                                                                                  ACCEPTED
                                                                              03-15-00335-CV
                                                                                      6898529
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        9/11/2015 11:56:18 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK



        NO. 03-15-00335-CV                                   FILED IN
                                                      3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
                                                      9/11/2015 11:56:18 PM
                  IN THE THIRD COURT OF APPEALS           JEFFREY D. KYLE
                          AUSTIN, TEXAS                        Clerk



                         HERBERT ROLNICK,
                                                              Appellant

                                 v.

SIGHT’S MY LINE, INC. A FLORIDA CORPORATION; STEWART LANTZ; RIGGS,
ALESHIRE & RAY; BLAZIER, CHRISTENSEN, BIGELOW & VIRR; AND ADAMS &
                              GRAHAM,
                                                            Respondent


      Interlocutory Appeal from the 200th Judicial District Court
    in Travis County, Texas, The Honorable Tim Sulak, Presiding


                 APPELLANT’S REPLY BRIEF

                                      Ruth G. Malinas
                                      Texas Bar No. 08399350
                                      Tim T. Griesenbeck, Jr.
                                      Texas Bar No. 08454450
                                      Scott M. Noel
                                      Texas Bar No. 00797158
                                      Plunkett & Griesenbeck, Inc.
                                      Catholic Life Building, Suite 900
                                      1635 N.E. Loop 410
                                      San Antonio, Texas 78209
                                      (210) 734-7092 (telephone)
                                      (210) 734-0379 (facsimile)
                                      rmalinas@pg-law.com

            ATTORNEYS FOR APPELLANT HERBERT ROLNICK
                                  TABLE OF CONTENTS

                                                                                                 Page

PRELIMINARY STATEMENT ................................................................. 1
ARGUMENT AND AUTHORITIES ......................................................... 2
I.   The Waiver Arguments Have No Merit........................................... 2
     A.   Subsequent Controlling Authority Precludes
          Reliance on Casino Magic Corp. v. King or Other
          Cases Holding an Unsworn Special Appearance Is
          a General Appearance ............................................................. 2
     B.   Likewise, Adams’ Waiver Argument Is Meritless .................. 9
II. Appellees’ “Minimum Contacts” Analysis Is
     Fundamentally Flawed .................................................................. 10
     A.   Appellees Ignore Walden v. Fiore ......................................... 11
     B.   Only Contacts Rolnick Himself Created Count.................... 12
     C.   Only the Defendant’s Contacts with the Forum
          State Itself Count, Not the Defendant’s Contacts
          with Persons Who Reside There ........................................... 16
     D.   Rolnick Did Not Purposefully Avail Himself of the
          Privilege of Conducting Activities in Texas that
          Invoked the Benefits and Protections of Texas
          Laws ...................................................................................... 19
     E.   Appellees Cannot Rely on Any Effects in Texas of
          Rolnick’s Florida Conduct or Where Rolnick
          Supposedly Directed a Tort................................................... 21
III. Appellees Have No Answer for Rolnick’s Cases
     Involving Nonresident Attorneys and Law Firms......................... 24
IV. SML’s “Agency” Theory Is Meritless.............................................. 25




                                                   i
                                   TABLE OF AUTHORITIES

                                                                                                           Page

CASES
Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801,
 806 (Tex. 2002) ..................................................................................... 11
Brocail v. Anderson,
 132 S.W.3d 552 (Tex. App.—Houston [14th Dist.] 2004, pet.
 denied) .................................................................................................. 24
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct.
 2174, 85 L. Ed.2d 528 (1985) ......................................................... 12, 17
Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 .... 21, 22
Casino Magic Corp. v. King, 43 S.W.3d 14, 18 (Tex. App.—
 Dallas 2001, pet. denied)............................................................ 2, 3, 6, 8
Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) .......... passim
Exito Electronics Co., Ltd v. Trejo, 42 S.W.3d 302 (Tex. 2004) ....... 6, 7, 8
Guardian Royal Exch. Assur., Ltd. v. English Chinia Clays,
 P.L.C., 815 S.W2d 223, 226 (Tex. 1991) .............................................. 11
Guyton v. Pronav Ship Mgmt., Inc., 139 F. Supp.2d 815, 818
  (S.D. Tex. 2001) .................................................................................... 11
Haddad v. ISI Automation Int’l, Inc., No. 04-09-00562-CV,
  2010 WL 1708275, at *2 (Tex. App.—San Antonio 2010, no
  pet.) ......................................................................................................... 8
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
  417, 104 S. Ct. 1868, 80 L. Ed.2d 404 (1984)....................................... 12
Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 439
  (Tex. App.—Austin 2004, pet. denied) ............................................. 9, 10
J. McIntyre Mach., Ltd. v. Nicastro, ___ U.S. ___, 131 S. Ct.
  2780, 180 L. Ed.2d 765 (2011) ............................................................. 11
Jackson v. Dean,
  No. 14-23-01044-CV, 2015 WL 224964 (Tex. App.—Houston
  [14th Dist.]
  Jan. 15, 2015, no pet) ........................................................................... 14
Kroll Ontrack, Inc. v. Devon IT, Inc., No. CIV. 13-302
  DWF/TNL, 2014 WL 2922646, at *4 (D. Minn. June 27, 2014) .......... 13
Kytel Int’l Group, Inc. v. Rent-A-Center, Inc., 132 S.W.3d 717,
  719 (Tex. App.—Dallas 2004, no pet.) ................................................... 6



