author: LESLIE B. YATES, Justice.

text:
    KINGWOOD SPECIALTY HOSPITAL, LTD. and Kingwood Specialty Hospital, Appellants, v. Ramona BARLEY, Appellee.
    No. 14-10-00241-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 28, 2010.

      James B. Edwards, R. Gregg Byrd, Stafford, for appellants.
    Randall 0. Sorrels, Houston, D. Bowen Berry, Andrew Scott Leibowitz, Dallas, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and SULLIVAN.
   OPINION

LESLIE B. YATES, Justice.

Appellants, Kingwood Specialty Hospital, Ltd. and Kingwood Specialty Hospital (collectively, “Kingwood”), bring this interlocutory appeal from the trial court’s denial of their motion to dismiss the medical malpractice claims of appellee, Ramona Barley. In two issues, Kingwood claims that the trial court abused its discretion in denying their motion to dismiss. We affirm the judgment of the trial court.

Background

On August 8, 2007, Ramona Barley was admitted into Kingwood Specialty Hospital for a vaginal hysterectomy. Gregory Beckner, M.D. performed the surgery and released Barley two days after the surgery. On August 12, 2007, Barley went to Kingwood Medical Center complaining of abdominal pain, vaginal discharge, and a foul smell. Barley was in shock, septic, and suffering from respiratory failure. She required a tracheotomy and an emergency laparotomy to remove an infected hemato-ma. Barley’s left foot suffered from gangrene, ultimately resulting in her left leg being amputated below the left knee.

Barley filed her original petition on May 4, 2009, naming Dr. Beckner as the sole defendant. On October 12, 2009, Barley filed her second amended petition naming Kingwood as defendant. Barley served the expert reports and curricula vitae of Akash G. Bhagat, D.O. and Susan D. Owens, R.N., CNOR, RNFA, LNC on King-wood on February 9, 2010, via certified mail. On February 17, 2010, Kingwood objected to Barley’s expert reports as untimely and inadequate, and filed their motion to dismiss on March 1, 2010. Barley filed her motion to overrule Kingwood’s objections on March 3, 2010, and response to the motion to dismiss on March 5, 2010. The trial court signed the orders granting Barley’s motion to overrule Kingwood’s objections and denying Kingwood’s motion to dismiss on March 5, 2010.

In two issues, Kingwood claims that the trial court abused its discretion in denying its motion to dismiss because Barley’s expert reports were not served timely and are not adequate.

Analysis

Timeliness of the Expert Reports

In its first issue, Kingwood argues that the expert reports and curricula vitae of Dr. Bhagat and Owens were not served timely because she did not serve them on Kingwood until 283 days after she filed her original petition. Because Barley filed her original petition on May 4, 2010, Kingwood contends that the 120th day for filing her expert reports was September 1, 2009. Barley responds that the 120-day deadline as to Kingwood was triggered by the filing of her second amended petition on October 12, 2009, in which she first named King-wood as defendant and, therefore, service of her expert reports on it on February 9, 2010, was timely. This court recently held that when a defendant health care provider has been added to a pending suit by amendment of the petition, the 120-day deadline for serving an expert report runs from the date of filing of the first petition naming that particular health care provider. See CHCA W. Houston, L.P. v. Priester, No. 14-09-01077-CV, 2010 WL 3917067, at *3 (Tex.App.-Houston [14th Dist.] Oct. 7, 2010, no pet. h.). Several other courts of appeals have also addressed this issue, reaching the same conclusion.

Section 74.351 of the Civil Practice and Remedies Code requires a health care liability claimant to provide the defendant with an expert report within 120 days after filing the petition. Tex. Crv. PRAC. & Rem. Code Ann. § 74.351(a) (West Supp.2009). Section 74.351(a) provides:

In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.

Id. If the plaintiff does not serve a defendant within 120 days of filing the original petition, the trial court shall dismiss the claim against the particular defendant with prejudice. Id. § 74.351(b).

A trial court’s ruling on a motion to dismiss based on whether an expert report was served timely is reviewed for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (per curiam). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam). Though we may not substitute our judgment for that of the trial court, the trial court has no discretion in determining what the law is or applying the law to the facts. Id.; Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 197 (Tex.App.Houston [14th Dist.] 2009, no pet.).

The court’s objective in construing a statute is to give effect to the Legislature’s intent in enacting it. City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex.2010). A court construes a statute first by looking to the plain and common meaning of the statute’s words. Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009); see also Tex. Civ. PRAC. & Rem.Code Ann. § 74.001(b) (West 2005) (“Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law.”). We determine legislative intent from the statute as a whole, not from isolated portions. Harris County Hosp. Dist, 283 S.W.3d at 842. We presume that the Legislature intended all provisions of a statute to be effective, and that it intended a just and reasonable result. Abbott, 304 S.W.3d at 384.

Before the Legislature amended section 74.351 in 2005, section 74.351(a) required the plaintiff to serve the expert report within 120 days after filing a health care liability claim. See Act of June 11, 2003, 78th Leg. R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended 2005) (current version at Tex. Civ. PraC. & Rem.Code Ann. § 74.351(a)). Section 74.351(a) was amended to require expert reports to be filed not later than 120 day of filing the “original petition” rather than the filing of a “claim” to clarify the timing of when an expert report is due. Methodist Charlton Med. Ctr. v. Steele, 274 S.W.3d 47, 50 (Tex.App.-Dallas 2008, pet. denied). The Legislature rationalized the change as follows:

“Since the passage of House Bill 4 in the 78th Session, there has been some confusion regarding the timing of when an expert report is due on a medical malpractice case. Some have argued that the report is due 120 days from the date of the statutory notice letter, instead of 120 days from the date of the filing of the original petition. It was the intent of HB 4 that the report be triggered by the filing of the lawsuit.”

Stroud, 328 S.W.3d at 564 (quoting House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 2645, 79th Leg., R.S. (2005)).

To determine whether the Legislature intended to limit the expert report window to the 120 days after the first-filed petition, we must read the term “original petition” in the context of the remainder of the statute. Id. Section 74.351(a) prefaces the 120-day expert report requirement by stating “ ‘[i]n a health care liability claim.’ ” Id. (quoting Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a)). A “health care liability claim” is defined as “ ‘a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.’ ” Id. (quoting Tex. Civ. Prao. & Rem.Code Ann. § 74.001(a)(13)). When reading section 74.351(a) as a whole, the expert report requirement is not triggered until the claimant files a cause of action naming a particular physician; it is only then that defendant becomes a “party” to a suit involving a health care liability claim. Id.

Additionally, interpreting the term “original petition” as the first petition in a lawsuit regardless of who is named as a defendant in that petition generates an untenable practical problem. Hayes, 314 S.W.3d at 501. If the 120-day deadline runs from the filing of first petition in a lawsuit regardless of who is named as a defendant, a plaintiff could never add another physician or health care provider as a defendant beyond 120 days of the filing because the plaintiff would never be able to serve an expert report as to that defendant in a timely fashion. Id This would effectively function as a de facto statute of limitations or statute of repose on any further claims against unjoined parties even if the claims against those parties are unknown or undiscoverable at the time of the filing of the initial petition against known defendants. Id. It would also create the potential for unreasonable or unjust results in cases where a plaintiff has no reason to know of viable claims against a party until more than 120 days have run from the filing of claims against other parties. Id.

