Karen E. Landa v. Charles L. Farris

Opinion

ACCEPTED 03-15-00497-CV 7774271 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/10/2015 5:02:33 PM JEFFREY D. KYLE CLERK Case Number 03-15-00497-CV

IN THE THIRD DISTRICT COURT OF APPEALS FILED IN 3rd COURT OF APPEALS at Austin AUSTIN, TEXAS 11/10/2015 5:02:33 PM JEFFREY D. KYLE KAREN E. LANDA, Clerk

Appellant,

v.

CHARLES L. FARRIS,

Appellee.

From Cause No. D-1-GN-14-004469 in the 98th Judicial District Court Of Travis County, Texas

APPELLEE’S BRIEF

THE CRONFEL FIRM Guillermo Ochoa-Cronfel State Bar No. 15175600 2700 Bee Caves Road, Suite 103 Austin, Texas 78746 Telephone: (512) 347-9600 Facsimile: (512) 347-9911 Guillermo@thecronfelfirm.com

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED

November 10, 2015 Table of Contents

INDEX OF AUTHORITIES…………………………………………………...…...3

STATEMENT OF THE CASE………………………………………………..……7

STATEMENT REGARDING ORAL ARGUMENT…………………..………..…8

ISSUES PRESENTED..............................................................................................9

STATEMENT OF FACTS…………………………………………………...…...10

SUMMARY OF THE ARGUMENT………………………………….………..…13

ARGUMENT AND AUTHORITIES…………………………………………..…14

A. Standard of Review………………………………………...……...…....14

B. The Texas long-arm statute……………………………………………..18

C. Landa did not preserve any error with respect to whether or not Farris met his initial burden to bring her under the Texas long-arm statute. Moreover, Farris’s First Amended Petition contains sufficient personal jurisdictional allegations to meet that initial burden. (Reply to Appellant’s Issue 1)..................................................................................19

D. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed. Moreover, there is legally and factually sufficient evidence in the record to support a finding by the trial court that it has specific jurisdiction over Landa. (Reply to Appellant’s Issue 2)…………………………………………………………………….….23

E. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed. Moreover, there is legally and factually sufficient evidence in the record to support a finding by the trial court that it has general jurisdiction over Landa. (Reply to Appellant’s Issue 3)……………………………………………………………….…….…34

CONCLUSION…...................................................................................................38

[1] PRAYER.................................................................................................................39

Certificate of Compliance........................................................................................41

Certificate of Service...............................................................................................41

Appendix.................................................................................................................42

[2] INDEX OF AUTHORITIES

Page(s)

Cases

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002)………………….……..14, 15, 16, 18, 26, 27, 36

Benoit v. Wilson, 279 S.W.2d 792 (Tex. 1951)………………………………………………..17

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)……………………………………………...……..26, 27

CSR Ltd. v. Link, 925 S.W.2d 591 (Tex. 1996)…………………………………………....27, 36

Carney v. Roberts Inv. Co., 837 S.W.2d 206 (Tex.App.-Tyler 1992, writ denied)……………………….16

Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269 (Tex.App.-Houston [14th Dist.] 2009, no pet.)………………………………………………..26, 27, 31, 32, 33

Daimler AG v. Bauman, 134 S.Ct. 746 (2014)………………………………………………………..14

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)………………………………………………..23

Ennis v. Loiseau, 164 S.W.3d 698 (Tex.App.-Austin 2005, no pet.)……...15, 16, 17, 19, 20, 22

French v. Glorioso, 94 S.W.3d 739 (Tex.App.-San Antonio 2002, no pet.)…………………16, 17

GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G. v. Varme, 991 S.W.2d 785 (Tex. 1999)……………………………………………......20

[3] Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223 (Tex. 1991)…………………….…………….…….18, 19, 27

Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884 (Tex.App.-Houston [1st Dist.] 1995, no writ)..…….….23, 25

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984)………………………………………………….....26, 27

Helitrans Company v. Rotorcraft Leasing Co., LLC, No. 01-13-00145-CV, 2015 WL 593310 (Tex.App.-Houston [1st Dist.] Feb. 12, 2015, no pet.)(mem.op)……………………………..…………23, 24

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 739 (Tex. 1992)………………………………………………..16

In re D.M.D., No. 04-09-00370-CV, 2009 WL 4861171 (Tex.App.-San Antonio Dec. 16, 2009, no pet.)(mem.op)……………………………………………24

In re W.E.R., 669 S.W.2d 716 (Tex. 1984)…………………………………………..........16

Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)………………………………………………………...26

Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex. 1985)………………………..…..…………..15, 19, 20

McDonald v. Dankworth, 212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)………………………….17

McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965)………………………………………………..15

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005)………………………………….....26, 27, 32, 33

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007)………………………………………..26, 27, 36 [4] Nogle & Black Aviation, Inc. v. Favaretto, 290 S.W.3d 277 (Tex.App.-Houston [14th Dist.] 2009, no pet.)…………....32

PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163 (Tex. 2007)………………………………………………..14

Pillai v. Pillai, No. 07-14-00379-CV, 2015 WL 1221394 (Tex.App.-Amarillo March 16, 2015, no pet.)(mem.op)……………….……...…29, 30, 31, 33, 34

Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989)…………………………………….………….17

Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986)………………………………………………..17

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009)…………………………………………....33, 34

Ryan v. Abdel-Salam, 39 S.W.3d 332 (Tex.App.-Houston [1st Dist.] 2001, pet. denied)…………..25

Sisters of Incarnate Word, Houston, Tex. v. Gobert, 992 S.W.2d 25 (Tex.App.-San Antonio 1997, no pet.)……………..……….23

Small v. Small, 216 S.W.3d 872 (Tex.App.-Beaumont 2007, pet. denied)……….…….25, 26

Standard Fire Ins. Co. v. Morgan, 745 S.W.2d 310 (Tex. 1987)……………………………………………….16

Turner Schilling, L.L.P. v. Gaunce Mgmt., 247 S.W.3d 447 (Tex.App.-Dallas 2008, no pet.)……………………....32, 33

U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex. 1977)……………………………………..….….18, 19

Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)………………………………………………..16

[5] Wright v. Sage Engineering, Inc., 137 S.W.3d 238 (Tex.App.-Houston [1st Dist.] 2004, pet. denied)…….15, 22

Wyatt v. Wyatt, 104 S.W.3d 337 (Tex.App.-Dallas 2003, no pet.) ……………………..…..17

Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662 (Tex. 1987)………………………………………………..16

Statutes, Rules and Other Authorities

Tex. Civ. Prac. & Rem. Code §§17.041-.045……………………………..……….18

Tex. Civ. Prac. & Rem. Code §17.042…………………………………….….…...18

Tex. Civ. Prac. & Rem. Code §51.014(a)(7)………………………………...….…15

Tex. R. App. P. 9.4(i)…...........................................................................................41

Tex. R. App. P. 28.1(c)…………......…………………………………...............…..7

Tex. R. App. P. 38.1(h)…………......…………………..…..............9, 13, 14, 23, 34

[6] STATEMENT OF THE CASE

Nature of the case: Plaintiff/Appellee Charles L. Farris (“Farris”) made numerous loans to Defendant/Appellant Karen E. Landa (“Landa”) from late 2010 through February, 2011, including a loan of approximately $90,000.00, which Landa utilized as the down payment on a purchase of real property in Iowa. After attempting, unsuccessfully, to obtain repayment of the above- referenced loans, Farris brought suit against Landa alleging breach of contract, fraud/fraud in the inducement, and quantum meruit.

The course of the Landa filed her Special Appearance on December proceedings below: 22, 2014. The parties conducted discovery limited to the issues relating to Landa’s Special Appearance, and the trial court conducted a hearing on Landa’s Special Appearance on July 2, 2015, during which the trial court heard and considered the testimony of both Farris and Landa, as well as the documentary evidence admitted by the parties.

The trial court’s On July 21, 2015, the trial court entered its Order disposition of the Denying Special Appearance of Defendant, Karen case: E. Landa. Landa perfected this appeal by timely filing her notice of appeal on August 6, 2015. On August 11, 2015, Landa filed a Motion for Enlargement of Time Pursuant to Rule 5, and attendant Request for Findings of Fact and Conclusions of Law. On August 12, 2015, the trial court granted Landa’s extension request, and declined to issue findings of fact and conclusions of law pursuant to Tex. R. App. P. 28.1(c). Landa subsequently filed; a Supplemental Request; a Notice of Past Due Findings of Fact and Conclusions of Law; and, an Amended Notice Concerning Findings of Fact and Conclusions of Law. The trial court did not issue findings of fact and conclusions of law.

[7] STATEMENT REGARDING ORAL ARGUMENT

This appeal involves the denial of Appellant Landa’s Special Appearance,

which by its nature turns on the jurisdictional touchstone of ‘purposeful availment’.

Oral argument would assist the Court in analyzing this fact-specific inquiry based

on the realities of the particular dispute.

[8] ISSUES PRESENTED

Reply to Issue 1: Landa did not preserve any error with respect to whether or not Farris met his initial burden to bring her under the Texas long- arm statute. Moreover, Farris’s First Amended Petition contains sufficient personal jurisdictional allegations to meet that initial burden.

Reply to Issue 2: Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed. Moreover, there is legally and factually sufficient evidence in the record to support a finding by the trial court that it has specific jurisdiction over Landa.

Reply to Issue 3: Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed. Moreover, there is legally and factually sufficient evidence in the record to support a finding by the trial court that it has general jurisdiction over Landa.

[9] to Plaintiff's claims in this case, Defendant has and has had long-standing, systematic and continuous

contacts with Texas. Plaintiff has carried his initial burden with respect to his jurisdictional

allegations.

II.

As the plaintiffhas carried his burden with respect to the jurisdictional allegations, the burden

now falls on the defendant challenging this Texas court's personal jurisdiction over her to negate all

jurisdictional bases. BMC Software, 83 S.W.3d at 793, citing Kawasaki Steel Corp. v. Middleton,

699 S.W.2d 199, 203 (Tex. 1985). Defendant's bare-bones pleading, containing only conclusory

statements (many of which are demonstrably false), attested to via verification, is insufficient to

accomplish this task. See, Tex. R. Civ. P. 120a(3); Small v. Small, 216 S.W.3d 872, 876-877

(Tex.App.-Beaumont 2007, pet. denied).

"A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First,

the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of

jurisdiction must be consistent with federal and state constitutional guarantees of due process."

Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990), citing Tex. Civ. Prac. & Rem. Code §§s

17.041- 17.069.

The Texas long arm-statute states in pertinent part, "In addition to other acts that may

constitute doing business, a nonresident does business in this ifthe nonresident: (1) contracts by mail

or otherwise with a Texas resident and either party is to perform the contract in whole or in part in

this state; (2) commits a tort in whole or in part in this state ... " Tex. Civ. Prac. & Rem. Code

§17.042. And importantly, " ... section 17.042's broad language extends Texas courts' personal

jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" BMC

[2]

24 containers in Austin, Travis County, Texas, through at least December, 2010, at a

cost of $1,500+ per month. II RR 39-41. During late 2010 and early 2011, while

staying with her mother, Landa continued to look for her own place in Iowa. II RR

41.

It was during late November/December, 2010, that Landa and Farris discussed

Farris providing Landa money for the down payment on a home. Landa testified

that she began discussing with Farris the idea of her trying to find a home in Iowa in

November of 2010, which led to further discussions between the two of them during

a weekend meeting in Dallas, Texas in December, 2010. II RR 46-48 & 50-51.

Farris testified that at the referenced December, 2010, weekend meeting the parties

discussed for the first time Landa seeking money for the down payment on a home

in Iowa, and reached an agreement regarding Farris’s loaning money to Landa for

that prospective down payment on a home. II RR 96-98. Moreover, from December,

2010, through February, 2011, Landa engaged in discussions with Farris regarding

numerous aspects of his provision of the money for the down payment in person, via

e-mail, and via telephone. II RR 65-66. Landa further represented to Farris that part

of their agreement regarding the down payment funds provided by Farris was that

Farris’s name would appear on the deed for the house, but despite Landa’s

representation, Farris’s name was stricken from the deed. II RR 66. Ultimately,

[11] IV.

Amongst Defendant's attempts to negate the court's jurisdictional bases in this matter is her

sworn statement that, "Defendant does not now engage and has not engaged in business in Texas or

committed any tort, in whole or in part, within the state." Defendant's Special Appearance, -,r 2(b).

Plaintiff's testimony at the hearing on Defendant's Special Appearance will mirror the allegations in

his pleadings in this respect; chiefly, that he and Defendant entered into a loan agreement (in Texas)

whereby he would loan Plaintiff the funds at issue herein, and further, perform his obligations under

said agreement in whole or in part in Texas. Moreover, Defendant's P 1 Amended Responses to

Plaintiff's 1st Set of Discovery Requests also demonstrate the falsity ofDefendant' s above-described

statement. For example, in response to Requests for Admission Nos. 13-17, Defendant admits that;

(i) Karen Landa Insurance is a d/b/a of Defendant; (ii) as recently as 2014, Karen Landa Insurance

was a member of and/or sponsor ofthe Westlake Hills Chamber of Commerce; (iii) from (at least)

January, 2010 through March 13, 2015, Defendant held an active insurance license with the Texas

Department oflnsurance 1 ; and, (iv) within the last ten (1 0) years, Defendant served on the Board of

Directors of Austin Hospice Community Foundation. See First Amended Responses to First Set of

Discovery Requests to Defendant Karen E. Landa, attached hereto and incorporated herein as

Exhibit "A". By Defendant's own admission, and the testimony of Plaintiff, Plaintiff will

demonstrate that Defendant has engaged in business in the State of Texas, including the business at

issue in this matter.

Likewise, Defendant's sworn, conclusory statements that; "Defendant has no substantial

connection with Texas arising from any action or conduct ofDefendant purposefully directed toward

[6]

28 SUMMARY OF THE ARGUMENT

The trial court did not commit any reversible errors in denying Landa’s

Special Appearance. First, Landa’s complaint regarding the sufficiency of Farris’s

jurisdictional allegations for the purposes of the Texas long-arm statute fails as; (i)

Landa did not properly preserve any potential error in this respect; and, (ii) assuming

arguendo that she had properly preserved any such potential error, Farris’s

jurisdictional allegations are clearly sufficient to meet the requirements of the Texas

long-arm statute and ‘notice’ pleading. That is, Landa failed to properly preserve

any potential error on this point, and moreover, the trial court did not commit error

in finding that Farris met the requirements for jurisdictional allegations that would

properly invoke the Texas long-arm statute, thus requiring Landa to negate all bases

for personal jurisdiction.

Second, Landa’s complaint regarding the trial court’s finding of personal

jurisdiction on the basis of specific jurisdiction also fails, as; (i) Landa has waived

this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed;

and, (ii) there was legally and factually sufficient evidence adduced at the hearing

on Landa’s Special Appearance demonstrating the minimum contacts necessary for

such a finding. Accordingly, the trial court did not err to the extent its denial of

Landa’s Special Appearance is based on a finding of specific jurisdiction.

[13] Finally, Landa’s complaint regarding the trial court’s finding of personal

jurisdiction on the basis of general jurisdiction also fails, as again; (i) Landa has

waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately

briefed; and, (ii) there was legally and factually sufficient evidence adduced at the

hearing on Landa’s Special Appearance demonstrating the minimum contacts

necessary for such a finding. Additionally, with respect to this point of error, Landa

overstates the Supreme Court’s recent holding(s) on general jurisdiction in Daimler

AG v. Bauman, and further misassociates the Texas Supreme Court’s holding(s) in

PHC-Minden, L.P. v. Kimberly-Clark Corp., with the notion that the door has been

“all but shut” on general jurisdiction based on a defendant’s contacts with the forum,

when those contacts are not related to the claim. 2 Accordingly, the trial court did

not err to the extent its denial of Landa’s Special Appearance is based on a finding

of general jurisdiction.

In sum, the trial court did not commit any reversible error in denying

Defendant’s Special Appearance.

ARGUMENT AND AUTHORITIES

A. Standard of Review.

“The plaintiff bears the initial burden of pleading sufficient allegations to

2 Daimler AG v. Bauman, 134 S.Ct. 746 (2014); PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163 (Tex. 2007). [14] bring a nonresident defendant within the provisions of the long-arm statute.” BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002), citing

McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965). In the instant case, the trial

court found, explicitly and implicitly, that plaintiff carried this burden. II RR 31;

CR 31. Once the plaintiff has met this burden, the burden shifts to the defendant

challenging jurisdiction to negate all jurisdictional bases. BMC Software, 83 S.W.3d

at 793, citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985).

In an interlocutory appeal of a trial court’s order denying a special appearance,

the appellate court reviews de novo the question of whether a court has personal

jurisdiction over a defendant, as this is a question of law. Ennis v. Loiseau, 164

S.W.3d 698, 706 (Tex.App.-Austin 2005, no pet.), citing Tex. Civ. Prac. & Rem.

Code §51.014(a)(7); BMC Software, 83 S.W.3d at 794. Notwithstanding this,

“Questions of fact must frequently be resolved by the trial before reaching the

jurisdictional inquiry,” and “While a special appearance is not the appropriate stage

to make a determination on liability, we must consider facts regarding the

defendant’s actions that could foreseeably cause harm in Texas in order to determine

whether the defendant should have anticipated being haled into a Texas court.”

Ennis, 164 S.W.3d at 706, citing BMC Software, 83 S.W.3d at 794; Wright v. Sage

Engineering, Inc., 137 S.W.3d 238, 251 (Tex.App.-Houston [1st Dist.] 2004, pet.

denied).

[15] 47

1 A. When I got to Iowa -- I needed to do 2 something with my belongings, and so I talked to 3 Lee -- 4 Q. (BY MR. SCARBOROUGH) The question -- 5 A. -- probably November of 2014 -- or 2000 -- 6 excuse me. It would have been the day I got there. 7 2010. 8 Q. November of 2014? 9 A. November -- 10 Q. Excuse me. We both misspoke. 11 A. I know. 12 Q. Let's go back. It was -- you're saying 13 it's November of '10 -- 14 A. Yes, after I got back to Iowa. 15 Q. -- is the first time there was ever any 16 discussion? 17 A. Yes. Yes, sir. 18 Q. Okay. Now, let's talk real briefly about 19 the trip to Dallas. You understand that -- well, let 20 me ask it this way: By this time frame, December of 21 2010, how long had you been divorced from the 22 plaintiff? 23 A. For a number of years. 24 Q. '91? 25 A. Since '91 to current. 48

1 Q. So 19 years? 2 A. Yeah, 19 years plus. 3 Q. Had y'all continued to have a relationship? 4 A. He adopted my first child, and we had 5 another child together. And so even though we've 6 been divorced, we've been in constant contact because 7 of the kids. 8 Q. What conversation did you have with the 9 plaintiff about where you would first meet? Was it 10 Dallas or somewhere else? 11 A. It was brought -- I told Lee I was trying 12 to find a place for me to be able to stay while I was 13 in Iowa, and I was surprised at how reasonable the 14 costs were on houses. I couldn't find a rental 15 house, but I talked to him that I was looking at 16 properties or a place that I could go. And so that 17 would have been in November of 2010. 18 But -- would you repeat the question? 19 I'm not sure what I'm -- I was trying to respond. 20 Q. I was checking on my time, and I'm not even 21 for sure that it was responsive. Let me try to move 22 on. I don't want to take too much time. 23 Yeah, the question I was asking is, 24 did you have a conversation with Mr. Farris about him 25 coming to Iowa to discuss this? 50

1 A. Yes, sir, it was. 2 Q. Did you meet him in Dallas? 3 A. I did. 4 Q. Did you spend a weekend there together? 5 A. I did. 6 Q. Stayed in the same hotel or motel room? 7 A. Yes, sir, we did. 8 Q. From when to when? 9 A. It was the weekend before Christmas. And 10 it was -- he picked me up on a Friday and took me 11 back to the airport at DFW on Sunday morning. 12 Q. At that point in time did you -- had you 13 found the condo that you wanted to buy and ultimately 14 bought in February of '11? 15 A. I had found a number of properties, but 16 there wasn't a specific property that I was trying to 17 focus on. 18 Q. My question that you didn't answer is, had 19 you found the specific one that you bought in 20 February? 21 A. I'd seen it, yes, sir. 22 Q. You'd seen it. 23 A. Yes. 24 Q. Okay. Did you -- so you had a number of 25 properties? Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.

1991); U-Anchor Adver., 553 S.W.2d at 762.

C. Landa did not preserve any error with respect to whether or not Farris met his initial burden to bring her under the Texas long-arm statute. Moreover, Farris’s First Amended Petition contains sufficient personal jurisdictional allegations to meet that initial burden. (Reply to Appellant’s Issue 1).

Landa’s proposed first point of error, regarding the sufficiency of Farris’s

jurisdictional allegations, is waived as she did not raise it at the trial court, “In order

to preserve error for appeal, a party must make a timely objection ‘with sufficient

specificity to make the trial court aware of the complaint’ and obtain a ruling on the

record.” Ennis, 164 S.W.3d at 703, citing Tex. R. App. P. 33.1. Further,

“…defective jurisdictional allegations…must be challenged by a motion to quash,

not a special appearance.” Kawasaki Steel, 699 S.W.2d at 203. In Ennis, this Court

examined Kawasaki and determined that in “reading Kawasaki as a whole” a motion

to quash was not required in order to preserve a complaint regarding jurisdictional

allegations. Ennis, 164 S.W.3d at 704-705.

Nevertheless, Ennis does not stand for the proposition that Landa need not

have complained at all about the sufficiency of Farris’s jurisdictional allegations at

the trial court level in order to preserve a point of error related to same. In fact, the

Ennis court noted amongst the complaints in Ennis’s special appearance the

assertion that the plaintiff’s “jurisdictional pleadings were insufficient”. Ennis, 164

[19] S.W.3d at 702. Moreover, in a case decided by the Texas Supreme Court after

Kawasaki (but predating Ennis) the Court said regarding Kawasaki, “…we did not

hold that a party waives a due process challenge for want of minimum contacts by

challenging the method of service in the special appearance. To the contrary,

although the defendant in Kawasaki had challenged the method of service in its

special appearance, we did not suggest that the defendant had thereby waived its

contest to jurisdiction based on minimum contacts.” GFTA Trendanalysen B.G.A.

