                                                                                      ACCEPTED
                                                                                  04-15-00398-CV
                                                                      FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                             8/31/2015 2:17:50 PM
                                                                                   KEITH HOTTLE
                                                                                           CLERK

                          No. 04-15-00398-CV

                                                                  FILED IN
                                                           4th COURT OF APPEALS

                          In the
                                                            SAN ANTONIO, TEXAS
                                                           8/31/2015 2:17:50 PM

       Fourth Court of Appeals, San Antonio, Texas           KEITH E. HOTTLE
                                                                   Clerk
                        ___________________________

                          CAROLINE BUSWELL,
                                           Appellant

                                    v.

 THE GWSPI COMPANY, LLC, AS SUCCESSOR IN INTEREST TO WILMINGTON
 TRUST, NA, TRUSTEE OF THE JEFFREY P. BLANCHARD 2013 FAMILY TRUST,
                                           Appellee


                 On Appeal from Cause No. 2015-CI-06197,
      In the 224th District Court of Bexar County at San Antonio, Texas
__________________________________________________________________

                        BRIEF OF APPELLEE


                                  J. Steve Mostyn
                                  jsmdocketefile@mostynlaw.com
                                  Gregory F. Cox
                                  gfcdocket@mostynlaw.com
                                  Caroline L. Maida
                                  clmaida@mostynlaw.com
                                  MOSTYN LAW
                                  3810 West Alabama St.
                                  Houston, Texas 77027
                                  713.714.0000 (Office)
                                  713.714.1111 (Facsimile)

                                  Attorneys for Appellee
August 31, 2015
                     IDENTITY OF PARTIES AND COUNSEL


Defendant/Appellant is Caroline Buswell.

Appellant’s counsel are:

      Andrew G. Jubinsky
      andy.jubinsky@figdav.com
      Lance V. Clack
      Lance.clack@figdav.com
      FIGARI + DAVENPORT, LLP
      901 Main Street, Suite 3400
      Dallas, Texas 75202
      214.939.2000 (Office)
      214.939.2090 (Facsimile)


Plaintiff/Appellee is The GWSPI Company, LLC, As Successor in Interest to
Wilmington Trust, NA, Trustee of the Jeffrey P. Blanchard 2013 Family
Trust.

Appellee’s counsel are:

      J. Steve Mostyn
      jsmdocketefile@mostynlaw.com
      Gregory F. Cox
      gfcdocket@mostynlaw.com
      Caroline L. Maida
      clmaida@mostynlaw.com
      MOSTYN LAW
      3810 West Alabama St.
      Houston, Texas 77027
      713.714.0000 (Office)
      713.714.1111 (Facsimile)




                                     -ii-
                                             TABLE OF CONTENTS

COVER PAGE ............................................................................................................i
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE .............................................................................. viii
ISSUE PRESENTED ................................................................................................ix
STATEMENT OF FACTS ........................................................................................1
STATEMENT ON ORAL ARGUMENT ................................................................. 3
SUMMARY OF THE ARGUMENT ........................................................................ 3
ARGUMENT .............................................................................................................5
       A.         Special Appearance Burdens and Standards on Appeal ....................... 5

       B.         Appellee Satisfied the Jurisdictional Pleading Requirements .............. 6

       C.         Kelly v. General Interior Construction, Inc. is Distinguishable… ..... 10

       D.         The Trial Court Correctly Determined That It Could Exercise Specific
                  Jurisdiction Over Buswell ...................................................................17
                  1. Buswell, a nonresident defendant, had minimum contacts with
                     Texas.………………………...………………………………..…18

                  2. Buswell directed her minimum contacts toward Texas and could
                     reasonably    foresee    being   haled    into    a    Texas
                     court.………………………...………………………………..…21

                  3. Buswell purposefully availed herself of the privileges and benefits
                     of    conducting       business      in      the      State     of
                     Texas.………………………...………………………………..…23



                                                         -iii-
                  4. The trial court has specific jurisdiction over Buswell because the
                     litigation arises from, relates to, and/or has substantial connection
                     with Buswell’s minimum contacts with the State of
                     Texas.………………………...………………………………..…26

                  5. The trial court’s exercise of specific jurisdiction does not offend
                     traditional   notions     of    fair     play     and    substantial
                     justice...………………………...……………………………..…28

PRAYER ..................................................................................................................32
CERTIFICATE OF COMPLIANCE .......................................................................33
CERTIFICATE OF SERVICE ................................................................................33




                                                          -iv-
                                     INDEX OF AUTHORITIES
Cases

Am. Type Culture Collection, v. Coleman,
     83 S.W.3d 801 (Tex. 2002) ................................................................ 6, 10, 26

Asahi Metal Indus. Co. v. Superior Court of Cal.,
      480 U.S. 102 (1987).......................................................................................23

BMC Software Belgium, N.V. Marchand,
    83 S.W.3d 789 (Tex. 2002) .................................................................... 10, 20

Burger King Corp. v. Rudzewicz,
     471 U.S. 462 (1985)............................................................................... passim

Carey III v. State of Texas,
     2010 Tex. App. LEXIS 5683 (Tex. App.—San Antonio July 21, 2010, pet.
     denied) .............................................................................................. 6, 7, 8, 25

Counter Intelligence, Inc. v. Calypso Waterjet Sys., Inc.,
     216 S.W.3d 512 (Tex. App.—Dallas 2007, no pet. h.) .................................27

CSR, Ltd. v. Link,
      925 S.W.2d 591 (Tex. 1996) ...........................................................................5

First National Bank of Libby, Montana v. Rector,
       710 S.W.2d 100 (Tex. App.—Austin 1986, writ ref’d n.r.e.) .......................31

Fjell Tech Group v. Unitech Int’l, Inc.,
       2015 Tex. App. LEXIS 966; 2015 WL 457805 (Tex. App.—Houston [14th
       Dist.] February 3, 2015) ................................................................................15

Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C.,
     815 S.W.2d 223 (Tex. 1991) ................................................................. passim

Kelly v. Gen. Interior Constr., Inc.,
      301 S.W.3d 653 (Tex. 2010) ........................................................ 5, 10, 12, 16

                                                         -v-
Liberty Mut. Ins. Co. v. Garrison Contractors, Inc.,
      966 S.W.2d 482 (Tex. 1998) .........................................................................22

McGee v. International Life Ins. Co.,
    355 U.S. 220 (1957).......................................................................................29

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

Pulmosan Safety Equip. Corp. v. Lamb,
     273 S.W.3d 829 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) .........6

Retamco Operating, Inc. v. Republic Drilling Co.,
     278 S.W.3d 333 (Tex. 2009) .........................................................................14

Royal Mortgage Corp. v. Montague,
      41 S.W.3d 721 (Tex. App.—Fort Worth 2001, no pet.) ...................... 248, 30

Schlobohm v. Schapiro,
      784 S.W.2d 355 (Tex. 1990) .........................................................................31

Siskind v. Villa Found. For Educ., Inc.,
      642 S.W.2d 434 (Tex. 1982) .........................................................................12

Stauffacher v. Lone Star Mud, Inc.,
      954 S.W.3d 810 (Tex. App.—Texarkana 2001, no pet.) ................................5