Kingwood relies on this court’s opinion in Maxwell v. Seifert as requiring Barley to have served her expert reports on them within 120 days of filing the original petition on May 4, 2009. See 237 S.W.3d 423 (Tex.App.[14th Dist] 2008, pet. denied). However, Maxwell is distinguishable. In Maxwell, the defendant physician filed a motion to dismiss based on Maxwell’s failure to serve the expert report timely. Id. at 425. The day before the hearing on the motion to dismiss, Maxwell amended her petition, adding two additional claims for failure to disclose risks and res ipsa loqui-tur. Id. Maxwell argued that adding the failure-to-disclose-risks claim was a distinct health care liability claim from the original negligence claim regarding the performance of the procedure, and a new 120-day time line to file an expert report with regard to her new claim began when she amended her petition. Id. at 426. We held that Maxwell did not file her expert report within 120 days after her original petition was filed, and she did not gain an additional 120 days in which to serve an expert report upon the filing of her amended petition. Id. Maxwell involved the addition of a new claim in an amended petition against a party who was already a defendant in the suit, rather than the naming of new defendants and, therefore, is inapplicable to this case.

Kingwood contends that adopting this interpretation of “original petition” permits piecemeal litigation and creates unwarranted expense for the health care provider where, after a healthcare provider defendant is deposed, an amended petition names other healthcare provider defendants, requiring that the healthcare provider defendant be deposed again. However, discovery in a medical malpractice case is stayed except for the limited discovery permitted by sections 74.851(s) and (u). Tex. Crv. Prac. & Rem.Code AnN. § 74.351(s), (u); In re Lumsden, 291 5.W.3d 456, 459 (Tex.App.-Houston [14th Dist.] 2009, orig. proceeding). When a healthcare defendant challenges the adequacy of an expert report in the appellate court, the report is not adequate and, therefore, not served until the court of appeals determines that it is adequate. Id. at 460. Discovery is stayed as to all health care defendants until final judicial determination that an expert report is adequate. Id. at 461. Barley states that a discovery stay is in place in this case and that no depositions have been taken, which Kingwood does not dispute; only after a determination from this court regarding the trial court’s ruling on Kingwood’s motion to dismiss will the discovery stay be lifted.

We hold that the 120-day deadline for serving expert report on Kingwood did not begin to run until Barley had filed her second amended petition naming it as defendant. Therefore, Kingwood’s first issue is overruled.

Adequacy of the Expert Reports

In its second issue, Kingwood claims Barley’s expert reports do not meet the requirements of Chapter 74 because they did not provide the trial court with a reliable basis on which to rule that Barley’s claims have merit. A defendant may file a motion challenging the adequacy of the expert’s report, and the trial court “s hall grant” the motion if it appears that the report does not represent a good faith effort to comply with the statutory requirements. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (i). A sufficient expert report must provide a fair summary of the expert’s opinions regarding the applicable standard of care, the manner in which the care provided failed to meet that standard, and the causal relationship between that breach and the injury, harm, or damages claimed. Id. § 74.351(r)(6); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex.2001). In providing the expert’s opinion on these elements, the claimant need not marshal his evidence or present sufficient evidence to avoid summary judgment. Palacios, 46 S.W.3d at 878; Methodist Hosp., 296 S.W.3d at 197. Rather, the report must provide enough information to fulfill two purposes: (1) to inform the defendant of the specific conduct the plaintiff has called into question and (2) to provide a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879; Gan- non v. Wyche, 321 S.W.3d 881, 888-89 (Tex.App.-Houston [14th Dist.] 2010, no pet. h.). We review a trial court’s ruling on the adequacy of an expert report and a motion to dismiss based on a failure to meet the expert report requirement for an abuse of discretion. Palacios, 46 S.W.3d at 877; Methodist Hosp., 296 S.W.3d at 197.

Kingwood contends that the expert reports misstate the operative facts affecting the standard of care, breach of the standard of care, proximate cause, and damages and, therefore, did not provide the trial court with a reliable basis for concluding that Barley’s claims have merit. The experts stated or implied in their reports that they reviewed the Kingwood Specialty Hospital and Kingwood Medical Center records. Kingwood submitted the medical records relied upon by the experts to the trial court with its motion to dismiss, arguing that the experts’ review of the medical records opened the door to allow Kingwood to inquire into whether the medical records actually constitute a factual basis supporting the expert opinion, and to the court’s review of the medical records. Kingwood asked the trial court to take notice of the specific medical facts contained in the records affecting the standard of care, breach, proximate cause, and damages. Kingwood argues the trial court had an opportunity to examine the medical records and erred in not doing so. King-wood similarly asks this court to take notice of the specific medical facts contained in the records that were brought to the trial court’s attention.

Kingwood relies on Baptist Hospitals of Southeast Texas v. Carter in support of its contention that the trial court should have reviewed the medical records. See No. 09-08-067-CV, 2008 WL 2917109 (Tex. App.-Beaumont July 31, 2008, no pet.) (mem. op.). In Carter, the hospital introduced copies of the operative reports at the hearing on its objections to the plaintiffs expert report. Id. at *3. The court of appeals rejected the plaintiffs argument that the trial court was limited to the four corners of the expert report in assessing whether it constituted a fair summary of the expert’s opinion. Id. at *3 n. 4. The court of appeals agreed with the hospital’s position that the records reviewed by the expert were relevant to the determination of whether the report adequately related the facts to the expert’s opinion about causation, and reviewed the same records presented to the trial court. Id.

In Collini v. Pustejovsky, the defendant relied on Carter in requesting that the court of appeals review the medical records, claiming that the records demonstrated inconsistencies with the factual statements contained in the expert report. See 280 S.W.3d 456, 462 n. 4 (Tex.App.-Fort Worth 2009, pet. denied). The Fort Worth Court of Appeals disagreed with Carter, and instead relied on the supreme court’s decisions in Palacios and Bowie Memorial Hospital in limiting its “review of the report’s adequacy at this preliminary stage in the proceedings to the specific information and allegations contained within it.” Id. Recently, this court similarly rejected the reasoning in Carter because it is contrary to the supreme court’s instruction in Palacios and Bowie that the inquiry regarding the adequacy of an expert report is limited to the four corners of the report. See Gannon, 321 S.W.3d at 890-92 n. 5. Therefore, both the trial court. and this court are limited to considering the four corners of the expert reports in any determination of the adequacy of the reports. Kingwood’s second issue is overruled.

Conclusion

The trial court did not abuse its discretion in denying Kingwood’s motion to dismiss. Having overruled all of Kingwood’s issues, we affirm the judgment of the trial court.

      . Barley filed her first amended petition on July 29, 2009, without adding any new defendants.

      . Barley also named Memorial Hermann Specialty Hospital Kingwood, LLC as a defendant. However, Memorial Hermann was nonsuited March 4, 2010.

      . See, e.g., Daybreak Cmty. Servs., Inc. v. Cartrite, 320 S.W.3d 865 (Tex.App.-Amarillo 2010, no pet.); Stroud v. Grubb, 328 S.W.3d 561 (Tex.App.-Houston [1st Dist.] 2010, pet. filed); Hayes v. Carroll, 314 S.W.3d 494 (Tex.App.-Austin 2010, no pet.); Padre Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78 (Tex.App.-Corpus Christi 2010, no pet.); Arizpe v. Wilcox, No. 04-09-00408-CV, 2010 WL 1708285 (Tex.App.-San Antonio Apr. 28, 2010, pet. denied) (mem. op.); Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404 (Tex.App.-San Antonio July 1, 2009, pet. denied) (mem. op.).

