Polycomp Administrative Services, Inc. v. Jonathan David Jackson and Brenda Jackson

Opinion Issued April 22, 2010

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-09-00999-CV

____________

POLYCOMP ADMINISTRATIVE

SERVICES , INC., Appellant

V.

JONATHAN

DAVID JACKSON and BRENDA JACKSON, Appellees

On Appeal

from the 164th District Court

Harris

County, Texas

Trial Court Cause No.

2009-41385

MEMORANDUM OPINION

In this accelerated interlocutory appeal, appellant, Polycomp

Administrative Services, Inc. (Polycomp), challenges the trial court’s order

denying its special appearance.

Appellees, Brenda and Jonathan D. Jackson, sued Polycomp, a non-resident

California corporation, alleging claims for violations of the Texas Securities

Act, the Texas Deceptive Trade Practices–Consumer Protection Act, breach of

fiduciary duty, common law fraud, negligence, and conspiracy. Polycomp filed a special appearance that the

court denied. In three issues, Polycomp

contends that the trial court erred by (1) denying its special appearance, (2)

failing to file findings of fact and conclusions of law, and (3) failing to

sustain Polycomp’s objection to the affidavit of Jason Gibson, the Jacksons’

attorney. We conclude the trial court

erred in denying Polycomp’s special appearance.

We do not reach Polycomp’s other two issues regarding the findings of

fact and conclusions of law and Gibson’s affidavit. We reverse the trial court’s order and render

judgment granting the special appearance.

Background

Polycomp

provides benefit plan administration and consulting services for retirement

plans, cafeteria plans, self-directed IRAs, and association trusts. It is a third-party administration firm and

provides record keeping and reporting services.

Polycomp states in its pleadings that it is a foreign company that does

not maintain a regular place of business in Texas, does not have any agents in Texas,

and that it is a corporation organized under the laws of the State of

California.

The Jacksons asserts that they lost approximately

$515,000.00 of their retirement funds in an investment scheme run by

Diversified Lending Group, Inc. (DLG), a real estate investment firm. The Jacksons claim that DLG raised funds by

selling securities to generate capital for its investment pool and that DLG

offered and sold its notes through a nationwide network of insurance agents and

salespeople. They allege that after they

bought DLG investments, Polycomp served as a third party administrator for DLG

and was the intermediary between the Jacksons and DLG. The Jacksons further allege that Brenda

signed Polycomp contracts in Texas introduced to her by a third party and that

Polycomp later sent Brenda quarterly account statements pursuant to Polycomp’s contractual

duties. They contend that Polycomp should

be subject to the jurisdiction of Texas because Brenda signed a Polycomp

contract in Texas, Polycomp sent quarterly statements to Brenda who lives in

Texas, and the statements contained fraudulent misrepresentations.

To support

their allegations, the Jacksons presented evidence in the form of two Polycomp

“Contract[s] for Services” and two Polycomp “IRA Simplifier” contracts. In September

2007, Brenda signed the first two Polycomp contracts. First, she signed an “IRA Simplifier”

contract issued by First Regional Bank of Woodland Hills, California, “care of

Polycomp.” The contract establishes a

traditional individual retirement account (IRA), with Polycomp serving as

custodian of the account. Second, Brenda

signed a Polycomp “Contract for Services” so that Polycomp could administer

Brenda’s self-directed IRA investment. In

June 2008, Brenda signed two new, nearly identical, Polycomp service and

simplifier contracts. The contracts

indicate that Brenda was a Texas resident at the time she signed the

contracts.

The

Jacksons also presented affidavits by Brenda and Jonathan and an affidavit by

their attorney, Gibson. Brenda’s

affidavit states that she signed the contracts in Texas and that Polycomp sent quarterly

account statements to her Texas address regarding her investment. In Jonathan’s affidavit, he states he

witnessed Brenda sign the services contract and IRA Simplifier contract and

confirms that he and Brenda received quarterly account updates from Polycomp at

their home in Texas. Gibson’s affidavit stated

that “to the best of his knowledge,” clients of his contracted with Polycomp

and that Polycomp sent statements to his clients.

Finally,

the Jacksons presented images from Polycomp’s website. The first image is of a “contact us” page that

includes addresses of three Polycomp offices in California. The second image is of Polycomp’s online

client login page that includes an email address for technical support. The third image is a login page entitled

“Self-directed IRA Account Information.”

