Summary
holding plaintiff pleaded sufficient jurisdictional facts that defendants committed tortious acts in Texas of fraud and fraudulent inducement when plaintiff alleged that defendants made representations in Texas with the intention that the plaintiff would rely on them
Summary of this case from ERC Midstream LLC v. Am. Midstream Partners, LPOpinion
No. 14–11–01074–CV.
2013-02-26
Ken HOAGLAND, Appellant v. Bill BUTCHER, Kari Butcher, Butcher & Butcher, and OCTV Partners, LLC, Appellees.
Andy Taylor, Brenham, for Appellant. William Clark Boyd, Houston, for Appellees.
Andy Taylor, Brenham, for Appellant. William Clark Boyd, Houston, for Appellees.
Panel consists of Justices FROST, CHRISTOPHER, and JAMISON.
PLURALITY OPINION
MARTHA HILL JAMISON, Justice.
In two issues, appellant Ken Hoagland challenges the trial court's order granting appellees' special appearance and dismissing the underlying case. We hold Hoagland pleaded jurisdictional facts that appellees committed tortious acts in Texas and appellees did not present evidence negating every basis for jurisdiction. We thus reverse the trial court's order and remand this case for further proceedings consistent with this opinion.
Background
Hoagland is the chairman of a political effort called the FairTax Campaign. The purpose of the FairTax Campaign is to persuade the United States Congress to pass a bill replacing the current federal income and payroll tax structures with a consumption tax. Appellees Bill and Kari Butcher, both residents of California, are the general partners of appellee Butcher & Butcher, a general partnership with its principal place of business in California.
On July 7, 2009, Bill and Kari traveled to Houston, Texas and made a presentation on behalf of Butcher & Butcher to a non-profit organization called Americans for Fair Taxation (AFFT) during its board meeting in hopes of being hired by AFFT to promote the FairTax Campaign. Hoagland was present at the meeting. AFFT thereafter hired Butcher & Butcher.
Appellee OCTV Partners, LLC, a California limited liability company, subsequently was formed to produce “political direct response television commercials” promoting the FairTax Campaign and soliciting funds for AFFT. Hoagland was one of three initial managers of OCTV, and Bill was one of five members. Hoagland, in his capacity as a manager of OCTV, along with the other managers and members of OCTV (including Bill), entered into an Operating Agreement.
Pursuant to the Operating Agreement, Hoagland was entitled to yearly distributions of “Available Cash.”
The record includes an unexecuted copy of the Operating Agreement. However, Hoagland's affidavit in support of his response to the special appearance states that the Operating Agreement was executed, and appellees do not dispute this fact. The record does not show when the Operating Agreement was executed, although it may have been during November 2009.
“Available Cash” was defined as “the amount of cash available for distribution to the Members and Managers” to be distributed as follows: first, to the members until they had received distributions totaling twice their capital contributions; second, 60 percent to the members and 40 percent to the managers until the members had received distributions totaling four times their capital contributions; and thereafter, 60 percent to the managers and 40 percent to the members.
On January 6, 2010, OCTV entered into an agreement with AFFT. Pursuant to the OCTV–AFFT Agreement, OCTV agreed to produce infomercials soliciting contributions for the FairTax Campaign. The first infomercial would be financed by OCTV. Contributions would be sent to an escrow account in Houston, Texas. Escrow funds would be used to compensate OCTV for its services and to finance the infomercials. Hoagland wrote, helped develop and promote, and appeared in a 30–minute infomercial. Hoagland alleges that, after OCTV produced the infomercial, Bill convinced Hoagland to take a $3,000 monthly flat fee in lieu of receiving distributions of Available Cash under the Operating Agreement because the infomercial campaign might not be successful.
On May 19, 2010, Bill and Kari delivered a report at another AFFT board meeting in Hoagland's presence detailing the success of OCTV's infomercial.
At its July 29, 2010 board meeting, AFFT “had a discussion on the possible violations of the fundraising agreement by Butcher & Butcher.” After the discussion, Bill and Kari joined the meeting to explain their “financial performance and contract violation issues.” After Bill and Kari's presentation, the board determined that Bill and Kari, on behalf of Butcher & Butcher, breached the OCTV–AFFT Agreement by “engineer[ing] additional extra compensation.” The board decided to terminate the OCTV–AF FT Agreement. Hoagland asserts appellees were fired by AF FT for “inappropriately draining ... monies, revenues, and other dollars generated by the infomercial ... for their own personal gain.”
The report is not in our record, but it is discussed in Hoagland's affidavit in support of his response to appellees' special appearance.
He also alleges he was not paid in accordance with the Operating Agreement or paid consulting fees that appellees owed him.
According to Hoagland, the dispute between AFFT and appellees is being resolved through arbitration.
Hoagland sued appellees on September 13, 2010, asserting claims for breach of contract, quantum meruit, fraudulent inducement, and fraud, and seeking injunctive relief to prevent appellees “from wrongfully appropriating and using [Hoagland's] likeness, name, and proprietary data in connection with a series of infomercials and other social messaging medium [sic] such as You Tube [sic] and Twitter in connection with ... the ‘FairTax Campaign.’ ” Hoagland alleged the following jurisdictional facts:
Each of the Defendants made written and oral misrepresentations of material fact to the Plaintiff (while Plaintiff was physically located in Harris County, Texas) via email and telephone conversations and in-person meetings during calendar years 2009 and 2010, with the intention that Plaintiff would rely upon such misrepresentations and take action or refrain from taking certain actions within Harris County, Texas. Furthermore, Defendants Bill Butcher and Kari Butcher made trips to Houston, Texas, as part of their effort to mislead Plaintiff, and attended meetings with Plaintiff during which fraudulent misrepresentations were made by each of the Defendants to the Plaintiff. Moreover, Defendants have sent money to Plaintiff in accordance with an enforceable oral agreement during calendar years 2009 and 2010 for services performed by Plaintiff, but eventually Defendants breached their oral agreement with Plaintiff by wrongfully refusing to continue paying money to Plaintiff for services rendered in the past and to be rendered in the future. Recently, in 2010, Defendants wrongfully appropriated the name, likeness and proprietary data belonging to the Plaintiff and refuse to stop the unauthorized use of same. The wrongful appropriation includes the public display and use of data within the State of Texas on You Tube [sic] and other public social messaging sites such as Twitter.
