A.C.S. Wright v. Sage Engineering, Inc., John S. Templeton, III, and Ronald L. Boggess

Opinion issued April 8, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01018-CV

A.C.S. WRIGHT, Appellant

V.

SAGE ENGINEERING, INC., JOHN S. TEMPLETON, III,

AND RONALD L. BOGGESS, Appellee s

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2002-48735

O P I N I O N

A.C.S. Wright (“Wright”) appeals the denial of his special appearance

in a suit

brought against him by appellees Sage Engineering, Inc., John S. Templeton, III, and

Ronald L. Boggess. In addressing Wright’s three issues raised on appeal, we

determine (1) whether Wright properly asserted in the trial court his complaint that

appellees failed to serve him in accordance with the Hague Convention, (2) whether

Wright had the requisite minimum contacts with Texas for the trial court to exercise

personal jurisdiction over him, and (3) whether the exercise of personal jurisdiction

over Wright comports with traditional notions of fair play and substantial justice.

We affirm.

Factual and Procedural Background

Wright is a citizen and resident of Switzerland. Sage Engineering, Inc. (“SEI”)

is a Texas corporation formed in 1995 with its principal place of business in Houston.

SEI designs, manufactures, and sells miniature penetrometer testing equipment used

in offshore oilfield production. The founding shareholders of SEI were John S.

Templeton, III, (“Templeton”), Ronald L. Boggess (“Boggess”), and Sage Holding

AG (“Sage Holding”).

Wright is the sole director of Sage Holding. In November 2000, Wright signed

an agreement for the sale of Sage Holding to Thales, Inc. Thales eventually merged

Sage Holding into Thales Geosolutions, Inc. SEI, Templeton, and Boggess

(collectively referred to as “appellees”) sued Wright, Sage Holding, and several

Thales entities.

Appellees allege that the defendants stole their design technology

related to the miniature penetrometer testing equipment. The claims asserted by

appellees included misappropriation of trade secrets, breach of fiduciary duty, unjust

enrichment, breach of contract, conversion, conspiracy, fraud, and fraudulent

inducement.

In their original petition, appellees made the following factual allegations:

• Boggess and Templeton provided SEI with their design technology for

miniature penetrometer testing equipment.

• The design technology is the trade secrets and confidential information

of the appellees.

• SEI was “the exclusive provider of the miniature penetrometer testing

equipment to Sage Holding” and Sage Holding’s corporate affiliates.

• Sage Geodia, a corporate affiliate of Sage Holding, purchased

equipment and parts from SEI. Rather, than using this equipment to

service their clients, Sage Geodia and “other affiliates” “reverse

engineered” and duplicated the equipment and technology.

• Wright negotiated the purchase of Sage Holding by Thales. Under the

terms of this agreement, Sage Holding agreed to provide Thales with

“the technology, trade secrets, confidential information and other

property and rights” of appellees.

• The Sage parties and Thales agreed to keep the negotiations secret from

SEI and to exclude SEI from the corporate acquisition.

• Thales purchased Sage Holding in November 2000. At that time, Thales

“folded” Sage Holding and SEI’s misappropriated technology into

Thales Geosolutions, which then used SEI’s technology, i.e., trade

secrets, to market and sell miniature penetrometer testing equipment.

Wright filed a special appearance asserting that he was not amenable to process

issued by a Texas court. Wright argued that the trial court lacked personal

jurisdiction over him because (1) appellees’ failed to serve him through the Hague

Convention; (2) Wright lacked the requisite minimum contacts with Texas to satisfy

the requirements of due process; and (3) the trial court’s exercise of personal

jurisdiction over him does not comport with traditional notions of fair play and

substantial justice. The trial court denied Wright’s special appearance. This

interlocutory appeal followed.

Defective Service of Process

In his first issue, Wright contends that the trial court should have granted his

special appearance on the basis that appellees failed to serve him with process in

compliance with the Hague Convention. Appellees counter that Wright’s special

appearance was properly denied on this basis because, if he thought that service was

defective, Wright should have raised that complaint in a motion to quash, not in a

special appearance.

A special appearance is a specific procedural mechanism to litigate one issue :

that is, a special appearance is “for the purpose of objecting to the jurisdiction of the

court over the person or property of the defendant on the ground that such party or

property is not amenable to process issued by the courts of this State.” Tex. R. Civ.

