Opinion
No. 05-03-00051-CV
Opinion issued January 22, 2004.
On Appeal from the 134th District Court Dallas County, Texas, Trial Court Cause No. 02-05197-G.
Affirmed.
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Moki Mac River Expeditions ("Moki Mac") appeals the trial court's denial of its special appearance in this case. We affirm on the basis of specific jurisdiction.
The Druggs also assert that Moki Mac's contacts with Texas support general jurisdiction. Because we resolve the issue based on specific jurisdiction, we do not reach the general jurisdiction argument. Accordingly, we recite here only the facts pertinent to our specific-jurisdiction analysis. Those facts, as set forth here, are either not disputed or Moki Mac's witness testified to them.
Facts
Charles and Betsy Drugg sued Moki Mac in Texas, after their thirteen-year-old son Andy died while hiking in conjunction with one of Moki Mac's river-rafting trips in Arizona. Moki Mac, a Utah corporation with its office in Salt Lake City, leads river rafting expeditions in Utah and Arizona only.
Sometime before Moki Mac's 2001 season, Annie Seals, a resident of Dallas, Texas, contacted Moki Mac to arrange a rafting trip. Richard Quist, an officer and director of Moki Mac, testified that, because no space was then available on trips in the year 2000, he put her name on the computerized mailing list so that they would send Seals the 2001 schedule when it became available. Moki Mac subsequently sent to Seals two brochures describing the company and its expeditions, as well as the schedule and prices for trips offered in the year 2001.
Seals shared the brochures with others in Texas, including Andy's grandmother, and eventually Andy's mother Betsy reviewed the two brochures. An application and deposit were sent in for Andy. After receiving the deposit, Moki Mac sent a release form directly to the Drugg home in Texas, which describes various risks and provides that those who sign "assume full responsibility" for injury or death as a result of inherent risks. As Moki Mac required, Andy signed it, as did Betsy as his parent, and it was returned to Moki Mac.
The Drugg's petition alleges the following facts. The expedition began in the Grand Canyon on June 11. The next day, the group stopped for a trail hike. Moki Mac guides were positioned at the head and rear of the group. At one point on the trail, a boulder protruded onto the path, requiring the hikers to lean back while crossing on a very narrow ledge. While Andy attempted to traverse the narrow ledge-with no guide present and having been given no special safety equipment-he fell backward approximately fifty-five feet, resulting in his death.
The Druggs sued Moki Mac for wrongful death and for intentional and negligent misrepresentation based on statements in the two brochures and the release form. The trial court denied Moki Mac's special appearance, and although requested, no findings of fact were filed by the trial court. Moki Mac brought this appeal.
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). A defendant challenging a Texas court's personal jurisdiction over it must negate all jurisdictional bases. Id. Whether a court has personal jurisdiction over a defendant is a question of law. Id. at 794. When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, we imply all facts that are necessary to support the judgment if supported by the evidence. Id. at 795.
We do not recite in this memorandum opinion the legal principles that govern personal jurisdiction. We apply here the established principles governing the due-process inquiry concerning minimum contacts and specific jurisdiction.
The Parties' Arguments
The Druggs allege that Moki Mac's sending of the brochures to Seals in Texas and its sending of the release form directly to the Drugg home in Texas, along with other of Moki Mac's acts touching Texas, establish sufficient minimum contacts to support specific jurisdiction. The Drugg's petition specifically alleges that Moki Mac made both intentional and negligent misrepresentations in the materials they sent to Texas. In her affidavit, Betsy Drugg testifies that, in making her decision to allow Andy to participate in the trip, she relied on certain alleged misrepresentations in the Moki Mac materials. Specifically, she alleges she relied on representations in the release form that Moki Mac takes reasonable steps to provide appropriate equipment and skilled guides, that participants need not be previously skilled in the activities encountered on a trip, and that certain risks could not be eliminated-thus leading her to believe risks that could be eliminated would be eliminated. Betsy Drugg also testifies that she relied on statements in the brochures. These included statements that one need not be a "mountain man" to participate in a Moki Mac expedition, that children as young as twelve could participate in the Grand Canyon trip, that "trip safety is a high priority," and that the guides perform their duties with the "utmost capability." The Druggs allege that, but for those representations, Andy would not have been allowed to go on the trip.
Moki Mac principally argues that any minimum contacts do not support specific personal jurisdiction over it, because Andy Drugg's injuries did not "arise from" or "relate to" Moki Mac's activities in Texas. See Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227-28 (Tex. 1991) (specific jurisdiction established if alleged liability "arises out of or is related to" activity conducted within forum). That is, Moki Mac argues, Andy Drugg's injuries were not caused by any alleged misrepresentations in materials it sent to Texas. Rather, the gravamen of the Drugg's complaint is their allegation that Andy Drugg's death was caused by negligence occurring at the trail site in Arizona. Moki Mac relies on a number of federal cases: Kervin v. Red River Ski Area, Inc., 711 F. Supp. 1383 (E.D. Tex. 1989) (alleged negligence for failing to maintain safe stairway at ski lodge did not "arise out of" any contacts with forum state, including advertising in forum state); Gorman v. Grand Casino of La., Inc.-Coushatta, 1 F. Supp.2d 656, 658 (E.D. Tex. 1998) (cause of action did not arise out of contacts; casino's advertising in forum state had nothing to do with events concerning employee conduct allegedly occurring in casino in Louisiana); Luna v. Compania Panamena De Aviacion, S.A., 851 F. Supp. 826, 832-33 (S.D. Tex. 1994) ("arising-out-of" requirement not met; alleged negligence in aircraft maintenance and operation of a flight originating in Panama resulted in Luna's death, not her purchase of ticket in Houston).
