COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-462-CV
MOUNTAIN STATES EMPLOYERS APPELLANTS COUNCIL, INC. AND S. LORRIE RAY
V.
COBB MECHANICAL CONTRACTORS, APPELLEE INC.
------------
FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
This is an interlocutory appeal by Appellants Mountain States Employers
Council, Inc. and S. Lorrie Ray from the trial court’s order denying their special
appearance in a legal malpractice action filed by Appellee Cobb Mechanical
1 … See T EX. R. A PP. P. 47.4. Contractors, Inc. (“CMC”).2 For the reasons set forth below, we will affirm the
trial court’s order.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Mountain States is a Colorado nonprofit corporation. Employers may
become “members” of Mountain States by completing an application and
paying dues. Mountain States then assists its members with employment and
labor matters. Mountain States’s principal employees are licensed attorneys,
one of whom was S. Lorrie Ray, an individual residing in Colorado. CMC was
a member of Mountain States.
CMC is a Colorado corporation with its principal place of business in
Colorado Springs, Colorado. In 1993 and 1994, CMC performed mechanical
work for two prisons being built in Potter County, Texas, and Dallam County,
Texas. The United Association of Plumbers and Pipe Fitters, Local Union No.
196, AFL-CIO filed an unfair labor practice charge with the National Labor
Relations Board (NLRB), asserting that CMC had violated the Labor Management
Relations Act by engaging in unfair hiring practices at the two Texas prison
construction sites. The NLRB in Fort Worth, Texas, issued a complaint and a
notice of hearing.
2 … See T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(7) (Vernon Supp. 2007).
2 About three months after the complaint issued, CMC engaged the
services of Appellants to represent CMC in the NLRB proceeding. Appellants
provided legal representation to CMC in connection with the Texas NLRB
proceeding, including the pretrial investigation in Texas, the filings of briefs and
other legal documents in Texas, and representation at the administrative trial
before an administrative law judge (ALJ) in Amarillo, Texas, from November 8
through 10, 1994.
The ALJ ultimately rendered a decision adverse to CMC, concluding that
CMC had committed unfair labor practices. The ALJ decision stated that “[i]f
no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommend[ations] Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.” Although
Appellants—on behalf of CMC—prepared exceptions to the ALJ decision, the
exceptions were not timely filed, and the NLRB subsequently adopted the ALJ’s
findings and conclusions because no statement of exceptions had been timely
filed.
Appellants—again on behalf of CMC—filed a motion for reconsideration
of the NLRB order. The NLRB declined reconsideration, and Appellants—on
behalf of CMC— pursued a variety of legal remedies and compliance-phase
3 appeals and hearings for the next ten years. As a result, the NLRB proceeding
took approximately eleven years to resolve and was finally settled in December
2005. Ultimately, CMC was ordered to pay certain sums to various individuals,
plus interest and FICA withholding.
CMC brought the underlying legal malpractice action against Appellants
in Texas state court for their alleged negligence in failing to adequately and
properly represent CMC at the NLRB trial in Amarillo and for their failure to
timely file a statement of exceptions to the ALJ decision. Appellants responded
by filing a special appearance.
Based on the agreement of the parties,3 the trial court ruled on
Appellants’ special appearance without an evidentiary hearing, after considering
the live pleadings, Appellants’ special appearance, CMC’s response, Appellants’
supplemental briefing in support of their special appearance, and CMC’s
response to Appellants’ supplemental briefing. The trial court denied
Appellants’ special appearance. Appellants requested findings of fact and
conclusions of law, but the record contains none. Appellants perfected this
3 … The record reflects that the trial court heard argument on the special appearance, recessed the hearing to permit the parties to file additional briefing and proof, and stated it would rule on the special appearance when the parties informed the trial court that they had filed everything necessary.
4 interlocutory appeal challenging the trial court’s denial of their special
appearance.
III. A FFIDAVIT O BJECTION N OT P RESERVED
In their third issue, Appellants claim that the trial court abused its
discretion if it considered the affidavit of CMC’s President Tom Cobb in
deciding to deny Appellants’ special appearance. Appellants argue that
statements in Cobb’s affidavit are conclusory and that Cobb is not qualified or
competent to testify about the standard of care for Appellants’ representation
of Cobb before the NLRB.
