Dennis Eckel v. Ricco Family Partners, Ltd. ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00249-CV
CHRISTOPHER HOSKINS APPELLANT
V.
RICCO FAMILY PARTNERS, LTD. APPELLEE
AND
NO. 02-15-00253-CV
DENNIS ECKEL APPELLANT
V.
RICCO FAMILY PARTNERS, LTD. APPELLEE
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FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-01284-158
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MEMORANDUM OPINION1
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This is an appeal from an order denying special appearances filed by
appellants Christopher Hoskins and Dennis Eckel. Appellants bring three issues
challenging the trial court’s findings of fact and conclusions of law and
contending that appellee Ricco Family Partners, Ltd. failed to plead or produce
facts showing that the trial court has either general or specific jurisdiction. We
affirm.
Procedural Background
Ricco initially sued Zimba Capital, G.P. in February 2014 seeking to quiet
title to property in Denton County. Ricco’s petition named appellants as persons
of interest who “may have an interest in the subject matter” of the suit. In May
2014, appellants each filed a document entitled “Absolute and Unconditional
Disclaimer,” in which they stated that they did not own or claim any “legal or
equitable right, title, or interest in the land.”2 Ricco later added appellants Vista
1
See Tex. R. App. P. 47.4.
2
Ricco does not contend in its brief that these filings resulted in a waiver of
the special appearance, and the trial court did not make such a finding in its
findings of fact. Because both filings identified the suit as an “in rem” action and
asserted that neither Hoskins nor Eckels owned any legal or equitable interest in
the land that was the subject of the original petition, they do not appear to be
inconsistent with a later denial of personal jurisdiction. See Exito Elecs. Co. v.
Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (“[A] party enters a general appearance
when it (1) invokes the judgment of the court on any question other than the
court’s jurisdiction, (2) recognizes by its acts that an action is properly pending,
or (3) seeks affirmative action from the court.”).
2
Ridge Limited Partners (the Limited Partnership) and Vista Ridge Corporation
(the Corporation) as parties to the suit. Appellants, who are California residents,
both filed special appearances. See Tex. R. Civ. P. 120a. They then filed a joint
conditional answer subject to their special appearances.
After appellants filed their special appearances, Ricco filed a fourth
amended petition. In that petition, Ricco pled the following facts. In 2007 and
2008, it loaned the Limited Partnership a total of $1,075,000, evidenced by
promissory notes and secured by a deed of trust on property in Denton County.
Appellants, who are limited partners of the Limited Partnership and directors of
the Corporation, personally guaranteed the note. When appellants told Ricco
that the note would not be paid on its maturity date and that tax liens had been
filed on the property, Ricco began foreclosure proceedings. Ricco provided
notice of the proceedings to Zimba, a second lienholder. The foreclosure took
place on July 5, 2011.
After the foreclosure, Ricco, appellants, the Limited Partnership, and the
Corporation entered into a hold harmless agreement, and Ricco received a
quitclaim deed to the property. Because Zimba continued to claim an interest in
the property, Ricco filed this suit to quiet title. In April 2014, Maracom
International filed a document in the Denton County records purporting to show
that Zimba had transferred its second lienholder interest to Maracom in 2010
and, therefore, that Maracom was the second lienholder at the time of the July
2011 foreclosure. The sole director of both Maracom and Zimba is Steffen
3
Waltz. Appellants along with Zimba, both Vista entities, and Waltz represented in
July 2011 that Zimba was the second lienholder on the Property.
Ricco additionally alleged that Zimba, Maracom, Waltz, the Limited
Partnership, the Corporation, and appellants, along with another party Richard
Andreson, “acted in concert to create a false perception that Maracom had been
a second lienholder on the Property before [the] foreclosure by backdating
documents to reflect a prior transfer of the note and lien from Zimba to Maracom
when no such transfer actually occurred.” Ricco also alleged that “[t]he transfer
of lien was filed against the Property after this lawsuit was instituted in an attempt
to encumber and destroy [its] rights to the Property.” Ricco further alleged that
also in April 2014,
Vista, through Hoskins, signed a new note to Maracom which stated
that the note had been “informally” extended and a new interest rate
of 10% was now being charged. This note would be used to support
the alleged fraudulent lien on the Property for over one million
dollars in favor of Maracom.