                                                        ii
Moki Mac River Expeditions v. Drugg,
  221 S.W.3d 569 (Tex. 2007) ........................................................... 19, 20
Prosperous Maritime Corp. v. Farwah, 189 S.W.3d 389, 392-93
  (Tex. App.—Beaumont 2006, no pet.) .................................................... 6
Retamco Operating, Inc. v. Republic Drilling Co.,
  278 S.W.3d (Tex. 2009) ................................................................. 20, 21
Rowland & Roland, P.C. v. Texas Employers Indem. Co., 973
  S.W.2d 432 (Tex. App.—Austin 1998, no pet.) ............................ 2, 9, 25
Siemens AG v. Houston Cas. Co., 127 S.W.3d 436, 439 (Tex.
  App.—Dallas 2004, pet. dism’d)............................................................. 6
Villalpando v. De La Garza, 793 S.W.2d 274, 276 (Tex. App.—
  Corpus Christi 1990, no writ) ................................................................ 3
Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115, 188 L. Ed.2d 12
  (2014) ............................................................................................ passim
Washington DC Party Shuttle, LLC v. Iguide Tours,
   406 S.W.3d 723 (Tex. App.—Houston [14th Dist.] 2013, pet.
  denied) .................................................................................................... 8
STATUTES
Tex. Civ. Prac. & Rem. Code § 17.042(1) ................................................ 17
RULES
Tex. R. App. P. 33.1(a)(1) .......................................................................... 9
Tex. R. App. P. 33.1(a)(2) .......................................................................... 9
Tex. R. App. P. 38.1(f).............................................................................. 10
Tex. R. App. P. 9.4(i)(1) ........................................................................... 27
Tex. R. App. P.9.4(i)(2)(C) ....................................................................... 27
Tex. R. App. P.9.4(i)(3) ............................................................................ 27
Tex. R. Civ. P. 120a ....................................................................... 3, 4, 5, 8
Tex. R. Civ. P. 120a(3) ............................................................................... 7




                                                      iii
                     PRELIMINARY STATEMENT
     The following appellees filed briefs: (1) plaintiffs Sight’s My Line,

Inc. and Stewart Lantz (collectively “SML”); (2) defendant Riggs, Aleshire

& Ray, Inc. (“Riggs”); and (3) defendant Adams & Graham, L.L.P.

(“Adams”). Appellee/defendant Blazier, Christensen, Bigelow & Virr did

not file a brief or, to appellant Rolnick’s knowledge, an answer to the

Court’s August 5, 2015 notice of late brief.

     The three separate appellees’ briefs are not identical, but share

many arguments and flaws. Two of the briefs make meritless waiver

arguments. All of the appellees’ briefs misstate facts and ignore

uncontroverted evidence they do not like. Some supposed “facts” stated

in the briefs have no record references and thus cannot be considered.

Tex. R. App. P. 38.1(g). As for the law, appellees rely on cases using

reasoning and analytical frameworks that have been called into question

by more recent authority appellant Rolnick cites. Appellees also distort

or misconstrue cases they do cite. To the extent appellees acknowledge

some of Rolnick’s authorities, appellees are unable to distinguish them.

In sum, none of the appellees’ briefs calls into doubt the arguments

Rolnick has made or provide applicable support for the trial court’s denial

of Rolnick’s special appearance.




                                     1
                  ARGUMENT AND AUTHORITIES
I.   The Waiver Arguments Have No Merit
     Riggs and Adams claim waiver, but there is none. Riggs asserts that

Rolnick’s special appearances were not sworn and thus the trial court’s

denial of Rolnick’s special appearance cannot be error. Riggs Br. at 10-

11. The cases Riggs cites, however, demonstrate that its argument is

waiver in disguise. Adams claims that Rolnick has waived any argument

that Rowland & Roland, P.C. v. Texas Employers Indem. Co., 973 S.W.2d

432 (Tex. App.—Austin 1998, no pet.) is not applicable and/or controlling.

Adams Brief at 11.

     A.    Subsequent Controlling Authority Precludes Reliance on
           Casino Magic Corp. v. King or Other Cases Holding an
           Unsworn Special Appearance Is a General Appearance
     Riggs argues a trial court cannot err by denying an “unsworn”

special appearance. When the cases Riggs cites are examined, however,

the Court should conclude Riggs is really making a waiver argument in

disguise. Those cases rely upon the now-discredited view that an

unsworn special appearance is a general appearance, which waives any

challenge to personal jurisdiction. At least two courts of appeals have

disagreed with the arguments made in the Riggs Brief. Moreover, two

Texas Supreme Court opinions preclude adopting Riggs’s position.

     The primary case upon which Riggs relies is Casino Magic Corp. v.

King, 43 S.W.3d 148 (Tex. App.—Dallas 2001, pet. denied). In that case,



                                    2
the special appearance pleading did not include a verification, but an

affidavit was attached to it. See id. The court of appeals held the affidavit

did not “verify” the special appearance, because it did not state that the

facts in the special appearance pleading were true and correct; rather,

the affidavit stated the facts in the affidavit were true and correct. See

id.1 The court then held this defect made the special appearance
“unsworn” and in violation of Rule 120a.

      The Casino Magic court did not cite any authority for its holding

that a defective affidavit makes a special appearance “unsworn.” The

court, however, did cite Villalpando v. De La Garza, 793 S.W.2d 274, 276

(Tex. App.—Corpus Christi 1990, no writ) as support for the following

holding: “Because the special appearance was not ‘sworn’ or ‘verified’ as

required by Rule 120a, . . . the trial judge did not err in denying the

special appearance.” Casino Magic, 43 S.W.3d at 18.

      The Villalpando opinion’s analysis rests on its holding that an

unsworn special appearance is a general appearance. See 793 S.W.2d at

276. The Villalpando court further held that, once a special appearance

is overruled, a defendant consents to jurisdiction if he appears at trial

through counsel. See id. In the twenty-five years since Villalpando was


1 The opinion does not quote any part of the affidavit or the special appearance, but
states that the special appearance included “a number of jurisdictional ‘facts’ which
the witness failed to attest to in the affidavit.” Casino, 43 S.W.3d at 18. There is no
way to tell what those unverified “jurisdictional facts” were.



