                                        /

                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-11-00187-CV

DEIRDRE HALE,
                                                             Appellant
v.

SHEILA RICHEY,
                                                             Appellee



                            From the 278th District Court
                               Madison County, Texas
                           Trial Court No. 10-12565-278-10


                            MEMORANDUM OPINION


         This is an accelerated interlocutory appeal of the trial court’s denial of Deirdre

Hale’s special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West

2008).

                                     BACKGROUND

         George Baker Richardson, professionally known as George Richey, was a

“nationally renowned” country music songwriter and musician who wrote such songs
as “The Grand Tour” and “Picture of Me Without You.”1 He was the father of three

children, including Hale, whom he had adopted in 1963. He was married to Tammy

Wynette until her death in 1998.

       In 2001, George married Sheila Richey, and they lived together until his death on

July 31, 2010. After George’s death, Sheila Richey (hereafter “Richey”) filed suit against

Hale for defamation, public disclosure of private facts, and intentional infliction of

emotional distress. Richey alleged that after George’s death, she

       began to receive information via the internet and written publications that
       were outrageously false, defamatory, and extremely distressing to her,
       causing her anguish, embarrassment, and humiliation, especially, given
       her grief over the loss of her husband approximately two months before.
       One such national publication, printed on October 13, 2010, directly
       quoted Defendant Deirdre Hale as its source. In proffering these
       slanderous statements to the publication, Defendant knew or should have
       reasonably known that she created an unreasonable risk that such
       statements would be communicated to other parties.

Regarding the trial court’s exercise of personal jurisdiction over Hale, a California

resident, Richey’s original petition stated that Hale committed the pleaded torts in

whole, or in part, in Texas.

       Hale filed an unsworn special appearance on January 20, 2011, alleging that

Texas lacked personal jurisdiction over her. On February 10, she then filed a “First

Supplemental Special Appearance” with an attached affidavit that verified the facts set

forth in the special appearance. Hale argued in the special appearance that Richey

alleged she committed a tort in the State of Texas, giving Texas long-arm jurisdiction

over her, but that Richey did not state specifically the facts supporting this allegation.

       1   The facts in this paragraph and the next are drawn from Sheila Richey’s first amended petition.

Hale v. Richey                                                                                      Page 2
Hale also averred in her affidavit that she is not a Texas resident and resides in

California; she does not maintain a place of business in Texas; she does not maintain a

registered agent for service in Texas; she does not maintain an office, mailing address,

telephone number, or bank account in Texas; and she has never committed a tort in

Texas.

         The hearing on Hale’s special appearance was scheduled for February 18 at 10:00

a.m. At 9:45 a.m. on February 18, Richey filed her response to Hale’s special appearance

and her first amended petition, all in one document. Richey stated in her response that

although Hale listed in her affidavit numerous facts regarding general jurisdiction, the

only sentence addressing the court’s specific jurisdiction (i.e., that Hale had never

committed a tort in Texas) was both legal argument and false. Richey asserted that in

addition to making statements regarding her to a national publication that is “sold at

almost every grocery store in Texas,” Hale also made defamatory statements about her

to at least one relative in Texas via telephone and text message and that she used

facebook.com as a medium to defame Richey to multiple recipients whom she knew to

be in Texas.     Richey further stated, “Of great significance is the fact that these

statements arose regarding a Wynette Trust that is located and administered in Texas,

the administration of which was a target for her defamatory statements regarding

Plaintiff.” The first amended petition was identical to the original petition except for

the following additional allegations:

              11.  Defendant Hale, a beneficiary of the Wynette Trust, also
         made defamatory statements regarding Plaintiff’s involvement in the


Hale v. Richey                                                                    Page 3
       Wynette Trust, through George Richardson. The Wynette Trust is located
       and administered in Madisonville, Texas.

              12.   Plaintiff has also learned that Defendant has used both
       facebook.com, telephone calls, and text messaging to defame Plaintiff to
       residents and family members in Texas.

