Horowitz v. Berger
| Decision Date | 21 June 2012 |
| Docket Number | No. 14–11–00576–CV.,14–11–00576–CV. |
| Citation | 377 S.W.3d 115 |
| Parties | Chana HOROWITZ, Appellant v. Francisc BERGER; Tiberiu Roman; Sara Bergman; Pinchas Bergman; Alexander Davidovich; Inna Davidovich; Aron Eherentrew; Ronnie Eilam; Yitshak Eliyahu; Revital Eliyahu; Arnon Erez; Netanel Feiger; Noam Fishman; Hadas Fishman; Frank Freedland; Gisa Freedland; Israel Freedland; Rivka Freedland; Shmuel Freedland; Tzipora Faige; Tova Shnitman; Naftali Friedlander; Michael Gitik; Daniel Glinert; D. Glinert Holdings, Ltd.; Sagi Goldberg; Moshe Gotlib; Yuray Gross; Eva Gross; Arie Guttman; Tzipora Hellmanm; Henry Kalb; Miriam Raskin Kiryati; Bruria Klein; Avraham Krakover; Shulamit Krakover; Aharon Laher; Sara Shterna–Lando; Nida Laohachai; Moshe Lavi; Malka Lavi; Amir Levi; Sandra Levi; Rivka Likvornik; Adina Mastbaum; Menahem Nagar; Gavriel Nesgi; Nahum Olschwang; Mishel Haim Papismedov; Moshe Peleg; Yossef Potash; Yaakov Rabinovits; Avraham Raizman; Hadasa Raizman; Elad Regev; Bien Shai; Liron Rukach; Shlomit Shaked; Iris Shany; Eliezer Spund; Moshe Spund; Yadin Terem; Tzachi Naim; Nir Ventura; Dan Willner; Dganit Willner; Arie Chaim Yoffe; Gad Zeitlin; Rachel Zeitlinm; Ezra Kaim; Dan Schwarz; and Zahava Schwarz, Appellees. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
George Vie, III, Houston, for Appellant.
Danny M. Sheena, Jerry L. Elmore, Stephen M. Loftin, Victor Weitao Zhao, Houston, Stretch R. Lewis Jr., Galveston, for Appellees.
Panel consists of Justices FROST, BROWN, and CHRISTOPHER.
In this interlocutory appeal, Chana Horowitz challenges the trial court's denial of her special appearance. We reverse and remand with instructions to the trial court to dismiss Horowitz from the suit for lack of personal jurisdiction.
Chana Horowitz is an Israeli citizen residing in Israel, where she worked as an independent contractor for the Israeli company, Founders T–M Real Estate & Investments, Ltd. (“Founders Israel”). Most of the seventy-two plaintiffs also are Israeli; none resides in the United States. The plaintiffs allege that Horowitz made representations to some of them in Israel 1 that persuaded them to purchase condominiums in a development referred to as “the Fairways Project” in League City, Texas from Roam Development Group, LP, a Texas limited partnership. Horowitz responded by filing a single document that included an unverified special appearance, a general denial, and a motion to dismiss for forum non conveniens. She subsequently served discovery requests to the plaintiffs and filed a motion to compel fuller responses to that discovery, and she later amended and verified her special appearance.
In the meantime, Founders Israel and two other defendants moved to compel the plaintiffs to arbitrate the claims against them. These defendants relied on an arbitration provision found in the Declaration of Condominium that applied to the property that the plaintiffs had purchased. Based on this motion, the plaintiffs argued that the trial court could exercise specific jurisdiction over Horowitz because she caused the plaintiffs to execute documents that incorporated the Declaration of Condominium.
Horowitz supported her amended special appearance with an affidavit in which she attested as follows:
• Horowitz is a citizen and resident of Israel.
• She worked as an independent contractor for Founders Israel from August 2002 through June 26, 2005.
• Under her contract with Founders Israel, she was required to follow its instructions. Founders Israel provided all sales tools, marketing materials, advertising, contracts, and other documents. She was not required to travel to Texas or perform any duties here.
• She has never lived, worked, contracted, owned property, or paid taxes in Texas.
• She has never maintained an office, address, telephone number, or bank account in Texas.
• In her individual capacity, Horowitz has never entered into a contract or conducted any business with a Texas business, citizen, or resident.
