ACCEPTED
02-15-00253-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
10/19/2015 12:00:00 AM
DEBRA SPISAK
CLERK
FILED
COURT OF APPEALS
IN THE SECOND COURT OF APPEALS SECOND DISTRICT OF TEXAS
FORT WORTH, TEXAS October 19, 2015
_______________________________________________________________
DEBRA SPISAK, CLERK
NO. 02-15-00249-CV
CHRISTOPHER HOSKINS
v.
RICCO FAMILY PARTNERS, LTD.
_______________________________________________________________
NO. 02-15-00253-CV
DENNIS ECKEL
v.
RICCO FAMILY PARTNERS, LTD.
_______________________________________________________________
Consolidated Appeals from the 442nd District Court of Denton County,
Texas
The Hon. Tiffany Haertling, Presiding
_______________________________________________________________
APPELLEE'S BRIEF
_______________________________________________________________
Cheryl D. Smith
State Bar No. 18552910
Law Office of Cheryl D. Smith
6001 Bridge Street Suite 102
Fort Worth, Texas 76112
817-475-3034
817-288-0641
ATTORNEY FOR APPELLEE
ORAL ARGUMENT REQUESTED
IN THE SECOND COURT OF APPEALS
FORT WORTH, TEXAS
______________________________________________________________
NO. 02-15-00249-CV
CHRISTOPHER HOSKINS
v.
RICCO FAMILY PARTNERS, LTD.
_______________________________________________________________
NO. 02-15-00253-CV
DENNIS ECKEL
v.
RICCO FAMILY PARTNERS, LTD.
_______________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Ricco Family Partners, LTD., Appellee, acting by and
through their attorney of record herein, and files this Appellee's Reply Brief for the
Court's consideration in this appeal from the denial of Appellants' Special
Appearance.
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . ii
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
I. Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
II. In Personam Jurisdiction over Hoskins and Eckel Was
Established by Ricco's Allegations . . . . . . . . . . . . . . . . . . . . . . . . . . .3
III. The Trial Court's Conclusions of Law are Legally Correct and
are Supported by the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
IV. Exercising Jurisdiction Over Hoskins and Eckel Would Not
Offend Traditional Notions of Fair Play and Substantial
Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i
INDEX OF AUTHORITIES
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). . .2, 3
C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d at 476
(Tex.App.-El Paso 1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
E.L.M. LeBlanc v. Kyle, 28 S.W.3d at 101
(Tex. App.-Texarkana 2000, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
George v. Deardorff, 360 S.W.3d 683, 687
(Tex. App.—Fort Worth 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). . . . . . . . . . . 6
Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas
1993, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 6
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007). . . . . 4,5
Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). . . .2,3
Scholz v. Heath, 642 S.W.2d 554, 559 (Tex.App.-Waco 1982, no writ) . . . . . . . . .5
SITQ E.U. Inc. v. Reata Restaurants, Inc. 111 S.W 3rd 638 (Tex. App.-Fort Worth,
2005 pet den.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Templeton v. Dreiss, 961 S.W.2d 645, 656 n. 8 (Tex.App.-San Antonio 1998, pet.
denied.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (West 2008). . . . . . . . . . . . . . . . . 3,4
ii
STATEMENT OF FACTS
Ricco Family Partners filed a suit for quiet title on February 14, 2014 to
resolve any issues related to the foreclosure Lot 8R Block A of Corporate Squate in
Denton County, Texas. (CR 50 ¶12). Christopher Hoskins and Dennis Eckel are the
limited partners in Vista Ridge Ltd. (Vista) and were originally named in the suit as
parties of interest. (CR 5). Ricco had previously foreclosed on the property of
which Vista, Hoskins and Eckel were liable on the note. (CR 50 ¶12). Vista,
Hoskins, and Eckel represented to Ricco that at the time of the foreclosure Zimba
Capital had a second lien on the property. (CR 6). Vista, Hoskins and Eckel were
served with Ricco’s Original Petition (CR 5) and answered the suit with Absolute
and Unconditional Disclaimers of any interest in the property in question. (CR 12,
15). Hoskins and Eckel did not file special appearances when they answered the
Original Petition with their disclaimers. (CR 12, 15). Unknown to Ricco, Hoskins
and Eckel agreed to extend and modify Vista's, their limited partnership, original
note to the second lien holder Zimba and claim it had been informally transferred to
Maracom prior to the foreclosure. CR 6) . This was in spite of the fact that Hoskins
and Eckel had no personal liability for Vista's note to Zimba and both Zimba and
Maracom knew Vista was insolvent. (CR 51 ¶22). Zimba’s claim had been
extinguished by the foreclosure and now Maracom was claiming a lien in excess of
l million dollars.(CR 51¶22).
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Hoskins and Eckel were then named as defendants when it was learned that they
had participated in a scheme to cloud Ricco’s title to the very property they lost in
foreclosure.
SUMMARY OF ARGUMENT
Specific jurisdiction over Hoskins and Eckel is proper due to their contacts
with Texas including entering in to contracts with Texas residents, making false
representations as to who the second lien holder on the property was to Ricco, and
engaging in actions with Maracom designed to harm Ricco’s financial interest in
Texas property. The Court’s conclusions of law were supported by the evidence
and jurisdiction over Hoskins and Eckel does not offend notions of fair play and
substantial justice.
