David L. Shuman v. Sean P. Tracey & Sean P. Tracey Esq., P.C. D/B/A Tracey Fox King & Walters ( 2023 )

Opinion issued April 27, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00561-CV
———————————
DAVID L. SHUMAN, Appellant
V.
DECLAN JAMES GANLEY, SEAN P. TRACEY, & SEAN P. TRACEY
ESQ., P.C. D/B/A TRACEY FOX KING & WALTERS, Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2020-61864
MEMORANDUM OPINION
In this interlocutory appeal,1 appellant David Shuman challenges the trial
court’s order denying his special appearance in the case brought by appellees
Declan Ganley, Sean Tracey, and Sean P. Tracey Esq., P.C. d/b/a/ Tracey Fox
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TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7).
King & Walters. Shuman contends that the trial court erred in denying his special
appearance because the court lacks specific jurisdiction over him and in denying
his motion to transfer venue.
We reverse and remand with instructions to the trial court to dismiss
Shuman from the suit for lack of personal jurisdiction.
Background
Declan Ganley, an Irish citizen living in Ireland, sued Sean Tracey, a Texas
resident, who also has a home and office in Michigan, and Shuman, a New York
resident. Ganley sued Tracey in Texas and alleged claims for breach of contract,
fraud, and breach of fiduciary duty. Tracey, in turn, filed a third-party petition
against Shuman for the same claims. The underlying controversy revolves around a
debt owed by Ganley and guaranteed by Shuman.
A. Shuman guarantees a loan between Ganley and Worth.
Ganley owned 235,000 shares in Rivada Networks, Inc., a Delaware
corporation with its principal place of business in Virginia. Ganley used his shares
as collateral for a $3 million loan from Worth Capital Holdings (“Worth”). Worth
is a Delaware entity that, at the time, had its principal place of business in New
York.
A few months after the original loan agreement was executed, Ganley and
Worth entered into an amended agreement that increased the principal by $1.5
2
million. On the same day, Shuman, who was Ganley’s friend and occasional
business partner, personally guaranteed Ganley’s $4.5 million loan obligation.
Ganley and Worth modified the loan agreement several times, including extending
the maturity date and increasing the amount of the initial obligation in return for
extension fees. The modifications included a list of various payoff amounts and
dates whereby Worth would acquire Rivada stock at certain prices. After all
modifications, Ganley owed Worth $9 million.
Ganley never repaid Worth. Worth foreclosed on Ganley’s debt, including
the Rivada stock that Ganley had used to secure the loan. Worth obtained Rivada
common stock for $100,000. Worth sued Shuman in federal court in New York on
Shuman’s personal guarantee of Ganley’s loan.
B. Ganley attempts to settle the lawsuit between Worth and Shuman.
While Worth’s suit against Shuman was pending, Ganley contacted Shuman
and told him that Tracey was an investor in Rivada and a close acquaintance.
Ganley told Shuman that he had been working with Tracey to obtain funding to
resolve Worth’s claims against Shuman so that the Rivada shares Worth had
acquired could be recouped.
Ganley suggested that Shuman speak by phone with Tracey about his efforts
to obtain settlement funding. Shuman and Tracey spoke by phone and email
periodically for a few months regarding Shuman’s efforts to negotiate a settlement
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with Worth and Tracey’s efforts to obtain investment funds in Rivada for a
settlement. The men never met in person.
Tracey found two investors, one of whom was in Texas. Ultimately, Shuman
and Worth entered into a settlement agreement. In his capacity as Chairman and
CEO of Rivada, Ganley approved the transfer of Rivada stock from Worth to
Shuman, pursuant to the settlement agreement, and from Shuman to the two
investors in return for their settlement funding.
Following the settlement, Shuman assigned his rights under the loan
agreement, which he acquired from Worth through the settlement, to a third party,
Astrea NYNY LLC, which sued Ganley in state court in New York. The New
York court rendered a default judgment against Ganley.
