Don A. Mitchell v. Freese & Goss, PLLC, Richard A. Freese, Tim K. Goss, Shelia M. Bossier, Dennis C. Sweet, and Sweet & Freese, PLLC.

REVERSE and RENDER; and Opinion Filed July 15, 2016.
Court of Appeals
S
In The
Fifth District of Texas at Dallas
No. 05-15-00868-CV
DON A. MITCHELL, Appellant
V.
FREESE & GOSS, PLLC, RICHARD A. FREESE, TIM K. GOSS, SHELIA M. BOSSIER,
DENNIS C. SWEET, AND SWEET & FREESE, PLLC, Appellees
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-08251
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and O'Neill 1
Opinion by Justice Fillmore
In a single issue, appellant Don A. Mitchell appeals the trial court’s order denying his
special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West Supp. 2015);
TEX. R. APP. P. 28.1. Because we conclude the trial court erred by denying Mitchell’s special
appearance, we reverse the trial court’s order denying Mitchell’s special appearance and render
judgment dismissing the claims of appellees Freese & Goss, PLLC, Richard A. Freese, Tim K.
Goss, Sheila M. Bossier, Dennis C. Sweet, and Sweet & Freese, PLLC against Mitchell for lack
of personal jurisdiction.
1
The Honorable Michael J. O'Neill, Justice, Assigned.
Background 2
In 2005, Mitchell, a Mississippi attorney, began representing current and former residents
of Copiah County, Mississippi, who claimed to have been injured by improper disposal of
polychlorinated biphenyls (PCBs) at a Crystal Springs, Mississippi, manufacturing facility (PCB
claimants). In February 2006, Mitchell entered into a Joint Venture and Representation
Agreement (JVRA) with appellee Sweet & Freese, PLLC (S&F), a Mississippi law firm
organized as a limited liability company, for legal representation of PCB claimants, and suit was
filed in Mississippi (the PCB litigation) asserting claims on behalf of 348 PCB claimants (the
Filed Clients). 3 Sometime after execution of the JVRA, the principals in S&F—appellees
Dennis C. Sweet (Sweet), a Mississippi attorney, and Richard A. Freese (Freese), a Florida
attorney—ended their business relationship. In April 2007, Freese and Tim K. Goss (Goss), a
Texas attorney, formed appellee Freese & Goss, PLLC (F&G), a law firm organized as a Texas
professional limited liability company. Freese, Goss, and appellee Sheila M. Bossier (Bossier), a
Mississippi attorney, comprise three of the four members of F&G.
F&G assumed the role of lead counsel for PCB claimants in the PCB litigation,
representing over 3,300 PCB claimants by the spring of 2008. Representation of approximately
3,000 of those PCB claimants eventually was terminated (Unfiled Clients). In connection with
settlement negotiations, Borg-Warner Corporation, a defendant in the PCB litigation, indicated
that, in addition to the 348 Filed Clients who were plaintiffs in PCB litigation, it desired to settle
the potential PCB claims of the Unfiled Clients. Mitchell and F&G undertook re-signing Unfiled
Clients as clients and representing those clients as co-counsel; each re-signed Unfiled Client or
PCB claimant signed in this phase of the PCB litigation by Mitchell and F&G executed a legal
2
The facts are taken from the parties’ pleadings and evidence relating to the special appearance.
3
Of the 348 Filed Clients, Mitchell had been retained as counsel by 280.
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representation agreement to which Mitchell, F&G, and the client were parties (the Retainer
Agreement).
After settlements were reached with defendants in the PCB litigation, a dispute arose
between Mitchell and appellees over attorney’s fees and allocation and reimbursement of
litigation expenses arising out of their joint representation of the PCB claimants. This dispute
resulted in litigation in Mississippi filed by Mitchell against appellees. Lawsuits were also filed
in Mississippi state and federal courts by some of the PCB clients against appellees alleging
wrongful conduct in connection with PCB settlements.
