Sondra Jackson v. Erik Dean

Affirmed and Memorandum Opinion filed January 15, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-01044-CV
SONDRA JACKSON, Appellant
V.
ERIK DEAN, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 13-DCV-208784
MEMORANDUM OPINION
Appellant Sondra Jackson sought to domesticate a judgment she had
obtained against appellee Erik Dean in Alabama. Dean successfully moved to
vacate the judgment on the basis that the Alabama court lacked personal
jurisdiction over him. On appeal, Jackson contends that the trial court erred
because the evidence established that Dean had sufficient contacts with Alabama to
support the Alabama court’s exercise of jurisdiction over him. We affirm.
FACTUAL BACKGROUND
In 2007, Sondra Jackson, an Alabama resident, contracted with Infinity
Hospitality Group, LLC, a Texas company, as an independent marketing
representative in the hospitality industry. Dean, a Texas resident living in Fort
Bend County, was Infinity’s president. Jackson sold Infinity’s products in a
marketing area that included Alabama, Mississippi, Louisiana, and western
Tennessee.
In 2011, Jackson sued Infinity, Dean, and another Infinity representative,
Chris Coursen, a New Jersey resident, in the Circuit Court of Mobile, Alabama.
Jackson asserted a breach of contract claim against Infinity and numerous claims
against all defendants, including fraud and conspiracy. In her petition, Jackson
alleged that Dean and Coursen misrepresented to her that she would be given an
exclusive marketing area and that they failed to pay her commissions totaling more
than $32,000.
The Alabama circuit court entered a default judgment in favor of Jackson
and, on April 20, 2012, signed a judgment against Dean for roughly $115,000 in
damages and prejudgment interest accrued. The judgment reflected that no action
was being taken as to Infinity “as the case against them has been stayed by Ms.
Jackson due to bankruptcy proceedings.”
Jackson sought to domesticate the Alabama judgment in Texas by filing a
Foreign Judgment Authentication with a certified copy of the Alabama judgment in
the Fort Bend County district court. Dean moved to vacate the judgment on the
sole ground that the Alabama court lacked personal jurisdiction over him. Dean
argued that he did not purposely establish minimum contacts with Alabama such
that he could reasonably anticipate being sued there, and the exercise of personal
jurisdiction would not comport with fair play and substantial justice.
2
Dean supported his motion with an affidavit in which he stated that Infinity
was formed as a Texas limited liability company in 2004. A company of Dean’s
was one of the members of Infinity. Dean explained that Infinity had offices in
Houston, New Jersey, and Nevada, and it “had a network of marketers in various
areas of the country” who marketed Infinity’s products. He stated that Jackson
“had a marketing contract for parts of the Southeastern United States.” Dean also
stated that Jackson’s contract was negotiated by Coursen “out of Infinity’s New
Jersey office.” According to Dean, “Coursen was the primary Infinity contact with
all of Infinity’s marketers.” Dean averred that the contract “was solely between
Infinity and [Jackson]” and Dean “was not a party to the contract.”
Dean explained that Jackson was not paid her commissions because Infinity
began losing money and filed for bankruptcy. Dean denied conspiring with
Coursen to commit fraud, and stated that even if they had done so, any conspiracy
or fraud would have taken place either in New Jersey or Texas, not in Alabama.
Dean also stated:
“My personal contacts with Plaintiff were limited. In my
dealings with her, I acted solely as a representative of one of the
managers of Infinity. I did meet her from time to time at trade shows
in New York and Chicago, not Alabama. We had maybe a total of
three dozen phone calls over the years she had a relationship with
Infinity. In each case, we talked on pending Infinity business. I was
either in Texas or elsewhere (never in Alabama) when we talked.
Dean denied ever personally conducting business in Alabama, owning any
property in Alabama, or having any interest in any businesses in Alabama. He also
stated that he had only been to Alabama twice, and both times he was driving from
Texas to Florida while on family vacations.
In response to Dean’s motion to vacate, Jackson argued that her judgment
was entitled to full faith and credit, and that Dean could not meet his burden to
3
avoid the judgment. Jackson supported her response with her own affidavit, in
which she averred that Dean “repeatedly made untrue representations to [Jackson]
in Alabama that were false.” She stated that “Erik Dean and his company” entered
into a business relationship with her to sell their products in Alabama and that she
was paid in Alabama “by Erik Dean and his company for three years.” Also,
Jackson averred that “Erik Dean entered into a contractual relationship and
personally made false statements via email” to her in Alabama.
