Opinion issued October 12 , 2023

In The 

## Court of Appeals For The 

## First District of Texas

————————

———— NO. 01
- 2 2
- 00561
- CV

——————————— DAVID L. SHUMAN , Appella nt

V. DECLAN JAMES GANLEY, SEAN P. T RACEY , & SEAN P. TRACEY ESQ., P.C. D/B/A TRACEY FOX KING & WAL T E R S , Appell e e s

On Appeal from the 113th District Court

Harris County, Texas Trial Court Ca se No . 2020
- 61864

ME M ORANDUM OPINION ON RE HEARING Appellee Declan James Ganley filed a motion for en banc reconsideration of our April 27, 2023 me morandum opinion

. See T EX
. R. A PP
. P. 49.5 (En Banc Reconside ration)

. Treating the en banc motion as a request for panel rehearing, we deny rehearing but withdraw our o pinion of April 27, 2023, vacate our judgment of2

the same date, and substitute this o p inion and judgment in their stead. Ganley ’ s motion for en banc reconsideration of our prior opinion i s moot. 1 In this interlocutory appeal, 2 appellant David Shuman c hallenges the trial
court ’ s order denyi ng his special appearance in the case brought by app ellees Decl an G an l ey, Sean Tracey , and Sean P. Tracey Esq., P.C. d/b/a/ Tracey Fox King & Walters

. Shuman cont e nds that the trial court erred in denying his special
appearance because the court lacks specific jurisdiction over him and in denying
hi s motion to transf

er ve nu e . We reverse and remand wi th instructions to t he trial court to dismiss
S h uman from the sui t for lack of personal jurisdiction

.

B ackground D eclan Ganley , an Irish citizen living in Ireland , sued Sean Tracey, a Texas

r esident , wh o also h as a home and o f fice in Mi chigan , and Shuman, a New York

1 Because we issue a new opini on, the Motion for En Banc Reconsideration is moot. In re Wagner , 560 S. W .3d 311, 312 (Tex. App.

— Houston [1 st Dist.] 2018, orig. proceeding) ( “ Because we issue a new opinion in connection with denial of rehearing, the motion for en banc reconsideration is rendered moot. ” ); see also Poland v. Ott , 278 S. W.3d 39, 41 (Tex. App.

— H o uston [1 st D ist.] 2008, pet. denied) (not ing that moti on for en banc reconsideration rendered moot by with drawal and reissuance of opinion and judgment); Brookshire Bros. , Inc. v. Smi th , 176 S.W.3d 30, 40 n.4 (Tex. App.

— Hou ston [1 st Dist.] 2004, pet. deni e d ) (s upp . op. on reh ’ g) (noting that motion for en banc reconsideration moot when motion for rehearing granted and new opinion and judgment issu e).

2 T EX
. C IV
. P RA C

. & R EM
. C ODE § 5 1.01 4 (a)(7).3

residen t

. Ganley sued Tracey in Texas and alleged claims for breac h o f contract, fraud, and breach of fid uci ary duty

. Tracey, in turn , filed a third

- party petition against Shuman f

or the same claims

. The u nd erlyin g controv ersy revolves around a debt owed by Ganl ey and guaranteed by Shuman

. A. Shuman guar a ntees a loan between Ganley and Worth. Ganley owned 235,00 0 shares in Rivada Networks, Inc ., a Del a war e corporation with its prin c ipal place of busin ess in Virg ini a . Ganley used his shares as collateral for a $3 mi llion loan from Worth Capital H o ld i ngs ( “ Worth ” )

. Worth is a Delaware entity that , at the time , had its principal place of bu siness in New
Yor k

. A few months after the or i ginal loan agre emen t was execute d , Ganley and
W orth entered into an amend ed agreemen t that increased the principal by $ 1.5 million. On the same day, Shuman , who was Ganley ’ s friend and occasional business partner, personally g uaranteed Ganley ’ s $4.5 mi llio n loan obligation. Ganl ey and Wor t h modi fied the loan agreement several times , inclu ding extending the maturity date and incre a sing the amount of the initial obligation in return for

e xtension fees. The modifications included a list of various pay off a moun ts and
dates whereb y Wo rth would a cq uire Rivada stock at certain prices