Herrdum GMBH & Co., K.G. v. Varme, 991 S.W.2d 785, 786 (Tex. 1999). That is,

to the extent Ennis is a correct interpretation of the Texas Supreme Court’s ultimate

holding in Kawasaki regarding whether or not a motion to quash is required in order

to preserve a point of error related to the sufficiency of a plaintiff’s jurisdictional

allegations, the way to preserve such error is to raise it in the special appearance.

In the instant case, Landa did not raise the issue of a potential defect in Farris’s

jurisdictional allegations in her Special Appearance. CR 9-10. Landa also failed to

articulate a complaint regarding this issue at the hearing on her Special Appearance.

In fact, on this point Landa’s counsel made only the following remarks:

Mr. Scarborough: All right. Your Honor, as Mr. Cronfel and I have discussed in this case, the burden – initial burden is on him to plead sufficient facts. The Texas Supreme Court in the Kelly case in 2010 says, if – and that’s a determination for the Court. If he has not and we’ve proved that she is – the defendant is a resident of another state, which she is, in Iowa, that that’s the end of the case. Now, what I’ve told Mr. Cronfel is this: I’ve assumed that the Court would [20] either find that the pleadings are sufficient, or would carry that along, and that the burden immediately shifts to the defendant to prove and negate the facts of the case. So I want to make a short opening statement before we go any further.

The Court: Are you okay with that, Mr. Ochoa-Cronfel?

Mr. Ochoa-Cronfel: Yes, ma’am.

The Court: Okay. Go ahead. --II CR 8-9.

Mr. Ochoa-Cronfel: Your honor, one housekeeping matter: I’m assuming, because we’re proceeding in this manner, that the Court is – has taken the position that our pleadings meet the initial burden?

The Court: Correct.

Mr. Ochoa-Cronfel: Correct. Thank you very much, Your Honor.

The Court: I mean, I think that Mr. Scarborough pretty much granted that.

Mr. Scarborough: Actually, what I said was I assume the Court would either grant it or carry it along. And as I’ve not heard on the record a ruling on that, so I’m assuming you’re carrying it.

The Court: Okay. I’ll carry it on. But I’m assuming that you’ve met that. --II CR 31.

Mr. Scarborough: Since the burden of proof is on me, I get the last word. --II CR 135.

The foregoing demonstrates that Landa also did not raise a complaint as to the

sufficiency of Farris’s jurisdictional allegations during the hearing on her special

[21] appearance. In fact, the trial court believed that Landa had conceded that point. As

such, Landa waived any purported error in this regard.

Assuming arguendo that Landa did preserve this point of error, it still fails, as

Farris satisfied his burden of pleading sufficient jurisdictional allegations to subject

Landa to personal jurisdiction. In determining whether Farris met this burden, his

original pleadings, as well as his response to Landa’s Special Appearance can be

considered by the Court. Ennis, 164 S.W.3d, at 705, citing Wright, 137 S.W.3d at

249 n. 7.

As was the case in Ennis, here Farris’s live pleading alleged a number of facts

upon which Landa could be subjected to personal jurisdiction, including, but not

limited to the following:

1. Landa engaged in business and committed torts in the State of Texas; 2. Landa entered into an agreement with a Texas resident, Farris; 3. Landa and Farris both performed on said agreement, in whole or in part, in Texas; 4. Landa made misrepresentations to Farris in Texas, in order to induce Farris’s performance; 5. Landa communicated via telephone, text, e-mail, regular mail, and in- person with a Texas resident, Farris, regarding said agreement; 6. Landa profited from her involvement with Farris, to his detriment; 7. Landa resided and worked in Austin for the better part of the last twenty-plus years, up to and including parts of 2013-2014; and, 8. Landa maintained an active insurance license with the Texas Department of Insurance from April, 1987 through April, 2015, including owning and operating her own insurance agency in Austin as recently as 2014. --CR 15-22, Plaintiff’s First Amended Original Petition.

[22] Additionally, Farris also filed a response to Landa’s Special Appearance which

further detailed why the court had personal jurisdiction over Landa. CR 23-30.

Therefore, Farris satisfied his initial burden of pleading a sufficient basis upon

which to subject Landa to personal jurisdiction, and the burden then shifted to Landa

to negate all bases for personal jurisdiction. Thus, the trial court did not commit

error in this regard.

D. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed. Moreover, there is sufficient evidence in the record to support a finding by the trial court that it has specific jurisdiction over Landa. (Reply to Appellant’s Issue 2).

Initially, with respect to her second point of error, Landa has failed to

adequately brief same as required by Tex. R. App. P. 38.1(h), and thus, has waived

this point of error. “A party asserting error on appeal bears the burden of showing

that the record supports the contention raised, and of specifying the place in the

record where matters upon which she relies or of which she complains are shown.

Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886-87 (Tex.App.-

Houston [1st Dist.] 1995, no writ); Tex. R. App. P. 38.1(h). Where this burden is not

carried, the party waives the point of error. Happy Harbor, 903 S.W.2d at 886-87.”

Sisters of Charity of Incarnate Word, Houston, Tex. v. Gobert, 992 S.W.2d 25, 31

(Tex.App.-San Antonio 1997, no pet.), disapproved of on other grounds by

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005); see also,

Helitrans Company v. Rotorcraft Leasing Co., LLC, No. 01-13-00145-CV, 2015 WL [23] 593310, at *3 (Tex.App.-Houston [1st Dist.] Feb. 12, 2015, no pet.) (mem.op.); In re

D.M.D., No. 04-09-00370-CV, 2009 WL 4861171, at *2 (Tex.App.-San Antonio

Dec. 16, 2009, no pet.) (mem.op.).

As alluded to in Section A, above, Landa has failed to cite to or analyze any

of the evidence considered by the trial court that would tend to support its implied

findings of fact on this jurisdictional question. In fact, in her discussion on this point

of error Landa provides only three (3) citations to the reporter’s record which

ostensibly support her desired interpretation of the evidence, as opposed to

addressing how the evidence fails to support the trial court’s implied findings. Two

of those citations are to her own testimony and one is to Farris’s, and even those

scant citations to the record are mischaracterized. That is:

1. Landa cites Farris’s testimony at II RR 116 in support of the propositions that no contract was entered into by the parties in Dallas because, “…the Parties did not know the amount, the house, or even if a house would be purchased.” In fact, Farris’s testimony at that citation was only that the parties’ meeting in Dallas involved discussions regarding an agreement for him to provide Landa money for her closing on a house in Iowa.

2. Landa cites her own testimony at II RR 52 in support of the propositions that, “…Landa was in Iowa when: (1) she chose the house that would be purchased; (2) decided how much money would be needed; and (3) all negotiations with the lender took place.” However, to the extent Farris was involved at all in negotiations with an additional lender in Iowa, Landa’s own testimony in this regard is that such discussions took place, for Mr. Farris’s part, in Austin. See also II RR 65-66.

3. Landa cites her own testimony at II RR 30 in support of the proposition that, “…the transaction was closed in Iowa.” But this misses the point entirely, as the transaction she is referring to is her closing on the house in Iowa. The [24] 92

1 I was going to ask one or two 2 questions, and I'm going to be done. 3 THE COURT: Okay. Overruled. 4 What number do you have? 5 MR. OCHOA-CRONFEL: No. 4, Your Honor. 6 THE COURT: 4 will be admitted. 7 (Plaintiff's Exhibit No. 4 admitted.) 8 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, do you 9 recognize all four checks that are comprised of 10 Deposition [sic] Exhibit No. 4? 11 A. Yes, sir. 12 Q. Okay. And these checks were checks from my 13 client -- of monies from my client to you. Correct? 14 A. Yes, sir. 15 Q. Okay. And in the memo part, what does it 16 say in each one of these checks? 17 A. Loan. 18 Q. Okay. All right. 19 One last question; Ms. Landa, it is -- 20 is it unreasonable to believe that Mr. Farris, who 21 provided you approximately $90,000 for the down 22 payment on the house, didn't expect to get that paid 23 back -- 24 MR. SCARBOROUGH: Objection; 25 relevance. What his expectations were has nothing to 97

1 A. She was in Iowa at the time, and she was 2 taking care of her mom. She was living in her mom's 3 house, and she did not want to stay there. She was 4 having a difficult time living with her mom. 5 She had talked -- we had talked. We 6 continually were talking about things, but she wanted 7 to get her own place. And this is when she 8 approached me as far as the meeting in Dallas, wanted 9 to hook up and let's talk about things. 10 Q. Okay. When did this meeting in Dallas 11 occur? 12 A. December 17th, 2010. 13 Q. 2010. And was -- was it at that meeting in 14 Dallas that you understood for the first time that 15 she was seeking money for a down payment on this 16 house? 17 A. That's -- that's when we talked about -- 18 yes. 19 Q. Okay. And did you reach an agreement with 20 Ms. Landa with regard to her request for this money? 21 A. We did. We did. 22 Q. Can you tell the Court what the terms of 23 that agreement were? 24 A. The agreement was that I would provide the 25 down payment. There was no specific property, but 98

1 she was looking at property. And I would provide the 2 down payment as long as I was on the deed. It was 3 going to be a loan, to be paid back, as long as I was 4 on the deed. 5 Q. Okay. And how were you going to get paid 6 back? 7 A. She promised me she would pay me back on 8 the death of her mom because she had a 150,000-dollar 9 life insurance policy on her mom. 10 Q. Okay. And I think you testified that 11 around that time her mom was ill when she visited 12 with you in Dallas? 13 A. That is correct. 14 Q. Okay. All right. So did you agree to loan 15 her that money? 16 A. At that point in time we agreed on the 17 conditions of it, yes. 18 Q. Did you know how much the money -- how 19 much -- what the amount the money was going to be at 20 that time? 21 A. At that time, no. 22 Q. Okay. Why is that? 23 A. I don't think she had found a specific 24 piece of property that she was going to purchase. 25 Q. Okay. So when you left -- when you-all The following evidence adduced at the hearing on Landa’s Special

Appearance, while not necessarily an exhaustive list, supports the trial court’s

finding that it has specific jurisdiction over Landa:

1. Both Landa and Farris testified that they met in Dallas in December, 2010, and there discussed (amongst other things) Farris’s provision of funds to Landa for the purchase of a home. II RR 50-51 & 64-65 (Landa); II RR 97- 99 (Farris).

2. Farris testified that it was at this meeting in Dallas that he learned for the first time that Landa was seeking money for a down payment on a house. II RR 97.

3. Both Landa and Farris testified that part of the agreement arising from the meeting in Dallas were representations by Landa that the agreement would include Farris’s name being on the deed for the home that Landa would purchase utilizing the funds provided by Farris. II RR 66 (Landa); II RR 97- 98 (Farris).

4. Both Landa and Farris testified that they engaged in additional communications (aside from the meeting in Dallas), via e-mail and telephone, between the December meeting and February, 2011, to discuss Farris’s provision of funds to Landa for the purchase of a home. II RR 65-66 (Landa); II RR 99-101 (Farris).

5. Both Landa and Farris testified that Farris performed, wiring funds from his bank accounts in Austin to a joint bank account in Iowa, to effect the above- referenced provision of funds to Landa. II RR 67-68 (Landa); II RR 101-103 (Farris); III RR 18-19, Plaintiff’s Exh. 6; III RR 20-24, Plaintiff’s Exh. 7.

6. Both Landa and Farris testified that, despite Landa’s above-referenced representations regarding the deed, and Farris’s performance in accordance with the agreement, Farris’s name was ultimately stricken from the deed at closing. II RR 66 (Landa); II RR 104-106 (Farris).

7. Both Landa and Farris testified that they engaged in constant communication regarding the transaction after February, 2011 (and indeed, over the course of the next 3+ years) via e-mail, telephone, text, regular mail, and/or in-person [28] communications in Austin. II RR 68-71, 73-76 & 78-79 (Landa); II RR 103- 114 (Farris); III RR 6-8, Plaintiff’s Exh. 1; III RR 9-10, Plaintiff’s Exh. 2; III RR 25-204, Plaintiff’s Exh. 8; III RR 205-206, Plaintiff’s Exh. 9.

8. Both Landa and Farris testified that in May, 2012, on a visit to Austin, Landa gave Farris a check in the amount of $15,000.00. II RR 57-58 & 69 (Landa); II RR 107-108 (Farris); III RR 205-206, Plaintiff’s Exh. 9.

9. Landa testified that throughout all of the contacts that she had with Farris regarding the transaction, be they in person, by phone, by text, by e-mail, and/or by regular mail, Farris lived in Austin, Texas, and she was aware that she was obtaining funds from a resident of Texas. II RR 65-66.

The record is replete with evidence that suggests, for the purposes of this special

appearance, that Landa took actions that constituted her ‘doing business’ in Texas –

such as entering into an agreement with and engaging in frequent communications

with Farris, a Texas resident, regarding his provision of funds to her for the purpose

of purchasing a home, and traveling to Texas to facilitate those dealings with Farris.

Moreover, the evidence also suggests, for purposes of this special appearance, that

Landa made misrepresentations to Farris, in Texas, for the purpose of

inducing/facilitating Farris’s performance in accordance with that agreement. Thus,

there is ample evidence from which the trial court could reasonably have found it

has specific jurisdiction over Landa in the instant case.

The memorandum opinion from the Amarillo Court of Appeals that Landa

relies on, Pillai v. Pillai, is easily distinguishable from the instant case on a number

of factual bases. Pillai v. Pillai, 07-14-00379-CV, 2015 WL 1221394 (Tex.App.-

Amarillo March 16, 2015, no pet.) (mem.op.). First, the record in Pillai failed to [29] disclose which party first broached the subject of a loan or the location of the parties

when the subject was broached. Pillai, 2015 WL 1221394 at *1. In fact, in Pillai

the plaintiff actually traveled to Canada regarding the parties’ transaction. Here, that

is not the case, as the record indicates that the subject of Farris loaning Landa the

money at issue was first broached by Landa, was broached by Landa while both

parties were in Texas, and moreover, at no point in the parties’ ongoing contacts

regarding the transaction was Farris not located in Texas. II RR 50-51 & 64-66

(Landa); II RR 97-99 (Farris). Second, while the record in Pillai disclosed that the

defendant traveled to Texas from Canada on multiple occasions, nothing in the

record indicated that anything the defendant did on those in-person visits related to

the loan transaction. Pillai, 2015 WL 1221394 at *1. Here, that is not the case, as

the record indicates that on multiple trips to Austin, and during times when Landa

was again residing in Austin, Landa and Farris negotiated and/or discussed the

transaction, and/or performed (in whole or in part) in accordance with their

agreement. II RR 50-51, 57-58, 64-67 & 69 (Landa); II RR 97-99 & 107-108

(Farris); III RR 205-206, Plaintiff’s Exh. 9. Third, while additional written

communications appeared in the record in Pillai, all save one failed to indicate where

the parties were when those communications were sent or received. Pillai, 2015 WL

1221394 at *1. Here, that is not the case, as the record indicates that at all times,

Landa was aware she was communicating with Farris, a Texas resident, with regard

[30] 110

1 Q. And you would be paid back from what? 2 A. The loan of the money -- 3 Q. Okay. 4 A. -- on the house. 5 Q. All right. Now, here we are, May of 2012, 6 you get a check. You have communications with her 7 afterwards. Ms. Landa comes -- and she previously 8 testified that she came to visit in 2013? 9 A. That is true. 10 Q. Okay. And did you see her when she came to 11 visit in 2013? 12 A. I did. 13 Q. Okay. Did you-all talk about the loan in 14 2013? 15 A. Yes. 16 Q. Okay. 17 A. We did. 18 Q. Okay. Were you still asking to be paid 19 back? 20 A. Yes. 21 Q. Okay. And when she left to go back to Iowa 22 after that week visit in 2013, did you -- did you 23 have any communications with her? 24 A. Yes. 25 Q. Okay. And what -- what did those 282-83. The Citrin Court went on to say, “Here…the circumstances involve

multiple Texas contacts over many months in the course of an ongoing relationship

that ‘was not unilaterally initiated by the Texas resident.’ See Nogle & Black

Aviation, Inc. v. Favaretto, 290 S.W.3d 277, 283 (Tex.App.-Houston [14th Dist.]

2009, no pet.); cf. Michiana Easy Livin’ 168 S.W.3d at 784. These circumstances

demonstrate Citrin’s purposeful contact with Texas along with an intent to obtain

benefits from those contacts, and they defeat any suggestion that Citrin’s business-

related presence in Texas was merely ‘random, isolated, or fortuitous.’” Citrin

Holdings, LLC, 305 S.W.3d at 283. As detailed at length above, the evidence in the

instant case is similar to that described by the Citrin Court. These factual similarities

serve to illustrate why, as in Citrin, the trial court’s exercise of specific jurisdiction

in the instant case is proper.

Landa also misfocuses part of her argument on the fact that the parties’

agreement in the instant case called for (at least in part) performance by Farris in

Texas. Landa cites to an opinion from the Dallas Court of Appeals for her

proposition that, “…it does not matter that Farris was to conduct his obligations in

the state.” Appellant’s Brief, at 12, citing Turner Schilling, L.L.P. v. Gaunce Mgmt.,

247 S.W.3d 447, 456 (Tex.App.-Dallas 2008, no pet.). While Landa correctly

(albeit, incompletely) quotes Turner Schilling in this respect - “the plaintiff’s

performance of part of its contract duties in Texas is not a purposeful contact of the

[32] defendant with Texas,” the conclusion she draws from this statement fails to

acknowledge the broader jurisdictional issue. Rather, it is the unilateral activity of

another party or third person that is not relevant to the jurisdictional inquiry. Turner

Schilling, 247 S.W.3d at 451-52, citing Michiana Easy Livin’, 168 S.W.3d at 785;

see also, Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 339

(Tex. 2009). When the contacts with Texas formed by the nonresident defendant

create a contractual relationship between her and the resident plaintiff whereby the

plaintiff performs pursuant to the contract, in whole or in part, in Texas, than the

analysis of those contacts and their effect (i.e., the plaintiff’s performance in Texas)

is certainly relevant to the minimum contact analysis. See Retamco Operating, Inc.,

278 S.W.3d at 340; Citrin Holdings, LLC, 305 S.W.3d at 281. If this were not the

case, the Texas long-arm statute itself would be rather precariously placed vis-à-vis

constitutional requirements given its definition of ‘doing business’.

Finally, one of Landa’s more curious arguments with respect to specific

jurisdiction centers on whether or not the parties actually made an agreement in

Dallas. That is, her contention is that the parties never reached an agreement while

Landa was physically in Texas, because they didn’t have a meeting of the minds in

Texas. This despite the fact that in her own testimony Landa refers to the parties’

agreement, and calls it a loan. II RR 66, 69. Nevertheless, Landa’s own “exemplar”

case, Pillai tells us that, “…it is not necessary for the non-resident to appear on Texas

[33] 126

1 $82,000; isn't there? 2 A. I see that now. 3 Q. Okay. 4 MR. OCHOA-CRONFEL: Your Honor, I'm 5 going to object again. We're getting to the merits 6 of the issue for which Mr. Scarborough was objecting 7 all afternoon -- been objecting all morning. 8 THE COURT: Why is this relevant, 9 Mr. Scarborough? 10 MR. SCARBOROUGH: Because it -- it 11 goes to the same argument I'd say for him; what's 12 good for the goose and is good for the gander. 13 THE COURT: Overruled. 14 MR. SCARBOROUGH: We'll offer those 15 two exhibits, 5 and 6 into evidence. 16 A. That was hidden from me. I never saw it. 17 MR. SCARBOROUGH: Objection; 18 nonresponsive. 19 THE COURT: Do we have 5 and 6? 20 THE REPORTER: No. 21 THE COURT: 5 and 6? 22 MR. POTTER: Yes, ma'am. 23 MR. SCARBOROUGH: We will -- we 24 will -- 25 THE COURT: I cannot introduce them court’s implied findings. Those are citations to her own testimony and exhibits, and

even those scant citations to the record are mischaracterized. That is:

1. Landa cites her own testimony at II RR 80 in support of the proposition that she has lived and worked in Iowa for the past five years, except for a short period of time she spent in Travis County trying to reconnect to her son. In fact, Landa actually testified that during the last five years she has spent time living and/or working in Texas, Iowa, Michigan, and New York, including eight months or so that she again resided in Texas. II RR 37-42.

2. Landa’s other record citation is to her testimony and exhibits (II RR 62-63; III RR 207-271, Defendant’s Exhs.1-4) regarding her filing state income tax returns in Iowa. Of course, whether or not Landa filed state income tax returns in a state other than Texas (or 2 states, or 10 states, or 20 states other than Texas) demonstrates little to nothing with respect to the contacts she has or doesn’t have with Texas.

Landa’s only other record citation with respect to this point of error is again to

Plaintiff’s First Amended Original Petition, at CR 16, where she quotes that pleading

(correctly) as stating, “The Court has jurisdiction over Defendant as a result of her

continuous and systematic contacts, both personal and professional, with Austin,

Travis County, Texas, for well over twenty (20) years, up to and including the time

this suit was filed.” Appellant’s Brief at 18. About this quote Landa says in her

brief, “This is not a true statement,” and supports her assertion with only the above-

referenced citations. When questioned on cross-examination at the hearing on her

special appearance Landa said the following:

Q: Now, Ms. Landa, you lived and worked in Austin, Texas, for the better part of the last 20 years. Correct?

A: Yes, sir. [35] --II RR 79-80.

Once again, the remainder of Landa’s discussion on this point of error is

limited to a discussion of various authorities she believes apply to the instant case

on the basis of conclusory statements of “fact” regarding her ongoing and systematic

contacts with Texas (or lack thereof), without citations to support for same in the

record. In short, as with her second point of error, the foregoing demonstrates that

Landa has waived any purported error related to her third point of error, as she has

inadequately briefed same.

Assuming arguendo that Landa has not waived this point of error as discussed

above, her challenge on this point still fails. “If the defendant has made continuous

and systematic contacts with the forum, general jurisdiction is established whether

or not the defendant’s alleged liability arises from those contacts. Moki Mac, 221

S.W.3d at 575, citing BMC Software, 83 S.W.3d at 795-96; CSR Ltd., 925 S.W.2d

at 595.

