                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-14-00364-CV
                             _________________

 EVERGREEN MEDIA HOLDINGS, LLC AND TONY DEROSA-GRUND,
                      Appellants

                                       V.

             FILMENGINE ENTERTAINMENT, LLC, Appellee
________________________________________________________________________

                   On Appeal from the 284th District Court
                        Montgomery County, Texas
                      Trial Cause No. 14-02-01508-CV
________________________________________________________________________

                         MEMORANDUM OPINION

      In this appeal, the appellants, Evergreen Media Holdings, LLC and Tony

DeRosa-Grund (collectively “Evergreen) contend the trial court erred by granting a

special appearance filed by the appellee, FilmEngine Entertainment, LLC.

(“FilmEngine”). Evergreen raises two issues on appeal: (1) whether the trial court

abused its discretion in denying Evergreen’s motion for continuance to conduct




                                        1
jurisdictional discovery; and (2) whether the trial court erred by granting

FilmEngine’s special appearance. We affirm.

                                 I. Background

      Evergreen is a Texas limited liability company, and Tony Derosa-Grund is

its executive chairman. FilmEngine is a Delaware company licensed to do business

in California. Anthony Rhulen is its chief executive officer. In July 2013,

Evergreen entered into a contract with FilmEngine regarding two film projects. On

February 7, 2014, Evergreen sued FilmEngine for breach of contract, breach of an

implied covenant of good faith and fair dealing, and for declaratory judgment.

Evergreen alleged that it entered into agreements with FilmEngine in connection

with two movie productions wherein Evergreen would provide script-writing

services to FilmEngine. Evergreen further alleged that it performed under the

agreements, but FilmEngine failed to pay Evergreen for the writing services and

thus materially breached its agreements with Evergreen.

      On March 21, 2014, FilmEngine filed a special appearance and asked the

trial court to dismiss the lawsuit for lack of personal jurisdiction because

FilmEngine had no purposeful contacts with the State of Texas. Evergreen filed its

response on May 8, 2014. On August 22, 2014, the trial court granted

FilmEngine’s special appearance and dismissed the case. Evergreen appealed. See

                                        2
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp. 2015) (providing

for interlocutory appeal of grants or denials of a special appearance of a

defendant).

                            II. Motion for Continuance

      In its first issue, Evergreen contends the trial court abused its discretion in

denying its request for a continuance to allow it to conduct jurisdictional discovery

before the trial court ruled on FilmEngine’s special appearance. An appellate court

will not disturb the trial court’s ruling on a motion to continue a special appearance

hearing to obtain discovery absent a showing of a clear abuse of discretion. BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002); Barron v.

Vanier, 190 S.W.3d 841, 847 (Tex. App.—Fort Worth 2006, no pet.) (op. on

reh’g).

      Texas Rule of Civil Procedure 120a(3) governs jurisdictional discovery. The

rule provides that “[t]he court shall determine the special appearance on the basis

of the pleadings, any stipulations made by and between the parties, such affidavits

and attachments as may be filed by the parties, the results of discovery processes,

and any oral testimony.” Tex. R. Civ. P. 120a(3). Rule 120a(3) further states that if

it should appear from reasons stated in the opposing party’s affidavits that he

cannot “present by affidavit facts essential to justify his opposition, the court may

                                          3
order a continuance to permit affidavits to be obtained or depositions to be taken or

discovery to be had or may make such other order as is just.” Id. In deciding

whether a trial court abused its discretion by denying a motion for continuance

seeking additional time to conduct discovery, the Texas Supreme Court has

considered the following non-exclusive factors: (1) the length of time the case has

been on file; (2) the materiality and purpose of the discovery sought; and (3)

whether the party seeking the continuance has exercised due diligence to obtain the

discovery sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161

(Tex. 2004) (considering these factors in the summary judgment context); Barron,

190 S.W.3d at 847 (considering these factors in the special appearance context).

      Evergreen filed its lawsuit on February 7, 2014. FilmEngine filed its special

appearance on March 21, 2014. According to the parties’ appellate briefing,

FilmEngine’s special appearance was originally set for submission on April 30,

2014. Evergreen filed its response to FilmEngine’s special appearance on May 8,

2014. The trial court issued its ruling on FilmEngine’s special appearance on

August 22, 2014. Evergreen argues that the length-of-time factor weighs in its

favor because it had less than two months to conduct discovery before it was

required to file a response. FilmEngine responds that Evergreen actually had over

five months to conduct discovery because the trial court did not grant the special

                                         4
appearance until August 22, 2014. FilmEngine contends this was sufficient time

for Evergreen to conduct jurisdictional discovery.

