1

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-14-00364-CV

_________________

EVERGREEN MEDIA HOLDINGS, LLC AND TONY DEROSA-GRUND, 

Appellants

V.

FILMENGINE ENTERTAINMENT, LLC, Appellee

________________________________________________________________________

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Cause No. 14-02-01508-CV

________________________________________________________________________

MEMORANDUM OPINION

In this appeal, the appellants, Evergreen Media Holdings, LLC and Tony 

DeRosa-Grund (collectively “Evergreen) contend the trial court erred by granting a 

special appearance filed by the appellee, FilmEngine Entertainment, LLC. 

(“FilmEngine”). Evergreen raises two issues on appeal: (1) whether the trial court 

abused its discretion in denying Evergreen’s motion for continuance to conduct 
2

jurisdictional discovery; and (2) whether the trial court erred by granting 

FilmEngine’s special appearance. We affirm. 

I. Background

Evergreen is a Texas limited liability company, and Tony Derosa-Grund is 

its executive chairman. FilmEngine is a Delaware company licensed to do business 

in California. Anthony Rhulen is its chief executive officer. In July 2013, 

Evergreen entered into a contract with FilmEngine regarding two film projects. On 

February 7, 2014, Evergreen sued FilmEngine for breach of contract, breach of an 

implied covenant of good faith and fair dealing, and for declaratory judgment. 

Evergreen alleged that it entered into agreements with FilmEngine in connection 

with two movie productions wherein Evergreen would provide script-writing 

services to FilmEngine. Evergreen further alleged that it performed under the 

agreements, but FilmEngine failed to pay Evergreen for the writing services and 

thus materially breached its agreements with Evergreen. 

On March 21, 2014, FilmEngine filed a special appearance and asked the 

trial court to dismiss the lawsuit for lack of personal jurisdiction because 

FilmEngine had no purposeful contacts with the State of Texas. Evergreen filed its 

response on May 8, 2014. On August 22, 2014, the trial court granted 

FilmEngine’s special appearance and dismissed the case. Evergreen appealed. See
3

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp. 2015) (providing 

for interlocutory appeal of grants or denials of a special appearance of a 

defendant).

II. Motion for Continuance

In its first issue, Evergreen contends the trial court abused its discretion in 

denying its request for a continuance to allow it to conduct jurisdictional discovery 

before the trial court ruled on FilmEngine’s special appearance. An appellate court 

will not disturb the trial court’s ruling on a motion to continue a special appearance 

hearing to obtain discovery absent a showing of a clear abuse of discretion. BMC 

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002); Barron v. 

Vanier, 190 S.W.3d 841, 847 (Tex. App.—Fort Worth 2006, no pet.) (op. on 

reh’g).

Texas Rule of Civil Procedure 120a(3) governs jurisdictional discovery. The 

rule provides that “[t]he court shall determine the special appearance on the basis 

of the pleadings, any stipulations made by and between the parties, such affidavits 

and attachments as may be filed by the parties, the results of discovery processes, 

and any oral testimony.” Tex. R. Civ. P. 120a(3). Rule 120a(3) further states that if 

it should appear from reasons stated in the opposing party’s affidavits that he 

cannot “present by affidavit facts essential to justify his opposition, the court may 
4

order a continuance to permit affidavits to be obtained or depositions to be taken or 

discovery to be had or may make such other order as is just.” Id. In deciding 

whether a trial court abused its discretion by denying a motion for continuance 

seeking additional time to conduct discovery, the Texas Supreme Court has 

considered the following non-exclusive factors: (1) the length of time the case has 

been on file; (2) the materiality and purpose of the discovery sought; and (3) 

whether the party seeking the continuance has exercised due diligence to obtain the 