Ricco sought a declaratory judgment that Zimba did not transfer its second
lien to Maracom before the 2011 foreclosure and that Maracom has no legal or
equitable right to challenge the foreclosure because it was not a lienholder or in
privity with the Vista entities when the foreclosure occurred. Additionally, Ricco
brought a claim for conspiracy to create and file a fraudulent lien under section
12.001 of the civil practice and remedies code: “Defendants have created and
filed a document in the Denton County public records with the intent of creating a
false lien on [Ricco’s] Property with intent to cause [Ricco] financial injury . . . .”
4
Tex. Civ. Prac. & Rem. Code Ann. § 12.001 (West Supp. 2015). Ricco alleged
that all of the defendants acted knowingly and willfully. Finally, Ricco claimed
that Maracom should be estopped from claiming any lien in the property.
As to appellants, Ricco also alleged specific instances of contact with the
State of Texas that they claim constitute continuous and systematic contacts with
the State. Among these, they allege the following:
41. [Appellants] renewed a note to Maracom knowing that no
collection efforts had ever been made on the original note and that
no collection efforts would be made on the renewal of this note.
[Appellants] knowingly agreed to be liable for over a million dollar
note knowing that the sole purpose of this note was to cloud Ricco’s
title.
42. [Appellants] are jointly and severally liable for the torts
plead[ed] in this lawsuit arising out of transactions in Texas while
operating Vista. [Appellants] conspired with the other Defendants to
cause a fraudulent lien to be put on the Property which they had filed
a disclaimer of any rights of ownership.
After a nonevidentiary hearing, the trial court denied appellants’ special
appearances. The trial court made the following relevant findings of fact and
conclusions of law in support of its ruling:
I.
FINDINGS OF FACT
1. In paragraph 17 of Plaintiff’s Fourth Amended Original
Petition, Plaintiff alleged that prior to Plaintiff’s foreclosure of the
disputed property in 2011, Hoskins and Eckel together with other
Texas Defendants, represented that Zimba was the second
lienholder.
2. In paragraph 21 of Plaintiff’s Fourth Amended Original
Petition, Plaintiff alleged that Hoskins and Eckel acted in concert
with the Texas Defendants to create a false perception that
5
Defendant Maracom had been the second lienholder at the time of
Plaintiff’s foreclosure of its lien, by back dating documents to reflect
a transfer of the note and lien to Maracom when no transfer had
occurred.
3. In paragraph 30 of Plaintiff’s Fourth Amended Original
Petition, Plaintiff alleged Hoskins and Eckel together with the other
Texas Defendants created and filed a false document in the Denton
County public records with the intent of creating a false lien on
Plaintiff’s property to Plaintiff’s injury.
4. In paragraph 22 of Plaintiff’s Fourth Amended Original
Petition, Plaintiff alleged that Hoskins on behalf of Vista Ridge
executed a new note with increased interest rate to increase the
amount of the note to over a million dollars and which purported to
be secured by the fraudulent lien filed in Denton County, Texas.
5. Plaintiff’s Fourth Amended Original Petition expressly
alleged that Defendants, Hoskins and Eckel were purposefully and
intentionally involved with other Texas Defendants in engaging in
tortious conduct in Texas by filing a fraudulent lien in the Denton
County, Texas public records to cloud Plaintiff’s title to the real
property in dispute.
....
II.
CONCLUSIONS OF LAW
1. Defendants Hoskins and Eckel, had the burden of negating
all jurisdictional bases alleged in Plaintiff’s Fourth Amended Original
Petition. Kelly v. General Interior Construction, Inc., 301 S.W.3d 653
(Tex. 2010).
