Laura Bryan v. Debora Coelho Gordon and Windermere Real Estate/Lane County , 2012 Tex. App. LEXIS 8923 ( 2012 )

Affirmed and Opinion filed October 30, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00040-CV
LAURA BRYAN, Appellant
V.
DEBORA COELHO GORDON AND WINDERMERE REAL ESTATE/LANE
COUNTY, Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2010-25937
OPINION
Appellant, Laura Bryan, appeals the trial court’s grant of a special appearance
filed by appellees, Debora Coelho Gordon and Windermere Real Estate/Lane County,
in Bryan’s suit based on appellees’ alleged torts relative to their representation of Bryan
in an Oregon real estate transaction. We affirm.
I. BACKGROUND
In April 2006, Bryan resided in Oregon and purchased a home there. Bryan
signed a note secured by a second mortgage on the property. Apparently, via assignment,
Citi Mortgage, Inc. became holder of the note and later assigned it to Old Republic
Insurance Company. In September 2007, Bryan left Oregon for personal reasons and
returned to her home state of Texas, where she began residing with her mother in Katy.
At some point, Bryan ceased making mortgage payments on the Oregon property.
Bryan alleges that Citi Mortgage and Titanium Solutions, a nationwide real estate
brokerage firm, had a relationship whereby the entities shared information regarding
financially distressed properties so that they could approach the owners to facilitate a
“short sale.” Titanium would then refer the owner to a real estate agent to represent the
owner in the short sale. In return, Titanium received a share of the agent’s commission.
In late 2007, Citi Mortgage mistakenly identified the Texas home owned by
Bryan’s mother as a financially distressed property. A Titanium employee went to the
Texas home and spoke with Bryan. Bryan informed the employee that the property
involved in foreclosure proceedings was located in Oregon.
Based on a referral from Titanium, appellee Gordon, a real estate agent with
appellee Windermere, telephoned Bryan about representing her in a short sale of the
property. However, the parties dispute whether Bryan or Gordon initiated the contact.
According to Gordon, a Titanium representative relayed to her that Bryan wished to sell
property in Oregon and requested contact from an Oregon real estate agent. In contrast,
Bryan maintains she merely provided her contact information to the Titanium employee
but never requested assistance selling the property or that anyone contact her regarding a
sale. Bryan further maintains that, during this phone conversation, Gordon said she “was
going to help [Bryan] sell [her] home” to avoid “foreclosure” and any delinquency would
be “taken care of” by a short sale. Bryan claims Gordon also made numerous statements
leading Bryan to believe that Gordon was ensuring Bryan’s “best interests” and Bryan
2
was unaware that a secondary lender was precluded under Oregon law from obtaining a
judgment for a deficiency after a foreclosure.
In her deposition, Gordon acknowledged that she and Bryan had a “couple
different phone conversations” before Bryan executed a listing agreement because Bryan
was initially undecided on a course of action. Gordon averred, but Bryan disputes, that
Gordon advised Bryan to consult legal counsel about the proposed listing contract,
Bryan’s concerns regarding the fact the property was in foreclosure proceedings, and her
status if short-sale proceeds were insufficient to satisfy the mortgages.
Bryan did ultimately sign an Oregon listing agreement with appellees. Gordon e-
mailed the contract to Bryan who signed it while she was in Texas and returned it via e-
mail. Gordon further acknowledged that she thereafter made more than fifty telephone
calls and sent multiple e-mails to Bryan concerning the sale. In October 2008, the short
sale was conducted.
According to Bryan, under Oregon law, when a residential property is foreclosed,
a second mortgage holder may not recover from the borrower for a delinquency
remaining after the foreclosure sale; conversely, after a short sale of residential property,
the second mortgage holder obtains a new debt which is collectable against the borrower.
Bryan contends that, therefore, a short sale was significantly more harmful to her than
foreclosure because the short sale resulted in creation of a new debt relative to the second
mortgage. Bryan complains that Gordon failed to advise Bryan a short sale was not in
her best interests and instead solicited and encouraged the short sale so that appellees
would obtain a commission.