P. 120a; see also Tex. Commerce Bank N.A. v. Interpol 1980 Ltd. P’ship , 703 S.W.2d

765, 775 (Tex. App.—Corpus Christi 1985, no writ). The rule applies only when a

defendant contends he is not amenable to process. See Kawasaki Steel Corp. v.

Middleton , 699 S.W.2d 199, 201-02 (Tex. 1985); Oliver v. Boutwell , 601 S.W.2d 393,

395 (Tex. Civ. App.—Dallas 1980, no writ). The words “not amenable to process

issued by the courts of this state” mean that the special appearance is available solely

to establish that the Texas court cannot, under the federal and state constitutions and

the appropriate state statutes, validly obtain jurisdiction over the person or the

property of the defendant. Kawasaki , 699 S.W.2d at 202 .

Our supreme court held in Kawasaki that defective service of process must be

challenged by a motion to quash rather than by a special appearance. Id . This is

because a curable defect in service of process does not defeat a nonresident’s

amenability to the court’s process and serves only to provide the non-resident

defendant with more time to answer. See id. at 202 ; see also Tex. R. Civ. P. 122 .

Wright acknowledges the holding in Kawasaki but argues that it has been

called into question by the Unites States Supreme Court’s decision in Murphy Bros.

v. Michetti Pipe Stringing , 526 U.S. 344, 346 , 119 S. Ct. 1322, 1325 (1999). In

Murphy Bros. , the court held that mere receipt of a complaint unattended by any

formal service did not trigger a defendant’s time to remove a case from state court.

Murphy Bros. , 526 U.S. at 347-48 , 119 S. Ct. at 1325 . Wright cites Murphy Bros. for

the proposition that “[a]n individual or entity named as a defendant is not obliged to

engage in litigation unless notified of the action, and brought under a court’s

authority by formal process.” Murphy Bros. , 526 U.S. at 347-48 , 119 S. Ct. at 1325 .

Wright contends that requiring him to raise his complaint regarding defective service

in a motion to quash, rather than in a special appearance, violates this principle

because it requires him to make an appearance in a suit for which he has not been

properly served and forces him to waive his complaint that he is not amenable to

process issued by a Texas court.

As an intermediate court of appeals, we must follow our state supreme court’s

expressions of the law and leave changes in the law to that court. See Lubbock

County v. Trammel’s Lubbock Bail Bonds , 80 S.W.3d 580, 585 (Tex. 2002) (“It is not

the function of a court of appeals to abrogate or modify established precedent. That

function lies solely with [the Supreme] Court.”); Lofton v. Texas Brine Corp ., 777

S.W.2d 384, 386 (Tex. 1989) (“This court need not defend its opinions from criticism

from courts of appeals; rather they must follow this court’s pronouncements.”).

Absent a clear expression that a decision of our supreme court has been overruled, we

are bound by its decisions. See Trammel’s Lubbock Bail Bonds , 80 S.W.3d at 585 ;

Lofton , 777 S.W.2d at 386 . Murphy Bros. does not contain such a clear expression

with regard to our supreme court’s decision in Kawasaki . We also note that, since the

issuance of the decision in Murphy Bros. , the Texas Supreme Court has cited

Kawasaki for the proposition that a motion to quash is the appropriate device to

object to procedural error in service. See Baker v. Monsanto , 111 S.W.3d 158, 161

(Tex. 2003). Thus, we leave to our state supreme court—or the United States

Supreme Court—the determination of whether the decision in Kawasaki is in conflict

with the decision in Murphy Bros. Until that time, we are bound by Kawasaki.

Applying the principles enunciated in Kawasaki to the present case, we

conclude that it was not appropriate for Wright to assert his complaint regarding

defective service of process in his special appearance. A complaint regarding a

curable defect in service of process, such as the one raised by Wright, does not defeat

a nonresident’s amenability to the court’s process; thus, it should not be brought via

a special appearance.

See Kawasaki , 699 S.W.2d at 202 ; see also Tex. R. Civ. P.

120a. Rather, a motion to quash is the appropriate procedural device to raise such

objection. See Wheat v. Toone , 700 S.W.2d 915, 915 (Tex. 1985); Tex. Dept. of Pub.

Safety v. Kreipe , 29 S.W.3d 334, 336 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied). The remedy for defective service in Texas state court is additional time to

answer the suit, not dismissal.

