David Pearl v. Dale Abshire

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-286-CV
DAVID PEARL APPELLANT
V.
DALE ABSHIRE APPELLEE
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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This is an interlocutory appeal from the trial court’s order denying
appellant David Pearl’s special appearance and motion to dismiss an internet
defamation claim filed by appellee Dale Abshire. We reverse the trial court’s
order and dismiss the case.
1
… See Tex. R. App. P. 47.4.
I. Background Facts
Dale Abshire brought suit against David Pearl alleging that Pearl made
several defamatory statements on the Yahoo! Finance AXA internet “message
board” or “bulletin board” (the Message Board) between March 16, 2006, and
October 27, 2006. Those statements included language of a graphic sexual
nature and at times referenced Abshire’s prior employment in Texas, Abshire’s
alleged sexual harassment of women in the workplace in Texas, and Abshire’s
alleged resulting termination. One such statement reads:
Dale Abshire, former MONY agent based in Texas was found guilty
of findling [sic] chicks in the FT. [sic] Worth office.
Now, Mr. Abshire has been spotted in the Belvue psych. ward,
recovering from the BUTT pounding MONY gave him.
YEP, Dale Abshire.
Another allegedly defamatory statement by Pearl reads in part:
Yes, my name is Dale Abshire. I was terminated from MONY in the
mid 1990's, because I couldn’t keep my penis in my pants. I
sexually harassed many women in the Texas offices, and was
termianted [sic] for cause.
Prior to and during this period of time, Abshire had posted numerous
messages on the Message Board accusing MONY (Mutual of New York), or its
successor AXA, of conspiring with numerous political figures to commit
fraudulent and illegal activities. Abshire posted these messages to increase
2
traffic to his websites detailing his allegations of conspiracy and illegal activity
by MONY and AXA. Pearl is an employee of AXA and a resident of Kings Park,
New York, and he does not dispute that he made the statements of which
Abshire complains in response to Abshire’s comments about AXA and MONY.
It is undisputed that Pearl was physically located at his home in New York
when making the alleged statements, that Abshire was a resident of Texas at
all times relevant to the litigation, and that Pearl had been provided information
that Abshire resided in Texas. It is further undisputed that Pearl’s alleged
contacts with Texas are limited to his Message Board postings referencing
Texas and that Pearl has never maintained a bank account in Texas, conducted
personal business within Texas, knowingly purchased any tangible items or
other personal property from Texas, paid any taxes in Texas, or owned, leased,
rented, or controlled any real or personal property in Texas.
Based on these undisputed facts, Pearl filed a special appearance in which
he claimed that the court lacked personal jurisdiction over him and moved for
dismissal. Abshire alleged in response that Pearl “did business” in Texas by
committing a tort, in whole or in part, in Texas and that Pearl’s Message Board
3
statements established jurisdiction in Texas because they expressly mention
Texas and were aimed at Texas readers, including Abshire.2
Following a hearing, the trial court denied Pearl’s special appearance
without making any findings of fact or conclusions of law. This interlocutory
appeal followed.3
II. Burden of Pleading and Standard of Review
The plaintiff bears the initial burden of pleading sufficient allegations to
bring a nonresident defendant within the provisions of the Texas long-arm
statute.4 Upon filing a special appearance, the nonresident defendant assumes
the burden of negating all bases of personal jurisdiction alleged by the plaintiff.5
In other words, the defendant must disprove the existence of minimum
contacts sufficient to establish personal jurisdiction over it—general, specific,
2
… At no point has Abshire specifically alleged whether Texas courts have
general or specific jurisdiction, or both, over Pearl. However, Abshire has not
made any attempt to establish, and we find no evidentiary basis for, general
jurisdiction.
3
… See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon 2008).
4
… Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.
2002); Glencoe Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157, 163
(Tex. App.—Fort Worth 2008, no pet.).
5
… Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807
(Tex. 2002), cert. denied, 537 U.S. 1191 (2003); Glencoe Capital, 269 S.W.3d
at 163.
4
or both—as alleged by the plaintiff.6 Absent allegations of any specific,
purposeful act through which the defendant can be said to have sought a
benefit by availing itself of the jurisdiction, evidence that a defendant is a
nonresident is sufficient to meet its burden.7
Whether a trial court has personal jurisdiction over a defendant is a
question of law.8 However, a trial court may be required to resolve disputed
questions of fact before resolving the jurisdiction issue. 9 When the trial court
does not issue express findings of fact and conclusions of law, and the record
on appeal includes both the reporter’s record and the clerk’s record, the trial
court’s implied findings are not conclusive and may be challenged for their
factual and legal sufficiency.10 If findings of fact are not issued, the reviewing
court should assume that the trial court found all factual disputes favorable to
6
… Am. Type Culture Collection, 83 S.W.3d at 807; Glencoe Capital, 269
S.W.3d at 163.
