                                                                                          ACCEPTED
                                                                                     04-14-00827-CV
                                                                          FOURTH COURT OF APPEALS
                                                                               SAN ANTONIO, TEXAS
                                                                                3/4/2015 11:38:05 PM
                                                                                       KEITH HOTTLE
                                                                                              CLERK

                             No. 04-14-00827-CV

                                                               FILED IN
                                                        4th COURT OF APPEALS
         IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF
                                                         SANTEXAS
                                                              ANTONIO, TEXAS
                          AT SAN ANTONIO, TEXAS         3/4/2015 11:38:05 PM
                                                          KEITH E. HOTTLE
                                                                Clerk
    PT INTERMEDIATE HOLDING, INC. AND PERSONAL TOUCH HOLDING CORP.,
                                        Appellants,

                                       v.

                            LMS CONSULTING LLC,
                                         Appellee.


        On Appeal from the 45th Judicial District Court, Bexar County
      Honorable Peter Sakai of the 225th Judicial District Court, Presiding


             BRIEF OF APPELLEE LMS CONSULTING LLC


Taylor Dunham and Rodriguez LLP          Law Offices of Alejandro Mora PLLC
David E. Dunham                          Alejandro Mora
State Bar No. 06227700                   alejandro@morahealthcarelaw.com
ddunham@taylordunham.com                 7000 North Mopac Expressway
Jennifer Tatum Lee                       Suite 200
State Bar No. 24046950                   Austin, Texas 78731
jtatum@taylordunham.com                  Telephone 512.514.6683
Isabelle M. Antongiorgi                  Facsimile 888.320.0589 (fax)
State Bar No. 24059386
ima@taylordunham.com
301 Congress Avenue, Suite 1050
Austin, TX 78701
Telephone 512.473.2257
Facsimile 512.478.4409
                   Counsel for Appellee LMS Consulting LLC

                     ORAL ARGUMENT REQUESTED
                IDENTITY OF THE PARTIES AND COUNSEL
Appellant/Defendant PT Intermediate Holdings Inc.
Appellant/Defendant Personal Touch Holding Corp.1

Represented by:

Jackson Walker LLP
Josh Romero
jromero@jw.com
Monte James
mjames@jw.com
Kimberly Gdula
kgdula@jw.com
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone: 512.236.2000
Facsimile: 512.236.2002

Appellee/Plaintiff LMS Consulting LLC

Represented by:

Taylor Dunham and Rodriguez LLP               Law Offices of Alejandro Mora PLLC
David E. Dunham                               Alejandro Mora
State Bar No. 06227700                        alejandro@morahealthcarelaw.com
ddunham@taylordunham.com                      7000 North Mopac Expressway
Isabelle M. Antongiorgi                       Suite 200
State Bar No. 24059386                        Austin, Texas 78731
ima@taylordunham.com                          Telephone: 512.514.6683
Jennifer Tatum Lee                            Facsimile: 888.320.0589
State Bar No. 24046950
301 Congress Avenue, Suite 1050
Austin, Texas 78701
Telephone: 512.473.2257
Facsimile: 512.478.4409
      1
          Former Defendant Personal Touch Home Services of NY, Inc., which was dismissed
from the case on November 7, 2014 and is not a party to this appeal. Defendants PT Home
Services of Dallas, Inc. and PT Home Services of San Antonio, Inc. are not parties to this
interlocutory appeal but remain parties in the lawsuit.
Brief of Appellee LMS Consulting LLC                                         Page i
                                         TABLE OF CONTENTS




IDENTITY OF THE PARTIES AND COUNSEL ....................................................i

STATEMENT OF THE CASE .................................................................................vi

STATEMENT REGARDING ORAL ARGUMENT ............................................ vii

ISSUES PRESENTED........................................................................................... viii

INTRODUCTION ..................................................................................................... 1

STATEMENT OF FACTS ........................................................................................ 3

I. Appellants Do Business in Texas as "Personal Touch Home Care, Inc." ............ 5

         A.        The Personal Touch Home Care, Inc. Website ..................................... 6

         B.        Appellants Contracted with LMS under the false name
                   "Personal Touch Health Care Inc." ..................................................... 10
         C.        Appellants Control the Operations of "Personal Touch Home
                   Care Inc." and Performed Pursuant to the Contracts with LMS ......... 12

II. Appellants' Disavow Doing Business as "Personal Touch Home Care,
    Inc." After Years of Performance under the Contracts with LMS
    Consulting ........................................................................................................... 15

III. Plaintiff's Allegations and Appellants' Special Appearance............................... 16

SUMMARY OF ARGUMENT ............................................................................... 18




Brief of Appellee LMS Consulting LLC                                                                      Page ii
ARGUMENTS AND AUTHORITIES ................................................................... 19

I. Standards of Review ........................................................................................... 19

         A.        Personal Jurisdiction............................................................................ 21

         B.        Burdens on a Special Appearance ....................................................... 23

II. Appellants' Contacts with Texas Are More Than Sufficient to Establish
    Specific Jurisdiction and Provide Ample Grounds for Asserting General
    Jurisdiction .......................................................................................................... 25

         A.        Appellants Failed to Negate Jurisdiction Arising out of their
                   "Personal Touch Home Care, Inc." Recruitment and Staffing
                   Contracts .............................................................................................. 26

         B.        Appellants Failed to Negate the Allegation That They Recruit
                   Employees in Texas and Contracted with Texas Residents ................ 32

         C.        Appellants Failed to Negate that They Had Committed a Tort,
                   In Whole or In Part, In this Sate .......................................................... 34

         D.        Appellants Fail to Demonstrate that the Exercise of Jurisdiction
                   Does Not Comport with Traditional Notions of Fair Play and
                   Substantial Justice ............................................................................... 34

III. Alternatively, the Texas Contacts of PT Dallas and PT San Antonio
     Should Be Attributed to Appellants Pursuant to Jurisdictional Veil
     Piercing Doctrine ................................................................................................ 35

CONCLUSION ........................................................................................................ 41

PRAYER FOR RELIEF .......................................................................................... 41

CERTIFICATE OF SERVICE ................................................................................ 43

CERTIFICATE OF COMPLIANCE ....................................................................... 43

APPENDIX .............................................................................................................. 44


Brief of Appellee LMS Consulting LLC                                                                      Page iii
                                        TABLE OF AUTHORITIES
                                                                                                                    Page(s)

Cases
Am. Type Culture Collection v. Coleman, 83 S.W.3d 801 (Tex. 2002) .................. 23

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex.
  2002) ...........................................................................................19, 20, 23, 24, 35

Capital Tech. Info. Servs. Inc. v. Arias & Arias Consultores, 240
  S.W3d 741 (Tex. App.—Dallas 2008, pet denied)............................................. 37

Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d 468 (Tex. 2007) ..............23, 37

In re Chinese-Manufactured Drywall Products Liab. Litig., 753 F.3d
    521 (5th Cir. 2014).............................................................................................. 36

El Puerto De Liverpool, S.A. De CV v. Servi Mundo Llantero S.A. De
   CV, 82 S.W.3d 622 (Tex. App.—Corpus Christi 2002, pet. dism'd
   w.o.j.) .................................................................................................................. 36
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,
  815 S.W.2d 223 (Tex. 1991) .............................................................................. 35
Gutierrez v. Cayman Islands Firm of Deloitte & Touche, 100 S.W.3d
  261 (Tex. App.—San Antonio 2002, pet. dism'd) ........................................24, 32
Huynh v. Nguyen, 180 S.W.3d 608 (Tex. App.—Houston [14th Dist.]
  2005, pet. denied)....................................................................................23, 24, 26

Ji-Haw Indus. Co. v. Broquet, No. 04-07-00622-CV, 2008 WL
   441822 (Tex. App.—San Antonio Feb. 20, 2008, no pet.) ....................24, 25, 26

Kelly v. Gen. Interior Const. Inc., 301 S.W.3d 653 (Tex. 2010)...........19, 20, 22, 23
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007)
  ...........................................................................................................19, 20, 23, 24

Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013),
  reh'g denied (Dec. 13, 2013) ..................................................................22, 23, 24
Brief of Appellee LMS Consulting LLC                                                                        Page iv
PHC-Minden LP v. Kimberly-Clark Corp., 235 S.W.3d 163 (Tex.
  2007) ...........................................................................................21, 35, 36, 40, 41
Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829 (Tex. App.—
   Houston [14th Dist.] 2008, pet. denied) ............................................................. 24

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333
   (Tex. 2009)........................................................................................21, 22, 23, 24
San Pedro Impulsora de Inmuebles Especiales, S.A. de C.V. v.
   Villarreal, 330 S.W.3d 27 (Tex. App.—Corpus Christi 2010, no
   pet.) ...............................................................................................................24, 26

Spir Star AG v. Kimich, 310 S.W.3d 868 (Tex. 2010) ......................................21, 23

Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861 (Tex. App.—
  Houston [14th Dist.] 2004, no pet.) .................................................................... 20
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217
   (Tex.2004).....................................................................................................24, 26
Touradji v. Beach Capital P'ship, LP., 316 S.W.3d 15 (Tex. App.—
  Houston [1st Dist.] 2010, no pet.).................................................................24, 34
Watkins v. Isa, No. 04-11-00622-CV, 2012 WL 2021929 (Tex.
  App.—San Antonio June 6, 2012, no pet.) (mem. op.) ...................................... 30

Wright v. Sage Eng'g, Inc., 137 S.W.3d 238 (Tex. App.—Houston [1st
  Dist.] 2004, pet. denied)...................................................................................... 24

Statutes
Tex. Civ. Prac. & Rem. Code § 17.042 ................................................................... 21

Tex. Civ. Prac. & Rem. Code § 17.042 (1), (3) ....................................................... 32

Tex. Civ. Prac. & Rem. Code § 17.042 (2).............................................................. 34

Rules
Tex. R. Civ. P. 120a(3) ......................................................................................18, 25




Brief of Appellee LMS Consulting LLC                                                                       Page v
                           STATEMENT OF THE CASE2
Nature of the Case:           This is a suit for breach of various recruiting and
                              staffing contracts, as well as a case of tortious
                              interference with existing contracts. Appellee alleges
                              that it provided recruiting and staffing services
                              throughout Texas pursuant to contract. Appellants
                              Personal Touch Holding Corp. and PT Intermediate
                              Holding Inc., among other Defendants, are liable for
                              breach of the recruiting and staffing contracts and are
                              also liable for tortious interference with existing
                              contracts.

Course of Proceedings:        Through its pleadings, Appellee named Appellants
                              Personal Touch Holding Corp. and PT Intermediate
                              Holding Inc. along with their subsidiaries, PT Home
                              Services of Dallas, Inc., PT Home Services of San
                              Antonio, Inc. and Personal Touch Home Care of N.Y.,
                              Inc., as Defendants. CR 1-11, 68-79, 269-88.
                              PT Home Services of Dallas, Inc. and PT Home
                              Services of San Antonio, Inc. filed answers. CR 28-39,
                              263-68. Appellants and Personal Touch Home Care of
                              N.Y., Inc. filed special appearances, challenging
                              personal jurisdiction. CR 12-27, 80-108, 109-178, 294-
                              324. Appellee filed several responsive pleadings.
                              CR 40-65, 179-261, 326-334. The special appearance
                              motions were heard by the Honorable Peter Sakai on
                              October 28, 2014. 2 RR 1.

Trial Court Disposition:      On November 7, 2014, the trial court issued orders
                              denying Appellants' special appearances of Appellants
                              and sustaining the special appearance of Personal
                              Touch Home Care of N.Y., Inc. CR 337-341.




       2
         Being dissatisfied with Appellants Personal Touch Holding Corp. and PT Intermediate
Holding, Inc.'s Statement of the Case, Appellee LMS Consulting LLC submits its own pursuant
to Rule 38.2(b).
Brief of Appellee LMS Consulting LLC                                         Page vi
              STATEMENT REGARDING ORAL ARGUMENT
      Pursuant to Texas Rule of Appellate Procedure 38.1(e), Appellee submits

that oral argument will assist the Court in the disposition of this appeal. Although

the law is well-established, the record in this case is extensive and there appears to

be significant disagreement between the parties regarding the issues to be

determined by this Court. Thus, Appellee requests oral argument.




Brief of Appellee LMS Consulting LLC                                    Page vii
                                ISSUES PRESENTED3
1.     Whether Appellants satisfied their burden to negate all potential bases of
       jurisdiction not based on any jurisdictional veil piercing theory, specifically:

              A.     Appellee's assertion of specific jurisdiction arising from
                     Appellants' breach of their "Personal Touch Home Care, Inc."
                     recruiting and staffing contracts with Appellee which called for
                     and were performed in Texas for over two years;

              B.     Appellee's assertion of specific jurisdiction arising from
                     Appellants' recruitment of Texas residents for employment with
                     "Personal Touch Home Care, Inc." made pursuant to the
                     recruiting contracts that form the bases of Appellee's claims;

              C.     Appellee's assertion of specific jurisdiction arising from
                     Appellants' tortious interference with Appellee's contracts with
                     its contractors who worked in Texas; and

              D.     Appellee's assertion of general jurisdiction based on Appellants'
                     continuous and systematic contacts with Texas as "Personal
                     Touch Home Care, Inc." and otherwise.

2.     Whether the exercise of jurisdiction in this case complies with traditional
       notions of fair play and substantial justice.

3.     Whether Appellants exercised sufficient control over their Texas
       subsidiaries to justify attributing the contacts of their Texas subsidiaries to
       Appellants.




       3
         Being dissatisfied with Appellants Personal Touch Holding Corp. and PT Intermediate
Holding, Inc.'s identification of the issues, Appellee LMS Consulting LLC submits its own
pursuant to Rule 38.2(b).


Brief of Appellee LMS Consulting LLC                                        Page viii
TO THE HONORABLE COURT OF APPEALS:

                                 INTRODUCTION
      The trial court's order dismissing Appellant/Defendants Personal Touch

Holding Corp. and PT Intermediate Holding, Inc. ("PT Intermediate") should be

affirmed because Appellants have failed to satisfy their burden to negate all

potential bases of jurisdiction. Appellants' brief is based upon a fallacy—namely

that the only possible means for establishing personal jurisdiction is via

jurisdictional veil piercing.

      Plaintiff/Appellee LMS Consulting LLC ("LMS Consulting") has asserted

(and the record supports) both general and specific jurisdiction due to Appellants'

conduct directed at Texas, and Appellants have failed to satisfy their burden to

negate these potential bases for jurisdiction.

      Representing themselves to Appellee and the public as "Personal Touch

Home Care, Inc.," Appellants entered into over 20 recruiting and staffing contracts

with Appellee. These contracts called for LMS Consulting to supply Appellants'

Texas operations with personnel and facilitated Appellants' recruitment of Texas

residents for employment in this state. Appellee asserts that Appellants breached

these contracts by, among other things, failing to pay amounts owed.

      Additionally, Appellee asserts that Appellants committed an intentional tort,

purposefully directed at Texas. When the parties' relationship soured, Appellants




Brief of Appellee LMS Consulting LLC                                   Page 1
induced Appellee's contractors to breach their contracts with Appellee and begin

working directly for Appellants or for Appellee's competitors.

      The only evidence Appellants offer to negate these jurisdictional bases is the

unsubstantiated assertion that they do not do business as "Personal Touch Home

Care, Inc." However, the record is replete with evidence that the Appellants did

business as "Personal Touch Home Care, Inc." Appellants presented themselves

to Appellee and the rest of the world as "Personal Touch Home Care, Inc.,"

controlled all significant aspects of the "Personal Touch Home Care, Inc."

business, and performed as "Personal Touch Home Care, Inc." for over two years

pursuant to the contracts at issue. For over two years, Appellants made the hiring

decisions with respect to persons referred by Appellee to "Personal Touch Home

Care, Inc." and paid Appellee's invoices that pertained to its Texas-based activities.

      The trial court's denial of Appellants' special appearance should be affirmed

because Appellants failed to satisfy their burden to negate all bases of jurisdiction

and the evidence is more than sufficient to support the trial court's determination.

      Alternatively, should the Court find that Appellants satisfied their burden to

negate all possible bases of jurisdiction (not based on a veil piercing theory,) the

contacts of Appellants' Texas subsidiaries, Defendants PT Home Services of

Dallas, Inc. ("PT Dallas") and PT Home Services of San Antonio, Inc. ("PT San

Antonio"), should be attributed to Appellants for jurisdictional purposes because



Brief of Appellee LMS Consulting LLC                                     Page 2
Appellants control the internal business operations and affairs of these Texas

subsidiaries.

                               STATEMENT OF FACTS4
        Appellants Personal Touch Holding Corp. and PT Intermediate, as well as

Defendants PT Dallas and PT San Antonio, are all part of a family of corporations

based out of Bayside, New York5 that identifies itself and does business as

"Personal Touch Home Care, Inc." CR 60-65 ("Personal Touch Home Care, Inc.

began operations in 1974 and since then has grown into a national company with

over 50 locations in 12 states."); CR 62-64; CR 233-235, CR 237-239; CR 241;

CR 247, CR 260-261; CR 49-53 at ¶¶ 3, 5-6, 8, 18.

        Appellants operate and control the business of "Personal Touch Home Care,

Inc."       PT Intermediate is a subsidiary of Personal Touch Holding Corp.

Defendants PT Dallas and PT San Antonio are two of many subsidiaries of PT

Intermediate and indirect subsidiaries of Personal Touch Holding Corp. CR 294.

        As characterized by Appellants' counsel, his "client is a home health agency

that operates in 11 states, . . . including Texas." 2 RR 5:1-2; see also CR 60-65.


        4
         Being dissatisfied with Appellants Personal Touch Holding Corp. and PT Intermediate
Holding, Inc.'s Statement of Facts, Appellee LMS Consulting LLC submits its own pursuant to
Rule 38.2(b).
        5
         The corporate office is located at 22215 Northern Boulevard, Third Floor, Bayside,
New York, 11361. It is the official principal office and place of business for both Appellants and
PT San Antonio and PT Dallas. CR 190-91 at Interrogs. 2, 3; CR 324 at ¶ 9; App. 1, Balk Dep.
6:14-19, 17:15-18:1.


Brief of Appellee LMS Consulting LLC                                               Page 3
      No business entity incorporated and chartered under any state's laws called

"Personal Touch Home Care, Inc." actually exists.        See 2 RR 35:21-36:19.

