## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 15 - 00309 - CV
FURTEK & ASSOCIATES, L.L.C. AND RICHARD E. FURTE K APPELLANTS

V. MAXUS HEALTHCARE PARTNERS, LLC APPELLEE

---------- FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 017

- 275219

- 14

---------- 

### MEMORANDUM OPINION 1

---------- In this interlocutory appeal, we review the trial cour t’s denial of the special
appearance filed by a ppellants Furtek & Associates, L.L.C. (Furtek & Associates) and Richard Furtek (Fu rtek)

. See Tex . Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp. 2015). We conclude that neither Furtek &

1 See Tex. R. App. P. 47.4.2

Associates nor Furtek had sufficient minimum contacts with Texas for a Texas
court to assert specific jurisdiction over them. We also conclud e that Furtek & Associates and Furtek did not have the type of continuous and systematic general business contacts with Texas that would support general jurisdiction. We therefore reverse the trial court’s order denying the special appearance and render j udgment dismissing the claims against Furtek & Associates and Furtek for lack of personal jurisdiction

. I. BACKGROUND Furtek & Associates assists companies in the health care field with mergers, acquisitions , and restructuring. Its principal place of bu siness is located in King of Prussia, Pennsylvania. Furtek and his wife are the company’s only employees and they both reside in Pennsylvania

. Furtek is a certified public

a ccountant licensed in Pennsylvania and is the sole owner of Furtek & Associates. He has never been licensed as a CPA in Texas. Moreover, Furtek & Associates does not maintain an office, a registered agent, real or personal property, bank accounts, a mailing address, employees, records , or telephone listings in Texas. Nor does Furtek & Associates solicit any business clients in Texas. In January 2012, Furtek & Associates was retained by a Fort Worth company, Texas RHH, LLC d/b/a Renew Home Health Care (Renew ), to assist it with getting its financial records in order for a potential sale of the company. An unrelated , t hird

- party broker in Florida introduced Renew’s president to Furte k;3

Furtek did not solicit Renew’s business by contacting the company in Texas. Furtek & Associates and Renew entered into a contract dated January 31, 2012, which provide d that F urtek & Associates would assist Renew’s “ person nel with organizing [Renew’s] books and re cords in connecti on with a potential transaction. ” The initial engagement consisted of two phases: Phase One: Organize the historical fina ncial statements of the business through February 28, 2012, related add back adjustments and other significant supporting schedules.
Phase Two: If requested by the Company, we w i ll assist with organizing a comprehensive on

- line due diligence room, prepar ing responses to inquir i es from prospective buyers, preparing schedules to an acquisition agreement, and otherwise supporting a transaction process. The contract also covered the possibility of future work as follows : Additionally, at your request we are available to assist you with other matters that fal l within our expertise. This may include the preparation of pro forma financials , evaluation of offers, business presentations, billing assistance as well as compliance and operations assessments.
T he con tract contained a choice

- of

- law clau se, providing that it would be

“ governed by and shall be construed in accordance with the laws of the State of Pennsylvania.” In July 2012, six months after Furt ek & Associates entered into the contract with Renew, Fur tek traveled to Texas to attend the 2012 National Association for Home Care & Hospice meeting and exhibition. While in Texas ,4

Furtek visited Renew’s office in Fort Worth to meet wi th Misty Chaney

- Brady ( Chaney

- Brady) , Renew’s president

. During this meeti ng, Furtek met with Renew ’s employees, tour ed the office, and disc ussed busine ss with Chaney

Brady. Furtek also went out to di nner that evening with Chaney

- Brady and her husband. Furtek billed Renew six and a half hours for his time that day. He did
not bill Renew for his travel expenses to Fort Worth because his primary reason for being in Texas was to attend the unrelated meeting and exhibition. The following month , Furtek & Associates and Renew entered into an amendment to their contract whereby Fur tek & Associates agreed to expand its
engage ment to include assisting Renew wit h improving Renew’s insurance billing and collection process es , ca sh applications, and foll o w - up procedures for old, unpaid claims. A n independent contractor for Furtek & A ssoc iates , Belinda Yan chik (Yanchik) , was designated to lead this project. Yanchik traveled to Renew’s Fort Worth office on three separate occasions between August and October 2012 to wo r k on the p roject

