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

Opinion

ACCEPTED 03-15-00335-CV 6373473 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/5/2015 4:11:54 PM JEFFREY D. KYLE CLERK No. 03-15-00335-CV

FILED IN IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL3rd COURT OF APPEALS DISTRICT AUSTIN, TEXAS AUSTIN, TEXAS 8/5/2015 4:11:54 PM JEFFREY D. KYLE Clerk HERBERT ROLNICK

Appellant,

v.

SIGHT’S MY LINE, INC.; STEWART LANTZ; RIGGS, ALESHIRE & RAY, P.C.; BLAZIER, CHRISTENSEN, BIGELOW & VIRR, P.C.; ADAMS & GRAHAM, L.L.P.

Appellees.

On Interlocutory Appeal from the 200th Judicial District Court, Travis County, Texas

BRIEF OF APPELLEE ADAMS & GRAHAM, L.L.P.

Robert E. Valdez State Bar No. 20428100 revaldez@vjtlawfirm.com Joseph E. Cuellar State Bar No. 24082879 jcuellar@vjtlawfirm.com VALDEZ, JACKSON & TREVIÑO, P.C. Plaza Las Campanas 1826 N. Loop 1604 W. Suite 245 San Antonio, Texas 78248 210-598-8686 – Telephone 210-598-8797 – Fax ATTORNEYS FOR APPELLEE ADAMS & GRAHAM, L.L.P. ORAL ARGUMENT CONDITIONALLY REQUESTED TABLE OF CONTENTS

Table of Contents ....................................................................................................... i

Index of Authorities ................................................................................................. ii

Issue Presented .......................................................................................................... 1

Did the trial court correctly apply this Court’s precedent when it denied Appellant Rolnick’s special appearance?

Statement Regarding Oral Argument ........................................................................ 1

Statement of Facts ..................................................................................................... 1

Summary of Argument .............................................................................................. 4

Argument.................................................................................................................... 4

I. Texas Courts May Exercise Jurisdiction Over Rolnick to the Full Extent Allowed by the United States Constitution ................................................ 5

II. Rolnick Created Sufficient Minimum Contacts with Texas During His Representation of the Plaintiffs ............................................... 6

III. This Court’s Precedent Supports the Exercise of Jurisdiction Over Rolnick.............................................................................................. 8

IV. Rolnick’s Arguments Misapply the Specific Jurisdiction Analysis .................................................................................................... 13

V. The Exercise of Jurisdiction Over Rolnick Does Not Offend Traditional Notions of Fair Play and Substantial Justice ......................... 15

Conclusion & Prayer ............................................................................................... 18

Certificate of Compliance ........................................................................................ 19

Certificate of Service ............................................................................................... 19

i INDEX OF AUTHORITIES

Cases

Abilene Diagnostic Clinic, PLLC v. Paley, Rothman, Goldstein, Rosenburg, Eig & Cooper, Chartered, 364 S.W.3d 359 (Tex. App.—Eastland 2012, no pet.) ............................................ 14

Ahrens & De Angeli, P.L.C. v. Flinn, 318 S.W.3d 474 (Tex. App.—Dallas 2010, pet. denied) ......................................... 14

Ayeni v. State, 440 S.W.3d 707 (Tex. App.—Austin 2013, no pet.) ............................................... 13

Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653 (Tex. 2010) ...................................................................................... 5

Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325 (Tex. App.—Fort Worth 2009, no pet.) ........................................ 14

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223 (Tex. 1991) ..............................................................................15, 18

Guidry v. U.S. Tobacco Co., 188 F.3d 619 (5th Cir. 1999) .......................................................................15, 16, 17

Howell v. Tex. Worker’s Comp. Comm’n, 143 S.W.3d 416 (Tex. App.—Austin 2004, pet. denied) ........................................ 11

Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ................................................................................................. 17

Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653 (Tex. 2010) ...................................................................................... 5

