Karen E. Landa v. Charles L. Farris

ACCEPTED
03-15-00497-CV
7774271
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/10/2015 5:02:33 PM
JEFFREY D. KYLE
CLERK
Case Number 03-15-00497-CV

IN THE THIRD DISTRICT COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
at Austin AUSTIN, TEXAS
11/10/2015 5:02:33 PM
JEFFREY D. KYLE
KAREN E. LANDA, Clerk

Appellant,

CHARLES L. FARRIS,

Appellee.

From Cause No. D-1-GN-14-004469 in the 98th Judicial District Court
Of Travis County, Texas

APPELLEE’S BRIEF

THE CRONFEL FIRM
Guillermo Ochoa-Cronfel
State Bar No. 15175600
2700 Bee Caves Road, Suite 103
Austin, Texas 78746
Telephone: (512) 347-9600
Facsimile: (512) 347-9911
Guillermo@thecronfelfirm.com

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED

November 10, 2015
Table of Contents

INDEX OF AUTHORITIES…………………………………………………...…...3

STATEMENT OF THE CASE………………………………………………..……7

STATEMENT REGARDING ORAL ARGUMENT…………………..………..…8

ISSUES PRESENTED..............................................................................................9

STATEMENT OF FACTS…………………………………………………...…...10

SUMMARY OF THE ARGUMENT………………………………….………..…13

ARGUMENT AND AUTHORITIES…………………………………………..…14

A. Standard of Review………………………………………...……...…....14

B. The Texas long-arm statute……………………………………………..18

C. Landa did not preserve any error with respect to whether or not Farris
met his initial burden to bring her under the Texas long-arm statute.
Moreover, Farris’s First Amended Petition contains sufficient personal
jurisdictional allegations to meet that initial burden. (Reply to
Appellant’s Issue 1)..................................................................................19

D. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h),
as it is inadequately briefed. Moreover, there is legally and factually
sufficient evidence in the record to support a finding by the trial court
that it has specific jurisdiction over Landa. (Reply to Appellant’s Issue
2)…………………………………………………………………….….23

E. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h),
as it is inadequately briefed. Moreover, there is legally and factually
sufficient evidence in the record to support a finding by the trial court
that it has general jurisdiction over Landa. (Reply to Appellant’s Issue
3)……………………………………………………………….…….…34

CONCLUSION…...................................................................................................38

[1]
PRAYER.................................................................................................................39

Certificate of Compliance........................................................................................41

Certificate of Service...............................................................................................41

Appendix.................................................................................................................42

[2]
INDEX OF AUTHORITIES

Page(s)

Cases

BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002)………………….……..14, 15, 16, 18, 26, 27, 36

Benoit v. Wilson,
279 S.W.2d 792 (Tex. 1951)………………………………………………..17

Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985)……………………………………………...……..26, 27

CSR Ltd. v. Link,
925 S.W.2d 591 (Tex. 1996)…………………………………………....27, 36

Carney v. Roberts Inv. Co.,
837 S.W.2d 206 (Tex.App.-Tyler 1992, writ denied)……………………….16

Citrin Holdings, LLC v. Minnis,
305 S.W.3d 269 (Tex.App.-Houston [14th Dist.]
2009, no pet.)………………………………………………..26, 27, 31, 32, 33

Daimler AG v. Bauman,
134 S.Ct. 746 (2014)………………………………………………………..14

Diversicare Gen. Partner, Inc. v. Rubio,
185 S.W.3d 842 (Tex. 2005)………………………………………………..23

Ennis v. Loiseau,
164 S.W.3d 698 (Tex.App.-Austin 2005, no pet.)……...15, 16, 17, 19, 20, 22

French v. Glorioso,
94 S.W.3d 739 (Tex.App.-San Antonio 2002, no pet.)…………………16, 17

GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G. v. Varme,
991 S.W.2d 785 (Tex. 1999)……………………………………………......20

[3]
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
815 S.W.2d 223 (Tex. 1991)…………………….…………….…….18, 19, 27

Happy Harbor Methodist Home, Inc. v. Cowins,
903 S.W.2d 884 (Tex.App.-Houston [1st Dist.] 1995, no writ)..…….….23, 25

Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984)………………………………………………….....26, 27

Helitrans Company v. Rotorcraft Leasing Co., LLC,
No. 01-13-00145-CV, 2015 WL 593310 (Tex.App.-Houston [1st Dist.]
Feb. 12, 2015, no pet.)(mem.op)……………………………..…………23, 24

Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 739 (Tex. 1992)………………………………………………..16

In re D.M.D.,
No. 04-09-00370-CV, 2009 WL 4861171 (Tex.App.-San Antonio
Dec. 16, 2009, no pet.)(mem.op)……………………………………………24

In re W.E.R.,
669 S.W.2d 716 (Tex. 1984)…………………………………………..........16

Int’l Shoe Co. v. Washington,
326 U.S. 310 (1945)………………………………………………………...26

Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199 (Tex. 1985)………………………..…..…………..15, 19, 20

McDonald v. Dankworth,
212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)………………………….17

McKanna v. Edgar,
388 S.W.2d 927 (Tex. 1965)………………………………………………..15

Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777 (Tex. 2005)………………………………….....26, 27, 32, 33

Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569 (Tex. 2007)………………………………………..26, 27, 36
[4]
Nogle & Black Aviation, Inc. v. Favaretto,
290 S.W.3d 277 (Tex.App.-Houston [14th Dist.] 2009, no pet.)…………....32

PHC-Minden, L.P. v. Kimberly-Clark Corp.,
235 S.W.3d 163 (Tex. 2007)………………………………………………..14

Pillai v. Pillai,
No. 07-14-00379-CV, 2015 WL 1221394 (Tex.App.-Amarillo
March 16, 2015, no pet.)(mem.op)……………….……...…29, 30, 31, 33, 34

Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442 (Tex. 1989)…………………………………….………….17

Pool v. Ford Motor Co.,
715 S.W.2d 629 (Tex. 1986)………………………………………………..17

Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333 (Tex. 2009)…………………………………………....33, 34

Ryan v. Abdel-Salam,
39 S.W.3d 332 (Tex.App.-Houston [1st Dist.] 2001, pet. denied)…………..25

Sisters of Incarnate Word, Houston, Tex. v. Gobert,
992 S.W.2d 25 (Tex.App.-San Antonio 1997, no pet.)……………..……….23

Small v. Small,
216 S.W.3d 872 (Tex.App.-Beaumont 2007, pet. denied)……….…….25, 26

Standard Fire Ins. Co. v. Morgan,
745 S.W.2d 310 (Tex. 1987)……………………………………………….16

Turner Schilling, L.L.P. v. Gaunce Mgmt.,
247 S.W.3d 447 (Tex.App.-Dallas 2008, no pet.)……………………....32, 33

U-Anchor Advertising, Inc. v. Burt,
553 S.W.2d 760 (Tex. 1977)……………………………………..….….18, 19

Worford v. Stamper,
801 S.W.2d 108 (Tex. 1990)………………………………………………..16

[5]
Wright v. Sage Engineering, Inc.,
137 S.W.3d 238 (Tex.App.-Houston [1st Dist.] 2004, pet. denied)…….15, 22

Wyatt v. Wyatt,
104 S.W.3d 337 (Tex.App.-Dallas 2003, no pet.) ……………………..…..17

Zac Smith & Co. v. Otis Elevator Co.,
734 S.W.2d 662 (Tex. 1987)………………………………………………..16

Statutes, Rules and Other Authorities

Tex. Civ. Prac. & Rem. Code §§17.041-.045……………………………..……….18

Tex. Civ. Prac. & Rem. Code §17.042…………………………………….….…...18

Tex. Civ. Prac. & Rem. Code §51.014(a)(7)………………………………...….…15

Tex. R. App. P. 9.4(i)…...........................................................................................41

Tex. R. App. P. 28.1(c)…………......…………………………………...............…..7

Tex. R. App. P. 38.1(h)…………......…………………..…..............9, 13, 14, 23, 34

[6]
STATEMENT OF THE CASE

Nature of the case: Plaintiff/Appellee Charles L. Farris (“Farris”) made
numerous loans to Defendant/Appellant Karen E.
Landa (“Landa”) from late 2010 through February,
2011, including a loan of approximately $90,000.00,
which Landa utilized as the down payment on a
purchase of real property in Iowa. After attempting,
unsuccessfully, to obtain repayment of the above-
referenced loans, Farris brought suit against Landa
alleging breach of contract, fraud/fraud in the
inducement, and quantum meruit.

The course of the Landa filed her Special Appearance on December
proceedings below: 22, 2014. The parties conducted discovery limited
to the issues relating to Landa’s Special Appearance,
and the trial court conducted a hearing on Landa’s
Special Appearance on July 2, 2015, during which
the trial court heard and considered the testimony of
both Farris and Landa, as well as the documentary
evidence admitted by the parties.

