                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-462-CV


MOUNTAIN STATES EMPLOYERS                                          APPELLANTS
COUNCIL, INC. AND S. LORRIE
RAY

                                              V.

COBB MECHANICAL CONTRACTORS,                                           APPELLEE
INC.

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

            FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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

                          MEMORANDUM OPINION 1

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

                                   I. INTRODUCTION

      This is an interlocutory appeal by Appellants Mountain States Employers

Council, Inc. and S. Lorrie Ray from the trial court’s order denying their special

appearance in a legal malpractice action filed by Appellee Cobb Mechanical




      1
          … See T EX. R. A PP. P. 47.4.
Contractors, Inc. (“CMC”).2 For the reasons set forth below, we will affirm the

trial court’s order.

                       II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Mountain States is a Colorado nonprofit corporation. Employers may

become “members” of Mountain States by completing an application and

paying dues. Mountain States then assists its members with employment and

labor matters. Mountain States’s principal employees are licensed attorneys,

one of whom was S. Lorrie Ray, an individual residing in Colorado. CMC was

a member of Mountain States.

      CMC is a Colorado corporation with its principal place of business in

Colorado Springs, Colorado. In 1993 and 1994, CMC performed mechanical

work for two prisons being built in Potter County, Texas, and Dallam County,

Texas. The United Association of Plumbers and Pipe Fitters, Local Union No.

196, AFL-CIO filed an unfair labor practice charge with the National Labor

Relations Board (NLRB), asserting that CMC had violated the Labor Management

Relations Act by engaging in unfair hiring practices at the two Texas prison

construction sites. The NLRB in Fort Worth, Texas, issued a complaint and a

notice of hearing.


      2
      … See T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(7) (Vernon Supp.
2007).

                                          2
         About three months after the complaint issued, CMC engaged the

services of Appellants to represent CMC in the NLRB proceeding. Appellants

provided legal representation to CMC in connection with the Texas NLRB

proceeding, including the pretrial investigation in Texas, the filings of briefs and

other legal documents in Texas, and representation at the administrative trial

before an administrative law judge (ALJ) in Amarillo, Texas, from November 8

through 10, 1994.

         The ALJ ultimately rendered a decision adverse to CMC, concluding that

CMC had committed unfair labor practices. The ALJ decision stated that “[i]f

no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and

Regulations, the findings, conclusions, and recommend[ations] Order shall, as

provided in Sec. 102.48 of the Rules, be adopted by the Board and all

objections to them shall be deemed waived for all purposes.”              Although

Appellants—on behalf of CMC—prepared exceptions to the ALJ decision, the

exceptions were not timely filed, and the NLRB subsequently adopted the ALJ’s

findings and conclusions because no statement of exceptions had been timely

filed.

         Appellants—again on behalf of CMC—filed a motion for reconsideration

of the NLRB order. The NLRB declined reconsideration, and Appellants—on

behalf of CMC— pursued a variety of legal remedies and compliance-phase

                                         3
appeals and hearings for the next ten years. As a result, the NLRB proceeding

took approximately eleven years to resolve and was finally settled in December

2005. Ultimately, CMC was ordered to pay certain sums to various individuals,

plus interest and FICA withholding.

      CMC brought the underlying legal malpractice action against Appellants

in Texas state court for their alleged negligence in failing to adequately and

properly represent CMC at the NLRB trial in Amarillo and for their failure to

timely file a statement of exceptions to the ALJ decision. Appellants responded

by filing a special appearance.

      Based on the agreement of the parties,3 the trial court ruled on

Appellants’ special appearance without an evidentiary hearing, after considering

the live pleadings, Appellants’ special appearance, CMC’s response, Appellants’

supplemental briefing in support of their special appearance, and CMC’s

response to Appellants’ supplemental briefing.          The trial court denied

Appellants’ special appearance.     Appellants requested findings of fact and

conclusions of law, but the record contains none. Appellants perfected this




      3
      … The record reflects that the trial court heard argument on the special
appearance, recessed the hearing to permit the parties to file additional briefing
and proof, and stated it would rule on the special appearance when the parties
informed the trial court that they had filed everything necessary.

