ACCEPTED
04-14-00827-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/10/2015 5:26:37 PM
KEITH HOTTLE
CLERK
No. 04-14-00827-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
SAN ANTONIO, TEXAS
AT SAN ANTONIO, TEXAS 04/10/2015 5:26:37 PM
KEITH E. HOTTLE
Clerk
PT INTERMEDIATE HOLDING, INC. AND PERSONAL TOUCH HOLDING CORP.,
Appellants,
v.
LMS CONSULTING LLC,
Appellee.
On Appeal from the 45th Judicial District Court, Bexar County
Honorable Peter Sakai of the 225th Judicial District Court, Presiding
SURREPLY OF APPELLEE LMS CONSULTING LLC
Taylor Dunham and Rodriguez LLP Law Offices of Alejandro Mora PLLC
David E. Dunham Alejandro Mora
State Bar No. 06227700 alejandro@morahealthcarelaw.com
ddunham@taylordunham.com 7000 North Mopac Expressway
Jennifer Tatum Lee Suite 200
State Bar No. 24046950 Austin, Texas 78731
jtatum@taylordunham.com Telephone 512.514.6683
Isabelle M. Antongiorgi Facsimile 888.320.0589 (fax)
State Bar No. 24059386
ima@taylordunham.com
301 Congress Avenue, Suite 1050
Austin, TX 78701
Telephone 512.473.2257
Facsimile 512.478.4409
Counsel for Appellee LMS Consulting LLC
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
A. The Phrase “As Set Forth in Detail Above” Does Not Exclude Appellants
from the Breach of Contract Allegations .............................................................. 2
B. Appellee Pled Jurisdiction Based on More than the Alter Ego Theory ............... 3
C. Appellee Made No Judicial Admissions Negating Jurisdiction over
Appellants ............................................................................................................. 6
D. Appellants’ Arguments Fail because any Ambiguities Must Be
Interpreted in Appellee’s Favor ............................................................................ 7
E. Specific Jurisdiction Exists Based on the Tortious Interference Claim ............... 8
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE ................................................................................ 11
Surreply of Appellee LMS Consulting LLC Page (i)
TABLE OF AUTHORITIES
Page(s)
Cases
Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)................... 9
Coleman v. Klöckner & Co., 180 S.W.3d 577 (Tex. App.—Houston
[14th Dist.] 2005, no pet.) ................................................................................. 4, 5
CSR Ltd. v. Link, 925 S.W.2d 591 (Tex.1996) .......................................................... 9
Favour Leasing LLC v. Mulligan, Cause No. 05-13-01000-CV, WL
4090130 (Tex. App.—Dallas, Aug. 19, 2014, no pet.) .................................... 4, 8
Friesenhahn v. Ryan, 960 S.W.2d 656 (Tex. 1998) .................................................. 7
Haskell v. Border City Bank, 649 S.W.2d 133 (Tex. App.—El Paso
1983, no writ) ........................................................................................................ 7
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000)...................... 6
Huynh v. Nguyen, 180 S.W.3d 608 (Tex. App.—Houston [14th Dist.]
2005, pet. denied).............................................................................................. 3, 7
Ji-Haw Indus. Co. Ltd. v. Broquet, No. 04-07-00622-CV,--S.W.3d--,
2008 WL 441822 (Tex. App.—San Antonio, Feb. 20, 2008, no
pet.) ...............................................................................................................3, 5, 7
Kelly v. Gen. Interior Const. Inc., 301 S.W.3d 653 (Tex. 2010)........................... 5, 7
Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154 (Tex.
App.—Fort Worth, 2008) ..................................................................................... 9
Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied) ............................................................... 7
San Pedro Impulsora de Inmuebles Espciales SA de CV v. Villareal,
330 S.W.3d 27, 39 (Tex. App.—Corpus Christi 2010, no pet.) ....................... 3, 7
Surreply of Appellee LMS Consulting LLC Page (ii)
Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135 (Tex. App.—
Dallas 2003, pet. denied) ...................................................................................... 6
SITQ EU Inc. v. Reata Restaurants Inc., 111 S.W.3d 638 (Tex.