. Furtek & Associates separately billed Renew for Yanch ik ’s sixteen days of work in Fort Worth

. O n November 5, 2012, Appell ee Maxus Healthcare Partners, LLC (Maxus) , a D allas company , sent Renew a letter of intent to acquire the
company

. As anticipated in the original contract between Furtek & As s ociates

an d Renew, Fu rtek proceeded to assist Chaney

- Brady with setting up a n external due diligence we bsite where Maxus could review relevant financial documents and decide whether to proceed with its proposed acquisition

. On December 31,5

2012, Renew and Maxus sig ned a n asset
- purchase agreement in which Maxus agreed to purchase Renew’s assets. Beginning in September 2012, Furtek and Chaney

- Brady exchanged numerous emails in which they communicated about financial documents and, later, details of the sale to Maxus

. Many of t he e mails contained financial documents tha t Furtek drafted outside of Texas or documents that Furtek reviewed to give Chaney

- Brady feedback. Fur tek and Chaney

- Brady spoke on the telephone a total of nine times in November and December 2012. Furtek also participated in several telephone calls and exchanged e mails with Maxus’s president , Angie King (King ) , dur ing November and December 2012. At the time of all of the calls and e mails, Furtek was located either in Pennsylvania or somewhere outsi de of Texas while Chaney

- Brady and King were located in Texas. Furtek pr epared all of the financial d ocuments for Renew while he was either in Pennsylvania or somewhere outside of Texas. After the sale was complete , Maxus discovered that there was an

o utstanding tax lien of almost $3 million against Renew

. Maxus filed suit against Renew, Furtek & Associates, Furtek, and others, 2 alleging that Renew , Furtek & Associates , and Furtek never disclosed the existence of this lien to it and that , as a result, it overpaid for R enew. Maxus also contended that Renew , Furtek & Associates , and Furtek misrepresented, concealed , and conspired to give Maxus

2 The other named defendants and Maxus’s claims against them are not at iss ue in this appeal.6

misinformation about the true state of Renew’s fi nancial status

. Furtek & Associates and Furtek filed a special appearance, arguing that the trial court did not have personal jurisdiction over them. Following a nonevidentiary hearing, the trial court denied Furtek & Asso ciates and F urtek’s special appear ance

. F urtek & Associates and Furtek appeal from the trial court’s denial. II . DIS CUSSION A. S TANDARD OF R EVIEW The standard of r e view and the burden of proof for a trial court ’ s ruling on a special appearance are well

- settled

. We determine whether a trial court has personal jurisdiction over a defendant under a de novo standard. BMC Software Belgium, L.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002) ; Fish v. Tandy Corp. , 9 48 S.W.2d 886, 891

– 92 (Tex. App.

— Fort W orth 1997, writ denied)

. The plaintiff has the init ial burden to plead sufficient allegations to bring a nonresident defendant within the provisions of the Texas long

- arm statute. Kelly v. Gen

. Interior Constr., Inc. , 301 S.W.3d 653, 658 (Tex. 2010) ; Retamco Operating, Inc. v. Republic Drilling Co. , 278 S.W.3d 333, 337 (Tex. 2009)

. Once the pl aintiff sufficiently pleads these jurisdictional allegations, the burden then shifts to the defendant to negate all of the alleged bases of personal jurisdiction

. Kelly , 301 S.W.3d at 658 ; Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 574 (Tex. 2007). If , as here, the trial court does not make any findings of fact and conclusions of law when ruling on a special appearance, all facts necessary to7

support the judgment are implied when supported by the evidence

. BMC Software , 83 S.W.3d at 795

.

