                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00173-CV


REBECCA GEORGE                                                        APPELLANT

                                         V.

ADAM M. DEARDORFF AND LANA                                            APPELLEES
WIRSIG


                                      ----------

        FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                                    OPINION

                                      ----------

      Appellant Rebecca George appeals from the trial court’s dismissal of her

claims against Appellees Adam M. Deardorff and Lana Wirsig on jurisdictional

grounds. In one issue, George argues that the trial court erred by sustaining

Deardorff’s and Wirsig’s special appearances. Because we hold that the trial

court did not err by sustaining the special appearances, we affirm the trial court’s

order dismissing George’s claims against them.
                                      Background

      George filed suit against Deardorff, Wirsig, and Harlan Hall, a party not

involved in this appeal. Hall is a resident of Texas, Deardorff is a resident of

Pennsylvania, and Wirsig is a resident of Missouri.        In her petition, George

asserted claims for, among other things, libel, slander, defamation, civil

conspiracy, intentional infliction of emotional distress, interference with known

business relations, and negligence.

      George asserted the following facts in her petition. In order to assist his

daughter Dana in achieving the ―High Point in the Nation‖ award from the

American Paint Horse Association (APHA), Hall began a campaign to sabotage

Maggie Griffin, one of his daughter’s major competitors, and to discredit George,

who trained Griffin and her horse. As part of this campaign, Hall filed suit against

George; Griffin; Griffin’s mother; Wirsig; and Wirsig’s mother in Michigan state

court for battery, assault, negligence, intentional infliction of emotional distress,

and civil conspiracy. Wirsig was at that time one of George’s clients.

      Early in the Michigan lawsuit, Wirsig provided Hall with a written statement

asserting that George and Griffin had instructed her to ―cover‖ Dana at a

competition (that is, to position her horse between Dana’s horse and the judges

to obstruct the judges’ view of Dana). Hall dismissed Wirsig and her mother from

the lawsuit, and Wirsig ceased all communication with George.

      Hall produced Deardorff for a deposition in the Michigan suit, and in

Deardorff’s deposition, he stated that at the same competition, George behaved


                                         2
in a manner designed to harass and intimidate Dana and other competitors.

During this time, Deardorff and Hall were engaged in negotiations for Hall to hire

Deardorff as the Hall family’s horse trainer in Texas.

      The trial court in the Michigan suit granted George and the Griffins’ motion

for summary judgment on Hall’s claims. In addition to filing his lawsuit, Hall

lodged two complaints with the APHA, causing that organization to revoke

George’s status as an official APHA judge and to suspend her from APHA

competitions for six months. This suspension caused her to lose more than half

of her clients.

      Deardorff and Wirsig both filed special appearances asserting that the trial

court lacked personal jurisdiction over them. In response, George alleged that

they both had made false statements that were provided to APHA, whose

headquarters is in Fort Worth.     After a hearing, the trial court sustained the

special appearances and dismissed George’s claims against Deardorff and

Wirsig.

                               Standard of Review

      Whether a trial court has personal jurisdiction over a defendant is a

question of law that we review de novo.1 The trial court frequently must resolve

questions of fact before deciding the jurisdiction question, however, and we may



      1
          BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.
2002).


                                         3
review a trial court’s findings of fact for legal and factual sufficiency.2 Although

we do not review the trial court’s legal conclusions for factual sufficiency, we may

review the trial court’s conclusions drawn from the facts to determine their

correctness.3 If we determine that a conclusion of law is erroneous but that the

trial court rendered the proper judgment, the erroneous conclusion of law does

not require reversal.4

      When a trial court does not issue findings of fact and conclusions of law

with its special appearance ruling, all facts necessary to support the judgment

and supported by the evidence are implied.5 But when the appellate record

includes the reporter’s and clerk’s records, these implied findings are not

conclusive and may be challenged for legal and factual sufficiency.6

                              Special Appearances

      Texas courts may exercise personal jurisdiction over nonresident

defendants in accordance with the Texas long-arm statute.7 The plaintiff has the


      2
       Id.
      3
       Id.
      4
       Id.
      5
       Id. at 795.
      6
      Id.; Moncrief Oil Int’l, Inc. v. OAO Gazprom, 332 S.W.3d 1, 7 (Tex. App.—
Fort Worth 2010, pet. filed).
      7
      Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045 (West 2008); BMC
Software, 83 S.W.3d at 795.


