Ken Hoagland v. Bill Butcher, Kari Butcher, Butcher & Butcher, and OCTV Partners, LLC , 474 S.W.3d 802 ( 2014 )

Reversed and Remanded and Opinion filed December 4, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00170-CV
KEN HOAGLAND, Appellant
V.
BILL BUTCHER, KARI BUTCHER, BUTCHER & BUTCHER, AND OCTV
PARTNERS, LLC, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2010-58144
OPINION
In one issue, appellant Ken Hoagland challenges the trial court’s order
granting the special appearance filed by appellees Bill Butcher, Kari Butcher, and
Butcher & Butcher.1 This is the second appeal in this case. In the first appeal, the
trial court granted the appellees’ special appearance and dismissed the case. We
1
The fourth defendant, OCTV Partners, LLC, is not a party to this appeal.
concluded appellees did not negate every basis for jurisdiction, reversed the trial
court’s order dismissing the case, and remanded the case for further proceedings.
Hoagland v. Butcher, 396 S.W.3d 182 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied). Concluding the trial court may exercise personal jurisdiction over
Hoagland’s claims, we again reverse and remand.
Background
Hoagland is a resident of Harris County, Texas, and board member of
Americans for Fair Taxation (AFFT), a non-profit organization based in Houston,
Texas. Hoagland is a proponent of the FairTax Campaign, whose purpose is to
persuade the United States Congress to pass a bill replacing the current federal tax
structure with a consumption tax.
California residents William and Kari Butcher, on behalf of Butcher &
Butcher, a general partnership with its principal place of business in California,
traveled to Houston on three occasions to meet with the board of directors of
AFFT. During the first meeting, the Butchers made a presentation to solicit
business from AFFT. During the subsequent meetings, the Butchers provided
updates on the services provided, including fundraising, consulting, direct mail,
and other media related services meant to promote the FairTax Campaign.
Hoagland attended the Houston presentations as a member of the AFFT board.
OCTV Partners LLC, a California Corporation, was formed after the first
Houston meeting to provide certain advertising and fundraising services agreed
upon between AFFT and Butcher & Butcher. William Butcher served as a member
of OCTV, and Hoagland was hired as a manager. Hoagland remained in Houston
and had the authority to bind OCTV to agreements made in Houston or elsewhere.
Conditions of employment and corporate bylaws were laid out in the OCTV
2
Operating Agreement.2
Pursuant to the Operating Agreement, Hoagland was to receive as
compensation a percentage of available cash, as defined in the agreement.
Subsequently, Hoagland agreed to a modification of the terms of the Operating
Agreement to receive instead a flat monthly fee. The advertising campaign was
successful, and an infomercial starring Hoagland was posted online.
Hoagland contends that representations made by the Butchers at the AFFT
presentations in Houston led him to join OCTV as a manager. Furthermore,
Hoagland contends that William Butcher made misrepresentations via telephone
that the infomercial would result in limited success, which induced Hoagland to
alter his contract to receive the flat monthly fee. In principle, the flat fee would
have provided Hoagland with less compensation, although in practice, Hoagland
allegedly has received no compensation at all. Hoagland sued appellees for breach
of the Operating Agreement, quantum meruit, fraudulent inducement to enter and
subsequently to modify the Operating Agreement, fraud, and for an injunction to
prevent appellees from “appropriating the name, likeness and proprietary data
belonging to” Hoagland.
This is the second appeal of this special appearance. In the first instance, the
trial court granted the special appearance and dismissed for lack of jurisdiction. We
reversed, finding that appellees failed to negate all alleged grounds of jurisdiction.
Id. at 196. On remand, appellees filed an amended motion for special appearance.
The trial court granted the amended motion and again dismissed the case for lack
of jurisdiction. Hoagland’s appeal of that dismissal is currently before us.
2
OCTV and AFFT also entered into an agreement to allow OCTV to promote the
FairTax Campaign through infomercials and other types of media. The relationship between
OCTV and AFFT deteriorated under allegations of OCTV misconduct. OCTV and AFFT are
arbitrating—or have arbitrated—their dispute.