      In its original petition, Evergreen alleged that the court had personal

jurisdiction over FilmEngine “because this lawsuit arises from, was connected with

an act or transaction, and relates to the purposeful acts of the non-resident

Defendant in Texas, and those purposeful acts directed towards Texas.” Thus,

Evergreen alleged only specific jurisdiction against FilmEngine. See Searcy v.

Parex Res., Inc., Nos. 14-0293, 14-0295, 2016 WL 3418248, at *5, 9 (Tex. June

17, 2016) (internal citations and quotations omitted) (explaining that general

jurisdiction arises when the defendant’s contacts with the forum state are so

continuous and systematic as render the defendant essentially at home in the forum

state, whereas specific jurisdiction exists when the plaintiff’s claims arise out of or

are related to the defendant’s contact with the forum state). However, in

Evergreen’s motion for continuance, it asked the court for a continuance to conduct

additional discovery “evidencing FilmEngine’s general contacts with Texas.”

Evergreen explained that it would seek discovery of evidence that FilmEngine

“purposefully markets their movies to Texas residents, advertises in Texas, sells

their movies to Texas residents, and otherwise engages in significant business with

Texas residents.”

                                          5
      Evergreen did not allege in its motion for continuance that it had exercised

due diligence in conducting discovery. There is no evidence in the appellate record

that Evergreen attempted to engage in discovery related to the special appearance,

and Evergreen admitted in its motion for continuance that it had not conducted any

jurisdictional discovery.

      Evergreen relies on Barron v. Vanier to support its position that it was

entitled to a continuance. In Barron, the appellate court held that the trial court

abused its discretion in denying the plaintiff’s motion for continuance of a special

appearance hearing to permit him to conduct further discovery on the issue of

personal jurisdiction where the special appearance hearing was held two months

after the filing of the special appearance, and the plaintiff sought information

which, if it existed and was discovered, could support his allegations of specific

personal jurisdiction over the defendants. 190 S.W.3d at 847-51.

      This case is distinguishable from Barron. In Barron, all three factors

weighed in favor of granting the motion for continuance, while, here, the

application of the factors is not so clearly defined. See id. The first factor does tend

to support a continuance. Evergreen had less than two months to conduct discovery

before its response to the special appearance was due. See id. at 847-48.



                                           6
      The second factor weighs against Evergreen’s motion for a continuance. In

Barron, the plaintiff alleged personal jurisdiction over defendants based on specific

jurisdiction and then sought discovery of facts relating to both specific and general

jurisdiction. Id. at 849. FilmEngine contends Evergreen only sought discovery on

matters related to general jurisdiction. Evergreen responds that it sought discovery

of matters relevant to specific personal jurisdiction when it requested to depose

Rhulen about various factual misstatements Rhulen made in his affidavit regarding

the agreements. However, Evergreen’s request in its motion for continuance was

not as specific as Evergreen now contends on appeal; rather, in pertinent part,

Evergreen argued the following to the trial court:

             44. Upon information and belief, FilmEngine purposefully
      markets their movies to Texas residents, advertises in Texas, sells
      their movies to Texas residents, and otherwise engages in significant
      business with Texas residents. Plaintiffs, however, do not have
      personal knowledge of the extent of FilmEngine’s contacts with Texas
      and its residents that are unrelated to this lawsuit, and would therefore
      need to conduct discovery before providing the Court with affidavits
      and other documents evidencing FilmEngine’s general contacts with
      Texas.

             45. Plaintiffs request that the Court permit them to serve
      requests for production, requests for admission, and interrogatories
      relating to FilmEngine’s contacts with Texas. Further, once Plaintiffs
      receive and review FilmEngine’s responses, they intend to request the
      deposition of FilmEngine’s corporate representative as well as its
      CEO, Anthony Rhulen, who provided an affidavit in support of
      FilmEngine’s Special Appearance. Because the jurisdictional issue
      will not be ripe for the Court’s consideration until [all] of the
                                        7
      jurisdictional facts are known—and not just those about which Mr.
      Rhulen decided to advise the Court—the Court should defer ruling on
      FilmEngine’s Special Appearance for at least 90 days so that the
      parties can engage in jurisdictional discovery.

