in Re Patrick W. Murray, Jr.

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-09-00052-CV

NO. 09-09-00127-CV

____________________

PATRICK W. MURRAY, JR., Appellant

V.

EPIC ENERGY RESOURCES, INC., Appellee

and

IN RE PATRICK W. MURRAY, JR.

On Appeal from the 9th District Court

Montgomery County, Texas

Trial Cause No. 08-12-11975-CV

and

Original Proceeding

OPINION

Appellant Patrick W. Murray, Jr. filed an interlocutory appeal from the trial court's

orders denying his special appearance, temporarily enjoining him, denying his motion to

compel arbitration, and abating a pending arbitration between Murray and his former

employer, appellee Epic Energy Resources, Inc. ("Epic"). Murray also filed a petition for

writ of mandamus, in which he also argues that the trial court abused its discretion by

denying his motion to compel arbitration, by abating the pending arbitration, and "not

ordering the parties[] to arbitrate the issues which clearly fall within the arbitration

provision." We affirm the trial court's order denying Murray's special appearance, reverse

the trial court's temporary injunction order, and deny the petition for writ of mandamus.

Background

Murray entered into an employment agreement with Epic (1) , a company located in The

Woodlands, Texas. (2) The agreement provided that Epic could terminate Murray immediately

for good cause, "without any further liability to" Murray. According to the terms of the

agreement, if Epic terminated Murray's employment without good cause, Murray would

receive severance pay from Epic.

The agreement also stated that Epic would provide confidential information, and

Murray agreed that both during and after his employment with Epic, he would "not directly

or indirectly disclose any [c]onfidential [i]nformation[.]" The agreement expansively

defined "[c]onfidential [i]nformation" as:

information pertaining to, but not limited to: customer lists, bid policies and

practices, pricing information, financial and other data, contract information,

employee lists, manuals, documentation, forms, contracts, agreements,

literature, sources of supply, specifications, techniques, engineering, training

methods, procedures, systems, data, computer software programs, source

codes, hardware development, plans, processes, inventions, discoveries,

proprietary technology, methods, trademarks, trade secrets, know-how,

corporate books and records, other information concerning [Epic's] business

or assets or financial condition and evaluations and use or non-use of other

technical or business information not in the public domain and research

projects and customer-specific information disclosed to [Murray] by [Epic]

which is not generally known to the public.

In addition, the agreement contained a non-competition provision, which provided as

follows, in pertinent part:

[Murray] acknowledges and agrees that as an employee and representative of

[Epic], [Murray] will be responsible for building and maintaining business

relationships and goodwill with current and future customers, clients, and

prospects on a personal level. . . .

. . . .

In consideration for the valuable consideration described above, [Murray]

acknowledges and agrees that for a period commencing upon [his] termination

of employment from [Epic] for any reason, and ending on the earlier of: (I)

twenty-four (24) months following the termination of this Agreement; (ii) the

expiration of the Initial Term . . . or (iii) the expiration of the then-current

Renewal Term . . . (hereinafter, the " Lock Out Period "), [Murray] will not

solicit with any person, company, or business that was or is a client, Customer,

or prospect of [Epic] ("Restricted Customer"). A person or entity is

considered to be a Restricted Customer if [Epic] has taken steps with the direct

objective of obtaining business specifically from such person or entity after

[Epic] has made a formal proposal or presentation to such person or entity,

which may, but need not, include negotiations with such person or entity.

[Murray] further acknowledges and agrees that during the Lock Out Period,

[he] will not engage in the Same or a Similar Business as [Epic], including

working for any company or business as an agent, consultant, partner,

employee, officer, shareholder or independent contractor (but excluding any

client or Customer of [Epic]), in the Market Area . . . .

