                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00426-CV


PROFESSIONAL ASSOCIATION                                            APPELLANT
OF GOLF OFFICIALS

                                        V.

PHILLIPS CAMPBELL & PHILLIPS,                                       APPELLEES
L.L.P. AND PATRICK C.
CAMPBELL JR.


                                    ------------

          FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      Appellant Professional Association of Golf Officials (PAGO) appeals from

the trial court’s order granting a special appearance filed by Appellees Phillips

Campbell & Phillips, L.L.P. (Phillips LLP) and Patrick C. Campbell Jr. (Campbell)

and dismissing PAGO’s claims for lack of personal jurisdiction. We affirm.

      1
       See Tex. R. App. P. 47.4.
                                I. BACKGROUND

                            A. JURISDICTIONAL FACTS

      PAGO is a labor union representing golf tournament officials employed by

three professional golf-tour organizations: the PGA Tour, the Nationwide Tour,

and the Champions Tour (collectively, the Tour). 2      PAGO was organized by

Phillips LLP in Pennsylvania and had its principal place of business in

Pennsylvania at Phillips LLP’s office.       PAGO’s corporate income tax returns

through 2010 listed Pennsylvania as its tax residence, and PAGO used Phillips

LLP’s Pennsylvania office and support staff “for its administrative and support

needs, such as answering phones, storing records, bookkeeping, and billing.”

Phillips LLP is a Pennsylvania law firm with one office located in Pennsylvania.

None of its attorneys are licensed to practice law in Texas, and it does not

market itself to Texas residents.

      In 1992, PAGO entered into an agreement with Phillips LLP under which

PAGO would pay Phillips LLP an annual fee plus a percentage of each member’s

per annum compensation in exchange for its legal representation of PAGO.

PAGO is governed by a board of directors made up of six directors and a

president.   Only the president may “supervise, conduct[,] and control all the

business and affairs of [PAGO] and its officers.”       Members of PAGO were

represented exclusively by PAGO “regarding wages, hours[,] and terms and


      2
       The Tour’s headquarters is located in Ponte Vedra, Florida.

                                         2
conditions of employment” and gave PAGO complete authority to act on their

behalf. PAGO’s primary counsel at Phillips LLP for the operative time period was

Campbell.

      Phillips LLP and Campbell negotiated collective-bargaining agreements

with the tour on PAGO’s behalf. During Phillips LLP’s representation, PAGO

occasionally would conduct board meetings telephonically where board members

would call in and discuss business matters with Campbell. One board member,

Rich Pierson, was a Texas resident and attended these meetings by phone from

his home in Texas. Campbell would also communicate with the board members

by mail and email.

      In 2007, Phillips LLP and PAGO signed another retainer agreement stating

that Phillips LLP would serve as PAGO’s counsel from January 1, 2007 through

December 31, 2011, which would automatically extend through December 31,

2015 unless written intent to terminate was given at least 180 days before

December 31, 2011. 3     At some point after this agreement, PAGO became

concerned that Phillips LLP was failing to negotiate favorable terms in its

collective-bargaining agreement with the Tour: “Specifically, Plaintiff lost salary

and benefits, automobile and automobile insurance, first class travel, and a

number of other items. To make matters worse, [Phillips LLP and Campbell]



      3
       The retainer agreement was signed by Dillard Pruitt, PAGO’s president at
the time.

                                        3
advised [PAGO] not to challenge the Tour by and through the grievance process

in an effort to keep a peaceful relationship.”

      The board of directors held its annual meeting in Texas on December 13

and 14, 2010, and discussed the loss of the automobile and automobile-

insurance benefit. The location for the meeting was chosen by PAGO’s board of

directors. Campbell attended the meeting. At that time, PAGO’s president was

Mark Dusbabek. The relationship between PAGO and Phillips LLP continued to

deteriorate, and PAGO decided to fire Phillips LLP. In late May 2011, Dusbabek,

who was in Texas officiating the HP Byron Nelson Championship, called

Campbell in Pennsylvania from his cell phone and verbally terminated the

retainer agreement. On June 1, 2011, PAGO moved its headquarters to Texas.

