In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00201-CV
__________________
THEODORE OSHMAN, OSHMAN FIRM, LLC, AND
OSHMAN & MIRISOLA, LLP, Appellants
V.
RICHARD WILKISON, INDIVIDUALLY AND ON BEHALF
OF THE ESTATE OF CODY WILKISON, DECEASED, Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 22-09-12453-CV
__________________________________________________________________
MEMORANDUM OPINION
This interlocutory appeal pertains to a special appearance wherein the
Defendants, Appellants Theodore Oshman, Oshman Firm, LLC, and Oshman &
Mirisola, LLP (hereinafter collectively “Defendants” or “Appellants”), alleged that
the trial court lacked personal jurisdiction over the legal malpractice claims filed
against them by Plaintiff, Richard Wilkison, individually and on behalf of the estate
of his son, Cody. According to Wilkison, he contacted the Defendants to pursue
1
Wilkison’s claims, individually and on behalf of Cody’s estate, arising from Cody’s
death due to the use of mitragynine, an herbal extract (a/k/a “Kratom”). Wilkison
filed a petition in Montgomery County, Texas, district court, asserting claims against
the Defendants for legal malpractice, negligence, breach of fiduciary duty, and
violations of the Deceptive Trade and Practices Act. The Defendants filed a special
appearance challenging specific jurisdiction. After a hearing, the trial court granted
the special appearance. Wilkison filed a Motion for Reconsideration, a Notice of
Appeal, and a Motion for New Trial. The trial court granted the motion to reconsider,
held a hearing on the motion, vacated its prior order granting the special appearance,
and entered a new order denying the special appearance. The Defendants timely filed
an interlocutory appeal. Because we conclude that the Appellants’ contacts with
Texas were insufficient to purposefully avail themselves of the privilege of
conducting activities here, the trial court lacked personal jurisdiction over the
Appellants. We reverse the trial court’s order denying Appellants’ special
appearance and dismiss Appellee’s claims against Appellants for lack of personal
jurisdiction. 1
Wilkison concedes that the trial court lacks general personal jurisdiction over
1
the Defendants. Therefore, the only jurisdictional issue present in this case is
whether the trial court could exercise specific personal jurisdiction over Defendants.
2
Background
In Wilkison’s petition, 2 he alleged that on November 28, 2018, his son, Cody,
died at his home in Conroe, Texas. According to the petition, Cody had consumed
mitragynine or Kratom which is commercially available in Texas, and the autopsy
stated the cause of Cody’s death as “[a]cute toxic effects of mitragynine.” Wilkison
alleged that both he and his son, Cody, resided in Montgomery County, Texas, and
that Defendant Theodore (“Ted”) Oshman resided in Florida, Defendant The
Oshman Firm, LLC is a foreign limited liability company organized and existing
under the laws of New Jersey, and Defendant Oshman & Mirisola, LLP is a foreign
limited liability partnership organized and existing under the laws of New York.
Wilkison alleged that the Defendants represented through their website that they
handle personal injury and death cases related to Kratom use, that the Defendants
file lawsuits pertaining to Kratom consumption, and that they litigate in all fifty
states according to this statement on their website:
The Oshman Firm was founded over 35 years ago on a commitment to
service and excellence in all aspects of practicing law. Today, we
provide the same level of service to those in need in all 50 states.
According to the petition, on or about June 5, 2019, Wilkison completed and
submitted the “Free Case Evaluation” form that appears on the Defendants’ website,
2
In this memorandum opinion, we refer to Wilkison’s First Amended Petition
as the “petition” because it was the live petition at the time the trial court signed the
order denying the special appearance.
3
Defendants subsequently asked him to complete other documents including the
“Kratom Questionnaire” (which Defendants allegedly referred to as the “Kratom
Case Sign Up” document) and a medical release authorization form. The petition
states that Wilkison also provided documents to the Defendants related to Cody’s
death, including the autopsy identifying Kratom as the cause of death. According to
the petition, the Defendants let the statute of limitations in Texas expire on
Wilkison’s wrongful death cause of action and did not notify Wilkison of their
decision not to pursue the wrongful death case until June 13, 2022, one year and six
months after the statute of limitations had expired. Wilkison alleges that despite the
Defendants’ representations regarding their nationwide practice and work in Kratom
cases, Wilkison learned from discovery that the Defendants do not handle Texas
cases and have never been counsel of record in a Kratom case.
Defendants filed a Special Appearance, Objection to Personal Jurisdiction and
Original Answer Subject Thereto, generally denying Wilkison’s allegations and
challenging the trial court’s personal jurisdiction over the Defendants. The
Defendants alleged in their Special Appearance that they are not amenable to process
issued by Texas courts, and the Defendants allege they are not subject to the
jurisdiction of Texas courts because the Defendants:
(a) are not residents of Texas and are not required to maintain, nor do
they maintain, a registered agent for service in Texas;
(b) have not engaged in business activities or conduct that would subject
them to jurisdiction in Texas;
4
(c) have not done business in Texas within the meaning of Tex. Civ.
Prac. & Rem. Code § 17.042;
(d) have not committed any torts, in whole or in part, in Texas;
(e) do not maintain a place of business in Texas and have never
maintained offices or any other type of facility in Texas;
(f) do not own any real property in Texas;
(g) do not maintain any bank accounts, telephone numbers or post office
boxes in Texas; and
(h) do not engage in any marketing or advertising directed towards
Texas residents.
According to their Special Appearance, the Defendants are foreign residents with
insufficient “minimum contacts” with Texas, the Defendants have not undertaken or
established general or specific contacts that would justify the trial court’s exercise
of personal jurisdiction, the Defendants did not expect to be sued in Texas based on
the legitimate activities they were conducting outside that state, it is not reasonable
for the Defendants to have anticipated being hauled into a Texas court on Wilkison’s
allegations, and the trial court’s assumption of jurisdiction over the Defendants
would violate Texas and federal law because it would offend traditional notions of
fair play and substantial justice and deprive the Defendants of due process
guaranteed by the Fourteenth Amendment of the United States Constitution.
The Defendants filed a Brief in Support of Special Appearance, and Objection
to Personal Jurisdiction, with exhibits attached as evidence in support of their
argument that the Defendants lacked the requisite “minimum contacts” with the
State of Texas, and they subsequently filed a Supplement to Their Brief in Support
5
of Special Appearance with a supplemental affidavit of Theodore Oshman. 3 The
Defendants argued in their Brief in Support of Special Appearance that the HIPAA
Authorization itself shows that it did not create an attorney-client relationship
because the attorney information section was never filled in with their information
identifying them as Wilkison’s counsel. As for purposeful availment, the Defendants
argued that Wilkison cannot establish specific jurisdiction over Defendants because
Wilkison’s causes of action do not arise out of legal representation purposely
directed to Texas and, as set out in Oshman’s affidavit, Defendants do not reside in
Texas, do not have a principal place of business in Texas, Oshman and the lawyers
in the Oshman Firm or Oshman & Mirisola are not licensed to practice in Texas state
or federal courts, the Defendants do not file cases in Texas, and that when the
Defendants have occasionally represented Texas residents in the past those matters
were handled and filed outside of Texas. According to the Defendants’ Brief in
Support of Special Appearance, Oshman’s affidavit also established that the
Defendants never mailed Wilkison any documents, the Defendants only
3
Wilkison filed a motion to strike Oshman’s original and supplemental
affidavits on the bases that they are “sham affidavits” contradicted by Oshman’s
earlier sworn statements and because portions of each affidavit are too vague and
ambiguous to constitute competent evidence. At the time the trial court denied the
special appearance, the trial court had not ruled on the motion. Because the alleged
contradiction concerning the date Oshman notified Wilkison that he would not be
accepting the case is not relevant to our analysis, we need not address Wilkison’s
“sham affidavit” objection.
6
communicated via email and telephone with Wilkison, Defendants never noticed or
attended any depositions or meetings for Wilkison in or outside Texas, and the
Defendants do not advertise locally or conduct business in Texas. The Defendants
further argued that while they deny ever agreeing to represent Wilkison, even if they
had, the mere act of contracting with a Texas resident does not give rise to specific
jurisdiction in Texas because performance must be due in Texas. According to the
Defendants, neither the fact that Wilkison submitted an inquiry through the Oshman
Firm’s website nor the fact that Oshman researched Texas law supports specific
jurisdiction. The Defendants asserted that the exercise of jurisdiction would offend
the traditional notions of fair play and substantial justice under these facts.
