Reversed and Rendered and Opinion Filed January 26, 2015




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00435-CV

                        MY VACATION EUROPE, INC., Appellant
                                       V.
                              CONNIE SIGEL, Appellee

                      On Appeal from the County Court at Law No. 5
                                  Dallas County, Texas
                          Trial Court Cause No. CC-13-06937-E

                            MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Fillmore
                                   Opinion by Justice Francis
       My Vacation Europe, Inc. d/b/a Paris Perfect appeals the trial court’s order denying its

special appearance. In two issues, MVE claims the trial court erred by denying its special

appearance because Connie Sigel did not plead general jurisdiction and, even if she had, neither

specific nor general jurisdiction exists.   We reverse the trial court’s judgment and render

judgment dismissing the claims against MVE for want of personal jurisdiction.

       In the summer of 2012, Sigel planned a trip to Paris, France. While searching on-line for

accommodations, she found the Paris Perfect website (www.parisperfect.com) which advertised

and marketed various vacation rentals. Sigel completed an online reservation inquiry form and

submitted the requested contact information, including her name, phone number, email address,

and the date she intended to travel to Paris. The following day, a MVE representative emailed
Sigel and provided details about the “Margaux apartment” which was available during the time

Sigel intended to travel to Paris.    After reading the email, Sigel asked for a draft rental

agreement. On July 17, 2012, a MVE representative emailed Sigel a personal booking code and

a personal reservation page, along with instructions for booking the Margaux apartment online.

Sigel accessed the reservation page and entered into a rental contract for the apartment,

submitting payment in full for a seven-night stay beginning September 6, 2012.

       Sigel travelled to Paris in September 2012 and began her stay in the Margaux apartment.

On the afternoon of September 10, while Sigel was away from the apartment, someone used a

key to enter the apartment. That same person also had a separate key to access the safe in the

apartment and stole “the majority of [Sigel’s] possessions.” In the days that followed, Sigel

contacted various employees of MVE who represented they were agents and employees of Paris

Perfect. Sigel forwarded MVE a copy of the French police report that noted a key had been used

to access the apartment and a separate key used to open the safe. When Sigel contacted MVE to

submit her claim for reimbursement, MVE informed her that it was not responsible for her losses

and that a French corporation, Westates SCI d/b/a Paris Perfect, owned the Margaux apartment.

       Sigel sued MVE and Westates for breach of contract, negligence, negligent

misrepresentation, fraud, conspiracy, conversion, theft of property, and gross negligence. She

claimed both defendants were liable under theories of joint enterprise, piercing the corporate

veil, and alter ego. MVE and Westates each filed a special appearance and a motion to dismiss

based on a forum selection clause contained in the online rental contract. The trial court denied

MVE’s special appearance but granted a continuance for discovery as to Westates’s special

appearance. The trial court also denied the motions to dismiss. MVE now appeals the denial of

its special appearance.




                                              –2–
       Whether a court has personal jurisdiction over a defendant is a question of law. Am. Type

Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805−06 (Tex. 2002). When resolving this

question of law, a trial court must frequently resolve questions of fact. Id. at 806. On appeal, the

trial court’s decision to grant or deny a special appearance is subject to de novo review, but

appellate courts may be called upon to review the trial court’s resolution of a factual dispute. Id.

When the trial court does not issue findings of fact, reviewing courts should presume that the

trial court resolved all factual disputes in favor of its judgment. Id. Here, the relevant facts are

generally not disputed.

       A Texas court may exercise jurisdiction over a nonresident only if the Texas long-arm

statute authorizes the exercise of jurisdiction and the exercise of jurisdiction is consistent with

federal and due process guarantees. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,

795 (Tex. 2002). The Texas long-arm statute permits Texas courts to exercise jurisdiction over a

nonresident “doing business” in Texas. TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (West

2008). The definition of “doing business” in Texas includes contracting “by mail or otherwise

with a Texas resident” when either party is to perform the contract in whole or in part in this

state or committing a tort in whole or in part in Texas. Id. § 17.042(2). The long-arm statute’s

broad doing-business language allows the statute to “reach as far as the federal constitutional

requirements of due process will allow.” Guardian Royal Exch. Assurance, Ltd. v. English

China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).

