Furtek & Associates, L.L.C. and Richard E. Furtek v. Maxus Healthcare Partners, LLC ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00309-CV
FURTEK & ASSOCIATES, L.L.C. APPELLANTS
AND RICHARD E. FURTEK
V.
MAXUS HEALTHCARE APPELLEE
PARTNERS, LLC
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 017-275219-14
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MEMORANDUM OPINION1
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In this interlocutory appeal, we review the trial court’s denial of the special
appearance filed by appellants Furtek & Associates, L.L.C. (Furtek & Associates)
and Richard Furtek (Furtek). See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(7) (West Supp. 2015). We conclude that neither Furtek &
1
See Tex. R. App. P. 47.4.
Associates nor Furtek had sufficient minimum contacts with Texas for a Texas
court to assert specific jurisdiction over them. We also conclude that Furtek &
Associates and Furtek did not have the type of continuous and systematic
general business contacts with Texas that would support general jurisdiction.
We therefore reverse the trial court’s order denying the special appearance and
render judgment dismissing the claims against Furtek & Associates and Furtek
for lack of personal jurisdiction.
I. BACKGROUND
Furtek & Associates assists companies in the health care field with
mergers, acquisitions, and restructuring. Its principal place of business is located
in King of Prussia, Pennsylvania. Furtek and his wife are the company’s only
employees and they both reside in Pennsylvania. Furtek is a certified public
accountant licensed in Pennsylvania and is the sole owner of Furtek &
Associates. He has never been licensed as a CPA in Texas. Moreover, Furtek
& Associates does not maintain an office, a registered agent, real or personal
property, bank accounts, a mailing address, employees, records, or telephone
listings in Texas. Nor does Furtek & Associates solicit any business clients in
Texas.
In January 2012, Furtek & Associates was retained by a Fort Worth
company, Texas RHH, LLC d/b/a Renew Home Health Care (Renew), to assist it
with getting its financial records in order for a potential sale of the company. An
unrelated, third-party broker in Florida introduced Renew’s president to Furtek;
2
Furtek did not solicit Renew’s business by contacting the company in Texas.
Furtek & Associates and Renew entered into a contract dated January 31, 2012,
which provided that Furtek & Associates would assist Renew’s “personnel with
organizing [Renew’s] books and records in connection with a potential
transaction.” The initial engagement consisted of two phases:
Phase One: Organize the historical financial statements of the
business through February 28, 2012, related add back adjustments
and other significant supporting schedules.
Phase Two: If requested by the Company, we will assist with
organizing a comprehensive on-line due diligence room, preparing
responses to inquiries from prospective buyers, preparing schedules
to an acquisition agreement, and otherwise supporting a transaction
process.
The contract also covered the possibility of future work as follows:
Additionally, at your request we are available to assist you with other
matters that fall within our expertise. This may include the
preparation of pro forma financials, evaluation of offers, business
presentations, billing assistance as well as compliance and
operations assessments.
The contract contained a choice-of-law clause, providing that it would be
“governed by and shall be construed in accordance with the laws of the State of
Pennsylvania.”
In July 2012, six months after Furtek & Associates entered into the
contract with Renew, Furtek traveled to Texas to attend the 2012 National
Association for Home Care & Hospice meeting and exhibition. While in Texas,
3
Furtek visited Renew’s office in Fort Worth to meet with Misty Chaney-Brady
(Chaney-Brady), Renew’s president. During this meeting, Furtek met with
Renew’s employees, toured the office, and discussed business with Chaney-
Brady. Furtek also went out to dinner that evening with Chaney-Brady and her
husband. Furtek billed Renew six and a half hours for his time that day. He did
not bill Renew for his travel expenses to Fort Worth because his primary reason
for being in Texas was to attend the unrelated meeting and exhibition.
The following month, Furtek & Associates and Renew entered into an
amendment to their contract whereby Furtek & Associates agreed to expand its
engagement to include assisting Renew with improving Renew’s insurance billing
and collection processes, cash applications, and follow-up procedures for old,
unpaid claims. An independent contractor for Furtek & Associates, Belinda
Yanchik (Yanchik), was designated to lead this project. Yanchik traveled to
Renew’s Fort Worth office on three separate occasions between August and
October 2012 to work on the project. Furtek & Associates separately billed
Renew for Yanchik’s sixteen days of work in Fort Worth.
