                                                                                        ACCEPTED
                                                                                    03-15-00497-CV
                                                                                            8018196
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                              11/30/2015 3:54:45 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                           NO. 03-15-00497-CV

                                                       FILED IN
                                                3rd COURT OF APPEALS
                      IN THE COURT OF APPEALS        AUSTIN, TEXAS
                FOR   THE THIRD DISTRICT OF TEXAS,
                                                11/30/2015 3:54:45 PM
                          AT AUSTIN, TEXAS          JEFFREY D. KYLE
                                                         Clerk



                            KAREN E. LANDA,
                               Appellant

                                      v.

                           CHARLES L. FARRIS,
                               Appellee.

        On Appeal from the 98th Judicial District Court, Travis County
                     Honorable Judge Triana Presiding


                    REPLY BRIEF OF APPELLANT


HANCE SCARBOROUGH LLP
Terry L. Scarborough
State Bar No. 17716000
TScarborough@hslawmail.com
V. Blayre Pena
State Bar No. 24050372
BPena@hslawmail.com
400 W. 15th Street, Ste. 950
Austin, TX 78701
Telephone: (512) 479-8888
Facsimile: (512) 482-6891
ATTORNEYS FOR APPELLANT
KAREN E. LANDA

                       ORAL ARGUMENT REQUESTED
                            I.      TABLE OF CONTENTS

I.     TABLE OF CONTENTS ……………………………………………….…..ii

II.    INDEX OF AUTHORITIES …………………………………………...iii, iv

III.   INTRODUCTION ………………………………………………….……….1

IV.    ARGUMENT AND AUTHORITIES……...………………………..………1

       A.   Landa preserved error as to the trial court’s ruling on whether Farris
            met his initial burden to bring her under the Texas long-arm
            statute.………………………………………………………………...1
       B.   Landa did not waive the trial court’s error as to finding that it had
            specific jurisdiction over her (Issue2) ….….........................................4
       C.   There was not sufficient evidence in the record to support the trial
            court’s ruling that it had specific jurisdiction over Landa……………7
            i.     Meeting in Dallas………………………………………………8
            ii.    Subsequent communications between the parties……………...9
            iii. Striking Farris’ name from the deed………………………….10
            iv.    The May 2012 check…………………………………………10
            v.     Farris Being a Resident of Texas……………………………..11
       D.   Landa did not waive the trial court’s error as to finding that it had
            general jurisdiction over her (Issue 3)……………………………….12
       E.   There is not legally sufficient evidence to support a finding of general
            jurisdiction, and Farris completely ignored the controlling precedent
            in his response……………………………………………………….13

V.     CONCLUSION…………………………………………………………….15

CERTIFICATE OF COMPLIANCE……………………………………………...17

CERTIFICATE OF SERVICE …………………………………………..….……18




                                              ii
	
                                      II.       INDEX OF AUTHORITIES


Cases
Bullock v. Am. Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet.
 denied) ....................................................................................................................5

C & H Transportation Co. v. Jensen & Reynolds Construction Co., 719 F.2d 1267,
  1270 (5th Cir. 1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930 (1984) ..........11

Daimler AG v. Bauman, 2014 132 S. Ct. 746, 751 (2014) ......................................13

Ennis v. Loiseau, 164 S.W.3d 698, 704-05 (Tex. App.—Austin 2005, no pet.) .......2

Flores v. Star Cab Coop. Ass’n, 2008 Tex. App. LEXIS 6582, *7 (Tex. App.—
  Amarillo 2008, pet. denied) (mem. op.) .................................................................5

Freudensprung v. Offshore Tech. Servs., 379 F.3d 327, 344 (5th Cir. 2004) ...........9

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011).
  ..............................................................................................................................13

Haddad v. ISI Automation Int’l, Inc., 2010 Tex. App. LEXIS 3151 (Tex. App.—
 San Antonio 2010, no pet.) ...................................................................................12

Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986)................. 9, 11

Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 809-10 (Tex. App.—Fort Worth
  1994, writ denied) .................................................................................................14

Kastner v. Gutter Mgmt., 2010 Tex. App. LEXIS 8868, *30 (Tex. App.—Houston
 [14th Dist.] 2010, pet. denied) (mem. op.) .............................................................5

KC Smash 01, LLC v. Gerdes, Hendrichson, Ltd., L.L.P., 384 S.W.3d 389, 394
 (Tex. App.—Dallas 2012, no pet.) ............................................................. 8, 11,12

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 787 (Tex. 2005) ..8,
 11

Moni Pulo, Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170 (Tex. App—Houston
 [14th Dist.] 2003, pet. denied) ..............................................................................15

Patterson v. Dietze, Inc., 764 F.2d 1145, 1147 (5th Cir. 1985) ..............................11
                                                               iii
	
Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300,
  323, 324 (Tex. App.—Austin 2006, pet. denied) ...................................................5




                                                 iv
	
                                                                III.   INTRODUCTION

                 The Trial Court’s order denying Landa’s special appearance should be

     reversed for the reasons stated in Appellant’s brief, which Appellee failed to

     adequately rebut for multiple reasons. First, Landa has not waived any errors. As

     to Farris’ argument regarding having pleaded sufficient facts to bring Landa under

     the Texas Long-Arm Statute, Landa stands on her original Brief, which sets forth

     in detail why the trial court erred in finding Farris’ pleadings sufficient.1

                 As to the substantive arguments made by Farris in his Response Brief

     regarding Issues 2 and 3, Farris pointed to no evidence supporting the trial court’s

     ruling that it has either specific or general jurisdiction over Landa. Finally, as to

     general jurisdiction, Farris completely ignored the controlling precedent which

     clearly established that the trial court did not have general jurisdiction over Landa.

                                           IV.          ARGUMENT AND AUTHORITIES

A.         Landa preserved error as to the trial court’s ruling on whether Farris met
           his initial burden to bring her under the Texas long-arm statute.

                 Farris contended that Landa waived any error as to the Trial Court’s ruling

     on the sufficiency of the jurisdictional allegations in his pleading.2           “As a

     prerequisite to presenting a complaint for appellate review, the record must show,

     that 1) the complaint was made to the trial court by a timely request, objection, or

     																																																								
     1
        Appellant’s Brief pp. 8-10.
     2
        Appellee’s Response Brief p. 19.
                                                                         1
motion that A) stated the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the

complaint . . . and 2) the trial court ruled on the request, objection, or motion,

either expressly or implicitly. . . .” Tex. R. App. P. 33.1(a). The record in this case

shows that Landa met all of these prerequisites.

            First, the proper method to challenge jurisdictional pleadings is with a

special appearance. Ennis v. Loiseau, 164 S.W.3d 698, 704-05 (Tex. App.—Austin

2005, no pet.) (“If a defendant wishes to challenge jurisdictional pleadings on the

ground that such party or property is not amenable to process issued by the courts

of this State, then his proper tool is a special appearance.”). Farris conceded this

point in his response.3

          In this case, Landa filed a Special Appearance challenging the jurisdictional

allegations made by Farris, thus making the complaint to the trial court, wherein

she stated that she was “not amenable to process issued by the courts of Texas” and

then listed multiple reasons why the trial court did not have personal jurisdiction

over her, all of which were challenges to Farris’ jurisdictional allegations.4

          Landa also raised this issue in the hearing on this matter. Early in the

hearing, counsel for Landa had this exchange with the Trial Court:



																																																								
3
   Appellee’s Response Brief pp. 20-21.
4
   CR pp. 9-12.
                                                           2
	
Mr. Scarborough:   All right. Your Honor, as Mr. Cronfel and I have
                   discussed in this case, the burden – initial burden is on
                   him to plead sufficient facts. The Texas Supreme
                   Court in the Kelly case in 2010 says, if – and that’s a
                   determination for the Court. If he has not and we’ve
                   proved that she is – the defendant is a resident of
                   another state, which she is, in Iowa, that that’s the end
                   of the case. Now, what I’ve told Mr. Cronfel is this:
                   I’ve assumed that the Court would either find that the
                   pleadings are sufficient, or would carry that along,
                   and that the burden immediately shifts to the
                   defendant to prove and negate the facts of the case. So
                   I want to make a short opening statement before we
                   go any further.
The Court:         Are you okay with that, Mr. Ochoa-Cronfel?
Mr. Ochoa-Cronfel: Yes, ma’am.
The Court:         Okay. Go ahead.5

             The parties then proceeded with opening statements, after which Mr. Ochoa-

Cronfel specifically asked for a ruling on the issue:

Mr. Ochoa-Cronfel: Your honor, one housekeeping matter: I’m assuming,
                   because we’re proceeding in this manner, that the
                   Court is – has taken the position that our pleadings
                   meet the initial burden?
The Court:         Correct.
Mr. Ochoa-Cronfel: Correct. Thank you very much, Your Honor.
The Court:         I mean, I think that Mr. Scarborough pretty much
                   granted that.
Mr. Scarborough: Actually, what I said was I assume the Court would
                   either grant it or carry it along. And as I’ve not hear
                   on the record a ruling on that, so I’m assuming you’re
                   carrying it.
The Court:         Okay. I’ll carry it on. But I’m assuming that you’ve
                   met that.6

																																																								
5
   RR pp. 8-9.
6
   RR pp. 31-32.
                                                           3
	
      Thus, Landa not only raised this issue in her Special Appearance, but also

during the hearing. Counsel for Farris clearly recognized that this issue had been

presented to the Trial Court, because he asked if it had been ruled on. To now

argue to the contrary is disingenuous.

      Additionally, even if the record did not reflect an express ruling by the Trial

Court, error was also preserved by the implicit ruling of the Trial Court. Tex. R.

App. P. 33.1(a)(2)(A). In this instance, in denying Landa’s Special Appearance the

Trial Court implicitly ruled that Farris met his burden because if the Trial Court

had not believed it was sufficiently pleaded, the fact that Landa is a not a Texas

resident would have defeated personal jurisdiction.

      For these reasons, Landa did not waive error as to the sufficiency of Farris’

pleadings. Because Farris failed to meet his initial burden, as set forth in Landa’s

Initial Brief, her special appearance should have been granted. The Trial Court

committed reversible error in failing to do so.

B.    Landa did not waive the trial court’s error as to finding that it had
      specific jurisdiction over her (Issue 2).

      As a red herring to shift the focus away from the merits, Farris argued that

Landa waived this point of error because it was not adequately briefed as required

by Tex. R. App. P. 38.1(h). Rule 38.1(h) states that “The brief must contain a

succinct, clear, and accurate statement of the arguments made in the body of the



                                          4
	
brief. This summary must not merely repeat the issues or points presented for

review.” In construing this Rule, the Austin Court of Appeals opined that:

      The standard for whether an issue has been adequately briefed should
      not be rigid or draconian. Under certain circumstances, a single case
      may prove to be appropriate citations to authorities and to the record.
      Whether an issue has been adequately briefed depends on the
      complexity of the issue and the extent courts have addressed the issue.

Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300,

324 (Tex. App.—Austin 2006, pet. denied) (quotations and citations omitted).

Further, this Rule must be applied in conjunction with Tex. R. App. P. 38.9, which

requires the Court to construe all briefs liberally. See, e.g., Flores v. Star Cab

Coop. Ass’n, 2008 Tex. App. LEXIS 6582, *7 (Tex. App.—Amarillo 2008, pet.

denied) (mem. op.).

      In looking at cases where Rule 38.1(h) has been invoked, the common

thread is often that the brief in question contained little to no citations to authority,

no citations to the record, and little to no substantive analysis of the issues. See,

e.g., Bullock v. Am. Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012,

pet. denied) (Appellant failed to cite legal authority or provide substantive analysis

of the legal issue presented); Kastner v. Gutter Mgmt., 2010 Tex. App. LEXIS

8868, *30 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (mem. op.)