Appellants’ complaints concerning Cobb’s affidavit are not preserved for
our review. Approximately one week before the special appearance hearing,
CMC filed a second amended original petition and a response to Appellants’
special appearance. Cobb’s affidavit was attached to CMC’s response.
Appellants subsequently filed supplemental briefing in support of their special
appearance and argued, in part, that “[w]hile these ‘new’ amended allegations
are clearly intended to suggest that [Appellants] may now have engaged in
potential tortious conduct in Texas, they are nothing more than bald, conclusory
statements that should be disregarded by the Court.” [Emphasis in original.]
This statement in Appellants’ supplemental briefing is directed at the amended
allegations in CMC’s second amended petition, not at Cobb’s affidavit. Cobb’s
5 affidavit is not mentioned. Nonetheless, this is the objection that Appellants
rely on in making their arguments on appeal concerning Cobb’s affidavit.
The record does not indicate that an objection to Cobb’s affidavit, as
opposed to CMC’s second amended original petition, was ever specifically
called to the trial court’s attention or ruled upon. Under these circumstances,
we hold that Appellants’ objection to Cobb’s affidavit was not preserved for our
review. See T EX. R. A PP. P. 33.1(a)(2); Int’l Turbine Serv., Inc. v. Lovitt, 881
S.W.2d 805, 808 (Tex. App.—Fort Worth 1994, writ denied).
Moreover, Appellants’ objection to Cobb’s affidavit—that Cobb is not
qualified or competent to testify about the standard of care for Appellants’
representation of Cobb before the NLRB—might have merit in a summary
judgment proceeding; in the special appearance context, however, the issue is
Mountain States’s and Ray’s contacts with Texas, which Cobb may and did
testify to based on his personal knowledge. See T EX. R. C IV. P. 120a(3). Thus,
if Mountain States’s and Ray’s appellate objection to Cobb’s affidavit had been
made and brought to the trial court’s attention, the trial court would not have
erred by overruling their objection because the objection is invalid in this
context.
We overrule Appellants’ third issue.
6 IV. D ENIAL OF S PECIAL A PPEARANCE
In their first and second issues, Appellants complain that the trial court
erred by denying their special appearance. Specifically, Appellants challenge
the legal and factual sufficiency of the evidence to support the trial court’s
order denying their special appearance.
A. Personal Jurisdiction
A Texas court may assert personal jurisdiction over a nonresident
defendant if the requirements of the Texas long-arm statute and due process
under the Fourteenth Amendment are satisfied. U.S. C ONST. amend. XIV, § 1;
T EX. C IV . P RAC. & R EM. C ODE A NN. §§ 17.041–.045 (Vernon 1997 & Supp.
2007); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
413–14, 104 S. Ct. 1868, 1871–72 (1984); Moki Mac River Expeditions v.
Drugg, 221 S.W.3d 569, 574 (Tex. 2007); CSR Ltd. v. Link, 925 S.W.2d 591,
594 (Tex. 1996) (orig. proceeding); TravelJungle v. Am. Airlines, Inc., 212
S.W.3d 841, 845 (Tex. App.—Fort Worth 2006, no pet.); Michel v. Rocket
Eng’g Corp., 45 S.W.3d 658, 668 (Tex. App.—Fort Worth 2001, no pet.).
The Texas long-arm statute permits Texas courts to exercise jurisdiction
over a nonresident defendant who “does business” in Texas. T EX. C IV. P RAC.
& R EM. C ODE A NN . § 17.042; BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 795 (Tex. 2002); TravelJungle, 212 S.W.3d at 845; SITQ, E.U.,
7 Inc. v. Reata Rests., Inc., 111 S.W.3d 638, 645 (Tex. App.—Fort Worth 2003,
pet. denied). The statute lists some activities that constitute “doing business,”
including the commission of a tort, in whole or in part. T EX. C IV. P RAC. & R EM.
C ODE A NN. § 17.042; TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at
645. The list of activities set forth in section 17.042 is not exclusive,
however. BMC Software, 83 S.W.3d at 795; TravelJungle, 212 S.W.3d at
845. Section 17.042’s broad language extends Texas courts’ personal
jurisdiction only “as far as the federal constitutional requirements of due
process will permit.” BMC Software, 83 S.W.3d at 795 (quoting U-Anchor
Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977), cert. denied, 434 U.S.
1063 (1978)); TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at 645.
