Michael Simmons v. Boyd Gaming Corporation and Delta Downs Racetrack Casino and Hotel ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00470-CV
____________________
MICHAEL SIMMONS, Appellant
V.
BOYD GAMING CORPORATION AND DELTA DOWNS RACETRACK
CASINO AND HOTEL, Appellees
_______________________________________________________ ______________
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-198,636
________________________________________________________ _____________
MEMORANDUM OPINION
Michael Simmons appeals the trial court’s interlocutory order granting the
joint special appearance filed by Boyd Gaming Corporation and Delta Downs
Racetrack Casino and Hotel. The trial court did not reduce its findings and
conclusions to writing, but its ruling implies that it found that the two businesses
were not incorporated in Texas, and that the two businesses did not have their
principal place of business there. Because the evidence failed to show that the
1
businesses were at home in Texas, and because Simmons failed to demonstrate that
his claims against the businesses had a substantial connection with the forum in
Texas, we affirm the order granting the businesses’ request to be dismissed from the
case.
Background
On May 28, 2016, Billy Eston Horton1 drove to Vinton, Louisiana to gamble
at Delta Downs Racetrack Casino and Hotel (Delta Downs).2 According to the
allegations in the Plaintiff’s Second Amended Original Petition,3 while at Delta
Downs, Horton was served alcoholic beverages after it would have been obvious to
the individuals who were serving him that he was intoxicated. The evidence before
1
For the purpose of disclosing potential conflicts, we note that Justice Horton
is not related to Billy Eston Horton.
2
The pleadings filed on behalf of Delta Downs indicate that Delta Downs is
used as an assumed name for Boyd Racing, LLC, and that Boyd Racing is a limited
liability company organized under the laws of Louisiana. The evidence in the record
also reflects that Boyd Gaming is the parent corporation of Boyd Racing, LLC. In
the opinion, we use Delta Downs when referring to Boyd Racing, LLC, as that is the
name the business uses in its advertising in Southeast Texas.
The Plaintiff’s Second Amended Original Petition was the live petition that
3
was before the trial court when it ruled on the joint special appearance filed by the
defendants.
2
the trial court when it ruled on the joint special appearance includes two affidavits4
that Horton executed, which Simmons filed to support his argument that the trial
court could exercise jurisdiction over Boyd Gaming and Delta Downs. Both of
Horton’s affidavits indicate that he had been drinking at Delta Downs before the
collision occurred, but both are silent on the subject of whether Horton became
intoxicated at the casino, whether Horton was aware he was intoxicated when he left
the casino, or how those serving him might have known that he was intoxicated.
Nevertheless, several facts were undisputed in the hearing, including that Horton
owned the car he was driving when the collision occurred, that Simmons suffered
injuries when Horton’s vehicle struck the vehicle Simmons was driving, that Delta
Downs’ employees served Horton beverages containing alcohol while he was at
Delta Downs, and that Horton’s and Simmons’ vehicles collided in Jefferson
County, Texas. After the collision, Simmons sued Horton, Boyd Gaming and Delta
Downs in a district court in Jefferson County, Texas claiming that their negligence
proximately caused the injuries that he suffered in the collision. Although Simmons’
live pleadings allege a general negligence claim, he characterized his claims against
4
Two affidavits executed by Horton were before the trial court when it ruled
on the joint special appearance. Horton executed the first affidavit in September
2016, and he executed the second in November 2016.
3
Boyd Gaming and Delta Downs during the hearing and in his appeal as claims based
on violations of the Texas Dram Shop Act. See Tex. Alco. Bev. Code Ann. §
2.02(b)(1), (2) (West 2007) (creating a statutory cause of action against a person
who provides, sells or serves alcohol to a person when it was “apparent to the
provider that the individual” served an “alcoholic beverage was obviously
intoxicated” if the individual’s intoxication was a proximate cause of the plaintiff’s
injuries).
In response to Simmons’ suit, Boyd Gaming and Delta Downs filed a joint
special appearance.5 In the joint special appearance, Boyd Gaming and Delta Downs
alleged that they were not Texas residents, that they had not purposefully performed
an act or transaction in Texas that would allow a Texas court to exercise jurisdiction
over them, and that no substantial connection existed between Simmons’ claims
against them and their conduct in Texas.