In the Dallas County, Texas, lawsuit underlying this appeal, appellees sued Mitchell, 4
seeking a declaratory judgment and damages for breach of fiduciary duty. Appellees seek a
declaratory judgment that Mitchell engaged in wrongful conduct that adversely and materially
affected his joint ventures with S&F and F&G, those joint ventures are dissolved due to
Mitchell’s breaches of the duties owed to the joint ventures, the PCB clients of the joint ventures
will be represented by F&G, and Mitchell is no longer owed a share of attorney’s fees earned by
the joint ventures and is required to return attorney’s fees received from the joint ventures. 5
Appellees S&F and F&G allege Mitchell breached his fiduciary duty to the joint ventures with
S&F and F&G by: contacting clients of the joint ventures and misrepresenting to them that their
PCB cases had been mishandled by the joint venture partners; misrepresenting to PCB clients of
the joint ventures that they were due additional sums from settlements with Borg-Warner;
obstructing and delaying the distribution of settlement proceeds to PCB clients of the joint
ventures by inserting himself in PCB clients’ bankruptcy and estate proceedings; making
4
Appellees also sued Charles McRae and his former associate, Greta Lynette Kemp. Mitchell is represented by attorney Charles McRae in
Mississippi litigation between Mitchell and appellees. McRae’s special appearance was granted by the trial court.
5
It is undisputed there is no written agreement between Mitchell and F&G. The record contains Mitchell’s deposition testimony that Goss
became a member of the Joint Venture of Mitchell and S&F “since [F&G] took over the [PCB] litigation.”
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misrepresentations to third parties, including bankruptcy trustees and judges, which caused
confusion and delay in the distribution of certain PCB clients’ settlement funds; and
misrepresenting to the Mississippi state bar that appellees had engaged in unethical conduct.
Mitchell filed a special appearance contesting personal jurisdiction over him. The trial
court denied Mitchell’s special appearance, and he filed this interlocutory appeal of that order.
Denial of Special Appearance
In one issue, Mitchell asserts the trial court erred by denying his special appearance and
subjecting him to personal jurisdiction in Texas because he negated all possible grounds for
personal jurisdiction.
Standard of Review
The question of whether a court has personal jurisdiction over a nonresident defendant is
a question of law we review de novo. Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d
142, 150 (Tex. 2013) (citing Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007)). “When, as here, the trial court does not issue findings of fact and conclusions of law, we
imply all relevant facts necessary to support the judgment that are supported by evidence.” Id.(citing Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009)).
Applicable Law
Texas courts may exercise personal jurisdiction over a nonresident if “(1) the Texas long-
arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is
consistent with federal and state constitutional due-process guarantees.” Id. at 149 (quoting
Moki Mac, 221 S.W.3d at 574). The Texas long-arm statute provides in part that “[i]n addition
to other acts that may constitute doing business, a nonresident does business in this state if the
nonresident: (1) contracts by mail or otherwise with a Texas resident and either party is to
perform the contract in whole or in part in this state.” TEX. CIV. PRAC. & REM. CODE ANN. §
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17.042(1) (West 2015). “The broad ‘doing business’ language in Texas’s long-arm statute
allows the trial court’s jurisdiction to ‘reach as far as the federal constitutional requirements of
due process will allow.’” Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex. 2010)
(quoting Moki Mac, 221 S.W.3d at 575). Personal jurisdiction is consistent with due process
“when the nonresident defendant has established minimum contacts with the forum state and the
exercise of jurisdiction comports with traditional notions of fair play and substantial justice.” Id.
(quoting Moki Mac, 221 S.W.3d at 575).
“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.” Id. at 657–58 (quoting Retamco, 278 S.W.3d at 338–39). When
determining whether a nonresident purposefully availed itself of the privilege of conducting
activities in Texas, we consider three factors: only the defendant’s contacts with the forum are
relevant, not the unilateral activity of another party or a third person; the contacts relied upon
must be purposeful rather than random, fortuitous, or attenuated; and, the defendant must seek
some benefit, advantage or profit by availing itself of the jurisdiction. Moncrief Oil, 414 S.W.3d
at 151 (quoting Retamco, 278 S.W.3d at 338–39). This analysis assesses the quality and nature
of the contacts, not the quantity. Id. Physical presence in the state is not required but
“frequently will enhance a potential defendant’s affiliation with a State and reinforce the
reasonable foreseeability of suit there.” Id. at 152 (quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476 (1985)). “At its core, the purposeful availment analysis seeks to determine
whether a nonresident’s conduct and connection to a forum are such that it could reasonably
anticipate being haled into court there.” Id.A nonresident’s contacts can give rise to general or specific personal jurisdiction. Id. at
150. Appellees’ asserted basis for personal jurisdiction over Mitchell is specific jurisdiction
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only. 6 When specific jurisdiction is alleged, we focus on the relationship among the defendant,
the forum, and the litigation. Id. Specific jurisdiction exists only if the alleged liability arises
out of or is related to the defendant’s activity within the forum. Id. 150, 156. “[F]or a
nonresident defendant’s forum contacts to support an exercise of specific jurisdiction, there must
be a substantial connection between those contacts and the operative facts of the litigation.” Id.
