Jack Craig Effel v. Robert G. Rosberg ( 2018 )

AFFIRM; and Opinion Filed September 17, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01332-CV
JACK CRAIG EFFEL, Appellant
V.
ROBERT G. ROSBERG, Appellee
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-17-02662-E
MEMORANDUM OPINION
Before Justices Myers, Evans, and Brown
Opinion by Justice Brown
Pro se appellant Jack Effel appeals the trial court’s order denying his special appearance.
For the following reasons, we affirm.
BACKGROUND
In cause number CC-13-01701-D, the trial court entered a final judgment against Jack’s
aunt Lena Effel and in favor of appellee Robert G. Rosberg, awarding Rosberg $51,729 as
damages, prejudgment interest, and court costs. In this case, Rosberg alleges Jack and his brother
Henry Effel caused Lena to be moved from Texas to Nevada to be with Jack and transferred Lena’s
assets to Jack. Henry previously told Rosberg that Henry and Jack stood to inherit $7,000,000
from Lena, but no probate proceedings were opened in either Texas or Nevada following her death
on or about September 14, 2014. Rosberg asserts claims for fraudulent transfer, alleging Jack and
Henry caused Lena or her estate to transfer substantially all of her assets, leaving the estate
insolvent and defrauding Rosberg, a judgment creditor.1 Rosberg also asserts a civil conspiracy
claim against Jack and Henry for conspiring with each other and with Lena and her estate to
commit fraudulent transfer.
Jack filed a special appearance, moving for dismissal on the ground that the trial court
lacked personal jurisdiction over him because Rosberg failed to plead requisite jurisdictional facts.
In an affidavit attached to his special appearance, Jack averred:
1. I currently reside in the State of Nevada with my wife and children. . . .
***
4. I personally do not conduct any business in the State of Texas, nor am I required
by my employer to perform any work in the State of Texas.
5. I have not committed a tort in whole or in part in the State of Texas and deny
having engaged in any tortious, fraudulent, or conspiratorial behavior or actions in
Texas or elsewhere.
***
7. I claim no interest in my brother Henry’s house, located in Texas. It is his house
and home. I have not lived there for over 20 years, when our parents were still
living at the time. The House is located at 3333 High Lark Drive, Dallas, TX
75234[.] Henry maintains the property, pays all his own bills, taxes and upkeep
and claims the property as his Texas homestead. He cuts the grass and takes out
the trash and lives there with his wife.
8. I contend that the exercise of personal jurisdiction over my person in this case,
would not comport with due process as I do not maintain the requisite minimum
contacts with the State of Texas to the extent called for under the law for jurisdiction
to be sustained in this matter.
9. I further contend that traditional notions of fair play and substantial justice would
be offended by the exercise of either general or specific jurisdiction in this matter,
as the undue burden that such exercise would create would outweigh the other
interests to be considered by the Court.
1
See TEX. BUS. & COM. CODE ANN. §§ 24.005, 24.006 (West 2015).
–2–
Thereafter, Rosberg amended his petition, adding as jurisdictional facts that (1) Jack owns
a fifty-percent interest in a single family residence at 3333 High Lark Drive in Dallas, Texas and
claims all the benefits of a homestead exemption on the property under Texas law, and (2) the
alleged conspiracy between Jack and Henry to transfer Lena’s assets out of state and into their own
pockets constitutes both a contract with a Texas resident that was performed in part by Jack in
Texas and a tort that occurred in part in Texas.
Jack appeared telephonically at a hearing on his special appearance. He did not introduce
any additional evidence, but argued he had no business dealings in Texas, he had given his interest
in the High Lark property to Henry many years ago and did not pay taxes or have any involvement
in decision-making related to the property, and the High Lark property was not related to the
subject matter of this case. At the hearing, Rosberg argued there was general jurisdiction, based
on Jack’s owning and claiming a homestead exemption on the High Lark property, and specific
jurisdiction based on the conspiracy claim arising from a contract between Jack and Henry to
fraudulently transfer funds belonging to a judgment creditor and the transfer of Lena’s assets and
her person from Texas to Las Vegas, a tort committed in part in Texas. Rosberg introduced, and
the trial court admitted, into evidence (1) a printout from the Dallas Central Appraisal District
website showing Jack as fifty-percent owner of the High Lark property and having received the
benefit of a homestead exemption on the property, and (2) Jack’s mother’s last will and testament
bequeathing her estate to Jack and Henry and an order admitting the will to probate as a muniment
of title.2
2
Rosberg also offered into evidence deemed admissions because Jack had refused to answer requests for admission, but neither the reporter’s
record nor clerk’s record contain a copy of the requests for admission.
