author: KEM THOMPSON FROST, Justice.

text:
    Thu Thuy HUYNH, Valley Multi-Specialty Surgery Center and Unity Outpatient Surgery Center, L.L.C., Appellants, v. Thuy Duong NGUYEN, Ha Dinh Nguyen, Loan T. Duong, Phuong Duong, Kim Nguyen Luu, and Blue Cross and Blue Shield of Alabama, Appellees.
    No. 14-04-01027-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 2005.
    Rehearing Overruled Nov. 3, 2005.

      Gregg C. Laswell, Jonathan S. Schmitt, Murry B. Cohen, Houston, Owen Stephen Jones, Friendswood, for appellants.
    Richard Abram Stewart, David G. Dur-sam, Tammy Tran, Bradley M. Kirklin, Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

KEM THOMPSON FROST, Justice.

This is an interlocutory appeal from the trial court’s order denying the special appearances of two nonresidents. We affirm in part and reverse and remand in part.

I. Factual and Procedural Background

Appellees, Thuy Duong Nguyen (“Thuy”), Ha Dinh Nguyen (“Ha”), Loan T. Duong (“Loan”), Phuong Duong (“Phuong”), and Kim Nguyen Luu (“Kim”) (collectively, “the Patients”), brought suit against appellants, Johnny Huynh (“Johnny”), a Texas resident, Thu Thuy Huynh (“Thu”), a Texas resident, and Valley Mul-ti-Specialty Surgery Center (“Valley”), a California corporation. The Patients allege that Johnny, Thu, and Valley recruited them in Houston, Texas, to undergo allegedly unnecessary and improperly billed medical procedures at Valley’s clinic in California. The Patients assert that Johnny, Thu, and Valley conspired to defraud insurance companies for allegedly unnecessary diagnostic tests and cosmetic surgeries that allegedly were fraudulently coded and billed as necessary medical procedures covered by insurance.

The Patients allege that Johnny and Thu, acting as agents or employees of Valley, offered them cosmetic surgery at prices substantially below the market rate. According to the Patients, while still in Texas, the Patients would pay Johnny and Thu in cash for their cosmetic surgeries. The Patients would fly to California, and Johnny and Thu would meet them at the airport and transport them to Valley’s clinic. At the clinic, the Patients were allegedly induced by Johnny, Thu, and other representatives of Valley to undergo unnecessary diagnostic tests. The Patients assert that, without their knowledge, their insurance companies were billed or over-billed for these tests. The Patients also claim they were induced to sign various documents, authorizations, and assignments of insurance benefits. The Patients assert the doctors, surgeons, and medical providers received payment from the Patients’ insurance companies through the assignment of benefits and then shared these allegedly ill-gotten proceeds with Johnny, Thu, Valley, and other surgeons. The Patients assert claims based on alleged common law fraud, violations of the Texas Deceptive Trade Practices Act, negligent misrepresentation, civil conspiracy, and tortious interference.

Thu and Valley filed special appearances contesting personal jurisdiction. Blue Cross and Blue Shield of Alabama (“Blue Cross”), an Alabama corporation which is Loan’s and Kim’s insurer, filed a petition in intervention, naming Unity Outpatient Surgery Center, L.L.C. (“Unity”), a California corporation, as a defendant. Blue Cross asserts that it was a victim of the foregoing alleged conspiracy and fraudulent scheme. According to Blue Cross, Johnny, Thu, Valley, and Unity conspired to defraud consumers and health insurance companies. Specifically, Blue Cross alleges that it was improperly billed and has been required to pay over $140,000 for allegedly unnecessary diagnostic tests performed on Loan and Kim and for operations from doctors whom they never visited and whom they never authorized to perform any medical operations on them. In response to Blue Cross’s petition in intervention, Unity filed a special appearance contesting personal jurisdiction.

After a hearing, the trial court denied the special appearances of Thu, Valley, and Unity. In this interlocutory appeal, Valley and Unity challenge the trial court’s jurisdictional ruling.

II. STANDARD OF REVIEW

Whether Valley and Unity are subject to personal jurisdiction in Texas is a question of law subject to de novo review. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). The trial court did not issue any findings of fact or conclusions of law. Therefore, all facts necessary to support the trial court’s ruling and supported by the evidence are implied in favor of the trial court’s decision. Id. at 795. Parties may challenge the legal and factual sufficiency of these implied factual findings. Id. In conducting a no-evidence analysis, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the sole judge of the credibility of the witnesses and the weight of their testimony. See id. at 819.

When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. GTE Mobilnet, 61 S.W.3d at 616.

III. Issues and Analysis

Valley and Unity each challenge the trial court’s implied findings of specific and general jurisdiction and its denial of their special appearances. The Texas long-arm statute governs Texas courts’ exercise of jurisdiction over nonresident defendants. Tex. Civ. PRAC. & Rem.Code Ann. §§ 17.041-.045 (Vernon 1997). It allows courts to exercise personal jurisdiction as far as the federal constitutional requirements of due process will permit. See BMC Software, 83 S.W.3d at 795. Thus, we rely on precedent from the United States Supreme Court and from other federal courts, as well as Texas decisions, in determining whether a nonresident defendant has shown that the exercise of personal jurisdiction violates federal due process guarantees. Id.

Personal jurisdiction over a nonresident defendant is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. Id. A nonresident defendant that purposefully has availed itself of the privileges and benefits of conducting business in Texas has sufficient contacts to allow Texas courts to exercise personal jurisdiction over the nonresident. Id. Although not determinative, foreseeability is an important consideration in deciding whether the nonresident "defendant purposefully has established minimum contacts with Texas. Id. The concept of foreseeability is implicit in the requirement that there be a substantial connection between the defendants and Texas arising from their conduct purposefully directed toward Texas. See Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex.1991). A defendant should not be subject to a Texas court’s jurisdiction based upon random, fortuitous, or attenuated contacts. BMC Software, 83 S.W.3d at 795.

Specific jurisdiction exists when the claims in question arise from or relate to the defendant’s purposeful contacts with Texas. Am. Type Culture Collection Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002). In conducting a specific-jurisdiction analysis, we focus on the relationship among the defendants, Texas, and the litigation. See Guardian Royal, 815 S.W.2d at 228. General jurisdiction, however, implicates a more demanding minimum-contacts analysis, requiring a showing that the defendants conducted substantial activities within the forum. CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996) (orig.proeeed-ing). General jurisdiction exists when a defendant has “continuous and systematic general business contacts” with Texas so that Texas courts may exercise personal jurisdiction over the defendant even if the plaintiffs claims did not arise from or relate to the defendant’s activities purposefully directed to Texas. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984); Am. Type Culture Collection, 83 S.W.3d at 809-10.

A. Did Valley and Unity waive their objections to jurisdiction?

As an initial matter, we must address the Patients’ and Blue Cross’s contentions that both Valley and Unity waived their special appearances. An objection to a Texas court’s exercise of personal jurisdiction over a nonresident is asserted by a special appearance under Rule 120a of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 120a. A special appearance must be made and determined on a sworn motion prior to any other plea, pleading, or motion that seeks affirmative relief. Tex.R. Crv. P. 120a(l)-(2); see Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex.1998). Any appearance before judgment that is not made in compliance with Rule 120a constitutes a general appearance. Tex.R. Civ. P. 120a(l). When a party enters a general appearance, the trial court can exercise personal jurisdiction over that party without violating the party’s due process rights. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex.1985).

