ACCEPTED
03-15-00335-CV
6286512
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/30/2015 9:54:05 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00335-CV
FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
____________________________________________
AUSTIN, TEXAS
7/30/2015 9:54:05 AM
JEFFREY D. KYLE
HERBERT ROLNICK Clerk
v.
SIGHT’S MY LINE, INC, et al
____________________________________________
Accelerated Appeal from the 200th District Court
Travis County, Texas
Brief of Appellee Riggs, Aleshire & Ray, P.C.
______________________________________________
KIDD LAW FIRM
819 West 11th Street
Austin, TX 78701
512-330-1709 (fax)
Scott R. Kidd
State Bar No. 11385500
512-330-1713
scott@kiddlawaustin.com
Scott V. Kidd
State Bar No. 24065556
512-542-9895
svk@kiddlawaustin.com
TABLE OF CONTENTS
Table of Contents i
Index of Authorities ii
Caption 1
Statement of Facts 1
Summary of Argument 7
Argument & Authorities 8
Standard of Review 8
No Error In Denial Of Unsworn Special Appearance 9
Rolnick’s Contacts Meet The “Minimum Contacts”
Test For Jurisdiction in Texas 12
Analysis Of The Jurisdictional Facts 15
Fair Play And Substantial Justice 22
Conclusion 25
Prayer 26
Certificate of Compliance 26
Certificate of Service 27
i
INDEX
OF
AUTHORITIES
Cases
Abilene
Diagnostic
Clinic,
PLLC
v.
Paley,
Rothman,
Goldstein,
Rosenberg,
Eig
&
Cooper,
Chartered,
364
S.W.3d
359
(Tex.
App.—Eastland
2012,
no
pet.)
19
Ahrens
&
DeAngeli
v.
Flinn,
318
S.W.3d
474
(Tex.App.—
Dallas
2010,
pet.
denied)
19
Am.
Type
Culture
Collection,
Inc.
v.
Coleman,
83
S.W.3d
801
(Tex.
2002)
14
BMC
Software
Belgium,
N.V.
v.
Marchand,
83
S.W.3d
789
(Tex.
2002)
8,
9,
13
Burger
King
Corp.
v.
Rudzewicz,
471
U.S.
462
(1985)
22,
23
Casino
Magic
Corp.
v.
King,
43
S.W.3d
14
(Tex.
App.—
Dallas
2001,
pet.
denied)
10,
11
CSR
Ltd
v.
Link,
925
S.W.2d
591
(Tex.
1996)
12
Guardian
Royal
Exch.
Assurance,
Ltd
v.
English
China
Clays,
P.L.C.,
815
S.W.2d
223
(Tex.
1991)
15,
23
Kelly
v.
Gen.
Interior
Construction,
Inc.,
301
S.W.3d
653
(Tex.
2010)
12,
13
Kytel
International
Group,
Inc.
v.
Rent-‐A-‐Center,
Inc.,
132
S.W.3d
717
(Tex.
App.—Dallas
2004,
no
pet.)
11
Markette
v.
X-‐Ray
X-‐Press
Corp.,
240
S.W.3d
464
Tex.
App.—Houston[14th
Dist.]
2007,
no
pet.)
20
Michiana
Easy
Livin’
Country,
Inc.
v.
Holten,
168
S.W.3d
777
(Tex.
2005)
14,
15,
19,
20
ii
Moki
Mac
River
Expeditions
v.
Drugg,
221
S.W.3d
569
(Tex.
2007)
12,
13,
14
Moncrief
Oil
International,
Inc.
v.
OAO
Gazprom,
414
S.W.3d
142
(Tex.
2013)
13,
15
Proskauer
Rose
LLP
v.
Pelican
Trading,
Inc.,
2009
WL
242993
(Tex.
App.—Houston
[14th
Dist.]
2009)
20,
22
Prosperous
Maritime
Corp.
v.
Farwah,
189
S.W.3d
389
(Tex.
App.—Beaumont
2006,
no
pet.)
10,
11
Retamco
Operating,
Inc.
v.
Republic
Drilling,
278
S.W.3d
333
(Tex.
2009)
13
Siemens
AG
v.
Houston
Casualty
Company,
127
S.W.3d
436
(Tex.
App.—Dallas
2004,
no
pet.)
11
Villapando
v.
De
La
Garza,
793
S.W.2d
274
(Tex.
App.—Corpus
Christi
1990,
no
writ)
10
York
v.
State,
73
Tex.
651,
11
S.W.
869
(1889),
aff’d
137
U.S.
15,
11
S.Ct.
869
(1889)
9
Statutes
and
Rules
TEX.
CIV.
PRAC.
&
REM.
CODE
§17.41
12
TEX.
R.
CIV.
P.
120a
9
iii
NO. 03-15-00335-CV
IN THE THIRD COURT OF APPEALS
____________________________________________
HERBERT ROLNICK
v.
SIGHT’S MY LINE, INC, et al
____________________________________________
Accelerated Appeal from the 200th District Court
Travis County, Texas
Brief of Appellee Riggs, Aleshire & Ray
______________________________________________
Comes
now
Appellee
Riggs,
Aleshire
&
Ray
and
files
this
Appellee’s
Brief.
STATEMENT
OF
FACTS
Appellant’s
Statement
of
Facts
includes
many
characterizations
of
the
facts
and
omits
certain
important
evidence.
Accordingly,
Appellee
Riggs,
Aleshire
&
Ray
offers
its
own
Statement
of
Facts.
Sight’s
My
Line,
Inc.,
(“SML”)
is
a
Florida
corporation
that
was
engaged
in
the
retail
optical
business
in
Texas.
(CR
389,
390).
SML
had
1
locations
in
several
South
Texas
cities,
and
it
did
business
only
in
Texas.
(CR
390,
514).