Wilkison filed a Response to Defendants’ Special Appearance, and he argued
that after his son’s death he turned to the Defendants for legal representation
regarding the wrongful death of his son, and that the Defendants claim on their
website to have experience in Kratom-related litigation and claim to handle cases in
all fifty states. According to the Response, Wilkison signed the documents that the
Defendants sent to him, including a document the Defendants internally called the
“kratom case sign up” and a medical authorization that would designate Defendants
as Plaintiff’s attorneys for the purpose of reviewing Cody’s medical records.
Wilkison also alleged that he had conversations about his case with Ted Oshman and
that Oshman and Wilkison communicated through text on their cell phones.
7
Wilkison attached as exhibits to his response his sworn declaration, pleadings in the
case, Defendants’ discovery responses, text and email communications between
Wilkison and Oshman, printed portions of the Oshman Firm’s website, the “Kratom
Questionnaire” Wilkison completed and submitted to the Defendants, information
about the alleged seller of the Kratom consumed by Cody, the HIPAA authorization
form in the case, and Cody’s autopsy report. The Defendants filed a Reply Brief in
Support of Special Appearance, and an Objection to Plaintiff’s Evidence Attached
with His Response to Special Appearance.4
The trial court held a hearing and initially granted Defendants’ Special
Appearance. Wilkison filed a Motion for Reconsideration, arguing that the
Defendants failed to meet their burden to negate all bases of jurisdiction, that
Oshman’s affidavit stating that the Defendants declined Wilkison’s case on at least
two occasions in early 2020 was a sham affidavit objected to by Wilkison because
it contradicts discovery responses, and that the evidence does not support the
Defendants’ argument that the lawsuit did not have to be brought in Texas. Wilkison
also filed a Motion for New Trial asserting the same arguments. In a supplement to
his Motion for Reconsideration, Wilkison argued that under the rationale in LG
Chem America, Inc. v. Morgan, 670 S.W.3d 341 (Tex. 2023) (hereinafter “LG
4
At the time the trial court denied Defendants’ Special Appearance, it had not
ruled on Defendants’ objections to Wilkison’s evidence attached to his response to
the Special Appearance.
8
Chem”), Defendants’ intent behind their contacts with Wilkison or whether they
intended to represent Wilkison is not relevant for purposes of ruling on their special
appearance.
The Defendants filed a Response to Plaintiff’s Motion for Reconsideration
and a Brief Regarding the LG Chem Case. The Defendants allege that in Wilkison’s
Motion for Reconsideration he confuses the burden of proof, Wilkison’s sham
affidavit arguments lack merit, and the cases Wilkison relied on in his Motion for
Reconsideration and at the hearing on the motion, including LG Chem, are factually
distinguishable from the present case and inapplicable.
After the hearing on Plaintiff’s Motion for Reconsideration and Motion for
New Trial, the trial court signed an Order Granting Motion for New Trial and
Denying Special Appearance (the “Order”). The Order states that the trial court had
previously granted the Special Appearance “principally based upon the fact that the
purported act of malpractice involved Defendants not filing a lawsuit on behalf of
Plaintiff . . . [which] evidenced that Defendants deliberately chose not to do business
in Texas.” The Order states that both purposeful availment and relatedness for
specific jurisdiction purposes “seem lacking when Defendants make a deliberate
decision to terminate the relationship[,]” and that the malpractice claim is based on
the Defendants’ decision not to represent Wilkison without notifying him in time to
find another lawyer prior to the expiration of the statute of limitations. In its
9
reconsideration and decision to deny the Defendants’ Special Appearance, the trial
court states it relied on LG Chem and stated in the Order that, in light of LG Chem,
“[t]aking the intent issue out of the debate changes everything here[,]” and the trial
court had reconsidered the significance of the Defendants’ withdrawal from the
relationship with Plaintiff, and “given the nature of [Defendants’] contact with this
Texas resident about this Texas matter, Defendants should have been on notice that
they could be subject to Texas’ jurisdiction.” The trial court specified in its Order
the following as significant in ruling on the special appearance:
• Defendants communicated with Plaintiff by telephone and in writing
on numerous occasions, all while Plaintiff was in Texas and for the
purpose of representing this Texas Plaintiff.
• Defendants sent paperwork to Plaintiff in Texas to further the
representation. That paperwork, executed in Texas, gave Defendants
access to information in Texas in order to evaluate the case
regarding the death of a Texas resident in Texas using a product
obtained in Texas.
• Defendants indicated that they were planning to represent this Texan
Plaintiff in a lawsuit. That lawsuit would likely have been filed in
Texas, though this is a point which Defendants dispute, noting that
the lawsuit was not required to be filed in Texas. Regardless of
where the lawsuit would likely have been filed, Texas law would
apply to this lawsuit, and discovery activities – document gathering,
depositions, witness interviews, and the like – would be conducted
in Texas with Texans. Indeed, the documents Defendants gathered
while doing their litigation evaluation were gathered via the written
consent of this Texas Plaintiff, which was sent to him in Texas,
signed by him in Texas, and returned from him to Texas. All of the
documents Defendants requested and obtained (e.g., the death
certificate, the autopsy report) were from the State of Texas.
10
In the Order, the trial court explained that the relationship and obligation between
the Defendants and Wilkison when the Defendants began evaluating a lawsuit as the
attorneys for this Texas client form the basis of the lawsuit – “namely, failing to file
the lawsuit and allowing limitations to run.” The trial court also indicated it relied
on Cartlidge v. Hernandez, 9 S.W.3d 341, 347-49 (Tex. App—Houston [14th Dist.]
1999, no pet.). The trial court stated, “even if they never intended to contract with or
to file any lawsuit for this Texas Plaintiff, [the Defendants’ actions] are enough to
put Defendants on notice that they might be hailed into a Texas court related to any
claims about that relationship and those obligations.” Ultimately, in its Order
granting Wilkison’s motions for reconsideration and new trial and denying the
Defendants’ Special Appearance, the trial court reasoned:
Now that the Supreme Court has made clear that Defendants’
intention – their ultimate declination – is not at issue, the outcome must
change. Only Defendants’ actions matter, and their actions are
sufficient to show minimum contacts with Texas. As in LG Chem, by
advertising their services, claiming they represent clients in all 50
states, and by accepting and engaging in a relationship with a Texas
client regarding legal representation, these Defendants “purposefully
availed themselves of Texas and have enjoyed the benefits and
protection of Texas laws . . . . Texas’s enforcement of the [D]efendants’
reciprocal obligation to ensure that its [representation will not cause
economic harm to] Texas citizens can ‘hardly be said to be undue.’” LG
Chem, [670 S.W.3d at 350]. That is particularly so where, as here,
Defendants could have “structure[d] their Texas-directed conduct to
avoid exposure to [this] lawsuit[]” [Id.] by simply not reviewing this
Texan’s case.
Negotiating to take a Texas resident’s case, characterizing him
as a client in internal documentation, and gathering data to prepare the
lawsuit and/or to determine whether to take the lawsuit are enough for
11
Defendants to have created an attorney-client relationship with this
Texas resident, and those actions are sufficient for this Court to exercise
jurisdiction even though Defendants never filed the lawsuit. As in LG
Chem, it would not violate due process for Texas to exercise personal
jurisdiction over Defendants when Plaintiff was injured by the very
relationship which Defendants advertised to and then formed with this
Texas Plaintiff, especially when that relationship was based upon the
allegedly tortious death of a Texas resident in Texas via a product
provided to him in Texas.
The Defendants timely filed this interlocutory appeal.
Issue on Appeal
In one appellate issue, the Defendants argue that the trial court lacks personal
jurisdiction over them, and the trial court erred in denying their Special Appearance.
Specifically, Defendants argue that the trial court’s denial of the Special Appearance
based on Oshman’s (a non-Texas attorney) communications with Wilkison (a
potential Texas client) and the trial court’s conclusion that it was foreseeable that
the potential Texas client would be harmed in Texas by Oshman’s poor performance
or non-performance “contradicts Texas Supreme Court authority establishing that
jurisdiction is not conferred through the out-of-state commission of a tort even when
the effects or impact of that tort are foreseeable within Texas.”5
5
Citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790
(Tex. 2005).
