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NO. 05-13-00353-CV

ACCEPTED

225EFJ017473670

FIFTH COURT OF APPEALS DALLAS, TEXAS 13 May 8 A9:22 Lisa Matz CLERK

IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS

FILED IN 5th COURT OF APPEALS DALLAS, TEXAS

5/8/2013 9:22:11 AM

LISA MATZ

Clerk

WAYNE LENSING and LEFTHANDER MARKETING, INC.

Appellants

v.

DAVID CARD and CLEO LOWE

Appellees

On Appeal from the 298th District Court Dallas County, Texas, Cause No. DC-12-06631-M Honorable Emily G. Tobolowsky, Presiding Judge

APPELLANTS’ BRIEF

Oral Argument Requested

Kenneth E. East State Bar No. 00790622

FOSTER & EAST 9001 Airport Freeway, Suite 675 North Richland Hills, Texas 76180 Phone: (817) 788-1111 Fax: (817) 485-2836

ATTORNEY FOR APPELLANTS WAYNE LENSING and LEFTHANDER MARKETING, INC.

IDENTITY OF PARTIES AND COUNSEL

  • 1. Appellants. Appellants are Wayne Lensing and Lefthander

Marketing, Inc., who are two of the four defendants in the trial court

proceeding below. Appellants’ trial and appellate counsel is Kenneth E. East,

Foster & East, 9001 Airport Freeway, Suite 675, North Richland Hills, Texas

76180, 817-788-1111, 817-485-2836 (fax), ken@fostereast.com.

  • 2. Appellees. Appellees are David Card and Cleo Lowe, who are the

only plaintiffs in the trial court proceeding. Appellees’ trial and appellate

counsel is Wm. Nicholas Manousos, 3812 N. Hall Street, Dallas, Texas 75219,

214-740-1711; 214-740-1744 (fax), attywnm@aol.com.

  • 3. Other parties below. The remaining two defendants in the trial

court proceeding are not parties to this appeal. They are: Holly Ragan,

represented by D. Lee Thomas, Jr., 507 West Central Ave., Fort Worth, Texas

76106, 817-625-8866, 817-625-8950 (fax), dlthom31@yahoo.com; and Heritage

Auctions, Inc., represented by Samuel E. Joyner, RossJoyner, 1700 Pacific

Avenue, Suite 3750, Dallas, Texas 75201, 214-382-0894, 972-661-9401 (fax),

sjoyner@rossjoynerlaw.com.

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL

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TABLE OF

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STATEMENT OF THE

 

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STATEMENT REQUESTING ORAL

 

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ISSUES PRESENTED.

 

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STATEMENT OF FACTS

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  • A. Introduction.

 

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  • B. Wayne

Lensing.

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  • C. The Museum

 

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  • D. Lefthander Marketing, Inc

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  • E. Ragan Contacts Lensing in Illinois, Claims Unencumbered

 

Ownership of, and Sells, the Headstone.

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  • F. Ragan’s Prior Contact with

 

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  • G. Other Contacts with

 

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SUMMARY OF THE

 

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  • A. Standard of Review and Burdens.

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  • 1. Standard of review.

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  • 2. Plaintiffs bear the initial and ultimate burdens

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  • B. The law of personal jurisdiction,

 

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  • C. Argument in support of Issue No.

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The trial court erred by denying Appellants’ special appearance because (1) Appellees’ only claimed jurisdictional facts are insufficient as a matter of law to confer personal jurisdiction over Appellants, and (2) even if any of the pleaded facts were to be considered sufficient on their face, Appellants have fully negated them, and the evidence is legally insufficient, or alternatively, factually insufficient, to support any implied findings conferring jurisdiction.

 
  • 1. Plaintiff’s jurisdictional allegations and a summary of the few disputed facts in this

 

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  • 2. Appellees’ only claimed jurisdictional facts are

 

insufficient as a matter of law to confer personal

jurisdiction over Appellants

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  • a. Plaintiffs-Appellees’ First Allegation

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  • b. Plaintiffs-Appellees’ Second

 

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  • c. Plaintiffs-Appellees’ Third Allegation

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  • d. Plaintiffs-Appellees’ Fourth Allegation

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  • 3. Even if any of the pleaded facts were to be considered sufficient on their face, Appellants have fully negated them, and the evidence is legally insufficient, or alternatively, factually insufficient to support any

 

implied findings conferring

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  • 4. Conclusion of Argument Regarding Issue No.

 

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  • D. Argument regarding Issue No.

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Under the facts of this case, the trial court’s exercise of personal jurisdiction

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over Appellants violates traditional

 

notions

 

of

 

fair

 

play

 

and substantial

 

justice.

 

CONCLUSION AND PRAYER FOR RELIEF.

 

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CERTIFICATE OF

 

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CERTIFICATE OF SERVICE

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APPENDIX

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v

TABLE OF AUTHORITIES

Cases

Am. Type Culture Collection, Inc. v. Coleman,

83 S.W.3d 801 (Tex. 2002).

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37

Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano

 

County, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92

 

17, 45

Ashdon, Inc. v. Gary Brown & Associates, Inc., 260 S.W.3d 101

 

(Tex. App.—Houston [1st Dist.] 2008, no

 

34

Assurances Generales Banque Nationale v. Dhalla, 282 S.W.3d 688

 

(Tex. App.—Dallas 2009, no pet.).

 

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16, 17, 18

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789

(Tex.

2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14, 17, 19, 33, 36, 44

Burger King Corp. v. Rudzewicz, 471 U.S. 462,

  • 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)

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18, 45

Capital Tech. Info. Services, Inc. v. Arias & Arias Consultores,

 
  • 270 S.W.3d 741 (Tex. App.—Dallas 2008, pet. denied)

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14

Clark v. Noyes, 871 S.W.2d 508 (Tex. App.--Dallas 1994, no

 

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Cont'l Credit Corp. v. Norman, 303 S.W.2d 449 (Tex. Civ. App.--San Antonio 1957, writ ref'd n.r.e.).

 

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

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Dalton v. R & W Marine, Inc., 897 F.2d 1359 (5th Cir.

 

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Dolenz v. Nat'l Bank of Texas at Fort Worth, 649 S.W.2d 368

 

(Tex. App.--Fort Worth 1983, writ ref'd n.r.e.)

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Ex parte Smith, 645 S.W.2d 310 (Tex. Crim. App. 1983)

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31, 41

Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798

(Tex. App.--Houston [1st Dist.] 1998, pet.

28

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,

  • 815 S.W.2d 223 (Tex.

18, 45

Helicopteros Nacionales de Colombia, S.A. v. Hall,

  • 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404

(1984). . . .

19, 33, 34, 35, 36

Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630

(Tex. App.--Dallas 1993, writ

 

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35

Hydrokinetics, Inc. v. Alaska Mech., Inc., 700 F.2d 1026 (5th Cir.

 

27

In re Rollings, 451 Fed. App’x 340 (5th Cir.

 

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Int'l Shoe Co. v. Washington, 326 U.S. 310,

 

66 S.Ct. 154, 90 L.Ed. 95

 

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17

Int'l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805

 

(Tex. App.--Fort Worth 1994, writ denied)

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35

James v. Ill. Cent. R.R., 965 S.W.2d 594 (Tex. App.--Houston [1st Dist.] 1998, no

 

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Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653

 

(Tex. 2010).

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13, 15, 24, 25

Khorshid, Inc. v. Christian, 257 S.W.3d 748

 

(Tex. App.--Dallas 2008, no pet.).

 

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28

Miele v. Blockbuster Inc., 3-04-CV-1228-BD, 2005 WL 176170 (N.D. Tex. Jan. 26, 2005)

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Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex.

2007). . .

17, 19

Nagle v. Oppedisano, 05-05-01246-CV, 2006 WL 2348975

(Tex. App.--Dallas Aug. 15, 2006, no

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Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769 (Tex. 1995)

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Novamerican Steel, Inc. v. Delta Brands, Inc., 231 S.W.3d 499

(Tex. App.--Dallas 2007, no

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19

Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491 (Tex.