Along with the affidavit, Jackson attached to her response an exhibit
consisting of several business-related emails reflecting communications between
her and Infinity personnel or third parties. Although some were from Jackson to
Dean, and Dean was copied on others, only one was from Dean to Jackson. That
email, sent in 2007, reflected that Dean had met Jackson in New York and was
discussing hiring her. Dean requested Jackson’s address and asked Jackson to
identify the territories she reached so that he could draw up a letter agreement with
her. The email reflected that it was sent by Dean as president of Infinity.
In her response, Jackson sought to discredit Dean’s statement in his affidavit
that he did not seek the benefit of any business opportunity in Alabama, pointing to
her affidavit as evidence that Dean hired and paid Jackson to market Infinity’s
products. Jackson asserted that, through his actions on behalf of Infinity, Dean
sought to “caus[e] Sondra Jackson to act and bring in revenue for Infinity
Hospitality from which he would personally gain as an owner/member of the
company.” Jackson argued that these actions “justif[y] a personal action for fraud
against Mr. Dean because he acted for his own personal gain.” Thus, she
maintained, Dean was subject to jurisdiction in Alabama based on his activities of
engaging Jackson to sell Infinity’s products, his contacts over a three year period,
and his making payments to Jackson in Alabama.
4
At the hearing on Dean’s motion, Dean appeared and testified. Jackson did
not appear, but Jackson’s counsel offered as evidence Dean’s affidavit and the
business-related emails, which were admitted without objection. Dean offered a
copy of Jackson’s Alabama petition, which was also admitted.
Dean’s testimony at the hearing reflected many of the same facts contained
in his affidavit, along with some additional testimony. Dean stated that Infinity was
a Texas limited liability company that had offices in Houston, Texas, as well as
Paramus, New Jersey and Las Vegas, Nevada. Dean and Coursen were the
members of the company, and Dean was its president. Dean testified that the
company was purposely formed to insulate its members from personal liability.
Dean also testified that Jackson was an independent manufacturer’s representative
whose agreement was with Infinity. Dean denied contracting individually with
anyone in Alabama. Although Dean stated that Coursen primarily interacted with
Infinity’s representatives, Dean acknowledged that he occasionally talked to
Jackson, estimating eight to ten times per year, and he saw her at trade shows.
Dean also testified that in all of his dealings with Jackson, he was acting on behalf
of Infinity.
At the conclusion of the hearing, the district court granted Dean’s motion to
vacate. This appeal followed.
ANALYSIS OF JACKSON’S ISSUE
In one issue, Jackson contends that the trial court erred in granting Dean’s
motion to vacate her Alabama judgment because the evidence establishes that the
Alabama court properly asserted personal jurisdiction over Dean based on his
contacts in that state. Jackson primarily relies on Dean’s affidavit and hearing
testimony, in which Dean acknowledged that he communicated with Jackson by
telephone, fax, and email; he knew that Jackson was in Alabama; and he
5
communicated with Jackson for the purpose of having her sell products to generate
income “for [him] and his company.”
Dean has not filed an appellate brief. Below, Dean argued that he could not
be held individually liable for the company’s debts; Jackson failed to allege that he
committed any tortious acts in Alabama; and the mere fact that the effects of
tortious conduct committed out of state are felt in a particular state is an
insufficient basis for that state’s exercise of personal jurisdiction over a
nonresident defendant.
A. The Applicable Law and Standard of Review
Jackson sought to domesticate her Alabama judgment under the Uniform
Enforcement of Foreign Judgments Act (UEFJA). See Tex. Civ. Prac. & Rem.
Code §§ 35.001–.008. When a judgment creditor files an authenticated copy of a
foreign judgment under the UEFJA, the judgment creditor satisfies its burden to
present a prima facie case for its enforcement. Peters v. Top Gun Exec. Grp., 396
S.W.3d 57, 61 (Tex. App.—Houston [14th Dist.] 2013, no pet.); EnviroPower,
L.L.C. v. Bear, Stearns & Co., Inc., 265 S.W.3d 16, 19 (Tex. App.—Houston [1st
Dist.] 2008, no pet); see Tex. Civ. Prac. & Rem. Code § 35.003. The burden then
shifts to the judgment debtor to prove by clear and convincing evidence why the
sister state’s judgment should not be given full faith and credit as the United States
Constitution requires. Peters, 396 S.W.3d at 61; EnviroPower, 265 S.W.3d at 19–
20. A complaint that the sister state’s court lacked personal jurisdiction over the
judgment debtor is a recognized defense to enforcement. See Peters, 396 S.W.3d at
61; Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702,
713 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).