       Federal due process requirements limit a state’s power to assert personal jurisdiction over

a nonresident defendant. See id. Personal jurisdiction is proper when the nonresident defendant

has established minimum contacts with the forum state, and the exercise of jurisdiction comports

with “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326

U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Minimum contacts

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are sufficient for personal jurisdiction when the nonresident defendant “purposefully avails itself

of the privilege of conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958); Michiana Easy Livin’

Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). There are three parts to a “purposeful

availment” inquiry. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007).

First, only the defendant’s contacts with the forum are relevant, not the unilateral activity of

another party or a third person. Id. Second, the contacts relied upon must be purposeful rather

than random, fortuitous, or attenuated. Id. And finally, the “defendant must seek some benefit,

advantage or profit by ‘availing’ itself of the jurisdiction.” Michiana, 168 S.W.3d at 785. The

purpose of the minimum contacts analysis is to protect a defendant from being haled into court

when its relationship with Texas is too attenuated to support jurisdiction. Am. Type Culture, 83

S.W.3d at 806.

       A nonresident defendant’s forum-state contacts may give rise to two types of personal

jurisdiction: general and specific. Moki Mac, 221 S.W.3d at 575. A general jurisdiction inquiry

is very different from a specific jurisdiction inquiry and involves a “more demanding minimum

contacts analysis” than for specific jurisdiction. PHC–Minden, L.P. v. Kimberly-Clark Corp.,

235 S.W.3d 163, 168 (Tex. 2007). For general jurisdiction to exist, “the defendant must be

engaged in longstanding business in the forum state, such as marketing or shipping products, or

performing services or maintaining one or more offices there; activities that are less extensive

than that will not qualify for general in personam jurisdiction.” Id. If the defendant has made

continuous and systematic contacts with the forum, general jurisdiction is established whether or

not the defendant’s alleged liability arises from those contacts. BMC Software, 83 S.W.3d.at

796.




                                               –4–
       In contrast, when specific jurisdiction is alleged, we focus the minimum-contacts analysis

on the relationship among the defendant, the forum, and the litigation. Guardian Royal, 815

S.W.2d at 228 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414

(1984)). If we conclude a nonresident defendant has made minimum contacts with Texas by

purposefully availing itself of the privilege of conducting activities here, then we address

whether the defendant’s alleged liability arises out of or is related to those contacts. Moki Mac,

221 S.W.3d at 576. For a nonresident defendant’s forum contacts to support an exercise of

specific jurisdiction, there must be a substantial connection between those contacts and the

operative facts of the litigation. Id. at 585. The mere sale of a product to or a single contract

with a Texas resident will not generally suffice to confer specific jurisdiction upon our courts.

Michiana, 168 S.W.3d at 786.

       The plaintiff bears the initial burden of pleading sufficient allegations to invoke

jurisdiction under the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574. The nonresident

defendant then assumes the burden of negating all bases of jurisdiction alleged. Id. Because the

question of a court’s exercise of personal jurisdiction over a nonresident defendant is one of law,

we review a trial court’s determination of a special appearance de novo. Id.

       In its first issue, MVE claims no facts in the record support the finding that Sigel’s tort

and breach of contract claims arise from or relate to MVE’s contacts with Texas so as to

establish specific jurisdiction. In response, Sigel argues MVE has purposefully availed itself of

the privilege of conducting business in Texas because it “received revenue from a rental in the

state of Texas.” She also contends MVE established sufficient contacts with Texas by making

material representations to her via its website and by entering into a rental contract with her in

“Plaintiff’s home in Dallas County, Texas.” She claims the damages she suffered arose from or




                                               –5–
related to the fact that the representations MVE made to her in Texas were false and MVE

breached its contract.

       In determining whether MVE has purposefully availed itself of the privilege of

conducting business here, we ignore Sigel’s connections or activity. We consider only MVE’s

contacts with Texas. These must be purposeful, not random, fortuitous, or attenuated, and MVE

must have sought some benefit, advantage, or profit “by availing itself of the jurisdiction.” Thus,

the fact Sigel accessed the MVE website and rented a Paris apartment while sitting at the

computer in her home in Dallas is not sufficient; rather the record must show MVE intended to

serve the Texas market. See Moki Mac, 221 S.W.3d at 577. Here, the record indicates MVE

does not target Texas residents, does not advertise in Texas, and has not directed marketing of its

services or the apartment rentals to Texas residents or Texas travel agents. And, over a five-year

period, total rentals by MVE to people with Texas mailing addresses were less than 5% of the

total rentals, both in number and revenue. The contract was not performed in Texas, and there

was no delivery of goods or services to Texas.

