*1 599 ju- 2174). specific to exercise 482, required availment” at S.Ct. King, U.S. peti- grant we Accordingly, not does risdiction. Though agreement the IRA here hearing oral and without Cali- for review require disputes litigated that tion Tex.R.App. 60.2(d), 59.1, P. fornia, when provision, this argument, choice-of-law Griego initi- appeals’ with the fact that the court of combined verse Resources, Griego’s which IRA court to consider ated contact with that remand argument. all of its services within Califor- jurisdiction rendered general nia, IRA Resources demonstrates jurisdiction. anticipated Texas
never contacts, not de
The test is minimum record, contacts, on this
minimus
Griego would fail even the latter test.
sum, pur- IRA has not because Resources оf privilege itself of the
posefully availed Texas, it falls conducting UNIVERSITY, Petitioner, activities within BAYLOR min- short of Fourteenth Amendment’s subject to test and is imum-contacts COLEY, Respondent. Betty A. jurisdiction. today holding Our specific analysis factually sim- resembles the No. 04-0916. case, Fourteenth of Appeals’ ilar Court of Supreme Court Texas. Resources, Inc., Meader v. IRA a decision post-dated the decision of the court Argued Oct. 2005. Meader, appeals the instant case. In April Decided 2007. here, accepted IRA ac- Resources $50 fee, opened self- count-initiation Meader’s IRA,
directed and mailed him ac- periodic statements, yet
count court held as we those constitu-
do: incidental contacts are
tionally at insufficient. S.W.3d persists
There one additional issue: subject gen- IRA
whether Resources jurisdiction. The court of
eral
rejeсted general jurisdic- specific both defendants, as to but it did
tion the other Re- general jurisdiction
not reach for IRA ju- specific because it found that
sources
risdiction applied. S.W.3d
Because IRA Resources avers Texans, twenty-five
maintains accounts analysis that court for an
we remand to jurisdiction, which Fourteenth
general in Meader found was Appeals
Court
lacking.
plainly that IRA ac-
We conclude Resources’ “purposeful
tions do not constitute the
600 Barrett,
Roy Smith, L. Stuart and John Powell, Ñaman, Howell, Andrew Smith & Lee, L.L.P., Waco, for Petitioner. McNamara, LaNelle L. LaNelle L. McNamara, P.C., Waco, Respondent. for Justice opinion HECHT delivered the Court, in which Chief Justice O’NEILL, JEFFERSON, Justice Justice BRISTER, MEDINA, Justice Justice GREEN, joined. and Justice WILLETT Respondent Betty A. contends employer, petitioner Bay- her former University, by reassigning lor respon- effectively sibilities to others and thus de- her, moting breached her contract and resign forced her to from her tenured fac- ulty position. The trial court rendered judgment Baylоr jury’s on the based failure to find that had been con- structively discharged, defined charge as “makfing] conditions so intoler- able person reasonable in the em- ployee’s position compelled would have felt resign.” The court of reversed remanded, holding Baylor should have been asked whether constructively discharged Coley by “ ‘makfing] a material posi- tion to which was entitled under [she] ”1 contract.’ pre- We conclude that sented no evidence breached her contract and that properly charged discharge, on constructive and we therefore judgment reverse and render Baylor. 2004) (1906)). (Tex.App.-Waco
1. 147 S.W.3d Tex. 91 S.W. Co., (quoting Cigar Kramer v. Stores Wolf University, inad- and the Coley in 1972 a librarian administration hired accept libraries, Armstrong ability supervision, equate in one of its (the in materials purchasing “Li- Browning Library poor “ABL” or recommendations, convince attempts to brary”), and in letter 1981 informed her *3 are an you the and granted that she been tenure on dealers booksellers had Li- the purchasing agent for faculty Library. approved of evidence the to inability unwillingness or Coley given brary, was rank of and shows the Bay- projects. According complete assigned to “Assistant Professor”. personnel policy lor’s manual: that she would Sharp Coley informed experi- assurance an Tenure means to given op- be an terminated but would be may faculty enced member that he/she He also told her portunity improve. to in expect to continue academic a raise his/her that she would not position adequate unless cause for dis- re- salary promotion, and that her hearing, missal is demonstrated a fair Library those of other sponsibilities, like due following procedures established of staff, im- would be reviewed. “Effective process. mediately continuing indefinitely,” he and concluded, “you supervisory have no re- Court, us Coley In her brief in this tells public responsibil- no service sponsibilities, responsible that she and acquiring was ities, budgetary responsibilities.” and no materials, the col- preserving presenting any not clear of these were It is whether to the lection students and others inside her she first part responsibilities of when outside, Library as participating well as tenure, taken or whether she had received associations, professional doing schol- re- them on while the director’s arly research. of the When director vacant. mained Library Coley left in for the applied allowed to some and was assume President, Baylor’s Coley complained to Roger of its until Dr. Brooks was duties who her she Reynolds, Dr. Herbert H. told hired as director pursue hearing could a formal Committee, she University Grievance Coley’s relationship with Brooks was August Brooks never did. In thought discordant. Brooks her to be Coley’s position from changed the title of abrasive and difficult to work with. Dis- to “Librarian” “Research Librarian” performance, satisfied with her he reas- duties, her which met with to discuss him- signed responsibilities some of her to “very to agrеed important” both were April self or her In co-workers. Library. in Octo- operation of the But sabbatical, Brooks while ber, Sharp: she wrote superior, Avery Sharp, wrote to his Dr. Librarian, years my in-
