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Chameli v. Florida Gas Transmission Co. LLC

Court of Appeals of Texas, First District

June 21, 2018


          On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2014-68677

          Panel consists of Chief Justice Radack and Justices Massengale and Brown.



         In this interlocutory appeal, appellant, David Chameli, appeals the trial court's order that denied his special appearance. In four issues on appeal, Chameli argues that (1) purposeful availment was lacking; (2) his contacts were not substantially related to the litigation; (3) the claims asserted were insufficient for jurisdiction; and (4) appellee, Florida Gas Transmission Company ("FGT"), judicially admitted that Chameli has no personal liability and that he has attorney immunity against FGT's claims.

         We reverse and render.


         FGT operates a natural gas pipeline system that runs from Texas to Florida, while FCC Environmental, LLC ("FCC") provides maintenance, repair, and other services to pipeline owners. Around 2003, FGT and FCC entered into an "Environmental Services Agreement, " ("ESA") for FCC to maintain FGT's pipeline system. In 2012, FGT needed maintenance on a section of its pipeline in Lavaca, Texas. FGT contacted FCC and requested environmental services, and FCC performed the work by using a frac tank.[1] The frac tank was later transported to a frac yard where an explosion occurred, injuring Oscar Villegas. Villegas sued FGT and FCC for his injuries.

         After receiving notice of the Villegas suit, FGT notified FCC and demanded a defense and indemnity, pursuant to the ESA. FGT maintained that the ESA required FCC to defend and indemnify FGT for claims arising out of or incident to the negligent performance of the ESA or any work performed by FCC under the ESA.

         On November 21, 2014, FGT sued FCC, seeking a declaration that FCC was required to defend and indemnify FGT from any liability for work performed by Villegas. FGT alleged that FCC refused to defend or indemnify FGT, and it refused to produce relevant insurance information so that FGT could assert its rights as an additional insured under any available insurance policies. As relevant to this case, on January 8, 2015, Chameli, Vice President and General Counsel for FCC, phoned FGT's counsel, who worked in Dallas, Texas, to seek an extension of FCC's deadline to appear in the lawsuit between FGT and FCC. During these communications, FGT maintained that Chameli represented that he would demand a defense of FGT from all of FCC's insurance carriers in connection with the underlying litigation with Villegas.

         E-mail communications between Chameli and FGT's counsel between January 8 and January 30 indicate that FGT proposed that it would agree to Chameli's extension request if Chameli would agree to demand a defense of FGT, provide an indemnification response, and agree to arrange a meeting or mediation before March 15. After a number of e-mails, Chameli agreed. FGT refers to this agreement as the "Notice Agreement." Chameli identified at least one insurance carrier, but according to FGT, Chameli failed to identify the relevant insurance carrier, Chartis Specialty Insurance Company, that could have provided a defense to FGT. On February 6, 2015, Chameli informed FGT that it did not have a duty to indemnify FGT for the Villegas litigation. As a result of FCC's position on its indemnity obligation to FGT, FGT eventually settled Villegas's claims against it.[2]

         On July 21, 2017, FGT filed its third-amended petition, [3] adding Chameli as a defendant. FGT asserted that Chameli contacted FGT "in his capacity as legal counsel for . . . FCC" and in exchange for FGT's agreement to extend the deadline for FCC's answer in the present lawsuit, Chameli agreed to immediately demand a defense of FGT from FCC's insurance carriers in connection with the underlying litigation brought by Villegas. FGT further asserted that FCC did not disclose the certificate of insurance for the Chartis policy until nearly 18 months after the Villegas suit and after it sued FCC, and only after FGT settled the underlying Villegas suit. FGT brought causes of action against Chameli for fraud, negligent misrepresentation, breach of fiduciary duty, and tortious interference with contract.

         Chameli filed a special appearance, disputing that he had minimum contacts with Texas. FGT responded, asserting that Chameli had minimum contacts with Texas as a result of his phone calls and e-mails to Texas and committing a tort in Texas. After the trial court denied Chameli's special appearance, Chameli brought this interlocutory appeal.[4]

         Special Appearance

         In four issues on appeal, Chameli argues that the trial court erred in denying his special appearance.

         A. Standard of Review

         "Whether a court has personal jurisdiction over a defendant is a question of law." BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If the determination of jurisdiction depends on the resolution of questions of fact, the resolution of those facts are reviewed for legal and factual sufficiency. Id. Otherwise, we "review the trial court's legal conclusions drawn from the facts to determine their correctness." Id.

         When, as here, the trial court does not issue findings of fact and conclusions of law for the special appearance, "all facts necessary to support the judgment and supported by the evidence are implied." Id. at 795. In the presence of a developed record, however, these conclusions are reviewed for legal and factual sufficiency. Id.

          B. Applicable Law

         "A nonresident defendant is subject to the personal jurisdiction of Texas courts if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction does not violate federal and state constitutional due process guarantees." Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653, 657 (Tex. 2010). Texas's long-arm statute extends a trial court's jurisdiction to the scope permitted by the federal constitution's due-process requirements. Id. Consistent with federal due-process protections, a state can exercise personal jurisdiction over nonresident defendants if they have "established minimum contacts with the forum state, and the exercise of jurisdiction comports with 'traditional notions of fair play and substantial justice.'" Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945)).

         A party establishes minimum contacts with the forum state if it purposefully avails itself of the privileges and benefits of conducting business in a state. Touradji v. Beach Capital P'ship, L.P., 316 S.W.3d 15, 24 (Tex. App.-Houston [1st Dist.] 2010, no pet.). The scope of the nonresident's actions that can constitute purposeful availment varies depending on the type of jurisdiction alleged: general jurisdiction or specific jurisdiction. See id. at 24-25.

         A court has specific, personal jurisdiction over a nonresident defendant if (1) the nonresident purposefully directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there and (2) the controversy arises out of or is related to the nonresident's contacts with the forum state. Id. at 24. Such a determination ultimately concerns the relationship among the nonresident, the forum, and the litigation. Kelly, 301 S.W.3d at 658. For specific jurisdiction, "purposeful availment has no jurisdictional relevance unless the defendant's liability arises from or relates to the forum contacts." Moki Mac, 221 S.W.3d at 579.

         Certain considerations are relevant in this determination. First, only the nonresident's actions are relevant to the determination of purposeful availment; unilateral actions of the plaintiff or of a third party are not relevant. Touradji, 316 S.W.3d at 24. Also, the actions of the nonresident must be purposeful; random, isolated, or fortuitous actions are insufficient. Id. Likewise, the nonresident's actions must seek some benefit, advantage, or profit through the purposeful availment so that the nonresident can be deemed to consent to suit there. Id.

         The exercise of personal jurisdiction must comport with traditional notions of fair play and substantial justice. Curocom Energy LLC v. Young-Sub Shim, 416 S.W.3d 893, 896 (Tex. App.-Houston [1st Dist.] 2013, no pet.). If the nonresident defendant has purposefully established minimum contacts with the forum state, then only in rare cases will a Texas court's exercise of personal jurisdiction not comport with fair play and ...

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