Evergreen Media Holdings, LLC and Tony DeRosa-Grund v. FilmEngine Entertainment, LLC

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-14-00364-CV
_________________
EVERGREEN MEDIA HOLDINGS, LLC AND TONY DEROSA-GRUND,
Appellants
V.
FILMENGINE ENTERTAINMENT, LLC, Appellee
________________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 14-02-01508-CV
________________________________________________________________________
MEMORANDUM OPINION
In this appeal, the appellants, Evergreen Media Holdings, LLC and Tony
DeRosa-Grund (collectively “Evergreen) contend the trial court erred by granting a
special appearance filed by the appellee, FilmEngine Entertainment, LLC.
(“FilmEngine”). Evergreen raises two issues on appeal: (1) whether the trial court
abused its discretion in denying Evergreen’s motion for continuance to conduct
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jurisdictional discovery; and (2) whether the trial court erred by granting
FilmEngine’s special appearance. We affirm.
I. Background
Evergreen is a Texas limited liability company, and Tony Derosa-Grund is
its executive chairman. FilmEngine is a Delaware company licensed to do business
in California. Anthony Rhulen is its chief executive officer. In July 2013,
Evergreen entered into a contract with FilmEngine regarding two film projects. On
February 7, 2014, Evergreen sued FilmEngine for breach of contract, breach of an
implied covenant of good faith and fair dealing, and for declaratory judgment.
Evergreen alleged that it entered into agreements with FilmEngine in connection
with two movie productions wherein Evergreen would provide script-writing
services to FilmEngine. Evergreen further alleged that it performed under the
agreements, but FilmEngine failed to pay Evergreen for the writing services and
thus materially breached its agreements with Evergreen.
On March 21, 2014, FilmEngine filed a special appearance and asked the
trial court to dismiss the lawsuit for lack of personal jurisdiction because
FilmEngine had no purposeful contacts with the State of Texas. Evergreen filed its
response on May 8, 2014. On August 22, 2014, the trial court granted
FilmEngine’s special appearance and dismissed the case. Evergreen appealed. See
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Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp. 2015) (providing
for interlocutory appeal of grants or denials of a special appearance of a
defendant).
II. Motion for Continuance
In its first issue, Evergreen contends the trial court abused its discretion in
denying its request for a continuance to allow it to conduct jurisdictional discovery
before the trial court ruled on FilmEngine’s special appearance. An appellate court
will not disturb the trial court’s ruling on a motion to continue a special appearance
hearing to obtain discovery absent a showing of a clear abuse of discretion. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002); Barron v.
Vanier, 190 S.W.3d 841, 847 (Tex. App.—Fort Worth 2006, no pet.) (op. on
reh’g).
Texas Rule of Civil Procedure 120a(3) governs jurisdictional discovery. The
rule provides that “[t]he court shall determine the 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). Rule 120a(3) further states that if
it should appear from reasons stated in the opposing party’s affidavits that he
cannot “present by affidavit facts essential to justify his opposition, the court may
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order a continuance to permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just.” Id. In deciding
whether a trial court abused its discretion by denying a motion for continuance
seeking additional time to conduct discovery, the Texas Supreme Court has
considered the following non-exclusive factors: (1) the length of time the case has
been on file; (2) the materiality and purpose of the discovery sought; and (3)
whether the party seeking the continuance has exercised due diligence to obtain the
discovery sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161
(Tex. 2004) (considering these factors in the summary judgment context); Barron,
190 S.W.3d at 847 (considering these factors in the special appearance context).
Evergreen filed its lawsuit on February 7, 2014. FilmEngine filed its special
appearance on March 21, 2014. According to the parties’ appellate briefing,
FilmEngine’s special appearance was originally set for submission on April 30,
2014. Evergreen filed its response to FilmEngine’s special appearance on May 8,
2014. The trial court issued its ruling on FilmEngine’s special appearance on
August 22, 2014. Evergreen argues that the length-of-time factor weighs in its
favor because it had less than two months to conduct discovery before it was
required to file a response. FilmEngine responds that Evergreen actually had over
five months to conduct discovery because the trial court did not grant the special
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appearance until August 22, 2014. FilmEngine contends this was sufficient time
for Evergreen to conduct jurisdictional discovery.
