Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/9/2015 11:24:41 PM JEFFREY D. KYLE Clerk NO. 03-15-00335-CV THIRD COURT OF APPEALS 7/9/2015 11:24:41 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00335-CV *1 ACCEPTED [6008822] CLERK I N THE T HIRD C OURT OF A PPEALS A USTIN , T EXAS
H ERBERT R OLNICK ,
Appellant v.
S IGHT ’ S M Y L INE , I NC . A F LORIDA C ORPORATION ; S TEWART L ANTZ ; R IGGS ,
A LESHIRE & R AY ; B LAZIER , C HRISTENSEN , B IGELOW & V IRR ; AND A DAMS &
G RAHAM ,
Appellees Interlocutory Appeal from the 200 th Judicial District Court in Travis County, Texas, The Honorable Tim Sulak, Presiding APPELLANT’S BRIEF R UTH G. M ALINAS Texas Bar No. 08399350 T IM T. G RIESENBECK , J R . Texas Bar No. 08454450 S COTT M. N OEL Texas Bar No. 00797158 P LUNKETT & G RIESENBECK , I NC . Catholic Life Building, Suite 900 1635 N.E. Loop 410 San Antonio, Texas 78209 (210) 734-7092 (telephone) (210) 734-0379 (facsimile) rmalinas@pg-law.com A TTORNEYS FOR A PPELLANT H ERBERT R OLNICK APPELLANT REQUESTS ORAL ARGUMENT *2
IDENTITY OF PARTIES AND COUNSEL A PPELLATE AND T RIAL C OUNSEL A PPELLANT FOR A PPELLANT
Herbert Rolnick Ruth G. Malinas (Lead Appellate)
Texas Bar No. 08399350 Tim T. Griesenbeck, Jr. (Trial) Texas Bar No. 08454450 Scott M. Noel (Trial) Texas Bar No. 00797158 Plunkett & Griesenbeck, Inc. Catholic Life Building, Suite 900 1635 N.E. Loop 410 San Antonio, Texas 78209 RMalinas@pg-law.com TGriesenbeck@pg-law.com SNoel@pg-law.com A PPELLATE AND T RIAL C OUNSEL A PPELLEES /P LAINTIFFS FOR A PPELLEES /P LAINTIFFS
Sight’s My Line, Inc., a Florida Brandon Duane Gleason
Corporation Texas Bar No. 24038679 J. Hampton Skelton Stewart Lantz Texas Bar No. 18457700
Skelton & Woody 248 Addie Roy Road, Suite B-302 Austin, TX 78746 hskelton@skeltonwoody.com bgleason@skeltonwoody.com Craig S. Hilliard (Pro Hace Vice in Trial Court)
Stark & Stark P.O. Box 5315 Princeton, NJ 08543-2315 chilliard@stark-stark.com i
A PPELLATE AND T RIAL C OUNSEL A PPELLEES /D EFENDANTS FOR A PPELLEES /D EFENDANTS
Riggs, Aleshire & Ray Scott R. Kidd
Texas Bar No. 11385500 Scott V. Kidd Texas Bar No. 24065556 Kidd Law Firm 819 W. 11 th Street Austin, TX 78701 scott@kiddlawaustin.com svk@kiddlawaustin.com Blazier, Christensen, Bigelow & Michael B. Johnson
Virr Texas Bar No. 24029639 Salvador Davila Texas Bar No. 24065119 Thompson, Coe, Cousins & Irons, LLP
701 Brazos, Suite 1500 Austin, TX 78701 mjohnson@thompsoncoe.com sdavila@thompsoncoe.com Adams & Graham Robert E. Valdez
Texas Bar No. 20428100 Jose “JJ” Trevino, Jr.
Texas Bar No. 24051446 Valdez, Jackson & Trevino, PC 1826 North Loop 1604 West, Suite 275
San Antonio, TX 78248 revaldez@vjtlawfirm.com jtrevino@vjtlawfirm.com ii
TABLE OF CONTENTS
Page IDENTITY OF PARTIES AND COUNSEL ............................................... i
TABLE OF CONTENTS ......................................................................... iii
TABLE OF AUTHORITIES ..................................................................... iv
STATEMENT OF THE CASE ................................................................. vi
STATEMENT REGARDING ORAL ARGUMENT ................................ vii
ISSUES PRESENTED .......................................................................... viii
STATEMENT OF FACTS ......................................................................... 1
I. UNDERLYING FACTS .................................................................... 1
II. PROCEDURAL HISTORY ............................................................... 5
SUMMARY OF THE ARGUMENT .......................................................... 5
ARGUMENT AND AUTHORITIES ......................................................... 7
I. Standard of Review .......................................................................... 7
II. Burdens of Proof ............................................................................... 9
III. The Trial Court Erred In Denying Rolnick’s Special
Appearance ..................................................................................... 10 A. General Principles Governing Personal Jurisdiction over a Nonresident ........................................... 10 B. Rolnick Lacks “Minimum Contacts” with Texas .................. 12 C. The Evidence Is Legally Insufficient to Support Specific Jurisdiction over Rolnick in This Case ................... 15 D. Even If Rolnick had the Requisite Minimum Contacts, Exercising Personal Jurisdiction over Him Would Offend Traditional Notions of Fair Play and Substantial Justice ................................................ 26 IV. Conclusion and Prayer ................................................................... 27
CERTIFICATE OF COMPLIANCE ........................................................ 28
CERTIFICATE OF SERVICE ................................................................. 29
APPENDIX
iii *5 TABLE OF AUTHORITIES Page CASES
Abilene Diagnostic Clinic, PLLC v. Paley, Rothman, Goldstein,
Rosenburg, Eig & Cooper, Chartered, 364 S.W.3d 359 (Tex. App.—Eastland 2012 no pet.) .............................................................. 17 Ahrens & De Angeli, P.L.C. v. Flinn, 318 S.W.3d 474 (Tex.
