Gordon & Doner, P.A. v. Jeffrey Joros

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-120-CV
GORDON & DONER, P.A. APPELLANT
V.
JEFFREY JOROS APPELLEE
------------
FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
I. Introduction
Is a Florida law firm that referred a Florida resident’s case to a Texas
lawyer for filing in New York subject to personal jurisdiction in Texas? Because
we hold that the Florida firm did not have sufficient minimum contacts with
Texas to support the exercise of specific jurisdiction over it by a Texas court,
we answer the question “no.” We reverse the trial court’s order denying the
Florida law firm’s special appearance and render judgment dismissing Appellee’s
claims against the Florida law firm for lack of personal jurisdiction.
II. Background
Appellee Jeffrey Joros (“Joros”), a Florida resident, sued Appellant
Gordon & Doner, P.A. (“Gordon”), a Florida law firm, as well as Bailey & Galyen
f/d/b/a Bailey, Galyen & Gold (“Bailey”), a Texas law firm; Phillip Galyen, P.C.,
a Texas law firm; and Robert Schwartz, an attorney and Texas resident, for
professional negligence, DTPA violations, breach of fiduciary duty, and fraud.
Gordon filed a special appearance with its original answer.
A. Joros’s Allegations
Joros’s first amended original petition alleged that he retained Gordon to
represent him in claims against Eli Lilly arising out of injuries involving the drug
Zyprexa. Suit was to be filed in multidistrict litigation pending in the Eastern
District of New York.1 Thereafter, he alleged, Gordon referred Joros’s case to
Bailey in Texas to file his claims in the litigation pending in New York.
Allegedly, Gordon entered into a written contract with Bailey to jointly represent
1
… The United States Judicial Panel on Multidistrict Litigation established
an MDL proceeding for Zyprexa litigation in 2004 and ordered Zyprexa-related
claims transferred to the United States District Court for the Eastern District of
New York for pretrial proceedings. See In re Zyprexa Prods. Liab. Litig., 314
F. Supp. 2d 1380, 1382 (J.P.M.L. 2004).
2
Joros. According to Joros, Bailey was to act as lead counsel for Joros, and a
substantial portion of the legal services concerning Joros’s case was to be
performed by Bailey in Texas. Gordon would remain jointly responsible for
Joros’s case.
Joros pleaded that the “[d]efendants” told him that they would soon file
suit in his case, that later they told him that he had been “included in the first
round of settlements in the Zyprexa litigation,” and that still later they told him
that he was part of a second round of settlements concerning the Zyprexa
litigation. However, Joros asserted, he eventually discovered that his claim
was never filed.2
B. Gordon’s Special Appearance
Gordon filed a special appearance alleging that Gordon was a business
entity formed under Florida law and has never done business in Texas. Gordon
also alleged that Gordon:
2
… Further, Joros alleged on information and belief that the defendants
solicited other Zyprexa cases with the intent to refer these cases to other firms
and that the defendants never intended to fully litigate any of these cases but
intended to file them and negotiate an aggregate settlement. Joros alleged that
a conflict of interest emerged due to the numerous Zyprexa clients the
defendants had secured and that the defendants failed to disclose the conflict
to Joros.
3
• is not a resident of Texas and is not required to maintain, nor
does it maintain, a registered agent for service in Texas;
• does not engage in, and has never engaged in, any business
in Texas;
• has not done business in Texas within the meaning of Texas
Civil Practices and Remedies Code section 17.042;
• has not committed any torts, in whole or in part, in Texas;
• has no employees, servants, or agents in Texas;
• has not maintained a place of business in Texas and has
never maintained offices or any other type of facility in
Texas;
• does not own any real or personal property in Texas;
• does not maintain any bank accounts, telephone numbers, or
post office boxes in Texas; and
• does not pay any taxes to any local or state taxing
authorities within Texas.
Robert E. Gordon, a partner in the Gordon law firm, attached an affidavit
stating that he resides in Florida and is licensed to practice law in Florida, that
he is not licensed to practice law in Texas, that none of the other lawyers in the
Gordon law firm are licensed in Texas, and that he does not own property in
Texas, does not maintain bank accounts in Texas, and has never represented
Texas residents in litigation in Texas. Further, he averred that Gordon has
never advertised in Texas, has never represented clients in litigation or
4
transactions in Texas, and that the attorney-client relationship between Gordon
and Joros was initiated and subsequently conducted in Florida.