Polycomp presented evidence in the form of an affidavit

from its co-owner and CEO, Harry Veldkamp.

In the affidavit, Veldkamp denied that Polycomp had any contacts in

Texas. He stated, in part, that Polycomp

does not have a telephone listing in Texas, does not advertise in Texas, and

does not recruit Texas residents.

The trial

court held a hearing and denied Polycomp’s special appearance. After the trial court denied Polycomp’s

special appearance, Polycomp submitted a more detailed amended Veldkamp

affidavit. Polycomp also filed a motion

for reconsideration and a request for findings of fact and conclusions of

law. The trial court did not rule on the

motion for reconsideration and did not issue findings of fact and conclusions

of law.

Special Appearance

In its first issue, Polycomp contends the trial court erred

by overruling its special appearance. It

asserts there is no basis for asserting either specific or general jurisdiction

over Polycomp. It further asserts that

asserting jurisdiction over Polycomp would violate traditional notions of fair

play and substantial justice.

A. Review of Trial Court’s Ruling and Implied

Findings

Personal jurisdiction is a question of law which we review de

novo.

Retamco Operating, Inc. v. Republic Drilling Co. , 278 S.W.3d 333,

337 (Tex. 2009). Although inquiring into

the merits would violate due process, a trial court must frequently resolve

preliminary questions of fact to determine the jurisdictional question. Capital

Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd. , 260 S.W.3d

67, 84 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

When, as here, the trial court does not make findings of

fact and conclusions of law in support of its 120a ruling, we must infer “all

facts necessary to support the judgment,” on condition that they are raised by

the pleadings and have support in the record of the special-appearance

hearing. Id. (quoting BMC Software

Belgium, N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002)); see also Tri-State Bldg. Specialties, Inc.

v. NCI Bldg. Sys., L.P. , 184 S.W.3d 242, 246 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (citing Am. Type Culture

Collection, Inc. v. Coleman , 83 S.W.3d 801, 806 (Tex. 2002)) (stating that

reviewing court should presume trial court resolved all factual disputes in

favor of its judgment if trial court issues no findings of fact). We consider only the evidence that favors the

trial court’s decision in addressing evidentiary challenges when the trial

court issues no findings of fact or conclusions of law, and we may sustain the

ruling on any reasonable theory that is consistent with the evidence and the

applicable law. Id.

B. Burden of Proof

In a suit against a nonresident defendant, the initial

burden is on the plaintiff, in this case, the Jacksons, to plead sufficient

allegations to bring the defendant within the provisions of the Texas long-arm

statute. See Kelly v. Gen. Interior Const., Inc. , 301 S.W.3d 653, 658 (Tex.

2010). In reviewing the Jacksons’

jurisdictional allegations, we ask only whether they are sufficient to invoke

exercise of personal jurisdiction over Polycomp without regard to the

merits. Id. When a plaintiff meets

its pleading burden, the burden of proof shifts to the nonresident defendant,

who must then negate all possible grounds for personal jurisdiction alleged by

the plaintiff. Id.

C. The

Law of Personal Jurisdiction

“Texas courts may

assert in personam jurisdiction over

a nonresident if (1) the Texas long-arm statute authorizes the exercise of

jurisdiction, and (2) the exercise of jurisdiction is consistent with federal

and state constitutional due-process guarantees.” Id.

(quoting Moki Mac River Expeditions v.

Drugg , 221 S.W.3d 569, 574 (Tex. 2007)).

1. Texas

Long-arm Statute

The Texas long-arm statute provides:

In addition to other acts that may constitute doing

business, 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 an intermediary

located in this state, for employment inside or outside this state.

Tex.

Civ. Prac. & Rem. Code § 17.042 (Vernon 2008). The Texas

long-arm statute’s broad doing-business language “allows the statute to reach

as far as the federal constitutional requirements of due process will

allow.” Retamco Operating, Inc. , 278 S.W.3d at 337 (citing Moki Mac , 221 S.W.3d at 575 ). Therefore, we only analyze whether Polycomp’s

acts would bring Polycomp within the jurisdiction of Texas consistent with

constitutional due process requirements.

Id.