C. Ganley and Tracey sue Shuman.
Ganley and Tracey argue that Shuman did not follow through on their
agreement regarding Rivada shares after the settlement. They argue that Shuman
retained Rivada shares that the three men had agreed would be dispersed to each of
them. A few weeks after the settlement agreement, Ganley sued Tracey in Texas
alleging that he breached various duties by failing to secure the return of the
Rivada stock collateral. Tracey filed a third-party claim against Shuman. Tracey
asserted that Shuman was subject to personal jurisdiction in Texas because “the
acts and omissions giving rise to this cause of action occurred in Texas and/or
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Shuman engaged the services of Tracey in Houston, Texas.” Shuman filed a
special appearance and motion to dismiss or transfer venue pursuant to the
contractual forum-selection clauses in the underlying loan and settlement
documents.
Ganley amended his petition to add claims against Shuman. Ganley alleged
that Shuman was subject to personal jurisdiction in Texas because Shuman
“engaged and purposefully availed himself of services by and through Defendant
Tracey in Houston, Texas. A substantial portion of the acts and omission
complained of occurred in Harris County, Texas.” Shuman filed an additional
special appearance and motion to dismiss or transfer venue as to Ganley’s claims.
Both Ganley’s and Tracey’s claims against Shuman allege that Shuman
improperly retained 46,000 shares of 253,000 shares of Rivada stock that Worth
assigned to Shuman through the settlement. Ganley and Tracey argue that Shuman
previously agreed not to retain any of the stock. The trial court denied Shuman’s
special appearance and motion to dismiss or transfer. The trial court did not make
any findings of fact or conclusions of law. Shuman appeals.
Personal Jurisdiction
In his first issue, Shuman argues that the trial court erred in denying his
special appearance because he did not have the minimum contacts with Texas
necessary for Texas to assert jurisdiction over him.
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The existence of personal jurisdiction is a question of law, which must
sometimes be preceded by the resolution of underlying factual disputes. BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Paul Gillrie
Inst., Inc. v. Universal Comput. Consulting, Ltd., 183 S.W.3d 755, 759 (Tex.
App.—Houston [1st Dist.] 2005, no pet.). When the underlying facts are
undisputed or otherwise established, we review a trial court’s denial of a special
appearance de novo. Paul Gillrie Inst., 183 S.W.3d at 759. Where, as here, a trial
court does not issue findings of fact or conclusions of law with its
special-appearance ruling, all fact findings necessary to support the judgment and
that are supported by the evidence are implied. Marchand, 83 S.W.3d at 795; Paul
Gillrie Inst., 183 S.W.3d at 759.
A trial court determines a “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). The plaintiff bears the initial burden of
pleading allegations sufficient to bring the nonresident defendants within the
provisions of the Texas long-arm statute. Am. Type Culture Collection v. Coleman,
83 S.W.3d 801, 807 (Tex. 2002); Paul Gillrie Inst., 183 S.W.3d at 759. The burden
of proof then shifts to the nonresident defendants to negate all the bases of
jurisdiction alleged by the plaintiff. Kawasaki Steel Corp. v. Middleton, 699
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S.W.2d 199, 203 (Tex. 1985); see also Kelly v. Gen. Interior Constr., Inc., 301
S.W.3d 653, 658 (Tex. 2010) (“Because the plaintiff defines the scope and nature
of the lawsuit, the defendant’s corresponding burden to negate jurisdiction is tied
to the allegations in the plaintiff’s pleading.”).
A single basis for personal jurisdiction is sufficient to confer jurisdiction
over a nonresident defendant. See Citrin Holdings, LLC v. Minnis, 305 S.W.3d
269, 279 (Tex. App.—Houston [14th Dist.] 2009, no pet.). If a nonresident
defendant is subject to specific jurisdiction, this is sufficient. See Am. Express
Centurion Bank v. Haryanto, 491 S.W.3d 337, 346 n.8 (Tex. App.—Beaumont
2016, no pet.); Minnis, 305 S.W.3d at 279. A court need not assess the nonresident
defendant’s contacts on a claim-by-claim basis where, as here, all claims
essentially arise from the same forum contacts. See Moncrief Oil Int’l Inc. v. OAO
Gazprom, 414 S.W.3d 142, 150–51 (Tex. 2013); Proppant Sols. LLC v. Delgado,
471 S.W.3d 529, 537 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
A court may assert personal jurisdiction over a nonresident defendant only if
the requirements of both the Fourteenth Amendment’s due process clause and the
Texas long-arm statute are satisfied. See U.S. CONST. amend. XIV, § 1; TEX. CIV.
