      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-09-00069-CV



                               Leesboro Corporation, Appellant

                                               v.

                                Claude Hendrickson, Appellee


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
             NO. 32594, HONORABLE ED MAGRE, JUDGE PRESIDING



                                         OPINION


                 In this interlocutory appeal, appellant Leesboro Corporation challenges the

trial court’s grant of appellee Claude Hendrickson’s special appearance. Leesboro sued Dixie

Demolition, Hendrickson, who is the owner and manager of Dixie Demolition, and several other

defendants on various claims related to a salvage operation at a power plant in Rockdale, Texas.

Leesboro brought tort claims against Hendrickson based on an alleged fraudulent misrepresentation

Hendrickson made while in Texas. Hendrickson filed a special appearance, asserting that he was

not amenable to personal jurisdiction because he was a resident of Alabama and did not

have sufficient minimum contacts with Texas. The trial court granted his special appearance

and dismissed all claims against him for lack of personal jurisdiction. We will affirm the trial

court’s order.
                                         BACKGROUND

               Hendrickson owns and operates Dixie Demolition, LLC (“Dixie”), a power plant

demolition company that operates out of Birmingham, Alabama. In September 2007, Dixie’s parent

company, Dixie Equipment, entered into a contract with Alcoa, Inc., to purchase and demolish

certain power plants at Alcoa’s aluminum plant in Rockdale, Texas. Dixie Equipment assigned its

rights in the Alcoa contract to Dixie, which later entered into a contract to sell most of the salvage

from the plant to Airways Recycling Group. Airways then entered into a contract with JNS

Enterprises to sell it some of the salvage from the Alcoa plant. Finally, Leesboro, a Texas

corporation, entered into a contract with JNS to purchase salvage materials from the Alcoa plant.

               Leesboro, however, was never able to purchase any of the salvage from the Rockdale

plant because, according to Dixie, Airways defaulted on its contract with Dixie, and Dixie made

other arrangements to sell the salvage materials. As a result, the subsequent contracts flowing down

from the defaulted contract, including Leesboro’s, were never completed. Based on the failure to

perform these contracts, Leesboro sued Dixie, Airways, and JNS for breach of contract. Leesboro

also sued Dixie, Hendrickson, and Airways for fraud in the inducement, fraudulent concealment,

interference with contractual relations, conversion, and violations of the Texas Theft Liability Act.

               Leesboro’s fraud claims against Hendrickson were based on its allegation that

Hendrickson had represented that he had signed, on behalf of Dixie, an agreement guaranteeing that

Leesboro would receive its salvage materials from the Rockdale plant regardless of the status of the

intervening contracts (“performance guarantee”). Specifically, Leesboro alleged that Hendrickson,

in order to induce Leesboro to enter into an agreement with JNS to purchase salvage rights and



                                                  2
deposit money under that purchase agreement, told Leesboro’s representative that he—i.e.,

Hendrickson—had signed the performance guarantee and that Leesboro would start receiving its

contracted salvage shipments once Leesboro paid the required deposit.

               In response to Leesboro’s claims against him, Hendrickson filed a special appearance

asserting that he was not subject to the personal jurisdiction of Texas courts because he was a

resident of Alabama and did not have sufficient minimum contacts with Texas to establish specific

jurisdiction over him. Hendrickson also filed an affidavit and corroborating deposition testimony

to support his assertion that he neither signed the performance guarantee nor represented that he had

signed the performance guarantee. Leesboro responded by offering the deposition testimony of its

representative stating that Hendrickson had made the representation. Leesboro also objected to the

admission of Hendrickson’s affidavit on the grounds that it contained inadmissible evidence. After

a hearing, the trial court granted the special appearance and dismissed Leesboro’s claims against

Hendrickson for lack of jurisdiction. Leesboro appeals.


                                          DISCUSSION

Personal Jurisdiction

               Leesboro’s first four issues on appeal challenge the trial court’s decision to grant

Hendrickson’s special appearance and its finding that it did not have personal jurisdiction over

Hendrickson. Specifically, Leesboro argues that (1) the trial court erred as a matter of law in

granting Hendrickson’s special appearance, (2) the evidence established as a matter of law that the

trial court had specific jurisdiction over Hendrickson, (3) the trial court erred in impliedly finding

and concluding that Hendrickson negated the existence of personal jurisdiction, and (4) the evidence


                                                  3
was legally and factually insufficient to support the trial court’s implied finding that Hendrickson

negated the existence of personal jurisdiction. Because these issues are closely related, we will

address them together.


