Vincent Peters v. the Top Gun Executive Group , 396 S.W.3d 57 ( 2013 )

Reversed and Rendered and Opinion filed January 15, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00083-CV
VINCENT PETERS, Appellant
V.
THE TOP GUN EXECUTIVE GROUP, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2011-48001
OPINION
Vincent Peters filed a New Jersey judgment in the trial court for
domestication in Texas under the Uniform Enforcement of Foreign Judgments Act
(UEFJA), TEX. CIV. PRAC. & REM. CODE ANN. §§ 35.001–008 (West 2008 & Supp.
2012). Peters appeals from the trial court‘s order vacating the judgment against
appellee The Top Gun Executive Group. Peters contends that the trial court
abused its discretion by finding that the New Jersey court lacked subject matter
jurisdiction and personal jurisdiction over Top Gun. We reverse and render that
the judgment Peters filed, number VJ-005161-10, entered in the Superior Court of
New Jersey Law Division, Morris County Special Civil Part, on July 6, 2010, in
docket number DC-014124-09, is presently enforceable as a Texas judgment.
BACKGROUND
Peters is a resident of New Jersey, and Top Gun is incorporated in Texas
with its principal place of business in Texas. Peters and Top Gun signed a contract
for Top Gun to locate employment opportunities for Peters, among other things.
Peters paid Top Gun $4,500 for the service.
Peters eventually sued Top Gun in New Jersey for breach of contract, unjust
enrichment, negligent misrepresentation, common law fraud, consumer fraud in
violation of a New Jersey statute, and attorney‘s fees. Peters obtained a default
judgment for $18,680.62 and filed the judgment in Texas pursuant to UEFJA. Top
Gun filed a ―motion to contest filing of sister state judgment and motion to vacate,‖
which the trial court initially denied. But after an evidentiary hearing on Top
Gun‘s motion to reconsider, the trial court signed an order vacating the New Jersey
judgment. The order stated that the New Jersey court ―lacked both subject matter
and personal jurisdiction.‖ Peters filed a timely notice of appeal.
ANALYSIS
In two issues, Peters contends the trial court abused its discretion by
vacating the New Jersey judgment because Top Gun failed to prove by clear and
convincing evidence that (1) Top Gun lacked minimum contacts with New Jersey
for purposes of specific personal jurisdiction; and (2) New Jersey‘s exercise of
2
specific personal jurisdiction offended due process.1 We agree.
I. Standard of Review for UEFJA
Full faith and credit must be given in each state to the judicial proceedings in
another state. H. Heller & Co. v. La.-Pac. Corp., 209 S.W.3d 844, 849 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). Thus, Texas must enforce a valid
judgment from another state. Id. When a judgment creditor, such as Peters, files
an authenticated copy of a foreign judgment pursuant to UEFJA, a prima facie case
for its enforcement is presented. Id. The burden then shifts to the judgment
debtor, such as Top Gun, to prove by clear and convincing evidence that the
foreign judgment should not be given full faith and credit. Id. A judgment debtor
can meet this burden by proving that the rendering court lacked personal
jurisdiction or one of several other exceptions to full faith and credit. Id.
We review a trial court‘s order vacating a foreign judgment for an abuse of
discretion. Mindis Metals, Inc. v. Oilfield Motor & Control, 132 S.W.3d 477, 486
(Tex. App.—Houston [14th Dist.] 2004, pet. denied). Whether a judgment debtor
can prove that the foreign court lacked jurisdiction generally involves a factual
inquiry. See id. (citing Reading & Bates Const. Co. v. Baker Energy Res. Corp.,
976 S.W.2d 702, 713 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)). When
addressing personal jurisdiction in the context of a special appearance, we have
1
Under his first issue, Peters also argues that the trial court abused its discretion by
finding that Top Gun proved by clear and convincing evidence that the New Jersey court lacked
subject matter jurisdiction. Top Gun does not respond to this argument on appeal, and the record
does not reveal that Top Gun asked the trial court to vacate the judgment due to a lack of subject
matter jurisdiction in the New Jersey court. Further, we conclude the record contains no
evidence that the New Jersey court lacked subject matter jurisdiction, and the trial court abused
its discretion in so finding.
Peters also appears to urge an issue not identified in his statement of issues: we should
reinstate the New Jersey judgment because ―equity calls for it.‖ Because we sustain Peters‘s first
two issues, we do not reach the ―equity‖ issue. See TEX. R. APP. P. 47.1.
3
recognized that trial courts frequently must resolve fact questions. Citrin
Holdings, LLC v. Minnis, 305 S.W.3d 269, 277 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794
(Tex. 2002)). And if the trial court does not sign findings of fact and conclusions
of law, all facts supported by the evidence and necessary to the trial court‘s ruling
are implied in favor of the trial court‘s ruling. Id. Implied findings may be
challenged on sufficiency grounds. Id. When the standard of proof is clear and
convincing evidence, as here, we must review the evidence in the light most
favorable to the trial court‘s finding to determine ―whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.‖ In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (parental termination). We will disregard
all evidence that a reasonable fact finder could have disbelieved or found to have
been incredible, but generally we do not disregard undisputed facts. Id.
