      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO.03-03-00314-CV



     Kirk Lee Botter and Darla Botter, Individually and as Next Friend of Cody Wyatt
                           Botter, a Minor Child, Appellants

                                                  v.

                             American Dental Association, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
         NO. GN203158, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING



                                           OPINION


               Appellants, Kirk Lee Botter and Darla Botter, individually and as next friend of Cody

Wyatt Botter, a minor child, bring this interlocutory appeal challenging the district court’s grant of

special appearance to appellee, the American Dental Association (the “ADA”), a not-for-profit,

voluntary, professional organization. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West

Supp. 2003); see also Tex. R. Civ. P. 120(a). The district court found that it did not have personal

jurisdiction over the ADA and issued findings of fact and conclusions of law supporting its decision.

We affirm the district court’s order granting the ADA’s special appearance.


                                         BACKGROUND

               The Botters sued the ADA, various other dental associations, her dentist, and dental

product companies alleging that Cody Botter had suffered birth defects arising from four amalgam
fillings placed in his mother’s mouth during her pregnancy with him. The Botters alleged that the

fillings contained mercury, and that while pregnant with Cody, Darla Botter breathed mercury gases

that emanated from the fillings. The Botters alleged that these gases caused Cody various medical

problems. The Botters further alleged that the ADA sold and supported the use of amalgam fillings,

through its seal of approval program and its publications, and that in fact the ADA prohibited

dentists from warning patients about amalgam fillings through its code of ethics. The ADA filed

a special appearance pursuant to Texas Rule of Civil Procedure 120(a), asserting that the Botters had

failed to sufficiently plead allegations to assert either specific or general personal jurisdiction over

it. See Tex. R. Civ. P. 120(a). The ADA is not a resident of Texas—its offices are located in

Chicago, Illinois. It contends that the Botters have not shown that it had sufficient contacts with

Texas to support personal jurisdiction. The district court granted the ADA’s special appearance.

See id. The Botters brought this interlocutory appeal challenging the district court’s grant of special

appearance. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).

                The Botters assert that the district court erred in granting the special appearance

because the ADA is subject to both specific and general jurisdiction due to its substantial contacts

with this state.1


        1
          The Botters also specifically assert that the district court erred by: (1) not requiring the
ADA to negate all of their allegations demonstrating personal jurisdiction; (2) refusing to consider
their second amended petition in making its determination; and (3) making erroneous findings of fact
and conclusions of law. As to the Botters’ first specific issue, the ADA did not have to negate every
allegation—it had to negate every basis of jurisdiction. Because we conclude that the Botters have
not met their initial burden of pleading sufficient allegations to support personal jurisdiction in this
case, the Botters’ first specific issue is moot. See BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 793 (Tex. 2002) (citing McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965)). As to
the Botters’ second issue, the district court refused to consider the Botters’ second amended petition

                                                   2
                                    STANDARD OF REVIEW

               The existence of personal jurisdiction is a question of law, but proper exercise of that

jurisdiction must sometimes be preceded by the resolution of underlying factual disputes.

Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 715 (Tex. App.—Austin 2000, pet.

dism’d w.o.j.). We determine the appropriateness of the district court’s resolution of those disputes

by an ordinary sufficiency-of-the-evidence review based on the entire record.               Conner v.

ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 411 (Tex. App.—Houston [14th Dist.] 1997, no

writ). We will set aside a finding of the trial court only if it is so against the great weight and

preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, 244



because it was filed after the special-appearance hearing. The Corpus Christi Court of Appeals, in
a similar situation, has concluded: “[t]he meaning of the term ‘pleadings’ must be limited at least
so as to exclude matters not filed prior to the special appearance hearing.” Frank A. Smith Sales, Inc.
v. Atlantic Aero, Inc., 31 S.W.3d 742, 747 (Tex. App.—Corpus Christi 2000, no. pet.). We agree
with our sister court. Accordingly, we conclude that the district court did not err by refusing to
consider the Botters’ second amended petition, and we will not consider the second amended petition
in our review. In the Botters’ third issue, the Botters specifically directed this Court to findings and
conclusions they believed are erroneous in order to substantiate their claim that the district court’s
grant of special appearance was erroneous as a whole. When a court issues findings of fact we are
to assume that they are valid unless they are challenged by the appellant, and when challenged we
set aside a finding of the trial court only if the finding is so against the great weight and
preponderance of the evidence as to be manifestly erroneous or unjust. See In re King’s Estate, 244
S.W.2d 660, 661 (Tex. 1951). Conclusions of law made by a district court are reviewed de novo.
See BMC Software Belgium, N.V, 83 S.W.3d at 794. In this case, however, much of the evidence,
proffered by the Botters, on which the district court may have relied was improper, as discussed
below. Ultimately, we had to review the record without that evidence in our determination. Any of
the findings made by the district court that this Court uses in its determination are addressed in the
opinion because we have concluded that they are not so against the great weight and preponderance
of the evidence as to be manifestly erroneous or unjust. Because we affirm the district court’s grant
of special appearance, concluding that given the entire record, the Botters have not pled allegations
sufficient to confer personal jurisdiction, we do not further analyze each of the Botters’ specific
points separately in this opinion.

                                                   3
S.W.2d 660, 661 (Tex. 1951); Runnells v. Firestone, 746 S.W.2d 845, 849 (Tex. App.—Houston

[14th Dist.] 1988, writ denied). In reviewing such a point of error, we must consider and weigh all

of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence

that tends to disprove its existence. Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex. 1989); Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986). In considering the evidence, if a finding is so contrary to

the great weight and preponderance of the evidence as to be manifestly unjust, the finding should

be set aside, regardless of whether some evidence supports it. Watson v. Prewitt, 320 S.W.2d 815,

816 (Tex. 1959); King’s Estate, 244 S.W.2d at 661.

               If evidence supports the implied findings of fact, we must uphold the trial court’s

judgment on any legal theory supported by the findings. Worford v. Stamper, 801 S.W.2d 108, 109

(Tex. 1990); Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); Runnells, 746

S.W.2d at 848. This is so regardless of whether the trial court articulates the correct legal reason for

the judgment. Harrington v. Railroad Comm’n, 375 S.W.2d 892, 895 (Tex. 1964); Fish v. Tandy

Corp., 948 S.W.2d 886, 891-92 (Tex. App.—Fort Worth 1997, writ denied). We review the legal

conclusions supporting the judgment to determine whether they are correct as a matter of law.

Lawrence v. Kohl, 853 S.W.2d 697, 699 (Tex. App.—Houston [1st Dist.] 1993, no writ).


                                           DISCUSSION

Personal Jurisdiction

               A Texas court may exercise personal jurisdiction over a nonresident defendant if (1)

jurisdiction is authorized by the Texas long-arm statute and (2) the exercise of jurisdiction is

consistent with federal and state due process standards. See Guardian Royal Exch. Assurance, Ltd.

                                                   4
v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991); Transportacion Especial

Autorizada, S.A. v. Seguros Comercial America, S.A., 978 S.W.2d 716, 719 (Tex. App.—Austin

1998, no pet.). The Texas long-arm statute grants Texas courts jurisdiction to the full extent

permitted by the United States Constitution. See Guardian Royal, 815 S.W.2d at 226. Thus, the

only limitations on Texas courts in asserting personal jurisdiction over a nonresident defendant are

those imposed by the Due Process Clause of the Fourteenth Amendment. See Helicopteros

Nacionales de Colombia v. Hall, 466 U.S. 408, 413-14 (1984). Due process requires a showing that

the nonresident defendant has purposefully established “minimum contacts” with Texas and that the

maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” See

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Guardian Royal, 815 S.W.2d at

230-31.