(Appellant did not provide legal authority, citations to the record, or analysis in

support of his argument); Save Our Springs Alliance, 198 S.W.3d at 323 (“SOS'


                                           5
	
brief contains a single paragraph concerning the separation of powers argument,

fails to cite any standards, fails to apply the separation of powers doctrine to the

facts of this case, includes no citation to the record, and cites only one

case, Corzelius, relevant to the separation of powers doctrine.”).

            Landa’s Brief is more than adequate in briefing this point.       First, the

standard of review was set forth clearly and succinctly with citations to the

appropriate authority.7 Next, Landa’s Brief devoted six pages to briefing and

analyzing why it was error for the trial court to have found that it had specific

jurisdiction over Landa and included citations to ten different cases as authority.8

            Landa’s Brief also contained ample citations to the record in support of her

argument, contrary to Farris’ argument that Landa failed to “cite to or analyze any

of the evidence considered by the trial court that would tend to support its implied

findings of fact” and that she only provided “three (3) citations to the reporter’s

record which ostensibly support her desired interpretation of the evidence, as

opposed to addressing how the evidence fail[ed] to support the trial court’s implied

findings.”9 Specifically, Landa’s Statement of the Facts, which served as the

factual authority for Landa’s Brief, was extensively cited, and contained thirty-nine




																																																								
7
   Appellant’s Brief pp. 7-8.
8
   Id., at pp. 10-15.
9
   Appellee’s Response Brief p. 24.
                                                           6
	
citations to either the Reporter’s Record or the Clerk’s record.10 Relying on those

citations to the records, Landa’s Brief analyzed and explained how the evidence

presented was not legally sufficient to support the trial court’s finding of specific

jurisdiction. Accordingly, Landa adequately briefed her argument that the trial

court committed reversible error in holding that it had specific jurisdiction over

Landa, and this issue is ripe for appellate review.

C.        There was not sufficient evidence in the record to support the trial
          court’s ruling that it had specific jurisdiction over Landa.

          In arguing that the evidence supported the court’s finding that it had specific

jurisdiction, Farris pointed to numerous “facts” that he believed supported the trial

court’s decision.11                 Without addressing each citation or point of evidence

individually, they can generally be sorted into the following categories: (1) the

parties’ meeting in Dallas; (2) subsequent communications between the parties

concerning the transaction; (3) the striking of Farris’ name from the deed; (4)

Landa giving Farris a check in May, 2012; and (5) that Farris lived in Texas during

all times relevant to this matter. However, none of these facts establish that Landa

purposefully availed herself of conducting business in Texas.




																																																								
10
    Appellant’s Brief pp. 1-6.
11
    Appellee’s Response Brief pp. 28-34.
                                                           7
	
             i.            Meeting in Dallas

             First, at to the meeting in Dallas, it was Landa’s testimony that Farris

originally wanted to meet in Iowa, but upon learning that he would have to stay in

a hotel, Farris suggested that they meet in Dallas instead.12 At no point during his

testimony did Farris contradict that it was his idea to meet in Dallas. Thus, the

meeting in Dallas was a result of Farris’ actions, and was not an instance of Landa

trying to “seek some benefit, advantage, or profit” by availing herself of Texas.

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 787 (Tex. 2005).

             Additionally, it was Farris’ testimony that 1) the purpose of the meeting was

for the parties to spend time together, 2) there was no agenda, and 3) the focus was

just to get together and enjoy each other’s company and have a good time.13 Even

had the purpose of the meeting been exclusively to discuss the money, it would not

have been an attempt by Landa to avail herself of the jurisdiction, as the benefit

being sought concerned purchasing a house in Iowa. See KC Smash 01, LLC v.