1. Valley

The Patients and Blue Cross assert that Valley waived its special appearance by filing numerous pleadings with the trial court before filing its special appearance. See Tex.R. Crv. P. 120a(2). In response to the Patients’ first amended petition, Valley’s California counsel filed a pleading entitled, “Motion to Dismiss Plaintiffs’ First Amended Petition.” This was the first responsive pleading filed on behalf of Valley in this case. In this sworn motion, Valley requested dismissal on the grounds that the court lacked personal jurisdiction over it. To support this plea for dismissal, Valley asserted it had never conducted business in Texas and had never committed any torts against the Patients in Texas. Looking at the substance of the pleading, we conclude that it is a special appearance because it seeks dismissal based on lack of personal jurisdiction. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (stating that the substance of a pleading for relief should be considered to determine the nature of the pleading, rather than considering merely the title or form given to it); Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d 508, 514 (Tex.App.-Houston [14th Dist.] 1987, writ denied) (stating that the substance of a pleading is determined by the effect it will have on the proceeding if granted by the trial court). Because this was the first pleading Valley filed and it was, in substance, a special appearance, we conclude that Valley did not waive its special appearance in this manner.

The Patients and Blue Cross also allege that Valley made a general appearance by seeking affirmative relief from the trial court by a motion to quash Blue Cross’s notice of deposition and motion for protective order. Valley filed this motion before the trial court ruled on its special appearance. Specifically, the Patients and Blue Cross argue that Valley waived its special appearance by having a motion for protection heard before the trial court determined Valley’s special appearance. See Shapolsky v. Brewton, 56 S.W.3d 120, 139-40 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (holding that seeking affirmative relief from the trial court by requesting a temporary restraining order and sanctions partially unrelated to discovery constituted a waiver of a special appearance).

The use of discovery processes does not constitute a waiver of a special appearance. Tex.R. Civ. P. 120a(l). A nonresident defendant may file motions related to jurisdictional discovery and seek the trial court’s ruling on disputes that may affect the evidence presented at the special appearance hearing without waiving its special appearance. See Exito Elec. Co., Ltd. v. Trejo, 142 S.W.3d 302, 307 (Tex.2004). A trial court’s resolution of discovery matters related to the special appearance is not a general appearance by the party contesting personal jurisdiction. Id.

In this case, Valley’s motion to quash and motion for protective order was filed in response to Blue Cross’s notice of intention to take the deposition of one of Valley’s corporate representatives. By this motion, Valley sought to quash the deposition notice and sought a protective order against Blue Cross on the grounds that three of the Patients — Loan, Phuong, and Kim — each executed arbitration agreements with Valley. Valley argued that Blue Cross’s jurisdictional discovery requests from Valley were an attempt to circumvent the arbitration agreement. Valley also argued that Blue Cross was seeking substantive discovery under the guise of jurisdictional discovery. Valley’s motion to quash and motion for protective order were related to jurisdictional discovery and sought the trial court’s ruling on disputes that could have affected the evidence presented at the special appearance hearing. Therefore, we conclude that Valley did not waive its special appearance by filing such a motion. See id.

Accordingly, if the trial court found that Valley waived its special appearance by filing a pleading entitled “Motion to Dismiss Plaintiffs’ First Amended Petition” or by filing a motion to quash and motion for protective order, then the trial court erred.

2. Unity

Blue Cross asserts Unity waived its objection to the court’s exercise of personal jurisdiction by making a general appearance before filing its special appearance and by participating in Valley’s argument of its motion for protection and motion to quash before the trial court heard and determined Unity’s special appearance. Blue Cross argues that because Unity’s attorney sought affirmative relief on a discovery-related issue and participated in arguing the motion for protection and motion to quash before Unity filed its special appearance, it waived its special appearance.

In response to Blue Cross’s petition in intervention, which added Unity as a defendant, Unity filed its special appearance. One week before, Blue Cross deposed one of the Patients, Loan. Unity’s attorney was present at that deposition on behalf of Thu and Unity. While examining Loan during her deposition, Unity’s attorney became embroiled in a discovery dispute with the Patients’ lawyer and Blue Cross’s lawyer over a line of questioning. According to Blue Cross, Unity’s attorney insisted that the trial court resolve the dispute by telephone. Blue Cross argues that by seeking this relief from the trial court before filing its special appearance, Unity entered a general appearance and therefore waived its special appearance.

The plain language of Rule 120a(l) states that the taking of depositions and the use of discovery processes do not constitute a waiver of a special appearance. Tex.R. Crv. P. 120a(l). In addition, a nonresident defendant may seek the trial court’s ruling on disputes that may affect the evidence presented at the special appearance hearing without waiving its special appearance. Exito Elec., 142 S.W.3d at 307. Because Unity was seeking relief from the trial court on a discovery-related issue that could have affected the evidence presented at the special appearance hearing, we conclude that Unity did not waive its special appearance by seeking such relief from the trial court. See id.

Blue Cross also alleges that Unity’s attorney assisted in arguing Valley’s motion to quash and motion for protective order. Valley’s motions were filed in April 2004, and were argued before the trial court in May 2004. Unity filed its special appearance in June 2004. Blue Cross argues that by assisting in arguing these motions before filing its special appearance, Unity entered a general appearance and therefore waived its special appearance. Presuming without deciding that such assistance could waive a special appearance, the record does not show whether Unity’s attorney rendered any such assistance. The record shows that Valley and Thu — not Unity — filed the motion to quash and motion for protective order. Nothing in our record indicates that Unity’s attorney participated in arguing these motions before the trial court. Based on our review of the record, we conclude Unity did not waive its special appearance in the manner alleged.

Accordingly, the trial court erred to the extent it impliedly found that Unity waived its special appearance by seeking relief from the trial court on a discovery-related issue during Loan’s June 22, 2004 deposition. The trial court also erred to the extent it impliedly found that Unity waived its special appearance by arguing Valley’s motion to quash and motion for protective order because the record does not reflect that Unity’s attorney was present at or participated in the hearing.

B. Did the trial court properly conclude that it could exercise personal jurisdiction over Unity?

In two issues, Unity argues it is not subject to either specific or general jurisdiction. Specifically, Unity asserts that the trial court erred by denying its special appearance because (1) the Patients never filed a claim against Unity; (2) Unity lacks the requisite minimum contacts to establish specific or general jurisdiction; and (3) exercising jurisdiction over it would violate traditional notions of fair play and substantial justice. Conversely, Blue Cross alleges that Unity’s activities were purposefully directed at Texas, both as a corporate entity and through its alleged agents or employees, Johnny and Thu.

Unity argues the trial court improperly denied its special appearance because the Patients never sued Unity. As explained above, Blue Cross intervened as a party-plaintiff naming Unity as a defendant in its petition in intervention. Unity does not cite, and we have not found, any authority to support the notion that the failure of the plaintiffs to sue a party deprives a court of personal jurisdiction over claims by an intervenor. We reject this proposition.

Unity also asserts that plaintiffs must specifically plead in their petition the personal-jurisdiction grounds upon which they rely and that, because the Patients have filed no petition against Unity, this pleading requirement has not been satisfied. Unity relies on a case that indicates that plaintiffs must plead in their petitions the specific basis of personal jurisdiction upon which they rely. See Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673-74 (Tex.App.-Dallas 1993, no writ). To the extent this case holds that such a pleading requirement exists, we respectfully disagree.

