Karen E. Landa v. Charles L. Farris ( 2015 )

ACCEPTED
03-15-00497-CV
7774271
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/10/2015 5:02:33 PM
JEFFREY D. KYLE
CLERK
Case Number 03-15-00497-CV
IN THE THIRD DISTRICT COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
at Austin AUSTIN, TEXAS
11/10/2015 5:02:33 PM
JEFFREY D. KYLE
KAREN E. LANDA, Clerk
Appellant,
v.
CHARLES L. FARRIS,
Appellee.
From Cause No. D-1-GN-14-004469 in the 98th Judicial District Court
Of Travis County, Texas
APPELLEE’S BRIEF
THE CRONFEL FIRM
Guillermo Ochoa-Cronfel
State Bar No. 15175600
2700 Bee Caves Road, Suite 103
Austin, Texas 78746
Telephone: (512) 347-9600
Facsimile: (512) 347-9911
Guillermo@thecronfelfirm.com
ATTORNEYS FOR APPELLEE
ORAL ARGUMENT REQUESTED
November 10, 2015
Table of Contents
INDEX OF AUTHORITIES…………………………………………………...…...3
STATEMENT OF THE CASE………………………………………………..……7
STATEMENT REGARDING ORAL ARGUMENT…………………..………..…8
ISSUES PRESENTED..............................................................................................9
STATEMENT OF FACTS…………………………………………………...…...10
SUMMARY OF THE ARGUMENT………………………………….………..…13
ARGUMENT AND AUTHORITIES…………………………………………..…14
A. Standard of Review………………………………………...……...…....14
B. The Texas long-arm statute……………………………………………..18
C. Landa did not preserve any error with respect to whether or not Farris
met his initial burden to bring her under the Texas long-arm statute.
Moreover, Farris’s First Amended Petition contains sufficient personal
jurisdictional allegations to meet that initial burden. (Reply to
Appellant’s Issue 1)..................................................................................19
D. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h),
as it is inadequately briefed. Moreover, there is legally and factually
sufficient evidence in the record to support a finding by the trial court
that it has specific jurisdiction over Landa. (Reply to Appellant’s Issue
2)…………………………………………………………………….….23
E. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h),
as it is inadequately briefed. Moreover, there is legally and factually
sufficient evidence in the record to support a finding by the trial court
that it has general jurisdiction over Landa. (Reply to Appellant’s Issue
3)……………………………………………………………….…….…34
CONCLUSION…...................................................................................................38
[1]
PRAYER.................................................................................................................39
Certificate of Compliance........................................................................................41
Certificate of Service...............................................................................................41
Appendix.................................................................................................................42
[2]
INDEX OF AUTHORITIES
Page(s)
Cases
BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002)………………….……..14, 15, 16, 18, 26, 27, 36
Benoit v. Wilson,
279 S.W.2d 792 (Tex. 1951)………………………………………………..17
Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985)……………………………………………...……..26, 27
CSR Ltd. v. Link,
925 S.W.2d 591 (Tex. 1996)…………………………………………....27, 36
Carney v. Roberts Inv. Co.,
837 S.W.2d 206 (Tex.App.-Tyler 1992, writ denied)……………………….16
Citrin Holdings, LLC v. Minnis,
305 S.W.3d 269 (Tex.App.-Houston [14th Dist.]
2009, no pet.)………………………………………………..26, 27, 31, 32, 33
Daimler AG v. Bauman,
134 S. Ct. 746 (2014)………………………………………………………..14
Diversicare Gen. Partner, Inc. v. Rubio,
185 S.W.3d 842 (Tex. 2005)………………………………………………..23
Ennis v. Loiseau,
164 S.W.3d 698 (Tex.App.-Austin 2005, no pet.)……...15, 16, 17, 19, 20, 22
French v. Glorioso,
94 S.W.3d 739 (Tex.App.-San Antonio 2002, no pet.)…………………16, 17
GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G. v. Varme,
991 S.W.2d 785 (Tex. 1999)……………………………………………......20
[3]
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
815 S.W.2d 223 (Tex. 1991)…………………….…………….…….18, 19, 27
Happy Harbor Methodist Home, Inc. v. Cowins,
903 S.W.2d 884 (Tex.App.-Houston [1st Dist.] 1995, no writ)..…….….23, 25
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984)………………………………………………….....26, 27
Helitrans Company v. Rotorcraft Leasing Co., LLC,
No. 01-13-00145-CV, 2015 WL 593310 (Tex.App.-Houston [1st Dist.]
Feb. 12, 2015, no pet.)(mem.op)……………………………..…………23, 24
Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 739 (Tex. 1992)………………………………………………..16
In re D.M.D.,
No. 04-09-00370-CV, 2009 WL 4861171 (Tex.App.-San Antonio
Dec. 16, 2009, no pet.)(mem.op)……………………………………………24
In re W.E.R.,
669 S.W.2d 716 (Tex. 1984)…………………………………………..........16
Int’l Shoe Co. v. Washington,
326 U.S. 310 (1945)………………………………………………………...26
Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199 (Tex. 1985)………………………..…..…………..15, 19, 20
McDonald v. Dankworth,
212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)………………………….17
McKanna v. Edgar,
388 S.W.2d 927 (Tex. 1965)………………………………………………..15
Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777 (Tex. 2005)………………………………….....26, 27, 32, 33
Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569 (Tex. 2007)………………………………………..26, 27, 36
[4]
Nogle & Black Aviation, Inc. v. Favaretto,
290 S.W.3d 277 (Tex.App.-Houston [14th Dist.] 2009, no pet.)…………....32
PHC-Minden, L.P. v. Kimberly-Clark Corp.,
235 S.W.3d 163 (Tex. 2007)………………………………………………..14
Pillai v. Pillai,
No. 07-14-00379-CV, 2015 WL 1221394 (Tex.App.-Amarillo
March 16, 2015, no pet.)(mem.op)……………….……...…29, 30, 31, 33, 34
Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442 (Tex. 1989)…………………………………….………….17
Pool v. Ford Motor Co.,
715 S.W.2d 629 (Tex. 1986)………………………………………………..17
Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333 (Tex. 2009)…………………………………………....33, 34
Ryan v. Abdel-Salam,
39 S.W.3d 332 (Tex.App.-Houston [1st Dist.] 2001, pet. denied)…………..25
Sisters of Incarnate Word, Houston, Tex. v. Gobert,
992 S.W.2d 25 (Tex.App.-San Antonio 1997, no pet.)……………..……….23
Small v. Small,
216 S.W.3d 872 (Tex.App.-Beaumont 2007, pet. denied)……….…….25, 26
Standard Fire Ins. Co. v. Morgan,
745 S.W.2d 310 (Tex. 1987)……………………………………………….16
Turner Schilling, L.L.P. v. Gaunce Mgmt.,
247 S.W.3d 447 (Tex.App.-Dallas 2008, no pet.)……………………....32, 33
U-Anchor Advertising, Inc. v. Burt,
553 S.W.2d 760 (Tex. 1977)……………………………………..….….18, 19
Worford v. Stamper,
801 S.W.2d 108 (Tex. 1990)………………………………………………..16
[5]
Wright v. Sage Engineering, Inc.,
137 S.W.3d 238 (Tex.App.-Houston [1st Dist.] 2004, pet. denied)…….15, 22
Wyatt v. Wyatt,
104 S.W.3d 337 (Tex.App.-Dallas 2003, no pet.) ……………………..…..17
Zac Smith & Co. v. Otis Elevator Co.,
734 S.W.2d 662 (Tex. 1987)………………………………………………..16
Statutes, Rules and Other Authorities
Tex. Civ. Prac. & Rem. Code §§17.041-.045……………………………..……….18
Tex. Civ. Prac. & Rem. Code §17.042…………………………………….….…...18
Tex. Civ. Prac. & Rem. Code §51.014(a)(7)………………………………...….…15
Tex. R. App. P. 9.4(i)…...........................................................................................41
Tex. R. App. P. 28.1(c)…………......…………………………………...............…..7
Tex. R. App. P. 38.1(h)…………......…………………..…..............9, 13, 14, 23, 34
[6]
STATEMENT OF THE CASE
Nature of the case: Plaintiff/Appellee Charles L. Farris (“Farris”) made
numerous loans to Defendant/Appellant Karen E.
Landa (“Landa”) from late 2010 through February,
2011, including a loan of approximately $90,000.00,
which Landa utilized as the down payment on a
purchase of real property in Iowa. After attempting,
unsuccessfully, to obtain repayment of the above-
referenced loans, Farris brought suit against Landa
alleging breach of contract, fraud/fraud in the
inducement, and quantum meruit.
The course of the Landa filed her Special Appearance on December
proceedings below: 22, 2014. The parties conducted discovery limited
to the issues relating to Landa’s Special Appearance,
and the trial court conducted a hearing on Landa’s
Special Appearance on July 2, 2015, during which
the trial court heard and considered the testimony of
both Farris and Landa, as well as the documentary
evidence admitted by the parties.
The trial court’s On July 21, 2015, the trial court entered its Order
disposition of the Denying Special Appearance of Defendant, Karen
case: E. Landa. Landa perfected this appeal by timely
filing her notice of appeal on August 6, 2015. On
August 11, 2015, Landa filed a Motion for
Enlargement of Time Pursuant to Rule 5, and
attendant Request for Findings of Fact and
Conclusions of Law. On August 12, 2015, the trial
court granted Landa’s extension request, and
declined to issue findings of fact and conclusions of
law pursuant to Tex. R. App. P. 28.1(c). Landa
subsequently filed; a Supplemental Request; a
Notice of Past Due Findings of Fact and Conclusions
of Law; and, an Amended Notice Concerning
Findings of Fact and Conclusions of Law. The trial
court did not issue findings of fact and conclusions
of law.
[7]
STATEMENT REGARDING ORAL ARGUMENT
This appeal involves the denial of Appellant Landa’s Special Appearance,
which by its nature turns on the jurisdictional touchstone of ‘purposeful availment’.
Oral argument would assist the Court in analyzing this fact-specific inquiry based
on the realities of the particular dispute.
[8]
ISSUES PRESENTED
Reply to Issue 1: Landa did not preserve any error with respect to whether or not
Farris met his initial burden to bring her under the Texas long-
arm statute. Moreover, Farris’s First Amended Petition contains
sufficient personal jurisdictional allegations to meet that initial
burden.
Reply to Issue 2: Landa has waived this point of error pursuant to Tex. R. App. P.
38.1(h), as it is inadequately briefed. Moreover, there is legally
and factually sufficient evidence in the record to support a
finding by the trial court that it has specific jurisdiction over
Landa.
Reply to Issue 3: Landa has waived this point of error pursuant to Tex. R. App. P.
38.1(h), as it is inadequately briefed. Moreover, there is legally
and factually sufficient evidence in the record to support a
finding by the trial court that it has general jurisdiction over
Landa.
[9]
to Plaintiff's claims in this case, Defendant has and has had long-standing, systematic and continuous
contacts with Texas. Plaintiff has carried his initial burden with respect to his jurisdictional
allegations.
II.
As the plaintiffhas carried his burden with respect to the jurisdictional allegations, the burden
now falls on the defendant challenging this Texas court's personal jurisdiction over her to negate all
jurisdictional bases. BMC Software, 83 S.W.3d at 793, citing Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199, 203 (Tex. 1985). Defendant's bare-bones pleading, containing only conclusory
statements (many of which are demonstrably false), attested to via verification, is insufficient to
accomplish this task. See, Tex. R. Civ. P. 120a(3); Small v. Small, 216 S.W.3d 872, 876-877
(Tex.App.-Beaumont 2007, pet. denied).
"A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First,
the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of
jurisdiction must be consistent with federal and state constitutional guarantees of due process."
Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990), citing Tex. Civ. Prac. & Rem. Code §§s
17.041- 17.069.
The Texas long arm-statute states in pertinent part, "In addition to other acts that may
constitute doing business, a nonresident does business in this ifthe nonresident: (1) contracts by mail
or otherwise with a Texas resident and either party is to perform the contract in whole or in part in
this state; (2) commits a tort in whole or in part in this state ... " Tex. Civ. Prac. & Rem. Code
§17.042. And importantly, " ... section 17.042's broad language extends Texas courts' personal
jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" BMC
[2]
24
containers in Austin, Travis County, Texas, through at least December, 2010, at a
cost of $1,500+ per month. II RR 39-41. During late 2010 and early 2011, while
staying with her mother, Landa continued to look for her own place in Iowa. II RR
41.
It was during late November/December, 2010, that Landa and Farris discussed
Farris providing Landa money for the down payment on a home. Landa testified
that she began discussing with Farris the idea of her trying to find a home in Iowa in
November of 2010, which led to further discussions between the two of them during
a weekend meeting in Dallas, Texas in December, 2010. II RR 46-48 & 50-51.
Farris testified that at the referenced December, 2010, weekend meeting the parties
discussed for the first time Landa seeking money for the down payment on a home
in Iowa, and reached an agreement regarding Farris’s loaning money to Landa for
that prospective down payment on a home. II RR 96-98. Moreover, from December,
2010, through February, 2011, Landa engaged in discussions with Farris regarding
numerous aspects of his provision of the money for the down payment in person, via
e-mail, and via telephone. II RR 65-66. Landa further represented to Farris that part
of their agreement regarding the down payment funds provided by Farris was that
Farris’s name would appear on the deed for the house, but despite Landa’s
representation, Farris’s name was stricken from the deed. II RR 66. Ultimately,
[11]
IV.
Amongst Defendant's attempts to negate the court's jurisdictional bases in this matter is her
sworn statement that, "Defendant does not now engage and has not engaged in business in Texas or
committed any tort, in whole or in part, within the state." Defendant's Special Appearance, -,r 2(b).
Plaintiff's testimony at the hearing on Defendant's Special Appearance will mirror the allegations in
his pleadings in this respect; chiefly, that he and Defendant entered into a loan agreement (in Texas)
whereby he would loan Plaintiff the funds at issue herein, and further, perform his obligations under
said agreement in whole or in part in Texas. Moreover, Defendant's P 1 Amended Responses to
Plaintiff's 1st Set of Discovery Requests also demonstrate the falsity ofDefendant' s above-described
statement. For example, in response to Requests for Admission Nos. 13-17, Defendant admits that;
(i) Karen Landa Insurance is a d/b/a of Defendant; (ii) as recently as 2014, Karen Landa Insurance
was a member of and/or sponsor ofthe Westlake Hills Chamber of Commerce; (iii) from (at least)
January, 2010 through March 13, 2015, Defendant held an active insurance license with the Texas
Department oflnsurance 1 ; and, (iv) within the last ten (1 0) years, Defendant served on the Board of
Directors of Austin Hospice Community Foundation. See First Amended Responses to First Set of
Discovery Requests to Defendant Karen E. Landa, attached hereto and incorporated herein as
Exhibit "A". By Defendant's own admission, and the testimony of Plaintiff, Plaintiff will
demonstrate that Defendant has engaged in business in the State of Texas, including the business at
issue in this matter.
Likewise, Defendant's sworn, conclusory statements that; "Defendant has no substantial
connection with Texas arising from any action or conduct ofDefendant purposefully directed toward
[6]
28
SUMMARY OF THE ARGUMENT
The trial court did not commit any reversible errors in denying Landa’s
Special Appearance. First, Landa’s complaint regarding the sufficiency of Farris’s
jurisdictional allegations for the purposes of the Texas long-arm statute fails as; (i)
Landa did not properly preserve any potential error in this respect; and, (ii) assuming
arguendo that she had properly preserved any such potential error, Farris’s
jurisdictional allegations are clearly sufficient to meet the requirements of the Texas
long-arm statute and ‘notice’ pleading. That is, Landa failed to properly preserve
any potential error on this point, and moreover, the trial court did not commit error
in finding that Farris met the requirements for jurisdictional allegations that would
properly invoke the Texas long-arm statute, thus requiring Landa to negate all bases
for personal jurisdiction.
Second, Landa’s complaint regarding the trial court’s finding of personal
jurisdiction on the basis of specific jurisdiction also fails, as; (i) Landa has waived
this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately briefed;
and, (ii) there was legally and factually sufficient evidence adduced at the hearing
on Landa’s Special Appearance demonstrating the minimum contacts necessary for
such a finding. Accordingly, the trial court did not err to the extent its denial of
Landa’s Special Appearance is based on a finding of specific jurisdiction.
[13]
Finally, Landa’s complaint regarding the trial court’s finding of personal
jurisdiction on the basis of general jurisdiction also fails, as again; (i) Landa has
waived this point of error pursuant to Tex. R. App. P. 38.1(h), as it is inadequately
briefed; and, (ii) there was legally and factually sufficient evidence adduced at the
hearing on Landa’s Special Appearance demonstrating the minimum contacts
necessary for such a finding. Additionally, with respect to this point of error, Landa
overstates the Supreme Court’s recent holding(s) on general jurisdiction in Daimler
AG v. Bauman, and further misassociates the Texas Supreme Court’s holding(s) in
PHC-Minden, L.P. v. Kimberly-Clark Corp., with the notion that the door has been
“all but shut” on general jurisdiction based on a defendant’s contacts with the forum,
when those contacts are not related to the claim. 2 Accordingly, the trial court did
not err to the extent its denial of Landa’s Special Appearance is based on a finding
of general jurisdiction.
In sum, the trial court did not commit any reversible error in denying
Defendant’s Special Appearance.
ARGUMENT AND AUTHORITIES
A. Standard of Review.
“The plaintiff bears the initial burden of pleading sufficient allegations to
2
Daimler AG v. Bauman, 134 S. Ct. 746 (2014); PHC-Minden, L.P. v. Kimberly-Clark Corp., 235
S.W.3d 163 (Tex. 2007).
[14]
bring a nonresident defendant within the provisions of the long-arm statute.” BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002), citing
McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965). In the instant case, the trial
court found, explicitly and implicitly, that plaintiff carried this burden. II RR 31;
CR 31. Once the plaintiff has met this burden, the burden shifts to the defendant
challenging jurisdiction to negate all jurisdictional bases. BMC Software, 83 S.W.3d
at 793, citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985).
In an interlocutory appeal of a trial court’s order denying a special appearance,
the appellate court reviews de novo the question of whether a court has personal
jurisdiction over a defendant, as this is a question of law. Ennis v. Loiseau, 164
S.W.3d 698, 706 (Tex.App.-Austin 2005, no pet.), citing Tex. Civ. Prac. & Rem.
Code §51.014(a)(7); BMC Software, 83 S.W.3d at 794. Notwithstanding this,
“Questions of fact must frequently be resolved by the trial before reaching the
jurisdictional inquiry,” and “While a special appearance is not the appropriate stage
to make a determination on liability, we must consider facts regarding the
defendant’s actions that could foreseeably cause harm in Texas in order to determine
whether the defendant should have anticipated being haled into a Texas court.”
Ennis, 164 S.W.3d at 706, citing BMC Software, 83 S.W.3d at 794; Wright v. Sage
Engineering, Inc., 137 S.W.3d 238, 251 (Tex.App.-Houston [1st Dist.] 2004, pet.
denied).
[15]
47
1 A. When I got to Iowa -- I needed to do
2 something with my belongings, and so I talked to
3 Lee --
4 Q. (BY MR. SCARBOROUGH) The question --
5 A. -- probably November of 2014 -- or 2000 --
6 excuse me. It would have been the day I got there.
7 2010.
8 Q. November of 2014?
9 A. November --
10 Q. Excuse me. We both misspoke.
11 A. I know.
12 Q. Let's go back. It was -- you're saying
13 it's November of '10 --
14 A. Yes, after I got back to Iowa.
15 Q. -- is the first time there was ever any
16 discussion?
17 A. Yes. Yes, sir.
18 Q. Okay. Now, let's talk real briefly about
19 the trip to Dallas. You understand that -- well, let
20 me ask it this way: By this time frame, December of
21 2010, how long had you been divorced from the
22 plaintiff?
23 A. For a number of years.
24 Q. '91?
25 A. Since '91 to current.
48
1 Q. So 19 years?
2 A. Yeah, 19 years plus.
3 Q. Had y'all continued to have a relationship?
4 A. He adopted my first child, and we had
5 another child together. And so even though we've
6 been divorced, we've been in constant contact because
7 of the kids.
8 Q. What conversation did you have with the
9 plaintiff about where you would first meet? Was it
10 Dallas or somewhere else?
11 A. It was brought -- I told Lee I was trying
12 to find a place for me to be able to stay while I was
13 in Iowa, and I was surprised at how reasonable the
14 costs were on houses. I couldn't find a rental
15 house, but I talked to him that I was looking at
16 properties or a place that I could go. And so that
17 would have been in November of 2010.
18 But -- would you repeat the question?
19 I'm not sure what I'm -- I was trying to respond.
20 Q. I was checking on my time, and I'm not even
21 for sure that it was responsive. Let me try to move
22 on. I don't want to take too much time.
23 Yeah, the question I was asking is,
24 did you have a conversation with Mr. Farris about him
25 coming to Iowa to discuss this?
50
1 A. Yes, sir, it was.
2 Q. Did you meet him in Dallas?
3 A. I did.
4 Q. Did you spend a weekend there together?
5 A. I did.
6 Q. Stayed in the same hotel or motel room?
7 A. Yes, sir, we did.
8 Q. From when to when?
9 A. It was the weekend before Christmas. And
10 it was -- he picked me up on a Friday and took me
11 back to the airport at DFW on Sunday morning.
12 Q. At that point in time did you -- had you
13 found the condo that you wanted to buy and ultimately
14 bought in February of '11?
15 A. I had found a number of properties, but
16 there wasn't a specific property that I was trying to
17 focus on.
18 Q. My question that you didn't answer is, had
19 you found the specific one that you bought in
20 February?
21 A. I'd seen it, yes, sir.
22 Q. You'd seen it.
23 A. Yes.
24 Q. Okay. Did you -- so you had a number of
25 properties?
Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.
1991); U-Anchor Adver., 553 S.W.2d at 762.
C. Landa did not preserve any error with respect to whether or not Farris
met his initial burden to bring her under the Texas long-arm statute.
Moreover, Farris’s First Amended Petition contains sufficient personal
jurisdictional allegations to meet that initial burden. (Reply to
Appellant’s Issue 1).
Landa’s proposed first point of error, regarding the sufficiency of Farris’s
jurisdictional allegations, is waived as she did not raise it at the trial court, “In order
to preserve error for appeal, a party must make a timely objection ‘with sufficient
specificity to make the trial court aware of the complaint’ and obtain a ruling on the
record.” Ennis, 164 S.W.3d at 703, citing Tex. R. App. P. 33.1. Further,
“…defective jurisdictional allegations…must be challenged by a motion to quash,
not a special appearance.” Kawasaki Steel, 699 S.W.2d at 203. In Ennis, this Court
examined Kawasaki and determined that in “reading Kawasaki as a whole” a motion
to quash was not required in order to preserve a complaint regarding jurisdictional
allegations. Ennis, 164 S.W.3d at 704-705.
