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, v. 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. 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). 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: I. "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. 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 Texas," "Plaintiff's claims do not arise from and are not related to any activity conducted by Defendant in Texas," and "Defendant has no continuing and systematic contacts with Texas," are demonstrably false. Along with those discovery responses noted above, in response to Requests for Admission Nos. 1, 2 & 8, in the above-referenced Exhibit A, Defendant admits that Plaintiff wired over $89,000.00 in funds, which are specifically complained of in Plaintiff's First Amended Petition as being the subject of a loan agreement between Plaintiff and Defendant, to a joint account of Plaintiff and Defendant, and that said funds were used by Defendant to purchase a house in Iowa. See Exhibit A. Defendant specifically sought the funds from Plaintiff, a Texas resident, in Texas. Again, Plaintiff will also demonstrate, that Defendant sought out and obtained the agreement (and the funds arising from same), voluntarily, from a Texas resident, knowing full well that the funds would come from a Texas resident. As is set forth above and as Plaintiff will further show at the hearing on Defendant's Special Appearance, Plaintiff's allegations in this case amply demonstrate the applicability of the Texas long arm-statute in this case, that federal due process concerns are met in this case, and that this Court has personal jurisdiction over Defendant. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court deny Defendant's Special Appearance, that Defendant be required to appear and answer his First Amended Original Petition, and for such other and further reliefboth 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 Plaintiff under law. 1 In fact, Defendant testified at deposition that she still holds an active insurance license with TDI. [7] 29  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 Guillermo@thecronfel tirm.com By:/s/ Guillermo Ochoa-Cronfel Guillermo Ochoa-Cronfel State Bar No. 15175600 ATTORNEY FOR PLAINTIFF 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 1st day of July, 2015. Terry L. Scarborough Via E-mail: tscarborough(a}hslawmail.com V. Blayre Pefia bpena(t:{?hslawmail.com Hance Scarborough, LLP 450 W. 15th St., Ste. 950 Austin, Texas 78701 T: 512-479-8888 T: 512-482-6891 ATTORNEYS FOR DEFENDANT [8] 30 § 17.042. Acts Constituting Business in This State, TX CIV PRAC & REM § 17.042 Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 2. Trial, Judgment, and Appeal Subtitle B. Trial Matters Chapter 17. Parties; Citation; Long-Am1 Jmisdiction (Refs &Annos) Subchapter C. Long-Arm Jmisdiction in Suit on Business Transaction or Tort (Refs & Annas) V.T.C.A., Civil Practice & Remedies Code§ 17.042 § 17.042. Acts Constituting Business in Tllis St ate Currentness In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident: ( 1) contracts by mail or otherwise with a Texas resident and either party is to perfotm the contract in whole or in part in tlus state; (2) con:units a tort in whole or in part in tills state; or (3) recmits Texas residents, directly or through an intem1ediaty located in this state, for employment inside or outside this state. Ct·edits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Notes of Decisions ( 1526) V. T. C. A., Civil Practice & Remedies Code § 17.042, TX CIV PRAC & REM § 17.042 Oment through the end of the 2015 Regular Session of the 84th Legislature End of DocumPnt 0 10 15 Thomson Reuters. No claim to original US. Government Works. 'N~tt Next © 2015 Thomson Reuters No claim to original U S Government Works 38.1. Appellant's Brief, TX R APP Rule 38.1 Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annas) Rule 38. Requisites of Briefs (Refs &Annas) TX Rules App.Proc., Rule 38.1 38.1. Appellant's Brief Currentness The appellanfs brief must, tmder appropriate headings and in the order here indicated, contain the following: (a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court's judgment or order appealed from, and the nan1es and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8. (b) Table of Contents. The brief must have a table of contents with references to the pages of the brief. The table of contents must indicate the subje.c t matter of each issue or point, or group of issues or points. (c) Index ofAuthorities. The brief must have an index of authorities ananged alphabetically and indicating the pages of the brief where the authorities are cited. (d) Statement ofthe Case. The brief must state concisely the nature of the case (e.g., whetherit is a suit for danlages, on a note, or involving a mmder prosecution), the course of proceedings, and the fl·ial cowt's disposition of the case. The statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts. (e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral argument should or should not be pennitted. Any such statement must not exce.e d one page and should address how the court's decisional process would, or would not, be aided by oral argument. As required by Rule 39.7, any patty requesting oral argwnent must note that request on the front cover of the party's brief. (f) Issues Presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included. (g) Statement ofFacts. The brief must state concisely and without argtm1ent the facts pertinent to the issues or points presented. In a civil case, the cowt will accept as tme the facts stated tmless another party contradicts them. The statement must be supported by record references. (h) Summary of the Argument. The brief must contain a succinct, clear, and accw·ate statement of the arguments made in the body of the brief. This sullllllaly must not merely repeat the issues or points presented for review. '.\lt!stt Next © 2015 Thomson Reuters No claim to original U S Govemment Worl 2015 Thomson Reuters. No clatm to origwal U.S. Government Works. No claim to original U S Government Wor!~~~ 0 • • ••• i ·, .........· ·./· •. :, .. .' 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