Markette v. X-Ray, X-Press Corp., 240 S.W.3d 454 (Tex. App.—Houston [14th Dist.] 2007, no pet.)......................... 15

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005)......................................................................6, 8, 12, 13 ii Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) .................................................................................. 5, 6

Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013) ....................................................................4, 5, 6, 7, 17

Proskauer Rose, LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009 WL 242993 (Tex. App.—Houston [14th Dist.] Feb. 3, 2009, no pet.) (mem. op.) ......................................................................................... 14

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009) .....................................................................6, 7, 12, 14

Rowland & Rowland, P.C. v. Tex. Emp’rs Indem. Co., 973 S.W.2d 432 (Tex. App.—Austin 1998, no pet.) .....................8, 9, 10, 11, 13, 17

Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008) ...................................................................................... 10

Walden v. Fiore, 134 S. Ct. 1115 (2014) ............................................................................................. 10

World-Wide Volkswagon Corp v. Woodson, 444 U.S. 286 (1980) ................................................................................................. 16

Statutes

TEX. CIV. PRAC. & REM. CODE § 17.041 .................................................................... 5

iii ISSUE PRESENTED

Did the trial court correctly apply this Court’s precedent when it denied

Appellant’s special appearance?

STATEMENT REGARDING ORAL ARGUMENT

Appellee Adams & Graham, P.C. does not believe oral argument would be

helpful because Appellant’s brief does not directly contest the applicability of this

Court’s precedent that Appellee cited in support of the trial court’s denial of

Appellant’s special appearance. Should the Court decide to grant Appellant’s

request for oral argument, Appellee requests that it be permitted to participate as

well.

STATEMENT OF FACTS

Appellant Herbert Rolnick is a lawyer who lives and practices in the State of

Florida. CR 502. For over twenty years, he has represented Appellee Stewart Lantz

in a variety of legal matters, including the formation and sale of business entities.

Appellee Sight’s My Line, Inc. (“SML”), a retailer for eyeglasses formed in 2002,

was one of those entities. CR 389–90. Although established as a Florida

corporation, SML’s real property, inventory, and other assets were located in

Texas. Id. Lantz and SML are the Plaintiffs in the trial court.

In 2012, Lantz decided to sell SML to American Optical Services (“AOS”).

CR 382. Rolnick, already familiar with SML and its Texas-based assets, was hired

1 by Lantz to negotiate the transaction with AOS. CR 391. Rolnick’s compensation

for his services was between $40,000 and $50,000. CR 394, 514.

As part of his representation, Rolnick determined that it made the most sense

for Texas law to govern this transaction. CR 304, 506. Lantz and Rolnick then

contacted Jason Ray, a partner at Appellee Riggs, Aleshire, & Ray (“RAR”).

CR 384. Ray had previously represented Lantz in relation to administrative law

issues with SML. CR 548. Lantz and Rolnick asked Ray to serve as Texas counsel

for the sale of SML. CR 391. Ray agreed, but he also decided to consult with Paul

Browder, a partner at Appellee Blazier, Christensen, Bigelow & Virr, P.C.

(BCBV), regarding Texas-specific legal issues pertaining to the sale. CR 550.

Rolnick, however, remained in charge of the sale’s negotiation. He

continued to communicate with Jason Ray about issues related to the sale. CR 323,

325, 562. One of the tasks given by Rolnick to Ray was to review the draft sale

documents, including the security agreement and promissory note to secure the

transaction. CR 355. Ray consulted with Browder concerning those documents,

CR 550, and eventually sent an annotated version to Rolnick. CR 486–89. One of

his notes concerned the draft promissory note’s statement that the UCC-1

identifying the secured assets would be filed in Delaware. CR Ray’s note asked

“Where will the assets be held. Texas, right? Shouldn’t the UCC-1 be filed where

2 the assets are located?” CR 489. Ray was not contacted about his notes or any

other matter relating to the sale prior to the closing. CR 508, 553.

After the closing, Ray was contacted by Rolnick with a final instruction.

