Boston Medical Group v. Mark Ellis

• Court: Court of Appeals of Texas
• Decided: August 30, 2007
• Docket: 14-06-00801-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 30, 2007

Affirmed and Memorandum Opinion filed August 30, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00801-CV

BOSTON MEDICAL GROUP, INC., Appellant

V.

MARK ELLIS, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 03-48498

M E M O R A N D U M   O P I N I O N

This is an interlocutory appeal from the trial court=s order denying the special appearance of a nonresident corporation.  We affirm.

I.  Factual and Procedural Background

Appellee Mark Ellis, a Texas resident brought suit against Boston Medical GroupBTexas, P.A., a Texas corporation (ABoston MedicalBTexas@), Dr. Jacques Roy, M.D. (ADr. Roy@), a Texas resident, and Boston Medical Group, Inc. (ABoston Medical, Inc.@), a California corporation, to recover damages allegedly sustained as a result of medical malpractice.  Ellis claims that he suffered permanent injury as a result of the defendants= negligent care and treatment of a sexual dysfunction. 

Ellis went to Boston MedicalBTexas to seek medical treatment of a sexual dysfunction.  Dr. Roy examined Ellis and diagnosed him with decreased erectile function secondary to decreased blood flow.  On July 16, 2003, Dr. Roy prescribed medication that Ellis was to inject into his penis when he desired to achieve an erection.  Ellis contends that he was provided with literature that was misleading and enticed him to purchase medication sold by the defendants.  Ellis purchased the medication, and performed this selfBinjection on July 19, 2003.  Two days later, on July 21, 2003, Ellis continued to have an erection, so he returned to see Dr. Roy.  Dr. Roy attempted to decompress the erection for approximately ten hours, and when these attempts were unsuccessful, he instructed Ellis to check into a nearby hotel.  After several hours without change, Dr. Roy instructed Ellis to go to the emergency room at Memorial Hermann Hospital, where he underwent surgical decompression.  This surgery left Ellis impotent.

Ellis brought suit against Boston Medical-Texas, Boston Medical, Inc. and Dr. Roy. He claims Boston Medical, Inc. is liable for actual and punitive damages based on the alleged negligence, gross negligence, and malice of its agents and employees.  After being sued, Boston MedicalBTexas and Dr. Roy entered general appearances and did not challenge the personal jurisdiction of the trial court over them.  However, Boston Medical, Inc. filed a special appearance alleging that the trial court lacked personal jurisdiction over it because there was no specific or general jurisdiction.  After a hearing, the trial court denied Boston Medical, Inc.=s special appearance.  In this interlocutory appeal, Boston Medical, Inc. challenges the trial court=s jurisdictional ruling.

II.  Standard of Review

Whether Boston Medical, Inc.  is subject to personal jurisdiction in Texas is a question of law subject to de novo review.   See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).   The trial court did not issue any findings of fact or conclusions of law. Therefore, all facts necessary to support the trial court=s ruling and supported by the evidence are implied in favor of the trial court=s decision.  Id. at 795.  Parties may challenge the legal and factual sufficiency of these implied factual findings.  Id.  In conducting a no‑evidence analysis, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it.  See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.  2005).  We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not.  See id. at 827.  We must determine whether the evidence at trial would enable reasonable and fair‑minded people to find the facts at issue.  See id.  The factfinder is the sole judge of the credibility of the witnesses and the weight of their testimony.  See id. at 819.

When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  After considering and weighing all the evidence, we set aside the fact 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).  The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).  The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment.  GTE Mobilnet, 61 S.W.3d at 616.

III.  Issues and Analysis

In two issues, Boston Medical, Inc. challenges the trial court=s implied findings of specific and general jurisdiction, and its denial of the special appearance.  More specifically, Boston Medical, Inc. contends the evidence is legally and factually insufficient  to support the trial court=s order denying its special appearance.  Thus, the main issue before this court is whether the evidence is legally and factually sufficient to support the trial court=s implied findings of jurisdiction.