(i) Standard of Review

                Whether a trial court has personal jurisdiction over a defendant is a question of law

that we review de novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).

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

the Texas long-arm statute. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807

(Tex. 2002). Once the plaintiff has pleaded sufficient jurisdictional allegations, the defendant filing

a special appearance then assumes the burden of negating all bases of personal jurisdiction alleged

by the plaintiff. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002).

“Because the plaintiff defines the scope and nature of the lawsuit, the defendant’s corresponding

burden to negate jurisdiction is tied to the allegations in the plaintiff’s pleading.” Kelly v. General

Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). However, the plaintiff’s pleadings are

not dispositive of the jurisdictional dispute, thus, both parties can present evidence either proving

or disproving the allegations. Id. at 658-59. The defendant can also negate jurisdiction on a legal

basis. Id. at 659.

                In making its jurisdictional determination, the trial court must, if necessary, resolve

questions of jurisdictional fact. BMC Software, 83 S.W.3d at 794. When the trial court does not

issue findings of fact and conclusions of law with its special-appearance ruling, as in this case, we

infer all fact findings necessary to support the trial court’s jurisdictional determination and any legal



                                                   4
theory that is supported by the evidence.           GJP, Inc. v. Ghosh, 251 S.W.3d 854, 870

(Tex. App.—Austin 2008, no pet.) (citing BMC Software, 83 S.W.3d at 795). Further, when the

appellate record includes the reporter’s and clerk’s records, as it does in this case, any implied

findings are not conclusive and may be challenged for legal and factual sufficiency. BMC Software,

83 S.W.3d at 795. Evidence is legally sufficient if there is more than a mere scintilla of evidence

to support the finding. Merrill Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, “rises

to the level that would enable reasonable and fair-minded people to differ in their conclusions.”

Burroughs Wellcome v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transportation Ins.

Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). Evidence is factually insufficient only if, in light of

the entire record, a finding is so against the great weight and preponderance of the evidence as to be

manifestly erroneous or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The trial court is

the sole judge of witness credibility and the weight to be given to testimony, and we “will not disturb

a trial court’s resolution of conflicting evidence that turns on the credibility or weight of the

evidence.” Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.—Austin 2005, no pet.). If we

determine that the trial court’s findings of jurisdictional fact are supported by sufficient evidence,

we decide as a matter of law whether those findings negate all bases for personal jurisdiction. GJP,

Inc., 251 S.W.3d at 871. In conducting our factual and legal sufficiency inquiry, we review all

relevant evidence that was before the trial court. Id.




                                                  5
(ii) General Principles

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

long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is

consistent with constitutional due-process guarantees. Moki Mac, 221 S.W.3d at 574. The Texas

long-arm statute authorizes the exercise of jurisdiction over nonresidents who do business in Texas.

Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990). “In addition to other acts that may

constitute doing business, a nonresident does business” in Texas if he “commits a tort in whole or in

part in [Texas].” Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2) (West 2008). 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).

               For purposes of asserting personal jurisdiction over a nonresident who does not

consent to jurisdiction, federal constitutional due-process requirements are met when the nonresident

defendant has established “minimum contacts” with the forum state and the exercise of jurisdiction

is consistent with “traditional notions of fair play and substantial justice.” Moki Mac, 221 S.W.3d

at 575. A “minimum-contacts analysis focuses solely on the actions and reasonable expectations of

the defendant.” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790 (Tex. 2005).

Minimum contacts 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.’” Moki Mac, 221 S.W.3d at 575 (quoting

Hanson v. Denckla, 357 U.S. 235, 253 (1958) (quoting International Shoe Co. v. State of

Washington, 326 U.S. 310, 319 (1945))). In determining whether a nonresident defendant has

                                                 6
purposefully availed itself of the privilege of conducting activities in Texas, “only the defendant’s

contacts with Texas are relevant, not the unilateral activity of another party or third person.” Id.

Further, “the contacts relied upon must be purposeful, rather than random, fortuitous, or attenuated,”

and the “‘defendant must seek some benefit, advantage, or profit by “availing” itself of the

jurisdiction.’” Id. (quoting Michiana, 168 S.W.3d at 785).