In addition, the agreement contained a provision which required that "[a]ny claim or

controversy arising out of or relating to this Agreement, or any breach of this Agreement,

shall be settled by final and binding arbitration in Montgomery County, Texas[.]" However,

the agreement also specified that "nothing in this Agreement shall be construed to require the

arbitration of any claim arising out of or relating to the Non-Disclosure , Non-Competition

or Non-Interference provisions set forth in this Agreement. These provisions shall be

enforceable by any Court of competent jurisdiction and shall not be subject to arbitration

under this section." Moreover, the agreement contained a choice of law provision, which

stated, "[t]he parties acknowledge and agree that the law of Texas will govern the validity,

interpretation, and effect of this Agreement and dispute[s] relating to, or arising out of, the

employment relationship between [Epic] and [Murray]."

On May 27, 2008, Epic terminated Murray for cause, and on July 24, 2008, Murray

filed a demand for arbitration. (3) In his demand for arbitration, Murray asserted that Epic had

provided no legitimate basis for his "for cause" termination, and he sought severance

benefits. The case was scheduled for arbitration on January 5, 2009. However, on December

30, 2008, Epic filed a lawsuit against Murray in Montgomery County, Texas. In its lawsuit,

Epic asserted claims against Murray for breach of the non-disclosure and non-competition

provisions of the employment agreement, as well as misappropriation of trade secrets, breach

of fiduciary duty, and tortious interference with existing and prospective contracts. Epic also

sought a temporary restraining order and a temporary injunction.

Murray filed a special appearance, in which he asserted that he was a resident of

Colorado and that the District Court in Montgomery County, Texas lacked personal

jurisdiction over him. In support of his special appearance, Murray attached his affidavit,

in which he averred, among other things, that he has never worked in Texas; Epic is a

Colorado corporation; he signed the employment agreement outside Texas; he worked for

Pearl only in Colorado; his paychecks were made from Pearl accounts located outside Texas;

and his employment benefits were administered from offices in Colorado. Murray also

averred in the affidavit that during his employment, he traveled to Texas to meet with clients

or for management meetings on four occasions. Murray maintained that it would be unduly

burdensome for him to litigate in Texas.

Epic filed a response to Murray's special appearance, in which it argued that the trial

court could exercise both general and specific jurisdiction over Murray. Epic also argued

that Murray had "waived his Special Appearance by initiating arbitration proceedings in

Montgomery County." Epic contended that the trial court had specific jurisdiction over

Murray because Murray did the following: negotiated the terms of his employment with

Epic's representatives in Texas; entered into an employment agreement with a Texas

resident; agreed that Texas law governs the Agreement; traveled to Texas several times

during his seven months of employment with Epic; regularly reported to and worked under

the direction of Epic's CEO and President, both of whom worked in Epic's main office in

Texas; and demanded arbitration in Texas. In addition, Epic asserted that Murray's contacts

with Texas were frequent, substantial, and "knowingly directed at and accomplished with a

Texas resident corporation for the purpose of Murray obtaining and maintaining employment

and/or benefits under the Agreement and the laws of the State of Texas." Epic also

contended that Murray was subject to the general jurisdiction of Texas.

As support for its response, Epic provided the affidavit of Rex Doyle, the CEO of

Epic. Doyle averred that since Epic's inception, Epic had maintained its principal place of

business in Texas. Doyle also averred that before and during Murray's employment, he was

in contact with Murray multiple times per day, and that he contacted Murray an average of

ten to fifteen times per week. In addition, Doyle averred that Murray reported to him during

Murray's employment with Epic. Epic also attached to its response the affidavit of John

Ippolito, the President of Epic. Ippolito averred in his affidavit that during Murray's

employment with Epic, Ippolito contacted Murray approximately once per workday. Ippolito

also stated that Murray regularly participated in Epic's management meetings and conference

calls, and that Murray was responsible for preparing and providing regular reports to both

Ippolito and Doyle.

The trial court denied Murray's special appearance and retained the case on its docket.

