Jerry Wilkerson v. RSL Funding, L.L.C.

Opinion issued August 11, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01001-CV

———————————

Jerry Wilkerson , Appellant

V.

RSL Funding,

L.L.C. , Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2009-76347

O P I N I O N

In this

interlocutory appeal, Jerry Wilkerson appeals the trial court’s order denying

his special appearance. Appellee RSL

Funding, L.L.C. sued Wilkerson for defamation, libel, and business

disparagement, all based upon statements made by Wilkerson on third-party

internet sites. In his sole issue,

Wilkerson contends the trial court erred in denying his special appearance and

objection to jurisdiction. We find that

the trial court lacked jurisdiction, and we therefore reverse and render a

judgment of dismissal without prejudice.

Background

California resident Jerry Wilkerson

lives with his daughter, Trisha, who won the California state lottery. RSL Funding , L.L.C. is a financial services business that solicited Trisha by

mail, offering to pay her a lump sum in exchange for a portion of her future

lottery payments. Although RSL is

headquartered in Houston, evidence submitted to the trial court suggests that

the company advertised it had locations in New York, Chicago, Philadelphia,

Washington, D.C., Los Angeles, West Palm Beach, and Atlanta.

Trisha assigned a portion of her future lottery payments to

RSL in exchange for a lump-sum payment.

Wilkerson had no direct financial interest in his daughter’s

transaction. However, Trisha had a bad

experience dealing with RSL, and Wilkerson decided to post a review on the

internet to express his dissatisfaction.

He searched the internet for RSL, and he testified that he believed he

posted his comments on RSL’s website.

Rather than finding RSL’s own website, however, Wilkerson had found

third-party web pages containing basic business information about RSL. These websites permitted users to post

reviews about their experiences with featured businesses, and Wilkerson posted

negative reviews about RSL on two such web pages.

One of these websites was maintained by the internet search

engine Yahoo! (http://www.yahoo.com).

The Yahoo! evidence presented by RSL included two exhibits: Exhibit C,

which is an undated screenshot of part of a Yahoo! internet page, and Exhibit

D, which is one page of a two-page printout from Yahoo! dated March 18, 2010. [1] It is apparent from the face of each document

that neither of them is a complete copy of the represented internet page.

The evidence produced by RSL showed

that at the time the documents were prepared, a Yahoo! page relating to RSL

included contact information for RSL’s Houston office, including the address, a

map showing its location, and a photograph of the building. A representative of RSL authenticated this evidence by

attesting that proffered documents “are true and correct copies of the

originals,” but the affidavit does not explain what “originals” are depicted or

how they were generated. Each of

Exhibits C and D state at the top of the page: “Some details about this

business have recently been edited by the community.” There appears to have been a hyperlink that

would have allowed the user to “View changes,” but neither party introduced evidence

of what those changes were, when they were made, or who made them. The

user reviews section of the Yahoo! listing reflected that Wilkerson wrote:

This is by far the worst

experience I have had in my 64 years of life, dealing with all of the lies by

Jim Kelly and the non returned promised phone calls by Jim and Mr. Sanchez from

accounting. RSL has lied repeatedly to

us and misled us and have caused numerous delays in this project that still has

yet to be funded. Our experience shows

that there is nothing rapid about Rapid Settlements and they are so

unprofessional. Because of all the

problems with Rapid and their violating the contract, we are in the process of

a law suit against them and if there is anyone else out there who have had

similar experiences with [R]apid, please join us in a class action law

suit. I hate having to rate them with

even 1 star as they do not deserve any.

By the way, RSL represents themselves as a large company. Try calling any of their offices, N.Y., L.A.,

Atlanta etc and you will find that there are no offices there, only phone

numbers that are transferred to the Houston Office. Very clever and manipulating of them. Just goes to show how they really conduct

business, smoke and mirrors.

After his original review, Wilkerson posted two more

comments. The first comment stated:

RSL is still playing games

as they think they have us over a barrel.

So dishonest and disrespectful, will not even return a phone call. But the kicker is RSL has put out so much

negative Karma into the air that when their time comes, it will return to them

10 fold in a negative manner. I just

hope they remember where it came from and change their ways to treat people and

clients fairly and professionally.

Wilkerson’s

second comment to his Yahoo! review stated:

Received our check today and

now we are able to find out why RSL was so arrogant and mean and delaying

everything. They did not have the

money. The check is no good NSF, non sufficient

funds. Guess their word is as good as

their check.

The Yelp website (http://www.yelp.com)

contained a similar page with information about RSL. The evidence produced by RSL showed that at

the time Yelp was accessed for purposes of opposing Wilkerson’s special

appearance, the accessed page included RSL’s Houston address and a map. [2] That page reflected that Wilkerson had posted

another review which stated: “This is the worst company I have ever dealt with

in my life. Nothing but lies and misinformation . . . .” Subsequently, Wilkerson posted a comment to

his own review, which stated:

Received the check today

from RSL and guess what, it appears their word is as good as their

check[.] NSF NON SUFFICIENT FUNDS. I can see why they treated us so badly and

were so rude and inconsiderate and kept delaying, because they don’t have the

money. What a joke they are.

