                                                                                                           ACCEPTED
                                                                                                      13-16-00074-CV
                                                                                      THIRTEENTH COURT OF APPEALS
                                                                                             CORPUS CHRISTI, TEXAS
                                                                                                 4/26/2016 4:34:31 PM
                                                                                                     Dorian E. Ramirez
                                                                                                                CLERK

                                     No. 13-16-00074-CV

                  IN THE THIRTEENTH COURT OF APPEALS
                                                 FILED IN
                                                  13th COURT OF APPEALS
                                               CORPUS CHRISTI/EDINBURG, TEXAS
                          CORPUS CHRISTI, TEXAS 4/26/2016 4:34:31 PM
                                                    DORIAN E. RAMIREZ
                 ___________________________________________
                                                          Clerk


                   MASTERCRAFT BOAT COMPANY, LLC,
                                  Appellant,
                                      v.
                            REBECCA CHAMBERS
                                   Appellee.
                 ___________________________________________

                    Appealed from the County Court at Law No. 3
                              Of Nueces County, Texas

__________________________________________________________________

           APPELLEE REBECCA CHAMBER’S RESPONSE BRIEF

----------------------------------------------------------------------------------------------------

                                              Douglas A. Allison
                                              Texas Bar No. 01083500
                                              doug@dallisonlaw.com
                                              Law Office of Douglas A. Allison
                                              403 N. Tancahua
                                              Corpus Christi, Texas 78401
                                              Telephone: 361-888-6002
                                              Facsimile: 361-888-6651
                                              ATTORNEY FOR APPELLEE
                                              REBECCA CHAMBERS

  APPELLEE REBECCA CHAMBERS REQUESTS ORAL ARGUMENT




                                                 i
                               No. 13-16-00074-CV

                       MasterCraft Boat Company, LLC

                                    Appellant,

                                         v.

                               Rebecca Chambers,

                                     Appellee.

______________________________________________________________________________

                       IDENTITY OF PARTIES & COUNSEL
_____________________________________________________________________________________

Appellant MasterCraft Boat Company, LLC
Marc Evan Kutner, Esq.
Texas Bar No. 11770575
MKutner@leggefarrow.com
Michael J. Wray, Esq.
Texas Bar No. 24052191
MWray@leggefarrow.com
Legge, Farrow, Kimmitt, McGrath & Brown, LLP
5151 San Felipe, Suite 400
Houston, Texas 77056
Telephone: 713-917-0888
Facsimile: 713-953-9470

Appellee Rebecca Chambers
Douglas A. Allison
Texas Bar No. 01083500
doug@dallisonlaw.com
Law Office of Douglas A. Allison
403 N. Tancahua
Corpus Christi, Texas 78401
Telephone: 361-888-6002
Facsimile: 361-888-6651



                                         ii
                                                           TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ............................................................. ii	  
INDEX OF AUTHORITIES ................................................................................. iv	  
STATEMENT OF THE CASE .............................................................................. v	  
STATEMENT ON ORAL ARGUMENT ............................................................ vi	  
ISSUES PRESENTED FOR REVIEW ............................................................... vii	  
  Issue	  1:	  	  	   Whether	  MasterCraft	  Boat	  Company	  LLC	  (Appellant)	  did	  purposefully	  avail	  
                          itself	  of	  the	  privilege	  of	  conducting	  activities	  within	  the	  State	  of	  Texas	  to	  such	  
                          an	  extent	  so	  as	  to	  established	  minimum	  contacts	  sufficient	  to	  support	  the	  trial	  
                          court’s	  exercise	  of	  general	  jurisdiction	  over	  Appellant.	  ............................................	  vii	  
  Issue	  2:	  	  	   Whether	  MasterCraft	  Boat	  Company	  LLC’s	  (Appellant’s)	  alleged	  liability	  in	  this	  
                          case	  arise	  out	  of	  or	  relates	  to	  Appellant’s	  purposeful	  activity	  in	  the	  State	  of	  
                          Texas	  so	  as	  to	  support	  the	  trial	  court’s	  exercise	  of	  specific	  jurisdiction	  over	  
                          Appellant.	  ...................................................................................................................................	  vii	  
  Issue	  3:	  	  	   Whether	  the	  trial	  court’s	  exercise	  of	  jurisdiction	  over	  Appellant	  comports	  with	  
                          traditional	  notions	  of	  fair	  play	  and	  substantial	  justice.	  .............................................	  vii	  
  Issue	  4:	   Whether	  the	  trial	  court	  erred	  in	  failing	  to	  sustain	  Appellant’s	  objections	  to	  
                         certain	  deposition	  testimony,	  and	  whether	  such	  refusal,	  if	  any,	  to	  grant	  
                         Appellant’s	  objections	  was	  harmful	  error	  (if	  any).	  ........................................................	  vii	  

STATEMENT OF FACTS ..................................................................................... 1	  
SUMMARY OF ARGUMENT ............................................................................ 16	  
ARGUMENT ......................................................................................................... 18	  
  1.	     Plaintiff’s	  Pleadings	  Support	  this	  Court’s	  Exercise	  of	  Jurisdiction	  -­‐-­‐	  ...................................	  18	  
  2.	     Legal	  Authority	  in	  Support	  of	  a	  Court’s	  Exercise	  of	  Jurisdiction	  -­‐-­‐	  .......................................	  19	  
  3.	     This	  Court	  has	  Specific	  Jurisdiction	  over	  Appellant	  	  -­‐-­‐	  .............................................................	  23	  
  4.	     This	  Court	  has	  General	  Jurisdiction	  over	  Appellant	  	  -­‐-­‐	  .............................................................	  24	  

THIS COURT’S EXERCISE OF JURISDICTION DOES NOT OFFEND
TRADITIONAL NOTIONS OF FAIR PLAY ................................................... 29	  
  1.	     The	  burden	  upon	  Appellant	  	  -­‐-­‐	  ..........................................................................................................	  30	  
  2.	     The	  interest	  of	  Texas	  in	  Adjudicating	  this	  Dispute	  in	  Texas	  -­‐-­‐	  ..............................................	  31	  
  3.	     Plaintiff’s	  Interest	  in	  Obtaining	  Convenient	  /	  Effiective	  Relef	  -­‐-­‐	  ...........................................	  31	  
  4.	     Interstate	  Judicial	  System’s	  Interest	  in	  Obtaining	  Efficient	  Resolution	  .............................	  32	  
  5.	     Shared	  Interests	  of	  States	  to	  Further	  Social	  Policies	  -­‐-­‐	  ............................................................	  32	  

CONCLUSION ..................................................................................................... 33	  
CERTIFICATE OF SERVICE ........................................................................... 34	  


                                                                                       iii
                                            INDEX OF AUTHORITIES
Cases	  

American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.
 2002), cert. denied, 537 U.S. 1191 (2003) ......................................... 18, 19, 21, 24