The following evidence adduced at the hearing on Landa’s Special

Appearance supports the trial court’s finding that it has general jurisdiction over

Landa:

1. While Landa admitted that she had lived and worked in Austin for the better part of the last twenty years on cross-examination, she went even further back on direct examination, acknowledging that she had lived and worked in Austin at least as far back as the mid ‘80s. II RR 33-35.

[36] PLAINTIFF'S EXHIBIT NO. 9

~------------- ---- CONCLUSION

As the foregoing demonstrates, if ‘purposeful availment’ be the test, then there

is little doubt that Landa purposefully availed herself of the benefits, privileges, and

obligations of doing business in Texas with a Texas resident. Landa’s contacts with

Farris in Texas – be they in person, by phone, by text, by e-mail, and/or by regular

mail – were anything but random, isolated, or fortuitous. Landa made those contacts,

and cultivated those contacts, for the purpose of creating a relationship with Farris

whereby he would loan her significant funds for the purchase of a home. Certainly,

Farris took no unilateral actions to create said relationship or the contacts that Landa

made with the forum. The benefit to Landa was clear, and ultimately, equally so the

detriment to Farris.

Moreover, this is not the rare case in which the exercise of personal

jurisdiction does not comport with fair play and substantial justice once the

nonresident defendant has purposefully availed herself of the privilege of conducting

business in the forum. In fact, Landa has never asserted, either in her Special

Appearance, or at the hearing thereon, that being haled into Texas to respond to the

underlying lawsuit would cause any undue burden on her. In sum, the trial court

was correct in finding that it has personal jurisdiction over Landa with respect to this

matter, and there is no reason, compelling or otherwise, to disturb the trial court’s

finding in this respect.

[38] PRAYER

Appellee requests that the Court of Appeals reject the issues raised by

Appellant on appeal and affirm the trial court’s Order Denying Special Appearance

of Defendant, Karen E. Landa, as; (i) Appellant’s first point of error was waived for

failure to properly preserve same; (ii) Appellant’s first point of error fails as Farris’s

jurisdictional allegations were sufficient to shift the burden to Landa to negate all

bases for personal jurisdiction; (iii) Appellant’s second point of error was waived

for failure to adequately brief same; (iv) Appellant’s second point of error fails as

the record demonstrates both factually sufficient and legally sufficient bases for the

trial court’s finding of specific jurisdiction; (v) Appellant’s third point of error was

waived for failure to adequately brief same; and, (vi) Appellant’s third point of error

fails as the record demonstrates both factually sufficient and legally sufficient bases

for the trial court’s finding of general jurisdiction. Thus, Appellant has failed to

demonstrate any reversible error by the trial court in denying Landa’s Special

Appearance. Appellee further requests such other and further relief to which he may

show himself justly entitled.

[39] Respectfully submitted,

/s/ Guillermo Ochoa-Cronfel Guillermo Ochoa-Cronfel Texas Bar No. 15175600 The Cronfel Firm 2700 Bee Caves Road, Suite 103 Austin, Texas 78746 Telephone: (512) 347-9600 Facsimile: (512) 347-9911 Guillermo@thecronfelfirm.com

Counsel for Appellee, Charles L. Farris

[40] Certificate of Compliance

I certify that on November 10, 2015, this Appellee’s Brief was produced on a

computer and contains 7,869 words, excluding the caption, statement regarding oral

argument, table of contents, index of authorities, statement of the case, and statement

of the issues presented, and thus does not exceed the 15,000 word limit provided for

by Tex. R. App. P. 9.4(i).

/s/ Guillermo Ochoa-Cronfel Guillermo Ochoa-Cronfel

Certificate of Filing and Service

I certify that on November 10, 2015, I used the Court’s electronic case filing

system to file this Appellee’s Brief and to serve this document on the counsel for

Appellant:

Mr. Terry L. Scarborough Texas Bar No. 17716000 Ms. V. Blayre Pena Texas Bar No. 24050372 Hance Scarborough, LLP 400 W. 15th Street, Suite 950 Austin, Texas 78701 Telephone: (512) 479-8888 Facsimile: (512) 482-6891 tscarborough@hslawmail.com bpena@hslawmail.com

/s/ Guillermo Ochoa-Cronfel Guillermo Ochoa-Cronfel

[41]

Tab

1) Special Appearance of Defendant, Karen E. Landa dated December 22, 2014 (CR 9-12).

2) Plaintiff’s First Amended Original Petition dated June 24, 2015 (CR 15-22).

3) Plaintiff’s Response to Defendant’s Special Appearance dated July 1, 2015 (CR 23-30).

4) Tex. Civ. Prac. & Rem. Code §17.042.

5) Tex. R. App. P. 38.1(h)

6) Hearing Testimony of Karen E. Landa (II RR 32-94).

7) Hearing Testimony of Charles L. Farris (II RR 94-130).

8) Plaintiff’s Hearing Exhibit #1 (III RR 6-8).

9) Plaintiff’s Hearing Exhibit #6 (III RR 18-19).

10) Plaintiff’s Hearing Exhibit #7 (III RR 20-24).

11) Plaintiff’s Hearing Exhibit #9 (III RR 205-206).

[42] 12/22/2014 9:04:34 AM Amalia Rodriguez-Mendoza District Clerk Travis County D-1-GN-14-004669 CAUSE NO. D-1-GN-14-004669

CHARLES L. FARRIS § IN THE DISTRICT COURT OF § Plaintiff, § § vs. § TRAVIS COUNTY, TEXAS § KAREN E. LANDA, § § Defendant. § 98TH JUDICIAL DISTRICT

SPECIAL APPEARANCE OF DEFENDANT KAREN E. LANDA

Defendant, Karen E. Landa, in the above cause, makes this Special Appearance, pursuant

to Rule 120a of the Texas Rules of Civil Procedure, for the purpose of objecting to the jurisdiction

of the Court over Defendant Karen E. Landa, and as grounds will show the Court the following.

SPECIAL APPEARANCE

1. This special appearance is made as to the entire proceeding and is made before any motion

to transfer or any other plea, pleading, or motion filed by Defendant.

2. This court does not have jurisdiction over Defendant because Defendant is not amenable

to process issued by the courts of Texas because:

a. Defendant is not a resident of Texas and is not required to maintain and does not

maintain a registered agent for service in Texas.

b. Defendant does not now engage and has not engaged in business in Texas or

committed any tort, in whole or in part, within the state.

c. Defendant does not maintain a place of business in Texas and has no employees,

servants, or agents within the state.

d. Defendant has no substantial connection with Texas arising from any action or

conduct of Defendant purposefully directed toward Texas.

9 e. Plaintiffs claims do not arise from and are not related to any activity conducted by

Defendant in Texas.

f. Defendant has no continuing and systematic contacts with Texas.

3. The assumption of jurisdiction by the court over Defendant would offend traditional

notions of fair play and substantial justice, depriving Defendant of due process as guaranteed by

the Constitution of the United States.

PRAYER

For these reasons, Defendant requests that the court set this motion for hearing on notice

to Plaintiff, and that after hearing, the court grant this motion and dismiss the entire proceeding as

to Defendant for want of jurisdiction.

Respectfully submitted,

H ANCE SCARBOROUGH., LLP 450 W 151h Street, Suite 950 Austin, Texas 78701 Telephone: 512A79.8888 Facsimile: 512.482.6891

By: r -.[;(jL '-t~~tU.t~ Terry L. carborough State Bar No. 17716000 tscaro borough@hslawmail.com V. Blayre Pefia State Bar No. 24050372 bpena@hslawmail.com

10 - I

VERIFI CATIOJioi

STATE OF IOWA § § coUNTYoFD~n~ s §

BEFORE ME, the undersigned authority. on this day app~ared Karen E. Landa, who,

being first duly swoml stated under oath that she is the Defendant in Utis case. She has read the

above and foregoi ng Special Appearance and that the fac tual statements contained in paragraph 2