discovery sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 

(Tex. 2004) (considering these factors in the summary judgment context); Barron, 

190 S.W.3d at 847 (considering these factors in the special appearance context).

Evergreen filed its lawsuit on February 7, 2014. FilmEngine filed its special 

appearance on March 21, 2014. According to the parties’ appellate briefing, 

FilmEngine’s special appearance was originally set for submission on April 30, 

2014. Evergreen filed its response to FilmEngine’s special appearance on May 8, 

2014. The trial court issued its ruling on FilmEngine’s special appearance on

August 22, 2014. Evergreen argues that the length-of-time factor weighs in its 

favor because it had less than two months to conduct discovery before it was 

required to file a response. FilmEngine responds that Evergreen actually had over 

five months to conduct discovery because the trial court did not grant the special 
5

appearance until August 22, 2014. FilmEngine contends this was sufficient time 

for Evergreen to conduct jurisdictional discovery. 

In its original petition, Evergreen alleged that the court had personal 

jurisdiction over FilmEngine “because this lawsuit arises from, was connected with 

an act or transaction, and relates to the purposeful acts of the non-resident 

Defendant in Texas, and those purposeful acts directed towards Texas.” Thus, 

Evergreen alleged only specific jurisdiction against FilmEngine. See Searcy v. 

Parex Res., Inc., Nos. 14-0293, 14-0295, 2016 WL 3418248, at *5, 9 (Tex. June 

17, 2016) (internal citations and quotations omitted) (explaining that general 

jurisdiction arises when the defendant’s contacts with the forum state are so 

continuous and systematic as render the defendant essentially at home in the forum 

state, whereas specific jurisdiction exists when the plaintiff’s claims arise out of or 

are related to the defendant’s contact with the forum state). However, in 

Evergreen’s motion for continuance, it asked the court for a continuance to conduct 

additional discovery “evidencing FilmEngine’s general contacts with Texas.” 

Evergreen explained that it would seek discovery of evidence that FilmEngine 

“purposefully markets their movies to Texas residents, advertises in Texas, sells 

their movies to Texas residents, and otherwise engages in significant business with 

Texas residents.” 
6

Evergreen did not allege in its motion for continuance that it had exercised 

due diligence in conducting discovery. There is no evidence in the appellate record 

that Evergreen attempted to engage in discovery related to the special appearance,

and Evergreen admitted in its motion for continuance that it had not conducted any 

jurisdictional discovery. 

Evergreen relies on Barron v. Vanier to support its position that it was 

entitled to a continuance. In Barron, the appellate court held that the trial court 

abused its discretion in denying the plaintiff’s motion for continuance of a special 

appearance hearing to permit him to conduct further discovery on the issue of 

personal jurisdiction where the special appearance hearing was held two months 

after the filing of the special appearance, and the plaintiff sought information 

which, if it existed and was discovered, could support his allegations of specific 

personal jurisdiction over the defendants. 190 S.W.3d at 847-51.

This case is distinguishable from Barron. In Barron, all three factors 

weighed in favor of granting the motion for continuance, while, here, the 

application of the factors is not so clearly defined. See id. The first factor does tend 

to support a continuance. Evergreen had less than two months to conduct discovery 

before its response to the special appearance was due. See id. at 847-48.
7

The second factor weighs against Evergreen’s motion for a continuance. In 

Barron, the plaintiff alleged personal jurisdiction over defendants based on specific 

jurisdiction and then sought discovery of facts relating to both specific and general 

jurisdiction. Id. at 849. FilmEngine contends Evergreen only sought discovery on 

matters related to general jurisdiction. Evergreen responds that it sought discovery 

of matters relevant to specific personal jurisdiction when it requested to depose

Rhulen about various factual misstatements Rhulen made in his affidavit regarding 

the agreements. However, Evergreen’s request in its motion for continuance was 

not as specific as Evergreen now contends on appeal; rather, in pertinent part, 

Evergreen argued the following to the trial court:

44. Upon information and belief, FilmEngine purposefully 

markets their movies to Texas residents, advertises in Texas, sells 

their movies to Texas residents, and otherwise engages in significant 

business with Texas residents. Plaintiffs, however, do not have 

personal knowledge of the extent of FilmEngine’s contacts with Texas 

and its residents that are unrelated to this lawsuit, and would therefore 

need to conduct discovery before providing the Court with affidavits 

and other documents evidencing FilmEngine’s general contacts with 

Texas.

