                                                                                 ACCEPTED
                                                                             03-15-00335-CV
                                                                                     6008822
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        7/9/2015 11:24:41 PM
                                                                           JEFFREY D. KYLE


                   NO. 03-15-00335-CV
                                                                                      CLERK




                                                             FILED IN
                                                      3rd COURT OF APPEALS
                  IN THE THIRD COURT OF APPEALS           AUSTIN, TEXAS
                          AUSTIN, TEXAS               7/9/2015 11:24:41 PM
                                                        JEFFREY D. KYLE
                                                              Clerk
                         HERBERT ROLNICK,
                                                              Appellant
                                 v.

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


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


                     APPELLANT’S BRIEF

                                      RUTH G. MALINAS
                                      Texas Bar No. 08399350
                                      TIM T. GRIESENBECK, JR.
                                      Texas Bar No. 08454450
                                      SCOTT M. NOEL
                                      Texas Bar No. 00797158
                                      PLUNKETT & GRIESENBECK, INC.
                                      Catholic Life Building, Suite 900
                                      1635 N.E. Loop 410
                                      San Antonio, Texas 78209
                                      (210) 734-7092 (telephone)
                                      (210) 734-0379 (facsimile)
                                      rmalinas@pg-law.com

                                      ATTORNEYS FOR APPELLANT
                                      HERBERT ROLNICK

        APPELLANT REQUESTS ORAL ARGUMENT
              IDENTITY OF PARTIES AND COUNSEL

                                   APPELLATE AND TRIAL COUNSEL
APPELLANT                          FOR APPELLANT

Herbert Rolnick                    Ruth G. Malinas (Lead Appellate)
                                   Texas Bar No. 08399350
                                   Tim T. Griesenbeck, Jr. (Trial)
                                   Texas Bar No. 08454450
                                   Scott M. Noel (Trial)
                                   Texas Bar No. 00797158
                                   Plunkett & Griesenbeck, Inc.
                                   Catholic Life Building, Suite 900
                                   1635 N.E. Loop 410
                                   San Antonio, Texas 78209
                                   RMalinas@pg-law.com
                                   TGriesenbeck@pg-law.com
                                   SNoel@pg-law.com

                                   APPELLATE AND TRIAL COUNSEL
APPELLEES/PLAINTIFFS               FOR APPELLEES/PLAINTIFFS

Sight’s My Line, Inc., a Florida   Brandon Duane Gleason
  Corporation                      Texas Bar No. 24038679
                                   J. Hampton Skelton
Stewart Lantz                      Texas Bar No. 18457700
                                   Skelton & Woody
                                   248 Addie Roy Road, Suite B-302
                                   Austin, TX 78746
                                   hskelton@skeltonwoody.com
                                   bgleason@skeltonwoody.com

                                   Craig S. Hilliard (Pro Hace Vice in
                                   Trial Court)
                                   Stark & Stark
                                   P.O. Box 5315
                                   Princeton, NJ 08543-2315
                                   chilliard@stark-stark.com




                                   i
                                   APPELLATE AND TRIAL COUNSEL
APPELLEES/DEFENDANTS               FOR APPELLEES/DEFENDANTS

Riggs, Aleshire & Ray              Scott R. Kidd
                                   Texas Bar No. 11385500
                                   Scott V. Kidd
                                   Texas Bar No. 24065556
                                   Kidd Law Firm
                                   819 W. 11th Street
                                   Austin, TX 78701
                                   scott@kiddlawaustin.com
                                   svk@kiddlawaustin.com

Blazier, Christensen, Bigelow &    Michael B. Johnson
  Virr                             Texas Bar No. 24029639
                                   Salvador Davila
                                   Texas Bar No. 24065119
                                   Thompson, Coe, Cousins &
                                   Irons, LLP
                                   701 Brazos, Suite 1500
                                   Austin, TX 78701
                                   mjohnson@thompsoncoe.com
                                   sdavila@thompsoncoe.com

Adams & Graham                     Robert E. Valdez
                                   Texas Bar No. 20428100
                                   Jose “JJ” Trevino, Jr.
                                   Texas Bar No. 24051446
                                   Valdez, Jackson & Trevino, PC
                                   1826 North Loop 1604 West,
                                   Suite 275
                                   San Antonio, TX 78248
                                   revaldez@vjtlawfirm.com
                                   jtrevino@vjtlawfirm.com




                                  ii
                                  TABLE OF CONTENTS

                                                                                                 Page

IDENTITY OF PARTIES AND COUNSEL...............................................i
TABLE OF CONTENTS ......................................................................... iii
TABLE OF AUTHORITIES ..................................................................... iv
STATEMENT OF THE CASE ................................................................. vi
STATEMENT REGARDING ORAL ARGUMENT ................................vii
ISSUES PRESENTED .......................................................................... viii
STATEMENT OF FACTS ......................................................................... 1
I.   UNDERLYING FACTS .................................................................... 1
II. PROCEDURAL HISTORY............................................................... 5
SUMMARY OF THE ARGUMENT .......................................................... 5
ARGUMENT AND AUTHORITIES ......................................................... 7
I.   Standard of Review .......................................................................... 7
II. Burdens of Proof ............................................................................... 9
III. The Trial Court Erred In Denying Rolnick’s Special
     Appearance ..................................................................................... 10
     A.   General Principles Governing Personal
          Jurisdiction over a Nonresident ........................................... 10
     B.   Rolnick Lacks “Minimum Contacts” with Texas .................. 12
     C.   The Evidence Is Legally Insufficient to Support
          Specific Jurisdiction over Rolnick in This Case ................... 15
     D.   Even If Rolnick had the Requisite Minimum
          Contacts, Exercising Personal Jurisdiction over
          Him Would Offend Traditional Notions of Fair
          Play and Substantial Justice ................................................ 26
IV. Conclusion and Prayer ................................................................... 27
CERTIFICATE OF COMPLIANCE ........................................................ 28
CERTIFICATE OF SERVICE................................................................. 29
APPENDIX