PRAC. & REM. CODE § 17.042; Guardian Royal Exch. Assurance, Ltd. v. English
China Clays, P.L.C., 815 S.W.2d 223, 226–27 (Tex. 1991). The Texas long-arm
statute allows a court to exercise personal jurisdiction over nonresident defendants
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who do business in Texas. TEX. CIV. PRAC. & REM. CODE § 17.042. A nonresident
defendant “does business” in Texas if he “contracts by mail or otherwise with a
Texas resident and either party is to perform the contract in whole or in part” in
Texas, he “commits a tort in whole or in part” in Texas, or he “recruits Texas
residents, directly or through an intermediary located in [Texas], for employment
inside or outside the state.” Id. The Texas Supreme Court has repeatedly
interpreted this statutory language “to reach as far as the federal constitutional
requirements of due process will allow.” Guardian Royal, 815 S.W.2d at 226.
Therefore, the requirements of the Texas long-arm statute are satisfied if the
exercise of personal jurisdiction comports with federal due process limitations. Id.
The United States Constitution permits a state to assert personal jurisdiction
over a nonresident defendant only if he has some minimum, purposeful contacts
with the state and if the exercise of jurisdiction will not offend traditional notions
of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326
(Tex. 1998). Nonresident defendants who have purposefully availed themselves of
the privileges and benefits of conducting business in the state have sufficient
contacts with the state to confer personal jurisdiction. See Guardian Royal, 815
S.W.2d at 226.
The “purposeful availment” requirement has been characterized by the
Texas Supreme Court as the “touchstone of jurisdictional due process.” Michiana
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Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In
Michiana, the Texas Supreme Court articulated three important aspects of the
purposeful availment inquiry. Id. at 785. First, only the nonresident defendant’s
contacts with the forum count. Id. This ensures that a nonresident defendant is not
haled into a jurisdiction solely by the unilateral activities of a third party. Id. (citing
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Second, the acts
relied on must be purposeful; the nonresident defendant may not be haled into a
jurisdiction solely based on contacts that are “random, isolated, or fortuitous.”
Michiana, 168 S.W.3d at 784 (quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770,
774 (1984)). Third, the nonresident defendant “must seek some benefit, advantage,
or profit by ‘availing’ [himself] of the jurisdiction” because “[j]urisdiction is
premised on notions of implied consent” and by “invoking the benefits and
protections of a forum’s laws, . . . a nonresident consents to suit there.” Id. (citing
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
The nonresident defendant’s contacts with a forum can give rise to either
general or specific jurisdiction. Marchand, 83 S.W.3d at 795. Specific jurisdiction
is established if the nonresident defendant’s alleged liability arises from or relates
to an activity conducted within the forum. Id. at 796. When specific jurisdiction is
asserted, the minimum contacts analysis focuses on the relationship between the
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nonresident defendant, the forum, and the litigation. Moki Mac River Expeditions
v. Drugg, 221 S.W.3d 569, 575–76 (Tex. 2007).
Foreseeability is an important consideration in deciding whether a
nonresident defendant has purposefully established minimum contacts with the
forum state. Burger King Corp., 471 U.S. at 474; Guardian Royal, 815 S.W.2d at
227. The concept of foreseeability is implicit in the requirement that there be a
substantial connection between the nonresident defendant and Texas, arising from
actions or conduct of the nonresident defendant purposefully directed toward
Texas. Guardian Royal, 815 S.W.2d at 227.
A. Specific Jurisdiction2
Shuman argues that the trial court erred in concluding that Texas has
specific jurisdiction over him because he did not have substantial contacts with
Texas, his interaction with a Texan was fortuitous rather than purposeful, and he
did not seek advantage or profit by availing himself of Texas.
In determining whether Ganley and Tracey pleaded sufficient jurisdictional
facts, we consider their pleadings as well as their responses to the amended special
appearance. See TEX. R. CIV. P. 120a(3); Max Protetch, Inc. v. Herrin, 340 S.W.3d
878, 883 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Touradji v. Beach Cap.