                                        4
interlocutory appeal challenging the trial court’s denial of their special

appearance.

                    III. A FFIDAVIT O BJECTION N OT P RESERVED

      In their third issue, Appellants claim that the trial court abused its

discretion if it considered the affidavit of CMC’s President Tom Cobb in

deciding to deny Appellants’ special appearance.          Appellants argue that

statements in Cobb’s affidavit are conclusory and that Cobb is not qualified or

competent to testify about the standard of care for Appellants’ representation

of Cobb before the NLRB.

      Appellants’ complaints concerning Cobb’s affidavit are not preserved for

our review. Approximately one week before the special appearance hearing,

CMC filed a second amended original petition and a response to Appellants’

special appearance.    Cobb’s affidavit was attached to CMC’s response.

Appellants subsequently filed supplemental briefing in support of their special

appearance and argued, in part, that “[w]hile these ‘new’ amended allegations

are clearly intended to suggest that [Appellants] may now have engaged in

potential tortious conduct in Texas, they are nothing more than bald, conclusory

statements that should be disregarded by the Court.” [Emphasis in original.]

This statement in Appellants’ supplemental briefing is directed at the amended

allegations in CMC’s second amended petition, not at Cobb’s affidavit. Cobb’s

                                        5
affidavit is not mentioned. Nonetheless, this is the objection that Appellants

rely on in making their arguments on appeal concerning Cobb’s affidavit.

      The record does not indicate that an objection to Cobb’s affidavit, as

opposed to CMC’s second amended original petition, was ever specifically

called to the trial court’s attention or ruled upon. Under these circumstances,

we hold that Appellants’ objection to Cobb’s affidavit was not preserved for our

review. See T EX. R. A PP. P. 33.1(a)(2); Int’l Turbine Serv., Inc. v. Lovitt, 881

S.W.2d 805, 808 (Tex. App.—Fort Worth 1994, writ denied).

      Moreover, Appellants’ objection to Cobb’s affidavit—that Cobb is not

qualified or competent to testify about the standard of care for Appellants’

representation of Cobb before the NLRB—might have merit in a summary

judgment proceeding; in the special appearance context, however, the issue is

Mountain States’s and Ray’s contacts with Texas, which Cobb may and did

testify to based on his personal knowledge. See T EX. R. C IV. P. 120a(3). Thus,

if Mountain States’s and Ray’s appellate objection to Cobb’s affidavit had been

made and brought to the trial court’s attention, the trial court would not have

erred by overruling their objection because the objection is invalid in this

context.

      We overrule Appellants’ third issue.




                                        6
                      IV. D ENIAL OF S PECIAL A PPEARANCE

      In their first and second issues, Appellants complain that the trial court

erred by denying their special appearance. Specifically, Appellants challenge

the legal and factual sufficiency of the evidence to support the trial court’s

order denying their special appearance.

      A.    Personal Jurisdiction

      A Texas court may assert personal jurisdiction over a nonresident

defendant if the requirements of the Texas long-arm statute and due process

under the Fourteenth Amendment are satisfied. U.S. C ONST. amend. XIV, § 1;

T EX. C IV . P RAC. & R EM. C ODE A NN. §§ 17.041–.045 (Vernon 1997 & Supp.

2007); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

413–14, 104 S. Ct. 1868, 1871–72 (1984); Moki Mac River Expeditions v.

Drugg, 221 S.W.3d 569, 574 (Tex. 2007); CSR Ltd. v. Link, 925 S.W.2d 591,

594 (Tex. 1996) (orig. proceeding); TravelJungle v. Am. Airlines, Inc., 212

S.W.3d 841, 845 (Tex. App.—Fort Worth 2006, no pet.); Michel v. Rocket

Eng’g Corp., 45 S.W.3d 658, 668 (Tex. App.—Fort Worth 2001, no pet.).

      The Texas long-arm statute permits Texas courts to exercise jurisdiction

over a nonresident defendant who “does business” in Texas. T EX. C IV. P RAC.

