Reversed and Memorandum Opinion filed June 27 , 2023

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00155

- CV

CUSHMAN & WAKEFIELD U.S., INC. AND DARRIN BOYD , Appellant s
V. SHARESTATES INVESTMENTS, LLC AND PALLASITE REO 2018

- 1, LLC , Appellee s

On Appeal f

rom the 152nd District Court Harris County, Texas Trial Court Cause No. 2020

- 04844

MEMORANDUM OPINION Appellee Sharestates Invest ments, LLC ( “ Sharestates ” ) lent money to a borrower who defaulted on at least two of its loans ; one pertain ing to a proper ty in Texas, another in New Jersey

. Though the underlying action pertains to both loans , this appeal only relates to the loan on the New Jersey property

. In tandem with convention al avenues to recover its loss on the New Jersey Property loan , 1

1 Sharestates has also p urs ued other actions in connection with the New Jersey loan.2

Shar estates pursued the borrower a nd others i n Texas for fraud related to both loan s to recover funds Sh arestates disbursed to the two escrow agents after title transferred from seller to borrower

. Sharestates added claims ag ainst the out

- of

state seller of the New Jersey pr operty , the seller ’ s ou t

- of

- s tate agents (natural and corporate) and the corporate out

- of

- state agent ’ s parent company , all of whom filed special appearances

. After an evidentiary hearing , the trial court sustained the special appearance s filed by the seller and t he corporate o ut

- of

- state agent ’ s parent company but denied the special appearances filed by the out

- of

- state agents , Darrin Boyd and Cushman & Wakefield U. S., Inc. (CWUS) , appellants. Boyd and CWUS filed this interlocutory app eal. We reverse a nd remand with instructi o ns to the trial court to dismi ss appellant s for lack of personal jurisd iction.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND
This case involves two back

- to

- back real estate transa ctions and accompanying financing of pro pe rty locat ed in New Jersey ( “ New Jersey
Pro p erty ” ) on Dec. 28, 2017

. The first conveyance involved Ardagh Glass Container, Inc., a Delaware corporation based in Muncie, Indiana ( “ Ardagh ” ), when it charitably gifted (pursuant to Section 170 of the Internal Revenue C o de ( “ Se ction 170 ” )) the New Jers e y P roperty to Mineral County Development Authority ( “ MCDA ” ), a non

- profit political subdivision of Mineral County, West Virginia (the “ Ardagh Transaction ” ). Almost immediately thereafter, MCDA sold the New Jersey Property to 83 Griffith, LLC , a company o w ned by Harold Pol k ( “ Pol k ” ) . The two transactions can be summarized as follows:3 A ppellee S harestates agreed to fund a loan of $3,830,000.00 to 83 Grif fit h to enable it to purchase the New Jersey Property for a n alleged purchase price of $5,900,000.00 f rom MCDA ( “ New Jersey Property Sale ” , or “ the Flip Sale ” )

. The Flip Sale w as th e second of two back

- to

- bac k conveyances of the same parcel on the same da y. Appellants Boyd and CWUS p articipated in both the A rda gh Transa ction and the Flip S ale

. After it became clear that MCDA would be the recipient in the Ardagh Transaction , CWUS entered into a Consulting Agreement with MCDA , to consult with MCDA for the purpose of selling the property after the Ard agh Transacti on , and a t M CDA ’ s request, ensured tha t any sale oc curred on the same day following the Ardagh Transaction. To this end Boyd and CWUS publi cized the sale for a potential buyer on Loopnet, a natio nal we b

- advertising service used to list co mmer cial properti es. The pro perty was listed for a purc hase price o f 2.95 million dollars , the amount from which pursuant to the Consulting Agreement , CWUS would be entitle d to 65%. In response to the Loopnet listing, Texan Harold Polk ( “ Po lk ” ) reached out to Boyd an d CW US expres si ng interest in p urchasing the Ne w Jersey Property

. Polk , thro ugh his various corporate counterparts, entered an agreement and ultimately consummated the s ale with MCDA to purchase the New Jersey Property for $ 5.9 milli on , twice the liste d price

. Polk s ecured financing from appellee Sha restates an d a second l ender, BDFI , allegedly unbekn ownst to Sharestates

.4

Sharestates agreed to loan Polk roughly 65 % of the acquisition pr i ce, which at closing resulted in its w ir e transmi ssion of $ 3,740,070.00 to the Sh arestate s

selected title company i n New Y ork, Atlantis National Services, Inc. , actin g as the settlement agent. Likewise, at closing BDFI wired $2,317,500.00 to the settlem ent agent

. Through contrac t amendments , Polk and MCDA agreed that purcha se funds in excess of the l i st p rice of $ 2. 95 mill ion would be de voted to improvement s to be

se t up in escrow accounts . A mend ments also e stablished that Polk ’ s New Jersey
company , 83 Griffith Street , LLC would be designated as the buyer.