The trial court’s On July 21, 2015, the trial court entered its Order
disposition of the Denying Special Appearance of Defendant, Karen
case: E. Landa. Landa perfected this appeal by timely
filing her notice of appeal on August 6, 2015. On
August 11, 2015, Landa filed a Motion for
Enlargement of Time Pursuant to Rule 5, and
attendant Request for Findings of Fact and
Conclusions of Law. On August 12, 2015, the trial
court granted Landa’s extension request, and
declined to issue findings of fact and conclusions of
law pursuant to Tex. R. App. P. 28.1(c). Landa
subsequently filed; a Supplemental Request; a
Notice of Past Due Findings of Fact and Conclusions
of Law; and, an Amended Notice Concerning
Findings of Fact and Conclusions of Law. The trial
court did not issue findings of fact and conclusions
of law.

[7]
STATEMENT REGARDING ORAL ARGUMENT

This appeal involves the denial of Appellant Landa’s Special Appearance,

which by its nature turns on the jurisdictional touchstone of ‘purposeful availment’.

Oral argument would assist the Court in analyzing this fact-specific inquiry based

on the realities of the particular dispute.

[8]
ISSUES PRESENTED

Reply to Issue 1: Landa did not preserve any error with respect to whether or not
Farris met his initial burden to bring her under the Texas long-
arm statute. Moreover, Farris’s First Amended Petition contains
sufficient personal jurisdictional allegations to meet that initial
burden.

Reply to Issue 2: Landa has waived this point of error pursuant to Tex. R. App. P.
38.1(h), as it is inadequately briefed. Moreover, there is legally
and factually sufficient evidence in the record to support a
finding by the trial court that it has specific jurisdiction over
Landa.

Reply to Issue 3: Landa has waived this point of error pursuant to Tex. R. App. P.
38.1(h), as it is inadequately briefed. Moreover, there is legally
and factually sufficient evidence in the record to support a
finding by the trial court that it has general jurisdiction over
Landa.

[9]
to Plaintiff's claims in this case, Defendant has and has had long-standing, systematic and continuous

contacts with Texas. Plaintiff has carried his initial burden with respect to his jurisdictional

allegations.

II.

As the plaintiffhas carried his burden with respect to the jurisdictional allegations, the burden

now falls on the defendant challenging this Texas court's personal jurisdiction over her to negate all

jurisdictional bases. BMC Software, 83 S.W.3d at 793, citing Kawasaki Steel Corp. v. Middleton,

699 S.W.2d 199, 203 (Tex. 1985). Defendant's bare-bones pleading, containing only conclusory

statements (many of which are demonstrably false), attested to via verification, is insufficient to

accomplish this task. See, Tex. R. Civ. P. 120a(3); Small v. Small, 216 S.W.3d 872, 876-877

(Tex.App.-Beaumont 2007, pet. denied).

"A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First,

the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of

jurisdiction must be consistent with federal and state constitutional guarantees of due process."

Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990), citing Tex. Civ. Prac. & Rem. Code §§s

17.041- 17.069.

The Texas long arm-statute states in pertinent part, "In addition to other acts that may

constitute doing business, a nonresident does business in this ifthe nonresident: (1) contracts by mail

or otherwise with a Texas resident and either party is to perform the contract in whole or in part in

this state; (2) commits a tort in whole or in part in this state ... " Tex. Civ. Prac. & Rem. Code

§17.042. And importantly, " ... section 17.042's broad language extends Texas courts' personal

jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" BMC

[2]

24
containers in Austin, Travis County, Texas, through at least December, 2010, at a

cost of $1,500+ per month. II RR 39-41. During late 2010 and early 2011, while

staying with her mother, Landa continued to look for her own place in Iowa. II RR

41.

It was during late November/December, 2010, that Landa and Farris discussed

Farris providing Landa money for the down payment on a home. Landa testified

that she began discussing with Farris the idea of her trying to find a home in Iowa in

November of 2010, which led to further discussions between the two of them during

a weekend meeting in Dallas, Texas in December, 2010. II RR 46-48 & 50-51.

Farris testified that at the referenced December, 2010, weekend meeting the parties

discussed for the first time Landa seeking money for the down payment on a home

in Iowa, and reached an agreement regarding Farris’s loaning money to Landa for

that prospective down payment on a home. II RR 96-98. Moreover, from December,

2010, through February, 2011, Landa engaged in discussions with Farris regarding

numerous aspects of his provision of the money for the down payment in person, via

e-mail, and via telephone. II RR 65-66. Landa further represented to Farris that part

of their agreement regarding the down payment funds provided by Farris was that

Farris’s name would appear on the deed for the house, but despite Landa’s

representation, Farris’s name was stricken from the deed. II RR 66. Ultimately,

[11]
IV.

Amongst Defendant's attempts to negate the court's jurisdictional bases in this matter is her

sworn statement that, "Defendant does not now engage and has not engaged in business in Texas or

committed any tort, in whole or in part, within the state." Defendant's Special Appearance, -,r 2(b).

Plaintiff's testimony at the hearing on Defendant's Special Appearance will mirror the allegations in

his pleadings in this respect; chiefly, that he and Defendant entered into a loan agreement (in Texas)

whereby he would loan Plaintiff the funds at issue herein, and further, perform his obligations under

said agreement in whole or in part in Texas. Moreover, Defendant's P 1 Amended Responses to

Plaintiff's 1st Set of Discovery Requests also demonstrate the falsity ofDefendant' s above-described

statement. For example, in response to Requests for Admission Nos. 13-17, Defendant admits that;

(i) Karen Landa Insurance is a d/b/a of Defendant; (ii) as recently as 2014, Karen Landa Insurance

was a member of and/or sponsor ofthe Westlake Hills Chamber of Commerce; (iii) from (at least)

January, 2010 through March 13, 2015, Defendant held an active insurance license with the Texas

Department oflnsurance 1 ; and, (iv) within the last ten (1 0) years, Defendant served on the Board of

Directors of Austin Hospice Community Foundation. See First Amended Responses to First Set of

Discovery Requests to Defendant Karen E. Landa, attached hereto and incorporated herein as

Exhibit "A". By Defendant's own admission, and the testimony of Plaintiff, Plaintiff will

demonstrate that Defendant has engaged in business in the State of Texas, including the business at

issue in this matter.

Likewise, Defendant's sworn, conclusory statements that; "Defendant has no substantial

connection with Texas arising from any action or conduct ofDefendant purposefully directed toward

[6]

28
SUMMARY OF THE ARGUMENT

The trial court did not commit any reversible errors in denying Landa’s

Special Appearance. First, Landa’s complaint regarding the sufficiency of Farris’s

jurisdictional allegations for the purposes of the Texas long-arm statute fails as; (i)

Landa did not properly preserve any potential error in this respect; and, (ii) assuming

arguendo that she had properly preserved any such potential error, Farris’s

jurisdictional allegations are clearly sufficient to meet the requirements of the Texas

long-arm statute and ‘notice’ pleading. That is, Landa failed to properly preserve

any potential error on this point, and moreover, the trial court did not commit error

in finding that Farris met the requirements for jurisdictional allegations that would

properly invoke the Texas long-arm statute, thus requiring Landa to negate all bases

for personal jurisdiction.

Second, Landa’s complaint regarding the trial court’s finding of personal

jurisdiction on the basis of specific jurisdiction also fails, as; (i) Landa has waived

this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed;

and, (ii) there was legally and factually sufficient evidence adduced at the hearing

on Landa’s Special Appearance demonstrating the minimum contacts necessary for

such a finding. Accordingly, the trial court did not err to the extent its denial of

Landa’s Special Appearance is based on a finding of specific jurisdiction.

[13]
Finally, Landa’s complaint regarding the trial court’s finding of personal

jurisdiction on the basis of general jurisdiction also fails, as again; (i) Landa has

waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately

briefed; and, (ii) there was legally and factually sufficient evidence adduced at the

hearing on Landa’s Special Appearance demonstrating the minimum contacts

necessary for such a finding. Additionally, with respect to this point of error, Landa

overstates the Supreme Court’s recent holding(s) on general jurisdiction in Daimler

AG v. Bauman, and further misassociates the Texas Supreme Court’s holding(s) in

PHC-Minden, L.P. v. Kimberly-Clark Corp., with the notion that the door has been

“all but shut” on general jurisdiction based on a defendant’s contacts with the forum,

when those contacts are not related to the claim. 2 Accordingly, the trial court did

not err to the extent its denial of Landa’s Special Appearance is based on a finding

of general jurisdiction.

In sum, the trial court did not commit any reversible error in denying

Defendant’s Special Appearance.

ARGUMENT AND AUTHORITIES

A. Standard of Review.

“The plaintiff bears the initial burden of pleading sufficient allegations to

2
Daimler AG v. Bauman, 134 S.Ct. 746 (2014); PHC-Minden, L.P. v. Kimberly-Clark Corp., 235
S.W.3d 163 (Tex. 2007).
[14]
bring a nonresident defendant within the provisions of the long-arm statute.” BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002), citing

McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965). In the instant case, the trial

court found, explicitly and implicitly, that plaintiff carried this burden. II RR 31;

CR 31. Once the plaintiff has met this burden, the burden shifts to the defendant

challenging jurisdiction to negate all jurisdictional bases. BMC Software, 83 S.W.3d

at 793, citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985).

In an interlocutory appeal of a trial court’s order denying a special appearance,

the appellate court reviews de novo the question of whether a court has personal

jurisdiction over a defendant, as this is a question of law. Ennis v. Loiseau, 164

S.W.3d 698, 706 (Tex.App.-Austin 2005, no pet.), citing Tex. Civ. Prac. & Rem.