The Texas long‑arm statute governs Texas courts= exercise of jurisdiction over nonresident defendants. Tex. Civ. Prac. & Rem. Code Ann. '' 17.041B.045 (Vernon Supp. 2005).  It allows courts to exercise personal jurisdiction as far as the federal constitutional requirements of due process will permit.  See BMC Software, 83 S.W.3d at 795.  We rely on precedent from the United States Supreme Court and from other federal courts, as well as Texas decisions, in determining whether a nonresident defendant has shown that the exercise of personal jurisdiction violates federal due process guarantees.  Id.

Personal jurisdiction over a nonresident defendant is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice.  Id.  A nonresident defendant that purposefully has availed itself of the privileges and benefits of conducting business in Texas has sufficient contacts to allow Texas courts to exercise personal jurisdiction over the nonresident.  Id.  Although not determinative, foreseeability is an important consideration in deciding whether the nonresident defendant purposefully has established minimum contacts with Texas.  Id.  The concept of foreseeability is implicit in the requirement that there be a substantial connection between the defendants and Texas arising from their conduct purposefully directed toward Texas.   See Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex. 1991).  A defendant should not be subject to a Texas court=s jurisdiction based upon random, fortuitous, or attenuated contacts.  BMC Software, 83 S.W.3d at 795.

Specific jurisdiction exists when the claims in question arise from or relate to the defendant=s purposeful contacts with Texas.  Am. Type Culture Collection Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002).  In conducting a specific‑jurisdiction analysis, we focus on the relationship among the defendants, Texas, and the litigation.  See Guardian Royal, 815 S.W.2d at 228. For a nonresident defendant=s forum contacts to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation.  See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007).  General jurisdiction, however, implicates a more demanding minimum‑contacts analysis, requiring a showing that the defendants conducted substantial activities within the forum.  CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) (orig. proceeding). General jurisdiction exists when a defendant has Acontinuous and systematic general business contacts@ with Texas so that Texas courts may exercise personal jurisdiction over the defendant even if the plaintiff=s claims did not arise from or relate to the defendant=s activities purposefully directed to Texas.  See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414B16, 104 S.Ct. 1868, 1872B73, 80 L.Ed.2d 404 (1984); Am. Type Culture Collection, 83 S.W.3d at 809B10.  Boston Medical, Inc. argues that it is not subject to specific or general jurisdiction.

Boston Medical, Inc. asserts the trial court erred by denying its special appearance because: (1) references to ABoston Medical Group@ in documents and at the depositions do not support jurisdiction over Boston Medical, Inc. because there is no evidence that these entities are the same; (2) this action does not arise out of or relate to any contacts between Boston Medical, Inc. and Texas necessary to show specific jurisdiction; and (3) Boston Medical, Inc. lacks the substantial contacts with Texas necessary to support general jurisdiction.^[1]  In response, Ellis contends that Boston Medical, Inc.=s activities were purposefully directed at Texas, both as a corporate entity, and through its agents and employees.

The plaintiff bears the initial burden of pleading sufficient allegations to bring nonresident defendants within the provisions of the Texas long-arm statute. See Am. Type Culture Collection, 83 S.W.3d at 807.  This minimal pleading requirement is satisfied by an allegation that the nonresident defendants are doing business in Texas.   See Perna v. Hogan, 162 S.W.3d 648, 652B53 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Because Ellis pleaded in his petition that Boston Medical, Inc. conducted business in Texas and committed torts in Texas, both as a corporate entity and through its agents, Ellis satisfied his pleading requirement.  Therefore,  the burden shifted to Boston Medical, Inc. to negate all bases of personal jurisdiction raised by Ellis=s allegations.  See Moki Mac River Expeditions, 221 S.W.3d at 574.

 A.     Boston Medical, Inc. failed to negate all bases of jurisdiction.

Ellis asserts, among other things, that Dr. Roy was negligent while providing medical treatment to Ellis in Texas and that his negligence  proximately caused Ellis=s  damages.  In his live pleading, Ellis alleges the following:

(1)     Each of the physicians, nurses, nurses aides, physical therapist[s], and technicians involved in Mark Ellis= care was either an employee or apparent and/or ostensible agent of Boston Medical Group, Inc. at the time the cause of action occurred, and therefore Boston Medical Group, Inc. is liable for their negligence and malice.