2. Defendants, Hoskins and Eckel, need not have entered the
state of Texas in the commission of their tortious acts, as long as
they had purposefully directed their activities toward this State and
the litigation arises from those activities. Hagerty Partners
Partnership v. Livingston, 128 S.W.3d 416 (Tex. App. – Dallas 2004,
pet. den.).
3. Plaintiff’s Fourth Amended Original Petition alleged
sufficient facts against Defendants, Hoskins and Eckel, to establish
6
that Defendants had committed a tort in Texas in whole or in part
and thereby had done business in Texas pursuant to Section
17.042(2) Tex. Civ. Prac. & Rem. Code.
4. The evidence of Defendants, Hoskins and Eckel presented
in support of their Special Appearances did not negate Plaintiff’s
allegations in its petition that Hoskins and Eckel purposefully
engaged in tortious conduct with the other Texas Defendants to file
a fraudulent lien in Denton County, Texas records to cloud Plaintiff’s
title.
5. Defendants, Hoskins and Eckel, as officers and directors,
are not protected from liability by the “Fiduciary Shield” doctrine,
because officers and directors are personally liable for their own
tortious conduct even though committed in their corporate or
fiduciary capacity. SITQ E.U., Inc. v. Reata Restaurants, Inc., 111
S.W.3d 638 (Tex. App. – Fort Worth, 2005 pet. den.).
6. The court has personal jurisdiction of Defendants, Hoskins
and Eckel, based on the principle of specific jurisdiction and further
the exercise of personal jurisdiction over Defendant comports with
traditional notions of fair play and substantial justice. Hagerty
Partners Partnership v. Livingston, 128 S.W.3d 416 (Tex. App. –
Dallas, pet. den.).
Standard of Review
Whether a trial court has personal jurisdiction over a defendant is a
question of law, which we review de novo. Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569, 574 (Tex. 2007); TravelJungle v. Am. Airlines, Inc., 212 S.W.3d
841, 845 (Tex. App.––Fort Worth 2006, no pet.). The plaintiff bears the initial
burden of pleading sufficient allegations to bring a nonresident defendant within
the provisions of the long-arm statute. Moki Mac, 221 S.W.3d at 574;
TravelJungle, 212 S.W.3d at 845. Once the plaintiff does so, the burden shifts to
the nonresident defendant to negate all alleged jurisdictional bases. Moki Mac,
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221 S.W.3d at 574; TravelJungle, 212 S.W.3d at 845. We review all of the
evidence in making this determination. TravelJungle, 212 S.W.3d at 845. We
may review the trial court’s resolution of disputed fact issues for legal and factual
sufficiency under the same standards of review that we apply in reviewing a
jury’s or trial court’s findings of fact at trial. Id.
Applicable Law
A Texas court may assert personal jurisdiction over a nonresident
defendant only if the requirements of due process under the Fourteenth
Amendment and the Texas long-arm statute are satisfied. U.S. Const. amend.
XIV, § 1; Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045 (West 2015);
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14, 104 S.
Ct. 1868, 1871–72 (1984); Moki Mac, 221 S.W.3d at 574.
A. Long-arm Statute
The Texas long-arm statute governs Texas courts’ exercise of jurisdiction
over nonresident defendants. Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–
.045; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.
2002); TravelJungle, 212 S.W.3d at 845. That statute permits Texas courts to
exercise jurisdiction over a nonresident defendant who “does business” in Texas.
Tex. Civ. Prac. & Rem. Code Ann. § 17.042; BMC Software, 83 S.W.3d at 795;
TravelJungle, 212 S.W.3d at 845. The statute lists some activities that constitute
“doing business” in Texas, including committing a tort, in whole or in part, in
Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042; Moki Mac, 221 S.W.3d at
8
574; TravelJungle, 212 S.W.3d at 845. The list of activities set forth in section
17.042 is not exclusive, however. BMC Software, 83 S.W.3d at 795;
TravelJungle, 212 S.W.3d at 845.