Further, a trial court has no discretion in applying the law to established
facts. Mindis Metals, 132 S.W.3d at 486. ―Personal jurisdiction is a question of
law for the court, even if it requires resolving questions of fact.‖ Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790–91 (Tex. 2005); see also
Boyes v. Morris Polich & Purdy, LLP, 169 S.W.3d 448, 456 (Tex. App.—El Paso
2005, no pet.) (holding that a Nevada trial court had personal jurisdiction over the
judgment debtor as a matter of law).
II. Controlling Authority for Personal Jurisdiction Exception under
UEFJA
Initially, we note that Peters and Top Gun disagree over which state‘s
precedent should guide our resolution of the personal jurisdiction inquiry. Peters
argues that we should look to New Jersey case law while Top Gun argues that
Texas and federal decisions control the inquiry.
4
To determine the validity of a foreign state‘s judgment, we look to the laws
of the state that rendered the judgment. H. Heller & Co., 209 S.W.3d at 849.
However, when a state‘s long-arm statute extends to the limits of due process
under the United States Constitution—as in Texas2 and New Jersey3—we are not
limited to considering precedent from the forum state. See id. at 849, 851 n.1
(considering federal, Texas, and Alabama precedent in appeal concerning an
Alabama judgment when the Alabama long-arm statute extended to the limits of
due process under the United States Constitution); see also BMC Software, 83
S.W.3d at 795 (relying on ―precedent from the United States Supreme Court and
other federal courts, as well as our own State‘s decisions,‖ to resolve special
appearance).
Accordingly, we rely on federal, Texas, and New Jersey precedent. See H.
Heller & Co., 209 S.W.3d at 851 n.1. ―The general principles are the same, and
we find that there would be no difference in outcome depending on which state‘s
precedent is controlling.‖ Id.
III. Personal Jurisdiction
Peters and Top Gun agree that the central issue is whether the New Jersey
court had specific personal jurisdiction over Top Gun. We begin by reviewing the
principles of personal jurisdiction. Then we present the jurisdictional evidence in
light of the standard of review. Finally, we conclude that the trial court erred
because Top Gun failed to prove by clear and convincing evidence that the New
Jersey court lacked personal jurisdiction.
2
See BMC Software, 83 S.W.3d at 795.
3
See Charles Gendler & Co. v. Telecom Equip. Corp., 508 A.2d 1127, 1131 (N.J. 1986).
5
A. Principles of Personal Jurisdiction
―Under constitutional due-process analysis, personal jurisdiction is achieved
when (1) the nonresident defendant has established minimum contacts with the
forum state, and (2) the assertion of jurisdiction complies with traditional notions
of fair play and substantial justice.‖ Retamco Operating, Inc. v. Republic Drilling
Co., 278 S.W.3d 333, 338 (Tex. 2009) (quotation omitted); accord Lebel v.
Everglades Marina, Inc., 558 A.2d 1252, 1254 (N.J. 1989).
1. Minimum Contacts
―A defendant establishes minimum contacts with a state when it
‗purposefully avails itself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws.‘‖ Retamco, 278
S.W.3d at 338 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The
defendant‘s conduct and connections with the forum state—whether consisting of
direct acts within the forum or conduct outside the forum—must justify a
conclusion that the defendant ―should reasonably anticipate being haled into court
there.‖ World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980);
Retamco, 278 S.W.3d at 338.
―General‖ jurisdiction arises when a defendant‘s contacts with the forum
state are ―continuous and systematic.‖ Retamco, 278 S.W.3d at 338. ―Specific‖
jurisdiction arises when the defendant‘s contacts with the forum show that ―(1) the
defendant purposefully avails itself of conducting activities in the forum state, and
(2) the cause of action arises from or is related to those contacts or activities.‖ Id.
―In a specific jurisdiction analysis, we focus on the relationship among the
defendant, the forum, and the litigation.‖ Id. (alterations and quotation omitted).
6
To determine whether a defendant‘s contacts with a forum show purposeful
availment, we consider three principles: (1) only the defendant‘s contacts with the
forum are relevant, not the unilateral activity of another party; (2) the contacts
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
forum. Id. at 338–39 (citing Moki Mac River Expeditions v. Drugg, 221 S.W.3d
569, 575 (Tex. 2007)).
When the litigation concerns a contract between the parties, the mere fact
that the parties signed a contract does not automatically establish sufficient
minimum contacts in the other party‘s home forum. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 478 (1985); Michiana, 168 S.W.3d at 786. ―[A]
‗contract‘ is ‗ordinarily but an intermediate step serving to tie up prior business
negotiations with future consequences which themselves are the real object of the
business transaction.‘‖ Burger King, 471 U.S. at 479 (quoting Hoopeston Canning
Co. v. Cullen, 318 U.S. 313, 316–17 (1943)). In contract disputes, we must
consider the parties‘ prior negotiations, the contemplated future consequences, the
terms of the contract, and the actual course of dealing of the parties. See id.