–3–
The trial court subsequently entered an order denying Jack’s special appearance. Jack filed
a request for findings of fact and conclusions of law, but the trial court did not issue findings and
conclusions.
APPLICABLE LAW
Whether a trial court has personal jurisdiction over a nonresident defendant is a question
of law that we review de novo. Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 558
(Tex. 2018); Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). If, as in
this case, the trial court does not issue findings of fact and conclusions of law, we imply all relevant
facts that are necessary to support its ruling and supported by evidence. Old Republic, 549 S.W.3d
at 558.
Texas courts may exercise personal jurisdiction over a nonresident if “(1) the Texas long-
arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent
with federal and state constitutional due-process guarantees.” Id. (quoting Moncrief Oil, 414
S.W.3d at 149). The long-arm statute authorizes the exercise of personal jurisdiction over a
nonresident defendant who “does business” in Texas. See PHC-Minden, L.P. v. Kimberly-Clark
Corp., 235 S.W.3d 163, 166 (Tex. 2007). Relevant to this case, a
nonresident defendant “does business” in Texas if he “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” or “commits a
tort in whole or in part in this state.” See TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(1), (2)
(West 2015). The exercise of personal jurisdiction “comports with federal due process if the
nonresident defendant has ‘minimum contacts’ with Texas and the exercise of jurisdiction ‘does
not offend traditional notions of fair play and substantial justice.’” See M&F Worldwide Corp. v.
Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 885 (Tex. 2017) (citing Walden v. Fiore, 571
U.S. 277 283 (2014)).
–4–
To establish minimum contacts with Texas, a plaintiff must show the nonresident defendant
purposefully availed himself of the privilege of conducting activities within the state and, thus,
invoked the benefits and protections of Texas law. Montcrief Oil, 414 S.W.3d at 150. Texas courts
consider three factors to determine purposeful availment: (i) the defendant's own actions, and not
the unilateral activity of another party; (ii) whether the defendant's actions were purposeful rather
than random, attenuated, or fortuitous; and (iii) whether the defendant sought some benefit,
advantage, or profit by availing himself of the jurisdiction. Id. at 151; Jani-King Franchising Inc.
v. Falco Franchising, S.A., No. 05-15-00335-CV, 2016 WL 2609314, at *3 (Tex. App.—Dallas
May 5, 2016, no pet.) (mem. op.). The inquiry in a minimum contacts analysis focuses on the
“quality and nature of the defendant's contacts, rather than their number.” AM Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The defendant's activities must
justify a conclusion that the defendant could reasonably anticipate being called into a Texas court.
Id. Generally, we analyze a defendant’s contacts on a claim by claim basis to determine whether
each claim relates to the defendant’s minimum contacts, but we need not do so when—as in this
case—each claim arises from the same forum contacts. Moncrief, 414 S.W.3d at 150-51.
Minimum contacts with a forum may give rise to either general or specific jurisdiction. See
id. at 150. General jurisdiction arises when a defendant's contacts with the forum state are
continuous and systematic. Id. For specific jurisdiction, the focus is on “the relationship between
the forum, the defendant, and the litigation.” Old Republic, 549 S.W.3d at 559. Specific
jurisdiction exists when a plaintiff’s claims arise from or relate to the defendant’s contacts with
the forum state. TV Azteca, S.A.B. De C.V. v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016). A claim arises
from or relates to the forum contacts if there is a “substantial connection between [the] contacts
and the operative facts of the litigation.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,
585 (Tex. 2007).
–5–
To evaluate whether exercising jurisdiction offends traditional notions of fair play and
substantial justice, we consider: (1) the burden on the defendant, (2) the interests of the forum in
adjudicating the dispute, (3) the plaintiff's interest in getting convenient and effective relief, (4)
the international judicial system's interest in obtaining the most efficient resolution of
controversies, and (5) the shared interests of the several nations in furthering fundamental
substantive social policies. Spir Star AG v. Kimich, 310 S.W.3d 868, 878-79 (Tex. 2010). The
defendant must present a compelling case that the presence of some consideration would render
jurisdiction unreasonable. Id. at 879. Only rarely will the exercise of personal jurisdiction “not
comport with fair play and substantial justice when the nonresident defendant has purposefully
established minimum contacts with the forum state.” See Guardian Royal Exch. Assurance, Ltd.
v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991).