In its brief in support of its special appearance, Gordon argued that it was
a Florida law firm, that Joros was a Florida resident, and that all contacts
between Joros and Gordon that give rise to Joros’s claims occurred in Florida.
Gordon stated that its sole connection with the state of Texas pertaining to
Joros’s claim was that it entered into a joint-representation agreement with
Bailey on Joros’s behalf relating to the Zyprexa litigation.
C. Joros’s Response to Gordon’s Special Appearance
In his response to Gordon’s special appearance, Joros attached copies of
the contract for legal services signed by Joros and Gordon, a “statement of
client’s rights for contingency fees” signed by Joros and Gordon, and Joros’s
written consent for Gordon to associate Bailey in his claims.
D. Stipulations of the Parties
Also attached were stipulations between Gordon and Joros that the
contract, the fee agreement, and the consent to associate were true and correct
copies. The parties’ stipulations also provided that Bailey had been associated
as “lead counsel” in connection with Joros’s claim, that Joros’s claim was not
to be filed in the state of Texas but in the multi-district litigation pending
outside of Texas, that much of the “legal work provided by [Bailey] was going
5
to be performed in Texas,” and that Gordon had referred several other claims
involving the use of Zyprexa to Bailey.
E. The Ruling
After a hearing at which no additional evidence was presented, the trial
court denied Gordon’s special appearance, from which ruling Gordon has
brought this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(7) (Vernon 2008) (allowing interlocutory appeal from denial of
special appearance).
III. Standard of Review
Whether a trial court has personal jurisdiction over a defendant is a
question of law that we review de novo. Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569, 574 (Tex. 2007); BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789, 794 (Tex. 2002). In reviewing a trial court’s ruling on a
special appearance, we examine all of the evidence in the record to determine
if the defendant negated all possible grounds for personal jurisdiction.
Bergenholtz v. Cannata, 200 S.W.3d 287, 292 (Tex. App.—Dallas 2006, no
pet.). The trial court must frequently resolve underlying fact questions before
deciding the jurisdictional issue. BMC Software Belgium, 83 S.W.3d at 794.
If the trial court does not issue findings of fact, we imply all such findings
necessary to support the judgment that are supported by the evidence. See id.
6
at 795. When a reporter’s record is included in the appellate record, the trial
court’s findings—either express or implied—are not conclusive and are subject
to challenge for legal and factual sufficiency. See id. However, the facts in
this appeal are undisputed. Although the trial court held a hearing on Gordon’s
special appearance and considered the pleadings, evidence, and argument of
counsel, there is no reporter’s record. Therefore, we will presume that the
special appearance hearing was nonevidentiary and that the trial court
considered only the evidence filed with the clerk. See Michiana Easy Livin’
Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005).
IV. Personal Jurisdiction
A. Applicable Law
Texas courts may assert personal jurisdiction over a nonresident if
jurisdiction is authorized by the Texas long-arm statute and is consistent with
federal and state constitutional due-process guarantees. Am. Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002), cert. denied,
537 U.S. 1191 (2003); see Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045
(Vernon 2008). The long-arm statute allows Texas courts to “reach as far as
the federal constitutional requirements of due process will allow.” Am. Type
Culture Collection, Inc., 83 S.W.3d at 806 (quoting Guardian Royal Exch.
Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.
7
1991)); see also Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (listing acts
constituting “doing business” within state for purposes of long-arm statute).
Thus, a Texas court may only exercise personal jurisdiction over a nonresident
if doing so complies with federal due process requirements. See Moki Mac,
221 S.W.3d at 575. Those requirements are satisfied if (1) the nonresident
defendant has established minimum contacts with the forum state and (2) the
exercise of jurisdiction comports with “traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.
Ct. 154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct.
339, 343 (1940)).
1. Nature of Contacts with Texas
The contacts relevant to a jurisdictional analysis are those by which 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.” Moki Mac, 221 S.W.3d at 575 (quoting Hanson v. Denckla, 357
U.S. 235, 253, 78 S. Ct. 1228, 1240 (1958)); Michiana, 168 S.W.3d at 784.