      . See also Hayes, 314 S.W.3d at 500-01 ("[A] construction of section 74.351(a) that interprets the term ‘original petition’ as being the first document filed in a case that brings a claim against a defendant or constitutes the filing of a lawsuit against a defendant is consistent with the available legislative history on die issue.”); Padre Behavioral Health Sys., LLC, 310 S.W.3d at 85 (holding 120-day period is triggered by first-filed petition naming defendant physician or health care provider); Daybreak Cmty. Servs., Inc., 320 S.W.3d at 872-73 (holding, because defendant was served within 120 days of first-filed petition naming it as defendant, trial court did not abuse its discretion in denying motion to dismiss base on untimely expert report); Osonma, 2009 WL 1900404, at *2 (holding section 74.35 l(a)’s requirement that plaintiff serve expert report explaining each defendant physician’s or health care provider’s liability within 120 days from filing of original petition does not necessarily refer to first-filed petition in lawsuit; instead, it refers to first-filed petition naming that defendant physician or health care provider as party to lawsuit).

      . See also Osonma, 2009 WL 1900404, at *2 (adopting defendants’ interpretation would lead to absurd results: "after more than 120 days after filing a lawsuit, even if the statute of limitations period had not expired, a plaintiff could never add another physician or health care provider as a defendant because she would never be able to timely serve an expert report on such a defendant”); Stroud, 328 S.W.3d 561 (adopting defendant's interpretation would have practical effect of prohibiting claimant from adding additional defendants more than 120 days after filing initial petition, even if statute of limitations has not expired).

      . Moreover, holding that the 120-day deadline does not begin to run until the petition naming the particular health care defendant does not "frustrate[ ] the legislature's purpose to ‘remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard-and-fast deadlines for the serving of expert reports’ so long as each affected physician or health care provider, in 3, health care liability claim, is provided an expert report, delineating the applicable standard of care, how that standard of care was breached, and how the breach of the standard of care, proximately caused the injuries sustained, within 120 days of the claimant’s lawsuit against the particular defendant.” Padre Behavioral Health Sys., LLC, 310 S.W.3d at 85.

      . See Bowie Mem’l Hosp., 79 S.W.3d at 52 ("The trial court should look no further than the report itself, because all the information relevant to the inquiry is contained within the document’s four corners.”); Palacios, 46 S.W.3d at 878 ("Because the statute focuses on what the report discusses, the only information relevant to the inquiry is within the four corners of the document.”).

      . See also Maris v. Hendricks, 262 S.W.3d 379, 386 (Tex.App.-Fort Worth 2008, pet. denied) (holding that physician’s assistant could not rely on excerpts of expert’s deposition testimony to establish that expert was not qualified to provide expert testimony because such excerpts were not included within four corners of report); Mem'l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (refusing to consider expert's deposition testimony because court's analysis of qualifications of expert under section 74.351 was limited to four corners of expert's report and curriculum vitae); In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, orig. proceeding) Refusing to take hearing record or expert's testimony into account in determining expert’s qualifications to provide expert report).

      . In its motion to dismiss, Kingwood raised specific objections to Barley’s expert reports related to purported misstatements of facts and omissions regarding the medical records. However, Kingwood has not raised or briefed those specific objections in this appeal. In any event, our review of the adequacy of the expert reports in this interlocutory appeal is limited to the four corners of the expert reports.


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    Catherine BELL, Appellant, v. Christopher CAMPBELL, Appellee.
    No. 08-09-00247-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 3, 2010.

      Luis C. Labrado, El Paso, TX, for Appellant.
    Cori A. Harbour, The Harbour Law Firm, P.C., El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

In two issues, Catherine Bell, Appellant, complains that the trial court abused its discretion when it named Christopher Campbell, Appellee, joint managing conservator with the exclusive right to establish the primary residence of their child. We affirm.

BACKGROUND

Appellant and Appellee married in 2004 and their child, A.C., was born in February 2005. Appellant enlisted in the Army in November 2005, and was stationed at Fort Bragg, North Carolina. After separating in the latter part of 2005, Appellant petitioned for divorce and- Appellee filed a counter petition for divorce. After a temporary-orders hearing in February 2007, which was conducted in Appellant’s absence while she was deployed by the U.S. Army to Afghanistan, the trial court named both parties joint managing conservators with Appellee having the exclusive right to designate the temporary primary residence of A.C. within El Paso County. Later, a final hearing was held, and after considering the testimony of the parties and their relatives, the trial court granted the divorce, named Appellant and Appellee joint managing conservators, and awarded Appellee the exclusive right to designate AC.’s primary residence within El Paso County.

DISCUSSION

Appellant complains that the trial court abused its discretion in granting Appellee the exclusive right to establish the residence of A.C. because: (1) for the last two years, Appellee failed to comply with the trial court’s temporary order that he attend Children Cope With Divorce, also known as “COPE,” a class designed to teach effective parenting during separation and divorce; and (2) the evidence demonstrated that such appointment was not in the best interest of A.C.

Standard of Review

The Family Code authorizes a trial court to name both parents joint managing conservators if it finds such designation to be in the best interest of the child. Tex. Fam.Code Ann. §§ 153.002, 153.184(a) (Vernon 2008). The trial court is also required, in its order, to designate one of the joint managing conservators as having the exclusive right to determine the child’s primary residence, to allocate other rights and responsibilities of the parents, and to include, among other requirements, provisions to minimize disruption of the child’s education, daily routine, and association with friends. Tex. Fam.Code Ann. § 153.134(b) (Vernon 2008).

We review a trial court’s order regarding conservatorship under an abuse-of-discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Cisneros v. Dingbaum, 224 S.W.3d 245, 257 (Tex.App.-El Paso 2005, no pet.). A trial court abuses its discretion when it acts arbitrarily and unreasonably or without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Upon determining that the abuse-of-discretion-standard applies, we engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? Cisneros, 224 S.W.3d at 257, citing Franco v. Franco, 81 S.W.3d 319, 333 (Tex.App.-El Paso 2002, no pet.).

We recognize that the trial court is best situated to observe the demeanor and personalities of the witnesses and can “feel” the forces, powers, and influences that cannot be discerned by merely reading the record. Cisneros, 224 S.W.3d at 257, citing Bates v. Tesar, 81 S.W.3d 411, 424 (Tex.App.-El Paso 2002, no pet.) and Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex.App.-El Paso 2000, no pet.). Consequently, we afford trial courts wide latitude in determining the best interests of the child. Gillespie, 644 S.W.2d at 451. Therefore, we cannot conclude that the trial court abused its discretion simply because we may have ruled differently under the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). If some evidence of a substantive and probative character exists to support the trial court’s decision, no abuse of discretion has occurred. Cisneros, 224 S.W.3d at 257; Bates, 81 S.W.3d at 424-25; Jenkins, 16 S.W.3d at 477.

Best-Interest-of-Child Evidence

Temporary-Orders Hearing

After entering the Army and separating from Appellee, Appellant’s parents cared for A.C., and when the temporary-orders hearing was conducted in February 2007, Appellant had been deployed to and was stationed in Afghanistan. At the temporary-orders hearing, Appellee, when asked who would take care of A.C. while he was at work, first responded “a babysitter.” However, Appellee admitted that the babysitter was his girlfriend, Esther, with whom he had lived for approximately one year at that time. In its temporary orders, the trial court, in part, named Ap-pellee a temporary joint managing conservator, gave him a temporary, exclusive right to designate A.C.’s primary residence in El Paso, prohibited him from permitting an unrelated adult, with whom he had an intimate or dating relationship, to remain in the residence with the child from 8 a.m. to 8 p.m., and required that he attend the COPE program.

