Evergreen Media Holdings, LLC and Tony DeRosa-Grund v. FilmEngine Entertainment, LLC ( 2016 )


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  •                                      In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    _________________
    NO. 09-14-00364-CV
    _________________
    EVERGREEN MEDIA HOLDINGS, LLC AND TONY DEROSA-GRUND,
    Appellants
    V.
    FILMENGINE ENTERTAINMENT, LLC, Appellee
    ________________________________________________________________________
    On Appeal from the 284th District Court
    Montgomery County, Texas
    Trial Cause No. 14-02-01508-CV
    ________________________________________________________________________
    MEMORANDUM OPINION
    In this appeal, the appellants, Evergreen Media Holdings, LLC and Tony
    DeRosa-Grund (collectively “Evergreen) contend the trial court erred by granting a
    special appearance filed by the appellee, FilmEngine Entertainment, LLC.
    (“FilmEngine”). Evergreen raises two issues on appeal: (1) whether the trial court
    abused its discretion in denying Evergreen’s motion for continuance to conduct
    1
    jurisdictional discovery; and (2) whether the trial court erred by granting
    FilmEngine’s special appearance. We affirm.
    I. Background
    Evergreen is a Texas limited liability company, and Tony Derosa-Grund is
    its executive chairman. FilmEngine is a Delaware company licensed to do business
    in California. Anthony Rhulen is its chief executive officer. In July 2013,
    Evergreen entered into a contract with FilmEngine regarding two film projects. On
    February 7, 2014, Evergreen sued FilmEngine for breach of contract, breach of an
    implied covenant of good faith and fair dealing, and for declaratory judgment.
    Evergreen alleged that it entered into agreements with FilmEngine in connection
    with two movie productions wherein Evergreen would provide script-writing
    services to FilmEngine. Evergreen further alleged that it performed under the
    agreements, but FilmEngine failed to pay Evergreen for the writing services and
    thus materially breached its agreements with Evergreen.
    On March 21, 2014, FilmEngine filed a special appearance and asked the
    trial court to dismiss the lawsuit for lack of personal jurisdiction because
    FilmEngine had no purposeful contacts with the State of Texas. Evergreen filed its
    response on May 8, 2014. On August 22, 2014, the trial court granted
    FilmEngine’s special appearance and dismissed the case. Evergreen appealed. See
    
    2 Tex. Civ
    . Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp. 2015) (providing
    for interlocutory appeal of grants or denials of a special appearance of a
    defendant).
    II. Motion for Continuance
    In its first issue, Evergreen contends the trial court abused its discretion in
    denying its request for a continuance to allow it to conduct jurisdictional discovery
    before the trial court ruled on FilmEngine’s special appearance. An appellate court
    will not disturb the trial court’s ruling on a motion to continue a special appearance
    hearing to obtain discovery absent a showing of a clear abuse of discretion. BMC
    Software Belgium, N.V. v. Marchand, 
    83 S.W.3d 789
    , 800 (Tex. 2002); Barron v.
    Vanier, 
    190 S.W.3d 841
    , 847 (Tex. App.—Fort Worth 2006, no pet.) (op. on
    reh’g).
    Texas Rule of Civil Procedure 120a(3) governs jurisdictional discovery. The
    rule provides that “[t]he court shall determine the special appearance on the basis
    of the pleadings, any stipulations made by and between the parties, such affidavits
    and attachments as may be filed by the parties, the results of discovery processes,
    and any oral testimony.” Tex. R. Civ. P. 120a(3). Rule 120a(3) further states that if
    it should appear from reasons stated in the opposing party’s affidavits that he
    cannot “present by affidavit facts essential to justify his opposition, the court may
    3
    order a continuance to permit affidavits to be obtained or depositions to be taken or
    discovery to be had or may make such other order as is just.” 
    Id. In deciding
    whether a trial court abused its discretion by denying a motion for continuance
    seeking additional time to conduct discovery, the Texas Supreme Court has
    considered the following non-exclusive factors: (1) the length of time the case has
    been on file; (2) the materiality and purpose of the discovery sought; and (3)
    whether the party seeking the continuance has exercised due diligence to obtain the
    discovery sought. Joe v. Two Thirty Nine Joint Venture, 
    145 S.W.3d 150
    , 161
    (Tex. 2004) (considering these factors in the summary judgment context); 
    Barron, 190 S.W.3d at 847
    (considering these factors in the special appearance context).