App.—Dallas 2010, pet. denied) .......................................................... 17 Am. Type Culture Collection, Inc. v. Coleman,
83 S.W.3d 801 (Tex. 2002) .............................................................. 11,12 Asahi Metal Indus. Co. v. Superior Court,
480 U.S. 102 (1987) .............................................................................. 16 Bergenholtz v. Cannata,
200 S.W.3d 287 (Tex.App.—Dallas 2006, no pet.) ............................... 24 BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002) ........................................................... 7, 8, 12 Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) ........................................................................ 11, 12 City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .................................................................. 8 Croucher v. Croucher,
660 S.W.2d 55 (Tex. 1983) ..................................................................... 9 CSR Ltd.,
925 S.W.2d 591 (Tex. 1996) ............................................................... 105 Curocom Energy, LLC v. Young-Sub Shim,
416 S.W.3d 893 (Tex.App.—Houston [1st ........................................... 22 Daimler AG v. Bauman,
___ U.S. ___, 134 S. Ct. 746 (2014) ...................................................... 15 Goodyear Dunlop Tires Operations, S.A. v. Brown,
___ U.S. ___, 131 S. Ct. 2846 (2011) .................................................... 15 Gordon & Doner, P.A. v. Joros,
287 S.W.3d 325 (Tex.App.—Fort Worth 2009, no pet.) ................. 23, 25 Guardian Royal Exch. Assur., Ltd. v. English China Clays,
P.L.C.,
815 S.W.2d 223 (Tex. 1991) ..................................................... 12, 13, 16 Hanson v. Denckla,
357 U.S. 235 (1958) .............................................................................. 11 iv
Horowitz v. Berger,
377 S.W.3d 115 (Tex.App.—Houston [14th dist.] 2012, no pet.) ....................................................................................................... 22 Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) ....................... 13 Kelly v. Gen’l Interior Constr., Inc.,
301 S.W.3d 653 (Tex. 2010) ............................................................. 9, 10 Markette v. X-Ray X-Press Corp.,
240 S.W.3d 464 (Tex. App.—Houston [14th dist.] 2007, no pet.) ....................................................................................................... 17 Proskauer Rose, LLP v. Pelican Trading, Inc., No. 14-08-00283-
CV, 2009 WL 242993, at *4 (Tex. App.—Houston [14th dist.] Feb. 3, 2009, no pet.) (mem. op.) .......................................................... 17 Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333 (Tex. 2009) ............................................................. 9, 21 Scott v. Huey L. Cheramie, Inc.,
833 S.W.2d 240 (Tex. App.—Houston [14th Dist.] 1992, no writ) ........................................................................................................ 9 Siskind v. Villa Found. For Educ., Inc.,
642 S.W.2d 434 (Tex. 1982) ................................................................... 9 Walden v. Fiore,
134 S. Ct. 1115 (2014) .................................................................. passim World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980) .............................................................................. 12 STATUTES
Tex. Civ. Prac. & Rem. Code § 51.014(7) .................................................. 8
RULES
Tex. R. App. P. 28.1(c) ............................................................................... 8
Tex. R. App. P. 9.4 ................................................................................... 28
CONSTITUTIONAL PROVISIONS
Tex. Const. art. I, §19 .............................................................................. 11
U.S. Const. amend. XIV, §1 ..................................................................... 11
OTHER AUTHORITIES
Robert W. Calvert, “No Evidence” and “Insufficient Evidence”
Points of Error, 38 Tex. L. Rev. 361, 362-363 (1960) ................................ 8
v *7 STATEMENT OF THE CASE Nature of the Case: This interlocutory appeal arises from
legal malpractice claims appellees Sight’s My Line, Inc. and Stewart Lantz brought in Texas against three Texas law firms and appellant Herbert Rolnick, a Florida lawyer. Rolnick timely filed a special appearance to challenge the trial court’s exercise of personal jurisdiction over him. SML, Lantz and the Texas law-firm defendants opposed Rolnick’s special appearance.
Trial Court: 200th Judicial District Court, Travis
County, Texas, the Honorable Tim Sulak presiding.
Trial Court Disposition: The trial court denied appellant
Rolnick’s special appearance.
vi *8 STATEMENT REGARDING ORAL ARGUMENT Oral argument would greatly assist the court in this case, because new opinions from the United States Supreme Court have not yet been
applied by Texas Courts under facts similar to those present in the
instant case. Moreover, oral argument will give the Court the opportunity
to question the parties regarding the facts and applicable law. Because
personal jurisdiction is a fact-intensive inquiry, appellant respectfully
requests oral argument in this case.
vii
ISSUE PRESENTED
This case presents the following issue and all fairly included subsidiary issues:
Did the trial court err in denying Rolnick’s special appearance?
viii *10 STATEMENT OF FACTS [1] I. UNDERLYING FACTS
Appellee Stewart Lantz resides in Coral Springs, Florida and is the sole shareholder of appellee Sight’s My Line, Inc. (“SML”), a Florida
corporation. CR:137. SML owned and operated several retail eyeglass
stores in Texas. CR:139. Lantz decided to sell the Texas assets of SML
midway through 2012. CR:382. He hired a broker with whom he
previously had done business to assist him in selling the business.
CR:382-83. The buyer the broker found was American Optical Services,
L.L.C. (“AOS”), a Delaware limited liability company having its offices in
Nevada. CR:383, 166.
Lantz had an ongoing attorney-client relationship with Florida attorney Herbert Rolnick, who also lives in Coral Springs, Florida.
CR:382, 502. Appellant Rolnick graduated from law school in 1980. He
was admitted to the Florida Bar in January 1981 and has never been
licensed to practice law in any other state. CR:503. Since then, Rolnick’s
law practice has been located in Broward County, Florida. CR:503. In
1998, Rolnick started representing Lantz individually and entities with
which Lantz was associated in various matters. CR:382, 503.
*11 Lantz asked Rolnick to represent SML and him with regard to the asset sale to AOS. CR:503. AOS provided the first draft of the asset
purchase agreement. CR:387, 504. Rolnick reviewed the AOS draft,
discussed it with Lantz, and negotiated terms with AOS. CR:505. When
Rolnick communicated with AOS employees, those employees were in
Nevada and Rolnick was in Florida. CR:515. AOS and SML ultimately
agreed that Nevada law would govern the Asset Purchase Agreement,
but Texas law would control the enforceability of the promissory note and
security agreement and thus any foreclosure actions. CR:460, 480, 488.