at 156 (quoting Moki Mac, 221 S.W.3d at 585). “[B]ut-for causation alone is insufficient.” Id. at
157. “The operative facts are those on which the trial will focus to prove the liability of the
defendant who is challenging jurisdiction.” Leonard v. Salinas Concrete, LP, 470 S.W.3d 178,
188 (Tex. App.—Dallas 2015, no pet.) (quoting Kaye/Bassman Int’l Corp. v. Dhanuka, 418
S.W.3d 352, 357 (Tex. App.—Dallas 2013, no pet.)). We analyze specific jurisdiction on a
claim-by-claim basis, unless we are shown that all claims arise from the same contacts with
Texas. Moncrief Oil, 414 S.W.3d at 150–51.
In addition to minimum contacts, due process requires the exercise of personal
jurisdiction to comply with traditional notions of fair play and substantial justice. Id. at 154
(citing Retamco, 278 S.W.3d at 338). “If a nonresident has minimum contacts with the forum,
rarely will the exercise of jurisdiction over the nonresident not comport with traditional notions
of fair play and substantial justice.” Id. at 154–55. This evaluation is undertaken in light of the
following factors, when appropriate:
(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.
Retamco, 278 S.W.3d at 341.
6
Although appellees pleaded both general and specific personal jurisdiction over Mitchell, appellees’ counsel confirmed at oral submission
of this appeal that appellees’ asserted basis for personal jurisdiction over Mitchell is specific jurisdiction only.
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“Our special appearance jurisprudence dictates that the plaintiff and the defendant bear
shifting burdens of proof in a challenge to personal jurisdiction.” Kelly, 301 S.W.3d at 658; see
also TEX. R. CIV. P. 120a. The plaintiff bears the initial burden to plead allegations sufficient to
bring the nonresident defendant within the reach of Texas’s long-arm statute. Kelly, 301 S.W.3d
at 658. “Once the plaintiff has pleaded sufficient jurisdictional allegations, the defendant filing a
special appearance bears the burden to negate all bases of personal jurisdiction alleged by the
plaintiff.” Id. The defendant can negate jurisdiction on either a factual or legal basis. Id. at 659.
A defendant negates jurisdiction on a factual basis by presenting evidence to disprove the
plaintiff’s jurisdictional allegations. Id. “The plaintiff can then respond with its own evidence
that affirms its allegations, and it risks dismissal of its lawsuit if it cannot present the trial court
with evidence establishing personal jurisdiction.” Id. A defendant negates jurisdiction on a legal
basis by showing that “even if the plaintiff’s alleged facts are true, the evidence is legally
insufficient to establish jurisdiction; the defendant’s contacts with Texas fall short of purposeful
availment; for specific jurisdiction, that the claims do not arise from the contacts; or that
traditional notions of fair play and substantial justice are offended by the exercise of
jurisdiction.” Id.
Application of Law to Facts
Appellees pleaded that Mitchell is subject to specific personal jurisdiction in Texas
because “this dispute arose out of [Mitchell’s] contacts with Texas.” See Moncrief Oil, 414
S.W.3d at 150–51. With regard to Mitchell’s purported contacts with Texas, appellees pleaded:
Mitchell maintains a business relationship with F&G, a Texas firm, for purposes of litigating
PCB claims underlying this lawsuit; Mitchell participated in meetings and telephone calls with
F&G; the attorney’s fee dispute that underlies this action is “centered on” payments made or
claimed to be owed to Mitchell by F&G; “key events in this action occurred in Texas”; Mitchell
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solicited or conspired to solicit F&G’s Texas PCB clients to file lawsuits against appellees; and
those acts were specifically directed toward causing injury to appellees in Texas. In support of
his special appearance, Mitchell contends: he did not purposefully direct any activities to Texas;
appellees’ claims against him do not arise from or relate to any activity he conducted within
Texas; the alleged acts on which appellees’ claims are based occurred in Mississippi; none of his
limited contacts with Texas in connection with the underlying PCB litigation were for the
purpose of doing business in Texas; and assumption of jurisdiction by Texas over him would
offend traditional notions of fair play and substantial justice.