Asahi Metal industiral Company, Ltd. v. Superior Court of California, Solano
 County, 480 U.S. 102, 113-115 (1987) .......................................................... 29, 30

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) ................ 20, 27, 29, 30

Frank A. Smith Sales, Inc., d/b/a Frank Smith Toyota v. Atlantic Aero, Inc., 31
 S.W.3d 742, 746 (Tex. App. - - Corpus Christi 2000, no pet.)...................... 18, 19

Guardian Royal Exch. Assurance, LTD. v. English China Clays, 815 S.W.2d 223
 (1991), 815 S.W.2d at 231 ................................................................................... 29

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, (2 L.Ed.2d 1283 (1958)). ... 21, 27

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1940) ......................... 20

Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)................. 21

M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n.1 (Tex.App. - - Corpus
 Christi 1999, no pet) ............................................................................................ 18

McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965) .......................................... 18

Mi Gwang Contact Lens Co. v. Chapa, No. 13-13-00306-CV, 2015 WL 3637846
 (Tex.App.—Corpus Christi June 11, 2015) .......................................................... vi

Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir. 1980)............................................. 22

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.
 2009) .................................................................................................................... 22

Schlobohm v. Shapiro, 784 S.W.2d 355, 357 (Tex. 1990). .............................. 20, 27

World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980) .................................. 30




                                                             iv
                         STATEMENT OF THE CASE


      Appellee sued Appellant for strict product liability arising from the design,

manufacture, and marketing of a boat. Appellee was a passenger on the boat, she

fell overboard, and the unguarded propeller traumatically amputated her leg. (CR

1:10) Appellant filed a special appearance to contest the Court’s jurisdiction. (CR

1:43-45.)   The Court denied Appellant’s special appearance by Order dated

January 28, 2016. (R 1:108.) This accelerated interlocutory appeal ensued.




                                        v
                      STATEMENT ON ORAL ARGUMENT


There is not a need for oral argument because the issues presented have been
authoritatively decided. See Tex. R. App. P. 39.1 (b). The Thirteenth Court of
Appeals has issued an opinion in Mi Gwang Contact Lens Co. v. Chapa, No. 13-
13-00306-CV, 2015 WL 3637846 (Tex.App.—Corpus Christi June 11, 2015), that
is on point.




                                      vi
                       ISSUES PRESENTED FOR REVIEW


Issue 1:   Whether MasterCraft Boat Company LLC (Appellant) did
           purposefully avail itself of the privilege of conducting activities
           within the State of Texas to such an extent so as to established
           minimum contacts sufficient to support the trial court’s exercise of
           general jurisdiction over Appellant.



Issue 2:   Whether MasterCraft Boat Company LLC’s (Appellant’s) alleged
           liability in this case arise out of or relates to Appellant’s purposeful
           activity in the State of Texas so as to support the trial court’s exercise
           of specific jurisdiction over Appellant.



Issue 3:   Whether the trial court’s exercise of jurisdiction over Appellant
           comports with traditional notions of fair play and substantial justice.



Issue 4:   Whether the trial court erred in failing to sustain Appellant’s
           objections to certain deposition testimony, and whether such refusal,
           if any, to grant Appellant’s objections was harmful error (if any).




                                        vii
                               STATEMENT OF FACTS


      On August 24, 2014, Rebecca Chambers was one of eight (8) passengers,

who were on-board the Appellant MasterCraft Boat Company LLC’s (“Appellant”)

boat owned by John “Dos” Dietz (“Defendant Dietz”).           Defendant Dietz was

captaining / operating the Appellant boat in Nueces County, Texas. Rebecca

Chambers was sitting on the bow of the Appellant’s boat while it was underway,

and she did suddenly and unexpectedly (from her perspective) get sucked under

and run over by the Appellant’s boat. Rebecca Chambers was then drawn into the

boat’s unguarded propeller --- and she suffered severe lacerations of her lower leg.

Rebecca Chambers floated to the water’s surface and found herself in a large pool

of her own blood. Others screamed for “Dos” Dietz to turn the boat around to

render aid, and “Dos” Dietz complied. Rebecca Chambers was floundering in her

effort to save herself, and she was then aided by others as the boat came back for

her. During the rescue effort, it was determined that Ms. Chambers’ lower leg had

been completely severed from her body -- and it could not be found. Rebecca was

rushed to the hospital for appropriate medical care and treatments.


      Rebecca Chambers filed this legal action on or about December 8, 2014,

against Defendant Dietz and Appellant. In response to Rebecca Chambers‘ filing

of the action, Defendant Dietz filed a general denial. In response to Rebecca


                                         1
Chambers‘ filing of the action, Appellant filed a special appearance, motion to

transfer venue, motion to dismiss on grounds of forum non conveniens, special

exceptions, general denial, pleadings setting forth affirmative defenses, and other

related / amended / supplemental pleadings.


      Rebecca Chambers’ current pleading on file is Plaintiff’s First Amended

Original Petition (and such pleading was the live pleading at the point in time

when the trial court considered Appellant’s special appearance). By this pleading,

Rebecca Chambers has made allegations supporting this Court’s general

jurisdiction and specific jurisdiction over the parties in this lawsuit (including

Appellant) and the subject matter of this lawsuit.       With regard to Appellant,

Rebecca Chambers has pleaded that Appellant is subject to Texas’ courts’

jurisdiction in this case because:


      1.   Appellant’s boat involved in this lawsuit is in the State of Texas because

           of Appellant’s purposeful, multi-million dollar internet promotional

           campaign directed at the State of Texas (which campaign directly caused

           Defendant Dietz to purchase the boat made the subject of this lawsuit);

           and


      2.   Appellant’s many and other continuous and systematic contacts with the

           State of Texas; to wit:       systematically and continuously sending


                                          2
employees and managers to the State of Texas; systematically and

continuously training service personnel to provide warranty work in the

State of Texas (and providing such warranty work in the State of Texas);

systematically and continuously providing recall services within the State

of Texas; systematically and continuously training sales personnel to sell

its boats in Texas; systematically and continuously sending its employees

to participate in promotional events in the State of Texas; systematically

and continuously signing contracts in Texas and/or with Texas

individuals   and/or   with   Texas    companies;    systematically   and

continuously signing contracts for services performable in Texas;

systematically and continuously advertising in Texas; systematically and

continuously conducting customer satisfaction surveys in Texas;

systematically and continuously resolving disputes in Texas (whether by

Alternate Dispute Resolution (ADR) or other); systematically and

continuously reimbursing others for sales work / promotions in Texas;

systematically and continuously partnering with others (individuals and

companies) in Texas; and systematically and continuously doing business

in the State of Texas for many years (including its payment of franchise

taxes to the State of Texas to allow Appellant to do its business in the

State of Texas (which has been quite profitable for Appellant)).


