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Simmons v. Boyd Gaming Corp.

Court of Appeals of Texas, Ninth District, Beaumont

August 3, 2017

MICHAEL SIMMONS, Appellant
v.
BOYD GAMING CORPORATION AND DELTA DOWNS RACETRACK CASINO AND HOTEL, Appellees

          Submitted on March 29, 2017

         On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-198, 636

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON, Justice.

         Michael Simmons appeals the trial court's interlocutory order granting the joint special appearance filed by Boyd Gaming Corporation and Delta Downs Racetrack Casino and Hotel. The trial court did not reduce its findings and conclusions to writing, but its ruling implies that it found that the two businesses were not incorporated in Texas, and that the two businesses did not have their principal place of business there. Because the evidence failed to show that the businesses were at home in Texas, and because Simmons failed to demonstrate that his claims against the businesses had a substantial connection with the forum in Texas, we affirm the order granting the businesses' request to be dismissed from the case.

         Background

         On May 28, 2016, Billy Eston Horton[1] drove to Vinton, Louisiana to gamble at Delta Downs Racetrack Casino and Hotel (Delta Downs).[2] According to the allegations in the Plaintiff's Second Amended Original Petition, [3] while at Delta Downs, Horton was served alcoholic beverages after it would have been obvious to the individuals who were serving him that he was intoxicated. The evidence before the trial court when it ruled on the joint special appearance includes two affidavits[4]that Horton executed, which Simmons filed to support his argument that the trial court could exercise jurisdiction over Boyd Gaming and Delta Downs. Both of Horton's affidavits indicate that he had been drinking at Delta Downs before the collision occurred, but both are silent on the subject of whether Horton became intoxicated at the casino, whether Horton was aware he was intoxicated when he left the casino, or how those serving him might have known that he was intoxicated. Nevertheless, several facts were undisputed in the hearing, including that Horton owned the car he was driving when the collision occurred, that Simmons suffered injuries when Horton's vehicle struck the vehicle Simmons was driving, that Delta Downs' employees served Horton beverages containing alcohol while he was at Delta Downs, and that Horton's and Simmons' vehicles collided in Jefferson County, Texas. After the collision, Simmons sued Horton, Boyd Gaming and Delta Downs in a district court in Jefferson County, Texas claiming that their negligence proximately caused the injuries that he suffered in the collision. Although Simmons' live pleadings allege a general negligence claim, he characterized his claims against Boyd Gaming and Delta Downs during the hearing and in his appeal as claims based on violations of the Texas Dram Shop Act. See Tex. Alco. Bev. Code Ann. § 2.02(b)(1), (2) (West 2007) (creating a statutory cause of action against a person who provides, sells or serves alcohol to a person when it was "apparent to the provider that the individual" served an "alcoholic beverage was obviously intoxicated" if the individual's intoxication was a proximate cause of the plaintiff's injuries).

         In response to Simmons' suit, Boyd Gaming and Delta Downs filed a joint special appearance.[5] In the joint special appearance, Boyd Gaming and Delta Downs alleged that they were not Texas residents, that they had not purposefully performed an act or transaction in Texas that would allow a Texas court to exercise jurisdiction over them, and that no substantial connection existed between Simmons' claims against them and their conduct in Texas.

         Additionally, Boyd Gaming and Delta Downs supported their special appearance with an unsworn declaration executed by Diane Mitnik, their authorized representative. Mitnik's declaration states that Boyd Gaming is a Nevada corporation whose principal place of business is in Las Vegas, Nevada, and that Delta Downs is a Louisiana limited liability company whose principal place of business is in Vinton, Louisiana. Mitnik's declaration further states that Boyd Gaming and Delta Downs do not have registered agents in Texas, that the officers of the businesses do not reside in Texas, that neither business has offices, bank accounts, or property in Texas, that the two businesses do not pay taxes in Texas, and that neither business purposefully directed its activities toward Texas "regarding any facts or circumstances of this case[.]" The statements in Mitnik's unsworn declaration rebutted Simmons' allegations that Boyd Gaming and Delta Downs committed acts in Texas that were relevant to Simmons' Dram Shop Act claims.