• She does not advertise or provide any services in Texas.
• She does not direct any mass mailings to Texas or have an ownership interest in any business located in Texas.
• She is not licensed or regulated by any Texas authority.
• She has never conducted any business in Texas or interacted with any of the plaintiffs in Texas.
• All of the contracts and documents she provided to the plaintiffs were prepared and provided by Founders Israel.
• All of her meetings and communications with the plaintiffs took place in Israel.
• She did not attend any of the property closings, all of which occurred after she stopped working for Founders Israel.
• Any payments by the plaintiffs would have been made to Founders Israel, who would then pay Horowitz and the other sales agents. Founders Israel paid her only in Israel.
• English is not Horowitz's native language and she never advised any of the plaintiffs that she was giving them a professional translation of any documents.
• It was not part of her job to train or advise other sales agents.
• As a reward for their services, Founders Israel sent Horowitz and other sales agents on a five-day trip to Las Vegas. On the way, the agents stopped in Texas for one-and-one-half days and viewed the Fairways Project, which is the property that is the subject of this suit.
• The only other time that Horowitz visited Texas was after she ceased working for Founders Israel in 2005.
The plaintiffs opposed Horowitz's special appearance and supported their opposition with affidavits in which they attested that they executed documents in English and in Hebrew; that English was not their native language; that Horowitz told them the English documents contained information similar to the information contained in the Hebrew documents; and that they never were given copies of the Declaration of Condominium.
Before any of Horowitz's other motions were heard, the trial court heard and denied her special appearance, concluding that Horowitz had sufficient contacts with Texas to support the exercise of specific personal jurisdiction. At Horowitz's request, the trial court also made findings of fact and conclusions of law in support of that ruling. In two appellate issues, Horowitz challenges the legal and factual sufficiency of the trial court's factual findings, and argues that the trial court erred in concluding that it properly could exercise specific jurisdiction over her.
The Texas Supreme Court has interpreted the broad language of the Texas long-arm statute to extend Texas courts' exercise of personal jurisdiction “ ‘as far as the federal constitutional requirements of due process will permit.’ ” BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002) (quoting U–Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977)). Those requirements are fulfilled if the defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘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)). Minimum contacts are sufficient to support the exercise of personal jurisdiction if they show that the nonresident defendant has purposefully availed herself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. See id. at 319, 66 S.Ct. at 160;Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005). In determining whether the purposeful-availment requirement is satisfied, courts consider only the defendant's contacts with the forum state, and not the unilateral activity of a third party. Michiana, 168 S.W.3d at 785. The defendant's contacts with the forum state must be purposeful rather than merely fortuitous. Id. In addition, the defendant must seek some benefit, advantage, or profit by availing herself of the forum. Id.
Personal jurisdiction may be “general” or “specific.” Zinc Nacional, S.A. v. Bouche Trucking, Inc., 308 S.W.3d 395, 397 (Tex.2010). A trial court properly may exercise general jurisdiction over a defendant whose contacts with the forum state have been continuous and systematic. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007); BMC Software, 83 S.W.3d at 796. When general jurisdiction is at issue, only the defendant's pre-suit contacts are relevant. PHC–Minden, L.P. v. Kimberly–Clark Corp., 235 S.W.3d 163, 169 (Tex.2007). On the other hand, when there is a substantial connection between the defendant's purposeful contacts with Texas and the operative facts of the litigation, a trial court properly may exercise specific jurisdiction over the defendant. Moki Mac, 221 S.W.3d at 585.
A defendant challenging a Texas court's personal jurisdiction must negate all jurisdictional bases alleged. BMC Software, 83 S.W.3d at 793;Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769, 772 (Tex.1995). Thus, the plaintiff has the initial burden of pleading sufficient facts to bring the nonresident defendant within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at 793;Brocail v. Anderson, 132 S.W.3d 552, 556 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). If the plaintiff fails to do so, then proof of the defendant's nonresidency is sufficient to negate personal jurisdiction. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658–59 (Tex.2010). If the plaintiff does allege sufficient jurisdictional facts, then the defendant can defeat jurisdiction in several ways. The defendant can introduce evidence contradicting the plaintiff's factual allegations,2 or show that the defendant's contacts with the forum state “fall short of purposeful availment”; 3 or demonstrate that “traditional notions of fair play and substantial justice are offended by the...
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