There is no evidence that Wilkerson had anything to

do with creating these webpages or their content other than the reviews and

subsequent comments submitted by him.

Furthermore, he testified in a deposition that he did not know how to

target a specific geographic location, and that he did not know how to attach a

map or photograph to his internet posting.

RSL sued

Wilkerson, alleging defamation, libel, and business disparagement. Wilkerson filed a special appearance,

objecting to the trial court’s jurisdiction over him. He supported his special appearance with an

affidavit stating he is a resident of California, does not own any property in

Texas, has never owned any business in Texas, has only traveled through Texas

once, and did not specifically direct any opinion or statement of fact

concerning RSL to anyone in Texas.

RSL

responded by claiming both websites used by Wilkerson “use geographic location

as the key to their respective search options” and are “intended to help a

searcher find information in specific geographic areas.” Based on these factual allegations, RSL

contends that Wilkerson purposely directed his actions at Texas, and therefore

he is subject to the jurisdiction of a Texas court for purposes of a tort claim

based on those actions. The trial court overruled

the special appearance, and Wilkerson brought this interlocutory appeal to

challenge the ruling.

Legal Standards for Personal Jurisdiction

Whether a court has personal

jurisdiction over a defendant is a question of law that we review de novo. BMC

Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002); Glattly v. CMS Viron Corp. , 177 S.W.3d

438, 445 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The plaintiff bears the initial burden of

pleading jurisdictional facts sufficient to bring a nonresident defendant

within the provisions of the Texas long-arm statute. Kelly

v. Gen. Interior Constr., Inc. , 301 S.W.3d 653, 658 (Tex. 2010). To establish jurisdiction over a nonresident

defendant, the plaintiff must plead a “connection between the defendant[’s]

alleged wrongdoing and the forum state.”

Id. at 655 . In a tort case, the plaintiff must plead that

the defendant committed a tortious act in Texas. Id .

at 659.

A nonresident defendant challenging

the court’s exercise of personal jurisdiction through a special appearance

bears the burden of negating all grounds for personal jurisdiction alleged by

the plaintiff. See, e.g. , Moki

Mac River Expeditions v. Drugg , 221 S.W.3d 569, 574 (Tex. 2007).

The defendant can negate jurisdiction on either a factual or legal

basis. Kelly , 301 S.W.3d at 659 . To

negate personal jurisdiction on a factual basis, the defendant may produce

evidence showing that it has no contacts with Texas, which the plaintiff may

then counter with its own evidence. Id.

To negate jurisdiction on a legal basis, the defendant may establish

that, even taking the alleged jurisdictional facts as true, “the defendant’s

contacts with Texas fall short of purposeful availment [of the forum] . . .

or that traditional notions of fair play and substantial justice are offended

by the exercise of jurisdiction.” Id.

Once the nonresident defendant has

presented evidence to disprove the jurisdictional allegations, the plaintiff

must then respond with its own evidence, and it risks dismissal of its lawsuit

if it cannot present the trial court with evidence establishing personal

jurisdiction. See Kelly , 301 S.W.3d at 659 ; Assurances

Generales Banque Nationale v. Dhalla , 282 S.W.3d 688, 695 (Tex. App.—Dallas

2009, no pet.). We review the trial

court’s determination de novo. See Moki Mac , 221 S.W.3d at 574 . If findings of fact and conclusions of law

are not issued, we infer “all facts necessary to support the judgment and

supported by the evidence.” See id .

“The Due Process Clause protects an

individual’s liberty interest in not being subject to the binding judgments of

a forum with which he has established no meaningful ‘contacts, ties, or

relations.’” Burger King Corp. v. Rudzewicz , 471 U.S. 462 , 471–72, 105 S. Ct.

2174 , 2181–82 (1985) (quoting Int’l Shoe

Co. v. State of Wash., Office of Unemployment Comp. & Placement , 326

U.S. 310, 319 , 66 S. Ct. 154, 160 (1945)).