Due process is satisfied when (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. Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945); BMC Software,
83 S.W.3d at 795; TravelJungle, 212 S.W.3d at 846; Reata, 111 S.W.3d at
645.
A nonresident defendant who has “purposefully availed” itself of the
privileges and benefits of conducting business in a foreign jurisdiction has
sufficient contacts with the forum to confer personal jurisdiction on a court in
8 that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–76, 105 S.
Ct. 2174, 2183 (1985); BMC Software, 83 S.W.3d at 795; TravelJungle, 212
S.W.3d at 846.
Three factors are important in determining whether a defendant has
purposefully availed itself of the forum: first, only the defendant’s contacts
with the forum count; second, the acts relied on must be purposeful rather than
merely fortuitous; and third, the defendant must seek some benefit, advantage,
or profit by availing itself of the forum. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 785 (Tex. 2005); Karstetter v. Voss, 184 S.W.3d
396, 403 (Tex. App.—Dallas 2006, no pet.); TravelJungle, 212 S.W.3d at 846.
Personal jurisdiction exists if the nonresident defendant’s minimum
contacts give rise to either specific jurisdiction or general jurisdiction.
Helicopteros Nacionales de Colombia, 466 U.S. at 413–14, 104 S. Ct. at 1872;
BMC Software, 83 S.W.3d at 795; TravelJungle, 212 S.W.3d at 846; Reata,
111 S.W.3d at 646. A trial court has general jurisdiction over a nonresident
defendant when that defendant’s contacts in a forum are continuous and
systematic so that the forum may 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. BMC Software, 83 S.W.3d at 796;
TravelJungle, 212 S.W.3d at 846; Reata, 111 S.W.3d at 646. In contrast,
9 specific jurisdiction is present if the nonresident defendant’s alleged liability
arises from or is related to an activity conducted within the forum. BMC
Software, 83 S.W.3d at 796; TravelJungle, 212 S.W.3d at 846–47; Reata,
111 S.W.3d at 646. When a plaintiff asserts that a trial court has specific
jurisdiction over a nonresident defendant, the minimum contacts analysis
focuses on the relationship among the defendant, the forum, and the litigation.
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815
S.W.2d 223, 227–28 (Tex. 1991); TravelJungle, 212 S.W.3d at 847; Reata,
111 S.W.3d at 646.
B. Standard of Review
Whether a trial court has personal jurisdiction over a defendant is a
question of law. BMC Software, 83 S.W.3d at 793; TravelJungle, 212 S.W.3d
at 845; Reata, 111 S.W.3d at 644. The plaintiff bears the initial burden of
pleading sufficient allegations to bring a nonresident defendant within the
provisions of the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574; BMC
Software, 83 S.W.3d at 793; TravelJungle, 212 S.W.3d at 845; Reata, 111
S.W.3d at 644. A nonresident defendant challenging a Texas court’s personal
jurisdiction over it must negate all jurisdictional bases. BMC Software, 83
S.W.3d at 793; TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at 644.
10 Where, as here, the trial court does not enter express findings of fact and
conclusions of law regarding its ruling on a special appearance, the reviewing
court infers all fact findings necessary to support the judgment that are
supported by the evidence. BMC Software, 83 S.W.3d at 794–95. These
implied findings may be challenged for legal and factual sufficiency. Id.;
TravelJungle, 212 S.W.3d at 845; Michel, 45 S.W.3d at 668. Once it is
determined that the trial court’s findings are supported by sufficient evidence,
or if the material facts are undisputed, the reviewing court decides as a matter
of law whether those facts negate all bases for personal jurisdiction. BMC
Software, 83 S.W.3d at 794–95.
Under the legal sufficiency standard of review, we view the evidence in
the light most favorable to the challenged finding and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). We must credit favorable evidence if a reasonable fact-finder
could and disregard contrary evidence unless a reasonable fact-finder could not.
Id. at 827. There is legally insufficient evidence or “no evidence” of a vital fact
when (a) there is a complete absence of evidence of a vital fact, (b) the court
is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no
more than a mere scintilla, or (d) the evidence conclusively establishes the
11 opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998). More than a
scintilla of evidence exists to support a finding if the evidence would allow
reasonable and fair-minded people to differ in their conclusions. Id.
In reviewing the factual sufficiency of the evidence, we consider and
weigh all of the evidence in the record, and we may overturn a judgment only
if it is so against the great weight and preponderance of the evidence as to be
clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985).