CR 330. Rolnick directed Ray to file the UCC-1 with the Texas Secretary of State.

CR 562. Ray arranged for Browder to fulfill this directive. CR 558.

AOS eventually defaulted on its obligations under the sale contract and

Appellee Adams & Graham, P.C. (“A&G”) was retained, on Ray’s referral, to

pursue litigation. CR 387. AOS, however, subsequently declared bankruptcy. In

the bankruptcy litigation, Lantz was determined to be unsecured creditors because

the UCC-1 securing the transaction was not filed in Delaware, the state in which

the AOS was incorporated. CR 686. When Lantz contacted Rolnick about the

failure to secure his interest in SML’s assets, Rolnick blamed Ray for the decision

to file the UCC-1 in Texas. CR 512.

Plaintiffs filed suit against the Texas law firms, alleging legal malpractice

related to the sale of AOS. CR 3–10. After RAR joined Rolnick as a third-party

defendant, CR 17–20, the plaintiffs amended their pleadings to add Rolnick as a

direct defendant. CR 137–45. Rolnick filed unsworn special appearances, CR 147–

158, 582–86, and limited discovery was conducted on the jurisdictional issue.

After a hearing and considering the evidence in the record, the trial court overruled

3 Rolnick’s special appearance without issuing findings of fact or conclusions of

law. CR 697.

SUMMARY OF ARGUMENT

The trial court properly denied Rolnick’s special appearance because

Rolnick reached out and created contacts with Texas during his representation of

the Plaintiffs in the sale of SML. Those contacts are substantially related and give

rise to the Plaintiffs’ cause of action for legal malpractice against him.

In addition, this Court has previously decided a case with similar facts in

favor of finding personal jurisdiction over a nonresident law firm, and no

intervening changes in the caselaw have undermined the basis for the Court’s

earlier opinion.

ARGUMENT

The trial court correctly overruled Rolnick’s special appearance because

(1) Rolnick’s contacts with Texas show purposefully availed himself of the

benefits of conducting business in Texas and the operative facts of this litigation

arise from those contacts; and (2) the trial court’s exercise of jurisdiction over

Rolnick does not offend traditional notions of fair play and substantial justice. In

reviewing that decision, this Court analyzes de novo whether the trial court can

exercise personal jurisdiction over a nonresident defendant. Moncrief Oil Int’l, Inc.

v. OAO Gazaprom, 414 S.W.3d at 150. However, because the trial court did not

4 issue findings of fact and conclusions of law, this Court must imply all relevant

facts necessary to support the denial that are supported by the evidence. Id.

I. Texas Courts May Exercise Jurisdiction Over Rolnick to the Full Extent Allowed by the United States Constitution The Texas long-arm statute governs Texas courts’ exercise of jurisdiction

over nonresident defendants. See TEX. CIV. PRAC. & REM. CODE § 17.041, et seq.

“The broad ‘doing business’ language in Texas’s long-arm statute allows the trial

court’s jurisdiction to ‘reach as far as the federal constitutional requirements of due

process will allow.’” Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657

(Tex. 2010) (quoting Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575

(Tex. 2007)). In other words, “the requirements of the Texas long-arm statute are

satisfied if an assertion of jurisdiction accords with federal due-process

limitations.” Moki Mac, 221 S.W.3d at 575.

“Personal jurisdiction is 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, 301 S.W.3d at 657 (quoting Moki Mac, 221 S.W.3d at 575). “A

defendant establishes minimum contacts with a forum when it ‘purposefully avails

itself of the privilege of conducting activities within the forum state, thus invoking

the benefits and protections of its laws.’” Montcreif Oil, 414 S.W.3d at 150

5 (quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338

(Tex. 2009)).

II. Rolnick Created Sufficient Minimum Contacts with Texas During His Representation of the Plaintiffs Rolnick’s contacts with Texas over the scope of his representation of the

SML sale meet the constitutional minimum requirements for specific jurisdiction.

“A nonresident’s contacts can give rise to either specific or general jurisdiction.”

