                                                                                      ACCEPTED
                                                                                  04-15-00398-CV
                                                                      FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                             9/21/2015 4:09:50 PM
                                                                                   KEITH HOTTLE
                                                                                           CLERK

                          NO. 04-15-00398-CV

CAROLINE BUSWELL,                   §                     IN THE    FOURTH
                                                                FILED  IN
                                                         4th COURT OF APPEALS
                                    §                     SAN ANTONIO, TEXAS
             Appellant,             §                    09/21/2015 4:09:50 PM
v.                                  §                        KEITH E. HOTTLE
                                    §                             Clerk
THE GWSPI COMPANY LLC AS            §             COURT OF APPEALS IN
SUCCESSOR IN INTEREST TO            §
WILMINGTON TRUST, NA,               §
TRUSTEE OF THE JEFFREY P.           §
BLANCHARD 2013 FAMILY TRUST,        §
                                    §
             Appellee.              §              SAN ANTONIO, TEXAS



                 APPELLANT’S REPLY BRIEF




                                        Andrew G. Jubinsky
                                        Texas Bar No. 11043000
                                        andy.jubinsky@figdav.com
                                        Lance V. Clack
                                        Texas Bar No. 24040694
                                        lance.clack@figdav.com

                                        FIGARI + DAVENPORT, LLP
                                        901 Main Street, Suite 3400
                                        Dallas, Texas 75202
                                        (214) 939-2000
                                        (214) 939-2090 (Fax)

                                        ATTORNEYS FOR APPELLANT
                                        CAROLINE BUSWELL
               IDENTITY OF PARTIES AND COUNSEL

Appellant                                Trial and Appellate Counsel

CAROLINE BUSWELL                         Andrew G. Jubinsky
                                         Texas Bar No. 11043000
                                         andy.jubinsky@figdav.com
                                         Lance V. Clack
                                         Texas Bar No. 24040694
                                         lance.clack@figdav.com

                                         FIGARI + DAVENPORT, LLP
                                         901 Main Street, Suite 3400
                                         Dallas, Texas 75202
                                         (214) 939-2000
                                         (214) 939-2090 (Fax)


Appellee                                 Trial and Appellate Counsel

THE GWSPI COMPANY LLC AS                 J. Steve Mostyn
SUCCESSOR IN INTEREST TO                 jsmdocketefile@mostynlaw.com
WILMINGTON TRUST, NA, TRUSTEE OF         Caroline L. Maida
THE JEFFREY P. BLANCHARD 2013            clmaida@mostynlaw.com
FAMILY TRUST
                                         THE MOSTYN LAW FIRM
                                         3810 West Alabama St.
                                         Houston, Texas 77027
                                         (713) 861-6616
                                         (713) 861-8084 (Fax)




                                   -i-
                                         TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
         A.       The Two Contacts Alleged by Appellee are Insufficient to
                  Confer Personal Jurisdiction. ................................................................ 2

                  1.        The alleged contacts are insufficient to create specific
                            jurisdiction. ................................................................................. 3

                  2.        The alleged contacts do not show purposeful availment. ........... 5

                  3.        Buswell could not have reasonably anticipated being
                            haled into Court in Texas. ........................................................... 6

         B.       Kelly is Controlling. .............................................................................. 6

         C.       Finding That Buswell is Subject to Jurisdiction Offends
                  Traditional Notions of Fair Play and Substantial Justice. ................... 11

PRAYER ..................................................................................................................11
CERTIFICATE OF COMPLIANCE ....................................................................... 12
CERTIFICATE OF SERVICE ................................................................................ 13




                                                            -ii-
                                   TABLE OF AUTHORITIES

                                                                                                     Page(s)

Cases
Baker v. City of Robinson,
  305 S.W.3d 783 (Tex. App.—Waco 2009, pet. denied) ...................................... 3

BMC Software Belgium, N.V. v. Marchand,
  83 S.W.3d 789 (Tex. 2002)................................................................................... 2