Because the long-arm statute reaches “as far as the federal constitutional
requirements for due process will allow,” a Texas court may exercise jurisdiction
over a nonresident if doing so “comports with federal due process limitations.”
TV Azteca v. Ruiz, No. 14-0186, 2016 WL 766927, at *2 (Tex. Feb. 26, 2016)
(quoting Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010)). Therefore,
in determining whether such requirements have been met, we rely on precedent
from the United States Supreme Court and other federal courts, as well as our
own state’s decisions. BMC Software, 83 S.W.3d at 795; TravelJungle, 212
S.W.3d at 845–46.
B. Due Process
Due process is satisfied when (1) the defendant has established minimum
contacts with the forum state and (2) the exercise of jurisdiction comports with
traditional notions of fair play and substantial justice. Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945); TV Azteca, 2016 WL
766927, at *2; TravelJungle, 212 S.W.3d at 846. A nonresident defendant who
has “purposefully availed” himself of the privileges of conducting business in a
foreign jurisdiction, invoking the benefits and protections of its laws, has sufficient
minimum contacts with the forum to confer personal jurisdiction on a court in that
forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–76, 105 S. Ct. 2174,
9
2183–84 (1985); Moki Mac, 221 S.W.3d at 575. Three factors important in
determining whether a defendant has purposefully availed itself of the forum are
(1) only the defendant’s contacts with the forum count, (2) the acts relied on must
be purposeful rather than merely fortuitous, and (3) the defendant must seek
some benefit, advantage, or profit by availing itself of the forum. Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005); TravelJungle,
212 S.W.3d at 846.
C. General v. Specific Jurisdiction
Personal jurisdiction exists if the nonresident defendant’s minimum
contacts give rise to either specific jurisdiction or general jurisdiction.
Helicopteros Nacionales de Colombia, 466 U.S. at 413–14, 104 S. Ct. at 1872;
TV Azteca, 2016 WL 766927, at *3; TravelJungle, 212 S.W.3d at 846. A trial
court has general jurisdiction over a nonresident defendant when that
defendant’s contacts in a forum are continuous and systematic so that the forum
may exercise personal jurisdiction over the defendant even if the cause of action
did not arise from or relate to activities conducted within the forum state. Moki
Mac, 221 S.W.3d at 575; TravelJungle, 212 S.W.3d at 846.
In contrast, specific jurisdiction is present if the nonresident defendant’s
alleged liability arises from or is related to an activity conducted within the forum.
Moki Mac, 221 S.W.3d at 575; TravelJungle, 212 S.W.3d at 846–47. In other
words, “there must be a substantial connection between those contacts and the
operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585. When a plaintiff
10
asserts that a trial court has specific jurisdiction over a nonresident defendant,
the minimum contacts analysis focuses on the relationship among the defendant,
the forum, and the litigation. Moki Mac, 221 S.W.3d at 575–76; Guardian Royal
Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex.
1991); TravelJungle, 212 S.W.3d at 847. For a Texas trial court to have specific
jurisdiction over a nonresident defendant, it is not necessary that the nonresident
defendant’s conduct actually occur in Texas, as long as the defendant’s acts
were purposefully directed towards Texas as opposed to at a specific person
who merely happens to be a Texas resident. See Calder v. Jones, 465 U.S. 783,
789–90, 104 S. Ct. 1482, 1487 (1984); TV Azteca, 2016 WL 766927, at *7–8;
TravelJungle, 212 S.W.3d at 847. As the supreme court has recently clarified,
We explained in Michiana that courts cannot base specific
jurisdiction merely on the fact that the defendant “knows that the
brunt of the injury will be felt by a particular resident in the forum
state.” “Put simply, however significant the plaintiff’s contacts with
the forum may be, those contacts cannot be ‘decisive in determining
whether the defendant’s due process rights are violated.’”