Further, Appellants do not present themselves by their proper names or otherwise

distinguish between any of the corporate entities, and did not do so in their

interactions with Appellees. See CR 49 at ¶ 3; CR 233-35, 237-39, 243-46; CR 60-

65.

      Appellants use the appellation "Personal Touch Home Care Companies" to

collectively refer to Appellants and all of their subsidiaries, including PT Dallas

and PT San Antonio. App. 1, Balk Dep. 8:11-9:10; CR 93 at ¶ 2; CR 128 at ¶ 2;

CR 170 at ¶ 2; CR 172 at ¶ 2; CR 322 at ¶ 2.       Appellee will employ the same

definition herein and will use "Personal Touch Home Care Company" to refer to

any and all of these entities.

      Appellee LMS Consulting is a recruiting and staffing consulting company.

CR 49 at ¶ 2.    Throughout 2011 and 2012, LMS entered into more than twenty

staffing and recruiting agreements with "Personal Touch Home Touch Inc." to

provide staff for its Texas operations. CR 49-50 at ¶ 3; e.g. CR 233-235, 237-239;

CR 274-76 at ¶¶ 15-17.

      The parties did business in Texas pursuant to these contracts for over two

years; Appellants paid LMS Consulting pursuant to these very contracts. See App.

1 Balk Dep. 24:1-9; CR 173 ¶ 4; CR 52 at ¶ 17.



Brief of Appellee LMS Consulting LLC                                  Page 4
      Appellants no longer wish to pay the agreed upon rates and are attempting to

disavow the alias "Personal Touch Home Care, Inc." to avoid contractual liability.

According to Appellants, "Personal Touch Home Care, Inc." does not exist and the

continuous use of the name in their contracts, marketing, and communications over

the past 20 plus years was simply a matter of "inadvertence," a mistake. 2 RR

35:21-36:19, 42:5-10; see also App1, Balk Dep. 15:19-16:16, 17:15-18:7

Appellants allege that none of the Personal Touch Home Care Companies do

business as "Personal Touch Home Care, Inc." App. 1, Balk Dep. 13:19-22.

I.    Appellants Do Business in Texas as "Personal Touch Home Care, Inc."
      The Personal Touch Home Care Companies descend from a New York

entity formally incorporated as "Personal Touch Home Care, Inc." in 1974. CR 60.

In 1992, this entity changed its name to "Personal Touch Home Care of NY, Inc." 6

CR 52 at ¶ 19; App. 1Balk Dep. 13:23-10; 2 RR 23:20-21. However, as further

detailed herein, Appellants are "Personal Touch Home Care, Inc.":

      (a) Appellants have presented themselves to Appellee and the world as
         "Personal Touch Home Care, Inc.," CR 60-65 (Personal Touch Website);
         CR 256; CR 286; CR 49-51 ¶¶ 3, 5, 6, 10, 17;

      (b) Appellants have contracted as "Personal Touch Home Care, Inc.,"
         including the contracts with Appellee and in the separate contracts with
         Texas residents hired pursuant to LMS's recruiting efforts, CR 233-235,
         237-239, CR 241; CR 247, CR 260-261; CR 49 at ¶ 3;



      6
          Personal Touch Home Care of NY, Inc. is no longer a party to this proceeding. CR 337.


Brief of Appellee LMS Consulting LLC                                             Page 5
      (c) Appellants performed as "Personal Touch Home Care, Inc." pursuant to
          the contracts with LMS; Appellants made the personnel decisions with
          respect to LMS referrals and paid (or did not pay) LMS's invoices, CR
          49-52 at ¶¶ 8-9, 13-14, 17; CR 248-56;

      (d) Appellants control and manage the operations of "Personal Touch Home
         Care, Inc.," including the operations in Texas, through a handful of
         executives in Bayside, New York, see CR 191-92 at Interrogs. 5, 6;
         App.1, Balk Dep. 18:17-19, 24:16-20; CR. 52 ¶ 17; CR 172 at ¶ 2; see
         also CR 57; and

      (e) Appellants pay taxes as "Personal Touch Home Care, Inc." in Texas, see
          CR 286.

             A.     The Personal Touch Home Care, Inc. Website
      All of the Personal Touch Home Care Companies market their services

through a single website controlled entirely by Appellants, www.pthomecare.com

(the "Personal Touch Website"). CR 60-65; CR 324 at ¶ 9; App. ___ Balk Dep.

10:11-13, 14:11-13, 18-20.         All of the email addresses of the various

representatives of the Personal Touch Home Care Companies reflected on the

correspondence      with    LMS        Consulting   utilizes   the   domain      name

"pthomecare.com." CR. 50 at ¶ 5; e.g. CR 248-56.

      The Personal Touch Website states that "Personal Touch Home Care, Inc.

began operations in 1974 and since then has grown into a company with over 50

locations in 12 states" and each page lists Appellants' Bayside, New York office as

the "Contact" address for "Personal Touch Home Care, Inc." CR 60-65; CR 191 at




Brief of Appellee LMS Consulting LLC                                    Page 6
Interrog. No. 3. None of the webpages appear to identify any of the Personal

                Companies proper names. See CR 60-65.
Touch Home Care Companies'

                      PERSONAL TOUCH HOMEPAGE EXCERPTS7




      7
          CR 60-65.


Brief of Appellee LMS Consulting LLC                            Page 7
                                              EXCERPTS8
       PERSONAL TOUCH TEXAS LOCATIONS WEBPAGE EXCE




      8
          CR 62-63.


Brief of Appellee LMS Consulting LLC           Page 8
      As reflected on the preceding page, until it became an issue in this suit,

App. 1, Balk Dep. 15:23-16:17, 18:2-7, the Personal Touch Website identified the

Texas locations (as well as every other location) as an office of "Personal Touch

Home Care, Inc." CR 62-63; see also CR 64-65. Like every other page, the Texas

locations page listed the Appellants' Bayside, New York office as the "Contact"

address for "Personal Touch Home Care, Inc." CR 62-63; see also CR 64-65.

      When the Vice President of Operations for all of the Personal Touch Home

Care Companies, Dr. Trudy Balk, was asked about the website's repeated

invocation of "Personal Touch Home Care, Inc.," she replied that its use "was a

mistake." App. 1, Balk Dep. 18:2-5. Contrary to representations in her subsequent

affidavit, at her deposition Dr. Balk testified that the Appellants' Bayside office

was the proper contact address for the Texas locations of "Personal Touch Home

Care, Inc.":

               Q:   This page lists the Texas location contact address as 222-
                    15 in Bayside, New York. . . . Is that the correct contact
                    address?

      Dr. Balk:     Yes. That's the corporate office.

               Q:   And this website shows that the name of the Texas
                    locations is "Personal Touch Home Care, Inc.," correct?

      Dr. Balk:     Yes. As we said, it was a mistake.

App. ___ Balk Dep. 17:22-18:5; see also id. at 10:11-13; CR 190-191 at

Interrogs. 2, 3; Cf. CR 324 at ¶ 11.


Brief of Appellee LMS Consulting LLC                                    Page 9
      B.     Appellants Contracted with LMS under the false name
             "Personal Touch Health Care Inc."
      As exemplified in the following image, all the contracts with LMS

Consulting identify "Personal
                     Personal Touch
                              T     Home Care, Inc." as the signatory.




CR 233-35, 237-39. The listed Weslaco address for "Personal
                                                   Personal Touch Hom
                                                                  Home Care,

Inc." on the contracts is identical
                          identic to that which appears adjacent to Appellants
                                                                    Appellants'

Bayside, New York address on their website. CR 62-63.




Brief of Appellee LMS Consulting LLC                                Page 10
       Dr. Balk is one of a handful of executives based out of Bayside, New York

who control and operate "Personal Touch Home Care, Inc."9                 She has been with

the company for 28 years and works out of the New York corporate offices.;

CR 170 at ¶ 2; CR 50 at ¶ 6. As Vice President of Operations for all of the

Personal Touch Home Care Companies, she is charged with supervising all of the

offices across the country, including the Texas offices. CR 170 at ¶ 2; CR 50 at ¶ 6;

App. 1, Balk Dep. 9:17-10:10, 30:1-5.

       Ms. Elizabeth De la Rosa, the representative that signed the contracts on

behalf of signatory "Personal Touch Home Care, Inc.," reports to Dr. Balk. CR 50

¶ 6; App. 1, Balk Dep. 11:11-18. Dr. Balk testified that Ms. De la Rosa, regional

administrator for the Texas offices, did not have authority to enter into these

contracts. App. 1, Balk Dep. 12:22-13:18 (Dr. Balk: "She was not authorized to

sign legal agreements on . . . behalf of the company.") Thus, it would appear that

Dr. Balk and Appellants dictate what contracts are to be entered into for the Texas

operations, though Dr. Balk denies having knowledge of the LMS contracts. Id. at

12:22-13:1.




       9
          The same executives control and manage Appellants and all of the subsidiaries,
including the Texas entities PT Dallas and PT San Antonio. Dr. Felix L. Glaubach is the
president and/or a director of the Personal Touch Home Care Companies; Mr. Robert Marx is a
director and/or vice president; Mr. Anthony Castiglione is the vice president and treasurer; and
Ms. Lorigay Laskin is the "contract manager." See CR 191-92 at Interrogs. 5, 6; App. 1, Balk
Dep. 18:17-19, 24:16-20; CR. 52 ¶ 17; CR 172 at ¶ 2; see also CR 57.


Brief of Appellee LMS Consulting LLC                                            Page 11
       C.     Appellants Control the Operations of "Personal Touch Home
              Care Inc." and Performed Pursuant to the Contracts with LMS
       Appellants performed under these "Personal Touch Home Care, Inc."

contracts with LMS for over two years.         Appellants are heavily involved in

managing human resources for the Personal Touch Home Care Companies,

including the Texas offices. Dr. Balk's duties as Vice President of Operations

include supervision of each offices' "personnel for sure." App. 1, Balk Dep. 9:17-

10:10, 30:1-5.

       All Texas personnel decisions made with referrals from Appellee were

controlled by the corporate office and Dr. Balk. CR 42 at ¶ 13; see also CR 49-53

at ¶¶ 6, 14-16; CR 248, 250, 251, 253.

       Routine correspondence from Personal Touch Home Care representatives

exchanged with LMS regarding the staffing and recruiting contracts that are at

issue in this case:

       — "Please do not shoot the messenger, but one of the owners daughters in
         New York niece [sic] has decided to consider the LVN position in
         Dallas. . . . [I]f this corporate plan falls through I want to go with Twyla
         at the $35.00 rate." CR 255.

       — "I am having to send all the resumes to corporate before we set up
         interviews." CR 248.

       — "[C]orporate will not let me hire her. . . . I really liked liz [sic] for the
         job but, it is not my decision." CR 250.

       — "I think I have [an interview] through the head hunter from corporate."
         CR 251.


Brief of Appellee LMS Consulting LLC                                    Page 12
      — "Corporate has approved Erika in El Paso. She will be in San Antonio
        with me next week for Training." CR 253.

      The New York personnel of Appellants prepared a referral form specifically

for LMS Consulting's use in Texas. CR 51 at ¶ 10; CR 256.

      Employment applications filled out by LMS Consulting recruits, as well as

employment offers made to and accepted by LMS Consulting recruits for

employment in Texas, list "Personal Touch Home Care, Inc." as the employer. E.g.

CR 257, 260-61; 2 RR 28:12-30:5.

      Appellants managed the payroll and employee benefits for all of LMS

recruits and staff ultimately engaged to provide services for the Personal Touch

Home Care, Inc. Texas operations. App. 1, Balk Dep. 9:17-10:10, 19:25-20:22,

30:1-5, 9-13. Appellants manage payroll and employee benefits for all of the

Personal Touch Home Care Companies, including the Texas operations. App. 1,

Balk Dep. 9:17-10:10, 19:25-20:22, 30:1-5, 9-13.

      Appellants paid Appellee for the Texas recruiting and staffing services

provided by LMS Consulting from Appellants' master account; and     decisions

about whether to pay or not pay LMS came from Dr. Balk and the Appellants in

New York. See App. 1, Balk Dep. 24:1-9; see also id at 22:21-23:2; CR 51-52 at

¶¶ 8, 14, 16-17; CR 173 at ¶ 4. Appellants handle the accounting and finances for

the Texas operations (as they do for all of the Personal Touch Home Care




Brief of Appellee LMS Consulting LLC                                Page 13
Companies), including accounts payable and receivable and taxes. App.1, Balk

Dep. 22:1-11, 22:21-23:2, 24:1-9; CR 173 ¶ 4; CR 57. CR 324-25 at ¶¶ 14, 15.

      Appellants control the master account that is used to manage the funds of all

of the Personal Touch Home Care Companies, including the Texas operations.

App. 1, Balk Dep. 22:1-11, 22:21-23:2, 24:1-9; CR 173 ¶ 4.            As Dr. Balk

testified, "It all comes from one pot." App.1, Balk Dep. 22:10.

      Appellants also managed the invoicing and receivables for all of the

Personal Touch Home Care Companies, including the Texas operations. [cite].

Thus, Appellants billed and collected from Texas clients for the services provided

out of the "Personal Touch Home Care, Inc." Texas offices, including services

provided by LMS staff or recruits. App. 1, Balk Dep. 28:4-21; [cite Castiglione

Aff]; CR 254 (email referencing the involvement of "corporate" in retrieving

Medicaid payment for services provided in Texas through an LMS Consulting staff

placement).

      Initially, Dr. Balk testified that PT Intermediate handled human resources

matters, billing and invoicing, and accounts payable for the Personal Touch Home

Care Companies (and also identified PT Intermediate as her employer), but

corrected herself in her errata sheet and identified Personal Touch Holding Corp.

as the entity that performed these functions. App. 1, Balk Dep. 19:25-20:22,

24:16-20, 30:9-15. It appears that she did not change everything that needed



Brief of Appellee LMS Consulting LLC                                 Page 14
correcting however, because her October 5, 2014 affidavit conflicts with her

deposition testimony and other sworn statements. See infra pp. 29-32.

II.   Appellants' Disavow Doing Business as "Personal Touch Home Care,
      Inc." After Years of Performance under the Contracts with LMS
      Consulting
      Despite the extensive evidence to the contrary, Appellants deny that they do

business as "Personal Touch Home Care, Inc."           Cf. CR 60-65; CR 233-235,

CR 237-239; CR 241; CR 247, CR 260-261; CR 49-53 at ¶¶ 3, 5-6, 8, 18. When

asked to explain their continued use of that appellation by the trial court,

Appellants called the operation of business under a false corporate name for the

past two decades—a name that lacks registration or other charter—"inadvertence":

           Court:    Mr. James, can you respond?

      Mr. James:     Yes, your Honor. First and foremost, Personal Touch
                     Home Care, Inc. has not been sued and is not a
                     defendant and is not before this Court.

           Court:    So there is a separate incorporation. Personal Touch
                     Home Care, Inc., . . . is a separate entity?

      Mr. James:     It is absolutely a separate entity. And it is -- and it is
                     not sued.

           Court:    Does it exist at this time?

      Mr. James:     I don't think that it exist. [sic] I think that it was
                     inadvertence on behalf of the holding company to
                     maintain that name, but it is unequivocal. I mean
                     Mr. Mora just said on the record that Personal Touch
                     Home Care, Inc. changed its name to Personal-Touch




Brief of Appellee LMS Consulting LLC                                   Page 15
                     Home Care of N.Y., Inc. That was 22 years ago, Your
                     Honor. The name was changed then.

                     The fact that he has the -- and the website has been
                     changed, as well, I mean, they -- and, again, there was
                     no question that there was inadvertence. . . .
                                                ...

           Court:    But yet on their advertisement . . . their stationery,
                     they're all using Personal Touch Home Care, Inc.,
                     correct?

       Mr. James:    Yes sir. Your Honor it was inadvertence and that's
                     been changed.

2 RR 35:21-36:19; see also App. 1, Balk Dep. 15:19-16:16, 17:15-18:7.

III.   Plaintiff's Allegations and Appellants' Special Appearance
       Appellee pleads both specific and general personal jurisdiction as to

Appellants. Specifically, Plaintiff's Second Amended Petition provides

             The Court has jurisdiction over defendants PT
             Intermediate and Personal Touch Holding because each
             of them committed an intentional tort of which Plaintiff
             complains herein and such action constituting this
             intentional tort was purposefully directed to Texas. The
             Court has jurisdiction over defendants PT Intermediate
             and/or Personal Touch Holdings also because both of
             these entities purposefully availed themselves of the
             benefits of conducting business in Texas. . . .




Brief of Appellee LMS Consulting LLC                                 Page 16
                                        Count 1
                                   Breach of Contract
                                (Staffing Agreements)
                                10
              . . . Defendants entered into valid and enforceable
              Staffing Agreements with LMSC. . . . Defendants
              breached their obligations to pay LMSC amounts due
              under the Staffing Agreements. . . . .

                                             ...

                                        Count 2
                                   Breach of Contract
                                (Recruiting Agreements)
              . . . Defendants entered into valid and enforceable
              Recruiting Agreements with LMSC. . . . Defendants
              breached their obligations to pay LMSC amounts due
              under the Staffing Agreements. . . . .

                                        Count 3
                                  Tortious Interference
              . . . All of the Defendants knew that LMSC has contracts
              with these persons, including but not limited to Angela
              Dickson, Carla Clark, and Hollie Richard. . . .
              Defendants . . . willfully and intentionally interfered with
              those contracts by soliciting those individuals to
              terminate their contracts with LMSC. . . . Defendants'
              willful and intentional interference with LMSC's
              contracts with Angela Dickson, Carla Clark, and Hollie
              Richard, and others constitute actions directed at
              residents of Texas and directed toward Texas. . . .

CR 269-288 at ¶¶ 11, 31-32, 35-36, 39-41.




       10
         "Defendants" is defined in Plaintiff's Second Amended Petition as including Appellants
PT Intermediate Holding, Inc. and Personal Touch Holding Corp. See CR 269.


Brief of Appellee LMS Consulting LLC                                           Page 17
       In the alternative, Appellee asserts specific and general personal jurisdiction

over Appellants pursuant to the doctrine of jurisdictional veil piercing. CR 272 at ¶

11.

      Considering the record in its entirety the including "the pleadings, . . . such

affidavits and attachments as may be filed by the parties, the results of the

discovery processes, and any oral testimony," Tex. R. Civ. P. 120a(3), the

Honorable Peter Sakai, denied Appellants' special appearances. CR 339-42.