The
sole
stockholder
of
SML
was
Stewart
Lantz
(“Lantz”),
a
resident
of
Florida.
(CR
391)
Herbert
Rolnick
(“Rolnick”)
is
a
lawyer
living
in
Coral
Gables,
Florida.
(CR
502).
He
has
represented
Lantz
and
entities
in
which
Lantz
has
been
involved
for
over
twenty
years.
(CR
382).
Rolnick
represented
Lantz
in
the
formation
of
SML.
(CR
390,
503).
In
2009,
SML
came
under
investigation
by
the
Texas
Health
&
Human
Services
Commission
related
to
a
possible
overcharge
claim.
(CR
389,
548).
To
represent
SML
in
that
investigation,
Lantz
retained
Jason
Ray
(“Ray”),
a
member
of
Riggs,
Aleshire
&
Ray
(“RAR”).
(CR
548).
Ray
is
Board
Certified
in
Administrative
Law
by
the
Texas
Board
of
Legal
Specialization.
(CR
548).
Lantz
had
engaged
in
some
initial
negotiations
with
American
Optical
Services
(“AOS”)
about
a
potential
sale
of
the
assets
of
SML
to
AOS,
but
those
negotiations
had
not
progressed
and
Lantz
had
abandoned
the
process.
(CR
503-‐504).
However,
in
June
2012,
Lantz
decided
that
he
should
again
pursue
sale
of
the
SML
business
due
to
his
perception
of
the
regulatory
climate
related
to
the
business.
(CR
382).
Negotiations
with
AOS
began
again.
(CR
504).
2
AOS
is
a
Delaware
Corporation
with
its
principal
place
of
business
in
Nevada.
The
parties
did
negotiate
a
contract
for
sale
of
the
assets
of
SML
to
AOS,
and
that
contract
was
dated
October
5,
2012.
Rolnick
represented
SML
in
the
negotiations
and
sale
for
a
flat
fee
of
between
$40,000.00
and
$50,000.00.
(CR
394,
514).
The
negotiations
for
the
sale
were
all
handled
by
Rolnick.
(CR
391,
505,
559).
On
or
about
October
1,
2012,
Lantz
and
Rolnick
telephoned
Ray.
(CR
384,
391,
505,
549-‐550).
They
explained
to
Ray
that
Lantz
had
contracted
to
sell
the
assets
of
SML,
and
they
wanted
a
Texas
lawyer
to
review
some
of
the
documents.
(CR
549).
There
is
a
dispute
in
the
evidence
concerning
whether
Ray
informed
Lantz
and
Rolnick
that
Ray
did
not
feel
qualified
to
review
documents
related
to
an
asset
sale.
Ray
testified
that
he
did
inform
them
of
that
fact
and
indicated
that
he
did
not
want
to
undertake
the
review.
(CR
549,551)
According
to
Ray’s
testimony,
Lantz
and
Rolnick
stated
that
they
wanted
him
involved
in
the
transaction
anyway.
(CR
549).
According
to
Lantz
and
Rolnick,
they
were
not
informed
of
any
limitations
on
Ray’s
ability
to
review
the
documents.
(CR
385,
506).
Ray
also
testified
that
he
informed
Lantz
and
Rolnick
that
he
would
have
another
lawyer,
Paul
Browder,
an
attorney
3
with
Blazier,
Christensen,
Bigelow
&
Virr
(“BCBV”),
review
the
documents-‐-‐testimony
that
Lantz
and
Rolnick
dispute.
(CR
549).
Ray
had
one
more
conversation
with
Rolnick
shortly
after
the
initial
conversation
with
Lantz
and
Rolnick.
Ray
then
received
an
email
from
Rolnick’s
legal
assistant
with
instructions
as
to
what
Rolnick
wanted
Ray
to
do.
(CR
506-‐507,
552).
“Mr.
Rolnick
is
out
of
the
country
this
week,
however,
pursuant
to
your
previous
conversation
with
him,
he
asked
that
I
forward
you
a
copy
of
the
Security
Agreement
and
Promissory
Note
(which
are
attached
to
this
email).
Also
attached
you
will
find
a
copy
of
the
fully
executed
copy
of
the
Agreement
so
you
have
some
understanding
of
the
transaction.
Mr.
Rolnick
would
like
you
to
review
the
Security
Agreement
and
Promissory
Note
and
confirm
that
these
are
acceptable
for
Texas
law,
i.e.
that
they
can
be
recorded
and
that
they
would
enable
us
to
foreclose
in
the
event
of
a
default.”
(CR
424)
Ray
received
the
executed
contract,
draft
security
agreement,
and
draft
promissory
note.
Ray
then
forwarded
those
documents
to
Browder
for
his
review.
(CR
550).
Browder
made
comments
and
raised
questions
with
regard
to
the
documents.
(CR
550).
Ray
then
took
those
comments
and
questions,
incorporated
them
into
an
email,
and
forwarded
them
to
Rolnick.
(CR
550).
Among
the
provisions
of
the
promissory
note
was
a
reference
that
the
security
interest
would
be
recorded
in
Delaware.
The
specific
4
language
in
the
promissory
note
stated
“Holder
may
file
a
Form
UCC-‐1
with
the
Secretary
of
State
of
the
State
of
Delaware
to
perfect
such
lien
of
record.”
(CR
486).
Contrary
to
the
assertion
by
Appellant
in
his
Statement
of
Facts
that
“comments
by
Ray
sent
back
to
Rolnick
in
Florida,
however,
included
one
indicating
the
UCC-‐1
instead
should
be
filed
in
Texas
where
the
assets
at
issue
were
located,”
what
Browder
actually
raised,
and
what
was
passed
on
in
Ray’s
email,
was
a
question.
The
actual
question
that
was
raised
was
as
follows:
“Where
will
the
assets
be
held?