The next day, Campbell sent Dusbabek an email expressing “disappoint[ment]”

with PAGO’s decision and asking how to resolve their disagreements. 4 On June

6, 2011, Dusbabek sent Campbell a letter formally terminating the retainer

agreement and requesting that PAGO’s files be forwarded to PAGO’s new

attorney located in Texas. 5 Dusbabek also informed Campbell that Phillips LLP

“has been paid handsomely for the services provided and we do not believe any

compensation is due and owing.” On November 9, 2011, PAGO paid Campbell


      4
      Campbell sent a copy of the email to twenty-one PAGO members, some
of whom were Texas residents.
      5
         It appears that Phillips LLP never forwarded PAGO’s files. Indeed, this
failure is the basis of one of PAGO’s claims against Phillips LLP and Campbell.

                                          4
$37,922.00 “in complete satisfaction of the amounts claimed to be due and

owing.” On the check, PAGO’s treasurer at the time, John Lillvis, noted PAGO’s

address as being located in Orange City, Florida. 6

                              B. PROCEDURAL FACTS

      Phillips LLP filed a writ of summons in Pennsylvania state court on

February 3, 2012, seeking to collect the amounts it believed PAGO still owed

under the retainer agreement. 7 PAGO filed a petition in the trial court on March

1, 2012, raising claims against Phillips LLP and Campbell for legal malpractice,

breach of fiduciary duty, and breach of contract.        PAGO also requested a

declaratory judgment that it properly terminated the retainer agreement and that

it had fully paid Phillips LLP.      Phillips LLP and Campbell filed a special

appearance arguing that the trial court did not have personal jurisdiction over

them. See Tex. R. Civ. P. 120a(1). PAGO amended its petition and alleged

twenty-eight “venue” facts in an attempt to show personal jurisdiction over

      6
        Although the trial court struck the portion of Lillvis’s affidavit that
discussed the November 2011 payment to Campbell, it does not appear that the
trial court struck the exhibit attached to Lillvis’s affidavit, which contained the
check and Lillvis’s cover letter to Campbell.
      7
        A writ of summons is a procedure by which a civil action is commenced in
Pennsylvania state court. Pa. R. Civ. P. 1007. PAGO argues the writ of
summons is not relevant to our personal-jurisdiction inquiry. While it is true that a
writ of summons under Pennsylvania law does not trigger the federal first-to-file
rule regarding venue, the writ of summons could be relevant in determining
Phillips LLP’s and Campbell’s minimum contacts with Texas. See Freshtec Food
Processing, Equip. Int’l, LLC v. Easy Tray, LLC, No. Civ. A. 05-142J, 2005 WL
3116030, at *6 n.6 (W.D. Penn. Nov. 22, 2005) (recognizing writ of summons will
not trigger first-to-file rule to preclude transfer to more appropriate venue).

                                         5
Phillips LLP and Campbell. The trial court held a non-evidentiary hearing and

granted the special appearance, dismissing PAGO’s claims for lack of personal

jurisdiction. The trial court then entered the following “findings of fact” supporting

its conclusion of law that personal jurisdiction over Phillips LLP and Campbell

was not present:

      1.    Defendants are not, and have never been, residents of Texas
      or domiciled in Texas.

      2.     Defendants are not required to maintain a registered agent for
      service in Texas and [have] not registered with the Texas Secretary
      of State’s office.

      3.   Defendants do not engage in business in Texas within the
      meaning of [section 17.042] . . . of the long-arm statute. . . .

      4.    Defendants do not maintain a place of business in Texas and
      do not maintain offices in Texas.

      5.     Defendants have no employees, servants, or agents within the
      state of Texas.

      6.     Defendants do not own any real or personal property in Texas.

      7.   Defendants do not maintain any bank accounts, telephone
      numbers, or post office boxes in Texas.

      8.     Plaintiff’s causes of action do not arise out of, nor relate to,
      any purposeful conduct of either of the defendants directed toward
      the state of Texas.

      9.    There is no substantial connection between the defendants’
      contacts with Texas and the operative facts of this litigation.

      10. The defendants’ contacts with Texas were not purposeful;
      rather, they were random, isolated, or fortuitous.

      11. Neither defendant has had continuous and systematic
      contacts with Texas.

                                          6
      12. The exercise of jurisdiction over the defendants would not
      comport with traditional notions of fair play and substantial justice.

