John P. Guillory and Preis, PLC v. Hallmark Specialty Insurance Company ( 2023 )

Opinion issued August 31, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00081-CV
———————————
JOHN P. GUILLORY AND PREIS PLC, Appellants
V.
HALLMARK SPECIALTY INSURANCE COMPANY, LESSLEY
SERVICES, LLC, ACE AMERICAN INSURANCE COMPANY, and
CERTAIN UNDERWRITERS AT LLOYD’S LONDON SUBSCRIBING TO
POLICY NO. SCT 1011119, Appellees
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2021-33760
MEMORANDUM OPINION
Appellees Lessley Services, LLC, Hallmark Specialty Insurance Company,
ACE American Insurance Company, and Certain Underwriters at Lloyd’s London,
subscribing to Policy No. SCT 1011119 filed claims against Appellants John P.
Guillory and Preis PLC for legal malpractice stemming from their representation of
Lessley and ACE in an environmental cleanup case litigated in Louisiana state court.
Guillory and Preis PLC filed two special appearances, which the trial court denied.
In their sole issue, Guillory and Preis PLC contend the trial court erred in denying
their special appearances because they are not subject to specific jurisdiction in
Texas.
We reverse the trial court’s orders denying Guillory’s and Preis PLC’s special
appearances and render judgment dismissing Appellees’ claims against Guillory and
Preis PLC.
Background
Appellee Lessley Services, LLC is a petroleum trucking company that
transports crude oil and other petroleum products for the oil and gas industry. It is
a Texas limited liability company with its principal office in Texas. Lessley does
business in Louisiana.1
Blaise St. Clair works for SLLD Transport Company, LLC. In November
2019, he fell asleep for about four hours while transferring crude oil into his tanker
trailer from a storage tank located on property in Cameron Parish, Louisiana owned
1
In its pleadings, Lessley Services, LLC states that its principal place of business is
in “Texas” and the record reflects that Lessley has an office in “East Texas.”
Although Hallmark Specialty Insurance Company’s pleading states that Lessley’s
principal place of business is in Houston, Texas, the record does not support this
assertion.
2
by Domatti M.A. Management Trust. Lessley had leased the tanker trailer from
SLLD Transport. St. Clair reported the spill to Lessley who hired a containment and
remediation contractor to clean up the Domatti property in Louisiana.
Lessley reported the incident to its primary commercial auto insurer, Appellee
ACE American Insurance Company. The insurance policy ACE issued to Lessley
provides $1,000,000 in coverage for bodily injury and property damage coverage.
Lessley also had two excess coverage insurance policies for bodily injury and
property damage claims, one issued by Certain Underwriters at Lloyd’s London,
subscribing to Policy Number SCT1011119 (“Underwriters”), and the other by
Hallmark Specialty Insurance Company. The policy issued by Underwriters,
Lessley’s first-layer excess insurer, provided $2,000,000 in coverage for each
occurrence. Hallmark, Lessley’s second-layer excess insurer, also provided
$2,000,000 in coverage for each occurrence.
Louisiana Lawsuit
On February 10, 2020, Domatti filed suit against Lessley in the 38th Judicial
District Court for Cameron Parish, Louisiana for property damage caused by the oil
spill (“Louisiana Lawsuit”). Although ACE initially denied Lessley’s insurance
claim, ACE later accepted coverage and on May 5, 2020, ACE retained Appellants
Preis PLC and John P. Guillory to represent Lessley in the Louisiana Lawsuit. At
3
some point in the litigation, Domatti also added St. Clair, SLLD Transport, and ACE
as defendants. Preis PLC and Guillory were retained to also represent ACE.
Preis PLC, a Louisiana professional law corporation, has its main office in
Lafayette, Louisiana and a satellite office in Houston, Texas. Guillory, a Louisiana
resident, is an attorney with Preis PLC. He works in Preis PLC’s Lafayette,
Louisiana office and he is licensed to practice law in Louisiana and Texas. Neither
Guillory nor Preis PLC represented Lessley prior to the Louisiana Lawsuit.
In November 2020, Guillory met with Lessley’s principals, Jimmy and Vivian
Lessley (the “Lessleys”), at Preis PLC’s Houston office to prepare them for their
depositions in the Louisiana Lawsuit. The depositions were scheduled to take place
the following day in Lake Charles, Louisiana.
In March 2021, Guillory and Preis PLC, acting on behalf of ACE and Lessley,
entered into a Consent Judgment with Domatti and SLLD Transport. The Consent
Judgment stated that SLLD Transport had relinquished control of St. Clair to Lessley
when the spill occurred, and therefore, SLLD Transport was not vicariously liable
for any damages caused by St. Clair. The Consent Judgment further stated that
Lessley, as St. Clair’s “Special Employer,” was “solely liable for damages caused
by the alleged incident.”
In April 2021, Guillory and Preis PLC, acting on behalf of ACE and Lessley,
entered into a Joint Stipulation with Domatti. Among other things, the Joint
4
Stipulation stated that St. Clair, “an operator working in the course and scope of his
employment with Lessley,” fell asleep for four hours while pumping crude oil into
the tanker, “resulting in approximately 193 barrels of crude oil overflowing onto the
Domatti Property.” The Joint Stipulation stated that ACE, Lessley’s insurer,
“originally wrongfully denied the claim.”
In May 2021, the Louisiana Lawsuit proceeded to a jury trial in Cameron,
Louisiana. Guillory defended the claims on behalf of Lessley, ACE, and St. Clair.
The jury rendered a verdict of $4,751,594 against Lessley, ACE, and St. Clair,
jointly and severally.
Texas Lawsuit
A. Hallmark and Lessley
1. Pleadings
In June 2021, Hallmark, Lessley’s second-layer excess insurer, filed an
Original Petition against Lessley, ACE, and Underwriters in Texas state court.