14

Pervasive Software Inc. v. Lexware GmbH & Co. KG,

688 F.3d 214 (5th Cir.

30, 41

PHC–Minden, L.P. v. Kimberly–Clark Corp., 235 S.W.3d 163 (Tex. 2007). 17

Rapaglia v. Lugo, 372 S.W.3d 286 (Tex. App.—Dallas 2012, no

 

32

Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516,

 

43 S.Ct. 170, 67 L.Ed. 372

 

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35

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

 

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18

Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135

 

(Tex. App.—Dallas 2003, pet. denied)

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Yfantis v. Balloun, 115 S.W.3d 175 (Tex. App.--Fort Worth 2003, no

 

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Statutes and Rules

Tex. Civ. Prac. & Rem. Code §§

 

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16-17

Tex. Civ. Prac. & Rem. Code §

 

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Texas Penal Code §

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viii

STATEMENT OF THE CASE

This lawsuit involves rather notorious subject matter: a headstone that

once marked the grave site of Lee Harvey Oswald. But the relevant legal

issues are more mundane. In short, Appellants bring this interlocutory appeal

from the trial court’s denial of their special appearance. CR 437, 446.

Appellees, David Card and Cleo Lowe, filed suit below, claiming that one of

their extended family members, Holly Ragan (a defendant below but not a

party to this appeal), sold the headstone to Appellants, Wayne Lensing and

Lefthander Marketing, Inc. (a museum curator and the corporation that runs

the museum’s daily operations in Roscoe, Illinois), both nonresidents of

Texas. See CR 112-126.

Appellees claim that Ragan’s sale of the headstone to Lensing

constituted conversion and other torts, and they seek a declaratory judgment

that they are the rightful owners of the headstone. Id. Appellees have sued

Appellants Lensing and Lefthander Marketing, Inc., Holly Ragan, and

Heritage Auctions, Inc. (an auction house that declined to purchase the

headstone but gave Ragan contact information for Appellant Lensing). Id.

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After being sued, Appellants timely filed their special appearance. CR

20. The trial court held an evidentiary hearing on the special appearance on

November 16, 2012. The trial court issued its order, denying the special

appearance, on March 4, 2013. Ex. A; CR 437. Appellants timely requested

findings of fact and conclusions of law (CR 444; CR Supp. No. 1 at 5); the trial

court, by letter, dated March 12, 2013, expressly elected not to issue any

findings of fact or conclusions of law. Ex. B; CR Supp. No. 1 at 4. Appellants

timely perfected this interlocutory appeal, as allowed by section 51.014(a)(7)

of the Texas Civil Practice & Remedies Code, on March 12, 2013. CR 446.

STATEMENT REQUESTING ORAL ARGUMENT

Appellants respectfully request oral argument. Although Appellants

believe the core issues in this appeal to be fairly straightforward, they

believe oral argument would assist the Court by clarifying the written

arguments and allowing counsel to answer any questions the Court may

have.

2

ISSUES PRESENTED

No. 1

The trial court erred by denying Appellants’ special appearance because (1) Appellees’ only claimed jurisdictional facts are insufficient as a matter of law to confer personal jurisdiction over the Illinois Appellants, and (2) even if any of the pleaded facts were to be considered sufficient on their face, Appellants have fully negated them, and the evidence is legally insufficient, or alternatively, factually insufficient, to support any implied findings conferring jurisdiction.

No. 2

Under the facts of this case, the trial court’s exercise of personal jurisdiction over Appellants violates traditional notions of fair play and substantial justice.

3

STATEMENT OF FACTS

A. Introduction

Both Appellants are nonresidents of Texas. CR 21, 244-45 (Ex. C).

Appellant Wayne Lensing is an individual who resides in Illinois. CR 244.

Appellant Lefthander Marketing, Inc., is an Illinois corporation that conducts

business only in Illinois. CR 244-45. A Texas resident, Holly Ragan, solicited

Lensing to purchase the subject headstone from her. CR 241, 260. Ragan

appeared to be the undisputed sole owner of the item. CR 241-42, 257, 258-59.

Appellees were not parties to the transaction between Ragan and Lensing and

were, in fact, complete strangers to Appellants at the time Appellants

purchased the headstone from Ragan. CR 246-47. Wayne Lensing’s contacts

with Texas are minimal. He has been to Texas only four times in his entire

life. CR 248-49. Lefthander Marketing, Inc., has never had any contacts with

Texas. CR 244-45, 248.

B. Wayne Lensing

Wayne Lensing was born and raised in Iowa. CR 244. He moved to the

State of Illinois in 1968, where he has lived and resided ever since. Id. He

currently lives in Poplar Grove, Illinois, where he has lived since 2006. Id. He

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is not a resident or domiciliary of any other state, and he does not own or

maintain any other homes. Id. Wayne Lensing’s primary occupation is

building race car chassis and parts, which he has been doing for over twenty

years, following his earlier careers as a race car driver and as an assembly line

worker for Chrysler. CR 239.

  • C. The Museum Collection As an offshoot of his race car businesses and interests, Lensing has had

the opportunity to acquire a number of unique and interesting automobiles,

many of which have historic significance. CR 239-40. His collection includes

automobiles that span from 19th century horse drawn carriages to legendary

race cars--from Richard Petty’s 1960 Plymouth Stock Car to Danica Patrick's

Rahal-Letterman Racing 2005 IRL IndyCar--to cars used in television and

movies, including one of the “Batmobiles,” and the presidential limousines

that carried Presidents Harry S. Truman, Lyndon B. Johnson, and Ronald

Reagan. Id.

His interest in historic artifacts grew from automobiles to other items,

and he now has a significant collection of varied historic artifacts, particularly

related to world leaders and U. S. presidents, including several complete

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rooms of furniture used to furnish the White House at different points in its

history. CR 240. He has collections of movie and television stage sets and

artifacts as well as a collection of NASA artifacts. Id. His collection of

presidential memorabilia includes several items related to Presidents

Abraham Lincoln and John F. Kennedy, including items relating to their

respective assassinations. Id. Lensing has always owned all of these items in

his own name. Id.

  • D. Lefthander Marketing, Inc. As his collection grew, Wayne Lensing realized that he needed a better

way to store and display the items. CR 240. He believed the collection was

interesting enough that the public may enjoy viewing it. Id. So, in 2001, he

opened a museum. Id. He continues personally to own the items in the

collection in his own name (or as trustee of a revocable trust), but he formed

a corporation, Lefthander Marketing, Inc., which was incorporated on

January 14, 2003, to serve as a management company for the museum’s

operations. Id. Lefthander Marketing, Inc., manages the museum by

collecting admission fees from customers and paying the operating expenses,

but the corporation owns none of the museum’s contents. Id.

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  • E. Ragan Contacts Lensing in Illinois, Claims Unencumbered Ownership of, and Sells, the Headstone Approximately in early 2010, Lensing was contacted in Illinois by

telephone by a woman, who identified herself as Holly Ragan. CR 241, 260.

Ms. Ragan explained to Lensing that she had inherited the original headstone

that had marked the grave of Lee Harvey Oswald. Id. Ms. Ragan explained

that it was the stone that was on Oswald’s grave in the Shannon Rose Hill

Memorial Park in Fort Worth, Tarrant County, Texas, from Oswald’s original

burial in 1963, until the stone was stolen four years later. Id. Ms. Ragan

explained that after the headstone was recovered, it was returned to Lee

Harvey Oswald’s mother, Marguerite Oswald, who placed it in storage under

her house in Fort Worth. Id.

Ms. Ragan explained to Mr. Lensing that relatives of hers had purchased

that house after Marguerite Oswald passed away. Id. Sometime thereafter,

the headstone was discovered under the house. Id. According to Ms. Ragan,

family members later gave it to her husband’s parents, who later gave it to her

husband, Johnny Ragan. Id. After Johnny Ragan’s death in 2008, according

to Ms. Ragan, the headstone passed to her, as her husband’s heir, through a

probate proceeding in Tarrant County, Texas. Id.

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Mr. Lensing further questioned Ms. Ragan about the headstone’s

authenticity. Id. Ragan provided Lensing with copies of probate documents

from her husband, Johnny Ragan’s, probate case, which Mr. Lensing

understood to mean that the headstone had passed to Ms. Ragan through a

court-approved probate proceeding. CR 241-42, 252-55, 260-61.