                               3
       The facts of the case do clearly demonstrate that Appellant’s relationship

with the State of Texas. Key facts are as follows:


          1.     Appellant -- and the time of the incident and for many years --

                 contracted with four (4) companies to serve as Appellant’s Texas

                 dealerships in the State of Texas;1

          2.     Appellant’s contracts with its authorized Texas dealers were (for the

                 pertinent time period) contracts with Texas companies;2

          3.     Appellant’s contracts with its authorized Texas dealers were (for the

                 pertinent time period) contracts performable in Texas;3

          4.     Appellant (‘regularly and frequently,’ and for the pertinent time

                 period) obligated itself -- and continues to obligate itself -- by way of

                 its warranty contracts with its Texas customers (Texas residents) to

                 provide warranty services (repairs) in the State of Texas, to pay for

                 warranty services in the State of Texas, and to deliver warranty

                 contracts to its Texas customers in the State of Texas;4


1
  Appellant ’s authorized dealers in the State of Texas (for the pertinent time period) were: (1) Texas
MasterCraft Ltd.; (2) Dockside Marine LLC; (3) Boat Town, Inc.; and (4) Texas Ski Ranch. See
authorized dealership contracts (Filed under seal in the trial court); see also deposition testimony of Tim
Oxley, (CR 1:271-275)
2
  See Texas Secretary of State documents (CR 1:446-456)
3
  See deposition testimony of Tim Oxley, (CR 1:314)
4
  See deposition testimony of Tim Oxley, (CR 1:309-315) (“Q. And so the [warranty] work is performable
in Texas, if it’s -- if the boat is taken to a Texas dealership? A. Correct . . . Q. . . . the work is going to
be performed in Texas? A. Yes. . . . Q. And the payment is going to go to the company in Texas? A.
We reimburse the dealer in Texas. . . . Q. So that warranty contract is delivered actually [to the boat
owner] in Texas? A. Correct). See also deposition testimony of Tim Oxley, (CR 1:356)


                                                       4
         5.    Appellant (for the pertinent time period) has paid substantial sums to

               honor warranty claims made in Texas (2011: $163,000.00; 2012:

               $203,000.00; 2013: $191,000.00; 2014: $194,000.00; and 2015:

               $165,000.00); 5

         6.    Appellant (continuously and systematically, and for the pertinent time

               period) performs its recall obligations in the State of Texas, and pays

               for its recall obligations in the State of Texas; 6

         7.    Appellant (for the pertinent time period) contracted in the State of

               Texas to be listed as an additional insured on Completed Products

               coverage’s negotiated and paid for in Texas -- and applicable to

               product liability cases filed in the State of Texas (thus, these are

               contracts performable in Texas for the benefit of Appellant);7

         8.    Appellant (though its vendor, and for the pertinent time period in

               question) developed a customer service index (“CSI”) by surveying its

               Texas customers to determine Texas customers’ satisfaction with its

               (Appellant’s) product;8

         9.    Appellant’s contracts (for the pertinent time period in question)

               obligate Appellant to come into Texas and pay claims for its


5
  See deposition testimony of Tim Oxley, (CR 1:355)
6
  See deposition testimony of Tim Oxley, (CR 1:316-317)
7
  See deposition testimony of Tim Oxley, (CR 1:325-330)
8
  See deposition testimony of Tim Oxley, (CR 1:318-322)


                                                  5
               authorized Texas dealerships (“indemnity”) in the event that a product

               defect exists with the MasterCraft product (this contract term is

               performable in Texas);9

         10.   Appellant has negotiated and resolved disputes (including Alternative

               Dispute Resolution) in the State of Texas;10

         11.   Appellant has agreed to the application of Texas law to interpretation

               of provisions of their contracts with Appellant’s authorized Texas

               dealerships;11

         12.   Appellant ’s contracts with its authorized Texas dealers (for the

               pertinent time period) gave Appellant sole discretion to define the

               geographic area of operations for each Texas dealership;12

         13.   Appellant’s contracts with its authorized Texas dealers (for the

               pertinent time period) gave Appellant one hundred percent (100%)

               control over incentive programs offered by its Texas dealerships;13

         14.   Appellant’s contracts with its authorized Texas dealers (for the

               pertinent time period) gave Appellant the power to set sales quotas for

               Appellant boat sales in Texas;14


9
  See deposition testimony of Tim Oxley, (CR 1:331)
10
   See deposition testimony of Tim Oxley, (CR 1:336-337)
11
   See deposition testimony of Tim Oxley, (CR 1:339)
12
   See deposition testimony of Tim Oxley, (CR 1:277-278)
13
   See deposition testimony of Tim Oxley, (CR 1:279)
14
   See deposition testimony of Tim Oxley, (CR 1:281-282)


                                                  6
            15.   Appellant’s employee -- its regional sales and marketing manager --

                  made (for the pertinent time period) ten (10) to twelve (12) trips per

                  year to the State of Texas for the purpose of meeting with and

                  supporting Appellant’s authorized Texas dealerships;15

            16.   Appellant’s “local [Texas] rep” (a term used by Tim Oxley to describe

                  Appellant’s regional sales and marketing manager) travels to the State

                  of Texas regularly and systematically to:

                  (a) increase Appellant’s market share;

                  (b) counsel with each “local [Texas] dealer”;

                  (c) provide each authorized Texas dealership with product training

                      (training to help Texas sales representatives distinguish and

                      promote Appellant’s boats, and related training about how to close

                      a deal);

                  (d) encourage local (Texas) marketing events (such events typically

                      including Appellant’s direct, in-person participation, and such

                      events wholly controlled by Appellant); and

                  (e) provide stocking and merchandizing recommendations for each

                      authorized Texas dealership. 16



15
     See deposition testimony of Tim Oxley, (CR 1:291, 1:357)
16
     See deposition testimony of Tim Oxley, (CR 1:288-291, 1:294-299)


                                                    7
         17.   Appellant routinely and systematically reimburses its “local [Texas]

               rep” (its regional sales and marketing manager), and others, for hotel

               stays in Texas, meals purchased in Texas for its employees, meals

               purchased in Texas for its customers / authorized Texas dealerships,

               rent-a-cars, cellular service bills, and internet service bills;17

         18.   In addition to Appellant’s regional sales and marketing manager’s

               trips to the State of Texas (10-12 / year), Appellant’s vice-president

               for global sales and marketing travels four (4) to six (6) times per year

               to the State of Texas; and Appellant’s president and CEO travels one

               (1) to (2) times per year to the State of Texas -- and all to promote

               sales and marketing in the State of Texas; 18

         19.   Appellant controls its authorized Texas dealership’s inventory (the

               Appellant’s boats on the sales floor, and in-stock MasterCraft parts

               and supplies);19

         20.   Appellant controls the days and hours of operation (for the pertinent

               time period) for its authorized Texas dealerships;20




17
   See deposition testimony of Tim Oxley, (CR 1:290-291)
18
   See deposition testimony of Tim Oxley, (CR 1:357-358)
19
   See deposition testimony of Tim Oxley, (CR 1: 302-303)
20
   See deposition testimony of Tim Oxley, (CR 1:304)