. After all

m odifications , Ganley owed W orth $9 million

.4

Ganley never repaid W o rt h . Worth foreclosed on Ganley ’ s debt, including the Rivada stock that Ganley had used to secure th e loa n. Worth obtained R ivad a

common s t ock fo r $100,000. Worth sued Shuman in fed eral cou rt in New York on Shu m an ’ s personal guarant ee of Ganley ’ s loan.
B. Ga nley attempts to settle the law su it between Worth and Shuman. While W orth ’ s suit against S h uman was pendi ng, Ganley contacte d Sh uman and t o ld him that Tracey was an investor in R iva d a and a close acquaintance

. G an ley told S h uman that he had been working with Tracey to obtain funding to

re solve Worth’s claims against S h uman so that the Rivada shares Worth ha d acquired could be r ecouped.
Ga nl e y suggested that S h uman speak by phone w i th Tracey about his efforts to obta i n s ettlement funding. Shuman and Tracey spoke by phone and email periodic ally for a few months regarding Shuman ’ s efforts to negotiate a settle me nt with Wor th a nd T racey ’ s effort s to obtain investment funds in Rivada fo r a settle ment. The men never met in person. Tracey found two investors, one of whom was in Texas . Ultimately , Shuman and Worth entered into a settlement agreement. In his capacit y as Chairman and
C EO of Rivada, Ga n ley approved t h e transfer o f Rivada stock from Wor th to Shuman , pursuant to t he settlement agreement , and from Shuman to the two investors in return f

or their settlement funding.5

F ollowing the settlement , Shuman assigne d his rights unde r th e loan
agreeme n t, which he acquired from Worth through the settle ment , to a third p arty, Astr ea NYNY LLC, which su e d Ganley in state court in New York. The New York court rendered a default judgme nt against Ganley. C. Ganley and Tracey s ue Shuman . Ganley and Tracey argue t hat Shuman did not follow through on their
agreeme n t regarding Rivada shares after the set tlement. They argue that Shuman

r e t a ined Rivada shares that the three men had agreed would be dispersed to each of them. A few weeks a fter the settleme nt agreement , G anley sue d Tracey in Texas all eging that he breach e d various duties by fa il ing to secure the return of the Rivad a stock collateral. Trac ey filed a thi rd

- party claim aga inst Shuman

. Tracey asserted that Shuman was subject t o personal juris dic tion in Texas b ecaus e “ the acts and omissions giving rise to this cause of action occurr ed in Texas and/or Shuman engaged the s ervices of Tracey in Hou ston, Texas. ” Shuman filed a special appearance and motion to di smiss or transfer venu e pursuant to the

c ont ractual for u m - s e l ection clauses in the underlying loan and set tlement documents. Ganley amended his petition to ad d claims against S h uman. Ganley a lleged that S h uman was subject to personal jurisdiction in Texas because Shuman

“ engag ed and purposefully a v ailed hi mse l f of services by and through Defendant6

Tracey in H ousto n, Texas

. A substantial portion of the acts and omission complained of occurred i n Harris Count y, Texas

. ” Shuman filed an additional special appearance and motion t o d ismiss or tra n sfer venu e as to Ga n ley ’ s claim s. Both Ganley ’ s and Tracey ’ s claims a gai ns t S h uman allege that S h uman improperly retain ed 46,000 shares of 253,0 00 shares of R ivada s tock that W o rth assigned to Shuman through the settlement

. Ganl ey and Tracey argue that Shuman previously agr e ed not to retain any of th e stock. The trial court denied Shuman ’ s

s pe cial appearance and motion to dismiss or trans fer

. T he trial court did not make any findings of fact or conclusions of law. Shuman appeal s . P ersonal Jur isdiction I n his f irst issue, S h u man argu es that the trial cou rt erred in den y ing h is special appea ra nce because he did not have the minimum contacts wi th Texas

necess ary for Texas to assert jurisdiction over him.
The existence of personal juri s diction i s a question of law , which must

s o metimes be p receded by the re solution of underlyin g factual disputes. B MC Software Be lg., N.V. v. Marchand , 83 S.W.3d 7 89, 794 (Tex. 2002); Paul Gillr ie Inst., Inc. v. Universal Comput. Consulting, Ltd. , 183 S.W

. 3d 755, 75 9 (Tex. App.