                          SUMMARY OF ARGUMENT
       The trial court's denial of Appellants' special appearances should be

affirmed because Appellants failed to satisfy their burden to negate all possible

bases for jurisdiction and the trial court's implied findings are supported by more

than a scintilla of evidence.

      Appellants' recruiting and staffing contracts with LMS Consulting, made

under the guise of "Personal Touch Home Care, Inc.," facilitated and resulted in

Appellants' recruitment of Texas residents for employment in Texas. These facts,

which form the heart of Appellee's claims, are sufficient to establish both specific

and general jurisdiction.       Appellants' conclusory assertion that they are not

"Personal Touch Home Care, Inc." is not sufficient to overcome the great weight of

the evidence, which supports the implied finding that Appellants are in fact

"Personal Touch Home Care, Inc."




Brief of Appellee LMS Consulting LLC                                    Page 18
      Additionally, with respect to the tortious interference claim, the Appellants

have offered absolutely no evidence to negate Appellee's assertion that Appellants

intentionally tortiously interfered with its contracts with LMS Consulting's Texas

contractors.

       Alternatively, if the Court finds that Appellants satisfied their burden to

negate the foregoing bases for jurisdiction, it nonetheless should affirm the trial

court's determinations under a jurisdictional veil piercing analysis. The "Personal

Touch Home Care, Inc." contacts Appellants would attribute solely to Defendants

PT Dallas and PT San Antonio are properly attributed to Appellants in virtue of

their extensive control over the operations and affairs of the Texas operations and

the LMS contracts.

                      ARGUMENTS AND AUTHORITIES
I.    Standards of Review
      A trial court's determination of a nonresident's special appearance is

reviewed de novo. Kelly v. Gen. Interior Const. Inc., 301 S.W.3d 653, 657 (Tex.

2010) ("Whether a court can exercise personal jurisdiction over a nonresident

defendant is a question of law."); Moki Mac River Expeditions v. Drugg, 221

S.W.3d 569, 574 (Tex. 2007) (hereinafter "Moki Mac"); BMC Software Belgium,

N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002) (hereinafter "BMC").

      "When as here, the trial court does not issue findings of fact and conclusions

of law with its special appearance ruling, all facts necessary to support the


Brief of Appellee LMS Consulting LLC                                  Page 19
judgment and supported by the evidence are implied." Kelly, 301 S.W.3d at 657;

Moki Mac, 221 S.W.3d at 574; BMC, 83 S.W.3d at 795.

      "When the appellate record includes the reporter's and clerk's records, these

implied findings may be challenged for legal and factual sufficiency." BMC, 83

S.W.3d at 795.

      The same legal and factual sufficiency standard of review applies when, as is

the case here, an appellant requests conclusions of fact and law but the trial court

declines to file any. See Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 867-69

(Tex. App.—Houston [14th Dist.] 2004, no pet.) ("Tempest does not provide any

authority supporting a de novo review of implied fact findings in this circumstance.

. . . Accordingly, we will review any implied findings of fact for legal and factual

sufficiency.").

      A legal sufficiency challenge fails if there is more than a scintilla of

evidence to support the challenged finding. Id. at 868. "In reviewing a factual

sufficiency challenge, [the appellate court will] set aside the trial court's decision

only if its ruling is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and manifestly unjust." Id.

      "If a reviewing court determines that a conclusion of law is erroneous, but

the trial court rendered the proper judgment, the erroneous conclusion of law does

not require reversal." Id. at 794.



Brief of Appellee LMS Consulting LLC                                    Page 20
      A.     Personal Jurisdiction
      "Texas courts have personal jurisdiction over a nonresident defendant when

(1) the Texas long-arm statue provides for it; and (2) the exercise of jurisdiction is

consistent with federal and state due process guarantees." Spir Star AG v. Kimich,

310 S.W.3d 868, 871 (Tex. 2010).

      The Texas long-arm statute provides as follows:

             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 perform the contract in whole
                  or in part in this state;

               (2) commits a tort in whole or in part in this state; or

               (3) recruits Texas residents, directly or through an
                   intermediary located in this states, for employment
                   inside or outside this state.

Tex. Civ. Prac. & Rem. Code § 17.042.

      The Texas long-arm does not provide an exhaustive list of all activities that

may constituted "doing business;" rather, it identifies some examples.              PHC-

Minden LP v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex. 2007).

      "[T]he Texas long-arm statute's broad 'doing-business' language allows the

statute to reach as far as the federal constitutional requirements of due process will

allow.'" Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337




Brief of Appellee LMS Consulting LLC                                      Page 21
(Tex. 2009) (hereinafter "Retamco"). "Under constitutional due-process analysis,

personal jurisdiction is achieved when (1) the nonresident defendant has

established minimum contacts with the forum state, and (2) the assertion of

jurisdiction complies with 'traditional notions of fair play and substantial justice.'"

Id. at 338

       "A Defendant establishes minimum contacts with a state when it

purposefully avails itself of the privilege of conducting activities within the forum

state, thus invoking the benefits and protections of its laws." Kelly, 301 S.W.3d at

653.   "A nonresident's contacts can give rise to general or specific personal

jurisdiction. . . . Continuous and systematic contacts with a state give rise to

general jurisdiction, while specific jurisdiction exists when the cause of action

arises from or is related to purposeful activities in the state." Moncrief Oil Int'l Inc.

v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013), reh'g denied (Dec. 13, 2013).

       "[S]pecific jurisdiction requires us to analyze jurisdictional contacts on a

claim-by-claim basis." Id. "[I]n some circumstances a single contract may meet

the purposeful-availment standard." Retamco, 278 S.W.3d at 339.

       "Only in rare cases . . . will the exercise of jurisdiction not comport with fair

play and substantial justice when the nonresident defendant has purposefully

established minimum contacts with the forum state." Retamco, 278 S.W.3d at 341.




Brief of Appellee LMS Consulting LLC                                      Page 22
       "When a nonresident defendant has purposefully availed itself of the

privilege of conducting business in a foreign jurisdiction, it is both fair and just to

subject that defendant to the authority of that forum's courts." Spir Star AG, 310

S.W.3d at 872.

       B.     Burdens on a Special Appearance
       Texas "special-appearance jurisprudence dictates that the plaintiff and the

defendant bear shifting burdens of proof in a challenge to personal jurisdiction."

Kelly, 301 S.W.3d at 653.         "[T]he plaintiff bears the initial burden of pleading

allegations sufficient to confer jurisdiction."11 Moncrief Oil Int'l Inc., 414 S.W.3d

at 149; see also Moki Mac, 221 S.W.3d at 574; Retamco, 278 S.W.3d at 337; Am.

Type Culture Collection v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002); BMC, 83

S.W.3d at 793. The fair notice pleading standard applies:

              There is no requirement that plaintiffs . . . plead in their
              petition the theories or bases of personal jurisdiction
              upon which they rely; rather, the only relevant pleading
              requirement flows from the need to plead allegations
              sufficient to bring nonresident defendants within the
              provisions of the long-arm statute. . . . This minimal
              pleading requirement can be satisfied by alleging that
              nonresident defendants are doing business in Texas.

Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.] 2005,

pet. denied) (internal citations omitted).

       11
          The burden shifting scheme does not apply to jurisdictional veil piercing, however.
When seeking to establish jurisdiction through veil piercing, the plaintiff bears the burden of
proof. E.g. Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d 468, 482 (Tex. 2007).


Brief of Appellee LMS Consulting LLC                                           Page 23
      Additionally, the plaintiff's original pleadings, as well as its response to the

defendant's special appearance can be considered in determining whether the

plaintiff satisfied its burden. See Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 249

(Tex. App.—Houston [1st Dist.] 2004, pet. denied).

      "In determining jurisdictional pleas asserted by a defendant, [courts] take as

true the pleadings and allegations of the plaintiff and review the pleadings and

allegations in the light most favorable to the plaintiff." Pulmosan Safety Equip.

Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied); see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex.2004); Ji-Haw Indus. Co. v. Broquet, No. 04-07-00622-CV, 2008 WL

441822, at *2 (Tex. App.—San Antonio Feb. 20, 2008, no pet.); Huynh, 180

S.W.3d at 619; San Pedro Impulsora de Inmuebles Especiales, S.A. de C.V. v.

Villarreal, 330 S.W.3d 27, 38 (Tex. App.—Corpus Christi 2010, no pet.).

      "When the initial burden is met, the burden shifts to the defendant to negate

all potential bases for personal jurisdiction the plaintiff pled." Moncrief Oil Int'l

Inc., 414 S.W.3d at 149 (emphasis added); see also Moki Mac, 221 S.W.3d at 574;

Retamco, 278 S.W.3d at 337; BMC, 83 S.W.3d at 793; See Touradji v. Beach

Capital P'ship, LP., 316 S.W.3d 15, 26 (Tex. App.—Houston [1st Dist.] 2010, no

pet.); Gutierrez v. Cayman Islands Firm of Deloitte & Touche, 100 S.W.3d 261,

268 (Tex. App.—San Antonio 2002, pet. dism'd) as supplemented (Jan. 29, 2003);



Brief of Appellee LMS Consulting LLC                                    Page 24
Ji-Haw Indus. Co. v. Broquet, No. 04-07-00622-CV, 2008 WL 441822, at *4 (Tex.

App.—San Antonio Feb. 20, 2008, no pet.).

      "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 the discovery processes,

and any oral testimony." Tex. R. Civ. P. 120a(3).

II.   Appellants' Contacts with Texas Are More Than Sufficient to Establish
      Specific Jurisdiction and Provide Ample Grounds for Asserting General
      Jurisdiction
      "Personal Home Care, Inc." lacks registration or official charter. See 2 RR

35:21-36:19. It does not have a veil to be pierced. Appellants confuse veil

piercing with what is actually their control of the business operating under the

bogus name "Personal Touch Home Care, Inc." Accordingly, Appellants have

been sued for breaching contracts specific to Texas pertaining to the business they

conduct in Texas under the false name "Personal Touch Home Care, Inc."

      The trial court's orders should be affirmed because Appellants failed to

satisfy their burden to negate all potential bases of jurisdiction.   Specifically,

Appellants failed to negate the following:

      A.     Appellee's assertion of specific jurisdiction arising from Appellants'
             breach of their "Personal Touch Home Care, Inc." recruiting and
             staffing contracts with Appellee which called for and were performed
             in Texas;




Brief of Appellee LMS Consulting LLC                                  Page 25
       B.      Appellee's assertion of general and specific jurisdiction arising from
               Appellants' recruitment of Texas residents for employment with
               "Personal Touch Home Care, Inc." made pursuant to the recruiting
               contracts that form the bases of Appellee's claims; and

       C.      Appellee's assertion of specific jurisdiction arising from Appellants'
               tortious interference with Appellee's contracts with its contractors who
               worked in Texas.

       Appellants also fail to demonstrate that the exercise of jurisdiction in this

case will not comport with traditional of notions of fair play and substantial justice.

       A.      Appellants Failed to Negate Jurisdiction Arising out of their
               "Personal Touch Home Care, Inc." Recruitment and Staffing
               Contracts
       Plaintiff's Second Amended Petition alleges that Appellants did business in

this state and breached various recruiting and staffing agreements wherein

Appellee provided personnel for Appellants' Texas operations for a period of over

two years.12 See CR 269-288 at ¶¶ 11, 31-32, 35-36; see also CR 233-239; CR 49-

53 at ¶¶ 1, 6, 8, 17.

       Appellants failed to present any competent evidence to show that they were

not acting as "Personal Touch Home Care, Inc." in entering into, performing under,

and breaching the 23 contracts that form the bases of LMS Consulting's breach of

contract claims.


       12
          Appellants brief is based on a fallacy—namely the only possible means for establishing
personal jurisdiction is via jurisdictional veil piercing. To the extent there is any ambiguity in the
record, the pleadings must be liberally construed in Appellee's favor. See Tex. Dep't of Parks &
Wildlife, 133 S.W.3d at 226; Ji-Haw Indus. Co., 2008 WL 441822, at *2; Huynh, 180 S.W.3d at
619; San Pedro Impulsora de Inmuebles Especiales, S.A. de C.V., 330 S.W.3d at 38.


Brief of Appellee LMS Consulting LLC                                                 Page 26
      As was made clear at the special appearance hearing, there is no properly

incorporated entity formally registered to conduct business under the name

"Personal Touch Home Care, Inc." 2 RR 35:21-36:19 (Mr. James: "I don't think

that [Personal Touch Home Care, Inc.] exists [sic]. I think that it was inadvertence

on behalf of the holding company to maintain that name.").

      All the Defendants deny doing business as "Personal Touch Home Care,

Inc." App. 1, Balk Dep. at 13:19-22 (Q: "Do the Texas Personal Touch entities

that are under your operational control go by the name of "Personal Touch Home

Care, Inc."? Dr. Balk: "No.").

      However, it is apparent that somebody going by the name "Personal Touch

Home Care, Inc." contracted with Appellee to provide recruitment and staffing

services for operations in Texas and performed pursuant to those contracts for a

period of over two years. See e.g. CR 233-35, 237-39; CR 49-53. The record is

replete with assertions and evidence that Appellants are "Personal Touch Home

Care, Inc." including the following:

       (a) Appellants presented themselves to Appellees as "Personal Touch
           Home Care, Inc." and represented to Appellee that they were managed
           and controlled from Appellants' Bayside, New York office, CR 233-35,
           237-39; CR 60-65; CR 49 at ¶¶ 3, 5-6, 8, 13-14, 17-18; App. 1, Balk
           Dep. CR 248-256;




Brief of Appellee LMS Consulting LLC                                  Page 27
      (b) Appellants exclusively manage and control the Personal Touch
          Website, www.pthomecare.com, CR 324 at ¶ 9, through which they
          have presented themselves to Appellee and the world as operating by
          the name "Personal Touch Home Care, Inc." CR 60-65. Appellants do
          not identify any proper corporate names or otherwise distinguish any
          corporate entities. CR 248-56. The “Personal Touch Home Care, Inc.”
          emails used to correspond with Appellee throughout the parties' course
          of dealings, all end with "@pthomecare.com," CR 50 at ¶ 5; CR 248-
          56.

      (c) Although Appellants appear to control the contracting for the Texas
          operations, App. 1, Balk Dep. 12:11-18, 22-13:4, 12-18, they made no
          effort to name a proper and distinct entity in their (1) contracts with
          Appellee, CR 233-35, 237-39; or (2) their contracts with Texas
          residents referred to Appellants by LMS Consulting as "Personal Touch
          Home Care, Inc.’" e.g., CR 260-261, CR 247;

      (e) Appellants made the personnel decisions with respect to the persons
          LMS Consulting had referred Appellants to for employment in Texas;
          CR 50 at ¶¶ 8-9, 13-14, 17; CR 248-56;

      (f) Appellants paid—and decided when not to pay—LMS Consulting's
          invoices for the Texas recruiting and staffing services it provided out of
          an account managed and controlled by Appellants, CR 50 at ¶¶ 8-9, 13-
          14, 17; CR 173 ¶ 4; App. 1, Balk Dep. 24:2-9;

      (g) Appellants paid the employees and staff that were engaged as a result of
          the LMS Consulting's recruitment and staffing services—and all other
          Texas vendors and employees—through an account managed and
          controlled by Appellants, CR 173 at ¶ 4; App. 1, Balk Dep. 22:4-11, CR
          324-25 at ¶ 14;

      (h) To the extent provided, Appellants provided the employment benefits
          for all of the Texas operations' employees, including those referred by
          LMS Consulting, CR 324 at ¶ 12, App. 1, Balk Dep. 19:19-20:22, 30:9-
          13;

      (i) Appellants handled the accounts receivable for the Texas operations,
          which including managing the billing for the Texas clients and
          receiving the payments for services provided to Texas clients, including


Brief of Appellee LMS Consulting LLC                                  Page 28
           those receiving services from LMS referred staff CR 173 at ¶ 4, App. 1,
           Balk Dep. 21:10-25, 28: 15-21;

      (j) Appellants' Bayside, New York, corporate office is the proper contact
          address for the Texas locations and is also the official principal office
          for PT San Antonio and PT Dallas;

      (k) Dr. Balk, Vice President of Operations for all of the Personal Touch
          Home Care Companies oversees the Texas operations. App. 1, Balk
          Dep. 9:17-10:10, 30:1-5. She is one of a handful of executives who
          control the "Personal Home Touch Inc." business out of Appellants'
          corporate Bayside, New York office. See supra Note 9. Ms. De la
          Rosa, the Texas regional administrator who signed the contracts on
          behalf of "Personal Touch Home Care, Inc." reports to Dr. Balk, CR
          233-35, 237-39, CR 49-53 at ¶ 6; and

      (l) Appellants pay taxes as "Personal Touch Home Care, Inc." in Texas,
          see CR 286.

      Appellant fail to present any competent or credible evidence to negate these

assertions that they were doing business as "Personal Touch Home Care, Inc." in

Texas with Appellees.

      The only evidence presented to negate the implied finding that they are

"Personal Touch Home Care, Inc." and that they performed pursuant to these

contracts is the conclusory testimony of Dr. Trudy Balk and the mea culpa plea of

"mistake." App. 1, Balk Dep. 16:22, CR 94 at ¶94; CR 322 at ¶ 6.

      Until the issue was raised in this lawsuit, Appellants presented themselves to

Appellee and the world as a single business operated out of Bayside, New York

only referred to as "Personal Touch Home Care, Inc."      CR 60-65; App. 1, Balk

Dep. 16:19-17:17.      Dr. Balks' assertions that (1) Appellants are not parties to


Brief of Appellee LMS Consulting LLC                                  Page 29
"Personal Touch Home Care, Inc." contracts; (2) that the "Personal Touch Home

Care, Inc." Texas offices are not theirs; and (3) that the Texas residents recruited

for employment with "Personal Touch Home Care, Inc.," are conclusory and not

competent evidence. See Watkins v. Isa, No. 04-11-00622-CV, 2012 WL 2021929

at *3 (Tex. App.—San Antonio June 6, 2012, no pet.) (mem. op.) (“By simply

stating ‘at the time of the accident, Isa was acting within the course and scope of

her employment with Texas Tech University Health Sciences Center,’ McMahon

asserts only a legal conclusion without factual basis or rationale. . . . Affidavit

testimony that is conclusory is substantively defective and amounts to no

evidence.") (citing Coastal Transport Co. v. Crown Cent. Petroleum Corp., 136

S.W.3d 227, 232 (Tex. 2004)).

