Anjum Malik, Individually and as Next Kin of Zeeshan Malik, Hussain Malik, Aabir Malik and Amrin Malik v. A. Briggs Passport & Visa Expeditors

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00511-CV

Anjum Malik, Individually and as Next Kin of Zeeshan Malik, Hussain Malik, Aabir Malik and Amrin Malik, Appellant

v.

A. Briggs Passport & Visa Expeditors , Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO. 260, 391, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

MEMORANDUM OPINION

Anjum Malik, individually and as next kin of Zeeshan Malik, Hussain Malik, Aabir Malik,

and Amrin Malik (AMalik@), filed suit in Texas against Barnett Porter Briggs d/b/a A. Briggs Passport &

Visa Expeditors (ABriggs Passport@) for failure to deliver visas as promised in time for the Maliks= Christmas

vacation to Pakistan. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(7) (West Supp. 2003); Tex. R.

Civ. P. 120a. Briggs filed a special appearance claiming that he and his sole proprietorship are not residents

of Texas and that they do not have sufficient contacts with Texas to support the exercise of jurisdiction over

them. After a hearing on the issue, the trial court sustained the special appearance. We affirm the trial

court=s order sustaining the special appearance. BACKGROUND

To travel to Pakistan during the 1999 Christmas holidays, Anjum Malik sought to obtain

visas from the Pakistani Consulate General in Los Angeles. Mr. and Mrs. Malik are citizens of India and

their children are American citizens. To facilitate their applications during the busy holiday period, Malik

contacted Briggs Passport, whose name and telephone number appeared in the classified section of the

telephone book under the heading for visa and passport services. Malik claims that as a consequence of

Briggs Passport=s inaction and misrepresentation, she received the visas late, forcing her to incur delay and

additional travel expenses. She sued Briggs Passport, alleging causes of action for breach of contract,

fraud, and violation of the Deceptive Trade Practices Act, Tex. Bus. & Com. Code Ann. '' 17.41-.63

(West 2002 & Supp. 2003). As a basis for jurisdiction, Malik asserted only that the county court at law

has jurisdiction because ADefendant . . . does business in the State of Texas.@

Briggs filed a special appearance, arguing that his contacts with Texas did not permit the

trial court to exercise personal jurisdiction over him or his business. Specifically, Briggs contended that he

was not subject to the jurisdiction of Texas courts because he is not a resident of Texas and he and his

company have not had sufficient minimum contacts with Texas. See Burger King Corp. v. Rudzewicz, 471

U.S. 462, 471-72 (1985) (citing International Shoe Co. v. Washington, 326 U.S. 310 (1945)).

Briggs filed a verified special appearance accompanied by an affidavit, asserting that he is an

individual residing in Washington, D.C., and Arkansas, and doing business under the assumed name of A.

Briggs Passport & Visa Expeditors. According to Briggs=s sworn motion, Briggs Passport is in the business

of providing services to obtain passports and visas for members of the general public. Briggs asserted that

2 he is not a resident of Texas and has had no purposeful contacts with the state. He further averred that his

business and residence are in Washington, D.C., and that he maintains a residence in Arkansas.

In her affidavit responding to the special appearance, Malik averred that she found AA.

Briggs in the Yellow pages of the Austin phone directory in the section for >Passport and Visa Services.=@

After finding the listing, Malik contacted Briggs Passport through the business=s 800 number. She then

forwarded the family=s passports to Briggs Passport=s general manager in November 1999 to obtain visas.

The family Aended up not getting Pakistani Visas in the United States. We had to spend four days of our

vacation in New Delhi trying to get Pakistani Visas instead of spending our Christmas vacation with our

relatives in Pakistan.@

In her response to the special appearance, Malik contended that Texas courts could

exercise personal jurisdiction over Briggs Passport based on the listing alone. Malik did not attach the

listing to her affidavit. The parties do not dispute that the listing contains the name and 800-telephone

number of A. Briggs. Following a contested hearing, the trial court granted Briggs Passport=s special

appearance. No party requested the court to make findings of fact and conclusions of law.1

1 A trial court need not, but mayCwithin thirty days after the interlocutory order is signedCfile findings of fact and conclusions of law. Tex. R. App. P. 28.1.