(2)     Boston Medical Group, Inc. is independently through its agents and employees and through its failure to implement proper policies and procedures and adequately train or make certain that its physicians, nurses, and nurses aides were trained in the diagnosis and treatment of erectile dysfunction.

(3)     Boston Medical Group, Inc. supplied Mark Ellis with misleading documentation stating that the intracavernosal injections were curative in the majority of their patients and the literature concerning alternate treatments was slanted in a negative way to persuade Mark Ellis to agree to purchase the injectable medication from Boston Medical Group, Inc. instead of choosing a safer alternative oral medication.

(4)     Boston Medical Group, Inc. owed a duty to Mark Ellis that he be examined by a physician expert in erectile dysfunction who would perform a thorough evaluation and offer him the safest alternative treatments.  Boston Medical Group, Inc. also owed Mark Ellis a duty to supply him with fair and balanced information concerning erectile dysfunction and the various treatment options.

(emphasis added). Two of the individuals who allegedly treated and counseled Ellis in Texas were Robert HickmanBthe medical advisor, and Dr. Jacques RoyBEllis=s treating physician.   Ellis contends that Boston Medical, Inc. failed to negate his allegation that Dr. Roy and the other individuals tho treated him in Texas are agents of Boston Medical, Inc.  The Texas contacts of agents or employees are attributable to their nonresident principals.  See Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 214 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). 

In its special appearance, and through its evidence, Boston Medical, Inc. failed to challenge Ellis=s assertion that Boston Medical, Inc. maintained agents or employees in Texas.  More specifically, Boston Medical, Inc. failed to negate that Dr. RoyCthe treating physicianCwas not its agent or employee.^[2]  Because Boston Medical, Inc. failed to negate this jurisdictional fact, we conclude that Boston Medical, Inc. failed to negate all bases for jurisdiction alleged by Ellis.  Therefore, on this basis alone, the trial court did not err in denying Boston Medical, Inc.=s special appearance.  However, even if Boston Medical, Inc. had negated Ellis=s jurisdictional claim of agency, the record contains other legally and factually sufficient evidence to support the trial court=s implied findings in support of specific jurisdiction. 

B.      The evidence is legally and factually sufficient to support the trial court=s implied findings in  support of specific jurisdiction.

For a Texas court to properly exercise specific jurisdiction in this case, (1) the claims in question must arise from or relate to Boston Medical, Inc.=s purposeful contacts with Texas; and (2) there must be a substantial connection between those contacts and the operative facts of the litigation.  See Moki Mac, 221 S.W.3d at 576, 585.   

Ellis points to the depositions of Robert Hickman and Dr. Roy as well as the verification of Thomas Messigner, Boston Medical, Inc.=s agent for service of process, and several documents which bear the name ABoston Medical Group, Inc.@   In his deposition, Hickman testified that he sought employment with ABoston Medical Group@^[3]  when he came across an internet listing.  Hickman submitted his resume, and soon thereafter was contacted by a woman named AMaribelle@ who was located in the Human Resources Department in the Cosa Mesa, California office.^[4]   Hickman stated that an interview was set up, and Dr. Daniel Ha, the president of the entire ABoston Medical Group@ came to Houston, Texas,  to interview him.  After Hickman was hired, the clinical manager, Michael Moss came from California to train him in Houston.  Hickman stated that Moss remained in Houston for approximately two weeks.  Hickman further stated that Moss works with Messigner who is the Ageneral manager@ over all of the ABoston Medical Group.@  

Hickman further testified that his paychecks come from California, and when he needs to request time off, he calls an office located in California. Hickman stated that Dr. Ha was one of the individuals who formulated the prescription that was given to Ellis.  In addition, and most imperatively, is that several documents produced by Ellis bear the name ABoston Medical Group, Inc.,@ including the informed consent form Ellis signed on July 16, 2003,for the medical treatment.  

