Nelson B. Freimer, M.D. and Victor I. Reus, M.D. v. Dr. Michael Escamilla

NUMBER 13-04-006-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG NELSON B. FREIMER, M.D. AND VICTOR I. REUS, M.D., Appellants, v. DR. MICHAEL ESCAMILLA, Appellee. On appeal from the 139th District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Yañez Memorandum Opinion by Justice Yañez Appellants, Nelson B. Freimer, M.D., and Victor I. Reus, M.D., bring this accelerated interlocutory appeal of an order denying their special appearance.[1] By a single issue, appellants contend the trial court erred in denying their special appearance. We affirm. I. Background Appellants are research scientists at the University of California San Francisco (AUCSF@).[2] Appellee, Dr. Michael Escamilla, is also a research scientist. From approximately 1990 through 1998, appellee and appellants conducted research at UCSF on the genetic origins of psychiatric illnesses. In 1998, appellee accepted a tenure-track position at the University of Texas Health Science Center (AUTHSC@) in San Antonio, Texas. On November 4, 1998, prior to appellee=s departure from UCSF, appellants and appellee entered into a collaboration agreement (Athe Agreement@), which provided for collaboration between the parties on existing and future research. Appellee contends that appellants breached the Agreement by failing to send samples and data to him as called for in the Agreement. After resigning from UCSF, appellee sued UCSF[3] in state court in California (Athe California suit@), alleging national origin discrimination and retaliation. The jury found in favor of UCSF.[4] On November 1, 2002, appellee sued appellants and UCSF in Hidalgo County, Texas, alleging breach of the Agreement and related causes of action. Appellee alleges that Texas courts have jurisdiction over appellants because the Agreement was partially performed in Texas and appellants breached the Agreement. On December 6, 2002, appellants filed a special appearance, contending that Texas courts have neither general nor specific jurisdiction.[5] Following hearings on March 12, 2003, and April 24, 2003, the trial court denied appellants= special appearance on December 10, 2003. This appeal ensued. II. Standard of Review The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the long-arm statute.[6] To prevail in a special appearance, a non-resident defendant bears the burden of negating all bases of personal jurisdiction alleged by the plaintiff.[7] This standard does not mean that the nonresident defendant must negate every possible ground in the universe, but rather the acts in Texas alleged by the appellant to support personal jurisdiction.[8] Whether a court has personal jurisdiction over a defendant is a question of law.[9] In determining the question of personal jurisdiction, however, a trial court must frequently resolve questions of fact.[10] Where a trial court enters an order denying a special appearance and issues findings of fact and conclusions of law, the appellant may challenge, and the court of appeals may review, the fact findings on both legal and factual sufficiency grounds.[11] Appellate courts review the trial court=s conclusions of law de novo.[12] An appellant may not challenge a trial court=s conclusions of law for factual insufficiency; however, the reviewing court may review the trial court=s legal conclusions drawn from the facts to determine their correctness.[13] If the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal.[14] We examine the entire record, not just the evidence in support of the trial court=s legal conclusion.[15] When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied.[16] When the appellate record includes the reporter's and clerk's records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court.[17] For legal sufficiency points, if there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails.[18] III. Applicable Law In Texas, a party may contest personal jurisdiction by filing a special appearance.[19] A special appearance is determined by reference to the pleadings, any stipulations made by and between the parties, any affidavits and attachments filed by the parties, discovery, and any oral testimony.[20] A Texas court may assert personal jurisdiction over a nonresident defendant only (1) when the Texas long-arm statute authorizes the exercise of jurisdiction and (2) when the exercise is consistent with the due process guarantees embodied in both the United States and Texas constitutions.[21] The long-arm statute authorizes jurisdiction over a nonresident defendant Adoing business@ in Texas.[22] The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant Aas far as the federal constitutional requirements of due process will allow.@[23] Due process permits a state court to exercise personal jurisdiction over a defendant only if the defendant has some minimum, purposeful contacts with the state, and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.