Nevertheless, Ennis does not stand for the proposition that Landa need not
have complained at all about the sufficiency of Farris’s jurisdictional allegations at
the trial court level in order to preserve a point of error related to same. In fact, the
Ennis court noted amongst the complaints in Ennis’s special appearance the
assertion that the plaintiff’s “jurisdictional pleadings were insufficient”. Ennis, 164
[19]
S.W.3d at 702. Moreover, in a case decided by the Texas Supreme Court after
Kawasaki (but predating Ennis) the Court said regarding Kawasaki, “…we did not
hold that a party waives a due process challenge for want of minimum contacts by
challenging the method of service in the special appearance. To the contrary,
although the defendant in Kawasaki had challenged the method of service in its
special appearance, we did not suggest that the defendant had thereby waived its
contest to jurisdiction based on minimum contacts.” GFTA Trendanalysen B.G.A.
Herrdum GMBH & Co., K.G. v. Varme, 991 S.W.2d 785, 786 (Tex. 1999). That is,
to the extent Ennis is a correct interpretation of the Texas Supreme Court’s ultimate
holding in Kawasaki regarding whether or not a motion to quash is required in order
to preserve a point of error related to the sufficiency of a plaintiff’s jurisdictional
allegations, the way to preserve such error is to raise it in the special appearance.
In the instant case, Landa did not raise the issue of a potential defect in Farris’s
jurisdictional allegations in her Special Appearance. CR 9-10. Landa also failed to
articulate a complaint regarding this issue at the hearing on her Special Appearance.
In fact, on this point Landa’s counsel made only the following remarks:
Mr. Scarborough: All right. Your Honor, as Mr. Cronfel and I have
discussed in this case, the burden – initial burden is on him
to plead sufficient facts. The Texas Supreme Court in the
Kelly case in 2010 says, if – and that’s a determination for
the Court. If he has not and we’ve proved that she is – the
defendant is a resident of another state, which she is, in
Iowa, that that’s the end of the case. Now, what I’ve told
Mr. Cronfel is this: I’ve assumed that the Court would
[20]
either find that the pleadings are sufficient, or would carry
that along, and that the burden immediately shifts to the
defendant to prove and negate the facts of the case. So I
want to make a short opening statement before we go any
further.
The Court: Are you okay with that, Mr. Ochoa-Cronfel?
Mr. Ochoa-Cronfel: Yes, ma’am.
The Court: Okay. Go ahead.
--II CR 8-9.
Mr. Ochoa-Cronfel: Your honor, one housekeeping matter: I’m
assuming, because we’re proceeding in this manner,
that the Court is – has taken the position that our
pleadings meet the initial burden?
The Court: Correct.
Mr. Ochoa-Cronfel: Correct. Thank you very much, Your Honor.
The Court: I mean, I think that Mr. Scarborough pretty much granted that.
Mr. Scarborough: Actually, what I said was I assume the Court would either
grant it or carry it along. And as I’ve not heard on the
record a ruling on that, so I’m assuming you’re carrying it.
The Court: Okay. I’ll carry it on. But I’m assuming that you’ve met that.
--II CR 31.
Mr. Scarborough: Since the burden of proof is on me, I get the last word.
--II CR 135.
The foregoing demonstrates that Landa also did not raise a complaint as to the
sufficiency of Farris’s jurisdictional allegations during the hearing on her special
[21]
appearance. In fact, the trial court believed that Landa had conceded that point. As
such, Landa waived any purported error in this regard.
Assuming arguendo that Landa did preserve this point of error, it still fails, as
Farris satisfied his burden of pleading sufficient jurisdictional allegations to subject
Landa to personal jurisdiction. In determining whether Farris met this burden, his
original pleadings, as well as his response to Landa’s Special Appearance can be
considered by the Court. Ennis, 164 S.W.3d, at 705, citing Wright, 137 S.W.3d at
249 n. 7.
As was the case in Ennis, here Farris’s live pleading alleged a number of facts
upon which Landa could be subjected to personal jurisdiction, including, but not
limited to the following:
1. Landa engaged in business and committed torts in the State of Texas;
2. Landa entered into an agreement with a Texas resident, Farris;
3. Landa and Farris both performed on said agreement, in whole or in part,
in Texas;
4. Landa made misrepresentations to Farris in Texas, in order to induce
Farris’s performance;
5. Landa communicated via telephone, text, e-mail, regular mail, and in-
person with a Texas resident, Farris, regarding said agreement;
6. Landa profited from her involvement with Farris, to his detriment;
7. Landa resided and worked in Austin for the better part of the last
twenty-plus years, up to and including parts of 2013-2014; and,
8. Landa maintained an active insurance license with the Texas
Department of Insurance from April, 1987 through April, 2015,
including owning and operating her own insurance agency in Austin as
recently as 2014.
--CR 15-22, Plaintiff’s First Amended Original Petition.
[22]
Additionally, Farris also filed a response to Landa’s Special Appearance which
further detailed why the court had personal jurisdiction over Landa. CR 23-30.
Therefore, Farris satisfied his initial burden of pleading a sufficient basis upon
which to subject Landa to personal jurisdiction, and the burden then shifted to Landa
to negate all bases for personal jurisdiction. Thus, the trial court did not commit
error in this regard.
D. Landa has waived this point of error pursuant to Tex. R. App. P. 38.1(h),
as it is inadequately briefed. Moreover, there is sufficient evidence in the
record to support a finding by the trial court that it has specific
jurisdiction over Landa. (Reply to Appellant’s Issue 2).
Initially, with respect to her second point of error, Landa has failed to
adequately brief same as required by Tex. R. App. P. 38.1(h), and thus, has waived
this point of error. “A party asserting error on appeal bears the burden of showing
that the record supports the contention raised, and of specifying the place in the
record where matters upon which she relies or of which she complains are shown.
Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886-87 (Tex.App.-
Houston [1st Dist.] 1995, no writ); Tex. R. App. P. 38.1(h). Where this burden is not
carried, the party waives the point of error. Happy Harbor, 903 S.W.2d at 886-87.”
Sisters of Charity of Incarnate Word, Houston, Tex. v. Gobert, 992 S.W.2d 25, 31
(Tex.App.-San Antonio 1997, no pet.), disapproved of on other grounds by
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005); see also,
Helitrans Company v. Rotorcraft Leasing Co., LLC, No. 01-13-00145-CV, 2015 WL
[23]
593310, at *3 (Tex.App.-Houston [1st Dist.] Feb. 12, 2015, no pet.) (mem.op.); In re
D.M.D., No. 04-09-00370-CV, 2009 WL 4861171, at *2 (Tex.App.-San Antonio
Dec. 16, 2009, no pet.) (mem.op.).
As alluded to in Section A, above, Landa has failed to cite to or analyze any
of the evidence considered by the trial court that would tend to support its implied
findings of fact on this jurisdictional question. In fact, in her discussion on this point
of error Landa provides only three (3) citations to the reporter’s record which
ostensibly support her desired interpretation of the evidence, as opposed to
addressing how the evidence fails to support the trial court’s implied findings. Two
of those citations are to her own testimony and one is to Farris’s, and even those
scant citations to the record are mischaracterized. That is:
1. Landa cites Farris’s testimony at II RR 116 in support of the propositions that
no contract was entered into by the parties in Dallas because, “…the Parties
did not know the amount, the house, or even if a house would be purchased.”
In fact, Farris’s testimony at that citation was only that the parties’ meeting in
Dallas involved discussions regarding an agreement for him to provide Landa
money for her closing on a house in Iowa.
2. Landa cites her own testimony at II RR 52 in support of the propositions that,
“…Landa was in Iowa when: (1) she chose the house that would be purchased;
(2) decided how much money would be needed; and (3) all negotiations with
the lender took place.” However, to the extent Farris was involved at all in
negotiations with an additional lender in Iowa, Landa’s own testimony in this
regard is that such discussions took place, for Mr. Farris’s part, in Austin. See
also II RR 65-66.
3. Landa cites her own testimony at II RR 30 in support of the proposition that,
“…the transaction was closed in Iowa.” But this misses the point entirely, as
the transaction she is referring to is her closing on the house in Iowa. The
[24]
92
1 I was going to ask one or two
2 questions, and I'm going to be done.
3 THE COURT: Okay. Overruled.
4 What number do you have?
5 MR. OCHOA-CRONFEL: No. 4, Your Honor.
6 THE COURT: 4 will be admitted.
7 (Plaintiff's Exhibit No. 4 admitted.)
8 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, do you
9 recognize all four checks that are comprised of
10 Deposition [sic] Exhibit No. 4?
11 A. Yes, sir.
12 Q. Okay. And these checks were checks from my
13 client -- of monies from my client to you. Correct?
14 A. Yes, sir.
15 Q. Okay. And in the memo part, what does it
16 say in each one of these checks?
17 A. Loan.
18 Q. Okay. All right.
19 One last question; Ms. Landa, it is --
20 is it unreasonable to believe that Mr. Farris, who
21 provided you approximately $90,000 for the down
22 payment on the house, didn't expect to get that paid
23 back --
24 MR. SCARBOROUGH: Objection;
25 relevance. What his expectations were has nothing to
97
1 A. She was in Iowa at the time, and she was
2 taking care of her mom. She was living in her mom's
3 house, and she did not want to stay there. She was
4 having a difficult time living with her mom.
5 She had talked -- we had talked. We
6 continually were talking about things, but she wanted
7 to get her own place. And this is when she
8 approached me as far as the meeting in Dallas, wanted
9 to hook up and let's talk about things.
10 Q. Okay. When did this meeting in Dallas
11 occur?
12 A. December 17th, 2010.
13 Q. 2010. And was -- was it at that meeting in
14 Dallas that you understood for the first time that
15 she was seeking money for a down payment on this
16 house?
17 A. That's -- that's when we talked about --
18 yes.
19 Q. Okay. And did you reach an agreement with
20 Ms. Landa with regard to her request for this money?
21 A. We did. We did.
22 Q. Can you tell the Court what the terms of
23 that agreement were?
24 A. The agreement was that I would provide the
25 down payment. There was no specific property, but
98
1 she was looking at property. And I would provide the
2 down payment as long as I was on the deed. It was
3 going to be a loan, to be paid back, as long as I was
4 on the deed.
5 Q. Okay. And how were you going to get paid
6 back?
7 A. She promised me she would pay me back on
8 the death of her mom because she had a 150,000-dollar
9 life insurance policy on her mom.
10 Q. Okay. And I think you testified that
11 around that time her mom was ill when she visited
12 with you in Dallas?
13 A. That is correct.
14 Q. Okay. All right. So did you agree to loan
15 her that money?
16 A. At that point in time we agreed on the
17 conditions of it, yes.
18 Q. Did you know how much the money -- how
19 much -- what the amount the money was going to be at
20 that time?
21 A. At that time, no.
22 Q. Okay. Why is that?
23 A. I don't think she had found a specific
24 piece of property that she was going to purchase.
25 Q. Okay. So when you left -- when you-all
The following evidence adduced at the hearing on Landa’s Special
Appearance, while not necessarily an exhaustive list, supports the trial court’s
finding that it has specific jurisdiction over Landa:
1. Both Landa and Farris testified that they met in Dallas in December, 2010,
and there discussed (amongst other things) Farris’s provision of funds to
Landa for the purchase of a home. II RR 50-51 & 64-65 (Landa); II RR 97-
99 (Farris).
2. Farris testified that it was at this meeting in Dallas that he learned for the first
time that Landa was seeking money for a down payment on a house. II RR
97.
3. Both Landa and Farris testified that part of the agreement arising from the
meeting in Dallas were representations by Landa that the agreement would
include Farris’s name being on the deed for the home that Landa would
purchase utilizing the funds provided by Farris. II RR 66 (Landa); II RR 97-
98 (Farris).
4. Both Landa and Farris testified that they engaged in additional
communications (aside from the meeting in Dallas), via e-mail and telephone,
between the December meeting and February, 2011, to discuss Farris’s
provision of funds to Landa for the purchase of a home. II RR 65-66 (Landa);
II RR 99-101 (Farris).
5. Both Landa and Farris testified that Farris performed, wiring funds from his
bank accounts in Austin to a joint bank account in Iowa, to effect the above-
referenced provision of funds to Landa. II RR 67-68 (Landa); II RR 101-103
(Farris); III RR 18-19, Plaintiff’s Exh. 6; III RR 20-24, Plaintiff’s Exh. 7.
6. Both Landa and Farris testified that, despite Landa’s above-referenced
representations regarding the deed, and Farris’s performance in accordance
with the agreement, Farris’s name was ultimately stricken from the deed at
closing. II RR 66 (Landa); II RR 104-106 (Farris).
7. Both Landa and Farris testified that they engaged in constant communication
regarding the transaction after February, 2011 (and indeed, over the course of
the next 3+ years) via e-mail, telephone, text, regular mail, and/or in-person
[28]
communications in Austin. II RR 68-71, 73-76 & 78-79 (Landa); II RR 103-
114 (Farris); III RR 6-8, Plaintiff’s Exh. 1; III RR 9-10, Plaintiff’s Exh. 2; III
RR 25-204, Plaintiff’s Exh. 8; III RR 205-206, Plaintiff’s Exh. 9.
8. Both Landa and Farris testified that in May, 2012, on a visit to Austin, Landa
gave Farris a check in the amount of $15,000.00. II RR 57-58 & 69 (Landa);
II RR 107-108 (Farris); III RR 205-206, Plaintiff’s Exh. 9.
9. Landa testified that throughout all of the contacts that she had with Farris
regarding the transaction, be they in person, by phone, by text, by e-mail,
and/or by regular mail, Farris lived in Austin, Texas, and she was aware that
she was obtaining funds from a resident of Texas. II RR 65-66.
The record is replete with evidence that suggests, for the purposes of this special
appearance, that Landa took actions that constituted her ‘doing business’ in Texas –
such as entering into an agreement with and engaging in frequent communications
with Farris, a Texas resident, regarding his provision of funds to her for the purpose
of purchasing a home, and traveling to Texas to facilitate those dealings with Farris.
Moreover, the evidence also suggests, for purposes of this special appearance, that
Landa made misrepresentations to Farris, in Texas, for the purpose of
inducing/facilitating Farris’s performance in accordance with that agreement. Thus,
there is ample evidence from which the trial court could reasonably have found it
has specific jurisdiction over Landa in the instant case.
The memorandum opinion from the Amarillo Court of Appeals that Landa
relies on, Pillai v. Pillai, is easily distinguishable from the instant case on a number
of factual bases. Pillai v. Pillai, 07-14-00379-CV, 2015 WL 1221394 (Tex.App.-
Amarillo March 16, 2015, no pet.) (mem.op.). First, the record in Pillai failed to
[29]
disclose which party first broached the subject of a loan or the location of the parties
when the subject was broached. Pillai, 2015 WL 1221394 at *1. In fact, in Pillai
the plaintiff actually traveled to Canada regarding the parties’ transaction. Here, that
is not the case, as the record indicates that the subject of Farris loaning Landa the
money at issue was first broached by Landa, was broached by Landa while both
parties were in Texas, and moreover, at no point in the parties’ ongoing contacts
regarding the transaction was Farris not located in Texas. II RR 50-51 & 64-66
(Landa); II RR 97-99 (Farris). Second, while the record in Pillai disclosed that the
defendant traveled to Texas from Canada on multiple occasions, nothing in the
record indicated that anything the defendant did on those in-person visits related to
the loan transaction. Pillai, 2015 WL 1221394 at *1. Here, that is not the case, as
the record indicates that on multiple trips to Austin, and during times when Landa
was again residing in Austin, Landa and Farris negotiated and/or discussed the
transaction, and/or performed (in whole or in part) in accordance with their
agreement. II RR 50-51, 57-58, 64-67 & 69 (Landa); II RR 97-99 & 107-108
(Farris); III RR 205-206, Plaintiff’s Exh. 9. Third, while additional written
communications appeared in the record in Pillai, all save one failed to indicate where
the parties were when those communications were sent or received. Pillai, 2015 WL
1221394 at *1. Here, that is not the case, as the record indicates that at all times,
Landa was aware she was communicating with Farris, a Texas resident, with regard
[30]
110
1 Q. And you would be paid back from what?
2 A. The loan of the money --
3 Q. Okay.
4 A. -- on the house.
5 Q. All right. Now, here we are, May of 2012,
6 you get a check. You have communications with her
7 afterwards. Ms. Landa comes -- and she previously
8 testified that she came to visit in 2013?
9 A. That is true.
10 Q. Okay. And did you see her when she came to
11 visit in 2013?
12 A. I did.
13 Q. Okay. Did you-all talk about the loan in
14 2013?
15 A. Yes.
16 Q. Okay.
17 A. We did.
18 Q. Okay. Were you still asking to be paid
19 back?
20 A. Yes.
21 Q. Okay. And when she left to go back to Iowa
22 after that week visit in 2013, did you -- did you
23 have any communications with her?
24 A. Yes.
25 Q. Okay. And what -- what did those
282-83. The Citrin Court went on to say, “Here…the circumstances involve
multiple Texas contacts over many months in the course of an ongoing relationship
that ‘was not unilaterally initiated by the Texas resident.’ See Nogle & Black
Aviation, Inc. v. Favaretto, 290 S.W.3d 277, 283 (Tex.App.-Houston [14th Dist.]
2009, no pet.); cf. Michiana Easy Livin’ 168 S.W.3d at 784. These circumstances
demonstrate Citrin’s purposeful contact with Texas along with an intent to obtain
benefits from those contacts, and they defeat any suggestion that Citrin’s business-
related presence in Texas was merely ‘random, isolated, or fortuitous.’” Citrin
Holdings, LLC, 305 S.W.3d at 283. As detailed at length above, the evidence in the
instant case is similar to that described by the Citrin Court. These factual similarities
serve to illustrate why, as in Citrin, the trial court’s exercise of specific jurisdiction
in the instant case is proper.
Landa also misfocuses part of her argument on the fact that the parties’
agreement in the instant case called for (at least in part) performance by Farris in
Texas. Landa cites to an opinion from the Dallas Court of Appeals for her
proposition that, “…it does not matter that Farris was to conduct his obligations in
the state.” Appellant’s Brief, at 12, citing Turner Schilling, L.L.P. v. Gaunce Mgmt.,
247 S.W.3d 447, 456 (Tex.App.-Dallas 2008, no pet.). While Landa correctly
(albeit, incompletely) quotes Turner Schilling in this respect - “the plaintiff’s
performance of part of its contract duties in Texas is not a purposeful contact of the
[32]
defendant with Texas,” the conclusion she draws from this statement fails to
acknowledge the broader jurisdictional issue. Rather, it is the unilateral activity of
another party or third person that is not relevant to the jurisdictional inquiry. Turner
Schilling, 247 S.W.3d at 451-52, citing Michiana Easy Livin’, 168 S.W.3d at 785;
see also, Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 339
(Tex. 2009). When the contacts with Texas formed by the nonresident defendant
create a contractual relationship between her and the resident plaintiff whereby the
plaintiff performs pursuant to the contract, in whole or in part, in Texas, than the
analysis of those contacts and their effect (i.e., the plaintiff’s performance in Texas)
is certainly relevant to the minimum contact analysis. See Retamco Operating, Inc.,
278 S.W.3d at 340; Citrin Holdings, LLC, 305 S.W.3d at 281. If this were not the
case, the Texas long-arm statute itself would be rather precariously placed vis-à-vis
constitutional requirements given its definition of ‘doing business’.
Finally, one of Landa’s more curious arguments with respect to specific
jurisdiction centers on whether or not the parties actually made an agreement in
Dallas. That is, her contention is that the parties never reached an agreement while
Landa was physically in Texas, because they didn’t have a meeting of the minds in
Texas. This despite the fact that in her own testimony Landa refers to the parties’
agreement, and calls it a loan. II RR 66, 69. Nevertheless, Landa’s own “exemplar”
case, Pillai tells us that, “…it is not necessary for the non-resident to appear on Texas
[33]
126
1 $82,000; isn't there?
2 A. I see that now.
3 Q. Okay.
4 MR. OCHOA-CRONFEL: Your Honor, I'm
5 going to object again. We're getting to the merits
6 of the issue for which Mr. Scarborough was objecting
7 all afternoon -- been objecting all morning.
8 THE COURT: Why is this relevant,
9 Mr. Scarborough?
10 MR. SCARBOROUGH: Because it -- it
11 goes to the same argument I'd say for him; what's
12 good for the goose and is good for the gander.
13 THE COURT: Overruled.
14 MR. SCARBOROUGH: We'll offer those
15 two exhibits, 5 and 6 into evidence.
16 A. That was hidden from me. I never saw it.
17 MR. SCARBOROUGH: Objection;
18 nonresponsive.
19 THE COURT: Do we have 5 and 6?
20 THE REPORTER: No.
21 THE COURT: 5 and 6?
22 MR. POTTER: Yes, ma'am.
23 MR. SCARBOROUGH: We will -- we
24 will --
25 THE COURT: I cannot introduce them
court’s implied findings. Those are citations to her own testimony and exhibits, and
even those scant citations to the record are mischaracterized. That is:
1. Landa cites her own testimony at II RR 80 in support of the proposition that
she has lived and worked in Iowa for the past five years, except for a short
period of time she spent in Travis County trying to reconnect to her son. In
fact, Landa actually testified that during the last five years she has spent time
living and/or working in Texas, Iowa, Michigan, and New York, including
eight months or so that she again resided in Texas. II RR 37-42.
2. Landa’s other record citation is to her testimony and exhibits (II RR 62-63;
III RR 207-271, Defendant’s Exhs.1-4) regarding her filing state income tax
returns in Iowa. Of course, whether or not Landa filed state income tax returns
in a state other than Texas (or 2 states, or 10 states, or 20 states other than
Texas) demonstrates little to nothing with respect to the contacts she has or
doesn’t have with Texas.
Landa’s only other record citation with respect to this point of error is again to
Plaintiff’s First Amended Original Petition, at CR 16, where she quotes that pleading
(correctly) as stating, “The Court has jurisdiction over Defendant as a result of her
continuous and systematic contacts, both personal and professional, with Austin,
Travis County, Texas, for well over twenty (20) years, up to and including the time
this suit was filed.” Appellant’s Brief at 18. About this quote Landa says in her
brief, “This is not a true statement,” and supports her assertion with only the above-
referenced citations. When questioned on cross-examination at the hearing on her
special appearance Landa said the following:
Q: Now, Ms. Landa, you lived and worked in Austin, Texas, for the better
part of the last 20 years. Correct?
A: Yes, sir.
[35]
--II RR 79-80.
Once again, the remainder of Landa’s discussion on this point of error is
limited to a discussion of various authorities she believes apply to the instant case
on the basis of conclusory statements of “fact” regarding her ongoing and systematic
contacts with Texas (or lack thereof), without citations to support for same in the
record. In short, as with her second point of error, the foregoing demonstrates that
Landa has waived any purported error related to her third point of error, as she has
inadequately briefed same.
Assuming arguendo that Landa has not waived this point of error as discussed
above, her challenge on this point still fails. “If the defendant has made continuous
and systematic contacts with the forum, general jurisdiction is established whether
or not the defendant’s alleged liability arises from those contacts. Moki Mac, 221
S.W.3d at 575, citing BMC Software, 83 S.W.3d at 795-96; CSR Ltd., 925 S.W.2d
at 595.
The following evidence adduced at the hearing on Landa’s Special
Appearance supports the trial court’s finding that it has general jurisdiction over
Landa:
1. While Landa admitted that she had lived and worked in Austin for the better
part of the last twenty years on cross-examination, she went even further back
on direct examination, acknowledging that she had lived and worked in Austin
at least as far back as the mid ‘80s. II RR 33-35.
