EnerQuest Oil & Gas, L.L.C. v. Antero Resources Corporation ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00178-CV
___________________________
ENERQUEST OIL & GAS, L.L.C., Appellant
V.
ANTERO RESOURCES CORPORATION, Appellee
On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-290089-17
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion on Rehearing by Chief Justice Sudderth
MEMORANDUM OPINION ON REHEARING
Appellee Antero Resources Corporation filed a motion for rehearing and a
motion for rehearing en banc of our January 31, 2019 memorandum opinion. The
court’s prior memorandum opinion and judgment are withdrawn, and this
memorandum opinion and judgment are substituted. Thus, the motions for rehearing
and for rehearing en banc are denied as moot.
I. Introduction
Antero intervened in a lawsuit and brought a trade secret misappropriation
claim against Appellant EnerQuest Oil & Gas, L.L.C. EnerQuest filed a special
appearance challenging the trial court’s personal jurisdiction. After the trial court
overruled EnerQuest’s special appearance, EnerQuest filed this accelerated,
interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7). We
reverse and render.
II. Background
A. The Parties
Antero is a corporation headquartered in Colorado and is engaged in the
business of oil and gas exploration and production in West Virginia. EnerQuest is a
limited liability company, organized under the laws of Oklahoma. EnerQuest is also
in the oil and gas exploration and production business, operating oil and gas wells in
Oklahoma, Texas, Louisiana, Utah, and Arkansas, and owning nonoperating oil and
gas interests in numerous other states. Although it is registered and conducts some
2
business in Texas, EnerQuest maintains no offices or employees in Texas and is
headquartered in Oklahoma.
In November 2015, EnerQuest entered into a “Limited Liability Company
Agreement” (Formation Agreement) with Braxton Minerals-Appalachia, LLC (BMA)1
to form Braxton Minerals III, LLC (BMIII)—a limited liability company organized
under and to be governed by the laws of Delaware with its principal place of business
in Texas—in order to “acquire, own, hold, and maintain Oil and Gas Interests in the
Buy Area . . . .” The Formation Agreement defines “Buy Area” as “the States of West
Virginia, Pennsylvania, and Ohio.” The Formation Agreement, which was signed by
EnerQuest’s president Gregory Olson and by BMA’s president at the time Brad
Ashburn,2 provided that EnerQuest and BMA would be the sole members of BMIII
with EnerQuest providing up to $10 million in investment capital and owning a 75%
interest and BMA owning a 25% interest. The parties also agreed that BMA would be
BMIII’s manager and that any action or proceeding relating to the Formation
Agreement “shall be exclusively brought in any state or federal court located in
Oklahoma City, Oklahoma and . . . waive[d] any objection . . . to the laying of venue
1
BMA is a limited liability company organized under the laws of Texas.
BMA, along with Braxton Energy, LLC; Braxton Acquisitions, LLC; and
2
Braxton Minerals II, LLC (BMII), is allegedly owned and controlled by Scott Bauer.
Ashburn was formerly affiliated with Bauer’s various companies.
3
of any action or proceeding arising out of or in connection with this Agreement
brought in such courts . . . .”
For convenience and clarity, we have diagrammed the relationship between
these entities:
B. The Dispute and Lawsuit
Penn Investment Funds, LLC filed a lawsuit in the 141st District Court in
Tarrant County against seven defendants, including Braxton Energy, LLC; Braxton
Acquisitions, LLC; BMII; Bauer; and Ashburn, alleging fraud and other causes of
4
action and seeking disgorgement of approximately $225,000 in illegal profits.3 Antero,
believing that profits sought by Penn Investment had been generated in connection
with the misappropriation of Antero’s trade secrets, intervened and added, inter alia,
EnerQuest as a party. Antero sought injunctive relief and damages based on trade
secret misappropriation, conspiracy, and aiding and abetting from various parties in
the lawsuit. The only claim Antero’s “amended petition in intervention” asserts
against EnerQuest is trade secret misappropriation.4
At the crux of its lawsuit, Antero alleges that Bauer and Ashburn participated in
an unlawful scheme to obtain Antero’s confidential documents5 and trade secrets
3
According to Penn Investment, Braxton Energy, LLC violated the terms of a
$1.6 million loan and used approximately $225,000 of the funds for profit
disbursements rather than applying 100% of the loan to the acquisition of West
Virginia mineral interests as required by the terms of the loan.