Code §51.014(a)(7); BMC Software, 83 S.W.3d at 794. Notwithstanding this,

“Questions of fact must frequently be resolved by the trial before reaching the

jurisdictional inquiry,” and “While a special appearance is not the appropriate stage

to make a determination on liability, we must consider facts regarding the

defendant’s actions that could foreseeably cause harm in Texas in order to determine

whether the defendant should have anticipated being haled into a Texas court.”

Ennis, 164 S.W.3d at 706, citing BMC Software, 83 S.W.3d at 794; Wright v. Sage

Engineering, Inc., 137 S.W.3d 238, 251 (Tex.App.-Houston [1st Dist.] 2004, pet.

denied).

[15]
47

1 A. When I got to Iowa -- I needed to do
2 something with my belongings, and so I talked to
3 Lee --
4 Q. (BY MR. SCARBOROUGH) The question --
5 A. -- probably November of 2014 -- or 2000 --
6 excuse me. It would have been the day I got there.
7 2010.
8 Q. November of 2014?
9 A. November --
10 Q. Excuse me. We both misspoke.
11 A. I know.
12 Q. Let's go back. It was -- you're saying
13 it's November of '10 --
14 A. Yes, after I got back to Iowa.
15 Q. -- is the first time there was ever any
16 discussion?
17 A. Yes. Yes, sir.
18 Q. Okay. Now, let's talk real briefly about
19 the trip to Dallas. You understand that -- well, let
20 me ask it this way: By this time frame, December of
21 2010, how long had you been divorced from the
22 plaintiff?
23 A. For a number of years.
24 Q. '91?
25 A. Since '91 to current.
48

1 Q. So 19 years?
2 A. Yeah, 19 years plus.
3 Q. Had y'all continued to have a relationship?
4 A. He adopted my first child, and we had
5 another child together. And so even though we've
6 been divorced, we've been in constant contact because
7 of the kids.
8 Q. What conversation did you have with the
9 plaintiff about where you would first meet? Was it
10 Dallas or somewhere else?
11 A. It was brought -- I told Lee I was trying
12 to find a place for me to be able to stay while I was
13 in Iowa, and I was surprised at how reasonable the
14 costs were on houses. I couldn't find a rental
15 house, but I talked to him that I was looking at
16 properties or a place that I could go. And so that
17 would have been in November of 2010.
18 But -- would you repeat the question?
19 I'm not sure what I'm -- I was trying to respond.
20 Q. I was checking on my time, and I'm not even
21 for sure that it was responsive. Let me try to move
22 on. I don't want to take too much time.
23 Yeah, the question I was asking is,
24 did you have a conversation with Mr. Farris about him
25 coming to Iowa to discuss this?
50

1 A. Yes, sir, it was.
2 Q. Did you meet him in Dallas?
3 A. I did.
4 Q. Did you spend a weekend there together?
5 A. I did.
6 Q. Stayed in the same hotel or motel room?
7 A. Yes, sir, we did.
8 Q. From when to when?
9 A. It was the weekend before Christmas. And
10 it was -- he picked me up on a Friday and took me
11 back to the airport at DFW on Sunday morning.
12 Q. At that point in time did you -- had you
13 found the condo that you wanted to buy and ultimately
14 bought in February of '11?
15 A. I had found a number of properties, but
16 there wasn't a specific property that I was trying to
17 focus on.
18 Q. My question that you didn't answer is, had
19 you found the specific one that you bought in
20 February?
21 A. I'd seen it, yes, sir.
22 Q. You'd seen it.
23 A. Yes.
24 Q. Okay. Did you -- so you had a number of
25 properties?
Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.

1991); U-Anchor Adver., 553 S.W.2d at 762.

Landa’s proposed first point of error, regarding the sufficiency of Farris’s

jurisdictional allegations, is waived as she did not raise it at the trial court, “In order

to preserve error for appeal, a party must make a timely objection ‘with sufficient

specificity to make the trial court aware of the complaint’ and obtain a ruling on the

record.” Ennis, 164 S.W.3d at 703, citing Tex. R. App. P. 33.1. Further,

“…defective jurisdictional allegations…must be challenged by a motion to quash,

not a special appearance.” Kawasaki Steel, 699 S.W.2d at 203. In Ennis, this Court

examined Kawasaki and determined that in “reading Kawasaki as a whole” a motion

to quash was not required in order to preserve a complaint regarding jurisdictional

allegations. Ennis, 164 S.W.3d at 704-705.

Nevertheless, Ennis does not stand for the proposition that Landa need not

have complained at all about the sufficiency of Farris’s jurisdictional allegations at

the trial court level in order to preserve a point of error related to same. In fact, the

Ennis court noted amongst the complaints in Ennis’s special appearance the

assertion that the plaintiff’s “jurisdictional pleadings were insufficient”. Ennis, 164

[19]
S.W.3d at 702. Moreover, in a case decided by the Texas Supreme Court after

Kawasaki (but predating Ennis) the Court said regarding Kawasaki, “…we did not

hold that a party waives a due process challenge for want of minimum contacts by

challenging the method of service in the special appearance. To the contrary,

although the defendant in Kawasaki had challenged the method of service in its

special appearance, we did not suggest that the defendant had thereby waived its

contest to jurisdiction based on minimum contacts.” GFTA Trendanalysen B.G.A.

Herrdum GMBH & Co., K.G. v. Varme, 991 S.W.2d 785, 786 (Tex. 1999). That is,

to the extent Ennis is a correct interpretation of the Texas Supreme Court’s ultimate

holding in Kawasaki regarding whether or not a motion to quash is required in order

to preserve a point of error related to the sufficiency of a plaintiff’s jurisdictional

allegations, the way to preserve such error is to raise it in the special appearance.

In the instant case, Landa did not raise the issue of a potential defect in Farris’s

jurisdictional allegations in her Special Appearance. CR 9-10. Landa also failed to

articulate a complaint regarding this issue at the hearing on her Special Appearance.

In fact, on this point Landa’s counsel made only the following remarks:

Mr. Scarborough: All right. Your Honor, as Mr. Cronfel and I have
discussed in this case, the burden – initial burden is on him
to plead sufficient facts. The Texas Supreme Court in the
Kelly case in 2010 says, if – and that’s a determination for
the Court. If he has not and we’ve proved that she is – the
defendant is a resident of another state, which she is, in
Iowa, that that’s the end of the case. Now, what I’ve told
Mr. Cronfel is this: I’ve assumed that the Court would
[20]
either find that the pleadings are sufficient, or would carry
that along, and that the burden immediately shifts to the
defendant to prove and negate the facts of the case. So I
want to make a short opening statement before we go any
further.

The Court: Are you okay with that, Mr. Ochoa-Cronfel?

Mr. Ochoa-Cronfel: Yes, ma’am.

The Court: Okay. Go ahead.
--II CR 8-9.

Mr. Ochoa-Cronfel: Your honor, one housekeeping matter: I’m
assuming, because we’re proceeding in this manner,
that the Court is – has taken the position that our
pleadings meet the initial burden?

The Court: Correct.

Mr. Ochoa-Cronfel: Correct. Thank you very much, Your Honor.

The Court: I mean, I think that Mr. Scarborough pretty much granted that.

Mr. Scarborough: Actually, what I said was I assume the Court would either
grant it or carry it along. And as I’ve not heard on the
record a ruling on that, so I’m assuming you’re carrying it.

The Court: Okay. I’ll carry it on. But I’m assuming that you’ve met that.
--II CR 31.

Mr. Scarborough: Since the burden of proof is on me, I get the last word.
--II CR 135.

The foregoing demonstrates that Landa also did not raise a complaint as to the

sufficiency of Farris’s jurisdictional allegations during the hearing on her special

[21]
appearance. In fact, the trial court believed that Landa had conceded that point. As

such, Landa waived any purported error in this regard.

Assuming arguendo that Landa did preserve this point of error, it still fails, as

Farris satisfied his burden of pleading sufficient jurisdictional allegations to subject

Landa to personal jurisdiction. In determining whether Farris met this burden, his

original pleadings, as well as his response to Landa’s Special Appearance can be

considered by the Court. Ennis, 164 S.W.3d, at 705, citing Wright, 137 S.W.3d at

249 n. 7.

As was the case in Ennis, here Farris’s live pleading alleged a number of facts

upon which Landa could be subjected to personal jurisdiction, including, but not

limited to the following:

1. Landa engaged in business and committed torts in the State of Texas;
2. Landa entered into an agreement with a Texas resident, Farris;
3. Landa and Farris both performed on said agreement, in whole or in part,
in Texas;
4. Landa made misrepresentations to Farris in Texas, in order to induce
Farris’s performance;
5. Landa communicated via telephone, text, e-mail, regular mail, and in-
person with a Texas resident, Farris, regarding said agreement;
6. Landa profited from her involvement with Farris, to his detriment;
7. Landa resided and worked in Austin for the better part of the last
twenty-plus years, up to and including parts of 2013-2014; and,
8. Landa maintained an active insurance license with the Texas
Department of Insurance from April, 1987 through April, 2015,
including owning and operating her own insurance agency in Austin as
recently as 2014.
--CR 15-22, Plaintiff’s First Amended Original Petition.