Hallmark sought a declaratory judgment against Lessley declaring it owed no duty
to indemnify Lessley “from or against liability sustained in the [Louisiana Lawsuit]”
or, in the alternative, a declaratory judgment against ACE and Underwriters
declaring “there is no coverage under the Hallmark Policy unless and until ACE and
Underwriters have each exhausted their policy limits under” their respective
policies. Hallmark also asserted an equitable subrogation claim against ACE,
5
alleging that “[t]o the extent Hallmark [was] found liable to Lessley,” it was “entitled
to equitable subrogation against ACE to the extent any such liability was caused by
ACE’s negligence or wrongful claim investigation, trial defense, [] failure to settle
. . . or negligent handling of the defense of Lessley” in the Louisiana Lawsuit.2
In its First Amended Petition, Hallmark added Guillory and Preis PLC as
defendants.3 In addition to its claims against Lessley, ACE, and Underwriters,
Hallmark asserted a legal malpractice claim against Guillory and Preis PLC under
the doctrine of equitable subrogation “for [their] malpractice in handling [] the
defense of Lessley” in the Louisiana Lawsuit. According to Hallmark, Guillory and
Preis PLC committed legal malpractice by jointly defending Lessley and ACE in the
Louisiana Lawsuit despite a conflict of interest, failing to “adequately prepare for
trial,” failing to “file motions to limit Lessley’s liability,” and “most egregiously,
entering into the Consent Judgment and Joint Stipulation.” Hallmark alleged that
2
“Equitable subrogation ‘allows a party who would otherwise lack standing to step
into the shoes of and pursue the claims belonging to a party with standing.’” Allstate
Ins. Co. v. Spellings, 388 S.W.3d 729, 733 (Tex. App.—Houston [1st Dist.] 2012,
pet. dism’d) (quoting Frymire Eng’g Co., Inc. ex rel. Liberty Mut. Ins. Co. v. Jomar
Int’l, Ltd., 259 S.W.3d 140, 142 (Tex. 2008)). “When equitable subrogation applies,
‘the insurer stands in the shoes of the insured, obtaining only those rights held by
the insured against a third party, subject to any defenses held by the third party
against the insured.’” Id. (quoting Mid–Continent Ins. Co. v. Liberty Mut. Ins. Co.,
236 S.W.3d 765, 774 (Tex. 2007)).
3
Hallmark also named Edwin Preis, Jr., Guillory’s co-counsel, as a defendant. Edwin
Preis, Jr. filed a special appearance, which the trial court granted. He is not a party
to this appeal.
6
but for the malpractice of Guillory and Preis PLC, “the amount of any judgment
against Lessley in the [Louisiana] Lawsuit would not have exceeded the combined
available limits of the ACE Policy and the Underwriters Policy.”
In its First Amended Petition, Hallmark alleged Guillory is subject to specific
jurisdiction in Texas because:
Guillory conducts business in Texas, and the claims in this action arise
out of or relate to his purposeful contacts with Texas. Without
limitation, Mr. Guillory engaged in acts and omissions in Houston,
Texas, including meeting with Mr. and Mrs. Lessley, the principals of
Lessley, in connection with his representation of Lessley in a lawsuit
that is the subject of this lawsuit. Furthermore, Mr. Guillory has been
licensed to practice law in Texas since 1992, is admitted to practice
before all Texas state courts and the United States District Court for the
Southern and Western Districts of Texas, and is an attorney with Preis
PLC, which maintains an office in Houston, Texas.
Hallmark alleged Preis PLC is subject to specific jurisdiction in Texas because:
[Preis PLC] conducts business in Texas, and the claims in this action
arise out of or relate to its purposeful contacts with Texas. Without
limitation, Preis PLC maintains a law office in Houston, Texas, which
was the situs of meeting(s) with Lessley where acts or omissions that
are the subject of the claims in this lawsuit occurred, and employs
several attorneys licensed to practice law in Texas.
In October 2021, Lessley filed its Original Cross Claim against Guillory and
Preis PLC for legal malpractice.4 Lessley alleged that Guillory is subject to specific
jurisdiction in Texas because:
[Guillory] conducts business in Texas, and the claims in this action
arise out of or relate to his purposeful contacts with Texas. Without
4
Lessley also named Edwin J. Preis, Jr. as a defendant.
7
limitation, Mr. Guillory engaged in acts and omissions in Houston,
Texas, including meeting with Mr. and Mrs. Lessley, the principals of
Lessley, in connection with his representation of Lessley in a lawsuit
that is the subject, of this lawsuit. Furthermore, Mr. Guillory has been
licensed to practice law in Texas since 1992, is admitted to practice
before all Texas state courts, and the United States District Court for
the Southern and Western Districts of Texas, and is an attorney with
Preis PLC which maintains an office in Houston, Texas.
Lessley alleged Preis PLC is subject to specific jurisdiction in Texas because:
[Preis PLC] conducts business in Texas, and the claims in this action
arise out of or relate to its purposeful contacts with Texas. Without
limitation, Preis PLC maintains a law office in Houston, Texas, which
was the situs of meeting(s) with Lessley where acts or omissions that
are the basis for the claims in this lawsuit occurred, and employs several
attorneys licensed to practice law in Texas.
According to Lessley, Guillory and Preis PLC committed legal malpractice because
they provided “erroneous legal advice and/or failed to provide advice, opinions or
relevant information when legally obligated to do so, thereby breaching their duties
owed to Lessley.” Lessley alleged Guillory and Preis PLC breached their duty of
care to Lessley by:
(a) failing to provide notice to Lessley of Defense Counsels[’]
conflict of interest in representing both Lessley and Ace;
(b) representing the interests of Ace above Lessley in the
underlying lawsuit;
(c) entering into the Consent Judgment and Joint Stipulation
without providing any notice to Lessley or advising Lessley
of the effect of the same;
(d) failing to timely file necessary motions to limit Lessley’s
liability;
8
(e) improperly preparing for and managing Lessley’s defense in
the underlying lawsuit;
(f) falling to seek an apportionment of liability among Ace and
Lessley in the underlying lawsuit; and
(g) failing to appeal the judgment.
