Epicous Adventure Travel, LLC v. Tateossian, Inc., 08-18-00057-CV

• Decision Date: 26 February 2019
• Docket Number: No. 08-18-00057-CV,08-18-00057-CV
• Citation: 573 S.W.3d 375
• Parties: EPICOUS ADVENTURE TRAVEL, LLC, Appellant, v. TATEOSSIAN, INC. d/b/a Social Fix Media, Alternatively Social Fix Media, and Terry Tateossian, Appellees.
• Court: Texas Court of Appeals

573 S.W.3d 375

EPICOUS ADVENTURE TRAVEL, LLC, Appellant,

v.TATEOSSIAN, INC. d/b/a Social Fix Media, Alternatively Social Fix Media, and Terry Tateossian, Appellees.

No. 08-18-00057-CV

Court of Appeals of Texas, El Paso.

February 26, 2019

Hon. Joseph L. Lanza, San Antonio, Hon. Diren W. Singhe, Hon. Noah D. Lombardo, Houston, for Appellant.

Hon. Francisco Ortega, for Appellees.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This is an appeal from a granted special appearance. Epicous Adventure Travel, LLC (Epicous) is a Texas entity.¹ It sued in a Texas court what it claimed was a New York entity (Tateossian, Inc. d/b/a Socialfix Media, which alternatively is named as a partnership by the same trade name) and a New Jersey resident (Terry Tateossian). We will collectively refer to these parties as the "Socialfix defendants." Responding to the suit, the Socialfix defendants challenged and prevailed on a special appearance. On appeal, Epicous claims that the Socialfix defendants (1) waived their special appearance by urging merits arguments, (2) purposely availed themselves of the privilege of conducting activities within Texas through the collaborative use of an internet file-sharing platform, (3) relied on a defective affidavit in their special appearance, and finally (4) that the trial court erred when it denied Epicous jurisdictional discovery.

We reject each of these claims and affirm the decision below.

BACKGROUND

This case arises out of a website gone wrong. Epicous is a travel agency that specializes in arranging travel to Africa. It sought to market its services through a website that included several specific features, such as a "hovering overlay" that would show different images as the user moved their cursor over the webpage. In December 2014, Epicous entered into a written contract with "Socialfix Media, Inc." to design and develop such a website. Under the terms of the contract, Socialfix charged $25,000 for its services and was to deliver the website by April 2015.² By July 2016, Epicous claimed the website was still not complete and working to its satisfaction. It claims to have paid over $43,500 to Socialfix and others for the fees under the contract and additional charges--all for a website that did not work as promised. Epicous ultimately hired another firm to complete the work.

It then sued the Socialfix defendants in a Texas district court asserting fraud, fraudulent inducement, and statutory consumer protection claims, all parsed under both Texas and New Jersey law. It also asserted a breach of contract claim against Socialfix Media. The Socialfix defendants answered with a special appearance. Following a non-evidentiary hearing, the trial court granted the special appearance and dismissed the case. Epicous files this appeal which raises four issues.

WAIVER OF SPECIAL APPEARANCE

Epicous’s first issue contends that the Socialfix defendants waived their special appearance by seeking general relief on a defect-in-parties issue. To explain the argument, we begin with the defect.

The Defect in Parties

Epicous entered into a contract with "Socialfix Media, Inc." Yet, Epicous named in the suit "Tateossian, Inc. d/b/a Socialfix Media," alleging it to be a New York Corporation. Alternatively, it named "Socialfix Media" as a New York partnership. Epicous also named Terry Tateossian as a defendant.

The special appearance filed on behalf of Socialfix Media, Tateossian, Inc., and Teresa Tateossian, collectively referred to themselves as "Defendants." At the outset, the pleading first states that "prior to the assertion or filing by Defendants of any other plea, pleading, or motion" they object to the exercise of jurisdiction over them based on the absence of sufficient minimum contacts to warrant the exercise of personal jurisdiction.

The next section of the pleading summarizes Epicous’s allegations and asserts that Socialfix Media has no contacts with Texas and provided no goods or services here. The special appearance further alleges that Teresa Tateossian (misnamed in the petition as Terry) is a resident of New Jersey and has never been to Texas, nor has any contacts with this State. This section of the pleading further asserts that Tateossian, Inc. never did business with Epicous and was not an agent for any of the other defendants.

The pleading is supported by the affidavit of Teresa Tateossian. She avers that Socialfix Media is the trade or assumed name of New Street Enterprises, Inc., a New Jersey corporation. She is the president and shareholder of New Street Enterprises, Inc. Further, Tateossian, Inc. is a New York corporation wholly owned by her sister, Marion Tateossian, who resides at the same home address as Teresa Tateossian.