(internal footnotes and citations omitted). Evergreen argued that the trial court

should not decide the special appearance until it had all jurisdictional facts, but the

only facts Evergreen specifically identified as being unknown in its motion for

continuance are those related to general jurisdiction. Therefore, we conclude the

facts Evergreen specifically sought to discover were not relevant to Evergreen’s

allegations that personal jurisdiction existed over FilmEngine on the basis of

specific personal jurisdiction.

      Application of the third factor supports the trial court’s denial of Evergreen’s

motion for continuance. In Barron, the plaintiff served requests for production,

requests for disclosure, and notices of depositions. Id. at 850. Here, there is no

evidence in the record that Evergreen attempted to diligently use the rules of civil

procedure for discovery. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865

(Tex. 1988) (addressing diligence factor). Evergreen contends that because it only

had two months, it was unable to propound discovery. FilmEngine responds that

two months was enough time to at least attempt to engage in discovery.

FilmEngine argues that Evergreen’s lack of diligence is further reflected in the fact

that it did not attempt jurisdictional discovery after filing its response. Based on the
                                            8
record, we note that after submission of the special appearance, the trial court

delayed its ruling for approximately three months, and Evergreen did not seek to

conduct discovery or file supplemental affidavits. See Tex. R. Civ. P. 120a(3)

(providing the court shall determine a special appearance based on the pleadings,

stipulations, affidavits and attachments filed by the parties, oral testimony, and the

results of discovery processes); Phillips Dev. & Realty, LLC v. LJA Eng’g, Inc.,

No. 14-14-00858-CV, 2016 WL 3610457, at * 6 (Tex. App.—Houston [14th Dist.]

June 30, 2016, no pet.) (holding that a trial court has discretion to consider late-

filed affidavits in special appearance proceedings); Tempest Broad. Corp. v. Imlay,

150 S.W.3d 861, 870 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (suggesting

that Rule 120a(3) appears to give the trial court discretion to grant the party

opposing a special appearance other forms of relief when the court deems it “just”

to do so).

      Based on our consideration of all the factors, it was not an abuse of

discretion for the trial court to deny Evergreen’s motion for continuance. See Joe,

145 S.W.3d at 161. This is not a situation where Evergreen was unable to present

facts to support its opposition to FilmEngine’s special appearance. See Tex. R. Civ.

P. 120a(3). Evergreen submitted an unsworn declaration that specifically disputed

FilmEngine’s facts denying that the court had specific personal jurisdiction. See

                                          9
Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (West Supp. 2015) (providing that

“an unsworn declaration may be used in lieu of a written sworn declaration,

verification, certification, oath, or affidavit required by statute or required by a

rule, order, or requirement adopted as provided by law”). Additionally, a

substantial amount of the information regarding general jurisdiction that Evergreen

seeks is contained in the record, including that FilmEngine does not maintain an

office in Texas, does not own property in Texas, does not employ any Texas

residents, has no accounts in Texas, has not purchased assets in Texas, and has

never engaged in business in Texas. See In re Guardianship of Cardenas, No. 13-

09-00560-CV, 2010 WL 2543650, at *10 (Tex. App.—Corpus Christi June 24,

2010, no pet.) (mem. op.) (concluding that plaintiff’s rights were not disregarded

when most of the additional facts sought by plaintiff were already contained in the

record).

      We overrule Evergreen’s first issue.

                             III. Special Appearance

      In its second issue, Evergreen contends the trial court erred by granting

FilmEngine’s special appearance.




                                        10
A.    Standard of Review and Burdens of Proof

      The question of whether a court has personal jurisdiction over a nonresident

defendant is a question of law we review de novo. Kelly v. Gen. Interior Constr.,

Inc., 301 S.W.3d 653, 657 (Tex. 2010). In a special appearance, the plaintiff and

the defendant bear shifting burdens of proof. Id. at 658. The plaintiff bears the

initial burden to plead sufficient allegations to bring the nonresident defendant

within the reach of Texas’s long-arm statute. Id. If the plaintiff pleads sufficient

jurisdictional allegations, then the defendant bears the burden to negate all bases of

personal jurisdiction alleged by the plaintiff. Id. It is the plaintiff’s pleadings that

define the scope and nature of the lawsuit; thus, the defendant’s burden is only to

negate jurisdictional allegations alleged in the plaintiff’s pleading. Id. A defendant

may negate the plaintiff’s jurisdictional allegations on either a factual or legal

basis. Id. at 659. If the nonresident defendant presents evidence that it had no

contacts with Texas, then it effectively disproves the plaintiff’s allegations. Id. But,

the plaintiff may respond with its own evidence affirming its allegations. Id. As

such, the trial court must frequently resolve fact questions before deciding the

jurisdictional issue. BMC Software, 83 S.W.3d at 794. 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,

                                          11
no pet.). “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.” BMC Software, 83 S.W.3d at 795. If the

appellate record includes a reporter’s and clerk’s record, implied findings are not

conclusive and may be challenged for legal and factual sufficiency. Id.