               Although the jurisdiction of Texas courts is always dependent on the defendant’s

having some minimum contacts with Texas, the requisite extent of those contacts varies depending

on the type of in personam jurisdiction sought to be imposed. Thus, the United States Supreme

Court has refined the minimum-contacts analysis into specific and general jurisdiction. See

Guardian Royal, 815 S.W.2d at 227 (citing Helicopteros, 466 U.S. at 414-16).

               To establish specific jurisdiction, the cause of action must arise out of or relate to the

nonresident defendant’s contact with the forum state and the conduct must have resulted from that

defendant’s purposeful conduct, not the unilateral conduct of the plaintiff or others. See id. (citing

Helicopteros, 466 U.S. at 414 n.8, 417; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

293-94, 298 (1980)). Thus, in analyzing minimum contacts for purposes of Texas courts’ specific


                                                   5
jurisdiction, we focus on the relationship among the nonresident defendant, the forum, and the

litigation. See id. (citing Helicopteros, 466 U.S. at 414; Schlobohm v. Schapiro, 784 S.W.2d 355,

357 (Tex. 1990)). In an effort to ensure compliance with the federal constitutional standard, the

Texas Supreme Court has designed its own formula for specific jurisdiction:


       (1) The nonresident defendant or foreign corporation must purposefully do some act
           or consummate some transaction in the forum state;

       (2) The cause of action must arise from, or be connected with, such act or
           transaction; and

       (3) The assumption of jurisdiction by the forum state must not offend traditional
           notions of fair play and substantial justice, consideration being given to the
           quality, nature, and extent of the activity in the forum state, the relative
           convenience of the parties, the benefits and protection of the laws of the forum
           state afforded the respective parties, and the basic equities of the situation.


Schlobohm, 784 S.W.2d at 358 (citing O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex. 1966)).

               An assertion of general jurisdiction compels a more demanding minimum-contacts

analysis than an assertion of specific jurisdiction and requires a showing of substantial activities

within the forum state. Id. at 357. The cause of action need not arise from or relate to the

nonresident defendant’s purposeful conduct within the forum state, but there must be “continuous

and systematic contacts” between the nonresident defendant and the forum state. See id. (citing

Helicopteros, 466 U.S. at 414-16). The ultimate test of minimum contacts for both general and

specific jurisdiction is whether the defendant purposefully availed itself of the privilege of

conducting activities in Texas, thereby invoking the benefit and protection of Texas laws. Id. at

357-58. This requirement ensures that a nonresident defendant will be haled into court only as a


                                                 6
result of its intentional activities, so that it is reasonable for the nonresident defendant to expect the

call of a Texas court. Guardian Royal, 815 S.W.2d at 226; Schlobohm, 784 S.W.2d at 357-58.


Burden of proof

                In Texas, a plaintiff bears the initial burden of pleading allegations sufficient to bring

a nonresident defendant within the provisions of the long-arm statute—allegations sufficient to show

the requisite minimum contacts with the forum state. BMC Software Belgium, N.V. v. Marchand,

83 S.W.3d at 793 (citing McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965)). A defendant who

challenges a court’s exercise of personal jurisdiction through a special appearance carries the burden

of negating all bases of personal jurisdiction that the plaintiff has alleged. See Kawasaki Steel Corp.

v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); see also Scott v. Huey L. Cheramie, Inc., 833

S.W.2d 240 (Tex. App.—Houston [14th Dist.] 1992, no writ).

                The Botters allege (1) that the ADA markets and sells amalgam-related products in

Texas.2 Specifically, the Botters allege that the ADA markets amalgam through its seal of approval3

and through a pamphlet that refers to amalgam as “silver.” The Botters also assert that the ADA

sells “other materials,” including the ADA journal, directly to Texas dentists and non-members


        2
          The Botters originally alleged that the ADA sold amalgam. Their response to the special
appearance does not allege that the ADA sold amalgam itself. Regardless, the ADA has negated that
it has ever sold amalgam products. The district court found that the ADA had not sold amalgam
products. After consideration of the record, we conclude that the district court’s finding is
substantiated.
        3
          The ADA operates a seal of approval program. It tests dental products at the product
maker’s request and receives a fee to partially cover the cost of testing. Those products that the
ADA approves are stamped with the ADA seal of approval. Some amalgam products carry the ADA
seal of approval.

