Michele McKenzie Alford-Shaw, as Independent of the Estate of Robin Dale Shaw v. Judy Nicholson, Individually and as Personal Representative of the Estate of Misty Nicholson, and as Guardian and Next Friend of LBN, a Minor Dominic Riola and Karla Riola

• Court: Court of Appeals of Texas
• Decided: July 1, 2021
• Docket: 02-20-00387-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-20-00387-CV ___________________________

MICHELE MCKENZIE ALFORD-SHAW, AS INDEPENDENT EXECUTRIX OF THE ESTATE OF ROBIN DALE SHAW, DECEASED, Appellant

V.

JUDY NICHOLSON, INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MISTY NICHOLSON, DECEASED, AND AS GUARDIAN AND NEXT FRIEND OF LBN, A MINOR; DOMINIC RIOLA; AND KARLA RIOLA, Appellees

On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-306509-19

Before Kerr, Womack, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

After her husband was killed in Texas while piloting a plane, appellant Michele

McKenzie Alford-Shaw, who does not live in Texas, acted as the independent

executor for his estate in a Texas probate court. Later, the families of two passengers

who were also killed in the crash named Shaw, in her capacity as independent

executor, as a defendant in their negligence suit arising from the plane crash. Shaw

filed a special appearance and argued that because the estate administration had been

informally closed, she was no longer the independent executor when the negligence

suit was filed; thus, there were no minimum contacts supporting personal jurisdiction.

The trial court denied the special appearance. We conclude that the independent

administration was not informally closed because the facts and circumstances in the

probate court did not show that the estate’s assets had been distributed and, thus, that

further administration was not needed. And because the independent administration

was not closed, Shaw’s actions in the Texas probate court provided the requisite

minimum contacts for specific jurisdiction, and due process would not be offended by

a Texas trial court exercising personal jurisdiction over Shaw as a nonresident. Thus,

we affirm the trial court’s denial order.

I. BACKGROUND

On April 28, 2017, Robin Shaw, Misty Nicholson, and Scott Riola died in an

air-ambulance plane crash in Potter County, Texas. Robin was the pilot; Scott and

Misty were “medical personnel.” Robin’s will named his wife, Shaw, as his estate’s

2 independent executor and sole beneficiary. See Tex. Est. Code Ann. § 401.001(a). On

October 25, 2017, Shaw filed an application in the County Court of Callahan County,

Texas (the probate court), to admit Robin’s will to probate and sought letters

testamentary. See id. §§ 256.051, 301.051(1), 402.001. Even though she lived in Ohio,

Shaw filed the application in Callahan County because Robin had been “domiciled

and had a fixed place of residence” in Callahan County. See id. § 33.001(a)(1). The

probate court clerk posted a citation to all interested persons about the application

and stated that the application could be acted on no earlier than November 6, 2017.

See id. §§ 51.053, 303.001. On November 21, 2017, the probate court admitted

Robin’s will to probate, issued letters testamentary, and appointed Shaw as the

independent executor. See id. §§ 256.201, 306.001, 306.003, 402.001. Because Shaw

was an Ohio resident, she appointed a resident agent for service of process and filed

the appointment in the probate court. See id. § 304.003(3)(B).

On January 22, 2018, appellee Judy Nicholson (appearing individually, as the

personal representative of Misty’s estate, and as the guardian of Misty’s minor child)

filed a negligence suit against the owner of the plane—Rico Aviation, LLC—in Potter

County. She alleged that Rico Aviation negligently inspected and operated the plane

and that it was liable “under respondeat superior as the company had operational control

of the flight and is responsible for the actions of its agent, the pilot.” Robin, Misty,

and Scott had been employed by Rico Aviation; however, Rico Aviation did not

maintain workers’-compensation insurance.

3 On February 12, 2018, Shaw filed an affidavit in lieu of an inventory,

appraisement, and list of claims (the inventory affidavit). See id. § 309.056. In the

filing, she cited Section 309.056 of the Estates Code and stated in one sentence that

there were “no unpaid debts of the estate and . . . that there [were] no beneficiaries

under the Last Will and Testament of Robin . . . other than Affiant.” Shaw did not

file a closing report or a notice of estate closing, but she was not required to do so.