4
In its brief, Antero vaguely asserts that it has amended its pleading to “clarify
its conspiracy allegations.” However, the amended petition in intervention is Antero’s
only pleading in the clerk’s record before us and it does not allege a conspiracy claim
against EnerQuest. See Atchison v. Weingarten Realty Mgmt. Co., 916 S.W.2d 74, 76 (Tex.
App.—Houston [1st Dist.] 1996, no writ) (“The general rule is that the court cannot
consider an item that is not part of the record on appeal.”); cf. Favour Leasing, LLC v.
Mulligan, No. 05-13-01000-CV, 2014 WL 4090130, at *9 (Tex. App.—Dallas Aug. 19,
2014, no pet.) (mem. op. on reh’g) (stating that when there is no testimony at the
hearing, courts decide whether the trial court erred in denying the special appearance
“from a review of the clerk’s record alone”).
5
The three documents at issue are (1) a “Critical Date Report,” (2) a “SWN
June 2016 Acquisition Defects report,” and (3) certain title opinions reflecting legal
rights and ownership in surface estates and mineral interests in land located in West
Virginia. The Critical Date Report reflects Antero’s dates of drilling and dates for first
gas and oil sales from the wells. The SWN June 2016 Acquisition Defects report
reflects due diligence conducted by Antero in its acquisition of certain West Virginia
5
concerning Antero’s oil-and-gas business opportunities in West Virginia. According
to Antero’s allegations, Bauer and Ashburn then disclosed the confidential
information to additional parties, including EnerQuest.
Antero contends that EnerQuest both actively participated in and passively
benefited from the misappropriation of the trade secrets. First, Antero alleges that
EnerQuest, through an e-mail from its president Gregory Olson, “reached out” to
Bauer in order to acquire and thereby misappropriate Antero’s trade secrets. Second,
Antero alleges that the trade secrets were utilized by BMII to purchase assets, adverse
to Antero, which were then sold to BMIII and funded by EnerQuest as contemplated
by the Formation Agreement. So when EnerQuest later removed BMA and
appointed itself as manager of BMIII, EnerQuest, by virtue of its ownership and
management of BMIII, improperly benefited from the misappropriation of Antero’s
trade secrets.
EnerQuest admits that it did receive the alleged trade secrets in February 2017
“in Oklahoma” but denies wrongdoing or unlawful activity as alleged by Antero.
Rather, EnerQuest disavows any knowledge that Bauer, the individual who
approached EnerQuest with an opportunity to invest new capital in a mineral
acquisition program in West Virginia, had obtained any trade secrets. According to
leases. And the title opinions reflect Antero’s counsel’s position concerning the
ownership of minerals and the rights to develop such minerals for land located in
West Virginia.
6
EnerQuest, it did not learn about the misappropriation accusations until February
2018, at which point EnerQuest turned over the alleged trade secrets to Antero.
According to Olson, EnerQuest neither discussed the information with anyone
outside of EnerQuest (other than Bauer and Ashburn), nor disclosed the information
to anyone outside of EnerQuest.
