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274 S.W.3d 172, *; 20OB Tex. App. LEXIS 7236, **

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CHOICE AUTO BROKERS, INC.. Appellant v. CARL DAWSON. Appellees

NO. 01-07-01035-CV

couRT oF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

274 S.W.3d 172;2OAB Tex. App. LEXIS 7236

September 25, 2AA8, Opinion Issued

PRIOR HISTORY: Ix*1] On Appeal from the 152nd District Court, Harris County, Texas. Trial Court Cause No. 2006-62501. Trial Judge: Hon. Kenneth P. Wise.

c&sffi st"tfr,{M&RY

PR.OCEDURAL POSTURE: Appellee buyer sued appellant seller for damages, alleging that the seller had not been truthful about the age and condition of a car he bought from the seller on an Internet auction site. The seller filed a special appearance, alleging that it did no business in Texas and was, therefore. not subject to personal jurisdiction in Texas. The 152nd District Court, Harris County, Texas, denied the seller's special appearance. The seller appealed.

OVERVIEW: On review, the seller contended the trial court erred in denying its special appearance. The appellate court agreed, finding that the record showed that the buyer initiated the conversations with the seller and received the vehicle in Florida. There was no evidence that the seller made misrepresentations to the buyer in Texas. In fact. the record showed that the car initially malfunctioned while outside of Texas as well. Nothing in the record suggested that the seller's potential liability arose from or was related to an activity conducted within the forum. Therefore, specific jurisdiction did not exist. As to general jurisdiction. the record showed that the seller sold 43 vehicles to Texas purchasers, but there was no indication that the seller targeted Texas customers in any way. Nothing in the record showed that the seller maintained a physical presence in Texas, performed any business activities in Texas, or otherwise structured its business affairs to benefit from the Texas laws. Thus, the seller's activities did not establish a pattern of continuing and systematic activity sufficient to support the exercise of personal jurisdiction in Texas.

OUTCOME: The trial courl's order denying the seller's special appearance was reversed and judgment was

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rendered dismissing the case against the seller for lack of personat jurisdiction.

CORE TERi{S: website, personaljurisdiction, customer, nonresident, internet, resident, bid, special appearance, auction, drive, minimum contacts, advertising, long-armn email, visitors, forum state, general jurisdiction. purposeful, systematic. seller, confer, common knowledge, judicial notice, highest bidder, factual disputes, exercise of jurisdiction, sufficient to support, purposefully avails, privilege of conducting activities, total sales

LEHfiSzuHXI$G ruf;ADri{ST'E$ - t{ide Civil Procedure ) Jurisdiction > Personal lur-isdiciion &. ifi Rern Actions > In personam Actio*s > General Overview f;,,

Civrl Proceslu;re > Appreals > Standarcls si R.eirieruv > De Novo F.eview d-*,

$$tr..t 6"fhs existence of personal jurisdiction is a question of law reviewed de novo by the appellate court. However, this question must sometimes be preceded by resolving underlying factual disputes. When the trial court does not issue fact findings, the appellate court presumes that the trial court resolved all factual disputes in favor of its ruling. Mcre Lit<e This t-ieadnore

t-livil Pruceclure ) -lur-isdiction > persofia! ,lurisdictlcn & in P.erri Aet!ons > Constitutionnl l-imits q.,

Civil Prqcedure > lurisdietion > Personai luriscjiction & in Rern,qctions > In Pei'sonaili Aciions > t-or'rg-Arm lur-isdictiorr t,,

rc#;eJsx3s courts nray assert personaljurisdiction over a nonresident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards. Tex. Civ. Prac. & Rem. Cr:de Ann. $E 17.041-.045 (2008). The long-arm statute allows Texas courts to exercise jurisdiction over a nonresident defendant that "does business" in the state. Tex, Cir,. Prac" & Renr" C*de n"ln, 5 17.CI42 (2008). The Texas Supreme Court has held that $ 17.il4.2's broad language extends Texas courts'personal jurisdiction as far as the federal constitutional requirements of due process will perrnit. Mr:re Like IhiE Headnote I Shepardize; Restrict By i-leadrrote

Civii Prr:ceclirre ) Juri;drction ) Persernal -lr-rrisclicticn & trn Rern Actions > In Personarn Acticns > Lorg-Arrn iurr-isclietion s.,