The trial court granted a temporary restraining order restraining appellees from “using or displaying or referencing Plaintiff's name, image, likeness, voice, photos, videos, scripts, data, or any other type of image or likeness of property of Plaintiff, on You Tube [sic], Twitter, or any other form of social networking medium.”
Appellees filed a special appearance alleging that OCTV had no contacts with Texas and Bill's, Kari's, and Butcher & Butcher's contacts with Texas were not related to the business transactions at issue in the lawsuit. The trial court granted the special appearance and dismissed the underlying case for want of jurisdiction. The trial court did not issue findings of fact or conclusions of law. Hoagland filed a motion for new trial, which the trial court denied.
Discussion
Hoagland challenges the trial court's grant of the special appearance, dismissal of the underlying case, and denial of Hoagland's motion for new trial. Whether a court has personal jurisdiction over a nonresident defendant is a question of law.
Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805–06 (Tex.2002); Meader v. IRA Res., Inc., 178 S.W.3d 338, 342 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The trial court's decision to grant or deny a special appearance is subject to de novo review on appeal, but if a factual dispute exists, an appellate court is 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); Coleman, 83 S.W.3d at 806;Meader, 178 S.W.3d at 342–43. If the trial court does not issue findings of fact, as in this case, a reviewing court should presume the trial court resolved all factual disputes in favor of its judgment. Coleman, 83 S.W.3d at 806;Meader, 178 S.W.3d at 343. Personal jurisdiction over nonresident defendants satisfies the constitutional requirements of due process when the defendant has purposefully established minimum contacts with the forum state and the exercise of jurisdiction is consistent with traditional notions of fair play and substantial justice. Marchand, 83 S.W.3d at 795;Meader, 178 S.W.3d at 343.
We do not adjudicate the merits of the parties' claims when conducting an analysis of personal jurisdiction. Bougie v. Technical Risks, Inc., No. 14–03–01222–CV, 2004 WL 2902508, at *5 (Tex.App.-Houston [14th Dist.] Dec. 16, 2004, no pet.) (mem. op.). Rather, we review the claims and the evidence regarding only the jurisdictional facts. Id.
I. Hoagland's Burden to Plead Sufficient Jurisdictional Facts
Appellees argue that Hoagland did not meet his initial burden of “alleg[ing] specific facts that rise to the level of general jurisdiction or specific jurisdiction.” A plaintiff bears the initial burden of alleging facts sufficient to bring a nonresident defendant within the terms of the Texas long-arm statute (i.e., for a tort claim, the plaintiff must allege that the defendant committed tortious acts in Texas). Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658–59 (Tex.2010); Coleman, 83 S.W.3d at 807. The nonresident defendant then assumes the burden of negating all bases of jurisdiction in the plaintiff's allegations. Kelly, 301 S.W.3d at 658;Coleman, 83 S.W.3d at 807. “Because the plaintiff defines the scope and nature of the lawsuit, the defendant's corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading.”
Kelly, 301 S.W.3d at 658.
“If the plaintiff fails to plead facts bringing the defendant within reach of the long-arm statute ..., the defendant need only prove that it does not live in Texas to negate jurisdiction.” Kelly, 301 S.W.3d at 658–59. When the pleading is wholly devoid of jurisdictional facts, the plaintiff should amend the pleading to include the necessary factual allegations, allowing jurisdiction to be based on evidence rather than allegations. Id. at 659.
The Texas long-arm statute extends jurisdiction over a nonresident who “commits a tort in whole or in part in [Texas].” Tex. Civ. Prac. & Rem.Code § 17.042(2)
; see also Kelly, 301 S.W.3d at 659. Fraud and fraudulent inducement require (1) a material misrepresentation by a speaker who knew at the time it was false or made it recklessly as a positive assertion without any knowledge of the truth with the intent that the other party rely on the misrepresentation, (2) reliance by the other party on the misrepresentation, and (3) resulting injury of the other party. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.2001). Fraud and fraudulent inducement are separate causes of action that share the same elements. See id.; see also Haase v. Glazner, 62 S.W.3d 795, 798 (Tex.2001).
The other two prongs of the long-arm statute, applicable to a nonresident who “contracts ... with a Texas resident and either party is to perform the contract in whole or in part in this state” or who “recruits Texas residents ... for employment inside or outside this state,” may also apply because Hoagland alleges he is a Texas resident who entered into a contract with appellees after they induced him in Texas to do so and that appellees “hired him to continue to act as Chairman [of the FairTax Campaign], write virtually everything related to the campaign ... as well as to appear on local and national media outlets and lead rallies and such.” SeeTex. Civ. Prac. & Rem.Code § 17.042(1), (3). However, Hoagland was required only to allege facts bringing one of his claims within the terms of the statute. See Horizon Shipbuilding v. BLyn II Holding, LLC, 324 S.W.3d 840, 847 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (holding plaintiff's allegation that defendants committed torts in Houston, Texas was sufficient to bring defendants under the long-arm statute for plaintiff's claims of various forms of fraud and negligent misrepresentation).