C. The Special Appearance Proceedings
EnerQuest filed a special appearance, see Tex. R. Civ. P. 120a, contending that
the trial court had neither general nor specific personal jurisdiction over it. In its
special appearance, EnerQuest argued that the trial court had no general jurisdiction
over it because EnerQuest was organized under the laws of Oklahoma and
maintained its principal place of business in Oklahoma. EnerQuest argued that there
was no specific jurisdiction over it because none of the actions alleged by Antero
arose from any activity by EnerQuest that was intentionally or purposefully directed at
the State of Texas. EnerQuest further argued that any damages sustained by Antero
from such disclosure or use would be realized in West Virginia, where the subject
properties were located, or in Colorado, where Antero’s corporate headquarters were
located, and not in Texas. EnerQuest supported its special appearance by attaching,
among other documents, an affidavit from Olson and the Formation Agreement.
As part of its response to EnerQuest’s special appearance, Antero sought a
continuance to conduct discovery limited to the issue of personal jurisdiction. Antero
also argued that the special appearance should be denied because EnerQuest had a
7
75% ownership interest in BMIII, a Texas entity run by Texans Bauer and Ashburn,
and because BMIII had its principal place of business in Texas. According to Antero,
Bauer and Ashburn improperly acquired Antero’s trade secrets and provided them to
EnerQuest at EnerQuest’s request. Antero also argued that when, at EnerQuest’s
request, Bauer and Ashburn improperly provided the alleged trade secrets to
EnerQuest, EnerQuest received that information from Texas and sent money to
Texas for investment. Antero further asserted that EnerQuest—via an e-mail from
Olson to Bauer—had “reached out” to Bauer who was allegedly in Texas in order to
obtain and thereby misappropriate Antero’s trade secrets. However, Antero did not
raise general jurisdiction as a basis for jurisdiction over EnerQuest but instead argued
only for specific jurisdiction over EnerQuest.
The trial court did not rule on Antero’s motion for continuance to conduct
discovery,6 and after a hearing, it overruled the special appearance. This interlocutory
appeal followed.
6
Antero conditionally argues that we should remand without rendering
judgment dismissing EnerQuest in order to permit the trial court to consider whether
more jurisdictional discovery is warranted. But Antero does not direct us to anywhere
in the record to show that the motion for continuance was ruled on nor have we
located “a clearly implied ruling by the trial court.” Seim v. Allstate Texas Lloyds, 551
S.W.3d 161, 166 (Tex. 2018); see Epicous Adventure Travel, LLC v. Tateossian, Inc., No.
08-18-00057-CV, 2019 WL 926278, at *10 (Tex. App.—El Paso Feb. 26, 2019, no pet.
h.) (relying on Seim in overruling challenge to trial court’s failure to permit
jurisdictional discovery in special appearance proceeding in part because the party
seeking such discovery never “obtained a ruling on its request for additional
discovery” and “[o]btaining a ruling, or at least a refusal to rule (supported by an
objection to the refusal to rule) is an elemental requirement for preservation of
8
III. Discussion
EnerQuest argues that the trial court erred by denying its special appearance (1)
because Antero failed to meet its initial burden of pleading allegations sufficient to
permit the trial court to exercise personal jurisdiction—general or specific—over it;
(2) because there is no legally or factually sufficient evidence that EnerQuest is
“essentially at home” in Texas that would allow the exercise of general jurisdiction
over it; and (3) because there is no legally or factually sufficient evidence to support
the exercise of specific jurisdiction over it under a contract or tort theory. Although
EnerQuest presents and briefs these as three separate issues, our primary focus is on
whether the trial court has specific jurisdiction over EnerQuest.7 See Tex. R. App. P.
47.1.
error”). Accordingly, any error in the failure to permit jurisdictional discovery has not
been preserved for our review. See Tex. R. App. P. 33.1(a)(2); Mitchell v. Bank of Am.,
N.A., 156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiffs] failed
to obtain a ruling from the trial court on the motion for continuance and therefore,
failed to preserve error.”).
7
We focus our discussion in this regard because Antero did not expressly allege
in its pleadings, special-appearance response, oral argument at the special appearance
hearing, or appellate briefing that Texas courts have general jurisdiction over
EnerQuest. And, in any event, the record before us does not meet the “high bar”
required for general jurisdiction, Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex.