Lessley also asserted that it was prejudiced by “a number of actions” Guillory took
“over the course of the defense” of the Louisiana Lawsuit. According to Lessley,
although Guillory attended the deposition of ACE’s corporate representative on
behalf of ACE, Guillory failed to “ask any questions or inquire as to how Ace's
actions negatively affected Lessley.” In addition to agreeing to “a verdict form that
placed responsibility for any verdict sums on all defendants rather than obtain a form
that apportioned fault between the defendants,” Guillory also failed to exclude
evidence at trial detrimental to Lessley.
2. Special Appearance
Guillory and Preis PLC filed a special appearance contesting jurisdiction in
Texas. They argued Hallmark and Lessley had not pled facts establishing that
Guillory and Preis PLC had purposefully availed themselves of the privilege of
conducting activities within Texas. They also argued there is no substantial
connection between Guillory’s and Preis PLC’s Texas contacts and the operative
facts of the underlying litigation.
9
Guillory and Preis PLC argued that the “sum total” of their alleged contacts
with Texas consisted of Guillory’s Texas law license and Preis PLC “maintaining a
satellite office in Houston where Guillory met with Lessley to prepare for a
deposition in Louisiana.” According to Guillory and Preis PLC, none of these
contacts concern the operative facts of the litigation because all of the alleged
negligent conduct giving rise to the lawsuit occurred “in either Lafayette, Louisiana,
where Preis and Guillory exercised their professional judgment, or in the Underlying
Suit in Cameron Parish, Louisiana.”
Among other evidence, Guillory and Preis PLC submitted affidavits from
Guillory and Edwin G. Preis, Jr. Edwin Preis stated in his affidavit that, among
other things, he is the managing partner and founder of Preis PLC. According to
Edwin Preis, Preis PLC is a professional law corporation incorporated in Louisiana,
with its principal place of business in Lafayette, Louisiana. Preis PLC has a satellite
office in Houston, Texas. Edwin Preis and Guillory were Lessley’s and ACE’s
counsel of record in the Louisiana Lawsuit.
In his affidavit, Guillory stated that he is a Louisiana resident licensed to
practice law in Louisiana and Texas. Guillory practices out of Preis PLC’s principal
office in Lafayette, Louisiana. Guillory stated that ACE retained Preis PLC to
represent ACE and Lessley in the Louisiana Lawsuit and he and Edwin Preis were
Lessley’s and ACE’s counsel of record. The claims in the Louisiana Litigation were
10
tried to a jury and Guillory defended the claims on behalf of Lessley, ACE, and St.
Clair in Cameron Parish, Louisiana.
Guillory further stated that he “met with Lessley’s principals, Mr. and Mrs.
Lessley on November 19, 2020, at Preis PLC’s satellite-office in Houston, for the
convenience of Mr. and Mrs. Lessley who live in Texas.” According to Guillory,
the “purpose of meeting with Lessley’s principals was to prepare them for their
deposition conducted on November 20, 2020 in Lake Charles, Louisiana.” Guillory
stated he did not give Lessley legal advice based on Texas law, represent Lessley
before any court in Texas, or represent Lessley in any other matter besides the
Louisiana Lawsuit.
Lessley and Hallmark filed a response to Guillory and Preis PLC’s special
appearance. They argued “Guillory provided face-to-face legal advice to Lessley’s
principals[, Jimmy and Vivian Lessley] while physically present in the firm’s
Houston office, including by preparing Mr. and Mrs. Lessley for their crucial
depositions” in the Louisiana Lawsuit, and thus Guillory should have “reasonably
anticipate[d] being called into a Texas court to account for his malpractice in so
advising Lessley and in otherwise representing Lessley” in the Louisiana Lawsuit.
Hallmark and Lessley argued Guillory was subject to personal jurisdiction in Texas
because:
• Guillory engaged in “acts and omissions in Houston, Texas,
including meeting with Mr. and Mrs. Lessley, the principals of
11
Lessley, in connection with his representation of Lessley” in the
Louisiana Lawsuit.
• Guillory is licensed to practice in Texas and admitted to Texas
state and federal courts.
• Guillory is a member in Preis PLC, which maintains a Houston
office.
Lessley and Hallmark further argued that during the November 2020 meeting
in Houston, Texas, “Guillory failed to spend the time necessary to adequately
prepare [the Lessleys] for their depositions” because Guillory “did not delve into the
relationship among St. Clair, SLLD, and Lessley” and when the Lessleys expressed
their belief that St. Clair and his employer SLLD Transport should bear some or all
of the liability for Domatti’s damages based on Lessley’s contract with SLLD
Transport, Guillory “dismissed it as unimportant.” They argued Guillory also failed
to “explore with Mr. and Mrs. Lessley the ramifications of his simultaneously
representing both Lessley and ACE in the Underlying Suit, including any potential
conflict of interest in such dual representation.”
Hallmark and Lessley argued Guillory was subject to personal jurisdiction in
Texas because Hallmark and Lessley’s claims arise out of or relate to Guillory’s
“purposeful contacts with Texas.” And because Guillory is Preis PLC’s agent, they
further argued Guillory’s contacts should be imputed to Preis PLC for purposes of
establishing jurisdiction over Preis PLC.
