Mastercraft Boat Company, LLC v. Rebecca Chambers

ACCEPTED
13-16-00074-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/26/2016 4:34:31 PM
Dorian E. Ramirez
CLERK

No. 13-16-00074-CV

IN THE THIRTEENTH COURT OF APPEALS
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI, TEXAS 4/26/2016 4:34:31 PM
DORIAN E. RAMIREZ
___________________________________________
Clerk

MASTERCRAFT BOAT COMPANY, LLC,
Appellant,
v.
REBECCA CHAMBERS
Appellee.
___________________________________________

Appealed from the County Court at Law No. 3
Of Nueces County, Texas

__________________________________________________________________

APPELLEE REBECCA CHAMBER’S RESPONSE BRIEF

----------------------------------------------------------------------------------------------------

Douglas A. Allison
Texas Bar No. 01083500
doug@dallisonlaw.com
Law Office of Douglas A. Allison
403 N. Tancahua
Corpus Christi, Texas 78401
Telephone: 361-888-6002
Facsimile: 361-888-6651
ATTORNEY FOR APPELLEE
REBECCA CHAMBERS

APPELLEE REBECCA CHAMBERS REQUESTS ORAL ARGUMENT

i
 No. 13-16-00074-CV

MasterCraft Boat Company, LLC

Appellant,

v.

Rebecca Chambers,

Appellee.

______________________________________________________________________________

IDENTITY OF PARTIES & COUNSEL
_____________________________________________________________________________________

Appellant MasterCraft Boat Company, LLC
Marc Evan Kutner, Esq.
Texas Bar No. 11770575
MKutner@leggefarrow.com
Michael J. Wray, Esq.
Texas Bar No. 24052191
MWray@leggefarrow.com
Legge, Farrow, Kimmitt, McGrath & Brown, LLP
5151 San Felipe, Suite 400
Houston, Texas 77056
Telephone: 713-917-0888
Facsimile: 713-953-9470

Appellee Rebecca Chambers
Douglas A. Allison
Texas Bar No. 01083500
doug@dallisonlaw.com
Law Office of Douglas A. Allison
403 N. Tancahua
Corpus Christi, Texas 78401
Telephone: 361-888-6002
Facsimile: 361-888-6651

ii
 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ............................................................. ii

INDEX OF AUTHORITIES ................................................................................. iv

STATEMENT OF THE CASE .............................................................................. v

STATEMENT ON ORAL ARGUMENT ............................................................ vi

ISSUES PRESENTED FOR REVIEW ............................................................... vii

Issue
 1:

  Whether
 MasterCraft
 Boat
 Company
 LLC
 (Appellant)
 did
 purposefully
 avail

itself
 of
 the
 privilege
 of
 conducting
 activities
 within
 the
 State
 of
 Texas
 to
 such

an
 extent
 so
 as
 to
 established
 minimum
 contacts
 sufficient
 to
 support
 the
 trial

court’s
 exercise
 of
 general
 jurisdiction
 over
 Appellant.
 ............................................
 vii

Issue
 2:

  Whether
 MasterCraft
 Boat
 Company
 LLC’s
 (Appellant’s)
 alleged
 liability
 in
 this

case
 arise
 out
 of
 or
 relates
 to
 Appellant’s
 purposeful
 activity
 in
 the
 State
 of

Texas
 so
 as
 to
 support
 the
 trial
 court’s
 exercise
 of
 specific
 jurisdiction
 over

Appellant.
 ...................................................................................................................................
 vii

Issue
 3:

  Whether
 the
 trial
 court’s
 exercise
 of
 jurisdiction
 over
 Appellant
 comports
 with

traditional
 notions
 of
 fair
 play
 and
 substantial
 justice.
 .............................................
 vii

Issue
 4:
  Whether
 the
 trial
 court
 erred
 in
 failing
 to
 sustain
 Appellant’s
 objections
 to

certain
 deposition
 testimony,
 and
 whether
 such
 refusal,
 if
 any,
 to
 grant

Appellant’s
 objections
 was
 harmful
 error
 (if
 any).
 ........................................................
 vii

STATEMENT OF FACTS ..................................................................................... 1

SUMMARY OF ARGUMENT ............................................................................ 16

ARGUMENT ......................................................................................................... 18

1.
  Plaintiff’s
 Pleadings
 Support
 this
 Court’s
 Exercise
 of
 Jurisdiction
 -­‐-­‐
 ...................................
 18

2.
  Legal
 Authority
 in
 Support
 of
 a
 Court’s
 Exercise
 of
 Jurisdiction
 -­‐-­‐
 .......................................
 19

3.
  This
 Court
 has
 Specific
 Jurisdiction
 over
 Appellant

 -­‐-­‐
 .............................................................
 23

4.
  This
 Court
 has
 General
 Jurisdiction
 over
 Appellant

 -­‐-­‐
 .............................................................
 24

THIS COURT’S EXERCISE OF JURISDICTION DOES NOT OFFEND
TRADITIONAL NOTIONS OF FAIR PLAY ................................................... 29

1.
  The
 burden
 upon
 Appellant

 -­‐-­‐
 ..........................................................................................................
 30

2.
  The
 interest
 of
 Texas
 in
 Adjudicating
 this
 Dispute
 in
 Texas
 -­‐-­‐
 ..............................................
 31

3.
  Plaintiff’s
 Interest
 in
 Obtaining
 Convenient
 /
 Effiective
 Relef
 -­‐-­‐
 ...........................................
 31

4.
  Interstate
 Judicial
 System’s
 Interest
 in
 Obtaining
 Efficient
 Resolution
 .............................
 32

5.
  Shared
 Interests
 of
 States
 to
 Further
 Social
 Policies
 -­‐-­‐
 ............................................................
 32

CONCLUSION ..................................................................................................... 33

CERTIFICATE OF SERVICE ........................................................................... 34

iii
 INDEX OF AUTHORITIES
Cases

American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.
2002), cert. denied, 537 U.S. 1191 (2003) ......................................... 18, 19, 21, 24

Asahi Metal industiral Company, Ltd. v. Superior Court of California, Solano
County, 480 U.S. 102, 113-115 (1987) .......................................................... 29, 30

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) ................ 20, 27, 29, 30

Frank A. Smith Sales, Inc., d/b/a Frank Smith Toyota v. Atlantic Aero, Inc., 31
S.W.3d 742, 746 (Tex. App. - - Corpus Christi 2000, no pet.)...................... 18, 19

Guardian Royal Exch. Assurance, LTD. v. English China Clays, 815 S.W.2d 223
(1991), 815 S.W.2d at 231 ................................................................................... 29