The record shows , and no party disputes, that Boyd an d CWUS played a central role in ensuring that the Ardagh Transaction and the Flip Sale occurred

. Thi s included amo ng other tasks, drafting and cir culating the contracts and contract amendments for signature

. Boyd serv e d as the self

- designated point person for
many co mmunications between the respective buyers and sellers, their agents, and the title comp any

. It is also undisputed in the record tha t neither Boyd nor CWUS ever

c ommuni cated w ith appellees or any o f their agents , were involved in appellees ’ lendin g agree ment with Polk, nor were ever provided a copy of the Sharestate/ 83 Griffith lending agreement.

After four payments 8 3 Griffith stopped makin g payments under the loan and Sharestates foreclosed on the p rope rty, but was unable to retrieve the money d evoted to the improvement escrow accounts. 2

CWUS is organized under the laws of Missouri and allegedly has its principal place of business in Chicago. Appell ant Boyd lives in Indiana and

2 Shares t at es obt ai ned t itle to th is property by a fore closure action in New Je rsey and secured an agreed ju dgment in a federal lawsuit for monies due under the mort g age loan

.5

allegedly is an independe nt contra ctor to CWUS . Boyd was a consulta nt to A rdough in the fir st transaction and was a consultant to MCDA in the sec ond transaction.

Sharestates assert s that CWUS and Bo yd committed common

- law and statutory fraud ( and frau dulent inducement ) , alleging the tw o were engaged in a joint venture wi th MCDA and that they were involve d in a civil conspiracy with BDFI, Ehlert Law PC, and MCDA.

The core of Sharestate s ’ s claims depend on allegations that various information was misre presented or concealed from it conce r ning the closing of the
New J ersey proper ty , including :

“ [New Jersey Property] Loan AP% ” and “ Real [New Jersey Property] Purchase Price ”

- Sharestates alleges that its underwriting requirements restricted its loan on th e New Jersey property to 65% of the a c quisition price

. Sh arestates ’ s lo an was based on the representation that the purchase price for the property was $5,900,000.00

. Accordingly, Sharestates authorized a loan of $3,830,000.00 ( it ultimately wired $ 3,740,07 0.00 )

. But the funds actua lly paid t o the seller, MDCA, to acquire th e New J ersey property
were $2,604, 710.00 ; thus, Sharestates contends that it unk now ingly funded 100% of the purchase.

“ True source of [ Non

- Sharestates ] Cash at Closing ”

- Sharestates ’ s a lleges that “ Defendants ” (i ncluding C WUS or Boyd) represented that Pol k would personally pro vide the cash at closing ; however, the difference between the alleged sale price of $5,900,000.00 and Sharestates ’ ag reed contribution was provided by an additional loan from BDFI.

“ MDCA fli p profit ”

- Sharestates alleges that the sel ler, MD CA , received $1 ,492,799.75 in profits per Griffith HUD

- 1 Lines 603 and 506. Sharestates alleges that the fact that MDCA made a profit for flipping the property was undisclosed.

“ B DFI fake Improvement Escro w ” and “ Eh lert fake Improvement Escrow ”

- S haresta tes alleges th at “ BDFI was the trustee of a Construction Trust created expressly for the purpose of remediation of6

environmental contamination to the Griffith Property, but was in reality created to funnel the Lend er ’ s funds to an undisclosed third

party

. ” Sharestates alleges that “ the trustee and/or escrow agent of a second Construction Trust / escrow agreement ostensibly created for the sole purpose of remediation of environmenta l contamination to the Griff ith Pr op er ty, was in reality created to fun nel S ha restates ’ s funds to Polk without Sharestates knowledge. ” Sharestates claims tha t it would not have approved the loan to Polk/83 Griffith Street had suc h information been provided. Boyd and C WUS challe nge d personal jurisdict ion

. A ppellees re sponde d (asse rting general and specific jurisdiction) and the partie s provided the trial court with numerous exhibits to support their respective positions

. In support of specific jurisdictio n Sharestates allege s the f ollowing :

• CW US/Boyd drafted and c oordinate d the ex ecution of the sales contract and amendments, including

- multiple iterations and drafts, with Polk in Texas, and his companies Grove Enterprises, LLC and subsequently 83 Gri ffith, LLC in Port Arthur again through P olk ; and

- the two “ bogu s ” escr ow s to and with B DFI and Ehlert in Texas ;

• CWUS/Boyd (including a series of unexecuted ite rations and drafts) negotiated or ensured the execution of two fraudulent escrow agreements via s ales contract amendments with at least
s ix Texans to benefit fi ve Texans to tal ing $ 2,950,0 00 ;

• CWUS/Boyd drafted, negotiated or ensured a material false sales price i nflated by $ 2,950,000 in the sales contract with the straw

“ buyer ” Texan Polk ;

• CWUS/Boyd participated in dozens of co mmunications to and with Texans whil e t hey were located in Texa s to further the fraudulent transaction ;

• CWUS/Boyd located Texan straw buyer Texan Polk and his related entities ;

• CWUS/Boyd ensured the Texas straw purchaser executed and7

exchanged the bogus c ontract and fraudulent amendm ents ;

• CWUS /Boyd adv ertised in Texa s for straw buyer ;

• CWUS/Boyd orchestrated and ingratiated Boyd/CWU S as the central hub of all communications, drafts and execution of the contracts, contract ame ndments, and related fake escrow agreement s between people an d entities located in Texas (Polk, Grove Enterprises, LLC, Paul Simon, Esq., BDFI, and Jetall Compan ies)

