas, Texas is not the focus of the allegedly defamatory statement. Thus, there is not a
substantial connection between the defendants' alleged conduct and the state of Texas
sufficient to warrant the exercise of specific jurisdiction. See Moki Mac River Expeditions, 221
S.W.3d at 575. The mere fact that it was foreseeable that an alleged libelous letter would
have some effect in Texas is not a sufficient basis for an assertion of jurisdiction over a
nonresident defendant. See De Prins, 953 S.W.2d at 14. The record contains no evidence of
any marketing efforts directed to Texas by TCG and Gibbs in connection with the use of
Halbridge's services of the type that creates a nexus with the state of Texas sufficient to
warrant the exercise of specific jurisdiction. See Moki Mac River Expeditions, 221 S.W.3d at
577 (no specific jurisdiction where, among other things, the out-of-state defendant solicited
Texas residents through mass mailings and targeted direct-marketing e-mail campaigns).
Accordingly, we hold that the exercise of specific jurisdiction based on defendants' letter to
TASA would not comport with federal constitutional due process requirements under the
facts of this case.
b. Tortious Interference
We next address Halbridge's tortious interference claim, in which he alleges that TCG and
Gibbs "willfully and intentionally interfered with [his contract with TASA] by defaming [him] with
the intent to encourage TASA to withhold funds due to MLE." To establish liability for
interference with a prospective contractual or business relation, Halbridge must prove that he
was harmed by conduct on the part of TCG and Gibbs, which was either independently
tortious or unlawful. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001).
Conduct that would violate some other recognized tort or duty is "independently tortious." Id.
Similarly, the elements of tortious interference with an existing contract claim include an act
of willful or intentional interference. Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.
W.3d 74, 77 (Tex. 2000). Here, Halbridge has pleaded Gibbs's allegedly defamatory
statement as the "independently tortious" or willful and intentional act of interference. The
tort of defamation thus underlies Halbridge's tortious interference claims. Because we have
concluded that Halbridge's allegations concerning the alleged defamation are insufficient to
warrant the exercise of specific jurisdiction, we also conclude that the same allegations,
which also support Halbridge's claim for tortious interference with existing and prospective
contractual relations, are insufficient to support the exercise of specific jurisdiction in this
case.
c. Civil Theft
We next address Halbridge's civil theft of services claim under chapter 134 of the Texas Civil
Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 134.001-.005
(Vernon 2005). The entirety of Halbridge's pleadings on civil theft state that he "incorporates
each of the foregoing factual allegations herein as if fully set forth. [TCG and Gibbs] have
violated the Texas Theft Liability Act. As a result of their acts constituting theft of service,
[Halbridge] has been damaged in an amount which exceeds the minimum jurisdictional limits
of the Court. [Halbridge] 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
additional contacts with the state of Texas to support his civil theft cause of action. As we
have previously determined, the exercise of specific jurisdiction based on the allegations of
the parties' "continuing obligations" to one another as a result of the Memorandum contacts
and factual allegations in Halbridge's breach of contract, defamation, and tortious
interference claims would not comport with federal constitutional due process requirements.
These same facts likewise cannot support the exercise of specific jurisdiction under
Halbridge's civil theft claims. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2).
3. Recruiting Texas Residents for Employment (6)
TCG and Gibbs finally argue that the trial court lacked specific jurisdiction because TASA,
the intermediary through which Halbridge alleges TCG and Gibbs recruited him, is not
located in the state of Texas. Specifically, TCG and Gibbs argue that the third subsection of
the long-arm statute--providing that a nonresident defendant "does business" in Texas if it
"recruits Texas residents, directly or through an intermediary located in this state, for
employment inside or outside of this state"--requires that the intermediary have a physical
presence in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(3). In response,
Halbridge argues that, because TASA maintained a local Texas telephone number and
advertised in Texas publications, it was amenable to jurisdiction in Texas and, thus, is
"located" in Texas for purposes of the long-arm statute. (7)
As both parties note, the term "located" is undefined by statute, and we have found no case
law providing a definition. Assuming, without deciding, that TASA is "located" in Texas for
purposes of the long-arm statute, the issue whether TCG and Gibbs recruited Halbridge
remains. In BHP de Venezuela, C.A. v. Casteig, the Corpus Christi Court of Appeals
considered whether a Venezuelan corporation's contacts were sufficient to confer specific
jurisdiction where the Texas plaintiff alleged that, pursuant to an agreement between the
foreign corporation and his Texas-based employer, he had been recruited to perform
consulting services for the corporation in Venezuela. 994 S.W.2d 321, 328 (Tex. App.--
Corpus Christi 1999, pet. denied). The Corpus Christi court held that the Venezuelan
corporation had not recruited the Texas plaintiff for employment because the agreement
between the foreign corporation and the plaintiff's Texas-based employer contained no
language indicative of recruiting, and the Texas resident unilaterally sought the employment
of his Texas-based employer. Id.
Here, while Halbridge had consulted with TCG on a prior medical malpractice case, there is
nothing in the record which suggests that either TCG or Gibbs had any involvement in
selecting Halbridge as the TASA-recommended expert witness in the present dispute.
Rather, the Memorandum from TASA to TCG and Gibbs indicates that TASA asked
Halbridge to make the initial contact. There is no other language in the Memorandum that is
indicative of any recruiting on the part of TCG or Gibbs. For this reason, we conclude that
TCG and Gibbs did not recruit Halbridge for employment inside or outside of this state, and
the exercise of specific jurisdiction based on the allegations of recruitment would not comport
with federal constitutional due process requirements. See Tex. Civ. Prac. & Rem. Code Ann.