[22]
Additionally, Farris also filed a response to Landa’s Special Appearance which

further detailed why the court had personal jurisdiction over Landa. CR 23-30.

Therefore, Farris satisfied his initial burden of pleading a sufficient basis upon

which to subject Landa to personal jurisdiction, and the burden then shifted to Landa

to negate all bases for personal jurisdiction. Thus, the trial court did not commit

error in this regard.

D. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h),
as it is inadequately briefed. Moreover, there is sufficient evidence in the
record to support a finding by the trial court that it has specific
jurisdiction over Landa. (Reply to Appellant’s Issue 2).

Initially, with respect to her second point of error, Landa has failed to

adequately brief same as required by Tex. R. App. P. 38.1(h), and thus, has waived

this point of error. “A party asserting error on appeal bears the burden of showing

that the record supports the contention raised, and of specifying the place in the

record where matters upon which she relies or of which she complains are shown.

Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886-87 (Tex.App.-

Houston [1st Dist.] 1995, no writ); Tex. R. App. P. 38.1(h). Where this burden is not

carried, the party waives the point of error. Happy Harbor, 903 S.W.2d at 886-87.”

Sisters of Charity of Incarnate Word, Houston, Tex. v. Gobert, 992 S.W.2d 25, 31

(Tex.App.-San Antonio 1997, no pet.), disapproved of on other grounds by

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005); see also,

Helitrans Company v. Rotorcraft Leasing Co., LLC, No. 01-13-00145-CV, 2015 WL
[23]
593310, at *3 (Tex.App.-Houston [1st Dist.] Feb. 12, 2015, no pet.) (mem.op.); In re

D.M.D., No. 04-09-00370-CV, 2009 WL 4861171, at *2 (Tex.App.-San Antonio

Dec. 16, 2009, no pet.) (mem.op.).

As alluded to in Section A, above, Landa has failed to cite to or analyze any

of the evidence considered by the trial court that would tend to support its implied

findings of fact on this jurisdictional question. In fact, in her discussion on this point

of error Landa provides only three (3) citations to the reporter’s record which

ostensibly support her desired interpretation of the evidence, as opposed to

addressing how the evidence fails to support the trial court’s implied findings. Two

of those citations are to her own testimony and one is to Farris’s, and even those

scant citations to the record are mischaracterized. That is:

1. Landa cites Farris’s testimony at II RR 116 in support of the propositions that
no contract was entered into by the parties in Dallas because, “…the Parties
did not know the amount, the house, or even if a house would be purchased.”
In fact, Farris’s testimony at that citation was only that the parties’ meeting in
Dallas involved discussions regarding an agreement for him to provide Landa
money for her closing on a house in Iowa.

2. Landa cites her own testimony at II RR 52 in support of the propositions that,
“…Landa was in Iowa when: (1) she chose the house that would be purchased;
(2) decided how much money would be needed; and (3) all negotiations with
the lender took place.” However, to the extent Farris was involved at all in
negotiations with an additional lender in Iowa, Landa’s own testimony in this
regard is that such discussions took place, for Mr. Farris’s part, in Austin. See
also II RR 65-66.

3. Landa cites her own testimony at II RR 30 in support of the proposition that,
“…the transaction was closed in Iowa.” But this misses the point entirely, as
the transaction she is referring to is her closing on the house in Iowa. The
[24]
92

1 I was going to ask one or two
2 questions, and I'm going to be done.
3 THE COURT: Okay. Overruled.
4 What number do you have?
5 MR. OCHOA-CRONFEL: No. 4, Your Honor.
6 THE COURT: 4 will be admitted.
7 (Plaintiff's Exhibit No. 4 admitted.)
8 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, do you
9 recognize all four checks that are comprised of
10 Deposition [sic] Exhibit No. 4?
11 A. Yes, sir.
12 Q. Okay. And these checks were checks from my
13 client -- of monies from my client to you. Correct?
14 A. Yes, sir.
15 Q. Okay. And in the memo part, what does it
16 say in each one of these checks?
17 A. Loan.
18 Q. Okay. All right.
19 One last question; Ms. Landa, it is --
20 is it unreasonable to believe that Mr. Farris, who
21 provided you approximately $90,000 for the down
22 payment on the house, didn't expect to get that paid
23 back --
24 MR. SCARBOROUGH: Objection;
25 relevance. What his expectations were has nothing to
97

1 A. She was in Iowa at the time, and she was
2 taking care of her mom. She was living in her mom's
3 house, and she did not want to stay there. She was
4 having a difficult time living with her mom.
5 She had talked -- we had talked. We
6 continually were talking about things, but she wanted
7 to get her own place. And this is when she
8 approached me as far as the meeting in Dallas, wanted
9 to hook up and let's talk about things.
10 Q. Okay. When did this meeting in Dallas
11 occur?
12 A. December 17th, 2010.
13 Q. 2010. And was -- was it at that meeting in
14 Dallas that you understood for the first time that
15 she was seeking money for a down payment on this
16 house?
17 A. That's -- that's when we talked about --
18 yes.
19 Q. Okay. And did you reach an agreement with
20 Ms. Landa with regard to her request for this money?
21 A. We did. We did.
22 Q. Can you tell the Court what the terms of
23 that agreement were?
24 A. The agreement was that I would provide the
25 down payment. There was no specific property, but
98

1 she was looking at property. And I would provide the
2 down payment as long as I was on the deed. It was
3 going to be a loan, to be paid back, as long as I was
4 on the deed.
5 Q. Okay. And how were you going to get paid
6 back?
7 A. She promised me she would pay me back on
8 the death of her mom because she had a 150,000-dollar
9 life insurance policy on her mom.
10 Q. Okay. And I think you testified that
11 around that time her mom was ill when she visited
12 with you in Dallas?
13 A. That is correct.
14 Q. Okay. All right. So did you agree to loan
15 her that money?
16 A. At that point in time we agreed on the
17 conditions of it, yes.
18 Q. Did you know how much the money -- how
19 much -- what the amount the money was going to be at
20 that time?
21 A. At that time, no.
22 Q. Okay. Why is that?
23 A. I don't think she had found a specific
24 piece of property that she was going to purchase.
25 Q. Okay. So when you left -- when you-all
The following evidence adduced at the hearing on Landa’s Special

Appearance, while not necessarily an exhaustive list, supports the trial court’s

finding that it has specific jurisdiction over Landa:

1. Both Landa and Farris testified that they met in Dallas in December, 2010,
and there discussed (amongst other things) Farris’s provision of funds to
Landa for the purchase of a home. II RR 50-51 & 64-65 (Landa); II RR 97-
99 (Farris).

2. Farris testified that it was at this meeting in Dallas that he learned for the first
time that Landa was seeking money for a down payment on a house. II RR
97.

3. Both Landa and Farris testified that part of the agreement arising from the
meeting in Dallas were representations by Landa that the agreement would
include Farris’s name being on the deed for the home that Landa would
purchase utilizing the funds provided by Farris. II RR 66 (Landa); II RR 97-
98 (Farris).

4. Both Landa and Farris testified that they engaged in additional
communications (aside from the meeting in Dallas), via e-mail and telephone,
between the December meeting and February, 2011, to discuss Farris’s
provision of funds to Landa for the purchase of a home. II RR 65-66 (Landa);
II RR 99-101 (Farris).

5. Both Landa and Farris testified that Farris performed, wiring funds from his
bank accounts in Austin to a joint bank account in Iowa, to effect the above-
referenced provision of funds to Landa. II RR 67-68 (Landa); II RR 101-103
(Farris); III RR 18-19, Plaintiff’s Exh. 6; III RR 20-24, Plaintiff’s Exh. 7.

6. Both Landa and Farris testified that, despite Landa’s above-referenced
representations regarding the deed, and Farris’s performance in accordance
with the agreement, Farris’s name was ultimately stricken from the deed at
closing. II RR 66 (Landa); II RR 104-106 (Farris).

7. Both Landa and Farris testified that they engaged in constant communication
regarding the transaction after February, 2011 (and indeed, over the course of
the next 3+ years) via e-mail, telephone, text, regular mail, and/or in-person
[28]
communications in Austin. II RR 68-71, 73-76 & 78-79 (Landa); II RR 103-
114 (Farris); III RR 6-8, Plaintiff’s Exh. 1; III RR 9-10, Plaintiff’s Exh. 2; III
RR 25-204, Plaintiff’s Exh. 8; III RR 205-206, Plaintiff’s Exh. 9.

8. Both Landa and Farris testified that in May, 2012, on a visit to Austin, Landa
gave Farris a check in the amount of $15,000.00. II RR 57-58 & 69 (Landa);
II RR 107-108 (Farris); III RR 205-206, Plaintiff’s Exh. 9.

9. Landa testified that throughout all of the contacts that she had with Farris
regarding the transaction, be they in person, by phone, by text, by e-mail,
and/or by regular mail, Farris lived in Austin, Texas, and she was aware that
she was obtaining funds from a resident of Texas. II RR 65-66.

The record is replete with evidence that suggests, for the purposes of this special

appearance, that Landa took actions that constituted her ‘doing business’ in Texas –

such as entering into an agreement with and engaging in frequent communications

with Farris, a Texas resident, regarding his provision of funds to her for the purpose

of purchasing a home, and traveling to Texas to facilitate those dealings with Farris.

