Opinion
NO. 03-17-00489-CV
04-04-2018
The Law Firm of Donald Wochna, LLC, Appellant v. American Frontier Management, LLC and David Barker, Appellees
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
NO. 16-0415-C395 , HONORABLE RYAN D. LARSON, JUDGE PRESIDING MEMORANDUM OPINION
In this interlocutory appeal, the Law Firm of Donald Wochna, LLC, an Ohio company, appeals the trial court's order denying the Law Firm's special appearance. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(7); Tex. R. Civ. P. 120a. In one issue, the Law Firm argues that it did not have sufficient minimum contacts with the State of Texas to confer the trial court's specific jurisdiction over it. For the following reasons, we sustain the Law Firm's issue, reverse the trial court's order, and render judgment dismissing appellees' claims against the Law Firm for want of personal jurisdiction.
Background
The Law Firm was formed under the laws of the state of Ohio. The managing partner of the Law Firm is Donald Wochna, who is a sole practitioner licensed to practice in Ohio and not in Texas. The Law Firm does not maintain an office or advertise in Texas, and it has no assets, employees, bank accounts, or real property in Texas.
American Frontier Management, LLC, is a Texas company, and David Barker is a Texas resident and member of American Frontier. American Frontier is a defendant in pending litigation in Ohio. The parties in the Ohio litigation entered into an agreed order governing electronic discovery, and the Law Firm was retained by the plaintiff's counsel Carlile, Patchen & Murphy (the Carlile Firm) in the Ohio litigation to assist with electronic discovery. In the engagement agreement between the Law Firm and the Carlile Firm, the Law Firm agreed to "supervise any third party computer forensic or electronic discovery expert retained by [the Carlile Firm] in this matter." As compensation for its services, the parties agreed that the Law Firm would receive $200 per hour. The parties also agreed that, if a third party expert was retained, the Carlile Firm would execute an engagement agreement with such expert and be responsible for all fees or costs charged by the expert and that the Law Firm was not authorized to retain a third party expert.
The Law Firm also agreed to provide the Carlile Firm "with electronic and computer forensic strategies"; conduct depositions related to discovery; assist trial counsel with preparing and responding to electronic discovery; negotiate fees, costs, and scope of services of any third party computer forensic or electronic discovery expert retained by the Carlile Firm; and assist trial counsel "to understand electronic evidence" and "recommend strategies by which such evidence and artifacts can be incorporated within the legal strategies pursued by Trial Counsel."
The agreement also provided an alternative fixed fee to complete a defined set of services before a certain date.
After the Law Firm was retained by the Carlile Firm in the Ohio litigation, Wochna "identified and vetted" Prime Focus Forensics, LLC, as a "suitable third party computer forensic expert" to assist the Carlile Firm with copying electronically stored information from devices belonging to appellees pursuant to the agreed order governing electronic discovery in the Ohio litigation. Prime Focus is located in Hutto, Texas, licensed under the laws of the State of Texas, and operated by Mike Adams. The Carlile Firm thereafter retained Prime Focus to copy electronically stored information from devices belonging to appellees pursuant to the protocol in the agreed order in the Ohio litigation.
The agreed order identifies and lists Adams and Prime Focus as part of the plaintiff's computer forensic team in the Ohio litigation.
After Prime Focus was retained by the Carlile Firm, Adams began the process of copying electronically stored information from devices located in Texas belonging to appellees, but appellees stopped the process after a few days, accusing Adams of damaging and destroying data. Appellees thereafter filed the underlying suit in this case in which they alleged that (i) Prime Focus was "neither qualified, nor competent to copy American Frontier's devices"; (ii) Prime Focus "had deleted a massive amount of data—approximately 1.7 terabytes—from one of [American Frontier's] hard drives, including American Frontier's accounting data and other business files"; and (iii) "[d]ue to Prime Focus's incompetent attempts to copy American Frontier's devices over three days, and due to the resulting destruction and corruption of those devices, American Frontier's business operations were crippled for approximately eight days" and its "revenue stream was damaged for weeks."
