                   In the
              Court of Appeals
      Second Appellate District of Texas
               at Fort Worth
            ___________________________
                 No. 02-18-00178-CV
            ___________________________

      ENERQUEST OIL & GAS, L.L.C., Appellant

                            V.

    ANTERO RESOURCES CORPORATION, Appellee



          On Appeal from the 141st District Court
                   Tarrant County, Texas
              Trial Court No. 141-290089-17


      Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion on Rehearing by Chief Justice Sudderth
               MEMORANDUM OPINION ON REHEARING

      Appellee Antero Resources Corporation filed a motion for rehearing and a

motion for rehearing en banc of our January 31, 2019 memorandum opinion. The

court’s prior memorandum opinion and judgment are withdrawn, and this

memorandum opinion and judgment are substituted. Thus, the motions for rehearing

and for rehearing en banc are denied as moot.

                                  I. Introduction

      Antero intervened in a lawsuit and brought a trade secret misappropriation

claim against Appellant EnerQuest Oil & Gas, L.L.C. EnerQuest filed a special

appearance challenging the trial court’s personal jurisdiction. After the trial court

overruled EnerQuest’s special appearance, EnerQuest filed this accelerated,

interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7). We

reverse and render.

                                  II. Background

A. The Parties

      Antero is a corporation headquartered in Colorado and is engaged in the

business of oil and gas exploration and production in West Virginia. EnerQuest is a

limited liability company, organized under the laws of Oklahoma. EnerQuest is also

in the oil and gas exploration and production business, operating oil and gas wells in

Oklahoma, Texas, Louisiana, Utah, and Arkansas, and owning nonoperating oil and

gas interests in numerous other states. Although it is registered and conducts some
                                          2
business in Texas, EnerQuest maintains no offices or employees in Texas and is

headquartered in Oklahoma.

      In November 2015, EnerQuest entered into a “Limited Liability Company

Agreement” (Formation Agreement) with Braxton Minerals-Appalachia, LLC (BMA)1

to form Braxton Minerals III, LLC (BMIII)—a limited liability company organized

under and to be governed by the laws of Delaware with its principal place of business

in Texas—in order to “acquire, own, hold, and maintain Oil and Gas Interests in the

Buy Area . . . .” The Formation Agreement defines “Buy Area” as “the States of West

Virginia, Pennsylvania, and Ohio.” The Formation Agreement, which was signed by

EnerQuest’s president Gregory Olson and by BMA’s president at the time Brad

Ashburn,2 provided that EnerQuest and BMA would be the sole members of BMIII

with EnerQuest providing up to $10 million in investment capital and owning a 75%

interest and BMA owning a 25% interest. The parties also agreed that BMA would be

BMIII’s manager and that any action or proceeding relating to the Formation

Agreement “shall be exclusively brought in any state or federal court located in

Oklahoma City, Oklahoma and . . . waive[d] any objection . . . to the laying of venue




      1
       BMA is a limited liability company organized under the laws of Texas.

      BMA, along with Braxton Energy, LLC; Braxton Acquisitions, LLC; and
      2

Braxton Minerals II, LLC (BMII), is allegedly owned and controlled by Scott Bauer.
Ashburn was formerly affiliated with Bauer’s various companies.

                                         3
of any action or proceeding arising out of or in connection with this Agreement

brought in such courts . . . .”

       For convenience and clarity, we have diagrammed the relationship between

these entities:




B. The Dispute and Lawsuit

       Penn Investment Funds, LLC filed a lawsuit in the 141st District Court in

Tarrant County against seven defendants, including Braxton Energy, LLC; Braxton

Acquisitions, LLC; BMII; Bauer; and Ashburn, alleging fraud and other causes of




                                       4
action and seeking disgorgement of approximately $225,000 in illegal profits.3 Antero,

believing that profits sought by Penn Investment had been generated in connection

with the misappropriation of Antero’s trade secrets, intervened and added, inter alia,