                                          3
decided, subsequent cases have made reliance on its holdings and

reasoning misplaced.

     First, the Texas Supreme Court has held an unsworn special

appearance is not a “general appearance” and thus does not waive the

defendant’s challenge to personal jurisdiction. See Dawson-Austin v.

Austin, 968 S.W.2d 319, 322 (Tex. 1998). In Dawson-Austin, the
defendant’s first responsive pleading combined a special appearance, a

motion to quash service of citation, a plea in abatement, a plea to the trial

court’s jurisdiction, and an original answer subject to all of the above. See

id. at 321. The defendant verified each part of the combined responsive
pleading, except the special appearance, an omission she claimed was a

typographical error. See id. The trial court denied the special appearance,

in part because it was unsworn. See id. The next day, the defendant filed

a motion to reconsider and an amended special appearance, but the trial

court denied the amended special appearance. See id. The court of

appeals affirmed.

     The Texas Supreme Court reversed, relying on Rule120a’s express

contemplation of amendments to “cure defects” and lack of any limitation

on the type of defects that can be cured. See Dawson-Austin, 968 S.W.2d

at 322. The court further rejected the plaintiff’s “general appearance”

arguments:




                                     4
          Austin's arguments are not only contradicted by
          both the language and silence of Rule 120a, they
          misperceive   what    constitutes    a   general
          appearance. One court has explained:

                A party enters a general appearance
                whenever it invokes the judgment of
                the court on any question other than
                the court's jurisdiction; if a defendant's
                act recognizes that an action is
                properly pending or seeks affirmative
                action from the court, that is a general
                appearance.

          [citation omitted] Another court has stated the
          same proposition in the negative:

                “[A]lthough an act of defendant may
                have some relation to the cause, it does
                not constitute a general appearance, if
                it in no way recognizes that the cause
                is properly pending or that the court
                has jurisdiction, and no affirmative
                action is sought from the court.”

          [citations omitted]. These courts have accurately
          restated the principle underlying a general
          appearance. An unverified special appearance
          neither acknowledges the court's jurisdiction nor
          seeks affirmative action. While it cannot be used
          to disprove jurisdiction, it certainly does not
          concede it.
Id. (emphasis added). The court concluded a defendant does not make a
general appearance by filing an unsworn special appearance. See id.

None of the appellees’ briefs mention Dawson-Austin, despite its clear




                                    5
applicability. Instead, they rely on Casino Magic, which also ignores the

Dawson-Austin opinion decided almost three years earlier.2
      Six years later, the Texas Supreme Court decided Exito Electronics

Co., Ltd v. Trejo, 42 S.W.3d 302 (Tex. 2004). In that case, the defendant
filed a verified special appearance and attached a supporting affidavit.

See id. at 304. The plaintiff did not object to the verification, which did
not reveal how the affiant had obtained the requisite personal knowledge

of the facts described in the special appearance. See id. The plaintiff also

did not object to a defective jurat on the affidavit. See id. The trial court

denied the special appearance. See id. The court of appeals affirmed,

finding the defendant waived its special appearance by: (1) filing a Rule

11 agreement before filing its special appearance and thus making a

general appearance;3 (2) participating in a hearing on discovery matters

before the trial court ruled on the special appearance, which also

constituted a general appearance; and (3) not presenting evidence to

support the special appearance, because the verification and affidavit

were defective and inadmissible. See id.

2 Riggs also relies upon three cases following Casino Magic: Prosperous Maritime
Corp. v. Farwah, 189 S.W.3d 389, 392-93 (Tex. App.—Beaumont 2006, no pet.), Kytel
Int’l Group, Inc. v. Rent-A-Center, Inc., 132 S.W.3d 717, 719 (Tex. App.—Dallas 2004,
no pet.); and Siemens AG v. Houston Cas. Co., 127 S.W.3d 436, 439 (Tex. App.—
Dallas 2004, pet. dism’d). Kytel and Siemen’s AG do not mention Dawson-Austin. The
remaining case cites Dawson-Austin, but then refuses to follow it. Prosperous, 189
S.W.3d at 393.
3 The Rule 11 agreement in Exito extended the defendant’s time to file its first
responsive pleading. See id. at 304.



                                         6
      The Texas Supreme Court disagreed with the entirety of the court

of appeals’ waiver analysis. The court noted the plaintiff’s failure to object

to the affidavit and verification in the trial court. See id. at 307. Relying

on Rule 120a(3),4 the court explained:

             Assuming without deciding that the verification
             and affidavit are defective, we nevertheless
             disagree with the court of appeals' conclusion. We
             held in Dawson–Austin that an unverified special
             appearance does not concede jurisdiction. [footnote
             omitted] In addition, there was more in the record
             for the trial court's consideration at the time of the
             special appearance hearing than the verification
             and affidavit, including the pleadings and the
             deposition of Exito's corporate representative. If
             Exito did not provide sufficient evidence in support
             of its jurisdictional challenge, about which we
             express no opinion, the trial court should have
             denied the motion, which it did. That does not,
             however, absolve the court of appeals from
             reviewing the merits of Exito's appeal of that
             ruling. Any defect in proof goes to the merits; it is
             simply not a waiver issue. The court of appeals
             therefore erred in holding that a defective
             verification and affidavit resulted in a waiver of
             Exito's special appearance.
Id. at 307-08.5 Riggs’ failure to acknowledge Dawson-Austin or Exito is
troublesome, since those cases taken together preclude any reliance on
4 Rule 120a(3) states in pertinent part: “The court shall determine the special
appearance on the basis of the pleadings, any stipulations made by and between the
parties, such affidavits and attachments as may be filed by the parties, the results of
discovery processes, and any oral testimony.”
5 Relying on Dawson-Austin, the supreme court held the Rule 11 agreement was not
a general appearance, as it did not ask the trial court to take any action. See id. at
306. Participation in the discovery hearing did not effect a waiver either, because the
discovery was related to the special appearance and participation was not
inconsistent with the jurisdictional challenge. See id. at 306-307.