are within her personal knowledge and true and correct

~~~ ,flv~L_ Karen E'. Landa

SVBSCRffiED AND SWORN TO BEFORE ME on this z_o4h day of December,

2014.

1-\1\/ii'II~Url l>lllJii I COMMISSION NUMBER 753933 otary Public b1 and for MY COMMISSi r EXPj8ES The State of Iow1:1 jl'28 '20 ] ,

11 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document h~s been forwarded to all counsel and parties of record as set forth below on this the~~- day of December, 2014, to wit:

VIA FACS.ll\ULE Guillermo Ochoa-cronfel THE CRONFEL FIRM 2700 Bee Cave road, Suite 103 Austin, Texas 78746 512-347-9600 512-347-9911 fax

borough

12 6/24/2015 4:24:42 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-14-004669 D-1-GN-14-004669

CHARLES L. FARRIS, § IN THE DISTRICT COURT OF Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § KAREN E. LANDA, § Defendant § 98th JUDICIAL DISTRICT

PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, CHARLES L. FARRIS, (hereinafter referred to as "Plaintiff' or

"Farris") complaining of KAREN E. LANDA, (hereinafter referred to as "Defendant" or "Landa")

and files his, First Amended Original Petition in this matter, and for causes of action respectfully

shows the Court as follows:

I. PARTIES

1. Plaintiff is a resident of Austin, Travis County, Texas.

2. Defendant, is a resident of the State oflowa who has resided in Austin, Travis County, Texas,

and has conducted business with Plaintiff in Austin, Travis County, Texas. Defendant has already

been served in accordance with Tex. R. Civ. P. 108.

II. DISCOVERY LEVEL

3. Plaintiff intends to conduct discovery under Level III of the discovery control plan, pursuant

to Texas Rule of Civil Procedure 190.4.

III. JURISDICTIONNENUE

4. The Court has jurisdiction over Defendant, pursuant to Tex. Civ. Prac. & Rem. Code 17.041,

15 et. seq., because Defendant conducted business with Plaintiff in Austin, Travis County, Texas.

Plaintiff and Defendant entered into an agreement whereby Plaintiff would loan Defendant money

towards the purchase of a house, and Plaintiff was to perform his obligations under the agreement

between Plaintiff and Defendant, in whole or in part in this state. Moreover, the Court has

jurisdiction over Defendant as a result ofher continuous and systematic contacts, both personal and

professional, with Austin, Travis County, Texas, for well over twenty (20) years, up to and including

the time this suit was filed.

5. The Court has jurisdiction over the controversy because the damages are within the

jurisdictional limits of the Court. Plaintiff seeks monetary relief over $100,000 but not more than

$200,000, as well as costs of court and expenses, pre-judgment and post-judgment interest, and

attorney's fees.

6. Travis County is a proper venue for this action under§ 15.002 of the Tex. Civ. Prac. §Rem.

Code, as a substantial part of the events or omissions giving rise to the claim occurred in Travis

County, Texas.

IV. FACTS

7. Beginning in the summer of2010 and going through (at least) February of2011, Plaintiff

made numerous loans to Defendant. The total amount of money loaned by Plaintiff to Defendant in

these transactions, and currently remaining un-repaid, is at least $95,434.86.

8. In December, 2010, Plaintiff and Defendant met for a weekend in Dallas, Texas. During that

time, Plaintiff and Defendant discussed trying to find a house in Iowa to purchase. The parties

reached an agreement whereby Plaintiff would make the required down payment on the house, as a

[2]

16 loan to Defendant, that Defendant would repay said loan, and that both parties' names would be on

the deed to the house.

9. In February, 2011, Plaintiff loaned Defendant approximately $90,000.00, by wiring said

monies from his bank in Austin to a joint account the parties held at a financial institution in Iowa,

which was to be used in the purchase of real property (a home) located at 7685 Escalade Court, West

Des Moines, Dallas County, Iowa 50266 (the "Property"). This loan was the culmination of the

above-referenced agreement between Plaintiff and Defendant that had taken place in December,

2010, in which Defendant sought out and requested the loan from Plaintiff specifically for the

purpose of purchasing the Property. The agreement between the parties on this matter contemplated

Plaintiffliquidating a CD which he had on deposit with his financial institution in Austin, in order to

obtain the funds to loan Defendant (the "Loan Funds"), and then sending the Loan Funds from his

financial institution in Austin, both actions which Plaintiff undertook in Austin.

10. The above-referenced arrangement between Plaintiff and Defendant also required Plaintiff to

engage in correspondence amongst Plaintiff, Defendant, and the financial institution in Iowa,

regarding the larger mortgage loan towards the purchase of the Property. This correspondence

included Plaintiff forwarding financial information and documentation from Austin to the Iowa

financial institution, ostensibly as a "co-borrower" on the mortgage loan related to the Property.

11. The Loan Funds, once forwarded from Plaintiff, in Austin, to a joint account of Plaintiff and

Defendant at a financial institution in Iowa, were to serve as the entire amount of cash required at

closing on the Property from the "borrower" in satisfaction of the mortgage agreement.

12. As part of the inducement for the above-referenced loan, and as alluded to above, Defendant

represented to Plaintiff that he would be included as a grantee on the warranty deed related to the

[3]

17 Property, as joint tenant with full rights of survivorship. In this way, Plaintiff would have some

interest in the Property to serve essentially as security for the loan. Defendant further represented to

Plaintiff that she would pay back the loan.

13. Moreover, Plaintiff relied on Defendant's long-standing, continuous, and systematic contacts

with Austin, Travis County, Texas, in agreeing to the above-referenced loan; (i) Defendant lived in

Austin for the better part of over the last twenty-plus (20+) years, up to and including 2014; (ii)

Plaintiff and Defendant were married and resided together in Austin for approximately seven (7)

years; (iii) Defendant maintained an active insurance license with the Texas Department oflnsurance

from April, 1987 through April, 2015, and in fact did business as an insurance agent for many of

those years in Austin and neighboring areas, including operating her own insurance agency, Karen

Landa Insurance, as recently as 20 14; (iv) Defendant was registered with the Texas Securities Board

as an Investment Adviser Representative from 2005-2008, working with multiple financial services

companies in Austin; (v) Defendant owned and/or operated Tribeza Magazine in Austin, Travis

County, Texas, in 2009-2010; and, (vi) over the course of her many years of residence and

professional life in Austin, Defendant contributed to and/or volunteered with a number of non-profit

groups in Austin, including, but not limited to Hospice Austin Fund and the Texas Governor's

Mansion.

14. Notwithstanding the agreement between the parties and her representations to Plaintiff (and

unbeknownst to Plaintiff at the time), once Plaintiff forwarded the Loan Funds from Austin to Iowa,

Defendant unilaterally removed Plaintiff from involvement in the mortgage loan, and then

unilaterally struck Plaintiff's name from the warranty deed when it was executed, and same was filed

of record in the real property records of Dallas County, Iowa, with Plaintiff's name crossed out as a

[4]

18 grantee.

15. Over the next three years, Plaintiff made numerous efforts to engage Defendant on these

matters, seeking to arrange for payment plans, or make some other kind of arrangements with

Defendant to address the outstanding amounts due, to little avail. Defendant came to Austin in May,

2012, and made a payment in the amount of$15,000.00 to Plaintiff, but no additional payments were

forthcoming.

16. On August 23, 2014, Plaintiff made written demand for payment of the above-referenced

debts on Defendant. Despite having received same, Defendant continues to make no efforts to repay

the amounts due or to make arrangements for the repayment of same.

v. First Cause of Action (Breach of Contract)

17. Paragraphs 1 through 16, above, are incorporated herein by reference.

18. Defendant's above-described actions constitute Breaches of Contract with respect to the loans

made by Plaintiff to Defendant.

VI. Second Cause of Action (Fraud and/or Fraud in the Inducement)

19. Paragraphs 1 through 16, above, are incorporated herein by reference.

20. Defendant's above-described actions support Plaintiff's claim for Fraud and/or Fraud in the

Inducement with respect to, at least, the approximately $90,000 that Plaintiff loaned Defendant

specifically for the purpose of purchasing the Property.

VII. Third Cause of Action (Quantum Meruit)

21. Paragraphs 1 through 16, above, are incorporated herein by reference.

[5]

19 22. Alternatively, Defendant's above-described actions also support Plaintiff's Quantum Meruit

claim as Plaintiff provided loans to Defendant, Defendant accepted the benefit of said loans, and

Defendant had reasonable notice that Plaintiff expected that those loans would be repaid.

VIII. Exemplary Damages

23. Paragraphs 1 through 20, above, are incorporated herein by reference.

24. Plaintiff intends to seek exemplary damages against Defendant, with respect to his cause of

action for Fraud and/or Fraud in the Inducement.

IX. REMEDIES SOUGHT

25. The damages sought by the Plaintiff in this cause are within the jurisdictional limits of the

court.

26. Plaintiff seeks actual damages and exemplary damages totaling over $100,000 but not more

than $200,000, as well as costs of court and expenses, pre-judgment and post-judgment interest, and

attorney's fees.

X. Attorney's Fees

27. Paragraphs 1 through 26, above, are incorporated herein by reference.

28. Plaintiff is entitled to his attorney's fees incurred in pursuit of this cause pursuant to (at least)

Tex. Civ. Prac. & Rem. Code §38.001, et. seq.

XI. CONDITIONS PRECEDENT

29. All conditions precedent to bringing this suit and the relief sought herein have occurred or

have been taken.

[6]

20 PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited in the

manner and for the length of time required by law to appear and answer this Petition, and that upon

final hearing, Plaintiff have Judgment for; (i) Actual Damages and/or Exemplary Damages against

Defendant as set forth above; (ii) interest on any monetary damages awarded, from the date of

judgment at the legal rate; (iii) reasonable attorney's fees and costs of court; (iv) reasonable

attorney's fees in the event of appeal; and/or, for such other and further relief both general and

special, at law and in equity, to which Plaintiff may show himself justly entitled. Nothing herein is

intended as an election of remedies available to Plaintiffunder law.

Respectfully submitted,

Guillermo Ochoa-Cronfel THE CRONFEL FIRM 2700 Bee Cave Road, Suite 103 Austin, Texas 78746 Telephone: 512-347-9600 Facsimile: 512-347-9911 Guillenno(Zuthecronfelfirm.com

By:/s/ Guillermo Ochoa-Cronfel Guillermo Ochoa-Cronfel State Bar No. 15175600 ATTORNEY FOR PLAINTIFF

[7]

21 CERTIFICATE OF SERVICE

I, Guillermo Ochoa-Cronfel, certifY by my foregoing signature that a true and correct copy of the foregoing has been served via the method indicated below, pursuant to the Texas Rules of Civil Procedure to the person(s) noted below on this the 24th day of June, 2015.

Terry L. Scarborough Via Texas eFiling V. Blayre Pefia & E-mail: tscarborough(a}hslawmaiLcom Hance Scarborough, LLP bpena@i;hslawmai Lcom 450 W. 15th St., Ste. 950 Austin, Texas 78701 T: 512-479-8888 T: 512-482-6891 ATTORNEYS FOR DEFENDANT

[8]

22 7/1/2015 7:52:26 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-14-004669 D-1-GN-14-004669

CHARLES L. FARRIS, § IN THE DISTRICT COURT OF Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § KAREN E. LANDA, § Defendant § 98th JUDICIAL DISTRICT

PLAINTIFF'S RESPONSE TO DEFENDANT'S SPECIAL APPEARANCE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, CHARLES L. FARRIS, (hereinafter referred to as "Plaintiff' or

"Farris") and files his, Response to Defendant's Special Appearance, and respectfully shows the

Court as follows:

I.

"The plaintiffbears the initial burden of pleading sufficient allegations to bring a nonresident

defendant within the provisions of the long-arm statute." BMC Software Belgium, NV v. Marchand,

83 S.W.3d 789, 793 (Tex. 2002), citing McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965).

Plaintiff's Original Petition, as well as his live pleading, Plaintiff's First Amended Petition, set forth

in detail (amongst other things) allegations that; (i) Defendant entered into an agreement with

Plaintiff, in Texas, whereby Plaintiff would loan Defendant funds for the purchase of a house,

Defendant would pay Plaintiffback for said loan, and Plaintiff's name would be on the deed for said

house; (ii) Plaintiffs performance under the agreement would take place, in whole, within Texas;

(iii) Defendant breached the terms of that agreement; (iv) Defendant defrauded Plaintiff by

unilaterally striking his name from the Warranty Deed on her purchase of the above-referenced

house; and, (v) along with the above-referenced specific contacts Defendant has with Texas related

[1]

23 to Plaintiff's claims in this case, Defendant has and has had long-standing, systematic and continuous

contacts with Texas. Plaintiff has carried his initial burden with respect to his jurisdictional

allegations.

II.

As the plaintiffhas carried his burden with respect to the jurisdictional allegations, the burden

now falls on the defendant challenging this Texas court's personal jurisdiction over her to negate all

jurisdictional bases. BMC Software, 83 S.W.3d at 793, citing Kawasaki Steel Corp. v. Middleton,

699 S.W.2d 199, 203 (Tex. 1985). Defendant's bare-bones pleading, containing only conclusory

statements (many of which are demonstrably false), attested to via verification, is insufficient to

accomplish this task. See, Tex. R. Civ. P. 120a(3); Small v. Small, 216 S.W.3d 872, 876-877

(Tex.App.-Beaumont 2007, pet. denied).

"A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First,

the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of

jurisdiction must be consistent with federal and state constitutional guarantees of due process."

Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990), citing Tex. Civ. Prac. & Rem. Code §§s

17.041- 17.069.

The Texas long arm-statute states in pertinent part, "In addition to other acts that may

constitute doing business, a nonresident does business in this ifthe nonresident: (1) contracts by mail

or otherwise with a Texas resident and either party is to perform the contract in whole or in part in

this state; (2) commits a tort in whole or in part in this state ... " Tex. Civ. Prac. & Rem. Code

§17.042. And importantly, " ... section 17.042's broad language extends Texas courts' personal

jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" BMC

[2]

24 Software, 83 S.W.3d at 795, citing U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760,762 (Tex. 1977).

"Personal jurisdiction over nonresident defendants is constitutional when two conditions are

met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of

jurisdiction comports with traditional notions of fairplay and substantial justice." BMC Software, 83

S.W.3d at 795, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90

L.Ed. 95 (1945); see also, Small, 216 S.W.3d at 876-877, and Citrin Holdings, L.L.C. v. Minnis, 305

S.W.3d 269, 278-279 (Tex.App.-Houston [14 1h Dist.] 2009, no pet.).

Further, "Personal jurisdiction exists if the nonresident defendant's minimum contacts give

rise to either specific jurisdiction or general jurisdiction." BMC Software, 83 S.W.3d at 795, citing

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80

L.Ed.2d 404 ( 1984), and Guardian Royal Exchange Assurance, Ltd. v. English China Clays, P.L. C.,

815 S.W.2d 223, 226 (Tex. 1991). Moreover, "To determine whether a nonresident defendant has

sufficient minimum contacts with Texas to support the exercise of personal jurisdiction," turns on,

" ... whether the nonresident defendant 'purposefully availed' itself of the privilege of conducting

business in Texas." Citrin Holdings, 305 S.W.3d at 278, citing Burger King Corp. v. Rudzewicz,

471 U.S. 462,475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), andMichiana Easy Livin' Country, Inc.

v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In the 'purposeful availment' analysis the court

considers; (i) the defendant's actions; (ii) whether the defendant's actions were purposeful, as

opposed to random, isolated, or fortuitous; (iii) whether the defendant sought some benefit,

advantage, or profit by availing itself of the privilege of doing business in Texas. Citrin Holdings,

305 S.W.3d at278-279, citingMichiana, 168 S.W.3d at 785. And, lest we forget, "A defendant may

purposefully avoid Texas by structuring its transactions to neither profit from Texas's laws nor

[3]

25 subject itself to personal jurisdiction." !d. at 279, citing Burger King, 471 U.S. at 472, 105 S.Ct.

2174, and Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).

Finally, "Only in rare cases will the exercise of personal jurisdiction not comport with fair

play and substantial justice when a nonresident defendant has purposefully availed itself of the

privilege of conducting business within a forum." Citrin Holdings, 305 S.W.3d at 280, citing

Guardian Royal, 815 S.W.2d at 231.

III.

Specific Jurisdiction: "Specific jurisdiction over a nonresident defendant is established if (1) the

defendant's activities were purposefully directed to the forum state; and, (2) there is a substantial

connection between the defendant's forum contacts and the operative facts of the litigation. Citrin

Holdings, 305 S.W.3d at 279, citing Moki Mac, 221 S.W.3d at 585. Essentially, jurisdiction is

proper if the cause of action arises from some act or acts which constitute "doing business" in Texas,

as defined in the Texas long-arm statute. Schlobohm, 784 S.W.2d at 356-357.

Here, as was the case in Citrin Holdings, Defendant reached an agreement with Plaintiff

regarding the transfer of money at issue, through prolonged discussions with Plaintiff Defendant

communicated face-to-face with Plaintiff in Texas, and via telephone, e-mail, and mail, regarding the

contemplated transaction, which was performed by Plaintiff in whole in Texas, and by Defendant (at

the very least, in part) in Texas. With respect to the specific jurisdiction analysis, the Citrin Court

said, "These circumstances demonstrate Citrin's purposeful contact with Texas along with an intent

to obtain benefits from those contacts, and they defeat any suggestion that Citrin's business-related

presence in Texas was merely 'random, isolated or fortuitous.' Michiana, 168 S.W.3d at 785; see

also GJP, Inc. v. Ghosh, 25 1 S.W.3d 854, 879 (Tex.App.-Austin 2008, no pet.)." Citrin Holdings,

[4]

26 305 S.W.3d at 283. "The evidence of Texas-based contractual performance in this case reinforces

the exercise of specific jurisdiction." Citrin Holdings, 305 S. W.3d at 283, citing Texas Civ. Prac. &

Rem. Code §17.042(1); Nogle &Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277,283 (Tex.App.-

Houston [14th Dist.] 2009, no pet.); Fleischer v. Coffey, 270 S.W.3d 334, 338 (Tex.App.-Dallas

2008, no pet.).

General Jurisdiction: In a general jurisdiction analysis, the plaintiff's cause(s) of action need not

arise from or relate to the nonresident defendant's contacts with the forum, but the court's

jurisdiction over the defendant must be grounded in the defendant's contacts of a continuous and

systematic nature with the forum. Citrin Holdings, 305 S.W.3dat279, citingHelicopteros, 466 U.S.

at 414-416, 104 S.Ct. 1868, and Guardian Royal, 815 S.W.2d at 228. This is a more demanding

minimum contacts analysis than that required for specific jurisdiction, in which the court examines

the defendant's contacts and forum-related activities up to the time suit was filed. Citrin Holdings,

305 S.W.3d at279, citing Guardian Royal, 815 S.W.2dat228, andPHC-Minden, L.P. v. Kimberley-

Clark Corp., 235 S.W.3d 163, 170 (Tex. 2007).

In the instant case, the general jurisdiction inquiry by the Court should focus on Defendant's

long-standing, continuous and systematic contacts with Texas, which Plaintiff will show include; (i)

Defendant having lived and worked in Austin for a majority of the last twenty-plus (20+) years; (ii)

Defendant having lived and worked in Austin as recently as April, 20 14; and, (iii) Defendant holding

an active license with the Texas Department oflnsurance from April, 1987, to the present. Plaintiff

will show that not only should specific jurisdiction apply in this case, but general jurisdiction should

apply as well.

[5]

27 IV.

Amongst Defendant's attempts to negate the court's jurisdictional bases in this matter is her

sworn statement that, "Defendant does not now engage and has not engaged in business in Texas or

committed any tort, in whole or in part, within the state." Defendant's Special Appearance, -,r 2(b).

Plaintiff's testimony at the hearing on Defendant's Special Appearance will mirror the allegations in

his pleadings in this respect; chiefly, that he and Defendant entered into a loan agreement (in Texas)

whereby he would loan Plaintiff the funds at issue herein, and further, perform his obligations under

said agreement in whole or in part in Texas. Moreover, Defendant's P 1 Amended Responses to

Plaintiff's 1st Set of Discovery Requests also demonstrate the falsity ofDefendant' s above-described

statement. For example, in response to Requests for Admission Nos. 13-17, Defendant admits that;

(i) Karen Landa Insurance is a d/b/a of Defendant; (ii) as recently as 2014, Karen Landa Insurance

was a member of and/or sponsor ofthe Westlake Hills Chamber of Commerce; (iii) from (at least)

January, 2010 through March 13, 2015, Defendant held an active insurance license with the Texas

Department oflnsurance 1 ; and, (iv) within the last ten (1 0) years, Defendant served on the Board of

Directors of Austin Hospice Community Foundation. See First Amended Responses to First Set of

Discovery Requests to Defendant Karen E. Landa, attached hereto and incorporated herein as

Exhibit "A". By Defendant's own admission, and the testimony of Plaintiff, Plaintiff will

demonstrate that Defendant has engaged in business in the State of Texas, including the business at

issue in this matter.

Likewise, Defendant's sworn, conclusory statements that; "Defendant has no substantial

connection with Texas arising from any action or conduct ofDefendant purposefully directed toward

[6]

28 Texas," "Plaintiff's claims do not arise from and are not related to any activity conducted by

Defendant in Texas," and "Defendant has no continuing and systematic contacts with Texas," are

demonstrably false. Along with those discovery responses noted above, in response to Requests for

Admission Nos. 1, 2 & 8, in the above-referenced Exhibit A, Defendant admits that Plaintiff wired

over $89,000.00 in funds, which are specifically complained of in Plaintiff's First Amended Petition

as being the subject of a loan agreement between Plaintiff and Defendant, to a joint account of

Plaintiff and Defendant, and that said funds were used by Defendant to purchase a house in Iowa.

See Exhibit A. Defendant specifically sought the funds from Plaintiff, a Texas resident, in Texas.

Again, Plaintiff will also demonstrate, that Defendant sought out and obtained the agreement (and

the funds arising from same), voluntarily, from a Texas resident, knowing full well that the funds

would come from a Texas resident.

As is set forth above and as Plaintiff will further show at the hearing on Defendant's Special

Appearance, Plaintiff's allegations in this case amply demonstrate the applicability of the Texas long

arm-statute in this case, that federal due process concerns are met in this case, and that this Court has

personal jurisdiction over Defendant.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court deny Defendant's

Special Appearance, that Defendant be required to appear and answer his First Amended Original

Petition, and for such other and further reliefboth general and special, at law and in equity, to which

Plaintiff may show himself justly entitled. Nothing herein is intended as an election of remedies