                                                   8
          21.   Appellant provided and/or approved (for the pertinent time period) all

                of the promotional and/or advertising materials to use by its

                authorized Texas dealerships -- to be displayed in the State of Texas;21

          22.   Appellant (for the pertinent time period) markets directly into Texas

                through the internet; 22

          23.   Appellant (for the pertinent time period) markets directly into Texas

                through billboards, radio, and television through its authorized Texas

                dealerships; 23

          24.   Appellant advertises (for the pertinent time period) in trade magazines

                that are regionally targeted to the Texas markets; 24

          25.   Appellant paid $1,037,500.00 to “Live Nation Motor Sports, Inc.” --

                a Texas corporation -- as a promotional / advertising fee for events in

                Texas25 (2008, 2009, and 2010); and agreed in its contract with Live

                Nation Motor Sports, Inc., that the agreement would “be governed by

                and construed according to the laws of the State of Texas”; 26



21
   See deposition testimony of Tim Oxley, (CR 1: 305-306)
22
   See deposition testimony of Tim Oxley, (CR 1: 339)
23
   See deposition testimony of Tim Oxley, (CR 1:340)
24
   See deposition testimony of Tim Oxley, (CR 1: 360-361)
25
   The sponsored events occurred in Texas, and other states. Appellant -- by their promotional fee -- was
entitled to display its logo on banners, to 15 second public addresses, to two (2) scoreboard mentions, to
two (2) jumbotron mentions, to participation in the pit party, to distribute hand-outs, to spots on CBS’s
broadcasts, to a full page color advertisement in the event program, to 10 VIP, passes, to 20
complimentary tickets, and more.
26
   See deposition testimony of Tim Oxley, (CR 1:364-367) see also Oxley, (CR 1: 368)(agreeing to the
“benefits and protections” of Texas law).


                                                    9
          26.   Appellant (for the pertinent time period) markets directly, and in-

                person (through its employees and contract employees), in the State of

                Texas at sponsored boat shows, clinics, and demonstration days and

                events;27

          27.   Appellant pays half (50%) of the cost of promoting boat shows and

                events in the State of Texas (as a “co-op” with its authorized Texas

                dealership);28

          28.   Appellant pays millions of dollars each year (for the pertinent time

                period) towards advertising (2011: $4.4 million dollars; 2012: $4.4

                million dollars; 2013: $3.4 million dollars; 2014: $4.2 million

                dollars) -- from which large sums are directed at marketing in the

                State of Texas (since Texas is Appellant ’s largest market); 29

          29.   Appellant is advertising in the State of Texas every day for the past

                five (5) years; 30

          30.   Appellant sells many boats each year into the State of Texas -- to its

                authorized Texas dealerships who are Texas companies (2011: 192

                MasterCraft boats sold to Texans; 2012: 151 MasterCraft boats sold

                to Texans; 2013: 182 MasterCraft boats sold to Texans; 2014: 136


27
   See deposition testimony of Tim Oxley, (CR 1:340-342, 1:351)
28
   See deposition testimony of Tim Oxley, (CR 1:342-344)
29
   See deposition testimony of Tim Oxley, (CR 1: 352) see also deposition of Jay Povlin, (CR 1:218-220)
30
   See deposition testimony of Tim Oxley, (CR 1: 353-354)


                                                  10
               MasterCraft boats sold to Texans; and 2015: 183 MasterCraft boats

               sold to Texans); 31 and

         31.   Appellant regards its cooperative efforts with its authorized Texas

               dealerships as a “partnership” (Mr. Oxley volunteered that Appellant

               does “characterize that [Texas dealership relationship] as a

               partnership”);32

The facts speak for themselves. The Appellant’s documents and sworn testimony

of their employees make clear that Appellant has a significant relationship with

the State of Texas.

With these factual discoveries now made of record, some candid testimony makes

clear Mr. Oxley’s view of his company’s (Appellant’s) relationship to the State of

Texas. Mr. Oxley is a corporate official employed by Appellant, and he did testify,

as follows:

               Q.      MasterCraft knows they have a lot of MasterCraft boats in

               Texas, and they’re very purposeful in making sure that they’re taking

               care of those customers and honoring those warranty claims?

               A.      Yes, I agree to that.33

               *****



31
   See deposition testimony of Tim Oxley, (CR 1:359)
32
   See deposition testimony of Tim Oxley, (CR 1: 345-346, 1:349-350)
33
   See deposition testimony of Tim Oxley, (CR 1: 357)


                                                  11
                  Q.      By MasterCraft’s advertising, I think you would agree that

                  MasterCraft’s contacts with the State of Texas are continuous?

                  A.      Yes. 34

                  ****

                  Q.      And systematic?

                  A.      Yes, using your definition of advertising where we display

                  brochures.

                  Q.      And considering warranty practices of MasterCraft, those

                  contacts with the State of Texas are also continuous? I don’t mean

                  every day, but they’re very frequent, and ongoing?

                  A.      I agree.

                  Q.      And, again, they’re systematic? The warranty contracts?

                  A.      Yes.35

                  *       ****

                  Q.      Is it fair to say that MasterCraft, certainly, has been -- as long as

                  you’ve been with the company -- doing business in Texas.

                  A.      Yes.

                  Q.      On a longstanding basis?

                  A.      Yes.

34
     See deposition testimony of Tim Oxley, (CR 1:370)
35
     See deposition testimony of Tim Oxley, (CR 1:371-372)


                                                    12
                  Q.      As a part of this longstanding business of MasterCraft in Texas,

                  it’s included marketing, correct?

                  A.      Yes.

                  Q.      Shipping their products to Texas, correct?

                  A.      Yes.

                  Q.      Performing services, including warranty services, in Texas?

                  A.      Yes.

                  Q.      And maintained authorized dealerships in Texas.

                  A.      Yes.

                  Q.      I mean, MasterCraft definitely and very purposefully wants the

                  benefits of doing business in Texas by selling their bots there, right?

                  A.      Yes.

                  Q.      MasterCraft definitely, intentionally, and purposefully wants to

                  take advantage of the Texas economy and whatever monies there are

                  available for luxury items, such as the ski, surf, and wakeboard boats?

                  A.      Yes.36

                  ****




36
     See deposition testimony of Tim Oxley, (CR 1:347-376)


                                                    13
               Q.      And is it true that MasterCraft -- we’ve already talked about

               how they have a very specific market territory for each of their

               authorized dealers in Texas, right?

               A.      Yes.

               Q.      And I think that those are placed strategically so they’re not

               overlapping with each other; fair to say?

               A.      Yes.37

               **   ***

               Q.      Those are very strategic decisions that MasterCraft has made in

               terms of how they want and where they want their products presented

               in Texas?

               A.      Yes.38

               **   ***

               Q.      So these contacts that we’ve talked about where MasterCraft is

               doing the advertising and the warranty claims and the different things

               that MasterCraft does throughout Texas, those are pervasive contact

               throughout the parts of the state that are your market?