                                         4
initial burden to plead sufficient allegations to confer jurisdiction,8 and, thus with a

nonresident defendant, the plaintiff has the burden of pleading sufficient

allegations to bring the defendant within the reach of the Texas long-arm statute.9

      A plaintiff may meet this minimal pleading requirement by alleging that the

nonresident defendant is doing business in Texas.10 Once the plaintiff has met

this burden, the nonresident defendant has the burden of negating all bases of

jurisdiction alleged in the plaintiff’s petition.11 Because the plaintiff defines the

scope and nature of the lawsuit, the defendant’s burden to negate jurisdiction is

tied to the allegations in the plaintiff’s pleading.12 Thus, if the plaintiff fails to

plead facts bringing the defendant within reach of the long-arm statute, the

defendant need only prove that he or she does not live in Texas to meet this

burden.13

      The long-arm statute extends Texas courts’ personal jurisdiction ―as far as

the federal constitutional requirements of due process will permit.‖ 14 Personal

      8
       Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337
(Tex. 2009); Moncrief, 332 S.W.3d at 7.
      9
       BMC Software, 83 S.W.3d at 793.
      10
          Moncrief, 332 S.W.3d at 7.
      11
          Id.
      12
          Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010).
      13
          Id. at 658–59.
      14
          BMC Software, 83 S.W.3d at 795.


                                           5
jurisdiction meets constitutional due process requirements when two conditions

are met: ―(1) the defendant has established minimum contacts with the forum

state, and (2) the exercise of jurisdiction comports with traditional notions of fair

play and substantial justice.‖15

      A nonresident defendant’s contacts with a state can give rise to either

general or specific jurisdiction.16 General jurisdiction exists when a defendant’s

contacts are continuous and systematic, in which case the forum state may

exercise personal jurisdiction over the defendant even if the cause of action did

not arise from or relate to activities conducted within the forum state. 17 Specific

jurisdiction is established if the defendant’s alleged liability arises from or is

related to an activity conducted within the forum.18

      To have minimum contacts for purposes of specific jurisdiction, a

nonresident defendant must by some act have purposefully availed itself of the

privileges of conducting activities within Texas.19 Only the defendant’s contacts

with the state count: a defendant should not be haled into a jurisdiction solely as

      15
        Id. (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154
(1945)).
      16
         Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575–76 (Tex.
2007).
      17
         CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996).
      18
         Id.; Moncrief, 332 S.W.3d at 9.
      19
       See Moki Mac, 221 S.W.3d at 576; see also Michiana Easy Livin’
Country, Inc. v. Holten, 168 S.W.3d 777, 784–85 (Tex. 2005).


                                           6
a result of the ―unilateral activity of another party or a third person.‖20 The acts

relied on to show minimum contacts must be purposeful rather ―random, isolated,

or fortuitous.‖21 Furthermore, the defendant must seek some benefit, advantage,

or profit by availing itself of the jurisdiction.22

       One way a nonresident defendant establishes minimum contacts is by

doing business in the state.23         For purposes of Texas’s long-arm statute, a

nonresident does business in Texas if the nonresident commits a tort ―in whole or

in part‖ in the state.24 An allegation that the nonresident committed a tort in

Texas, however, while satisfying the long-arm statute, does not necessarily

satisfy due process requirements.25

                                         Analysis

       In her sole issue, George argues that the trial court erred by sustaining

Deardorff’s and Wirsig’s special appearances because the undisputed facts and

legal precedence clearly show that Texas courts have jurisdiction over Deardorff

and Wirsig.     George did not plead any facts in her petition to show general


       20
         Michiana, 168 S.W.3d at 785.
       21
         Id.
       22
         Id.
       23
         IRA Res., Inc. v. Griego, 221 S.W.3d 592, 596 (Tex. 2007).
       24
         Tex. Civ. Prac. & Rem. Code Ann. § 17.042.
       25
         Michiana, 168 S.W.3d at 788.


                                              7
jurisdiction and did not make any assertion in her response to Deardorff’s and

Wirsig’s special appearances that the trial court had general jurisdiction over

Deardorff and Wirsig. In fact, she specifically stated that she was ―not alleging

general jurisdiction applies here.‖ Accordingly, we focus our analysis on whether

the facts showed that the trial court had specific jurisdiction.