Co-Counsel Relationship with F&G
Appellees assert Mitchell sought to avail himself of the benefits of his co-counsel
business relationship with F&G, a Texas law firm, for the purpose of representing PCB claimants
in Mississippi and is, therefore, subject to personal jurisdiction in Texas with respect to claims
against him that arise from that business relationship. Appellees argue that although the purpose
of the co-counsel business relationship was to represent PCB claimants in Mississippi, many of
the “key events” related to the administration of the settlements of PCB clients’ claims (for
example, allocating settlement amounts, expenses, and costs, distribution of settlement funds,
and obtaining releases) were performed by F&G in Texas, and Mitchell benefitted from that
work.
The record reflects that, although Mitchell and F&G acted as co-counsel in the
representation of PCB claimants in the PCB litigation and settlement of PCB claims, no part of
this joint representation was performed by Mitchell in Texas. Mitchell’s activities with regard to
the representation of PCB claimants occurred in Mississippi and outside of Texas, and he never
came to Texas in conjunction with his co-counsel business relationship with F&G. While
appellees assert Mitchell had contacts with Texas through participation in meetings and
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telephone calls with F&G concerning the PCB litigation, evidence establishes that, to the extent
Mitchell had any communications with anyone in F&G’s Texas office, those communications
took place while Mitchell was outside Texas. Mitchell had only one telephone conversation with
Goss, and that conversation was initiated by Goss. Mitchell met Goss once in Chicago during a
mediation of the PCB litigation. Mitchell never sent letter or email correspondence to Goss and
does not recall receiving any letter or email correspondence from Goss.
Merely contracting with a Texas entity is insufficient to constitute purposeful availment
for jurisdictional purposes, especially when the contractual obligations are performed outside the
forum state. See Ahrens & DeAngeli, P.L.L.C. v. Flinn, 318 S.W.3d 474, 485 (Tex. App.—
Dallas 2010, pet. denied). The co-counsel business relationship did not focus on activity in
Texas, but rather the representation in litigation or settlement of PCB claims in Mississippi, and
it is Mitchell’s contacts with the forum that are relevant in this jurisdictional analysis, not the
unilateral activity of F&G conducted in F&G’s Texas office. See Moncrief Oil, 414 S.W.3d at
151; see also Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325, 334 (Tex. App.—Fort Worth
2009, no pet.) (concluding there was no basis in the record for imputing Texas co-counsel’s legal
services in Texas as a purposeful contact with Texas by nonresident co-counsel); Eakin v.
Acosta, 21 S.W.3d 405, 407, 410–11 (Tex. App.—San Antonio 2000, no pet.), abrogated in part
on other grounds by BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 n.1 (Tex.
2002) (in suit over fees brought in Texas, jurisdiction based on joint venture agreement between
lawyers was rejected; Florida lawyer represented a Texas resident in lawsuit filed in Florida and
Texas law firm acted as consulting counsel; Florida lawyer performed all the work on behalf of
client in Florida).
Appellees also argue the attorney’s fee dispute that underlies this action is “centered on”
payments made, or claimed to be owed, to Mitchell by F&G. The record contains a check to
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Mitchell from F&G drawn from an F&G bank account in Dallas, Texas, with a “memo” notation
“PCB Settlement Check.” However, a check drawn on F&G’s Dallas, Texas, bank account to
Mitchell in Mississippi is not an act by Mitchell, and does not create personal jurisdiction over
Mitchell. See Myers v. Emery, 697 S.W.2d 26, 32 (Tex. App.—Dallas 1985, no writ) (among
others, fact that checks to Oklahoma law firm were drawn on Dallas, Texas, bank, remitted from
Dallas through the United States mail, and accepted by the Oklahoma law firm did not create
personal jurisdiction); Proskauer Rose LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009
WL 242993, at *4 (Tex. App.—Houston [14th Dist.] Feb. 3, 2009, no pet.) (mem. op.) (check
drawn on Pelican’s Texas bank did not qualify as a “purposeful” contact because it was Pelican’s
action, not Proskauer Rose’s); see also Michiana Easy Livin’ Country, Inc. v. Holten, 168
S.W.3d 777, 785 (Tex. 2005) (only the defendant’s contacts with the forum are relevant, not the
unilateral activity of another party or a third person).
For these reasons, Mitchell did not purposefully avail himself of the privilege of
conducting business in Texas by virtue of his co-counsel business relationship with F&G.