P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In
2
Neither party argues the existence of general jurisdiction.
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conducting our review, we accept as true the allegations in Tracey’s and Ganley’s
petitions. See Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 86 (Tex. 2002) (in
considering jurisdictional motions, reviewing court construes liberally pleadings in
plaintiff’s favor); Max Protetch, 340 S.W.3d at 883; Touradji, 316 S.W.3d at 23.
Ganley asserted first-party claims against Tracey for failing to ensure that
the Rivada common stock was returned to Ganley. He also asserted claims against
Shuman for failing to return the common stock. Tracey, in turn, asserted first and
third-party claims against Shuman claiming that Shuman was the true cause of
Ganley’s injuries.
Both Ganley and Tracey allege the same contacts with Texas to justify
personal jurisdiction over Shuman. They each allege that Shuman purposefully
availed himself of services from Tracey in Houston and that a substantial portion
of the acts and omissions underlying their claims occurred in Harris County.
In his special appearance, Shuman asserts that his only connection to Texas
is that he had phone and email communications with Tracey, which he argues are
insufficient to support personal jurisdiction. In his affidavit, Shuman states that it
was Ganley who sought assistance from Tracey for outstanding debt in New York.
Tracey first called Shuman at Ganley’s behest. Shuman spoke with Tracey by
phone and email, but he never met Tracey in person or conducted a video
conference.
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Shuman also argues that the dispute in the underlying case has nothing to do
with Texas. None of the transactions or occurrences involved in the case occurred
in Texas. Ganley’s loan was not executed or performed in Texas, nor was
Shuman’s guarantee. Shuman asserts that the only connection with Texas is
Tracey’s residency.
In his response to Shuman’s special appearance, Ganley alleges that the trial
court has specific jurisdiction over Shuman because Shuman “sought counsel from
a Texas resident and licensed attorney (Tracey), asked Tracey to raise settlement
funds from other Texas residents, regularly communicated with Tracey about the
lawsuit and settlement, promised payment of company shares to Tracey, and
converted shares rightly owned by Tracey.” Ganley attached an affidavit by Tracey
that states that Tracey was contacted by Ganley after a lender foreclosed on shares
of Rivada that Ganley had pledged for a loan and co-signed with Shuman. The
affidavit states that both Ganley and Shuman wanted Tracey’s help to find people
who could contribute to settling the litigation in exchange for a portion of Rivada
shares. In the affidavit, Tracey testifies that he found a Texas-based investor
willing to contribute, and that Shuman was not consulted because he had no
standing in the interest of the shares. Tracey states that he emailed with Shuman
and Shuman’s attorneys regularly between May and October 2020 regarding the
settlement and the funds raised for the settlement.
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Shuman filed a supplement in support of his special appearance and attached
another affidavit executed by Tracey in a separate action in New York. While
Shuman disputes much of the New York affidavit, he points out that in the New
York suit’s affidavit, Tracey represents that he was hired by Ganley, rather than as
a joint effort between Ganley and Shuman. The affidavit states that Tracey
represented Ganley in his dispute with Worth Capital concerning shares of Rivada
that collateralized a loan and were foreclosed upon. Tracey states that he brought
two investors to Ganley’s attention and worked on a deal where the investors
would provide investment capital to Rivada which could be used to fund a
settlement with Worth Capital. Tracey’s affidavit in the New York action states:
“Mr. Shuman never spoke to either investor, and it was entirely due to my contacts
and work on behalf of Mr. Ganley that Mr. Shuman was in any position to settle
his lawsuit with Worth Capital at all.”
Shuman also attached emails to the supplemental response showing that
Tracey was in Michigan during some of their communication. He asserts that he
had reason to believe that the lawyer Ganley hired was in Michigan rather than
Texas.
On appeal, Shuman argues that communication with Tracey alone is not
enough to establish specific jurisdiction. He cites to Michiana and argues that
phone calls are not enough to establish purposeful availment. 168 S.W.3d at 791
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(stating technology changes make reliance on phone calls obsolete as proof of
purposeful availment). He further argues that to the extent Ganley and Tracey
argue that Shuman entered into a contract with them, a contract formed by phone is
still insufficient to confer jurisdiction. See id. at 787 (holding contract formed by
phone with Texas resident insufficient to confer jurisdiction for disputes arising
from contract). Shuman asserts that the bulk of his communication with Tracey
occurred while Tracey was residing in his second home in Michigan. Shuman
reiterates that the only connection between Shuman and Texas supported by the
record is the fact that Shuman communicated with Tracey by phone and email.