3
Discussion
In one issue, Hoagland contends (1) appellees were not permitted to file an
amended motion for special appearance following appeal; (2) the law of the case
dictates a holding that the trial court has personal jurisdiction over Hoagland’s
claims; and (3) the trial court has jurisdiction over Hoagland’s claims. Concluding
the trial court has jurisdiction, we reverse and remand the trial court’s order
granting the special appearance and dismissing the case for want of jurisdiction.
I. Amending Special Appearance After Appeal
Hoagland argues appellees were not permitted to file an amended motion for
special appearance following an appeal, asserting that to allow such an amendment
would raise concerns of judicial economy because nothing would prevent
indefinite amendments and subsequent appeals. We need not reach this issue of
first impression because we conclude, in any event, that the trial court has personal
jurisdiction over appellees’ claims, as discussed below.3
II. Law of the Case
Hoagland also argues the law of the case dictates a holding that the trial
court has jurisdiction over his claims because, as he contends, we reached that
conclusion in our previous opinion. Under the “law of the case” doctrine, questions
of law decided on appeal to a court of last resort will govern the case throughout its
subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Jacobs
3
We note that Texas Rule of Civil Procedure 120a(1) allows the amendment of a special
appearance to cure defects and courts have held the rule does not limit the timing of the
amendment, as long as it is filed prior to a general appearance. See, e.g., Dawson-Austin v.
Austin, 968 S.W.2d 319, 322 (Tex. 1998); Moore v. Pulmosan Safety Equip. Corp., 278 S.W.3d
27, 33-34 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Moreover, the supreme court has
held that filing a defective affidavit in support of a special appearance, such as happened in the
first appeal here, does not waive the special appearance. See Exito Elecs. Co. v. Trejo, 142
S.W.3d 302, 307-08 (Tex. 2004). No courts, however, have addressed whether a special
appearance may be amended following appeal.
4
v. Jacobs, Nos. 14-13-00442-CV, 14-13-00462-CV, 2014 WL 4923263, at *2
(Tex. App.—Houston [14th Dist.] Oct. 2, 2014, no pet. h.). The doctrine is based
on public policy and is intended to achieve uniformity of decision, as well as
judicial economy and efficiency. Hudson, 711 S.W.2d at 630; Jacobs, 2014 WL
4923263, at *2. The doctrine, which is aimed at putting an end to litigation, applies
to questions of law but not fact. Hudson, 711 S.W.2d at 630; Jacobs, 2014 WL
4923263, at *2. Application of this doctrine is flexible and must be left to the
discretion of the court and determined according to the particular circumstances of
the case. Jacobs, 2014 WL 4923263, at *2.
The doctrine does not necessarily apply when the issues or facts presented
on successive appeal have substantially changed. Hudson, 711 S.W.2d at 630;
Jacobs, 2014 WL 4923263, at *2. Thus, when in the second trial or proceeding, the
parties amend their pleadings, it may be that the issues or facts have sufficiently
changed so that the law of the case no longer applies. Hudson, 711 S.W.2d at 630.
Although it often requires the court to make findings of fact, determining
personal jurisdiction is nevertheless a question of law. Michiana Easy Livin’
Country, Inc. v. Holten, 168 S.W.3d 777, 790-91 (Tex. 2005). Therefore, unless
the facts have sufficiently changed, our holdings in the previous appeal regarding
personal jurisdiction are the law of this case. See Hudson, 711 S.W.2d at 630. In
the first appeal we did not reach a conclusion as to whether personal jurisdiction
existed. Hoagland, 396 S.W. at 201 (Christopher, J., dissenting on denial of reh’g).
Rather, we held that appellees’ affidavits were conclusory and thus insufficient to
negate all grounds of personal jurisdiction. Id. at 193, 196.