       At the end of the hearing at which the parties presented no evidence, the trial

court stated, “I have already decided what I’m going to do. I’m going to overrule the

motion, overruling the special appearance.” Approximately one week after the special

appearance hearing, Hale filed a first supplemental affidavit, specifically denying the

factual allegations in Richey’s original and first amended petitions. Then on April 15,

2011, the trial court signed an order stating as follows: “On February 18, 2011, the

Court considered the Defendant’s Special Appearance, and ORDERS:              The Special

Appearance is DENIED.”

                                   APPLICABLE LAW

 A.    Standard of Review

       Whether a court has personal jurisdiction over a nonresident defendant is a

question of law; thus, we review a trial court’s determination of a special appearance de

novo. Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010); Kelly v. Gen. Interior

Constr., Inc., 301 S.W.3d 653, 657 (Tex. 2010). When, as here, a trial court does not issue

findings of fact or conclusions of law to support its special-appearance determination,

we presume that all factual disputes were resolved in favor of the trial court’s ruling.

Spir Star, 310 S.W.3d at 871-72; Kelly, 301 S.W.3d at 657.




Hale v. Richey                                                                       Page 4
 B.    Personal Jurisdiction

       A court may assert personal jurisdiction over a nonresident defendant only if the

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

Texas long-arm statute are satisfied. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996)

(orig. proceeding); see U.S. CONST. amend. XIV, § 1; TEX. CIV. PRAC. & REM. CODE ANN. §

17.042 (West 2008). Under the long-arm statute, Texas courts can exercise personal

jurisdiction over a nonresident defendant who “does business” in Texas. TEX. CIV.

PRAC. & REM. CODE ANN. § 17.042; BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,

795 (Tex. 2002). The statute lists three activities that constitute “doing business” in

Texas: (1) contracting with a Texas resident when either party is to perform the contract

in whole or in part in Texas; (2) committing a tort in whole or in part in Texas; and (3)

recruiting Texas residents for employment inside or outside of Texas. TEX. CIV. PRAC. &

REM. CODE ANN. § 17.042.       But the statute also provides that “other acts” by the

nonresident may constitute “doing business” in Texas, id., and the Texas Supreme

Court has repeatedly interpreted this broad statutory language to reach “as far as the

federal constitutional requirements for due process will allow.” Spir Star, 310 S.W.3d at

872. Therefore, the requirements of the Texas long-arm statute are satisfied if the

exercise of personal jurisdiction comports with federal due process limitations. Id.

       The U.S. Constitution permits a state to assert personal jurisdiction over a

nonresident defendant when two conditions are met: (1) the defendant has established

minimum contacts with the forum state; and (2) the exercise of jurisdiction comports

with traditional notions of fair play and substantial justice. BMC Software, 83 S.W.3d at

Hale v. Richey                                                                         Page 5
795. Minimum contacts are sufficient for personal jurisdiction when the nonresident

defendant “purposefully avails itself of the privilege of conducting activities within the

forum state, thus invoking the benefits and protections of its laws.” Michiana Easy Livin’

Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (quoting Hanson v. Denckla, 357

U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958) (emphasis added)). There are

three parts to a purposeful availment inquiry: (1) only the nonresident defendant’s

contacts with the forum are relevant, not the unilateral activity of another party or a

third person; (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. Moki Mac Expeditions v. Drugg,

221 S.W.3d 569, 575 (Tex. 2007); Michiana, 168 S.W.3d at 784-85.

       A nonresident defendant’s minimum contacts may give rise to either specific

jurisdiction or general jurisdiction. Moki Mac, 221 S.W.3d at 575. For a court to exercise

specific jurisdiction over a nonresident defendant, two requirements must be met: (1)

the nonresident defendant’s contacts with the forum state must be purposeful; and (2)

the cause of action must arise from or relate to those contacts.        Am. Type Culture

Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).       The minimum-contacts

analysis for specific jurisdiction focuses on the relationship among the defendant, the

forum, and the litigation.    Moki Mac, 221 S.W.3d at 575-76.        In contrast, general

jurisdiction is present when a defendant’s contacts in a forum are continuous and

systematic so that the forum may exercise personal jurisdiction over the defendant even



Hale v. Richey                                                                       Page 6
if the cause of action did not arise from or relate to activities conducted within the

forum state. BMC Software, 83 S.W.3d at 796.