& R EM. C ODE A NN . § 17.042; BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 795 (Tex. 2002); TravelJungle, 212 S.W.3d at 845; SITQ, E.U.,

                                       7
Inc. v. Reata Rests., Inc., 111 S.W.3d 638, 645 (Tex. App.—Fort Worth 2003,

pet. denied). The statute lists some activities that constitute “doing business,”

including the commission of a tort, in whole or in part. T EX. C IV. P RAC. & R EM.

C ODE A NN. § 17.042; TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at

645.    The list of activities set forth in section 17.042 is not exclusive,

however. BMC Software, 83 S.W.3d at 795; TravelJungle, 212 S.W.3d at

845.    Section 17.042’s broad language extends Texas courts’ personal

jurisdiction only “as far as the federal constitutional requirements of due

process will permit.” BMC Software, 83 S.W.3d at 795 (quoting U-Anchor

Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977), cert. denied, 434 U.S.

1063 (1978)); TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at 645.

       Due process is satisfied when (1) the defendant has established minimum

contacts with the forum state and (2) the exercise of jurisdiction comports with

traditional notions of fair play and substantial justice.      Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945); BMC Software,

83 S.W.3d at 795; TravelJungle, 212 S.W.3d at 846; Reata, 111 S.W.3d at

645.

       A nonresident defendant who has “purposefully availed” itself of the

privileges and benefits of conducting business in a foreign jurisdiction has

sufficient contacts with the forum to confer personal jurisdiction on a court in

                                        8
that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–76, 105 S.

Ct. 2174, 2183 (1985); BMC Software, 83 S.W.3d at 795; TravelJungle, 212

S.W.3d at 846.

      Three factors are important in determining whether a defendant has

purposefully availed itself of the forum: first, only the defendant’s contacts

with the forum count; second, the acts relied on must be purposeful rather than

merely fortuitous; and third, the defendant must seek some benefit, advantage,

or profit by availing itself of the forum. Michiana Easy Livin’ Country, Inc. v.

Holten, 168 S.W.3d 777, 785 (Tex. 2005); Karstetter v. Voss, 184 S.W.3d

396, 403 (Tex. App.—Dallas 2006, no pet.); TravelJungle, 212 S.W.3d at 846.

      Personal jurisdiction exists if the nonresident defendant’s minimum

contacts give rise to either specific jurisdiction or general jurisdiction.

Helicopteros Nacionales de Colombia, 466 U.S. at 413–14, 104 S. Ct. at 1872;

BMC Software, 83 S.W.3d at 795; TravelJungle, 212 S.W.3d at 846; Reata,

111 S.W.3d at 646. A trial court has general jurisdiction over a nonresident

defendant when that defendant’s contacts in a forum are continuous and

systematic so that the forum may exercise personal jurisdiction over the

defendant even if the cause of action did not arise from or relate to activities

conducted within the forum state.       BMC Software, 83 S.W.3d at 796;

TravelJungle, 212 S.W.3d at 846; Reata, 111 S.W.3d at 646. In contrast,

                                       9
specific jurisdiction is present if the nonresident defendant’s alleged liability

arises from or is related to an activity conducted within the forum.        BMC

Software, 83 S.W.3d at 796; TravelJungle, 212 S.W.3d at 846–47; Reata,

111 S.W.3d at 646. When a plaintiff asserts that a trial court has specific

jurisdiction over a nonresident defendant, the minimum contacts analysis

focuses on the relationship among the defendant, the forum, and the litigation.

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

S.W.2d 223, 227–28 (Tex. 1991); TravelJungle, 212 S.W.3d at 847; Reata,

111 S.W.3d at 646.

      B.    Standard of Review

      Whether a trial court has personal jurisdiction over a defendant is a

question of law. BMC Software, 83 S.W.3d at 793; TravelJungle, 212 S.W.3d

at 845; Reata, 111 S.W.3d at 644. The plaintiff bears the initial burden of

pleading sufficient allegations to bring a nonresident defendant within the

provisions of the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574; BMC

Software, 83 S.W.3d at 793; TravelJungle, 212 S.W.3d at 845; Reata, 111

S.W.3d at 644. A nonresident defendant challenging a Texas court’s personal

jurisdiction over it must negate all jurisdictional bases.   BMC Software, 83

S.W.3d at 793; TravelJungle, 212 S.W.3d at 845; Reata, 111 S.W.3d at 644.