Appellees' pleaded factual assertions included that: (i) the Law Firm, along with other defendants, "hired" Prime Focus to perform the copying of electronically stored data belonging to appellees and "represented to American Frontier that Prime Focus was a competent computer forensics analyst"; (ii) "[u]pon information and belief, Prime Focus was neither qualified, nor competent to copy American Frontier's devices"; (iii) after Adams's first "failed" day, American Frontier notified one of the other defendants of its "grave concerns" about Adams's qualifications; (iv) in response, Wochna, on behalf of that defendant, "assured American Frontier in writing that 'things are progressing properly' and 'it is not unusual for a forensic imaging process to appear to have been stalled for very long periods of time'"; (v) American Frontier relied on this representation in allowing Adams to continue copying efforts; and (vi) Adams's "attempted copying" was not successful and "caused serious damage to American Frontier's devices and the data contained in the devices."
Appellees sued multiple parties, including Prime Focus, the Law Firm, and the Carlile Firm, and sought direct and consequential damages based on negligence claims against Prime Focus and claims of vicarious liability and "negligent hiring, retention, and/or supervision" of Prime Focus against the Law Firm and others. The Law Firm filed a special appearance supported by an affidavit by Wochna, contending that appellees had not alleged sufficient facts to subject the Law Firm to suit in Texas and that Wochna's affidavit conclusively established that Texas courts had neither general nor specific personal jurisdiction over the Law Firm. In his affidavit, Wochna averred that he "decided to seek out a Texas company, such as Prime Focus, to assist in e-discovery" in the Ohio litigation because American Frontier, one of the defendants in the Ohio litigation, was located in Texas; that the Carlile Firm contracted with Prime Focus; and that he monitored Prime Focus pursuant to the Law Firm's engagement agreement with the Carlile Firm. He also averred about his contacts with plaintiff's counsel in the Ohio litigation and with Prime Focus after American Frontier expressed concerns about Prime Focus's competence to copy the electronically stored information. He explained that all of his actions with regard to Prime Focus "were performed in support of the Firm's obligations to the Carlile Firm in the Ohio litigation" and were done from the Law Firm's office in Ohio: "None of the services provided by the Firm in the Ohio litigation were performed in Texas, as they were all conducted from the Firm's office in Ohio. At no point did I, or any other representative of the Firm, travel to Texas to identify, vet, or supervise Prime Focus, or to perform any other service in the Ohio litigation."
Appellees filed responses to the Law Firm's special appearance, asserting that the trial court had specific jurisdiction over the Law Firm. They alleged that Wochna's actions and omissions were directed at Texas, including his selection, instruction, and supervision of Prime Focus before and during the "botched copying attempt" and his "false assurance" to appellees during the process that Prime Focus "was performing the job safely." They supported their responses with evidence of email communications and other correspondence between Wochna and Adams and others concerning the hiring of Prime Focus, its subsequent efforts to copy appellees' electronically stored information, and its alleged destruction and corruption of their devices and electronically stored information.