Carey v. State,
  2010 WL 2838631 (Tex. App.—San Antonio, July 21, 2010, pet. denied) ...3, 11

Fjell Tech. Group v. Unitech Int’l, Inc.,
   2015 Tex. App. LEXIS 966, 2015 WL 457805 (Tex. App.—Houston
   [14th Dist.] Feb. 3, 2015, pet. filed) .....................................................7, 9, 10, 11

Jordan v. Standard Acc. Ins. Co.,
   339 S.W.2d 267 (Tex. Civ. App.—Beaumont 1960, no writ) .............................. 5

Kelly v. General Interior Const., Inc.,
   301 S.W. 3d 653 (Tex. 2010)............................................................2, 3, 4, 6, 7, 8

Klenk v. Bustamante,
   993 S.W.2d 677 (Tex. App.—San Antonio 1998, no pet.) .................................. 5

Michiana Easy Livin’ Country, Inc. v. Holten,
  168 S.W.3d 777 (Tex. 2005) ........................................................................7, 8, 9

Retamco Operating, Inc. v. Republic Drilling Co.,
   278 S.W.3d 333 (Tex. 2009) ............................................................................7, 9

Southern Underwriters v. Gallagher,
   136 S.W.2d 590 (Tex. 1940) ................................................................................ 5

Willis v. Marshall,
   401 S.W.3d 689 (Tex. App.—El Paso 2013, no pet.) .......................................... 3




                                                      -iii-
                                      INTRODUCTION 1

         Appellee bears the burden of showing that Buswell is subject to jurisdiction

in Texas. In its brief (“Appellee’s Brief”), Appellee does not contend that

“general” jurisdiction exists but rather argues that “specific” jurisdiction exists

based on two contacts: first, Buswell, while in Tennessee, reviewed “Texas

documents” and LSW relied on those documents when deciding to rescind the life

insurance policy due to misrepresentations on the application for insurance; and

second, Buswell sent a single letter to the Estate in San Antonio. [Appellee’s Brief,

p. 4, 20.] 2 The law is clear that a non-resident defendant is not subject to specific

jurisdiction in Texas merely because she reviewed documents originating from

Texas, and a single letter to the Estate, which is not a party to this lawsuit, does not

give rise to specific jurisdiction.

         In addition, Appellee argues that Buswell “purposely availed herself of the

privileges and benefits offered by Texas while conducting her business in Texas,”

that Buswell could have anticipated being sued in Texas, and that the exercise of

jurisdiction over Buswell does not offend traditional notions of fair play and

substantial justice. These arguments fail as well. The law is clear that Buswell is

1
    Defined terms herein have the same meaning as those set forth in Appellant’s Brief.
2
  Appellee has substantially changed its position from the Trial Court, where it argued that
Buswell’s violations of the Texas Insurance Code subjected her to jurisdiction. Apparently
recognizing that its theory below was legally insupportable, Appellee has now shifted its focus to
the “Texas documents,” a phrase that appears several times in Appellee’s Brief, but not once in
Appellee’s Trial Court response to Buswell’s special appearance.



APPELLANT’S REPLY BRIEF – Page 1
not subject to jurisdiction in Texas, and therefore the Trial Court’s ruling should be

reversed.

                                   ARGUMENT

A.    The Two Contacts Alleged by Appellee are Insufficient to Confer
      Personal Jurisdiction.

      A Texas court may only exercise personal jurisdiction over a nonresident

defendant when (1) the plaintiff has established that defendant had minimum

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

traditional notions of fair play and substantial justice. See, e.g., Kelly v. General

Interior Const., Inc., 301 S.W. 3d 653, 657 (Tex. 2010); BMC Software Belgium,

N.V. v. Marchand, 83 S.W.3d 789, 795-96 (Tex. 2002). Appellee concedes that

personal jurisdiction requires: (1) minimum contacts; (2) purposeful availment; and

(3) reasonably forseeability that the defendant could be haled into a Texas court.

[Appellee’s Brief, p. 17.]