The trial court's order did not state the basis for its ruling, and the trial court did not file

findings of fact and conclusions of law. At the subsequent evidentiary hearing on Epic's

request for a temporary injunction, Ippolito testified that Epic acquired Pearl, a Colorado

engineering company, in December of 2007. Ippolito signed Epic's employment agreement

with Murray. According to Ippolito, before the parties executed the employment agreement,

they negotiated about various aspects of the agreement for "a number of weeks[.]" Ippolito

explained that some of the negotiation pertained to the non-competition and non-disclosure

provisions, and he opined that a violation of the non-competition agreement could diminish

Epic's effectiveness in the marketplace and hinder its success in developing additional

business. Ippolito testified that Epic's billings from Pearl had significantly decreased

between the third and fourth quarters of 2008. The trial court admitted into evidence a

statement of Epic's billings, as well as a spreadsheet of Epic's billable hours.

Ippolito testified that during Murray's employment with Epic, Ippolito had contact

with Murray almost daily by telephone or e-mail. According to Ippolito, Murray was

responsible for the profits and losses of Pearl, and he was responsible for Pearl's business

development, which consisted of contacting clients, putting proposals together, and following

up with clients "prior, during, or after projects were executed or completed." Ippolito

explained that Murray was also responsible for soliciting new business and expanding

business with current clients. Ippolito testified that during Murray's employment with Epic,

Murray had access to confidential information, including customer lists, pricing information,

financial data, and contract information. When asked whether "there's any way Mr. Murray

could work with drop-off without either directly or indirectly disclosing [confidential]

information," Ippolito responded that Murray could not do so. Ippolito also testified that he

believed it was impossible for Murray's employment with EnCana not to violate the non-competition provisions of the agreement.

Ippolito testified that while Murray was employed with Epic, Pearl provided

engineering and construction management services to EnCana, and Pearl had planned to

"leverage and expand" its business with EnCana. According to Ippolito, Pearl's business

with EnCana has contracted "a lot" since Murray's employment with EnCana, and Ippolito

opined that Murray was influencing EnCana because of Murray's dissatisfaction about his

termination. On cross-examination, Ippolito admitted that the decline in business from

EnCana could have been attributable to a downturn in the energy market. Ippolito testified

that Murray returned all of the confidential information in his possession within the time

period specified in the agreement, and Ippolito explained that such information becomes

dated, so it becomes less important with the passage of time.

At the conclusion of the hearing, the trial court granted Epic's request for a temporary

injunction. The trial judge stated,

As far as abating the arbitration, I'm not a fan of arbitration. Our Supreme

Court is not a fan of arbitration. If the Supreme Court gets their way in this

legislative session, I'll never have to send a case to arbitration again. And I'm

not going to do it right now. But it's abated, and I'm not changing my opinion

about that. This litigation is more important. This litigation will go forward[.]

In its order granting Epic's request for temporary injunction, the trial court found that Epic

had a valid claim against Murray, that there was evidence of imminent harm to Epic, and that

"if the Court does not issue the temporary injunction order, the arbitration may cause

irreparable injury to [Epic] if the arbitration is concluded before this case." The trial court

also found that Murray possessed information that was confidential and proprietary to Epic,

that Murray might injure Epic by disclosing or utilizing the information to Epic's detriment

and in violation of the parties' agreement, and that Epic had "no other adequate remedy at

law because the harm to [Epic] cannot be accurately calculated in monetary damages."

The trial court's order prohibited Murray from interfering with Epic's

business operations or EPIC's affiliates' business operations in any way,

including breaching the terms of the non-disclosure, non-competition and non-interference provisions of the Employment Agreement between the

parties . . ., and from communicating directly or indirectly with EPIC, EPIC's

employees, agents or representatives outside the presence of the EPIC's

counsel.

The order also prohibited Murray from utilizing, divulging, or disseminating Epic's

confidential information; "[c]ontacting, soliciting[,] or working for any person, company[,]

or business that was or is a client, customer[,] or prospect of . . . EPIC o[r] EPIC's affiliate,

except that Murray may continue his present employment with EnCana Oil and Gas until and

unless this Court orders otherwise in the future[;]" or engaging in the same or similar

business as Epic or its affiliates within the same market area. Furthermore, the court found

that the issues before it were not subject to arbitration, abated the pending arbitration

proceedings between Murray and Epic, and found that because the facts and issues in the

arbitration and the litigation were interrelated, the arbitration issues could not reasonably be

evaluated and decided until the litigation was resolved, and allowing the arbitration to

continue "would render an unjust, inefficient[,] and unappealable result." Murray then filed

an interlocutory appeal, as well as a petition for writ of mandamus. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014 (a)(4), (7) (Vernon 2008) (providing for interlocutory appeal of

the trial court's denial of special appearance and for granting of a temporary injunction).