2016), as EnerQuest is not incorporated in Texas, does not have a principal place of
business in Texas, and does not maintain any offices in any state other than
Oklahoma. See Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S. Ct. 746, 754 (2014)
(holding courts may have general jurisdiction over a defendant only if the defendant’s
“affiliations with the [s]tate are so continuous and systematic as to render them
essentially at home in the forum [s]tate.” (citing Goodyear Dunlop Tires Operations, S.A. v.
9
A. Personal Jurisdiction Law
Texas courts may exercise personal jurisdiction over a nonresident if “(1) the
Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of
jurisdiction is consistent with federal and state constitutional due-process guarantees.”
Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013) (quoting Moki
Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007)); see also Tex. Civ. Prac.
& Rem. Code Ann. § 17.042(1), (2) (providing that “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”). The requirements of the Texas long-
arm statute are considered satisfied if the exercise of personal jurisdiction comports
with federal due process. Twister B.V. v. Newton Research Partners, LP, 364 S.W.3d 428,
434 (Tex. App.—Dallas 2012, no pet.).
Personal jurisdiction over a nonresident defendant is consistent with due
process guarantees when the defendant has established minimum contacts with the
forum state, and the exercise of jurisdiction comports with “traditional notions of fair
play and substantial justice.” Moki Mac, 221 S.W.3d at 575 (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945)). Minimum contacts are
established when the nonresident defendant “purposefully avails itself of the privilege
Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011))). Accordingly, we need not
reach EnerQuest’s second issue regarding general jurisdiction.
10
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. 1240 (1958);
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). The
defendant’s conduct and connection with the state must be such that it could
reasonably anticipate being sued in the forum. See Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474–75, 105 S. Ct. 2174, 2183–84 (1985); Am. Type Culture Collection, Inc. v.
Coleman, 83 S.W.3d 801, 806 (Tex. 2002) (“The defendant’s activities, whether they
consist of direct acts within Texas or conduct outside Texas, must justify a conclusion
that the defendant could reasonably anticipate being called into a Texas court.”).
A defendant’s contacts with a forum can give rise to either general or specific
jurisdiction, BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795–96 (Tex.
2002), and specific jurisdiction is established if the defendant’s alleged liability arises
from or relates to the defendant’s activity conducted within the forum. See Spir Star
AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010). A court may exercise specific
jurisdiction over a nonresident defendant when two requirements are met: (1) the
defendant’s contacts with the forum state are purposeful, and (2) the cause of action
arises from or relates to those contacts. Id.; Moki Mac, 221 S.W.3d at 576.
Even if minimum contacts are present, a trial court may not exercise personal
jurisdiction over a nonresident defendant if it would offend traditional notions of fair
play and substantial justice. Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano
Cty., 480 U.S. 102, 113, 107 S. Ct. 1026, 1033 (1987). “Only in rare cases, however,
11
will the exercise of 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, Ltd. v. English China Clays, P.L.C., 815
S.W.2d 223, 231 (Tex. 1991).
B. Special Appearance Burdens of Proof
Procedurally, the parties in a special appearance challenging personal
jurisdiction bear shifting burdens of proof. Kelly v. Gen. Interior Constr., Inc., 301
S.W.3d 653, 658 (Tex. 2010). The plaintiff bears the initial burden of pleading
jurisdictional facts sufficient to bring a nonresident defendant within the provisions of
the Texas long-arm statute. Id. If the nonresident defendant challenges jurisdiction
through a special appearance, it then bears the burden of negating all bases of
personal jurisdiction alleged by the plaintiff. Id.; Moki Mac, 221 S.W.3d at 574. The
nonresident defendant “can negate jurisdiction on either a factual or legal basis.”
Kelly, 301 S.W.3d at 659. Specific jurisdiction can be negated on a legal basis if the
defendant can establish that even taking the plaintiff’s alleged facts as true, (1) “the
evidence is legally insufficient to establish jurisdiction”; (2) “the defendant’s contacts
with Texas fall short of purposeful availment”; (3) “the claims do not arise from the
contacts”; or (4) “traditional notions of fair play and substantial justice are offended
by the exercise of jurisdiction.” Id.
