ACCEPTED 03-15-00497-CV 8018196 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/30/2015 3:54:45 PM JEFFREY D. KYLE CLERK NO. 03-15-00497-CV
FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS, 11/30/2015 3:54:45 PM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk
KAREN E. LANDA, Appellant
v.
CHARLES L. FARRIS, Appellee.
On Appeal from the 98th Judicial District Court, Travis County Honorable Judge Triana Presiding
REPLY BRIEF OF APPELLANT
HANCE SCARBOROUGH LLP Terry L. Scarborough State Bar No. 17716000 TScarborough@hslawmail.com V. Blayre Pena State Bar No. 24050372 BPena@hslawmail.com 400 W. 15th Street, Ste. 950 Austin, TX 78701 Telephone: (512) 479-8888 Facsimile: (512) 482-6891 ATTORNEYS FOR APPELLANT KAREN E. LANDA
ORAL ARGUMENT REQUESTED I. TABLE OF CONTENTS
I. TABLE OF CONTENTS ……………………………………………….…..ii
II. INDEX OF AUTHORITIES …………………………………………...iii, iv
III. INTRODUCTION ………………………………………………….……….1
IV. ARGUMENT AND AUTHORITIES……...………………………..………1
A. Landa preserved error as to the trial court’s ruling on whether Farris met his initial burden to bring her under the Texas long-arm statute.………………………………………………………………...1 B. Landa did not waive the trial court’s error as to finding that it had specific jurisdiction over her (Issue2) ….….........................................4 C. There was not sufficient evidence in the record to support the trial court’s ruling that it had specific jurisdiction over Landa……………7 i. Meeting in Dallas………………………………………………8 ii. Subsequent communications between the parties……………...9 iii. Striking Farris’ name from the deed………………………….10 iv. The May 2012 check…………………………………………10 v. Farris Being a Resident of Texas……………………………..11 D. Landa did not waive the trial court’s error as to finding that it had general jurisdiction over her (Issue 3)……………………………….12 E. There is not legally sufficient evidence to support a finding of general jurisdiction, and Farris completely ignored the controlling precedent in his response……………………………………………………….13
V. CONCLUSION…………………………………………………………….15
CERTIFICATE OF COMPLIANCE……………………………………………...17
CERTIFICATE OF SERVICE …………………………………………..….……18
ii
II. INDEX OF AUTHORITIES
Cases Bullock v. Am. Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied) ....................................................................................................................5
C & H Transportation Co. v. Jensen & Reynolds Construction Co., 719 F.2d 1267, 1270 (5th Cir. 1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930 (1984) ..........11
Daimler AG v. Bauman, 2014 132 S. Ct. 746, 751 (2014) ......................................13
Ennis v. Loiseau, 164 S.W.3d 698, 704-05 (Tex. App.—Austin 2005, no pet.) .......2
Flores v. Star Cab Coop. Ass’n, 2008 Tex. App. LEXIS 6582, *7 (Tex. App.— Amarillo 2008, pet. denied) (mem. op.) .................................................................5
Freudensprung v. Offshore Tech. Servs., 379 F.3d 327, 344 (5th Cir. 2004) ...........9
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). ..............................................................................................................................13
Haddad v. ISI Automation Int’l, Inc., 2010 Tex. App. LEXIS 3151 (Tex. App.— San Antonio 2010, no pet.) ...................................................................................12
Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986)................. 9, 11
Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 809-10 (Tex. App.—Fort Worth 1994, writ denied) .................................................................................................14
Kastner v. Gutter Mgmt., 2010 Tex. App. LEXIS 8868, *30 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (mem. op.) .............................................................5
KC Smash 01, LLC v. Gerdes, Hendrichson, Ltd., L.L.P., 384 S.W.3d 389, 394 (Tex. App.—Dallas 2012, no pet.) ............................................................. 8, 11,12
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 787 (Tex. 2005) ..8, 11
Moni Pulo, Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170 (Tex. App—Houston [14th Dist.] 2003, pet. denied) ..............................................................................15
Patterson v. Dietze, Inc., 764 F.2d 1145, 1147 (5th Cir. 1985) ..............................11 iii
Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300, 323, 324 (Tex. App.—Austin 2006, pet. denied) ...................................................5
iv
III. INTRODUCTION
The Trial Court’s order denying Landa’s special appearance should be
reversed for the reasons stated in Appellant’s brief, which Appellee failed to
adequately rebut for multiple reasons. First, Landa has not waived any errors. As
to Farris’ argument regarding having pleaded sufficient facts to bring Landa under
the Texas Long-Arm Statute, Landa stands on her original Brief, which sets forth
in detail why the trial court erred in finding Farris’ pleadings sufficient.1
As to the substantive arguments made by Farris in his Response Brief
regarding Issues 2 and 3, Farris pointed to no evidence supporting the trial court’s
ruling that it has either specific or general jurisdiction over Landa. Finally, as to
general jurisdiction, Farris completely ignored the controlling precedent which
clearly established that the trial court did not have general jurisdiction over Landa.