 C.    Shifting Burdens

              Our special-appearance jurisprudence dictates that the plaintiff and
       the defendant bear shifting burdens of proof in a challenge to personal
       jurisdiction. We have consistently held that the plaintiff bears the initial
       burden to plead sufficient allegations to bring the nonresident defendant
       within the reach of Texas’s long-arm statute. See [Retamco Operating, Inc. v.
       Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009)]; Moki Mac, 221
       S.W.3d at 574; Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801,
       807 (Tex. 2002); BMC Software, 83 S.W.3d at 793; McKanna v. Edgar, 388
       S.W.2d 927, 930 (Tex. 1965). Once the plaintiff has pleaded sufficient
       jurisdictional allegations, the defendant filing a special appearance bears
       the burden to negate all bases of personal jurisdiction alleged by the
       plaintiff. E.g., Retamco Operating, 278 S.W.3d at 337. Because the plaintiff
       defines the scope and nature of the lawsuit, the defendant’s corresponding
       burden to negate jurisdiction is tied to the allegations in the plaintiff’s
       pleading.

              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. See Siskind v. Villa Found. for
       Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982) (“[T]he only evidence offered to
       negate jurisdiction was [a defendant’s] testimony that she and the other
       individuals were residents of Arizona. . . . In view of [the plaintiff’s]
       failure to allege any act by these individuals in Texas, we believe that the
       [defendants] have sustained their burden.”). When the pleading is wholly
       devoid of jurisdictional facts, the plaintiff should amend the pleading to
       include the necessary factual allegations, see TEX. R. CIV. P. 63, thereby
       allowing jurisdiction to be decided based on evidence rather than
       allegations, as it should be.

              The defendant can negate jurisdiction on either a factual or legal
       basis. Factually, the defendant can present evidence that it has no contacts
       with Texas, effectively disproving the plaintiff’s allegations. The plaintiff
       can then respond with its own evidence that affirms its allegations, and it
       risks dismissal of its lawsuit if it cannot present the trial court with
       evidence establishing personal jurisdiction. Legally, the defendant can
       show that even if the plaintiff’s alleged facts are true, the evidence is

Hale v. Richey                                                                          Page 7
       legally insufficient to establish jurisdiction; the defendant’s contacts with
       Texas fall short of purposeful availment; for specific jurisdiction, that the
       claims do not arise from the contacts; or that traditional notions of fair
       play and substantial justice are offended by the exercise of jurisdiction.

Kelly, 301 S.W.3d at 658-59 (footnotes omitted).

                                     DISCUSSION

 A.    Richey’s Burden to Plead Sufficient Allegations

       We begin with Hale’s fourth issue, in which she argues that Richey failed to

allege sufficient facts that, if true, would permit the trial court to exercise personal

jurisdiction over her, and Hale’s fifth issue, in which she argues that Richey failed to

timely and properly amend her operative pleading so as to meet her jurisdictional

burden.

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

nonresident defendant within the reach of Texas’s long-arm statute. Kelly, 301 S.W.3d at

658.   The plaintiff’s petition as well as her response to the defendant’s special

appearance can be considered in determining whether the plaintiff satisfied her burden.

Wikert v. Year One, Inc., 320 S.W.3d 522, 524 (Tex. App.—Dallas, 2010, no pet.); Touradji

v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no

pet.); see TEX. R. CIV. P. 120a(3). Hale argues here, however, that Richey’s first amended

petition, filed only fifteen minutes before the scheduled special-appearance hearing and

in the same document with her response, should not be considered in determining

whether Richey alleged sufficient facts to permit the trial court to exercise personal

jurisdiction over her because the filing violated Rules of Civil Procedure 46 and 63.