Evielence > Pr+cedurel Consiclei-ations > Birrclens cf Fror:i') Geirerai Overvierar t.

r*rd""glnitially, the plaintiff bears the burden of pleading allegations sufficient to bring a nonresident defendant within the terms of the Texas long-arm statute. However, when a nonresident defendant files a special appearance, that defendant assumes the burden of negating all bases of personal jurisdiction that the plaintiff has alleged. More Like Thls l-ieadnote

Civil Flrnceciure > lurisdiction > pe!-sclnal lr:risdiclion & 1n Rern Actions ) in Frerso*am Actions > Minirnurfi Contacts t..

C!r,il Proeeclure > llirrsrlictioi: ) Perscnal ,.lurisr.lietion & 1n Rern Actions > In Fersonam,Actions > Ftrrpo:-"'i Ava.imerrt t,

P{}vd*. Personal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the 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. A nonresident defendant's minimum contacts must derive from purposefui availment: a nonresident defendant must have "purposefully availed" itself of the privileges and benefits of conductinE business in the foreign jurisdiction to establish sufficient contacts with the forum to confer personal jurisdiction. An act or acts by which the defendant purposefully avails itself of the privilege of conducting activities in Texas and thus invokes the benefits and protections of Texas law, constitutes

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sufficient contact with Texas to confer personal jurisdiction. liore Like This rieadnore IShepardirc: Reslrici By Headnr:te

Civil Prr;cerjur* ) ltrr!:diction > Per!6nal .ir"irisrjiction & in R.enr Acfior.rs > ln Personarc Actions > purpr:sefui Ar,,aiinrent t, Fr'tr's+The court considers three elements of purposeful availment. First, the court considers only the

defendant's own actions, not those of the plaintiff or any other third party. The unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum state. The apptication of that rule will vary with the quality and nature of the defendant's activity, but it 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. More Like Tiris Headrrote I Sltepartlite : F.estrict Ey ileaelnfite

Civil PrccedLrre > lurisdieiion ) P*rsorlai Jur.isdictiorr & In Rem Actioris > Ll Fei'sonarn Aci;ons ) Purn*seful fiy6ilpparri- 4-

#rtc{t*9,In the context of the court's jurisdictional analysis, the activities must be purposeful, not random, isolated, or fortuitous. it is the quality rather than the quantity of contacts that is determinative. The defendant must seek some benefit. advantage, or profit by virtue of its activities in the proposed forurn state, because this element is based on the notion of implied consent. Mare Like l"his Fieidn'l[e: | 5!;ey:ardizer Restri(t Sy Headnote

ti",ril Procedltre > lirri:;dirtion > Per5{lnai lurlsdiction & 1n F,eni Aciinils > In Personarn Acticns } fiinimum Contacts ft.,

Clvrl Proceelure >..iLri-isrjiclion > Personal lurisdjctir:n & In R.r+rn Actrons > In Persc'nanr Actions > 5ut:stantial C*ntacts {,,

,'+ru;r+The court's jurisdictional analysis is divided into general and specific personal jurisdiction. General jurisdiction will attach when a defendant's contacts in a forum are continuous and systematic permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. To support generaljurisdiction, the defendant's forum activities must have been "substantial," which requires stronger evidence of contacts than for specific personal jurisdiction. More i-rke This ueadnote I 5 hep a rcii ze : Restric! By l-ie;:clrr:le

Civil Procedui'e >.lLrri:;dicli-nn > P*rlonal Jurisdiction & ifl Rerfl Artions > In perscfifrrn Actiofls > l'4!riimum Contacts {.,

fc$v$+,Specific jurisdiction lies when the defendant's alleged liability arises from or is related to an activity conducted within the forum. For a nonresident defendant's forum contacts to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation. This reguirement assesses the strength of the necessary connection between the defendant, the forum, and the litigation. Irlo;'e Ltke t"his Headnore

fon-rpuier &. Internel Lar,v ) ulvil Adtions ) .lurisdicilori :> Lcng-Arrn lurisdiction 4i*

hlfl#$*Internet usage is divided into three categories, using a sliding scale, for the purposes of establishing personal jurisdiction. At one end of the scale are websites clearly used for transacting business over the Internet, such as entering into contracts and knowing and repeated transmission of files of information, which may be sufficient to establish minimum contacts with a state. On the other end of the spectrum are "passive" websites that are used only for advertising over the Internet and are not sufficient to establish minimum contacts even though they are accessible to residents of a particular state. in the middle are "interactive" websites that allow the "exchange" of information between a potential custorner and a host computer. lurisdiction in cases involving interactive websites is determined by the degree of interaction. i\lore LikeThis Heednoie I Shepardrze: Restrici By H€adnote