— Housto n [1st Dist.] 2 005, no pet. ). When the und erlying facts are undis puted or otherwise e stablished, we review a trial court’s denial of a special
appe arance de novo. Pa ul Gillrie Inst. , 183 S.W.3d at 759. Where, as here, a tri a l7

court does not issue findings of fact or con c lusions of l aw with its

s pecial

- appearance ruling, all fact findin gs necessary to support the judgment and
that are sup ported by t he evidence are impl ied. Marchand , 83 S.W.3d at 795; Paul Gillrie Inst. , 183 S .W.3d at 759. A trial court deter mines a “speci a l appearance on the basi s of the pleadings, any st ipulations made b y and between the parties, such affidavits and a ttac hments

as may be filed by the p arties, the results of discovery processes, and any oral
t estimony.” T EX
. R. C IV
. P. 120a(3 ). The plainti f f bears the initial bu rden of pleading allegations sufficient t o bring the nonr esident defendants within the
prov isions of the Texas long

- arm statute. Am. Type Culture Collection v. Coleman , 83 S.W.3d 801 , 807 (Tex. 2002); Paul Gillrie Inst. , 183 S.W.3d a t 759. The bu rden of proof then shifts to the nonre sident defe nd ants to negate all the bases of jurisdiction all eged by the pl aintiff. Kawasaki Steel C orp. v. Middleton , 699 S.W.2d 199, 203 (Tex. 1985); s ee also Kelly v. Ge n. Interior Constr. , Inc. , 301
S. W .3d 653, 658 (Tex. 2010) (“Because the plaintiff d efines the s cope and natur e of the lawsuit, the defendant’s correspon ding burden to negate jurisdict ion is tied to the allegations in the plaintiff’s pl e ading.”). A single basis for personal jurisdiction i s sufficient to conf er jurisdiction

over a nonresid ent defend an t

. See Citrin Holdings, LLC v. Minnis , 305 S .W.3d 269, 27 9 (T ex. App.

— Houston [14th Dist .] 2009, no pet.). If a nonresident8

defendant is subject to specific jur isdiction , this is sufficient

. Se e Am. Express
Cent urion Bank v. Haryanto , 491 S.W.3 d 337, 3 46 n.8 (Tex. App

. — Beaumont 2016, no pet.); Minnis , 305 S.W.3d at 279

. A court need not asse s s the nonresident defendant ’ s contacts on a claim

- by

- claim basis where, as here, all cl aims essentially a r is e from the same forum co nt acts. See Mon crief Oil Int’l Inc. v. OAO Gazprom , 414 S.W.3 d 142, 150

– 51 (Tex. 2013 ) ; Proppant Sols. LLC v. Delgado , 47 1 S .W.3d 529, 537 (Tex. App.

— Houston [1st Dist.] 2015, no pet.)

. A court may assert per son al jurisdiction o ver a nonresident defend an t only if the requiremen ts of both th e Fourteenth Amen dment ’ s due process clause and the Texas long

- arm statute are satisfie d. See U.S. C ONST
. amend. XIV, § 1; T EX
. C IV
. P RAC
. & R EM
. C ODE § 17.042 ; Guardian Roy al Ex ch. Assurance, Ltd. v. English China C la ys, P.L.C. , 81 5 S.W.2d 22 3, 226