We review a trial court’s order vacating a foreign judgment for an abuse of
discretion. Peters, 396 S.W.3d at 61. Although resolving whether a judgment
6
debtor has established an exception to full faith and credit generally involves a
factual inquiry, whether a court has jurisdiction over a defendant is a question of
law. Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 486
(Tex. App.—Houston [14th Dist.] 2004, pet. denied); see Michiana Easy Livin’
Country, Inc., v. Holten, 168 S.W.3d 777, 790–91 (Tex. 2005) (“Personal
jurisdiction is a question of law for the court, even if it requires resolving questions
of fact.”). The trial court has no discretion in applying the law to the established
facts. Mindis Metals, Inc., 132 S.W.3d at 486. Therefore, we review the record to
determine whether the trial court misapplied the law to the established facts by
concluding that Dean established that the Alabama court lacked personal
jurisdiction to render judgment against him. See id. at 486.
Alabama’s long-arm statute, like that of Texas, extends the personal
jurisdiction of the Alabama courts to the limits of due process under the federal
and state constitutions. See Ala. R. Civ. P. 4.2(a), (b); Sieber v. Campbell, 810
So. 2d 641, 644 (Ala. 2001); see also Tex. Civ. Prac. & Rem. Code §§ 17.041–
.045; BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
Personal jurisdiction is proper when the nonresident defendant has established
minimum contacts with the forum state, and the assertion of jurisdiction complies
with traditional notions of fair play and substantial justice. Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945); Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 575 (Tex. 2007).
Minimum contacts are sufficient for personal jurisdiction when the
nonresident defendant purposefully avails himself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its
laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); Kelly v. Gen.
Interior Constr., Inc., 301 S.W.3d 653, 657–58 (Tex. 2010). The nonresident
7
defendant’s minimum contacts may give rise to either specific or general
jurisdiction. Burger King, 471 U.S. at 472–73 n.15 (citing Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984)).
Here, Jackson argues only that Dean’s contacts give rise to specific
jurisdiction. Specific jurisdiction exists if a nonresident defendant has purposefully
directed its activities at the forum state and the litigation results from alleged
injuries that arise out of or relate to those activities. Id. at 472–73. Stated another
way, specific jurisdiction depends on an “activity or an occurrence that takes place
in the forum State and is therefore subject to the State’s regulation.” Walden v.
Fiore, ___ U.S. ___, 134 S. Ct. 1115, 1121 n.6 (2014) (quoting Goodyear Dunlop
Tires Operations., S.A. v. Brown, ___ U.S. ___, 131 S. Ct. 2846, 2851 (2011)).
The inquiry into whether a forum state may assert specific jurisdiction over a
nonresident defendant focuses on the relationship among the defendant, the forum,
and the litigation. Id. at 1121 (internal quotation marks and citations omitted);
Calder v. Jones, 465 U.S. 783, 783 (1984). For a state to exercise jurisdiction
consistent with due process, “the defendant’s suit-related conduct must create a
substantial connection” with the forum state. Walden, 134 S. Ct. at 1121. The
relationship must arise out of contacts that the defendant himself creates with the
forum state, not the unilateral activities of the plaintiff or other persons. Id. at
1122; Hanson v. Denckla, 357 U.S. 235, 253 (1958). Due process requires that a
defendant be haled into court in a forum state based on his own affiliation with the
state, not based on the random, fortuitous, or attenuated contacts he makes by
interacting with other persons affiliated with the state. Walden, 134 S. Ct. at 1123;
Burger King, 471 U.S. at 475.
Thus, a forum state’s exercise of jurisdiction over an out-of-state intentional
tortfeasor must be based on intentional conduct by the defendant that creates the
8
necessary contacts with the forum. Walden, 134 S. Ct. at 1123. Mere injury to the
forum resident is not a sufficient connection to the forum. Id. at 1125. “The proper
question is not where the plaintiff experienced a particular injury or effect but
whether the defendant’s conduct connects him to the forum in a meaningful way.”
Id.; see Kelly, 301 S.W.3d at 661 (holding that court of appeals erred by allowing
fraud claim to proceed against nonresident company’s officers when plaintiffs
offered no allegations or evidence that any part of their claim originated from the
officers’ conduct in the forum); Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d
769, 773 (Tex. 1995) (declining to recognize the assertion of specific jurisdiction
over a nonresident defendant based solely on the effects or consequences of an
alleged conspiracy with a resident of the forum).
