ACCEPTED
04-15-00398-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/21/2015 4:09:50 PM
KEITH HOTTLE
CLERK
NO. 04-15-00398-CV
CAROLINE BUSWELL, § IN THE FOURTH
FILED IN
4th COURT OF APPEALS
§ SAN ANTONIO, TEXAS
Appellant, § 09/21/2015 4:09:50 PM
v. § KEITH E. HOTTLE
§ Clerk
THE GWSPI COMPANY LLC AS § COURT OF APPEALS IN
SUCCESSOR IN INTEREST TO §
WILMINGTON TRUST, NA, §
TRUSTEE OF THE JEFFREY P. §
BLANCHARD 2013 FAMILY TRUST, §
§
Appellee. § SAN ANTONIO, TEXAS
APPELLANT’S REPLY BRIEF
Andrew G. Jubinsky
Texas Bar No. 11043000
andy.jubinsky@figdav.com
Lance V. Clack
Texas Bar No. 24040694
lance.clack@figdav.com
FIGARI + DAVENPORT, LLP
901 Main Street, Suite 3400
Dallas, Texas 75202
(214) 939-2000
(214) 939-2090 (Fax)
ATTORNEYS FOR APPELLANT
CAROLINE BUSWELL
IDENTITY OF PARTIES AND COUNSEL
Appellant Trial and Appellate Counsel
CAROLINE BUSWELL Andrew G. Jubinsky
Texas Bar No. 11043000
andy.jubinsky@figdav.com
Lance V. Clack
Texas Bar No. 24040694
lance.clack@figdav.com
FIGARI + DAVENPORT, LLP
901 Main Street, Suite 3400
Dallas, Texas 75202
(214) 939-2000
(214) 939-2090 (Fax)
Appellee Trial and Appellate Counsel
THE GWSPI COMPANY LLC AS J. Steve Mostyn
SUCCESSOR IN INTEREST TO jsmdocketefile@mostynlaw.com
WILMINGTON TRUST, NA, TRUSTEE OF Caroline L. Maida
THE JEFFREY P. BLANCHARD 2013 clmaida@mostynlaw.com
FAMILY TRUST
THE MOSTYN LAW FIRM
3810 West Alabama St.
Houston, Texas 77027
(713) 861-6616
(713) 861-8084 (Fax)
-i-
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
A. The Two Contacts Alleged by Appellee are Insufficient to
Confer Personal Jurisdiction. ................................................................ 2
1. The alleged contacts are insufficient to create specific
jurisdiction. ................................................................................. 3
2. The alleged contacts do not show purposeful availment. ........... 5
3. Buswell could not have reasonably anticipated being
haled into Court in Texas. ........................................................... 6
B. Kelly is Controlling. .............................................................................. 6
C. Finding That Buswell is Subject to Jurisdiction Offends
Traditional Notions of Fair Play and Substantial Justice. ................... 11
PRAYER ..................................................................................................................11
CERTIFICATE OF COMPLIANCE ....................................................................... 12
CERTIFICATE OF SERVICE ................................................................................ 13
-ii-
TABLE OF AUTHORITIES
Page(s)
Cases
Baker v. City of Robinson,
305 S.W.3d 783 (Tex. App.—Waco 2009, pet. denied) ...................................... 3
BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002)................................................................................... 2
Carey v. State,
2010 WL 2838631 (Tex. App.—San Antonio, July 21, 2010, pet. denied) ...3, 11
Fjell Tech. Group v. Unitech Int’l, Inc.,
2015 Tex. App. LEXIS 966, 2015 WL 457805 (Tex. App.—Houston
[14th Dist.] Feb. 3, 2015, pet. filed) .....................................................7, 9, 10, 11
Jordan v. Standard Acc. Ins. Co.,
339 S.W.2d 267 (Tex. Civ. App.—Beaumont 1960, no writ) .............................. 5
Kelly v. General Interior Const., Inc.,
301 S.W. 3d 653 (Tex. 2010)............................................................2, 3, 4, 6, 7, 8
Klenk v. Bustamante,
993 S.W.2d 677 (Tex. App.—San Antonio 1998, no pet.) .................................. 5
Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777 (Tex. 2005) ........................................................................7, 8, 9
Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333 (Tex. 2009) ............................................................................7, 9
Southern Underwriters v. Gallagher,
136 S.W.2d 590 (Tex. 1940) ................................................................................ 5
Willis v. Marshall,
401 S.W.3d 689 (Tex. App.—El Paso 2013, no pet.) .......................................... 3
-iii-
INTRODUCTION 1
Appellee bears the burden of showing that Buswell is subject to jurisdiction
in Texas. In its brief (“Appellee’s Brief”), Appellee does not contend that
“general” jurisdiction exists but rather argues that “specific” jurisdiction exists
based on two contacts: first, Buswell, while in Tennessee, reviewed “Texas
documents” and LSW relied on those documents when deciding to rescind the life
insurance policy due to misrepresentations on the application for insurance; and
second, Buswell sent a single letter to the Estate in San Antonio. [Appellee’s Brief,
p. 4, 20.] 2 The law is clear that a non-resident defendant is not subject to specific
jurisdiction in Texas merely because she reviewed documents originating from
Texas, and a single letter to the Estate, which is not a party to this lawsuit, does not
give rise to specific jurisdiction.