Ganley and Tracey argue on appeal that Shuman sought financial benefit in
Texas by soliciting a Texas resident for a loan and that Tracey was Shuman’s agent
for doing so. Shuman responds that Tracey’s affidavit’s allegation that he acted as
Shuman’s agent in Texas is conclusory and that there is no evidence that Shuman
engaged in any conduct in or directed at Texas.
B. Analysis
1. Purposeful Availment
The pleadings and evidence do not support the trial court’s implied findings
that Shuman had sufficient minimum contacts with Texas and that these contacts
were substantially connected to the operative facts of the litigation for the exercise
of specific jurisdiction over Shuman to be proper. See Moki Mac, 221 S.W.3d at
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575–76. We conclude that Shuman has negated all bases for an assertion of
specific jurisdiction over him.
Regarding agency, Tracey and Ganley did not meet their initial burden of
pleading allegations sufficient to confer jurisdiction. There is no pleading to
support Tracey’s or Ganley’s allegation that Tracey was Shuman’s agent. Ganley
alleged claims for breach of contract, fraud, and breach of fiduciary duty. Tracey
alleged claims against Shuman for breach of contract and breach of fiduciary duty.
“[T]he plaintiff bears the initial burden of pleading allegations sufficient to confer
jurisdiction.” Moncrief Oil, 414 S.W.3d at 149. A defendant is obligated to “negate
all possible grounds for personal jurisdiction alleged by the plaintiff.” Capital Fin.
& Com. AG v Sinopec Overseas Oil & Gas, Ltd., 260 S.W.3d 67, 81 (Tex. App.—
Houston [1st Dist.] 2008, no pet.) (refusing to consider agency theory on appeal
when not pleaded). The defendant has no burden to negate a potential basis for
personal jurisdiction when it is not pleaded by the plaintiff. Kelly v. Gen. Interior
Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). Tracey and Ganley only asserted
an agency theory on appeal, and because it was not pleaded, Shuman is not
obligated to negate it.
Moreover, the uncontroverted evidence does not establish an agency
relationship. Agency is a consensual relation between two parties “by which one
party acts on behalf of the other, subject to the other’s control.” Reliant Energy
15
Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782–83 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (internal quotation omitted).
Authorization to act and control of the action are the two essential elements of
agency. Id. at 783. Agency is never presumed and the party asserting the
relationship has the burden of proving it. Capital Fin. & Com., 260 S.W.3d 67 at
83. The evidence does not support that an agency relationship existed between
Shuman and Tracey. Tracey’s declarations establish that he did not consult
Shuman regarding negotiations with investors and that the deal with the investors
was “exclusively negotiated” by Tracy through Ganley. Tracey also stated that he
represented Ganley, while Shuman had his own lawyers. There is no evidence to
support an agency theory, and therefore, no basis to impute Tracey’s conduct to
Shuman for jurisdictional purposes. See Suzlon Energy Ltd. v. Trinity Structural
Towers, Inc., 436 S.W.3d 835, 843 (Tex. App.—Dallas 2014, no pet.) (holding no
evidence to support agency-based theory of jurisdiction).
Ganley’s and Tracey’s allegations that Shuman’s communication with
Tracey establishes jurisdiction is similarly deficient. Ganley and Tracey rely on the
fact that for a period of months, Tracey communicated by phone and email with
Shuman or his counsel. Communications, without more, cannot support
jurisdiction. See Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 560
(Tex. 2018) (“On their own, numerous telephone communications with people in
16
Texas do not establish contacts.”). The fact that Shuman or his counsel discussed
with Tracey the progress toward settling the lawsuit with Worth by email or phone
on numerous occasions does not demonstrate the quality and nature of
communications to establish purposeful availment. Searcy v. Parex Res., Inc., 496
S.W.3d 58, 74–75 (Tex. 2016) (stating that discussions on acquiring non-Texan
assets do not establish purposeful contacts in Texas). As in Searcy, “the [Texas-
based defendant] involved could, quite literally, have been based anywhere in the
world, and [the Canadian defendant company] would presumably have interacted
with it in the same way as they did with its employees [in Canada].” Id. (holding
no specific jurisdiction over Canadian defendant). The mere coincidence that
Tracey was in Texas does not demonstrate that Shuman purposefully availed
himself of Texas for jurisdictional purposes.