Stull v. Laplant,
       411 S.W.3d 129 (Tex. App.—Dallas 2013, no pet.) .......................................5

Tex. Dep’t. of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004) ...........................................................................6

Texas Commerce Bank v. Interpol ’80 Ltd.,
      703 S.W.2d 765 (Tex. App.—Corpus Christi 1985 , no writ) ......................31

World-Wide Volkswagen Corp. v. Woodson,
     444 U.S. 286 (1980).......................................................................................17

                                                      -vi-
Statutes

McCarran-Ferguson Act, 15 U.S.C. § 1012 ............................................................30

TEX. CIV. PRAC. & REM. CODE ANN. § 17.042                   .............................................................5

TEX. INS. CODE § 541.002 ...................................................................................22

TEX. INS. CODE § 541.003 ...................................................................................22

Other Authorities

OXFORD AMERICAN DICTIONARY 728 (HEALD COLLEGES ED. 1980) ......................25




                                                    -vii-
                            STATEMENT OF THE CASE

Nature of the case:             Life Insurance Company of the Southwest
                                (“LSW”), a Texas entity and defendant below,
                                rescinded a ten million dollar ($10,000,000) policy
                                on the life of Jeffrey P. Blanchard, a Texas
                                resident. Appellee, and Plaintiff below, The
                                GWSPI Company, LLC, current Trustee of the
                                Jeffrey P. Blanchard 2013 Family Trust, filed suit
                                against LSW and LSW’s senior claim examiner,
                                Caroline Buswell, Appellant and also Defendant
                                below, in Bexar County state district court.
                                Plaintiff asserted causes of action for breach of
                                contract and breach of the duty of good faith and
                                fair dealings against LSW and additional causes of
                                action for fraud, conspiracy to commit fraud, and
                                multiple violations of the Texas Insurance Code
                                against LSW and Appellant Buswell. CT 1-18.
                                Buswell, a Tennessee resident, actively
                                participated in the investigation and decision to
                                rescind the policy. Buswell filed a special
                                appearance pursuant to TEX. R. CIV. P. 120a. CR
                                24-32. On June 8, 2015, the trial court heard the
                                special appearance and denied it. CR 53. This
                                interlocutory appeal followed. CR 59-60.

Trial Court:                    Hon. David A. Canales of the 73rd District Court
                                of Bexar County, sitting for the 224th District
                                Court of Bexar County, Texas

Trial court’s action:           On June 8, 2015, the trial court heard Appellant
                                Buswell’s special appearance and denied it. CR 53.

Parties on appeal:

      Plaintiff/Appellee:       The GWSPI Company, LLC, Trustee of the Jeffrey
                                P. Blanchard 2013 Family Trust

      Defendant/Appellant:      Caroline Buswell
                                       -viii-
                                 ISSUE PRESENTED

     Reply to issue: The trial court did not err in denying Appellant’s special

appearance and declaring that the trial court has specific jurisdiction over

Appellant because: (1) Appellant’s minimum contacts with Texas are purposeful

and the causes of action relate to and are substantially connected to those contacts;

and (2) Appellant, a nonresident defendant, failed to negate Appellee’s asserted

grounds for personal jurisdiction.




                                        -ix-
                            STATEMENT OF FACTS

      The basis of this suit is the rescission and failure to pay the proceeds of a ten

million dollar ($10,000,000) life insurance policy (the “Policy”), which was applied

for and issued in Texas by Defendant Life Insurance Company of the Southwest

(“LSW”), a Texas company with its principal place of business in Addison, Texas.

CR 2-5; CR 49-51. This Texas Policy insured the life of Bexar County, Texas

resident, Jeffrey P. Blanchard (“Mr. Blanchard”) who died in Texas on June 19,

2014. CR 4.

     The Policy’s owner and the intended recipient of the insurance proceeds is the

Jeffrey P. Blanchard 2013 Family Trust (“the Family Trust”). CR 4-5. The current

trustee of the Family Trust, and appellee herein, is The GWSPI Company, LLC

(“Appellee” and/or “Trustee”). CR 24.

      Following Mr. Blanchard’s death, Appellee submitted a claim to LSW for the

insurance proceeds. CR 4. LSW assigned its employee and senior claims examiner,

Appellant Caroline Buswell (“Appellant” or “Buswell”) to “supervise the

contestability review on the Policy.” CR 25; RR 20:8-9, 12:21-24. Buswell, a

resident of Tennessee, reviewed the medical records from Mr. Blanchard’s Texas

physicians and hospitals. RR 1-17. She also reviewed Mr. Blanchard’s application

for the Policy from LSW’s file in Texas. CR 49-51. Based upon this review, a

decision was made to rescind the ten million dollar ($10,000,000) Texas Policy


                                          1
because of alleged misrepresentations in the Policy’s application. CR 4-5. Buswell,

in her capacity as senior claims examiner for LSW, authored and signed the August

1, 2014 letter to The Blanchard Estate and sent this letter to the estate in San Antonio,

Texas, RR 12:6-7, notifying it of the policy rescission. CR 46-48. By a second letter

of the same date, Buswell notified the Family Trust of the rescission to its then-

trustee, Cook, TPA, in the State of New York. CR 24-25. Enclosed with the second

letter was a check refunding policy premiums. Id.

      On April 15, 2015, Appellee filed suit in state district court in Bexar County,

Texas against LSW and Buswell for the wrongful rescission of the Policy and the

failure to pay the Policy’s proceeds. CR 1-18. Specifically, as against LSW, the

Trustee alleged breach of contract, a declaratory judgment action, and breach of the

duty of good faith and fair dealing. As against LSW and Buswell both, the Trustee

alleged causes of action for fraud, conspiracy to commit fraud, and multiple

violations of the Texas Insurance Code. Id.

      On May 22, 2015, Buswell filed a special appearance seeking a dismissal from

the suit for lack of jurisdiction in Texas. CR 24-32. Buswell’s special appearance

was heard on June 8, 2015 by Judge David Canales, sitting for the 224th District

Court, Bexar County, Texas. RR 1-30. At the close of the hearing, the trial court

overruled Buswell’s special appearance and confirmed that Buswell is subject to

jurisdiction in Texas. RR 27:20-21; CR 53. No findings of fact or conclusions of law


                                           2
were filed by the trial court. This interlocutory appeal challenges the trial court’s

order overruling Buswell’s special appearance. CR 53; 59-60. Appellee asserts that

the trial court’s order should be affirmed.

                    STATEMENT ON ORAL ARGUMENT

      Appellee, The GWSPI Company, LLC, opposes Appellant’s request for oral

argument. The noncomplex issues presented by this interlocutory appeal are capable

of being fully and adequately understood by the Court and briefing of the parties

without the necessity of oral argument. Moreover, the record is clear that the trial

court did not err in denying Buswell’s special appearance. As such, oral argument

would not aid this Court in resolving the issue presented by Appellant.