In addition, Appellee argues that Buswell “purposely availed herself of the
privileges and benefits offered by Texas while conducting her business in Texas,”
that Buswell could have anticipated being sued in Texas, and that the exercise of
jurisdiction over Buswell does not offend traditional notions of fair play and
substantial justice. These arguments fail as well. The law is clear that Buswell is
1
Defined terms herein have the same meaning as those set forth in Appellant’s Brief.
2
Appellee has substantially changed its position from the Trial Court, where it argued that
Buswell’s violations of the Texas Insurance Code subjected her to jurisdiction. Apparently
recognizing that its theory below was legally insupportable, Appellee has now shifted its focus to
the “Texas documents,” a phrase that appears several times in Appellee’s Brief, but not once in
Appellee’s Trial Court response to Buswell’s special appearance.
APPELLANT’S REPLY BRIEF – Page 1
not subject to jurisdiction in Texas, and therefore the Trial Court’s ruling should be
reversed.
ARGUMENT
A. The Two Contacts Alleged by Appellee are Insufficient to Confer
Personal Jurisdiction.
A Texas court may only exercise personal jurisdiction over a nonresident
defendant when (1) the plaintiff has established that defendant had minimum
contacts with the forum state, and (2) the exercise of jurisdiction comports with
traditional notions of fair play and substantial justice. See, e.g., Kelly v. General
Interior Const., Inc., 301 S.W. 3d 653, 657 (Tex. 2010); BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 795-96 (Tex. 2002). Appellee concedes that
personal jurisdiction requires: (1) minimum contacts; (2) purposeful availment; and
(3) reasonably forseeability that the defendant could be haled into a Texas court.
[Appellee’s Brief, p. 17.]
In this case, Appellee alleges only two contacts: Buswell’s review of “Texas
documents”; and Buswell’s letter to the Estate in San Antonio. [Appellee’s Brief,
p. 4, 20.] These contacts are insufficient to create specific jurisdiction. Further,
Appellee’s allegations, even if true, do not show that Buswell purposefully availed
herself of the benefits of doing business in Texas or reasonably anticipated being
APPELLANT’S REPLY BRIEF – Page 2
haled into a Texas court. As a result, Buswell is not subject to jurisdiction, and the
Trial Court should be reversed. 3
1. The alleged contacts are insufficient to create specific jurisdiction.
First, Buswell’s letter to the Estate is irrelevant for jurisdictional purposes.
The Estate is not a party to this lawsuit and has not brought any claims against
Buswell. In order for a contact to give rise to specific jurisdiction, it must give rise
to an asserted claim. Kelly, 301 S.W. 3d at 657. None of Appellee’s claims arise
from Buswell’s letter to the Estate. Appellee’s assertion that Buswell’s letter to the
Estate contained “actionable misrepresentations” 4 misses the point. Even assuming
the letter is “actionable,” which it is not, such an action must be brought by the
Estate. Baker v. City of Robinson, 305 S.W.3d 783 (Tex. App.—Waco 2009, pet.
denied) (holding that only the party to whom a misrepresentation was made could
sue for the misrepresentation); see also Willis v. Marshall, 401 S.W.3d 689 (Tex.
App.—El Paso 2013, no pet.). As such, the letter cannot be the basis for any claim
brought by Appellee. Id.
3
Appellee spends several pages arguing that it has met its burden to plead jurisdictional facts and
that Buswell must do more than simply establish non-residence, relying on Carey v. State, 2010
WL 2838631 (Tex. App.—San Antonio, July 21, 2010, pet. denied). This is a red herring.
Buswell has disproven all of the alleged grounds for jurisdiction. She has proven, by
uncontroverted and verified evidence, that she did not take any action in Texas, and has shown
that the contacts alleged by Appellee, if true, are insufficient to establish jurisdiction.