2. Due

Process Constraints

Under constitutional due-process analysis, personal

jurisdiction is achieved when (1) the non-resident defendant has established

minimum contacts with the forum state, and (2) the assertion of jurisdiction

complies with “traditional notions of fair play and substantial justice.” Id.

at 338 (quoting Int’l Shoe Co. v. Wash. ,

326 U.S. 310, 316 , 66 S. Ct. 154, 158 (1945)).

We focus on the defendant’s activities and expectations when deciding

whether it is proper to call the defendant before a Texas court. Id.

a. Minimum Contacts

A defendant establishes minimum contacts with a state when

it “purposely avails itself of the privilege of conducting activities within

the forum state, thus invoking the benefits and protections of its laws.” Id.

(quoting Hanson v. Denckla , 357 U.S.

235, 253 , 78 S. Ct. 1228, 1240 (1958)). The

defendant’s activities, whether the activities consist of direct acts within

Texas or conduct outside Texas, must justify a conclusion that the defendant

could reasonably anticipate being called into a Texas Court. Id. A non-resident’s contacts can give rise

to either specific or general jurisdiction.

Id.

b. General

Jurisdiction

General

jurisdiction arises when the defendant’s contacts with the forum are continuous

and systematic. Id. To support general

jurisdiction, the defendant’s forum activities must have been “substantial,”

which requires stronger evidence than for specific jurisdiction. Preussag

Aktiengesellschaft v. Coleman , 16 S.W.3d 110, 114 (Tex. App.—Houston [1st

Dist.] 2000, pet. dism’d w.o.j.). At

trial and on appeal, the Jacksons have not argued that Polycomp is subject to

the general jurisdiction of Texas. The

Jacksons contend that Polycomp has made multiple contacts in Texas, but they

have never alleged that the contacts are “substantial.” We conclude Polycomp is not subject to the

general jurisdiction of Texas. See Credit

Commercial de France, S.A. v. Morales , 195 S.W.3d 209, 217 (Tex. App.—San

Antonio 2006, pet. denied) (applying only specific jurisdiction analysis;

holding that where neither party argues that general jurisdiction applies and

trial court only determined that appellants were subject to specific

jurisdiction, appellant is not subject to general jurisdiction of Texas).

c. Specific Jurisdiction and Purposeful

Availment

Specific jurisdiction

arises when (1) the defendant purposefully avails itself of conducting

activities in the forum state, and (2) the cause of action arises from or is

related to those contacts or activities.

Retamco Operating, Inc. , 278

S.W.3d at 338 (citing Burger King Corp.

v. Rudzewicz , 471 U.S. 462, 472 , 105 S. Ct. 2174, 2182 (1985); Nat. Indus. Sand Ass’n v. Gibson , 897

S.W.2d 769, 774 (Tex. 1995)). In a

specific jurisdiction analysis, “we focus . . . on the ‘relationship

among the defendant, the forum [,] and the litigation.’” Id.

(quoting Moki Mac , 221 S.W.3d at

575–76).

We must first determine if Polycomp purposely availed

itself of the privilege of conducting activities in Texas. We consider three issues. Id. First, only the defendant’s contacts with the

forum are relevant, not the unilateral activity of the plaintiff or a third party. Id.

at 339. Second, the contacts relied upon

must be purposeful rather than random, fortuitous, or attenuated. Id.

Thus, sellers who reach out beyond one

state and create continuing relationships and obligations with citizens of

another state are subject to the jurisdiction of the latter in suits based on

their activities. Id. Finally, the defendant

must seek some benefit, advantage or profit by availing itself of the

jurisdiction. Id. In conducting this

analysis, we focus on the quality and nature of the defendant’s contacts,

rather than the number of contacts. Id.

In their petition the Jacksons allege:

14. Th[e trial

court] has jurisdiction over Defendants because Defendants have done business

in Texas, committed a tort in Texas and have had continuous contacts with

Texas. In addition, the damages for

which Plaintiffs bring suit exceed the minimum jurisdictional limits of the

court.

In the Jacksons’ response

to Polycomp’s special appearance they allege the trial court has jurisdiction over

Polycomp because Polycomp purposely availed itself through (i) four contracts,

(ii) updates and statements, (iii) an internet website, and (iv) profiting from

Texas activities. We address the

Jacksons’ responses separately.

i. Four

Contracts

The first

element of purposeful availment is that a defendant can only trigger specific

jurisdiction through its own conduct, not the unilateral acts of the plaintiff

or third parties. See IRA Res., Inc. v. Griego , 221 S.W.3d 592, 596 (Tex. 2007). The Jacksons assert four contracts show

Polycomp triggered specific jurisdiction through its own conduct. They alleged

13. Polycomp

is subject to the Texas Long Arm Statute because [it] contracted with the

Jacksons, who are Texas residents.

