Appeal from the 11th District Court Harris County, Texas
Trial Court Case No. 2014-68677
consists of Chief Justice Radack and Justices Massengale and
RADACK CHIEF JUSTICE
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.
reverse and render.
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. 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.
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
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.
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
21, 2017, FGT filed its third-amended petition,
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.
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
issues on appeal, Chameli argues that the trial court erred
in denying his special appearance.
Standard of Review
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."
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
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)).
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.
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.
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.
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 ...