12
Standard of Review
A nonresident defendant may challenge a Texas court’s personal jurisdiction
over the defendant by filing a special appearance. Tex. R. Civ. P. 120a. Whether a
trial court has personal jurisdiction over a nonresident defendant is ultimately a
question of law that we review de novo. LG Chem, 670 S.W.3d at 346; Moncrief Oil
Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013); BMC Software Belg.,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The plaintiff has the initial
burden of pleading sufficient allegations to bring a nonresident defendant within the
jurisdiction of a Texas court. LG Chem, 670 S.W.3d at 346; Moncrief Oil Int’l, Inc.,
414 S.W.3d at 149; Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.
2010); Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.
2009); Booth v. Kontomitras, 485 S.W.3d 461, 476 (Tex. App.—Beaumont 2016,
no pet.). If the plaintiff meets this initial burden, the defendant then bears the burden
to negate all bases of personal jurisdiction alleged by the plaintiff. See LG Chem,
670 S.W.3d at 346 (citing Kelly, 301 S.W.3d at 658). The defendant may negate the
jurisdictional allegations on either a factual or legal basis. Kelly, 301 S.W.3d at 659.
Where relevant facts are undisputed, as here, we only consider the legal question
whether the undisputed facts establish Texas jurisdiction.6 See Old Republic Nat’l
6
Although the date Oshman notified Wilkison that he was not accepting the
case is disputed, that fact is irrelevant to the jurisdictional analysis.
13
Title Ins. Co. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018). When reviewing the
plaintiff’s jurisdictional allegations, we ask only whether the allegations are
sufficient to invoke the exercise of personal jurisdiction over the defendant without
regard to the merits of the claims. See Booth, 485 S.W.3d at 477.
Personal Jurisdiction Generally
“A court must have personal jurisdiction over a defendant to issue a binding
judgment.” LG Chem, 670 S.W.3d at 346 (citing Luciano v.
SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 7-8 (Tex. 2021)). Texas courts may
exercise jurisdiction over a nonresident defendant as authorized by the Texas long-
arm statute and when consistent with federal due-process guarantees. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 17.041-045 (the Texas long-arm statute); LG Chem,
670 S.W.3d at 346; Luciano, 625 S.W.3d at 8. The Texas long-arm statute provides
that a nonresident does business in the state if the nonresident commits certain acts
in Texas, including, but not limited to, the following:
(1) contracts by mail or otherwise with a Texas resident and either party
is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary located
in this state, for employment inside or outside this state.
Tex. Civ. Prac. & Rem. Code Ann. § 17.042. An allegation of jurisdiction may
satisfy the Texas long-arm statute, but the allegation may not satisfy the United
States Constitution. Moncrief Oil Int’l, Inc., 414 S.W.3d at 149. Therefore, even if a
14
court determines the facts satisfy the Texas long-arm statute, the court must also
examine the facts to determine whether the exercise of personal jurisdiction over the
defendant comports with due process. See CSR Ltd. v. Link, 925 S.W.2d 591, 594
(Tex. 1996). Personal jurisdiction is consistent with due process when (1) the
nonresident defendant has established minimum contacts with the forum state, and
(2) the exercise of jurisdiction comports with traditional notions of fair play and
substantial justice. Kelly, 301 S.W.3d at 657.
Personal Jurisdiction
Whether the trial court has personal jurisdiction over a defendant is a question
of law that we review de novo. Moncrief Oil Int’l, Inc., 414 S.W.3d at 150; BMC
Software Belg., 83 S.W.3d at 794-95. The plaintiff has the initial burden of pleading
sufficient allegations to bring a nonresident defendant within the jurisdiction of a
Texas court. Moncrief, 414 S.W.3d at 149; Kelly, 301 S.W.3d 653 at 658-59;
Retamco, 278 S.W.3d at 337. If the plaintiff meets his initial burden, “the burden
shifts to the defendant to negate all potential bases for personal jurisdiction the
plaintiff pled.” Moncrief, 414 S.W.3d at 149; BMC Software Belg., 83 S.W.3d at
793. A defendant may negate the plaintiff’s jurisdictional allegations on either a
factual basis or a legal basis. Kelly, 301 S.W.3d at 658-59.
Factually, the defendant can present evidence that it has no contacts
with Texas, effectively disproving the plaintiff’s allegations. 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
15
trial court with evidence establishing personal jurisdiction. Legally, the
defendant can show that even if the plaintiff’s alleged facts are true, the
evidence is legally insufficient to establish jurisdiction; the defendant’s
contacts with Texas fall short of purposeful availment; for specific
jurisdiction, that the claims do not arise from the contacts; or that
traditional notions of fair play and substantial justice are offended by
the exercise of jurisdiction.
Id. at 659 (footnotes omitted). If the plaintiff does not plead facts bringing a
defendant within reach of the Texas long-arm statute, the defendant need only prove
that it does not live in Texas to negate jurisdiction. Id. at 658-59 (citing Siskind v.
Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982)); Booth, 485 S.W.3d
at 476.
Asserting personal jurisdiction over a nonresident defendant comports with
due process when (1) the nonresident defendant has minimum contacts with the
forum state, and (2) asserting jurisdiction comports with traditional notions of fair
play and substantial justice. Retamco, 278 S.W.3d at 338. The minimum contacts
analysis requires “‘some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.’” Michiana Easy Livin’ Country, Inc. v. Holten, 168
SW.3d 777, 784 (Tex. 2005) (quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958)). The focus is on the defendant’s activities and expectations. Am. Type
Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
16
A defendant’s contacts may support either general personal jurisdiction or
specific personal jurisdiction. See Moncrief Oil Int’l, Inc., 414 S.W.3d at 150; Zinc
Nacional, S.A. v. Bouché Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010). General
jurisdiction arises when a defendant’s contacts with the forum state are so
“‘continuous and systematic’” that the defendant is “‘essentially at home[]’” in the
forum state. State v. Volkswagen Aktiengesellschaft, 669 S.W.3d 399, 412 (Tex.
2023) (citations omitted). This kind of personal jurisdiction allows courts to render
a binding judgment against a defendant even if the plaintiff’s claims neither arise
from activities conducted in the forum state nor “‘relate to the forum [s]tate or the
defendant’s activity there.’” Id. (quoting Ford Motor Co. v. Mont. Eighth Jud. Dist.
Ct., 141 S. Ct. 1017, 1024 (2021)). Here, Wilkison conceded in his motion for new
trial that Defendants are not subject to general jurisdiction and he stated, “[w]hile
the defendants[’] contacts with a forum state can give rise to general or specific
jurisdiction, this case involves specific jurisdiction.” Accordingly, the only question
here is whether the trial court has specific personal jurisdiction over the Defendants.
Specific Personal Jurisdiction
Specific personal jurisdiction applies more narrowly than general jurisdiction.
Volkswagen Aktiengesellschaft, 669 S.W.3d at 412-13 (citing Ford Motor Co., 592
U.S. at 352). Courts can exercise specific jurisdiction over a nonresident defendant
when two conditions are met: (1) the defendant engages in some act by which it
17
purposefully avails itself of the privilege of conducting activities within the forum
state, and (2) the plaintiff’s claims arise out of or relate to those forum contacts. Id.
(citing Ford Motor Co., 592 U.S. at 352; Luciano, 625 S.W.3d at 8-9); see also Moki
Mac River Expeditions v. Drugg, 221 S.W.3d 569, 579 (Tex. 2007) (specific-
jurisdiction analysis involves two co-equal components: purposeful availment and
relatedness)). This kind of personal jurisdiction involves a “‘claim-by-claim’”
analysis that focuses on the relationship between the defendant, the forum state, and
the operative facts of the litigation. Volkswagen Aktiengesellschaft, 669 S.W.3d at
413 (quoting Moncrief Oil Int’l, Inc., 414 S.W.3d at 150); see also Bristol-Myers
Squibb Co. v. Superior Ct., 582 U.S. 255, 262 (2017); TV Azteca, S.A.B. de C.V. v.
Ruiz, 490 S.W.3d 29, 42 (Tex. 2016) (quoting Walden v. Fiore, 571 U.S. 277, 283-
84 (2014)). We consider the “quality and nature of [these] contacts, rather than their
number[.]” Am. Type Culture Collection, 83 S.W.3d at 806. And we examine the
Defendants’ purposeful conduct and contacts with Texas, rather than another’s
conduct and contact with Texas. See Walden, 571 U.S. at 291 (“[I]t is the defendant,
not the plaintiff or third parties, who must create contacts with the forum State.”) A
substantial connection may result, however, from a single purposeful act. Moncrief
Oil Int’l, Inc., 414 S.W.3d at 151-52.