Retamco Operating, 278 S.W.3d at 338. “Specific jurisdiction … arises when

(1) the defendant purposefully avails itself of conducting activities in the forum

state, and (2) the cause of action arises from or is related to those contacts or

activities.” Id. The specific jurisdiction analysis focuses on the relationship

between the defendant, the forum, and the litigation. Moncrief Oil, 414 S.W.3d at

150. There are three aspects to the purposeful availment analysis: first, only the

defendant’s contacts with the forum count, not the unilateral contacts of another;

second, the acts must be purposeful, not random, isolated, or fortuitous; third, the

defendant must seek some benefit, advantage, or profit by availing itself of the

jurisdiction. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785

(Tex. 2005). In addition, there must be a “substantial connection” between the

defendant’s contacts and the operative facts of the litigation. Moki Mac, 221

S.W.3d at 585.

6 Rolnick entered into a representation with the Plaintiffs that personally

benefitted him to the tune of at least $40,000. As Rolnick had previously formed

SML for Lantz, the trial court could have concluded that Rolnick was aware his

representation would involve the sale of Texas based assets and inventory at the

time he was hired. Rolnick chose to apply his legal expertise knowing there was a

strong probability he would have to consult Texas practitioners. Cf. Retamco

Operating, 278 S.W.3d at 340 (reasoning a defendant’s contacts with Texas were

not the unilateral result of a third-party’s actions because “[defendant] was a

willing participant in a transaction with an affiliated Texas company to purchase

Texas real property.”).

And indeed, after Rolnick suggested changing the law governing the

promissory note and security agreement to Texas law, Lantz asked Rolnick to

supervise Texas lawyers in ensuring the agreement was up to the standards of

Texas law. Rolnick apparently did not consider terminating his representation at

this point, but willingly continued his representation of Rolnick. Cf. Moncrief Oil,

414 S.W.3d at 153 (“Unlike in Michiana, the [defendants] had a ‘say in the

matter.’”). The evidence before the trial court shows that Rolnick communicated

with Jason Ray in Texas several times over a two month period to discuss the

issues in the transaction and to direct the scope of Ray’s representation regarding

his review of the sale documents. Approximately two months later, Rolnick issued

7 another directive to Ray: file the UCC-1 with the Texas Secretary of State’s office.

Rolnick entered into his representation knowing he would likely have contacts

such as the foregoing with Texas, and he derived benefits from that representation.

This makes his contacts with Texas deliberate, not fortuitous, and beneficial to

him.

One of the directives given by Rolnick to Ray was the instruction to file the

UCC-1 in Texas. The decision and directive to file the UCC-1 in Texas, and not

Delaware, is the basis for Plaintiffs’ lawsuit for legal malpractice and RAR’s third-

party petition. This satisfies the substantial connection test. It is also important to

note that whether these actions in fact breached a standard of care, and were thus

tortious, is not at issue at this point and this analysis properly focuses on Rolnick’s

actions alone. See Michiana, 168 S.W.3d at 792 (holding specific jurisdiction

cannot turn on whether the defendant’s contacts were tortious, rather than the

contacts themselves).

III. This Court’s Precedent Supports the Exercise of Jurisdiction over Rolnick This Court has previously confronted a similar set of circumstances and held

that the constitutional requirements for personal jurisdiction had been met. See

Rowland & Rowland, P.C. v. Tex. Emp’rs Indem. Co., 973 S.W.2d 432 (Tex.

App.—Austin 1998, no pet.). In Rowland, the defendant was a Tennessee law firm.