      Finally, we must be mindful that due process requires our jurisdictional

inquiry to be separate and distinct from the underlying merits of the parties’

claims. Booth v. Kontomitras, 485 S.W.3d 461, 476-77 (Tex. App.—Beaumont

2016, no pet.). Thus, when viewing Evergreen’s jurisdictional allegations, we ask

only whether Evergreen’s allegations are sufficient to invoke the exercise of

personal jurisdiction over FilmEngine without regard to the merits of Evergreen’s

claims. See id. at 477.

B.    Personal Jurisdiction

      Our consideration of personal jurisdiction involves issues of both federal and

state law. Searcy, 2016 WL 3418248, at *5. A nonresident defendant is subject to

the personal jurisdiction of Texas if (1) the Texas long-arm statute authorizes the

exercise of jurisdiction, and (2) the exercise of jurisdiction comports with federal

and state constitutional due process guarantees. Kelly, 301 S.W.3d at 657. Because

the Texas long-arm statute provides for personal jurisdiction that extends to the

                                        12
limits of the United States Constitution, federal due process requirements “shape

the contours of Texas courts’ jurisdiction reach.” Searcy, 2016 WL 3418248, at *5.

Personal jurisdiction can be established over a nonresident only if the defendant

has purposefully established “minimum contacts” with the forum state and the

exercise of jurisdiction over the defendant comports with “traditional notions of

fair play and substantial justice.” Daimler AG v. Bauman, 134 S. Ct. 746, 754

(2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,

923 (2011)); Searcy, 2016 WL 3418248, at *5.

      As discussed above, Evergreen only alleged specific personal jurisdiction,

which exists when the defendant purposefully avails itself of conducting activities

in the forum states and the cause of action arises from or is related to those

activities. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); Searcy,

2016 WL 3418248, at *5. The first step in the personal jurisdiction analysis is to

determine whether a nonresident defendant purposefully availed itself of the

benefits and protections of the state’s laws by establishing minimum contacts with

Texas. In the “purposeful-availment” analysis as applied to specific personal

jurisdiction: (1) only the defendant’s contacts with Texas are considered; (2) the

defendant’s contacts must be purposeful, rather than random, fortuitous, isolated,

or attenuated; (3) the defendant must have sought some benefit, advantage, or

                                        13
profit by availing itself of Texas jurisdiction. Michiana Easy Livin’ Country, Inc. v.

Holten, 168 S.W.3d 777, 785 (Tex. 2005); see also Searcy, 2016 WL 3418248, at

*5. Our analysis is focused on the quality and nature of the defendant’s contacts,

not the number of contacts. Am. Type Culture Collection, Inc. v. Coleman, 83

S.W.3d 801, 806 (Tex. 2002). “Even a single purposeful contact may be sufficient

to meet the requirements of minimum contacts when the cause of action arises

from the contact.” Micromedia v. Automated Broad. Controls, 799 F.2d 230, 234

(5th Cir. 1986); see also Crithfield v. Boothe, 343 S.W.3d 274, 286 (Tex. App.—

Dallas 2011, no pet.).

      The United States Supreme Court has explained that an individual’s contract

with a nonresident defendant cannot alone establish sufficient minimum contacts in

the plaintiff’s home forum for specific jurisdiction to exist. Burger King, 471 U.S.

at 478; see Walden v. Fiore, 134 S. Ct. 1115, 1122-23 (2014); Hoagland v.

Butcher, 474 S.W.3d 802, 815 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

The Court has rejected the notion that personal jurisdiction is determined solely by

the place of contracting or of performance. Burger King, 471 U.S. at 478. The

Court explained that in determining whether a defendant has purposefully

established minimum contacts within the forum state in a contract situation, the

court should consider the parties’ “prior negotiations and contemplated future

                                         14
consequences, along with the terms of the contract and the parties’ actual course of

dealing[.]” Id. at 479. Only those acts which relate to the formation of the contract

and the subsequent breach are relevant in a specific jurisdiction analysis. Religious

Tech. Ctr. v. Liebreich, 339 F.3d 369, 375 (5th Cir. 2003). Ultimately, the goal of

our analysis is to determine whether a nonresident’s conduct and connection to a

forum state are such that he should reasonably anticipate being haled into court

there. Burger King, 471 U.S. at 474-75.