available to Plaintiff under law.

1 In fact, Defendant testified at deposition that she still holds an active insurance license with TDI. [7]

29 Respectfully submitted,

Guillermo Ochoa-Cronfel THE CRONFEL FIRM 2700 Bee Cave Road, Suite 103 Austin, Texas 78746 Telephone: 512-347-9600 Facsimile: 512-347-9911 Guillermo@thecronfel tirm.com

By:/s/ Guillermo Ochoa-Cronfel Guillermo Ochoa-Cronfel State Bar No. 15175600 ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

I, Guillermo Ochoa-Cronfel, certify by my foregoing signature that a true and correct copy of the foregoing has been served via the method indicated below, pursuant to the Texas Rules of Civil Procedure to the person(s) noted below on this the 1st day of July, 2015.

Terry L. Scarborough Via E-mail: tscarborough(a}hslawmail.com V. Blayre Pefia bpena(t:{?hslawmail.com Hance Scarborough, LLP 450 W. 15th St., Ste. 950 Austin, Texas 78701 T: 512-479-8888 T: 512-482-6891 ATTORNEYS FOR DEFENDANT

[8]

30 § 17.042. Acts Constituting Business in This State, TX CIV PRAC & REM § 17.042

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 2. Trial, Judgment, and Appeal Subtitle B. Trial Matters Chapter 17. Parties; Citation; Long-Am1 Jmisdiction (Refs &Annos) Subchapter C. Long-Arm Jmisdiction in Suit on Business Transaction or Tort (Refs & Annas)

V.T.C.A., Civil Practice & Remedies Code§ 17.042

§ 17.042. Acts Constituting Business in Tllis St ate

Currentness

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:

( 1) contracts by mail or otherwise with a Texas resident and either party is to perfotm the contract in whole or in part in tlus state;

(2) con:units a tort in whole or in part in tills state; or

(3) recmits Texas residents, directly or through an intem1ediaty located in this state, for employment inside or outside this state.

Ct·edits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions ( 1526)

V. T. C. A., Civil Practice & Remedies Code § 17.042, TX CIV PRAC & REM § 17.042 Oment through the end of the 2015 Regular Session of the 84th Legislature

End of DocumPnt 0 10 15 Thomson Reuters. No claim to original US. Government Works.

'N~tt Next © 2015 Thomson Reuters No claim to original U S Government Works 38.1. Appellant's Brief, TX R APP Rule 38.1

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annas) Rule 38. Requisites of Briefs (Refs &Annas)

TX Rules App.Proc., Rule 38.1

38.1. Appellant's Brief

Currentness

The appellanfs brief must, tmder appropriate headings and in the order here indicated, contain the following:

(a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court's judgment or order appealed from, and the nan1es and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8.

(b) Table of Contents. The brief must have a table of contents with references to the pages of the brief. The table of contents must indicate the subje.c t matter of each issue or point, or group of issues or points.

(c) Index ofAuthorities. The brief must have an index of authorities ananged alphabetically and indicating the pages of the brief where the authorities are cited.

(d) Statement ofthe Case. The brief must state concisely the nature of the case (e.g., whetherit is a suit for danlages, on a note, or involving a mmder prosecution), the course of proceedings, and the fl·ial cowt's disposition of the case. The statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts.

(e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral argument should or should not be pennitted. Any such statement must not exce.e d one page and should address how the court's decisional process would, or would not, be aided by oral argument. As required by Rule 39.7, any patty requesting oral argwnent must note that request on the front cover of the party's brief.

(f) Issues Presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.

(g) Statement ofFacts. The brief must state concisely and without argtm1ent the facts pertinent to the issues or points presented. In a civil case, the cowt will accept as tme the facts stated tmless another party contradicts them. The statement must be supported by record references.

(h) Summary of the Argument. The brief must contain a succinct, clear, and accw·ate statement of the arguments made in the body of the brief. This sullllllaly must not merely repeat the issues or points presented for review.

'.\lt!stt Next © 2015 Thomson Reuters No claim to original U S Govemment Worl

(i) Argument. The brief must contain a clear and concise argwuent for the contentions made. with appropriate citations to authorities and to the record.

G) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought.

(k) Appendix in Civil Cases.

(1) Necessary Contents. Unless voluminous or impracticable~. the appendix must contain a copy of:

(A) the trial cowi's judgment or other appealable order from which relief is sought;

(B) the jury charge and verdict, if any, or the trial cowt's fmdings of fact and conclusions oflaw, if any; and

(C) the text ofany m le, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argWllent is based, and the text of any contract or other document that is central to the argtmlent.

(2) Optional Contents. The appendix may contain any other item pe1tinent to the issues or points presented for review, including copies or excetpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excetpts from the reporter's record, and similar material. Items should not be included in the appendix to attempt to avoid the page limits for the brief.

Ct·edits Eff. Sept. 1, 1997. Amended by Supreme Court March 10, 2008, and Aug. 20, 2008, eff. Sept. 1. 2008. Approved by Cowt of Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.

Notes of Decisions (937)

Rules App. Proc., Rule 38.1 , TX R APP Rule 38.1 Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are cun·ent with amendments re.c eived through September 1, 2015. Bar Rules, Rules ofDisciplinruy Procedure, Code of Judicial Conduct, and Rules of Judicial Administration ru·e current with amendments received through September 1, 2015. Other state cowtmles and selected cmmty mles are cwrent with mles verified through June 1, 2015.

End ofDocument !:> 2015 Thomson Reuters. No clatm to origwal U.S. Government Works.

No claim to original U S Government Wor!

1 MR. OCHOA-CRONFEL: Yes, ma'am. 2 THE COURT: Go ahead. 4 having been first duly sworn, testified as follows: 6 BY MR. SCARBOROUGH: 7 Q. Would you state your name for the record, 8 please? 9 A. My name is Karen Elizabeth Taylor. 10 Q. And you are the defendant in this case? 11 A. Yes, sir. 12 Q. You're one and the same as Karen Landa 13 Taylor? 14 A. Yes, sir. 15 Q. Okay. Very briefly, you graduated from 16 high school in what year? 17 A. 1978. 18 Q. Where? 19 A. Urbandale, Iowa. 20 Q. And you came to UT to go to college? 21 A. Yes, sir. 22 Q. Why? 23 A. I came to UT because my grandmother lived 24 here in Austin and had started an IT school, and so I 25 was able to live with her and attend UT as a Texas 33

1 resident because I was born in Denton, Texas. 2 Q. And did you graduate? 3 A. No, sir, I did not. 4 Q. How many years did you attend UT? 5 A. Two years. 6 MR. OCHOA-CRONFEL: Your Honor, I'm 7 sorry. Is the microphone working? I don't think 8 it's working, and I'm having a little bit of trouble 9 hearing. 10 Excuse me; I didn't mean to -- 11 THE COURT: Could you speak a little 12 louder? 13 THE WITNESS: Okay. 14 Q. (BY MR. SCARBOROUGH) You need to just 15 speak up. 16 A. Okay. 17 Q. Have you ever been in court before? 18 A. Yes, I have. 19 Q. Related to a divorce or something? 20 A. It was my husband's estate. 21 Q. Okay. We'll touch on that very briefly. 22 The Court has said she didn't want to hear too much 23 about it -- 24 A. Okay. 25 Q. -- but I, in my opening statement, talked 34

1 about a period of time from 1980 -- 2 A. Yes, sir. 3 Q. -- through -- I think what I said, Judge, 4 was the summer of 2010. So during that period of 5 time, that's 30 years, did you either live in 6 Williamson or Travis County? 7 A. Yes, sir. 8 Q. And did you work in Williamson or Travis 9 County? 10 A. Yes, sir. 11 Q. And did you -- were you married in either 12 Williamson or Travis County? 13 A. Yes, sir. 14 Q. On more than one occasion? 15 A. Yes, sir. 16 Q. You had -- divorced in Williamson or Travis 17 County during that 30 years. 18 A. Yes, sir. 19 Q. And you had children during that 30 years 20 in Austin or Williamson County. 21 A. Yes, sir. 22 Q. As part of your work, were you ever at any 23 time required to obtain, from the Texas Department of 24 Insurance, a license? 25 A. Yes, sir. 35

1 Q. When was that? 2 A. That would have been 1986 or '87. 3 Q. Okay. And do you still hold that license? 4 A. Yes, I do. 5 Q. Today? 6 A. Yes, sir. 7 Q. Okay. Now, has that license been changed 8 from time to time when you go back and forth to Iowa 9 from a resident license to a nonresident license? 10 A. Yes. 11 Q. Did you at some point along the way acquire 12 a license in Iowa to be -- to sell insurance 13 products? 14 A. Yes, sir. 15 Q. Okay. Can you have a resident license to 16 sell insurance in two different states at the same 17 time? 18 A. No, sir. 19 Q. Explain that to the Court. 20 A. To have your insurance license, they want 21 to know your address, your residence. And so when 22 you change your address to a state -- out of state 23 address other than Texas, it automatically flags it 24 as a nonresident license. I was able to obtain an 25 insurance license in Iowa because I'm grandfathered. 36

1 I've been an insurance agent for so long. And that 2 license was -- when I applied for it as a resident of 3 Iowa -- 4 Q. And when was that? 5 A. That would have been April 2011. 6 Q. Okay. Now, backing up real quickly. What 7 jobs -- just bracket the years where you actually 8 used -- when you got it in '86 or '87 -- what jobs 9 did you use it for over what period of time? 10 A. From '86, '87 until 1998 I used my 11 insurance license. And then again when I went to 12 work at another employer from 2005 to 2008. 13 Q. Okay. Now, the job you had before you left 14 town -- 15 A. Uh-huh. 16 Q. -- after the '08 -- the last job you had in 17 Texas was what? 18 A. I worked for Tribeza magazine. 19 Q. Now, was the -- who was the owner of that 20 magazine? 21 A. The owner was my boyfriend, Dale Dewey. He 22 was a co-owner. 23 Q. And were you paid -- did you live with him 24 and work together at the same time? 25 A. Yes. Yes, sir, I did. 37

1 Q. And did your work for the Tribeza magazine 2 require you to use that insurance license? 3 A. No, sir, it did not. 4 Q. Why didn't you at that time just give it 5 up? 6 A. Because when you're grandfathered and, as 7 long as I've had that license, it's easier just to 8 renew it every year than to let it go because it is 9 such a huge undertaking to get an insurance license. 10 Q. Okay. But is it your testimony that you 11 didn't use it the rest of the time you were in Austin 12 before you left? 13 A. Yes, sir. 14 Q. Is that correct? 15 A. I did not use the license. 16 Q. Okay. And after that last job where you 17 did use it up through '08, starting with Tribeza 18 magazine, did you use it again in Texas before you 19 moved in the summer of 2010? 20 A. No, sir, I did not. 21 Q. Now, very briefly, you've -- we've 22 established by way of opening statement, but when did 23 you actually move to Iowa to be with your mother? 24 A. I arrived there the very end of October, 25 first of November. 38

1 Q. Of what year? 2 A. It would have been 2010. 3 Q. And so when did you leave Austin? 4 A. I left Austin the end of June, first of 5 July. 6 Q. Okay. So during the summer of that year, 7 which would have been 2010, were you still with your 8 boyfriend? 9 A. I was. 10 Q. And where did y'all go first? 11 A. We went -- he flew to Austin and drove with 12 me to his parent's home in Michigan. 13 Q. Okay. Was he wanting to relocate into 14 New York? 15 A. He wanted to go back to the East Coast. 16 That's where his contacts were and he was from 17 Connecticut. He wanted to re-establish a position in 18 New York City. 19 Q. And so for some short period of time did 20 you and he live in a guest quarters, guest house of 21 his parents in Michigan? 22 A. Yes. We traveled during that time and 23 stayed at the guest house that they had in Roscommon, 24 Michigan, a family home. 25 Q. And after that what -- what month did you 39

1 move to New York? 2 A. He drove me to New York. And it would have 3 been September 2010. 4 Q. And so you lived with your boyfriend in 5 New York in September and October? 6 A. Yes, sir. 7 Q. And did that relationship end? 8 A. Yes, it end -- it did. It ended. 9 Q. Now, at the same time what was happening 10 with your mother's health? 11 A. My mother's health -- she had -- was in 12 Stage 4 cancer and it kept getting worse. And when I 13 was in New York, I got a phone call that she had been 14 hospitalized again. And when -- I knew that it 15 wasn't going to work out with Dale. I could either 16 go back to Austin, but I knew my mother needed me 17 more. So a girlfriend of mine flew in from Iowa to 18 New York and drove with me in my car and my dogs and 19 we went to Iowa. 20 Q. And that was late October 2010? 21 A. Yes. I remember we arrived on Halloween, 22 10-31 of 2010. 23 Q. And did you move in with your mother? 24 A. I moved in with my mother. 25 Q. Now, during this period of time did you 40

1 have belongings stored somewhere? 2 A. I did. 3 Q. Where were they stored? 4 A. They were stored in Austin -- they were 5 stored in Texas. I think they were -- it was at a 6 PODS facility, somewhere here I believe in Travis 7 County. 8 Q. And I don't want the detail but, just 9 generally, what were your belongings that were 10 stored? 11 A. I have huge pieces of artwork and lots of 12 furniture. I had a very large home, and so it was 13 appliances -- but it was over -- it was five full 14 pods of furniture that were stored. 15 Q. All right. And they -- even when you went 16 to New York, did they stay in Austin? 17 A. They always stayed in Austin because Dale 18 didn't have an offer on a job until later, so we 19 didn't know where we were going to go. 20 Q. Okay. And then when you got to Iowa and 21 you're living with your mother, did you immediately 22 bring the storage stuff to Iowa, or was that later? 23 A. No. The storage I did not bring it till 24 December. I was trying to figure out where to put 25 the items -- 41

1 Q. Okay. 2 A. -- trying to find a place -- 3 Q. That's all I want to know. You brought it 4 in December. 5 A. Okay. 6 Q. And was there a significant cost in 7 storage? 8 A. The cost for the five pods was $1,500 or 9 more every month. And I was trying to cut back on 10 that expense, so I was trying to figure out a way to 11 get them out of storage. 12 Q. Now, we're going to talk in greater detail 13 about the closing, but when was the closing on the 14 condo in Iowa? 15 A. February 28th of 2011. 16 Q. Okay. And -- now, with the exception -- 17 you -- we'll get to it in a minute, but you later 18 moved back to Texas for a period of time, some eight 19 or nine months. 20 A. Yes, sir. 21 Q. When was that time frame -- 22 MR. OCHOA-CRONFEL: Your Honor, I'm 23 going to object to the leading. 24 Q. (BY MR. SCARBOROUGH) When was that time 25 frame? 42

1 MR. OCHOA-CRONFEL: May I have a 2 ruling on the objection? 3 THE COURT: Sustained. 4 A. It was after my mother's death and after 5 her estate was resolved, so it would have been -- I 6 came back in end of July, first of August I arrived 7 in Austin. And that was -- 8 Q. (BY MR. SCARBOROUGH) What year? 9 A. I'm trying to think of years. 2013. 10 Q. Okay. And you moved back here for what 11 reason? 12 A. My son had announced that he was getting 13 married, and I wanted to be part of the wedding 14 ceremony. And I was hoping to reconcile with him. 15 And I knew that, for me to have a relationship with 16 him, I needed to be closer to him and thought that 17 being in Austin would be helpful in that. 18 Q. And when was he married? 19 A. He was married February 28th of 2014. 20 Q. Now, back up real quickly, when you got -- 21 you said in the spring you got your real estate -- 22 not real estate -- your insurance license in Iowa. 23 A. In 2011, April, uh-huh. 24 Q. Okay. And when you got that license -- 25 we've talked about having two resident licenses. 43

1 What did you do with the Texas license and what did 2 you do with the Iowa license? 3 MR. OCHOA-CRONFEL: Your Honor, I'm 4 going to -- I'm going to object to -- 5 Mr. Scarborough's testifying and leading the witness. 6 I'm going to object to it. 7 THE COURT: Overruled. 8 A. You have an obligation to keep your license 9 up to date. And usually you do that when it's on a 10 renewal. And so when I moved to Iowa and obtained 11 the Iowa license for insurance, that automatically 12 flagged Texas that I was in Iowa. And so they 13 notified me that I needed to change the status to a 14 nonresident and updated my Texas license to show my 15 Iowa address. 16 Q. (BY MR. SCARBOROUGH) Did you do that? 17 A. Yes. 18 Q. All right. And your Iowa license was 19 listed as a resident license? 20 A. Yes. 21 Q. Okay. Now, you've testified about a period 22 of time you moved back. When you moved back from 23 July of '13 to April of '14, what did you do with 24 your licenses when you moved back? 25 A. When I came back I didn't have a job. But 44

1 when I was offered a job to go in the insurance 2 business -- 3 Q. When was that? 4 A. I started work there September of 2013. 5 As -- part of my obligation is to notify Texas that 6 I'm in Texas and to change the status because they 7 can't appoint you as an agent if you don't have a 8 resident license. 9 Q. So did you do that -- 10 A. Yes. 11 Q. -- at that time? 12 A. Yes, sir, I did. 13 Q. Now, simultaneously did you change your 14 Iowa license to a nonresident? 15 MR. OCHOA-CRONFEL: Objection; 16 leading, Your Honor. 17 THE COURT: Sustain -- I mean, 18 overruled. Sorry. 19 A. Yes, sir, I did. 20 Q. (BY MR. SCARBOROUGH) Okay. And during the 21 time while you were here in Texas, from September 22 when you got your job of '13 through April of '14, 23 did you -- did you attempt to sell insurance-related 24 products to Texas residents while you were here? 25 A. I tried to open up an agency after my 45

1 training, yes. December 1 is when I opened up my 2 business. 3 Q. Okay. 4 THE COURT: Of what year? 5 THE WITNESS: 2013. 6 THE COURT: Okay. 7 Q. (BY MR. SCARBOROUGH) And when did that 8 end? 9 A. I resigned in -- end of April 2014. 10 Q. And did you -- where did you move to? 11 A. I went back to Iowa. 12 Q. Okay. And in Iowa did you -- when you went 13 back to Iowa, did you have a job when you went back? 14 A. No, I didn't have a job. 15 Q. Did you immediately change your license in 16 Texas to nonresident and the one in Iowa to resident? 17 MR. OCHOA-CRONFEL: I'm going to 18 object as leading again. He's putting words in 19 the -- 20 THE COURT: Sustained. 21 MR. OCHOA-CRONFEL: -- in the witness' 22 mouth. 23 Q. (BY MR. SCARBOROUGH) When did you change, 24 if you did, your licenses in Texas and Iowa to 25 reflect that you were in Iowa? 46

1 A. I changed the address once I had a 2 permanent residence, and that was when I went back to 3 work, and that was September 2014. 4 Q. Okay. And in September of 2014, what did 5 you do with regard to your Iowa license and what did 6 you do with regard to your Texas license? 7 A. I updated the Iowa license to show me as a 8 residence of Iowa with the same address, and at the 9 same time updated my Texas license to show the 10 updated address as a nonresident status. 11 Q. Okay. When's the first time -- was it 12 before or after you moved to Iowa on Halloween, 13 October of 2010 -- that you and the plaintiff ever 14 talked about him providing any money? 15 MR. OCHOA-CRONFEL: Your Honor, I'm 16 going to object. There's a continuing pattern of 17 Mr. Scarborough putting words in the witness' mouth. 18 He's continuing to characterize testimony -- 19 THE COURT: He just asked when did she 20 first talk -- 21 MR. OCHOA-CRONFEL: But he's 22 characterizing, Your Honor. Halloween -- we didn't 23 hear anything about Halloween. 24 THE COURT: Overruled. 25 You can answer that. 47

1 A. When I got to Iowa -- I needed to do 2 something with my belongings, and so I talked to 3 Lee -- 4 Q. (BY MR. SCARBOROUGH) The question -- 5 A. -- probably November of 2014 -- or 2000 -- 6 excuse me. It would have been the day I got there. 7 2010. 8 Q. November of 2014? 9 A. November -- 10 Q. Excuse me. We both misspoke. 11 A. I know. 12 Q. Let's go back. It was -- you're saying 13 it's November of '10 -- 14 A. Yes, after I got back to Iowa. 15 Q. -- is the first time there was ever any 16 discussion? 17 A. Yes. Yes, sir. 18 Q. Okay. Now, let's talk real briefly about 19 the trip to Dallas. You understand that -- well, let 20 me ask it this way: By this time frame, December of 21 2010, how long had you been divorced from the 22 plaintiff? 23 A. For a number of years. 24 Q. '91? 25 A. Since '91 to current. 48

1 Q. So 19 years? 2 A. Yeah, 19 years plus. 3 Q. Had y'all continued to have a relationship? 4 A. He adopted my first child, and we had 5 another child together. And so even though we've 6 been divorced, we've been in constant contact because 7 of the kids. 8 Q. What conversation did you have with the 9 plaintiff about where you would first meet? Was it 10 Dallas or somewhere else? 11 A. It was brought -- I told Lee I was trying 12 to find a place for me to be able to stay while I was 13 in Iowa, and I was surprised at how reasonable the 14 costs were on houses. I couldn't find a rental 15 house, but I talked to him that I was looking at 16 properties or a place that I could go. And so that 17 would have been in November of 2010. 18 But -- would you repeat the question? 19 I'm not sure what I'm -- I was trying to respond. 20 Q. I was checking on my time, and I'm not even 21 for sure that it was responsive. Let me try to move 22 on. I don't want to take too much time. 23 Yeah, the question I was asking is, 24 did you have a conversation with Mr. Farris about him 25 coming to Iowa to discuss this? 49

1 A. He wanted to come to Iowa to discuss it. 2 Q. What was said? 3 A. He said he wanted to fly up to Iowa to see 4 me and we could talk about it there in Iowa. 5 Q. Where did he say he wanted to stay? 6 A. He wanted to stay with me, but I was 7 staying -- 8 MR. OCHOA-CRONFEL: I'm going to -- 9 A. -- with my mom -- 10 MR. OCHOA-CRONFEL: -- object again to 11 the leading nature of the questions, Your Honor. 12 It -- where did he say he wanted to stay? I mean, 13 that's -- 14 THE COURT: Overruled. 15 MR. OCHOA-CRONFEL: -- assuming that 16 he said that he wanted to -- 17 THE COURT: Overruled. 18 A. He wanted to come to Iowa, but I told him 19 there was no place for him to stay at Mother's house. 20 It was like a hospital at that time, and there was 21 barely room for me. And I told him he would have to 22 get a hotel. When I told him that, he said, Well, 23 then, why don't you meet me in Dallas. 24 Q. (BY MR. SCARBOROUGH) So is it -- was it 25 his idea to meet in Dallas? 50

1 A. Yes, sir, it was. 2 Q. Did you meet him in Dallas? 3 A. I did. 4 Q. Did you spend a weekend there together? 5 A. I did. 6 Q. Stayed in the same hotel or motel room? 7 A. Yes, sir, we did. 8 Q. From when to when? 9 A. It was the weekend before Christmas. And 10 it was -- he picked me up on a Friday and took me 11 back to the airport at DFW on Sunday morning. 12 Q. At that point in time did you -- had you 13 found the condo that you wanted to buy and ultimately 14 bought in February of '11? 15 A. I had found a number of properties, but 16 there wasn't a specific property that I was trying to 17 focus on. 18 Q. My question that you didn't answer is, had 19 you found the specific one that you bought in 20 February? 21 A. I'd seen it, yes, sir. 22 Q. You'd seen it. 23 A. Yes. 24 Q. Okay. Did you -- so you had a number of 25 properties? 51

1 A. Yes, I -- yes. 2 Q. Okay. Did you know how much money was 3 going to be needed to close that house? 4 A. There was never a discussion about specific 5 amounts or specific property. 6 Q. Okay. You understand that the merits of 7 this case -- Mr. Farris says -- we're going to argue 8 that but we're not today. He says it was a loan; you 9 say it was a gift. Correct? 10 A. Yes, sir. 11 Q. Okay. Is there any dispute about the fact 12 that whether it was a loan or whether it was a gift, 13 that the money was provided by Mr. Farris? 14 A. There is no dispute. 15 Q. And when did that money come? 16 A. In February 2011. 17 Q. Okay. Was there any agreement reached 18 between you and him while you were there in Dallas, 19 or was it a general discussion? 20 A. It was a discussion. It was more of a 21 visit. It wasn't just about this topic, but there 22 was just a general discussion about it. 23 Q. Okay. You heard what he said the weekend 24 was about -- 25 A. Yes, I have. 52