EnerQuest as a party. Antero sought injunctive relief and damages based on trade

secret misappropriation, conspiracy, and aiding and abetting from various parties in

the lawsuit. The only claim Antero’s “amended petition in intervention” asserts

against EnerQuest is trade secret misappropriation.4

      At the crux of its lawsuit, Antero alleges that Bauer and Ashburn participated in

an unlawful scheme to obtain Antero’s confidential documents5 and trade secrets


      3
       According to Penn Investment, Braxton Energy, LLC violated the terms of a
$1.6 million loan and used approximately $225,000 of the funds for profit
disbursements rather than applying 100% of the loan to the acquisition of West
Virginia mineral interests as required by the terms of the loan.
      4
        In its brief, Antero vaguely asserts that it has amended its pleading to “clarify
its conspiracy allegations.” However, the amended petition in intervention is Antero’s
only pleading in the clerk’s record before us and it does not allege a conspiracy claim
against EnerQuest. See Atchison v. Weingarten Realty Mgmt. Co., 916 S.W.2d 74, 76 (Tex.
App.—Houston [1st Dist.] 1996, no writ) (“The general rule is that the court cannot
consider an item that is not part of the record on appeal.”); cf. Favour Leasing, LLC v.
Mulligan, No. 05-13-01000-CV, 2014 WL 4090130, at *9 (Tex. App.—Dallas Aug. 19,
2014, no pet.) (mem. op. on reh’g) (stating that when there is no testimony at the
hearing, courts decide whether the trial court erred in denying the special appearance
“from a review of the clerk’s record alone”).
      5
        The three documents at issue are (1) a “Critical Date Report,” (2) a “SWN
June 2016 Acquisition Defects report,” and (3) certain title opinions reflecting legal
rights and ownership in surface estates and mineral interests in land located in West
Virginia. The Critical Date Report reflects Antero’s dates of drilling and dates for first
gas and oil sales from the wells. The SWN June 2016 Acquisition Defects report
reflects due diligence conducted by Antero in its acquisition of certain West Virginia
                                           5
concerning Antero’s oil-and-gas business opportunities in West Virginia. According

to Antero’s allegations, Bauer and Ashburn then disclosed the confidential

information to additional parties, including EnerQuest.

       Antero contends that EnerQuest both actively participated in and passively

benefited from the misappropriation of the trade secrets. First, Antero alleges that

EnerQuest, through an e-mail from its president Gregory Olson, “reached out” to

Bauer in order to acquire and thereby misappropriate Antero’s trade secrets. Second,

Antero alleges that the trade secrets were utilized by BMII to purchase assets, adverse

to Antero, which were then sold to BMIII and funded by EnerQuest as contemplated

by the Formation Agreement.        So when EnerQuest later removed BMA and

appointed itself as manager of BMIII, EnerQuest, by virtue of its ownership and

management of BMIII, improperly benefited from the misappropriation of Antero’s

trade secrets.

       EnerQuest admits that it did receive the alleged trade secrets in February 2017

“in Oklahoma” but denies wrongdoing or unlawful activity as alleged by Antero.

Rather, EnerQuest disavows any knowledge that Bauer, the individual who

approached EnerQuest with an opportunity to invest new capital in a mineral

acquisition program in West Virginia, had obtained any trade secrets. According to


leases. And the title opinions reflect Antero’s counsel’s position concerning the
ownership of minerals and the rights to develop such minerals for land located in
West Virginia.

                                          6
EnerQuest, it did not learn about the misappropriation accusations until February

2018, at which point EnerQuest turned over the alleged trade secrets to Antero.

According to Olson, EnerQuest neither discussed the information with anyone

outside of EnerQuest (other than Bauer and Ashburn), nor disclosed the information

to anyone outside of EnerQuest.