IV. ARGUMENT AND AUTHORITIES
A. Landa preserved error as to the trial court’s ruling on whether Farris met his initial burden to bring her under the Texas long-arm statute.
Farris contended that Landa waived any error as to the Trial Court’s ruling
on the sufficiency of the jurisdictional allegations in his pleading.2 “As a
prerequisite to presenting a complaint for appellate review, the record must show,
that 1) the complaint was made to the trial court by a timely request, objection, or
1 Appellant’s Brief pp. 8-10. 2 Appellee’s Response Brief p. 19. 1 motion that A) stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court aware of the
complaint . . . and 2) the trial court ruled on the request, objection, or motion,
either expressly or implicitly. . . .” Tex. R. App. P. 33.1(a). The record in this case
shows that Landa met all of these prerequisites.
First, the proper method to challenge jurisdictional pleadings is with a
special appearance. Ennis v. Loiseau, 164 S.W.3d 698, 704-05 (Tex. App.—Austin
2005, no pet.) (“If a defendant wishes to challenge jurisdictional pleadings on the
ground that such party or property is not amenable to process issued by the courts
of this State, then his proper tool is a special appearance.”). Farris conceded this
point in his response.3
In this case, Landa filed a Special Appearance challenging the jurisdictional
allegations made by Farris, thus making the complaint to the trial court, wherein
she stated that she was “not amenable to process issued by the courts of Texas” and
then listed multiple reasons why the trial court did not have personal jurisdiction
over her, all of which were challenges to Farris’ jurisdictional allegations.4
Landa also raised this issue in the hearing on this matter. Early in the
hearing, counsel for Landa had this exchange with the Trial Court:
3 Appellee’s Response Brief pp. 20-21. 4 CR pp. 9-12. 2
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 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.5
The parties then proceeded with opening statements, after which Mr. Ochoa-
Cronfel specifically asked for a ruling on the issue:
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 hear 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.6
5 RR pp. 8-9. 6 RR pp. 31-32. 3
Thus, Landa not only raised this issue in her Special Appearance, but also
during the hearing. Counsel for Farris clearly recognized that this issue had been
presented to the Trial Court, because he asked if it had been ruled on. To now
argue to the contrary is disingenuous.
Additionally, even if the record did not reflect an express ruling by the Trial
Court, error was also preserved by the implicit ruling of the Trial Court. Tex. R.
App. P. 33.1(a)(2)(A). In this instance, in denying Landa’s Special Appearance the
Trial Court implicitly ruled that Farris met his burden because if the Trial Court
had not believed it was sufficiently pleaded, the fact that Landa is a not a Texas
resident would have defeated personal jurisdiction.
For these reasons, Landa did not waive error as to the sufficiency of Farris’
pleadings. Because Farris failed to meet his initial burden, as set forth in Landa’s
Initial Brief, her special appearance should have been granted. The Trial Court
committed reversible error in failing to do so.
