Pelican State Physical Therapy, L.P. v. Marc Bratton

Opinion issued August 30, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00199-CV

PELICAN STATE PHYSICAL THERAPY, L.P., Appellant

V.

MARC BRATTON, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2004-56851

MEMORANDUM OPINION

Appellant, Pelican State Physical Therapy, L.P. ("Pelican State"), appeals from

a final judgment dismissing its claims against appellee, Marc Bratton, which

judgment the court rendered upon granting Bratton's special appearance. We

determine (1) whether the trial court's failure to file fact findings and legal

conclusions constitutes harmful error, (2) whether the trial court erred in granting

Bratton's special appearance, and (3) whether Pelican State's appeal is frivolous so

as to merit sanctions on appeal. We affirm the judgment, and we deny Bratton's

motion for appellate sanctions against Pelican State.

Background

The material facts are largely undisputed. Pelican State was a Texas-organized

and Texas-registered limited partnership that did business as Audubon Physical

Therapy and operated a physical-therapy clinic in Slidell, Louisiana ("the Slidell

clinic"). Pelican State maintained its principal office in Houston, Texas. Pelican

State was formed by U.S. Physical Therapy, Inc. ("USPT"), a Nevada corporation

with its corporate headquarters and principal place of business in Houston, Texas.

USPT developed, managed, or operated physical-therapy clinics in 35 states through

limited partnerships or other corporate entities. USPT or one of its Texas-based

subsidiaries was typically the general partner or a limited partner in the established

partnerships. USPT developed the Slidell clinic.

There were two limited partners in Pelican State. The first was U.S. Physical

Therapy, Ltd., a wholly owned subsidiary of USPT that was located in Houston. The

second limited partner was Joe Zimmerman ("Zimmerman"), who served as the

executive director of the Slidell Physical Therapy Clinic in Slidell, Louisiana.

Zimmerman was a resident of Louisiana.

Bratton was also a Louisiana resident. He was licensed as a physical therapist

in Louisiana and practiced there, not in Texas. Bratton did not have a registered

agent for service in Texas, did not have a Texas bank account, did not own property

in Texas, and had no employees of his own in Texas.

In the summer of 2000, Bratton responded to a "blind" newspaper

advertisement in the Times-Picayune , a New Orleans newspaper, for a physical-therapist position by faxing a copy of his resume to a Mandeville clinic also owned

by Pelican State. Bratton was contacted by Zimmerman, and they arranged for a job

interview at the Mandeville clinic. Bratton then had a second interview with

Zimmerman and Royce Spradlin, whom Zimmerman identified to Bratton as the chief

executive officer of USPT, at the Mandeville clinic. Bratton was not offered a

position at that time.

In late 2000 or early 2001, Bratton visited the USPT website with the idea of

presenting USPT the possibility of opening a second physical-therapy clinic in

Slidell. Bratton contacted USPT using its "contact us" link on USPT's website. At

the hearing on his special appearance, Bratton testified that he did not recall having

seen the location of USPT's corporate headquarters on the USPT website.

In response to his having contacted USPT through its website, Bratton received

a telephone call from one of USPT's employees, who stated that opening another

clinic in Slidell would be a "delicate" matter and that Bratton would hear from USPT

later. Bratton did not hear from anyone at USPT, but Zimmerman did contact Bratton

soon afterwards. Bratton and Zimmerman had another meeting, this time at the

Slidell clinic. Zimmerman told Bratton that a second clinic was not a possibility, but

offered him a staff position as a physical therapist at the Slidell clinic. Bratton

accepted and was hired by Pelican State.

After Bratton had verbally accepted the offer, Zimmerman told Bratton that the

company would be sending him an employment agreement in the mail. Bratton

received the employment agreement in the mail from USPT a few days later, although

the agreement recited that it was between Pelican State and Bratton. On appeal and

below, the parties dispute whether the envelope in which the employment agreement

was sent showed USPT's return address in Houston. However, Bratton, who was the

only witness to testify, stated that, although the envelope did have some address with

a logo on it, he did not recall whether the mailing came from Houston. However, he

acknowledged that he later learned that USPT was a Houston-based company.