Final Divorce Hearing

At the final divorce hearing, the trial court judicially noticed that Appellee previously testified that his girlfriend and babysitter, Esther, had been living with him. Appellee admitted that he had violated the trial court’s temporary orders requiring him to attend the COPE program and prohibiting him from permitting an unrelated adult with whom he had an intimate or dating relationship to remain in the residence with the child from 8 a.m. to 8 p.m. During both his separation from Appellant and the pendency of the divorce proceedings, Appellee had not only been living with Esther but had fathered their two children as well.

The trial court also considered evidence that since the parties’ separation in November 2005, Appellee had been employed in four or five different jobs and had resided in four or five different locations. At the time of the final divorce hearing, Ap-pellee was working the graveyard shift at Wal-Mart and also held a part-time job, working more than 60 hours per week. He testified that he planned to enroll A.C. in elementary school at age five.

There were no allegations of mental or physical abuse although the trial court heard evidence that A.C. had received a burn to her forehead after running towards Appellee or Esther, one of whom was holding a cigarette. Appellee’s mother, Ms. Ramos, who worked at a medical clinic, testified that she applied a cream used for radiological burns to A.C.’s burn. Although Appellant’s mother, Ms. Allen, took a photograph of the burn which was admitted into evidence, it is not contained in the appellate record. Appellee informed Appellant about the incident and explained that it was an accident.

On another occasion, Ms. Ramos observed that A.C. had an infection. She notified Appellee, who then directed her to request that Ms. Allen, who had the insurance card and a medical power of attorney, to take A.C. for medical care. Ms. Allen took A.C. to an Army hospital from which A.C. was transferred by ambulance to another hospital, where she spent three days receiving medical care. Ms. Allen accompanied A.C. in the ambulance during her transfer. Appellee arrived at the second hospital and was present while Ms. Allen completed the admission papers. Ms. Allen spent the night at the hospital with A.C., but Appellee did not as he needed to go to work. Appellee, his mother, and his stepfather visited A.C. while she was hospitalized.

Before he was named joint managing conservator, Appellee provided four or five payments of $ 100-$ 150 towards A.C.’s care. Evidence was also presented that Appellee would play with A.C., take her to the park and to the movies, cooked for her, and bathed her. Appellee stated that he had a special bond with A.C. and he was seeking to have custody of her because he felt A.C. would suffer if removed from the family members with whom she had been interacting since she was born, including his and Appellant’s parents and other family members. Appellee testified that he did not own a computer and did not believe he could afford to travel to visit A.C. in North Carolina based upon his earnings.

The evidence showed that Appellant had been an enlisted member of the United States Army for several years, was stationed at Fort Bragg, North Carolina, was in a stable work environment and was progressing admirably in her profession, from which she hoped to retire after twenty or thirty years of service. As a result of her employment, Appellant was providing A.C. with medical, dental, and vision benefits. Appellant also explained the opportunities and restrictions related to her requests to be stationed in or near El Paso, where A.C. and all of the child’s other family members were living. In support of her request to have the exclusive right to determine A.C.’s permanent residence, the evidence showed that if A.C. was permitted to live with Appellant, Appellant could work a shift that comported with A.C.’s schedule and would permit them to have more time together, and that A.C. would have access to: (1) good schools and daycare; (2) a varied cultural community; (3) community programs; and (4) worldwide travel to non-combat areas.

Appellee testified that Appellant is a very good and loving mother who is capable of caring for A.C. When in El Paso, Appellee had permitted Appellant to have almost unfettered access to A.C. When not in El Paso, Appellant communicated with A.C. by telephone and through the use of web cameras, and Appellant stated that she was willing to purchase the equipment necessary for Appellee to maintain visual communication with A.C. in the event she obtained the exclusive right to designate A.C.’s primary residence. Appellant testified that she was in favor of Appellee and A.C.’s grandparents having access to A.C. and, while unaware of some potential financial responsibilities for securing the travel necessary to allow Appel-lee and the grandparents to visit A.C. or vice-versa, Appellant was generally agreeable to paying those necessary costs. If assigned overseas, Appellant said she would like to take A.C. with her and was willing to pay all expenses to send A.C. to spend the summer with Appellee.

Appellant stated that she was not in any other personal relationship because being involved in a relationship with anyone other than Appellee, to whom she was still married, could result in her being dishonorably discharged from the Army and losing insurance coverage for A.C.

After reviewing the record, we find that the trial court’s decision to appoint Appel-lee joint managing conservator with the exclusive right to establish primary residence falls within the zone of reasonable disagreement. The trial court was aware of Appellee’s non-compliance with its temporary orders and the other complained-of evidence raised in Appellant’s appeal. As the testimony showed, by residing in El Paso, A.C. would have access to all of her family members, including Appellant when Appellant was able to return home. Additionally, all of A.C.’s family members in El Paso, including Appellant when not in El Paso, had communicated and cooperated well together in furtherance of A.C.’s care and well-being. A.C. was being well-provided for and was not being mistreated or abused. Therefore, we find the trial court had sufficient, substantive, and probative evidence upon which to exercise its discretion. Cisneros, 224 S.W.3d at 257, citing Franco, 81 S.W.3d at 333. Considering all the evidence presented to the trial court, we conclude that the trial court did not abuse its discretion in appointing Appellee to serve as the joint managing conservator with the exclusive right to establish A.C.’s primary residence. Id. Appellant’s issues on appeal are overruled.

CONCLUSION

The trial court’s judgment is affirmed.

      . Appellee testified that he did not attend the COPE classes because he did not know what COPE was.

      . The cream was originally prescribed for Ap-pellee’s grandmother.

      .Although the temporary orders awarded Ap-pellee the independent right to consent to medical and other care for A.C., the evidence indicated that he did not have a full understanding of this right.


author: TERRY McCALL, Justice.

text:
    SUPERIOR ENERGY SERVICES, INC. and SESI, LLC, Appellants, v. SONIC PETROLEUM SERVICES, LTD. and Lonnie’s Well Service Co., General Partner, Appellees.
    No. 11-10-00067-CV.
    Court of Appeals of Texas, Eastland.
    Nov. 4, 2010.

      Harper Estes, B. Blue Hyatt, Lynch Chappell & Alsup, P.C., Midland, for appellants.
    J. Ken Nunley, Kelly Putney Rogers, Randal Patterson, Ryan C. Reed, George Ann Maixner, The Nunley Firm, LLP, Boerne, Randal Patterson, Odessa, for ap-pellees.
    Panel consists of WRIGHT, C. J., McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

In this interlocutory appeal, Superior Energy Services, Inc. (Superior) and SESI, LLC (SESI) appeal the trial court’s orders overruling their special appearance motions. The record demonstrates that both companies have the requisite contacts with Texas and that jurisdiction over them in the underlying suit would not violate constitutional guarantees of substantive due process. We affirm.

Background

Brian Shoemaker was a limited partner in and manager of Sonic Petroleum Services, Ltd., whose principal place of business is in Odessa. Sonic furnishes specialized rental equipment and tools to the oil and gas industry in West Texas. The general partner of Sonic is Lonnie’s Well Service Co.; both parties will be referred to as Sonic.

According to its annual report, Superior manufactures, sells, and rents specialized equipment used in offshore and onshore oil and gas drilling. One of Superior’s four business segments is its rental tool segment. Superior’s rental tool segment has locations in “all of the major staging points in Louisiana and Texas for oil and gas activities.” Blowout Tools, Inc. (BTI) is a subsidiary of Wild Well Control, Inc. (Wild Well); BTI and Wild Well are part of the rental tool segment. Wild Well is a subsidiary of SESI, which is owned by Superi- or. Superior also owns a subsidiary named Superior Energy Services, L.L.C., that has extensive operations in Texas.

