DUGAS LTD. PARTNERSHIP v. Dugas

SUE WALKER, Justice,

concurring and dissenting.

I. INTRODUCTION

I agree with the Majority Opinion’s holdings that specific jurisdiction exists concerning Appellees Donna Neal Goode Dugas and Laura Nicole Dugas’s claims against Appellants Dugas 1998 Irrevocable Trust, William Bruce Dugas Grandchild Trust, and James Stephen Turner and Hurley Calister Turner, Jr., Co-Trustees of the Dugas 1998 Irrevocable Trust f/b/o William Bruce Dugas. I concur with the Majority Opinion’s affirmance of the trial court’s order denying the special appearances of these Appellants.

I cannot agree, however, with the Majority Opinion’s holding that Texas courts may exercise general jurisdiction over Appellant Dugas Limited Partnership (Dugas LP). The special appearance evidence conclusively established that, despite a ten-year-old principal-place-of-business statement in Dugas LP’s initial partnership agreement, in fact Dugas LP never had its principal place of business in Texas and never did business in Texas. The minimum contacts required by the United States Constitution in order to comport with federal due process in subjecting Du-gas LP to the general jurisdiction of Texas courts must be based on factual reality, not on an untrue statement in a ten-year-old partnership agreement. Because Du-gas LP itself possesses no minimum contacts with Texas, the Majority Opinion looks to the contacts of an entity owned by Dugas LP in its minimum contacts analysis. But the minimum contacts required by the United States Constitution in order to comport with federal due process in subjecting Dugas LP to the general jurisdiction of Texas courts must be based on the contacts of Dugas LP itself, not upon a third party’s contacts with Texas. Because the majority holds that Dugas LP is subject to the general jurisdiction of Texas courts based solely on a ten-year-old principal-place-of-business statement in Dugas LP’s initial partnership agreement and on Dugas LP’s ownership of an entity that possesses some contacts with Texas, I am forced to dissent.

II. SPECIAL APPEARANCE BURDENS OF PLEADING AND PROOF

The plaintiff and the defendant bear shifting burdens of proof in a special appearance. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.2010). The plaintiff bears the initial burden to plead sufficient allegations to bring the nonresident defendant within the reach of Texas’s long-arm statute. Id. Once the plaintiff has pleaded sufficient jurisdictional allegations, the defendant filing a special appearance bears the burden to negate all bases of personal jurisdiction alleged by the plaintiff. Id. Because the plaintiff defines the scope and nature of the lawsuit, the defendant’s corresponding burden to ne*522gate jurisdiction is tied to the allegations in the plaintiffs pleading. Id. The defendant can negate jurisdiction on either a factual or legal basis. Id. at 659. Factually, the defendant can present evidence that it has no contacts with Texas, effectively disproving the plaintiffs allegations. Id. The plaintiff can then respond with its own evidence that affirms its allegations, and it risks dismissal of its lawsuit if it cannot present the trial court with evidence establishing personal jurisdiction. Id. Legally, the defendant can show that even if the plaintiffs alleged facts are true, the evidence is legally insufficient to establish jurisdiction; that the defendant’s contacts with Texas fall short of purposeful availment; or that traditional notions of fair play and substantial justice are offended by the exercise of jurisdiction. Id.

III. THE PLEADINGS AND THE EVIDENCE

In their original petition, Appellees pleaded,

Defendant Dugas Limited Partnership (“Dugas, LP”), is a limited partnership incorporated under the laws of the State of Delaware, with a corporate general partner, Dugas Asset Management Corp., a Delaware Corporation. Dugas LP may be served with process pursuant to the Texas Long Arm Statute. Dugas, LP is doing business in the State of Texas by, for example, entering into agreements, making distributions and/or loans to individuals in Texas, retaining counsel in Texas, negotiating payments in Texas, and asserting rights to real and personal property in Texas, but has not designated a resident agent in the State of Texas upon whom service of process can be made.17

In its special appearance, Dugas LP pleaded,

Defendant Dugas Limited Partnership is a limited partnership established under the laws of Delaware. Dugas Limited Partnership does not do business in the State of Texas. Dugas Limited Partnership owns no assets in the State of Texas. Dugas Asset Management Corp., a Delaware corporation, is its general partner. Dugas Asset Management Corp. does not do business in the State of Texas. Dugas Asset Management Corp. does not own assets in the State of Texas.