Before signing the employment agreement, Bratton questioned Zimmerman and

an employee at USPT about the non-competition and non-solicitation provisions in

the agreement. In February 2001, Bratton signed the employment agreement. Bratton

then mailed the agreement in the provided return envelope so that Spradlin could sign

it. Bratton testified that he did not recall the location to which he mailed the

employment agreement. Spradlin signed the agreement on behalf of Pelican State.

When he entered into the employment agreement, Bratton knew that Spradlin

was the chief executive officer of USPT, that Pelican State had been established as

a limited partnership by USPT, and that USPT "operated," was "affiliated with," or

"co-owned" the Slidell clinic. However, Bratton was unaware of the location of

USPT's principal place of business or that Pelican State was a Texas entity.

The employment agreement contained a one-year non-competition provision

(section 6), a one-year employee-and-patient non-solicitation provision (section 7),

and a non-disclosure provision (section 8). Under the employment agreement, the

initial term of employment was for six months, beginning March 19, 2001 and ending

September 18, 2001. After that initial term, the term of employment would extend

on a month-to-month basis unless terminated by either party with 30 days' notice.

Bratton worked for Pelican State by extending the term month to month until he

resigned in June 2004 to pursue his own clinic.

During Bratton's employment with Pelican State, USPT or one of its Houston

subsidiaries provided legal, financial, accounting, operations, compliance, and other

administrative services to Pelican State and the Slidell clinic. All salary, bonuses, and

other payments made to Bratton under the employment agreement were processed and

paid by USPT or one of its subsidiaries in Houston. Bratton testified that he did not

know that his compensation "was carried out from bank accounts maintained by the

company in Houston" because they appeared on his paystubs as having been drawn

on a Louisiana bank. Additionally, Pelican State provided Bratton's professional

liability insurance through Houston-based insurance companies , though Bratton

testified that he did not know from what state the insurance issued . All of Bratton's

"fringe benefits" while he worked for Pelican State were provided under the

employment policies or the benefits plans of USPT or its Texas-based subsidiaries.

Bratton attended a two-day initial training and orientation at USPT's Houston

office in May 2001. Approximately two months after Bratton had begun his

employment with Pelican State, the managing director was terminated, and Bratton

assumed the managerial duties at the Slidell clinic. In this role, Bratton reported to

Zimmerman. It was after this promotion that Bratton began to interact with USPT

actively on behalf of the Slidell clinic and to have contacts with Houston. For

example, during his employment with Pelican State, Bratton had over a hundred

contacts with USPT employees in Houston through telephone calls, e-mails, and the

mailing and faxing of documents. Bratton testified that he communicated with

someone at USPT in Houston approximately every two weeks or every month.

Bratton's contacts with USPT or its subsidiaries in Houston included:

•filling out monthly expense reports,

•receiving monthly financial reports,

•submitting twice-monthly payroll reports,

•submitting weekly marketing reports,

•using the Slidell clinic's intranet, which was linked to USPT's computer

network, to exchange information,

•mailing and faxing documents,

•participating in conference calls,

•using a USPT e-mail address, and

•submitting reimbursement forms for the Slidell clinic's purchases.

Additionally, beginning in May 2002, Bratton traveled to USPT's Houston office on

an annual basis for company meetings related to management at the Slidell clinic,

which resulted in approximately four or five short trips to Texas. At these annual

meetings, Bratton met with employees and reviewed marketing, Medicare, and other

administrative issues. The focus of the marketing meetings was how to increase the

revenue and the profitability of the clinic, which in turn would impact Bratton's

opportunity to earn bonuses. Bratton's uncontradicted testimony was that each of

these contacts with Houston took place at the instruction of Zimmerman or was

initiated by someone at USPT. Bratton also testified that he did not believe that he

had a choice about whether to attend the meetings and training in Houston or whether

to communicate with USPT personnel.