                                       10
      Where, as here, the trial court does not enter express findings of fact and

conclusions of law regarding its ruling on a special appearance, the reviewing

court infers all fact findings necessary to support the judgment that are

supported by the evidence. BMC Software, 83 S.W.3d at 794–95. These

implied findings may be challenged for legal and factual sufficiency.          Id.;

TravelJungle, 212 S.W.3d at 845; Michel, 45 S.W.3d at 668. Once it is

determined that the trial court’s findings are supported by sufficient evidence,

or if the material facts are undisputed, the reviewing court decides as a matter

of law whether those facts negate all bases for personal jurisdiction. BMC

Software, 83 S.W.3d at 794–95.

      Under the legal sufficiency standard of review, we view the evidence in

the light most favorable to the challenged finding and indulge every reasonable

inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822

(Tex. 2005). We must credit favorable evidence if a reasonable fact-finder

could and disregard contrary evidence unless a reasonable fact-finder could not.

Id. at 827. There is legally insufficient evidence or “no evidence” of a vital fact

when (a) there is a complete absence of evidence of a vital fact, (b) the court

is barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no

more than a mere scintilla, or (d) the evidence conclusively establishes the

                                        11
opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d

706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998). More than a

scintilla of evidence exists to support a finding if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Id.

      In reviewing the factual sufficiency of the evidence, we consider and

weigh all of the evidence in the record, and we may overturn a judgment only

if it is so against the great weight and preponderance of the evidence as to be

clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985).

      The scope of our review includes all evidence before the trial court on the

issue of personal jurisdiction. TravelJungle, 212 S.W.3d at 845; Reata, 111

S.W.3d at 645; Michel, 45 S.W.3d at 667; see also Hotel Partners v. Craig,

993 S.W.2d 116, 121 (Tex. App.—Dallas 1994, writ denied) (stating that “[i]n

determining whether [defendants] carried this burden” of negating all bases of

personal jurisdiction, “we review all the evidence that was before the trial

court”). The trial court here, based on the agreement of the parties, ruled on

Appellants’ special appearance without an evidentiary hearing after considering

the live pleadings, Appellants’ special appearance, CMC’s response, Appellants’

supplemental briefing in support of their special appearance, CMC’s response




                                      12
to Appellants’ special appearance, and documents attached to these items.

Consequently, we review these filings.

      C.    CMC’s Allegations and Evidence of Specific Personal Jurisdiction

      CMC’s second amended original petition, which the trial court expressly

indicated that it had considered in ruling on Appellants’ special appearance,

alleged that the trial court possessed specific jurisdiction over Appellants

because their contacts with the State of Texas were purposeful and the cause

of action asserted arose from or relates to those contacts:

•     Appellants agreed to represent CMC in connection with a complaint
      initiated by the Region 16 Director of the NLRB in Fort Worth, Texas,
      relating to job sites in Amarillo and Dalhart, Texas;

•     In connection with the NLRB proceeding, Appellants filed an answer to
      the complaint with the NLRB in Fort Worth, Texas;

•     In connection with the NLRB proceeding, Appellants made an appearance
      in the proceeding in Fort Worth, Texas;

•     In connection with the NLRB proceeding, Appellants personally appeared
      in the State of Texas to represent CMC at a trial in Amarillo that occurred
      from November 8 through 10, 1994;

•     In connection with the NLRB proceeding, Appellants personally appeared
      in the State of Texas to interview witnesses prior to trial;

•     In connection with the NLRB proceeding, Appellants made multiple
      telephone calls to representatives of the NLRB in Texas;

•     In connection with the NLRB proceeding, Appellants made multiple
      telephone calls to persons other than the NLRB;


                                       13
•     In connection with the NLRB proceeding, Appellants requested the
      issuance by the NLRB of subpoenas for witnesses to appear at the trial
      in Amarillo, Texas; and

•     In connection with the NLRB proceeding, Appellants filed numerous
      pleadings and other matters with the NLRB in Fort Worth, Texas.