Id. at 433. The law firm represented the wife of a deceased trucker and their adult

8 children, all Texas residents, in wrongful death actions against the State of

Tennessee. Id. Before the filing the wrongful death suit, the wife had successfully

claimed benefits from her husband’s Texas workers’ compensation carrier. Id. The

carrier corresponded with the defendant law firm about its subrogation interest in

the Tennessee legislation for the benefits it had paid and expected to pay to the

spouse. Id. at 433–34. The firm sent a letter to the carrier promising to protect the

carrier’s subrogation claim without the necessity of the carrier’s intervention. Id. at

434. The firm successfully recovered on the claimant’s and her children’s wrongful

death claims. Id. But the firm, the wrongful death claimants, and the carrier could

not come to an agreement about whether the entire award was subject to the

carrier’s subrogation interest or just the spouse’s share. Id. The firm distributed

part of the award to some of the wrongful death claimants without the carrier’s

approval, and the carrier sued the firm for breach of contract, conversion, fraud,

and negligent misrepresentation. Id. The defendant law firm filed a special

appearance challenging the Texas court’s personal jurisdiction over it, and the

special appearance was denied.

This Court held the trial court properly exercised specific personal

jurisdiction over the law firm and affirmed the trial court’s order. Rowland, 973

S.W.2d at 435–37. The Court identified two purposeful contacts with Texas that

were sufficient to give rise to specific jurisdiction. Id. at 435–36. The first was the

9 letter sent directly from the firm to the carrier’s Texas office confirming that it

would continue to protect the plaintiff carrier’s subrogation interest without the

need for the carrier’s intervention in the wrongful death suit. Id. The second was

the distribution of a substantial portion of the wrongful death judgment to Texas

residents. Id. at 436. This distribution cut the carrier directly out of its statutory

right of recovery by distributing the recovery solely to the firm’s Texas clients. See

Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 38 (Tex. 2008) (“When an injured

worker settles a case without reimbursing a compensation carrier, everyone

involved is liable to the carrier for conversion—the plaintiffs, the plaintiffs'

attorney, and the defendants.”). The Court properly did not consider whether the

distribution was in fact tortious, but recognized that these contacts gave rise to the

operative facts of the litigation. See Rowland, 973 S.W.2d at 436.

In this case, Rolnick was the attorney in charge of handling the transaction

for the Plaintiffs, and Rolnick was paid a substantial sum for his representation.

Rolnick directed Ray in the course of Ray’s representation of the Plaintiffs. This

occurred through emails, letters, and telephone calls to Texas lawyers to direct

their representation of the plaintiffs. See Rowland, 973 S.W.2d at 436 (holding

firm’s representation to a Texas worker’s compensation carrier that it would

protect its subrogation interest, which occurred during its representation of its

Texas clients, supported specific jurisdiction); see also Walden v. Fiore, 134 S. Ct.

10 1115, 1123 (2014) (“To be sure, a defendant’s contacts with the forum State may

be intertwined with his transactions or interactions with the plaintiffs or other

parties.”). One of the directives given by Rolnick to Ray was the instruction to file

the UCC-1 in Texas. This concrete action and contact came about because Rolnick

directed it as part of his representation of the Plaintiffs. See Rowland, 973 S.W.2d

at 436 (holding allegedly tortious distribution of funds in derogation of worker’s

compensation lien was a contact supporting specific jurisdiction).

Despite A&G’s reliance on Rowland in the trial court, CR 359–71, RR 37–

40, Rolnick has not challenged Rowland’s applicability to this issue of personal

jurisdiction. Because he is unwilling to confront this Court’s precedent, the Court

should affirm on basis that Rolnick has waived any argument over the application

of Rowland to this case and should not permit him to challenge Rowland’s

application in any reply brief. See Howell v. Tex. Workers’ Comp. Comm’n, 143

S.W.3d 416, 439 (Tex. App.—Austin 2004, pet. denied). Admittedly, Rolnick may

have made a cryptic reference to Rowland in a footnote. See Appellant’s Brief

p. 16, n.6. In that note, he states that the Court should not rely on cases that apply a

“direct-a-tort” theory of jurisdiction because that theory was disapproved in

Michiana. To the extent that the note may be construed as challenging the

continuing validity of Rowland based on Michiana, A&G contends the cases are

distinguishable.

