Jeniffer Aloysius v. Mark Kislingbury & Stenomaster, Inc.

• Court: Court of Appeals of Texas
• Decided: March 18, 2010
• Docket: 01-09-00365-CV
• Status: Published

Opinion

Opinion issued March 18, 2010

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-09-00365-CV

JENIFFER ALOYSIUS, Appellant

v.

MARK KISLINGBURY AND STENOMASTER, INC., Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2008-23683

MEMORANDUM OPINION

Appellant, Jeniffer Aloysius ("Aloysius") appeals the trial court's denial of her special appearance. Aloysius complains that the trial court erred because she lacks the necessary minimum contacts with Texas to establish its jurisdiction over her. Aloysius also complains that the trial court erred by failing to dismiss this suit because Appellee, StenoMaster, Inc. ("StenoMaster") lacks capacity to bring suit, Texas is an inconvenient forum in which to litigate this case, the parties are engaged in an ongoing discovery dispute, the petition fails to state a claim against her, and StenoMaster and Appellee Mark Kislingbury ("Kislingbury") have engaged in sanctionable conduct. We affirm.

BACKGROUND

Formation of StenoMaster, Inc.

Kislingbury created a proprietary court reporting system he calls "StenoMaster." According to Kislingbury, Aloysius, who was in Colorado, contacted him in Texas regarding a seminar on his court reporting system to be held in Colorado. ⁽¹⁾ Kislingbury traveled to Colorado to conduct the seminar in April 2004. During that trip to Colorado, Aloysius proposed that they form a business venture to market his court reporting system. ⁽²⁾ Aloysius proposed that she would do the behind-the-scenes work of marketing and management and that Kislingbury would continue teaching seminars to court reporters in multiple states. Aloysius and Kislingbury discussed the particulars of the corporation by telephone and e-mail after Kislingbury returned to Texas. According to Kislingbury "[the] agreement for [Aloysius] to manage StenoMaster was to be performed, at least in part, in Texas by [Aloysius] marketing, organizing and attending seminars that I would teach in Texas as well as other states."

Pursuant to the February 14, 2004 Stenomaster, Incorporated Agreement (the "Agreement"), Kislingbury owned 75% of the company, while Aloysius owned 25%. ⁽³⁾ The Agreement stated that StenoMaster was to be a Colorado corporation and required Aloysius and Kislingbury to apportion all liabilities and revenue according to their respective percentage of ownership. Further, Aloysius and Kislingbury agreed that they would "consult with each other prior to committing Corporate funds or extending Corporate liability and will do so only upon mutual agreement." The Agreement stated that it was "premised upon the applicable and relevant laws of the State of Colorado and other governmental entities of proper jurisdiction in effect as of the date of incorporation . . . ." Aloysius signed the Agreement in Colorado, then she mailed it to Kislingbury, who signed it in Texas. According to Aloysius, Kislingbury was the sole author of the Agreement and he presented it to her as a "take it or leave it" offer.

After StenoMaster was formed, Kislingbury opened a bank account for the company in Texas. Aloysius was a signatory on the account, and to that end, she mailed a signed signature card to the bank in Texas. Aloysius received bank statements in Colorado from the Texas bank, and she reconciled and managed the Texas bank account from Colorado. In an affidavit submitted to the trial court, however, Aloysius stated that "[f]rom the time he opened the bank account to the present, Mr. Kislingbury has retained access, control and signatory rights to the bank account . . . ." Aloysius stated, "I have never been to the bank. I managed the account solely as a representative of StenoMaster." All funds and payments Aloysius received from StenoMaster were from the Texas bank account.