B. D UE P ROCESS U NDER THE F OURTEENTH A MENDMENT Texas courts can asser t personal jurisdiction over a nonresident defendant if the state’s long

- arm statute authorizes it and the exercise of jurisdiction complies with federal constitutional due

- process requirements. Mon crief Oil Int’l Inc. v. OAO Gazprom , 414 S.W.3d 142, 149 (Tex. 2013). The Texas long

- arm statute permits Texas courts to exercise personal jurisdiction over a nonresident defendant doing business in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (West 2015). A nonresident does business in this state if the nonresident ( 1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state , ( 2) commits a tort in whole or in part in this state , or ( 3) recruits Texas residents, directly or through a n intermediary located in this state, for employment inside or outside this state. Id. Federal due process is satisfied if the nonresident defendant has “minimum contacts” with Texas and the exercise of personal jurisdiction over the nonresident defendan t does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington , 326 U.S. 310, 316 , 66 S. Ct. 154, 158 (1945). A defendant’s contacts may give rise to two types of personal jurisdiction: specific and general jur isdiction. When specific jurisdiction is asserted, we focus on the relationship between the defendant, the forum, and the litigation.8

Moki Mac , 221 S.W.3d at 576. In short, the asserted cause of action must “arise from or relate to” the nonresident defe ndant’s contacts with the forum. Guardian Royal Exch. Assurance , Ltd. v. English China Clays , P.L.C. , 815 S.W.2d 223, 228 (Tex. 1991). G eneral jurisdiction, however, is a more demanding test to meet than specific jurisdiction. General jurisdiction requi res that the nonresident defendant ’s contacts with the state be “ continuous and systematic general business contacts. ” Helicopteros Nacionales de Colom., S.A. v. Hall , 466 U.S. 408, 41 5

– 16, 104 S. Ct. 1868, 1872

– 73 (1984)

. If minimum contacts are present , whether general or specific, the nonresident defendant then bears the burden to establish that the exercise of personal jurisdiction would offend traditional notions of fair play and substantial justice. Prof’l Ass’n of Golf Officials v. Phillips Campbe ll & Phillips, L.L.P. , No. 02

- 12

- 00426

- CV, 2013 WL 6869862, at *5 (Tex. App.

— Fort Worth Dec. 27, 2013, pet. denied) (mem. op.)

. On appeal, Furtek & Associates an d Furtek contend that a Texas trial court does not have either general or specific personal j urisdiction over them. We therefore address both general and specific personal jurisdiction

. III. APPLICATION A. S UFFICIENCY OF P LEADING TO I NVOKE L ONG - A RM S TATUE We first determine whether Maxus met its initial burden of plead ing sufficient allegation s to bring Furtek & Associates and Furtek within the provisions of the Texas long

- arm statute, without reaching the merits of those allegations. See Hoffman v. Dandurand , 143 S.W.3d 555, 559 (Tex. App.

—9

D allas 2004, no pet.)

. M axus m ust have plead ed sufficient allegations to support its contention s th at Furtek & Associates and Furtek “ contract [ ed ] by mail or otherwise with a Texas resident and either party is to perform th e contract in whole or in part ” in Texas or “ commit[ed] a tort in whole or in part” in Texas

. Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1 ) , (2)

. 3 Maxus pleaded sufficient allegations to bring Furtek & Associates and Furtek within our long

- arm statute

. I n its live pleading , Maxus alleg ed that Furtek & Associates is “ a Pennsylvania limited liability company doing business in and purposely directing its business activities to Texas. ” It similarly pleaded that Furtek “ is an individual residing in Pe nnsylvan ia

. . . [w ho] does business in and purposely directs his business activities to Texas. ” Maxus also alleged that Furtek & Associates and Furtek “knowingly and intentionally entered [into] a contract” with Renew , that Furtek traveled to Texas to meet with Chaney