18
Purposeful Availment
The first prong of specific jurisdiction, purposeful availment, is the
“touchstone of jurisdictional due process[.]” Michiana Easy Livin’ Country, Inc.,
168 S.W.3d at 784. The purposeful availment analysis asks whether “‘a
nonresident’s conduct and connection to a forum are such that it could reasonably
anticipate being haled into court there.’” See Volkswagen Aktiengesellschaft, 669
S.W.3d at 413 (quoting Moncrief Oil Int’l, Inc., 414 S.W.3d at 152). “To show
purposeful availment, a plaintiff must prove that a nonresident defendant seeks a
benefit, advantage, or profit from the forum market.” In re Christianson Air
Conditioning & Plumbing, LLC, 639 S.W.3d 671, 679 (Tex. 2022) (citing Michiana
Easy Livin’ Country, Inc., 168 S.W.3d at 785). We apply three considerations to
determine purposeful availment:
• “[O]nly the defendant’s contacts with the forum are relevant, not the
unilateral activity of another party or a third person”;
• “The contacts relied upon must be purposeful,” not “random,
fortuitous, or attenuated”; and
• The defendant “must seek some benefit, advantage[,] or profit by
availing itself of [Texas’s] jurisdiction.”
See Volkswagen Aktiengesellschaft, 669 S.W.3d at 413-14 (quoting Moncrief Oil
Int’l, Inc., 414 S.W.3d at 151). “Where the defendant has ‘deliberately’ engaged in
significant activities within a state, he ‘manifestly has availed himself of the
privilege of conducting business there.’” Luciano, 625 S.W.3d at 9 (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985)).
19
Plaintiff’s Jurisdictional Allegations
“Because the plaintiff defines the scope and nature of the lawsuit, the
defendant’s corresponding burden to negate jurisdiction is tied to the allegations in
the plaintiff’s pleading.” Kelly, 301 S.W.3d at 658; Brenham Oil & Gas, Inc. v. TGS-
NOPEC Geophysical Co., 472 S.W.3d 744, 764 (Tex. App.—Houston [1st Dist.]
2015, no pet.). In the petition, Wilkison asserted the following jurisdictional
allegations:
[] The Court has personal jurisdiction over Defendants because
Defendants purposefully availed themselves of the privileges and
benefits of conducting business in Texas. Defendants targeted the
Texas market for their legal services, represented to the public that they
handled litigation in Texas, as well as all the other states comprising the
United States, communicated and contracted with Plaintiff, a Texas
resident, as part of “signing up” his Kratom wrongful death case, and
took specific, deliberate actions to financially profit from serving the
Texas legal market and from signing up Plaintiff’s wrongful death case.
Defendants requested and received a medical records authorization
from Plaintiff that would designate Defendants as the attorney
representative for Plaintiff, authorizing Defendants to review and
communicate with others regarding the health records of Plaintiff’s
deceased son, Cody.
[] The Court has personal jurisdiction over Defendants,
nonresidents, because Defendants committed a tort, which is the subject
of this suit, in whole or in part in Texas. Defendants misrepresented
their background, qualifications, and capacity to represent Plaintiff.
Defendants failed to timely file a lawsuit in Texas for the wrongful
death of Plaintiff’s son or provide proper disclosure and notification of
their unwillingness to take the necessary actions to preserve Plaintiff’s
rights and claims pertaining to the wrongful death of Plaintiff’s son.
[] The Court has personal jurisdiction over Defendants,
nonresidents, because Defendants engaged in business in Texas by
contracting with Plaintiff, a Texas resident, to provide legal services
and legal representation to Plaintiff in connection with claims arising
20
from the wrongful death of Plaintiff’s son, who was also a Texas
resident. Had Defendants filed a lawsuit within the statute of limitations
as Plaintiff engaged them to do, it would have been filed in Texas where
all parties and all acts and omissions giving rise to Plaintiff’s claims
occurred.
We conclude that the allegations in the petition are sufficient to carry the
Plaintiff’s initial burden to plead allegations sufficient to bring the Defendants
within the reach of the Texas long-arm statute. See Tex. Civ. Prac. & Rem. Code
Ann. § 17.042 (acts that may constitute “doing business” include “contract[ing] by
mail or otherwise with a Texas resident and either party is to perform the contract in
whole or in part in this state[]” or “commit[ting] a tort in whole or in part in this
state[]”); Evergreen Media Holdings, LLC v. FilmEngine Ent., LLC, No. 09-14-
00364-CV, 2016 Tex. App. LEXIS 10395, at *16 (Tex. App.—Beaumont Sept. 22,
2016, no pet.) (mem. Op.) (“A plaintiff satisfies this minimal requirement by an
allegation that the nonresident was doing business in Texas.”); Brenham Oil & Gas,
Inc., 472 S.W.3d at 763 (concluding that allegation that at “‘all times material to this
lawsuit, [defendant], was doing business in Houston, Harris County, Texas[,]’” was
sufficient to carry plaintiff’s initial burden to plead jurisdictional facts and shifted
burden to defendant); Huynh v. Nguyen, 180 S.W.3d 608, 619-20 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (stating plaintiff’s minimal pleading requirement
was satisfied by allegation that nonresident defendants were doing business in
Texas). Because Plaintiff met his initial burden in his petition, the burden shifted to
21
the Defendants to negate the Plaintiff’s alleged bases of jurisdiction. See Kelly, 301
S.W.3d at 6; Brenham Oil & Gas, Inc., 472 S.W.3d at 763.
A defendant negates jurisdiction on a factual basis by presenting evidence to
disprove the plaintiff’s jurisdictional allegations. Kelly, 301 S.W.3d at 659. “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. A defendant negates jurisdiction on a legal
basis by showing:
[E]ven if the plaintiff’s alleged facts are true, the evidence is legally
insufficient to establish jurisdiction; the defendant’s contacts with Texas
fall short of purposeful availment; for specific jurisdiction, that the claims
do not arise from the contacts; or that traditional notions of fair play and
substantial justice are offended by the exercise of jurisdiction.
Id.
Jurisdictional Challenge Made by Defendants
The burden shifted to the Defendants to negate the allegations in the petition
of facts pertaining to specific jurisdiction. Defendants challenged and denied the
jurisdictional allegations. Defendants attached the affidavit of Theodore Oshman as
an exhibit to their special appearance, and in the affidavit he states, in addition to the
allegations in Defendants’ Special Appearance, the Defendants do not maintain
registered agents for service of process in Texas, and Oshman, as well as the other
attorneys in the Oshman Firm and Oshman & Mirisola firm, are not licensed to
22
practice law in Texas and have not filed any cases in Texas state or federal court.
Oshman states in his affidavit that he first learned of Wilkison after receiving an
email on approximately June 5, 2019, with Wilkison’s contact information submitted
through a web form inquiry made by Wilkison regarding Wilkison’s son’s death,
which allegedly resulted from Cody’s ingestion of Kratom. According to Oshman’s
affidavit, Oshman then spoke with Wilkison over the phone and Oshman advised his
assistant to send Wilkson a “Kratom Questionnaire” so that he and the Oshman firm
could determine if the case was a case the firm should accept. Oshman
acknowledged that Wilkison sent his firm a copy of Cody’s autopsy report and a
HIPAA authorization, which authorized the release of Cody’s medical records. In
his affidavit, Oshman states that he used the information to investigate whether his
firm should accept Wilkison’s case, and he researched websites related to Kratom to
determine whether Kratom could be legally sold in Texas. According to Oshman’s
affidavit, he spoke to Wilkison via telephone on at least two occasions in early 2020.
In one of those conversations, Oshman states he informed Wilkison that he would
not accept Wilkison’s case based on his research and review of the documents and
information Wilkison had provided. Oshman also stated after he told Wilkson the
firm was rejecting the case, Wilkison texted him and acknowledged that Oshman
would not be filing the case. According to Oshman’s affidavit, at no time during any
23
telephone calls or email communications with Wilkison was he present in the state
of Texas. In a supplemental affidavit, Oshman stated the following, in pertinent part:
[] I never told Plaintiff that I was licensed to practice law in Texas.
[] At no time did I tell Plaintiff that I handled cases or practiced law in
the State of Texas.
[] At no time did I or any representative of the Oshman Firm tell
Plaintiff that any attorneys working for the Oshman Firm were licensed,
handled cases, or practiced law in the State of Texas.
[] At no time did I or any representative of Oshman & Mirisola tell
Plaintiff that any attorneys working for [] Oshman & Mirisola were
licensed, handled cases, or practiced law in the State of Texas.