[36]
PLAINTIFF'S EXHIBIT NO. 9
~------------- ----
CONCLUSION
As the foregoing demonstrates, if ‘purposeful availment’ be the test, then there
is little doubt that Landa purposefully availed herself of the benefits, privileges, and
obligations of doing business in Texas with a Texas resident. Landa’s contacts with
Farris in Texas – be they in person, by phone, by text, by e-mail, and/or by regular
mail – were anything but random, isolated, or fortuitous. Landa made those contacts,
and cultivated those contacts, for the purpose of creating a relationship with Farris
whereby he would loan her significant funds for the purchase of a home. Certainly,
Farris took no unilateral actions to create said relationship or the contacts that Landa
made with the forum. The benefit to Landa was clear, and ultimately, equally so the
detriment to Farris.
Moreover, this is not the rare case in which the exercise of personal
jurisdiction does not comport with fair play and substantial justice once the
nonresident defendant has purposefully availed herself of the privilege of conducting
business in the forum. In fact, Landa has never asserted, either in her Special
Appearance, or at the hearing thereon, that being haled into Texas to respond to the
underlying lawsuit would cause any undue burden on her. In sum, the trial court
was correct in finding that it has personal jurisdiction over Landa with respect to this
matter, and there is no reason, compelling or otherwise, to disturb the trial court’s
finding in this respect.
[38]
PRAYER
Appellee requests that the Court of Appeals reject the issues raised by
Appellant on appeal and affirm the trial court’s Order Denying Special Appearance
of Defendant, Karen E. Landa, as; (i) Appellant’s first point of error was waived for
failure to properly preserve same; (ii) Appellant’s first point of error fails as Farris’s
jurisdictional allegations were sufficient to shift the burden to Landa to negate all
bases for personal jurisdiction; (iii) Appellant’s second point of error was waived
for failure to adequately brief same; (iv) Appellant’s second point of error fails as
the record demonstrates both factually sufficient and legally sufficient bases for the
trial court’s finding of specific jurisdiction; (v) Appellant’s third point of error was
waived for failure to adequately brief same; and, (vi) Appellant’s third point of error
fails as the record demonstrates both factually sufficient and legally sufficient bases
for the trial court’s finding of general jurisdiction. Thus, Appellant has failed to
demonstrate any reversible error by the trial court in denying Landa’s Special
Appearance. Appellee further requests such other and further relief to which he may
show himself justly entitled.
[39]
Respectfully submitted,
/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel
Texas Bar No. 15175600
The Cronfel Firm
2700 Bee Caves Road, Suite 103
Austin, Texas 78746
Telephone: (512) 347-9600
Facsimile: (512) 347-9911
Guillermo@thecronfelfirm.com
Counsel for Appellee,
Charles L. Farris
[40]
Certificate of Compliance
I certify that on November 10, 2015, this Appellee’s Brief was produced on a
computer and contains 7,869 words, excluding the caption, statement regarding oral
argument, table of contents, index of authorities, statement of the case, and statement
of the issues presented, and thus does not exceed the 15,000 word limit provided for
by Tex. R. App. P. 9.4(i).
/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel
Certificate of Filing and Service
I certify that on November 10, 2015, I used the Court’s electronic case filing
system to file this Appellee’s Brief and to serve this document on the counsel for
Appellant:
Mr. Terry L. Scarborough
Texas Bar No. 17716000
Ms. V. Blayre Pena
Texas Bar No. 24050372
Hance Scarborough, LLP
400 W. 15th Street, Suite 950
Austin, Texas 78701
Telephone: (512) 479-8888
Facsimile: (512) 482-6891
tscarborough@hslawmail.com
bpena@hslawmail.com
/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel
[41]
APPENDIX
Tab
1) Special Appearance of Defendant, Karen E. Landa dated December 22, 2014
(CR 9-12).
2) Plaintiff’s First Amended Original Petition dated June 24, 2015 (CR 15-22).
3) Plaintiff’s Response to Defendant’s Special Appearance dated July 1, 2015
(CR 23-30).
4) Tex. Civ. Prac. & Rem. Code §17.042.
5) Tex. R. App. P. 38.1(h)
6) Hearing Testimony of Karen E. Landa (II RR 32-94).
7) Hearing Testimony of Charles L. Farris (II RR 94-130).
8) Plaintiff’s Hearing Exhibit #1 (III RR 6-8).
9) Plaintiff’s Hearing Exhibit #6 (III RR 18-19).
10) Plaintiff’s Hearing Exhibit #7 (III RR 20-24).
11) Plaintiff’s Hearing Exhibit #9 (III RR 205-206).
[42]
12/22/2014 9:04:34 AM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
D-1-GN-14-004669
CAUSE NO. D-1-GN-14-004669
CHARLES L. FARRIS § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
vs. § TRAVIS COUNTY, TEXAS
§
KAREN E. LANDA, §
§
Defendant. § 98TH JUDICIAL DISTRICT
SPECIAL APPEARANCE OF DEFENDANT KAREN E. LANDA
Defendant, Karen E. Landa, in the above cause, makes this Special Appearance, pursuant
to Rule 120a of the Texas Rules of Civil Procedure, for the purpose of objecting to the jurisdiction
of the Court over Defendant Karen E. Landa, and as grounds will show the Court the following.
SPECIAL APPEARANCE
1. This special appearance is made as to the entire proceeding and is made before any motion
to transfer or any other plea, pleading, or motion filed by Defendant.
2. This court does not have jurisdiction over Defendant because Defendant is not amenable
to process issued by the courts of Texas because:
a. Defendant is not a resident of Texas and is not required to maintain and does not
maintain a registered agent for service in Texas.
b. Defendant does not now engage and has not engaged in business in Texas or
committed any tort, in whole or in part, within the state.
c. Defendant does not maintain a place of business in Texas and has no employees,
servants, or agents within the state.
d. Defendant has no substantial connection with Texas arising from any action or
conduct of Defendant purposefully directed toward Texas.
9
e. Plaintiffs claims do not arise from and are not related to any activity conducted by
Defendant in Texas.
f. Defendant has no continuing and systematic contacts with Texas.
3. The assumption of jurisdiction by the court over Defendant would offend traditional
notions of fair play and substantial justice, depriving Defendant of due process as guaranteed by
the Constitution of the United States.
PRAYER
For these reasons, Defendant requests that the court set this motion for hearing on notice
to Plaintiff, and that after hearing, the court grant this motion and dismiss the entire proceeding as
to Defendant for want of jurisdiction.
Respectfully submitted,
H ANCE SCARBOROUGH., LLP
450 W 151h Street, Suite 950
Austin, Texas 78701
Telephone: 512A79.8888
Facsimile: 512.482.6891
By: r -.[;(jL '-t``tU.t~
Terry L. carborough
State Bar No. 17716000
tscaro borough@hslawmail.com
V. Blayre Pefia
State Bar No. 24050372
bpena@hslawmail.com
10
- I
VERIFI CATIOJioi
STATE OF IOWA §
§
coUNTYoFD~n~ s §
BEFORE ME, the undersigned authority. on this day app~ared Karen E. Landa, who,
being first duly swoml stated under oath that she is the Defendant in Utis case. She has read the
above and foregoi ng Special Appearance and that the fac tual statements contained in paragraph 2
are within her personal knowledge and true and correct
``~ ,flv~L_
Karen E'. Landa
SVBSCRffiED AND SWORN TO BEFORE ME on this z_o4h day of December,
2014.
1-\1\/ii'II~Url l>lllJii I
COMMISSION NUMBER 753933 otary Public b1 and for
MY COMMISSi r EXPj8ES The State of Iow1:1
jl'28 '20 ] ,
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document h~s been
forwarded to all counsel and parties of record as set forth below on this the``- day of
December, 2014, to wit:
VIA FACS.ll\ULE
Guillermo Ochoa-cronfel
THE CRONFEL FIRM
2700 Bee Cave road, Suite 103
Austin, Texas 78746
512-347-9600
512-347-9911 fax
borough
12
6/24/2015 4:24:42 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-14-004669 D-1-GN-14-004669
CHARLES L. FARRIS, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
KAREN E. LANDA, §
Defendant § 98th JUDICIAL DISTRICT
PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, CHARLES L. FARRIS, (hereinafter referred to as "Plaintiff' or
"Farris") complaining of KAREN E. LANDA, (hereinafter referred to as "Defendant" or "Landa")
and files his, First Amended Original Petition in this matter, and for causes of action respectfully
shows the Court as follows:
I.
PARTIES
1. Plaintiff is a resident of Austin, Travis County, Texas.
2. Defendant, is a resident of the State oflowa who has resided in Austin, Travis County, Texas,
and has conducted business with Plaintiff in Austin, Travis County, Texas. Defendant has already
been served in accordance with Tex. R. Civ. P. 108.
II.
DISCOVERY LEVEL
3. Plaintiff intends to conduct discovery under Level III of the discovery control plan, pursuant
to Texas Rule of Civil Procedure 190.4.
III.
JURISDICTIONNENUE
4. The Court has jurisdiction over Defendant, pursuant to Tex. Civ. Prac. & Rem. Code 17.041,
15
et. seq., because Defendant conducted business with Plaintiff in Austin, Travis County, Texas.
Plaintiff and Defendant entered into an agreement whereby Plaintiff would loan Defendant money
towards the purchase of a house, and Plaintiff was to perform his obligations under the agreement
between Plaintiff and Defendant, in whole or in part in this state. Moreover, the Court has
jurisdiction over Defendant as a result ofher continuous and systematic contacts, both personal and
professional, with Austin, Travis County, Texas, for well over twenty (20) years, up to and including
the time this suit was filed.
5. The Court has jurisdiction over the controversy because the damages are within the
jurisdictional limits of the Court. Plaintiff seeks monetary relief over $100,000 but not more than
$200,000, as well as costs of court and expenses, pre-judgment and post-judgment interest, and
attorney's fees.
6. Travis County is a proper venue for this action under§ 15.002 of the Tex. Civ. Prac. §Rem.
Code, as a substantial part of the events or omissions giving rise to the claim occurred in Travis
County, Texas.
IV.
FACTS
7. Beginning in the summer of2010 and going through (at least) February of2011, Plaintiff
made numerous loans to Defendant. The total amount of money loaned by Plaintiff to Defendant in
these transactions, and currently remaining un-repaid, is at least $95,434.86.
8. In December, 2010, Plaintiff and Defendant met for a weekend in Dallas, Texas. During that
time, Plaintiff and Defendant discussed trying to find a house in Iowa to purchase. The parties
reached an agreement whereby Plaintiff would make the required down payment on the house, as a
[2]
16
loan to Defendant, that Defendant would repay said loan, and that both parties' names would be on
the deed to the house.
9. In February, 2011, Plaintiff loaned Defendant approximately $90,000.00, by wiring said
monies from his bank in Austin to a joint account the parties held at a financial institution in Iowa,
which was to be used in the purchase of real property (a home) located at 7685 Escalade Court, West
Des Moines, Dallas County, Iowa 50266 (the "Property"). This loan was the culmination of the
above-referenced agreement between Plaintiff and Defendant that had taken place in December,
2010, in which Defendant sought out and requested the loan from Plaintiff specifically for the
purpose of purchasing the Property. The agreement between the parties on this matter contemplated
Plaintiffliquidating a CD which he had on deposit with his financial institution in Austin, in order to
obtain the funds to loan Defendant (the "Loan Funds"), and then sending the Loan Funds from his
financial institution in Austin, both actions which Plaintiff undertook in Austin.
10. The above-referenced arrangement between Plaintiff and Defendant also required Plaintiff to
engage in correspondence amongst Plaintiff, Defendant, and the financial institution in Iowa,
regarding the larger mortgage loan towards the purchase of the Property. This correspondence
included Plaintiff forwarding financial information and documentation from Austin to the Iowa
financial institution, ostensibly as a "co-borrower" on the mortgage loan related to the Property.
11. The Loan Funds, once forwarded from Plaintiff, in Austin, to a joint account of Plaintiff and
Defendant at a financial institution in Iowa, were to serve as the entire amount of cash required at
closing on the Property from the "borrower" in satisfaction of the mortgage agreement.
12. As part of the inducement for the above-referenced loan, and as alluded to above, Defendant
represented to Plaintiff that he would be included as a grantee on the warranty deed related to the
[3]
17
Property, as joint tenant with full rights of survivorship. In this way, Plaintiff would have some
interest in the Property to serve essentially as security for the loan. Defendant further represented to
Plaintiff that she would pay back the loan.
13. Moreover, Plaintiff relied on Defendant's long-standing, continuous, and systematic contacts
with Austin, Travis County, Texas, in agreeing to the above-referenced loan; (i) Defendant lived in
Austin for the better part of over the last twenty-plus (20+) years, up to and including 2014; (ii)
Plaintiff and Defendant were married and resided together in Austin for approximately seven (7)
years; (iii) Defendant maintained an active insurance license with the Texas Department oflnsurance
from April, 1987 through April, 2015, and in fact did business as an insurance agent for many of
those years in Austin and neighboring areas, including operating her own insurance agency, Karen
Landa Insurance, as recently as 20 14; (iv) Defendant was registered with the Texas Securities Board
as an Investment Adviser Representative from 2005-2008, working with multiple financial services
companies in Austin; (v) Defendant owned and/or operated Tribeza Magazine in Austin, Travis
County, Texas, in 2009-2010; and, (vi) over the course of her many years of residence and
professional life in Austin, Defendant contributed to and/or volunteered with a number of non-profit
groups in Austin, including, but not limited to Hospice Austin Fund and the Texas Governor's
Mansion.
14. Notwithstanding the agreement between the parties and her representations to Plaintiff (and
unbeknownst to Plaintiff at the time), once Plaintiff forwarded the Loan Funds from Austin to Iowa,
Defendant unilaterally removed Plaintiff from involvement in the mortgage loan, and then
unilaterally struck Plaintiff's name from the warranty deed when it was executed, and same was filed
of record in the real property records of Dallas County, Iowa, with Plaintiff's name crossed out as a
[4]
18
grantee.
15. Over the next three years, Plaintiff made numerous efforts to engage Defendant on these
matters, seeking to arrange for payment plans, or make some other kind of arrangements with
Defendant to address the outstanding amounts due, to little avail. Defendant came to Austin in May,
2012, and made a payment in the amount of$15,000.00 to Plaintiff, but no additional payments were
forthcoming.
16. On August 23, 2014, Plaintiff made written demand for payment of the above-referenced
debts on Defendant. Despite having received same, Defendant continues to make no efforts to repay
the amounts due or to make arrangements for the repayment of same.
v.
First Cause of Action (Breach of Contract)
17. Paragraphs 1 through 16, above, are incorporated herein by reference.
18. Defendant's above-described actions constitute Breaches of Contract with respect to the loans
made by Plaintiff to Defendant.
VI.
Second Cause of Action (Fraud and/or Fraud in the Inducement)
19. Paragraphs 1 through 16, above, are incorporated herein by reference.
20. Defendant's above-described actions support Plaintiff's claim for Fraud and/or Fraud in the
Inducement with respect to, at least, the approximately $90,000 that Plaintiff loaned Defendant
specifically for the purpose of purchasing the Property.
VII.
Third Cause of Action (Quantum Meruit)
21. Paragraphs 1 through 16, above, are incorporated herein by reference.
[5]
19
22. Alternatively, Defendant's above-described actions also support Plaintiff's Quantum Meruit
claim as Plaintiff provided loans to Defendant, Defendant accepted the benefit of said loans, and
Defendant had reasonable notice that Plaintiff expected that those loans would be repaid.
VIII.
Exemplary Damages
23. Paragraphs 1 through 20, above, are incorporated herein by reference.
24. Plaintiff intends to seek exemplary damages against Defendant, with respect to his cause of
action for Fraud and/or Fraud in the Inducement.
IX.
REMEDIES SOUGHT
25. The damages sought by the Plaintiff in this cause are within the jurisdictional limits of the
court.
26. Plaintiff seeks actual damages and exemplary damages totaling over $100,000 but not more
than $200,000, as well as costs of court and expenses, pre-judgment and post-judgment interest, and
attorney's fees.
X.
Attorney's Fees
27. Paragraphs 1 through 26, above, are incorporated herein by reference.
28. Plaintiff is entitled to his attorney's fees incurred in pursuit of this cause pursuant to (at least)
Tex. Civ. Prac. & Rem. Code §38.001, et. seq.
XI.
CONDITIONS PRECEDENT
29. All conditions precedent to bringing this suit and the relief sought herein have occurred or
have been taken.
[6]
20
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited in the
manner and for the length of time required by law to appear and answer this Petition, and that upon
final hearing, Plaintiff have Judgment for; (i) Actual Damages and/or Exemplary Damages against
Defendant as set forth above; (ii) interest on any monetary damages awarded, from the date of
judgment at the legal rate; (iii) reasonable attorney's fees and costs of court; (iv) reasonable
attorney's fees in the event of appeal; and/or, for such other and further relief both general and
special, at law and in equity, to which Plaintiff may show himself justly entitled. Nothing herein is
intended as an election of remedies available to Plaintiffunder law.
Respectfully submitted,
Guillermo Ochoa-Cronfel
THE CRONFEL FIRM
2700 Bee Cave Road, Suite 103
Austin, Texas 78746
Telephone: 512-347-9600
Facsimile: 512-347-9911
Guillenno(Zuthecronfelfirm.com
By:/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel
State Bar No. 15175600
ATTORNEY FOR PLAINTIFF
[7]
21
CERTIFICATE OF SERVICE
I, Guillermo Ochoa-Cronfel, certifY by my foregoing signature that a true and correct copy of
the foregoing has been served via the method indicated below, pursuant to the Texas Rules of Civil
Procedure to the person(s) noted below on this the 24th day of June, 2015.
Terry L. Scarborough Via Texas eFiling
V. Blayre Pefia & E-mail: tscarborough(a}hslawmaiLcom
Hance Scarborough, LLP bpena@i;hslawmai Lcom
450 W. 15th St., Ste. 950
Austin, Texas 78701
T: 512-479-8888
T: 512-482-6891
ATTORNEYS FOR DEFENDANT
[8]
22
7/1/2015 7:52:26 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-14-004669 D-1-GN-14-004669
CHARLES L. FARRIS, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
KAREN E. LANDA, §
Defendant § 98th JUDICIAL DISTRICT
PLAINTIFF'S RESPONSE TO DEFENDANT'S SPECIAL APPEARANCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, CHARLES L. FARRIS, (hereinafter referred to as "Plaintiff' or
"Farris") and files his, Response to Defendant's Special Appearance, and respectfully shows the
Court as follows:
I.
"The plaintiffbears the initial burden of pleading sufficient allegations to bring a nonresident
defendant within the provisions of the long-arm statute." BMC Software Belgium, NV v. Marchand,
83 S.W.3d 789, 793 (Tex. 2002), citing McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965).
Plaintiff's Original Petition, as well as his live pleading, Plaintiff's First Amended Petition, set forth
in detail (amongst other things) allegations that; (i) Defendant entered into an agreement with
Plaintiff, in Texas, whereby Plaintiff would loan Defendant funds for the purchase of a house,
Defendant would pay Plaintiffback for said loan, and Plaintiff's name would be on the deed for said
house; (ii) Plaintiffs performance under the agreement would take place, in whole, within Texas;
(iii) Defendant breached the terms of that agreement; (iv) Defendant defrauded Plaintiff by
unilaterally striking his name from the Warranty Deed on her purchase of the above-referenced
house; and, (v) along with the above-referenced specific contacts Defendant has with Texas related
[1]
23
to Plaintiff's claims in this case, Defendant has and has had long-standing, systematic and continuous
contacts with Texas. Plaintiff has carried his initial burden with respect to his jurisdictional
allegations.
II.
As the plaintiffhas carried his burden with respect to the jurisdictional allegations, the burden
now falls on the defendant challenging this Texas court's personal jurisdiction over her to negate all
jurisdictional bases. BMC Software, 83 S.W.3d at 793, citing Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199, 203 (Tex. 1985). Defendant's bare-bones pleading, containing only conclusory
statements (many of which are demonstrably false), attested to via verification, is insufficient to
accomplish this task. See, Tex. R. Civ. P. 120a(3); Small v. Small, 216 S.W.3d 872, 876-877
(Tex.App.-Beaumont 2007, pet. denied).
"A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First,
the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of
jurisdiction must be consistent with federal and state constitutional guarantees of due process."
Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990), citing Tex. Civ. Prac. & Rem. Code §§s
17.041- 17.069.
The Texas long arm-statute states in pertinent part, "In addition to other acts that may
constitute doing business, a nonresident does business in this ifthe nonresident: (1) contracts by mail
or otherwise with a Texas resident and either party is to perform the contract in whole or in part in
this state; (2) commits a tort in whole or in part in this state ... " Tex. Civ. Prac. & Rem. Code
§17.042. And importantly, " ... section 17.042's broad language extends Texas courts' personal
jurisdiction 'as far as the federal constitutional requirements of due process will permit.'" BMC
[2]
24
Software, 83 S.W.3d at 795, citing U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760,762 (Tex. 1977).
"Personal jurisdiction over nonresident defendants is constitutional when two conditions are
met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of
jurisdiction comports with traditional notions of fairplay and substantial justice." BMC Software, 83
S.W.3d at 795, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90
L. Ed. 95 (1945); see also, Small, 216 S.W.3d at 876-877, and Citrin Holdings, L.L.C. v. Minnis, 305
S.W.3d 269, 278-279 (Tex.App.-Houston [14 1h Dist.] 2009, no pet.).
Further, "Personal jurisdiction exists if the nonresident defendant's minimum contacts give
rise to either specific jurisdiction or general jurisdiction." BMC Software, 83 S.W.3d at 795, citing
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S. Ct. 1868, 80
L. Ed. 2d 404 ( 1984), and Guardian Royal Exchange Assurance, Ltd. v. English China Clays, P.L. C.,
815 S.W.2d 223, 226 (Tex. 1991). Moreover, "To determine whether a nonresident defendant has
sufficient minimum contacts with Texas to support the exercise of personal jurisdiction," turns on,
" ... whether the nonresident defendant 'purposefully availed' itself of the privilege of conducting
business in Texas." Citrin Holdings, 305 S.W.3d at 278, citing Burger King Corp. v. Rudzewicz,
471 U.S. 462,475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985), andMichiana Easy Livin' Country, Inc.
v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In the 'purposeful availment' analysis the court
considers; (i) the defendant's actions; (ii) whether the defendant's actions were purposeful, as
opposed to random, isolated, or fortuitous; (iii) whether the defendant sought some benefit,
advantage, or profit by availing itself of the privilege of doing business in Texas. Citrin Holdings,
305 S.W.3d at278-279, citingMichiana, 168 S.W.3d at 785. And, lest we forget, "A defendant may
purposefully avoid Texas by structuring its transactions to neither profit from Texas's laws nor
[3]
25
subject itself to personal jurisdiction." !d. at 279, citing Burger King, 471 U.S. at 472, 105 S. Ct.
2174, and Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).
Finally, "Only in rare cases will the exercise of personal jurisdiction not comport with fair
play and substantial justice when a nonresident defendant has purposefully availed itself of the
privilege of conducting business within a forum." Citrin Holdings, 305 S.W.3d at 280, citing
Guardian Royal, 815 S.W.2d at 231.
III.