                                                  iii
                               TABLE OF AUTHORITIES

                                                                                                Page
CASES
Abilene Diagnostic Clinic, PLLC v. Paley, Rothman, Goldstein,
 Rosenburg, Eig & Cooper, Chartered, 364 S.W.3d 359 (Tex.
 App.—Eastland 2012 no pet.) .............................................................. 17
Ahrens & De Angeli, P.L.C. v. Flinn, 318 S.W.3d 474 (Tex.
 App.—Dallas 2010, pet. denied) .......................................................... 17
Am. Type Culture Collection, Inc. v. Coleman,
 83 S.W.3d 801 (Tex. 2002) .............................................................. 11,12
Asahi Metal Indus. Co. v. Superior Court,
 480 U.S. 102 (1987) .............................................................................. 16
Bergenholtz v. Cannata,
 200 S.W.3d 287 (Tex.App.—Dallas 2006, no pet.) ............................... 24
BMC Software Belgium, N.V. v. Marchand,
 83 S.W.3d 789 (Tex. 2002) ........................................................... 7, 8, 12
Burger King Corp. v. Rudzewicz,
  471 U.S. 462 (1985) ........................................................................ 11, 12
City of Keller v. Wilson,
   168 S.W.3d 802 (Tex. 2005) .................................................................. 8
Croucher v. Croucher,
  660 S.W.2d 55 (Tex. 1983) ..................................................................... 9
CSR Ltd.,
  925 S.W.2d 591 (Tex. 1996) ............................................................... 105
Curocom Energy, LLC v. Young-Sub Shim,
 416 S.W.3d 893 (Tex.App.—Houston [1st ........................................... 22
Daimler AG v. Bauman,
 ___ U.S. ___, 134 S. Ct. 746 (2014) ...................................................... 15
Goodyear Dunlop Tires Operations, S.A. v. Brown,
 ___ U.S. ___, 131 S. Ct. 2846 (2011) .................................................... 15
Gordon & Doner, P.A. v. Joros,
  287 S.W.3d 325 (Tex.App.—Fort Worth 2009, no pet.) ................. 23, 25
Guardian Royal Exch. Assur., Ltd. v. English China Clays,
 P.L.C.,
  815 S.W.2d 223 (Tex. 1991) ..................................................... 12, 13, 16
Hanson v. Denckla,
  357 U.S. 235 (1958) .............................................................................. 11



                                                 iv
Horowitz v. Berger,
   377 S.W.3d 115 (Tex.App.—Houston [14th dist.] 2012, no
   pet.) ....................................................................................................... 22
Keeton v. Hustler Magazine, Inc.,
 465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984)....................... 13
Kelly v. Gen’l Interior Constr., Inc.,
 301 S.W.3d 653 (Tex. 2010) ............................................................. 9, 10
Markette v. X-Ray X-Press Corp.,
  240 S.W.3d 464 (Tex. App.—Houston [14th dist.] 2007, no
  pet.) ....................................................................................................... 17
Proskauer Rose, LLP v. Pelican Trading, Inc., No. 14-08-00283-
  CV, 2009 WL 242993, at *4 (Tex. App.—Houston [14th dist.]
  Feb. 3, 2009, no pet.) (mem. op.) .......................................................... 17
Retamco Operating, Inc. v. Republic Drilling Co.,
  278 S.W.3d 333 (Tex. 2009) ............................................................. 9, 21
Scott v. Huey L. Cheramie, Inc.,
  833 S.W.2d 240 (Tex. App.—Houston [14th Dist.] 1992, no
  writ) ........................................................................................................ 9
Siskind v. Villa Found. For Educ., Inc.,
  642 S.W.2d 434 (Tex. 1982) ................................................................... 9
Walden v. Fiore,
   134 S. Ct. 1115 (2014) .................................................................. passim
World-Wide Volkswagen Corp. v. Woodson,
   444 U.S. 286 (1980) .............................................................................. 12
STATUTES
Tex. Civ. Prac. & Rem. Code § 51.014(7) .................................................. 8
RULES
Tex. R. App. P. 28.1(c) ............................................................................... 8
Tex. R. App. P. 9.4 ................................................................................... 28
CONSTITUTIONAL PROVISIONS
Tex. Const. art. I, §19 .............................................................................. 11
U.S. Const. amend. XIV, §1..................................................................... 11
OTHER AUTHORITIES
Robert W. Calvert, “No Evidence” and “Insufficient Evidence”
Points of Error, 38 Tex. L. Rev. 361, 362-363 (1960)................................ 8



                                                        v
                      STATEMENT OF THE CASE

Nature of the Case:           This interlocutory appeal arises from
                              legal malpractice claims appellees
                              Sight’s My Line, Inc. and Stewart
                              Lantz brought in Texas against three
                              Texas law firms and appellant Herbert
                              Rolnick, a Florida lawyer. Rolnick
                              timely filed a special appearance to
                              challenge the trial court’s exercise of
                              personal jurisdiction over him. SML,
                              Lantz and the Texas law-firm
                              defendants opposed Rolnick’s special
                              appearance.

Trial Court:                  200th Judicial District Court, Travis
                              County, Texas, the Honorable Tim
                              Sulak presiding.

Trial Court Disposition:      The trial court denied appellant
                              Rolnick’s special appearance.




                               vi
           STATEMENT REGARDING ORAL ARGUMENT
     Oral argument would greatly assist the court in this case, because

new opinions from the United States Supreme Court have not yet been

applied by Texas Courts under facts similar to those present in the

instant case. Moreover, oral argument will give the Court the opportunity

to question the parties regarding the facts and applicable law. Because

personal jurisdiction is a fact-intensive inquiry, appellant respectfully

requests oral argument in this case.




                                   vii
                         ISSUE PRESENTED
     This case presents the following issue and all fairly included

subsidiary issues:

           Did the trial court err in denying Rolnick’s special
           appearance?




                                   viii
                           STATEMENT OF FACTS1
I.    UNDERLYING FACTS
      Appellee Stewart Lantz resides in Coral Springs, Florida and is the

sole shareholder of appellee Sight’s My Line, Inc. (“SML”), a Florida

corporation. CR:137. SML owned and operated several retail eyeglass

stores in Texas. CR:139. Lantz decided to sell the Texas assets of SML

midway through 2012. CR:382. He hired a broker with whom he

previously had done business to assist him in selling the business.

CR:382-83. The buyer the broker found was American Optical Services,

L.L.C. (“AOS”), a Delaware limited liability company having its offices in

Nevada. CR:383, 166.

      Lantz had an ongoing attorney-client relationship with Florida

attorney Herbert Rolnick, who also lives in Coral Springs, Florida.

CR:382, 502. Appellant Rolnick graduated from law school in 1980. He

was admitted to the Florida Bar in January 1981 and has never been

licensed to practice law in any other state. CR:503. Since then, Rolnick’s

law practice has been located in Broward County, Florida. CR:503. In

1998, Rolnick started representing Lantz individually and entities with

which Lantz was associated in various matters. CR:382, 503.