In this appeal, as discussed, we conclude the trial court has jurisdiction over
Hoagland’s claims. This will require an examination of each claim or group of
claims arising from the same contacts with the forum state. See Moncrief Oil Int’l
5
Inc. v. OAO Gazprom, 414 S.W.3d 142, 150-51 (Tex. 2013). As we did not
previously reach this issue, the law of the case does not apply. See Hudson, 711
S.W.2d at 630. However, because we held in the first appeal that Hoagland pleaded
sufficient jurisdictional facts and his petition has not been amended, our holding as
to that issue remains the law of the case. Hoagland, 396 S.W.3d at 191. We now
examine whether the trial court has personal jurisdiction over Hoagland’s claims.
III. Personal Jurisdiction
Texas courts may exercise personal jurisdiction over a nonresident if the
Texas long-arm statute authorizes the exercise of jurisdiction and the exercise of
jurisdiction is consistent with federal and state constitutional due-process
guarantees. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007). A plaintiff bears the initial burden of alleging facts sufficient to bring a
nonresident defendant within the terms of the Texas long-arm statute. Moncrief,
414 S.W.3d at 149. The Texas long-arm statute allows the exercise of personal
jurisdiction over a nonresident defendant who “commits a tort in whole or in part
in this state.” Tex. Civ. Prac. & Rem. Code § 17.042(2). We have already held that
Hoagland pleaded significant facts to bring appellees within the terms of the Texas
long-arm statute by committing torts in Texas. Hoagland, 396 S.W.3d at 191.
Hoagland has not since amended his petition. Thus, he met his initial burden of
alleging a cause of action sufficient to confer jurisdiction under the long arm
statute. See Moncrief, 414 S.W.3d at 149.
When the initial burden is met, the burden shifts to the nonresident
defendant to negate all potential bases for personal jurisdiction the plaintiff
pleaded. Id. Hoagland alleges that appellees committed torts—fraud and fraudulent
inducement—in Texas. Thus, appellees were required to negate these bases for
personal jurisdiction. See id. at 149-50. A nonresident defendant may negate
6
jurisdiction on either a factual or legal basis. Kelly v. Gen. Interior Const., Inc.,
301 S.W.3d 653, 659 (Tex. 2010). Factually, the defendant may present evidence
that it has insufficient contacts with Texas, effectively disproving the plaintiff’s
allegations; the plaintiff may respond with his own evidence that affirms his
allegations. Id. Legally, the defendant may show that even if the plaintiff’s alleged
facts are true, the evidence is legally insufficient to establish jurisdiction.4 Id.
A trial court’s assertion of personal jurisdiction over a defendant comports
with due process when the nonresident defendant has minimum contacts with the
forum state and asserting jurisdiction complies with traditional notions of fair play
and substantial justice. Moncrief, 414 S.W.3d at 150. A defendant establishes
minimum contacts with a forum when it purposefully avails itself of the privilege
of conducting activities within the forum state, thus invoking the benefits and
protections of its laws. Id.
A nonresident’s contacts can give rise to general or specific personal
jurisdiction. Id. Continuous and systematic contacts with a state give rise to general
jurisdiction, while specific jurisdiction exists when the cause of action arises from
or is related to purposeful activities in the state. Id. Here, Hoagland’s asserted basis
is specific jurisdiction, which focuses on the relationship between the defendants,
Texas, and the litigation to determine whether the claims arise from the Texas
contacts. Id.
When, as here, the trial court does not issue findings of fact and conclusions
of law, we imply all relevant facts necessary to support the judgment that are
4
In the first appeal, we concluded that appellees did not present sufficient evidence to
negate personal jurisdiction, in part because their affidavits in support of the special appearance
were deficient. Hoagland, 396 S.W.3d at 192-93. The amended special appearance is supported
by affidavits that contain substantially more information than those supporting the original
special appearance.
7
supported by evidence. Id. The ultimate question of whether a court has personal
jurisdiction over a nonresident defendant is a question of law we review de novo.