Lantz wanted to be sure that he could foreclose on the Texas assets in the event AOS defaulted on the promissory note. CR:506. Because he
was not familiar with Texas law, Rolnick advised Lantz to hire Texas
counsel to ensure that the security agreement, promissory note, and a
lease complied with Texas law and properly protected SML’s and Lantz’s
interests. CR:506.
Lantz told Rolnick he wanted to use Jason Ray, a Texas attorney with the firm Riggs, Aleshire & Ray (“RAR”). CR:384. Ray, who is board-
certified in administrative law, was representing Lantz and SML in a
Texas Medicaid investigation and audit. CR:548. Lantz and Rolnick
contacted Ray and told him about the transaction between SML and
AOS. CR:384. A few days later, Rolnick’s legal assistant sent Ray an
email confirming that Ray’s representation of SML and Lantz would
entail reviewing the promissory note and security agreement, ensuring
that the documents complied with Texas law, and making sure Lantz’s
and SML’s rights to the collateral were protected in the event of a default:
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:320. Included with the email were copies of the security agreement,
promissory note, and executed asset purchase agreement. CR:476, 333,
444.
Apparently, unbeknownst to the plaintiffs or Rolnick, Ray had no experience in transactions such as the one between SML and AOL.
CR:548. Ray sent the documents to Paul Browder, a lawyer with the firm
Blazier, Christensen, Bigelow & Virr (“BCBV”) and asked him to review
them. CR:549-50. Browder sent the documents back to Ray with
comments and questions. CR:550. Ray then sent Browder’s comments
and questions to Rolnick as if they were his own. [2] CR:550, 554.
*13 The draft documents Rolnick sent to Ray stated the security interests would be perfected by filing a UCC-1 in Delaware where AOS
was located. CR:333. The comments 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. CR:336. Rolnick
accordingly changed the promissory note to state that the UCC-1 would
be filed in Texas. CR:516. Rolnick also incorporated into the final
documents the other comments/suggested changes on the drafts Ray sent
back to him. CR:516. Rolnick sent the original UCC-1 to Ray for filing in
Texas. CR:510. No UCC-1 reflecting the security interest in the SML
assets was filed in Delaware, the jurisdiction in which AOS was located
under the Texas Uniform Commercial Code (“UCC”). CR:383.
AOS defaulted on the promissory note. CR:141. Ray referred Lantz to appellee Adams & Graham to represent Lantz and/or SML in enforcing
the security agreement and promissory note. CR:387. AOS ultimately
filed a bankruptcy petition in Delaware. CR:141. Lantz learned from
SML’s bankruptcy lawyer that its security interest had not been
perfected, because Texas law actually required that the UCC-1 be filed
in the jurisdiction in which the debtor was located, i.e., Delaware, rather
than where the assets were located. CR:142. Instead of having a perfected
security interest in the assets, SML ended up with an unsecured claim in
the AOS bankruptcy. CR:142.
II. PROCEDURAL HISTORY
SML and Lantz filed suit against RAR, BCBV, and Adams & Graham, the three Texas law firms who had done work in Texas in
connection with SML’s sale of assets to AOS and attempts to enforce the
plaintiffs’ security interests against AOS. CR:3. On the same day it
answered the suit, RAR filed a third-party petition against Rolnick.
CR:17. Rolnick timely filed a special appearance and original answer
subject thereto. CR:23, 134. Shortly thereafter, SML and Lantz amended
their petition to name Rolnick as a defendant. CR:137. After the parties
conducted limited discovery solely on the jurisdictional issue, the trial
court held a hearing on the special appearance for which there is a
reporter’s record filed with this Court. The trial court took the special
appearance under advisement and later denied it. CR:697. The order does
not specify the basis for the ruling. CR:697. This interlocutory appeal
followed. CR:698.
SUMMARY OF THE ARGUMENT The United States and Texas Supreme Courts have clearly articulated the Constitutional boundaries of personal jurisdiction in
Texas. Plaintiffs and the Texas lawyer defendants have asserted legal
malpractice/contribution claims against Rolnick, alleging that his
provision of legal services to plaintiffs in Florida caused the harm about
which plaintiffs complained. It is undisputed that Rolnick is a Florida
resident whose practice of law is limited to Florida. It is also undisputed
that Rolnick and appellee Lantz had an ongoing attorney-client
relationship since 1998. The evidence before the trial court and this Court
conclusively establishes that all of the legal services Rolnick provided to
plaintiffs Lantz and SML (both domiciled in Florida) occurred in Florida.
All of the legal services provided by Rolnick about which plaintiffs complain involve SML’s sale of its Texas assets to a Delaware corporation
with offices in Nevada. Lantz hired a Texas lawyer with whom he had an
on-going relationship to review a promissory note and security
agreement to ensure they complied with Texas law, which SML and the
buyer had agreed would govern that part of the transaction. Although
Rolnick communicated and exchanged drafts with the Texas lawyer, he
did so for the benefit of plaintiffs and as part of his representation of them
in Florida. It is undisputed that Rolnick never went to Texas and did not
perform any of the legal work for plaintiffs in Texas.
Texas cases have held that the personal jurisdiction analysis in legal malpractice cases against nonresident lawyers or law firms must
focus on where the legal services were provided. This is so even when the
client is a Texas resident and the lawyer has communicated opinions to
a Texas client. The court so holding have reasoned that the claims arise,
not out of any contacts the nonresident lawyer purposefully directs to
Texas, but, rather, from the lawyer’s exercise of judgment and provision
of legal services outside Texas. A similar analysis is used when plaintiffs
attempt to sue nonresident physicians for medical malpractice that
involved treatment provided outside of Texas.
In recent Texas Supreme Court and United States Supreme Court cases, the jurisdictional analysis has been clarified. Both courts have
rejected arguments based on conduct characterized as directing a tort to
a Texas resident. Moreover, the United State Supreme Court has held
that the specific jurisdiction question is not where the plaintiff suffered
an injury or effect, but whether the defendant’s conduct connects him to
the forum State in a relevant and meaningful way. Stated another way,
when the plaintiff is the only link between the defendant the forum, a
Texas court does not have specific jurisdiction over the nonresident
defendant.