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, (2 L.Ed.2d 1283 (1958)). ... 21, 27

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1940) ......................... 20

Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)................. 21

M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n.1 (Tex.App. - - Corpus
Christi 1999, no pet) ............................................................................................ 18

McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965) .......................................... 18

Mi Gwang Contact Lens Co. v. Chapa, No. 13-13-00306-CV, 2015 WL 3637846
(Tex.App.—Corpus Christi June 11, 2015) .......................................................... vi

Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir. 1980)............................................. 22

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.
2009) .................................................................................................................... 22

Schlobohm v. Shapiro, 784 S.W.2d 355, 357 (Tex. 1990). .............................. 20, 27

World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980) .................................. 30

iv
 STATEMENT OF THE CASE

Appellee sued Appellant for strict product liability arising from the design,

manufacture, and marketing of a boat. Appellee was a passenger on the boat, she

fell overboard, and the unguarded propeller traumatically amputated her leg. (CR

1:10) Appellant filed a special appearance to contest the Court’s jurisdiction. (CR

1:43-45.) The Court denied Appellant’s special appearance by Order dated

January 28, 2016. (R 1:108.) This accelerated interlocutory appeal ensued.

v
 STATEMENT ON ORAL ARGUMENT

There is not a need for oral argument because the issues presented have been
authoritatively decided. See Tex. R. App. P. 39.1 (b). The Thirteenth Court of
Appeals has issued an opinion in Mi Gwang Contact Lens Co. v. Chapa, No. 13-
13-00306-CV, 2015 WL 3637846 (Tex.App.—Corpus Christi June 11, 2015), that
is on point.

vi
 ISSUES PRESENTED FOR REVIEW

Issue 1: Whether MasterCraft Boat Company LLC (Appellant) did
purposefully avail itself of the privilege of conducting activities
within the State of Texas to such an extent so as to established
minimum contacts sufficient to support the trial court’s exercise of
general jurisdiction over Appellant.

Issue 2: Whether MasterCraft Boat Company LLC’s (Appellant’s) alleged
liability in this case arise out of or relates to Appellant’s purposeful
activity in the State of Texas so as to support the trial court’s exercise
of specific jurisdiction over Appellant.

Issue 3: Whether the trial court’s exercise of jurisdiction over Appellant
comports with traditional notions of fair play and substantial justice.

Issue 4: Whether the trial court erred in failing to sustain Appellant’s
objections to certain deposition testimony, and whether such refusal,
if any, to grant Appellant’s objections was harmful error (if any).

vii
 STATEMENT OF FACTS

On August 24, 2014, Rebecca Chambers was one of eight (8) passengers,

who were on-board the Appellant MasterCraft Boat Company LLC’s (“Appellant”)

boat owned by John “Dos” Dietz (“Defendant Dietz”). Defendant Dietz was

captaining / operating the Appellant boat in Nueces County, Texas. Rebecca

Chambers was sitting on the bow of the Appellant’s boat while it was underway,

and she did suddenly and unexpectedly (from her perspective) get sucked under

and run over by the Appellant’s boat. Rebecca Chambers was then drawn into the

boat’s unguarded propeller --- and she suffered severe lacerations of her lower leg.

Rebecca Chambers floated to the water’s surface and found herself in a large pool

of her own blood. Others screamed for “Dos” Dietz to turn the boat around to

render aid, and “Dos” Dietz complied. Rebecca Chambers was floundering in her

effort to save herself, and she was then aided by others as the boat came back for

her. During the rescue effort, it was determined that Ms. Chambers’ lower leg had

been completely severed from her body -- and it could not be found. Rebecca was

rushed to the hospital for appropriate medical care and treatments.

Rebecca Chambers filed this legal action on or about December 8, 2014,

against Defendant Dietz and Appellant. In response to Rebecca Chambers‘ filing

of the action, Defendant Dietz filed a general denial. In response to Rebecca

1
Chambers‘ filing of the action, Appellant filed a special appearance, motion to

transfer venue, motion to dismiss on grounds of forum non conveniens, special

exceptions, general denial, pleadings setting forth affirmative defenses, and other

related / amended / supplemental pleadings.

Rebecca Chambers’ current pleading on file is Plaintiff’s First Amended

Original Petition (and such pleading was the live pleading at the point in time

when the trial court considered Appellant’s special appearance). By this pleading,

Rebecca Chambers has made allegations supporting this Court’s general

jurisdiction and specific jurisdiction over the parties in this lawsuit (including

Appellant) and the subject matter of this lawsuit. With regard to Appellant,

Rebecca Chambers has pleaded that Appellant is subject to Texas’ courts’

jurisdiction in this case because:

1. Appellant’s boat involved in this lawsuit is in the State of Texas because

of Appellant’s purposeful, multi-million dollar internet promotional

campaign directed at the State of Texas (which campaign directly caused

Defendant Dietz to purchase the boat made the subject of this lawsuit);

and

2. Appellant’s many and other continuous and systematic contacts with the

State of Texas; to wit: systematically and continuously sending

2
employees and managers to the State of Texas; systematically and

continuously training service personnel to provide warranty work in the

State of Texas (and providing such warranty work in the State of Texas);

systematically and continuously providing recall services within the State

of Texas; systematically and continuously training sales personnel to sell

its boats in Texas; systematically and continuously sending its employees

to participate in promotional events in the State of Texas; systematically

and continuously signing contracts in Texas and/or with Texas

individuals and/or with Texas companies; systematically and

continuously signing contracts for services performable in Texas;

systematically and continuously advertising in Texas; systematically and

continuously conducting customer satisfaction surveys in Texas;

systematically and continuously resolving disputes in Texas (whether by

Alternate Dispute Resolution (ADR) or other); systematically and

continuously reimbursing others for sales work / promotions in Texas;

systematically and continuously partnering with others (individuals and

companies) in Texas; and systematically and continuously doing business

in the State of Texas for many years (including its payment of franchise

taxes to the State of Texas to allow Appellant to do its business in the

State of Texas (which has been quite profitable for Appellant)).

