### NO. 03

- 15

- 00335

- CV IN THE THIRD COURT OF APPEALS

____________________________________________ HERBERT ROLNICK

v.
SIGHT’S MY LINE, INC, et al

____________________________________________

Accelerated Appeal from the 200 th 

### District Court Travis County, Texas Brief of Appellee Riggs, Aleshire & Ray, P.C.

______________________________________________

KIDD LAW FIRM 819 West 11 th Street Austin, TX 78701 512

- 330

- 1709 (fax) Scott R. Kidd State Bar No. 11385500 512

- 330

- 1713 scott@kiddlawaustin.com Scott V. Kidd State Bar No. 24065556 512

- 542

- 9895 svk@kiddlawaustin.com ACCEPTED 03-15-00335-CV 6286512 THIRD COURT OF APPEALS

AUSTIN, TEXAS 7/30/2015 9:54:05 AM JEFFREY D. KYLE

CLERKi TABLE OF CONTENTS Table of Contents i Index of Authorities ii Caption 1 Statement of Facts 1 Summary of Argument 7 Argument & Authorities 8 Standard of Review 8 No Error In Denial Of Unsworn Special Appearance 9 Rolnick’s Contacts Meet The “Minimum Contacts” Test For Jurisdiction in Texas 12 Analysis Of The Jurisdictional Facts 15 Fair Play And Substantial Justice 22 Conclusion 25 Prayer 26 Certificate of Compliance 26 Certificate of Service 27ii INDEX	OF	AUTHORITIES
Cases Abilene	Diagnostic	Clinic,	PLLC	v. Paley,	Rothman, Goldstein,	Rosenberg,	Eig	&	Cooper,	Chartered, 364	S.W.3d	359	(Tex.	App.

— Eastland	2012,	no	pet.) 19 Ahrens	&	DeAngeli	v.	Flinn, 318	S.W.3d	474	(Tex.App.

— Dallas	2010,	pet.	denied) 19 Am.	Type	Culture	Collection,	Inc.	v.	Coleman, 83	S.W.3d 801	(Tex.	2002) 14 BMC	Software	Belgium,	N.V.	v.	Marchand, 83	S.W.3d	789	(Tex.	2002) 8,	9,	13 Burger	King	Corp.	v.	Rudzewicz, 471	U.S.	462	(1985) 22,	23 Casino	Magic	Corp.	v.	King, 43	S.W.3d	14	(Tex.	App.

— Dallas	2001,	pet.	denied) 10,	11 CSR	Ltd	v.	Link, 925	S.W.2d	591	(Tex.	1996) 12 Guardian	Royal	Exch.	Assurance,	Ltd	v.	English China	Clays,	P.L.C., 815	S.W.2d	223	(Tex.	1991) 15,	23 Kelly	v.	Gen.	Interior	Construction,	Inc., 301	S.W.3d	653	(Tex.	2010) 12,	13 Kytel	International	Group,	Inc.	v.	Rent

- A

- Center,	Inc., 132	S.W.3d	717	(Tex.	App.

— Dallas	2004,	no	pet.) 11 Markette	v.	X

- Ray	X

- Press	Corp., 240	S.W.3d	464 Tex. App.

— Houston[14 th Dist.]	2007,	no	pet.) 20 Michiana	Easy	Livin’	Country,	Inc.	v.	Holten, 168	S.W.3d	777	(Tex.	2005) 14,	15,	19,	20iii Moki	Mac	River	Expeditions	v.	Drugg, 221	S.W.3d	569	(Tex.	2007) 12,	13,	14 Moncrief Oil	International,	Inc.	v.	OAO	Gazprom, 414	S.W.3d	142	(Tex.	2013) 13,	15 Proskauer	Rose	LLP	v.	Pelican	Trading,	Inc., 2009	WL	242993	(Tex.	App.

— Houston	[14 th Dist.]	2009)			20,	22 Prosperous	Maritime	Corp.	v.	Farwah, 189	S.W.3d	389 (Tex. App.

— Beaumont	2006,	no	pet.) 10,	11 Retamco	Operating,	Inc.	v.	Republic	Drilling, 278	S.W.3d	333	(Tex.	2009) 13 Siemens	AG	v.	Houston	Casualty	Company, 127	S.W.3d	436	(Tex.	App.

— Dallas	2004,	no	pet.) 11 Villapando	v.	De	La	Garz a, 793	S.W.2d	274 (Tex.	App.

— Corpus	Christi	1990,	no	writ) 10 York	v.	State, 73	Tex.	651,	11	S.W.	869	(1889), aff’d	137	U.S.	15,	11	S.Ct.	869	(1889) 9 Statutes	and	Rules
TEX.	CIV.	PRAC.	&	REM.	CODE § 17.41 12
TEX.	R.	CIV.	P.	120a 91 

### NO. 03

- 15

- 00335

- CV
IN THE THIRD COURT OF APPEALS

____________________________________________ HERBERT ROLNICK

v.
SIGHT’S MY LINE, INC, et al

____________________________________________

Accelerated Appeal from the 200 th 

### District Court Travis County, Texas Brief of Appellee Riggs, Aleshire & Ray

______________________________________________

Comes	 now	 Appellee	 Riggs,	 Aleshire	 &	 Ray	 and	 files	 this Appellee’s	Brief.
STATEMENT	OF	FACTS Appellant’s	Stat ement	of	Facts	includes	many	characterizations	of the	 facts	 and	 omits	 certain	 important	 evidence.	 Accordingly,	 Appellee Riggs,	Aleshire	&	Ray	offers	its	own	Statement	of	Facts. Sight’s	 My	 Line,	 Inc.,	 (“SML”)	 is	 a	 Florida	 corporation	 that	 was engaged	in	th e	retail	optical	business	in	Texas.	(CR	389,	390).		SML	had2 locations	in	several	South	Texas	cities,	and	it	did	business	only	in	Texas. (CR	 390,	 514).	 	 The	 sole	 stockholder	 of	 SML	 was	 Stewart	 Lantz (“Lantz”),	a	resident	of	Florida.		(CR	391) Herbert	 Rolni ck	 (“Rolnick”)	 is	 a	 lawyer	 living	 in	 Coral	 Gables, Florida.	(CR	502).		He	has	represented	Lantz	and	entities	in	which	Lantz has	been	involved	for	over	twenty	years.	(CR	382).			Rolnick	represented Lantz	in	the	formation	of	SML.		(CR	390,	503). In	 2009,	 SM L	 came	 under	 investigation	 by	 the	 Texas	 Health	 & Human	 Services	 Commission	 related	 to	 a	 possible	 overcharge	 claim. (CR	 389,	 548).	 	 To	 represent	SML	in	 that	investigation,	 Lantz	 retained Jason	Ray	(“Ray”),	a	member	of	Riggs,	Aleshire	&	Ray	(“RAR”).		(CR	54 8). Ray	 is	 Board	 Certified	 in	 Administrative	 Law	 by	 the	 Texas	 Board	 of Legal	Specialization.	(CR	548). Lantz	 had	 engaged	 in	 some	 initial	 negotiations	 with	 American Optical	 Services	 (“AOS”)	 about	 a	 potential	 sale	 of	 the	 assets	 of	 SML	 to AOS,	 but	 those	 neg otiations	 had	 not	 progressed	 and	 Lantz	 had abandoned	 the	 process.	 (CR	 503