In its original petition, Evergreen alleged that the court had personal
jurisdiction over FilmEngine “because this lawsuit arises from, was connected with
an act or transaction, and relates to the purposeful acts of the non-resident
Defendant in Texas, and those purposeful acts directed towards Texas.” Thus,
Evergreen alleged only specific jurisdiction against FilmEngine. See Searcy v.
Parex Res., Inc., Nos. 14-0293, 14-0295, 2016 WL 3418248, at *5, 9 (Tex. June
17, 2016) (internal citations and quotations omitted) (explaining that general
jurisdiction arises when the defendant’s contacts with the forum state are so
continuous and systematic as render the defendant essentially at home in the forum
state, whereas specific jurisdiction exists when the plaintiff’s claims arise out of or
are related to the defendant’s contact with the forum state). However, in
Evergreen’s motion for continuance, it asked the court for a continuance to conduct
additional discovery “evidencing FilmEngine’s general contacts with Texas.”
Evergreen explained that it would seek discovery of evidence that FilmEngine
“purposefully markets their movies to Texas residents, advertises in Texas, sells
their movies to Texas residents, and otherwise engages in significant business with
Texas residents.”
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Evergreen did not allege in its motion for continuance that it had exercised
due diligence in conducting discovery. There is no evidence in the appellate record
that Evergreen attempted to engage in discovery related to the special appearance,
and Evergreen admitted in its motion for continuance that it had not conducted any
jurisdictional discovery.
Evergreen relies on Barron v. Vanier to support its position that it was
entitled to a continuance. In Barron, the appellate court held that the trial court
abused its discretion in denying the plaintiff’s motion for continuance of a special
appearance hearing to permit him to conduct further discovery on the issue of
personal jurisdiction where the special appearance hearing was held two months
after the filing of the special appearance, and the plaintiff sought information
which, if it existed and was discovered, could support his allegations of specific
personal jurisdiction over the defendants. 190 S.W.3d at 847-51.
This case is distinguishable from Barron. In Barron, all three factors
weighed in favor of granting the motion for continuance, while, here, the
application of the factors is not so clearly defined. See id. The first factor does tend
to support a continuance. Evergreen had less than two months to conduct discovery
before its response to the special appearance was due. See id. at 847-48.
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The second factor weighs against Evergreen’s motion for a continuance. In
Barron, the plaintiff alleged personal jurisdiction over defendants based on specific
jurisdiction and then sought discovery of facts relating to both specific and general
jurisdiction. Id. at 849. FilmEngine contends Evergreen only sought discovery on
matters related to general jurisdiction. Evergreen responds that it sought discovery
of matters relevant to specific personal jurisdiction when it requested to depose
Rhulen about various factual misstatements Rhulen made in his affidavit regarding
the agreements. However, Evergreen’s request in its motion for continuance was
not as specific as Evergreen now contends on appeal; rather, in pertinent part,
Evergreen argued the following to the trial court:
44. Upon information and belief, FilmEngine purposefully
markets their movies to Texas residents, advertises in Texas, sells
their movies to Texas residents, and otherwise engages in significant
business with Texas residents. Plaintiffs, however, do not have
personal knowledge of the extent of FilmEngine’s contacts with Texas
and its residents that are unrelated to this lawsuit, and would therefore
need to conduct discovery before providing the Court with affidavits
and other documents evidencing FilmEngine’s general contacts with
Texas.
45. Plaintiffs request that the Court permit them to serve
requests for production, requests for admission, and interrogatories
relating to FilmEngine’s contacts with Texas. Further, once Plaintiffs
receive and review FilmEngine’s responses, they intend to request the
deposition of FilmEngine’s corporate representative as well as its
CEO, Anthony Rhulen, who provided an affidavit in support of
FilmEngine’s Special Appearance. Because the jurisdictional issue
will not be ripe for the Court’s consideration until [all] of the
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jurisdictional facts are known—and not just those about which Mr.
Rhulen decided to advise the Court—the Court should defer ruling on
FilmEngine’s Special Appearance for at least 90 days so that the
parties can engage in jurisdictional discovery.
(internal footnotes and citations omitted). Evergreen argued that the trial court
should not decide the special appearance until it had all jurisdictional facts, but the
only facts Evergreen specifically identified as being unknown in its motion for
continuance are those related to general jurisdiction. Therefore, we conclude the
facts Evergreen specifically sought to discover were not relevant to Evergreen’s
allegations that personal jurisdiction existed over FilmEngine on the basis of
specific personal jurisdiction.