The scope of our review includes all evidence before the trial court on the
issue of personal jurisdiction. TravelJungle, 212 S.W.3d at 845; Reata, 111
S.W.3d at 645; Michel, 45 S.W.3d at 667; see also Hotel Partners v. Craig,
993 S.W.2d 116, 121 (Tex. App.—Dallas 1994, writ denied) (stating that “[i]n
determining whether [defendants] carried this burden” of negating all bases of
personal jurisdiction, “we review all the evidence that was before the trial
court”). The trial court here, based on the agreement of the parties, ruled on
Appellants’ special appearance without an evidentiary hearing after considering
the live pleadings, Appellants’ special appearance, CMC’s response, Appellants’
supplemental briefing in support of their special appearance, CMC’s response
12 to Appellants’ special appearance, and documents attached to these items.
Consequently, we review these filings.
C. CMC’s Allegations and Evidence of Specific Personal Jurisdiction
CMC’s second amended original petition, which the trial court expressly
indicated that it had considered in ruling on Appellants’ special appearance,
alleged that the trial court possessed specific jurisdiction over Appellants
because their contacts with the State of Texas were purposeful and the cause
of action asserted arose from or relates to those contacts:
• Appellants agreed to represent CMC in connection with a complaint initiated by the Region 16 Director of the NLRB in Fort Worth, Texas, relating to job sites in Amarillo and Dalhart, Texas;
• In connection with the NLRB proceeding, Appellants filed an answer to the complaint with the NLRB in Fort Worth, Texas;
• In connection with the NLRB proceeding, Appellants made an appearance in the proceeding in Fort Worth, Texas;
• In connection with the NLRB proceeding, Appellants personally appeared in the State of Texas to represent CMC at a trial in Amarillo that occurred from November 8 through 10, 1994;
• In connection with the NLRB proceeding, Appellants personally appeared in the State of Texas to interview witnesses prior to trial;
• In connection with the NLRB proceeding, Appellants made multiple telephone calls to representatives of the NLRB in Texas;
• In connection with the NLRB proceeding, Appellants made multiple telephone calls to persons other than the NLRB;
13 • In connection with the NLRB proceeding, Appellants requested the issuance by the NLRB of subpoenas for witnesses to appear at the trial in Amarillo, Texas; and
• In connection with the NLRB proceeding, Appellants filed numerous pleadings and other matters with the NLRB in Fort Worth, Texas.
D. Appellants’ Special Appearance and Supplemental Briefing
Appellants’ special appearance alleged that specific jurisdiction did not
exist. Appellants argued that their representation of CMC evolved from the
membership agreement that was executed in Colorado. Appellants also
contend that their representation of CMC before a federal agency in Texas,
rather than a Texas state court, falls short of the “purposeful availment”
requirement. And finally, Appellants argue on appeal that the crux of CMC’s
malpractice claim concerns the untimely exceptions and point out that the
exceptions were drafted in Colorado for filing in Washington, D.C.
In Ray’s affidavit, which was attached in support of Appellants’ special
appearance, she averred that all research, preparations, pleadings, and
correspondence pertaining to the NLRB proceeding originated in Mountain
States’s offices in Denver and that her contact with CMC occurred with
personnel located at CMC’s offices in Colorado Springs, Colorado. Ray
admitted that she attended the hearing before the ALJ in November 1994. Ray
stated that after the ALJ decision was rendered, she prepared exceptions at the
14 Denver office and sent them to the NLRB in Washington, D.C., via overnight
mail. Ray concluded her affidavit by stating that she had not visited Texas as
a representative of Mountain States for any reason other than the hearing in
1994.
Appellants’ supplemental briefing in support of their special appearance
claims that CMC “goes to great lengths to stretch the number of perceived
specific jurisdictional contacts [Appellants] have with the State of Texas” but
that their allegations exclusively relate to the three-day NLRB hearing in Texas.
Appellants contend that this “case is, and has always been, about [Appellants’]
alleged failure to timely file exceptions with the NLRB in Washington, D.C.”
E. Specific Jurisdiction Analysis
CMC bore the initial burden of pleading sufficient facts to invoke personal
jurisdiction over Appellants under the Texas long-arm statute. Moki Mac, 221
S.W.3d at 574 (citing Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d
801, 807 (Tex. 2002), cert. denied, 537 U.S. 1191 (2003)). Appellants then
had the burden of negating all forms of personal jurisdiction that CMC alleged.