5
The joint special appearance as initially filed was not verified; however, the
Texas Rules of Civil Procedure allows defects in special appearances to “be
amended to cure defects.” See Tex. R. Civ. P. 120a(1). Prior to the hearing the trial
court conducted on the joint special appearance, Boyd Gaming and Delta Downs
amended the special appearance and attached the unsworn declaration of Diane
Mitnik to their amended pleading. See Tex. Civ. Prac. & Rem. Code Ann. §
132.001(a) (West Supp. 2016) (with exceptions that are not pertinent here, allowing
unsworn declarations to be used in lieu of written sworn declarations, verifications,
certifications, oaths or affidavits when a rule or statute requires an affidavit).
4
Additionally, Boyd Gaming and Delta Downs supported their special
appearance with an unsworn declaration executed by Diane Mitnik, their authorized
representative. Mitnik’s declaration states that Boyd Gaming is a Nevada
corporation whose principal place of business is in Las Vegas, Nevada, and that
Delta Downs is a Louisiana limited liability company whose principal place of
business is in Vinton, Louisiana. Mitnik’s declaration further states that Boyd
Gaming and Delta Downs do not have registered agents in Texas, that the officers
of the businesses do not reside in Texas, that neither business has offices, bank
accounts, or property in Texas, that the two businesses do not pay taxes in Texas,
and that neither business purposefully directed its activities toward Texas “regarding
any facts or circumstances of this case[.]” The statements in Mitnik’s unsworn
declaration rebutted Simmons’ allegations that Boyd Gaming and Delta Downs
committed acts in Texas that were relevant to Simmons’ Dram Shop Act claims.
Simmons filed a number of documents before the hearing that he obtained in
discovery. The documents Simmons filed include an affidavit from Newton
Schwartz, the principal attorney in the firm representing Simmons. Schwartz’s
affidavit summarizes the documents that Simmons acquired in discovery. Prior to
the hearing on the joint special appearance, Simmons also filed two affidavits that
Horton executed before the hearing. These indicate that Horton had been drinking at
5
Delta Downs on the evening of the collision, that Horton received advertising from
Boyd Gaming and Delta Downs that was e-mailed to him, that these e-mails
promoted the benefits of his membership with Boyd Gaming as a B Connected
Cardmember, and that the benefits he was receiving as a B Connected Cardmember
“were the enticements [that caused] me to travel to the casino on the evening in
question as those same enticements have caused me to participate in gaming
activities at the casino prior to the date of this incident.” However, the e-mails that
Horton claimed he received that prompted him to go to Delta Downs in the period
relevant to his collision with Simmons were not included among the documents the
trial court was asked to consider in ruling on the joint special appearance.
Additionally, the evidence in the record regarding the benefits enjoyed by Boyd
Gaming’s B Connected Cardmembers shows that the privileges of that type of
membership entitle an individual to have a personalized home page with Boyd
Gaming’s online player community, to have access to Boyd Gaming’s offers and
promotions, to receive the best rates available on hotel rooms, to receive offers,
promotional calendars, and real-time alerts about current offers, to allow members
to view the balances in their accounts, to have real-time account access, to access
hotel and dining reservations online, to allow members to locate their favorite slot
machines at all Boyd Gaming casinos, and to have access to webcams featuring live
6
shots from Boyd gaming casinos around the country. In summary, the marketing
material that is actually in the record shows marketing that generally promotes
gaming at Boyd Gaming casinos, and there was no advertising or e-mail solicitations
in the record showing that Boyd Gaming and Delta Downs advertised the availability
of complimentary alcoholic beverages in Texas to the public or to those with B
Connected memberships.
The evidence before the trial court included vendor summaries showing that
Delta Downs purchased over $6,000,000 in goods and services from Texas vendors
in the twenty-nine month period before the collision occurred, and that Delta Downs
spent approximately $2,500,000 advertising in Southeast Texas over a twenty-seven
month period ending on June 30, 2016. However, the summaries showing that Delta
Downs did business with Texas-based businesses do not reflect whether those
contracts were performed in Texas or whether they were performed in Louisiana.
Nonetheless, the record does not show that the trial court refused to consider any of
the documents the parties submitted to support their arguments on the merits of the
joint special appearance, so we presume the trial court considered all of the
documents that were before it when it decided to grant the joint special appearance.