               A.      Yes. 39

               *       ****
37
   See deposition testimony of Tim Oxley, (CR 1:376-377)
38
   See deposition testimony of Tim Oxley, (CR 1: 377-378)
39
   See deposition testimony of Tim Oxley, (CR 1:378)


                                                  14
                 Q.      Do you think that when you look at the things that MasterCraft

                 is doing directly in Texas, sometimes its own materials, sometimes

                 through its dealerships, do you think that Mastercraft’s contacts with

                 the state of Texas are substantial?

                 A.      Yes.

                 Q.      And purposeful for the purpose of helping sell MasterCraft

                 products in Texas?

                 A.      Yes. . . . .

                 Q.      I mean, MasterCraft definitely has a very specific intent to

                 serve the Texas markets and sell their ski, wakeboard, and surf boats

                 in Texas.

                 A.      Yes. 40

Again, this evidence speaks for itself. This evidence is not contradicted by any of

the documentary evidence, but rather supported by the documentary evidence.

        Additional evidence was presented to the trial court.                   Specifically, the

evidence proves that Appellant even pays franchise taxes to the State of Texas. In

2015, Appellant paid $28,843.60 in franchise taxes to the State of Texas for the

privilege of its conducting business in the State of Texas.41 Apparently, Appellant

has been following this appropriate practice for a number of years (i.e., paying

40
     See deposition testimony of Tim Oxley, (CR 1:378-379)
41
     See Texas Franchise Tax Payment Forms produced by Appellant , (CR 1:440-445)


                                                  15
taxes to the State of Texas for the purpose of allowing Appellant to do business in

the State of Texas).

        Finally, the record also contains evidence of Defendant “Dos” Dietz’s specific

reliance upon Appellant’s (MasterCraft’s) Texas contacts for the purchase of the

MasterCraft boat made the subject of the litigation. An affidavit42 signed by

Defendant Dietz was a part of the evidence considered by the trial court, and such

affidavit makes clear that Defendant Dietz purchased the boat made the subject of

this lawsuit as a direct result of Defendant Dietz’s review and consideration of

Appellant ’s promotional materials -- provided to Defendant Dietz via internet

and/or boat show promotions. Defendant Dietz’s affidavit makes clear that his

decision to purchase the MasterCraft boat made the subject of the litigation was

“substantially driven by information that [he] obtained from the MasterCraft Boat

Company’s promotional website (while [he] was in Texas).


                                SUMMARY OF ARGUMENT


          In this case, this trial court properly exercised its powers of both specific

jurisdiction -- and general jurisdiction -- over Appellant . The Appellant has been

doing business in Texas for many, many years. Appellant concedes the very

threshold question of ‘doing business in Texas’ by its payment of franchise taxes to

the State of Texas, and it cannot now be heard to complain of coming to Texas.
42
     (CR 1:479-480)


                                            16
Appellant sells its boats directly to Texas customers (including its authorized

Texas dealerships) by the hundreds each year, advertises in Texas, honors warranty

claims in Texas, honors recall claims in Texas, contracts in Texas, agrees to the

application of Texas law when it is to Appellant ’s benefit, trains sales persons to

sell its boats in Texas, trains repair persons to make repairs in Texas, and -- for

lack of a better phrase -- does everything it can in Texas to make money from

Texans.


      Moreover, the Appellant’s contacts with the State of Texas directly led to

Defendant Dietz’s decision to purchase a MasterCraft boat for use in Texas. The

affidavit of Defendant Dietz makes clear that his decision to purchase the

MasterCraft boat was “substantially driven by information that [he] obtained from

the MasterCraft Boat Company’s promotional website (while [he] was in Texas).

the affidavit of Defendant Dietz states that “the actual reason that I purchased my

MasterCraft boat was because of my internet browsing on the MasterCraft Boat

Company’s promotional website that was accomplished while I wa in the State of

Texas -- I just happened to thereafter locate my boat in the State of Florida.” The

trial court’s exercise of specific jurisdiction is also supported.


      Appellant’s contacts with Texas also give rise to the trial court’s exercise of

general and specific jurisdiction over this Appellant. Plaintiff has properly made

those allegations that triggered the trial court’s exercise of jurisdiction over

                                           17
Appellant. As such, Texas law shifts the burden of proof to Appellant to negate all

potential bases for a Texas’ court’s exercise of its jurisdiction.                 Appellant

completely failed to carry its burden to negate all potential bases for the trial

court’s exercise of jurisdiction, and thus the trial court made the proper ruling. The

trial court’s ruling should now be upheld on appeal.


                                          ARGUMENT

       1.     Plaintiff’s Pleadings Support this Court’s Exercise of Jurisdiction --
     Texas jurisprudence is quite clear that “[t]he plaintiff bears the initial burden

of pleading allegations sufficient to bring a nonresident defendant within the

provisions of the long-arm statute.”43 No Texas Supreme Court ruling has directly

decided the question of whether an appellate court should only consider the

plaintiff’s petition or also fully consider “extended . . . allegations in the petition”

(such as the plaintiff’s response to special appearance and/or supplements to

pleadings). However, the Texas Court of Appeals (Thirteenth District of Texas),

as a matter of actual practice, has historically considered all pleadings on file prior

to the hearing on special appearance (including the plaintiff’s pleadings responsive

to the defendant’s special appearance). “The meaning of the term “pleadings”

must be limited at least so as to exclude matters not filed prior to the special
43
   American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002), cert.
denied, 537 U.S. 1191 (2003); see also Frank A. Smith Sales, Inc., d/b/a Frank Smith Toyota v.
Atlantic Aero, Inc., 31 S.W.3d 742, 746 (Tex. App. - - Corpus Christi 2000, no pet.); McKanna
v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403,
408 n.1 (Tex.App. - - Corpus Christi 1999, no pet).

                                             18
appearance hearing.”44 A plaintiff’s pleading must set forth allegations sufficient

to support a trial court’s exercise of jurisdiction, and an appellate court properly

considers all of the plaintiff’s pleadings filed prior to the hearing on the

defendant’s motion.45 In this lawsuit, Appellant does not seem to complain about

the sufficiency of Plaintiff’s pleadings. To the extent that any such complaint may

be alleged by Appellant , Plaintiff respectfully suggests that Plaintiff’s pleadings

are more than adequate to support this Court’s exercise of jurisdiction over

Appellant .


       2.      Legal Authority in Support of a Court’s Exercise of Jurisdiction --
     Of course, there is a wealth of judicial precedent to aid this Court in

consideration of the present issues. In American Type Culture Collection, Inc. v.

Marshall Coleman,46 the Texas Supreme Court provides a keen summary of some

of the threshold issues. The Texas Supreme Court is certainly capable of speaking

for itself, and the Court’s opinion provides guidance.