§ 17.042(3); see also Casteig, 994 S.W.2d at 328.
For the reasons stated above, TCG and Gibbs are not subject to the exercise of personal
jurisdiction by the trial court, and we hold that the trial court erred in making the legal
conclusion that it had specific jurisdiction over them. See Tex. Civ. Prac. & Rem. Code Ann. §
17.042; Tri-State, 184 S.W.3d at 248.
Accordingly, we sustain TCG's and Gibbs's third issue. Because our holding that the trial
court lacks specific jurisdiction is dispositive of this interlocutory appeal, we do not reach
TCG's or Gibbs's first or second issues.
III. Conclusion
We reverse the order denying appellants' special appearance and remand with
instructions to dismiss Tabor, Chhabra & Gibbs, P.A. and Darryl Gibbs for lack of personal
jurisdiction.
Special Appearance
In their third issue, TCG and Gibbs argue that the trial court erred in denying their special
appearance because their contacts with the state of Texas do not give rise to specific
jurisdiction. We agree.
A. Standard of Review
The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident
defendant within the personal jurisdiction of a Texas court. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 793 (Tex. 2002); Glattly v. CMS Viron Corp., 177 S.W.3d 438,
445-46 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Upon filing a special appearance,
however, the nonresident defendant assumes the burden of negating all the bases of
personal jurisdiction alleged by the plaintiff. Marchand, 83 S.W.3d at 793. The existence of
personal jurisdiction is a question of law, reviewed de novo, but that determination must
sometimes be preceded by the resolution of underlying factual disputes. Preussag
Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.--Houston [1st Dist.] 2000, pet.
dism'd w.o.j.). When, as here, the trial court issues findings of fact and conclusions of law, we
may review the findings of fact on legal and factual sufficiency grounds and review the
conclusions of law de novo as a legal question. Silbaugh v. Ramirez, 126 S.W.3d 88, 94
(Tex. App.--Houston [1st Dist.] 2002, no pet.). If there is more than a scintilla of evidence to
support a factual finding, the legal sufficiency challenge fails. Shell Compañia Argentina de
Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 836 (Tex. App.--Houston [1st Dist.]
2002, pet. denied). A ruling will be reversed for factual insufficiency 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 insufficiency, we may review
the trial court's legal conclusions drawn from the facts to determine their correctness.
Silbaugh, 126 S.W.3d at 94. If a conclusion of law is erroneous, but the proper judgment was
rendered, the erroneous conclusion of law does not require reversal. BMC Software, 83 S.W.
3d at 794.
B. Requirements of Personal Jurisdiction
Texas courts may assert personal jurisdiction over a nonresident defendant only if the Texas
long-arm statute (4) authorizes jurisdiction and the exercise of jurisdiction is consistent with
federal and state guarantees of due process. Tri-State Bldg. Specialties, Inc. v. NCI Bldg.
Sys., L.P., 184 S.W.3d 242, 248 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (citing BMC
Software, 83 S.W.3d at 795). The Texas long-arm statute reaches "as far as the federal
constitutional requirements of due process will allow." Guardian Royal Exch. Assurance, Ltd.
v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). Thus, the Texas long-arm
statute requirements are satisfied if exercising personal jurisdiction comports with federal due
process limitations. Id. We rely on precedent from the United States Supreme Court as well
as our own state's supreme court in determining whether a nonresident defendant has met
its burden to negate all bases of jurisdiction. BMC Software, 83 S.W.3d at 795.
Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a
nonresident defendant established "minimum contacts" with Texas and maintenance of the
suit would not offend "traditional notions of fair play and substantial justice." (5) Int'l Shoe Co.
v. Wash., 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945). The minimum-contacts analysis
requires that the defendant "purposefully avail" itself of the privilege of conducting activities
within Texas, thus invoking the benefits and protections of our laws. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 (1985). Purposeful availment is the
"touchstone of jurisdictional due process": "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." 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
(1958)). Purposeful availment has at least three aspects. Id. at 785. First, only the
defendant's forum-state contacts matter, not anyone else's. Id. Second, the contacts must be
purposeful, not merely random, isolated, or fortuitous. Id. Third, a nonresident defendant
must seek some benefit, advantage, or profit by "availing" itself of the jurisdiction, thus
impliedly consenting to its laws. Id. A defendant's activities, whether they consist of direct
acts within Texas or conduct outside of Texas, must justify a conclusion that the defendant
could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980). A defendant cannot be haled into
a Texas court based on the unilateral acts of a third party. Michiana Easy Livin' Country, Inc.
168 S.W.3d at 784-85. Likewise, if a defendant's Texas contacts are random, fortuitous, or
attenuated, a defendant is not subject to jurisdiction here. Id. It is the quality and nature of
the defendant's contacts, rather than their number, that are important to our analysis. See
IRA Resources, Inc. v. Greigo, 221 S.W.3d. 592, 597 (Tex. 2007). A defendant may
purposefully avoid a particular forum by structuring its transaction in such a way as to neither
profit from nor avail itself of the benefits of the forum state's laws. See Moki Mac River
Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007).
A defendant's contacts with a forum can give rise to either general or specific jurisdiction.
CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996). Specific jurisdiction is established if the
defendant's liability arises from, or is related to, an activity conducted within the forum. Id.
When specific jurisdiction is asserted, the minimum contacts analysis focuses on the
relationship among the defendant, the forum, and the litigation. Blair Communications, Inc. v.