Specifically, Brenda Jackson signed four separate Polycomp documents: a

2007 and 2008 Polycomp “contract for services” and a 2007 and 2008 IRA

simplifier. Each of the four contracts

were signed at Safe Equity Planning in Friendswood, Galveston County, Texas.

The

Jacksons first support their allegation with a 2007 and 2008 “Contract for

Services.” The 2007 and 2008 Contracts

for Services note that, “This contract shall become effective and binding upon

Polycomp when duly accepted as indicated by a dated signature by an authorized

representative of Polycomp.” The 2007

version of the Contract for Services includes no signature at all from any

person claiming to represent Polycomp.

The 2008 version of the “Contract for Services” has a signature of a

Polycomp “consultant” but has no date next to the signature. Both Contracts for Services note that

Polycomp is a “Third Party Administrator” and that Polycomp is a “California

corporation.”

The

Jacksons also support their allegations with a 2007 and a 2008 IRA Simplifier

contract. The 2007 and 2008 IRA

Simplifier contracts are contracts with First Regional Bank “care of Polycomp.” Each includes a signature of Brenda and the

date she signed. The 2007 IRA Simplifier

contract includes a signature of a “custodian” and the date the custodian

signed. The 2008 IRA Simplifier contract

does not include the custodian signature.

Both contracts include the language stating, “If it is necessary to

apply any state law to interpret and administer this Agreement, the law of our

domicile shall govern.” The evidence

shows Polycomp is domiciled in California.

Both IRA Simplifier contracts repeatedly note that Polycomp has a

custodial role only and that Brenda has “exclusive responsibility for and

control over the investment of the assets [in her] IRA.”

In

addition, the Jacksons included three affidavits, one from Brenda, one from

Jonathan, and one from Gibson, the Jacksons’ attorney. In Brenda’s affidavit, she states, in part:

I signed a contract for

services with [Polycomp] at Safe Equity Planning in Friendswood, Galveston

County, Texas on September 17, 2007. I

also signed a Polycomp IRA simplifier at that same time that I signed the

contract. The contract and simplifier

were presented to me in Texas by Paul Brown of Safe Equity Planning. . . .

After signing the Polycomp

contract and IRA simplifier, I received quarterly updates from Polycomp at my

home in Deer Park, Texas, Harris County.

The quarterly updates showed my investment with DLG was growing. I later discovered the statements were false

and the investment was not growing.

Occasionally, Polycomp would send newsletters to my home.

In Jonathan’s affidavit

he states he witnessed Brenda sign a Contract for Services and an IRA

simplifier contract at Safe Equity Planning in Friendswood, Galveston County,

Texas. He also confirms that he and

Brenda received quarterly updates from Polycomp at their home in Deer Park,

Harris County, Texas. Gibson’s affidavit

notes that to the “best of his knowledge” his clients have signed contracts

with Polycomp and Polycomp has sent statements to his clients.

The

Contracts fail to show that Polycomp had any purposeful contact with

Texas. First, the evidence indicates

Polycomp is not a party to either the 2007 or 2008 Contract for Services. By the contracts’ own terms, before Polycomp

can be a party to the contract, the contract requires a “dated signature” from

a representative of Polycomp. The contracts

specifically state, “This contract shall become effective and binding upon

Polycomp when duly accepted as indicated by a dated signature by an authorized

representative of Polycomp.” Each

Contract for Services lacks either a date or a signature, or both. Similarly, it appears that Polycomp is not a

party to the 2008 IRA Simplifier contract because a representative of Polycomp

did not sign. Polycomp, however, does

appear to be a party to the 2007 IRA Simplifier Contract because the contract

includes a signature from a Polycomp “consultant.” It appears, therefore, that Polycomp is a

party to at least one of the contracts.

A contract

does not alone constitute a sufficient “contact” for due process purposes. See id.

at 597–98 (citing Burger King Corp. , 471 U.S. at 478 , 105

S. Ct. at 2185 (noting that if question is whether contract with nonresident

defendant can establish sufficient minimum contacts, “we believe the answer

clearly is that it cannot”)). Here, both

the 2007 and 2008 IRA Simplifier contracts include language that California’s

laws are to govern the contract. The

contracts, therefore, are some evidence that Polycomp intended to subject

itself to the jurisdiction of California, not Texas. See

Michiana Easy Livin’ Country, Inc. v. Holten , 168 S.W.3d 777 , 792–93 (Tex.

