Jeff Fisher v. Eagle Rock Custom Homes Inc. and MacK Davis

Reversed and Rendered and Memorandum Opinion filed January 14, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00483-CV
JEFF FISHER, Appellant
V.
EAGLE ROCK CUSTOM HOMES INC. AND MACK DAVIS, Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2017-77671
MEMORANDUM OPINION
Jeff Fisher brings this interlocutory appeal from the trial court’s order
denying his special appearance.1 Appellees Eagle Rock Custom Homes Inc. and
Mack Davis sued Fisher for fraudulent inducement, common law fraud,
constructive fraud, and negligent misrepresentation. In his special appearance,
Fisher contended that he is a Hong Kong resident who lacks sufficient contacts
1
See Tex. R. Civ. P. 120a; Tex. Civ. Prac. & Rem. Code § 51.014(a)(7).
with Texas to support personal jurisdiction over him. Concluding that Fisher
negated all pleaded bases for jurisdiction and appellees failed to show Fisher had
sufficient contacts with Texas to support jurisdiction, we reverse the trial court’s
order denying Fisher’s special appearance and render judgment dismissing the case
for want of jurisdiction.
I. Background
In their petition, appellees asserted that Fisher is a Texas resident who
conducted business in Texas. They further alleged that appellee Eagle Rock is a
home building company that had been doing business with a company known as
Blevesco (a Fisher-related entity) when Fisher approached Eagle Rock with a
proposal for creating a joint venture with other entities Fisher controlled for the
purpose of developing properties. According to appellees, lots were to be deeded to
Eagle Rock to enable it to procure construction loans from a third party lender or
another entity Fisher controlled. As the projects progressed, problems began to
arise, such as slow funding and deeds not being transferred to Eagle Rock, causing
sales to be lost and fees to rise. Appellees allege that Fisher made false
representations regarding the lots and construction loans to mislead Eagle Rock
and Davis.2 Appellees further allege that Fisher’s failure to properly transfer
properties to Eagle Rock, adding fees to lot purchases, and taking funds that did
not belong to the entities Fisher controlled resulted in such financial losses as to
force Eagle Rock out of business and cause Davis significant debt resulting from
his personal guarantees to vendors. On this basis, appellees asserted claims against
Fisher for fraudulent inducement, common law fraud, constructive fraud, and
negligent misrepresentation.
2
Although not stated in the petition, Davis is purportedly Eagle Rock’s founder and
president.
2
In his special appearance and attached affidavit, Fisher asserted that he is a
Hong Kong resident without significant contacts with Texas. He stated that he has
lived in Hong Kong since 1997 and attached his United States tax returns and
Hong Kong identification card as proof. Fisher acknowledged that he visited his
parents a couple of times a year in Texas and that he maintained a Texas driver’s
license so that he could drive on those visits. Fisher further stated that he was
formerly a manager or investor in companies that do business in Texas, but he
personally does not own any property, have any bank accounts, or conduct any
business in the state.
Appellees responded to the special appearance by citing other Texas court
cases in which Fisher allegedly made certain statements, including that he had
bought properties in the state for himself through limited liability companies and
had requested the court to treat a particular matter as a direct action for his personal
benefit. Also, appellees asserted that in an unsworn declaration in one of these
other cases, Fisher represented his home address as being in Spring, Texas.
Appellees further stated that Fisher had numerous in person meetings with Davis
and other representatives of Eagle Rock.
The only document attached to appellees’ response was an affidavit by
Davis in which he averred that he was first introduced to Fisher at Blevesco’s
offices in Harris County, after which Blevesco and Eagle Rock entered into joint
venture agreements for the construction of new homes. According to Davis, after
several successful projects, Fisher approached Eagle Rock with a proposal for
entities owned and controlled by Fisher to provide both the lots and financing for
future projects. Eagle Rock then began the projects with various Fisher entities.