11 In Michiana, the nonresident defendant was a seller of motor homes in

Indiana that did not advertise in Texas or on the Internet. 168 S.W.3d at 784. The

company received an order via a single phone call for a customized motor home

from a Texas resident with delivery to be made in Texas. Id. The delivered motor

home allegedly did not meet the Texas buyer’s specifications, and he sued the

defendant for misrepresentations. Id.

The narrow question considered by the Court was whether “suit can be

brought in Texas based on a nonresident’s alleged misrepresentations in a

telephone call with a Texas resident.” Michiana, 168 S.W.3d at 784. The Court

held that jurisdiction based on a single, unsolicited phone call from a Texas

resident was constitutionally impermissible, emphasizing that the quality of that

single contact was insufficient to support jurisdiction. Id. at 787–92; see also

Retamco Operating, 278 S.W.3d at 340 (“Unlike in Michiana, where the contacts

with Texas and the sale at issue was ‘initiated entirely by the [plaintiff],’ …

Republic here went well beyond answering a phone call from a Texas resident or

shipping goods to Texas.”). In dismissing another argument in favor of

jurisdiction, the Michiana court emphasized that a defendant could not be sued in

Texas or allegedly fraudulent misrepresentations in a single phone call because the

trial court would be required to focus on the defendant’s intent, instead of his

actions when determining jurisdiction. See Michiana, 168 S.W.3d at 791; see also

12 id. at 790 (“[M]inimum-contacts analysis focuses solely on the actions and

reasonable expectations of the defendant.”).

Rowland is distinguishable from the direct-a-tort theory disapproved in

Michiana because the court relied on the out-of-state firm’s actions in Texas. First,

although the worker’s compensation carrier reached out to the firm initially, this

was only after the firm had agreed to represent Texas plaintiffs. Rowland, 973

S.W.2d at 435–36. Second, the court emphasized the (allegedly) wrongful

distribution of funds occurred in Texas. Id. at 436. These factors take the case well

outside of Michiana’s disapproval of a direct-a-tort theory of jurisdiction or

jurisdiction based on a single, unsolicited phone call.1

IV. Rolnick’s Arguments Misapply the Specific Jurisdiction Analysis Rolnick himself misapplies the proper jurisdictional analysis in two ways.

First, he offers a litany of “undisputed evidence”—mostly concerning contacts he

does not have with Texas—to show that he does not have sufficient minimum

contacts with Texas. See Appellant’s Brief, pp. 18-21. This is a misapplication of

the minimum contacts test for specific jurisdiction, which requires the analysis of

1 If the panel has concerns over the continuing viability of Rowland, Appellee requests that the Court consider the question en banc. See Ayeni v. State, 440 S.W.3d 707, 717 n.8 (Tex. App.— Austin 2013, no pet.) (Pemberton, J., concurring) (“We may not overrule a prior panel opinion of this court absent an intervening change in the law by the Legislature or a higher court or by decision of this court sitting en banc.”). 13 “the quality and nature of the defendant’s contacts, rather than their number.” 2

Retamco Operating, 278 S.W.3d at 339. By the same principle, the number of

contacts Rolnick does not have with Texas is irrelevant if the contacts he does

have are sufficient.

Rolnick’s second error is attempting to craft a special rule for lawyers that

would prevent lawyers from being sued in a forum other than where they

physically office and form their legal judgments. See Appellant’s Brief, pp. 16–18,

23–24. Rolnick’s proposed rule and application stem from overbroad readings of

the caselaw. The much more modest rule actually applied by Texas courts is that

“neither the mere existence of an attorney-client relationship between a resident

client and an out-of-state attorney not the routine correspondence and interactions

attendant to the relationship are enough to confer personal jurisdiction.” Proskauer

Rose, LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009 WL 242993 (Tex.

App.—Houston [14th Dist.] Feb. 3, 2009, no pet.) (mem. op.).