[] I never told Plaintiff that I would handle or file his case.
[] I never told Plaintiff that I would handle or file his case in Texas.
[] I deny that Plaintiff’s case required filing a lawsuit in Texas. If a case
was pursued, a determination of where the case would be filed was
dependent on many things, including where the Kratom was
manufactured, which is unknown. Ultimately, I decided it was not a
viable case for me to accept and told Plaintiff in early 2020 that I was
not accepting his case.
[] No representative of the Oshman Firm told Plaintiff that the Oshman
Firm would handle or file Plaintiff’s case. No representative of the
Oshman Firm told Plaintiff that the Oshman Firm would handle or file
Plaintiff’s case in Texas.
[] No representative of Oshman & Mirisola told Plaintiff that Oshman
& Mirisola would handle or file Plaintiff’s case. No representative of []
Oshman & Mirisola told Plaintiff that Oshman & Mirisola would
handle or file Plaintiff’s case in Texas.
[] I never told Plaintiff that work was underway on this case before,
after, or in November of 2020.
[] Since its inception and including in 2019, The Oshman Firm’s
website has always stated that I am licensed to practice law in New
York and New Jersey. Exhibit C accurately represents portions of the
Oshman Firm’s website, and it contains the website address with the
date and time it was accessed.
[] The web form that Plaintiff submitted through the Oshman Firm
website required Plaintiff to agree to the terms and conditions by
checking the box for terms and conditions before submitting the form
24
through the website. Two of the terms and conditions to submitting the
web form states as follows:
NO LEGAL ADVICE
The material and information available on this Website is
intended for educational and informational purpose only
and does not constitute legal or other advice. Use of this
Website does not replace consultations with a qualified
legal professional and, as such, you should not rely upon
the information provided herein as advice.
In addition, the information made available on the Website
changes rapidly and, therefore, some of said information
may be out of date. You agree to bear all risk associated
with the use of, reliance on, any such information.
LAWYER-CLIENT RELATIONSHIP NOT CREATED
Your use of or access to this Website does not create a
lawyer-client relationship. Your use of this Website may
facilitate access to or communications with one or more
lawyers at The Oshman Firm by way of e-mail
transmissions or otherwise via this Website. Receipt of any
such communications or transmissions by any lawyer or
other member of The Oshman Firm does not create a
lawyer-client relationship.
The No Legal Advice and the Lawyer-Client Relationship Not
Created terms and conditions have been on the Oshman Firm’s website
since the inception of the website, including the year 2019. The
requirement to agree to the terms and conditions before submitting a
web form have also been on the Oshman Firm’s website since the
inception of the website, including the year 2019. Exhibit D accurately
represents portions of the Oshman Firm’s website, and it contains the
website address with the date and time it was accessed.
Attached as exhibits to the supplemental affidavit were Exhibits C and D from the
Oshman Firm’s website. Exhibit C shows Theodore Oshman’s picture, describes his
education and achievements, and states he is admitted to practice law in New Jersey,
New York, and the United States District Court for the Eastern and Southern
25
Districts of New York. Exhibit D shows the No Legal Advice and the Lawyer-Client
Relationship Not Created terms and conditions from the Oshman Firm’s website,
which is quoted above.
As evidence in support of his jurisdictional allegations, Wilkison attached
exhibits to his response to the special appearance, which include his sworn
declaration, pleadings in the case, Defendants’ discovery responses, text and email
communications between Wilkison and Oshman, printed portions of the Oshman
Firm’s website, the “Kratom Questionnaire” Wilkison completed and submitted to
the Defendants, information about the alleged seller of the Kratom consumed by
Cody, the HIPAA authorization form, and Cody’s autopsy report. According to
Wilkison’s sworn declaration, he wanted to find an attorney who was experienced
in handling death and personal injury claims related to the consumption of Kratom,
and he viewed the Oshman Firm’s website in 2019. According to Wilkison’s
declaration, Ted Oshman states in a video on the Oshman Firm’s website that the
law firm’s primary offices are in New York but also states that the firm “handle[s]
cases all over the United States through affiliated relationships with other attorneys
and with other law firms.” According to Wilkison, the website stated the firm was
experienced in handling Kratom cases and the website also included the following
two statements:
26
The Oshman Firm was founded over 35 years ago on a commitment to
service and excellence in all aspects of practicing law. Today, we
provide the same level of service to those in need in all 50 states.
...
The Oshman Firm is headquartered in New York City and operates a
nationwide practice helping Americans in all 50 states with legal
matters arising out of harm inflicted by careless corporations, reckless
people, and manufacturers.
According to his sworn declaration, Wilkison completed and submitted the website’s
interactive “free case evaluation” form in June of 2019, Wilkison received a
telephone call from Ted Oshman, and they exchanged personal cell phone numbers.
Wilkison’s declaration states that Oshman then sent him a “Kratom Questionnaire”
that Wilkison completed and submitted to Oshman in August of 2019, and the
questionnaire stated at the top “Confidential Attorney-Client Privileged
Document[.]” He further states that he also provided a signed “Authorization for
Release of Health Information Pursuant to HIP[A]A” to the Defendants at their
request, that there was a section of the form with blanks for the information of the
attorney or firm that would be reviewing Cody’s medical records, and Wilkison
expected that portion would be filled in by the Defendants. According to Wilkison,
it was his understanding, based at least in part on his communications with Ted
Oshman and the documents provided by the Defendants, that the Defendants were
representing him in the matter. Wilkison’s declaration also states the following about
the communications he had with Oshman:
27
[] I called Ted Oshman in November 2020, prior to
Thanksgiving. I called the 800-number for the firm. Mr. Oshman told
me that work was underway on my son’s Kratom case, and he pulled
up the details of my son’s case while we spoke. This conversation with
Ted Oshman occurred prior to the two-year anniversary of my son’s
death. Mr. Oshman referenced the holidays coming and said we should
touch base after the holidays were over. One of my texts in 2021, a true
and correct copy of which is contained in Exhibit 16 to the Response,
references a conversation with Mr. Oshman in “last November,” the
year was 2020. This is a reference to the call in November with Ted
Oshman that I have described in this paragraph.
[] Attached to the Response as Exhibit 16 are true and correct
copies of the text exchanges that I had with Ted Oshman.
[] I had multiple text communications with Ted Oshman,
inquiring about when activity would take place on my son’s death case.
On July 12, 2021, I contacted Ted Oshman to check on the status of the
case. Mr. Oshman said to me the next day: “will get back to you
tomorrow.” He failed to do so.
[] I contacted Mr. Oshman about my son’s Kratom case on
October 4, 2021.
[] I contacted Ted Oshman on April 14, 2022, to find out when
activity would take place on my case. Oshman told me that same day:
“let’s follow up over the weekend.” Oshman did not follow up as
promised.
[] On June 6, 2022, I again contacted Oshman about my son’s
death case.
[] On June 13, 2022, Oshman indicated to me by phone and a
follow-up email that Defendants would not be going forward with the
wrongful death lawsuit pertaining to my son’s passing. This was the
first time that the Oshman Firm[] informed me that they would not
litigate the legal claims arising out of my son’s death. A true and correct
copy of this email from Mr. Oshman communicating to me for the first
time that he and the Oshman Law Firm[] would not litigate my son’s
wrongful death case is attached to the Response as Exhibit 17.
[] In the last email from Mr. Oshman that terminated our
relationship, Exhibit 17, there is no mention by him of the statutes of
limitations that applied to the wrongful death claims for my son’s
passing. In fact, Mr. Oshman never mentioned the statutes of limitations
in any of our communications. . . .
28
Purposeful Availment Analysis
In a purposeful availment analysis, we focus not on the quantity of the
defendant’s contacts with Texas, but on the quality and nature of those contacts.
Moncrief Oil Int’l, Inc., 414 S.W.3d at 151. Only the defendant’s contacts are
relevant, not the unilateral acts of another party or a third person. See id.
Wilkison’s initial two allegations of purposeful availment by the Defendants
are as follows:
[] The Court has personal jurisdiction over Defendants because
Defendants purposefully availed themselves of the privileges and
benefits of conducting business in Texas. Defendants targeted the
Texas market for their legal services, represented to the public that they
handled litigation in Texas, as well as all the other states comprising the
United States, communicated and contracted with Plaintiff, a Texas
resident, as part of “signing up” his Kratom wrongful death case, and
took specific, deliberate actions to financially profit from serving the
Texas legal market and from signing up Plaintiff’s wrongful death case.
