EnerQuest Oil & Gas, L.L.C. v. Antero Resources Corporation

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00178-CV
___________________________

ENERQUEST OIL & GAS, L.L.C., Appellant

V.

ANTERO RESOURCES CORPORATION, Appellee

On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-290089-17

Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
 MEMORANDUM OPINION

I. Introduction

Appellee Antero Resources Corporation intervened in a lawsuit and brought a

trade secret misappropriation claim against Appellant EnerQuest Oil & Gas, L.L.C.

EnerQuest filed a special appearance challenging the trial court’s personal jurisdiction.

After the trial court overruled EnerQuest’s special appearance, EnerQuest filed this

accelerated, interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(7). We reverse and render.

II. Background

A. The Parties

Antero is a corporation headquartered in Colorado and is engaged in the

business of oil and gas exploration and production in West Virginia. EnerQuest is a

limited liability company, organized under the laws of Oklahoma. EnerQuest is also

in the oil and gas exploration and production business, operating oil and gas wells in

Oklahoma, Texas, Louisiana, Utah, and Arkansas, and owning nonoperating oil and

gas interests in numerous other states. Although it is registered and conducts some

business in Texas, EnerQuest maintains no offices or employees in Texas and is

headquartered in Oklahoma.

2
 In November 2015, EnerQuest entered into a “Limited Liability Company

Agreement” (Formation Agreement) with Braxton Minerals-Appalachia, LLC (BMA)1

to form Braxton Minerals III, LLC (BMIII)—a limited liability company organized

under and to be governed by the laws of Delaware with its principal place of business

in Texas—in order to “acquire, own, hold, and maintain Oil and Gas Interests in the

Buy Area . . . .” The Formation Agreement defines “Buy Area” as “the States of West

Virginia, Pennsylvania, and Ohio.” The Formation Agreement, which was signed by

EnerQuest’s president Gregory Olson and by BMA’s president at the time Brad

Ashburn,2 provided that EnerQuest and BMA would be the sole members of BMIII

with EnerQuest providing up to $10 million in investment capital and owning a 75%

interest and BMA owning a 25% interest. The parties also agreed that BMA would be

BMIII’s manager and that any action or proceeding relating to the Formation

Agreement, “shall be exclusively brought in any state or federal court located in

Oklahoma City, Oklahoma and . . . waive[] any objection . . . to the laying of venue of

any action or proceeding arising out of or in connection with this Agreement brought

in such courts . . . .”

1
BMA is a limited liability company organized under the laws of Texas.

BMA, along with Braxton Energy, LLC; Braxton Acquisitions, LLC; Braxton
2

Minerals II, LLC (BMII) is allegedly owned and controlled by Scott Bauer with whom
Brad Ashburn was formerly affiliated.

3
 For convenience and clarity, we have diagrammed the relationship between

these entities:

B. The Dispute and Lawsuit

Penn Investment Funds, LLC filed a lawsuit in the 141st District Court in

Tarrant County against seven defendants, alleging fraud and other causes of action

seeking disgorgement of approximately $225,000 in illegal profits.3 Antero, believing

that profits sought by Penn Investment had been generated in connection with the

According to Penn Investment, Braxton Energy, LLC, violated the terms of a
3

$1.6 million loan and used approximately $225,000 of the funds for profit
disbursements rather than applying 100% of the loan to the acquisition of West
Virginia mineral interests as required by the terms of the loan.

4
misappropriation of Antero’s trade secrets, intervened and added EnerQuest as a

party. Antero sought injunctive relief and damages based on trade secret

misappropriation, conspiracy, and aiding and abetting against various parties in the

lawsuit. According to the record before us, the only claim Antero’s live pleading—its

Amended Petition In Intervention And Application For Temporary And Permanent

Injunction—asserts against EnerQuest is for trade secret misappropriation.4

At the crux of its lawsuit, Antero alleges that Bauer and Ashburn participated in

an unlawful scheme to obtain Antero’s confidential documents5 and trade secrets

concerning Antero’s oil-and-gas business opportunities in West Virginia. According

to Antero’s allegations, Bauer and Ashburn then disclosed the confidential

information to additional parties, including EnerQuest.