BTI, Wild Well, Superior, and SESI wanted to expand BTI’s and Wild Well’s oilfield equipment rental business in West Texas. Westy Ballard, an employee of SESI, called Jackie Manning to see if the partners of Sonic had an interest in selling Sonic. After Manning indicated they had no interest, BTI hired Shoemaker. Superior funded the new business with $3.6 million.

In the underlying lawsuit to this appeal, Sonic sued Shoemaker, BTI, Wild Well, SESI, Superior Energy Services, L.L.C., and Superior. Superior and SESI entered special appearances, which, after an evi-dentiary hearing, were overruled by the trial court. In this appeal, Superior and SESI argue that the only rationale for exercising jurisdiction over a parent corporation is if the parent corporation exercises such control and dominance over its subsidiary that they are in reality one and the same corporation for purposes of jurisdiction. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798 (Tex.2002). Relying on that principle, Superior and SESI argue that there is no evidence that Superior and SESI exercise such control and dominance over BTI and Wild Well.

Sonic contends that the control argument made by Superior and SESI is not relevant. Sonic asserts that its claims against Superior and SESI are based on them own operations in Texas and their actions in facilitating Shoemaker’s alleged breach of his partnership agreement with Sonic and his breach of fiduciary duties to Sonic. Sonic also asserts claims against Superior and SESI for tortious interference with contract and business relations, for misappropriation and theft of trade secrets and proprietary business information, for unjust enrichment, and for liability as principals and being part of a conspiracy.

Law

Texas courts have personal jurisdiction over a nonresident defendant when (1) the Texas long-arm statute provides for it and (2) the exercise of jurisdiction is consistent with federal and state due process guarantees. Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex.2010); Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002). The long-arm statute reaches “as far as the federal constitutional requirements of due process will allow.” Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

Personal jurisdiction over nonresident defendants is constitutional only when (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. Int’l Shoe Co. v. State of Washington, Office of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A defendant’s contacts with a forum can give rise to either specific or general jurisdiction. Spir Star AG, 310 S.W.3d at 872; CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). General jurisdiction exists when a defendant’s contacts are continuous and systematic, even if the cause of action did not arise from activities performed in the forum state. Specific jurisdiction exists when the alleged liability alises from or is related to the defendant’s activities conducted within the forum. CSR Ltd., 925 S.W.2d at 595.

The trial court held an evidentiary hearing on the special appearance motions of Superior and SESI. Because the trial court made no findings in this case, all facts necessary to support the trial court’s judgment are implied. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Superior and SESI have challenged the sufficiency of the evidence; therefore, the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 715 (Tex.App.-Austin 2000, pet. dism’d w.o.j.).

Issue on Appeal

Superior and SESI’s issue on appeal is whether the trial court erred by overruling their special appearances. Superior and SESI then break that issue down into sub-issues, e.g., whether Sonic met its burden of pleading specific jurisdictional facts that support either specific or general jurisdiction over Superior and SESI. The sub-issues will be addressed in our discussion of the principal issue.

Analysis

Sonic pleaded that Superior and SESI purposefully availed themselves of the privileges and benefits of conducting business in Texas by engaging in business in Texas; marketing their services and that of their subsidiaries in Texas through the website www.superiorenergy.com; recruiting employees through that website; providing funding to subsidiary companies in Texas for the purposes of expansion, capital expenditures, etc.; having officers in Texas (e.g., Patrick Campbell, executive vice president, Technical Solutions Group, Superior Energy Services, Inc., 2202 Oil Center Court, Houston, Texas); having their officers and employees assist subsidiary companies with the potential purchase of Sonic; and having their officers and employees assist with (a) the recruiting of Shoemaker from Sonic and (b) the formation and development of BTI’s Odessa branch with Sonic’s proprietary and confidential information, which was done tor-tiously and for which Sonic sued.

Sonic’s pleadings relate in detail its version of how SESI contacted a Sonic partner to see if Sonic could be acquired and, having been rebuffed, Superior and SESI then chose to start and fund with $3.6 million dollars a new venture in West Texas to compete with Sonic by recruiting Shoemaker and his team to BTI. Sonic alleges that those actions caused Shoemaker to breach his fiduciary duty to Sonic; to breach his limited partnership agreement with Sonic; and to misappropriate and take trade secrets, key employees, and proprietary business information with him. Sonic’s pleadings contained sufficient jurisdictional facts to support specific or general jurisdiction over Superior and SESI. Superior and SESI were entitled to challenge those pleadings, and they did by their special appearance.

In support of its special appearance motion and to rebut Sonic’s allegations, Superior filed an affidavit by Danny Young, Superior’s executive vice president of corporate services. Young stated in his affidavit that Superior was a “completely separate and distinct corporate entity from each of its subsidiaries” and that it did not exert domination or control over any of its subsidiaries, including Wild Well and BTI. He further stated that Superior had no officers or directors based in Texas until 2009 when Campbell became the executive vice president of Technical Solutions for Superior, that Campbell was an employee of SESI — not Superior, and that Superi- or’s website was not interactive. Finally, Young stated that Superior was not a resident of Texas and conducted no business in Texas.

In objecting to jurisdiction by a Texas court, SESI also emphasized that it did not exert control and dominance over its subsidiaries in Texas. SESI attached the affidavit of William B. Masters, executive vice president and general counsel of Superior. He stated that SESI was only qualified to do business in Delaware and Louisiana; that SESI was a completely separate and distinct corporate entity from each subsidiary; that it did not exert domination or control over any subsidiary, including Wild Well or BTI; and that SESI and its subsidiaries shared very few corporate services that are provided by SESI, a wholly owned subsidiary of Superior. Those services were certain benefits such as the 401 (k) plan, insurance, cash management, and to a limited extent legal and human resources support services.

Masters also stated that Campbell was an executive vice president of technical solutions for Superior and an employee of SESI and that Campbell resided in Texas; therefore, Masters acknowledged that SESI was “amenable to service and jurisdiction in Texas.” He then added, “Patrick Campbell, however, did not become an employee of SESI, LLC until the early part of 2009 which was well after this lawsuit arose and well after BTI and Wild Well Control were sued.” Masters acknowledged that Westy Ballard, a vice president and employee of SESI, had a short conversation with Manning of Sonic on August 20, 2007. Masters also stated that Ballard had never spoken to Shoemaker and that “Ballard did not travel to Texas to meet with anyone associated with Plaintiff. His contact was merely by phone to determine whether or not there was a possibility of Superior acquiring Sonic.”

As noted in Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex.2005), the touchstone of jurisdictional due process has been “purposeful availment.” Id. at 784. It is only the defendant’s contacts with the forum that count. Purposeful availment “ensures that a defendant will not be haled into a jurisdiction solely as a result of ... the ‘unilateral activity of another party or a third person.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Second, the acts relied on must be “purposeful” rather than fortuitous. Id. Third, a defendant must seek some benefit, advantage, or profit by “availing” itself of the jurisdiction. Michi-ana Easy Livin’ Country, 168 S.W.3d at 785.

Factors Supporting General Jurisdiction

We need not discuss whether the affidavits of Young and Masters were sufficient to negate Sonic’s pleadings. Sonic introduced unrebutted evidence supporting its pleading allegations that Superior and SESI have had enough contacts with Texas to support a holding that the Texas court had general and specific jurisdiction over them. On appeal, we consider all of the evidence before the trial court on the question of jurisdiction. Fish v. Tandy Corp., 948 S.W.2d 886, 891 (Tex.App.-Fort Worth 1997, writ denied).