Hoagland alleged in his live petition, in relevant part, that each appellee “made written and oral misrepresentations of material fact to [Hoagland] ... in Harris County, Texas ... via email and telephone conversations and in-person meetings ... with the intention that [Hoagland] would rely upon such misrepresentations and take action or refrain from taking certain actions within Harris County, Texas.” (Emphasis added.) Hoagland also alleged that appellees each (1) “misrepresented their abilities and financial condition such that it was believed they would bring enormous skill, expertise, and personal and donated monies to the [FairTax Campaign] effort” and (2) fraudulently induced Hoagland into signing the Operating Agreement. Hoagland further alleged that Bill convinced Hoagland to take a $3,000 monthly fee in lieu of the fee to which he was entitled under the Operating Agreement based on Bill's representation that Hoagland would benefit more financially from taking the monthly fee than from taking the fee outlined in the Operating Agreement.
Hoagland alleged “Bill called [Hoagland] and asked him to take [the] $3,000 per month flat fee.” Specific jurisdiction is not necessarily established by evidence that a nonresident defendant made misrepresentations in a single telephone call to a Texas resident. Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269, 282 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (citing Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 791–92 (Tex.2005)). But fraudulent misrepresentations made over a series of contacts to induce a party to enter a transaction can support personal jurisdiction. Id.
We conclude Hoagland pleaded jurisdictional facts that appellees committed tortious acts—fraud and fraudulent inducement—in Texas. See Kelly, 301 S.W.3d at 659–60 (holding plaintiff was required to allege defendants committed fraudulent acts in Texas to satisfy his initial burden of pleading jurisdictional facts); see also Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840, 847 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (holding plaintiff's allegation that defendants committed torts in Texas was sufficient to bring defendants under the long-arm statute). Accordingly, Hoagland pleaded allegations sufficient to bring appellees within the terms of the Texas long-arm statute, and the burden shifted to appellees to negate every basis for jurisdiction alleged by Hoagland. See Horizon Shipbuilding, Inc., 324 S.W.3d at 847.
II. Appellees' Burden to Negate Every Basis for Jurisdiction
Hoagland argues the trial court erred in granting appellees' special appearance because appellees did not negate every ground for personal jurisdiction. We agree. A nonresident defendant may negate jurisdiction on either a factual or legal basis. Kelly, 301 S.W.3d at 659. Factually, the defendant may present evidence that it has insufficient contacts with Texas, effectively disproving the plaintiff's 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. Id.
The contacts on which Hoagland relies in relevant part to support his argument that the trial court could exercise jurisdiction over his claims are three AFFT board meetings that Bill and Kari Butcher attended in Texas and Bill's telephone call urging Hoagland to accept a reduced fee under the Operating Agreement.
Hoagland averred that appellees made presentations during the board meetings regarding, respectively, “their qualifications and past performance,” “FairTax,” and “their performance under the ‘OCTV Partners, LLC Media Content Production and Financial Agreement’ ”; appellees “made written and oral misrepresentations of material fact” to Hoagland at the meetings; and, during the phone call, Bill misrepresentedto Hoagland how successful the infomercial would be to induce Hoagland to accept a reduced fee. Appellees' special appearance was supported by affidavits executed by Bill, Kari, and the president of OCTV, Marc Kassoff. Appellees admit Bill and Kari attended the meetings but deny that Butcher & Butcher or Kari “made any representations to [Hoagland], in Texas, regarding the business transaction made the basis of the captioned case.”
Hoagland also relies on the following contacts: (1) appellees “used ... Hoagland to solicit funds for OCTV on a national basis, both outside and inside the State of Texas,” OCTV appointed Hoagland to serve as its manager “with broad powers to bind OCTV to agreements made in Houston and elsewhere,” and OCTV entered into an agreement for an escrow account to be set up in Houston; and (2) appellees made written and oral misrepresentations to Hoagland via email and telephone conversations while Hoagland was in Houston. Because we hold that appellees did not present evidence to negate jurisdiction based on torts they allegedly committed in Texas at the three board meetings and during a phone call, we need not address the significance of these other contacts. See Horizon Shipbuilding, Inc., 324 S.W.3d at 848 (citing Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 339 (Tex.2009) (“[T]he minimum-contacts analysis is focused on the quality and nature of the defendant's contacts, rather than their number.”)); Id. (“Even a single act can support jurisdiction so long as it is substantial.”).
(Emphasis added.) Bill did not deny making the phone call to Hoagland or otherwise address it. Kassoff stated “[a]ny communications with Plaintiff regarding OCTV ... that did not take place in California were conducted by telephone.” Kassoff admitted that when Hoagland “entered into contract and commenced business activity with OCTV ..., [Kassoff] was not a manager or officer of OCTV.”
It is unclear whether this statement challenges that the representations were made at all, were made in the presence of Hoagland, were misrepresentations, or had a substantial connection to the operative facts of the litigation.
Hoagland responded with his own affidavit and the affidavit of Terry Stockholm, AFFT's acting secretary. Hoagland stated that (1) 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”; (2) these misrepresentations were made to Hoagland while he was in Texas; and (3) the misrepresentations induced Hoagland into signing the Operating Agreement. In support of this statement, Hoagland attached the AFFT board meeting minutes from the July 7, 2009 board meeting which state that Bill and Kari made a presentation to the board on behalf of Butcher & Butcher “regarding their qualifications and past performance.” Hoagland was present at the meeting. Hoagland stated that appellees' misrepresentations at this meeting also induced AFFT to enter into the OCTV–AFFT agreement.
