Opinion by Justice MOSELEY.
This is an interlocutory appeal of an order granting the special appearances of certain defendants in a complex case. Appellants are 239 individuals
A number of defendants answered and appeared below.
Texas courts may assert personal jurisdiction over a nonresident if it is authorized by the Texas long-arm statute and is consistent with federal and state constitutional due-process guarantees. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002); see TEX. CIV. PRAC. & REM.CODE ANN. §§ 17.041.045 (Vernon 1997 & Supp.2007). The long-arm statute allows Texas courts to "`reach as far as the federal constitutional requirements of due process will allow.'" Am. Type Culture Collection, Inc., 83 S.W.3d at 806 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)); see also TEX. CIV. PRAC. & REM.CODE ANN. § 17.042 (acts constituting "doing business" within state for purposes of long-arm statute). Thus, a Texas court may exercise personal jurisdiction over a nonresident if doing so complies with federal due-process requirements. See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007). Those requirements are satisfied if: (1) the nonresident defendant has established minimum contacts with the forum state; and (2) the exercise of jurisdiction comports with "`traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).
The contacts relevant to a jurisdictional analysis are those through which the nonresident defendant "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (citing Int'l Shoe Co., 326 U.S. at 319, 66 S.Ct. 154); see Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005). Only the defendant's contacts with the forum are relevant, not the unilateral activity of another party or third person. Michiana, 168 S.W.3d at 785. Such contacts must be purposeful rather than random, fortuitous, or attenuated. Id.; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 n. 18, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Further, the "defendant must seek some benefit, advantage or profit by `availing' itself of the jurisdiction." Michiana, 168 S.W.3d at 785. What is important is the quality and nature of the defendant's contacts with the forum state, rather than their number. Am. Type Culture Collection, Inc., 83 S.W.3d at 806.
Specific jurisdiction exists if the defendant's alleged liability arises out of or is related to the defendant's activities conducted within the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see also CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). In other words, there must be "a substantial connection between [the nonresident's contacts with the forum] and the operative facts of the litigation." Moki Mac, 221 S.W.3d at 585. Specific jurisdiction is not established merely by allegations or evidence that a nonresident committed a tort in the forum state or "directed a tort" at the forum state. Michiana, 168 S.W.3d at 790-92.
General jurisdiction exists if the defendant's contacts with the forum are continuous and systematic, whether or not the defendant's alleged liability arises from those contacts. BMC Software Belgium, 83 S.W.3d at 796; CSR Ltd., 925 S.W.2d at 595. General jurisdiction is "dispute-blind," as it permits permit the court to "exercise jurisdiction over the nonresident defendant based on any claim, including claims unrelated to the defendant's contacts with the state. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 168-69 (Tex.2007). Thus general jurisdiction involves a more demanding minimum-contacts analysis than that involved in specific jurisdiction, with a substantially higher threshold for subjecting the out-of-state defendant to personal jurisdiction. Id. at 168. "Usually, `the defendant must be engaged in longstanding business in the forum state, such as marketing or shipping products, or performing services or maintaining one or more offices there; activities that are less extensive than that will not qualify for general in personam jurisdiction.'" Id. (quoting 4 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1067.5). The relevant time period for assessing minimum contacts for general jurisdiction ends at the time suit is filed. Id. at 169.
Federal due-process also requires the exercise of personal jurisdiction to comport with traditional notions of fair play and substantial justice. BMC Software Belgium, 83 S.W.3d at 795 (citing Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154).
If the plaintiff seeks to assert jurisdiction over a nonresident defendant under an alter-ego theory, the plaintiff has the burden of proving its alter-ego allegation. PHC-Minden, L.P., 235 S.W.3d at 173. The supreme court has noted that piercing a corporate veil for purposes of liability ("substantive veil-piercing") differs from imputing one entity's contacts to another for jurisdictional purposes ("jurisdictional veil-piercing"), and that whether the plaintiff contends that a defendant committed fraud is not relevant for purposes of jurisdictional veil-piercing. Id. at 174-75. In the context of a parent and subsidiary corporation, the supreme court outlined the factors relevant to jurisdictional veil-piercing as follows:
Id. at 175 (quoting BMC Software Belgium, 83 S.W.3d at 799).