Jurisdiction ―may not be avoided merely because the defendant did not
physically enter the forum state.‖ Id. at 476 (emphasis omitted). Parties who
―‗reach out beyond one state and create continuing relationships and obligations
with citizens of another state‘ are subject to the jurisdiction of the latter in suits
based on their activities.‖ Michiana, 168 S.W.3d at 785 (quoting Burger King, 471
U.S. at 473).
―[I]t is not the number, but rather the quality and nature of the nonresident
defendant‘s contacts with the forum state that is important.‖ Guardian Royal
Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 230 n.11
7
(Tex. 1991); accord Peredo v. M. Holland Co., 310 S.W.3d 468, 472 (Tex. App.—
Houston [14th Dist.] 2010, no pet.). ―So long as it creates a ‗substantial
connection‘ with the forum, even a single act can support jurisdiction.‖ Burger
King, 471 U.S. at 475 n.18 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223
(1957)); see also Michiana, 168 S.W.3d at 787 (―[A] single contract may meet the
purposeful-availment standard . . . . (emphasis omitted)).
2. Traditional Notions of Fair Play and Substantial Justice
When the minimum contacts test is satisfied, ―it is incumbent upon the
defendant to present ‗a compelling case that the presence of some consideration
would render jurisdiction unreasonable.‘‖ Guardian Royal, 815 S.W.2d at 231
(quoting Burger King, 471 U.S. at 477). ―‗Only in rare cases . . . will the exercise
of jurisdiction not comport with fair play and substantial justice when the
nonresident defendant has purposefully established minimum contacts with the
forum state.‘‖ Retamco, 278 S.W.3d at 341 (quoting Guardian Royal, 815 S.W.2d
at 231). ―Nonetheless, we still consider: (1) the burden on the defendant; (2) the
interests of the forum state in adjudicating the dispute; (3) the plaintiff‘s interest in
obtaining convenient and effective relief; (4) the interstate judicial system‘s
interest in obtaining the most efficient resolution of controversies; and (5) the
shared interest of the several States in furthering fundamental substantive social
policies.‖ Id.
B. Jurisdictional Evidence
The trial court held an evidentiary hearing at which the court heard live
testimony from a single witness: Top Gun‘s owner Craig Chrest. The court also
admitted the following exhibits: (1) an affidavit from Chrest; (2) an affidavit from
Peters; (3) an email from Top Gun to Peters sent on September 5, 2008; (4) the
―services agreement‖ between the parties dated September 9, 2008; (5) an email
8
from Top Gun to Peters sent on April 1, 2009; and (6) Peters‘s resume.
We will review the undisputed and conflicting evidence separately to give
appropriate deference to the trial court‘s implied findings.
1. Undisputed Evidence
Chrest testified that Top Gun was an executive recruiting firm with offices
in Houston, Texas. Top Gun had no branch offices, no office in New Jersey, and
no property in New Jersey. Top Gun never had ―any type of advertisement
specific to the State of New Jersey,‖ and Top Gun performed all of its work from
its Houston office. Top Gun had a website that allowed prospective clients to
contact the company though email.
Peters testified by affidavit that in 2008 he was searching for a job, and he
posted his resume on several job websites. On September 5, 2008, Top Gun sent
an email to Peters at the email address appearing on Peters‘s resume. The email
addressed Peters as ―Vincent,‖ and began as follows: ―After reading the following,
you make the decision as to whether or not we talk later. Based on a brief
description I read about your background on your resume, there‘s a possibility we
may be able to help you with your job search.‖ The email described Top Gun‘s
history and experience and listed the services it would provide, such as ―uncover
real positions that match your skills, identify the actual decision maker for the
position, not HR, and provide extensive research on the company that is utilized to
differentiate you from the many thousands of candidates competing for the same
position.‖ The email explained that Top Gun ―work[s] one on one with our clients
advising and mentoring at every step of the way while contacting real decision
makers who are actually hiring.‖
9
The email repeated several times that its success rate with clients was 100%,
and Top Gun ―never failed to identify and reach the proper hiring authority—
never!‖ The email described Top Gun‘s fee as two parts: (1) a small retainer to
fund the job search; and (2) a flat fee due ―only when you secure employment as a
result of our efforts.‖ The body of the email concluded with the following: ―You
can take comfort in knowing that we never enter an engagement unless we know
we can help. Call me anytime (281-517-0303) or send me an e-mail including the
best time and number to call you.‖ The signature block indicated the email was
from ―Erin Valdez, Administrative Marketing‖ at Top Gun. After the signature
block, the email advised, ―If you prefer not to receive information about this
service, please reply Unsubscribe in the subject line.‖4
Chrest testified that the September 5, 2008 email was ―a follow-up e-mail
we send to people that forward their resume‖ to Top Gun. Chrest testified by
affidavit that the email was ―a form email response sent to anyone making an
inquiry for information‖ from Top Gun. In 2008, Top Gun received approximately
500 to 1,000 resumes per day.