1 Q. -- in his deposition. 2 A. Yes. 3 Q. What did he say in his deposition that the 4 weekend was about? 5 A. He just wanted to get together. 6 Q. With regard to the closing, from the time 7 you first talked about it in November of 2010 until 8 it closed in February 28 of 2011, did you ever come 9 back to Texas for any reason regarding that? 10 A. No, sir, I didn't. 11 Q. Were there communications by e-mail and 12 telephone during that period of time? 13 A. Several, yes. There was a lot of 14 communication. 15 Q. Was Mr. Farris required by the lender to 16 provide financial information and detailed 17 information? 18 A. Yes, sir, he was. 19 Q. And did he provide that information either 20 to you or directly to the lender? 21 A. Yes, sir, he did. 22 Q. And was there initially going to be a 23 traditional mortgage? 24 A. We were both under the assumption that 25 would be the way to go, and so that's what we applied 53

1 for, was a traditional mortgage. 2 Q. Was that granted or not? 3 A. No. It was turned down by two different 4 sources. 5 Q. Okay. Having to do with you, him or both? 6 A. Both. 7 Q. And from then was there another method of 8 financing? 9 A. There was. I was with my mother at the 10 kitchen table when we found out that we couldn't get 11 a mortgage. The first mortgage had been declined. 12 And she called a friend of hers named Gary Buelt that 13 was a vice president of an Iowa bank and explained 14 the situation and that how I would be going to work 15 and I was going to be staying in Iowa, and that my 16 ex-husband was going to be gifting this money. 17 And he introduced us to -- or me, I 18 had never met her before, Yvonne Silvers. And she 19 was with Bankers Trust, and that's the person that 20 tried to work out financing for us. 21 Q. Do you know -- did that person communicate 22 directly with the plaintiff regarding this 23 transaction? 24 A. Yes, she did. 25 Q. How do you know that? 54

1 A. I know that because not only did I see him 2 copied on e-mails, but I would talk to him about what 3 was at hand or whatever had happened that day, and he 4 would tell me that he had talked to her. 5 Q. All right. Now, after the closing, were 6 you asked for and did you provide a copy of the 7 closing papers? 8 A. Yes, sir, I did. 9 Q. And in the deed there is -- it may or may 10 not be in evidence, depending on the Court's ruling. 11 Are both your names in the deed typed in there and 12 his name stricken out? 13 A. Yes, sir. 14 Q. Did you have anything to do with striking 15 that name out of there? 16 A. Absolutely not. 17 Q. Was -- were you -- were you surprised when 18 you saw that, or did you know about it ahead of time? 19 A. I was surprised when I first saw it because 20 we were not accepted to have a traditional mortgage. 21 What Yvonne came up with was a line of credit note 22 that was going to be in-house in the bank where she 23 could do a three-year note that was based on treasury 24 bonds and that I could later turn it into a 25 traditional mortgage. But it was a solution because 55

1 I didn't have a job at that time and -- 2 MR. OCHOA-CRONFEL: I'm going to 3 object to the answer as not responsive, Your Honor. 4 THE COURT: Sustained. 5 Q. (BY MR. SCARBOROUGH) All right. Let me 6 just -- let's go question and answer. That's what 7 the rules are. 8 A. Okay. 9 Q. Did you mail him the information and, in 10 that, did it contain a deed where his name was 11 stricken? 12 A. Yes. 13 Q. Were you trying to hide that in any way? 14 A. Absolutely not. 15 Q. Did you know about it -- at the time prior 16 to the closing did you know that's the way it was 17 going to be? 18 A. Yes, sir, I did. 19 Q. And did you have a conversation with 20 Mr. Farris so that he knew about that? 21 A. He knew the same information that I did. 22 Q. Okay. You understand he says he didn't? 23 A. I hear that. 24 Q. Okay. Now, when did you mail all those 25 closing documents to him? 56

1 A. I believe I was able to get copies of 2 everything and I sent it to him in April 2011. 3 Q. The documents that Mr. Cronfel has -- I 4 think his envelope says April 21st, 2011. 5 A. That sounds right. 6 Q. Now, everything with regard to this 7 transaction happened between November of 2010 and 8 when you mailed him all of the information in -- on 9 April the 21st of 2011. 10 A. Yes, sir. 11 Q. Very briefly, I want to go through all of 12 your contacts in Texas since the December -- we've 13 already covered that one. 14 A. Okay. 15 Q. All right. So let's move on. 16 Post-closing, when's the first time 17 you ever came back to Texas after that closing, 18 February of 2011? 19 A. After my mother passed away in 20 February 2012. 21 Q. So a year later? 22 A. Yeah. 23 Q. And the purpose of that was to do what? 24 A. They wanted to have a ceremony up in 25 Farmersville and try to bury her ashes at a family 57

1 grave. 2 Q. Okay. After that, when's the next time you 3 came back to Austin for any -- to Texas for any 4 reason? 5 A. I believe it was for James Armstrong's 80th 6 birthday. 7 Q. So you -- is he a friend of yours? 8 A. He's a dear friend. He's like a family 9 member, but we're not related. 10 Q. Give me the date on that. 11 A. It was a big event at the Driskill. It was 12 like a three-day event. And it was -- 13 Q. I want the date. 14 A. It was -- May 10th, I believe, was his 15 birthday. So I flew in that week. 16 Q. And did that coincide with one of your 17 children's birthdays? 18 A. My son's birthday was that Sunday, May 19 13th. And so if -- I wanted to go to the party but 20 also see my son for his birthday. 21 Q. And are those the reasons that you came 22 back, for the birthday party of your friend, 80th, 23 and for your son? 24 A. Exactly. 25 Q. While here, did you give Mr. Farris a check 58

1 for $15,000? 2 A. I did. I brought it to him in person. 3 Q. Was that in repayment of a loan or 4 something else? 5 A. No. It was not a repayment for a loan. He 6 had said he was having some financial problems with 7 payment from clients of his business. He didn't go 8 into detail, but I told him I would do what I could, 9 and I gave him a check for $15,000. 10 Q. That was May of 2012? 11 A. Yes, sir. 12 Q. When's the next time you came to Texas for 13 any reason? 14 A. I believe it was the following spring, 15 2013. This is when my mother -- her estate's finally 16 wrapped up. And I knew that my son was getting 17 married, and I wanted to take a trip down to Austin 18 to see what the prospects were if I did come back. 19 Q. Prospects for coming back to Texas? 20 A. Right, coming back to Austin. 21 Q. Do you know what month that was in '13? 22 A. I believe it was June, Two Thousand -- 23 wait. Yeah, 2013. 24 Q. Okay. 25 A. June. 59

1 Q. And did you interview for a job while you 2 were here? 3 A. I did. 4 Q. Did you get that job? 5 A. I did not. I interviewed on the phone when 6 I was in Iowa, and they wanted me to come see them, 7 and that's why I came down, was for the interview. 8 Q. Very briefly because we've already touched 9 on it, you moved back in what month? 10 A. I moved back the end of July, first of 11 August, 2013. 12 Q. And you lived here -- by the way, did you 13 rent a place, or did you live rent free? 14 A. I stayed at a friend's guest house out in 15 Lakeway. They live primarily in Florida. And so I 16 just stayed as a guest. 17 Q. Now, you testified earlier that all your 18 belongings had been shipped up to Iowa in December of 19 2010. 20 A. Yes, sir. 21 Q. Did they stay in Iowa? 22 A. My belongings never left Iowa because I 23 didn't know what was going to happen in Texas, and I 24 didn't have a place. So everything stayed in Iowa. 25 Q. And your son's wedding was February of -- 60

1 A. February 28 of 2014. 2 Q. And were you -- during that period of time 3 you got a job, I think you've testified to. 4 A. Yes, sir. 5 Q. You used your Texas real estate -- not 6 real estate. Excuse me. 7 A. Insurance. 8 Q. Texas insurance license. 9 A. Yes, sir. 10 Q. In part of your work while you were here. 11 A. Yes, sir. 12 Q. And, in fact, did Mr. Farris even -- did he 13 ask you to do any work for him? 14 A. He asked me for an insurance quote for some 15 car insurance, but he never took out insurance with 16 me. 17 Q. Okay. And you did that while you were in 18 Texas for him? 19 A. Yes, I did. 20 Q. And when did you move back to Iowa? 21 A. I moved back to Iowa the end of April, 22 2014. 23 Q. And with regard to anything that touches on 24 Texas, you've already testified that you've changed 25 your licenses in September of '14; is that right? 61

1 A. Yes. 2 Q. Iowa to a resident in Texas to a 3 nonresident. 4 A. Yes, sir. 5 Q. Now, again, why was the delay -- if you 6 went back in April, why did you wait till September 7 to do that? 8 A. Because I didn't have a permanent address. 9 You don't want to put down a temporary address on a 10 record for a document, so I waited until we closed on 11 a house. 12 Q. And did you have a job? 13 A. And I didn't have a job. I started in 14 September. So that's when I changed it. 15 Q. Okay. Does Iowa have a state income tax? 16 A. Yes, they do. 17 MR. SCARBOROUGH: I'd like to have 18 these marked. 19 (Defendant's Exhibits Nos. 1 through 4 20 were marked.) 21 Q. (BY MR. SCARBOROUGH) These are Exhibits 1 22 through 4. Would you identify them for the Court? 23 MR. SCARBOROUGH: And for the record, 24 Your Honor, Mister -- 25 A. These are copies -- 62

1 Q. (BY MR. SCARBOROUGH) Hold on. Let me say 2 something. 3 A. Oh, I'm sorry. 4 MR. SCARBOROUGH: Mr. Cronfel has said 5 he has no objection to these. 6 Q. (BY MR. SCARBOROUGH) What are they? 7 MR. OCHOA-CRONFEL: That's correct, 8 Your Honor. 9 THE COURT: I'll go ahead and admit 1 10 through 4. 11 (Defendant's Exhibits Nos. 1 through 4 12 admitted.) 13 A. They're copies of my tax returns from 2010 14 to 2013. 15 Q. (BY MR. SCARBOROUGH) Why do you have to 16 file the tax returns? Were you there the entire year 17 of 2010? 18 A. No, but that's where I was living when it 19 was time to do the taxes. 20 Q. If you lived in Iowa for any part of the 21 year, do you have to file a tax return? 22 A. For their state income tax you file a 23 separate return. 24 Q. Okay. And then in '11 you filed one? 25 A. I did for the two months that I was there 63

1 for November and December. 2 Q. For -- that would be -- 3 A. In 2010. 4 Q. -- '10. You filed one for '11? 5 A. I did. 6 Q. Filed one for '12? 7 A. Uh-huh. 8 Q. Is that correct? 9 A. Yes, sir. 10 Q. You filed one for '13, even though you 11 weren't there the whole year? 12 A. No, but I filed one for the time I was 13 there. 14 Q. And then in '14 -- we don't have '14 for 15 some odd reason. I'm not sure why. Did you file one 16 for '14 as well? 17 A. Yes, sir, I did. 18 Q. And for the period of time you were in Iowa 19 when you we want back? 20 A. Yes. They prorate for only the time here 21 in the -- 22 MR. OCHOA-CRONFEL: I'm going to 23 object to the leading nature of the questions again, 24 Your Honor. 25 THE COURT: Sustained. 64

1 Q. (BY MR. SCARBOROUGH) Did you file a tax 2 return, even though we don't have a copy of it, Iowa 3 state income tax return for 2014 for the portion 4 of -- 5 A. Yes, sir, I did. 6 Q. -- for the portion of the year that you 7 were there? 8 A. Yes, sir. 9 MR. SCARBOROUGH: Pass the witness. 11 BY MR. OCHOA-CRONFEL: 12 Q. Ms. Landa, this lawsuit centers around 13 Mr. Farris providing some money that you used as a 14 down payment on a house that you purchased in Iowa. 15 Correct? 16 A. A house that was purchased in Iowa, yes. 17 Q. Okay. And you don't dispute that 18 Mr. Farris provided the money. Correct? 19 A. Absolutely not. 20 Q. Okay. So the big dispute is to what -- the 21 big dispute is as to whether or not the money was a 22 loan or a gift; isn't that correct? 23 A. Yes, sir. 24 Q. Okay. So beginning sometime in 25 December 2010 and going through at least February of 65

1 2011, you and Mr. Farris were having discussions over 2 the phone regarding his providing money for -- as a 3 down payment for the purchase of this house. 4 Correct? 5 A. Yes, sir. 6 Q. Okay. And some of those discussions took 7 place -- those communications, they took place via 8 e-mail, correct, some of them? 9 A. I would send him -- 10 Q. Okay. And some of -- 11 A. -- copies of -- 12 Q. -- them took place over the telephone. 13 Correct? 14 A. I would send him e-mails of listings that I 15 saw. 16 Q. Okay. And some of them took place face to 17 face, i.e., Dallas. Correct? 18 A. Yes, sir. 19 Q. Okay. And some communications involved 20 correspondence in the form of e-mail between you, 21 Mr. Farris and third parties, such as realtors or 22 bank personnel. Correct? 23 A. Yes, sir. 24 Q. Okay. And throughout all of these contacts 25 between you and Mr. Farris, Mr. Farris was a resident 66

1 of Texas. Correct? 2 A. Yes, sir. 3 Q. Okay. And you were aware that Mr. Farris 4 was a resident of Texas. Correct? 5 A. Yes, sir. 6 Q. Okay. And you were aware that you were 7 obtaining funds that you would be using for a down 8 payment on the purchase of a house from a resident of 9 Texas. Correct? 10 A. He was -- yeah, he lives in Austin. 11 Q. Okay. In your discussions with Mr. Farris 12 regarding these funds, you represented to him -- did 13 you represent to him that his name would be on a 14 deed? 15 A. I was totally on board for that. That was 16 our agreement. 17 Q. Okay. But his name was stricken from the 18 deed regarding the house. Correct? 19 A. The house did not get what we -- his 20 name -- his name was scratched off on the deed. 21 Q. Okay. So ultimately on February 24th, 22 25th, there were two separate wire transfers from 23 Mr. Farris here in Texas to a bank in Iowa which 24 comprise the down payment on the house in Iowa; is 25 that correct? 67

1 A. That was part of the requirements from the 2 bank, was that we had a bank account there for the 3 transaction. 4 Q. So those two wires came in the form of -- 5 the money came in the form of two wires from Texas in 6 February of 2011. Correct? 7 A. Yes. And the account was -- 8 Q. And they came from my client who was a 9 Texas resident. Correct? 10 A. Yes. The account was -- 11 Q. And the money came -- 12 THE COURT: Okay. Guys? 13 MR. OCHOA-CRONFEL: I'm sorry. 14 THE COURT: You cannot talk over each 15 other -- 16 MR. OCHOA-CRONFEL: Sorry. 17 THE COURT: -- if you want her to make 18 a record. 19 MR. OCHOA-CRONFEL: Sorry about that, 20 Your Honor. 21 MR. SCARBOROUGH: Were you saying 22 something? 23 A. The account was set up in both our names as 24 per the original application that we requested for 25 the loan. 68

1 Q. (BY MR. OCHOA-CRONFEL) And the money came 2 from Texas. Correct? 3 A. Yes, sir. 4 Q. Okay. And on February 28, 2011, thanks at 5 least in part to the money provided by Mr. Farris for 6 the down payment, you closed on the house. Correct? 7 A. Yes. 8 Q. Okay. Now, after you closed on the house, 9 you and Mr. Farris continued to have contact 10 regarding the transaction. Correct? 11 A. We -- we had constant contact through this 12 period. 13 Q. Okay. 14 A. And he knew that he wasn't going to have to 15 sign any documents. 16 Q. Okay. Well, he asked you about the closing 17 documents, didn't he? 18 A. He wanted -- yes, he asked for -- and I 19 sent him a copy. 20 Q. And in April 2011 you sent him a package 21 that you contend contained those closing documents in 22 response to those inquiries. Correct? 23 A. I sent him a copy of everything I had. 24 Q. Okay. And after you sent him that package, 25 you and Mr. Farris continued to have contact 69

1 regarding the transaction. Correct? 2 A. Yes. 3 Q. And that was regarding telephone -- by 4 telephone? 5 A. Telephone, e-mail, text. 6 Q. And. Now, he discussed with you paying 7 back that loan during that time, didn't he? 8 A. He only brought up payment for that loan 9 when I would not let him come see me because my 10 mother was terminally ill. And he would bring it up 11 as a threat. 12 Q. Okay. In May 2012 you traveled to Austin. 13 Correct? 14 A. Yes, sir, I did. 15 Q. Okay. And that trip was between May 9th 16 and May 13th. Correct? 17 A. Yes, sir. 18 Q. Okay. And during that trip you gave 19 Mr. Farris a check for $15,000; is that correct? 20 A. I did. 21 Q. Okay. And you characterized that money as 22 a gift from you. Correct? 23 A. He has -- I did not use that word, but he 24 has helped me in the past, and I was able to help him 25 and so I helped him as well. 70

1 Q. And you previously stated in your testimony 2 a few minutes ago that -- that he was having some 3 financial problems; is that correct? 4 A. That's what he told me. 5 Q. Okay. Now, you remember your deposition, 6 Ms. Landa. Correct? 7 A. Yes, sir. 8 Q. Day before yesterday. 9 A. Uh-huh. 10 Q. Okay. Do you remember stating in that 11 deposition that -- bear with me one second here. 12 You remember stating that my client 13 has plenty of money? 14 A. I stated that because that was a different 15 time. He -- from 2013 -- later he inherited, after 16 his mother passed away, and he told me he was doing 17 very well and buying other real estate in Austin. 18 Q. And in fact you know that my client has 19 never had trouble with money; isn't that correct? 20 A. I don't know exactly what Lee's finances 21 are, only what he tells me. 22 Q. Okay. So -- all right. 23 Court's indulgence. 24 Now, after Mr. Farris gave you that 25 check, you and Mr. Farris continued to have contact 71

1 regarding the transaction. Correct? 2 A. We had -- he was always calling me or 3 checking on me, yes. 4 Q. Okay. And he continued to ask you about 5 getting paid back on that loan, didn't he? 6 A. He would bring it up when I would not want 7 him to come to Iowa to see me. 8 Q. Now, in May 2013, you sent Mr. Farris a 9 note via the U.S. mail, didn't you? 10 A. Yes, I did. 11 Q. Okay. And that note, which was dated 12 May 29th -- and I'll show it to you if you need me 13 to -- 2013, thanked Mr. Farris for some money -- 14 MR. SCARBOROUGH: Excuse -- excuse me. 15 He's talking about a piece of evidence that's not 16 been admitted yet. And I believe it's one of the 17 ones to which I have an objection because I believe 18 it goes to the merits of the case on whether it was a 19 gift or a loan, if it's what I'm thinking it is. 20 MR. OCHOA-CRONFEL: May I approach, 21 Your Honor? 22 THE COURT: Yes. 23 Are you going to mark it? 24 MR. OCHOA-CRONFEL: Yes. Yes, ma'am. 25 Well, I'll just put a number on it. 72

1 MR. SCARBOROUGH: What number is it? 2 MR. OCHOA-CRONFEL: No. 1, sir. 3 That's our first. 4 THE COURT: Any objection to 1? 5 MR. SCARBOROUGH: Yes. 6 MR. OCHOA-CRONFEL: Yes, Your Honor. 7 MR. SCARBOROUGH: I do have an 8 objection to 1. 9 THE COURT: Go ahead. 10 MR. OCHOA-CRONFEL: Okay. And -- 11 THE COURT: No, no, no. What is the 12 objection? 13 MR. SCARBOROUGH: My objection is 14 relevance as to this hearing because this goes to 15 whether it was or was not a gift. It's not relevant 16 to this dispute. The time frame of this is May of 17 2013. And it's talking about whether -- this 18 literally goes to whether it was a loan or a gift. 19 THE COURT: Why is this relevant to 20 this hearing? 21 MR. OCHOA-CRONFEL: It's -- it's 22 relevant for two purposes, Your Honor: It's relevant 23 to show ongoing contacts as is required by the law, 24 contacts whether by mail, by phone, by e-mail, or by 25 personal appearance. So it goes to the minimum 73

1 contacts for jurisdictional purposes. But it's also 2 relevant, Your Honor, to show the credibility of the 3 witness or the lack thereof. 4 THE COURT: How much -- how much money 5 did he give her? 6 THE WITNESS: For the loan on the 7 house? $88,000. 8 THE COURT: Okay. 9 MR. OCHOA-CRONFEL: And, Your Honor, 10 further, the note -- this note references the 11 transaction that we're speaking about. 12 THE COURT: The objection is 13 overruled. 14 1 will be admitted. 15 (Plaintiff's Exhibit No. 1 admitted.) 16 MR. OCHOA-CRONFEL: Okay. May I 17 approach the witness, Your Honor? 18 THE COURT: Yes. 19 A. Thank you. 20 Q. (BY MR. OCHOA-CRONFEL) Okay. Now, 21 Ms. Landa, you're looking at Plaintiff's Exhibit 22 No. 1. Do you recognize that note? 23 A. Yes, sir, I do. 24 Q. And is that from you? 25 A. Yes, sir, it is. 74

1 Q. Okay. And that note references a -- that 2 note references an additional 15 -- 10,000-dollar 3 loan that you obtained from my client right around 4 that time; is that correct? 5 A. I'm not sure what that 10,000 represents. 6 Q. Okay. 7 A. It could -- it might have been something 8 other. I don't think that's the case. 9 Q. And it also -- it also references that you 10 paid my client $15,000 in 2012. Correct? 11 A. I wrote him a check for 15,000. 12 Q. Right. And nowhere does it say it's a 13 gift. Correct? 14 A. No, it doesn't say that. 15 Q. And it further says, at the bottom toward 16 the end, "I thank you for your love and support in my 17 life. I do not have figures from the house closing 18 with me from 2011 but hope that this will suffice." 19 Correct? 20 A. Uh-huh. 21 Q. All right. 22 MR. SCARBOROUGH: Let me remind you 23 not to say "uh-huh"; to speak audibly. 24 THE WITNESS: Yes, sir. 25 A. Yes, sir. 75

1 THE WITNESS: Thank you. 2 Q. (BY MR. OCHOA-CRONFEL) Now, after you sent 3 this note, you and Mr. Farris continued to have 4 contact regarding the transaction. Correct? 5 And when I say "the transaction," I'm 6 referring to the closing of the house and the loan of 7 the money. Correct? 8 A. We -- we talked, but it wasn't just about a 9 transaction. 10 Q. But you talked about that transaction and 11 that money. Correct? 12 A. We talked about a lot of things but, yes, 13 that was maybe something that he would bring up. 14 Q. Okay. And he continued to ask you to 15 get -- get paid back, didn't he? 16 A. He would bring up the money when there was 17 something that I wasn't doing to please him, or I 18 wasn't letting him come see me. 19 At the time this note is written, I've 20 just learned that our son is going to get married, 21 and I'm trying to do everything I can to be 22 supportive. And it's a very happy note, and that's 23 what was making me consider moving back to Texas, to 24 be part of this. 25 MR. OCHOA-CRONFEL: And I object to 76

1 the nonresponsiveness of the answer, Your Honor. 2 THE COURT: Sustained. 3 MR. OCHOA-CRONFEL: Okay. 4 Q. (BY MR. OCHOA-CRONFEL) My client, after 5 this time, at various periods in time, would ask you 6 to pay back the note. Correct? 7 A. Yes. He would bring up -- 8 Q. All right. 9 A. -- a lot of things. 10 Q. And, in fact -- 11 MR. OCHOA-CRONFEL: And I think you've 12 objected to this one, too, Mr. Scarborough, so we're 13 going to have to address that. 14 It's this text, the text. You 15 objected to the text. Right? 16 MR. POTTER: Which one is that? 17 MR. OCHOA-CRONFEL: Give me -- 144. 18 MR. SCARBOROUGH: Which one? 19 (Discussion off the record.) 20 MR. OCHOA-CRONFEL: It's this one. 21 MR. POTTER: What's the Bates number? 22 MR. OCHOA-CRONFEL: 150, sir. 23 MR. POTTER: 150. 24 MR. OCHOA-CRONFEL: You objected to 25 this. Correct? 77

1 MR. SCARBOROUGH: Yes. 2 MR. OCHOA-CRONFEL: Okay. May I 3 approach, Your Honor? 4 THE COURT: Yes. 5 Are you going to mark this? 6 MR. SCARBOROUGH: Give her the one 7 that's got the -- 8 MR. OCHOA-CRONFEL: Oh, I'm so sorry. 9 I apologize, Your Honor. 10 THE COURT: That's okay. 11 Any objection to 2? 12 MR. SCARBOROUGH: Yes, Your Honor. 13 Again, you'll notice what the highlighted -- or I 14 assume it's highlighted. It's dated September the 15 30th of 2014. For the record, I will state -- we 16 haven't gotten there yet, but there was a demand 17 letter from Mr. Cronfel dated in late August. This 18 is after that fact. And it talks about -- it goes 19 only to the issue of merits of the case because he's 20 saying, I loaned you money. I'm supposed to be the 21 co-owner. That goes to his merits of the claim, but 22 it doesn't have anything to do with the hearing that 23 we're here for today. 24 I object to it on the basis of 25 relevance to today's hearing. 78

1 THE COURT: Mr. Ochoa-Cronfel? 2 MR. OCHOA-CRONFEL: Your Honor, it's 3 going to be the same argument I posed before. This 4 is another contact. Under the case law, this 5 constitutes a contact for jurisdictional purposes, 6 and it also impacts on the credibility of the 7 witness, Your Honor. 8 THE COURT: Overruled. 9 2 will be admitted. 10 (Plaintiff's Exhibit No. 2 admitted.) 11 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, I've -- 12 you've been handed what's been marked as 13 Exhibit No. 2. And I'd like you to look at the 14 highlighted portion of the date of September -- 15 September 30th, 2014. Do you see that there? 16 A. Yes, sir. 17 Q. Okay. And can you read out -- and this is 18 from my client, Mr. Farris. Correct? 19 A. Yes, sir. 20 Q. Okay. Can you read to the Court what it 21 says? 22 A. "Don't even go there. You did send or gave 23 me a check for 15,000 and I loaned you back 10. 24 Don't make me out to be the bad guy. I've done 25 everything to help you and all I get is the wrath of 79