On June 4, 2004, Bratton resigned from Pelican State and opened his own

clinic in Louisiana. Pelican State sued Bratton for breach of contract and breach of

his duties to be loyal to and not to disclose the confidential information of Pelican

State. In Pelican State's pleading, it alleged that three days after he had resigned,

Bratton had opened his own physical-therapy clinic less than two miles from the

Slidell clinic, in violation of the non-competition provisions of his employment

agreement. Pelican State also alleged that, relying on confidential information gained

through his employment, Bratton began the process of opening, and soliciting clients

for, his new clinic while still employed with Pelican State. (1)

Bratton filed a special appearance, which the trial court granted on December

9, 2005 after an evidentiary hearing. As a result, the trial court dismissed Pelican

State's lawsuit against Bratton. Pelican State then requested that the trial court file

findings of fact and conclusions of law. Pelican State also filed a notice of past due

findings of fact and conclusions of law, but the trial court never filed any.

Failure to File Findings of Fact and Conclusions of Law

In its first point of error, Pelican State contends that the trial court's failure to

file findings of fact and conclusions of law was error that was harmful because it

prevented Pelican State from properly presenting its case to this Court.

Under Texas Rule of Civil Procedure 296, in a case tried without a jury, any

party may request the court to file findings of fact and conclusions of law. See Tex.

R. Civ. P. 296. The party's request for findings and conclusions must be filed within

20 days after judgment, and the party must serve the request on all other parties. Id.

The court must file its findings of fact and conclusions of law within 20 days after the

timely request. Tex. R. Civ. P. 297. If the court fails to file timely findings of fact

and conclusions of law, the party making the request, within 30 days after filing the

original request, must file a notice of past-due findings of fact and conclusions of law

with the clerk and serve the request on all other parties. Id. Upon the filing of the

past-due notice, the court has 40 days from the date of the original request to file its

findings of fact and conclusions of law. Id.

A trial court has a mandatory duty to file findings of fact and conclusions of

law when they are properly and timely requested. Glass v. Williamson , 137 S.W.3d

114, 117-18 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (citing Cherne Indus.,

Inc. v. Magallanes , 763 S.W.2d 768, 772 (Tex. 1989)). Although an appellant

normally has the burden on appeal to show harm, "[a] trial court's failure to file

findings of fact and conclusions of law is presumed reversible, unless the record

affirmatively shows that the requesting party was not harmed by their absence."

Alsenz v. Alsenz , 101 S.W.3d 648, 652 (Tex. App.--Houston [1st Dist.] 2003, pet.

denied); see Tenery v. Tenery , 932 S.W.2d 29, 30 (Tex. 1996). In this context, error

is harmful if it probably prevented the appellant from properly presenting its case to

the appellate court. See Tex. R. App. P. 44.1(a)(2). Put another way, the test for

determining harm is whether the circumstances of the case would require the

appellant to guess at the reason or reasons for the trial court's decision. Elliot v. Kraft

Foods N. Am., Inc. , 118 S.W.3d 50, 54 (Tex. App.--Houston [14th Dist.] 2003, no

pet.); Goggins v. Leo , 849 S.W.2d 373, 379 (Tex. App.--Houston [14th Dist.] 1993,

no writ).

We agree that the trial court erred in failing to file the requested findings of fact

and conclusions of law. We now consider whether the record affirmatively shows

that Pelican State was not harmed by this error. See Alsenz , 101 S.W.3d at 652 .

Pelican State contends that the trial court's failure to file findings of fact and

conclusions of law was harmful because it was forced to guess at the trial court's

reasons. Specifically, Pelican State argues that the record was "replete with evidence

establishing that Bratton had sufficient contacts" with Texas to support the exercise

of personal jurisdiction and that it is unclear on what evidence the trial court could

have relied in determining that Bratton had negated all jurisdictional bases. This is,

in effect, an argument that all evidence supported Pelican State's position and that

none supported Bratton's.