. Boyd and Katie Blastick were both employed by CWUS and enabl ed the mortgage fraud schem e involving at least (10) Texa ns a n d/or entiti es

. CWUS/Boyd transmitted t hese docu ments in to Texa s to Ehlert, Paul Simon, BDFI, Jetall Companies, Polk, Grove En terprises and 83 Griffith, LLC ;

• CWUS/Boyd caused the set up of the fraudulent escrows to occur in Texas by Texas Capital & Title an d Texa n K ell ie Owens, and execution of Texan BDF I ’ s hidd en seco nd mortgage which was executed in Texas, notarized by a Texas No tary

. As a result,

- CWUS/Boyd diverted $ 2 ,520,000 of Sharestates ’ s funds into Texas for the benefit of BDFI ;

- CWUS/Boyd diverted $ 430,000 of Shar estates ’ s funds into Texas for the b enefit of Polk / Eh lert ;

- CWUS/Boyd diverted $ 76,600 of Sharestates ’ s funds into Texas for t he benefit of H

- Cap ital Real Estate ;

• CWUS/Boyd used BDFI ’ s Texas funds of $ 2,317,500 to trick Sharestates into f

unding a $ 3,8 30,000 loan b y falsely identifying t hese funds, w hich wer e locat ed in Texas , as belonging to Polk ; and

• CWUS/Boyd manipulated and directed th e 83 Griffith HUD

- 1 Settlement Statement to contain material false information enabl ing the fake escrow funds to mov e into Texas

. In support of general jurisdiction, Sharestates alleges th at fictions between parent and subsidiaries should be ignored based on CWI ’s Chief Operations Officer ’ s testimony that he regularly made decision s for “multiple entities” , and further alleges :

• CWUS ’ s affiliations with Texas are so ‘ continuous and8

systematic ’ as to render them essentially CWUS are “ at home in Texas ; ”

• CWI handled funds o wed not only to CWUS, but most if not all CWI

- related legal entities from virt ually all transactions a cross the country, including, upon information a nd belief, all Texas closing s

. T hese acts included receiving funds from Texas and disbursing funds into Te xas ;

• CWUS ’ s Chief Operations Office r lives in Texas, has his office in Texas, and pe rfor ms his duties for CWI primarily in his Texas office ;

• CWI websi te states that Lou Cu shman j oined “ Cushman and Wakefield, Inc. (C&W) in 1976 . . . [and] relocated f rom New York . . . to open and head up C& W ’ s new office in Houston ; ” and

• CWI ’ s acqui sition s of brokerage fir ms in Texas after the lawsuit filed “ to take a v irtual stranglehold on Comme rcial Real Estate Brokerage in Texas

. ” Cushman & Wakefield, Inc

. ( “ CWI ” ) and CWUS filed a Joint Verified Amended Special Appearance which included the affid avit of Ka t hy Williams , operations director for the Western Region of CW US , cl arif ying the relations h ips bet ween the various Cushman & Wakefield entities

. Williams explained that CWI

— a company that provides real estate services to its cli ents in the New Yo rk tri

- sta te area , inclu ding valuation and brokerage services

— was organi zed under the laws of the St ate of New York , maintained its principal place of business in New York and was the parent company of Cushman & Wakefield Global, Inc

. , a Delaware corporati on with it s principal pl ace of business in Chicago , Illinois . She expla ined Cushman & Wakefield Glo bal, Inc

. is the parent of CWUS

. She further explained that Cushman & Wakefield of Texas, Inc

. ( " CW Texas " ) is an entity separate and apar t from CWI and CWU S ; CW Texa s is a wholly

- owned subsidiary of CWI and an affiliate of CWUS

. Williams provided that the re was a clear legal and formal differentiation among the various Cushman entities and, specifically ,9

between CWI and CWUS , and that it wa s not uncomm on for an execut ive at CW
Texa s, to provide professional services for others i n the group of companies, su ch

as CWI or CWUS

. She explained that p erforming services and serving as an officer for multiple Cushman family companies, inclu ding CWUS, while working

as an employe e for CW Texas , did not render Richard Cenkus an employee of a ny of the companies for whom he performed such services

. F ollowing the e videntiary hearing, the trial co urt d enied Boyd ’ s and C WUS ’ s special appearances

. Findings o f fact and con clus ions of la w were request ed but not issued

. Boyd and C WUS timely filed t his appeal.

II. I SSUES AND A NALYSIS

A

. Issue s Presented On appeal, Boyd and C WUS raise two quest ion s: w hether t he trial cou rt

er red in denyi ng C W US ’ s spec ial appeara nce and w hethe r t h e trial co u rt erred in d enying Boyd ’ s spec ial ap pearance

. We con sider s ubordinate questions necessa ry for our disposition

.
B. Standard of Review
We review de novo a tr ial court ’ s denial of a special appearance. M & F Worldwide Corp. v. Pepsi

- Cola Met ro. Bottling C o. , 512 S.W.3d 878, 885 (Tex

. 2017). W hen, as in today ’ s case, the trial court does not is sue findings of fact and conclusions of law, we imply all relevant fa cts necessary to support the tri al court ’ s

r uling that are supported by evidence. L ucia no v. Spra yFoamPolymers. com, LLC , 625 S.W.3d 1, 8 (Tex. 2021); Cont ’ l Al loys & Services (Delaware) L LC v. YangZhou Chengde Steel Pipe Co., Ltd. , 597 S.W.3d 884, 891 (Tex . A pp.