      Dr. Balk is also not a credible witness. Her sworn testimony is inconsistent

throughout.     For example, on April 7, 2014, Dr. Balk verified interrogatory

responses identifying the Bayside, New York address as the official principal

office of PT San Antonio, PT Dallas, and PT Intermediate.          CR 188-193 at

Interrogs. 2, 3. At her April 30, 2014 deposition, Dr. Balk testified that the

Bayside, New York address was the correct address for PT Intermediate for PT

San Antonio and PT Dallas. App. 1, Balk Dep. 10:11-13, 17:22-18:1. However,

on October 3, 2014 she testified by affidavit that while Appellants share these

offices, PT San Antonio and PT Dallas do not share those offices. CR 324 at ¶ 9.



Brief of Appellee LMS Consulting LLC                                  Page 30
      At her deposition on April 30, 2014, Dr. Balk initially testified that

Appellant PT Intermediate handled human resources matters, billing and invoicing,

and accounts payable for the Personal Touch Home Care Companies (which would

include the Texas operations) and also identified PT Intermediate as her employer.

App. 1, Balk Dep. 19:25-20:22, 24:16-20. She later corrected herself in her errata

sheet and identified Personal Touch Holding Corp. as the entity that performed

these functions. App. 1, Balk Dep. 19:25-20:22, 24:16-20, 30:9-15. On June 3,

2014, by affidavit she testified that Appellant PT Intermediate had no employees

and performed no functions for its subsidiaries, whatsoever, CR 94-95 at ¶¶ 5, 7.

However, her October 3, 2014 affidavit states that Personal Touch Holding Corp.

does not provide billing services to PT Dallas or PT San Antonio. CR 324 at ¶ 13.

      Appellants fail to identify who controls the contracting for the "Personal

Touch Home Care, Inc." operations in Texas. At her deposition, Dr. Balk testified

that Ms. De la Rosa, regional administrator for Texas, did not have authority to

enter into contracts for "the company (though her testimony did imply that she was

the person with authority)." App. 1, Balk Dep. 12:11-18, 22-13:4, 12-18. And by

affidavit on October 3, 2014, Dr. Balk testified that Appellant Personal Touch

Holding Corp. does not approve contracts for the Texas operations, CR 324 at ¶ 10.

Thus, just as Appellants disclaim "Personal Touch Home Care Inc," there is no one

who is charged with entering into contracts for its Texas operations.



Brief of Appellee LMS Consulting LLC                                    Page 31
       Although Appellants may have challenged the allegation that they are and

have operated in Texas as "Personal Touch Home Care, Inc.," they have failed to

effectively negate the bases.     Gutierrez, 100 S.W.3d at 273-74 ("While DT–

Cayman effectively challenged all bases of personal jurisdiction, we are not

persuaded that it negated all bases. . . . We decline to impose on a plaintiff in a

special appearance hearing the burden of proving the elements of liability, as

opposed to showing the cause of action arose from or related to the nonresident's

activities.").


       B.        Appellants Failed to Negate the Allegation That They Recruit
                 Employees in Texas and Contracted with Texas Residents
       The long-arm statute extends specifically to include a non-resident who

"recruits Texas residents, directly or through an intermediary located in this state,

for employment inside or outside this state" and those who contract with Texas

residents when the contract, at least in part, calls for performance in Texas. See

Tex. Civ. Prac. & Rem. Code § 17.042 (1), (3) (emphasis added).

       "Count 2" of Plaintiff's Second Amended Petition is entitled "Breach of

Contract (Recruiting Agreements)." CR 279 at ¶ 34-37. Appellee has pled that

Appellants engaged in the very recruiting activity set forth in the long-arm statute.

CR 279 at ¶¶ 35-36.




Brief of Appellee LMS Consulting LLC                                   Page 32
      Appellants failed to negate the Appellee's allegation that Appellants recruit

employees in Texas.       As should be quite apparent from the recruiting contracts

that form the bases of LMS Consulting's claims, "Personal Touch Home Care,

Inc." has recruited and hired employees to work in Texas. CR 257, 260-61; 2 RR

28:12-30:5, 31:10-32:6.

      The evidence reflects that Appellants controlled all the hiring decisions for

"Personal Touch Home Care, Inc." made with respect to LMS referrals. See CR

248, 250, 251, 253, 255 (emails reflecting Appellant control over hiring decisions);

CR 49-53 ¶¶ 3, 13 (LMS engaged by "Personal Touch Home Care, Inc." and told

that hiring decisions were made by corporate in New York); App. 1, Balk Dep.

12:11-18, 22-13:4, 12-18 (Texas regional administrator not authorized to entered

into contracts on behalf of "company").

      The evidence further reflects that Appellants provided guidance with respect

to the recruiting, CR 51 at ¶ 10, CR 256, paid the salaries and benefits for the

employees working for the operations in Texas, CR 324-25 at ¶¶ 12, 14, CR 173 at

¶ 4, App. 1, Balk Dep. 19:19-20:22, 22:4-11, 30:9-13 and determined whether the

recruiter would be paid. CR 50-51 ¶¶ 6, 8, 14, 16-17.

      Because Appellants failed to negate this basis for both specific and general

jurisdiction, the trial court's order should be affirmed.




Brief of Appellee LMS Consulting LLC                                  Page 33
      C.     Appellants Failed to Negate that They Had Committed a Tort, In
             Whole or In Part, In this Sate
      The long-arm statute specifically allows exercise of personal jurisdiction as

to a non-resident who commits a tort in whole or in part in this state. Tex. Civ.

Prac. & Rem. Code § 17.042 (2).             Appellee properly pled that Appellants

intentionally committed the tort of tortious interference with its existing contracts

in Texas. CR 280 at ¶ 41. Accordingly, Appellants had the burden to negate this

possible basis for jurisdiction with evidence.

      Appellants failed to offer any evidence that they did not tortiously interfere

with Appellee's contracts as alleged. Thus, they have failed to satisfy their burden

to negate this potential basis for jurisdiction. See Touradji, 316 S.W.3d at 26.

      D.     Appellants Fail to Demonstrate that the Exercise of Jurisdiction
             Does Not Comport with Traditional Notions of Fair Play and
             Substantial Justice
      Appellants have presented no evidence of any extraordinary burden imposed

by the exercise of jurisdiction in this case.

             The assertion of personal jurisdiction must comport with
             fair play and substantial justice. In this inquiry, it is
             incumbent upon the defendant to present 'a compelling
             case that the presence of some consideration would
             render jurisdiction unreasonable.' . . . Only in rare cases,
             however, will the exercise of jurisdiction not comport
             with fair play and substantial justice when the
             nonresident defendant has purposefully established
             minimum contacts with the forum state.




Brief of Appellee LMS Consulting LLC                                    Page 34
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d

223, 231 (Tex. 1991).

       Appellants simply make the conclusory assertion belied by the evidence that

they have no operations or offices here. This is insufficient to satisfy their heavy

burden.

III.   Alternatively, the Texas Contacts of PT Dallas and PT San Antonio
       Should Be Attributed to Appellants Pursuant to Jurisdictional Veil
       Piercing Doctrine
       Alternatively, the Court may properly exercise both personal and general

jurisdiction by ascribing to Appellants the contacts of Defendants PT Dallas and

PT San Antonio.

       "Personal jurisdiction may exist over a non-resident defendant if the

relationship between the foreign corporation and [its subsidiary] that does business

in Texas is one that would allow the court to impute the [subsidiary] corporation's

"doing business" to the [parent corporation]." BMC, 83 S.W.3d at 798.

             To 'fuse' the parent company and its subsidiary for
             jurisdictional purposes, the plaintiffs must prove the
             parent controls the internal business operations and
             affairs of the subsidiary. But the degree of control must
             be greater than that normally associated with common
             ownership and directorship; the evidence must show that
             the two entities cease to be separate so that the corporate
             fiction should be disregarded to prevent fraud or
             injustice.

Id. at 799; see also PHC-Minden, LP, 235 S.W.3d at 174.




Brief of Appellee LMS Consulting LLC                                   Page 35
      "[V]eil piercing for purposes of liability ('substantive veil piercing') is

distinct from imputing one entity's contacts to another for jurisdictional purposes

('jurisdictional veil piercing')." PHC-Minden LP, 235 S.W.3d at 174; see also In re

Chinese-Manufactured Drywall Products Liab. Litig., 753 F.3d 521, 546 (5th Cir.

2014) ("This court has noted that 'the alter ego test for attribution of contacts, i.e.,

personal jurisdiction, is less stringent than that for liability.'") (quoting Stuart v.

Spademan, 772 F.2d 1185, 1198 n.2 (5th Cir. 1985)).


             [C]ourts should determine whether the subsidiary is
             "separate and distinct from its parent corporation for
             personal jurisdiction purposes," taking into account the
             amount of the subsidiary's stock owned by the parent
             corporation, the existence of separate headquarters, the
             observance of corporate formalities, and the degree of the
             parent's control over the general policy and
             administration of the subsidiary.

PHC-Minden, 235 S.W.3d at 174 (quoting 4A CHARLES ALAN WRIGHT & ARTHUR

R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1069.4).

      "The operative question in a jurisdictional analysis is whether [the]

subsidiary corporations are mere 'divisions' or 'branches' of a larger whole, such

that the subsidiaries' contacts with Texas should be attributed to [the parent]." El

Puerto De Liverpool, S.A. De CV v. Servi Mundo Llantero S.A. De CV, 82 S.W.3d

622, 634 (Tex. App.—Corpus Christi 2002, pet. dism'd w.o.j.)




Brief of Appellee LMS Consulting LLC                                      Page 36
      When seeking to establish jurisdiction through veil piercing, the plaintiff

bears the burden of proof. E.g., Cappuccitti v. Gulf Indus. Prods., Inc., 222

S.W.3d 468, 482 (Tex. 2007).

      All of the relevant facts and circumstances surrounding the operations of the

parent and subsidiary must be examined to determine whether two separate and

distinct corporate entities exist. Capital Tech. Info. Servs. Inc. v. Arias & Arias

Consultores, 240 S.W3d 741, 749 (Tex. App.—Dallas 2008, pet denied).

      In this case, the Texas entities were so "fused" that even Dr. Balk—who has

been with the company for 28 years—gets confused with respect to who is doing

what and what hat she is purportedly wearing. App. 1, Balk Dep. 19:25-20:22,

24:16-20, 30:9-15; CR 322 at ¶ 2.

      The record reflects extensive control by Appellants over the Texas

operations:

      (a) The same officers and directors control Appellants and PT San Antonio
          and PT Dallas, CR 191-92 at Interrogs. 5, 6; App.1, Balk Dep. 18:17-
          19, 24:16-20; CR. 52 ¶ 17; CR 172 at ¶ 2; see also CR 57;

      (b) Dr. Balk, Vice President of Operations for all of the Personal Touch
          Home Care Companies, oversees the Texas operations out of
          Appellants' corporate Bayside, New York office. Ms. De la Rosa, the
          Texas regional administrator who signed the contracts on behalf of
          "Personal Touch Home Care, Inc." reports to Dr. Balk, CR 322 at ¶ 2,
          App. 1, Balk Dep. 10:4-10, CR 50 at ¶¶ 6, 8;

      (c) PT Intermediate owns PT San Antonio and PT Dallas and Personal
          Touch Holding Corp owns PT Intermediate, see e.g. Appellants' Br.
          p. 7;


Brief of Appellee LMS Consulting LLC                                 Page 37
      (d) Appellants' Bayside, New York office is also the principal office for PT
          San Antonio and PT Dallas and the proper contact for the Texas
          operations of "Personal Touch Home Care, Inc.," CR 190-191 at
          Interrogs. 2, 3; CR 324 at ¶ 11; CR 60-65; App. 1, Balk Dep. 17:22-
          18:5.

      (e) The evidence suggests that Appellants control the contracting for the
          Texas operations, see App. 1, Balk Dep. 12:11-18, 22-13:4, 12-18;

      (f) Appellants control personnel decisions, including decisions to engage
          persons referred by LMS Consulting for employment in Texas; CR 52
          at ¶ 13; CR 248-56;

      (g) Appellants pay vendors for the Texas operations (including LMS
          Consulting) from Appellants' New York account, CR 52 at ¶¶ 16-17;
          CR 173 at ¶ 4; App. 1, Balk Dep. 24:2-9;

      (h) Appellants pay payroll for the Texas operations (including payroll
          Texas residents referred to Appellants for employment in Texas)
          through Appellants' New York account, App. 1, Balk Dep. 22:4-11,
          CR 324-25 at ¶ 14, CR 173 at ¶ 4.

      (i) Appellants provide employee benefits for the Texas operations through
          Appellants' New York account, including payment of Texas residents
          employed for Texas operations, CR 324 at ¶ 12; App. 1, Balk Dep.
          19:19-20:22, 30:9-13;

      (j) Appellants manage accounts receivable and provide billing services for
          the Texas operations, including billing for Personal Touch clients
          receiving services from LMS-referred staff, CR 173 at ¶ 4, App. 1,
          Balk. Dep. 21:10-25, 28:15-21; and

       (k) Appellants pay taxes as "Personal Touch Home Care, Inc." in Texas,
           CR 286.

      Appellants raise a factual challenge to Appellee's allegations of control with

respect to (1) the allegation that Appellants handle the personnel decisions; and



Brief of Appellee LMS Consulting LLC                                  Page 38
(2) the allegation that Appellants manage the contracts. However there is ample

evidence to support both such contentions. Testimony presented by Appellee and

the documentary evidence indeed reflects that Appellants were controlling the

recruitment and hiring or personnel for the Texas operations. CR

      Appellants would have the court believe that just as no one is doing business

as "Personal Touch Home Care, Inc.," no one has authority to contract on behalf of

the Texas corporations.       Dr. Balk specifically testified that Ms. De la Rosa, the

regional administrator for Texas who reports to Dr. Balk, did not have authority to

enter into the contracts with LMS and her testimony suggests the responsibility lies

with her. See App. 1, Balk Dep. 11:11-16, 12:22-13:18 ("Q: Was Ms. De la Rosa

authorized to execute agreements with LMS on behalf of the Personal Touch

Home Care Companies?" . . . Dr. Balk: "I mean, I was not aware of the

contracts.").   However, she also testified that Appellants do not perform this

function. Appellants offer no affirmative testimony on who decides matters of

contract for the Texas operations.

      Appellants also seem to take issue with the assertion that they provide

billing services. But this was testified to by Dr. Balk at deposition (though later

contradicted by affidavit).




Brief of Appellee LMS Consulting LLC                                    Page 39
      Appellants' main challenge on veil piercing is a legal sufficiency challenge;

they allege that even if the allegations of factual control asserted are true, it is not

sufficient to satisfy Appellee's burden to show atypical parental control.

      However, appellants consider these items in isolation and as a group of

factors to consider in determining "whether the subsidiary is separate and distinct

from its parent corporation." PHC-Minden, 235 S.W.3d at 176. No one item is

determinative. While it may be the case that Texas court have decline to pierce the

veil when one of these items obtains, but other do not, that does not mean that all

of these control items taken together would not satisfy the test.

      The Personal Touch Home Care Companies are not "separate and distinct

entities." Id. They do not act or represent themselves as separate and distinct

entities, and they did not do so with respect to their dealings with Appellee.

Instead, Appellants act as "Personal Touch Home Care, Inc.," a single organization

operating in 12 states. CR 60-65. They don't identify any separate or distinct

entities in their business dealings.

      All of the factors listed in PHC-Minden counsel in favor of piercing the

jurisdictional corporate veil: PT San Antonio and PT Dallas are wholly-owned

subsidiaries of PT Intermediate, which is a wholly-owned subsidiary of Personal

Touch Holding Corp.; Appellants share corporate offices and have the same

officers and directors; and Appellants were heavily involved not only in the



Brief of Appellee LMS Consulting LLC                                      Page 40
performance of the recruitment and staffing contracts at issue in this case, but also

in the policies and general affairs of the Texas subsidiaries.        Cf. PHC-Minden,

235 S.W.3d at 174, 176 (holding atypical requirement not satisfied when the parent

had no involvement with the subsidiary's recruitment efforts; companies had

separate headquarters and did not share directors; and subsidiary established its

own budget, policies and procedures).

      Considering collectively, the contacts of PT Dallas and PT San Antonio are

properly attributed to Appellants because they are not separate and distinct from

the parent organizations.

                                   CONCLUSION
      Appellants confuse the issues. “Personal Touch Home Care, Inc.” has no

veil to pierce. All three grounds of the Texas long-arm statute were properly pled

against Appellants with respect to their conduct directed Texas and performed

under the false name “Personal Touch Home Care, Inc.” Appellants failed to

satisfy their burden to negate all possible bases for jurisdiction. The trial court’s

denial of Appellants’ special appearances should therefore be affirmed.

                              PRAYER FOR RELIEF
      Appellee LMS Consulting LLC respectfully asks this Court to affirm the

trial court's orders denying Appellants PT Intermediate Holding Inc. and Personal

Touch Holding Inc.'s special appearances below in all respects, and that the Court

grant it such other and further relief to which it may be entitled.