                                                    7
through its 800 number and website. They allege (2) that over 7,000 Texas dentists are members of

the ADA and that in order to become a member of a local or statewide dental association, a Texas

dentists must also become a member of the ADA. They allege (3) that every paying member of the

ADA is subject to the ADA’s code of ethics and that if a member disobeys the code, the member can

be subject to dismissal from the association. They also allege that the ethical code “gag[s] dentists

from warning patients of the toxicity of amalgams.” The Botters allege (4) that the ADA conducts

accreditation of Texas dental schools. They assert that the accreditation procedure requires physical

visits to Texas by ADA staff members and that the ADA has substantial control over the curriculum

in Texas dental schools through the accreditation process. The Botters allege (5) that the ADA

operates and derives income from its “ADA seal of approval” program. The Botters assert that the

amalgam products stamped with the ADA seal of approval are the “very substance of this litigation.”

The Botters allege (6) that the ADA administers and derives income from dental school entrance

exams in Texas as well as from administering continuing education programs in Texas. They allege

(7) that the ADA offers retirement and insurance packages to Texas dentists through its website and

that the ADA has conducted advertising campaigns in Texas such as the National Oral Cancer

Awareness campaign in Houston.


Application

               As to specific jurisdiction, the Botters argue that because the ADA endorses some

amalgam products through its seal of approval program, because it has distributed a pamphlet in

Texas condoning the use of amalgam fillings, and because Texas members of the ADA must abide



                                                 8
by the ADA code of ethics, the ADA has committed purposeful actions in Texas that caused this

litigation.4 See Schlobohm, 784 S.W.2d at 358.

               The fact that the ADA tests and approves dental products that may be sold in Texas

does not evidence a purposeful contact in Texas by the ADA. As to the pamphlet that the ADA

publishes about amalgam fillings, the record indicates that these pamphlets are only sent to dentists

in Texas upon request, and not the general public. Merely responding to requests for the pamphlet

does not show a purposeful contact in Texas. See American Type Culture Collection, Inc. v.

Coleman, 83 S.W.3d 801, 809-10 (Tex. 2002). As the supreme court has stated: “Jurisdiction based

upon the effects of extra-territorial conduct within a particular forum is proper only when the extra-

territorial conduct focuses upon the plaintiff residing in that forum.” National Indus. Sand Ass’n v.

Gibson, 897 S.W.2d 769, 776 (Tex. 1995). The Botters have not sufficiently alleged that the ADA’s

extra-territorial conduct was focused on the plaintiff in Texas. However, even if either of these

actions were purposeful contacts, neither caused the litigation in this case. As the district court

correctly found, there is no clear evidence in the record that the amalgam fillings that were put in

Darla Botter’s mouth carried the ADA seal of approval or that Darla Botter knew that some amalgam

products carried the seal of approval.5 We conclude that the Botters have not sufficiently alleged that

       4
          The Botters also allege that the ADA sells informational tools that support the use of
amalgam. As evidence of this, the Botters submitted a 2001 ADA catalog and current printouts from
the ADA website. For reasons explained later in this opinion, we will not use this evidence in our
analysis.
       5
         We have concluded after reviewing the record that this finding is not against the great
weight and preponderance of the evidence as to be manifestly erroneous or unjust. See In re King’s
Estate, 244 S.W.2d at 661. The only “evidence” that the amalgam product may have carried the
ADA seal of approval is the Botters’ assertion that their dentist said so in an affidavit, but the

                                                  9
the ADA, through its seal of approval program or pamphlet, acted purposefully in Texas and that

those actions caused the present litigation.