— Houston [14th Dist.] 2020 , pet. denie d).10 C. Law Governing Pers onal Jurisdict ion
The Texas long

- arm statu te author izes Texas cour ts to exercise jurisdict ion over a nonresident defen dant who “ does business ” in the state. Tex. Civ. Prac. & Rem. Code § 17. 042. The Supreme Court of Tex as has inter preted the broad language of the Texas long

- arm statu te to extend T exas cour t ’ s personal ju risdiction “ as far as th e federal constitutional req uirements of due process will permit. ” M & F Worldwide , 512 S.W.3d at 88 5. A plaintiff bears the init ial burden

o f pleading allegations su fficient to br ing a nonresid ent defendant within th e scope of the long

- arm statute. BMC So ftware Belgium, N.V. v. Marc hand , 83 S.W.3d 789, 794

– 95 (Tex. 2002). A defendant challenging a Te xas court ’ s personal jurisdictio n must negat e all jurisdictional base s alleged. Id.

A t rial court may constitut ionally e xercise persona l jurisdiction over a pa rty when (1) the nonresident defendant has minimum contacts with the forum state and (2) the asse rti on of jurisdiction complies w ith traditio nal notions of fair play and substantia l ju stice. Int ’ l Shoe Co. v. Washingt on , 326 U.S. 31 0, 316 (1945); Peters

v. Top Gun Exec. Grp. , 396 S.W .3d 57, 62 (Tex. App.

— Houston [14th Dist.] 2013, no pet.).

1

. Minimu m C ontacts
Minimum contacts are sufficient f or personal jurisdiction when the

nonre side nt defenda nt purposefull y avails itself of the p rivilege of conducting

a ctivities within the forum s tate, thus i nvoking the benefits and protections of its laws. M & F W

orl dwide , 512 S.W.3d at 886. “ Th e defendant ’ s activities, whether the y consist of d irec t acts wit hin Texas or c onduct outside Texas, mu st justify a conclusion that the defendant could rea sonably anti cipate being called into a Texas

court. ” Am. Type Culture Co llection, Inc. v. Coleman , 83 S.W.3d 801, 806 (Tex. 2002) (citing World

- Wide Vol kswa gen Corp. v. Woodson , 44 4 U.S. 286, 29711

(1980)). A nonresident defendant ’ s contacts with a forum sta te can give rise to either general or specific jurisdiction. Id.

a. Ge neral Jurisdiction
A company is subject to general jurisdiction in the state of its principal place of busin ess

. Ascentium Capital LLC v. Hi

- Tech the Sch. of Cosmetology Corp. , 558 S. W.3d 824, 829 (Tex. App.

— Houston [14th Dist.] 2018, no pet.)

. Genera l j u risdiction also a rises when a defendant ’ s contacts with the forum state “ are so

‘ co ntinuous a nd systematic ’ as to render [it] essentially at home in the fo rum State. ” M & F Worldwide , 512 S.W.3d at 885 (quoting Goodyear Dunlop Tires Operations, SA v. B row n , 564 U.S. 915, 9 19 (2011)); see also Daimler AG v.
Bauman , 571 U .S. 117, 138 ( 2014 ). General jurisdiction c oncerns a court ’ s ability to exercise jurisdict ion over a nonresident defen dant as to any claim, including claims unrelated to the defendant ’ s c ont acts w ith the foru m. Id. The test for general jurisdiction require s substantial acti vities wit hin the forum a nd is a “ high bar, ” 3
presen ting a more demandin g minimum contacts analysis than for specif ic jurisdiction. TV Azteca v. Ruiz , 490 S.W.3d 29, 37 (Te x. 2016). Even whe n a defendant ’ s contacts may be continuous and s ystematic, the y ar e insuffic ient to confer general jurisdiction if the y fail to rise to th e level of rendering a defen dant

“ essential ly at home in the forum [s]tate. ” Old Republic Nat ’ l T itl e Ins. Co. v. Bell , 549 S.W.3d 550, 565 (Tex. 2018).

b

. Specific J urisdiction
S p ecif ic jurisdi ction through minimum contacts with the forum state is establi shed when the defendant (1) purposefully av ails itself of the privilege of conducting activities in the forum state, a nd (2) the lawsuit arises or relates t o the defe ndant ’ s contac ts w ith the fo rum. Luciano , 625 S.W.3d at 8

– 9. “ Although not

3 Searcy v. Parex R esources, Inc. , 496 S.W.3d 58, 72 (Tex. 2016)

.12

determinative, foreseeability is an importa nt consideratio n in deciding whether the nonresident defendant has pu rpo sefully establishe d “ minimum contacts ” with th e forum st ate. ” BMC Software Belgi um, N.V. v. Ma rchand , 83 S.W .3d 789, 795 (Tex. 2002). Three principles gover n the purposeful

- availment a nalysis: (1) on ly the defendant ’ s contacts with the forum are relevan t, not the unilateral activity of another party o r third person; (2) the defendant ’ s ac ts must be purposeful an d not random, isolated, or attenuated; and (3) t he defendant must seek some benefit, advant age, or profit by availing itself of the jurisdiction suc h that it impliedl y
consents to suit there. Re tamco Operating, Inc . v. Republic Dril ling Co. , 278 S.W.3d 333 , 338 (Tex. 2009). The defendant ’ s activities, w hether they consist of direc t acts within T exas or conduct outside Texas, must justify a conclusi on that the defendant could reasonably anticipate being called into a Texas court. Id.