1The appellate record consists of a clerk’s record (cited as “CR:[page #]”) and a one-
volume reporter’s record (cited as “RR:[page#])”



                                          1
     Lantz asked Rolnick to represent SML and him with regard to the

asset sale to AOS. CR:503. AOS provided the first draft of the asset

purchase agreement. CR:387, 504. Rolnick reviewed the AOS draft,

discussed it with Lantz, and negotiated terms with AOS. CR:505. When

Rolnick communicated with AOS employees, those employees were in

Nevada and Rolnick was in Florida. CR:515. AOS and SML ultimately

agreed that Nevada law would govern the Asset Purchase Agreement,

but Texas law would control the enforceability of the promissory note and

security agreement and thus any foreclosure actions. CR:460, 480, 488.

     Lantz wanted to be sure that he could foreclose on the Texas assets

in the event AOS defaulted on the promissory note. CR:506. Because he

was not familiar with Texas law, Rolnick advised Lantz to hire Texas

counsel to ensure that the security agreement, promissory note, and a

lease complied with Texas law and properly protected SML’s and Lantz’s

interests. CR:506.

     Lantz told Rolnick he wanted to use Jason Ray, a Texas attorney

with the firm Riggs, Aleshire & Ray (“RAR”). CR:384. Ray, who is board-

certified in administrative law, was representing Lantz and SML in a

Texas Medicaid investigation and audit. CR:548. Lantz and Rolnick

contacted Ray and told him about the transaction between SML and

AOS. CR:384. A few days later, Rolnick’s legal assistant sent Ray an

email confirming that Ray’s representation of SML and Lantz would


                                   2
entail reviewing the promissory note and security agreement, ensuring

that the documents complied with Texas law, and making sure Lantz’s

and SML’s rights to the collateral were protected in the event of a default:

             Mr. Rolnick would like you to review the Security
             Agreement and Promissory Note and confirm that
             these are acceptable for Texas law, i.e. that they
             can be recorded and that they would enable us to
             foreclose in the event of a default.
CR:320. Included with the email were copies of the security agreement,

promissory note, and executed asset purchase agreement. CR:476, 333,

444.

       Apparently, unbeknownst to the plaintiffs or Rolnick, Ray had no

experience in transactions such as the one between SML and AOL.

CR:548. Ray sent the documents to Paul Browder, a lawyer with the firm

Blazier, Christensen, Bigelow & Virr (“BCBV”) and asked him to review

them. CR:549-50. Browder sent the documents back to Ray with

comments and questions. CR:550. Ray then sent Browder’s comments

and questions to Rolnick as if they were his own.2 CR:550, 554.




2 Although Ray claimed he told Lantz and/or Rolnick that his lack of transactional
experience would require him to consult with another lawyer, Lantz and Rolnick both
testified they did not know about the other lawyer, that it would be Browder, or that
Browder had supplied the comments and questions Ray sent as his own. CR:517. Ray
sent his bills only to Lantz. CR:551. Browder sent his bills to Ray who then added
Browder’s work to his own bills. CR:553. Ray did not open a new matter for the work
done on the SML-AOS transaction; rather, he placed entries for that work under the
same client and matter number used for the Medicaid audit work he had done for
SML. CR:556.



                                         3
     The draft documents Rolnick sent to Ray stated the security

interests would be perfected by filing a UCC-1 in Delaware where AOS

was located. CR:333. The comments Ray sent back to Rolnick in Florida,

however, included one indicating the UCC-1 instead should be filed in

Texas where the assets at issue were located. CR:336. Rolnick

accordingly changed the promissory note to state that the UCC-1 would

be filed in Texas. CR:516. Rolnick also incorporated into the final

documents the other comments/suggested changes on the drafts Ray sent

back to him. CR:516. Rolnick sent the original UCC-1 to Ray for filing in

Texas. CR:510. No UCC-1 reflecting the security interest in the SML

assets was filed in Delaware, the jurisdiction in which AOS was located

under the Texas Uniform Commercial Code (“UCC”). CR:383.

     AOS defaulted on the promissory note. CR:141. Ray referred Lantz

to appellee Adams & Graham to represent Lantz and/or SML in enforcing

the security agreement and promissory note. CR:387. AOS ultimately

filed a bankruptcy petition in Delaware. CR:141. Lantz learned from

SML’s bankruptcy lawyer that its security interest had not been

perfected, because Texas law actually required that the UCC-1 be filed

in the jurisdiction in which the debtor was located, i.e., Delaware, rather

than where the assets were located. CR:142. Instead of having a perfected

security interest in the assets, SML ended up with an unsecured claim in

the AOS bankruptcy. CR:142.


                                    4
II.   PROCEDURAL HISTORY
      SML and Lantz filed suit against RAR, BCBV, and Adams &

Graham, the three Texas law firms who had done work in Texas in

connection with SML’s sale of assets to AOS and attempts to enforce the

plaintiffs’ security interests against AOS. CR:3. On the same day it

answered the suit, RAR filed a third-party petition against Rolnick.

CR:17. Rolnick timely filed a special appearance and original answer

subject thereto. CR:23, 134. Shortly thereafter, SML and Lantz amended

their petition to name Rolnick as a defendant. CR:137. After the parties

conducted limited discovery solely on the jurisdictional issue, the trial

court held a hearing on the special appearance for which there is a

reporter’s record filed with this Court. The trial court took the special

appearance under advisement and later denied it. CR:697. The order does

not specify the basis for the ruling. CR:697. This interlocutory appeal

followed. CR:698.

                    SUMMARY OF THE ARGUMENT
      The United States and Texas Supreme Courts have clearly

articulated the Constitutional boundaries of personal jurisdiction in

Texas. Plaintiffs and the Texas lawyer defendants have asserted legal

malpractice/contribution claims against Rolnick, alleging that his

provision of legal services to plaintiffs in Florida caused the harm about

which plaintiffs complained. It is undisputed that Rolnick is a Florida




                                    5
resident whose practice of law is limited to Florida. It is also undisputed

that Rolnick and appellee Lantz had an ongoing attorney-client

relationship since 1998. The evidence before the trial court and this Court

conclusively establishes that all of the legal services Rolnick provided to

plaintiffs Lantz and SML (both domiciled in Florida) occurred in Florida.