      In this case, Appellee alleges only two contacts: Buswell’s review of “Texas

documents”; and Buswell’s letter to the Estate in San Antonio. [Appellee’s Brief,

p. 4, 20.] These contacts are insufficient to create specific jurisdiction. Further,

Appellee’s allegations, even if true, do not show that Buswell purposefully availed

herself of the benefits of doing business in Texas or reasonably anticipated being




APPELLANT’S REPLY BRIEF – Page 2
haled into a Texas court. As a result, Buswell is not subject to jurisdiction, and the

Trial Court should be reversed. 3

       1.      The alleged contacts are insufficient to create specific jurisdiction.

       First, Buswell’s letter to the Estate is irrelevant for jurisdictional purposes.

The Estate is not a party to this lawsuit and has not brought any claims against

Buswell. In order for a contact to give rise to specific jurisdiction, it must give rise

to an asserted claim. Kelly, 301 S.W. 3d at 657. None of Appellee’s claims arise

from Buswell’s letter to the Estate. Appellee’s assertion that Buswell’s letter to the

Estate contained “actionable misrepresentations” 4 misses the point. Even assuming

the letter is “actionable,” which it is not, such an action must be brought by the

Estate. Baker v. City of Robinson, 305 S.W.3d 783 (Tex. App.—Waco 2009, pet.

denied) (holding that only the party to whom a misrepresentation was made could

sue for the misrepresentation); see also Willis v. Marshall, 401 S.W.3d 689 (Tex.

App.—El Paso 2013, no pet.). As such, the letter cannot be the basis for any claim

brought by Appellee. Id.



3
  Appellee spends several pages arguing that it has met its burden to plead jurisdictional facts and
that Buswell must do more than simply establish non-residence, relying on Carey v. State, 2010
WL 2838631 (Tex. App.—San Antonio, July 21, 2010, pet. denied). This is a red herring.
Buswell has disproven all of the alleged grounds for jurisdiction. She has proven, by
uncontroverted and verified evidence, that she did not take any action in Texas, and has shown
that the contacts alleged by Appellee, if true, are insufficient to establish jurisdiction.
4
  The letter informed the Estate that the Policy had been rescinded and gave the reasons for the
rescission. These statements were not “actionable misrepresentations,” and Appellee’s claim to
the contrary is barely colorable.



APPELLANT’S REPLY BRIEF – Page 3
       Rather, Appellee’s claims are based on a letter sent to a predecessor trustee

in New York. Appellee’s assertion that “the letter was mailed to a non-party . . . is

entirely irrelevant,” misunderstands the entire nature of specific jurisdiction. In the

specific jurisdiction analysis, the contact is only relevant if it gives rise to the

lawsuit. Kelly, 301 S.W. 3d at 657 (“[s]pecific jurisdiction arises when . . . the

cause of action arises from or is related to those contacts or activities.”) Buswell’s

letter to the Estate did not give rise to any claims asserted by Appellee.

Accordingly, it cannot be the basis for specific jurisdiction. Kelly, 301 S.W. 3d at

657.

       Second, Buswell cannot become subject to jurisdiction in Texas merely

because she reviewed documents created or originating in Texas. The “Texas

documents” consist of Mr. Blanchard’s medical records and his life insurance

application. [Appellee’s Brief, p. 4.] The only evidence in the Record is that

Buswell simply reviewed these records from her place of work in Tennessee.

There is no evidence that she traveled to Texas to review them. [CR 25.] The idea

that specific jurisdiction can be created over an out-of-state defendant merely

because the defendant reviewed a document originating in Texas is absurd, and

was expressly rejected in Kelly. Id. at 655-656 (holding that officers were not

subject to specific jurisdiction, even though they reviewed invoices originating in

Texas). Moreover, Appellee’s claims do not arise from Buswell’s review of the



APPELLANT’S REPLY BRIEF – Page 4
Texas documents, but from LSW’s rescission of the Policy. Simply put, this

alleged contact does not give rise to Appellee’s claim, and cannot form the basis

for specific jurisdiction. For this reason alone, the Trial Court should be reversed.