As Trevino notes, however, the court of appeals did not rely
on the mere fact that Trevino lives in Texas and allegedly suffered
harm here. To the contrary, the court agreed with Petitioners that its
analysis should not focus “on where the plaintiffs felt the harm
caused by the defamation if the defendants have not directed the
publication or broadcast at the forum,” and explained that it had “not
considered [Trevino’s] injury or residence in [its] analysis because it
is not relevant.” . . .
There is a subtle yet crucial difference between directing a tort
at an individual who happens to live in a particular state and
directing a tort at that state. In Michiana, for example, the defendant
allegedly directed a tort (by making misrepresentations in a phone
call) at a plaintiff who lived in Texas, but that was the defendant’s
11
only contact with Texas. By contrast, in Keeton, the plaintiff did not
even reside in the forum state, but the defendant had “continuously
and deliberately exploited the New Hampshire market” by regularly
distributing its magazines there. Thus, when the magazine ran a
story that allegedly defamed the plaintiff, it directed a tort at the state
of New Hampshire, not just at the plaintiff. Under Keeton, Calder,
Walden, and Michiana, the fact that the plaintiff lives and was injured
in the forum state is not irrelevant to the jurisdictional inquiry, but it is
relevant only to the extent that it shows that the forum state was “the
focus of the activities of the defendant.”
TV Azteca, 2016 WL 766927, at *7–8 (citations omitted).
D. Traditional Notions of Fair Play and Substantial Justice
Even when a nonresident has established minimum contacts with a state,
due process permits the state to assert jurisdiction over the nonresident only if
doing so comports with “traditional notions of fair play and substantial justice.”
TV Azteca, 2016 WL 766927, at *17 (quoting Int’l Shoe, 326 U.S. at 316, 66 S.
Ct. at 154). Typically, “[w]hen a nonresident defendant has purposefully availed
itself of the privilege of conducting business in a foreign jurisdiction, it is both fair
and just to subject that defendant to the authority of that forum’s courts.” Id.
(quoting Spir Star, 310 S.W.3d at 872). Thus, “[i]f a nonresident has minimum
contacts with the forum, rarely will the exercise of jurisdiction over the
nonresident not comport with traditional notions of fair play and substantial
justice.” Id. (quoting Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142,
154–55 (Tex. 2013)).
Nevertheless, we consider several factors to evaluate the fairness and
justness of exercising jurisdiction over a nonresident defendant: (1) the burden
12
on the defendant; (2) the interests of the forum in adjudicating the dispute; (3) the
plaintiff’s interest in obtaining convenient and effective relief; (4) the international
judicial system’s interest in obtaining the most efficient resolution of
controversies; and (5) the shared interest of the several nations in furthering
fundamental substantive social policies. Id. “To defeat jurisdiction, [the
defendant] must present ‘a compelling case that the presence of some
consideration would render jurisdiction unreasonable.’” Id. (quoting Spir Star,
310 S.W.3d at 878–89).
Analysis
The trial court did not find that Ricco pled facts showing general
jurisdiction, but it did find that Ricco had pled sufficient facts showing specific
jurisdiction and that the exercise of such jurisdiction would not offend traditional
notions of fair play and substantial justice. Appellants contend that the trial court
erred because Ricco did not plead any specific acts in furtherance of the
conspiracy that appellants performed while physically present in the state of
Texas. However, as we have discussed above, appellants’ alleged acts need not
have occurred while they were physically in the state of Texas if those acts were
sufficiently directed at the state and not just a particular resident.