Because the issues raised in the mandamus proceeding and the interlocutory appeal are

interrelated, we consider them together.

Issue One

In his first issue in the interlocutory appeal, Murray contends the trial court erred by

denying his special appearance. "Because the question of a court's exercise of personal

jurisdiction over a nonresident defendant is one of law, we review a trial court's

determination of a special appearance de novo ." Moki Mac River Expeditions v. Drugg , 221

S.W.3d 569, 574 (Tex. 2007) (citation omitted). When, as here, the trial court does not file

findings of fact and conclusions of law, we infer all facts necessary to support the judgment

and supported by the evidence. Id . (citing BMC Software Belgium, N.V. v. Marchand , 83

S.W.3d 789, 795 (Tex. 2002)).

A nonresident defendant who files a special appearance bears the burden of negating

all of the bases of personal jurisdiction the plaintiff has alleged. Am. Type Culture

Collection, Inc. v. Coleman , 83 S.W.3d 801, 807 (Tex. 2002). Texas courts may exercise in

personam jurisdiction over a nonresident defendant if (1) the Texas long-arm statute

authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction comports with

federal and state constitutional due-process guarantees. Moki Mac , 221 S.W.3d at 574 (citing

Schlobohm v. Schapiro , 784 S.W.2d 355, 356 (Tex. 1990)); see also Tex. Civ. Prac. & Rem.

Code Ann. § 17.042 (Vernon 2008) (long-arm statute). Under our long-arm statute, a

nonresident defendant does business in Texas if it "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[.]"

Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (1). "[T]he 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.'" Moki Mac , 221 S.W.3d at 575 (quoting Guardian Royal Exch.

Assurance, Ltd. v. English China Clays, P.L.C. , 815 S.W.2d 223, 226 (Tex. 1991)); see also

Am. Type Culture Collection, 83 S.W.3d at 806. A state may exercise personal jurisdiction

over a nonresident defendant if the defendant has established minimum contacts with the

forum state, and the exercise of jurisdiction comports with traditional notions of fair play and

substantial justice. Moki Mac , 221 S.W.3d at 575 (citation omitted). A nonresident

defendant's "contacts with the forum state may give rise to either general or specific

jurisdiction." Langston, Sweet & Freese, P.A. v. Ernster , 255 S.W.3d 402, 407 (Tex. App.--Beaumont 2008, pet. denied) (citing BMC Software , 83 S.W.3d at 795 ).

When a defendant's contacts with the forum state have been continuous and

systematic, general jurisdiction is established. BMC Software , 83 S.W.3d at 796 . When the

contacts are not continuous and systematic, specific jurisdiction may be established if the

defendant's alleged liability "aris[es] out of or [is] related to" an activity conducted within

the forum." Moki Mac , 221 S.W.3d at 576 (quoting Helicopteros Nacionales de Columbia,

S.A. v. Hall , 466 U.S. 408 , 414 n.8, 104 S.Ct. 1868 , 80 L.Ed.2d 404 (1984)). With respect

to specific jurisdiction, courts focus the minimum-contacts analysis on the relationship

among the defendant, the forum, and the litigation. Id . at 575-76.

For a Texas court to exercise specific jurisdiction, the nonresident defendant must

have made minimum contacts with Texas by purposefully availing himself of the privilege

of conducting business here, and his liability must have arisen from or be related to those

contacts. Id . at 576. "[T]here must be a substantial connection between those contacts and

the operative facts of the litigation." Id . at 585. A "purposeful availment" inquiry involves

three parts: (1) consideration of the defendant's contacts with the forum, but "not the

unilateral activity of another party or a third person[;]" (2) "the contacts relied upon must be

purposeful rather than random, fortuitous, or attenuated[;]" and (3) the defendant must seek

a benefit, advantage, or profit by availing itself of the jurisdiction. Id . at 575 (citations

omitted). "In contrast, a defendant may purposefully avoid a particular forum by structuring

its transactions in such a way as to neither profit from the forum's laws nor subject itself to

jurisdiction there." Id . (citing Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472 , 105 S.Ct.