12
In support of their opposition to Guillory’s and Preis PLC’s special
appearances, Lessley and Hallmark submitted an affidavit from Vivian Lessley. In
her affidavit, Vivian Lessley stated that she and her husband Jimmy Lessley are the
principals of Lessley and that ACE retained Guillory and Preis PLC to defend
Lessley in the Louisiana Lawsuit. She stated that Guillory contacted her and her
husband to prepare them for their depositions in the Louisiana Lawsuit. Guillory
gave them the option of meeting at Lessley’s office in East Texas or at Preis PLC’s
Houston office. The Lessleys chose to meet with Guillory at Preis PLC’s Houston
office.
According to Vivian, the November 2020 meeting in Houston with Guillory
involved “perfunctory” preparation for her and her husband’s depositions in Lake
Charles, Louisiana, and discussion of other matters regarding the Louisiana Lawsuit.
Vivian stated that she and her husband told Guillory that “the plaintiffs’ property
was not suffering significant impact from any remaining crude oil,” but “Guillory
did not provide a substantive response to this point.” The Lessleys also discussed
with Guillory “the responsibility of Blaise St. Clair, the individual whose negligence
was directly responsible for the oil spill that led to the [Louisiana Lawsuit], and of
his employer SLLD Transport Company, LLC.” According to Vivian, she and her
husband discussed with Guillory their “belief that Mr. St. Clair and SLLD should
bear some if not all of the liability for the accident, including based on the contract
13
between Lessley Services and SLLD, which [the Lessleys] showed to Mr. Guillory
at the meeting.” The Lessleys also “explained that Blaise St. Clair was employed
by SLLD, not by Lessley, but Mr. Guillory did not care about this fact.” Vivian also
stated that Guillory did not “take the time to discuss” with her and her husband “the
details of the relationships among Mr. St. Clair, SLLD, and Lessley, dismissing them
as unimportant,” and he was “dismissive” of the Lessleys’ “entreaties about holding
Mr. St. Clair and SLLD at least partly responsible for the accident.” Vivian stated
that based on “Guillory’s dismissive responses and his other interactions” with her
and her husband during their Houston meeting,” she and her husband “concluded
Mr. Guillory was not working to advance the interests of Lessley Services” in the
Louisiana Lawsuit and they “immediately” contacted their insurance broker “to
request that ACE provide Lessley Services with different counsel.” According to
Vivian, Guillory did not “explore with [Lessley] the ramification of his
simultaneously representing both Lessley and ACE in the Underlying Suit, including
any potential conflict of interest in such dual representation.” She further stated that
“[n]either Mr. Guillory, Mr. Preis, nor other lawyers of Preis PLC ever consulted my
husband or me before agreeing to the Consent Judgment” or met with the Lessleys
again before trial.
14
After a non-evidentiary hearing, the trial court denied Guillory’s and Preis
PLC’s special appearance. Guillory and Preis appealed.5
B. ACE and Underwriters
During the pendency of this appeal, ACE and Underwriters also filed cross
claims against Guillory and Preis PLC.
1. Pleadings
In its Original Cross Claim against Guillory and Preis PLC, ACE asserted
claims for legal malpractice, indemnity, and contribution stemming from Preis
PLC’s and Guillory’s representation of ACE and Lessley in the Louisiana Lawsuit.
ACE alleged that Guillory and Preis PLC committed legal malpractice by:
(a) Failing to inform ACE once a clear conflict of interest arose after
entry of the Consent Judgment / Joint Stipulation.
(b) Entering into the Consent Judgment without ACE’s knowledge
or approval.
(c) Entering into the Joint Stipulation without ACE’s knowledge or
approval.
(d) Failing to properly prepare the ACE claim professional for his
deposition.
(e) Failing to timely file necessary motions.
(f) Failing to adequately prepare for trial.
5
Guillory and Preis PLC requested findings of fact and conclusions of law, but the
trial court did not issue findings of fact and conclusions of law.
15
(g) Generally, failing to adequately manage the defense in the
[Louisiana Lawsuit], including keeping ACE reasonably
informed.
(h) And other acts of negligence.
Relying on the trial court’s order denying Preis PLC’s and Guillory’s special
appearance, ACE alleged Guillory and Preis PLC were subject to specific
jurisdiction in Texas.
In its Original Cross Claim, Underwriters also asserted claims for legal
malpractice against Guillory and Preis PLC, alleging it was “equitably subrogated
to Lessley’s rights for malpractice claims against” Guillory and Preis PLC.6
According to Underwriters, Preis PLC and Guillory committed legal malpractice
because, among other things, Preis PLC and Guillory “provided erroneous legal
advice and/or failed to provide advice, opinions or relevant information when legally
obligated to do so thereby breaching their duties owed to Lessley.” Underwriters
alleged that Guillory and Preis PLC committed legal malpractice by:
(a) failing to provide notice to Lessley of [Preis PLC’s and
Guillory’s] conflict of interest in concurrently representing both
Lessley and ACE;
(b) representing the interests of ACE above Lessley’s interests in the
[Louisiana Lawsuit];
6
Underwriters also filed crossclaims against ACE under the doctrine of equitable
subrogation for ACE’s alleged failure “to properly investigate, defend, settle,
protect, and indemnify Lessley in good faith for the [Louisiana Lawsuit]” and for
breach of the Texas Insurance Code.
16
(c) entering into the Consent Judgment and Joint Stipulation without
providing any notice to Lessley or advising Lessley of the effect
of the same;
(d) failing to timely file necessary motions to limit Lessley’s
liability;
(e) improperly preparing for and managing Lessley’s defense in the
[Louisiana Lawsuit];
(f) failing to seek an apportionment of liability among ACE and
Lessley in the [Louisiana Lawsuit]; and
(g) failing to appeal the excessive judgment rendered in the
[Louisiana Lawsuit].
Like ACE, Underwriters relied on the trial court’s order denying Preis PLC’s and
Guillory’s special appearance to allege that Guillory and Preis PLC were subject to
specific jurisdiction in Texas.
