Patrick Conway v. Irving Shapiro ( 1992 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-167-CV





PATRICK CONWAY,

APPELLANT

vs.





IRVING SHAPIRO,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY

NO. 210,551, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

PER CURIAM

Appellant Patrick Conway appeals from an order of the county court at law of Travis County granting appellee Irving Shapiro's motion objecting to the trial court's jurisdiction over him. We will affirm the order of the trial court.

Conway, a Texas resident, organizes and promotes workshops for artists. Shapiro is an Illinois resident and artist. In 1990, Conway and Shapiro agreed that Shapiro would teach at a watercolor workshop in Guadalajara, Mexico, in December 1991 for a fee that Conway would pay. In September 1991, Shapiro notified Conway that he was unable to teach as scheduled because of ill health. After learning that Shapiro was teaching other workshops, Conway requested that Shapiro perform his obligations or reimburse Conway for expenses incurred in promoting the workshop. When Shapiro did neither, Conway filed suit in the county court at law of Travis County seeking damages for anticipatory breach of contract.

Shapiro filed his sworn motion, pursuant to Tex. R. Civ. P. 120a, challenging the trial court's jurisdiction on the basis that he is a nonresident of Texas and does not have sufficient contacts with the state to support the jurisdiction of a Texas court. Shapiro requested the court to dismiss the suit for want of jurisdiction. After a hearing, the trial court issued its order granting Shapiro's motion. ⁽¹⁾ In one point of error, Conway contends that the trial court erred in sustaining Shapiro's special appearance.

As the party entering the special appearance, Shapiro had the burden to negate all bases for personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); General Elec. Co. v. Brown & Ross Int'l Distribs., Inc., 804 S.W.2d 527, 529 (Tex. App.--Houston [1st Dist.] 1990, writ denied). On appeal, this Court reviews all the evidence before the trial court to determine the propriety of the trial court's ruling on jurisdiction. Project Eng. USA Corp. v. Gator Hawk, Inc., 833 S.W.2d 716, 719 (Tex. App.--Houston [1st Dist.] 1992, n.w.h.); Carbonit Houston, Inc. v. Exchange Bank, 628 S.W.2d 826, 829 (Tex. App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.); see Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex. 1990). The merits of the cause of action are not before this Court. Memorial Hosp. Sys. v. Fisher Ins. Agency Inc., 835 S.W.2d 645, 648 (Tex. App.--Houston [14th Dist.] 1992, n.w.h.).

A Texas court may exercise jurisdiction over a nonresident if the Texas long-arm statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041-.069 (West 1986), authorizes the exercise of jurisdiction and the exercise of jurisdiction is consistent with federal and state constitutional guarantees. In re S.A.V., 837 S.W.2d 80, 85 (Tex. 1992); Schlobohm, 784 S.W.2d at 356. The long-arm statute authorizes jurisdiction over nonresidents "doing business" in Texas. Tex. Civ. Prac. & Rem. Code § 17.042 (West 1986); Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991); Schlobohm, 784 S.W.2d at 356; Memorial Hosp. Sys., 835 S.W.2d at 648.

Although section 17.042 lists particular acts that constitute "doing business," the statute also provides that other acts of a nonresident may satisfy the doing-business requirement. The broad language of this requirement permits the statute to reach as far as federal constitutional requirements of due process allow. Schlobohm, 784 S.W.2d at 357; U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977). Accordingly, we consider whether the Texas court's exercise of jurisdiction over Shapiro is consistent with federal constitutional requirements of due process. Guardian Royal Exch., 815 S.W.2d at 226; U-Anchor, 553 S.W.2d at 762; Gator Hawk, Inc., 833 S.W.2d at 721.

To ensure compliance with federal constitutional standards, the supreme court has enunciated a formula that tracks the elements of the jurisdictional test that has evolved in United States Supreme Court decisions:

(1) The nonresident defendant . . . must purposefully do some act or consummate some transaction in the forum state;

(2) The cause of action must arise from, or be connected with, such act or transaction. Even if the cause of action does not arise from a specific contact, jurisdiction may be exercised if the defendant's contacts with Texas are continuing and systematic; and

(3) The assumption of jurisdiction must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

Schlobohm, 784 S.W.2d at 358; see O'Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex. 1966).