                                          7
Casino Magic, the cases upon which Casino Magic relies, or any cases
relying upon Casino Magic.

     In the instant case, none of the appellees objected in the trial court

to the lack of verification on the special appearances. CR:261-282, 659-

670.. That is not surprising, since Rolnick’s affidavit verified all of the

factual statements in the special appearances. See Washington DC Party

Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 730-31 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied) (when attached affidavit verifies

facts contained in special appearance but not special appearance itself,

Rule 120a satisfied even though no verification on special appearance);

Haddad v. ISI Automation Int’l, Inc., No. 04-09-00562-CV, 2010 WL
1708275, at *2 (Tex. App.—San Antonio 2010, no pet.). (rejecting

plaintiff’s argument based on Casino Magic, because affiant repeated and

testified to facts stated in special appearance).

     Even though Riggs is an appellee, its failure to object to the lack of

verification on the special appearance waived the complaint. See

Haddad, 2010 WL 1708275, at *2, (holding appellee waived complaint,
reasoning “[i]t is axiomatic that any complaint that a special appearance

is not verified must be brought to the trial court’s attention to give the

moving party an opportunity to cure the defect.”). Moreover, at the

special appearance hearing in the instant case, the trial court, like the

trial court in Exito, had before it numerous documents and the entire


                                     8
depositions of three witnesses. Under the holdings and reasoning in

Dawson-Austin and Exito, Riggs’s waiver arguments must be rejected.

     B.    Likewise, Adams’ Waiver Argument Is Meritless
     Adams claims that Rolnick has waived “any argument over the

application of Rowland to this case” and asserted the Court “should not

permit [Rolnick] to challenge Rowland’s application in any reply brief.”

Adams’s argument demonstrates a fundamental misunderstanding of

appellate preservation of error and waiver.

     Texas Rule of Appellate Procedure 33 governs preservation of

appellate complaints. An appellant must have presented its complaint to

the trial court by making “a timely request, objection, or motion” that

states the grounds for the ruling the appellant is seeking from the trial

court. See Tex. R. App. P. 33.1(a)(1). In addition, the appellant must have

obtained an explicit or implied ruling from the trial court on his request,

objection, or motion. See id. 33.1(a)(2). The type of error that must be

preserved is trial court error, not an alleged error by the opposing party

in citing inapplicable or distinguishable cases.

     The only case Adams cites for its waiver argument is Howell v. Tex.

Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex. App.—Austin 2004,
pet. denied), which does not support it. The issue in Howell was whether

the appellant had waived challenges to the trial court’s findings of fact

concerning whether a jury demand had been made solely to delay the



                                    9
trial and violated a local rule. See id. The appellant did not challenge the

findings of fact until its reply brief. See id. The appellant’s complaint was

directed to the trial court’s ruling striking its jury demand and claimed

trial court error. The case does not mention a need to preserve arguments

about its opposing party’s reliance upon specific cases. Howell thus

cannot support the proposition for which it is cited.

      In any event, while an appellant generally cannot add new issues

in his reply brief, the appellate rules and the cases construing them do

not preclude the appellant from responding to and arguing against cases

relied upon by the appellees. Adopting Adams’ view of error preservation

would require a complaining party to object to each case his opponent

cites or relies upon in the trial court and obtain a ruling on each of those

objections. Moreover, the objections would have to be repeated in that

party’s opening brief. It is thus not surprising that Adams cites no

applicable support for its argument.

      In this case, Rolnick claims error with regard to the trial court’s

ruling denying his special appearance. Under Texas Rule of Appellate

Procedure 38.1(f), that issue covers “every subsidiary question that is

fairly included.” The Court should reject this waiver argument.

II.   Appellees’ “Minimum Contacts” Analysis Is Fundamentally Flawed
      As all appellees acknowledge, the Texas Long-Arm Statute “reaches

‘as far as the federal constitutional requirements of due process will



                                     10
allow.’” Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806

(Tex. 2002) (quoting Guardian Royal Exch. Assur., Ltd. v. English Chinia

Clays, P.L.C., 815 S.W2d 223, 226 (Tex. 1991). As a result, “the
jurisdictional inquiry under the Texas long-arm statute collapses into a

single due-process inquiry.” Guyton v. Pronav Ship Mgmt., Inc., 139 F.

Supp.2d 815, 818 (S.D. Tex. 2001). The Texas Supreme Court has told

appellate courts (and litigants) to rely on United States Supreme Court

precedent and other federal cases as well Texas cases. Am. Type Culture,

83 S.W.3d at 806.

      A.     Appellees Ignore Walden v. Fiore
      Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115, 188 L. Ed.2d 12
(2014) is the United States Supreme Court’s most recent specific

jurisdiction case. In fact, Walden is one of only two 6 specific jurisdiction

cases decided by the Court since 1990. Walden is significant, because it

expounds on which contacts are jurisdictionally significant and restricts

the “effects test” to intentional torts and intentional conduct. Riggs and

SML do not even cite Walden. Adams cites the case once (Adams Brief at

10-11) for its holding that “a defendant’s contacts with the forum State

may be intertwined with his transactions or interactions with the

plaintiff or other parties.” Walden, 134 S. Ct. at 1123.


6The other specific jurisdiction case is J. McIntyre Mach., Ltd. v. Nicastro, ___ U.S.
___, 131 S. Ct. 2780, 180 L. Ed.2d 765 (2011), which is a stream-of-commerce case.