2005) (noting that insertion of clause designating foreign forum suggests that no

local availment was intended); see also

Burger King Corp. , 471 U.S. at 482 , 105 S. Ct. at 2187 (holding that

choice-of-law provisions should not be ignored in considering whether defendant

has “purposefully invoked the benefits and protections of state’s laws”).

As proof

that Polycomp purposely availed itself, the Jacksons point to evidence that

shows Brenda signed the contracts in Texas.

In Brenda’s affidavit she states that she signed the 2007 Contract for

Services at Safe Equity Planning in Friendswood, Galveston County, Texas in

2007. But, as noted above, Polycomp does

not appear to be a party to the 2007 Contract for Services because there is no

signature or date in the area where Polycomp would affix a dated

signature.

Brenda

further states in the affidavit that Paul Brown of Safe Equity Planning

presented the Contract for Services and the IRA Simplifier contract to her when

she signed it in Friendswood. Although

Brenda implies that Paul Brown of Safe Equity Planning is an agent of Polycomp,

the record undisputedly shows that Polycomp is a registered California

corporation with no agents in Texas.

Brown

could be an apparent agent if Polycomp either knowingly permitted Brown to hold

himself out as having authority or showed such lack of ordinary care as to

“clothe [Brown] with indicia of authority.”

See Griego , 221 S.W.3d at

596 . The record, however, shows no

evidence of apparent authority. Both

Brenda’s and Jonathan’s affidavits state that Brown worked for Safe Equity

Planning, and nowhere do they state in the affidavits that either Brown or Safe

Equity Planning was associated with Polycomp.

Although Brown may have provided Polycomp contracts to Brenda to set up

a self-directed IRA, and Polycomp may have later processed the contracts, the

contracts expressly defined Polycomp’s role as a mere custodian. Nothing in the contracts gives Brown an

indicia of authority. See id.

The

contracts, however they ended up in Texas, indicate clearly that Polycomp

stands outside the investment transaction between the Jacksons and Brown, Safe

Equity Planning, or BLG. See id.

Texas law does not presume agency, and the party who alleges it has the

burden of proving it. See id.

Nothing in this record shows that Polycomp had knowledge, much less

control, over Brown or his employer, whose unilateral actions cannot subject

Polycomp to specific jurisdiction in Texas.

We conclude the Jacksons have failed in their burden to show Polycomp

triggered specific jurisdiction through its own conduct.

ii. Website

The second

step in showing purposeful availment requires the Jacksons to show that

Polycomp’s contacts with Texas were purposeful and not random, fortuitous, or

attenuated. Before the trial court, in

their response to Polycomp’s special appearance, the Jacksons assert Polycomp

made purposeful contact with Texas through their website. They state

22. . . .

Polycomp hosts a website that is online in Texas for the purpose of advertisement,

the exchange of information with potential clients, and business transactions

with established clients. Specifically,

the website allows potential clients to fill out an online form to send

information to Polycomp and allows established clients to fill out an online

form to send information to Polycomp and allows established clients to login to

access “self-directed” account information.

They support the

allegation with images of the website.

The first image of Polycomp’s website shows a webpage that lists the

addresses of Polycomp’s offices in California and a “Contact us” field. The second image is a “Plan Administration

Client Login” page. The page includes a

technical support email address. The

final image is of an account information page entitled “Self-directed IRA

Account Information.”

The

website alone fails to show that Polycomp’s contacts with Texas were purposeful

and not random, fortuitous, or attenuated.

For the purposes of establishing personal jurisdiction, Internet usage

is divided into three categories, and is determined using a sliding scale. Choice

Auto Brokers, Inc. v. Dawson , 274 S.W.3d 172, 177 (Tex. App.—Houston [1st

Dist.] 2008, no pet.). “At one end of

the scale are websites clearly used for transacting business over the Internet,

such as entering into contracts and knowing and repeated transmission of files

of information, which may be sufficient to establish minimum contacts with a

state.” Id. (quoting Reiff v. Roy ,

115 S.W.3d 700, 705 (Tex. App.—Dallas 2003, pet. denied)). “On the other end of the spectrum are ‘passive’

websites that are used only for advertising over the Internet and are not

sufficient to establish minimum contacts even though they are accessible to

residents of a particular state.” Id. at 177–78 (quoting Reiff , 115 S.W.3d at 705–06). “In the middle are ‘interactive’ websites

that allow ‘exchange’ of information between a potential customer and a host

computer.” Id. at 178 (quoting Reiff ,

115 S.W.3d at 706 ). Jurisdiction in

cases involving interactive websites is determined by the degree of

interaction. Id.