There is no requirement that plaintiffs or other claimants plead in their petition the theories or bases of personal jurisdiction upon which they rely; rather, the only relevant pleading requirement flows from the need to plead allegations sufficient to bring nonresident defendants within the provisions of the long-arm statute. See Am. Type Culture Collection, 83 S.W.3d at 807 (stating plaintiffs bear the initial burden of pleading allegations sufficient to bring nonresident defendants within the provisions of the long-arm statute); Siskind v. Villa Found. For Educ., Inc., 642 S.W.2d 434, 437-38 (Tex.1982) (indicating that plaintiffs must allege an act by nonresident defendants in Texas in their petition to avoid a dismissal for lack of personal jurisdiction). This minimal pleading requirement is satisfied by an allegation that the nonresident defendants are doing business in Texas. See Perna v. Hogan, 162 S.W.3d 648, 652-53 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (indicating that pleading requirement can be satisfied by alleging that defendant is doing business in Texas or that defendant has committed any act in Texas); El Puerto De Liverpool, S.A. de C.V. v. Servi Mundo Llantero S.A. de C.V., 82 S.W.3d 622, 629 (Tex.App.-Corpus Christi 2002, pet. dism’d w.o.j) (indicating that pleading requirement can be satisfied by alleging that defendant is doing business in Texas). Because Blue Cross pleaded in its petition in intervention that Unity conducted business in Texas and committed torts in Texas, Blue Cross satisfied this pleading requirement.

Furthermore, Unity cites no case for its assertion that Blue Cross must rely upon the allegations of the Patients’ petition, in which no claims are asserted against Unity, to satisfy the pleading requirement as to Blue Cross’s claims against Unity in its petition in intervention. We disagree and base our ruling on the allegations of Blue Cross’s petition in intervention.

Although the trial court did not expressly find that either Thu or Johnny were Unity’s agents or employees, we presume the trial court impliedly found all facts necessary to support the judgment if supported by legally and factually sufficient evidence. See Am. Type Culture Collection, 83 S.W.3d at 806. Therefore, we construe Unity’s argument that it is not subject to specific jurisdiction in Texas as an attack on the legal and factual sufficiency of the evidence to support the trial court’s implied findings that Johnny and Thu were acting as agents or employees of Unity. See Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

The Texas contacts of agents or employees are attributable to their nonresident principals. See Alenia Spazio, S.p.A v. Reid, 130 S.W.3d 201, 214 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). On appeal, Unity asserts that Thu was never its agent or employee. At her deposition, Thu testified as follows:

• She worked for “Unity” and understood she was an employee of “Unity.”
• “Unity” paid her a salary to recruit patients from Houston, Texas.
• “Unity” reimbursed her for advertising costs related to these recruiting efforts.

At the end of her deposition, Thu testified that she had never heard of Unity Outpatient Surgery Center, L.L.C. and that Unity Outpatient Surgery Center, Inc. paid her. Despite this testimony, the trial court, as finder of fact, could have credited her former testimony and concluded that the “Unity” that Thu referred to was Unity Outpatient Surgery Center, L.L.C. On appeal, Unity does not address whether Johnny was acting as Unity’s agent or employee. After reviewing the evidence in the record under the applicable standards of review, we conclude that the evidence is legally and factually sufficient to support the trial court’s implied findings (1) that both Thu and Johnny were acting as Unity’s agents or employees when they solicited the Patients in Texas, and (2) that Blue Cross’s claims against Unity arise from or relate to Unity’s purposeful contacts with Texas. Accordingly, we overrule Unity’s first issue.

In addition to sufficient minimum contacts with Texas, federal due process requires that the exercise of personal jurisdiction comport with traditional notions of fair play and substantial justice. See Guardian Royal, 815 S.W.2d at 228. In deciding this issue, the court should consider the following factors:

• the burden of the defendant;
• the interests of the forum state in adjudicating the dispute;
• the plaintiffs’ interests in obtaining convenient and effective relief;
• the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and
• the shared interest of the several states in furthering fundamental substantive social policies.

Id.

Unity asserts several reasons that it claims a Texas court’s assertion of jurisdiction over it would offend traditional notions of fair play and substantial justice and would be inconsistent with due process requirements. First, it asserts that defending itself in Texas is unduly burdensome because Unity is a California corporation without any minimum contacts with Texas. Second, it claims Texas has little interest in adjudicating the dispute because the transaction at issue in this case is directed at California, not Texas. Unity concedes that Texas may have an interest in providing a forum for the Patients to obtain redress for the alleged wrongs by Unity, but it argues that this interest is considerably lessened in this case because Blue Cross is an Alabama corporation and cannot prove that Unity has done any harm to it in Texas. Unity argues that Blue Cross asserts claims due to alleged actions in California, not Texas. Under these circumstances, Unity contends, it would be unfair for a Texas court to exercise personal jurisdiction over it.

Only in rare cases will the exercise of personal jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state. Guardian Royal, 815 S.W.2d at 231. Unity must present a compelling case that the presence of some other considerations would render the exercise of personal jurisdiction unreasonable. See id. Despite this burden of negating all bases of personal jurisdiction, Unity did not propound any evidence regarding the factors we consider in determining whether the exercise of personal jurisdiction comports with fair play and substantial justice, including the burden on Unity of litigating in Texas. Unity has not made a compelling case that it would be unreasonable for the court to exercise personal jurisdiction in this case. Distance alone is usually insufficient to defeat personal jurisdiction because modern transportation and communication have made it less burdensome to defend lawsuits in a state in which the defendant engages in economic activity. See id. After carefully considering all of the relevant factors, we hold the exercise of personal jurisdiction over Unity in this case comports with traditional notions of fair play and substantial justice. See Intercarga, S.A. v. Fritz Companies, Inc., No. 14-02-00297-CV, 2003 WL 21402583, at *9 (Tex.App.-Houston [14th Dist.] June 19, 2003, no pet.) (holding that the exercise of personal jurisdiction would comport with fair play and substantial justice). Accordingly, we overrule Unity’s second issue.

C. Did the trial court properly conclude that it could exercise personal jurisdiction over Valley?

In its sole issue on appeal, Valley asserts that a Texas court cannot assert personal jurisdiction over it consistent with constitutional due process because (1) Valley does not have sufficient minimum contacts with Texas and (2) a substantial connection does not exist between Valley and Texas that came about from actions purposefully directed towards Texas. The Patients and Blue Cross assert that Valley’s activities, both as a corporate entity and through its alleged agents or employees, Johnny and Thu, were purposefully directed at Texas and are adequate to support implied findings of both specific and general jurisdiction.

1. Thu and Johnny as Valley’s Alleyed Ayents or Employees

The Texas contacts of agents or employees are attributable to their nonresident principals. See Alenia Spazio, S.p.A., 130 S.W.3d at 214. Although the trial court did not expressly find that either Thu or Johnny were Valley’s agents or employees, we presume the trial court impliedly found all facts necessary to support the judgment if supported by legally and factually sufficient evidence. Am. Type Culture Collection, 83 S.W.3d at 806. Valley asserts that there is no evidence to support the trial court’s implied findings that Johnny and Thu were acting as agents or employees of Valley. The affidavit of Wendy Schneider proved that Thu and Johnny were not employees or agents of Valley. Furthermore, at her deposition, Thu testified that she never worked for Valley, that she never received any money from Valley, that she did not have any direct contact with anyone at Valley, and that the only contact she had regarding her marketing business in California was with someone from Unity.

