                                                                                                 ACCEPTED
                                                                                             03-15-00348-CV
                                                                                                     7134189
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
                                                                                        9/28/2015 5:14:21 PM
                                                                                           JEFFREY D. KYLE
                                                                                                      CLERK
                          No. 03-15-00348-CV
                ______________________________________
                                                                       FILED IN
                          COURT OF APPEALS           3rd COURT OF APPEALS
                 THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
                            AUSTIN, TEXAS            9/28/2015 5:14:21 PM

                ______________________________________ JEFFREY   D. KYLE
                                                             Clerk
                               TODD ENRIGHT,
                                    Appellant,
                                         v.
  ASCLEPIUS PANACEA, LLC; ASCLEPIUS PANACEA GP, LLC; DAILY
     PHARMACY, LLC; DAILY PHARMACY GP, LLC; AND TOTH
      ENTERPRISES II, P.A. D/B/A VICTORY MEDICAL CENTER,
                               Appellees.
                ______________________________________
                      REPLY BRIEF OF APPELLANT
                           TODD ENRIGHT
                  _________________________________________________

               On Appeal from the 98th Judicial District Court
                           of Travis County, Texas
                     Trial Court No. D-1-GN-14-004689
      Hon. Gisela D. Triana of the 200th Judicial District Court, Presiding
             __________________________________________

Thomas S. Leatherbury                         Jennifer B. Poppe
    State Bar No. 12095275                        State Bar No. 24007855
Vinson & Elkins LLP                           Jonah Jackson
2001 Ross Avenue, Suite 3700                      State Bar No. 24071450
Dallas, Texas 75201                           Vinson & Elkins LLP
Telephone: (214) 220-7700                     2801 Via Fortuna, Suite 100
Facsimile: (214) 999-7792                     Austin, Texas 78746
tleatherbury@velaw.com                        Telephone: (512) 542-8400
                                              Facsimile: (512) 542-8612
                                              jpoppe@velaw.com
                                              jjackson@velaw.com


                    Attorneys for Appellant Todd Enright

                                               ORAL ARGUMENT REQUESTED
                                        TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
ARGUMENT .............................................................................................................1
I.    VMC’s response fails to identify any evidence that is legally or
      factually sufficient to support the trial court’s implied findings of fact. ...........2
      A. The evidence that VMC rely on for their pre-transaction claims is
         legally and factually insufficient................................................................3
      B. The evidence of Enright’s contacts with Texas occurring after the
         transaction that VMC rely on is insufficient to support personal
         jurisdiction over Enright for their post-transaction claims. .......................5
II.   VMC also fail to demonstrate how the exercise of personal jurisdiction
      over Enright would satisfy due process guarantees. ..........................................9
      A. VMC’s allegations do not satisfy the requirement that Enright
         purposefully availed himself of any benefit of doing business in
         Texas. .........................................................................................................9
             1.     VMC misconstrue precedent in arguing that the alleged
                    communications between Enright and Franklin support
                    purposeful availment. .......................................................................10
             2.     VMC’s alleged evidence of a personal interest by Enright in
                    the TSA is insufficient to show Enright obtained any “benefit,
                    advantage, or profit” under Texas law. ............................................11
      B. VMC fail to demonstrate the necessary substantial connection
         between Enright’s Texas contacts and any alleged tortious
         conduct. ....................................................................................................12
             1.     All of the contacts with Texas by Enright identified by VMC
                    are unrelated to their post-transaction claims...................................13
             2.     A merits hearing is not required for a finding that Enright’s
                    Texas contacts are not substantially connected to any tortious
                    conduct because all of VMC’s claims fail as a matter of law. .........15
      C. VMC do not address or explain how their avoidance of mandatory
         jurisdiction in Massachusetts would comport with traditional
         notions of fair play and substantial justice...............................................15
CONCLUSION AND PRAYER .............................................................................17



                                                           i
CERTIFICATE OF COMPLIANCE.......................................................................18
CERTIFICATE OF SERVICE ................................................................................19