                       SUMMARY OF THE ARGUMENT

      The trial court’s denial of Appellant Caroline Buswell’s special appearance

should be affirmed. Appellee, GWSPI Company LLC met its initial burden in its

original petition and in its response to Buswell’s special appearance, to sufficiently

allege jurisdictional facts bringing Buswell within reach of the Texas long-arm

statute which governs Texas courts exercise of jurisdiction over nonresident

defendants. The burden then switched to Burwell, as the nonresident defendant to

negate all potential bases alleged for the exercise of personal jurisdiction which

Buswell here failed to do. Accordingly, the trial court was correct in determining




                                          3
that it has specific jurisdiction over this defendant Tennessee resident and the order

denying Buswell’s special appearance should be affirmed.

      The trial court’s determination that it has specific jurisdiction over Buswell

was correct because: (1) Buswell has sufficient minimum contacts with the State of

Texas for minimum contacts purposes consisting of her review of Texas documents-

-the medical records from Mr. Blanchard’s Texas physicians and hospitals and Mr.

Blanchard’s application for the life insurance policy in LSW’s Texas files—upon

which the rescission of the ten million dollar ($10,000,000) Policy was based and

which rescission resulted in her August 1, 2014 letter notifying the Blanchard Estate

in San Antonio, Texas of the Policy’s rescission; (2) Buswell directed those

minimum contacts toward the State of Texas and could reasonably foresee being

haled into a Texas court based on a controversy arising from the rescission of a ten

million dollar ($10,000,000) Policy and the failure to pay the proceeds of that Policy;

(3) Buswell “purposely availed” herself of the privileges and benefits offered by

Texas while conducting her business in Texas--the investigation of the life insurance

policy claim; (4) Buswell’s minimum contacts, noted above, are related to and are

substantially connected with the litigation and are, in fact, the very foundation and

core of it and Appellee’s causes of action alleged against Buswell for various

violations of the Texas Insurance Code, fraud and conspiracy to commit fraud; and

(5) based on all of the above facts, the exercise of specific jurisdiction over Buswell


                                          4
by a Texas trial court does not offend traditional notions of fair play and substantial

justice. The trial court’s order denying Buswell’s special appearance should be

affirmed.

                                       ARGUMENT

A.     Special Appearance Burdens and Standards on Appeal:

       In an action involving a special appearance, the parties are subject to shifting

burdens. The plaintiff bears the initial burden to plead sufficient allegations to bring

a nonresident defendant within the provisions of the Texas long-arm statute.1 A

plaintiff’s original petition as well as a response to the defendant’s special

appearance can both be considered in determining whether the plaintiff satisfied its

original pleading burden.2 If the plaintiff meets this modest pleading burden, then

the burden shifts to the nonresident defendant to prove that it is not subject to

jurisdiction in Texas. 3 “A nonresident defendant must negate all bases of personal

jurisdiction to prevail in a special appearance.” 4




1
  See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); see TEX. CIV. PRAC.
& REM. CODE ANN. § 17.042. This statute, with its broad language, authorizes Texas courts to
exercise personal jurisdiction over anyone “doing business” in Texas and permits the statute to
reach as far as federal constitutional requirements of due process permit. Guardian Royal Exch.
Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).
2
  See Stull v. Laplant, 411 S.W.3d 129, 134 (Tex. App.—Dallas 2013, no pet.).
3
  CSR, Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996).
4
  Stauffacher v. Lone Star Mud, Inc., 54 S.W.3d 810, 816 (Tex. App.—Texarkana 2001, no pet.).
                                               5
       Whether a court has personal jurisdiction over a nonresident defendant is a

pure question of law that this Court reviews de novo. 5 In considering the denial of a

special appearance, the Court determines only the issues of jurisdiction, not

liability. 6 Additionally, when determining a jurisdictional plea and whether

sufficient facts were plead to give the trial court jurisdiction, a plaintiff’s pleadings

are liberally construed and the allegations accepted as true and in the light most

favorable to the plaintiff.7

B.     Appellee Satisfied the Jurisdictional Pleading Requirements:

       Appellee met its initial pleading burden and sufficiently pleaded the grounds

on which the trial court could—and ultimately did—exercise specific jurisdiction

over Appellant under the Texas long-arm statute.8 In describing the extent of a

plaintiff’s initial pleading burden in a special appearance contest, this very Court in

Carey III. v. the State of Texas 9 held:

              To meet this burden, the plaintiff does not need to detail all the
              theories or bases of personal jurisdiction upon which he relies;
              rather, the plaintiff needs only to plead allegations sufficient to
              bring the nonresident defendant within the province of the long-
              arm statute [cites omitted]. 10

5
  See Am. Type Culture Collection, v. Coleman, 83 S.W.3d 801, 805-06 (Tex. 2002).
6
  Id. at 805.
7
  See Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Pulmosan
Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied).
8
  Coleman, 83 S.W.3d at 807.
9
  Carey III v. State of Texas, 2010 Tex. App. LEXIS 5683 (Tex. App.—San Antonio July 21,
2010, pet. denied).
10
   Id. at *5.
                                             6
        Carey III illustrates a plaintiff’s pleading requirement in a special appearance

contest. The Careys owned two Nevada limited liability companies, which had their

principal offices in Florida and operated in Texas.11 The companies sold travel-

related software licenses to Texas consumers.12 The State brought suit against the

Careys individually and named the two companies for fraudulently obtaining

millions of dollars from Texas consumers through misrepresentations in the

advertising and sale of the travel-related software licenses. 13 This Court found the

following jurisdictional allegations sufficient to invoke the Texas long-arm statute:

        In its original petition, the State specifically named each defendant,
        including each of the Careys, and then began referring to all the
        defendants collectively as ‘Defendants.’ The State alleged the
        defendants, without making the appropriate disclosures, solicited Texas
        consumers to attend sales presentations and used false, deceptive, and
        misleading acts to persuade consumers to enter into contracts for travel-
        related software licenses. In a separate section of the petition entitled
        ‘Liability of James Edward Carey III and Gwendolyn Faye Carey,
        Individually,’ the State alleged the Careys were directly and indirectly
        engaged in the ‘deceptive acts and practices by making false or
        misleading material misrepresentations to consumers’ after knowing
        such representations were false and misleading. The State further
        alleged the Careys made these false representations with the intent to
        induce Texas consumers to rely on the representations and enter into
        purchased agreements for the travel-related software licenses… 14

        This Court held:


11
   Id. at *4.
12
   Id.
13
   Id.
14
   Id. at *12.
                                            7
          By describing the allegations against the defendants and asserting
          the Careys were individually liable for the fraudulent practices and
          misrepresentations, we conclude the State alleged sufficient
          jurisdictional facts to bring the Careys within the Texas long-arm
          statute.15

          Like the allegations found to be sufficient in Carey III, here, the allegations

in Plaintiff’s Original Petition, CR 1-18, when considered along with Plaintiff’s

Response to Defendant Caroline Buswell’s Special Appearance, CR 33-51, satisfy

Trustee’s modest, initial burden to plead sufficient allegations to bring Buswell

within the reach of the Texas long-arm statute. Plaintiff’s Original Petition, in

relevant part, states:

          7.    The Court has jurisdiction over Defendant Buswell because this
          and defendant engages in the business of insurance in the State of
          Texas, and Plaintiff’s causes of action arise out of this defendant’s
          business activities in the State of Texas.