1 Karen. All I did was take" and I'm -- it cuts off on 2 the transcript. 3 Q. Okay. Ms. Landa, I'm sorry but you didn't 4 read the part I was asking you to. It's the second 5 one where it's -- 6 A. Oh, okay. 7 Q. -- September 30th, 2014, ma'am. 8 A. "There is no need for us to talk because we 9 can't. All I get is verbal abuse. The fact is that 10 I loaned you large sum of money to buy a house that I 11 was supposedly co-owner. You said you would pay me 12 back when your mom" -- and it cuts off. 13 Q. Okay. Thank you. 14 So, in fact, you and Mr. Farris had 15 numerous contacts in person, via e-mail, via phone, 16 via text, via regular mail over the course of 17 approximately the last five years regarding this 18 transaction in which he provided you money for the 19 down payment on the house; isn't that correct? 20 A. We talked about a lot of things, not just 21 about the house. The only time he brought it up is 22 when he was upset that I didn't want to see him or 23 have anything to do with him. And he used it as a 24 way to get me upset. 25 Q. Now, Ms. Landa, you lived and worked in 80

1 Austin, Texas, for the better part of the last 20 2 years. Correct? 3 A. Yes, sir. 4 Q. Okay. Well, you -- and you only lived in 5 Iowa from November 2010 through July -- through 6 July 2013, and May 2014 to the present. Correct? 7 A. I grew up in Iowa. 8 Q. That was not my question, ma'am. 9 A. Okay. 10 Q. Shall I try it again? 11 A. Will you, please -- 12 Q. Yeah. 13 A. -- restate the question? 14 Q. Okay. During the last 20 years, let's just 15 put it that way, you only lived in Iowa from 16 November 2010 through July 2013. Let's start with 17 that. Is that correct? 18 A. Yes, sir. 19 Q. Okay. And after that, from May 2014 to the 20 present; is that correct? 21 A. Yes, sir. 22 Q. Okay. All right. 23 Now, you've held an insurance license 24 with the Texas Department of Insurance from 25 April 1987 to the present; isn't that correct? 81

1 A. Yes, sir. 2 Q. Okay. And, in fact, as recently -- and I 3 think you testified to this before. As recently as 4 January 2014, you were working on getting insurance 5 quotes from my client, Mr. Farris, correct, here in 6 Texas? 7 A. He asked for me to prepare an insurance 8 proposal for him, and I did. 9 Q. Okay. So the answer is yes? 10 A. Yes. 11 Q. Okay. And you were doing business in 12 Westlake as Karen Landa Insurance during 2014. 13 Correct? 14 A. I opened up my agency December 1st, 2013. 15 Q. And, in fact, as recently as May 2014 and 16 August -- and August 2014, you were a member and/or 17 sponsor of the Westlake Hills Chamber of Commerce. 18 Correct? 19 A. I joined the Westlake Hills Chamber of 20 Commerce when I was hired by American National 21 Insurance as part of my marketing strategy to try to 22 build an agency that was to be opened. 23 Q. So what I stated is true. Correct? 24 A. I'm not sure what you're referring to is in 25 print. I'm not sure what it is that you're asking 82

1 me, but I did join the Chamber of Commerce for 2 Westlake. 3 Q. And that would be May of -- May of 2014 and 4 August of 2014. Correct? 5 A. No. No, sir. I joined it back in 2013 6 when I took the position. 7 Q. Let me ask the question again. 8 In fact, as recently as May of 2014 9 and August of 2014, you were a member and/or sponsor 10 of the Westlake Hills Chamber of Commerce. Correct? 11 A. I joined the Westlake Hills Chamber of 12 Commerce in the fall of 2013 and it was a 12-month 13 payment that I made as a member. I no longer 14 participated, but because I paid an additional amount 15 of money, I think they used my name for promotions 16 that they may have had, but I was not here. 17 Q. Ms. Landa, do you remember responding to a 18 set of discovery from my client? 19 Do you remember responding to a set of 20 discovery from my client? 21 A. Yes, sir. 22 Q. And it -- and it included requests for 23 admissions? Do you remember that? 24 A. Yes, sir. 25 Q. And one of the admissions was that -- 83

1 MR. SCARBOROUGH: Which one are you 2 talking about? 3 MR. OCHOA-CRONFEL: I'm talking about 4 No. 14. 5 Q. (BY MR. OCHOA-CRONFEL) And as recently 6 as -- and I'll read it to you. Request for Admission 7 14, Please admit that as recently as 2014, Karen 8 Landa Insurance was a member of and a sponsor of the 9 Westlake Hills Chamber of Commerce. 10 MR. SCARBOROUGH: Wait. Wait. That 11 was misread. 12 What it says is, to admit that as 13 recently as 2014, Landa Insurance, Karen Landa, was a 14 member of and/or a supporter of the Westlake Hills 15 Chamber of Commerce, not both. 16 MR. OCHOA-CRONFEL: Right. That's 17 what I said. 18 Q. (BY MR. OCHOA-CRONFEL) Do you remember 19 admitting to that? 20 A. Yes. I signed up for a year membership in 21 2013. 22 Q. Okay. Thank you. 23 Now, in the many years you spent 24 living and working in Austin, you've also worked with 25 a number of nonprofit groups here; isn't that 84

1 correct? 2 A. Yes, sir. 3 Q. And one of those groups was Austin Hospice 4 Community Foundation, and you were on the board of 5 directors. Correct? 6 A. Yes, sir. 7 Q. And you were also a docent of the Texas 8 Governor's Mansion. Correct? 9 A. Yes, sir. 10 Q. Okay. Now, you are also the beneficiary of 11 a marital trust that's here in Texas. Correct? 12 A. Yes, sir. 13 Q. Okay. And that trust is out of Frost Bank. 14 Correct? 15 A. They're my trustee. 16 Q. Yeah. And you've been receiving monthly 17 disbursement from that trust of Frost Bank here in 18 Texas for a number of years. Correct? 19 A. That was set up per my husband's will. 20 Q. Is that correct? 21 A. Yes, sir. 22 Q. Okay. And you've been receiving it, 23 notwithstanding the fact that you're in Iowa -- when 24 you live in Iowa. Correct? 25 A. It doesn't matter where I am; I get the 85

1 distribution. 2 Q. And you will continue to receive the 3 monthly disbursement from that trust here in Texas at 4 Frost Bank until you die. Correct? 5 A. Yes, sir. 6 Q. Okay. Now, you have a cell phone number -- 7 current cell phone number that has an Austin area 8 code. Correct? 9 A. Yes, sir. 10 Q. Okay. And you've had that same telephone 11 number for quite a while. Correct? 12 A. I've kept that because that's how I keep 13 in -- that's how people know me. That's how I list 14 it on credit cards or any kind of business. 15 Q. All right. Ms. Landa, real quick, I want 16 to draw your attention to the special appearance you 17 filed in this matter. 18 MR. OCHOA-CRONFEL: Your Honor, may I 19 approach? 20 THE COURT: Yes. 21 MR. OCHOA-CRONFEL: I would like the 22 Court to take judicial notice of this pleading. And 23 I guess I better mark it because I'm going to use it 24 as an exhibit. 25 MR. SCARBOROUGH: Your Honor, I don't 86

1 think our special appearance should be an exhibit 2 because it's part of the Court's record. It's -- 3 without ever being admitted as a -- 4 THE COURT: This is your special 5 appearance? 6 MR. SCARBOROUGH: It's my -- 7 THE COURT: I can just take judicial 8 notice of it. It's in the record. 9 MR. OCHOA-CRONFEL: Okay. 10 Q. (BY MR. OCHOA-CRONFEL) Now, let's look, 11 amongst the other things -- let's look at Paragraph 12 2-b. Okay? And it says here in 2-b, "Defendant does 13 not now engage and has not engaged in business in 14 Texas or committed any tort, in whole or in part, 15 within this state." 16 Did I read that correctly? 17 A. Yes, sir. 18 Q. That's not true, is it? 19 A. No -- the business that's referred to here 20 is this lawsuit. 21 Q. Okay. And you -- you swore to this. 22 There's a -- if we turn to the second to the last 23 page, ma'am. 24 A. Yes, sir. 25 Q. Let's go back over that. That's your 87

1 signature on the verification. Correct? 2 A. Yes, sir. 3 Q. Okay. 4 A. I'm not an attorney, but this -- this 5 business, I thought it was -- 6 Q. Ma'am, I -- 7 A. -- I thought it referred to the lawsuit, 8 sir. 9 Q. Now, we've discussed a plethora of ways in 10 which you've done business in Texas, correct, today? 11 A. Yes, sir. 12 Q. Now, let's look at 2-d, "Defendant has no 13 substantial connection with Texas arising from any 14 action or conduct of defendant purposefully directed 15 toward Texas." 16 Did it read that correctly? 17 A. Yes, sir. 18 Q. Okay. And that -- that's not true, is it? 19 A. That is true, sir. 20 Q. Okay. 21 A. What is my -- I mean, what is my 22 substantial connection? 23 Q. We'll just leave that -- we'll just leave 24 that the way it is. 25 Let's go to E. Okay. We're just 88

1 about done here, Ms. Landa. I just want to touch on 2 a couple other things. 3 Now, you remember testifying -- well, 4 let me ask you this question: Has Mr. Farris ever 5 loaned you money? 6 A. He has helped me when I needed help and he 7 was able to do so, so yes. He's helped -- he's given 8 me money in the past. 9 Q. Okay. But has it been -- in your opinion, 10 has it been in the form of a loan, or of a gift? 11 A. They were gifts. 12 Q. So is it your testimony that none of the -- 13 none of the money that Mr. Farris has given you -- 14 MR. SCARBOROUGH: Objection, Your 15 Honor. Now we're really going far afield because now 16 we're talking about money that's not related to this 17 lawsuit. And the plaintiff, by his own admission, is 18 suing the defendant for the money that was related to 19 the purchase and acquisition of the Iowa property. 20 He's now talking about other money 21 that's not even related to this lawsuit. I object to 22 it on the basis of relevance. 23 THE COURT: Mr. Ochoa-Cronfel? 24 MR. OCHOA-CRONFEL: Your Honor, this 25 goes directly to credibility. And the reason why 89

1 this is important is because she has testified in her 2 deposition that all of the money that my client gave 3 her was in the form of gifts. And I'm going to 4 impeach her about that because I have evidence that I 5 want to submit that will show directly otherwise. 6 MR. SCARBOROUGH: And, again, that 7 evidence has to do with money that he gave her from 8 March of -- March of 2010? 9 MR. POTTER: Yes. 10 MR. SCARBOROUGH: -- March of 2010 11 through July of 2010. I believe that's correct. 12 And that's -- and it's not involved -- 13 that -- that money is not involved in this 14 litigation. I object to it, Your Honor. 15 MR. OCHOA-CRONFEL: Your Honor, 16 Ms. Landa has testified that all of the money my 17 client has given her has been a gift. My client 18 testifies the very opposite. Those go to the 19 operative facts on the ground that relate to the 20 jurisdictional issues in this case and also go to 21 credibility. 22 THE COURT: I'm going to overrule the 23 objection. 24 I'm going to -- we're going to take a 25 break. I'll let y'all know both of y'all are at 47 90

1 minutes, so that gives you about 28 minutes. 2 MR. OCHOA-CRONFEL: I'm sorry, Your 3 Honor; I didn't hear that last part. 4 THE COURT: Y'all are at 47 minutes. 5 MR. OCHOA-CRONFEL: Okay. 6 THE COURT: So y'all -- each one has, 7 if I'm counting that right -- that's 28 minutes. 8 MR. OCHOA-CRONFEL: Yes, ma'am. 9 THE COURT: Okay. We'll take a 10 15-minute break. 11 MR. OCHOA-CRONFEL: Thank you. 12 THE WITNESS: Thank you. 13 (Recess taken.) 14 THE COURT: You may proceed. 15 MR. OCHOA-CRONFEL: Thank you, Your 16 Honor. 17 May I approach? 18 THE COURT: Yes. 19 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, I'm 20 handing you what's been marked as Exhibit No. 4. 21 MR. SCARBOROUGH: For the record, I 22 assume -- does this include all four checks? 23 MR. OCHOA-CRONFEL: Yes, sir. 24 MR. SCARBOROUGH: For the record, I'm 25 objecting to these, Your Honor, because you'll note 91

1 that the date on them is from March of 2010 through 2 July of 2010. They involve loans -- alleged loans 3 which the defendant will testify is different. They 4 weren't loans. But it -- but by the plaintiff's own 5 admission, they are not involved and are not being 6 sued on in this lawsuit. So we object to them for 7 that purpose. 8 THE COURT: What's the relevance of 9 these? 10 MR. OCHOA-CRONFEL: Your Honor, the 11 relevance of these are, again, to show continuous 12 contacts for general -- 13 THE COURT: These are from 2010? 14 MR. OCHOA-CRONFEL: Right. 15 THE COURT: So I think that these 16 are -- I mean, I think she's already testified to 17 this. If you want to spend, you know, the next 28 18 minutes showing me more checks, that's fine. But I 19 don't think that this is necessary, unless we have 20 something else that's different. 21 MR. OCHOA-CRONFEL: This -- this was 22 really just for purposes of credibility with regard 23 to the issue that all my -- all the money that my 24 client provided to the defendant is gifts. That's 25 it. 92

1 I was going to ask one or two 2 questions, and I'm going to be done. 3 THE COURT: Okay. Overruled. 4 What number do you have? 5 MR. OCHOA-CRONFEL: No. 4, Your Honor. 6 THE COURT: 4 will be admitted. 7 (Plaintiff's Exhibit No. 4 admitted.) 8 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, do you 9 recognize all four checks that are comprised of 10 Deposition [sic] Exhibit No. 4? 11 A. Yes, sir. 12 Q. Okay. And these checks were checks from my 13 client -- of monies from my client to you. Correct? 14 A. Yes, sir. 15 Q. Okay. And in the memo part, what does it 16 say in each one of these checks? 17 A. Loan. 18 Q. Okay. All right. 19 One last question; Ms. Landa, it is -- 20 is it unreasonable to believe that Mr. Farris, who 21 provided you approximately $90,000 for the down 22 payment on the house, didn't expect to get that paid 23 back -- 24 MR. SCARBOROUGH: Objection; 25 relevance. What his expectations were has nothing to 93

1 do with whether this court does or does not have 2 jurisdiction. 3 THE COURT: Sustained. 4 MR. OCHOA-CRONFEL: No more questions, 5 Your Honor. Pass the witness. 6 THE COURT: Can I ask you a question? 7 What -- the money, was it transferred to -- how -- 8 how did that happen? What was the actual -- 9 THE WITNESS: He wired it to an 10 account, and I had sent him the information, like, 11 for a signing card, you know -- 12 THE COURT: Okay. 13 THE WITNESS: -- for a checking 14 account. The bank did a line of credit note and they 15 wanted the funds transferred to their -- in the bank. 16 THE COURT: That's fine. 17 Anything else, Mr. Scarborough? 19 BY MR. SCARBOROUGH: 20 Q. Just a couple of questions with regard to 21 that -- Plaintiff's Exhibit I believe 4, those 22 checks. 23 A. Yes, sir. 24 Q. Did you consider those checks, when that 25 money was provided to you, to be a loan? 94

1 A. No, I did not. 2 Q. Why not? 3 A. Because he never brought it up, or never 4 asked for payment about it, or made any reference to 5 it. When he did things like this, it was usually 6 with a -- he wanted to be close to me. The 7 motivation was to have access to me. He might want a 8 sexual favor. But there was always another intention 9 behind this -- this money that he would give me. 10 Q. Okay. And did that money at all have 11 anything to do with the closing in -- that took place 12 in February of 2011, on the Iowa property? 13 A. It had nothing to do with the transaction 14 on the condo. 15 MR. SCARBOROUGH: No further 16 questions. 17 THE COURT: Anything else, 18 Mr. Ochoa-Cronfel? 19 MR. OCHOA-CRONFEL: No, Your Honor. 20 THE COURT: Okay. You may step down. 21 MR. SCARBOROUGH: The defendant rests. 22 THE COURT: Mr. Ochoa-Cronfel? 23 MR. OCHOA-CRONFEL: Yes, Your Honor, 24 I'm going to call Mr. Lee Farris to the stand. 25 THE COURT: Mr. Farris, come on up. 94

1 A. No, I did not. 2 Q. Why not? 3 A. Because he never brought it up, or never 4 asked for payment about it, or made any reference to 5 it. When he did things like this, it was usually 6 with a -- he wanted to be close to me. The 7 motivation was to have access to me. He might want a 8 sexual favor. But there was always another intention 9 behind this -- this money that he would give me. 10 Q. Okay. And did that money at all have 11 anything to do with the closing in -- that took place 12 in February of 2011, on the Iowa property? 13 A. It had nothing to do with the transaction 14 on the condo. 15 MR. SCARBOROUGH: No further 16 questions. 17 THE COURT: Anything else, 18 Mr. Ochoa-Cronfel? 19 MR. OCHOA-CRONFEL: No, Your Honor. 20 THE COURT: Okay. You may step down. 21 MR. SCARBOROUGH: The defendant rests. 22 THE COURT: Mr. Ochoa-Cronfel? 23 MR. OCHOA-CRONFEL: Yes, Your Honor, 24 I'm going to call Mr. Lee Farris to the stand. 25 THE COURT: Mr. Farris, come on up. 95

1 Mr. Farris, can I have you raise your 2 right hand. 3 (The witness was sworn.) 4 THE COURT: Please have a seat, sir. 5 (Discussion off the record.) 6 THE COURT: You may proceed. 7 MR. OCHOA-CRONFEL: Thank you, Your 8 Honor. 10 having been first duly sworn, testified as follows: 12 BY MR. OCHOA-CRONFEL: 13 Q. Can you please state your name for the 14 record? 15 A. Charles Lee Farris. 16 Q. Okay. And, Mr. Farris, where do reside? 17 A. , Austin, Texas. 18 Q. And how long have you resided in Austin, 19 Texas? 20 A. Since 1976. 21 Q. Okay. Mr. Farris, what do you do for a 22 living? 23 A. I have a brick business and a service 24 company which I do various number of things for new 25 construction homes. 96

1 Q. Okay. How do you know the defendant, Karen 2 Landa? 3 A. I know her from -- known her since 1981, I 4 guess. 5 Q. And what -- what has been your relationship 6 with her? 7 A. Well, we met in 1981, and we got married, 8 had a couple of kids. 9 Q. Okay. 10 A. I think that's -- that was in '85 -- '84 11 and '85 on the children. 12 Q. Did you get divorced? 13 A. We did get divorced in '91. 14 Q. Okay. And how would you describe your 15 relationship with her since the divorce? 16 A. It's been a fairly good relationship. 17 We've stayed in contact because of the children, and 18 we've gotten along. 19 Q. Why are we here today, Mr. Farris? 20 A. Well, I loaned her some money for a down 21 payment on a house, and she's refused to pay me back, 22 and now we're in court. 23 Q. Okay. Can you describe the circumstances 24 under which you came to loan this money to Ms. Landa 25 to the Court, please? 97

1 A. She was in Iowa at the time, and she was 2 taking care of her mom. She was living in her mom's 3 house, and she did not want to stay there. She was 4 having a difficult time living with her mom. 5 She had talked -- we had talked. We 6 continually were talking about things, but she wanted 7 to get her own place. And this is when she 8 approached me as far as the meeting in Dallas, wanted 9 to hook up and let's talk about things. 10 Q. Okay. When did this meeting in Dallas 11 occur? 12 A. December 17th, 2010. 13 Q. 2010. And was -- was it at that meeting in 14 Dallas that you understood for the first time that 15 she was seeking money for a down payment on this 16 house? 17 A. That's -- that's when we talked about -- 18 yes. 19 Q. Okay. And did you reach an agreement with 20 Ms. Landa with regard to her request for this money? 21 A. We did. We did. 22 Q. Can you tell the Court what the terms of 23 that agreement were? 24 A. The agreement was that I would provide the 25 down payment. There was no specific property, but 98

1 she was looking at property. And I would provide the 2 down payment as long as I was on the deed. It was 3 going to be a loan, to be paid back, as long as I was 4 on the deed. 5 Q. Okay. And how were you going to get paid 6 back? 7 A. She promised me she would pay me back on 8 the death of her mom because she had a 150,000-dollar 9 life insurance policy on her mom. 10 Q. Okay. And I think you testified that 11 around that time her mom was ill when she visited 12 with you in Dallas? 13 A. That is correct. 14 Q. Okay. All right. So did you agree to loan 15 her that money? 16 A. At that point in time we agreed on the 17 conditions of it, yes. 18 Q. Did you know how much the money -- how 19 much -- what the amount the money was going to be at 20 that time? 21 A. At that time, no. 22 Q. Okay. Why is that? 23 A. I don't think she had found a specific 24 piece of property that she was going to purchase. 25 Q. Okay. So when you left -- when you-all 99

1 parted ways that weekend, what was your 2 understanding? 3 A. My understanding was she was going to go 4 back to Iowa. She had been looking at some property. 5 I wasn't sure which property she was looking at. But 6 she was going to go back to Iowa and try to find a 7 piece of property that she wanted to live in. 8 Q. Okay. Did you have contact with her soon 9 thereafter? 10 A. Yes. 11 Q. How soon? 12 A. The next day. 13 Q. And what did that contact consistent of? 14 A. I think she had found a piece of property 15 that the bank had control of, and it needed to be 16 finished. 17 Q. How was that communication made to you? 18 A. On the phone. 19 Q. Okay. 20 A. And e-mail. 21 Q. Okay. And what was contained in the 22 e-mail? 23 A. I believe she was stating that she had 24 found a piece of property. It was a townhome. 25 Q. The -- 100

1 A. It was not finished. 2 MR. OCHOA-CRONFEL: Did you object to 3 this? Let me show you. 4 MR. SCARBOROUGH: What is it? 5 MR. OCHOA-CRONFEL: It's Landa 006. 6 MR. SCARBOROUGH: Yeah. 7 MR. OCHOA-CRONFEL: You did? 8 MR. SCARBOROUGH: I did. 9 MR. OCHOA-CRONFEL: Okay. May I 10 approach, Your Honor? 11 THE COURT: Yes. 12 MR. SCARBOROUGH: Your Honor, on this 13 one, as in most of the things I argue about is -- my 14 objection is relevance to today's hearing. It's an 15 e-mail from Ms. Landa to Mr. Farris -- Ms. Taylor, 16 excuse me -- talking about the price and things of 17 that. It just doesn't have anything to do with 18 today's hearing. 19 We object to it for relevance. 20 THE COURT: Why is this relevant? 21 MR. OCHOA-CRONFEL: Your Honor, this 22 is a contact. It's a contact as is required under 23 the case law to permit jurisdiction over the 24 individual defendant. 25 THE COURT: I'm going to sustain that 101

1 objection. 2 MR. OCHOA-CRONFEL: Okay. 3 Q. (BY MR. OCHOA-CRONFEL) So, Mr. Farris, did 4 you have any other contacts besides that contact in 5 that e-mail with Ms. Landa after -- after that 6 e-mail? 7 MR. SCARBOROUGH: Objection to the 8 form of that question because it implies something 9 that's not in evidence. 10 THE COURT: Overruled. 11 A. Yes. 12 Q. (BY MR. OCHOA-CRONFEL) Okay. And what did 13 those contacts consistent of, and what were they 14 about? 15 A. It consisted of the house she was looking 16 at, and we stayed in contact about the decorating, 17 and what needed to be finished, and when the house -- 18 when it was going to close, and things of that 19 nature, pertaining to the house. 20 Q. Okay. And for how long did these contacts 21 continue? 22 A. Up until the closing. Up until the 23 closing. 24 Q. Okay. Mr. Farris, I'm handing you what's 25 been marked as Exhibits 6 and 7. Can you please 102

1 identify those exhibits? 2 MR. SCARBOROUGH: No objection, for 3 the record. 4 A. Those are bank statements. 5 THE COURT: 6 and 7 will be admitted. 6 (Plaintiff's Exhibits Nos. 6 and 7 7 admitted.) 8 Q. (BY MR. OCHOA-CRONFEL) Okay. And are 9 those your bank statements? 10 A. They are my bank statements. 11 Q. And what do those bank statements reflect? 12 A. They reflect a wiring of money up to 13 Bankers Trust in Iowa. 14 Q. Okay. And let's look at No. 6 there. How 15 much does that -- and that's the wiring of the 16 $22,179.86. Correct? 17 A. Correct. 18 Q. Okay. And then if we look at the next one; 19 I believe it's No. 7. We go to Page 3 of that. That 20 reflects a wiring of what, two-thirds -- three -- 21 two-thirds of the way down? Page 3 of No. 7. 22 A. Oh, that would be $87,000. 23 Q. Are you sure? Look that number. 24 A. Oh, I'm sorry. 67,000. 25 Q. Okay. So you wired 22,000-something 103

1 plus -- and 67. About approximately $89,000? 2 A. That is correct. 3 Q. Okay. From Texas to Iowa? 4 A. That is correct. 5 Q. Okay. Now, did this -- did the closing on 6 the purchase of the property in Iowa -- the townhome 7 in Iowa occur? 8 A. Yes, it did. 9 Q. Okay. Now, did you have contacts with 10 Ms. Landa after the closing? 11 A. I did. 12 Q. And what did those contacts consist of? 13 A. Mainly I wanted to get copies of the 14 closing papers, the closing costs of the townhome. 15 Q. Okay. 16 A. I wanted them for my records. 17 Q. And how did you communicate with Ms. Landa 18 about getting those closing documents? 19 A. By phone. I don't think I said -- we were 20 talking maybe over the phone. 21 Q. Okay. And what did you -- did she provide 22 those documents to you upon your request? 23 A. Did not. 24 Q. What did you have to do? 25 A. I continually kept asking her about the 104