    Evergreen filed its lawsuit on February 7, 2014. FilmEngine filed its special
    appearance on March 21, 2014. According to the parties’ appellate briefing,
    FilmEngine’s special appearance was originally set for submission on April 30,
    2014. Evergreen filed its response to FilmEngine’s special appearance on May 8,
    2014. The trial court issued its ruling on FilmEngine’s special appearance on
    August 22, 2014. Evergreen argues that the length-of-time factor weighs in its
    favor because it had less than two months to conduct discovery before it was
    required to file a response. FilmEngine responds that Evergreen actually had over
    five months to conduct discovery because the trial court did not grant the special
    4
    appearance until August 22, 2014. FilmEngine contends this was sufficient time
    for Evergreen to conduct jurisdictional discovery.
    In its original petition, Evergreen alleged that the court had personal
    jurisdiction over FilmEngine “because this lawsuit arises from, was connected with
    an act or transaction, and relates to the purposeful acts of the non-resident
    Defendant in Texas, and those purposeful acts directed towards Texas.” Thus,
    Evergreen alleged only specific jurisdiction against FilmEngine. See Searcy v.
    Parex Res., Inc., Nos. 14-0293, 14-0295, 
    2016 WL 3418248
    , at *5, 9 (Tex. June
    17, 2016) (internal citations and quotations omitted) (explaining that general
    jurisdiction arises when the defendant’s contacts with the forum state are so
    continuous and systematic as render the defendant essentially at home in the forum
    state, whereas specific jurisdiction exists when the plaintiff’s claims arise out of or
    are related to the defendant’s contact with the forum state). However, in
    Evergreen’s motion for continuance, it asked the court for a continuance to conduct
    additional discovery “evidencing FilmEngine’s general contacts with Texas.”
    Evergreen explained that it would seek discovery of evidence that FilmEngine
    “purposefully markets their movies to Texas residents, advertises in Texas, sells
    their movies to Texas residents, and otherwise engages in significant business with
    Texas residents.”
    5
    Evergreen did not allege in its motion for continuance that it had exercised
    due diligence in conducting discovery. There is no evidence in the appellate record
    that Evergreen attempted to engage in discovery related to the special appearance,
    and Evergreen admitted in its motion for continuance that it had not conducted any
    jurisdictional discovery.
    Evergreen relies on Barron v. Vanier to support its position that it was
    entitled to a continuance. In Barron, the appellate court held that the trial court
    abused its discretion in denying the plaintiff’s motion for continuance of a special
    appearance hearing to permit him to conduct further discovery on the issue of
    personal jurisdiction where the special appearance hearing was held two months
    after the filing of the special appearance, and the plaintiff sought information
    which, if it existed and was discovered, could support his allegations of specific
    personal jurisdiction over the 
    defendants. 190 S.W.3d at 847-51
    .
    This case is distinguishable from Barron. In Barron, all three factors
    weighed in favor of granting the motion for continuance, while, here, the
    application of the factors is not so clearly defined. See 
    id. The first
    factor does tend
    to support a continuance. Evergreen had less than two months to conduct discovery
    before its response to the special appearance was due. See 
    id. at 847-48.
    6
    The second factor weighs against Evergreen’s motion for a continuance. In
    Barron, the plaintiff alleged personal jurisdiction over defendants based on specific
    jurisdiction and then sought discovery of facts relating to both specific and general
    jurisdiction. 
    Id. at 849.
    FilmEngine contends Evergreen only sought discovery on
    matters related to general jurisdiction. Evergreen responds that it sought discovery
    of matters relevant to specific personal jurisdiction when it requested to depose
    Rhulen about various factual misstatements Rhulen made in his affidavit regarding
    the agreements. However, Evergreen’s request in its motion for continuance was
    not as specific as Evergreen now contends on appeal; rather, in pertinent part,
    Evergreen argued the following to the trial court:
    44. Upon information and belief, FilmEngine purposefully
    markets their movies to Texas residents, advertises in Texas, sells
    their movies to Texas residents, and otherwise engages in significant
    business with Texas residents. Plaintiffs, however, do not have
    personal knowledge of the extent of FilmEngine’s contacts with Texas
    and its residents that are unrelated to this lawsuit, and would therefore
    need to conduct discovery before providing the Court with affidavits
    and other documents evidencing FilmEngine’s general contacts with
    Texas.