      “The contract’s place of performance is an important consideration.”

Hoagland, 474 S.W.3d at 815. If a contract is specifically designed to benefit a

nonresident defendant with a Texas resident’s skills performed in Texas, then it is

reasonable to subject the nonresident defendant to Texas jurisdiction in connection

with litigation arising from that contract. Id. We will also consider the contract’s

choice-of-law provision. Burger King, 471 U.S. at 482. A nonresident’s action in

sending funds to Texas in relation to a contract is another factor to consider. See

Bissbort v. Wright Printing & Pub. Co., 801 S.W.2d 588, 589 (Tex. App.—Fort

Worth 1990, no writ) (considering it a relevant fact that a nonresident defendant

wired a large sum of money to a Texas bank in determining minimum contacts);

but see Falcon Crest Aviation Supply, Inc. v. Jet Mgmt., LLC, No. 14-11-00789-

CV, 2012 WL 4364661, at *4 (Tex. App.—Houston [14th Dist.] Sept. 25, 2012, no

                                          15
pet.) (mem. op.) (stating that a nonresident’s defendant’s actions in sending

payment to Texas did not support a finding of jurisdiction when place of payment

was dictated by plaintiff). A nonresident’s action in initiating phone calls from the

nonresident’s state directed to Texas is not enough to satisfy the minimum contacts

requirements. See Hsu v. Liu, No. 09-06-423 CV, 2007 WL 3395644, at *1–4

(Tex. App.—Beaumont Nov. 15, 2007, pet. denied) (mem. op.).

      As alleged by Evergreen, “[p]ersonal jurisdiction over the non-resident

Defendant is proper because this lawsuit arises from, was connected with an act or

transaction, and relates to the purposeful acts of the non-resident Defendant in

Texas, and those purposeful acts directed towards Texas.” Evergreen further

alleged in its petition that FilmEngine entered into the agreements with Evergreen,

a Texas business, and DeRosa-Grund, a Texas resident and that FilmEngine

“transact[ed] business in Montgomery County, Texas.” A plaintiff is not required

to plead in its petition the theories or bases of personal jurisdiction upon which it

relies. Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.]

2005, no pet.). To meet its initial burden, it is sufficient if the plaintiff pleads facts

sufficient to bring a nonresident defendant within the provisions of the long-arm

statute. Id. A plaintiff satisfies this minimal requirement by an allegation that the

nonresident defendant was doing business in Texas. Id.; see also Tex. Civ. Prac. &

                                           16
Rem. Code Ann. § 17.042(1) (West 2015). Here, we conclude Evergreen met its

initial burden and the burden then shifted to FilmEngine to negate every basis for

jurisdiction alleged by Evergreen. See Huynh, 180 S.W.3d at 619.

      To negate Evergreen’s pleadings, FilmEngine denied in its special

appearance that it had contacts with Texas or had purposefully availed itself of the

privilege of doing business in Texas. FilmEngine further stated that it is a

Delaware limited liability company, has no offices in Texas, and owns no property

in Texas. To respond to the allegations that FilmEngine engaged in purposeful acts

directed towards Texas, FilmEngine submitted the affidavit of its CEO, Anthony

Rhulen. In his affidavit, Rhulen stated that FilmEngine has never purposefully

sought to enter into a contract with a Texas resident for services to be provided in

Texas, except for legal counsel in this case. Regarding the agreements with

Evergreen, Rhulen stated that “[a]ll discussions, meetings, and investigations

before and after the agreements were conducted in California[,]” where

FilmEngine’s principal place of business is located. Rhulen testified that the

agreements at issue had a choice-of-law provision designating the application of

California law. Rhulen testified that DeRosa-Grund solicited him in California in

the past about rights he had in some intellectual property. He stated that DeRosa-

Grund approached him in July 2013 in California regarding the two motion picture

                                        17
deals he had and asked FilmEngine to become involved with the production of the

projects and to assist in obtaining financing and distribution of the product. Rhulen

testified that every in-person meeting regarding the projects occurred in California.

He further stated that the two agreements forming the basis of Evergreen’s lawsuit

were executed in California. He denied ever meeting DeRosa-Grund in Texas.