Davis further asserted that during their business dealings he had numerous in
person meetings with Fisher at the Blevesco office and at a local restaurant. Davis
3
said that Fisher was always his contact through the years of doing business with
the Fisher entities. In a reply, Fisher insisted that his attendance at any meetings
with Davis was only in his capacity as a representative of a company.
The trial court held a hearing on the special appearance at which no
witnesses testified and no exhibits were offered into evidence. During the hearing,
Fisher’s counsel acknowledged that Fisher was the managing director of several
Delaware companies that did business in Texas, purchasing lots and building on
the lots. And counsel admitted appellees’ claims might be valid against Fisher’s
companies. But he insisted that no claims were valid against Fisher in his
individual capacity because there was no proof to support allegations of alter ego
or other veil-piercing theories. Counsel further acknowledged that at the time he
made the statement or statements that were alleged to be fraudulent, Fisher was in
Texas, but it is not clear whether counsel was simply basing that on the
controverting affidavit by Davis, which he referenced, or if he was intending to
admit the truth of the contention. Fisher’s counsel further acknowledged Fisher had
filed a lawsuit in Texas against another party.
Appellees’ counsel asserted at the hearing that Fisher personally made
representations in Texas to induce appellees into the joint ventures.3 Appellees’
counsel further stated that in the course of other litigation in Harris County, Fisher
had filed affidavits representing his home address to be in Spring, Texas and had
signed a settlement agreement in Texas. It appears from the transcript that
appellees’ counsel may have handed the judge at least one purported affidavit and
the judge then handed it to Fisher’s counsel, but no such affidavit was offered or
admitted into evidence or appears in the record on appeal.4 Appellees’ counsel also
3
This was the first point at which such an allegation was made in this case.
4
Although appellees attached copies of purported court filings to their brief, these
4
indicated that he had witnesses prepared to testify that Fisher had filed for
unemployment benefits in Texas, but, as stated, no witnesses testified at the
hearing
At the conclusion of the hearing, the trial judge denied Fisher’s special
appearance. The judge did not enter findings of fact or conclusions of law.
II. Standards of Review
Whether a court has personal jurisdiction over a defendant is a question of
law we review de novo. Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142,
150 (Tex. 2013). When, as here, the trial court does not enter findings of fact or
conclusions of law, we imply all facts necessary to support the trial court’s ruling
that are supported by the evidence. Id. The ruling may be challenged for legal and
factual sufficiency. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795
(Tex. 2002).
When examining a legal-sufficiency challenge, we review the evidence in
the light most favorable to the challenged finding and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). We credit favorable evidence if a reasonable fact-finder could and
disregard contrary evidence unless a reasonable fact-finder could not. Id. at 827.
Evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the conclusion under review. Id. In a factual-sufficiency challenge, we
consider and weigh all the evidence, both supporting and contradicting the finding.
Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We will set
aside a finding for factual insufficiency only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 407.
documents are not in the appellate record and are not certified.
5
Texas courts may exercise personal jurisdiction over a nonresident if “(1) the
Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise
of jurisdiction is consistent with federal and state constitutional due-process
guarantees.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007). The Texas long-arm statute extends Texas courts’ personal jurisdiction as
far as the federal constitutional requirements of due process will permit. BMC
Software, 83 S.W.3d at 795.
Personal jurisdiction over a nonresident is constitutional when two
conditions are satisfied: (1) the 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. Id. (citing Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). Minimum contacts are sufficient for personal
jurisdiction when the nonresident purposefully avails himself 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. In 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; (2) the contacts relied on must
be purposeful rather than random, fortuitous, or attenuated; and (3) the defendant
must seek some benefit, advantage, or profit by “availing” himself of the
jurisdiction. Id. The analysis contemplates the quality and nature of the contacts,
not the quantity. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d
333, 339 (Tex. 2009). At its core, the purposeful-availment analysis seeks to
determine whether a nonresident’s conduct and connection to a forum are such that
he could reasonably anticipate being haled into court there. Moncrief Oil, 414
S.W.3d at 152.