     All of the legal services provided by Rolnick about which plaintiffs

complain involve SML’s sale of its Texas assets to a Delaware corporation

with offices in Nevada. Lantz hired a Texas lawyer with whom he had an

on-going relationship to review a promissory note and security

agreement to ensure they complied with Texas law, which SML and the

buyer had agreed would govern that part of the transaction. Although

Rolnick communicated and exchanged drafts with the Texas lawyer, he

did so for the benefit of plaintiffs and as part of his representation of them

in Florida. It is undisputed that Rolnick never went to Texas and did not

perform any of the legal work for plaintiffs in Texas.

     Texas cases have held that the personal jurisdiction analysis in

legal malpractice cases against nonresident lawyers or law firms must

focus on where the legal services were provided. This is so even when the

client is a Texas resident and the lawyer has communicated opinions to

a Texas client. The court so holding have reasoned that the claims arise,

not out of any contacts the nonresident lawyer purposefully directs to

Texas, but, rather, from the lawyer’s exercise of judgment and provision


                                      6
of legal services outside Texas. A similar analysis is used when plaintiffs

attempt to sue nonresident physicians for medical malpractice that

involved treatment provided outside of Texas.

     In recent Texas Supreme Court and United States Supreme Court

cases, the jurisdictional analysis has been clarified. Both courts have

rejected arguments based on conduct characterized as directing a tort to

a Texas resident. Moreover, the United State Supreme Court has held

that the specific jurisdiction question is not where the plaintiff suffered

an injury or effect, but whether the defendant’s conduct connects him to

the forum State in a relevant and meaningful way. Stated another way,

when the plaintiff is the only link between the defendant the forum, a

Texas court does not have specific jurisdiction over the nonresident

defendant.

     Under the analysis used in these cases, the trial court erred in

denying Rolnick’s special appearance. This Court should reverse the trial

court’s order and render judgment dismissing the claims against Rolnick.

                   ARGUMENT AND AUTHORITIES
I.   Standard of Review
     “Whether a court has personal jurisdiction over a defendant is a

question of law” (BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

789, 794 (Tex. 2002)) that an appellate court reviews de novo. See Moki

Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The



                                    7
resolution of the jurisdictional question, however, may require

determinations of fact to which the law is then applied. See BMC

Software, 835 S.W3d at 794.
      If, as here, the trial court does not issue findings of fact and

conclusions of law,3 this Court must assume that the lower court

impliedly found all the facts necessary to support the challenged order.

See id at 795. Because the appellate record in this case includes the
reporter’s record of the special appearance hearing, the implied findings

are not conclusive. See id. Rather, the implied findings can be challenged

for legal and factual sufficiency. See id.

      A legal sufficiency complaint must be sustained if:

             the record discloses one of the following situations:
             (a) a complete absence of evidence of a vital fact;
             (b) the court is barred by rules of law or of evidence
             from giving weight to the only evidence offered to
             prove a vital fact; (c) the evidence offered to prove
             a vital fact is no more than a mere scintilla; (d) the
             evidence establishes conclusively the opposite of
             the vital fact.
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert
W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38

Tex. L. Rev. 361, 362-363 (1960)). A factual insufficiency challenge must

be sustained if a review of the entire record reveals that an implied

3 The trial court need not make findings of fact or conclusions of law with respect to
an interlocutory order that can be immediately appealed. Tex. R. App. P. 28.1(c).
Denial of a special appearance is such an order. See Tex. Civ. Prac. & Rem. Code
§ 51.014(7).



                                          8
finding is against the great weight and preponderance of the evidence or

is not supported by factually sufficient evidence.                 See Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983).

II.   Burdens of Proof
      Under Texas law, the plaintiff has the initial burden to plead

sufficient allegations to confer personal jurisdiction over the out-of-state

defendant under the Texas long-arm statute. See Retamco Operating,

Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). The burden
then shifts to the defendant challenging personal jurisdiction to negate

factually or legally those bases for personal jurisdiction the plaintiff has

alleged. 4 See Kelly v. Gen’l Interior Constr., Inc., 301 S.W.3d 653, 658,

659 (Tex. 2010). If the plaintiff fails to plead that the defendant

committed any purposeful acts in Texas, the defendant carries its burden

simply by establishing that he is a nonresident. See Siskind v. Villa

Found. For Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982).
      The defendant negates jurisdiction factually by producing evidence

establishing he “has no contacts with Texas, effectively disproving the

plaintiff’s allegations.” Kelly, 301 S.W.3d at 659. The defendant negates

jurisdiction legally by showing that: (1) even if the plaintiff’s

4 Some cases have stated the defendant’s burden is to negate “all bases of personal
jurisdiction.” See, e.g., This does not mean, however, the nonresident defendant “must
negate every possible ground in the universe[;]” rather, the defendant must negate
only those bases alleged by the plaintiff to support personal jurisdiction. See Scott v.
Huey L. Cheramie, Inc., 833 S.W.2d 240, 241 (Tex. App.—Houston [14th Dist.] 1992,
no writ).



                                           9
jurisdictional allegations were true, those alleged facts cannot support

personal jurisdiction; or (2) the evidence is legally insufficient to establish

jurisdiction. See id.

III.   The Trial Court Erred In Denying Rolnick’s Special Appearance
       A.    General Principles Governing Personal Jurisdiction over a
             Nonresident
       The constitutional standards for determining personal jurisdiction

are well-settled in Texas. “A court may assert personal jurisdiction over

a nonresident defendant only if the requirements of both the Due Process

Clause of the Fourteenth Amendment to the U.S. Constitution and the

Texas long-arm statute are satisfied.” CSR Ltd., 925 S.W.2d 591, 594

(Tex. 1996). The Texas Supreme Court has interpreted the Texas long-

arm statute “to reach as far as the federal constitutional requirements of

due process will allow.” Id.; see also Kelly, 301 S.W.3d at 657; Moki Mac,

221 S.W.3d at 575 (citing other cases). As a result, if the exercise of

personal jurisdiction comports with due process limits, the requirements

of the Texas long-arm statute are likewise satisfied.5

       The Due Process Clause of the Fourteenth Amendment protects a

defendant’s liberty interests in not being subject to the binding

judgments of a forum with which it has established no meaningful

5The Texas Supreme Court has cautioned that simply because allegations satisfy the
Texas long-arm statute, personal jurisdiction may still be improper over a particular
defendant. See Michiana Easy Livin’ Country, Inc., v. Holten, 168 S.W.3d 777, 784
(Tex. 2005). The court based that analysis on the rule that the long-arm statute can
extend no further than the U.S. Constitution allows. See id.



                                         10
contacts, ties, or relations. See Burger King Corp. v. Rudzewicz, 471 U.S.