Texas,
right?
Shouldn’t
the
UCC-‐1
be
filed
where
the
assets
are
located?”
Rolnick
never
contacted
Ray
to
resolve
those
questions.
(CR
508,
553)
Rolnick
proceeded
to
close
the
transaction
on
November
1,
2012,
and
Ray
had
no
knowledge
of
or
participation
in
the
drafting
of
the
final
documents
or
the
closing.
(CR
508-‐510,
560).
The
next
time
Ray
had
any
participation
in
the
transaction
at
all
(or
even
knew
that
it
had
closed)
was
when
he
was
contacted
by
Rolnick
with
a
direction
to
record
the
UCC-‐1
in
Texas
approximately
two
months
after
the
transaction
had
closed.
(CR
555-‐556,
560,
562).
Ray
at
first
declined
because
he
did
not
know
procedurally
how
to
do
so.
(CR
562).
Rolnick
prevailed
on
Ray
to
do
so
for
him
since
Ray
was
in
Austin.
5
(CR
562).
Rolnick
sent
the
UCC-‐1
to
Ray,
and
Ray
forwarded
it
to
Browder
for
recordation
at
the
office
of
the
Secretary
of
State.
(CR
558).
Ray
had
no
further
contact
with
Lantz
or
Rolnick
until
over
a
year
later
when
he
was
contacted
about
AOS’s
default.
(CR
560).
Rolnick
contacted
him
about
pursuing
litigation
to
foreclose
on
the
assets.
(CR
560).
Again,
that
was
not
Ray’s
area
of
practice,
and
SML
was
referred
to
Adams
&
Graham
(“A&G”)
to
pursue
the
litigation.
(CR
387).
SML
filed
suit
against
AOS
on
the
debt
and
to
foreclose
on
the
security,
to
the
extent
the
collateral
still
existed.
At
that
time,
AOS’s
parent
company,
MacEyser
Holdings,
filed
for
bankruptcy
protection
in
Delaware.
SML
filed
a
motion
to
lift
stay
in
the
bankruptcy
proceeding.
That
motion
was
denied
on
the
basis
that
SML
had
not
perfected
its
security
interest
by
recording
the
UCC-‐1
in
Delaware.
In
light
of
that
ruling,
Lantz
contacted
Rolnick
and
Ray
concerning
the
issue
of
perfection
of
the
security
interest.
(CR
512).
At
that
time,
Rolnick
was
successful
in
diverting
Lantz’s
attention
from
him
to
Ray.
(CR
512-‐513).
SML
and
Lantz
then
filed
suit
in
Travis
County
District
Court
against
RAR,
BCBV,
and
A&G.
(CR
3).
RAR
immediately
joined
Rolnick
as
a
third-‐party
defendant,
and
plaintiffs
then
amended
their
pleadings
to
add
Rolnick
as
a
defendant.
(CR
17,
137).
In
answer
to
both
RAR’s
third-‐
6
party
petition
and
plaintiffs’
First
Amended
Original
Petition,
Rolnick
filed
unsworn
special
appearances.
(CR
23,
147).
Rolnick’s
special
appearance
was
heard
and
overruled
by
the
trial
court.
(CR
697).
SUMMARY
OF
ARGUMENT
The
requirements
for
filing
a
special
appearance
are
stated
in
Rule
120a,
Texas
Rules
of
Civil
Procedure.
Strict
compliance
with
the
rule
is
required.
Rule
120a
requires
that
the
special
appearance
be
made
by
sworn
motion.
The
special
appearances
filed
by
Rolnick
were
not
sworn,
and
therefore
were
not
in
compliance
with
Rule
120a.
The
trial
court
does
not
commit
error
in
overruling
an
unsworn
special
appearance.
Jurisdiction
of
nonresident
defendants
is
determined
based
on
whether
the
defendant
has
sufficient
minimum
contacts
with
Texas
to
support
jurisdiction
under
the
Texas
Long-‐Arm
Statute.
Those
minimum
contacts
exist
if
the
nonresident
defendant
has
availed
himself
of
the
privilege
of
conducting
activities
in
Texas.
The
contact
with
Texas
must
have
been
purposeful,
and
the
defendant
must
have
sought
some
benefit
from
the
contact.
In
addition,
the
assertion
of
such
7
jurisdiction
must
comport
with
traditional
notions
of
fair
play
and
substantial
justice.
SML’s
business
was
entirely
a
Texas
operation.
All
of
its
business
activity
was
in
Texas,
and
all
of
its
assets
(including
its
real
estate
interests)
were
in
Texas.
When
SML
sold
its
assets,
Rolnick
negotiated
the
contract
and
closed
the
transaction.
He
had
Jason
Ray
review
the
promissory
note
and
security
agreement,
but
all
decisions
about
perfection
of
the
security
interest
were
made
by
Rolnick.
Rolnick
made
the
decision
to
record
the
UCC-‐1
in
Texas,
and
Rolnick
sent
it
to
Ray
with
instructions
to
record
it
in
Texas.
When
SML’s
purchaser
sought
bankruptcy
protection
it
was
discovered
that
Rolnick
had
recorded
the
UCC-‐1
in
the
wrong
state
to
properly
perfect
that
interest.
Since
the
suit
by
SML
and
its
owner
is
over
the
failure
to
properly
perfect
that
security
interest,
Rolnick
has
sufficient
contacts
with
Texas
to
be
subject
to
the
jurisdiction
of
the
Texas
courts.
ARGUMENT
&
AUTHORITIES
Standard
of
Review
Whether
a
trial
court
has
personal
jurisdiction
over
a
defendant
is
a
matter
of
law
and
is
reviewed
de
novo.
BMC
Software
Belgium,
N.V.
v.
8
Marchand,
83
S.W.3d
789,
794
(Tex.
2002).