C. The Special Appearance Proceedings

      EnerQuest filed a special appearance, see Tex. R. Civ. P. 120a, contending that

the trial court had neither general nor specific personal jurisdiction over it. In its

special appearance, EnerQuest argued that the trial court had no general jurisdiction

over it because EnerQuest was organized under the laws of Oklahoma and

maintained its principal place of business in Oklahoma. EnerQuest argued that there

was no specific jurisdiction over it because none of the actions alleged by Antero

arose from any activity by EnerQuest that was intentionally or purposefully directed at

the State of Texas. EnerQuest further argued that any damages sustained by Antero

from such disclosure or use would be realized in West Virginia, where the subject

properties were located, or in Colorado, where Antero’s corporate headquarters were

located, and not in Texas. EnerQuest supported its special appearance by attaching,

among other documents, an affidavit from Olson and the Formation Agreement.

      As part of its response to EnerQuest’s special appearance, Antero sought a

continuance to conduct discovery limited to the issue of personal jurisdiction. Antero

also argued that the special appearance should be denied because EnerQuest had a
                                          7
75% ownership interest in BMIII, a Texas entity run by Texans Bauer and Ashburn,

and because BMIII had its principal place of business in Texas. According to Antero,

Bauer and Ashburn improperly acquired Antero’s trade secrets and provided them to

EnerQuest at EnerQuest’s request. Antero also argued that when, at EnerQuest’s

request, Bauer and Ashburn improperly provided the alleged trade secrets to

EnerQuest, EnerQuest received that information from Texas and sent money to

Texas for investment. Antero further asserted that EnerQuest—via an e-mail from

Olson to Bauer—had “reached out” to Bauer who was allegedly in Texas in order to

obtain and thereby misappropriate Antero’s trade secrets. However, Antero did not

raise general jurisdiction as a basis for jurisdiction over EnerQuest but instead argued

only for specific jurisdiction over EnerQuest.

      The trial court did not rule on Antero’s motion for continuance to conduct

discovery,6 and after a hearing, it overruled the special appearance. This interlocutory

appeal followed.


      6
        Antero conditionally argues that we should remand without rendering
judgment dismissing EnerQuest in order to permit the trial court to consider whether
more jurisdictional discovery is warranted. But Antero does not direct us to anywhere
in the record to show that the motion for continuance was ruled on nor have we
located “a clearly implied ruling by the trial court.” Seim v. Allstate Texas Lloyds, 551
S.W.3d 161, 166 (Tex. 2018); see Epicous Adventure Travel, LLC v. Tateossian, Inc., No.
08-18-00057-CV, 2019 WL 926278, at *10 (Tex. App.—El Paso Feb. 26, 2019, no pet.
h.) (relying on Seim in overruling challenge to trial court’s failure to permit
jurisdictional discovery in special appearance proceeding in part because the party
seeking such discovery never “obtained a ruling on its request for additional
discovery” and “[o]btaining a ruling, or at least a refusal to rule (supported by an
objection to the refusal to rule) is an elemental requirement for preservation of
                                            8
                                    III. Discussion

        EnerQuest argues that the trial court erred by denying its special appearance (1)

because Antero failed to meet its initial burden of pleading allegations sufficient to

permit the trial court to exercise personal jurisdiction—general or specific—over it;

(2) because there is no legally or factually sufficient evidence that EnerQuest is

“essentially at home” in Texas that would allow the exercise of general jurisdiction

over it; and (3) because there is no legally or factually sufficient evidence to support

the exercise of specific jurisdiction over it under a contract or tort theory. Although

EnerQuest presents and briefs these as three separate issues, our primary focus is on

whether the trial court has specific jurisdiction over EnerQuest.7 See Tex. R. App. P.

47.1.



error”). Accordingly, any error in the failure to permit jurisdictional discovery has not
been preserved for our review. See Tex. R. App. P. 33.1(a)(2); Mitchell v. Bank of Am.,
N.A., 156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiffs] failed
to obtain a ruling from the trial court on the motion for continuance and therefore,
failed to preserve error.”).
        7
         We focus our discussion in this regard because Antero did not expressly allege
in its pleadings, special-appearance response, oral argument at the special appearance
hearing, or appellate briefing that Texas courts have general jurisdiction over
EnerQuest. And, in any event, the record before us does not meet the “high bar”
required for general jurisdiction, Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex.
2016), as EnerQuest is not incorporated in Texas, does not have a principal place of
business in Texas, and does not maintain any offices in any state other than
Oklahoma. See Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S. Ct. 746, 754 (2014)
(holding courts may have general jurisdiction over a defendant only if the defendant’s
“affiliations with the [s]tate are so continuous and systematic as to render them
essentially at home in the forum [s]tate.” (citing Goodyear Dunlop Tires Operations, S.A. v.
                                             9
A. Personal Jurisdiction Law

      Texas courts 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 federal and state constitutional due-process guarantees.”

Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013) (quoting Moki

Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007)); see also Tex. Civ. Prac.

& Rem. Code Ann. § 17.042(1), (2) (providing that “a nonresident does business in

this state if the nonresident: (1) contracts by mail or otherwise with a Texas resident

and either party is to perform the contract in whole or in part in this state; (2)

commits a tort in whole or in part in this state”). The requirements of the Texas long-

arm statute are considered satisfied if the exercise of personal jurisdiction comports

with federal due process. Twister B.V. v. Newton Research Partners, LP, 364 S.W.3d 428,

434 (Tex. App.—Dallas 2012, no pet.).

      Personal jurisdiction over a nonresident defendant is consistent with due

process guarantees when the defendant has established minimum contacts with the

forum state, and the exercise of jurisdiction comports with “traditional notions of fair

play and substantial justice.” Moki Mac, 221 S.W.3d at 575 (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945)). Minimum contacts are

established when the nonresident defendant “purposefully avails itself of the privilege

Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011))). Accordingly, we need not
reach EnerQuest’s second issue regarding general jurisdiction.

                                           10
of conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1240 (1958);

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). The

defendant’s conduct and connection with the state must be such that it could

reasonably anticipate being sued in the forum. See Burger King Corp. v. Rudzewicz, 471

U.S. 462, 474–75, 105 S. Ct. 2174, 2183–84 (1985); Am. Type Culture Collection, Inc. v.

Coleman, 83 S.W.3d 801, 806 (Tex. 2002) (“The defendant’s activities, whether they

consist of direct acts within Texas or conduct outside Texas, must justify a conclusion

that the defendant could reasonably anticipate being called into a Texas court.”).

       A defendant’s contacts with a forum can give rise to either general or specific

jurisdiction, BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795–96 (Tex.

2002), and specific jurisdiction is established if the defendant’s alleged liability arises

from or relates to the defendant’s activity conducted within the forum. See Spir Star

AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010). A court may exercise specific

jurisdiction over a nonresident defendant when two requirements are met: (1) the

defendant’s contacts with the forum state are purposeful, and (2) the cause of action

arises from or relates to those contacts. Id.; Moki Mac, 221 S.W.3d at 576.

       Even if minimum contacts are present, a trial court may not exercise personal

jurisdiction over a nonresident defendant if it would offend traditional notions of fair

play and substantial justice. Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano

Cty., 480 U.S. 102, 113, 107 S. Ct. 1026, 1033 (1987). “Only in rare cases, however,
                                            11
will the exercise of jurisdiction not comport with fair play and substantial justice when

the nonresident defendant has purposefully established minimum contacts with the

forum state.” Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815

S.W.2d 223, 231 (Tex. 1991).

B. Special Appearance Burdens of Proof

       Procedurally, the parties in a special appearance challenging personal

jurisdiction bear shifting burdens of proof. Kelly v. Gen. Interior Constr., Inc., 301

S.W.3d 653, 658 (Tex. 2010). The plaintiff bears the initial burden of pleading

jurisdictional facts sufficient to bring a nonresident defendant within the provisions of

the Texas long-arm statute. Id. If the nonresident defendant challenges jurisdiction

through a special appearance, it then bears the burden of negating all bases of

personal jurisdiction alleged by the plaintiff. Id.; Moki Mac, 221 S.W.3d at 574. The

nonresident defendant “can negate jurisdiction on either a factual or legal basis.”