A Texas court’s exercise of personal jurisdiction over a nonresident

defendant who allegedly committed a tort in the state is therefore limited by

constitutional due process requirements. [3] Unless the defendant consents to appear,

jurisdiction may be exercised over a nonresident defendant only when the

defendant has purposefully established such minimum contacts with the forum

state that the defendant could reasonably anticipate being sued there. See,

e.g. , Burger King , 471 U.S. at

475–76, 105 S. Ct. at 2183–84; World-Wide

Volkswagen Corp. v. Woodson , 444 U.S. 286, 297 , 100 S. Ct. 559, 567 (1980). The exercise of personal jurisdiction must

also comport with traditional notions of fair play and substantial

justice. See, e.g. , Burger King ,

471 U.S. at 475–76, 105 S. Ct. at 2183–84.

A nonresident defendant establishes

minimum contacts with Texas by purposefully availing himself of the privileges

of conducting activities in the state, thus invoking benefits and protections

of its laws. See, e.g. , Hanson v. Denckla ,

357 U.S. 235, 253 , 78 S. Ct. 1228, 1240 (1958); Michiana Easy Livin’ Country, Inc. v. Holten , 168 S.W.3d 777, 784

(Tex. 2005). We consider only the

defendant’s own contacts with the forum state, not the unilateral activities of

third parties. Burger King , 471 U.S. at 475 , 105 S. Ct. 2174 ; Michiana , 168 S.W.3d at 784 ; Kelly ,

301 S.W.3d at 660 . The contacts relied

upon must be purposeful, and not random, isolated, or fortuitous. Burger

King , 471 U.S. at 475 , 105 S. Ct. 2174 ; Keeton

v. Hustler Magazine, Inc. , 465 U.S. 770, 774 , 104 S.Ct. 1473 (1984); Michiana , 168 S.W.3d at 785 . When undertaking a minimum-contacts analysis,

we consider the quality and nature of the defendant’s contacts, rather than

their number. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C. ,

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

The defendant’s activities, whether they consist of acts inside or

outside of Texas, must justify a conclusion that the defendant could reasonably

anticipate being called into a Texas court.

See World-Wide Volkswagen , 444

U.S. at 287 , 100 S. Ct. at 562 ; Am. Type

Culture Collection, Inc. v. Coleman , 83 S.W.3d 801, 806 (Tex. 2002). Although it is not determinative,

foreseeability is an important consideration in deciding whether the

nonresident has purposefully established minimum contacts with the forum

state. Burger King , 471 U.S. at 474 , 105 S. Ct. at 2183 .

The minimum contacts analysis is

further divided into specific jurisdiction based on contacts giving rise to a

claim and general jurisdiction based solely on the extent of the defendant’s

contacts with the forum state. BMC Software , 83 S.W.3d at 795–96. RSL does not argue that the trial court could

exercise general jurisdiction over Wilkerson.

We therefore confine our analysis to specific jurisdiction.

Analysis

On appeal, Wilkerson contends that

there is legally insufficient evidence that he purposefully availed himself of

the privileges of conducting activities in Texas. In particular, he contends that there is no

evidence he directed his comments about RSL toward Texas and that any contact

his comments did have with Texas was merely fortuitous. Accordingly, Wilkerson argues that RSL failed

to satisfy its burden to present evidence tending to establish

jurisdiction. Though he characterizes it

as a legal challenge, his dispute is a factual one because he countered RSL’s

factual allegation that the internet postings were directed at Texas with

evidence that they were not. See Kelly ,

301 S.W.3d at 659 . Because Wilkerson

negated RSL’s jurisdictional claims, RSL was required to respond with evidence

affirming its allegations. Id.

We therefore must determine whether RSL adequately responded with

evidence to establish jurisdiction, inferring any facts necessary to support

jurisdiction that are supported by that evidence. See

Moki Mac , 221 S.W.3d at 574 .

RSL, in response, argues that the

evidence demonstrates that Wilkerson directed his statements towards

Texas. It relies on its factual

allegations that Wilkerson’s statements were published “on internet interactive

websites which were specifically aimed at a Texas limited liability company,

RSL, located in the Galleria area of Houston, Texas, and its employee, a Texas

resident,” and that Wilkerson posted his comments to “www.local.yahoo.com” and “www.yelp.com,”

sites alleged by RSL to “use geographic location as the key to their respective

search options.” RSL alleges that

Wilkerson’s “stated motivation . . . was that he was ‘trying to

drum up a class action lawsuit’” and that Wilkerson’s statements were “part of

a calculated scheme to destroy RSL’s business.”

It also argues that Wilkerson’s internet comments “constitute a

substantial presence in the State of Texas,” and that jurisdiction should be

exercised over him “based on the effects of his California conduct in Texas.”

I.