Application of the third factor supports the trial court’s denial of Evergreen’s
motion for continuance. In Barron, the plaintiff served requests for production,
requests for disclosure, and notices of depositions. Id. at 850. Here, there is no
evidence in the record that Evergreen attempted to diligently use the rules of civil
procedure for discovery. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865
(Tex. 1988) (addressing diligence factor). Evergreen contends that because it only
had two months, it was unable to propound discovery. FilmEngine responds that
two months was enough time to at least attempt to engage in discovery.
FilmEngine argues that Evergreen’s lack of diligence is further reflected in the fact
that it did not attempt jurisdictional discovery after filing its response. Based on the
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record, we note that after submission of the special appearance, the trial court
delayed its ruling for approximately three months, and Evergreen did not seek to
conduct discovery or file supplemental affidavits. See Tex. R. Civ. P. 120a(3)
(providing the court shall determine a special appearance based on the pleadings,
stipulations, affidavits and attachments filed by the parties, oral testimony, and the
results of discovery processes); Phillips Dev. & Realty, LLC v. LJA Eng’g, Inc.,
No. 14-14-00858-CV, 2016 WL 3610457, at * 6 (Tex. App.—Houston [14th Dist.]
June 30, 2016, no pet.) (holding that a trial court has discretion to consider late-
filed affidavits in special appearance proceedings); Tempest Broad. Corp. v. Imlay,
150 S.W.3d 861, 870 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (suggesting
that Rule 120a(3) appears to give the trial court discretion to grant the party
opposing a special appearance other forms of relief when the court deems it “just”
to do so).
Based on our consideration of all the factors, it was not an abuse of
discretion for the trial court to deny Evergreen’s motion for continuance. See Joe,
145 S.W.3d at 161. This is not a situation where Evergreen was unable to present
facts to support its opposition to FilmEngine’s special appearance. See Tex. R. Civ.
P. 120a(3). Evergreen submitted an unsworn declaration that specifically disputed
FilmEngine’s facts denying that the court had specific personal jurisdiction. See
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Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (West Supp. 2015) (providing that
“an unsworn declaration may be used in lieu of a written sworn declaration,
verification, certification, oath, or affidavit required by statute or required by a
rule, order, or requirement adopted as provided by law”). Additionally, a
substantial amount of the information regarding general jurisdiction that Evergreen
seeks is contained in the record, including that FilmEngine does not maintain an
office in Texas, does not own property in Texas, does not employ any Texas
residents, has no accounts in Texas, has not purchased assets in Texas, and has
never engaged in business in Texas. See In re Guardianship of Cardenas, No. 13-
09-00560-CV, 2010 WL 2543650, at *10 (Tex. App.—Corpus Christi June 24,
2010, no pet.) (mem. op.) (concluding that plaintiff’s rights were not disregarded
when most of the additional facts sought by plaintiff were already contained in the
record).
We overrule Evergreen’s first issue.
III. Special Appearance
In its second issue, Evergreen contends the trial court erred by granting
FilmEngine’s special appearance.
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A. Standard of Review and Burdens of Proof
The question of whether a court has personal jurisdiction over a nonresident
defendant is a question of law we review de novo. Kelly v. Gen. Interior Constr.,
Inc., 301 S.W.3d 653, 657 (Tex. 2010). In a special appearance, the plaintiff and
the defendant bear shifting burdens of proof. Id. at 658. The plaintiff bears the
initial burden to plead sufficient allegations to bring the nonresident defendant
within the reach of Texas’s long-arm statute. Id. If the plaintiff pleads sufficient
jurisdictional allegations, then the defendant bears the burden to negate all bases of
personal jurisdiction alleged by the plaintiff. Id. It is the plaintiff’s pleadings that
define the scope and nature of the lawsuit; thus, the defendant’s burden is only to
negate jurisdictional allegations alleged in the plaintiff’s pleading. Id. A defendant
may negate the plaintiff’s jurisdictional allegations on either a factual or legal
basis. Id. at 659. If the nonresident defendant presents evidence that it had no
contacts with Texas, then it effectively disproves the plaintiff’s allegations. Id. But,
the plaintiff may respond with its own evidence affirming its allegations. Id. As
such, the trial court must frequently resolve fact questions before deciding the
jurisdictional issue. BMC Software, 83 S.W.3d at 794. We will not “disturb a trial
court’s resolution of conflicting evidence that turns on the credibility or weight of
the evidence.” Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.—Austin 2005,
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no pet.). “When a trial court does not issue findings of fact and conclusions of law
with its special appearance ruling, all facts necessary to support the judgment and
supported by the evidence are implied.” BMC Software, 83 S.W.3d at 795. If the
appellate record includes a reporter’s and clerk’s record, implied findings are not
conclusive and may be challenged for legal and factual sufficiency. Id.