      D.    Appellants’ Special Appearance and Supplemental Briefing

      Appellants’ special appearance alleged that specific jurisdiction did not

exist. Appellants argued that their representation of CMC evolved from the

membership agreement that was executed in Colorado.           Appellants also

contend that their representation of CMC before a federal agency in Texas,

rather than a Texas state court, falls short of the “purposeful availment”

requirement. And finally, Appellants argue on appeal that the crux of CMC’s

malpractice claim concerns the untimely exceptions and point out that the

exceptions were drafted in Colorado for filing in Washington, D.C.

      In Ray’s affidavit, which was attached in support of Appellants’ special

appearance, she averred that all research, preparations, pleadings, and

correspondence pertaining to the NLRB proceeding originated in Mountain

States’s offices in Denver and that her contact with CMC occurred with

personnel located at CMC’s offices in Colorado Springs, Colorado.          Ray

admitted that she attended the hearing before the ALJ in November 1994. Ray

stated that after the ALJ decision was rendered, she prepared exceptions at the


                                      14
Denver office and sent them to the NLRB in Washington, D.C., via overnight

mail. Ray concluded her affidavit by stating that she had not visited Texas as

a representative of Mountain States for any reason other than the hearing in

1994.

      Appellants’ supplemental briefing in support of their special appearance

claims that CMC “goes to great lengths to stretch the number of perceived

specific jurisdictional contacts [Appellants] have with the State of Texas” but

that their allegations exclusively relate to the three-day NLRB hearing in Texas.

Appellants contend that this “case is, and has always been, about [Appellants’]

alleged failure to timely file exceptions with the NLRB in Washington, D.C.”

      E.    Specific Jurisdiction Analysis

      CMC bore the initial burden of pleading sufficient facts to invoke personal

jurisdiction over Appellants under the Texas long-arm statute. Moki Mac, 221

S.W.3d at 574 (citing Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d

801, 807 (Tex. 2002), cert. denied, 537 U.S. 1191 (2003)). Appellants then

had the burden of negating all forms of personal jurisdiction that CMC alleged.

Id.

      Here, the facts pleaded by CMC, and indeed not disputed by Appellants,

establish that Mountain States, through its attorneys including Ray, provided

legal representation in connection with the NLRB proceeding before an ALJ of

                                       15
the NLRB in a commissioner’s courtroom in Amarillo, Texas. The proceeding

concerned alleged unfair employment practices that had occurred in Texas.

There is no evidence in the record that Appellants associated local counsel;4

instead, Appellants traveled to Texas to investigate the claims, interviewed

witnesses in Texas, filed pleadings and documents in Texas, obtained

subpoenas from the NLRB in Texas, and made phone calls to Texas.             As

previously mentioned, CMC sued Appellants in Texas for alleged legal

malpractice arising out of Appellants’ legal representation of CMC in the Texas

NLRB proceeding.

      Allegations that a nonresident defendant did business in Texas by

committing a tort (such as legal malpractice), in whole or in part, in Texas are

sufficient to satisfy the literal language of the Texas long-arm statute but not

due process concerns. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 17.042(2);

Moki Mac, 221 S.W.3d at 574–75; Michiana, 168 S.W.3d at 788;

TravelJungle, 212 S.W.3d at 849. The Texas long-arm statute will reach as far

as the federal constitutional requirements of due process allow. Moki Mac, 221




      4
       … In fact, Mountain States’s website advertises that it provides
employment law services to its members, including representation before any
state or federal administrative agency, and that they represent their members
where the action takes place. Mountain States Employers Council, Inc.,
http://www.msec.org (last visited June 26, 2008).