12
C. Standard of Review
When reviewing a trial court’s order denying a special appearance, we must
review the trial court’s factual findings for legal and factual sufficiency but review its
legal conclusions de novo because whether a court has personal jurisdiction over a
defendant is a question of law. BMC Software, 83 S.W.3d at 794. When a trial court
does not issue findings of fact and conclusions of law with its special appearance
ruling, all facts necessary to support the judgment and supported by the evidence are
implied. Id. at 795. But when the appellate record includes both the reporter’s and
clerk’s records, these implied findings are not conclusive and may be challenged for
legal and factual sufficiency. Id. When jurisdictional facts are undisputed, it is a
question of law as to whether those facts establish jurisdiction; the reviewing court
“need not consider any implied findings of fact” and will consider only the legal
question of whether the undisputed facts establish Texas jurisdiction. Old Republic
Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018).
D. Jurisdictional Facts
Antero presents the following factual allegations in support of the trial court’s
exercise of personal jurisdiction over EnerQuest:
• EnerQuest is registered to do business in Texas and does business in Texas;
• EnerQuest entered into a contract—the Formation Agreement—with a Texas
company—BMA—to be performed in Texas;
13
• EnerQuest’s Formation Agreement with BMA was the “pathway” by which
EnerQuest received and benefitted from Antero’s alleged trade secrets;
• Based on the Formation Agreement, EnerQuest intended to acquire, and
funded the acquisition of, confidential information from Texas over a period of
years;
• EnerQuest “reached out” to Texas to acquire and thereby misappropriate
confidential information.
E. Application of the Law to the Facts
1. No Jurisdiction Over EnerQuest Simply Because it is Registered to
Do Business and Conducts Some Business in Texas
Antero alleges personal jurisdiction over EnerQuest because EnerQuest is
registered to do business in Texas and conducts some business in Texas. In its
opening brief, EnerQuest acknowledged that it is registered to do business in Texas
and conducts business here.
Notwithstanding that this argument goes to a general jurisdiction theory—a
theory not advanced by Antero—rather than a specific jurisdiction theory of personal
jurisdiction, see Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 418 (Tex. App.—
Houston [1st Dist.] 2011, pet. denied) (recognizing that courts “consider registering to
do business in Texas and maintaining a registered agent in Texas in undertaking a
minimum contacts analysis” to resolve whether Texas courts can “constitutionally
exercise general jurisdiction”), the undisputed facts that EnerQuest is registered to do
business in Texas and conducts some business in Texas are not on their own enough
to establish personal jurisdiction when they have no connection to Antero’s causes of
14
action. See id. (stating that “[a]lthough we consider registering to do business in Texas
and maintaining a registered agent in Texas in undertaking a minimum contacts
analysis,” such factors “are not dispositive”); Spir Star AG, 310 S.W.3d at 873; Moki
Mac, 221 S.W.3d at 576.
Accordingly, we cannot rely on Antero’s first jurisdictional fact alone as
support for the trial court’s order overruling EnerQuest’s special appearance.
2. No Jurisdiction Arising from Contracting with Texas Residents
Antero asserts that if EnerQuest received or benefited from the alleged trade
secrets, “it will have done so through the [Formation Agreement] contract obligating
two Texas residents to provide EnerQuest with title reports and information about
properties for EnerQuest to evaluate.” The gravamen of this argument is that by
contracting with BMA, a Texas limited liability company, to form BMIII—with Bauer
and Ashburn as Texas residents who would be conducting BMIII’s business in Texas
and designating Texas as BMIII’s principal place of business—EnerQuest, as a part
owner of BMIII, is subject to personal jurisdiction in Texas.
Texas’s long-arm statute provides, “[A] nonresident does business in this state
if the nonresident: 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.” Tex. Civ. Prac. & Rem. Code Ann.