See id. §§ 405.005, 405.006, 405.012.

It is not clear what happened to Nicholson’s Potter County suit (Shaw states

that it was dismissed). In any event, Nicholson and Scott’s parents—appellees

Dominic and Karla Riola—filed suit in Tarrant County against Rico Aviation on

March 1, 2019, alleging that the plane’s maintenance had occurred in Tarrant County.

See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1). Rico Aviation answered and

filed a third-party petition, naming Greenpoint Aerospace and Fieldtech Avionics and

Instruments, Inc. as third-party defendants and alleging that Greenpoint and Fieldtech

had negligently performed the plane’s maintenance. See Tex. R. Civ. P. 38(a). On

April 12, 2019, Nicholson and the Riolas amended their petition to add negligence

claims against Greenpoint and Fieldtech for their alleged negligent actions

surrounding the plane’s maintenance.1

1 Greenpoint and Fieldtech were later granted leave to designate the manufacturer of the plane’s autopilot system—Honeywell Aerospace—as a responsible third party. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004.

4 In June 2019, Shaw moved from Ohio to Kentucky.

On September 3, 2020, after discovery concluded and one month before the

scheduled trial on Nicholson and the Riolas’ negligence suit, Nicholson sought leave

to amend the petition to add claims against Shaw as the independent executor of

Robin’s estate.2 See Tex. Est. Code Ann. § 403.059. Nicholson alleged that discovery

had revealed that “a proximate cause of the crash was the negligence of pilot [Robin]

Shaw” and that she had discovered Rico Aviation’s insurance carrier would not cover

claims against Rico Aviation asserted by its employees. On September 16, 2020,

Nicholson filed a notice of claim in the probate court based on the negligence suit,

and the probate clerk notified Shaw and Shaw’s resident agent.3 See id. §§ 355.002,

355.065, 403.055. On September 17, 2020, the Tarrant County trial court granted

leave to amend the petition; Nicholson and the Riolas filed the amended petition that

same day. In the amended petition, Nicholson and the Riolas alleged that all parties

were Texas residents or doing business in Texas. Specifically as to Shaw, Nicholson

and the Riolas alleged that Shaw was Robin’s estate’s independent executor and that

she had appointed a Texas resident agent for service of process.

Shaw filed a verified special appearance, attaching her September 9, 2020

declaration and her October 17, 2020 “jurisdictional declaration.” See Tex. R. Civ.

2 Although the motion to amend was entitled “Plaintiffs’ Motion for Leave to File Second Amended Petition,” the Riolas were not mentioned as movants. 3 The Riolas did not join in the notice of claim.

5 P. 120a.1. Shaw averred that because all the debts and claims of Robin’s estate had

been paid and all estate property distributed, the estate had been closed “as a matter

of law”—ending her authority as the independent executor and estate

representative—in February 2018, which was before Nicholson and the Riolas had

named Shaw as a defendant. She asserted, therefore, that because she was a Kentucky

resident, a Texas court could not exercise personal jurisdiction over her. Nicholson

responded4 and asserted that because Shaw had taken no demonstrable action

triggering a closing of the independent administration and had provided no

competent evidence that she had informally closed it, she did not conclusively prove

that the estate had been closed; thus, she could be brought into a Texas court based

on her actions in Texas as the independent executor of Robin’s estate. Nicholson also

contended that Shaw’s affidavit was statutorily deficient and could not serve to

informally close the independent administration. The trial court denied Shaw’s special

appearance, and she filed this accelerated, interlocutory appeal. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a)(7).

II. LEGAL STANDARDS GOVERNING PERSONAL-JURISDICTION REVIEW

A. APPELLATE LENS

The standards of review and the burdens of proof applicable to our review of a

trial court’s ruling on a special appearance are well-established. Whether a trial court

4 The Riolas did not respond to the special appearance.

6 has personal jurisdiction is a question of law. BMC Software Belg., N.V. v. Marchand,

83 S.W.3d 789, 794 (Tex. 2002). A plaintiff has the initial burden to plead sufficient

allegations to bring a nonresident defendant within the provisions of the Texas long-

arm statute. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); Retamco

Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009); see also Tex. Civ.