If truly no evidence supported the trial court's ruling (a position that we reject

below), then Pelican State would not be precluded from making its case on appeal:

Pelican State could simply argue that Bratton produced no evidence in support of his

burden. But in any event, all of the material facts are undisputed: what the parties

dispute are the conclusions of law to draw from those undisputed facts. See Glass ,

137 S.W.3d at 118 ("When, as here, the facts are undisputed and the only matters

presented on appeal are legal issues to be reviewed de novo, the failure to file

findings of fact . . . is harmless error."). The legal burden that Bratton had below was

clear-cut: to negate all possible bases of jurisdiction given Pelican State's allegations,

under well-settled common-law tests. One need not guess at the trial court's reasons:

rather, one need simply decide, given the mainly undisputed facts, whether the trial

court correctly applied the straightforward law to these facts. Finally, Pelican State

has alternatively briefed the merits of its appellate challenges. After having reviewed

its thorough briefing on appeal, we conclude that Pelican State was not prevented

from properly presenting its case by the lack of findings of fact and conclusions of

law. Alsenz , 101 S.W.3d at 652 (in concluding that failure to file findings of fact and

conclusions of law was harmless, observing that appellant "does not appear to have

had any problem presenting his case on appeal"). Accordingly, we conclude that

Pelican State has not been harmed by the absence of findings of fact and conclusions

of law.

We overrule Pelican State's first point of error.

Bratton's Special Appearance

In its second point of error, Pelican State contends that the trial court erred by

granting Bratton's special appearance and dismissing its lawsuit because the evidence

was both legally and factually insufficient to find that Bratton had negated all bases

for personal jurisdiction.

A. The Standard of Review

A legal conclusion concerning the existence of personal jurisdiction is a

question of law subject to de novo review, but that conclusion must sometimes be

preceded by the resolution of underlying factual disputes. Am. Type Culture

Collection, Inc. v. Coleman , 83 S.W.3d 801, 805-06 (Tex. 2002); BMC Software

Belg., N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002). "When . . . the trial court

does not issue fact findings, we presume that the trial court resolved all factual

disputes in favor of its ruling." Glattly v. CMS Viron Corp. , 177 S.W.3d 438, 445

(Tex. App.--Houston [1st Dist.] 2005, no pet.) (citing Am. Type Culture Collection ,

83 S.W.3d at 805-06). These implied findings of fact may be challenged for

evidentiary sufficiency when a reporter's record exists. Id . (citing BMC Software

Belg., N.V. , 83 S.W.3d at 794). However, "we review de novo if the underlying facts

are undisputed or otherwise established. Preussag Aktiengesellschaft v. Coleman , 16

S.W.3d 110, 113 (Tex. App.--Houston [1st Dist.] 2000, pet. dism'd w.o.j.). Because

the relevant, material evidence in the case before us is undisputed, we review the

complained-of ruling de novo . See id.

B. The Law of Special Appearance

A plaintiff bears the initial burden of pleading allegations sufficient to bring

a non-resident defendant within the terms of the Texas long-arm statute. Am. Type

Culture Collection , 83 S.W.3d at 807. "The nonresident defendant then assumes the

burden of negating all bases of jurisdiction in those allegations." Moki Mac River

Expeditions v. Drugg , 221 S.W.3d 569, 584 (Tex. 2007).

C. The Law of Personal Jurisdiction

A court may assert personal jurisdiction over a non-resident defendant if the

requirements of the Due Process Clause of the United States Constitution (2) and the

Texas long-arm statute (3) are both satisfied. Helicopteros Nacionales de Colom., S.A.

v. Hall , 466 U.S. 408, 414 , 104 S. Ct. 1868, 1872 (1984); CSR, Ltd. v. Link , 925

S.W.2d 591, 594 (Tex. 1996). "Because the Texas long-arm statute reaches 'as far

as the federal constitutional requirements of due process will allow,' the statute is

satisfied if the exercise of personal jurisdiction comports with federal due process."

Preussag Aktiengesellschaft , 16 S.W.3d at 113 (quoting CSR, Ltd. , 925 S.W.2d at

594 ). Moreover, Bratton judicially admitted below that he was "doing business" in

Texas within the meaning of the long-arm statute. We thus examine only whether a

Texas court's exercise of jurisdiction over Bratton would comport with the

requirements of federal due process. See id.

1. Minimum-Contacts Analysis

"Federal due process requirements are two-fold." Id. "First, the nonresident

defendant must have purposefully established such minimum contacts with the forum

state that it could reasonably anticipate being sued there." Id. (citing Burger King

Corp. v. Rudzewicz , 471 U.S. 462, 474 , 105 S. Ct. 2174, 2183 (1985)). "If the

nonresident defendant has purposefully availed itself of the privileges and benefits

of conducting business in a state, it has sufficient contacts to confer personal

jurisdiction." Id. (citing Burger King Corp. , 471 U.S. at 475 , 105 S. Ct. at 2183 ).