University During past six relation- detailing to Sharp, Brooks has deteriorated adequacies. ship Two weeks later Dr. turn, an I is now wrote such extent that believe he to follows: Library. from trying to remove me history
It of low appears that there is know, me to you he has demoted As work, quantity quality self-serv- I sub- librarian” and am now “research behavior, insulting rude behav- you. monthly reports He has ject ABL staff ior toward and members every responsibili- me almost stripped year af- public, excessive absences Library.... I ty once had outbursts, year, repeated angry ter this are Director, doing for- I believe reasons his public criticism conflict Librarian, strong personality caused University the central mer us, between rather than the result of agreement faculty tire between the mem- my part. misdemeanors on University”. ber and the Neither the at- tachment complete nor the manual are She concluded that she was “anxious not to record; only portion of the manual cause trouble” and that she “wish[еd] regarding continue working Sharp quoted here.” When the terms of tenure is sponded that she copy pertinent part. should send a of her above in Brooks, replied: letter to May, Coley told Brooks that she I copy have not sent a to Dr. Brooks might need to disability take leave. I am because anxious to avoid further passed request Brooks on to Sharp, Things confrontation. have much been who wrote that he would need a *4 better in recently Library, the and I physician statement from her regarding My wish them to continue. letter was diagnosis prognosis. July, Co- solely put intended my record ley replied that views of the past events few months. question is now moot. You will be pleased planning to learn that I am Two weeks later Brooks issued a memo Baylor, stating early take retirement from that had been named “Re- finally search Librarian” I capitulated and would be because have to the decade of constructive dismissal tactics responsible conducting for research on suffered, I topics and harassment have culmi- pertaining to the collection’s re- sources, cataloging newly nating year during my last sabbatical in ac- quired non-print and non-manuscript your April demoting letter of 28 me items, cataloging of archival material my position from ... that I as Librarian pertaining early to the collection’s histo- twenty-one years, plac- had held for ry, and the clippings maintenance of the punitive me on what amounts to file. probation, but I am mar- because to be Vancouver, in ried and live British Co- This was the he had discussed with her in August. lumbia. Coley signed one-year a new contract A days few later wrote Brooks to she 15, 1994, April dated continu- formally request retirement: ing her at the rank academic of “Assistant that I have mixed appreciate You will Professor” for the 1994-1995 academic ABL, which leaving the emotions about year. Although all of claims ac- twenty-two years for has been past prior crued to the 1994-1995 academic and, my in- professional the center of year, none of the annual govern- contracts deed, my personal much of life. Howev-
ing prior years were introduced into evi- er, pressures and stress I view of dence; the 1994-1995 contract does not decade, experienced past have over the claims, govern Coley’s repre- is at best my sabbatical leave in especially since priоr sentative of the annual contracts. only I anticipate can with relief Regardless, neither the 1994-1995 contract happy my future in new productive granting Coley nor the 1981 letter tenure I have al- situation and environment. any description contained of her ways myself in the inter- conducted best responsibilities. The 1994-1995 con- ABL, contract, Library and the will tract ests of stated that the a referenced attachment, always special place my have a affec- Baylor University and the Policy Personnel Manual “contain the en- tion. be in- severing tenure contract and
I am also аmbivalent about my association Univer- structed long in so sity, which has treated me well from the you if find and believe only I ways. that because
many regret Betty Co- evidence promotion I rank of was denied duties, by Baylor’s as ordered ley’s Professor, for ineligible Associate I am Avery Dr. Roger Dr. Brooks and agents Emeritus status. Coley to required Betty take Sharp, position, or one substantial-