SES Survey Equip. Servs., Inc., 80 S.W.3d 723, 727 (Tex. App.--Houston [1st Dist.] 2002, no
pet.). For a nonresident's forum contacts to support the exercise of specific jurisdiction, the
contacts must be purposely directed at or take place within the forum and there must be a
"substantial connection" between those contacts and the operative facts of the litigation. See
Moki Mac River Expeditions, 221 S.W.3d at 585. The focus of the inquiry must be the nature
of the contacts and the "nexus" these contacts create with the forum state. See McDermott v.
Cronin, 31 S.W.3d 617, 621-22 (Tex. App.--Houston [1st Dist.] 2000, no pet.).
C. Jurisdictional Analysis
For a Texas forum to properly exercise specific jurisdiction in this case, (1) TCG and Gibbs
must have made minimum contacts with Texas by purposefully availing themselves of the
privilege of conducting activities here and (2) TCG's and Gibbs's liability must have arisen
from or be related to those contacts. See Moki Mac River Expeditions, 221 S.W.3d at 576.
Merely contracting with a Texas citizen does not, by itself, satisfy these requirements.
Trigeant Holdings, Ltd. v. Jones, 183 S.W.3d 717, 725 (Tex. App.--Houston [1st Dist.] 2005,
pet. denied).
Halbridge asserts that TCG and Gibbs established sufficient minimum contacts by (1)
contracting with a Texas resident when either party is to perform the contract in whole or in
part in Texas; (2) committing a tort in whole or in part in Texas; and (3) recruiting Texas
residents for employment inside or outside of Texas. Tex. Civ. Prac. & Rem. Code Ann. §
17.042. TCG and Gibbs argue that the trial court lacks specific jurisdiction over them
because they met their burden of negating each of the potential jurisdictional bases. We
address each jurisdictional basis individually.
1. Contracting with a Texas Resident
TCG and Gibbs initially argue that the trial court lacked specific jurisdiction because (1) no
contract with Halbridge exists and (2), even if a contract did exist, a single contract is not
sufficient to establish specific jurisdiction. Halbridge concedes that there was no written
contract between himself and TCG and Gibbs. Nevertheless Halbridge argues that he was a
third-party beneficiary to the contract between TCG, Gibbs, and TASA and the parties'
continuing obligations to one another under the Memorandum are sufficient minimum
contacts to establish that TCG and Gibbs "purposefully availed" themselves of the privilege
of conducting activities within Texas and that there was a substantial connection between the
contract and the operative facts of this litigation. We disagree.
a. Third-Party Beneficiary
In determining whether a third party has the right to enforce a contract, courts look to the
express intent of the contracting parties. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995
S.W.2d 647, 651 (Tex. 1999). There is a presumption against the existence of third party
beneficiary contracts. See id. A court should not imply or create third-party-beneficiary rights
unless they are expressly intended by the contracting parties and plainly and fully spelled out
in the four corners of the contract. EPGT Tex. Pipeline, L.P. v. Harris County Flood Control
Dist., 176 S.W.3d 330, 340 (Tex. App.--Houston [1st Dist.] 2004, pet. dism'd). Thus, courts
should presume that an agreement confers no third-party-enforcement rights unless it
"clearly appears" that the contract intends a third party to benefit, to the point of suing upon
the contract. MCI Telecomms., 995 S.W.2d at 651. Accordingly, a contract does not confer
third-party-beneficiary rights unless: (1) the contract plainly expresses the third-party
obligation of the bargain-giver, (2) it is unmistakable that a benefit to the third party is within
the contemplation of the primary contracting parties, and (3) the primary parties contemplate
that the third party would be vested with the right to sue for enforcement of the contract.
EPGT Tex. Pipeline, 176 S.W.3d at 340. The fact that a third party receives incidental
benefits from a contract does not establish a right of action to enforce the contract. MCI
Telecomms., 995 S.W.2d at 650.
Even if Halbridge could prove that he was a third-party beneficiary of the agreement between
TASA and TCG and Gibbs, the agreement here does not subject TCG and Gibbs to
jurisdiction in Texas because it is between TASA, a Pennsylvania resident, and TCG and
Gibbs, who are both from Mississippi. Moreover, nothing in the agreement directs or requires
performance in Texas. See Burger King, 471 U.S. at 488, 105 S. Ct. at 2192. Thus, an
allegation of third-party beneficiary status relating to this contract is insufficient to confer
jurisdiction by a Texas court. Rather, Halbridge was required to establish a "substantial
connection" between the agreement and the state of Texas sufficient to warrant the exercise
of specific jurisdiction and satisfy federal constitutional due process requirements. See Moki
Mac River Expeditions, 221 S.W.3d at 585. As explained below, Halbridge did not make this
showing.
b. Parties' Continuing Obligations
Halbridge argues that there is a substantial connection between the contract and the State of
Texas and the parties' "continuing obligations" to one another as a result of the
Memorandum are sufficient minimum contacts to establish that TCG and Gibbs "purposefully
availed" themselves of the privilege of conducting activities within Texas. Despite the
language of the Memorandum, to which he claims to be a third-party beneficiary, stating that
all disputes concerning the Memorandum are to be resolved in Pennsylvania courts and
according to Pennsylvania law, Halbridge argues that (1) his preparatory work completed in
his Houston office and (2) the correspondence between TCG and Gibbs and Halbridge in
Texas are sufficient to warrant the exercise of specific jurisdiction in this case. We disagree.