On November 5, 2012, Appellee Maxus Healthcare Partners, LLC
(Maxus), a Dallas company, sent Renew a letter of intent to acquire the
company. As anticipated in the original contract between Furtek & Associates
and Renew, Furtek proceeded to assist Chaney-Brady with setting up an external
due diligence website where Maxus could review relevant financial documents
and decide whether to proceed with its proposed acquisition. On December 31,
4
2012, Renew and Maxus signed an asset-purchase agreement in which Maxus
agreed to purchase Renew’s assets.
Beginning in September 2012, Furtek and Chaney-Brady exchanged
numerous emails in which they communicated about financial documents and,
later, details of the sale to Maxus. Many of the emails contained financial
documents that Furtek drafted outside of Texas or documents that Furtek
reviewed to give Chaney-Brady feedback. Furtek and Chaney-Brady spoke on
the telephone a total of nine times in November and December 2012. Furtek
also participated in several telephone calls and exchanged emails with Maxus’s
president, Angie King (King), during November and December 2012. At the time
of all of the calls and emails, Furtek was located either in Pennsylvania or
somewhere outside of Texas while Chaney-Brady and King were located in
Texas. Furtek prepared all of the financial documents for Renew while he was
either in Pennsylvania or somewhere outside of Texas.
After the sale was complete, Maxus discovered that there was an
outstanding tax lien of almost $3 million against Renew. Maxus filed suit against
Renew, Furtek & Associates, Furtek, and others,2 alleging that Renew, Furtek &
Associates, and Furtek never disclosed the existence of this lien to it and that, as
a result, it overpaid for Renew. Maxus also contended that Renew, Furtek &
Associates, and Furtek misrepresented, concealed, and conspired to give Maxus
2
The other named defendants and Maxus’s claims against them are not at
issue in this appeal.
5
misinformation about the true state of Renew’s financial status. Furtek &
Associates and Furtek filed a special appearance, arguing that the trial court did
not have personal jurisdiction over them. Following a nonevidentiary hearing, the
trial court denied Furtek & Associates and Furtek’s special appearance. Furtek &
Associates and Furtek appeal from the trial court’s denial.
II. DISCUSSION
A. STANDARD OF REVIEW
The standard of review and the burden of proof for a trial court’s ruling on a
special appearance are well-settled. We determine whether a trial court has
personal jurisdiction over a defendant under a de novo standard. BMC Software
Belgium, L.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Fish v. Tandy
Corp., 948 S.W.2d 886, 891–92 (Tex. App.—Fort Worth 1997, writ denied). The
plaintiff has the initial burden to plead sufficient allegations to bring a nonresident
defendant within the provisions of the Texas long-arm statute. Kelly v. Gen.
Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); Retamco Operating, Inc.
v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). Once the plaintiff
sufficiently pleads these jurisdictional allegations, the burden then shifts to the
defendant to negate all of the alleged bases of personal jurisdiction. Kelly,
301 S.W.3d at 658; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574
(Tex. 2007). If, as here, the trial court does not make any findings of fact and
conclusions of law when ruling on a special appearance, all facts necessary to
6
support the judgment are implied when supported by the evidence. BMC
Software, 83 S.W.3d at 795.
B. DUE PROCESS UNDER THE FOURTEENTH AMENDMENT
Texas courts can assert personal jurisdiction over a nonresident defendant
if the state’s long-arm statute authorizes it and the exercise of jurisdiction
complies with federal constitutional due-process requirements. Moncrief Oil Int’l
Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013). The Texas long-arm
statute permits Texas courts to exercise personal jurisdiction over a nonresident
defendant doing business in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042
(West 2015). A nonresident does business in this state if the nonresident
(1) contracts by mail or otherwise with a Texas resident and either party is to
perform the contract in whole or in part in this state, (2) commits a tort in whole or
in part in this state, or (3) recruits Texas residents, directly or through an
intermediary located in this state, for employment inside or outside this state. Id.
Federal due process is satisfied if the nonresident defendant has “minimum
contacts” with Texas and the exercise of personal jurisdiction over the
nonresident defendant does not offend “traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct.