       These facts are in stark contrast to those in Moki Mac River Expeditions v. Drugg. In that

case, a Utah-based outdoor expedition company actively solicited Texas business by mailing

solicitations to past and prospective Texas customers, placed ads in local media, engaged in

“mass and targeted direct-marketing email campaigns” to Texas residents, utilized continuing

relationships with Texas customers to recruit additional business, and hired public relations firms

to target media groups and tour operators in Texas. Moki Mac, 221 S.W.3d at 577–79. The facts

of the case before us are more in line with those of the Michiana Easy Livin’ Country, Inc. v.

Holten case in which Michiana—a “seller [who] did not purposefully direct marketing efforts

here to solicit sales” sold an RV to Holten in Texas “by the mere fortuity that Holten happened to

reside here.” Id. at 576. The supreme court concluded the bare fact that a nonresident defendant

                                                 –6–
makes a sale to a Texas buyer does not constitute purposeful availment to the privilege of

conducting activities in Texas so as to invoke the benefits and protections of its laws. Michiana,

168 S.W.3d at 786–87; see Moki Mac, 221 S.W.3d at 577 (“[T]he mere sale of a product to a

Texas resident will not generally suffice to confer specific jurisdiction upon our courts. Instead,

the facts alleged must indicate that the seller intended to serve the Texas market.”). Under the

facts of this case, we cannot conclude MVE has purposefully availed itself of the privilege of

conducting business in Texas.

         Furthermore, even if MVE had purposefully availed itself of the benefits of conducting

business in Texas, we would nevertheless conclude no specific jurisdiction exists because the

causes of action arise from the break in and theft of property in Paris, France, and do not arise

from or are not related to an activity conducted within Texas. See Marchand, 83 S.W.3d 796.

Again, we find the supreme court’s reasoning in Moki Mac to be instructive. The parents of

thirteen-year-old Andy Druggs sued Moki Mac when Andy fell to his death while hiking on a

Grand Canyon hiking trail. Moki Mac, 221 S.W.3d at 573. The Druggs alleged they were

induced to send Andy on the rafting trip by Moki Mac’s direct solicitations, which included

statements made in the company’s brochures as well as the release sent to the parents. The

Druggs claimed Moki Mac assured them the trip was suitable for children ages twelve or above,

regardless of their camping skills, and that the company had “taken reasonable steps to provide

you with appropriate equipment and/or skilled guides.” The Druggs claimed that, but for these

promises, they would not have sent Andy on the rafting trip and he would not have fallen on the

hiking trail. Id. at 585. While accepting as true the Druggs’ claim that they would not have sent

their son on the trip were it not for Moki Mac’s representations about safety, the supreme court

noted:

         the operative facts of the Druggs’ suit concern principally the guides’ conduct of
         the hiking expedition and whether they exercised reasonable care in supervising
                                                –7–
         Andy. The events on the trail and the guides’ supervision of the hike will be the
         focus of the trial, will consume most if not all of the litigation’s attention, and the
         overwhelming majority of the evidence will be directed to that question. Only
         after thoroughly considering the manner in which the hike was conducted will the
         jury be able to assess the Druggs’ misrepresentation claim. In sum, “the [alleged
         misrepresentation] is not the subject matter of the case ... nor is it related to the
         operative facts of the negligence action.” Whatever connection there may be
         between Moki Mac's promotional materials sent to Texas and the operative facts
         that led to Andy's death, we do not believe it is sufficiently direct to meet due-
         process concerns. Analogous cases from other courts support our view.

Id. at 588 (internal citations omitted). Thus, although Moki Mac had sufficient purposeful

contact with Texas to satisfy the first prong of jurisdictional due process, the supreme court

nevertheless concluded the injuries for which the parents sought recovery (their child’s death on

a hiking trail in Arizona) and “the relationship between the operative facts of the litigation and

Moki Mac’s promotional activities in Texas are simply too attenuated to satisfy specific

jurisdiction’s due-process concerns.” Id. Likewise, we conclude the damages that Sigel seeks to

recover from the theft of her property and the relationship between the facts of the case and

MVE’s actions are too attenuated to establish specific jurisdiction. We sustain MVE’s first

issue.

         In its second issue, MVE contends the trial court erred by denying its special appearance

because Sigel did not plead general jurisdiction and, even if she had, MVE does not have

continuous and systematic contacts with Texas.