Inapplicability

of “sliding scale” standard to individual website user

The dispute presents a question of

when personal jurisdiction may be exercised over a defendant based solely upon

his use of the internet. Both Wilkerson

and RSL suggest that we should use the “sliding scale” analysis often used to

evaluate whether jurisdiction may be exercised over a nonresident defendant

based on the relative interactivity of its website. [4] However, to the extent that the interactive

features of Yahoo! and Yelp are the creations of the owners and operators of

those websites, the interactive nature of a large - scale ubiquitous internet presence cannot be fully imputed to an

individual user such as Wilkerson for the purpose of determining whether he established

minimum contacts with Texas sufficient to justify exercising jurisdiction over

him. Most Texas cases which apply the

sliding-scale jurisdictional analysis to claims based upon internet usage arise

from a nonresident defendant’s ownership and operation of its own website. [5] The analysis of a website’s interactivity is

not as useful when determining whether due process permits jurisdiction to be

exercised over a third-party individual user of the website. [6]

While the websites at issue in this

case may themselves be considered interactive, a third party’s use of the

website may, in effect, be a “passive” usage of the internet, i.e. an act of simply

posting information which is accessible anywhere the internet is

accessible. Such passive usages of the

internet do not support jurisdiction over a non-interactive website under a

sliding-scale analysis. [7] Likewise, because the contacts supporting the

exercise of jurisdiction must be purposeful, and not random, isolated, or

fortuitous, jurisdiction nor should not be based solely upon the passive, non-targeted

postings of an individual website user. See, e.g. , Burger King , 471 U.S. at 475 , 105 S. Ct. 2174 ; Michiana , 168 S.W.3d at 784 . To conclude otherwise and uncritically

evaluate an individual website user’s contacts with the forum state based on

interactive website features implemented by third-party website operators would

also violate the principle that the relevant contacts are those of the

defendant himself, and not the unilateral acts of third parties. See,

e.g. , Burger King , 471 U.S. at 475 ,

105 S. Ct. 2174 ; Michiana , 168 S.W.3d

at 785 .

In this case, Wilkerson did not own

Yahoo! or Yelp, and the record contains no evidence that he exercised any

control over the content of these websites other than his contribution of

reviews and comments. Thus for purposes of analyzing personal

jurisdiction over an individual in a case arising from his internet activity , we decline to reflexively apply the

sliding-scale analysis of the interactivity of a commercial internet website to

determine jurisdiction over the individual website user. Instead, we apply the constitutional standard

of purposeful availment. See Hanson ,

357 U.S. at 253 , 78 S. Ct. at 1240 ; Michiana ,

168 S.W.3d at 784 .

II.

Application

of purposeful availment standard

Our conclusion that the full range

of a website’s interactive features should not be automatically imputed to an

individual user when evaluating his minimum contacts with the forum does not

preclude a showing that the individual user intentionally used a website’s

features to target a particular location under circumstances constituting

purposeful availment. Cf . Keeton , 465 U.S. at 781 , 104 S. Ct. at 1481 (1984) (state

properly exercised personal jurisdiction over libel claim against nonresident

magazine publisher that “continuously and deliberately exploited” forum state’s

market); Calder v. Jones , 465 U.S.

783 , 789–90, 104 S. Ct. 1482 , 1486–87 (1984) (state properly exercised personal

jurisdiction over libel claim against nonresident journalists based on effects

of publication in forum state when journalists were aware that forum state was

location of publication’s largest circulation).

Accordingly we must evaluate RSL’s contention that Wilkerson

specifically directed his negative postings on Yahoo! and Yelp toward Texas.

A. Website characteristics

RSL argues that Wilkerson

purposefully availed himself of the benefits and protections of the laws of

Texas by publishing his comments on websites which were “specifically aimed at

a Texas limited liability company, RSL, located in the Galleria area of

Houston, Texas, and its employee, a Texas resident,” and that Wilkerson posted

his comments to sites alleged by RSL to “use geographic location as the key to

their respective search options.”

RSL produced no evidence to support its allegation that Wilkerson

used “www.local.yahoo.com” to

publish his comments in some fashion specifically associated with Houston. There is only evidence that RSL printed out a

Yahoo! webpage that included a “local” reference in its web address (i.e. its

uniform resource locator, or URL). The

evidence that Wilkerson’s comment was associated with Houston-related content

on Yahoo! is not evidence that Wilkerson was responsible for that association,

particularly if RSL or its Houston-based attorneys prepared the evidence of

what appears on Yahoo! from their Houston-located computers. [8] Nevertheless, based on the “local” URL

reflected in the printout submitted to the trial court, RSL argues without

record citations or any competent evidentiary support:

The “local” name used by local.yahoo.com serves as a key clue on what

is intended with the information provided.

That is, it is intended to help you find information in specific

geographic areas. More likely than not

it will be residents of the Houston area in particular, or Texas residents in

general, that will search RSL Funding located in Houston Texas.

Even

if RSL’s assertion in this regard is true, the geography related to the

intentions of the website operator or a hypothetical web searcher, without

more, is not relevant to our analysis of whether Wilkerson had the minimum

contacts with Texas necessary to support jurisdiction in this case. [9]

While the evidence presented by RSL

shows that Yahoo! and Yelp maintain webpages containing business listings for

the Houston office of RSL, that evidence does not demonstrate that the websites

themselves “aim at” any entity or person in Texas, or that they otherwise

target Texas residents. And we may not

consider the actions of Yahoo! and Yelp to use geographic location to

facilitate searches performed by other users unrelated to this dispute. The unilateral activities of the website

operators cannot be the basis for exercising personal jurisdiction over an

individual user. See, e.g. , Burger King ,

471 U.S. at 475 , 105 S. Ct. 2174 ; Michiana ,

168 S.W.3d at 784 . Likewise, the

unilateral activities of internet users who might use the search functions of

Yahoo! and Yelp to find business information in a particular geographic

location cannot be the basis for exercising jurisdiction over Wilkerson in this

case.