The “touchstone” of jurisdictional due process analysis is “purposeful
availment.” Michiana, 168 S.W.3d at 784 (citing Hanson, 357 U.S. at 253, 78
S. Ct. at 1240). It is essential in each case that there be some act by which
the defendant purposefully availed itself of the privilege of conducting activities
8
within the forum state, thus invoking the benefits and protections of its laws.
Id.
There are at least three aspects to the “purposeful availment” inquiry:
first, only the defendant’s contacts with the forum are relevant, not the
unilateral activity of another party or third person; second, the contacts with
the forum must be “purposeful” rather than “random, isolated, or fortuitous”;
and third, the “defendant must seek some benefit, advantage[,] or profit by
‘availing’ itself of the jurisdiction.” Moki Mac, 221 S.W.3d at 575; Michiana,
168 S.W.3d at 785. What is important is the quality and nature of the
defendant’s contacts with the forum state, rather than their number. Am. Type
Culture Collection, Inc., 83 S.W.3d at 806.
2. Specific and General Jurisdiction
A nonresident defendant’s contacts with the forum state meet the federal
due process minimum contacts standard if the contacts establish either general
or specific jurisdiction. BMC Software Belgium, 83 S.W.3d at 795–96. Joros
relies only upon specific jurisdiction in this case; he concedes general
jurisdiction is lacking. When specific jurisdiction is alleged, the focus is on the
relationship between “the defendant, the forum[,] and the litigation.” Moki
Mac, 227 S.W.3d at 575 (quoting Guardian Royal, 815 S.W.2d at 226).
9
The necessary relationship between the defendant, the forum and the
litigation requires that a court exercise “specific” jurisdiction only in a suit
“arising out of or related to the defendant’s contacts with the forum.”
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8, 104
S. Ct. 1868, 1872 n.8 (1984); see also CSR Ltd. v. Link, 925 S.W.2d 591,
595 (Tex. 1996). As to the “relatedness” element, there must be “a
substantial connection between [the nonresident’s contacts with the forum] and
the operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585.
B. Specific Jurisdiction Analysis
Gordon contends that minimum contacts for specific jurisdiction in Texas
are lacking because, under the undisputed facts, the claims asserted by Joros
do not arise out of or relate to any contacts by Gordon with Texas but arise
solely out of an agreement entered into in Florida between Gordon and Joros,
both Florida residents, for representation in the Zyprexa claims to be filed in
New York. Joros responds that Gordon referred the case to Bailey, the Texas
law firm, pursuant to an agreement between Gordon and Bailey in which it was
understood that a substantial portion of the legal services would be performed
in Texas and in which Gordon agreed to be jointly responsible for the legal
services of the Texas law firm; thus, Gordon should have anticipated being
10
subject to Texas jurisdiction based on its purposeful contact in entering into
that agreement.
Joros first argues that Gordon admitted in the trial court that it entered
into a written contract with Bailey, the Texas law firm, part of which was to be
performed in Texas, albeit by Bailey. Joros relies upon the language of the
Texas long-arm statute providing that a nonresident does business in Texas if
the nonresident “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 § 17.042. Joros reasons that, because there is no
dispute that Gordon entered into a contract with Bailey and because the statute
provides that a nonresident is doing business if “either party” is to perform the
contract in whole or in part in Texas, Gordon was engaged in doing business
in Texas within the meaning of the statute.
Gordon counters that there is no contract between Gordon and Bailey in
evidence. This line of argument by Gordon is puzzling. As Joros points out,
Gordon admitted in its brief in the trial court that a “joint-representation
agreement” did exist between it and Bailey, and the parties even stipulated to
11
its relevant terms. Indeed, the arguments of both parties center almost entirely
on that agreement.3
We agree with Joros that the agreement between Gordon and Bailey
satisfies the requirement of the Texas long-arm statute that Gordon was “doing
business” in Texas by entering into a contract with Bailey, a Texas resident, to
be performed in part by Bailey in Texas. Tex. Civ. Prac. & Rem. Code Ann.
§ 17.42 (providing that nonresident is doing business here if “either party” is
to perform the contract in whole or in part in Texas). But the Texas long-arm
statute reaches only “as far as the federal constitutional requirements of due
process will allow.” Moki Mac, 227 S.W.3d at 575 (quoting Guardian Royal,
815 S.W.2d at 226). The exercise of jurisdiction by a Texas court over Gordon
must still meet the minimum contacts requirement of federal due process. Id.
