Gordon & Doner, P.A. v. Joros

• Decision Date: 30 April 2009
• Docket Number: No. 2-08-120-CV.,2-08-120-CV.
• Citation: 287 S.W.3d 325
• Parties: GORDON & DONER, P.A., Appellant, v. Jeffrey JOROS, Appellee.
• Court: Texas Court of Appeals

287 S.W.3d 325

GORDON & DONER, P.A., Appellant, v. Jeffrey JOROS, Appellee.

No. 2-08-120-CV.

Court of Appeals of Texas, Fort Worth.

April 30, 2009.

Thompson Coe Cousins & Irons, LLP and Kevin Risley, Houston, TX, Thompson Coe Cousins & Irons, LLP and Thomas A. Culpepper and Roshanak Khosravighasemabadi, Dallas, TX, for Appellant.

James E. Pennington and Quilling, Selander, Cummiskey & Lownds, PC and Greg K. Winslett, Dallas, TX, for Appellee.

Panel: CAYCE, C.J.; GARDNER and WALKER, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

Is a Florida law firm that referred a Florida resident's case to a Texas lawyer for filing in New York subject to personal jurisdiction in Texas? Because we hold that the Florida firm did not have sufficient minimum contacts with Texas to support the exercise of specific jurisdiction over it by a Texas court, we answer the question "no." We reverse the trial court's order denying the Florida law firm's special appearance and render judgment dismissing Appellee's claims against the Florida law firm for lack of personal jurisdiction.

II. Background

Appellee Jeffrey Joros ("Joros"), a Florida resident, sued Appellant Gordon & Doner, P.A. ("Gordon"), a Florida law firm, as well as Bailey & Galyen f/d/b/a Bailey, Galyen & Gold ("Bailey"), a Texas law firm; Phillip Galyen, P.C., a Texas law firm; and Robert Schwartz, an attorney and Texas resident, for professional negligence, DTPA violations, breach of fiduciary duty, and fraud. Gordon filed a special appearance with its original answer.

A. Joros's Allegations

Joros's first amended original petition alleged that he retained Gordon to represent him in claims against Eli Lilly arising out of injuries involving the drug Zyprexa. Suit was to be filed in multidistrict litigation pending in the Eastern District of New York.¹ Thereafter, he alleged, Gordon referred Joros's case to Bailey in Texas to file his claims in the litigation pending in New York. Allegedly, Gordon entered into a written contract with Bailey to jointly represent Joros. According to Joros, Bailey was to act as lead counsel for Joros, and a substantial portion of the legal services concerning Joros's case was to be performed by Bailey in Texas. Gordon would remain jointly responsible for Joros's case.

Joros pleaded that the "[d]efendants" told him that they would soon file suit in his case, that later they told him that he had been "included in the first round of settlements in the Zyprexa litigation," and that still later they told him that he was part of a second round of settlements concerning the Zyprexa litigation. However Joros asserted, he eventually discovered that his claim was never filed.²

B. Gordon's Special Appearance

Gordon filed a special appearance alleging that Gordon was a business entity formed under Florida law and has never done business in Texas. Gordon also alleged that Gordon:

• is not a resident of Texas and is not required to maintain, nor does it maintain, a registered agent for service in Texas;

• does not engage in, and has never engaged in, any business in Texas;

• has not done business in Texas within the meaning of Texas Civil Practices and Remedies Code section 17.042;

• has not committed any torts, in whole or in part, in Texas;

• has no employees, servants, or agents in Texas;

• has not maintained a place of business in Texas and has never maintained offices or any other type of facility in Texas;

• does not own any real or personal property in Texas;

• does not maintain any bank accounts, telephone numbers, or post office boxes in Texas; and

• does not pay any taxes to any local or state taxing authorities within Texas.

Robert E. Gordon, a partner in the Gordon law firm, attached an affidavit stating that he resides in Florida and is licensed to practice law in Florida, that he is not licensed to practice law in Texas, that none of the other lawyers in the Gordon law firm are licensed in Texas, and that he does not own property in Texas, does not maintain bank accounts in Texas, and has never represented Texas residents in litigation in Texas. Further, he averred that Gordon has never advertised in Texas, has never represented clients in litigation or transactions in Texas, and that the attorney-client relationship between Gordon and Joros was initiated and subsequently conducted in Florida.