[24] A nonresident that purposefully avails itself of the privileges and benefits of conducting business in Texas is amenable to a suit in Texas.[25] However, a nonresident will not be subject to Texas jurisdiction based upon mere random, fortuitous, or attenuated contacts.[26] The Atouchstone@ of jurisdictional due process analysis is Apurposeful availment.@[27] AIt is essential in each case that there be some act by which the defendant 'purposefully avails' itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.@[28] There are three important aspects to be considered in evaluating purposeful availment.[29] AFirst, it is only the defendant's contacts with the forum that count: purposeful availment >ensures that a defendant will not be haled into a jurisdiction solely as a result of . . . the unilateral activity of another party or a third person.=@[30] Second, the acts relied upon must be Apurposeful@ rather than Arandom, isolated or fortuitous.@[31] Third, a defendant must seek some benefit, advantage, or profit by Aavailing@ itself of the jurisdiction.[32] By invoking the benefit and protections of a forum's laws, a nonresident consents to suit there.[33] By contrast, a nonresident may purposefully avoid a jurisdiction by structuring its transactions so as neither to profit from the forum's laws nor be subject to its jurisdiction.[34] A non-resident defendant=s contacts with a forum can give rise to either general or specific jurisdiction.[35] General jurisdiction is established when the defendant has made continuous and systematic contacts with the forum.[36] Specific jurisdiction is established if the defendant's alleged liability arises from or is related to an activity conducted within the forum.[37] Thus, for the trial court to have had specific jurisdiction over appellants, (1) appellants must have purposefully made minimum contacts with Texas and (2) appellee=s causes of action must have arisen from or related to those contacts.[38] Upon finding that the nonresident defendant purposefully established minimum contacts with the forum state sufficient to support the exercise of either specific or general jurisdiction, we must then determine if the exercise of in personam jurisdiction comports with fair play and substantial justice.[39] In making this determination, we consider (1) the burden on the nonresident defendant, (2) Texas's interest in adjudicating the dispute, (3) the plaintiff's interest in getting convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy, and (5) the states' shared interest in furthering fundamental substantive social policies.[40] 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 with the forum state.[41] IV. Analysis A. Waiver We begin by addressing appellee=s argument that appellants waived their right to challenge the trial court=s jurisdiction by arguing the affirmative defense of res judicata. Specifically, appellee contends that on March 10, 2003, appellants filed a AReply to Plaintiff=s Response on Defendants= Special Appearance,@ in which they note appellee=s earlier California lawsuit and state that the present suit is Anothing more than forum shopping and an effort to relitigate matters that have already been adjudicated in California.@ At the March 12, 2003 hearing, appellee=s counsel distinguished the California lawsuit, alleging discrimination and retaliation, from the present suit, alleging breach of contract. The court noted that it wanted to know Aif this matter was pursued in California and to what degree.@ The court further noted, AI need to know all the equities and all the facts and I=m not going to have people litigate the same case twice.@ At the April 24, 2003 hearing, appellee argued that appellants waived their special appearance by arguing res judicata in their reply. In response, appellants= counsel noted that ACalifornia ha[d] a much greater interest in adjudicating this controversy because this matter has already been litigated over in that state.@ Appellants= counsel further noted that appellants had not Aasked for this court to make any kind of ruling on an affirmative defense.@ We have examined appellants= reply and arguments at both special appearance hearings. Appellants did not argue the affirmative defense of res judicata, request dismissal of the suit on that basis, or request any other affirmative relief from the trial court. We conclude appellants did not waive their right to challenge the trial court=s jurisdiction. B. Specific Jurisdiction It is undisputed that appellants (1) are residents of California, (2) have never lived or owned property in Texas, and (3) have never been employed in Texas. Appellee contends that appellants are subject to jurisdiction in Texas because they executed an agreement with a Texas resident, which provided that part of the Agreement would be performed in Texas. Appellee contends that this conduct constitutes doing business in Texas pursuant to section 17.042 of the civil practice and remedies code.[42] As noted, the applicable provision of the Texas long-arm statute defines Adoing business@ as contracting by mail or otherwise with a Texas resident with performance either in whole or in part in Texas.