Moreover, as ably demonstrated in RAR’s brief, the cases cited by Rolnick

for his argument are all distinguishable on their facts.3 See Brief of Riggs, Aleshire

2 Rolnick’s litany of bullet points might be relevant if any party were asserting Texas courts could exercise general jurisdiction over him, which would require “continuous and systemic contacts with the forum … .” Moki Mac, 221 S.W.3d at 575. That is not the case here. 3 Abilene Diagnostic Clinic, PLLC v. Paley, Rothman, Goldstein, Rosenburg, Eig & Cooper, Chartered, 364 S.W.3d 359 (Tex. App.—Eastland 2012, no pet.); Ahrens & De Angeli, P.L.C. v. Flinn, 318 S.W.3d 474 (Tex. App.—Dallas 2010, pet. denied); Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325 (Tex. App.—Fort Worth 2009, no pet.); Proskauer Rose, LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009 WL 242993 (Tex. App.—Houston [14th Dist.] Feb. 3, 14 & Ray, P.C., pp. 18–22. In the cases cited by Rolnick, the out-of-state lawyers

performed their legal work out of state and communicated it to clients or other

persons in Texas. But unlike those cases, Rolnick acted to effectuate his legal

judgment in Texas, thus creating contacts in Texas that support the exercise of

jurisdiction over him. Nor were those other lawyers specifically tasked with

directing the activities of persons acting in Texas as part of representing their

clients. The communications Rolnick had with Ray were therefore not the normal

interactions between a client and his lawyer.

V. The Exercise of Jurisdiction Over Rolnick Does Not Offend Traditional Notions of Fair Play and Substantial Justice Once it has been decided that a defendant purposefully established such

minimum contacts within the forum state, the defendant must present a compelling

case that the presence of some other considerations would render jurisdiction

unreasonable. Guidry v. U.S. Tobacco Co., 188 F.3d 619, 630 (5th Cir. 1999)

(internal quotation marks removed). “Only in rare cases, however, will the exercise

of jurisdiction not comport with fair play and substantial justice when the

nonresident defendant has purposefully established minimum contacts with the

forum state.” Guardian Royal Exch. Assurance, Ltd. v. English China Clays,

P.L.C., 815 S.W.2d 223, 231 (Tex. 1991). When determining the fundamental

fairness issue, the court should examine (1) the defendant’s burden; (2) the forum

2009, no pet.) (mem. op.); Markette v. X-Ray, X-Press Corp., 240 S.W.3d 454 (Tex. App.— Houston [14th Dist.] 2007, no pet.). 15 state’s interests; (3) the plaintiff’s interest in convenient and effective relief; (4) the

judicial system’s interest in efficient resolution of controversies; and (5) the shared

interest of the several states in furthering fundamental substantive social policies.

Id.

The plaintiffs and the resident defendants in this case have a strong interest

in Rolnick’s appearance in this forum. Rolnick directed Ray to file the UCC-1 in

Texas. If there is any liability on the part of any of the resident defendants, it likely

stems in part from this instruction. If Rolnick is dismissed from this proceeding,

Plaintiffs would have to file suit against him in Florida where he cannot sue the

Texas law firm defendants. Or in the event that any of the resident defendants are

found liable, they would have to pursue actions against Rolnick in a separate

proceeding in Florida. This proceeding in Texas provides the most effective relief

to the plaintiffs and the resident defendants. See Guidry, 188 F.3d at 631

(“Obviously the Guidrys have a strong interest in obtaining the convenient and

efficient relief that can only be provided by a single lawsuit in their domicile

against all defendants allegedly liable for the indivisible injuries the plaintiffs have

suffered.”); see also World-Wide Volkswagon Corp v. Woodson, 444 U.S. 286, 292

(1980) (reasoning that the Plaintiff’s interest in obtaining convenient and efficient

relief is an appropriate factor to consider when the plaintiff’s power to choose the

forum cannot adequately protect that interest). The judicial system’s interest in the

16 efficient resolution of controversies weighs in favor of jurisdiction for the same

reasons. See Guidry, 188 F.3d at 631 (“Moreover, the judicial system’s concerns

for the efficient resolution of controversies preponderates in favor of a single

litigation inclusive of all defendants whose allegedly intentional and tortious acts

have coalesced to injure the plaintiffs.”).