Aloysius traveled to Texas on several occasions for StenoMaster. Kislingbury stated that he saw her "at least five times" at "several events" in Texas relating to StenoMaster and court reporting. Additionally, Kislingbury stated that Aloysius traveled to Texas in February 2006 to scout locations for a StenoMaster court reporting school. Aloysius admitted that she attended conventions in Texas on StenoMaster's behalf, and that she sold books and other materials at the StenoMaster booth at those Texas conventions. While in Texas, however, Aloysius contended that she did not "market in Texas" because "Mark's reputation made it impossible for me to do anything there." Aloysius also contended that, while she scheduled seminars in other states on behalf of StenoMaster, Kislingbury was responsible for setting up seminars in Texas. Aloysius did admit that, while in Texas to attend conventions, she discussed StenoMaster business and operations with Kislingbury. Aloysius also purchased equipment for StenoMaster in Colorado and shipped it to Kislingbury in Texas.

Aloysius leased space in her home in Colorado to StenoMaster, for which she was paid by StenoMaster from its Texas bank account. Although Aloysius performed many management and accounting tasks in Colorado, Aloysius and Kislingbury agreed that Kislingbury would prepare the company's tax returns in Texas.

Although she admits in her brief that she made seven trips to Texas, Aloysius contends that she has never been to Texas "on any occasion other than in my capacity as a representative of StenoMaster" and each trip she made to Texas was made "at the request of Mr. Kislingbury." Further, she affirmed that

[StenoMaster] does not have an office in Houston, Harris County or Texas. Its activities are/were conducted from Denver, Colorado. . . .

The agreement between the parties was in Denver, Colorado.

I am not a resident of the State of Texas and have had no purposeful contacts with this state. I do not conduct any business in Texas. I reside in Denver, Colorado and conduct all meaningful business of the subject corporation from Denver, Colorado. My alleged acts and activities that caused injury to Mr. Kislingbury did not occur in Texas. I did not purposefully direct my acts and activities to Texas, and plaintiff's cause of action did not arise from or relate to any of my alleged acts, omissions and/or contacts with Texas. Rather, plaintiff's cause of action arose from alleged wrongdoings by me as an officer of StenoMaster, Inc. All meaningful actions and activities on behalf of StenoMaster, Inc. were conducted in Denver, Colorado. I have also not had continuous or systematic contact with Texas.

This court's assumption of jurisdiction over me will cause significant burden on me.

. . . .

I know of no potential witnesses in this case in Texas other than Mr. Kislingbury.

I am a resident of Colorado and have been at all times relevant to this suit including the present. I operated StenoMaster out of three addresses all of them in Denver, Colorado. StenoMaster maintained its sole office in Colorado; therefore discovery into the income and expenses related to the operation of StenoMaster's office will involve vendors in Colorado, not Texas. All of the "related" corporations I operate are Colorado operations.

The Lawsuit

Kislingbury and StenoMaster filed suit against Aloysius in Harris County. Their pleadings alleged Kislingbury is a Texas resident, StenoMaster is a Colorado corporation doing business in Texas, and Aloysius is a Colorado resident. They further alleged the court had personal jurisdiction over Aloysius because she contracted with a Texas resident with performance in whole or part in Texas, and because she had committed a tort in Texas. Additionally, they alleged Aloysius had purposefully availed herself of the privileges and benefits of conducting business in Texas and she had sufficient minimum contacts with Texas to sustain jurisdiction.

Kislingbury and StenoMaster alleged that Aloysius had committed fraud, conversion, misappropriation, ultra vires acts and negligence, and that she had breached her fiduciary duties. Kislingbury also sued for breach of contract. According to Kislingbury, Aloysius had misappropriated StenoMaster funds from the Texas bank account by writing herself checks without his approval and she was unable to justify those expenditures. Kislingbury and StenoMaster also sought an accounting and the imposition of a constructive trust. They prayed for a declaratory judgment that Aloysius had committed ultra vires acts and that all actions taken by her on behalf of StenoMaster on or after January 1, 2007 were void. Aloysius filed a special appearance, contending that the court lacked jurisdiction over her. On August 8, 2008, the trial court denied Aloysius' initial special appearance. Shortly thereafter, on August 28, 2008, Aloysius filed a "First Amended Special Appearance or, Alternatively, Motion for Re-hearing of Defendant's Special Appearance." On September 23, 2008, the trial court granted Aloysius' special appearance. One week later, Kislingbury and StenoMaster filed a motion for reconsideration, which the trial court granted. The trial court also ordered that Aloysius be deposed on issues regarding personal jurisdiction. After her deposition, Aloysius filed a Second Amended Special Appearance. Kislingbury and StenoMaster filed a response to Aloysius' Second Amended Special Appearance, attaching affidavits and a transcript of Aloysius' deposition. The trial court ultimately denied Aloysius' Second Amended Special Appearance. Aloysius now brings this appeal.