      2.     The alleged contacts do not show purposeful availment.

      “To establish minimum contacts with the forum state, the defendants must

have purposefully availed themselves of the privilege of conducting activities

within the forum state, thus enjoying the benefits and protections of its laws.”

Klenk v. Bustamante, 993 S.W.2d 677, 681 (Tex. App.—San Antonio 1998, no

pet.), abrogated on other grounds by BMC Software. As Appellee concedes, the

defendant “must seek some benefit, advantage, or profit by availing itself of the

jurisdiction.” [Appellee’s Brief, p. 23.]

      Appellee argues that Buswell “purposefully availed” herself of the

jurisdiction because her employer is based in Texas and because her employer

benefited from the rescission. [Appellee’s Brief, p. 25-26.] This is insufficient.

First, while LSW may be domiciled in Addison, Texas, Buswell lives and works in

Tennessee, and there is no evidence that she derived some benefit from the laws of

Texas while working for LSW in another state. See, e.g., Jordan v. Standard Acc.

Ins. Co., 339 S.W.2d 267, 269 (Tex. Civ. App.—Beaumont 1960, no writ) (holding

that an employee hired by a Texas entity to perform work in another state could not

claim the protection of Texas laws); Southern Underwriters v. Gallagher, 136




APPELLANT’S REPLY BRIEF – Page 5
S.W.2d 590 (Tex. 1940). Second, the fact that LSW may have benefited from

Buswell’s work does not show that Buswell derived some benefit from contacts

directed to Texas. In short, there is no evidence that Buswell sought some benefit,

advantage, or profit, from Texas.

      3.     Buswell could not have reasonably anticipated being haled into Court
             in Texas.

      Appellee’s assertion that Buswell could have reasonably anticipated being

haled into a Texas court begins with a misstatement of fact that vitiates the entire

argument. Appellee states: “Buswell was tasked with investigating the Texas life

insurance claim submitted by the Texas Trustee of the Blanchard Family Trust.”

[Appellee’s Brief, p. 21.] At the time of her investigation, however, it is undisputed

that the Trustee of the Blanchard Family Trust was domiciled in New York. [CR

25] [Appellee’s Brief, p. 2.] Buswell could not have reasonably anticipated that her

work in Tennesee would result in her being sued in Texas, merely because an

insured lived in Texas. This is especially true here, where the owner and

beneficiary was domiciled in New York.

B.    Kelly is Controlling.

      Appellee attempts to distinguish Kelly by arguing that the plaintiff in that

case failed to allege that any of the individual defendant’s wrongdoing occurred in

Texas, and failed “to plead jurisdictional facts tying [the individual defendant’s]

torts to Texas.” [Appellee’s Brief, p. 12.] Appellee then argues that it has “tied”



APPELLANT’S REPLY BRIEF – Page 6
Buswell’s alleged wrongdoing to Texas, relying on Retamco Operating, Inc. v.

Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009), Michiana Easy Livin’

Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005), and Fjell Tech. Group v.

Unitech Int’l, Inc., 2015 Tex. App. LEXIS 966, 2015 WL 457805 (Tex. App.—

Houston [14th Dist.] Feb. 3, 2015, pet. filed). [Appellee’s Brief, p. 13-14.]

Appellee misreads the allegations in Kelly, Michiana supports Buswell’s position,

and Appellee’s reliance on Retamco and Fjell is misplaced.

      In Kelly, there is no question that the plaintiff pled facts “tying” the

individual defendant’s conduct to Texas. The essence of the plaintiff’s claim was

that the individual defendant misappropriated trust funds owed to a Texas

corporation for work done on a Texas project. Kelly, 301 S.W.3d at 655-656. The

individual defendants filed a special appearance stating that they did not do

business in an individual capacity in Texas. Id. The Supreme Court held that a

Texas court lacked jurisdiction over the individual defendants because there was

no allegation that they committed a wrongful act in Texas, expressly rejecting the

argument that the individual defendant’s wrongdoing was “related” to Texas. Id.