                                         11
     Appellant Rolnick discusses Walden extensively in his opening

brief at pages 13-14, which makes appellees’ silence telling indeed.

Walden reaffirms that the minimum contacts inquiry “focuses on ‘the
relationship among the defendant, the forum, and the litigation’” (id. at

1121) and then explains rules governing that analysis. As explained

below, the appellees’ arguments violate these rules.

     B.    Only Contacts Rolnick Himself Created Count
     Walden reaffirms that the defendant-forum-litigation relationship
“must arise out of contacts that the ‘defendant himself’ creates with the

forum State.” Id. at 1122 (quoting Burger King Corp. v. Rudzewicz, 471

U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed.2d 528 (1985)) (emphasis in

original). Thus, the contacts plaintiffs or third parties have with the

forum State are not relevant. See Walden, 134 S. Ct. at 1122. In other

words, another party’s or a third party’s unilateral activity in the forum

cannot be considered. See Helicopteros Nacionales de Colombia, S.A. v.

Hall, 466 U.S. 417, 104 S. Ct. 1868, 80 L. Ed.2d 404 (1984).
     The reason for this rule is sound and explained by the unanimous

Walden Court as follows: “Due process limits on the State’s adjudicative
authority principally protect the liberty of the non-resident defendant—

not the convenience of the plaintiffs or third parties.” Walden, 134 S. Ct.

at 1122. A plaintiff’s contacts with Texas, no matter how significant,

cannot determine whether a Texas court violates a non-resident



                                    12
defendant’s due process rights by exercising personal jurisdiction over

him.

       A corollary to the rule is that the forum contacts of an agent or

employee acting solely for his principal’s or employer’s benefit do not

count as contacts of the agent individually. See Kroll Ontrack, Inc. v.

Devon IT, Inc., No. CIV. 13-302 DWF/TNL, 2014 WL 2922646, at *4 (D.
Minn. June 27, 2014) (Pennsylvania lawyers’ contacts with Minnesota

made at a client’s behest and for client’s benefit are made “in a purely

representative capacity.”). Thus, only contacts Rolnick had with Texas in

his individual capacity can be considered. And that is the biggest flaw in

Appellees’ arguments. Everything Rolnick did with regard to the

transaction he did in the course of representing SML and/or Lantz.

Rolnick has had no other contacts with Texas.

       None of the contacts upon which appellees rely can be attributed to

Rolnick, who was hired by Lantz (a Florida resident) in Florida to

represent SML (a Florida corporation Lantz owned) in its sale of all its

Texas assets to a Delaware corporation having its principal place of

business in Nevada. CR:137, 139, 166, 382, 383, 502. All of the work

Rolnick did in relation to the transaction took place in Florida.

Appellant’s Brief at 18-20; CR:37, 160-161. Lantz admits that all of

Rolnick’s contacts with Ray (a Texas lawyer) were as SML’s lawyer for

SML’s and/or Lantz’s benefit. CR:386-387. Contacts of an agent on behalf


                                    13
of his principal cannot be considered when deciding if there is jurisdiction

over the agent individually. See Jackson v. Dean, No. 14-23-01044-CV,

2015 WL 224964 (Tex. App.—Houston [14th Dist.] Jan. 15, 2015, no pet).

Stated another way, all of Rolnick’s contacts as SML’s lawyer are SML’s

contacts, and cannot be used to subject Rolnick to the jurisdiction of a

Texas court.

      Appellees contend that Rolnick’s role in the negotiation of the sale

subjects him to jurisdiction in Texas, but they are wrong. There is no

evidence that any of the negotiations took place in Texas. Appellees do

not identify where Rolnick was when the conduct ascribed to him

occurred, since doing so would defeat their position. The buyer’s

representatives were in Nevada when Rolnick spoke with them about the

sale. CR:515. The buyer 7 provided the first draft of the Asset Purchase

Agreement to Rolnick in Florida. CR:504.

      Appellees also rely heavily on the fact that the assets being sold

were in Texas. SML owned the assets and made the decision to sell them.

There is no evidence that Rolnick had any right to all or part of the sales

proceeds.


7 Appellees either refer to the buyer as a “Texas buyer” or imply the buyer is from
Texas, but there is no evidence to support this position. The buyer and obligor under
the Promissory Note was AOS, a Delaware corporation with its principal place of
business in Nevada. CR:444, 575. The fact that AOS was purchasing assets in Texas
does not make it a “Texas buyer.” The record references given for this contention do
not support it.



                                         14
     The presence of SML assets in Texas is a contact of SML and/or

Lantz, SML’s sole owner. This contact is irrelevant with respect to

personal jurisdiction over Rolnick. Walden, 134 S. Ct. at 1122 (“We have

consistently rejected attempts to satisfy the defendant-focused ‘minimum

contacts’ inquiry by demonstrating contacts between the plaintiff (or

third parties) and the forum State).

     Just as irrelevant is Rolnick’s knowledge that the assets were in

Texas or that SML had strong contacts with Texas. The Court in Walden

rejected this argument:

           Rather than assessing petitioner's own contacts
           with Nevada, the Court of Appeals looked to
           petitioner's knowledge of respondents' “strong
           forum connections.” [citation omitted] In the
           court's view, that knowledge, combined with its
           conclusion that respondents suffered foreseeable
           harm in Nevada, satisfied the “minimum contacts”
           inquiry. [footnote and citation omitted]

           This approach to the “minimum contacts” analysis
           impermissibly allows a plaintiff's contacts with the
           defendant and forum to drive the jurisdictional
           analysis. Petitioner's actions in Georgia did not
           create sufficient contacts with Nevada simply
           because he allegedly directed his conduct at
           plaintiffs whom he knew had Nevada connections.
           Such reasoning improperly attributes a plaintiff's
           forum connections to the defendant and makes
           those connections “decisive” in the jurisdictional
           analysis. [citation omitted] It also obscures the
           reality that none of petitioner's challenged conduct
           had anything to do with Nevada itself.