B. Landa did not waive the trial court’s error as to finding that it had specific jurisdiction over her (Issue 2).
As a red herring to shift the focus away from the merits, Farris argued that
Landa waived this point of error because it was not adequately briefed as required
by Tex. R. App. P. 38.1(h). Rule 38.1(h) states that “The brief must contain a
succinct, clear, and accurate statement of the arguments made in the body of the
brief. This summary must not merely repeat the issues or points presented for
review.” In construing this Rule, the Austin Court of Appeals opined that:
The standard for whether an issue has been adequately briefed should not be rigid or draconian. Under certain circumstances, a single case may prove to be appropriate citations to authorities and to the record. Whether an issue has been adequately briefed depends on the complexity of the issue and the extent courts have addressed the issue.
Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300,
324 (Tex. App.—Austin 2006, pet. denied) (quotations and citations omitted).
Further, this Rule must be applied in conjunction with Tex. R. App. P. 38.9, which
requires the Court to construe all briefs liberally. See, e.g., Flores v. Star Cab
Coop. Ass’n, 2008 Tex. App. LEXIS 6582, *7 (Tex. App.—Amarillo 2008, pet.
denied) (mem. op.).
In looking at cases where Rule 38.1(h) has been invoked, the common
thread is often that the brief in question contained little to no citations to authority,
no citations to the record, and little to no substantive analysis of the issues. See,
e.g., Bullock v. Am. Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012,
pet. denied) (Appellant failed to cite legal authority or provide substantive analysis
of the legal issue presented); Kastner v. Gutter Mgmt., 2010 Tex. App. LEXIS
8868, *30 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (mem. op.)
(Appellant did not provide legal authority, citations to the record, or analysis in
support of his argument); Save Our Springs Alliance, 198 S.W.3d at 323 (“SOS'
brief contains a single paragraph concerning the separation of powers argument,
fails to cite any standards, fails to apply the separation of powers doctrine to the
facts of this case, includes no citation to the record, and cites only one
case, Corzelius, relevant to the separation of powers doctrine.”).
Landa’s Brief is more than adequate in briefing this point. First, the
standard of review was set forth clearly and succinctly with citations to the
appropriate authority.7 Next, Landa’s Brief devoted six pages to briefing and
analyzing why it was error for the trial court to have found that it had specific
jurisdiction over Landa and included citations to ten different cases as authority.8
Landa’s Brief also contained ample citations to the record in support of her
argument, contrary to Farris’ argument that Landa 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” and that she only provided “three (3) citations to the reporter’s
record which ostensibly support her desired interpretation of the evidence, as
opposed to addressing how the evidence fail[ed] to support the trial court’s implied
findings.”9 Specifically, Landa’s Statement of the Facts, which served as the
factual authority for Landa’s Brief, was extensively cited, and contained thirty-nine
7 Appellant’s Brief pp. 7-8. 8 Id., at pp. 10-15. 9 Appellee’s Response Brief p. 24. 6
citations to either the Reporter’s Record or the Clerk’s record.10 Relying on those
citations to the records, Landa’s Brief analyzed and explained how the evidence
presented was not legally sufficient to support the trial court’s finding of specific
jurisdiction. Accordingly, Landa adequately briefed her argument that the trial
court committed reversible error in holding that it had specific jurisdiction over
Landa, and this issue is ripe for appellate review.
C. There was not sufficient evidence in the record to support the trial court’s ruling that it had specific jurisdiction over Landa.
In arguing that the evidence supported the court’s finding that it had specific
jurisdiction, Farris pointed to numerous “facts” that he believed supported the trial
court’s decision.11 Without addressing each citation or point of evidence
individually, they can generally be sorted into the following categories: (1) the
parties’ meeting in Dallas; (2) subsequent communications between the parties
concerning the transaction; (3) the striking of Farris’ name from the deed; (4)
Landa giving Farris a check in May, 2012; and (5) that Farris lived in Texas during
all times relevant to this matter. However, none of these facts establish that Landa
purposefully availed herself of conducting business in Texas.