                                                   ii
                                   TABLE OF AUTHORITIES
Cases
BMC Software Belgium, N.V. v. Marchand,
 83 S.W.3d 789 (Tex. 2002)....................................................................................3
Camac v. Dontos,
  390 S.W.3d 398 (Tex. App.—Dallas 2012, reh’g denied) ................................3, 4
In re Int’l Profit Assocs., Inc.,
   274 S.W.3d 672 (Tex. 2009)................................................................................16
Kelly v. Gen. Interior Constr., Inc.,
  301 S.W.3d 653 (Tex. 2010)........................................................................ passim
Michiana Easy Livin’ Country, Inc. v. Holten,
  168 S.W.3d 777 (Tex. 2005)............................................................... 9, 10, 11, 15
Moki Mac River Expeditions v. Drugg,
 221 S.W.3d 569 (Tex. 2007)............................................................................9, 13
Moncrief Oil International Inc. v. OAO Gazprom,
 414 S.W.3d 142 (Tex. 2013)..............................................................................3, 4
TeleVentures, Inc. v. Int’l Game Tech.,
  12 S.W.3d 900 (Tex. App.—Austin 2000, pet. denied) ............................... 10, 11
Zac Smith & Co., Inc. v. Otis Elevator Co.,
  734 S.W.2d 662 (Tex. 1987)................................................................................11




                                                      iii
                                    ARGUMENT
      Appellees’ Brief (Response) fails to identify legally or factually sufficient

evidence in support of the trial court’s implied findings of fact and misapplies

established precedent concerning due process requirements. As a result, VMC1 are

unable to provide any ground to affirm the trial court’s assertion of personal

jurisdiction over Appellant Todd Enright (Enright). First, VMC rely on vague and

irrelevant evidence that does not amount to more than a scintilla of support for the

court’s implied findings that (1) Enright made misrepresentations to VMC in

relation to VMC’s purchase of two pharmacy locations from QVL2 or (2) Enright

took any action to interfere with the Transition Services Agreement (TSA) between

VMC and QVL after the transaction was completed. Second, VMC’s unpersuasive

argument that Enright’s contacts with Texas satisfy the purposeful availment

requirement and are substantially connected to VMC’s claims is based on VMC’s

misreading of the Texas Supreme Court’s and this Court’s precedent.

      Because (1) the trial court’s order is not supported by evidence in the record,

and (2) the exercise of jurisdiction over Enright would violate due process, this

Court should reverse the order denying Enright’s special appearance and dismiss

1
 Consistent with Enright’s opening brief, Appellees Asclepius Panacea, LLC; Asclepius
Panacea GP, LLC; Daily Pharmacy, LLC; Daily Pharmacy GP, LLC; and Toth
Enterprises II, P.A. d/b/a Victory Medical Center are referred to collectively as “VMC.”
2
  Consistent with Enright’s opening brief, Defendants QVL Pharmacy #181 GP, LLC;
QVL Pharmacy #162 GP, LLC; and QVL Pharmacy Holdings, Inc. a referred to
collectively as “QVL.”


                                           1
VMC’s claims against Enright for lack of personal jurisdiction. See Kelly v. Gen.

Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex. 2010).


I.    VMC’s response fails to identify any evidence that is legally or factually
      sufficient to support the trial court’s implied findings of fact.
      VMC’s Response relies on unsupported assertions and implausible

inferences to defend the trial court’s erroneous order. As set forth in Enright’s

opening brief and ignored in VMC’s Response, the evidence before the court was

insufficient to support the court’s assertion of personal jurisdiction over Enright.

The Texas long-arm statute, requires that the defendant’s acts “giving rise” to the

claims occurred in Texas.3 Kelly, 301 S.W.3d at 660. When challenged by the

defendant, the plaintiff “must . . . present evidence that the [defendant]’s relevant

acts (i.e., those connected to [plaintiff]’s claims) occurred, at least in part, in

Texas.” Id. at 660-61. With respect to both their pre-transaction claims (fraud and

securities fraud) and post-transaction claims (tortious interference, conversion,

money had and received, and action for accounting), there is insufficient evidence




3
  The undisputed fact that Enright is not a resident of Texas is by itself sufficient to
negate personal jurisdiction because VMC failed to explain in their pleadings, other than
through conclusory statements, how any of the allegedly tortious conduct took place in
Texas. See Kelly, 301 S.W.3d at 658-59 (“If the plaintiff fails to plead facts bringing the
defendant within reach of the long-arm statute (i.e., for a tort claim, that the defendant
committed tortious acts in Texas), the defendant need only prove that it does not live in
Texas to negate jurisdiction.”).