1 closing papers. I wanted to see copies of the 2 closing papers. 3 Q. And did you finally get them? 4 A. Finally got an abstract with a warranty 5 deed as a cover letter, which was not what I 6 requested. 7 Q. Okay. 8 A. I requested the closing papers on the 9 house. 10 MR. OCHOA-CRONFEL: There's an 11 objection to this, Your Honor. 12 MR. SCARBOROUGH: Is this one 13 exhibit or two? It's just the -- 14 MR. OCHOA-CRONFEL: It's the big one 15 along with the warranty deed. 16 MR. SCARBOROUGH: Right. That's all 17 one exhibit? 18 MR. OCHOA-CRONFEL: Yes, sir. 19 MR. SCARBOROUGH: Your Honor, again, 20 my objection to this is that this is the material 21 that was mailed to him. And if you'll turn to the 22 second page, the relevance I think that they want to 23 argue is that this shows evidence of fraud because 24 his name is stricken on the warranty deed. 25 There's no evidence that my client did 105

1 that. In fact, she's testified she didn't do it. 2 And it goes to the merits of the case of whether this 3 is a -- this is a loan, as the plaintiff says, or 4 whether it's a gift as the defendant said. I don't 5 think it has any bearing on today's hearing. 6 I object to it for relevance. 7 MR. OCHOA-CRONFEL: Your Honor, I'm 8 not using it to show the fraud. I'm not going to the 9 merits. That's not my purpose. 10 My purpose is to show contacts as 11 required under the case law. Contacts -- this does 12 constitute a contact when communicating with my 13 client over U.S. mail and sending closing documents 14 related to the purchase of the property for which he 15 provided the loan. 16 So this shows continuous systematic 17 contacts -- 18 THE COURT: Overruled. 19 8 will be admitted. 20 (Plaintiff's Exhibit No. 8 admitted.) 21 Q. (BY MR. OCHOA-CRONFEL) Okay. All right. 22 So, Mr. Farris, can you please identify 23 Exhibit No. 8? 24 A. This is a copy of the envelope that this 25 abstract came in. This is not really what I 106

1 requested, but this is what was sent after three 2 months of me continually asking for closing papers. 3 Q. Okay. And did that include a copy of the 4 warranty deed? 5 A. It has a copy of the warranty deed on it, 6 yes. 7 Q. Okay. All right. And when you -- when you 8 saw that warranty deed, how -- how did you feel? 9 A. I -- I mean, the wind was just kind of let 10 out of my sails on the whole deal because -- 11 MR. SCARBOROUGH: Objection to the 12 relevance of how he felt when he saw the deed because 13 it goes to the merits of the case. 14 THE COURT: Sustained. 15 Q. (BY MR. OCHOA-CRONFEL) Okay. And after 16 you received this, did you continue to have 17 communications with Ms. Landa? 18 A. Yes. 19 Q. What were those communications in the form 20 of, generally? How were you communicating with her? 21 A. Well, after receiving that, the main 22 communication was, What happened? Why am I not on 23 this deed? 24 Q. Okay. 25 A. Why am I not on the title? 107

1 Q. Okay. All right. Can you please identify 2 Exhibit No. 9? 3 A. This is a check received from Karen. 4 Q. Okay. 5 MR. OCHOA-CRONFEL: May I offer it in 6 evidence, Your Honor? 7 MR. SCARBOROUGH: No -- no objection. 8 THE COURT: No. 9 will be admitted. 9 (Plaintiff's Exhibit No. 9 admitted.) 10 MR. OCHOA-CRONFEL: I don't think I 11 offered No. 8. 12 THE COURT: You did. I already 13 introduced it. 14 MR. OCHOA-CRONFEL: Okay. Thank you, 15 Your Honor. 16 Q. (BY MR. OCHOA-CRONFEL) I'm sorry, 17 Mr. Farris; can you -- 18 A. This is a check that Karen brought to me as 19 a partial payment on the down payment that I loaned 20 her on the house. 21 Q. Now, you heard her testify during her 22 testimony that this was not a payment but this was a 23 gift to you. 24 A. That is ridiculous. No, it was not. 25 Q. Okay. Were you in financial trouble at the 108

1 time that you got this money? 2 A. Absolutely not. 3 Q. Okay. All right. And when she gave this 4 to you, did she send it to you by mail? Did she hand 5 it to you? What were the circumstances of that? 6 A. We had talked over the phone and she said 7 she was coming to Austin and she had a check for me. 8 Q. Okay. And she handed you that check? 9 A. She came to my house and had a check for 10 me. 11 Q. Okay. All right. And you said she came to 12 Austin. What did she come to Austin for? 13 A. She came for a birthday party, I believe. 14 Q. For a party? 15 A. Yes. 16 Q. Okay. Now, after you got this check, did 17 you have -- continue having communications with 18 Ms. Landa? 19 A. I did. 20 Q. What did those -- what form did those 21 communications take? Telephone? 22 A. Well, I received the check, but at that 23 point in time I was hoping that it was going to be 24 for more. It was not anywhere close to what she had 25 owed me, so ... 109

1 Q. But what I asked you, Mr. Farris, was after 2 you received the check -- 3 A. Yes. 4 Q. -- I understand you were disappointed about 5 the check. But after you received the check, did you 6 continue, thereafter in time, to have communications 7 with Ms. Landa? 8 A. Yes. Yes. 9 Q. In what form were those communications? 10 A. By phone normally. 11 Q. Okay. And what were you talking about when 12 you talked to her over the phone? 13 A. Usually it was by e-mail. It was mainly 14 where is the rest of the money for the down 15 payment -- 16 Q. Okay. 17 A. -- on the house. 18 Q. And -- 19 A. But this was continual. 20 Q. Okay. And had you expected to be paid by 21 then? 22 A. Yes. 23 Q. Why? 24 A. Because her mom had passed and she promised 25 me that in that passing that I would be paid back. 110

1 Q. And you would be paid back from what? 2 A. The loan of the money -- 3 Q. Okay. 4 A. -- on the house. 5 Q. All right. Now, here we are, May of 2012, 6 you get a check. You have communications with her 7 afterwards. Ms. Landa comes -- and she previously 8 testified that she came to visit in 2013? 9 A. That is true. 10 Q. Okay. And did you see her when she came to 11 visit in 2013? 12 A. I did. 13 Q. Okay. Did you-all talk about the loan in 14 2013? 15 A. Yes. 16 Q. Okay. 17 A. We did. 18 Q. Okay. Were you still asking to be paid 19 back? 20 A. Yes. 21 Q. Okay. And when she left to go back to Iowa 22 after that week visit in 2013, did you -- did you 23 have any communications with her? 24 A. Yes. 25 Q. Okay. And what -- what did those 111

1 communications consist of? 2 A. Well, we talked about her coming back to 3 Austin. She wanted to move back to Austin. It was 4 her home. That's where she wanted to be. And she -- 5 that week she had an interview, but she went back to 6 sell her house. 7 Q. Okay. And did you talk about the loan? 8 A. Yes. 9 Q. Okay. And did she sell her house? 10 A. She did. 11 Q. Okay. What happened when she sold her 12 house? 13 A. She moved to Austin. 14 Q. And were you involved in that move in any 15 way? 16 A. I did help her move. Correct. 17 Q. Okay. And -- 18 THE COURT: So she sold the house that 19 you gave her money -- 20 THE WITNESS: Escalade Court, yes. 21 THE COURT: Okay. 22 Q. (BY MR. OCHOA-CRONFEL) And after she sold 23 the house, she moved. Did you have discussions with 24 her about paying you back? 25 A. I did. 112

1 Q. Okay. And what was her response? 2 A. That she would -- she would pay me back 3 when the house sold, that -- out of that money 4 because she had already spent all the money from the 5 inheritance -- or the life insurance policy of her 6 mom. 7 MR. SCARBOROUGH: Again, Your Honor, 8 this -- all of this testimony about the life 9 insurance and about this goes to the merits of the 10 case, and we're not trying that today. 11 Object to it on -- based on relevance. 12 THE COURT: Sustained. 13 Q. (BY MR. OCHOA-CRONFEL) Okay. So did -- 14 did you continue to have communications after she 15 moved to Austin in 2013, July 2013, after she sold 16 the house? 17 A. We did. 18 Q. Okay. Did she pay you? 19 A. No. 20 Q. Okay. And she was here from, she 21 testified, from June, July or August of 2013 through 22 April of 2014. Correct? 23 A. Right. She lived with -- 24 Q. Did you-all -- did you see her while she 25 was here? 113

1 A. Yes. 2 Q. Okay. And did you all spend any time 3 together? 4 A. We did. 5 Q. Okay. And when you -- can you describe to 6 the Court -- did y'all have communications -- 7 A. We had -- 8 Q. -- during that time about your loan? 9 A. -- we had communications on a daily basis. 10 Q. Did you talk about the loan? 11 A. We did. But every time I'd bring it up, 12 she would throw a fit. 13 MR. SCARBOROUGH: Again, Your Honor, 14 we're continuing -- this goes -- 15 THE COURT: Sustained. 16 MR. SCARBOROUGH: -- to the merits of 17 the -- 18 THE COURT: Sustained. 19 Q. (BY MR. OCHOA-CRONFEL) Okay. All right. 20 Now, the testimony is that in April of 2014 she left 21 and went back to Iowa, right, more or less? 22 A. What day? 23 Q. April of 2014. 24 A. That's true. 25 Q. Okay. 114

1 A. True. 2 Q. Okay. Did you have communications with her 3 up and to that point about -- 4 A. A couple months before she moved, we -- I 5 hadn't talked with her. I didn't know she was 6 moving. She didn't tell anybody she was moving. 7 Q. All right. So up -- would it be fair to 8 say that up and to this day you've had communications 9 with her about getting your loan paid back? 10 A. Yes. 11 Q. Okay. Do you have anything else you want 12 to tell the Court, Mr. Farris? 13 A. That's pretty much it. 14 MR. OCHOA-CRONFEL: Pass the witness. 15 THE COURT: Mr. Scarborough? 16 MR. SCARBOROUGH: Very briefly. 18 BY MR. SCARBOROUGH: 19 Q. Mr. Farris, we exchanged depositions on 20 Tuesday of this week. 21 A. Yes. 22 Q. You have a college degree in business and 23 marketing, do you not? 24 A. That is correct. 25 Q. And you've been in business here for over 115

1 30 years. 2 A. That is correct. 3 Q. And you admitted in the deposition that 4 this suit is because you made a loan -- for what you 5 call a loan to your ex-wife for her to buy the condo 6 and that's what this lawsuit is all about. 7 A. That is correct. 8 Q. You admit that there was no discussion on 9 providing money for an Iowa house prior to her moving 10 to Iowa in October of 2010. 11 A. That's true. 12 Q. And you agree that the -- that the first 13 time you ever heard or talked about providing money 14 for a closing, whether it was a loan or a gift, was 15 at the December meeting in Dallas. 16 A. That's true. 17 Q. And your testimony about the Dallas meeting 18 is that you never discussed it before then, and that 19 wasn't the purpose of getting together in Dallas, was 20 it? 21 A. No. 22 Q. In fact you told me in your deposition that 23 you met in Dallas to spend time together, and there 24 was no agenda. 25 A. There was really no agenda. We just agreed 116

1 to meet in Dallas. 2 Q. And, as your words were, spend time 3 together. 4 A. That's part of it, yes. 5 Q. As a couple. 6 A. As a couple. 7 Q. Stayed in the same hotel room? 8 A. Yes. 9 Q. And went to dinner and acted like a couple. 10 A. That is true. 11 Q. Okay. You've already said I believe here 12 you didn't know how much money was going to be 13 needed. Correct? 14 A. That's right. 15 Q. House had not been identified. Correct? 16 A. That's true. 17 Q. You were talking generically about 18 providing money for a house funding, but it was not 19 the focus of the weekend. That was your testimony; 20 isn't that true? 21 A. That's true, starting out. 22 Q. And then when I asked you what the focus 23 was, you told me, was just to get together and enjoy 24 each other's company and have a good time in Dallas. 25 Isn't that your testimony? 117

1 A. That's basically true. 2 Q. And that's what you said in your 3 deposition, and that's what you're saying here. 4 A. That's right. 5 Q. You admit to communicating with the bank 6 and providing financial information on yourself to 7 the bank and to your wife, do you not -- to your 8 ex-wife? 9 A. I'm sorry? Repeat that. 10 Q. You admit that you communicated with the 11 bank that closed this transaction in Iowa, and you 12 provided financial information to them directly and 13 through your ex-wife. 14 A. That is true. 15 Q. You admit that the funeral she came back 16 for to bury her mother's ashes in the spring of 2012 17 had nothing to do with this business transaction. 18 A. That's true. 19 Q. You admit that when she came back in May of 20 2012, that she came for the birthday of her 21 80-year-old friend and for her son and that was the 22 purpose of her coming back and had nothing to do with 23 this loan -- that you call a loan that funded the 24 house; isn't that true? 25 A. Not exactly true. 118

1 Q. Well, let's -- that was a lot, so let's 2 cover it. 3 I understand that she gave you a 4 check. She doesn't deny that. But you testified in 5 your deposition that she came back because of the 6 birthday of her friend and because her son's birthday 7 was at that time. 8 A. That was her main reason. 9 Q. Okay. And in June of '13 when she came 10 back, she came back, not for purposes of this 11 transaction, but she came back because she was 12 looking into the possibility of moving, isn't that 13 true, to -- moving to Austin? 14 A. That was part of it, yes. 15 Q. And that was why she came back, to 16 consider -- because she was thinking about 17 reconnecting with her kids and maybe moving to 18 Austin. True? 19 A. That's true. 20 Q. And then in July when she did come back, 21 July of '13, she came back -- her primary reason for 22 coming back was because your son had been -- had 23 become engaged. He was going to be married in 24 February. And she wanted to renew her relationship 25 with her son and be part of those weddings? 119

1 A. That's partly -- part of it, yes. 2 Q. That's why she came back, isn't it? 3 A. She came back to Austin to live. 4 Q. Right. And she came back to be part of 5 those wedding plans; isn't that true? 6 A. She wanted to go to the wedding. 7 Q. Well, you want me -- I can give you the 8 page number. On Page 48, Line 3 -- 9 A. Well, she did come back the Austin to be 10 part of the wedding. That's true. That's -- that is 11 true. 12 Q. Okay. And that's what you said in your 13 deposition; that's why she came back. 14 A. That's not the only reason she came back. 15 Q. I didn't ask you that. What you said in 16 the deposition is she wanted to renew her 17 relationship with her son, Tyler, who was engaged at 18 the time. Isn't that what you said? 19 A. Definitely. She did. 20 Q. Okay. And when she moved back to Texas in 21 July of '13, she left all of her belongings in Iowa, 22 didn't she? 23 A. Repeat that. 24 Q. When she came back to Texas in July of '13, 25 all of her belongings, furniture and the stuff like 120

1 that, other than clothes and things she needed, 2 stayed in Iowa. 3 A. Most of it did. 4 Q. And while there was no mention of 5 remarriage, you did establish a relationship with 6 her. In fact, you said -- your words were, We were a 7 couple. Right? 8 A. We were. 9 Q. And in terms of the exhibit, the number of 10 which -- 11 MR. SCARBOROUGH: Which was this? 12 MR. POTTER: 8, Plaintiff's Exhibit 8. 13 Q. (BY MR. SCARBOROUGH) Plaintiff's 8, which 14 is this big document -- 15 MR. SCARBOROUGH: May I approach, Your 16 Honor? 17 THE COURT: Yes. 18 Q. (BY MR. SCARBOROUGH) The second page of 19 that exhibit has a warranty deed. And in there your 20 typed name -- her name is in there, and it says, "and 21 Charles Lee Farris, both single, as joint tenants 22 with rights of survivorship and as tenants in 23 common," and that's struck out. You don't have any 24 personal knowledge of who struck that, do you? 25 A. I don't. 121

1 Q. Okay. 2 A. But I didn't know about it before closing, 3 so ... 4 MR. SCARBOROUGH: Objection; 5 nonresponsive. 6 THE COURT: Sustained. 7 Q. (BY MR. SCARBOROUGH) You admit, sir, that 8 after she quit going to UT in around 1980, and that 9 30 years until she left in the summer of 2010, that 10 those contexts, whatever you want to talk about, 11 divorces, marriages, birth of children, insurance, 12 everything, that was while she lived in either Travis 13 or Williamson County, and those contexts all are 14 because she was here living at that time. Right? 15 A. What was that all about -- 16 Q. I'm trying to get you to -- 17 MR. OCHOA-CRONFEL: I'm going to 18 object to that because he's asking Mr. Farris about 19 the state of mind of the defendant. And so he 20 can't -- he's not going to be able to speak to that, 21 what her -- 22 MR. SCARBOROUGH: I'll rephrase the 23 question. I'll rephrase the question. 24 Q. (BY MR. SCARBOROUGH) What I'm trying to 25 get you to admit to this Court is that that 122

1 systematic context, and everything you -- whatever 2 you want to call it, for a period of 30 years, from 3 1980 until the summer of 2010, didn't have anything 4 to do with this transaction. 5 MR. OCHOA-CRONFEL: I'm going to 6 object to that, Your Honor -- 7 Q. (BY MR. SCARBOROUGH) Did it? 8 MR. OCHOA-CRONFEL: -- because he's 9 also asking him to make a legal conclusion. I'm 10 going to object to that. 11 MR. SCARBOROUGH: We know he's not a 12 lawyer. 13 THE COURT: Overruled. 14 You can answer that. 15 Q. (BY MR. SCARBOROUGH) That 30 years didn't 16 have anything to do with the transaction that 17 developed -- that you said for the first time you 18 heard about it in December of -- 19 A. Well, I think it did. 20 Q. Beg your pardon? 21 A. I think so. I think it did. 22 Q. You think that 30 years does relate to -- 23 A. Definitely. 24 Q. Okay. I'm going to do something most 25 lawyers are not supposed to do. Tell the Court how 123

1 that 30 years relates to the transaction that you 2 heard about for the first time in December of 2010? 3 A. We were good friends. We kept in 4 communication all the time. We never let go of each 5 other. 6 Q. Okay. 7 A. This was part of it. 8 Q. Okay. 9 A. I was going to help her buy a house, but I 10 could not give her the money. It was a loan. 11 Q. I understand that's your position. 12 A. Okay. 13 Q. You know that there is reference in 14 documents to there being a gift letter. 15 A. There is. 16 Q. Do you know that? 17 A. I know it now. 18 Q. Right. 19 A. This was never a gift. 20 Q. We may have to take this out of the 21 deposition book. I'm not sure we had anticipated 22 this. 23 MR. SCARBOROUGH: May I approach the 24 witness? 25 THE COURT: Yes, you may. 124

1 Q. (BY MR. SCARBOROUGH) I'm going to hand you 2 what was marked in the deposition as Deposition 3 Exhibit 8, and I'm going to have it marked as the 4 Defendant's Exhibit 5 for purposes of this. 5 And this is an e-mail from Yvonne 6 Silvers. That's the lady you were dealing with. 7 A. Correct. 8 Q. And it's to Ms. Landa. 9 A. Uh-huh. 10 Q. And while you're not copied on it -- and 11 I'm not saying you were -- it references a gift 12 letter from you, and it says, I don't know if this 13 helps, but the gift letter from -- 14 MR. OCHOA-CRONFEL: Your Honor, I'm 15 going to object to this, and I'm going to object to 16 it because it's the very thing that Mr. Scarborough 17 has been objecting to the whole time. This goes to 18 the merits. It has nothing to do with -- 19 THE COURT: You mean, all those 20 objections that I've overruled, those objections? 21 MR. OCHOA-CRONFEL: Okay. 22 THE COURT: Overruled. 23 Q. (BY MR. SCARBOROUGH) This references -- 24 says, "The gift letter from Lee is the only -- is 25 only for the file basically saying it does not need 125

1 to be repaid. Nothing from us is reported to the 2 IRS. Since we have an -- we have you open a primary 3 checking account anyway, what if he deposits those 4 funds from him to you into that joint account." 5 So there is at least some evidence -- 6 and if we also turn -- let me finish that sentence. 7 There's some evidence that there was a gift letter. 8 And I know you say you didn't sign one, but there's 9 some evidence that there was one, isn't there? 10 A. From -- not to me. 11 Q. Right. 12 A. That was hidden from me, that whole e-mail. 13 Q. I understand that you say it was. I'm just 14 talking about whether there was -- was or was not a 15 gift. 16 In Deposition Exhibit 9 to Ms. Landa's 17 deposition, which will be the Defendant's Exhibit 6 18 for purposes of this -- 19 MR. SCARBOROUGH: Brian, you have to 20 keep track of that for me. 21 MR. POTTER: I've got it. 22 Q. (BY MR. SCARBOROUGH) -- is the Uniform 23 Residential Loan Application. It says final. And as 24 part of that closing transaction, there is a 25 reference to a gift from Lee Farris in the amount of 126

1 $82,000; isn't there? 2 A. I see that now. 3 Q. Okay. 4 MR. OCHOA-CRONFEL: Your Honor, I'm 5 going to object again. We're getting to the merits 6 of the issue for which Mr. Scarborough was objecting 7 all afternoon -- been objecting all morning. 8 THE COURT: Why is this relevant, 9 Mr. Scarborough? 10 MR. SCARBOROUGH: Because it -- it 11 goes to the same argument I'd say for him; what's 12 good for the goose and is good for the gander. 13 THE COURT: Overruled. 14 MR. SCARBOROUGH: We'll offer those 15 two exhibits, 5 and 6 into evidence. 16 A. That was hidden from me. I never saw it. 17 MR. SCARBOROUGH: Objection; 18 nonresponsive. 19 THE COURT: Do we have 5 and 6? 20 THE REPORTER: No. 21 THE COURT: 5 and 6? 22 MR. POTTER: Yes, ma'am. 23 MR. SCARBOROUGH: We will -- we 24 will -- 25 THE COURT: I cannot introduce them 127

1 unless I have them. Call me crazy. 2 MR. SCARBOROUGH: I'm not about to 3 call this Court crazy. 4 (Discussion off the record.) 5 MR. SCARBOROUGH: Exhibits 5 and 6, 6 and I tender to the Court. 7 THE COURT: Any objections? 8 MR. OCHOA-CRONFEL: Yes. I'm going to 9 object to it as being irrelevant, goes to the merits 10 of the case, and doesn't have anything to do with 11 contacts or jurisdiction. 12 THE COURT: Overruled. 13 5 and 6 will be admitted. 14 (Defendant's Exhibits Nos. 5 and 6 15 admitted.) 16 MR. SCARBOROUGH: Pass the witness. 17 THE COURT: Anything else? 18 You've got two minutes left. 19 MR. OCHOA-CRONFEL: Yes, ma'am. May I 20 see those exhibits? 21 THE COURT: The last two? 22 MR. OCHOA-CRONFEL: Yes. 23 THE COURT: Yes. 24 25 128

2 BY MR. OCHOA-CRONFEL: 3 Q. Mr. Farris, looking at Exhibits No. 5 and 4 No. 6, do you remember that Ms. Landa in her 5 testimony said that you had all the information that 6 she did during the closing process? Do you remember 7 that -- 8 A. I remember that. 9 Q. -- as she was sitting up there? 10 Is that true? 11 A. That is not true. 12 MR. SCARBOROUGH: Objection, Your 13 Honor; goes to the merits. 14 MR. OCHOA-CRONFEL: Okay. 15 MR. SCARBOROUGH: Objection; it goes 16 to the merits. 17 THE COURT: Overruled. 18 Q. (BY MR. OCHOA-CRONFEL) Okay. Now, you see 19 those -- those two exhibits that have just been 20 introduced? 21 A. Yes. 22 Q. Had you ever seen those before the 23 litigation -- before those documents were produced in 24 litigation, had you ever seen any of those? 25 A. Never. 129

1 Q. Was the first time during the course of 2 this litigation that you ever saw that? 3 A. That's correct. 4 Q. You weren't included in any 5 correspondence -- 6 MR. SCARBOROUGH: Objection; leading. 7 Q. (BY MR. OCHOA-CRONFEL) -- related to -- 8 MR. SCARBOROUGH: Objection; leading, 9 suggesting the answer. 10 THE COURT: Sustained. 11 Q. (BY MR. OCHOA-CRONFEL) Were you included 12 in any correspondence related to any gift at any time 13 as a characterization of this -- 14 A. No. 15 Q. -- loan that you gave Ms. Landa? 16 A. No. 17 Q. Okay. All right. 18 Now, in Dallas, Mr. Scarborough -- 19 Mr. Scarborough is asking -- was asking you what the 20 focus of that meeting was, and he made reference to 21 your deposition. 22 You previously testified that that was 23 the first time you heard about the loan. 24 MR. SCARBOROUGH: Objection; leading. 25 Objection; leading. 130

1 THE COURT: You have minute left. 2 MR. OCHOA-CRONFEL: Okay. 3 THE COURT: Overruled. 4 MR. OCHOA-CRONFEL: All right. 5 Q. (BY MR. OCHOA-CRONFEL) What happened in 6 Dallas -- well, let me -- strike that. 7 Was that the first time that you heard 8 about Ms. Landa's need for money as a loan for a down 9 payment on the house? 10 A. Yes. 11 Q. Okay. 12 MR. OCHOA-CRONFEL: That's it. Pass 13 the witness. 14 THE COURT: Anything else, 15 Mr. Scarborough? 16 MR. SCARBOROUGH: No, Your Honor. 17 THE COURT: Okay. You may step down. 18 THE WITNESS: Okay. 19 (Discussion off the record.) 20 MR. OCHOA-CRONFEL: And, Your Honor, 21 we're done. 22 THE COURT: Okay. 23 MR. OCHOA-CRONFEL: We rest. 24 THE COURT: Okay. 25 MR. SCARBOROUGH: The defendant rests PLAINTIFF'S EXHIBIT NO. 1 .. ~. ... ;.,. . . .. . ~.,,.. ") ( '·-·· . . .. . ·.. .:} ·. :

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~------------- ---- 05116120121008$16,000.00 05118120121008 $16,000.0B (Back)

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