Prac. & Rem. Code Ann. § 17.042. This minimal burden is met by an allegation that

the nonresident defendant is doing business in Texas. Dole v. LSREF2 APEX 2,

LLC, 425 S.W.3d 617, 624 (Tex. App.—Dallas 2014, no pet.) (citing Assurances

Générales Banque Nationale v. Dhalla, 282 S.W.3d 688, 695 (Tex. App.—Dallas 2009, no

pet.)). Once a plaintiff sufficiently pleads such jurisdictional allegations, the burden

shifts to the defendant to negate the bases of personal jurisdiction asserted by the

plaintiff. Kelly, 301 S.W.3d at 658; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,

574 (Tex. 2007).

In determining whether the nonresident defendant sufficiently negated the

pleaded bases for personal jurisdiction, the trial court frequently must resolve

questions of fact. BMC Software, 83 S.W.3d at 794. When, as here, the trial court does

not issue findings of fact,5 we should presume that the trial court resolved all factual

disputes in favor of its jurisdictional ruling. See Old Republic Nat’l Title Ins. Co. v. Bell,

Shaw timely filed a request for findings and conclusions and a notice that they 5

were past due. See Tex. R. Civ. P. 296–97. The trial court did not file findings and conclusions, and none were required. See Tex. R. App. P. 28.1(c).

7 549 S.W.3d 550, 558 (Tex. 2018); Moki Mac, 221 S.W.3d at 574; Am. Type Culture

Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002); BMC Software, 83 S.W.3d at

795. The operative facts in this case are undisputed; thus, we rely on a de novo

review of the trial court’s application of law to its ultimate jurisdictional ruling. See

Am. Type, 83 S.W.3d at 806; Crystalix Grp. Int’l, Inc. v. Vitro Laser Grp. USA, Inc.,

127 S.W.3d 425, 427 (Tex. App.—Dallas 2004, pet. denied); see also LaLonde v. Gosnell,

593 S.W.3d 212, 220 (Tex. 2019) (“Deference must be afforded to the trial court’s

disposition of disputed facts, but when there are none, as here, our review is entirely

de novo.”).

B. LONG-ARM STATUTE AND DUE PROCESS

A special appearance challenges the trial court’s personal jurisdiction over a

defendant. Texas courts may not exercise personal jurisdiction over a nonresident

defendant unless federal due-process requirements and the Texas long-arm statute are

satisfied. Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045; Helicopteros Nacionales de

Colom., S.A. v. Hall, 466 U.S. 408, 412–13 & n.7 (1984). The Texas long-arm statute

and the requirements of due process are coextensive; thus, the long-arm statute is

satisfied if the exercise of personal jurisdiction comports with federal due process. See

Guardian Royal Exch. Assurance, Ltd. v. Eng. China Clays, P.L.C., 815 S.W.2d 223, 226

(Tex. 1991). Federal due process is satisfied if (1) the nonresident defendant has

“minimum contacts” with Texas and (2) the exercise of personal jurisdiction over the

nonresident defendant does not offend “traditional notions of fair play and substantial

8 justice.” Int’l Shoe Co. v. Wash., Office of Unemp. Comp. & Placement, 326 U.S. 310, 316

(1945).

1. Minimum Contacts

A defendant’s contacts may give rise to two types of personal jurisdiction:

specific or general jurisdiction. Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt.

VI, L.P., 493 S.W.3d 65, 71 (Tex. 2016); Moki Mac, 221 S.W.3d at 575–76.

When specific jurisdiction is asserted, we focus on the relationship between the

defendant, the forum, and the litigation. Moki Mac, 221 S.W.3d at 575–76. Minimum

contacts, giving rise to specific jurisdiction over a defendant, are present when a

nonresident defendant “purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and protections of its

laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958); see Old Republic, 549 S.W.3d at 559.