The supreme court has clarified this formula to require first that the "defendant must have purposefully established ``minimum contacts' with Texas." Accordingly, a "substantial connection" must exist "between the nonresident defendant and Texas arising from action or conduct of the nonresident defendant purposefully directed toward Texas." Guardian Royal Exch., 815 S.W.2d at 230; see S.A.V., 837 S.W.2d at 85; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985); Hanson v. Denckla, 357 U.S. 235, 251 (1958). When a plaintiff asserts specific jurisdiction, the cause of action must arise out of or relate to the nonresident defendant's contacts with the forum state. If a plaintiff alleges general jurisdiction, "continuous and systematic contacts" must exist between the nonresident defendant and Texas. General jurisdiction requires a showing of substantial activities in Texas by the nonresident defendant. S.A.V., 837 S.W.2d at 85; Guardian Royal Exch., 815 S.W.2d at 230.

We first determine whether Shapiro established minimum contacts with Texas, that is, whether a substantial connection exists between Shapiro and Texas arising from his contact or action purposefully directed toward this state. The only evidence Shapiro presented was his sworn special appearance. See Tex. R. Civ. P. 120a(3); Martinez v. Valencia, 824 S.W.2d 719, 723 (Tex. App.--El Paso 1992, no writ) (sworn special appearance that sets out sufficient facts to show lack of jurisdiction establishes prima facie case of no jurisdiction). Shapiro averred that he does not maintain a place of business in Texas; that he has no employees, servants, or agents within the state; that he does not, and is not required to, maintain a registered agent in Texas; and that he does not solicit business here. His only contact with Texas consists of teaching four workshops in the state at the invitation of Texas residents in the years. The evidence provides no other information about these workshops. The agreement underlying Conway's claims was to be performed in Mexico.

At the hearing on Shapiro's motion, Conway testified that Shapiro advertises his availability to teach workshops in several magazines with national circulation, including Texas. After seeing the advertisements, Conway contacted Shapiro. Through a series of letters and telephone conversations between Conway in Texas and Shapiro in Illinois, the two agreed that he would teach at the workshop in Mexico in December 1991. Conway then promoted the workshop from his office in Austin, Texas; he considered promotion to be part of the parties' agreement. ⁽²⁾

Based on the limited evidence presented to the trial court, we conclude that Shapiro's contacts with Texas do not rise to the level of minimum contacts necessary to support jurisdiction over him. The focus of the inquiry is the "actions by [Shapiro] himself that create a ``substantial connection' with the forum State." Burger King Corp., 471 U.S. at 475. Although Shapiro has taught workshops here, such contact does not rise to the level of minimum contacts necessary to support the court's general jurisdiction over him. See Guardian Royal Exch., 815 S.W.2d at 228; Gator Hawk, Inc., 833 S.W.2d at 722 (general jurisdiction requires showing of substantial activities in forum state, not just isolated or sporadic activity).

Conway's original petition alleges specific jurisdiction arising from the parties' agreement. The record before this Court does not show that, in this transaction, Shapiro purposefully directed his activity toward a Texas resident. See Burger King Corp., 471 U.S. at 472. The fact that Shapiro advertised in magazines that circulated in Texas alone is not purposeful activity directed toward this state. See Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 436 (Tex. 1982); Design Info. Sys. v. Feith Sys. & Software, Inc., 801 S.W.2d 569, 570-71 (Tex. App.--Fort Worth 1990), aff'd in part; rev'd in part on other grounds, 813 S.W.2d 481 (Tex. 1991); C.W. Brown Mach. Shop, Inc. v. Stanley Mach. Corp., 670 S.W.2d 791, 793-94 (Tex. App.--Fort Worth 1984, no writ).

Shapiro has not established minimum contacts with Texas; therefore, we overrule Conway's point of error. We affirm the order of the trial court.

[Before Justices Powers, Aboussie and B. A. Smith]

Affirmed

Filed: December 23, 1992

[Do Not Publish]

1. The order does not include language dismissing the cause for want of jurisdiction. By his motion, Shapiro expressly requested the court to dismiss the suit. The order does state that Shapiro moved to dismiss the cause and then orders that his motion be granted. See Tex. R. Civ. P. 120a(4) (if court sustains objection to jurisdiction, it shall issue appropriate order); W. Frank Newton & Jeremy C. Wicker, Personal Jurisdiction and the Appearance to Challenge Jurisdiction in Texas, 38 Baylor L. Rev. 491, 564 (1986).

2. If promotion were part of the agreement, we presume Conway would argue that Shapiro does business in Texas by "contract[ing] by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state." Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1) (West 1986). Shapiro must still, however, have sufficient minimum contacts with the state to satisfy due-process requirements.