On appeal, the Patients and Blue Cross point to the following deposition testimony:

• Kim testified that she understood that Thu was working for Valley, based on Kim’s observation of Thu talking to staff at the Valley center.
• Kim testified that Thu told her she worked for Valley.
• Loan testified that Thu told her that she was working for Valley and being paid by Valley.
• Loan testified that, at the Valley center, Thu knocked on the door, and someone opened the door for Thu to go “in the back.”
• Loan testified that she thought that Thu acted like she worked at the Valley center because Thu walked back and forth comfortably and freely.
• Loan testified that Thu did not fill out Loan’s paperwork but guided Loan in filling out her paperwork.
• Phuong testified that Thu told Phuong that Thu was working for Valley but that Thu did not tell Phuong that she was being paid by Valley.
• Phuong testified that Thu went into the back part of the Valley center where other “Valley people” were working and that Phuong saw Thu preparing paperwork with someone else from the clinic.
• Phuong testified that Thu filled out Phuong’s paperwork for her.
• Phuong believed that Thu was working for Valley because Thu acted so naturally and at ease and because she prepared paperwork.
• Phuong testified that no one other than Thu told her that Thu worked for Valley.

The law does not presume agency. Suarez v. Jordan, 35 S.W.3d 268, 272-73 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Absent actual or apparent authority, an agent cannot bind a principal. Id. Both actual and apparent authority are created through conduct of the principal communicated either to the agent (actual authority) or to a third party (apparent authority). Id. Actual authority denotes authority that the principal intentionally confers upon the agent, or intentionally allows the agent to believe he has, or by want of ordinary care allows the agent to believe himself to possess. Id. In determining whether apparent authority exists, we look to the acts of the principal and ascertain whether those acts would lead a reasonably prudent person using diligence and discretion to suppose the agent had the authority to act on behalf of the principal. Id. Only the conduct of the principal may be considered; representations made by the agent of his authority have no effect. Id. Furthermore, the principal either must have affirmatively held the agent out as possessing the authority or the principal must have knowingly and voluntarily permitted the agent to act in an unauthorized manner. Id.

After reviewing the evidence properly before the trial court under the applicable legal standard, we conclude that Valley conclusively proved, as a matter of law, that Thu and Johnny were not agents or employees of Valley. See id. Most of the evidence upon which the Patients and Blue Cross rely to show agency relates to alleged statements by Thu, which are insufficient as a matter of law. Id. There is no evidence of acts by Valley that would lead a reasonably prudent person using diligence and discretion to suppose Thu had the authority to act on behalf of Valley. There is no evidence that Valley affirmatively held Thu out as possessing this authority or that Valley knowingly and voluntarily permitted Thu to act in an unauthorized manner. Therefore, we cannot count the contacts of Thu and Johnny with Texas as being contacts of Valley for jurisdictional purposes.

2. General Jurisdiction

The Patients and Blue Cross assert that the trial court may exercise personal jurisdiction over Valley under a general jurisdiction analysis based on the following contacts: (1) the contacts of Valley’s alleged agent or employee Thu with Texas, (2) Valley’s advertising in Texas, (3) the attendance of Valley employees at meetings in Dallas three years ago, (4) possible trips by Valley’s financial director (Wendy Schneider) to Texas with Valley’s founder and principal, Dr. Gene Zdenek more than five times, (5) Valley’s treatment of more than thirty-five Texas residents at Valley’s facility in the past five years, and (6) Valley’s sending of eighteen claims to insurance carriers in Texas over the past five years.

As stated above, we cannot count the contacts of Thu with Texas as being contacts of Valley. As to advertising, the evidence conclusively proves as a matter of law that Valley did not conduct any advertising in Texas. Schneider testified that the possible five trips to Texas with Dr. Zdenek were on behalf of the Zdenek Eye Institute, not Valley. Reviewing the record evidence under the applicable standard of review, we conclude that the evidence conclusively proves as a matter of law that the nature and quality of Valley’s contacts with this state do not rise to the level of continuous and systematic general business contacts with Texas. See Helicopte- ros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984); Alenia Spazio, S.p.A., 130 S.W.3d at 216-20. Therefore, the trial court erred to the extent it impliedly determined it could exercise personal jurisdiction over Valley based on general jurisdiction.

3. Specifíc Jurisdiction

In support of its special appearance, Valley filed the affidavit of Wendy Schneider, Valley’s financial director, copies of services agreements between Valley and various surgical entities, and an excerpt from Thu’s oral deposition. In her affidavit, Schneider testifies as follows:

• Dr. Zdenek, a California ophthalmologist, is the founder and sole owner of Valley, a corporation formed and incorporated under California law.
• Since 1991, Valley has been the owner of a surgery center located in Reseda, California.
• Although Dr. Zdenek has performed many surgeries at the surgery center, Valley has rented the center out for use by other doctors.
• Valley is not incorporated in Texas and has no subsidiaries incorporated in Texas.
• Valley maintains no office or any other type of facilities in Texas and has no officers, directors, or employees who live in Texas.
• No Valley employees have ever traveled to Texas in their capacities as Valley employees.
• At no time has Valley contracted with any persons residing or operating in Texas to act on its behalf with respect to marketing to or service of any of Valley’s patients.
• Valley does not have a telephone listing in Texas.
• Valley does not have any bank accounts in Texas.
• Valley owns no real or personal property in Texas, and Valley has never sold, purchased, or leased property in Texas.
• Valley has never advertised in Texas, nor has it directed any advertising activities to any Texas residents.
• Valley has never made any purchases in Texas, applied for a loan in Texas, attended any trade shows or conventions in Texas, or had any business meeting in Texas.
• Valley has never sued or been sued in Texas (except for this suit).
• Limited contact information about Valley is maintained on a passive website dedicated to the Zdenek Eye Institute.
• Valley served as a landlord to A-MED, Inc., St. John Medical Group, and Antioch Management, Inc. (hereinafter the “Companies”) and leased its facilities to these entities under the • terms of the services agreements attached to Schneider’s affidavit.
• Upon information and belief, the Companies are all related to Unity.
• Valley did not initiate the contact with the Companies; rather, the Companies initially contacted Valley.
• Valley had no involvement in the process by which the Companies’ patients initially sought medical treatment for their physical ailments.
• Valley had no involvement in the diagnosis of the Companies’ patients.
• Valley had no involvement in any solicitation of the Companies’ patients.
• Valley had no involvement in the arrangements by which the Companies’ patients were brought to Valley for medical treatment.
• Valley had no involvement in any of the Companies’ patients’ decisions to have medical procedures performed.
• Valley had no involvement in the selection of doctors who initially treated or diagnosed the Companies’ patients.
• Valley had no involvement in the selection of the doctors who performed the surgeries or other medical procedures on behalf of the Companies’ patients.
• Valley had no involvement in the determination of the medical necessity of the medical procedures that were performed on the Companies’ patients.
• Doctors arranged and paid by the Companies, not Valley, performed all of the medical procedures and surgeries.
• Valley’s personnel had no involvement in any attempt to collect the bills generated by the Companies.
• Valley never employed Johnny and never stated or represented to any person or organization that Johnny was an employee or agent of Valley.
• Valley never employed Thu and never stated or represented to any person or organization that Thu was an employee or agent of Valley.
• Valley never employed the Companies and never stated or represented to any person or organization that the Companies were agents of Valley.
• Valley did not employ an employee who can speak Vietnamese at any time from the year 2002 to today.

