Chana Horowitz v. Francis Berger
2012 Tex. App. LEXIS 4936
| Tex. App. | 2012Background
- Horowitz, an Israeli citizen, resides in Israel and worked as an independent contractor for Founders Israel; most plaintiffs are Israeli and reside outside the United States.
- Plaintiffs allege Horowitz induced purchase of Texas real estate via representations made in Israel; suit concerns the Fairways Project in League City, Texas.
- Horowitz filed a single document with an unverified special appearance, a general denial, and a forum non conveniens motion; she later amended with verification.
- Trial court denied Horowitz’s special appearance and made findings of fact supporting personal jurisdiction.
- The appellate court reverses, finding no sufficient Texas contacts to support specific jurisdiction and remands to sever and dismiss Horowitz from the suit for lack of personal jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had specific jurisdiction over Horowitz. | Horowitz lacked purposeful availing of Texas and any contact was coercive. | Plaintiffs’ claims arise from Horowitz’s activities in Texas through documents and arbitration matters. | No; specific jurisdiction is not supported. |
| Whether Horowitz waived her special appearance by prior conduct. | Horowitz’s nonverified filings and discovery activities waive the special appearance. | Rule 120a allows cure and amendment; waiver did not occur. | No waiver; amendment cured the defect. |
| Whether discovery-related actions or other pleadings affected the waiver or jurisdiction analysis. | Discovery requests and related motions impact jurisdictional challenges. | Discovery and discovery-related actions do not constitute waivers of special appearances. | Discovery actions did not waive or defeat the special appearance. |
Key Cases Cited
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (Texas long-arm reaches as far as due process allows; minimum contacts required)
- Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005) (minimum contacts and purposeful availment standards; forum contacts focus on defendant’s actions)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (purposeful direction toward residents of another state; proper contacts may be outside physical presence)
- Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 338 (Tex. 2009) (assignment of Texas real property interests can create contacts for jurisdiction)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (distinguishes general vs. specific jurisdiction; contacts must relate to litigation)
- Peredo v. M. Holland Co., 310 S.W.3d 468 (Tex.App.-Houston [14th Dist.] 2010) (minimum-contacts requirement not met; severance/dismissal appropriate)
- Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998) (amendment of pleadings and timing of amendments; liberal construction of rules)