Hoagland further stated that Bill and Kari made another presentation to AFFT on May 19, 2010, with Hoagland and Stockholm in attendance. During that presentation, Bill and Kari provided a report “tout[ing] the achievements of FairTax TV.” Stockholm stated the presentation was “regarding the work [Bill, Kari, and Butcher & Butcher] had done since being employed.” Hoagland attached the report as an exhibit. Stockholm prepared the board meeting minutes, and they were attached as an exhibit.
Hoagland stated Bill and Kari made another presentation on July 29, 2010, “regarding their financial performance and certain concerns about contract violations” to the AFFT board. Hoagland did not state that he was present at this meeting; however, Stockholm was. Hoagland and Stockholm both stated that the board “determined that these [appellees] breached their agreement with AFFT, and that they had committed fraud and breach of contract by engineering additional extra compensation for which they were not entitled.” Stockholm prepared the board meeting minutes, and they were attached as an exhibit.
Appellees thereafter filed a supplemental special appearance and reply complaining that Hoagland's and Stockholm's affidavits (1) failed to show “how [Hoagland and Stockholm] obtained personal knowledge”; (2) contained legal arguments and conclusions; (3) only raised fact issues but did not conclusively prove jurisdiction; (4) contained hearsay from inadmissible documents and from AFFT board meetings; (5) made misleading statements regarding exhibits to the affidavits; and (6) are conclusory. Appellees also argued that Hoagland “did not allege or offer any proof that the alleged [f]raud was committed by ... OCTV,” Hoagland only alleged misrepresentations by Butcher & Butcher to AFFT, and even if appellees committed fraud, a single act of fraud would not confer jurisdiction on the Texas court. Because we hold that appellees did not negate jurisdiction based on appellees' purportedly committing fraud in Texas, we do not address the evidence presented by Hoagland or appellees' objections to that evidence. See Kelly, 301 S.W.3d at 659 (noting once defendant presents evidence that it has no contacts with Texas, then plaintiff can respond with its own evidence to affirm its allegations).
Affidavits offered in a special appearance “shall be made on personal knowledge [and] shall set forth specific facts as would be admissible in evidence.” Tex.R. Civ. P. 120a(3); see also Ennis v. Loiseau, 164 S.W.3d 698, 703 (Tex.App.-Austin 2005, no pet.). Special appearance affidavits must also be “direct, unmistakable, and unequivocal as to the facts sworn to.” Ennis, 164 S.W.3d at 703;see also Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 250 n. 8 (Tex.App.Houston [1st Dist.] 2004, pet. denied). A conclusory statement does not provide the underlying facts to support the conclusion. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex.App.-Houston [14th Dist.] 2012, pet. filed). Conclusory affidavits are not sufficient to raise fact issues because they are not credible or susceptible to being readily controverted. Id. (citing Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (per curiam)). Affidavit testimony that is conclusory is substantively defective and amounts to no evidence.
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004).
Objections relating to substantive defects in affidavits are not waived by the failure to obtain a ruling from the trial court. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.Houston [14th Dist.] 2003, pet. denied).
Here, appellees Kari, Bill, and Butcher & Butcher did not dispute that they attended the three board meetings or that they made the statements alleged by Hoagland. Appellees did not include any details regarding what statements were made during the presentations, whether the statements were made only as part of the presentations to a group, or whether appellees had any conversations with Hoagland, and, if so, the content of those conversations. Appellees merely stated they did not make misrepresentations to Hoagland in Texas regarding the business transaction made the basis of the captioned case. We conclude these statements are unsupported factual and legal conclusions. See Ennis, 164 S.W.3d at 703–04 (affirming trial court's exclusion of nonresident's statements that he did not have a substantial connection with Texas, plaintiffs' claims did not result from and were not related to any of affiant's activities in Texas, affiant did not have any continuing or systematic contacts with Texas, and affiant did not commit any tort in Texas); see also Wright, 137 S.W.3d at 250 n. 8 (holding nonresident's statement that he had committed no torts in Texas was properly excluded as conclusory).
Kassoff's affidavit is similarly conclusory. Kassoff stated he was not a manager or officer of OCTV when Hoagland “entered into [the] contract and commenced business activity with OCTV.” Kassoff did not provide the underlying facts to support his conclusions that OCTV “ha[d] never had any contacts with Texas” and OCTV's communications with Hoagland all took place in California or on the telephone. See Ennis, 164 S.W.3d at 703–04;see also Wright, 137 S.W.3d at 250 n. 8. We conclude appellees did not negate jurisdiction on a factual basis because they failed to present evidence that they had insufficient contacts with Texas. See Kelly, 301 S.W.3d at 659.
We next analyze whether appellees negated jurisdiction on a legal basis by showing even if Hoagland's alleged facts were true, the evidence is legally insufficient to support jurisdiction. See id. We thus address whether Hoagland's allegations, if true, established that appellees had sufficient minimum contacts with Texas to support the exercise of personal jurisdiction.
Purposeful Availment. To make this determination, we first analyze whether the nonresident defendants “purposefully availed” themselves of the privilegeof conducting business in Texas. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005). Purposeful availment is the “touchstone of jurisdictional due process.” Holten, 168 S.W.3d at 784. Three key principles govern our analysis of purposeful availment. Id. at 785. First, the court considers the defendant's own actions; it does not consider the unilateral activity of another party. Id. Second, the court considers whether the defendant's actions were purposeful rather than “random, isolated, or fortuitous.” Id. Third, the defendant must seek “some benefit, advantage, or profit by ‘availing’ itself” of the privilege of doing business in Texas. Id. The defendant's contacts must be considered as a whole and not in isolation; we focus on the nature and quality of the contacts. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 230 n. 11 (Tex.1991); Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269, 279 (Tex.App.-Houston [14th Dist.] 2009, no pet.). When there are multiple defendants, the contacts of each defendant must be analyzed individually. See Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); Minnis, 305 S.W.3d at 279.