Valley also introduced into evidence various services agreements between Valley and each of the Companies. Valley’s agreement with A-MED, Inc. states in part:

After each procedure is completed, A-MED shall deliver to [Valley] appropriate documentation (including notice of assignments for medical service providers, identification numbers, and a copy of any applicable lien) and a statement and/or invoice, as needed, to submit billing documents to the responsible payor, which will then be transmitted to the appropriate payor under [Valley’s] name and appropriate identification number. ... [Valley] agrees to pay A-MED within ten business days of [Valley’s] receipt of funds from the payor, 98% of such gross receipts received, the remaining 2% of gross receipts to be retained by [Valley], in addition to any other sums due and payable to [Valley], pursuant to the terms of this Agreement.

Valley’s services agreements with St. John Medical Group, and Antioch Management, Inc. contain substantially similar language, except that Valley’s portion of the gross receipts is ten percent rather than two percent.

Valley also introduced a declaration stating that Thuy and Ha did not have their medical procedures performed at Valley’s surgical center. Medical records supporting this testimony indicate that Thuy and Ha had their medical procedures performed at a Unity surgical center in Buena Park, California, rather than at Valley’s surgical center in Reseda, California. In their deposition testimony, Thuy and Ha confirm that their procedures were performed at a Unity outpatient center, as opposed to Valley’s surgical center.

The evidence conclusively proves as a matter of law that procedures performed on Thuy and Ha did not occur in Valley’s surgical facility. After reviewing the evidence in the record under the applicable standard of review, we conclude that the evidence conclusively proves as a matter of law that the claims of Thuy and Ha against Valley do not arise from or relate to the Valley’s purposeful contacts with Texas. See Alenia Spazio, S.p.A., 130 S.W.3d at 210-16.

As to the claims of Loan, Phuong, and Kim, and the claims of Blue Cross that are based on treatment of its insureds Loan and Kim, the analysis is different. The evidence shows that Loan, Phuong, and Kim received the medical treatments in question at Valley’s surgical facility. Much of Schneider’s affidavit in support of Valley’s special appearance is based on Valley’s services agreements with the Companies, and many of Schneider’s, jurisdictional denials are stated in terms of the Companies and the Companies’ patients. There is no evidence in our record, however, that Loan, Phuong or Kim received their medical treatment as patients of any of the Companies. There is no evidence in the record that any of the Companies recruited Loan, Phuong, or Kim to have their medical procedures performed at Valley’s surgical center or that Thu or Johnny were acting on behalf of any of the Companies when they allegedly recruited Loan, Phuong, and Kim. The terms of the services agreements between Valley and the respective Companies require the Companies to give Valley documentation that would show all of the patients treated at Valley’s facility under these services agreements. Nonetheless, neither Schneider nor any witness on behalf of Valley has testified that any of the Patients were treated under one or more of these agreements. There is no evidence in the record that the terms of the services agreements between Valley and the Companies apply to Loan, Phuong, or Kim.

Furthermore, in their petition, Loan, Phuong, and Kim allege that their insurance companies mistakenly sent them payments for diagnostic tests that Valley allegedly fraudulently billed to their insurers. Loan, Phuong, and Kim allege that their insurers mistakenly sent them payments for these allegedly fraudulent diagnostic tests. In her deposition, Loan testified that her insurance company sent her a check for “too much money” that she suspected was related to insurance fraud. After she received this check, Loan testified she received approximately ten phone calls from people who identified themselves as representatives of Valley, demanding payment. Likewise, Phuong testified at her deposition that she received letters and phone calls from Valley seeking payment for her procedures. Schneider asserts in her affidavit that Valley’s personnel had no involvement in any attempt to collect the bills generated by the Companies; however, as mentioned above, there is no evidence that the bills relating to Loan, Phuong, or Kim were generated by the Companies. Valley did not provide the trial court with evidence as to its relationship to the persons and entities involved in the medical treatment in question of Loan, Phuong, and Kim at Valley’s surgical center or as to Valley’s role, if any, in seeking to collect funds in Texas that Loan, Phuong, Kim, and Blue Cross allege were the result of insurance fraud by Valley and others.

After reviewing the evidence in the record under the applicable standard of review, we conclude that the trial court did not err in impliedly finding Valley failed to meet its burden of proving that the claims of Loan, Phuong, Kim, and Blue Cross against Valley do not arise from or relate to Valley’s purposeful contacts with Texas. See BMC Software, 83 S.W.3d at 793 (stating that party asserting special appearance has burden of negating all bases of jurisdiction); Alenia Spazio, S.p.A., 130 S.W.3d at 210-16.

Accordingly, we sustain Valley’s sole issue on appeal to the extent that Valley asserts the trial court erred in denying its special appearance as to the claims asserted by Thuy and Ha; otherwise, we overrule Valley’s issue. We reverse the trial court’s order to the extent it denied Valley’s special appearance as to all the claims asserted by Thuy and Ha against Valley, and we remand to the trial court with instructions to dismiss these claims for lack of personal jurisdiction. Otherwise, we affirm the trial court’s order.

V. Conclusion

Neither Valley nor Unity waived its special appearance. The evidence before the trial court is legally and factually sufficient to support the trial court’s implied findings regarding the assertion of personal jurisdiction over Unity. Therefore, the trial court did not err in denying Unity’s special appearance. Accordingly, we overrule Unity’s two issues on appeal and affirm the trial court’s order denying Unity’s special appearance. We reverse the trial court’s order to the extent it denied Valley’s special appearance as to the claims asserted by Thuy and Ha against Valley, and we remand to the trial court with instructions to dismiss these claims for lack of personal jurisdiction. We affirm the remainder of the trial court’s order.

      . Though served with process in this case, Johnny, who is allegedly Thu's younger brother, has never appeared in this case.

      . Even though she filed a notice of appeal, Thu has not filed an appellate brief and therefore is not challenging the trial court’s denial of her special appearance.

      . The Texas Supreme Court recently disapproved of the Shapolsky case on other grounds. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 789 n. 63 (Tex.2005).

      . At least one court of appeals has gone so far as to hold that the plaintiffs’ failure to allege in the petition that the defendants are doing business in Texas or committed an act in Texas still does not entitle a nonresident to dismissal for lack of personal jurisdiction if the plaintiffs make such an allegation in their response in opposition to the special appearance. See Perna v. Taylor, 146 S.W.3d 791, 796-97 (Tex.App.-Beaumont 2004, no pet.); but see Perna, 162 S.W.3d 648, 652-53.

      . Having concluded that the trial court did not err in denying Unity's special appearance because Unity is subject to specific jurisdiction in Texas, we need not address Unity’s contention that it is not subject to general jurisdiction.

      . In their petition, the Patients allege that Valley is doing business in Texas, thus satisfying the pleading requirement regarding nonresident defendants. See, e.g., El Puerto de Liverpool, S.A. de C.V., 82 S.W.3d at 629. Valley had the burden to negate all bases of personal jurisdiction. See BMC Software, 83 S.W.3d at 793.

      . There is evidence in the record that Unity and Thu advertised in various Vietnamese publications in the Houston area, but these are not contacts of Valley.

      . Valley asserts on appeal that this court should use the “out-of-state” doctor personal-jurisdiction analysis that this court used in Brocail v. Anderson, 132 S.W.3d 552, 559-64 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). We decline to do so because we conclude that this analysis is limited to certain personal-jurisdiction issues regarding medical-malpractice claims against out-of-state doctors. The claims at issue in the present case are not medical-malpractice claims.