Gerdes, Hendrichson, Ltd., L.L.P., 384 S.W.3d 389, 394 (Tex. App.—Dallas 2012,

no pet.) (“Appellant’s ‘availing’ was for the purpose of building its restaurants in

Kansas, not for reaping a profit or obtaining a benefit or advantage in Texas.”).




																																																								
12
    RR pp. 49-50.
13
    RR pp. 115-17.
                                                           8
	
          Finally, as set forth in Landa’s Brief, as a matter of law, no contract was

formed while the parties were in Dallas.14 Thus, nothing in the evidence regarding

the meeting in Dallas could support a finding of purposeful availment by Landa.

          ii.        Subsequent communications between the parties

          Farris also argued that the parties’ subsequent communications about the

money and transaction after the house had been purchased supported the trial

court’s decision.15 For example, Farris asked Landa to send him a copy of the

closing documents.16 Farris is attempting to use this as an example of Landa

purposefully availing herself of the forum.17 He also cited to other instances of the

money coming up in conversation between the parties,18 although the record is

silent as to who initiated most of the communications. Regardless of who initiated

the conversations, numerous courts have held that engaging in communications

related to the execution and performance of a contract, and the existence of a

contract between a nonresident and resident of a forum, is insufficient to establish

the minimum contacts necessary to support the exercise of specific jurisdiction.

See Freudensprung v. Offshore Tech. Servs., 379 F.3d 327, 344 (5th Cir. 2004);

See also, e.g., Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986)

(finding no specific jurisdiction over nonresident defendant where nonresident
																																																								
14
    Appellant’s Brief pp. 14-15.
15
    Appellee’s Response Brief pp. 28-29.
16
    See, e.g., RR pp. 68 and 103-04.
17
    Appellee’s Response p. 28, n. 7.
18
    Id.
                                                           9
	
defendant entered into a contract with a Texas resident, sent an agreement and

checks to Texas, and engaged in extensive telephonic and written communications

with plaintiff in Texas). Accordingly, that there were communications between the

parties after the transaction does not constitute evidence of purposeful availment.

             iii.          Striking Farris’ name from the deed

             Farris further argued that the act of striking his name from the deed

somehow constituted an actionable tort in Texas, so as to convey specific

jurisdiction. First, there is no evidence that Landa had anything to do with the

striking of his name, and Farris even admitted that he had no knowledge of who

struck his name.19 Second, there is no evidence of who struck the name or where

they struck it. The implication, however, is that Farris’ name was struck in Iowa,

since the act occurred prior to him receiving the documents in Texas.20 As such,

there is no evidence that the action/tort occurred in Texas, and thus it cannot serve

as a basis for specific jurisdiction over Landa.

             iv.           The May 2012 check

             The fact that Landa paid Farris $15,000 has no bearing as to whether she

purposefully availed herself of doing business in Texas. First, the $15,000 check

was not a repayment to Farris.21 Second, as testified to by both Farris and Landa,


																																																								
19
    RR p. 120.
20
    RR pp. 54-56;
21
    RR p. 57.
                                                           10
	
the purpose of the trip during which the check was given to Farris was for a

completely unrelated purpose, that was, to attend a birthday party.22 Third, even if

Landa had flown to Texas expressly to pay Farris the check, and even if she

considered it a repayment, that action would not constitute purposeful availment.

See Holt Oil & Gas, 801 F.2d at 778 (“Given that the material performance

occurred in Oklahoma, the fact that Harvey mailed payments to Texas does not

weigh heavily in our determination.”); Patterson v. Dietze, Inc., 764 F.2d 1145,

1147 (5th Cir. 1985) (all material performance occurred in Mexico despite the

wiring of payments to Texas); C & H Transportation Co. v. Jensen & Reynolds

Construction Co., 719 F.2d 1267, 1270 (5th Cir. 1983), cert. denied, 466 U.S. 945,

104 S. Ct. 1930 (1984) (fact that payment mailed to Texas is hardly significant in

terms of purposeful availment).

             v.            Farris being a resident of Texas

             Farris also repeatedly argued that evidence of his “performance” in Texas

and that Landa knew he resided in Texas supported the trial court’s ruling.