Hale v. Richey                                                                         Page 8
       Rule 46 requires every petition and answer to be contained in one instrument of

writing. See TEX. R. CIV. P. 46. But a complaint about the failure to comply with Rule 46

is forfeited on appeal by the failure to make the trial court aware of the complaint. See

TEX. R. APP. P. 33.1(a)(1). Hale did not complain to the trial court about Richey’s first

amended petition not being contained in one instrument of writing, instead

complaining of it for the first time on appeal. Thus, we conclude that Hale has failed to

preserve this complaint for review. See id.

       Hale also complains that the amended petition was untimely because it was not

filed at least seven days before the special-appearance hearing as required by Rule 63,

which states:

       Parties may amend their pleadings, respond to pleadings on file of other
       parties, file suggestions of death and make representative parties, and file
       such other pleas as they may desire by filing such pleas with the clerk at
       such time as not to operate as a surprise to the opposite party; provided,
       that any pleadings, responses or pleas offered for filing within seven days
       of the date of trial or thereafter, or after such time as may be ordered by
       the judge under Rule 166, shall be filed only after leave of the judge is
       obtained, which leave shall be granted by the judge unless there is a
       showing that such filing will operate as a surprise to the opposite party.

TEX. R. CIV. P. 63. Assuming without deciding that Rule 63 required Richey to file her

amended petition at least seven days before the special-appearance hearing or to obtain

leave from the trial judge to file the amended petition within seven days of the hearing,

we conclude that Hale also forfeited this complaint about the untimeliness of Richey’s

amended petition.

       At the beginning of the hearing, Hale’s counsel commented on the timing of

Richey’s response to the special appearance but raised no complaint.          She stated,

Hale v. Richey                                                                        Page 9
“Judge, I did just get their response so I haven’t read it, so I don’t really know what it

says. But as far as our motion goes, our position is basically this.” Hale’s counsel then

proceeded to argue her position and concluded: “And I guess maybe I will let them tell

me the response.” The trial court then took time to read “the pleading” after which the

following exchange occurred:

               THE COURT: What do you claim was said that was slanderous?
       It’s not in the petition.

              [Richey’s Counsel No. 1]: I have also updated. I don’t know if
       Your Honor got a copy this morning. It was an amended petition. I can
       hand you this one.
              Your Honor, it’s a few things, but most of it has to do,
       unfortunately, with the death of George Richey and how that was
       handled. And, frankly, the worst thing that was said without quoting was
       that my client defrauded the estate through George Richey and very
       specifically did certain acts to Mr. Richey while he was alive. Completely
       inaccurate, completely false and completely defamatory.

              [Richey’s Counsel No. 2]: To hasten his death and bring about ill
       health so he would die.

              [Richey’s Counsel No. 1]: We have amended to tighten up those
       facts. My apology for the short response, but we got a valid motion from
       them on the 8th, just ten days ago, an affidavit attached.

At that time, Hale’s counsel made no objection to the filing of the amended petition,

asserted no claim of surprise, nor requested a continuance to properly respond to the

amended petition. See TEX. R. APP. P. 33.1(a)(1); Gardner v. Best Western Int’l, Inc., 929

S.W.2d 474, 478 (Tex. App.—Texarkana 1996, writ denied) (“The trial court’s action in

considering an amended pleading may cure the failure to obtain leave, if there is no

showing of surprise to the opposing party.”).      Instead, Hale relied on the original

affidavit attached to her “First Supplemental Special Appearance” filed before the

Hale v. Richey                                                                      Page 10
special-appearance hearing. Thus, Hale’s complaint about the untimeliness of Richey’s

amended petition and response was not preserved for our review, and we will consider

Richey’s first amended petition in determining whether she alleged sufficient facts to

permit the trial court to exercise personal jurisdiction over Hale. See TEX. R. APP. P.

