Holk v. USA MANAGED CARE ORGANIZATION, INC.

which he produced ment the crime of Andy Holk Arthur HOLK d/b/a Ann. charged. Tex. Pen.Code

stands Motion, Appellants, Pleasure 8.06; at 257. Roiphe, supra, § see also that requires The rule of law itself only those who are some punish State ac- responsible for their

personal sense MANAGED CARE ORGANIZATION, at 298. Roiphe, supra, tions. See

INC., Appellee. entrapment that the de We hold 03-03-00477-CV. No. in this case and

fense was available produce his burden to some appellant met Appeals Court show prima evidence to establish a facie Austin. offered no ing of the defense. The State to contradict the assertions that evidence July in this methamphetamine discovered belonged agent case to a law enforcement agent directly it in placed

and that appellant’s pants pocket when their sexual interrupted, arranged by

encounter was agent. Although we find distasteful alleged conduct of law enforcement case, we rest our decision on the fact failed to the State meet its burden beyond a disprove entrapment reasonable proper remedy doubt. The when disprove fails entrapment State de pretrial hearing fense at a is dismissal of Taylor, prosecution prejudice. Accordingly, 886 S.W.2d at 266. we re judgment verse the of conviction and order prosecution prejudice. dismissed with Justice PATTERSON concurs judgment only. Clark, K. Thomas & Win-

Barry Bishop, ters, Austin, appellants. for Minter, Davidson, Joseph & William C. Austin, Thornhill, P.C., appellee. for LAW, B.A. Justices Before Chief Justice SMITH and PATTERSON.