Brief of Appellee LMS Consulting LLC                                     Page 41
                                   Respectfully submitted,

                                   TAYLOR DUNHAM AND RODRIGUEZ LLP
                                   301 Congress Avenue, Suite 1050
                                   Austin, TX 78701
                                   512-473-2257
                                   512-478-4409 (fax)




                                   By: /S/Isabelle M. Antongiorgi
                                       David E. Dunham
                                       State Bar No. 06227700
                                       ddunham@taylordunham.com
                                       Jennifer Tatum Lee
                                       State Bar No. 24046950
                                       jtatum@taylordunham.com
                                       Isabelle M. Antongiorgi
                                       State Bar No. 24059386
                                       ima@taylordunham.com
                                   Counsel for Appellee LMS Consulting LLC




Brief of Appellee LMS Consulting LLC                              Page 42
                          CERTIFICATE OF SERVICE
      On March 4, 2015, the undersigned certifies that she served a copy of this
Brief of Appellees on the following by e-service, in compliance with Texas Rules
of Appellate Procedure 9.5 and 25.1(e):

Monte James
mjames@jw.com
Kimberly Gdula
kgdula@jw.com
Josh Romero
jromero@jw.com
Jackson Walker LLP
100 Congress Avenue
Suite 1100
Austin, Texas 78701
Counsel for Appellants

                                       /S/Isabelle M. Antongiorgi
                                       Isabelle M. Antongiorgi


                       CERTIFICATE OF COMPLIANCE
      The undersigned certifies that this brief complies with the word limitation
contained in Texas Rule of Appellate Procedure 9.4(i)(2)(B) in that the brief
contains a total of 9,151 words, excluding parts of the brief exempted by Tex. R.
App. P. 9.4(i)(1).
                                      /S/Isabelle M. Antongiorgi
                                      Isabelle M. Antongiorgi




Brief of Appellee LMS Consulting LLC                                Page 43
                                       APPENDIX
Appendix 1          Deposition of Trudy Balk (CR 194-227; CR 146-149)

Appendix 2          Watkins v. Isa

Appendix 3          Ji-Haw v. Indus. Co. Ltd. v. Broquet




Brief of Appellee LMS Consulting LLC                              Page 44
APPENDIX 1
                                                       TAB TWO TO EXHIBIT A
      TRUDY BALK                       4/30/2014

                                                                            1

 1                         CAUSE NO. 2014CI00450
 2 LMS CONSULTING, LLC,          ) IN THE DISTRICT COURT
                 Plaintiff       )
 3                               )
                                 )
 4    VS.                        ) 45TH JUDICIAL DISTRICT
                                 )
 5    PT HOME SERVICES OF DALLAS,)
      INC. d/b/a Personal-Touch )
 6    Home Care, Inc., PT HOME   )
      SERVICES OF SAN ANTONIO,   )
 7    INC. d/b/a Personal-Touch )
      Home Care, Inc., and       )
 8    PERSONAL-TOUCH HOME CARE   )
      OF NY, INC. f/k/a          )
 9    PERSONAL-TOUCH HOME CARE, )
      INC.,                      )
10                  Defendants   ) BEXAR COUNTY, TEXAS
11 ********************************************************
12                            ORAL DEPOSITION OF
13                                 TRUDY BALK
14                                APRIL 30, 2014
15 ********************************************************
16                 ORAL DEPOSITION OF TRUDY BALK, produced as a
17 witness at the instance of the Plaintiff, and duly
18 sworn, was taken in the above-styled and numbered cause
19 on April 30, 2014, from 9:10 a.m. to 9:59 a.m., before
20 Christi Sanford, CSR in and for the State of Texas,
21 reported by machine shorthand, at the offices of Jackson
22 Walker, LLP, 100 Congress Avenue, Suite 1100, Austin,
23 Texas, pursuant to the Texas Rules of Civil Procedure
24 and the provisions stated on the record or attached
25 hereto.



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      TRUDY BALK                      4/30/2014

                                                                      2

1                                 APPEARANCES
2
      For the Plaintiff:
3
           Mr. Alejandro Mora
4          Law Offices of Alejandro Mora, PLLC
           7000 North Mopac Expressway, Suite 200
5          Austin, Texas 78731
           (512) 514-6683
6          (888) 320-0589 Fax
           alejandro@morahealthcarelaw.com
7
      For the Defendants:
8
           Mr. Monte F. James
9          Ms. Jenny L. Smith
           Jackson Walker, LLP
10         100 Congress Avenue, Suite 1100
           Austin, Texas 78701
11         (512) 236-2000
           (512) 236-2002 Fax
12         mjames@jw.com
           jlsmith@jw.com
13
14
15
16
17
18
19
20
21
22
23
24
25


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                                                                     3

 1                                   INDEX
                                                           PAGE
 2
      Appearances                                           2
 3
      WITNESS: TRUDY BALK
 4
       Examination by Mr. Mora                      4
 5     Examination by Mr. James                   28
 6 Signature and Changes                          30
   Reporter's Certificate                         32
 7
 8                         EXHIBITS
 9 NUMBER        DESCRIPTION                       PAGE
10 1   Plaintiff's Notice of Deposition of the
       Corporate Representative of Personal-Touch
11     Home Care of NY, Inc.                        4
   2   NPI Registry Provider Details,
12     Personal-Touch Home Care of NY, Inc.         6
   3   Affidavit of Trudy Balk, PhD                 7
13 4   Printout from Web site www.pthomecare.com,
       New York, Long Island and Westchester
14     Locations                                  14
   5   Printout from Web site www.pthomecare.com,
15     Texas Locations                            16
   6   Check Number 253128 to LMS Consulting, LLC
16     from Personal-Touch Home Aides, 4/5/13     22
   7   Check Number 633995 to LMS Recruiting and
17     Staffing from Personal Touch Holding Corp.,
       2/4/13                                      24
18 8   Personal-Touch Home Care of New York, Inc.
       Stock Certificate                           25
19 9   PT Home Services of Dallas Stock
       Certificate                                 26
20 10 PT Home Services of San Antonio Stock
       Certificate                                 26
21 11 Personal-Touch Home Care Employee Stock
       Ownership Plan, 2012 Form 5500 by
22     BrightScope                                26
23
24
25


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      TRUDY BALK                       4/30/2014

                                                                               4

 1                                TRUDY BALK,
 2      having been first duly sworn, testified as follows:
 3                                EXAMINATION
 4 BY MR. MORA:
 5         Q.      Ms. Balk, good morning.            My name is Alejandro
 6 Mora.        I'm the attorney for LMS Consulting, LLC.
 7                        Would you please introduce yourself one
 8 more time?
 9         A.      Yeah.   My name is Trudy Balk.
10         Q.      Okay.   I'm going to be handing you what I'm
11 going to be marking as Plaintiff's Exhibit Number 1.
12 It's the Plaintiff's Notice of Deposition to the
13 Corporate Representative of Personal-Touch Home Care
14 of NY, Inc.
15                        (Exhibit Number 1 was marked)
16         Q.      Have you seen this document before?
17         A.      Yes.
18         Q.      Do you understand that you're appearing here as
19 the corporate representative of Personal-Touch New York,
20 Inc., and you understand that your responses are not
21 only on behalf of yourself, but also the answers of
22 Personal-Touch Home Care of New York, Inc.?
23                        MR. JAMES:   Objection, form.
24         A.      Yeah.   Personal-Touch Home Care of NY, I think.
25         Q.      (BY MR. MORA)   NY, Inc.           Thank you.



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                                                                                 5

 1                        Can we agree that when I refer to
 2 Personal-Touch New York that we are referring to
 3 Personal-Touch Home Care of NY, Inc.?
 4         A.      Yes.
 5                        MR. JAMES:      Objection, form.       You said the
 6 wrong name.
 7                        MR. MORA:     Personal-Touch Home Care of NY,
 8 Inc.      My question was:         Can we -- can we agree that when
 9 I refer to Personal-Touch New York that we're referring
10 to Personal-Touch Home Care NY, Inc.?
11                        MR. JAMES:      Maybe I misheard, and I
12 apologize.
13         A.      Yes.    That is correct.          Yeah.
14         Q.      (BY MR. MORA)      Can you please explain what
15 you've done to -- aside from meeting with your attorney,
16 what you've done to prepare for this deposition?
17         A.      Just talked to my attorneys, really.
18         Q.      Okay.   Are there any documents that you've
19 reviewed?
20         A.      Just the ones -- my affidavit and the -- yeah,
21 some of the other documents that went back and forth.
22         Q.      Okay.   What is the address of the principal
23 place of business for Personal-Touch New York?
24         A.      Personal-Touch New York?              It's 18618 Hillside
25 Avenue --



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                                                                                 6

 1         Q.      Okay.
 2         A.      -- in Jamaica, New York.
 3         Q.      How long has that address been its principal
 4 place of business?
 5         A.      That's a good question.              I mean, over ten
 6 years.
 7         Q.      Okay.   And where was the previous place of
 8 business?
 9         A.      For Personal-Touch New York --
10         Q.      Yes, ma'am.
11         A.      -- that you're referring to?
12                        We had offices in Flushing, New York,
13 before we moved here.
14         Q.      Okay.   Does Personal-Touch New York maintain a
15 mailing address at 22215 Northern Boulevard, Third
16 Floor, Bayside, New York 11361?
17         A.      That is our corporate offices.
18         Q.      Your corporate offices?
19         A.      Correct.
20                        (Exhibit Number 2 was marked)
21         Q.      Okay.   I'm going to hand you what's been marked
22 as Exhibit 2.           And it's been pulled from the NPI
23 Registry Web site.             Are you familiar with the -- what an
24 NPI number is?
25         A.      Yes.



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                                                                           7

 1         Q.      Do you know if the NPI listed here for
 2 Personal-Touch Home Care of NY, Inc., is the correct NPI
 3 number?
 4         A.      I have no idea without looking at a list.
 5         Q.      Okay.   Do you know Lorigay Laskin?
 6         A.      Yes.
 7         Q.      And who is she?
 8         A.      She's our contract manager.        She works for me.
 9         Q.      Okay.
10         A.      And she handles the NPI numbers.
11         Q.      She's responsible for NPI?
12         A.      Uh-huh.
13         Q.      Okay.   And the mailing address there is correct
14 for Personal-Touch Home Care of NY, Inc.?
15         A.      On the second page there 18618, that's the
16 correct address for Personal-Touch New York.
17                        (Exhibit Number 3 was marked)
18         Q.      Okay.   I'm going to hand you what's been marked
19 as Exhibit 3.           And this is the affidavit of Trudy Balk.
20 Have you seen this document before?
21         A.      Yes.
22         Q.      Would you please turn to page 3 of the exhibit.
23         A.      Okay.
24         Q.      Would you confirm that that is your signature?
25         A.      Yes, it is.



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                                                                      8

 1         Q.      And you understand that when you signed the
 2 affidavit, you swore that the statements contained in
 3 the affidavit were within your personal knowledge and
 4 are true and correct?
 5         A.      Yes.
 6         Q.      Are all the statements within this affidavit
 7 within your personal knowledge?
 8         A.      Yes.
 9         Q.      Are all the statements true and correct?
10         A.      Yes.
11         Q.      Are you the vice president of operations for
12 the Personal-Touch Home Care companies?
13         A.      Yes, I am.
14         Q.      Okay.   What companies are encompassed within
15 the Personal-Touch Home Care companies?
16         A.      Okay.   I'll try to list them, but don't hold me
17 to it.
18         Q.      Okay.
19         A.      Personal-Touch Home Care of NY, Inc.,
20 Personal-Touch Home Aides of New York, Inc.,
21 Personal-Touch Home Care of Westchester, Inc.,
22 Personal-Touch Home Care of Long Island, Inc., PTS of
23 Westchester, Inc., Personal-Touch Home Care of PA, Inc.,
24 Personal-Touch Home Care of VA, Inc., Personal-Touch
25 Home Care of Baltimore, Inc., Personal-Touch Home Care



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                                                                            9

 1 of Ohio, Inc., Personal-Touch Home Care of Kentucky,
 2 Inc., Personal-Touch Home Care of Indiana, Inc.,
 3 Personal-Touch Home Care of Greater Portsmouth, Inc.,
 4 Personal-Touch Home Care of MA, Massachusetts,
 5 Personal-Touch Home Care of SE Mass, Southeast Mass,
 6 Inc.
 7         Q.      Okay.
 8         A.      And Texas.     I forgot Texas.      How could I do
 9 that?        PT Home Services of San Antonio, Inc., and PT
10 Home Services of Dallas, Inc.
11         Q.      Okay.   Are you the vice president of operations
12 for PT Home Services of Dallas, Inc.?
13         A.      Yes.
14         Q.      And are you the vice president of operations
15 for PT Home Services of San Antonio, Inc.?
16         A.      Yes.
17         Q.      Okay.   From which of those entities do you
18 receive compensation as an employee?
19         A.      I don't receive compensation from either one of
20 them.
21         Q.      I'm sorry.     From any of the Personal-Touch Home
22 Care companies that you referred to.
23         A.      I receive my compensation from a parent
24 company.
25         Q.      Okay.   And who is the parent company?



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 1         A.      PT Intermediate Holding.
 2         Q.      Okay.   And what services do you provide in
 3 return for that compensation?
 4         A.      I supervise most of the offices directly.       Some
 5 of them report directly to someone else.          But,
 6 basically, I oversee the operations in terms of
 7 regulatory changes, clinical -- I don't do this all
 8 myself, but obviously have people that do it with me --
 9 you know, clinical changes, financial changes that have
10 to be made, personnel for sure.
11         Q.      Okay.   What is the address of the principal
12 place of business for PT Intermediate Holding?
13         A.      22215 Northern Boulevard, Bayside, New York.
14         Q.      Are you familiar with LMS Consulting, LLC?
15         A.      Yes.
16         Q.      Okay.   Did any of the companies within the
17 Personal-Touch Home Care companies enter into any
18 staffing agreements with LMS Consulting, LLC?
19         A.      Just the top -- the Texas offices.
20         Q.      Could you be more specific?
21         A.      Okay.   PT Home Services of Dallas, PT Home
22 Services of San Antonio, and I believe a couple of the
23 branches of San Antonio, Weslaco and El Paso.
24         Q.      Okay.   Did any company within the
25 Personal-Touch Home Care companies enter into any



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 1 recruitment agreement with LMS Consulting, LLC?
 2         A.      Yes.    The same -- same entities.
 3         Q.      Okay.    As the vice president of operations for
 4 the Personal-Touch Home Care companies, did you approve
 5 these agreements with LMS before Personal-Touch
 6 companies entered into them?
 7         A.      No, I didn't.
 8         Q.      Did you read the agreements before they were
 9 executed?
10         A.      No, I didn't.
11         Q.      Do you know Ms. Elizabeth DeLaRosa?
12         A.      Yes.
13         Q.      What is -- who is she and what is her role
14 within the Personal-Touch Home Care companies?
15         A.      She's a regional administrator for the Texas
16 offices.
17         Q.      Was she authorized to execute agreements with
18 LMS Consulting, LLC?
19                        MR. JAMES:   Objection, form.
20         Q.      (BY MR. MORA)    What was her -- what was her
21 role in entering into agreements with LMS Consulting,
22 LLC?
23                        MR. JAMES:   Objection, form.    You know,
24 I'm having trouble -- you're not -- you're not
25 misstating anything, but I'm having trouble keeping up.



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 1 You go so fast.         I'm trying to keep up with it in my
 2 mind.        If you could slow down just a tad.
 3                      MR. MORA:     Sure.
 4                      MR. JAMES:      I don't mean to tell you how
 5 to do it at all.          I'm not trying to do that.          But I'm
 6 having trouble following -- you're using acronyms and
 7 I'm having trouble keeping up with it, to make sure that
 8 I get objections in.
 9                      MR. MORA:     Sure.        We can slow it down.
10 What I'll do is I'll refer to every entity fully.
11                      MR. JAMES:      Well, you don't have to do
12 that.        That's not -- I'm not trying to make it
13 difficult.        I literally am just having trouble keeping
14 up with you.
15                      MR. MORA:     Okay.
16                      MR. JAMES:      And I'm trying to listen and
17 type.        I probably should quit typing and just listen.
18                      MR. MORA:     Okay.
19                      MR. JAMES:      Do you mind repeating that
20 one?
21                      MR. MORA:     That's not a problem.
22         Q.      (BY MR. MORA)    Was Ms. DeLaRosa authorized to
23 execute agreements with LMS on behalf of the
24 Personal-Touch Home Care companies?
25                      MR. JAMES:      Objection, form.



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 1         A.      I mean, I was not aware of the contracts.
 2         Q.      (BY MR. MORA)   Okay.      What is Ms. DeLaRosa's
 3 authority in entering into agreements on behalf of
 4 Personal-Touch?
 5                       MR. JAMES:    Objection, form.
 6         A.      Say it again.
 7                       MR. JAMES:    And I -- you know, and I won't
 8 keep making speaking deals.             I don't -- I don't do that.
 9 But when you say Personal-Touch, that's why my
10 objection's out there.          What company are you talking
11 about?
12         Q.      (BY MR. MORA)   What is Ms. DeLaRosa's -- was
13 she authorized to execute agreements on behalf of
14 Personal-Touch of San Antonio, Inc.?
15         A.      She has a lot of autonomy, but she was -- she
16 is not authorized to sign legal agreements on --
17         Q.      Okay.
18         A.      -- behalf of the company.
19         Q.      Do the Texas Personal-Touch entities that are
20 under your operational control go by the name of
21 Personal-Touch Home Care, Inc.?
22         A.      No.
23         Q.      Okay.   Does Personal-Touch New York go by the
24 name of Personal-Touch Home Care, Inc.?
25         A.      It did until a certain point, at which it was



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 1 changed to Personal-Touch Home Care of NY, Inc.
 2         Q.      Okay.    When did it change its name?
 3         A.      Oh, boy.   I think the beginning of the '90s.
 4         Q.      Okay.
 5         A.      Like 1992, something like that.
 6         Q.      Were you the operations officer at that time?
 7         A.      Yes.
 8         Q.      Okay.    And do you know why it changed its name
 9 at that time?
10         A.      I don't.
11         Q.      Okay.    Are you familiar with the Web site
12 address www.pthomecare.com?
13         A.      Yes.
14         Q.      And what Personal-Touch companies under your
15 operational control uses that Web site address?
16                        MR. JAMES:   Objection, form.
17         A.      I'm not sure what you mean.
18         Q.      (BY MR. MORA)   Which Personal-Touch Home Care
19 companies use this Web site?
20         A.      All of the Personal-Touch Home Care offices.
21                        (Exhibit Number 4 was marked)
22         Q.      Okay.    I'm going to hand you what's been marked
23 as Exhibit 4.           And this is a printout from the Web site
24 www.pthomecare.com.
25         A.      Right.