ANALYSIS

I. Court of Appeals' Jurisdiction

We first address our own jurisdiction to address the various issues raised by Aloysius in this appeal. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (stating that reviewing court is obligated to review sua sponte issues affecting jurisdiction). In her briefing, Aloysius attempts to raise issues other than the trial court's denial of her special appearance, including the capacity of StenoMaster as a non-registered foreign corporation to maintain a lawsuit in Texas, the convenience of Texas as a forum for this case, an ongoing discovery dispute, whether Kislingbury and StenoMaster fail to state a claim against her, and what she describes as "sanctionable" conduct by Kislingbury and StenoMaster.

This Court only has jurisdiction to consider appeals from final judgments or orders, with very limited exceptions such as the denial of a special appearance. See, e.g., Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001); Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon 2008) (authorizing interlocutory appeals from denial of special appearance). Because the trial court has not signed a final judgment or order relating to the issues Aloysius raises in addition to the denial of her special appearance, we lack jurisdiction to reach these issues. See Tex. R. App. P. 42.3(a). We next turn to the trial court's denial of Aloysius' special appearance.

II. Aloysius' Special Appearance

A. Standard of Review

The existence of personal jurisdiction is a question of law reviewed de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). However, this question must sometimes be preceded by resolving underlying factual disputes. Id. When, as here, the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in favor of its ruling. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).

B. Personal Jurisdiction

"Texas courts may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards." Id. (citing Guardian Royal Exch. Assur. Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991); see Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041-.045 (Vernon 2008) (Texas's long-arm statute). The long-arm statute allows Texas courts to exercise jurisdiction over a nonresident defendant that "does business" in the state. Tex. Civ. Prac. & Rem. Code Ann. § 17.042.

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:

(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;

(2) commits a tort in whole or in part in this state; or

(3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

Id. This list, however, is not exhaustive. BMC Software, 83 S.W.3d at 795. The Texas Supreme Court has held that "section 17.042' s broad language extends Texas courts' personal jurisdiction as far as the federal constitutional requirements of due process will permit." Id. (citation omitted).

Personal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Id. A nonresident defendant's minimum contacts must derive from purposeful availment: a nonresident defendant must have "purposefully availed" itself of the privileges and benefits of conducting business in the foreign jurisdiction to establish sufficient contacts with the forum to confer personal jurisdiction. Id.; Xenos Yuen v. Fisher, 227 S.W.3d 193, 200 (Tex. App.-- Houston [1st Dist.] 2007, no pet.). An act or acts "by which the defendant purposefully avails itself of the privilege of conducting activities" in Texas and "thus invok[es] the benefits and protections" of Texas law constitutes sufficient contact with Texas to confer personal jurisdiction. Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (emphasis in original) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240 (1958)).

We consider three elements of purposeful availment. See Michiana, 168 S.W.3d at 785. First, we consider only the defendant's own actions, not those of the plaintiff or any other third party. Id. Second, the activities must be purposeful, not random, isolated, or fortuitous. Id. "It is the quality, rather than the quantity of the contacts that is determinative." First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 782 (Tex. App.--Houston [1st Dist.] 2008, pet. denied). Third, the defendant must seek some benefit, advantage, or profit by virtue of its activities in the proposed forum state, because this element is based on the notion of implied consent. Michiana, 168 S.W.3d at 785.