"Random, fortuitous, or attenuated contacts do not suffice." Id. (citing Burger King

Corp. , 471 U.S. at 475 , 105 S. Ct. at 2183 ). It is the nature and quality of the non-resident's contacts, rather than their number, that are important to the minimum-contacts analysis. Guardian Royal Exch. Assurance, Ltd. v. English China Clays ,

P.L.C. , 815 S.W.2d 223 , 230 n.11 (Tex. 1991).

Furthermore, only those contacts occurring through the date of injury are

relevant to a minimum-contacts analysis. See Schott Glas v. Adame , 178 S.W.3d 307,

314 (Tex. App.--Houston [14th Dist.] 2005, pet. denied). In its original petition,

Pelican State alleged that its injury occurred during the course of Bratton's

employment with Pelican State and continued until Bratton opened his own

competing clinic. Accordingly, in this case, any contacts with Texas that Bratton had

from shortly after he joined Pelican State through the date that he opened a competing

clinic could be relevant to the minimum-contacts analysis.

"Minimum-contacts analysis is further divided into general and specific

personal jurisdiction." Preussag Aktiengesellschaft , 16 S.W.3d at 114 . We discuss

each type of personal jurisdiction immediately below.

a. Specific Personal Jurisdiction

A court may exercise specific personal jurisdiction over a non-resident

defendant if (1) the non-resident purposely directed its activities toward the forum

state or purposely availed itself of the privileges of conducting activities there and (2)

the controversy arises out of or is related to the non-resident's contacts with the forum

state. Freudensprung v. Offshore Technological Servs., Inc. , 379 F.3d 327, 343 (5th

Cir. 2004). The non-resident defendant's purposeful conduct, not the unilateral acts

of the plaintiff, must have caused the contact. Helicopteros Nacionales de Colombia,

S.A. , 466 U.S. at 417 , 104 S. Ct. at 1873 . Although not determinative, foreseeability

is an important consideration in deciding whether the non-resident has purposefully

established minimum contacts with the forum state. Glattly , 177 S.W.3d at 446-47 .

We focus on the relationship among the non-resident, the forum, and the

litigation to determine if the alleged liability arises from or is related to an activity

conducted in Texas. Counter Intelligence, Inc. v. Calypso Waterjet Sys., Inc. , 216

S.W.3d 512, 517 (Tex. App.--Dallas 2007, pet. denies); see Blair Commc'ns, Inc. v.

SES Survey Equip. Serv., Inc. , 80 S.W.3d 723, 727 (Tex. App.--Houston [1st Dist.]

2002, no pet.); Mem'l Hosp. Sys. v. Fisher Ins. Agency, Inc. , 835 S.W.2d 645, 659

(Tex. App.--Houston [14th Dist.] 1992, no writ), disapproved on other grounds ,

Michiana Easy Livin' Country, Inc. v. Holten , 168 S.W.3d 777, 791-92 (Tex. 2005).

We examine the nature of the contacts and the "nexus" that these contacts create with

the forum state. McDermott v. Cronin , 31 S.W.3d 617, 621-22 (Tex. App.--Houston

[1st Dist.] 2000, no pet.). The "arises from or is related to" requirement of specific

personal jurisdiction requires a "substantial connection" between the nonresident

defendant's contacts and the "operative facts of the litigation." Moki Mac River

Expeditions , 221 S.W.3d at 584 . Specifically, the non-resident's conduct must have

been purposely directed at or have occurred in the forum and must have a "substantial

connection," resulting in the alleged injuries, with the litigation's operative facts.