    45. Plaintiffs request that the Court permit them to serve
    requests for production, requests for admission, and interrogatories
    relating to FilmEngine’s contacts with Texas. Further, once Plaintiffs
    receive and review FilmEngine’s responses, they intend to request the
    deposition of FilmEngine’s corporate representative as well as its
    CEO, Anthony Rhulen, who provided an affidavit in support of
    FilmEngine’s Special Appearance. Because the jurisdictional issue
    will not be ripe for the Court’s consideration until [all] of the
    7
    jurisdictional facts are known—and not just those about which Mr.
    Rhulen decided to advise the Court—the Court should defer ruling on
    FilmEngine’s Special Appearance for at least 90 days so that the
    parties can engage in jurisdictional discovery.
    (internal footnotes and citations omitted). Evergreen argued that the trial court
    should not decide the special appearance until it had all jurisdictional facts, but the
    only facts Evergreen specifically identified as being unknown in its motion for
    continuance are those related to general jurisdiction. Therefore, we conclude the
    facts Evergreen specifically sought to discover were not relevant to Evergreen’s
    allegations that personal jurisdiction existed over FilmEngine on the basis of
    specific personal jurisdiction.
    Application of the third factor supports the trial court’s denial of Evergreen’s
    motion for continuance. In Barron, the plaintiff served requests for production,
    requests for disclosure, and notices of depositions. 
    Id. at 850.
    Here, there is no
    evidence in the record that Evergreen attempted to diligently use the rules of civil
    procedure for discovery. See State v. Wood Oil Distrib., Inc., 
    751 S.W.2d 863
    , 865
    (Tex. 1988) (addressing diligence factor). Evergreen contends that because it only
    had two months, it was unable to propound discovery. FilmEngine responds that
    two months was enough time to at least attempt to engage in discovery.
    FilmEngine argues that Evergreen’s lack of diligence is further reflected in the fact
    that it did not attempt jurisdictional discovery after filing its response. Based on the
    8
    record, we note that after submission of the special appearance, the trial court
    delayed its ruling for approximately three months, and Evergreen did not seek to
    conduct discovery or file supplemental affidavits. See Tex. R. Civ. P. 120a(3)
    (providing the court shall determine a special appearance based on the pleadings,
    stipulations, affidavits and attachments filed by the parties, oral testimony, and the
    results of discovery processes); Phillips Dev. & Realty, LLC v. LJA Eng’g, Inc.,
    No. 14-14-00858-CV, 
    2016 WL 3610457
    , at * 6 (Tex. App.—Houston [14th Dist.]
    June 30, 2016, no pet.) (holding that a trial court has discretion to consider late-
    filed affidavits in special appearance proceedings); Tempest Broad. Corp. v. Imlay,
    
    150 S.W.3d 861
    , 870 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (suggesting
    that Rule 120a(3) appears to give the trial court discretion to grant the party
    opposing a special appearance other forms of relief when the court deems it “just”
    to do so).
    Based on our consideration of all the factors, it was not an abuse of
    discretion for the trial court to deny Evergreen’s motion for continuance. See 
    Joe, 145 S.W.3d at 161
    . This is not a situation where Evergreen was unable to present
    facts to support its opposition to FilmEngine’s special appearance. See Tex. R. Civ.