      PAGO now appeals the final dismissal of its claims for lack of personal

jurisdiction. See Tex. R. App. P. 26.1(a). But see Tex. Civ. Prac. & Rem. Code

Ann. § 51.014(a)(7) (West Supp. 2013) (allowing accelerated appeal from

interlocutory order granting or denying special appearance).       In five issues,

PAGO argues the trial court erred in granting Phillips LLP and Campbell’s special

appearance because (1) they failed to negate all factual bases PAGO asserted

conferred personal jurisdiction, (2) they had the required minimum contacts with

Texas, (3) they purposefully availed themselves of the benefits of conducting

business in Texas, (4) their contacts were continuous and systematic, and (5) the

exercise of personal jurisdiction would not offend the traditional notions of fair

play and substantial justice. 8




      8
        In essence, PAGO attempts to argue that the trial court’s legal conclusion
that personal jurisdiction was not present was supported by insufficient evidence.
Even though PAGO asserts a de-novo standard applies to every issue, we are
bound to review the factual findings that support the ultimate conclusion of law
for evidentiary sufficiency. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d
789, 794 (Tex. 2002). Because we have recast PAGO’s issues to comport with
these review restrictions, we will not specifically address the issues as numbered
in PAGO’s appellate briefs. But we will review each element of a minimum-
contacts determination and, if necessary, address fair play and substantial
justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158
(1945).

                                        7
II. STANDARDS AND BURDENS IN REVIEW OF PERSONAL JURISDICTION

                               A. APPELLATE PRISM

      The standards of review and the burdens of proof applicable to our review

of a trial court’s ruling on a special appearance are well established. Whether a

trial court has personal jurisdiction is a question of law. 9 BMC Software, 83

S.W.3d at 794. A plaintiff has the initial burden to plead sufficient allegations to

bring a nonresident within the provisions of the Texas long-arm statute. Kelly v.

Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); Retamco

Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). Once

a plaintiff sufficiently pleads such jurisdictional allegations, the burden shifts to

the defendant to negate the bases of personal jurisdiction asserted by the

plaintiff. 10 Kelly, 301 S.W.3d at 658; Moki Mac River Expeditions v. Drugg, 221

S.W.3d 569, 574 (Tex. 2007).




      9
        Even if PAGO were correct in its assertion that the trial court’s findings of
fact three, eight, nine, ten, eleven, and twelve are nothing more than conclusions
of law, we would still review the supporting factual findings, whether express or
implied, for sufficiency and then review the court’s legal conclusions drawn from
the facts to determine their correctness as a matter of law. BMC Software, 83
S.W.3d at 794.
      10
         PAGO argues that because Phillips LLP and Campbell failed to refute
each personal-jurisdiction fact raised in PAGO’s petition, the trial court was
required to conclude personal jurisdiction was present. However, many of
PAGO’s personal-jurisdiction allegations are, themselves, conclusions and not
factual assertions. Further, Phillips LLP and Campbell ably point out how each
allegation was refuted.

                                         8
      In determining whether the nonresident defendant sufficiently negated the

pleaded bases for personal jurisdiction, the trial court frequently must resolve

questions of fact. BMC Software, 83 S.W.3d at 794. While we review de novo

the trial court’s legal conclusion that personal jurisdiction does not exist, any

supporting findings of fact are reviewed for factual and legal sufficiency. Id. If

the trial court’s findings are supported by sufficient evidence, we must decide as

a matter of law whether those facts negate all bases for personal jurisdiction. Id.

      In reviewing the legal sufficiency of the evidence to support a fact finding,

we consider evidence favorable to the finding if a reasonable fact-finder could

and disregard evidence contrary to the finding unless a reasonable fact-finder

could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.

2007). We are mindful that anything more than a scintilla of evidence is legally

sufficient to support the finding.   Cont’l Coffee Prods. Co. v. Cazarez, 937

S.W.2d 444, 450 (Tex. 1996). With a factual-sufficiency review, we may only

“unfind” a factual finding if we determine that the credible evidence supporting

the finding is too weak or that the finding is against the great weight and

preponderance of the credible evidence contrary to the finding. 11 Tex. Nat’l Bank

v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821,

823 (Tex. 1965).