Id. ; Glattly , 177 S.W.3d at 446 ; see Mem'l Hosp. Sys. , 835 S.W.2d at 649-50 .

b. General Personal Jurisdiction

When liability does not arise from any of the defendant's contacts, a court may

nonetheless exercise personal jurisdiction over the defendant if its contacts are

continuous and systematic. See Helicopteros Nacionales de Colombia, S.A. , 466 U.S.

at 416 , 104 S. Ct. at 1873 ; CSR Ltd. , 925 S.W.2d at 595 . This type of personal

jurisdiction is termed general personal jurisdiction. CSR Ltd. , 925 S.W.2d at 595 .

"To support a finding of general [personal] jurisdiction, the defendant's forum

activities must have been 'substantial,' which requires stronger evidence of contacts

than for specific personal jurisdiction." Preussag Aktiengesellschaft , 16 S.W.3d at

114 (citing and quoting CSR Ltd. , 925 S.W.2d at 595 ).

2. Fair Play and Substantial Justice

"Second, if the nonresident defendant has purposefully established minimum

contacts with the forum, the exercise of jurisdiction must comport with fair play and

substantial justice." Preussag Aktiengesellschaft , 16 S.W.3d at 114 (citing Burger

King Corp. , 471 U.S. at 477 , 105 S. Ct. at 2184 and Guardian Royal , 815 S.W.2d at

231 ).

D. Discussion

In issue two, Pelican State argues that the trial court erred in granting Bratton's

special appearance because Texas had both specific and general personal jurisdiction

over him and because the exercise of personal jurisdiction over Bratton comported

with fair play and substantial justice.

1. Specific Personal Jurisdiction Over Bratton

Under issue two, Pelican State first argues that Bratton's contacts with Texas

gave rise to specific personal jurisdiction. In support, Pelican State notes that (1)

Bratton contacted USPT, a Houston-based business, through its website, which

contact eventually led to Zimmerman's contacting Bratton about employment with

Pelican State (4) and (2) Bratton continued his employment with Pelican State month to

month despite having learned that USPT was a Texas business and having had to

communicate with USPT on a regular basis. Pelican State contends that, "by entering

into and continuing his employment relationship," Bratton created "continuing

obligations" with "a Texas resident through which he derived substantial, personal

benefit and [thus] manifestly availed himself of the privilege of conducting business

within" Texas. As evidence of these "continuing obligations," Pelican State relies

especially on Bratton's regular business contacts and communications with USPT's

Houston office after he became the Slidell clinic's director. Pelican State adds, "[I]n

June 2004, when Bratton resigned and began competing with Pelican State and using

its confidential information, he could reasonably foresee that he might cause injury

to Pelican State and/or USPT in their home state."

Pelican State's focus is overly broad. As applied to this case, the test for

specific personal jurisdiction over Bratton requires--in addition to Bratton's

purposeful direction of activities toward or purposeful availment of the privileges of

doing business in Texas--a substantial connection between those contacts of Bratton

and the litigation's operative facts. See Moki Mac River Expeditions , 221 S.W.3d at

584 . Assuming without deciding that the contacts to which Pelican State points

evidence purposeful availment of Texas's benefits, we hold that there is not a

sufficient connection between those contacts and the litigation to support the exercise

of specific personal jurisdiction over Bratton.

Pelican State's petition alleged causes of action against Bratton for breach of

contract and breach of his duties to be loyal to, and not to disclose the confidential

information of, Pelican State. The facts that Pelican State alleged in support of these

claims were (1) that for "some time" before his resignation in June 2004, Bratton had

put "in . . . motion" his plans to open a competing physical-therapy clinic in

Louisiana; (2) that he had used confidential information from Pelican State to do so

after his resignation; (3) that he had allowed Pelican State's patient base to dwindle

before his departure; (4) that he had spent the last months of his employment

supervising construction of and obtaining permits for his new clinic; and (5) that he

was competing with Pelican State in Louisiana contrary to his covenants not to

compete and not to solicit.

Given these pleadings, the operative facts of Pelican State's suit will concern

Bratton's acts in disclosing Pelican State's confidential information, in soliciting

Pelican State's clientele for his new clinic, and in using his time and efforts while he

was employed at the Slidell clinic in support of his new clinic, rather than for Pelican

State's business. These are the facts that are relevant for a specific-personal-jurisdiction analysis, and the allegations and the evidence indicated that these acts

happened in Louisiana. See id. (holding that test for the "relatedness" portion of the

specific-personal-jurisdiction test is that a substantial connection exist between the

litigation's operative facts and the non-resident defendant's contacts with Texas); see

also Gustafson v. Provider Healthnet Servs., Inc. , 118 S.W.3d 479, 483 (Tex.