Given Ms. Ragan’s assurances about her ownership of the headstone

and the supporting probate documents, Lensing decided to purchase the

stone from Ragan. CR 242. Lensing had no reason to believe anything other

than Ragan was the headstone’s only and rightful owner. He had never heard

of Appellees Card or Lowe, and he could not have known that they would

later assert a claimed interest in the headstone based on some alleged,

unwritten bailment agreement between deceased members of the Card-Ragan

families. CR 246-47.

After completing the negotiation, in Illinois, with Ms. Ragan to purchase

the headstone, Lensing flew his personal plane to Fort Worth’s Spinks

Airport. CR 242, 260. Lensing met Ragan at the Fort Worth airport. Id. She

had brought the headstone to the airport in her car. Id. Lensing removed the

headstone from Ragan’s car, placed it into his plane, and flew back home to

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Illinois the very next day, after spending one night in a Fort Worth motel. Id.

That was the one and only time Lensing ever went to the State of Texas

related in any way to the headstone or his purchase thereof. Id.

  • F. Ragan’s Prior Contact with Heritage

Prior to Ragan contacting Lensing, she contacted Heritage Auctions

(now a defendant below) in order to try to sell Heritage the headstone. CR

243-44, 260. Heritage, ultimately, simply declined to purchase the headstone.

CR 260. Heritage suggested to Ragan that she may try calling Lensing

because, someone from Heritage told her, he collected similar artifacts. Id.

  • G. Other Contacts with Texas Defendant Lefthander Marketing, Inc., simply has had no contacts with

Texas, either related to the underlying facts of this case or otherwise. CR 244-

45. It is an Illinois corporation. Id. Its only business is to manage Wayne

Lensing’s museum in Illinois. Id. It has never done any business in Texas,

has never sent employees or representatives on its behalf to Texas, nor has it

ever done anything else in, or in any way directed to or related to, Texas. CR

  • 245. Wayne Lensing has been to Texas only four times in his entire life. CR

  • 248. Neither defendant is required to, nor do they, maintain a registered

9

agent for service in Texas, nor have they ever. CR 245. Neither defendant

maintains a place of business in Texas nor do they have any employees,

servants, or agents in Texas, nor have they ever. Id.

Again, other than picking up the headstone in Fort Worth, as described

above, Lensing has been to Texas only three other times in his entire life. CR

248. When he was much younger, Lensing visited a car race in Houston and

drove through parts of Texas, including Dallas, on his way home. CR 249.

On museum-related business, he has been only twice.

In April or May 2010, he flew to Texas, rented a Penske truck and drove

to the Pate Museum in Cresson, Texas. CR 248. The museum was closing,

and Lensing went to acquire items from its collection, including a replica

space capsule mentioned by Plaintiffs in their amended petition and a few

other NASA-related pieces. Id. During that same trip, Lensing went to

Heritage and a warehouse to pick up a stuffed lion, which he had purchased

through an online auction (while in Illinois) conducted by Heritage. Id.

(Lensing has never physically attended an auction conducted by Heritage in

Texas or elsewhere; all of his purchases from Heritage have been from Illinois

through online auctions. Id.). And a few months later, in June 2010, Lensing

10

traveled back to Cresson to purchase a Yellow Checker cab, which he

arranged to have shipped to himself in Illinois. Id.

Lensing has purchased a number of items for his collection through

Heritage Auctions via internet auctions, which he participated in from his

computer in Illinois, similar in fashion to placing bids on Ebay. CR 249.

Appellants did not contract with the Plaintiffs-Appellees or have any other

interaction with them whatsoever, nor did they even know of their existence

at the time Lensing purchased the headstone. CR 246-47; see also RR 11-13;

RR Ex. 2 (Admissions 1-6).

These are the extent of Appellants’ contacts with the State of Texas.

SUMMARY OF THE ARGUMENT

Texas courts have no personal jurisdiction over Appellants in this

lawsuit. Appellees have attempted to make this case seem complicated and

to make the underlying facts appear somehow to be sinister. But, at its heart,

at least with regard to the jurisdiction question, this case is very simple.

There can be no specific jurisdiction. Plaintiffs-Appellees were not

parties to the transaction between Lensing and Ragan, and, at that time,

Appellants had never so much as heard of them. There is, therefore, no

11

contract claim involving Appellees. And Appellants could not have

committed the torts of conversion or theft against Appellees in Texas because

they did not act to “deprive PLAINTIFFS of their right to possession of the

grave marker,” as alleged by Appellees. The claim, with respect to there

being any Texas-based tortious conduct, in fact, is wholly-conclusory and

factually insufficient to support jurisdiction. Lensing’s only conceivably

tortious act toward Appellees could have occurred only later, in Illinois, when

Appellees contacted him, in Illinois, demanding that he give them the

headstone, and he, while in Illinois, refused to do so.

Appellees’ arguments with regard to specific jurisdiction could make

sense only if they were somehow in the shoes of Holly Ragan, which they are

not. If, for example, Lensing’s check to Ragan turned out to be insufficient,

Ragan might have been able to assert specific jurisdiction over him in a Texas

court based on a claim arising from their contract. But Appellees simply

were not parties to that transaction.

There is no general jurisdiction over Appellants. Lefthander Marketing,

Inc., has never had any contact with Texas. Wayne Lensing has been to Texas

only a few times in his entire life. He certainly has not maintained any type

12

of continuous and systematic contacts with Texas. His occasional purchases

from Heritage Auctions, via internet sales, are nothing more than “mere

purchases,” which the Supreme Court has unequivocally held are not

sufficient to subject him to the general jurisdiction of Texas courts.

Appellees’ real complaint in this lawsuit is their allegation that Holly

Ragan converted the headstone and deceived Lensing into buying it from her

based on allegedly false claims of ownership. These Illinois Appellants,

however, should not be haled into a foreign jurisdiction to answer for Holly

Ragan’s alleged misconduct; to do so would violate traditional notions of fair

play and substantial justice.

The court should reverse and dismiss all of Appellees’ claims against

Appellants for lack of personal jurisdiction.

ARGUMENT

  • A. Standard of Review and Burdens

    • 1. Standard of review

Whether a Texas court can exercise personal jurisdiction over a

nonresident is a question of law, and an appellate court “thus

. . .

review[s] de

novo the trial court’s determination of a special appearance.” Kelly v. Gen.

13

Interior Const., Inc., 301 S.W.3d 653, 657 (Tex. 2010). Factual questions may

sometimes first need to be resolved, however, and when, as here, a trial court

does not issue findings of fact and conclusions of law, “all facts necessary to

support the judgment and supported by the evidence are implied.” Id. (emphasis

added) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795

(Tex. 2002)). But any implied findings are not conclusive, and when, as here,

“the appellate record includes the reporter's and clerk's records,” the implied

findings “may be challenged for legal and factual sufficiency.” BMC Software

Belgium, N.V., 83 S.W.3d at 795.

  • 2. Plaintiffs bear the initial and ultimate burdens

The plaintiff in a lawsuit in which personal jurisdiction is disputed

bears the initial burden to plead “sufficient allegations to bring a nonresident

defendant within the provisions of the long-arm statute.” Id. at 793.

The plaintiff “must allege facts that, if true, would make [the defendant]

subject to” personal jurisdiction. Capital Tech. Info. Services, Inc. v. Arias &

Arias Consultores, 270 S.W.3d 741, 750 (Tex. App.—Dallas 2008, pet. denied)

(emphasis added) (citing Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d

491, 496 (Tex. 1988)).

14

The jurisdictional analysis centers on the defendant’s conduct, and the

plaintiff must plead that the defendant’s conduct, which gives rise to the

plaintiff’s cause of action, occurred in Texas. Kelly, 301 S.W.3d at 660. The

“mere existence of a cause of action” is not enough. Id. If the plaintiff fails to

plead sufficient jurisdictional facts, “the defendant need only prove that it

does not live in Texas to negate jurisdiction.” 301 S.W.3d at 659.

