Michael Drew, Government Energy Management, LLC v. Elumenus Lighting Corporation, Inc.
05-13-01551-CV
| Tex. App. | May 7, 2015Background
- Elumenus, a Texas LED-lighting company, sued Michael Drew, Government Energy Management, LLC (GEM), Evolving Solutions in Energy, LLC (ESE), Donovan Cunningham, and Access Federal Business, LLC (Access) asserting contract, tort, trade-secret and related claims arising from alleged interference with government (UNICOR) contracts and misuse of UL certification/listing.
- Elumenus alleged ESE/Drew conspired with Elumenus employees and former officer Rainbolt to divert contracts, list ESE on UL certifications without Elumenus’s name, and use Elumenus’s confidential information; Trout (a former Elumenus employee) allegedly provided proprietary info to Drew/GEM.
- Access contracted with Elumenus; the contract contained a Texas choice-of-law clause and a disputes clause requiring mediation in Dallas and designating Collin County, Texas, as exclusive venue; Cunningham signed for Access as its authorized representative.
- Appellants filed special appearances arguing lack of personal jurisdiction; Elumenus filed a third amended petition two days before the special-appearance hearing; appellants moved to strike but the trial court did not rule and denied the special appearances.
- On appeal, the court addressed (1) whether the late third amended petition could be considered, (2) whether Access and Cunningham consented to jurisdiction under the contract, and (3) whether Texas courts had specific jurisdiction over Drew, ESE, and GEM.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could consider Elumenus’s third amended petition filed two days before hearing | Elumenus relied on the amended allegations to support jurisdiction and venue | Appellants argued the amendment was untimely, surprising, and prejudicial and should be struck | Court applied Goswami presumption (late pleading treated as filed); trial court presumably considered it; denial of motion to strike was not error |
| Whether Access and/or Cunningham waived special appearance by consenting to forum selection/mediation clause | Elumenus argued the contract’s dispute clause (mediation in Dallas and Collin County venue) demonstrates consent to Texas jurisdiction; injunctive-relief exception allowed immediate suit | Access and Cunningham argued the clause required mediation before suit and therefore did not consent; Cunningham also argued he signed only as Access’s agent so clause should not bind him personally | Court held Access consented to Texas jurisdiction because the contract permits immediate suit when injunctive relief is needed; Cunningham signed only in representative capacity so enforcing the forum clause against him personally was unreasonable — Cunningham’s special appearance sustained |
| Whether Drew, ESE, and GEM had sufficient contacts with Texas for specific jurisdiction | Elumenus argued Drew/ESE/GEM solicited and coordinated with Elumenus personnel in Texas, recruited Trout, accessed proprietary information, and interfered with Texas contracts | Drew/ESE/GEM argued they are South Carolina/Washington D.C. entities/persons without sufficient Texas contacts or purposeful availment | Court presumed factual disputes resolved for plaintiff; found allegations (recruiting Trout, accessing proprietary info, coordinating conduct affecting Texas contracts) constituted doing business and purposeful availment supporting specific jurisdiction; special appearances denied |
| Whether Elumenus’s claims against Cunningham should be dismissed for lack of jurisdiction | Elumenus argued Cunningham was the Access representative and thus subject to jurisdiction via the contract | Cunningham argued he signed solely as Access’s agent, lived outside Texas, and lacked minimum contacts | Court concluded Cunningham acted only as agent signing for Access and personal jurisdiction over him was lacking; claims dismissed against Cunningham |
Key Cases Cited
- Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801 (Tex. 2002) (standard of review for personal-jurisdiction fact findings and special appearances)
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (Texas long-arm statute and due-process limits)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (three-part purposeful-availment inquiry and relatedness for specific jurisdiction)
- Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005) (single-sale/contract generally insufficient for specific jurisdiction)
- Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223 (Tex. 1991) (long-arm statute interpreted to reach constitutional limits)
- Goswami v. Metro. Sav. & Loan, 751 S.W.2d 487 (Tex. 1988) (presumption allowing late-filed pleadings to be treated as filed when trial court considered them and no sufficient showing of prejudice)
- Ward v. Prop. Tax Valuation, Inc., 847 S.W.2d 298 (Tex. App.—Dallas 1992) (officer signing contract in representative capacity not personally bound)
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (U.S. 1945) (minimum contacts and traditional notions of fair play and substantial justice)
- Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (U.S. 1984) (distinguishing general and specific jurisdiction)