- Brady to prepare Renew’s financials for the eventual sale to Maxus , and that Furtek & Associates sent other personnel to Texas to work on

- site to provide additional financial services to Renew. B
. D UE - P ROCESS A NALYSIS Because Maxus sufficiently p leaded allegations to bring Furtek & Associates and Furtek within the provisions of the Texas long

- arm statute, the

3 The evidence is undisputed that Furtek & Asso ciates and Furtek did not recruit Texas residents for employment inside or outside Texas. See id. § 17.042(3).10

burden then shifted to them to negate all pleaded jurisdictional bases and prove a violation of their due

- process rights. See Retamco , 278 S.W.3d at 337

. 1. Specific Jurisdiction Furtek & Associates and Furtek argue that exercising specific jurisdiction over them would violate due process because (1) there is no evidence in the record of sufficient con tacts between them and Texas and (2) any exercise of jurisdiction would offend traditional notions of fair play and substantial justice. When a plaintiff asserts that a court has spe cific jurisdiction over a nonresident defendant , the minimum

- contacts ana lysis focuses on the relationship between the defendant, the forum, and the litigation. G uardian Royal , 815 S.W.2d at 228

. Minimum contacts are sufficient when a nonresident defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla , 357 U.S. 235, 253, 78 S. Ct. 1228, 1240 ( 1958)

. In determining what actions constitute purposeful availment, we consider (1) the defendant’ s own actions a nd not the unilateral activity of another party, (2) whether the defendant ’ s actions were purposeful rather than “random, isolated, or fortuitous,” and (3) whether the defendant sought “some benefit, advantage, or profit by ‘ availing ’ itself of the jurisdi ction

. ” Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 774, 104 S. Ct. 1473, 1478 (1984); Michiana Easy Livin’ Country, Inc. v. Holten , 168 S.W.3d 777, 785 ( Tex. 2005)

. The nonresident defendant’ s contacts are considered as a whole , and we focus on the quality , not the quantity , of the se contacts.11

Retamco , 278 S.W.3d at 339 ; Guardian Royal , 815 S.W.2d at 230 n. 11

. A choice

- of

- law clause, such as the one contained in the contract between Furtek & Associates and Renew, is one factor to consider in determinin g whether the forum court has personal jurisdiction over the nonresident defendant. Burger King Corp. v. Rudzewicz , 471 U.S. 462, 482 , 105 S. Ct. 2174, 2187 ( 1985 ); Michiana , 168 S.W.3d at 792; 2007 E

. Meadows, L.P. v. RCM Phoenix Partners, L.L.C. , 310 S. W.3d 199, 208 (Tex. App.

— Dallas 2010, pet. denied); Citrin Holdings, LLC v. Minnis , 305 S.W.3d 269, 282 (Tex. App.

— Houston [14th Dist.] 2009, no pet.); Exchequer F in. Group, Inc. v. Stratum Dev ., Inc. , 239 S.W.3d 899 , 908 (Tex. App.

— Dallas 2007, no pet.)

. (a) Minimum c ontacts In its brief, Max us argue s that the follo wing contacts , taken together, establish ed specific jurisdiction over Furtek & Associates and Furtek in Texas:

 Furtek & Associates contracted with Renew, a Texas company, to provide profe ssion al accounting services;

 Furtek knew tha t Renew was a Texas company;

 Renew wired a $10,000 retainer to Furtek using its Texas bank account;

 Furtek had numerous telephone calls and e mails with Renew’s pres ident who was located in Fort Worth;

 Furtek t raveled to Fort Worth to meet with Chaney

- Brady on July 17, 2012;12

 Furtek & Associates sent an independent contractor to work with Re new employees on t hree separate occasions in the fall of 2012;

 Furtek knew that Maxus would rely on the financial docume nts that Furtek organized and prepared when deciding whether t o acquire Renew;