B. The Alabama Court Lacked Personal Jurisdiction over Dean
In her petition before the Alabama court, Jackson alleged that Dean and
Coursen “acted as officers, agents, and/or representatives of Infinity” when dealing
with her and that jurisdiction over Dean and Coursen was appropriate in Alabama
because they “conspired . . . to commit fraud and injure an Alabama resident with
prior knowledge.” To support her tort claims, Jackson alleged that Dean and
Coursen conspired to cause her injury by making false representations to her
concerning her marketing area and her commissions. Jackson’s petition does not
allege that Dean engaged in any tortious conduct in Alabama.
Both below and on appeal, Jackson relies on Dean’s business-related
communications with her by phone, fax, and email over a three-year period.
Specifically, Jackson points to Dean’s acknowledgement in his affidavit that he
had “maybe had a total of three dozen phone calls over the years [Jackson] had a
relationship with Infinity.” Jackson also points to testimony that she contends
shows that Dean had “consistent and continuous contacts” with her which
9
established a business relationship with her in Alabama “from which the suit
derived”:
Q [Jackson’s counsel:] You personally communicated with her
during the course of the contract?
A [Dean:] Occasionally.
Q By telephone?
A Sometimes.
Q By e-mail?
A Correct.
Q By faxes sometimes?
A Probably.
Additionally, Jackson points to Dean’s testimony to demonstrate that Dean
engaged in business on behalf of himself and his company and that he purposefully
directed his activities at the forum state:
Q [Jackson’s counsel:] But you wanted her to engage in business
on behalf of you and your company in Alabama, correct?
A [Dean:] Correct.
Q During the course of your relationship with her, when you sent
her e-mails from your e-mail account, you were expecting her to
engage in business on behalf of you and the company in Alabama
when you did that, right?
...
A Yeah, we communicated on possible jobs and projects and
customers.
Q Right. And things you wanted her to do in Alabama, correct?
A Correct.
Q And you wanted her to sell in order to generate income for you
and your company, correct?
A Correct.
10
...
Q And in the course of . . . some of those communications,
promises of payment turned out not to be true because of the
bankruptcy, correct?
A Correct.
...
Q Okay. And your position is that you didn’t have to pay her
because the company filed bankruptcy, correct?
A We couldn’t, correct.
Q You personally could, but you didn’t, correct?
A I couldn’t, actually.
Q All right. Did you not pay her because a bankruptcy was filed
personally?
A I mean, I couldn’t personally pay it.
Q All right. In all of your interactions by telephone, fax, email,
you knew that Ms. Jackson was in Alabama, correct?
A Correct.
Q You expected her to work for you and your company in
Alabama during - - during this period, correct?
A Correct.
Q And your communications with her in those different ways was
to encourage her to do business for you in Alabama, correct?
A Correct.
Jackson asserts that Dean’s admissions of phone calls and other communications
form the basis for the fraud and other allegations against him. Jackson argues that
the evidence establishes “direct, consistent[,] and repetitive intentional contacts”
which amount to purposeful availment by Dean of the privilege of conducting
business in the state of Alabama, because he “benefited from customers and sales
from the State of Alabama through [Jackson].” Further, Jackson contends this
evidence justifies a personal action against Dean for fraud because he acted for his
11
own personal gain.
An individual’s contract with an out-of-state party, without more, cannot
establish sufficient minimum contacts in the other party’s home forum. Burger
King, 471 U.S. at 478. Similarly, “an individual’s transaction of business within
the state solely as a corporate officer does not create personal jurisdiction over that
individual though the state has in personam jurisdiction over the corporation.”
Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985); Cerbone v. Farb, 225
S.W.3d 764, 769 (Tex. App.—Houston [14th Dist.] 2007, no pet.). However, a
corporate officer is not protected from specific jurisdiction as to intentional torts or
fraudulent acts for which he may be held individually liable. Cerbone, 225 S.W.3d
at 769. To support specific jurisdiction over a corporation’s officers for alleged
wrongdoing, a plaintiff must plead, and when challenged by the defendant, present
evidence that the officer’s relevant acts occurred, at least in part, in the forum state.
See Walden, 134 S. Ct. at 1121; Kelly, 301 S.W.3d at 660–61; see also Int’l Shoe,
326 U.S. at 319 (noting that the due process clause does not contemplate that a
state may make a binding judgment against an individual lacking “contacts, ties, or
relations” with the state).