In Retamco Operating, Inc. v. Republic Drilling Co.––which the supreme
court cited in TV Azteca and which was decided after Michiana––the supreme
court held that Republic had “reached out and created a continuing relationship
in Texas” by purchasing and taking assignment of real property interests in
13
Texas even though Republic never entered the state to do so. 278 S.W.3d 333,
339 (Tex. 2009). The court also noted that the contact was not merely fortuitous
in that the location of the property is “fixed in this state.” Id. Thus, the court held
that Republic had purposefully availed itself of the privilege of conducting
activities in Texas. Id. at 340. The court further determined that Retamco had
shown a substantial connection between these contacts and the operative facts
of the litigation because the value of the real property assets in Texas would
have to be proven in connection with the fraudulent transfer claim alleged in that
case. Id. at 340–41. The court concluded,
Republic is alleged to have received transfer of Texas real
property from a Texas resident, during the pendency of a Texas suit,
for the purpose of defrauding a Texas resident. As a result of this
transaction, assets ROI may have recovered from Paradigm are now
in the possession of Republic. These contacts are sufficient to
demonstrate that this alleged tort occurred at least, in part, in Texas.
Id. at 341.
In Ryan Cos. US, Inc. v. Notch, No. 10-15-00227-CV, 2016 WL 859231
(Tex. App.––Waco Mar. 3, 2016, no pet. h.) (mem. op.), the court of appeals held
that the plaintiffs pled sufficient facts to show the trial court’s specific jurisdiction
over Notch because his alleged negligence occurred as a result of his
participation in the design process for a Gander Mountain store that was being
built and was to operate as an ongoing business in Corsicana, Texas. Id. at *4–
5. In discussing directed-a-tort jurisprudence, the court noted, similarly to the
supreme court in TV Azteca, that there is a difference between directing a tort at
14
a person who happens to live in Texas or when the injury is felt in Texas and the
deliberate establishment of contacts specifically in connection with a construction
project to be built on real property located in Texas. Id. at *4 (citing Zac Smith &
Co. v. Otis Elevator Co., 734 S.W.2d 662, 665–66 (Tex. 1987), cert. denied, 484
U.S. 1063 (1988), and distinguishing Michiana).
Here, appellants have never had any individual ownership interests in the
property involved in the suit,3 like the defendant in Retamco. They were merely
limited partners of the Limited Partnership. Although mere passive investment in
a limited partnership will not amount to purposeful availment, Nacho Remodeling
Co. v. Calsherm Partners, L.P., No. 05-14-00048-CV, 2014 WL 3828219, at *4
(Tex. App.––Dallas Aug. 5, 2014, no pet.) (mem. op.), here, Ricco has alleged
that appellants’ involvement went further than merely their status as limited
partners of the former property owner. Instead, Ricco contended in its pleadings
that appellants were jointly and severally liable with the other defendants and that
the object of the alleged conspiracy is the title to real property located in Denton
County, Texas. See Norstrud v. Cicur, No. 02-14-00364-CV, 2015 WL 4878716,
at *10 (Tex. App.––Fort Worth Aug. 13, 2015, no pet.) (mem. op.) (explaining that
allegations of tortious conduct by corporate officer are sufficient to preclude
protection via fiduciary shield doctrine). Ricco alleges that appellants assisted
3
The mere fact of ownership of property in Texas is not sufficient to
establish minimum contacts; the contact must still be purposeful and bear a
substantial connection to the operative facts of the litigation. See Johnson v.
Kindred, 285 S.W.3d 895, 903 (Tex. App.––Dallas 2009, no pet.) (op. on reh’g).
15
Waltz in backdating documents between Zimba and Maracom showing that
Maracom, rather than Zimba, was the second lienholder with a security interest in
the property at the time of the foreclosure, so as to enable Maracom to record
documents in the Denton County property records that would create a cloud on
that property’s title.
Recorded instruments in a grantee’s chain of title generally establish an
irrebuttable presumption of notice of an interest in real property. Ford v. Exxon
Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007); Aston Meadows, Ltd. v.
Devon Energy Prod. Co., L.P., 359 S.W.3d 856, 859 (Tex. App.––Fort Worth
2012, pet. denied). As the supreme court has noted in a deed reformation suit,
“The stakes are high, as reliability of record title contributes mightily to the
predictability of property ownership that is so indispensable to our legal and
economic systems.” Cosgrove v. Cade, 468 S.W.3d 32, 34 (Tex. 2015). Thus,
Ricco’s allegations as to the purpose of the conspiracy have potentially more far-
reaching effects that extend not only to Ricco’s individual financial interest but
also to the state’s interest in maintaining stability and certainty regarding title to
real property.