 Furtek actively participated in assisting Chaney

- Brady with the sale to Maxus by providing feedback on proposals, providing financial information , and uploading it onto a due diligence website that Maxus relied on ; and

 Furtek communicated directly with King, Maxus’s president, by e mail and telephone

. Furtek & Associates and Furtek contend, on the other hand, that these actions do not rise to the level of the sufficient mini mum contacts that are constitutionally required for assertion of personal jurisdiction over them. Texas courts have consistent ly held that telephone calls, e mails, and mail between a nonresident defendant and a Texas resident are insufficient minimum

co ntacts to establish specific jurisdiction. T hese communications a re in suf ficient to confer specific jurisdiction over nonresident defendants who use phones, computers or mail to do business with T exas residents

. E.g ., Bryan v. Gordon , 384 S.W.3d 908, 916

– 17 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) ( making multiple telephone calls and sendi ng emails to Texas resident held insufficient for assertion of specific jurisdiction) ; Ahrens & DeAngeli, P.L.L.C. v. Flinn , 318 S.W.3d 474, 484 (Tex. App.

— Dallas 2010, pet. denied ) (“ [ t ] elephone13

calls and correspondence as activities directed at the forum are generally insufficient” to establish minimum contacts ); 200 7 E

. Meadows , 310 S.W.3d at 205 (sending due

- diligence documents and monthly rent rolls to Texas he ld insufficient minimum contacts)

. The rationale underlying these cases is that jurisdiction should not be determined by the fortuitous location of the Texas resident when the nonresident defendant communicate s with them. Bryan , 384 S.W.3d at 917; see als o Michiana , 168 S.W.3d at 791 (“[C] hanges in technology have made reliance on phone calls obsolete as proof of purposeful availmen t

. ”). W e also do not believe that Furtek’s visit to Texas t o attend an unrelated meeting an exhibition constitute d “purpose ful availment” of the privileges of conducting business in Texas. The evidence i s undisputed that Furtek met with Cha n ey - Brady only because he happened to be in the area for the conference

. Furtek did not purposefully travel to Texas solely to visit with Chaney

- Brady or to perform work that could only be done on

- site. Nor did Furtek bill Renew for his travel expenses to Texas because they would have been incurred regardless of whether he met with Chaney

- Brady

. This visit was the type of “ fortuitous ” con tact with the forum that is not purposeful availment

. See Michiana , 168 S.W.3d at 785

. With respect to Yanchik’s three trips to Texas, the evidence shows that they were f or services unrelated to the sale of Renew to Maxus. Yanchik trained Renew employees on

- site to improve the company’s collection procedures ; s he14

was not involved with preparing financial documents for the eventual sale to Maxus. While her contact s with T exas may be analyzed in a general

- jurisdiction analysis, they are irrelevant to our specific

- jurisdiction inquiry because the contacts are unrelated to the cause of action. See Burger King , 471 U.S. at 472 , 105 S. Ct. at 2182 ( stating litigation must “ res ult [] from alleged injuries that ‘arise out of or relate to’” contacts with the forum f or assertion of specific jurisdi ction ); Moki Mac , 221 S.W.3d at 576 (“Specific jurisdiction is established if the defendant’s alleged liability ‘aris[es] out of or [is] related to’ an activity conducted with in the forum

. ” (quoting Guardian Royal , 815 S.W.2d at 228) )

. Maxus’s remaining alleged contacts w ill not support an assertion of specific jurisdiction over Furtek & Associates or Furtek b y Texas courts. The fact tha t Renew sent Furtek & Associates a check drawn on a Texas bank account is an isolated and random contact that does not show Furtek & Associates purposefully directed an activity to Texas to avail itself of the forum

. See Myers v. Emery

, 697 S.W.2d 26, 32 (Tex. App.