In its brief, Antero vaguely asserts that it has amended its pleading to “clarify
4

its conspiracy allegations.” However, the amended petition in intervention is the only
of Antero’s pleadings in the clerk’s record before us, and it does not allege a
conspiracy claim against EnerQuest. See Atchison v. Weingarten Realty Mgmt. Co., 916
S.W.2d 74, 76 (Tex. App.—Houston [1st Dist.] 1996, no writ) (“The general rule is
that the court cannot consider an item that is not part of the record on appeal.”).

The three documents at issue are (1) a “Critical Date Report,” (2) a “SWN
5

June 2016 Acquisition Defects report,” and (3) certain title opinions reflecting legal
rights and ownership in surface estates and mineral interests in land located in West
Virginia. The Critical Date Report reflects Antero’s dates of drilling and dates for first
gas and oil sales from the wells. The SWN June 2016 Acquisition Defects report
reflected due diligence conducted by Antero in its acquisition of certain West Virginia
leases. And the title opinions reflect Antero’s counsel’s position concerning the
ownership of minerals and the rights to develop such minerals for land located in
West Virginia.

5
 Antero contends that EnerQuest both actively participated in and passively

benefited from the misappropriation of the trade secrets. First, Antero alleges that

EnerQuest, through an e-mail from its president Gregory Olson, “reached out” to

Bauer in order to obtain and thereby induce Bauer to misappropriate Antero’s trade

secrets. Second, Antero alleges that the trade secrets were utilized by BMII to

purchase assets, adverse to Antero, which were then sold to BMIII and funded by

EnerQuest as contemplated by the Formation Agreement. So when EnerQuest later

removed BMA and appointed itself as manager of BMIII, EnerQuest, by virtue of its

ownership and management of BMIII, improperly benefited from the

misappropriation of Antero’s trade secrets.

EnerQuest admits that it did receive the alleged trade secrets in February 2017

but denies wrongdoing or unlawful activity as alleged by Antero. EnerQuest disavows

any knowledge that Bauer, the individual who approached EnerQuest with an

opportunity to invest new capital in a mineral acquisition program in West Virginia,

had obtained any trade secrets. According to EnerQuest, it did not learn about the

misappropriation accusations until February 2018, at which point EnerQuest turned

over the alleged trade secrets to Antero. And, according to Olson, EnerQuest neither

discussed the information with anyone outside of EnerQuest (other than Bauer and

Ashburn), nor disclosed the information to anyone outside of EnerQuest.

6
C. The Special Appearance Proceedings

EnerQuest filed a special appearance, see Tex. R. Civ. P. 120a, contending that

the trial court had neither general nor specific personal jurisdiction over it. In its

special appearance, EnerQuest argued that the trial court had no general jurisdiction

over it because EnerQuest was organized under the laws of Oklahoma and

maintained its principal place of business in Oklahoma. EnerQuest argued that there

was no specific jurisdiction over it because none of the actions alleged by Antero

arose from any activity by EnerQuest that was intentionally or purposefully directed at

the State of Texas. EnerQuest further argued that any damages sustained by Antero

from such disclosure or use would be realized, not in Texas, but in West Virginia,

where the subject properties were located, or in Colorado, where Antero’s corporate

headquarters were located. EnerQuest supported its special appearance by attaching,

among other documents, Olson’s affidavit and the Formation Agreement.