- 504).	 However,	 in	 June	 2012,	 Lantz decided	that	he	should	again	pursue	sale	of	the	SML	business	due	to	his perception	 of	 the	 regulatory	 climate	 related	 to	 the	 business.	 (CR	 382). Neg otiations	with	AOS	began	again.	(CR	504).3 AOS	is	a	Delaware	Corporation	with	its	principal	place	of	business in	Nevada.		The	parties	did	negotiate	a	contract	for	sale	of	the	assets	of SML	 to	 AOS,	 and	 that	 contract	 was	 dated	 October	 5,	 2012.	 	 Rolnick
repre sented	SML	in	 the	 negotiations	and	 sale	 for	a	 flat	 fee	 of	 between $40,000.00	and	$50,000.00.	(CR	394,	514).	The	negotiations	for	the	sale were	all	handled	by	Rolnick.	(CR	391,	505,	559). On	or	about	October	1,	2012,	Lantz	and	Rolnick	 telephoned	Ray. (CR 384,	 391,	 505,	 549

- 550).	 	 They	 explained	 to	 Ray	 that	 Lantz	 had contracted	to	sell	the	assets	of	SML,	and	they	wanted	a	Texas	lawyer	to review	 some	 of	 the	 documents.	 (CR	 549).	 	 There	 is	 a	 dispute	 in	 the evidence	concerning	whether	Ray	informed	Lantz	and	Ro lnick	that	Ray did	not	feel	qualified	to	review	documents	related	to	an	asset	sale.		Ray testified	 that	he	did	inform	 them	 of	 that	 fact	and	indicated	 that	he	did not	 want	 to	 undertake	 the	 review.	 (CR	 549,551)	 	 According	 to	 Ray’s testimony,	 Lantz	 and	 Rolnic k	 stated	 that	 they	 wanted	 him	involved	in the	transaction	anyway.	(CR	549).		According	to	Lantz	and	Rolnick,	they were	 not	 informed	 of	 any	 limitations	 on	 Ray’s	 ability	 to	 review	 the documents.	(CR	385,	506).		Ray	also	testified	that	he	informed	Lantz	and
R olnick	 that	he	would	have	another	lawyer,	Paul	Browder,	an	attorney4 with	 Blazier,	 Christensen,	 Bigelow	 &	 Virr	 (“BCBV”),	 review	 the documents

-- testimony	that	Lantz	and	Rolnick	dispute.	(CR	549). Ray	 had	 one	 more	 conversation	 with	 Rolnick	 shortly	 after	 the initial	conversation	with	Lantz	and	Rolnick.		Ray	then	received	an	email from	 Rolnick’s	 legal	 assistant	 with	 instructions	 as	 to	 what	 Rolnick wanted	Ray	to	do.	(CR	506

- 507,	552). “Mr.	 Rolnick	 is	 out	 of	 the	 country	 this	 week,	 however, pursuant	to	your	previo us	conversation	with	him,	he	asked that	 I	 forward	 you	 a	 copy	 of	 the	 Security	 Agreement	 and Promissory	 Note	 (which	 are	 attached	 to	 this	 email).	 	 Also attached	 you	will	 find	 a	 copy	 of	 the	 fully	 executed	 copy	 of the	 Agreement	 so	 you	 have	 some	 understanding	 of the transaction.	 	 Mr.	 Rolnick	 would	 like	 you	 to	 review	 the Security	Agreement	and	Promissory	Note	and	confirm	 that these	 are	 acceptable	 for	 Texas	 law,	 i.e.	 that	 they	 can	 be recorded	and	 that	 they	would	enable	us	 to	 foreclose	in	 the event	of	a	default.”	(C R	424) Ray	received	the	executed	contract,	draft	security	agreement,	and	draft promissory	note.		Ray	then	forwarded	those	documents	to	Browder	for his	 review.	 (CR	 550).	 	 Browder	 made	 comments	 and	 raised	 questions with	regard	to	the	documents.	(CR	550).		R ay	then	took	those	comments and	questions,	incorporated	them	into	an	email,	and	forwarded	them	to Rolnick.		(CR	550). Among	the	provisions	of	the	promissory	note	was	a	reference	that the	 security	 interest	 would	 be	 recorded	 in	 Delaware.	 	 The	 specific5 langu age	in	 the	promissory	note	stated	“Holder	may	 file	a	Form	UCC

- 1 with	the	Secretary	of	State	of	the	State	of	Delaware	to	perfect	such	lien of	 record.”	 (CR	 486).	 	 Contrary	 to	 the	 assertion	 by	 Appellant	 in	 his Statement	 of	 Facts	 that	 “comments	 by	 Ray	 sent	 bac k	 to	 Rolnick	 in Florida,	 however,	included	 one	indicating	 the	UCC

- 1	instead	 should	 be filed	 in	 Texas	 where	 the	 assets	 at	 issue	 were	 located,”	 what	 Browder actually	raised,	and	what	was	passed	on	in	Ray’s	email,	was	a	question. The	actual	question	that	was raised	was	as	follows: “Where	will	the	assets	be	held?		Texas,	right?		Shouldn’t	the UCC

- 1	be	filed	where	the	assets	are	located?” Rolnick	never	contacted	Ray	 to	resolve	 those	questions.	 (CR	508,	553) Rolnick proceeded	 to	 close	 the	 transaction	 on	November	 1,	 2012,	 and Ray	 had	 no	 knowledge	 of	 or	 participation	 in	 the	 drafting	 of	 the	 final documents	or	the	closing.	(CR	508