33.1(a)(1); Gardner, 929 S.W.2d at 478. We overrule Hale’s fifth issue.

       Richey alleged in her first amended petition and response to Hale’s special

appearance that Hale made slanderous statements regarding her to a national

publication that is “sold at almost every grocery store in Texas.” Richey stated that the

publication, printed on October 13, 2010, directly quoted Hale as its source. Richey

alleged that in proffering these statements to the publication, Hale “knew or should

have reasonably known that she created an unreasonable risk that such statements

would be communicated to other parties.”

       Richey further alleged that Hale made defamatory statements through telephone

calls and text messaging to residents and family members in Texas and that Hale used

facebook.com as a medium to defame her to multiple recipients whom she knew to be

in Texas.    Richey claimed that the alleged defamatory statements were about the

administration of the Wynette Trust and Richey’s involvement in the Wynette Trust

through her husband. Richey stated that Hale is a beneficiary of the Wynette Trust and

that the Wynette Trust is located and administered in Madisonville, Texas.




Hale v. Richey                                                                    Page 11
        Regarding Richey’s allegations that Hale made defamatory statements to

residents and family members in Texas via telephone calls and text messaging,2 Hale

argues that the allegations are insufficient to show that she purposefully availed herself

of the privilege of conducting activities within Texas because Richey provided “no

details or pertinent information regarding the purported extent, content, volume,

nature, timing, or other particulars of Hale’s alleged use” of telephone calls or text

messages to defame Richey to persons located in Texas. Hale contends that far more

detailed and specific allegations have been deemed insufficient to warrant the exercise

of specific personal jurisdiction over a nonresident defendant. She cites McIntosh v.

Gilley, 753 F. Supp. 2d 46 (D.D.C. 2010),3 Marsh v. Marsh, 241 S.W.3d 570 (Tex. App.—El

Paso 2007, no pet.),4 Linton v. Johnson, No. 5-10-CV-00585 OG (NN), 2011 WL 1743677


        2 Because we ultimately conclude that these specific allegations are sufficient to bring Hale within

the reach of Texas’s long-arm statute, we need not reach the issue of whether the allegations regarding
making slanderous statements about Richey to a national publication and using facebook.com as a
medium to defame Richey to recipients in Texas, if true, constituted minimum contacts with Texas. See
TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(2) (“[A] nonresident does business in this state if the
nonresident . . . commits a tort in whole or in part in this state.”) (emphasis added).

        3  In McIntosh, Gary McIntosh sued David and Linda Gilley, alleging that they committed libel by
sending an email to McIntosh’s commanding officer in the U.S. Navy, which claimed that McIntosh was
harassing their daughter through his attempts to procure repayment of his investments in a business. 753
F. Supp. 2d at 51-53. “[A]fter considering the jurisdictional allegations in the Complaint, McIntosh’s
opposition, and David & Linda Gilley’s affidavits,” the court held that McIntosh “failed to allege specific,
non-conclusory allegations that establish[ed] personal jurisdiction over David & Linda Gilley under the
District’s long-arm statute.” Id. at 59. The court noted that McIntosh’s Complaint did not allege where
David and Linda Gilley created and sent the email at issue. Id. at 58. Furthermore, although McIntosh’s
opposition stated that the email “ruined [his] Naval career from the District of Columbia” and that
“injury was caused by emails sent from D.C.,” these statements were merely conclusory. Id. at 58-59.
McIntosh did not explain how he knew that the email was sent from the District and did not support the
assertion in an affidavit; whereas, both David and Linda Gilley disavowed by affidavit “engag[ing] in
any communication with the Plaintiff’s superior officers within the District of Columbia or any other
jurisdiction.” Id.