Id.
Here, the facts pleaded by CMC, and indeed not disputed by Appellants,
establish that Mountain States, through its attorneys including Ray, provided
legal representation in connection with the NLRB proceeding before an ALJ of
15 the NLRB in a commissioner’s courtroom in Amarillo, Texas. The proceeding
concerned alleged unfair employment practices that had occurred in Texas.
There is no evidence in the record that Appellants associated local counsel;4
instead, Appellants traveled to Texas to investigate the claims, interviewed
witnesses in Texas, filed pleadings and documents in Texas, obtained
subpoenas from the NLRB in Texas, and made phone calls to Texas. As
previously mentioned, CMC sued Appellants in Texas for alleged legal
malpractice arising out of Appellants’ legal representation of CMC in the Texas
NLRB proceeding.
Allegations that a nonresident defendant did business in Texas by
committing a tort (such as legal malpractice), in whole or in part, in Texas are
sufficient to satisfy the literal language of the Texas long-arm statute but not
due process concerns. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 17.042(2);
Moki Mac, 221 S.W.3d at 574–75; Michiana, 168 S.W.3d at 788;
TravelJungle, 212 S.W.3d at 849. The Texas long-arm statute will reach as far
as the federal constitutional requirements of due process allow. Moki Mac, 221
4 … In fact, Mountain States’s website advertises that it provides employment law services to its members, including representation before any state or federal administrative agency, and that they represent their members where the action takes place. Mountain States Employers Council, Inc., http://www.msec.org (last visited June 26, 2008).
16 S.W .3d at 575 (citing Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at
226). Thus, we next analyze whether, here, in this case, Texas’s exercise of
personal jurisdiction over Appellants is limited by due process concerns.
As previously mentioned, federal due process requirements limit a state’s
power to assert personal jurisdiction over a nonresident defendant; personal
jurisdiction is proper when (1) the nonresident 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. Moki Mac,
221 S.W.3d at 575. We thus proceed to a minimum contacts analysis. Here,
Appellants purposefully availed themselves of the privilege of conducting
activities (legally representing CMC) in Texas. Appellants invoked the benefits
and protections of Texas law by interviewing witnesses, filing legal documents,
and obtaining the issuance of subpoenas. These contacts with Texas were the
contacts of Appellants, not the unilateral activity of another party or a third
person. These contacts by Appellants with Texas were purposeful, not
random, fortuitous, or attenuated. And Appellants sought some benefit—here
the providing of services to its paid members—by availing themselves of the
opportunity to represent its members in Texas. See, e.g., Jackson v. Kincaid,
122 S.W.3d 440, 449–50 (Tex. App.—Corpus Christi 2003, pet. granted,
judgm’t vacated w.r.m.) (holding that Texas court possessed specific
17 jurisdiction over nonresident attorney defendant); see also Tempest Broad.
Corp. v. Imlay, 150 S.W.3d 861, 876 (Tex. App.—Houston [14th Dist.] 2004,
no pet.) (same); Rowland & Rowland, P.C. v. Tex. Employers Indem. Co., 973
S.W.2d 432, 436 (Tex. App.—Austin 1998, no pet.) (same).