154, 158 (1945).
A defendant’s contacts may give rise to two types of personal jurisdiction:
specific and general jurisdiction. When specific jurisdiction is asserted, we focus
on the relationship between the defendant, the forum, and the litigation.
7
Moki Mac, 221 S.W.3d at 576. In short, the asserted cause of action must “arise
from or relate to” the nonresident defendant’s contacts with the forum. Guardian
Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223,
228 (Tex. 1991). General jurisdiction, however, is a more demanding test to
meet than specific jurisdiction. General jurisdiction requires that the nonresident
defendant’s contacts with the state be “continuous and systematic general
business contacts.” Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S.
408, 415–16, 104 S. Ct. 1868, 1872–73 (1984). If minimum contacts are
present, whether general or specific, the nonresident defendant then bears the
burden to establish that the exercise of personal jurisdiction would offend
traditional notions of fair play and substantial justice. Prof’l Ass’n of Golf Officials
v. Phillips Campbell & Phillips, L.L.P., No. 02-12-00426-CV, 2013 WL 6869862,
at *5 (Tex. App.—Fort Worth Dec. 27, 2013, pet. denied) (mem. op.).
On appeal, Furtek & Associates and Furtek contend that a Texas trial court
does not have either general or specific personal jurisdiction over them. We
therefore address both general and specific personal jurisdiction.
III. APPLICATION
A. SUFFICIENCY OF PLEADING TO INVOKE LONG-ARM STATUE
We first determine whether Maxus met its initial burden of pleading
sufficient allegations to bring Furtek & Associates and Furtek within the
provisions of the Texas long-arm statute, without reaching the merits of those
allegations. See Hoffman v. Dandurand, 143 S.W.3d 555, 559 (Tex. App.—
8
Dallas 2004, no pet.). Maxus must have pleaded sufficient allegations to support
its contentions that Furtek & Associates and Furtek “contract[ed] by mail or
otherwise with a Texas resident and either party is to perform the contract in
whole or in part” in Texas or “commit[ed] a tort in whole or in part” in Texas.
Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1), (2).3
Maxus pleaded sufficient allegations to bring Furtek & Associates and
Furtek within our long-arm statute. In its live pleading, Maxus alleged that Furtek
& Associates is “a Pennsylvania limited liability company doing business in and
purposely directing its business activities to Texas.” It similarly pleaded that
Furtek “is an individual residing in Pennsylvania . . . [who] does business in and
purposely directs his business activities to Texas.” Maxus also alleged that
Furtek & Associates and Furtek “knowingly and intentionally entered [into] a
contract” with Renew, that Furtek traveled to Texas to meet with Chaney-Brady
to prepare Renew’s financials for the eventual sale to Maxus, and that Furtek &
Associates sent other personnel to Texas to work on-site to provide additional
financial services to Renew.
B. DUE-PROCESS ANALYSIS
Because Maxus sufficiently pleaded allegations to bring Furtek &
Associates and Furtek within the provisions of the Texas long-arm statute, the
3
The evidence is undisputed that Furtek & Associates and Furtek did not
recruit Texas residents for employment inside or outside Texas. See id.
§ 17.042(3).
9
burden then shifted to them to negate all pleaded jurisdictional bases and prove
a violation of their due-process rights. See Retamco, 278 S.W.3d at 337.
1. Specific Jurisdiction
Furtek & Associates and Furtek argue that exercising specific jurisdiction
over them would violate due process because (1) there is no evidence in the
record of sufficient contacts between them and Texas and (2) any exercise of
jurisdiction would offend traditional notions of fair play and substantial justice.
When a plaintiff asserts that a court has specific jurisdiction over a nonresident
defendant, the minimum-contacts analysis focuses on the relationship between
the defendant, the forum, and the litigation. Guardian Royal, 815 S.W.2d at 228.
Minimum contacts are sufficient when a nonresident defendant “purposefully
avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S.
235, 253, 78 S. Ct. 1228, 1240 (1958). In determining what actions constitute
purposeful availment, we consider (1) the defendant’s own actions and not the
unilateral activity of another party, (2) whether the defendant’s actions were
purposeful rather than “random, isolated, or fortuitous,” and (3) whether the
defendant sought “some benefit, advantage, or profit by ‘availing’ itself of the
jurisdiction.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct.