Whether personal jurisdiction exists is a question of law, and we review the trial court's ruling on a special appearance de novo. BMC Software Belgium, 83 S.W.3d at 794. However, the trial court must frequently resolve fact questions before deciding the jurisdictional question. Id. If the trial court does not issue findings of fact, we imply all such findings necessary to support the judgment that are supported by the evidence. See id. at 795. However, when a reporter's record is included in the appellate record, the trial court's findings of fact—express or implied —are not conclusive, and are subject to challenge on evidentiary sufficiency grounds. See id. A legal sufficiency challenge to a finding of fact fails if there is more than a scintilla of evidence to support the finding. See id. In conducting a factual
In the 1990s, appellants were solicited by Martin Vogelbacher, a German national, to invest in the Washington Supermall, which was being developed by WSI. WSI is a Delaware limited partnership with a number of limited partners, including the four Texas limited partnerships; Hapsmith Development Corporation; and Hapsmith Interests IV, L.P. WSI had one general partner, RH Development, L.P. ("RHD"), a Delaware limited partnership with its principal office in Texas. (In turn, RHD's general partners included Hapsmith Development Corporation and Rosche Capital Corporation, and Hapsmith Interests IV, L.P. was a limited partner.) As a result of Vogelbacher's solicitations, appellants invested approximately $30,000,000 in one or more of the four Texas limited partnerships.
After appellants made their investment, Farallon guaranteed a letter of credit to the senior lender, which is not alleged to be a Texas entity, and was referred to as an "LC provider."
According to appellants, their entire investment was improperly diverted from the Washington Supermall. Generally, appellants allege that "almost immediately" after they invested in the project, fees for "development" and "syndication" were paid to Rosche Finanz (the Rosche Entities' parent company), Hapsmith Development Corporation, Hapsmith Properties III, L.P., and others. Next, in what appellants characterize as a "Ponzi Scheme/ Shell Game," the money appellants invested in the Texas limited partnerships was "loaned" to other investors and to entities unrelated to the project. Thereafter, and "with the support of" other defendants (including Farallon), the Hapsmith Defendants and the Rosche Entities sold an approximate 70% ownership interest in the mall property to "a purportedly unrelated purchaser, Glimcher Properties Limited Partnership." This sale violated provisions in WSI's limited partnership agreement requiring notice of such a transfer to a group of "advisors" that included three of the Texas limited partnerships (in which appellants had invested their funds). From the proceeds of this sale, WSI made "preferential payments" to some of its limited partners, including Hapsmith Development Corporation, Hapsmith Interests IV, L.P. and Farallon, but not the Texas limited partnerships in which appellants had invested. Finally, as part of the sale, WSI borrowed money from Glimcher and an associated company, Nomura, pledging as security an additional
Appellants asserted the following causes of action: accounting, statutory fraud in stock and real estate transactions, and common law and constructive fraud (against the Rosche Entities and the Hapsmith Defendants); breach of duty of trust and confidence/fiduciary duty (against the Rosche Entities, the Hapsmith Defendants, an accounting firm, and a law firm and one of its attorneys); and conspiracy, aiding and abetting breach of fiduciary duty, and unjust enrichment (against all defendants). Appellants also requested a constructive trust over any wrongfully appropriated funds. Lastly, appellants alleged "alter ego/piercing the corporate veil/single business entity" among the "venture Defendants."
Appellants' Third Amended Petition contains three paragraphs—paragraphs 270 through 272—relating to personal jurisdiction over non-resident defendants. These paragraphs, which will be discussed further herein, are somewhat vague as to the extent of each appellee's contacts with Texas. However, it is clear appellants asserted that: (1) each appellee was subject to both specific and general jurisdiction in Texas; and (2) Hapsmith Development Corporation was the alter ego of each of the other Hapsmith Defendants, at least for jurisdictional purposes.
Each of the Hapsmith Defendants and Farallon filed a special appearance supported by evidence. Appellants filed a response to the special appearances, supported by evidence, and also filed objections to some of the Hapsmith Defendants' and Farallon's evidence. As discussed in more detail below, the trial court overruled appellants' objections and signed an order granting the special appearances, without issuing findings of fact.
Appellants filed this interlocutory appeal of the trial court's order. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(7) (Vernon Supp.2007). In their first issue, appellants contend the trial court erred by not sustaining their objections to appellees' evidence. In their second issue, appellants argue their allegations and evidence support a finding of both general and specific jurisdiction over appellees that meets the standards of fair play and substantial justice.