         Simmons filed a number of documents before the hearing that he obtained in discovery. The documents Simmons filed include an affidavit from Newton Schwartz, the principal attorney in the firm representing Simmons. Schwartz's affidavit summarizes the documents that Simmons acquired in discovery. Prior to the hearing on the joint special appearance, Simmons also filed two affidavits that Horton executed before the hearing. These indicate that Horton had been drinking at Delta Downs on the evening of the collision, that Horton received advertising from Boyd Gaming and Delta Downs that was e-mailed to him, that these e-mails promoted the benefits of his membership with Boyd Gaming as a B Connected Cardmember, and that the benefits he was receiving as a B Connected Cardmember "were the enticements [that caused] me to travel to the casino on the evening in question as those same enticements have caused me to participate in gaming activities at the casino prior to the date of this incident." However, the e-mails that Horton claimed he received that prompted him to go to Delta Downs in the period relevant to his collision with Simmons were not included among the documents the trial court was asked to consider in ruling on the joint special appearance. Additionally, the evidence in the record regarding the benefits enjoyed by Boyd Gaming's B Connected Cardmembers shows that the privileges of that type of membership entitle an individual to have a personalized home page with Boyd Gaming's online player community, to have access to Boyd Gaming's offers and promotions, to receive the best rates available on hotel rooms, to receive offers, promotional calendars, and real-time alerts about current offers, to allow members to view the balances in their accounts, to have real-time account access, to access hotel and dining reservations online, to allow members to locate their favorite slot machines at all Boyd Gaming casinos, and to have access to webcams featuring live shots from Boyd gaming casinos around the country. In summary, the marketing material that is actually in the record shows marketing that generally promotes gaming at Boyd Gaming casinos, and there was no advertising or e-mail solicitations in the record showing that Boyd Gaming and Delta Downs advertised the availability of complimentary alcoholic beverages in Texas to the public or to those with B Connected memberships.

         The evidence before the trial court included vendor summaries showing that Delta Downs purchased over $6, 000, 000 in goods and services from Texas vendors in the twenty-nine month period before the collision occurred, and that Delta Downs spent approximately $2, 500, 000 advertising in Southeast Texas over a twenty-seven month period ending on June 30, 2016. However, the summaries showing that Delta Downs did business with Texas-based businesses do not reflect whether those contracts were performed in Texas or whether they were performed in Louisiana. Nonetheless, the record does not show that the trial court refused to consider any of the documents the parties submitted to support their arguments on the merits of the joint special appearance, so we presume the trial court considered all of the documents that were before it when it decided to grant the joint special appearance. See Tex. R. Civ. P. 120a(3).

         The trial court conducted a hearing on Boyd Gaming's and Delta Downs' joint special appearance in November 2016. No witnesses testified during the hearing. Approximately one week after the hearing, the trial court granted the joint special appearance, dismissing Boyd Gaming and Delta Downs from Simmons' suit.

         After the trial court dismissed the case, Simmons asked the trial court to issue findings of fact and conclusions of law to explain the reasons for its ruling. See Tex. R. Civ. P. 296 (requiring that a party file its request for findings within twenty days of the trial court's ruling). Although Simmons asked the trial court for written findings, the record reflects that no written findings or conclusions were filed. Simmons timely filed his notice of appeal, authorizing our review of the trial court's order. See Tex. R. App. P. 26.1(b) (requiring that a party file a notice of appeal from an interlocutory order that is immediately appealable within twenty days after the order is signed).

         Issues Presented

         On appeal, Simmons argues the trial court erred by dismissing his claims against Boyd Gaming and Delta Downs because the trial court had both general and specific jurisdiction over Boyd Gaming and Delta Downs with respect to his Dram Shop Act claims. While Simmons' brief identifies seven separate issues, his issues actually present only two arguments that the pleadings and the evidence relevant to the resolution of the joint special appearance demonstrated that the trial court had the right to exercise general and specific jurisdiction over his Dram Shop Act claims. Generally, Simmons argues that the evidence before the trial court reflects that the business contacts of Boyd Gaming and Delta Downs are continuous and systematic enough to justify the exercise of general jurisdiction, and that the marketing ...


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