OPINION SMITH,

BEA ANN Justice. opinion and original our We withdraw February and substi- judgment of following in which we opinion tute the rehearing. for grant the motion Organization, Managed Care Inc. wanted to use again. the boat USA con- (USA) against filed suit in Texas Alabama tracted to use the boat 1999 but not in Hoik, residents Arthur Hoik Andy 2001, Andy again Hoik called doing individuals business as “Pleasure Bogle in Austin to ask if USA wanted to Motion,” failing agree- to fulfill their agreed use the boat. USA and used to provide ment the use of the boat “Plea- “Pleasure Motion” three or four times in sure Motion” to fishing trips. USA for $25,000. paying a total of Again special appearance Hoiks filed a 2002, Andy Bogle Hoik called Austin to claiming they that because are not resi- solicit USA’s use of the boat. Hoik asked engage dents of Texas and do not in busi- $25,000 advance, payment for a which Texas, in ness and because the activities payments USA sent. All of for the made the basis of USA’s claims did not use of the boat from were its bank account Texas, place subject take in they are not in Texas. fishing USA used the boat for a of Texas courts. See trip in days May one time Tex.R. hearing, Civ. P. 120a. After a $8,494.91. incurring charges of trial court special appearance. denied their bring interlocutory The Hoiks this appeal After the one in fishing trip May of that denial. Tex. Civ. Prac. & Rem. attempted USA several times to contact 51.014(a)(7) (West § Ann. Code Supp. Andy Hoik to schedule additional boat 2004). below, For the reasons set forth we trips. Receiving response, no sent a USA affirm the trial court’s denial of the Hoiks’ $16,505.09, Andy demand letter to Hoik for special appearance. $25,000 remaining the balance of pre- its payment for boat in use 2002. Still receiv- BACKGROUND response, against USA filed suit 1994, USA, In corporation a Texas Hoiks in County Travis for breach of con- Austin,1 principal place its of business in unjust tract and enrichment. The Hoiks entered into an agreement oral with the a special appearance, attaching filed affida- Hoiks, Alabama, of residents to occasional- stating they vits that are Alabama resi- ly use their boat the “Pleasure Motion” for dents, engage do not in in fishing trips. Andy Hoik operated the actively not in do solicit business father, Hoik, boat and his Arthur financial- regular do visit Texas on a basis. ly operation. backed It his son’s is unclear They giv- further averred the events contact; from the record who initiated the ing rise to the claim place did not take George Bogle, USA’s chief offi- executive Texas an Arizona because USA was com- cer, agreement probably testified pany at the time of the initial contact and Pensacola, Florida, place took and con- provided place the services took Ala- tinued until when this hearing bama. The trial court held a on lapsed. Andy pick up Hoik offered to special appearance, Bogle at which tes- Bogle guests anywhere and his on the Gulf presented tified and the Hoiks Coast, evidence picking up them once in Louisiana spe- affidavit. The trial court denied the Andy and few times Florida. Hoik called if Bogle appearance, Austin to ask USA cial and it is from this denial Arizona, headquarters 1. It is unclear the record whether USA but it moved its However, corporation during was a Texas at the time of the Texas sometime original agreement between USA and the the relevant actions here-the solicita- Hoiks' time, Hoiks. At that was a have been tion of USA's renewal business-USA corporation headquarters corporation headquartered Delaware with its in Austin. P.L.C., Clays, English China interlocutory Ltd. v. bring Hoiks their Thus, (Tex.1991). rely we appeal. Su- from the United States precedent on ANALYSIS courts, as and other federal preme Court decisions, to determine well as Texas Review Standard of jurisdic- personal of whether the assertion initial plaintiff bears the requirements with the tion is consistent allegations sufficient pleading burden Software, BMC 83 S.W.3d process. due within the bring a nonresident defendant long-arm statute. of the Texas provisions v. Mar Belgium, N.V. BMC Software a non jurisdiction over Personal (Tex.2002). A chand when is constitutional resident defendant assertion challenging defendant the court’s (1) are met: the defendant two conditions negate all must minimum contacts with the has established jurisdictional alleged by plaintiff. bases (2) state, juris the exercise Collection, Inc. v. Type American Culture notions of comports diction with traditional (Tex.2002). Coleman, (cit justice. play fair and substantial personal jurisdiction Whether a has Washington, Co. v. ing International Shoe law, question is a of over defendant 310, 316, L.Ed. 95 66 S.Ct. 90 Software, de novo. which we review BMC (1945)). that has A nonresident defendant However, at the trial court privi itself of the “purposefully availed” questions must of fact frequently resolve conducting business leges and benefits jurisdic deciding question before the contacts forum state has sufficient the here, When, tion. Id. the trial court (citing jurisdiction. Id. to confer findings does not issue of fact and conclu Rudzewicz, 471 Corp. v. U.S. Burger King appearance special sions law with its 462, 474-76, 105 2174, 85 L.Ed.2d 528 S.Ct. necessary support all the ruling, facts (1985)). should not be sub A defendant judgment supported by that are the evi random, for ject jurisdiction based on implied. dence are Id. at 795. When the tuitous, (citing or attenuated contacts. , appellate report record includes both the 475, 105 471 at Burger King U.S. records, however, and clerk’s these er’s 2174). findings not conclusive and implied are factual challenged legal be for analy contacts The minimum sufficiency. Id. types of refined into two sis has been jurisdic general jurisdiction-specific Personal Jurisdiction not contend that Because USA does tion. exists, confine jurisdiction we will long-arm general Texas statute author The jurisdiction. jurisdiction specific courts to exercise our discussion izes Texas the non Specific jurisdiction exists when a nonresident defendant that does over have been Prac. defendant’s activities in Texas. Tex. Civ. & resident (West to the forum and “purposefully §§ directed” Ann. 17.041-044 Rem.Code (West injuries arising 1997), litigation § The results Supp.2004). 17.045 activities. relating to those business” out of or language “doing broad at The Royal, 815 S.W.2d permits 17.042 the Guardian requirement in section ju analysis specific minimum contacts as far as the federal con statute to reach narrow, focusing on risdiction is somewhat requirements process of due will stitutional defendant, Assurance, among the relationship Royal Exch. allow. Guardian 774