      11
        This standard applies because Phillips LLP and Campbell had the
burden to disprove PAGO’s pleaded jurisdictional facts. See Gooch v. Am. Sling
Co., 902 S.W.2d 181, 184 (Tex. App.—Fort Worth 1995, no writ); W. Wendell
Hall, Hall’s Standards of Review in Texas, 42 St. Mary’s L.J. 3, 41–42 (2010).

                                         9
                       B. LONG-ARM STATUTE AND DUE PROCESS

       Of course, a special appearance challenges the trial court’s personal

jurisdiction over a defendant.           Texas courts may not exercise personal

jurisdiction   over    a   nonresident    defendant   unless      federal   due    process

requirements and the Texas long-arm statute are satisfied. Tex. Civ. Prac. &

Rem. Code Ann. §§ 17.041–.042 (West 2008); Helicopteros Nacionales de

Colom., S.A. v. Hall, 466 U.S. 408, 412–13 & n.7, 104 S. Ct. 1868, 1871 & n.7

(1984). The Texas long-arm statute and the requirements of due process are

coextensive; thus, the long-arm statute is satisfied if the exercise of personal

jurisdiction comports with federal due process.            See Guardian Royal Exch.

Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.

1991).   Federal due process is satisfied if (1) the nonresident defendant has

“minimum contacts” with Texas and (2) the exercise of personal jurisdiction over

the nonresident defendant does not offend “traditional notions of fair play and

substantial justice.” Int’l Shoe, 326 U.S. at 316, 66 S. Ct. at 158.

                                 1. Minimum Contacts

       Minimum        contacts   are   sufficient   when   a     nonresident      defendant

“purposefully avails itself of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla,

357 U.S. 235, 253, 78 S. Ct. 1228, 1240 (1958).                In determining purposeful

availment, we consider: (1) the defendant’s own actions but not the unilateral

activity of another party, (2) whether the defendant’s actions were purposeful

                                            10
rather than “random, isolated, or fortuitous,” and (3) whether the defendant

sought “some benefit, advantage, or profit by ‘availing’ itself” of the privilege of

doing business in Texas.     Michiana Easy Livin’ Country, Inc. v. Holten, 168

S.W.3d 777, 785 (Tex. 2005).         The nonresident defendant’s contacts are

considered as a whole and not in isolation, focusing on the quality and not the

quantity of the contacts.   Retamco Operating, 278 S.W.3d at 339; Guardian

Royal, 815 S.W.2d at 230 n.11.

      A defendant’s contacts may give rise to two types of personal jurisdiction:

specific and general jurisdiction. When specific jurisdiction is asserted, we focus

on the relationship between the defendant, the forum, and the litigation. Moki

Mac, 221 S.W.3d at 575–76. In short, the asserted cause of action must “arise

from or relate to” the nonresident defendant’s contacts with the forum. Guardian

Royal, 815 S.W.2d at 228. General jurisdiction, however, is a more demanding

test to meet than specific jurisdiction.      General jurisdiction is not dispute

dependent but requires continuous and systematic contacts. Helicopteros, 466

U.S. at 414–16, 104 S. Ct. at 1872–73.

                      2. Fair Play and Substantial Justice

      If minimum contacts are present, whether general or specific, the

nonresident defendant then bears the burden to establish that the exercise of

personal jurisdiction would offend traditional notions of fair play and substantial

justice. Knight Corp. v. Knight, 367 S.W.3d 715, 726 (Tex. App.—Houston [14th

Dist.] 2012, orig. proceeding). When the nonresident defendant has purposefully

                                         11
established minimum contacts with the forum state, it will be rare that the

exercise of jurisdiction over the nonresident defendant would not comport with

fair play and substantial justice. Guardian Royal, 815 S.W.2d at 231.

                                III. APPLICATION

                             A. CONSIDERED EVIDENCE

      We first must clarify what evidence should be considered in our review of

the personal-jurisdiction determination. Again, we are asked to review the legal

and factual sufficiency of the evidence to support the trial court’s findings of fact.