In any case, even if the evidence

showed that Yahoo! and Yelp targeted Texas, standing alone that evidence would

not establish that Wilkerson knew or should known have his comments posted on

Yahoo! and Yelp were targeting Texas or any other specific geographic location. [10] Without evidence of the defendant’s knowledge

or reasons to know of the website’s activities to target a specific geographic

area, imputing those activities to the defendant would be the same as

subjecting him to jurisdiction based the unilateral actions of others.

RSL presented no evidence about how

Wilkerson posted his comments in a way directed at Texas. It merely created some printouts of the web

pages at issue and submitted them to the trial court without any demonstration

of the origins of the depicted information that it now relies upon to claim

that Wilkerson was targeting Texas. [11] The only competent evidence on that subject

was Wilkerson’s own deposition testimony that he conducted an internet search

and posted comments on what he thought were websites operated by RSL. Wilkerson specifically denied targeting

Texas; RSL produced no evidence tending to show that is not true. The evidence therefore does not support RSL’s

factual allegation, factually refuted by Wilkerson, that Wilkerson deliberately

used a website oriented towards, aiming at, or otherwise specifically targeting

Texas.

B.

Website content

RSL

argues that because the websites, in addition to Wilkerson’s comments,

contained a photograph of RSL’s building, a Houston address, and a map showing

RSL’s location in Houston, Wilkerson purposefully directed his conduct at the

forum of Texas. RSL’s brief goes so far

as to state that “Wilkerson even provided a map and a photo of RSL’s Galleria

location in his posting.” But that is

not what the evidence submitted by RSL shows.

Once again, the only evidence

produced by RSL to support its factual allegations are its own printouts from

the Yahoo! and Yelp webpages. Those

printouts are evidence of the substance of Wilkerson’s comments, the authorship

of which he does not dispute. But they

are not evidence that Wilkerson supplied any information about RSL other than

the text of his comments, such as an address, a map, a photograph, or any other

content which websites such as Yahoo! and Yelp routinely compile on their own

and combine with user-submitted content. [12] For this reason, the evidence submitted by RSL would

not support a conclusion that the photograph, Houston address, or map were

directly caused by Wilkerson to appear on the webpages, or that Wilkerson even

deliberately associated his comments with those elements of the webpages. Indeed,

in his deposition Wilkerson disclaimed doing any such thing, and that is the

only competent evidence on the subject that was presented to the trial

court.

Likewise,

the aspects of RSL’s evidence reflecting other localized Houston content is not

evidence that Wilkerson deliberately associated his comments with a

Houston-oriented aspect of either Yahoo! or Yelp. Again, Wilkerson denied doing that, and he

also specifically denied knowledge of how to do any such thing. The fact that Houston-based RSL represented

by Houston-based attorneys obtained Houston-oriented content when accessing

Yahoo! and Yelp is no evidence of what Wilkerson saw, did, or intended when he

posted his comments. The present-day

reality of the ever-evolving internet is that the content seen by any

particular user is often customized by the website based on the geographic

location of the person viewing the website, or the geographic location of the

same person’s computer servers, or other characteristics associated with the

person visiting the webpage.

Jurisdiction therefore may not be exercised over a nonresident user

based on his use of a website based upon the mere evidence that the website incorporated

Texas-related content of an unknown origin, particularly when that evidence

only shows the website’s content as viewed by a different user at a later time

in a presumably different location.

C. Substance of internet communications

In a personal jurisdiction

analysis, only the nonresident defendant’s own purposeful contacts with Texas

are considered. See, e.g. , Burger King , 471 U.S. at 475 , 105 S. Ct. at 2183–84; Michiana , 168 S.W.3d at 785 . Thus,

because RSL is not relying upon any other alleged contacts between Wilkerson

and the state of Texas, our jurisdictional inquiry is limited to whether

Wilkerson’s internet commentary alone was sufficient to justify a Texas court

exercising specific jurisdiction over him.

RSL

has presented no evidence that Wilkerson’s comments were purposefully directed

at Texas, as would be required for him to be subject to suit in Texas. [13] The evidence merely shows that he performed

an internet search for RSL, and that he posted reviews and comments on two

different websites where he found an opportunity to do so. Wilkerson

made only one express reference to RSL’s presence in Texas, stating in his

Yahoo! review that phone calls made to offices other than RSL’s Houston office

are transferred to Houston. Although he

mentioned two employees by name, he did not identify where those employees

work. [14] RSL’s evidence shows nothing to the

contrary. RSL produced no competent

evidence about the circumstances of Wilkerson’s postings obtained from Yahoo!

or Yelp or from any other source to support their contention that Wilkerson

specifically targeted Texas with his comments, and Wilkerson’s testimony about

his actions directly contradicts RSL’s allegation.