      We first examine George’s petition to see if she alleged facts giving rise to

jurisdiction. George alleged that Deardorff was a resident of Pennsylvania and

that Wirsig was a resident of Missouri. She did not allege in her petition that

Wirsig or Deardorff had done business in Texas, nor did she allege any other

jurisdictional facts.    Although she asserted that Wirsig’s and Deardorff’s

statements were provided to APHA, she asserted that Hall submitted them, not

Wirsig or Deardorff.26      She also asserted that Deardorff had engaged in

negotiations with Hall regarding the possibility of Hall hiring Deardorff to become

the Hall family’s horse trainer in Texas. But she did not allege where these

negotiations occurred or allege any other facts about these negotiations. None

of these alleged facts show that either Deardorff or Wirsig had any actual contact

with Texas. Based on these pleadings, George did not meet her burden to allege

facts sufficient to give the trial court personal jurisdiction over Deardorff and

Wirsig.



      26
         See id. at 785 (stating that a defendant should not be haled into a
jurisdiction based solely on the unilateral activity of a third party).


                                           8
      Because George failed to plead jurisdictional facts, Deardorff and Wirsig

could meet their burden to negate jurisdiction by proving that they were

nonresidents.27 Deardorff and Wirsig both submitted affidavits to the trial court in

which they swore that they were not residents of Texas. George never disputed

that they were not Texas residents, and in fact she acknowledged that they were

nonresidents in her pleadings. Because Deardorff and Wirsig met their burden to

negate jurisdiction, George had the burden to show that the trial court had

jurisdiction of Deardorff and Wirsig.28

      George filed a response to the special appearances in which, in

contradiction to her pleadings, she alleged that Wirsig and Deardorff furnished

defamatory statements to the APHA, which has its headquarters in Texas,

thereby committing a tort in this state. But then, in her affidavit attached to the

response, she again alleged that it was Hall who had given the statements to the

APHA. George did not amend her pleadings, and thus at the time the trial court

entered its order, her live pleadings alleged that it was Hall who provided

Deardorff’s and Wirsig’s statement to the APHA, and she affirmed this assertion

in her affidavit challenging the special appearances.

      To this response, Wirsig and Deardorff filed a joint reply. Wirsig attached

an affidavit in which she stated that she had signed an affidavit in accordance

      27
        See Kelly, 301 S.W.3d at 658–59.
      28
       See Assurances Generales Banque Nationale v. Dhalla, 282 S.W.3d
688, 695 (Tex. App.—Dallas 2009, no pet.)


                                          9
with her settlement with Hall of the Michigan lawsuit. She stated that at the time

she signed the affidavit, she was not aware of any APHA complaints relating to

the Michigan lawsuit, that she did not give the affidavit to the APHA, and that if it

was given to the APHA, it was done without her knowledge. Deardorff likewise

signed an affidavit in which he stated that he signed an affidavit in connection

with the Michigan lawsuit, that he was unaware of the APHA complaints relating

to the Michigan lawsuit, that he did not give his affidavit to the APHA, and that if

the affidavit had been given to that organization, it was done without his

knowledge.

      George failed to assert any grounds on which the trial court could

determine it had personal jurisdiction over Deardorff and Wirsig. Furthermore,

even if the trial court considered her one statement in her response that

Appellees had furnished their statements to the APHA, this allegation is not

sufficient to show jurisdiction. This act, if true, was too random or isolated to

constitute purposeful availment and does not show that Deardorff or Wirsig

sought some benefit, advantage, or profit by availing themselves of Texas. 29

Similarly, George’s allegation that Deardorff engaged in employment negotiations

with Hall do not show minimum contacts; she did not allege whether these talks

occurred in Texas or were of a nature to show purposeful availment.


      29
        See Michiana, 168 S.W.3d at 788 (stating that allegations that a tort was
committed in Texas satisfy the long-arm statute but not necessarily the U.S.
Constitution).


                                         10
      George argues that the fact that it was Hall who provided the statement to

APHA has no relevance here because ―that issue is applicable under the

purposeful availment analysis, not the long-arm analysis.‖ We do not understand

this argument.    The ―purposeful availment‖ analysis applies in determining

whether a defendant has the minimum contacts with a forum to bring the

defendant within the reach of the long-arm statute.           Thus, the purposeful

availment analysis applies to the long-arm determination.