We next address the “arise from or relate to” requirement of specific
jurisdiction. Moki Mac, 221 S.W.3d at 579–80. Appellants claim that their
actions in Texas do not arise from and are not related to CMC’s causes of
action against it because CMC’s causes of action against it actually arise from
CMC’s membership contract with Mountain States. 5 Appellants claim that the
5 … In support of their no-specific-jurisdiction-exists arguments, Appellants cite several legal malpractice cases, including Markette v. X-Ray X-Press Corp., 240 S.W.3d 464, 468–69 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that Texas client did not plead facts sufficient to give rise to specific jurisdiction because Indiana attorney and firm, who were hired to represent Texas client in action pending in Indiana, were not substantially connected to the operative facts of the litigation by merely giving legal advice about Texas law); Klenk v. Bustamante, 993 S.W.2d 677, 679–81, 683 (Tex. App.—San Antonio 1998, no pet.), abrogated on other grounds by BMC Software, 83 S.W.3d 789 (holding that assertion of jurisdiction over in-house counsel from Smith Barney’s New York headquarters was improper as a matter of law where, at most, the attorneys engaged in long-distance communication from New York with the Texas appellee, who was a former employee of Smith Barney); Shearson Lehman Bros., Inc. v. Hughes, Hubbard, & Reed, 902 S.W.2d 60, 63, 65–66 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (holding that Los Angeles firm’s contacts with Texas were inadequate to establish specific jurisdiction because client’s claims against firm did not arise as a result of firm’s contacts with Texas during security registration process), cert. denied, 517 U.S. 1245 (1996); Geo-Chevron Ortiz Ranch #2 v. Woodworth, No. 04-06- 00412-CV, 2007 WL 671340, at *3 (Tex. App.—San Antonio Mar. 7, 2007,
18 contract was entered into between Colorado residents in Colorado and that
CMC’s claims should be litigated in Colorado. CMC’s pleadings, however,
clearly state a cause of action for legal malpractice by alleging that Defendants
“negligently failed to defend and advise Plaintiff with respect to the NLRB
proceedings, including the compliance proceedings.” The trial court did not
abuse its discretion by construing CMC’s pleadings as pleading a tort cause of
action or by rejecting Appellants’ attempts to recast CMC’s claims purely as
one for breach of contract.
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. Moki Mac, 221 S.W.3d at
584–85. Appellants agreed to represent CMC at an NLRB proceeding in Texas
and their alleged legal malpractice occurred during the course of that
representation. There is a substantial connection between Appellants’ contacts
with Texas and the operative facts of the litigation. See, e.g., Tempest Broad.
Corp., 150 S.W.3d at 876 (holding that nonresident defendant attorney’s
pet. denied) (mem. op.) (holding that attorney and law firm’s sporadic contacts of two litigation-related trips to Texas and communications by telephone were not sufficient to confer general jurisdiction where litigation occurred in Georgia). As is apparent from the preceding parentheticals, each case cited by Appellants is factually distinguishable from the present case.
19 representations in Texas that formed the basis of plaintiff’s misrepresentation
and tortious interference with contract claims supported trial court’s exercise
of specific jurisdiction).
Appellants also claim that the relatedness requirement between
Appellants’ contacts and CMC’s claims is lacking because (1) the heart of
CMC’s legal malpractice claim involves Appellants’ alleged failure to timely file
exceptions, and the exceptions were prepared in Colorado to be filed in
Washington, D.C.; and (2) it was CMC’s actions in engaging in an unfair labor
practice that resulted in the proceeding in Texas, not Appellants’ actions, and
thus Appellants cannot be said to have chosen Texas as a forum. The Corpus
Christi Court of Appeals addressed arguments similar to those raised by
Appellants in Jackson v. Kincaid. 122 S.W .3d at 449–50. In Jackson,
Oklahoma lawyers provided legal representation in connection with their clients’
bankruptcy proceedings in a Texas federal bankruptcy court. Id. at 444, 448.
The Oklahoma lawyers appeared in bankruptcy court in Texas on their clients’
behalf and also conducted telephone hearings and prepared and transmitted to
Texas a mediation settlement. Id. at 446. The clients sued their Oklahoma
lawyers in Texas, alleging a cause of action for legal malpractice, among others.
Id. at 444. In filing their special appearance, the Oklahoma lawyers argued that
the bulk of the legal representation that they provided in connection with the
20 bankruptcy was performed in Oklahoma and that they did not have a choice
about the forum, which their clients had chosen. Id. at 449–50.
The Jackson court stated that the Oklahoma lawyers had a choice about
whether to represent their clients in Texas, that the Oklahoma lawyers chose
to do so, and that they were—via their special appearance—seeking to avoid
the consequences of that choice. Id. at 450. The Jackson court thus
determined that the Oklahoma lawyers reasonably could have anticipated being
called into a Texas court because their activities in providing legal
representation in connection with the bankruptcy included direct acts within
Texas as well as conduct outside Texas and that such contacts were not
random, fortuitous, or incidental but instead each lawyer’s appearance was a
substantial, purposeful contact directed at the State of Texas. Id. The Jackson
court ultimately held that the clients’ causes of action related to or arose from
the Oklahoma lawyers’ appearances and legal representation on behalf of their
clients in the bankruptcy and that the Oklahoma lawyers did not meet their
burden of negating specific jurisdiction as a basis for the trial court’s exercise
of jurisdiction. Id.