                                            2
to support the court’s implicit conclusion, that any relevant contact occurred in

Texas.4


       A.     The evidence that VMC rely on for their pre-transaction claims is
              legally and factually insufficient.
       In arguing Enright is subject to specific jurisdiction under the long-arm

statute, VMC erroneously rely on Moncrief Oil International Inc. v. OAO

Gazprom, 414 S.W.3d 142 (Tex. 2013), and Camac v. Dontos, 390 S.W.3d 398

(Tex. App.—Dallas 2012, reh’g denied). Resp. Br. at 15-16. In both cases, the

plaintiffs provided evidence showing that the defendants committed multiple acts

within Texas that were the basis of the plaintiffs’ claims. See Moncrief, 414

S.W.3d at 154 (holding that evidence “the Gazprom Defendants attended the two

Texas meetings where they accepted the alleged trade secrets regarding a proposed

Texas joint venture, which is the crux of the matter,” satisfied the Texas long-arm

statute); Camac, 390 S.W.3d at 408, 411 (finding sufficient evidence that the

defendant committed relevant acts in Texas based on “specific allegations” of

misrepresentations and fraudulent statements during meetings in Texas and




4
  When, as here, the trial court does not issue findings of fact or conclusions of law, “all
facts necessary to support the judgment and supported by the evidence are implied.”
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). However,
the trial court’s implied findings are not conclusive, and “may be challenged for legal and
factual sufficiency.” Id.


                                             3
“constant and systematic calls and e-mails to and from Texas regarding the

acquisition” (emphasis added)).

      The evidence relied on by VMC lacks both the specificity and weight of the

evidence supporting personal jurisdiction in Moncrief and Camac. Unlike those

two cases, the sole basis for personal jurisdiction on the pre-transaction claims is

the   testimony   of    a   single    witness   that   Enright     made    unspecific

“misrepresentations” in unidentified phone calls.       Resp. Br. at 17.     Neither

Moncrief nor Camac stands for the proposition that vague and unspecific

allegations of “misrepresentations” are legally sufficient evidence to support the

assertion of personal jurisdiction. The Texas Supreme Court has made clear that

alleging claims of wrongdoing without providing evidence that the defendant’s

relevant acts occurred in Texas is insufficient to bring the defendant within the

reach of the long-arm statute. Kelly, 301 S.W.3d at 656-57, 659.

      VMC’s allegation of “fraudulent misrepresentations Enright made on

multiple phone calls about the sale and how the TSA would be carried out” is not

supported by the evidence.        Resp. Br. at 17.     VMC’s limited evidence—a

conclusory affidavit by Franklin—provides little more than a bare assertion that

Enright made fraudulent representations. App. Br. at 28-29. In his affidavit,

Franklin only vaguely discusses the general content of his calls with Enright and




                                         4
does not identify a single specific statement by Enright.5 App. Br. at 28-29.

VMC’s claim that “Franklin’s affidavit details the fraudulent misrepresentations”

is belied by Franklin’s actual quotes from that affidavit. Resp. Br. at 17. Alleged

statements by Enright that VMC’s future drug purchases would be “no trouble” or

that their deposits would be made into a lockbox hardly qualify as

misrepresentations, let alone specific misrepresentations. CR438-39 (¶¶ 5, 6). Nor

do VMC offer any documentary or corroborating evidence of alleged

misrepresentations. Thus, the evidence of a tortious act “in Texas” is both legally

and factually insufficient to support personal jurisdiction over Enright for the pre-

transaction claims.


      B.     The evidence of Enright’s contacts with Texas occurring after the
             transaction that VMC rely on is insufficient to support personal
             jurisdiction over Enright for their post-transaction claims.
      VMC’s Response also fails to identify any tortious post-transaction conduct

by Enright that took place in Texas. There is no evidence that Enright tortiously

interfered with the TSA or that he took any action in Texas that could plausibly




5
  VMC’s claim that Enright did not sufficiently deny Franklin’s assertions is incorrect.
Resp. Br. at 16-17. Enright’s denial is implicit in his testimony that the conversations
never even took place. CR210 (¶ 6). Moreover, VMC’s implication that Enright tacitly
admitted something by failing to respond to Franklin’s testimony is disingenuous—
Enright’s affidavit was drafted and filed before VMC ever submitted Franklin’s
testimony.