Id. However, if a factual dispute exists, we are called upon to review the trial
court’s resolution of the factual dispute as well. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
The trial court’s inferred factual findings are not conclusive and may be
challenged for legal and factual sufficiency when this court has a complete record
on appeal. Bryan v. Gordon, 384 S.W.3d 908, 913 (Tex. App.—Houston [14th
Dist.] 2012, no pet.). When examining a legal sufficiency challenge, we review the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could
and disregard contrary evidence unless a reasonable factfinder could not. Id. at
827. The evidence is legally sufficient if it would enable a reasonable and fair-
minded person to find the fact under review. Id. The factfinder is the sole judge of
witnesses’ credibility and the weight to give their testimony. See id. at 819.
In a factual sufficiency review, we consider and weigh all the evidence, both
supporting and contradicting the finding. See Mar. Overseas Corp. v. Ellis, 971
S.W.2d 402, 406–07 (Tex. 1998). We set aside the finding only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We may not substitute
our own judgment for that of the trier of fact or pass upon the credibility of the
witnesses. See Ellis, 971 S.W.2d at 407.
We consider three factors to determine whether a nonresident purposely
availed himself of the privilege of conducting activities in Texas: (1) the
defendant’s contacts with the forum, not the unilateral activity of another party;
8
(2) whether the contacts were purposeful rather than random, isolated or fortuitous;
and (3) whether the defendant has sought some benefit, advantage, or profit by
availing himself of the jurisdiction. Moncrief, 414 S.W.3d at 151. This analyzes the
quality and nature of the contacts, not the quantity. Id. Accordingly, a single
contact may be sufficient to establish specific jurisdiction. Id. At its core, the
purposeful availment analysis seeks to determine whether a nonresident’s conduct
and connection to a forum are such that he could reasonably anticipate being haled
into court there. Id. at 152.
Specific jurisdiction requires us to analyze jurisdictional contacts on a claim-
by-claim basis. Id. at 150. But we need not do so if all claims arise from the same
forum contacts. Id. at 150-51. Hoagland asserts that his claims all arose from the
following contacts—appellees’ presentations to AFFT in Texas, using Hoagland as
OCTV’s manager inside and outside Texas, setting up an escrow account in Texas,
and making representations to Hoagland via telephone and email while Hoagland
was in Texas. Appellees argued in their special appearance that the only contact in
support of Hoagland’s fraud and fraudulent inducement claims relating to the
modification of the Operating Agreement was a telephone call between Hoagland
and William in which William purportedly asked Hoagland to modify the
compensation to which he was entitled under the agreement.5 Appellees did not
otherwise argue that Hoagland’s claims arose from different purported contacts
with Texas. In any event, Hoagland presented evidence that appellees’
representations at the meetings in Texas induced him to enter into the Operating
Agreement, and Hoagland’s claims revolve around torts and breaches of contract
associated with that agreement. We conclude that Hoagland’s claims all arose from
5
Appellees asserted, “[Hoagland] admits that this alleged ‘fraud’ occurred via telephone.
All communications with [Hoagland], if any, would have occurred via telephone and/or email
from Bill Butcher’s offices in California.”
9
the same forum contacts. Accordingly, we need not address each claim
independently. See id. at 150-51.
A. Meetings in Texas Were Purposeful Contacts with the Forum
by Appellees, Not Unilateral Activity of Third Parties
A nonresident defendant’s contacts with the forum are not unilateral or
random and fortuitous when the defendant has created continuing obligations
between himself and residents of the forum because the defendant has availed
himself of the privilege of conducting business there and thus is entitled to the
benefits and protections of the forum’s laws. Id. at 151 (citing Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475 (1985)). Here, appellees’ contacts with Texas in
the form of conducting presentations in the state to obtain business and to report
their business activities were neither unilateral activities of Hoagland or AFFT nor
random and fortuitous. See id. at 153. Appellees agreed to attend the Texas
meetings. See id. Hoagland presented evidence that appellees made representations
during those meetings with regard to their qualifications that form the basis of
Hoagland’s claims, i.e., that because of those representations, Hoagland entered
into a business relationship with appellees, entered into the Operating Agreement
and agreed to modify it, and agreed to take part in infomercials and other media
events promoting the FairTax Campaign.6 See Max Protetch, Inc. v. Herrin, 340
S.W.3d 878, 886-87 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding
face-to-face meeting in Texas during which defendant made representations to
plaintiff were purposeful contacts that formed “a substantial portion of the core of
6
Hoagland attested:
In order to gain the confidence of myself and others, [appellees] misrepresented
their abilities and financial condition such that it was believed they would bring
enormous skill, expertise, and personal and donated monies to the effort. These
misrepresentations were made to me in my presence while each of the [appellees]
was physically located in Houston, Texas.