In determining purposeful availment, we consider (1) the defendant’s own actions but

not the unilateral activity of another party, (2) whether the defendant’s actions were

purposeful rather than “random, isolated, or fortuitous,” and (3) whether the

defendant sought “some benefit, advantage, or profit by ‘availing’ itself” of the

privilege of doing business in Texas. Michiana Easy Livin’ Country, Inc. v. Holten,

168 S.W.3d 777, 785 (Tex. 2005); see also Old Republic, 549 S.W.3d at 565–66 & n.5.

The nonresident defendant’s contacts are considered as a whole and not in isolation,

focusing on the quality and not the quantity of the contacts. Retamco Operating,

278 S.W.3d at 339; Guardian Royal, 815 S.W.2d at 230 n.11.

9 On the other hand, general jurisdiction is a more demanding test to meet than

specific jurisdiction. Old Republic, 549 S.W.3d at 565. General jurisdiction is not

dispute-dependent but requires continuous and systematic business contacts.

Helicopteros, 466 U.S. at 414–16; Old Republic, 549 S.W.3d at 565. But even continuous

and systematic contacts will be insufficient to confer general jurisdiction if they do not

render the nonresident defendant “essentially at home” in the chosen forum. Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

2. Fair Play and Substantial Justice

If minimum contacts are present, the nonresident defendant then bears the

burden to present a compelling case that the exercise of personal jurisdiction would

nevertheless offend traditional notions of fair play and substantial justice. Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985); Furtek & Assocs., L.L.C. v. Maxus

Healthcare Partners, LLC, No. 02-15-00309-CV, 2016 WL 1600850, at *3 (Tex. App.—

Fort Worth Apr. 21, 2016, no pet.) (mem. op.). In deciding if the nonresident

defendant met his burden, we are to consider (1) the burden on the nonresident

defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the

plaintiff’s interest in obtaining convenient and effective relief, (4) the interstate judicial

system’s interest in obtaining the most efficient resolution of controversies, and

(5) the shared interest of the states in furthering fundamental substantive social

policies. Guardian Royal, 815 S.W.2d at 231. “Only in rare cases . . . will the exercise

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

defendant has purposefully established minimum contacts with the forum state.” Id.

III. APPLICATION OF STANDARDS TO PERSONAL-JURISDICTION FACTS

A. NICHOLSON AND THE RIOLAS’ BURDEN TO PLEAD SUFFICIENT JURISDICTIONAL ALLEGATIONS

In her first sub-issue,6 Shaw argues that Nicholson and the Riolas failed to

plead sufficient facts establishing personal jurisdiction over Shaw as a nonresident.

To meet their minimal pleading burden, Nicholson and the Riolas had to show the

actions upon which jurisdiction is based but did not have to make a prima facie

showing of the existence or merits of a cause of action. See Baldwin v. Household Int’l,

Inc., 36 S.W.3d 273, 277 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Arterbury v.

Am. Bank & Trust Co., 553 S.W.2d 943, 947 (Tex. App.—Texarkana 1977, no writ).

Nicholson and the Riolas alleged that all defendants, including Shaw, were residents

of Texas or were doing business in Texas. To support their “doing business”

assertion as to Shaw, they alleged that she was acting as the independent executor of

Robin’s estate in a Texas probate court and had designated a resident agent for service

of process. Nicholson and the Riolas raised a negligence claim against Robin’s estate

based on Robin’s alleged failure “to properly navigate and operate the subject aircraft

6 Shaw raises one appellate issue: “Whether the Trial Court erred by denying [Shaw’s] Special Appearance.” This issue, in turn, incorporates four “sub-issues,” in which she raises the grounds allegedly supporting her assertion of error.

11 [in Texas] in a safe and competent manner,” which proximately caused the crash and

Misty’s death.7 And they continued to allege that Rico Aviation was liable for Robin’s

actions under a respondeat superior theory.

In their briefing and at oral argument, Nicholson and the Riolas specifically

limit their personal-jurisdiction theory to Shaw’s actions as Robin’s estate’s

independent executor. We note that Nicholson and the Riolas alleged that Robin

committed a tort in Texas, which arguably could have brought Shaw in her capacity as

Robin’s estate’s independent executor within the reach of the Texas long-arm statute.