A defendant’s contacts can vest a court with either specific or general
6
jurisdiction. BMC Software, 83 S.W.3d at 795–96. In determining whether specific
jurisdiction exists, the minimum-contacts analysis focuses on the relationship
between the defendant, the forum, and the litigation. Moki Mac, 221 S.W.3d at
575–76. Specific jurisdiction is established if the defendant’s alleged liability
arises out of, or is related to, an activity conducted within the forum. Id. at 576;
BMC Software, 83 S.W.3d at 796. For a nonresident defendant’s forum contacts to
support an exercise of specific jurisdiction, there must be a substantial connection
between those contacts and the operative facts of the litigation. Moki Mac, 221
S.W.3d at 585.
“[G]eneral jurisdiction is only present when a defendant not only has
continuous and systematic contacts with the forum state, but also has these kinds of
contacts to such an extent that they render it essentially at home in that state.”
Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72–73 (Tex. 2016). Because general
jurisdiction permits a court to exercise personal jurisdiction over a nonresident for
claims not directly linked to his contacts with the state, a general jurisdiction
inquiry requires a more demanding minimum-contacts analysis with a
“substantially higher threshold.” PHC-Minden, L.P. v. Kimberly-Clark Corp., 235
S.W.3d 163, 168 (Tex. 2007).
In a special appearance, the parties bear shifting burdens. “[T]he plaintiff
bears the initial burden to plead sufficient allegations to bring the nonresident
defendant within the reach of Texas’s long-arm statute.” Kelly v. Gen. Interior
Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). “Once the plaintiff has pleaded
sufficient jurisdictional allegations, the defendant filing a special appearance bears
the burden to negate all bases of personal jurisdiction alleged by the plaintiff.” Id.
“Because the plaintiff defines the scope and nature of the lawsuit, the defendant’s
corresponding burden to negate jurisdiction is tied to the allegations in the
7
plaintiff’s pleading.” Id. A defendant can negate jurisdiction on either a factual or a
legal basis. Id. at 659. To negate jurisdiction on a factual basis, the defendant must
“present evidence that it has no contacts with Texas, effectively disproving the
plaintiff’s allegations.” Id. To negate jurisdiction on a legal basis, a defendant may
show that even if the plaintiff’s alleged facts are true, (1) the evidence is legally
insufficient to establish jurisdiction; (2) the defendant’s contacts with Texas do not
amount to purposeful availment; (3) for specific jurisdiction, the plaintiff’s claims
do not arise from the defendant’s contacts; or (4) the exercise of jurisdiction would
offend traditional notions of fair play and substantial justice. Id.
If the nonresident defendant manages to negate the pleaded bases for
personal jurisdiction, the burden shifts back to the plaintiff to show that the court
has personal jurisdiction over the defendant. Turman v. POS Partners, LLC, 541
S.W.3d 895, 900 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Although
personal jurisdiction is generally assessed on a claim-by-claim basis, a separate
analysis for each claim is not required when jurisdiction for all claims is alleged to
arise from the same forum contacts. See Moncrief Oil, 414 S.W.3d at 150–51;
Syrian Am. Oil Corp. v. SSPD Petroleum Dev., 01–10–00224–CV, 2011 WL
1328373, at *6 (Tex. App.—Houston [1st Dist.] Feb. 24, 2011, no pet.) (mem.
op.).