45. Plaintiffs request that the Court permit them to serve 

requests for production, requests for admission, and interrogatories 

relating to FilmEngine’s contacts with Texas. Further, once Plaintiffs 

receive and review FilmEngine’s responses, they intend to request the 

deposition of FilmEngine’s corporate representative as well as its 

CEO, Anthony Rhulen, who provided an affidavit in support of 

FilmEngine’s Special Appearance. Because the jurisdictional issue 

will not be ripe for the Court’s consideration until [all] of the 
8

jurisdictional facts are known—and not just those about which Mr. 

Rhulen decided to advise the Court—the Court should defer ruling on 

FilmEngine’s Special Appearance for at least 90 days so that the 

parties can engage in jurisdictional discovery.

(internal footnotes and citations omitted). Evergreen argued that the trial court

should not decide the special appearance until it had all jurisdictional facts, but the 

only facts Evergreen specifically identified as being unknown in its motion for 

continuance are those related to general jurisdiction. Therefore, we conclude the 

facts Evergreen specifically sought to discover were not relevant to Evergreen’s 

allegations that personal jurisdiction existed over FilmEngine on the basis of 

specific personal jurisdiction. 

Application of the third factor supports the trial court’s denial of Evergreen’s 

motion for continuance. In Barron, the plaintiff served requests for production, 

requests for disclosure, and notices of depositions. Id. at 850. Here, there is no 

evidence in the record that Evergreen attempted to diligently use the rules of civil 

procedure for discovery. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 

(Tex. 1988) (addressing diligence factor). Evergreen contends that because it only 

had two months, it was unable to propound discovery. FilmEngine responds that 

two months was enough time to at least attempt to engage in discovery. 

FilmEngine argues that Evergreen’s lack of diligence is further reflected in the fact 

that it did not attempt jurisdictional discovery after filing its response. Based on the 
9

record, we note that after submission of the special appearance, the trial court 

delayed its ruling for approximately three months, and Evergreen did not seek to 

conduct discovery or file supplemental affidavits. See Tex. R. Civ. P. 120a(3) 

(providing the court shall determine a special appearance based on the pleadings, 

stipulations, affidavits and attachments filed by the parties, oral testimony, and the 

results of discovery processes); Phillips Dev. & Realty, LLC v. LJA Eng’g, Inc., 

No. 14-14-00858-CV, 2016 WL 3610457, at * 6 (Tex. App.—Houston [14th Dist.] 

June 30, 2016, no pet.) (holding that a trial court has discretion to consider latefiled affidavits in special appearance proceedings); Tempest Broad. Corp. v. Imlay, 

150 S.W.3d 861, 870 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (suggesting 

that Rule 120a(3) appears to give the trial court discretion to grant the party 

opposing a special appearance other forms of relief when the court deems it “just” 

to do so).

Based on our consideration of all the factors, it was not an abuse of 

discretion for the trial court to deny Evergreen’s motion for continuance. See Joe, 

145 S.W.3d at 161. This is not a situation where Evergreen was unable to present 

facts to support its opposition to FilmEngine’s special appearance. See Tex. R. Civ. 

P. 120a(3). Evergreen submitted an unsworn declaration that specifically disputed

FilmEngine’s facts denying that the court had specific personal jurisdiction. See
10

Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (West Supp. 2015) (providing that 

“an unsworn declaration may be used in lieu of a written sworn declaration, 

verification, certification, oath, or affidavit required by statute or required by a 

rule, order, or requirement adopted as provided by law”). Additionally, a 

substantial amount of the information regarding general jurisdiction that Evergreen 

seeks is contained in the record, including that FilmEngine does not maintain an 

office in Texas, does not own property in Texas, does not employ any Texas 

residents, has no accounts in Texas, has not purchased assets in Texas, and has 

never engaged in business in Texas. See In re Guardianship of Cardenas, No. 13-

09-00560-CV, 2010 WL 2543650, at *10 (Tex. App.—Corpus Christi June 24, 

2010, no pet.) (mem. op.) (concluding that plaintiff’s rights were not disregarded 

when most of the additional facts sought by plaintiff were already contained in the 

record). 