Moreover, the evidence also suggests, for purposes of this special appearance, that

Landa made misrepresentations to Farris, in Texas, for the purpose of

inducing/facilitating Farris’s performance in accordance with that agreement. Thus,

there is ample evidence from which the trial court could reasonably have found it

has specific jurisdiction over Landa in the instant case.

The memorandum opinion from the Amarillo Court of Appeals that Landa

relies on, Pillai v. Pillai, is easily distinguishable from the instant case on a number

of factual bases. Pillai v. Pillai, 07-14-00379-CV, 2015 WL 1221394 (Tex.App.-

Amarillo March 16, 2015, no pet.) (mem.op.). First, the record in Pillai failed to
[29]
disclose which party first broached the subject of a loan or the location of the parties

when the subject was broached. Pillai, 2015 WL 1221394 at *1. In fact, in Pillai

the plaintiff actually traveled to Canada regarding the parties’ transaction. Here, that

is not the case, as the record indicates that the subject of Farris loaning Landa the

money at issue was first broached by Landa, was broached by Landa while both

parties were in Texas, and moreover, at no point in the parties’ ongoing contacts

regarding the transaction was Farris not located in Texas. II RR 50-51 & 64-66

(Landa); II RR 97-99 (Farris). Second, while the record in Pillai disclosed that the

defendant traveled to Texas from Canada on multiple occasions, nothing in the

record indicated that anything the defendant did on those in-person visits related to

the loan transaction. Pillai, 2015 WL 1221394 at *1. Here, that is not the case, as

the record indicates that on multiple trips to Austin, and during times when Landa

was again residing in Austin, Landa and Farris negotiated and/or discussed the

transaction, and/or performed (in whole or in part) in accordance with their

agreement. II RR 50-51, 57-58, 64-67 & 69 (Landa); II RR 97-99 & 107-108

(Farris); III RR 205-206, Plaintiff’s Exh. 9. Third, while additional written

communications appeared in the record in Pillai, all save one failed to indicate where

the parties were when those communications were sent or received. Pillai, 2015 WL

1221394 at *1. Here, that is not the case, as the record indicates that at all times,

Landa was aware she was communicating with Farris, a Texas resident, with regard

[30]
110

1 Q. And you would be paid back from what?
2 A. The loan of the money --
3 Q. Okay.
4 A. -- on the house.
5 Q. All right. Now, here we are, May of 2012,
6 you get a check. You have communications with her
7 afterwards. Ms. Landa comes -- and she previously
8 testified that she came to visit in 2013?
9 A. That is true.
10 Q. Okay. And did you see her when she came to
11 visit in 2013?
12 A. I did.
13 Q. Okay. Did you-all talk about the loan in
14 2013?
15 A. Yes.
16 Q. Okay.
17 A. We did.
18 Q. Okay. Were you still asking to be paid
19 back?
20 A. Yes.
21 Q. Okay. And when she left to go back to Iowa
22 after that week visit in 2013, did you -- did you
23 have any communications with her?
24 A. Yes.
25 Q. Okay. And what -- what did those
282-83. The Citrin Court went on to say, “Here…the circumstances involve

multiple Texas contacts over many months in the course of an ongoing relationship

that ‘was not unilaterally initiated by the Texas resident.’ See Nogle & Black

Aviation, Inc. v. Favaretto, 290 S.W.3d 277, 283 (Tex.App.-Houston [14th Dist.]

2009, no pet.); cf. Michiana Easy Livin’ 168 S.W.3d at 784. These circumstances

demonstrate Citrin’s purposeful contact with Texas along with an intent to obtain

benefits from those contacts, and they defeat any suggestion that Citrin’s business-

related presence in Texas was merely ‘random, isolated, or fortuitous.’” Citrin

Holdings, LLC, 305 S.W.3d at 283. As detailed at length above, the evidence in the

instant case is similar to that described by the Citrin Court. These factual similarities

serve to illustrate why, as in Citrin, the trial court’s exercise of specific jurisdiction

in the instant case is proper.

Landa also misfocuses part of her argument on the fact that the parties’

agreement in the instant case called for (at least in part) performance by Farris in

Texas. Landa cites to an opinion from the Dallas Court of Appeals for her

proposition that, “…it does not matter that Farris was to conduct his obligations in

the state.” Appellant’s Brief, at 12, citing Turner Schilling, L.L.P. v. Gaunce Mgmt.,

247 S.W.3d 447, 456 (Tex.App.-Dallas 2008, no pet.). While Landa correctly

(albeit, incompletely) quotes Turner Schilling in this respect - “the plaintiff’s

performance of part of its contract duties in Texas is not a purposeful contact of the

[32]
defendant with Texas,” the conclusion she draws from this statement fails to

acknowledge the broader jurisdictional issue. Rather, it is the unilateral activity of

another party or third person that is not relevant to the jurisdictional inquiry. Turner

Schilling, 247 S.W.3d at 451-52, citing Michiana Easy Livin’, 168 S.W.3d at 785;

see also, Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 339

(Tex. 2009). When the contacts with Texas formed by the nonresident defendant

create a contractual relationship between her and the resident plaintiff whereby the

plaintiff performs pursuant to the contract, in whole or in part, in Texas, than the

analysis of those contacts and their effect (i.e., the plaintiff’s performance in Texas)

is certainly relevant to the minimum contact analysis. See Retamco Operating, Inc.,

278 S.W.3d at 340; Citrin Holdings, LLC, 305 S.W.3d at 281. If this were not the

case, the Texas long-arm statute itself would be rather precariously placed vis-à-vis

constitutional requirements given its definition of ‘doing business’.

Finally, one of Landa’s more curious arguments with respect to specific

jurisdiction centers on whether or not the parties actually made an agreement in

Dallas. That is, her contention is that the parties never reached an agreement while

Landa was physically in Texas, because they didn’t have a meeting of the minds in

Texas. This despite the fact that in her own testimony Landa refers to the parties’

agreement, and calls it a loan. II RR 66, 69. Nevertheless, Landa’s own “exemplar”

case, Pillai tells us that, “…it is not necessary for the non-resident to appear on Texas

[33]
126

1 $82,000; isn't there?
2 A. I see that now.
3 Q. Okay.
4 MR. OCHOA-CRONFEL: Your Honor, I'm
5 going to object again. We're getting to the merits
6 of the issue for which Mr. Scarborough was objecting
7 all afternoon -- been objecting all morning.
8 THE COURT: Why is this relevant,
9 Mr. Scarborough?
10 MR. SCARBOROUGH: Because it -- it
11 goes to the same argument I'd say for him; what's
12 good for the goose and is good for the gander.
13 THE COURT: Overruled.
14 MR. SCARBOROUGH: We'll offer those
15 two exhibits, 5 and 6 into evidence.
16 A. That was hidden from me. I never saw it.
17 MR. SCARBOROUGH: Objection;
18 nonresponsive.
19 THE COURT: Do we have 5 and 6?
20 THE REPORTER: No.
21 THE COURT: 5 and 6?
22 MR. POTTER: Yes, ma'am.
23 MR. SCARBOROUGH: We will -- we
24 will --
25 THE COURT: I cannot introduce them
court’s implied findings. Those are citations to her own testimony and exhibits, and

even those scant citations to the record are mischaracterized. That is:

1. Landa cites her own testimony at II RR 80 in support of the proposition that
she has lived and worked in Iowa for the past five years, except for a short
period of time she spent in Travis County trying to reconnect to her son. In
fact, Landa actually testified that during the last five years she has spent time
living and/or working in Texas, Iowa, Michigan, and New York, including
eight months or so that she again resided in Texas. II RR 37-42.

2. Landa’s other record citation is to her testimony and exhibits (II RR 62-63;
III RR 207-271, Defendant’s Exhs.1-4) regarding her filing state income tax
returns in Iowa. Of course, whether or not Landa filed state income tax returns
in a state other than Texas (or 2 states, or 10 states, or 20 states other than
Texas) demonstrates little to nothing with respect to the contacts she has or
doesn’t have with Texas.

Landa’s only other record citation with respect to this point of error is again to

Plaintiff’s First Amended Original Petition, at CR 16, where she quotes that pleading

(correctly) as stating, “The Court has jurisdiction over Defendant as a result of her

continuous and systematic contacts, both personal and professional, with Austin,

Travis County, Texas, for well over twenty (20) years, up to and including the time

this suit was filed.” Appellant’s Brief at 18. About this quote Landa says in her

brief, “This is not a true statement,” and supports her assertion with only the above-

referenced citations. When questioned on cross-examination at the hearing on her

special appearance Landa said the following:

Q: Now, Ms. Landa, you lived and worked in Austin, Texas, for the better
part of the last 20 years. Correct?

A: Yes, sir.
[35]
--II RR 79-80.

Once again, the remainder of Landa’s discussion on this point of error is

limited to a discussion of various authorities she believes apply to the instant case

on the basis of conclusory statements of “fact” regarding her ongoing and systematic

contacts with Texas (or lack thereof), without citations to support for same in the

record. In short, as with her second point of error, the foregoing demonstrates that

Landa has waived any purported error related to her third point of error, as she has

inadequately briefed same.