[43] It is undisputed that the Agreement was executed in California. However, the Agreement provides for partial performance by the parties in Texas, and appellee contends that the Agreement was partially performed in Texas. The first five paragraphs of the Agreement provide for the order of authorship of various papers expected to develop from the parties= research. The next section addresses A[f]uture collaboration on bipolar disorders@ regarding Astudies in Costa Rica.@ The Agreement provides, in pertinent part: Dear Michael: Congratulations on your new position. As you are leaving the laboratory we need to make arrangements for your continued participation in the ongoing research projects of our group. In structuring the specifics of the arrangements we are keeping in mind our continuing role in your career development, our contractual obligations to Millennium Pharmaceuticals (MPI), and our mutual interest in following usual scientific practice for collaborations. This letter outlines our understanding about these points. . . . . 2. You will be first author, Alison McInnes (AM) will be first co-author, and NF [Nelson Freimer] will be last author of a paper demonstrating a detailed screen of chromosome 18 . . . . The methods of analysis will be agreed upon by the following authors [you, AM, Sue Service (SS) and LS]. All genotyping and analysis for this paper will be performed in NF=s laboratory. As with other papers discussed below, computerized genotype files may be transmitted between NF=s laboratory and your new laboratory, for the purpose of scoring genotypes. . . . . 5. In conjunction with Pedro Leon (PL), you will have the opportunity to write a paper describing the results of genotyping studies of chromosomes 18p and 18q in a sample of patients from CR [Costa Rica] pedigrees 001 and 004 with diagnoses other than BPI (the exact diagnoses to be included will be determined by you, PL, NF [Nelson Freimer], Victor Reus [VIR] and LS). The first and last positions on this paper will be decided between PL and you. The diagnostic work for this paper will be carried out under guidance from LS. The genotyping for this analysis will be performed in either the laboratory of PL or you, as decided between you. Samples for this analysis will be provided to you for the purpose of this analysis only. . . . . 7. You will be an author (unspecified position) on future genetic mapping and clinical papers that make use of the population sample collected in CR with your participation. Future collaboration on bipolar disorder between us will be established as follows: 1. With respect to studies in Costa Rica: a. You will remain involved in training new members of the clinical team, for the bipolar disorder projects on which NF is the PI. Your involvement in this process will be coordinated between you and VIR. We aim to develop a formal training program for individuals who may be involved in any of several research projects aimed at identifying the genetic basis of neuropsychiatric disorders in Costa Rica. If possible, the training to be conducted by VIR and you will be within the framework of such a program, and the training will be uniform for those undertaking diagnostic assessments for all of the disorders. b. You and VIR will comprise the nucleus of a Clinical Studies group to undertake analysis of the clinical database generated through the genetic studies of bipolar disorder in Costa Rica. This group may ultimately be expanded to include other faculty members or trainees at UCSF or University of Texas (UT) or collaborators from Costa Rica. The members of this group will approve individual analyses of the clinical data. It is our hope that this group will ultimately analyze clinical data from other disorders under investigation in Costa Rica (e.g.[,] schizophrenia, substance abuse). Furthermore, it is possible that trainees from UT will undertake analyses under the mentorship of faculty members from UCSF and vice versa. c. NF and VIR will assist you, as consultants or collaborators, in your intended efforts to collect a sample of BP patients within the United States. We will make available to you the results of genetic mapping and mutation detection data from the analyses of BP samples collected in Costa Rica. As you know, these important data will be provided to you on a confidential basis as they are obtained. The intention will be for you to have an opportunity (in collaboration with NF and VIR) to screen the samples that you collect for mutations or to search for allelic associations, in advance of publications (in accord with usual scientific practice, the information provided will not be used by you for independent presentations, publications or claims during the period that the information provided remains confidential). Additionally, NF and VIR will discuss with you and your colleagues at UT the possibility of collaborating in collecting BP samples at different sites in the United States through a formal funding mechanism (e.g.