Although Jackson attempts to blur the distinction between Dean’s acts as an
individual and the acts of the company he represented, Jackson’s petition alleged
that, since 2007, Dean acted as an officer, agent, or representative of Infinity when
dealing with her. Jackson argues that Dean’s contacts on behalf of Infinity justify a
personal action against him for fraud because he stood to gain personally as an
owner or member of the company; but, assuming Jackson sufficiently alleged fraud
and conspiracy claims against Dean individually under Alabama law, “the mere
existence of a cause of action does not automatically satisfy jurisdictional due
process concerns.” Kelly, 301 S.W.3d at 660; see also Shaffer v. Heitner, 433 U.S.
12
186, 215 (1977) (“[W]e have rejected the argument that if a State’s law can
properly be applied to a dispute, its courts necessarily have jurisdiction over the
parties to that dispute.”). Instead, we must look to Dean’s intentional conduct
related to the suit to determine whether it creates a “substantial connection” with
the forum state and the operative facts of the litigation. See Walden, 134 S. Ct. at
1121; Burger King, 471 U.S. at 475; Kelly, 301 S.W.3d at 657–58.
In support of his motion to vacate, Dean presented undisputed evidence that
he was a Texas resident and president of Infinity, a Texas limited liability
company. Dean denied having any interest in any business in Alabama, or
personally conducting business in Alabama with Jackson or anyone else. Dean also
testified that he had only been to Alabama twice, when driving through the state
while on family vacations. Dean testified that Infinity contracted with Jackson to
market its products in several states, including Alabama, and that Coursen, the
primary contact for Infinity’s marketers, negotiated Jackson’s contract. Dean also
testified that his contacts with Jackson were limited, consisting of occasional
communications by phone, email, and fax concerning Infinity’s business. Dean
denied meeting with Jackson in Alabama.
Jackson averred generally that she had a contractual relationship with Dean
and that Dean paid her commissions in Alabama, but Dean testified that her
contract was with Infinity and that he was not a party to the contract. Dean also
testified that Infinity was formed as a limited liability company for the purpose of
protecting its members from personal liability, and that all of his contacts with
Jackson in Alabama were on behalf of Infinity. Additionally, the 2007 email from
Dean to Jackson, on which Jackson relies for the proposition that Dean hired her,
reflects that it was sent by Dean in his capacity as president of Infinity. 1 The trial
1
Further, Dean’s 2007 email reveals that Dean hired Jackson after meeting her in New
13
court reasonably could have resolved any conflicts in the evidence to form a firm
belief or conviction that Dean did not individually contract with Jackson and that,
at all times, Dean was acting on behalf of Infinity on those occasions he
communicated with her.
Jackson’s remaining evidence shows that Infinity contracted with her to
work as an independent marketing representative in an area that included Alabama
and several other states. Over the next three years, Dean, as Infinity’s president,
periodically communicated with Jackson concerning Infinity’s business either from
Texas or elsewhere by phone, email, and fax directed to Jackson in Alabama.
Significantly, Jackson did not allege or present any evidence that Dean engaged in
any tortious conduct in Alabama. See Kelly, 301 S.W.3d at 660–61. Although
Jackson also asserted that she relied on false statements made by Dean that injured
her in Alabama, mere injury to the forum resident is not a sufficient connection to
the forum. Walden, 134 S. Ct. at 1125; Kelly, 301 S.W.3d at 661.
On this record, we conclude that Dean did not purposely avail himself of the
privilege of conducting activities in his personal capacity in Alabama and that no
substantial connection existed between Dean’s occasional, business-related
contacts with Jackson on behalf of Infinity and Jackson’s tort claims. See Walden,
134 S. Ct at 1121–23; Burger King, 471 U.S. at 475; Kelly, 301 S.W.3d at 661;
Nat’l Indus. Sand Ass’n, 897 S.W.2d at 773–74. Because Dean demonstrated that
he did not have sufficient minimum contacts with the State of Alabama to permit
the court in that forum to exercise jurisdiction over him, Dean met his burden to
prove by clear and convincing evidence that full faith and credit should not be
York, and there is no allegation or evidence that Dean purposely recruited Jackson because she
resided in Alabama.
14
afforded to the Alabama judgment. We hold that the trial court did not abuse its
discretion by granting Dean’s motion to vacate.
CONCLUSION
We overrule Jackson’s issue and affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices McCally, Brown, and Wise.
15