Paul Gillrie Institute, Inc. v. Universal Computer Consulting, Ltd.

183 S.W.3d 755, 2005 WL 3315261
CourtCourt of Appeals of Texas
DecidedFebruary 21, 2006
Docket01-04-01213-CV
StatusPublished
Cited by23 cases

This text of 183 S.W.3d 755 (Paul Gillrie Institute, Inc. v. Universal Computer Consulting, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paul Gillrie Institute, Inc. v. Universal Computer Consulting, Ltd., 183 S.W.3d 755, 2005 WL 3315261 (Tex. Ct. App. 2006).

Opinion

OPINION

TERRY JENNINGS, Justice.

In this libel suit, appellants, the Paul Gillrie Institute, Inc. (“PGI”), Paul Gillrie, and John Darmento bring this accelerated interlocutory appeal challenging the trial court’s order denying their special appearance. 1 In their sole issue, appellants contend that the trial court erred in determining that they were subject to the personal jurisdiction of a Texas court. We affirm.

Factual and Procedural Background

Appellees, Universal Computer Consulting, Ltd. and Dealer Computer Services, Inc. (collectively, “UCS”), are affiliated companies that provide computer systems to automobile dealerships across the United States. PGI is described as “North America’s leading consultant and advocate for automobile dealers in their quest to reduce technology expense in their dealerships.” Gillrie is the founder of PGI, and both Gillrie and Darmento are directors and employees of PGI. PGI serves a “diverse client base of dealers, CPA firms and attorneys throughout the United States and Canada,” and publishes a trade publication titled “the Journal of Dealership Computing,” six times a year. In its June 2004 journal, which was edited by Darmento, PGI published an article revealing the results of a survey comparing vendors of car-dealership computer systems. The article stated that although “UCS received the highest ratings as each one of their products was scored,” UCS received the lowest scores when customers were asked “to rate the company as a whole.” The article characterized the results of the survey to indicate that customers liked UCS’s products but did not like the company. The journal also contained a headline that stated, in bold, “Survey Shows UCS Clients Want to Leave.” Under this headline, the article asserted that 71% of UCS’s customers, if they had the choice, would not sign up with UCS again, and *758 that, as a whole, more UCS customers were dissatisfied with their computer vendor than customers of any other vendor. Finally, the journal contained several graphs illustrating that UCS received the highest marks in numerous categories, but received the lowest “overall rating” among the rated computer vendors.

Robert Nalley, president of UCS, testified that, in the summer of 2004, he was contacted by Dan Chernault, vice president and chief financial officer of Russell Smith Ford (“Russell Smith”), a UCS customer located in Harris County, Texas. Chernault notified him of the articles contained in PGI’s June 2004 journal. Nalley reviewed the journal and concluded that the statements contained in the journal were defamatory and damaging to UCS’s reputation. Nalley stated that he interpreted the article to represent that it was based on a fair, impartial, and scientifically valid survey.

UCS also presented the affidavit testimony of Chernault, who stated that he is the vice president and chief financial officer of Russell Smith, located in Houston, Texas, he received a copy of PGI’s June 2004 journal, he regarded the statements in the journal to be damaging to UCS’s reputation and derogatory toward UCS, and the article caused him concern about UCS’s services. Chernault also stated that he interpreted the article to represent that it was based on a fair, impartial, and scientifically valid survey.

In September 2004, UCS filed suit against appellants for libel, libel per se, business disparagement, tortious interference with existing contracts, and tortious interference with prospective contractual relationships. In its petition, UCS alleged that the article contained in PGI’s June 2004 journal was a sham, as evidenced by PGI’s refusal to reveal the data upon which the article was based. UCS further alleged that the sham study was motivated by the fact that UCS had recently discredited and embarrassed Gillrie when it pursued a Daubert 2 motion against him in unrelated litigation. UCS brought suit against PGI, and against Gillrie and Dar-mento individually, alleging that they drafted and edited the articles at issue. Appellants filed a special appearance 3 and an answer, subject to their special appearance, generally denying UCS’s allegations.

The relevant facts are largely undisputed. UCS maintains its corporate headquarters and principal place of business in Harris County, Texas. PGI is a Florida corporation; it does not maintain an office in Texas, does not have a registered agent for service of process in Texas, does not have any employees or operations located in Texas, and does not routinely send employees to Texas or recruit employees from Texas. However, PGI employees occasionally make and receive telephone calls from prospective clients in Texas. PGI’s journal is “written, compiled, and published in Florida,” and is sent to Texas through the United States mail. PGI has approximately eighteen active subscribers and thirty non-paying subscribers who are located in Texas and who receive the journal. 4 At least two of the Texas-based paid subscribers are current customers of UCS.

*759 Darmento, the editor of the PGI journal at issue, testified that he is a resident of Florida and that he has not been to Texas since 1990. Darmento also testified that Gillrie is a resident of Florida, that Gillrie traveled to Galveston, Texas in June 2004 to speak at a seminar on behalf of PGI, and that Gillrie travels to Texas once a year for similar seminars.

Standard of Review

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the long-arm statute. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). The burden of proof then shifts to the nonresident to negate all possible grounds for personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). The existence of personal jurisdiction is a question of law, which must sometimes be preceded by the resolution of underlying factual disputes. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.). When the underlying facts are undisputed or otherwise established, we review a trial court’s denial of a special appearance de novo. Id. Where a trial court does not issue findings of fact or conclusions of law with its special appearance ruling, all fact findings necessary to support the judgment and supported by the evidence are implied. BMC Software Belgium, N.V., 83 S.W.3d at 789.

Discussion

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Bluebook (online)
183 S.W.3d 755, 2005 WL 3315261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-gillrie-institute-inc-v-universal-computer-consulting-ltd-texapp-2006.