We overrule Evergreen’s first issue.

III. Special Appearance

In its second issue, Evergreen contends the trial court erred by granting 

FilmEngine’s special appearance. 
11

A. Standard of Review and Burdens of Proof

The question of whether a court has personal jurisdiction over a nonresident 

defendant is a question of law we review de novo. Kelly v. Gen. Interior Constr., 

Inc., 301 S.W.3d 653, 657 (Tex. 2010). In a special appearance, the plaintiff and 

the defendant bear shifting burdens of proof. Id. at 658. The plaintiff bears the 

initial burden to plead sufficient allegations to bring the nonresident defendant 

within the reach of Texas’s long-arm statute. Id. If the plaintiff pleads sufficient 

jurisdictional allegations, then the defendant bears the burden to negate all bases of 

personal jurisdiction alleged by the plaintiff. Id. It is the plaintiff’s pleadings that 

define the scope and nature of the lawsuit; thus, the defendant’s burden is only to 

negate jurisdictional allegations alleged in the plaintiff’s pleading. Id. A defendant 

may negate the plaintiff’s jurisdictional allegations on either a factual or legal 

basis. Id. at 659. If the nonresident defendant presents evidence that it had no 

contacts with Texas, then it effectively disproves the plaintiff’s allegations. Id. But, 

the plaintiff may respond with its own evidence affirming its allegations. Id. As 

such, the trial court must frequently resolve fact questions before deciding the 

jurisdictional issue. BMC Software, 83 S.W.3d at 794. We will not “disturb a trial 

court’s resolution of conflicting evidence that turns on the credibility or weight of 

the evidence.” Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.—Austin 2005, 
12

no pet.). “When a trial court does not issue findings of fact and conclusions of law 

with its special appearance ruling, all facts necessary to support the judgment and 

supported by the evidence are implied.” BMC Software, 83 S.W.3d at 795. If the 

appellate record includes a reporter’s and clerk’s record, implied findings are not 

conclusive and may be challenged for legal and factual sufficiency. Id. 

Finally, we must be mindful that due process requires our jurisdictional 

inquiry to be separate and distinct from the underlying merits of the parties’ 

claims. Booth v. Kontomitras, 485 S.W.3d 461, 476-77 (Tex. App.—Beaumont

2016, no pet.). Thus, when viewing Evergreen’s jurisdictional allegations, we ask 

only whether Evergreen’s allegations are sufficient to invoke the exercise of 

personal jurisdiction over FilmEngine without regard to the merits of Evergreen’s 

claims. See id. at 477.

B. Personal Jurisdiction

Our consideration of personal jurisdiction involves issues of both federal and 

state law. Searcy, 2016 WL 3418248, at *5. A nonresident defendant is subject to 

the personal jurisdiction of Texas if (1) the Texas long-arm statute authorizes the 

exercise of jurisdiction, and (2) the exercise of jurisdiction comports with federal 

and state constitutional due process guarantees. Kelly, 301 S.W.3d at 657. Because 

the Texas long-arm statute provides for personal jurisdiction that extends to the 
13

limits of the United States Constitution, federal due process requirements “shape 

the contours of Texas courts’ jurisdiction reach.” Searcy, 2016 WL 3418248, at *5.

Personal jurisdiction can be established over a nonresident only if the defendant 

has purposefully established “minimum contacts” with the forum state and the 

exercise of jurisdiction over the defendant comports with “traditional notions of 

fair play and substantial justice.” Daimler AG v. Bauman, 134 S. Ct. 746, 754 

(2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 

923 (2011)); Searcy, 2016 WL 3418248, at *5. 