forum, Id.; litigation. and the quash. states, Schlobohm to As properly spe- (Tex. v. Schapiro, 784 S.W.2d cial appearance is “for purpose of ob- 1990). “It quality jecting is the and nature of to the of the court over contacts, person defendant’s property rather than their or of the defendant on number, ground important party that is to the minimum- that such or property is analysis.” process contacts amenable to Type, American issued courts of this Tex.R. (citing Royal, Guardian State.” Civ. P. 120a. 11). hand, A quash, motion to on S.W.2d at 230 n. the other proper jurisdic- for objecting vehicle employs a three-part test to tional defects. Corp. Kawasaki Steel juris determine specific whether there is Middleton, (Tex.1985). diction: objected Because the Hoiks to personal (1) The nonresident defendant or for- jurisdiction, jurisdictional not to defects in eign corporation purposefully must pleading, they properly spe- filed a do some act or consummate some cial appearance. turn We now to an exam- state; transaction in the forum ination of whether the defendants were (2) from, The cause of action must arise subject to the of a Texas court. with, or be connected such act or Specific Jurisdiction transaction; and (3) assumption jurisdiction by The first Schlobohm prong re the forum state must not offend tra- quires that the Hoiks purposefully have ditional play notions of fail* and sub- done some act or consummated some justice, stantial being consideration Schlobohm, transaction in Texas. See nature, given quality, to the and ex- S.W.2d at 358. The relevant facts are that activity

tent of the in the forum Andy Hoik called USA telephone on the state, the relative convenience of the years times over four to solicit its parties, protection benefits and rental of the boat and pick offered to of the laws of the forum afford- state in up anywhere the boat along the Gulf ed the respective parties, and the Coast.2 equities basic of the situation. These facts are similar to those in Schlobohm, (citing 784 S.W.2d at 358 Rynone Manufacturing Corp. v. Repub Co., 340, O’Brien v. Lanpar 399 S.W.2d defendant, Rynone, lic Industries. The (Tex.1966)). requirements These en- Republic’s solicited business over sure that a nonresident will be “haled” into (Tex. 636, telephone. only as a result of intentional activi- 2002, App.-Texarkana pet.). no Howev ties, so that it is reasonable for the nonres- er, Rynone additionally in na advertised expect ident defendant call of a tional magazines. trade See id. Texas court. See Royal, Guardian 815 Rynone, parties’ relationship began 226; Schlobohm, S.W.2d at 784 S.W.2d at solicitation, via a telephone whereas here 357-58. parties’ relationship the initiation of the outset, reject