See Tex. R. Civ. P. 120a(3).
7
The trial court conducted a hearing on Boyd Gaming’s and Delta Downs’ joint
special appearance in November 2016. No witnesses testified during the hearing.
Approximately one week after the hearing, the trial court granted the joint special
appearance, dismissing Boyd Gaming and Delta Downs from Simmons’ suit.
After the trial court dismissed the case, Simmons asked the trial court to issue
findings of fact and conclusions of law to explain the reasons for its ruling. See Tex.
R. Civ. P. 296 (requiring that a party file its request for findings within twenty days
of the trial court’s ruling). Although Simmons asked the trial court for written
findings, the record reflects that no written findings or conclusions were filed.
Simmons timely filed his notice of appeal, authorizing our review of the trial court’s
order. See Tex. R. App. P. 26.1(b) (requiring that a party file a notice of appeal from
an interlocutory order that is immediately appealable within twenty days after the
order is signed).
Issues Presented
On appeal, Simmons argues the trial court erred by dismissing his claims
against Boyd Gaming and Delta Downs because the trial court had both general and
specific jurisdiction over Boyd Gaming and Delta Downs with respect to his Dram
Shop Act claims. While Simmons’ brief identifies seven separate issues, his issues
actually present only two arguments that the pleadings and the evidence relevant to
8
the resolution of the joint special appearance demonstrated that the trial court had
the right to exercise general and specific jurisdiction over his Dram Shop Act claims.
Generally, Simmons argues that the evidence before the trial court reflects that the
business contacts of Boyd Gaming and Delta Downs are continuous and systematic
enough to justify the exercise of general jurisdiction, and that the marketing of Delta
Downs in Southeast Texas and to Horton required the trial court to conclude that
Simmons’ Dram Shop Act claims were substantially related to the activities the
businesses conducted in the State of Texas.
Standard of Review
Whether a trial court has jurisdiction over a defendant presents an issue that
is to be decided as a matter of law; as a result, the trial court’s decision on a special
appearance is reviewed using a de novo standard. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Trial courts are required to resolve
special appearances based on the parties’ pleadings, any stipulations between the
parties, the affidavits and attachments that the parties file with their pleadings, the
results of any discovery, and any oral testimony presented during the hearing on the
special appearance. Tex. R. Civ. P. 120a(3). In hearings on special appearances, the
plaintiff and the defendant bear shifting burdens of proof. See Kelly v. Gen. Interior
Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). As the plaintiff, Simmons had the
9
initial burden of filing pleadings that included allegations of fact that were sufficient
to demonstrate that Boyd Gaming and Delta Downs could be sued based on the
provisions found in the Texas long-arm statute. See BMC Software, 83 S.W.3d at
793; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041-.045 (West 2015) (Long-
Arm Jurisdiction in Suit on Business Transaction or Tort).
Under the Texas long-arm statute, Texas courts may exercise personal
jurisdiction over nonresidents “as far as the federal constitutional requirements of
due process will permit.” BMC Software, 83 S.W.3d at 795 (citation omitted); see
also Tex. Civ. Prac. & Rem. Code Ann. § 17.042. With respect to claims sounding
in tort, the Texas long-arm statute provides that a nonresident is doing business in
Texas if the nonresident “commits a tort in whole or in part in this state[.]” Tex. Civ.
Prac. & Rem. Code Ann. § 17.042(2). Therefore, in considering Simmons’ claim
that Boyd Gaming and Delta Downs violated the Dram Shop Act, the trial court was
required to decide whether Simmons alleged that the tort occurred in whole or in
part in Texas and to decide whether Simmons established that the allegedly tortious
conduct of Boyd Gaming and of Delta Downs occurred in whole or in part in Texas.
If the pleadings allege sufficient facts to show that a defendant is subject to
the Texas long-arm statute, a defendant may challenge the validity of the factual
allegations in the plaintiff’s pleadings by filing a special appearance. Tex. R. Civ. P.
10
120a(1). The special appearance is to be made by sworn motion, and the sworn
motion should negate the factual allegations in the plaintiff’s pleadings that, if not
negated, would allow the trial court to conclude that the conduct the nonresidents
allegedly committed occurred in Texas. See BMC Software, 83 S.W.3d at 793; Tex.