See Kawasaki , 699 S.W.2d at 202-03 ; Alcala v.

Williams , 908 S.W.2d 54, 56 (Tex. App.—San Antonio 1995, no writ); see also Tex.

R. Civ. P. 122. Accordingly, we hold that the trial court did not err in failing to grant

Wright’s special appearance on the basis that appellees did not serve him with

process in accordance with the Hague Convention.

We overrule Wright’s first issue.

Amenability to Service of Process

In his second issue, Wright contends that the trial court erred in denying his

special appearance because he does not have sufficient minimum contacts with this

forum for a Texas court to exercise personal jurisdiction over him.

General Principles of Personal Jurisdiction

Due process considerations

Two conditions must be met for a Texas court to exercise personal jurisdiction

over a nonresident defendant such as Wright: the Texas long-arm statute must

authorize the exercise of jurisdiction, and the exercise of jurisdiction must be

consistent with the guarantees of due process. Software Belgium, N.V. v. Marchand ,

83 S.W.3d 789, 795 (Tex. 2002); Schlobohm v. Schapiro , 784 S.W.2d 355, 356 (Tex.

1990). The long-arm statute provides for the assertion of jurisdiction over any

nonresident “doing business” in Texas, which by statutory definition includes those

defendants who commit torts in whole or in part in this state. Tex. Civ. Prac. &

Rem. Code Ann . § 17.042(2) (Vernon 1997). Because the language of the long-arm

statute is broad, its requirements are considered satisfied if the exercise of personal

jurisdiction comports with federal due process limitations. CSR Ltd. v. Link , 925

S.W.2d 591, 594 (Tex. 1996). Thus, in practice, the two conditions are conflated into

one requirement of due process. City of Riverview, Michigan v. Am. Factors, Inc ., 77

S.W.3d 855, 857 (Tex. App.—Dallas 2002, no pet.).

The cornerstone of due process in the context of jurisdiction is the minimum

contacts analysis. Id. The goal of this analysis is to protect a defendant from being

unjustifiably called before the courts of a foreign state. Id. To establish minimum

contacts with a state, the defendant “must do something purposeful to avail himself

of the privilege of conducting activities in the forum, thus invoking the benefit and

protection of its laws.” Schlobohm , 784 S.W.2d at 357 ; see also Burger King Corp.

v. Rudzewicz , 471 U.S. 462, 474-76 , 105 S. Ct. 2174, 2183-84 (1985).

A defendant should not be subject to the jurisdiction of a Texas court based

upon random, fortuitous, or attenuated contacts. CSR , 925 S.W.2d at 595 . The

purposeful availment requirement ensures that the nonresident defendant’s contact

must result from its purposeful contact, not the unilateral activity of the plaintiff or

a third party. See Guardian Royal , 815 S.W.2d at 227. It is the quality and nature of

the contacts, rather than their number, that is important. Id. at 230 n. 11. The

exercise of personal jurisdiction is proper when the contacts proximately result from

actions of the nonresident defendant that create a substantial connection with the

forum state. Id . at 226.

Foreseeability

Although not determinative, foreseeability is an important consideration in

deciding whether the nonresident defendant has purposefully established minimum

contacts with the forum state. Id . at 227. Foreseeability is not an independent

component of the minimum contacts analysis but is implicit in the requirement that

there be a “substantial connection” between the nonresident defendant and Texas

arising from the action or conduct of the nonresident defendant purposefully directed

toward Texas. Id. Individuals must have fair warning that a particular activity may

subject them to the jurisdiction of a foreign sovereign. Burger King , 471 U.S. at 472 ,

105 S. Ct. at 2182 ; Guardian Royal , 815 S.W.2d at 226. In other words, an important

inquiry in the jurisdictional analysis is whether “the defendant’s conduct and

connection with the forum State [is] such that he should reasonably anticipate being

haled into court there.” World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286,

297 , 100 S. Ct. 559, 567 (1980).

Specific Jurisdiction

Personal jurisdiction exists if the nonresident defendant’s minimum contacts

give rise to either specific jurisdiction or general jurisdiction. Helicopteros

Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408 , 413-14 & nn.8-9, 104 S. Ct.

1868 , 1872 & nn.8-9 (1984); Guardian Royal , 815 S.W.2d at 227. Specific

jurisdiction is established if the nonresident defendant’s alleged liability arises from

or is related to the defendant’s purposeful contact with the forum. Helicopteros , 466

U.S. 414 & n.8, 104 S. Ct. at 1872 & n.8; Guardian Royal , 815 S.W.2d at 228.