          In its supplemental special appearance, Boston Medical, Inc. attempted to refute Hickman=s deposition testimony, and the documents that made reference to ABoston Medical Group, Inc.@ by attaching affidavits of Hickman, Dr. Ha, and Messigner.  Boston Medical, Inc.=s main contention is that trial court does not have specific jurisdiction over it because the claims do not arise from and are not related to any contacts between Boston Medical, Inc. and Texas, but are the contacts of another company named ABoston Medical Group.@  Boston Medical, Inc. asserts the following:

(1)     There is no evidence that any person involved in Ellis=s care or treatment was employed by Boston Medical, Inc.;

(2)     The evidence is undisputed that Boston Medical, Inc. does not operate in Texas;

(3)     Ellis=s injuries do not arise out of any contacts between Boston Medical Group, Inc. and Texas because Boston Medical, Inc. does not have any contacts with Texas;

(4)     Although Ellis may have presented evidence about a connection between a company that has its headquarters in California, and the claims made in this case, there is no evidence that the company was Boston Medical Group, Inc.;

(5)     Although Ellis mentions a few documents that bear the name of Boston Medical, Inc., Dr. Ha testified that he created documents with this name before the actual entity existed, and he assumed that was to be the name of the future entity but that it ultimately was not the name; and

(6)     Robert Hickman, the medical advisor at Boston Medical Group in Houston, Texas was not referring to Boston Medical, Inc. in California when he was asked questions but was referring to a Adifferent entity.@

In his affidavit, Robert Hickman, states in pertinent part:

!       AI gave a deposition on July 15, 2005, in which I was asked several questions about >Boston Medical Group= in general and not the specific entity >Boston Medical Group, Inc.= Likewise, my answers involved >Boston Medical Group= generally and not >Boston Medical Group, Inc.= I was not aware of any corporate structure or legal names of the different entities at the time of my deposition.@

!       AI have read Plaintiff=s response to Boston Medical Group, Inc.=s Special Appearance.  Plaintiff=s counsel incorrectly references my deposition several times as evidence of Boston Medical Group, Inc.=s involvement in Texas. For instance, the response states >Mr. Hickman sought employment with BMG, Inc. [Boston Medical Group,Inc.] when he came across an internet employment listing.= As you can see from the question in the deposition and my response, I was asked about >Boston Medical Group= generally and not >Boston Medical Group, Inc.=  I did not seek employment with >Boston Medical Group, Inc.=@

!       AThe response also cites my deposition as evidence that Maribelle is the human resources person at Boston Medical Group, Inc. Again, I was asked about >Boston Medical Group= in general. I do not know if Maribelle is affiliated with >Boston Medical Group, Inc.=@

!       AThe response also cites my deposition as evidence that Dr. Ha is president of >Boston Medical Group, Inc.= However, I only stated that Dr. Ha was president of >Boston Medical Group= generally and not >Boston Medical Group, Inc.= Also, my statement regarding Dr. Ha was more or less a guess, and by no means did I mean to imply an affiliation between Dr. Ha and >Boston Medical Group, Inc.=  Dr. Ha has a better understanding of his involvement, if any, than I do.@

!       AThe response also cites my deposition as evidence that Tom Messigner is the general manager over all of the >Boston Medical Group.  Again, I did not know the differences between the entities. I only referred to >Boston Medical Group= generally in my responses. I did not state >Boston Medical Group, Inc.= nor did I intend it infer it [sic].  My statement regarding Tom Messigner was more or less a guess, and by no means did I mean to imply an affiliation between Tom Messigner and >Boston Medical Group, Inc.= Tom Messigner has a better understanding of his involvement, if any, than I do.@

!       AThe response also cites my deposition as evidence that my paychecks come from Boston Medical Group in California.  After reviewing my check, I see that I was mistaken.  My checks do come from California, but >Boston Medical Group, Inc.= and >Boston Medical Group= do not appear anywhwere on my direct deposit check.  A different entity is named.  In short, I am not paid by >Boston Medical Group, Inc.=@

!       AThe response also cites my deposition as evidence that I call headquarters in California to get time off.  While it is true that I call California, I do not know the name of the entity that is called. My statement regarding headquarters in California was more or less a guess, and by no means did I mean to imply >Boston Medical Group, Inc.= Further Plaintiff=s counsel even asked me if I understood that there could be headquarters in Florida, to which I responded that there could be, but I never deal with them.@