R. Civ. P. 120a(1).
Based on the statements in Mitnik’s declaration, the burden of proof shifted
to Simmons to prove that Boyd Gaming and Delta Downs, respectively, each had its
principal place of business in Texas, that each committed a tort in whole or in part
in Texas, or that each business’s activities within the State of Texas gave rise to
Simmons’ Dram Shop Act claim. See Kelly, 301 S.W.3d at 659 (noting that after the
defendant negates plaintiff’s allegations regarding jurisdiction, “[t]he plaintiff can
then respond with its own evidence that affirms its allegations, and it risks dismissal
of its lawsuit if it cannot present the trial court with evidence establishing personal
jurisdiction”). Nonetheless, evidence showing that a nonresident had contracts with
Texas businesses is not necessarily sufficient to establish that the nonresident’s
contacts are sufficient to allow a Texas court to exercise jurisdiction over a
nonresident when the plaintiff’s claims are unrelated to the contracts. See Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 478-79 (1985). Additionally, “[t]he
unilateral activity of those who claim some relationship with a nonresident defendant
11
cannot satisfy the requirement of contact with the forum State.” Hanson v. Denckla,
357 U.S. 235, 253 (1958).
In ruling on a special appearance, a trial court may be required to resolve
disputed issues of fact. See BMC Software, 83 S.W.3d at 794. In his brief, Simmons
argues that because the trial court failed to provide him with findings based on his
request, we cannot imply the findings required to support the trial court’s ruling. See
Tex. R. Civ. P. 296 (Omitted Findings). We disagree that the implied findings rule
does not operate in a case that involves an appeal from a ruling that is interlocutory.
Rule 28.1(c) of the Texas Rules of Appellate Procedure provides that a trial court
need not file findings of fact when the appeal concerns an interlocutory order. See
Tex. R. App. P. 28.1(c). Appeals from orders denying special appearances are
appeals from interlocutory orders. See Waterman Steamship Corp. v. Ruiz, 355
S.W.3d 387, 428 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (holding that
the trial court did not commit error by refusing a request to enter findings); Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp. 2016) (permitting appeal from
interlocutory orders that grant or deny a special appearance under Rule 120a).
Consequently, the trial court was not required to provide Simmons with written
findings to support its ruling with respect to the joint special appearance because an
order on a special appearance is interlocutory.
12
Simmons relies on Rule 296 of the Texas Rules of Civil Procedure to support
his argument that he was entitled to written findings. See Tex. R. Civ. P. 296.
However, Rule 296 gives “a party a right to findings of fact and conclusions of law
finally adjudicated after a conventional trial on the merits before the court.” Ikb
Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997).
Nevertheless, a ruling on a special appearance does not result from a conventional
trial on the merits of a parties claims, so the rules that generally require trial court’s
to make written findings after a party files a proper request for them do not apply to
rulings that are interlocutory.6 See Waterman, 355 S.W.3d at 428; see also Tex. R.
Civ. P. 296, 297.
Because this appeal involves an interlocutory order, we are required to resolve
any conflicts in the evidence by implying that the trial court resolved all disputed
facts in a manner consistent with the trial court’s ruling if the findings we imply are
6
Rules 296 and 297 of the Texas Rules of Civil Procedure are the rules that
allow parties to request written findings in cases that are tried to the bench.
Moreover, even if we were to accept Simmons’ argument that he was entitled to
written findings, Simmons failed to file a notice of past due findings, which is
required by Rule 297. See Tex. R. Civ. P. 296, 297. Simmons waived his complaint
about the trial court’s failing to provide him with written findings because he failed
to file a notice of past due filings. See Waterman Steamship Corp. v. Ruiz, 355
S.W.3d 387, 428 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).
13
supported by the record. See Retamco Operating, Inc. v. Republic Drilling Co., 278
S.W.3d 333, 337 (Tex. 2009); see also BMC Software, 83 S.W.3d at 795.
Specific Jurisdiction
First, we address whether the trial court erred in rejecting Simmons’
arguments that the trial court possessed specific jurisdiction over Simmons’ claims
against Boyd Gaming and Delta Downs. In his brief, Simmons contends that Boyd
Gaming and Delta Downs purposefully directed advertising at Texas residents such
as Horton, and that the businesses should have foreseen they would be sued in Texas
should Texas residents become intoxicated at Delta Downs and then cause a collision
after leaving there.