As part of its response to EnerQuest’s special appearance, Antero sought a

continuance to conduct discovery limited to the issue of personal jurisdiction. Antero

also argued that the special appearance should be denied because EnerQuest had a

75% ownership interest in BMIII, a Texas entity run by Texans Bauer and Ashburn

and because BMIII had its principal place of business in Texas. According to Antero,

Bauer and Ashburn improperly acquired Antero’s trade secrets and provided them to

EnerQuest at EnerQuest’s request. Antero also argued that when, at EnerQuest’s

request, Bauer and Ashburn improperly provided the alleged trade secrets to
7
EnerQuest, EnerQuest received that information from Texas and sent money to

Texas for investment. Antero further asserted that EnerQuest—via an e-mail from

Olson to Bauer—had “reached out” to Bauer who was allegedly in Texas in order to

obtain and thereby misappropriate Antero’s trade secrets. However, Antero did not

raise general jurisdiction as a basis for jurisdiction over EnerQuest but instead argued

only for specific jurisdiction.

The trial court did not rule on Antero’s motion for continuance to conduct

discovery,6 and after a hearing, it overruled the special appearance. This interlocutory

appeal followed.

III. Discussion

EnerQuest argues that the trial court erred by denying its special appearance (1)

because Antero failed to meet its initial burden of pleading allegations sufficient to

permit the trial court to exercise personal jurisdiction—general or specific—over it;

(2) because there is no legally or factually sufficient evidence that EnerQuest is

“essentially at home” in Texas that would allow the exercise of general jurisdiction

6
Antero conditionally argues that we should remand without rendering
judgment dismissing EnerQuest in order to permit the trial court to consider whether
more jurisdictional discovery is warranted. But Antero does not direct us to anywhere
in the record to show that the motion for continuance was ruled on and we have not
located any ruling in the record. Accordingly, any error in the failure to permit
jurisdictional discovery prior to the special appearance hearing has not been preserved
for our review. See Tex. R. App. P. 33.1(a)(2); Mitchell v. Bank of Am., N.A., 156
S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiffs] failed to obtain a
ruling from the trial court on the motion for continuance and therefore, failed to
preserve error.”).

8
over it; and (3) because there is no legally and factually sufficient evidence to support

the exercise of specific jurisdiction over it under a contract or tort theory. Although

EnerQuest presents and briefs these as three separate issues, our primary focus is on

whether the trial court has specific jurisdiction over EnerQuest.7 See Tex. R. App. P.

47.1.

A. Personal Jurisdiction Law

Texas courts may exercise personal 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.”

Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013) (quoting Moki

Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007)); see also Tex. Civ. Prac.

& Rem. Code Ann. § 17.042(1), (2) (providing that “a nonresident does business in

this state if the nonresident: (1) contracts by mail or otherwise with a Texas resident

7
We focus our discussion in this regard because Antero did not expressly allege
in its pleadings, special-appearance response, oral argument at the special appearance
hearing, or appellate briefing that Texas courts have general jurisdiction over
EnerQuest. And, in any event, the record before us does not meet the “high bar”
required for general jurisdiction, Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex.
2016), as EnerQuest is not incorporated in Texas, does not have a principal place of
business in Texas, and does not maintain any offices in any state other than
Oklahoma. See Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S. Ct. 746, 754 (2014)
(holding courts may have general jurisdiction over a defendant only if the defendant’s
“affiliations with the [s]tate are so continuous and systematic as to render them
essentially at home in the forum [s]tate.” (citing Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011)). Accordingly, we need not
reach EnerQuest’s second issue regarding general jurisdiction.

9
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”). The requirements of the Texas long-

arm statute are considered satisfied if the exercise of personal jurisdiction comports

with federal due process. Twister B.V. v. Newton Research Partners, LP, 364 S.W.3d 428,

434 (Tex. App.—Dallas 2012, no pet.).

Personal jurisdiction over a nonresident defendant is consistent with due

process guarantees when 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 (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945)). Minimum contacts are

established when the nonresident defendant “purposefully avails itself of the privilege

of conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1240 (1958);

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). The

defendant’s conduct and connection with the state must be such that it could

reasonably anticipate being sued in the forum. See Burger King Corp. v. Rudzewicz, 471

U.S. 462, 474–75, 105 S. Ct. 2174, 2183–84 (1985); Am. Type Culture Collection, Inc. v.

Coleman, 83 S.W.3d 801, 806 (Tex. 2002) (“The defendant’s activities, whether they

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.”).