      . We note that Valley does not argue on appeal that the trial court’s exercise of personal jurisdiction over it would offend traditional notions of fair play and substantial justice, so we need not address this issue.


source: Caselaw Access Project

author:
JOHN S. ANDERSON, Justice.
      FROST, J.,

license: Public Domain

text:
    Dennis H. TAYLOR and Shepherd, Smith & Bebel, P.C., Appellants, v. Valerie WILSON, Appellee.
    No. 14-04-00701-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 6, 2005.
    Rehearing Overruled Nov. 3, 2005.

      Samuel Benton Edwards, William Smythe Shepherd, Houston, for appellants.
    Wayne H. Paris, Houston, for appellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   MAJORITY OPINION

JOHN S. ANDERSON, Justice.

This is an interlocutory appeal from the denial of a motion to compel arbitration. Appellants, attorney Dennis Taylor and the law firm of Shepherd, Smith, & Bebel, P.C., seek relief from the trial court’s denial of their motion to compel arbitration of Valerie Wilson’s claim for legal malpractice. Appellants’ brief asserts two issues: (1) whether a suit for legal malpractice is a claim for “personal injury” under Texas Civil Practice and Remedies Code section 171.002(a)(3); and (2) if so, whether the claim must be compelled to arbitration if it is intertwined with a breach of contract claim. We reverse the trial court’s order denying the motion to compel arbitration and remand this cause for further proceedings.

I. Background

In 2002, Valerie Wilson retained appellants as legal counsel to represent her on a claim against an investment firm and its broker. Appellants, on Wilson’s behalf, filed a claim in arbitration seeking economic damages arising from breach of contract, deceptive trade practices, breach of securities statutes, misrepresentation, and breach of fiduciary duty. Wilson and appellants entered into a Power of Attorney and Contingent Fee Contract (the “agreement”) that contains an agreement to arbitrate disputes. After the arbitration claim was filed, the brokerage firm ceased doing business and claimed financial deficits. As a result, appellants entered into settlement discussions with the brokerage firm and ultimately settled Wilson’s claim for $40,000. Wilson contends appellants entered into the binding settlement agreement without her authority and in violation of the agreement.

In 2004, Wilson filed suit against appellants alleging legal malpractice, breach of fiduciary duty, and breach of contract, and seeking fee forfeiture. Appellants moved to compel arbitration pursuant to the agreement, and the trial court denied the motion. Appellants now appeal.

II. Discussion

A party seeking to compel arbitration must establish the existence of a valid, enforceable arbitration agreement and show the claims asserted fall within the scope of that agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). The trial court’s determination of the arbitration agreement’s validity is a legal question subject to de novo review. Id.

It is undisputed that the parties in this matter entered into an agreement to arbitrate their disputes. On appeal, appellants argue the trial court erred by not compelling Wilson to arbitrate her dispute according to the terms of the agreement.

A. “Personal Injury”

The trial court denied appellants’ motion to compel arbitration because it determined Wilson’s legal malpractice action was a claim for “personal injury” pursuant to section 171.002(a)(3) of the Texas Arbitration Act. Tex. Civ. PRAC. & Rem.Code Ann. § 171.002(a)(3) (Vernon 2005). The Texas Arbitration Act does not apply to a claim for personal injury unless each party to a claim, on the advice of counsel, agrees to arbitrate in writing, and the agreement is signed by each party and each party’s attorney. Id. § 171.002(a)(3), (c)(l-2) (emphasis added). It is undisputed that the parties did not comply with section 171.002(c)(l-2); therefore, the trial court held the agreement to arbitrate was unenforceable. On appeal, appellants contend the trial court erred because a suit for legal malpractice is not a claim for “personal injury” under the Texas Arbitration Act.

B. Miller v. Brewer, In re Hartigan, and In re Godt

The issue of whether a suit for legal malpractice is a claim for “personal injury” under the Texas Arbitration Act is an issue of first impression in this court. Other appellate courts that have addressed the issue are split. Compare Miller v. Brewer, 118 S.W.3d 896, 899 (Tex.App.Amarillo 2003, no pet.) (holding a legal malpractice suit stemming from employment discrimination is not a claim for personal injury), and In re Hartigan, 107 S.W.3d 684, 690-91 (Tex.App.-San Antonio 2003, pet. denied) (holding a legal malpractice claim is not a claim for personal injury), with In re Godt, 28 S.W.3d 732, 738-39 (Tex.App.-Corpus Christi 2000, no pet.) (holding a legal malpractice claim is a personal injury action for all purposes).

The Corpus Christi Court of Appeals was the first to address this issue, and, relying on three cases, it held a legal malpractice suit is a claim for “personal injury” under the Texas Arbitration Act. In re Godt, 28 S.W.3d at 738-39. The Godt court relied upon Willis v. Maverick, which held a cause of action for legal malpractice is in the nature of a tort and is governed by a two-year statute of limitations. 760 S.W.2d 642, 644 (Tex.1988). The other two cases relied upon by the Godt court cite Willis as authority for the proposition that a legal malpractice action is a claim for “personal injury.” See Sample v. Freeman, 873 S.W.2d 470, 476-77 (Tex.App.-Beaumont 1994, writ denied) (holding an award for pre-judgment interest in a legal malpractice case is appropriate because a legal malpractice action is a personal injury claim); Estate of Degley v. Vega, 797 S.W.2d 299, 302-03 (Tex.App.-Corpus Christi 1990, no writ) (classifying a legal malpractice claim as a claim for personal injury for statute of limitations purposes). However, in Willis, the Texas Supreme Court held a legal malpractice claim is in the nature of a tort for purposes of determining the statute of limitations, but it did not hold that legal malpractice is a personal injury action. Willis, 760 S.W.2d at 644. Thus, Willis stands for the proposition that legal malpractice is a tort, but not for the conclusion that a claim of legal malpractice is a claim for personal injury.

Moreover, the plaintiffs original injury in Godt was based on personal injuries suffered from medical malpractice. Godt, 28 S.W.3d at 734. In reaching its conclusion, the Godt court “apparently relied upon the fact that ‘the nature of Godt’s complained-of injury in her malpractice claim is an action for personal injury, rather than an action for economic or contractual losses.’ ” Miller, 118 S.W.3d at 898 (quoting Godt, 28 S.W.3d at 739). Here, unlike Godt, Wilson’s underlying claim was for economic losses rather than for personal injury. We reject the Godt analysis and reach the same conclusion as that of our other sister courts holding a legal malpractice claim is not a claim for personal injury. See Miller, 118 S.W.3d at 897-99; In re Hartigan, 107 S.W.3d at 689-91. Our conclusion is buttressed by the legislative history of the personal injury exception to the application of the Texas Arbitration Act.