See BMC Software, 83 S.W.3d at 794. In a legal-sufficiency review, we consider

only the evidence and inferences that tend to support the finding and disregard

all evidence and inferences to the contrary. Catalina v. Blasdel, 881 S.W.2d 295,

297 (Tex. 1994). In a factual-sufficiency review, we consider all the evidence in

the record to determine if the finding is so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones,

917 S.W.2d 770, 772 (Tex. 1996); Fish v. Tandy Corp., 948 S.W.2d 886, 892

(Tex. App.—Fort Worth 1997, writ denied).

      The parties filed multiple affidavits in support of their jurisdictional

arguments.    Before the trial court’s hearing on Phillips LLP and Campbell’s

special appearance, which we have already stated was non-evidentiary, the trial

court struck multiple portions of PAGO’s, Phillips LLP’s, and Campbell’s proffered

affidavits. No one attacks the propriety of these rulings on appeal. However,

PAGO, Phillips LLP, and Campbell rely on many of these stricken facts on

                                         12
appeal in arguing their respective positions regarding the exercise of personal

jurisdiction over Phillips LLP and Campbell. Evidence is not conclusive unless it

was admitted into evidence and was not rebutted. Transport Ins. Co. v. Faircloth,

898 S.W.2d 269, 275 (Tex. 1995). As such, we cannot reverse a fact finding and

render a different judgment based on excluded evidence. Id. Thus, we will not

consider the evidence excluded by the trial court in our sufficiency review of

personal jurisdiction over Phillips LLP and Campbell.

                              B. MINIMUM CONTACTS

      Considering Phillips LLP’s and Campbell’s contacts with Texas as a whole,

we conclude that the evidence is legally and factually sufficient to support the trial

court’s implied findings of fact regarding the lack of minimum contacts. In short,

Phillips and Campbell did not purposefully avail themselves of the benefits of

conducting business in Texas such that they would invoke the benefits and

protections of Texas law.

                             1. General Jurisdiction

      In determining general jurisdiction, we consider Phillips LLP’s and

Campbell’s continuous and systematic contacts with Texas. See PHC-Minden,

L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 169 (Tex. 2007). Phillips LLP

organized PAGO under the laws of Pennsylvania. Indeed, PAGO consistently

listed Pennsylvania—specifically Phillips LLP’s office—as its corporate location

on its corporate tax returns. Phillips LLP is a Pennsylvania law firm with no

offices in Texas, and Campbell is licensed to practice law in Pennsylvania only.

                                         13
Phillips LLP has never “represented any Texas residents in litigation or

transactions in Texas.” There is no evidence Phillips LLP or Campbell advertises

in Texas or markets its services in Texas. 12            Although Campbell attended

PAGO’s December 2010 annual meeting, PAGO’s board of directors unilaterally

selected the venue as provided in its constitution and by-laws. Rich Pierson, a

PAGO board member and a Texas resident, attended “numerous” PAGO board

meetings by telephone from his home in Texas. Pierson asserts Phillips LLP and

Campbell “initiated” these calls, presumably from their Pennsylvania office.

Campbell sent emails and letters regarding PAGO business to several Texas

residents: Pierson and three PAGO members. 13 Further, Dusbabek, who does

not appear to be a Texas resident, fired Phillips LLP and Campbell by cell phone

while Dusbabek was in Texas. But these contacts—which comprise a miniscule

portion of Phillips LLP’s and Campbell’s actions on behalf of PAGO during their

almost twenty-year business relationship—do not show the “demanding minimum

contacts” that general jurisdiction requires. BMC Software, 83 S.W.3d at 797–

      12
         Although PAGO attempted to introduce a screen shot of Campbell’s
profile on Phillips LLP’s web site in which he was touted as “nationally
recognized,” the trial court struck the exhibit. Further, PAGO specifically states in
its reply brief that it does not challenge the trial court’s findings of fact that Phillips
LLP and Campbell are not Texas residents and do not maintain a place of
business in Texas. Therefore, these findings are conclusively established on
appeal. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445
(Tex. 1997).
      13
       The record does not reflect how many total members PAGO has;
however, appellate counsel for PAGO indicated during oral argument that PAGO
has twenty-seven members.