    P. 120a(3). Evergreen submitted an unsworn declaration that specifically disputed
    FilmEngine’s facts denying that the court had specific personal jurisdiction. See
    
    9 Tex. Civ
    . Prac. & Rem. Code Ann. § 132.001(a) (West Supp. 2015) (providing that
    “an unsworn declaration may be used in lieu of a written sworn declaration,
    verification, certification, oath, or affidavit required by statute or required by a
    rule, order, or requirement adopted as provided by law”). Additionally, a
    substantial amount of the information regarding general jurisdiction that Evergreen
    seeks is contained in the record, including that FilmEngine does not maintain an
    office in Texas, does not own property in Texas, does not employ any Texas
    residents, has no accounts in Texas, has not purchased assets in Texas, and has
    never engaged in business in Texas. See In re Guardianship of Cardenas, No. 13-
    09-00560-CV, 
    2010 WL 2543650
    , at *10 (Tex. App.—Corpus Christi June 24,
    2010, no pet.) (mem. op.) (concluding that plaintiff’s rights were not disregarded
    when most of the additional facts sought by plaintiff were already contained in the
    record).
    We overrule Evergreen’s first issue.
    III. Special Appearance
    In its second issue, Evergreen contends the trial court erred by granting
    FilmEngine’s special appearance.
    10
    A.    Standard of Review and Burdens of Proof
    The question of whether a court has personal jurisdiction over a nonresident
    defendant is a question of law we review de novo. Kelly v. Gen. Interior Constr.,
    Inc., 
    301 S.W.3d 653
    , 657 (Tex. 2010). In a special appearance, the plaintiff and
    the defendant bear shifting burdens of proof. 
    Id. at 658.
    The plaintiff bears the
    initial burden to plead sufficient allegations to bring the nonresident defendant
    within the reach of Texas’s long-arm statute. 
    Id. If the
    plaintiff pleads sufficient
    jurisdictional allegations, then the defendant bears the burden to negate all bases of
    personal jurisdiction alleged by the plaintiff. 
    Id. It is
    the plaintiff’s pleadings that
    define the scope and nature of the lawsuit; thus, the defendant’s burden is only to
    negate jurisdictional allegations alleged in the plaintiff’s pleading. 
    Id. A defendant
    may negate the plaintiff’s jurisdictional allegations on either a factual or legal
    basis. 
    Id. at 659.
    If the nonresident defendant presents evidence that it had no
    contacts with Texas, then it effectively disproves the plaintiff’s allegations. 
    Id. But, the
    plaintiff may respond with its own evidence affirming its allegations. 
    Id. As such,
    the trial court must frequently resolve fact questions before deciding the
    jurisdictional issue. BMC 
    Software, 83 S.W.3d at 794
    . We will not “disturb a trial
    court’s resolution of conflicting evidence that turns on the credibility or weight of
    the evidence.” Ennis v. Loiseau, 
    164 S.W.3d 698
    , 706 (Tex. App.—Austin 2005,
    11
    no pet.). “When a trial court does not issue findings of fact and conclusions of law
    with its special appearance ruling, all facts necessary to support the judgment and
    supported by the evidence are implied.” BMC 
    Software, 83 S.W.3d at 795
    . If the
    appellate record includes a reporter’s and clerk’s record, implied findings are not
    conclusive and may be challenged for legal and factual sufficiency. 
    Id. Finally, we
    must be mindful that due process requires our jurisdictional
    inquiry to be separate and distinct from the underlying merits of the parties’
    claims. Booth v. Kontomitras, 
    485 S.W.3d 461
    , 476-77 (Tex. App.—Beaumont
    2016, no pet.). Thus, when viewing Evergreen’s jurisdictional allegations, we ask
    only whether Evergreen’s allegations are sufficient to invoke the exercise of
    personal jurisdiction over FilmEngine without regard to the merits of Evergreen’s
    claims. See 
    id. at 477.
    B.    Personal Jurisdiction
    Our consideration of personal jurisdiction involves issues of both federal and
    state law. Searcy, 
    2016 WL 3418248
    , at *5. A nonresident defendant is subject to
    the personal jurisdiction of Texas if (1) the Texas long-arm statute authorizes the
    exercise of jurisdiction, and (2) the exercise of jurisdiction comports with federal
    and state constitutional due process guarantees. 
    Kelly, 301 S.W.3d at 657
    . Because
    the Texas long-arm statute provides for personal jurisdiction that extends to the
    12
    limits of the United States Constitution, federal due process requirements “shape
    the contours of Texas courts’ jurisdiction reach.” Searcy, 
    2016 WL 3418248
    , at *5.