See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2); see also id. § 71.021(b) (providing

personal-injury action survives against deceased defendant and defendant’s legal

representatives); Ferreira v. Butler, 575 S.W.3d 331, 334 (Tex. 2019) (recognizing

executor stands in decedent’s shoes); Price v. Est. of Anderson, 522 S.W.2d 690, 691

(Tex. 1975) (“A suit seeking to establish the decedent’s liability . . . should ordinarily

be instituted against the personal representative or, under appropriate circumstances,

against the heirs or beneficiaries.”); Bruno’s Inc. v. Arty Imports, Inc., 119 S.W.3d 893,

898–99 (Tex. App.—Dallas 2003, no pet.) (concluding plaintiff sufficiently pleaded

jurisdictional facts under a respondeat superior theory). However, Nicholson and the

Riolas have expressly disclaimed those allegations as supportive of their personal-

jurisdiction assertion, and we decline to make the argument in their stead, especially as

They did not allege that Robin’s negligence was a proximate cause of Scott’s 7

death.

12 to a matter on which they carried the burden. See, e.g., Craaybeek v. Craaybeek, No. 02-

20-00080-CV, 2021 WL 1803652, at *5 (Tex. App.—Fort Worth May 6, 2021, pet.

filed) (mem. op.); Cantu v. Cantu, 556 S.W.3d 420, 434–35 (Tex. App.—Houston [14th

Dist.] 2018, no pet.).

In any event, the Texas long-arm statute extends personal jurisdiction to those

“doing business” in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042. Nicholson

and the Riolas’ allegation that Shaw did so by acting as the independent executor in

the probate court was sufficient to meet their minimal, initial pleading burden. See

Dole, 425 S.W.3d at 624; In re Est. of Davis, 216 S.W.3d 537, 545–46 (Tex. App.—

Texarkana 2007, pet. denied). We overrule Shaw’s first sub-issue.

B. SHAW’S BURDEN TO NEGATE ALLEGED JURISDICTIONAL BASIS

1. The Estate’s Independent Administration Was Not Informally Closed

Shaw asserts in her second sub-issue that because she conclusively established

that the independent administration was informally closed at the time Nicholson and

the Riolas named her as a defendant in her capacity as independent executor,8 she

negated this pleaded jurisdictional basis. Shaw relies on the inventory affidavit she

had filed in the probate court and argues that the information she included served to

Nicholson and the Riolas did not file suit against Shaw individually as Robin’s 8

sole beneficiary. Cf. Moore v. Barlow, 352 S.W.2d 804, 806 (Tex. App.—San Antonio 1961, writ ref’d n.r.e.) (holding executor could be named and held individually liable for deceased husband’s tort because estate had no debts, estate had been fully administered, and executor was sole devisee).

13 close the independent administration “by operation of law.” She also relies on her

special-appearance declarations in which she declared that all estate debts had been

paid no later than February 8, 2018; all estate assets had been transferred, sold, or

donated no later than February 8, 2018; and that she had not acted as the independent

executor since February 8, 2018.9 In her September 2020 special-appearance

declaration, Shaw included a chart showing the estate’s property and assets and each’s

“Status”—“closed out,” distributed, donated, etc. In sum, Shaw contends that the

critical jurisdictional inquiry here is whether the independent administration was open

or closed at the time Nicholson and the Riolas named her as a defendant. Cf. Tex.

Est. Code Ann. § 405.007(b) (providing if independent administration is formally

closed, independent executor’s power and authority terminate).

Independent estate administrations generally are not formally closed in Texas,

presumably because an independent executor is not required to formally close an

independent administration by filing a closing report, filing a notice of closing estate,

or seeking a declaratory judicial discharge. See id. § 405.012; Est. of Stegall, No. 02-17-

00410-CV, 2019 WL 6205244, at *6 (Tex. App.—Fort Worth Nov. 21, 2019, no pet.)