Specific Jurisdiction: "Specific jurisdiction over a nonresident defendant is established if (1) the
defendant's activities were purposefully directed to the forum state; and, (2) there is a substantial
connection between the defendant's forum contacts and the operative facts of the litigation. Citrin
Holdings, 305 S.W.3d at 279, citing Moki Mac, 221 S.W.3d at 585. Essentially, jurisdiction is
proper if the cause of action arises from some act or acts which constitute "doing business" in Texas,
as defined in the Texas long-arm statute. Schlobohm, 784 S.W.2d at 356-357.
Here, as was the case in Citrin Holdings, Defendant reached an agreement with Plaintiff
regarding the transfer of money at issue, through prolonged discussions with Plaintiff Defendant
communicated face-to-face with Plaintiff in Texas, and via telephone, e-mail, and mail, regarding the
contemplated transaction, which was performed by Plaintiff in whole in Texas, and by Defendant (at
the very least, in part) in Texas. With respect to the specific jurisdiction analysis, the Citrin Court
said, "These circumstances demonstrate Citrin's purposeful contact with Texas along with an intent
to obtain benefits from those contacts, and they defeat any suggestion that Citrin's business-related
presence in Texas was merely 'random, isolated or fortuitous.' Michiana, 168 S.W.3d at 785; see
also GJP, Inc. v. Ghosh, 25 1 S.W.3d 854, 879 (Tex.App.-Austin 2008, no pet.)." Citrin Holdings,
[4]
26
305 S.W.3d at 283. "The evidence of Texas-based contractual performance in this case reinforces
the exercise of specific jurisdiction." Citrin Holdings, 305 S.W.3d at 283, citing Texas Civ. Prac. &
Rem. Code §17.042(1); Nogle &Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277,283 (Tex.App.-
Houston [14th Dist.] 2009, no pet.); Fleischer v. Coffey, 270 S.W.3d 334, 338 (Tex.App.-Dallas
2008, no pet.).
General Jurisdiction: In a general jurisdiction analysis, the plaintiff's cause(s) of action need not
arise from or relate to the nonresident defendant's contacts with the forum, but the court's
jurisdiction over the defendant must be grounded in the defendant's contacts of a continuous and
systematic nature with the forum. Citrin Holdings, 305 S.W.3dat279, citingHelicopteros, 466 U.S.
at 414-416, 104 S. Ct. 1868, and Guardian Royal, 815 S.W.2d at 228. This is a more demanding
minimum contacts analysis than that required for specific jurisdiction, in which the court examines
the defendant's contacts and forum-related activities up to the time suit was filed. Citrin Holdings,
305 S.W.3d at279, citing Guardian Royal, 815 S.W.2dat228, andPHC-Minden, L.P. v. Kimberley-
Clark Corp., 235 S.W.3d 163, 170 (Tex. 2007).
In the instant case, the general jurisdiction inquiry by the Court should focus on Defendant's
long-standing, continuous and systematic contacts with Texas, which Plaintiff will show include; (i)
Defendant having lived and worked in Austin for a majority of the last twenty-plus (20+) years; (ii)
Defendant having lived and worked in Austin as recently as April, 20 14; and, (iii) Defendant holding
an active license with the Texas Department oflnsurance from April, 1987, to the present. Plaintiff
will show that not only should specific jurisdiction apply in this case, but general jurisdiction should
apply as well.
[5]
27
IV.
Amongst Defendant's attempts to negate the court's jurisdictional bases in this matter is her
sworn statement that, "Defendant does not now engage and has not engaged in business in Texas or
committed any tort, in whole or in part, within the state." Defendant's Special Appearance, -,r 2(b).
Plaintiff's testimony at the hearing on Defendant's Special Appearance will mirror the allegations in
his pleadings in this respect; chiefly, that he and Defendant entered into a loan agreement (in Texas)
whereby he would loan Plaintiff the funds at issue herein, and further, perform his obligations under
said agreement in whole or in part in Texas. Moreover, Defendant's P 1 Amended Responses to
Plaintiff's 1st Set of Discovery Requests also demonstrate the falsity ofDefendant' s above-described
statement. For example, in response to Requests for Admission Nos. 13-17, Defendant admits that;
(i) Karen Landa Insurance is a d/b/a of Defendant; (ii) as recently as 2014, Karen Landa Insurance
was a member of and/or sponsor ofthe Westlake Hills Chamber of Commerce; (iii) from (at least)
January, 2010 through March 13, 2015, Defendant held an active insurance license with the Texas
Department oflnsurance 1 ; and, (iv) within the last ten (1 0) years, Defendant served on the Board of
Directors of Austin Hospice Community Foundation. See First Amended Responses to First Set of
Discovery Requests to Defendant Karen E. Landa, attached hereto and incorporated herein as
Exhibit "A". By Defendant's own admission, and the testimony of Plaintiff, Plaintiff will
demonstrate that Defendant has engaged in business in the State of Texas, including the business at
issue in this matter.
Likewise, Defendant's sworn, conclusory statements that; "Defendant has no substantial
connection with Texas arising from any action or conduct ofDefendant purposefully directed toward
[6]
28
Texas," "Plaintiff's claims do not arise from and are not related to any activity conducted by
Defendant in Texas," and "Defendant has no continuing and systematic contacts with Texas," are
demonstrably false. Along with those discovery responses noted above, in response to Requests for
Admission Nos. 1, 2 & 8, in the above-referenced Exhibit A, Defendant admits that Plaintiff wired
over $89,000.00 in funds, which are specifically complained of in Plaintiff's First Amended Petition
as being the subject of a loan agreement between Plaintiff and Defendant, to a joint account of
Plaintiff and Defendant, and that said funds were used by Defendant to purchase a house in Iowa.
See Exhibit A. Defendant specifically sought the funds from Plaintiff, a Texas resident, in Texas.
Again, Plaintiff will also demonstrate, that Defendant sought out and obtained the agreement (and
the funds arising from same), voluntarily, from a Texas resident, knowing full well that the funds
would come from a Texas resident.
As is set forth above and as Plaintiff will further show at the hearing on Defendant's Special
Appearance, Plaintiff's allegations in this case amply demonstrate the applicability of the Texas long
arm-statute in this case, that federal due process concerns are met in this case, and that this Court has
personal jurisdiction over Defendant.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court deny Defendant's
Special Appearance, that Defendant be required to appear and answer his First Amended Original
Petition, and for such other and further reliefboth general and special, at law and in equity, to which
Plaintiff may show himself justly entitled. Nothing herein is intended as an election of remedies
available to Plaintiff under law.
1
In fact, Defendant testified at deposition that she still holds an active insurance license with TDI.
[7]
29
Respectfully submitted,
Guillermo Ochoa-Cronfel
THE CRONFEL FIRM
2700 Bee Cave Road, Suite 103
Austin, Texas 78746
Telephone: 512-347-9600
Facsimile: 512-347-9911
Guillermo@thecronfel tirm.com
By:/s/ Guillermo Ochoa-Cronfel
Guillermo Ochoa-Cronfel
State Bar No. 15175600
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I, Guillermo Ochoa-Cronfel, certify by my foregoing signature that a true and correct copy of
the foregoing has been served via the method indicated below, pursuant to the Texas Rules of Civil
Procedure to the person(s) noted below on this the 1st day of July, 2015.
Terry L. Scarborough Via E-mail: tscarborough(a}hslawmail.com
V. Blayre Pefia bpena(t:{?hslawmail.com
Hance Scarborough, LLP
450 W. 15th St., Ste. 950
Austin, Texas 78701
T: 512-479-8888
T: 512-482-6891
ATTORNEYS FOR DEFENDANT
[8]
30
§ 17.042. Acts Constituting Business in This State, TX CIV PRAC & REM § 17.042
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle B. Trial Matters
Chapter 17. Parties; Citation; Long-Am1 Jmisdiction (Refs &Annos)
Subchapter C. Long-Arm Jmisdiction in Suit on Business Transaction or Tort (Refs & Annas)
V.T.C.A., Civil Practice & Remedies Code§ 17.042
§ 17.042. Acts Constituting Business in Tllis St ate
Currentness
In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
( 1) contracts by mail or otherwise with a Texas resident and either party is to perfotm the contract in whole or in part in
tlus state;
(2) con:units a tort in whole or in part in tills state; or
(3) recmits Texas residents, directly or through an intem1ediaty located in this state, for employment inside or outside this
state.
Ct·edits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Notes of Decisions ( 1526)
V. T. C. A., Civil Practice & Remedies Code § 17.042, TX CIV PRAC & REM § 17.042
Oment through the end of the 2015 Regular Session of the 84th Legislature
End of DocumPnt 0 10 15 Thomson Reuters. No claim to original US. Government Works.
'N~tt Next © 2015 Thomson Reuters No claim to original U S Government Works
38.1. Appellant's Brief, TX R APP Rule 38.1
Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annas)
Rule 38. Requisites of Briefs (Refs &Annas)
TX Rules App.Proc., Rule 38.1
38.1. Appellant's Brief
Currentness
The appellanfs brief must, tmder appropriate headings and in the order here indicated, contain the following:
(a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court's judgment or order
appealed from, and the nan1es and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8.
(b) Table of Contents. The brief must have a table of contents with references to the pages of the brief. The table of contents
must indicate the subje.c t matter of each issue or point, or group of issues or points.
(c) Index ofAuthorities. The brief must have an index of authorities ananged alphabetically and indicating the pages of the
brief where the authorities are cited.
(d) Statement ofthe Case. The brief must state concisely the nature of the case (e.g., whetherit is a suit for danlages, on a note,
or involving a mmder prosecution), the course of proceedings, and the fl·ial cowt's disposition of the case. The statement should
be supported by record references, should seldom exceed one-half page, and should not discuss the facts.
(e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral argument should or should
not be pennitted. Any such statement must not exce.e d one page and should address how the court's decisional process would,
or would not, be aided by oral argument. As required by Rule 39.7, any patty requesting oral argwnent must note that request
on the front cover of the party's brief.
(f) Issues Presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point
will be treated as covering every subsidiary question that is fairly included.
(g) Statement ofFacts. The brief must state concisely and without argtm1ent the facts pertinent to the issues or points presented.
In a civil case, the cowt will accept as tme the facts stated tmless another party contradicts them. The statement must be
supported by record references.
(h) Summary of the Argument. The brief must contain a succinct, clear, and accw·ate statement of the arguments made in the
body of the brief. This sullllllaly must not merely repeat the issues or points presented for review.
'.\lt!stt Next © 2015 Thomson Reuters No claim to original U S Govemment Worl 2015 Thomson Reuters. No clatm to origwal U.S. Government Works.
No claim to original U S Government Wor!17 A. 1978.
18 Q. Where?
19 A. Urbandale, Iowa.
20 Q. And you came to UT to go to college?
21 A. Yes, sir.
22 Q. Why?
23 A. I came to UT because my grandmother lived
24 here in Austin and had started an IT school, and so I
25 was able to live with her and attend UT as a Texas
33
1 resident because I was born in Denton, Texas.
2 Q. And did you graduate?
3 A. No, sir, I did not.
4 Q. How many years did you attend UT?
5 A. Two years.
6 MR. OCHOA-CRONFEL: Your Honor, I'm
7 sorry. Is the microphone working? I don't think
8 it's working, and I'm having a little bit of trouble
9 hearing.
10 Excuse me; I didn't mean to --
11 THE COURT: Could you speak a little
12 louder?
13 THE WITNESS: Okay.
14 Q. (BY MR. SCARBOROUGH) You need to just
15 speak up.
16 A. Okay.
17 Q. Have you ever been in court before?
18 A. Yes, I have.
19 Q. Related to a divorce or something?
20 A. It was my husband's estate.
21 Q. Okay. We'll touch on that very briefly.
22 The Court has said she didn't want to hear too much
23 about it --
24 A. Okay.
25 Q. -- but I, in my opening statement, talked
34
1 about a period of time from 1980 --
2 A. Yes, sir.
3 Q. -- through -- I think what I said, Judge,
4 was the summer of 2010. So during that period of
5 time, that's 30 years, did you either live in
6 Williamson or Travis County?
7 A. Yes, sir.
8 Q. And did you work in Williamson or Travis
9 County?
10 A. Yes, sir.
11 Q. And did you -- were you married in either
12 Williamson or Travis County?
13 A. Yes, sir.
14 Q. On more than one occasion?
15 A. Yes, sir.
16 Q. You had -- divorced in Williamson or Travis
17 County during that 30 years.
18 A. Yes, sir.
19 Q. And you had children during that 30 years
20 in Austin or Williamson County.
21 A. Yes, sir.
22 Q. As part of your work, were you ever at any
23 time required to obtain, from the Texas Department of
24 Insurance, a license?
25 A. Yes, sir.
35
1 Q. When was that?
2 A. That would have been 1986 or '87.
3 Q. Okay. And do you still hold that license?
4 A. Yes, I do.
5 Q. Today?
6 A. Yes, sir.
7 Q. Okay. Now, has that license been changed
8 from time to time when you go back and forth to Iowa
9 from a resident license to a nonresident license?
10 A. Yes.
11 Q. Did you at some point along the way acquire
12 a license in Iowa to be -- to sell insurance
13 products?
14 A. Yes, sir.
15 Q. Okay. Can you have a resident license to
16 sell insurance in two different states at the same
17 time?
18 A. No, sir.
19 Q. Explain that to the Court.
20 A. To have your insurance license, they want
21 to know your address, your residence. And so when
22 you change your address to a state -- out of state
23 address other than Texas, it automatically flags it
24 as a nonresident license. I was able to obtain an
25 insurance license in Iowa because I'm grandfathered.
36
1 I've been an insurance agent for so long. And that
2 license was -- when I applied for it as a resident of
3 Iowa --
4 Q. And when was that?
5 A. That would have been April 2011.
6 Q. Okay. Now, backing up real quickly. What
7 jobs -- just bracket the years where you actually
8 used -- when you got it in '86 or '87 -- what jobs
9 did you use it for over what period of time?
10 A. From '86, '87 until 1998 I used my
11 insurance license. And then again when I went to
12 work at another employer from 2005 to 2008.
13 Q. Okay. Now, the job you had before you left
14 town --
15 A. Uh-huh.
16 Q. -- after the '08 -- the last job you had in
17 Texas was what?
18 A. I worked for Tribeza magazine.
19 Q. Now, was the -- who was the owner of that
20 magazine?
21 A. The owner was my boyfriend, Dale Dewey. He
22 was a co-owner.
23 Q. And were you paid -- did you live with him
24 and work together at the same time?
25 A. Yes. Yes, sir, I did.
37
1 Q. And did your work for the Tribeza magazine
2 require you to use that insurance license?
3 A. No, sir, it did not.
4 Q. Why didn't you at that time just give it
5 up?
6 A. Because when you're grandfathered and, as
7 long as I've had that license, it's easier just to
8 renew it every year than to let it go because it is
9 such a huge undertaking to get an insurance license.
10 Q. Okay. But is it your testimony that you
11 didn't use it the rest of the time you were in Austin
12 before you left?
13 A. Yes, sir.
14 Q. Is that correct?
15 A. I did not use the license.
16 Q. Okay. And after that last job where you
17 did use it up through '08, starting with Tribeza
18 magazine, did you use it again in Texas before you
19 moved in the summer of 2010?
20 A. No, sir, I did not.
21 Q. Now, very briefly, you've -- we've
22 established by way of opening statement, but when did
23 you actually move to Iowa to be with your mother?
24 A. I arrived there the very end of October,
25 first of November.
38
1 Q. Of what year?
2 A. It would have been 2010.
3 Q. And so when did you leave Austin?
4 A. I left Austin the end of June, first of
5 July.
6 Q. Okay. So during the summer of that year,
7 which would have been 2010, were you still with your
8 boyfriend?
9 A. I was.
10 Q. And where did y'all go first?
11 A. We went -- he flew to Austin and drove with
12 me to his parent's home in Michigan.
13 Q. Okay. Was he wanting to relocate into
14 New York?
15 A. He wanted to go back to the East Coast.
16 That's where his contacts were and he was from
17 Connecticut. He wanted to re-establish a position in
18 New York City.
19 Q. And so for some short period of time did
20 you and he live in a guest quarters, guest house of
21 his parents in Michigan?
22 A. Yes. We traveled during that time and
23 stayed at the guest house that they had in Roscommon,
24 Michigan, a family home.
25 Q. And after that what -- what month did you
39
1 move to New York?
2 A. He drove me to New York. And it would have
3 been September 2010.
4 Q. And so you lived with your boyfriend in
5 New York in September and October?
6 A. Yes, sir.
7 Q. And did that relationship end?
8 A. Yes, it end -- it did. It ended.
9 Q. Now, at the same time what was happening
10 with your mother's health?
11 A. My mother's health -- she had -- was in
12 Stage 4 cancer and it kept getting worse. And when I
13 was in New York, I got a phone call that she had been
14 hospitalized again. And when -- I knew that it
15 wasn't going to work out with Dale. I could either
16 go back to Austin, but I knew my mother needed me
17 more. So a girlfriend of mine flew in from Iowa to
18 New York and drove with me in my car and my dogs and
19 we went to Iowa.
20 Q. And that was late October 2010?
21 A. Yes. I remember we arrived on Halloween,
22 10-31 of 2010.
23 Q. And did you move in with your mother?
24 A. I moved in with my mother.
25 Q. Now, during this period of time did you
40
1 have belongings stored somewhere?
2 A. I did.
3 Q. Where were they stored?
4 A. They were stored in Austin -- they were
5 stored in Texas. I think they were -- it was at a
6 PODS facility, somewhere here I believe in Travis
7 County.
8 Q. And I don't want the detail but, just
9 generally, what were your belongings that were
10 stored?
11 A. I have huge pieces of artwork and lots of
12 furniture. I had a very large home, and so it was
13 appliances -- but it was over -- it was five full
14 pods of furniture that were stored.
15 Q. All right. And they -- even when you went
16 to New York, did they stay in Austin?
17 A. They always stayed in Austin because Dale
18 didn't have an offer on a job until later, so we
19 didn't know where we were going to go.
20 Q. Okay. And then when you got to Iowa and
21 you're living with your mother, did you immediately
22 bring the storage stuff to Iowa, or was that later?
23 A. No. The storage I did not bring it till
24 December. I was trying to figure out where to put
25 the items --
41
1 Q. Okay.
2 A. -- trying to find a place --
3 Q. That's all I want to know. You brought it
4 in December.
5 A. Okay.
6 Q. And was there a significant cost in
7 storage?
8 A. The cost for the five pods was $1,500 or
9 more every month. And I was trying to cut back on
10 that expense, so I was trying to figure out a way to
11 get them out of storage.
12 Q. Now, we're going to talk in greater detail
13 about the closing, but when was the closing on the
14 condo in Iowa?
15 A. February 28th of 2011.
16 Q. Okay. And -- now, with the exception --
17 you -- we'll get to it in a minute, but you later
18 moved back to Texas for a period of time, some eight
19 or nine months.
20 A. Yes, sir.
21 Q. When was that time frame --
22 MR. OCHOA-CRONFEL: Your Honor, I'm
23 going to object to the leading.
24 Q. (BY MR. SCARBOROUGH) When was that time
25 frame?
42
1 MR. OCHOA-CRONFEL: May I have a
2 ruling on the objection?
3 THE COURT: Sustained.
4 A. It was after my mother's death and after
5 her estate was resolved, so it would have been -- I
6 came back in end of July, first of August I arrived
7 in Austin. And that was --
8 Q. (BY MR. SCARBOROUGH) What year?
9 A. I'm trying to think of years. 2013.
10 Q. Okay. And you moved back here for what
11 reason?
12 A. My son had announced that he was getting
13 married, and I wanted to be part of the wedding
14 ceremony. And I was hoping to reconcile with him.
15 And I knew that, for me to have a relationship with
16 him, I needed to be closer to him and thought that
17 being in Austin would be helpful in that.
18 Q. And when was he married?
19 A. He was married February 28th of 2014.
20 Q. Now, back up real quickly, when you got --
21 you said in the spring you got your real estate --
22 not real estate -- your insurance license in Iowa.
23 A. In 2011, April, uh-huh.
24 Q. Okay. And when you got that license --
25 we've talked about having two resident licenses.
43
1 What did you do with the Texas license and what did
2 you do with the Iowa license?
3 MR. OCHOA-CRONFEL: Your Honor, I'm
4 going to -- I'm going to object to --
5 Mr. Scarborough's testifying and leading the witness.
6 I'm going to object to it.
7 THE COURT: Overruled.
8 A. You have an obligation to keep your license
9 up to date. And usually you do that when it's on a
10 renewal. And so when I moved to Iowa and obtained
11 the Iowa license for insurance, that automatically
12 flagged Texas that I was in Iowa. And so they
13 notified me that I needed to change the status to a
14 nonresident and updated my Texas license to show my
15 Iowa address.
16 Q. (BY MR. SCARBOROUGH) Did you do that?
17 A. Yes.
18 Q. All right. And your Iowa license was
19 listed as a resident license?
20 A. Yes.
21 Q. Okay. Now, you've testified about a period
22 of time you moved back. When you moved back from
23 July of '13 to April of '14, what did you do with
24 your licenses when you moved back?
25 A. When I came back I didn't have a job. But
44
1 when I was offered a job to go in the insurance
2 business --
3 Q. When was that?
4 A. I started work there September of 2013.
5 As -- part of my obligation is to notify Texas that
6 I'm in Texas and to change the status because they
7 can't appoint you as an agent if you don't have a
8 resident license.
9 Q. So did you do that --
10 A. Yes.
11 Q. -- at that time?
12 A. Yes, sir, I did.
13 Q. Now, simultaneously did you change your
14 Iowa license to a nonresident?
15 MR. OCHOA-CRONFEL: Objection;
16 leading, Your Honor.
17 THE COURT: Sustain -- I mean,
18 overruled. Sorry.
19 A. Yes, sir, I did.
20 Q. (BY MR. SCARBOROUGH) Okay. And during the
21 time while you were here in Texas, from September
22 when you got your job of '13 through April of '14,
23 did you -- did you attempt to sell insurance-related
24 products to Texas residents while you were here?
25 A. I tried to open up an agency after my
45
1 training, yes. December 1 is when I opened up my
2 business.
3 Q. Okay.
4 THE COURT: Of what year?
5 THE WITNESS: 2013.
6 THE COURT: Okay.
7 Q. (BY MR. SCARBOROUGH) And when did that
8 end?
9 A. I resigned in -- end of April 2014.
10 Q. And did you -- where did you move to?
11 A. I went back to Iowa.
12 Q. Okay. And in Iowa did you -- when you went
13 back to Iowa, did you have a job when you went back?
14 A. No, I didn't have a job.
15 Q. Did you immediately change your license in
16 Texas to nonresident and the one in Iowa to resident?
17 MR. OCHOA-CRONFEL: I'm going to
18 object as leading again. He's putting words in
19 the --
20 THE COURT: Sustained.
21 MR. OCHOA-CRONFEL: -- in the witness'
22 mouth.
23 Q. (BY MR. SCARBOROUGH) When did you change,
24 if you did, your licenses in Texas and Iowa to
25 reflect that you were in Iowa?
46
1 A. I changed the address once I had a
2 permanent residence, and that was when I went back to
3 work, and that was September 2014.