Mitchell’s co-counsel relationship with F&G did not give rise to minimum contacts with Texas
and Mitchell is not subject to personal jurisdiction in Texas on that basis. See Gordon &
Donner, P.A., 287 S.W.3d at 334; Myers, 697 S.W.2d at 32.
Texas Resident PCB Clients
In support of their contention that Mitchell is subject to specific personal jurisdiction in
Texas, appellees also rely on Mitchell’s legal representation of certain PCB claimants in the PCB
litigation who, at some point after residing in Copiah County, Mississippi, had become residents
of Texas. Appellees contend that Mitchell undertook representation in the PCB litigation of
certain PCB claimants who reside in Texas, and the JVRA or Retainer Agreement for legal
representation is performable at least in part in Texas because the Texas clients’ obligations and
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responsibilities pursuant to those contracts are performable in Texas. See TEX. CIV. PRAC. &
REM. CODE ANN. § 17.042(1) (nonresident is doing business in Texas if nonresident contracts by
mail or otherwise with Texas resident and either party is to perform the contract, in whole or in
part, in Texas).
However, “[i]n the case of nonresident-defendant lawyers, the ‘mere existence of an
attorney-client relationship unaccompanied by other sufficient contacts with the forum, does not
confer personal jurisdiction over the non-resident in the forum state; more is required.’” Ahrens
& DeAngeli, P.L.L.C., 318 S.W.3d at 484 (quoting Klenk v. Bustamante, 993 S.W.2d 677, 682
(Tex. App.—San Antonio 1998, no pet.)). “Merely contracting with a Texas resident is
insufficient to establish the minimum contacts necessary to support the exercise of specific
personal jurisdiction over the nonresident defendant.” Gordon & Doner, P.A., 287 S.W.3d at
332. “[N]either the mere existence of an attorney-client relationship between a resident client
and an out-of-state attorney nor the routine correspondence and interactions attendant to that
relationship are sufficient to confer personal jurisdiction.” Markette v. X-Ray X-Press Corp., 240
S.W.3d 464, 468 n.2 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see Bergenholtz v.
Cannata, 200 S.W.3d 287, 295–97 (Tex. App.—Dallas 2006, no pet.); Myers, 697 S.W.2d at 32;
Geo-Chevron Ortiz Ranch #2 v. Woodworth, No. 04-06-00412-CV, 2007 WL 671340, at *3
(Tex. App.—San Antonio Mar. 7, 2007, pet. denied) (mem. op.) (merely representing clients
who live in forum state does not supply sufficient contacts to bring out-of-state attorneys within
Texas’s jurisdiction); see also Olympia Capital Assocs., L.P. v. Jackson, 247 S.W.3d 399, 418
(Tex. App.—Dallas 2008, no pet.) (mere existence of contract between nonresident and a Texas
resident, including communications related to the execution and performance of that contract,
insufficient to support specific jurisdiction).
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In his dispute with appellees over attorney’s fees and allocation and reimbursement of
litigation expenses arising out of representation of the PCB claimants, Mitchell is seeking fees
for his representation of PCB claimants pursuant to the JVRA and Retainer Agreements,
including PCB clients who reside in Texas. Mitchell was aware prior to the time of his dispute
with appellees over attorney’s fees and allocation and reimbursement of litigation expenses that
one or more of the PCB clients resided outside Mississippi. Mitchell acknowledged that when he
and F&G were endeavoring to re-sign Unfiled Clients, he had personal communication with
potential clients and that he was “manning the phones” and “calling people” in that undertaking.
However, he stated he did not actively undertake representing PCB claimants who resided
outside Mississippi and he did not authorize anyone to travel outside of Mississippi to speak with
potential PCB claimants. Bossier testified in a deposition that she was aware Mitchell never
came to Texas in connection with the PCB litigation and she had no personal knowledge of
Mitchell making telephone calls or sending correspondence to anyone in Texas in an effort to
sign or re-sign PCB claimants as clients in the PCB litigation. Further, there is no allegation
Mitchell undertook performance under the JVRA or Retainer Agreements in Texas or that his
performance was due in Texas, and as is discussed above, Mitchell’s acts with regard to
representation of PCB clients took place in Mississippi and outside of Texas.