Old Republic sued Bryan seeking to recover the balance of $29,628.96 due on the
note secured by the second mortgage. In her live pleading, Bryan counterclaimed against
Old Republic and asserted third-party claims against appellees, Titanium, and Citi
Mortgage. Bryan asserted claims against appellees for negligent misrepresentation,
3
fraud, fraudulent inducement, breach of fiduciary duties, civil conspiracy, and RICO
violations and sought consequential and punitive damages, plus attorney’s fees.
Appellees filed a special appearance to which Bryan responded. The evidence
submitted by the parties with these filings included the following: affidavits of Gordon,
another Windermere representative, and Bryan; Gordon’s deposition; and appellees’
discovery responses. The trial court conducted a hearing during which it heard
arguments but no additional evidence. On January 13, 2012, the trial court signed an
order, sustaining the special appearance and dismissing the claims against appellees for
want of jurisdiction. Bryan then filed this interlocutory appeal. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(7) (West Supp. 2012).
II. ANALYSIS
In her sole issue, Bryan contends the trial court erred by sustaining appellees’
special appearance.
A. Applicable Law and Standard of Review
The plaintiff has the initial burden of pleading sufficient allegations to bring the
nonresident defendant within the provisions of the Texas 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 the defendant must negate all
jurisdictional bases alleged. Id.
Texas courts may exercise jurisdiction over a nonresident if the Texas long-arm
statute authorizes the exercise of personal jurisdiction and the exercise of jurisdiction is
consistent with federal and state constitutional guarantees of due process. Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The Texas long-arm
statute authorizes Texas courts to exercise jurisdiction over a nonresident defendant who
“does business” in Texas and lists certain activities that constitute “doing business,”
including “commits a tort in whole in part” in Texas. Tex. Civ. Prac. & Rem. Code Ann.
4
§ 17.042 (West 2008). The Texas long-arm statute extends Texas courts’ personal
jurisdiction “‘as far as the federal constitutional requirements of due process will
permit.’” BMC Software, 83 S.W.3d at 795 (quoting U–Anchor Adver., Inc. v. Burt, 553
S.W.2d 760, 762 (Tex. 1977)). Thus, we rely on precedent from the United States
Supreme Court and other federal courts, as well as our own State’s decisions, in
determining whether a nonresident defendant has met its burden to negate all bases of
jurisdiction. Id.
Personal jurisdiction over a nonresident defendant is constitutional when two
conditions are satisfied: (1) the defendant has established minimum contacts with the
forum state; and (2) the exercise of jurisdiction comports with traditional notions of fair
play and substantial justice. BMC Software, 83 S.W.3d at 795 (citing Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). Minimum contacts
are sufficient for personal jurisdiction when the nonresident defendant purposefully avails
itself of the privilege of conducting activities within the forum state, thus invoking the
benefits and protections of its laws. Int’l Shoe, 326 U.S. at 319; Moki Mac, 221 S.W.3d
at 575; Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005).
There are three aspects pertinent to a “purposeful availment” inquiry: (1) only the
defendant’s contacts with the forum are relevant, not the unilateral activity of another
party or a third person; (2) the contacts relied on must be purposeful rather than “random,
fortuitous, or attenuated”; and (3) “‘the defendant must seek some benefit, advantage or
profit by “availing” itself of the jurisdiction’”; in contrast, a defendant may purposefully
avoid a particular forum by structuring its transactions in such a way as to neither profit
from the forum’s laws nor subject itself to jurisdiction there. Moki Mac, 221 S.W.3d at
575 (quoting Michiana, 168 S.W.3d at 785).
Personal jurisdiction exists if the nonresident defendant’s minimum contacts give
rise to either specific jurisdiction or general jurisdiction. Id. at 575; BMC Software, 83
S.W.3d at 795–96. If the defendant has made continuous and systematic contacts with
5
the forum, general jurisdiction is established whether or not the defendant’s alleged
liability arises from those contacts. Moki Mac, 221 S.W.3d at 575; BMC Software, 83
S.W.3d at 796. In contrast, when specific jurisdiction is alleged, we focus the minimum-
contacts analysis on the relationship among the defendant, the forum, and the litigation.