– 27 (Tex. 1991). The Tex as lon g - arm statute allows a court to exercise personal jurisdiction o ver nonresident defendant s who do business in Texas. T EX
. C IV
. P RAC
. & R EM
. C ODE § 17. 042. A nonresident d efendant “do es busine ss ” in Texas if he “contract s by mail or otherwise with a
T exas resident and either party is to perform the contract in whole or in part” in Texas, he “commit s a tort in whole or in part” in Texas, or he “recruit s T exas residents, dir e ctly or through an in te rmediary locat ed in [Texas] , for employment
inside or out side the state.” Id. The Texas Supreme Court has repeatedly interprete d this statutory language “to re a ch as far as the federal constitutional9

requirement s of du e process will allow.” Guar dian R oy al , 815 S.W.2d at 226. Therefo re, the requirements of the Te x as long

- arm statute are satisfied if the exercise of personal jurisdi ction comports with federal du e process limitations. Id. The United Stat es Consti tutio n per mits a state t o assert pe rsonal j urisdiction

ov er a nonresident d efendant only if he has some m inimum, purposeful contacts with the state and if the exercise of juri sdiction will not offend tr a ditional notions of fair play and substantia l justice

. Daw son - A ustin v. Austi n , 968 S .W.2d 31 9, 326 (Tex. 199 8). N onresident def endant s who ha ve purposefull y availed themselves of the privileges and benefits of conducting busine ss in the state ha ve suff i cient contacts with the state to confer person al juri sdictio n. Se e Guardian Roy a l , 815 S.W.2d a t 226. The “pu rposeful availment” r equirement has been charact eri zed by the Texas Supreme Court as the “touchstone of jurisdictional du e process.” Michia na Ea s y Livin ’ Country, Inc. v. Holten , 168 S.W.3d 777 , 784 (Tex. 20 05)

. In Michiana , t h e Texas Supreme Court art ic ulated three i mportant aspects of the purposeful avai lment inq uiry. Id. at 785. First, only the nonresident defendant ’ s

con tacts with the forum count

. Id. This ensures that a nonresident defendan t is not haled into a jurisdictio n solely by the unilat er al activities of a third pa rty. I d. (citing Burger King C orp. v. Rudzewicz , 471 U.S. 462, 475 (1985)). Second, the acts relied on must be pu rpose f ul; the nonresident defendant may not be ha led into a10

jurisdiction solel y based on con t acts that are “rando m , isolated, or fortuitous.”
M ichiana , 168 S.W.3d at 784 ( qu oting Keeton v. Hustler Ma g . , Inc. , 465 U.S. 770,
774 (1984)). Third, the nonresident defendant “must s eek s o me benefit, advantage, or profit by ‘ availing ’ [ hims elf ] of the ju r isdiction” because “[j]urisdiction is
p remised on not ions of implied consent” an d by “invoking the be nefits and protections of a forum ’ s laws,

. . . a nonresident consent s to suit the r e.” Id. (citing World

- Wide Volkswagen Corp. v. Woods on , 4 44 U.S. 286 , 2 9 7 (1980) ). The nonresident d efendant ’ s contacts wi th a forum can give rise to ei ther general or spec ific jurisdiction. Marchand , 83 S.W.3d at 795. Spe cific jurisdiction
is establis h ed if the nonresident defendant ’ s alleged liability ari ses f rom or re lates to an activity conducted within the forum. Id. at 796. When specific jurisdictio n is asserted, the minimum contacts analysis focuses on the relationsh ip between t h e nonresident defendant , the forum, and the litigation. Mok i Mac Riv er Ex pedit ions v. Drugg , 221 S.W.3d 569, 5 75

– 76 (Tex. 20 07). Foreseeability is an important consideratio n in deciding whether a nonresident defendant has purposefully establ is hed minimu m contacts with the forum state. Burger King Corp. , 471 U.S. a t 474; G uardia n Roy al , 815 S.W.2d at 227. The co n cept of forese eability is implicit in the requirement that the re be a substantial connection between the nonresident defendant and Texa s, aris i ng from11

actions or conduct of the nonresident defendant purposef ully di rected towar d
Texas. Guard i an Royal , 815 S.W.2d at 227