Defendants requested and received a medical records authorization
from Plaintiff that would designate Defendants as the attorney
representative for Plaintiff, authorizing Defendants to review and
communicate with others regarding the health records of Plaintiff’s
deceased son, Cody.
[] The Court has personal jurisdiction over Defendants,
nonresidents, because Defendants committed a tort, which is the subject
of this suit, in whole or in part in Texas. Defendants misrepresented
their background, qualifications, and capacity to represent Plaintiff.
Defendants failed to timely file a lawsuit in Texas for the wrongful
death of Plaintiff’s son or provide proper disclosure and notification of
their unwillingness to take the necessary actions to preserve Plaintiff’s
rights and claims pertaining to the wrongful death of Plaintiff’s son.
29
The facts show that Wilkison accessed the Defendants’ website seeking information
about Kratom and about potentially filing a lawsuit. Wilkison alleges that the
Oshman website states the Defendants litigate in all fifty states.
Oshman responded to Wilkison’s online form submission through the website
and had communications through text, telephone, and email with Wilkison. Oshman
filed an original and supplemental affidavit disputing the jurisdictional allegations.
Oshman describes his evaluation of the information sent to him by Wilkison and
states that the communications were made so that Oshman could determine whether
the case was a viable one for the Defendants to accept.
Relationship Between Oshman and Wilkison
Legal work performed outside Texas for a Texas resident is not a proper basis
for a trial court to exercise personal jurisdiction over the non-resident attorneys who
perform the legal work. See Ahrens & DeAngeli, P.L.L.C. v. Flinn, 318 S.W.3d 474,
484-85 (Tex. App.—Dallas 2010, pet. denied), overruled on other grounds by
Steward Health Care Sys., LLC v. Saidara, 633 S.W.3d 120, 127-29, 127 n.8 (Tex.
App.—Dallas 2021, no pet.). A non-resident attorney’s telephone calls and
correspondence directed to the state also are insufficient. Id. To establish purposeful
availment, non-resident attorneys generally must take affirmative action to promote
their business in the forum state. Id. (trial court lacked specific personal jurisdiction
over Washington law firm where the legal work at issue was performed in
30
Washington or Idaho and relevant communications were made from there to Texas);
Bergenholtz v. Cannata, 200 S.W.3d 287, 295 (Tex. App.—Dallas 2006, no pet.).
Here, Wilkison presented no contract, fee agreement, invoices, or pleadings
evidencing that any of the Defendants agreed to represent Wilkison in any litigation
in Texas. In fact, Wilkison concedes that the Defendants did not accept his case.
The Fort Worth Court of Appeals has concluded that even if a nonresident
attorney has an attorney-client relationship with a Texas resident, that fact standing
alone, does not provide the minimum contacts necessary to support personal
jurisdiction over the nonresident attorney. Gordon & Doner, P.A. v. Joros, 287
S.W.3d 325, 334-35 (Tex. App.—Fort Worth 2009, no pet.) (discussing Eakin v.
Acosta, 21 S.W.3d 405, 407 (Tex. App.—San Antonio 2000, no pet.), abrogated in
part on other grounds by BMC Software Belg., N.V., 83 S.W.3d at 794 n.1)). And
merely routine correspondence and interactions attendant to that attorney-client
relationship between a client with a nonresident attorney have been declared
insufficient to confer specific personal jurisdiction over a nonresident attorney.
Markette v. X-Ray X-Press Corp., 240 S.W.3d 464, 468-69 & n.2 (Tex. App.—
Houston [14th Dist.] 2007, no pet.).
Wilkison does not dispute that Oshman is not licensed to practice law in Texas
and that Oshman never filed a lawsuit in Texas on behalf of Wilkison or any other
clients. Wilkison also does not dispute the Defendants’ evidence that the terms and
31
conditions of the website he accessed stated that his use or access of the website did
not create an attorney-client relationship, and Wilkison does not dispute that the
website required him to accept these terms and conditions before submitting the form
through the website. That said, Wilkison primarily relies upon his contact with
Oshman via Oshman’s website, email, and telephone.
Website Activity and Communications
This Court has previously discussed interactive websites and personal
jurisdiction. In Skylift, Inc. v. Nash, No., 09-19-00389-CV, 2020 Tex. App. LEXIS
3191, at **1-3 (Tex. App.—Beaumont Apr. 16, 2020, no pet.) (mem. op.), the
plaintiffs, individually and as representatives of Charles Bagley’s estate, sued the
defendants, including Skylift, Inc., in Texas court after a piece of equipment
manufactured and sold to distributors by Skylift, Inc. allegedly struck and killed
Bagley while he was working at a refinery in Port Arthur, Texas. After Skylift, Inc.
filed a special appearance challenging general and specific jurisdiction, the plaintiffs
argued, among other things, that Skylift Inc.’s website provided a basis for
purposeful availment and specific jurisdiction because Skylift, Inc. advertised in
Texas. See id. at **6, 14. In examining whether the level of interactivity of Skylift,
Inc.’s website supported the exercise of specific jurisdiction, we explained:
When assessing contacts based on interactive websites, we
evaluate the defendant’s contacts according to a sliding scale similar to
the one used in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp.
1119 (W.D. Pa[.] 1997). See Washington DC Party Shuttle, LLC v.
32
IGuide Tours, 406 S.W.3d 723, 737 (Tex. App.—Houston [14th Dist.]
2011, pet. denied). “[T]he 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 Mfg.[] Co., 952 F. Supp. at 1124; Washington DC Party Shuttle,
406 S.W.3d at 737. On one end of the scale are passive websites, where
the foreign defendant simply posted information that can be viewed in
other jurisdictions, and these will not support the exercise of personal
jurisdiction. Washington DC Party Shuttle, 406 S.W.3d at 737. On the
other end of the scale are websites through which a nonresident
defendant has entered into contracts with residents of the forum state
“‘that involve the knowing and repeated transmission of computer files’
over the internet.” Id. (quoting Zippo Mfg.[] Co., 952 F. Supp. at 1124).
In between are cases involving interactive websites where a user can
exchange information with a host computer. Id. In those situations, “we
examine ‘the level of interactivity and commercial nature of the
exchange of information that occurs’ on the website.” Id. (quoting
Zippo Mfg.[] Co., 952 F. Supp. at 1124).
It is Skylift’s purposeful contacts with Texas, not nationally, that
are relevant. See J. McIntyre Machinery, Ltd.[] v. Nicastro, 564 U.S.
873, 886 [] (2011); Trokamed GmbH v. Vieira, No. 01-17-00485-CV,
2018 Tex. App. LEXIS 3901, [at **11-12] (Tex. App.—Houston [1st
Dist.] May 31, 2018, no pet.) (mem. op.) (noting the nonresident
defendant sought a national publication, not a Texas one). While
anyone nationwide may have been able to access the website, there is
no evidence that Skylift specifically targeted Texas with advertising.
The website was akin to a manufacturer placing advertisements in a
nationally circulated magazine as opposed to one circulated solely in
Texas. See C.W. Brown Mach. Shop, Inc. v. Stanley Machinery Corp.,
670 S.W.2d 791, 792, 794 (Tex. App.—Fort Worth 1984, no pet.)
(concluding no jurisdiction existed when the nonresident defendant
advertised in national magazines but did not use local, regional, or state
advertising media to sell its product); see also CMMC[ v. Salinas], 929
S.W.2d [435,] 439 [(Tex. 1996)] (determining there was no jurisdiction
and noting that there was no effort to market in Texas except
advertisements placed in magazines with national circulation). Skylift’s
current president testified that no sales or contracts are consummated
through the website. Rather, people who have questions are inquiries
may submit them. Additionally, Skylift’s former president averred in
his affidavit that Skylift did not advertise or solicit business in Texas.
33
We conclude the level of interactivity on Skylift’s website does not
support the exercise of specific jurisdiction.
Id. at **15-17. Also, in Riviera Operating Corp. v. Dawson, 29 S.W.3d 905, 911
(Tex. App.—Beaumont 2000, pet. denied) (a general jurisdiction case) and Buckeye
Aviation, L.L.C. v. Barrett Performance Aircraft, Inc., No. 09-10-00247-CV, 2011
Tex. App. LEXIS 4506, at **19-22 (Tex. App.—Beaumont June 16, 2011, pet.
denied) (mem. op.) (which involved both general and specific jurisdiction), we
explained that the exercise of personal jurisdiction based on an interactive website
is not appropriate where there is no evidence that the defendant engaged in business
transactions or entered into contracts over the internet with a Texas resident.