The decision to prepare for the Mississippi trial in Texas was Halbridge's unilateral decision,
and there is no language in the Memorandum requiring that Halbridge perform any work in
Texas. There is no evidence in the record that either TCG or Gibbs requested that Halbridge
review and analyze relevant medical records in Texas, nor is there any indication that TCG
or Gibbs requested that Halbridge prepare his expert report in Texas. TCG's and Gibbs's
correspondence with Halbridge, in his Texas office, stemmed from Halbridge's decision. A
nonresident defendant, however, may not be haled into a Texas court based on the
unilateral acts of a third party. Michiana, 168 S.W.3d at 784-85. Furthermore, even had
there been a contract,
an exchange of communications in the course of developing and carrying out a contract
does not, by itself, constitute the required purposeful availment of the benefits and
protections of Texas law. Otherwise, jurisdiction could be exercised based only on the fortuity
that one of the parties happens to reside in the forum state.
Moncrief Oil Int'l Inc. v. OAO Gazprom, 481 F.3d 309, 312 (5th Cir. 2007) (citations omitted).
For these reasons, we hold that TCG and Gibbs did not contract with a Texas resident when
either party was to perform the contract in whole or in part in Texas, and the exercise of
specific jurisdiction based on the Memorandum's existence and Halbridge's allegations of
defendants' conduct regarding the Memorandum would not comport with federal
constitutional due process requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1).
2. Committing a Tort in Texas
TCG and Gibbs next argue that the trial court lacked specific jurisdiction because there is an
insufficient nexus between their alleged conduct in the commission of the torts of defamation
and business disparagement, tortious interference, or civil theft and the state of Texas. We
address each of these causes of action in turn.
a. Defamation and Business Disparagement
Halbridge's pleadings allege that Gibbs's letter to TASA, demanding a refund of the fees paid
to TASA for Halbridge's services, contained defamatory statements. Specifically, Halbridge
alleged that,
TASA declined to send MLE the amount forwarded to it by [TCG] for transmission to MLE
following the [ ] trial because Gibbs stated to TASA that Halbridge's testimony was ridiculous.
This statement was false, it was made intentionally and maliciously, and with specific intent to
harm Halbridge. Gibbs and [TCG] knew at the time the statement was made that Halbridge
was licensed to practice medicine in Texas, and further they knew that Halbridge maintained
an active medical and consulting practice in Texas.
"The tort of libel is generally held to occur wherever the offending material is circulated."
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S. Ct. 1473, 1479 (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 which it is heard, i.e., published or circulated."). Here, the letter,
written by Gibbs in Mississippi, was sent to TASA in Pennsylvania. The letter was never
circulated in Texas.
Nevertheless, relying on Supreme Court authority in Calder v. Jones, Halbridge argues that,
because the reputational injury stemming from Gibbs's statement was suffered in Texas, the
exercise of specific jurisdiction over this action in Texas is warranted. 465 U.S. 783, 104 S.
Ct. 1482 (1984). His reliance on Calder in support of this argument is misplaced. In Calder,
respondent, a professional entertainer who lived and worked in California and whose
television career was centered there, brought suit in a California court, alleging that she had
been libeled in an article written and edited by petitioners in Florida and published in the
National Enquirer, a national magazine having its largest circulation in California. Id. at 784-
85, 104 S. Ct. at 1484-85. In holding that the Florida petitioners were subject to the personal
jurisdiction of the California court, the United States Supreme Court noted that, [t]he
allegedly libelous story concerned the California activities of a California resident. It
impugned the professionalism of an entertainer whose television career was centered in
California. The article was drawn from California sources, and the brunt of the harm, in terms
of both respondent's emotional distress and the injury to her professional reputation, was
suffered in California. In sum, California is the focal point both of the story and of the harm
suffered.
Id. at 788-89, 104 S. Ct. at 1486. The Texas Supreme Court has warned that, in applying
Calder, we should be mindful of shifting our focus from "'the relationship among the
defendant, the forum, and the litigation' to the relationship among the 'plaintiff, the forum . . .
and the litigation.'" See Michiana, 168 S.W.3d at 790. "The important factor was the extent of
the defendant's activities, not merely the residence of the victim." Id. at 789.
The facts of the instant case are distinguishable from those in Calder. In this case, unlike in
Calder, the state in which specific jurisdiction is sought is not the focal point of the alleged
unlawful statements. Here, the allegedly libelous letter concerned Halbridge's statements in a
Mississippi court, not in Texas. This letter was sent only to a TASA representative in
Pennsylvania. It was not sent to Texas. While his medical practice and consulting business is
centered in Texas, Halbridge does testify in matters pending outside of Texas, as is evident
from his testimony in Mississippi for TCG and Gibbs and his registry with national expert-
referral companies. While some of Halbridge's alleged reputational injury may be suffered in
Texas, Texas is not the focus of the allegedly defamatory statement. Thus, there is not a
substantial connection between the defendants' alleged conduct and the state of Texas
sufficient to warrant the exercise of specific jurisdiction. See Moki Mac River Expeditions, 221
S.W.3d at 575. The mere fact that it was foreseeable that an alleged libelous letter would
have some effect in Texas is not a sufficient basis for an assertion of jurisdiction over a
nonresident defendant. See De Prins, 953 S.W.2d at 14. The record contains no evidence of
any marketing efforts directed to Texas by TCG and Gibbs in connection with the use of
Halbridge's services of the type that creates a nexus with the state of Texas sufficient to
warrant the exercise of specific jurisdiction. See Moki Mac River Expeditions, 221 S.W.3d at
577 (no specific jurisdiction where, among other things, the out-of-state defendant solicited
Texas residents through mass mailings and targeted direct-marketing e-mail campaigns).