Assuming arguendo that Landa has not waived this point of error as discussed

above, her challenge on this point still fails. “If the defendant has made continuous

and systematic contacts with the forum, general jurisdiction is established whether

or not the defendant’s alleged liability arises from those contacts. Moki Mac, 221

S.W.3d at 575, citing BMC Software, 83 S.W.3d at 795-96; CSR Ltd., 925 S.W.2d

at 595.

The following evidence adduced at the hearing on Landa’s Special

Appearance supports the trial court’s finding that it has general jurisdiction over

Landa:

1. While Landa admitted that she had lived and worked in Austin for the better
part of the last twenty years on cross-examination, she went even further back
on direct examination, acknowledging that she had lived and worked in Austin
at least as far back as the mid ‘80s. II RR 33-35.

[36]
PLAINTIFF'S EXHIBIT NO. 9

~------------- ----
CONCLUSION

As the foregoing demonstrates, if ‘purposeful availment’ be the test, then there

is little doubt that Landa purposefully availed herself of the benefits, privileges, and

obligations of doing business in Texas with a Texas resident. Landa’s contacts with

Farris in Texas – be they in person, by phone, by text, by e-mail, and/or by regular

mail – were anything but random, isolated, or fortuitous. Landa made those contacts,

and cultivated those contacts, for the purpose of creating a relationship with Farris

whereby he would loan her significant funds for the purchase of a home. Certainly,

Farris took no unilateral actions to create said relationship or the contacts that Landa

made with the forum. The benefit to Landa was clear, and ultimately, equally so the

detriment to Farris.

Moreover, this is not the rare case in which the exercise of personal

jurisdiction does not comport with fair play and substantial justice once the

nonresident defendant has purposefully availed herself of the privilege of conducting

business in the forum. In fact, Landa has never asserted, either in her Special

Appearance, or at the hearing thereon, that being haled into Texas to respond to the

underlying lawsuit would cause any undue burden on her. In sum, the trial court

was correct in finding that it has personal jurisdiction over Landa with respect to this

matter, and there is no reason, compelling or otherwise, to disturb the trial court’s

finding in this respect.

[38]
PRAYER

Appellee requests that the Court of Appeals reject the issues raised by

Appellant on appeal and affirm the trial court’s Order Denying Special Appearance

of Defendant, Karen E. Landa, as; (i) Appellant’s first point of error was waived for

failure to properly preserve same; (ii) Appellant’s first point of error fails as Farris’s

jurisdictional allegations were sufficient to shift the burden to Landa to negate all

bases for personal jurisdiction; (iii) Appellant’s second point of error was waived

for failure to adequately brief same; (iv) Appellant’s second point of error fails as

the record demonstrates both factually sufficient and legally sufficient bases for the

trial court’s finding of specific jurisdiction; (v) Appellant’s third point of error was

waived for failure to adequately brief same; and, (vi) Appellant’s third point of error

fails as the record demonstrates both factually sufficient and legally sufficient bases

for the trial court’s finding of general jurisdiction. Thus, Appellant has failed to

demonstrate any reversible error by the trial court in denying Landa’s Special

Appearance. Appellee further requests such other and further relief to which he may

show himself justly entitled.

[39]
Respectfully submitted,

/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel
Texas Bar No. 15175600
The Cronfel Firm
2700 Bee Caves Road, Suite 103
Austin, Texas 78746
Telephone: (512) 347-9600
Facsimile: (512) 347-9911
Guillermo@thecronfelfirm.com

Counsel for Appellee,
Charles L. Farris

[40]
Certificate of Compliance

I certify that on November 10, 2015, this Appellee’s Brief was produced on a

computer and contains 7,869 words, excluding the caption, statement regarding oral

argument, table of contents, index of authorities, statement of the case, and statement

of the issues presented, and thus does not exceed the 15,000 word limit provided for

by Tex. R. App. P. 9.4(i).

/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel

Certificate of Filing and Service

I certify that on November 10, 2015, I used the Court’s electronic case filing

system to file this Appellee’s Brief and to serve this document on the counsel for

Appellant:

Mr. Terry L. Scarborough
Texas Bar No. 17716000
Ms. V. Blayre Pena
Texas Bar No. 24050372
Hance Scarborough, LLP
400 W. 15th Street, Suite 950
Austin, Texas 78701
Telephone: (512) 479-8888
Facsimile: (512) 482-6891
tscarborough@hslawmail.com
bpena@hslawmail.com

/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel

[41]
APPENDIX

Tab

1) Special Appearance of Defendant, Karen E. Landa dated December 22, 2014
(CR 9-12).

2) Plaintiff’s First Amended Original Petition dated June 24, 2015 (CR 15-22).

3) Plaintiff’s Response to Defendant’s Special Appearance dated July 1, 2015
(CR 23-30).

4) Tex. Civ. Prac. & Rem. Code §17.042.

5) Tex. R. App. P. 38.1(h)

6) Hearing Testimony of Karen E. Landa (II RR 32-94).

7) Hearing Testimony of Charles L. Farris (II RR 94-130).

8) Plaintiff’s Hearing Exhibit #1 (III RR 6-8).

9) Plaintiff’s Hearing Exhibit #6 (III RR 18-19).

10) Plaintiff’s Hearing Exhibit #7 (III RR 20-24).

11) Plaintiff’s Hearing Exhibit #9 (III RR 205-206).

[42]
12/22/2014 9:04:34 AM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
D-1-GN-14-004669
CAUSE NO. D-1-GN-14-004669

CHARLES L. FARRIS § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
vs. § TRAVIS COUNTY, TEXAS
§
KAREN E. LANDA, §
§
Defendant. § 98TH JUDICIAL DISTRICT

SPECIAL APPEARANCE OF DEFENDANT KAREN E. LANDA

Defendant, Karen E. Landa, in the above cause, makes this Special Appearance, pursuant

to Rule 120a of the Texas Rules of Civil Procedure, for the purpose of objecting to the jurisdiction

of the Court over Defendant Karen E. Landa, and as grounds will show the Court the following.

SPECIAL APPEARANCE

1. This special appearance is made as to the entire proceeding and is made before any motion

to transfer or any other plea, pleading, or motion filed by Defendant.

2. This court does not have jurisdiction over Defendant because Defendant is not amenable

to process issued by the courts of Texas because:

a. Defendant is not a resident of Texas and is not required to maintain and does not

maintain a registered agent for service in Texas.

b. Defendant does not now engage and has not engaged in business in Texas or

committed any tort, in whole or in part, within the state.

c. Defendant does not maintain a place of business in Texas and has no employees,

servants, or agents within the state.

d. Defendant has no substantial connection with Texas arising from any action or

conduct of Defendant purposefully directed toward Texas.

9
e. Plaintiffs claims do not arise from and are not related to any activity conducted by

Defendant in Texas.

f. Defendant has no continuing and systematic contacts with Texas.

3. The assumption of jurisdiction by the court over Defendant would offend traditional

notions of fair play and substantial justice, depriving Defendant of due process as guaranteed by

the Constitution of the United States.

PRAYER

For these reasons, Defendant requests that the court set this motion for hearing on notice

to Plaintiff, and that after hearing, the court grant this motion and dismiss the entire proceeding as

to Defendant for want of jurisdiction.

Respectfully submitted,

H ANCE SCARBOROUGH., LLP
450 W 151h Street, Suite 950
Austin, Texas 78701
Telephone: 512A79.8888
Facsimile: 512.482.6891

By: r -.[;(jL '-t~~tU.t~
Terry L. carborough
State Bar No. 17716000
tscaro borough@hslawmail.com
V. Blayre Pefia
State Bar No. 24050372
bpena@hslawmail.com

10
- I

VERIFI CATIOJioi

STATE OF IOWA §
§
coUNTYoFD~n~ s §

BEFORE ME, the undersigned authority. on this day app~ared Karen E. Landa, who,

being first duly swoml stated under oath that she is the Defendant in Utis case. She has read the

above and foregoi ng Special Appearance and that the fac tual statements contained in paragraph 2