Our jurisdictional analysis is further divided into general and specific personal jurisdiction. CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996). General jurisdiction will attach when "a defendant's contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state." Id. To support general jurisdiction, the defendant's forum activities must have been "substantial," which requires stronger evidence of contacts than for specific personal jurisdiction. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 114 (Tex. App.--Houston [1st Dist.] 2000, pet. dism'd w.o.j.). General jurisdiction is premised on the nonresident having consented to jurisdiction through its continuous contact invoking the benefits and protections of Texas law. Am. Type Culture Collection, 83 S.W.3d at 808. This analysis focuses on the nature and quality of the contacts, as opposed to the quantity. Id. at 810.

Specific jurisdiction lies when the defendant's alleged liability arises from or is related to an activity conducted within the forum. BMC Software, 83 S.W.3d at 796. "[F]or 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." Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007). This requirement assesses "the strength of the necessary connection between the defendant, the forum, and the litigation." Id. at 584.

Initially, the plaintiff bears the burden of pleading allegations sufficient to bring a nonresident defendant within the terms of the Texas long-arm statute. Am. Type Culture Collection, 83 S.W.3d at 807. However, when a nonresident defendant files a special appearance, that defendant assumes the burden of negating all bases of personal jurisdiction that the plaintiff has alleged. Id. The plaintiff's original pleadings as well as its response to the defendant's special appearance can be considered in determining whether the plaintiff satisfied its burden. Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 249 n.7 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). Further, Rule 120a states that courts may consider evidence from "the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony." Tex. R. Civ. P. 120a(3); see also Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 273 (Tex. App.--San Antonio 2002, pet. dism'd).

C. Minimum Contacts

Aloysius appears to contend that the trial court lacked jurisdiction over her because all of her actions in Texas or directed to Texas were related to her capacity as a representative of StenoMaster. To that end, we construe Aloysius' brief as an attempt to assert the fiduciary shield doctrine.

The fiduciary shield doctrine protects a corporate officer or employee from the exercise of general personal jurisdiction when all of the contacts with Texas were on behalf of his employer. Wright, 137 S.W.3d at 250. Texas courts applying the fiduciary shield doctrine have limited its application to attempts to exercise general jurisdiction over a nonresident defendant. Id. It does not protect a corporate officer from specific personal jurisdiction as to intentional torts or fraudulent acts. Id.; see also SITQ E.U., Inc. v. Reata Rests., Inc., 111 S.W.3d 638, 650-51 (Tex. App.--Fort Worth 2003, pet. denied) (nonresident officer of foreign corporation subject to personal jurisdiction where officer participated in decision to terminate tenants' leases while directing others to assure tenants building would be rebuilt); 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.) (nonresident officers of corporation subject to jurisdiction in Texas in suit by shareholders of that corporation for fraud, negligent misrepresentation, breach of fiduciary duty and conspiracy); Smith v. Lanier, 998 S.W.2d 324, 334-35 (Tex. App.--Austin 1999, pet. denied) ("[a]n agency relationship does not shield an individual from jurisdictional contacts with a state . . . ."). Further, the crux of the allegations against Aloysius is that she individually committed torts and breaches of the StenoMaster Agreement against StenoMaster and Kislingbury, not merely that she is an officer or director of StenoMaster. See, e.g., Eagle Metal Prods. v. Keymark Enters., 651 F.Supp.2d 577, 586 (N.D. Tex. 2009) (noting that claims against CEO were against him individually, not as agent, and fiduciary shield doctrine therefore did not apply). We therefore find that the fiduciary shield doctrine is not applicable in this case to prevent the exercise of jurisdiction over Aloysius.

1. General Jurisdiction

Kislingbury and StenoMaster argue that the trial court had both general and specific jurisdiction over Aloysius. The "minimum contacts inquiry is broader and more demanding when general jurisdiction is alleged, requiring a showing of substantial activities in the forum state." Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). We recently analyzed the requirements for general jurisdiction in Capital Finance & Commerce, AG v. Sinopec Overseas Oil & Gas, Ltd., 260 S.W.3d 67 (Tex. App.--Houston [1st Dist.] 2008, no pet.). In Capital Finance, we noted that general jurisdiction is "dispute-blind" and requires a showing that the defendant conducted "substantial activities" in Texas. Id. at 80. We therefore examine Aloysius' activities in Texas to determine if they satisfy this requirement.