Accordingly, we hold that the exercise of specific jurisdiction based on defendants' letter to
TASA would not comport with federal constitutional due process requirements under the
facts of this case.
b. Tortious Interference
We next address Halbridge's tortious interference claim, in which he alleges that TCG and
Gibbs "willfully and intentionally interfered with [his contract with TASA] by defaming [him] with
the intent to encourage TASA to withhold funds due to MLE." To establish liability for
interference with a prospective contractual or business relation, Halbridge must prove that he
was harmed by conduct on the part of TCG and Gibbs, which was either independently
tortious or unlawful. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001).
Conduct that would violate some other recognized tort or duty is "independently tortious." Id.
Similarly, the elements of tortious interference with an existing contract claim include an act
of willful or intentional interference. Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.
W.3d 74, 77 (Tex. 2000). Here, Halbridge has pleaded Gibbs's allegedly defamatory
statement as the "independently tortious" or willful and intentional act of interference. The
tort of defamation thus underlies Halbridge's tortious interference claims. Because we have
concluded that Halbridge's allegations concerning the alleged defamation are insufficient to
warrant the exercise of specific jurisdiction, we also conclude that the same allegations,
which also support Halbridge's claim for tortious interference with existing and prospective
contractual relations, are insufficient to support the exercise of specific jurisdiction in this
case.
c. Civil Theft
We next address Halbridge's civil theft of services claim under chapter 134 of the Texas Civil
Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 134.001-.005
(Vernon 2005). The entirety of Halbridge's pleadings on civil theft state that he "incorporates
each of the foregoing factual allegations herein as if fully set forth. [TCG and Gibbs] have
violated the Texas Theft Liability Act. As a result of their acts constituting theft of service,
[Halbridge] has been damaged in an amount which exceeds the minimum jurisdictional limits
of the Court. [Halbridge] 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
additional contacts with the state of Texas to support his civil theft cause of action. As we
have previously determined, the exercise of specific jurisdiction based on the allegations of
the parties' "continuing obligations" to one another as a result of the Memorandum contacts
and factual allegations in Halbridge's breach of contract, defamation, and tortious
interference claims would not comport with federal constitutional due process requirements.
These same facts likewise cannot support the exercise of specific jurisdiction under
Halbridge's civil theft claims. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2).
3. Recruiting Texas Residents for Employment (6)
TCG and Gibbs finally argue that the trial court lacked specific jurisdiction because TASA,
the intermediary through which Halbridge alleges TCG and Gibbs recruited him, is not
located in the state of Texas. Specifically, TCG and Gibbs argue that the third subsection of
the long-arm statute--providing that a nonresident defendant "does business" in Texas if it
"recruits Texas residents, directly or through an intermediary located in this state, for
employment inside or outside of this state"--requires that the intermediary have a physical
presence in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(3). In response,
Halbridge argues that, because TASA maintained a local Texas telephone number and
advertised in Texas publications, it was amenable to jurisdiction in Texas and, thus, is
"located" in Texas for purposes of the long-arm statute. (7)
As both parties note, the term "located" is undefined by statute, and we have found no case
law providing a definition. Assuming, without deciding, that TASA is "located" in Texas for
purposes of the long-arm statute, the issue whether TCG and Gibbs recruited Halbridge
remains. In BHP de Venezuela, C.A. v. Casteig, the Corpus Christi Court of Appeals
considered whether a Venezuelan corporation's contacts were sufficient to confer specific
jurisdiction where the Texas plaintiff alleged that, pursuant to an agreement between the
foreign corporation and his Texas-based employer, he had been recruited to perform
consulting services for the corporation in Venezuela. 994 S.W.2d 321, 328 (Tex. App.--
Corpus Christi 1999, pet. denied). The Corpus Christi court held that the Venezuelan
corporation had not recruited the Texas plaintiff for employment because the agreement
between the foreign corporation and the plaintiff's Texas-based employer contained no
language indicative of recruiting, and the Texas resident unilaterally sought the employment
of his Texas-based employer. Id.
Here, while Halbridge had consulted with TCG on a prior medical malpractice case, there is
nothing in the record which suggests that either TCG or Gibbs had any involvement in
selecting Halbridge as the TASA-recommended expert witness in the present dispute.
Rather, the Memorandum from TASA to TCG and Gibbs indicates that TASA asked
Halbridge to make the initial contact. There is no other language in the Memorandum that is
indicative of any recruiting on the part of TCG or Gibbs. For this reason, we conclude that
TCG and Gibbs did not recruit Halbridge for employment inside or outside of this state, and
the exercise of specific jurisdiction based on the allegations of recruitment would not comport
with federal constitutional due process requirements. See Tex. Civ. Prac. & Rem. Code Ann.
§ 17.042(3); see also Casteig, 994 S.W.2d at 328.
For the reasons stated above, TCG and Gibbs are not subject to the exercise of personal
jurisdiction by the trial court, and we hold that the trial court erred in making the legal
conclusion that it had specific jurisdiction over them. See Tex. Civ. Prac. & Rem. Code Ann. §
17.042; Tri-State, 184 S.W.3d at 248.
Accordingly, we sustain TCG's and Gibbs's third issue. Because our holding that the trial
court lacks specific jurisdiction is dispositive of this interlocutory appeal, we do not reach
TCG's or Gibbs's first or second issues.
III. Conclusion
We reverse the order denying appellants' special appearance and remand with
instructions to dismiss Tabor, Chhabra & Gibbs, P.A. and Darryl Gibbs for lack of personal
jurisdiction.