       “Texas courts may assert personal jurisdiction over a
       nonresident defendant only if the Texas long-arm statute
       authorizes jurisdiction and the exercise of jurisdiction is
       consistent with federal and state due process standards.”
       Guardian Royal Exchange Assurance, Ltd. v. English China
       Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). The Texas
44
   Smith Toyota, at p. 746. The Thirteenth Court of Appeals (Texas) considered all pleadings
filed prior to the time of the hearing on special appearance.
45
   The courts favor contemplation of all of the plaintiff’s pleadings (so long as the pleadings are
filed prior to the hearing on the defendant’s special appearance). See Smith Toyota, at p. 746.
46
   83 S.W.3d 801 (Tex. 2002), cert. denied, 537 U.S. 1191 (2003).

                                                19
long-arm statute reaches “as far as the federal constitutional
requirements of due process will allow.” Id. Thus, the Texas
long-arm statute requirements are satisfied if exercising
jurisdiction comports with federal due process limitations. Id.

“Under the Due Process Clause of the Fourteenth Amendment,
jurisdiction is proper if a nonresident defendant established
“minimum contacts” with Texas and maintenance of the suit
does not offend “traditional notions of fair play and substantial
justice.” International Shoe Co. v. Washington, 326 U.S. 310,
316 (1940). The purpose of the minimum-contacts analysis is
to protect the defendant from being haled into court when its
relationship with Texas is too attenuated to support
jurisdiction. Schlobohm v. Shapiro, 784 S.W.2d 355, 357
(Tex. 1990). Accordingly, we focus upon the defendant’s
activities and expectations in deciding whether it is proper to
call it before a Texas court. Id.”

“The minimum-contacts analysis requires that a defendant
“purposefully avail” itself of the privilege of conducting
activities within Texas, thus invoking the benefits and
protections of our laws. Burger King Corp. v.Rudzewicz, 471
U.S. 462, 475 (1985). The defendant’s activities, whether they
consist of direct acts within Texas or conduct outside Texas,
must justify a conclusion that the defendant could reasonably
anticipate being called into a Texas court. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). . . .
It is the quality and nature of the defendant’s contacts, rather
than their number, that is important to the minimum-contacts
analysis. Id. at 230      n. 11.”

“A defendant’s contacts with a forum can give rise to either
specific or general jurisdiction. For a court to exercise specific
jurisdiction over a nonresident defendant, two requirements
must be met: (1) the defendant’s contacts with the forum must
be purposeful, and (2) the cause of action must arise from or
relate to those contacts. Id. at 227. General jurisdiction . . .,
on the other hand, allows a forum to exercise jurisdiction over
a defendant even if the cause of action did not arise from or
relate to a defendant’s contacts with the forum. Id. at 228.

                                   20
      General jurisdiction is present when a defendant’s contacts
      with a forum are “continuous and systematic,” a more
      demanding minimum-contacts analysis than specific
      jurisdiction. Id. Coleman, at pp. 803-805.

There is no reason for the undersigned to speak on those thresholds and standards

where Texas’ high court has already spoken so clearly. If a defendant purposely

avails itself of benefits of a forum, it only makes sense that such defendant should

be amenable to the process of that forum. The minimum contacts analysis is less

strict when facts support a trial court’s exercise of specific jurisdiction (as

compared to a ‘general jurisdiction’ analysis). In the present case, an application

of the facts (evidence) to the law demonstrates that this Court has both specific and

general jurisdiction over Appellant .

      Additional case law provides further guidance:

      “When a corporation “purposefully avails itself of the privilege
      of conducting activities within the forum State,” Hanson v.
      Denckla, 357 U.S. [235] at 254, 78 S.Ct. [1228] at 1240 [2
      L.Ed.2d 1283 (1958)], it has clear notice that it is subject to
      suit there, and can act to alleviate the risk of burdensome
      litigation by procuring insurance, passing the expected costs on
      to customers, or, if the risks are too great, severing its
      connection with the State. Hence if the sale of a product of a
      manufacturer or distributor such as Audi or Volkswagen is not
      simply an isolated occurrence, but arises from the efforts of the
      manufacturer or distributor to serve directly or indirectly, the
      market for its product in other States, it is not unreasonable to
      subject it to suit in one of those States if its allegedly defective
      merchandise has been the source of injury to its owner or to
      others.” Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199,
      203 (Tex. 1985).


                                          21
        “. . . a defendant has “purposefully availed itself of the
        privilege of conducting activities” in the forum state if the non-
        resident defendant sells its product to an independent
        distributor and “there is a reasonable expectation that the
        product will enter the forum state.” Oswalt v. Scripto, Inc.,
        616 F.2d 191 (5th Cir. 1980).

The Texas Supreme Court and United States Fifth Circuit opinions fall in line with

each other (and further fall in line with the United States Supreme Court opinions

relating to a court’s exercise of jurisdiction). The thresholds / parameters for this

Court’s exercise of jurisdiction are quite clear.

      With definitive law and powerful evidence, fewer words may be exchanged in

argument. On the other hand, the undersigned is professionally obligated to make

argument on behalf of his client.          As stated in Appellant ’s brief:

        “The plaintiff has the initial burden to “plead sufficient
        allegations to confer jurisdiction.” Id. (citing American Type
        Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807
        (Tex.2002)). Once that burden is met, the defendant seeking to
        avoid the court’s jurisdiction takes on the burden to negate “all
        potential bases for jurisdiction pled by the plaintiff.” Id.47

Plaintiff has properly pleaded facts in support of this Court’s exercise of

jurisdiction over Appellant . As such, it is now Appellant ’s burden to negate all

possible bases for this Court’s exercise of jurisdiction.                   Appellant      -- for the

reasons set forth herein -- cannot negate all possible bases for this Court’s exercise



47
  Appellant ’s pleading is referencing Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333,
337 (Tex. 2009)(citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002).


                                                  22
of jurisdiction. To the contrary, all of the law and all of the facts bode in favor of

this Court’s exercise of jurisdiction over Appellant .


          3.      This Court has Specific Jurisdiction over Appellant --
        In Coleman, the high Court has made clear that for a court to exercise specific

jurisdiction over a non-resident defendant (such as Appellant ), the claimant must

present evidence that:

          “(1) the defendant’s contacts with the forum must be purposeful, and
           (2) the cause of action must arise from or relate to those contacts.”

In this case, Appellant has a huge number of high quality purposeful contacts with

the State of Texas. Mr. Oxley, Chief Financial Officer, Secretary, and Treasurer

for Appellant since 2012, has testified that these contacts are “purposeful” (and

have been purposeful during his eight (8) year tenure with the company). Such

contacts with the State of Texas include, but are not limited to, boat shows in the

State of Texas and internet promotions in contemplation of Appellant ’s clear

desire to sell boats to Texans (one of its largest markets in the United States).48

Defendant Dietz, on information and belief, purchased his MasterCraft boat

because of Appellant ’s purposeful contacts (internet and/or                boat show

promotions) with the State of Texas (and its customers such as Defendant Dietz).

        Appellant ’s annual multi-million dollar advertising investment worked.