To the extent the plaintiff does plead factual allegations sufficient to

bring a nonresident defendant within reach of the long-arm statute, “the

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

personal jurisdiction alleged by the plaintiff.” Id. at 658. The plaintiff’s exact

factual allegations, as set forth in its pleading, however, remain “essential to

frame the jurisdictional dispute.” Id. at 658 n. 4. That is, “[b]ecause 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.” Id. at 658.

The defendant may negate properly pleaded jurisdictional allegations

on either a legal or a factual basis. Id. at 659. Legally, the defendant can

negate jurisdiction by demonstrating that even if the plaintiff’s factual

15

allegations are presumed to be true, “the evidence is 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.” Id.

Or, if facts are disputed, “the defendant can present evidence that it has

no contacts with Texas, effectively disproving the plaintiff's allegations.” Id.

But the plaintiff bears the ultimate burden to “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.” Id.;

see also Assurances Generales Banque Nationale v. Dhalla, 282 S.W.3d 688,

695 (Tex. App.—Dallas 2009, no pet.) (“If the nonresident defendant produces

evidence negating personal jurisdiction, the burden returns to the plaintiff to

show, as a matter of law, that the court has personal jurisdiction over the

nonresident defendant.”).

  • B. The law of personal jurisdiction, generally The Texas long-arm statute generally governs a Texas court’s exercise

of jurisdiction over nonresident defendants. See Tex. Civ. Prac. & Rem. Code

16

§§ 17.041–17.045. And it is well established that the broad language of the

statute extends Texas courts' personal jurisdiction “as far as the federal

constitutional requirements of due process will permit.” See, e.g., BMC

Software Belgium, N.V., 83 S.W.3d at 795. But, it can extend it no further, and

“the exercise of in personam jurisdiction over a nonresident defendant must

satisfy federal due process requirements.” Assurances Generales Banque

Nationale, 282 S.W.3d 688, 696 (Tex. App.--Dallas 2009, no pet.) (citing Asahi

Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano County, 480 U.S. 102,

108, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Int'l Shoe Co. v. Washington, 326 U.S.

310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); PHC–Minden, L.P. v. Kimberly–Clark

Corp., 235 S.W.3d 163, 166 (Tex. 2007); and Moki Mac River Expeditions v.

Drugg, 221 S.W.3d 569, 575 (Tex. 2007)).

Personal jurisdiction is constitutional only 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. Id. (citing International Shoe Co., 326 U.S. at 316).

Sufficient minimum contacts exist only when a nonresident defendant has

“purposefully availed” itself of the privileges and benefits of conducting

17

business in the foreign jurisdiction and has sufficient contacts with the forum

to confer personal jurisdiction. Id. (citing Burger King Corp. v. Rudzewicz,

471 U.S. 462, 474–76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). A defendant

should not be subject to a foreign court's jurisdiction based upon “random,”

“fortuitous,” or “attenuated” contacts. Id. (citing Burger King, 471 U.S. at 475,

105 S.Ct. 2174).

The purpose of the analysis is to protect the defendant from being haled

into court when its relationship with Texas is too attenuated to support

jurisdiction. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). Courts,

therefore, must focus only on the defendant's activities and expectations and

not those of other parties. Id. In other words, a defendant cannot be haled

into a Texas court for the unilateral acts of a third party. Guardian Royal

Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.

1991). Here, for example, Plaintiffs’ claims that Holly Ragan wrongfully

exercised dominion and control over the headstone before she sold it to

Lensing are irrelevant and are insufficient as a matter of law to hale Lensing

into a Texas court to explain his innocent conduct in purchasing an item from

its purported and only apparent owner.

18

A plaintiff seeking to demonstrate that a Texas court has personal

jurisdiction over a non-resident defendant must show that the defendant’s

minimum contacts with Texas give rise to “specific” or “general” personal

jurisdiction. BMC Software Belgium, N.V., 83 S.W.3d at 795-96 (citing

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14, 104

S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Specific jurisdiction is established if the

defendant's alleged liability arises from an activity conducted within the

forum. Id. “For a nonresident defendant's forum contacts to support an

exercise of specific jurisdiction, there must be a ‘substantial connection

between those contacts and the operative facts of the litigation.’”

Novamerican Steel, Inc. v. Delta Brands, Inc., 231 S.W.3d 499, 507 (Tex. App.--

Dallas 2007, no pet.) (quoting Moki Mac, 221 S.W.3d at 584).

General jurisdiction, on the other hand, 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 if the cause of action

did not arise from or relate to activities conducted within the forum state.”

BMC Software Belgium, N.V., 83 S.W.3d at 796. “General jurisdiction requires

a showing that the defendant conducted substantial activities within the

19

forum, a more demanding minimum contacts analysis than for specific

jurisdiction.” Id. at 797.

  • C. Argument in support of Issue No. 1

The trial court erred by denying Appellants’ special appearance because (1) Appellees’ only claimed jurisdictional facts are insufficient as a matter of law to confer personal jurisdiction over Appellants, and (2) even if any of the pleaded facts were to be considered sufficient on their face, Appellants have fully negated them, and the evidence is legally insufficient, or alternatively, factually insufficient, to support any implied findings conferring jurisdiction.

  • 1. Plaintiff’s jurisdictional allegations and a summary of the few disputed facts in this case

In their relevant pleading, their Second Amended Petition and Request

for Declaratory Judgment (Ex. D), Plaintiffs-Appellees set forth the following

allegations regarding personal jurisdiction:

10. This Court has both general and specific jurisdiction over the non-resident defendants, MUSEUM and LENSING, under the terms of the United States Constitution and the Texas long-arm statute for the reasons set forth below.

  • 11. Under the Texas long-arm statute, Texas courts have the

power to exercise personal jurisdiction over a nonresident defendant who does business in Texas. The statute provides that doing business in Texas includes, among other things, where a party contracts by mail or otherwise with a Texas resident and

20

either party is to perform the contract, in whole or in part, in Texas, or where the defendant commits a tort, in whole or in part, in Texas. Here, on information and belief, the non-resident defendants negotiated and contracted, by mail, phone, or otherwise, with Defendant Ragan, a Texas resident, directly, through, or as the result of the actions of HERITAGE, a Dallas, Texas-based company, for the sale and purchase of the grave marker, and performed the contract, in whole or in part, in Texas, when LENSING traveled to Texas to pay for and/or take possession of the grave marker (see PLAINTIFFS’ Exhibit A). Additionally, the non-resident defendants committed the torts of (1) conversion, when LENSING and MUSEUM wrongfully exercised dominion or control over the grave marker when physically taking possession of the grave marker in Texas, and (2) theft, under the Texas Theft Liability Act, when LENSING and MUSEUM unlawfully appropriated the grave marker in Texas, by physically exercising dominion and control over the grave marker in Texas, without the effective consent of PLAINTIFFS, owner of the grave marker, with the express intent to permanently deprive PLAINTIFFS of their right to possession of the grave marker. All of PLAINTIFFS’ claims in this suit arise directly from DEFENDANTS’ actions as set forth above.

This Court’s exercise of jurisdiction over MUSEUM and LENSING comports with the requirements of federal due process. Personal jurisdiction over nonresident defendants is constitutional 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. Here, LENSING and/or MUSEUM, through LENSING, conducted negotiations with Texas resident, Defendant RAGAN, facilitated by HERITAGE, and traveled to Texas to perform the terms of a contract pertaining to, to make payment for, and to take possession of, the grave marker. In doing so, said defendants purposely directed their activities toward Texas and purposely availed themselves of the privileges

21

of conducting activities in Texas. All causes of action pled herein arise out of or are related to those contacts with Texas.

Moreover, in conducting the activities in Texas as alleged herein, the non-resident defendants must have created the reasonable anticipation that they could be sued in Texas. Accordingly, the non-resident defendants established sufficient contacts with Texas to confer personal jurisdiction upon this Court, and the exercise of jurisdiction over nonresident defendants LENSING and MUSEUM comports with notions of fair play and substantial justice.