App.—Fort Worth 2003, pet. denied) ................................................................... 9
Stauffer v. Nicholson, 438 S.W.3d 205 (Tex. App.—Dallas 2014, no
pet.) ....................................................................................................................... 3
Tex. Parks & Wildlife Dept. v Miranda, 133 S.W.3d 217 (Tex. 2004) ..................... 7
Wright v. Sage Eng'g, Inc., 137 S.W.3d 238 (Tex. App.—Houston [1st
Dist.] 2004, pet. denied)........................................................................................ 3
Rules
Tex. R. Civ. P. 90 ....................................................................................................... 7
Tex. R. Civ. P. 91 ....................................................................................................... 7
Tex. R. Civ. P. 120a(3) .............................................................................................. 3
Surreply of Appellee LMS Consulting LLC Page (iii)
In Appellants’ Reply Brief, PT Intermediate Holding Inc. and Personal
Touch Holding Corp. do not point to any evidence to negate the trial court’s
implied finding that they, acting under the name “Personal Touch Home Care
Inc.,” contracted with Appellee for the recruitment of employees in Texas and
tortiously interfered with contracts performable in Texas. Instead, by selectively
citing (and selectively ignoring) excerpts of Appellee’s pleadings, they argue that
Appellee failed to adequately plead and present these arguments to the trial court.
Appellants’ arguments fail for the following reasons:
A. The phrase “as set forth in detail above” does not limit the scope of
Appellee’s allegations that all Defendants—including Appellants—breached
the recruitment and staffing contracts;
B. Any defect in Appellee’s pleading was waived because Appellants failed to
challenge the same by special exception before the trial court;
C. Any ambiguity in the pleadings must be interpreted liberally in Appellee’s
favor and any findings necessary to support the judgment inferred;
D. Appellee more than satisfied its pleading burden by expressly alleging that
Appellants did business in Texas and that Appellants, using the name
“Personal Touch Home Care Inc.,” entered into and breached the parties’
recruitment contracts;
E. Appellee’s allegations regarding the Texas entities’ contractual obligations,
do not contradict the allegations that Appellants contracted with Appellee or
that Appellants recruited employees in Texas; and
F. Texas law supports the exercise of specific jurisdiction based on Appellants'
intentional interference with contracts performable in Texas.
Surreply of Appellee LMS Consulting LLC Page 1
A. The Phrase “As Set Forth in Detail Above” Does Not Exclude
Appellants from the Breach of Contract Allegations
In Plaintiff's Second Amended Petition, Appellee pleads breach of contract
allegations against all Defendants, both before and after the “as set forth in detail
above” phrase upon which Appellants rely. See CR 277 at ¶ 20, CR 279-80 ¶¶ 31,
33, 35, 37. The definition of “Defendants”—which expressly includes
Appellants—appears on page one of Plaintiff’s Second Amended Petition, CR 269,
and is thus “set forth in detail above” the Appellee’s breach of contract claims,
which read as follows:
As set forth in detail above, Defendants entered into valid
and enforceable Staffing Agreements with LMSC. . . .
Defendants, however, breached their obligations to pay
LMSC amounts due under the Staffing Agreements. . . .1
As set forth in detail above, Defendants entered into valid
and enforceable Recruiting Agreements with LMSC. . . .
Defendants breached their obligations to pay LMSC
amounts due under the Staffing Agreements. . . . .
CR 279-80, ¶¶ 31, 33, 35, 37; see also CR 277 at ¶ 20 (”Defendants, however,
have failed and refused to pay to LMSC amounts due and owing to LMSC under
the Staffing Agreements.”). Therefore, Appellants’ attempt to defeat jurisdiction
based upon the phrase “as set forth in detail above” is unavailing.
1
The phrase “as set forth in detail above” does not appear in Paragraph 33 or 37 which
allege that Appellants breach their obligations by refusing to pay amounts owed.