                                   15
134 S. Ct. at 1124-1125. Rolnick did not own any part of SML or its assets

and did not himself have any assets in Texas. CR:35-36, 390-91. When

SML required legal assistance regarding the Texas assets or any of SML’s

activities in Texas, SML hired a Texas lawyer. CR:390. Appellees’

contention that Rolnick provided legal services to SML with respect to a

Medicaid investigation or the lease of property in Texas is simply false.

Lantz testified that he hired a Texas lawyer – Ray – to deal with the

Medicaid investigation. CR:389. There is no evidence that the lawsuit at

issue related to or arose from the Medicaid investigation. There is no

evidence that Rolnick provided services in Texas with respect to the

Medicaid investigation.

     C.    Only the Defendant’s Contacts with the Forum State Itself
           Count, Not the Defendant’s Contacts with Persons Who
           Reside There
     Appellees rely heavily on communications between Ray and

Rolnick, but again, Rolnick was not in Texas when those communications

occurred. Rather, the communications consisted of emails and a few

telephone calls between Ray, who was in Texas, and Rolnick, who was in

Florida. Although SML claims Rolnick testified to “numerous” phone

calls into Texas, the record references SML cites do not support that

claim at all. SML Brief at 9-10. Ray’s billing records reflect only 5

telephone calls with Rolnick. CR:322-330. With one exception, those

records, however, do not reflect who initiated the conversations. CR:322-



                                   16
330. That exception reflects a call from Ray to Rolnick. CR:330.

Telephone calls from Ray to SML or Rolnick are not contacts of Rolnick

with Texas. The same is true with respect to emails.

      Here again, appellees’ analysis runs afoul of Walden, which

unambiguously holds that it is the contacts between the defendant and

the forum State that are the relevant ones, not contacts between the

defendant and a plaintiff or co-defendant who are Texas residents. See

Walden, 134 S. Ct. at 1123. Under Walden, the communications between
Rolnick and Ray, even if they had been in Rolnick’s individual capacity,

would not have subjected him to personal jurisdiction in Texas. When, as

here, the plaintiff or a third-party plaintiff is the only link between the

defendant and the forum, personal jurisdiction will not lie over the non-

resident defendant. See id. at 1122-23. 8

      In order for contacts with Texas residents to be relevant to personal

jurisdiction over the defendant, those contacts must reflect that the

defendant purposefully reached out beyond his or her state and into

another. See Walden, 134 S. Ct. at 1122. The Walden court gave two

examples of such contacts with a forum State that would be sufficient for

jurisdictional purposes. First, a defendant that enters into a contractual

8This concept is the reason for the long-standing rule that a Texas resident’s contract
with an out-of-state party alone will not automatically establish sufficient minimum
contacts in Texas. See Burger King, 471 U.S. at 478. That is true even though the
Texas long-arm statute states that contracting with a Texas resident is “doing
business” in Texas. See Tex. Civ. Prac. & Rem. Code § 17.042(1).



                                          17
relationship envisioning “continuing and wide-reaching contacts” in

Texas would have made contacts with Texas itself. See id. The second

example given was a defendant’s circulation of magazines or other

products to purposefully exploit a Texas market. See id. No such conduct

occurred here.

     Rolnick has never sought clients in Texas. CR:36. Rolnick has never

appeared in court in Texas. CR:35. Rolnick is not and has never been

licensed to practice law in Texas. CR:35. Although Rolnick represented

SML over a period of years, all conduct in connection with that

representation occurred in Florida. CR:382, 503. Because SML is a

Florida corporation and its owner Lantz is a Florida resident, the

relationship among SML, Lantz, and Rolnick is and has always been

centered in Florida. Ray addressed and sent his bills to Lantz and sent

no bills to Rolnick. CR:556, 557.

     In sum, appellees’ alleged Texas contacts boil down to the following:

(1) communications between Rolnick in Florida and Ray in Texas, (2)

Rolnick’s knowledge that assets of SML, a Florida corporation, were

located in Texas, (3) negotiations between Rolnick (while he was in

Florida) and the buyer’s representative (who was in Nevada), and (4)

Rolnick’s supposed “direction” to Ray (by correspondence sent from

Florida) to file the UCC-1 in Texas. These contacts taken singly or




                                    18
together are not sufficient to allow a Texas court to exercise jurisdiction

over Rolnick.

     D.    Rolnick Did Not Purposefully Avail Himself of the Privilege of
           Conducting Activities in Texas that Invoked the Benefits and
           Protections of Texas Laws
     Texas Supreme Court cases over the past ten years demonstrate

that appellees’ purposeful availment arguments also fail. “Purposeful

availment” generally requires more than a sale of one or more products

or services in Texas. See Moki Mac River Expeditions v. Drugg, 221

S.W.3d 569, 578 (Tex. 2007); Michiana Easy Livin’ Country, Inc. v.

Holten, 168 S.W.3d 777, 785 (Tex. 2005). That “something more” must be
purposeful, such as directing marketing efforts to Texas, operating a

sales and distribution network in Texas, and having an office providing

sales information and support. See id. at 787. Stated another way,

“[p]urposeful availment requires that ‘a defendant must seek some

benefit, advantage, or profit by availing itself of the jurisdiction.’” Moki

Mac, 221 S.W.3d at 578.
     In Moki Mac, the defendant actively sought to serve the Texas

market, established regular communication channels with its Texas

customers, utilized some of those Texas customers as de facto group

leaders “to plan, organize, and promote its trips” involving other Texas

residents. See id. Although the court found ample conduct amounting to




                                    19
“purposeful availment,” it was not sufficiently related to the litigation to

justify specific jurisdiction. See id. at 588.