At the hearing on the Law Firm's special appearance, the only witness to testify was Wochna. He testified about his role in retaining Prime Focus as a computer forensic expert for the Ohio litigation and his communications with Adams, the Carlile Firm, and plaintiff's counsel in the Ohio litigation concerning Prime Focus's copying of electronically stored information from devices belonging to appellees. He explained that all of his communications and correspondence were related to the electronic discovery in the Ohio litigation and made by telephone or sent by email from his Ohio office and that he had never been to Texas prior to the special appearance hearing. He testified about the meaning of his agreement in the engagement letter with the Carlile Firm to "supervise any third party computer forensic or electronic discovery expert retained by [the Carlile Firm]" in the Ohio litigation as follows:
Between myself and the Carlile Patchen firm, when we executed that document, what we intended and what we meant and what "supervise" does mean is to monitor, make certain that you understand what's going on, be able to be aware of the status of
everything at all times, be responsible for being able to report to the litigation counsel what is occurring, be responsive to litigation counsel's questions, be able to relay those questions to the experts performing the work in a manner so that we can get timely responses, communicate those responses back to lead counsel intelligently and properly, and then apply my legal knowledge many times, suggest to counsel strategies and suggest to counsel responses when needed.He denied that the Carlile Firm hired him to determine whether Adams did a good job or to tell him how to do the job, explaining that "as an attorney, I can't get involved in how the experts are doing their jobs." He also explained that he was not entitled to access American Frontier's electronically stored information at that time, but his role was to coordinate and relay information before and during the time period that Adams was copying American Frontier's electronically stored information in Texas. He testified that he was "not there to answer [the expert]'s questions about how to do the job, but [he did] need to know they're getting the job done." The admitted exhibits included copies of emails and other correspondence between Wochna and Adams and others and the Law Firm's engagement agreement with the Carlile Firm.
Following the hearing and supplemental briefing by the parties, the trial court denied the Law Firm's special appearance. This interlocutory appeal followed.
Analysis
In one issue, the Law Firm argues that the trial court erred in denying its special appearance because the communications between Wochna and Prime Focus were not sufficient minimum contacts with the State of Texas to support the trial court's personal jurisdiction over the Law Firm such that the Law Firm could be sued in Texas for damages that allegedly occurred when Prime Focus copied the electronically stored information belonging to appellees.
Personal Jurisdiction Framework and Standard of Review
Texas courts have personal jurisdiction over a nonresident defendant when the Texas long-arm statute permits such jurisdiction and the exercise of jurisdiction is consistent with federal and state due-process guarantees. TV Azteca v. Ruiz, 490 S.W.3d 29, 36 (Tex. 2016) (citing Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013)). The Texas long-arm statute allows courts to exercise personal jurisdiction over a nonresident defendant who "does business in this state," including by "commit[ing] a tort in whole or in part in this state." Tex. Civ. Prac. & Rem. Code § 17.042(2). "Because this statute reaches 'as far as the federal constitutional requirements for due process will allow,' Texas courts may exercise jurisdiction over a nonresident so long as doing so 'comports with federal due process limitations.'" Ruiz, 490 S.W.3d at 36 (quoting Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex. 2010)).
Personal jurisdiction over a nonresident defendant is constitutional when "the defendant has established 'minimum contacts' with the state" and "the exercise of jurisdiction comports with 'traditional notions of fair play and substantial justice.'" Id. (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)); see BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). "The minimum contacts requirement protects due-process rights by permitting a state to exercise jurisdiction over a nonresident defendant only when the defendant 'could reasonably anticipate being hauled into court there.'" Ruiz, 490 S.W.3d at 37 (citing Moncrief Oil, 414 S.W.3d at 152).
Appellees asserted that the trial court had specific jurisdiction over the Law Firm. See M&F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 886-90 (Tex. 2017) (discussing specific jurisdiction over nonresident defendant); Searcy v. Parex Res., Inc., 496 S.W.3d 58, 67-70 (Tex. 2016) (same). "When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship among the defendant, the forum, and the litigation." Rolnick v. Sight's My Line, Inc., No. 03-15-00335-CV, 2015 Tex. App. LEXIS 12842, at *7 (Tex. App.—Austin Dec. 22, 2015, pet. denied) (mem. op.) (citing Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991)); see Searcy, 496 S.W.3d at 70 (explaining that specific jurisdiction "does not turn on where a plaintiff happens to be"); Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784-85 (Tex. 2005) (discussing requirement of "purposeful availment" and explaining that "defendant will not be haled into a jurisdiction solely based on contacts that are 'random, isolated, or fortuitous'" (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984))).