!       AThe response also cites my deposition as evidence that the information given to patients comes from headquarters in California.  While it is true that the information came from California, I do not know the name of the entity that provides it. Again, my statement regarding headquarters in California was more or less a guess, and by no means did I mean to imply >Boston Medical Group, Inc.=. . . @

Thomas Messigner verified the following allegations in Boston Medical, Inc.=s special appearance:

!       Plaintiff=s First Amended Petition acknowledges that Boston Medical, Inc. is  a foreign corporation with its office and registered agent located in Costa Mesa, California;

!       Boston Medical, Inc. is a California corporation with its principal place of business in Costa Mesa, California;

!       Boston Medical, Inc. does not have any ownership interest in any clinic in Texas;

!       Boston Medical, Inc. does not and has not had a place of business in Texas;

!       Boston Medical, Inc. does not maintain a registered agent in Texas;

!       Boston Medical, Inc. does not have an office in Texas;

!       Boston Medical, Inc. does not lease any property in Texas;

!       Boston Medical Inc. does not lease any property outside of Texas for use within the state of Texas;

!       Boston Medical, Inc. does not own any personal property located in Texas;

!       Boston Medical, Inc. does not have a telephone listing in Texas; and

!       Boston Medical, Inc. does not do any marketing in of Texas.

In his affidavit attached to the supplemental special appearance, Messigner further stated that his only affiliation with ABoston Medical Group, Inc.@ in California  is that [he is] its registered agent.  He also states that although he is not employed by Boston Medical, Inc., he has personal knowledge that Michael Moss and Maribelle Flores are not employed by Boston Medical, Inc.  Finally, in reference to the several documents that bear the name ABoston Medical Group, Inc.,@ including the informed consent form Ellis signed, Boston Medical, Inc. offered Dr. Ha=s affidavit as an explanation.  In his affidavit, Dr. Ha states:

AI created certain handouts that bear the name >Boston Medical Group, Inc.= At the time[] I prepared these documents, that entity did not exist, and I assumed that >Boston Medical Group, Inc.= would end up being the name of the corporation for which I was preparing the documents.   However, the name ABoston Medical Group, Inc.= was not used for that entity.  Unfortunately, when I revised the documents, I did not go back to change the name for the appropriate entity.@

In his affidavit, Hickman stated that he is not paid by Boston Medical Group, Inc.; however, he failed to reveal the name of the entity in California that actually does compensate him for his services.  Although Hickman=s affidavit contradicts his deposition, the trial court, as the sole judge of the credibility of the witness, could have determined that Hickman meant ABoston Medical Group, Inc.@ when making reference to  ABoston Medical Group@ generally during his deposition. See Huynh, 180 S.W.3d at 620; Puri v. Mansukhani, 973 S.W.2d 701, 710B711 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (refusing to comply with appellee=s request to reevaluate appellee=s credibility as the trial court is the sole judge of credibility and resolves all conflicts in the special appearance evidence).  In this case, the trial court impliedly resolved all conflicts in the evidence against Boston Medical, Inc., and in favor of Ellis by denying the special appearance. 