At the we USA’s is unclear. find in We this distinction argument juris that any significant, the Hoiks waived especially because the Hoiks dictional by failing defects to file a motion prior and USA’s arrangement had ceased prior arrangement parties, ing The USA’s renewal tele- business over the little, ending any, signifi- in bears if phone purposefully was at directed Texas. cance to the determination of whether solicit- (Tex.App.- 361-62 Pippin, renewed in and the Hoiks later writ). There, the out-of- soliciting Austin relationship by business over the a contract Pippin solicited state in Texas. telephone over the from Texas- a machine telephone to lease the con similarity is that important The Pippin also Id. at 361. Beechem. resident case were upon tracts sued each in Texas. to Beechem payments sent by the de telephone solicitation result by soliciting concluded The Court at 640 Rynone, 96 S.W.3d fendants. See perform- partially and Beechem’s business Republic (“Rynone purposefully called Pip- by sending payment, the contract ul and this lawsuit [] solicit its business privi- of the availed itself pin purposefully telephone timately traces back to activities within conducting lege call.”). “Here, Rynone The court stated: protections and invoking the benefits thus publication in a national trade advertised “Moreover, it its Id. at 361-62. laws. Republic over personally and solicited that the contacts certainly foreseeable purposeful telephone, an even more and that litigation, might result Texas tele advertising than in a act degree were to some citizens of this State at directory.” Rynone, 96 phone entering into by [Pippin] at put risk added) (citing Siskind (emphasis 639-40 performing or not performing the contract Educ., Inc., 642 v. Villa Found. it.” Id.3 (Tex.1982)). Rynone S.W.2d 434 light court made this conclusion In- court cited McGee v. The Beechem Co., court’s statement Siskind supreme in which Insurance ternational Life decision to advertise in Tex that “Villa’s held Supreme Court the United States directories, itself, in- to an sending act of that an insurer’s act is sufficiently purposeful is a contract a reinsurance sured in California Siskind, done Texas.” jurisdic- subject it to the was sufficient to added). (emphasis telephone-di If despite the tion of the California courts— advertising enough rectory Texas is or done having solicited insurer’s never own, if phone on its solicitation in California. any other insurance business purposeful” telephone- “even more than 2 L.Ed.2d 78 S.Ct. Rynone directory advertising, Beechem, then the (1957), cited in 223 personal court concluded that solicitation distinguish to at We are unable alone, telephone, is a sufficient over from those of the contacts here nature ly purposeful subjecting act the defen and McGee. Beechem jurisdiction. Ryn personal dant to propo- by the Hoiks for the Cases cited one, agree. 96 at 640. S.W.3d We a Texas simply contracting with sition that distinguish- not sufficient are resident opinion The Beechem Court TeleVentures, v. Interna- ju- Inc. personal able. supports also the exercise 900, Technology, 12 v. tional S.W.3d over the Hoiks. See Beechem Game risdiction arrange coverage the machine. Beechem deciding Pippin’s for actions were 3. After 356, (Tex.App.- sufficiently purposeful to exercise Pippin, for Texas it, However, writ). the Court noted other over the Court no Austin Pippin mail corre- contacts had with Texas: ques- jurisdictional already decided the had Beechem, payment spondence sent tion, aside. mentioning these contacts as an office, Pippin’s Texas mailed Beechem’s Moreover, total of all we find the sum See id. payment the transfer of the machine greater no or more in Beechem the contacts causing Pippin's its in- and and from purposeful those here. than agent Beechem in Texas to surance to contact vices, (Tex.App.-Austin denied), Inc., 908-09 pet. 730 (Tex.App.