However, Farris’ performance of his obligations is a unilateral action by him, not

Landa, and thus cannot be considered a contact by Landa with Texas.               See

Michiana, 168 S.W.3d at 787; KC Smash, 384 S.W.3d at 389; Haddad v. ISI

Automation Int’l, Inc., 2010 Tex. App. LEXIS 3151 (Tex. App.—San Antonio

																																																								
22
    RR pp. 57-58 and 108.
                                                           11
	
2010, no pet.) (mem. op.) (Designer’s performance of work in Texas for Mexican

client was designer’s contact, not client’s). Similarly, Landa’s knowledge that

Farris resided in Texas does not serve to make her amenable to jurisdiction in

Texas. See KC Smash, 384 S.W.3d at 389.

             What is important to take from all of this is that Farris’ primary argument for

specific jurisdiction rested on the mere fortuity that he happened to be a resident of

Texas, not on any example of Landa purposefully availing herself of the forum.

That is because there is no evidence in the record of Landa purposefully availing

herself, and thus there is no legally sufficient basis for the trial court’s finding of

specific jurisdiction.

D.             Landa did not waive the trial court’s error as to finding that it had
               general jurisdiction over her (Issue 3).

             As with her second point of error, Farris’ once again argued that Landa

waived this point of error because it was inadequately briefed. However, a review

of Landa’s Brief establishes that this point of error was more than adequately

briefed.

             First, the standard of review is set forth with proper citation.23 In briefing

this point, Landa devoted three pages of her Brief and cited to eight different

authorities supporting and analyzing her argument.24 Again, in arguing that this

																																																								
23
    Appellant’s Brief pp. 7-8.
24
    Appellant’s Brief pp. 16-18.
                                                           12
	
issue is inadequately briefed, Farris’ missed the point that the argument relied on

those citations contained in the Statement of Facts, as well as those in the

argument, in showing that there was legally insufficient evidence to support a

finding of general jurisdiction when applying the correct precedential law. As

such, Landa did not waive her claim that the trial court erred in finding general

jurisdiction, and it is ripe for appellate review.

E.           There is not legally sufficient evidence to support a finding of general
             jurisdiction, and Farris completely ignored the controlling precedent in
             his response.

             In arguing that the evidence supported the trial court’s finding of general

jurisdiction, Farris completely ignored the controlling law on the subject, instead

citing to older case law that has since been superseded by more recent rulings.

Specifically, as pointed out at both the hearing on this matter25 and in Landa’s

Brief,26 two recent cases from the Supreme Court of the United States have made it

clear that a finding of general jurisdiction is appropriate only in those instances

where a defendant’s affiliations are so constant and pervasive as to render it

essentially at home in the forum state. Daimler AG v. Bauman, 2014 132 S. Ct.

746, 751 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.

2846, 2851 (2011).                             Farris also ignored numerous other recent cases cited to by

Landa out of the Fifth Circuit, Southern District of Texas, and Corpus Christi
																																																								
25
    RR pp. 14 and 131-32.
26
    Appellant’s Brief pp. 16-17.
                                                                13
	
Court of Appeals following this precedent.27 Farris instead cited to older rulings

that were issued before Daimler and Goodyear in support of his argument.

          Even had he addressed the controlling cases, none of the evidence to which

he cited supports a finding of general jurisdiction. First, he pointed to the fact that

Landa lived and worked in Austin for many years and that she came back for brief

period from August 2013 to April 2014.28 That is not disputed. However, an eight

month period hardly constitutes systematic and continuous contact with Austin,

when taken in context with the fact that she lived in Iowa at the time Farris sent

Landa the money and filed the lawsuit, currently lives in Iowa, and has lived there

for the vast majority of the past five years.29

          Farris also pointed to the fact that Landa has a license with the Texas

Department of Insurance.30 Landa does maintain a nonresident insurance license in