- 510,	560). The	next	 time	Ray	had	any	participation	in	 the	 transaction	at	all (or	even	knew that	it	had	closed)	was	when	he	was	contacted	by	Rolnick with	 a	 direction	 to	 record	 the	 UCC

- 1	 in	 Texas	 approximately	 two months	after	the	transaction	had	closed.	(CR	555

- 556,	560,	562).		Ray	at first	declined	because	he	did	not	know	procedurally	how	 to	do so.	(CR 562).		Rolnick	prevailed	on	Ray	to	do	so	for	him	since	Ray	was	in	Austin.6 (CR	 562).	 	 Rolnick	 sent	 the	 UCC

- 1	 to	 Ray,	 and	 Ray	 forwarded	 it	 to Browder	for	recordation	at	the	office	of	the	Secretary	of	State.		(CR	558). Ray	had	no	further	contact	wit h	Lantz	or	Rolnick	until	over	a	year later	 when	 he	 was	 contacted	 about	 AOS’s	 default.	 (CR	 560).	 	 Rolnick contacted	him	about	pursuing	litigation	 to	 foreclose	 on	 the	assets.	 (CR 560).		Again,	that	was	not	Ray’s	area	of	practice,	and	SML	was	referred to	Adam s	&	Graham	(“A&G”)	to	pursue	the	litigation.		(CR	387). SML	 filed	 suit	 against	 AOS	 on	 the	 debt	 and	 to	 foreclose	 on	 the security,	 to	 the	 extent	 the	 collateral	 still	 existed.	 	 At	 that	 time,	 AOS’s parent	company,	MacEyser	Holdings,	 filed	 for	bankruptcy	prote ction	in Delaware.		SML	filed	a	motion	to	lift	stay	in	the	bankruptcy	proceeding. That	 motion	 was	 denied	 on	 the	 basis	 that	 SML	 had	 not	 perfected	 its security	 interest	 by	 recording	 the	 UCC

- 1	 in	 Delaware.	 	 In	 light	 of	 that ruling,	 Lantz	 contacted	 Rolnick	 an d	 Ray	 concerning	 the	 issue	 of perfection	of	 the	security	interest.	(CR	512).		At	 that	 time,	Rolnick	was successful	in	diverting	Lantz’s	attention	from	him	to	Ray.	(CR	512

- 513). SML	 and	 Lantz	 then	 filed	 suit	 in	 Travis	 County	 District	 Court against	RAR,	BCB V,	and	A&G.	(CR	3).		RAR	immediately	joined	Rolnick	as a	third

- party	defendant,	and	plaintiffs	then	amended	their	pleadings	to add	Rolnick	as	a	defendant.	(CR	17,	137).		In	answer	to	both	RAR’s	third

-7 party	 petition	 and	 plaintiffs’	 First	 Amended	 Original	 Pe tition,	 Rolnick filed	 unsworn	 special	 appearances.	 (CR	 23,	 147).	 	 Rolnick’s	 special appearance	was	heard	and	overruled	by	the	trial	court.	(CR	697).

SUMMARY	OF	ARGUMENT The	 requirements	 for	 filing	 a	 special	 appearance	 are	 stated	 in Rule	 120a,	 Texas	 Rules of	 Civil	 Procedure.	 	 Strict	 compliance	 with	 the rule	 is	 required.	 	 Rule	 120a	 requires	 that	 the	 special	 appearance	 be made	by	sworn	motion.		The	special	appearances	filed	by	Rolnick	were not	sworn,	and	 therefore	were	not	in	compliance	with	Rule	120a.		The trial	 court	 does	 not	 commit	 error	 in	 overruling	 an	 unsworn	 special
appearance. Jurisdiction	 of	 nonresident	 defendants	 is	 determined	 based	 on whether	 the	 defendant	 has	 sufficient	minimum	 contacts	with	 Texas	 to support	 jurisdiction	 under	 the	 Texas	 Long

- Arm Statute.	 	 Those minimum	 contacts	 exist	 if	 the	 nonresident	 defendant	 has	 availed himself	 of	 the	 privilege	 of	 conducting	 activities	 in	 Texas.	 	 The	 contact with	 Texas	 must	 have	 been	 purposeful,	 and	 the	 defendant	 must	 have sought	some	benefit	from	the	contact. In	addition,	the	assertion	of	such8 jurisdiction	 must	 comport	 with	 traditional	 notions	 of	 fair	 play	 and substantial	justice. SML’s	business	was	entirely	a	Texas	operation.		All	of	its	business activity	 was	 in	 Texas,	 and	 all	 of	 its	 assets	 (including	 its	 r eal	 estate interests)	were	in	Texas.		When	SML	sold	its	assets,	Rolnick	negotiated the	 contract	 and	 closed	 the	 transaction.	 	He	 had	 Jason	 Ray	 review	 the promissory	 note	 and	 security	 agreement,	 but	 all	 decisions	 about perfection	of	the	security	interest	wer e	made	by	Rolnick.		Rolnick	made the	 decision	 to	 record	 the	 UCC

- 1	 in	 Texas,	 and	 Rolnick	 sent	 it	 to	 Ray with	instructions	 to	 record	it	in	Texas.	 	When	SML’s	 purchaser	 sought bankruptcy	protection	it	was	discovered	that	Rolnick	had	recorded	the
UCC

- 1	in	the wrong	state	to	properly	perfect	that	interest.		Since	the	suit by	SML	and	its	owner	is	over	the	failure	to	properly	perfect	that	security interest,	Rolnick	has	sufficient	contacts	with	Texas	 to	be	subject	 to	 the jurisdiction	of	the	Texas	courts.