                A nonresident’s contacts with Texas may give rise to two types of personal

jurisdiction—general jurisdiction and specific jurisdiction. BMC Software, 83 S.W.3d at 795.

General jurisdiction is established when a nonresident defendant’s contacts with Texas are

“continuous and systematic,” regardless of whether the alleged liability arises from those contacts.

Id. at 796. In contrast, specific jurisdiction, which is the only ground for personal jurisdiction

alleged against Hendrickson in the present case, focuses on “the relationship among the defendant,

the forum[,] and the litigation.” Moki Mac, 221 S.W.3d at 575-76. “Specific jurisdiction is

established if the defendant’s alleged liability arises from or is related to an activity conducted within

the forum.” BMC Software, 83 S.W.3d at 796. Thus, for a Texas court to properly exercise specific

jurisdiction over Hendrickson in the present case, (1) Hendrickson must have made minimum

contacts with Texas by purposefully availing himself of the privilege of conducting activities here,

and (2) Hendrickson’s contacts with Texas must be substantially connected to the operative facts of

this litigation. See Moki Mac, 221 S.W.3d at 576, 585. If both of these requirements are met, we

then must determine if the exercise of specific jurisdiction over Hendrickson comports with

“traditional notions of fair play and substantial justice.” Id. at 575 (quoting International Shoe,

326 U.S. at 316).




                                                    7
(iii) Hendrickson’s Special Appearance

               Leesboro satisfied its initial jurisdictional burden by pleading sufficient allegations

to come within the Texas long-arm statute. See BMC Software, 83 S.W.3d at 793. Specifically,

Leesboro alleged that Hendrickson “committed fraud, fraudulent concealment, conversion, and other

torts in Texas” when Hendrickson made “material representations to plaintiff in June 2008, at

meetings in Rockdale, Texas, that Hendrickson [had signed a] performance guarantee agreement.”

               In response, Hendrickson filed a special appearance asserting that he was not subject

to personal jurisdiction in Texas because he was a resident of Alabama, not Texas, does not have real

estate, a bank account, or personal records in Texas, and has never entered into a contract or

conducted any business with any Texas business, citizen, or resident. Hendrickson also asserted that

he did not sign the performance guarantee as alleged by Leesboro. Hendrickson later filed an

affidavit in support of his special appearance attesting to those same facts and additionally asserting

that he never represented to Leesboro’s agent that he had signed the performance guarantee.

Hendrickson also offered the deposition testimony of Conrad Bar, another participant in the

Rockdale meeting, who corroborated Hendrickson’s affidavit testimony.

               Leesboro responded to Hendrickson’s special appearance and evidence by asserting

that the trial court had personal jurisdiction over Hendrickson for the following reasons:


       •       Hendrickson attended meetings in Rockdale, Texas and made representations
               regarding the performance guarantee;

       •       Hendrickson committed torts in Texas; and

       •       Given Hendrickson’s numerous, substantial contacts with Texas, the assertion of
               personal jurisdiction over him would not offend traditional notions of due process.



                                                  8
As evidence, Leesboro relied on Hendrickson’s admission that he attended the Rockdale meeting

and also on the deposition testimony of Daniel Lee, Leesboro’s representative to whom Leesboro

alleges Hendrickson made the misrepresentations at issue in this case. Leesboro also objected to

portions of Hendrickson’s affidavit on the grounds that they were impermissible factual and legal

conclusions. After reviewing the pleadings, evidence, and arguments of counsel, the trial court

sustained Hendrickson’s special appearance and dismissed the claims against Hendrickson for lack

of personal jurisdiction.

               In granting Hendrickson’s special appearance, the trial court did not make explicit

findings of fact or conclusions of law. However, to hold that Hendrickson was not amenable to

specific jurisdiction in Texas, the trial court impliedly determined that either (1) Hendrickson did

not have minimum contacts with Texas by purposefully availing himself of the privilege of

conducting activities in Texas, (2) Hendrickson’s contacts with Texas were not substantially

connected to the operative facts of the litigation, or (3) that its exercise of jurisdiction over

Hendrickson would offend traditional notions of fair play and substantial justice. We must infer

all findings of jurisdictional fact necessary to support the trial court’s ruling. BMC Software,

83 S.W.3d at 795.


(iv) Hendrickson’s Contacts

               We begin our jurisdictional analysis by examining Hendrickson’s alleged contacts

with Texas. See GJP, Inc., 251 S.W.3d at 868. Leesboro alleges that Hendrickson made the

following contacts with Texas:




                                                 9
        •       “[S]ubstantial business activity” for Dixie in Pasadena, Texas and Rockdale,
                Texas;

        •       Frequent travel to and from Texas on Dixie’s business;

        •       Attendance at a business meeting in Rockdale, Texas regarding Dixie’s Alcoa
                plant contract; and

        •       A Representation to Daniel Lee, Leesboro’s representative, at the Rockdale
                meeting, that Hendrickson has signed the performance guarantee.