      In this case, the essence of Appellee’s claim is that Buswell was involved in

the investigation of a life insurance claim originating in Texas. Buswell has filed a

special appearance stating that she does not do business, individually, in Texas,

and Appellee has not alleged, much less come forward with evidence sufficient to



APPELLANT’S REPLY BRIEF – Page 7
controvert Buswell’s special appearance, that Buswell actually committed a

wrongful act in Texas. Instead, Appellee alleges that Buswell reviewed some

documents originating in Texas and sent a letter to the Estate. This is insufficient

as a matter of law to establish minimum contacts or show purposeful availment.

Kelly, 301 S.W.3d at 657.

      Michiana illustrates the purposeful availment requirement. As the Supreme

Court held, “[j]urisdiction is premised on notions of implied consent – that by

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

suit there.” Michiana, 168 S.W.3d at 785. The defendant in Michiana was not

subject to jurisdiction, because its contacts with Texas were created wholly by the

plaintiff, and was therefore unilateral activity that could not create jurisdiction.

Similarly, in this case, Buswell’s purported contacts with Texas were created

wholly by Mr. Blanchard’s decision to seek medical treatment in Texas and the

location of Mr. Blanchard’s Estate. As a result, the purposeful availment

requirement cannot be met here. To hold otherwise would mean that jurisdiction

over Buswell could be created anywhere that Mr. Blanchard sought medical

treatment, simply because his medical records and the Estate were located there.

This is not the law. Id.

      In this regard, Appellee’s statement that “[t]he Texas Supreme Court, in

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



APPELLANT’S REPLY BRIEF – Page 8
contacts,” is simply wrong: Specific jurisdiction always turns on the defendant’s

contacts with the forum state. Id. (holding that, in evaluating contacts, “it is the

defendant’s conduct and connection with the forum that are critical”). The only

contacts alleged by Appellee are Buswell’s review of Texas documents and a

single letter to the Estate, and these are not sufficient. Id.

       Appellee’s reliance on Retamco is likewise misplaced. In Retamco, the

defendant, a California entity, was sued under the Uniform Fraudulent Transfer

Act after it took title to oil and gas interests in Texas from an insolvent Texas

debtor. Retamco, 278 S.W.3d at 334. Unsurprisingly, the court found jurisdiction

because the defendant took title to valuable real property interests in Texas, and

acquired valuable rights enforceable under Texas law as a result. Id. The fact that

the defendant acquired real property was central to the analysis. As the court

stated, “when purchasing real property, the location matters.” Id. Obviously,

Buswell did not acquire any Texas assets as a result of her actions, and Retamco is

simply inapplicable.

       Finally, Appellee’s reliance on Fjell is similarly misplaced. In Fjell, the

plaintiff sued a Norwegian entity and two individuals for theft of trade secrets.

Fjell, 2015 WL 457805 at *1. The first individual, Van Uden, had worked in the

plaintiff’s Houston offices, stole its confidential customer list, met with Texas

residents to discuss setting up a branch of the Norwegian entity in Houston,



APPELLANT’S REPLY BRIEF – Page 9
emailed marketing information to the customers on the list on behalf of the

Norwegian entity, and accepted a purchase order from a Texas entity. Id. at *4-5.

The court found that Van Uden was subject to jurisdiction, because he had actively

targeted the Texas market in stealing the customer list and sending out materials.

Id. The second individual, Karlsen, supervised Van Uden and was copied on his

marketing emails, but never personally sent emails to individuals in Texas or

traveled to Texas. Id. at *10-11. The court found that Karlsen was not subject to

jurisdiction in Texas, because he never took any action directed to the forum.

      Buswell’s contacts are far closer to those of Karlsen than those of Van Uden.

Buswell had no involvement with the sale, underwriting, or issuance of the Policy.