10
 A defendant’s contacts with a forum can give rise to either general or specific

jurisdiction, BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795–96 (Tex.

2002), and specific jurisdiction is established if the defendant’s alleged liability arises

from or relates to the defendant’s activity conducted within the forum. See Spir Star

AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010). A court may exercise specific

jurisdiction over a nonresident defendant when two requirements are met: (1) the

defendant’s contacts with the forum state are purposeful, and (2) the cause of action

arises from or relates to those contacts. Id.; Moki Mac, 221 S.W.3d at 576.

Even if minimum contacts are present, a trial court may not exercise personal

jurisdiction over a nonresident defendant if it would offend traditional notions of fair

play and substantial justice. Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano

Cty., 480 U.S. 102, 113, 107 S. Ct. 1026, 1033 (1987). “Only in rare cases, however,

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

the nonresident defendant has purposefully established minimum contacts with the

forum state.” Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815

S.W.2d 223, 231 (Tex. 1991).

B. Special Appearance Burdens of Proof

The parties in a special appearance proceeding bear shifting burdens of proof.

Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). 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. Id. If the nonresident
11
defendant challenges jurisdiction through a special appearance, it then bears the

burden of negating all bases of personal jurisdiction alleged by the plaintiff. Id.; Moki

Mac, 221 S.W.3d at 574. The nonresident defendant “can negate jurisdiction on either

a factual or legal basis.” Kelly, 301 S.W.3d at 659. Specific jurisdiction can be negated

on a legal basis if the defendant can establish that even taking the plaintiff’s alleged

facts as true, (1) “the evidence is legally insufficient to establish jurisdiction”; (2) “the

defendant’s contacts with Texas fall short of purposeful availment”; (3) “the claims do

not arise from the contacts”; or (4) “traditional notions of fair play and substantial

justice are offended by the exercise of jurisdiction.” Id.

C. Standard of Review

When reviewing a trial court’s order denying a special appearance, we must

review the trial court’s factual findings for legal and factual sufficiency but review its

legal conclusions de novo because whether a court has personal jurisdiction over a

defendant is a question of law. BMC Software, 83 S.W.3d at 794. When a trial court

does not issue findings of fact and conclusions of law with its special appearance

ruling, all facts necessary to support the judgment and supported by the evidence are

implied. Id. at 795. But when the appellate record includes both the reporter’s and

clerk’s records, these implied findings are not conclusive and may be challenged for

legal and factual sufficiency. Id. Generally, when we do not have a reporter’s record,

we indulge every presumption in favor of the trial court’s judgment. Wood v. Tex.

Dep’t of Pub. Safety, 331 S.W.3d 78, 79–80 (Tex. App.—Fort Worth 2010, no pet.).
12
However, when jurisdictional facts are undisputed, it is a question of law as to

whether those facts establish jurisdiction; the reviewing court “need not consider any

implied findings of fact” and will consider only the legal question of whether the

undisputed facts establish Texas jurisdiction. Old Republic Nat’l Title Ins. Co. v. Bell, 549

S.W.3d 550, 558 (Tex. 2018).

D. Jurisdictional Facts

Antero presents the following factual allegations in support of the trial court’s

exercise of personal jurisdiction over EnerQuest:

• EnerQuest is registered to do business in Texas and does business in Texas;

• EnerQuest entered into a contract—the Formation Agreement—with a Texas
company—BMA—to be performed in Texas;

• EnerQuest’s Formation Agreement with BMA was the “pathway” by which
EnerQuest received and benefitted from Antero’s alleged trade secrets;

• Based on the Formation Agreement, EnerQuest intended to acquire, and
funded the acquisition of, confidential information from Texas over a period of
years; and

• EnerQuest “reached out” to Texas to misappropriate confidential information.

E. Application of the Law to the Facts

1. No Jurisdiction Over EnerQuest Simply Because it is Registered to
Do Business and Conducts Some Business in Texas

Antero alleges personal jurisdiction over EnerQuest because EnerQuest is

registered to do business in Texas and conducts some business in Texas. In its

13
opening brief, EnerQuest acknowledged that it is registered to do business in Texas

and conducts business here.