The Jackson court’s reasoning applies here as well. Although some of
the preparation that Appellants performed for the NLRB proceeding took place
outside Texas, CMC’s cause of action for legal malpractice specifically relates
21 to Appellants’ legal representation in a proceeding before an ALJ in Texas.
Appellants did not associate local counsel but undertook to represent CMC in
a legal proceeding that Appellants knew was pending in Texas. Because
Appellants chose to represent CMC in Texas, they cannot now seek to avoid
the consequences of that choice. The evidence demonstrates that Appellants’
contacts with Texas were not random, fortuitous, or incidental and that a
substantial connection exists between Appellants’ purposeful contacts with
Texas and the operative facts of CMC’s legal malpractice claim. See id. at
449–50; Cartlidge v. Hernandez, 9 S.W.3d 341, 348–50 (Tex. App.—Houston
[14th Dist.] 1999, no pet.).
Finally, we analyze whether the trial court’s assertion of jurisdiction over
Appellants comports with “traditional notions of fair play and substantial
justice.” 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. Asahi Metal Indus.
Co. v. Superior Court of Ca., 480 U.S. 102, 113–16, 107 S. Ct. 1026,
1033–34 (1987); Burger King, 471 U.S. at 477, 105 S. Ct. at 2184;
22 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct.
559, 564 (1980). 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 Exch. Assurance, Ltd., 815 S.W.2d at 231; see also Schlobohm v.
Schapiro, 784 S.W.2d 355, 358 (Tex. 1990) (stating that because minimum
contacts analysis encompasses so many fairness considerations, it has become
less likely that exercise of jurisdiction will fail fair-play analysis).
Here, Appellants argue that Texas does not have a compelling interest to
supply a forum for resolution based again on their characterization of CMC’s
claims as ones for breach of a contract entered into in Colorado between
Colorado residents, that the evidence is located primarily in Colorado, that their
offices are in Colorado, and that it would be burdensome for them to submit to
a foreign state’s judicial process. As we have previously stated, CMC pleaded
a cause of action for legal malpractice. And the State of Texas has a
substantial interest in this litigation because Appellants agreed to represent
CMC, knowing that the proceedings were based in Texas; the complaint had
issued from the Fort Worth office of the NLRB; and the alleged unfair labor
practices occurred in Texas. Appellants, moreover, proved their willingness to
travel to Texas when they appeared on CMC’s behalf for the NLRB hearing.
23 Appellants’ arguments that they lack a physical presence in this State and that
it is inconvenient for them to attend a trial in Texas have been rejected as
grounds purportedly negating specific jurisdiction. See, e.g., Cartlidge, 9
S.W.3d at 350 (citing Burger King, 471 U.S. at 475–76, 105 S. Ct. at 2174).6
Other than the arguments and positions we have addressed, Appellants have
not identified any considerations that would render jurisdiction in Texas
unreasonable or that provide them with a vested right not to be sued in Texas.
See Burger King, 471 U.S. at 477, 105 S. Ct. at 2184–85. We therefore hold
that the trial court’s exercise of personal jurisdiction over Appellants would not
offend traditional notions of fair play and substantial justice. See Tempest
Broad. Corp., 150 S.W.3d at 877; Jackson, 122 S.W.3d at 451; Cartlidge, 9
S.W.3d at 350; Rowland & Rowland, 973 S.W.2d at 436.
Inferring all fact findings necessary to support the judgment that are
supported by legally and factually sufficient evidence in the record before us,
and viewing all of the evidence considered by the trial court in ruling on the
special appearances, we hold that as a matter of law the facts do not negate
the trial court’s exercise of specific jurisdiction over Appellants. See BMC
6 … While the inconvenience of the forum is to be considered, it is not a constitutional obstacle to the assertion of jurisdiction if due process is otherwise satisfied. Cartlidge, 9 S.W.3d at 350.
24 Software, 83 S.W.3d at 794–95. Accordingly, we overrule Appellants’ first
and second issues.
V. C ONCLUSION
Having overruled Appellants’ three issues, we affirm the trial court’s order
denying their special appearance.
SUE WALKER JUSTICE
PANEL A: CAYCE, C.J.; GARDNER and WALKER, JJ.
DELIVERED: July 3, 2008