Appellees did not assert that Texas has general jurisdiction over the Law Firm. Cf. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795, 797 (Tex. 2002) (explaining that general jurisdiction may be exercised over nonresident defendant only when contacts in forum are "continuous and systematic" and general jurisdiction showing is "a more demanding minimum contacts analysis then for specific jurisdiction" (quoting CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996)); see also WaterWorks Corral Creek, LLC v. AquaTech Saltwater Disposal LLC, No. 03-16-00309-CV, 2018 Tex. App. LEXIS 1363, at *13-15 (Tex. App.—Austin Feb. 21, 2018, no pet. h.) (mem. op.) (describing general and specific jurisdiction).
"To support the exercise of specific jurisdiction, the plaintiff's causes of action must arise from or relate to the nonresident defendant's forum contacts," meaning that there must exist a substantial connection between the forum contacts and the "operative facts of the litigation." Rolnick, 2015 Tex. App. LEXIS 12842, at *7-8 (citing Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 576, 585 (Tex. 2007)); see Searcy, 496 S.W.3d at 70 (explaining that specific jurisdiction "does not exist where the defendant's contacts with the forum state are not substantially connected to the alleged operative facts of the case"); Moncrief Oil, 414 S.W.3d at 150 ("[S]pecific jurisdiction exists when the cause of action arises from or is related to purposeful activities in the state."); WaterWorks Corral Creek, LLC v. AquaTech Saltwater Disposal LLC, No. 03-16-00309-CV, 2018 Tex. App. LEXIS 1363, at *15 (Tex. App.—Austin Feb. 21, 2018, no pet. h.) (mem. op.) (in context of specific jurisdiction, explaining that claim arises from or relates to nonresident defendants' forum contacts if there is "'substantial connection between those contacts and the operative facts of the litigation'" (quoting Ruiz, 490 S.W.3d at 52 (quoting Moki Mac, 221 S.W.3d at 585))). "The operative facts are those facts that would be the focus of a trial on the merits." Rolnick, 2015 Tex. App. LEXIS 12842, at *8 (citing Moki Mac, 221 S.W.3d at 575).
"Under the Texas long-arm statute, the plaintiff bears the initial burden of pleading allegations sufficient to confer jurisdiction." Moncrief Oil, 414 S.W.3d at 149. If the plaintiff meets the initial burden, the burden shifts to the defendant to negate all potential bases for personal jurisdiction that the plaintiff pleaded. Id.; see Colmen LLC v. Santander Consumer USA, Inc., No. 05-17-00101-CV, 2017 Tex. App. LEXIS 10341, at *10-11 (Tex. App.—Dallas Nov. 3, 2017, no pet.) (mem. op.) (explaining shifting burdens as to challenge to personal jurisdiction). "The defendant can negate jurisdiction on a factual or legal basis." Kelly v. General Interior Constr., Inc., 301 S.W.3d 653, 659 (Tex. 2010); Colmen LLC, 2017 Tex. App. LEXIS 10341, at *10-11. "'The plaintiff can then respond with its own evidence that affirms its allegations, and it risks dismissal of its lawsuit if it cannot present the trial court with evidence establishing personal jurisdiction.'" Colmen LLC, 2017 Tex. App. LEXIS 10341, at *10-11 (quoting Kelly, 301 S.W.3d at 659). "The defendant negates jurisdiction on a legal basis by showing that 'even if the plaintiff's alleged facts are true, the evidence is legally insufficient to establish jurisdiction; the defendant's contacts with Texas fall short of purposeful availment; for specific jurisdiction, that the claims do not arise from the contacts; or that traditional notions of fair play and substantial justice are offended by the exercise of jurisdiction.'" Id.