The record

does not make clear how interactive the website is. Accepting as true the Jacksons’ assertions

that the website allows “potential clients to fill out an online form and send

information to Polycomp” and that the website allows “established clients to

login” to the website to access information, these assertions do not show that

the website was more than “interactive” because the assertions, and images of

the website, do not show that the Jacksons could enter into contracts with

Polycomp or that Polycomp could make knowing and repeated transmission of files

of information. See Choice Auto Brokers , 274 S.W.3d at 178 . Because the degree of interactivity falls in

either the “passive” or “interactive” categories, the website alone does not

show purposeful conduct, and we look beyond the internet activity and review

other evidence of the degree of interaction between the parties. See id.

at 178 ; see also Daimler-Benz Aktiengesellschaft

v. Olson , 21 S.W.3d 707, 725 (Tex. App.—Austin 2000, pet. dism’d w.o.j.)

(interactive website alone insufficient to subject appellant to jurisdiction of

Texas court).

iii. Updates

and Statements

The Jacksons contend on appeal that quarterly statements and

newsletters, sent from Polycomp to Brenda, show that Polycomp’s contacts were

purposeful. The Jacksons alleged

14. . . . Polycomp

issued quarterly updates to the Jacksons in Texas which claimed DLG was

investing their funds in real estate and indicated the Jacksons’ fund was

growing, when in fact it was not.

. . . .

18. . . . Polycomp

contracted with the Jacksons in Texas for administrative services in their

investment with DLG. Pursuant to the

contract, Polycomp mailed quarterly account statements to the Jackson’s [sic]

residence in Deer Park, Harris County, Texas.

Each of these statements were directed to Texas and contained

misrepresentations of material fact . . . .

The

Jacksons did not present any statements to the trial court to support their

allegation. The Jacksons did sign

affidavits stating Polycomp sent quarterly statements to their address, but

assuming the affidavits are accurate, quarterly statements fail to show that

Polycomp’s contacts were purposeful and fail to disprove that any contact was

not random, isolated, or fortuitous. The

contracts state that the Jacksons are solely responsible for all investment

decisions and Polycomp’s duty was to act only as a passive custodian of the

Jacksons’ IRA account. See Griego , 221 S.W.3d at 598 . Although Polycomp sent account statements to

Texas, this administrative paperwork is a mere incident of Polycomp’s custodial

role. See id. Furthermore, the

evidence shows Polycomp performed the obligations of its custodial role in

California. The evidence indicates that

Polycomp has no bank account or postal box in Texas, and the record does not

show that any of its employees ever traveled to Texas for business. There is no evidence that shows Polycomp

either instigated or authorized any significant activity in Texas. Instead, all of its actions under the

contracts incurred in California.

We

conclude that Polycomp’s contacts with Texas—agreeing to administer Brenda’s

IRA account and sending the Jacksons quarterly account statements—are too

inconsequential to support a claim that it purposefully directed its activities

here. See id. (holding that appellant’s contacts with Texas, which

included only agreeing to administer appellee’s IRA account, accepting payment

for opening account, and sending appellee periodic account statements, were too

inconsequential to support claim that it purposefully directed its activities

to Texas); Morales , 195 S.W.3d at

220–21 (holding minimum contacts may not be satisfied by merely engaging in

communications with Texas entity during performance of contract); see also Freudensprung v. Offshore Tech.

Servs., Inc. , 379 F.3d 327, 344 (5th Cir. 2004) (“[T]his court has

repeatedly held that the combination of mailing payments to the forum state,

engaging in communications related to the execution and performance of the

contract, and the existence of a contract between the nonresident defendant and

a resident of the forum are insufficient to establish the minimum contacts

necessary to support the exercise of specific personal jurisdiction over the

nonresident defendant.”); Holt Oil &

Gas Corp. v. Harvey , 801 F.2d 773, 778 (5th Cir. 1986) (holding that

defendant was not subject to specific jurisdiction where nonresident defendant

entered into contract with Texas resident, sent agreement and checks to Texas,

and engaged in extensive telephonic and written communications with plaintiff

in Texas).

iv. Profited by Availing Itself in Texas

Finally, the

Jacksons have failed to show that any financial benefit to Polycomp derived

from a constitutionally cognizable contact with Texas. See

Griego , 221 S.W.3d at 598 (citing Michiana ,

168 S.W.3d at 788 ). The Jacksons alleged

20. . . . Polycomp

profited by availing itself in Texas.