#Available Briefs and Other Documents Related to this Case:

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J-X Cciurr of' $,i:i-reais Brief{s)

e${JfSSffiL: For APPELLAI\T: ilavrrJ C" nlolmes *, Leylnon L. Sr:iornon *, Houston, TX.

For APPELLEE: Carl Dawson, Houston, TX.

.3L3ffiGE$: Panel consists of Chief Justice Ftadack s Erd Justices ,\uchia - and lliEley -.

OPINION BY: Sam Nuchia -

*$?lxqssfq

l*L747 In this accelerated, interlocutory appeal. appellant, Choice Auto Brokers, Inc. ("CAB"), challenges the trial court's order denying its special appearance.

We reverse and render.

Background

CAB is a Florida corporation that sells automobiles using both its own website and the internet aucticn siie, eB;*y. * I Ix175] Dawson is a Texas resident, who purchased an automobile from CAB. Dawson found the autornobile on CAB's website, which had a hyperlink to eBay to enable visitors to bid on vehicles through the online auction site. Because the website required that bidders who lacked a certain bidding history on eBay call before placing a bid, Dawson called CAB. He later purchased the car through eBay using the auction-ending function, "Buy It lriow." Dawson's father took receipt of the car in Florida on Dawson's behalf. Due to mechanical problems, Dawson's father was unable to drive the car to Texas, [*x2] and Dawson had lt shipped to Texas,

FffiSTruffTHS

1 "The usual eBay auction process is, after almost a decade in existence, now a matter of common knowledgeof whichtheCourttakesjudicial notice.Seef,oxv. Ut/esf Palmfreach,3E3F"2dl"89, 194(sih Cir.1g67) ('The most frequent application of the judicial notice doctrine is common knowledge.') A seller advertises an item on the eBay interface, using a template. The seller establishes a rninimum initial bid and a deadline for the item's auction to end. Buyers may then bid for the item through the eBay interface, which for each item posts the current bid and the time remaining. At the expiration of the auction period, the highest bidder wins the item. EBay puts the seller and winninE buyer in contact by email to arrange payment and shipping.".4rilo,: Ic?p85, .xrr. rr. weaver, ttJo civ" 3;il5-cv-1693-li, 2005 U.S, Dist. i-EXIS 2931":, 1il05 \lll- 1i99706, al- *2 {irJ.D. Te>i, Nctv" 23,2$fi5}'

Dawson sued for damages under the DTPA, alleging that CAB had not been truthful about the car's age and condition. Dawson argued that jurisdiction was proper because: (1) CAB had previously sold 43 vehicles to Texas residents over a three-year period; (2) CAB transported or arranged for the transportation of [x*3] 19 of these to Texas; (3) CAB's website states in more than one place that a bid on a vehicle is a

tegatty linOing contract. In addition, CAB's website links directly to eBay, where customers can bid on the vehicles advertised on CAB's website.

CAB filed a special appearance, alleging that it does no business in Texas and was, therefore, not subject to personal jurisdiction"in Texas. CAB stipulated that: (1) it maintained a website at the time of the sale; (2) visitors to its website could view pictuies and specific details of vehicles it was cffering for sale; (3) via the website, visitors could schedule a test drive of the vehicles; and (4) via the website, visitors could request additional information. CAB also provided printouts as exemplars of how the website looked at the tirne of the

sale. In an affidavit attached to Defendant's Second Amended Special Appearance, Jean-Luc Ferrigno, the