Controlling Law

A party may challenge personal jurisdiction by filing a special appearance under TEX.R.CIV.P . 120a. The special appearance must be made by sworn motion filed prior to a motion to transfer venue or any other plea, pleading or motion, but other pleas, motions, and instruments can be contained in the same instrument. TEX.R.CIV.P . 120a(1) ; see Exito Electronics Co., Ltd. v. Trejo , 142 S.W.3d 302, 303 (Tex. 2004). Aside from the due-order-of-pleading requirement, Rule 120a also imposes a due-order-of-hearing requirement. Trenz v. Peter Paul Petroleum Co. , 388 S.W.3d 796, 800 (Tex.App.--Houston [1st Dist.] 2012, no pet.). The due-order-of-hearing requirement mandates that a special appearance motion "shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard." TEX.R.CIV.P . 120a(2) ; Exito Electronics , 142 S.W.3d at 306 ; Restrepo v. Alliance Riggers & Constructors, Ltd. , 538 S.W.3d 724, 735 (Tex.App.--El Paso 2017, no pet.). Failure to do so results in waiver of the special appearance. Trenz , 388 S.W.3d at 800 ; Restrepo , 538 S.W.3d at 735.

Application

As we understand Epicous’s first issue, it contends that because the special appearance (1) disavows Tateossian, Inc.’s connection to the case, and (2) explains New Street Enterprises, Inc.’s role, it operates as an affirmative claim seeking a dismissal on the merits. Specifically, those allegations would constitute a claim of a defect-in-parties under TEX.R.CIV.P . 93(1), (2), (4), or (14). Epicous reasons that this merit-based argument was effectively ruled on, thus violating the due-order-of-hearing requirement for special appearances.

We reject Epicous’s waiver argument for the simple reason that the Socialfix defendants did not file a Rule 93 affirmative defense, much less have the court rule on it before hearing the special appearance. The defensive pleading is denominated as a special appearance, and nowhere explicitly cites to Rule 93. It does generally ask for a dismissal with prejudice in its request for relief, but the order granting the special appearance only generically dismisses the case. A dismissal for want of personal jurisdiction is without prejudice to refiling the claim in a forum with proper jurisdiction. See Walz v. Martinez , 307 S.W.3d 374, 383 (Tex.App.--San Antonio 2009, no pet.) (reforming judgment to be without prejudice); Celanese Corp. v. Sahagun , No. 05-16-00868-CV, 2017 WL 3405186, at *12 (Tex.App.--Dallas Aug. 9, 2017, pet. denied) (mem. op.)(same). Merely asking for the wrong measure of relief in a special appearance does not transform it into something that it is not. See Geo-Chevron Ortiz Ranch #2 v. Woodworth , No. 04-06-00412-CV, 2007 WL 671340, at *4 (Tex.App.--San Antonio Mar. 7, 2007, pet. denied) (mem. op.)("However, praying for dismissal with prejudice in a special appearance does not amount to a waiver.").

A defendant asserting a special appearance carries the burden to negate every ground for jurisdiction raised by the plaintiff’s petition. Kelly v. General Interior Const., Inc. , 301 S.W.3d 653, 658 (Tex. 2010). It may do so on either a factual or legal basis. Id. at 659. In this case, it just so happens that some of the same facts that the Socialfix defendants claim deprive a Texas court of jurisdiction, would also support a defense under Rule 93. Yet that does not mean that granting the special appearance also grants an unasserted Rule 93 defense. Suppose that a plaintiff sues Corporation A, alleging that agents of the corporation committed tortious acts in the forum state. If in filing a special appearance, Corporation A shows that the plaintiff has misnamed it as the defendant, and that the plaintiff actually dealt with Corporation B. Moreover, Corporation A has no contacts with the forum, either in general, or in relation to the specific transaction at issue. These factual assertions would support both a classic misnomer defense and a defect in jurisdiction. But just because the facts alleged may overlap with two defenses does not mean that a ruling on the special exception was preceded by a ruling on the merits of the case. We overrule Issue One.

PERSONAL JURISDICTION

In its second issue, Epicous contends that it established longarm jurisdiction over Appellees based on the parties' collaborative communications that were exchanged as the project progressed. Those communications mostly traversed via the internet.

Standard of Review

Whether a court has personal jurisdiction over a defendant is a question of law. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789 (Tex. 2002). To reach the question of law, however, a trial court must sometimes resolve questions of fact. American Type Culture Collection, Inc. v. Coleman , 83 S.W.3d 801, 805-06 (Tex. 2002). When everyone agrees on the relevant facts, our review is purely de novo. Searcy v. Parex Resources, Inc. , 496 S.W.3d 58, 66 (Tex. 2016) ; Coleman , 83 S.W.3d at 806. But if the parties disagree over the facts, we must look to what the trial court found. When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, as in this case, we imply all facts necessary to...