Peters testified by affidavit that after he had read the email and reviewed
Top Gun‘s website, he called Top Gun at the phone number provided in the email.
Chrest testified that he sent a services agreement to Peters in New Jersey and that
Peters returned the signed contract from New Jersey. Chrest also acknowledged
that Peters‘s resume included a New Jersey address and phone number with a New
Jersey area code.5
The services agreement admitted into evidence states that Top Gun would do
4
After Peters sued Top Gun, Peters received an identical email from Top Gun on April 1,
2009.
5
Further, all of the prior jobs listed on Peters‘s resume—dating back to 1979—were
located in New Jersey or New York City.
10
the following for Peters:
1. Identify the hiring manager/s responsible for the position or
positions in pursuit.
2. Present the hiring manager with the Qualification Match
completed by Client.
3. Notify Client when a match occurs and schedule the interview
with the hiring manager only after gaining concurrence from
Client.
4. Work closely with Client throughout the entire process
providing assistance for making a successful placement
possible.
5. Provide weekly updates summarizing all recruiting and
placement activities on Client‘s behalf.
6. Continue to provide all services above until Client is
successfully placed; or, until such time this Agreement is
deemed null and void.
7. We will perform clients [sic] job search including the open job
board and retained recruiting network.
8. Make phone calls and emails to hiring managers and recruiters.
9. Prepare Client for all interviews including personal network
and our network.
10. Provide Client with executive coaching.
Peters agreed to pay a non-refundable retainer of $4,500 and an additional fee of
$5,000 upon acceptance of employment with a company referred by Top Gun.
Payment of the $5,000 fee could be deferred for three years and forgiven in $1,000
increments for each referral Peters made to Top Gun that resulted in a new client or
job opening for Top Gun.
The services agreement also stated that the agreement could be canceled if
either party failed to perform as agreed. In particular, the agreement included the
following term: ―If [Top Gun] fails to present at least 4 positions deemed suitable
11
by Client within the first 6 months of this agreement, Client may terminate this
agreement and no further fees will accrue.‖ The agreement also included a
―guarantee‖ from Top Gun: ―We will work with you every step of the way and
make ourselves available via telephone and email with a guaranteed response time
of no more than 24 hours.‖ Peters paid the $4,500 retainer by completing a credit
card form provided by Top Gun. The billing address for the payment was in New
Jersey.
Finally, Chrest testified that Top Gun identified twenty-eight employment
opportunities for Peters located in various states throughout the country. One of
the opportunities was for a job in New Jersey. Chrest acknowledged that ―one of
the states that [Peters] wanted a job was in New Jersey.‖
2. Conflicting Evidence
The parties dispute two factual matters: (1) whether the subject matter of the
contract was limited to finding employment opportunities in New Jersey and New
York; and (2) who initiated contact.
Regarding the subject matter of the contract, Peters testified that he informed
Top Gun during a telephone conversation that he was ―searching for a job in my
state or in New York.‖ He testified that Top Gun told him that he would be
―provided job placement opportunities within those two states.‖ Peters alleged that
Top Gun promised that it would find him ―job opportunities in New Jersey or New
York.‖ On the other hand, Chrest testified that there was never ―any kind of
requirement on Mr. Peters‘ [sic] part that [Top Gun] try to find him a job in New
Jersey.‖ Chrest stated in his affidavit that Peters asked Top Gun to locate
―employment opportunities throughout the United States,‖ and Peters ―did not seek
to limit his search for jobs to those that might be in a particular location but rather
considered opportunities presented by [Top Gun] from California to Florida.‖ The
12
services agreement itself did not limit the job search to any particular states.
We defer to the trial court‘s implied resolution of this evidentiary conflict in
Top Gun‘s favor. We disregard Peters‘s affidavit testimony on this subject
because a reasonable fact finder could have believed Chrest and disbelieved Peters.
The trial court could have formed a firm belief or conviction that Top Gun was not
limited to searching for employment opportunities in New Jersey and New York.
Regarding which party initiated contact, we first reject Peters‘s contention
that the trial court found that ―Top Gun initiated the contact‖ by including a
handwritten note on its order stating that ―Defendant contacted Plaintiff in New
Jersey.‖6 The trial court made no express finding about who initiated contact.
Further, we conclude that the evidence supports Top Gun‘s assertion that it
possessed Peters‘s resume before sending the September 5 email. However,
Chrest‘s testimony was self-contradictory on how Top Gun obtained Peters‘s
resume, which bears on the ―who initiated contact‖ issue.