    Personal jurisdiction can be established over a nonresident only if the defendant
    has purposefully established “minimum contacts” with the forum state and the
    exercise of jurisdiction over the defendant comports with “traditional notions of
    fair play and substantial justice.” Daimler AG v. Bauman, 
    134 S. Ct. 746
    , 754
    (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 
    564 U.S. 915
    ,
    923 (2011)); Searcy, 
    2016 WL 3418248
    , at *5.
    As discussed above, Evergreen only alleged specific personal jurisdiction,
    which exists when the defendant purposefully avails itself of conducting activities
    in the forum states and the cause of action arises from or is related to those
    activities. See Burger King Corp. v. Rudzewicz, 
    471 U.S. 462
    , 472 (1985); Searcy,
    
    2016 WL 3418248
    , at *5. The first step in the personal jurisdiction analysis is to
    determine whether a nonresident defendant purposefully availed itself of the
    benefits and protections of the state’s laws by establishing minimum contacts with
    Texas. In the “purposeful-availment” analysis as applied to specific personal
    jurisdiction: (1) only the defendant’s contacts with Texas are considered; (2) the
    defendant’s contacts must be purposeful, rather than random, fortuitous, isolated,
    or attenuated; (3) the defendant must have sought some benefit, advantage, or
    13
    profit by availing itself of Texas jurisdiction. Michiana Easy Livin’ Country, Inc. v.
    Holten, 
    168 S.W.3d 777
    , 785 (Tex. 2005); see also Searcy, 
    2016 WL 3418248
    , at
    *5. Our analysis is focused on the quality and nature of the defendant’s contacts,
    not the number of contacts. Am. Type Culture Collection, Inc. v. Coleman, 
    83 S.W.3d 801
    , 806 (Tex. 2002). “Even a single purposeful contact may be sufficient
    to meet the requirements of minimum contacts when the cause of action arises
    from the contact.” Micromedia v. Automated Broad. Controls, 
    799 F.2d 230
    , 234
    (5th Cir. 1986); see also Crithfield v. Boothe, 
    343 S.W.3d 274
    , 286 (Tex. App.—
    Dallas 2011, no pet.).
    The United States Supreme Court has explained that an individual’s contract
    with a nonresident defendant cannot alone establish sufficient minimum contacts in
    the plaintiff’s home forum for specific jurisdiction to exist. Burger 
    King, 471 U.S. at 478
    ; see Walden v. Fiore, 
    134 S. Ct. 1115
    , 1122-23 (2014); Hoagland v.
    Butcher, 
    474 S.W.3d 802
    , 815 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
    The Court has rejected the notion that personal jurisdiction is determined solely by
    the place of contracting or of performance. Burger 
    King, 471 U.S. at 478
    . The
    Court explained that in determining whether a defendant has purposefully
    established minimum contacts within the forum state in a contract situation, the
    court should consider the parties’ “prior negotiations and contemplated future
    14
    consequences, along with the terms of the contract and the parties’ actual course of
    dealing[.]” 
    Id. at 479.
    Only those acts which relate to the formation of the contract
    and the subsequent breach are relevant in a specific jurisdiction analysis. Religious
    Tech. Ctr. v. Liebreich, 
    339 F.3d 369
    , 375 (5th Cir. 2003). Ultimately, the goal of
    our analysis is to determine whether a nonresident’s conduct and connection to a
    forum state are such that he should reasonably anticipate being haled into court
    there. Burger 
    King, 471 U.S. at 474-75
    .
    “The contract’s place of performance is an important consideration.”
    
    Hoagland, 474 S.W.3d at 815
    . If a contract is specifically designed to benefit a
    nonresident defendant with a Texas resident’s skills performed in Texas, then it is
    reasonable to subject the nonresident defendant to Texas jurisdiction in connection
    with litigation arising from that contract. 