Finally, we must be mindful that due process requires our jurisdictional
inquiry to be separate and distinct from the underlying merits of the parties’
claims. Booth v. Kontomitras, 485 S.W.3d 461, 476-77 (Tex. App.—Beaumont
2016, no pet.). Thus, when viewing Evergreen’s jurisdictional allegations, we ask
only whether Evergreen’s allegations are sufficient to invoke the exercise of
personal jurisdiction over FilmEngine without regard to the merits of Evergreen’s
claims. See id. at 477.
B. Personal Jurisdiction
Our consideration of personal jurisdiction involves issues of both federal and
state law. Searcy, 2016 WL 3418248, at *5. A nonresident defendant is subject to
the personal jurisdiction of Texas if (1) the Texas long-arm statute authorizes the
exercise of jurisdiction, and (2) the exercise of jurisdiction comports with federal
and state constitutional due process guarantees. Kelly, 301 S.W.3d at 657. Because
the Texas long-arm statute provides for personal jurisdiction that extends to the
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limits of the United States Constitution, federal due process requirements “shape
the contours of Texas courts’ jurisdiction reach.” Searcy, 2016 WL 3418248, at *5.
Personal jurisdiction can be established over a nonresident only if the defendant
has purposefully established “minimum contacts” with the forum state and the
exercise of jurisdiction over the defendant comports with “traditional notions of
fair play and substantial justice.” Daimler AG v. Bauman, 134 S. Ct. 746, 754
(2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
923 (2011)); Searcy, 2016 WL 3418248, at *5.
As discussed above, Evergreen only alleged specific personal jurisdiction,
which exists when the defendant purposefully avails itself of conducting activities
in the forum states and the cause of action arises from or is related to those
activities. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); Searcy,
2016 WL 3418248, at *5. The first step in the personal jurisdiction analysis is to
determine whether a nonresident defendant purposefully availed itself of the
benefits and protections of the state’s laws by establishing minimum contacts with
Texas. In the “purposeful-availment” analysis as applied to specific personal
jurisdiction: (1) only the defendant’s contacts with Texas are considered; (2) the
defendant’s contacts must be purposeful, rather than random, fortuitous, isolated,
or attenuated; (3) the defendant must have sought some benefit, advantage, or
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profit by availing itself of Texas jurisdiction. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 785 (Tex. 2005); see also Searcy, 2016 WL 3418248, at
*5. Our analysis is focused on the quality and nature of the defendant’s contacts,
not the number of contacts. Am. Type Culture Collection, Inc. v. Coleman, 83
S.W.3d 801, 806 (Tex. 2002). “Even a single purposeful contact may be sufficient
to meet the requirements of minimum contacts when the cause of action arises
from the contact.” Micromedia v. Automated Broad. Controls, 799 F.2d 230, 234
(5th Cir. 1986); see also Crithfield v. Boothe, 343 S.W.3d 274, 286 (Tex. App.—
Dallas 2011, no pet.).
The United States Supreme Court has explained that an individual’s contract
with a nonresident defendant cannot alone establish sufficient minimum contacts in
the plaintiff’s home forum for specific jurisdiction to exist. Burger King, 471 U.S.
at 478; see Walden v. Fiore, 134 S. Ct. 1115, 1122-23 (2014); Hoagland v.
Butcher, 474 S.W.3d 802, 815 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The Court has rejected the notion that personal jurisdiction is determined solely by
the place of contracting or of performance. Burger King, 471 U.S. at 478. The
Court explained that in determining whether a defendant has purposefully
established minimum contacts within the forum state in a contract situation, the
court should consider the parties’ “prior negotiations and contemplated future
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consequences, along with the terms of the contract and the parties’ actual course of
dealing[.]” Id. at 479. Only those acts which relate to the formation of the contract
and the subsequent breach are relevant in a specific jurisdiction analysis. Religious
Tech. Ctr. v. Liebreich, 339 F.3d 369, 375 (5th Cir. 2003). Ultimately, the goal of
our analysis is to determine whether a nonresident’s conduct and connection to a
forum state are such that he should reasonably anticipate being haled into court
there. Burger King, 471 U.S. at 474-75.