III. Discussion
We begin our analysis by considering whether and how appellees met their
initial burden to plead jurisdictional facts to bring Fisher within reach of the Texas
long-arm statute. See Kelly, 301 S.W.3d at 658. As set forth above, in their
petition, appellees pleaded generally that Fisher is a Texas resident and that the
court had “jurisdiction over the parties because Defendant conduct[s] business in
Texas.” In their response to Fisher’s special appearance, appellees alleged that
8
“numerous entities doing business in Harris County . . . are alter ego’s [sic] of
Fisher. Appellees also referenced other Texas court cases in which Fisher
reportedly made appearances and certain statements, including that he had bought
properties in the state for himself through limited liability companies. Appellees
assert that in one of these cases, Fisher requested that the court treat the matter as a
direct action for his personal benefit and represented in an unsworn declaration that
his home address was in Spring, Texas. Appellees further allege that “Fisher has
had many in person meetings with Mack Davis and other employees and associates
of Eagle Rock.” These statements in the petition and response are the jurisdictional
allegations that Fisher was required to negate to be successful in his special
appearance. See, e.g., Max Protetch, Inc. v. Herrin, 340 S.W.3d 878, 883 (Tex.
App.—Houston [14th Dist.] 2011, no pet.) (explaining that courts look to the
plaintiff’s pleadings as well as the response to the special appearance to determine
the jurisdictional allegations).
In his special appearance and affidavit, Fisher averred that he is a long-time
resident of Hong Kong and does not personally own any property or conduct any
business in Texas. Fisher acknowledged that he was formerly a manager or
investor in companies that do business in Texas but again emphasized that he does
not personally conduct any business in the state. Fisher further stated that he visits
his parents in Texas a couple of times a year and has a Texas driver’s license in
order to drive when he visits.
At no point in the proceedings did appellees specify whether they were
attempting to establish that Texas has specific or general jurisdiction over Fisher or
both, but some of their allegations could be relevant to both types of jurisdiction.
Accordingly, we will analyze both options. We first note, however, that although
appellees alleged in their petition that Fisher was a Texas resident, Fisher denied
9
he was a Texas resident in his special appearance and his affidavit, and he provided
documentary evidence (tax returns and a Hong Kong identification card) to support
his assertion that he is a resident of Hong Kong. Moreover, appellees provided no
evidence supporting the assertion that Fisher is a Texas resident. Although
appellees alleged in their response that Fisher had represented in another lawsuit
that his home address is in Spring, Texas, they did not offer any supporting
evidence into the record below. Appellees suggest the trial court took judicial
notice of the records from other courts, but they cite no place in the record where
they requested the court take judicial notice or the court did so. “[A] court will take
judicial notice of another court’s records if a party provides proof of the records.”
Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per
curiam) (citing WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451,
459 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“A court cannot take
judicial notice of the records of another court in another case unless a party
provides proof of those records. . . . [Appellant] does not cite to any proof that he
provided the trial court regarding the prior lawsuit, and we have discovered none in
the record.”)). Also, although appellees attached unofficial, uncertified copies of
some documents to their brief, we are not able to consider these documents. See
Johnson v. Nat’l Oilwell Varco, LP, 574 S.W.3d 1, 20 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (“[W]e cannot consider documents attached to a brief that are
not part of the appellate record.”); see also Perez v. Williams, 474 S.W.3d 408, 419
(Tex. App.—Houston [1st Dist.] 2015, no pet.) (“The contents of an
unauthenticated or uncertified record from another court are not the type of
evidence of which the court can take judicial notice.”); Ex parte Wilson, 224
S.W.3d 860, 863 (Tex. App.—Texarkana 2007, no pet.) (“Judicial records . . . from
a domestic court other than the court being asked to take judicial notice have not
been deemed so easily ascertainable that no proof is required; they are to be
10
established by introducing into evidence authenticated or certified copies . . . .”).5
A. General Jurisdiction
As explained above, general jurisdiction contemplates whether a defendant
has such continuous and systematic contacts with the state that he is “essentially at
home in th[e] state.” Searcy, 496 S.W.3d at 72–73. A general jurisdiction inquiry
sets a “substantially higher threshold” than does an inquiry into specific
jurisdiction. PHC-Minden, L.P., 235 S.W.3d at 168. “A general jurisdiction inquiry
can be tedious, as it ‘demands . . . . that all contacts be carefully investigated,
compiled, sorted, and analyzed for proof of a pattern of continuing and systematic
activity.’” Id. at 170 (quoting Schlobohm v. Schapiro, 784 S.W.2d 355, 359 (Tex.