4
The letter informed the Estate that the Policy had been rescinded and gave the reasons for the
rescission. These statements were not “actionable misrepresentations,” and Appellee’s claim to
the contrary is barely colorable.
APPELLANT’S REPLY BRIEF – Page 3
Rather, Appellee’s claims are based on a letter sent to a predecessor trustee
in New York. Appellee’s assertion that “the letter was mailed to a non-party . . . is
entirely irrelevant,” misunderstands the entire nature of specific jurisdiction. In the
specific jurisdiction analysis, the contact is only relevant if it gives rise to the
lawsuit. Kelly, 301 S.W. 3d at 657 (“[s]pecific jurisdiction arises when . . . the
cause of action arises from or is related to those contacts or activities.”) Buswell’s
letter to the Estate did not give rise to any claims asserted by Appellee.
Accordingly, it cannot be the basis for specific jurisdiction. Kelly, 301 S.W. 3d at
657.
Second, Buswell cannot become subject to jurisdiction in Texas merely
because she reviewed documents created or originating in Texas. The “Texas
documents” consist of Mr. Blanchard’s medical records and his life insurance
application. [Appellee’s Brief, p. 4.] The only evidence in the Record is that
Buswell simply reviewed these records from her place of work in Tennessee.
There is no evidence that she traveled to Texas to review them. [CR 25.] The idea
that specific jurisdiction can be created over an out-of-state defendant merely
because the defendant reviewed a document originating in Texas is absurd, and
was expressly rejected in Kelly. Id. at 655-656 (holding that officers were not
subject to specific jurisdiction, even though they reviewed invoices originating in
Texas). Moreover, Appellee’s claims do not arise from Buswell’s review of the
APPELLANT’S REPLY BRIEF – Page 4
Texas documents, but from LSW’s rescission of the Policy. Simply put, this
alleged contact does not give rise to Appellee’s claim, and cannot form the basis
for specific jurisdiction. For this reason alone, the Trial Court should be reversed.
2. The alleged contacts do not show purposeful availment.
“To establish minimum contacts with the forum state, the defendants must
have purposefully availed themselves of the privilege of conducting activities
within the forum state, thus enjoying the benefits and protections of its laws.”
Klenk v. Bustamante, 993 S.W.2d 677, 681 (Tex. App.—San Antonio 1998, no
pet.), abrogated on other grounds by BMC Software. As Appellee concedes, the
defendant “must seek some benefit, advantage, or profit by availing itself of the
jurisdiction.” [Appellee’s Brief, p. 23.]
Appellee argues that Buswell “purposefully availed” herself of the
jurisdiction because her employer is based in Texas and because her employer
benefited from the rescission. [Appellee’s Brief, p. 25-26.] This is insufficient.
First, while LSW may be domiciled in Addison, Texas, Buswell lives and works in
Tennessee, and there is no evidence that she derived some benefit from the laws of
Texas while working for LSW in another state. See, e.g., Jordan v. Standard Acc.
Ins. Co., 339 S.W.2d 267, 269 (Tex. Civ. App.—Beaumont 1960, no writ) (holding
that an employee hired by a Texas entity to perform work in another state could not
claim the protection of Texas laws); Southern Underwriters v. Gallagher, 136
APPELLANT’S REPLY BRIEF – Page 5
S.W.2d 590 (Tex. 1940). Second, the fact that LSW may have benefited from
Buswell’s work does not show that Buswell derived some benefit from contacts
directed to Texas. In short, there is no evidence that Buswell sought some benefit,
advantage, or profit, from Texas.
3. Buswell could not have reasonably anticipated being haled into Court
in Texas.
Appellee’s assertion that Buswell could have reasonably anticipated being
haled into a Texas court begins with a misstatement of fact that vitiates the entire
argument. Appellee states: “Buswell was tasked with investigating the Texas life
insurance claim submitted by the Texas Trustee of the Blanchard Family Trust.”
[Appellee’s Brief, p. 21.] At the time of her investigation, however, it is undisputed
that the Trustee of the Blanchard Family Trust was domiciled in New York. [CR
25] [Appellee’s Brief, p. 2.] Buswell could not have reasonably anticipated that her
work in Tennesee would result in her being sued in Texas, merely because an
insured lived in Texas. This is especially true here, where the owner and
beneficiary was domiciled in New York.