If
the
trial
court
does
not
issue
findings
of
fact
and
conclusions
of
law,
all
facts
necessary
to
support
the
judgment
and
supported
by
the
evidence
are
implied.
BMC
at
795.
No
Error
In
Denial
of
Unsworn
Special
Appearance
Rule
120a
was
adopted
to
address
the
issue
presented
by
York
v.
State,
73
Tex.
651,
11
S.W.
869
(1889),
aff’d
137
U.S.
15,
11
S.Ct.
869
(1889).
The
court
in
York
held
that
any
appearance,
even
one
to
challenge
service
or
jurisdiction,
constituted
a
general
appearance.
This
resulted
in
there
being
no
direct
way
that
a
nonresident
defendant
could
challenge
the
court’s
jurisdiction
over
that
defendant.
That
continued
to
be
the
law
in
Texas
until
the
Supreme
Court
of
Texas
adopted
Rule
120a
in
1962.
Rule
120a
provided
a
vehicle
for
a
defendant
to
challenge
the
court’s
in
personam
jurisdiction
without
the
challenge
itself
constituting
a
general
appearance.
Rule
120a
provides
specific
requirements
to
which
the
special
appearance
must
conform.
These
requirements
include,
among
others,
that
the
“special
appearance
shall
be
made
by
sworn
motion
filed
prior
to
motion
to
transfer
venue
or
any
other
plea,
pleading,
or
motion….”
9
The
motion
must
be
heard
before
a
motion
to
transfer
venue
or
any
other
plea
or
pleading.
RAR
was
an
original
defendant
in
the
Plaintiffs’
Original
Petition.
(CR
3).
Upon
filing
its
original
answer,
Herbert
Rolnick
was
immediately
added
as
a
third-‐party
defendant
by
RAR.
(CR
17).
Rolnick
filed
a
special
appearance
to
the
third-‐party
petition
filed
by
RAR,
and
the
plaintiffs
then
amended
and
added
Rolnick
as
an
additional
defendant.
(CR
137).
Rolnick
again
filed
a
special
appearance
as
to
the
plaintiff’s
First
Amended
Original
Petition.
(CR
147).
Neither
of
the
special
appearances
filed
by
Rolnick
were
sworn
as
required
by
Rule
120a.
Rolnick
did
file
two
nearly
identical
affidavits
in
conjunction
with
the
special
appearances
he
filed.
However,
in
those
affidavits
Rolnick
swears
to
the
facts
stated
in
the
affidavits
but
does
not
swear
to
the
facts
stated
in
the
special
appearances
he
filed.
(CR
35,
159).
Strict
compliance
with
the
rule
governing
special
appearances
is
required.
Casino
Magic
Corp.
v.
King,
43
S.W.3d
14
(Tex.
App.—Dallas
2001,
pet.
denied).
A
trial
court
does
not
commit
error
in
denying
an
unsworn
special
appearance.
Casino
Magic
Corp
at
18;
Villapando
v.
De
La
Garza,
793
S.W.2d
274,
276
(Tex.
App.—Corpus
Christi
1990,
no
writ);
Prosperous
Maritime
Corp.
v.
Farwah,
189
S.W.3d
389,
392
(Tex.
10
App.—Beaumont
2006,
no
pet.).
When
the
affidavits
attached
to
the
special
appearance
pleadings
do
not
state
that
the
facts
set
out
in
the
pleadings
are
true
and
correct,
but
instead
state
only
that
the
facts
in
the
affidavits
are
true
and
correct,
the
affidavits
do
not
verify
the
special
appearance.
Prosperous
Maritime
at
393-‐394;
Casino
Magic
at
18.
The
courts
have
routinely
upheld
the
denial
of
a
special
appearance
on
the
basis
that
the
nonresident
failed
to
file
a
sworn
motion.
See
Kytel
International
Group,
Inc.
v.
Rent-‐A-‐Center,
Inc.,
132
S.W.3d
717,
719
(Tex.
App.—Dallas
2004,
no
pet.);
Siemens
AG
v.
Houston
Casualty
Company,
127
S.W.3d
436,
439
(Tex.
App.—Dallas
2004,
no
pet.).
Rolnick
did
not
file
a
sworn
motion
as
required
by
Rule
120a.
(CR
23,
147).
While
Rolnick
did
file
affidavits
in
support
of
his
motion,
all
that
the
affidavits
did
was
swear
to
the
facts
stated
in
the
affidavits.
(CR
35,
159).
Rolnick’s
affidavits
did
not
swear
to
the
facts
stated
in
his
special
appearance.
Rolnick’s
special
appearance
was
not
in
compliance
with
the
Rule,
and
therefore
the
trial
court
did
not
commit
any
error
in
denying
the
special
appearance.
11
Rolnick’s
Contacts
Meet
the
“Minimum
Contacts”
Test
for
Jurisdiction
in
Texas
Jurisdiction
over
nonresident
defendants
is
governed
by
the
Texas
Long-‐Arm
Statute,
TEX.
CIV.
PRAC.
&
REM.
CODE
§17.41
et
seq.
The
extent
of
the
jurisdictional
grant
in
the
Texas
Long-‐Arm
Statute
is
to
the
fullest
extent
permitted
by
the
federal
constitutional
requirements
of
due
process.
Moki
Mac
River
Expeditions
v.
Drugg,
221
S.W.3d
569,
575
(Tex.
2007).
A
Texas
court
may
exercise
personal
jurisdiction
over
a
nonresident
defendant
only
if
the
requirements
of
both
the
due
process
clause
of
the
Fourteenth
Amendment
to
the
United
States
Constitution
and
the
Texas
Long-‐Arm
Statute
are
satisfied.
CSR
Ltd.
v.
Link,
925
S.W.2d
591,
594
(Tex.
1996).