2 . Fair Pl ay & Substa nti al Justice

“ Once minimum contacts have been esta blished, we must still consi der whether, fo r other reasons, exercising jurisdiction over the nonr esi dent defendant

wou ld nevertheless run afoul of ‘ traditional notion s of fair play and substanti al justice. ’ L uciano , 625 S.W.3d at 18 (quoting Int ’ l Shoe , 32 6 U.S. at 316; TV Azteca , 49 0 S.W.3d at 5 5). “ Only in rare cases, however, will the exercise of ju risdiction not com port with fair play and subs tantial justice when t he nonresident def endant has purposef

ully established minimum contacts with the forum stat e. ” Id. (quoting Spir Star A G v. Kimich , 310 S.W.3d 868, 878 (Tex. 2010) ; TV Azteca , 490 S.W.3d at 55.

W e consider the n onre sident defendant ’ s contacts in light of (1 ) th e burden

o n th e defendan t; (2) the int erests of the forum s tate in adjudicating the di spute; (3) the plaintiff ’ s i nterest in obtaining convenient and eff ective relief; (4) the interstate13

judicial system ’ s i nter est in obtaining t he most efficient resolu tion of

contro vers ies; and ( 5) the shared interest of several s tates in furthering fundame ntal substantive social poli cies.

D. Anal ysis
Because the trial cou rt did not issue findings and conclusions, we imply a ll f indings in favor o f i ts positive jurisdict iona l findin gs

. B ecause Sha restates faile d to allege any facts in support of establishing that Boyd is subject to gen eral jurisdiction in Texa s , we briefly address general jurisdiction as to Boyd

. “ For an indi vidua l, the paradigm forum for the exercise of general juris dict ion is the individual ’ s domicile. ” Goodyear Dunlop Tires Operations, S.A . v. Brown , 564 U.S. 915, 92 4 (2011); accord Chow v. San Pedro , No. 14

- 18

- 00429

- CV, 2019 WL 4021908, at *4 (Tex. App.

— Ho uston [14th Dist.] Aug. 27, 2019, pet. denied) (mem. op.). The evidence w as that Boyd i s a lifelong citizen and resident of Indiana. Be cause there is no evidence t hat Boyd holds a license in Texas or ever ev en traveled to Texas for any purpose in connecti on wi th the MCDA Transaction , and instead the only evidence is t hat he is a lifelong cit izen and resident of Indiana who works in Indian a under a n Indian a lic ense , Boyd ’ s domicile is not Texas and he is not subject to general jurisdiction in Texas. Fisher v. First Chap el Dev. LLC , No. 14

- 19

- 00111

- CV, 2021 WL 215410 8, a t *4 (Tex. App.

— Houston [14th Dist.] May 27, 2021, no pet.) ( ex plaining u nder Texas law, a “ domicile ” is (1) an actual residence that is (2) intended to be a permanent home )

. W e conclude that to the extent that the trial court concluded B oyd was subjec t to personal jurisdiction b ased on a theory of general jurisdiction, the tr ial court erred.

1. Did t he trial court err by its implicit holding that C WUS ’ s cont acts with Texas wer e sufficient m in imum contac ts under a theory of general14

juri sdic tion ?

In r e spo nse to Sh arestates ’ alle gations in support of general jurisdiction , CWUS submitted evidence includin g affidavits and deposition testimony establish ing that

• CWUS was a Missouri co rporation with its principal place of business in Chicago, I llinois at all rel evant tim es ;

• 611 of CWUS ’ s 11,683 employees are based in Texas ; conve rse ly, 95 % percent of CWUS ’ s em ployees

— 11,072 people

— are based outside of Texas ;

• CWUS ’ s does not own a Texas bank account ;

• Th ere is no e vidence that CWUS owns any real property in Te x as ;

• Richard Cenkus, the emp loyee of CW Texas and Chief Operating Officer of CW, Inc. testified that he lives and has a home office in Dallas and that he regularly made high level decisions for al l Cushman entit ies , a lso testified that he wor ked from Texas onl y a coupl e of days per w eek and thu s performed most of his work outside of Texas ;

• Cenkus testified that he traveled “ every week, multiple times a week, to multiple offices ; ” and

• At the time t he lawsuit was filed, two of CWUS ’ s officers

— C enkus and Armo ur H ollman, I I

— lived in Texa s

. A company ’ s principal place of business, of ten referred to as a company ’ s

“ nerve center, ” is the place where the company ’ s officers “ direct, control, and coordina te ” the company ’ s activ ities. Hertz Corp. v. Fr iend , 559 U.S. 77, 92

– 93,
1 30 S.Ct. 1181, 175 L .Ed.2d 1029 (2010) ; Ascentium Capital LLC v . Hi

- Tech the Sch. o f Cosmet ology Corp. , 558 S.W.3d 824, 829 (Tex. App.