First Chrest testified by affidavit that Peters ―solicited the services‖ of Top
Gun by forwarding his resume to the company, and Top Gun ―responded to the
solicitation of Mr. Peters by email dated September 5, 2008.‖ Chrest testified that
Top Gun did not make the first contact with Peters, and ―the only way it could
have happened is if [Peters] would have sent his resume to us via the fax or e-
mail.‖ However, Top Gun did not offer into evidence a copy of any such email or
fax, and Chrest testified that he did not think Top Gun had a copy of any such
email from Peters. Later, Chrest acknowledged that Top Gun could have received
Peters‘s resume through ―resume blasters things . . . Probably there or from a
referral from somebody or—there is a variety of ways that people reach out to us.‖
6
The full note stated, ―Although Defendant contacted Plaintiff in New Jersey, in doing so
Defendant did not seek a benefit, advantage, or profit by availing itself of the forum.‖
13
Chrest also testified that Top Gun could have obtained Peters‘s resume if Peters
had uploaded his resume to a website such as Monster.com7 and Top Gun ―had a
job posting up there.‖
Eventually the trial court questioned Chrest directly, and Chrest was only
able to ―guess‖ how Top Gun obtained Peters‘s resume. The following exchange
occurred:
THE COURT: Does your company mainly represent employers or
employees?
THE WITNESS: Employers.
THE COURT: All right. So when they would come and ask you to
fill a position, do you go about that by putting a posting on places like
Monster and other spots like that?
THE WITNESS: We don‘t. We hire—we—that is a way to do it.
But our—the technique that we use is a little bit different. We source
them, so we would hire a sourcer. If we got a job, let‘s say, for an
attorney, a corporate attorney in food and beverage, we would hire a
sourcer and they would get us names of that individual and companies
that were similar and then we‘d start recruiting calls to them.
THE COURT: All right. So there‘s a middleman between you and
the prospect?
THE WITNESS: Correct.
THE COURT: That middleman may have posted on Monster or other
places?
THE WITNESS: Oh, yeah.
THE COURT: I‘m trying to figure out how this guy would have
found you. So if that‘s what your sourcer did, then it‘s possible that
he responded to Ad Number 1 and it was brought to you and you sent
him the first e-mail?
THE WITNESS: Could be.
7
Monster.com is a website for job seekers and employers to connect through
advertisements posted by employers or resumes uploaded by job seekers to a database that is
searchable by employers (among other services).
14
THE COURT: He may have responded to Ad Number 2 completely
separately, not knowing that the resume was going to come to you
eventually. That‘s why it would have come to you in Number 2?
THE WITNESS: Could be.
* * *
THE COURT: Is there anything you know from your own personal
knowledge—don‘t speculate—as to how it was that he found you
guys?
THE WITNESS: I could take a number of guesses is that—
THE COURT: I don‘t want you to guess. I want to know if there is
anything from what you and he talked about in your conversation or
that your partner said that she talked about with her conversation with
him.
THE WITNESS: I would—I think—my guess is that it was through
the resume blasters. And these are people that say, ―Hey, you want to
get people that can help you, we‘ll send—for a hundred bucks or
something like that, we‘ll blast your resume to all the executive
recruiters in the United States.‖ And that‘s one way that we get them.
Another way is we‘re part of a network called Top Echelon network
where there are 2,400 other recruiters and there‘s a lot of processing
and referrals that go on through there and that‘s a very strong
possibility, without me knowing exactly how somebody out there
would—
The inconsistency in Top Gun‘s position continues in its briefing on appeal. In its
initial brief, Top Gun states, ―The uncontroverted testimony at the hearing from
Top Gun‘s owner, Craig Chrest, was that Top Gun sent an email inquiry to Peters
only after receiving his resume from a third party,‖ and, ―Further, the
uncontroverted evidence from Craig Chrest is that Top Gun [sent the September 5
email] in response to Peters posting his resume online.‖ In its surreply brief,
however, Top Gun points to Chrest‘s earlier testimony and argues there was
evidence that ―Peters contacted Top Gun first.‖
15
In determining whether the evidence supports a finding that ―Peters
contacted Top Gun first,‖ we cannot disregard the uncontroverted evidence
consisting of (1) Peters‘s testimony that he posted his resume on several job
websites; (2) Chrest‘s testimony that Top Gun could have obtained Peters‘s resume
through a third-party ―resume blaster‖ service, the Top Echelon network, or in
response to a ―sourcer‖ placing an advertisement on an job website; (3) Chrest‘s
testimony that Top Gun had no documentary evidence to substantiate a claim that
Peters initiated contact by sending his resume directly to Top Gun; and (4) the
September 5 email stating that Top Gun reviewed Peters‘s resume and invited
Peters to call Top Gun or send his phone number and availability.
A finding can never be supported by mere conjecture, guess, or speculation.
See, e.g., Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); cf. Mata v.