3 APPLICABLE LAW

Standard of Review

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident

defendant within the provisions of the long-arm statute. BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 793 (Tex. 2002); McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965). The plaintiff

must allege facts that, if true, would make a nonresident defendant subject to the personal jurisdiction of a

Texas court. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 496 (Tex. 1988). When a

plaintiff=s pleadings do not specifically allege any acts for personal jurisdiction, a defendant meets its burden

of proof by putting on evidence that it is a nonresident. See Siskind v. Villa Found. for Educ., Inc., 642

S.W.2d 434, 438 (Tex. 1982); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 (Tex.

App.CCorpus Christi 1999, no pet.). A defendant challenging a Texas court=s personal jurisdiction must

negate all jurisdictional bases alleged by the plaintiff. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d

199, 203 (Tex. 1985).

We review the trial court=s factual findings for legal and factual sufficiency. 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, as here, all facts necessary to support the judgment and supported by the evidence are

implied. Id. at 795; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). When the appellate record

includes the reporter=s and clerk=s records, these implied findings are not conclusive and may be challenged

for legal and factual sufficiency. BMC Software, 83 S.W.3d at 795; Roberson v. Robinson, 768 S.W.2d

4 280, 281 (Tex. 1989). We will affirm if the judgment can be upheld on any legal theory that is supported

by the record. BMC Software, 83 S.W.3d at 794-95.

Personal Jurisdiction

A Texas court may exercise jurisdiction over a nonresident defendant if the Texas long-arm

statute authorizes the exercise of jurisdiction and the exercise of jurisdiction comports with due process.

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.

1991); see Tex. Civ. Prac. & Rem. Code Ann. ' 17.042 (West 1997). The broad language of the Texas

long-arm statute permits an expansive reach, limited only by the federal constitutional requirements of due

process. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). As a result, we consider only

whether it is consistent with federal due process for Texas courts to assert personal jurisdiction over Briggs

Passport. Guardian Royal, 815 S.W.2d at 226.

The federal due process clause protects a person=s liberty interest in not being subject to

binding judgments of a forum with which that person has established no meaningful contacts, ties, or

relations. Burger King, 471 U.S. at 471-72 (citing International Shoe, 326 U.S. at 319). Under the

federal constitutional test of due process, a state may assert personal jurisdiction over a nonresident

defendant only if the defendant has purposefully established minimum contacts with the forum state and the

exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Id. at 476; CSR

Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996).

The test for minimum contacts is whether Briggs purposefully availed himself of the privilege

of conducting activities in Texas, thereby invoking the benefit and protection of Texas laws. See

5 Schlobohm, 784 S.W.2d at 357-58. This requirement ensures that a nonresident will be Ahaled@ into court

only as a result of intentional activities, so that it is reasonable for the nonresident defendant to expect the

call of a Texas court. Guardian Royal, 815 S.W.2d at 226; Schlobohm, 784 S.W.2d at 357-58.

The minimum contacts analysis has been refined into two types of jurisdictionCspecific and

general jurisdiction. Because Malik does not contend that general jurisdiction exists, we will confine our

discussion to whether there is specific jurisdiction. Specific jurisdiction exists when the cause of action

arises out of or relates directly to the nonresident defendant=s contacts with the forum state. Guardian

Royal, 815 S.W.2d at 230. In such an instance, the defendant=s specific activities must have been

purposefully directed toward the forum state. Id. at 228. Specific jurisdiction is established if the

defendant=s alleged liability arises from or is related to an activity conducted within the forum. Id.

ANALYSIS

In her original petition, to support jurisdiction over Briggs Passport, Malik alleged only that

the defendant Adoes business in the State of Texas.@ Malik=s pleadings contained no allegations that Briggs

Passport committed any acts in Texas. The petition acknowledged that Briggs Passport was a foreign

Aproprietorship@ headquartered in Washington, D.C. Malik alleged she could serve Briggs Passport only

through its president, Porter Briggs, at his offices in Washington, D.C.

In response to Briggs Passport=s special appearance, Malik asserted in an affidavit that she

found AA. Briggs@ in the yellow pages of the Austin telephone directory in the section for APassport and Visa

Services@ and Acalled their 800 number.@ By a sworn amended special appearance response, Briggs

presented evidence that he is a nonresident and further negated other potential bases of jurisdiction.