For these reasons, Mitchell did not purposefully avail himself of the privilege of
conducting business in Texas by virtue of his joint representation of clients in the PCB litigation
who became residents of Texas. Mitchell’s joint representation of certain clients in the PCB
litigation who became residents of Texas did not give rise to minimum contacts with Texas and
Mitchell is not subject to personal jurisdiction in Texas on that basis. See Ahrens & DeAngeli,
P.L.L.C., 318 S.W.3d at 484.
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Solicitation of Clients to File Lawsuits Against Appellees
S&F and F&G contend Mitchell solicited or conspired with his co-defendant attorneys,
Charles McRae and Greta Lynette Kemp, and another attorney, Doug Wade, to solicit F&G’s
PCB clients, some of whom reside in Texas, to file lawsuits against appellees and thereby
tortiously interfered with F&G’s Retainer Agreements with those PCB clients. 7 S&F and F&G
allege Mitchell breached his fiduciary duty to them as co-counsel in the representation of PCB
clients by misrepresenting to PCB clients that their claims had been mishandled by partners in
S&F and F&G. In response to Mitchell’s special appearance, S&F and F&G asserted Mitchell
induced PCB clients of S&F and F&G to “turn against their lawyers” in order to advance his
attorney’s fee dispute with appellees, “thereby breaching his fiduciary duty.” Appellees argued
that Mitchell’s alleged breach of fiduciary duty “occurred in Texas” because his actions were
“directed towards Texas” and “the recipient of the harm was [F&G], as well as the Texas-based
PCB Clients.” Appellees acknowledged in their response to Mitchell’s special appearance that
“a tort alone is insufficient to confer jurisdiction,” but argue that “Mitchell’s tortious conduct,
combined with his other contacts, does confer jurisdiction.” See Lisitsa v. Flit, 419 S.W.3d 672,
680 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (allegation of wrongdoing by fiduciary
against Texas resident is not, by itself, enough to support specific jurisdiction).
7
Appellees pleaded that “upon information and belief,” Mitchell “facilitated phone solicitations, meetings, and other contacts between the
joint venture’s individual clients and McRae,” and McRae, Mitchell, and Kemp “then made misrepresentations to induce the clients to “turn
against their lawyers.” Appellees rely on a Declaration of Bossier in which she states, “While he denies it, I have reason to believe that [McRae]
was working with [Wade] to solicit the PCB clients,” and “[b]ased on a review of the pleadings [McRae] has filed and review of our internal
client records, [McRae] is representing numerous Texas residents in the various cases he has filed against [appellees].” In response to Mitchell’s
special appearance, appellees asserted that McRae and Mitchell utilized Wade as a “fronting attorney to sign up the PCB clients so as to hide their
involvement,” and Wade engaged a large number of PCB clients using a PCB client list provided by Mitchell, McRae, or both.
In a deposition, Wade testified that Mitchell was not the source of Wade’s clients in lawsuits brought by PCB claimants against appellees,
Mitchell did not assist Wade or conspire with Wade to obtain representation of those clients, and Wade never sought information from Mitchell
about PCB clients to assist Wade in representing those PCB clients in litigation against appellees. Robert Cox, an employee of McRae’s law
firm, testified in a deposition that Mitchell did not provide a list of his PCB clients to be utilized in identifying potential clients for legal
representation in litigation against appellees. McRae testified in a deposition that he has no personal knowledge regarding Wade’s solicitation of
PCB clients in litigation against appellees, he has no personal knowledge of how Wade obtained the names of PCB claimants in order for Wade
to identify potential clients in litigation against appellees, and McRae had no list of PCB clients represented by Mitchell and appellees prior to
filing lawsuits against appellees. With regard to cases filed against appellees, which include plaintiffs who are Texas residents, McRae testified
he did not use, rely on, or obtain assistance from Mitchell.
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Mitchell responded that, even if he conspired with others to solicit PCB claimants to sue
appellees or interfered with F&G’s Retainer Agreements with PCB clients, which he denied, he
neither conspired nor interfered in Texas. 8 Further, Mitchell argues appellees’ complaints that
his actions were directed toward causing injury to appellees in Texas will not support personal
jurisdiction over him. See Geo-Chevron Ortiz Ranch #2, 2007 WL 671340, at *3 (nonresident
defendant’s burden is not to negate the alleged tort, but to negate the sufficiency of the contacts
with the form).