3
 The facts of the case do clearly demonstrate that Appellant’s relationship

with the State of Texas. Key facts are as follows:

1. Appellant -- and the time of the incident and for many years --

contracted with four (4) companies to serve as Appellant’s Texas

dealerships in the State of Texas;1

2. Appellant’s contracts with its authorized Texas dealers were (for the

pertinent time period) contracts with Texas companies;2

3. Appellant’s contracts with its authorized Texas dealers were (for the

pertinent time period) contracts performable in Texas;3

4. Appellant (‘regularly and frequently,’ and for the pertinent time

period) obligated itself -- and continues to obligate itself -- by way of

its warranty contracts with its Texas customers (Texas residents) to

provide warranty services (repairs) in the State of Texas, to pay for

warranty services in the State of Texas, and to deliver warranty

contracts to its Texas customers in the State of Texas;4

1
Appellant ’s authorized dealers in the State of Texas (for the pertinent time period) were: (1) Texas
MasterCraft Ltd.; (2) Dockside Marine LLC; (3) Boat Town, Inc.; and (4) Texas Ski Ranch. See
authorized dealership contracts (Filed under seal in the trial court); see also deposition testimony of Tim
Oxley, (CR 1:271-275)
2
See Texas Secretary of State documents (CR 1:446-456)
3
See deposition testimony of Tim Oxley, (CR 1:314)
4
See deposition testimony of Tim Oxley, (CR 1:309-315) (“Q. And so the [warranty] work is performable
in Texas, if it’s -- if the boat is taken to a Texas dealership? A. Correct . . . Q. . . . the work is going to
be performed in Texas? A. Yes. . . . Q. And the payment is going to go to the company in Texas? A.
We reimburse the dealer in Texas. . . . Q. So that warranty contract is delivered actually [to the boat
owner] in Texas? A. Correct). See also deposition testimony of Tim Oxley, (CR 1:356)

4
 5. Appellant (for the pertinent time period) has paid substantial sums to

honor warranty claims made in Texas (2011: $163,000.00; 2012:

$203,000.00; 2013: $191,000.00; 2014: $194,000.00; and 2015:

$165,000.00); 5

6. Appellant (continuously and systematically, and for the pertinent time

period) performs its recall obligations in the State of Texas, and pays

for its recall obligations in the State of Texas; 6

7. Appellant (for the pertinent time period) contracted in the State of

Texas to be listed as an additional insured on Completed Products

coverage’s negotiated and paid for in Texas -- and applicable to

product liability cases filed in the State of Texas (thus, these are

contracts performable in Texas for the benefit of Appellant);7

8. Appellant (though its vendor, and for the pertinent time period in

question) developed a customer service index (“CSI”) by surveying its

Texas customers to determine Texas customers’ satisfaction with its

(Appellant’s) product;8

9. Appellant’s contracts (for the pertinent time period in question)

obligate Appellant to come into Texas and pay claims for its

5
See deposition testimony of Tim Oxley, (CR 1:355)
6
See deposition testimony of Tim Oxley, (CR 1:316-317)
7
See deposition testimony of Tim Oxley, (CR 1:325-330)
8
See deposition testimony of Tim Oxley, (CR 1:318-322)

5
 authorized Texas dealerships (“indemnity”) in the event that a product

defect exists with the MasterCraft product (this contract term is

performable in Texas);9

10. Appellant has negotiated and resolved disputes (including Alternative

Dispute Resolution) in the State of Texas;10

11. Appellant has agreed to the application of Texas law to interpretation

of provisions of their contracts with Appellant’s authorized Texas

dealerships;11

12. Appellant ’s contracts with its authorized Texas dealers (for the

pertinent time period) gave Appellant sole discretion to define the

geographic area of operations for each Texas dealership;12

13. Appellant’s contracts with its authorized Texas dealers (for the

pertinent time period) gave Appellant one hundred percent (100%)

control over incentive programs offered by its Texas dealerships;13

14. Appellant’s contracts with its authorized Texas dealers (for the

pertinent time period) gave Appellant the power to set sales quotas for

Appellant boat sales in Texas;14

9
See deposition testimony of Tim Oxley, (CR 1:331)
10
See deposition testimony of Tim Oxley, (CR 1:336-337)
11
See deposition testimony of Tim Oxley, (CR 1:339)
12
See deposition testimony of Tim Oxley, (CR 1:277-278)
13
See deposition testimony of Tim Oxley, (CR 1:279)
14
See deposition testimony of Tim Oxley, (CR 1:281-282)

6
 15. Appellant’s employee -- its regional sales and marketing manager --

made (for the pertinent time period) ten (10) to twelve (12) trips per

year to the State of Texas for the purpose of meeting with and

supporting Appellant’s authorized Texas dealerships;15

16. Appellant’s “local [Texas] rep” (a term used by Tim Oxley to describe

Appellant’s regional sales and marketing manager) travels to the State

of Texas regularly and systematically to:

(a) increase Appellant’s market share;

(b) counsel with each “local [Texas] dealer”;

(c) provide each authorized Texas dealership with product training

(training to help Texas sales representatives distinguish and

promote Appellant’s boats, and related training about how to close

a deal);

(d) encourage local (Texas) marketing events (such events typically

including Appellant’s direct, in-person participation, and such

events wholly controlled by Appellant); and

(e) provide stocking and merchandizing recommendations for each

authorized Texas dealership. 16

15
See deposition testimony of Tim Oxley, (CR 1:291, 1:357)
16
See deposition testimony of Tim Oxley, (CR 1:288-291, 1:294-299)

7
 17. Appellant routinely and systematically reimburses its “local [Texas]

rep” (its regional sales and marketing manager), and others, for hotel

stays in Texas, meals purchased in Texas for its employees, meals

purchased in Texas for its customers / authorized Texas dealerships,

rent-a-cars, cellular service bills, and internet service bills;17

18. In addition to Appellant’s regional sales and marketing manager’s

trips to the State of Texas (10-12 / year), Appellant’s vice-president

for global sales and marketing travels four (4) to six (6) times per year

to the State of Texas; and Appellant’s president and CEO travels one

(1) to (2) times per year to the State of Texas -- and all to promote

sales and marketing in the State of Texas; 18

19. Appellant controls its authorized Texas dealership’s inventory (the

Appellant’s boats on the sales floor, and in-stock MasterCraft parts

and supplies);19

20. Appellant controls the days and hours of operation (for the pertinent

time period) for its authorized Texas dealerships;20

17
See deposition testimony of Tim Oxley, (CR 1:290-291)
18
See deposition testimony of Tim Oxley, (CR 1:357-358)
19
See deposition testimony of Tim Oxley, (CR 1: 302-303)
20
See deposition testimony of Tim Oxley, (CR 1:304)