Under the analysis used in these cases, the trial court erred in denying Rolnick’s special appearance. This Court should reverse the trial
court’s order and render judgment dismissing the claims against Rolnick.
ARGUMENT AND AUTHORITIES
I. Standard of Review
“Whether a court has personal jurisdiction over a defendant is a question of law” ( BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d
789, 794 (Tex. 2002)) that an appellate court reviews de novo. See Moki
Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The
resolution of the jurisdictional question, however, may require
determinations of fact to which the law is then applied. See BMC
Software, 835 S.W3d at 794.
If, as here, the trial court does not issue findings of fact and conclusions of law, [3] this Court must assume that the lower court
impliedly found all the facts necessary to support the challenged order.
See id at 795. Because the appellate record in this case includes the
reporter’s record of the special appearance hearing, the implied findings
are not conclusive. See id. Rather, the implied findings can be challenged
for legal and factual sufficiency. See id.
A legal sufficiency complaint must be sustained if: the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert
W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38
Tex. L. Rev. 361, 362-363 (1960)). A factual insufficiency challenge must
be sustained if a review of the entire record reveals that an implied
*18 finding is against the great weight and preponderance of the evidence or
is not supported by factually sufficient evidence. See Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
II. Burdens of Proof
Under Texas law, the plaintiff has the initial burden to plead sufficient allegations to confer personal jurisdiction over the out-of-state
defendant under the Texas long-arm statute. See Retamco Operating,
Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). The burden
then shifts to the defendant challenging personal jurisdiction to negate
factually or legally those bases for personal jurisdiction the plaintiff has
alleged. [4] See Kelly v. Gen’l Interior Constr., Inc., 301 S.W.3d 653, 658,
659 (Tex. 2010). If the plaintiff fails to plead that the defendant
committed any purposeful acts in Texas, the defendant carries its burden
simply by establishing that he is a nonresident. See Siskind v. Villa
Found. For Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982).
The defendant negates jurisdiction factually by producing evidence establishing he “has no contacts with Texas, effectively disproving the
plaintiff’s allegations.” Kelly, 301 S.W.3d at 659. The defendant negates
jurisdiction legally by showing that: (1) even if the plaintiff’s
*19 jurisdictional allegations were true, those alleged facts cannot support
personal jurisdiction; or (2) the evidence is legally insufficient to establish
jurisdiction. See id.
III. The Trial Court Erred In Denying Rolnick’s Special Appearance
A. General Principles Governing Personal Jurisdiction over a Nonresident
The constitutional standards for determining personal jurisdiction are well-settled in Texas. “A court may assert personal jurisdiction over
a nonresident defendant only if the requirements of both the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution and the
Texas long-arm statute are satisfied.” CSR Ltd., 925 S.W.2d 591, 594
(Tex. 1996). The Texas Supreme Court has interpreted the Texas long-
arm statute “to reach as far as the federal constitutional requirements of
due process will allow.” Id.; see also Kelly, 301 S.W.3d at 657; Moki Mac,
221 S.W.3d at 575 (citing other cases). As a result, if the exercise of
personal jurisdiction comports with due process limits, the requirements
of the Texas long-arm statute are likewise satisfied. [5]
The Due Process Clause of the Fourteenth Amendment protects a defendant’s liberty interests in not being subject to the binding
judgments of a forum with which it has established no meaningful
*20 contacts, ties, or relations. See Burger King Corp. v. Rudzewicz, 471 U.S.
462, 471-472 (1985); see also U.S. Const. amend. XIV, §1; Tex. Const. art.
I, §19. In applying that limitation, “the constitutional touchstone remains
whether the defendant purposefully established ‘minimum contacts’ in
the forum State.” Burger King, 471 U.S. at 474.
Minimum contacts establish personal jurisdiction if a nonresident
defendant “‘purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protections of its laws.’” Moki Mac, 221 S.W.3d at 575 (quoting Hanson
v. Denckla, 357 U.S. 235, 253 (1958)); see also Michiana, 168 S.W.3d at
784. The nonresident defendant’s activities “must justify a conclusion
that the defendant could reasonably anticipate being called into a Texas
court,” whether those activities occur within or outside Texas. See Am.
Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
The “purposeful availment” inquiry has three parts. See Moki Mac, 221 S.W.3d at 575. First, only the defendant’s contacts with Texas count.
See Michiana, 168 S.W.3d at 785. The unilateral activities of other
parties are irrelevant. See id.
Second, the conduct relied upon to establish minimum contacts must be “purposeful,” not fortuitous, random, or attenuated. See id.
When analyzing contacts, courts must focus on the quality and nature of
the contacts, rather than the number of contacts or whether the contacts
included tortious conduct. See Am. Type Culture, 83 S.W.3d at 806.
Finally, the nonresident defendant must have sought some benefit, profit, or other advantage by “availing” himself of Texas. See Michiana,
168 S.W.3d at 785. This particular aspect of “purposeful availment” is
“premised on notions of implied consent[.]” See id. In other words, “by
invoking the benefits and protections of a forum’s laws, a nonresident
consents to suit there.” Id. (citing World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980) and Am. Type Culture, 83 S.W.3d at
808).
Even if the defendant has purposefully engaged in forum activities, the exercise of jurisdiction still must comport with traditional notions of
“fair play and substantial justice.” Burger King, 471 U.S. at 477-478. This
inquiry requires an appellate court to consider several factors, including
the burden on the nonresident defendant and the forum state’s interests,
if any, in resolving the dispute. See Guardian Royal Exch. Assur., Ltd. v.
English China Clays, P.L.C., 815 S.W.2d 223, 228, 231 (Tex. 1991).
B. Rolnick Lacks “Minimum Contacts” with Texas Under modern minimum contacts analysis, a nonresident defendant’s conduct is evaluated under two jurisdictional theories:
specific jurisdiction and general jurisdiction. Specific jurisdiction exists
if the nonresident defendant’s “alleged liability arises from or is related
to an activity conducted within the forum.” BMC Software, 83 S.W.3d at
796. The minimum contacts analysis for specific jurisdiction focuses “on
the relationship among the defendant, the forum and the litigation.”