In their response to Dugas LP’s special appearance, Appellees pleaded,

Dugas LP is a resident of Texas, and is therefore subject to jurisdiction on all claims asserted against it in this case.
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By designating Aubrey, Texas as Du-gas LP’s principal place of business, Du-gas LP is present in Texas regardless of where it actually carries on the partnership business. The Dugas LP Agreement sets out clearly that its principal place of business is in Denton County, Texas. Under Texas law, venue is proper against a partnership wherever its principal office is located. Personal jurisdiction is proper where venue is based on the defendant’s presence in the county. [Internal citations omitted.]

At the special appearance hearing, Du-gas LP proffered the affidavits of David M. Wilds and Amy Freeney. Wilds’s affidavit indicates that since 1998, he has served as the Chief Financial Officer for *523The Family Office, L.L.C., a Tennessee limited liability company established by the Turners and the Dugases to provide services to their family members and their trusts. Wilds explained,

The Dugas Limited Partnership is a limited partnership organized under Delaware law. It was created in 1998. Its general partner is Dugas Asset Management Corporation, a Delaware corporation. Dugas Asset Management Corporation owns no real estate in Texas, it has no bank accounts in Texas, it has never filed suit in Texas, nor has it ever sought protection from creditors in Texas. Dugas Asset Management Corporation has no offices, no employees, and does not do business in Texas. Dugas Limited Partnership owns no real estate in Texas, it has no assets in Texas, it has no bank accounts in Texas, it has never filed suit in Texas, nor has it ever sought protection from creditors in Texas. Other than retaining counsel in Texas for representation in the lawsuit filed by [Appellees] against it in the Denton County Probate Court, the Dugas Limited Partnership does not do business in Texas.

Freene/s affidavit stated that she is the tax manager for The Family Office and that

Dugas Limited Partnership is a limited partnership organized under Delaware law. It was created in 1998. Its general partner is Dugas Asset Management Corporation, a Delaware corporation. Dugas Limited Partnership has always had its principal place of business in Nashville[,] Tennessee, all of its books and records have always been kept there and I have been the custodian of such records since the inception. Dugas Limited Partnership has never maintained another office and has never employed any employees. It has never had its principal office in Texas. All the business of Dugas Limited Partnership is conducted in and through The Family Office in Nashville, Tennessee, since 1998. Dugas Limited Partnership has never designated a registered agent for service of process in Texas.

IV. THE LAW CONCERNING GENERAL JURISDICTION

A nonresident defendant is subject to the personal jurisdiction of Texas courts if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction does not violate federal and state constitutional due process guarantees. Id. at 657; Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990). The broad “doing business” language in Texas’s long-arm statute allows the trial court’s jurisdiction to “reach as far as the federal constitutional requirements of due process will allow.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007) (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)). The Due Process Clause protects a defendant’s liberty interest in not being subject to the binding judgments of a forum with which it has established no meaningful “contacts, ties, or relations,” that is “minimum contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985). A defendant establishes minimum contacts with a state when it purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex.2009). The focus of a due process minimum contacts analysis is on the nonresident defendant’s activities and expectations. Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 790 (Tex.2005); Am. Type *524Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003). There are three parts to a purposeful availment inquiry: (1) only the nonresident defendant’s contacts with the forum are relevant, not the unilateral activity of another party or a third person; (2) the contacts relied on must be purposeful rather than random, fortuitous, or attenuated; and (3) the nonresident defendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. See Moki Mac River Expeditions, 221 S.W.3d at 575; Michiana Easy Livin' Country, Inc., 168 S.W.3d at 784-85.