“The contract’s place of performance is an important consideration.”
Hoagland, 474 S.W.3d at 815. If a contract is specifically designed to benefit a
nonresident defendant with a Texas resident’s skills performed in Texas, then it is
reasonable to subject the nonresident defendant to Texas jurisdiction in connection
with litigation arising from that contract. Id. We will also consider the contract’s
choice-of-law provision. Burger King, 471 U.S. at 482. A nonresident’s action in
sending funds to Texas in relation to a contract is another factor to consider. See
Bissbort v. Wright Printing & Pub. Co., 801 S.W.2d 588, 589 (Tex. App.—Fort
Worth 1990, no writ) (considering it a relevant fact that a nonresident defendant
wired a large sum of money to a Texas bank in determining minimum contacts);
but see Falcon Crest Aviation Supply, Inc. v. Jet Mgmt., LLC, No. 14-11-00789-
CV, 2012 WL 4364661, at *4 (Tex. App.—Houston [14th Dist.] Sept. 25, 2012, no
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pet.) (mem. op.) (stating that a nonresident’s defendant’s actions in sending
payment to Texas did not support a finding of jurisdiction when place of payment
was dictated by plaintiff). A nonresident’s action in initiating phone calls from the
nonresident’s state directed to Texas is not enough to satisfy the minimum contacts
requirements. See Hsu v. Liu, No. 09-06-423 CV, 2007 WL 3395644, at *1–4
(Tex. App.—Beaumont Nov. 15, 2007, pet. denied) (mem. op.).
As alleged by Evergreen, “[p]ersonal jurisdiction over the non-resident
Defendant is proper because this lawsuit arises from, was connected with an act or
transaction, and relates to the purposeful acts of the non-resident Defendant in
Texas, and those purposeful acts directed towards Texas.” Evergreen further
alleged in its petition that FilmEngine entered into the agreements with Evergreen,
a Texas business, and DeRosa-Grund, a Texas resident and that FilmEngine
“transact[ed] business in Montgomery County, Texas.” A plaintiff is not required
to plead in its petition the theories or bases of personal jurisdiction upon which it
relies. Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.]
2005, no pet.). To meet its initial burden, it is sufficient if the plaintiff pleads facts
sufficient to bring a nonresident defendant within the provisions of the long-arm
statute. Id. A plaintiff satisfies this minimal requirement by an allegation that the
nonresident defendant was doing business in Texas. Id.; see also Tex. Civ. Prac. &
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Rem. Code Ann. § 17.042(1) (West 2015). Here, we conclude Evergreen met its
initial burden and the burden then shifted to FilmEngine to negate every basis for
jurisdiction alleged by Evergreen. See Huynh, 180 S.W.3d at 619.
To negate Evergreen’s pleadings, FilmEngine denied in its special
appearance that it had contacts with Texas or had purposefully availed itself of the
privilege of doing business in Texas. FilmEngine further stated that it is a
Delaware limited liability company, has no offices in Texas, and owns no property
in Texas. To respond to the allegations that FilmEngine engaged in purposeful acts
directed towards Texas, FilmEngine submitted the affidavit of its CEO, Anthony
Rhulen. In his affidavit, Rhulen stated that FilmEngine has never purposefully
sought to enter into a contract with a Texas resident for services to be provided in
Texas, except for legal counsel in this case. Regarding the agreements with
Evergreen, Rhulen stated that “[a]ll discussions, meetings, and investigations
before and after the agreements were conducted in California[,]” where
FilmEngine’s principal place of business is located. Rhulen testified that the
agreements at issue had a choice-of-law provision designating the application of
California law. Rhulen testified that DeRosa-Grund solicited him in California in
the past about rights he had in some intellectual property. He stated that DeRosa-
Grund approached him in July 2013 in California regarding the two motion picture
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deals he had and asked FilmEngine to become involved with the production of the
projects and to assist in obtaining financing and distribution of the product. Rhulen
testified that every in-person meeting regarding the projects occurred in California.
He further stated that the two agreements forming the basis of Evergreen’s lawsuit
were executed in California. He denied ever meeting DeRosa-Grund in Texas.