ARGUMENT &	AUTHORITIES Standard	of	Review Whether	a	trial	court	has	personal	jurisdiction	over	a	defendant	is a	matter	of	law	and	is	reviewed de	novo.		BMC	Software	Belgium,	N.V.	v.9 Marchand, 83	S.W.3d	 789,	 794	 (Tex.	 2002).	 	 If	 the	 trial	 court	 does	 not issue	 findi ngs	 of	 fact	 and	 conclusions	 of	 law,	 all	 facts	 necessary	 to support	the	judgment	and	supported	by	the	evidence	are	implied. BMC at	795. No	Error	In	Denial	of	Unsworn	Special	Appearance Rule	120a	was	adopted	to	address	the	issue	presented	by York	v. State, 73	 Tex.	 651,	 11	 S.W.	 869	 (1889),	 aff’d	 137	 U.S.	 15,	 11	 S.Ct.	 869 (1889).	 	 	 The	 court	 in York held	 that	 any	 appearance,	 even	 one	 to challenge	service	or	jurisdiction,	constituted	a	general	appearance.		This resulted	 in	 there	 being	 no	 direct	 way	 that	 a	 nonre sident	 defendant could	 challenge	 t he	 court’s	 jurisdiction	 over	 that defendant.	 	 That continued	 to	 be	 the	 law	 in	 Texas	 until	 the	 Supreme	 Court	 of	 Texas adopted	 Rule	 120a	 in	 1962.	 	 Rule	 120a	 provided	 a	 vehicle	 for	 a defendant	 to	challenge	 the	court’s in	pers onam jurisdiction	without	 the challenge	itself	constituting	a	general	appearance. Rule	 120a	 provides	 specific	 requirements	 to	 which	 the	 special appearance	must	conform.		These	requirements	include,	among	others, that	the	“special	appearance	shall	be	made	b y	sworn	motion	filed	prior to	 motion	 to	 transfer	 venue	 or	 any	 other	 plea,	 pleading,	 or	 motion....”10 The	 motion	 must	 be	 heard	 before	 a	 motion	 to	 transfer	 venue	 or	 any other	plea	or	pleading.
RAR was	an	original	defendant	in	 the	Plaintiffs’	Original	Petition. (CR	 3).	 	 Upon	 filing	 its	 original	 answer, Herbert	 Rolnick	 was immediately added	as	a	third

- party	defendant	by RAR

. (CR	17). Rolnick filed	a	special	appearance	 to	 the	 third

- party	petition	 filed	by RAR,	and

t he	 plaintiffs	 then	 amended	 and	 added	 Rolnick	 as an	 additional defendant. (CR	137). Rolnick	again	filed	a	special	appearance	as	to	the plaintiff’s	 First	 Amended	 Original	 Petition. (CR	 147). Neither	 of	 the special	 appearances	 filed	 by	 Rolnick	 were	 sworn	 as	 required	 by	 Rule 120a.		Rolnick	did	file	two	ne arly	identical	affidavits	in	conjunction	with the	 special	 appearances	 he	 filed.	 	However,	in	 those	 affidavits	 Rolnick swears	 to	 the	 fa cts	 stated	 in	 the	 affidavits	 but does	 not	 swear	 to	 the facts	stated	in	the	special	appearances	he	filed. (CR	35,	159).
St rict	 compliance	with	 the	 rule	governing	 special	appearances	is required. Casino	Magic	Corp.	v.	King, 43	 S.W.3d	 14	 ( Tex.	 App.

— Dallas 2001,	 pet.	 denied ).	 	A	 trial	 court	 does	 not	 commit	error	in	 denying	an unsworn	special	appearance. Casino	Magic	Corp at	18 ; Villapando	v.	De La	 Garza, 793	 S.W.2d	 274,	 276	 (Tex.	 App.

— Corpus	 Christi	 1990,	 no writ); Prosperous	Maritime	Corp.	v.	Farwah, 189	S.W.3d	389,	392	 (Tex.11 App.

— Beaumont	 2006,	 no	 pet. ).	 	 When	 the	 affidavits	 attached	 to	 the special	 appearance	 pleadings	 do	 no t	 state	 that	 the	 facts	 set	 out	in	 the ple adings	 are	 true	 and	 correct,	 but	instead state	 only	 that	 the	 facts	in the	affidavits	are	true	and	correct,	the	affidavits	do	not	verify	the	special
appearance. Prosperous	Maritime at	393

- 394; Casino	Magic at	18.		T he courts	have	routinely	upheld	 the	denial	of	a	special	appearance	on	 the basis	 that	 the	 nonresident	 failed	 to	 file	 a	 sworn	 motion.	 	 See Kytel International	Group,	Inc.	v.	Rent

- A

- Center,	Inc., 132	S.W.3d	717,	719	( Tex. App.

— Dallas	 2004,	 no	 pet.); Siemens	 A G	 v.	Houston	 Casualty	 Company, 127	S.W.3d	436,	439	(Tex.	App.

— Dallas	2004,	no	pet.). Rolnick	did	not	file	a	sworn	motion	as	required	by	Rule	120a. (CR 23,	147). While	Rolnick	did	 file	affidavits	in	 support	 of	his	motion,	all that	the	affidavits	did	was	s wear	to	the	facts	stated	in	the	affidavits. (CR 35,	 159). Rolnick’s	 affidavits	 did	 not	 swear	 to	 the	 facts	 stated	 in	 his special	appearance.		Rolnick’s	special	appearance	was	not	in	compliance with	the	Rule,	and	therefore	the	trial	court	did	not	commit	any error	in denying	the	special	appearance.12 Rolnick’s	Contacts	Meet	the	“Minimum	Contacts”	Test for	Jurisdiction	in	Texas Jurisdiction	over	nonresident	defendants	is	governed	by	the	Texas Long

- Arm	 Statute,	 TEX.	 CIV.	 PRAC.	 &	 REM.	 CODE § 17.41 et	 seq. The extent	of	the	jurisdictional	grant	in	the	Texas	Long

- Arm	Statute	is	to	the fullest	 extent	 permitted	 by	 the	 federal	 constitutional	 requirements	 of due	process. Moki	Mac	River	Expeditions	v.	Drugg, 22 1	S.W.3d	569,	575 (Tex.	2007). A	 Texas	 court	 may	 exe rcise	 personal	 jurisdiction	 over	 a nonresident	defendant	only	if	the	requirements	of	both	the	due	process clause	of	 the	Fourteenth	Amendment	 to	 the	United	States	Constitution and	 the	 Texas	 Long

- Arm	 Statute	 are	 satisfied. CSR	 Ltd.	 v.	 Link, 925 S.W.2d	 591, 594	 (Tex.	 1996). The	 assertion	 of	 jurisdiction	 over	 a nonresident	 is	 proper	 and	 consistent	 with	 due	 process	 when	 the nonresident	 defendant	 has	 established	 minimum	 contacts	 with	 the forum	 state	 and	 the	 exercise	 of	 jurisdiction	 comports	 with	 traditional

not ions	 of	 fair	 play	 and	 substantial	 justice. Kelly	 v.	 Gen.	 Interior Construction,	 Inc., 301	 S.W.3d	 653	 (Tex.	 2010).	 	 The	 defendant	 has established	minimum	contacts	with	the	forum	state	when	the	defen dant has	purposefully	availed	him self	of	the	privilege	of conducting	activities13 within	 the	 forum	 state,	 and	 has	 thus	 invoked	 the	 benefits	 and protections	 of	 the	 forum	 state’s	 laws. Retamco	 Operating,	 Inc.	 v. Republic	 Drilling, 278	 S.W.3 d	 333	 (Tex.	 2009); Moncrief	 Oil International,	Inc.	v.	OAO	Gazprom, 414	S.W.3 d	142	(Tex.	2013). The	plaintiff	(and	third