Moki Mac, 221 S.W.3d at 575–76. Specific jurisdiction is established if the defendant’s
alleged liability arises out of or is related to an activity conducted within the forum. Id. at
576; BMC Software, 83 S.W.3d at 796. For a nonresident defendant’s forum contacts to
support an exercise of specific jurisdiction, there must be a substantial connection
between those contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d
at 585.
Whether a trial court has personal jurisdiction over a defendant is a question of
law we review de novo. Id. at 574; BMC Software, 83 S.W.3d at 794. However, the trial
court frequently must resolve questions of fact before deciding the jurisdictional question.
BMC Software, 83 S.W.3d at 794. When, as in the present case, a trial court does not
issue findings of fact and conclusions of law with its ruling on a special appearance, all
facts necessary to support the judgment and supported by the evidence are implied. Id. at
795. However, these inferred findings are not conclusive and may be challenged for legal
and factual sufficiency when this court has a complete record on appeal. Id.; Max
Protetch, Inc. v. Herrin, 340 S.W.3d 878, 884 (Tex. App.—Houston [14th Dist.] 2011, no
pet.). We review findings relative to a special-appearance ruling under the same
standards applicable for reviewing a finding of fact at trial. See Huynh v. Nguyen, 180
S.W.3d 608, 615 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
When examining a legal-sufficiency challenge, we review the evidence in the light
most favorable to the challenged finding and indulge every reasonable inference that
would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit
favorable evidence if a reasonable fact finder could and disregard contrary evidence
unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if
6
it would enable a reasonable and fair-minded person to find the fact under review. Id.
The fact finder is the sole judge of witness credibility and the weight to give their
testimony. See id. at 819.
In a factual-sufficiency review, we consider and weigh all the evidence, both
supporting and contradicting the finding. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d
402, 406–07 (Tex. 1998). We set aside the finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We may not substitute our own judgment
for that of the trier of fact or pass upon the credibility of the witnesses. See Ellis, 971
S.W.2d at 407. The amount of evidence necessary to affirm a judgment is far less than
that necessary to reverse a judgment. GTE Mobilnet of S. Tex. L.P. v. Pascouet, 61
S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
B. Specific Jurisdiction
Bryan stipulates that the inquiry in the present case involves only specific
jurisdiction and she advances no general-jurisdiction argument. Bryan frames her issue
regarding specific jurisdiction as follows: “Whether exercising specific personal
jurisdiction over an Oregon real estate agent offends due process when: (a) The real
estate agent placed an unsolicited phone call to a Texas resident in hopes of obtaining a
commission; (b) The agent entered into a formal fiduciary relationship with the resident;
and; (c) In the course of operating as the resident’s fiduciary, the agent violated her
fiduciary duties by withholding material information for personal gain.”
We conclude that appellees lack the minimum contacts requisite for a Texas court
to exercise specific jurisdiction because the purposeful-availment requirement is not
satisfied. See Int’l Shoe, 326 U.S. at 319; Moki Mac, 221 S.W.3d at 575; Michiana, 168
S.W.3d at 784. Therefore, we need not address the traditional-notions-of-fair-play-and-
substantial-justice inquiry. See BMC Software, 83 S.W.3d at 795.
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With respect to Bryan’s contention that the contact by appellees was unsolicited,
she suggests any conflicting evidence must be resolved in the plaintiff’s favor. However,
Bryan recites an incorrect standard. Relative to jurisdictional facts, we apply the standard
recited above and imply the trial court made all findings in support of its ruling and
determine whether those findings are supported by the evidence. See BMC Software, 83
S.W.3d at 795; Max Protetch, 340 S.W.3d at 884.1
Bryan averred she did not request the Titanium employee to have a real estate
agent contact her regarding a sale of the property whereas Gordon testified she was
informed by Titanium that Bryan had made such a request. To the extent these accounts
are conflicting, the trial court was free to believe that Bryan did make such request;
therefore, although Gordon placed the first call, the initial contact was solicited by Bryan.