10
the litigation”).
Moreover, appellees’ contacts were purposeful and substantial because their
activity was aimed at getting—and keeping—extensive business from AFFT in
Texas. See Moncrief, 414 S.W.3d at 153. Appellees argue that any representations
made in Texas were directed towards AFFT and not Hoagland.7 Appellees’
subjective intent in attending the meetings, however, is irrelevant. See id. at 154.
At the jurisdiction phase, we examine business contacts, not what the parties
thought or intended, which is the role of the factfinder in assessing the merits of
the claims alleged. See id.
Here, appellees intended to and did come to Texas for two meetings, at
which they made representations regarding their qualifications. See id. Although
appellees argue they “have never travelled to Texas to confer with [Hoagland] with
respect to any business transaction involving [Hoagland] in his individual
capacity,” they do not dispute they came to Houston, attended the meetings at
which Hoagland was present, or spoke about their qualifications. As we concluded
in our previous opinion, attending the AFFT board meetings was purposeful and
not random or fortuitous because appellees intended to obtain business and keep an
ongoing business relationship with AFFT. Hoagland, 396 S.W.3d at 194.
B. Appellees Sought Benefits, Advantages, and Profits by Availing
Themselves of the Jurisdiction
Appellees benefitted from doing business in Texas. They attended three
Texas meetings with a Texas corporation and entered into a business relationship
with that corporation, out of which sprang appellees’ business relationship with
7
We note appellees have not addressed the questions we asked in the first appeal—what
statements were made in the presentations, whether they were made only as part of the
presentations to a group, or whether appellees had any conversations with Hoagland. Hoagland,
396 S.W.3d at 193.
11
Hoagland. See Moncrief, 414 S.W.3d at 154. Far from seeking to avoid Texas,
appellees sought out Texas and the protections of its laws. See id.
Appellees make a number of arguments related to the merits of Hoagland’s
claims, i.e., that appellees attended the meetings only as representatives of Butcher
& Butcher, did not make fraudulent representations to Hoagland in his personal
capacity, and did not induce Hoagland either to enter into the contract with OCTV
or subsequently to agree to modify his compensation. However, we may not
consider the merits of Hoagland’s claims at the jurisdiction stage. See id. at 156
n.15. We look merely to appellees’ business contacts with the forum to determine
whether jurisdiction exists. See id. at 154.
The evidence demonstrates that appellees’ contacts in Houston were not the
result of unilateral activity by a third party; the contacts were neither random nor
fortuitous; and appellees sought the privilege of doing business within the state of
Texas. Hoagland presented evidence that the meetings in Houston led to the
formation of the OCTV contract at the center of this dispute, an assertion appellees
did not refute. Accordingly, the evidence does not support the trial court’s implied
findings underpinning its conclusion that appellees did not purposely avail
themselves of the privilege of conducting activities in Texas. See id. at 150 (noting
trial court’s implied findings must be supported by evidence).
C. Substantial Connection between Contacts with Texas and
Operative Facts of the Litigation
For a nonresident defendant’s forum contacts to support an exercise of
specific jurisdiction, there also must be a substantial connection between those
contacts and the operative facts of the litigation. Id. at 156. Appellees argue that
the meetings in Texas do not relate to Hoagland’s claims. We disagree.
Hoagland claims he was induced by appellees’ representations about their
12
qualifications at the board meetings in Houston to enter into the OCTV Operating
Agreement and work with OCTV. His fraudulent inducement and fraud claims
thus are based in large part on what appellees communicated or failed to
communicate at those meetings.8 See Hoagland, 396 S.W.3d at 195. The operative
facts for these claims are events that occurred in Houston. See id.; see also Max
Protetch, Inc., 340 S.W.3d at 888 (holding plaintiff’s claims arose out of
communications in Houston forming “the core of the litigation”).