At the outset, we note that the allegations that are in Simmons’ pleadings do
not include a negligent promotion claim. See Triplex Commc’ns v. Riley, 900 S.W.2d
716, 720 (Tex. 1995). While Simmons’ pleadings generally allege that the business
defendants committed a tort in Texas by violating the Dram Shop Act, Mitnik’s
declaration disputed those allegations, so Simmons was required to present evidence
proving that “(1) the defendant’s contacts with [Texas was] purposeful, and (2) the
cause of action [arose] from or relate[d] to those contacts.” Am. Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
14
Simmons characterizes his claims against Delta Downs and Boyd Gaming as
Texas Dram Shop Act claims.7 According to Simmons, Boyd Gaming and Delta
Downs violated the Texas Dram Shop Act by continuing to serve Horton after their
employees knew he was intoxicated. See 20801, Inc. v. Parker, 249 S.W.3d 392, 395
7
We express no opinion on the merits of Simmons’ Dram Shop Act claims.
Nevertheless, we note that the Texas Dram Shop Act requires the plaintiff to prove
that the person who became intoxicated was sold or served alcoholic beverages by a
“provider,” which is defined in the Act as a person licensed by the State of Texas to
sell or serve alcohol. Compare Tex. Alco. Bev. Code Ann. §§ 2.01(1), 2.02(b)(1)
(West 2007), with El Chico Corp. v. Poole, 732 S.W.2d 306, 310 (Tex. 1987),
superseded by statute, Texas Dram Shop Act, as recognized in F.F.P. Operating
Partners, L.P. v. Duenez, 237 S.W.3d 680, 684-85 (Tex. 2007). The evidence before
the trial court does not directly address whether Delta Downs or Boyd Gaming were
licensed by the State of Texas to sell alcohol, but the general statements in Mitnik’s
affidavit addressing the business activities of Boyd Gaming and Delta Downs
suggests they are not. We further note that under Louisiana law, a person injured by
a patron who became intoxicated while drinking in a bar does not have a claim
against the bar for serving the person who was drinking in the bar beverages
containing alcohol. See La. R.S. § 9:2800.1(B) (LEXIS through 2017 First
Extraordinary Sess. Legis.) (providing that no licensed permit holder, their agents,
or their employees who serve intoxicating beverages to a person old enough to
lawfully purchase the beverage “shall be liable to such person or to any other person
or to the estate, successors, or survivors of either for any injury suffered off the
premises, including wrongful death and property damage, because of the
intoxication of the person to whom the intoxicating beverages were sold or served”);
Morris v. Bulldog BR, LLC, 147 So. 3d 1122 (La. App. [1st Cir.] 2014, writ denied)
(holding that the plaintiff, injured by a drunk driver who became intoxicated at a
Baton Rouge bar had no cause of action against the bar to recover for his injuries
based on Louisiana’s anti-dram shop act). Nonetheless, to resolve the issues in the
appeal, we need to decide whether Texas or Louisiana law would apply to the merits
of Simmons’ Dram Shop Act claims had the trial court denied Boyd Gaming’s and
Delta Downs’ request to dismiss them from the suit.
15
(Tex. 2008) (citing Tex. Alco. Bev. Code Ann. § 2.02(b)). Under the Texas Dram
Shop Act, a Dram Shop Act claim is “the exclusive cause of action for providing an
alcoholic beverage to a person 18 years of age or older.” Tex. Alco. Bev. Code Ann.
§ 2.03(c) (West 2007).
During the hearing on the special appearance, Simmons provided the trial
court with evidence showing that Horton drank beverages8 at Delta Downs
containing alcohol. However, there is no evidence in the record that any of the acts
of serving alcohol occurred in the State of Texas. See Tex. Alco. Bev. Code Ann. §
2.02(b)(1), (2). While Horton’s affidavits indicate that his decision to patronize Delta
Downs was influenced by the fact that he held a membership with certain benefits
through Boyd Gaming, the Texas Dram Shop Act does not require a plaintiff to prove
why an individual chose to drink at an establishment to prove a claim under the Act.