. A. Specific Jurisdiction 3 Shuman argues that the tria l court erred in concluding that Texas has specific jurisdiction over him because he did not have substantial contact s with Texas, h i s interac tion w i th a Te xan w as fortuitous r ather than pu r poseful, and h e did not seek advanta ge or profit by availing h imse lf of Texas.
In determining whether Ganley and Trac ey pleaded suffi cient jurisdictional facts, we consider their pleadings as well as their respo nse s to the a mended special
appearance. S e e T EX
. R. C IV
. P. 120a(3 ); Max Prote t ch , Inc. v. Herrin , 340 S. W. 3 d 878, 883 (Tex. App.

— Housto n [14th Dist.] 2011, no pet.); Toura dji v. Beach Cap.
P ’ ship, L.P. , 316 S.W.3d 15, 23 (Tex. App.

— Houston [1st Dist .] 2010 , no pe t.). In conducting o ur review, we a ccept as true the allegations in Tr acey ’ s and Gan ley ’ s
p etitio ns . See Tex. Dep ’ t of Tra nsp. v . Ramirez , 74 S.W.3d 864, 86 (Tex. 2002) ( in considering jurisdictional motions, reviewing cou rt construes liberal ly plea dings i n pl a intiff ’ s favor ) ; Max Prote t ch , 340 S.W.3d at 883; Touradji , 316 S .W.3d at 23. Ganley asse r ted f

i rst

- party claims against Tracey for failing to ensure that the Rivada common stock was returned to Ganley . He also asserted cla ims against
S h um an for faili ng to return the co m mon stock. T r ac e y, in turn, as serted first and

3 Neither party argues the exist ence o f general j urisdict i on.12

thi rd

- party claims against S h um an claiming that Shuman was the tru e cause of Ganley ’ s injuries.
Both G anley and Tracey allege the same contacts with Texas to justify personal jurisdi ction over S h uman. They e a ch allege that Shu m an purposefull y availed himself of services from Tracey in Ho u sto n and that a substantial portion
of the acts and omissions underly ing their c laims occurred in Harris County. In his special appearance, Shuman asse rts that his only conn e ction to Texas is t hat he had pho ne and email comm unications with Tracey , which h e argues are insufficient to support p ersonal jurisdiction . In his af fidavit, Shuman states that it
was Gan ley who sought assistance from Tra ce y f or outstanding debt in New Y o rk.
Trac e y first called Shuman at Gan ley ’ s beh est. Shuman spoke with Tracey by phone and email, but he never met Tra cey in person or conducted a video
conference

. Shuman also argues that the dispute in the underlying case has nothing to do wit h T exas. No n e of the transactions or occurre n ces involved i n t he case occurr ed in Texas. Ganley ’ s loan was not execut ed or performed in Texas, nor was
S h uman ’ s gu arant ee . Shuman asserts that the only connection with Texas is Tracey ’ s resid ency . In his respon se to Sh u man’s special appearance, Ganley allege s that t he t rial court ha s specific jurisdiction over Sh uman becau s e Shuman “ sought counsel from13

a Texas r eside nt and licensed attorney ( T racey), asked Tracey to raise settlement fund s fro m other Texas reside nts, reg u larly communicated with Tra cey a b out the lawsui t a nd settlement, promised payment of compan y sh ares to Tr a cey, and converted shares rightly owned by T r acey. ” Gan ley attached an affidavit by Tracey that states that Tracey w as co ntacted by G an ley after a le n der foreclosed on shares

o f Ri v ada that G anley had pledged for a loan and co

- signed with S h uman. The

a ffidavit states that both Ganley and S h uman want ed Tracey ’ s help to find people who could contribute to settling the lit igati on in exchang e for a po rtion of Rivada shares. In the a ffidavit , Trac ey testifi es that he fou nd a Texas

- base d investo r willing to contribute, and that S h uman was not consulted bec ause he had no standing in the interest of the shares