          8.     This Court has personal jurisdiction over each Defendant
          because they do business in Texas and have sufficient contacts with the
          State of Texas, both generally and with regard to this specific action, so
          that exercise of personal jurisdiction over them is proper and does not
          offend traditional notions of fair play and substantial justice. CR 3.
                                              …

          17. Defendant LSW assigned Defendant Buswell to investigate
          Plaintiff’s claim. Buswell was improperly trained and failed to perform
          a thorough investigation of the claim. By letter dated August 1, 2014,
          LSW and Buswell wrongfully rescinded the Policy misrepresenting that
          material misrepresentations were made in the application for the Policy
          and underwriting process. Thereafter, also on August 1, 2104, [sic]
          LSW and Buswell denied Plaintiff’s claim based on the wrongful
          rescission. CR 4.

15
     Id. (emphasis added).
                                              8
Plaintiff’s Response to Defendant Caroline Buswell’s Special Appearance

summarizes the separate section in Plaintiff’s Original Petition entitled: “Causes of

Action Against Buswell: Noncompliance with Texas Insurance Code: Unfair

Settlement Practices,” CR 8-10, wherein Appellee sets forth specific allegations of

Buswell’s wrongful conduct in the business of insurance that relate to the litigation

and give rise to Buswell’s liability under the Texas Insurance Code: 16

       5.     On May 22, 2015, Defendant Buswell filed her Special
       Appearance. Buswell seeks to be dismissed from this case based upon
       lack of jurisdiction. Buswell’s arguments are insufficient to dismiss the
       claims against her in this suit because the acts and omissions she
       committed were in violation of Texas law and took place in the State of
       Texas. This Court has personal jurisdiction over Buswell despite the
       fact that she resides in Tennessee. The Court has jurisdiction over
       Buswell because at the time of the incident made the basis of this
       lawsuit, she was engaged in the business of investigating insurance
       claims in the State of Texas, and the causes of action made the basis
       of this lawsuit arise out of Buswell’s business activities in the State
       of Texas. Specifically, Buswell engaged in the investigation of a life
       insurance claim in Texas. Under Texas law, insurance investigators
       are individually liable for violations of the Texas Insurance Code,
       regardless of whether they were acting on behalf of themselves or
       in their capacity as an employee of an insurance company engaged
       in the business of investigating insurance claims in Texas. CR 35
       (internal citations omitted) (emphasis added).

       In sum, Appellee’s petition, which must be construed liberally, and the

allegations therein, which this Court must accept as true, when taken together with


16
  See also CR 5-10 ¶¶ 20-4 (Appellee quotes summarization of Plaintiff’s pleading contained in
Plaintiff’s Response to Defendant Caroline Buswell’s Special Experience in lieu of inserting
extended excerpts from the pleading in full).
                                              9
Plaintiff’s Response to Defendant Caroline Buswell’s Special Appearance, allege

sufficient jurisdictional facts to bring Buswell within the reach of the Texas long-

arm statute. Appellee has discharged its initial pleading burden. 17 The burden now

shifts to Appellant Buswell, the nonresident defendant, to negate all potential bases

for personal jurisdiction.18 Appellant Burwell failed to do so.

C.     Kelly v. General Interior Construction, Inc. is Distinguishable:

       In attempting to satisfy her burden to show that she is not subject to the

jurisdiction of this Texas court, Appellant Buswell relies heavily on Kelly v. General

Interior Constr., Inc., 19 RR 7:24-25; 8-9:1-13. 20 Specifically, Appellant’s brief touts

that Kelly is the “Case in Point,” and nearly one–third of Appellant’s brief is spent

discussing the Kelly opinion. 21

       Kelly, however, is distinguishable and provides no support for a reversal of

the trial court’s order overruling Buswell’s special appearance. A brief look at the

facts in Kelly is necessary in order to distill its distinctions to this case.

       Kelly is a construction contract case concerning the renovation of a Houston

hotel. 22 The two individual, nonresident defendants are owners and officers

(“Officers”) of Diva Constructing, Inc. (“Diva”), an Arizona-based construction


17
   See American Type Culture Collection, 83 S.W.3d at 807.
18
   BMC Software Belgium, N.V. Marchand, 83 S.W.3d 789, 798-99 (Tex. 2002).
19
   Kelly v. General Interior Constr., Inc., 301 S.W.3d 653 (Tex. 2010).
20
   See also Appellant’s Brief at 7-10.
21
   Id.
22
   Kelly, 301 S.W. 3d at 656.
                                            10
company. Diva contracted with another non-Texas entity for the hotel’s renovation23

and, also, contracted with General Interior Construction, Inc. (“GIC”), a Texas

corporation, for performance of part of the renovation. 24 Conflict arose and GIC sued

the two individual officers (“Officers”) and Diva for breach of contract, fraud and

violations of the Texas Trust Fund Act.25 The nonresident defendant Officers filed a

special appearance which was denied by the trial court. 26 The court of appeals

affirmed in part finding that the Officers were subject to jurisdiction in Texas for

plaintiff’s fraud and Texas Trust Fund claims but reversed as to the breach of

contract claim. 27

        The Texas Supreme Court reversed and dismissed all the claims against the

Officers finding that GIC had failed to meet its initial special appearance burden to

plead any jurisdictional allegations to bring the defendant Officers within the reach

of the Texas long-arm statute. 28

        As noted, GIC’s live pleading contains no allegations that the
        Officers’ wrongdoing occurred in Texas. Regarding the fraud claim,
        GIC did allege several fraudulent acts (e.g., providing false affidavits
        to Meristar and misrepresenting to GIC that it would be paid in full),
        but it did not allege that any fraudulent acts occurred in Texas.
        Regarding the trust-fund claims, GIC did not allege that the Officers
        used or retained the trust funds in Texas, nor that they submitted false
        affidavits to Meristar in Texas. Thus, although GIC has alleged two
23
   Id.
24
   Id.
25
   Id.
26
   Id.
27
   Id. at 655.
28
   Id. at 659-60.
                                          11
       claims of wrongdoing, it has not alleged that any acts giving rise to
       these two claims occurred in Texas.29

       Thus, the crux of the holding in Kelly is GIC’s complete failure to plead

jurisdictional facts tying the Officers’ torts to Texas.30 Because GIC failed to meet

its initial burden to plead sufficient jurisdictional facts, the Officers were able to

satisfy their burden to negate all bases for jurisdiction by merely proving that they

did not reside in Texas. 31

       Kelly, therefore, does not qualify as the “Case in Point,” here, for many

reasons. First, unlike the petition in Kelly, which failed to plead any jurisdictional

facts, Plaintiff’s Original Petition, CR 1-18, and special appearance response, CR

33-51, as discussed above, demonstrate that Appellee has plead sufficient

jurisdictional facts to bring the nonresident defendant, Buswell, within the confines

of the Texas long-arm statute. In short, there is no pleading failure in this case. Given

that the primary holding in Kelly is based on GIC’s pleading failure, Kelly is certainly

not the “Case in Point” here.