1473, 1478 (1984); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,
785 (Tex. 2005). The nonresident defendant’s contacts are considered as a
whole, and we focus on the quality, not the quantity, of these contacts.
10
Retamco, 278 S.W.3d at 339; Guardian Royal, 815 S.W.2d at 230 n.11. A
choice-of-law clause, such as the one contained in the contract between Furtek &
Associates and Renew, is one factor to consider in determining whether the
forum court has personal jurisdiction over the nonresident defendant. Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 482, 105 S. Ct. 2174, 2187 (1985);
Michiana, 168 S.W.3d at 792; 2007 E. Meadows, L.P. v. RCM Phoenix Partners,
L.L.C., 310 S.W.3d 199, 208 (Tex. App.—Dallas 2010, pet. denied); Citrin
Holdings, LLC v. Minnis, 305 S.W.3d 269, 282 (Tex. App.—Houston [14th Dist.]
2009, no pet.); Exchequer Fin. Group, Inc. v. Stratum Dev., Inc., 239 S.W.3d
899, 908 (Tex. App.—Dallas 2007, no pet.).
(a) Minimum contacts
In its brief, Maxus argues that the following contacts, taken together,
established specific jurisdiction over Furtek & Associates and Furtek in Texas:
 Furtek & Associates contracted with Renew, a Texas
company, to provide professional accounting services;
 Furtek knew that Renew was a Texas company;
 Renew wired a $10,000 retainer to Furtek using its Texas
bank account;
 Furtek had numerous telephone calls and emails with
Renew’s president who was located in Fort Worth;
 Furtek traveled to Fort Worth to meet with Chaney-Brady on
July 17, 2012;
11
 Furtek & Associates sent an independent contractor to work
with Renew employees on three separate occasions in the fall
of 2012;
 Furtek knew that Maxus would rely on the financial documents
that Furtek organized and prepared when deciding whether to
acquire Renew;
 Furtek actively participated in assisting Chaney-Brady with the
sale to Maxus by providing feedback on proposals, providing
financial information, and uploading it onto a due diligence
website that Maxus relied on; and
 Furtek communicated directly with King, Maxus’s president, by
email and telephone.
Furtek & Associates and Furtek contend, on the other hand, that these actions do
not rise to the level of the sufficient minimum contacts that are constitutionally
required for assertion of personal jurisdiction over them.
Texas courts have consistently held that telephone calls, emails, and mail
between a nonresident defendant and a Texas resident are insufficient minimum
contacts to establish specific jurisdiction. These communications are insufficient
to confer specific jurisdiction over nonresident defendants who use phones,
computers or mail to do business with Texas residents. E.g., Bryan v. Gordon,
384 S.W.3d 908, 916–17 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(making multiple telephone calls and sending emails to Texas resident held
insufficient for assertion of specific jurisdiction); Ahrens & DeAngeli, P.L.L.C. v.
Flinn, 318 S.W.3d 474, 484 (Tex. App.—Dallas 2010, pet. denied) (“[t]elephone
12
calls and correspondence as activities directed at the forum are generally
insufficient” to establish minimum contacts); 2007 E. Meadows, 310 S.W.3d at
205 (sending due-diligence documents and monthly rent rolls to Texas held
insufficient minimum contacts). The rationale underlying these cases is that
jurisdiction should not be determined by the fortuitous location of the Texas
resident when the nonresident defendant communicates with them. Bryan,
384 S.W.3d at 917; see also Michiana, 168 S.W.3d at 791 (“[C]hanges in
technology have made reliance on phone calls obsolete as proof of purposeful
availment.”).
We also do not believe that Furtek’s visit to Texas to attend an unrelated
meeting an exhibition constituted “purposeful availment” of the privileges of
conducting business in Texas. The evidence is undisputed that Furtek met with
Chaney-Brady only because he happened to be in the area for the conference.
Furtek did not purposefully travel to Texas solely to visit with Chaney-Brady or to
perform work that could only be done on-site. Nor did Furtek bill Renew for his
travel expenses to Texas because they would have been incurred regardless of
whether he met with Chaney-Brady. This visit was the type of “fortuitous” contact
with the forum that is not purposeful availment. See Michiana, 168 S.W.3d at
785.