462, 471-472 (1985); see also U.S. Const. amend. XIV, §1; Tex. Const. art.

I, §19. In applying that limitation, “the constitutional touchstone remains

whether the defendant purposefully established ‘minimum contacts’ in

the forum State.” Burger King, 471 U.S. at 474.

     Minimum contacts establish personal jurisdiction if a nonresident

defendant “‘purposefully avails itself of the privilege of conducting

activities within the forum state, thus invoking the benefits and

protections of its laws.’” Moki Mac, 221 S.W.3d at 575 (quoting Hanson

v. Denckla, 357 U.S. 235, 253 (1958)); see also Michiana, 168 S.W.3d at
784. The nonresident defendant’s activities “must justify a conclusion

that the defendant could reasonably anticipate being called into a Texas

court,” whether those activities occur within or outside Texas. See Am.

Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
     The “purposeful availment” inquiry has three parts. See Moki Mac,

221 S.W.3d at 575. First, only the defendant’s contacts with Texas count.

See Michiana, 168 S.W.3d at 785. The unilateral activities of other
parties are irrelevant. See id.

     Second, the conduct relied upon to establish minimum contacts

must be “purposeful,” not fortuitous, random, or attenuated. See id.

When analyzing contacts, courts must focus on the quality and nature of

the contacts, rather than the number of contacts or whether the contacts


                                    11
included tortious conduct. See Am. Type Culture, 83 S.W.3d at 806.

        Finally, the nonresident defendant must have sought some benefit,

profit, or other advantage by “availing” himself of Texas. See Michiana,

168 S.W.3d at 785. This particular aspect of “purposeful availment” is

“premised on notions of implied consent[.]” See id. In other words, “by

invoking the benefits and protections of a forum’s laws, a nonresident

consents to suit there.” Id. (citing World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297 (1980) and Am. Type Culture, 83 S.W.3d at
808).

        Even if the defendant has purposefully engaged in forum activities,

the exercise of jurisdiction still must comport with traditional notions of

“fair play and substantial justice.” Burger King, 471 U.S. at 477-478. This

inquiry requires an appellate court to consider several factors, including

the burden on the nonresident defendant and the forum state’s interests,

if any, in resolving the dispute. See Guardian Royal Exch. Assur., Ltd. v.

English China Clays, P.L.C., 815 S.W.2d 223, 228, 231 (Tex. 1991).

        B.   Rolnick Lacks “Minimum Contacts” with Texas
        Under modern minimum contacts analysis, a nonresident

defendant’s conduct is evaluated under two jurisdictional theories:

specific jurisdiction and general jurisdiction. Specific jurisdiction exists

if the nonresident defendant’s “alleged liability arises from or is related

to an activity conducted within the forum.” BMC Software, 83 S.W.3d at



                                     12
796. The minimum contacts analysis for specific jurisdiction focuses “on

the relationship among the defendant, the forum and the litigation.”

Guardian Royal, 815 S.W.2d at 228; see also Moki Mac, 221 S.W.3d at
575-576 (reaffirming Guardian Royal analysis). In order for litigation to

arise from or relate to a nonresident defendant’s contacts, there must be

a substantial connection between those contacts and the operative facts

of the litigation.” Moki Mac, 221 S.W.3d at 585.

     Barely a year ago, the United States Supreme Court addressed

what contacts qualify as “minimum contacts” necessary to create specific

jurisdiction. See Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). In its

unanimous opinion, the Court explained that the nonresident’s “suit

related conduct must create a substantial connection with the forum

State.” Id. The Court reaffirmed that the specific-jurisdiction inquiry

must focus on “the relationship among the defendant, the forum, in the

litigation.” Id. (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770,

775, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (internal quotations

omitted). The Court in Walden first held that this relationship has to

arise out of contacts the defendant himself created with the forum State.

See id. at 1122. Walden reiterates that contacts between the plaintiff or
third parties and the forum State will not satisfy the defendant’s focused

“minimum contacts” requirement.




                                   13
     In Walden, the Court further held that the “minimum contacts”

analysis must look to “the defendant’s contacts with the forum State

itself, not the defendant’s contacts with persons who reside there.” Id. at

1122. In other words, when the plaintiff is the only link between the

defendant and the forum, specific jurisdiction is lacking. See id. at 1122-

1123. The Court emphasized that, although “a defendant’s contacts with

the forum State may be intertwined with his transactions or interactions

with the plaintiff or other parties [,]” due process principles require that

personal jurisdiction over a defendant be “based on his own affiliation

with the State, not based on the ‘random, fortuitous, or attenuated’

contacts he makes by interacting with other persons affiliated with the

State.” Id. at 1123. Finally, the Court clarified that the same analysis

applies when intentional torts are alleged, and more importantly,

rejected the argument that a defendant’s allegedly tortious conduct that

causes the plaintiff to suffer an injury in the forum State is enough. The

Court held that the “proper question is not where the plaintiff

experienced a particular injury or effect, but whether the defendant’s
conduct connects him to the forum in a meaningful way.” Id. at 1116
(emphasis added). This analysis confirms the analytical framework

adopted by the Texas Supreme Court in the Michiana and Moki Mac

cases.




                                    14
     General jurisdiction, on the other hand, subjects a nonresident

defendant to causes of action that do not arise from or relate to the

defendant’s purposeful conduct within Texas. As a result, the minimum

contacts analysis for general jurisdiction has always been more

demanding than for specific jurisdiction. See CST Ltd., 925 S.W.2d at

595. Although Texas cases had previously required only “continuous and

systematic contacts” with Texas to support general jurisdiction, two

recent United States Supreme Court cases have clarified that general

jurisdiction requires even more. See Daimler AG v. Bauman, ___ U.S.

___, 134 S. Ct. 746, 757 (2014); Goodyear Dunlop Tires Operations, S.A.

v. Brown, ___ U.S. ___, 131 S. Ct. 2846, 2853 (2011). “For an individual,
however, the paradigm forum for the exercise of general jurisdiction is

the individual’s domicile[.]” Id.

     It is undisputed that Rolnick’s domicile is Florida. It is thus not

surprising that appellees asserted only specific, rather than general,

jurisdiction. CR:261, 659.

     C.    The Evidence Is Legally Insufficient to Support Specific
           Jurisdiction over Rolnick in This Case
     Specific jurisdiction exists when “the defendant’s alleged liability

arises from or is related to an activity conducted within the forum.” CSR

Ltd., 925 S.W.2d at 595. Any actions taken outside the forum can
constitute minimum contacts only when those actions are “purposefully




                                    15
directed toward the forum state.” Asahi Metal Indus. Co. v. Superior

Court, 480 U.S. 102, 112 (1987); see also Guardian Royal, 815 S.W.2d at
227. The Texas Supreme Court has cautioned, however, that jurisdiction

turns on a defendant’s contacts, not where the defendant “directed a tort.”