4 Q. Okay. And in September of 2014, what did
5 you do with regard to your Iowa license and what did
6 you do with regard to your Texas license?
7 A. I updated the Iowa license to show me as a
8 residence of Iowa with the same address, and at the
9 same time updated my Texas license to show the
10 updated address as a nonresident status.
11 Q. Okay. When's the first time -- was it
12 before or after you moved to Iowa on Halloween,
13 October of 2010 -- that you and the plaintiff ever
14 talked about him providing any money?
15 MR. OCHOA-CRONFEL: Your Honor, I'm
16 going to object. There's a continuing pattern of
17 Mr. Scarborough putting words in the witness' mouth.
18 He's continuing to characterize testimony --
19 THE COURT: He just asked when did she
20 first talk --
21 MR. OCHOA-CRONFEL: But he's
22 characterizing, Your Honor. Halloween -- we didn't
23 hear anything about Halloween.
24 THE COURT: Overruled.
25 You can answer that.
47
1 A. When I got to Iowa -- I needed to do
2 something with my belongings, and so I talked to
3 Lee --
4 Q. (BY MR. SCARBOROUGH) The question --
5 A. -- probably November of 2014 -- or 2000 --
6 excuse me. It would have been the day I got there.
7 2010.
8 Q. November of 2014?
9 A. November --
10 Q. Excuse me. We both misspoke.
11 A. I know.
12 Q. Let's go back. It was -- you're saying
13 it's November of '10 --
14 A. Yes, after I got back to Iowa.
15 Q. -- is the first time there was ever any
16 discussion?
17 A. Yes. Yes, sir.
18 Q. Okay. Now, let's talk real briefly about
19 the trip to Dallas. You understand that -- well, let
20 me ask it this way: By this time frame, December of
21 2010, how long had you been divorced from the
22 plaintiff?
23 A. For a number of years.
24 Q. '91?
25 A. Since '91 to current.
48
1 Q. So 19 years?
2 A. Yeah, 19 years plus.
3 Q. Had y'all continued to have a relationship?
4 A. He adopted my first child, and we had
5 another child together. And so even though we've
6 been divorced, we've been in constant contact because
7 of the kids.
8 Q. What conversation did you have with the
9 plaintiff about where you would first meet? Was it
10 Dallas or somewhere else?
11 A. It was brought -- I told Lee I was trying
12 to find a place for me to be able to stay while I was
13 in Iowa, and I was surprised at how reasonable the
14 costs were on houses. I couldn't find a rental
15 house, but I talked to him that I was looking at
16 properties or a place that I could go. And so that
17 would have been in November of 2010.
18 But -- would you repeat the question?
19 I'm not sure what I'm -- I was trying to respond.
20 Q. I was checking on my time, and I'm not even
21 for sure that it was responsive. Let me try to move
22 on. I don't want to take too much time.
23 Yeah, the question I was asking is,
24 did you have a conversation with Mr. Farris about him
25 coming to Iowa to discuss this?
49
1 A. He wanted to come to Iowa to discuss it.
2 Q. What was said?
3 A. He said he wanted to fly up to Iowa to see
4 me and we could talk about it there in Iowa.
5 Q. Where did he say he wanted to stay?
6 A. He wanted to stay with me, but I was
7 staying --
8 MR. OCHOA-CRONFEL: I'm going to --
9 A. -- with my mom --
10 MR. OCHOA-CRONFEL: -- object again to
11 the leading nature of the questions, Your Honor.
12 It -- where did he say he wanted to stay? I mean,
13 that's --
14 THE COURT: Overruled.
15 MR. OCHOA-CRONFEL: -- assuming that
16 he said that he wanted to --
17 THE COURT: Overruled.
18 A. He wanted to come to Iowa, but I told him
19 there was no place for him to stay at Mother's house.
20 It was like a hospital at that time, and there was
21 barely room for me. And I told him he would have to
22 get a hotel. When I told him that, he said, Well,
23 then, why don't you meet me in Dallas.
24 Q. (BY MR. SCARBOROUGH) So is it -- was it
25 his idea to meet in Dallas?
50
1 A. Yes, sir, it was.
2 Q. Did you meet him in Dallas?
3 A. I did.
4 Q. Did you spend a weekend there together?
5 A. I did.
6 Q. Stayed in the same hotel or motel room?
7 A. Yes, sir, we did.
8 Q. From when to when?
9 A. It was the weekend before Christmas. And
10 it was -- he picked me up on a Friday and took me
11 back to the airport at DFW on Sunday morning.
12 Q. At that point in time did you -- had you
13 found the condo that you wanted to buy and ultimately
14 bought in February of '11?
15 A. I had found a number of properties, but
16 there wasn't a specific property that I was trying to
17 focus on.
18 Q. My question that you didn't answer is, had
19 you found the specific one that you bought in
20 February?
21 A. I'd seen it, yes, sir.
22 Q. You'd seen it.
23 A. Yes.
24 Q. Okay. Did you -- so you had a number of
25 properties?
51
1 A. Yes, I -- yes.
2 Q. Okay. Did you know how much money was
3 going to be needed to close that house?
4 A. There was never a discussion about specific
5 amounts or specific property.
6 Q. Okay. You understand that the merits of
7 this case -- Mr. Farris says -- we're going to argue
8 that but we're not today. He says it was a loan; you
9 say it was a gift. Correct?
10 A. Yes, sir.
11 Q. Okay. Is there any dispute about the fact
12 that whether it was a loan or whether it was a gift,
13 that the money was provided by Mr. Farris?
14 A. There is no dispute.
15 Q. And when did that money come?
16 A. In February 2011.
17 Q. Okay. Was there any agreement reached
18 between you and him while you were there in Dallas,
19 or was it a general discussion?
20 A. It was a discussion. It was more of a
21 visit. It wasn't just about this topic, but there
22 was just a general discussion about it.
23 Q. Okay. You heard what he said the weekend
24 was about --
25 A. Yes, I have.
52
1 Q. -- in his deposition.
2 A. Yes.
3 Q. What did he say in his deposition that the
4 weekend was about?
5 A. He just wanted to get together.
6 Q. With regard to the closing, from the time
7 you first talked about it in November of 2010 until
8 it closed in February 28 of 2011, did you ever come
9 back to Texas for any reason regarding that?
10 A. No, sir, I didn't.
11 Q. Were there communications by e-mail and
12 telephone during that period of time?
13 A. Several, yes. There was a lot of
14 communication.
15 Q. Was Mr. Farris required by the lender to
16 provide financial information and detailed
17 information?
18 A. Yes, sir, he was.
19 Q. And did he provide that information either
20 to you or directly to the lender?
21 A. Yes, sir, he did.
22 Q. And was there initially going to be a
23 traditional mortgage?
24 A. We were both under the assumption that
25 would be the way to go, and so that's what we applied
53
1 for, was a traditional mortgage.
2 Q. Was that granted or not?
3 A. No. It was turned down by two different
4 sources.
5 Q. Okay. Having to do with you, him or both?
6 A. Both.
7 Q. And from then was there another method of
8 financing?
9 A. There was. I was with my mother at the
10 kitchen table when we found out that we couldn't get
11 a mortgage. The first mortgage had been declined.
12 And she called a friend of hers named Gary Buelt that
13 was a vice president of an Iowa bank and explained
14 the situation and that how I would be going to work
15 and I was going to be staying in Iowa, and that my
16 ex-husband was going to be gifting this money.
17 And he introduced us to -- or me, I
18 had never met her before, Yvonne Silvers. And she
19 was with Bankers Trust, and that's the person that
20 tried to work out financing for us.
21 Q. Do you know -- did that person communicate
22 directly with the plaintiff regarding this
23 transaction?
24 A. Yes, she did.
25 Q. How do you know that?
54
1 A. I know that because not only did I see him
2 copied on e-mails, but I would talk to him about what
3 was at hand or whatever had happened that day, and he
4 would tell me that he had talked to her.
5 Q. All right. Now, after the closing, were
6 you asked for and did you provide a copy of the
7 closing papers?
8 A. Yes, sir, I did.
9 Q. And in the deed there is -- it may or may
10 not be in evidence, depending on the Court's ruling.
11 Are both your names in the deed typed in there and
12 his name stricken out?
13 A. Yes, sir.
14 Q. Did you have anything to do with striking
15 that name out of there?
16 A. Absolutely not.
17 Q. Was -- were you -- were you surprised when
18 you saw that, or did you know about it ahead of time?
19 A. I was surprised when I first saw it because
20 we were not accepted to have a traditional mortgage.
21 What Yvonne came up with was a line of credit note
22 that was going to be in-house in the bank where she
23 could do a three-year note that was based on treasury
24 bonds and that I could later turn it into a
25 traditional mortgage. But it was a solution because
55
1 I didn't have a job at that time and --
2 MR. OCHOA-CRONFEL: I'm going to
3 object to the answer as not responsive, Your Honor.
4 THE COURT: Sustained.
5 Q. (BY MR. SCARBOROUGH) All right. Let me
6 just -- let's go question and answer. That's what
7 the rules are.
8 A. Okay.
9 Q. Did you mail him the information and, in
10 that, did it contain a deed where his name was
11 stricken?
12 A. Yes.
13 Q. Were you trying to hide that in any way?
14 A. Absolutely not.
15 Q. Did you know about it -- at the time prior
16 to the closing did you know that's the way it was
17 going to be?
18 A. Yes, sir, I did.
19 Q. And did you have a conversation with
20 Mr. Farris so that he knew about that?
21 A. He knew the same information that I did.
22 Q. Okay. You understand he says he didn't?
23 A. I hear that.
24 Q. Okay. Now, when did you mail all those
25 closing documents to him?
56
1 A. I believe I was able to get copies of
2 everything and I sent it to him in April 2011.
3 Q. The documents that Mr. Cronfel has -- I
4 think his envelope says April 21st, 2011.
5 A. That sounds right.
6 Q. Now, everything with regard to this
7 transaction happened between November of 2010 and
8 when you mailed him all of the information in -- on
9 April the 21st of 2011.
10 A. Yes, sir.
11 Q. Very briefly, I want to go through all of
12 your contacts in Texas since the December -- we've
13 already covered that one.
14 A. Okay.
15 Q. All right. So let's move on.
16 Post-closing, when's the first time
17 you ever came back to Texas after that closing,
18 February of 2011?
19 A. After my mother passed away in
20 February 2012.
21 Q. So a year later?
22 A. Yeah.
23 Q. And the purpose of that was to do what?
24 A. They wanted to have a ceremony up in
25 Farmersville and try to bury her ashes at a family
57
1 grave.
2 Q. Okay. After that, when's the next time you
3 came back to Austin for any -- to Texas for any
4 reason?
5 A. I believe it was for James Armstrong's 80th
6 birthday.
7 Q. So you -- is he a friend of yours?
8 A. He's a dear friend. He's like a family
9 member, but we're not related.
10 Q. Give me the date on that.
11 A. It was a big event at the Driskill. It was
12 like a three-day event. And it was --
13 Q. I want the date.
14 A. It was -- May 10th, I believe, was his
15 birthday. So I flew in that week.
16 Q. And did that coincide with one of your
17 children's birthdays?
18 A. My son's birthday was that Sunday, May
19 13th. And so if -- I wanted to go to the party but
20 also see my son for his birthday.
21 Q. And are those the reasons that you came
22 back, for the birthday party of your friend, 80th,
23 and for your son?
24 A. Exactly.
25 Q. While here, did you give Mr. Farris a check
58
1 for $15,000?
2 A. I did. I brought it to him in person.
3 Q. Was that in repayment of a loan or
4 something else?
5 A. No. It was not a repayment for a loan. He
6 had said he was having some financial problems with
7 payment from clients of his business. He didn't go
8 into detail, but I told him I would do what I could,
9 and I gave him a check for $15,000.
10 Q. That was May of 2012?
11 A. Yes, sir.
12 Q. When's the next time you came to Texas for
13 any reason?
14 A. I believe it was the following spring,
15 2013. This is when my mother -- her estate's finally
16 wrapped up. And I knew that my son was getting
17 married, and I wanted to take a trip down to Austin
18 to see what the prospects were if I did come back.
19 Q. Prospects for coming back to Texas?
20 A. Right, coming back to Austin.
21 Q. Do you know what month that was in '13?
22 A. I believe it was June, Two Thousand --
23 wait. Yeah, 2013.
24 Q. Okay.
25 A. June.
59
1 Q. And did you interview for a job while you
2 were here?
3 A. I did.
4 Q. Did you get that job?
5 A. I did not. I interviewed on the phone when
6 I was in Iowa, and they wanted me to come see them,
7 and that's why I came down, was for the interview.
8 Q. Very briefly because we've already touched
9 on it, you moved back in what month?
10 A. I moved back the end of July, first of
11 August, 2013.
12 Q. And you lived here -- by the way, did you
13 rent a place, or did you live rent free?
14 A. I stayed at a friend's guest house out in
15 Lakeway. They live primarily in Florida. And so I
16 just stayed as a guest.
17 Q. Now, you testified earlier that all your
18 belongings had been shipped up to Iowa in December of
19 2010.
20 A. Yes, sir.
21 Q. Did they stay in Iowa?
22 A. My belongings never left Iowa because I
23 didn't know what was going to happen in Texas, and I
24 didn't have a place. So everything stayed in Iowa.
25 Q. And your son's wedding was February of --
60
1 A. February 28 of 2014.
2 Q. And were you -- during that period of time
3 you got a job, I think you've testified to.
4 A. Yes, sir.
5 Q. You used your Texas real estate -- not
6 real estate. Excuse me.
7 A. Insurance.
8 Q. Texas insurance license.
9 A. Yes, sir.
10 Q. In part of your work while you were here.
11 A. Yes, sir.
12 Q. And, in fact, did Mr. Farris even -- did he
13 ask you to do any work for him?
14 A. He asked me for an insurance quote for some
15 car insurance, but he never took out insurance with
16 me.
17 Q. Okay. And you did that while you were in
18 Texas for him?
19 A. Yes, I did.
20 Q. And when did you move back to Iowa?
21 A. I moved back to Iowa the end of April,
22 2014.
23 Q. And with regard to anything that touches on
24 Texas, you've already testified that you've changed
25 your licenses in September of '14; is that right?
61
1 A. Yes.
2 Q. Iowa to a resident in Texas to a
3 nonresident.
4 A. Yes, sir.
5 Q. Now, again, why was the delay -- if you
6 went back in April, why did you wait till September
7 to do that?
8 A. Because I didn't have a permanent address.
9 You don't want to put down a temporary address on a
10 record for a document, so I waited until we closed on
11 a house.
12 Q. And did you have a job?
13 A. And I didn't have a job. I started in
14 September. So that's when I changed it.
15 Q. Okay. Does Iowa have a state income tax?
16 A. Yes, they do.
17 MR. SCARBOROUGH: I'd like to have
18 these marked.
19 (Defendant's Exhibits Nos. 1 through 4
20 were marked.)
21 Q. (BY MR. SCARBOROUGH) These are Exhibits 1
22 through 4. Would you identify them for the Court?
23 MR. SCARBOROUGH: And for the record,
24 Your Honor, Mister --
25 A. These are copies --
62
1 Q. (BY MR. SCARBOROUGH) Hold on. Let me say
2 something.
3 A. Oh, I'm sorry.
4 MR. SCARBOROUGH: Mr. Cronfel has said
5 he has no objection to these.
6 Q. (BY MR. SCARBOROUGH) What are they?
7 MR. OCHOA-CRONFEL: That's correct,
8 Your Honor.
9 THE COURT: I'll go ahead and admit 1
10 through 4.
11 (Defendant's Exhibits Nos. 1 through 4
12 admitted.)
13 A. They're copies of my tax returns from 2010
14 to 2013.
15 Q. (BY MR. SCARBOROUGH) Why do you have to
16 file the tax returns? Were you there the entire year
17 of 2010?
18 A. No, but that's where I was living when it
19 was time to do the taxes.
20 Q. If you lived in Iowa for any part of the
21 year, do you have to file a tax return?
22 A. For their state income tax you file a
23 separate return.
24 Q. Okay. And then in '11 you filed one?
25 A. I did for the two months that I was there
63
1 for November and December.
2 Q. For -- that would be --
3 A. In 2010.
4 Q. -- '10. You filed one for '11?
5 A. I did.
6 Q. Filed one for '12?
7 A. Uh-huh.
8 Q. Is that correct?
9 A. Yes, sir.
10 Q. You filed one for '13, even though you
11 weren't there the whole year?
12 A. No, but I filed one for the time I was
13 there.
14 Q. And then in '14 -- we don't have '14 for
15 some odd reason. I'm not sure why. Did you file one
16 for '14 as well?
17 A. Yes, sir, I did.
18 Q. And for the period of time you were in Iowa
19 when you we want back?
20 A. Yes. They prorate for only the time here
21 in the --
22 MR. OCHOA-CRONFEL: I'm going to
23 object to the leading nature of the questions again,
24 Your Honor.
25 THE COURT: Sustained.
64
1 Q. (BY MR. SCARBOROUGH) Did you file a tax
2 return, even though we don't have a copy of it, Iowa
3 state income tax return for 2014 for the portion
4 of --
5 A. Yes, sir, I did.
6 Q. -- for the portion of the year that you
7 were there?
8 A. Yes, sir.
9 MR. SCARBOROUGH: Pass the witness.
10 CROSS-EXAMINATION
11 BY MR. OCHOA-CRONFEL:
12 Q. Ms. Landa, this lawsuit centers around
13 Mr. Farris providing some money that you used as a
14 down payment on a house that you purchased in Iowa.
15 Correct?
16 A. A house that was purchased in Iowa, yes.
17 Q. Okay. And you don't dispute that
18 Mr. Farris provided the money. Correct?
19 A. Absolutely not.
20 Q. Okay. So the big dispute is to what -- the
21 big dispute is as to whether or not the money was a
22 loan or a gift; isn't that correct?
23 A. Yes, sir.
24 Q. Okay. So beginning sometime in
25 December 2010 and going through at least February of
65
1 2011, you and Mr. Farris were having discussions over
2 the phone regarding his providing money for -- as a
3 down payment for the purchase of this house.
4 Correct?
5 A. Yes, sir.
6 Q. Okay. And some of those discussions took
7 place -- those communications, they took place via
8 e-mail, correct, some of them?
9 A. I would send him --
10 Q. Okay. And some of --
11 A. -- copies of --
12 Q. -- them took place over the telephone.
13 Correct?
14 A. I would send him e-mails of listings that I
15 saw.
16 Q. Okay. And some of them took place face to
17 face, i.e., Dallas. Correct?
18 A. Yes, sir.
19 Q. Okay. And some communications involved
20 correspondence in the form of e-mail between you,
21 Mr. Farris and third parties, such as realtors or
22 bank personnel. Correct?
23 A. Yes, sir.
24 Q. Okay. And throughout all of these contacts
25 between you and Mr. Farris, Mr. Farris was a resident
66
1 of Texas. Correct?
2 A. Yes, sir.
3 Q. Okay. And you were aware that Mr. Farris
4 was a resident of Texas. Correct?
5 A. Yes, sir.
6 Q. Okay. And you were aware that you were
7 obtaining funds that you would be using for a down
8 payment on the purchase of a house from a resident of
9 Texas. Correct?
10 A. He was -- yeah, he lives in Austin.
11 Q. Okay. In your discussions with Mr. Farris
12 regarding these funds, you represented to him -- did
13 you represent to him that his name would be on a
14 deed?
15 A. I was totally on board for that. That was
16 our agreement.
17 Q. Okay. But his name was stricken from the
18 deed regarding the house. Correct?
19 A. The house did not get what we -- his
20 name -- his name was scratched off on the deed.
21 Q. Okay. So ultimately on February 24th,
22 25th, there were two separate wire transfers from
23 Mr. Farris here in Texas to a bank in Iowa which
24 comprise the down payment on the house in Iowa; is
25 that correct?
67
1 A. That was part of the requirements from the
2 bank, was that we had a bank account there for the
3 transaction.
4 Q. So those two wires came in the form of --
5 the money came in the form of two wires from Texas in
6 February of 2011. Correct?
7 A. Yes. And the account was --
8 Q. And they came from my client who was a
9 Texas resident. Correct?
10 A. Yes. The account was --
11 Q. And the money came --
12 THE COURT: Okay. Guys?
13 MR. OCHOA-CRONFEL: I'm sorry.
14 THE COURT: You cannot talk over each
15 other --
16 MR. OCHOA-CRONFEL: Sorry.
17 THE COURT: -- if you want her to make
18 a record.
19 MR. OCHOA-CRONFEL: Sorry about that,
20 Your Honor.
21 MR. SCARBOROUGH: Were you saying
22 something?
23 A. The account was set up in both our names as
24 per the original application that we requested for
25 the loan.
68
1 Q. (BY MR. OCHOA-CRONFEL) And the money came
2 from Texas. Correct?
3 A. Yes, sir.
4 Q. Okay. And on February 28, 2011, thanks at
5 least in part to the money provided by Mr. Farris for
6 the down payment, you closed on the house. Correct?
7 A. Yes.
8 Q. Okay. Now, after you closed on the house,
9 you and Mr. Farris continued to have contact
10 regarding the transaction. Correct?
11 A. We -- we had constant contact through this
12 period.
13 Q. Okay.
14 A. And he knew that he wasn't going to have to
15 sign any documents.
16 Q. Okay. Well, he asked you about the closing
17 documents, didn't he?
18 A. He wanted -- yes, he asked for -- and I
19 sent him a copy.
20 Q. And in April 2011 you sent him a package
21 that you contend contained those closing documents in
22 response to those inquiries. Correct?
23 A. I sent him a copy of everything I had.
24 Q. Okay. And after you sent him that package,
25 you and Mr. Farris continued to have contact
69
1 regarding the transaction. Correct?
2 A. Yes.
3 Q. And that was regarding telephone -- by
4 telephone?
5 A. Telephone, e-mail, text.
6 Q. And. Now, he discussed with you paying
7 back that loan during that time, didn't he?
8 A. He only brought up payment for that loan
9 when I would not let him come see me because my
10 mother was terminally ill. And he would bring it up
11 as a threat.
12 Q. Okay. In May 2012 you traveled to Austin.
13 Correct?
14 A. Yes, sir, I did.
15 Q. Okay. And that trip was between May 9th
16 and May 13th. Correct?
17 A. Yes, sir.
18 Q. Okay. And during that trip you gave
19 Mr. Farris a check for $15,000; is that correct?
20 A. I did.
21 Q. Okay. And you characterized that money as
22 a gift from you. Correct?
23 A. He has -- I did not use that word, but he
24 has helped me in the past, and I was able to help him
25 and so I helped him as well.
70
1 Q. And you previously stated in your testimony
2 a few minutes ago that -- that he was having some
3 financial problems; is that correct?
4 A. That's what he told me.
5 Q. Okay. Now, you remember your deposition,
6 Ms. Landa. Correct?
7 A. Yes, sir.
8 Q. Day before yesterday.
9 A. Uh-huh.
10 Q. Okay. Do you remember stating in that
11 deposition that -- bear with me one second here.
12 You remember stating that my client
13 has plenty of money?
14 A. I stated that because that was a different
15 time. He -- from 2013 -- later he inherited, after
16 his mother passed away, and he told me he was doing
17 very well and buying other real estate in Austin.
18 Q. And in fact you know that my client has
19 never had trouble with money; isn't that correct?