— Houston [14th Dist.] 2018, no pet.)

. The compa ny ’ s nerve center norma lly is its headquarters, unless that i s no t the act ual center of d irection, control and coordination. Hertz , 559 U .S. at 93, 130 S.Ct. 1181.15

Sharestates presented some testimony suggesting that some important CWUS ’ s decision s were m a de by Cushman & Wakefi eld, Inc. ’ s chief operat ing officer in Tex as and th at Cushman & Wa kefield, Inc. or its Texas affiliate (not CWUS) maintained a home office in Texas. However, Sharestates did not present any subst antial evidence to contradict the asse r tion that CWUS ’ s princ ip al place of bu siness r emains in Illi nois , i.e., n ot Texas

. We th us consider whether Shares tates ’ s proof elevates it to an exceptional case , such that CWUS ha d

“ continuous and systematic contacts ” of an extent and nature that render CWUS

“ essentially at h ome ” in Texas.

T wo cases that Sharesta tes relies up on to support i ts contention that this is such an exceptio nal c ase and general jurisdiction is proper over CWUS , Perkins v. Benguet Consol. Mining Co. 4 and Devon Energy Corp. v. More no , 5 help illustrate th e problem with its conte ntion. In Perk ins , the cour t determined th e facts of the corporate defendant ’ s residen ce w ere “ exceptional ” because of the company ’ s displacement was caused by World War II , the for eign corporation ’ s principa l place of business was Ohi o, not the Philippine s, a nd because the evidence showed that th e president of the corporation was exclusively l ocated in Ohio, and he disch arged all executive duties in running the company during the war in the Ohio office

. Perkins , 342 U.S. at 447

. But CWUS con nection to Texas is , by comparison, un l ik e the relocated mining company ’ s connection to Ohio. The only evidence concerning CWUS ’ s principal place of business was that it was in Illi nois not in Texas, and there was no evi dence adduced that CWUS was ever headquartered or exclusi vely located i n Te xa s . N o evidence shows that CWUS

was run from Texas or that CWUS solici ts business from such office

. Moreover ,

4 Pe rkins v. Benguet C o nsol. Mini ng Co

. , 342 U.S. 437, 447, 72 S. Ct. 413, 419 (1952).

5 Devo n Energy Corp. v. Moreno, No. 01

- 21

- 00084

- CV, 2022 WL 547641, at *8 (Tex. App.

— Houston [1 st Dist.] Feb. 24, 2022)16

even if the tr ial c ourt were to , as Sharest ates ’ s argument suggests, credit Cenkus ’ s sel f

- proclaimed decision

- making power to be so singula r an d essential to CW US as
t he president of the mining company in Perkins , C enkus ’ s regular travel sched ule and limited in

- sta te pr es ence does not lend to the c onclusion that these corporate decisions are being made in Texas ; Texas cannot rea sonably be fou nd t o be a harbor to CWUS ’ s “ nerve center ”

. Sharestates also ref

ers to our sister court ’ s recent Moren o decision to contend that a “ permanent general office ” from which the company “ solicits business in Texas ” supports a finding of general jurisdiction. Devo n Energy Corp.

v. Moreno, 2022 WL 547641, at *8

. Although some testimon y established that Cushman & Wakefield, Inc. , the relat ed entity which the trial cou rt dismissed for lack of personal jurisdiction, maintained an office in Dallas whe re Cenkus woul d

wo rk one or two day s of the week , t he record does not contain evidence tha t CWUS had a “ permanent gene ral office ” in Texas

. E v en if the “ home office ” in Da ll a s described in the record was attributed to CWUS, the record contains to o littl e evidence abo ut t he type and natur e of the office and CWUS ’ s other offices by comparison to jus tify a gene ral

- jurisdi ction finding on t he ba sis of a “ permanent general office ”

. See id . ( finding no general jurisdiction despite significant business presen ce and acti vit y in T exas a nd office in
Texas where there w as “ no evidence of the type and nature of the offices mainta ined ” ). The Court must appraise CWUS ’ s “ activities in their entirety. ” See BNSF Ry. Co. v. Tyrrell , 581 U.S. 402, 414, 137 S. Ct. 1549, 15 59, 198 L. Ed. 2d 36 (2017)

. Under the applica ble standard of r eview , we conclude that the evidence is legally insuffi cient to support a n implied finding that ( 1) Texas is CWUS ’ s principal place of b usiness, or (2) CWUS ’ s contacts are so continuous and17

sys tematic as to rend e r CWUS “ essentia lly at home ” in Texas. See BNSF Ry. Co. v. Tyrrell , 581 U.S. 402, 414, 137 S. Ct. 1 549, 1559, 198 L. Ed. 2d 36 (2017) ; Yahsi v. Visor Muhendislik Insaat Turizm Gida Ve Mekanik Taahhut Ticaret Ltd.
S irketi , 651 S.W.3d 79, 95 (Tex. App.