Hoagland’s breach of contract and quantum meruit claims relate to breaches
of the Operating Agreement that Hoagland alleges he was induced to enter into by
appellees’ representations at those meetings. See Hoagland, 396 S.W.3d at 195.
Appellees assert they are not parties to the Operating Agreement or to its
subsequent modification. We note that William signed the Operating Agreement,
but Kari did not.9 However, the argument that appellees are not parties to the
Operating Agreement is a merits issue that, even if successful, would not deprive
the court of jurisdiction. See, e.g., Dresser-Rand Group, Inc. v. Centauro Capital,
S.L.U., No. 14-13-00444-CV, 2014 WL 4851893, at *6 (Tex. App.—Houston
[14th Dist.] Sept. 25, 2014, no. pet. h.) (“Ultimate liability in tort is not a
jurisdictional fact.”); Cain v. Progressive Cnty. Mut. Ins. Co., No. 14-12-00954-
CV, 2014 WL 4638923, at *2 n.1 (Tex. App.—Houston [14th Dist.] Sept. 18,
2014, no. pet. h.) (noting defendant’s argument that plaintiff lacked standing to sue
because plaintiff was not a party to the subject contract was a merits argument and
8
Hoagland also alleges he agreed to modify the Operating Agreement as to his
compensation due to an alleged misrepresentation made to him by William Butcher via
telephone. This modification would not have been contemplated had Hoagland not entered into
the Operating Agreement, which he alleges he did as a result of the representations made by
appellees at the Houston meetings.
9
William argues that he signed the Operating Agreement in his representative capacity,
although that is not apparent from his signature block.
13
did not deprive court of jurisdiction); Saba Zi Exploration, L.P. v. Vaughn, No. 14-
13-00325-CV, 2014 WL 4552113, at *2 n.10 (Tex. App.—Houston [14th Dist.]
Sept. 16, 2014, no. pet. h.) (listing elements of breach of contract cause of action,
which include the existence of a valid contract). Taking Hoagland’s allegations as
true, which we must do at the special appearance stage, we analyze the
jurisdictional issues as if appellees were all parties to the Operating Agreement.10
See Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 284 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (“We take the allegations in the petition as true
at the special appearance stage.”).
Standing alone, entering a contract with a Texas resident does not
necessarily establish minimum contacts sufficient to support personal jurisdiction.
Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269, 281 (Tex. App.—Houston [14th
Dist.] 2009, no pet.). But it may do so when considered against a backdrop of
“prior negotiations and contemplated future consequences, along with the terms of
the contract and the parties’ actual course of dealing.” Id. (quoting Burger King,
471 U.S. at 478–79). The contract’s place of performance is an important
consideration. Id. It is reasonable to subject a nonresident defendant to personal
jurisdiction in Texas in connection with litigation arising from a contract
specifically designed to benefit from the skills of a Texas resident who performs
contractual obligations in Texas. Id.
Here, the Operating Agreement contemplates an ongoing business
relationship with a Texas resident to be performed at least in part in Texas. See id.
10
Hoagland’s breach of contract allegation presupposes the existence of a valid contract,
as an element of breach of contract. See Saba Zi Exploration, L.P., 2014 WL 4552113, at *2 n.10
(listing elements). We further note that Hoagland alleges appellees entered into an oral
agreement with him regarding his compensation, which they allegedly breached. We presume
that Hoagland’s references to the oral agreement point to the modification of the Operating
Agreement.
14
at 282. Hoagland attested, “[e]ach defendant realized that they [sic] were
empowering me, on behalf of OCTV . . . to do business in Texas and to cause
OCTV . . . to purposely avail itself of the rights and remedies of the State of
Texas.” Moreover, appellees traveled to Houston on at least three occasions in
furtherance of the parties’ business relationship. These facts demonstrate that the
contractual dispute has a substantial connection with Texas.11 See id. at 283.