2. Special Appearances
Guillory and Preis PLC filed their second Special Appearance in response to
ACE’s and the Underwriters’ cross claims. Guillory and Preis PLC raised the same
arguments they advanced in their first Special Appearance against Hallmark and
Lessley. The trial court denied Guillory and Preis PLC’s second Special
Appearance. Guillory and Preis PLC appealed from the denial of their second
special appearance. The two appeals were consolidated.
17
Specific Personal Jurisdiction
In their sole issue on appeal, Guillory and Preis PLC argue the trial court erred
in denying their special appearances because they are not subject to specific
jurisdiction in Texas.7
A. Personal Jurisdiction
A court may assert personal jurisdiction over a nonresident defendant only if
the Texas long-arm statute and due process requirements of the Fourteenth
Amendment to the United States Constitution are satisfied. See U.S. CONST. amend.
XIV, § 1; TEX. CIV. PRAC. & REM. CODE § 17.042 (Texas long-arm statute); LG
Chem Am., Inc. v. Morgan, 670 S.W.3d 341, 346 (Tex. 2023). The Texas long-arm
statute allows Texas courts to exercise personal jurisdiction over a nonresident
defendant who is doing “business in this state” and “commits a tort in whole or in
part in this state.” TEX. CIV. PRAC. & REM. CODE § 17.042(2). Due process is
satisfied when the nonresident defendant has established minimum contacts with the
7
A defendant’s contacts with a forum state can give rise to either general or specific
jurisdiction. See Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., ––– U.S. –
–––, 141 S. Ct. 1017, 1024 (2021); see also Daimler AG v. Bauman, 571 U.S. 117,
127 (2014). Appellees do not argue Guillory and Preis PLC are subject to general
jurisdiction in Texas. Daimler AG, 571 U.S. at 127 (“[C]ourt[s] may assert general
jurisdiction over [nonresident defendants] when [the defendant’s] affiliations with
the State are so ‘continuous and systematic’ as to render them essentially at home
in the forum State.”) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2011)). The only question before us is whether Appellees
established specific jurisdiction over Guillory and Preis PLC.
18
forum state and the exercise of jurisdiction over the nonresident defendant comports
with traditional notions of fair play and substantial justice. See LG Chem Am., Inc.,
670 S.W.3d at 346 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316–17
(1945)). A nonresident defendant’s minimum contacts with a forum are established
when the defendant “purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its
laws.” M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878,
886 (Tex. 2017) (quoting Moncrief Oil Intern. Inc. v. OAO Gazprom, 414 S.W.3d
142, 150 (Tex. 2013)); Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., –––
U.S. –––, 141 S. Ct. 1017, 1024–25 (2021); see also LG Chem Am., Inc., 670 S.W.3d
at 346–47.
The Texas Supreme Court has characterized the “purposeful availment”
requisite as the “touchstone of jurisdictional due process.” Michiana Easy Livin’
Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). There are three important
aspects of the purposefulavailment inquiry. Id. at 785. First, only the defendant’s
contacts with the forum state count. Id. This ensures that a defendant is not haled
into a jurisdiction solely by the unilateral activities of a third party. Id. Second, the
acts relied on must be purposeful; a defendant may not be haled into a jurisdiction
based solely on contacts that are “random, isolated, or fortuitous.” Id. Third, a
defendant “must seek some benefit, advantage, or profit by ‘availing’ itself of the
19
jurisdiction.” Id. By “invoking the benefits and protections of a forum’s laws, a
nonresident consents to suit there.” Id.
A defendant’s minimum contacts with a forum state can give rise to either
general or specific jurisdiction. Ford Motor Co., 141 S. Ct. at 1024. General
jurisdiction arises when a defendant’s contacts with the forum state are so continuous
and systematic that the defendant is “essentially at home,” whereas specific
jurisdiction exists when the claims involved in the litigation relate to or arise from
the nonresident defendant's contacts with the forum state. Id. Appellees do not
argue Guillory and Preis PLC are subject to general jurisdiction in Texas. Thus, the
only question before us is whether Appellees established specific personal
jurisdiction over Guillory and Preis PLC.
B. Specific Jurisdiction
Specific jurisdiction exists when the claims involved in the litigation relate to
or arise from the nonresident defendant’s contacts with the forum state. Ford Motor
Co., 141 S. Ct. at 1025; see LG Chem Am., Inc., 670 S.W.3d at 347. “This so-called
relatedness inquiry defines the appropriate ‘nexus between the nonresident
defendant, the litigation, and the forum.’” Luciano v. SprayFoamPolymers.com,
LLC, 625 S.W.3d 1, 14 (Tex. 2021) (quoting Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569, 579 (Tex. 2007)). The plaintiff must demonstrate a “substantial
connection” between the defendant’s contacts and the operative facts of the
20
litigation. LG Chem Am., 670 S.W.3d at 347 (citing Moki Mac, 221 S.W.3d at 585).
The “substantial connection” standard is primarily concerned with whether the
defendant’s contacts will be “the focus of the trial,” “consume most if not all of the
litigation’s attention,” and are “related to the operative facts” of the underlying
claim. See TV Azteca v. Ruiz, 490 S.W.3d 29, 53 (Tex. 2016) (quoting Moki Mac,
221 S.W.3d at 585). “Specific jurisdiction must be established on a claim-by-claim
basis unless all the asserted claims arise from the same forum contacts.” M & F
Worldwide Corp., 512 S.W.3d at 886.
C. Special Appearance
A nonresident defendant may challenge a Texas court’s exercise of personal
jurisdiction over it by filing a special appearance. TEX. R. CIV. P. 120a. The plaintiff
and the defendant bear shifting burdens of proof in a challenge to personal
jurisdiction. See LG Chem Am., Inc., 670 S.W.3d at 346; Kelly v. Gen. Interior
Constr., 301 S.W.3d 653, 658–59 (Tex. 2010). The plaintiff bears the initial burden
of pleading allegations sufficient to bring a nonresident defendant within the
provisions of the Texas long-arm statute. LG Chem Am., 670 S.W.3d at 346 (citing
Kelly, 301 S.W.3d at 658). If the plaintiff meets its initial burden, the burden shifts
to the nonresident defendant to negate the plaintiff’s alleged bases for jurisdiction.