. Tracey states tha t he emailed with S human and Shum a n ’ s attorneys re g ularly between May and O c tober 20 20 regarding the

s ettlement and the funds raise d for the settleme nt. Shuman filed a supplement in s upport of his special appearanc e and attached

an other affidavit executed by Trac ey in a sep arate action i n New York. Whil e Shuman disput es much of the New Y ork affidavit, he points out that in the New York suit ’ s affida vit, Tracey represents that he was hi red by Ganl ey, rather than as a joint effort between Ganley and Shuman. Th e affi da vit state s that Tracey

r epresented Ganl e y in his dispu te with Worth Capita l concerning share s of Rivad a that collater alized a loan and we re foreclosed upo n . Tracey states tha t he brought14

two investors to Ganley’s attention and worked o n a deal wh ere the in vestors

w ould provid e i n vestment ca pital to Rivada which could be used to fund a

se ttlement with Worth Capital. Tracey ’ s affidavit in the N ew York action states :

“ Mr. Shuman never spoke to either investor, and it was entirely due t o my contacts

a nd wor k on behalf o f Mr. G a nley t h at Mr. S h uman was in any position to settle
his la wsuit with W o rth Capital at all. ” Shuman also attached emails to the supplemen tal response showing that Tracey was in Michigan during some of their communic ation. He asser ts tha t h e had reas on to believe t hat the lawyer Ganley hired was in Mic hi gan rather than
Texas. On appeal , Shuman argues that communication with Tracey alone is not enough to establi sh sp ecific jurisdiction. He cites to Mi chiana and argues that phone cal ls are no t enou gh t o est ablish p u r poseful avail ment. 168 S.W.3d at 791 (stating tech nology change s make reliance on phone calls obsol ete as proof of purposeful availment). He further a rgues that to the exte nt Ganley and Tracey argue that Shuman entered int o a co ntract with t hem, a contrac t formed by phone is still insuffic ient to co nfer j urisdiction

. See id. at 7 8 7 (holding con tract formed by phone with Texas resident insuff icient to co nfer jurisdiction for disputes arising from contract) . Shuman asserts th at the bulk of hi s communication w ith Tracey occurred while Tracey was residing in h is second home in Michig a n. Shuman15

reit erates that the only connection between S h uman a nd Texas supp orted by the record is the fact that S h uman communicated with T racey by phone and em a il.
G an ley and Trac e y argue on appeal that Shuman sou ght financial ben efit in Texas by solicit i ng a Texas res ident for a loan and that Tracey was Shuman ’ s ag ent for doing so. Shuman responds that Tracey ’ s aff idavit ’ s allegation that he acted as S h u man ’ s agent i n T e xas is con c lusory and that there is no evide nce that Shuma n

e ngaged in any conduct in or directed at Texas. B. Analysis 1. Purposeful Avail ment T he plea di ngs and evide nce do not support the trial court’s implied findings that S h uman had su ffici ent minimum co ntacts with Te x as and that these contacts

were s ubstantially c onn ected to the operati ve f a cts of the lit igation for the exercise
of specific jurisdictio n over Shuman to be proper. See Moki Mac , 221 S.W.3d at 575

– 76. We conclude that Shum an ha s negated all bases for an a s sertion of specific jurisdiction ove r him. Reg ard ing agency, T race y and Gan l e y did not meet their initial burden of pleading allegations su fficient t o confer jurisdiction

. T here is no pleading to support Tracey ’ s or Ganle y ’ s a llegation that Tracey was S h u man ’ s agent. G anley alleged claims for bre ach o f c ontract, fraud, and breach of fiduciary duty. Tracey all eged claims against Shuman for breach of con tract and breach of fiduciary duty.16

“ [T]he plaintiff bears the initial b urden of pleading a l legations suf f icient to confer jurisdicti o n. ” Moncrief O il , 4 14 S.W.3d at 149. A defendant is obliga ted to “ negate all possible grounds for personal jurisdiction al leged by the plaintiff. ” Capital F i n . & Com

. AG v Sinopec O v erseas Oil & Gas, Ltd. , 2 60 S.W .3d 67, 8 1 (Te x . App.