Moreover, on information and belief, LENSING and/or MUSEUM have had frequent and pervasive contacts with Texas in contracting for the purchase of, leasing/borrowing, and

taking possession of, numerous items related to the assassination of President John F. Kennedy and/or to Lee Harvey Oswald, and other items (e.g., NASA related items) purchased in Texas or leased or borrowed from individuals or entities located in Texas. Historic Auto Attractions, owned by LENSING and/or MUSEUM, currently displays and advertises the display of such items (see PLAINTIFFS’ Exhibit B). In at least one such transaction, LENSING, or LENSING on behalf of MUSEUM, executed a written contract with Heritage agreeing that any dispute arising under said contract would be resolved under the laws of the state of Texas, in Dallas County, Texas. These numerous and consistent, ongoing contacts, support the court’s exercise of personal jurisdiction over the non-resident defendants

under the due process/minimum contacts test.

CR 114-16 (emphasis added). These are Plaintiffs-Appellees’ only pleaded

allegations regarding personal jurisdiction (see CR 113-16), and they can be

summarized as follows:

22

First Allegation:

Second Allegation:

Third Allegation:

Appellants contracted with Holly Ragan and performed part of that contract in Texas;

Appellants committed the torts of conversion and theft (in Texas);

Appellants purchased things from Texas; and

Fourth Allegation: Appellants had a contract with Heritage related to one of those purchases, and that contract with Heritage contained a Texas forum selection clause.

The first two allegations appear to be made in support of Plaintiffs-Appellees’

claim as to specific jurisdiction, and the last two appear to relate to their claim

as to general jurisdiction.

Appellants do not dispute most of the allegations. Appellants do not

dispute that Lensing entered into a contract with Holly Ragan to purchase the

headstone and “performed” (in a sense) part of that contract in Texas. See CR

241-42. (Appellants may disagree about whether Lensing’s brief trip to Texas

related to that contract actually constituted “performance,” in a legal sense,

sufficient to subject them to personal jurisdiction were they in a dispute with

Holly Ragan, but, as discussed more fully below, it is immaterial to this case,

because Appellees were not parties to that transaction.) Appellants do not

deny that Lensing occasionally purchased items from Heritage Auctions, a

23

Texas-based company, through internet auctions. CR 249. And Appellants

do not deny that in relation to at least one such purchase from Heritage that

Lensing may have agreed to a Texas forum selection clause should a dispute

arise between Heritage and himself related to the transaction. See CR 189 ¶14

in connection with, relating to and/or arising out of this Agreement

.

.”); CR 249.

Appellants take issue only with the Second Allegation. For the record,

Appellants dispute that they committed the torts of conversion or theft at all,

under any circumstances, or in any place, as they deny that Plaintiffs-

Appellees have any right, title, or interest in the subject headstone. CR 246-47.

But, more importantly for the sake of this appeal, Appellants dispute

Plaintiffs-Appellees’ conclusory assertion that any such alleged torts were (or

possibly could have been) committed against Plaintiffs-Appellees in the State

of Texas. Id.

  • 2. Appellees’ only claimed jurisdictional facts are insufficient as a matter of law to confer personal jurisdiction over Appellants

As discussed above, if the plaintiff fails to plead sufficient jurisdictional

facts, “the defendant need only prove that it does not live in Texas to negate

jurisdiction.” Kelly, 301 S.W.3d at 659. Also, if sufficient jurisdictional facts

24

are alleged, the defendant can negate jurisdiction simply by demonstrating

that even if the plaintiff’s factual allegations are presumed to be true, “the

evidence is legally insufficient to establish jurisdiction.” Id. Any difference

between these two standards is subtle. For example, in Kelly, the Supreme

Court noted that the plaintiff had pleaded jurisdictional allegations, but found

them to be legally insufficient to confer jurisdiction; yet the Court resolved the

matter in favor of the nonresident defendants by referencing the failure-to-

plead-facts standard and found that the defendants had thus met their special

appearance burden simply by proving that they do not live in Texas. Id. at

660.

Here, either Plaintiffs-Appellees’ attempt to plead jurisdictional facts is

so insufficient as to amount to a complete failure to plead adequate

jurisdictional facts, and because Appellants have, without dispute, proven

themselves not to live in Texas (CR 244-50), they met their special appearance

burden. Or Appellees’ jurisdictional allegations, even if accepted as true, are

legally insufficient to establish jurisdiction. See CR 113-16. Either way, the

trial court erred in denying Appellants’ special appearance.

25

As listed above, Plaintiffs-Appellees have pleaded only four relevant

allegations, or categories of allegations, with regard to the question of

personal jurisdiction.

  • a. Plaintiffs-Appellees’ First Allegation

Even assuming, as Appellees allege, that Appellants contracted with

Holly Ragan and performed part of that contract in Texas, that fact does not

give rise to personal jurisdiction over Appellants, as a matter of law. Plaintiffs

seem to conflate concepts of specific and general jurisdiction in claiming that

Appellants entered into a contract with a different Texas resident and

performed part of that contract in Texas. Specifically, Plaintiffs point to the

contract between Lensing and Ragan, whereby Ragan sold Lensing the

headstone, apparently in support of their claim of specific jurisdiction. CR

  • 114. Yet Plaintiffs do not dispute that they were not parties to that agreement.

RR Ex. 2 (Admissions 1-6). They even agree that at the time of that agreement

Appellants had no way of knowing even who they were, much less that they

had any plans to make a claim to the headstone. See RR 11-13.

Appellees seem to be saying that because Ragan could have haled

Lensing into a Texas court if, for example, Lensing had failed to pay her for

26

the headstone, that they, too, should be able to sue Appellants in Texas.

1

,

2

Their argument is obviously flawed.

Because Appellees were not parties to the agreement between Lensing

and Ragan, they cannot use that transaction to create personal jurisdiction

over Appellants in their lawsuit against them. See, e.g., Nagle v. Oppedisano,

05-05-01246-CV, 2006 WL 2348975 (Tex. App.--Dallas Aug. 15, 2006, no pet.)

(“Oppedisano is not a party to the legal services agreement. Thus, Nagle's

contacts with Texas in relation to the legal services agreement are not relevant

to the issue of specific jurisdiction regarding Oppedisano's claims.”);

Yfantis v. Balloun, 115 S.W.3d 175, 182-83 (Tex. App.--Fort Worth 2003, no

pet.) (“Balloun was not even a party to the licensing agreement. Therefore,

  • 1 Appellees’ confusion in this regard is apparent when they argue in their

Response to the special appearance, “In a contract case like this one

.” This is

. . . obviously not a contract case like in the authority cited by Appellees. Unlike in the

cited cases, here, the plaintiffs do not have a contract with the nonresident defendants.

  • 2 Actually, under the facts of this case, even Holly Ragan’s ability to hale Lensing into a Texas court for a breach of their agreement is far from a given. See, e.g., Hydrokinetics, Inc. v. Alaska Mech., Inc., 700 F.2d 1026 (5th Cir. 1983) (holding that single purchase transaction, even where out-of-state defendant (1) agreed to purchase specific goods to be manufactured in Texas; (2) payment for the goods was to be made in Texas; (3) extensive communications occurred between the parties, originating in Texas and Alaska; (4) officers of [defendant] traveled to Texas to “close” the deal; and (5) the contract was formally created in Texas, not sufficient to establish personal jurisdiction in action initiated by the Texas party to the agreement).

27

Yfantis's contacts with Texas in relation to the licensing agreement are not

relevant to the issue of specific jurisdiction.”); Garner v. Furmanite Australia

Pty., Ltd., 966 S.W.2d 798, 802 (Tex. App.--Houston [1st Dist.] 1998, pet.

denied) (holding that a contract negotiated between defendant and a third

party, not the plaintiff, could not form the basis for personal jurisdiction).

  • b. Plaintiffs-Appellees’ Second Allegation

Even assuming, as Appellees allege, that Appellants committed the torts

of conversion or theft at all, Plaintiffs make absolutely no non-conclusory

factual allegations to support any claim or inference that any such torts were,

or could have been, committed by Appellants in Texas. See CR 114-15, 122.

With regard to their conversion claim, Appellees refer vaguely to the

3

elements of conversion, but they wholly fail to plead facts that even suggest

the Illinois defendants had any reason to believe Plaintiffs had any possible

claim to ownership of the headstone or otherwise in any way acted in a

wrongful or unlawful manner when Lensing purchased the stone from its

only apparent owner, Holly Ragan. Id. Specifically, Appellees make no

  • 3 Significantly, Plaintiffs omit any mention of two necessary elements of their conversion claim: demand for return of the property and refusal. See Khorshid, Inc. v. Christian, 257 S.W.3d 748, 759 (Tex. App.--Dallas 2008, no pet.) (listing elements).