Surreply of Appellee LMS Consulting LLC Page 2
B. Appellee Pled Jurisdiction Based on More than the Alter Ego Theory
Appellants ignore Appellee’s statement in its Second Amended Petition
asserting that “[t]he court has jurisdiction over [Appellants] also because both of
these entities purposefully availed themselves of the privileges and benefits of
conducting business in Texas.” CR 272 ¶ 11. This general allegation alone is
sufficient to satisfy Appellee's minimal pleading burden. Ji-Haw Indus. Co. Ltd. v.
Broquet, No. 04-07-00622-CV,--S.W.3d--, 2008 WL 441822, * 2 (Tex. App.—San
Antonio, Feb. 20, 2008, no pet.) Stauffer v. Nicholson, 438 S.W.3d 205, 212 n. 5
(Tex. App.—Dallas 2014, no pet.); (“The plaintiff is not required to detail all
theories or basis of personal jurisdiction relied upon.”); Huynh v. Nguyen, 180
S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (same).
In addition to this jurisdictional allegation (CR 272 ¶ 11), and the express
assertion that Appellants breached staffing and recruitment contracts with
Appellees (CR 277 ¶ 20; CR 279-80 ¶¶ 31, 33, 35, 37), Appellee repeatedly
asserted in its responses to the special appearances2 that Appellants did business as
“Personal Touch Home Care Inc.,” that Appellee contracted with “Personal Touch
Home Care Inc.,” and that Appellants recruited employees in Texas. CR 180-81
2
see also Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 249 (Tex. App.—Houston [1st
Dist.] 2004, pet. denied) (responsive pleadings considered in assessment of plaintiff's pleading
burden); Tex. R. Civ. P. 120a(3) (“The court shall determine the special appearance on the basis
of the pleadings, such stipulations made by the parties, any affidavits and attachments filed by
the parties.”); San Pedro Impulsora de Inmuebles Espciales SA de CV v. Villareal, 330 S.W.3d
27, 39 (Tex. App.—Corpus Christi 2010, no pet.) (hereinafter “Villareal”)(same).
Surreply of Appellee LMS Consulting LLC Page 3
¶¶ 1, 5; CR 233-239 (recruitment contracts); CR 248-256 (correspondence
reflecting Appellants' recruitment of employees); CR 257-259 (employment
application from Texas resident); CR 260-61 (employment offer to Texas
resident); CR CR 328-330 ¶¶ 1, 6, 7; CR 49-50 ¶¶ 3, 5-6, 8-10, 14, 17, 18; CR 60-
65.
Coleman v. Klöckner & Co., 180 S.W.3d 577 (Tex. App.—Houston [14th
Dist.] 2005, no pet.), on which Appellants rely3 is distinguishable in two respects.
First, the Coleman plaintiff's burden was greater than that imposed on Appellee.
Coleman involved a single-business-enterprise veil piercing theory, which is not
assessed under the general burden shifting analysis applicable here. For veil
piercing theories, the burden is always with the plaintiff. Appellee’s claims against
Appellants are not limited to veil piercing claims, but rather include direct contract
and tort claims, as well. See CR 269-88 ¶¶ 11, 20, 31, 33, 35, 37-42. Thus,
Appellee needed only satisfy the minimal pleading burden to shift the burden to
Appellants.
Secondly, where the plaintiff in Coleman failed to expressly plead veil
piercing, Appellee expressly alleged that Appellants did business in Texas, CR 272
¶ 11, directly breached the contracts calling for performance in Texas, CR 278-80,
3
Favour Leasing LLC v. Mulligan, Cause No. 05-13-01000-CV, WL 4090130 (Tex.
App.—Dallas, Aug. 19, 2014, no pet.), on which Appellants also rely, is inapposite as there was
no allegation of waiver of jurisdictional arguments.
Surreply of Appellee LMS Consulting LLC Page 4
¶¶ 20, 31, 33, 35, 37, and tortiously interfered with the contracts of Texas residents
that called for performance in Texas, CR 280 ¶¶ 38-42.