Texas, but has not engaged in selling insurance in Texas since spring of 2014.31

Further, maintaining a non-resident license does not establish general jurisdiction

over a defendant. See Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 809-10

(Tex. App.—Fort Worth 1994, writ denied) (no general jurisdiction although

defendants maintained Texas insurance license because only 0.2% of defendants’

business was performed in Texas).
																																																								
27
    Appellant’s Brief p. 17.
28
    Appellee’s Response Brief pp. 36-37.
29
    RR pp. 37-39, 42 and 60
30
    Appellee’s Response Brief p. 37.
31
    RR p. 35 and 44-46.
                                                           14
	
           Farris also argued that Landa being a beneficiary of a martial trust located in

Texas supported a finding of general jurisdiction.32 However, the evidence showed

that the trust was created as a result of Landa’s deceased husband’s will, not by

her, and there was no evidence that Landa chose to have the trust located in

Texas.33 This does not constitute a systematic and continuous contact with the

forum. See Moni Pulo, Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170 (Tex.

App—Houston [14th Dist.] 2003, pet. denied).

           Ultimately, Farris pointed to no evidence which would be legally sufficient

to support a general jurisdiction finding by the trial court, particularly in light of

the Daimler and Goodyear cases, and the reason is because the record is absent of

such evidence. Instead, he pointed to the fact that Landa used to live in Austin,

and that since leaving over five years ago, she has only had a couple of intermittent

contacts with the forum. These isolated contacts do not render Landa at home in

the forum, and as such the trial court erred in finding general jurisdiction.

                                                     v.    CONCLUSION

           As established herein, Farris did not waive any of her points of error.

Further, Farris cited to no evidence or authority which controverted the fact that

the trial court erred in finding that Farris pleaded sufficient facts to bring Landa

under the Texas long-arm statue.                           Similarly, Farris’ Response failed to point to
																																																								
32
    Appellee’s Response Brief p. 37.
33
    RR p. 84.
                                                              15
	
evidence, which could support a finding that Landa purposefully availed herself of

doing business in the forum. Further, he failed to point to any evidence showing

that Landa’s intermittent contacts with the forum rise to such a systematic and

continuous level as to render her at home in the forum.

       Accordingly, the trial court should have found that it does not have personal

jurisdiction over Landa, and granted her Special Appearance. The failure to do so

constitutes reversible error. Accordingly, Landa requests that the court reverse the

Trial Court’s order denying Landa’s Special Appearance, and dismiss this case in

its entirety. Landa requests such other and further relief to which she may be

entitled.

                                       Respectfully submitted,

                                       HANCE SCARBOROUGH, LLP
                                       400 W. 15th Street, Ste. 950
                                       Austin, Texas 78701
                                       Telephone: (512) 479-8888
                                       Facsimile: (512) 482-6891

                                       By: /s/ Terry L. Scarborough
                                         Terry L. Scarborough
                                         State Bar No. 17716000
                                         tscarborough@hslawmail.com
                                         V. Blayre Pena
                                         State Bar No. 24050372
                                         bpena@hslawmail.com




                                         16
	
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this

brief contains 3745 words. This is a computer generated document created in

Microsoft Word, using 14 point typeface for all text, except for footnotes, which

are in 12-point typeface. In making this certificate of compliance, I am relying on

the word count provided by the software used to prepare the document.




                                             /s/ Terry L. Scarborough
                                             Terry L. Scarborough




                                        17
	
                         CERTIFICATE OF SERVICE
      I hereby certify that a copy of Appellants’ Reply Brief was served on

the following counsel of record on November 30, 2015, via certified mail,

return receipt requested, and/or the electronic filing system:

Counsel for Charles L. Farris
The Cronfel Firm
Guillermo Ochoa-Cronfel
2700 Bee Cave Rd.
Austin, Texas 78746
(512) 347-9600 Phone
(512) 347-9911 Fax




                                              /s/ Terry L. Scarborough
                                              Terry L. Scarborough




                                         18