are within her personal knowledge and true and correct

~~~ ,flv~L_
Karen E'. Landa

SVBSCRffiED AND SWORN TO BEFORE ME on this z_o4h day of December,

2014.

1-\1\/ii'II~Url l>lllJii I
COMMISSION NUMBER 753933 otary Public b1 and for
MY COMMISSi r EXPj8ES The State of Iow1:1
jl'28 '20 ] ,

11
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document h~s been
forwarded to all counsel and parties of record as set forth below on this the~~- day of
December, 2014, to wit:

VIA FACS.ll\ULE
Guillermo Ochoa-cronfel
THE CRONFEL FIRM
2700 Bee Cave road, Suite 103
Austin, Texas 78746
512-347-9600
512-347-9911 fax

borough

12
6/24/2015 4:24:42 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-14-004669 D-1-GN-14-004669

CHARLES L. FARRIS, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
KAREN E. LANDA, §
Defendant § 98th JUDICIAL DISTRICT

PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, CHARLES L. FARRIS, (hereinafter referred to as "Plaintiff' or

"Farris") complaining of KAREN E. LANDA, (hereinafter referred to as "Defendant" or "Landa")

and files his, First Amended Original Petition in this matter, and for causes of action respectfully

shows the Court as follows:

I.
PARTIES

1. Plaintiff is a resident of Austin, Travis County, Texas.

2. Defendant, is a resident of the State oflowa who has resided in Austin, Travis County, Texas,

and has conducted business with Plaintiff in Austin, Travis County, Texas. Defendant has already

been served in accordance with Tex. R. Civ. P. 108.

II.
DISCOVERY LEVEL

3. Plaintiff intends to conduct discovery under Level III of the discovery control plan, pursuant

to Texas Rule of Civil Procedure 190.4.

III.
JURISDICTIONNENUE

4. The Court has jurisdiction over Defendant, pursuant to Tex. Civ. Prac. & Rem. Code 17.041,

15
et. seq., because Defendant conducted business with Plaintiff in Austin, Travis County, Texas.

Plaintiff and Defendant entered into an agreement whereby Plaintiff would loan Defendant money

towards the purchase of a house, and Plaintiff was to perform his obligations under the agreement

between Plaintiff and Defendant, in whole or in part in this state. Moreover, the Court has

jurisdiction over Defendant as a result ofher continuous and systematic contacts, both personal and

professional, with Austin, Travis County, Texas, for well over twenty (20) years, up to and including

the time this suit was filed.

5. The Court has jurisdiction over the controversy because the damages are within the

jurisdictional limits of the Court. Plaintiff seeks monetary relief over $100,000 but not more than

$200,000, as well as costs of court and expenses, pre-judgment and post-judgment interest, and

attorney's fees.

6. Travis County is a proper venue for this action under§ 15.002 of the Tex. Civ. Prac. §Rem.

Code, as a substantial part of the events or omissions giving rise to the claim occurred in Travis

County, Texas.

IV.
FACTS

7. Beginning in the summer of2010 and going through (at least) February of2011, Plaintiff

made numerous loans to Defendant. The total amount of money loaned by Plaintiff to Defendant in

these transactions, and currently remaining un-repaid, is at least $95,434.86.

8. In December, 2010, Plaintiff and Defendant met for a weekend in Dallas, Texas. During that

time, Plaintiff and Defendant discussed trying to find a house in Iowa to purchase. The parties

reached an agreement whereby Plaintiff would make the required down payment on the house, as a

[2]

16
loan to Defendant, that Defendant would repay said loan, and that both parties' names would be on

the deed to the house.

9. In February, 2011, Plaintiff loaned Defendant approximately $90,000.00, by wiring said

monies from his bank in Austin to a joint account the parties held at a financial institution in Iowa,

which was to be used in the purchase of real property (a home) located at 7685 Escalade Court, West

Des Moines, Dallas County, Iowa 50266 (the "Property"). This loan was the culmination of the

above-referenced agreement between Plaintiff and Defendant that had taken place in December,

2010, in which Defendant sought out and requested the loan from Plaintiff specifically for the

purpose of purchasing the Property. The agreement between the parties on this matter contemplated

Plaintiffliquidating a CD which he had on deposit with his financial institution in Austin, in order to

obtain the funds to loan Defendant (the "Loan Funds"), and then sending the Loan Funds from his

financial institution in Austin, both actions which Plaintiff undertook in Austin.

10. The above-referenced arrangement between Plaintiff and Defendant also required Plaintiff to

engage in correspondence amongst Plaintiff, Defendant, and the financial institution in Iowa,

regarding the larger mortgage loan towards the purchase of the Property. This correspondence

included Plaintiff forwarding financial information and documentation from Austin to the Iowa

financial institution, ostensibly as a "co-borrower" on the mortgage loan related to the Property.

11. The Loan Funds, once forwarded from Plaintiff, in Austin, to a joint account of Plaintiff and

Defendant at a financial institution in Iowa, were to serve as the entire amount of cash required at

closing on the Property from the "borrower" in satisfaction of the mortgage agreement.

12. As part of the inducement for the above-referenced loan, and as alluded to above, Defendant

represented to Plaintiff that he would be included as a grantee on the warranty deed related to the

[3]

17
Property, as joint tenant with full rights of survivorship. In this way, Plaintiff would have some

interest in the Property to serve essentially as security for the loan. Defendant further represented to

Plaintiff that she would pay back the loan.

13. Moreover, Plaintiff relied on Defendant's long-standing, continuous, and systematic contacts

with Austin, Travis County, Texas, in agreeing to the above-referenced loan; (i) Defendant lived in

Austin for the better part of over the last twenty-plus (20+) years, up to and including 2014; (ii)

Plaintiff and Defendant were married and resided together in Austin for approximately seven (7)

years; (iii) Defendant maintained an active insurance license with the Texas Department oflnsurance

from April, 1987 through April, 2015, and in fact did business as an insurance agent for many of

those years in Austin and neighboring areas, including operating her own insurance agency, Karen

Landa Insurance, as recently as 20 14; (iv) Defendant was registered with the Texas Securities Board

as an Investment Adviser Representative from 2005-2008, working with multiple financial services

companies in Austin; (v) Defendant owned and/or operated Tribeza Magazine in Austin, Travis

County, Texas, in 2009-2010; and, (vi) over the course of her many years of residence and

professional life in Austin, Defendant contributed to and/or volunteered with a number of non-profit

groups in Austin, including, but not limited to Hospice Austin Fund and the Texas Governor's

Mansion.

14. Notwithstanding the agreement between the parties and her representations to Plaintiff (and

unbeknownst to Plaintiff at the time), once Plaintiff forwarded the Loan Funds from Austin to Iowa,

Defendant unilaterally removed Plaintiff from involvement in the mortgage loan, and then

unilaterally struck Plaintiff's name from the warranty deed when it was executed, and same was filed

of record in the real property records of Dallas County, Iowa, with Plaintiff's name crossed out as a

[4]

18
grantee.

15. Over the next three years, Plaintiff made numerous efforts to engage Defendant on these

matters, seeking to arrange for payment plans, or make some other kind of arrangements with

Defendant to address the outstanding amounts due, to little avail. Defendant came to Austin in May,

2012, and made a payment in the amount of$15,000.00 to Plaintiff, but no additional payments were

forthcoming.

16. On August 23, 2014, Plaintiff made written demand for payment of the above-referenced

debts on Defendant. Despite having received same, Defendant continues to make no efforts to repay

the amounts due or to make arrangements for the repayment of same.

v.
First Cause of Action (Breach of Contract)

17. Paragraphs 1 through 16, above, are incorporated herein by reference.

18. Defendant's above-described actions constitute Breaches of Contract with respect to the loans

made by Plaintiff to Defendant.

VI.
Second Cause of Action (Fraud and/or Fraud in the Inducement)

19. Paragraphs 1 through 16, above, are incorporated herein by reference.

20. Defendant's above-described actions support Plaintiff's claim for Fraud and/or Fraud in the

Inducement with respect to, at least, the approximately $90,000 that Plaintiff loaned Defendant

specifically for the purpose of purchasing the Property.

VII.
Third Cause of Action (Quantum Meruit)

21. Paragraphs 1 through 16, above, are incorporated herein by reference.

[5]

19
22. Alternatively, Defendant's above-described actions also support Plaintiff's Quantum Meruit

claim as Plaintiff provided loans to Defendant, Defendant accepted the benefit of said loans, and

Defendant had reasonable notice that Plaintiff expected that those loans would be repaid.

VIII.
Exemplary Damages

23. Paragraphs 1 through 20, above, are incorporated herein by reference.

24. Plaintiff intends to seek exemplary damages against Defendant, with respect to his cause of

action for Fraud and/or Fraud in the Inducement.

IX.
REMEDIES SOUGHT

25. The damages sought by the Plaintiff in this cause are within the jurisdictional limits of the

court.

26. Plaintiff seeks actual damages and exemplary damages totaling over $100,000 but not more

than $200,000, as well as costs of court and expenses, pre-judgment and post-judgment interest, and

attorney's fees.

X.
Attorney's Fees

27. Paragraphs 1 through 26, above, are incorporated herein by reference.

28. Plaintiff is entitled to his attorney's fees incurred in pursuit of this cause pursuant to (at least)

Tex. Civ. Prac. & Rem. Code §38.001, et. seq.

XI.
CONDITIONS PRECEDENT

29. All conditions precedent to bringing this suit and the relief sought herein have occurred or

have been taken.

[6]

20
PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited in the

manner and for the length of time required by law to appear and answer this Petition, and that upon

final hearing, Plaintiff have Judgment for; (i) Actual Damages and/or Exemplary Damages against