Further, the record reflects that the court considered Appellants’ identity as
the contracting party “Personal Touch Home Care Inc.” See 2 RR 45:2-46:15. In
Coleman, the court expressly noted that “there [wa]s nothing in the record to
suggest that the trial court either expressly or implicitly considered the relevant
factors of the single business enterprise.” Coleman, 180 S.W.3d at 587.
Here the trial court considered all the evidence and properly interpreted
Appellee’s pleadings and responses liberally in Appellee’s favor. See Ji-Haw
Indus. Co. Ltd., 2008 WL 441822, at * 2 (Tex. App.—San Antonio, Feb. 20, 2008,
no pet.) (citing Tex. Parks & Wildlife Dept. v Miranda, 133 S.W.3d 217, 226 (Tex.
2004)).
The trial court’s implicit finding that Appellants acted as “Personal Touch
Home Care Inc.” with respect to the contracts at issue in this case is more than
adequately supported by the record. See Kelly v. Gen. Interior Const. Inc., 301
S.W.3d 653, 657 (Tex. 2010) (“[A]ll facts necessary to support the judgment and
supported by the evidence are implied.”).
Surreply of Appellee LMS Consulting LLC Page 5
C. Appellee Made No Judicial Admissions Negating Jurisdiction over
Appellants
Appellants’ judicial admissions argument fails. “A judicial admission must
be a clear, deliberate, and unequivocal statement,” and “occurs when an assertion
of fact is conclusively established in live pleadings.” Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000).
Appellants fail to establish two necessary elements: (1) that the statements
on which they rely were “deliberate, clear, and unequivocal;” and (2) that the
statements are “not destructive of the opposing party’s theory of recovery.”
Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.—Dallas
2003, pet. denied) (listing 5 elements).
Appellee never alleged that it did not contract with Appellants and never
stated that Appellants did not recruit employees in Texas pursuant to the contracts
at issue. Just as the assertion that the American flag is red does not contradict the
assertion that it is also blue, the allegation that Appellants’ subsidiaries entered into
contracts with Appellants does not contradict and is not the “opposite” of the
allegation that Appellants entered into those same contracts with Appellees. Cf.
Reply at p. 5. Both Appellants and their Texas subsidiaries may be found to be
parties (even breaching parties) to the recruitment and staffing contracts at issue,
without any contradiction. In fact, this is precisely what Appellee’s pleadings
allege and what the evidence in the record supports, CR 269-88 ¶¶ 20, 31, 33, 35,
Surreply of Appellee LMS Consulting LLC Page 6
37; CR 180-81 ¶¶ 1, 5; CR 233-239; CR 248-256; CR 257-259; CR 260-61; CR
CR 328-330 ¶¶ 1, 6, 7; CR 49-50 ¶¶ 3, 5-6, 8-10, 14, 17, 18; CR 60-65. There are
gaps and assumptions in Appellants’ reading of Appellee’s pleadings, which could
have been addressed, if truly warranted, by way of special exception, but never
were.
D. Appellants’ Arguments Fail because any Ambiguities Must Be
Interpreted in Appellee’s Favor
To the extent any ambiguity existed in Appellee’s pleadings, on appeal any
such ambiguities must be construed in Appellee’s favor. Id.; see also Kelly, 301
S.W.3d at 657.
“In determining jurisdictional pleas asserted by a defendant, [courts] take as
true the pleadings and allegations of the plaintiff and review the pleadings and
allegations in the light most favorable to the plaintiff.” Pulmosan Safety Equip.
Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied); see also Tex. Dep’t of Parks & Wildlife, 133 S.W.3d at 226; Villarreal,
330 S.W.3d at 38; Ji-Haw Indus. Co., 2008 WL 441822, at *2; Huynh, 180 S.W.3d
at 619.
Additionally, Appellants waived any alleged defect in Appellee's pleadings
by failing to address it via special exceptions.4 Tex. R. Civ. P. 90; Haskell v.