                                      16
S.W .3d at 575 (citing Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at

226). Thus, we next analyze whether, here, in this case, Texas’s exercise of

personal jurisdiction over Appellants is limited by due process concerns.

      As previously mentioned, federal due process requirements limit a state’s

power to assert personal jurisdiction over a nonresident defendant; personal

jurisdiction is proper when (1) the nonresident defendant has established

minimum contacts with the forum state, and (2) the exercise of jurisdiction

comports with traditional notions of fair play and substantial justice. Moki Mac,

221 S.W.3d at 575. We thus proceed to a minimum contacts analysis. Here,

Appellants purposefully availed themselves of the privilege of conducting

activities (legally representing CMC) in Texas. Appellants invoked the benefits

and protections of Texas law by interviewing witnesses, filing legal documents,

and obtaining the issuance of subpoenas. These contacts with Texas were the

contacts of Appellants, not the unilateral activity of another party or a third

person.   These contacts by Appellants with Texas were purposeful, not

random, fortuitous, or attenuated. And Appellants sought some benefit—here

the providing of services to its paid members—by availing themselves of the

opportunity to represent its members in Texas. See, e.g., Jackson v. Kincaid,

122 S.W.3d 440, 449–50 (Tex. App.—Corpus Christi 2003, pet. granted,

judgm’t vacated w.r.m.) (holding that Texas court possessed specific

                                       17
jurisdiction over nonresident attorney defendant); see also Tempest Broad.

Corp. v. Imlay, 150 S.W.3d 861, 876 (Tex. App.—Houston [14th Dist.] 2004,

no pet.) (same); Rowland & Rowland, P.C. v. Tex. Employers Indem. Co., 973

S.W.2d 432, 436 (Tex. App.—Austin 1998, no pet.) (same).

      We next address the “arise from or relate to” requirement of specific

jurisdiction. Moki Mac, 221 S.W.3d at 579–80. Appellants claim that their

actions in Texas do not arise from and are not related to CMC’s causes of

action against it because CMC’s causes of action against it actually arise from

CMC’s membership contract with Mountain States. 5 Appellants claim that the


      5
        … In support of their no-specific-jurisdiction-exists arguments, Appellants
cite several legal malpractice cases, including Markette v. X-Ray X-Press Corp.,
240 S.W.3d 464, 468–69 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(holding that Texas client did not plead facts sufficient to give rise to specific
jurisdiction because Indiana attorney and firm, who were hired to represent
Texas client in action pending in Indiana, were not substantially connected to
the operative facts of the litigation by merely giving legal advice about Texas
law); Klenk v. Bustamante, 993 S.W.2d 677, 679–81, 683 (Tex. App.—San
Antonio 1998, no pet.), abrogated on other grounds by BMC Software, 83
S.W.3d 789 (holding that assertion of jurisdiction over in-house counsel from
Smith Barney’s New York headquarters was improper as a matter of law where,
at most, the attorneys engaged in long-distance communication from New York
with the Texas appellee, who was a former employee of Smith Barney);
Shearson Lehman Bros., Inc. v. Hughes, Hubbard, & Reed, 902 S.W.2d 60, 63,
65–66 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (holding that Los
Angeles firm’s contacts with Texas were inadequate to establish specific
jurisdiction because client’s claims against firm did not arise as a result of firm’s
contacts with Texas during security registration process), cert. denied, 517
U.S. 1245 (1996); Geo-Chevron Ortiz Ranch #2 v. Woodworth, No. 04-06-
00412-CV, 2007 WL 671340, at *3 (Tex. App.—San Antonio Mar. 7, 2007,

                                         18
contract was entered into between Colorado residents in Colorado and that

CMC’s claims should be litigated in Colorado.        CMC’s pleadings, however,

clearly state a cause of action for legal malpractice by alleging that Defendants

“negligently failed to defend and advise Plaintiff with respect to the NLRB

proceedings, including the compliance proceedings.” The trial court did not

abuse its discretion by construing CMC’s pleadings as pleading a tort cause of

action or by rejecting Appellants’ attempts to recast CMC’s claims purely as

one for breach of contract.