Id. The defendant can negate personal jurisdiction on either a factual or legal basis.
Id. It can present evidence that contradicts the plaintiff’s factual allegations
21
supporting the assertion of personal jurisdiction, and the plaintiff can then respond
with its own evidence supporting its allegations. Id. Or the defendant can show that
even if the plaintiff’s alleged facts are true, the evidence is legally insufficient to
establish personal jurisdiction. Id.
Trial courts determine 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); see Touradji v. Beach Cap. P’ship, L.P., 316 S.W.3d 15, 23
(Tex. App.—Houston [1st Dist.] 2010, no pet.) (“The plaintiff’s original pleadings
as well as its response to the defendant's special appearance can be considered in
determining whether the plaintiff satisfied its burden.”). Whether a trial court has
personal jurisdiction over a nonresident defendant is a question of law we review de
novo. LG Chem Am., Inc., 670 S.W.3d at 346.
D. Analysis
The jurisdictional facts in this case are undisputed. Specifically, the parties
do not dispute:
• Guillory is a Louisiana resident who is licensed to practice law
in Texas.
• Guillory practices law from Preis PLC’s main office in Lafayette,
Louisiana.
• Preis PLC has an office in Houston, Texas.
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• ACE hired Preis PLC and Guillory to represent Lessley in the
Louisiana Lawsuit.
• On November 19, 2020, Guillory met with the Lessleys in Preis
PLC’s Houston office to prepare them for their depositions the
following day in Lake Charles, Louisiana.
• Guillory proposed meeting with the Lessleys at Preis PLC’s
Houston office or Lessley’s office in East Texas for the
convenience of the Lessleys who reside in Texas.
• The Lessleys chose to meet with Guillory in Preis PLC’s
Houston office, as opposed to its office in East Texas.
• In addition to preparing the Lessleys for their depositions,
Guillory also discussed with them the Louisiana Lawsuit during
the November 2020 meeting.
• During the November 2020 meeting, the Lessleys told Guillory
that “the plaintiffs’ property was not suffering significant impact
from any remaining crude oil,” and Guillory “did not provide a
substantive response to this point.”
• During the November 2020 meeting, the Lessleys told Guillory
the driver, St. Clair, and his employer, SLLD Transport
Company, LLC, “should bear some if not all of the liability for
the accident, including based on the contract between Lessley
Services and SLLD,” the Lessleys showed Guillory the contract
between Lessley and SLLD Transport Company, LLC, and they
“explained that Blaise St. Clair was employed by SLLD, not by
Lessley.”
• During the November 2020 meeting, Guillory did not discuss
with the Lessleys “the details of the relationships among Mr. St.
Clair, SLLD, and Lessley, dismissing them as unimportant.”
• During the November 2020 meeting, Guillory did not discuss
with the Lessleys “the ramifications of his simultaneously
representing both Lessley and ACE in the [Louisiana Lawsuit],
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including any potential conflict of interest in such dual
representation.”
• “Neither Mr. Guillory, Mr. [Edwin] Preis, nor other lawyers of
Preis PLC ever consulted my husband or me before agreeing to
the Consent Judgment.”
• Guillory did not solicit Lessley’s business.
• Guillory has never represented Lessley before a Texas court or
in a Texas legal proceeding.
• Guillory has never represented Lessley in any matter other than
the Louisiana Lawsuit.
• Guillory “performed no legal services on behalf of Lessley in or
from the State of Texas,” aside from the deposition preparation
meeting in Houston in November 2020.
• The legal work Guillory performed on Lessley’s behalf pertained
exclusively to the Louisiana Lawsuit.
• Guillory “did not give Lessley legal advice based on Texas law.”
Guillory and Preis PLC argue these alleged contacts do not support the trial court’s
exercise of specific jurisdiction over Guillory, and by implication, Preis PLC,
because Guillory did not avail himself of the privilege of practicing law in Texas
and there is not a substantial connection between Guillory’s Texas contacts and the
operative facts of Lessley’s legal malpractice claims.
1. Guillory’s Contacts with Texas
Lessley and Hallmark argue that Guillory purposefully availed himself of the
privilege of practicing law in Texas because Guillory is licensed to practice law in
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Texas, and he “provided face-to-face legal advice to his Texas-based client while
physically present in his firm’s Houston office, and Lessley is suing him based on
that advice (among other errors and omissions).”
Purposeful availment is the “touchstone of jurisdictional due process.”
Michiana Easy Livin’ Country, 168 S.W.3d at 784; see also State v. Volkswagen
Aktiengesellschaft, 669 S.W.3d 399, 413 (Tex. 2023). Courts employ three
guidelines when determining whether a nonresident defendant has availed himself
of the privilege of conducting activities in Texas: (1) we consider only the
nonresident defendant’s contacts with the forum, (2) the contacts must be purposeful
as opposed to “random, fortuitous, or attenuated,” and (3) the nonresident defendant
must have sought “some benefit, advantage[,] or profit by availing itself of [Texas’]
jurisdiction,” thus, consenting to suit in Texas. See Volkswagen, 669 S.W.3d at 413
(quoting Moncrief Oil Int’l Inc., 414 S.W.3d at 151).
The fact that Lessley, Guillory’s client, has its principal place of business in
Texas is not relevant with respect to whether Guillory purposefully availed himself
of the privilege of practicing law in Texas because the focus of the purposeful
availment analysis is on Guillory’s contacts with Texas, not Lessley’s contacts. See
Volkswagen, 669 S.W.3d at 413 (stating defendant’s contacts with forum are only
relevant contacts with respect to purposeful availment); see generally Walden v.