In its brief in support of its special appearance, Gordon argued that it was a Florida law firm, that Joros was a Florida resident, and that all contacts between Joros and Gordon that give rise to Joros's claims occurred in Florida. Gordon stated that its sole connection with the state of Texas pertaining to Joros's claim was that it entered into a joint-representation agreement with Bailey on Joros's behalf relating to the Zyprexa litigation.

C. Joros's Response to Gordon's Special Appearance

In his response to Gordon's special appearance, Joros attached copies of the contract for legal services signed by Joros and Gordon, a "statement of client's rights for contingency fees" signed by Joros and Gordon, and Joros's written consent for Gordon to associate Bailey in his claims.

D. Stipulations of the Parties

Also attached were stipulations between Gordon and Joros that the contract, the fee agreement, and the consent to associate were true and correct copies. The parties' stipulations also provided that Bailey had been associated as "lead counsel" in connection with Joros's claim, that Joros's claim was not to be filed in the state of Texas but in the multi-district litigation pending outside of Texas, that much of the "legal work provided by [Bailey] was going to be performed in Texas," and that Gordon had referred several other claims involving the use of Zyprexa to Bailey.

E. The Ruling

After a hearing at which no additional evidence was presented, the trial court denied Gordon's special appearance, from which ruling Gordon has brought this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon 2008) (allowing interlocutory appeal from denial of special appearance).

III. Standard of Review

Whether a trial court has personal jurisdiction over a defendant is a question of law that we review de novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). In reviewing a trial court's ruling on a special appearance, we examine all of the evidence in the record to determine if the defendant negated all possible grounds for personal jurisdiction. Bergenholtz v. Cannata, 200 S.W.3d 287, 292 (Tex.App.-Dallas 2006, no pet.). The trial court must frequently resolve underlying fact questions before deciding the jurisdictional issue. BMC Software Belgium, 83 S.W.3d at 794. If the trial court does not issue findings of fact, we imply all such findings necessary to support the judgment that are supported by the evidence. See id. at 795. When a reporter's record is included in the appellate record, the trial court's findings—either express or implied—are not conclusive and are subject to challenge for legal and factual sufficiency. See id. However, the facts in this appeal are undisputed. Although the trial court held a hearing on Gordon's special appearance and considered the pleadings, evidence, and argument of counsel, there is no reporter's record. Therefore, we will presume that the special appearance hearing was nonevidentiary and that the trial court considered only the evidence filed with the clerk. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex.2005).

IV. Personal Jurisdiction

A. Applicable Law

Texas courts may assert personal jurisdiction over a nonresident if jurisdiction is authorized by the Texas long-arm statute and is consistent with federal and state constitutional due-process guarantees. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003); see Tex. Civ. Prac. & Rem.Code Ann. §§ 17.041-.045 (Vernon 2008). The long-arm statute allows Texas courts to "reach as far as the federal constitutional requirements of due process will allow." Am. Type Culture Collection, Inc., 83 S.W.3d at 806 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)); see also Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (listing acts constituting "doing business" within state for purposes of long-arm statute). Thus, a Texas court may only exercise personal jurisdiction over a nonresident if doing so complies with federal due process requirements. See Moki Mac, 221 S.W.3d at 575. Those requirements are satisfied if (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." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).

1. Nature of Contacts with Texas

The contacts relevant to a jurisdictional analysis are those by which 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." Moki Mac, 221 S.W.3d at 575 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)); Michiana, 168 S.W.3d at 784. The "touchstone" of jurisdictional due process analysis is "purposeful availment." Michiana, 168 S.W.3d at 784 (citing Hanson, 357 U.S. at 253, 78 S.Ct. at 1240). It is essential in each case that there be some act by which the defendant purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Id.

There are at least three aspects to the "purposeful availment" inquiry:...