— Hous to n [14th Dist.] 2021, no pet.)

. 2

. Did the trial court err by its impli cit holding that Boyd ’ s and C WUS ’ s cont acts wi th Texas were sufficient min imum contacts under a theory of specific jurisdic tion ? In response to Sharestates ’ allegatio ns in supp ort of s pe cific jurisdict ion , CWUS and Boyd submitted evidence including affidav its and deposition testimony establish ing t hat

• CWUS entered a Consulting Agreeme nt with MCDA to consult with MCDA for the purpose of selling the New Jersey Property ;

• Boyd ’ s interac tion w ith Polk was pr ompted when Polk made an inquiry through Loopnet about the property ;

• Boyd did not market, advert ise or sell services to Polk, Grove Enterprises, LLC or 83 Gri ffith, LLC in Texas ;

• Neither Boyd nor CWUS sought to s ell the property or t o be
c ompensated for the sale based on any sale price b eyond the price publi cly list ed, $2,950,000 ;

• Boyd w as not a party to Polk/83 Griffth ’ s agree ments or funding arrangements with BDFI o r Sharestates ;

• Boyd did not establish any escrow

. Ra ther he offere d
un co ntroverted test imony that i n drafting documents at Polk ’ s direction, B oyd and C WUS merely drafted amendments to the purchase agreement th at identified BDFI and Elhert as holders of the escrow accounts ;

• Boyd did not perform any service for Polk, 83 Gr if fi th, LLC, Ehlert Law, PC, BDFI, LLC or Jetall Companies ;

• Boyd was no t a party and never saw the E h lert escrow agreement ; and

• Boyd o ffered uncontroverted testimony refuting any contact with18

H

- Cap it al Real Estate

. T he uncontradicted proo f provided by Boyd a nd CWUS negated a substantial portion of allegations Sharestates relie d on in support of its speci fic jurisdiction theory

. Significa ntly , Boyd ’ s testimony c larifies and disproves allegations about his role with respect to the escrow ac counts. Share stat es provided no ev idence supporting t he contention that CWUS or Boyd had any role in the mortgage app lication process or collected any f ee related to the mortgage loan. Additionally, ma ny of the cont acts alleged by Sharesta tes ( and in s om e instances sup port ed by evidence ) a re legally insignificant. The unilateral conduct by pa rties , like Polk, BDFI , and Ehlert , who m Sh arestates contends th at Boyd and CWUS conspired with to de fraud Sharestates , are not material to this jurisdictional analys is

. Guardian R oyal E xch. Assurance, Ltd. v. English China Clays, Pub. Ltd. Co., 815 S .W.2d 223, 227 (Tex. 1991) ( “ the contact must have r esulted from the

n onresident defendant ’ s purposeful conduct and not the unilateral activity of the plaintiff or others ” ). Specificall y, C WU S and Boyd had no invol vement in any post

- closing transactions or even ts regarding the other parti es ’ escrows by which Sharestates asse rts the mortgage fraud was accomplished

. Relatedly , the fact that Boyd and CWUS ar e alleged to have c onspire d with such p arties is also irrelevant

to determine jurisdiction

. Nat ’ l Indu s. Sa nd Ass ’ n v. Gibson , 897 S.W. 2d 769, 773 (Tex. 1995) (t he mere exi stence or allegation of a conspiracy directed at Texas is not sufficient to confer jurisdiction )

. S p ecific jurisdi ctio n could pos sibly be supported by the following undisputed conduct :

• CWUS /Bo yd advertised th e New Jer sey Property on Loopnet, a national advertising website , and Polk made an inquiry through Loopnet about the property ;19

• CWUS/Bo yd , as MCDA ’ s real estate cons ul tants, played a central role processing the paperwork of the transacti on and
co mmunicati ng wit h pa rties to accomplish that end. B oyd fac ilitated the purchase and sale of the New Jersey P roperty between MCDA and 83 Griffith, LLC and Boy d communicated wit h Polk and other Texa ns in the course of representing MCDA in connection with 83 Griffith, LLC ’ s pur chase of the New Jersey P roperty from MCDA. Boyd and CWUS directed the contract and amendments to Polk, who m we presume, wi thout decidin g , was located i n Te xa s

. We consider the quality and nature of th ese acts to determine if t hey are sufficiently purp os e ful. The Loopnet postin g was not targeted sp ecifically towards pot entially interested Texans ; i t targeted potenti ally interested people every where. Th ough

t hey ran their a dvertising campaign through a third party , we presume f or the sake of argument t hat Boyd and CWUS ran the website listing page as their own, and as occurred here, that the website per mitted Polk, a Texas re sident, a means of reach ing o ut a nd contacting Boy d and CWUS directly . Even under this presumption, this functionality is not so “ int eractive ” to deem the use of the web site sufficient to establish purposeful contacts. All Star Enter., Inc. v. Buchanan , 298 S.W.3d 404, 427 (Tex. Ap p

. — Hou st on [14th Dist.] 2009, no pet.) (finding inter active website soliciting online applications for jobs in U tah and Colorado submitted online to anyone viewing for employment too passive to support jurisdiction )

. Sharestates pre sented no ev idence that Te xas re sidents are

tar geted on the website ; to the contrary, the site is acce ssible by “ [a]nybody in the world. ” All Star Enter., Inc. v. Buchanan , 298 S.W.3d 404, 427 (Tex. App.