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 1         Q.      Do you recognize this Web page as belonging --
 2         A.      Yes.
 3         Q.      -- as a Web site belonging to the
 4 Personal-Touch Home Care companies?
 5         A.      Yes.
 6         Q.      Does this Exhibit 4 accurately reflect the
 7 locations of the Personal-Touch Home Care companies in
 8 New York?
 9                        MR. JAMES:    Objection, form.
10         A.      The addresses?
11         Q.      (BY MR. MORA)    Yes, ma'am.        The locations.
12         A.      The locations?
13                        MR. JAMES:    Objection, form.
14         Q.      (BY MR. MORA)    Does this represent the correct
15 address of the New York locations for Personal-Touch
16 Home Care companies?
17                        MR. JAMES:    Objection, form.
18         A.      Yes.    These are the addresses.
19         Q.      (BY MR. MORA)    Okay.      Do the Personal-Touch
20 companies do business in New York as Personal-Touch Home
21 Care, Inc.?
22         A.      No.
23         Q.      If not, is there a mistake on this Web page?
24         A.      Absolutely.
25         Q.      Okay.   And as the operations officer, would



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 1 you be in charge of seeing that such a mistake was
 2 remedied?
 3         A.      Yes.
 4         Q.      Okay.   And that has not been done?
 5         A.      Yes, it has been.
 6         Q.      It has been corrected?
 7         A.      Yes.
 8         Q.      When was that corrected?
 9         A.      When we realized this a couple weeks ago, I
10 suppose.
11         Q.      Okay.
12         A.      A month ago.
13         Q.      So until then, the Web site for the
14 Personal-Touch Home Care company is listed as doing
15 business in New York as Personal-Touch Home Care, Inc.,
16 correct?
17         A.      Correct.
18                        (Exhibit Number 5 was marked)
19         Q.      I'm going to hand you what's been marked as
20 Exhibit 5.        This is a printout from the Web page -- from
21 the Web site www.pthomecare.com.                   Do you recognize this
22 Web page as being from the Web site belonging to the
23 Personal-Touch Home Care companies?
24                        MR. JAMES:   Objection, form.
25         A.      I'm not sure.   I'd have to see.          I don't



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 1 remember exactly.
 2         Q.      (BY MR. MORA)      Okay.      Does this -- does this
 3 Exhibit 5 accurately reflect the addresses of the
 4 Texas locations for the Personal-Touch Home Care
 5 companies?
 6                        MR. JAMES:      Objection, form.
 7                        MR. MORA:     Would you please clarify your
 8 objection?
 9                        MR. JAMES:      When you say Personal-Touch
10 Home Care companies, that's ambiguous.
11                        MR. MORA:     Okay.        I'll restate it.
12                        MR. JAMES:      I'm looking for specific
13 entities.
14                        MR. MORA:     Okay.
15         Q.      (BY MR. MORA)      Does this Exhibit 5 accurately
16 reflect the locations of the -- business locations for
17 Personal-Touch of Dallas, Inc., and Personal-Touch of
18 San Antonio, Inc.?
19                        MR. JAMES:      Objection, form.
20         A.      Yes.   That is the address of the San Antonio
21 office and that is the address of the Dallas office.
22         Q.      (BY MR. MORA)      This page also lists the Texas
23 location contact address as 222-15 in Bayside, New York.
24 That's on the second page of Exhibit 5.                   Is that the
25 correct contact address?



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 1         A.      Yes.    That's the corporate office.
 2         Q.      And this Web page shows that the name of each
 3 of the Texas locations is Personal-Touch Home Care,
 4 Inc., correct?
 5         A.      Yes.    As we said, it was a mistake.
 6         Q.      Okay.   And that has been corrected as well?
 7         A.      Yes, it has been.
 8         Q.      Okay.   I'd like to turn to PT Intermediate
 9 Holding.
10         A.      Okay.
11         Q.      What is the primary business of PT Intermediate
12 Holding?
13         A.      It is the parent company to all the others.
14         Q.      Okay.   How long has it been the parent company?
15         A.      Since 2010 or 2011.       I'm not -- when we formed
16 in east side, when the company formed in East Side.
17         Q.      Who are the directors of PT Intermediate
18 Holding?
19         A.      Robert Marx and Dr. Glaubach.
20         Q.      Are you, Trudy Balk, an officer or director of
21 PT Intermediate Holding, Inc.?
22         A.      An officer.
23         Q.      And who are the owners of PT Intermediate
24 Holding, Inc.?
25         A.      It's owned by Personal-Touch Holding Company,



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 1 which is all the companies.
 2         Q.      Are you the vice president of operations for
 3 PT Intermediate Holding, Inc.?
 4                         MR. JAMES:   Objection, form.
 5         A.      I'm confused by that question.             Explain what
 6 you mean.
 7         Q.      (BY MR. MORA)     Are you the vice president of
 8 operations for the PT Intermediate Holding, Inc.,
 9 entity?
10                         MR. JAMES:   I'm sorry.         Objection, form.
11         A.      I'm a vice president of operations for the
12 entities.
13         Q.      (BY MR. MORA)     Okay.          Who are the officers of
14 Personal-Touch Home Care of NY, Inc.?
15         A.      Dr. Glaubach and Mr. Marx.
16         Q.      Okay.    And who are the directors for
17 Personal-Touch Home Care NY, Inc.?
18         A.      The same two people.
19         Q.      Okay.    Does Personal-Touch of Dallas, Inc.,
20 provide any employee benefits, health insurance,
21 et cetera, to its employees?
22         A.      Do we -- yes.     As a company, we provide health
23 benefits to all our employees.
24         Q.      Okay.    And who provides -- who provides those
25 benefits?        Is it Personal-Touch of Dallas, Inc.?



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 1         A.      What do you mean, provides?
 2         Q.      Who is -- which entity is responsible for
 3 paying those -- paying those benefits?
 4                      MR. JAMES:     Objection, form.
 5         A.      Obviously, the insurance is handled by the
 6 corporate office, which insurance, the rates,
 7 negotiating the contracts and so forth and so on, but it
 8 is paid for by each of the entities.
 9         Q.      (BY MR. MORA)   Okay.      And would you please
10 clarify when you refer to the corporate office?
11         A.      I'm talking about the parent office, parent
12 company.
13         Q.      But the entity, please?
14         A.      PT Intermediate Holding.
15         Q.      Okay.   Thank you.
16                      How about retirement accounts for
17 Personal-Touch of Dallas, Inc., and Personal-Touch of
18 San Antonio, Inc., are those provided by PT Intermediate
19 Holding?
20         A.      We don't have any.
21         Q.      Any retirement benefits for employees?
22         A.      No, we don't.
23         Q.      Okay.   Who handles the marketing for all the
24 Personal-Touch Home Care companies?
25                      MR. JAMES:     Objection, form.



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 1         Q.      (BY MR. MORA)    Is PT Intermediate Holding
 2 responsible for marketing?
 3         A.      No.   Each of the entities is responsible for
 4 marketing.
 5         Q.      Okay.
 6         A.      Let me clarify that.           Obviously, there can be
 7 input from the parent company, but each of them is
 8 responsible for how they want to market and what they
 9 market.
10         Q.      Okay.    As far as billing for the Texas
11 entities, both Personal-Touch of Dallas, Inc., and
12 Personal-Touch of San Antonio, Inc., who is responsible
13 for billing for those entities?
14         A.      Billing meaning what?          Billing for what?
15         Q.      Billing for the services provided by those
16 entities.
17         A.      Who is responsible for?
18         Q.      For the billing and the services that are
19 provided by each of those entities.
20         A.      Are you talking about payroll?
21         Q.      No.   I was going to ask about payroll as well,
22 but actually billing for the services that those
23 entities provide, the home health services, the --
24         A.      Right.   They bill it.         The individual offices
25 bill it with oversight from the parent.



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 1         Q.      Okay.   And is each individual office also
 2 responsible for that office's payroll obligations?
 3         A.      They input all the payroll, yes.
 4         Q.      Okay.   And are those checks then paid by those
 5 entities as well?
 6         A.      They're paid by the holding company, but, you
 7 know, obviously -- I'm forgetting the word, but
 8 attributed to each of the companies.
 9         Q.      Okay.
10         A.      It comes from one pot, but then it's, you
11 know --
12                        MR. JAMES:   Objection, nonresponsive.
13         Q.      (BY MR. MORA)   Have you heard of Personal-Touch
14 Home Aides?
15         A.      Yes.
16         Q.      Can you identify this company for us, its
17 correct legal name?
18         A.      There is -- Personal-Touch Home Aides of
19 New York is our Brooklyn location.
20                        (Exhibit Number 6 was marked)
21         Q.      Okay.   I'm handing you what's been marked as
22 Exhibit 6.        This appears to be a check from
23 Personal-Touch Home Aides to LMS Consulting, LLC.                Have
24 you seen this document?
25         A.      Yes.



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 1         Q.      And do you know where this document came from?
 2         A.      From payroll, I suppose.            Accounts payable.
 3         Q.      Okay.   Does Personal-Touch Home Aides do
 4 business under a different name?
 5         A.      Does who?
 6         Q.      I'm sorry.     Does Personal-Touch Home Aides do
 7 business under a different name?
 8         A.      No.
 9         Q.      Does Personal-Touch Home Aides have a contract
10 with LMS Consulting, LLC?
11         A.      No.
12         Q.      Does Personal-Touch Home Aides share an address
13 with Personal-Touch of NY, Inc.?
14         A.      No.
15         Q.      And do you perform any services for
16 Personal-Touch Home Aides?
17         A.      Do what?
18         Q.      Do you perform any services for Personal-Touch
19 Home Aides?
20         A.      Meaning you or who?
21         Q.      I'm sorry.     You, as Trudy Balk, do you perform
22 any services for them?
23         A.      For who?
24         Q.      For Personal-Touch Home Aides, for this entity.
25         A.      No.



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 1                        (Exhibit Number 7 was marked)
 2         Q.      I'm handing you what's been marked as Exhibit
 3 Number 7, which appears to be a check from
 4 Personal-Touch Holding Corp. to LMS Consulting, LLC.
 5 Have you ever seen this document before?
 6         A.      Yes.
 7         Q.      And do you -- do you know where this document
 8 came from?
 9         A.      From AP.   It's a payment, yeah.
10         Q.      Okay.   And does Personal-Touch Holding Corp. do
11 business under a different name?
12         A.      No.
13         Q.      Okay.   And does Personal-Touch Holding Corp.
14 have a contract with LMS Consulting, LLC?
15         A.      No.
16         Q.      Okay.   Do you provide any services for
17 Personal-Touch Holding Corp.?
18         A.      Do I personally?
19         Q.      Yes, ma'am.
20         A.      It's a holding corp.        I work for the parent.
21         Q.      Okay.   Has Personal-Touch of NY, Inc., ever
22 been a plaintiff or defendant in a lawsuit?
23                        MR. JAMES:   Which entity?
24         A.      Which entity?
25         Q.      (BY MR. MORA)   Personal-Touch of NY, Inc.



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 1         A.      Personal-Touch Home Care of --
 2         Q.      Of NY, Inc.
 3         A.      Not to my recollection.
 4                      (Exhibit Number 8 was marked)
 5         Q.      Okay.   I'm handing you what's been marked as
 6 Exhibit Number 8.          It appears to be a stock certificate
 7 of Personal-Touch Home Care of New York, Inc.                Have you
 8 ever seen this document before?
 9         A.      Yeah.   Yes.
10         Q.      Who owns the remainder of the authorized
11 shares?
12                      MR. JAMES:     Objection, form.
13         Q.      (BY MR. MORA)   The stock certificate says that
14 PT Intermediate Holding, Inc., is the owner of 40 shares
15 of Personal-Touch Home Care New York, Inc.              What entity
16 holds -- is there any entity that holds any other shares
17 in Personal-Touch Home Care of New York, Inc.?
18         A.      I actually do not know.
19         Q.      Okay.   Can you identify the -- on the bottom
20 left of the exhibit, there's a signature of the
21 secretary.        Can you please identify the signature there?
22         A.      Robert Marx.
23         Q.      And on the bottom right-hand side, it says that
24 it's the signature of the president.               Can you identify
25 the signature there?



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 1         A.      Dr. Felix Glaubach.
 2                        (Exhibit Number 9 was marked)
 3         Q.      I'm handing you what's been marked as Exhibit
 4 Number 9, which appears to be a stock certificate of PT
 5 Home Services of Dallas, Inc.              Can you identify the
 6 signature on the bottom left-hand corner for the
 7 secretary?
 8         A.      Robert Marx.
 9         Q.      Okay.   And would you please identify the
10 signature on the bottom right as the president?
11         A.      Dr. Felix Glaubach.
12                        (Exhibit Number 10 was marked)
13         Q.      Okay.   I'm handing you what's been marked as
14 Exhibit Number 10, which appears to be a stock
15 certificate of PT Home Services of San Antonio, Inc.                 Do
16 you recognize this document?
17         A.      Yes.
18         Q.      Would you please identify the signature of the
19 secretary on the bottom left hand of the exhibit?
20         A.      Robert Marx.
21         Q.      And would you please identify the signature on
22 the bottom right?
23         A.      Dr. Felix Glaubach.
24                        (Exhibit Number 11 was marked)
25         Q.      I'm handing you what's been marked as Exhibit



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 1 Number 11.        With regards to Personal-Touch Holding
 2 Corp., does Personal-Touch Holding Corp. administer an
 3 employee stock ownership plan for the Personal-Touch
 4 companies?
 5                        MR. JAMES:      Objection, form.
 6         A.      That's legal stuff.          I'm not sure who
 7 administers it.
 8         Q.      (BY MR. MORA)      Okay.      Do you know who Anthony
 9 Castiglione is?
10         A.      Yes.
11         Q.      Okay.   And who is he?
12         A.      He's a controller in the corporate office in
13 the parent company.
14         Q.      Okay.   And are you familiar with Personal-Touch
15 Home Care IPA, Inc.?
16         A.      Yes.
17         Q.      And who are they?
18         A.      That is a new entity that is in formation,
19 basically, for business that is managed care business
20 that's being organized in New York state.
21                        MR. MORA:     Okay.        I have no further
22 questions.
23                        MR. JAMES:      Okay.      Let's take a quick
24 break.       Is that okay?
25                        MR. MORA:     Sure.



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 1                        (Recess from 9:43 to 9:58)
 2                                EXAMINATION
 3 BY MR. JAMES:
 4         Q.      Dr. Balk, earlier he asked you a question about
 5 who bills for the services provided by the Dallas and
 6 the San Antonio entities.             Do you remember that
 7 question?
 8         A.      Yes, I do.
 9         Q.      Okay.   And if I remember correctly -- I was
10 trying to write while everyone was talking, but I think
11 you said the holding company did so.                Which holding
12 company were you referring to when you said that a
13 holding company provided billing services for those
14 entities?
15         A.      PT Intermediate Holding, Inc.
16         Q.      Okay.   All right.      Now, does PT Intermediate
17 Holding, Inc., in fact, provide billing services for the
18 Dallas and San Antonio entities?
19         A.      Yes.    The billing is done by the entity itself
20 and then it comes to corporate where the files are
21 disbursed to the right --
22         Q.      Who does the actual billing for the Dallas
23 entity, for example?
24         A.      In the office.     It is done locally.
25         Q.      By the Dallas entity?



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 1         A.      By the Dallas entity.
 2         Q.      And who does the billing for the San Antonio
 3 entity?
 4         A.      Also by the San Antonio entity.
 5         Q.      Okay.   He asked you if you, Dr. Balk, provided
 6 any services for Personal-Touch Holding Corp., and I
 7 think that you said that you did not.                 Do you provide
 8 any services for Personal-Touch Holding Corp.?
 9         A.      I'm the vice president of operations.
10                      MR. JAMES:      Okay.      All right.   I'll pass.
11                      MR. MORA:      No further questions.
12                      MR. JAMES:      Okay.      Thank you very much.
13                      MR. MORA:      Thank you for your time.
14                      THE REPORTER:        How would you like to
15 handle signature?
16                      MR. JAMES:      Send it to me, please.
17                      (Proceedings concluded at 9:59 a.m.)
18
19
20
21
22
23
24
25



      JANIS ROGERS & ASSOCIATES       214.631.2655          DALLAS, TEXAS 75235
                                    depos@jracsr.com
222
      TRUDY BALK                     4/30/2014

                                                                      30

 1                        CHANGES AND SIGNATURE
 2 WITNESS NAME: TRUDY BALK           DATE: APRIL 30, 2014
 3 PAGE      LINE    CHANGE                  REASON
 4 ________________________________________________________
 5 ________________________________________________________
 6 ________________________________________________________
 7 ________________________________________________________
 8 ________________________________________________________
 9 ________________________________________________________
10 ________________________________________________________
11 ________________________________________________________
12 ________________________________________________________
13 ________________________________________________________
14 ________________________________________________________
15 ________________________________________________________
16 ________________________________________________________
17 ________________________________________________________
18 ________________________________________________________
19 ________________________________________________________
20 ________________________________________________________
21 ________________________________________________________
22 ________________________________________________________
23 ________________________________________________________
24 ________________________________________________________
25 Signature: _________________________ Date: _____________



      JANIS ROGERS & ASSOCIATES     214.631.2655       DALLAS, TEXAS 75235
                                  depos@jracsr.com
223
      TRUDY BALK                     4/30/2014

                                                                     31

 1         I, TRUDY BALK, have read the foregoing deposition
 2 and hereby affix my signature that same is true and
 3 correct, except as noted above.
 4
 5                           _______________________________
                             TRUDY BALK
 6
 7 THE STATE OF ______________)
 8 COUNTY OF          ______________)
 9
10         Before me ___________________ on this day personally
11 appeared TRUDY BALK, known to me (or proved to me under
12 the oath or through ___________________) (description of
13 identity card or other document) to be the person whose
14 name is subscribed to the foregoing instrument and
15 acknowledged to me that they executed the same for the
16 purposes and consideration therein expressed.
17         Given under my hand and seal of office this ______
18 day of _____________________, ________.
19
20                           _______________________________
                             NOTARY PUBLIC IN AND FOR
21
                             THE STATE OF __________________
22
                             COMMISSION EXPIRES: ___________
23
24
25



      JANIS ROGERS & ASSOCIATES     214.631.2655      DALLAS, TEXAS 75235
                                  depos@jracsr.com
224
      TRUDY BALK                       4/30/2014

                                                                      32

 1                         CAUSE NO. 2014CI00450
 2 LMS CONSULTING, LLC,          ) IN THE DISTRICT COURT
                 Plaintiff       )
 3                               )
                                 )
 4    VS.                        ) 45TH JUDICIAL DISTRICT
                                 )
 5    PT HOME SERVICES OF DALLAS,)
      INC. d/b/a Personal-Touch )
 6    Home Care, Inc., PT HOME   )
      SERVICES OF SAN ANTONIO,   )
 7    INC. d/b/a Personal-Touch )
      Home Care, Inc., and       )
 8    PERSONAL-TOUCH HOME CARE   )
      OF NY, INC. f/k/a          )
 9    PERSONAL-TOUCH HOME CARE, )
      INC.,                      )
10                  Defendants   ) BEXAR COUNTY, TEXAS
11 ********************************************************
12                        REPORTER'S CERTIFICATION
13                        DEPOSITION OF TRUDY BALK
14                                APRIL 30, 2014
15 ********************************************************
16         I, Christi Sanford, CSR, RPR, CRR, Certified
17 Shorthand Reporter in and for the state of Texas, hereby
18 certify to the following:
19         That the witness, TRUDY BALK, was duly sworn by the
20 officer and that the transcript of the oral deposition
21 is a true record of the testimony given by the witness;
22         That the deposition transcript/errata sheet was
23 submitted on ______________________ to the witness or to
24 the attorney for the witness for examination, signature
25 and return to the officer by ________________________;