We conclude and hold that the alleged actions toward and injury alleged
here––which are the crux of the allegations against appellants––are directed at
the state of Texas rather than solely at Ricco and show purposeful availment
16
necessary to support minimum contacts for purposes of specific jurisdiction.4
See Ryan Cos. US, 2016 WL 859231, at *4; San Pedro Impulsora de Inmuebles
Especiales, S.A. de C.V. v. Villarreal, 330 S.W.3d 27, 41 (Tex. App.––Corpus
Christi 2010, no pet.) (holding that trial court had personal jurisdiction over
Mexican company (1) that had been formed by woman who at time of suit was
ward of Cameron County solely to own real property in Texas and (2) that was
alleged to have participated in a fraudulent suit in Mexico to obtain funds from the
woman with the goal of ultimately depositing those funds in a Texas bank);
TravelJungle, 212 S.W.3d at 850–51 (holding that allegations that defendant
purposefully directed its alleged tortious activity to computer servers of plaintiff
that were physically located in the state of Texas were sufficient to support
specific jurisdiction). On that basis, this case is distinguishable from Horowitz v.
Berger, 377 S.W.3d 115 (Tex. App.––Houston [14th Dist.] 2012, no pet.), in
which the economic injuries were not directed at property itself but were allegedly
suffered by and directed at individual investors in Texas property based on
alleged misrepresentations made by the defendant in Israel. Id. at 125–27; see
also Curocom Energy LLC v. Young-Sub Shim, 416 S.W.3d 893, 898 (Tex.
App.––Houston [1st Dist.] 2013, no pet.) (following Horowitz in case involving
fraudulent inducement claim).
4
Because we have determined that the trial court did not err by determining
that it had specific jurisdiction, we need not address appellants’ argument that
the trial court did not have general jurisdiction. See Tex. R. App. P. 47.1.
17
Appellants argue that the burden shifted to Ricco to present evidence
supporting all bases of jurisdiction in response to appellants’ evidence
conclusively negating jurisdiction and that Ricco failed to do so. When a plaintiff
pleads sufficient jurisdictional allegations, the defendant bears the burden of
negating all bases of personal jurisdiction alleged by the plaintiff; this burden is
“tied to the allegations in the plaintiff’s pleading.” Kelly v. Gen. Interior Constr.,
Inc., 301 S.W.3d 653, 658 (Tex. 2010); cf. George v. Deardorff, 360 S.W.3d 683,
687 (Tex. App.––Fort Worth 2012, no pet.) (explaining that if plaintiff fails to
plead sufficient facts to bring defendant within reach of long-arm statute,
defendant need only prove that he or she does not live in Texas to meet burden
of negating jurisdictional allegations in plaintiff’s pleading). The general
statement included in appellants’ verified special appearances that neither has
“committed a tort, in whole or in part, in Texas” is conclusory and not sufficient to
shift the burden to Ricco to produce evidence supporting its specific allegations
that appellants participated in a conspiracy aimed at clouding title to real property
in Texas. See Hoagland v. Butcher, 396 S.W.3d 182, 193 (Tex. App.––Houston
[14th Dist.] 2013, pet. denied).
Moreover, considering the nature of the allegations, Texas’s interest in
resolving a dispute potentially affecting its real property records, and the lack of
any compelling evidence showing an unreasonable burden on appellants or a
greater interest of the resolution of the dispute in some other state, including
California, we conclude and hold that the trial court did not err by determining
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that its exercise of jurisdiction would not offend traditional notions of fair play and
substantial justice.
Accordingly, we overrule appellants’ three issues.
Conclusion
Having overruled appellants’ three issues, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
GABRIEL, J., concurs without opinion.
DELIVERED: May 12, 2016
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