8
Simmons’ pleadings do not distinguish between Boyd Gaming and Delta
Downs regarding whose employees he claims served Horton while Horton was at
Delta Downs. Instead, Simmons alleged that Boyd Gaming and Delta Downs “freely
and unlimitedly upon Horton’s request, without any extra charge or payment, served
him unlimited alcoholic beverages to him as a business invitee and prior (sic)
preferred customer[.]” Simmons’ pleadings against Boyd Gaming relies on an alter
ego theory, as he alleged that “Delta [Downs] is a subsidiary, affiliated, related
and/or wholly and/or 80% owned, controlled, micro and macro managed subsidiary,
affiliate, related and/or of Boyd [Gaming] as to be an alter ego of Boyd.”
Nonetheless, we need not decide whether Simmons alleged sufficient facts to shift
the burden to Boyd Gaming to prove that Delta Downs was not its alter ego to resolve
the issues in the appeal.
16
Instead, the Act focuses on the decision the provider’s employees made to continue
to serve a customer beverages containing alcohol after it became apparent that the
customer was intoxicated. See Tex. Alco. Bev. Code Ann. § 2.01-.03 (West 2007).
Horton’s affidavit seems to suggest that but-for his membership at Delta
Downs, he might not have chosen to go there. However, under Texas law, a but-for
causation test is insufficient to prove that a court possesses jurisdiction over a
nonresident defendant. See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,
581 (Tex. 2007). In Moki Mac, the Texas Supreme Court stated that given the
constitutional limitations on a court’s exercise of jurisdiction over nonresidents, “a
but-for test [is] too broad and judicially unmoored to satisfy due-process concerns.”
Instead, Texas law requires that the plaintiff’s claims have a substantial connection
with the State. Id. at 585. Under the substantial-connection test, the evidence and
pleadings are required to demonstrate a “substantial connection between [the
nonresident’s purposeful actions or conduct directed at Texas] and the operative
facts of the litigation.” Id.
In this case, the evidence reflects that Delta Downs and Boyd Gaming directed
their conduct at Texas by marketing Delta Downs and Boyd Gaming in Texas. The
evidence in the hearing reflects that Delta Downs spent several million dollars
marketing its casino by using several types of advertising that it purchased in
17
Southeast Texas markets.9 However, the evidence regarding the marketing of Delta
Downs does not show that the marketing included advertising about the availability
of complimentary alcoholic beverages at Delta Downs. Simmons also relies on
contacts that Delta Downs and Boyd Gaming had with Horton through its website.
Valentina Matte, the marketing director for Delta Downs, described Delta Downs’
internet website during her deposition. She indicated that customers who desired to
do so could sign up to receive promotional material from Delta Downs by signing
up with Boyd Gaming on its website. Matte explained that Delta Downs sent
customers who agreed to receive promotional advertising e-mails, which alerted
them about upcoming events at Delta Downs. Generally, the evidence in the record
regarding the marketing of Delta Downs shows that Delta Downs was marketed in
Texas as a place where people could spend the night after gambling at the company’s
racetrack and casino. However, the evidence regarding the website is insufficient to
establish specific jurisdiction because the information in the record regarding the
9
Simmons attached all of the information he received during discovery as
exhibits to his Second Amended Original Petition. In resolving the appeal, we have
considered all of the documents Simmons attached to his pleadings because the
record does not show the trial court refused to consider them. See Tex. R. Civ. P.
120a(3) (requiring the trial court to determine special appearances “on the basis of
the pleadings, any stipulations made by and between the parties, such affidavits and
attachments as may be filed by the parties, the results of discovery processes, and
any oral testimony”).
18
website failed to establish a substantial connection between the information Horton
saw on the website and Horton’s decision to drink excessively while he was at Delta
Downs. See id. Moreover, while the evidence regarding the website shows that Boyd
Gaming and Delta Downs were doing business with Texans, it does not show that
they were doing business in Texas. See Monkton Ins. Servs. v. Ritter, 768 F.3d 429,
432 (5th Cir. 2014).
There was also evidence Horton became a B Connected Cardmember with
Delta Downs before the collision between Horton’s vehicle and Simmons’ vehicle
occurred. After becoming a B Connected Cardmember, Delta Downs sent Horton
alerts about events being promoted at Delta Downs. However, none of the
promotional material described by Horton in his affidavits is in the record, and none
of the promotional material in the record shows that Delta Downs promoted or
advertised its business in Southeast Texas on the basis that individuals holding B
Connected memberships would be served alcoholic beverages without charge.