The
assertion
of
jurisdiction
over
a
nonresident
is
proper
and
consistent
with
due
process
when
the
nonresident
defendant
has
established
minimum
contacts
with
the
forum
state
and
the
exercise
of
jurisdiction
comports
with
traditional
notions
of
fair
play
and
substantial
justice.
Kelly
v.
Gen.
Interior
Construction,
Inc.,
301
S.W.3d
653
(Tex.
2010).
The
defendant
has
established
minimum
contacts
with
the
forum
state
when
the
defendant
has
purposefully
availed
himself
of
the
privilege
of
conducting
activities
12
within
the
forum
state,
and
has
thus
invoked
the
benefits
and
protections
of
the
forum
state’s
laws.
Retamco
Operating,
Inc.
v.
Republic
Drilling,
278
S.W.3d
333
(Tex.
2009);
Moncrief
Oil
International,
Inc.
v.
OAO
Gazprom,
414
S.W.3d
142
(Tex.
2013).
The
plaintiff
(and
third-‐party
plaintiff)
bears
the
initial
burden
of
pleading
sufficient
allegations
to
bring
the
nonresident
defendant
within
the
provisions
of
the
Texas
long-‐arm
statute.
Moki
Mac
at
574;
BMC
Software
at
793.
Once
the
plaintiff
satisfies
this
burden,
the
burden
shifts
to
the
nonresident
defendant
to
negate
all
bases
for
personal
jurisdiction
alleged
by
the
plaintiff.
Kelly
v.
Gen.
Interior
Constr.,
Inc.,
301
S.W.3d
653,
658
(Tex.
2010).
As
noted
in
Retamco
Operating,
Inc,
a
nonresident’s
contacts
can
give
rise
to
either
specific
jurisdiction
or
general
jurisdiction.
Specific
jurisdiction
exists
when
the
defendant
purposefully
avails
himself
of
conducting
activities
in
the
forum
state,
and
the
cause
of
action
arises
from
or
is
related
to
those
contacts
or
activities.
In
a
specific
jurisdiction
analysis,
the
court
must
focus
on
the
relationship
between
the
defendant,
the
forum,
and
the
litigation.
Moncrief
Oil,
414
S.W.3d
at
150.
There
must
be
a
substantial
connection
between
the
defendant’s
contacts
with
the
forum
and
the
operative
facts
13
of
the
litigation
itself.
Moki
Mac,
221
S.W.3d
at
585.
In
the
specific
jurisdiction
analysis,
the
court
must
focus
on
only
the
defendant’s
contacts
with
the
forum.
The
defendant’s
contacts
must
be
purposeful
and
not
random,
isolated,
or
fortuitous,
and
the
defendant
must
seek
some
benefit,
advantage,
or
profit
by
availing
himself
of
the
jurisdiction.
Michiana
Easy
Livin’
Country,
Inc.
v.
Holten,
168
S.W.3d
777,
785
(Tex.
2005).
The
defendant’s
activities,
whether
they
consist
of
direct
acts
within
Texas
or
conduct
outside
Texas,
must
justify
a
conclusion
that
the
defendant
could
reasonably
anticipate
being
haled
into
a
Texas
court.
Am.
Type
Culture
Collection,
Inc.
v.
Coleman,
83
S.W.3d
801,
806
(Tex.
2002).
Jurisdiction
is
premised
on
the
notions
of
implied
consent
that,
by
invoking
the
benefits
and
protections
of
a
forum’s
laws,
the
nonresident
consents
to
suit
there.
Michiana
at
785.
It
is
the
quality
and
nature
of
the
defendant’s
contacts
with
the
forum
state,
rather
than
their
number,
that
are
important
in
analyzing
minimum
contacts.
Am.
Type
Culture
Collection
at
806.
Specific
jurisdiction
is
established
if
the
defendant’s
alleged
liability
arises
out
of
or
is
related
to
an
activity
conducted
within
the
forum
state.
Moki
Mac
at
575-‐576.
When
specific
jurisdiction
is
14
asserted,
the
minimum-‐contacts
analysis
focuses
on
the
relationship
among
the
defendant,
the
forum,
and
the
litigation.
Moncreif
Oil
at
150;
Guardian
Royal
Exch.
Assurance,
Ltd
v.
English
China
Clays,
P.L.C.,
815
S.W.2d
223,
228
(Tex.
1991).
The
focus
is
on
the
defendant’s
conduct
and
connections
with
the
forum
state
in
relation
to
the
alleged
liability.
Michiana
at
788-‐790.
Analysis
Of
The
Jurisdictional
Facts
Rolnick
was
the
person
in
charge
of
negotiating
and
closing
the
sale
of
SML’s
assets.
(CR
391,
392).
All
of
those
assets
were
located
in
Texas,
including
SML’s
real
property
interests.
(CR
390).
Ray’s
participation
in
the
transaction
was
minimal—he
was
asked
to
review
a
note
and
security
agreement
to
see
if
they
could
be
recorded
in
Texas
and
if
SML
would
be
able
to
foreclose
upon
default.
Rolnick
directed
what
Ray
was
to
do,
and
the
limitations
on
Ray’s
engagement.
Ray
felt
that
he
had
been
engaged
by
Rolnick.
(CR
556).
After
forwarding
comments
and
questions
to
Rolnick,
Ray
was
not
contacted
again
by
Rolnick
to
answer
any
of
the
questions
that
had
been
raised
about
the
documents.
(CR
555-‐556).
Instead,
Rolnick
made
all
of
the
decisions
about
the
sale
of
the
Texas
assets
and
closed
the
15
transaction
without
Ray
even
being
informed
that
the
transaction
had
closed.
Approximately
two
months
after
closing,
Rolnick
contacted
Ray
and
requested
that
Ray
record
the
UCC-‐1
for
Rolnick
in
Texas.
(CR
555-‐
556).