        4  In Marsh, Curtis Marsh, a Texas attorney, sued his stepmother, Sharon Marsh, an Illinois
resident, for tortious interference with business and contractual relationships, tortious interference with

Hale v. Richey                                                                                      Page 12
(W.D. Tex. May 5, 2011),5 and Dukatt v. Dukatt, --- S.W.3d ---, ---, 2011 WL 2120794, at *5

(Tex. App.—Dallas May 31, 2011, pet. denied).6 These cases are distinguishable from

the present case.

        First, the Marsh and Dukatt courts emphasized the fact that the only contact with

Texas that the nonresident defendant had in each of those cases was a single telephone

call. See Dukatt, 2011 2120794, at *5; Marsh, 241 S.W.3d at 576-77. Here, Richey alleges

more than one contact. She claimed that Hale made defamatory statements to residents

and family members in Texas through “telephone calls[] and text messaging.”

Moreover, while these contacts may still be minimal, in analyzing minimum contacts, it

is not the number, but rather the quality and nature of the nonresident defendant’s



prospective business relationships, slander and defamation, invasion of privacy, and intentional infliction
of emotional distress. 241 S.W.3d at 572. All of the claims arose from Curtis’s efforts to purchase an
Illinois title company owned by his father and Sharon’s alleged interference with the purchase. Id.
Sharon filed a special appearance, and the trial court granted it. Id. at 573. On appeal, Curtis argued that
Sharon was amenable to specific jurisdiction because she made a telephone call from Illinois to Curtis’s
wife in Texas and Curtis’s claims against Sharon arose from that call. Id. at 576. The El Paso court
disagreed. Citing Michiana, 168 S.W.3d at 784, the court explained that “the only issue in deciding the
specific jurisdiction issue is whether by making this single telephone call Sharon purposefully availed
herself of the privileges and benefits of conducting activities within Texas, thus invoking the benefits and
protections of its laws.” Marsh, 241 S.W.3d at 576. The court concluded that “this single contact does not
evidence the ‘purposeful availment’ necessary for finding specific jurisdiction.” Id. at 577.

         5 In Linton, Douglas L. Johnson and Johnson & Johnson, L.L.P. represented two separate clients in

two California cases. 2011 WL 1743677, at *1. In the first case, the Johnson defendants represented Jo
Armuth, and John Linton was a defendant. Id. In the second case, the Johnson defendants represented
Nancy Lee Grahn. Linton was not a party to the Grahn case but was financially tied to the business
entities sued in the Grahn case. Id. Linton argued that the court had specific jurisdiction over the
Johnson defendants because the “[d]efendants directed a serious, purposeful and extensive set of
communications to Texas, to engage in business transactions with a Texas domiciliary.” Id. at *2.
Specifically, Linton complained about ten telephone calls and forty emails about settling the Grahn
lawsuit. Id. at *3. The court held that these allegations did not support specific jurisdiction in Texas
because the communications were substantially related to California litigation, not Texas. Id.

        6  Relying on Marsh, the Dallas court in Dukatt also concluded that an Arizona defendant’s single
telephone call to the Dallas Police Department did not demonstrate that he was amenable to specific
jurisdiction. --- S.W.3d at ---, 2011 WL 2120794, at *5.

Hale v. Richey                                                                                      Page 13
contacts with the forum state that is important. Guardian Royal Exch. Assurance, Ltd. v.

English China Clays, P.L.C., 815 S.W.2d 223, 230 n.11 (Tex. 1991)). Hale argues that

“nothing Richey has ever alleged demonstrates Hale purposefully availed herself of the

laws of the state of Texas by seeking a benefit, advantage, or profit in this form [sic].”

We disagree. Accepting Richey’s allegations as true, Hale was clearly seeking a benefit,

advantage, or profit in Texas by making defamatory statements about the

administration of a trust and about Richey’s involvement in a trust that is located and

administered in Texas and of which she is a beneficiary. Cf. Marsh, 241 S.W.3d at 572

(no specific jurisdiction where Illinois resident’s telephone call to Texas was about

purchase of Illinois business).