"When, as here, the trial court did not issue findings of fact and conclusions of law, we imply all relevant facts necessary to support the judgment that are supported by evidence." Moncrief Oil, 414 S.W.3d at 150; see Marchand, 83 S.W.3d at 795. But the ultimate question of whether a court has personal jurisdiction over a nonresident defendant is a question of law subject to de novo review. Moncrief Oil, 414 S.W.3d at 150 (citing Moki Mac, 221 S.W.3d at 574). Rolnick v. Sight's My Line , Inc.
In resolving the personal-jurisdiction analysis here, we also are guided by this Court's analysis in Rolnick v. Sight's My Line, Inc. In that case, the plaintiffs brought legal malpractice claims against lawyers, including a Florida lawyer, who represented the plaintiffs in connection with the sale of assets located in Texas. 2015 Tex. App. LEXIS 12842, at *2. The crux of the alleged malpractice claim was that the attorneys failed to file a UCC-1 in Delaware concerning the sale of the assets, id. at *11, and the Florida lawyer's primary contacts with the state were communications with a Texas attorney concerning the transaction, id. at *2. The plaintiffs also relied on the following additional contacts to support the trial court's specific jurisdiction over the Florida lawyer: (i) the Florida attorney was "lead counsel for the entire transaction and ultimately 'responsible' for ensuring that it complied with Texas law"; (ii) the sale involved assets located in Texas; and (iii) the Texas attorney believed that he was "retained" by the Florida lawyer. Id. at *12 n.6.
Based on the undisputed evidence, we concluded that the evidence was legally insufficient to support the trial court's implied finding that it could exercise personal jurisdiction over the Florida lawyer and held that the Florida lawyer negated the bases for personal jurisdiction alleged by appellees. Id. at *12-13. In reaching our holding, we observed that, although the Florida lawyer may have communicated his legal judgment to attorneys in Texas, "his allegedly tortious conduct was not the communication itself of his legal judgment but alleged acts and omissions in implementing that judgment," which we concluded occurred in Florida. Id. at *10-12. We explained:
The operative facts at a trial on the merits will focus on the legal advice that [the Florida attorney] gave and on his professional omissions, not on the communication of that advice or on the role that he played in "quarter-backing" the larger transaction of the sale of [Texas] assets. . . . The connection between his Texas contacts—a few phone calls and emails to [the Texas attorney]—and the operative facts of the litigation (whether his legal representation was negligent) is tenuous. The multiple iterations and characterizations of [the Florida attorney]'s Texas contacts that appellees reference are insufficient to constitute "minimum contacts."Id. Informed by our analysis in Rolnick in the context of the personal jurisdiction framework and our standard of review, we turn to our analysis of whether the trial court correctly concluded that it had personal jurisdiction over the Law Firm based on appellees' pleaded claims.
Appellees' Claims Against the Law Firm
As previously stated, the Law Firm challenges the sufficiency of its contacts with the State of Texas to support the trial court's specific jurisdiction over it. Because the trial court did not make findings of fact or conclusions of law, we imply findings by the trial court that appellees met their initial burden of pleading facts to support their claims against the Law Firm sufficient to confer jurisdiction under the Texas long-arm statute and that the Law Firm did not negate appellees' pleaded bases such that the trial court could exercise personal jurisdiction over the Law Firm. See Tex. Civ. Prac. & Rem. Code § 17.042(2) (including committing tort in whole or part in Texas as act constituting doing business in Texas); Moncrief Oil, 414 S.W.3d at 149-50; Marchand, 83 S.W.3d at 795. We turn then to our review of appellees' pleaded claims against the Law Firm and the jurisdictional evidence to determine if the evidence was legally sufficient to support the trial court's implied finding that the Law Firm had sufficient minimum contacts with the State of Texas to confer the trial court's specific jurisdiction over it. See Rolnick, 2015 Tex. App. LEXIS 12842, at *12-13; see also City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (describing legal sufficiency standard of review); Marchand, 83 S.W.3d at 794 (reviewing implied findings for legal and factual sufficiency).