      For a nonresident defendant’s forum contacts to support an exercise of

specific jurisdiction, there must be a substantial connection between those

contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d at

584–85. Appellants agreed to represent CMC at an NLRB proceeding in Texas

and their alleged legal malpractice occurred during the course of that

representation. There is a substantial connection between Appellants’ contacts

with Texas and the operative facts of the litigation. See, e.g., Tempest Broad.

Corp., 150 S.W.3d at 876 (holding that nonresident defendant attorney’s




pet. denied) (mem. op.) (holding that attorney and law firm’s sporadic contacts
of two litigation-related trips to Texas and communications by telephone were
not sufficient to confer general jurisdiction where litigation occurred in Georgia).
As is apparent from the preceding parentheticals, each case cited by Appellants
is factually distinguishable from the present case.

                                        19
representations in Texas that formed the basis of plaintiff’s misrepresentation

and tortious interference with contract claims supported trial court’s exercise

of specific jurisdiction).

      Appellants also claim that the relatedness requirement between

Appellants’ contacts and CMC’s claims is lacking because (1) the heart of

CMC’s legal malpractice claim involves Appellants’ alleged failure to timely file

exceptions, and the exceptions were prepared in Colorado to be filed in

Washington, D.C.; and (2) it was CMC’s actions in engaging in an unfair labor

practice that resulted in the proceeding in Texas, not Appellants’ actions, and

thus Appellants cannot be said to have chosen Texas as a forum. The Corpus

Christi Court of Appeals addressed arguments similar to those raised by

Appellants in Jackson v. Kincaid.     122 S.W .3d at 449–50.        In Jackson,

Oklahoma lawyers provided legal representation in connection with their clients’

bankruptcy proceedings in a Texas federal bankruptcy court. Id. at 444, 448.

The Oklahoma lawyers appeared in bankruptcy court in Texas on their clients’

behalf and also conducted telephone hearings and prepared and transmitted to

Texas a mediation settlement. Id. at 446. The clients sued their Oklahoma

lawyers in Texas, alleging a cause of action for legal malpractice, among others.

Id. at 444. In filing their special appearance, the Oklahoma lawyers argued that

the bulk of the legal representation that they provided in connection with the

                                       20
bankruptcy was performed in Oklahoma and that they did not have a choice

about the forum, which their clients had chosen. Id. at 449–50.

      The Jackson court stated that the Oklahoma lawyers had a choice about

whether to represent their clients in Texas, that the Oklahoma lawyers chose

to do so, and that they were—via their special appearance—seeking to avoid

the consequences of that choice.        Id. at 450.    The Jackson court thus

determined that the Oklahoma lawyers reasonably could have anticipated being

called into a Texas court because their activities in providing              legal

representation in connection with the bankruptcy included direct acts within

Texas as well as conduct outside Texas and that such contacts were not

random, fortuitous, or incidental but instead each lawyer’s appearance was a

substantial, purposeful contact directed at the State of Texas. Id. The Jackson

court ultimately held that the clients’ causes of action related to or arose from

the Oklahoma lawyers’ appearances and legal representation on behalf of their

clients in the bankruptcy and that the Oklahoma lawyers did not meet their

burden of negating specific jurisdiction as a basis for the trial court’s exercise

of jurisdiction. Id.

      The Jackson court’s reasoning applies here as well. Although some of

the preparation that Appellants performed for the NLRB proceeding took place

outside Texas, CMC’s cause of action for legal malpractice specifically relates

                                       21
to Appellants’ legal representation in a proceeding before an ALJ in Texas.

Appellants did not associate local counsel but undertook to represent CMC in

a legal proceeding that Appellants knew was pending in Texas.               Because

Appellants chose to represent CMC in Texas, they cannot now seek to avoid

the consequences of that choice. The evidence demonstrates that Appellants’

contacts with Texas were not random, fortuitous, or incidental and that a

substantial connection exists between Appellants’ purposeful contacts with

Texas and the operative facts of CMC’s legal malpractice claim. See id. at

449–50; Cartlidge v. Hernandez, 9 S.W.3d 341, 348–50 (Tex. App.—Houston

[14th Dist.] 1999, no pet.).