Here, the record shows that the Defendants’ website is to some degree an
interactive website. Wilkison accessed and located the website via a search he
conducted on the internet. Wilkison then chose to submit a form through the website,
Wilkison exchanged emails with Oshman, and telephone communications between
Wilkison and Oshman followed. The evidence in the record shows that the website
is a national website, not a Texas one. The website included a disclaimer that the use
and access of the website did not create an attorney-client relationship, and the form
Wilkison submitted expressly notified Wilkison that it did not create an attorney-
client relationship. Theodore Oshman stated in his affidavit that neither he nor
anyone with the Oshman Firm or Oshman & Mirisola ever told Wilkison that they
handled cases in Texas, were licensed in Texas, or practiced law in Texas. There is
34
no evidence on this record that Wilkison signed any agreement for representation by
any of the Defendants. And there is no evidence in the record that the Defendants
targeted Texas or Texas residents. So, this website, like the ones discussed above,
were in the middle of the sliding scale. After examining the level of interactivity and
the commercial nature of the exchange of information that occurs on the website, we
conclude that the level of interactivity here does not support the exercise of specific
jurisdiction. See Skylift, Inc., 2020 Tex. App. LEXIS 3191, at **15-17; Buckeye
Aviation, L.L.C., 2011 Tex. App. LEXIS 4506, at **19-22; Riviera Operating Corp.,
29 S.W.3d at 911.
Emails, Telephone Calls, and Forms Filled Out by Wilkison
Wilkison also contends that his emails and telephone calls support personal
jurisdiction. The record shows there were emails and telephone calls exchanged
between the parties, and Oshman agrees but emphasizes that Oshman was not
located in Texas when any of the phone calls or emails were exchanged. The mere
exchange of emails or telephone calls between a nonresident and a Texas resident
does not suffice to show the nonresident purposefully availed himself of doing
business in Texas. See, e.g., Old Republic Nat’l Title Ins. Co., 549 S.W.3d at 560
(“[o]n their own, numerous telephone communications with people in Texas do not
establish minimum contacts[]”); Majors Mgmt., LLC v. Price & Co., No. 09-17-
00063-CV, 2018 Tex. App. LEXIS 1103, at **20-21 (Tex. App.—Beaumont Feb.
35
8, 2018, no pet.) (mem. op.) (where nonresident defendant’s agents or
representatives never entered Texas, the telephone calls, email messages, and wire
transfers from nonresident defendant to Texas resident were insufficient to
demonstrate the nonresident defendant purposefully did business in a Texas forum);
Bryan v. Gordon, 384 S.W.3d 908, 916-17 (Tex. App.—Houston [14th Dist.] 2012,
no pet.) (making multiple telephone calls and sending emails to a Texas resident was
insufficient for specific jurisdiction); KC Smash 01, LLC v. Gerdes Hendrichson,
Ltd., L.L.P., 384 S.W.3d 389, 393 (Tex. App.—Dallas 2012, no pet.) (finding no
purposeful availment where nonresident defendant never entered the state, and its
contacts with Texas resident were through telephone and email communications and
the sending of payments to the plaintiff in Texas); Ahrens & DeAngeli, P.L.L.C., 318
S.W.3d at 484 (“[t]elephone calls and correspondence as activities directed at the
forum are generally insufficient[]” to establish minimum contacts); Olympia Capital
Assocs., L.P. v. Jackson, 247 S.W.3d 399, 418 (Tex. App.—Dallas 2008, no pet.)
(holding that neither the existence of a contract between the nonresident defendant
and a resident nor engaging in communications related to that contract are sufficient
to establish the minimum contacts necessary to support the exercise of personal
jurisdiction over the nonresident defendants); Alenia Spazio, S.p.A. v. Reid, 130
S.W.3d 201, 213 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“numerous
36
telephone and facsimile communications with people in Texas relating to an alleged
contract do not establish minimum contacts”).
Next, Wilkison asserts that he filled out a Kratom questionnaire provided on
Oshman’s website, mailed information to Oshman, and signed a HIPAA
authorization form to allow Oshman to obtain medical records. The “Kratom
Questionnaire” is a five-page form with blanks completed and signed by Wilkison,
is labeled at the top “Confidential Attorney-Client Privileged Document[,]” and asks
for information related to Wilkison’s contact information and Cody’s purchase and
consumption of Kratom and cause of death. The “Authorization for Release of
Health Information Pursuant to HIPAA” form includes blank boxes for the patient’s
name, date of birth, social security number, and address, which was completed with
Cody’s information. The form authorizes the release of certain records (here initials
“RW” were indicated in the blanks next to records related to alcohol/drug treatment,
mental health information, and HIV-related information) to the person or entity
listed in box 8 (which in this instance was left blank), gave authorization for an
identified individual health care provider (which in this instance was left blank) to
release such information, and authorized that the health information could be
discussed with the identified attorney or governmental agency (which in this
instance was left blank). This HIPAA authorization form that Wilkison relies on for
his argument that the Defendants misrepresented that they were representing him
37
shows that the Defendants never filled in the blank with their information
designating them as Wilkison’s counsel, and we have nothing in the record showing
that the Defendants ever used the HIPAA authorization to obtain medical records on
Wilkison’s son. While it is true that paperwork was signed by Wilkison in Texas, it
is of no jurisdictional importance because we look at the Defendants’ conduct, and
not Wilkison’s. See Volkswagen Aktiengesellschaft, 660 S.W.3d at 413-14. The
online inquiry and form filled out by Wilkison in Texas depicts Wilkison’s activities
in Texas, but it does not demonstrate or establish defendants engaged in conduct or
activities in Texas.
Wilkison’s Allegation That the Suit Would Have Been Filed in Texas
Next, Wilkison alleges that the Defendants purposefully availed themselves
of the privilege of conducting activities within Texas because if they had filed suit
then the suit would have been filed in Texas. “[A] plan[] for future conduct directed
at the forum is not sufficient to establish present personal jurisdiction on the basis
that a tort has been committed in Texas.” Hatzenbuehler v. Essig, 526 S.W.3d 657,
665 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (op. on reh’g) (citing M&F
Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 888 (Tex.
2017)). Furthermore, Wilkison disputed in his affidavit that a suit would have been
filed in Texas.
38
Reliance on LG Chem and Cartlidge
In Wilkison’s Supplement to his Motion for Reconsideration, he argued that,
under the LG Chem opinion, whether the Defendants were intending through their
communications with Appellee to file a case in Texas was irrelevant and should be
disregarded. The trial court stated it relied on the analysis in the LG Chem and
Cartlidge cases in vacating its earlier order and denying the Defendants’ special
appearance. We find both cases distinguishable, and we conclude neither case
supports a finding of purposeful availment here.
In LG Chem, the plaintiff was allegedly injured when a lithium-ion battery he
used to charge his e-cigarette allegedly “exploded” in his pocket. 670 S.W.3d at 344.
The battery was allegedly manufactured by LG Chem, Ltd. (“LG Chem”), a
company headquartered in South Korea, and then distributed by its American
distributor, LG Chem America, Inc. (“LGCAI”). Id. The plaintiff brought products-
liability claims against LG Chem, LGCAI, as well as the manufacturer of the e-
cigarette and the store that sold the plaintiff the battery. Id. In their special
appearances, LG Chem and LGCAI did not dispute that they purposefully availed
themselves of the privilege of conducting activities through the sale, shipment, or
distribution of model 18650 batteries to Texas manufacturers. Id. at 348. Instead,
they argued that their contacts with Texas should not subject them to personal
jurisdiction because the plaintiff’s claims did not arise out of and were not
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sufficiently related to their contacts. Id. at 345, 348. When analyzing the relatedness
prong, the Texas Supreme Court disagreed with the defendants’ argument that the
Court must focus on the absence of any intent to serve the market of individual
consumers. Id. at 349-51. In affirming the trial court’s denial of LG Chem’s and
LGCAI’s special appearances, the Texas Supreme court held that, because LG Chem
and LGCAI did not dispute that they purposefully availed themselves of the privilege
of doing business in Texas by selling and distributing model 18650 lithium-ion cells
in Texas and because the Court determined the plaintiff’s claims were sufficiently
related to the LG Chem’s and LGCAI’s undisputed contacts with Texas to satisfy
due process, Texas courts have specific personal jurisdiction over LG Chem and
LGCAI. Id. at 348-51.