       Second, Appellant’s brief omits, entirely, any discussion of the primary

holding in Kelly, instead fixating on a secondary holding that a nonresident

defendant’s mere commission of an act in violation of Texas law will not grant a



29
   Id. at 660 (emphasis added).
30
   Id. at 659.
31
   Id. citing Siskind v. Villa Found. For Educ., Inc., 642 S.W.2d 434,438 (Tex. 1982).
                                               12
Texas court jurisdiction over the nonresident actor.32 Applying this rule and what

Appellant perceives to be the rule in Michiana Easy Livin’ Country, Inc. v. Holten,33

Appellant argues that Appellee fails to identify any acts Buswell directed towards

Texas, or committed in Texas that give rise to Appellee’s claims against Buswell.34

Appellant asserts that her authoring, signing, and sending of the August 1, 2014

rescission letter to the Blanchard Estate in San Antonio, Texas does not constitute a

sufficient minimum contact. Specifically, Buswell contends that she did not have

sufficient, minimum contacts with Texas because: (1) “Buswell did not send the

letter from Texas”; (2) the Blanchard Estate is not a party to the litigation; and (3)

the rescission letter, according to Appellant, “is a single communication with a Texas

resident,” which even if tortious, is insufficient to give a Texas court jurisdiction

over Buswell.35 Citing Kelly yet again, Appellant draws the erroneous conclusion

that “[a]ppellee has not introduced evidence of activity in Texas that gives rise to its

claims, and therefore it has failed to demonstrate jurisdiction over Buswell.” 36

       Appellant’s interpretation of the law and representation of the facts and

allegations in this litigation are specious at best. Appellant’s contention that in order

to establish jurisdiction, a nonresidents’ contacts must have “taken place in Texas”



32
   See Appellant Brief at 7-10.
33
   Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005).
34
   See Appellant’s Brief at 8-9.
35
   See Appellant’s Brief at 9 (emphasis added).
36
   See Appellant’s Brief at 9-10.
                                             13
or “be in Texas” or “come from Texas” is simply incorrect. The Texas Supreme

Court, in Michiana, did not hold that specific jurisdiction turns only on Texas-based

contacts. Rather, Michiana makes clear that the exercise of specific jurisdiction by

a Texas court does not require the physical intrusion into Texas of a nonresident

defendant’s minimum contacts.

       In Retamco Operating, Inc. v. Republic Drilling Co., the Texas Supreme

Court affirmed personal jurisdiction over the nonresident defendant, Republic

Drilling Company. 37 Retamco, a Texas company sued Republic, a California

domiciliary, for fraudulent transfer of oil and gas leases in violation of the Fraudulent

Transfer Act.38 Republic filed a special appearance arguing that it did not have

minimum contacts in Texas because the transfer occurred outside of Texas. 39 The

Supreme Court held that “[j]urisdiction …may not be avoided merely because

the defendant did not physically enter the forum state.” 40

       Appellant makes the conclusory argument multiple times at the special

appearance hearing and in her brief, that the August 1, 2014 rescission letter to the

Blanchard Estate in Texas is not a sufficient minimum contact because the estate is

not a party to the litigation. RR 7:3-5, 10: 7-9; 25: 2-12.41 Appellant, however, does



37
   Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009).
38
   Id. at 336.
39
   Id.at 336-37.
40
   Id.at 339 (quoting Burger King, 471 U.S. at 476) (emphasis added).
41
   See Appellant’s Brief at 4, 8, and 9.
                                             14
not cite a single legal authority in support of this wholly conclusory argument.

Appellee contends there is no authority to support Appellant’s conclusion because it

is not the law in Texas. In fact, the exact opposite appears in cases that Appellee has

reviewed. For example, in Fjell Tech. Group v. Unitech Int’l, Inc., 42 a recent case

out of the Fourteenth Court of Appeals the court considered whether an individual

employee (Van Uden) of a Norwegian company had sufficient contacts in Texas

where she sent marketing emails to individuals in Texas (non-parties) and also by

communicating with a Texas company’s Texas-based employees. In particular, with

regard to the trade secret claim, the court held:

              Fjell’s and van Uden’s liability, if any, arises from and relates to
              their contacts with Texas because (1) the alleged email
              transmission of Unitech’s alleged trade secrets to individuals in
              Texas and (2) the use of Unitech’s confidential customer lists in
              sending the emails, all of which allegedly caused Unitech to
              suffer economic harm, are at the core of Unitech’s trade-secret
              theft claims. 43

       Thus, nonresident defendants Fjell’s and van Uden’s email transmissions to

individual Texas customers who were non-parties in the litigation were found by

the court to constitute sufficient minimum contacts because they were purposefully,




42
    Fjell Tech Group v. Unitech Int’l, Inc., 2015 Tex. App. LEXIS 966; 2015 WL 457805 (Tex.
App.—Houston [14th Dist.] February 3, 2015).
43
   Id. at 2015 Tex. App. LEXIS 966, * 21.
                                             15
not random and fortuitous, and they substantially related to the operative facts of

Unitech’s Texas Theft Liability Act. 44

          Appellee rejects Appellant’s unsupported and conclusory proposition of law

that the rescission letter to the Blanchard Estate in Texas is not a sufficient minimum

contact for Buswell. The letter, as explained herein was purposefully, was directed

toward Texas and was substantially connected to the litigation because it contained

actionable misrepresentations regarding the rescission of the Policy in violation of

Chapter 541 of the Texas Insurance Code. The fact that the letter was mailed to a

non-party in Texas, the Blanchard Estate, is entirely irrelevant and has no bearing

on whether this letter from Buswell constitutes a legitimate Texas contact—it is. CR

46-48.

          Given the well-established precedent and the blatant dissimilarities between

the present case and the primary authorities relied on by Appellant, Kelly and

Michiana, Appellee urges that Appellant failed to meet his burden to negate potential

bases for the trial court’s personal jurisdiction and has not presented a viable ground

for a reversal of the trial court’s order. The denial of Buswell’s special appearance

should be affirmed.




44
     Id. at 2014 Tex. App. LEXIS 966, *18.
                                             16
D.    The Trial Court Correctly Determined That It Could Exercise Specific
      Jurisdiction Over Buswell:

      To establish specific jurisdiction over a nonresident defendant, two

requirements must be met. First, the nonresident defendant must have minimum

contact with the forum state and those minimum contacts with the forum state must

be: (1) purposeful, rather than random, fortuitous, or attenuated; and (2) purposefully

directed toward the forum state so the nonresident defendant could reasonably

foresee being haled into court there. Second, the causes of action asserted must arise

from, relate to, and/or be substantially connected to the nonresident defendant’s

minimum contacts. 45

      As detailed below, Appellant Buswell’s forum contacts plainly satisfy the

foregoing requirements. Further, Appellee’s causes of action against Buswell arise

from, relate to, and/or are substantially connected to Buswell’s minimum contacts

to such an extent that the trial court’s exercise of specific jurisdiction over Buswell

is proper and does not violate the due process clause of the United States

Constitution. Accordingly, the trial court’s order denying Buswell’s special

appearance should be affirmed.