- plaintiff Texas-based TeleVentures Houston pet.), par- [1st Dist.] contacted and visited International Game put ties were into contact with each other Nevada, Technology in and ultimately the by party, a third after which the defendant parties signed agreements for Internation- by followed up sending a contract to the develop al Game to gaming systems some plaintiff; performed the contract was out- However, for TeleVentures. the contracts side of payment and was mailed to did not state party where either would Texas. The court held that the facts were perform its obligations. Communication similar to those in 3-D and refused to find occurred between jurisdiction. Id. at 730. Unlike states, Texas and representa- other but no cases, these directly Hoiks solicited tives of International Game ever came to USA’s business over telephone by call- Texas. This Court held that such actions ing its Austin offices three times by International did Game not amount to years to parties’ agreement. renew the sufficiently purposeful conduct. Id. at 910. though simply Even contracting contrast, By here the Hoiks had offered to resident, alone, with a Texas is not enough, perform the contract in picking Burger King, 478, 105 see at U.S. S.Ct. up representatives anywhere along 2174 here there are more intentional acts: the Gulf Coast repeatedly and had called active solicitation of USA’s renewal of Texas business to ask it to renew its rental business over the telephone, offering to agreement. coast, pick up along the Texas Electric, In 3-D entity a third —whose receipt of payment by the Hoiks drawn corporate identity the court refused to upon a Texas bank account.4 Prior negoti merge with purposes the defendant’s for ations, contemplated consequences, future initially solicited the con- —had contract, the terms parties’ Electric, tract with 3-D and the defendant actual dealing course of must be evaluated had general thereafter served as the con- in determining pur whether the defendant tractor and entered into the contract via posefully established minimum contacts phone negotiations plaintiff with the Burger King, within the forum. Co., Texas. See 3-D Elec. Inc. v. Barnett The oral contract Co., Const. 142 (Tex.App.- between USA and the Hoiks allowed USA n.r.e.). Dallas writ All refd con- performance demand in Texas. USA Trinidad, struction work was done presented evidence the Hoiks solicited meetings all were conducted outside of its business over the on three Texas. Id. The 3-D court said that “In separate perform occasions and offered to Beechem, clearly there were more contacts the contract in Texas. We conclude that with Texas than the instant case and this is sufficient to demonstrate that the ‘[njarrow thus the factual distinctions ... Hoiks purposefully consummated a trans swing process sufficed to the pendu- due Texas, ” action in and the Hoiks have not lum.’ Hoiks, Id. at 143. Unlike the the jurisdiction negated on this basis. defendant in 3-D Electric did not solicit contract; the we find this sig- easily satisfy distinction The facts the second Schlo- nificant. Similarly, Blair bohm prong Communica- because USA’s breach-of-con- tions, Survey Inc. v. Equipment SES Ser- tract cause of action is to related the office, Although dispositive, picked up not the record also Austin and that the boat had Andy indicates that Hoik ports. had been to USA's other at Texas may change of tial seek a soliciting Hoiks’ act USA’s business. inconvenience (breach- Elec., 706 3-D at venue. making action to act of of-contract related at 105 S.Ct. Burger King, 471 U.S. by initiating phone oral contract call to and omit- (emphasis added footnotes Beechem, Texas); at 361-62 ted). compel- a have not made The Hoiks (cause of action breach of contract for jurisdiction them case over ling to render from or was with arose related contacts unfair, hold that or and we unreasonable Texas because contract was solicited spe- properly the trial denied their Texas) McGee, (citing Hoiks’ overrule the appearance. cial We 199). S.Ct. sole issue. Regarding the third Schlo- CONCLUSION we prong, subjecting bohm conclude busi- The Hoiks’ solicitation of USA’s jurisdiction Hoiks to the of the the Texas occasions, on telephone ness over the courts does offend traditional notions offer the perform in addition to their justice. and play fair substantial Hav sufficiently pur- contract actively successfully and solicited poseful subject jurisdiction them to the continued business it is courts, the and over require not unreasonable to the Hoiks to notions of them does not offend traditional a suit defend based on them contacts with af- play justice. Accordingly, fair we Although quantity Texas. of the firm denial Hoiks’ the trial court’s may Hoiks’ contacts with Texas be mini special appearance. mal, qualities of those are contacts Siskind, substantial. See 642 S.W.2d at Dissenting opinion Justice inOnly rare cases will the exercise of PATTERSON.