- party	plaintiff)	bears	the	initial	burden	of pleading	 sufficient	 allegations	 to	 bring	 the	 nonresident	 defendant within	 the	provisions	of	 the	Texas	long

- arm	statute. Moki	Mac at	574; BMC	Software at	793.		Once	the	plaintiff	satisfies	this	burden,	the	burden shifts	 to	 the	 nonresident	 defendant	 to	 negate	 all	 bases	 for	 personal jurisdiction	alleged	by	the	plaintiff. Kelly	v.	Gen.	Interior	Constr.,	Inc., 301 S.W.3d	653,	658	(Tex.	2010). As	 noted	in R etamco	Operating,	 Inc, a	 nonresident’s	 contacts	 can give	 rise	 to	either	 specific	jurisdiction	 or	general	jurisdiction.	 	Specific jurisdiction	 exists	 when	 the defendant	 purposefully	 avails	 him self	 of conducting	activities	in	 the	 forum	 state,	and	 the	 cause	 o f	action	arises from	or	is	related	to	those	contacts	or	activities. In	 a	 specific	 jurisdiction	 analysis,	 the	 court	 must	 focus	 on	 the relationship	 between	 the	 defendant,	 the	 forum,	 and	 the	 litigation. Moncrief	Oil, 414	S.W.3d	at	150.		There	must	be	a	su bstantial	connection between	the	defendant’s	contacts	with	the	forum	and	the	operative	facts14 of	 the	 litigation	 itself. Moki	 Mac, 221	 S.W.3d	 at	 585.	 	 In	 the	 specific jurisdiction	 analysis,	 the	 court	 must	 focus	 on	 only	 the	 defendant’s contacts	with	 the	 foru m.		The	defendant’s	contacts	must	be	purposeful and	 not	 random,	 isolated,	 or	 fortuitous,	 and	 the	 defendant	 must	 seek some	benefit,	advantage,	or	profit	by	availing	himself	of	the	jurisdiction. Michiana	 Easy	 Livin’	 Country,	 Inc.	 v.	Holten, 168	 S.W.3d	 777, 785	 (Tex. 2005). The	 defendant’s	 activities,	 whether	 they	 consist	 of	 direct	 acts within	 Texas	 or	 conduct	 outside	 Texas,	 must	 justify	 a	 conclusion	 that the	 defendant	 could	 reasonably	 anticipate	 being	 haled	 into	 a	 Texas

court. Am.	Type	Culture	Collection, Inc.	v.	Coleman, 83	S.W.3d	 801,	 806 (Tex.	2002).		Jurisdiction	is	premised	on	the	notions	of	implied	consent that,	 by	 invoking	 the	 benefits	 and	 protections	 of	 a	 forum’s	 laws,	 the nonresident	 consents	 to	 suit	 there. Michiana at	 785.	 	 It	 is	 the	 quality and nature	of	the	defendant’s	contacts	with	the	forum	state,	rather	than their	number,	 that	are	important	in	analyzing	minimum	 contacts. Am. Type	Culture	Collection at	806. Specific	 jurisdiction	 is	 established	 if	 the	 defendant’s	 alleged liability	 arises	 out of	 or	 is	 related	 to	 an	 activity	 conducted	 within	 the forum	 state. Moki	 Mac at	 575

- 576.	 	 When	 specific	 jurisdiction	 is15 asserted,	 the	 minimum

- contacts	 analysis	 focuses	 on	 the	 relationship among	the	defendant,	the	forum,	and	the	litigation. Moncreif	Oil at 150; Guardian	 Royal	 Exch.	 Assurance,	 Ltd	 v.	 English	 China	 Clays,	 P.L.C., 815 S.W.2d	 223,	 228	 (Tex.	 1991).	 	The	 focus	is	 on	 the	 defendant’s	 conduct and	connections	with	the	forum	state	in	relation	to	the	alleged	liability. Michiana at	788

- 790.

Analysis	O f The	Jurisdictional	Facts Rolnick	 was	 the	 person	 in	 charge	 of	 negotiating	 and	 closing	 the sale	of	SML’s	assets.	(CR	391,	392).		All	of	 those	assets	were	located	in Texas,	 including	 SML’s	 real	 property	 interests.	 (CR	 390).	 	 Ray’s participation	in	the	tran saction	was	minimal

— he	was	asked	to	review	a note	and	 security	agreement	 to	 see	if	 they	 could	 be	 recorded	in	Texas and	 if	 SML	 would	 be	 able	 to	 foreclose	 upon	 default.	 	 Rolnick	 directed what	Ray	was	to	do,	and	the	limitations	on	Ray’s	engagement.		Ray	 felt that	he	had	been	engaged	by	Rolnick.	(CR	556). After	forwarding	comments	and	questions	to	Rolnick,	Ray	was	not contacted	again	by	Rolnick	to	answer	any	of	the	questions	that	had	been raised	about	the	documents.	(CR	555

- 556).		Instead,	Rolnick	made	all	of the	 decisions	 about	 the	 sale	 of	 the	 Texas	 assets	 and	 closed	 the16 transaction	without	 Ray	 even	 being	informed	 that	 the	 transaction	 had closed. Approximately	 two	 months	 after	 closing,	 Rolnick	 contacted	 Ray and	requested	that	Ray	record	the	UCC

- 1	for	Rolnick in	Texas.	(CR	555

- 556).		The	UCC

- 1	had	been	drafted	or	approved	by	Rolnick,	and	Ray	had never	 seen	 it.	 	 At	 first	 resistant,	 Ray	 eventually	 agreed	 to	 record	 the document	 for	 Rolnick	 with	 the	 Secretary	 of	 State.	 (CR	 561).	 	 The decision	 to	 record	 it	 in	 Texas was	 Rolnick’s	 decision,	 and	 Ray	 was merely	performing	a	 favor	upon	Rolnick’s	request.	(CR	393,	562).		 It	is no	 different	 than	 if	 Rolnick	 had	 himself	 recorded	 the	 UCC