Alternatively, we note that the accounts presented by Gordon and Bryan are not
necessarily conflicting. We cannot foreclose the possibility that both parties were correct
in their recollections but the Titanium employee inaccurately relayed Bryan’s wishes to
Gordon. Nonetheless, even in this latter scenario, the trial court was free to believe
Gordon’s testimony indicating that, at least from her perspective, the initial contact was
solicited by Bryan because Gordon was informed Bryan requested the contact. See Moki
Mac, 221 S.W.3d at 575 (stating that, relative to the purposeful-availment analysis, only
defendant’s contacts with forum are relevant, not the unilateral activity of another party
or third person).
Bryan cites a portion of Gordon’s testimony to support Bryan’s argument that
Gordon solicited a Texas resident as a client:
Q. Okay. So based on the fact that she [Bryan] had never heard of you,
it’s fair to say that she had not - - she was not soliciting your personal
1
Bryan first expressly challenges sufficiency of the evidence to support the trial court’s implicit
findings in her reply brief, as opposed to her original brief, in which she maintains that conflicting
evidence must be resolved in favor of the plaintiff. Nevertheless, because we ultimately uphold the
findings, we will consider the sufficiency challenge.
8
services or Windermere’s personal services by filling out an information
form that was handed to her by a Titanium representative?
A. Not at that time, no.
Q. Right. And so when we talk about who solicited whom, you
received her information from Titanium as a referral based on your prior
relationship with Titanium and you placed the phone call. Correct?
A. Yes.
Q. You were soliciting her as a potential real estate client. Correct?
A. Yes.
Viewed in context of all Gordon’s testimony, the above-quoted excerpt does not
support Bryan’s assertion that the relationship was solicited by Gordon. Relative to the
first question quoted above, Gordon had already testified that she was informed Bryan
requested contact by an Oregon real estate agent. Therefore, Gordon’s answer to this
question meant that Bryan did not ask for Gordon or Windermere by name. With respect
to the remainder of the above-quoted testimony, considering Gordon was informed Bryan
requested contact from an Oregon real estate agent, Gordon meant she “solicited” Bryan
in the respect that Gordon responded to Bryan’s initial request for contact and pursued
the opportunity to do business with Bryan.2
We recognize that Gordon indeed pursued the opportunity to do business with
Bryan, whom Gordon knew was a Texas resident, by responding to the request for
contact, placing subsequent calls to facilitate signing of the listing agreement and sale of
the property, and entering into the listing agreement. Regardless, the evidence is
sufficient to support a finding that appellees did not initially target Bryan as a client.
Moreover, there is no evidence that appellees generally solicited business in Texas.
2
We do not necessarily hold that specific jurisdiction would be established if Gordon solicited
the initial contact. We need not address that issue because the evidence supports a finding that Gordon
did not solicit the initial contact.
9
Indeed, appellees are licensed to practice real estate in Oregon, have never been licensed
or practiced real estate in Texas, and have no employees, servants, or agents in Texas.
Gordon has never advertised in Texas and at the time of her deposition, had never
represented any Texas resident in an Oregon real estate transaction. Consequently, the
significant point for the purposeful-availment analysis is that appellees’ relationship with
Bryan did not arise out of any targeted efforts on their part to obtain clients in Texas. Cf.
Moki Mac, 221 S.W.3d at 576 (stating that non-resident who directs marketing efforts to
Texas in the hope of soliciting sales is subject to suit here for alleged liability arising
from or relating to that business). Instead, it was fortuitous that Bryan resided in Texas
when appellees responded to her initial request for contact from an Oregon real estate
agent to sell her Oregon property and pursued the opportunity to do business with her.