subordinate and duties from ly different its work tenured, position for which she was you you may Thank role whatever Betty find you should then played [arrangements making have wrongfully constructively and dis- my possible. I should retirement] position. frоm her charged tenured kind- acknowledge also like the other during your have you nesses shown me Instead, the court the follow- gave tenure as Director of ABL. ing question liability: and instruction on Baylor University constructively Did retired, April after Nine months *5 Betty Coley? Brooks, 1995, Coley Baylor, sued and alleged that defendants Sharp. She to employee An is considered have discharged employer an been when Coley’s rights privi- circumvented and member, makes conditions so intolerable that faculty as a tenured and leges person employee’s po- in the intimidate, reasonable threaten, and undertook to compelled to re- sition would have felt Coley in an her to harass effort to force sign. and, employment; finally, leave her did not position,
when she abandon her trial jury “no”. The court answered effectively from her removed her Bay- the verdict rendered on through of “re- faculty position guise only lor, Coley as to appealed, and .... unrea- Ultimately, definition” Baylor. harassing Defen- sonable and conduct of rejected Coley’s of appeals The court early Coley dants ... did force to take a jury that entitled to contention she was from the thаt retirement clerical contract, noting breach question on fac- she was forced to assume after her theory in her that her [of she “states brief ulty position, research the aca- with recovery] her con- Baylor breached thereto, rights demic attendant was constructively discharging her” tract .... defined Baylor that con- “agreeing] with “ This removal’ vested [her] ‘defacto Baylor construc- trolling issue whether asserted, rights”, tenure “constituted But the discharged Coley.”2 court tively of the con- material and substantial breach given have been that the should held conferred and oth- rights trаctual on construc- Coley’s requested instruction faculty University.” at Baylor er tenured instruction, discharge.3 That tive concluded, evidence, “a correct state- court reflects At the close employer’s an regard law with Coley’s requests that ment of court refused an contract under Baylor rights asked whether breached Id. at 571. modify employee’s functions, an position”, specified and the with her trial court’s instruction did not.4 either in its terms or any with reference to other Nor materials. does the 1981 letter The court relied on our decision granting specify her tenure her functions. There, Cigar Kramer Stores Co.5 Wolf “ points Reyn- instead to President agreed one in writing Kramer ‘to faithful testimony faculty olds’s that a tenured ly diligently general act as manager of at member would be entitled to Cigar Dallas stores of the Union “general continue to do the kinds of Stores Company, headquarters Dallas, things” in his field that he was doing when performing such duties as are usu ally upon given entailed he was tenure. But there general manager un is no der like agreed circumstances’ ”.6 Kramer evidence that did not continue to do Cigar’s the title “chief clerk” of Union “general things” kinds of she had done only store, Dallas and when two smaller years, when tenure. Over added, managed stores were he all three.7 awhile, changed work as she assumed for But when Cigar Union instructed him to then of the duties of relinquished, some stores, move to the smallest of the three director, assigned and then was different which he believed could not serve head as positions Library duties were as quarters business, for the he refused and Neither her tenure letter nor redefined. discharged.8 He sued for breach of year academic contract re- 1994-1995 contract, alleging that Cigar Union had “Librarian”, fer to her and her effect removed him general manager title, Librarian”, was not new “Research him reduced to little more than a significantly agreed different. She Cigar tobacco salesman.9 Union answered assignments as “Research Brooks that her transferred, only Kramer had been *6 “very important” Librarian” were not demoted. We held that the evidence operation Library. the Even if her of present was “sufficient to the issue wheth substantially work over time and in varied er or not the defendant broke the contract desired, the clerical than she end was more by requiring plaintiff performance of of the not there is no evidence that it was the duties substantially different from those the work of an Assistant Professor. On agreed which he had to perform”.10 that, in contrary, the evidence establishes policy Kramer, Baylor’s personnel the words of Coley alleges
Like manual, in academic [her] in she “continue[d] demoted breach of her contract. position”. But while there is evidence that her re altered, sponsibilities evi were there is no Kramer, Coley alleg also Unlike required
dence that ever her to another, of contract: es different breach perform any job than Pro other Assistant fessor, constructively discharged— rank she was at which she was tenured is, terminated that she was effect specified and which was in her last annual to noted, by being without forced previously Coley process contract. As did due This, too, a any resign. not introduce into evidence contract would be breach of 4. Id. 8. Id. (1906).