10 Appellant’s Brief pp. 1-6. 11 Appellee’s Response Brief pp. 28-34. 7
i. Meeting in Dallas
First, at to the meeting in Dallas, it was Landa’s testimony that Farris
originally wanted to meet in Iowa, but upon learning that he would have to stay in
a hotel, Farris suggested that they meet in Dallas instead.12 At no point during his
testimony did Farris contradict that it was his idea to meet in Dallas. Thus, the
meeting in Dallas was a result of Farris’ actions, and was not an instance of Landa
trying to “seek some benefit, advantage, or profit” by availing herself of Texas.
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 787 (Tex. 2005).
Additionally, it was Farris’ testimony that 1) the purpose of the meeting was
for the parties to spend time together, 2) there was no agenda, and 3) the focus was
just to get together and enjoy each other’s company and have a good time.13 Even
had the purpose of the meeting been exclusively to discuss the money, it would not
have been an attempt by Landa to avail herself of the jurisdiction, as the benefit
being sought concerned purchasing a house in Iowa. See KC Smash 01, LLC v.
Gerdes, Hendrichson, Ltd., L.L.P., 384 S.W.3d 389, 394 (Tex. App.—Dallas 2012,
no pet.) (“Appellant’s ‘availing’ was for the purpose of building its restaurants in
Kansas, not for reaping a profit or obtaining a benefit or advantage in Texas.”).
12 RR pp. 49-50. 13 RR pp. 115-17. 8
Finally, as set forth in Landa’s Brief, as a matter of law, no contract was
formed while the parties were in Dallas.14 Thus, nothing in the evidence regarding
the meeting in Dallas could support a finding of purposeful availment by Landa.
ii. Subsequent communications between the parties
Farris also argued that the parties’ subsequent communications about the
money and transaction after the house had been purchased supported the trial
court’s decision.15 For example, Farris asked Landa to send him a copy of the
closing documents.16 Farris is attempting to use this as an example of Landa
purposefully availing herself of the forum.17 He also cited to other instances of the
money coming up in conversation between the parties,18 although the record is
silent as to who initiated most of the communications. Regardless of who initiated
the conversations, numerous courts have held that engaging in communications
related to the execution and performance of a contract, and the existence of a
contract between a nonresident and resident of a forum, is insufficient to establish
the minimum contacts necessary to support the exercise of specific jurisdiction.
See Freudensprung v. Offshore Tech. Servs., 379 F.3d 327, 344 (5th Cir. 2004);
See also, e.g., Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986)
(finding no specific jurisdiction over nonresident defendant where nonresident
14 Appellant’s Brief pp. 14-15. 15 Appellee’s Response Brief pp. 28-29. 16 See, e.g., RR pp. 68 and 103-04. 17 Appellee’s Response p. 28, n. 7. 18 Id. 9
defendant entered into a contract with a Texas resident, sent an agreement and
checks to Texas, and engaged in extensive telephonic and written communications
with plaintiff in Texas). Accordingly, that there were communications between the
parties after the transaction does not constitute evidence of purposeful availment.
iii. Striking Farris’ name from the deed
Farris further argued that the act of striking his name from the deed
somehow constituted an actionable tort in Texas, so as to convey specific
jurisdiction. First, there is no evidence that Landa had anything to do with the
striking of his name, and Farris even admitted that he had no knowledge of who
struck his name.19 Second, there is no evidence of who struck the name or where
they struck it. The implication, however, is that Farris’ name was struck in Iowa,
since the act occurred prior to him receiving the documents in Texas.20 As such,
there is no evidence that the action/tort occurred in Texas, and thus it cannot serve
as a basis for specific jurisdiction over Landa.
iv. The May 2012 check
The fact that Landa paid Farris $15,000 has no bearing as to whether she
purposefully availed herself of doing business in Texas. First, the $15,000 check
was not a repayment to Farris.21 Second, as testified to by both Farris and Landa,
19 RR p. 120. 20 RR pp. 54-56; 21 RR p. 57. 10
the purpose of the trip during which the check was given to Farris was for a
completely unrelated purpose, that was, to attend a birthday party.22 Third, even if
Landa had flown to Texas expressly to pay Farris the check, and even if she
considered it a repayment, that action would not constitute purposeful availment.