      JANIS ROGERS & ASSOCIATES       214.631.2655     DALLAS, TEXAS 75235
                                    depos@jracsr.com
225
      TRUDY BALK                     4/30/2014

                                                                     33

 1         That the amount of time used by each party at the
 2 deposition is as follows:
 3         Mr. Alejandro Mora:      33 minutes
           Mr. Monte F. James:      1 minute
 4
 5         That pursuant to information given to the deposition
 6 officer at the time said testimony was taken, the
 7 following includes all parties of record:
 8         Mr. Alejandro Mora, Attorney for Plaintiff
           Mr. Monte F. James, Attorney for Defendants
 9
10         I further certify that I am neither counsel for,
11 related to, nor employed by any of the parties in the
12 action in which this proceeding was taken, and further
13 that I am not financially or otherwise interested in the
14 outcome of the action.
15         Further certification requirements pursuant to
16 Rule 203 of TRCP will be certified to after they have
17 occurred.
18         Certified to by me this 12th day of May, 2014.
19
20                           ____________________________________
                             Christi Sanford, CSR, CRR, RPR
21                           Texas Certification No. 6720
                             Certification Expires 12/31/15
22
                             Firm Registration No. 105
23                           JANIS ROGERS & ASSOCIATES
                             1545 W. Mockingbird Lane, Suite 1032
24                           Dallas, Texas 75235
                             (214) 631-2655
25



      JANIS ROGERS & ASSOCIATES     214.631.2655      DALLAS, TEXAS 75235
                                  depos@jracsr.com
226
      TRUDY BALK                       4/30/2014

                                                                      34

 1             FURTHER CERTIFICATION UNDER RULE 203 TRCP
 2                        DEPOSITION OF TRUDY BALK
 3                                APRIL 30, 2014
 4         The original deposition was/was not returned to the
 5 deposition officer signed/unsigned on ________________;
 6         If returned, the attached Changes and Signature page
 7 contains any changes and the reasons therefor;
 8         If returned, the original deposition was delivered
 9 to Mr. Alejandro Mora, Custodial Attorney;
10         That $_______ is the deposition officer's charges to
11 Plaintiff(s) for preparing the original deposition
12 transcript and any copies of exhibits;
13         That the deposition was delivered in accordance with
14 Rule 203.3, and that a copy of this certificate was
15 served on all parties shown herein on ____________, and
16 filed with the Clerk.
17         Certified to by me this ______ day of ____________,
18 2014.
19
20                           ____________________________________
                             Christi Sanford, CSR, CRR, RPR
21                           Texas Certification No. 6720
                             Certification Expires: 12/31/15
22
                             Firm Registration No. 105
23                           JANIS ROGERS & ASSOCIATES
                             1545 W. Mockingbird Lane, Suite 1032
24                           Dallas, Texas 75235
                             (214) 631-2655
25



      JANIS ROGERS & ASSOCIATES       214.631.2655     DALLAS, TEXAS 75235
                                    depos@jracsr.com
227
146
147
148
149
APPENDIX 2
Watkins v. Isa, Not Reported in S.W.3d (2012)
2012 WL 2021929



                                                              The automobile accident giving rise to the underlying
                2012 WL 2021929                               lawsuit occurred on August 5, 2009. Lynda Watkins
  Only the Westlaw citation is currently available.           timely filed her lawsuit against Isa alleging she was
                                                              negligent in the operation of her motor vehicle causing
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                      Watkins’s injuries. Isa moved for dismissal of the suit
         AND SIGNING OF OPINIONS.                             against her asserting that at the time of the accident she
                                                              was driving in the course and scope of her employment as
            MEMORANDUM OPINION                                a medical resident for the Texas Tech University Health
             Court of Appeals of Texas,                       Sciences Center, a governmental unit. SeeTEX. CIV.
                   San Antonio.                               PRAC. & REM.CODE ANN. § 101.106(f) (West 2011).
                                                              Isa filed two affidavits in support of her motion to
            Lynda J. WATKINS, Appellant                       dismiss—the affidavit of Gena Jones1 and the affidavit of
                        v.                                    Dr. Terry McMahon.2 Watkins objected to both affidavits
           Ohunene Ameena ISA, Appellee.                      as conclusory. Watkins did not amend her pleading to sue
                                                              only Texas Tech University Health Sciences Center, but
       No. 04–11–00622–CV. | June 6, 2012.                    continued her suit against Isa only. The trial court
                                                              conducted a hearing on Isa’s motion to dismiss. The court
                                                              denied Watkins’s objections to the affidavits filed in
From the 407th Judicial District Court, Bexar County,
                                                              support of Isa’s motion and granted Isa’s motion to
Texas, Trial Court No. 2010–CI–11208, Olin B. Strauss,
                                                              dismiss her from the suit. This appeal followed. On
Judge Presiding.
                                                              appeal, Watkins contends that the trial court erred in (1)
Attorneys and Law Firms                                       denying Watkins’s objections to the affidavit testimony
                                                              filed in support of Isa’s motion because the affidavits are
Oscar L. Cantu Jr., Law Offices of Oscar Cantu, San           conclusory, self-serving, and fail to give any foundation
Antonio, TX, for Appellant.                                   to support the conclusions of fact and law made therein,
                                                              and (2) granting Isa’s motion to dismiss because Isa was
Dan Vana, Cathrin J. Martinez, Benjamin, Vana, Martinez       not sued within the general scope of her employment with
& Biggs, L.L.P, San Antonio, TX, for Appellee.                a governmental entity.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN
MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

                                                                       APPLICABLE LAW AND BURDEN

                                                              Section 101.106 of the Tort Claims Act, entitled “Election
                                                              of Remedies,” contains six subsections, (a) through (f),
             MEMORANDUM OPINION                               dealing with grants of immunity and procedural
                                                              requirements for suits seeking to recover from a
                                                              governmental unit, its employee, or both. TEX. CIV.
Opinion by PHYLIS J. SPEEDLIN, Justice.                       PRAC. & REM.CODE ANN. § 101.106(a)-(f) (West
                                                              2011).Subsection (f) of section 101.106 applies when an
*1 The sole issue in this appeal is whether the trial court   individual employee of a governmental entity is sued in
erred in granting Dr. Ohunene Isa’s motion to dismiss         his official capacity and seeks dismissal based on official
under the election of remedies provision of the Texas Tort    immunity. Id. at § 101.106(f). Subsection (f) provides,
Claims Act. Because we hold Isa did not prove she was
acting within the scope of her employment at the time of
                                                                          If a suit is filed against an
the automobile accident at issue, we reverse the trial
                                                                          employee of a governmental unit
court’s judgment.
                                                                          based on conduct within the
                                                                          general scope of that employee’s
                                                                          employment and if it could have
                                                                          been brought under this chapter
                    BACKGROUND                                            against the governmental unit, the
                                                                          suit is considered to be against the
                                                                          employee in the employee’s official
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Watkins v. Isa, Not Reported in S.W.3d (2012)
2012 WL 2021929

            capacity only. On the employee’s                   (Tex.2004). We review matters of statutory construction
            motion, the suit against the                       de novo. City of Rockwall v. Hughes, 246 S.W.3d 621,
            employee shall be dismissed unless                 625 (Tex.2008).
            the    plaintiff  files   amended
            pleadings dismissing the employee
            and naming the governmental unit
            as defendant on or before the 30th
            day after the date the motion is                                         DISCUSSION
            filed.
                                                               Dr. Terry McMahon, Chairman of the Department of
                                                               Psychiatry for Texas Tech University Health Sciences
*2 Id. Based on the plain language of the statute, it is the
                                                               Center, testified by affidavit that Isa was acting in the
governmental employee’s burden to seek dismissal under
                                                               course and scope of her employment at the time of the
section 101.106(f).Id. Thus, as the moving party, it is the
                                                               automobile accident. His affidavit reads in relevant part as
employee’s burden to present evidence establishing (1)
                                                               follows:
that the suit is based on conduct within the general scope
of the employee’s employment and (2) that the suit could
have been brought under the Texas Tort Claims Act                           During August of 2009, Dr.
against the governmental unit. Id.;Franka v. Velasquez,                     Ohunene Ameena Isa was in San
332 S.W.3d 367, 381 (Tex.2011). Actually, the first prong                   Antonio as a part of her residency
of the above test encompasses two inquires—whether the                      training   with     Texas     Tech
individual defendant was an employee of a governmental                      University Health Sciences Center.
unit and whether she was acting in the scope of that                        At the time of the accident on
employment at the relevant time. Turner v. Zellers, 232                     August 5, 2009, Dr. Ohunene
S.W.3d 414, 417 Tex.App.-Dallas 2007, no pet.),                             Ameena Isa was acting within the
disapproved on other grounds byFranka, 332 S.W.3d at                        course and scope of her
382 n. 67.                                                                  employment with Texas Tech
                                                                            University Health Sciences Center.
In the instant case, the parties do not dispute that Texas
Tech University Health Sciences Center is a                    Watkins filed written objections to McMahon’s affidavit3
governmental entity, that Isa was an employee of that          and argued during the hearing that the affidavit should be
governmental entity on the day of the accident, or that the    disregarded because it failed to state facts to support the
suit could have been brought under the Texas Tort Claims       legal conclusion that Isa was acting within the course and
Act against the governmental entity. They do dispute,          scope of her employment with a governmental entity at
however, whether Isa was acting within the general scope       the time of the accident. The trial court denied Watkins’s
of her employment at the time of the automobile accident.      objections to McMahon’s affidavit. We review trial court
The Tort Claims Act defines “scope of employment” as           rulings on the admissibility of evidence under an abuse of
“the performance for a governmental unit of the duties of      discretion standard. K–Mart Corp. v. Honeycutt, 24
an employee’s office or employment and includes being          S.W.3d 357, 360 (Tex.2000) (per curiam).
in or about the performance of a task lawfully assigned to
an employee by competent authority.”Tex. Civ. Prac. &
Rem.Code Ann. § 101.001(5) (West Supp.2011).
                                                               Evidentiary Challenge to Conclusory Affidavit
                                                               *3 “A conclusory statement is one that does not provide
                                                               the underlying facts to support the conclusion.”Rodriguez
                                                               v. Wal–Mart Stores, Inc., 52 S.W.3d 814, 823
               STANDARD OF REVIEW                              (Tex.App.-San Antonio 2001), rev’d on other grounds,92
                                                               S.W.3d 502 (Tex.2002). Conclusory statements without
The election of remedies provision under the current           factual support are not credible, and are not susceptible to
Texas Tort Claims Act confers immunity from suit or            being readily controverted. Ryland Group, Inc. v. Hood,
recovery. Franka, 332 S.W.3d at 371 n. 9.“Immunity             924 S.W.2d 120, 122 (Tex.1996) (per curiam); TEX.R.
from suit deprives a trial court of jurisdiction.”City of      CIV. P. 166a(f) (“Supporting and opposing affidavits
Houston v. Williams, 353 S.W.3d 128, 133 (Tex.2011).           shall be made on personal knowledge, shall set forth such
We review a trial court’s ruling on a challenge to the trial   facts as would be admissible in evidence, and shall show
court’s subject matter jurisdiction de novo.Tex. Dep’t of      affirmatively that the affiant is competent to testify to the
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228               matters stated therein.”). Here, McMahon provides
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Watkins v. Isa, Not Reported in S.W.3d (2012)
2012 WL 2021929

absolutely no factual basis or explanation for his                      record, Isa has failed to meet her burden required for
statement that Isa was acting in the course and scope of                dismissal pursuant to section 101.106(f).Franka, 332
her employment at the time of the accident. By simply                   S.W.3d at 381; Univ. of Tex. Health Sci. Ctr. at San
stating “at the time of the accident ... Isa was acting                 Antonio v. Webber–Eells, 327 S.W.3d 233, 242
within the course and scope of her employment with                      (Tex.App.-San Antonio 2010, no pet.)(“If the plaintiff
Texas Tech University Health Sciences Center,”                          decides to continue the suit against the employee, the
McMahon asserts only a legal conclusion without factual                 plaintiff need not take any action, and the employee’s
basis or rationale. See Brownlee v. Brownlee, 665 S.W.2d                motion can be granted only if the employee proves that
111, 112 (Tex.1984). Affidavit testimony that is                        his conduct was within the general scope of his
conclusory is substantively defective and amounts to no                 employment and that the suit could have been brought
evidence. See Coastal Transport Co. v. Crown Cent.                      against the governmental unit.”).
Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004)
(opinion testimony that is conclusory or speculative is not             *4 Nor are we persuaded by Isa’s argument that Watkins
relevant evidence, because it does not tend to make the                 had a burden to establish that Isa was not acting within
existence of a material fact more probable or less                      the course of her employment. First, that contention is
probable); Anderson v. Snider, 808 S.W.2d 54, 55                        contrary to the plain language of the statute which places
(Tex.1991) (testimony comprised only of legal                           the burden on the governmental employee to seek
conclusions is insufficient to support summary judgment                 dismissal under section 101.106(f).TEX. CIV. PRAC. &
as a matter of law); City of Mission v. Popplewell, 156                 REM.CODE ANN. § 101.106(f). It is the movant’s
Tex. 269, 294 S.W.2d 712, 717 (1956) (“Parol evidence                   burden to establish that the conditions of the statute have
in the form of opinions and conclusions without                         been met in order to obtain dismissal under section
documentary basis is inadmissible to establish such title,              101.106(f).See Kelemen v. Elliott, 260 S.W.3d 518, 520
and even if admitted without objection is of no probative               (Tex.App.Houston [1st Dist.] 2008, no pet.). In Kelemen,
force.”). For this reason, we conclude the trial court erred            a former city police officer brought suit against the city
when it denied Watkins’s objection to McMahon’s                         and a fellow officer claiming she was wrongfully
affidavit. We now turn to the remaining record to                       terminated after reporting that she had been sexually
determine if there is other proof that Isa was acting in the            assaulted. Id. Her suit against the city asserted statutory
course and scope of her employment at the time of the                   claims of retaliation and discrimination and her suit
accident.                                                               against the individual officer asserted various common
                                                                        law assault-based claims. Id. The city moved to dismiss
                                                                        the individual officer from the lawsuit based on immunity
                                                                        under section 101.106(f).Id. The Houston Court of
Course and Scope of Employment                                          Appeals refused to dismiss the officer because he failed to
As a general rule, an employee is not in the course and                 meet the first prong of his burden of proof, that is, he
scope of his employment while driving his own vehicle to                failed to show that the alleged assault of a fellow officer
and from his place of work. See Kennedy v. Am. Nat’l Ins.               was within the general scope of his employment with the
Co., 130 Tex. 155, 107 S .W.2d 364, 365 (1937); Terrell                 city. Id. at 524.
ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274, 278
(Tex.App.-Texarkana 2003, no pet.)(holding that county
employee, who killed person with car, did not act in scope
of employment because she was on her way to personal
appointment in her own car). Although there are                                               CONCLUSION
exceptions to this general rule, Isa has wholly failed to
present any evidence about the circumstances of her                     Because Isa did not meet her burden of establishing that
driving on the day of the accident. Other than the                      she was acting in the course and scope of her employment
conclusory statement by McMahon, Isa has presented no                   with a governmental entity at the time of the automobile
evidence that she was in the performance of the duties of               accident, we reverse the trial court’s judgment and
her employment at the time of her automobile accident.                  remand the cause to the trial court for further proceedings.
As stated earlier, we find McMahon’s affidavit
substantively defective and therefore insufficient as a
matter of law. See Anderson, 808 S.W.2d at 55. On this

    Footnotes
1        Jones, the Assistant Vice President of Human Resources for Texas Tech University Health Sciences Center, testified in relevant

                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
Watkins v. Isa, Not Reported in S.W.3d (2012)
2012 WL 2021929

         part that Isa was “employed” by TTUHSC from September 1, 2007 until August 31, 2010.

2        McMahon, Chairman of the Department of Psychiatry for Texas Tech University Health Sciences Center, testified in relevant part
         that at the time of the accident on August 5, 2009, Isa “was acting within the course and scope of her employment” with TTUHSC.

3        Watkins also filed objections to the affidavit of Gena Jones who testified that Isa was employed by Texas Tech University Health
         Sciences Center. However, it is not necessary to our opinion to address Watkins’s objections to the Jones affidavit.
         SeeTEX.R.APP. P. 47.1.




    End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  4
APPENDIX 3
Ji-Haw Indus. Co., Ltd. v. Broquet, --- S.W.3d ---- (2008)




                    2008 WL 441822                                 Cases that cite this headnote
      Only the Westlaw citation is currently available.

     NOTICE: THIS OPINION HAS NOT BEEN
     RELEASED FOR PUBLICATION IN THE
                                                             [2]
PERMANENT LAW REPORTS. UNTIL RELEASED,                             Courts
IT IS SUBJECT TO REVISION OR WITHDRAWAL.                             Allegations, pleadings, and affidavits

                 Court of Appeals of Texas,                        The plaintiff bears the initial burden of pleading
                       San Antonio.                                sufficient allegations to bring a nonresident
                                                                   defendant within the provisions of the long-arm
     JI–HAW INDUSTRIAL CO., LTD. and JBT                           statute. V.T.C.A., Civil Practice & Remedies
           International, Inc., Appellants                         Code § 17.042.
                          v.
    Bonnie BROQUET, Individually and as Next
 Friend and as Legally Appointed Representative of                 Cases that cite this headnote
       Kyla Deanne Lazo, a Minor, Microsoft
 Corporation, Gamestop Corp., Gamestop of Texas
    (GP), LLC, Gamestop of Texas, LP, and Roel
                 Santos, Appellees.
                                                             [3]
                                                                   Courts
         No. 04–07–00622–CV. | Feb. 20, 2008.                        Allegations, pleadings, and affidavits

                                                                   In an action against a nonresident defendant, the
                                                                   plaintiff is not required to detail all theories or
Synopsis
                                                                   bases of personal jurisdiction relied upon; rather,
Background: Consumer brought products liability action
                                                                   the only requirement is that the plaintiff plead
against nonresident manufacturer. The 229th Judicial
                                                                   allegations sufficient to bring the nonresident
District Court, Duval County, Alex William Gabert, J.,
                                                                   defendant within the province of the long-arm
denied manufacturer’s special appearance, and
                                                                   statute. V.T.C.A., Civil Practice & Remedies
manufacturer appealed.
                                                                   Code § 17.042.


