Baker, Jessica v. Reid Bechtle, Sue Luster, Charles Cosgrove, IRA Cohen, Stephen Reynolds, Harry Gaines, John Corse, Ralph Clark, and Mark Nassar

Affirmed and Memorandum Opinion filed March 16, 2004 Affirmed and Memorandum Opinion filed March 16, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-00-00671-CV ____________ JESSICA BAKER, RAMONI AJIBADE, ASHLEY ALFRED, IAIN ANDERSON, LISA BAUERLE, JERMAINE BIGGS, PHILLIP BOWMAN, MARK CAVAZOS, DENTON COCKRELL, VANESSA CORPUS, ROSA COOVER, WANDA DOWN, RYAN EVANS, GRACE FIELDER, KAREN FLIPPEN, JARMELE GIBBS, SYED HASAN, SHAWN HENDERSON, DANIELLE HERRINGTON, DAN HUTCHINS, STEPHEN JOHNSON, JANE KAMUYU, KALLOL KHAN, GEORGE LECOMPTE, DAVID LINER, BRENT MAGANA, SHARON MARSHALL, DONALD MARTIN, JUNE MARTIN, DARIN MCNEW, LEONARD MORALES, GREG MOSES, JUAN NAVARRO, MICHAEL NGUYEN, RAPHAEL NWACHUKWU, OLANREWAJU OBADINA, THOMAS PARKE, LONG PHAN, CHAD PLEASANT, KATRINA RESENDEZ, RANDOLPH RUIZ, CHERIE SHORT, RANDY SHUMATE, LYNWOOD STEVENSON, RANDOLPH WADE, TIMOTHY WARNER, BETSY CARTHAN-WOODARD, MARY WOODSON AND MATTHEW ZOOK, Appellants V. REID BECHTLE, SUE LUSTER, CHARLES COSGROVE, IRA COHEN, STEPHEN REYNOLDS, HARRY GAINES, JOHN CORSE, RALPH CLARK AND MARK NASSAR, Appellees On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 99-53326 M E M O R A N D U M   O P I N I O N This is an appeal of the trial court=s order granting defendant Sue Luster=s special appearance. In the underlying suit, appellants, all students at the Houston campus of Computer Learning Centers, Inc. (ACLC@), constitute a class of plaintiffs suing CLC and Sue Luster,[1] its director in charge of advertising, for violations of the Texas Deceptive Trade Practices Act, negligent misrepresentation, and common law fraud. As to Ms. Luster, appellants allege that, by approving misleading company advertising, she misrepresented to potential students the adequacy of education provided at the Houston campus and misrepresented the computer capabilities of the Houston campus. Luster neither resides nor does business in Texas. Consequently, she filed a special appearance which the trial court granted, dismissing Luster from the suit. Appellants complain that the trial court erred in granting Luster=s special appearance.[2] We affirm. F A C T U A L  BACKGROUND Sue Luster serves as vice president and chief operating officer of CLC. In connection with these positions, she is in charge of all media and audio advertising for the corporation. Appellants, who are all students of the Houston campus of CLC, in addition to suing CLC, sued Luster individually. On appeal they claim that she approved misleading advertisements for CLC. DISCUSSION  A N D  HOLDING S JURISDICTION IN TEXAS A. 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. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). A defendant challenging a Texas court=s personal jurisdiction over it must negate all jurisdictional bases. Id. Whether a court has personal jurisdiction over a defendant is a question of law. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805B06 (Tex. 2002); Marchand, 83 S.W.3d at 794. But in resolving this question of law, a trial court must frequently resolve questions of fact. Id. at 806; Marchand, 83 S.W.3d at 794. On appeal, the trial court=s determination to grant or deny a special appearance is subject to de novo review, but we may be called upon to review the trial court=s resolution of a factual dispute. Coleman, 83 S.W.3d at 806. When the trial court does not issue findings of fact, we presume that the trial court resolved all factual disputes in favor of its judgment. Id. However, 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. Marchand, 83 S.W.3d at 795. B. The Texas Long-Arm Statute A Texas court may exercise jurisdiction over a nonresident where (1) the Texas long-arm statute authorizes the exercise of jurisdiction; and (2) the exercise of jurisdiction is compatible with federal and state constitutional guarantees. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990); Shearson Lehman Bros. v. Hughes, Hubbard & Reed, 902 S.W.2d 60, 63 (Tex. App.CHouston [1st Dist.] 1995, writ denied). The Texas long-arm statute provides that, A[i]n addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident . . . commits a tort in whole or in part in this state . . . .@ Tex. Civ. Prac. & Rem. Code ' 17.042(2). The broad language of the Texas long-arm statute=s Adoing business@ requirement has been construed to reach as far as the federal constitution allows. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). Accordingly, to determine whether a Texas state court may exercise jurisdiction over a nonresident, we look to federal due process requirements. Id. C. Federal Due Process Requirements and Types of Jurisdiction Federal due process requirements limit a state=s power to assert personal jurisdiction over nonresident defendants. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 413B14 (1984). In a state court=s exercise of personal jurisdiction, it determines whether due process is satisfied by deciding (1) whether the nonresident defendant has purposely established minimum contacts with the forum state; and (2) if so, whether the exercise of jurisdiction comports with traditional notions of Afair play and substantial justice.@ Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475B76 (1985). In essence, the minimum contacts analysis turns on a determination of whether the nonresident defendant Apurposely availed@ herself of the privilege of doing business in a forum, which in turn invokes the benefits and protections of its laws. Guardian Royal, 815 S.W.2d at 226. The Apurposeful availment@ requirement ensures that a nonresident defendant cannot be haled into a jurisdiction for merely random, attenuated, or fortuitous contacts, or for the unilateral act of another party or other person. Id. There are two types of jurisdiction: general and specific. Schlobohm, 784 S.W.2d at 358. Appellants allege that Texas can exercise only specific jurisdiction over Luster; they do not allege that Texas has general jurisdiction over Luster. For a court to exercise specific jurisdiction over a nonresident defendant, the cause of action must arise out of, or relate to, the nonresident defendant=s contact with the forum state. Guardian Royal, 815 S.W.2d at 227. Otherwise, the minimum contacts= requirement is left unsatisfied. Id. AWhen specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship among the defendant, the forum and the litigation.@ Id. at 228. Generally, jurisdiction over an individual cannot be based on jurisdiction over a corporation. Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 99 (Tex. App.CHouston [14th Dist.] 1995, writ denied); Clark v. Noyes, 871 S.W.2d 508, 518 (Tex. App.CDallas 1994, no writ). An individual=s minimum contacts are Anot to be judged according to their employer=s activities [in the forum]. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant=s contacts with the forum State must be assessed individually.@ Calder v. Jones, 465 U.S. 783, 790 (1984). An individual is subject to the forum=s jurisdiction if (1) the corporation is the alter ego of the individual, (2) the individual is advancing his own interest, not the corporation=s, or (3) she commits a tort for which she would be individually liable even if the act was within the course and scope of employment. Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985); Saktides v. Cooper, 742 F. Supp. 382, 385 (W.D. Tex. 1990). In making a decision, the court is to look at the totality of the circumstances. Stuart, 772 F.2d at 1192. Thus, ultimately, the question before us is whether appellant=s claims arose out of contacts that Luster purposefully directed toward this State. Appellants allege that the trial court erred in sustaining Luster=s special appearance because it failed to consider evidence that a tort occurred in Texas. Since no findings of fact were filed, we assume that the trial court made all findings of fact necessary to support the judgment. See Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 802 (Tex. App.CHouston [1st Dist.] 1998, pet. denied). Therefore, after we review all the evidence, we then may reverse the trial court=s decision only if its ruling is supported by no evidence or by insufficient evidence. In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Runnells v. Firestone, 746 S.W.2d 845, 849 (Tex. App.CHouston [14th Dist.] 1988), writ denied per curium, 760 S.W.2d 240 (Tex. 1988). D. The Evidence Presented in the Trial Court We now turn to the evidence presented in the trial court. Luster is a resident of Virginia. She does not own property in Texas, nor does she maintain a place of business in Texas. She is vice president and chief operating officer of CLC, a Delaware Corporation with its principal place of business in Fairfax, Virginia. Her duties in CLC include overseeing all media and audio advertising, including advertising that reached appellants. Appellants claim that advertising, approved by Luster, misrepresented the quality of the education offered by CLC and misrepresented the characteristics and qualities of the CLC Houston staff, as well as its facilities and computers. They do not claim