1990)). Four sets of appellees’ allegations appear aimed at or relevant to
establishing whether Fisher had continuous and systematic contacts with Texas:
(1) Fisher controlled several entities that did business in Texas as his alter egos,
(2) Fisher or the entities participated in lawsuits in Texas, (3) Fisher had in-person
meetings in Texas with Davis and other representatives of Eagle Rock, and
(4) Fisher visited his parents in Texas and had a Texas driver’s license.
Regarding the alter ego claims, although the burden in a special appearance
generally shifts to the defendant once the plaintiff or plaintiffs have raised
sufficient jurisdictional allegations, the burden in regards to alter ego claims is an
exception to that rule. The burden of piercing the corporate veil and demonstrating
a corporation was used as an alter ego is always on the plaintiff. See BMC
Software, 83 S.W.3d at 798-99; Washington DC Party Shuttle, LLC v. IGuide
Tours, 406 S.W.3d 723, 738-39 (Tex. App.—Houston [14th Dist.] 2013, pet.
5
Fisher has filed a motion to strike the documents attached to appellees’ brief. This
motion was taken with the case. We now deny that motion as moot. See Saldana-Fountain v.
Chavez Law Firm, 450 S.W.3d 913, 915 n.1 (Tex. App.—El Paso 2014, no pet.).
11
denied). This is because Texas law imposes a rebuttable presumption that a
corporation is a separate entity from its officers and shareholders. See BMC
Software, 83 S.W.3d at 798-99; Washington DC Party Shuttle, 406 S.W.3d at 738-
39. Here, appellees did not present any evidence to pierce the corporate veil
between Fisher and any entities that do business in Texas. See BMC Software, 83
S.W.3d at 799 (rejecting general jurisdiction claim based on activity of separate
corporation where there was no evidence in the record to support any implied
findings of alter ego).
As discussed above, appellees’ assertion that Fisher or entities he controlled
participated in litigation in Texas is also unsupported by evidence. Fisher averred
that he did not conduct any personal business in Texas. Appellees referenced
lawsuits allegedly involving Fisher or entities controlled by Fisher in Texas courts,
both state and federal. However, appellees did not provide any evidence to support
these allegations. See WorldPeace, 183 S.W.3d at 459 (“A court cannot take
judicial notice of the records of another court in another case unless a party
provides proof of those records.”). Moreover, mere participation in a lawsuit does
render a person subject to general jurisdiction. Zamarron v. Shinko Wire Co., 125
S.W.3d 132, 143 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(“Voluntarily filing a lawsuit in a jurisdiction is purposeful availment of the
jurisdiction’s facilities and can subject a party to personal jurisdiction in another
lawsuit only when the lawsuits arise from the same general transaction.”); see also
Waterman S.S. Corp. v. Ruiz, 355 S.W.3d 387, 422 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied) (following Zamarron). Appellees do not allege that these
prior lawsuits were in any way related to the present lawsuit.
Next, appellees assert Fisher had meetings in Texas with Davis and other
representatives of Eagle Rock. Although Fisher did not expressly deny he
12
participated in some meetings in Texas, he insisted that he did so only as a
company representative. While a corporate officer may not escape liability where
he had direct, personal participation in wrongdoing, see Tabacinic v. Frazier, 372
S.W.3d 658, 669 (Tex. App.—Dallas 2012, no pet.), for general jurisdiction
purposes, simply stating that the defendant attended meetings in state is not
sufficient. See Wellness Wireless, Inc. v. Vita, No. 01-12-00500-CV, 2013 WL
978270, at *9 (Tex. App.—Houston [1st Dist.] Mar. 12, 2013, no pet.) (mem. op.)