State, 46 S.W.3d 902, 917 (Tex. Crim. App. 2001) (trial court abused its discretion
by finding expert reliable when expert‘s testimony was inconsistent on key issues,
and standard of proof was clear and convincing evidence). Considering the
inconsistencies in Chrest‘s testimony and the remaining undisputed evidence, we
conclude that no rational fact finder could have reached a firm belief or conviction
that Peters initiated contact with Top Gun by sending his resume directly to Top
Gun through email or fax before receiving the September 5 email from Top Gun.
The evidence, however, would support the finding that Top Gun suggests in its
initial responsive brief on appeal: ―Top Gun sent an email inquiry to Peters only
after receiving his resume from a third party,‖ or ―It was done in response to Peters
posting his resume online.‖8
8
Regardless, as discussed in more detail infra, our holding today would be the same even
if the evidence supported Top Gun‘s assertion that Peters initiated contact by emailing or faxing
his resume directly to Top Gun.
16
C. New Jersey had Personal Jurisdiction over Top Gun
We conclude that the trial court abused its discretion by vacating the New
Jersey judgment. Top Gun‘s contacts with the forum were sufficient for the courts
of New Jersey to assert personal jurisdiction, and doing so did not offend
traditional notions of fair play and substantial justice.
1. Top Gun had Minimum Contacts in New Jersey for Specific
Personal Jurisdiction
Top Gun had the following contacts with New Jersey that support the
exercise of specific personal jurisdiction:
After reviewing Peters‘s resume, which identified him as a New
Jersey resident, Top Gun sent Peters the September 5 ―form email,‖
describing the services it could provide, explaining the fee structure,
and inviting Peters to call the company.
Top Gun entered into a personal services contract that contemplated a
continuing, long-term relationship for which Top Gun promised to,
among other things, ―[w]ork closely with [a New Jersey resident]
throughout the entire process,‖ provide executive coaching to a New
Jersey resident, make phone calls to hiring managers and recruiters on
behalf of a New Jersey resident, and provide weekly updates to Peters
about its activities.
Top Gun agreed to render services to Peters in connection with
finding employment opportunities in New Jersey, among other states.
Top Gun indeed found Peters an opportunity available in New Jersey,
among other states.
Top Gun sent the contract to Peters in New Jersey for his signature.
Top Gun accepted payment from a billing address in New Jersey.
In their briefing to this court, Top Gun and Peters rely primarily on cases
involving sales of goods. Given the quality and nature of the personal services
contract executed by the parties here, we find those cases overall distinguishable.
In buy-sell cases, facts concerning the nonresident‘s contacts with the forum before
17
executing the transaction are of paramount importance because once the
transaction has been executed, the parties usually go their separate ways, and
―[e]verything [the defendant] wanted out of the contract it ha[s] in hand.‖ See
Michiana, 168 S.W.3d at 787. Such cases do not typically show ―‗continuing
relationships and obligations with citizens of another state.‘‖ See id. at 784
(quoting Burger King, 471 U.S. at 473); see also McKesson Corp. v. Hackensack
Med. Imaging, 962 A.2d 1076, 1079–80, 1086 (N.J. 2009) (minimum contacts
would not be satisfied for ―the casual or occasional purchaser of out-of-state
products‖).
Thus, issues of ―who initiated contact‖ and the frequency of solicitations are
particularly important for determining whether the defendant purposefully availed
itself of the forum in a buy-sell case. Compare Michiana, 168 S.W.3d at 784 (no
personal jurisdiction when the sale was initiated entirely by the resident-buyer who
made a phone call to the nonresident-seller), and Riverside Exports, Inc. v. B.R.
Crane & Equip., LLC, 362 S.W.3d 649, 655–56 (Tex. App.—Houston [14th Dist.]
2011, pet. denied) (no personal jurisdiction when the resident-buyer ―initiate[d] the
purchase of equipment outside Texas by contacting a company outside Texas that
does not direct marketing to Texas‖), with Lebel, 558 A.2d at 1253 (finding
personal jurisdiction when the parties met at a boat show outside the forum, and
the nonresident-seller made over twenty phone calls of solicitation to the resident-
buyer over a period of two years and sent the contract to the buyer in the forum).
These types of contacts, although certainly relevant, are less influential on
the analysis when the parties have a course of dealing or anticipate a long-term
commercial relationship involving multiple contacts. See H. Heller & Co., 209
S.W.3d at 852 (finding personal jurisdiction even though the resident-buyer
initiated contact with the nonresident-seller because the transaction involved
18
multiple sales between the parties, and the seller arranged and paid for shipment to
the forum); see also McKesson, 962 A.2d at 1079–80, 1086 (finding personal
jurisdiction because the nonresident-buyer intended to create a ―long-term
commercial relationship‖ with a resident of the forum, made nine purchases over
eight months, sent a credit card application to the forum, and sent two dishonored
payments to the forum).