Guardian Royal, 815 S.W.2d at 228; see also Moki Mac, 221 S.W.3d at
575-576 (reaffirming Guardian Royal analysis). In order for litigation to
arise from or relate to a nonresident defendant’s contacts, there must be
a substantial connection between those contacts and the operative facts
of the litigation.” Moki Mac, 221 S.W.3d at 585.
Barely a year ago, the United States Supreme Court addressed what contacts qualify as “minimum contacts” necessary to create specific
jurisdiction. See Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). In its
unanimous opinion, the Court explained that the nonresident’s “suit
related conduct must create a substantial connection with the forum
State.” Id. The Court reaffirmed that the specific-jurisdiction inquiry
must focus on “the relationship among the defendant, the forum, in the
litigation.” Id. (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
775, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (internal quotations
omitted). The Court in Walden first held that this relationship has to
arise out of contacts the defendant himself created with the forum State.
See id. at 1122. Walden reiterates that contacts between the plaintiff or
third parties and the forum State will not satisfy the defendant’s focused
“minimum contacts” requirement.
In Walden, the Court further held that the “minimum contacts” analysis must look to “the defendant’s contacts with the forum State
itself, not the defendant’s contacts with persons who reside there.” Id. at
1122. In other words, when the plaintiff is the only link between the
defendant and the forum, specific jurisdiction is lacking. See id. at 1122-
1123. The Court emphasized that, although “a defendant’s contacts with
the forum State may be intertwined with his transactions or interactions
with the plaintiff or other parties [,]” due process principles require that
personal jurisdiction over a defendant be “based on his own affiliation
with the State, not based on the ‘random, fortuitous, or attenuated’
contacts he makes by interacting with other persons affiliated with the
State.” Id. at 1123. Finally, the Court clarified that the same analysis
applies when intentional torts are alleged, and more importantly,
rejected the argument that a defendant’s allegedly tortious conduct that
causes the plaintiff to suffer an injury in the forum State is enough. The
Court held that the “proper question is not where the plaintiff
experienced a particular injury or effect, but whether the defendant’s
conduct connects him to the forum in a meaningful way.” Id. at 1116
(emphasis added). This analysis confirms the analytical framework
adopted by the Texas Supreme Court in the Michiana and Moki Mac
cases.
General jurisdiction, on the other hand, subjects a nonresident defendant to causes of action that do not arise from or relate to the
defendant’s purposeful conduct within Texas. As a result, the minimum
contacts analysis for general jurisdiction has always been more
demanding than for specific jurisdiction. See CST Ltd., 925 S.W.2d at
595. Although Texas cases had previously required only “continuous and
systematic contacts” with Texas to support general jurisdiction, two
recent United States Supreme Court cases have clarified that general
jurisdiction requires even more. See Daimler AG v. Bauman, ___ U.S.
___, 134 S. Ct. 746, 757 (2014); Goodyear Dunlop Tires Operations, S.A.
v. Brown, ___ U.S. ___, 131 S. Ct. 2846, 2853 (2011). “For an individual,
however, the paradigm forum for the exercise of general jurisdiction is
the individual’s domicile[.]” Id.
It is undisputed that Rolnick’s domicile is Florida. It is thus not surprising that appellees asserted only specific, rather than general,
jurisdiction. CR:261, 659.
C. The Evidence Is Legally Insufficient to Support Specific Jurisdiction over Rolnick in This Case Specific jurisdiction exists when “the defendant’s alleged liability arises from or is related to an activity conducted within the forum.” CSR
Ltd ., 925 S.W.2d at 595. Any actions taken outside the forum can
constitute minimum contacts only when those actions are “purposefully
directed toward the forum state.” Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 112 (1987); see also Guardian Royal, 815 S.W.2d at
227. The Texas Supreme Court has cautioned, however, that jurisdiction
turns on a defendant’s contacts, not where the defendant “directed a tort.”
Michiana, 168 S.W.3d at 790. [6]
In Michiana, the Texas Supreme Court disapproved those cases holding that “(1) specific jurisdiction is necessarily established by
allegations or evidence that a nonresident committed a tort in a
telephone call from a Texas number, or that (2) specific jurisdiction turns
on whether a defendant’s contacts were tortious rather than the contacts
themselves.” 168 S.W.3d at 791-792. Moreover, the court thoroughly
explained why personal jurisdiction over a nonresident defendant cannot
be based on where a tortious injury will be felt by the plaintiff. See id. at
788-792. Thus, while allegations that the defendant committed a tort in
Texas can satisfy the Texas Long-Arm Statute, such allegations do not
necessarily satisfy the U.S. Constitution. See id. at 788.
In Texas, the focus of the personal jurisdiction analysis in a legal malpractice suit against a nonresident attorney focuses on where the
nonresident attorney performed legal services, which in this case is
Florida. See Abilene Diagnostic Clinic, PLLC v. Paley, Rothman,
*26 Goldstein, Rosenburg, Eig & Cooper, Chartered, 364 S.W.3d 359, 365-66
(Tex. App.—Eastland 2012 no pet.); Ahrens & De Angeli, P.L.C. v. Flinn,
318 S.W.3d 474, 484-485 (Tex. App.—Dallas 2010, pet. denied);
Proskauer Rose, LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009
WL 242993, at *4 (Tex. App.—Houston [14th Dist.] Feb. 3, 2009, no pet.)