      Finally, we analyze whether the trial court’s assertion of jurisdiction over

Appellants comports with “traditional notions of fair play and substantial

justice.” In making this determination we consider the following factors: (1)

the burden on the defendants; (2) the interests of the forum state in

adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and

effective relief; (4) the interstate judicial system’s interest in obtaining the most

efficient resolution of controversies; and (5) the shared interest of the several

states in furthering fundamental, substantive social policies. Asahi Metal Indus.

Co. v. Superior Court of Ca., 480 U.S. 102, 113–16, 107 S. Ct. 1026,

1033–34 (1987); Burger King, 471 U.S. at 477, 105 S. Ct. at 2184;

                                         22
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct.

559, 564 (1980).       Only in rare cases will the exercise of jurisdiction not

comport with fair play and substantial justice when the nonresident defendant

has purposefully established minimum contacts in the forum state. Guardian

Royal Exch. Assurance, Ltd., 815 S.W.2d at 231; see also Schlobohm v.

Schapiro, 784 S.W.2d 355, 358 (Tex. 1990) (stating that because minimum

contacts analysis encompasses so many fairness considerations, it has become

less likely that exercise of jurisdiction will fail fair-play analysis).

      Here, Appellants argue that Texas does not have a compelling interest to

supply a forum for resolution based again on their characterization of CMC’s

claims as ones for breach of a contract entered into in Colorado between

Colorado residents, that the evidence is located primarily in Colorado, that their

offices are in Colorado, and that it would be burdensome for them to submit to

a foreign state’s judicial process. As we have previously stated, CMC pleaded

a cause of action for legal malpractice.          And the State of Texas has a

substantial interest in this litigation because Appellants agreed to represent

CMC, knowing that the proceedings were based in Texas; the complaint had

issued from the Fort Worth office of the NLRB; and the alleged unfair labor

practices occurred in Texas. Appellants, moreover, proved their willingness to

travel to Texas when they appeared on CMC’s behalf for the NLRB hearing.

                                          23
Appellants’ arguments that they lack a physical presence in this State and that

it is inconvenient for them to attend a trial in Texas have been rejected as

grounds purportedly negating specific jurisdiction.      See, e.g., Cartlidge, 9

S.W.3d at 350 (citing Burger King, 471 U.S. at 475–76, 105 S. Ct. at 2174).6

Other than the arguments and positions we have addressed, Appellants have

not identified any considerations that would render jurisdiction in Texas

unreasonable or that provide them with a vested right not to be sued in Texas.

See Burger King, 471 U.S. at 477, 105 S. Ct. at 2184–85. We therefore hold

that the trial court’s exercise of personal jurisdiction over Appellants would not

offend traditional notions of fair play and substantial justice. See Tempest

Broad. Corp., 150 S.W.3d at 877; Jackson, 122 S.W.3d at 451; Cartlidge, 9

S.W.3d at 350; Rowland & Rowland, 973 S.W.2d at 436.

      Inferring all fact findings necessary to support the judgment that are

supported by legally and factually sufficient evidence in the record before us,

and viewing all of the evidence considered by the trial court in ruling on the

special appearances, we hold that as a matter of law the facts do not negate

the trial court’s exercise of specific jurisdiction over Appellants.   See BMC




      6
       … While the inconvenience of the forum is to be considered, it is not a
constitutional obstacle to the assertion of jurisdiction if due process is
otherwise satisfied. Cartlidge, 9 S.W.3d at 350.

                                       24
Software, 83 S.W.3d at 794–95. Accordingly, we overrule Appellants’ first

and second issues.

                               V. C ONCLUSION

     Having overruled Appellants’ three issues, we affirm the trial court’s order

denying their special appearance.


                                                 SUE WALKER
                                                 JUSTICE

PANEL A:   CAYCE, C.J.; GARDNER and WALKER, JJ.

DELIVERED: July 3, 2008




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