C. Legislative History of the Personal Injury Provision in the Texas Arbitration Act

The legislative history regarding the personal injury exception to the Texas Arbitration Act reveals the legislature intended to restrict the scope of the personal injury exception to physical personal injury. A summary of the legislative history of the personal injury provision in the Texas Arbitration Act is as follows:

In 1978, the House Judiciary Committee met between legislative sessions to investigate how arbitration could be better used to relieve an increasingly overburdened court system. The committee issued four recommendations designed to increase use of arbitration, then attempted to implement those recommendations via House Bill 15 (“H.B. 15”) in the 66th Legislative Regular Session. The limitation on arbitration for personal injury claims first appeared as an amendment to H.B. 15.
In the second meeting of the House Judiciary Committee on H.B. 15, an amendment was offered to exclude personal injury actions from the [Texas Arbitration Act]. The bill was subsequently referred to a special subcommittee which modified the amendment by allowing arbitration of personal injury actions under the statute so long as the parties to a written agreement could prove they were advised on the implications of arbitration by counsel. The amendment was only concerned with physical personal injuries, as it also sought to exclude claims for workers’ compensation. The essence of the language in the amendment was agreed to by the Senate, and subsequently adopted into the final version of the bill. The personal injury clause remained substantially unchanged when the 74th Legislature redesignated the [Texas Arbitration Act] from the Civil Statutes to Chapter 171 of the Civil Practice & Remedies Code. The reorganization of the Civil Practice and Remedies Code under the 75th Legislature, which divided the old section 171.001 into two sections, placed the personal injury clause in the new section 171.002 and added the requirement that a personal injury arbitration agreement must be signed by the parties themselves, as well as their attorneys.

Robert J. Kraemer, Attorney-Client Conundrum: The Use of Arbitration Agreements for Legal Malpractice in Texas, 33 St. Mary’s L.J. 909, 932-34 (2002) (emphasis added) (footnotes omitted). The legislature clearly did not intend to include a claim for legal malpractice within the personal injury exception.

III. Conclusion

We find no room for doubt in the legislature’s intent to restrict the meaning of the personal injury exception of the Texas Arbitration Act to physical personal injury. Inasmuch as Wilson has not suffered a physical injury, her malpractice claim is not excluded from arbitration. Thus, the trial court erred as a matter of law by finding Wilson’s legal malpractice claim was a claim for personal injury. Because we resolve the first issue in appellants’ favor, we do not address their second issue. Accordingly, we reverse the trial court’s order denying appellants’ motion to compel arbitration and remand this cause with instructions to the trial court to enter an order compelling arbitration between appellee, Valerie Wilson, and the appellants, Dennis Taylor and the law firm of Shepherd, Smith & Bebel, P.C., and staying all other proceedings in this matter pending the outcome of the arbitration.

J. FROST concurring.

FROST, J.,

concurring.

The court correctly concludes that the legal malpractice claim does not fall within the statutory exemption for personal injury claims under the Texas Arbitration Act. However, the majority’s analysis, which ostensibly relies in part on legislative history, misses the mark. The legislative history for the Texas Arbitration Act is silent with respect to whether “personal injury” includes legal malpractice, but even if it were not, there is no reason to look to legislative history because, under the unambiguous meaning of the statute, a legal malpractice claim is not a claim for personal injury.

The Texas Arbitration Act is contained in Chapter 171 of the Texas Civil Practice and Remedies Code. See Tex. Crv. PRAC. & Rem. Code Attn. § 171.001, et seq. Section 171.002, entitled “Scope of Chapter” states:

(a) This chapter does not apply to:
(3) a claim for personal injury, except as provided by Subsection (c);
(c) A claim described by Subsection (a)(3) is subject to this chapter if:
(1) each party to the claim, on the advice of counsel, agrees in writing to arbitrate; and
(2) the agreement is signed by each party and each party’s attorney.

Tex. Civ. PRAC. & Rem. Code Ann. § 171.002 (Vernon 2005). The parties did not comply with 171.002(c); therefore, if the legal malpractice claim is a claim for personal injury, it is subject to the Texas Arbitration Act. Thus, the outcome of this case turns on the meaning of “personal injury” as used in section 171.002(a)(3) and whether a legal malpractice claim falls within its scope.

As noted in the majority opinion, Texas courts are divided on this issue. Compare Miller v. Brewer, 118 S.W.3d 896, 899 (Tex.App.-Amarillo 2003, no pet.) (holding a legal malpractice suit stemming from employment discrimination is not a claim for personal injury), and In re Hartigan, 107 S.W.3d 684, 690-91 (Tex.App.-San Antonio 2003, pet. denied) (holding a legal malpractice claim is not a claim for personal injury), with In re Godt, 28 S.W.3d 732, 738-39 (Tex.App.-Corpus Christi 2000, no pet.) (holding a legal malpractice claim is a personal injury action for all purposes).

The term “personal injury” has been used in both a narrow sense of “bodily injury” and a broader sense, meaning a personal wrong, including libel, slander, malicious prosecution, assault, and false imprisonment, as well as bodily injury. See Gray v. Wallace, 319 S.W.2d 582, 583-84 (Mo.1958); Soukop v. Employers’ Liability Assur. Corp., 341 Mo. 614, 108 S.W.2d 86, 90 (1937). (“The words ‘personal injuries’ as defined by lexicographers, jurists, and text-writers and by common acceptance, denote an injury either to the physical body of a person or to the reputation of a person, or to both.”); Black’s Law DictionaRY 707 (5th ed.1979) (defining “personal injury” as follows: “In a narrow sense, a hurt or damage done to a man’s person, such as a cut or a bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation ... the term is also used (chiefly in statutes) in a much wider sense, and as including any injury which is an invasion of personal rights, and in this signification it may include such injuries to the person as libel or slander, criminal conversation, malicious prosecution, false imprisonment, and mental suffering.”). Regardless of whether torts that do not cause bodily injury, such as libel, slander, and malicious prosecution, constitute “a claim for personal injury” under section 171.002(a)(3), under either the narrow or broad definition of “personal injury,” a legal malpractice claim is not a personal-injury claim. Legal malpractice does not involve bodily injury, and it does not involve injuries to rights regarding the person.

Other states considering the issue in the context of which statute of limitations to apply to legal malpractice claims, have found legal malpractice is not a personal injury claim. For example, the New Jersey Supreme Court reasoned that “the gravamen of legal-malpractice actions is injury to the rights of another, not personal injury.” McGrogan v. Till, 167 N.J. 414, 771 A.2d 1187, 1192 (2001); see also Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 840, 491 P.2d 421(1971) (noting that legal malpractice causes damage to “intangible property interests”); Higa v. Mirikitani, 55 Haw. 167, 517 P.2d 1, 4 (1973) (commenting that “virtually all claims for legal malpractice [concern] a non-physical injury to an intangible interest of the plaintiff’); Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275, 279 (Ct.App.1989) (“ “With few exceptions, ... the courts have concluded that legal malpractice does not cause personal injuries and, therefore, is not governed by a personal injury tort statute of limitations.’ ”) (quoting 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 18.6 at 75-76 (3d ed.1989)). The McGro-gan court relied on the analysis from an earlier case in which the court reasoned that “a legal-malpractice action was not ‘a personal injury claim but rather an assertion that an attorney engaged for a particular purpose was negligent in the handling of it, resulting in pecuniary loss to appellant.’ ” McGrogan, 771 A.2d at 1193. Likewise, a Tennessee court found that legal malpractice is a claim in which “the injury is not to the person but the negligent failure of the attorney to perform” his or her professional obligation. Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162, 166 (1966).

The Supreme Court of Illinois reasoned that the “basis of the legal malpractice claim is that the plaintiff would have been compensated for an injury caused by a third party, absent negligence on the part of the plaintiffs attorney.” Eastman v. Messner, 188 Ill.2d 404, 242 Ill.Dec. 623, 721 N.E.2d 1154, 1158 (1999). Thus, the court came to the conclusion that the “injuries resulting from legal malpractice are not personal injuries but, instead, are pecuniary injuries to intangible property interests.” Id. Likewise, the Supreme Court of Pennsylvania, in determining whether a legal malpractice claim was for damages for personal injury, concluded that “a claim for damages based upon legal malpractice does not involve personal injury in that it arises out of negligence and breach of contract, and the injury alleged concerns purely pecuniary interests.” Hedlund Mfg. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357, 359 (1988). Pennsylvania’s high court reasoned that the rights involved are more akin to property rights. See id.