      George then argues that because she asserted a claim for civil conspiracy,

Hall’s acts are imputed to Deardorff and Wirsig. But George had to establish

personal jurisdiction over Deardorff and Wirsig individually and not based on the

acts of another person as part of a conspiracy.30 We overrule this argument.

      George also argues that Deardorff and Wirsig attended APHA events and

Wirsig     competed   in   APHA-sponsored     events,   and    because    APHA     is

headquartered in Texas, these acts constitute doing business in Texas.           But

George did not allege that Deardorff and Wirsig attended any of these events in

Texas, much less that their contacts with Texas in connection with these events

were more than just random or isolated contacts or that in attending the events



      30
         See Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995)
(affirming that it is the contacts of the defendant himself that are determinative on
the question of jurisdiction and declining to recognize the assertion of personal
jurisdiction over a nonresident defendant based solely upon the effects or
consequences of an alleged conspiracy with a resident in the forum state);
Moncrief, 332 S.W.3d at 10 n.7.


                                         11
they had sought some benefit, advantage, or profit by availing themselves of the

laws of this state.31 We overrule this argument.

      George further argues that Wirsig was a customer of George, and

George’s business is located in Texas. But George never alleged that Wirsig

ever did business with George in Texas or otherwise alleged facts showing that

by using George’s services, Wirsig purposefully invoked the benefits or

protections of Texas laws.32 We overrule this argument.

      George contends that under the laws of defamation, publication of a

defamatory statement is actionable, even if the publishing is done by someone

other than the party making the defamatory statement, if ―a reasonable person

would recognize that an act creates an unreasonable risk that the defamatory

matter will be communicated to a third party.‖ George is correct that in some

cases, a party will be liable for the republication by a third party of defamatory

statement made by the party.33        But whether Deardorff and Wirsig could

ultimately be liable in a suit for defamation is not determinative of whether the




      31
       See Michiana, 168 S.W.3d at 785.
      32
         See id. (―Jurisdiction is premised on notions of implied consent—that by
invoking the benefits and protections of a forum’s laws, a nonresident consents
to suit there.‖).
      33
       See Wheeler v. Methodist Hosp., 95 S.W.3d 628, 639–40 (Tex. App.—
Houston [1st Dist.] 2002, no pet.).


                                       12
trial court had jurisdiction over them.34 Instead, George must have alleged facts

showing that Deardorff and Wirsig had minimum contacts with Texas.              We

overrule this argument.

      Finally, George argues that provision of Deardorff and Wirsig’s statements

to APHA directly affected George and her business. But that their conduct in

another state may have had some affect on George in this state is not enough to

give Texas courts jurisdiction over them.35 We overrule this argument, and we

hold that the trial court correctly determined that George failed to meet her

burden to establish that the trial court had personal jurisdiction over Deardorff

and Wirsig.

      Because we have upheld the trial court’s determination based on the

minimum contacts analysis, we need not consider George’s argument that the

exercise of personal jurisdiction comports with notions of fair play and substantial

justice.36 We overrule George’s sole issue.


      34
        See Michiana, 168 S.W.3d at 790–91 (rejecting a jurisdiction analysis
that equates the jurisdictional inquiry with the underlying merits); see also Kelly,
301 S.W.3d at 660 (―Although the trier-of-fact may ultimately conclude that Kelly
and Hofstatter violated the Texas Trust Fund Act and committed fraud, the mere
commission of an act does not grant Texas courts jurisdiction over the actor.‖).
      35
          See Kelly, 301 S.W.3d at 660–61 (stating that ―jurisdictional analysis
always centers on the defendant’s actions and choices to enter the forum state
and conduct business‖ and holding that the court of appeals erred by allowing the
plaintiff’s claims to proceed despite the lack of allegations and evidence that any
part of the claim originated from the defendants’ conduct in Texas).
      36
        See Tex. R. App. P. 47.1.


                                        13
     Having overruled George’s sole issue, we affirm the trial court’s order

sustaining Deardorff’s and Wirsig’s special appearances and dismissing

George’s claims against them.




                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: February 2, 2012




                                    14