45
  See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985); World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980).
                                           17
          1. Buswell, a nonresident defendant, had minimum contacts with Texas:

          A Texas trial court may properly exercise personal jurisdiction over a

nonresident defendant under the Due Process Clause of the U.S. Constitution and

the Texas long-arm statute when: (1) the defendant has established minimum

contacts with Texas; and (2) the exercise of jurisdiction does not offend traditional

notions of fair play and substantial justice.46

          Buswell’s minimum contacts with Texas support the trial court’s exercise of

specific jurisdiction. To accomplish her assignment to investigate the ten million

dollar ($10,000,000) life insurance claim, Buswell was tasked with reviewing, and

in fact reviewed, medical records from Mr. Blanchard’s health care providers and

treating physicians in the State of Texas. Additionally, Buswell was tasked with

reviewing Mr. Blanchard’s application for the life insurance policy, which was

submitted to LSW and maintained in LSW’s files in its Texas office. CR 49-51.

Following and based on Buswell’s review of these Texas documents, the decision

was made to rescind the Policy. CR 46-48. Notification of the rescission was

provided by Buswell, who authored, signed and sent two rescission letters dated

August 1, 2014—one to Blanchard’s Estate in San Antonio, Texas and the second

to then-Trustee of the Blanchard Family Trust in New York. CR 46-51; RR 5: 10-

13.


46
     Id., Burger King, 471 U.S. at 475-76.
                                             18
          This rescission letter makes clear that the Texas medical records and

application for insurance submitted and maintained in Texas were the key

components of the decision to rescind the Policy. CR 46-48. These contacts by

Buswell with Texas constitute the required minimum contacts necessary to confer

specific jurisdiction over Buswell. CR 46-51. Thus, as to whether Buswell has

sufficient minimum contacts with the State of Texas, the answer must be “yes.”

          Appellant only acknowledges one of these contacts—the August 1, 2014

letter—and contends that letter to Blanchard’s Estate in San Antonio, Texas is

insufficient to establish jurisdiction over Buswell because it is only a “single

communication.”47 Appellant urges Michiana stands for the proposition that a single

communication, or minimum contact of one letter, is not sufficient to support

specific jurisdiction over Buswell.48 At the trial court hearing, counsel for Appellant,

referencing Buswell’s August, 2014, rescission letter, which was sent to the Estate

in San Antonio, Texas was “[t]he only piece of evidence in this record, the only

specific fact alleged, is one letter that Ms. Buswell sent to the estate,” and urged that

Michiana states that “[t]hat’s not enough.” RR 10: 21-24.

          As previously discussed, Appellant counsel’s interpretation of the holding in

Michiana is misguided. In Michiana, the Court held that the exercise of personal



47
     See Appellant’s Brief at 9.
48
     Id.
                                            19
jurisdiction over Michiana, an Indiana resident, was improper because Michiana’s

sole contact with Texas was not the result of any actions directed toward Texas.49

The sole contact in Michiana was in fact a telephone call from Holten, a resident of

Texas, who called Michiana in Indiana to arrange for the purchase of an RV.50

Appellant’s attempt to analogize this single contact in Michiana—a contact

expressly initiated by the Texas-plaintiff, not the nonresident defendant—with the

contacts initiated by Buswell and explicitly directed toward Texas is lacking and

without merit.

       Furthermore, Appellant is mistaken in concluding that Buswell has only one

minimum contact with Texas—Buswell has two minimum contacts—the Texas

documents comprised of the medical records and Policy application, CR 49-51, and

the August 1, 2014 rescission letter to Blanchard’s Estate in San Antonio, Texas, CR

46-48. However, even if Appellee only had the one contact—either the Texas

documents, or the Texas rescission letter—either would be sufficient for purposes

of specific jurisdiction because Buswell’s alleged liability and the litigation are

related to and substantially connected to precisely these contacts.51 Thus, a single




49
   See Michiana Easy Livin’ Country v. Holten, 168 S.W.3d at 794.
50
   Id.
51
   See BMC, 83 S.W.3d at 796.
                                             20
act or contact is sufficient for purposes of minimum contacts to support the exercise

of specific jurisdiction. 52

          2. Buswell directed her minimum contacts toward Texas and could
             reasonably foresee being haled into a Texas court.

          Next, unlike the parties in Michiana, here, Buswell purposefully directed her

minimum contacts toward Texas. As the assigned LSW senior claims examiner,

Buswell was tasked with investigating the Texas life insurance claim submitted by

the Texas Trustee of the Blanchard Family Trust. CR 4; RR 6: 13-14. Thus, it is

hardly surprising, and was reasonably foreseeable, that this assignment would result

in Buswell having to conduct business with or direct her business activities toward

the State of Texas. Critical to the investigation of the Texas claim was Buswell’s

review of Texas medical records and an application maintained in LSW’s Texas

files, as expressly acknowledged in Buswell’s August, 2014, rescission letter to both

the Blanchard Estate in San Antonio, Texas and the Trustee. Thus, as to whether

Buswell purposefully directed her business activities toward the State of Texas, the

answer, again, must be “yes.”

          In addition, it is in no way surprising, or unforeseeable that Buswell could be

haled into a Texas court for conduct relating to her investigation of Appellee’s

insurance claim and the ultimate decision to rescind a ten million dollar



52
     See Burger King, 471 U.S. at 476 n.18.
                                              21
($10,000,000) Texas life insurance policy. Likewise, it was reasonably foreseeable

that Buswell’s liability in a Texas court would be based on the laws that regulate the

business of insurance in the State of Texas, namely the Texas Insurance Code.

       Chapter 541, Subsection A of the Texas Insurance Code (“TIC”) prohibits any

“person” from engaging in deceptive practices in the business of insurance.53 The

term “person” in the TIC is defined as “any individual, corporation, association,

partnership…and any other legal entity engaged in the business of insurance,

including agents, brokers, adjusters and life insurance counselors.” 54 In Liberty Mut.

Ins. Co. v. Garrison Contractors, Inc.,55 the Texas Supreme Court specifically held

that the term “person” for the purpose of placing liability, includes individuals and

company employees who are engaged in the business of insurance.56 Hence, by

definition and pursuant to case law, Section 541.002 includes claim examiners and

investigators such as Buswell who engage in the business of insurance in Texas.

Fittingly, Section 541.003 provides for a private right of action against any person

who engages in unfair or deceptive acts in Texas in the business of insurance.57

       Buswell’s August 1, 2014 letter also stated that if the estate felt it was treated

unfairly, it should contact the Texas Department of Insurance, and provided the



53
   TEX. INS. CODE § 541.003.
54
   TEX. INS. CODE § 541.002(emphasis added).
55
   Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998).
56
   Id. at 486-87.
57
   TEX. INS. CODE § 541.003.
                                              22
estate with the Texas address. Had the estate contacted the Texas Department of

Insurance, and the department started an investigation, the department would surely

have the duty to defend or discipline the actions of Buswell. By including this in the

letter, Buswell and LSW could have foreseen being haled into a Texas court to

defend their investigation.

       Accordingly, Buswell is subject to individual liability under the Texas

Insurance Code for her wrongful acts and omissions in the investigation and

handling of Appellee’s claim for proceeds under a Texas life insurance policy.

       3. Buswell purposely availed herself of the privileges and benefits of
          conducting business in the State of Texas.

