Herbert Rolnick v. Sight's My Line, Inc., a Florida Corporation Stewart Lantz Riggs, Aleshire & Ray Blazier, Christensen, Bigelow & Vir, P.C. And Adams & Graham
03-15-00335-CV
| Tex. App. | Sep 11, 2015Background
- Appellant Herbert Rolnick (Florida lawyer) sought a special appearance to dismiss Texas claims for lack of personal jurisdiction; Texas plaintiffs/respondents include Sight’s My Line, Inc. (SML) and Stewart Lantz.
- Rolnick represented SML and Lantz from Florida in the sale of SML’s Texas assets; his work and communications occurred in Florida; Texas counsel Ray handled Texas-law matters.
- Trial court denied Rolnick’s special appearance; Rolnick appeals and filed this reply brief urging reversal.
- Appellees (SML, Riggs, Adams) argue waiver (unsworn special appearance) and assert Rolnick had sufficient Texas contacts (communications, knowledge of Texas assets, direction to file UCC-1, agency) to establish specific jurisdiction.
- Rolnick’s reply contends appellees misapply precedent, ignore Walden v. Fiore, and that only defendant-created contacts with the forum state count; he urges the denial should be reversed and claims dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held (argument by Rolnick / relief sought) |
|---|---|---|---|
| Waiver from unsworn special appearance | Special appearance lacked verification so it was a general appearance (waiver). | Dawson-Austin and Exito control; an unverified special appearance does not waive jurisdictional challenge and defects can be cured; no trial objection to verification. | Waiver argument is meritless; trial court erred in relying on Casino Magic; reverse denial. |
| Minimum-contacts (specific jurisdiction) | Rolnick’s communications, knowledge that assets were in Texas, negotiations, and direction to Texas counsel create sufficient contacts. | Walden requires defendant-created contacts with the forum state itself; Rolnick’s contacts were in Florida on behalf of Florida client; communications with Texas counsel are not defendant’s forum contacts. | Appellees’ minimum-contacts analysis is flawed; no constitutionally sufficient contacts—dismiss for lack of jurisdiction. |
| Effects / directed-tort theory | The effects of Rolnick’s alleged malpractice were felt in Texas (loss of Texas assets), so jurisdiction lies. | Walden and Michiana reject relying on plaintiff’s forum injury alone; effects must connect defendant to forum meaningfully (e.g., intentional act aimed at forum). | Effects/‘‘directed-a-tort’’ theory cannot sustain jurisdiction here. |
| Agency theory (attributing Texas contacts of co-counsel) | Ray and BCBV were agents of Rolnick, so their Texas contacts are his. | No evidence of an agency/principal relationship; both were counsel for same client; Ray was retained by client and billed client, not Rolnick. | Agency theory is unsupported; cannot attribute Texas contacts to Rolnick. |
Key Cases Cited
- Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998) (an unverified special appearance does not constitute a general appearance and Rule 120a permits curing defects)
- Exito Electronics Co. v. Trejo, 42 S.W.3d 302 (Tex. 2004) (defects in verification go to the merits, not automatic waiver; trial record must be reviewed on appeal)
- Walden v. Fiore, 134 S. Ct. 1115 (U.S. 2014) (specific-jurisdiction inquiry focuses on defendant’s own contacts with the forum; plaintiff’s forum connections alone cannot create jurisdiction)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (U.S. 1985) (minimum-contacts must arise from defendant’s purposeful availment and relate to the litigation)
- Calder v. Jones, 465 U.S. 783 (U.S. 1984) (effects test explained—defendant’s conduct must be aimed at the forum and cause effects there)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (purposeful availment requires more than isolated sales; sustained contacts or targeting the forum are required)
- Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009) (taking Texas real property can create continuing, purposeful contacts with Texas)
- Casino Magic Corp. v. King, 43 S.W.3d 148 (Tex. App.—Dallas 2001) (court held an unsworn special appearance was a general appearance) (discussed and criticized in Rolnick’s reply)
- Rowland & Roland, P.C. v. Texas Employers Indem. Co., 973 S.W.2d 432 (Tex. App.—Austin 1998) (agency/attribution analysis in attorney-context discussed)