The plaintiff and the defendant bear shifting burdens of proof in a personal jurisdiction
challenge. Old Republic, 549 S.W.3d at 559. The plaintiff bears the initial burden to plead
sufficient allegations to invoke jurisdiction under the Texas long-arm statute. Moki Mac, 221
S.W.3d at 574. If the plaintiff pleads sufficient jurisdictional allegations, a defendant who contests
the trial court's exercise of personal jurisdiction bears the burden of negating all bases of
jurisdiction alleged by the plaintiff. Id. A defendant may negate jurisdiction on either a factual or
legal basis. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 659 (Tex. 2010). Factually, the
defendant may present evidence effectively disproving the plaintiff’s allegations. Id. Legally, the
defendant may negate jurisdiction by showing that, even if the plaintiff’s alleged facts are true,
“the evidence is legally insufficient to establish jurisdiction; the defendant’s contacts with Texas
fall short of purposeful availment; for specific jurisdiction, the plaintiff’s claims do not arise from
the contacts; or traditional notions of fair play and substantial justice are offended by the exercise
of jurisdiction.” Id. If the defendant negates all grounds for personal jurisdiction alleged by the
–6–
plaintiff, the burden shifts back to the plaintiff to show that the trial court has personal jurisdiction
over the defendant as a matter of law. Voltaix, LLC v. Ajongwen, 406 S.W.3d 235, 240 (Tex.
App.—Dallas 2013, no pet.).
ANALYSIS
In denying Jack’s special appearance, the trial court impliedly found the Texas long-arm
statute permits the exercise of jurisdiction over Jack, Jack had minimum contacts with Texas, and
the exercise of jurisdiction over Jack comports with procedural notions of fair play and justice. In
his first and second issues, however, Jack asserts the trial court erred in denying his special
appearance because his contacts with Texas are too attenuated to cause him to be subject to
personal jurisdiction and Rosberg’s pleading of a tort cause of action is insufficient to establish
personal jurisdiction.
Rosberg’s amended petition alleges, among other things, that (1) Henry and Jack caused
Lena to be moved from Texas to Nevada to be with Jack, (2) Henry and Jack caused Lena’s assets
to be transferred to Nevada into Jack’s care, custody or control, and (3) the “alleged conspiracy
between Jack and Henry to transfer [Lena’s] assets out of state and into their own pockets
constitutes a contract with a Texas resident that was performed in part by [Jack] in Texas. It also
constitutes a tort that occurred in part in Texas.” The long-am statute provides for jurisdiction
over a nonresident defendant who (1) contracts with a Texas resident and either party performs the
contract in whole or in part in Texas or (2) commits a tort in whole or in part in Texas. See CIV.
PRAC. & REM. § 17.042(1), (2). Rosberg’s allegations that Jack acted at least in part in Texas to
fraudulently transfer, and in furtherance of a conspiracy to fraudulently transfer, Lena’s assets
satisfies the long-arm statute’s requirements. Thus, Rosberg has satisfied his initial burden of
proof to plead allegations to bring Jack within the reach of the Texas long-arm statute. See Kelly,
301 S.W.2d at 659; CIV. PRAC. & REM. § 17.042(1), (2).
–7–
The burden of proof then shifted to Jack to negate all bases of personal jurisdiction alleged
by Rosberg. See Kelly, 301 S.W.3d at 658-59. Jack denied certain types of contacts with Texas
in his affidavit, but presented no evidence to dispute the specific allegation that he undertook acts
in Texas related to transferring Lena’s assets out of Texas and into his care, custody or control.3
Thus, Jack’s special appearance did not negate jurisdiction on a factual basis. See, e.g., Alencar
v. Shaw, 323 S.W.3d 548, 555-56 (Tex. App.—Dallas 2010, no pet.).
To negate specific jurisdiction on a legal basis, Jack was required to show that, even if
the amended petition’s facts are true, (1) the evidence is legally insufficient to establish
jurisdiction, (2) his contacts with Texas fall short of purposeful availment, (3) Rosberg’s claims
do not arise from Jack’s contacts, or (4) traditional notions of fair play and substantial justice are
offended by the exercise of jurisdiction. See Kelly, 301 S.W.3d at 659; Alencar, 323 S.W.3d at
551.
Jack generally contends in his affidavit and brief that he does “not maintain the requisite
minimum contacts with the State of Texas.” However, the jurisdictional facts alleged, assuming
they are true, establish Jack had minimum contacts with Texas giving rise to specific jurisdiction.