Rolnick, again, emphasizes that he is not a resident of Texas. This fact is not

determinative. See Moncrief Oil, 414 S.W.3d at 155 (“Subjecting the Gazprom

Defendants to suit in Texas certainly imposes a burden on them, but the same can

be said of all nonresidents. Distance alone cannot ordinarily defeat jurisdiction.”);

Rowland, 973 S.W.2d at 436 (“[T]he mere fact that Rowland & Rowland is not

physically located in Texas is not persuasive in deciding personal jurisdiction.”).

Nor has he shown that litigating his liability in Texas in will present an

unreasonable burden on him. See Guidry, 188 F.3d at 630. Florida may have an

interest in regulating Rolnick’s professional behavior, but so too does Texas where

the effects of Rolnick’s representation have been felt because the Texas assets that

should have been secured were not. See Moncrief Oil, 414 S.W.3d 142 (Tex. 2013)

(noting the Supreme Court has recognized “‘it is beyond dispute that [a forum] has

a significant interest in redressing injuries that actually occur within the State.’”)

(quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984)). Moreover,

Rolnick’s directives may have caused Texas lawyers to become liable for

17 professional malpractice, and Texas has an interest in regulating the legal

profession within its borders. See Guardian Royal, 815 S.W.2d at 231 (noting

“[t]he state’s regulatory interests are also an important consideration in deciding

whether the exercise of jurisdiction is reasonable”).

CONCLUSION & PRAYER

For the foregoing reasons, Appellee Adams and Graham prays that this court

overrule the Appellant’s issues, affirm the trial court’s order denying Defendant’s

special appearances, and grant any further relief to which it may be justly entitled

under law or equity.

Respectfully submitted,

VALDEZ JACKSON & TREVIÑO, P.C. Plaza Las Campanas 1826 N. Loop 1604 W. Suite 245 San Antonio, Texas 78248 Phone: 210-598-8686 Fax: 210-598-8797

/s/ Robert E. Valdez Robert E. Valdez State Bar No. 20428100 Joseph E. Cuellar State Bar No. 24082879

18 CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word 2010, this brief contains

4,327 words, excluding the portions of the brief exempt from the word count under

Texas Rule of Appellate Procedure 9.4.

/s/ Robert E. Valdez Robert E. Valdez

CERTIFICATE OF SERVICE

On August 5, 2015 and pursuant to Texas Rule of Appellate Procedure 9.5, I

electronically filed this Brief of Appellee Adams & Graham, L.P. with the Clerk of

the Court using the eFile.TXCourts.gov electronic filing system which will send

notification of such filing to the following:

J. Hampton Skelton Craig S. Hilliard Brandon Gleason STARK & STARK SKELTON & WOOD A Professional Corporation 248 Addie Roy Road, Suite B-302 P.O. Box 5315 Austin, Texas 78746 Princeton, New Jersey 08543-2315 Attorneys for Plaintiffs/Appellees Attorneys for Plaintiffs/ Appellees

Michael B. Johnson Scott R. Kidd THOMPSON COE, COUSINS & IRONS, Scott V. Kidd L.L.P. KIDD LAW FIRM 701 Brazos, Suite 1500 819 W. 11th Street Austin, Texas 78701 Austin, Texas 78701 Attorneys for Defendant/Appellee Attorneys for Defendant/Appellee Riggs Blazier, Christensen, Bigelow & Virr, Aleshire & Ray, P.C. P.C.

19 Ruth Malinas Tim T. Griesenbeck Scott M. Noel PLUNKETT & GRIESENBECK, INC. 1635 N. E. Loop 410 Suite 900 San Antonio, Texas 78209 Attorneys for Defendant/Appellant Herbert Rolnick

/s/ Robert E. Valdez Robert E. Valdez