There is no evidence or allegation in the record that she sought to sell policies in

Texas or otherwise do business in Texas. Rather, she reviewed records that, as a

result of Mr. Blanchard’s decision to seek treatment in Texas, came from Texas

hospitals, and sent one letter to a Texas estate, which is not a party to the lawsuit.

      Appellee’s argument that Fjell stands for the proposition that, because Van

Uden sent emails to a non-party, Buswell’s letter to the Estate can support

jurisdiction [Appellee’s Brief, p. 15], misreads the case. Unlike here, the marketing

emails at issue in Fjell were relevant to the jurisdictional analysis because they




APPELLANT’S REPLY BRIEF – Page 10
established substantive elements of the plaintiff’s claims. Id. at *8-9. 5 In contrast,

Buswell’s letter to the Estate is not the basis of any of Appellee’s claims. 6

C.     Finding That Buswell is Subject to Jurisdiction Offends Traditional
       Notions of Fair Play and Substantial Justice.

       It is undisputed that Buswell lives and works in Tennessee, and that her only

contact with Texas related to this dispute consisted of reviewing some documents

originating in Texas and sending a single letter to the Estate. It is neither fair nor

foreseeable that Buswell is subject to jurisdiction in every state where her

employer transacts business. Indeed, if Appellee’s argument is accepted,

employees in every business could be subject to suit in other states merely because

they made a decision that impacted someone in another state or reviewed

documents from another state. This is not the law. Buswell should be dismissed.

                                           PRAYER

       For the foregoing reasons, Appellant Buswell requests that this Court reverse

the Trial Court’s Order denying Buswell’s special appearance.



5
  Specifically, the emails themselves were the wrongful conduct that gave rise to the plaintiff’s
damage claims under the Theft Liability Act and for conversion, unfair competition,
misappropriation, and breach of fiduciary duty. The emails contained statements that gave rise to
the plaintiff’s business disparagement claims, and constituted the interference that gave rise to
the plaintiff’s tortious interference claims.
6
 Although Appellee does not cite Carey as supporting its argument, other than on the sufficiency
of its pleading, it is worth noting that the individual defendants in that case personally received
proceeds from the sale of retail installment contracts that originated in Texas, personally
guaranteed business obligations in Texas, actively marketed to Texas consumers, and traveled to
Texas on business. Carey, 2010 WL 2838631 at *6. Of course, Buswell did none of these things.



APPELLANT’S REPLY BRIEF – Page 11
                                    Respectfully submitted,


                                    By: /s/ Lance V. Clack
                                            Andrew G. Jubinsky
                                            Texas Bar No. 11043000
                                            andy.jubinsky@figdav.com
                                            Lance V. Clack
                                            Texas Bar No. 24040694
                                            lance.clack@figdav.com

                                    FIGARI + DAVENPORT, LLP
                                    901 Main Street, Suite 3400
                                    Dallas, Texas 75202
                                    Tel: (214) 939-2000
                                    Fax: (214) 939-2090

                                    ATTORNEYS FOR APPELLANT
                                    CAROLINE BUSWELL



                      CERTIFICATE OF COMPLIANCE
      This document complies the word-count limitations of Rule 9.4(i)(3)
because it contains 2,738 words as calculated per the word processing program
used for its preparation, excluding any parts exempted by Rule 9.4(i)(1).



                                      /s/ Lance V. Clack
                                         Lance V. Clack




APPELLANT’S REPLY BRIEF – Page 12
                         CERTIFICATE OF SERVICE
      This is to certify that a true and correct copy of the foregoing document has
been served via E-Service on the parties listed below on the 21st day of September,
2015.

J. Steve Mostyn
jsmdocketefile@mostynlaw.com
Caroline L. Maida
clmaida@mostynlaw.com
THE MOSTYN LAW FIRM
3810 West Alabama St.
Houston, Texas 77027

                                          /s/ Lance V. Clack
                                             Lance V. Clack




APPELLANT’S REPLY BRIEF – Page 13