App.--Dallas 2003, no pet.) (holding that none of non-resident's following contacts

were sufficiently connected to execution of confidentiality agreement that non-resident was alleged to have breached or to dissemination of confidential information

so as to allow exercise of specific personal jurisdiction over him: (1) employment

relationship itself; (2) two visits to Texas during employment; (3) payment from

Texas bank; (4) submission of requests for reimbursement to Texas and subsequent

cashing of those checks; (5) employee's communication with employees located in

Texas; (6) employee's health benefits' being administered from Texas offices; (7)

provision of employee's health insurance through Texas company; and (8) Texas

location of insurance agents who administered employee's dental and life insurance).

In contrast, Bratton's regular business contacts with USPT--even were we to

assume that those contacts sufficed to show minimum contacts--were not

substantially related to the litigation's operative facts. For example, Pelican State did

not allege and does not contend that Bratton breached the employment agreement or

his various duties during his trips to Texas or by his regular communications with and

submissions to USPT's Houston employees on routine business matters.

We distinguish Burger King Corp. v. Rudzewicz , on which Pelican State relies,

because in it, the Florida plaintiff sued its non-resident franchisee for breach of some

of the same contractual obligations that constituted, or were closely related to, the

franchisee's contacts with Florida. See id. , 471 U.S. at 468, 479-81 , 105 S. Ct. at

2180, 2186 . Here, in contrast, the specific contractual obligations that Pelican State

argues constituted Bratton's contacts with Texas were not those that Bratton allegedly

breached . Additionally, and unlike here, non-resident Rudzewicz had a long-term

franchise relationship with, negotiated directly and extensively with, and had

"continuing and wide-reaching" contacts with the Florida-based plaintiff, and the

franchise agreement contained a choice-of-law clause calling for the application of

Florida law. See id. at 479-82 , 105 S. Ct. at 2186-87 .

For these reasons, we hold that the that the trial court did not err in implicitly

concluding that it could not exercise specific personal jurisdiction over Bratton.

2. General Personal Jurisdiction Over Bratton

Under the remainder of issue two, Pelican State argues that Bratton's contacts

with Texas also gave rise to general personal jurisdiction.

In support, Pelican State relies on Bratton's attending a two-day seminar in

Houston soon after he was hired and on his actions after he became the Slidell clinic's

director, which included the following: his regular communications with USPT

employees in Houston; his few annual visits to USPT's office; his insurance and

benefits, which were administered in Houston; and his sending business information

and documentation regularly to USPT in Houston. However, Pelican State did not

contend below, and does not contend here, that Bratton acted outside the scope of his

employment, or that he acted as anything but the agent of Pelican State, in attending

this two-day training session or in conducting these routine contacts. (5) "Texas law is

clear that a business's contacts may not be imputed to its personnel to establish

personal jurisdiction over them." Nikolai v. Strate , 922 S.W.2d 229, 241 (Tex.

App.--Fort Worth 1996, writ denied); cf. Stuart v. Spademan , 772 F.2d 1185, 1197

(5th Cir. 1985) (holding that "an individual's transaction of business within the state

solely as a corporate officer does not create personal jurisdiction over that individual

though the state has in personam jurisdiction over" his employer, although such

"fiduciary shield" may be pierced in circumstances supporting disregard of corporate

entity, such as by alter ego theory). Pelican State has never argued that Bratton's

cited, routine contacts were anything but his actions as Pelican State's employee.

Therefore, Bratton's routine acts conducted in the course of his employment with

Pelican State cannot be considered in determining whether Texas has general

personal jurisdiction over him.