2174 , 85 L.Ed.2d 528 (1985)).

Because it is dispositive, we address the question of specific jurisdiction. For the

Montgomery County District Court to properly exercise specific jurisdiction over Murray,

Murray must have made minimum contacts with Texas by purposefully availing himself of

the privilege of conducting activities here, and his liability must have arisen from or be

related to his contacts with Texas; that is, there must be a substantial relationship between

Murray's contacts and the operative facts of the litigation. See Moki Mac , 221 S.W.3d at

576, 585 .

We first address Epic's contention that Murray waived his special appearance by

demanding arbitration in Texas. As support for its waiver argument, Epic cites Harbison-Fischer Mfg. Co., Inc. v. Mohawk Data Sciences Corp. , 823 S.W.2d 679 (Tex. App.--Fort

Worth 1991), judgment set aside by agr. , 840 S.W.2d 383 (Tex. 1992). However, in

Harbison-Fischer , the nonresident defendant, Harbison-Fischer, participated in arbitration

proceedings after suit was filed; therefore, the court held that Harbison-Fischer had entered

"a general appearance in a special proceeding and to have waived any question of

jurisdiction." Id . at 684. Moreover, the Harbison-Fischer court relied on New York law in

reaching its decision. Id . In the case sub judice , Murray filed his demand for arbitration

before Epic filed suit against him; therefore, his pre-suit demand for arbitration did not

constitute an appearance in the suit later filed by Epic.

Murray entered into a contract for employment with Epic, a corporation that has its

principal place of business in Texas. The agreement provided that Murray was to receive a

salary, bonuses, and various benefits. Pursuant to the terms of the agreement, Murray was

responsible for building and maintaining Epic's business relationships. The contract

expressly provided that Texas law would govern any disputes arising from the agreement,

and a part of the contract, the arbitration provision, expressly contemplated that it would be

performed in Texas.

Although the choice of law provision alone is not dispositive, it is a significant factor

that supports Murray's deliberate affiliation with Texas and the foreseeability of litigation

in Texas concerning the agreement. See Burger King, 471 U.S. at 482 ; Michiana Easy Livin'

Country, Inc. v. Holten, 168 S.W.3d 777, 792 (Tex. 2005). In addition, with the exception

of disputes concerning the non-disclosure, non-competition, and non-interference provisions

of the agreement, the agreement provided that disputes must be arbitrated in Montgomery

County, Texas. Murray traveled to Texas on several occasions during his relatively brief

employment with Epic, and he admitted that he made the trips either to meet with clients or

to attend management meetings. In addition, Murray frequently communicated with and

reported to Epic's executives who were based in Texas. Under the circumstances, Murray

established minimum contacts with Texas, and the trial court's exercise of jurisdiction

comports with traditional notions of fair play and substantial justice. See Moki Mac , 221

S.W.3d at 575 . In addition, Murray purposefully availed himself of the privilege of

conducting business in Texas, and his alleged liability is related to his contacts with Texas.

See id . at 576. Murray had contacts with Texas, his contacts were purposeful, and he

received a benefit by availing himself of this jurisdiction. See id . at 575. The trial court did

not err by denying Murray's special appearance. Accordingly, we overrule issue one.