As discussed above, Evergreen only alleged specific personal jurisdiction, 

which exists when the defendant purposefully avails itself of conducting activities 

in the forum states and the cause of action arises from or is related to those 

activities. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); Searcy, 

2016 WL 3418248, at *5. The first step in the personal jurisdiction analysis is to 

determine whether a nonresident defendant purposefully availed itself of the 

benefits and protections of the state’s laws by establishing minimum contacts with 

Texas. In the “purposeful-availment” analysis as applied to specific personal 

jurisdiction: (1) only the defendant’s contacts with Texas are considered; (2) the 

defendant’s contacts must be purposeful, rather than random, fortuitous, isolated, 

or attenuated; (3) the defendant must have sought some benefit, advantage, or 
14

profit by availing itself of Texas jurisdiction. Michiana Easy Livin’ Country, Inc. v. 

Holten, 168 S.W.3d 777, 785 (Tex. 2005); see also Searcy, 2016 WL 3418248, at 

*5. Our analysis is focused on the quality and nature of the defendant’s contacts, 

not the number of contacts. Am. Type Culture Collection, Inc. v. Coleman, 83 

S.W.3d 801, 806 (Tex. 2002). “Even a single purposeful contact may be sufficient 

to meet the requirements of minimum contacts when the cause of action arises 

from the contact.” Micromedia v. Automated Broad. Controls, 799 F.2d 230, 234 

(5th Cir. 1986); see also Crithfield v. Boothe, 343 S.W.3d 274, 286 (Tex. App.—

Dallas 2011, no pet.).

The United States Supreme Court has explained that an individual’s contract 

with a nonresident defendant cannot alone establish sufficient minimum contacts in 

the plaintiff’s home forum for specific jurisdiction to exist. Burger King, 471 U.S. 

at 478; see Walden v. Fiore, 134 S. Ct. 1115, 1122-23 (2014); Hoagland v. 

Butcher, 474 S.W.3d 802, 815 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

The Court has rejected the notion that personal jurisdiction is determined solely by 

the place of contracting or of performance. Burger King, 471 U.S. at 478. The 

Court explained that in determining whether a defendant has purposefully 

established minimum contacts within the forum state in a contract situation, the 

court should consider the parties’ “prior negotiations and contemplated future 
15

consequences, along with the terms of the contract and the parties’ actual course of 

dealing[.]” Id. at 479. Only those acts which relate to the formation of the contract 

and the subsequent breach are relevant in a specific jurisdiction analysis. Religious 

Tech. Ctr. v. Liebreich, 339 F.3d 369, 375 (5th Cir. 2003). Ultimately, the goal of 

our analysis is to determine whether a nonresident’s conduct and connection to a 

forum state are such that he should reasonably anticipate being haled into court 

there. Burger King, 471 U.S. at 474-75.

“The contract’s place of performance is an important consideration.” 

Hoagland, 474 S.W.3d at 815. If a contract is specifically designed to benefit a 

nonresident defendant with a Texas resident’s skills performed in Texas, then it is 

reasonable to subject the nonresident defendant to Texas jurisdiction in connection 

with litigation arising from that contract. Id. We will also consider the contract’s 

choice-of-law provision. Burger King, 471 U.S. at 482. A nonresident’s action in 

sending funds to Texas in relation to a contract is another factor to consider. See 

Bissbort v. Wright Printing & Pub. Co., 801 S.W.2d 588, 589 (Tex. App.—Fort 

Worth 1990, no writ) (considering it a relevant fact that a nonresident defendant 

wired a large sum of money to a Texas bank in determining minimum contacts); 

but see Falcon Crest Aviation Supply, Inc. v. Jet Mgmt., LLC, No. 14-11-00789-

CV, 2012 WL 4364661, at *4 (Tex. App.—Houston [14th Dist.] Sept. 25, 2012, no 
16

pet.) (mem. op.) (stating that a nonresident’s defendant’s actions in sending 

payment to Texas did not support a finding of jurisdiction when place of payment 

was dictated by plaintiff). A nonresident’s action in initiating phone calls from the 

nonresident’s state directed to Texas is not enough to satisfy the minimum contacts 

requirements. See Hsu v. Liu, No. 09-06-423 CV, 2007 WL 3395644, at *1–4 

(Tex. App.—Beaumont Nov. 15, 2007, pet. denied) (mem. op.).