§ 17.042(1) (emphasis added). EnerQuest has entered into a contract—the Formation
Agreement—with BMA, a Texas resident, so Antero has demonstrated the first part
of subsection one—that EnerQuest has contracted with a Texas resident.
15
However, “[m]erely contracting with a Texas resident does not satisfy the
minimum contacts requirement,” Blair Commc’ns, Inc. v. SES Survey Equip. Servs, Inc., 80
S.W.3d 723, 729 (Tex. App.—Houston [1st Dist.] 2002, no pet.), nor does the mere
fact that BMA may have incidentally performed its part of the contract in Texas. See
Max Protetch, Inc. v. Herrin, 340 S.W.3d 878, 886 (Tex. 2011) (stating that mere
communications made during performance of the contract generally are “insufficient
to subject a nonresident to the forum’s jurisdiction”); Peredo v. M. Holland Co., 310
S.W.3d 468, 474–75 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[A]
nonresident does not establish minimum contacts simply by contracting with a Texas
entity and engaging in numerous communications, by telephone or otherwise, with
people in Texas concerning the contract.”). The question is whether, based on
“[p]rior negotiations, contemplated future consequences, the terms of the contract,
and the parties’ actual course of dealing,” EnerQuest purposefully established
minimum contacts within Texas. TeleVentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900,
909 (Tex. App.—Austin 2000, pet. denied).
Although BMA may have been working in Texas, the Formation Agreement is
subject to Delaware law, contains an Oklahoma forum selection clause, and created a
Delaware company for the express purpose of developing oil and gas business in
West Virginia, Pennsylvania, and Ohio. The facts in this case are similar to those in
Searcy, in which the supreme court found no specific jurisdiction when the
nonresident appeared to have “purposefully avoided” Texas through New York
16
forum selection and choice of law clauses in the contract. 496 S.W.3d at 75 (noting
that “insertion of a clause designating a foreign forum suggests that no local availment
was intended”) (quoting Michiana Easy Livin’ Country, 168 S.W.3d at 792). Here, the
Formation Agreement likewise supports that EnerQuest “purposefully avoided”
Texas because the agreement contains an Oklahoma forum selection clause and a
Delaware choice of law clause.
To the extent that Antero argues that BMA’s serving as BMIII’s manager and
maintaining a principal place of business in Texas establishes jurisdiction, such a fact
is not proper in our analysis of whether specific jurisdiction exists over EnerQuest
because it focuses on BMA’s and BMIII’s (and their principals’) relationships to
Texas, not EnerQuest’s. See Burger King, 471 U.S. at 475, 105 S. Ct. at 2184 (explaining
the unilateral activity of another party or a third person cannot amount to purposeful
availment by the specially appearing defendant); M&F Worldwide Corp. v. Pepsi-Cola
Metro. Bottling Co., Inc., 512 S.W.3d 878, 889 (Tex. 2017) (finding no specific
jurisdiction when no evidence suggested that the specially appearing, nonresident
defendants had any role or authority in selecting location where management
company or manager would perform under the settlement agreement contract and
nothing in the agreement required performance in Texas). But even if we could
consider BMA’s and BMIII’s contacts, the fact that BMA may have worked from
Texas appears entirely incidental to the Formation Agreement, which did not mandate
a location from where BMIII would be managed. See Magnolia Gas Co. v. Knight Equip.
17
& Mfg. Corp., 994 S.W.2d 684, 692 (Tex. App.—San Antonio 1998, no pet.) (holding
no minimum contacts to support personal jurisdiction when “Texas contacts were
entirely incidental and immaterial to the purpose of the contract”), abrogated on other
grounds by BMC Software Belgium, N.V., 83 S.W.3d at 794 n.1. Thus, we decline to find
specific jurisdiction over EnerQuest because BMA happened to office in Texas,
especially in light of the express contractual agreement that disputes would be
governed by Delaware laws and litigated in Oklahoma and that the contract was
entered into for purposes of oil and gas development in Ohio, Pennsylvania, and
West Virginia, not Texas.8
Therefore, the mere entering into the Formation Agreement is insufficient to
establish specific personal jurisdiction over EnerQuest.