Moreover, none of the evidence regarding the marketing of Delta Downs indicates
that the casino was marketed in Southeast Texas as a place where people would
continue to be served beverages containing alcohol after they were intoxicated. The
evidence regarding the direct promotion of Delta Downs to Horton is insufficient to
establish specific jurisdiction because the information in the record regarding the
19
direct marketing done by Boyd Gaming and Delta Downs failed to establish that a
substantial connection exists between the information Horton received through the
direct marketing efforts of the businesses and Horton’s decision to drink excessively
while at Delta Downs. Id. Even if the marketing efforts of the businesses were
purposefully directed at Horton so that they could maintain their relationship with
him, the purposeful acts of marketing a business is an insufficient contact without
more to support a court’s exercise of jurisdiction over a nonresident based on
allegedly tortious acts that occurred outside the State of Texas. See Moki Mac, 221
S.W.3d at 578-79; Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,
785 (Tex. 2005).
To establish that the trial court had jurisdiction over the nonresident
businesses, Simmons was required to demonstrate that their liability arose from or
related to the contacts Horton had with them in the State of Texas. See Moki Mac,
221 S.W.3d at 578-79. Evidence that shows merely some connection between the
contacts and the plaintiff’s cause of action is not sufficient. Id. Additionally, the
connection between the litigation, the forum, and the nonresident’s contacts with the
forum must be substantial. Id. at 584. In this case, the evidence allowed the trial
court to conclude that all of the acts of serving alcohol occurred in Louisiana. While
Horton’s affidavit states that as a B Connected Member he received solicitations
20
“from the Casino and its affiliates to come to their facilities and stay overnight,
gamble, dine, and drink alcoholic beverages,” his affidavit does not tie his decision
to drink excessively to any of the material Boyd Gaming or Delta Downs sent him
promoting the casino. Horton’s affidavits do not suggest that the advertisements and
solicitations he received directly from Boyd Gaming or Delta Downs promoted a
specific event encouraging individuals to drink irresponsibly, or that the advertising
he received from the businesses made him drink irresponsibly on the evening that
his collision with Simmons occurred. Finally, the evidence showing the benefits of
a B Connected Membership that is in the record does not show that B Connected
members are solicited by the businesses based on advertising that members will
receive complimentary alcoholic beverages while at Boyd Gaming facilities.10
Generally, advertising that promotes legal gambling is considered too
attenuated to allow a court in one state to exercise specific jurisdiction over a
nonresident on the basis of the nonresident’s advertisements. Id. at 586 (explaining
that a nonresident’s in-state advertising generally provides an insufficient basis for
10
In her deposition, Valentina Matte described the B Connected Membership
as a rewards program that allowed the member to receive information about
promotions in the facilities and that the program involved giving members
complimentary or discounted rooms for overnight stays depending on the amount
they gambled.
21
a court to exercise specific jurisdiction over a plaintiff’s personal injury claims). The
evidence before the court about Delta Downs’ advertising reflects that it was
promoting the availability at its casino of various games of chance,11 and none of the
evidence showed that Delta Downs promoted the availability of complimentary
alcoholic beverages in its advertising. Id. at 584. We conclude that the evidence
relevant to the special appearance hearing failed to demonstrate a substantial
connection between the forum, the nonresident defendants, and the operative facts
of the litigation. Id. at 588. We affirm the trial court’s conclusion that Simmons
failed to establish that the trial court could exercise specific jurisdiction over both
Boyd Gaming and Delta Downs based on his Dram Shop Act claims.
General Jurisdiction
Simmons also contends that Boyd Gaming’s and Delta Downs’ business
activities in Texas demonstrated that the nonresident corporate defendants had
sufficient continuous and systematic contacts to allow a Texas court to exercise
11
The actual advertisements that were run by Delta Downs in Southeast Texas
were not before the trial court, but a list that Delta Downs produced in discovery
shows the promotions in various months that include the month the collision between
Horton and Simmons occurred, May 2016. The promotions advertised in May 2016
were named “Tip of the Hat” and “Cowboy Up Pick and Win.” While the evidence
indicates that Delta Downs advertised on billboards in Southeast Texas in various
months that included May 2016, the summary that was provided regarding Delta
Downs’ advertising fails to reveal anything about the content of the advertisements
that appeared on billboards.