    Id. We will
    also consider the contract’s
    choice-of-law provision. Burger 
    King, 471 U.S. at 482
    . A nonresident’s action in
    sending funds to Texas in relation to a contract is another factor to consider. See
    Bissbort v. Wright Printing & Pub. Co., 
    801 S.W.2d 588
    , 589 (Tex. App.—Fort
    Worth 1990, no writ) (considering it a relevant fact that a nonresident defendant
    wired a large sum of money to a Texas bank in determining minimum contacts);
    but see Falcon Crest Aviation Supply, Inc. v. Jet Mgmt., LLC, No. 14-11-00789-
    CV, 
    2012 WL 4364661
    , at *4 (Tex. App.—Houston [14th Dist.] Sept. 25, 2012, no
    15
    pet.) (mem. op.) (stating that a nonresident’s defendant’s actions in sending
    payment to Texas did not support a finding of jurisdiction when place of payment
    was dictated by plaintiff). A nonresident’s action in initiating phone calls from the
    nonresident’s state directed to Texas is not enough to satisfy the minimum contacts
    requirements. See Hsu v. Liu, No. 09-06-423 CV, 
    2007 WL 3395644
    , at *1–4
    (Tex. App.—Beaumont Nov. 15, 2007, pet. denied) (mem. op.).
    As alleged by Evergreen, “[p]ersonal jurisdiction over the non-resident
    Defendant is proper because this lawsuit arises from, was connected with an act or
    transaction, and relates to the purposeful acts of the non-resident Defendant in
    Texas, and those purposeful acts directed towards Texas.” Evergreen further
    alleged in its petition that FilmEngine entered into the agreements with Evergreen,
    a Texas business, and DeRosa-Grund, a Texas resident and that FilmEngine
    “transact[ed] business in Montgomery County, Texas.” A plaintiff is not required
    to plead in its petition the theories or bases of personal jurisdiction upon which it
    relies. Huynh v. Nguyen, 
    180 S.W.3d 608
    , 619 (Tex. App.—Houston [14th Dist.]
    2005, no pet.). To meet its initial burden, it is sufficient if the plaintiff pleads facts
    sufficient to bring a nonresident defendant within the provisions of the long-arm
    statute. 
    Id. A plaintiff
    satisfies this minimal requirement by an allegation that the
    nonresident defendant was doing business in Texas. Id.; see also Tex. Civ. Prac. &
    16
    Rem. Code Ann. § 17.042(1) (West 2015). Here, we conclude Evergreen met its
    initial burden and the burden then shifted to FilmEngine to negate every basis for
    jurisdiction alleged by Evergreen. See 
    Huynh, 180 S.W.3d at 619
    .
    To negate Evergreen’s pleadings, FilmEngine denied in its special
    appearance that it had contacts with Texas or had purposefully availed itself of the
    privilege of doing business in Texas. FilmEngine further stated that it is a
    Delaware limited liability company, has no offices in Texas, and owns no property
    in Texas. To respond to the allegations that FilmEngine engaged in purposeful acts
    directed towards Texas, FilmEngine submitted the affidavit of its CEO, Anthony
    Rhulen. In his affidavit, Rhulen stated that FilmEngine has never purposefully
    sought to enter into a contract with a Texas resident for services to be provided in
    Texas, except for legal counsel in this case. Regarding the agreements with
    Evergreen, Rhulen stated that “[a]ll discussions, meetings, and investigations
    before and after the agreements were conducted in California[,]” where
    FilmEngine’s principal place of business is located. Rhulen testified that the
    agreements at issue had a choice-of-law provision designating the application of
    California law. Rhulen testified that DeRosa-Grund solicited him in California in
    the past about rights he had in some intellectual property. He stated that DeRosa-
    Grund approached him in July 2013 in California regarding the two motion picture
    17
    deals he had and asked FilmEngine to become involved with the production of the
    projects and to assist in obtaining financing and distribution of the product. Rhulen
    testified that every in-person meeting regarding the projects occurred in California.
    He further stated that the two agreements forming the basis of Evergreen’s lawsuit
    were executed in California. He denied ever meeting DeRosa-Grund in Texas.
    Rhulen stated that he primarily communicated with DeRosa-Grund by email and
    some by phone, but he had no knowledge of DeRosa-Grund’s locations during
    these communications. The agreements have no reference to Texas, and there is no
    indication or agreement that production or distribution would take place in Texas.