       “Purposeful availment” has been said to be the touchstone of the jurisdictional

due process analysis.58 There are three parts to a purposeful availment inquiry: (1)

only the nonresident defendant’s contacts with the forum are relevant; (2) the

contacts relied on must be purposeful rather than random, fortuitous, or attenuated;

and (3) the nonresident defendant must seek some benefit, advantage, or profit by

availing itself of the jurisdiction.59

       Buswell’s Texas contacts have met all three parts to a purposeful availment

inquiry. First, Buswell’s Texas contacts were purposefully directed toward Texas



58
   See Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 109 (1987); Burger King,
471 U.S. at 474.
59
   Id.
                                              23
and Buswell’s contacts with Texas are relevant because the State of Texas was

center stage where the insured, Jeff Blanchard had lived, where the application for

the Policy had been completed, where LSW is headquartered and had issued the

Policy and received the premiums, and where Blanchard’s physicians, hospitals and

medical records were located. With regard to the relevancy of the nonresident

Defendant Buswell’s activities, Texas is where Blanchard’s medical records and

Mr. Blanchard Policy’s application were located. Based upon review of these Texas

documents, Buswell participated in the decision to rescind the Policy. Texas is also

where Buswell’s August 1, 2014 letter that Buswell authored, signed, and sent to

the Blanchard Estate in Texas, to notify those holding Blanchard’s assets of the

rescission of the ten million dollar ($10,000,000) life insurance Policy.

         Therefore, with regard to the first purposeful availment inquiry, Buswell did

purposefully direct her contacts toward Texas and these contacts--her review of the

Texas medical records and application for the Policy—were relevant as the review

caused Buswell to recommend rescission of the Policy and to send the August 1,

2014 rescission letter to the Blanchard Estate in Texas.

         Buswell’s contacts also satisfy the second part of the purposeful availment

inquiry—that the contacts relied on must be meaningful and purposeful rather than

random, fortuitous, or attenuated. 60 The definition of “purposeful” is “having or


60
     See Carey III, 2010 Tex. App. LEXIS 5683, at *4.
                                               24
showing a particular purpose with determination”61 and “purpose” within that phrase

is defined as “an intended result, something for which effort is being made.” 62 By

these definitions, Blanchard’s review of the Texas medical records and Policy

application and active investigation of Appellee’s claim for life insurance policy

proceeds are contacts that are both meaningful and purposeful because they had a

particular purpose and an intended result—to determine whether the claim and

Policy should be honored or rescinded. Likewise, the resulting rescission letter sent

to Blanchard’s Estate in Texas was a purposeful contact because its intended result

was to inform the Estate of the decision not to pay the claim or honor the Policy and

to instead rescind the Policy.

      By no means can Buswell’s contacts be classified as: (1) “random,” defined

as “without a particular aim or purpose or principle,” 63or (2) fortuitous,” defined as

“happening by chance,” 64 or (3) “attenuated,” meaning “to make thin or weak”65

Buswsell’s contacts which were purposefully directed toward Texas formed a

substantial connection with the ultimate litigation and was the basis for it.

      Finally, Buswell’s Texas contacts meet the third part of the purposeful

availment inquiry—Buswell, the nonresident defendant, sought some benefit,



61
   OXFORD AMERICAN DICTIONARY 728 (HEALD COLLEGES ED. 1980).
62
   Id.
63
   Id. at 743.
64
   Id. at 344.
65
   Id. at 51.
                                          25
advantage, or profit by availing herself of the jurisdiction. 66 Namely, Buswell’s

continued employment with LSW hinged on her fulfillment of the assigned task of

investigating Appellee’s insurance claim. Moreover, the ultimate decision to rescind

the ten million dollar ($10,000,000) life insurance Policy—a decision wholly based

on Buswell’s investigation and review of the Texas medical records and the Policy

application as acknowledged in the August, 2014 rescission letter—also resulted in

a substantial benefit and advantage to Buswell’s employer, LSW, which was thereby

relieved from having to pay the ten million dollars ($10,000,000) in life insurance

policy proceeds owed under the Policy. At a minimum, Buswell’s conduct could not

have discouraged LSW’s continued employment of Buswell as a senior claim

examiner.

         Buswell’s Texas contacts satisfy all three parts of the purposeful availment

inquiry. As such, Buswell purposely availed herself of the privileges and benefits

of conducting business in the State of Texas and the trial court proper exercised

specific jurisdiction over Buswell.

         4. The trial court has specific jurisdiction over Buswell because the
            litigation arises from, relates to, and/or has substantial connection with
            Buswell’s minimum contacts with the State of Texas.

         One of the requirements of specific jurisdiction is that the litigation “arise

from or relate to” the minimum contacts with the forum state. This requirement lies


66
     See Coleman, 83 S.W.3d at 806; Burger King, 471 U.S. at 475.
                                               26
at the heart of specific jurisdiction by defining the required nexus between the

nonresident defendant, the litigation, and the forum state. 67 Simply stated, for

Buswell’s contacts to support the exercise of specific jurisdiction there must be a

substantial connection between those contacts and the operative facts of the

litigation, 68 and, here, such a connection does exist.

       This litigation undeniably arises out of at least one operative fact— the Policy

rescission. The decision to rescind was primarily, if not wholly, based on Buswell’s

contacts—Buswell’s review of the Texas medical records of Jeff Blanchard and her

review of the Policy application submitted to and maintained in LSW’s Texas

offices. Furthermore, the announcement and notice of rescission was expressly

authored by, signed, and sent by Buswell. CR 46-51.

       In sum, Buswell’s minimum contacts became the very core and foundation of

the litigation brought by Appellee, the Texas Trustee for the Blanchard 2013 Family

Trust. Without an investigation of the Texas medical records and the Policy

application by Buswell and the resultant announcement and notice of rescission by

Buswell, in part via a letter to the Blanchard Estate in San Antonio, Texas, there

would be no litigation. As to whether the causes of action, here, arise from, relate to,




67
   See Counter Intelligence, Inc. v. Calypso Waterjet Sys., Inc., 216 S.W.3d 512, 517 (Tex.
App.—Dallas 2007, no pet. h.).
68
   Id. at 517.
                                               27
and/or are substantially connected with Buswell’s minimum contacts with Texas,

the answer is a resounding “yes.”

      5. The trial court’s exercise of specific jurisdiction does not offend
         traditional notions of fair play and substantial justice

      “Fair play and substantial justice” is an element of due process. Under this

element the nonresident defendant bears the burden of raising “a compelling case

that the presence of some consideration would render jurisdiction unreasonable.”69

“[O]nly in rare cases will the exercise of jurisdiction not comport with fair play and

substantial justice.”70

      Several factors are relevant in determining whether the exercise of jurisdiction

over a nonresident defendant complies with traditional notions of fair play and

substantial justice. These factors include: (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 resolving the controversy efficiently, and (5) the shared interests of the various

states in furthering fundamental substantial social policies. 71

      Here, Appellant has not met her burden of raising “a compelling case that the

presence of some consideration would render jurisdiction unreasonable.”72

69
   Guardian Royal Exch., 815 S.W.2d at 231(quoting Rudzewicz, 471 U.S. at 477).
70
   Royal Mortgage Corp. v. Montague, 41 S.W.3d 721, 731 (Tex. App.—Fort Worth 2001, no
pet.) (emphasis added); see also Guardian Royal Exch., 815 S.W.2d at 231.
71
   See Rudzewicz, 471 U.S. at 477; Guardian Royal Exch., 815 S.W.2d at 231.
72
   Id.
                                           28
Appellant only argues factors (1) the burden on the defendant; and (3) the plaintiff’s

interest in obtaining convenient and effective relief.73 Neither of these arguments

gives this case the distinction of being called a “rare case” where the exercise of

special jurisdiction does not comport with fair play and substantial justice.