      The analysis in Retamco Operating, Inc. v. Republic Drilling Co.,

278 S.W.3d 333 (Tex. 2009) further explains what “purpose availment”

really means. Retamco, a Texas corporation sued another Texas

corporation and obtained a $16,000,000 interlocutory default judgment.

Id. at 336. Retamco then added a fraudulent transfer claim against a
California corporation after learning the defaulted defendant had

transferred 72% of certain assets to the California corporation. Id. The

trial court denied the California defendant’s special appearance, but the

court of appeals reversed. See id. at 337. The Texas Supreme Court

reversed. See id. at 342.

      The court based its reversal on a purposeful availment analysis,

reasoning as follows:

            Republic's contacts with Texas were purposeful,
            not random, fortuitous, or attenuated. Oil and gas
            interests are real property interests. [citations
            omitted]. Republic was aware that the oil and gas
            interests it received were located in Fayette,
            Dimmit, and Webb Counties, Texas. Thus,
            Republic purposefully took assignment of Texas
            real property. And while Republic may not have
            actually entered the state to purchase this real
            property, “[j]urisdiction ... may not be avoided
            merely because the defendant did not physically
            enter the forum state.” [citation omitted] Republic,
            by taking assignment of Texas real property,
            reached out and created a continuing relationship
            in Texas. Under the assignment, it is liable for


                                      20
             obligations and expenses related to the interests.
             This ownership also allows Republic to “enjoy ...
             the benefits and protection of [Texas laws.]”
             [citation omitted]. Unlike personal property,
             Republic's real property will always be in Texas,
             which leaves no doubt of the continuing
             relationship that this ownership creates.
Id. at 339 (emphasis added). There is no evidence that Rolnick created or
even sought such a continuing relationship with Texas. There is no

evidence that the flat fee Rolnick received from SML for all the work done

on the transaction was a benefit or protection of Texas law. Indeed, the

evidence instead conclusively demonstrated that Rolnick’s only contacts

with Texas were with another lawyer chosen by SML to advise on Texas

law. The analysis in Retamco defeats appellees’ assertions of purposeful

availment.

     E.      Appellees Cannot Rely on Any Effects in Texas of Rolnick’s
             Florida Conduct or Where Rolnick Supposedly Directed a Tort
     Appellees also contend that the effects of Rolnick’s alleged legal

malpractice were felt in Texas, because the assets were lost there. That

argument has a number of flaws. First, Walden rejects the “effects”

analysis some lower courts had adopted based on Calder v. Jones, 465

U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). Calder was a libel suit

brought by a California actress in a California state court against a

reporter and editor employed by the National Enquirer in Florida. The

article at issue had been written and edited by the defendants in Florida.

See Walden, 134 U.S. at 1123. The crux of Calder was not that the


                                    21
reputation-based effects of the libelous publication were felt by the

plaintiff in California. Walden, 134 U.S. at 1123-1124. Instead, the

Walden Court “recognized that the defendant’s activities” had focused on
the plaintiff, but explained that the Court’s jurisdictional analysis

focused on more than that. See id at 1123. The contacts the Calder court

had relied upon included phone calls by the reporters to California

sources for the information in the article, the focus of the article on the

plaintiff’s activities in California, the wide circulation of the publication

in California, and the fact that the “brunt” of the reputational injury was

suffered by the plaintiff there. See id.

     The Walden court then explained:

           The crux of Calder was that the reputation-based
           “effects” of the alleged libel connected the
           defendants to California, not just to the plaintiff.
           The strength of that connection was largely a
           function of the nature of the libel tort. However
           scandalous the newspaper article might be, it can
           lead to a loss of reputation only if communicated
           to (and read and understood by) third persons.
           [citation omitted.] Accordingly, the reputational
           injury caused by the defendants’ story would not
           have occurred but for the fact that the defendants
           wrote an article for publication in California that
           was read by a large number of California citizens.
           Indeed, because publication to third persons is a
           necessary element of libel, [citation omitted], the
           defendants’ intentional tort actually occurred in
           California. [citation omitted.] In this way, the
           “effects” caused by the defendants’ article - i.e., the
           injury to the plaintiff’s reputation in the
           estimation of the California public - connected the



                                     22
           defendants’ conduct to California, not just to the
           plaintiff who lived there. That connection,
           combined with the various facts that gave the
           article a California focus, suffice to authorize the
           California court’s exercise of jurisdiction.
Walden, 134 U.S. at 1124 (emphasis in original). The Walden court then
emphatically rejected the argument that personal jurisdiction over a non-

resident can rest on mere injury to a foreign resident. See id at 1125.

     “The proper question is not where the plaintiff experienced a

particular injury or effect but whether the defendant’s conduct connects

him to the forum in a meaningful way.” It is the existence of a meaningful

connection between Rolnick and Texas that is missing in this case.

     Prior to Walden, the Texas Supreme Court also had rejected the

notion that committing a tort “in” Texas or a tortfeasor’s knowledge that

the injury will be felt by a particular Texas resident was enough to

sustain personal jurisdiction over a non-resident. See Michiana, 168

S.W.3d. at 788-89. Despite appellees’ contentions to the contrary, there

is no evidence that Rolnick “committed a tort in Texas.”

     Appellees rely on Rolnick’s out-of-state conduct in Florida in

claiming that he committed legal malpractice in Texas. This is nothing

more that the “direct-a-tort” theory Michiana also rejected. If jurisdiction

turns on where a defendant directed a tort, the focus shifts to the

relationship among the plaintiff (rather than the defendant), the forum

and the litigation. See id. at 790. Moreover, “directed-a-tort jurisdiction



                                    23
[equates] the jurisdictional inquiry with the underlying merits.” Id.