8
 21. Appellant provided and/or approved (for the pertinent time period) all

of the promotional and/or advertising materials to use by its

authorized Texas dealerships -- to be displayed in the State of Texas;21

22. Appellant (for the pertinent time period) markets directly into Texas

through the internet; 22

23. Appellant (for the pertinent time period) markets directly into Texas

through billboards, radio, and television through its authorized Texas

dealerships; 23

24. Appellant advertises (for the pertinent time period) in trade magazines

that are regionally targeted to the Texas markets; 24

25. Appellant paid $1,037,500.00 to “Live Nation Motor Sports, Inc.” --

a Texas corporation -- as a promotional / advertising fee for events in

Texas25 (2008, 2009, and 2010); and agreed in its contract with Live

Nation Motor Sports, Inc., that the agreement would “be governed by

and construed according to the laws of the State of Texas”; 26

21
See deposition testimony of Tim Oxley, (CR 1: 305-306)
22
See deposition testimony of Tim Oxley, (CR 1: 339)
23
See deposition testimony of Tim Oxley, (CR 1:340)
24
See deposition testimony of Tim Oxley, (CR 1: 360-361)
25
The sponsored events occurred in Texas, and other states. Appellant -- by their promotional fee -- was
entitled to display its logo on banners, to 15 second public addresses, to two (2) scoreboard mentions, to
two (2) jumbotron mentions, to participation in the pit party, to distribute hand-outs, to spots on CBS’s
broadcasts, to a full page color advertisement in the event program, to 10 VIP, passes, to 20
complimentary tickets, and more.
26
See deposition testimony of Tim Oxley, (CR 1:364-367) see also Oxley, (CR 1: 368)(agreeing to the
“benefits and protections” of Texas law).

9
 26. Appellant (for the pertinent time period) markets directly, and in-

person (through its employees and contract employees), in the State of

Texas at sponsored boat shows, clinics, and demonstration days and

events;27

27. Appellant pays half (50%) of the cost of promoting boat shows and

events in the State of Texas (as a “co-op” with its authorized Texas

dealership);28

28. Appellant pays millions of dollars each year (for the pertinent time

period) towards advertising (2011: $4.4 million dollars; 2012: $4.4

million dollars; 2013: $3.4 million dollars; 2014: $4.2 million

dollars) -- from which large sums are directed at marketing in the

State of Texas (since Texas is Appellant ’s largest market); 29

29. Appellant is advertising in the State of Texas every day for the past

five (5) years; 30

30. Appellant sells many boats each year into the State of Texas -- to its

authorized Texas dealerships who are Texas companies (2011: 192

MasterCraft boats sold to Texans; 2012: 151 MasterCraft boats sold

to Texans; 2013: 182 MasterCraft boats sold to Texans; 2014: 136

27
See deposition testimony of Tim Oxley, (CR 1:340-342, 1:351)
28
See deposition testimony of Tim Oxley, (CR 1:342-344)
29
See deposition testimony of Tim Oxley, (CR 1: 352) see also deposition of Jay Povlin, (CR 1:218-220)
30
See deposition testimony of Tim Oxley, (CR 1: 353-354)

10
 MasterCraft boats sold to Texans; and 2015: 183 MasterCraft boats

sold to Texans); 31 and

31. Appellant regards its cooperative efforts with its authorized Texas

dealerships as a “partnership” (Mr. Oxley volunteered that Appellant

does “characterize that [Texas dealership relationship] as a

partnership”);32

The facts speak for themselves. The Appellant’s documents and sworn testimony

of their employees make clear that Appellant has a significant relationship with

the State of Texas.

With these factual discoveries now made of record, some candid testimony makes

clear Mr. Oxley’s view of his company’s (Appellant’s) relationship to the State of

Texas. Mr. Oxley is a corporate official employed by Appellant, and he did testify,

as follows:

Q. MasterCraft knows they have a lot of MasterCraft boats in

Texas, and they’re very purposeful in making sure that they’re taking

care of those customers and honoring those warranty claims?

A. Yes, I agree to that.33

*****

31
See deposition testimony of Tim Oxley, (CR 1:359)
32
See deposition testimony of Tim Oxley, (CR 1: 345-346, 1:349-350)
33
See deposition testimony of Tim Oxley, (CR 1: 357)

11
 Q. By MasterCraft’s advertising, I think you would agree that

MasterCraft’s contacts with the State of Texas are continuous?

A. Yes. 34

****

Q. And systematic?

A. Yes, using your definition of advertising where we display

brochures.

Q. And considering warranty practices of MasterCraft, those

contacts with the State of Texas are also continuous? I don’t mean

every day, but they’re very frequent, and ongoing?

A. I agree.

Q. And, again, they’re systematic? The warranty contracts?

A. Yes.35

* ****

Q. Is it fair to say that MasterCraft, certainly, has been -- as long as

you’ve been with the company -- doing business in Texas.

A. Yes.

Q. On a longstanding basis?

A. Yes.

34
See deposition testimony of Tim Oxley, (CR 1:370)
35
See deposition testimony of Tim Oxley, (CR 1:371-372)

12
 Q. As a part of this longstanding business of MasterCraft in Texas,

it’s included marketing, correct?

A. Yes.

Q. Shipping their products to Texas, correct?

A. Yes.

Q. Performing services, including warranty services, in Texas?

A. Yes.

Q. And maintained authorized dealerships in Texas.

A. Yes.

Q. I mean, MasterCraft definitely and very purposefully wants the

benefits of doing business in Texas by selling their bots there, right?

A. Yes.

Q. MasterCraft definitely, intentionally, and purposefully wants to

take advantage of the Texas economy and whatever monies there are

available for luxury items, such as the ski, surf, and wakeboard boats?

A. Yes.36

****

36
See deposition testimony of Tim Oxley, (CR 1:347-376)

13
 Q. And is it true that MasterCraft -- we’ve already talked about

how they have a very specific market territory for each of their

authorized dealers in Texas, right?

A. Yes.

Q. And I think that those are placed strategically so they’re not

overlapping with each other; fair to say?

A. Yes.37

** ***

Q. Those are very strategic decisions that MasterCraft has made in

terms of how they want and where they want their products presented

in Texas?

A. Yes.38

** ***

Q. So these contacts that we’ve talked about where MasterCraft is

doing the advertising and the warranty claims and the different things

that MasterCraft does throughout Texas, those are pervasive contact

throughout the parts of the state that are your market?

A. Yes. 39

* ****
37
See deposition testimony of Tim Oxley, (CR 1:376-377)
38
See deposition testimony of Tim Oxley, (CR 1: 377-378)
39
See deposition testimony of Tim Oxley, (CR 1:378)

14
 Q. Do you think that when you look at the things that MasterCraft

is doing directly in Texas, sometimes its own materials, sometimes

through its dealerships, do you think that Mastercraft’s contacts with

the state of Texas are substantial?