               The Botters also claim that because the Botters’ dentist is a member of the ADA, the

purposeful act of maintaining their dentist’s membership caused this litigation because the Botters’

dentist was subject to the ADA’s code of ethics. Even assuming that the ADA’s maintenance of

memberships with Texas dentists is a purposeful act in Texas, as the district court correctly found,

the ADA code of ethics does not deter dentists from warning patients about the possible side effects

of amalgam when implanting the fillings. The language in the code of ethics only discourages

dentists from extracting amalgam fillings without cause. Darla Botter sued the ADA because her

dentist did not warn her about amalgam fillings when he placed them in her mouth. Thus, the fact

that the ADA included the Botters’ dentist as a member, and thereby subjected him to its code of

ethics, could not have caused the present litigation.

               The Botters have not sufficiently alleged that the ADA committed a purposeful act

in Texas that caused this litigation. We affirm the district court’s findings and affirm its conclusion

that it does not maintain specific jurisdiction over the ADA.

               With regard to general jurisdiction, it is our task to determine whether there are

“continuous and systematic contacts” between the nonresident defendant, the ADA, and the forum

state. Schlobohm, 784 S.W.2d at 357. “All contacts must be carefully investigated, compiled,

sorted, and analyzed for proof of a pattern of continuing and systematic activity.” Id. at 359. Thus,



affidavit was not in the record. Regardless, the Botters have not shown the ADA’s maintenance of
the seal of approval program is a purposeful contact in Texas.

                                                  10
we must scrutinize the Botters’ allegations to determine whether the ADA’s contacts establish a

pattern of continuing and systematic activity.

                The Botters allege that the accreditation of Texas dental schools, the administration

of dental school entrance exams in Texas, the sale of products to Texas dentists (educational

products, not dental supplies) over the internet and through an 800 number, the substantial ADA

memberships here in Texas, the sale of the ADA journal to non-members, and the insurance and

retirement packages it offers to Texas dentists, all taken together, show that the ADA maintains

continuous and systematic contacts in Texas. None of the Botters’ litany of contacts is clearly

detailed in the record. Although it is true that a defendant bears the burden of negating the plaintiff’s

alleged bases of jurisdiction, the plaintiff must first show that what it alleges is actually a basis of

jurisdiction. See BMC Software Belgium, N.V., 83 S.W.3d at 793. The blanket statement that the

ADA does all of the above does not present the court with enough information to properly

investigate, compile, sort, and analyze the allegations for proof of a pattern showing continuing and

systematic activity. See Schlobohm, 784 S.W.2d at 357. Plaintiffs had ample opportunity to conduct

discovery in order to properly plead allegations showing jurisdiction under rule 120a, the rule

governing special appearances, yet failed to do so. See Tex. R. Civ. P. 120(a). Instead, the Botters

submitted printouts from the ADA’s current website as its main evidence of the above alleged

actions. As the information from the printouts is very general, this information does little to inform

the Court about the continuous and systematic manner of the ADA’s contacts in Texas.

Furthermore, as the ADA argues, the information on the ADA website is not probative in our




                                                   11
jurisdictional analysis because it is not the same information that was on the website6 when the

Botters’ action accrued. Texas authority implies that the relevant contacts are those up to the time

of the injury. See Scott v. Huey L. Cheramie, Inc., 833 S.W.2d 240, 242 (Tex. App.—Houston [14th

Dist.] 1992, no writ); Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 45 (Tex. App.—Houston

[14th Dist.] 1985), writ ref'd n.r.e., 699 S.W.2d 199 (Tex. 1985). Therefore, even the scant

information that is provided through the printouts from the current ADA website may not be

considered by this court in our jurisdictional analysis.7 The Botters also submitted a 2001 ADA

catalog displaying educational tools that the ADA offers for sale. This information again is

irrelevant to our determination because it does nothing to show what contacts the ADA had with

Texas in 1998, when the action accrued. See id.