It is significant that appellees do not deny they conducted the presentations in Texas. See Horizon Shipbuilding, Inc., 324 S.W.3d at 849. These were appellees' own actions. Attending the board meetings was purposeful and not random or fortuitous because appellees intended to obtain business and keep an ongoing business relationship with AFFT. Bill and Kari affirmed that they both “traveled to Texas on business related to [AFFT].” They both also affirmed that they “made several trips to Texas” on behalf of Butcher & Butcher “[o]ver the period of approximately one year.” Also, as Hoagland alleged, OCTV was formed to “provid[e] political advocacy and fundraising services” to promote the FairTax Campaign, which OCTV does not deny.
Thus, appellees sought to profit from the presentations. See id. We conclude appellees purposely availed themselves of the privilege of conducting business in Texas. See id. at 848–49.
OCTV argued it did not purposely avail itself of the privilege of doing business in Texas because the Operating Agreement contained a choice-of-law clause selecting California law. A choice-of-law clause is merely one factor to consider in determining whether a forum state has personal jurisdiction over a nonresident defendant, but it is not dispositive. See Minnis, 305 S.W.3d at 282.
Substantial Connection to the Causes of Action. Minimum contacts may give rise to two types of personal jurisdiction: specific jurisdiction and general jurisdiction.
Minnis, 305 S.W.3d at 279. When specific jurisdiction is asserted, as here, the court focuses on the relationship between the defendant, the forum, and the litigation. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575–76 (Tex.2007). The cause of action must “arise out of or relate to” the nonresident defendant's contacts with the forum. Guardian Royal, 815 S.W.2d at 228. Specific jurisdiction over a nonresident defendant is establishedif the defendant's activities were purposefully directed to the forum state and there is a substantial connection between the defendant's forum contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d at 585.
A single basis for personal jurisdiction is sufficient to confer jurisdiction over a defendant. Minnis, 305 S.W.3d at 279. The court need not address general jurisdiction if it finds that a defendant is subject to specific jurisdiction. Id. If the court finds specific jurisdiction over a defendant based on one cause of action, the court need not address jurisdiction as to any other causes of action. Id.
Appellees argue attending the board meetings did not “relate to” Hoagland's claims and telephone calls cannot support personal jurisdiction in Texas. Hoagland alleged fraud, fraudulent inducement, quantum meruit, and breach of contract claims. Hoagland's fraud and fraudulent inducement claims rest on what appellees communicated or failed to communicate at the board meetings in Houston and during Bill's phone call to Hoagland. See Horizon Shipbuilding, Inc., 324 S.W.3d at 850;see also In re FirstMerit Bank, 52 S.W.3d at 758 (listing elements of fraud); Haase, 62 S.W.3d at 798 (noting fraud and fraudulent inducement share same elements). These claims require that Hoagland relied on what was or was not communicated and that Hoagland suffered injury as a result. See Horizon Shipbuilding, Inc., 324 S.W.3d at 850. Thus, the operative facts for these claims are events that occurred in Houston and the content of the phone conversation between Bill and Hoagland. See id.; see Minnis, 305 S.W.3d at 282 (acknowledging a single telephone call, in conjunction with fraudulent misrepresentations made over a series of contacts, can support personal jurisdiction). Here, the alleged misrepresentations are the core of Hoagland's fraud claims and arguably of his breach of contract and quantum meruit claims because he alleges he entered into the contracts at issue in reliance on the alleged misrepresentations.
See Horizon Shipbuilding, Inc., 324 S.W.3d at 850.
Hoagland's claims all arise from the same facts, so we do not need to analyze his other claims for jurisdictional purposes.
We conclude appellees did not negate jurisdiction on a legal basis because they failed to show that Hoagland's allegations, if true, would not support jurisdiction. See Kelly, 301 S.W.3d at 659. Thus, appellees' contacts with Texas, as alleged by Hoagland, were sufficient to confer specific jurisdiction on the Texas court.
We do not address general jurisdiction. See Minnis, 305 S.W.3d at 279.
III. Traditional Notions of Fair Play and Substantial Justice
If the nonresident defendant has minimum contacts with the forum state, we must then determine whether exercise of personal jurisdiction over the nonresident offends traditional notions of fair play and substantial justice. Burger King, 471 U.S. at 476, 105 S.Ct. 2174;Horizon Shipbuilding, Inc., 324 S.W.3d at 851. 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. Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 285 (Tex.App.-Houston [14th Dist.] 2009, no pet.). 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. Angelou v. African Overseas Union, 33 S.W.3d 269, 281 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (citing Guardian Royal, 815 S.W.2d at 231).
In a special appearance, a defendant bears the burden of presenting “a compelling case that the presence of some consideration would render jurisdiction unreasonable.” Horizon Shipbuilding, Inc., 324 S.W.3d at 851 (citing Guardian Royal, 815 S.W.2d at 231). Despite this burden, appellees did not analyze this issue in their special appearance motion. They merely listed the factors a court must consider, but did not argue that exercise of jurisdiction would offend traditional notions of fair play and substantial justice. As discussed above, we have concluded appellees purposely availed themselves of the Texas forum and there is a substantial connection between appellees' contacts with Texas and Hoagland's claims. Moreover, the state of Texas has an obvious interest in providing a forum for resolving disputes involving its citizens, particularly disputes in which the defendant allegedly committed a tort in whole or in part in Texas. See id.; see also D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2002, pet. dism'd w.o.j.). We hold appellees did not show the trial court's exercise of personal jurisdiction over the nonresident would offend traditional notions of fair play and substantial justice.
Conclusion
Having concluded appellant pleaded jurisdictional facts that appellees committed tortious acts in Texas and appellees did not negate every basis for jurisdiction, we conclude 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. FROST, J., concurring.