With respect to Yanchik’s three trips to Texas, the evidence shows that
they were for services unrelated to the sale of Renew to Maxus. Yanchik trained
Renew employees on-site to improve the company’s collection procedures; she
13
was not involved with preparing financial documents for the eventual sale to
Maxus. While her contacts with Texas may be analyzed in a general-jurisdiction
analysis, they are irrelevant to our specific-jurisdiction inquiry because the
contacts are unrelated to the cause of action. See Burger King, 471 U.S. at 472,
105 S. Ct. at 2182 (stating litigation must “result[] from alleged injuries that ‘arise
out of or relate to’” contacts with the forum for assertion of specific jurisdiction);
Moki Mac, 221 S.W.3d at 576 (“Specific jurisdiction is established if the
defendant’s alleged liability ‘aris[es] out of or [is] related to’ an activity conducted
within the forum.” (quoting Guardian Royal, 815 S.W.2d at 228)).
Maxus’s remaining alleged contacts will not support an assertion of
specific jurisdiction over Furtek & Associates or Furtek by Texas courts. The fact
that Renew sent Furtek & Associates a check drawn on a Texas bank account is
an isolated and random contact that does not show Furtek & Associates
purposefully directed an activity to Texas to avail itself of the forum. See Myers
v. Emery, 697 S.W.2d 26, 32 (Tex. App.—Dallas 1985, no writ). That Furtek &
Associates contracted with a Texas company is also insufficient to establish
purposeful availment. See Burger King, 471 U.S. at 478, 105 S. Ct. at 2185;
Lisitsa v. Flit, 419 S.W.3d 672, 680 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied); Olympia Capital Assocs., L.P. v. Jackson, 247 S.W.3d 399, 417 (Tex.
App.—Dallas 2008, no pet.). “Due process requires that a defendant be haled
into court in a forum State based on his own affiliation with the State, not based
on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with
14
other persons affiliated with the State.” Walden v. Fiore, 134 S. Ct. 1115, 1123
(2014) (quoting Burger King, 471 U.S. at 475, 105 S. Ct. at 2183)). Finally, the
choice-of-law clause in the contract at issue supports our conclusion that Furtek
& Associates and Furtek did not intend to avail themselves of the privileges of
doing business in Texas and believed that any dispute over the contract would
be resolved under Pennsylvania law.
(b) Cases relied on by Maxus
Maxus contends that this case is analogous to a prior decision of this court
and to a Beaumont Court of Appeals case: Carlile Bancshares, Inc. v.
Armstrong, Nos. 02-14-00014-CV, 02-14-00018-CV, 2014 WL 3891658 (Tex.
App.—Fort Worth Aug. 7, 2014, no pet.) (mem. op.) and Deloitte & Touche
Netherlands Antilles & Aruba v. Ulrich, 172 S.W.3d 255 (Tex. App.—Beaumont
2005, pet. denied). In Carlile, we held that two Colorado residents had sufficient
minimum contacts with Texas for a Texas court to assert specific jurisdiction over
them. 2014 WL 3891658, at *13–16. Maxus argues this case is factually
indistinguishable, pointing to evidence in Carlile that the Colorado residents
(1) agreed to seek out the buyer in Texas, (2) compiled financial information for
use by the Texas buyer, and (3) directed emails to the Texas buyer. Id. at *13.