Only the last of these alleged contacts could provide a basis for asserting specific jurisdiction over

Hendrickson individually because it alleges that Hendrickson committed fraud while in Texas. See

Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 581 (Tex. App.—Austin 2006, no pet.) (explaining

that individual acting in corporate capacity may be subject to personal jurisdiction for fraudulent or

tortious actions). In contrast, the first three of these alleged contacts (collectively, “general business

contacts”) provide no basis for asserting specific jurisdiction over Hendrickson because they are

Dixie’s contacts with Texas, not Hendrickson’s. See, e.g., International Shoe, 326 U.S. at 316

(“Since the corporate personality is a fiction, although a fiction intended to be acted upon as though

it were a fact, . . . it is clear that unlike an individual its ‘presence’ without, as well as within, the

state of its origin can be manifested only by activities carried on in its behalf by those who are

authorized to act for it.”). A corporate representative’s acts on the corporation’s behalf are

considered acts of the corporation itself, Latcher v. Gratty, Inc., 107 S.W.3d 543, 545 (Tex. 2007),

and, thus, a corporate representative’s non-tortious acts on the corporation’s behalf do not constitute

a contact for purposes of personal jurisdiction over the corporate representative, see, e.g., Wolf v.

Summers-Wood, L.P., 214 S.W.3d 783, 792 (Tex. App.—Dallas 2007, no pet.) (concluding that no



                                                   10
specific jurisdiction existed where officer contracted in corporate capacity). Leesboro does not assert

that Hendrickson individually conducted business in Texas. Accordingly, Hendrickson’s general

business contacts with Texas as a representative of Dixie cannot provide a basis for specific

jurisdiction over Hendrickson.

               In contrast, Leesboro’s allegation that Hendrickson committed fraud in Texas could

provide a basis for exercising specific jurisdiction over Hendrickson because tortious or fraudulent

contacts by a corporate representative are attributable to that representative individually. See

Niehaus, 208 S.W.3d at 581; see also Kelly, 301 S.W.3d at 660 (explaining that specific jurisdiction

over corporation’s officers for alleged wrongdoing requires that plaintiff “plead and, when

challenged by the defendant[], present evidence that the Officer[’]s[] relevant acts (i.e., those

connected to [plaintiff’s] claims) occurred, at least in part, in Texas”). Further, Hendrickson’s

alleged contact—i.e., the alleged misrepresentation—is substantially connected to the operative facts

of Leesboro’s fraud claim. See Moki Mac, 221 S.W.3d at 585; see also In re FirstMerit Bank, N.A.,

52 S.W.3d 749, 758 (Tex. 2001) (elements of fraud). Finally, if Hendrickson committed a tort in

Texas, the exercise of specific jurisdiction over him would not normally offend traditional notions

of fair play and substantial justice. See Morris v. Kohls-York, 164 S.W.3d 686, 694-95 (Tex.

App.—Austin 2005, pet. dism’d) (concluding that the “allegation that the [defendants] committed

torts while in Texas leads us to conclude that the exercise of specific jurisdiction over the

[defendants] does not offend ‘traditional notions of fair play and substantial justice’”). Thus,

Leesboro’s allegation that Hendrickson committed a tort at the Rockdale meeting is the only contact

asserted by Leesboro that can provide a basis for exercising specific jurisdiction over Hendrickson.



                                                  11
               Hendrickson, however, disputed that he made the alleged misrepresentation and

provided evidence to the trial court supporting his contention. This presented a jurisdictional

question of fact that the trial court had to resolve, see BMC Software, 83 S.W.3d at 795 (“[T]he trial

court frequently must resolve questions of fact before deciding the jurisdiction question.”), because

it involved Hendrickson’s alleged contacts with Texas, see Michiana, 168 S.W.3d at 785 (holding

that only defendant’s contacts with Texas are considered in determining purposeful availment). It

was necessary for the trial court to resolve this question of fact because if Hendrickson did not make

a misrepresentation to Leesboro, he individually did not contact Texas for jurisdictional purposes.

