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representing approximately fifty Texas clients over twenty-plus years does not constitute substantial, systematic and continuous contact with Texas
Summary of this case from Katz v. CashettOpinion
No. 05-07-01056-CV
July 23, 2008.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. 05-00359-D.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Wayne Fowler appeals the trial court's order sustaining the amended special appearance of Richard Litman, individually, and Litman Law Offices, Ltd. In four issues, Fowler contends generally that Litman had sufficient minimum contacts with Texas to support the exercise of personal jurisdiction and that such exercise would not offend traditional notions of fair play and substantial justice. We overrule Fowler's issues and affirm the trial court's order.
Background
Fowler, a Texas resident, sought to obtain a copyright for some computer software he had developed. While on the internet, he came across Litman's website. Litman and his firm are located in Virginia. Fowler called and left a message for Litman. Litman contacted Fowler by phone and made the decision that he could assist Fowler with obtaining a copyright registration. He instructed Fowler to fill out a form available on the website and also pay the fee through the website. Fowler followed Litman's instructions. Litman sent Fowler an agreement by mail. Fowler also mailed documentation regarding the software from Texas to Litman in Virginia. Litman obtained the copyright registration for Fowler.
Subsequently, Fowler sued Bell Helicopter when he learned that it had used the software he had copyrighted. That lawsuit was dismissed. The attorneys who had represented Fowler in the Bell Helicopter lawsuit sued Fowler for their attorney's fees. Fowler asserted a counterclaim for legal malpractice. Fowler then filed a third-party claim against Litman claiming that his negligence in filing the copyright application caused him to lose his case against Bell Helicopter.
Litman filed a special appearance and an amended special appearance. Fowler filed a response. After conducting a hearing, the trial court granted Litman's amended special appearance. This interlocutory appeal timely followed.
Standard of Review and Applicable Law
Whether a court has personal jurisdiction over a nonresident defendant is a question of law. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex. 2002). In reviewing a trial court's ruling on a special appearance, we examine all the evidence in the record to determine if the nonresident defendant negated all possible grounds for personal jurisdiction. Reiff v. Roy, 115 S.W.3d 700, 705 (Tex.App.-Dallas 2003, pet. denied). When, as in this case, the trial court does not file findings of fact and conclusions of law, all facts necessary to support the order and supported by the evidence are implied. Id. We reverse the trial court's ruling only when the court's implied findings and resulting order are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong. Id. The long-arm statute authorizes Texas courts to exercise jurisdiction over nonresident defendants doing business within the State. See generally Tex. Civ. Prac. Rem. Code Ann. §§ 17.041-.045 (Vernon 1997 Supp. 2007). Texas courts may exercise personal jurisdiction over a nonresident defendant only if (1) the defendant has established minimum contacts with Texas and (2) exercising jurisdiction comports with traditional notions of fair play and substantial justice. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. Id. at 793. A defendant must then negate all bases for personal jurisdiction alleged by the plaintiff. Id.
In evaluating the extent of the defendant's contacts with Texas, the touchstone of our jurisdictional analysis is "purposeful availment." Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In determining whether the defendant has purposefully availed itself of the privilege of conducting activities within Texas, we look only to the defendant's contacts and not unilateral contacts of third parties. See id. at 784-85. We examine only purposeful contacts of the defendant itself that are not random, isolated, or fortuitous. Id. at 785.
A nonresident defendant's minimum contacts may result in either general or specific personal jurisdiction. BMC Software, 83 S.W.3d at 795-96. General jurisdiction exists if the defendant has established continuous and systematic contacts with Texas. Id. at 796. In determining whether there is general jurisdiction, the minimum contacts analysis becomes more demanding and the contacts must be substantial. Id. at 797. Specific jurisdiction arises when the nonresident defendant has established minimum contacts by purposefully availing itself of the privilege of conducting activities in Texas and its liability arises from or is related to those contacts. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007).
Application of Law to Facts
Although Fowler asserts four separate issues, he does not address them separately. We will first address the issue of general jurisdiction and then the issue of specific jurisdiction.
As a ground for general jurisdiction, Fowler relies upon Litman's website, his yellow pages listings, and representation of other Texas clients. For purposes of establishing personal jurisdiction, websites fall into three categories: (1) fully interactive websites used for transacting business over the internet, (2) interactive websites allowing the exchange of information between a potential customer and a host computer, and (3) passive websites used only for advertising over the internet. Reiff, 115 S.W.3d at 705-06. In cases involving interactive websites, the degree of interactivity determines whether there is personal jurisdiction. Id. at 706.