Moki Mac also argues that the evidence is legally and factually insufficient to support the implied findings of fact necessary to exercise personal jurisdiction over it in Texas. That argument is based on asserted facts related primarily to general jurisdiction that are not implicated in our inquiry on specific jurisdiction.
Application
We note the Druggs have met their initial burden of alleging sufficient facts that Moki Mac committed a tort, in whole or in part, in Texas, thus bringing the nonresident defendant within the provisions of the long-arm statute. See Tex. Civ. Prac. Rem. Code Ann. § 17.042(2) (Vernon 1997) (assertion of jurisdiction over nonresident permitted if "doing business" in Texas, which encompasses committing a tort in state). Further, Moki Mac has not negated the jurisdictional facts supporting the allegation that a tort was committed in Texas.
We turn to the question whether, as a matter of law, the exercise of jurisdiction over Moki Mac is consistent with due process. The cases on which Moki Mac relies to defeat jurisdiction are factually distinguishable from the instant case. This is not a personal-injury case like Kervin and Gorman where the defendant's sole contact is advertising that reaches the forum, but the cause of action is otherwise unrelated to the content of that advertising. Kervin, 711 F. Supp. at 1389, 1391; Gorman, 1 F. Supp.2d at 658. Neither is this case like Luna, where the sole contact was the purchase in Houston of an airline ticket (scheduled from Panama to Colombia), but the fatal flight originated and crashed in Panama. Luna, 851 F. Supp. at 828-829. Rather, the Drugg's misrepresentation claims are based on the language in the brochures and release form that Moki Mac sent into Texas. See Siskind v. The Villa Found. for Educ., Inc., 642 S.W.2d 434, 437 (Tex. 1982) (finding connection between content of business solicitation in Texas and alleged misrepresentation). Further, the nature and quality of the contacts is significant. That is, the safety-related content in the Moki Mac materials is related to the misrepresentation cause of action, in contrast to the more general advertising present in the cases on which Moki Mac relies. See, e.g., Singletary v. B.R.X., Inc., 828 F.2d 1135, 1136-37 (5th Cir. 1987) (Louisiana) (no evidence that claim arose from or related to general advertisements in forum). Accordingly, the Drugg's misrepresentation claims arise from, and relate to, Moki Mac's relevant minimum contacts, i.e., the brochures and release form sent to Texas.
In addition, the "purposeful availment" requirement is satisfied, even though Seals "unilaterally" initiated the phone call that eventually resulted in Moki Mac sending her the brochures in Texas. The evidence does not affirmatively show that Seals requested that Moki Mac send the schedule for 2001. It does show that it was Moki Mac's practice to send the new schedules to those who have made inquiries to Moki Mac in the previous three years, even when not specifically requested to do so. Thus, whether or not Seals requested them, Moki Mac would nonetheless have sent the brochures for the 2001 season to her in Texas.
Further, Moki Mac's practice of sending solicitation materials to a targeted group of interested parties, which knowingly included a Texas party in this instance, and its sending of the release form directly to the Druggs in Texas, indicate Moki Mac's relevant contacts with Texas were not random, attenuated, or fortuitous in this case. Rather, Moki Mac could reasonably foresee that the materials it sent to Seals and to the Druggs would be relied upon in Texas and that the brunt of injuries from an occurrence like the one in this case would be felt in Texas. See Mem'l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650-51 (Tex. App.-Houston [14th Dist.] 1992, no writ); Siskind, 642 S.W.2d at 437 (representations relied on in Texas). Accordingly, Moki Mac's contacts establish that it purposefully availed itself of the privilege of conducting business in Texas with these Texas residents and thus could reasonably anticipate being haled into a Texas court on account of that business. Further, exercising specific jurisdiction over Moki Mac in these circumstances does not violate notions of fair play or due process. The first factor, the burden on the defendant to litigate in Texas weighs slightly in Moki Mac's favor. We note, however, that Moki Mac would presumably be inconvenienced by litigating elsewhere than in Utah, where its office is located. Both parties would be inconvenienced were the litigation brought in Arizona, and it is clear that wherever the venue, some witnesses and at least one party will need to travel out of state. The second and third factors weigh in favor of the Druggs. The state of Texas has a strong interest in providing its residents a forum to resolve disputes such as this, and the plaintiffs have a strong interest in obtaining convenient and effective relief in a Texas forum. The fourth factor is neutral, as implications in this case are minimal concerning the judicial system's interest in obtaining an efficient resolution of this controversy. The fifth factor appears to be neutral as well, as no argument is raised indicating there is a conflict in the interests of the several states involved (Texas, Arizona, and Utah) in furthering their adopted substantive social policies. Accordingly, the exercise of personal jurisdiction over Moki Mac by a Texas forum does not offend traditional notions of fair play and substantial justice.
We affirm the trial court's order denying Moki Mac's special appearance.