20 A. I don't know exactly what Lee's finances
21 are, only what he tells me.
22 Q. Okay. So -- all right.
23 Court's indulgence.
24 Now, after Mr. Farris gave you that
25 check, you and Mr. Farris continued to have contact
71
1 regarding the transaction. Correct?
2 A. We had -- he was always calling me or
3 checking on me, yes.
4 Q. Okay. And he continued to ask you about
5 getting paid back on that loan, didn't he?
6 A. He would bring it up when I would not want
7 him to come to Iowa to see me.
8 Q. Now, in May 2013, you sent Mr. Farris a
9 note via the U.S. mail, didn't you?
10 A. Yes, I did.
11 Q. Okay. And that note, which was dated
12 May 29th -- and I'll show it to you if you need me
13 to -- 2013, thanked Mr. Farris for some money --
14 MR. SCARBOROUGH: Excuse -- excuse me.
15 He's talking about a piece of evidence that's not
16 been admitted yet. And I believe it's one of the
17 ones to which I have an objection because I believe
18 it goes to the merits of the case on whether it was a
19 gift or a loan, if it's what I'm thinking it is.
20 MR. OCHOA-CRONFEL: May I approach,
21 Your Honor?
22 THE COURT: Yes.
23 Are you going to mark it?
24 MR. OCHOA-CRONFEL: Yes. Yes, ma'am.
25 Well, I'll just put a number on it.
72
1 MR. SCARBOROUGH: What number is it?
2 MR. OCHOA-CRONFEL: No. 1, sir.
3 That's our first.
4 THE COURT: Any objection to 1?
5 MR. SCARBOROUGH: Yes.
6 MR. OCHOA-CRONFEL: Yes, Your Honor.
7 MR. SCARBOROUGH: I do have an
8 objection to 1.
9 THE COURT: Go ahead.
10 MR. OCHOA-CRONFEL: Okay. And --
11 THE COURT: No, no, no. What is the
12 objection?
13 MR. SCARBOROUGH: My objection is
14 relevance as to this hearing because this goes to
15 whether it was or was not a gift. It's not relevant
16 to this dispute. The time frame of this is May of
17 2013. And it's talking about whether -- this
18 literally goes to whether it was a loan or a gift.
19 THE COURT: Why is this relevant to
20 this hearing?
21 MR. OCHOA-CRONFEL: It's -- it's
22 relevant for two purposes, Your Honor: It's relevant
23 to show ongoing contacts as is required by the law,
24 contacts whether by mail, by phone, by e-mail, or by
25 personal appearance. So it goes to the minimum
73
1 contacts for jurisdictional purposes. But it's also
2 relevant, Your Honor, to show the credibility of the
3 witness or the lack thereof.
4 THE COURT: How much -- how much money
5 did he give her?
6 THE WITNESS: For the loan on the
7 house? $88,000.
8 THE COURT: Okay.
9 MR. OCHOA-CRONFEL: And, Your Honor,
10 further, the note -- this note references the
11 transaction that we're speaking about.
12 THE COURT: The objection is
13 overruled.
14 1 will be admitted.
15 (Plaintiff's Exhibit No. 1 admitted.)
16 MR. OCHOA-CRONFEL: Okay. May I
17 approach the witness, Your Honor?
18 THE COURT: Yes.
19 A. Thank you.
20 Q. (BY MR. OCHOA-CRONFEL) Okay. Now,
21 Ms. Landa, you're looking at Plaintiff's Exhibit
22 No. 1. Do you recognize that note?
23 A. Yes, sir, I do.
24 Q. And is that from you?
25 A. Yes, sir, it is.
74
1 Q. Okay. And that note references a -- that
2 note references an additional 15 -- 10,000-dollar
3 loan that you obtained from my client right around
4 that time; is that correct?
5 A. I'm not sure what that 10,000 represents.
6 Q. Okay.
7 A. It could -- it might have been something
8 other. I don't think that's the case.
9 Q. And it also -- it also references that you
10 paid my client $15,000 in 2012. Correct?
11 A. I wrote him a check for 15,000.
12 Q. Right. And nowhere does it say it's a
13 gift. Correct?
14 A. No, it doesn't say that.
15 Q. And it further says, at the bottom toward
16 the end, "I thank you for your love and support in my
17 life. I do not have figures from the house closing
18 with me from 2011 but hope that this will suffice."
19 Correct?
20 A. Uh-huh.
21 Q. All right.
22 MR. SCARBOROUGH: Let me remind you
23 not to say "uh-huh"; to speak audibly.
24 THE WITNESS: Yes, sir.
25 A. Yes, sir.
75
1 THE WITNESS: Thank you.
2 Q. (BY MR. OCHOA-CRONFEL) Now, after you sent
3 this note, you and Mr. Farris continued to have
4 contact regarding the transaction. Correct?
5 And when I say "the transaction," I'm
6 referring to the closing of the house and the loan of
7 the money. Correct?
8 A. We -- we talked, but it wasn't just about a
9 transaction.
10 Q. But you talked about that transaction and
11 that money. Correct?
12 A. We talked about a lot of things but, yes,
13 that was maybe something that he would bring up.
14 Q. Okay. And he continued to ask you to
15 get -- get paid back, didn't he?
16 A. He would bring up the money when there was
17 something that I wasn't doing to please him, or I
18 wasn't letting him come see me.
19 At the time this note is written, I've
20 just learned that our son is going to get married,
21 and I'm trying to do everything I can to be
22 supportive. And it's a very happy note, and that's
23 what was making me consider moving back to Texas, to
24 be part of this.
25 MR. OCHOA-CRONFEL: And I object to
76
1 the nonresponsiveness of the answer, Your Honor.
2 THE COURT: Sustained.
3 MR. OCHOA-CRONFEL: Okay.
4 Q. (BY MR. OCHOA-CRONFEL) My client, after
5 this time, at various periods in time, would ask you
6 to pay back the note. Correct?
7 A. Yes. He would bring up --
8 Q. All right.
9 A. -- a lot of things.
10 Q. And, in fact --
11 MR. OCHOA-CRONFEL: And I think you've
12 objected to this one, too, Mr. Scarborough, so we're
13 going to have to address that.
14 It's this text, the text. You
15 objected to the text. Right?
16 MR. POTTER: Which one is that?
17 MR. OCHOA-CRONFEL: Give me -- 144.
18 MR. SCARBOROUGH: Which one?
19 (Discussion off the record.)
20 MR. OCHOA-CRONFEL: It's this one.
21 MR. POTTER: What's the Bates number?
22 MR. OCHOA-CRONFEL: 150, sir.
23 MR. POTTER: 150.
24 MR. OCHOA-CRONFEL: You objected to
25 this. Correct?
77
1 MR. SCARBOROUGH: Yes.
2 MR. OCHOA-CRONFEL: Okay. May I
3 approach, Your Honor?
4 THE COURT: Yes.
5 Are you going to mark this?
6 MR. SCARBOROUGH: Give her the one
7 that's got the --
8 MR. OCHOA-CRONFEL: Oh, I'm so sorry.
9 I apologize, Your Honor.
10 THE COURT: That's okay.
11 Any objection to 2?
12 MR. SCARBOROUGH: Yes, Your Honor.
13 Again, you'll notice what the highlighted -- or I
14 assume it's highlighted. It's dated September the
15 30th of 2014. For the record, I will state -- we
16 haven't gotten there yet, but there was a demand
17 letter from Mr. Cronfel dated in late August. This
18 is after that fact. And it talks about -- it goes
19 only to the issue of merits of the case because he's
20 saying, I loaned you money. I'm supposed to be the
21 co-owner. That goes to his merits of the claim, but
22 it doesn't have anything to do with the hearing that
23 we're here for today.
24 I object to it on the basis of
25 relevance to today's hearing.
78
1 THE COURT: Mr. Ochoa-Cronfel?
2 MR. OCHOA-CRONFEL: Your Honor, it's
3 going to be the same argument I posed before. This
4 is another contact. Under the case law, this
5 constitutes a contact for jurisdictional purposes,
6 and it also impacts on the credibility of the
7 witness, Your Honor.
8 THE COURT: Overruled.
9 2 will be admitted.
10 (Plaintiff's Exhibit No. 2 admitted.)
11 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, I've --
12 you've been handed what's been marked as
13 Exhibit No. 2. And I'd like you to look at the
14 highlighted portion of the date of September --
15 September 30th, 2014. Do you see that there?
16 A. Yes, sir.
17 Q. Okay. And can you read out -- and this is
18 from my client, Mr. Farris. Correct?
19 A. Yes, sir.
20 Q. Okay. Can you read to the Court what it
21 says?
22 A. "Don't even go there. You did send or gave
23 me a check for 15,000 and I loaned you back 10.
24 Don't make me out to be the bad guy. I've done
25 everything to help you and all I get is the wrath of
79
1 Karen. All I did was take" and I'm -- it cuts off on
2 the transcript.
3 Q. Okay. Ms. Landa, I'm sorry but you didn't
4 read the part I was asking you to. It's the second
5 one where it's --
6 A. Oh, okay.
7 Q. -- September 30th, 2014, ma'am.
8 A. "There is no need for us to talk because we
9 can't. All I get is verbal abuse. The fact is that
10 I loaned you large sum of money to buy a house that I
11 was supposedly co-owner. You said you would pay me
12 back when your mom" -- and it cuts off.
13 Q. Okay. Thank you.
14 So, in fact, you and Mr. Farris had
15 numerous contacts in person, via e-mail, via phone,
16 via text, via regular mail over the course of
17 approximately the last five years regarding this
18 transaction in which he provided you money for the
19 down payment on the house; isn't that correct?
20 A. We talked about a lot of things, not just
21 about the house. The only time he brought it up is
22 when he was upset that I didn't want to see him or
23 have anything to do with him. And he used it as a
24 way to get me upset.
25 Q. Now, Ms. Landa, you lived and worked in
80
1 Austin, Texas, for the better part of the last 20
2 years. Correct?
3 A. Yes, sir.
4 Q. Okay. Well, you -- and you only lived in
5 Iowa from November 2010 through July -- through
6 July 2013, and May 2014 to the present. Correct?
7 A. I grew up in Iowa.
8 Q. That was not my question, ma'am.
9 A. Okay.
10 Q. Shall I try it again?
11 A. Will you, please --
12 Q. Yeah.
13 A. -- restate the question?
14 Q. Okay. During the last 20 years, let's just
15 put it that way, you only lived in Iowa from
16 November 2010 through July 2013. Let's start with
17 that. Is that correct?
18 A. Yes, sir.
19 Q. Okay. And after that, from May 2014 to the
20 present; is that correct?
21 A. Yes, sir.
22 Q. Okay. All right.
23 Now, you've held an insurance license
24 with the Texas Department of Insurance from
25 April 1987 to the present; isn't that correct?
81
1 A. Yes, sir.
2 Q. Okay. And, in fact, as recently -- and I
3 think you testified to this before. As recently as
4 January 2014, you were working on getting insurance
5 quotes from my client, Mr. Farris, correct, here in
6 Texas?
7 A. He asked for me to prepare an insurance
8 proposal for him, and I did.
9 Q. Okay. So the answer is yes?
10 A. Yes.
11 Q. Okay. And you were doing business in
12 Westlake as Karen Landa Insurance during 2014.
13 Correct?
14 A. I opened up my agency December 1st, 2013.
15 Q. And, in fact, as recently as May 2014 and
16 August -- and August 2014, you were a member and/or
17 sponsor of the Westlake Hills Chamber of Commerce.
18 Correct?
19 A. I joined the Westlake Hills Chamber of
20 Commerce when I was hired by American National
21 Insurance as part of my marketing strategy to try to
22 build an agency that was to be opened.
23 Q. So what I stated is true. Correct?
24 A. I'm not sure what you're referring to is in
25 print. I'm not sure what it is that you're asking
82
1 me, but I did join the Chamber of Commerce for
2 Westlake.
3 Q. And that would be May of -- May of 2014 and
4 August of 2014. Correct?
5 A. No. No, sir. I joined it back in 2013
6 when I took the position.
7 Q. Let me ask the question again.
8 In fact, as recently as May of 2014
9 and August of 2014, you were a member and/or sponsor
10 of the Westlake Hills Chamber of Commerce. Correct?
11 A. I joined the Westlake Hills Chamber of
12 Commerce in the fall of 2013 and it was a 12-month
13 payment that I made as a member. I no longer
14 participated, but because I paid an additional amount
15 of money, I think they used my name for promotions
16 that they may have had, but I was not here.
17 Q. Ms. Landa, do you remember responding to a
18 set of discovery from my client?
19 Do you remember responding to a set of
20 discovery from my client?
21 A. Yes, sir.
22 Q. And it -- and it included requests for
23 admissions? Do you remember that?
24 A. Yes, sir.
25 Q. And one of the admissions was that --
83
1 MR. SCARBOROUGH: Which one are you
2 talking about?
3 MR. OCHOA-CRONFEL: I'm talking about
4 No. 14.
5 Q. (BY MR. OCHOA-CRONFEL) And as recently
6 as -- and I'll read it to you. Request for Admission
7 14, Please admit that as recently as 2014, Karen
8 Landa Insurance was a member of and a sponsor of the
9 Westlake Hills Chamber of Commerce.
10 MR. SCARBOROUGH: Wait. Wait. That
11 was misread.
12 What it says is, to admit that as
13 recently as 2014, Landa Insurance, Karen Landa, was a
14 member of and/or a supporter of the Westlake Hills
15 Chamber of Commerce, not both.
16 MR. OCHOA-CRONFEL: Right. That's
17 what I said.
18 Q. (BY MR. OCHOA-CRONFEL) Do you remember
19 admitting to that?
20 A. Yes. I signed up for a year membership in
21 2013.
22 Q. Okay. Thank you.
23 Now, in the many years you spent
24 living and working in Austin, you've also worked with
25 a number of nonprofit groups here; isn't that
84
1 correct?
2 A. Yes, sir.
3 Q. And one of those groups was Austin Hospice
4 Community Foundation, and you were on the board of
5 directors. Correct?
6 A. Yes, sir.
7 Q. And you were also a docent of the Texas
8 Governor's Mansion. Correct?
9 A. Yes, sir.
10 Q. Okay. Now, you are also the beneficiary of
11 a marital trust that's here in Texas. Correct?
12 A. Yes, sir.
13 Q. Okay. And that trust is out of Frost Bank.
14 Correct?
15 A. They're my trustee.
16 Q. Yeah. And you've been receiving monthly
17 disbursement from that trust of Frost Bank here in
18 Texas for a number of years. Correct?
19 A. That was set up per my husband's will.
20 Q. Is that correct?
21 A. Yes, sir.
22 Q. Okay. And you've been receiving it,
23 notwithstanding the fact that you're in Iowa -- when
24 you live in Iowa. Correct?
25 A. It doesn't matter where I am; I get the
85
1 distribution.
2 Q. And you will continue to receive the
3 monthly disbursement from that trust here in Texas at
4 Frost Bank until you die. Correct?
5 A. Yes, sir.
6 Q. Okay. Now, you have a cell phone number --
7 current cell phone number that has an Austin area
8 code. Correct?
9 A. Yes, sir.
10 Q. Okay. And you've had that same telephone
11 number for quite a while. Correct?
12 A. I've kept that because that's how I keep
13 in -- that's how people know me. That's how I list
14 it on credit cards or any kind of business.
15 Q. All right. Ms. Landa, real quick, I want
16 to draw your attention to the special appearance you
17 filed in this matter.
18 MR. OCHOA-CRONFEL: Your Honor, may I
19 approach?
20 THE COURT: Yes.
21 MR. OCHOA-CRONFEL: I would like the
22 Court to take judicial notice of this pleading. And
23 I guess I better mark it because I'm going to use it
24 as an exhibit.
25 MR. SCARBOROUGH: Your Honor, I don't
86
1 think our special appearance should be an exhibit
2 because it's part of the Court's record. It's --
3 without ever being admitted as a --
4 THE COURT: This is your special
5 appearance?
6 MR. SCARBOROUGH: It's my --
7 THE COURT: I can just take judicial
8 notice of it. It's in the record.
9 MR. OCHOA-CRONFEL: Okay.
10 Q. (BY MR. OCHOA-CRONFEL) Now, let's look,
11 amongst the other things -- let's look at Paragraph
12 2-b. Okay? And it says here in 2-b, "Defendant does
13 not now engage and has not engaged in business in
14 Texas or committed any tort, in whole or in part,
15 within this state."
16 Did I read that correctly?
17 A. Yes, sir.
18 Q. That's not true, is it?
19 A. No -- the business that's referred to here
20 is this lawsuit.
21 Q. Okay. And you -- you swore to this.
22 There's a -- if we turn to the second to the last
23 page, ma'am.
24 A. Yes, sir.
25 Q. Let's go back over that. That's your
87
1 signature on the verification. Correct?
2 A. Yes, sir.
3 Q. Okay.
4 A. I'm not an attorney, but this -- this
5 business, I thought it was --
6 Q. Ma'am, I --
7 A. -- I thought it referred to the lawsuit,
8 sir.
9 Q. Now, we've discussed a plethora of ways in
10 which you've done business in Texas, correct, today?
11 A. Yes, sir.
12 Q. Now, let's look at 2-d, "Defendant has no
13 substantial connection with Texas arising from any
14 action or conduct of defendant purposefully directed
15 toward Texas."
16 Did it read that correctly?
17 A. Yes, sir.
18 Q. Okay. And that -- that's not true, is it?
19 A. That is true, sir.
20 Q. Okay.
21 A. What is my -- I mean, what is my
22 substantial connection?
23 Q. We'll just leave that -- we'll just leave
24 that the way it is.
25 Let's go to E. Okay. We're just
88
1 about done here, Ms. Landa. I just want to touch on
2 a couple other things.
3 Now, you remember testifying -- well,
4 let me ask you this question: Has Mr. Farris ever
5 loaned you money?
6 A. He has helped me when I needed help and he
7 was able to do so, so yes. He's helped -- he's given
8 me money in the past.
9 Q. Okay. But has it been -- in your opinion,
10 has it been in the form of a loan, or of a gift?
11 A. They were gifts.
12 Q. So is it your testimony that none of the --
13 none of the money that Mr. Farris has given you --
14 MR. SCARBOROUGH: Objection, Your
15 Honor. Now we're really going far afield because now
16 we're talking about money that's not related to this
17 lawsuit. And the plaintiff, by his own admission, is
18 suing the defendant for the money that was related to
19 the purchase and acquisition of the Iowa property.
20 He's now talking about other money
21 that's not even related to this lawsuit. I object to
22 it on the basis of relevance.
23 THE COURT: Mr. Ochoa-Cronfel?
24 MR. OCHOA-CRONFEL: Your Honor, this
25 goes directly to credibility. And the reason why
89
1 this is important is because she has testified in her
2 deposition that all of the money that my client gave
3 her was in the form of gifts. And I'm going to
4 impeach her about that because I have evidence that I
5 want to submit that will show directly otherwise.
6 MR. SCARBOROUGH: And, again, that
7 evidence has to do with money that he gave her from
8 March of -- March of 2010?
9 MR. POTTER: Yes.
10 MR. SCARBOROUGH: -- March of 2010
11 through July of 2010. I believe that's correct.
12 And that's -- and it's not involved --
13 that -- that money is not involved in this
14 litigation. I object to it, Your Honor.
15 MR. OCHOA-CRONFEL: Your Honor,
16 Ms. Landa has testified that all of the money my
17 client has given her has been a gift. My client
18 testifies the very opposite. Those go to the
19 operative facts on the ground that relate to the
20 jurisdictional issues in this case and also go to
21 credibility.
22 THE COURT: I'm going to overrule the
23 objection.
24 I'm going to -- we're going to take a
25 break. I'll let y'all know both of y'all are at 47
90
1 minutes, so that gives you about 28 minutes.
2 MR. OCHOA-CRONFEL: I'm sorry, Your
3 Honor; I didn't hear that last part.
4 THE COURT: Y'all are at 47 minutes.
5 MR. OCHOA-CRONFEL: Okay.
6 THE COURT: So y'all -- each one has,
7 if I'm counting that right -- that's 28 minutes.
8 MR. OCHOA-CRONFEL: Yes, ma'am.
9 THE COURT: Okay. We'll take a
10 15-minute break.
11 MR. OCHOA-CRONFEL: Thank you.
12 THE WITNESS: Thank you.
13 (Recess taken.)
14 THE COURT: You may proceed.
15 MR. OCHOA-CRONFEL: Thank you, Your
16 Honor.
17 May I approach?
18 THE COURT: Yes.
19 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, I'm
20 handing you what's been marked as Exhibit No. 4.
21 MR. SCARBOROUGH: For the record, I
22 assume -- does this include all four checks?
23 MR. OCHOA-CRONFEL: Yes, sir.
24 MR. SCARBOROUGH: For the record, I'm
25 objecting to these, Your Honor, because you'll note
91
1 that the date on them is from March of 2010 through
2 July of 2010. They involve loans -- alleged loans
3 which the defendant will testify is different. They
4 weren't loans. But it -- but by the plaintiff's own
5 admission, they are not involved and are not being
6 sued on in this lawsuit. So we object to them for
7 that purpose.
8 THE COURT: What's the relevance of
9 these?
10 MR. OCHOA-CRONFEL: Your Honor, the
11 relevance of these are, again, to show continuous
12 contacts for general --
13 THE COURT: These are from 2010?
14 MR. OCHOA-CRONFEL: Right.
15 THE COURT: So I think that these
16 are -- I mean, I think she's already testified to
17 this. If you want to spend, you know, the next 28
18 minutes showing me more checks, that's fine. But I
19 don't think that this is necessary, unless we have
20 something else that's different.
21 MR. OCHOA-CRONFEL: This -- this was
22 really just for purposes of credibility with regard
23 to the issue that all my -- all the money that my
24 client provided to the defendant is gifts. That's
25 it.
92
1 I was going to ask one or two
2 questions, and I'm going to be done.
3 THE COURT: Okay. Overruled.
4 What number do you have?
5 MR. OCHOA-CRONFEL: No. 4, Your Honor.
6 THE COURT: 4 will be admitted.
7 (Plaintiff's Exhibit No. 4 admitted.)
8 Q. (BY MR. OCHOA-CRONFEL) Ms. Landa, do you
9 recognize all four checks that are comprised of
10 Deposition [sic] Exhibit No. 4?
11 A. Yes, sir.
12 Q. Okay. And these checks were checks from my
13 client -- of monies from my client to you. Correct?
14 A. Yes, sir.
15 Q. Okay. And in the memo part, what does it
16 say in each one of these checks?
17 A. Loan.
18 Q. Okay. All right.
19 One last question; Ms. Landa, it is --
20 is it unreasonable to believe that Mr. Farris, who
21 provided you approximately $90,000 for the down
22 payment on the house, didn't expect to get that paid
23 back --
24 MR. SCARBOROUGH: Objection;
25 relevance. What his expectations were has nothing to
93
1 do with whether this court does or does not have
2 jurisdiction.
3 THE COURT: Sustained.
4 MR. OCHOA-CRONFEL: No more questions,
5 Your Honor. Pass the witness.
6 THE COURT: Can I ask you a question?
7 What -- the money, was it transferred to -- how --
8 how did that happen? What was the actual --
9 THE WITNESS: He wired it to an
10 account, and I had sent him the information, like,
11 for a signing card, you know --
12 THE COURT: Okay.
13 THE WITNESS: -- for a checking
14 account. The bank did a line of credit note and they
15 wanted the funds transferred to their -- in the bank.