28

allegation even that Appellants had ever heard of Appellees, much less that

Appellants had any way of knowing that Appellees would assert some

claimed interest in the headstone. Id. As Appellees allege, “Lensing

[purchased] the grave marker from Ragan

. . .

.”

CR 114.

At most, Plaintiffs allege that Lensing, or Heritage before him, should

have known that Ragan did not own the headstone because it was inscribed with

the name, “Lee Harvey Oswald.” CR 118. The argument, even for what

Appellees claim it to be, makes no sense; in fact, Appellees themselves are

now claiming to own the stone despite it being inscribed with the Oswald

name. But, even Plaintiffs do not argue that the presence of the name “Lee

Harvey Oswald” should have led Appellants to conclude that two unknown

persons, named David Card and Cleo Lowe, were the headstone’s real

owners.

Instead, Plaintiffs claim that they made demand on Lensing for return

of the grave marker, and that Lensing refused. CR 119 ¶ 20. It is clear from

their allegations that Appellees made this demand on Lensing in Illinois,

sometime in or after May 2011, when Appellees claim they first became aware

that Lensing possessed the headstone “in an Illinois museum.” CR 118 ¶ 18;

29

see also RR 12-16. Accordingly, even by Appellees’ own assertions, any

alleged conversion could have been committed by the Appellants only in

Illinois when they refused to accede to Appellees’ demands to give them the

headstone. Dolenz v. Nat'l Bank of Texas at Fort Worth, 649 S.W.2d 368, 371

(Tex. App.--Fort Worth 1983, writ ref'd n.r.e.) (“If, upon being advised by

appellee that it had appellant's property, appellant had made demand for the

return of it, and that demand had been refused, then, and only then, would

there have been a conversion of appellant's property.”); Pervasive Software

Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 230 (5th Cir. 2012) ( “The mere

fact that the converted item originated in Texas is not sufficient to create

personal jurisdiction under the long-arm statute; the item must be in Texas

when the conversion actually occurs.”). 4

Plaintiffs likewise claim, without alleging actual supporting facts, that

the Illinois defendants committed theft in Texas by acting “with the express

  • 4 It was certainly reasonable for Lensing to believe Ragan to be the rightful owner of the headstone. In addition to her own statements and claim of ownership and the probate documents, Ragan actually possessed the item. And “possession is the strongest indicia of ownership of personal property.” Cont'l Credit Corp. v. Norman, 303 S.W.2d 449, 454 (Tex. Civ. App.--San Antonio 1957, writ ref'd n.r.e.) (citing Gay v. Hardeman, 31 Tex. 245, 251); accord In re Rollings, 451 Fed. App’x 340, 346 (5th Cir. 2011) (“Under Texas law, ‘[o]ne in possession (or control) of property is presumed to be the owner of it.’”).

30

intent to permanently deprive Plaintiffs of their right to possession of the

grave marker.” But again, Plaintiffs plead no facts even to suggest how it is

that the Illinois defendants were supposed to have known even of Plaintiffs’

existence, let alone their now-claimed interest in the headstone, at the time of

the transaction with Ragan. See Tex. Civ. Prac. & Rem. Code § 134.003 (Texas

Theft Liability Act, incorporating section 31.03 of Texas Penal Code); Ex parte

Smith, 645 S.W.2d 310, 311 (Tex. Crim. App. 1983) (construing section 31.03

and finding “a specific intent ‘to deprive the owner of property’” to be a

necessary element of theft).

Finally, Plaintiffs-Appellees have brought a civil conspiracy claim

against Appellants, but nowhere in their live pleading do they claim that their

conspiracy allegation provides a basis for invoking personal jurisdiction over

Appellants. See CR 123-24 (conspiracy claim); CR 113-16 (jurisdictional

allegations). And the only evidence presented regarding the special

appearance negates there being any conspiracy between Appellants and

anyone else to harm Appellees. See CR 240-44.

Appellees, themselves, in fact, argued in their original Response to the

Special Appearance that the civil conspiracy claim does not “have anything

31

to do with” their attempt to subject Appellants to the personal jurisdiction of

the Texas trial court. CR 328-29. In that response, Appellees were arguing

that Appellants had waived their special appearance by seeking discovery

related to the conspiracy allegations. The discovery constituted waiver,

Appellees argued, because there was supposedly no relationship whatsoever

between Appellees’ conspiracy allegations and the jurisdictional question. Id.

Appellees, therefore, are bound by their prior judicial admission that their

conspiracy claim does not relate to their jurisdictional allegations, and they

are precluded from now taking an opposite position and arguing that the

conspiracy claims do support jurisdiction. See Sherman v. Merit Office

Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.—Dallas 2003, pet. denied)

(discussing elements of judicial admission and noting that “a judicial

admission

. . .

5

bars the admitting party from disputing it”). Moreover, the

law is clear that allegations of a civil conspiracy are not sufficient to confer

personal jurisdiction over a nonresident. Rapaglia v. Lugo, 372 S.W.3d 286,

290 (Tex. App.—Dallas 2012, no pet.) (citing Nat'l Indus. Sand Ass'n v.

Gibson, 897 S.W.2d 769, 773 (Tex. 1995) (orig. proceeding)).

  • 5 Incidentally, Appellees expressly withdrew their waiver argument on the record during the special appearance hearing. RR at 5 (line 23) - 6 (line 3).

32

Plaintiffs-Appellees have not set forth sufficient factual allegations that

Appellants committed any tort in Texas to confer jurisdiction, or the actual

facts they did plead regarding the matter, even if true, are insufficient as a

matter of law to subject Appellants to personal jurisdiction.

  • c. Plaintiffs-Appellees’ Third Allegation

Plaintiffs-Appellees’ Third Allegation appears to be designed to support

their argument as to general jurisdiction. The allegation, that Appellants

purchased certain things from Texas, is legally insufficient to subject

Appellants to personal jurisdiction. General jurisdiction, of course, “requires

a showing that the defendant conducted substantial activities within the

forum, a more demanding minimum contacts analysis than for specific

jurisdiction.” BMC Software Belgium, 83 S.W.3d at 797 (citing CSR Ltd. v.

Link, 925 S.W.2d 591, 595 (Tex. 1996)).

Probably the most-cited case on the subject of general jurisdiction is

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct.

1868, 80 L. Ed. 2d 404 (1984). In Helicopteros, the plaintiff sued a foreign

defendant in Texas. In support of its claim of general jurisdiction, the plaintiff

demonstrated that the defendant, Helicopteros, indeed had had a significant

33

number of contacts with Texas. In fact, over an eight-year period,

Helicopteros had purchased millions of dollars of helicopters (80% of its entire

fleet) and related parts from Bell Helicopter in Fort Worth. 466 U.S. at 411,

104 S. Ct. at 1870. It had sent its pilots to Texas for training and to pick up

aircraft it had purchased. Id. It sent its management and maintenance

personnel on numerous occasions to Texas for “plant familiarization and

technical consultation.” Id. And it had received millions of dollars in

payments from a Houston bank. Id. Yet despite all that, the U.S. Supreme

Court held that Helicopteros simply did not have sufficient contacts with

Texas to subject itself to the general jurisdiction of Texas courts. Plaintiffs,

here, of course, do not allege contacts by the Illinois defendants coming even

close to the contacts held to be insufficient in Helicopteros.

In Helicopteros, the Court focused on the fact that Helicopteros did not

“have a place of business in Texas and never has been licensed to do business

in the State.” 466 U.S. at 416, 104 S. Ct. at 1873. In fact, “Texas courts often

consider ‘the lack of an office, agent, or the solicitation of business as

determinative to the exercise’ of general jurisdiction.” Ashdon, Inc. v. Gary

Brown & Associates, Inc., 260 S.W.3d 101, 113 (Tex. App.—Houston [1st Dist.]