A. Yes.

Q. And purposeful for the purpose of helping sell MasterCraft

products in Texas?

A. Yes. . . . .

Q. I mean, MasterCraft definitely has a very specific intent to

serve the Texas markets and sell their ski, wakeboard, and surf boats

in Texas.

A. Yes. 40

Again, this evidence speaks for itself. This evidence is not contradicted by any of

the documentary evidence, but rather supported by the documentary evidence.

Additional evidence was presented to the trial court. Specifically, the

evidence proves that Appellant even pays franchise taxes to the State of Texas. In

2015, Appellant paid $28,843.60 in franchise taxes to the State of Texas for the

privilege of its conducting business in the State of Texas.41 Apparently, Appellant

has been following this appropriate practice for a number of years (i.e., paying

40
See deposition testimony of Tim Oxley, (CR 1:378-379)
41
See Texas Franchise Tax Payment Forms produced by Appellant , (CR 1:440-445)

15
taxes to the State of Texas for the purpose of allowing Appellant to do business in

the State of Texas).

Finally, the record also contains evidence of Defendant “Dos” Dietz’s specific

reliance upon Appellant’s (MasterCraft’s) Texas contacts for the purchase of the

MasterCraft boat made the subject of the litigation. An affidavit42 signed by

Defendant Dietz was a part of the evidence considered by the trial court, and such

affidavit makes clear that Defendant Dietz purchased the boat made the subject of

this lawsuit as a direct result of Defendant Dietz’s review and consideration of

Appellant ’s promotional materials -- provided to Defendant Dietz via internet

and/or boat show promotions. Defendant Dietz’s affidavit makes clear that his

decision to purchase the MasterCraft boat made the subject of the litigation was

“substantially driven by information that [he] obtained from the MasterCraft Boat

Company’s promotional website (while [he] was in Texas).

SUMMARY OF ARGUMENT

In this case, this trial court properly exercised its powers of both specific

jurisdiction -- and general jurisdiction -- over Appellant . The Appellant has been

doing business in Texas for many, many years. Appellant concedes the very

threshold question of ‘doing business in Texas’ by its payment of franchise taxes to

the State of Texas, and it cannot now be heard to complain of coming to Texas.
42
(CR 1:479-480)

16
Appellant sells its boats directly to Texas customers (including its authorized

Texas dealerships) by the hundreds each year, advertises in Texas, honors warranty

claims in Texas, honors recall claims in Texas, contracts in Texas, agrees to the

application of Texas law when it is to Appellant ’s benefit, trains sales persons to

sell its boats in Texas, trains repair persons to make repairs in Texas, and -- for

lack of a better phrase -- does everything it can in Texas to make money from

Texans.

Moreover, the Appellant’s contacts with the State of Texas directly led to

Defendant Dietz’s decision to purchase a MasterCraft boat for use in Texas. The

affidavit of Defendant Dietz makes clear that his decision to purchase the

MasterCraft boat was “substantially driven by information that [he] obtained from

the MasterCraft Boat Company’s promotional website (while [he] was in Texas).

the affidavit of Defendant Dietz states that “the actual reason that I purchased my

MasterCraft boat was because of my internet browsing on the MasterCraft Boat

Company’s promotional website that was accomplished while I wa in the State of

Texas -- I just happened to thereafter locate my boat in the State of Florida.” The

trial court’s exercise of specific jurisdiction is also supported.

Appellant’s contacts with Texas also give rise to the trial court’s exercise of

general and specific jurisdiction over this Appellant. Plaintiff has properly made

those allegations that triggered the trial court’s exercise of jurisdiction over

17
Appellant. As such, Texas law shifts the burden of proof to Appellant to negate all

potential bases for a Texas’ court’s exercise of its jurisdiction. Appellant

completely failed to carry its burden to negate all potential bases for the trial

court’s exercise of jurisdiction, and thus the trial court made the proper ruling. The

trial court’s ruling should now be upheld on appeal.

ARGUMENT

1. Plaintiff’s Pleadings Support this Court’s Exercise of Jurisdiction --
Texas jurisprudence is quite clear that “[t]he plaintiff bears the initial burden

of pleading allegations sufficient to bring a nonresident defendant within the

provisions of the long-arm statute.”43 No Texas Supreme Court ruling has directly

decided the question of whether an appellate court should only consider the

plaintiff’s petition or also fully consider “extended . . . allegations in the petition”

(such as the plaintiff’s response to special appearance and/or supplements to

pleadings). However, the Texas Court of Appeals (Thirteenth District of Texas),

as a matter of actual practice, has historically considered all pleadings on file prior

to the hearing on special appearance (including the plaintiff’s pleadings responsive

to the defendant’s special appearance). “The meaning of the term “pleadings”

must be limited at least so as to exclude matters not filed prior to the special
43
American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002), cert.
denied, 537 U.S. 1191 (2003); see also Frank A. Smith Sales, Inc., d/b/a Frank Smith Toyota v.
Atlantic Aero, Inc., 31 S.W.3d 742, 746 (Tex. App. - - Corpus Christi 2000, no pet.); McKanna
v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403,
408 n.1 (Tex.App. - - Corpus Christi 1999, no pet).

18
appearance hearing.”44 A plaintiff’s pleading must set forth allegations sufficient

to support a trial court’s exercise of jurisdiction, and an appellate court properly

considers all of the plaintiff’s pleadings filed prior to the hearing on the

defendant’s motion.45 In this lawsuit, Appellant does not seem to complain about

the sufficiency of Plaintiff’s pleadings. To the extent that any such complaint may

be alleged by Appellant , Plaintiff respectfully suggests that Plaintiff’s pleadings

are more than adequate to support this Court’s exercise of jurisdiction over

Appellant .

2. Legal Authority in Support of a Court’s Exercise of Jurisdiction --
Of course, there is a wealth of judicial precedent to aid this Court in

consideration of the present issues. In American Type Culture Collection, Inc. v.

Marshall Coleman,46 the Texas Supreme Court provides a keen summary of some

of the threshold issues. The Texas Supreme Court is certainly capable of speaking

for itself, and the Court’s opinion provides guidance.

“Texas courts may assert personal jurisdiction over a
nonresident defendant only if the Texas long-arm statute
authorizes jurisdiction and the exercise of jurisdiction is
consistent with federal and state due process standards.”
Guardian Royal Exchange Assurance, Ltd. v. English China
Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). The Texas
44
Smith Toyota, at p. 746. The Thirteenth Court of Appeals (Texas) considered all pleadings
filed prior to the time of the hearing on special appearance.
45
The courts favor contemplation of all of the plaintiff’s pleadings (so long as the pleadings are
filed prior to the hearing on the defendant’s special appearance). See Smith Toyota, at p. 746.
46
83 S.W.3d 801 (Tex. 2002), cert. denied, 537 U.S. 1191 (2003).