Notwithstanding that this argument goes to a general jurisdiction theory—a

theory not advanced by Antero—rather than a specific jurisdiction theory of personal

jurisdiction, see Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 418 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied) (recognizing that courts “consider registering to

do business in Texas and maintaining a registered agent in Texas in undertaking a

minimum contacts analysis” to resolve whether Texas courts can “constitutionally

exercise general jurisdiction”), the undisputed facts that EnerQuest is registered to do

business in Texas and conducts some business in Texas are not on their own enough

to establish personal jurisdiction when they have no connection to Antero’s causes of

action. See id. (stating that “[a]lthough we consider registering to do business in Texas

and maintaining a registered agent in Texas in undertaking a minimum contacts

analysis,” such factors “are not dispositive”); Spir Star AG, 310 S.W.3d at 873; Moki

Mac, 221 S.W.3d at 576.

Accordingly, we cannot rely on Antero’s first jurisdictional fact alone as

support for the trial court’s order overruling EnerQuest’s special appearance.

2. No Jurisdiction Arising from Contracting with Texas Residents

Antero asserts that if EnerQuest received or benefited from the alleged trade

secrets, “it will have done so through the [Formation Agreement] contract obligating

two Texas residents to provide EnerQuest with title reports and information about
14
properties for EnerQuest to evaluate.” The gravamen of this argument is that by

contracting with BMA, a Texas limited liability company, to form BMIII—with Bauer

and Ashburn as Texas residents who would be conducting BMIII’s business in Texas

and designating Texas as BMIII’s principal place of business—EnerQuest, as a part

owner of BMIII, is subject to personal jurisdiction in Texas.

Texas’s long-arm statute provides, “a nonresident does business in this state if

the nonresident: 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) (emphasis added). EnerQuest has entered into a contract—the Formation

Agreement—with BMA, a Texas resident, so Antero has demonstrated the first part

of subsection one—that EnerQuest has contracted with a Texas resident.

However, “[m]erely contracting with a Texas resident does not satisfy the

minimum contacts requirement,” Blair Commc’ns, Inc. v. SES Survey Equip. Servs, Inc., 80

S.W.3d 723, 729 (Tex. App.—Houston [1st Dist.] 2002, no pet.), nor does the mere

fact that BMA may have incidentally performed its part of the contract in Texas. See

Max Protetch, Inc. v. Herrin, 340 S.W.3d 878, 886 (Tex. 2011) (holding that mere

communications made during performance of the contract generally are “insufficient

to subject a nonresident to the forum’s jurisdiction”); Peredo v. M. Holland Co., 310

S.W.3d 468, 474–75 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[A]

nonresident does not establish minimum contacts simply by contracting with a Texas

entity and engaging in numerous communications, by telephone or otherwise, with
15
people in Texas concerning the contract.”). The question is whether, based on

“[p]rior negotiations, contemplated future consequences, the terms of the contract,

and the parties’ actual course of dealing,” EnerQuest purposefully established

minimum contacts within Texas. TeleVentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900,

909 (Tex. App.—Austin 2000, pet. denied).

Although BMA may have been working in Texas, the Formation Agreement is

subject to Delaware law, contains an Oklahoma forum selection clause, and created a

Delaware company for the express purpose of developing oil and gas business in

West Virginia, Pennsylvania, and Ohio. The facts in this case are similar to those in

Searcy, in which the supreme court found no specific jurisdiction when the

nonresident appeared to have “purposefully avoided” Texas through New York

forum selection and choice of law clauses in the contract. 496 S.W.3d at 75 (noting

that “insertion of a clause designating a foreign forum suggests that no local availment

was intended”) (quoting Michiana Easy Livin’ Country, 168 S.W.3d at 792). Here, the

Formation Agreement likewise supports that EnerQuest “purposefully avoided”

Texas because the agreement contains an Oklahoma forum selection clause and a

Delaware choice of law clause.