See Holt Oil & Gas, 801 F.2d at 778 (“Given that the material performance
occurred in Oklahoma, the fact that Harvey mailed payments to Texas does not
weigh heavily in our determination.”); Patterson v. Dietze, Inc., 764 F.2d 1145,
1147 (5th Cir. 1985) (all material performance occurred in Mexico despite the
wiring of payments to Texas); C & H Transportation Co. v. Jensen & Reynolds
Construction Co., 719 F.2d 1267, 1270 (5th Cir. 1983), cert. denied, 466 U.S. 945,
104 S. Ct. 1930 (1984) (fact that payment mailed to Texas is hardly significant in
terms of purposeful availment).
v. Farris being a resident of Texas
Farris also repeatedly argued that evidence of his “performance” in Texas
and that Landa knew he resided in Texas supported the trial court’s ruling.
However, Farris’ performance of his obligations is a unilateral action by him, not
Landa, and thus cannot be considered a contact by Landa with Texas. See
Michiana, 168 S.W.3d at 787; KC Smash, 384 S.W.3d at 389; Haddad v. ISI
Automation Int’l, Inc., 2010 Tex. App. LEXIS 3151 (Tex. App.—San Antonio
22 RR pp. 57-58 and 108. 11
2010, no pet.) (mem. op.) (Designer’s performance of work in Texas for Mexican
client was designer’s contact, not client’s). Similarly, Landa’s knowledge that
Farris resided in Texas does not serve to make her amenable to jurisdiction in
Texas. See KC Smash, 384 S.W.3d at 389.
What is important to take from all of this is that Farris’ primary argument for
specific jurisdiction rested on the mere fortuity that he happened to be a resident of
Texas, not on any example of Landa purposefully availing herself of the forum.
That is because there is no evidence in the record of Landa purposefully availing
herself, and thus there is no legally sufficient basis for the trial court’s finding of
specific jurisdiction.
D. Landa did not waive the trial court’s error as to finding that it had general jurisdiction over her (Issue 3).
As with her second point of error, Farris’ once again argued that Landa
waived this point of error because it was inadequately briefed. However, a review
of Landa’s Brief establishes that this point of error was more than adequately
briefed.
First, the standard of review is set forth with proper citation.23 In briefing
this point, Landa devoted three pages of her Brief and cited to eight different
authorities supporting and analyzing her argument.24 Again, in arguing that this
23 Appellant’s Brief pp. 7-8. 24 Appellant’s Brief pp. 16-18. 12
issue is inadequately briefed, Farris’ missed the point that the argument relied on
those citations contained in the Statement of Facts, as well as those in the
argument, in showing that there was legally insufficient evidence to support a
finding of general jurisdiction when applying the correct precedential law. As
such, Landa did not waive her claim that the trial court erred in finding general
jurisdiction, and it is ripe for appellate review.
E. There is not legally sufficient evidence to support a finding of general jurisdiction, and Farris completely ignored the controlling precedent in his response.
In arguing that the evidence supported the trial court’s finding of general
jurisdiction, Farris completely ignored the controlling law on the subject, instead
citing to older case law that has since been superseded by more recent rulings.
Specifically, as pointed out at both the hearing on this matter25 and in Landa’s
Brief,26 two recent cases from the Supreme Court of the United States have made it
clear that a finding of general jurisdiction is appropriate only in those instances
where a defendant’s affiliations are so constant and pervasive as to render it
essentially at home in the forum state. Daimler AG v. Bauman, 2014 132 S. Ct.
746, 751 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846, 2851 (2011). Farris also ignored numerous other recent cases cited to by
Landa out of the Fifth Circuit, Southern District of Texas, and Corpus Christi
25 RR pp. 14 and 131-32. 26 Appellant’s Brief pp. 16-17. 13
Court of Appeals following this precedent.27 Farris instead cited to older rulings
that were issued before Daimler and Goodyear in support of his argument.