[,] NIH cooperative ROI proposals). 2. As you request, neither VIR nor NF will sample probands in Costa Rica identified on the basis of a diagnosis of schizophrenia. All samples collected by you (cell lines and DNA) in your study of schizophrenia in CR, and which are currently stored at UCSF (the >SC= samples) will be transferred to you at San Antonio. Neither VIR nor NF assert any rights to ownership of such samples nor authorship of papers using those samples. From the date of your departure for San Antonio (November 1, 1998), any additional transformations and DNA extractions of >SC= samples will be performed on an agreed upon cost basis. You will be invited to quarterly meetings between NF=s group and Millennium Pharmaceuticals (MPI) relating to the sponsored research agreement between UCSF and MPI that runs from 1996 to 2000. Reimbursement for you to attend these meetings will be at the discretion of MPI upon your request to MPI. As you know, meeting participants must be able to receive confidential information and have no potential or actual conflicting obligations to third parties. We agree to provide you with confidential updates of results from ongoing analyses from our studies of bipolar disorder in CR. These updates will occur on an at least quarterly basis. In accordance with scientific practice and in the spirit of collegiality these updates are for you to continue your collaboration with us and should not be used by you for independent presentations, publications or claims during the period that the information provided remains confidential. Sincerely, /s/ Nelson Freimer, M.D. /s/ Victor I. Reus, M.D. Please confirm our understanding by signing below and sending a copy back to me. I look forward to our continued collaborations. /s/ Michael A. Escamilla, M.D Nov. 4, 1998 1. Texas Long-Arm Statute Appellants contend that they do not come within the provisions of the Texas long-arm statute because appellee was not a Texas resident at the time the Agreement was executed.[44] Although appellants concede that the parties knew appellee planned to move, he was a California resident at the time the parties executed the Agreement. In support of their argument, appellants cite Moni Pulo Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170, 175 (Tex. App.BHouston [14th Dist.] 2003, pet. denied) (holding evidence insufficient to support general jurisdiction over non-resident defendant based on contract between two non-resident defendants where one defendant=s parent corporation was headquartered in Houston). We find Moni Pulo to be distinguishable from the facts before us. In Moni Pulo, the court found insufficient evidence to support general jurisdiction based on the negotiation of a contract in Texas by two non-residents for the performance of a joint venture outside of Texas.[45] The Moni Pulo court noted that its decision was based in part on the rationale that Anegotiating and signing a contract in Texas is insufficient if performance takes place elsewhere.@[46] Here, however, the basis of appellee=s suit is the alleged breach of an Agreement that provides for partial performance in Texas. Moreover, Texas courts have generally held that the relevant jurisdictional time frame ends on the date of the injury.[47] Because appellee was a Texas resident at the time the alleged breach occurred, we find appellants= argument to be without merit. 2. Partial Performance in Texas We turn to an examination of the evidence regarding whether the Agreement was partially performed in Texas. Dr. Reus testified[48] that he has had Afrequent communications@ with appellee regarding efforts to complete the objectives described in the Agreement. Dr. Reus said he has Aa stack of e-mails between [appellee] and myself over a series of projects since November of >98 to the present day.@ According to Dr. Reus, the activities referenced in the Agreement have continued even after appellee relocated to UTHSC. Although Dr. Reus stated he is Anot interested@ in initiating any new projects with appellee, he also stated that he Astand[s] fully committed to completing and closing out the work that we have done together.@ He testified that there has been a Afruitful working collaboration@ on the projects described in the Agreement. With regard to paragraph 1a of the Agreement (training of new members of a clinical team for bipolar disorder projects), Dr. Reus testified that he had discussed the clinical data set with appellee by telephone over the last several years and that the project was Ain process.@ Dr. Freimer testified that he and Dr. Reus are working to accomplish the objectives described in the Agreement with regard to appellee. He stated that he and Dr.Reus have continued to publish papers with appellee and that Athis has involved a continuous effort over all the time since he=s [appellee] been gone.