(mem. op.); Markette v. X-Ray X-Press Corp., 240 S.W.3d 464, 468-69
(Tex. App.—Houston [14th dist.] 2007, no pet.). In all of these cases, the
appellate courts held there was no specific jurisdiction over nonresident
attorneys and law firms where the lawyer exercised his legal judgment,
formed his legal opinions, and did the legal work for the client in states
other than Texas. The courts so held even when it was undisputed that
the work product of the nonresident attorney was sent to Texas or done
for a Texas client. See Abilene Diagnostic, 364 S.W.3d at 364; Proskauer,
2009 WL 24293, at *4; Markette, 240 S.W.3d at 468 & n.2.
This same analysis has been used to preclude personal jurisdiction over a nonresident physician in a Texas suit arising from treatment the
physician provided in Michigan. See Brocail v. Anderson, 132 S.W.3d 552,
563 (Tex.App.—Houston [14th Dist.] 2004, pet. denied). The
patient/plaintiff was a former professional baseball player whose initial
treatment by the physician in Michigan. See id. at 555. After the plaintiff
moved to Texas for rehabilitation, the nonresident physician prescribed
follow-up treatments to be administered by physicians in Texas. See id.
at 55-56. Plaintiff sued the physician in Texas, claiming that the doctor’s
conduct in faxing prescriptions to Texas and communicating with his
Texas physicians justified specific jurisdiction. See id. at 558. The Texas
Supreme Court in Moki Mac cited and discussed Brocail with approval
agreed with the court of appeals’ conclusion that the tort about which
Brocail complained occurred in the exercise by the physician of his
medical judgment in Michigan. See Moki Mac, 221 S.W.3d at 588. The
analysis in Brocail approved and applied by the supreme court applies
with equal force to the instant case.
The record before the trial court in the instant case included the entire depositions of Rolnick, Lantz and Ray, affidavits, and documents.
The following undisputed evidence establishes that Rolnick lacked
minimum contacts with Texas under the analysis used in the above cases:
• Rolnick has been a Florida resident for approximately 35 continuous years (CR:35);
• He has never lived in or even visited Texas (CR:35); • He is a lawyer licensed to practice in Florida and is a partner in a Florida law firm, the only office of which is in Florida (CR:35);
• He has never been licensed to practice law in Texas and has never appeared pro hac vice in a Texas court (CR:35);
• No lawyer associated with Rolnick’s law firm has been licensed to practice law in Texas, has practiced law in Texas, or has appeared pro hac vice in a Texas court (CR:35);
• Rolnick does not have a registered agent for service of process in Texas (CR:35);
• He has never had any bank accounts in Texas (CR:35); • Rolnick has never owned or leased any real property in Texas, does not conduct business in Texas, and has never paid or been required to pay taxes in or to Texas (CR:35);
• He does not have any employees, agents, books, records, mailing addresses, or telephone listings in Texas (CR:36);
• Rolnick has never sold, consigned, or leased any tangible or intangible property in Texas (CR:36); • He has never advertised for, recruited, or solicited clients, employees, or customers in Texas (CR:36); • Rolnick had represented Lantz since 1998 in individual matters and matters involving Florida-based companies Lantz has owned (CR:382, 503);
• Lantz, who resides in Florida, asked Rolnick to represent him in the sale of SML’s assets in Texas to AOS (CR:503);
• SML is a Florida corporation that owned and operated retail eyeglass businesses in Texas (CR:139); • AOS is a Delaware limited liability company with its offices in Nevada (CR:166);
• When SML and AOS agreed that Texas law would govern the enforceability of the promissory note and security agreement in favor of SML, Rolnick advised Lantz to obtain Texas counsel to advise Lantz on how to protect his interests under Texas law. Rolnick did so because he was not familiar with Texas law (CR:39); • Lantz chose Ray as his Texas counsel, because Ray had been representing him and/or SML in a Texas Medicaid audit. Rolnick did not solicit or hire Ray or his firm (CR:384, 389, 386-87);
• According to Ray, Lantz insisted on hiring Ray, even though Ray’s expertise was in administrative law rather than transactional law (CR:549); • Lantz admitted that Rolnick did not identify or solicit Ray as Texas counsel for the transaction (CR:386-87); • In the past, when legal issues had arisen regarding SML’s Texas operations, Lantz had hired a Texas lawyer to resolve them (CR:390); • All of the legal work Rolnick did in connection with the SML-AOS transaction took place in Florida in the course of his representation of SML and/or Lantz (CR:37); • Rolnick communicated from Florida with the AOS representatives, who were in Nevada (CR:37,505); • Rolnick never spoke with, met with, or sought legal services from appellees BCBV and Adams & Graham, either for himself or any of his clients, including Lantz or SML (CR:515, 517);
• Ray admitted that: (1) Lantz was his client (CR:550); (2) he asked a BCBV lawyer to review the documents (CR:553); (3) he passed off as his own the BCBV lawyer’s comments and questions regarding the documents (CR:550, 554); and (4) he sent his bills to Lantz (CR:551); • Ray admitted that he did not have an attorney-client relationship with Rolnick (CR:551-52); • Rolnick confirmed in writing that Ray’s work for Lantz and SML was to “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:320);
• The draft promissory note Rolnick sent to Ray for review stated that the UCC-1 would be filed in Delaware (CR:333);
• Rolnick interpreted the comments Ray emailed back to Rolnick as indicating the UCC-l should instead be filed *30 in Texas, so Rolnick revised the promissory note to reflect perfection of the security interest by filing the UCC-1 in Texas rather than in Delaware (CR:336, 516); • The work that Ray and the other Texas lawyers did in connection with the SML-AOS transaction was for the benefit of Lantz and SML (CR:556); • Rolnick’s “contacts” with Texas with regard to the SML- AOS transaction were limited to emailing the transactional documents to Ray, having a few telephone conferences with Ray to discuss the comments Ray sent back to Rolnick, and mailing the original closing documents to Ray to record (CR:160); • Ray introduced plaintiffs to Adams & Graham (CR:387); and
• Rolnick did not benefit or gain any advantage from his incidental contacts with plaintiffs’ lawyers in Texas (CR:386).
Plaintiffs and defendant Adams & Graham filed responses to Rolnick’s special appearance. [7] None of the arguments made in the
responses takes the instant case out of the general rule that a Texas court
does not have personal jurisdiction over a nonresident lawyer sued for
malpractice, when all of the legal work done for the client takes place
outside of Texas.