16 THE COURT: That's fine.
17 Anything else, Mr. Scarborough?
18 REDIRECT EXAMINATION
19 BY MR. SCARBOROUGH:
20 Q. Just a couple of questions with regard to
21 that -- Plaintiff's Exhibit I believe 4, those
22 checks.
23 A. Yes, sir.
24 Q. Did you consider those checks, when that
25 money was provided to you, to be a loan?
94
1 A. No, I did not.
2 Q. Why not?
3 A. Because he never brought it up, or never
4 asked for payment about it, or made any reference to
5 it. When he did things like this, it was usually
6 with a -- he wanted to be close to me. The
7 motivation was to have access to me. He might want a
8 sexual favor. But there was always another intention
9 behind this -- this money that he would give me.
10 Q. Okay. And did that money at all have
11 anything to do with the closing in -- that took place
12 in February of 2011, on the Iowa property?
13 A. It had nothing to do with the transaction
14 on the condo.
15 MR. SCARBOROUGH: No further
16 questions.
17 THE COURT: Anything else,
18 Mr. Ochoa-Cronfel?
19 MR. OCHOA-CRONFEL: No, Your Honor.
20 THE COURT: Okay. You may step down.
21 MR. SCARBOROUGH: The defendant rests.
22 THE COURT: Mr. Ochoa-Cronfel?
23 MR. OCHOA-CRONFEL: Yes, Your Honor,
24 I'm going to call Mr. Lee Farris to the stand.
25 THE COURT: Mr. Farris, come on up.
94
1 A. No, I did not.
2 Q. Why not?
3 A. Because he never brought it up, or never
4 asked for payment about it, or made any reference to
5 it. When he did things like this, it was usually
6 with a -- he wanted to be close to me. The
7 motivation was to have access to me. He might want a
8 sexual favor. But there was always another intention
9 behind this -- this money that he would give me.
10 Q. Okay. And did that money at all have
11 anything to do with the closing in -- that took place
12 in February of 2011, on the Iowa property?
13 A. It had nothing to do with the transaction
14 on the condo.
15 MR. SCARBOROUGH: No further
16 questions.
17 THE COURT: Anything else,
18 Mr. Ochoa-Cronfel?
19 MR. OCHOA-CRONFEL: No, Your Honor.
20 THE COURT: Okay. You may step down.
21 MR. SCARBOROUGH: The defendant rests.
22 THE COURT: Mr. Ochoa-Cronfel?
23 MR. OCHOA-CRONFEL: Yes, Your Honor,
24 I'm going to call Mr. Lee Farris to the stand.
25 THE COURT: Mr. Farris, come on up.
95
1 Mr. Farris, can I have you raise your
2 right hand.
3 (The witness was sworn.)
4 THE COURT: Please have a seat, sir.
5 (Discussion off the record.)
6 THE COURT: You may proceed.
7 MR. OCHOA-CRONFEL: Thank you, Your
8 Honor.
9 CHARLES LEE FARRIS,
10 having been first duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. OCHOA-CRONFEL:
13 Q. Can you please state your name for the
14 record?
15 A. Charles Lee Farris.
16 Q. Okay. And, Mr. Farris, where do reside?
17 A. , Austin, Texas.
18 Q. And how long have you resided in Austin,
19 Texas?
20 A. Since 1976.
21 Q. Okay. Mr. Farris, what do you do for a
22 living?
23 A. I have a brick business and a service
24 company which I do various number of things for new
25 construction homes.
96
1 Q. Okay. How do you know the defendant, Karen
2 Landa?
3 A. I know her from -- known her since 1981, I
4 guess.
5 Q. And what -- what has been your relationship
6 with her?
7 A. Well, we met in 1981, and we got married,
8 had a couple of kids.
9 Q. Okay.
10 A. I think that's -- that was in '85 -- '84
11 and '85 on the children.
12 Q. Did you get divorced?
13 A. We did get divorced in '91.
14 Q. Okay. And how would you describe your
15 relationship with her since the divorce?
16 A. It's been a fairly good relationship.
17 We've stayed in contact because of the children, and
18 we've gotten along.
19 Q. Why are we here today, Mr. Farris?
20 A. Well, I loaned her some money for a down
21 payment on a house, and she's refused to pay me back,
22 and now we're in court.
23 Q. Okay. Can you describe the circumstances
24 under which you came to loan this money to Ms. Landa
25 to the Court, please?
97
1 A. She was in Iowa at the time, and she was
2 taking care of her mom. She was living in her mom's
3 house, and she did not want to stay there. She was
4 having a difficult time living with her mom.
5 She had talked -- we had talked. We
6 continually were talking about things, but she wanted
7 to get her own place. And this is when she
8 approached me as far as the meeting in Dallas, wanted
9 to hook up and let's talk about things.
10 Q. Okay. When did this meeting in Dallas
11 occur?
12 A. December 17th, 2010.
13 Q. 2010. And was -- was it at that meeting in
14 Dallas that you understood for the first time that
15 she was seeking money for a down payment on this
16 house?
17 A. That's -- that's when we talked about --
18 yes.
19 Q. Okay. And did you reach an agreement with
20 Ms. Landa with regard to her request for this money?
21 A. We did. We did.
22 Q. Can you tell the Court what the terms of
23 that agreement were?
24 A. The agreement was that I would provide the
25 down payment. There was no specific property, but
98
1 she was looking at property. And I would provide the
2 down payment as long as I was on the deed. It was
3 going to be a loan, to be paid back, as long as I was
4 on the deed.
5 Q. Okay. And how were you going to get paid
6 back?
7 A. She promised me she would pay me back on
8 the death of her mom because she had a 150,000-dollar
9 life insurance policy on her mom.
10 Q. Okay. And I think you testified that
11 around that time her mom was ill when she visited
12 with you in Dallas?
13 A. That is correct.
14 Q. Okay. All right. So did you agree to loan
15 her that money?
16 A. At that point in time we agreed on the
17 conditions of it, yes.
18 Q. Did you know how much the money -- how
19 much -- what the amount the money was going to be at
20 that time?
21 A. At that time, no.
22 Q. Okay. Why is that?
23 A. I don't think she had found a specific
24 piece of property that she was going to purchase.
25 Q. Okay. So when you left -- when you-all
99
1 parted ways that weekend, what was your
2 understanding?
3 A. My understanding was she was going to go
4 back to Iowa. She had been looking at some property.
5 I wasn't sure which property she was looking at. But
6 she was going to go back to Iowa and try to find a
7 piece of property that she wanted to live in.
8 Q. Okay. Did you have contact with her soon
9 thereafter?
10 A. Yes.
11 Q. How soon?
12 A. The next day.
13 Q. And what did that contact consistent of?
14 A. I think she had found a piece of property
15 that the bank had control of, and it needed to be
16 finished.
17 Q. How was that communication made to you?
18 A. On the phone.
19 Q. Okay.
20 A. And e-mail.
21 Q. Okay. And what was contained in the
22 e-mail?
23 A. I believe she was stating that she had
24 found a piece of property. It was a townhome.
25 Q. The --
100
1 A. It was not finished.
2 MR. OCHOA-CRONFEL: Did you object to
3 this? Let me show you.
4 MR. SCARBOROUGH: What is it?
5 MR. OCHOA-CRONFEL: It's Landa 006.
6 MR. SCARBOROUGH: Yeah.
7 MR. OCHOA-CRONFEL: You did?
8 MR. SCARBOROUGH: I did.
9 MR. OCHOA-CRONFEL: Okay. May I
10 approach, Your Honor?
11 THE COURT: Yes.
12 MR. SCARBOROUGH: Your Honor, on this
13 one, as in most of the things I argue about is -- my
14 objection is relevance to today's hearing. It's an
15 e-mail from Ms. Landa to Mr. Farris -- Ms. Taylor,
16 excuse me -- talking about the price and things of
17 that. It just doesn't have anything to do with
18 today's hearing.
19 We object to it for relevance.
20 THE COURT: Why is this relevant?
21 MR. OCHOA-CRONFEL: Your Honor, this
22 is a contact. It's a contact as is required under
23 the case law to permit jurisdiction over the
24 individual defendant.
25 THE COURT: I'm going to sustain that
101
1 objection.
2 MR. OCHOA-CRONFEL: Okay.
3 Q. (BY MR. OCHOA-CRONFEL) So, Mr. Farris, did
4 you have any other contacts besides that contact in
5 that e-mail with Ms. Landa after -- after that
6 e-mail?
7 MR. SCARBOROUGH: Objection to the
8 form of that question because it implies something
9 that's not in evidence.
10 THE COURT: Overruled.
11 A. Yes.
12 Q. (BY MR. OCHOA-CRONFEL) Okay. And what did
13 those contacts consistent of, and what were they
14 about?
15 A. It consisted of the house she was looking
16 at, and we stayed in contact about the decorating,
17 and what needed to be finished, and when the house --
18 when it was going to close, and things of that
19 nature, pertaining to the house.
20 Q. Okay. And for how long did these contacts
21 continue?
22 A. Up until the closing. Up until the
23 closing.
24 Q. Okay. Mr. Farris, I'm handing you what's
25 been marked as Exhibits 6 and 7. Can you please
102
1 identify those exhibits?
2 MR. SCARBOROUGH: No objection, for
3 the record.
4 A. Those are bank statements.
5 THE COURT: 6 and 7 will be admitted.
6 (Plaintiff's Exhibits Nos. 6 and 7
7 admitted.)
8 Q. (BY MR. OCHOA-CRONFEL) Okay. And are
9 those your bank statements?
10 A. They are my bank statements.
11 Q. And what do those bank statements reflect?
12 A. They reflect a wiring of money up to
13 Bankers Trust in Iowa.
14 Q. Okay. And let's look at No. 6 there. How
15 much does that -- and that's the wiring of the
16 $22,179.86. Correct?
17 A. Correct.
18 Q. Okay. And then if we look at the next one;
19 I believe it's No. 7. We go to Page 3 of that. That
20 reflects a wiring of what, two-thirds -- three --
21 two-thirds of the way down? Page 3 of No. 7.
22 A. Oh, that would be $87,000.
23 Q. Are you sure? Look that number.
24 A. Oh, I'm sorry. 67,000.
25 Q. Okay. So you wired 22,000-something
103
1 plus -- and 67. About approximately $89,000?
2 A. That is correct.
3 Q. Okay. From Texas to Iowa?
4 A. That is correct.
5 Q. Okay. Now, did this -- did the closing on
6 the purchase of the property in Iowa -- the townhome
7 in Iowa occur?
8 A. Yes, it did.
9 Q. Okay. Now, did you have contacts with
10 Ms. Landa after the closing?
11 A. I did.
12 Q. And what did those contacts consist of?
13 A. Mainly I wanted to get copies of the
14 closing papers, the closing costs of the townhome.
15 Q. Okay.
16 A. I wanted them for my records.
17 Q. And how did you communicate with Ms. Landa
18 about getting those closing documents?
19 A. By phone. I don't think I said -- we were
20 talking maybe over the phone.
21 Q. Okay. And what did you -- did she provide
22 those documents to you upon your request?
23 A. Did not.
24 Q. What did you have to do?
25 A. I continually kept asking her about the
104
1 closing papers. I wanted to see copies of the
2 closing papers.
3 Q. And did you finally get them?
4 A. Finally got an abstract with a warranty
5 deed as a cover letter, which was not what I
6 requested.
7 Q. Okay.
8 A. I requested the closing papers on the
9 house.
10 MR. OCHOA-CRONFEL: There's an
11 objection to this, Your Honor.
12 MR. SCARBOROUGH: Is this one
13 exhibit or two? It's just the --
14 MR. OCHOA-CRONFEL: It's the big one
15 along with the warranty deed.
16 MR. SCARBOROUGH: Right. That's all
17 one exhibit?
18 MR. OCHOA-CRONFEL: Yes, sir.
19 MR. SCARBOROUGH: Your Honor, again,
20 my objection to this is that this is the material
21 that was mailed to him. And if you'll turn to the
22 second page, the relevance I think that they want to
23 argue is that this shows evidence of fraud because
24 his name is stricken on the warranty deed.
25 There's no evidence that my client did
105
1 that. In fact, she's testified she didn't do it.
2 And it goes to the merits of the case of whether this
3 is a -- this is a loan, as the plaintiff says, or
4 whether it's a gift as the defendant said. I don't
5 think it has any bearing on today's hearing.
6 I object to it for relevance.
7 MR. OCHOA-CRONFEL: Your Honor, I'm
8 not using it to show the fraud. I'm not going to the
9 merits. That's not my purpose.
10 My purpose is to show contacts as
11 required under the case law. Contacts -- this does
12 constitute a contact when communicating with my
13 client over U.S. mail and sending closing documents
14 related to the purchase of the property for which he
15 provided the loan.
16 So this shows continuous systematic
17 contacts --
18 THE COURT: Overruled.
19 8 will be admitted.
20 (Plaintiff's Exhibit No. 8 admitted.)
21 Q. (BY MR. OCHOA-CRONFEL) Okay. All right.
22 So, Mr. Farris, can you please identify
23 Exhibit No. 8?
24 A. This is a copy of the envelope that this
25 abstract came in. This is not really what I
106
1 requested, but this is what was sent after three
2 months of me continually asking for closing papers.
3 Q. Okay. And did that include a copy of the
4 warranty deed?
5 A. It has a copy of the warranty deed on it,
6 yes.
7 Q. Okay. All right. And when you -- when you
8 saw that warranty deed, how -- how did you feel?
9 A. I -- I mean, the wind was just kind of let
10 out of my sails on the whole deal because --
11 MR. SCARBOROUGH: Objection to the
12 relevance of how he felt when he saw the deed because
13 it goes to the merits of the case.
14 THE COURT: Sustained.
15 Q. (BY MR. OCHOA-CRONFEL) Okay. And after
16 you received this, did you continue to have
17 communications with Ms. Landa?
18 A. Yes.
19 Q. What were those communications in the form
20 of, generally? How were you communicating with her?
21 A. Well, after receiving that, the main
22 communication was, What happened? Why am I not on
23 this deed?
24 Q. Okay.
25 A. Why am I not on the title?
107
1 Q. Okay. All right. Can you please identify
2 Exhibit No. 9?
3 A. This is a check received from Karen.
4 Q. Okay.
5 MR. OCHOA-CRONFEL: May I offer it in
6 evidence, Your Honor?
7 MR. SCARBOROUGH: No -- no objection.
8 THE COURT: No. 9 will be admitted.
9 (Plaintiff's Exhibit No. 9 admitted.)
10 MR. OCHOA-CRONFEL: I don't think I
11 offered No. 8.
12 THE COURT: You did. I already
13 introduced it.
14 MR. OCHOA-CRONFEL: Okay. Thank you,
15 Your Honor.
16 Q. (BY MR. OCHOA-CRONFEL) I'm sorry,
17 Mr. Farris; can you --
18 A. This is a check that Karen brought to me as
19 a partial payment on the down payment that I loaned
20 her on the house.
21 Q. Now, you heard her testify during her
22 testimony that this was not a payment but this was a
23 gift to you.
24 A. That is ridiculous. No, it was not.
25 Q. Okay. Were you in financial trouble at the
108
1 time that you got this money?
2 A. Absolutely not.
3 Q. Okay. All right. And when she gave this
4 to you, did she send it to you by mail? Did she hand
5 it to you? What were the circumstances of that?
6 A. We had talked over the phone and she said
7 she was coming to Austin and she had a check for me.
8 Q. Okay. And she handed you that check?
9 A. She came to my house and had a check for
10 me.
11 Q. Okay. All right. And you said she came to
12 Austin. What did she come to Austin for?
13 A. She came for a birthday party, I believe.
14 Q. For a party?
15 A. Yes.
16 Q. Okay. Now, after you got this check, did
17 you have -- continue having communications with
18 Ms. Landa?
19 A. I did.
20 Q. What did those -- what form did those
21 communications take? Telephone?
22 A. Well, I received the check, but at that
23 point in time I was hoping that it was going to be
24 for more. It was not anywhere close to what she had
25 owed me, so ...
109
1 Q. But what I asked you, Mr. Farris, was after
2 you received the check --
3 A. Yes.
4 Q. -- I understand you were disappointed about
5 the check. But after you received the check, did you
6 continue, thereafter in time, to have communications
7 with Ms. Landa?
8 A. Yes. Yes.
9 Q. In what form were those communications?
10 A. By phone normally.
11 Q. Okay. And what were you talking about when
12 you talked to her over the phone?
13 A. Usually it was by e-mail. It was mainly
14 where is the rest of the money for the down
15 payment --
16 Q. Okay.
17 A. -- on the house.
18 Q. And --
19 A. But this was continual.
20 Q. Okay. And had you expected to be paid by
21 then?
22 A. Yes.
23 Q. Why?
24 A. Because her mom had passed and she promised
25 me that in that passing that I would be paid back.
110
1 Q. And you would be paid back from what?
2 A. The loan of the money --
3 Q. Okay.
4 A. -- on the house.
5 Q. All right. Now, here we are, May of 2012,
6 you get a check. You have communications with her
7 afterwards. Ms. Landa comes -- and she previously
8 testified that she came to visit in 2013?
9 A. That is true.
10 Q. Okay. And did you see her when she came to
11 visit in 2013?
12 A. I did.
13 Q. Okay. Did you-all talk about the loan in
14 2013?
15 A. Yes.
16 Q. Okay.
17 A. We did.
18 Q. Okay. Were you still asking to be paid
19 back?
20 A. Yes.
21 Q. Okay. And when she left to go back to Iowa
22 after that week visit in 2013, did you -- did you
23 have any communications with her?
24 A. Yes.
25 Q. Okay. And what -- what did those
111
1 communications consist of?
2 A. Well, we talked about her coming back to
3 Austin. She wanted to move back to Austin. It was
4 her home. That's where she wanted to be. And she --
5 that week she had an interview, but she went back to
6 sell her house.
7 Q. Okay. And did you talk about the loan?
8 A. Yes.
9 Q. Okay. And did she sell her house?
10 A. She did.
11 Q. Okay. What happened when she sold her
12 house?
13 A. She moved to Austin.
14 Q. And were you involved in that move in any
15 way?
16 A. I did help her move. Correct.
17 Q. Okay. And --
18 THE COURT: So she sold the house that
19 you gave her money --
20 THE WITNESS: Escalade Court, yes.
21 THE COURT: Okay.
22 Q. (BY MR. OCHOA-CRONFEL) And after she sold
23 the house, she moved. Did you have discussions with
24 her about paying you back?
25 A. I did.
112
1 Q. Okay. And what was her response?
2 A. That she would -- she would pay me back
3 when the house sold, that -- out of that money
4 because she had already spent all the money from the
5 inheritance -- or the life insurance policy of her
6 mom.
7 MR. SCARBOROUGH: Again, Your Honor,
8 this -- all of this testimony about the life
9 insurance and about this goes to the merits of the
10 case, and we're not trying that today.
11 Object to it on -- based on relevance.
12 THE COURT: Sustained.
13 Q. (BY MR. OCHOA-CRONFEL) Okay. So did --
14 did you continue to have communications after she
15 moved to Austin in 2013, July 2013, after she sold
16 the house?
17 A. We did.
18 Q. Okay. Did she pay you?
19 A. No.
20 Q. Okay. And she was here from, she
21 testified, from June, July or August of 2013 through
22 April of 2014. Correct?
23 A. Right. She lived with --
24 Q. Did you-all -- did you see her while she
25 was here?
113
1 A. Yes.
2 Q. Okay. And did you all spend any time
3 together?
4 A. We did.
5 Q. Okay. And when you -- can you describe to
6 the Court -- did y'all have communications --
7 A. We had --
8 Q. -- during that time about your loan?
9 A. -- we had communications on a daily basis.
10 Q. Did you talk about the loan?
11 A. We did. But every time I'd bring it up,
12 she would throw a fit.
13 MR. SCARBOROUGH: Again, Your Honor,
14 we're continuing -- this goes --
15 THE COURT: Sustained.
16 MR. SCARBOROUGH: -- to the merits of
17 the --
18 THE COURT: Sustained.
19 Q. (BY MR. OCHOA-CRONFEL) Okay. All right.
20 Now, the testimony is that in April of 2014 she left
21 and went back to Iowa, right, more or less?
22 A. What day?
23 Q. April of 2014.
24 A. That's true.
25 Q. Okay.
114
1 A. True.
2 Q. Okay. Did you have communications with her
3 up and to that point about --
4 A. A couple months before she moved, we -- I
5 hadn't talked with her. I didn't know she was
6 moving. She didn't tell anybody she was moving.
7 Q. All right. So up -- would it be fair to
8 say that up and to this day you've had communications
9 with her about getting your loan paid back?
10 A. Yes.
11 Q. Okay. Do you have anything else you want
12 to tell the Court, Mr. Farris?
13 A. That's pretty much it.
14 MR. OCHOA-CRONFEL: Pass the witness.
15 THE COURT: Mr. Scarborough?
16 MR. SCARBOROUGH: Very briefly.
17 CROSS-EXAMINATION
18 BY MR. SCARBOROUGH:
19 Q. Mr. Farris, we exchanged depositions on
20 Tuesday of this week.
21 A. Yes.
22 Q. You have a college degree in business and
23 marketing, do you not?
24 A. That is correct.
25 Q. And you've been in business here for over
115
1 30 years.
2 A. That is correct.
3 Q. And you admitted in the deposition that
4 this suit is because you made a loan -- for what you
5 call a loan to your ex-wife for her to buy the condo
6 and that's what this lawsuit is all about.
7 A. That is correct.
8 Q. You admit that there was no discussion on
9 providing money for an Iowa house prior to her moving
10 to Iowa in October of 2010.
11 A. That's true.
12 Q. And you agree that the -- that the first
13 time you ever heard or talked about providing money
14 for a closing, whether it was a loan or a gift, was
15 at the December meeting in Dallas.
16 A. That's true.
17 Q. And your testimony about the Dallas meeting
18 is that you never discussed it before then, and that
19 wasn't the purpose of getting together in Dallas, was
20 it?
21 A. No.
22 Q. In fact you told me in your deposition that
23 you met in Dallas to spend time together, and there
24 was no agenda.
25 A. There was really no agenda. We just agreed
116
1 to meet in Dallas.
2 Q. And, as your words were, spend time
3 together.
4 A. That's part of it, yes.
5 Q. As a couple.
6 A. As a couple.
7 Q. Stayed in the same hotel room?
8 A. Yes.
9 Q. And went to dinner and acted like a couple.
10 A. That is true.
11 Q. Okay. You've already said I believe here
12 you didn't know how much money was going to be
13 needed. Correct?
14 A. That's right.
15 Q. House had not been identified. Correct?
16 A. That's true.
17 Q. You were talking generically about
18 providing money for a house funding, but it was not
19 the focus of the weekend. That was your testimony;
20 isn't that true?
21 A. That's true, starting out.
22 Q. And then when I asked you what the focus
23 was, you told me, was just to get together and enjoy
24 each other's company and have a good time in Dallas.
25 Isn't that your testimony?
117
1 A. That's basically true.
2 Q. And that's what you said in your
3 deposition, and that's what you're saying here.