Accordingly, we turn to Bryan’s reliance on the fact that (1) appellees formed a
fiduciary relationship with a Texas resident, from which appellees sought to obtain a
commission, and (2) appellees allegedly breached their fiduciary duties to the Texas
resident during multiple telephone calls while the resident was located in Texas.3
The fact that appellees conducted business with Bryan, as a Texas resident, is
insufficient alone to confer specific jurisdiction. See Peredo v. M. Holland Co., 310
S.W.3d 468, 474–75 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (stating that
nonresident does not establish minimum contacts with Texas simply by contracting with
a Texas resident and engaging in numerous communications, by telephone or otherwise,
with persons in Texas concerning the contract); Weldon-Francke v. Fisher, 237 S.W.3d
789, 796 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (stating that New Hampshire
3
On appeal, Bryan focuses on her breach-of-fiduciary-duty claims, although she alleged other
tort claims in her live pleading. Nonetheless, all claims are based on the same alleged
misrepresentations—through either affirmative representations or failures to disclose. Therefore, our
jurisdictional analysis applies to all Bryan’s claims. Moreover, solely for purposes of the jurisdictional
analysis, we will assume, without deciding, the relationship between appellees and Bryan was a fiduciary
relationship.
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lawyer’s contracting with and accepting payment from Texas resident for services
performed in New Hampshire was insufficient to support specific jurisdiction).
With respect to Bryan’s allegations that appellees breached their fiduciary duties
during telephone conversations with Bryan while she was located in Texas, Michiana is
persuasive. In Michiana, the defendant manufacturer of recreational vehicles was located
in Indiana, had no employees or property in Texas, was not authorized to do business in
Texas, did not advertise in Texas or on the internet, and thus did not solicit business from
the plaintiff resident of Texas or anyone else in Texas. 168 S.W.3d at 784. Rather, via a
telephone call to the defendant, the plaintiff initiated purchase of a recreational vehicle.
Id. The vehicle was constructed outside Texas, paid for outside Texas, and shipped to
Texas at the plaintiff’s request and expense. Id. The Supreme Court of Texas held that
Texas courts lacked specific jurisdiction over the plaintiff’s tort claims based on
misrepresentations about the transaction, allegedly made by the defendant during the
phone call. See id. at 784–94.
The Michiana court held that “direct[ing] a tort” at Texas is insufficient alone to
establish jurisdiction because such a concept would improperly shift a court’s focus to the
relationship among the “plaintiff, the forum . . . and the litigation” rather than “the
defendant, the forum and the litigation.” Id. at 790–91. Similarly, the Michiana court
rejected the notion that specific jurisdiction was appropriate because the alleged tort was
committed during a telephone conversation between the plaintiff in Texas and the
defendant. See id. at 791–92. The court reasoned, “changes in technology have made
reliance on phone calls obsolete as proof of purposeful availment. . . . If jurisdiction can
be based on phone conversations ‘directed at’ a forum, how does a defendant avail itself
of any jurisdiction when it can never know where the other party has forwarded calls or
traveled with a mobile phone?” Id. at 791. The court further recognized the purposeful-
availment analysis must focus on the extent of the defendant’s activities and not the fact
that the plaintiff “happens to live” in the forum state during a singular phone
11
conversation. See id. at 789–90; see also Peredo, 310 S.W.3d at 475 (citing Michiana
when stating that jurisdictional inquiry does not focus on the state in which plaintiff relies
on alleged misrepresentation at issue).
We acknowledge that there was a singular phone call in Michiana whereas Gordon
and Bryan engaged in multiple phone conversations. However, a real estate agent’s
representation of a client in a sale of property might naturally encompass more phone
communications than involved in sale of a product because axiomatically the real estate
agent must relay to the client various purchase offers and other information necessary to
close the sale. Nevertheless, like the relationship in Michiana, the relationship in the
present case concerned a one-time transaction in another state, which did not result from
any attempts by appellees to solicit business in Texas, irrespective of the number of
phone conversations necessary to conduct the transaction. See Peredo, 310 S.W.3d at
472 (recognizing it is “not the number, but rather the quality and nature” of the
nonresident’s contacts with the forum state that are important to the purposeful-availment
analysis).