(holding negligence and misrepresentation claims based on sending brochures
and release forms to Texas residents that satisfied doing-business requirement
of statute were nevertheless insufficient to establish for jurisdiction absent
minimum contacts).
3
… See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568
(Tex. 2001) (holding statements in summary judgment response and counter-
motion to be judicial admissions); see also City Nat’l Bank v. United States, 907
F.2d 536, 544 (5th Cir. 1990) (noting admissions of fact in a summary
judgment brief could be used to determine whether there is a genuine issue of
material fact).
12
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. See, e.g., Olympia Capital Assocs.,
L.P. v. Jackson, 247 S.W .3d 399, 418 (Tex. App.—Dallas 2008, no pet.)
(holding mere existence of a contract between a nonresident and a resident of
Texas—including communications related to the execution and performance of
that contract—insufficient to support specific jurisdiction); Weldon-Franke v.
Fisher, 237 S.W.3d 789, 796 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(holding contracting with and accepting payment from Texas residents
insufficient to support minimum contacts); Trigeant Holdings, Ltd. v. Jones,
183 S.W.3d 717, 725 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); see
also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478–79, 105 S. Ct. 2174,
2185–86 (1985) (holding that merely contracting with resident of forum state
is insufficient to subject nonresident to the forum’s jurisdiction).
Joros urges that the terms of the agreement providing for the majority of
the legal services to be performed in Texas by Bailey the resident of Texas,
should be considered in the jurisdictional analysis. To the contrary, what Bailey
agreed to do in Texas is not relevant. The first requirement of “purposeful
availment” is that only the defendant’s contacts with the forum are relevant,
not the unilateral activity of another party or third person. Michiana, 168
13
S.W.3d at 785 (“[I]t is only the defendant’s contacts with forum that count.”);
Turner Shilling v. Gaunce Mgt., 247 S.W.3d 447, 456 (Tex. App.—Dallas
2008, no pet.) (holding that performance of contract by plaintiff would
“essentially be accomplished in Texas” not relevant to jurisdictional analysis);
Bergenholtz, 200 S.W.3d at 295 (stating actions by plaintiffs of receiving legal
advice, billings, and correspondence in Texas not relevant to jurisdiction over
nonresident lawyer); see also Moncrief Oil Int’l, Inc. v. OAO Gazprom, 481 F.3d
309, 311 (5th Cir. 2007) (concluding that merely contracting with resident of
forum state, even coupled with performance by resident party of forum state,
did not establish minimum contacts where defendant did not perform any of its
own obligations there, contract did not require performance there, and purpose
or hub of contract was centered in Russia). Bailey’s performing the legal
services in Texas is not a purposeful contact of Gordon. Nor do we see how
the provision for Bailey’s performance of services in Texas makes it reasonably
foreseeable to Gordon that he was subject to being haled into a Texas court,
as Joros argues. See Michiana, 168 S.W.3d at 785 (noting minimum contacts
analysis focuses solely on actions and reasonable expectations of defendant).
Neither do we believe that the second element required for “purposeful
availment” is met, that is, that the contact of the defendant must not be simply
random, isolated, or fortuitious. See Moki Mac, 221 S.W.3d at 575; Moncrief
14
Oil, 481 F.3d at 313 (holding that “mere fortuity” that one party happened to
be Texas resident, coupled with that party’s unilateral performance in Texas,
not sufficient to confer jurisdiction where agreements were executed in Russia
with a Russian corporation concerning a Russian joint venture to develop a
Russian oil field); see also Myers v. Emery, 697 S.W.2d 26, 32 (Tex.
App.—Dallas 1985, no writ) (holding receipt of mail and long-distance calls in
Texas from defendant as well as representation of other clients in Texas
“minimal and fortuitious”). A letter from Bailey to Joros in the record indicates
that the case was referred to Bailey by Gordon solely because of Bailey’s
experience in pharmaceutical litigation.
The parties do not address the third requirement of “purposeful
availment,” that is, that the defendant must seek some “benefit, advantage[,]
or profit by ‘availing’ itself of the jurisdiction.” Moki Mac, 221 S.W.3d at 575.