General jurisdiction may be asserted when the cause of action does not arise from or relate to the nonresident defendant’s purposeful conduct within the forum state but when there are continuous and systematic contacts between the nonresident defendant and the forum state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

Sonic introduced copies of Superior’s 2008 annual report, Form 10-K filed with the Securities and Exchange Commission, portions of depositions, and organizational charts and other information from Superi- or’s website. In the Form 10-K, Superior states under “Facilities”: “We also own certain facilities and lease other office, service and assembly facilities under various operating leases, including a 7-acre office and training facility located in Houston, Texas.” Under the description of its business, the discussion is in terms of Superior being one company. For example, there is the statement: “We believe we are a leading provider of rental tools. We manufacture, sell and rent specialized equipment for use with offshore and onshore oil and gas well drilling, completion, production and workover activities.” This statement is typical of the description of Superior’s business. Exhibits to the Form 10-K include “Exhibit 21.1 Subsidiaries of the Company”; however, this exhibit is not included in the record.

In its annual report, Superior states: “Through the Power of One, we ... deliver and execute solutions as one seamless unit operating under one common culture.” The annual report also states: “We also own ... a 7-acre office and training facility located in Houston, Texas.” Superior and SESI argue that Superior’s annual report was drafted pursuant to the Securities and Exchange Commission’s Regulation S-K. Our special-appearance jurisprudence dictates that the plaintiff and defendant b.ear shifting burdens of proof in a challenge to personal jurisdiction. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.2010). Superior and SESI introduced no evidence to rebut Superior’s statement that it owned a seven-acre office and training facility in Texas.

Statements in annual reports and Form 10-Ks are pertinent evidence. In denying Daimler-Benz’s special appearance motion in Olson, the Austin Court of Appeals noted their importance:

In Daimler-Benz’s annual shareholder-reports from 1990 through 1995, management’s business review consistently discussed sales of Mercedes-Benz cars in the U.S. in terms of “our” sales and the number of cars “we sold.”
[Wjhile formally separate, Daimler-Benz and [Mercedes Benz of North America] form a functional whole in promoting and marketing vehicles in Texas.

Olson, 21 S.W.3d at 722, 723.

In the record before us, Superior projected that it and its companies and divisions were a functional whole in promoting and marketing equipment and seiwices to the oil and gas industry in Texas. In Olson, the court was engaged in jurisdictional veil-piercing that involved Daimler-Benz Aktiengesellschaft, the parent corporation in Germany, and Mercedes-Benz of North America, the sole importer and distributor in the United States of Mercedes-Benz cars and parts. Aside from the question of jurisdictional veil-piercing between BTI (and other subsidiary corporations) and Superior, we are also trying to determine the direct contacts that Superi- or and SESI have had with Texas. Campbell testified that Superior has internal divisions, and the chart on Superior’s website so indicates. Superior’s references to “we” supported an interpretation by the trial court that an internal division of Superior owned seven acres and an office in Texas.

Sonic joined Superior and SESI as defendants in May 2009. Sonic points out that Campbell testified that he became an executive vice president of Superior in April 2009 and an employee of SESI in early 2009. Prior to that, he was the president and chief executive officer of Wild Well and reported to James Holle-man, an executive vice president of Superi- or. The new president of Wild Well now reports to Campbell. Superior and SESI admit that Campbell is an officer of Superior, an employee of SESI, resides in Texas, and has an office in Houston. His business card indicates that Superior has an office at 2202 Oil Center Court in Houston. Wild Well’s principal offices are also at that address. The “Engineering & Project Management” division of Superior is also located at 2202 Oil Center Court.

Superior and SESI argue that Campbell did not become an officer of Superior and an employee of SESI until after the filing of the suit by Sonic; therefore, these factors did not subject Superior and SESI to the Texas court’s jurisdiction. They rely on PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163 (Tex.2007), for their position.

PHC-Minden involved the issue of general jurisdiction, and the general jurisdiction analysis is dispute-blind. Campbell’s activities and representations of Superior and SESI in Texas were contacts of Superior and SESI with Texas for purposes of general jurisdiction. By placing an active executive vice president in Texas, Superior has availed itself of the benefits of operating in Texas. But there are two problems. The record reflects that Campbell’s activities as an officer and employee of Superior and SESI were not over a substantial period before Sonic served notice of the lawsuit against Superior by serving Campbell. Secondly, Superior and SESI may be correct that the time this suit was filed was when it was first filed against Shoemaker and the others.

It is noteworthy that Campbell testified that Superior had a number of subsidiary companies, some of which were divisions of Superior:

A: Well Superior has a broad variety of subsidiary companies and some which are part and parcel of Superior, not— not regarded as a separate subsidiary, if you will.
Q: Might have internal divisions?
A: Correct.

A division of a corporation is not a separate legal entity but is the corporation itself. W. Beef, Inc. v. Compton Inv. Co., 611 F.2d 587, 591 (5th Cir.1980). Sonic introduced an organizational chart of Superior that appears on its website. That chart on the left-hand side lists the organizations of Superior under the label “Division/Department.” A division may be considered to be an internal division of a corporation (such as Superior) or a division might consist of a group of separate subsidiary companies. The trial court could have reasonably considered “division” to mean internal divisions of Superior based on Campbell’s testimony. Reading Superi- or’s annual report and Form 10-K leads one to conclude that Superior wanted the reader to consider Superior as an integrated company whether the particular operation was a division of the parent, a separate subsidiary corporation, or a division of a subsidiary corporation.

In the chart from the website, one “Division/Department” is named “Superior Energy Services” with a sales office at 11000 Equity Drive in Houston and engineering and project management at 2202 Oil Center Court in Houston. There is a “Division/Department” named “H B Rentals” that has employees located in Alice, Al-vord, Fairfield, Liverpool, Midland, and Houston, Texas. A “Division/Department” named “Stabil Drill” has employee locations in Corpus Christi, Houston, and Midland. A “Division/Department” named “Sub Surface Tools” has employee locations in Bridgeport and Corpus Christi. Under the “Division/Department” named “Superior Energy Services,” there are employee locations at Houston, Brookshire, Longview, and Alvin. “Superior Energy Services” could refer to Superior Energy Services, Inc. or Superior Energy Services, L.L.C., or both. A “Division/Department” named “Warrior Energy Services” has employees in Longview, Odessa, Decatur, Victoria, Rosharon, Tyler, Houston, Corpus Christi, and Cleburne. Wild Well, a defendant in this case, is listed as a “Division/Department.” There is no indication that it is a corporation, but there is evidence elsewhere in the record that it is. However, the listing of one corporation under “Division/Department” does not lead to a conclusion that all the “Division/Departments” are corporations.

Superior and SESI could have introduced an organizational chart with testimony by an officer that explained whether “division” in the chart included internal divisions. They did not.

Sonic attempted to learn about the structure of Superior by taking the deposition of Westy Ballard, vice president of corporate development of SESI. One would normally think that the vice president of corporate development of a company would know the corporate structure of the company. Yet, Ballard stated flatly that he did not know the organizational structure of Superior or its family of companies even though he also stated that he was “responsible for sourcing, analyzing and executing mergers, acquisitions, and strategic alliances.” Ballard testified that his supervisor was Guy Cook who was the executive vice president of rental tools, a division that rents drilling-related rental tools. Ballard was then asked the following:

Q. When you say [Cook is] an executive vice president of a division within our company, which company are you speaking of?
A. I don’t know. I mean, I know that he’s employed, his office is next to mine, but I don’t know what company he’s an employee of or the rental tool division is under what company. I don’t know.