Even had he addressed the controlling cases, none of the evidence to which
he cited supports a finding of general jurisdiction. First, he pointed to the fact that
Landa lived and worked in Austin for many years and that she came back for brief
period from August 2013 to April 2014.28 That is not disputed. However, an eight
month period hardly constitutes systematic and continuous contact with Austin,
when taken in context with the fact that she lived in Iowa at the time Farris sent
Landa the money and filed the lawsuit, currently lives in Iowa, and has lived there
for the vast majority of the past five years.29
Farris also pointed to the fact that Landa has a license with the Texas
Department of Insurance.30 Landa does maintain a nonresident insurance license in
Texas, but has not engaged in selling insurance in Texas since spring of 2014.31
Further, maintaining a non-resident license does not establish general jurisdiction
over a defendant. See Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 809-10
(Tex. App.—Fort Worth 1994, writ denied) (no general jurisdiction although
defendants maintained Texas insurance license because only 0.2% of defendants’
business was performed in Texas).
27 Appellant’s Brief p. 17. 28 Appellee’s Response Brief pp. 36-37. 29 RR pp. 37-39, 42 and 60 30 Appellee’s Response Brief p. 37. 31 RR p. 35 and 44-46. 14
Farris also argued that Landa being a beneficiary of a martial trust located in
Texas supported a finding of general jurisdiction.32 However, the evidence showed
that the trust was created as a result of Landa’s deceased husband’s will, not by
her, and there was no evidence that Landa chose to have the trust located in
Texas.33 This does not constitute a systematic and continuous contact with the
forum. See Moni Pulo, Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170 (Tex.
App—Houston [14th Dist.] 2003, pet. denied).
Ultimately, Farris pointed to no evidence which would be legally sufficient
to support a general jurisdiction finding by the trial court, particularly in light of
the Daimler and Goodyear cases, and the reason is because the record is absent of
such evidence. Instead, he pointed to the fact that Landa used to live in Austin,
and that since leaving over five years ago, she has only had a couple of intermittent
contacts with the forum. These isolated contacts do not render Landa at home in
the forum, and as such the trial court erred in finding general jurisdiction.
v. CONCLUSION
As established herein, Farris did not waive any of her points of error.
Further, Farris cited to no evidence or authority which controverted the fact that
the trial court erred in finding that Farris pleaded sufficient facts to bring Landa
under the Texas long-arm statue. Similarly, Farris’ Response failed to point to
32 Appellee’s Response Brief p. 37. 33 RR p. 84. 15
evidence, which could support a finding that Landa purposefully availed herself of
doing business in the forum. Further, he failed to point to any evidence showing
that Landa’s intermittent contacts with the forum rise to such a systematic and
continuous level as to render her at home in the forum.
Accordingly, the trial court should have found that it does not have personal
jurisdiction over Landa, and granted her Special Appearance. The failure to do so
constitutes reversible error. Accordingly, Landa requests that the court reverse the
Trial Court’s order denying Landa’s Special Appearance, and dismiss this case in
its entirety. Landa requests such other and further relief to which she may be
entitled.
Respectfully submitted,
HANCE SCARBOROUGH, LLP 400 W. 15th Street, Ste. 950 Austin, Texas 78701 Telephone: (512) 479-8888 Facsimile: (512) 482-6891
By: /s/ Terry L. Scarborough Terry L. Scarborough State Bar No. 17716000 tscarborough@hslawmail.com V. Blayre Pena State Bar No. 24050372 bpena@hslawmail.com
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
brief contains 3745 words. This is a computer generated document created in
Microsoft Word, using 14 point typeface for all text, except for footnotes, which
are in 12-point typeface. In making this certificate of compliance, I am relying on
the word count provided by the software used to prepare the document.
/s/ Terry L. Scarborough Terry L. Scarborough
CERTIFICATE OF SERVICE I hereby certify that a copy of Appellants’ Reply Brief was served on
the following counsel of record on November 30, 2015, via certified mail,
return receipt requested, and/or the electronic filing system:
Counsel for Charles L. Farris The Cronfel Firm Guillermo Ochoa-Cronfel 2700 Bee Cave Rd. Austin, Texas 78746 (512) 347-9600 Phone (512) 347-9911 Fax
/s/ Terry L. Scarborough Terry L. Scarborough