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president of CAB, testified that: (1) CAB is a Florida corporation that does no business in the State of Texas; (2) CAB has no offices, employees, or facilities in Texas. nor does CAB own any property in Texas; (3) CAB does not engage in advertising that specifically targets Texas residents, as Ixx41 opposed to the residents of any other state; (4) CAB's advertising consists of paying a company that promoles vehicles for sale on behalf of numerous clients through internet listings that do not target the residents of any particular state; (5) unless otherwise requested by a client, the place of delivery is Florida; (6) CAB offers some of its products for sale through eBay and provides a link to eBay from its web page; (7) customers cannot purchase products frym CAB through CAB's_website; (S) customers can call CAB directly to negotiate a sale over the telephone;(9) the "Make an Offer" ftinction on the CAB website sends an email to CABI (10) in response to such an email, CAB calls the customer to discuss a potential sale; (11) CAB does not ship vehicles to Texas but will arrange for transportation outside of Florida through a third party; (12) a customer can request a test drive through the website, but the test drive must occur in Florida; and (13) CAB provides no warranties.

The trial court denied CAB's special appearance, and CAB timely appealed.

Standard of Review

e{nx"E-615u existence of personaljurisdiction is a question of law reviewed de novo by this Court. BMC Softtryare Belg., N.V. v. Marchand, S3 5.W,3d 789 (Tex. 2002). [*x5] However, this question must sornetimes txL767 be preceded by resolving underlying factual disputes. Id. at 794. When, as here. the trial court does

not issue fact findings, we presume that the trial court resolved all factual disputes in favor of its ruling. 4m. Type Culture Callectiano Inc. v. Coleman, S3 S.W.3d 801,806 (Tex. 2002).

Personal Jurisdiction

FrrJ26"1"ras courts may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards." fd. (citing Guardian Royal Exch. Assurancel Ltd. v. English China Clays, P.L.C.,815 S.W.2d 223, 226 (Tex. 1991)); see TEX. CIV. PR.AC. & REM. CCIDE ANN. 5g 17.041 .045 (Vernon 20OB) (Texas long-arrn statute). The long-arm statute allows Texas cou*s to exercise jurisdiction over a nonresident defendant that "does business" in the state. TEX. CIV. PIIAC. & REM. CCIDE Al\N. $ 17.A42 (Vernon 2008). The Texas Supreme Court has held that "section L7.A42's broad language extends Texas courts' personaljurisdiction as far as the federal constitutional requirements of due process will permit." 8!4C Saftware, S3 5.W.3d at 795.

trtrS$Initially, Ix*6] the ptaintiff bears the burden of pleading allegations sufficient to bring a nonresident defendant within the terms of the Texas long-arm statute. Am. Type Culture Collectian, 83 S.W.3d at 807. However, when a nonresident defendant fites a special appearance, that defendant assumes the burden of negating all bases of personaljurisdiction that the plaintiff has alleged. Id.

#ru4EPersonal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantialjustice. Id. at 806 (citing Int'l Shoe Ca. v. Washington, 325 U.5. 3i0, 316, 66 S" et. 1"54, l-58, 9Cl L. Ed. 95 (1945)). A nonresident defendant's minimum contacts must derive from purposeful availment: a nonresident defendant must have "purposefully availed" itself of the privileges and benefits of conducting business in the foreign jurisdiction to establish sufficient contacts with the forum to confer personal jurisdiction. Id. (citing Burger King Corp. v. R.udzewicz,471 U.S. 462, 4V4-76, 105 5. Ct. 2!74,2183-84,85 L. Ed. 2d 528 (1985)); Xenas Yuen v. Fisher, 727 S.W.3d 193, 200 (TeN. App.--Hor-rstcn [lst Dist.] 2007, rro pet.). lx*77 An act or acts "by which the defendant purposefully avails itself of the privilege of conducting activities" in Texas and "thus invok[es] the benefits and protections" of Texas law, constitutes sufficient contact with Texas to confer personal jurisdiction. ftlichiana Easy Livin'Country, Inc. v. Hoiten, 168 5.W.3d 777,7*4 (Tex.2005) (quoting Hansan v' D*nckla,357 U.5. 235,253,78 5. Ct. L278,1240, 2 L. Ed. 2d 12E3 (1958))'

ffNs:Fyy" considerthree elements of purposeful avaitment. See Michiana Easy Livin'Country, 168 S,W.3d at 785; see also First Oil PLC v. ATP 0/ & Gas Corp", No. 01-07-00703-CV, 264 5.W.3d V67,2AA8 Tex. App. tEXiS 3859, 2008 WL 2186781", at * L2-3 (Tex. App.--Houston [1st Dist.] May 22,2008, no pet.). First, we