Similarly, when a single contract evidences that the parties sought to
establish a long-term arrangement with ―continuing relationship and obligations,‖
it is likely that the nonresident purposefully availed itself of the forum. See Burger
King, 471 U.S. at 473. As the Michiana court acknowledged, a single contract can
give rise to personal jurisdiction when the contract ―involves many contacts over a
long period of time.‖ 168 S.W.3d at 787. Thus, the United States Supreme Court
has found minimum contacts when the parties signed a twenty-year franchise
agreement or a life insurance policy. Id. (citing Burger King, 471 U.S. at 480;
McGee, 355 U.S. at 223).
This court found that a Nevada attorney established minimum contacts with
his clients in Texas even though the clients had ―solicited [the attorney] to
represent them and file suit in Nevada‖ through a third party, a Houston attorney.
Cartlidge v. Hernandez, 9 S.W.3d 341, 344 (Tex. App.—Houston [14th Dist.]
1999, no pet.). The Nevada attorney sent four documents to the clients in Texas
that constituted offers to provide legal representation; the clients signed the
documents in Texas and returned them to Nevada. Id. Although the attorney had
other contacts with Texas unrelated to the clients‘ claims, it was undisputed that
the attorney did not perform any of his obligations under the contracts in Texas.
Id. at 344–45. But the attorney repeatedly sent progress reports to update the
clients about litigation that the attorney had brought in Nevada on their behalf. Id.
19
at 348. Further, the representation agreements did not limit the scope of
representation only to the State of Nevada. Id. at 344.9
Like the attorney in Cartilidge, Top Gun performed all of its services for the
client remotely from its place of business outside the forum. Top Gun also sent a
contract to the forum and promised to work closely with Peters, provide weekly
updates about the status of the work that it was doing for him, and respond to
Peters‘s emails and telephone calls promptly. And like the representation
agreement in Cartlidge, the contract here did not limit the scope of their
relationship to finding employment opportunities in any particular state.10 Top
Gun ultimately found twenty-eight opportunities for Peters in various states,
including New Jersey.
Further, the services agreement evidenced an anticipated relationship among
the parties of an indefinite amount of time: ―until Client is successfully placed; or,
until such time this Agreement is deemed null and void.‖ A clause required Peters
to wait six months to terminate the agreement if Top Gun failed to present four
9
In Weldon-Francke v. Fisher, this court noted that the Texas Supreme Court in
Michiana expressly disapproved of a decision cited in Cartlidge. Weldon-Francke v. Fisher, 237
S.W.3d 789, 797 n.1 (Tex. App.—Houston [14th Dist.] no pet.). Specifically, Michiana
―disapprove[d] of those opinions holding that . . . specific jurisdiction is necessarily established
by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas
number.‖ Michiana, 168 S.W.3d at 791–92 & n.81 (citing Mem’l Hosp. Sys. v. Fisher Ins.
Agency, 835 S.W.2d 645, 650–51 (Tex. App.—Houston [14th Dist.] 1992, no writ)). We are not
faced with such meager facts here. Further, Weldon-Francke did not expressly overrule
Cartlidge, noting that the Nevada attorney in Cartlidge ―had more contacts with Texas than do
the Lawyers in this case.‖ Weldon-Francke, 273 S.W.3d at 797 n.2.
10
Cf. Bryan v. Gordon, No. 14-12-00040-CV, — S.W.3d —, 2012 WL 5333372, at *9
(Tex. App.—Houston [14th Dist.] Oct. 30, 2012, no pet. h.) (no personal jurisdiction in Texas
when listing agreement concerned a one-time Oregon real estate transaction); Jackson v.
Hoffman, 312 S.W.3d 146, 155–56 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (no personal
jurisdiction in Texas when the contract was for restoration of a vehicle located in Missouri);
Weldon-Francke, 237 S.W.3d 789 at 796–97 (no personal jurisdiction in Texas when attorney‘s
representation was limited to New Hampshire property).
20
suitable positions. And the contract allowed Peters the option to defer payment of
the second fee for up to three years if he agreed to make referrals to Top Gun—
five referrals would have been necessary to satisfy this provision. The scope and
duration of the agreement suggests Top Gun purposefully availed itself of the
privileges of conducting activities in the forum and could reasonably expect to be
haled into court there. See McGee, 355 U.S. 220 (personal jurisdiction based on a
life insurance contract that ultimately lasted about two years), rev’g 288 S.W.2d
579 (Tex. Civ. App.—Galveston 1956, writ ref‘d n.r.e.); McKesson Corp., 962
A.2d at 1079–80, 1086 (personal jurisdiction based on a commercial sales
relationship consisting of nine purchases within eight months); H. Heller & Co.,
209 S.W.3d at 852 (personal jurisdiction based on a commercial sales relationship
consisting of three purchases within a year). The services agreement here is
simply not comparable to the type of ―single sale‖ contract in Michiana.