When specific jurisdiction is asserted, the minimum contacts analysis focuses

on the relationship among the defendant, the forum, and the litigation. Guardian

Royal , 815 S.W.2d at 227-28. It is not necessary that a nonresident defendant’s

conduct actually occur in Texas, as long as the defendant’s acts were purposefully

directed toward the state. Calder v. Jones , 465 U.S. 783, 789-90 , 104 S. Ct. 1482,

1487 (1984) ; CSR , 925 S.W.2d at 595 . “[A] defendant should reasonably anticipate

being haled into court where the effects of its conduct have been intentionally caused

through the purposeful direction of activity toward the forum state, even if the

defendant never physically enters the state.” Cole v. The Tobacco Inst ., 47 F. Supp.

2d 812, 815 (E.D. Tex. 1999).

Standard and Scope of Review

Whether a court has personal jurisdiction over a defendant is a question of law,

which we review de novo. Marchand , 83 S.W.3d at 794 . However, the trial court

frequently must resolve questions of fact before deciding the jurisdiction question.

Id . When, as here, the 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. Id . at 795. In cases in which the appellate

record includes both the reporter’s and clerk’s records, these implied findings are not

conclusive and may be challenged for legal and factual sufficiency. Id . In contrast,

we review the trial court’s decision de novo when the underlying facts are undisputed

or otherwise established. AmQuip Corp. v. Cloud , 73 S.W.3d 380, 384 (Tex.

App.—Houston [1st Dist.] 2002, no pet.); Experimental Aircraft Ass’n v. Doctor , 76

S.W.3d 496, 502-03 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

Specific Jurisdiction Based on Torts “Committed in Whole or in Part in Texas”

We begin our review of the trial court’s denial of Wright’s special appearance

by determining whether specific jurisdiction exists over Wright. As plaintiffs,

appellees bore the initial burden to make sufficient allegations to bring Wright within

the personal jurisdiction of the trial court. Marchand , 83 S.W.3d at 793 ; McKanna

v. Edgar , 388 S.W.2d 927, 930 (Tex. 1965). Once appellees met this burden, then

Wright was required to negate all possible grounds for personal jurisdiction.

Marchand , 83 S.W.3d at 793 .

Appellees alleged in their original petition—the live pleading at the time the

trial court decided the special appearance—that Wright committed tortious acts in

Texas. Appellees correctly assert that our long-arm statute allows personal

jurisdiction for any tort “committed in whole or in part in Texas.” Tex. Civ. Prac.

& Rem. Code Ann . § 17.042(2). Due process considerations are also satisfied if a

defendant directs his tortious conduct toward the forum state with the foreseeable

knowledge that his actions will cause harm to a resident of the forum and the

defendant purposefully avails himself of the privilege of conducting activities within

the forum state . See Burger King , 471 U.S. at 474-76 , 105 S. Ct. at 2182 -84 ; Calder ,

465 U.S. at 789-90 , 104 S. Ct. at 1487 .

Appellees also alleged in their original petition that Wright induced Templeton

and Boggess to contribute their trade secrets and “confidential information” to SEI.

Appellees asserted, “Wright misrepresented the terms upon which these assets of

Plaintiffs were contributed to SEI, as evidenced by . . . misappropriating the trade

secrets, confidential information, corporate assets and corporate opportunities of

Plaintiffs Templeton and Boggess.”

Appellees expounded on these allegations in their response to Wright’s special

appearance. In support of their response, appellees submitted the affidavit testimony

of Templeton. Regarding misrepresentations made by Wright in Texas, Templeton’s

affidavit provided as follows:

At the time of the formation of SEI, numerous representations were

made by Wright and Sage Holding that equipment design technology,

that I, along with Ronald Boggess, held at that time would remain the

property of SEI, as would all corporate opportunities arising from the

production and sale of that equipment. Those representations were

made to me and Boggess and supported repeatedly by Wright in a series

of telephone calls to me and SEI in Texas and e-mail correspondence

sent to Texas, all of which occurred at the time of the formation of SEI

in and around December 1995.

We conclude that appellees met their burden of pleading sufficient

jurisdictional allegations to bring Wright within the specific personal jurisdiction of

the trial court.