Without a Texas contact, Texas courts cannot assert personal jurisdiction over a nonresident

defendant. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (“[T]he

foreseeability that is critical to due process analysis . . . . is that the defendant’s conduct and

connection with the forum State are such that he should reasonably anticipate being haled into court

there.”). Therefore, because Hendrickson’s alleged contact with Texas is the only jurisdictional

inquiry at issue here and because the trial court found that it lacked personal jurisdiction over

Hendrickson, we must infer that the trial court found that Hendrickson did not have sufficient

minimum contacts with Texas because Hendrickson did not make the alleged misrepresentation. See

GJP, Inc., 251 S.W.3d at 870. Having determined that the trial court made that implied finding, we

must now determine if that implied finding is supported by legally and factually sufficient evidence.

See Kelly, 301 S.W.3d at 659 n.7.


(v) Legal and Factual Sufficiency




                                                 12
               In support of his contention that he did not make a misrepresentation at the Rockdale

meeting, Hendrickson offered into evidence his own affidavit and the deposition testimony of

Conrad Bar, who also participated in the Rockdale meeting. Hendrickson’s affidavit states “I have

never represented to [Leesboro’s representative] or anyone else that I signed the [performance

guarantee].”   Bar corroborated Hendrickson’s affidavit by confirming that he did not hear

Hendrickson make any representations regarding the performance guarantee during the Rockdale

meeting. At deposition, Bar testified:


       Q:      Were you there for that whole meeting, the whole—there’s a first meeting in
               the trailer?

       A:      Yes, sir.

       Q:      Were you there for that whole meeting?

       A:      I believe so.

       Q:      Were—did you ever see Mr. Hendrickson and [Leesboro’s representative] go
               off for a private meeting outside your presence?

       A:      I did not.

       Q:      Did that occur?

       A:      Not that I saw.

       Q:      Were you there for the discussions that Mr. Hendrickson was involved in?

       A:      Yes.

       Q:      And did Mr. Hendrickson make any statement to [Leesboro’s representative]
               that indicated that he had in any way signed [the performance guarantee]?

       ....

       A:      I did not hear of any statements. I have no knowledge of that.

                                                13
       Q:      You were there for the whole meeting?

       A:      Yes, sir.

       Q:      And you were there for the whole dinner at the piano bar?

       A:      Yeah, yes, sir.

       Q:      And did Mr. Hendrickson say anything to [Leesboro’s representative] or
               anybody that indicated that he had signed the [performance guarantee]?

       ....

       A:      Not to my knowledge.

       ....

       Q:      Did you ever hear Mr. Hendrickson say anything that indicated that he had
               signed or agreed to the—the [performance guarantee]?

       A:      No.

       Q:      Did you have any reason to believe that he had?

       A:      No.


Leesboro offered the deposition testimony of Daniel Lee (Leesboro’s representative) to support its

contention that Hendrickson made the alleged representation at the Rockdale meeting:


       Q:      Aside from [the performance guarantee], do you have any writing that
               [Hendrickson] has signed guarant[ee]ing anything to Leesboro?

       A:      Actually, I tried, but he—he denied it. He said he already signed one
               guarant[ee], he is not going to sign another one.

       Q:      [Hendrickson] told you he signed a guarant[ee]?

       A:      Yes. Yes.

       Q:      And what guarant[ee] was he referring to?

                                               14
       A:      This one (indicating).

       Q:      [The performance guarantee]?

       A:      Yes.

       Q:      [Hendrickson] told you he signed [the performance guarantee]?

       A:      Yes.

       Q:      When did he tell you that?

       A:      On our first meeting, on or about the first week of June.


               Considering the evidence in the light most favorable to the judgment and indulging

every reasonable inference that would support the trial court’s implied finding, we conclude that a

reasonable and fair-minded person could conclude that Hendrickson made no misrepresentation at

the Rockdale meeting regarding the performance guarantee. Accordingly, the evidence is legally

sufficient to support the trial court’s implied finding. Based on our review of all the evidence, we

also conclude that the trial court’s implied finding that Hendrickson made no representation

regarding the performance guarantee was not against the great weight and preponderance of the

evidence. While there was testimony from Leesboro’s representative that Hendrickson made the

representation to him at the Rockdale meeting, there is conflicting testimony suggesting that

Hendrickson made no misrepresentation at that meeting. It is for the trial court, however, to resolve

such conflicts. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex. 1986). The court could

have credited the testimony of Hendrickson and Bar to conclude that Hendrickson made no




                                                 15
representation. Accordingly, we conclude that the trial court’s implied finding was supported by

factually sufficient evidence.