Michiana, 168 S.W.3d at 790.6
      In Michiana, the Texas Supreme Court disapproved those cases

holding that “(1) specific jurisdiction is necessarily established by

allegations or evidence that a nonresident committed a tort in a

telephone call from a Texas number, or that (2) specific jurisdiction turns

on whether a defendant’s contacts were tortious rather than the contacts

themselves.” 168 S.W.3d at 791-792. Moreover, the court thoroughly

explained why personal jurisdiction over a nonresident defendant cannot

be based on where a tortious injury will be felt by the plaintiff. See id. at

788-792. Thus, while allegations that the defendant committed a tort in

Texas can satisfy the Texas Long-Arm Statute, such allegations do not

necessarily satisfy the U.S. Constitution. See id. at 788.

      In Texas, the focus of the personal jurisdiction analysis in a legal

malpractice suit against a nonresident attorney focuses on where the

nonresident attorney performed legal services, which in this case is

Florida. See Abilene Diagnostic Clinic, PLLC v. Paley, Rothman,

6As a result, any reliance on cases finding personal jurisdiction over a nonresident
defendant because tortious conduct was “directed” to Texas from outside Texas would
be misplaced.



                                        16
Goldstein, Rosenburg, Eig & Cooper, Chartered, 364 S.W.3d 359, 365-66
(Tex. App.—Eastland 2012 no pet.); Ahrens & De Angeli, P.L.C. v. Flinn,

318 S.W.3d 474, 484-485 (Tex. App.—Dallas 2010, pet. denied);

Proskauer Rose, LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009
WL 242993, at *4 (Tex. App.—Houston [14th Dist.] Feb. 3, 2009, no pet.)

(mem. op.); Markette v. X-Ray X-Press Corp., 240 S.W.3d 464, 468-69

(Tex. App.—Houston [14th dist.] 2007, no pet.). In all of these cases, the

appellate courts held there was no specific jurisdiction over nonresident

attorneys and law firms where the lawyer exercised his legal judgment,

formed his legal opinions, and did the legal work for the client in states

other than Texas. The courts so held even when it was undisputed that

the work product of the nonresident attorney was sent to Texas or done

for a Texas client. See Abilene Diagnostic, 364 S.W.3d at 364; Proskauer,

2009 WL 24293, at *4; Markette, 240 S.W.3d at 468 & n.2.

      This same analysis has been used to preclude personal jurisdiction

over a nonresident physician in a Texas suit arising from treatment the

physician provided in Michigan. See Brocail v. Anderson, 132 S.W.3d 552,

563   (Tex.App.—Houston      [14th    Dist.]   2004,   pet.   denied).   The

patient/plaintiff was a former professional baseball player whose initial

treatment by the physician in Michigan. See id. at 555. After the plaintiff

moved to Texas for rehabilitation, the nonresident physician prescribed

follow-up treatments to be administered by physicians in Texas. See id.


                                     17
at 55-56. Plaintiff sued the physician in Texas, claiming that the doctor’s

conduct in faxing prescriptions to Texas and communicating with his

Texas physicians justified specific jurisdiction. See id. at 558. The Texas

Supreme Court in Moki Mac cited and discussed Brocail with approval

agreed with the court of appeals’ conclusion that the tort about which

Brocail complained occurred in the exercise by the physician of his

medical judgment in Michigan. See Moki Mac, 221 S.W.3d at 588. The

analysis in Brocail approved and applied by the supreme court applies

with equal force to the instant case.

     The record before the trial court in the instant case included the

entire depositions of Rolnick, Lantz and Ray, affidavits, and documents.

The following undisputed evidence establishes that Rolnick lacked

minimum contacts with Texas under the analysis used in the above cases:

           •     Rolnick has been a Florida resident for approximately
                 35 continuous years (CR:35);
           •     He has never lived in or even visited Texas (CR:35);
           •     He is a lawyer licensed to practice in Florida and is a
                 partner in a Florida law firm, the only office of which is
                 in Florida (CR:35);
           •     He has never been licensed to practice law in Texas and
                 has never appeared pro hac vice in a Texas court
                 (CR:35);
           •     No lawyer associated with Rolnick’s law firm has been
                 licensed to practice law in Texas, has practiced law in
                 Texas, or has appeared pro hac vice in a Texas court
                 (CR:35);



                                    18
•   Rolnick does not have a registered agent for service of
    process in Texas (CR:35);
•   He has never had any bank accounts in Texas (CR:35);
•   Rolnick has never owned or leased any real property in
    Texas, does not conduct business in Texas, and has
    never paid or been required to pay taxes in or to Texas
    (CR:35);
•   He does not have any employees, agents, books, records,
    mailing addresses, or telephone listings in Texas
    (CR:36);
•   Rolnick has never sold, consigned, or leased any tangible
    or intangible property in Texas (CR:36);
•   He has never advertised for, recruited, or solicited
    clients, employees, or customers in Texas (CR:36);
•   Rolnick had represented Lantz since 1998 in individual
    matters and matters involving Florida-based companies
    Lantz has owned (CR:382, 503);
•   Lantz, who resides in Florida, asked Rolnick to
    represent him in the sale of SML’s assets in Texas to
    AOS (CR:503);
•   SML is a Florida corporation that owned and operated
    retail eyeglass businesses in Texas (CR:139);
•   AOS is a Delaware limited liability company with its
    offices in Nevada (CR:166);
•   When SML and AOS agreed that Texas law would
    govern the enforceability of the promissory note and
    security agreement in favor of SML, Rolnick advised
    Lantz to obtain Texas counsel to advise Lantz on how to
    protect his interests under Texas law. Rolnick did so
    because he was not familiar with Texas law (CR:39);
•   Lantz chose Ray as his Texas counsel, because Ray had
    been representing him and/or SML in a Texas Medicaid
    audit. Rolnick did not solicit or hire Ray or his firm
    (CR:384, 389, 386-87);