The record shows that Aloysius' contacts with the State of Texas are limited to her business relationship with StenoMaster and Kislingbury--she does not own property or generally transact business in the state. She does not personally have any bank accounts or offices in the state, nor does she travel to Texas for personal reasons. Instead, the record shows that all of her activities in or directed at Texas have been limited to involvement with StenoMaster and Kislingbury. When we consider those facts in contrast with the fact that she is a Colorado resident and conducts most of her business in locations other than Texas, we cannot conclude that her contacts with Texas are the kind of "substantial activities" necessary for the exercise of general jurisdiction over her.

2. Specific Jurisdiction

In the context of specific jurisdiction, the minimum contacts analysis focuses on the relationship between the defendant, the forum, and the litigation. Kelly v. Gen. Interior Constr., No. 08-0669, 2010 WL 143985 at *3 (Tex. January 15, 2010); IRA Res., Inc. v. Griego, 221 S.W.3d 592, 596 (Tex. 2007); Moki Mac, 221 S.W.3d at 575-76.

We first determine whether minimum contacts exist. Moki Mac, 221 S.W.3d at 576 ("Before deciding whether Moki Mac's liability arose from or related to its forum contacts, we must first examine the nature of those contacts and whether Moki Mac purposefully availed itself of the privilege of conducting business here."). Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant "purposefully avails" itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240 (1958); IRA Res., 221 S.W.3d at 596; Michiana, 168 S.W.3d at 784. Purposeful availment is the "touchstone of jurisdictional due process." IRA Res., 221 S.W.3d at 596; Michiana, 168 S.W.3d at 784.

A. Purposeful Availment

To determine "purposeful availment" we look at only the defendant's purposeful contacts, excluding those that are random, isolated, or fortuitous. Michiana, 168 S.W.3d at 785. We determine whether the defendant sought some benefit, advantage, or profit by "availing" itself of the jurisdiction, thus impliedly consenting to its laws. Moki Mac, 221 S.W.3d at 578.

Aloysius was engaged in an ongoing business relationship with Kislingbury, whom she knew to be a Texas resident and whom she knew to be performing many of his obligations in Texas. Aloysius and Kislingbury negotiated and amended the Agreement through which StenoMaster was formed over the telephone while Kislingbury was in Texas, and Aloysius was aware that he was in Texas. The Agreement required her to consult with Kislingbury in Texas and obtain his consent for company expenditures. Even though the corporation they formed was a Colorado corporation, a significant portion of its business was performed in Texas by both Kislingbury and also by Aloysius, who admitted traveling to Texas on numerous occasions to represent StenoMaster and transact business on its behalf. Aloysius and Kislingbury both testified that they would discuss StenoMaster business on Aloysius' trips to Texas. Further, StenoMaster's only bank account, from which all payments were made and all disbursements received, was in Texas. Aloysius sent the Texas bank a signed signature card as part of starting up StenoMaster's operations, and she received and reconciled StenoMaster's bank statements from the Texas bank on a regular basis. Finally, Aloysius admitted purchasing equipment for Kislingbury and StenoMaster in Colorado and sending that equipment to Texas.

On these facts, examining only Aloysius' purposeful contacts with Texas, excluding those that are random, isolated, or fortuitous, we find that Aloysius availed herself of Texas and thus impliedly consented to its laws. Moki Mac, 221 S.W.3d at 578; IRA Res., 221 S.W.3d at 596; Michiana, 168 S.W.3d at 785.

B. Substantial Connection

Purposeful availment alone will not support an exercise of specific jurisdiction. Moki Mac, 221 S.W.3d at 579. Instead, to support specific jurisdiction, there must also be a substantial connection between the defendant's forum contacts and the operative facts of the litigation. Id. at 585; Kelly, 2010 WL 143985 at *3.