- l	 at	 the Secretary	of	State. None	 of	 this	 analysis	 focuses	 on	 the	 conduct	 of	 anyone	 but
R olnick.	 	 He	 negotiated	 the	 contract	 for	 the	 sale	 of	 Texas	 assets.	 	 He negotiated	 the	 sale	 of	 Texas	 real	 estate	 interests.	 	 He	 decided	 how	 to obtain	the	security	interest	in	the	Texas	assets.		And	most	importantly, Rolnick	directed	the	recordation	of	the	UC C

- 1	in	Texas. The	 plaintiffs’	 claims	 here	 are	 focused	 on	 their	 claimed	 losses from	 the	 loss	 of	 those	 Texas	 assets.	 	 Their	 complaints	 relate	 to	 their claimed	security	interests	in	those	assets,	and	their	particular	complaint is	that	the	recordation	of	th at	security	interest	in	Texas	was	negligence.17 Rolnick	 negotiated	 and	 closed	 the	 transaction,	 and	 he	 made	 all	 of	 the decisions	 related	 to	 obtaining	 and	 protecting	 the	 plaintiffs’	 security interests.	 	 Most	 specifically,	 Rolnick	 is	 the	 one	 who	 had	 the	 UCC

- 1 recorded	in	Texas. These	 are	 not	 fortuitous	 contacts	 with	 Texas.	 	 Rolnick	 was certainly	aware	where	all	of	the	assets,	including	the	real	property,	were located	 when	 he	 undertook	 the	 representation.	 	 Rolnick	 made	 the conscious	decision	to	record	the	UCC

- 1	in	Texas,	and	he	is	the	one	who sent	it	to	Texas	 for	 filing.		That	was	certainly	a	purposeful	contact,	and was	 not	 random,	 fortuitous,	 or	 attenuated.	 	 These	 are	 only	 Rolnick’s contacts	 with	 Texas,	 and	 this	 analysis	 does	 not	 consider	 any	 other person’s	c ontacts	or	activities. Rolnick	certainly	sought	to	benefit	 from	these	contacts.		Not	only had	he	represented	Lantz	and	his	entities	for	a	number	of	years,	Rolnick made	a	fee	of	over	$40,000.00	for	handling	this	Texas	sale.		To	say	that
Rolnick	did	not	see k	or	obtain	any	benefit	from	his	contacts	with	Texas (including	 the	 recordation	 of	 the	 UCC

- 1)	 is	 to	 turn	 a	 blind	 eye	 to	 the realities	of	the	practice	of	law. These	contacts	are	directly	related	to	the	pending	litigation.		The plaintiffs’	claimed	damages	a re	the	loss	of	the	Texas	assets	that	were	to18 serve	as	security.		The	specific	act	about	which	the	plaintiffs’	complain	is the	 recording	 of	 the	 UCC

- 1	 in	 Texas,	 an	 act	 specifically	 directed	 by Rolnick.	 	 Jurisdiction	 of	 Rolnick	 is	 obvious	 based	 on	 his	 conduct and connections	with	Texas	in	relation	to	this	alleged	liability. Appellant	 seems	 to	 argue	 that	 the	 conventional	 analysis	 of personal	jurisdiction	that	applies	to	all	other	defendants	does	not	apply to	Rolnick	solely	because	he	is	a	lawyer.		According	to the	argument	by Appellant,	 there	 is	 a	 special	 “Lawyer	 Rule.”	 	 Under	 that	 “rule”	 as advanced	 by	 Appellant,	 as	 long	 as	 the	 nonresident	 lawyer	 sits	 in	 his office	 in	 another	 State,	 he	 simply	 cannot	 be	 subject	 to	 jurisdiction	 in Texas	 no	 matter	 how	 much	 he	 has contact	 with	 Texas	 and	 no	 matter how	much	those	contacts	are	the	source	of	the	Texas	litigation.		That	is not	and	cannot	be	the	law. Lawyers	do	not	get	a	 free	pass.		The	cases	cited	by	Appellant	 for his	odd	argument	are	all	distinguishable	on	 their	 facts .		 In	 fact,	each	of those	cases	analyzes	 the	jurisdictional	issues	just	as	Appellee	has	done in	 this	 brief.	 	 In	 those	 cases,	 the	 court	 has	 analyzed	 the	 quality	 and nature	of	 the	lawyer’s	contacts	with	Texas.		 In	each	of	 those	cases,	 the court	has	analyzed the	connections	with	Texas	in	relation	to	the	alleged liability.	 	 Those	 courts	 did	 not	 decide	 that	 simply	 because	 the	 lawyer19 was	 not	 physically	 in	 Texas	 he	 could	 not	 be	 subject	 to	 jurisdiction	 in
Texas.
In Abilene	 Diagnostic	 Clinic,	 PLLC	 v.	 Paley,	 Rothman,	 Goldstein, Rosenberg,	 Eig	 &	 Cooper,	 Chartered, 364	 S.W.3d	 359	 (Tex.	 App.

— Eastland	 2012,	 no	 pet.),	 a	 Texas	 clinic	 sued	 a	 Maryland	 law	 firm	 for alleged	 malpractice	 in	 the	 preparation	 of	 a	 defined	 benefit	 pla n.	 	 The claim	of	specific	jurisdiction	in	 that	case	was	 that	all	of	 the	defendants “purposefully	availed	 themselves	of	 the	benefits	of	Texas	law	by	doing business	with	a	Texas	entity.”		 In	sum,	what	the	defendant	had	done	is prepare	several	defined	benefit plans	in	Maryland	and	send	them	to	the plaintiff	 in	 Texas.	 	 As	 the	 court	 noted,	 this	 is	 the	 “direct

- a - tort” jurisdictional	theory	that	was	rejected	in Michiana. The	court	held	that to	 determine	 specific	 jurisdiction,	 the	 court	 had	 to	 focus	 on	 whether the re	was	a	substantial	connection	between	the	defendant’s	purposeful contacts	 with	 the	 forum	 state	 and	 the	 operative	 facts	 of	 the	 litigation. The	 court	 noted	 that	 Texas	 authority	 had	 focused	 on	 where	 the	 legal work	was	performed,	but	the	jurisdictional	anal ysis	on	which	the	court determined	the	case	was	the	traditional	analysis	of	specific	jurisdiction.
In Ahrens	&	DeAngeli	v.	Flinn, 318	S.W.3d	 474	 (Tex.	App.