4
Even if the trial court had sustained special exceptions, Appellee would undoubtedly be
given an opportunity to amend to correct any alleged deficiency. Tex. R. Civ. P. 91; e.g.
Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998).
Surreply of Appellee LMS Consulting LLC Page 7
Border City Bank, 649 S.W.2d 133, 134 (Tex. App.—El Paso 1983, no writ) (on
appeal of a special appearance, holding that any defect in the plaintiff's pleadings
was waived by the defendants’ failure to challenge the same by special
exceptions).
E. Specific Jurisdiction Exists Based on the Tortious Interference Claim
Appellee adequately pled specific jurisdiction arising out of Appellants’
tortious interference with Appellee’s contracts with Texas residents; Appellants
recruited these Texas residents and induced them to breach their contracts with
Appellee. CR 272 at ¶ 11; CR 280 ¶¶ 38-42. Appellants presented no evidence in
the trial court to negate these allegations. On this basis alone, the trial court’s
denial of Appellants’ special appearance should be affirmed.5
Appellants’ reliance on Favour Leasing LLC v. Mulligan, 2014 WL
4090130, is misplaced. In Favour Leasing LLC, the plaintiff alleged that the
appellants/defendants were recipients of fraudulent transfers occurring entirely
outside of Texas. Id. at *9. Unlike Favour Leasing, this case involves intentional
interference with the contracts entered into with Texas residents, where such
contracts being performable in Texas.
Presuming for the sake of argument that Appellants’ recruitment of Texas
residents was conducted through the computers and phones of their New York
5
Appellee regrets the typographical error in Appellee LMS Consulting LLC's Brief. The
trial court did not "dismiss" Appellants but rather denied their special appearance challenges.
See Appellee's Br. p 1.
Surreply of Appellee LMS Consulting LLC Page 8
office, their tortious conduct purposefully directed at Texas would be sufficient to
support specific jurisdiction. “It is not necessary that the nonresident defendant's
conduct actually occur in Texas, as long as the defendant's acts were purposefully
directed towards Texas.” Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d
154, 162-63 (Tex. App.—Fort Worth, 2008); see also Calder v. Jones, 465 U.S.
783, 789–90, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984); CSR Ltd. v. Link, 925
S.W.2d 591, 595 (Tex.1996); SITQ EU Inc. v. Reata Restaurants Inc., 111 S.W.3d
638, 646 (Tex. App.—Fort Worth 2003, pet. denied).
PRAYER FOR RELIEF
Appellee LMS Consulting LLC respectfully asks this Court to affirm the
trial court's orders denying Appellants PT Intermediate Holding Inc. and Personal
Touch Holding Inc.'s special appearances and that the Court grant it such other and
further relief to which it may be entitled.
Surreply of Appellee LMS Consulting LLC Page 9
Respectfully submitted,
TAYLOR DUNHAM AND RODRIGUEZ LLP
301 Congress Avenue, Suite 1050
Austin, TX 78701
512-473-2257
512-478-4409 (fax)
By: /S/Isabelle M. Antongiorgi
David E. Dunham
State Bar No. 06227700
ddunham@taylordunham.com
Jennifer Tatum Lee
State Bar No. 24046950
jtatum@taylordunham.com
Isabelle M. Antongiorgi
State Bar No. 24059386
ima@taylordunham.com
Counsel for Appellee LMS Consulting LLC
Surreply of Appellee LMS Consulting LLC Page 10
CERTIFICATE OF SERVICE
On April 10, 2015, the undersigned certifies that she served a copy of this
Brief of Appellees on the following by e-service, in compliance with Texas Rules
of Appellate Procedure 9.5 and 25.1(e):
Monte James
mjames@jw.com
Kimberly Gdula
kgdula@jw.com
Josh Romero
jromero@jw.com
Jackson Walker LLP
100 Congress Avenue
Suite 1100
Austin, Texas 78701
Counsel for Appellants
/S/Isabelle M. Antongiorgi
Isabelle M. Antongiorgi
Surreply of Appellee LMS Consulting LLC Page 11