       Next, unlike in McIntosh and Linton, Richey alleges specific acts connecting Hale

with the forum and the litigation. See Moki Mac, 221 S.W.3d at 575-76 (“[W]hen specific

jurisdiction is alleged, we focus the minimum-contacts analysis on the ‘relationship

among the defendant, the forum[,] and the litigation.’”).      Richey alleges that Hale

contacted residents and family members in Texas through telephone calls and text

messaging and that in these contacts, Hale made defamatory statements about Richey’s

involvement in the Wynette Trust and the administration of the Wynette Trust, which is

located and administered in Texas and of which Hale is a beneficiary. These alleged

defamatory statements form the basis for Richey’s claims, at least in part. Accordingly,

we conclude that Richey’s allegations, if true, would constitute minimum contacts with

Texas such that Texas could exercise personal jurisdiction over Hale. See Morrill v.

Cisek, Nos. 01-03-01336-CV, 01-04-00266-CV, 2005 WL 2123714, at *3 (Tex. App.—

Hale v. Richey                                                                     Page 14
Houston [1st Dist.] Aug. 31, 2005, pet. denied) (mem. op.) (holding that defendant had

sufficient minimum contacts with Texas to subject her to personal jurisdiction where

there was direct relationship between defendant, her purposeful contacts with

plaintiff’s employer and others located in Texas, and plaintiff’s defamation claim). 7 We

thus hold that Richey has pleaded sufficient allegations to bring Hale within the reach

of Texas’s long-arm statute. We overrule Hale’s fourth issue.

  B.    Hale’s Burden to Negate All Bases of Personal Jurisdiction Alleged by Richey

        We next turn to Hale’s sixth issue in which she argues that she presented

sufficient evidence to meet her jurisdictional burden, to defeat Richey’s allegations, and

to preclude the trial court’s exercise of personal jurisdiction over her.

        Once the plaintiff has pleaded sufficient jurisdictional allegations, the defendant

filing a special appearance bears the burden to negate all bases of personal jurisdiction

alleged by the plaintiff. Kelly, 301 S.W.3d at 658. Hale relies on her first supplemental

affidavit to show that she met this burden.                       Richey responds that Hale’s first

supplemental affidavit was not timely filed and, thus, should not be considered.

        First, we must address Hale’s argument that Richey’s complaint about the timing

of the first supplemental affidavit is forfeited because she never objected to it in the trial

court. Hale’s first supplemental affidavit was filed in the trial court, but it was not

brought to the court’s attention. The court did not request it, and the record does not

indicate that it was ever submitted to the consideration of the judge. Thus, it was not

        7 McIntosh is also distinguishable because the court’s analysis in that case was not limited to the
legal question of whether the plaintiff’s allegations, even if true, were sufficient to permit the trial court to
exercise personal jurisdiction over the nonresident defendant. Instead, the McIntosh court was also
examining the plaintiff’s and defendant’s evidence, or lack thereof. See McIntosh, 753 F. Supp. 2d at 58-59.

Hale v. Richey                                                                                          Page 15
evidence before the court that required an objection. See In re Cont’l Ins. Co., 994 S.W.2d

423, 427 (Tex. App.—Waco 1999, orig. proceeding) (“An affidavit that is simply filed

with the clerk and is in no way brought to the trial court’s attention is not evidence.”);

see also Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 870 (Tex. App.—Houston [14th

Dist.] 2004, no pet.) (“Since the late-filed affidavit was not properly before the trial court

pursuant to 120a, it makes no sense to penalize Tempest for failing to obtain a ruling

from the trial court on its objection to the very filing of which it complains. Had

appellees requested leave of court to re-open the evidence in a subsequent hearing to

add the tardy affidavit, Tempest at least would have been given the right to present

controverting evidence and cross-examine. As it is, appellees have gotten in the last

word while Tempest was silenced by section 120a.”). Richey may urge her complaint

even though she did not object to the first supplemental affidavit.