Rhulen stated that he primarily communicated with DeRosa-Grund by email and

some by phone, but he had no knowledge of DeRosa-Grund’s locations during

these communications. The agreements have no reference to Texas, and there is no

indication or agreement that production or distribution would take place in Texas.

      Evergreen argues that FilmEngine is subject to the specific jurisdiction of

Texas courts because (1) FilmEngine entered into the agreements with a Texas

resident and Texas business; (2) Evergreen performed all obligations under the

agreements in Texas; (3) FilmEngine solicited Evergreen in Texas to initiate

negotiations for the agreements; (4) Evergreen executed the agreements in Texas;

(5) FilmEngine mailed the executed copies of the agreements to Evergreen in

Texas; (6) FilmEngine knew Evergreen was located in Texas and performing

obligations under the agreements in Texas; (7) FilmEngine communicated with

Evergreen hundreds of times over the course of more than one year about the

execution and performance of the agreements while Evergreen was located in

                                         18
Texas; (8) FilmEngine made a wire transfer of funds to Evergreen’s bank in Texas;

(9) FilmEngine mailed a Form 1099 to Evergreen in Texas; (10) the agreements

contemplated a long-term relationship, and therefore FilmEngine contemplated

having continued contacts with Evergreen in the future related to the agreements;

and (11) FilmEngine negotiated the agreements with Evergreen for more than a

year, while Evergreen was located in Texas. Evergreen filed DeRosa-Grund’s

affidavit with the trial court to support these allegations. Many of Evergreen’s

allegations point to its own actions, but Evergreen’s actions are not relevant to our

determination of whether FilmEngine purposefully availed itself in Texas. See

Michiana, 168 S.W.3d at 785; see also Searcy, 2016 WL 3418248, at *5.

Evergreen’s argument that FilmEngine is subject to specific jurisdiction in Texas

because FilmEngine communicated with DeRosa-Grund numerous times while

DeRosa-Grund was allegedly located in Texas is unpersuasive. Evergreen seems to

suggest that these communications show FilmEngine targeted or purposely

directed communications towards Texas or a Texas resident. We note that the

initial emails between DeRosa-Grund and FilmEngine dated in June and August of

2012, contain no reference to DeRosa-Grund or Evergreen’s physical address in

Texas. There is a vague reference by DeRosa-Grund that he has a friend “here in

Houston” in one of the emails dated months after the parties started

                                         19
communicating about the projects. DeRosa-Grund’s email signature block contains

only his name, title, the name of the company, his direct phone line, fax number,

and email address. It does not contain his physical address. In August of 2013, over

a year after the initial email communication reflected in the record, there is an

email communication that references an address for Evergreen in Texas.

      FilmEngine alleges and supports with affidavit testimony that DeRosa-

Grund reached out to FilmEngine first while DeRosa-Grund was located in

California, not Texas. Rhulen also states that all in-person meetings occurred in

California, that DeRosa-Grund represented to him that his film representative was

located in California, and that his legal counsel was located in California.

Additionally, as FilmEngine argues in its brief, DeRosa-Grund could have been

anywhere in the world when he received the communications from FilmEngine,

not just Texas.

      While Evergreen’s affidavit controverts some of FilmEngine’s allegations

and evidence regarding jurisdiction, at this stage of the litigation, we must presume

the trial court resolved all factual disputes in favor of its judgment. See Coleman,

83 S.W.3d at 806. We conclude FilmEngine’s evidence conclusively negates all

jurisdictional grounds alleged by Evergreen. FilmEngine’s motion and affidavit

establishes that DeRosa-Grund approached FilmEngine in California, all in-person

                                         20
meetings to negotiate the agreements occurred in California, the agreements were

executed in California, the parties agreed that California law would govern the

agreements, and that FilmEngine had no intention to engage Evergreen to perform

its obligations under the agreements in Texas. Because FilmEngine lacks minimum

contacts with Texas, we need not determine whether the exercise of jurisdiction

would offend traditional notions of fair play and substantial justice. See Baldwin v.

Household Int’l, Inc., 36 S.W.3d 273, 277 (Tex. App.—Houston [14th Dist.] 2001,

no pet.). For these reasons, we overrule Evergreen’s second issue.

      Having held that the trial court did not err in denying Evergreen’s motion for

continuance and granting FilmEngine’s special appearance, we affirm the trial

court’s judgment.

      AFFIRMED.



                                              ______________________________
                                                     CHARLES KREGER
                                                          Justice

Submitted on June 5, 2015
Opinion Delivered September 22, 2016

Before Kreger, Horton and Johnson, JJ.




                                         21