Relatedly, appellees’ business relationship with Hoagland gave rise to his
participation in the infomercials and other media events that display his likeness.
Hoagland would not have sought an injunction preventing appellees’ use of those
materials had the parties not been in a business relationship that Hoagland was
purportedly induced to enter into based on the representations made by appellees in
Houston.
We conclude there is a substantial connection between appellees’ contacts
with Texas and the operative facts of the litigation and thus the pleadings and
evidence do not support the trial court’s implied findings in support of its
conclusion that it lacked jurisdiction over Hoagland’s claims.12 See Moncrief, 414
S.W.3d at 150; Max Protetch, Inc., 340 S.W.3d at 888. We next must determine
whether exercise of personal jurisdiction over the nonresident offends traditional
notions of fair play and substantial justice. See Moncrief, 414 S.W.3d at 154.
11
We note that in Moncrief, the supreme court clarified that when a plaintiff brings
multiple claims, some of the claims may have a substantial connection with Texas while some of
the claims may not. “But for causation” is not sufficient to establish a substantial connection.
Moncrief, 414 S.W.3d at 157. In light of Moncrief, it is unclear to what extent a plaintiff’s
performance under a contract is relevant to the minimum contacts inquiry and how closely a
court, sua sponte, must parse separate causes of action.
12
We conclude that the meetings in Texas established personal jurisdiction over
appellees. Thus, we need not address whether the other purported contacts with Texas gave rise
to personal jurisdiction. See Moncrief, 414 S.W.3d at 151 (noting specific jurisdiction may arise
“from even a single act”).
15
D. Exercise of Jurisdiction Consistent with Traditional Notions of
Fair Play and Substantial Justice
In making this determination, we consider (1) the burden on the defendant,
(2) the interests of the forum state in adjudicating the dispute, (3) the plaintiff’s
interest in obtaining convenient and effective relief, (4) the interstate judicial
system’s interest in obtaining the most efficient resolution of controversies, and
(5) the shared interests of the several states in furthering fundamental substantive
social policies. Id. at 155. When the nonresident defendant has purposefully
established minimum contacts with the forum state, only in rare instances will the
exercise of jurisdiction not comport with fair play and substantial justice. Id. at
154-55. The defendant bears the burden of presenting a compelling case that the
presence of some consideration would render jurisdiction unreasonable. Dodd v.
Savino, 426 S.W.3d 275, 287 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Appellees do not present a compelling case that the trial court’s exercise of
jurisdiction in this case would be unreasonable. Without any supporting authority
or evidence, appellees argue most of the witnesses and evidence are in California,
California law controls the agreements at issue, and it would be a burden on
appellees to travel to Texas to litigate the case. Appellees have not shown how the
exercise of jurisdiction in Texas would impose an unreasonable burden on them,
whereas Texas has an obvious interest in providing a forum for resolving disputes
involving its citizens, particularly disputes in which the defendant allegedly
committed torts in whole or in part in Texas. Hoagland, 396 S.W.3d at 196.
Distance alone will not ordinarily defeat jurisdiction. Moncrief, 414 S.W.3d at 155.
Given appellees’ history of attending meetings in Texas, the burden of
litigating here is not so great as to defeat jurisdiction. See id. This burden is
mitigated by Hoagland’s interest in obtaining convenient and effective relief,
16
which is particularly heightened because this case has already been appealed twice
without a resolution of the merits of Hoagland’s claims. See id. Additionally,
because the trial court already is familiar with this case, it promotes judicial
economy to litigate Hoagland’s claims in Texas. See id. Finally, no other
jurisdiction has as significant an interest as Texas does in resolving claims for torts
committed in Texas against a Texas resident. See id. at 156.
On balance, we conclude that the exercise of jurisdiction comports with the
constitutional requirements of due process. Accordingly, the trial court erred in
granting appellees’ special appearance and dismissing the case.
We reverse the trial court’s order and remand for proceedings consistent
with this opinion.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
17