Kelly, 301 S.W.3d at 659. Specific jurisdiction can be negated on a legal basis if the

defendant can establish that even taking the plaintiff’s alleged facts as true, (1) “the

evidence is legally insufficient to establish jurisdiction”; (2) “the defendant’s contacts

with Texas fall short of purposeful availment”; (3) “the claims do not arise from the

contacts”; or (4) “traditional notions of fair play and substantial justice are offended

by the exercise of jurisdiction.” Id.




                                           12
C. Standard of Review

       When reviewing a trial court’s order denying a special appearance, we must

review the trial court’s factual findings for legal and factual sufficiency but review its

legal conclusions de novo because whether a court has personal jurisdiction over a

defendant is a question of law. BMC Software, 83 S.W.3d at 794. 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. Id. at 795. But when the appellate record includes both the reporter’s and

clerk’s records, these implied findings are not conclusive and may be challenged for

legal and factual sufficiency. Id. When jurisdictional facts are undisputed, it is a

question of law as to whether those facts establish jurisdiction; the reviewing court

“need not consider any implied findings of fact” and will consider only the legal

question of whether the undisputed facts establish Texas jurisdiction. Old Republic

Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018).

D. Jurisdictional Facts

       Antero presents the following factual allegations in support of the trial court’s

exercise of personal jurisdiction over EnerQuest:

   • EnerQuest is registered to do business in Texas and does business in Texas;

   • EnerQuest entered into a contract—the Formation Agreement—with a Texas
     company—BMA—to be performed in Texas;



                                             13
   • EnerQuest’s Formation Agreement with BMA was the “pathway” by which
     EnerQuest received and benefitted from Antero’s alleged trade secrets;

   • Based on the Formation Agreement, EnerQuest intended to acquire, and
     funded the acquisition of, confidential information from Texas over a period of
     years;

   • EnerQuest “reached out” to Texas to acquire and thereby misappropriate
     confidential information.

E. Application of the Law to the Facts

      1. No Jurisdiction Over EnerQuest Simply Because it is Registered to
      Do Business and Conducts Some Business in Texas

      Antero alleges personal jurisdiction over EnerQuest because EnerQuest is

registered to do business in Texas and conducts some business in Texas. In its

opening brief, EnerQuest acknowledged that it is registered to do business in Texas

and conducts business here.

      Notwithstanding that this argument goes to a general jurisdiction theory—a

theory not advanced by Antero—rather than a specific jurisdiction theory of personal

jurisdiction, see Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 418 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied) (recognizing that courts “consider registering to

do business in Texas and maintaining a registered agent in Texas in undertaking a

minimum contacts analysis” to resolve whether Texas courts can “constitutionally

exercise general jurisdiction”), the undisputed facts that EnerQuest is registered to do

business in Texas and conducts some business in Texas are not on their own enough

to establish personal jurisdiction when they have no connection to Antero’s causes of

                                          14
action. See id. (stating that “[a]lthough we consider registering to do business in Texas

and maintaining a registered agent in Texas in undertaking a minimum contacts

analysis,” such factors “are not dispositive”); Spir Star AG, 310 S.W.3d at 873; Moki

Mac, 221 S.W.3d at 576.

       Accordingly, we cannot rely on Antero’s first jurisdictional fact alone as

support for the trial court’s order overruling EnerQuest’s special appearance.

       2. No Jurisdiction Arising from Contracting with Texas Residents

       Antero asserts that if EnerQuest received or benefited from the alleged trade

secrets, “it will have done so through the [Formation Agreement] contract obligating

two Texas residents to provide EnerQuest with title reports and information about

properties for EnerQuest to evaluate.” The gravamen of this argument is that by

contracting with BMA, a Texas limited liability company, to form BMIII—with Bauer

and Ashburn as Texas residents who would be conducting BMIII’s business in Texas

and designating Texas as BMIII’s principal place of business—EnerQuest, as a part

owner of BMIII, is subject to personal jurisdiction in Texas.

       Texas’s long-arm statute provides, “[A] nonresident does business in this state

if the nonresident: contracts by mail or otherwise with a Texas resident and either party

is to perform the contract in whole or in part in this state.” Tex. Civ. Prac. & Rem. Code Ann.