Top Gun indeed ―reached out‖ to New Jersey by emailing Peters after
reviewing his resume, which listed his New Jersey address and lengthy
employment history in New Jersey, and inviting Peters to call Top Gun and engage
its services. Top Gun also sent the contract to New Jersey for Peters‘s signature
and accepted payment of $4,500 from a New Jersey billing address. The contract
itself shows that Top Gun sought to establish a continuing relationship with
obligations owing to a New Jersey resident that would involve many contacts over
a significant period of time.11
11
We also note that the contract lacked a forum selection or choice of law clause, which
suggests that Top Gun did not structure the transaction to avoid being haled into court in New
Jersey. See Michiana, 168 S.W.3d at 792–93 (insertion or deletion of forum selection clause is
some evidence of whether local or foreign jurisdiction was intended); H. Heller & Co., 209
S.W.3d at 852 (finding personal jurisdiction and distinguishing Michiana in part because of the
lack of a choice of law provision in the sales contract).
21
We conclude that Top Gun sought a benefit, advantage, or profit by availing
itself of New Jersey, and its contacts with the forum were purposeful and not the
result of Peters‘s unilateral activity. Top Gun failed to establish by clear and
convincing evidence that it lacked minimum contacts with New Jersey.12
Peters‘s first issue is sustained.
2. Jurisdiction in New Jersey Comported with Traditional
Notions of Fair Play and Substantial Justice
Top Gun failed to meet its burden to establish that the assertion of personal
jurisdiction in New Jersey would have offended traditional notions of fair play and
substantial justice.
Regarding the burden for Top Gun to litigate in New Jersey, Top Gun
presented evidence that it had no offices outside Texas. But Chrest acknowledged
that Top Gun sent its ―form email‖ to anyone who sent a resume to Top Gun, either
directly or through third-party ―resume blasters,‖ and that Top Gun received 500 to
1,000 resumes per day in 2008. Top Gun also conducted a nationwide job search
for Peters.13 Because Top Gun apparently conducted business across state lines
routinely, this factor weighs only slightly against jurisdiction in New Jersey. See
H. Heller & Co., 209 S.W.3d at 854.14
12
Top Gun argues that its website was passive, and personal jurisdiction should not be
based on its website. Peters does not argue that Top Gun‘s website in particular supports New
Jersey‘s exercise of personal jurisdiction, and the record evidence concerning Top Gun‘s website
is scant. The level of interactivity of Top Gun‘s website does not inform our decision.
13
Chrest testified that Top Gun gave Peters twenty-eight opportunities ―from California
to Florida,‖ as well as Connecticut, New York, and New Jersey.
14
Top Gun suggests that its ―clients may be anywhere in the country and not limited to
the Houston area. It would place a great financial burden on Top Gun to travel to every
jurisdiction to defend itself.‖ Top Gun argues essentially that it should be amenable to suit only
in Texas. Our holding today, however, is appropriately limited to the facts of this case. We do
not hold that Top Gun is amenable to suit in every state arising out of every contract made with a
nonresident of Texas. We hold only that Top Gun was subject to specific personal jurisdiction in
22
Further, Peters also had an interest in obtaining convenient and effective
relief in New Jersey; and New Jersey has a manifest interest in protecting its
citizens from injuries caused by nonresidents. See, e.g., McGee, 355 U.S. at 223;
H. Heller & Co., 209 S.W.3d at 854. New Jersey also has ―a legitimate interest in
carrying out its own law.‖ Lebel, 558 A.2d at 1258.15
Finally, Top Gun alleges that the two factors concerning the interstate
judicial system‘s efficient resolution of controversies, and the shared interest of the
States in furthering fundamental substantive social policies, ―are likewise not
called into play.‖ But Top Gun fails to identify any compelling consideration for
why jurisdiction would be unreasonable in New Jersey, and none are evident from
the record. See Guardian Royal, 815 S.W.2d at 231; H. Heller & Co., 209 S.W.3d
at 855. If anything, these factors weigh in favor of upholding New Jersey‘s
assertion of jurisdiction when litigated in a post-judgment enforcement action. See
McGee, 355 U.S. at 224 (despite the inconvenience for the nonresident to defend in
California where it had only one customer, there was no denial of due process to
enforce a California default judgment in a Texas court; ―There is no contention that
respondent did not have adequate notice of the suit or sufficient time to prepare its
defenses and appear.‖).
Accordingly, Top Gun failed to meet its burden on this prong of the personal
jurisdiction inquiry. Peters‘s second issue is sustained.
CONCLUSION
Having concluded that the trial court erred by vacating the New Jersey
judgment, we reverse the trial court‘s order and render that the judgment Peters
filed, number VJ-005161-10, entered in the Superior Court of New Jersey Law
New Jersey for claims related to these particular contacts with New Jersey.
15
Peters‘s suit was based in part on Top Gun‘s violation of a New Jersey statute.
23
Division, Morris County Special Civil Part, on July 6, 2010, in docket number DC-
014124-09, is presently enforceable as a Texas judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Boyce, Jamison, and McCally.
24