jurisdiction not fair comport play justice substantial when the nonresident PATTERSON, Justice, P. JAN defendant has purposefully established dissenting. minimum contacts with the state. I to the unani- original, Because adhere Royal, at (citing Guardian opinion judgment mous on Feb- issued 477-78, 105 Burger King, 471 U.S. at 12, 2004,1 ruary respectfully dissent. 2174). nature of rela- purposefully Ignoring prior [W]here defendant who majority his tionship parties, has directed activities forum resi- between jurisdiction, prior seeks to it is irrelevant: “The dents defeat he concludes that ending present parties, must case compelling that the between little, any, if significance presence some other considerations bears soliciting determination render of whether would unreasonable. usually business over the Most such considerations USA’s renewal In a purposefully means directed at Texas.” through be accommodated short was agreement, on an oral finding jurisdiction unconstitutional. contract suit based is, authority ignoring example, potential For clash of the as this there is par- arrangement parties, forum’s law with the “fundamental the between the sub- here, where, policies” ticularly alleg- petition stantive social of another as the State each through renewed applica- agreement” be accommodated es “the was Further, that one year. determining the tion of forum’s choice-of-law rules. the ma- Similarly, claiming began, contract and another defendant substan- ended jority improperly addresses the merits of to if know we wanted to use the boat.” dispute. There is no allegation that Hoik either made a misrepresentation engaged or The sole argument basis of USA’s Rather, fraud. the sole allegation is that the has is that “Defen- the Hoiks perform did not under the dants have contracted in the state to do agreement to provide fishing trips and use parties located within this of the boat. Although state.” majority the suggests that the initiation of parties’ the relation- majority The recites that Andy Hoik ship “unclear,” is the only evidence in the called USA on the “three times record provided by was USA. presi- years over four to solicit its rental of the dent, George Bogle, testified that he en- boat and offered pick up USA in the tered into a “deal” in 1994 with anywhere the Hoiks along boat the Gulf Coast.” building finance of the boat “put record shows the following: Andy Hoik business,” [Andy] in and that the “original called USA once in once arrangement probably made in Pensa- boat, once in offering use of the cola.” dispute USA does not that the rela- agreed use; USA to its USA did not use tionship began with an oral agreement the boat in 2000. The arrangements Florida; made 1994 in the jurisdic- sole seemed to vary. paid USA Hoik allegation tional is that the Hoiks contract- periodically as it used the boat because ed “in this parties state with located within years “two ago he had not up.” shown this state.” Bogle “[t]hey testified that to pick offered you up coast”;1 anywhere gulf on the the Nor does allege USA “arrange- the actual trips originated boat one time in ment” ended as majority the recites. That Louisiana couple and “a or three times in prior arrangement the is relevant is clear Florida.”2 In prepaid the en- original petition the which describes $25,000, tire amount of but used the boat the nature of “Agreement”: the par- only days, once for three then sued to ties Agreement “renewed the year each recover the money paid balance of the since 1997 except for 2000 in which year which it did not receive services. Defendants’ services were not used.” added.) (Emphasis Bogle testified that If original irrelevant, agreement year alleged which the breach as majority, asserted ques- then the occurred, “Andy called and said he wanted tion we are called to answer is whether the majority goes 1. The interpret so far original agreement, as to or whether it was a term oral contract allowing any time. performance USA to “demand in Texas.” This appear does not Bogle in the record. testified jurisdictional alleged There are no facts “[t]hey pick both that you up any- offered to petition testimony regard- or contained in gulf "they where on the coast” and offered to addition, Bogle’s Arthur Hoik. In testimo- pick up anywhere me on the Texas coast at ny they that "I picked people up think have time,” any but that the Hoiks never did so. places along ... at might the Texas coast” be That the performed contract could have been relevant an general jurisdic- assessment of determinative; specific in Texas is juris- tion, not but is not relevant to USA's assertion of diction turns on actual contacts and conduct specific jurisdiction. Belg., See BMC Software Further, directed to Marchand, the forum state. because (Tex. N.V. v. 2002) the record (assertion does not demonstrate when the general jurisdiction re- "offer,” Hoiks made the we do have quires suffi- proof of "substantial activities” within cient pertained forum). facts to infer that this offer gen- USA does not contend that to use the boat in eral exists.