(mem. op.). See generally Tex. Est. Code Ann. § 402.001 (mandating after probate

court appoints independent executor and after independent executor files inventory

affidavit, further action by probate court prohibited unless otherwise provided in

9 Shaw signed the inventory affidavit on February 8, 2018, but filed it in the probate court on February 12, 2018.

14 Estates Code). In the absence of a formal closing, an independent administration may

be considered closed when the facts and circumstances show that all debts and claims

against the estate have been paid, the estate’s net assets have been distributed, and

there is no need for further administration. See Stegall, 2019 WL 6205244, at *6; In re

Est. of Teinert, 251 S.W.3d 66, 67 (Tex. App.—Waco 2008, pet. denied) (per curiam);

17 M. K. Woodward et al., Tex. Practice Series: Probate and Decedents’ Estates § 513.5

(2020). See generally William I. Marschall Jr., Independent Administration of Decedents’

Estates, 33 Tex. L. Rev. 95, 116 (1954) (“[I]ndependent executors may close an

administration and relinquish the property to the heirs or devisees, without the

formality of judicial sanction or with judicial sanction, if they so choose.”).

Accordingly, to determine whether the facts and circumstances indicate that an

independent administration was informally closed, “the issue is whether the debts of

the estate have been paid and the property distributed such that there was no need for

further administration.” In re Est. of Rowan, No. 05-06-00681-CV, 2007 WL 1634054,

at *3 (Tex. App.—Dallas June 7, 2007, no pet.) (mem. op.).

Here, Shaw’s inventory affidavit failed to address whether the estate’s assets

had been distributed. Although she averred that the estate had no unpaid debts and

that she was the sole beneficiary, she wholly failed to state that the estate’s assets had

been distributed. Until an estate’s assets are distributed, an independent

administration cannot be considered closed, even informally. See Stegall, 2019 WL

6205244, at *6; Teinert, 251 S.W.3d at 67. Of course, because an inventory affidavit is

15 filed within 90 days after the probate court appoints a personal representative, such an

affidavit is not statutorily required to state that the assets have been distributed or that

further administration is not needed. See Tex. Est. Code Ann. §§ 309.051(a),

309.056(b). In fact, one of the purposes of an inventory affidavit is to allow an

interested person10 to apply to the probate court for an order compelling the

independent executor to provide a copy of the full inventory, appraisement, and list of

claims. See id. § 309.056(c); 2 Thomas M. Featherston Jr. et al., Tex. Practice Guide:

Probate § 10:13 (2020).

Although Shaw’s affidavit met the statutory requirements for an inventory

affidavit, it did not provide the information that would show further administration

was not needed. See Rowan, 2007 WL 1634054, at *3. And Shaw’s after-the-fact

declarations, which were filed in the trial court in support of her special appearance,

do not equate to probate-court facts and circumstances establishing that the

independent administration had been informally closed in 2018. Cf. Mooney v. Harlin,

622 S.W.2d 83, 85 (Tex. 1981) (“Persons interested in an estate admitted to probate

are charged with the contents of the probate records.”).11 Thus, we conclude that the

Nicholson and the Riolas would be considered interested persons. See Tex. 10

Est. Code Ann. § 22.018(1).

We recognize that a special appearance is to be decided on the basis of any 11

submitted affidavits or attachments. See Tex. R. Civ. P. 120a.3. But Shaw’s special- appearance declarations add facts that were not included in her inventory affidavit and were not otherwise apparent in the probate court.

16 independent administration was not informally closed at the time Nicholson and the

Riolas named Shaw as a defendant in her capacity as Robin’s estate’s independent

executor. We overrule sub-issue two.

2. Shaw’s Actions as Independent Executor Establish Specific Jurisdiction

In her third sub-issue, Shaw argues that the evidence was legally and factually

insufficient to support the trial court’s implicit finding that she had sufficient

minimum contacts with Texas that would confer general or specific personal

jurisdiction. Regarding specific jurisdiction, she contends that she did not

purposefully avail herself of conducting business activities in Texas because by the

time Nicholson and the Riolas named her as a defendant, the estate was informally

closed and her obligations and duties as independent executor had ended. We have

rejected this argument and conclude that Shaw failed to negate specific jurisdiction.