It appears that Gordon associated Bailey to handle the filing of the suit in New
York because of his experience rather than because of his practice or location
in Texas. Joros points to his pleadings alleging that Gordon entered into a joint
venture with Bailey by virtue of his agreement with Bailey because he
specifically agreed to retain joint responsibility for the legal services to be
rendered by Bailey in Texas. Joros argues that this agreement subjects Gordon
to joint liability for Bailey’s legal services to be rendered on Joros’s behalf in
15
Texas and, therefore, constitutes sufficient purposeful availment by Gordon of
the privilege of doing business in Texas to subject Gordon to jurisdiction here.
This argument conflates personal jurisdiction with liability on the merits of
Joros’s claim.
Whether Gordon entered into a joint venture with Bailey or otherwise
retained joint responsibility for Bailey’s conduct in Texas is relevant only to
Gordon’s liability on the merits. It does not constitute purposeful availment by
any activities by Gordon in Texas so as to establish minimum contacts. See,
e.g., PHC-Minden, L.P. v. Kimberly-Clark Corp. 235 S.W.3d 163, 174 (Tex.
2007) (noting personal jurisdiction involves due process considerations that
may not be overridden by statutes or the common law and distinguishing
factors relevant to piercing the corporate veil for liability purposes from those
relevant to minimum contacts, citing In re Baan Co. Sec. Litig., 245 F. Supp.
2d 117, 129 (D.D.C. 2003) (stating liability under the Securities Act “cannot
on its own support personal jurisdiction” as such an approach “impermissibly
conflates statutory liability with the Constitution’s command that the exercise
of personal jurisdiction must be fundamentally fair”)); Langston, Sweet &
Freese, P.A. v. Ernster, 255 S.W.3d 402, 411 (Tex. App.—Beaumont 2008,
pet. denied) (“A party’s liability alone does not establish jurisdiction of the
forum.”); see also AT & T Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586,
16
591 (9th Cir. 1996) (stating “liability is not to be conflated with amenability to
suit in a particular forum” because personal jurisdiction has constitutional
dimensions).
Joros argues that Gordon should have foreseen that, by entering into the
agreement for joint representation with Bailey, he might be held liable for
Bailey’s performance or failure to perform legal services in Texas. But imputing
Bailey’s conduct to Gordon still results only in liability based on a legal theory
rather than actual contacts with Texas by Gordon. Imputed contacts do not
suffice to establish minimum contacts by the Gordon firm, itself, with Texas
when the agreement for co-representation between Gordon and Bailey did not
focus on litigation in Texas. See Langston, 255 S.W.3d at 411 (holding
partnership’s contacts with state not imputed to individual nonresident partner
to establish personal jurisdiction absent evidence partner participated in
litigation in Texas or had other individual contacts); see also Moni Pulo Ltd. v.
Trutec Oil & Gas, Inc., 130 S.W.3d 170, 175 (Tex. App.—Houston [14th Dist.]
2004, pet. denied) (op. on reh’g) (holding acts of one joint venturer in business
that did not focus on Texas “did not create jurisdiction, as opposed to liability,
of other—that is, there are no imputed minimum contacts”).
Jurisdiction based on a joint venture agreement between lawyers was
rejected in Eakin v. Acosta, in which Acosta, a Florida lawyer, represented
17
Eakin, a Texas resident, in a lawsuit filed in Florida. 21 S.W.3d 405, 407 (Tex.
App.—San Antonio 2000, no pet.), abrogated in part on other grounds by BMC
Software Belgium, 83 S.W.3d at 194 n.1. An addendum to the contract of
representation between Acosta and Eakin provided that a Texas law firm would
act as consulting counsel. Id. The addendum further provided that the Texas
firm was to “work subservient to the decision making control of lead attorney
Howard Acosta,” with all legal decisions and strategies to be made by Acosta.
Id. After the Florida lawsuit was settled, a dispute developed over fees, and
Eakin sued Acosta in Texas, claiming Acosta had availed himself of Texas
jurisdiction by participating in long-distance telephone calls between Florida and
Texas, forwarding the agreement of representation to Eakin in Texas, and
entering into the joint venture with the Texas law firm. Id. The court of
appeals upheld dismissal of Acosta for lack of personal jurisdiction based on
Acosta’s uncontroverted affidavit that all legal work was performed by him in
Florida and because, despite the fee agreement, there was no evidence that
Acosta exercised any control over the Texas lawyer or made any legal decisions
or formed any strategies that affected that lawyer’s work. Id. at 410.