5. 99 Tex.
We need not decide whether there was
so,
if
whether
preserved
Union Pacific
any evidence
its
constructively
was
dis-
complaint that the trial court
chаrged
erred
support
submission of the issue
fusing to
proposed
submit Union Pacific’s
since the
answered the
instruction.”
question
“wrong” Trading Company as determined this Plainsman we Court. Citing considered a Texas Rule Civil Procedure situation similar to that be- Williams, Union fore us now. urged Railroad Co. v. Plainsman Pacific (Tex.2002) 169-70 trial court in refusing erred to submit what Crews, Trading Plainsman Co. v. 898 we determined was an erroneous instruc- *8 786, (Tex.1995), Baylor S.W.2d ques- question tion. The preservation of er- Coley preserved tions whether Instead, error as to ror was not addressed. refеr- we the trial proposed court’s jury instruction enced Rule 278 our determination: “The by “bringing] to the trial requested court’s atten- incorrectly instruction stated tion” her contention that disagreed she the law and properly was thus refused. proposed with the instruction timely (requiring See Crv. P. 278 that re- Tex.R. submitting proposed quested instruction questions, which definitions and instruc- substantially contends was not cor- tions be tendered to the court in substan- form).” directly tially rect because it Trading commented correct Plainsman Co., weight of the evidence. at 791. S.W.2d Placencio, proposed In we considered statеment refer- Our Union Pacific theory. encing preservation regarding of error could be read issues defensive implying requested that a refused to submit the is- court substantially must be correct error reversed. In sues. The court preserved appellate be review. Rule by controlled noting that the situation was here, provides, as relevant “[f]ail- is now found Rule language which ure to submit a definition or instruction we said: shall not a ground be deemed for reversal by Tex.R. This situation is controlled substantially of the unless a cor- provides P. 279 which that the trial Crv. rect definition or instruction has been re- court’s failure to submit an issue shall quested in writing by and tendered of the ground not be a for reversal party complaining judgment.” was tendered judgment unless issue regard to error preservation, Rule 278 substantially Is- wording.... correct conjunction must be read with the other Allied, by sue No. as tendered procedure. rules of civil Rule 272 requires affirmatively incorrect because it as- proposed jury charge that the given sumes material controverted facts....
writing parties attorneys or their Because the issue as submitted Allied with a reasonable time for them to assumed the truth of material contro- present objectiоns examine and before the facts, verted it would have constituted charge is read to jury. pro- Rule 272 weight comment on the of the evidence. objections vides that present- “[a]ll not so waived,” ed shall be considered as but the require
rule does not proposed comment, spite If in of an implied substantially instructions be correct in or- Allied’s Issue No. 4 could be deemed der to avoid waiver. timely Because correct,” “substantially the trial court presented proposed her instruction accord- would have been forced to choose be- ing preserved to Rule error for (1) submitting possibly tween it and be- appellate review to determine if in- appeal by reversed in the event of presented struction she substantially Placencio, refusing being it and so, correct and if whether the trial court appeal by versed in the event of Allied. in refusing erred to submit it. See TEX. impose upon We will not such a dilemma 278; Co., R. P. Trading CIV. Plainsman judge. duty a trial It was Allied’s present judge with an that was issue I agree proposed that the affirmatively not incorrect. hold We instruction is not correct be- that the trial court’s refusal to submit an cause assumes a controverted matеrial affirmatively not incorrect issue does fact and would have been a direct com- justify reversal. weight ment on the of the evidence. See Id. at 21-22. (“The TEX. R. P. 277 CIV. court shall not Baylor constructively claimed that charge in its directly comment on the ”). discharged by materially and substan- weight requested of the evidence.... A tially breaching contract. affirmatively instruction that is incorrect is “substantially granted She claimed that when she was correct” as that term is *9 in pro- particular used in Rule that tenure she was tenured requirement 278’s posed questions Baylor of librarian that position and instructions be sub- de stantially rights correct. her tenure when it See Placencio Allied removed facto (Tex.1987). Int’l, 20, 21 changed Indus. her title and duties. de- properly particu- discharge on constructive did not Coley nied that was tenured theory recovery. According Coley’s submit position lar of librarian. in a Coley granted only tenure 570-71. Baylor, was S.W.3d change her title and mod- general field and Coley challenge does not the court of tenure, not erode her ified duties did that the trial