6 Malik had the initial burden of pleading sufficient allegations to bring Briggs Passport within

the provisions of the long-arm statute. BMC Software, 83 S.W.3d at 793. As the nonresident defendant,

Briggs Passport then had the burden to negate all bases of personal jurisdiction at the special appearance

hearing. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 664 (Tex. 1987); Kawasaki Steel

Corp., 699 S.W.2d at 203. Without jurisdictional allegations by the plaintiff, the defendant can meet its

burden of negating all potential bases of jurisdiction by presenting mere proof that it is a nonresident. BMC

Software, 83 S.W.3d at 796; Siskind, 642 S.W.2d at 438.

At the special appearance hearing, Malik presented her affidavit averring that she found A.

Briggs in the yellow pages of the Austin telephone directory in the section for APassport and Visa Services.@

She further averred: AI then sent our passports for A. Briggs to get us Pakistani Visas. Because of multiple

misrepresentations and mistakes of [an employee of Briggs Passport], who represented himself to me as the

general manager of A. Briggs, we ended up not getting Pakistani Visas in the United States.@ Instead, Malik

obtained the visas in New Delhi, India.

The evidence is undisputed that Briggs Passport is a nonresident. But Briggs also presented

his own affidavit as owner that his business is a sole proprietorship with its offices in Washington, D.C. He

further averred that he conducts his business of obtaining passports and visas for third parties from the

Washington, D.C. office. Briggs has never lived in, had an office in, or conducted business in Texas. Briggs

averred that he maintained a website2 and advertised in the yellow pages of various telephone books around

2 There is no evidence in the record that the website is anything other than a Apassive@ website for which most courts decline to assert the existence of personal jurisdiction. See, e.g., Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999). In any event, there is no allegation that the website relates to

7 the country, including the yellow pages in the telephone book for Austin. There is no allegation that any

information transmitted by telephone or letter gave rise to Malik=s claims. See Schlobohm, 784 S.W.2d at

357 (AWhere the activities of a defendant in a forum are isolated or disjointed . . . jurisdiction is proper if the

cause of action arises from a particular activity.@); Klenk v. Bustamante, 993 S.W.2d 677, 684 (Tex.

App.CSan Antonio 1998, no pet.) (no specific jurisdiction in Texas for fraud when plaintiff=s allegations did

not show how New York attorney=s long-distance telephone conversations with plaintiff were fraudulent or

deceptive). We may not infer jurisdictional facts. McKanna, 388 S.W.2d at 929-30.

Malik=s petition acknowledged that Briggs Passport was a foreign proprietorship with its

office in Washington, D.C. Briggs Passport presented evidence that it was a nonresident. Malik did not

request findings of fact. The trial court concluded that the special appearance should be sustained. Without

findings of fact, it is therefore implied that the trial court made all the findings necessary to support its

judgment. Worford, 801 S.W.2d at 109. The judgment must be affirmed if it can be upheld on any legal

theory that finds support in the evidence. Id. Some additional act in Texas or one with reasonably

foreseeable consequences within the forum is required. BMC Software, 83 S.W.3d at 797; Siskind, 642

S.W.2d at 438. Absent allegations of specific jurisdictional acts by Briggs Passport, general allegations that

Briggs Passport committed fraud, deceptive acts, or breach of contract are insufficient to require it to prove

more than nonresidency. Siskind, 642 S.W.2d at 438.

the causes of action asserted.

8 Malik did not allege specific facts and did not introduce evidence to support a claim for

jurisdiction based upon the commission of a tort or other cause of action. We hold that because Malik did

not allege any jurisdictional facts or present proof of such facts at the hearing, Briggs Passport=s evidence

was sufficient to sustain its burden to negate personal jurisdiction. After reviewing the uncontroverted

evidence submitted on the special appearance, there is some evidence to support a finding that Briggs

Passport is not subject to the jurisdiction of Texas courts. See BMC Software, 83 S.W.3d at 794-95. In

the absence of other contacts with the forum state, we decline to conclude that specific jurisdiction exists.

Accordingly, we agree with the trial court that it lacked specific jurisdiction over Briggs Passport. We

affirm the trial court=s judgment granting the special appearance.

CONCLUSION

We hold that Malik did not allege sufficient facts to support jurisdiction over Briggs

Passport. Because Briggs Passport did not have sufficient minimum contacts with Texas, we conclude that

the trial court lacked specific jurisdiction. Accordingly, we affirm the trial court=s judgment dismissing the

case against Briggs Passport for lack of personal jurisdiction.

__________________________________________

Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

9 Filed: February 27, 2003