                                           5
relate to VMC’s tortious interference claim.6 Because the record does not contain

sufficient evidence that Enright committed any tortious act, let alone a tortious act

in Texas as required by the Texas long-arm statute, the exercise of jurisdiction is

improper. See Kelly, 301 S.W.3d at 659.

      First, VMC failed to address and apparently do not dispute that (1) QVL did

not have any credit available when the check was presented, and (2) Enright had no

power as an individual to extend or withhold credit. App. Br. at 30-31. As

explained in Enright’s opening brief, QVL’s ability to pay any debt through its line

of credit, including payments to VMC, depended on at least two factors—(1) the

availability of credit, and (2) the approval of two people at White Winston to

advance that credit. App. Br. at 31. Thus, Enright’s communications with QVL,

which is the sole focus of VMC’s argument, are not evidence of any tortious

conduct. VMC’s secondary argument, that Enright had “control” over QVL, and

this “control” gave him the power as an individual to extend or withhold credit

from QVL, is equally irrelevant. Resp. Br. at 16-18; 24-25. The bare assertion

that Enright had “control”—without any further explanation—is no evidence of

that Enright tortiously prevented QVL from paying VMC through actions in Texas.

6
 In addition to tortious interference, VMC assert claims for conversion and money had
and received. Resp. Br. at 30-31. It is unsurprising that VMC are unable to point to any
evidence to support personal jurisdiction over these claims, because the record is
completely devoid of any evidence that Enright “exercised dominion or control” over
VMC’s property or that he “holds money” that belongs to VMC anywhere, let alone in
Texas. Id.


                                           6
      Second, even if Enright’s conduct were somehow tortious, VMC have failed

to explain how Enright’s conduct has any relevant connection with Texas. VMC’s

arguments that there is ample evidence of Enright’s acts within Texas completely

miss the mark. It is not sufficient to allege both that a tort was committed and that

the nonresident defendant had various contacts with Texas to confer jurisdiction,

unless the “acts giving rise to [the] claims occurred in Texas.” Kelly, 301 S.W.3d

at 669-60 (holding that although the contract was to be performed exclusively in

Texas and the defendants sent and directed payments to Texas, received invoices

from Texas, and visited Texas, the nonresident defendant was not subject to

jurisdiction in Texas because these contacts were insufficient to show that the

defendant “committed any tortious acts in Texas”). Enright’s communications

with QVL in Texas, which consist of discussions of QVL’s requests for advances

on its line of credit and discussions related to Franklin’s threats to sue Enright and

his employer, White Winston, are not even a scintilla of evidence, let alone

factually sufficient evidence, to satisfy Kelly.

      In their Response, VMC allege that Enright “personally directed QVL’s

agents in Texas on how to carry out the TSA, including: (a) what charges QVL

was to bill VMC for; (b) what amounts of VMC’s funds should be paid and when;

and (c) what ‘game plan’ QVL’s attorney in Texas should execute to explain

withholding VMC’s funds.”         Resp. Br. at 16.    Additionally, VMC point to



                                           7
Enright’s alleged “supervision and direction of QVL’s attorney, Montgomery,

Gonzales and Collins in connection with the TSA,” as well as “2014 emails

wherein [Enright] gave QVL’s attorney and the bookkeepers specific directions on

what amounts to pay VMC and when, and what to tell VMC about the TSA.” Id.

at 18. VMC’s claim that the evidence in the record supports these speculative

conclusions is simply not borne out by the actual content of Enright’s

communications. Far from the Machiavellian interpretation imputed by VMC, the

communications reflect QVL’s discussions with its creditor, White Winston, about

how to manage its credit facility and pay its debts, including those to VMC.

Enright was involved in those discussions as White Winston’s agent, and these

communications are no evidence that Enright personally interfered with the TSA,

let alone that he interfered in Texas.

      As in Kelly, VMC have failed to show that a tortious act was committed in

Texas. Kelly, 301 S.W.3d at 660. In fact, the evidence establishes the opposite—

that Enright could not have interfered with the TSA because QVL’s payments to

VMC depended on factors outside Enright’s control and took place entirely outside

of the State of Texas.