RSL also argues that Wilkerson’s

purposeful availment of Texas is demonstrated by his solicitation of Texas

residents to join in a lawsuit against RSL.

However, that comment did not mention where the alleged lawsuit was

filed or intended to be filed, nor did it indicate in any way that Texas

residents were being recruited as opposed to any other disgruntled client of

RSL. [15] The reviews and subsequent comments suggest

that Wilkerson was addressing a global internet audience of potential RSL

clients, not exclusively or primarily Texas residents. Moreover, nothing in the record shows that

Wilkerson sought any benefit, advantage, or profit by availing himself of

Texas, as is required for personal jurisdiction. See

Michiana , 168 S.W.3d at 785 . He was

not part of the transaction between RSL and his daughter, nor did he have any

direct financial interest in it.

D. Effect of internet communications

Finally, RSL suggests that

Wilkerson’s postings constitute a substantial presence in Texas, the effect of

which is sufficient to justify exercising jurisdiction over him. In support of this argument that jurisdiction is proper based

on the Texas effects of Wilkerson’s comments, RSL asserts: “Those likely to be

searching for RSL (or for relevant keywords) will be looking for such in

Houston, Texas. Regardless, the search

results will come up as being categorized in Houston, Texas.”

Apart from the consideration that

we cannot consider the unilateral acts of others in conducting our analysis, see, e.g. , Burger King , 471 U.S. at 475 , 105 S. Ct. at 2183–84, we note also

that jurisdiction may not be based solely on the effects or consequences in the

forum state resulting from allegedly tortious conduct. See Michiana ,

168 S.W.3d at 789 (citing National Indus.

Sand Ass’n v. Gibson , 897 S.W.2d 769, 773 (Tex. 1995)). “Instead, it is ‘the defendant’s conduct and

connection with the forum’ that are critical.”

Id . (quoting Burger King , 471 U.S. at 474 , 105 S. Ct.

at 2183 ). Thus, in Calder v. Jones , the United States Supreme Court justified the

exercise of jurisdiction over nonresident reporters in a libel case based upon

the extent of the defendants’ activities (knowingly reporting for a publication

which sold over 600,000 weekly copies in the forum state) and not merely the

residence of the plaintiff. See 465 U.S. 783 , 785 n.2, 104 S. Ct.

1482 ; see also Michiana , 168 S.W.3d at

789 .

In this case, Wilkerson has no

record of continuously and knowingly directing internet commentary toward an

identifiable Texas audience, such as would be necessary to analogize the

circumstances to Calder . We therefore conclude that the comments’

alleged effects in Texas are inadequate to justify exercising jurisdiction in

the absence of other evidence demonstrating Wilkerson’s minimum contacts with

the forum.

* * *

The evidence attached to Wilkerson’s

special appearance negated all grounds for personal jurisdiction alleged by

RSL. That evidence showed that

Wilkerson’s online postings, which were made available to anyone interested in

them, were not specifically directed towards Texas, and therefore do not

support exercising jurisdiction over this case. [16] The burden then shifted to RSL to present

evidence that personal jurisdiction properly could be exercised over Wilkerson. See

Kelly , 301 S.W.3d at 659 . As

explained above, none of the evidence produced by RSL was factually sufficient

to satisfy its burden. On the record before us we have no

basis to conclude that RSL’s evidence of the websites’ content is evidence of what

Wilkerson saw when he posted his comments. Given

that there is no evidence that Wilkerson exercised control over or intended what

was included on Yahoo! and Yelp other than his comments, there is no factual

basis upon which the inclusion of localized content could be imputed to him. Accordingly, considering the overall quality

and nature of Wilkerson’s contacts as demonstrated by the evidence presented,

we conclude the trial court erred in denying Wilkerson’s special appearance.

Conclusion

We reverse

the judgment of the trial court and render a judgment of dismissal without

prejudice for lack of personal jurisdiction.

Michael

Massengale

Justice

Panel consists of Justices Keyes, Sharp, and

Massengale.

Justice Keyes, dissenting.

[1] The last

of Wilkerson’s Yahoo! postings was dated November 20, 2009. RSL’s original petition alleging defamation,

libel, and business disparagement by both of the Wilkersons was filed on

November 25, 2009.

[2] Although

presented as two separate one-page documents labeled Exhibits E and F, it

appears from the header and footer of the two pages that RSL’s evidence from

Yelp consists of one two-page printout generated on May 18, 2010 at 3:15 pm — approximately six months after Wilkerson’s two Yelp

postings dated November 16 and 20, 2009.