Fiore, 571 U.S. 277, 285 (2014) (stating minimum contacts “looks to the defendant’s
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contacts with the forum State itself, not the defendant’s contacts with persons who
reside there”). We further note that while Lessley is located in Texas, it is undisputed
that Guillory did not solicit Lessley’s business in Texas. Rather, ACE hired Preis
PLC and Guillory to represent Lessley in the Louisiana Lawsuit.
Similarly, Preis PLC’s decision to maintain a satellite office in Houston,
Texas is irrelevant with respect to our purposeful availment analysis because we may
consider only Guillory’s contacts with Texas, not his law firm’s contacts. See
Volkswagen, 669 S.W.3d at 413 (stating defendant’s contacts with forum are only
relevant contacts with respect to purposeful availment). Moreover, while Preis PLC
has an office in Houston, Texas, the parties do not dispute that Guillory practices out
of the law firm’s Lafayette, Louisiana office and it is undisputed that Guillory was
not practicing Texas law or advising Lessley regarding Texas law when he met with
the Lessleys in Houston in November 2020. Thus, Guillory’s only Texas contacts
relevant to our specific jurisdiction inquiry are his physical presence in Texas in
November 2020 to prepare the Lessleys for their deposition in Louisiana, and the
fact he is licensed to practice law in Texas. See Volkswagen, 669 S.W.3d at 413.
Even assuming Guillory’s limited contacts were “purposeful rather than
random, fortuitous, isolated, or attenuated” and that Guillory sought some “benefit,
advantage, or profit” by availing himself of the privileges and benefits of Texas’
jurisdiction, Texas may exercise specific jurisdiction over Guillory only if Lessley’s
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legal malpractice claims relate to or arise from the Guillory’s contacts with Texas.
See Ford Motor Co., 141 S. Ct. at 1025; LG Chem Am., 670 S.W.3d at 347. We
conclude they do not.
2. Substantial Connection
Specific jurisdiction exists when the claims involved in the litigation relate to
or arise from the nonresident defendant’s contacts with the forum state. See Ford
Motor Co., 141 S. Ct. at 1025; LG Chem Am., 670 S.W.3d at 347. In other words,
there must be a “substantial connection” between Guillory’s Texas contacts and the
operative facts of the litigation. LG Chem Am., 670 S.W.3d at 347 (citing Moki Mac,
221 S.W.3d at 585). The “substantial connection” standard is primarily concerned
with whether the defendant’s contacts will be “the focus of the trial,” “consume most
if not all of the litigation’s attention,” and are “related to the operative facts” of the
underlying claim. See TV Azteca, 490 S.W.3d at 53 (quoting Moki Mac, 221 S.W.3d
at 585).
(a) Lessley’s and Hallmark’s Legal Malpractice Claims
The acts and omissions upon which Lessley’s legal malpractice claims against
Guillory are based, and Hallmark’s corresponding subrogation claim, span the
course of Guillory’s yearlong representation of Lessley in the Louisiana Lawsuit,
and encompass far more than what allegedly transpired at Guillory’s one-day
meeting with the Lessleys in Houston, Texas in November 2020.
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Lessley alleged in its pleading that Guillory committed legal malpractice by
“provid[ing] erroneous legal advice and/or fail[ing] to provide advice, opinions or
relevant information.” Specifically, Lessley alleged Guillory committed legal
malpractice through the following seven acts or omissions:
(a) failing to provide notice to Lessley of [Guillory’s and Preis
PLC’s] conflict of interest in representing both Lessley and Ace;
(b) representing the interests of Ace above Lessley in the underlying
lawsuit;
(c) entering into the Consent Judgment and Joint Stipulation without
providing any notice to Lessley or advising Lessley of the effect
of the same;
(d) failing to timely file necessary motions to limit Lessley’s
liability;
(e) improperly preparing for and managing Lessley’s defense in the
underlying lawsuit;
(f) falling to seek an apportionment of liability among Ace and
Lessley in the underlying lawsuit; and
(g) failing to appeal the judgment.
Lessley also alleged that Guillory attended the deposition of ACE’s corporate
representative in Chicago, Illinois on behalf of ACE, not Lessley, and Guillory “did
not ask any questions or inquire as to how Ace’s actions negatively affected Lessley”
during the April 2021 deposition. In addition to agreeing to “a verdict form that
placed responsibility for any verdict sums on all defendants rather than obtain a form
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that apportioned fault between the defendants,” Guillory also failed to exclude
evidence detrimental to Lessley at the May 2021 trial in Louisiana.
In its pleading, Hallmark asserted a legal malpractice claim against Guillory
and Preis PLC under the doctrine of equitable subrogation. Hallmark alleged
Guillory committed legal malpractice by jointly defending Lessley and ACE in the
Louisiana Lawsuit despite a conflict of interest, failing to “adequately prepare for
trial,” failing to “file motions to limit Lessley’s liability,” and “most egregiously,
entering into the Consent Judgment and Joint Stipulation.”
Many of Guillory’s alleged acts and omissions constituting legal malpractice
occurred after the November 2020 meeting in Houston, including (1) entering into
the Consent Judgment in April 2021 without notifying Lessley, (2) entering into the
Joint Stipulation in May 2021 without notifying Lessley, (3) attending the April
2021 deposition of ACE’s corporate representative in Chicago, Illinois on behalf of
ACE and leaving Lessley without representation at the deposition, (4) failing to
exclude evidence detrimental to Lessley during the May 2021 trial in Louisiana,
(5) agreeing to a verdict form that did not apportion fault between the defendants,
including ACE and Lessley, and (6) failing to appeal the final judgment in the
Louisiana Lawsuit. Except for the deposition of ACE’s corporate representative,
which occurred in Chicago, Illinois, all of these acts and omission, as well as
Guillory’s failure to timely file necessary motions to limit Lessley’s liability,
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occurred in Lafayette, Louisiana where Guillory practices law, or in Cameron Parish,
Louisiana where the Louisiana Lawsuit was tried to a jury. None of the acts or
omissions bear any significant relation to the November 2020 meeting in Houston,
Texas.