(vi) Jurisdictional Questions of Fact

                Leesboro argues that the question of whether Hendrickson made the representation

is not a jurisdictional fact that the trial court can resolve at a special-appearance hearing because the

existence of a misrepresentation is an “essential element” of Leesboro’s fraud claims. Specifically,

Leesboro contends that Michiana held that a judge should decide personal jurisdiction based on

“physical facts” and not on whether tort liability exists, and, therefore, a trial court cannot determine

any jurisdictional facts that may ultimately implicate the merits of the plaintiff’s claim. Leesboro

bases this assertion on the following language in Michiana:


        Business contacts are generally a matter of physical fact, while tort liability
        (especially in misrepresentation cases) turns on what the parties thought, said, or
        intended. Far better that judges should limit their jurisdictional decisions to the
        former rather than involving themselves in trying the latter.


Michiana, 168 S.W.3d at 791. Leesboro contends that the only relevant jurisdictional fact in the

present case is that Hendrickson attended the meeting in Rockdale, Texas where the alleged

misrepresentation occurred. Therefore, Leesboro argues, the trial court erred if it made a fact finding

that Hendrickson did not make the representation and then used that finding to determine

jurisdiction. We disagree with Leesboro’s interpretation of Michiana.

                First, the question of whether Hendrickson uttered the words in the Rockdale meeting

involves a “physical” fact. Regardless, however, and crucial to our decision here, Michiana does



                                                   16
not stand for the proposition that a trial court may never consider facts that may affect ultimate

liability when determining specific jurisdiction. Michiana stands for the proposition that a

minimum-contacts analysis must focus only on the actions and reasonable expectations of the

defendant, and that specific jurisdiction depends on whether the defendant had sufficient contacts

with Texas, not on whether those contacts were tortious. Id. at 790-92. Further, Michiana

recognizes that a trial court may have to resolve questions of fact in deciding personal jurisdiction

issues, but cautions against unnecessary inquiries into liability issues. See id. Thus, while it is

preferable to avoid factual inquiries involving underlying liability, a trial court must analyze the

defendant’s contacts with Texas, if any, and resolve any necessary factual questions relating to those

contacts even if those questions may relate to liability.

               Here, Hendrickson’s only individual contact with Texas was the disputed

misrepresentation to Leesboro’s agent. As discussed previously, all of the other contacts with Texas,

including his attendance at the meeting and any non-tortious acts or statements on behalf of Dixie,

were Dixie’s jurisdictional contacts with Texas because Hendrickson made them as Dixie’s

representative. See Wolf, 214 S.W.3d at 792. In other words, as long as Hendrickson was

conducting Dixie business, he was surrounded by a protective “cocoon” that insulated him from

making jurisdictional contact with Texas. But he could step out of that cocoon, and thus make

jurisdictional contact with Texas, by, for example, committing a tort. So, although Hendrickson was

physically present in Texas when he was conducting business for Dixie, his presence here did not

satisfy jurisdictional contact requirements unless and until he made the alleged misrepresentation.




                                                 17
Accordingly, the alleged action by Hendrickson that gave rise to Leesboro’s fraud claims is also the

only basis for asserting specific jurisdiction over Hendrickson individually.

                Because the parties provided conflicting evidence regarding whether the

misrepresentation occurred, the trial court was required to resolve whether Hendrickson made the

alleged statement in order to make its jurisdictional determination. Thus, the trial court had to make

a factual determination or resolve a credibility issue regarding a matter that related to liability. To

do otherwise—i.e., to refuse to consider whether Hendrickson made the alleged contact because it

is also the basis for the underlying liability—would mean that Hendrickson’s “purposeful availment

depends on the form of [the] claim selected by the plaintiff.” See Michiana, 168 S.W.3d at 791