                      19
•   According to Ray, Lantz insisted on hiring Ray, even
    though Ray’s expertise was in administrative law rather
    than transactional law (CR:549);
•   Lantz admitted that Rolnick did not identify or solicit
    Ray as Texas counsel for the transaction (CR:386-87);
•   In the past, when legal issues had arisen regarding
    SML’s Texas operations, Lantz had hired a Texas
    lawyer to resolve them (CR:390);
•   All of the legal work Rolnick did in connection with the
    SML-AOS transaction took place in Florida in the course
    of his representation of SML and/or Lantz (CR:37);
•   Rolnick communicated from Florida with the AOS
    representatives, who were in Nevada (CR:37,505);
•   Rolnick never spoke with, met with, or sought legal
    services from appellees BCBV and Adams & Graham,
    either for himself or any of his clients, including Lantz
    or SML (CR:515, 517);
•   Ray admitted that: (1) Lantz was his client (CR:550); (2)
    he asked a BCBV lawyer to review the documents
    (CR:553); (3) he passed off as his own the BCBV lawyer’s
    comments and questions regarding the documents
    (CR:550, 554); and (4) he sent his bills to Lantz (CR:551);
•   Ray admitted that he did not have an attorney-client
    relationship with Rolnick (CR:551-52);
•   Rolnick confirmed in writing that Ray’s work for Lantz
    and SML was to “to review the Security Agreement and
    Promissory Note and confirm that these are acceptable
    for Texas law, i.e. that they can be recorded and that
    they would enable us to foreclose in the event of a
    default” (CR:320);
•   The draft promissory note Rolnick sent to Ray for review
    stated that the UCC-1 would be filed in Delaware
    (CR:333);
•   Rolnick interpreted the comments Ray emailed back to
    Rolnick as indicating the UCC-l should instead be filed


                       20
                    in Texas, so Rolnick revised the promissory note to
                    reflect perfection of the security interest by filing the
                    UCC-1 in Texas rather than in Delaware (CR:336, 516);
              •     The work that Ray and the other Texas lawyers did in
                    connection with the SML-AOS transaction was for the
                    benefit of Lantz and SML (CR:556);
              •     Rolnick’s “contacts” with Texas with regard to the SML-
                    AOS transaction were limited to emailing the
                    transactional documents to Ray, having a few telephone
                    conferences with Ray to discuss the comments Ray sent
                    back to Rolnick, and mailing the original closing
                    documents to Ray to record (CR:160);
              •     Ray introduced plaintiffs to Adams & Graham (CR:387);
                    and
              •     Rolnick did not benefit or gain any advantage from his
                    incidental contacts with plaintiffs’ lawyers in Texas
                    (CR:386).
        Plaintiffs and defendant Adams & Graham filed responses to

Rolnick’s special appearance.7 None of the arguments made in the

responses takes the instant case out of the general rule that a Texas court

does not have personal jurisdiction over a nonresident lawyer sued for

malpractice, when all of the legal work done for the client takes place

outside of Texas.

        For example, plaintiffs place much emphasis on the fact that the

SML-AOS transaction involved the sale of businesses and leases located

in Texas. Although a defendant’s purchase or sale of real property located

in Texas can constitute purposeful availment (see Retamco, 278 S.W.3d


7   Defendants RAR and BCBV did not file responses.



                                        21
at 340), a nonresident defendant’s communications about or involvement

in a transaction involving Texas real property does not constitute

purposeful availment when the defendant does not have an interest in

the property. See Curocom Energy, LLC v. Young-Sub Shim, 416 S.W.3d

893, 897-898 (Tex.App.—Houston [1st Dist.] 2013, no pet.) (holding that

Texas court lacked jurisdiction over nonresident defendant in suit

alleging fraud in connection with sale to plaintiff of oil and gas interests

in Texas, where fraudulent conduct took place in Korea and defendant

had no ownership interest in the land at issue); Horowitz v. Berger, 377

S.W.3d 115, 125 (Tex.App.—Houston [14th dist.] 2012, no pet.) (holding

there was no personal jurisdiction over Israeli promoter of Texas real

property because alleged fraud occurred exclusively in Israel and

emphasizing that promoter never owned an interest in the property).

That is the case here. All of Rolnick’s legal work involving the sale of

SML’s assets took place in Florida, and there is no evidence that Rolnick

owned any interest in SML or any of the Texas assets.

     Plaintiffs   also   argued   that   Rolnick    “quarter-backed”    the

transaction and thus his actions were directed towards Texas. This

argument too is defeated by the analysis adopted in 2007 by the Texas

Supreme Court in Michiana and Moki Mac, as well as the analytical

frame work required by the recent United States Supreme Court decision

in Walden. It is undisputed that all of the work Rolnick did with respect


                                    22
to the transaction was done for the benefit of Lantz and/or SML, his

Florida clients. All of that work was done in Florida, and involved no

travel to Texas. As the Court explained in Walden, it is the defendant’s

contacts with the forum, not with a person living there that are

jurisdictionally relevant. Simply put, appellees’ reliance on the activities

of the Texas lawyers are not relevant to the minimum contacts analysis.

      Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325 (Tex.App.—Fort
Worth 2009, no pet.) illustrates the point. In Gordon, a Florida resident

sued a Florida law firm and a Texas law firm alleging legal malpractice

in connection with the plaintiff’s claim for injuries allegedly caused by a

prescription drug. See id. at 328. The plaintiff hired the Florida lawyer

to file suit on his behalf in multi-district litigation pending in a New York

federal district court. See id. The Florida lawyer referred the case to the

Texas lawyer. See id. The Florida and Texas lawyers allegedly entered

into a written agreement to jointly represent the Florida client. See id.

According to the Florida client, the Texas lawyer would be lead counsel,

with a substantial portion of the legal services to be done by the Texas

lawyer in Texas. See id. According to the alleged agreement, however,

the Florida and Texas lawyers “would remain jointly responsible for [the

plaintiff’s] case.” Id.

      Although both lawyers allegedly told their Florida client his case

would be filed “soon,” the claim was never filed. See id. at 328-29. The


                                     23
client filed the legal malpractice suit in Texas state district court. The

Florida lawyer filed a special appearance, which the trial court denied.

See id. at 330.
      The Fort Worth Court of Appeals reversed and rendered a judgment

dismissing the Florida client’s claims against the Florida lawyer for want

of jurisdiction. See id. at 336. Although the court held that the contract

between the Florida and Texas lawyers satisfied the “doing business”

requirement of the Texas long-arm statute, the court relied on Moki Mac

in holding that satisfying the Texas Long-Arm statute is not sufficient.