Lessley and Hallmark argue that the legal malpractice claims against Guillory
are substantially connected with the November 2020 meeting in Houston because
during the meeting (1) Guillory failed to inform the Lessleys of the ramifications of
his representation of both Lessley and ACE in the Louisiana Lawsuit, including any
potential conflict of interest, (2) Guillory placed ACE’s interests above Lessley’s
interests in the Louisiana Lawsuit, and (3) Guillory improperly prepared and
managed Lessley’s defense in the Louisiana Lawsuit by, among other things,
insufficiently preparing the Lessleys for their depositions the day after the meeting.
These are the only acts and omissions Lessley and Hallmark argue occurred during
the November 2020 meeting.
Aside from the claim Guillory failed to prepare the Lessleys for their
depositions adequately, none of these alleged acts or omissions are exclusive to the
November 2020 meeting. Even if Guillory failed to inform the Lessleys of the risks
associated with his dual representation of Lessley and ACE at the meeting,
Guillory’s ongoing obligation to do so arose when ACE retained Guillory to
represent ACE in the Louisiana Lawsuit prior to the November 2020 meeting, and
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his obligation continued thereafter. Similarly, Guillory’s alleged deficient
preparation and management of Lessley’s defense, and his prioritizing of ACE’s
interests over Lessley’s interests in the Louisiana Lawsuit also occurred before and
after the Houston meeting. While one instance of these three acts or omissions
allegedly occurred during the meeting, the bulk of these acts or omissions would
have primarily occurred in Lafayette, Louisiana where Guillory practices law and in
Cameron Parish, Louisiana where the Louisiana Lawsuit was tried to a jury.
Thus, the overwhelming majority of the events giving rise to Lessley’s legal
malpractice claims and Hallmark’s corresponding subrogation claim based on the
same alleged contacts bear little significant relation to the November 2020 meeting
in Houston. This includes the two acts Hallmark contends were Guillory’s most
egregious: entering into the Consent Judgment and Joint Stipulation without
notifying Lessley and obtaining Lessley’s consent. Furthermore, it is undisputed
that Guillory “did not give Lessley legal advice based on Texas law” at any time
during the course of Guillory’s representation of Lessley, including during the
November 2020 meeting, and none of the operative facts of the legal malpractice
claims involve Guillory’s use of his Texas law license.
Guillory’s only contacts with Texas—his Texas law license and the
November 2020 Houston meeting where he allegedly committed some acts and
omissions underlying Lessley’s legal malpractice claims and Hallmark’s
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subrogation claim—will not be “the focus of the trial” on these legal claims, nor will
they “consume most if not all of the litigation’s attention.” There is thus no
“substantial connection between [Guillory’s] contacts [with Texas] and the operative
facts of the litigation.” TV Azteca, 490 S.W.3d at 52 (quoting Moki Mac, 221 S.W.3d
at 585); see also Volkswagen, 669 S.W.3d at 413 (holding specific jurisdiction
involves “claim-by-claim” analysis focusing on “the relationship between the
defendant, the forum state, and the operative facts of the litigation”).8
Because Guillory’s purposeful contacts with Texas are not substantially
connected to the operative facts of Lessley’s legal malpractice claims and
Hallmark’s corresponding subrogation claim—and the trial court’s jurisdiction over
Preis PLC is dependent upon the trial court having personal jurisdiction over
Guillory—the trial court erred in denying Guillory’s and Preis PLC’s first special
appearances, as set forth in the trial court’s February 1, 2022 order.
8
The nonresident defendant’s contacts with the forum must also be “related to the
operative facts” of the underlying claim. See TV Azteca v. Ruiz, 490 S.W.3d 29, 53
(Tex. 2016) (quoting Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585
(Tex. 2007)). While the November 2020 Houston meeting is “related to operative
facts” because some of Guillory’s acts and omissions allegedly occurred during the
meeting, this factor alone does not establish a substantial connection between
Guillory’s contacts and the malpractice claims against him because Guillory’s
contacts are neither “the focus of the trial” on Lessley’s, Hallmark’s, and
Underwriters’ legal malpractice claims, nor will they “consume most if not all of
the litigation’s attention.”
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(b) ACE’s and Underwriters’ Legal Malpractice Claims
Underwriters and ACE relied on the trial court’s February 1, 2022 order
denying Preis PLC’s and Guillory’s first special appearance with respect to
Lessley’s and Hallmark’s claims to allege that Guillory and Preis PLC were subject
to specific jurisdiction in Texas. Because the trial court erred by denying Preis
PLC’s and Guillory’s first special appearance, Preis PLC and Guillory have likewise
met their burden to negate Underwriters’ and ACE’s alleged bases for personal
jurisdiction. LG Chem Am., 670 S.W.3d at 346 (citing Kelly, 301 S.W.3d at 658).
Because Preis PLC and Guillory negated Underwriters’ and ACE’s alleged bases for
jurisdiction, the trial court erred by denying Guillory’s and Preis PLC’s second
special appearance with respect to Underwriters’ and ACE’s legal malpractice
claims as set forth in the trial court’s April 8, 2022 order.
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Conclusion
We reverse the trial court’s February 1, 2022 order denying Guillory’s and
Preis PLC’s special appearances and we render judgment dismissing Hallmark’s and
Lessley’s claims against Guillory and Preis PLC. We also reverse the trial court’s
April 8, 2022 order denying Guillory’s and Preis PLC’s special appearances and we
render judgment dismissing Underwriters’ and ACE’s claims against Guillory and
Preis PLC.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
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