B. Kelly is Controlling.
Appellee attempts to distinguish Kelly by arguing that the plaintiff in that
case failed to allege that any of the individual defendant’s wrongdoing occurred in
Texas, and failed “to plead jurisdictional facts tying [the individual defendant’s]
torts to Texas.” [Appellee’s Brief, p. 12.] Appellee then argues that it has “tied”
APPELLANT’S REPLY BRIEF – Page 6
Buswell’s alleged wrongdoing to Texas, relying on Retamco Operating, Inc. v.
Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009), Michiana Easy Livin’
Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005), and Fjell Tech. Group v.
Unitech Int’l, Inc., 2015 Tex. App. LEXIS 966, 2015 WL 457805 (Tex. App.—
Houston [14th Dist.] Feb. 3, 2015, pet. filed). [Appellee’s Brief, p. 13-14.]
Appellee misreads the allegations in Kelly, Michiana supports Buswell’s position,
and Appellee’s reliance on Retamco and Fjell is misplaced.
In Kelly, there is no question that the plaintiff pled facts “tying” the
individual defendant’s conduct to Texas. The essence of the plaintiff’s claim was
that the individual defendant misappropriated trust funds owed to a Texas
corporation for work done on a Texas project. Kelly, 301 S.W.3d at 655-656. The
individual defendants filed a special appearance stating that they did not do
business in an individual capacity in Texas. Id. The Supreme Court held that a
Texas court lacked jurisdiction over the individual defendants because there was
no allegation that they committed a wrongful act in Texas, expressly rejecting the
argument that the individual defendant’s wrongdoing was “related” to Texas. Id.
In this case, the essence of Appellee’s claim is that Buswell was involved in
the investigation of a life insurance claim originating in Texas. Buswell has filed a
special appearance stating that she does not do business, individually, in Texas,
and Appellee has not alleged, much less come forward with evidence sufficient to
APPELLANT’S REPLY BRIEF – Page 7
controvert Buswell’s special appearance, that Buswell actually committed a
wrongful act in Texas. Instead, Appellee alleges that Buswell reviewed some
documents originating in Texas and sent a letter to the Estate. This is insufficient
as a matter of law to establish minimum contacts or show purposeful availment.
Kelly, 301 S.W.3d at 657.
Michiana illustrates the purposeful availment requirement. As the Supreme
Court held, “[j]urisdiction is premised on notions of implied consent – that by
invoking the benefits and protections of a forum’s laws, a nonresident consents to
suit there.” Michiana, 168 S.W.3d at 785. The defendant in Michiana was not
subject to jurisdiction, because its contacts with Texas were created wholly by the
plaintiff, and was therefore unilateral activity that could not create jurisdiction.
Similarly, in this case, Buswell’s purported contacts with Texas were created
wholly by Mr. Blanchard’s decision to seek medical treatment in Texas and the
location of Mr. Blanchard’s Estate. As a result, the purposeful availment
requirement cannot be met here. To hold otherwise would mean that jurisdiction
over Buswell could be created anywhere that Mr. Blanchard sought medical
treatment, simply because his medical records and the Estate were located there.
This is not the law. Id.
In this regard, Appellee’s statement that “[t]he Texas Supreme Court, in
Michiana, did not hold that specific jurisdiction turns only on Texas-based
APPELLANT’S REPLY BRIEF – Page 8
contacts,” is simply wrong: Specific jurisdiction always turns on the defendant’s
contacts with the forum state. Id. (holding that, in evaluating contacts, “it is the
defendant’s conduct and connection with the forum that are critical”). The only
contacts alleged by Appellee are Buswell’s review of Texas documents and a
single letter to the Estate, and these are not sufficient. Id.
Appellee’s reliance on Retamco is likewise misplaced. In Retamco, the
defendant, a California entity, was sued under the Uniform Fraudulent Transfer
Act after it took title to oil and gas interests in Texas from an insolvent Texas
debtor. Retamco, 278 S.W.3d at 334. Unsurprisingly, the court found jurisdiction
because the defendant took title to valuable real property interests in Texas, and
acquired valuable rights enforceable under Texas law as a result. Id. The fact that
the defendant acquired real property was central to the analysis. As the court
stated, “when purchasing real property, the location matters.” Id. Obviously,
Buswell did not acquire any Texas assets as a result of her actions, and Retamco is
simply inapplicable.
Finally, Appellee’s reliance on Fjell is similarly misplaced. In Fjell, the
plaintiff sued a Norwegian entity and two individuals for theft of trade secrets.
