Court of Appeals of Texas, Second District, Fort Worth
ASHOK B. PATEL, RAMESH PATEL, NARESH PATEL, AND MANILAL B. PATEL APPELLANTS
ROGER PATE AND PATE DEVELOPMENT, INC. APPELLEES
THE 17TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.
MEMORANDUM OPINION 
LIVINGSTON CHIEF JUSTICE
resolution of this interlocutory appeal from the denial of
special appearances turns on an application of the
burden-shifting standards described in Kelly v. General
Interior Construction, Inc., 301 S.W.3d 653, 658-59
(Tex. 2010). Because the appellees in this case brought
forward legally and factually sufficient evidence in support
of their jurisdictional allegations, we affirm.
and Procedural Background
Pate, through his company Pate Development, Inc. (together,
Pate), is a general contractor who invested in and helped
develop several hotel properties with Ramesh, Amrit, Naresh,
Ashok, and Manilal Patel. In 2005 and 2007, they formed
various entities to own and invest in these projects,
including Nextgen Hospitality, LLC, Lotustel Group, LLC,
Premier Hotels Group, Inc., Bridged Hybrid Financing, LLC,
and Premium Hotel Management, Inc. (the Hotel Entities).
According to Roger, all of the Hotel Entities engaged Pate to
2011, an accounting dispute arose among Pate and the members
of the Hotel Entities. Eventually, Pate sued the Hotel
Entities and the Patels individually alleging that they
engaged him "for procurement, development, or
rehabilitation" of hotel property and did not pay him
what they promised. He also sought reimbursement of part of
his capital contribution to Nextgen, which he contended that
he had overpaid. Pate brought causes of action for breach of
contract, quantum meruit, fraud by representation and
omission, negligent misrepresentation, an accounting of all
capital contributions to the Hotel Entities, a declaratory
judgment of his rightful ownership interests in each
respective entity, and dissolution of all the Hotel Entities;
Pate also sought attorney's fees and exemplary damages.
Nonresidents Ramesh, Naresh, Ashok, and
Manilal (the Nonresidents) each filed a special appearance,
in which they denied ever conducting business in Texas in
their individual capacities and denied ever committing a tort
in Texas. The trial court held a series of
evidentiary hearings on the special appearances, and--in
between the second and third hearings--Pate filed a second
amended petition alleging facts to support the exercise of
personal jurisdiction over the Nonresidents. After the third
evidentiary hearing, the trial court denied the special
appearances as to all of the Nonresidents, and they filed
this accelerated interlocutory appeal. See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp.
2016). Neither party requested findings of fact and
conclusions of law.
a trial court has personal jurisdiction over a defendant is a
question of law, which we review de novo based on all of the
evidence. Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 574 (Tex. 2007); TravelJungle v. Am.
Airlines, Inc., 212 S.W.3d 841, 845 (Tex. App.--Fort
Worth 2006, no pet.). We may review the trial court's
resolution of disputed fact issues for legal and factual
sufficiency under the same standards of review that we apply
in reviewing a jury's or trial court's findings of
fact at trial. TravelJungle, 212 S.W.3d at 845.
When, as in this case, the trial court does not issue
findings of fact and conclusions of law, all facts necessary
to support the trial court's order that are supported by
the evidence are implied. BMC Software Belgium, N.V.
v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
supreme court has explained how the burdens shift between the
plaintiff and defendant in a special appearance:
Our special-appearance jurisprudence dictates that the
plaintiff and the defendant bear shifting burdens of proof in
a challenge to personal jurisdiction. We have consistently
held that the plaintiff bears the initial burden to plead
sufficient allegations to bring the nonresident defendant
within the reach of Texas's long-arm statute. 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. 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
If the plaintiff fails to plead facts bringing the defendant
within reach of the long-arm statute (i.e., for a tort claim,
that the defendant committed tortious acts in Texas), the
defendant need only prove that it does not live in Texas to
negate jurisdiction. When the pleading is wholly devoid of
jurisdictional facts, the plaintiff should amend the pleading
to include the necessary factual allegations, thereby
allowing jurisdiction to be decided based on evidence rather
than allegations, as it should be.