Appellees sued the Law Firm for negligent hiring and supervision of Prime Focus. As support for their position that the trial court had personal jurisdiction over the Law Firm as to this claim, appellees focus on: (i) the correspondence and communications between Wochna and Adams; (ii) Wochna's admissions that he "decided to seek out a Texas company" to perform the copying of appellees' electronically stored information and "identified and vetted" Prime Focus; and (iii) Wochna's hourly rate in his engagement letter with the Carlile Firm, that showed, according to appellees, that the Law Firm "profited from each and every communication" that Wochna had with Prime Focus.
Because the parties in their briefing to this Court do not substantively address appellees' pleaded claims of vicarious liability and negligent retention generally asserted against multiple defendants, we do not address these claims except to observe that the evidence was undisputed that the Carlile Firm was the party that retained and paid Prime Focus to copy the electronically stored data belonging to appellees. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002) ("Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong.").
Negligent hiring and supervision claims, however, are based on an employer's direct negligence, not vicarious liability. Ogg v. Dillard's Inc., 239 S.W.3d 409, 420 (Tex. App.—Dallas 2007, pet. denied); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002, no pet.). "The basis of responsibility . . . is the employer's negligence in hiring . . . an incompetent employee who the employer knew or, in the exercise of ordinary care, should have known was incompetent or unfit, and thereby creating an unreasonable risk of harm to others." Ogg, 239 S.W.3d at 420; see id. at 421 (explaining that "[n]egligence in hiring requires that the employer's 'failure to investigate, screen, or supervise its [hirees] proximately caused the injuries the plaintiffs allege'" (quoting Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex. 2006))); Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App.—Tyler 1979, writ ref'd n.r.e.) (discussing basis of responsibility for negligent hiring claims and employer's duty owed to public to investigate competence and qualifications of persons considering for employment).
The operative facts then that would be the focus of a trial on the merits of appellees' claims against the Law Firm would involve whether the Law Firm was an "employer" of Prime Focus and, if so, whether and how the Law Firm was negligent by hiring or supervising Prime Focus. See Ogg, 239 S.W.3d at 420; see also Wansey v. Hole, 379 S.W.3d 246, 247-48 (Tex. 2012) (per curiam) (discussing negligent hiring and supervision claim); Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex. App.—Dallas 2002, pet. denied) ("To successfully prosecute a claim of negligent hiring, supervision, or retention, a plaintiff is required to show that (1) the employer owed a legal duty to protect third parties from the employee's actions, and (2) the third party sustained damages proximately caused by the employer's breach of that legal duty." (citing Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—Austin 1998, no pet.))).
Analogous to the lawyer's alleged acts or omissions in Rolnick, the evidence was undisputed that Wochna's acts or omissions that were related to the operative facts of appellees' claims occurred in Ohio—he "identified and vetted" Prime Focus from his office in Ohio as part of the services that the Law Firm was providing to the Ohio firm, the Carlile Firm pursuant to the engagement agreement between the Law Firm and the Carlile Firm, and that he communicated the results of his investigation in Ohio from his office to the Carlile Firm. The evidence also was undisputed that the Carlile Firm was the party that actually retained and agreed to pay Prime Focus for its work and Wochna's communications—telephone calls and emails—with Adams were from the Law Firm's office in Ohio. Any negligence by Wochna then in relation to the hiring or supervising of Adams occurred in Ohio. See Rolnick, 2015 Tex. App. LEXIS 12842, at *10-12.