         In her second amended petition, Sigel claimed the trial court had jurisdiction over MVE

because it regularly conducted business in Texas via its “highly interactive website

www.parisperfect.com and engage[d] in repeated online contacts with Texas residents over the

Internet.” Sigel also argued MVE “markets, advertises, solicits, and conducts business within

the state of Texas.”       We conclude this pleading sufficiently raises the issue of general

jurisdiction.



                                                  –8–
       Most of Sigel’s argument concerning general jurisdiction revolves around MVE’s

purported “highly interactive website.” It is constitutionally permissible to exercise personal

jurisdiction over one who conducts activity over the internet in a commercial nature and quality.

Jackson v. Hoffman, 312 S.W.3d 146, 154 (Tex. App.―Houston [14th Dist.] 2010, no pet.).

Internet use falls within three categories on a sliding scale for purposes of establishing personal

jurisdiction. Reiff v. Roy, 115 S.W.3d 700, 705 (Tex. App.―Dallas 2003, pet. denied); Choice

Auto Brokers, Inc. v. Dawson, 274 S.W.3d 172, 177–78 (Tex. App.―Houston [1st Dist.] 2008,

no pet.). At one end of the sliding scale are websites that are “clearly used for transacting

business over the Internet,” such as entering into contracts, sales of goods and products, and the

knowing and repeated transmission of files of information. Reiff, 115 S.W.3d at 705; Dawson,

274 S.W.3d at 177. These websites may be sufficient to establish minimum contacts with a state.

Reiff, 115 S.W.3d at 705. On the other end of the scale are “passive” or “informational”

websites that are used only for purposes such as advertising, and “are not sufficient to establish

minimum contacts even though they are accessible to residents of a particular state.” Id. at

705−06. Between the extremes of the scale are “interactive” websites that allow for some

“exchange of information between a potential customer and a host computer.” Id. Courts

evaluate the middle ground contacts based on the level of interactivity (the degree of interaction

between the parties) and the commercial nature of the exchange of information. Karstetter v.

Voss, 184 S.W.3d 396, 405 (Tex. App.―Dallas 2006, no pet.); Jackson, 312 S.W.3d at 154.

       The record shows MVE owns and maintains a website which is a “primary portal through

which MVE does business.” The website displays photographs and descriptions of properties

available to rent; however, in order to get information on availability and pricing of a specific

property, a potential renter must send an online inquiry form. Once MVE receives the request, a

representative responds by email and, when appropriate, gives information about the specific

                                               –9–
property. The potential renter is then directed to an online reservation page where she may

complete the reservation form and submit payment. While the website is accessible to anyone

with Internet access, it does not target Texas residents nor does it allow for direct communication

with MVE representatives. Likewise, it does not allow for immediate booking of properties. At

best, the MVE website falls between passive and interactive on the sliding scale and, without

more, is insufficient to assert general jurisdiction.

        Even if MVE’s website were “very interactive,” this would be but one factor to consider

in determining whether general jurisdiction exists. A defendant’s business activities in the forum

state must be numerous to support a finding that it had the type of continuous and systematic

contacts to allow the exercise of general jurisdiction in a constitutional manner. Here, the record

shows MVE has no business operations or relationships in Texas; it has no offices, no

employees, no bank accounts, no rental properties, and no registered agent in Texas. Although it

markets apartments via its website, MVE does not ship products to Texas, does not perform any

services in Texas, and does not target Texas residents. These facts show MVE is not engaged in

any longstanding business in Texas. Viewing the record in the light most favorable to Sigel, we

conclude she has not shown the “continuous and systematic contacts” necessary to make a prima

facie case for the exercise of general jurisdiction.

        We reverse the trial court’s order denying MVE’s special appearance and render

judgment dismissing all claims against MVE.




140435F.P05                                             /Molly Francis/
                                                        MOLLY FRANCIS
                                                        JUSTICE




                                                 –10–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MY VACATION EUROPE, INC.,                           On Appeal from the County Court at Law
Appellant                                           No. 5, Dallas County, Texas
                                                    Trial Court Cause No. CC-13-06937-E.
No. 05-14-00435-CV         V.                       Opinion delivered by Justice Francis,
                                                    Justices Lang-Miers and Fillmore
CONNIE SIGEL, Appellee                              participating.

       In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
denying the special appearance and RENDER judgment dismissing the claims against My
Vacation Europe, Inc. for want of personal jurisdiction.

       We ORDER that appellant MY VACATION EUROPE, INC. recover its costs of this
appeal from appellee CONNIE SIGEL.


Judgment entered January 26, 2015.




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