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consider only the defendant's own actions, not those of the plaintiff or any other third party. Michiana Easy Livin'aountry, 1"68 5.W,3cj at 785; First OilpLC 2008 Tex. App. LEXiS 3859, 2008 WL 2186781', at x12; see also tJ-Anchar Adver., !nc. v. Burt, 553 5^W,2d 76A,762-63 (Tex. 197V) (quoting l'lanson, 357 U.S. atZ53, 78 5, Ct. at l-240 (1958) ("The unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum State. The application txt777 of that rule will vary with the 1x*91 quality and nature of the defendant's activity, but it 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.")).

Second. #{trsry15" activities must be purposeful, not random, isolated, orfortuitous. Michiana Easy Livin' Country, 168 5.V'/.3cJ at 785; First Oil PLC,2OO8 Tex. App. LEXiS 3E59, 2008 WL 2185781, at +12. "It is the qualityratherthanthequantityof contactsthatisdeterminative." FirstOil PLC,2AAB Tex. App. LEXIS 3859, 2008 WL 2786781, at *12 (emphasis in original). Third, the defendant must seek some benefit, advantage, or profit by virtue of its activities in the proposed forum state, because this element is based on the notion of implied consent. Michiana Easy Livin'Country, 168 S.W.3d at 785; First Oi! PLC,2AAB Tex. App. LEXIS 3859, 2008 WL 278678L, at *12.

ffrurSgurjurisdictional analysisisfurtherdividedintogeneral andspecificpersonaljurisdiction.CsR, l-td.v. Link,925 S.W.2d 5-q1, 595 (Tex. 1995). Generaljurisdiction will attach when "a defendant's contacts in a forum are continuous and systematic permitting the forum to exercise personal jurisdiction over the defendant even if the Ixxgl cause of action did not arise from or relate to activities conducted within the forum state." Id.la support generaljurisdiction, the defendant's forum activities must have been *substantial," which requires sironger evidence of contacts than for specific personal jurisdiction . Preussag Aktiengesellschaft v. Coleman, 15 S.W.3d 110, 114 (Tex. App"--Houston [Lst Dist.] 2000, pet. disrn'd w.o.j.)'

trruEFspecific jurisdiction lies when the defendant's alleged liability arises from or is related to an activity conducted within the forum. BMC Sofiware, 83 S,W.3d at 796. "For a nonresident defendant's forum contacts to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation." Moki Mac River Expeditians v. Drugg,221 5.W,3d 569, 585 (Tex. 2007). Tl'ris requirement assesses "the strength of the necessary connection between the defendant, the forum, and the litigation." fd.

Internet Use & Personal lurisdiction

trtr$Tlnternet usage is divided into three categories, using a sliding scale, for the purposes of establishing personal jurisdictijn . Reiff v. Roy, 115 5,W"3rL 7AA,7A5 (Tex. App.--Dallas 2003, pet. denied). ' "At [**10] tne end of the scate are websites clearly used fortransacting business overthe Internet, such as

entering into contracts and knowing and repeated transmission of files of information, which may be sufficient to establish minimum contacts with a state." fd- "On the other end of the spectrum are [x178I 'passive' websites that are used only for advertising cver the Internet and are not sufficient to establish minimum contacts even though they are accessible to residents of a particular state." Id. at 705-06. "In the middle are 'interactive, websitej that allow the 'exchange' of information between a potential customer and a host computer. Id. at 706. lurisdiction in cases involving interactive websites is determined by the degree of interaction. fd.

FOOTilIOTES

zThistestwasfirstcreatedinZippoManufaeturingCa.v.ZippoDotCom, Inc.952 F.5upp. Lll9,7L24 (W. n. Fa. 1"997), and it has been adopted in the Fifth Circuit, Mink v. AAAA Dev. LLC|, 190 F.3d 333, 336

iStt, Cir. 1"99g), and applied by many Texas courts of appeals. Se9 G1P, Iryc. v' Ghosh,251 S.W,3d 854, gZO n. 2f (fex. App.-lAustin 2008, no pet.); Karstetterv. Voss, 184 S.W.3d 396,4A4 (Tex. App.--Dallas 2006, no pet.); exia Etec. Co., Ltd. v. Treja,166 5.W.3d 839, 858 (Tex. App.--Corpus Christi 2005, no pet.); [**1U Tawnsend v. univ. Hasp.-']Unir. af Colo.,83 5.w.3d 913,97,2 (Tex. App.--Texarkana ZAAZ., pet. denied); Experirnenta! Aircraft Ass'n, Int. v. Doctor,76 5,W.3d 495,507 (Tex' App --Houston