In any event, even if these actions can be attributed to Bratton individually for

purposes of determining general personal jurisdiction over him, we hold that they do

not meet due process standards. Bratton testified without contradiction that his travel

to Houston was done at Zimmerman's direction, which he did not believe that he

could refuse, and that his communications with USPT employees were instigated by

USPT, not by him. See Hitachi Shin Din Cable, Ltd. v. Cain , 106 S.W.3d 776, 784

(Tex. App.--Texarkana 2003, no pet.) (noting that contacts that occur at the direction

of third party are not sufficient to establish purposeful availment). Furthermore,

Bratton does not have an agent for service in Texas, a bank account in Texas, any

employees in Texas, or any property interests in Texas, and he does not solicit

business in Texas. Texas courts often consider "the lack of an office, agent, or the

solicitation of business as determinative to the exercise" of general jurisdiction.

James v. Ill. Cent. R.R., 965 S.W.2d 594 , 598 n.1 (Tex. App.--Houston [1st Dist.]

1998, no pet.) (citing Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769, 772-74

(Tex. 1995) and concluding that no general personal jurisdiction existed when

defendant never maintained office or other place of business in Texas and had no

agents in Texas); see also J.D. Fields & Co. v. W.H. Streit, Inc. , 21 S.W.3d 599,

602-03 (Tex. App.--Houston [1st Dist.] 2000, no pet.). The test for general personal

jurisdiction requires stronger evidence of contacts than does the test for specific

personal jurisdiction. Preussag Aktiengesellschaft , 16 S.W.3d at 114 . This evidence

does not meet that test.

We hold that the trial court did not err by implicitly concluding that Bratton

lacked the "continuous and systematic contacts" with Texas that the Due Process

Clause requires for Texas to exercise general personal jurisdiction over him.

3. Conclusion Concerning Bratton's Special Appearance

We hold that the trial court did not err in granting Bratton's special appearance

and in dismissing the claims against him. We overrule Pelican State's second issue.

Appellate Sanctions

Bratton asks us to sanction Pelican State under Rule of Appellate Procedure 45

for its pursuing a frivolous appeal. See Tex. R. App. P. 45. Under rule 45, we may

award just damages if we objectively determine, after considering the record, briefs,

or other papers filed in the Court, that an appeal is frivolous. Smith v. Brown , 51

S.W.3d 376, 381 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). We examine

the record from the viewpoint of the appellant and decide whether it had reasonable

grounds to believe that the case could be reversed. Id.

Pelican State was able to show that Bratton did have some contacts with

USPT's Houston offices. We thus conclude that Pelican State had a reasonable

ground to believe that the judgment might be reversed and that its appeal is not

frivolous.

We overrule Bratton's motion for rule 45 sanctions.

Conclusion

We affirm the judgment of the trial court.

All pending motions are overruled.

Tim Taft

Justice

Panel consists of Justices Taft, Alcala, and Hanks.

1. Specifically, Pelican State alleged that, approximately eight months after

Bratton had begun his employment with Pelican State, Bratton's clinic (Slidell

Physical Therapy Center) was organized and registered as a Louisiana limited

liability company. Pelican State also alleged that Bratton had told Zimmerman

that he had spent time during his last months of employment supervising

construction of and obtaining new permits for the clinic and that he had

allowed the number of patients at the Slidell clinic to dwindle.

2. U.S. Const. amend. XIV, § 1.

3. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997)

.

4. We note that, in its reply brief, Pelican State asserts that it "does not point to

Bratton's use of the 'Contact Us' link on USPT's website as the basis for

specific [personal] jurisdiction," but instead points to his use of that site as

"evidence that he knew, or at least should have known, that he was forming an

employment relationship with a Texas resident prior to signing his contract."

5. Pelican State's allegations against Bratton were that he breached his duties

owed to it--that is, that he acted outside his role as Pelican State's employee

and thus acted in his individual capacity--in divulging Pelican State's

confidential information, soliciting its customers, and competing with it.

These alleged "ultra vires" actions--which occurred in Louisiana--are

separate from Bratton's actions listed above on which Pelican State relies to

show general personal jurisdiction over Bratton. That is, the matters on which

Pelican State bases its appeal are routine interactions between an employee of

Pelican State (Bratton) and one of Pelican State's limited partners (USPT);

they are not the kind of actions that can be attributed to Bratton in his

individual capacity. Pelican State has not argued and did not produce evidence

to show otherwise.