court appeals’ determination contract, or result breach by refusing to submit her did not err discharge. in a constructive jury question. рroposed breach of contract charge proposed the trial court’s When proposed question Examining both her object- parties, Coley presented was proposed instruction on constructive dis- proposed ed to the court’s constructive however, illuminating as to her charge, it “does not discharge instruction because any her case. Neither contained view of case, particular nor fit the facts of this jury determining to use standard for argue to even plaintiff does it allow the discharge other than instruct- constructive ... case and there рarticular facts of this jury change that if her duties no instruction that relates to construc- position her to take a subordinate required there is tive a situation where work substantially different its one contract a contract of the nature “the for which shé and duties from that the requested case.” then this constructively tenured” then she was was instructed, jury be But, discharged. assumed that she both conjointly “position” that instruc- employed either ... in a tenured as was instruction, ques- from that “field.” The separately opposed tion or to a tenured position versus tenured to read as follows: tion of tenurеd disagree- was the source serious field you if find and You are instructed that trial. parties during ment between the believe from the evidence was Coley urged employed she duties, or- Betty Coley’s particular in a librarian tenured Roger Dr. by Baylor’s agents, dered duties; Baylor asserted she particular Sharp, required Avery Brooks and Dr. that there was not. contended was po- Betty Coley to take subordinate the matter because dispute no on factual sition, or one different admitted the school’s Baylor’s President posi- in its work and duties from rights tenure were for policy was that tenured, then tion which was pointing to countered position. Betty was you should find testimony Baylor’s from President wrongfully dis- constructively and an individual certain tenure entitled position. her tenured charged from field, in a responsibilities kinds of added). (emphasis posi- to a certain not entitle someone did to submit her judge trial refused The there was evidence on both tion. Because charge The requested instruction. issue, Coley’s requested both sides pro- court’s with the submitted to requested jury question Jury Question and instruction posed Coley’s posi- “tenured which referred opinion. set out in the Court’s con- the truth of a material tion” assumed Question and the “No” to answered affirmatively fact and both were troverted take-nothing judgment. court entered incorrect. noted that The court of con- Coley submitted The instruction “are not question and instruction proposed implied comments more than the correct,” judg- tained but reversed entirely Her in Placencio. addressed the evidence trial court’s instruction ment because *10 directly substantially a correct instruction was requested instruction assumed in her favor. writing by Coley. material controverted matter and tendered quested given If the court had instruc- Baylor’s I agrеe She did not do so. tion, effectively only question left for Coley’s pro- first issue. assertion its jury would have been whether posed substantially was not uncontroverted her duties re- correct because it contains a direct com- taking sulted in her position subordinate weight ment on the of the evidence. See or one different its work 277; Placencio, 724 Tex.R. Civ. P. S.W.2d position and duties from her as librarian. at 20-21. found, jury If so then the instruc- required tion “should find Betty Coley constructively
wrongfully discharged from her tenured position.” Had the trial court
[librarian] Coley requested, the instruction its by jury argument
effect is demonstrated
which her counsel could have made based
on the instruction: LOW, Stephen Robert D.O. and Smith, M.D., Petitioners, and gentlemen,
Ladies we have been arguing many months Betty Coley now over whether was em-
ployed position and tenured in her Thomas J. HENRY and the Law librarian, or Baylor employed whether Henry, of Thomas Offices J. and tenured her in an area or field so Respondents. job could move her from No. 04-0452. Now, last, job. at judge has told instructions, Baylor, you, in these Supreme Court of Texas. that she was tenured in position her So, librarian. when moved her Argued Feb. from that tenured librarian job reduced duties to those of a April Decided subordinate to a moved her
position substantially from that different position, they
of her librarian breached contract and construc-
tively discharged her. court stated that by refusing
contended the trial court erred
to submit her instruction. issue, considering Coley’s
569. In howev-
er, court said that contended incorrectly
trial court defined the term discharge”
“constructive that the held
constructive instruction did not Coley’s theory jury.
properly submit
Id. at 571. The reversal was error precludes
because Rule 278 reversal unless