Ken Hoagland v. Bill Butcher, Kari Butcher, Butcher & Butcher, and OCTV Partners, LLC ( 2013 )

Reversed and remanded and Plurality, Concurring, and Dissenting Opinions
filed January 24, 2013.
In the
Fourteenth Court of Appeals
NO. 14-11-01074-CV
KEN HOAGLAND, Appellant
V.
BILL BUTCHER, KARI BUTCHER, BUTCHER & BUTCHER, AND OCTV
PARTNERS, LLC, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2010-58144
DISSENTING OPINION
The plurality opinion concludes that the Butchers and OCTV failed to
properly negate every ground for personal jurisdiction alleged in Hoagland’s
petition and that, therefore, the burden did not shift to Hoagland to prove his
jurisdictional facts. Plurality Opinion at 9-12. It, as well as the concurring
opinion, rejects all of appellees’ affidavits as conclusory. I respectfully disagree.
First, I disagree with this holding because it was not briefed by Hoagland.
Hoagland did not argue or brief that the Butchers’ affidavits were conclusory, nor
that we should reject the OCTV affidavit because it did not provide the underlying
facts to support its conclusions.
Second, I do not agree that the Butchers’ affidavits are so conclusory that
they did not shift the burden to Hoagland to prove his jurisdictional facts. The
plurality opinion concludes Hoagland’s pleading—that each appellee made written
and oral misrepresentations of material fact to Hoagland in Harris County—is a
sufficient pleading of jurisdictional facts,1 yet it rejects as conclusory the Butchers’
statements that they did not make any representations to Hoagland in Texas
regarding the business transaction made the basis of the captioned case.
Hoagland’s pleading contains the following jurisdictional allegations2:
Each of the Defendants made written and oral misrepresentations of
material fact to the Plaintiff (while Plaintiff was physically located in
Harris County, Texas) via email and telephone conversations and in-
person meetings during calendar years 2009 and 2010, with the
intention that Plaintiff would rely upon such misrepresentations and
take action or refrain from taking certain actions within Harris
County, Texas. Furthermore, Defendants Bill Butcher and Kari
Butcher made trips to Houston, Texas, as part of their effort to
mislead Plaintiff, and attended meetings with Plaintiff during which
fraudulent misrepresentations were made by each of the Defendants to
the Plaintiff.
The plurality opinion recites other statements from Hoagland’s pleading,3 but these
1
Unlike Hoagland, appellees argued at the trial court and in their brief on appeal that
Hoagland’s jurisdictional allegations are conclusory.
2
Hoagland made other jurisdictional allegations that the plurality correctly has
discounted in its opinion.
3
The plurality opinion also contends that these are jurisdictional facts: “Hoagland also
alleged that appellees each (1) ‘misrepresented their abilities and financial condition such that it
was believed they would bring enormous skill, expertise, and personal and donated monies to the
[FairTax Campaign] effort’ and (2) fraudulently induced Hoagland into signing the Operating
Agreement. Hoagland further alleged that Bill convinced Hoagland to take a $3,000 monthly fee
in lieu of the fee to which he was entitled under the Operating Agreement based on Bill’s
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were not listed as jurisdictional facts, nor does the pleading state that these
representations were made at the “in-person” meetings in Houston. Hoagland did
not even allege that the phone calls to Hoagland were made while he was in
Houston.4 In short, the jurisdictional allegations are generic, and the generic
rebuttal by the Butchers should be sufficient to negate the allegations and require
Hoagland to prove his jurisdictional facts.
The Butchers’ affidavits acknowledged that they traveled to Texas on
business related to AFFT, but denied that the Texas visits related to any personal
transaction with Hoagland. Bill Butcher stated the following:
I am a resident of California. At no material time have I been a
resident of Texas. I do not maintain a place of business in Texas. I
have traveled to Texas on business related to Americans For Fair
Taxation (AFFT), an organization which is not a party to this lawsuit.