The
UCC-‐1
had
been
drafted
or
approved
by
Rolnick,
and
Ray
had
never
seen
it.
At
first
resistant,
Ray
eventually
agreed
to
record
the
document
for
Rolnick
with
the
Secretary
of
State.
(CR
561).
The
decision
to
record
it
in
Texas
was
Rolnick’s
decision,
and
Ray
was
merely
performing
a
favor
upon
Rolnick’s
request.
(CR
393,
562).
It
is
no
different
than
if
Rolnick
had
himself
recorded
the
UCC-‐l
at
the
Secretary
of
State.
None
of
this
analysis
focuses
on
the
conduct
of
anyone
but
Rolnick.
He
negotiated
the
contract
for
the
sale
of
Texas
assets.
He
negotiated
the
sale
of
Texas
real
estate
interests.
He
decided
how
to
obtain
the
security
interest
in
the
Texas
assets.
And
most
importantly,
Rolnick
directed
the
recordation
of
the
UCC-‐1
in
Texas.
The
plaintiffs’
claims
here
are
focused
on
their
claimed
losses
from
the
loss
of
those
Texas
assets.
Their
complaints
relate
to
their
claimed
security
interests
in
those
assets,
and
their
particular
complaint
is
that
the
recordation
of
that
security
interest
in
Texas
was
negligence.
16
Rolnick
negotiated
and
closed
the
transaction,
and
he
made
all
of
the
decisions
related
to
obtaining
and
protecting
the
plaintiffs’
security
interests.
Most
specifically,
Rolnick
is
the
one
who
had
the
UCC-‐1
recorded
in
Texas.
These
are
not
fortuitous
contacts
with
Texas.
Rolnick
was
certainly
aware
where
all
of
the
assets,
including
the
real
property,
were
located
when
he
undertook
the
representation.
Rolnick
made
the
conscious
decision
to
record
the
UCC-‐1
in
Texas,
and
he
is
the
one
who
sent
it
to
Texas
for
filing.
That
was
certainly
a
purposeful
contact,
and
was
not
random,
fortuitous,
or
attenuated.
These
are
only
Rolnick’s
contacts
with
Texas,
and
this
analysis
does
not
consider
any
other
person’s
contacts
or
activities.
Rolnick
certainly
sought
to
benefit
from
these
contacts.
Not
only
had
he
represented
Lantz
and
his
entities
for
a
number
of
years,
Rolnick
made
a
fee
of
over
$40,000.00
for
handling
this
Texas
sale.
To
say
that
Rolnick
did
not
seek
or
obtain
any
benefit
from
his
contacts
with
Texas
(including
the
recordation
of
the
UCC-‐1)
is
to
turn
a
blind
eye
to
the
realities
of
the
practice
of
law.
These
contacts
are
directly
related
to
the
pending
litigation.
The
plaintiffs’
claimed
damages
are
the
loss
of
the
Texas
assets
that
were
to
17
serve
as
security.
The
specific
act
about
which
the
plaintiffs’
complain
is
the
recording
of
the
UCC-‐1
in
Texas,
an
act
specifically
directed
by
Rolnick.
Jurisdiction
of
Rolnick
is
obvious
based
on
his
conduct
and
connections
with
Texas
in
relation
to
this
alleged
liability.
Appellant
seems
to
argue
that
the
conventional
analysis
of
personal
jurisdiction
that
applies
to
all
other
defendants
does
not
apply
to
Rolnick
solely
because
he
is
a
lawyer.
According
to
the
argument
by
Appellant,
there
is
a
special
“Lawyer
Rule.”
Under
that
“rule”
as
advanced
by
Appellant,
as
long
as
the
nonresident
lawyer
sits
in
his
office
in
another
State,
he
simply
cannot
be
subject
to
jurisdiction
in
Texas
no
matter
how
much
he
has
contact
with
Texas
and
no
matter
how
much
those
contacts
are
the
source
of
the
Texas
litigation.
That
is
not
and
cannot
be
the
law.
Lawyers
do
not
get
a
free
pass.
The
cases
cited
by
Appellant
for
his
odd
argument
are
all
distinguishable
on
their
facts.
In
fact,
each
of
those
cases
analyzes
the
jurisdictional
issues
just
as
Appellee
has
done
in
this
brief.
In
those
cases,
the
court
has
analyzed
the
quality
and
nature
of
the
lawyer’s
contacts
with
Texas.
In
each
of
those
cases,
the
court
has
analyzed
the
connections
with
Texas
in
relation
to
the
alleged
liability.
Those
courts
did
not
decide
that
simply
because
the
lawyer
18
was
not
physically
in
Texas
he
could
not
be
subject
to
jurisdiction
in
Texas.
In
Abilene
Diagnostic
Clinic,
PLLC
v.
Paley,
Rothman,
Goldstein,
Rosenberg,
Eig
&
Cooper,
Chartered,
364
S.W.3d
359
(Tex.
App.—
Eastland
2012,
no
pet.),
a
Texas
clinic
sued
a
Maryland
law
firm
for
alleged
malpractice
in
the
preparation
of
a
defined
benefit
plan.
The
claim
of
specific
jurisdiction
in
that
case
was
that
all
of
the
defendants
“purposefully
availed
themselves
of
the
benefits
of
Texas
law
by
doing
business
with
a
Texas
entity.”
In
sum,
what
the
defendant
had
done
is
prepare
several
defined
benefit
plans
in
Maryland
and
send
them
to
the
plaintiff
in
Texas.
As
the
court
noted,
this
is
the
“direct-‐a-‐tort”
jurisdictional
theory
that
was
rejected
in
Michiana.
The
court
held
that
to
determine
specific
jurisdiction,
the
court
had
to
focus
on
whether
there
was
a
substantial
connection
between
the
defendant’s
purposeful
contacts
with
the
forum
state
and
the
operative
facts
of
the
litigation.