Here, the allegedly tortious conduct by Mitchell underlying S&F and F&G’s breach of
fiduciary duty claim and appellees’ declaratory judgment action does not qualify as purposeful
contacts with Texas required to confer specific jurisdiction. Mitchell’s allegedly tortious
conduct of meeting with PCB clients and conspiring with Mississippi attorneys to solicit PCB
clients to sue appellees and to interfere with F&G’s Retainer Agreements with PCB clients took
place in Mississippi. That the effects of the allegedly tortious conduct may have been felt by the
Texas office of F&G is not sufficient for personal jurisdiction. See Moncrief Oil Int’l, 414
S.W.3d at 157 (defendants’ alleged tortious conduct in California against Texas resident was
insufficient to confer specific jurisdiction over defendants as to plaintiff’s tortious interference
claims). The supreme court has rejected the notion of focusing on where a defendant directed a
tort or where the effects of tortious conduct will be felt in determining specific jurisdiction. See
Michiana, 168 S.W.3d at 790–92; Ahrens & DeAngeli, P.L.L.C., 318 S.W.3d at 478 (specific
jurisdiction is not established merely by allegations or evidence that nonresident committed a tort
in the forum state or “directed a tort” at the forum state). Rather, “it is ‘the defendant’s conduct
and connection with the forum’ that are critical.” Michiana, 168 S.W.3d at 789 (quoting Burger
8
While disagreeing with use of the term “solicitation,” Mitchell acknowledged that in 2012, he met in Mississippi with three or four PCB
clients who were residents of Mississippi and informed them that he was in a dispute with F&G and unable to verify certain allocated litigation
expenses.
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King Corp., 471 U.S. at 474); Markette, 240 S.W.3d at 469 (courts analyze degree of
“connectedness” between forum contacts and litigation to determine whether operative facts of
litigation focus on those contacts).
For these reasons, Mitchell’s alleged tortious conduct of meeting with PCB clients in
Mississippi and conspiring with Mississippi attorneys to solicit PCB clients to sue appellees and
interfere with F&G’s Retainer Agreements with PCB clients did not constitute purposeful
contacts with Texas. This alleged tortious conduct did not give rise to minimum contacts with
Texas and Mitchell is not subject to personal jurisdiction in Texas on that basis. See Ahrens &
DeAngeli, P.L.L.C., 318 S.W.3d at 484.
Conclusion
For specific jurisdiction to exist, Mitchell must have made minimum contacts with Texas
by purposefully availing himself of the privilege of doing business here, and his liability must
arise from or relate to those contacts. See Moki Mac, 221 S.W.3d at 575–76; see also Searcy v.
Parex Res., Inc., Nos. 14-0293 & 14-0295, 2016 WL 3418248, at *5 (Tex. June 17, 2016)
(specific jurisdiction is based on whether defendant’s activities in forum state themselves give
rise to liabilities sued on; broadly stated, specific jurisdiction exists when plaintiff’s claims arise
out of or are related to defendant’s contact with forum). After reviewing the record and for the
reasons discussed above, we conclude Mitchell negated appellees’ alleged bases of specific
jurisdiction. 9 We resolve Mitchell’s sole issue in his favor.
9
Having concluded Mitchell did not purposefully avail himself of the privilege of doing business in Texas, we need not reach Mitchell’s
argument that exercise of personal jurisdiction over him does not comport with traditional notions of fair play and substantial justice. See Kelly,
301 S.W.3d at 657.
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We reverse the trial court’s order denying Mitchell’s special appearance, and we render
judgment dismissing him from this case for lack of personal jurisdiction.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
150868F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DON A. MITCHELL, Appellant On Appeal from the 95th Judicial District
Court, Dallas County, Texas,
No. 05-15-00868-CV V. Trial Court Cause No. DC-14-08251.
Opinion delivered by Justice Fillmore,
FREESE & GOSS, PLLC, RICHARD A. Justices Stoddart and O’Neill participating.
FREESE, TIM K. GOSS, SHELIA M.
BOSSIER, DENNIS C. SWEET, AND
SWEET & FREESE, PLLC, Appellees
In accordance with this Court’s opinion of this date, the order of the trial court denying
appellant Don A. Mitchell’s special appearance is REVERSED and judgment is RENDERED
dismissing appellant Don A. Mitchell from this case for lack of personal jurisdiction.
It is ORDERED that appellant Don A. Mitchell recover his costs of this appeal from
appellees Freese & Goss, PLLC, Richard A. Freese, Tim K. Goss, Shelia M. Bossier, Dennis C.
Sweet, and Sweet & Freese, PLLC.
Judgment entered this 15th day of July, 2016.
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