Each of the Hapsmith Defendants filed a special appearance supported by an affidavit of Frederick Nicholas. In his affidavit in support of Hapsmith Development Corporation, Nicholas stated that he was "under no legal disability," had "personal knowledge of the facts stated in this [a]ffidavit," was "authorized to execute this [a]ffidavit on behalf of Hapsmith Development Corporation," and was its chairman.
Farallon's special appearance was supported, inter alia, by a supplemental affidavit from Mark Wehrly. In it Wehrly
Appellants objected to Nicholas's affidavits, asserting they were not made on personal knowledge. See TEX.R. CIV. P. 120a(3) (requiring affidavits offered in special appearance "shall be made on personal knowledge"). Appellants also objected to Wehrly's supplemental affidavit because it failed to affirmatively show how he had personal knowledge. See TEX.R. CIV. P. 120a. The trial court overruled appellants' objections. In their first issue, appellants contend the trial court erred in overruling their objections.
According to appellants, Nicholas's deposition testimony shows that: (1) he had no personal knowledge because he admitted his memory was poor; and (2) certain matters, addressed in both Nicholas's deposition and affidavits, were not performed by Nicholas himself, but by the president of the Hapsmith Development Company (Jeffrey Oliphant), and therefore Nicholas did not have personal knowledge of them.
However, the requirements of rule 120a are met by an affidavit that is clear, definite, and unequivocal, and unless there is something in the affidavit itself to indicate to the contrary, we accept it for what it appears on its face to be. See Omniplan, Inc. v. New Am. Dev. Corp., 523 S.W.2d 301, 304 (Tex.Civ.App.-Waco 1975, no writ) (rejecting argument that testimony of affiant at special appearance hearing showed hearsay basis of affidavit, citing Red Star Fertilizer Co. v. Zuck, 267 S.W.2d 894, 895 (Tex.Civ.App.-Galveston 1954, no writ)); see also Grotjohn Precise Connexiones Int'l, S.A. v. JEM Fin., Inc., 12 S.W.3d 859, 866-67 (Tex.App.-Texarkana 2000, no pet.) (affidavits "stat[ing] unequivocally that the affiants have personal knowledge of all the facts" adequate); Jackson T. Fulgham Co. v. Stewart Title Guar. Co., 649 S.W.2d 128, 130 (Tex.App.-Dallas 1983, writ ref'd n.r.e.) (affidavit made on personal knowledge when affiant's statement he is "vice-president and agent" of company shows how he learned or knew of facts).
The admission and exclusion of evidence is subject to trial court's sound discretion. See State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex.2001). We conclude the trial court did not abuse its discretion in overruling appellants' objections to the affidavits based on Rule 120a.
In their second issue, appellants assert the trial court erred by "failing to rule that Appellees had not met their burden to negate all possible grounds for jurisdiction" and by "granting Appellees' Special Appearances against the great weight of the evidence submitted into the record[.]" Each appellee responds that appellants did not allege any jurisdictional facts as to it— i.e., any specific, purposeful act by the defendant through which it can be said to have sought a benefit by "availing itself of the jurisdiction." See Michiana, 168 S.W.3d at 785. As a result, each appellee
Appellants alleged that the court had both specific and general personal jurisdiction over the Hapsmith Defendants—and in particular Hapsmith Development Corporation —and over Farallon. Appellants' operative pleadings contain three paragraphs —Paragraphs 270 through 272—related to the court's exercise of personal jurisdiction over the nonresident defendants. These paragraphs are set forth below in their entirety.
We have reviewed appellants' operative pleadings in their entirety, with particular
Before we analyze each defendant's contacts with the forum, however, we must first address appellants' alter-ego argument with respect to the Hapsmith Defendants. In paragraph 272, appellants alleged that Hapsmith Development Corporation was the alter-ego of the other Hapsmith Defendants. On appeal, appellants argue that Hapsmith Development Corporation was the general partner of the other Hapsmith Defendants and "the Hapsmith entities clearly were `fused' for the purposes of the Supermall transaction."
As noted earlier, appellants bear the burden of proof with respect to any jurisdictional veil-piercing theory. PHC-Minden, L.P., 235 S.W.3d at 173. Further, absent findings of fact, we assume the trial court found against appellants on this issue, provided such an implied finding is supported by the evidence. See BMC Software Belgium, 83 S.W.3d at 795.