— Dallas 2010,	 pet.	 denied),	 a	Washington	 and	 Idaho	 law	 firm	 was	 sued,	 along20 with	 others,	 for	 promoti ng	 an	 abusive	 tax	 shelter.	 	 The	 law	 firm	 had provided	 representation	 to	 one	 of	 the	 other	 defendants	 in	 the developing	and	marketing	 of	 the	 tax	 shelter.	 	However,	 the	legal	work had	 all	 been	 performed	 in	 Washington	 or	 Idaho,	 and	 only communicated	 to	 a	 codef endant	 in	 Texas.	 	 The	 court	 utilized	 the traditional	 analysis	 in	 determining	 that	 there	 were	 not	 sufficient contacts	with	Texas	 to	support	personal	jurisdiction.		Performing	legal work	in	 one	 state	and	merely	 communicating	with	 persons	in	another
state	 is not	 enough	 in	 itself	 to	 support	 jurisdiction.	 	 However,	 in	 the present	 case,	 Rolnick	 actually	 took	 action	 in	 Texas	 with	 regard	 to perfecting	the	security	interest	in	the	collateral,	and	that	is	at	the	core	of plaintiffs’	claims	in	this	case. Proskauer	Ros e	LLP	v.	Pelican	Trading,	Inc., 2009	WL	242993	(Tex. App.

— Houston	 [14 th Dist.]	 2009,	 no	 pet.)	 also	involved	 an	 abusive	 tax shelter.	 	 The	 plaintiffs	 had	 been	 introduced	 to	 the	 concept	 of	 the	 tax shelter	 by	 their	 accounting	 firm.	 	 The	 accounting	 firm	 had

rec ommended	 that	 the	 plaintiffs	 use	 Proskauer	 Rose	 to	 prepare	 and deliver	an	 opinion	letter	 on	 the	 proposed	 tax	 shelter.	 	 Proskauer	Rose prepared	drafts	of	 the	opinion	letter,	communicated	with	 the	plaintiffs (Texas	residents)	and	ultimately	prepared	the	opin ion	letter	and	sent	it21 to	 the	 Texas	 residents.	 	However,	 all	 of	 Proskauer	Rose’s	work	was	in New	 York.	 	 Again,	 the	 court	 conducted	 a	 traditional	 specific jurisdictional	 analysis.	 	 Routine	 correspondence	 from	 the	 out

- of

- state lawyer	 is	 not	 the	 kind	 of	 purpo seful	 contacts	 that	 support	 personal jurisdiction,	 and	 the	 sending	 of	 the	 opinion	 letter	 to	 Texas	 could	 not support	jurisdiction	as	 “directing	a	 tort	 to	Texas”	under	 the	holding	in
Michiana. The	present	case	differs	markedly	from	the	facts	in Proskauer
Ro se. In	 the	 present	 case,	Rolnick’s	 filing	 of	 the	UCC

- 1	in	 Texas	is	 the basis	on	which	the	plaintiffs	claim	liability. Markette v.	 X

- Ray	 X

- Press	 Corp., 240	 S.W.3d	 464	 (Tex.	 App.

— Houston	 [14 th Dist.]	 2007,	 no	 pet.)	 involved	 an	 Indiana	 attorney representing	 a	 Texas	 resident	 in	 an	 Indiana	 lawsuit.	 	 The	 client	 had challenged	 the	jurisdiction	of	 the	 Indiana	court,	and	 that	challenge	had been	 denied.	 	 The	 attorney	 wrote	 the	 Texas	 client	 and	 reviewed the three	 alternatives	 available	 to	 it,	 one	 of	 which	 was	 to	 allow	 a	 default judgment	in	Indiana	and	challenge	the	Indiana	court’s	jurisdiction	when the	plaintiff	in	the	Indiana	case	sought	to	enforce	the	judgment	in	Texas. The	client	adopted	that	strateg y,	and	it	ultimately	proved	unsuccessful. When	 the	 client	 sued	 the	 Indiana	lawyer	 for	malpractice	in	 Texas,	 the court	 again	 applied	 a	 traditional	 specific	 jurisdiction	 analysis	 and22 determined	that	it	had	to	focus	on	the	connection	between	the	contacts and the	litigation,	 and	it	 rejected	 the	 “direct

- a - tort”	 theory.	 	 The	mere sending	 of	 a	 letter	 from	 one	 jurisdiction	 to	 another,	 as	 in Proskauer, differs	 markedly	 from	 the	 filing	 of	 a	 legal	 document	 such	 as	 a	 UCC

- 1, especially	when	the	filing	of	that	UCC

- 1	is at	the	core	of	the	litigation. Under	 the	 controlling	 decisions	 by	 the	 Supreme	 Court	 of	 Texas and	 the	 evidence	 in	 this	 record,	 Rolnick	 had	 sufficient	 minimum contacts	 with	 Texas	 to	 subject	 him	 to	 jurisdiction	 in	 this	 case. Accordingly,	 the	 District	 Court of	 Travis	 County	 has	 personal jurisdiction	 of	 him,	 and	 the	 trial	 court	 correctly	 decided	 that	 the
minimum

- contacts	 requirements	 of	 the	 Texas	 Long

- Arm	 statute	 had been	satisfied. Fair	Play	and	Substantial	Justice Even	 if	 a	 defendant	 has	 the	 minimum	 contact s	 with	 Texas	 to justify	the	assertion	of	jurisdiction	under	the	long