========
Markette v. X-Ray (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Yates)
REVERSED AND RENDERED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Edelman and Seymore
14-07-00146-CV Robert P. Markette, Jr. and Gilliland & Caudill, L.L.P v. X-Ray X-Press
Corporation--Appeal from 165th District Court of Harris County (Hon. Elizabeth Ray)
Appellants appeal the trial court=s order denying their special appearance. Because we
determine that appellee has not met its burden of alleging facts showing that appellants=
contacts with Texas are substantially connected to the operative facts of the underlying
litigation, we reverse and render judgment dismissing this case for lack of personal
jurisdiction.
I. Background
After appellee X-Ray X-Press Corporation (AX-Ray@), a Texas corporation, was sued in
Indiana by C&G Technologies, Inc. (AC&G@), it hired appellant Gilliland & Caudill, L.L.P.
(AGilliland@), an Indiana law firm, to defend its interests. Appellant Robert P. Markette, Jr.,
an attorney with Gilliland who is licensed to practice law in Indiana, sent X-Ray a letter in
Texas via facsimile stating that he Awill be handling the litigation currently pending in
Washington County, Indiana.@ Markette also enclosed a copy of Gilliland=s standard legal
services contract, which X-Ray signed in Texas and returned to Markette. Immediately
before the line for X-Ray=s signature, the contract states: AI have read and understand the
foregoing and wish to retain [Gilliland] to represent [X-Ray] in litigation currently pending in
Washington County[,] Indiana.@
Markette filed a motion to dismiss the Indiana suit for lack of personal jurisdiction, which the
Indiana court denied. Markette then wrote X-Ray a letter, which he emailed to X-Ray in
Texas, providing legal advice as to three options for proceeding. This case centers around
the first option:
The first option is to take no further action. If [X-Ray] does not file an answer in this matter,
[C&G] will move for default judgment. Assuming [X-Ray] ignores the motion, the Court will
grant judgment in favor of [C&G] for the amount it demanded in its complaint. At that time,
[C&G] will institute enforcement proceedings in order to collect the judgment. [X-Ray] could,
at that time, relitigate the issue of jurisdiction. Because [C&G] would likely need to use the
Texas court system to enforce the judgment, [X-Ray] could attack the jurisdiction in a Texas
court, which would be more likely to agree that Indiana did not have jurisdiction over a Texas
company. However, if the Texas court=s [sic] agreed with the Indiana court, [X-Ray] would be
saddled with a default judgment that it would have to satisfy.
(emphasis added). X-Ray followed this first option and allowed C&G to obtain a default
judgment against it in the Indiana suit. Thereafter, C&G filed a suit in Texas to enforce the
judgment, and X-Ray was ultimately required to satisfy that judgment.
X-Ray sued Markette and Gilliland for legal malpractice and many related claims, including
fraud, negligent misrepresentation, breach of fiduciary duty, and breach of contract.
Markette and Gilliland filed special appearances. The trial court initially granted their special
appearances, but thereafter, the court granted X-Ray=s motion for new trial and reversed its
ruling. Markette and Gilliland then filed this interlocutory appeal. See Tex. Civ. Prac. & Rem.
Code Ann. ' 51.014(a)(7) (Vernon Supp. 2006) (allowing interlocutory appeal from denial of
special appearance).
II. Analysis
Whether a trial court has personal jurisdiction over a defendant is a question of law. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Schott Glas v. Adame,
178 S.W.3d 307, 312 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). When, as here,
the facts underlying the jurisdictional issue are undisputed, we review the trial court=s
determination de novo. Schott Glas, 178 S.W.3d at 312; see American Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The plaintiff bears the initial
burden of pleading facts sufficient to establish personal jurisdiction. Marchand, 83 S.W.3d at
793; Schott Glas, 178 S.W.3d at 313. The burden then shifts to the defendant challenging
personal jurisdiction to negate all bases of jurisdiction alleged by the plaintiff.[1] Marchand,
83 S.W.3d at 793; Schott Glas, 178 S.W.3d at 313.
The Texas long-arm statute governs Texas courts= exercise of personal jurisdiction over a
nonresident defendant. See Tex. Civ. Prac. & Rem. Code Ann. '' 17.041B.045 (Vernon 1997
& Supp. 2006); Schott Glas, 178 S.W.3d at 312. The long-arm statute reaches as far as
federal constitutional due process will allow, and thus the long-arm statute is satisfied if an
assertion of personal jurisdiction comports with due process. See Moki Mac River
Expeditions v. Drugg, No. 04-0432, __ S.W.3d __, 2007 WL 623805, at *3 (Tex. Mar. 2,
2007); Schott Glas, 178 S.W.3d at 312. Personal jurisdiction is proper when the nonresident
defendant has established Aminimum contacts@ with the forum and the exercise of
jurisdiction comports with A>traditional notions of fair play and substantial justice.=@ Moki
Mac, 2007 WL 623805, at *3 (quoting Int=l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)). The touchstone of the minimum contacts analysis is purposeful availmentCthe
defendant=s contacts must show that it purposefully availed itself of the privileges and
protections of the forum=s law to subject itself to jurisdiction there. See Michiana Easy Livin=
Country, Inc. v. Holten, 168 S.W.3d 777, 784B85 (Tex. 2005).
A defendant=s contacts can give rise to either general or specific jurisdiction. General
jurisdiction is based on continuous and systematic contacts with the forum. Moki Mac, 2007
WL 623805, at *4. Specific jurisdiction is based on purposeful contacts that give rise or
relate to the litigation. Id. In this case, X-Ray alleges only specific jurisdiction. Thus, for the
trial court to have properly exercised specific jurisdiction in this case, (1) Markette and
Gilliland must have made minimum contacts with Texas by purposefully availing themselves
of the privilege of conducting activities here and (2) their liability must have arisen from or
relate to those contacts. See id.