Superior’s website lists Guy Cook as executive vice president, rental tools of Superi- or.

In the conclusion to its special appearance motion, Superior gave two reasons in support of its motion: (1) Superior does not exert dominance over its subsidiaries and (2) Superior’s website is passive. In his affidavit, Young stated that Superior had no officers or directors based in Texas until Campbell became an officer of Superior and an employee of SESI. He does not state that Superior had no employees or internal divisions in Texas. Young did state that Superior “conducts no business” in Texas. The evidence of Sonic was to the contrary, and Superior had the burden to explain and rebut that evidence. The trial court was entitled to believe Sonic.

In their reply brief, Superior and SESI argue that, even though the Superior annual report states: “We also own ... a 7-acre office and training facility located in Houston, Texas,” Superior does not “own” property in Texas. They cite to Young’s affidavit as evidence that Superior “owns no property” in Texas. Nowhere in Young’s affidavit does he state that Superi- or does not “own” property in Texas, nor did Young state that Superior did not “lease” property in Texas. Young did state that Superior “is not a resident of the State of Texas,” but that was simply a statement that Superior was a nonresident. The issue is whether that nonresident had meaningful contacts with Texas.

In his affidavit, Masters also concentrates on how separate SESI is from each of its subsidiaries and that they share corporate services to a limited extent. SESI also had the burden to explain and rebut Sonic’s evidence.

In Superior and SESI’s brief, they state that “Superior has no offices in Texas, no employees in Texas and no bank accounts in Texas. It has never owned, leased, rented or controlled real property in Texas and has never paid taxes in Texas.” Superior and SESI cite Young’s affidavit for these statements. Young’s affidavit does not support these statements.

Given the record before this court, it is easy to be confused about Superior and its subsidiaries. In their statement of the case, Superior and SESI stated that Superior Energy Services, Inc. and Superior Energy Services, L.L.C., although having similar names, are separate and distinct corporate entities from one another. According to Superior and SESI, Superior Energy Services, L.L.C. is a direct subsidiary of SESI, LLC and an indirect subsidiary of Superior Energy Services, Inc. Appellants refer to the clerk’s record at page 141 as the evidence for that statement. The chart on page 141 is confusing. There is a Superior Energy Services, L.L.C., but under that name is a note “Disregarded Entity.” It took a magnifying glass to discern that note. Of the thirty-three entities that appear to be owned by SESI, L.L.C., a number have the note “disregarded entity,” some have the note “partnership,” some “foreign corporation,” some “corporation,” and some have no note below the name.

Superior’s annual report, Form 10-K, website, and the employment forms signed by Shoemaker lead one to the logical conclusion that Superior desires to be thought of as an integrated whole by investors, employees, and anyone else. After the introduction of Sonic’s evidence without evidence to the contrary, we cannot say that the trial court erred.

Sonic’s evidence was legally and factually sufficient to support implied findings by the trial court that Superior and SESI had and have substantial activities in Texas that are continuous and systematic, aside from specific activities by Superior and SESI that relate to this litigation. Superior and SESI had the burden of negating all jurisdictional bases. BMC Software Belgium, 83 S.W.3d at 793-94; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). Contrary to the argument of Superior and SESI, Sonic did not have to show exertion of dominance or control of BTI and Wild Well given the evidence it introduced at the hearing. We hold that, based on the record before us, there was evidence of sufficient contacts with Texas for the trial court to hold that it had general jurisdiction over Superior and Sonic.

Specific Jurisdiction

Specific jurisdiction is established if the defendant’s alleged liability arises from or is related to an activity conducted within the forum. BMC Software Belgium, 83 S.W.3d at 796; Guardian Royal, 815 S.W.2d at 228. Again, we must presume that all factual disputes were resolved in favor of the trial court’s ruling. Spir Star AG, 310 S.W.3d at 871-72. All facts necessary to support the judgment and supported by the evidence are implied. BMC Software Belgium, 83 S.W.3d at 795.

Sonic alleged and presented evidence that officers and employees of Superior and SESI were involved in the alleged torts involved in hiring Shoemaker. As stated earlier, Texas courts may exercise personal jurisdiction over a nonresident defendant if (1) the Texas long-arm statute permits the exercise of jurisdiction and (2) the assertion of jurisdiction is consistent with federal and state constitutional due process guarantees. Kelly, 301 S.W.3d at 657; Mold Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007). The long-arm statute provides a nonexclusive list of what constitutes “doing business” in Texas, including (1) contracting with a Texas resident and either party is required to perform the contract in whole or in part in Texas; (2) committing a tort in Texas; or (3) recruiting Texas residents for employment, both in and out of the state. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2008); BMC Software Belgium, 83 S.W.3d at 795. Although the first one is not involved here, Sonic alleged and provided evidence relating to the other two.

Texas has an interest in enforcing the provision of its long-arm statute that specifically subjects nonresidents who re-emit Texas residents to personal jurisdiction in Texas. Moreno v. Poverty Point Produce, Inc., 243 F.R.D. 265, 271 (S.D.Tex.2007); see Gonsalez Moreno v. Milk Train, Inc., 182 F.Supp.2d 590, 594-95 (W.D.Tex.2002) (jurisdiction proper where defendant, through intermediary, recruited Texas residents to work in New York and reimbursed them travel expenses). Also in point is Innovative Therapies, Inc. v. Kinetic Concepts, Inc., 328 S.W.3d 545 (Tex.App.-San Antonio 2010, pet. filed), where the court held that the nonresident corporation, Innovative Therapies, purposefully availed itself of benefits of conducting activities in Texas where it employed the chief engineer of the Texas company, KCI.

Sonic provided evidence that in the years 2006 and 2007, BTI, Wild Well, Superior, and SESI were discussing how to expand Superior’s West Texas rental tool operations. The alternatives were (1) to acquire Sonic or (2) to simply hire Shoemaker and his team away from Sonic, and Superior would then fund their operation with $3.6 million. Ballard of SESI made one telephone call to Manning, a substantial owner of Sonic, to see if Sonic was available for sale. Ballard testified that Manning had no interest. Campbell testified that Ballard and Cook, an executive vice president of Superior, advised him that Manning was not interested in selling Sonic. Because Manning evidenced little or no interest in a sale of Sonic, Superior and SESI decided to hire and fund Shoemaker to expand their rental tool business expansion into West Texas.

Steven Norris, general manager of BTI, testified that BTI was part of the Wild Well subsidiary division, but he did not know what type of entity BTI was. Bill Mahler is his immediate superior. Norris and Shoemaker had been friends for years and had stayed in touch; Norris knew Shoemaker was the manager and had an interest in Sonic. In 2006, Noxtís let Shoemaker know that BTI would be intei'-ested in discussing an acquisition of Sonic or employing Shoemaker, but at that time, Shoemaker was not interested. Campbell, president of Wild Well at the time, directed Norris to contact Pat Bernard and Cook of Superior to discuss how to expand into West Texas. Norris testified that Bernard and Cook would come over periodically to the Drilling Technology Center in Houston for discussions. Noxtís told Bernard and Cook that Shoemaker was a key pex-son to expanding in West Texas:

That was one of the key things that I pointed out to Pat Campbell and Pat Bernard and Guy Cook, that, you know, I can go get equipment anywhei'e, but getting the light people that have the knowledge and the professional influence to go out and make it successful is key, and I told [them] I did not want to move too far ahead of time and lose contact with Brian.