                                            14
98; CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996); see, e.g., Michiana, 168

S.W.3d at 786–87; Waterman S.S. Corp. v. Ruiz, 355 S.W.3d 387, 412–15 (Tex.

App.—Houston [1st Dist.] 2011, pet. denied); Triple SSS Aviation, Ltd. v.

Adkison, No. 12-07-00328-CV, 2008 WL 142640, at *3 (Tex. App.—Tyler Jan.

16, 2008, no pet.) (mem. op.); Credit Commercial de Fr., S.A. v. Morales, 195

S.W.3d 209, 220–21 (Tex. App.—San Antonio 2006, pet. denied). See generally

PHC-Minden, 235 S.W.3d at 168 (surveying law requiring extensive contacts for

general jurisdiction and recognizing general jurisdiction typically requires “the

defendant to have an office in the forum state”). The evidence was legally and

factually sufficient to support the trial court’s conclusion that general jurisdiction

over Phillips LLP and Campbell was not satisfied.

                             2. Specific Jurisdiction

      Specific jurisdiction, while less demanding than general jurisdiction, still

requires a substantial connection between Phillips LLP’s and Campbell’s

contacts with Texas and the operative facts of the underlying litigation. See Moki

Mac, 221 S.W.3d at 576, 585. Thus, our focus is on the incidents made the

basis of PAGO’s suit and not on where Campbell or Phillips LLP directed a tort or

where the effects of tortious conduct will be felt. Moki Mac, 221 S.W.3d at 585;

Michiana, 168 S.W.3d at 790–92; BMC Software, 83 S.W.3d at 796.

      PAGO raised claims for legal malpractice, breach of fiduciary duty, and

breach of contract against Phillips LLP and Campbell.            Phillips LLP’s and

Campbell’s contacts with Texas regarding the majority of these claims were

                                         15
occasional multi-party conference calls in which some participants were located

in Texas. Campbell attended an annual board meeting in Texas, and Dusbabek

fired Phillips LLP and Campbell by phone while Dusbabek was in Texas.

PAGO’s      claims   against   Phillips   LLP   and   Campbell   arose   from   their

representation of PAGO after the 2007 retainer agreement was signed. PAGO

alleged that Phillips LLP and Campbell gave “faulty advice” to PAGO while

negotiating a collective-bargaining agreement with the Tour and after the

agreement was entered. PAGO contended that this faulty advice caused PAGO

to lose “over and over again at the bargaining table and in its interaction with the

Tour.”     After PAGO fired Phillips LLP and Campbell and, presumably, after

PAGO moved its headquarters to Texas, PAGO alleged that Philips LLP and

Campbell “demanded well in excess of $100,000.00 for amounts due and owing

for 2012.” Similarly, PAGO asserted that Phillips LLP and Campbell breached

their fiduciary duty owed to PAGO by continually refusing “to return and provide

[PAGO’s] files despite housing all of its files at [Phillips LLP and Campbell’s]

office.”

         Although some of the advice PAGO claims was deficient necessarily

occurred during phone calls that Pierson, a Texas resident, participated in and

during the 2010 annual board meeting in Texas, these contacts were a small

portion of the legal advice Phillips LLP and Campbell provided PAGO, a

Pennsylvania organization, from 2007 until PAGO fired Phillips LLP and

Campbell in May 2011. Further, Phillips LLP filed its writ of summons demanding

                                          16
payment from PAGO in Pennsylvania. The contacts relating to PAGO’s claims

against Phillips LLP and Campbell are too inconsequential in light of the parties’

ongoing relationship to support a claim that Phillips LLP and Campbell

purposefully directed their business activities regarding PAGO to Texas. See,

e.g., IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597–98 (Tex. 2007); Michiana,

168 S.W.3d at 781, 791–92; Knight, 367 S.W.3d at 726–27; cf. Horizon

Shipbuilding, Inc. v. BLyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex. App.—

Houston [14th Dist.] 2010, no pet.) (finding specific jurisdiction over nonresident

defendant    where    fraud   claim   was    based   on   defendant’s   telephonic

representations that were made to Texas residents on two specific dates and on

presence at two meetings in Texas because contacts were substantial and

because the misrepresentations that formed the basis of the claim were made

during the calls and meetings); Fish, 948 S.W.2d at 895 (finding specific

jurisdiction over defendant, a resident of Russia, where defendant extensively

negotiated with Texas corporation through phone, fax, mail, and defendant’s

personal visits to Texas).