                                                                   Cases that cite this headnote
[Holding:] The Court of Appeals, Steven C. Hilbig, J.,
held that consumer alleged sufficient facts to bring
defendant manufacturer within long-arm statute.

                                                             [4]
                                                                   Courts
Affirmed.
                                                                     Presumptions and Burden of Proof as to
                                                                   Jurisdiction

                                                                   Once the plaintiff meets the pleading
 West Headnotes (9)                                                requirement pleads sufficient allegations to
                                                                   bring a nonresident defendant within the
                                                                   provisions of the long-arm statute, the burden
[1]
          Appeal and Error                                         shifts to the defendant challenging jurisdiction
            Cases Triable in Appellate Court                       through a special appearance to negate all bases
                                                                   of personal jurisdiction. V.T.C.A., Civil Practice
          Whether a court has jurisdiction over a                  & Remedies Code § 17.042.
          nonresident defendant is a question of law
          subject to de novo review.                               Cases that cite this headnote

                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
Ji-Haw Indus. Co., Ltd. v. Broquet, --- S.W.3d ---- (2008)




                                                                    Cases that cite this headnote


[5]
        Courts
          Presumptions and Burden of Proof as to
                                                              [8]
        Jurisdiction                                                Constitutional Law
                                                                      Non-residents in general
        In an action against a nonresident defendant, if a          Courts
        plaintiff does not plead jurisdictional                       Actions by or Against Nonresidents, Personal
        allegations, i.e., that the defendant has                   Jurisdiction In;  “Long-Arm” Jurisdiction
        committed any act in Texas, the defendant can
        satisfy its burden to negate all bases of personal          In an action against a nonresident defendant,
        jurisdiction by simply proving it is a                      when the plaintiff has pled facts authorizing
        nonresident. V.T.C.A., Civil Practice &                     jurisdiction under the long-arm statute, a
        Remedies Code § 17.042.                                     nonresident defendant can negate jurisdiction by
                                                                    proving (1) the defendant is not amenable to
                                                                    service under the long-arm statute, or (2)
        1 Cases that cite this headnote                             exercising jurisdiction over the non-resident
                                                                    defendant would not comport with due process.
                                                                    U.S.C.A. Const.Amend. 14; V.T.C.A., Civil
                                                                    Practice & Remedies Code § 17.042.
[6]
        Courts
          Presumptions and Burden of Proof as to                    Cases that cite this headnote
        Jurisdiction

        In an action against a nonresident defendant, if
        the defendant proves nonresidency or otherwise
                                                              [9]
        negates personal jurisdiction, the burden then              Courts
        returns to the plaintiff to show as a matter of law           Allegations, pleadings, and affidavits
        the trial court has personal jurisdiction over the          Courts
        defendant. V.T.C.A., Civil Practice & Remedies                Presumptions and Burden of Proof as to
        Code § 17.042.                                              Jurisdiction

                                                                    Consumer’s complaint, describing incident in
        Cases that cite this headnote                               which video game allegedly caught fire, alleging
                                                                    it was a result of the video game including
                                                                    component parts manufactured by defendant,
                                                                    alleging the incident forming the basis of the
[7]
                                                                    suit occurred in Texas, and that consumer was a
        Constitutional Law                                          Texas resident, alleged sufficient facts to bring
          Non-residents in general                                  defendant manufacturer within long-arm statute,
        Courts                                                      and thus manufacturer could not simply prove
          Actions by or Against Nonresidents, Personal              its nonresidency to sustain its burden to negate
        Jurisdiction In;  “Long-Arm” Jurisdiction                   all bases of personal jurisdiction. V.T.C.A.,
                                                                    Civil Practice & Remedies Code § 17.042(2).
        Courts may assert personal jurisdiction over a
        nonresident if (1) the long-arm statute authorizes
        the exercise of jurisdiction, and (2) the exercise          Cases that cite this headnote
        of jurisdiction is consistent with federal and
        state constitutional due-process guarantees.
        U.S.C.A. Const.Amend. 14; V.T.C.A., Civil
        Practice & Remedies Code § 17.042.
                                                              Attorneys and Law Firms
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 2
Ji-Haw Indus. Co., Ltd. v. Broquet, --- S.W.3d ---- (2008)



Andrew L. Kerr, J. Alex Huddleston, Deborah D.                After a hearing, the trial court denied Ji–Haw’s special
Difilippo, Strasburger & Price, L.L.P., San Antonio, TX,      appearance. Ji–Haw timely perfected this appeal.
for Appellant.

Douglas A. Allison, Law Offices of Douglas A. Allison,
Darrell L. Barger, Hartline, Dacus, Barger, Dreyer &
Kern, L.L.P., David W. Green, Eduardo Roberto                                       APPLICABLE LAW
Rodriguez, Rodriguez, Colvin, Chaney & Saenz, L.L.P.,
Brownsville, TX, Jerry K. Clements, Locke Liddell &
Sapp, L.L.P., Austin, TX, Thomas G. Yoxall, Locke Lord
                                                                        Standard of Review and Burden of Proof
Bissell & Liddell L.L.P., Dallas, TX, Scot G. Doyen,
Doyen Sebesta, Ltd., L.L.P., Corpus Christi, TX, Reagan       [1]
                                                                  Whether a court has jurisdiction over a nonresident
Wm. Simpson, King & Spaulding LLP, Houston, TX,               defendant is a question of law subject to de novo review.
William J. Tinning, William J. Tinning, P.C., Portland,       Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,
TX, for Appellee.                                             574 (Tex.2007) (citing BMC Software Belgium, N.V. v.
                                                              Marchand, 83 S.W.3d 789, 794 (Tex.2002)). When
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN
                                                              reviewing an issue de novo, the appellate court “exercises
MARION, Justice, STEVEN C. HILBIG, Justice.
                                                              its own judgment and redetermines each legal issue,”
                                                              without any deference to the trial court. Hotels.com, L.P.
                                                              v. Canales, 195 S.W.3d 147, 151 (Tex.App.-San Antonio
                                                              2006, no pet.) (quoting Quick v. City of Austin, 7 S.W.3d
                       OPINION                                109, 116 (Tex.1998)).
                                                              [2] [3] [4] [5] [6]
                                                                               “The plaintiff bears the initial burden of
Opinion by: STEVEN C. HILBIG, Justice.                        pleading sufficient allegations to bring a nonresident
                                                              defendant within the provisions of the long-arm statute.”
*1 This is an appeal from the denial of a special             BMC Software, 83 S.W.3d at 793. The plaintiff is not
appearance. Ji–Haw Industrial Co., Ltd. and JBT               required to detail all theories or bases of personal
International, Inc. (“Ji–Haw”) bring three issues             jurisdiction relied upon. Huynh v. Nguyen, 180 S.W.3d
contending the trial court erred in denying their special     608, 619 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
appearance. In its first issue, the resolution of which is    Rather, the only requirement is that the plaintiff plead
dispositive of this appeal, Ji–Haw alleges its proof of       allegations sufficient to bring the nonresident defendant
nonresidency was sufficient to sustain its special            within the province of the long-arm statute. Id. Once the
appearance. We disagree and affirm the denial of              plaintiff meets this pleading requirement, the burden
Ji–Haw’s special appearance.                                  shifts to the defendant challenging jurisdiction through a
                                                              special appearance to negate all bases of personal
                                                              jurisdiction. BMC Software, 83 S.W.3d at 793. If,
                                                              however, “the plaintiff does not plead jurisdictional
                                                              allegations, i.e., that the defendant has committed any act
                    BACKGROUND                                in Texas,” the defendant can satisfy its burden by simply
                                                              proving it is a nonresident. Oryx Capital, 167 S.W.3d at
Bonnie Broquet, Individually and as Next Friend and as
                                                              441. If the defendant proves nonresidency or otherwise
Legally Appointed Representative of Kyla Deanne Lazo,
                                                              negates personal jurisdiction, the burden then returns to
a Minor, brought suit against Ji–Haw and several other
                                                              the plaintiff to show as a matter of law the trial court has
defendants to recover personal injury damages allegedly
                                                              personal jurisdiction over the defendant. Id.
sustained when an XBOX game system caught fire.
Ji–Haw filed a special appearance asserting as its only
ground that it was not a Texas resident. Ji–Haw provided
proof of nonresidency through the affidavit of an
employee. Ji–Haw argued proof of nonresidency was                                    Substantive Law
sufficient to sustain its special appearance because
Broquet failed to plead any jurisdictional facts that would   *2 [7] [8] Texas courts may assert personal jurisdiction over
subject Ji–Haw to the jurisdiction of a Texas court.1 See     a nonresident if “(1) the Texas long-arm statute authorizes
Oryx Capital Int’l, Inc. v. Sage Apartments, L.L.C., 167      the exercise of jurisdiction, and (2) the exercise of
S.W.3d 432, 441 (Tex.App.-San Antonio 2005, no pet.).         jurisdiction is consistent with federal and state
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Ji-Haw Indus. Co., Ltd. v. Broquet, --- S.W.3d ---- (2008)



constitutional due-process guarantees.” Moki Mac, 221            that Ji–Haw committed a tort in Texas, which is all that is
S.W.3d at 574. When the plaintiff has pled facts                 required under the long-arm statute. See Tex. Dep’t of
authorizing jurisdiction under the long-arm statute, a           Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
nonresident defendant can negate jurisdiction by proving         (Tex.2004) (holding that in determining plea to
(1) the defendant is not amenable to service under the           jurisdiction pleadings are liberally construed in favor of
Texas long-arm statute, or (2) exercising jurisdiction over      pleader in assessing whether he has pled sufficient facts to
the non-resident defendant would not comport with due            demonstrate trial court’s jurisdiction); id. at 240 (Brister,
process. See id. at 574–75. The long-arm statute                 J., dissenting) (categorizing substance of special
authorizes the exercise of jurisdiction over nonresidents        appearance as plea to jurisdiction); see also TEX. CIV.
“doing business” in Texas. TEX. CIV. PRAC. &                     PRAC. & REM.CODE ANN. § 17.042(2). By describing
REM.CODE ANN. § 17.042 (Vernon 1997). The statute                the incident, alleging it was a result of the XBOX,
describes what, “[i]n addition to other acts,” may               including component parts manufactured by the
constitute doing business in Texas. Pertinent to this            “Defendants,” alleging the incident forming the basis of
appeal is subsection two, which provides that a                  the suit occurred in Texas, and that she is a Texas
nonresident does business in Texas if it “commits a tort in      resident, Broquet did, contrary to Ji–Haw’s assertion,
whole or in part in this state.” Id. § 17.042(2).                allege sufficient facts to bring Ji–Haw within the
                                                                 long-arm statute.

                                                                 *3 Ji–Haw asserts that portions of the jurisdictional
                                                                 allegations discussed above should not be considered
                          Analysis                               because they are contained in that part of the petition
[9]                                                              asserting venue and that Broquet’s tort allegations are
   In its first issue, Ji–Haw contends the trial court erred     insufficient. We disagree. In her petition, Broquet alleged:
in denying its special appearance because it met its
burden to negate all bases of jurisdiction. Ji–Haw argues
                                                                              Venue is proper in Duval County,
that Broquet did not plead any jurisdictional allegations in
                                                                              Texas,    pursuant    to    Section
her petition. Ji–Haw contends it was therefore only
                                                                              15.002(a)(1) of the Texas Civil
required to prove nonresidency and its proof on this point
                                                                              Practice and Remedies Code. All
was undisputed. We recognize that a failure to plead
                                                                              or a substantial part of the events
jurisdictional allegations requires the defendant simply to
                                                                              or omissions giving rise to this
prove nonresidency to sustain its burden. However, we
                                                                              claim occurred in Duval County,
disagree with the contention that Broquet did not plead
                                                                              Texas.
jurisdictional allegations invoking the long-arm statute.

In her First Amended Petition, Broquet specifically              (emphasis added). We have found no case, and Ji–Haw
                                                                 has cited none, holding or suggesting that the sufficiency
named each defendant and stated that all defendants
would be referred to collectively as “Defendants.” She           of jurisdictional allegations is dependent upon their
alleged that a fire started in her home as a result of a         placement within the petition. Further, we have found no
                                                                 case, and Ji–Haw has cited none, holding or suggesting
defect in an XBOX game system (“the game console
itself and/or the power line cord, and/or these components       that we should not consider the petition as a whole in
in combination”) that was “designed, manufactured and            determining whether a plaintiff has pled sufficient
                                                                 jurisdictional facts to invoke the long-arm statute. At least
marketed by Defendants.” In a separate section of the
petition entitled “Defendants Ji–Haw,” Broquet alleged           one court has held that consideration of the venue portion
Ji–Haw was “legally responsible for the incident made the        of a petition is proper in determining the sufficiency of
                                                                 jurisdictional allegations. See Thunderbird Supply Co. v.
basis of this suit.” She asserted Ji–Haw was guilty of
negligence and its negligence was a proximate cause of           Williams, 161 S.W.3d 731, 733–34 (Tex.App.-Beaumont
the incident underlying the suit. Broquet further alleged        2005, no pet.).
Ji–Haw was strictly liable and that its conduct was a
producing cause of the fire and injuries. In asserting strict    In Thunderbird, the plaintiff alleged he was a Jefferson
liability, she referenced the theories set forth against other   County, Texas resident and in his venue allegation stated,
                                                                 “Venue in Jefferson County is proper in that all or a
defendants earlier in the petition. Finally, she alleged that
“[a]ll or a substantial part of the events or omissions          substantial part of the events or omissions giving rise to
                                                                 the claims occurred in this county.” Id. at 733. In other
giving rise to this claim occurred in Duval County,
Texas,” and she is a resident of Texas. These allegations,       portions of the petition the plaintiff alleged “he was
when considered together and liberally construed, assert         exposed to ‘various toxic products designed,

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Ji-Haw Indus. Co., Ltd. v. Broquet, --- S.W.3d ---- (2008)



manufactured and marketed’ by the thirteen so-called                  each in separate sections of her petition. Broquet did not
‘Jewelry Defendants,’ ” but did not allege the exposure               simply allege Ji–Haw was liable with the other defendants
occurred in Texas. Id. The court first noted that                     based on joint and several liability, agency, or conspiracy
commission of a tort within the state is one means by                 as did the plaintiff in Siskind. Moreover, Siskind was
which a nonresident may be deemed to be doing business                clearly concerned with the absence of allegations of any
in Texas. Id. at 733–34 (citing TEX. CIV. PRAC. &                     acts by the individuals, not with the general nature of the
REM.CODE ANN. § 17.042(2) (Vernon 1997)). Then,                       negligence allegations, which is Ji–Haw’s actual
obviously considering the venue allegation with the                   complaint. Id. at 437.
general tort allegation, the court held the plaintiff had
“met his initial burden of pleading allegations sufficient to         Ji–Haw, quoting Michiana, argues jurisdiction “cannot
bring [the defendant] within the long-arm statute,”                   turn on whether a plaintiff alleges wrongdoing—as
thereby shifting the burden to the defendant to negate all            virtually all will.” 168 S.W.3d at 791. However, the issue
bases of personal jurisdiction alleged. Id. at 734.                   in Michiana was not whether the plaintiff’s petition
                                                                      contained sufficient jurisdictional allegations to invoke
Just as in Thunderbird, Broquet alleged she was a Texas               the long-arm statute. Rather, with regard to the quote
resident and, in the venue portion of her petition, alleged           relied upon by Ji–Haw, the court was addressing whether
that all or a substantial part of the events or omissions             jurisdiction is measured by an absence of minimum
giving rise to her claims occurred in Texas. In other                 contacts or a lack of culpability. Id. Clearly, Michiana is
portions of the petitions she included general negligence             irrelevant to the issue in this case and like Siskind does
allegations against all of the defendants as well as                  not compel the result sought by Ji–Haw.
negligence allegations particular to Ji–Haw. Accordingly,
Broquet met her initial burden of pleading allegations                We conclude Broquet alleged sufficient jurisdictional
sufficient to bring Ji–Haw within the long-arm statute.               facts to bring Ji–Haw within the Texas long-arm statute.
See id.                                                               Accordingly, the burden shifted to Ji–Haw to negate all
                                                                      bases of personal jurisdiction, see BMC Software, 83
Ji–Haw contends Thunderbird is inapplicable because it                S.W.3d at 793, not merely prove non-residency. See Oryx
conflicts with Siskind v. Villa Found. for Educ., 642                 Capital, 167 S.W.3d at 441. Because Ji–Haw only alleged
S.W.2d 434 (Tex.1982) and Michiana Easy Livin’                        and proved non-residency in its special appearance, it did
Country, Inc. v. Holten, 168 S.W.3d 777 (Tex.2005). We                not negate all bases of personal jurisdiction. See
disagree. Siskind is factually distinguishable and neither            Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d
Siskind nor Michiana address the specific issue presented             669, 673 (Tex.App.-Dallas 1993, writ dism’d by ag’t).
in this case.
                                                                      We overrule Ji–Haw’s first issue. Our resolution of this
*4 In Siskind, a plaintiff brought suit against an Arizona            issue is dispositive of this appeal and, therefore we need
school and several individual school employees. 642                   not address Ji–Haw’s other issues. The trial court’s order
S.W.2d at 434–35. The school and the individual                       denying Ji–Haw’s special appearance is affirmed.
defendants filed special appearances. Id. at 435. In
holding the individual defendants sustained their burden              1
                                                                              After Ji–Haw filed its special appearance and set the
by proving nonresidency, the supreme court made it clear                      matter for hearing, Microsoft Corporation and the
the plaintiff had not alleged any acts by the individuals in                  Gamestop entities filed cross-claims against Ji–Haw.
Texas. In his allegations, apart from a breach of contract                    These entities also filed oppositions to Ji–Haw’s special
claim, the plaintiff failed to “differentiate between [the                    appearance. Given our disposition of this appeal, we
school] and the individual [defendants]”; rather, the                         need not address the effect, if any, of the cross-claims.
plaintiff claimed all the defendants were jointly and                         We note that only Microsoft Corporation and the
                                                                              Gamestop entities have filed appellees’ briefs in this
severally liable, and that the individuals were individually
                                                                              appeal.
liable and as agents of the school. Id. at 436 n. 3. Here,
while Broquet alleged the fire was caused by an XBOX
“that was designed, manufactured and marketed by
Defendants,” she also differentiated between the various
defendants, alleging negligence and other claims against
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