- arm	statute,	the	court cannot	exercise	jurisdiction	if	doing	so	would	offend	traditional	notions of	 fair	play	and	substantial	justice. Burger	King	Corp.	v.	Rudzewicz, 471 U.S.	 462,	 477	 ( 1985).	 	 Only	 in	 “rare	 cases”	 will	 the	 exercise	 of jurisdiction	not	comport	with	fair	play	and	substantial	justice	when	the nonresident	 defendant	 has	 minimum	 contacts	 with	 the	 forum	 state.23 Burger	King at	471.		In	determining	whether	the	assertion	of	jurisd iction comports	with	 fair	play	and	substantial	justice,	 the	court	considers	(1) the	 burden	 on	 the	 defendant;	 (2)	 the	 interests	 of	 the	 forum	 state	 in adjudicating	 the	 dispute;	 (3)	 the	 plaintiff’s	 interest	 in	 obtaining convenient	 and	 effective	 relief;	 (4)	 th e	 interstate	 judicial	 system’s interest	in	obtaining	the	most	efficient	resolution	of	controversies;	and (5)	 the	 shared	interest	 of	 the	 several	States	in	 furthering	 fundamental substantive	social	policies. Royal	Guardian at	232. The	 burden	 on	 this	 partic ular	 defendant	 is	 certainly	 no	 greater than	 that	 on	 any	 nonresident	 defendant	 who	 must	 defend	 himself	 in another	 jurisdiction.	 	 However,	 defending	 himself	 in	 Texas	 would	 not put	a	 significantly	higher	 burden	 on	Rolnick	 than	defending	himself	in Florida,	al though	he	would	probably	have	to	travel	to	Texas	for	the	trial. While	 the	 initial	 discovery	 in	 this	 case	 was	 limited	 to	 the	 issue	 of jurisdiction,	 Rolnick	 has	 already	 been	 deposed	 and	 it	 may	 not	 be necessary	 to	 depose	 him	 again.	 	 Therefore,	 the	 added	 burd en	 of defending	 himself	 in	 Texas	 would	 be	 minimal,	 especially	 when compared	to	the	additional	burden	on	the	plaintiff	and	other	defendants in	pursuing	Rolnick	in	Florida	in	a	separate	case.24 The	 interests	 of	 Texas	 in	 adjudicating	 the	 dispute	 certainly

outw eigh	 the	 interests	 of	 any	 other	 state	 in	 adjudicating	 this	 dispute. This	dispute	involves	interests	in	Texas	assets,	including	real	property. The	 dispute	 involves	 the	 application	 of	 Texas	 law,	 and	 the	 dispute involves	 the	 adjudication	 of	 the	liability	 of three	 Texas	 entities.	 	 Since Rolnick	 is	 the	 one	 largely	 (if	 not	 solely)	 responsible	 for	 any	 failure	 to comply	 with	 the	 standard	 of	 care,	 Texas	 has	 a	 significant	 interest	 in adjudicating	the	liability	of	all	the	parties	in	one	suit. The	 plaintiff	 can	 only get	jurisdiction	 of	 RAR,	 BCBV,	 and	 A&G	in Texas.	 	 While	 the	 plaintiffs	 are	 Florida	 residents,	 the	 plaintiffs	 must litigate	their	claim	against	the	Texas	defendants	in	Texas.		It	is	certainly more	convenient	 for	 the	plaintiffs	 to	litigate	one	case	against all	of	 the defendants	 in	 Texas	 than	 to	 litigate	 one	 case	 in	 Texas	 against	 three Texas	defendants	and	one	case	in	Florida	against	one	Florida	defendant. Additionally,	 RAR	 is	 the	 party	 who	 initially	 joined	 Rolnick	 in	 this litigation.	 	 It	 is	 certainly	 more	 c onvenient	 and	 effective	 for	 RAR	 to litigate	one	case	in	Texas	than	to	have	to	defend	the	case	in	Texas,	and	if an	adverse	result	is	reached,	pursue	a	separate	case	against	Rolnick	in Florida.25 For	the	interstate	judicial	system,	the	most	efficient	resoluti on	of this	dispute	is	 to	dispose	of	it	in	one	 trial.		Since	 the	Texas	defendants are	only	amenable	to	jurisdiction	in	Texas,	the	most	efficient	resolution is	 to	 try	 one	 case	 in	 Texas	 against	 all	 defendants,	 including	 Rolnick, rather	 than	 try	 one	 case	 in	 Te xas	 and	 potentially	 multiple	 cases	 in Florida. It	 is	 the	 rare	 case	 indeed	 when	 asserting	 jurisdiction	 over	 a nonresident	offends	 the	 traditional	notions	of	 fair	play	and	substantial justice	 if	 the	 defendant	 has	 sufficient	 minimum	 contacts	 to	 support juri sdiction.		This	is	not	that	rare	case.		Rolnick	has	sufficient	minimum contacts	 with	 Texas	 to	 support	 the	 assertion	 of	 jurisdiction,	 and	 the assertion	of	 that	jurisdiction	does	not	offend	 traditional	notions	of	 fair play	and	substantial	justice.
CONCLUSION The	 transaction	 out	 of	 which	 this	 case	 grows	 was	 a	 Texas transaction	 involving	 Texas	 assets	 and	 Texas	 real	 property	 interests. Rolnick	was	the	person	who	negotiated	the	contract,	prepared	all	of	the documents,	 closed	 the	 transaction,	 and	 determined	 to	 re cord	 the security	interest	in	 Texas.	 	 Rolnick’s	 contacts	with	 Texas,	 especially	in the	all

- important	 recording	 of	 the	UCC

- 1	in	Texas,	were	 not	 fortuitous26 but	rather	were	deliberate.		If	recording	the	UCC

- 1	in	Texas,	as	Rolnick did,	is	the	basis	of	liabilit y,	then	Rolnick	certainly	had	minimum	contacts with	Texas.		If	the	plaintiffs	are	going	to	assert	that	there	was	negligence in	 the	 way	 the	 security	interest	 was	 perfected	 by	 filing	in	 Texas,	 then Rolnick	needs	to	answer	for	that	act.		It	is	only	fair	and	j ust	that	he	be	a party	to	this	proceeding.
PRAYER Wherefore,	 Appellee	 Riggs,	 Aleshire	 &	 Ray	 prays	 that	 the	 court affirm	the	order	of	the	trial	court	denying	Rolnick’s	special	appearance.
KIDD LAW FIRM 819 West 11 th Street Austin, TX 78701 512

- 330

- 1709 (fax) /s / Scott R. Kidd Scott R. Kidd State Bar No. 11385500 512

- 330

- 1713 scott@kiddlawaustin.com Scott V. Kidd State Bar No. 24065556 512

- 542

- 9895 svk@kiddlawaustin.com Certificate of Compliance This brief complies with the type

- volume limitations of Texas Rule of Appellate Procedure 9.4. This brief was prepared using Microsoft Word for MAC, and exlusive of the exempted portions listed in Rule 9.4 contains 5157 words. / s/Scott R. Kidd27 Certificate of Service A copy of this brief has been served on Ruth Malinas, J. Hampton Skelton, Michael Johnson, and Robert Valdez through the electr onic filing system this 29 th day of July, 2015. / s/Scott R. Kidd