Fowler contends Litman's website is interactive. Litman counters that his website is passive and cannot provide a basis for the trial court to assert jurisdiction over him. Litman contends his website is similar to the website in Michel v. Rocket Eng'g Corp., 45 S.W.3d 658 (Tex.App.-Fort Worth 2001, no pet.). Although the website in Michel allowed a potential customer to send information through the website, the company could not respond directly over the internet. Id. at 678. When the company received information from a potential customer through the internet, a sales representative would personally contact that person. The court held that the company's website was passive advertising over the internet and not a purposeful activity directed toward Texas residents. Id; see also Mink v. AAAA Dev., L.L.C., 190 F.3d 333, 336 (5th Cir. 1999) (website passive where customer could send information through website but no opportunity for response by host computer).
Fowler relies upon cases where websites do allow responses from the host computers. See I JC Corp. v. Helen of Troy, L.P. 164 S.W.3d 877 (Tex.App.-El Paso 2005, pet. denied); Jones v. Beech Aircraft Corp., 995 S.W.2d 767 (Tex.App.-San Antonio 1999, pet. dism'd w.o.j.). In I JC Corp., customers were able to place orders through the website. I JC Corp., 164 S.W.3d at 888-89. Jones involved a website that not only allowed the user to input information but also allowed a direct response from the host computer directing the customer to its nearest representative in Texas. Jones 995 S.W.2d at 773.
In his affidavit, Litman testified that his website did not allow anyone from his office to respond directly over the internet to information supplied by a potential client. Direct contact was required to establish an attorney-client relationship. Litman first had to have contact either by phone or e-mail with the potential client and determine whether he could perform the legal service requested. These undisputed facts distinguish Litman's website from those in I JC Corp. and Jones where the host computer was able to provide a direct response. We agree with Litman that his website is like the one in Michel that the court determined was passive.
Moreover, past telephone listings in the yellow pages in some Texas cities are insufficient to confer general jurisdiction over Litman. See Van Pelt v. Best Workover, Inc., 798 S.W.2d 14, 17 (Tex.App.-El Paso 1990, no writ). Fowler also relies upon the fact that Litman has represented approximately fifty clients from Texas in his twenty-plus year legal career. Those fifty clients represent a small fraction of Litman's client base. This Court has previously held that a nonresident attorney's contacts including the representation of other Texas clients and the acceptance of payments in the underlying lawsuit from a Texas resident were "minimal and fortuitous" and were "not a result of [the attorney's] purposefully conducted activities within the State." Myers v. Emery, 697 S.W.2d 26, 32 (Tex.App.-Dallas 1985, no writ). We hold that Litman's representation of fifty Texas clients over twenty-plus years does not constitute substantial, systematic, and continuous contacts necessary to establish general jurisdiction. See BMC Software, 83 S.W.3d at 796. We conclude the trial court properly determined that it lacked general jurisdiction over Litman. We turn now to the issue of specific jurisdiction. In his affidavit, Litman said Fowler contacted his office by phone about obtaining a copyright registration. All legal services for Fowler were rendered in either Arlington, Virginia or Washington, D.C. Litman received all payments from Fowler for his services in Virginia.
In his affidavit, Fowler says that he learned of Litman through his website. He contacted Litman by phone and also filled out an information form on the website. Litman returned Fowler's call. Litman agreed to handle the copyright registration for Fowler and instructed him to pay the fee through the website. As to the Texas contacts, Fowler stated the following in his affidavit:
During the entire time Litman represented me I resided in Euless, Texas. I performed my internet search in Euless, Texas, to find Litman. I reviewed material and advice in Litman's interactive site regarding copyrights from Euless, Texas. I filled out all the questions and applications regarding the copyright through Litman's interactive site in Euless, Texas and paid for Litman's fees from Euless, Texas. Additionally, I created and wrote L2RF in Euless, Texas. All my correspondence to Litman was drafted in and sent from Texas. All the advice Litman provided to me were given to me while I was in Texas. All the information that Litman requested of me regarding the copyright, I gathered, created, made and/or wrote in Texas. I performed every part of my agreement with Litman from and in Texas. I performed no part of my agreement with Litman from outside of the State of Texas. Additionally, the software the copyright sought to protect was used in Texas by Bell Helicopter.
Each of the contacts Fowler relies upon concern his own conduct, not Litman's conduct. In determining whether a defendant has purposely availed himself of the privilege of conducting business in Texas, we look only at the defendant's conduct. See Michiana Easy Livin' Country, Inc. 168 S.W.3d at 784-85. Fowler's own conduct in Texas cannot supply a basis for exercising specific jurisdiction over Litman, the nonresident defendant. See 3-D Elec. Co., Inc. v. Barnett Const. Co., 706 S.W.2d 135, 142-43 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).
We conclude the trial court properly granted Litman's amended special appearance. We overrule Fowlers' issues and affirm the trial court's order.