In sum, though the nature of a legal-malpractice claim may vary, it is fundamentally a claim for damage to the claimant’s intangible interest, not to a personal right seeking redress for injury to one’s body, mind, or emotions. Applying a plain-meaning analysis, a legal malpractice claim is not a claim for personal injury.

The majority emphasizes the legislative history of the statute, which the majority claims evinces a legislative intent to restrict the scope of “personal injury” to “physical injury.” This is not an accurate characterization of the legislative history. As stated in the law review comment on which the majority relies, an amendment was added to the 1979 legislation in question, creating the exceptions that are now codified at section 171.002(a)(3),(4) of the Texas Civil Practice and Remedies Code. See Robert J. Kraemer, Attorney-Client Conundrum: The Use of Arbitration Agreements for Legal Malpractice in Texas, 33 St. MARY’S L.J. 909, 932-34 (2002). As noted by the author of the comment, “[tjhroughout this evolution in the statute, no discussion or consideration is on record that the original legislative intent for the personal injury provision under Section 171.002 included or excluded legal malpractice.” Kraemer, 33 St. MaRy’s L.J. at 934. Furthermore, the legislative history is silent as to whether the Texas Legislature intended to use “personal injury” in the narrower sense of bodily injury. The only support in the one authority (the law review comment) the majority cites is the author’s statement that “[t]he amendment was only concerned with physical personal injuries, as it also sought to exclude claims for workers’ compensation.” Kraemer, 33 St. MARY’S L.J. at 933. However, the only authority cited for this proposition is the text of the statute itself. See Kraemer, 33 St. Mary’s L.J. at 933, n.139. This is not part of the legislative history at all — it is the opinion of the author of a comment in 2002 as to the unstated intent of legislators in enacting a statute in 1979. See In re Sullivan, 157 S.W.3d 911, 918-19 (Tex.App.-Houston [14th Dist.] 2005, mand. denied) (stating that statements of nonlegis-lators made after the enactment of the legislation at issue are not legislative history and are not relevant to the construction of the statute). Furthermore, the comment author bases his opinion on the statute’s exclusion of all workers’ compensation claims, regardless of whether the agreement to arbitrate is in writing and signed by each party’s attorney. It is not reasonable to conclude that the legislature intended to limit “personal injury claims” to physical personal injury simply because the legislature was simultaneously considering an exemption for workers’ compensation claims.

Since at least the early part of the last century, Texas courts have recognized claims such as libel, slander, and false imprisonment — none of which involve physical injury — as personal injury claims. Over a century ago, in Houston Printing Co. v. Dement, the court, holding that libel and slander are included in the term “personal injuries,” explained:

That injuries to the physical man are generally meant by the expression “personal injuries” may be conceded, but it is nevertheless true that injuries to the reputation and to the health have ever been classed and treated by law writers as personal injuries. The absolute rights of each individual are the rights of personal security and injuries against the life, the limb, the body, the health, or the reputation of the individual.

44 S.W. 558, 560 (Tex.Civ.App. 1898, writ denied); accord Brewster v. Baker, 139 S.W.2d 643, 645 (Tex.Civ.App.-Beaumont 1940, no writ) (stating that “[djamage to character as the result of slander or libel is a personal injury”). Thus, the majority’s analysis seems to overlook how Texas courts have interpreted the term “personal injury claim.”

Appellants assert — and the majority seems to agree — that because various Texas statutes define “personal injury” in a way that suggests the term is limited to physical injuries, we should apply that same meaning in determining if legal malpractice claims fall within the scope of section 171.002(a)(3) of the Texas Arbitration Act. If anything, the fact that the legislature chose to define the term “personal injury” in other statutes in a way that differs from both case law and ordinary usage, but did not do so in the Texas Arbitration Act tends to suggest that the legislature did not intend the term to be used in the more restrictive sense (that is, to limit it to physical injuries) in the Texas Arbitration Act. But the question of whether “personal injury” in the Texas Arbitration Act is restricted to “physical injury” is a question this court need not and should not answer today. Based on a plain-meaning analysis of the statute, the court should simply hold that a legal malpractice claim is not a claim for “personal injury” under the Texas Arbitration Act.

In sum, the court is correct to the extent it concludes that legal malpractice is not included in “personal injury” as that term is used in section 171.002(a)(3) of the Texas Civil Practice and Remedies Code. However, the court errs in relying on an after-the-fact opinion as to legislative intent as if it were part of the legislative history. Furthermore, the court need not and should not decide today the issue of whether a “claim for personal injury” as used in this statute is limited to physical injury.

      . In the last paragraph of the agreement, the last sentence provides in bold, ”[a]ny dispute arising under or relating to this agreement shall be determined by arbitration in Houston, Texas according to the Arbitration Act.” Below this sentence and above the signature line, the agreement further provides in bold type: "I CERTIFY THAT I HAVE HAD THE OPPORTUNITY TO READ THIS AGREEMENT, INCLUDING THE ARBITRATION PROVISION, AND VOLUNTARILY ENTER INTO THIS AGREEMENT FULLY AWARE OF ALL ITS TERMS AND CONDITIONS.”

      . See Tex. Civ. Prac. & Rem.Code Ann. § 171.098(a)(1) (Vernon 2005).

      . The Texas Arbitration Act is found in sections 171.001-171.098 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Peac. & Rem.Code Ann. §§ 171.001-171.098 (Vernon 2005).

      . We note appellants’ brief cites various Texas statutes defining "personal injury” in support of their proposition that the Texas Legislature did not intend the term “personal injury” to encompass legal malpractice claims. See Tex Code Crim. Proc. Ann. art. 56.32(10) (Vernon Supp.2004) (stating "personal injury” means physical or mental harm); Tex Gov’t Code Ann. § 615.021(e)(l)(A-B) (Vernon Supp. 2004) (stating "personal injury” means an injury resulting from an external force, an activity, or a disease caused by or resulting from a line-of-duty accident or an illness caused by line-of-duty work under hazardous conditions); Tex. Transp. Code Ann. § 541.401(7) (Vernon 1999) (stating “personal injury” means an injury to any part of the human body that requires treatment). These statutes are consistent with the legislative history of the personal injury exclusion from the Texas Arbitration Act restricting the term to physical personal injury.

      . Wilson's first amended original petition asserted legal malpractice, breach of fiduciary duty and breach of contract claims against appellants. Wilson also claimed damages proximately caused by those acts amounted to, among other amounts, $500,000 in mental anguish damages. While Wilson does not assert on appeal that her claim for mental anguish damages bolsters her argument that her claim is one for personal injury, the issue is fairly raised in this appeal.
      As pled in her petition, Wilson's alleged mental anguish damages are the result of economic losses caused by an attorney’s negligence. When a plaintiff's mental anguish is a consequence of economic losses caused by an attorney's negligence, the plaintiff may not recover damages for that mental anguish. Douglas v. Delp, 987 S.W.2d 879, 885 (Tex.1999). Thus, Wilson’s mental anguish damages are not recoverable, and cannot support her assertion that her claim is one for a physical personal injury.

      . See Majority Opinion, 180 S.W.3d at 629, n.4.