779 more to the the cannot without convert call in 2002—or three calls over single haled a Texas being if the entire of into four-year period expectation is the “purposeful considered —constitutes court. by privi- a of availment” nonresident the distinguishable facts are These the fo- lege conducting of activities within Corp. v. Rynone Manufacturing those required invoke rum state to the benefits Inc., Industries, 96 636 S.W.3d Republic Burg- state’s protections of the laws. But (Tex.App.-Texarkana pet.). Rudzewicz, Corp. v. 471 King er U.S. the Rynone, the court considered even 474-75, 528 105 S.Ct. 85 L.Ed.2d parties, of course business (1985) Denckla, (citing Hanson v. in the only that evidence finding “[t]he 235, 253, 1228, 2 1283 78 S.Ct. L.Ed.2d re origin parties’ record about the (1958)). jurisdiction is This to avoid based on lationship” telephone was a solicitation “random,” “fortuitous,” solely on or “atten- Rynone of the nonresident directed behalf not satisfy uated” contacts that would the forum' plaintiff Republic toward the the “doing of busi- process requirements due addition, Republic Id. at state. 639. ness” Texas. See Tex. Civ. Prac. & Rynone through of advertise was aware (West §§ Rem.Code Ann. 17.041-.044 placed publica in national trade ments (West 1997), § 17.045 Supp.2004); Guard- tions, each parties negotiated and the with Assurance, Royal Exch. Ltd. v. En- ian by telephone and facsimile other “several” P.L.C.,