KEM THOMPSON FROST, Justice, concurring.
In this special-appearance appeal, appellant/plaintiff Ken Hoagland challenges the trial court's order granting the special appearance filed by appellees/defendants Bill Butcher, Kari Butcher, Butcher & Butcher, and OCTV Partners, LLC (hereinafter collectively the “Butcher Parties”). For the reasons discussed below, in their special appearances, the Butcher Parties did not present evidence negating the assertion of personal jurisdiction based on specific jurisdiction. Therefore, it is proper to reverse the trial court's order and remand this case for further proceedings.
In his petition, Hoagland alleges as follows:
• The events which form the basis of this suit occurred in Harris County, Texas.
• Hoagland is a resident of Harris County, Texas.
• Each of the Butcher Parties made written and oral misrepresentations of material fact to Hoagland in email, telephone conversations, and in-person meetings while Hoagland was in Harris County, Texas.
• Bill and Kari Butcher made trips to Houston, Texas, as part of their effort to mislead Hoagland, and attended meetings with Hoagland during which fraudulent misrepresentations were made by each of the Butcher Parties to Hoagland.
• The Butcher Parties have sent money to Hoagland in accordance with an enforceable oral agreement during calendar years 2009 and 2010 for services performed by Hoagland, but eventually the Butcher Parties breached their oral agreement with Hoagland by wrongfully refusing to continue paying money to Hoagland for services renderedin the past and to be rendered in the future.
• In 2010, the Butcher Parties wrongfully appropriated Hoagland's name, likeness, and proprietary data, and they refuse to stop the unauthorized use of the same. The wrongful appropriation includes the public display and use of data within the State of Texas on public social messaging sites.
• The Butcher Parties hired Hoagland to continue to act as Chairman of the FairTax Campaign, to write virtually everything related to the campaign, as well as to appear on local and national media outlets and to lead rallies.
Hoagland alleges breach of contract as his primary claim, and he also alleges quantum meruit, fraudulent inducement, fraud, and wrongful appropriation of Hoagland's name and likeness. Though Hoagland makes various allegations and asserts a variety of claims against the Butcher Parties, the gravamen of Hoagland's lawsuit is that he performed various services in support of the FairTax Campaign under contract with the Butcher Parties, and the Butcher Parties have breached their contract by not paying Hoagland for these services.
According to his petition, Hoagland performed these services in Texas, and the Butcher Parties sent money to Hoagland under an enforceable oral agreement for services performed by Hoagland. Contracting with a Texas resident and sending payments to Texas under a contract do not alone support specific jurisdiction; however, a defendant may be subject to personal jurisdiction under a specific-jurisdiction analysis if the defendant enters into a contract that has a substantial connection with Texas, and thereby purposefully directs his activities towards Texas. See Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338–41 (Tex.2009); Zac Smith & Co. v. Otis Elevator, Inc., 734 S.W.2d 662, 664–66 (Tex.1987); Nance Int'l, Inc. v. OceanMaster Engineering PTE, Ltd., No. 01–11–00664–CV, 2012 WL 5381224, at *5–8 (Nov. 1, 2012, no pet.) (mem. op.); Intercarga, S.A. v. Fritz Companies, Inc., No. 14–02–00297–CV, 2003 WL 21402583, at *7–8 (June 19, 2003, no pet.) (mem. op.).
In conducting the personal-jurisdiction analysis in the case under review, this court does not adjudicate the merits of Hoagland's claims. See Bougie v. Technical Risks, Inc., No. 14–03–01222–CV, 2004 WL 2902508, at *5 (Tex.App.-Houston [14th Dist.] Dec. 16, 2004, no pet.) (mem. op.).
In support of their special appearances, the Butcher Parties submitted affidavits from William Butcher, Kari Butcher, and Marc Kassoff. The only evidence that arguably speaks to the location at which Hoagland performed his services is the following statement contained in the affidavits of both Kari Butcher and Marc Kassoff: “To the best of my knowledge and belief, all of the transactions regarding OCTV Partners, LLC, have taken place in California.” Such statements lack probative value and are legally insufficient, even absent objection by Hoagland in the trial court.
See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex.2008); Deacetis v. Wiseman, No. 14–09–00308–CV, 2010 WL 2731040, at *3 n. 2 (Tex.App.-Houston [14th Dist.] July 13, 2010, no pet.) (mem. op.). Thus, the Butcher Parties submitted no competent evidence contradicting Hoagland's allegation that he performed the services in question in Texas.
The two cases cited in the dissenting opinion do not hold to the contrary. See Grupo TMM, S.A.B. v. Perez, 327 S.W.3d 357, 361 (Tex.App.-Houston [14th Dist.] 2010, pet. denied); McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.–Houston [14th Dist.] 2003, pet. denied).
In addition, the Butcher Parties submitted no legally sufficient evidence contradicting Hoagland's allegation that the Butcher Parties entered into an oral agreement for the performance of services by Hoagland. None of the affidavits contain statements contradicting this allegation as to Bill Butcher, Kari Butcher,
or OCTV Partners, LLC. Bill Butcher's affidavit contains a denial that Butcher & Butcher entered into any contracts with Hoagland regarding the transactions made the basis of this suit, but this statement is conclusory and therefore legally insufficient. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997); B.Z.B., Inc. v. Clark, No. 14–11–00056–CV, 2012 WL 353783, at *3 (Tex. App.-Houston [14th Dist.] Feb. 2, 2012, no pet.) (mem. op.).
In her affidavit, Kari Butcher states that she “did not sign any contracts with [Hoagland] regarding the transactions made the basis of the captioned case in Texas.” Even if this statement were not conclusory, it does not address oral contracts.