In his deposition, Nicholas testified there was no ownership interest between Hapsmith Development Corporation and The Hapsmith Company. Nicholas also stated that the Hapsmith Company "didn't own anything." The Hapsmith Defendants' brief acknowledges that the Hapsmith Development Company is the general partner of the Hapsmith limited partnerships. But appellants do not direct us to evidence in the record that Hapsmith Development Corporation controlled the internal business operations and affairs of
We now turn to the evidence of each appellees' respective contacts with Texas. We will review any evidentiary disputes as to that appellee's contacts and determine whether the evidence supports an implied finding against the existence of a particular jurisdictional fact. See BMC Software Belgium, 83 S.W.3d at 794. We then review de novo the trial court's decision that the exercise of personal jurisdiction over that appellee does not comply with federal due-process requirements. See Moki Mac, 221 S.W.3d at 575; BMC Software Belgium, 83 S.W.3d at 794.
Appellants contend the evidence shows "significant and intentional contacts with the state of Texas" by the Hapsmith Defendants spanning more than ten years that establish contacts sufficient to support specific and general jurisdiction. We examine the record regarding these purported contacts with respect to each of the Hapsmith Defendant in a (generally) chronological order.
Appellants argue that Hapsmith Development Corporation's contacts included a meeting in Texas between Hapsmith representatives and Vogelbacher concerning the Washington Supermall project. Nicholas testified he and Oliphant met Vogelbacher and his attorneys in Dallas in the late 1980s or early 1990s. The purpose of the meeting was to meet the Rosche Entities' representatives, determine "what their business was . . .," and determine whether Vogelbacher and the Rosche Entities were interested in the Washington Supermall. According to Nicholas, the Texas meeting "was to meet with them and see what kind of people they were and they wanted to see who we were. . . ." But Nicholas did not recall discussing any business relationship at the Dallas meeting, though such a relationship was discussed later at a meeting in Germany. Moreover, Nicholas also testified the meeting occurred in Dallas because Vogelbacher was coming to the United States and his attorneys were located in Dallas.
Appellants contend that Hapsmith Development Corporation conducted negotiations with the Texas-based Rosche Entities through "numerous fax and telephone communications" that required legal opinions from Texas lawyers and other documents sent by the Rosche Entities' attorneys in Dallas to the California offices of Hapsmith Development Corporation, The Hapsmith Company, and their California attorneys. However, the exchange of communications between Texas and California in the course of developing and carrying out the partnership agreement is in itself insufficient to constitute purposeful availment. See Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir.1986); Blair Commc'ns, Inc. v. SES Survey Equip. Servs., Inc., 80 S.W.3d 723, 730 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Similarly, communications with the Rosche Entities' Texas attorneys and receipt of legal opinions do not establish purposeful availment. Shell Compania Argentina de Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 839 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).
Appellants also contend that, as part of Hapsmith Development Corporation's due diligence, its agents performed UCC investigations in Texas. It is undisputed that searches of Texas UCC databases for information on WSI and certain Rosche Entities in Texas were conducted. However, such due diligence does not show purposeful availment. See id. at 838.
Appellants argue that Hapsmith Development Corporation became a general partner in Texas-based entities, including RHD and, later, Hapsmith-Rosche Washington partnership (which was to exercise an option on Phase II of the Washington Supermall). But merely contracting with a Texas corporation does not satisfy the minimum contacts requirement. See Burger King Corp., 471 U.S. at 478-79, 105 S.Ct. 2174; Reef Exploration, Inc., 84 S.W.3d at 837; TeleVentures, Inc. v. Int'l Game Tech., 12 S.W.3d 900, 908 (Tex.App.-Austin 2000, pet. denied). Moreover, a partnership's contacts are not imputed to partners with no individual contacts with the forum state. See Salem Radio Representatives, Inc. v. Can Tel Mkt. Support Group, 114 F.Supp.2d 553, 557 (N.D.Tex.2000). The contacts of each defendant must be considered, not the aggregated contacts of defending parties. See Rush v. Savchuk, 444 U.S. 320, 331-32, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980). Accordingly, the fact of partnership alone is insufficient to show purposeful availment.
Second, appellants argue that certain agreements required Hapsmith Development Corporation to give notice in Texas. However, the two documents to which appellants refer—the Voting Trust Agreement and the First Amended Partnership Agreement of RHD—show that Hapsmith Development Corporation was to receive notices from separate entities. Moreover, both of these documents provided they were governed by the laws of the state of Delaware.