Taken to its logical end, a defendant would defeat personal jurisdiction

by establishing it had not committed a tort. See id. at 790-791.

       In any event, there is no evidence that any of Rolnick work on the

transaction in question took place in Texas.

III.   Appellees Have No Answer for Rolnick’s Cases Involving
       Nonresident Attorneys and Law Firms
       In his Appellant’s Brief at 16-17, Rolnick has cited numerous Texas

cases applying the rule that there is no specific jurisdiction over a

nonresident attorney or law firm who exercises legal judgment, forms

legal opinions, and does legal work for the client in states other than

Texas. The same analysis applies to nonresident physicians who send

prescriptions from another state to Texas and/or direct a Texas resident’s

care. See Brocail v. Anderson, 132 S.W.3d 552, 555-556 (Tex. App.—

Houston [14th Dist.] 2004, pet. denied). The Texas Supreme Court in

Moki Mac, 221 S.W.3d at 588, expressly approved Brocail’s holding that
there was no jurisdiction over the nonresident physician, because “any

tort occurred in the exercise of medical judgment” in another state, rather

than communicating that judgment to Texas. See id. Although Rolnick

cited and discussed Brocail in his brief at 17-18, appellees do not mention

it.




                                    24
      Appellees rely on inapplicable cases. For example, SML relies on

Mountain States Employers Council, Inc. v. Cobb Mechanical
Contractors, Inc., 2008 WL 2639711 (Tex. App.—Fort Worth July 3, 2008,
no pet), in which the out-of-state attorney appeared at and represented

his client during an NLRB hearing held in Texas. Rolnick did not provide

any legal services in Texas.

      The Tennessee law firm in Rowland v. Rowland, 973 S.W.2d 432

(Tex. App.—Austin 1998, no pet.) was subject to personal jurisdiction in

Texas because it paid the proceeds of a Tennessee wrong death suit to its

Texas clients without protecting a Texas insurer’s lien. Here again,

Rolnick had no similar contact with Texas.

IV.   SML’s “Agency” Theory Is Meritless
      SML claims that jurisdiction over Rolnick can be based on an

agency theory under which Rolnick is the principal and Ray and BCBV

are the agents. None of the cases SML cites are even remotely applicable.

While Rolnick agrees with the rule that an agent’s Texas contacts are

attributed to his principal, there is no evidence of an agency relationship

between Ray and BCBV as the purported agents and Rolnick as the

principal. Ray and Rolnick were lawyers representing the same clients—

SML and Lantz. As explained earlier in this brief, Ray sent his bills to

SML, not Rolnick. Although Rolnick advised Lantz to hire Texas counsel

to ensure SML’s rights were protected under Texas law, Lantz admitted



                                    25
he chose Ray based on previous work Ray had done for SML. CR:384-385.

Lantz also testified that he contacted Ray asked him to serve as Texas

counsel in the matter. CR:384. Upon checking the record references in

the agency portion of SML’s brief, the Court should find they do not

support the factual assertions made.

     For all of the above reasons, the Court should reverse the trial

court’s denial of Rolnick’s special appearance and render judgment

dismissing the claims against him for lack of subject matter jurisdiction.

                                    Respectfully submitted,

                                    RUTH G. MALINAS
                                    Texas Bar No. 08399350
                                    Plunkett & Griesenbeck, Inc.
                                    Catholic Life Building, Suite 900
                                    1635 N.E. Loop 410
                                    San Antonio, Texas 78209
                                    (210) 734-7092 (telephone)
                                    (210) 734-0379 (facsimile)
                                    rmalinas@pg-law.com


                                       /s/ Ruth G. Malinas
                                    RUTH G. MALINAS

                                    COUNSEL FOR APPELLANT
                                    HERBERT ROLNICK




                                   26
                  CERTIFICATE OF COMPLIANCE
     Pursuant to Texas Rule of Appellate Procedure 9.4, the

undersigned certifies this Appellant’s Reply Brief complies with the type-

volume limitations of the Rule. The undersigned prepared the Reply Brief

using Microsoft Word 2013 and relied on that software’s word-count

function.

     Exclusive of the exempted portions listed in Texas Rule of Appellate

Procedure 9.4, the brief contains 6122 words.

                                         /s/ Ruth G. Malinas
                                       RUTH G. MALINAS

                     CERTIFICATE OF SERVICE

     This will certify that a true and correct copy of the foregoing
Appellant’s Reply Brief has been forwarded this 11th day of September,
2015, to the following attorneys of record via electronic service:

J. Hampton Skelton
Brandon Duane Gleason
Skelton & Woody
248 Addie Roy Road, Suite B-302
Austin, TX 78746
hskelton@skeltonwoody.com
bgleason@skeltonwoody.com
Attorneys for Sight’s My Line, Inc.,
a Florida Corporation and
Stewart Lantz




                                   27
Scott R. Kidd
Scott V. Kidd
Kidd Law Firm
819 W. 11th Street
Austin, TX 78701
scott@kiddlawaustin.com
svk@kiddlawaustin.com
Attorneys for Riggs, Aleshire & Ray

Michael B. Johnson
Salvador Davila
Thompson, Coe, Cousins & Irons, LLP
701 Brazos, Suite 1500
Austin, TX 78701
mjohnson@thompsoncoe.com
sdavila@thompsoncoe.com
Attorneys for Blazier, Christensen,
Bigelow & Virr

Robert E. Valdez
Jose “JJ” Trevino, Jr.
Valdez, Jackson & Trevino, PC
1826 North Loop 1604 West, Suite 275
San Antonio, TX 78248
revaldez@vjtlawfirm.com
jtrevino@vjtlawfirm.com
Attorneys for Adams & Graham


                                         /s/ Ruth G. Malinas
                                      RUTH G. MALINAS




                                  28