— Houston [1st D ist.] 2 008, no pet. ) (refusin g to consider agency theory on ap peal when not pleaded). The defendant has n o burden to negate a pot ential basis for personal jurisdiction when it is not pleaded by the pla i ntiff. K elly v. Ge n. I

nterior
C o n str., I n c. , 301 S .W.3d 653, 658 ( Tex . 2010 ). Trace y and Gan ley waited until appeal to assert agency as a basi s for jurisdiction. Accordingly , Shuman is not obligated to negate it.
M or eover, the uncontroverted evidence does not e stabl ish an agency relation s hip. Agency is a cons e nsual relation between tw o parties “ by which one party acts on behalf of t he other, subject to the other ’ s control. ” Reliant Energy Servs., Inc. v . Cotton Valley C o mpression, L. L.C. , 336 S.W.3d 764, 782

– 83 (Tex. Ap p.

— Houston [1st Dis t .] 2011, no pet.) ( i n t ernal quotatio n omitted).
Authorization to a ct and cont rol of the action are the two essential elements of
agency. Id. at 783. Agency is never pre sumed and the p arty assert ing the relationship has the burd e n of pro vi ng it. Capital Fi n . & Com

. , 260 S.W.3d 67 at 83

. T he evidenc e does not support that an agency r elationship existed between Shuman and Tracey. Trace y ’ s declarations est ablish that he did not consult17

Shu man reg a rding negotiat ions with investors an d that t he deal w ith the i nv e stors

was “ exclusively negot iated ” b y Trac y through Ganley. Tracey also state d that he represented Ganle y, while S h uman had h is own lawyers. There is no evidence to
sup port an agency theory , and therefore, no basis to impute Tr acey ’ s conduct to Shuman f or jurisdictional purposes

. See Suzlon Energy Ltd. v. T rinity Structural
Towe rs, I n c. , 436 S.W.3d 835, 843 (Tex. App.

— Dallas 2014, no pet.) ( holding no evidence to support agency - based t heory o f jurisdiction )

. Ganle y ’ s and Tra cey ’ s all egations that Shuman ’ s co mmunication with Tracey establish es juri sdiction is similarly deficient. Ga nley and Tracey rel y on the fact that for a period of months, Tracey com muni cated by phone and email with Shuman o r his counsel

. Communications , wi tho ut mor e, cannot support ju ri s diction

. See Old Republic Nat ’ l Ti tle Ins. Co. v. Bell , 549 S.W.3d 550, 56 0 ( Tex. 2018) ( “ On their own, numerous tele phone communications with people in
T e xas do not es tablish contact s. ” ). T h e fact that Sh uman or his counsel di scusse d with Tracey the pr og r ess toward settling the lawsuit with W o r th by email or phone

on numerous occa sions d oes not demo nstrate the qualit y and nature of communications to establish purposeful a vailment

. Sea rcy v. Parex Res

. , Inc. , 496 S.W.3d 58, 74

– 7 5 ( T ex . 2016) (stati ng that d iscussions on acquiring non

- Texan
assets do not establish purposeful contacts in Tex as ). As in Searc y , “ the [Texa s based defendant] involved co uld , quite literally, hav e been based an y w here in the18

wo rld, and [the Can ad ian defen dant c ompany ] would presumab l y have interacted with it in the s ame way as they did with its employees [in Canada]

. ” Id. (holding

no specific jurisdiction over Can adian defendant). The mer e coi ncide nce that Tracey was in Texas do e s not demonstr ate that Sh um an pur posefully availed hims e lf of Texas for jurisdictiona l purposes. Ganley argues that jurisdiction is proper because not only did S h uman deliberately correspond with Tracey in Texas, but h e als o sought “ some benefit, advanta g e, or profit b y avail ing ” h imself of the jurisdiction. M ichian a , 168 S .W.3d
at 785 ( stating c ourt must find t hat defendant sought “ b e nefit, advantage, or profit by availing himself of this State ’ s jurisdiction ” ). Ganley ar gu es that S h uman sought benefit of Texas b y actively sol icit i ng loa ns from Texans. The re c ord does
not s upport this contention