The
court
noted
that
Texas
authority
had
focused
on
where
the
legal
work
was
performed,
but
the
jurisdictional
analysis
on
which
the
court
determined
the
case
was
the
traditional
analysis
of
specific
jurisdiction.
In
Ahrens
&
DeAngeli
v.
Flinn,
318
S.W.3d
474
(Tex.
App.—Dallas
2010,
pet.
denied),
a
Washington
and
Idaho
law
firm
was
sued,
along
19
with
others,
for
promoting
an
abusive
tax
shelter.
The
law
firm
had
provided
representation
to
one
of
the
other
defendants
in
the
developing
and
marketing
of
the
tax
shelter.
However,
the
legal
work
had
all
been
performed
in
Washington
or
Idaho,
and
only
communicated
to
a
codefendant
in
Texas.
The
court
utilized
the
traditional
analysis
in
determining
that
there
were
not
sufficient
contacts
with
Texas
to
support
personal
jurisdiction.
Performing
legal
work
in
one
state
and
merely
communicating
with
persons
in
another
state
is
not
enough
in
itself
to
support
jurisdiction.
However,
in
the
present
case,
Rolnick
actually
took
action
in
Texas
with
regard
to
perfecting
the
security
interest
in
the
collateral,
and
that
is
at
the
core
of
plaintiffs’
claims
in
this
case.
Proskauer
Rose
LLP
v.
Pelican
Trading,
Inc.,
2009
WL
242993
(Tex.
App.—Houston
[14th
Dist.]
2009,
no
pet.)
also
involved
an
abusive
tax
shelter.
The
plaintiffs
had
been
introduced
to
the
concept
of
the
tax
shelter
by
their
accounting
firm.
The
accounting
firm
had
recommended
that
the
plaintiffs
use
Proskauer
Rose
to
prepare
and
deliver
an
opinion
letter
on
the
proposed
tax
shelter.
Proskauer
Rose
prepared
drafts
of
the
opinion
letter,
communicated
with
the
plaintiffs
(Texas
residents)
and
ultimately
prepared
the
opinion
letter
and
sent
it
20
to
the
Texas
residents.
However,
all
of
Proskauer
Rose’s
work
was
in
New
York.
Again,
the
court
conducted
a
traditional
specific
jurisdictional
analysis.
Routine
correspondence
from
the
out-‐of-‐state
lawyer
is
not
the
kind
of
purposeful
contacts
that
support
personal
jurisdiction,
and
the
sending
of
the
opinion
letter
to
Texas
could
not
support
jurisdiction
as
“directing
a
tort
to
Texas”
under
the
holding
in
Michiana.
The
present
case
differs
markedly
from
the
facts
in
Proskauer
Rose.
In
the
present
case,
Rolnick’s
filing
of
the
UCC-‐1
in
Texas
is
the
basis
on
which
the
plaintiffs
claim
liability.
Markette
v.
X-‐Ray
X-‐Press
Corp.,
240
S.W.3d
464
(Tex.
App.—
Houston
[14th
Dist.]
2007,
no
pet.)
involved
an
Indiana
attorney
representing
a
Texas
resident
in
an
Indiana
lawsuit.
The
client
had
challenged
the
jurisdiction
of
the
Indiana
court,
and
that
challenge
had
been
denied.
The
attorney
wrote
the
Texas
client
and
reviewed
the
three
alternatives
available
to
it,
one
of
which
was
to
allow
a
default
judgment
in
Indiana
and
challenge
the
Indiana
court’s
jurisdiction
when
the
plaintiff
in
the
Indiana
case
sought
to
enforce
the
judgment
in
Texas.
The
client
adopted
that
strategy,
and
it
ultimately
proved
unsuccessful.
When
the
client
sued
the
Indiana
lawyer
for
malpractice
in
Texas,
the
court
again
applied
a
traditional
specific
jurisdiction
analysis
and
21
determined
that
it
had
to
focus
on
the
connection
between
the
contacts
and
the
litigation,
and
it
rejected
the
“direct-‐a-‐tort”
theory.
The
mere
sending
of
a
letter
from
one
jurisdiction
to
another,
as
in
Proskauer,
differs
markedly
from
the
filing
of
a
legal
document
such
as
a
UCC-‐1,
especially
when
the
filing
of
that
UCC-‐1
is
at
the
core
of
the
litigation.
Under
the
controlling
decisions
by
the
Supreme
Court
of
Texas
and
the
evidence
in
this
record,
Rolnick
had
sufficient
minimum
contacts
with
Texas
to
subject
him
to
jurisdiction
in
this
case.
Accordingly,
the
District
Court
of
Travis
County
has
personal
jurisdiction
of
him,
and
the
trial
court
correctly
decided
that
the
minimum-‐contacts
requirements
of
the
Texas
Long-‐Arm
statute
had
been
satisfied.
Fair
Play
and
Substantial
Justice
Even
if
a
defendant
has
the
minimum
contacts
with
Texas
to
justify
the
assertion
of
jurisdiction
under
the
long-‐arm
statute,
the
court
cannot
exercise
jurisdiction
if
doing
so
would
offend
traditional
notions
of
fair
play
and
substantial
justice.
Burger
King
Corp.
v.
Rudzewicz,
471
U.S.
462,
477
(1985).
Only
in
“rare
cases”
will
the
exercise
of
jurisdiction
not
comport
with
fair
play
and
substantial
justice
when
the
nonresident
defendant
has
minimum
contacts
with
the
forum
state.
22
Burger
King
at
471.