19
long-arm statute reaches “as far as the federal constitutional
requirements of due process will allow.” Id. Thus, the Texas
long-arm statute requirements are satisfied if exercising
jurisdiction comports with federal due process limitations. Id.

“Under the Due Process Clause of the Fourteenth Amendment,
jurisdiction is proper if a nonresident defendant established
“minimum contacts” with Texas and maintenance of the suit
does not offend “traditional notions of fair play and substantial
justice.” International Shoe Co. v. Washington, 326 U.S. 310,
316 (1940). The purpose of the minimum-contacts analysis is
to protect the defendant from being haled into court when its
relationship with Texas is too attenuated to support
jurisdiction. Schlobohm v. Shapiro, 784 S.W.2d 355, 357
(Tex. 1990). Accordingly, we focus upon the defendant’s
activities and expectations in deciding whether it is proper to
call it before a Texas court. Id.”

“The minimum-contacts analysis requires that a defendant
“purposefully avail” itself of the privilege of conducting
activities within Texas, thus invoking the benefits and
protections of our laws. Burger King Corp. v.Rudzewicz, 471
U.S. 462, 475 (1985). The defendant’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 (1980). . . .
It is the quality and nature of the defendant’s contacts, rather
than their number, that is important to the minimum-contacts
analysis. Id. at 230 n. 11.”

“A defendant’s contacts with a forum can give rise to either
specific or general jurisdiction. For a court to exercise specific
jurisdiction over a nonresident defendant, two requirements
must be met: (1) the defendant’s contacts with the forum must
be purposeful, and (2) the cause of action must arise from or
relate to those contacts. Id. at 227. General jurisdiction . . .,
on the other hand, allows a forum to exercise jurisdiction over
a defendant even if the cause of action did not arise from or
relate to a defendant’s contacts with the forum. Id. at 228.

20
 General jurisdiction is present when a defendant’s contacts
with a forum are “continuous and systematic,” a more
demanding minimum-contacts analysis than specific
jurisdiction. Id. Coleman, at pp. 803-805.

There is no reason for the undersigned to speak on those thresholds and standards

where Texas’ high court has already spoken so clearly. If a defendant purposely

avails itself of benefits of a forum, it only makes sense that such defendant should

be amenable to the process of that forum. The minimum contacts analysis is less

strict when facts support a trial court’s exercise of specific jurisdiction (as

compared to a ‘general jurisdiction’ analysis). In the present case, an application

of the facts (evidence) to the law demonstrates that this Court has both specific and

general jurisdiction over Appellant .

Additional case law provides further guidance:

“When a corporation “purposefully avails itself of the privilege
of conducting activities within the forum State,” Hanson v.
Denckla, 357 U.S. [235] at 254, 78 S.Ct. [1228] at 1240 [2
L.Ed.2d 1283 (1958)], it has clear notice that it is subject to
suit there, and can act to alleviate the risk of burdensome
litigation by procuring insurance, passing the expected costs on
to customers, or, if the risks are too great, severing its
connection with the State. Hence if the sale of a product of a
manufacturer or distributor such as Audi or Volkswagen is not
simply an isolated occurrence, but arises from the efforts of the
manufacturer or distributor to serve directly or indirectly, the
market for its product in other States, it is not unreasonable to
subject it to suit in one of those States if its allegedly defective
merchandise has been the source of injury to its owner or to
others.” Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199,
203 (Tex. 1985).

21
 “. . . a defendant has “purposefully availed itself of the
privilege of conducting activities” in the forum state if the non-
resident defendant sells its product to an independent
distributor and “there is a reasonable expectation that the
product will enter the forum state.” Oswalt v. Scripto, Inc.,
616 F.2d 191 (5th Cir. 1980).

The Texas Supreme Court and United States Fifth Circuit opinions fall in line with

each other (and further fall in line with the United States Supreme Court opinions

relating to a court’s exercise of jurisdiction). The thresholds / parameters for this

Court’s exercise of jurisdiction are quite clear.

With definitive law and powerful evidence, fewer words may be exchanged in

argument. On the other hand, the undersigned is professionally obligated to make

argument on behalf of his client. As stated in Appellant ’s brief:

“The plaintiff has the initial burden to “plead sufficient
allegations to confer jurisdiction.” Id. (citing American Type
Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807
(Tex.2002)). Once that burden is met, the defendant seeking to
avoid the court’s jurisdiction takes on the burden to negate “all
potential bases for jurisdiction pled by the plaintiff.” Id.47

Plaintiff has properly pleaded facts in support of this Court’s exercise of

jurisdiction over Appellant . As such, it is now Appellant ’s burden to negate all

possible bases for this Court’s exercise of jurisdiction. Appellant -- for the

reasons set forth herein -- cannot negate all possible bases for this Court’s exercise

47
Appellant ’s pleading is referencing Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333,
337 (Tex. 2009)(citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002).

22
of jurisdiction. To the contrary, all of the law and all of the facts bode in favor of

this Court’s exercise of jurisdiction over Appellant .

3. This Court has Specific Jurisdiction over Appellant --
In Coleman, the high Court has made clear that for a court to exercise specific

jurisdiction over a non-resident defendant (such as Appellant ), the claimant must

present evidence that:

“(1) the defendant’s contacts with the forum must be purposeful, and
(2) the cause of action must arise from or relate to those contacts.”

In this case, Appellant has a huge number of high quality purposeful contacts with

the State of Texas. Mr. Oxley, Chief Financial Officer, Secretary, and Treasurer

for Appellant since 2012, has testified that these contacts are “purposeful” (and

have been purposeful during his eight (8) year tenure with the company). Such

contacts with the State of Texas include, but are not limited to, boat shows in the

State of Texas and internet promotions in contemplation of Appellant ’s clear

desire to sell boats to Texans (one of its largest markets in the United States).48

Defendant Dietz, on information and belief, purchased his MasterCraft boat

because of Appellant ’s purposeful contacts (internet and/or boat show

promotions) with the State of Texas (and its customers such as Defendant Dietz).

Appellant ’s annual multi-million dollar advertising investment worked.

Appellant ’s efforts caused its product (its boat) to be purchased, and brought to the

48
See deposition of Jay Povlin, (CR 1:218-220)

23
State of Texas -- but for which this incident made the subject of this lawsuit would

not have occurred. Clearly, the cause of action filed on behalf of Plaintiff ‘relates

to Appellant ’s contacts’ with the State of Texas.