@ Dr. Freimer testified that he has given appellee access to data and to samples. With regard to paragraph 2 of the Agreement (concerning the transfer of samples stored at UCSF to appellee), Dr. Freimer testified that he believes that the transfer has occurred. Although appellee contends that many of the provisions in the Agreement have not been completed, he testified that after his move to UTHSC, he and Dr. Reus Ahave continued to work on the clinical areas of the research.@ Appellee testified that some of the papers described in the first section of the Agreement have been published. Based on the evidence, we conclude that the Agreement was partially performed in Texas. Accordingly, we hold that appellants did business in Texas and that Texas courts have jurisdiction over appellants under the Texas long-arm statute.[49] 3. Minimum Contacts We begin our jurisdictional due process analysis by determining whether appellants Apurposefully availed@ themselves of the privilege of conducting activities in Texas.[50] In evaluating purposeful availment, we examine (1) appellants= contacts with Texas, (2) whether appellants= acts were Apurposeful,@ rather than Arandom, isolated or fortuitous,@ and (3) whether appellants sought some benefit, advantage or profit by availing themselves of the benefits and protections of Texas law.[51] Appellants argue that executing the Agreement is insufficient to establish personal jurisdiction over them. Appellants cite this Court=s opinion in Valsangiacomo v. Americana Juice Import, Inc., 35 S.W.3d 201, 208 (Tex. App.BCorpus Christi 2000, no pet.), for the proposition that A[p]artial performance of a contract in Texas is >not the sine qua non of personal jurisdiction.=@[52] Appellants argue that the Agreement contemplates Aonly incidental activity in Texas@ because Athe only actual defined activity in Texas would be [appellee] receiving and evaluating the data already collected and compiled in California and Costa Rica.@ The evidence shows that from 1999 through early 2002, appellants corresponded frequently by e-mail with appellee in Texas regarding their collaboration on various research projects and papers. As noted above, appellants testified that they conferred frequently with appellee, sent data and analyses to him, sought his input regarding the publication of papers, and participated in conference calls with him regarding various projects. Appellants argue that Athe fact that Texas was the destination for scientific samples is fortuitous and unrelated to the purpose of the Collaboration Agreement.@ However, the evidence establishes that appellants sent samples, data, analyses, and manuscripts to appellee in Texas. The evidence shows that appellants actively collaborated with appellee and sought his input concerning the research and various papers based on the research. Dr. Reus described the relationship as a Afruitful working collaboration@ on the projects described in the Agreement. We conclude that appellants acted purposefully by collaborating with appellee on the research.[53] By seeking the benefit of appellee=s participation and expertise and the work done at his UTHSC laboratory, appellants availed themselves of the privilege of conducting activities within Texas. We conclude that appellants have established sufficient minimum contacts with Texas to subject them to personal jurisdiction. Specific jurisdiction exists if the defendant=s activities have been Apurposefully directed@ to the forum and the litigation results from injuries arising out of or relating to those activities.[54] Here, by executing an Agreement requiring partial performance in Texas, appellants Apurposefully directed@ their activities to Texas. Appellants= alleged liability arises from or is related to their activities in Texas concerning performance of the Agreement. We conclude that appellee=s claims relate to or arise from appellants= contacts with Texas, such that specific jurisdiction attaches. 4. Traditional Notions of Fair Play and Substantial Justice Having determined that appellants purposefully established minimum contacts with Texas to support specific jurisdiction, we turn to whether the exercise of personal jurisdiction over appellants comports with fair play and substantial justice.[55] Appellants argue that the burden on them will be Asignificant, given that they are in San Francisco, California, and must litigate in Edinburg, Texas.@ Unwelcome travel and expenses, however, are generally insufficient to defeat jurisdiction.[56] Moreover, UCSF did not contest jurisdiction and appellants= counsel represented to the trial court that UCSF Amost likely@ will be assuming appellants= defense. Therefore, appellants= presence will be required in Texas because UCSF has not contested jurisdiction. Accordingly, we conclude that the burden on appellants is not significant. For the same reasons, we find that the interstate judicial system=s interest in obtaining the most efficient resolution of the controversy weighs in favor of finding that the exercise of jurisdiction over appellants is proper. We also find that Texas has a significant interest in adjudicating the dispute.