               Our analysis of the Botters’ proffered evidence leaves us to consider only the

memberships that the ADA maintains in Texas. As the supreme court has recently noted: “An

organization that mails national newsletters and notices of acceptance of dues to a member company

in Texas has not purposefully established minimum contacts such that it could reasonably foresee

being sued in the courts of this state.” National Indus. Sand Ass’n, 897 S.W.2d at 774. Even though



       6
          The ADA also argues that the website is not probative in an “interactivity” analysis for
general jurisdiction for the same time-sensitivity reasons. Relying on our decision in Daimlier Benz,
we agree. See Daimlier Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707 (Tex. App.—Austin 2000,
pet. dism’d w.o.j.).
       7
          The Botters also submitted current website printouts from other organizations. We will not
rely on the information from those websites for the same reasons we do not rely on the ADA website
printouts. See Scott v. Huey L. Cheramie, Inc., 833 S.W.2d 240, 242 (Tex. App.—Houston [14th
Dist.] 1992, no writ); Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 45 (Tex. App.—Houston
[14th Dist.] 1985, writ ref'd n.r.e.), 699 S.W.2d 199 (Tex.1985).

                                                 12
in NISA there was only one member in Texas whereas, on our facts there are over 7,000, we do not

find this difference persuasive. See id. The supreme court has adamantly stated that the number of

contacts is not the determining factor in jurisdictional analyses; we must evaluate the quality of the

contacts. See Coleman, 83 S.W.3d at 809-10. Here, members of the ADA pay membership dues

to their local dental association which then sends a portion of the dues to the ADA. The ADA sends

its members newsletters and a periodical. ADA members must abide by the ADA code of ethics.

The Botters have not provided evidence that we can consider that reveals much more about the

relationship. We conclude, that given the evidence we may consider, the nature of the contacts

between member and organization in this case is similar to the nature of the contacts in NISA. We,

therefore, reach the same conclusion—that these contacts are not continuous and systematic.

               Finally, we are guided in our determination of general jurisdiction by the supreme

court’s recent decision in Coleman:


       General jurisdiction is premised on the notion of consent. That is, by invoking the
       benefits and protections of a forum’s laws, a nonresident defendant consents to being
       sued there. When a nonresident defendant purposefully structures transactions to
       avoid the benefits and protections of a forum’s laws, the legal fiction of consent no
       longer applies.


Coleman, 83 S.W.3d at 808. We note that the Botters have offered little evidence while the ADA

submitted evidence that it has designed its structure so that it rarely deals directly with its members

in their home state. It has structured a tri-partite system in which membership dues are paid to the

local and state associations which then pass along a percentage of the dues to the ADA. The ADA

has no offices in Texas. It does not share any employees with the local and state associations, and

                                                  13
it maintains no governance over them. The ADA explicitly admits that it has structured itself in this

manner so as to avoid suit in states other than Illinois, where its offices are located. A defendant

who structures its affairs to avoid personal jurisdiction may still be subject if it is “benefitted and

protected by Texas law,” but the Botter’s have not sufficiently indicated in what way, regardless of

the ADA’s intent not to be subjected to Texas courts, the ADA is “benefitted and protected by the

laws of Texas” through its alleged contacts with Texas. Schlobohm, 784 S.W.2d at 357-58. We

conclude that the Botters have not pled allegations sufficient to confer general jurisdiction over the

ADA.

                Because we have concluded that the ADA does not have sufficient contacts with

Texas to substantiate personal jurisdiction, we need not engage in a “traditional notions of fair play

and substantial justice” analysis, the second prong of the personal jurisdiction test. See International

Shoe Co., 326 U.S. at 316.

                                          CONCLUSION

                We affirm the district court’s order granting special appearance to the American

Dental Association.




                                                David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: December 18, 2003

                                                  14