3. No Specific Jurisdiction for Allegedly Soliciting, Funding, and
Acquiring Trade Secrets from Texas Residents
Antero alleges that Texas has personal jurisdiction over EnerQuest because
EnerQuest committed a tort in Texas when it “reached out to Texas” to solicit, fund,
8
Antero also characterizes the Formation Agreement as a “pathway” for
EnerQuest to obtain Antero’s trade secrets that BMII already possessed. That is,
BMII had already improperly obtained Antero’s trade secrets, and the Formation
Agreement even refers to “title reports” that would be provided to EnerQuest as part
of the agreement to form BMIII. Again, however, such an allegation focuses on
BMII’s rather than EnerQuest’s Texas contacts, which is improper for resolving
EnerQuest’s special appearance. See Walden v. Fiore, 571 U.S. 277, 291, 134 S. Ct.
1115, 1126 (2014) (“The proper focus of the minimum contacts inquiry in intentional-
tort cases is the relationship among the defendant, the forum, and the litigation.”); see
also Burger King, 471 U.S. at 475, 105 S. Ct. at 2184; M&F Worldwide, 512 S.W.3d at
889.
18
and acquire alleged trade secrets that were sent from Texas. See Tex. Civ. Prac. &
Rem. Code Ann. § 134A.002(3)(A). Antero points to an e-mail from Olson to Bauer
in which Olson requested that Bauer send him certain drill schedules and Bauer’s
response in which he stated that he did not have a digital copy of the schedules
because he kept them “on my person at all times, bc [sic] its [sic] one of my prize [sic]
possessions.” EnerQuest responds that: (1) the e-mail did not constitute a tort; (2)
any tort in the e-mail was not committed by EnerQuest; and (3) even if the e-mail
constituted a tort committed by EnerQuest, the tort was committed in Oklahoma and
there is no evidence to support that the e-mail was even received in Texas.
Under the Texas Uniform Trade Secrets Act, misappropriation of a trade secret
may occur by the “acquisition of a trade secret of another by a person who knows or
has reason to know that the trade secret was acquired by improper means.” Id.
As an initial matter, it is unclear how the e-mail from Olson “reaching out” and
requesting that Bauer send him the alleged trade secrets and the e-mail response from
Bauer support the notion that the tort of misappropriation of trade secrets by
acquisition was committed in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2).
There is nothing in our record to show that Olson sent an e-mail “to Texas” or that
Olson received the e-mail and acquired the alleged trade secrets in Texas. Indeed,
Olson stated in his affidavit that he received Bauer’s e-mail in Oklahoma. See Moncrief
Oil Intern., 332 S.W.3d at 153 (concluding personal jurisdiction existed over trade
19
secret misappropriation claim when out-of-state defendants “agreed to attend Texas
meetings . . . [a]nd . . . accepted Moncrief’s alleged trade secrets at those meetings”).
Moreover, we question the very premise of the contention that an e-mail can
be sent to a particular state. E-mails are not sent to a designated computer or
electronic device located at a particular place. E-mail accounts have no physical
address. They are sent into cyberspace, saved onto a server (or multiple servers), and
retrieved by the recipient wherever that person may happen to be at the given time,
whether in Texas, Tennessee, or Tibet. Arguably, to purposely direct an e-mail to a
particular state, a sender would be required to know, at the very least, where the
recipient’s server is located or where the recipient will be when he or she opens the e-
mail. The record here reveals no facts upon which we could conclude that any email
was “sent to Texas,” if indeed it would be theoretically possible to do so.