(rejecting such a standard). Under that standard, a plaintiff could establish specific jurisdiction over

a corporate representative conducting corporate business in Texas by simply alleging that the

representative committed a tort while in Texas. But Michiana expressly rejects any specific

jurisdictional analysis that is dependent on the plaintiff’s actions or choices. Id. at 791-92; see also

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (“Jurisdiction is proper . . . where the

contacts proximately result from actions by the defendant himself that create a substantial connection

with the forum State.”). Accordingly, we hold that if the nonresident defendant’s only jurisdictional

contact with Texas is an alleged misrepresentation and the nonresident defendant denies that the

misrepresentation occurred and provides evidence to support his denial, then the trial court must

decide for jurisdictional purposes whether the misrepresentation—and therefore the nonresident’s

contact—occurred, regardless of whether that contact is also an element of liability. See Kelly,




                                                  18
301 S.W.3d at 659 (“Factually, the defendant can present evidence that it has no contacts with Texas,

effectively disproving the plaintiff’s allegations.”).

               Having determined that it was proper for the trial court to resolve the question of fact

regarding Hendrickson’s contacts with Texas and having determined that there is legally and

factually sufficient evidence to support the trial court’s implied finding that Hendrickson did not

make the alleged representation, we conclude that, as a matter of law, Hendrickson lacked sufficient

minimum contacts with Texas to support the assertion of specific jurisdiction. Accordingly, the trial

court did not err in granting Hendrickson’s special appearance and dismissing all claims against him.

We overrule Leesboro’s first four issues.


Objections to Hendrickson’s Affidavit

               In its final issue on appeal, Leesboro argues that the trial court erred in overruling its

objections to certain statements in Hendrickson’s affidavit because those statements are vague,

“conclusory,” and failed to set forth facts admissible in evidence. Specifically, Leesboro objects to

the following statements:


       •       “I have never, in my individual capacity, entered into a contract or conducted
               any business with any Texas businesses, citizen or resident.”

       •       “I did not sign, nor did I have any involvement with the document attached
               as Exhibit ‘A’ to Leesboro’s Third Amended Petition.”

       •       “I did not receive or accept payments from JNS Enterprises or its agents.”


Assuming without deciding that the trial court erred by not striking these statements, that error was

harmless because these statements do not affect the analysis of whether specific jurisdiction is proper



                                                  19
in this case. See Tex. R. App. P. 44.1; see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394,

396 (Tex. 1989). To show harm from an evidentiary ruling, the complaining party usually must

demonstrate that the judgment turns on the particular evidence excluded or admitted. City of

Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). A jurisdictional analysis turns on

the nonresident defendant’s contacts with Texas. See Michiana, 168 S.W.3d at 791-92. Here,

Leesboro did not allege that Hendrickson conducted business in Texas. Instead, Leesboro alleged

that Hendrickson was subject to specific jurisdiction based on Dixie’s general business contacts and

because Hendrickson committed a tort in Texas by making a misrepresentation about signing the

performance guarantee. The statements to which Leesboro objects do not directly relate to either of

those contentions. Rather, they address whether Hendrickson conducted business in Texas or had

any “involvement” with the performance guarantee. Further, assuming that “involvement” with the

performance guarantee also encompasses making the alleged misrepresentation, any error in

admitting this statement is harmless because the information was cumulative of another affidavit

statement to which Leesboro did not object. See Reina v. General Accident Fire and Life Assurance

Corp., Ltd., 611 S.W.2d 415, 417 (Tex. 1981) (holding that the “exclusion of cumulative evidence

is not reversible error”); Mauzy v. Sutliff, 125 S.W.3d 71, 80 (Tex. App.—Austin 2003, pet. denied)

(determining that cumulative nature of testimony renders error harmless); see also Volkswagen of

Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (“The general rule is error in the admission

of testimony is deemed harmless and is waived if the objecting party subsequently permits the same

or similar evidence to be introduced without objection.”). Thus, any error in admitting the affidavit

testimony was harmless because it could not have resulted in an improper jurisdictional

determination. Accordingly, we overrule Leesboro’s fifth issue.

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                                         CONCLUSION

               We hold that the trial court properly granted Hendrickson’s special appearance

because Hendrickson successfully negated specific jurisdiction by establishing that he had no

individual contacts with Texas sufficient to meet the minimum contacts required by due-process

concerns. We affirm the order of the trial court granting Hendrickson’s special appearance and

dismissing the claims against him for lack of personal jurisdiction.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: October 1, 2010




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