§ 17.042(1) (emphasis added). EnerQuest has entered into a contract—the Formation

Agreement—with BMA, a Texas resident, so Antero has demonstrated the first part

of subsection one—that EnerQuest has contracted with a Texas resident.
                                              15
      However, “[m]erely contracting with a Texas resident does not satisfy the

minimum contacts requirement,” Blair Commc’ns, Inc. v. SES Survey Equip. Servs, Inc., 80

S.W.3d 723, 729 (Tex. App.—Houston [1st Dist.] 2002, no pet.), nor does the mere

fact that BMA may have incidentally performed its part of the contract in Texas. See

Max Protetch, Inc. v. Herrin, 340 S.W.3d 878, 886 (Tex. 2011) (stating that mere

communications made during performance of the contract generally are “insufficient

to subject a nonresident to the forum’s jurisdiction”); Peredo v. M. Holland Co., 310

S.W.3d 468, 474–75 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[A]

nonresident does not establish minimum contacts simply by contracting with a Texas

entity and engaging in numerous communications, by telephone or otherwise, with

people in Texas concerning the contract.”). The question is whether, based on

“[p]rior negotiations, contemplated future consequences, the terms of the contract,

and the parties’ actual course of dealing,” EnerQuest purposefully established

minimum contacts within Texas. TeleVentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900,

909 (Tex. App.—Austin 2000, pet. denied).

      Although BMA may have been working in Texas, the Formation Agreement is

subject to Delaware law, contains an Oklahoma forum selection clause, and created a

Delaware company for the express purpose of developing oil and gas business in

West Virginia, Pennsylvania, and Ohio. The facts in this case are similar to those in

Searcy, in which the supreme court found no specific jurisdiction when the

nonresident appeared to have “purposefully avoided” Texas through New York
                                          16
forum selection and choice of law clauses in the contract. 496 S.W.3d at 75 (noting

that “insertion of a clause designating a foreign forum suggests that no local availment

was intended”) (quoting Michiana Easy Livin’ Country, 168 S.W.3d at 792). Here, the

Formation Agreement likewise supports that EnerQuest “purposefully avoided”

Texas because the agreement contains an Oklahoma forum selection clause and a

Delaware choice of law clause.

      To the extent that Antero argues that BMA’s serving as BMIII’s manager and

maintaining a principal place of business in Texas establishes jurisdiction, such a fact

is not proper in our analysis of whether specific jurisdiction exists over EnerQuest

because it focuses on BMA’s and BMIII’s (and their principals’) relationships to

Texas, not EnerQuest’s. See Burger King, 471 U.S. at 475, 105 S. Ct. at 2184 (explaining

the unilateral activity of another party or a third person cannot amount to purposeful

availment by the specially appearing defendant); M&F Worldwide Corp. v. Pepsi-Cola

Metro. Bottling Co., Inc., 512 S.W.3d 878, 889 (Tex. 2017) (finding no specific

jurisdiction when no evidence suggested that the specially appearing, nonresident

defendants had any role or authority in selecting location where management

company or manager would perform under the settlement agreement contract and

nothing in the agreement required performance in Texas). But even if we could

consider BMA’s and BMIII’s contacts, the fact that BMA may have worked from

Texas appears entirely incidental to the Formation Agreement, which did not mandate

a location from where BMIII would be managed. See Magnolia Gas Co. v. Knight Equip.
                                          17
& Mfg. Corp., 994 S.W.2d 684, 692 (Tex. App.—San Antonio 1998, no pet.) (holding

no minimum contacts to support personal jurisdiction when “Texas contacts were

entirely incidental and immaterial to the purpose of the contract”), abrogated on other

grounds by BMC Software Belgium, N.V., 83 S.W.3d at 794 n.1. Thus, we decline to find

specific jurisdiction over EnerQuest because BMA happened to office in Texas,

especially in light of the express contractual agreement that disputes would be

governed by Delaware laws and litigated in Oklahoma and that the contract was

entered into for purposes of oil and gas development in Ohio, Pennsylvania, and

West Virginia, not Texas.8

      Therefore, the mere entering into the Formation Agreement is insufficient to

establish specific personal jurisdiction over EnerQuest.