The tort cases cited by Antero to support personal jurisdiction are factually
distinguishable. For example, Nawracaj v. Genesys Software Sys., Inc., 524 S.W.3d 746,
756 (Tex. App.—Houston [14th Dist.] 2017, no pet.), is a legal malpractice case in
which the court determined that personal jurisdiction existed over an out-of-state
attorney who, while not having stepped foot in a Texas courtroom, nevertheless had
been admitted to the Texas federal district court, conceded that he was subject to the
State Bar of Texas’s authority to discipline him, negotiated a contract with local
counsel and supervised their work, and performed the majority of the legal work on
the Texas case. Schexnayder v. Daniels, 187 S.W.3d 238, 246 (Tex. App.—Texarkana
20
2006, pet. dism’d w.o.j.), is a medical malpractice case in which the court concluded
personal jurisdiction existed over an out-of-state doctor when he “was actively
practicing medicine in Texas by directing the actions of his hospital’s team while it
was in Texas.” And, Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154, 164
(Tex. App.—Fort Worth 2008, no pet.), is primarily a tortious interference case in
which our court held that the out-of-state defendant was subject to personal
jurisdiction because it had “deliberately induced its Texas customers to undertake
further activity in Texas, directed at a Texas business, in direct contravention of an
agreement between those residents and the Texas business.”
These kinds of facts are not present here. This is not a legal malpractice,
medical malpractice, or tortious interference case. EnerQuest exercised no such
control over BMA, had no related Texas customers, and did not tortiously interfere
with a Texas business’s contract.9 See Moki Mac, 221 S.W.3d at 588 (holding no
specific jurisdiction in wrongful-death case when Texas resident died on a hiking trail
in Arizona because “the relationship between the operative facts of the litigation and
[the nonresident defendant’s] promotional activities in Texas [is] simply too
attenuated to satisfy specific jurisdiction’s due-process concerns”).
9
In its motions for rehearing, Antero complains that we fail to address
Texhoma, a Texas company from which Antero’s alleged trade secrets were allegedly
stolen. Again, the contacts of a third party such as Texhoma are not germane to
resolve EnerQuest’s special appearance. See Walden, 571 U.S. at 291, 134 S. Ct. at
1126 (explaining that “it is the defendant, not . . . third parties, who must create
contacts with the forum State”).
21
And although the physical location of the out-of-state defendant is not
“dispositive” to negate personal jurisdiction, Nawracaj, 524 S.W.3d at 755, we cannot
agree with Antero that the e-mail exchange constituted “reaching into Texas” to
acquire trade secrets and to purposefully avail itself of the benefits and protections of
Texas law. See Moncrief Oil Intern., 332 S.W.3d at 158 (concluding that personal
jurisdiction existed over a trade secret misappropriation claim when nonresident
defendants had attended two meetings in Texas with a Texas corporation, at which
the nonresident defendants accepted alleged trade secrets which had been created in
Texas).
Therefore, we hold that EnerQuest’s contacts lack the substantial connection
to Texas and are too attenuated to the disputed acts allegedly committed in Texas to
establish personal jurisdiction over EnerQuest. See Am. Type Culture Collection, 83
S.W.3d at 806 (“A defendant is not subject to jurisdiction here if its Texas contacts are
. . . attenuated.”); RSM Prod. Corp. v. Glob. Petroleum Group, Ltd., 507 S.W.3d 383, 394
(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding no personal jurisdiction
over nonresident entity because to the extent it may have misappropriated trade
secrets by, inter alia, sending e-mails to Texas related to the trade secrets, “there are no
pleadings or evidence demonstrating that this act occurred, even in part, in Texas”).
Accordingly, we sustain EnerQuest’s third issue.
22
IV. Conclusion
Having concluded that EnerQuest lacked sufficient minimum contacts with
Texas to support the trial court’s exercise of personal jurisdiction over it, we reverse
the trial court’s order overruling EnerQuest’s special appearance and render judgment
dismissing EnerQuest for lack of personal jurisdiction.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: April 11, 2019
23