Additionally, the Michiana court rejected any significance to the fact that its
defendant anticipated profit from the sale to the Texas resident, stating “financial benefits
accruing to the defendant from a collateral relation to the forum State will not support
jurisdiction if they do not stem from a constitutionally cognizable contact with that
State.” 168 S.W.3d at 788. Therefore, the fact that appellees sought to obtain a
commission from their relationship with Bryan is not controlling in the purposeful-
availment analysis.
Although Bryan does not emphasize this fact, she also mentions that appellees e-
mailed the listing agreement to Bryan in Texas, she signed it while located in Texas, the
parties engaged in further e-mail communications during their relationship, and appellees
also allegedly breached their fiduciary duties in the e-mail communications. However,
neither Gordon nor any other employee of Windermere traveled to Texas for execution of
12
the contract. Additionally, because the fact a non-resident contracted with a Texas
resident is insufficient to support specific jurisdiction, Peredo, 310 S.W.3d at 474–75, it
follows that the resident’s receipt and execution of the contract in Texas is insufficient to
support specific jurisdiction. Obviously, when the contractual relationship is governed
by a written instrument, the resident must sign the contract somewhere and it is not
unusual that the resident might do so in her own state. Thus, we conclude disposition of
the jurisdictional question should not turn on the mere distinction between whether the
plaintiff signed the contract in Texas or traveled to the defendant’s state or elsewhere to
sign the contract. Further, similar to the phone-conversation reasoning, see Michiana,
168 S.W.3d at 791–92, because of modern technologies and mobility of computer
devices, we believe the purposeful-availment analysis should not turn on the fortuity of
where the Texas resident was physically located when the defendant e-mailed the
contract or when the defendants made allegedly actionable misrepresentations by e-mail.
See Riverside Exports, Inc. v. B.R. Crane & Equip., LLC, 362 S.W.3d 649, 655–56 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (citing Michiana phone-conversation
reasoning when rejecting contention that nonresident satisfied purposeful-availment
requirement because it sent e-mails to Texas “for the purpose of consummating” sale of
product to Texas resident and later to misrepresent the reason it refused to complete the
sale; and stating that, when Texas resident initiates purchase of equipment outside Texas
by contacting non-resident that does not direct marketing to Texas, “it matters little”
whether nonresident answers the inquiry by telephone or by email).
Bryan emphasizes that the relationship between appellees and Bryan was a
fiduciary relationship and it was a breach of attendant fiduciary duties which allegedly
occurred during their conversations. Moreover, Bryan emphasizes the alleged degree of
wrongdoing on the part of appellees. For example, Bryan asserts that appellees
“hoodwinked” Bryan who lacked knowledge of Oregon law and she “has a right to exact
Texas justice upon these Defendants that so blatantly violated their fiduciary duties to
13
collect a few thousand dollars from a short sale commission.” However, these arguments
do not alter our analysis.
The Michiana court did not distinguish between types or degrees of torts when
stating that “direct[ing] a tort” at Texas and committing a tort via a telephone call with a
Texas resident are insufficient to support specific jurisdiction. See 168 S.W.3d at 788–
92. Moreover, Bryan’s contentions concern the merits of her cause of action rather than
the minimum contacts requisite to personal jurisdiction. The Michiana court rejected the
proposition that “specific jurisdiction turns on whether a defendant’s contacts were
tortious rather than the contacts themselves.” Id. at 792. “If committing a tort establishes
jurisdiction, our colleagues will have to decide which [party] is correct––and then the
Texas jurisdictional rule will be: guilty nonresidents can be sued here, innocent ones
cannot.” Id. at 791. Therefore, we focus on appellees’ contacts with Texas—not the
alleged degree of wrongdoing on their part toward a Texas resident. See id. at 791–92.
Bryan cites Herbert v. Greater Gulf Coast Enterprises, Inc., 915 S.W.2d 866 (Tex.