The affidavits also contain (1) statements denying that some of the Butcher Parties made representations to Hoagland in Texas regarding the business transaction made the basis of this case, and (2) statements denying that some of the Butcher Parties made any payments to Hoagland in Texas regarding that transaction. These statements are conclusory and therefore legally insufficient. See Wadewitz, 951 S.W.2d at 466;B.Z.B., Inc., 2012 WL 353783, at *3.
The Butcher Parties submitted three short affidavits, containing various statements that are legally insufficient. The portions of these affidavits that are legally sufficient do not suffice to satisfy the Butcher Parties' burden of negating the assertion of personal jurisdiction based on specific jurisdiction. See D.H. Blair Investment Banking Corp., 97 S.W.3d 269, 277–79 (Tex.App.-Houston [14th Dist.] 2002, pet. dism'd w.o.j.). Thus, the trial court erred in granting the Butcher Parties' special appearances, and the proper course is to reverse the trial court's order and remand for further proceedings.
For the foregoing reasons, I respectfully concur in the court's judgment. CHRISTOPHER, J., dissenting.
TRACY CHRISTOPHER, Justice, dissenting.
The plurality opinion concludes that the Butchers and OCTV failed to properly negate every ground for personal jurisdiction alleged in Hoagland's petition and that, therefore, the burden did not shift to Hoagland to prove his jurisdictional facts. Plurality Opinion at 9–12. It, as well as the concurring opinion, rejects all of appellees' affidavits as conclusory. I respectfully disagree. that we should reject the OCTV affidavit because it did not provide the underlying facts to support its conclusions.
Second, I do not agree that the Butchers' affidavits are so conclusory that they did not shift the burden to Hoagland to prove his jurisdictional facts. The plurality opinion concludes Hoagland's pleading—that each appellee made written and oral misrepresentations of material fact to Hoagland in Harris County—is a sufficient pleading of jurisdictional facts,
yet it rejects as conclusory the Butchers' statements that they did not make any representations to Hoagland in Texas regarding the business transaction made the basis of the captioned case.
Unlike Hoagland, appellees argued at the trial court and in their brief on appeal that Hoagland's jurisdictional allegations are conclusory.
Hoagland's pleading contains the following jurisdictional allegations:
Hoagland made other jurisdictional allegations that the plurality correctly has discounted in its opinion.
Each of the Defendants made written and oral misrepresentations of material fact to the Plaintiff (while Plaintiff was physically located in Harris County, Texas) via email and telephone conversations and in-person meetings during calendar years 2009 and 2010, with the intention that Plaintiff would rely upon such misrepresentations and take action or refrain from taking certain actions within Harris County, Texas. Furthermore, Defendants Bill Butcher and Kari Butcher made trips to Houston, Texas, as part of their effort to mislead Plaintiff, and attended meetings with Plaintiff during which fraudulent misrepresentations were made by each of the Defendants to the Plaintiff.
The plurality opinion recites other statements from Hoagland's pleading,
but these were not listed as jurisdictional facts, nor does the pleading state that these representations were made at the “in-person” meetings in Houston. Hoagland did not even allege that the phone calls to Hoagland were made while he was in Houston.
The plurality opinion also contends that these are jurisdictional facts: “Hoagland also alleged that appellees each (1) ‘misrepresented their abilities and financial condition such that it was believed they would bring enormous skill, expertise, and personal and donated monies to the [FairTax Campaign] effort’ and (2) fraudulently induced Hoagland into signing the Operating Agreement. Hoagland further alleged that Bill convinced Hoagland to take a $3,000 monthly fee in lieu of the fee to which he was entitled under the Operating Agreement based on Bill's representation that Hoagland would financially benefit more from taking the monthly fee than from taking the fee outlined in the Operating Agreement.” Plurality Opinion at 190–91.
In short, the jurisdictional allegations are generic, and the generic rebuttal by the Butchers should be sufficient to negate the allegations and require Hoagland to prove his jurisdictional facts.
In the age of cell phones, a phone call can be placed anywhere and answered anywhere.
The Butchers' affidavits acknowledged that they traveled to Texas on business related to AFFT, but denied that the Texas visits related to any personal transaction with Hoagland. Bill Butcher stated the following:
I am a resident of California. At no material time have I been a resident of Texas. I do not maintain a place of business in Texas. I have traveled to Texas on business related to Americans For Fair Taxation (AFFT), an organization which is not a party to this lawsuit. Over the period of approximately one year I made several trips to Texas in my capacity as President and CEO of Corporate Partner in Butcher and Butcher, a California General Partnership of Corporations. Butcher and Butcher does not maintain a place of business in Texas. Butcher and Butcher does not otherwise transact business in Texas. Butcher and Butcher never made any representations to Plaintiff, in Texas, regarding the business transaction made the basis of the captioned case. Butcher and Butcher did not enter into any contracts with Plaintiff regarding the transactions made the basis of the captioned case in Texas. It never made any payments to Plaintiff in Texas regarding the transaction made the basis of the captioned case. It never engaged in any business activities with Plaintiff, in Texas, regarding the transactions made the basis of Plaintiff's case.