In Moki Mac, the supreme court analyzed the relatedness requirement of specific jurisdiction.
The court noted that neither it nor the United States Supreme Court had given much
guidance as to how closely related a cause of action must be to the defendant=s forum
activities to support personal jurisdiction. See id. at *7, 12. After discussing and rejecting
three other approaches, the court determined that Afor 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.@ See id. at
*7B12. Thus, the court held in Moki Mac that the Texas contacts of a Utah-based expedition
company were not sufficiently related to the cause of action because the operative facts of
the litigation principally concerned the negligence of guides in Arizona, even though the
plaintiff parents may have relied on the company=s safety representations made in the
promotional materials it sent to Texas in deciding to send their son on a fatal rafting trip in
Arizona. See id. at *1, 12B13.
The Moki Mac court analogized the facts of its case to our previous decision in Brocail v.
Anderson, 132 S.W.3d 552 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). See Moki
Mac, 2007 WL 623805, at *15. Brocail involved an injured former Detroit Tigers pitcher who
underwent treatment by a team doctor in Michigan. Brocail, 132 S.W.3d at 555. When the
pitcher decided to return to his home in Texas, the doctor prescribed follow-up physical
therapy treatments that were administered in Texas. Id. The doctor faxed treatment
prescriptions to Texas and communicated with the physical therapists in Texas. Id. The
pitcher sued the Michigan doctor in Texas, asserting specific jurisdiction based on the
doctor=s contacts with Texas regarding his physical therapy and the doctor=s alleged
misrepresentation in Texas by failing to fully disclose the true extent of his injuries to the
physical therapists. Id. at 558. We rejected this argument, stating that the pitcher Ais
complaining about a physical injury based on a course of treatment. Any tort occurred in the
exercise of medical judgment in prescribing a course of physical therapy from Michigan, not
from the communication of that prescription to [Texas].@ Id. at 563. The court in Moki Mac
applied this analysis to its case, noting that the injuries for which the parent plaintiffs sought
recovery were based on their son=s death in Arizona and that the relationship between the
operative facts of the litigation and the company=s Texas promotional activities were too
attenuated to satisfy due process. See Moki Mac, 2007 WL 623805, at *15.
We find Moki Mac and Brocail controlling in this case. X-Ray=s primary jurisdictional
allegation is that Markette provided incorrect legal advice about Texas law upon which it
relied to its detriment. Markette exercised his legal judgment and formed his legal opinions in
Indiana, which he then communicated to X-Ray in Texas. The operative facts of the
underlying litigation will focus primarily on the Markette=s legal advice, not the
communication of that advice to Texas, and thus specific jurisdiction does not arise in this
case. See Moki Mac, 2007 WL 623805, at *15; Brocail, 132 S.W.3d at 563.
X-Ray argues that Markette=s act of giving legal advice on Texas law directed to a Texas
client is sufficient to establish personal jurisdiction. Despite appellants= assertion that it did
not provide legal advice on Texas law because it cited no cases or statutes and was merely
discussing possibilities, we conclude that advising X-Ray that it Acould attack the jurisdiction
in a Texas court, which would be more likely to agree that Indiana did not have jurisdiction
over a Texas company@ constituted legal advice about Texas law. (emphasis added).
However, that is still insufficient to establish personal jurisdiction. Markette=s legal judgment,
which will be the focus of the underlying litigation, was exercised in Indiana, just as the doctor
in Brocail exercised his medical judgment in Michigan. Moreover, the supreme court has
rejected the notion of focusing on where a defendant directed a tort or where the effects of
tortious conduct will be felt in determining specific jurisdiction.[2] See Michiana, 168 S.W.3d
at 790B92. Rather, we analyze the degree of connectedness between the forum contacts
and the litigation to determine whether the operative facts of the litigation focus on those
contacts. See Moki Mac, 2007 WL 623805, at *12B13.
Because we conclude that X-Ray has not met its burden of pleading facts sufficient to give
rise to specific jurisdiction because Markette=s and Gilliland=s Texas conduct is not
substantially connected to the operative facts of the litigation, we need not reach Markette=s
and Gilliland=s second issue, in which they argue that exercise of personal jurisdiction does
not comport with traditional notions of fair play and substantial justice. We reverse the trial
court=s judgment and render judgment dismissing this case for lack of personal jurisdiction.
/s/ Leslie B. Yates
Justice
Judgment rendered and Opinion filed August 30, 2007.
Panel consists of Justices Yates, Edelman, and Seymore.
--------------------------------------------------------------------------------
[1] X-Ray makes several arguments as to how appellants have not met their burden of negating all bases of jurisdiction. We
need not consider these arguments because we conclude that the basic jurisdictional facts alleged by X-Ray, which are not
disputed, do not establish jurisdiction, and thus X-Ray has not met its initial burden.
[2] The Michiana court specifically disapproved of this court=s opinion in Memorial Hospital System v. Fisher Insurance
Agency, Inc., 835 S.W.2d 645, 650 (Tex. App.CHouston [14th Dist.] 1992, no writ), in which we had held that Aif the
tortfeasor knows that the brunt of the injury will be felt by a particular resident in the forum, it must reasonably anticipate
being haled into court there to answer for its actions.@ See Michiana, 168 S.W.3d at 792 n.81. We note that two of X-
Ray=s primary authorities supporting jurisdiction against appellants rely on Memorial Hospital. See Tempest Broadcasting
Corp. v. Imlay, 150 S.W.3d 861, 874 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Cartlidge v. Hernandez, 9 S.W.3d 341,
347B49 (Tex. App.CHouston [14th Dist.] 1999, no pet.). X-Ray=s other primary authority, though not relying on Memorial
Hospital, is distinguishable on its facts because the nonresident lawyer specifically promised to protect the forum client=s
subrogation interest in Texas whereas here, Markette never promised to represent X-Ray in Texas. See Rowland & Rowland,
P.C. v. Tex. Employers Indem. Co., 973 S.W.2d 432, 435B36 (Tex. App.CAustin 1998, no pet.).