(discounting business meetings in Texas as evidence for general jurisdiction
purposes where there was no evidence regarding the quantity, length, or purposes
of the meetings). Here, apart from stating the meetings at Bleveso’s offices and a
restaurant were “numerous,” Davis did not provide any details regarding the
number, length, or subject matter of the alleged meetings.
Similarly, adding to those meetings the acknowledged facts that Fisher
visited his parents a couple of times a year in Texas and had a Texas driver’s
license did not establish continuous and systematic contacts with Texas so as to
support general jurisdiction. See Luker v. Luker, 776 S.W.2d 624, 625 (Tex.
App.—Texarkana 1989, writ denied) (holding nonresident defendant who held
Texas driver’s license and made trips to the state three or four times a year in an
automobile purchased and financed in Texas did not have sufficient contacts);
Wallace v. Holden, 297 Or. App. 824, 832, 445 P.3d 914, 920 (Or. Ct. App. 2019)
(collecting cases from other states, including Luker, and concluding a driver’s
license alone does not establish general jurisdiction); Uche v. Allison, 264 S.W.3d
90, 99 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“[O]ccasional travel to
Texas is insufficient by itself to establish continuous and systematic contact.”);
Moni Pulo Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170, 179 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (“[I]t is difficult to say that two or three
13
visits a year are continuous and systematic.”).
Fisher negated appellees’ general jurisdiction allegations in his affidavit, and
appellees’ failed to establish that Fisher had such continuous and systematic
contacts as to render him subject to general jurisdiction in Texas. See Searcy, 496
S.W.3d at 72–73; PHC-Minden, L.P., 235 S.W.3d at 168-70.
B. Specific Jurisdiction
Specific jurisdiction contemplates whether the defendant’s alleged liability
arises out of, or is related to, an activity conducted within the forum. See Moki
Mac, 221 S.W.3d at 576; BMC Software, 83 S.W.3d at 796. Three sets of
appellees’ allegations appear potentially aimed at establishing specific
jurisdiction: (1) Fisher controlled several entities that did business in Texas as his
alter egos, (2) Fisher participated in lawsuits in Texas, and (3) Fisher had in-person
meetings in Texas with Davis or other representatives of Eagle Rock.
As discussed above, the burden to pierce the corporate veil of Fisher’s
companies allegedly conducting business in Texas was on appellees, see BMC
Software, 83 S.W.3d at 798-99, and they failed to produce any evidence to support
those allegations. Although an officer or employee of a corporation can be held
liable for wrongdoing in which he participated without the need for piercing the
corporate veil, see Tabacinic, 372 S.W.3d at 669, appellees did not allege and did
not offer any evidence to show that Fisher committed any tortious conduct in
Texas. Appellees asserted Fisher committed torts but did not say where. Appellees
asserted Fisher had certain activities in and contacts with the state but did not
allege that those were tortious behaviors. Consequently, the allegations that Fisher
conducted business in Texas on behalf of corporations connected to him do not
support an implied finding on specific jurisdiction. Cf. Touradji v. Beach Capital
P’ship, 316 S.W.3d 15, 27–28 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
14
(holding allegations that fraudulent representations were made in Texas were
sufficient for specific jurisdiction purposes and distinguishing cases where similar
allegations did not specifically mention the representations were made in the state).
Regarding the alleged participation of Fisher or Fisher-related entities in
lawsuits in Texas, Fisher denied that he conducted any personal business in Texas
and appellees failed to present any evidence to support the existence or details of
the alleged lawsuits. Moreover, appellees have not alleged or shown that the prior
lawsuits have any connection whatsoever to the torts alleged in the present case.
Accordingly, the alleged lawsuits do not support an implied finding on specific
jurisdiction. Cf. Zamarron, 125 S.W.3d at 143.
