Appeal from the 189th District Court Harris County, Texas
Trial Court Cause No. 2016-28003
consists of Justices Christopher, Brown, and Wise.
case asserting contract and breach-of-fiduciary-duty claims,
defendant Richard Turman appeals from the trial court's
ruling denying his special appearance. Turman's Texas
contacts are insufficient to support general jurisdiction;
however, the record supports the trial court's implied
finding that there is a substantial connection between
Turman's Texas contacts and the operative facts of the
breach-of-fiduciary-duty claim alleged by plaintiff POSP
Partners, LLC ("POSP"). We therefore conclude that
the trial court did not err in exercising specific
jurisdiction over that claim. We conclude, however, that
there is no such substantial connection between Turman's
Texas contacts and POSP's request for a declaration that
it is not liable to Turman under the terms of a compensation
agreement executed by Turman and a POSP employee. We
accordingly affirm the trial court's ruling in part,
reverse it in part, and remand the case to the trial court
with instructions to sever and dismiss POSP's contract
claim for lack of personal jurisdiction.
a Texas company that does business in several states. The
company markets and sells point-of-sale hardware, software,
and services, including credit card processing services.
resident Turman worked for a similar company, CRS Inc., in
Oklahoma. After POSP purchased CRS Inc. or its assets in the
summer of 2013, POSP began doing business in Oklahoma under
the name CRS Oklahoma or CRS Oklahoma, LLC. Turman became a
regional account manager for POSP and was paid as a
commissioned sales agent. While working for POSP, Turman also
formed his own company, Specialized POS Systems, LLC. Turman
purchased the equipment that Specialized POS sells from
Nelson Distributing in Texas, which POSP alleges is the same
vendor that supplies POSP's equipment.
received sales leads from POSP, and on four occasions, these
included POSP customers in Texas. Turman sold POSP equipment
to Speedy Mart in Wheeler, Texas and Pasqual, Inc. in Wichita
Falls, Texas. According to Turman, he contacted these
companies at POSP's direction, and the two companies
placed their orders for equipment upgrades by telephone.
Regarding the third instance, POSP states in a footnote in
its live pleading that Turman has filed an affidavit in which
he admits receiving a lead from POSP that Robbin's True
Value Hardware in Canadian, Texas, needed a broken cash
register replaced. POSP further states that Turman admits he
sold and installed the cash register in Texas through his own
company rather than through POSP. In the fourth instance,
POSP alleges that it informed Turman that Ginger's Point
Corporation d/b/a Blue Bayou wanted to buy a cash register
and that Turman instead sold the equipment through his own
company and kept the sales proceeds. The customer's sales
order and canceled checks, which POSP attached to its
pleading, identify only an Oklahoma address; however, as with
Robbin's True Value Hardware, POSP states in a footnote
that "Turman has filed an affidavit admitting . . . that
he personally sold and installed (in Texas) the point-of-sale
equipment that Blue Bayou was seeking to purchase from POSP .
. . ."
discovering that Turman had used his own company to sell
equipment to POSP's customers, POSP informed Turman in
April 2016 that he was terminated. In response, Turman
emailed POSP that it had breached its contract with him by
failing to pay all of the commissions POSP owed him. He
produced a document dated September 16, 2013 with POSP's
logo above the heading, "RE: Sales Compensation
Schedule, Richard Turman, Regional Account
Manager." The compensation agreement is executed by
Turman and signed on POSP's behalf by Dan Martin. Among
other things, the compensation schedule calls for Turman to
be paid a 15% commission on sales and to receive an
automobile allowance of $350/month. According to Turman, the
agreement was negotiated and executed in Oklahoma. POSP
alleges alternatively that the document is a forgery and that
Martin lacked authority to sign such an agreement on
sued Turman in Texas for breach of fiduciary duty, alleging
that Turman made sales on behalf of other companies to
POSP's existing or potential customers. POSP also sued
for construction of the compensation contract, asking the
trial court for a declaration that the 2013 compensation
agreement between POSP and Turman is invalid or
unenforceable. POSP argued in the alternative that Turman
ratified a change in the compensation agreement because
throughout the three years of his employment, Turman accepted
POSP's payment of only a 12% commission with no
filed an original and two amended special appearances
contesting the court's exercise of personal jurisdiction
over him. The record does not show that POSP responded, and
we have no record of the oral hearing on the special
appearance, which we presume was
trial court denied Turman's special appearance, and in a
single issue, Turman challenges the trial court's ruling.