Issue Five

In his fifth issue, Murray contends, among other things, that the trial court erred by

finding that the pending arbitration proceeding would cause irreparable injury to Epic if it

was concluded before the litigation. An applicant for a temporary injunction must prove (1)

a cause of action against the defendant, (2) a probable right to the relief sought, and (3) a

probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84

S.W.3d 198, 204 (Tex. 2002). A trial court's order granting a temporary injunction must

state the reasons for its issuance and be specific in its terms. Tex. R. Civ. P. 683. If a

temporary injunction does not comply with the mandatory requirements of Rule 683, it is

void, and the appellate court should dissolve the temporary injunction. Qwest Commc'ns

Corp. v. AT&T Corp. , 24 S.W.3d 334, 337 (Tex. 2000); Indep. Cap. Mgmt., L.L.C. v. Collins ,

261 S.W.3d 792, 795 (Tex. App.--Dallas 2008, no pet.). Rule 683 requires a trial court to

set out in a temporary injunction order the reasons it believes the applicant will suffer an

imminent and irreparable injury if the court does not grant the injunction. State v. Cook

United, Inc. , 464 S.W.2d 105, 106 (Tex. 1971); see also Tex. R. Civ. P. 683. The trial

court's reasons must be specific and legally sufficient, and not mere conclusory statements.

Charter Med. Corp. v. Miller , 547 S.W.2d 77, 78 (Tex. Civ. App.--Dallas 1977, no writ).

We review an order granting a temporary injunction for abuse of discretion. Butnaru,

84 S.W.3d at 204 . As a reviewing court, we will not substitute our judgment for that of the

trial court unless the trial court's action was so arbitrary that it exceeded the bounds of

reasonable discretion. Id. The trial court abuses its discretion if its decision is not supported

by substantial and probative evidence. Envoy Med. Sys., L.L.C. v. State , 108 S.W.3d 333,

335 (Tex. App.--Austin 2003, no pet.). In addition, "[a] trial court abuses its discretion by

issuing a temporary injunction order that does not comply with the requirements of [R]ule

683." Collins , 261 S.W.3d at 795 (citation omitted).

In this case, the trial court found in its temporary injunction order that Epic would

suffer imminent, irreparable harm if the arbitration concluded before the litigation; however,

the arbitration involved only the issue of whether Epic lacked a basis for its "for cause"

termination and, as a result, owed severance benefits to Murray. The various claims Epic

asserted against Murray in its lawsuit all stem from Murray's alleged violations of the

agreement after Epic terminated his employment. The evidence adduced at the temporary

injunction hearing does not support the trial court's conclusion that Epic would be harmed

if the issue raised by Murray in the arbitration proceeding was determined before the

litigation concluded. See Envoy Med. Sys. , 108 S.W.3d at 335 . In addition, the language in

the temporary injunction regarding irreparable harm is not sufficiently specific to comply

with Rule 683. See Tex. R. Civ. P. 683; see also Charter Med. Corp ., 547 S.W.2d at 78 .

Therefore, we reverse the trial court's temporary injunction order and dissolve the temporary

injunction. Because the trial court also stayed the arbitration in its temporary injunction

order, which we have dissolved, we need not address Murray's remaining issues, and

Murray's petition for writ of mandamus is moot.

AFFIRMED IN PART; REVERSED IN PART; PETITION FOR WRIT OF

MANDAMUS DENIED.

STEVE McKEITHEN

Chief Justice

Submitted on May 28, 2009

Opinion Delivered November 5, 2009

Before McKeithen, C.J., Kreger and Horton, JJ.

CONCURRING AND DISSENTING OPINION

Because I would find no specific jurisdiction, I respectfully dissent in part and concur

in part to the majority's opinion. For a Texas court to exercise specific jurisdiction, (1) the

nonresident defendant must have made minimum contacts with Texas by purposefully

availing himself of the privilege of conducting business here, and (2) the nonresident

defendant's liability must have arisen from or be related to those contacts. Moki Mac River

Expeditions v. Drugg , 221 S.W.3d 569, 576 (Tex. 2007). In Moki Mac , the Texas Supreme

Court addressed the extent to which a claim must "arise from or relate to" the nonresident's

forum contacts to confer specific jurisdiction. The Court concluded that "for a nonresident

defendant's forum contacts to support an exercise of specific jurisdiction, there must be a

substantial connection between those contacts and the operative facts of the litigation." Id .