Joros attempts to distinguish Eakin because the uncontroverted affidavit
of the Florida lawyer in that case stated that he had performed all of his work
in Florida while the agreement here with the Texas firm provides that much of
18
the legal work was to be performed in Texas. But he overlooks Gordon’s
similar affidavit here, which was likewise uncontroverted, that Gordon
performed all of its legal services on behalf of Joros in Florida. His argument
also omits the additional undisputed language in the agreement that the legal
work to be performed in Texas would be performed by Bailey, not by Gordon.
The facts in this case are even more favorable to the nonresident lawyer
than those in Eakin because, by performing legal services on behalf of Joros in
Texas, Bailey was not acting under the control or direction of Gordon under the
agreement. While the nonresident lawyer in Eakin was to remain lead counsel,
the agreement in this case instead specified that Bailey was to act as lead
counsel, and there is also no evidence that Gordon exercised any actual control
or supervision over Bailey’s performance. Consequently, there is no basis in the
record for imputing Bailey’s conduct to Gordon as a purposeful contact with
Texas.
Joros cites the stipulation between the parties that Gordon referred other
similar cases to Bailey in Texas for filing and argues that this constitutes other
19
contacts by Gordon with Texas related to the suit.4 While the other suits may
be related because they involved Zyprexa, there is no evidence or stipulation
indicating that those other suits have any connection to the “operative facts”
of this litigation. See Moki Mac, 221 S.W.3d at 585.
Finally, Joros asserts that Gordon agreed to retain responsibility for
Joros’s case “in accordance with the Texas Rules of Professional Conduct,”
such that Gordon was bound by Texas ethical rules to maintain oversight of the
legal services rendered by Bailey and must have anticipated that he would be
subjected to Texas law. However, the reference to the Texas ethical rules is
contained in a letter addressed to Joros from Bailey, not Gordon, and refers to
the requirement that Joros be advised of the division of fees, which was
Bailey’s duty as a licensed Texas lawyer, not that of Gordon.
There is no evidence that Gordon made any trips to Texas in connection
with Joros’s representation, and no evidence of long-distance calls or
correspondence by Gordon to Bailey in connection with the agreement or the
4
… Joros also contends that he alleged that the “Defendants”
misrepresented that he was in the first and second rounds of settlements in the
Zyprexa litigation, when he was not included in either round. He argues that
his claims are thus tied directly to Bailey’s representation of Joros and the
contract between Gordon and Bailey. But any misrepresentations were made
in Texas by Bailey or in Florida by Gordon and were made to Joros in Florida.
Joros does not explain how these additional allegations strengthen his claim
that Gordon engaged in purposeful contacts in Texas.
20
suit to be filed in New York by Bailey on Joros’s behalf. The agreement
between Gordon and Bailey for Bailey to file suit on behalf of Joros stands
alone as Gordon’s sole contact with Texas. We decline to hold that this single
forum contact constitutes a purposeful availment satisfying the minimum
contacts requirement to subject Gordon to the jurisdiction of a Texas court.
Therefore, we need not reach the next question of whether that contact
constitutes a “substantial connection” with the operative facts of the lawsuit
against Gordon so as to satisfy the requirement that the contact must arise out
of and relate to the lawsuit in order to satisfy due process. Even if we did, we
would answer “no.” Joros’s claim against Gordon does not arise from or relate
to the agreement between Gordon and Bailey but from Joros’s own attorney-
client relationship with Gordon. Nor do we need to reach the second prong of
the due process inquiry, that is, whether the exercise of jurisdiction comports
traditional notions of fair play and substantial justice. We sustain Gordon’s sole
issue.
V. Conclusion
Because we conclude the trial court lacked personal jurisdiction, we
sustain Gordon’s sole issue and hold that the court erred by denying Gordon’s
special appearance. Accordingly, we reverse the order of the trial court and
21
render judgment dismissing Joros’s claims against Gordon for want of
jurisdiction.
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
DELIVERED: April 30, 2009
22