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general jurisdiction over them. With respect to general jurisdiction, the trial court
was required to decide if the nonresident defendants’ respective affiliations with the
forum state are so continuous and systematic as to render them at home in the forum
where the plaintiff filed his suit. See Searcy v. Parex Res., Inc., 496 S.W.3d 58, 67,
72 (Tex. 2016).
The evidence before the trial court showed that Delta Downs purchased goods
and services from Texas-based vendors and suppliers having a value of
approximately $6,000,000 in the twenty-nine month period before the collision
occurred, and that Delta Downs purchased approximately $2,500,000 in advertising
in Southeast Texas in the twenty-seven months before Simmons was injured. Boyd
Gaming and Delta Downs argue that the business was not shown to be related to
Simmons’ Dram Shop Act claims, and that the volume of business, even if
continuous and systematic, were not so continuous and systematic as to render them
essentially at home in Texas.
The United States Supreme Court recently considered the requirements
needed to establish that a court has general jurisdiction over a foreign corporation
that does not have its principal place of business in the forum in which it was sued
in Daimler AG v. Bauman, 134 S. Ct. 746 (2014). In Daimler, the Court explained
that, absent exceptional circumstances unlike those found here, corporate defendants
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are “at home” in only two forums—the state where the company incorporated, or the
state in which the corporation has its principal place of business. Id. at 760.
According to the Court, “[t]hese bases afford plaintiffs recourse to at least one clear
and certain forum in which a corporate defendant may be sued on any and all
claims.” Id.
Here, the relevant evidence regarding the two nonresident businesses shows
that Boyd Gaming is incorporated under the laws of the State of Nevada, and that
Boyd Racing, LLC, which operates under an assumed name as Delta Downs
Racetrack Casino and Hotel, was formed under the laws of the State of Louisiana.
Most of the statements in Mitnik’s declaration are uncontested, including her
statement that Boyd Gaming and Delta Downs are not registered to do business in
Texas, do not maintain offices or a place of business in Texas, do not have an address
or telephone number in the State of Texas, do not hold shareholder meetings in
Texas, do not pay taxes to the State of Texas, do not have bank accounts in Texas,
and do not own property in Texas. The primary evidence regarding the contacts of
the two nonresident businesses in Texas relate to the advertising that Delta Downs
purchased in Texas advertising markets, and to a vendor’s list, which shows that
Delta Downs purchased goods and services from Texas companies. Although the
evidence shows that the business activities of Boyd Gaming and of Delta Downs in
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Texas were continuous and systematic, the volume of the transactions did not require
the trial court to conclude that Boyd Gaming and Delta Downs had moved their
respective principal places of business to Texas given the statements found in
Mitnik’s affidavit about the nature of the business activities the businesses
conducted in Texas. Given evidence reflecting that Delta Downs’ principal place of
business is in Louisiana, where it operates Delta Downs, together with Mitnik’s
declaration stating that Boyd Gaming’s principal place of business is in Nevada, the
trial court did not err when it concluded that the companies were not at home in
Texas.
Although the volume of business that Boyd Gaming and Delta Downs conduct
with Texas businesses was substantial, that evidence does not show the dollar
volume of the business conducted in Texas exceeds the dollar volume of the business
that Boyd Gaming conducts in Nevada and that Delta Downs conducts in Louisiana.
In Daimler, the Court explained that “the general jurisdiction inquiry does not focus
solely on the magnitude of the defendant’s in-state contacts.” Id. at 762 n.20 (internal
citation omitted). Instead, the general jurisdiction question “calls for an appraisal of
a corporation’s activities in their entirety[.]” Id. Simmons failed to provide the trial
court with evidence showing the activities of the businesses in their entirety, and the
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evidence before the court did not show that the businesses had offices or corporate
officials located in Texas.
Based on the evidence the trial court had before it in the hearing, we agree
with the trial court that Simmons failed to demonstrate that a Texas court could
exercise specific or general jurisdiction over Simmons’ Dram Shop Act claims. We
overrule all of Simmons’ issues, and we affirm the trial court’s ruling.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on March 29, 2017
Opinion Delivered August 3, 2017
Before McKeithen, C.J., Horton and Johnson, JJ.
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