ARGUMENT AND AUTHORITIES
I. Standards of Review
Whether a trial court has personal jurisdiction over a nonresident defendant
is a question of law that will be reviewed de novo. Moncrief Oil Int’l Inc. v. OAO
Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). If the trial court issues findings of
fact and conclusions of law on its denial of a special appearance, the appellant may
challenge the fact findings on legal and factual sufficiency grounds, and we may
review those fact findings for both legal and factual sufficiency. BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The plaintiff bears
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the initial burden of pleading sufficient allegations to bring a nonresident defendant
within the provisions of the long-arm statute. Id. At 179. A defendant
challenging a Texas court's personal jurisdiction over it must negate all
jurisdictional bases. Id at 149. If the plaintiff pleads fails to plead facts bringing
the defendant within the reach of Texas’s long-arm statue, the defendant only need
prove that he does not live in Texas to meet the burden to negate jurisdiction.
George v. Deardorff, 360 S.W.3d 683, 687 (Tex. App.—Fort Worth 2012, no pet.).
II. In Personam Jurisdiction over Hoskins and Eckel Was Established by
Ricco’s Allegations
Specific jurisdiction exists when the claim arises from or is related to
activities purposefully conducted in the forum state. Moncrief, 414 S.W.3d at 150.
Thus, to have minimum contacts for purposes of specific jurisdiction, a nonresident
defendant must by some act have purposefully availed itself of the privileges of
conducting activities. Id. Texas’s long-arm statute authorizes Texas courts to
exercise personal jurisdiction over a nonresident defendant who “does business” in
Texas. Under the statute, a nonresident “does business” in Texas if: the
nonresident “[1] contracts . . . with a Texas resident and [2] either party is to
perform the contract in whole or in part in this state.” Tex. Civ. Prac. & Rem. Code
Ann. § 17.042 (West 2008). Contracting with a Texas resident can satisfy the
Texas long-arm statute as long as the acts show minimal contacts and are
3
purposeful. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex.
2007).
Ricco’s facts supporting jurisdiction were as follows: Ricco is a Texas
Limited Partnership; Vista Ridge is a Texas Limited Partnership; Zimba is a
Texas entity; Maracom is a foreign corporation doing business in Texas.
1. Hoskins and Eckel contracted with Ricco for a loan on property in Texas.
(CR 49 ¶ 11 ).
2. Hoskins and Eckel informed Ricco they could no longer make payments
on the loan. (CR 50 ¶11).
3. Hoskins and Eckel represented that Zimba was the second lien holder on
the property. (CR 50 ¶17).
4. Foreclosure notices were sent to Vista, Hoskins, Eckel and Zimba. (CR
50 ¶12).
5. Following the foreclosure, Hoskins and Eckel agreed to a hold harmless
contract with Ricco which released all of the parties of any liability
related to the property. (CR 50 ¶14).
6. Hoskins and Eckel signed a quit claim deed to the property in Texas. (CR
50 ¶14).
7. Hoskins and Eckel both filed in this law suit statements of disclaimer to
the property without filing a special appearance. (CR 12, 15).
8. Hoskins and Eckel contracted with Maracom in 2014 through Vista to
expand, modify, and extend the original note with Zimba (Texas
Corporation) to Maracom. (CR 51 ¶ 22).
9. Vista was insolvent. Neither Zimba nor Maracom had made any attempt
to collect from Vista, Hoskins, or Eckel before or after the foreclosure
and renewal of the note. (CR 51 ¶ 22).
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10. Vista, Hoskins, and Eckel’s actions in renewing this note to Maracom
furthered Maracom’s claim that the property now had l million dollar lien
and Maracom was the lien holder. (CR 51 ¶ 22).
Ricco plead sufficient facts to subject Hoskins and Eckel to Texas
jurisdiction. Hoskins and Eckel did not negate any of the numerous facts plead by
Ricco. There is substantial connection between Hoskins and Eckel’s activities in
Texas and the operative facts of this litigation. See Moki Mac 221.S.E. 3d 585.
III. The Trial Court’s Conclusions of Law are Legally Correct and Are
Supported by the Evidence.
Appellate courts review a trial court's conclusions of law as a legal question.
Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997,
pet. denied). The appellant may not challenge a trial court's conclusions of law
for factual insufficiency; however, the reviewing court may review the trial court's
legal conclusions drawn from the facts to determine their correctness. Templeton
v. Dreiss, 961 S.W.2d 645, 656 n. 8 (Tex.App.-San Antonio 1998, pet. denied. If
the reviewing court determines a conclusion of law is erroneous, but the trial court
rendered the proper judgment, the erroneous conclusion of law does not require
reversal. Scholz v. Heath, 642 S.W.2d 554, 559 (Tex.App.-Waco 1982, no writ).