We find Carlile distinguishable for two reasons. First, the nonresidents in that
case specifically agreed to seek out Carlile in Texas regarding a potential
acquisition. Id. This action of the nonresident defendants themselves was
purposeful and was clear evidence that they sought a benefit or advantage by
15
availing themselves of Texas’s jurisdiction. Id. In this case, a third-party broker
located in Florida initiated the contact between Furtek and Chaney-Brady; Furtek
never sought out Renew’s business by contacting it directly. The fact that a third-
party broker brings the parties together to conduct business is a factor that
should be considered in a specific-jurisdiction analysis because it is evidence
that the nonresident defendant did not intend to purposefully avail itself of the
privilege of conducting activities within the forum state, thereby invoking the
benefits and protections of its laws. See 2007 E. Meadows, 310 S.W.3d at 205;
Olympia Capital, 247 S.W.3d at 416; 3-D Elec. Co., Inc. v. Barnett Constr. Co.,
706 S.W.2d 135, 142 (Tex. App.—Dallas 1986, writ ref’d n.r.e.). Second, one
nonresident in Carlile traveled to Texas twice to meet with the buyer to discuss
the specifics of the merger that they were negotiating. Carlile, 2014 WL
3891658, at *13. These contacts were direct and significant contacts with the
forum to finalize the merger agreement. By deliberately and purposefully
engaging in these activities in Texas, the Colorado residents in Carlile submitted
themselves to the jurisdiction of Texas courts. Id. at *14; see Michiana,
168 S.W.3d at 784. Here, Furtek & Associates and Furtek did not create a
substantial connection by personally conducting negotiations or preparing or
producing documents in Texas. Although physical presence in the state is not
required to meet the requirements of specific jurisdiction, it can “enhance a
potential defendant’s affiliation with a State and reinforce the reasonable
foreseeability of suit there.” Burger King, 471 U.S. at 476, 105 S. Ct. at 2184.
16
Similarly, we find Deloitte & Touche inapposite. In that case, auditors from
Deloitte & Touche, an accounting firm organized under the laws of the
Netherlands Antilles, traveled from the Netherlands to Texas to do substantial
portions of their audit on a Texas bank. Deloitte & Touche, 172 S.W.3d at 263.
When Deloitte & Touche entered into the contract with the Texas bank, it knew
most of its audit work would be performed in Texas and that its auditors would
spend a significant amount of time in Texas. Id. Thus, it was foreseeable to
Deloitte & Touche that it could be haled into a Texas court for actions it took in
Texas. Id. There is no such extended physical presence in Texas in the case
before us; rather, it involves a fortuitous visit by Furtek and three visits by
Yanchik for unrelated work. Additionally, the court in Deloitte & Touche noted
that there was evidence a significant portion of the business operations of both
the Texas bank and Deloitte & Touche was located in Texas. Id. Neither Furtek
& Associates nor Furtek have any operations in Texas.
In support of its position, Maxus also relies on a line of Texas cases
holding that specific jurisdiction exists if the nonresident defendant can forsee
that his actions will cause a direct injury to a Texas resident residing in Texas.
See, e.g., Weber Co., Inc. v. Back-Haul Bulk Carriers, Inc., No. 14-02-00240-CV,
2002 WL 31769418, at *3 (Tex. App.—Houston [14th Dist.] Dec. 12, 2002, no
pet.) (not designated for publication); Cartlidge v. Hernandez, 9 S.W.3d 341,
348 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Maxus contends that
because Furtek & Associates and Furtek could forsee that Maxus would be
17
injured in Texas when relying on the financial information, it is fair to subject them
to the jurisdiction of Texas courts.
We disagree. First, specific jurisdiction focuses on the relationship
between the nonresident defendant and the forum state, not on the relationship
between the nonresident defendant and the plaintiff. Walden, 134 S. Ct. at 1122.
The proper analysis focuses on the contacts the nonresident defendant himself
creates with the forum state, not the plaintiff’s actions that connect the
nonresident defendant to the forum. Id. Second, the line of cases relied upon by
Maxus were decided before the supreme court’s decision in Michiana where the
court specifically rejected the argument that Texas has specific jurisdiction if the
nonresident defendant “directed a tort” at a Texas resident. 168 S.W.3d at 788–
90. The court stated that the directed-a-tort analysis was unworkable because it
incorrectly focused on the plaintiff and requires the court to analyze the merits of
the claim at the special-appearance hearing. Id. at 790–91.
We hold that the record does not contain sufficient evidence of the
minimum contacts necessary to conclude that Furtek & Associates and Furtek
purposefully availed themselves of the privilege of conducting business within
Texas, thus invoking the benefits and protections of Texas law; thus, Furtek &
Associates and Furtek met their burden to negate specific jurisdiction. Hanson,
357 U.S. at 253, 78 S. Ct. at 1240. We sustain Furtek & Associates and Furtek’s
first issue.