Ganley argues that jurisdiction is proper because not only did Shuman
deliberately correspond with Tracey in Texas, but he also sought “some benefit,
advantage, or profit by availing” himself of the jurisdiction. Michiana, 168 S.W.3d
at 785 (stating court must find that defendant sought “benefit, advantage, or profit
by availing himself of this State’s jurisdiction”). Ganley argues that Shuman
sought benefit of Texas by actively soliciting loans from Texans. The record does
not support this contention. The uncontroverted evidence establishes that Ganley
hired Tracey without Shuman’s involvement. In negotiating the lawsuit with
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Worth, Tracey represented Ganley, and Shuman had his own counsel. Tracey
worked exclusively on behalf of Ganley, and Shuman was not consulted about
selecting or negotiating with any investors, whether based in Texas or elsewhere. It
is fortuitous that Tracey was in Texas when he called Shuman at Ganley’s request.
It is equally fortuitous that Ganley chose Tracey, a Texas resident, to help resolve
his litigation with Worth in New York and that one of the investors was a Texan.
The record does not reflect that Shuman solicited business or sought the benefit of
Texas in a way that satisfies the long-arm statute. Michiana, 168 S.W.3d at 785.
2. Relatedness of Contacts to Litigation
Finally, Ganley and Tracey have not pleaded jurisdictional facts to satisfy
the second prong of specific jurisdiction, which requires that there be a “substantial
connection” between the defendant’s forum contacts and the “operative facts of the
litigation.” Moki Mac, 221 S.W.3d at 585. We consider what the claims are
“principally concerned with,” whether the contacts will be “the focus of the trial”
and “consume most if not all of the litigation’s attention,” and whether the contacts
are “related to the operative facts” of the claim. TV Azteca v. Ruiz, 490 S.W.3d 29,
53 (Tex. 2016) (internal quotations omitted). Ganley’s and Tracey’s claims
concern alleged statements by Shuman about the return of Rivada stock. Shuman
denies making an agreement with Ganley or Tracey regarding the stock, but even if
their allegations are true, the facts do not have a nexus to Texas. There is no
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allegation about the source of the funds used to satisfy Ganley’s debt to Worth and
to settle Worth’s suit against Shuman. There is no allegation or claim related to
Tracey’s efforts to obtain those funds. The investors are not parties to the lawsuit,
nor do the claims involve their participation in the settlement or their investment.
The fact that Tracey found a Texas investor is unrelated to whether Shuman
breached a contract, breached a fiduciary duty, or committed fraud against Tracey
or Ganley. See Ajamie LLP v. Podesta Grp., Inc., No. 01-19-00503-CV, 2020 WL
716734, at *5 (Tex. App.—Houston [1st Dist.] Feb. 13, 2020, no pet.) (mem. op.)
(holding “marginally relevant” Texas contacts insufficient to satisfy substantial
connection between contacts and operative facts of litigation because contacts did
not concern disputed facts).
Accordingly, we sustain Shuman’s issue regarding denial of his special
appearance. See Peredo v. M. Holland Co., 310 S.W.3d 468, 476 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (when minimum-contacts requirement not met,
unnecessary to address “fair play” portion of due-process test).
Motion to Transfer Venue
Having reversed the trial court’s ruling on specific jurisdiction over Shuman,
we need not reach Shuman’s second issue that the trial court erred in denying his
motion to transfer venue. See TEX. R. APP. P. 47.1.
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Conclusion
Having concluded that Shuman lacks sufficient contacts with Texas to
support the trial court’s exercise of personal jurisdiction, we reverse the trial
court’s order denying his special appearance, render judgment dismissing the
claims against him.
Peter Kelly
Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
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