— Dallas 1985, no writ)

. That Furtek & Associates contracted with a Texas company is also insufficient to establish purposeful availment. See Burger King , 4 71 U.S. at 478, 105 S. Ct. at 2185 ; Lisitsa v. Flit , 419 S.W.3d 672, 680 (Tex. App.

— Houst on [14th Dist.] 2013, pet. denied) ; Olympia Capital Assoc s ., L.P. v. Jackson , 247 S.W.3d 399, 417 (Tex. App.

— Dallas 2008, no pet.)

. “Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, no t based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with15

other persons affiliated with the State.” Walden v. Fiore , 134 S. Ct. 1115, 112 3 (2014) (quoting Burger King , 471 U.S. at 475 , 105 S. Ct. at 2183 ) )

. Finally, the cho ice

- of

- law clause in the cont r act at issue supports our conclusion that Furtek & Associates and Furtek did not intend to avail themselves of the privileges of doing business in Texas and believed that a ny dispute over the contract would be resolved under P ennsylvania law

. (b) Cases r elied on by Maxus Maxus contends that this case is anal o gous to a prior decision of this court and to a Beaumont Court of Appeals case : Carlile Bancshares, Inc. v. Armstrong , Nos. 02

- 14

- 00014

- CV , 02

- 14

- 00018

- CV, 2014 WL 38916 58 (Tex. App.

— Fort Worth Aug. 7, 2014, no pet.) (mem. op. ) and Deloitte & Touche Netherlands Antilles & Aruba v. Ulrich , 172 S.W.3d 255 (Tex. App.

— Beaumont 2005, pet. denied)

. In Carlile , we held that two Colorado residents had sufficient minimum contacts with Texas for a Texas court to asse r t specific jurisdiction over them

. 2014 WL 3891658, at *13

– 16. Maxus argues this case is factually indistinguishable, pointing to evidence in Ca rli le that the Colorado residents (1) agreed to seek out the buyer in Te xas, (2) compil ed financial information for use by the Texas buyer, and (3) directed e mails to the Texas buyer

. Id. at * 1 3. We find Carli

l e distinguishable for t wo reasons. First, the nonresidents in that

case specifically agreed to seek out Carlile in Texas regarding a potential acquisition. Id. This action of the nonresident defendants themselves was purposeful and was clear evidence that they sought a benefit or advantage by16

availing themselves of Texas ’s jurisdiction

. Id. In this case , a third

- pa rty broker located in Florida initiated the contact between Furtek and Chaney

- Brady ; Furtek never sought out Renew’s bu siness by contacting it directly

. The fact that a third

party b roker brings the parties together to conduct business is a factor that sh ould be consider ed in a specific

- jurisdiction analysis because it is evidence that the nonresident defendant did not intend to pu rposefully avail it self of the privilege of conducting a ctivities within the forum s tate , thereby invoking the benefits and pro tections of its laws

. See 2007 E. Meadows , 310 S.W.3d at 205; Olympia Capital , 247 S.W.3d at 416; 3

- D Elec. Co., Inc. v. Barnett Constr. Co. , 706 S.W.2d 135, 142 (Tex. App.

— Dallas 1986, writ ref’d n.r.e.)

. Second, one nonresident in Carli

le traveled to T exas twice to meet with the buyer to discuss the specific s of the merger that they were negotiating

. Carlile , 2014 WL 3891658 , at *13. These contacts were direct and significant contacts with the forum to finalize the merger agreement. By deliberately a nd purposefully engaging in these activities in Texas, the Colorado residents in Carlile submitted themselves to th e jurisdiction of Texas courts. Id. at *14; s ee Michiana , 168 S.W.3d at 784. Here, Furtek & Associates and Furtek did not create a substant ial connection by personally conducting negotiations or preparing or producing document s in Texas. Although physical presence in the state is not required to meet the requirements of specific jurisdiction, it can “enhance a potential defendant’s affiliati on with a State and reinforce the reasonable foreseeability of suit there.” Burger King , 471 U.S. at 476 , 105 S. Ct. at 2184

