406 S.W.3d 723
Tex. App.2013Background
- Three Shuttle Parties sue IGuide Tours, LLC and individuals Cook and Eshetu for breach of contract, fiduciary duty, and misappropriation of trade secrets; they seek injunctive relief and TRO/PI.
- IGuide Tours is a Delaware entity; Cook and Eshetu live in Virginia; the Shuttle Parties allege a non-compete and misappropriation related to OnBoard Tours.
- IGuide allegedly marketed services in Texas via a website, with actions tied to Texas through a conspiracy with Cook and Eshetu; the trial court granted IGuide’s special appearance.
- The trial court’s order dismissed all claims against IGuide for lack of jurisdiction and the injunction ruling narrowed relief, particularly denying competitive-injunctive relief.
- The en banc court held (1) lack of personal jurisdiction over IGuide was correct, (2) the complaint about the form of the special-appearance order was not preserved, (3) the temporary injunction ruling was not an abuse of discretion.
- The opinion also discusses error-preservation rules for affidavits showing the affiant’s basis of personal knowledge and adopts a rule requiring trial-court objection and ruling to preserve such complaints.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of lack of personal-knowledge defect | Shuttle Parties argue lack of personal knowledge is a defect in form. | IGuide contends issue is preserved via the motion and affidavit. | Waived; defect treated as form, require objection and ruling to preserve. |
| Content of Habte affidavit to negate jurisdiction | Habte’s affidavit lacks basis for personal knowledge. | Affidavit sufficiently verifies facts stated. | Insufficient; Habte’s affidavit fails to show basis of personal knowledge. |
| Form of the Special-Appearance Order | Order misstates relief or lacks basis for dismissing with prejudice. | Relief sought by IGuide was granted; form preserved. | Not preserved for review; issue overruled. |
| Temporary injunctive relief and irreparable harm | Shuttle Parties suffered irreparable harm from competition. | Damages could be calculated; no irreparable harm shown. | Trial court did not abuse discretion; injunction denied in part. |
Key Cases Cited
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (Texas long-arm due process with minimum contacts standard)
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (U.S. 1945) (establishes minimum contacts for jurisdiction)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (three-prong purposeful-availment test for specific jurisdiction)
- Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010) (affidavits lacking personal knowledge may be legally insufficient; preservation rules clarified)
- Kerlin v. Arias, 274 S.W.3d 666 (Tex. 2008) (affidavits must show basis for personal knowledge; defect substantive in later precedent)