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2. General Jurisdiction
In their second issue, Furtek & Associates and Furtek contend that Texas
courts cannot assert general jurisdiction over them because the contacts they
had with Texas were not continuous and systematic. Between 2010 and 2015,
Furtek traveled to Texas three additional times apart from attending the 2012
meeting and exhibition. We agree with Furtek & Associates and Furtek that
these additional trips, in combination with the other contacts discussed above,
are insufficient to establish the type of continuous and systematic business
contacts required by the Fourteenth Amendment.
General jurisdiction can be exercised over a nonresident defendant even
though a plaintiff’s cause of action does not arise out of the nonresident
defendant’s contacts with the forum if those contacts are “continuous and
systematic general business contacts” that make it fair to assert jurisdiction over
the defendant. Helicopteros, 466 U.S. at 415–16, 104 S. Ct. at 1872–73;
Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806–07 (Tex. 2002),
cert. denied, 537 U.S. 1191 (2003). This is a more demanding minimum-
contacts analysis than that performed for specific jurisdiction. Am. Type Culture,
83 S.W.3d at 807.
The record reveals that since 2010, Furtek traveled to Texas four times. In
2010 and 2012, Furtek traveled to the Dallas/Fort Worth Metroplex to attend the
annual National Association for Home Care & Hospice meeting an exhibition. On
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two other occasions, Furtek traveled to Texas to attend business meetings on
behalf of non-Texas clients.
Furtek & Associates and Furtek’s contacts with Texas are insufficient to
satisfy the requirements of the Due Process Clause of the Fourteenth
Amendment. Two meetings with non-Texas clients and attendance at two
exhibitions in Texas are not the type of general business contacts that are
continuous and systematic in nature. See Am. Type Culture, 83 S.W.3d at 809
(stating “attendance at the five Texas conferences does not support the exercise
of general jurisdiction” over nonresident defendant). The fortuitous business
meeting in Texas with Chaney-Brady is also insufficient to constitute a
continuous and systematic contact. See Helicopteros, 466 U.S. at 416–18,
104 S. Ct. at 1873–74 (concluding “one trip” to forum state by nonresident
defendant’s CEO to negotiate contract, nonresident’s acceptance of checks
drawn on Texas bank, and nonresident’s “mere purchases, even if occurring at
regular intervals,” were not continuous or systematic contacts for purposes of
general jurisdiction).
The same legal analysis applies to Yanchik’s three visits to Texas to train
Renew employees on billing and collection procedures. As an independent
contractor, Yanchik’s travel to Texas did not enhance the nature of Furtek &
Associates and Furtek’s contacts with Texas. In Helicopteros, a South American
company sent prospective pilots to Fort Worth for on-site training and to fly
helicopters back to South America. 466 U.S. at 411, 104 S. Ct. at 1870. The
20
company also sent management and maintenance personnel to Fort Worth for
technical consultation and for “plant familiarization.” Id. The Supreme Court
found these contacts to be fortuitous in nature, not the general, continuous, and
systematic business contacts with the forum state required for the assertion of
general jurisdiction. Id. at 418, 104 S. Ct. at 1874. In accordance with this
reasoning, Yanchik’s contacts would not warrant haling Furtek & Associates and
Furtek into a Texas court.
We hold that this evidence does not establish the continuous and
systematic business contacts between Furtek & Associates and Furtek and
Texas. Thus, Furtek & Associates and Furtek met their burden to negate general
jurisdiction. We sustain Furtek & Associates and Furtek’s second issue. Having
sustained both Furtek & Associates and Furtek’s first and second issues, we
need not reach the question of whether assertion of personal jurisdiction over
these nonresidents would offend traditional notions of fair play and substantial
justice. See Tex. R. App. P. 47.1; Prof’l Ass’n of Golf Officials, 2013 WL
6869862, at *8.
IV. CONCLUSION
We do not find evidence in the record to support the trial court’s conclusion
that Furtek & Associates and Furtek had sufficient contacts with Texas to
establish a basis for asserting either specific or general jurisdiction over them.
Without such evidence, it was error to deny their special appearance. We
therefore reverse the trial court’s order denying Furtek & Associates and Furtek’s
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special appearance and render judgment dismissing Maxus’s claims against
them for want of personal jurisdiction. See Tex. R. App. P. 43.2(c), 43.3.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
SUDDERTH, J., dissenting without opinion
DELIVERED: April 21, 2016
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