— Houston [14th Dist.] 2009, no pet.) ; see also Wilkerson v. RSL F unding, L.L. C. , 38 8 S.W.3d 668, 681 (Tex. App.

— Houston [1st Dist.] 2011, pet. denied) ( hol ding that the unilateral act ivities of internet users who might use the search functions of20

Yahoo! and Yelp to find business information in a particular g eographic lo cation

canno t be t he basis for exer cising jurisdiction )

. The li sting and use of Loopnet ’ s website to promote the N ew J ersey property to a nationwide audience does not demonstrate purposeful cont acts with Texas

. We ne xt consider Boyd ’ s role in facilitatin g the sale of the pr operty. Neither Boyd nor any CWUS representative ever visited Texas in connection with the Ne w Jer sey Property sale. Boyd met with Polk onc e in New Jerse y regarding the transaction. The only clear evidence of Boyd ’ s communication with T exas are

em ail s to P olk, a contract amendment draft ed by Boyd or others at CWUS containing a “ Buyer ’ s ” signature b l ock for a Polk ’ s Texas

- based compa ny , and Boyd ’ s own testimony about telephone calls he had with Polk

. E ven presuming that Boyd was aware th at each of his ema il s with P olk wer e received by Polk in
Texas , and that each time Boyd wa s on the phone with Polk, th at Polk was on the other end of the line in Texas , 6 these contact s with Texas were fortuitou s and not purposeful. Alenia Spazio, S.p.A. v. Reid , 130 S.W .3d 20 1, 213 (Tex. Ap p.

— Houston [14th Dist.] 2003, pet. denied) (holding tha t “ num erous telephone and fa csimile communications with people in Texas relating to an alleged contract do not establish minimum contacts ” ) ; Old Republic Nat ’ l Title Ins. Co. v. Be ll , 54 9 S.W.3d 550, 5 60 (Tex. 2018) ( “ On their own, numerous telephone commun icatio ns with people in T exa s do not establish minimum contacts, and we have noted that changes in technology may render reliance on phone calls obsolete as proof of purposeful ava ilme nt

. ” ).

6 Although Boyd had discussions with Pol k and other T exas residents and al though t here was sufficient inform ation for the trial court conclude that Boyd knew or should hav e known he was communicating with T exas residents and with enti ties located in Texas , t he record did not clearly illustrate that Boyd knew or should have kn o wn that hi s com munications w ith Texa ns were re ceived in Texas.21

We ha ve p reviously found Texas

- directed purpos eful availment lac king based on evidence of mu ltiple c ommunications made in furtherance of an out

- of

state re al estate transaction that ultimately does not involve a ny Texas party

. See Bryan v. G ord

on , 38 4 S.W.3d 908 (T ex. App.

— Houston [14th Dist.] 2012, no pet.) (holding no nresident real estate age nts did not target Texas and the relationship between the parties and their communications concerned a one

- time Oregon real estate transactio n that had no conn ec tion to Texas o ther than the fact that mortgagor happened to reside in Texas and was located th ere when she received and signed the contract ) ; see al so Peredo v. M. Holland Co. , 310 S.W.3d 468, 474

– 75 (Tex. App.

— Houston [14th Dist.] 201 0, no pet.) ( ho ldin g

– despite a

reco rd of num erous communications with Texans by the defend ant

– that contacts with Te xas were not purposeful w here none of the contr acting parties were from
Texas in case where nonresident was sued on allegations of misreprese ntations ab out pas t and future paym ents to be made by a Mexican company that he previously owned to secure contract s a nd continue business )

. Today ’ s case is not materially different fro m these cases, which both illustrate that a n out

- of

- state defen dant ’ s i ncidental con tacts a nd communicatio ns w ith Texa ns made in the course of carrying out or fa cilitating an out

- of

- state c ontract does not equate to minimum contacts

. Neither Boyd nor any CWUS ’ s contacts or communications with Texans in this case amounted to any more than an i nc idental compone nt of the work and transaction cen tered els ewhere, in N ew Je rsey

. Under the applic able standard of review, we conclude that the evidence is legally insufficient to sup por t an implied finding that any o f the r elevant cont act s between Boyd or CWUS with Texa s or Texas entiti es was adequately purposeful

. 7

7 Be cause we conclude th at purpos eful avai lment requirement was not established, we need not consider the “ relatedness ” component of the specific jurisdiction analysis or the fair play and s ubstantial just ice component of the minimum co ntact s analysis.22

To the extent the trial court concl uded it could properly exercise personal jurisdiction over Boyd or CWUS based on spe cif ic jurisdiction, the trial court erred.

II I. C ONCLU SION
Because the t ri al court erred in denying Boyd a nd CWUS ’ s special appearance, we susta in their respective issue s , reverse the trial court's order, and

rem and with instructions to the trial court to dis miss the claims against Boyd and CWUS for lack of p ersonal jurisdicti on

.

/s/ Randy Wilson Justice

Panel consis ts of Ch ief Justice Christopher, Justice Bourli ot and Justice Wilson

.