       Furthermore, we agree with Richey that Hale’s first supplemental affidavit was

untimely and, therefore, not properly before the trial court and should not be

considered. Rule 120a states, “The affidavits, if any, shall be served at least seven days

before the hearing.” TEX. R. CIV. P. 120a(3). Here, Hale’s first supplemental affidavit

was filed six days after the special appearance hearing. The record does not show when

it was served, but it was not signed and notarized until February 23, 2011, five days

after the hearing; thus, it could not have been served until at least that time.

       Hale argues, “Richey’s decision to file her response moments before the hearing,

and reveal it to the trial court only after the hearing began, precluded Hale from filing

an affidavit which entirely negates Richey’s jurisdictional allegations any earlier.” As

Hale v. Richey                                                                         Page 16
we held above, Hale’s complaints about the untimeliness of Richey’s amended petition

and response were not preserved for our review and do not justify her late-filed

affidavit. See TEX. R. APP. P. 33.1(a)(1); see also Tempest Broad. Corp., 150 S.W.3d at 869-70

(holding affidavit filed after hearing should not be considered even though trial court

requested a reply from defendants and plaintiff did not file its response and first

amended petition containing additional jurisdictional allegations until day before

hearing). Hale’s first supplemental affidavit was not properly before the trial court and

should not be considered.

       Excluding the first supplemental affidavit, Hale’s remaining evidence consists of

her original affidavit attached to her “First Supplemental Special Appearance” filed

before the special-appearance hearing. In the original affidavit, Hale stated under oath

that she is not a Texas resident and resides in California. If Richey had failed to plead

facts bringing Hale within reach of the long-arm statute, this evidence that Hale does

not live in Texas would be sufficient to negate jurisdiction. However, because we

concluded above that Richey has pleaded sufficient allegations to bring Hale within the

reach of Texas’s long-arm statute, Hale must negate all bases of personal jurisdiction

alleged by Richey. See Kelly, 301 S.W.3d at 658-59.

       Richey has alleged that the court should exercise personal jurisdiction over Hale

based on specific jurisdiction.    The only statement in Hale’s original affidavit that

attempts to negate Richey’s allegations of specific jurisdiction is that she has never

committed a tort in Texas. Richey argues that this statement is conclusory and, thus,

should not be considered. We agree. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.

Hale v. Richey                                                                         Page 17
1984) (holding that affidavit must set forth facts, not mere legal conclusions); Wright v.

Sage Eng’g, Inc., 137 S.W.3d 238, 250 n.8 (Tex. App.—Houston [1st Dist.] 2004, pet.

denied). Rule 120a requires that the affidavits, if any, “shall set forth specific facts as

would be admissible in evidence.” TEX. R. CIV. P. 120a(3).

          For the foregoing reasons, we thus conclude that Hale did not satisfy her burden

to negate all bases of personal jurisdiction alleged by Richey and overrule Hale’s sixth

issue.8

  C.      Trial Court’s Denial of Hale’s Special Appearance

          Finally, we address Hale’s first three issues in which she contends generally that

the trial court committed reversible error in denying her special appearance; that as a

California resident, her constitutional right to due process was violated by the trial

court’s exercise of personal jurisdiction over her; and that the trial court erred in

concluding that it had specific personal jurisdiction over her. In light of our holdings

above, we overrule these issues.

                                          CONCLUSION

          Having overruled all Hale’s issues, we affirm the trial court’s order denying her

special appearance.



                                                        REX D. DAVIS
                                                        Justice


         In her brief, Hale notes on several occasions that Richey never introduced any evidence.
          8

Because Hale did not satisfy her burden to negate all bases of personal jurisdiction alleged by Richey,
Richey was never required to present her own evidence affirming her allegations. See Kelly, 301 S.W.3d at
659.

Hale v. Richey                                                                                   Page 18
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 11, 2012
[CV06]




Hale v. Richey                                 Page 19