    Evergreen argues that FilmEngine is subject to the specific jurisdiction of
    Texas courts because (1) FilmEngine entered into the agreements with a Texas
    resident and Texas business; (2) Evergreen performed all obligations under the
    agreements in Texas; (3) FilmEngine solicited Evergreen in Texas to initiate
    negotiations for the agreements; (4) Evergreen executed the agreements in Texas;
    (5) FilmEngine mailed the executed copies of the agreements to Evergreen in
    Texas; (6) FilmEngine knew Evergreen was located in Texas and performing
    obligations under the agreements in Texas; (7) FilmEngine communicated with
    Evergreen hundreds of times over the course of more than one year about the
    execution and performance of the agreements while Evergreen was located in
    18
    Texas; (8) FilmEngine made a wire transfer of funds to Evergreen’s bank in Texas;
    (9) FilmEngine mailed a Form 1099 to Evergreen in Texas; (10) the agreements
    contemplated a long-term relationship, and therefore FilmEngine contemplated
    having continued contacts with Evergreen in the future related to the agreements;
    and (11) FilmEngine negotiated the agreements with Evergreen for more than a
    year, while Evergreen was located in Texas. Evergreen filed DeRosa-Grund’s
    affidavit with the trial court to support these allegations. Many of Evergreen’s
    allegations point to its own actions, but Evergreen’s actions are not relevant to our
    determination of whether FilmEngine purposefully availed itself in Texas. See
    
    Michiana, 168 S.W.3d at 785
    ; see also Searcy, 
    2016 WL 3418248
    , at *5.
    Evergreen’s argument that FilmEngine is subject to specific jurisdiction in Texas
    because FilmEngine communicated with DeRosa-Grund numerous times while
    DeRosa-Grund was allegedly located in Texas is unpersuasive. Evergreen seems to
    suggest that these communications show FilmEngine targeted or purposely
    directed communications towards Texas or a Texas resident. We note that the
    initial emails between DeRosa-Grund and FilmEngine dated in June and August of
    2012, contain no reference to DeRosa-Grund or Evergreen’s physical address in
    Texas. There is a vague reference by DeRosa-Grund that he has a friend “here in
    Houston” in one of the emails dated months after the parties started
    19
    communicating about the projects. DeRosa-Grund’s email signature block contains
    only his name, title, the name of the company, his direct phone line, fax number,
    and email address. It does not contain his physical address. In August of 2013, over
    a year after the initial email communication reflected in the record, there is an
    email communication that references an address for Evergreen in Texas.
    FilmEngine alleges and supports with affidavit testimony that DeRosa-
    Grund reached out to FilmEngine first while DeRosa-Grund was located in
    California, not Texas. Rhulen also states that all in-person meetings occurred in
    California, that DeRosa-Grund represented to him that his film representative was
    located in California, and that his legal counsel was located in California.
    Additionally, as FilmEngine argues in its brief, DeRosa-Grund could have been
    anywhere in the world when he received the communications from FilmEngine,
    not just Texas.
    While Evergreen’s affidavit controverts some of FilmEngine’s allegations
    and evidence regarding jurisdiction, at this stage of the litigation, we must presume
    the trial court resolved all factual disputes in favor of its judgment. See 
    Coleman, 83 S.W.3d at 806
    . We conclude FilmEngine’s evidence conclusively negates all
    jurisdictional grounds alleged by Evergreen. FilmEngine’s motion and affidavit
    establishes that DeRosa-Grund approached FilmEngine in California, all in-person
    20
    meetings to negotiate the agreements occurred in California, the agreements were
    executed in California, the parties agreed that California law would govern the
    agreements, and that FilmEngine had no intention to engage Evergreen to perform
    its obligations under the agreements in Texas. Because FilmEngine lacks minimum
    contacts with Texas, we need not determine whether the exercise of jurisdiction
    would offend traditional notions of fair play and substantial justice. See Baldwin v.
    Household Int’l, Inc., 
    36 S.W.3d 273
    , 277 (Tex. App.—Houston [14th Dist.] 2001,
    no pet.). For these reasons, we overrule Evergreen’s second issue.
    Having held that the trial court did not err in denying Evergreen’s motion for
    continuance and granting FilmEngine’s special appearance, we affirm the trial
    court’s judgment.
    AFFIRMED.
    ______________________________
    CHARLES KREGER
    Justice
    Submitted on June 5, 2015
    Opinion Delivered September 22, 2016
    Before Kreger, Horton and Johnson, JJ.
    21