A nonresident defendant’s contacts with a forum state can give rise to (a) general jurisdiction or (b) specific jurisdiction. See PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex.2007); Moki Mac River Expeditions, 221 S.W.3d at 575-76. General jurisdiction is a more demanding minimum-contacts analysis, requiring a showing that the defendant conducted substantial activities within the forum. CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). General jurisdiction exists when the defendant in question has “continuous and systematic general business contacts” with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984). General jurisdiction is based upon the concept of a bargain between the nonresident defendant and the forum state. If the defendant has established continuous and systematic general business contacts with the state, it is deemed to have purposely availed itself of the protections and benefits of the forum’s law, and thereby to have consented to suit in the forum. See Bearry v. Beech Aircraft Corp., 818 F.2d 370, 375 (5th Cir. 1987).

V. STANDARD OF REVIEW

Whether a court can exercise personal jurisdiction over nonresident defendants is a question of law, and thus we review de novo the trial court’s determination of a special appearance. Moki Mac River Expeditions, 221 S.W.3d at 574; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). “When [as here] 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.” BMC Software, 83 S.W.3d at 795.

VI. DUGAS LP IS NOT SUBJECT TO THE GENERAL JURISDICTION OF TEXAS COURTS

Once Appellees pleaded that Dugas LP was doing business in Texas by entering into agreements, making distributions and/or loans to individuals in Texas, retaining counsel in Texas, negotiating payments in Texas, and asserting rights to real and personal property in Texas, the burden shifted to Dugas LP to negate these bases of jurisdiction either factually or legally. See Kelly, 301 S.W.3d at 658. Dugas LP factually negated Appellees’ pleaded bases for jurisdiction through the affidavits of Wilds and Freeney. As set forth above, Wilds’s and Freeney’s affidavit testimony specifically factually negated Appellees’ allegations. The affidavits established that neither Dugas LP nor its general partner Dugas Asset Management Corporation did business in Texas, owned real estate in Texas, had any bank accounts in Texas, had ever filed suit in Texas, or had ever sought protection from creditors in Texas. Freeney’s affidavit affirmatively stated that Dugas LP had never maintained an office outside of Tennessee, had never had its principal place of business anywhere but Tennessee, and conducted all business through its Tennessee office. Wilds’s affi*525davit stated that Dugas Asset Management Corporation has no offices, no employees, and does not do business in Texas. Thus, the burden shifted back to Appellees to respond with their own evidence that affirmed them pleaded allegations. See id. at 659.

Appellees did not produce any evidence supporting their pleaded allegations. Instead, Appellees simply pointed to the statement in Dugas LP’s ten-year-old initial partnership agreement that Dugas LP’s principal place of business was in Texas. The statement in Dugas LP’s initial ten-year-old partnership agreement, however, is legally insufficient to support general jurisdiction over Dugas LP. That is, Dugas LP legally negated this purported basis for jurisdiction by proving that although the fact is true — Dugas LP’s initial ten-year-old partnership agreement does state that its principal place of business will be in Texas — this fact is legally insufficient to support personal general jurisdiction over Dugas LP because its contacts with Texas nonetheless fall short of purposeful availment. See id. (recognizing that defendant can legally negate plaintiffs alleged basis for jurisdiction by proving that even if plaintiffs alleged facts are true, they fall short of establishing defendant’s purposeful availment). Dugas LP legally negated this basis for jurisdiction because a due process minimum contacts analysis requires physical contacts with the forum state; words on a ten-year-old piece of paper that are not true cannot satisfy the federal constitutional due process minimum contacts analysis. See Alenia Spazio, S.p.A., v. Reid, 130 S.W.3d 201, 212 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (holding that, in absence of special appearance evidence of “remaining officers operating in Texas or of any activity by USRT [a limited liability company] in Texas” after August 1999, special appearance evidence was legally insufficient to support finding that USRT’s principal place of business was in Texas after August 1999 despite statement in limited liability company’s agreement that “as of January 3,1997” its principal place of business was in Houston), cert. denied, 549 U.S. 821, 127 S.Ct. 136, 166 L.Ed.2d 36 (2006); see also Burger King Corp., 471 U.S. at 471-72, 105 S.Ct. at 2181-82 (recognizing that in order to subject a defendant to the binding judgments of a forum, the defendant must have meaningful contacts, ties, or relations with the forum).