The defendant can negate jurisdiction on either a factual or
legal basis. 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 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
Kelly, 301 S.W.3d at 658-59 (footnotes omitted)
sustain a legal sufficiency challenge only when (1) the
record discloses a complete absence of evidence of a vital
fact, (2) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a
vital fact, (3) the evidence offered to prove a vital fact is
no more than a mere scintilla, or (4) the evidence
establishes conclusively the opposite of a vital fact.
Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620
(Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez,
977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526
U.S. 1040 (1999). In determining whether there is legally
sufficient evidence to support the finding under review, we
must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary
to the finding unless a reasonable factfinder could not.
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d
649, 651 (Tex. 2007); City of Keller v. Wilson, 168
S.W.3d 802, 807, 827 (Tex. 2005).
reviewing an assertion that the evidence is factually
insufficient to support a finding, we set aside the finding
only if, after considering and weighing all of the evidence
in the record pertinent to that finding, we determine that
the credible evidence supporting the finding is so weak, or
so contrary to the overwhelming weight of all the evidence,
that the answer should be set aside and a new trial ordered.
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.
1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d
821, 823 (Tex. 1965).
court may assert personal jurisdiction over a nonresident
defendant only if the requirements of due process under the
Fourteenth Amendment and the Texas long-arm statute are
satisfied. U.S. Const. amend. XIV, § 1; Tex. Civ. Prac.
& Rem. Code Ann. §§ 17.041-.045 (West 2015);
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 413-14, 104 S.Ct. 1868, 1871-72 (1984);
Moki Mac, 221 S.W.3d at 574.
Texas long-arm statute governs Texas courts' exercise of
jurisdiction over nonresident defendants. Tex. Civ. Prac.
& Rem. Code Ann. §§ 17.041- .045; BMC
Software, 83 S.W.3d at 795; TravelJungle, 212
S.W.3d at 845. That statute permits Texas courts to exercise
jurisdiction over a nonresident defendant who "does
business" in Texas. Tex. Civ. Prac. & Rem. Code Ann.
§ 17.042; BMC Software, 83 S.W.3d at 795;
TravelJungle, 212 S.W.3d at 845. The statute lists
some activities that constitute "doing business" in
Texas, including committing a tort, in whole or in part, in
Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042;
Moki Mac, 221 S.W.3d at 574; TravelJungle,
212 S.W.3d at 845. The list of activities set forth in
section 17.042 is not exclusive, however. BMC
Software, 83 S.W.3d at 795; TravelJungle, 212
S.W.3d at 845.
the long-arm statute reaches "as far as the federal
constitutional requirements for due process will allow,
" a Texas court may exercise jurisdiction over a
nonresident if doing so "comports with federal due
process limitations." TV Azteca v. Ruiz, 490
S.W.3d 29, 36 (Tex. 2016) (quoting Spir Star AG v.
Kimich, 310 S.W.3d 868, 872 (Tex. 2010)), cert.
denied, 2017 WL 2722433 (June 26, 2017). Therefore, in
determining whether such requirements have been met, we rely
on precedent from the United States Supreme Court and other
federal courts, as well as our own state's decisions.
BMC Software, 83 S.W.3d at 795;
TravelJungle, 212 S.W.3d at 845-46.
process is satisfied when (1) the 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. Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945);
TV Azteca, 490 S.W.3d at 36; TravelJungle,
212 S.W.3d at 846. A nonresident defendant who has
"purposefully availed" himself of the privileges of
conducting business in a foreign jurisdiction, invoking the
benefits and protections of its laws, has sufficient minimum
contacts with the forum to confer personal jurisdiction on a
court in that forum. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474-76, 105 S.Ct. 2174, 2183-84 (1985);
Moki Mac, 221 S.W.3d at 575. Three factors important
in determining whether a defendant has purposefully availed
itself of the forum are (1) only the defendant's contacts
with the forum count, (2) the acts relied on must be