                                         8
II.   VMC also fail to demonstrate how the exercise of personal jurisdiction
      over Enright would satisfy due process guarantees.
      Even assuming that VMC’s conclusory factual assertions were all true, the

exercise of jurisdiction over Enright in Texas is still improper because it would

violate due process guarantees. VMC’s arguments provide no support for the trial

court’s erroneous conclusion that Enright purposefully availed himself of the

privilege of conducting activities in Texas and that VMC’s claims arise from or

relate to Enright’s contacts.    See Moki Mac River Expeditions v. Drugg, 221

S.W.3d 569, 576 (Tex. 2007).          Finally, even if the minimum contacts and

substantial relation requirements were satisfied, VMC’s blatant attempt to avoid

mandatory jurisdiction in Massachusetts through artful pleading is a violation of

the “traditional notions of fair play and substantial justice.” See id. at 575 (citation

omitted).


      A.     VMC’s allegations do not satisfy the requirement that Enright
             purposefully availed himself of any benefit of doing business in
             Texas.
      VMC make two errors in arguing that Enright purposefully availed himself

of the privilege of doing business in Texas. Resp. Br. at 21-26. First, VMC

erroneously rely on contacts other than those between Enright and the forum state.

Resp. Br. at 21-22. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d

777, 785 (Tex. 2005) (holding “it is only the defendant’s contacts with the forum



                                           9
that count”). And second, VMC fail to establish that Enright “availed” himself of

the jurisdiction by “seek[ing] some benefit, advantage, or profit.” Id.


             1.     VMC misconstrue precedent in arguing that the alleged
                    communications between Enright and Franklin support
                    purposeful availment.

      VMC contravene Michiana and TeleVentures when they rely on

communications      between   QVL’s     president,   Chad    Collins      and   VMC’s

representative, Dr. Franklin. Resp. Br. at 21. Both Michiana and TeleVentures

plainly hold that this Court should focus solely on the contacts between Enright

and Texas—and not on the contacts between Texas and any third-parties, such as

Collins or Franklin. See Michiana, 168 S.W.3d at 785; TeleVentures, Inc. v. Int’l

Game Tech., 12 S.W.3d 900, 912 (Tex. App.—Austin 2000, pet. denied) (holding

the focus “in analyzing minimum contacts for purposes of Texas courts’ specific

jurisdiction” is “on the relationship among the nonresident defendant, the forum,

and the litigation”).

      As VMC concede, Enright did not initiate contact with Franklin in Texas.

That contact was initiated by Chad Collins and QVL. Resp. Br. at 21; see App. Br.

at 16; CR362 (deposition of Collins, in which he states that he spoke with Franklin

initially, and then they organized a conference call with Enright). VMC’s attempt

to distinguish this case from Michiana and TeleVentures, in which both courts held

that the defendant’s contacts did not show purposeful availment when the


                                         10
defendant did not initiate the transaction, misses the mark. The critical factor in

Michiana was not that the plaintiff initiated the contact, but rather that someone

other than the defendant did. See Michiana, 168 S.W.3d at 793-94; see also

TeleVentures, 12 S.W.3d at 912. In this case, VMC concede that Collins and QVL

initiated the contact with White Winston, and thus Enright’s contacts with Texas in

relation to the transaction do not constitute purposeful availment.7


              2.     VMC’s alleged evidence of a personal interest by Enright in the
                     TSA is insufficient to show Enright obtained any “benefit,
                     advantage, or profit” under Texas law.

       VMC’s assertion that Enright had a personal interest in the TSA is pure

speculation and, in any event, is insufficient to prove Enright obtained “some

benefit, advantage, or profit” under Texas law, as required to meet the purposeful

availment requirement. Michiana, 168 S.W.3d at 785, 789-90 (discussing cases

finding specific jurisdiction when the contacts were “aimed at getting extensive

business in or from the forum state”); see also Zac Smith & Co., Inc. v. Otis

Elevator Co., 734 S.W.2d 662, 664-66 (Tex. 1987) (finding that the defendant

“purposefully availed” itself of the benefits and protections of the laws of Texas

when the contract was formed “for the sole purpose of building a hotel in Texas”).



7
 In fact, Collins testified that he initiated the contact at Franklin’s request, CR346 (¶ 6),
but even if Collins initiated the contact on his own volition, under Michiana, Collins’s
unilateral action cannot support a finding of purposeful availment by Enright.