To the extent that Antero argues that BMA’s serving as BMIII’s manager and

maintaining a principal place of business in Texas establishes jurisdiction, such a fact

is not proper in our analysis of whether specific jurisdiction exists over EnerQuest

because it focuses on BMA’s and BMIII’s (and their principals’) relationships to
16
Texas, not EnerQuest’s. See Burger King, 471 U.S. at 475, 105 S. Ct. at 2184 (explaining

the unilateral activity of another party or a third person cannot amount to purposeful

availment by the specially appearing defendant); M&F Worldwide, 512 S.W.3d at 889

(finding no specific jurisdiction when no evidence suggested that the specially

appearing, nonresident defendants had any role or authority in selecting location

where management company or manager would perform under the settlement

agreement contract and nothing in the agreement required performance in Texas).

But even if we could consider BMA’s and BMIII’s contacts, the fact that BMA may

have worked from Texas appears entirely incidental to the Formation Agreement,

which did not mandate a location from where BMIII would be managed. See Magnolia

Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 692 (Tex. App.—San Antonio

1998, no pet.) (holding no minimum contacts to support personal jurisdiction when

“Texas contacts were entirely incidental and immaterial to the purpose of the

contract”), abrogated on other grounds by BMC Software Belgium, N.V., 83 S.W.3d at 794

n.1. Thus, we decline to find specific jurisdiction over EnerQuest because BMA

happened to office in Texas, especially in light of the express contractual agreement

that disputes would be governed by Delaware laws and litigated in Oklahoma and that

the contract was entered into for purposes of oil and gas development in Ohio,

Pennsylvania, and West Virginia, not Texas.8

Antero also characterizes the Formation Agreement as a “pathway” for
8

EnerQuest to obtain Antero’s trade secrets that BMII already possessed. That is,
17
 Therefore, the mere entering into the Formation Agreement is insufficient to

establish specific personal jurisdiction over EnerQuest.

3. No Specific Jurisdiction for Allegedly Soliciting, Funding, and
Obtaining Trade Secrets from Texas Residents

Antero alleges that Texas has personal jurisdiction over EnerQuest because

EnerQuest committed a tort in Texas when it “reached out to Texas” to solicit, fund,

and obtain alleged trade secrets that were sent from Texas. See Tex. Civ. Prac. &

Rem. Code Ann. § 134A.002(3)(A). Antero points to an e-mail from Olson to Bauer

in which Olson requested that Bauer send him certain drill schedules and Bauer’s

response in which he stated that he did not have a digital copy of the schedules

because he kept them “on my person at all times, bc [sic] its [sic] one of my prize [sic]

possessions.” EnerQuest responds that: (1) the e-mail did not constitute a tort; (2)

any tort in the e-mail was not committed by EnerQuest; and (3) even if the e-mail

constituted a tort committed by EnerQuest, the tort was committed in Oklahoma and

there is no evidence to support that the e-mail was even received in Texas.

BMII had already improperly obtained Antero’s trade secrets, and the Formation
Agreement even refers to “title reports” that would be provided to EnerQuest as part
of the agreement to form BMIII. Again, however, such an allegation focuses on
BMII’s rather than EnerQuest’s Texas contacts, which is improper for resolving
EnerQuest’s special appearance. See Walden v. Fiore, 571 U.S. 277, 291 134 S. Ct. 1115,
1126 (2014) (“The proper focus of the minimum contacts inquiry in intentional-tort
cases is the relationship among the defendant, the forum, and the litigation.”); see also
Burger King, 471 U.S. at 475, 105 S. Ct. at 2184; M&F Worldwide, 512 S.W.3d at 889.

18
 The elements of a misappropriation of trade secrets claim are (1) the existence

of a trade secret, (2) breach of a confidential relationship or improper discovery of a

trade secret, (3) use of the trade secret, and (4) damages. Twister B.V., 364 S.W.3d at

437; IBP, Inc. v. Klumpe, 101 S.W.3d 461, 467 (Tex. App.—Amarillo 2001, pet. denied).