In
determining
whether
the
assertion
of
jurisdiction
comports
with
fair
play
and
substantial
justice,
the
court
considers
(1)
the
burden
on
the
defendant;
(2)
the
interests
of
the
forum
state
in
adjudicating
the
dispute;
(3)
the
plaintiff’s
interest
in
obtaining
convenient
and
effective
relief;
(4)
the
interstate
judicial
system’s
interest
in
obtaining
the
most
efficient
resolution
of
controversies;
and
(5)
the
shared
interest
of
the
several
States
in
furthering
fundamental
substantive
social
policies.
Royal
Guardian
at
232.
The
burden
on
this
particular
defendant
is
certainly
no
greater
than
that
on
any
nonresident
defendant
who
must
defend
himself
in
another
jurisdiction.
However,
defending
himself
in
Texas
would
not
put
a
significantly
higher
burden
on
Rolnick
than
defending
himself
in
Florida,
although
he
would
probably
have
to
travel
to
Texas
for
the
trial.
While
the
initial
discovery
in
this
case
was
limited
to
the
issue
of
jurisdiction,
Rolnick
has
already
been
deposed
and
it
may
not
be
necessary
to
depose
him
again.
Therefore,
the
added
burden
of
defending
himself
in
Texas
would
be
minimal,
especially
when
compared
to
the
additional
burden
on
the
plaintiff
and
other
defendants
in
pursuing
Rolnick
in
Florida
in
a
separate
case.
23
The
interests
of
Texas
in
adjudicating
the
dispute
certainly
outweigh
the
interests
of
any
other
state
in
adjudicating
this
dispute.
This
dispute
involves
interests
in
Texas
assets,
including
real
property.
The
dispute
involves
the
application
of
Texas
law,
and
the
dispute
involves
the
adjudication
of
the
liability
of
three
Texas
entities.
Since
Rolnick
is
the
one
largely
(if
not
solely)
responsible
for
any
failure
to
comply
with
the
standard
of
care,
Texas
has
a
significant
interest
in
adjudicating
the
liability
of
all
the
parties
in
one
suit.
The
plaintiff
can
only
get
jurisdiction
of
RAR,
BCBV,
and
A&G
in
Texas.
While
the
plaintiffs
are
Florida
residents,
the
plaintiffs
must
litigate
their
claim
against
the
Texas
defendants
in
Texas.
It
is
certainly
more
convenient
for
the
plaintiffs
to
litigate
one
case
against
all
of
the
defendants
in
Texas
than
to
litigate
one
case
in
Texas
against
three
Texas
defendants
and
one
case
in
Florida
against
one
Florida
defendant.
Additionally,
RAR
is
the
party
who
initially
joined
Rolnick
in
this
litigation.
It
is
certainly
more
convenient
and
effective
for
RAR
to
litigate
one
case
in
Texas
than
to
have
to
defend
the
case
in
Texas,
and
if
an
adverse
result
is
reached,
pursue
a
separate
case
against
Rolnick
in
Florida.
24
For
the
interstate
judicial
system,
the
most
efficient
resolution
of
this
dispute
is
to
dispose
of
it
in
one
trial.
Since
the
Texas
defendants
are
only
amenable
to
jurisdiction
in
Texas,
the
most
efficient
resolution
is
to
try
one
case
in
Texas
against
all
defendants,
including
Rolnick,
rather
than
try
one
case
in
Texas
and
potentially
multiple
cases
in
Florida.
It
is
the
rare
case
indeed
when
asserting
jurisdiction
over
a
nonresident
offends
the
traditional
notions
of
fair
play
and
substantial
justice
if
the
defendant
has
sufficient
minimum
contacts
to
support
jurisdiction.
This
is
not
that
rare
case.
Rolnick
has
sufficient
minimum
contacts
with
Texas
to
support
the
assertion
of
jurisdiction,
and
the
assertion
of
that
jurisdiction
does
not
offend
traditional
notions
of
fair
play
and
substantial
justice.
CONCLUSION
The
transaction
out
of
which
this
case
grows
was
a
Texas
transaction
involving
Texas
assets
and
Texas
real
property
interests.
Rolnick
was
the
person
who
negotiated
the
contract,
prepared
all
of
the
documents,
closed
the
transaction,
and
determined
to
record
the
security
interest
in
Texas.
Rolnick’s
contacts
with
Texas,
especially
in
the
all-‐important
recording
of
the
UCC-‐1
in
Texas,
were
not
fortuitous
25
but
rather
were
deliberate.
If
recording
the
UCC-‐1
in
Texas,
as
Rolnick
did,
is
the
basis
of
liability,
then
Rolnick
certainly
had
minimum
contacts
with
Texas.
If
the
plaintiffs
are
going
to
assert
that
there
was
negligence
in
the
way
the
security
interest
was
perfected
by
filing
in
Texas,
then
Rolnick
needs
to
answer
for
that
act.
It
is
only
fair
and
just
that
he
be
a
party
to
this
proceeding.
PRAYER
Wherefore,
Appellee
Riggs,
Aleshire
&
Ray
prays
that
the
court
affirm
the
order
of
the
trial
court
denying
Rolnick’s
special
appearance.
KIDD LAW FIRM
819 West 11th Street
Austin, TX 78701
512-330-1709 (fax)
/s/Scott R. Kidd
Scott R. Kidd
State Bar No. 11385500
512-330-1713
scott@kiddlawaustin.com
Scott V. Kidd
State Bar No. 24065556
512-542-9895
svk@kiddlawaustin.com
Certificate of Compliance
This brief complies with the type-volume limitations of Texas Rule of
Appellate Procedure 9.4. This brief was prepared using Microsoft Word for
MAC, and exlusive of the exempted portions listed in Rule 9.4 contains
5157 words.
/s/Scott R. Kidd
26
Certificate of Service
A copy of this brief has been served on Ruth Malinas, J. Hampton
Skelton, Michael Johnson, and Robert Valdez through the electronic filing
system this 29th day of July, 2015.
/s/Scott R. Kidd
27