Moreover, in reviewing Dr. Ha=s affidavit, the trial court could have discounted his explanation of why certain documents, including Ellis=s consent form, bear the name ABoston Medical Group, Inc.@   Although Dr. Ha specifically stated that ABoston Medical Group, Inc.@ was not the actual name, he (like Hickman) also failed to reveal the name of the  entity that he claims should have been used.  Finally, as to Maribelle Flores (the individual in the Human Resources Department in the Cosa Mesa office who contacted Hickman for an interview) and Michael Moss (the clinical manager who came from California to train Hickman), the trial court could have found impliedly that these individuals were connected to the ABoston Medical Group, Inc.@ office in Cosa Mesa, California despite Messigner=s affidavit.  Likewise, the trial court could have concluded that Messigner lacks credibility.  See Tex. R. Civ. P.  120a(3); see also Navasota Res., Ltd. v. Heep Petroleum, Inc., 212 S.W.3d 463, 469 (Tex. App.CAustin 2006, no pet.) (refusing to disturb the trial court=s resolution of evidentiary conflicts and issues of credibility in special appearance context); Ennis v. Loiseau, 164 S.W.3d 698, 704 (Tex. App.CAustin 2005, no pet.) (concluding that statements by corporate defendant=s president in special appearance affidavits could be excluded as conclusory in determining personal jurisdiction); Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 250 n. 8 (Tex. App.CHouston [1st Dist.] 2004, pet. denied) (stating that special appearance affidavits must be Adirect, unmistakable, and unequivocal as to the facts sworn to.@).  Although he states that he is not employed by ABoston Medical Group, Inc.@and has no connection with that entity other than being its registered agent, he claims to have personal knowledge that Moss and Flores neither work for nor are they employed by ABoston Medical Group, Inc.@  To avoid being deemed conclusory, an affidavit must contain specific factual bases upon which the stated conclusions are drawn.  Nichols v. Lightle, 153 S.W.3d 563, 570 (Tex. App.CAmarillo 2004, pet. denied).  Messigner does not explain how he has such personal knowledge of Moss=s and Flores=s lack of employment with Boston Medical Group, Inc.  The trial court could have found that Messigner himself does  not work for the company and does not know who does or does not work for Boston Medical Group, Inc.  See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (stating that A[m]erely reciting that an affidavit is made on personal knowledge is insufficient.@); Urban v. Barker, No. 14-06-00387-CV, 2007 WL 665118, at *2B3  (Tex. App.CHouston [14 Dist.] Mar. 06, 2007, no pet.) (mem. op.) (finding affidavit in support of special appearance insufficient under Rule 120a(3) where affidavit revealed no facts on how affiant acquired personal knowledge as to the statements made in her affidavit).

In conducting a legal-sufficiency review, we must credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not.  Wilson, 168 S.W.2d at 822.  In reviewing a factual-sufficiency challenge, we may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence.   Maritime Overseas, 971 S.W.2d at 407.  Therefore, applying the applicable standards of review, we conclude that the evidence is legally and factually sufficient to support the trial court=s implied finding that Boston Medical, Inc. was the entity to which Hickman referred in his deposition, and that (1) the claims in question arise from or relate to Boston Medical, Inc.=s purposeful contacts with Texas; and (2) there is a substantial connection between these contacts and the operative facts of this litigation.  See Moki Mac, 221 S.W.3d at 576, 585.  Accordingly, we overrule both of Boston Medical, Inc.=s issues on appeal, and we affirm the trial court=s order denying Boston Medical, Inc.=s special appearance.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed August 30, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

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^[1]   On appeal, Boston Medical, Inc. has not argued that the trial court=s exercise of personal jurisdiction over it would violate traditional notions of fair play and substantial justice -B the second prong in the jurisdictional analysis.  See Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990).  Thus, we do not address this prong in this opinion.

^[2]  We note that as to Robert Hickman, Boston Medical, Inc. attached an affidavit to its supplemental special appearance attempting to show that Hickman was not affiliated with ABoston Medical Group, Inc.,@ but rather was affiliated with some other unnamed entity that is generally known as ABoston Medical Group.@  Therefore, we conclude that, to this extent, Boston Medical, Inc. produced evidence to negate Hickman=s agency status, placing the burden back on Ellis.  We discuss Hickman=s status with ABoston Medical Group, Inc.@ in further detail below.

^[3]  As noted below, Hickman disputes (in an affidavit) that this is the same entity as ABoston Medical Group, Inc.@  However, the trial court, as the finder of fact and judge of the credibility of the witnesses, could have disregarded Hickman=s affidavit and made the implied finding that Hickman was indeed connected to ABoston Medical Group, Inc.@ as an employee or agent, and not with some other ABoston Medical Group@ entity that he failed to identify by name. See Huynh, 180 S.W.3d at 620.

^[4]  Notably, Boston Medical Group, Inc.=s principal place of business is also in Cosa Mesa, California.