7
… Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785
(Tex. 2005); Glencoe Capital, 269 S.W.3d at 163.
8
… Moki Mac, 221 S.W.3d at 574; BMC Software, 83 S.W.3d at 794;
Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154, 160–61 (Tex.
App.—Fort Worth 2008, no pet.).
9
… BMC Software, 83 S.W.3d at 794; Glencoe Capital, 269 S.W.3d at
163–64.
10
… BMC Software, 83 S.W.3d at 795; Glencoe Capital, 269 S.W.3d at
164; Luxury Travel Source, 276 S.W.3d at 161.
5
its order. 11 We may review the trial court’s resolution of disputed fact issues
for legal and factual sufficiency under the same standards of review that we
apply in reviewing a jury’s or trial court’s findings of fact at trial. 12 If the trial
court’s express or implied findings are supported by sufficient evidence, or if
the material facts are undisputed, we decide as a matter of law whether those
facts negate all bases for personal jurisdiction.13
III. Personal Jurisdiction
Texas courts may assert personal jurisdiction over a nonresident
defendant 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.14
11
… Am. Type Culture Collection, 83 S.W.3d at 806; BMC Software, 83
S.W.3d at 795 (noting that simply more than a scintilla of evidence will defeat
a no-evidence challenge).
12
… Luxury Travel Source, 276 S.W.3d at 161.
13
… BMC Software, 83 S.W.3d at 795–98; Glencoe Capital, 269 S.W.3d
at 164.
14
… Moki Mac, 221 S.W.3d at 574; Luxury Travel Source, 276 S.W.3d
at 161.
6
A. Texas Long-Arm Statute
The Texas long-arm statute governs Texas courts’ exercise of jurisdiction
over nonresident defendants.15 That statute permits Texas courts to exercise
jurisdiction over a nonresident defendant who “does business” in Texas. 16
Pertinent to this case, a nonresident “does business” in Texas if it “commits a
tort in whole or in part in this state.” 17
B. Due Process and Minimum Contacts
Even if a nonresident’s activities constitute “doing business” under the
Texas long-arm statute, Texas courts may exercise personal jurisdiction over a
nonresident defendant only “as far as the federal constitutional requirements of
due process will allow.” 18 Therefore, the requirements of the Texas long-arm
statute are satisfied if an assertion of jurisdiction accords with federal
15
… Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045 (Vernon 2008);
BMC Software, 83 S.W.3d at 795; Luxury Travel Source, 276 S.W.3d at 161.
16
… Tex. Civ. Prac. & Rem. Code Ann. § 17.042; BMC Software, 83
S.W.3d at 795; Luxury Travel Source, 276 S.W.3d at 161.
17
… Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2); Moki Mac, 221
S.W.3d at 574. The list of activities set forth in section 17.042 is not
exclusive. BMC Software, 83 S.W.3d at 795.
18
… Moki Mac, 221 S.W.3d at 575 (quoting Guardian Royal Exch.
Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.
1991)).
7
due-process limitations. 19 Under federal due-process requirements, personal
jurisdiction is proper 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.” 20
Minimum contacts are sufficient for personal jurisdiction when the
nonresident defendant “purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of
its laws.” 21 The Texas Supreme Court states that there are three parts to a
“purposeful availment” inquiry:
(1) Only the defendant’s contacts with the forum are relevant, not
the unilateral activity of another party or a third person;22
(2) The contacts relied upon must be “purposeful” rather than
merely fortuitous; 23 and
19
… Moki Mac, 221 S.W.3d at 575.
20
… Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154,
158 (1945) (citation omitted); see also Moki Mac, 221 S.W.3d at 575.
21
… Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240
(1958) (quoting Int'l Shoe Co., 326 U.S. at 319, 66 S. Ct. at 159); Moki Mac,
221 S.W.3d at 575; Michiana, 168 S.W.3d at 784.
22
… Moki Mac, 221 S.W.3d at 575; Michiana, 168 S.W.3d at 785 (citing
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183
(1985)); Luxury Travel Source, 276 S.W.3d at 162.
23
… Moki Mac, 221 S.W.3d at 575; Michiana, 168 S.W.3d at 785
(quoting Burger King, 471 U.S. at 475, 105 S. Ct. at 2183); see also Luxury
8
(3) The “defendant must seek some benefit, advantage or profit by
‘availing’ itself of the jurisdiction.” 24
The nonresident defendant’s conduct must satisfy each of these three criteria
to establish jurisdiction in the forum state. 25
IV. Purposeful Availment
In one issue, Pearl argues that the trial court erred by denying his special
appearance because he did not purposefully avail himself of the privilege of
conducting activities in Texas. He contends that his contacts with Texas were
initiated by Abshire and, thus, fortuitous rather than purposeful and that he did
not purposefully direct his comments to a Texas forum.