Polycomp made money off of the services it provided to the Jacksons and

other investors. Polycomp also

advertised and administered its services via the internet to Texas investors.

As we have

pointed out, the evidence does not show Polycomp’s actions resulted in a

constitutionally cognizable contact. See id.

The evidence shows the opposite.

The IRA Simplifier contract, for example, stipulates that any dispute

would be governed by the state of Polycomp’s domicile, which is

California. While a foreign

choice-of-law provision does not prevent Texas courts from also exercising

personal jurisdiction, the choice-of-law provision cannot be ignored. Id.

(citing Burger King, Corp. , 471 U.S.

at 482 , 105 S. Ct. at 2187 ). Although

the IRA Simplifier contract does not require that disputes be litigated in

California, this choice-of-law provision, when combined with the fact that the

evidence shows the Jacksons initiated contact with Polycomp, which rendered all

of its services within California, demonstrates that Polycomp never anticipated

Texas jurisdiction. See id. The allegations and

evidence fail to show a minimum contact with Texas. We, therefore, conclude the Jacksons cannot

show Polycomp financially benefited from a cognizable contact with Texas.

d. Conclusion of Minimum Contacts

Analysis

Because

the Jacksons are unable to show through their allegations and evidence that

Polycomp purposely availed itself of the privilege of conducting activities in

Texas, they are unable to meet their burden of

proof to show Polycomp had the minimum contacts in Texas

constitutionally necessary for Texas to exercise specific jurisdiction over

Polycomp. We hold that Polycomp’s

actions do not constitute the “purposeful availment” required to exercise

specific jurisdiction. See id. ; see also Meader v. IRA Res., Inc. , 178 S.W.3d 338, 345, 349 (Tex.

App.—Houston [14th Dist.] 2005, no pet.) (holding that appellee’s contacts,

which included accepting $50 account-initiation fee, opening appellant’s

self-directed IRA, and mailing appellant periodic account statements, were

constitutionally insufficient contacts to meet minimum contacts test).

Having determined that the Jacksons are unable to show Polycomp

has minimum contacts with Texas sufficient to support specific jurisdiction, we

do not need to determine whether an assertion of jurisdiction over Polycomp

comports with “traditional notions of fair play and substantial justice.” See Anchia v. DaimlerChrysler AG , 230

S.W.3d 493, 503 (Tex. App.—Dallas 2007, pet. denied).

We sustain Polycomp’s first issue.

Findings of Fact and Invalid

Affidavit

Regarding

Polycomp’s second issue that challenges the trial court’s refusal to issue

findings of fact and conclusions of law, we do not reach this issue because

Polycomp has been able to successfully present its appeal without those

findings. See, e.g. , White v.

Harris-White , No. 01-07-00521-CV, 2009 WL 1493015 , at *7 (Tex. App.—Houston

[1st Dist.] May 28, 2009, pet. denied) (mem. op., not designated for

publication) (holding trial court’s failure to make requested findings of fact

and conclusions of law harmless because appellant was able to present his case

on appeal) ; see also Pelican State Physical Therapy,

L.P. v. Bratton , No. 01-06-00199-CV, 2007 WL 2833303 , at *4 (Tex.

App.—Houston [1st Dist.] Sept. 27, 2007, no pet.) (mem. op., not designated for

publication) (noting that granting of special appearance is ruling for which

findings of fact and conclusions of law are allowed, but are not required).

Finally,

we do not reach Polycomp’s third issue regarding Gibson’s affidavit. Assuming that Polycomp properly preserved

error and that the affidavit was valid, Polycomp would still prevail because

the affidavit provides no additional evidence that would allow the Jacksons to

meet their burden of proof regarding Polycomp’s contact with Texas.

Conclusion

We reverse

the order of the trial court and render an order granting Polycomp’s special

appearance.

Elsa

Alcala

Justice

Panel consists of

Chief Justice Radack, and Justices Alcala and Higley.