34

2008, no pet.) (emphasis added); see also James v. Ill. Cent. R.R., 965 S.W.2d

594, 598 n. 1 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (no general

jurisdiction where defendant never maintained office or other place of

business in Texas and had no agents in Texas); Int'l Turbine Serv., Inc. v.

Lovitt, 881 S.W.2d 805, 810 (Tex. App.--Fort Worth 1994, writ denied) (no

general jurisdiction where defendant did not have office, employee, or market

in Texas); Clark v. Noyes, 871 S.W.2d 508, 518–20 (Tex. App.--Dallas 1994, no

writ) (no general jurisdiction where defendant had no business interests in

Texas); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 634–35 (Tex.

App.--Dallas 1993, writ denied) (no general jurisdiction where defendant did

not maintain place of business in Texas, had no employees from Texas, and

did not solicit business in Texas). Here, of course, Plaintiffs have not alleged

that the Illinois defendants maintained any agent, offices, or employees in

Texas or that they solicited business from Texas residents.

The Supreme Court in Helicopteros further explained that the law is

clear that “purchases and related trips, standing alone, are not a sufficient

basis for a State's assertion of jurisdiction.” Helicopteros, 466 U.S. at 417, 104

S. Ct. at 1874 (citing Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516,

35

43 S.Ct. 170, 67 L.Ed. 372 (1923) (Brandeis, J., for a unanimous tribunal)). In

other words, the Court continued, “mere purchases, even if occurring at

regular intervals, are not enough to warrant a State's assertion of in

personam jurisdiction over a nonresident corporation in a cause of action not

related to those purchase transactions.” Helicopteros, 466 U.S. at 418, 104 S.

Ct. at 1874 (emphasis added). See also BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 798 (Tex. 2002) (“BMCB's purchasing products

from BMCS in Texas to distribute in Europe is not enough to establish general

jurisdiction. . . .

BMCB's unrelated purchases in Texas from BMCS are not the

type of contacts that justify a finding that BMCB could have ‘reasonably

anticipate[d] being haled into court’ here.”) (citing Helicopteros and others).

As the Texas Supreme Court has explained it, buying things from Texas

residents simply is not enough of a connection to this state for a Texas court

to exercise general jurisdiction over a non-resident:

ATCC contends that its purchases from Texas vendors “do not provide evidence warranting the exercise of general jurisdiction over ATCC.” We agree. In Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), the United States Supreme Court stated that “mere purchases, even if occurring at regular intervals, are not enough to warrant a State's

36

assertion of in personam jurisdiction over a

nonresident corporation in a cause of action not related to those purchase transactions.” And the Fifth Circuit has stated, “purchases and trips related thereto, even if they occur regularly, are not, standing alone, a sufficient basis for the assertion of jurisdiction.” Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1362 n. 3 (5th Cir.1990).

Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 808 (Tex. 2002)

(emphasis added).

For these reasons, Plaintiffs-Appellees’ allegations that Appellants

acquired things from Texas simply does not state a factual basis to support

personal jurisdiction.

  • d. Plaintiffs-Appellees’ Fourth Allegation

Plaintiffs-Appellees’ Fourth Allegation, that in connection to one of

Lensing’s purchases from Heritage, he executed a form contract containing

a choice of jurisdiction clause (CR 116, 189 ¶ 14) is likewise insufficient.

Plaintiffs-Appellees again conflate the concepts of general and specific

jurisdiction. As with the contract between Ragan and Lensing, Plaintiffs-

Appellees were not parties to the purchase agreement between Lensing and

Heritage. With regard to that latter transaction, should Lensing have

defaulted, Heritage may have been able to use the jurisdictional language in

37

the contract between them to bolster its argument that Lensing should be

subjected to specific jurisdiction as to that dispute between Lensing and

Heritage involving that transaction. CR 189 ¶ 14. In Miele v. Blockbuster Inc.,

3-04-CV-1228-BD, 2005 WL 176170 (N.D. Tex. Jan. 26, 2005), the court faced

a similar claim. It explained:

Here, plaintiff fails to allege, much less prove, that the BRI Defendants have sufficient minimum contacts with the State of Texas to establish general or specific jurisdiction. Instead, plaintiff relies exclusively on a forum selection clause in the Acquisition Agreement, which provides:

This Agreement shall be governed by the laws of the State of Texas applicable to agreements wholly entered and wholly performed within the state. The parties hereby submit and consent to the exclusive jurisdiction of the courts in Dallas County in the State of Texas and North Texas Federal Courts in any action brought under or relating to this Agreement.

Ordinarily, such a contractual provision is prima facie valid and must be enforced unless the opposing party shows that enforcement would be unreasonable. However, as the BRI Defendants correctly point out, plaintiff is not a party to the Acquisition Agreement.

Id. at *4 (emphasis added).

38

Appellants are no more subject to general jurisdiction in Texas, able to

be sued by complete strangers for completely unrelated matters, than is every

lawyer who has ever conducted a WestLaw search subject to general

jurisdiction in the State of Minnesota due to the fact that West’s online user

agreement contains a forum selection clause. See CR Supp. No. 2 at 40. The

provision simply in no way supports a claim as to personal jurisdiction over

Appellants in a lawsuit brought by Appellees.

  • 3. Even if any of the pleaded facts were to be considered sufficient on their face, Appellants have fully negated them, and the evidence is legally insufficient, or alternatively, factually insufficient to support any implied findings conferring jurisdiction

Of the four specific allegations discussed above, the only one that is

disputed and the only one that arguably may be sufficient on its face to state

a basis for personal jurisdiction is Appellees’ contention that Appellants

committed torts against them in Texas. As discussed above, Appellees’ claim

that any such tort was committed in Texas is wholly conclusory and is not

supported by any actual facts. Nonetheless, if the bare allegation were to be

considered sufficient to allege a ground sufficient to support personal

jurisdiction, the claim is not supported by legally or factually sufficient

39

evidence, and Appellants have disproved it. See CR 246-48; RR 10-16; RR Ex.

2 (Admissions 1-6); RR Ex. 6.

As discussed above, Appellants dispute that they committed any tort

against Appellees, but, more importantly for the present purposes, they

dispute that they committed any such tort in Texas. CR 246-48. Appellants

met their burden to negate Appellees’ contention that they committed, or

even could have committed, any alleged tort in Texas, and any implied

finding that Appellants committed any tort in Texas is not supported by

legally sufficient, or alternatively by factually sufficient, evidence.

As argued above, for Defendants to have committed the alleged torts of

conversion or theft as against Appellees in Texas by purchasing the headstone

from Ragan, Appellants would had to have known, when Lensing was in

Texas, that they were depriving Appellees of the item without Appellees’

effective consent. Yet Appellants have proven and it is in fact undisputed that

Appellants did not know of Appellees’ existence, much less of any claim they

may have to ownership of the headstone, when Lensing briefly visited Texas

to pick up the item. It was not until long after Lensing’s trip to Texas that

Appellees informed Lensing that they were making a claim to the headstone.

40

Only at that time could Appellants possibly have committed a tort by refusing

to return the item, and it is proven and undisputed that that refusal occurred

only in Illinois. See Dolenz, 649 S.W.2d at 371; Pervasive Software Inc., 688

F.3d at 230. And without specific intent to deprive the owner of value, there

can be no theft. Ex parte Smith, 645 S.W.2d at 311.

In fact, when Appellee David Card first wrote to Mr. Lensing, making

his case for why Lensing should give him the headstone, Card effectively

admitted that Lensing was unaware that anyone other than Holly Ragan may

claim an interest in the item. See RR, Defendant’s Exhibit 6. Card stated,

“You may have thought you were acquiring this item lawfully and in good

faith from Holly Ragan. But in truth, Holly misled you

. . .

.” Id. He later

added, “I lament that you have been deceived

. . .

.” Id. When testifying at

the special appearance hearing, Card admitted, in essence, that Appellees

have no evidence that Lensing had ever heard of them until long after Lensing

acquired the headstone. RR at 11-13; 15 (line 16)-16(line 5). Card also

recounted how he, his present attorney, and an Illinois attorney all made

demands on Lensing, in Illinois, to give them the headstone well after the

acquisition was complete. RR at 11-16.