that Luster subjected herself to Texas jurisdiction because of other acts. They assert Luster, individually, can be forced to come to trial in Texas solely because she approved advertising while outside of this state. Assuming without deciding that the act of approving advertising can constitute a tort, Appellants have not shown that Luster, through CLC=s advertising, misrepresented the quality of the education offered by CLC, because we do not have the advertisements in our record. The pleadings do not even contain copies of the advertisements. Moreover, in her special appearance, Luster stated that she never made any misrepresentations to any of the appellants, and never committed any tort outside of the State of Texas which had its effects felt in the State of Texas. And, as important, at the special appearance hearing, the court asked appellants what Luster did in an individual capacity to subject herself to Texas jurisdiction. Appellants replied A[In h]er individual capacity [as] such, I can=t sit here and look the Court in the eye with any candor and say[.][3] I don=t know of anything individually.@ Thus, the state of the record is such that it contains no proof of a misrepresentation in Texas as alleged by appellants, and otherwise no proof that would subject Luster to the jurisdiction of Texas courts. In short, nothing contradicts the trial court=s ruling. Therefore, we cannot say that the trial court=s decision is legally or factually insufficient. E. Weitzel v. Barnes In response to this line of cases, appellants direct us to Weitzel v. Barnes in support of their argument that Luster could be held individually liable under the Texas Deceptive Trade Practices Act for making misrepresentations to a consumer, and should accordingly be subject to jurisdiction in Texas. See Weitzel v. Barnes, 691 S.W.2d 598, 601 (Tex. 1985). In Weitzel, the Texas Supreme Court held that under the Texas DTPA, Athere can be individual liability on the part of a corporate agent for misrepresentations made by [her].@ Id. For two reasons, Weitzel is not the controlling authority here. First, we note again that the advertisements containing the alleged misrepresentations were not included in the record, so the record contains no proof of misrepresentations. Second, Weitzel explains when an employee of a corporation may be held liable personally under the Texas DTPA. Id. It does not address the additional, prefatory question we have here: whether Luster can even be sued in Texas. Thus, when determining if a plaintiff may sue an out-of-state employee in Texas and not violate due process concerns, we must turn instead to those cases that outline when Texas courts may assert personal jurisdiction over an out-of-state individual. Those cases hold that, absent evidence that the individual (1) was the alter ego of the corporation, (2) advanced his own interests and not the corporation=s, or (3) committed a tort in the state for which he would be individually liable, Texas cannot assert jurisdiction over the individual merely because she acted as the agent of the corporation. Stuart, 772 F.2d at 1197; Vosko, 909 S.W.2d at 99; see also Cadle v. Graubart, 990 S.W.2d 469, 472 (Tex. App.CBeaumont 1999, no pet.). S U M M A R Y In summary, after reviewing the record in its entirety and considering the parties= arguments, we find that Luster did not have sufficient minimum contacts with Texas for the courts of this State to assert jurisdiction over her. Therefore, we affirm the trial court=s decision to grant Luster=s special appearance. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed March 16, 2004. Panel consists of Justices Anderson, Fowler, and Edelman. [1] In addition to Sue Luster, appellants= suit originally included the following officers: Reid Bechtle, Charles Cosgrove, Ira Cohen, Stephen Reynolds, Harry Gaines, John Corse, Ralph Clark and Mark Nasser. At oral argument, counsel for appellants informed us that appellants wish to pursue an appeal from the trial court=s dismissal of Sue Luster, but not as to any of the other individual defendants. [2] At oral argument, counsel for appellants conceded the following: (1) appellants no longer argue that Luster waived her special appearance by filing a motion to quash discovery; and (2) other than whether the trial court erred in granting the special appearance as to Luster, no issues are now pending before this court. [3] In the record, this is punctuated with a comma, rather than a period. After reading this sentence in its context, it appears that, in order for the sentence to make sense, the punctuation should have been a period.