“[L]iability for a misappropriation of trade secrets claim occurs if one discloses or uses

another’s trade secrets, without privilege to do so, if (a) he discovers the secret by

improper means, or (b) his disclosure or use constitutes a breach of confidence placed

in him by the owner of the secret.” Twister B.V., 364 S.W.3d at 438.

Antero’s cases cited in support of personal jurisdiction for nonresident

defendants based on tortious conduct are factually distinguishable from this case

because the tortious activity in those cases was alleged to have occurred while the

nonresident defendant was physically present in Texas. See, e.g., Moncrief Oil Intern., 332

S.W.3d at 16 (concluding personal jurisdiction existed over trade secret

misappropriation claim against nonresident defendant because it failed to factually

negate that “Moncrief Oil disclosed trade secret information to Gazprom in Texas or

that Gazprom used Moncrief Oil’s trade secret information in Texas” (emphasis

added)); Schexnayder v. Daniels, 187 S.W.3d 238, 245–46 (Tex. App.—Texarkana 2006,

pet. dism’d w.o.j.) (concluding personal jurisdiction existed over out-of-state doctor

when he made “telephone calls initiated from Texas,” and “was actively practicing

medicine in Texas by directing the actions of his hospital’s team while it was in Texas”

(emphasis added)).
19
 Although it is true that the physical location of the out-of-state defendant is not

“dispositive” to negate personal jurisdiction, Nawracaj v. Genesys Software Sys., Inc., 524

S.W.3d 746, 755 (Tex. App.—Houston [14th Dist.] 2017, no pet.), the cases cited by

Antero to support this proposition are also factually distinguishable. For example, in

Nawracaj, a legal malpractice case in which the court determined that personal

jurisdiction existed over an out-of-state attorney who, while not having stepped foot

in a Texas courtroom, nevertheless had been admitted to the Texas federal district

court, conceded that he was subject to the State Bar of Texas’s authority to discipline

him, negotiated a contract with local counsel and supervised their work, and

performed the majority of the legal work on the Texas case. Id. at 756. And, in

Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154, 164 (Tex. App.—Fort Worth

2008, no pet.), the out-of-state defendant was subject to personal jurisdiction because

it had “deliberately induced its Texas customers to undertake further activity in Texas,

directed at a Texas business, in direct contravention of an agreement between those

residents and the Texas business.”

These kinds of facts are not present here. EnerQuest exercised no such

control over BMA, had no related Texas customers, and did not tortiously interfere

with a Texas business. See Moki Mac, 221 S.W.3d at 588 (holding no specific

jurisdiction in wrongful-death case when Texas resident died on a hiking trail in

Arizona because “the relationship between the operative facts of the litigation and

[the nonresident defendant’s] promotional activities in Texas are simply too
20
attenuated to satisfy specific jurisdiction’s due-process concerns”). Therefore, we

hold that the allegations and evidence of EnerQuest’s contacts lack the substantial

connection to Texas and are too attenuated to the tortious acts allegedly committed in

Texas to establish personal jurisdiction over EnerQuest. See Am. Type Culture

Collection, 83 S.W.3d at 806 (“A defendant is not subject to jurisdiction here if its

Texas contacts are . . . attenuated.”); RSM Prod. Corp. v. Glob. Petroleum Group, Ltd., 507

S.W.3d 383, 394 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding no

personal jurisdiction over nonresident entity because to the extent it may have

misappropriated trade secrets by, inter alia, sending e-mails to Texas related to the

trade secrets, “there are no pleadings or evidence demonstrating that this act occurred,

even in part, in Texas”).

Accordingly, we sustain EnerQuest’s third issue.

IV. Conclusion

Having concluded that EnerQuest lacked sufficient minimum contacts with

Texas to support the trial court’s exercise of personal jurisdiction over it, we reverse

the trial court’s order overruling EnerQuest’s special appearance and render judgment

dismissing EnerQuest for lack of personal jurisdiction.

/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice

Delivered: January 31, 2019

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