[57] The record includes the affidavit of Charles L. Bowden, M..D., chair of the psychiatry department at UTHSC. The affidavit states that UTHSC has contributed approximately $300,000.00 to provide equipment to appellee to carry out the research described in the Agreement and that the alleged breach of the Agreement will Ahave a major impact on the research mission@ of the department. Taking into account all the factors involved in a fairness analysis, we hold that the exercise of jurisdiction over appellants by a Texas court does not offend traditional notions of fair play and substantial justice.[58] Accordingly, we AFFIRM the trial court=s denial of appellants= special appearance. LINDA REYNA YAÑEZ, Justice Memorandum opinion delivered and filed this the 16th day of March, 2006. [1] See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (a)(7) (Vernon Supp. 2005); Tex. R. App. P. 28.1. [2] By December 2002, Dr. Freimer was a professor at the University of California Los Angeles. [3] Although Dr. Freimer was initially a defendant in the suit, the trial court granted summary judgment on the cause of action involving him and dismissed him from the suit. [4] See Escamilla v. Regents of the Univ. of California, et al., 2003 WL 22930594 (Cal. App. 1 Dist. 2003, review denied). [5] The regents of UCSF did not contest jurisdiction. At the April 24, 2004 special appearance hearing, UCSF=s counsel advised the trial court that UCSF Amost likely@ was assuming the defense of appellants. [6] Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). [7] Coleman, 83 S.W.3d at 806; BMC Software, 83 S.W.3d at 793. [8] Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 548 (Tex. App.BHouston [14th Dist.] 2003, no pet.). [9] Coleman, 83 S.W.3d at 805-06; BMC Software, 83 S.W.3d at 794. [10] BMC Software, 83 S.W.3d at 794. [11] Id. [12] Id. [13] Id. [14] Id. [15] Valsangiacomo v. Americana Juice Import, 35 S.W.3d 201, 205 (Tex. App.BCorpus Christi 2000, pet. dism=d w.o.j.). [16] BMC Software, 83 S.W.3d at 795. [17] Id. [18] Id. [19] Tex. R. Civ. P. 120a(1). [20] Id. at 120a(3). [21] Coleman, 83 S.W.3d at 806. [22] See Tex. Civ. Prac. & Rem. Code Ann. ' 17.042 (Vernon 1997). In pertinent part, the Texas Civil Practice and Remedies Code characterizes nonresident activity as "doing business" in Texas where the nonresident: (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; (2) commits a tort in whole or in part in this state; (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state; or (4) performs any other acts that may constitute doing business. Tex. Civ. Prac. & Rem. Code Ann. ' 17.042 (Vernon 1997). [23] Coleman, 83 S.W.3d at 806. [24] Id. [25] Id. [26] Id. [27] Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)). [28] Id. [29] Id. at 785. [30] Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). [31] Id. (quoting Keeton v. Hustler Magazine Inc., 465 U.S. 770, 774 (1984)). [32] Id. (citing Merriam Webster=s Collegiate Dictionary 79 (10th ed. 1993) (AAvail: . . . to be of use or advantage to: profit@)). [33] Id. (citing World‑Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). [34] Id. (citing Burger King, 471 U.S. at 473). [35] Commonwealth Gen. Corp. v. York, 177 S.W.3d 923, 925 (Tex. 2005). [36] Id. [37] Id. [38] See id. [39] Guardian Royal Exch. Assur., Ltd. v. English China Clays P.L.C., et al., 815 S.W.2d 223, 228 (Tex. 1991). [40] Id. [41] Id. at 231. [42] See Tex. Civ. Prac. & Rem. Code Ann. ' 17.042 (Vernon 1997). [43] Id. at ' 17.042 (1). [44] Appellants dispute that the Agreement is an enforceable contract; however, for purposes of special appearance analysis, they assume it to be an enforceable contract. See Stern v. KEI Consultants, Ltd., 123 S.W.3d 482, 489 (Tex. App.BSan Antonio 2003, no pet.) (noting at special appearance stage of proceedings, reviewing court is not charged with determining merits of underlying claims). [45] Moni Pulo Ltd. v. Trutec Oil and Gas, Inc., 130 S.W.3d 170, 175 (Tex. App.BHouston [14th Dist.] 2003, pet. denied) Id. at 175-76. [46] Id. at 175. [47] Schott Glas v. Adame, 178 S.W.3d 307, 313 (Tex. App.BHouston [14th Dist.] 2005, pet. filed) (citing cases). [48] In support of their special appearance, appellants submitted the affidavit of Paul G. Gutierrez, chief trial counsel for appellants and UCSF in the California suit. Attached to Gutierrez=s affidavit were excerpts of testimony from the California suit. Unless otherwise noted, all references to Atestimony@ in this opinion refer to testimony given by the parties in the California suit. [49] See Tex. Civ. Prac. & Rem. Code Ann. ' 17.042(1) (Vernon 1997). [50] See Michiana, 168 S.W.3d at 784-85. [51] Id. at 785. [52] Valsangiacomo., 35 S.W.3d at 208 (quoting Magnolia Gas Co. v. Knight Equip. & Mfg.Corp., 994 S.W.2d 684, 692 (Tex. App.BSan Antonio 1998, no pet.), rev=d on other grounds by BMC Software, 83 S.W.3d at 794). [53] See Michiana, 168 S.W.3d at 785. [54] Commonwealth, 177 S.W.3d at 925. [55] Guardian Royal, 815 S.W.2d at 228. [56] Id. at 231. [57] Id. at 228. [58] See id. at 234.