at 585. This analysis focuses on the relationship among the nonresident, the forum, and the

litigation. Pelican State Physical Therapy, L.P. v. Bratton , No. 01-06-00199-CV, 2007 WL

2833303 , at *6 (Tex. App.--Houston [1st Dist.] Sept. 27, 2007, no pet.) (mem. op.) (citing

Counter Intelligence, Inc. v. Calypso Waterjet Sys., Inc. , 216 S.W.3d 512, 517 (Tex. App.--Dallas 2007, pet. denied)). Specifically, the allegedly wrongful conduct must have been

purposefully directed at or have occurred in the forum and must have "a 'substantial

connection,' resulting in the alleged injuries," to the operative facts of the litigation. Id .

(citing Moki Mac , 221 S.W.3d at 584 ). Several Texas cases have found the "arises from or

is related to" prong of the specific jurisdiction analysis unsatisfied when the nonresident

defendant's conduct that allegedly resulted in liability did not relate to the defendant's

contacts with the forum state. See Gonzalez v. AAG Las Vegas, L.L.C. , No. 01-08-0037-CV,

2009 WL 1562934 , at *5 (Tex. App.--Houston [1st Dist.] June 4, 2009, no pet. h.) (reversing

trial court's order denying special appearance where, given the pleadings, the operative facts

regarding appellee's alleged breach of loyalty and usurpation claims concern defendant's acts

while working in Las Vegas, Nevada, not Texas); Pelican , 2007 WL 2833303 , at *8 (noting

that the trial court properly concluded it could not exercise personal jurisdiction where the

operative facts related to acts that occurred outside the forum state); Counter Intelligence,

Inc. , 216 S.W.3d at 520 (noting the trial court erred in concluding that Texas could exercise

specific jurisdiction over defendant where the alleged breach of contract arose out of Counter

Intelligence's conduct in Pennsylvania and Maryland, not Texas); Gustafson v. Provider

Healthnet Servs., Inc. , 118 S.W.3d 479, 484 (Tex. App.--Dallas 2003, no pet.) (noting that

none of the contacts relied upon to establish specific jurisdiction were related to defendant's

execution of the confidentiality agreement or his dissemination of confidential information,

both of which occurred in Michigan, not Texas); Lang v. Capital Res. Invs., I & II, LLC , 102

S.W.3d 861, 866 (Tex. App.--Dallas 2003, no pet.) (holding no specific jurisdiction where

alleged tortious conduct was not related to defendant's contacts with Texas).

Likewise, here Murray's contacts are insufficient to confer specific jurisdiction

because the acts alleged to create liability do not arise out of and are not related to Murray's

contacts with Texas. The facts alleged in support of Epic's claims for breach of contract,

trade secrets misappropriation, breach of fiduciary duty, and tortious interference with

existing contracts all relate to conduct that allegedly took place in Colorado.

In its petition, Epic alleges that Murray breached his employment agreement by

violating the non-disclosure and non-competition provisions. Specifically, Epic alleges that

Murray testified at his deposition that he was working as a consultant for EnCana Oil and

Gas and thus, breached his employment agreement with Epic by disclosing confidential

information obtained by Murray while working at Epic. Epic further alleges that Murray

misappropriated trade secrets by using and disclosing confidential, proprietary, and trade-secret information to EnCana. Murray averred that he was working in EnCana's Denver,

Colorado offices. Epic does not allege that any of the confidential, proprietary or trade-secret

information was either obtained by Murray in Texas or disclosed by Murray in Texas.

Epic further alleges that Murray breached his fiduciary duties to Epic by engaging in

self dealing; failing to treat employees equally; usurping corporate opportunities; and failing

to act with integrity, good faith, loyalty, and honesty during his employment with Epic.

None of the facts alleged in support of these allegations arise out of or are related to

Murray's alleged contacts with Texas. Rather, the allegations made in support of these

claims relate to actions by Murray while working in Colorado. Epic further alleges that

Murray tortiously interfered with Epic's existing and prospective contracts with EnCana.

Murray, however, was employed by EnCana in its Colorado office.