LG Chem is distinguishable from the case before us. Unlike the facts in LG
Chem, the present case is not a products-liability case, and the Defendants have never
conceded any contacts with Texas sufficient for purposeful availment. Moreover,
the pleadings and evidence submitted by the defendants here demonstrate that the
defendants dispute that they have purposefully availed themselves of doing business
in Texas and maintain that there is a lack of sufficient contacts with Texas to
establish purposeful availment.
In Cartlidge, two plaintiffs sued Cartlidge in Harris County, Texas, for legal
malpractice. 9 S.W.3d at 344. The plaintiffs engaged Cartlidge to represent them in
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a lawsuit against DuPont and Methodist Hospital in a lawsuit in Nevada. Id. The
plaintiffs, one of whom was a Texas resident, solicited Cartlidge to represent them
and file suit in Nevada through Lowell Cage, a Texas attorney, who was familiar
with Cartlidge’s work in products liability litigation in Nevada. Id. Cartlidge, who is
not licensed to practice law in Texas but is licensed in Nevada, represented at least
twenty-five clients from around the country in similar litigation. Id. Cartlidge sent
documents to Texas which constituted solicitation offers to provide legal
representation for the plaintiffs in the litigation. Id. Cartlidge sent a letter agreement
to the plaintiffs in which he stated that he was representing them. The letters were
on Cartlidge’s letterhead and set forth the fee arrangement, which involved splitting
the attorneys’ fees between Cartlidge and Cage. The letters also designated Cartlidge
as lead counsel. Id. Cartlidge also sent the plaintiffs retainer agreements, which were
on his letterhead, stating that he would represent them in the matter and that
authorized him to prosecute the case. The agreements, however, did not specify that
Cartlidge would only represent the plaintiffs in Nevada. Id. The letter agreements
and retainer agreements were sent to Houston for the plaintiffs’ signatures, the
plaintiffs signed them in Houston, and the plaintiffs returned the signed agreements
to Cartlidge. Id. It was undisputed that Cartlidge neither signed the contracts in
Texas nor performed any of his obligations under the contracts in Texas. Id.
Cartlidge had other contacts with Texas for clients other than the plaintiffs involved
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in the suit, for example there was evidence that he was involved in litigating a
product liability case for ninety-three clients against Methodist Hospital in Harris
County, representing Texas residents in product liability litigation that was filed in
Nevada, and that he had filed sixty-one bankruptcy claims against a products liability
litigation defendant on behalf of clients in Harris County. Id. at 345.
The plaintiffs filed suit against Cartlidge and Cage in Harris County and
asserted that Cartlidge filed claims on the plaintiffs’ behalf against Methodist
Hospital in Nevada, but that those claims were dismissed because the Nevada courts
did not have jurisdiction over the hospital. Id. The plaintiffs alleged that Cartlidge
failed to either refile the case in Texas where the hospital was subject to the
jurisdiction of the courts or refer the case to someone who could refile in Texas, and
that Cartlidge allowed the claim to lapse without advising them that the claim could
have been filed in Texas. Id. In affirming the trial court’s denial of Cartlidge’s
special appearance, the Fourteenth Court of Appeals explained that Cartlidge had a
substantial connection with Texas necessary for a finding of minimum contacts and
that the plaintiffs’ claims arose out of the contracts:
Here, Cartlidge is being sued because of alleged legal
malpractice committed by him during the course of his legal
relationship with [the plaintiffs]. During the course of this legal
relationship, Cartlidge corresponded with [the plaintiffs], either
through Lowell Cage or directly, several times. The acceptance letters
and retainer agreements that constituted contracts between the parties,
and the progress reports Cartlidge admitted he sent [the plaintiffs],
taken together, demonstrate Cartlidge had purposeful, repeated, if not
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frequent, contacts with the State. Plaintiffs’ claims below against
Cartlidge arise out of the contracts they entered into with him in Texas.
Thus, it is irrelevant to our analysis where the alleged tort of
malpractice occurred.
With respect to interstate contractual obligations, the Supreme
Court has emphasized that parties who reach out beyond one State and
create continuing relationships and obligations with citizens of another
State[] are subject to regulation and sanctions in the other State for
consequences of their activities. Indeed, so long as it creates a
substantial connection with the forum State, even a single act can
support jurisdiction. Cartlidge’s contacts with Texas consist of the four
contracts, two with each client, and his subsequent correspondence with
them regarding the progress of their lawsuits. . . .
....
. . . . It is sufficient for purposes of due process minimum contacts
that the suit brought by [the plaintiffs] is based on contracts which have
a substantial connection with Texas. Because the substantial connection
between Cartlidge and his clients in Texas came about by his actions
which were purposefully directed toward Texas, his contacts with this
State are not random, fortuitous or attenuated. Indeed, Cartlidge’s
contacts with Texas are imbued with a quality and nature that insulates
them from any such challenge. Inasmuch as these contracts had a
substantial connection with Texas, Cartlidge could foresee that if his
performance were deficient it would inflict economic injury on a
resident of Texas. . . .
The quality and nature of Cartlidge’s contacts with Texas,
enhanced by the interest of Texas in a suit involving a nonresident
attorney representing individuals in Texas, provide an adequate basis
for the assertion of jurisdiction in this case. Accordingly, we find that
Cartlidge’s purposeful contacts with [the plaintiffs] in Texas
constituted sufficient minimum contacts to support specific jurisdiction
and satisfy due process requirements.
Id. at 348-49 (internal footnotes and citations omitted).
In the present case, unlike the facts in Cartlidge, Wilkison and the Defendants
did not execute a client representation agreement, the Defendants did not file any
lawsuits on behalf of the plaintiff, and Defendants had no other significant contacts
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with Texas. Here, unlike Cartlidge, the quality and nature of the Defendants’
contacts with Texas do not provide an adequate basis to support a finding of specific
personal jurisdiction. See also Rana Shipping Transp., Indus., & Trade, Ltd. v.
Davey & Brogan, P.C., No. 05-22-00446-CV, 2023 Tex. App. LEXIS 1805, at **10-
12 (Tex. App.—Dallas Mar. 21, 2023, no pet.) (mem. op.) (in plaintiffs’ legal
malpractice suit, attorney’s and defendant-firm’s contacts were insufficient to
establish purposeful availment where the plaintiffs did not assert that the defendant-
firm sought clients or affirmatively promoted its business in Texas, the attorney’s
only contacts with Texas were his communications with Texas-based individuals in
furtherance of the legal work he was retained to do, and he performed the legal work
in Virginia). After carefully examining the evidence presented by the parties
pertaining to specific jurisdiction over the Appellants, we conclude that LG Chem
and Cartlidge are distinguishable, and the evidence does not support the trial court’s
finding of specific jurisdiction on this record.
Conclusion
We conclude that Wilkison failed to meet his burden to present evidence
negating the Defendants’ challenge to Wilkison’s jurisdictional allegations. See
Kelly, 301 S.W.3d at 659; Brenham Oil & Gas, Inc., 472 S.W.3d at 764. We find the
trial court erred in denying the special appearance because the Defendants did not
purposefully avail themselves of the privilege of conducting activities in Texas, and
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the Defendants lack sufficient minimum contacts to support specific jurisdiction in
Texas. See Moki Mac, 221 S.W.3d at 575. Accordingly, we need not address whether
the suit arises from or relates to the Defendants’ contacts with the forum. 7 See id. at
579 (specific-jurisdiction analysis has two co-equal components, purposeful
availment and relatedness). We sustain the Appellants’ issue on appeal. We reverse
the trial court’s order denying Appellants’ special appearance and render the
judgment the trial court should have rendered, dismissing Appellee’s claims against
Appellants for lack of personal jurisdiction. See Tex. R. App. P. 43.2(c).
REVERSED AND RENDERED.
LEANNE JOHNSON
Justice
Submitted on December 21, 2023
Opinion Delivered March 14, 2024
Before Golemon, C.J., Johnson and Wright, JJ.
7
Having concluded that there is no basis for specific jurisdiction over the
Appellants, we need not address the Appellants’ complaint that the exercise of
personal jurisdiction would offend traditional notions of fair play and substantial
justice because it would not afford Appellants any greater relief. See Tex. R. App.
P. 47.1; Booth v. Kontomitras, 485 S.W.3d 461, 488 n.14 (Tex. App.—Beaumont
2016, no pet.).
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