In Michiana the Texas Supreme Court said:
For half a century, the touchstone of jurisdictional due process has
been “purposeful availment.” Since Hanson v. Denckla, “it is
essential in each case that there be some act by which the
defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and
protections of its laws.” 26
Travel Source, 276 S.W.3d at 162.
24
… Moki Mac, 221 S.W.3d at 575 (quoting Michiana, 168 S.W.3d at
785); see also Luxury Travel Source, 276 S.W.3d at 162.
25
… See, e.g., Michiana, 168 S.W.3d at 785.
26
… Michiana, 168 S.W.3d at 784 (citing Hanson v. Denckla, 357 U.S.
at 253, 78 S. Ct. at 1240) (emphasis supplied in the Michiana opinion).
9
In determining purposeful availment, the nonresident’s actions must not be the
result of the actions of another party or a nonparty, nor may they be a mere
fortuity: “a defendant will not be haled into a jurisdiction solely based on
contacts that are ‘random, isolated, or fortuitous.’” 27
To determine whether internet activity constitutes purposeful availment,
Texas courts have characterized such activity within one of three categories on
a sliding scale.28 “At one end of the scale are websites clearly used for
transacting business over the Internet such as entering into contracts and
knowing and repeated transmitting of files of information, which may suffice
to establish minimum contacts within a state.” 29 At the other end are “passive”
websites used only for advertising over the internet, “which are not sufficient
to establish minimum contacts even though they are accessible to residents of
27
… Id. at 785 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
774, 104 S. Ct. 1473, 1478 (1984)).
28
… Michel v. Rocket Eng'g Corp., 45 S.W.3d 658, 677 (Tex. App.—Fort
Worth 2001, no pet.); see also Johns Hopkins Univ. v. Nath, 238 S.W.3d 492,
501–02 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); J.A. Riggs
Tractor Co. v. Bentley, 209 S.W.3d 322, 332 (Tex. App.—Texarkana 2006, no
pet.).
29
… Michel, 45 S.W.3d at 677.
10
a particular state.” 30 In the middle are “interactive” websites, in which a
potential customer and a host computer may exchange information.31
The internet message board Pearl used to publish his statements is an
interactive website that allows users to post and read information.32 Thus, we
determine whether purposeful availment with the forum exists based on the
type and degree of interaction between Pearl and the board.33
Based on our review of the record, we conclude that Pearl’s internet
connections with Texas were in fortuitous response to the postings of a Texas
resident, Abshire. By his own admission, Abshire purposefully posted
messages in an attempt to prompt Message Board readers like Pearl to
respond,34 and he acknowledged that his posts had, from time to time,
provoked vitriolic responses. There is no evidence that Pearl ever posted any
message about Abshire, except in response to, and shortly following, an
initiating post by Abshire. Although some statements reference Texas, there
30
… Id.
31
… Id.
32
… See generally Revell v. Lidov, 317 F.3d 467, 472 (5th Cir. 2002)
(noting that, because “the [web site’s] visitor may participate in an open forum
hosted by the website,” it “is thus interactive, and we must evaluate the extent
of this interactivity”).
33
… See Michel, 45 S.W.3d at 677.
34
… Pearl argues that Abshire is thus a “troll” or an “internet troll.” We
do not find this label particularly useful, but we do note that Abshire’s stated
intent to prompt a response from among the Message Board’s readers is
significant.
11
is no evidence that Pearl directed his statements at Texas other than the fact
that Abshire happened to be located in Texas at the time Pearl’s messages
were posted. Because Pearl’s internet contacts were in response to Abshire’s
posts, it is merely fortuitous that Abshire is a Texas resident and was located
in Texas when Pearl posted his statements. We, therefore, hold that Pearl’s
internet contacts with Texas do not constitute purposeful availment under
Michiana. 35
V. Conclusion
For the foregoing reasons, we reverse the trial court’s denial of Pearl’s
special appearance and dismiss the case.36
PER CURIAM
PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
DELIVERED: July 9, 2009
35
… See Michiana, 168 S.W.3d at 781–92 (finding no purposeful contact
because the nonresident defendant’s sale in Texas resulted from the mere
fortuity that the plaintiff happened to reside in Texas and not from any
affirmative efforts by the defendant). Because we hold that the contacts
Abshire relies on were merely fortuitous, we do not address whether Pearl
sought some benefit, advantage, or profit by the contact. See Tex. R. App. P.
47.1; Michiana, 168 S.W.3d at 785.
36
… Abshire asserts in a cross-point that the trial court improperly
admitted Pearl’s affidavit testimony over objection because it “contained legal
conclusions, hearsay statements and statements relating to analysis and opinion
testimony of posting data conducted after his deposition.” Because the
objected to testimony is duplicative of the undisputed facts recited herein, we
need not reach Abshire’s cross-point. See Tex. R. App. P. 47.1.
12