Although no jurisdictional alter ego or veil-piercing theories were pleaded or argued by the parties, the Majority Opinion notes that

[t]he only asset of Dugas, LP that is identified in the partnership agreement is Dugas Family Partners, a Texas General Partnership. The partnership agreement lists the fair market value of Dugas Family Partners at over $164 million. Therefore, based on this record, Dugas, LP’s only function is to manage the valuable assets of a Texas General Partnership — an activity that requires Dugas, LP to utilize Texas-based assets. [Citation omitted.]

The United States Supreme Court and the Texas Supreme Court have repeatedly instructed us that only the nonresident defendant’s contacts with the forum are relevant, not the unilateral activity of another party or a third person. See, e.g., Burger King Corp., 471 U.S. at 474, 105. S.Ct. at 2183 (“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.”); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958) (same); Moki Mac River Expeditions, 221 S.W.3d at 575 (same); Michiana Easy Livin’ Country, Inc., 168 S.W.3d at 784-85 *526(same). Thus, the fact that Dugas LP may own an entity that does business in Texas is not relevant to a minimum contacts analysis in the absence of some jurisdictional alter ego or veil-piercing allegations and proof, which are not present in this case. See, e.g., PHC-Minden, L.P., 285 S.W.3d at 172-76 (discussing proof necessary for jurisdictional veil-piercing and concluding that court of appeals “erred in imputing Province’s Texas contacts to Minden”).

I cannot agree with the Majority Opinion’s holding that two facts — a ten-year-old, inaccurate statement in Dugas LP’s initial partnership agreement that Dugas LP’s principal place of business was in Texas and Dugas LP’s ownership of a Texas general partnership, a non-real property asset — somehow constitute “doing business in Texas” and somehow satisfy the rigorous minimum contacts analysis required by the Due Process Clause of the United States Constitution to subject a defendant to the general jurisdiction of Texas courts. Neither of the facts relied upon in the Majority Opinion show that Dugas LP purposefully availed itself of the privilege of conducting activities within Texas. Neither of the facts relied upon in the Majority Opinion show that Dugas LP invoked the benefits and protections of Texas’s laws. Neither of the facts relied upon in the Majority Opinion show that Dugas LP actually conducted any activities in Texas, much less substantial activities within Texas. Neither of the facts relied upon in the Majority Opinion show continuous and systematic contact by Dugas LP with Texas. Instead, the two facts relied upon in the Majority Opinion bear no relevance to the required minimum contacts analysis.

VII. CONCLUSION

Because Dugas LP factually negated Appellees’ pleaded bases for jurisdiction by establishing that it did not do business in Texas; because Appellees did not come forward with any evidence supporting their allegations that Dugas LP did do business in Texas; because Dugas LP legally negated Appellees’ contention that the Texas courts possessed general jurisdiction over it based on the inaccurate statement in its ten-year-old initial limited partnership agreement; and because the majority’s reliance on Dugas LP’s ownership of a Texas general partnership that has contacts with Texas is not relevant in the absence of jurisdictional alter ego or veil-piercing pleadings, I would reverse the trial court’s denial of Dugas LP’s special appearance. Because the majority does not do so, I respectfully dissent to the Majority Opinion’s holding that general jurisdiction exists over Dugas LP. I would reverse the trial court’s order denying Du-gas LP’s special appearance. I concur with the other holdings of the Majority Opinion.

. In an amended petition filed after Dugas LP filed its special appearance, Appellees added a sentence, pleading that Dugas LP’s general partner was Dugas Asset Management Corporation, a Delaware Corporation, and that Dugas LP was doing business in Texas by "designating its principal place of business in Texas.”