Over the period of approximately one year I made several trips to
Texas in my capacity as President and CEO of Corporate Partner in
Butcher and Butcher, a California General Partnership of
Corporations. Butcher and Butcher does not maintain a place of
business in Texas. Butcher and Butcher does not otherwise transact
business in Texas. Butcher and Butcher never made any
representations to Plaintiff, in Texas, regarding the business
transaction made the basis of the captioned case. Butcher and Butcher
did not enter into any contracts with Plaintiff regarding the
transactions made the basis of the captioned case in Texas. It never
made any payments to Plaintiff in Texas regarding the transaction
made the basis of the captioned case. It never engaged in any
business activities with Plaintiff, in Texas, regarding the transactions
made the basis of Plaintiff’s case.
Kari Butcher made the following statements:
representation that Hoagland would financially benefit more from taking the monthly fee than
from taking the fee outlined in the Operating Agreement.” Plurality Opinion at 7–8.
4
In the age of cell phones, a phone call can be placed anywhere and answered anywhere.
3
I am a resident of California. At the present time, I am temporarily in
the State of New York, but I have not yet become a resident of New
York, although I intend to change my residence to New York in 2011.
At no material time have I been a resident of Texas. I do not maintain
a place of business in Texas. I have traveled to Texas on business
related to Americans for Fair Taxation (AFFT), an organization which
is not a party to this lawsuit. Over the period of approximately one
year I made several trips to Texas in my capacity as President and
CEO of Corporate Partner in Butcher and Butcher, a California
General Partnership of Corporations. I do not otherwise transact
business in Texas. I am familiar with the business transactions
regarding OCTV Partners, LLC, that are the basis of Plaintiff's cause
of action. I have never travelled to Texas to confer with Plaintiff with
respect to OCTV Partners, LLC. I have never made any
representations to Plaintiff, in Texas, regarding the business
transaction made the basis of the captioned case. I did not sign any
contracts with Plaintiff regarding the transactions made the basis of
the captioned case in Texas. I have never made any payments to
Plaintiff in Texas regarding the transaction made the basis of the
captioned case. I have never engaged in any business activities with
Plaintiff, in Texas, regarding the transactions made the basis of
Plaintiff's case.
I disagree with the plurality that these affidavits are conclusory. Both
affidavits acknowledged the visits to Texas, but contended that the Texas visits
were related to AFFT business and not to the personal complaints that Hoagland is
making. I would hold that the Butchers’ affidavits shifted the burden to Hoagland
to prove his jurisdictional facts. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d
653, 658 (Tex. 2010).
Third, I disagree with the plurality’s analysis of the OCTV affidavit. The
plurality also concludes that OCTV failed to rebut Hoagland’s allegations because
Marc Kassoff’s affidavit stated that he was not a manager or officer of OCTV
when Hoagland entered into the contract with OCTV—an allegation that Kassoff
lacked personal knowledge. This is a defect in the form of the affidavit. Hoagland
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should have objected to the affidavit in the trial court. Because he did not,
Hoagland waived this issue on appeal. Grupo TMM, S.A.B. v. Perez, 327 S.W.3d
357, 361 (Tex. App.—Houston [14th Dist.] 2010, pet. denied]; McMahan v.
Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (explaining that objections to form, such as hearsay, speculation,
competence, are waived by a failure to object). Of course, as noted above,
Hoagland did not raise this issue, either at the trial court or on appeal; only the
plurality has. The plurality then holds that Kassoff did not provide the underlying
facts to support his conclusions—but Kassoff did not make conclusions. He stated
facts—“OCTV’s communications with Hoagland all took place in California or on
the telephone.” This is sufficient to rebut Hoagland’s jurisdictional allegations.
The affidavits of the Butchers and of Kassoff are sufficient to shift the
burden to Hoagland to prove his jurisdictional facts. We then should have
reviewed all of the jurisdictional facts, and since the trial judge did not issue
findings of fact, we should have presumed the trial court resolved all factual
disputes in favor of its judgment. Am. Type Culture Collection, Inc. v. Coleman,
83 S.W.3d 801, 806 (Tex. 2002); Meader v. IRA Res., Inc., 178 S.W.3d 338, 343
(Tex. App.—Houston [14th Dist.] 2005, no pet.). Because the plurality did not do
so, I respectfully dissent.
/s/ Tracy Christopher
Justice
Panel consists of Justices Frost, Christopher, and Jamison. (Jamison, J., plurality)
(Frost, J., concurring).
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