As with the Yahoo! evidence, RSL provided no evidence about the

circumstances of the creation of the documents.

[3] Pursuant to the long-arm statute, Texas

courts can exercise personal jurisdiction over a nonresident defendant that

“does business” in Texas. Tex. Civ. Prac. & Rem. Code Ann. §

17.042 (West 2008); BMC Software Belg.,

N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002). Among other actions identified by the

long-arm statute, a nonresident is considered to be “doing business” in Texas

if he “commits a tort in whole or in part in this state.” Tex.

Civ. Prac. & Rem. Code Ann. § 17.042(2); Moki Mac , 221 S.W.3d at 574 .

[4] For purposes of establishing personal

jurisdiction in cases involving internet usage, several Texas courts have used

the “sliding scale” analysis first utilized in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. , 952 F. Supp. 1119

(W.D. Pa. 1997). See, e.g. , Choice Auto

Brokers, Inc. v. Dawson , 274 S.W.3d 172 , 177–78 (Tex. App.—Houston [1st

Dist.] 2008, no pet.); Karstetter v. Voss ,

184 S.W.3d 396, 404 (Tex. App.—Dallas 2006, no pet.); Experimental Aircraft Ass’n, Inc. v. Doctor , 76 S.W.3d 496, 507

(Tex. App.—Houston [14th Dist.] 2002, no pet.).

The court in Zippo observed

that “the likelihood that personal jurisdiction can be constitutionally

exercised is directly proportionate to the nature and quality of commercial

activity that an entity conducts over the Internet.” Zippo ,

952 F. Supp. at 1124 . At one end of the

range of activity, personal jurisdiction may be exercised over a nonresident

defendant “clearly does business” in the forum over the internet, such as by

entering into a contract with a forum resident involving the knowing and

repeated exchange of data over the internet.

Id . At the opposite end of the spectrum, personal

jurisdiction may not be exercised over a nonresident based solely upon

maintenance of a “passive” website when it has simply posted information on a

website which is accessible to users in the forum. Id . The “middle ground” in the Zippo sliding-scale analysis is occupied

by “interactive” websites permitting users to exchange information with the

host computer. Id . The exercise of personal

jurisdiction over a nonresident defendant operating such a website depends upon

“the level of interactivity and commercial nature of the exchange of

information that occurs” on the site. Id .

[5] See,

e.g. , Choice Auto Brokers , 274 S.W.3d at 178 ; Michel v. Rocket Eng’g Corp. , 45 S.W.3d 658 (Tex. App.—Fort Worth

2001, no pet.); Experimental Aircraft

Ass’n , 76 S.W.3d at 507 ; see also

Mink v. AAAA Dev. LLC , 190 F.3d 333 ,

336–37 (5th Cir. 1999) (applying Texas law).

But see Karstetter , 184 S.W.3d at 405 (applying sliding-scale standard to

evaluate eBay internet auction site when claim was asserted against seller

utilizing site).

[6] See, e.g. , McGuire v. Lavoie , No. Civ.A. 3:03-CV-0161-BH, 2003 WL 23174753 ,

at *3 (N.D. Tex. Aug, 19, 2003) (“Because the majority of cases applying the

[sliding scale] test involve a defendant’s conduct over its own website, its

application to an internet auction site is questionable.”); Action Tapes, Inc. v. Weaver , No. Civ.

3:05-CV-1693-H, 2005 WL 3199706 , at *2 (N.D. Tex. Nov. 23, 2005) (“The sellers

and buyers who connect through eBay cannot be said themselves to control eBay’s

degree of commercial interactivity. . . .

Accordingly, the ‘sliding scale’ standard is not applicable in this

case.”); Attaway v. Omega , 903 N.E.2d

73, 78 (Ind. Ct. App. 2009) (“[The sliding scale] mode of analysis makes little sense in the eBay context since eBay, and not

the user, controls the interactivity and marketing efforts of the website.”); Foley v. Yacht Mgmt. Grp., Inc. , No. 08

C 7254, 2009 WL 2020776 , at *3 n.1 (N.D. Ill. July 9, 2009) (declining to apply

sliding-scale approach and instead applying traditional analysis focusing on

purposeful availment of forum).

[7] See, e.g. , Zippo , 952 F. Supp. at 1124 ; Choice Auto Brokers , 274 S.W.3d at 177–78.

[8] See generally Kevin F. King, Personal Jurisdiction, Internet Commerce,

and Privacy: The Pervasive Legal Consequences of Modern Geolocation

Technologies , 21 Alb. L.J. Sci.

& Tech. 61 , 73–75 (2011) (explaining how websites utilize

geolocation tools to “modify generic content . . . to highlight aspects that

are most relevant to a user’s specific location”).

[9] In a

somewhat similar vein, the dissent repeatedly and emphatically refers to Yahoo!

and Yelp as “local websites,” as if Wilkerson’s postings appeared in the

internet equivalent of a local newspaper.