Rosberg alleged Jack (and not just Henry) performed acts in Texas related to removing Lena’s
assets from her and her estate and intended to benefit Jack and Henry by placing those assets in
their “pockets.” Accordingly, we conclude Rosberg’s amended petition, if true, alleges Jack
purposefully availed himself of the privilege of conducting activities in Texas. Rosberg’s
allegations also make clear that his claims relate to Jack’s contacts with Texas. There is a
substantial connection between the forum, Jack’s contacts to it, and the operative facts of the
3
During the 2017 hearing on his special appearance, Jack stated “I don’t visit Texas. I don’t stay in Texas. I haven’t actually been to Texas
in several years.” The record, however, contains no evidence to show that Jack was not in Texas during 2014 at times relevant to this case. Jack
generally averred that he has “not committed a tort in whole or in part in the State of Texas and den[ies] having engaged in any tortious, fraudulent,
or conspiratorial behavior or actions in Texas or elsewhere.” Such a statement, however, is conclusory and speculative and legally constitutes no
evidence. See Brownlee v. Brownlee, 665 S.W.3d 111, 112 (Tex. 1984) (affidavit must set forth facts, not legal conclusions); Hale v. Richey, No.
10-11-00187-CV, 2012 WL 89920, *9 (Tex. App.—Waco Jan. 11, 2012, no pet.) (defendant’s statement in affidavit that she never committed a
tort in Texas was conclusory and, thus, no evidence to negate plaintiff’s jurisdictional facts).
–8–
litigation; indeed, the alleged contacts form the factual basis for Rosberg’s claims. See, e.g., TV
Azteca, 490 S.W.3d at 53-55.
Jack also generally contends in both his affidavit and brief that the “assertion of jurisdiction
over [him] offends traditional notions of fair play and substantial justice” and “the undue burden
that such exercise would create would outweigh the other interest to be consider by the Court.”
His brief lists the factors for evaluating the reasonableness of the exercise of jurisdiction, but he
has not attempted to explain why any of the factors inure to his benefit or otherwise demonstrate
how asserting jurisdiction over him offends traditional notions of fair play and substantial justice.
Thus, Jack has not made a compelling showing that the exercise of personal jurisdiction over him
would offend fair play and substantial justice. See Hoagland v. Butcher, 396 S.W.3d 182, 196
(Tex. App.—Houston [14th Dist.] 2013, pet. denied). To the contrary, a Texas court clearly has an
interest in serving as the forum to resolve a dispute in which a Texas judgment creditor alleges a
fraudulent transfer of assets from Texas that might be subject to execution in order to satisfy the
Texas judgment.
The record does not demonstrate that Jack met his burden to negate specific personal
jurisdiction, either factually or legally, and instead supports the trial court’s implied findings that
Jack had minimum contacts with Texas and the exercise of jurisdiction over him does not offend
traditional notions of fair play and substantial justice. Accordingly, we conclude the trial court did
not err in denying Jack’s special appearance. Because we have concluded the trial court had
specific jurisdiction over Jack, we need not address whether it also had general jurisdiction. We
overrule Jack’s first and second issues.
Jack also raises an alternative “tertiary issue” suggesting dismissal of this case and
remanding it to a probate court may be appropriate “due to the nature of the debt.” In doing so, he
cites only to a Suggestion of Death and Judgment Creditor’s Application for Writ of Scire Facias
–9–
filed by Rosberg in cause number CC-13-01701-D and not a part of the clerk’s record in this case.
A pro se appellant is held to the same standards as licensed attorneys and must properly present
his case on appeal and comply with applicable laws and rules of procedure. Strange v. Cont’l Cas.
Co., 126 S.W.3d 676, 677-78 (Tex. App.—Dallas 2004, pet denied). The rules of appellate
procedure require an appellant's brief to contain “a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). An
issue on appeal unsupported by argument or citation to legal authority or the record presents
nothing for us to review. Strange, 126 S.W.3d at 678. With respect to whether jurisdiction may
be appropriate in a probate court, Jack’s brief does not contain citations to legal authority or the
record in support of the argument, which is little more than a statement of the issue. Because it is
unsupported by argument or appropriate citation to legal authority and the record, we overrule
Jack’s tertiary issue. See TEX. R. APP. P. 38.1(i); Strange, 126 S.W.3d at 678.
We affirm the trial court's order denying Jack’s special appearance and remand the case to
the trial court for further proceedings consistent with this opinion.
/Ada Brown/
ADA BROWN
JUSTICE
171332F.P05
–10–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JACK CRAIG EFFEL, Appellant On Appeal from the County Court at Law
No. 5, Dallas County, Texas
No. 05-17-01332-CV V. Trial Court Cause No. CC-17-02662-E.
Opinion delivered by Justice Brown;
ROBERT G. ROSBERG, Appellee Justices Myers and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee ROBERT G. ROSBERG recover his costs of this appeal
from appellant JACK CRAIG EFFEL.
Judgment entered this 17th day of September, 2018.
–11–