Another document providing for notice was WSI's Second Amended and Restated Limited Partnership Agreement. This agreement provided it was to be governed by Delaware law that that WSI's general partner—RHD—"shall be solely responsible for the overall management and control of [WSI]'s business and affairs. . . ." The agreement provided for an advisory council, which included representatives of three of appellants' Texas limited partnerships and other categories of investors, and for notice to this council by the general partner —RHD—not Hapsmith Development Corporation. Thus, the record shows no dispute as to any act by Hapsmith Development Corporation in Texas related to notices. Moreover, it is undisputed that a purpose of the Second Amended and Restated Limited Partnership Agreement of WSI was to finance the development of a project in the state of Washington. Place of performance of the contract and specifying that the agreement was governed by Delaware law are factors that weigh against purposeful availment in Texas. See Burger King Corp., 471 U.S. at 482, 105 S.Ct. 2174; Blair Commc'ns, Inc., 80 S.W.3d at 730.
We have reviewed the evidence relied on by appellants and have concluded either that there is a factual dispute as to a jurisdictional fact, thus supporting an implied finding against such fact, or that the evidence relates to a contact that is not the type of contact that shows Hapsmith Development Corporation purposefully availed itself of the benefits and protections of Texas law.
Nicholas's affidavit in support of Hapsmith Development Corporation's special appearance states, in part, that it: (1) was a California corporation; (2) did not maintain a registered agent for service of process in Texas, nor was it required to maintain a registered agent for service of process in Texas; (3) did not maintain a place of business in Texas; (4) had no employees in Texas; and (5) did not own or lease real property in Texas. These undisputed jurisdictional facts support the trial court's implied finding that Hapsmith Development Corporation lacked the minimum contacts sufficient to support either specific or general jurisdiction. Accordingly, the trial court properly concluded that it lacked personal jurisdiction over Hapsmith Development Corporation. See Michiana, 168 S.W.3d at 785.
First, appellants argue The Hapsmith Company improperly received money from WSI as a development fee in connection with the Washington Supermall transaction. However, there is no evidence this money, or any other payment to The Hapsmith Company, was received in Texas. And even if it were, such receipt of money is insufficient to show purposeful availment. See Holt, 801 F.2d at 778; U-Anchor Advertising, Inc., 553 S.W.2d at 763; TeleVentures, Inc., 12 S.W.3d at 910. Receiving payment from WSI, a Delaware limited partnership with offices in Texas, does not show conduct by The Hapsmith Company purposefully directed towards Texas. See Case v. Grammar, 31 S.W.3d 304, 310 (Tex.App.-San Antonio 2000, no pet.) (no purposeful direction towards Texas when California residents borrowed money from Nevada limited partnerships funded by limited partners in Texas), disapproved of on other grounds by BMC Software Belgium, 83 S.W.3d at 794 n. 1.
Second, appellants point to a letter from The Hapsmith Company in California establishing a priority of payments from WSI if the Glimcher deal was completed. As we noted above, the exchange of communications between Texas and California in the course of developing and carrying out the partnership agreement is in itself insufficient to constitute purposeful availment. See Holt Oil & Gas Corp., 801 F.2d at 778; Blair Commc'ns, Inc., 80 S.W.3d at 730. These are not the types of contact
In his affidavit in support of The Hapsmith Company's special appearance, Nicholas stated in part that The Hapsmith Company: (1) was a California corporation; (2) did not maintain a place of business in Texas; (3) had no employees in Texas; did not own or lease real property in Texas; (4) and was qualified to do business in Texas in 1985, but forfeited its Certificate of Authority in January 1988, and had not engaged in any business in Texas subsequent to January 1988. These undisputed jurisdictional facts support the trial court's implied finding that The Hapsmith Company lacked the minimum contacts sufficient to support either specific or general jurisdiction. Accordingly, the trial court properly concluded that it lacked personal jurisdiction over The Hapsmith Company. See Michiana, 168 S.W.3d at 785.
Appellants argued that two of the Hapsmith Limited Partnerships—Hapsmith Properties III, L.P. and Hapsmith Interests IV, L.P.—improperly received "redemptions" or payments as limited partners of WSI, when none of their Texas limited partnerships received any payments at all. In the record before us, there is no evidence this money, or any other payments to any Hapsmith limited partnership, was received in Texas. And again, receipt of money is insufficient to show purposeful availment. See Holt, 801 F.2d at 778; U-Anchor Advertising, Inc., 553 S.W.2d at 763; TeleVentures, Inc., 12 S.W.3d at 910. This is not the type of contact that shows the Hapsmith limited partnerships purposefully availed themselves of the benefits and protections of Texas law sufficient for specific or general jurisdiction. See BMC Software Belgium, 83 S.W.3d at 798.