Standard of Review
trial court, the plaintiff bears the initial burden to allege
facts bringing the defendant within reach of the Texas
long-arm statute. See Kelly v. Gen. Interior Constr.,
Inc., 301 S.W.3d 653, 658 (Tex. 2010). If the plaintiff
does not do so, then the defendant can defeat jurisdiction
merely by proving that it does not reside in Texas. See
id. at 659. If the plaintiff does allege sufficient
jurisdictional facts, then the burden shifts to the defendant
to negate the bases of personal jurisdiction alleged. See
id. at 658. If the defendant does so, then the burden
shifts back to the plaintiff to affirm its allegations with
legal authority or evidence showing jurisdiction. See
id. at 659.
the existence of personal jurisdiction is a question of law,
we review the trial court's ruling de novo. See Am.
Type Culture Collection, Inc. v. Coleman, 83
S.W.3d 801, 805-06 (Tex. 2002). In determining whether
personal jurisdiction exists, however, the trial court may
have to resolve factual disputes. See id. at 806
(citing BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002)). Where, as here, the trial court
issues no factual findings, we presume that the trial court
resolved all factual disputes in favor of the judgment.
See id. (citing BMC Software, 83 S.W.3d at
795). If the record includes the clerk's and
reporter's records, a litigant may challenge the trial
court's implied findings for legal and factual
sufficiency. See BMC Software, 83 S.W.3d at 795.
But, because the factfinder is the sole judge of the
witnesses' credibility and the weight to be given to
their testimony, we will not substitute our judgment for that
of the trial court, even if we might reach a different result
in similar circumstances. See Thu Thuy Huynh v. Thuy
Duong Nguyen, 180 S.W.3d 608, 615 (Tex. App.-Houston
[14th Dist.] 2005, no pet.).
state long-arm statute "extends Texas courts'
personal jurisdiction 'as far as the federal
constitutional requirements of due process will
permit.'" M & F Worldwide Corp. v.
Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 885
(Tex. 2017) (quoting BMC Software, 83 S.W.3d at
795). Federal due-process requirements are satisfied if (a)
the nonresident defendant has "minimum contacts"
with the forum state, and (b) the court's exercise of
jurisdiction "does not offend 'traditional notions
of fair play and substantial justice.'" Id.
(quoting Walden v. Fiore, __ U.S. __, 134 S.Ct.
1115, 1121, 188 L.Ed.2d 12 (2014)).
principle underlying minimum-contacts analysis is that
"[t]he defendant's activities, whether they consist
of direct acts within Texas or conduct outside Texas, must
justify a conclusion that the defendant could reasonably
anticipate being called into a Texas court." M &
F Worldwide, 512 S.W.3d at 886 (quoting Retamco
Operating, Inc. v. Republic Drilling Co., 278 S.W.3d
333, 338 (Tex. 2009)). A defendant has established minimum
contacts with the forum state if it has "purposefully
avail[ed] itself of the privilege of conducting activities
within the forum state, thus invoking the benefits and
protections of its laws." Id. (quoting
Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414
S.W.3d 142, 150 (Tex. 2013)).
determining whether the defendant has purposefully availed
itself of the privilege of conducting activities in Texas,
three rules are paramount. First, only the defendant's
contacts are relevant, not the unilateral activity of someone
else. See id. (citing Michiana Easy Livin'
Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.
2005)). Second, the defendant's acts must be purposeful
and not random or fortuitous. See id. And third, the
defendant "must seek some benefit, advantage, or profit