See, e.g., Davis, 216 S.W.3d at 545–46. Because Shaw did not negate specific

jurisdiction, we need not address whether Shaw negated general jurisdiction. See E.

Concrete Materials, Inc. v. ACE Am. Ins. Co., 948 F.3d 289, 296 (5th Cir. 2020). We

overrule sub-issue three.

C. SHAW’S BURDEN TO ESTABLISH FAIR-PLAY AND SUBSTANTIAL-JUSTICE NOTIONS OFFENDED

In her fourth sub-issue, Shaw contends that the exercise of personal

jurisdiction would nevertheless offend traditional notions of fair play and substantial

justice. She argues that her age, her poor health, Texas’s minimal interest in bringing

17 a nonresident and nontortfeasor into Texas, Nicholson’s and the Riolas’ ability to

obtain effective relief without Shaw’s presence in the suit, the procedural

complications that would result from Shaw’s presence in the suit, and Texas and

Kentucky’s shared interest in probate finality all show that the exercise of personal

jurisdiction would offend fair play and substantial justice. Again, it is rare that these

notions will be offended if minimum contacts are established. Cornerstone Healthcare,

493 S.W.3d at 74; Guardian Royal, 815 S.W.2d at 231.

Shaw’s arguments do not meet her burden to present “a compelling case that

the presence of some other considerations would render jurisdiction unreasonable.”

Burger King, 471 U.S. at 477. In other words, this is not a rare instance where fair play

and substantial justice would be offended even though minimum contacts with Texas

are present. See Guardian Royal, 815 S.W.2d at 231. Shaw was able to administer

Robin’s estate in a Texas probate court even though she did not live in Texas.

Although Nicholson and the Riolas arguably could recover on their negligence claims

from the other named defendants, they are correct that such a recovery would not

account for any percentage of responsibility assigned to Robin. Any procedural issues

that could arise by Shaw’s presence in the suit would not put Shaw at a disadvantage.

And Shaw fails to explain how Kentucky’s interest in a deceased Texas resident’s

estate would be equivalent to Texas’s interest. We conclude that exercising personal

jurisdiction over Shaw would not offend traditional notions of fair play and

substantial justice. See, e.g., Cornerstone Healthcare, 493 S.W.3d at 74; Stein v. RevCap,

18 LLC, No. 04-16-00610-CV, 2017 WL 1244439, at *5 (Tex. App.—San Antonio

Apr. 5, 2017, no pet.) (mem. op.); Motor Car Classics, LLC v. Abbott, 316 S.W.3d 223,

233 (Tex. App.—Texarkana 2010, no pet.); Davis, 216 S.W.3d at 547–48. We overrule

Shaw’s fourth sub-issue.

IV. CONCLUSION

Nicholson and the Riolas rely solely on Shaw’s conducting business in Texas as

Robin’s estate’s independent executor to establish personal jurisdiction over Shaw,

which they sufficiently pleaded in their negligence suit. However, Shaw has failed to

negate this alleged jurisdictional basis. Although she filed an inventory affidavit while

acting as Robin’s estate’s independent executor in a Texas probate court, this affidavit

did not operate to informally close the independent administration because it did not

indicate that the assets had been distributed. And no other facts and circumstances in

the probate court so indicated. Accordingly, the independent administration was not

closed when Nicholson and the Riolas filed suit against Shaw in her capacity as the

estate’s independent executor based on Robin’s alleged negligence leading to the plane

crash. Because the independent administration was not closed, Shaw’s actions and

status as an independent executor in a Texas probate court provided the requisite

minimum contacts to confer specific, personal jurisdiction over Shaw in Texas. Shaw

has not met her burden to provide a compelling case that bringing her into a Texas

court would offend traditional notions of fair play and substantial justice. Thus, the

exercise of personal jurisdiction over Shaw comports with due process. For these

19 reasons, we overrule Shaw’s appellate issue and affirm the trial court’s order denying

Shaw’s special appearance.

/s/ Brian Walker

Brian Walker Justice

Delivered: July 1, 2021