====
Boston Medical Group v. Ellis (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Frost)(special
appearance, medical malpractice, failed penis repair)
M E M O R A N D U M O P I N I O N
This is an interlocutory appeal from the trial court=s order denying the special appearance of
a nonresident corporation. We affirm.
I. Factual and Procedural Background
Appellee Mark Ellis, a Texas resident brought suit against Boston Medical GroupBTexas, P.
A., a Texas corporation (ABoston MedicalBTexas@), Dr. Jacques Roy, M.D. (ADr. Roy@), a
Texas resident, and Boston Medical Group, Inc. (ABoston Medical, Inc.@), a California
corporation, to recover damages allegedly sustained as a result of medical malpractice. Ellis
claims that he suffered permanent injury as a result of the defendants= negligent care and
treatment of a sexual dysfunction.
Ellis went to Boston MedicalBTexas to seek medical treatment of a sexual dysfunction. Dr.
Roy examined Ellis and diagnosed him with decreased erectile function secondary to
decreased blood flow. On July 16, 2003, Dr. Roy prescribed medication that Ellis was to
inject into his penis when he desired to achieve an erection. Ellis contends that he was
provided with literature that was misleading and enticed him to purchase medication sold by
the defendants. Ellis purchased the medication, and performed this selfBinjection on July 19,
2003. Two days later, on July 21, 2003, Ellis continued to have an erection, so he returned
to see Dr. Roy. Dr. Roy attempted to decompress the erection for approximately ten hours,
and when these attempts were unsuccessful, he instructed Ellis to check into a nearby hotel.
After several hours without change, Dr. Roy instructed Ellis to go to the emergency room at
Memorial Hermann Hospital, where he underwent surgical decompression. This surgery left
Ellis impotent.
Ellis brought suit against Boston Medical-Texas, Boston Medical, Inc. and Dr. Roy. He claims
Boston Medical, Inc. is liable for actual and punitive damages based on the alleged
negligence, gross negligence, and malice of its agents and employees. After being sued,
Boston MedicalBTexas and Dr. Roy entered general appearances and did not challenge the
personal jurisdiction of the trial court over them. However, Boston Medical, Inc. filed a
special appearance alleging that the trial court lacked personal jurisdiction over it because
there was no specific or general jurisdiction. After a hearing, the trial court denied Boston
Medical, Inc.=s special appearance. In this interlocutory appeal, Boston Medical, Inc.
challenges the trial court=s jurisdictional ruling.
II. Standard of Review
Whether Boston Medical, Inc. is subject to personal jurisdiction in Texas is a question of law
subject to de novo review. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,
794 (Tex. 2002). The trial court did not issue any findings of fact or conclusions of law.
Therefore, all facts necessary to support the trial court=s ruling and supported by the
evidence are implied in favor of the trial court=s decision. Id. at 795. Parties may challenge
the legal and factual sufficiency of these implied factual findings. Id. In conducting a
no‑evidence analysis, we review the evidence in the light most favorable to the challenged
finding and indulge every reasonable inference that would support it. See City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit favorable evidence if a
reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder
could not. See id. at 827. We must determine whether the evidence at trial would enable
reasonable and fair‑minded people to find the facts at issue. See id. The factfinder is the
sole judge of the credibility of the witnesses and the weight of their testimony. See id. at 819.
When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire
record, considering both the evidence in favor of, and contrary to, the challenged finding.
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the
evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599,
615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). We may not substitute our own
judgment for that of the trier of fact, even if we would reach a different answer on the
evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount
of evidence necessary to affirm a judgment is far less than that necessary to reverse a
judgment. GTE Mobilnet, 61 S.W.3d at 616.
III. Issues and Analysis
In two issues, Boston Medical, Inc. challenges the trial court=s implied findings of specific and
general jurisdiction, and its denial of the special appearance. More specifically, Boston
Medical, Inc. contends the evidence is legally and factually insufficient to support the trial
court=s order denying its special appearance. Thus, the main issue before this court is
whether the evidence is legally and factually sufficient to support the trial court=s implied
findings of jurisdiction.
The Texas long‑arm statute governs Texas courts= exercise of jurisdiction over nonresident
defendants. Tex. Civ. Prac. & Rem. Code Ann. '' 17.041B.045 (Vernon Supp. 2005). It allows
courts to exercise personal jurisdiction as far as the federal constitutional requirements of
due process will permit. See BMC Software, 83 S.W.3d at 795. We rely on precedent from
the United States Supreme Court and from other federal courts, as well as Texas decisions,
in determining whether a nonresident defendant has shown that the exercise of personal
jurisdiction violates federal due process guarantees. Id.
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 personal jurisdiction comports with traditional notions of fair play and substantial
justice. Id. A nonresident defendant that purposefully has availed itself of the privileges and
benefits of conducting business in Texas has sufficient contacts to allow Texas courts to
exercise personal jurisdiction over the nonresident. Id. Although not determinative,
foreseeability is an important consideration in deci