Appellant ’s efforts caused its product (its boat) to be purchased, and brought to the

48
     See deposition of Jay Povlin, (CR 1:218-220)


                                                    23
State of Texas -- but for which this incident made the subject of this lawsuit would

not have occurred. Clearly, the cause of action filed on behalf of Plaintiff ‘relates

to Appellant ’s contacts’ with the State of Texas.

        Judicial authority supports this Court’s exercise of specific jurisdiction over

Appellant . The Appellant has many purposeful contacts with the State of Texas

(as noted herein). These contacts with the State of Texas were (and continue to be)

purposeful. Some of these contacts include boat shows and internet promotional

materials -- and these specific efforts by Appellant caused the purchase of the boat

made the subject of this lawsuit (on information and belief).             Appellant ’s

purposeful contacts with the State of Texas “relate” to Plaintiff’s cause of action.

Appellant has certainly not carried its burden to negate this Court’s exercise of

jurisdiction. Thus, this Court is must properly exercise its power and authority

over the parties made the subject of this lawsuit (including Appellant ).


          4.      This Court has General Jurisdiction over Appellant --
        In this case, this Court should also exercise its powers of general jurisdiction

over Appellant . General jurisdiction is present when a defendant’s contacts with a

forum are “continuous and systematic.”49 In this case, Appellant ’s contacts with

the State of Texas are continuous and systematic. By way of example, but without




49
     See Coleman, at pp. 803-805.


                                            24
limitation, Appellant very deliberately works and invests for its company’s sales

and success in Texas markets. Appellant :

1.   purposefully contracts with Texas companies to be Appellant ’s authorized

     dealerships in Texas;

2.   purposefully enters into these authorized dealership contracts with Texas

     companies, performable in Texas, which are expressly (by agreement with

     Appellant ) governed by Texas law;

3.   purposefully enters into other promotional contracts with Texas promotional

     companies that are performable in Texas;

4.   purposefully contracts with its Texas customers (Texas MasterCraft boat

     owners) to provide warranty services (all these contracts performable in

     Texas);

5.   purposefully agrees to perform recall services with its Texas customers (Texas

     MasterCraft boat owners) -- such recall services performable in Texas;

6.   purposefully pays money to the State of Texas (its franchise tax payments) for

     the privilege of doing its business in the State of Texas;

7.   purposefully spends millions of dollars to advertise and promote, including a

     focus on Texas with some of its selection of trade magazines, boat shows,

     Texas events, and more (especially in light of the fact that Texas is Appellant

     ’s largest market (or one of them)) to sell boats to Texans;


                                          25
8.   contracts with Texas companies (its authorized dealerships) to be listed as a

     named insured on insurance contracts performable in Texas (for claims filed

     in Texas);

9.   pays for customer satisfaction surveys of its Texas customers;

10. indemnifies its authorized Texas dealerships in Texas;

11. negotiates and resolves claims / disputes, in Texas, with its authorized Texas

     dealerships;

12. strategically allocates its Texas markets to specific Texas companies for the

     sale of MasterCraft boats in Texas;

13. controls 100% of all advertising content displayed for Appellant in Texas;

14. sends its regional sales and marketing manager to Texas approximately ten

     (10) to twelve (12) times per year to promote sales in Texas;

15. trains sales persons to sale its boats in Texas;

16. trains repair persons to make repairs of its boats in Texas;

17. systematically reimburses its employees for sales related activities in Texas

     (hotel costs, rent-a-car costs, dining costs, etc.);

18. controls its authorized Texas dealerships’ inventory on the floor, advertising,

     days and hours of operation, and more;




                                            26
19. markets in Texas by way of internet, boat shows, events, billboards, radio, and

     published advertising materials (some of which is directly delivered, and some

     of which flows through the authorized Texas dealerships);

20. and more (see details of evidence listed above).

“The purpose of the minimum-contacts analysis is to protect the defendant from

being haled into court when its relationship with Texas is too attenuated to support

jurisdiction.” Schlobohm v. Shapiro, 784 S.W.2d 355, 357 (Tex. 1990). Appellant

’s relationship with the State of Texas cannot be said to be “too attenuated to

support jurisdiction.” “The minimum-contacts analysis requires that a defendant

“purposefully avail” itself of the privilege of conducting activities within Texas,

thus invoking the benefits and protections of our laws.” Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475 (1985). The Appellant has “purposefully avail[ed]”

itself of the privilege of conducting business in Texas -- and has, by its many

contracts with Texas companies, invoked the benefits and protections of Texas

laws.   “When a corporation “purposefully avails itself of the privilege of

conducting activities within the forum State,” Hanson v. Denckla, 357 U.S. [235]

at 254, 78 S.Ct. [1228] at 1240 [2 L.Ed.2d 1283 (1958)], it has clear notice that it is

subject to suit . . . .” In this case, Appellant has been doing business in the State of

Texas for years, and is on clear notice that it is subject to the laws of the State of

Texas. , and can act to alleviate


                                          27
       “Hence if the sale of a product of a manufacturer or distributor
       such as Audi or Volkswagen is not simply an isolated
       occurrence, but arises from the efforts of the manufacturer or
       distributor to serve directly or indirectly, the market for its
       product in other States, it is not unreasonable to subject it to suit
       in one of those States if its allegedly defective merchandise has
       been the source of injury to its owner or to others.” Kawasaki
       Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985).

       “. . . a defendant has “purposefully availed itself of the privilege
       of conducting activities” in the forum state if the non-resident
       defendant sells its product to an independent distributor and
       “there is a reasonableexpectation that the product will enter the
       forum state.” Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.
       1980).

In this case, Appellant ’s sale of boats into Texas is “not simply an isolated

occurrence, but arises from [MasterCraft’s] efforts . . . to serve directly or

indirectly, the market for its product . . . .” As such, Appellant is definitely subject

to the laws of the State of Texas, and this Court’s jurisdiction.

      The Appellant has clearly failed in its burden to negate all possible bases for

this Court’s exercise of jurisdiction. As such, this Court has jurisdiction over

Appellant .

      In this case, there is substantial evidence to prove that Appellant is pushing

its   products in Texas (and here to stay in Texas).          As noted herein above,

Appellant contracts with its authorized Texas dealerships in Texas, sells hundreds

of boats per year to these Texas dealerships (which are Texas companies), spends

millions of dollars per year to market their boats (in Texas, and other states),


                                           28
contracts and pays warranty claims in Texas, contracts and pays recall claims in

Texas, sends its employees to Texas on a regular and frequent schedule, pays taxes

to the State of Texas to do business in Texas, contracts to assure applicability of

insurance contracts to claims made in Texas, trains sales persons to sell its

products in Texas, trains repair persons to repair its products in Texas, and more

and more in the State of Texas. Appellant is subject to the laws of the State of

Texas (and has agreed to be subject to such laws by the contracts it signs), and thus

is subject to this Court’s exercise of jurisdiction.