Fiduciary Shield Doctrine

Because appellees met their initial burden, Wright was required to negate all

possible grounds for personal jurisdiction. Within the context of the special

appearance proceeding, Wright offered no evidence refuting appellees’ claim that he

made the “numerous representations” referenced in Templeton’s affidavit.

Wright

neither disputes that the alleged representations were directed toward Texas nor

denies that appellees’ tort claims arise out of or relate to the representations. Wright

also does not contend that he could not have reasonably foreseen being subject to

jurisdiction in Texas because of such representations. Rather, Wright contends that

he lacks the requisite minimum contacts with Texas because he performed the alleged

tortious acts as a corporate representative of Sage AG, not in his individual capacity.

In this respect, Wright invokes the fiduciary shield doctrine, which protects a

corporate officer or employee from the trial court’s exercise of general personal

jurisdiction when all of the individual’s contacts with Texas were on behalf of his

employer.

SITQ E.U., Inc. v. Reata Rests., Inc ., 111 S.W.3d 638, 650-51 (Tex.

App.—Fort Worth 2003, pet. filed); Brown v. Gen. Brick Sales Co. , 39 S.W.3d 291,

297-98 (Tex. App.—Fort Worth 2001, no pet.). Texas courts applying the fiduciary

shield doctrine have expressly limited its application to attempts to exercise general

jurisdiction over a nonresident defendant. Stern v. KEI Consultants, Ltd. , 123 S.W.3d

482, 488 (Tex. App.—San Antonio 2003, no pet. h.); SITQ , 111 S.W.3d at 651 ;

Brown , 39 S.W.3d at 300 ; cf. Garner v. Furmanite Australia Pty., Ltd. , 966 S.W.2d

798, 803 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (holding that fiduciary

shield doctrine protected Australian resident from trial court’s exercise of general

jurisdiction because his only contacts with Texas were on his employer’s business)

(emphasis added).

The fiduciary shield doctrine does not protect a corporate officer from specific

personal jurisdiction as to intentional torts or fraudulent acts for which he may be

held individually liable. Jackson v. Kinkaid , 122 S.W.3d 440, 448 (Tex.

App.—Corpus Christi 2003, no pet. h. ); SITQ , 111 S.W.3d at 651 ; see also Gen. Elec.

v. Brown & Ross Int’l Distribs., Inc ., 804 S.W.2d 527, 532-33 (Tex. App.—Houston

[1st Dist.] 1990, writ denied) (holding that corporate officers, who had personally

arranged theft of design plans, ordered counterfeit and mislabeled parts, and made

misrepresentations to customers were subject to personal jurisdiction in Texas). It is

well-settled that a corporate agent can be held individually liable for fraudulent

statements or knowing misrepresentations even when they are made in the capacity

of a corporate representative. Shapolsky v. Brewton , 56 S.W.3d 120, 133 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied); see also Miller v. Keyser , 90 S.W.3d

712, 714-18 (Tex. 2002) (holding sales agent may be held individually liable under

DTPA for misrepresentations); Barclay v. Johnson , 686 S.W.2d 334, 336-37 (Tex.

App.—Houston [1st Dist.] 1985, no writ) (holding corporate agent personally liable

for false representations). The causes of action asserted by appellees against Wright

individually, which are based on Wright’s alleged misrepresentations, are claims for

which Wright could be held individually liable. Therefore, the fiduciary shield

doctrine is not available to Wright as a defense to the trial court’s exercise of specific

personal jurisdiction based on his alleged misrepresentations. See D.H. Blair

Investing Banking Corp. v. Reardon , 97 S.W.3d 269, 278 (Tex. App.—Houston [14th

Dist.] 2002, pet. dism’d w.o.j.) (refusing to apply fiduciary shield doctrine to protect

defendant from personal jurisdiction based on alleged misrepresentations that were

directed into Texas and foreseeably relied on in Texas, despite defendant’s claim that

he acted only in corporate capacity ) ; Shapolsky, 56 S.W.3d at 133-34 (same) . We

conclude that, by invoking the fiduciary shield doctrine, Wright has not satisfied his

burden of negating the assertion of personal jurisdiction based on specific

jurisdiction.