In his affidavits in support of each of the Hapsmith limited partnerships' special appearances, Nicholas stated in part that each defendant: (1) was a California limited partnership
Appellants argue the evidence shows that Farallon's contracts regarding the letter of credit established minimum contacts. There was testimony that the negotiations regarding the letter of credit were conducted primarily by telephone
Appellants also rely, as they do in regard to Hapsmith Development Company, on UCC searches in Texas. As noted above, evidence of UCC searches does not show purposeful availment. See Holt, 801 F.2d at 778; TeleVentures, Inc., 12 S.W.3d at 910. There is also evidence that Farallon's secured interest in the Supermall project was perfected by UCC filings in Texas. But filing UCC financing statements in Texas does not show purposeful availment. See id.; accord IRA Res., Inc. v. Griego, 161 S.W.3d 248, 257-58 (Tex. App.-Corpus Christi 2005) (citing Goehring v. Superior Court, 62 Cal.App.4th 894, 73 Cal.Rptr.2d 105, 113 (1998)), rev'd on other grounds, 221 S.W.3d 592 (Tex.2007) (per curiam).
Appellants also rely on evidence showing that documents, including contracts and legal opinions, were sent by WSI's Texas attorneys and received by Farallon's California attorneys. However, as we concluded above, the exchange of communications between Texas and California in the course of developing and carrying out the partnership agreement is in itself insufficient to constitute purposeful availment, as are communications among attorneys and receipt of legal opinions from Texas attorneys. See Holt Oil & Gas Corp., 801 F.2d at 778; Reef Exploration, Inc., 84 S.W.3d at 839; Blair Commc'ns, Inc., 80 S.W.3d at 730.
Appellants argue that certain of the documents require notice be provided to Texas entities by parties to those agreements, including Farallon. However, the four documents on which appellants rely contain general notice provisions and do not single out Farrallon as providing any notice.
Appellants also argue that over the years Farallon made numerous investments in Texas through FCM, its investment advisor, or one of FCM's agents. There was evidence that Farallon was an investment entity that has no employees, officers or directors. It had approximately 450 limited partner investors. Wehrly stated:
Wehrly testified that Farallon did not purchase or sell "physical tangible assets";
Appellants also argue that Foothill Capital Corporation, which has not contested jurisdiction in this matter, acted as agent for Farallon. Appellants cite no authority that an entity's mere failure to contest personal jurisdiction is sufficient to attribute that entity's actions to a principal. In addition, even if documents, as noted above, stated that Foothill Capital Corporation was acting as the agent for the LC providers, nothing in the record shows contacts by Foothill Capital Corporation that were different from those by Farallon, which we have decided above do not show purposeful availment.
We have reviewed the evidence relied on by appellants and have concluded either that there is a factual dispute as to a jurisdictional fact, thus supporting an implied finding against such fact, or that the evidence relates to a contact that is not the type of contact that shows Farallon purposefully availed itself of the benefits and protections of Texas law. In his supplemental affidavit in support of Farallon's amended special appearance, Wehrly stated that Farallon: (1) was a California limited partnership with its principal place of business in California; (2) did not maintain a registered agent for service in Texas; (3) did not have, and never had, any employees in Texas; (4) did not maintain, and never maintained, an office in Texas; (5) for the last ten years, had followed all the necessary organizational formalities to maintain its limited partnership status under California; and (6) had never held a board of directors, officers, or other official meeting in Texas. In his deposition, Wehrly stated that Farallon did not own any physical property and all its business operations were in California. Wehrly also testified that Farallon had bank accounts only in California and New York. These undisputed jurisdictional facts support the trial court's implied finding that Farallon lacked the minimum contacts sufficient to support either specific or general jurisdiction. Accordingly, the trial court properly concluded that it lacked personal jurisdiction over Farallon. See Michiana, 168 S.W.3d at 785.
For the reasons set forth above, we conclude appellees negated the existence of contacts between each of them and the State of Texas sufficient to support the exercise of general or specific personal jurisdiction over them. Thus, we resolve appellants' second issue against them. Because of our disposition of appellants' issue as to minimum contacts, we need not address whether the exercise of such jurisdiction would have comported with traditional notions of fair play and substantial justice. See BMC Software Belgium, 83 S.W.3d at 795. We affirm the trial court's order granting special appearances.