4 A. That's right.
5 Q. You admit to communicating with the bank
6 and providing financial information on yourself to
7 the bank and to your wife, do you not -- to your
8 ex-wife?
9 A. I'm sorry? Repeat that.
10 Q. You admit that you communicated with the
11 bank that closed this transaction in Iowa, and you
12 provided financial information to them directly and
13 through your ex-wife.
14 A. That is true.
15 Q. You admit that the funeral she came back
16 for to bury her mother's ashes in the spring of 2012
17 had nothing to do with this business transaction.
18 A. That's true.
19 Q. You admit that when she came back in May of
20 2012, that she came for the birthday of her
21 80-year-old friend and for her son and that was the
22 purpose of her coming back and had nothing to do with
23 this loan -- that you call a loan that funded the
24 house; isn't that true?
25 A. Not exactly true.
118
1 Q. Well, let's -- that was a lot, so let's
2 cover it.
3 I understand that she gave you a
4 check. She doesn't deny that. But you testified in
5 your deposition that she came back because of the
6 birthday of her friend and because her son's birthday
7 was at that time.
8 A. That was her main reason.
9 Q. Okay. And in June of '13 when she came
10 back, she came back, not for purposes of this
11 transaction, but she came back because she was
12 looking into the possibility of moving, isn't that
13 true, to -- moving to Austin?
14 A. That was part of it, yes.
15 Q. And that was why she came back, to
16 consider -- because she was thinking about
17 reconnecting with her kids and maybe moving to
18 Austin. True?
19 A. That's true.
20 Q. And then in July when she did come back,
21 July of '13, she came back -- her primary reason for
22 coming back was because your son had been -- had
23 become engaged. He was going to be married in
24 February. And she wanted to renew her relationship
25 with her son and be part of those weddings?
119
1 A. That's partly -- part of it, yes.
2 Q. That's why she came back, isn't it?
3 A. She came back to Austin to live.
4 Q. Right. And she came back to be part of
5 those wedding plans; isn't that true?
6 A. She wanted to go to the wedding.
7 Q. Well, you want me -- I can give you the
8 page number. On Page 48, Line 3 --
9 A. Well, she did come back the Austin to be
10 part of the wedding. That's true. That's -- that is
11 true.
12 Q. Okay. And that's what you said in your
13 deposition; that's why she came back.
14 A. That's not the only reason she came back.
15 Q. I didn't ask you that. What you said in
16 the deposition is she wanted to renew her
17 relationship with her son, Tyler, who was engaged at
18 the time. Isn't that what you said?
19 A. Definitely. She did.
20 Q. Okay. And when she moved back to Texas in
21 July of '13, she left all of her belongings in Iowa,
22 didn't she?
23 A. Repeat that.
24 Q. When she came back to Texas in July of '13,
25 all of her belongings, furniture and the stuff like
120
1 that, other than clothes and things she needed,
2 stayed in Iowa.
3 A. Most of it did.
4 Q. And while there was no mention of
5 remarriage, you did establish a relationship with
6 her. In fact, you said -- your words were, We were a
7 couple. Right?
8 A. We were.
9 Q. And in terms of the exhibit, the number of
10 which --
11 MR. SCARBOROUGH: Which was this?
12 MR. POTTER: 8, Plaintiff's Exhibit 8.
13 Q. (BY MR. SCARBOROUGH) Plaintiff's 8, which
14 is this big document --
15 MR. SCARBOROUGH: May I approach, Your
16 Honor?
17 THE COURT: Yes.
18 Q. (BY MR. SCARBOROUGH) The second page of
19 that exhibit has a warranty deed. And in there your
20 typed name -- her name is in there, and it says, "and
21 Charles Lee Farris, both single, as joint tenants
22 with rights of survivorship and as tenants in
23 common," and that's struck out. You don't have any
24 personal knowledge of who struck that, do you?
25 A. I don't.
121
1 Q. Okay.
2 A. But I didn't know about it before closing,
3 so ...
4 MR. SCARBOROUGH: Objection;
5 nonresponsive.
6 THE COURT: Sustained.
7 Q. (BY MR. SCARBOROUGH) You admit, sir, that
8 after she quit going to UT in around 1980, and that
9 30 years until she left in the summer of 2010, that
10 those contexts, whatever you want to talk about,
11 divorces, marriages, birth of children, insurance,
12 everything, that was while she lived in either Travis
13 or Williamson County, and those contexts all are
14 because she was here living at that time. Right?
15 A. What was that all about --
16 Q. I'm trying to get you to --
17 MR. OCHOA-CRONFEL: I'm going to
18 object to that because he's asking Mr. Farris about
19 the state of mind of the defendant. And so he
20 can't -- he's not going to be able to speak to that,
21 what her --
22 MR. SCARBOROUGH: I'll rephrase the
23 question. I'll rephrase the question.
24 Q. (BY MR. SCARBOROUGH) What I'm trying to
25 get you to admit to this Court is that that
122
1 systematic context, and everything you -- whatever
2 you want to call it, for a period of 30 years, from
3 1980 until the summer of 2010, didn't have anything
4 to do with this transaction.
5 MR. OCHOA-CRONFEL: I'm going to
6 object to that, Your Honor --
7 Q. (BY MR. SCARBOROUGH) Did it?
8 MR. OCHOA-CRONFEL: -- because he's
9 also asking him to make a legal conclusion. I'm
10 going to object to that.
11 MR. SCARBOROUGH: We know he's not a
12 lawyer.
13 THE COURT: Overruled.
14 You can answer that.
15 Q. (BY MR. SCARBOROUGH) That 30 years didn't
16 have anything to do with the transaction that
17 developed -- that you said for the first time you
18 heard about it in December of --
19 A. Well, I think it did.
20 Q. Beg your pardon?
21 A. I think so. I think it did.
22 Q. You think that 30 years does relate to --
23 A. Definitely.
24 Q. Okay. I'm going to do something most
25 lawyers are not supposed to do. Tell the Court how
123
1 that 30 years relates to the transaction that you
2 heard about for the first time in December of 2010?
3 A. We were good friends. We kept in
4 communication all the time. We never let go of each
5 other.
6 Q. Okay.
7 A. This was part of it.
8 Q. Okay.
9 A. I was going to help her buy a house, but I
10 could not give her the money. It was a loan.
11 Q. I understand that's your position.
12 A. Okay.
13 Q. You know that there is reference in
14 documents to there being a gift letter.
15 A. There is.
16 Q. Do you know that?
17 A. I know it now.
18 Q. Right.
19 A. This was never a gift.
20 Q. We may have to take this out of the
21 deposition book. I'm not sure we had anticipated
22 this.
23 MR. SCARBOROUGH: May I approach the
24 witness?
25 THE COURT: Yes, you may.
124
1 Q. (BY MR. SCARBOROUGH) I'm going to hand you
2 what was marked in the deposition as Deposition
3 Exhibit 8, and I'm going to have it marked as the
4 Defendant's Exhibit 5 for purposes of this.
5 And this is an e-mail from Yvonne
6 Silvers. That's the lady you were dealing with.
7 A. Correct.
8 Q. And it's to Ms. Landa.
9 A. Uh-huh.
10 Q. And while you're not copied on it -- and
11 I'm not saying you were -- it references a gift
12 letter from you, and it says, I don't know if this
13 helps, but the gift letter from --
14 MR. OCHOA-CRONFEL: Your Honor, I'm
15 going to object to this, and I'm going to object to
16 it because it's the very thing that Mr. Scarborough
17 has been objecting to the whole time. This goes to
18 the merits. It has nothing to do with --
19 THE COURT: You mean, all those
20 objections that I've overruled, those objections?
21 MR. OCHOA-CRONFEL: Okay.
22 THE COURT: Overruled.
23 Q. (BY MR. SCARBOROUGH) This references --
24 says, "The gift letter from Lee is the only -- is
25 only for the file basically saying it does not need
125
1 to be repaid. Nothing from us is reported to the
2 IRS. Since we have an -- we have you open a primary
3 checking account anyway, what if he deposits those
4 funds from him to you into that joint account."
5 So there is at least some evidence --
6 and if we also turn -- let me finish that sentence.
7 There's some evidence that there was a gift letter.
8 And I know you say you didn't sign one, but there's
9 some evidence that there was one, isn't there?
10 A. From -- not to me.
11 Q. Right.
12 A. That was hidden from me, that whole e-mail.
13 Q. I understand that you say it was. I'm just
14 talking about whether there was -- was or was not a
15 gift.
16 In Deposition Exhibit 9 to Ms. Landa's
17 deposition, which will be the Defendant's Exhibit 6
18 for purposes of this --
19 MR. SCARBOROUGH: Brian, you have to
20 keep track of that for me.
21 MR. POTTER: I've got it.
22 Q. (BY MR. SCARBOROUGH) -- is the Uniform
23 Residential Loan Application. It says final. And as
24 part of that closing transaction, there is a
25 reference to a gift from Lee Farris in the amount of
126
1 $82,000; isn't there?
2 A. I see that now.
3 Q. Okay.
4 MR. OCHOA-CRONFEL: Your Honor, I'm
5 going to object again. We're getting to the merits
6 of the issue for which Mr. Scarborough was objecting
7 all afternoon -- been objecting all morning.
8 THE COURT: Why is this relevant,
9 Mr. Scarborough?
10 MR. SCARBOROUGH: Because it -- it
11 goes to the same argument I'd say for him; what's
12 good for the goose and is good for the gander.
13 THE COURT: Overruled.
14 MR. SCARBOROUGH: We'll offer those
15 two exhibits, 5 and 6 into evidence.
16 A. That was hidden from me. I never saw it.
17 MR. SCARBOROUGH: Objection;
18 nonresponsive.
19 THE COURT: Do we have 5 and 6?
20 THE REPORTER: No.
21 THE COURT: 5 and 6?
22 MR. POTTER: Yes, ma'am.
23 MR. SCARBOROUGH: We will -- we
24 will --
25 THE COURT: I cannot introduce them
127
1 unless I have them. Call me crazy.
2 MR. SCARBOROUGH: I'm not about to
3 call this Court crazy.
4 (Discussion off the record.)
5 MR. SCARBOROUGH: Exhibits 5 and 6,
6 and I tender to the Court.
7 THE COURT: Any objections?
8 MR. OCHOA-CRONFEL: Yes. I'm going to
9 object to it as being irrelevant, goes to the merits
10 of the case, and doesn't have anything to do with
11 contacts or jurisdiction.
12 THE COURT: Overruled.
13 5 and 6 will be admitted.
14 (Defendant's Exhibits Nos. 5 and 6
15 admitted.)
16 MR. SCARBOROUGH: Pass the witness.
17 THE COURT: Anything else?
18 You've got two minutes left.
19 MR. OCHOA-CRONFEL: Yes, ma'am. May I
20 see those exhibits?
21 THE COURT: The last two?
22 MR. OCHOA-CRONFEL: Yes.
23 THE COURT: Yes.
24
25
128
1 REDIRECT EXAMINATION
2 BY MR. OCHOA-CRONFEL:
3 Q. Mr. Farris, looking at Exhibits No. 5 and
4 No. 6, do you remember that Ms. Landa in her
5 testimony said that you had all the information that
6 she did during the closing process? Do you remember
7 that --
8 A. I remember that.
9 Q. -- as she was sitting up there?
10 Is that true?
11 A. That is not true.
12 MR. SCARBOROUGH: Objection, Your
13 Honor; goes to the merits.
14 MR. OCHOA-CRONFEL: Okay.
15 MR. SCARBOROUGH: Objection; it goes
16 to the merits.
17 THE COURT: Overruled.
18 Q. (BY MR. OCHOA-CRONFEL) Okay. Now, you see
19 those -- those two exhibits that have just been
20 introduced?
21 A. Yes.
22 Q. Had you ever seen those before the
23 litigation -- before those documents were produced in
24 litigation, had you ever seen any of those?
25 A. Never.
129
1 Q. Was the first time during the course of
2 this litigation that you ever saw that?
3 A. That's correct.
4 Q. You weren't included in any
5 correspondence --
6 MR. SCARBOROUGH: Objection; leading.
7 Q. (BY MR. OCHOA-CRONFEL) -- related to --
8 MR. SCARBOROUGH: Objection; leading,
9 suggesting the answer.
10 THE COURT: Sustained.
11 Q. (BY MR. OCHOA-CRONFEL) Were you included
12 in any correspondence related to any gift at any time
13 as a characterization of this --
14 A. No.
15 Q. -- loan that you gave Ms. Landa?
16 A. No.
17 Q. Okay. All right.
18 Now, in Dallas, Mr. Scarborough --
19 Mr. Scarborough is asking -- was asking you what the
20 focus of that meeting was, and he made reference to
21 your deposition.
22 You previously testified that that was
23 the first time you heard about the loan.
24 MR. SCARBOROUGH: Objection; leading.
25 Objection; leading.
130
1 THE COURT: You have minute left.
2 MR. OCHOA-CRONFEL: Okay.
3 THE COURT: Overruled.
4 MR. OCHOA-CRONFEL: All right.
5 Q. (BY MR. OCHOA-CRONFEL) What happened in
6 Dallas -- well, let me -- strike that.
7 Was that the first time that you heard
8 about Ms. Landa's need for money as a loan for a down
9 payment on the house?
10 A. Yes.
11 Q. Okay.
12 MR. OCHOA-CRONFEL: That's it. Pass
13 the witness.
14 THE COURT: Anything else,
15 Mr. Scarborough?
16 MR. SCARBOROUGH: No, Your Honor.
17 THE COURT: Okay. You may step down.
18 THE WITNESS: Okay.
19 (Discussion off the record.)
20 MR. OCHOA-CRONFEL: And, Your Honor,
21 we're done.
22 THE COURT: Okay.
23 MR. OCHOA-CRONFEL: We rest.
24 THE COURT: Okay.
25 MR. SCARBOROUGH: The defendant rests
PLAINTIFF'S EXHIBIT NO. 1
.. ~. ... ;.,. . . .. .
~.,,.. ")
( '·-·· . . ..
. ·.. .:} ·. :
. .
. ...·.
i'tliilllh 'h••nun•'·~lltlt.lai•'llltll'lull·~ alui1k .1,1
- - ---.------- .
~
...-.,-- ~--·---
. ..-·-· ............
..FARRIS OiOS '
. . .. .. .. . --· . .. ... ~-· ···
-............
.......... ~ · ·· .. . .. . . . . .. .
• f'• : V• • •• • • •
. . .
. :·...,.:- ·)
.. } .
.. ... .
~
. . '
··-- .. · --· -·---~-·-----
·~ . ·. j ! .
i}_`` · ..
~1 ..
. ;
FARRISOl06
PLAINTIFF'S EXHIBIT NO.6
.. . .
.. ·'
•.
. .
.
'·
.
... . . H
° :·
``.........._ ~ .t
I
·. . . . .
o 0 o •'
.
. .=::r::r. ,:, . . . .
.·
. Paie' 2oU
.• .•
.
0 . ...... . ,
·:
· ... e1 dacob ailescd: ·o
· .' · ..Nllidier ~-
• '· • • .. ~ 0 • ; • • • • •
. ·:· : .·
.. . .... .
.. ..~--- ..............
;..
· ..
PLAINTIFF'S EXHIBIT NO.7
-:·. .
. . . -!--
. .
·. . .
~
.·~#oooc!ll*
.J,._ • .·.:: • • : • •: • •• • ~ •
at.lim
• • •
.
86RVICe INFoRMA't:ION
·:custoMIR a:;a::;;
1__.
1
:;:Odor:
• I 4 • •? • •
(a;
.·.!J:r:c-····· ~
.· . . . . ~· ·.
··1~
1-mo$12.4218.
.t.-r.--1fml
. ~
.. .. . . . :•..
~
·\ .~· :- .. .:
.·':·:: ·...~· ·:./:::.··,..
..
j.• . . . . t ..
.:. '
. ) . . .: ·:
·: .
. A8S:im
. : ' ClhMidllt & 8afnp -~
\
~,..,.Chdfng
.. -.::··,....
....-·:·co
.
a·~ .
' .
(
IIIIIM.AIICE IIIIIDIIMMCE ·
....... • -JIIIIDG .
20.831.01 ' .
.Tolql ..
·.···
/'
. TOTAL A18&18'
......
·.·
'·
"·
:-·.
• ~ 't
: .... I.
. .. . ..
:
·.: .. . . '·
: .... . . . .. ( .
•. :
~. . ..... f;
--:· .· .
·: :
• , J •. •
, • : '. :
·•
\ . ·j
'··. F..UOOS 0002:..,.
. ~ .'
.·: .
·-.·---·
0. ' '.
....
'.
o r o
... . .·.· ..: .........: .::: :-- .
: ·.' ':·
o~li.Ot;~ oo o .
! '
.. ·.;• .>``~ 0
• • ••• i ·,
.........· ·./·
•. :, .. .' J ._:~-. . ..
.• .
i
. .. ...,.
•· .
. • 0 ••
. : .···. 0 .:: :· ., •••
. ..:..;·.•· . ~·.
0 •
. ~ ..
: ·
·. .
·:-. i ••
• :
.. .
~0 •
;
• •
··•· . . •. ! . :·:.··.
..·.. :
:. : ! .
... :: ·-``::::: .~·· :~·..:·
. ..
. . ~:.
.. ·.
' ....
.....
·j
. ):.:.:0 .... ~ :! .: ·.-.:·~·.;: '<;.' 'o o'
! ··~.-.r.;·.ooo.....
:..· .• : 0'.' ..;0·:....~_........;...,_._._ -===:.;.::::.- .. . ......·: o·.·::
.Aniruaf ~ V1ifd
ffller8St ElmaiS lbrtP8rbt
Bitfteclo"",..
0
0 0
blleleetNiY~
``lno~--``.k- 0° 0·:;
0 0 0
0 ·o·.o . ::0 0 ° 0 ° • • 0
90od New8: Yourd-.Prwnier``---reeoa.-... .... ,_li.ip(oen..,.,.~
0
·.: d.lpoell and~W....~fl&.GOOcw...,..ln~duritolhtllll..a.ntperiod.
0
o 0
0
JDEPPSJt$-~oADoniQNsJ . ·~\~0•.``::.:-:. •• :~- :· ..
0: 'j 't
o,
:
o'
. .:· .I
o,
.. :·.·· · . .-•: ........ .. ,
.. :,.
o '• .•. •• 0
.·.:
... · .. .:·.....
~
· : .... .. .: . ,,., .· : ,,· .. 000
. . :· :
... .
'0 o,
• i ' :· · .
:··
.... ,, ,• : ·:. .·--. :
..·· ·. •.) .l"' .•:
. :: :: . ..... ·,· ·~ ·. '. ~. . ··:. . ·.· · : ...:·: .. ··. . .·
.;·,.
:~ ~ o•
0
•'
.. ' • •• ••• ; 0 . ; :' . .. . . . •• • •' • ; • •: · : ·
. . .:
o O 0
0 ° -,1
o,
·..• ..... .~·: . .
0 ,o o:f
: : ::...:·,·. .•
0 0
. ... ...
•• • • •• • :. 0 · :·
;'
:
:o;~o;i; ..o .0· 0:0 00 0• •. : ;... o,,o
.·.· . . .OoO~
0
·.: ··...~ ~ .·.·
0
• : FARRIS
:·.·· ... '
: ~ -~ . : ... .... ·.
: .... : ... ·. ···:": -
·.· .
.. i • .
·.·
,. .. ~
.. •
~·
•j •
• .'I . .
... ·.. ll ·...·• ::.
•
• •
•• :· •
: ,
. : ..
~
.·
. . ..:· . ...
. .
. . . .. ·
. '·· .
..
. . ·.· • . •' :: '•
. .. ·
.. ··. .
.: .. . ' ..,,~-.
\-
I • :· ,·", I
.·.
..-: ~--·;_,~-~ ~ecKiN6.suMMA``l··.:·,:= ~· ·. ..-. :: ..··:.:__.:,:_j.···.. ·~;-...·...;.·.: ·!
·-• .· · e~ . : . .··\·
.. :~:
.>: :::·;: : 1:._;1~
·· '·. F... n OlbotWIIbdsa "
:- &1dfntl«<...
MuJ PtlrGaflllge Ylllcl &mici.l'his Pelbt ' 0.01...
. fl\leNat Enad thla P8IIDcf
i1uro1c PllldYOIMo-Oafe
.
,,,; -::·
=.- ·1DI§!'OSITS AND.ADDmONSI
'•~ I ,bmi ·'
OM)8
.. ·. :
.; . teal Dlpode and Addlllane
. .. . . .
·;
..'JEu:CniONIC wmtDBAWALSl ' .·. . I \ I.
... ·. : ~f&
IIBICitiPIIDII• :, • • • ~ • : ••o I • • • •
.. · .. . -:· . G2l28 . ~FecfwnD&bll vrE .Bic.CODaa~AQa-111 LFefttG rme«
·. ..·. : •. ·:·. C!22&819p~ucD!e~•Tiri: 1!!J~•E=;- . ··. , . · . ·
,··: · .toaUU.Ghillo..,...w• ·. · · · · ·· ·
.-·~ . .. . . ..
r .
.. • • .
. : . . . ~ .:
·. :· .·.. -~ (~SAND OTHER wmtDRAWAl#!l
.·. .. ·... :.·.,. . ......i.. : . :: .. .
. .:· ;' .• O!pohiDomallb Wiry,., . .z
/ ..-··.·.· ._: ·}'•lte.aoaa~c.uulll
. ·: ... .. ! . '::
. ·.
. ~ ·. .: - :~
: •.
.·.· ·:\~ixt®s ooo4:.·..··. ~-
• • •• • ~.. • • • •• • ,i • ~- ••
..
..:_.::_:_··,``';)~··..``~- -:~ ·: ..:~· ~- ·.....
~ ~. :
... :. .
. •:.:· : t
.·.··
......
•.
.... ..
~ .. ..·..
. : ....
,• ~ . ...
.
'•,; ,. ·. ·.
...
·-=•.
;AaieTa
. CIIMIIIAt& ........
...................._..... _____________
·.. · a-``-~ .
· . ' TGIII
·. .
. ·.. m
. .. . . . ................._..... M _ _:tl
.. .. . : -~·:·. Tat.t .
: . ___
·.
...
• •. . • .•
.
.·.
,.,. .... . . . .
....,
,. . . , IC1Iiar IIA'NRIIY IEIIIII•• IIM.AieCE
·.:..~
QIQWa
.
,_
8UIIJ.10
,..,
.
.· . .. ·.
·,•
.: . ... ·'. : . .· .., . • :- 0
.~ ... .. . ~
.· I .. :
·... ·. ·..· /' ·.. . ~
.: .
.. ;..
· .. ~ ..
.·· -;-
. : ·. ..·-
~
• ·: •• ,. • . .. 0
:· · . ..·
0 • • • •
..i
·,·>;.. .t .. . ·. :: : .~
'•
. . ..
. . .,. . . :.. :
:
:'!'II' .... -
.i ·:.; . ..•.
. .·:· . .·
(
. . . . . ,,
. ; .;... -.: F~S~OOS,
-: ·.· ....
; -~ 0
... .·:·:..
PLAINTIFF'S EXHIBIT NO. 9
~------------- ----
05116120121008$16,000.00 05118120121008 $16,000.0B (Back)
LANDAOISl