.17

Similarly, we find Deloitte & Touche inapposite. In that case , auditors from Deloitte & Touche , an accounting firm organized under the law s of the Netherlands Antilles, travel ed from the Netherlands to Texas to do substantial portions of their audit on a Texas bank. Deloitte & Touche , 172 S.W.3d at 263. When Deloitte & Touch e entered into the contract with the Texas bank, it k new most of its audit work would be performed in Texas and that its auditors would spend a signif icant amount of time in Texas. Id. Thus, it was foreseeable to Deloitte & Touche that it could be haled into a Texas court for actions it took in Texas. Id

. There is no such extended physical presence in Texas in the case before us; rather, it involves a fortuitous visit by Furtek and three visits by Yanchik for unrelated work. Additionally, the court in Deloitte & Touche noted that the re was evidence a sig nificant portion of the business operations of both the Texas bank and Deloitt e & Touche was located in Texas. Id. Neither Furtek & Associates nor Furtek have any operations in Texas. In support of its position, Maxus also relies on a line of Texas case s holding that specific jurisdiction exists i f the nonresident defendant can forsee that his actions will cause a direct injury to a Texas resident residing in Texas. See , e.g. , Weber Co., Inc. v. Back

- Haul Bulk Carriers, Inc ., No. 14

- 02

- 00240

- CV, 2002 WL 31769418, at *3 (Tex. App.

— Houston [14th Dist.] Dec

. 12, 2002, no pet.) (not designated for publication) ; Cartlidge v. Hernandez , 9 S.W.3 d 341, 348 (Tex. App.

— Hous to n [14th Dist.] 1999 , no pet.)

. M axus contends that because Furtek & Associates and Furtek could forsee that Maxus would be18

injured in Texas when relying on the fi nancial information, it is fair to subject them to the jurisdiction of Texas courts. We disagree . First, specific jurisdiction focuses on the relationship between the nonresident defendant and the forum state, not on the relationship between the nonresident defendant and the plaintiff. Walden , 134 S. Ct. at 1122. The proper analysis focuses on the contacts the nonresident defendant himself creates with the forum state, not the pl aintiff’s actions that connect the nonresident defendant to the forum. Id

. Second, the lin e of cases relied upon by Maxus w ere decided b efore the supre me court’s decision in Michiana wh ere the court specifically rejected the argument that Texas has specific jurisdiction if the nonresident defendant “ directed a tort ” at a Texas resident. 1 68 S.W.3d at 788

– 90

. The court stated that the directed

- a - tort analysis was unworka ble because it incorrectly focused on the plaintiff and requ ires the court to analyze the me rits of the claim at the special

- appearance hearing. Id. at 790

– 91. We hold that the record does not contain sufficient evidence of the minimum contacts necessa ry to conclude that Furtek & Associates and Furtek purposefully availed themselves of the privilege of conducting business within Texas , thus invoking the benefits and protections of Texas law ; thus, Furtek & Associates and Furtek met their burden to negat e s pecific jurisdiction

. Hanson , 357 U.S. at 253 , 78 S. Ct. at 1240 . We sustain Furtek & Associates and Furtek’s first issue.19 2. General Juris diction In their second issue, Furtek & Associates and Furtek con tend that Texas
courts cannot assert genera l jurisdiction over them because the contacts they had with Texas were not continuous and systematic

. Between 2010 and 2015, Furtek traveled to Texas three additional times apart from attending the 2012 meeting and exhibition

. We agree with Furtek & Asso ciates and Furtek that these a dditional trips, in combination with the other contacts discussed above, are insufficient to establish the type of continuous and systematic business contacts required by the Fourteenth Amendment. Gener al jurisdiction can be exercised over a nonresident defendant even though a plaintiff’s cause of action does not arise out of the nonresident defendant ’s contacts with the forum if those contacts are “continuous and systematic general business contacts ” that make it fair to ass ert jurisdiction over the defendant