Here, the causes of action asserted by Kislingbury and StenoMaster relate directly to Aloysius' alleged fraud and mismanagement of the company's Texas bank account, and her failure to consult with and inform Kislingbury in Texas regarding business decisions and expenditures. These alleged acts of fraud and malfeasance involved the operation of a business that she ran with a Texas resident, using money from and access to the company's sole bank account in Texas, and many of her alleged acts involved information, equipment and funds being transmitted to or from Texas. Further, the pleadings and evidence establish that Aloysius traveled to Texas on much of the StenoMaster business at issue in this lawsuit, and that she and Kislingbury formed and amended the StenoMaster Agreement at the heart of the lawsuit while she knew Kislingbury to be in Texas and that he would perform many, if not all, of his contractual obligations in Texas. In light of these facts and the allegations raised in the pleadings, we find that there is a "substantial connection between [Aloysius' purposeful contacts] and the operative facts of the litigation." Id. Unlike in Moki Mac and Kelly, Kislingbury's lawsuit is directly related to Aloysius' alleged embezzlement of funds in Texas. See Moki Mac, 221 S.W.3d at 584 (finding that parent's suit over son's death during rafting trip in Arizona would primarily involve evidence regarding the events of that trip, rather than misrepresentations rafting company made in Texas, and required nexus between rafting company's activities in Texas and parent's misrepresentation lawsuit was therefore lacking); Kelly, 2010 WL 143985 at *4 (holding that personal jurisdiction over Arizona residents improper because suit over construction trust funds failed to allege acts giving rise to claims that occurred within Texas and plaintiffs never brought forth evidence establishing requisite link to Texas).

D. Fair Play and Substantial Justice

We now turn to whether the exercise of personal jurisdiction over Aloysius comports with traditional notions of fair play and substantial justice. See Guardian Royal, 815 S.W.2d at 226. In making this determination, we consider the following factors: (1) the burden on the defendants; (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 interest of the several states in furthering fundamental, substantive social policies. Id. at 228. Only in rare cases will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts in the forum state. Guardian Royal, 815 S.W.2d at 231; see also Schlobohm, 784 S.W.2d at 358 ("Because the minimum contacts analysis now encompasses so many considerations, it has become less likely that the exercise of jurisdiction will fail a fair play analysis.").

Aloysius argues that litigating in Texas would place an unfair burden on her because she lives in Colorado, many of the records at issue are located in Colorado, and because many of her witnesses reside in Colorado. Distance from the forum is generally not sufficient to defeat jurisdiction because the availability of "modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201 (1957); see also Glencoe Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157, 168 (Tex. App.--Fort Worth 2008, no pet.) (same). Further, Texas has a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. See Burger King Corp. v Rudzewicz, 471 U.S. 462, 479-83, 105 S.Ct. 2174, 2185-88. Although StenoMaster was incorporated in Colorado, Kislingbury is a Texas resident and much of StenoMaster's business was conducted here. Even Aloysius admits traveling to Texas on several occasions to conduct business for StenoMaster.

Considering these facts, and the facts outlined above, we cannot say that the exercise of personal jurisdiction over Aloysius by the trial court would offend the traditional notions of fair play and substantial justice. Accordingly, we overrule Aloysius' contention that the trial court erred by denying her special appearance.

CONCLUSION

We overrule Aloysius' complaint that the trial court erred by denying her special appearance. We dismiss all other issues in her appeal for lack of jurisdiction.

We affirm the trial court's order denying Aloysius' special appearance.

All pending motions are denied.

George C. Hanks, Jr.

Justice

Panel consists of Justices Jennings, Hanks and Bland.

1. Aloysius disputes that she contacted Kislingbury, stating instead that he contacted her about starting a new company in 2003.

2. Aloysius contends that she and Kislingbury first broached the subject in Nevada, not Colorado.

3. This proportion of ownership was later amended to a 70-30 split. Kislingbury and Aloysius agreed to this amendment in a telephone conversation while he was in Texas and she was in Colorado.