The evidence does not support that characterization. Even to the extent we might take judicial

notice that Yahoo! and Yelp organize some of their content to associate it with

a particular locality, no evidence was produced in the trial court that

Wilkerson associated his comments with Houston-specific content on those

websites or that he deliberately used Yahoo! or Yelp anticipating that those

websites would do it for him. Indeed the

only evidence on this subject, Wilkerson’s testimony, was to the contrary.

[10] Indeed, the substance of Wilkerson’s

communication indicates that he was addressing a more generalized and

nontargeted audience of RSL’s past, current, or future clients who believed

based on RSL’s advertising that it had offices in places other than

Houston. As noted above, he wrote

on Yahoo!: “ Try calling any of their

offices, N.Y., L.A., Atlanta etc and you will find that there are no offices

there, only phone numbers that are transferred to the Houston Office. ”

[11] The

deficiency in RSL’s evidence is one of substance, not form, because it does not

establish that Wilkerson’s actions were purposefully or deliberately directed

at Texas. Proof that Wilkerson’s comments

were ultimately associated with a webpage that included “local” in its URL is

only relevant if the evidence shows that Wilkerson intentionally directed his

comments to a local website. RSL

produced evidence of what it found without producing evidence that reflects what

Wilkerson did when he posted his comments.

[12] Although

not part of the evidentiary record, it is common knowledge, and we thus take

judicial notice, that websites such as Yahoo! and Yelp commonly repackage and

republish user contributions along with other information like the maps,

addresses, photographs, and other identifying characteristics relied upon by

RSL. See

Yahoo! Terms of Service , Yahoo!, at

§ 9 (Nov. 24, 2008),

http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html (providing that users

submitting content to Yahoo! grant the website operator a license to “to use,

distribute, reproduce, modify, adapt, publish, translate, publicly perform and

publicly display such Content (in whole or in part) and to incorporate such

Content into other works in any format or medium now known or later

developed”); Terms of Service , Yelp, at § 5(B) (July 21, 2010),

http://www.yelp.com/static?p=tos (“We may use Your Content in a number of

different ways, including publicly displaying it, reformatting it,

incorporating it into advertisements and other works, creating derivative works

from it, promoting it, distributing it, and allowing others to do the same in connection

with their own websites and media platforms . . . .”).

[13] See, e.g. , Shrader v. Biddinger , 633 F.3d 1235, 1244 (10th Cir. 2011)

(“defamatory postings may give rise to personal jurisdiction if they are

directed specifically at a forum state audience or otherwise make the forum

state the focal point of the message”).

[14] In any case, simply referencing Texas or

Texas residents is not sufficient to demonstrate that Texas was specifically

targeted by the allegedly tortious statements.

See, e.g. , Johnson v. Arden , 614 F.3d 785, 796 (8th

Cir. 2010) (no targeting of Missouri sufficient to support exercise of specific

personal jurisdiction based upon allegedly defamatory internet posting stating

that “Sue Johnson [a Missouri resident] and Cozy Kittens [a Missouri limited

liability company] operated from Unionville, Missouri, where they killed cats,

sold infected cats and kittens, brutally killed and tortured unwanted cats and

operated a ‘kitten mill’ in Unionville, Missouri.”).

[15] In his

deposition, Wilkerson testified that there was no lawsuit. He said, “I was just trying to drum up some

business for a class action lawsuit possibly after reading the reviews and

reading past histories of RSL.” He was

not asked whether this comment was directed toward Texas residents, and

considering that he lives in California, the comment itself is not evidence

suggesting that Texas residents were targeted by his solicitation of support

for a lawsuit.

[16] See, e.g. , Machulsky v. Hall , 210 F. Supp. 2d 531, 542 (D.N.J. 2002) (buyer’s

negative eBay feedback about seller was not purposefully directed toward

seller’s home state of New Jersey); Bailey

v. Turbine Design, Inc. , 86 F. Supp. 2d 790, 796 (W.D. Tenn. 2000) (holding

defamatory statements posted on defendant’s website attacked plaintiff as a

nationwide competitor in aircraft conversions, not as a Tennessee businessman);

English Sports Betting, Inc. v. Tostigan ,

No. CIV.A. 01-2202, 2002 WL 461592 , at *3 (E.D. Pa. Mar. 15, 2002) (stating

that “[t]here is a difference between tortious conduct targeted at a forum

resident and tortious conduct expressly aimed at the forum,” and holding that

defamatory statements published online did not target Pennsylvania, the forum

state); Archer & White, Inc. v. Tishler , No. CIV.A.3:03-CV-0742-D, 2003 WL 22456806 , at *3 (N.D. Tex. Oct. 23,

2003) (allegedly defamatory statement on third-party website about seller of

dentist’s drills was not directed at Texas, where Texas-based seller made most

of its sales).