Judicial authority supports this Court’s exercise of specific jurisdiction over

Appellant . The Appellant has many purposeful contacts with the State of Texas

(as noted herein). These contacts with the State of Texas were (and continue to be)

purposeful. Some of these contacts include boat shows and internet promotional

materials -- and these specific efforts by Appellant caused the purchase of the boat

made the subject of this lawsuit (on information and belief). Appellant ’s

purposeful contacts with the State of Texas “relate” to Plaintiff’s cause of action.

Appellant has certainly not carried its burden to negate this Court’s exercise of

jurisdiction. Thus, this Court is must properly exercise its power and authority

over the parties made the subject of this lawsuit (including Appellant ).

4. This Court has General Jurisdiction over Appellant --
In this case, this Court should also exercise its powers of general jurisdiction

over Appellant . General jurisdiction is present when a defendant’s contacts with a

forum are “continuous and systematic.”49 In this case, Appellant ’s contacts with

the State of Texas are continuous and systematic. By way of example, but without

49
See Coleman, at pp. 803-805.

24
limitation, Appellant very deliberately works and invests for its company’s sales

and success in Texas markets. Appellant :

1. purposefully contracts with Texas companies to be Appellant ’s authorized

dealerships in Texas;

2. purposefully enters into these authorized dealership contracts with Texas

companies, performable in Texas, which are expressly (by agreement with

Appellant ) governed by Texas law;

3. purposefully enters into other promotional contracts with Texas promotional

companies that are performable in Texas;

4. purposefully contracts with its Texas customers (Texas MasterCraft boat

owners) to provide warranty services (all these contracts performable in

Texas);

5. purposefully agrees to perform recall services with its Texas customers (Texas

MasterCraft boat owners) -- such recall services performable in Texas;

6. purposefully pays money to the State of Texas (its franchise tax payments) for

the privilege of doing its business in the State of Texas;

7. purposefully spends millions of dollars to advertise and promote, including a

focus on Texas with some of its selection of trade magazines, boat shows,

Texas events, and more (especially in light of the fact that Texas is Appellant

’s largest market (or one of them)) to sell boats to Texans;

25
8. contracts with Texas companies (its authorized dealerships) to be listed as a

named insured on insurance contracts performable in Texas (for claims filed

in Texas);

9. pays for customer satisfaction surveys of its Texas customers;

10. indemnifies its authorized Texas dealerships in Texas;

11. negotiates and resolves claims / disputes, in Texas, with its authorized Texas

dealerships;

12. strategically allocates its Texas markets to specific Texas companies for the

sale of MasterCraft boats in Texas;

13. controls 100% of all advertising content displayed for Appellant in Texas;

14. sends its regional sales and marketing manager to Texas approximately ten

(10) to twelve (12) times per year to promote sales in Texas;

15. trains sales persons to sale its boats in Texas;

16. trains repair persons to make repairs of its boats in Texas;

17. systematically reimburses its employees for sales related activities in Texas

(hotel costs, rent-a-car costs, dining costs, etc.);

18. controls its authorized Texas dealerships’ inventory on the floor, advertising,

days and hours of operation, and more;

26
19. markets in Texas by way of internet, boat shows, events, billboards, radio, and

published advertising materials (some of which is directly delivered, and some

of which flows through the authorized Texas dealerships);

20. and more (see details of evidence listed above).

“The purpose of the minimum-contacts analysis is to protect the defendant from

being haled into court when its relationship with Texas is too attenuated to support

jurisdiction.” Schlobohm v. Shapiro, 784 S.W.2d 355, 357 (Tex. 1990). Appellant

’s relationship with the State of Texas cannot be said to be “too attenuated to

support jurisdiction.” “The minimum-contacts analysis requires that a defendant

“purposefully avail” itself of the privilege of conducting activities within Texas,

thus invoking the benefits and protections of our laws.” Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475 (1985). The Appellant has “purposefully avail[ed]”

itself of the privilege of conducting business in Texas -- and has, by its many

contracts with Texas companies, invoked the benefits and protections of Texas

laws. “When a corporation “purposefully avails itself of the privilege of

conducting activities within the forum State,” Hanson v. Denckla, 357 U.S. [235]

at 254, 78 S.Ct. [1228] at 1240 [2 L.Ed.2d 1283 (1958)], it has clear notice that it is

subject to suit . . . .” In this case, Appellant has been doing business in the State of

Texas for years, and is on clear notice that it is subject to the laws of the State of

Texas. , and can act to alleviate

27
 “Hence if the sale of a product of a manufacturer or distributor
such as Audi or Volkswagen is not simply an isolated
occurrence, but arises from the efforts of the manufacturer or
distributor to serve directly or indirectly, the market for its
product in other States, it is not unreasonable to subject it to suit
in one of those States if its allegedly defective merchandise has
been the source of injury to its owner or to others.” Kawasaki
Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985).

“. . . a defendant has “purposefully availed itself of the privilege
of conducting activities” in the forum state if the non-resident
defendant sells its product to an independent distributor and
“there is a reasonableexpectation that the product will enter the
forum state.” Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.
1980).

In this case, Appellant ’s sale of boats into Texas is “not simply an isolated

occurrence, but arises from [MasterCraft’s] efforts . . . to serve directly or

indirectly, the market for its product . . . .” As such, Appellant is definitely subject

to the laws of the State of Texas, and this Court’s jurisdiction.

The Appellant has clearly failed in its burden to negate all possible bases for

this Court’s exercise of jurisdiction. As such, this Court has jurisdiction over

Appellant .

In this case, there is substantial evidence to prove that Appellant is pushing

its products in Texas (and here to stay in Texas). As noted herein above,

Appellant contracts with its authorized Texas dealerships in Texas, sells hundreds

of boats per year to these Texas dealerships (which are Texas companies), spends

millions of dollars per year to market their boats (in Texas, and other states),

28
contracts and pays warranty claims in Texas, contracts and pays recall claims in

Texas, sends its employees to Texas on a regular and frequent schedule, pays taxes

to the State of Texas to do business in Texas, contracts to assure applicability of

insurance contracts to claims made in Texas, trains sales persons to sell its

products in Texas, trains repair persons to repair its products in Texas, and more

and more in the State of Texas. Appellant is subject to the laws of the State of

Texas (and has agreed to be subject to such laws by the contracts it signs), and thus

is subject to this Court’s exercise of jurisdiction.