See id. at 332. The court then conducted the minimum contacts analysis
required by federal due process principles. Relying on cases holding that

merely contracting with a Texas resident was insufficient, the court

rejected the argument that the contract between the Florida and Texas

lawyer supported the exercise of specific jurisdiction. See id. at 332. The

court also rejected the Florida client’s argument based on the fact that

the parties intended most of the legal services on the case to occur in

Texas. The court held that those services, which were to be performed by

the Texas lawyer, were not relevant to the minimum contacts analysis.

See id. at 333.8



8See also Bergenholtz v. Cannata, 200 S.W.3d 287, 292 (Tex.App.—Dallas 2006, no
pet.) (plaintiff’s receipt of legal advice, billings, and correspondence in Texas from
nonresident lawyer not relevant to jurisdiction).



                                         24
     Moreover, the Gordon analysis and holding conclusively rebuts

appellees’ argument in their response that collaboration between a

Florida lawyer and a Texas lawyer can confer personal jurisdiction on the

Florida lawyer, particularly when the two lawyers represent the same

Florida client. Gordon’s holding that there was no jurisdiction over the

Florida lawyer, despite the fact that most of the legal work for the client’s

litigation would be done in Texas (albeit by the Texas lawyer) applies

with particular force here, since the legal work done by the Texas lawyer

in the instant case was far less.

     Furthermore, it is undisputed that any phone calls between Rolnick

and Ray, emails between them transmitting documents, and Rolnick’s

participation in negotiations with AOS are not minimum contacts by

Rolnick with Texas. This is particularly true, since the phone calls and

work done in Texas by Ray and the other Texas lawyers and by Rolnick

in Florida was for their Florida client’s benefit.

     Finally, the record in this case conclusively establishes that, from

Rolnick’s perspective, his contacts with the Ray were the sort of

fortuitous, random, or attenuated contacts that Walden teaches cannot

support personal jurisdiction over a nonresident defendant, such as

Rolnick. Rolnick’s contacts with Ray were fortuitous, because they

resulted from the fact that the SML assets being sold were in Texas.

There is no evidence that Rolnick had any interest in those assets or any


                                     25
part in the decision to sell them. The choice of Texas law was also

fortuitous from Rolnick’s perspective, because that choice was made

because plaintiffs wanted to be able to foreclose on those assets, which

were to be located in Texas after the sale. 9

      D.    Even If Rolnick had the Requisite Minimum Contacts,
            Exercising Personal Jurisdiction over Him Would Offend
            Traditional Notions of Fair Play and Substantial Justice
      Even when a defendant has minimum purposeful contacts with a

state, the state court cannot exercise personal jurisdiction over the

defendant if doing so would offend traditional notions of fairness. See

Burger King, 471 U.S. at 477-478. Texas courts evaluate several factors
in determining whether asserting jurisdiction over a nonresident

defendant would be fair and just, including: (1) the burden on the

defendant; (2) the interests 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 efficient

resolution of controversies; and (5) the shared interest of the several

States in furthering fundamental substantive social policies. Guardian

Royal, 815 S.W.2d at 228, 232. In this case, the relevant factors show




9 Plaintiffs also made a strange argument that personal jurisdiction over Rolnick
could be established by agency principles. CR:281-282. He further admitted that he
became involved in the sale of SML’s assets through a phone call he received from
Lantz, who asked him to look at the sale documents and work with Rolnick. CR:549.



                                       26
that asserting jurisdiction over Rolnick would indeed violate traditional

notions of fair play and substantial justice.

      The burden on Rolnick to litigate in Texas would be significant. His

law practice is located in Florida, the only place in which he is licensed

to practice law. As explained previously, Rolnick has no property,

employees, or assets in Texas.

      Texas has no interest in adjudicating any dispute between Rolnick

and plaintiffs, both of whom are domiciled in Florida. This is especially

true, because it is undisputed that all of Rolnick’s legal work for plaintiffs

took place outside of Texas in Florida. Since Rolnick and plaintiffs are

residents of Florida, that state would be a much more convenient forum

for all of them.

IV.   Conclusion and Prayer
      For all of the reasons given above, the trial court erred in denying

Rolnick’s special appearance. Appellant Herbert Rolnick respectfully

prays for the Court to reverse the trial court’s order, render judgment

dismissing the claims against him for lack of personal jurisdiction and

for such other relief to which he may be entitled.




                                     27
                  CERTIFICATE OF COMPLIANCE
     Pursuant to Texas Rule of Appellate Procedure 9.4, the

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

volume limitations of that rule. The undersigned prepared the

Appellant’s Brief using Microsoft Word 2013 and is relying on that

software’s word-count function.

     Exclusive of the exempted portions listed in Texas Rule of Appellate

Procedure 9.4, the brief contains 6,439 words.

                                      /s/ Ruth G. Malinas
                                    RUTH G. MALINAS




                                   28
                                       Respectfully submitted,

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


                                          /s/ Ruth G. Malinas
                                       RUTH G. MALINAS

                                       COUNSEL FOR APPELLANT
                                       HERBERT ROLNICK


                     CERTIFICATE OF SERVICE

      This will certify that a true and correct copy of the foregoing
Appellant’s Brief has been forwarded this 9th day of July, 2015, to the
following attorneys of record via the method stated:

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




                                   29
Scott R. Kidd
Scott V. Kidd
Kidd Law Firm
819 W. 11th Street
Austin, TX 78701
scott@kiddlawaustin.com
svk@kiddlawaustin.com
Attorneys for Riggs, Aleshire & Ray

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

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




                                        /s/ Ruth G. Malinas
                                       RUTH G. MALINAS




                                  30
Appendix
                                               DC                       BK15135 PG738
                                                                                                  Filed in The District Court
                                                                                                   of Travis County, Texas

                                                                                                        MAY 14 2015
                                                No. D-1-GN-14-004583                              At               lf '.Q.g:.p M.
                                                                                                  Velva L. Price1 District Clerk
SIGHT'S MY LINE, INC., et al                                        §                   IN THE DISTRICT COURT
                                                                    §
v.                                                                  §                   TRAVIS COUNTY, TEXAS
                                                                    §
RIGGS, ALESHIRE & RAY, et al                                        §                   200th JUDICIAL DISTRICT


                             ORDER OVERRULING SPECIAL APPEARANCE


       On the 14th day of May, 2015, came on for hearing the special appearance

filed by Herbert Rolnick.                   Having considered the pleadings, special appearance,

evidence, and argument of counsel, the court concludes that the special appearance

should be overruled.

       IT IS THEREFORE ORDERED that Herbert Rolnick's special appearance be,

and the same is hereby, overruled.

                                                                              Signed this t   'fZ_y of May, 2015




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