      3. No Specific Jurisdiction for Allegedly Soliciting, Funding, and
      Acquiring Trade Secrets from Texas Residents

      Antero alleges that Texas has personal jurisdiction over EnerQuest because

EnerQuest committed a tort in Texas when it “reached out to Texas” to solicit, fund,

      8
        Antero also characterizes the Formation Agreement as a “pathway” for
EnerQuest to obtain Antero’s trade secrets that BMII already possessed. That is,
BMII had already improperly obtained Antero’s trade secrets, and the Formation
Agreement even refers to “title reports” that would be provided to EnerQuest as part
of the agreement to form BMIII. Again, however, such an allegation focuses on
BMII’s rather than EnerQuest’s Texas contacts, which is improper for resolving
EnerQuest’s special appearance. See Walden v. Fiore, 571 U.S. 277, 291, 134 S. Ct.
1115, 1126 (2014) (“The proper focus of the minimum contacts inquiry in intentional-
tort cases is the relationship among the defendant, the forum, and the litigation.”); see
also Burger King, 471 U.S. at 475, 105 S. Ct. at 2184; M&F Worldwide, 512 S.W.3d at
889.

                                           18
and acquire alleged trade secrets that were sent from Texas. See Tex. Civ. Prac. &

Rem. Code Ann. § 134A.002(3)(A). Antero points to an e-mail from Olson to Bauer

in which Olson requested that Bauer send him certain drill schedules and Bauer’s

response in which he stated that he did not have a digital copy of the schedules

because he kept them “on my person at all times, bc [sic] its [sic] one of my prize [sic]

possessions.” EnerQuest responds that: (1) the e-mail did not constitute a tort; (2)

any tort in the e-mail was not committed by EnerQuest; and (3) even if the e-mail

constituted a tort committed by EnerQuest, the tort was committed in Oklahoma and

there is no evidence to support that the e-mail was even received in Texas.

      Under the Texas Uniform Trade Secrets Act, misappropriation of a trade secret

may occur by the “acquisition of a trade secret of another by a person who knows or

has reason to know that the trade secret was acquired by improper means.” Id.

      As an initial matter, it is unclear how the e-mail from Olson “reaching out” and

requesting that Bauer send him the alleged trade secrets and the e-mail response from

Bauer support the notion that the tort of misappropriation of trade secrets by

acquisition was committed in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2).

There is nothing in our record to show that Olson sent an e-mail “to Texas” or that

Olson received the e-mail and acquired the alleged trade secrets in Texas. Indeed,

Olson stated in his affidavit that he received Bauer’s e-mail in Oklahoma. See Moncrief

Oil Intern., 332 S.W.3d at 153 (concluding personal jurisdiction existed over trade


                                           19
secret misappropriation claim when out-of-state defendants “agreed to attend Texas

meetings . . . [a]nd . . . accepted Moncrief’s alleged trade secrets at those meetings”).

       Moreover, we question the very premise of the contention that an e-mail can

be sent to a particular state. E-mails are not sent to a designated computer or

electronic device located at a particular place. E-mail accounts have no physical

address. They are sent into cyberspace, saved onto a server (or multiple servers), and

retrieved by the recipient wherever that person may happen to be at the given time,

whether in Texas, Tennessee, or Tibet. Arguably, to purposely direct an e-mail to a

particular state, a sender would be required to know, at the very least, where the

recipient’s server is located or where the recipient will be when he or she opens the e-

mail. The record here reveals no facts upon which we could conclude that any email

was “sent to Texas,” if indeed it would be theoretically possible to do so.