The United States Supreme Court's holding in Burger King Corp. v. Rudzewicz , 471

U.S. 462 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985), is distinguishable from the present case.

In Burger King, the franchise agreement required partial performance in the forum state;

specifically, the franchisee's payments under the contract were required to be made at Burger

King's place of business in Florida. Id . at 466, 468. Failure to make the required payments

formed a part of the basis of Burger King's suit against the franchisee. Id . at 468. Therefore,

the alleged breach of the agreement occurred, at least in part, in Florida. As noted by the

Pelican court, the nonresident defendant in Burger King was sued for some of the same

contractual obligations that constituted, or were closely related, to his asserted contacts with

Florida. Pelican , 2007 WL 2833303 , at *9. Here, in contrast, the specific contractual

obligations that Epic argues constitute Murray's contacts with Texas were not those that

Murray was alleged to have breached and the tortious acts that Epic alleges Murray

committed were alleged to have been committed in Colorado.

"When an employee lives and works outside of Texas, employment 'by a company

with its principal place of business in Texas is not sufficient to establish the requisite

minimum contacts with Texas.'" Rushmore Inv. Advisors, Inc. v. Frey , 231 S.W.3d 524, 530

(Tex. App.--Dallas 2007, no pet.) (quoting Gustafson , 118 S.W.3d at 483 ). After reviewing

Murray's contacts as a whole in light of the claims alleged, I would conclude Murray's

contacts with Texas are not sufficient to establish specific jurisdiction. See generally Moki

Mac , 221 S.W.3d at 585, 588 ; Gonzalez , 2009 WL 1562934 , at **5-6; Pelican , 2007 WL

2833303 , at **8-9; Gustafson , 118 S.W.3d at 483-84 . None of the contacts relied upon by

Epic to establish jurisdiction are connected to Murray's alleged breach of contract,

misappropriation of trade secrets, breach of fiduciary duty, or interference with existing or

prospective contracts, all of which occurred if at all, in Colorado. Instead, the contacts Epic

relies on "relate only superficially to [Murray's] general employment relationship" with Epic.

See Gustafson , 118 S.W.3d at 484 .

I disagree with the majority's opinion that a choice of forum in an arbitration

provision in a contract indicates that the contract is performable in part in the state of the

selected forum and should be considered a factor when determining jurisdiction. The very

purpose of an arbitration provision is to prevent subjecting the parties to litigation in the

event of a dispute. See Cayan v. Cayan , 38 S.W.3d 161, 166 (Tex. App.--Houston [14th

Dist.] 2000, pet. denied) ("[T]he purpose of alternative dispute measure is to keep parties out

of the courtroom."); see also Werline v. E. Tex. Salt Water Disposal Co. , 209 S.W.3d 888,

896 (Tex. App.--Texarkana 2006, pet. granted) ("The purpose of arbitration is to avoid the

formalities, delay, and expense of ordinary litigation.").

I would conclude the trial court did not have specific jurisdiction over Murray and

should have granted his special appearance. I would vacate the trial court's order granting

the temporary injunction for lack of jurisdiction and dissolve the trial court's order abating

the arbitration for that reason. However, I agree with the majority's holding that the

evidence adduced at the temporary injunction hearing does not support the trial court's

conclusion that Epic would be harmed if the issue raised by Murray in the arbitration

proceeding was determined before the litigation concluded and concur in that part of the

majority's opinion that dissolves the temporary injunction.

________________________________

CHARLES KREGER

Justice

Dissent Delivered

November 5, 2009

1. Before the parties executed the employment agreement, Murray was an employee

of Pearl Development Company ("Pearl"), a Colorado company with its principal office in

Colorado. Epic acquired Pearl in 2007, and Pearl became a wholly-owned subsidiary of

Epic. As part of its acquisition of Pearl, Epic asked certain Pearl employees, including

Murray, to execute employment agreements with Epic.

2. The parties agree that Epic is a Colorado corporation with its principal place of

business in Texas.

3. Murray subsequently began working for EnCana, a client of Epic.