The trial court may accept the facts plead as evidence to support its conclusions of
law. See E.L.M. LeBlanc v. Kyle, 28 S.W.3d at 101 (Tex. App.-Texarkana 2000,
pet. denied); C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d at 476 (Tex.App.-
5
El Paso 1999, no pet.) If a trial court enters an order denying a special
appearance, and the trial court issues findings of fact and conclusions of law, the
appellant may challenge the fact findings on legal and factual sufficiency grounds.
See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-
Dallas 1993, writ denied). For legal sufficiency points, if there is more than a
scintilla of evidence to support the finding, the no evidence challenge fails. Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992).
The trial court’s conclusions of law are legally correct. Hoskins and Eckel
failed to specifically deny the allegations made in Ricco’s Fourth Amended
Petition, instead relied on a single statement that they did not commit any tort in
Texas. As such the trial court’s analysis of the pleadings and the facts that those
pleadings present support its conclusions of law.
Neither can Hoskins and Eckel hide behind Vista as a shield to their actions.
as officers and directors, Hoskins and Eckel are not protected from liability from
their own actions. SITQ E.U. Inc. v. Reata Restaurants, Inc. 111 S.W 3rd 638 (Tex.
App.-Fort Worth, 2005 pet den.). Hoskins and Eckel’s contacts with Texas due to
their misrepresentations and conspiracy.
IV. Exercising Jurisdiction Over Hoskins and Eckel Would Not Offend
Traditional Notions of Fair Play and Substantial Justice.
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Hoskins and Eckel have both conducted business in Texas since 1995. (CR
54). Hoskins and Eckel have been involved in various land and property ventures
in Texas since which required their active participation and management in Texas.
(CR 54). Dennis Eckel filed suit on a sworn account against Tammy Stalling in
1986, Dallas County, Cause No. 8602571A. (CR 55). Sears, Roebuck & Co. sued
Hoskins and Eckel in Dallas County, Cause No. 9508182C, on a sworn account in
1995 concerning Glenbrook Townhomes and obtained a default judgment. (CR
54). In 2007 both Hoskins and Eckel individually sued Allan Mobile Homes, Inc.,
and American Sportman’s Club in in Denton County, Cause No. 50056-367. (CR
55).
Hoskins and Eckel filed special appearances and affidavits denying they had
committed any torts in Texas. (CR 31, 38). Hoskins and Eckel did not specifically
deny the allegations of prior business dealings in Texas or previous lawsuits or the
various allegations made by Ricco against Hoskins and Eckel in its Fourth
Amended Petition. (CR 31, 38). Hoskins and Eckel have been very active in Texas
since the 1990s through their various business holdings for which they maintain
directorships, presidencies, and shareholder status. (CR 54). Those businesses are
as follows:
1. 1995 American Properties, LLC, Texas Limited Liability Company, both
Hoskins and Eckel are officers. (CR 54).
2. 1996 Glenbrook Management, Inc., a Texas Corporation, Hoskins and
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Eckel are directors. (CR 54).
3. 1996 Brentwood Management, Inc. Texas Corporation, Hoskins and
Eckel are directors. (CR 54).
4. 1997 Vista Ridge, Corporation and Ltd., organized in the State of Texas,
Eckel and Hoskins are officers and directors. (CR 54).
5. 1998 Timber Creek Management, Inc., a Texas Corporation, Eckel and
Hoskins are officers and directors. (CR 54).
6. 2014 Josey Lane Management, Inc., Texas Corporation, Hoskins is
President, Eckel is Vice President. (CR 54).
7. 2015 Landmakers, LLC, a Texas Limited Liability Corporation, both
Hoskins and Eckel are members. (CR 54).
Therefore, due to their extensive activity in Texas, it would not be an undue
burden to litigate this case in Texas. Hoskins and Eckel have current real estate
holdings in Texas through American Properties (CR 5 ¶ 4, 5) and Landmakers,
LLC.
PRAYER
WHEREFORE, Appellee, Ricco prays that this Court sustain the Trial
Court’s finding that Christopher Hoskins and Dennis Eckel are subject to Texas’
jurisdiction. Appellee prays for any and all relief, in equity or at law, which it may
be entitled to receive.
Respectfully submitted,
/s/cheryldsmith
Cheryl D. Smith
State Bar No. 18552910
Law Office of Cheryl D. Smith
8
6001 Bridge Street Suite 102
Fort Worth, Texas 76112
817-475-3034
817-288-0631 fax
Lawoffice76102@yahoo.com
ATTORNEY FOR APPELLEE
CERTIFICATE OF WORD COUNT
I, the undersigned attorney, hereby certify and represent to the Court that this
Appellee’s Brief includes 1981 words as the length of the document, with every
word and every part of the document counted, including headings, footnotes and
quotations. Parts of the document not included are the caption, identity of parties
and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix as listed in Rule 9 of the TEX.
R. APP. P.
/s/cheryldsmith
Cheryl D. Smith
9
CERTIFICATE OF SERVICE
A true and correct copy of Appellee’s Brief was served on Appellant
according to the Texas Rules of Appellate Procedure, this 20th day of October,
2015, by e-service through the Pro Doc e-Filing service.
/s/cheryldsmith
Cheryl D. Smith
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