Rhulen stated that he primarily communicated with DeRosa-Grund by email and
some by phone, but he had no knowledge of DeRosa-Grund’s locations during
these communications. The agreements have no reference to Texas, and there is no
indication or agreement that production or distribution would take place in Texas.
Evergreen argues that FilmEngine is subject to the specific jurisdiction of
Texas courts because (1) FilmEngine entered into the agreements with a Texas
resident and Texas business; (2) Evergreen performed all obligations under the
agreements in Texas; (3) FilmEngine solicited Evergreen in Texas to initiate
negotiations for the agreements; (4) Evergreen executed the agreements in Texas;
(5) FilmEngine mailed the executed copies of the agreements to Evergreen in
Texas; (6) FilmEngine knew Evergreen was located in Texas and performing
obligations under the agreements in Texas; (7) FilmEngine communicated with
Evergreen hundreds of times over the course of more than one year about the
execution and performance of the agreements while Evergreen was located in
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Texas; (8) FilmEngine made a wire transfer of funds to Evergreen’s bank in Texas;
(9) FilmEngine mailed a Form 1099 to Evergreen in Texas; (10) the agreements
contemplated a long-term relationship, and therefore FilmEngine contemplated
having continued contacts with Evergreen in the future related to the agreements;
and (11) FilmEngine negotiated the agreements with Evergreen for more than a
year, while Evergreen was located in Texas. Evergreen filed DeRosa-Grund’s
affidavit with the trial court to support these allegations. Many of Evergreen’s
allegations point to its own actions, but Evergreen’s actions are not relevant to our
determination of whether FilmEngine purposefully availed itself in Texas. See
Michiana, 168 S.W.3d at 785; see also Searcy, 2016 WL 3418248, at *5.
Evergreen’s argument that FilmEngine is subject to specific jurisdiction in Texas
because FilmEngine communicated with DeRosa-Grund numerous times while
DeRosa-Grund was allegedly located in Texas is unpersuasive. Evergreen seems to
suggest that these communications show FilmEngine targeted or purposely
directed communications towards Texas or a Texas resident. We note that the
initial emails between DeRosa-Grund and FilmEngine dated in June and August of
2012, contain no reference to DeRosa-Grund or Evergreen’s physical address in
Texas. There is a vague reference by DeRosa-Grund that he has a friend “here in
Houston” in one of the emails dated months after the parties started
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communicating about the projects. DeRosa-Grund’s email signature block contains
only his name, title, the name of the company, his direct phone line, fax number,
and email address. It does not contain his physical address. In August of 2013, over
a year after the initial email communication reflected in the record, there is an
email communication that references an address for Evergreen in Texas.
FilmEngine alleges and supports with affidavit testimony that DeRosa-
Grund reached out to FilmEngine first while DeRosa-Grund was located in
California, not Texas. Rhulen also states that all in-person meetings occurred in
California, that DeRosa-Grund represented to him that his film representative was
located in California, and that his legal counsel was located in California.
Additionally, as FilmEngine argues in its brief, DeRosa-Grund could have been
anywhere in the world when he received the communications from FilmEngine,
not just Texas.
While Evergreen’s affidavit controverts some of FilmEngine’s allegations
and evidence regarding jurisdiction, at this stage of the litigation, we must presume
the trial court resolved all factual disputes in favor of its judgment. See Coleman,
83 S.W.3d at 806. We conclude FilmEngine’s evidence conclusively negates all
jurisdictional grounds alleged by Evergreen. FilmEngine’s motion and affidavit
establishes that DeRosa-Grund approached FilmEngine in California, all in-person
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meetings to negotiate the agreements occurred in California, the agreements were
executed in California, the parties agreed that California law would govern the
agreements, and that FilmEngine had no intention to engage Evergreen to perform
its obligations under the agreements in Texas. Because FilmEngine lacks minimum
contacts with Texas, we need not determine whether the exercise of jurisdiction
would offend traditional notions of fair play and substantial justice. See Baldwin v.
Household Int’l, Inc., 36 S.W.3d 273, 277 (Tex. App.—Houston [14th Dist.] 2001,
no pet.). For these reasons, we overrule Evergreen’s second issue.
Having held that the trial court did not err in denying Evergreen’s motion for
continuance and granting FilmEngine’s special appearance, we affirm the trial
court’s judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on June 5, 2015
Opinion Delivered September 22, 2016
Before Kreger, Horton and Johnson, JJ.
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