                                             11
      VMC point to the following facts as indications that Enright had a personal

interest in the transaction:

              Enright once referred to QVL’s Austin location as “our licensed

                store.” Resp. Br. at 22.

              Enright did not copy Collins on an email to Franklin following their

                phone call. Id.

              “Enright was not an employee, officer, or owner of White Winston,”

                but instead works as a consultant. Id. at 23.

      The inferential leap required to conclude from that evidence that Enright has

a personal stake in QVL is incredible and does not provide any basis to conclude

that Enright purposefully availed himself of Texas. One ambiguous email and the

structure of Enright’s employment agreements do not amount to even a scintilla of

evidence that Enright sought to obtain the type of “benefit, advantage, or profit”

that Texas courts have required to confer specific jurisdiction over a nonresident

defendant.


      B.      VMC fail to demonstrate the necessary substantial connection
              between Enright’s Texas contacts and any alleged tortious
              conduct.
      VMC spend a great deal of their Response listing alleged contacts that

Enright had with Texas, but completely fail to explain how those contracts are

substantially connected to VMC’s claims. To exercise specific jurisdiction over a


                                           12
nonresident defendant, there must be a “substantial connection between [the

defendant’s] contacts and the operative facts of the litigation.” Moki Mac, 221

S.W.3d at 585.     VMC’s recitation of contacts fails to provide the necessary

substantial connection for two reasons. First, Enright’s contacts with Texas are

unrelated to the facts underlying VMC’s post-transaction claims.           Second,

Enright’s contacts with Texas cannot be substantially related to any tortious

conduct—either pre- or post-transaction claims—because all of VMC’s claims fail

as a matter of law. And contrary to VMC’s contention, such a holding does not

require a full merits hearing.


             1.     All of the contacts with Texas by Enright identified by VMC are
                    unrelated to their post-transaction claims.

      VMC devote most of their Response to either focusing on conduct that

occurred outside of Texas or to listing various contacts by Enright with Texas that

are unrelated to the facts underlying VMC’s post-transaction claims—namely, that

White Winston prevented QVL from making payments to VMC. VMC’s list of

alleged contacts by Enright with Texas divides into four categories: (1) Enright

traveled to Texas; (2) Enright communicated with QVL employees; (3) Enright

gave instructions to QVL regarding VMC’s funds; and (4) Enright “controlled”

QVL. Resp. Br. at 24-31.




                                        13
       The first two categories of alleged contacts do include contacts between

Enright and Texas, but these contacts are unrelated to the alleged torts, which

concern conduct related to White Winston’s administration of QVL’s credit

facility.   Enright pointed out—and VMC did not dispute—that “business

communications with QVL and VMC and a handful of trips” are “not substantially

connected to the alleged torts.” App. Br. at 20. In their Response, QVL adds

nothing to connect these Texas contacts to the alleged tortious conduct.

       As to the third category of alleged contacts, the few contacts that could

conceivably be related to the post-transaction claims took place outside of Texas.

See App. Br. at 20. The allegations regarding instructions to QVL about VMC’s

funds are unrelated to any contacts with Texas, as the credit advances and

requested credit all were made available through an account located in Boston. See

id.

       Regarding the fourth category, VMC’s focus on Enright’s alleged “control”

over QVL is irrelevant as VMC fail to connect this “control” to their claim that

Enright interfered with QVL’s payments by failing to authorize credit advances.

Thus, even if Enright’s contacts demonstrate he had “control” over QVL, these

contacts are unconnected to the actual substance of the claim and, therefore, fail

the substantial connection requirement for personal jurisdiction.




                                         14
             2.    A merits hearing is not required for a finding that Enright’s
                   Texas contacts are not substantially connected to any tortious
                   conduct because all of VMC’s claims fail as a matter of law.

      Contrary to VMC’s assertion, this Court is not required to conduct a merits

hearing in order to determine that Enright’s special appearance should be granted

because VMC’s claims all fail as a matter of law. Without conducting a merits

hearing, other Texas courts have evaluated whether a nonresident defendant may

defeat jurisdiction by proving there was no tort. See e.g., Michiana, 168 S.W.3d

at 790-91 (holding “[p]ersonal jurisdiction is a question of law for the court, even

if it requires resolving questions of fact”). As Enright has already set forth in his

opening brief and as explained above in Part I, VMC have failed to allege, let alone

produce, any evidence of fraud or damages proximately caused by Enright’s

conduct. See App. Br. at 23-26. Without any evidence of a tort, VMC provide no

basis for the trial court to have concluded that there was a “substantial connection”

between VMC’s claims and Enright’s contacts as required by due process.