For example, plaintiffs place much emphasis on the fact that the SML-AOS transaction involved the sale of businesses and leases located
in Texas. Although a defendant’s purchase or sale of real property located
in Texas can constitute purposeful availment ( see Retamco, 278 S.W.3d
*31 at 340), a nonresident defendant’s communications about or involvement
in a transaction involving Texas real property does not constitute
purposeful availment when the defendant does not have an interest in
the property. See Curocom Energy, LLC v. Young-Sub Shim, 416 S.W.3d
893, 897-898 (Tex.App.—Houston [1st Dist.] 2013, no pet.) (holding that
Texas court lacked jurisdiction over nonresident defendant in suit
alleging fraud in connection with sale to plaintiff of oil and gas interests
in Texas, where fraudulent conduct took place in Korea and defendant
had no ownership interest in the land at issue); Horowitz v. Berger, 377
S.W.3d 115, 125 (Tex.App.—Houston [14th dist.] 2012, no pet.) (holding
there was no personal jurisdiction over Israeli promoter of Texas real
property because alleged fraud occurred exclusively in Israel and
emphasizing that promoter never owned an interest in the property).
That is the case here. All of Rolnick’s legal work involving the sale of
SML’s assets took place in Florida, and there is no evidence that Rolnick
owned any interest in SML or any of the Texas assets.
Plaintiffs also argued that Rolnick “quarter-backed” the transaction and thus his actions were directed towards Texas. This
argument too is defeated by the analysis adopted in 2007 by the Texas
Supreme Court in Michiana and Moki Mac, as well as the analytical
frame work required by the recent United States Supreme Court decision
in Walden. It is undisputed that all of the work Rolnick did with respect
to the transaction was done for the benefit of Lantz and/or SML, his
Florida clients. All of that work was done in Florida, and involved no
travel to Texas. As the Court explained in Walden, it is the defendant’s
contacts with the forum, not with a person living there that are
jurisdictionally relevant. Simply put, appellees’ reliance on the activities
of the Texas lawyers are not relevant to the minimum contacts analysis.
Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325 (Tex.App.—Fort
Worth 2009, no pet.) illustrates the point. In Gordon, a Florida resident
sued a Florida law firm and a Texas law firm alleging legal malpractice
in connection with the plaintiff’s claim for injuries allegedly caused by a
prescription drug. See id. at 328. The plaintiff hired the Florida lawyer
to file suit on his behalf in multi-district litigation pending in a New York
federal district court. See id. The Florida lawyer referred the case to the
Texas lawyer. See id. The Florida and Texas lawyers allegedly entered
into a written agreement to jointly represent the Florida client. See id.
According to the Florida client, the Texas lawyer would be lead counsel,
with a substantial portion of the legal services to be done by the Texas
lawyer in Texas. See id. According to the alleged agreement, however,
the Florida and Texas lawyers “would remain jointly responsible for [the
plaintiff’s] case.” Id.
Although both lawyers allegedly told their Florida client his case would be filed “soon,” the claim was never filed. See id. at 328-29. The
client filed the legal malpractice suit in Texas state district court. The
Florida lawyer filed a special appearance, which the trial court denied.
See id. at 330.
The Fort Worth Court of Appeals reversed and rendered a judgment dismissing the Florida client’s claims against the Florida lawyer for want
of jurisdiction. See id. at 336. Although the court held that the contract
between the Florida and Texas lawyers satisfied the “doing business”
requirement of the Texas long-arm statute, the court relied on Moki Mac
in holding that satisfying the Texas Long-Arm statute is not sufficient.
See id. at 332. The court then conducted the minimum contacts analysis
required by federal due process principles. Relying on cases holding that
merely contracting with a Texas resident was insufficient, the court
rejected the argument that the contract between the Florida and Texas
lawyer supported the exercise of specific jurisdiction. See id. at 332. The
court also rejected the Florida client’s argument based on the fact that
the parties intended most of the legal services on the case to occur in
Texas. The court held that those services, which were to be performed by
the Texas lawyer, were not relevant to the minimum contacts analysis.
See id. at 333. [8]
*34 Moreover, the Gordon analysis and holding conclusively rebuts
appellees’ argument in their response that collaboration between a
Florida lawyer and a Texas lawyer can confer personal jurisdiction on the
Florida lawyer, particularly when the two lawyers represent the same
Florida client. Gordon’s holding that there was no jurisdiction over the
Florida lawyer, despite the fact that most of the legal work for the client’s
litigation would be done in Texas (albeit by the Texas lawyer) applies
with particular force here, since the legal work done by the Texas lawyer
in the instant case was far less.
Furthermore, it is undisputed that any phone calls between Rolnick and Ray, emails between them transmitting documents, and Rolnick’s
participation in negotiations with AOS are not minimum contacts by
Rolnick with Texas. This is particularly true, since the phone calls and
work done in Texas by Ray and the other Texas lawyers and by Rolnick
in Florida was for their Florida client’s benefit.
Finally, the record in this case conclusively establishes that, from Rolnick’s perspective, his contacts with the Ray were the sort of
fortuitous, random, or attenuated contacts that Walden teaches cannot
support personal jurisdiction over a nonresident defendant, such as
Rolnick. Rolnick’s contacts with Ray were fortuitous, because they
resulted from the fact that the SML assets being sold were in Texas.
There is no evidence that Rolnick had any interest in those assets or any
part in the decision to sell them. The choice of Texas law was also
fortuitous from Rolnick’s perspective, because that choice was made
because plaintiffs wanted to be able to foreclose on those assets, which
were to be located in Texas after the sale. [9]
D. Even If Rolnick had the Requisite Minimum Contacts, Exercising Personal Jurisdiction over Him Would Offend Traditional Notions of Fair Play and Substantial Justice Even when a defendant has minimum purposeful contacts with a state, the state court cannot exercise personal jurisdiction over the
defendant if doing so would offend traditional notions of fairness. See
Burger King, 471 U.S. at 477-478. Texas courts evaluate several factors
in determining whether asserting jurisdiction over a nonresident
defendant would be fair and just, including: (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. Guardian
Royal , 815 S.W.2d at 228, 232. In this case, the relevant factors show
*36 that asserting jurisdiction over Rolnick would indeed violate traditional
notions of fair play and substantial justice.
The burden on Rolnick to litigate in Texas would be significant. His law practice is located in Florida, the only place in which he is licensed
to practice law. As explained previously, Rolnick has no property,
employees, or assets in Texas.
Texas has no interest in adjudicating any dispute between Rolnick and plaintiffs, both of whom are domiciled in Florida. This is especially
true, because it is undisputed that all of Rolnick’s legal work for plaintiffs
took place outside of Texas in Florida. Since Rolnick and plaintiffs are
residents of Florida, that state would be a much more convenient forum
for all of them.