. The uncontroverted evidence establishes that Ganley hired Tracey without S h uman ’ s involvement

. In negotiating the lawsuit with
W or th, Tracey repr esent ed Ganley , and S h uma n had his own c ouns el. Tr acey worked exclusivel y on behalf of G anley, and Shuman was not consulted about selecting or negotia ti ng with any investors, whether based in Texas or elsewhere. It is fortuitous that T racey was in T e xas w h en he called S h uman a t Ganle y ’ s req uest. It i s equ ally fortuitous that G a nley chose Tracey, a Texas resident, to help resolve his litigation with Wort h in New York and that one of the investors was a Texan.19

The re cord does not reflect that S h uman solicited business or sought the b enefit of
Texa s in a way that satisfies the lon g - arm statute

. Mi chiana , 168 S.W.3d at 785

. 2. Related ness of Contacts to Lit iga tion F i nally, Ganley and Tracey have not pleaded jurisdictional facts to satisfy
the second prong of s peci fic jurisdic tion, which requires that there be a “ su bstantial connection ” between the def e ndant ’ s fo rum contacts and the “ operative facts of the litig ation

. ” Moki Mac , 221 S.W.3d at 585. We consider wh at the claims are

“ principally concerned with, ” whe ther the contact s will be “ the focus of t h e tria l ” and “ c onsume mo st if not a ll of the litiga tion ’ s atte ntion, ” and whether the contacts

are “ related to t he operative facts ” of the cla im. TV Azteca v. Ruiz , 490 S.W.3d 29,
53 (Tex. 2016 ) (interna l quotations om itted)

. Ganley ’ s and Tracey ’ s claims

concern alleg ed statement s by Sh u ma n abou t the return of Rivada stock . Shuman denies makin g an agreement with Gan ley or Tracey regarding the stock, but even if their allegations are true, the facts do not have a nexus t o Texas. There is no al legation about the so urce o f the fu n ds used to sa t isfy Ganley ’ s debt to Worth and to settle Worth ’ s suit against S h uman. There is no allegation or claim related to Tracey ’ s efforts to obtain those fund s. The investors are not part ies to the lawsuit , nor d o the claims in volve t heir p articipati on in the se t tlement or t he ir investment

. The fact that Tracey found a Texas investor is u nrelated to whether Shuma n breached a con tract , breached a fiduciary duty, or co mmitted fra ud ag ainst Trac ey20

or Ga nley. S e e A

jamie LL P v . Podesta Gr

p . , Inc. , No. 01

- 19

- 00503

- CV, 2 020 W L 716734, at *5 (Tex. App.

— Houston [1st Dist.] Feb. 13, 2020, no pet.) ( mem. op.) (holding “ marginally relevant” Texas contacts insufficient to sa tisfy substantia l connection bet ween co nt a cts and o perat ive facts of litigat ion be cause contacts did
not concern disputed facts ).
A ccordingly, we sustain Shuman ’ s issue re garding den ial of his special
appea rance . See Peredo v. M. Holland C o. , 310 S.W.3d 468, 476 (Tex. App.

— Houston [ 14th Dist.] 20 10, no pet .) (when minimum

- contacts requi rem ent not met,

un nece s sary to address “ f air play ” portion of due

- process test). Motion to Transfer Venue H a ving reversed t he trial court ’ s ruling on specific jurisdiction o ver Shuman,

we ne ed not reach Sh uman ’ s second issue that the t rial court e rr ed in denying his motion to t ransfer venue. See T EX
. R. A PP
. P. 47.1.21 Conclusion Having concluded that Shu man lacks sufficient contacts with Texas to support the t rial cou rt ’ s exercise of personal jurisdi c tion , w e reverse the trial

cou rt’s order denying hi s spec ial appearance , render judgment dismissing the claims against him

.

Peter Kelly Ju st ice Panel consists of Chief Justice Ad a ms and Justice s Kelly and Goodman.