Lastly, appellees asserted that Fisher participated in “numerous” in-person
meetings in Texas. However, as stated, appellees did not allege that Fisher
committed a tort in Texas. They say he committed torts but do not say where. They
say he had meetings in Texas, but do not assert fraudulent representations or other
tortious conduct occurred in the state. Consequently, the allegation that Fisher
participated in meetings in Texas does not support an implied finding on specific
jurisdiction. See Kelly, 301 S.W.3d at 659-60 (“Regarding the fraud claim,
[plaintiff] did allege several fraudulent acts . . . , but it did not allege that any
fraudulent acts occurred in Texas.”); Baldwin v. Household Int’l, Inc., 36 S.W.3d
273, 277–78 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding allegations
were insufficient to support specific jurisdiction when petition alleged fraudulent
representations but did not allege where or when the misrepresentations occurred);
cf. Touradji, 316 S.W.3d at 27–28 (holding allegations that expressly connected
wrongful acts with Texas were sufficient).6
6
In their appellate briefing, appellees suggest that Fisher’s counsel made a judicial
admission during the special appearance hearing when he replied “[y]es” after the trial judge
15
IV. Conclusion
Fisher negated all pleaded bases for personal jurisdiction and appellees
failed to establish Fisher had sufficient contacts with Texas to support jurisdiction.
Accordingly, we reverse the trial court’s order denying Fisher’s special appearance
and render judgment dismissing the case for want of personal jurisdiction.
/s/ Frances Bourliot
Justice
Panel consists of Justices Christopher, Bourliot, and Zimmerer.
asked if Fisher was in Texas at the time he made the allegedly fraudulent statements. Setting
aside the fact that this supposed admission was outside of the allegations made by appellees and
thus that Fisher was charged with negating, we do not believe that counsel’s response constituted
a judicial admission. See Kelly, 301 S.W.3d at 658-59 & n.6; WaterWorks Corral Creek, LLC v.
AquaTech Saltwater Disposal LLC, No. 03-16-00309-CV, 2018 WL 988907, at *9 (Tex. App.—
Austin Feb. 21, 2018, pet dism’d) (mem. op.).
A judicial admission is a clear, deliberate, and unequivocal assertion of fact that makes
the introduction of other evidence on an issue unnecessary. See Anglo-Dutch Energy, LLC v.
Crawford Hughes Operating Co., No. 14-16-00635-CV, 2017 WL 4440530, at *6 (Tex. App.—
Houston [14th Dist.] Oct. 5, 2017, pet. denied) (citing Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 905 (Tex. 2000)). A counsel’s statement on behalf of a client may constitute a
judicial admission. In re Estate of Guerrero, 465 S.W.3d 693, 705 (Tex. App.–Houston [14th
Dist.] 2015, pet. denied) (en banc). To constitute a judicial admission, the statement must be
(1) made in the course of a judicial proceeding; (2) contrary to a fact essential for the party’s
recovery or defense; (3) deliberate, clear, and unequivocal; (4) in accordance with public policy
if given conclusive effect; and (5) consistent with the opposing party’s theory of recovery. Id. at
705-06.
Here, shortly before Fisher’s counsel said “yes” to the judge’s inquiry, he said that he
“believed” Davis had alleged in his affidavit that the misrepresentations either occurred in Texas
or had been made in an email. It is unclear whether counsel was still referencing Davis’s
affidavit when he said “yes” or whether he was intending to personally assert that
misrepresentations occurred in Texas. Moreover, immediately after saying “yes,” counsel began
to argue that it did not matter for jurisdictional purposes, suggesting that counsel did not think
the truth of those allegations was important. Under these circumstances, we cannot say that
Fisher’s counsel clearly, deliberately, and unequivocally asserted as fact that Fisher made
fraudulent misrepresentations in Texas. Consequently, counsel’s statement did not constitute a
judicial admission. See, e.g., Dealer Computer Servs., Inc. v. DCT Hollister Rd, LLC, 574
S.W.3d 610, 625 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Estate of Guerrero, 465
S.W.3d 693 at 706.
16