              THIS COURT’S EXERCISE OF JURISDICTION DOES NOT
                 OFFEND TRADITIONAL NOTIONS OF FAIR PLAY


     Even if a non-resident defendant has established minimum contacts within the

forum state (e.g., Texas), the non-resident defendant should not be hailed into

Texas court if to do so would violate notions of “fair play and substantial

justice.”50    As such, this court may consider various factors when evaluating

whether notions of “fair plan and substantial justice” are offended. The court may

consider: (1) the burden upon the defendant; (2) the interest of the forum state in

adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and

effective relief; (4) the interstate judicial system’s interest in obtaining the most


50
  Asahi Metal industiral Company, Ltd. v. Superior Court of California, Solano County, 480
U.S. 102, 113-115 (1987); Burger King, 471 U.S. at 476; Guardian Royal, 815 S.W.2d at 231.

                                            29
efficient resolution of controversies; and (5) the shared interests of the several

states in furthering substantial social policies.51


       1.     The burden upon Appellant --
       At the risk of stating the obvious: If Appellant can sells boat to Texans, sell

boats to Texas companies (its authorized Texas dealerships), advertise in Texas,

honor warranty and recall claims in Texas, enter into contracts in Texas that are

performable in Texas, indemnify Texas companies for events in Texas, train sales

persons to sell boats in Texas, train repair persons to repair boats in Texas, send

their employees and managers to sell its products in Texas, and make franchise tax

payments to the State of Texas -- then Appellant should not even be heard to

suggest that litigating in Texas would be a burden. It would be disingenuous for

Appellant to reep the rewards of the business in Texas, and then duck for cover

when a claim gets filed in Texas. There is no more burden upon Appellant to

litigate in Texas than for Appellant to conduct its business in Texas (which it has

done for years). Appellant already has attorneys of its choosing in Houston,

Texas, and it is no burden for such a milti-national, multi-million dollar company

to appear in a Texas court.




51
  World-Wide Volkswagen, 444 U.S. at 292; Burger King, 471 U.S. at 477; Asahi, 480 U.S. at
113.

                                            30
      2.     The interest of Texas in Adjudicating this Dispute in Texas --
      The State of Texas has an interest in supporting the legal rights of those

residents of the State of Texas. This has long been the public policy supported by

our legislature, and by our judicial system. Texas residents (such as Rebecca

Chambers and John Dietz) have a right to expect that controversies arising in

Texas will be adjudicated in their home courts (not in a jurisdiction or venue of

another).


      3.     Plaintiff’s Interest in Obtaining Convenient / Effiective Relef --
      Plaintiff now has this claim filed against Appellant and Defendant Dietz. In

its present posture, this multi-party dispute will be resolved in Nueces County,

Texas (the location where the incident occurred). This makes sense. If Appellant

’s special appearance is granted, then Plaintiff’s claims against Defendant Dietz

would be adjudicated in Texas -- but Plaintiff’s claims against Appellant would be

adjudicated in Tennessee.

      Plaintiff’s legitimate interests to have the now-pending disputes resolved are

served by keeping this lawsuit in Nueces County, Texas. It is more convenient and

effeicient to the parties (certainly to Plaintiff and Defendant Deitz), and much more

convenient and efficient than trying one case in Texas and another case in

Tennessee. Thus, this factor bodes in favor of keeping this case in Nueces County,

Texas (also).



                                         31
4.    Interstate Judicial System’s Interest in Obtaining Efficient Resolution
     Both Texas and Tennessee courts must support a process that allows for the

efficient resolution of all now-pending claims. The State of Tennessee cannot

exercise its jurisdiction over Defendant Dietz. Both Texas and Tennessee courts

would likely agree that Texas is the most convenient forum that may allow a

comprehensive / efficient adjudication of the disputes made the subject of this

lawsuit. The incident occurred in Texas. Many of the witnesses reside in Texas.

The law enforcement personnel who investigated the incident are in Texas. The

doctors attending to Rebecca Chambers are in Texas. Medical records are in

Texas. Far and away, both Texas and Tennessee courts should agree that this

dispute can most efficiently be resolved in the State of Texas.


      5.     Shared Interests of States to Further Social Policies --
      Both Texas and Tennessee courts have a shared interest in advancing social

policies for their residents. Only Texas courts have this relationship to Plaintiff

and Defendant Dietz. The Texas courts have an interest in deciding disputes that

arise between Texas residents.

      All factors strongly support the conclusion that this Court’s exercise of its

jurisdictional powers over Appellant would not ‘offend traditional notions of fair

play and substantial justice.’    The incident made the subject of this lawsuit

occurred in Nueces County, Texas. The claimant in this case is a Texas resident.



                                         32
One of the defendants in this lawsuit is a Texas resident. All parties have -- for

many years -- agreed to subject themselves to the laws of the State of Texas. This

case needs to stay in Texas (for all of the reasons set forth herein above).


                                       CONCLUSION
      For the reasons set forth herein above, this Court may properly exercise its

powers of specific jurisdiction and general jurisdiction over Appellant . This

Appellant has clearly been engaged in business in the State of Texas (for many

years) -- and any pretense that Texas law somehow allows Appellant to reap the

benefits of doing business in Texas while avoiding any consequences is flawed.

The Appellant is subject to our Texas courts’ rule of law.

      WHEREFORE, PREEMISES CONSIDERED, Plaintiff prays that Appellant

’s special appearance be denied, that this court maintian this case on its docket, that

Plaintiff be granted such other and further relief to which Plaintiff may be justly

entited (both at law and in equity), for for such other reief as is just and right.



                                         Respectfully submitted,


                                         Law Office of Douglas A. Allison
                                         403 N. Tancahua
                                         Corpus Christi, Texas 78401
                                         Phone: 361/888-6002
                                         Fax: 361/888-6651




                                           33
                                By:   /s/ Douglas A. Allison
                                      Douglas A. Allison
                                      State Bar No. 01083500




                            CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing has been
forwarded on this 26th day of April, 2016, via Facsimile to the following counsel of
record, in accordance to Texas Rule of Appellate Procedure 9.5:

Via Facsimile: (713) 953-9470
Mr. Michael J. Wray
LEGGE, FARROW, KIMMITT, MCGRATH & BROWN, L.L.P.
5151 San Felipe, Suite 400
Houston, Texas 77056
ATTORNEY FOR APPELLANT
MASTERCRAFT BOAT COMPANY, LLC

Via Facsimile: (210) 340-9888
Mr. Larry J. Goldman
GOLDMAN & ASSOCIATES PLLC
10100 Reunion Place, Suite 800
San Antonio, Texas 78216
ATTORNEY FOR DEFENDANT
JOHN DIETZ
                                             /s/Douglas A. Allison
                                             Douglas A. Allison




                                        34
                        CERTIFICATE OF COMPLIANCE


     Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(B)(3), I certify that

this document contains 7721 words.

                                            /s/Douglas A. Allison
                                            Douglas A. Allison




                                       35