41

Appellants believe they have accurately identified Appellees’ only

actual factual claims that could possibly support a finding of personal

jurisdiction over Appellants, but, out of caution, to the extent Appellees may

try to point to other facts or their wholly conclusory claims in their pleading,

such as “defendants established sufficient contacts with Texas” (CR 116) or

that they “purposely availed themselves of the privileges of conducting

activities in Texas” (CR 115) to support their arguments, Appellants have

properly negated the claims and there is legally and factually insufficient

evidence in the record to support them. See Appellants’ Verified Special

Appearance, Verified Supplement to Special Appearance, and the affidavits

and evidence in support thereof. CR 20-34, 230-36, 239-64, and RR 11-16

(including Defendants’ Exhibits 1-8).

In the affidavits they submitted in support of their special appearance,

Appellants set forth in detail the limited extent of their contacts with Texas.

Lensing has been to Texas only four times in his life, and Lefthander

Marketing, Inc., has never had any contacts with Texas whatsoever. Neither

Appellant has ever maintained any agent, offices, or employees in Texas nor

have they ever solicited business from Texas residents. These facts are in

42

evidence and are uncontested. Lefthander Marketing, Inc., simply has never

had any contact with Texas and there is no evidence whatsoever to support

personal jurisdiction over it. Wayne Lensing’s contacts have been so minimal,

that he could not possibly have foreseen being haled into Texas by complete

strangers. See CR 246.

The only evidence presented with regard to the Special Appearance

compels but one conclusion, that Appellants are not subject to being sued by

Appellees in Texas, and Appellees’ claims should be dismissed for lack of

personal jurisdiction.

  • 4. Conclusion of Argument Regarding Issue No. 1

Appellees have not shown that Appellants have had minimum contacts

with Texas to give rise either to specific or general jurisdiction. Appellees

were not parties to the subject transaction, and there is, therefore, no specific

jurisdiction. The only allegations relating to general jurisdiction are that

Lensing made mere purchases from Texas, which plainly is not enough.

Under any analysis, these Appellants’ contacts with Texas are not sufficient

to allow these plaintiffs to hale them into court here. As the Supreme Court

has made clear, “foreseeability is an important consideration in deciding

43

whether the nonresident defendant has purposefully established ‘minimum

contacts’ with the forum state.” BMC Software Belgium, N.V., 83 S.W.3d at

795. Here, there can be no question but that Wayne Lensing’s sole act of

purchasing the subject headstone from Holly Ragan could not possibly have

made a lawsuit against him and Lefthander Marketing, Inc., in Texas, brought

by two complete strangers, foreseeable. Holly Ragan happened to live in

Texas, but, even assuming, as Appellees contend, that a purchaser such as

Lensing should have been suspicious of her claimed ownership of the

headstone, there is no evidence that he could possibly have known that the

purported rightful owners would also later happen to hale from Texas as

opposed to any other jurisdiction.

Appellants have not had sufficient minimum contacts with Texas to

confer personal jurisdiction, and Appellees’ claims against them should be dismissed.

D. Argument regarding Issue No. 2

Under the facts of this case, the trial court’s exercise of personal jurisdiction over Appellants violates traditional notions of fair play and substantial justice.

To subject a nonresident defendant to personal jurisdiction and satisfy

the demands of due process, “it must be established that the nonresident

44

defendant purposely established minimum contacts with the forum state.

Even if the nonresident defendant has purposely established minimum

contacts with the forum state, the exercise of jurisdiction may not be fair and

reasonable under the facts in a particular case.” Guardian Royal Exch. Assur.,

Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991). “[T]he

contacts are evaluated in light of other factors to determine whether the

assertion of personal jurisdiction comports with fair play and substantial

justice.” Id. (citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102,

113–15, 107 S.Ct. 1026, 1033–34, 94 L.Ed.2d 92, 105 (1987); Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528,

542–43 (1985)).

Here, Appellants’ contacts with Texas are nearly nonexistent. They do

not market to or advertise in Texas. They do not maintain offices, employees,

or agents in Texas. Lensing has been to Texas only four times in his life, and

Lefthander has never had any contact with Texas. Appellants engaged in no

conduct intentionally directed toward Texas or designed to avail themselves

of the benefits of the laws of Texas. CR 245-46. Wayne Lensing received a call

in Illinois from Holly Ragan. That she happened to be calling from Texas was

45

a random, isolated occurrence and of no consequence to Lensing. She offered

to sell an item, represented to be the item’s only lawful owner, provided

background information to support the claim, and negotiated a deal with

Lensing, all while Lensing was in Illinois. Lensing flew to Texas to pick up

the item, but he would just as well have flown to Montana if that had been

where she happened to be. CR 246.

Perhaps most importantly, it is undisputed that when Lensing

purchased the subject headstone from Holly Ragan, he was doing nothing

illegal, unlawful, wrongful, or otherwise improper in any way. There simply

exists no evidence that Appellants had any notion that Lensing was not

simply buying an item from its only rightful owner. Appellees’ real

complaint in this lawsuit is their assertion that Holly Ragan converted the

headstone for her own benefit, and deceived Lensing when she sold it to him

under false pretenses. See, e.g., RR Exhibit 6 (Card’s “I lament that you have

been deceived” letter). It would offend traditional notions of fair play and

substantial justice to require Wayne Lensing to travel to Texas to defend

himself against the claims of unknown strangers, bringing unforeseeable

claims against him, based on the allegedly wrongful conduct of a third party.

46

For this reason, if nothing else, the trial court’s exercise of personal

jurisdiction over Appellants violates Appellants’ rights to due process and

should be reversed.

CONCLUSION AND PRAYER FOR RELIEF

For the reasons stated above, the trial court erred by denying

Appellants’ special appearance. Appellants do not have minimum contacts

with Texas to justify the assertion of personal jurisdiction over them. And

under these facts, requiring Appellants to come to Texas basically to answer

for the alleged wrongdoing of Holly Ragan would offend traditional notions

of fair play and substantial justice in violation of Appellants’ due process

rights afforded them by the Constitution of the United States. Appellants,

therefore, respectfully ask that the Court of Appeals reverse the trial court’s

order denying their special appearance and dismiss all claims in this lawsuit

against them for lack of personal jurisdiction.

Respectfully submitted,

/s/Kenneth E. East Kenneth E. East State Bar No: 00790622 FOSTER & EAST 9001 Airport Freeway, Suite 675 Fort Worth, Texas 76180

47

Phone: (817) 788-1111 Fax: (817) 485-2836

ATTORNEY FOR DEFENDANTS WAYNE LENSING and LEFTHANDER MARKETING, INC.

CERTIFICATE OF COMPLIANCE

Based on the word count provided by the word processing program used to create this brief, WordPerfect X5, this brief contains 9,193 words, excluding the portions of the brief exempt from the word count under Texas Rule of Appellate Procedure 9.4(i)(1).

/s/Kenneth E. East Kenneth E. East

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served on all parties or their counsel of record on this day, May 8, 2013, as follows:

Wm. NICHOLAS MANOUSOS

D. Lee Thomas, Jr.

817-625-8866

State Bar No. 24002523 3812 N. Hall Street Dallas, Texas 75219 214-740-1711 (Telephone)

via fax and email

State Bar No. 19847500 507 West Central Ave. Fort Worth, Texas 76106

214-740-1744 (Fax)

817-625-8950

ATTORNEY FOR APPELLEES

ATTORNEY FOR DEFENDANT HOLLY RAGAN

48

Samuel E. Joyner Texas Bar No. 24036865 RossJoyner 1700 Pacific Avenue, Suite 3750 Dallas, Texas 75201 TELEPHONE: (214) 382-0894 FACSIMILE: (972) 661-9401 ATTORNEYS FOR HERITAGE AUCTIONS, INC.

/s/Kenneth E. East Kenneth E. East

49

NO. 05-13-00353-CV

IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS

WAYNE LENSING and LEFTHANDER MARKETING, INC.

Appellants

v.

DAVID CARD and CLEO LOWE

Appellees

APPELLANTS’ APPENDIX

Tab Description

Clerk’s Record Page Nos.

A

Order Denying Defendants’ Special Appearance

CR 437

B

Court’s letter, declining to issue findings of fact and conclusions of law

CR Supp. No. 1 at 4