       Buswell will not be substantially burdened by having to defend a lawsuit in

Texas. Buswell complains that because she lives out-of-state, that the burden of

litigating in Texas is “understandably substantial.”74 This fact of non-residency in

Texas is not compelling. Non-residency in Texas does not cause an excessive burden

today as “modern transportation and communication have made it much less

burdensome for a party sued to defend himself in a State where he engages in

economic activity.” 75 This reason is unconvincing.

       With regard to factor number three, Buswell urges that complete and effective

relief can be obtained from her Texas employer, LSW, and that her presence adds

nothing to Appellee’s potential recovery. 76 Buswell’s argument misses the point.

Appellant’s suit is not just about a potential recovery—it is about accountability and

the protection of Texas consumers. Chapter 541 of the Texas Insurance Code

prevents insurance claim investigators, independent adjusters, and other persons



73
   See Appellant’s Brief at 11-12.
74
   See Appellant’s Brief at 11.
75
   Guardian Royal Exch., 815 S.W.2d at 231 (quoting McGee v. International Life Ins. Co., 355
U.S. 220, 223 (1957).
76
   See Appellant’s Brief at 12.
                                             29
engaged in the business of insurance in Texas from hiding behind their employer, or

the insurer, by imposing individual liability on persons like Buswell for their

wrongful acts and omissions in violation of the Insurance Code and Texas law.

Buswell cannot escape individual liability under the Insurance Code and Texas law

for her knowing conduct in the course of the investigation and settlement of

Appellee’s claim for life insurance policy benefits simply because she does not

reside within this State.

         Moreover, Buswell could reasonably foresee being sued in a Texas court and

is not substantially or unfairly burdened by having to defend this suit in Texas. As

to Appellant’s final point—that this suit will be more efficiently prosecuted without

the parties having to consult her schedule—this bears little, if any, weight on the

scales of fair play and substantial justice. Apart from the fact that LSW’s counsel

has indicated that Buswell may serve as the designated corporate representative for

LSW in the litigation, CR 72, Appellee does not believe that this argument warrants

any further response.

         Texas has a significant interest in adjudicating this dispute. Appellee

contends that Texas has a “strong interest” in resolving lawsuits arising from events

that occur in Texas.77 Traditionally, regulation of the “business of insurance” has




77
     See Royal MorgtageCorp., 41 S.W.3d at 736.
                                              30
been delegated to the states by the federal government. 78 Texas state courts have

implicitly recognized the role of that interest for purposes of determining personal

jurisdiction. 79 The Texas Supreme Court wrote that “a state’s regulatory interest in

a certain area or activity such as insurance is an important consideration in deciding

whether the exercise of jurisdiction is reasonable and that a state’s regulatory interest

may establish the reasonableness of jurisdiction upon a lesser showing of minimum

contacts than would otherwise be required.” 80

       Buswell has failed to meet her burden to prove a compelling case that the

exercise of specific jurisdiction over her does not comport with traditional notions

of fair play and substantial justice—it does.

       The balance of the above factors shows that this is not one of those rare cases

in “which the exercise of jurisdiction would offend traditional notions of fair play

and substantial justice. Rather, the trial court’s exercise of jurisdiction over Buswell

will not offend traditional notions of fair play and substantial justice and is consistent

with the constitutional requirements of due process. 81

       For all of these reasons, the trial court’s decision that it has specific

jurisdiction over Appellant Caroline Buswell is legally correct. In the unlikely event


78
   See McCarran-Ferguson Act, 15 U.S.C. § 1012.
79
   See First National Bank of Libby, Montana v. Rector, 710 S.W.2d 100, 106 (Tex. App.—
Austin 1986, writ ref’d n.r.e.);Texas Commerce Bank v. Interpol ’80 Ltd., 703 S.W.2d 765, 773-
74 (Tex. App.—Corpus Christi 1985 , no writ).
80
   Guardian Royal, 815 S.W.2d at 229.
81
   See Schlobohm v. Schapiro, 784 S.W.2d 355, 359 (Tex. 1990).
                                              31
that this Honorable Court is contemplating a decision to reverse the trial court’s order

rather than to affirm it, Appellant respectfully requests that it be given an opportunity

to take the oral deposition of Caroline Buswell for the limited purpose of questioning

Buswell regarding special appearance issues and to submit Appellee’s Supplemental

Brief.

                                       PRAYER

         The trial court’s order denying Appellant Caroline Buswell’s special

appearance should be affirmed. Appellee, The GWSPI Company LLC, Trustee of

the Jeffery P. Blanchard 2013 Family Trust, respectfully pray this Honorable Court

affirm the order of the trial court and award Appellee such other and further relief to

which it may be justly entitled.

                                   Respectfully Submitted:

                           BY:      /s/ J. Steve Mostyn
                                   J. Steve Mostyn
                                   jsmdocketefile@mostynlaw.com
                                   Gregory F. Cox
                                   gfcdocket@mostynlaw.com
                                   Caroline L. Maida
                                   clmaida@mostynlaw.com
                                   MOSTYN LAW
                                   3810 West Alabama St.
                                   Houston, Texas 77027
                                   713.714.0000 (Office)
                                   713.714.1111 (Facsimile)
                                   Counsel for Appellee, The GWSPI Company,
                                   LLC, Trustee of the Jeffrey P. Blanchard 2013
                                   Family Trust


                                           32
                         CERTIFICATE OF COMPLIANCE

      This brief complies with the type and volume limitation and requirements of
TEX. R. APP. P. 9.4(e) and TEX. R. APP. P. 9.4(i) because it contains 8,123 words,
excluding the parts of the brief exempted pursuant to TEX. R. APP. P. 9.4(i)(1). This
brief complies with these rules because the brief has been prepared in a
proportionally-spaced typeface using Microsoft Word 2010 software in Times New
Roman 14-point font in text and Times New Roman 12-point font in footnotes.

                                        /s/ J. Steve Mostyn
                                       J. Steve Mostyn
                                       Dated: August 31, 2015

                            CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the above and foregoing document was
forwarded to all counsel of record by the Electronic Filing Service Provider, if
registered on the parties listed below on the 31st day of August, 2015.

      Andrew G. Jubinsky
      andy.jubinsky@figdav.com
      Lance V. Clack
      Lance.clack@figdav.com
      FIGARI + DAVENPORT, LLP
      901 Main Street, Suite 3400
      Dallas, Texas 75202
      214.939.2000 (Office)
      214.939.2090 (Facsimile)
      Counsel for Appellant Caroline Buswell

                                        /s/ J. Steve Mostyn
                                       J. Steve Mostyn
                                       Dated: August 31, 2015




                                         33