      Likewise, PAGO’s claims directed to Phillips LLP and Campbell’s actions

demanding payment and failing to turn over PAGO’s files, which occurred after

PAGO moved its headquarters to Texas, do not rely on facts sufficient to confer

specific jurisdiction over Phillips LLP or Campbell in a Texas state court. See,

e.g., Abilene Diagnostic Clinic, PLLC v. Paley, Rothman, Goldstein, Rosenberg,

Eig & Cooper, Chartered, 364 S.W.3d 359, 364–66 (Tex. App.—Eastland 2012,

                                        17
no pet.); Ahrens & DeAngeli, P.L.L.C. v. Flinn, 318 S.W.3d 474, 484–85 (Tex.

App.—Dallas 2010, pet. denied).         Because our personal-jurisdiction focus

regarding a legal-services claim must be on where the attorneys performed the

legal work at issue, Phillips LLP and Campbell’s alleged tortious conduct in failing

to surrender PAGO’s files arose in Pennsylvania. See Abilene Diagnostic, 364

S.W.3d at 365–66. Phillips LLP and Campbell’s legal judgments and actions

were taken in Pennsylvania. See Markette v. X-Ray X-Press Corp., 240 S.W.3d

464, 468–69 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (op. on reh’g).

Torts allegedly directed to a Texas organization cannot form the basis for

exercising specific jurisdiction. Proskauer Rose LLP v. Pelican Trading, Inc., No.

14-08-00283-CV, 2009 WL 242993, at *2–4 (Tex. App.—Houston [14th Dist.]

Feb. 3, 2009, no pet.) (mem. op.).       The evidence was legally and factually

sufficient to support the trial court’s conclusion that specific jurisdiction was not

satisfied.

       Even assuming the trial court found credible all the facts submitted by

PAGO, the assertion of personal jurisdiction over Phillips LLP or Campbell is

improper as a matter of law. PAGO labels these claims as “post-termination bad

acts,” which it argues should be considered in light of PAGO’s new status as a

Texas organization. The existence of an attorney-client relationship between an

out-of-state attorney and an organization in Texas, without other sufficient

contacts with Texas, does not confer personal jurisdiction over the non-resident

attorney in Texas.     Ahrens & DeAngeli, 318 S.W.3d at 484–85; Klenk v.

                                         18
Bustamante, 993 S.W.2d 677, 682 (Tex. App.—San Antonio 1998, no pet.),

overruled on other grounds by BMC Software, 83 S.W.3d at 794.

                    C. FAIR PLAY AND SUBSTANTIAL JUSTICE

      Because we have concluded that sufficient minimum contacts were not

present under either a general- or specific-jurisdiction inquiry, we need not

address whether the exercise of personal jurisdiction would offend traditional

notions of fair play and substantial justice. See, e.g., Wilson v. Belin, 20 F.3d

644, 650 n.7 (5th Cir.), cert. denied, 513 U.S. 930 (1994); Grand Aerie Fraternal

Order of Eagles v. Haygood, 402 S.W.3d 766, 782 (Tex. App.—Eastland 2013,

no pet.) (op. on reh’g). See generally Tex. R. App. P. 47.1.

                               IV. CONCLUSION

      After considering Phillips LLP’s and Campbell’s contacts with Texas as a

whole and under the appropriate sufficiency standards of review, we conclude

that they did not purposefully avail themselves of the privilege of conducting

activities within Texas.   Phillips LLP’s and Campbell’s actions were random,

isolated, and fortuitous and they did not seek a benefit, advantage, or profit by

availing themselves of the privilege of doing business in Texas. Therefore, they

did not have sufficient minimum contacts with Texas to satisfy federal due

process, which is coextensive with the Texas long-arm statute. We overrule

PAGO’s issues and affirm the trial court’s judgment.




                                        19
                                      LEE GABRIEL
                                      JUSTICE

PANEL: MCCOY and GABRIEL, JJ; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: December 27, 2013




                                 20