       The tort cases cited by Antero to support personal jurisdiction are factually

distinguishable. For example, Nawracaj v. Genesys Software Sys., Inc., 524 S.W.3d 746,

756 (Tex. App.—Houston [14th Dist.] 2017, no pet.), is a legal malpractice case in

which the court determined that personal jurisdiction existed over an out-of-state

attorney who, while not having stepped foot in a Texas courtroom, nevertheless had

been admitted to the Texas federal district court, conceded that he was subject to the

State Bar of Texas’s authority to discipline him, negotiated a contract with local

counsel and supervised their work, and performed the majority of the legal work on

the Texas case. Schexnayder v. Daniels, 187 S.W.3d 238, 246 (Tex. App.—Texarkana
                                            20
2006, pet. dism’d w.o.j.), is a medical malpractice case in which the court concluded

personal jurisdiction existed over an out-of-state doctor when he “was actively

practicing medicine in Texas by directing the actions of his hospital’s team while it

was in Texas.” And, Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154, 164

(Tex. App.—Fort Worth 2008, no pet.), is primarily a tortious interference case in

which our court held that the out-of-state defendant was subject to personal

jurisdiction because it had “deliberately induced its Texas customers to undertake

further activity in Texas, directed at a Texas business, in direct contravention of an

agreement between those residents and the Texas business.”

      These kinds of facts are not present here. This is not a legal malpractice,

medical malpractice, or tortious interference case. EnerQuest exercised no such

control over BMA, had no related Texas customers, and did not tortiously interfere

with a Texas business’s contract.9 See Moki Mac, 221 S.W.3d at 588 (holding no

specific jurisdiction in wrongful-death case when Texas resident died on a hiking trail

in Arizona because “the relationship between the operative facts of the litigation and

[the nonresident defendant’s] promotional activities in Texas [is] simply too

attenuated to satisfy specific jurisdiction’s due-process concerns”).


      9
       In its motions for rehearing, Antero complains that we fail to address
Texhoma, a Texas company from which Antero’s alleged trade secrets were allegedly
stolen. Again, the contacts of a third party such as Texhoma are not germane to
resolve EnerQuest’s special appearance. See Walden, 571 U.S. at 291, 134 S. Ct. at
1126 (explaining that “it is the defendant, not . . . third parties, who must create
contacts with the forum State”).
                                           21
       And although the physical location of the out-of-state defendant is not

“dispositive” to negate personal jurisdiction, Nawracaj, 524 S.W.3d at 755, we cannot

agree with Antero that the e-mail exchange constituted “reaching into Texas” to

acquire trade secrets and to purposefully avail itself of the benefits and protections of

Texas law. See Moncrief Oil Intern., 332 S.W.3d at 158 (concluding that personal

jurisdiction existed over a trade secret misappropriation claim when nonresident

defendants had attended two meetings in Texas with a Texas corporation, at which

the nonresident defendants accepted alleged trade secrets which had been created in

Texas).

       Therefore, we hold that EnerQuest’s contacts lack the substantial connection

to Texas and are too attenuated to the disputed acts allegedly committed in Texas to

establish personal jurisdiction over EnerQuest. See Am. Type Culture Collection, 83

S.W.3d at 806 (“A defendant is not subject to jurisdiction here if its Texas contacts are

. . . attenuated.”); RSM Prod. Corp. v. Glob. Petroleum Group, Ltd., 507 S.W.3d 383, 394

(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding no personal jurisdiction

over nonresident entity because to the extent it may have misappropriated trade

secrets by, inter alia, sending e-mails to Texas related to the trade secrets, “there are no

pleadings or evidence demonstrating that this act occurred, even in part, in Texas”).

       Accordingly, we sustain EnerQuest’s third issue.




                                            22
                                   IV. Conclusion

      Having concluded that EnerQuest lacked sufficient minimum contacts with

Texas to support the trial court’s exercise of personal jurisdiction over it, we reverse

the trial court’s order overruling EnerQuest’s special appearance and render judgment

dismissing EnerQuest for lack of personal jurisdiction.


                                                      /s/ Bonnie Sudderth
                                                      Bonnie Sudderth
                                                      Chief Justice

Delivered: April 11, 2019




                                          23