glish 815 Clays, China Republic pro also communications. Id. (Tex.1991) (citing Burger King, that drawings in the forum state duced 2174). 475, 105 U.S. at S.Ct. The exercise they Rynone, where were forwarded proper of is the when Id. part a of the written contract. became “proximately contacts result from actions” prior negotia considered thus defendant, of the nonresident which create conse contemplated tions and future a “substantial with connection” the con along the terms of the quences, with Burger King, state. U.S. at the actual of parties’ tract and course And the “substantial connec- dealing, Rynone pur to evaluate whether tion” between the nonresident defendant posefully established minimum contacts necessary finding and the forum state within the forum. Id. by of minimum contacts must come about or conduct the action nonresident defen- case, very the origin Unlike “purposefully dant directed the fo- toward initi- parties’ Rynone relationship rum Id. state.” telephone ated solicitation of business. Thus, the lawsuit the court found process requires

Due that a defendant telephone originating “traces back” to this haled into a Texas court unless his be Rynone sought to business call in which do him should led activities have to reason- initi- Republic. Rynone Id. at anticipate ably being answerable here. relationship between ated Schapiro, Schlobohm through advertising tele- (Tex.1990) and the (noting quali- that “the not rest phone call. But did nature, fy, [the and extent nonresi- And, alone. al- telephone call on activity justifies a conclu- dent’s] majority acknowledges though expect sion that he should be called courts”). par- Here, Rynone distinguishable because single call from our “began via a relationship if we ties’ Alabama or the calls solicitation,” it be- they insignificant find arrangement, all of consider whole they agreement boat cause determine which led use of the outside here ended and started anew with a tele- will support alone in Texas phone call. courts to determine whether a breach has occurred.” Id. at 363. We went on to But it significant is relationship hold that the contacts of the nonresident— originated Texas, here outside of at a time “those that were related to the cause as when have been located in Ari- well as those that were unrelated —were zona, and prompted by any was not pur- quantitatively qualitatively and sufficient poseful solicitation of business in Texas. to make [the nonresident] answerable in It is because of relationship this that the alleged courts Texas on the breach arrangement entire parties must be of contract.” Id. considered here. majority’s conclu- sion that parties’ prior And that is question here: whether ceased 1998 and was later by renewed a the contacts of the nonresident quan- were telephone solicitation from the Hoiks is at titatively qualitatively and sufficient and odds with allegation petition its purposefully directed to this I forum. parties that the “have Agree- renewed the would hold that single call was insuffi- ment each year except since 1997 for 2000 cient: it did not form the basis for the year which Defendants’ services relationship were and allegation there is no not used” and that “Plaintiff has used the it was fraudulent or contained misrepre- Boat year each for parties and outings.” telephone sentations. Even the three calls four-year period over a do rise to the Rynone, here, As in and unlike the rela purposeful level of acts directed at the tionship between the in Beechem v. protec- state sufficient to invoke the Pippin, 686 S.W.2d 356 (Tex.App.-Austin tions and benefits of Texas courts. But 1985, writ), originated telephone with a even if single call in 2002 a “renewed” solicitation. But this Court did not find contractual relationship par- the origination call alone sufficient to con ties, juris- there is no authority resting jurisdiction. Rather, fer it was because diction in a contract case on a single call. solicited, the written contract negoti The issue remains same: to establish ated, partially performed and in Texas that the minimum contacts with the forum state the Court found that the party out-of-state required jurisdiction, only confer a non- purposefully had availed itself of privi resident that purposefully has availed itself lege of conducting activities within the fo privileges conducting and benefits of rum state. “Pippin solicited the contract business in the forum state has sufficient by Texas, call to Beechem in jurisdiction. contacts to confer personal signed here, Beechem the contract payments were made mail to rejected juris- Beechem’s specifically Courts have address Texas.” Id. at 361. call to single telephone diction based on a cases, Distinguishing other this Court In initiate a contract. Blair Communica- found that tions, the nonresident had other con Survey Equipment Inc. v. SES Ser- Texas, including vices, Inc., tacts with correspon our sister court in Houston dence, payment for the moving sludge of a concluded: “We do not believe that initiat- applicator in causing its insur contract discussions with a Texas resi- agent dent, ance company to contact the Texas subsequently entering into arrange coverage contract, for the machine. making payment addition to Beechem, at 362. we concluded: “We are sufficient contacts with Texas do not imply by opinion that merely when the entire substance of the contract contracting with a resident of performed this State outside the state.” would “of- a Texas court haling them into 723, (Tex.App.-Houston [1st 730 S.W.3d play and notions of fair traditional 2002, also Electro fend pet.). no Dist.] Shoe Techs., justice.” International 176 source, Battery substantial Inc. v. Horizon 310, 316, 66 (5th Cir.1999) U.S. Washington, 326 867, (applying Tex Co. v. 872 F.3d Schlobohm, (1945); 154, (contract L.Ed. 95 law) party an out-of-state with I Accordingly, would at 358. automatically establish suf does not alone court, of the trial contacts; judgment other factors reverse minimum ficient spe- the Hoiks’ considered); judgment granting & Co. v. render J.D. Fields must be (Tex. and order dismissal Inc., Streit, appearance, cial S.W.3d W.H. jurisdiction. lack of suit for pet.) no Dist.] App.-Houston [1st TeleVentures, (same); Internation Inc. v. (Tex. Tech.,

al Game denied) (same). 2000, pet. App.-Austin fur in Blair Communications The court that focuses rejected bright-line test ther initiation of contact between solely on the purposeful contact parties: “While important an com the forum state is PATLYEK, Dwayne Appellant, analysis, minimum contacts ponent of the requirement equally important is the between a substantial connection there be defendant and the

the nonresident BRITTAIN, Appellee. Luther arising from such contact.” state No. 03-03-00641-CV. Ring Sys. Power v. International (quoting Consultoria, S.A., 39 Y de Comercio Appeals Court (Tex.App.-Houston [14th Austin. pet.)). Dist.] July that the Hoiks en- showing There is no activities within the gaged purposeful minimum necessary had the

forum state or subject personal juris- contacts to them only affirma- in Texas. The Hoiks’ diction acts directed toward Texas were tive years to in Austin over four calls to USA Otherwise, arrange for use of the boat. relationship the evidence shows never outside of originated coast, on the Texas used the boat who main- are residents of Alabama Hoiks in Alabama. The their business tain justify expecta- an activities do not Hoiks’ court. into a Texas being haled tion with Texas the Hoiks’ contacts Because to avail themselves were insufficient benefits, of this protections privileges, Beechem, state, see

Case Details

Case Name: Holk v. USA MANAGED CARE ORGANIZATION, INC.

Court Name: Court of Appeals of Texas

Date Published: Jul 15, 2004

Citation: 149 S.W.3d 769

Docket Number: 03-03-00477-CV

Court Abbreviation: Tex. App.