      C.     VMC do not address or explain how their avoidance of
             mandatory jurisdiction in Massachusetts would comport with
             traditional notions of fair play and substantial justice.
      Finally, VMC’s Response does not address the violation of traditional

notions of fair play and substantial justice inherent in their transparent attempt to

avoid mandatory jurisdiction in Massachusetts by recasting their contract claims

against White Winston as tort claims against Enright individually. Instead, VMC


                                         15
spend their Response complaining that Enright did not address some of the factors

that courts have used in this analysis.

      Traditional notions of fair play and substantial justice are not served through

permitting VMC to sue Enright (a New Hampshire resident) in his individual

capacity in Texas, when the underlying claims are based on contracts with forum-

selection clauses designating Massachusetts as the jurisdiction for suit. These

concerns are strongly implicated here, in a case in which VMC have transformed

contract claims into tort claims and failed to sue White Winston—all in an attempt

to avoid mandatory jurisdiction in Massachusetts. But VMC do not even attempt

to defend their actions to avoid the forum selection clauses at issue, presumably

because they know that it is indefensible. The Texas Supreme Court has declined

to follow a “slavish adherence” to the distinction between contract and tort claims,

because “to hold to the contrary would allow a litigant to avoid a forum-selection

clause with ‘artful pleading.’” In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 677

(Tex. 2009) (citation omitted). Such “artful pleading” is evident in the case here.

The notions of fair play and substantial justice do not support allowing VMC

through “artful pleading” to avoid submitting to jurisdiction in Massachusetts at

the expense of haling Enright to Texas to bear the cost of cross-country litigation

over claims based on agreements in which the parties agreed to jurisdiction in

Massachusetts.



                                          16
                          CONCLUSION AND PRAYER
      Enright respectfully prays that this Court:

      1.   Reverse the district court and grant Enright’s special appearance;

      2.   Dismiss VMC’s claims against Enright for lack of personal jurisdiction;

      3.   Award Enright the costs of this action; and

      4. Grant such other and additional relief to which Enright has shown

himself to be justly entitled, whether at law or in equity.

                                        Respectfully submitted,

                                        VINSON & ELKINS LLP

                                           /s/ Jennifer B. Poppe
                                           Thomas S. Leatherbury
                                           State Bar No. 12095275
                                           2001 Ross Avenue, Suite 3700
                                           Dallas, Texas 75201
                                           Telephone: (214) 220-7700
                                           Facsimile: (214) 999-7792
                                           tleatherbury@velaw.com

                                           Jennifer B. Poppe
                                           State Bar No. 24007855
                                           Jonah Jackson
                                           State Bar No. 24071450
                                           2801 Via Fortuna, Suite 100
                                           Austin, Texas 78746
                                           Telephone: (512) 542-8400
                                           Facsimile: (512) 542-8612
                                           jpoppe@velaw.com
                                           jjackson@velaw.com

                                        Attorneys for Appellant Todd Enright



                                          17
                      CERTIFICATE OF COMPLIANCE
      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this brief contains 3,821 words, excluding the words not included in the word

count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer

generated document created in Microsoft Word, using 14-point typeface for all

text, except footnotes which are in 13-point typeface. In making this certificate of

compliance, I am relying on the word count provided by the software used to

prepare the document.



                                      /s/ Jennifer B. Poppe
                                      Jennifer B. Poppe




                                        18
                          CERTIFICATE OF SERVICE
        The undersigned certifies that on the 28th day of September 2015, a true and

correct copy of this brief was served on the following attorneys in accordance with

the requirements of the Texas Rules of Appellate Procedure via electronic filing

and email.


        Eric J. Taube
        Paul Matula
        Taube Summers Harrison Taylor Meinzer Brown, LLP
        100 Congress Avenue, 18th Floor
        Austin, Texas 78701
        etaube@taubesummers.com
        pmatula@taubesummers.com

                                       /s/ Jennifer B. Poppe
                                       Jennifer B. Poppe




                                         19
US 3785106v.9