Minimum Contacts Analysis

That Wright is alleged to have committed a tort in Texas is not dispositive of

the jurisdictional issue presented here; such allegations alone do not give Texas

courts jurisdiction over a nonresident. Shapolsky , 56 S.W.3d at 133 . Rather, there

must be a substantial connection between the contact and the cause of action in the

forum state.

See id.

Comporting with well-settled law, this and other appellate courts have held that

a misrepresentation made by a nonresident defendant directed toward Texas is

sufficient to assert specific jurisdiction. Michiana Easy Livin’ Country, Inc. v.

Holten , 127 S.W.3d 89, 98-99 (Tex. App.—Houston [1st Dist.] 2003, pet. filed)

(holding that nonresident defendant had sufficient minimum contacts to subject it to

specific personal jurisdiction in Texas in case in which plaintiff alleged that, during

negotiations conducted by telephone, nonresident defendant made misrepresentations

regarding product defendant sold to plaintiff and that these misrepresentations

constituted violations of the DTPA, fraud, breach of warranty, and breach of

contract); Boissiere v. Nova Capital , 106 S.W.3d 897, 904-06 (Tex. App.—Dallas

2003, no pet.) (concluding that allegations asserted in fraud and negligent

misrepresentation case that nonresident defendants made misrepresentations in

telephone calls to Texas resident, who relied on representations in Texas and was

induced to provide defendants with plaintiff’s trade secret information, were

sufficient to support specific jurisdiction in Texas); Shapolsky , 56 S.W.3d at 135

(holding that plaintiff’s allegations that nonresident defendant made intentional

misrepresentations to plaintiff in Texas by phone, fax, and mail to induce plaintiff to

contract with defendant were sufficient to support specific jurisdiction).

Regardless of what the evidence may ultimately show on full trial of this

matter, the uncontroverted allegations and evidence presented within the context of

the special appearance proceeding show the following: (1) Wright made numerous

representations, oral and written, on which Templeton and Boggess relied, ultimately

to their economic detriment ; (2) Wright directed the alleged misrepresentations

toward Texas residents who received and relied on the misrepresentations in Texas;

and (3) Wright’s misrepresentations induced Templeton and Boggess to transfer their

proprietary information to SEI, a corporation formed under the laws of Texas, with

its principal place of business in Houston. By making misrepresentations in Texas

with the ultimate goal of obtaining the trade secrets of Texas residents, Wright

purposefully availed himself of the benefits and protections of Texas law. See

Shapolsky , 56 S.W.3d at 134. When, as here, a defendant intentionally sends false

information into a state, knowing it will be relied on by a resident of the forum state,

there is a foreseeable consequence of direct economic injury to the resident at its

domicile. Id. Thus, it should have been foreseeable to Wright that he might be haled

into a Texas court to defend a lawsuit arising out of the alleged misrepresentations.

See id . Relatedly, a nexus exists between the torts that appellees claim against Wright

and the alleged contacts with Texas; that is, Wright’s alleged misrepresentations give

rise to some of the causes of action appellees assert against him, particularly

appellees’ claims for fraud and fraudulent inducement. See id. (finding nexus

between contacts and allegations that misrepresentations induced plaintiff to enter

into contract with nonresident defendant). Thus, we conclude that Wright’s alleged

misrepresentations constitute sufficient purposeful minimum contacts with Texas to

satisfy due process considerations.

We overrule Wright’s second issue.

Fair Play and Substantial Justice

Having concluded that Wright had sufficient contacts with Texas, we next

consider Wright’s third issue in which he contends that the exercise of jurisdiction

over him offends traditional notions of fair play and substantial justice. See Guardian

Royal , 815 S.W.2d at 231. The following factors, when appropriate, should be

considered in making this assessment: (1) the burden on the defendant, (2) the

interests of the forum state in adjudicating the dispute, (3) the plaintiff’s interest in

obtaining convenient and effective relief, (4) the interstate judicial system’s interest

in obtaining the most efficient resolution of controversies, and (5) the shared interest

of the several states in furthering fundamental substantive social policies. Id. When an international dispute is involved, the following factors, when

appropriate, should also be considered: (1) the unique burdens placed upon the

defendant who must defend itself in a foreign legal system; and (2) the procedural and

substantive policies of other nations whose interests are affected as well as the federal

government’s interest in its foreign relations policies. Id at 229. But only in rare

cases will the exercise of jurisdiction not comport with fair play and substantial

justice when, as here, the nonresident defendant has purposefully established

minimum contacts with the forum . Id . at 231. Thus, the burden is on the defendant

to “‘present a compelling case that the presence of some other considerations would

render jurisdiction unreasonable.’” Id . (quoting Burger King , 471 U.S. at 477 , 105

S. Ct. at 2185 ) (emphasis added).

Wright first asserts that his status as an international defendant is a

determinative factor in the fairness analysis. In support of this contention, Wright

relies on our holding in Minucci v. Sogevalor, S.A. , 14 S.W.3d 790 (Tex.