IV. Conclusion and Prayer
For all of the reasons given above, the trial court erred in denying Rolnick’s special appearance. Appellant Herbert Rolnick respectfully
prays for the Court to reverse the trial court’s order, render judgment
dismissing the claims against him for lack of personal jurisdiction and
for such other relief to which he may be entitled.
CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned certifies this Appellant’s Brief complies with the type-
volume limitations of that rule. The undersigned prepared the
Appellant’s Brief using Microsoft Word 2013 and is relying on that
software’s word-count function.
Exclusive of the exempted portions listed in Texas Rule of Appellate Procedure 9.4, the brief contains 6,439 words.
/s/ Ruth G. Malinas RUTH G. MALINAS *38 Respectfully submitted, RUTH G. MALINAS Texas Bar No. 08399350 Plunkett & Griesenbeck, Inc. Catholic Life Building, Suite 900 1635 N.E. Loop 410 San Antonio, Texas 78209 (210) 734-7092 (telephone) (210) 734-0379 (facsimile) rmalinas@pg-law.com /s/ Ruth G. Malinas RUTH G. MALINAS COUNSEL FOR APPELLANT HERBERT ROLNICK CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing Appellant’s Brief has been forwarded this 9th day of July, 2015, to the
following attorneys of record via the method stated:
J. Hampton Skelton
Brandon Duane Gleason
Skelton & Woody
248 Addie Roy Road, Suite B-302
Austin, TX 78746
hskelton@skeltonwoody.com
bgleason@skeltonwoody.com
Attorneys for Sight’s My Line, Inc.,
a Florida Corporation and
Stewart Lantz
Scott R. Kidd
Scott V. Kidd
Kidd Law Firm
819 W. 11th Street
Austin, TX 78701
scott@kiddlawaustin.com
svk@kiddlawaustin.com
Attorneys for Riggs, Aleshire & Ray
Michael B. Johnson
Salvador Davila
Thompson, Coe, Cousins & Irons, LLP
701 Brazos, Suite 1500
Austin, TX 78701
mjohnson@thompsoncoe.com
sdavila@thompsoncoe.com
Attorneys for Blazier, Christensen,
Bigelow & Virr
Robert E. Valdez
Jose “JJ” Trevino, Jr.
Valdez, Jackson & Trevino, PC
1826 North Loop 1604 West, Suite 275
San Antonio, TX 78248
revaldez@vjtlawfirm.com
jtrevino@vjtlawfirm.com
Attorneys for Adams & Graham
/s/ Ruth G. Malinas RUTH G. MALINAS
Appendix *41 DC BK15135 PG738 Filed in The District Court of Travis County, Texas MAY 1 4 2015 lf '.Q.g:.p M. No. D-1-GN-14-004583 At Velva L. Price [1] District Clerk SIGHT'S MY LINE, INC., et al § IN THE DISTRICT COURT §
v. § TRAVIS COUNTY, TEXAS §
RIGGS, ALESHIRE & RAY, et al § 200th JUDICIAL DISTRICT ORDER OVERRULING SPECIAL APPEARANCE On the 14th day of May, 2015, came on for hearing the special appearance filed by Herbert Rolnick. Having considered the pleadings, special appearance, evidence, and argument of counsel, the court concludes that the special appearance should be overruled.
IT IS THEREFORE ORDERED that Herbert Rolnick's special appearance be, and the same is hereby, overruled.
Signed this t 'fZ_y of May, 2015 I llllll lllll lllll lllll lllll lllll lllll lllll lllll llll llll
004028458
697
[1] The appellate record consists of a clerk’s record (cited as “CR:[page #]”) and a one- volume reporter’s record (cited as “RR:[page#])”
[2] Although Ray claimed he told Lantz and/or Rolnick that his lack of transactional experience would require him to consult with another lawyer, Lantz and Rolnick both testified they did not know about the other lawyer, that it would be Browder, or that Browder had supplied the comments and questions Ray sent as his own. CR:517. Ray sent his bills only to Lantz. CR:551. Browder sent his bills to Ray who then added Browder’s work to his own bills. CR:553. Ray did not open a new matter for the work done on the SML-AOS transaction; rather, he placed entries for that work under the same client and matter number used for the Medicaid audit work he had done for SML. CR:556.
[3] The trial court need not make findings of fact or conclusions of law with respect to an interlocutory order that can be immediately appealed. Tex. R. App. P. 28.1(c). Denial of a special appearance is such an order. See Tex. Civ. Prac. & Rem. Code § 51.014(7).
[4] Some cases have stated the defendant’s burden is to negate “all bases of personal jurisdiction.” See, e.g., This does not mean, however, the nonresident defendant “must negate every possible ground in the universe[;]” rather, the defendant must negate only those bases alleged by the plaintiff to support personal jurisdiction. See Scott v. Huey L. Cheramie, Inc., 833 S.W.2d 240, 241 (Tex. App.—Houston [14th Dist.] 1992, no writ).
[5] The Texas Supreme Court has cautioned that simply because allegations satisfy the Texas long-arm statute, personal jurisdiction may still be improper over a particular defendant. See Michiana Easy Livin’ Country, Inc., v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). The court based that analysis on the rule that the long-arm statute can extend no further than the U.S. Constitution allows. See id.
[6] As a result, any reliance on cases finding personal jurisdiction over a nonresident defendant because tortious conduct was “directed” to Texas from outside Texas would be misplaced.
[7] Defendants RAR and BCBV did not file responses.
[8] See also Bergenholtz v. Cannata, 200 S.W.3d 287, 292 (Tex.App.—Dallas 2006, no pet.) (plaintiff’s receipt of legal advice, billings, and correspondence in Texas from nonresident lawyer not relevant to jurisdiction).
[9] Plaintiffs also made a strange argument that personal jurisdiction over Rolnick could be established by agency principles. CR:281-282. He further admitted that he became involved in the sale of SML’s assets through a phone call he received from Lantz, who asked him to look at the sale documents and work with Rolnick. CR:549.