Defendant as set forth above; (ii) interest on any monetary damages awarded, from the date of

judgment at the legal rate; (iii) reasonable attorney's fees and costs of court; (iv) reasonable

attorney's fees in the event of appeal; and/or, for such other and further relief both general and

special, at law and in equity, to which Plaintiff may show himself justly entitled. Nothing herein is

intended as an election of remedies available to Plaintiffunder law.

Respectfully submitted,

Guillermo Ochoa-Cronfel
THE CRONFEL FIRM
2700 Bee Cave Road, Suite 103
Austin, Texas 78746
Telephone: 512-347-9600
Facsimile: 512-347-9911
Guillenno(Zuthecronfelfirm.com

By:/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel
State Bar No. 15175600
ATTORNEY FOR PLAINTIFF

[7]

21
CERTIFICATE OF SERVICE

I, Guillermo Ochoa-Cronfel, certifY by my foregoing signature that a true and correct copy of
the foregoing has been served via the method indicated below, pursuant to the Texas Rules of Civil
Procedure to the person(s) noted below on this the 24th day of June, 2015.

Terry L. Scarborough Via Texas eFiling
V. Blayre Pefia & E-mail: tscarborough(a}hslawmaiLcom
Hance Scarborough, LLP bpena@i;hslawmai Lcom
450 W. 15th St., Ste. 950
Austin, Texas 78701
T: 512-479-8888
T: 512-482-6891
ATTORNEYS FOR DEFENDANT

[8]

22
7/1/2015 7:52:26 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-14-004669 D-1-GN-14-004669

CHARLES L. FARRIS, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
KAREN E. LANDA, §
Defendant § 98th JUDICIAL DISTRICT

PLAINTIFF'S RESPONSE TO DEFENDANT'S SPECIAL APPEARANCE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, CHARLES L. FARRIS, (hereinafter referred to as "Plaintiff' or

"Farris") and files his, Response to Defendant's Special Appearance, and respectfully shows the

Court as follows:

"The plaintiffbears the initial burden of pleading sufficient allegations to bring a nonresident

defendant within the provisions of the long-arm statute." BMC Software Belgium, NV v. Marchand,

83 S.W.3d 789, 793 (Tex. 2002), citing McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965).

Plaintiff's Original Petition, as well as his live pleading, Plaintiff's First Amended Petition, set forth

in detail (amongst other things) allegations that; (i) Defendant entered into an agreement with

Plaintiff, in Texas, whereby Plaintiff would loan Defendant funds for the purchase of a house,

Defendant would pay Plaintiffback for said loan, and Plaintiff's name would be on the deed for said

house; (ii) Plaintiffs performance under the agreement would take place, in whole, within Texas;

(iii) Defendant breached the terms of that agreement; (iv) Defendant defrauded Plaintiff by

unilaterally striking his name from the Warranty Deed on her purchase of the above-referenced

house; and, (v) along with the above-referenced specific contacts Defendant has with Texas related

[1]

23
to Plaintiff's claims in this case, Defendant has and has had long-standing, systematic and continuous

contacts with Texas. Plaintiff has carried his initial burden with respect to his jurisdictional

allegations.

II.

As the plaintiffhas carried his burden with respect to the jurisdictional allegations, the burden

now falls on the defendant challenging this Texas court's personal jurisdiction over her to negate all

jurisdictional bases. BMC Software, 83 S.W.3d at 793, citing Kawasaki Steel Corp. v. Middleton,

699 S.W.2d 199, 203 (Tex. 1985). Defendant's bare-bones pleading, containing only conclusory

statements (many of which are demonstrably false), attested to via verification, is insufficient to

accomplish this task. See, Tex. R. Civ. P. 120a(3); Small v. Small, 216 S.W.3d 872, 876-877

(Tex.App.-Beaumont 2007, pet. denied).

"A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First,

the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of

jurisdiction must be consistent with federal and state constitutional guarantees of due process."

Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990), citing Tex. Civ. Prac. & Rem. Code §§s

17.041- 17.069.

The Texas long arm-statute states in pertinent part, "In addition to other acts that may

constitute doing business, a nonresident does business in this ifthe nonresident: (1) contracts by mail

or otherwise with a Texas resident and either party is to perform the contract in whole or in part in

this state; (2) commits a tort in whole or in part in this state ... " Tex. Civ. Prac. & Rem. Code

§17.042. And importantly, " ... section 17.042's broad language extends Texas courts' personal

jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" BMC

[2]

24
Software, 83 S.W.3d at 795, citing U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760,762 (Tex. 1977).

"Personal jurisdiction over nonresident defendants is constitutional when two conditions are

met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of

jurisdiction comports with traditional notions of fairplay and substantial justice." BMC Software, 83

S.W.3d at 795, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90

L.Ed. 95 (1945); see also, Small, 216 S.W.3d at 876-877, and Citrin Holdings, L.L.C. v. Minnis, 305

S.W.3d 269, 278-279 (Tex.App.-Houston [14 1h Dist.] 2009, no pet.).

Further, "Personal jurisdiction exists if the nonresident defendant's minimum contacts give

rise to either specific jurisdiction or general jurisdiction." BMC Software, 83 S.W.3d at 795, citing

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80

L.Ed.2d 404 ( 1984), and Guardian Royal Exchange Assurance, Ltd. v. English China Clays, P.L. C.,

815 S.W.2d 223, 226 (Tex. 1991). Moreover, "To determine whether a nonresident defendant has

sufficient minimum contacts with Texas to support the exercise of personal jurisdiction," turns on,

" ... whether the nonresident defendant 'purposefully availed' itself of the privilege of conducting

business in Texas." Citrin Holdings, 305 S.W.3d at 278, citing Burger King Corp. v. Rudzewicz,

471 U.S. 462,475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), andMichiana Easy Livin' Country, Inc.

v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In the 'purposeful availment' analysis the court

considers; (i) the defendant's actions; (ii) whether the defendant's actions were purposeful, as

opposed to random, isolated, or fortuitous; (iii) whether the defendant sought some benefit,

advantage, or profit by availing itself of the privilege of doing business in Texas. Citrin Holdings,

305 S.W.3d at278-279, citingMichiana, 168 S.W.3d at 785. And, lest we forget, "A defendant may

purposefully avoid Texas by structuring its transactions to neither profit from Texas's laws nor

[3]

25
subject itself to personal jurisdiction." !d. at 279, citing Burger King, 471 U.S. at 472, 105 S.Ct.

2174, and Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).

Finally, "Only in rare cases will the exercise of personal jurisdiction not comport with fair

play and substantial justice when a nonresident defendant has purposefully availed itself of the

privilege of conducting business within a forum." Citrin Holdings, 305 S.W.3d at 280, citing

Guardian Royal, 815 S.W.2d at 231.

III.

Specific Jurisdiction: "Specific jurisdiction over a nonresident defendant is established if (1) the

defendant's activities were purposefully directed to the forum state; and, (2) there is a substantial

connection between the defendant's forum contacts and the operative facts of the litigation. Citrin

Holdings, 305 S.W.3d at 279, citing Moki Mac, 221 S.W.3d at 585. Essentially, jurisdiction is

proper if the cause of action arises from some act or acts which constitute "doing business" in Texas,

as defined in the Texas long-arm statute. Schlobohm, 784 S.W.2d at 356-357.

Here, as was the case in Citrin Holdings, Defendant reached an agreement with Plaintiff

regarding the transfer of money at issue, through prolonged discussions with Plaintiff Defendant

communicated face-to-face with Plaintiff in Texas, and via telephone, e-mail, and mail, regarding the

contemplated transaction, which was performed by Plaintiff in whole in Texas, and by Defendant (at

the very least, in part) in Texas. With respect to the specific jurisdiction analysis, the Citrin Court

said, "These circumstances demonstrate Citrin's purposeful contact with Texas along with an intent

to obtain benefits from those contacts, and they defeat any suggestion that Citrin's business-related

presence in Texas was merely 'random, isolated or fortuitous.' Michiana, 168 S.W.3d at 785; see

also GJP, Inc. v. Ghosh, 25 1 S.W.3d 854, 879 (Tex.App.-Austin 2008, no pet.)." Citrin Holdings,

[4]

26
305 S.W.3d at 283. "The evidence of Texas-based contractual performance in this case reinforces

the exercise of specific jurisdiction." Citrin Holdings, 305 S. W.3d at 283, citing Texas Civ. Prac. &

Rem. Code §17.042(1); Nogle &Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277,283 (Tex.App.-

Houston [14th Dist.] 2009, no pet.); Fleischer v. Coffey, 270 S.W.3d 334, 338 (Tex.App.-Dallas

2008, no pet.).

General Jurisdiction: In a general jurisdiction analysis, the plaintiff's cause(s) of action need not

arise from or relate to the nonresident defendant's contacts with the forum, but the court's

jurisdiction over the defendant must be grounded in the defendant's contacts of a continuous and

systematic nature with the forum. Citrin Holdings, 305 S.W.3dat279, citingHelicopteros, 466 U.S.

at 414-416, 104 S.Ct. 1868, and Guardian Royal, 815 S.W.2d at 228. This is a more demanding

minimum contacts analysis than that required for specific jurisdiction, in which the court examines

the defendant's contacts and forum-related activities up to the time suit was filed. Citrin Holdings,

305 S.W.3d at279, citing Guardian Royal, 815 S.W.2dat228, andPHC-Minden, L.P. v. Kimberley-

Clark Corp., 235 S.W.3d 163, 170 (Tex. 2007).

In the instant case, the general jurisdiction inquiry by the Court should focus on Defendant's

long-standing, continuous and systematic contacts with Texas, which Plaintiff will show include; (i)

Defendant having lived and worked in Austin for a majority of the last twenty-plus (20+) years; (ii)

Defendant having lived and worked in Austin as recently as April, 20 14; and, (iii) Defendant holding

an active license with the Texas Department oflnsurance from April, 1987, to the present. Plaintiff

will show that not only should specific jurisdiction apply in this case, but general jurisdiction should

apply as well.

[5]

27
IV.