[14th Dist.] ZAO2, no fi*t.]; Michelu. Rocket Eng'g Carp.,45 S.W.3d 658,677 (Tex. App.--Fort Worth iOOt, no pet"); iurr*unn v. Stephens, 51 S.W.3d 329,338 (Tex' App"--Tyier 2001, no pet'); Riviera

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cp*ratinq {)rsr{:" v. ilanson, 2B s,\iv"3e1 *fiH, t}:11 (I"ex. App.--Beaumcnr ?Ofin, pet. rieniecl}; Jrrues,,r. seecfi l\irr.raft c.*rp., $45 5.i/d.2{i -16';;,7'7)t {Tex. App"--$an Anl-cnji: 1gs$, pet clisr"r:, \ry.o.j.).

Discussion

CAB's website was more than a purely passive website. The website provided advertising and some interactivity, because customers were able to email CAB through the website to schedule a test drive or request additional information about the vehicle. But the website did not allow a custorner to enter into a contract or purchase a vehicle directly; rather, it routed the customer to eBay, where CAB had no control over who would be the highest bidder. Because the degree of interactivity falls between the two extrernes, we look beyond the internet activityto the degree of interaction between the parties. See narsreft*q, 184 S.!V.;1d at 4{i5.

As Jxx12l to specific jurisdiction, the record shows that Dawson initiated the conversations with CAB and received the vehicle in Florida. There is no evidence that CAB made misrepresentations to Dawson in Texas. In fact, the record shows thatthe car initially malfunctioned while outside of Texas as well. Nothing in the record suggests that CAB's potential liability arises from or is related to an activity conducted within the forum. See i1I4{" l{t;fflt,stt, 8l 5 \,V lil it 7*6; see also Mryki f4;zt /?ir",*r fxpetf iti*ns,2}1" 5"V1,r.3d at 585. Therefore, we conclude that specific jurisdiction does not exist.

As to generaljurisdiction, the record shows that CAB sold 43 vehicles to Texas purchasers. but the record does not quantify CAB's total sales. During the same time period CAB shipped, or arranged for shipping, nineteen of those vehicles to Texas. There is no indication in the record that CAB targeted Texas customers in any way. Nothing in the record shows that CAB maintained a physical presence in Texas, performed any business activities in Texas, or otherwise structures its business affairs to benefit from the Texas laws.

The Texas Supreme Court has held that an 18-year history of sales to Texas residents [**13] was insufficient to confer general jurisdiction, when Texas sales accounted for 3.5o/a of its total sales and title to the goods purchased passed outside of Texas, *\m. Typ* Cultur* d.'cl/ccflon, 83 5"W.3d Sfi1", 8*7-0S (Tex. ;0S21. In American Type Culture Collection, the defendant also purchased supplies from over 33 Texas vendors over a five-year period and sent representatives to five scientific conferences in Texas over a seven- year period. ,l"ri. at ft**. But the defendant did not advertise in Texas or maintain a physical presence in Texas. id. at 81il. It pedormed its business services outside of Texas and constructed its contracts to ensure it did not benefit from Texas laws. Id. The supreme court concluded that these factors, taken together, did not establish a pattern of continuing and systematic activity sufficient to support the exercise of personal jurisdiction in Texas. fd. ai 8*$-L0.

Likewise, we hold that CAB's activities do not establish a pattern of continuing and systematic activity sufficient to supporl the exercise of personal jurisdiction in Texas. We hold that the trial court erred in denying CAB's special appearance.

Conclusion

We reverse the trial court's order denying CAB's Ix*14] special appearance and render Ix179] judgment dismissing the case against it for lack of personal jurisdiction. The Cterk of this Court is directed to issue the mandate immediately. See Tf ,Y." R.. APp. p. r8.6.

Sam Nuchia

Justice

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