In the eaiiy part of 2007, Shoemaker told Norris that he would have to talk to Manning about any acquisition of Sonic.

Campbell testified that Bei'nard, senior executive vice president of Superior, was involved in planning acquisitions and mergers. According to Campbell, Norris told the officers at Superior that $3.6 million would be required for a West Texas expansion. Campbell also confirmed that Bernard would meet with them at the Drilling Technology Center in Houston. In 2006, Bernard was involved in discussions about acquiring Sonic or just expanding in West Texas.

Bill Mahler, executive vice president and genex-al manager of Wild Well, also testified. Mahler was in chai'ge of business development dui'ing the time of the discussions. He also did not know whether BTI was a corpoi-ation. He stated that Campbell was president of Wild Well and general manager of BTI and that Norris subsequently came in as general manager of BTI. Mahler acknowledged that he was aware that Norris or Campbell had asked Superior to approach Sonic about an acquisition.

There is an e-mail dated September 4, 2007, from Norris to Campbell and others where Norris indicated that he had to get Superior’s approval for an expenditure to fund the expansion into West Texas:

I have attached an 07/08 P & L as well as a brief timetable of projected events that we need to move forward with for W. Texas. At this time Brian Shoemaker is ready to pull the trigger to sever with SPS and come aboard. I told him to hold off until we had addressed the inventory capex we would be needing as well as a basic business plan. We have made contact with various vendors and gotten pricing as needed for AFE generation to purchase. [Shoemaker] is awaiting our call to move on his end.

This e-mail indicates that Superior’s $3.6 million funding was critical to the hiring of Shoemaker.

On September 5, 2007, Wild Well and BTI submitted their principal request for capital from Superior for the “West Texas Location Start-Up Inventory/Rental Assets.” It appears that Shoemaker was hired on September 12, 2007. Apparently, Superior and SESI approved the expansion funding some time between September 5 and 12, although their officers had discussed the amount with Norris at an earlier date. Based on the record, the trial court could have reasonably found that, without the funding, Shoemaker would not have been hired and would not have been accused of having breached his contract with and fiduciary duty to Sonic.

It was not necessary for Sonic to show that Superior and SESI controlled Wild Well and BTI. Our focus is on the role of Superior and SESI in the hiring of Shoemaker. Although Ballard’s telephone call to Manning by itself would not constitute a sufficient contact for jurisdiction by the trial court, it is one additional factor to be considered in the role of Superior and SESI in the hiring of Shoemaker and some of his team. The discussions in Houston involving Bernard and Cook of Superior (and SESI) and the $3.6 million funding are additional factors.

A purposeful availment analysis considers (1) only the conduct of the nonresident defendant; (2) whether the defendant’s contacts with the forum were purposeful, rather than random, fortuitous, or attenuated; and (3) whether the defendant sought a benefit, advantage, or profit by availing itself of the jurisdiction. Moki Mac, 221 S.W.3d at 575. Thus, we focus on the nature and quality of Superior’s and SESI’s contacts with Texas, not the number of contacts. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009). The nonresident’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980); BMC Software Belgium, 83 S.W.3d at 795.

Norris told Bernard and Cook that Shoemaker was a key person to expanding Superior’s operations through BTI in West Texas. Both Norris and Campbell testified that Bernard of Superior would meet with them at the Drilling Technology Center in Houston and that the discussions concerned whether to acquire Sonic or to have Superior fund an entity to expand in West Texas. Norris told the officers at Superior, who were employees of SESI, that $3.6 million would be required for the West Texas expansion. Mahler of Wild Well said that he was aware that Norris or Campbell had asked Superior to approach Sonic about being acquired.

Bernard and Cook of Superior and SESI were involved in the discussions at the Drilling Technology Center in Houston concerning how to expand their rental tool business in West Texas. They must have been aware that, by choosing the manager of their principal competitor, Shoemaker, in West Texas, to take away Sonic’s market share, they would risk litigation with Sonic. That litigation should have been expected when they funded Shoemaker with the $3.6 million to compete with his former company, Sonic. Innovative Therapies, 328 S.W.3d at 560; see Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 283-85 (Tex.App.-Houston [14th Dist.] 2009, no pet.); see also GJP, Inc. v. Ghosh, 251 S.W.3d 854, 880 (Tex.App.-Austin 2008, no pet.).

In an e-mail dated September 11, 2007, Campbell advised James Holleman, executive vice president of Superior, and Kenny Crockett, who worked for Holleman at Superior, that Shoemaker was already bringing in the business:

We have just hired Brian Shoemaker, and he is already bringing in some business ....
There is a possibility that the current owner of [Sonic] (privately held) will change his position about selling when he sees that the business will not succeed and grow without the very good team that Brian had assembled....
... [Sonic] has averaged over $800K per month for the last five months, $600K-$800K during the last half of 2006.

It appears that, in addition to Bernard and Cook, Holleman and Crockett had some involvement in the decision to target Shoemaker and his team and fund them to compete against Sonic in the rental tool business in West Texas. When a tortfeasor commits a tort in the forum state by directing its actions toward the forum state with full knowledge that injury will occur in the forum state, jurisdiction is appropriate. See Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 211 (5th Cir.1999); see Mem’l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650-52 (Tex.App.Houston [14th Dist.] 1992, no writ) (holding that a single phone call was sufficiently purposeful to support jurisdiction). The minimum-contacts analysis is focused on the quality and nature of the defendant’s contacts, rather than their number. Republic Drilling, 278 S.W.3d at 339.

Superior’s and SESI’s contacts with Texas demonstrate that they purposefully availed themselves of the privilege of conducting activities in Texas. There is legally and factually sufficient evidence to demonstrate that they purposefully “availed” themselves of the benefits of Texas by participating in the targeting and recruiting of Shoemaker and his team to build Superior’s (or an entity owned by Superi- or) market share in West Texas. The cause of action arose from those contacts. See Coleman, 83 S.W.3d at 806.

The Exercise of Jurisdiction Must Comport With the Notions of Fair Play and Substantial Justice

Having determined that Superior and SESI had minimum contacts with Texas sufficient to support general and specific jurisdiction, we now face the issue of whether subjecting them to the jurisdiction of Texas would offend traditional notions of fair play and substantial justice. Innovative Therapies, Inc., 328 S.W.3d at 559-60; Republic Drilling, 278 S.W.3d at 341.

To determine this issue, we consider (1) the burden on the defendants, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiffs interest in obtaining relief, (4) the interstate justice system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Asahi Metal Indus. Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). “Only in rare cases, however, will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.” Spir Star AG, 310 S.W.3d at 878.

The burden on Superior and SESI would be light. Campbell is an executive vice president of Superior and an employee of SESI. He resides in Houston and offices at 2202 Oil Center Court in Houston. An engineering and product management division of Superior is also located at 2202 Oil Center Court. From the record, it appears that officers of Superior and SESI routinely visit Houston and other parts of Texas to check on their subsidiary companies and divisions.

A Texas resident was recruited to join the Superior team. Sonic seeks relief for Shoemaker’s leaving with his knowledge of Sonic. The second two factors are met. From the interstate justice system’s viewpoint, Texas is the most efficient forum for resolving this controversy. Although Superior and SESI have their headquarters in Louisiana, nearly all the activities and events relating to this controversy occurred in Texas. Exercise of jurisdiction over Superior and SESI does not offend the notions of fair play and substantial justice. Superior and SESI’s issue on appeal is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . Campbell was also an agent of Superior for purposes of service. Tex. Bus. Org.Code Ann. § 5.255 (Vernon Pamph.2010).