As alleged by Evergreen, “[p]ersonal jurisdiction over the non-resident 

Defendant is proper because this lawsuit arises from, was connected with an act or 

transaction, and relates to the purposeful acts of the non-resident Defendant in 

Texas, and those purposeful acts directed towards Texas.” Evergreen further 

alleged in its petition that FilmEngine entered into the agreements with Evergreen, 

a Texas business, and DeRosa-Grund, a Texas resident and that FilmEngine 

“transact[ed] business in Montgomery County, Texas.” A plaintiff is not required 

to plead in its petition the theories or bases of personal jurisdiction upon which it

relies. Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.] 

2005, no pet.). To meet its initial burden, it is sufficient if the plaintiff pleads facts 

sufficient to bring a nonresident defendant within the provisions of the long-arm 

statute. Id. A plaintiff satisfies this minimal requirement by an allegation that the 

nonresident defendant was doing business in Texas. Id.; see also Tex. Civ. Prac. & 
17

Rem. Code Ann. § 17.042(1) (West 2015). Here, we conclude Evergreen met its 

initial burden and the burden then shifted to FilmEngine to negate every basis for 

jurisdiction alleged by Evergreen. See Huynh, 180 S.W.3d at 619.

To negate Evergreen’s pleadings, FilmEngine denied in its special 

appearance that it had contacts with Texas or had purposefully availed itself of the 

privilege of doing business in Texas. FilmEngine further stated that it is a 

Delaware limited liability company, has no offices in Texas, and owns no property 

in Texas. To respond to the allegations that FilmEngine engaged in purposeful acts 

directed towards Texas, FilmEngine submitted the affidavit of its CEO, Anthony 

Rhulen. In his affidavit, Rhulen stated that FilmEngine has never purposefully 

sought to enter into a contract with a Texas resident for services to be provided in 

Texas, except for legal counsel in this case. Regarding the agreements with 

Evergreen, Rhulen stated that “[a]ll discussions, meetings, and investigations 

before and after the agreements were conducted in California[,]” where 

FilmEngine’s principal place of business is located. Rhulen testified that the 

agreements at issue had a choice-of-law provision designating the application of 

California law. Rhulen testified that DeRosa-Grund solicited him in California in 

the past about rights he had in some intellectual property. He stated that DeRosaGrund approached him in July 2013 in California regarding the two motion picture 
18

deals he had and asked FilmEngine to become involved with the production of the 

projects and to assist in obtaining financing and distribution of the product. Rhulen 

testified that every in-person meeting regarding the projects occurred in California. 

He further stated that the two agreements forming the basis of Evergreen’s lawsuit 

were executed in California. He denied ever meeting DeRosa-Grund in Texas. 

Rhulen stated that he primarily communicated with DeRosa-Grund by email and 

some by phone, but he had no knowledge of DeRosa-Grund’s locations during 

these communications. The agreements have no reference to Texas, and there is no 

indication or agreement that production or distribution would take place in Texas. 