Fjell, 2015 WL 457805 at *1. The first individual, Van Uden, had worked in the
plaintiff’s Houston offices, stole its confidential customer list, met with Texas
residents to discuss setting up a branch of the Norwegian entity in Houston,
APPELLANT’S REPLY BRIEF – Page 9
emailed marketing information to the customers on the list on behalf of the
Norwegian entity, and accepted a purchase order from a Texas entity. Id. at *4-5.
The court found that Van Uden was subject to jurisdiction, because he had actively
targeted the Texas market in stealing the customer list and sending out materials.
Id. The second individual, Karlsen, supervised Van Uden and was copied on his
marketing emails, but never personally sent emails to individuals in Texas or
traveled to Texas. Id. at *10-11. The court found that Karlsen was not subject to
jurisdiction in Texas, because he never took any action directed to the forum.
Buswell’s contacts are far closer to those of Karlsen than those of Van Uden.
Buswell had no involvement with the sale, underwriting, or issuance of the Policy.
There is no evidence or allegation in the record that she sought to sell policies in
Texas or otherwise do business in Texas. Rather, she reviewed records that, as a
result of Mr. Blanchard’s decision to seek treatment in Texas, came from Texas
hospitals, and sent one letter to a Texas estate, which is not a party to the lawsuit.
Appellee’s argument that Fjell stands for the proposition that, because Van
Uden sent emails to a non-party, Buswell’s letter to the Estate can support
jurisdiction [Appellee’s Brief, p. 15], misreads the case. Unlike here, the marketing
emails at issue in Fjell were relevant to the jurisdictional analysis because they
APPELLANT’S REPLY BRIEF – Page 10
established substantive elements of the plaintiff’s claims. Id. at *8-9. 5 In contrast,
Buswell’s letter to the Estate is not the basis of any of Appellee’s claims. 6
C. Finding That Buswell is Subject to Jurisdiction Offends Traditional
Notions of Fair Play and Substantial Justice.
It is undisputed that Buswell lives and works in Tennessee, and that her only
contact with Texas related to this dispute consisted of reviewing some documents
originating in Texas and sending a single letter to the Estate. It is neither fair nor
foreseeable that Buswell is subject to jurisdiction in every state where her
employer transacts business. Indeed, if Appellee’s argument is accepted,
employees in every business could be subject to suit in other states merely because
they made a decision that impacted someone in another state or reviewed
documents from another state. This is not the law. Buswell should be dismissed.
PRAYER
For the foregoing reasons, Appellant Buswell requests that this Court reverse
the Trial Court’s Order denying Buswell’s special appearance.
5
Specifically, the emails themselves were the wrongful conduct that gave rise to the plaintiff’s
damage claims under the Theft Liability Act and for conversion, unfair competition,
misappropriation, and breach of fiduciary duty. The emails contained statements that gave rise to
the plaintiff’s business disparagement claims, and constituted the interference that gave rise to
the plaintiff’s tortious interference claims.
6
Although Appellee does not cite Carey as supporting its argument, other than on the sufficiency
of its pleading, it is worth noting that the individual defendants in that case personally received
proceeds from the sale of retail installment contracts that originated in Texas, personally
guaranteed business obligations in Texas, actively marketed to Texas consumers, and traveled to
Texas on business. Carey, 2010 WL 2838631 at *6. Of course, Buswell did none of these things.
APPELLANT’S REPLY BRIEF – Page 11
Respectfully submitted,
By: /s/ Lance V. Clack
Andrew G. Jubinsky
Texas Bar No. 11043000
andy.jubinsky@figdav.com
Lance V. Clack
Texas Bar No. 24040694
lance.clack@figdav.com
FIGARI + DAVENPORT, LLP
901 Main Street, Suite 3400
Dallas, Texas 75202
Tel: (214) 939-2000
Fax: (214) 939-2090
ATTORNEYS FOR APPELLANT
CAROLINE BUSWELL
CERTIFICATE OF COMPLIANCE
This document complies the word-count limitations of Rule 9.4(i)(3)
because it contains 2,738 words as calculated per the word processing program
used for its preparation, excluding any parts exempted by Rule 9.4(i)(1).
/s/ Lance V. Clack
Lance V. Clack
APPELLANT’S REPLY BRIEF – Page 12
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has
been served via E-Service on the parties listed below on the 21st day of September,
2015.
J. Steve Mostyn
jsmdocketefile@mostynlaw.com
Caroline L. Maida
clmaida@mostynlaw.com
THE MOSTYN LAW FIRM
3810 West Alabama St.
Houston, Texas 77027
/s/ Lance V. Clack
Lance V. Clack
APPELLANT’S REPLY BRIEF – Page 13