THIS COURT’S EXERCISE OF JURISDICTION DOES NOT
OFFEND TRADITIONAL NOTIONS OF FAIR PLAY

Even if a non-resident defendant has established minimum contacts within the

forum state (e.g., Texas), the non-resident defendant should not be hailed into

Texas court if to do so would violate notions of “fair play and substantial

justice.”50 As such, this court may consider various factors when evaluating

whether notions of “fair plan and substantial justice” are offended. The court may

consider: (1) the burden upon the defendant; (2) the interest of the forum state in

adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and

effective relief; (4) the interstate judicial system’s interest in obtaining the most

50
Asahi Metal industiral Company, Ltd. v. Superior Court of California, Solano County, 480
U.S. 102, 113-115 (1987); Burger King, 471 U.S. at 476; Guardian Royal, 815 S.W.2d at 231.

29
efficient resolution of controversies; and (5) the shared interests of the several

states in furthering substantial social policies.51

1. The burden upon Appellant --
At the risk of stating the obvious: If Appellant can sells boat to Texans, sell

boats to Texas companies (its authorized Texas dealerships), advertise in Texas,

honor warranty and recall claims in Texas, enter into contracts in Texas that are

performable in Texas, indemnify Texas companies for events in Texas, train sales

persons to sell boats in Texas, train repair persons to repair boats in Texas, send

their employees and managers to sell its products in Texas, and make franchise tax

payments to the State of Texas -- then Appellant should not even be heard to

suggest that litigating in Texas would be a burden. It would be disingenuous for

Appellant to reep the rewards of the business in Texas, and then duck for cover

when a claim gets filed in Texas. There is no more burden upon Appellant to

litigate in Texas than for Appellant to conduct its business in Texas (which it has

done for years). Appellant already has attorneys of its choosing in Houston,

Texas, and it is no burden for such a milti-national, multi-million dollar company

to appear in a Texas court.

51
World-Wide Volkswagen, 444 U.S. at 292; Burger King, 471 U.S. at 477; Asahi, 480 U.S. at
113.

30
 2. The interest of Texas in Adjudicating this Dispute in Texas --
The State of Texas has an interest in supporting the legal rights of those

residents of the State of Texas. This has long been the public policy supported by

our legislature, and by our judicial system. Texas residents (such as Rebecca

Chambers and John Dietz) have a right to expect that controversies arising in

Texas will be adjudicated in their home courts (not in a jurisdiction or venue of

another).

3. Plaintiff’s Interest in Obtaining Convenient / Effiective Relef --
Plaintiff now has this claim filed against Appellant and Defendant Dietz. In

its present posture, this multi-party dispute will be resolved in Nueces County,

Texas (the location where the incident occurred). This makes sense. If Appellant

’s special appearance is granted, then Plaintiff’s claims against Defendant Dietz

would be adjudicated in Texas -- but Plaintiff’s claims against Appellant would be

adjudicated in Tennessee.

Plaintiff’s legitimate interests to have the now-pending disputes resolved are

served by keeping this lawsuit in Nueces County, Texas. It is more convenient and

effeicient to the parties (certainly to Plaintiff and Defendant Deitz), and much more

convenient and efficient than trying one case in Texas and another case in

Tennessee. Thus, this factor bodes in favor of keeping this case in Nueces County,

Texas (also).

31
4. Interstate Judicial System’s Interest in Obtaining Efficient Resolution
Both Texas and Tennessee courts must support a process that allows for the

efficient resolution of all now-pending claims. The State of Tennessee cannot

exercise its jurisdiction over Defendant Dietz. Both Texas and Tennessee courts

would likely agree that Texas is the most convenient forum that may allow a

comprehensive / efficient adjudication of the disputes made the subject of this

lawsuit. The incident occurred in Texas. Many of the witnesses reside in Texas.

The law enforcement personnel who investigated the incident are in Texas. The

doctors attending to Rebecca Chambers are in Texas. Medical records are in

Texas. Far and away, both Texas and Tennessee courts should agree that this

dispute can most efficiently be resolved in the State of Texas.

5. Shared Interests of States to Further Social Policies --
Both Texas and Tennessee courts have a shared interest in advancing social

policies for their residents. Only Texas courts have this relationship to Plaintiff

and Defendant Dietz. The Texas courts have an interest in deciding disputes that

arise between Texas residents.

All factors strongly support the conclusion that this Court’s exercise of its

jurisdictional powers over Appellant would not ‘offend traditional notions of fair

play and substantial justice.’ The incident made the subject of this lawsuit

occurred in Nueces County, Texas. The claimant in this case is a Texas resident.

32
One of the defendants in this lawsuit is a Texas resident. All parties have -- for

many years -- agreed to subject themselves to the laws of the State of Texas. This

case needs to stay in Texas (for all of the reasons set forth herein above).

CONCLUSION
For the reasons set forth herein above, this Court may properly exercise its

powers of specific jurisdiction and general jurisdiction over Appellant . This

Appellant has clearly been engaged in business in the State of Texas (for many

years) -- and any pretense that Texas law somehow allows Appellant to reap the

benefits of doing business in Texas while avoiding any consequences is flawed.

The Appellant is subject to our Texas courts’ rule of law.

WHEREFORE, PREEMISES CONSIDERED, Plaintiff prays that Appellant

’s special appearance be denied, that this court maintian this case on its docket, that

Plaintiff be granted such other and further relief to which Plaintiff may be justly

entited (both at law and in equity), for for such other reief as is just and right.

Respectfully submitted,

Law Office of Douglas A. Allison
403 N. Tancahua
Corpus Christi, Texas 78401
Phone: 361/888-6002
Fax: 361/888-6651

33
 By: /s/ Douglas A. Allison
Douglas A. Allison
State Bar No. 01083500

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
forwarded on this 26th day of April, 2016, via Facsimile to the following counsel of
record, in accordance to Texas Rule of Appellate Procedure 9.5:

Via Facsimile: (713) 953-9470
Mr. Michael J. Wray
LEGGE, FARROW, KIMMITT, MCGRATH & BROWN, L.L.P.
5151 San Felipe, Suite 400
Houston, Texas 77056
ATTORNEY FOR APPELLANT
MASTERCRAFT BOAT COMPANY, LLC

Via Facsimile: (210) 340-9888
Mr. Larry J. Goldman
GOLDMAN & ASSOCIATES PLLC
10100 Reunion Place, Suite 800
San Antonio, Texas 78216
ATTORNEY FOR DEFENDANT
JOHN DIETZ
/s/Douglas A. Allison
Douglas A. Allison

34
 CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(B)(3), I certify that

this document contains 7721 words.

/s/Douglas A. Allison
Douglas A. Allison

35