App.—Houston [1st Dist.] 1995, no writ) to support her proposition that an allegation of
wrongdoing by a fiduciary against a Texas resident is sufficient to support specific
jurisdiction. However, the Herbert court did not make such a broad holding. See id. at
870–71. In that case, the court held that specific jurisdiction was established over a
subcontractor’s claim against a non-resident general contractor for misappropriation of
trust funds based on his failure to pay for labor and materials provided by the
subcontractor. Id. at 870–71. Herbert is distinguishable from the present case because
its plaintiff alleged that the non-resident general contractor violated the Texas trust fund
statute by misdirecting funds it received under a construction contract for a project
located in Texas. See id.
Rather, we find Bergenholtz v. Cannata, 200 S.W.3d 287, 295–97 (Tex. App.—
Dallas 2006, no pet.) is more analogous to the present case because the court analyzed the
non-residents’ contacts with Texas instead of considering mere existence of their
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fiduciary relationship with a Texas resident or allegations regarding breach of fiduciary
duties during communications with the Texas resident. In particular, the court held that
Texas courts lacked specific jurisdiction over the plaintiff’s breach-of-fiduciary-duty, and
other tort, claims against his California lawyers, despite the fact that the plaintiff was
located in Texas when he received the lawyers’ communications and advice, signed a fee
agreement, and paid the lawyers’ bills. See id. at 291–92, 295–97. The court concluded
the lawyers did not purposefully avail themselves of the privilege of doing business in
Texas because they represented the plaintiff in a California suit, the lawyers were not
licensed to practice law in Texas and maintained no offices or employees in Texas, the
representation did not result from the lawyers’ soliciting business in Texas,
communications with the plaintiff which allegedly constituted actionable
misrepresentations concerned the California suit, the lawyers provided the advice at issue
from California, and the lawyers did not travel to Texas in connection with the
representation. See id.
Similarly, we cannot separate the totality of undisputed facts relied on by Bryan—
she was a Texas resident during the parties’ fiduciary relationship, she received and
signed the contract in Texas, appellees obtained a commission from Bryan, and she was
located in Texas during the parties’ referenced phone conversations—from the following
factors: (1) the property that was the subject of the contract and the parties’ relationship is
located in Oregon; (2) the contract was an Oregon listing agreement; (3) the short sale
about which appellees allegedly made misrepresentations occurred in Oregon; (4)
appellees’ commission was obtained solely for this Oregon sale; (5) the commission was
paid out of an Oregon bank account; (6) no representative of appellees traveled to Texas
in connection with the transaction or their relationship with Bryan; (7) the multiple phone
conversations, as well as e-mails, between appellees and Bryan concerned this Oregon
transaction; (8) the note securing the second mortgage on which Bryan remains liable,
purportedly as a result of appellees’ conduct, was signed in Oregon; (9) in her live
pleading, Bryan acknowledges, “[t]he laws of the state of Oregon apply to the subject
15
matter of this dispute” and claims appellees made misrepresentations regarding Bryan’s
“rights as a property holder in the state of Oregon”; (10) indeed, it is the laws of Oregon
on which Bryan relies when complaining that the short sale was not in her best interest
and appellees failed to advise her regarding adverse consequences of the sale; and (11) as
discussed above, appellees did not initially solicit Bryan’s business but instead, from their
perspective, responded to her request for contact by an Oregon real estate agent to handle
a sale of Oregon property.
Accordingly, the relationship between appellees and Bryan and the parties’
communications concomitant to that relationship concerned a one-time Oregon real estate
transaction that had no connection to Texas other than the fact that Bryan happened to
reside in Texas during the relationship, was located in Texas when she received and
signed the contract, and was located in Texas during the parties’ communications. All of
the above factors support a conclusion that appellees’ contacts with Texas were too
“random, fortuitous, or attenuated” to satisfy the purposeful-availment requirement and
they did not seek to enjoy any benefits or protections of Texas law. See Moki Mac, 221
S.W.3d at 575; Michiana, 168 S.W.3d at 785, 787.
In summary, we conclude the trial court did not err by sustaining appellees’
special appearance. Accordingly, we overrule Bryan’s sole issue and affirm the trial
court’s judgment.
/s/ Charles W. Seymore
Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
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