Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-l-GN-17-003646, HONORABLE AMY CLARK MEACHUM, JUDGE
Justices Goodwin, Baker, and Smith
Melissa Goodwin, Justice
interlocutory appeal, Elizabeth Bunting, a nonresident
defendant in the underlying case, challenges the trial
court's denial of her special appearance in an action
brought by the plaintiff Kyle Bunting Holdings, Inc. (KBH)
for tortious interference with existing contracts,
defamation, and business disparagement. See Tex.
Civ. Prac. & Rem. Code § 51.014(a)(7) (providing for
interlocutory appeal from denial of special appearance);
Tex.R.Civ.P. 120a (providing for special appearance). For the
reasons described below, we affirm.
Delaware company with its principal office in Austin, Texas,
"markets decorative hide rugs and related
products." Kyle Bunting formed KBH in 2000 and testified
that he is "the sole founder, sole shareholder, and sole
principal." Two years later, Kyle married Elizabeth and
they lived in Texas until 2014, when Elizabeth moved to
California. Elizabeth filed for divorce in California on
January 6, 2015, and KBH alleges Elizabeth waited
"exactly six months after the move" to file for
divorce in "an apparent effort to take advantage of
California marital property law."
28, 2017, KBH sued Elizabeth for tortious interference with
existing contracts, defamation, and business disparagement
and alleged that Elizabeth was falsely claiming to be the
"Co Founder/Owner" of KBH and that her "move
[to California], and the litany of harassing, threatening,
interfering, and defamatory communications that followed,
were part of a pattern to intentionally harm Kyle and [KBH]
out of spite and/or to obtain an ownership interest in [KBH]
that could not be obtained in Texas." Elizabeth filed a
special appearance with a supporting affidavit and claimed
that personal jurisdiction is improper because she is a
resident of California, not Texas, and has not resided in
Texas since 2014; she does not hold any interest in real
property in Texas and does not pay taxes to the State of
Texas; she does not have minimum contacts with the State of
Texas; and even if the trial court asserted jurisdiction over
her, it would offend traditional notions of fair play and
substantial justice. See Tex. R. Civ. P. 120a. In an
amended petition, KBH pleaded that jurisdiction exists
because Elizabeth "was a Texas resident for ten years
until at least 2014, she has (substantially more than)
minimum contacts with the State of Texas, and the exercise of
jurisdiction would not offend the traditional notions of fair
play and substantial justice," and listed specific
examples of the minimum contacts that will be discussed
hearing, the trial court denied the special appearance.
Elizabeth then requested findings of fact and conclusions of
law, but the record does not indicate that any were issued.
Elizabeth now appeals the trial court's denial of the
special appearance. See Tex. Civ. Prac. & Rem.
Code § 51.014(a)(7).
Texas long-arm statute governs Texas courts' exercise of
jurisdiction over nonresident defendants" when they do
business in Texas. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002) (citing Tex.
Civ. Prac. & Rem. Code §§ 17.041-.045). The
long-arm statute lists activities that constitute "doing
business" in Texas-including committing a tort in whole
or in part-but the list is not exclusive and "section
17.042's language extends Texas courts' personal
jurisdiction 'as far as the federal constitutional
requirements of due process will permit.'" Id.
(quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d760,
762 (Tex. 1977)). "A state's exercise of
jurisdiction comports with federal due process if the
nonresident defendant has 'minimum contacts' with the
state and that the exercise of jurisdiction does not offend
'traditional notions of fair play and substantial
justice.'" M &F Worldwide Corp. v.
Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 885
(Tex. 2017) (quoting Walden v. Fiore, 571 U.S. 277,
283 (2014)). Minimum contacts with a state exist when the
defendant "purposefully avails [her]self of the
privilege of conducting activities within the forum state,
thus invoking the benefits and protections of its laws"
and justifying the conclusion "that the defendant could
reasonably anticipate being called into a Texas court."
Old Republic Nat'l Title Ins. Co. v. Bell, 549
S.W.3d 550, 559 (Tex. 2018) (quoting Retamco Operating,
Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex.
2009)). The purposeful availment requirement encompasses
three considerations: (1) "only the defendant's
contacts with the forum are relevant, not the unilateral
activity of another party or a third person"; (2)
"the contacts relied upon must be purposeful rather than
random, fortuitous, or attenuated"; and (3) "the
defendant must seek some benefit, advantage or profit by
availing itself of the jurisdiction." Id. (quoting
Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d
142, 151 (Tex. 2013)).
defendant's contacts may give rise to either general or
specific jurisdiction. Id. (citing Moncrief
Oil, 414 S.W.3d at 150). General jurisdiction exists
when the contacts are "continuous and systematic with a
state"; specific jurisdiction exists "when the
cause of action arises from or is related to a
defendant's purposeful activities in the state."
Id. (citing Moncrief Oil, 414 S.W.3d at
150). Specific jurisdiction generally requires a
"claim-by-claim" analysis, but when "all
claims arise from the same forum contacts," we
"need not assess contacts on a claim-by-claim
basis." Moncrief Oil, 414 S.W.3d at 150-51.
challenge to personal jurisdiction, the parties bear shifting
burdens of proof. Kelly v. General Interior Constr.,
Inc., 301 S.W.3d 653, 658 (Tex. 2010). The plaintiff
bears the initial burden "to plead sufficient
allegations to bring the nonresident defendant within the
reach of Texas's long-arm statute." Id. The
burden then shifts to the defendant "to negate all bases
of personal jurisdiction alleged by the plaintiff," on
"either a factual or legal basis." Id. at
a trial court has personal jurisdiction over a nonresident
defendant is a question of law that we review de novo."
Old Republic, 549 S.W.3d at 558 (citing Moncrief
Oil, 414 S.W.3d at 150). When no findings of fact and
conclusions of law are issued, we infer all relevant facts
supported by the evidence that are necessary to support the
judgment. Id. (citing BMC, 83 S.W.3d at
795). But "when the appellate record includes the
reporter's and clerk's records," as here,
"these implied findings are not conclusive and may be
challenged for legal and factual sufficiency in the
appropriate appellate court." BMC, 83 S.W.3d at