Kari Butcher made the following statements:
I am a resident of California. At the present time, I am temporarily in the State of New York, but I have not yet become a resident of New York, although I intend to change my residence to New York in 2011. At no material time have I been a resident of Texas. I do not maintain a place of business in Texas. I have traveled to Texas on business related to Americans for Fair Taxation (AFFT), an organization which is not a party to this lawsuit. Over the period of approximately one year I made several trips to Texas in my capacity as President and CEO of Corporate Partner in Butcher and Butcher, a California General Partnership of Corporations. I do not otherwise transact business in Texas. I am familiar with the business transactions regarding OCTV Partners, LLC, that are the basis of Plaintiff's cause of action. I have never travelled to Texas to confer with Plaintiff with respect to OCTV Partners, LLC. I have never made any representations to Plaintiff, in Texas, regarding the business transaction made the basis of the captioned case. I did not sign any contracts with Plaintiff regarding the transactions made the basis of the captioned case in Texas. I have never made any payments to Plaintiff in Texas regarding the transaction made the basis of the captioned case. I have never engaged in any business activities with Plaintiff, in Texas, regarding the transactions made the basis of Plaintiff's case.
I disagree with the plurality that these affidavits are conclusory. Both affidavits acknowledged the visits to Texas, but contended that the Texas visits were related to AFFT business and not to the personal complaints that Hoagland is making. I would hold that the Butchers' affidavits shifted the burden to Hoagland to prove his jurisdictional facts. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.2010).
Third, I disagree with the plurality's analysis of the OCTV affidavit. The plurality also concludes that OCTV failed to rebut Hoagland's allegations because Marc Kassoff's affidavit stated that he was not a manager or officer of OCTV when Hoagland entered into the contract with OCTV—an allegation that Kassoff lacked personal knowledge. This is a defect in the form of the affidavit. Hoagland should have objected to the affidavit in the trial court. Because he did not, Hoagland waived this issue on appeal. Grupo TMM, S.A.B. v. Perez, 327 S.W.3d 357, 361 (Tex.App.-Houston [14th Dist.] 2010, pet. denied); McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (explaining that objections to form, such as hearsay, speculation, competence, are waived by a failure to object). Of course, as noted above, Hoagland did not raise this issue, either at the trial court or on appeal; only the plurality has. The plurality then holds that Kassoff did not provide the underlying facts to support his conclusions—but Kassoff did not make conclusions. He stated facts—“OCTV's communications with Hoagland all took place in California or on the telephone.” This is sufficient to rebut Hoagland's jurisdictional allegations.
The affidavits of the Butchers and of Kassoff are sufficient to shift the burden to Hoagland to prove his jurisdictional facts. We then should have reviewed all of the jurisdictional facts, and since the trial judge did not issue findings of fact, we should have presumed the trial court resolved all factual disputes in favor of its judgment. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002); Meader v. IRA Res., Inc., 178 S.W.3d 338, 343 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Because the plurality did not do so, I respectfully dissent.
Rehearing denied. Christopher, J., dissenting.
TRACY CHRISTOPHER, Justice, dissenting on denial of rehearing.
I dissent from the denial of the motion for rehearing in this case for all of the reasons that I outlined in my original dissent. The Butchers have lost a valuable right of early review through a hyper-technical view of their controverting affidavits, with the result that the plaintiff never had to prove his jurisdictional facts. None of the special appearance cases cited by the plurality opinion is similar, as each reached the merits of the jurisdictional issue, while the plurality does not.
The plurality holding did not find that the facts alleged by Hoagland are true, only that the Butchers failed to properly negate the jurisdictional facts in Hoagland's petition. I acknowledge that there are no cases that currently hold a defendant can amend its special appearance affidavit after an appeal,
but there is some case law that would support such a procedure. See Dawson–Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998) (allowing amendment after an initial denial of the special appearance). And the Supreme Court has held that a defective affidavit does not convert a special appearance into a general one. Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 307–08 (Tex.2004).
This is the first time that the Fourteenth Court of Appeals has not reached the merits of a special appearance under the burden-shifting analysis.
Our holding encourages an inefficient system as the Butchers may also be able to re-urge this issue on final appeal. See GJP, Inc. v. Ghosh, 251 S.W.3d 854, 866–67 (Tex.App.-Austin 2008, no pet.) (holding that appellate jurisdiction to review special appearance rulings was not limited solely to interlocutory appeal authorized by section 51.014(a)(7) of the Civil Practice and Remedies Code); Canyon (Australia) Pty., Ltd. v. Maersk Contractors, Pty., Ltd., No. 08–00–00248–CV, 2002 WL 997738, at *4 (Tex.App.-El Paso May 16, 2002, pet. denied) (not designated for publication) (concluding that interlocutory appeal was not “mandatory” and trial court's special appearance grant could be reviewed on appeal from final judgment); but see Matis v. Golden, 228 S.W.3d 301, 305 (Tex.App.-Waco 2007, no pet.) (concluding that challenge to order denying special appearance, raised for the first time on appeal from final judgment, was untimely because parties failed to bring an interlocutory appeal). Ultimately, if the facts do not support personal jurisdiction, the case will be reversed. See GJP, 251 S.W.3d at 866–67.
We do not want to encourage multiple appeals of an issue, and this is usually precluded under the law of the case doctrine. But when we do not reach the merits of an issue or when the facts change, the law of the case may not apply. See Virani v. Cunningham, No. 14–11–00331–CV, 2012 WL 355653, at *6–7 (Tex.App.-Houston [14th Dist.] Feb. 2, 2012, pet. denied) (mem. op.) (discussing law of the case doctrine and noting that if issues or facts change, law of the case may no longer apply); City of Houston v. Harris, 192 S.W.3d 167, 171–72 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (concluding that court of appeals' decision affirming denial of city's first plea to the jurisdiction was not law of the case for purposes of second interlocutory appeal from denial of plea on another claim).
I urge the Texas Supreme Court to take this case and reverse the plurality opinion 202or to clarify that a defendant can submit amended affidavits in support of its special appearance under the circumstances of this case: where a trial court grants a special appearance and an appellate court reverses that decision because of inadequacies in the affidavits of the defendant, with the result that the burden never shifted to the plaintiff to prove his jurisdictional facts.