We find factually distinguishable appellees' cited cases to support the trial court's personal jurisdiction over the Law Firm as to appellees' negligent hiring and supervision claim. See, e.g., Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 282-83 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (concluding that trial court had personal jurisdiction over non-resident company that paid engineer in Texas to perform engineering work on aircraft where claim against company was negligence in "design, installation, and inspection of" wing of aircraft); Limited Logistics Servs. v. Villegas, 268 S.W.3d 141, 144, 149 (Tex. App.—Corpus Christi 2008, no pet.) (affirming that trial court had personal jurisdiction over non-resident defendant as to negligent hiring claim where defendant contracted with Texas corporation to deliver its products to Texas and driver of truck and trailer caused injury in accident; plaintiff produced carrier agreement as evidence that defendant retained "some control"; and defendant waived argument about "right of control" on appeal); Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 865, 875-76 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (concluding that trial court had personal jurisdiction over non-resident lawyer based on lawyer's alleged misrepresentations to Texas company related to purchase of Texas radio station). We further disagree with appellees' assertion that "[w]hether Wochna had a formal contract with [Prime Focus was] irrelevant to this inquiry." Appellees did not present evidence that would support a finding that the Law Firm was the party that hired and agreed to pay Prime Focus. The only evidence showed that the Carlile Firm retained and agreed to pay Prime Focus for its work. We also cannot agree with appellees' characterization of the evidence as to the scope of Wochna's supervision and "control" of the work performed by Adams.
We also find the nature of the communications between Wochna and Adams significant. The evidence was undisputed that Wochna's contacts with Adams were in the context of Adams's role as an expert and Wochna's role as an attorney in the Ohio litigation and concerned obtaining electronic discovery from American Frontier, a defendant in that litigation, pursuant to the agreed order governing electronic discovery. See, e.g., id. at *9 (observing that focus for personal-jurisdiction purposes in context of legal malpractice claim is "where the attorneys performed the legal work at issue" and collecting cases); Morris, 78 S.W.3d at 49 (observing that "[n]egligent hiring, retention, and supervision claims are all simple negligence causes of action based on an employer's direct negligence rather than on vicarious liability" and listing elements of negligence action). Further, Wochna's alleged "false assurance during the process that [Prime Focus] was performing the job safely"—that "things were progressing properly" and "it is not unusual for a forensic imaging process to appear to have been 'stalled' for very long periods of time"—were made from his office in Ohio in a letter addressed to the defendant's counsel at their Ohio address in the Ohio litigation.
Based on the undisputed evidence, we conclude that a substantial connection does not exist between the Law Firm's contacts with Texas that appellees reference and the operative facts of appellees' negligent hiring and supervision claims against the Law Firm; rather, the connection between the Law Firm's referenced contacts with Texas and the operative facts of the litigation is tenuous. See Rolnick, 2015 Tex. App. LEXIS 12842, at *7-8, *11 (explaining that "substantial connection must exist between the nonresident defendant's forum contacts and the operative facts of the litigation"). Based on Wochna's contacts with Adams, the Law Firm could not "reasonably [have] anticipate[d] being hauled into court" in Texas to defend appellees' negligent hiring and supervision claims. See Ruiz, 490 S.W.3d at 37; see also Michiana Easy Livin' Country, 168 S.W.3d at 784 (explaining that "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws").
Informed by this Court's analysis in Rolnick in the context of the personal jurisdiction framework and our standard of review, we conclude that the Law Firm conclusively negated the factual bases for personal jurisdiction alleged by appellees and that the evidence was legally insufficient to support the trial court's implied finding that the Law Firm had sufficient minimum contacts with the State of Texas to confer specific jurisdiction over it. See Rolnick, 2015 Tex. App. LEXIS 12842, at *10-12; see also Moncrief Oil, 414 S.W.3d at 149-50; Kelly, 301 S.W.3d at 659; Marchand, 83 S.W.3d at 795; WaterWorks Corral Creek, 2018 Tex. App. LEXIS 1363, at *19-35 (discussing claims of breach of contract, tortious interference, and conspiracy and concluding that trial court lacked specific jurisdiction over claims). On this basis, we sustain the Law Firm's issue.
Conclusion
For these reasons, we reverse the trial court's order denying the Law Firm's special appearance and render judgment dismissing appellees' claims against it for want of personal jurisdiction.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Reversed and Rendered Filed: April 4, 2018