. Helicopteros , 466 U.S. at 41 5

– 16 , 104 S. Ct. at 1872

– 73 ; Am. Type Culture Collection v. Coleman , 83 S.W.3d 801, 80 6

– 07 (Tex. 2002) , cert. denied

, 537 U.S. 1191 (2003)

. This is a more demanding minimum

contacts ana l ysi s than that performed for specific jurisdiction. Am

. Type Culture , 83 S.W.3d at 807

. T he record reveals that since 2010, Furtek traveled to Texas four times . In 2010 and 2012 , Furte k traveled to the Dallas/Fort Worth Metroplex to attend the annual Nat ional Association for Home Care & Hospice meeting an exhibition . On20

two other occasions, Furtek traveled to Texas to attend business meetings on behalf of non

- Texas clients. Furtek & Associates and Furtek’s contacts with Texas are insufficient to satis fy the requirements of the Due Process Clause of the Fourteenth Amendment. Two meetings with non

- Texas clients and attendance at two exhibitions in Texas are not the type of general business contacts that are continuous and systematic in nature

. See Am

. Type Culture , 83 S.W.3d at 809 ( stating “ attendance at the five Texas conferences does not support the exercise of general jurisdiction ” over nonresident defendant). The fortuitous business meeting in Texas with Chaney

- Brady is also insufficient to consti tute a continuous and systematic contact. S ee Helicopteros , 466 U.S. at 416

– 18, 104 S. Ct. at 1873

– 74 ( concluding “one trip” to forum state by nonresident defendant’s CEO to negotiate contract, nonresident’s acceptance of checks drawn on Texas bank, and n onresident’s “mere purchases, even if occurring at regular intervals,” we re not continuous or systematic contacts for purposes of general jurisdiction). The same legal analysis applies to Yanchik’s three visits to Texas to train Renew employees on billin g and collection procedures. As an independent contractor, Yanchik’s travel to Texas did not enhance the nature of Fur te k & Associates and Furtek’s cont acts with Texas. In Helicopteros , a South American company sent prospective pilots to Fort Worth for o n - site training and to fly helicopters back to South America. 466 U.S. at 411, 104 S. Ct. at 1870. The21

company also sent management and maintenance personnel to Fort Worth for technical consultation and for “plant familiarization.” Id. The Supreme Cour t found t hese contacts to be fortuitous in nature, not the general , continuous , and systematic business contacts with the forum state required for the assertion of general jurisdiction. Id. a t 418 , 104 S. Ct. at 1874

. In accordance with this reasoning, Y anchik’s cont act s would not warrant haling Furtek & Associates and Furtek into a Texas court. We hold t hat this evidence does not establish the continuous and systematic business contacts between Furtek & Associates and Furtek and Texas. Thus, Furtek & A ssociates and Furtek met their burden to negate general jurisdiction. We sustain Furtek & Associates and Furtek’s second issue. Having sustained both Furtek & Associates and Furtek’s first and second issues, we need not reach the question of whether asse rtion of personal jurisdiction over these nonresidents would offend traditional notions of fair play and substantial justice. See T ex . R. App. P. 47.1; Prof’l Ass’n of Golf Officials , 2013 WL 6869862, at *8

. IV
. CO NCLUSION We do not find evidence in th e record to support the tr ial court’s conclusion that Furtek & Associates and Furtek had sufficient c ontacts with Texas to establish a basis for asserting either specific or general jurisdiction over them

. Without such evidence, it was error to deny their special appearance

. We therefore reverse the tria l court’s order denying Furtek & Associates and Furtek’s22

special appearance and render judgment dismissing Maxus’s claims against them for want of personal jurisdiction. See Tex. R. App. P. 43.2( c ) , 43.3

.
/s/ L ee Gabriel LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ. SUDDERTH, J., dissenting without opinion DELIVERED: April 21, 2016