App.—Houston [1st Dist.] 2000, no pet.). In Minucci , we held that subjecting an

Italian citizen to jurisdiction in Texas did not comport with traditional notions of fair

play and substantial justice. Id. at 799 . In reaching this decision, we reasoned as

follows:

Texas has no interest in adjudicating this dispute. The cause of action

did not occur in Texas; neither party is a resident of this state; Swiss law

governs the dispute, none of the investors were Texas citizens, and the

contract was written in Italian. Thus, Texas would not be protecting its

citizens from the potential future actions of Minucci.

Id. at 798 . In this case, the opposite can be said. Here, Texas has a strong interest in

adjudicating this dispute. As discussed in the minimum contacts analysis, Wright is

alleged to have committed tortious acts in Texas against Texas residents. The State

of Texas has an obvious interest in providing a forum for resolving disputes involving

its citizens, particularly those disputes in which the defendant allegedly committed

a tort in whole or in part in Texas. Shapolsky , 56 S.W.3d at 135 .

In support of his contention that defending this case in Texas would subject

him to extreme financial and personal burdens, Wright testified as follows in his

affidavit offered in support of his special appearance:

At the present time, I am the sole custodian for my three children who

live with me in Switzerland. If I were compelled to appear in Texas to

defend this lawsuit[,] it would be an extreme burden upon my children,

and myself, to be away from them. It would also be a tremendous

expense to have to travel to Texas to litigate this dispute while leaving

my children behind in Switzerland. The financial expense of traveling

to Texas while leaving my children behind in Switzerland, would place

great strain on myself, and my family.

On July 1, 2003, Thales Overseas Holdings Limited (“Thales

Overseas”) lodged a Request for Arbitration against me in accordance

with Article 4 of the 1998 Rules of Arbitration of the International

Chamber of Commerce. Thales Overseas request for Arbitration seeks

monetary damages from me personally. The laws of Switzerland

exclusively govern the Request for Arbitration. Thales Overseas

acknowledges Switzerland’s exclusive jurisdiction in its request. The

arbitration is to take place in Zurich, Switzerland.

. . . [H]aving to litigate one dispute in Texas and one dispute in

Switzlerland over substantially the same issues would be a great

hardship on me, and my children.

Undoubtedly, litigation away from home creates hardship for a defendant;

however, there is no legal requirement that this hardship must be borne instead by the

plaintiff whenever the defendant is not found in the state of the plaintiff’s residence.

See Brown & Ross Int’l Distribs. , 804 S.W.2d at 531-32 (rejecting nonresident

defendant’s argument that defending suit in Texas was financially burdensome

because it would be equally burdensome for plaintiff to litigate in nonresident

defendant’s forum). While the burden on the nonresident defendant is a consideration

in our due process analysis, it is not determinative. See Guardian Royal , 815 S.W.2d

at 231 (stating that nonresident defendant must present compelling case of presence

of other considerations, outside inconvenience, and distance to render jurisdiction

unreasonable). This is particularly true when, as in this case, Texas has a strong

interest both in providing a forum for its residents and in holding parties who

committed tortious acts against its residents accountable. See id. at 232 (recognizing

that interests of forum state and plaintiff will frequently justify severe burden placed

on nonresident defendant) (citing Asahi Metal Indus. Co. v. Superior Court , 480 U.S.

102, 114 , 107 S. Ct. 1026, 1033 (1987)). We conclude that the exercise of personal

jurisdiction over Wright in this case comports with traditional notions of fair play and

substantial justice.

We overrule Wright’s third issue.

Conclusion

We hold that the trial court properly denied Wright’s special appearance.

Wright did not successfully negate specific jurisdiction and failed to show that the

exercise of personal jurisdiction over him offends traditional notions of fair play and

substantial justice. We affirm the order of the trial court denying Wright’s special

appearance.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Hanks, and Higley.