Evergreen argues that FilmEngine is subject to the specific jurisdiction of 

Texas courts because (1) FilmEngine entered into the agreements with a Texas 

resident and Texas business; (2) Evergreen performed all obligations under the 

agreements in Texas; (3) FilmEngine solicited Evergreen in Texas to initiate 

negotiations for the agreements; (4) Evergreen executed the agreements in Texas; 

(5) FilmEngine mailed the executed copies of the agreements to Evergreen in 

Texas; (6) FilmEngine knew Evergreen was located in Texas and performing 

obligations under the agreements in Texas; (7) FilmEngine communicated with 

Evergreen hundreds of times over the course of more than one year about the 

execution and performance of the agreements while Evergreen was located in 
19

Texas; (8) FilmEngine made a wire transfer of funds to Evergreen’s bank in Texas; 

(9) FilmEngine mailed a Form 1099 to Evergreen in Texas; (10) the agreements 

contemplated a long-term relationship, and therefore FilmEngine contemplated 

having continued contacts with Evergreen in the future related to the agreements; 

and (11) FilmEngine negotiated the agreements with Evergreen for more than a 

year, while Evergreen was located in Texas. Evergreen filed DeRosa-Grund’s 

affidavit with the trial court to support these allegations. Many of Evergreen’s

allegations point to its own actions, but Evergreen’s actions are not relevant to our 

determination of whether FilmEngine purposefully availed itself in Texas. See

Michiana, 168 S.W.3d at 785; see also Searcy, 2016 WL 3418248, at *5.

Evergreen’s argument that FilmEngine is subject to specific jurisdiction in Texas 

because FilmEngine communicated with DeRosa-Grund numerous times while 

DeRosa-Grund was allegedly located in Texas is unpersuasive. Evergreen seems to 

suggest that these communications show FilmEngine targeted or purposely 

directed communications towards Texas or a Texas resident. We note that the 

initial emails between DeRosa-Grund and FilmEngine dated in June and August of 

2012, contain no reference to DeRosa-Grund or Evergreen’s physical address in 

Texas. There is a vague reference by DeRosa-Grund that he has a friend “here in 

Houston” in one of the emails dated months after the parties started 
20

communicating about the projects. DeRosa-Grund’s email signature block contains 

only his name, title, the name of the company, his direct phone line, fax number, 

and email address. It does not contain his physical address. In August of 2013, over 

a year after the initial email communication reflected in the record, there is an 

email communication that references an address for Evergreen in Texas. 

FilmEngine alleges and supports with affidavit testimony that DeRosaGrund reached out to FilmEngine first while DeRosa-Grund was located in 

California, not Texas. Rhulen also states that all in-person meetings occurred in 

California, that DeRosa-Grund represented to him that his film representative was 

located in California, and that his legal counsel was located in California. 

Additionally, as FilmEngine argues in its brief, DeRosa-Grund could have been 

anywhere in the world when he received the communications from FilmEngine, 

not just Texas.

While Evergreen’s affidavit controverts some of FilmEngine’s allegations 

and evidence regarding jurisdiction, at this stage of the litigation, we must presume 

the trial court resolved all factual disputes in favor of its judgment. See Coleman, 

83 S.W.3d at 806. We conclude FilmEngine’s evidence conclusively negates all 

jurisdictional grounds alleged by Evergreen. FilmEngine’s motion and affidavit 

establishes that DeRosa-Grund approached FilmEngine in California, all in-person 
21

meetings to negotiate the agreements occurred in California, the agreements were 

executed in California, the parties agreed that California law would govern the 

agreements, and that FilmEngine had no intention to engage Evergreen to perform 

its obligations under the agreements in Texas. Because FilmEngine lacks minimum 

contacts with Texas, we need not determine whether the exercise of jurisdiction 

would offend traditional notions of fair play and substantial justice. See Baldwin v. 

Household Int’l, Inc., 36 S.W.3d 273, 277 (Tex. App.—Houston [14th Dist.] 2001, 

no pet.). For these reasons, we overrule Evergreen’s second issue.

Having held that the trial court did not err in denying Evergreen’s motion for 

continuance and granting FilmEngine’s special appearance, we affirm the trial 

court’s judgment.

AFFIRMED.

______________________________

 CHARLES KREGER

 Justice

Submitted on June 5, 2015

Opinion Delivered September 22, 2016

Before Kreger, Horton and Johnson, JJ.