Reversed and remanded and Plurality, Concurring, and Dissenting Opinions 

filed January 24, 2013.

In the

Fourteenth Court of Appeals

NO. 14-11-01074-CV

KEN HOAGLAND, Appellant

V.

BILL BUTCHER, KARI BUTCHER, BUTCHER & BUTCHER, AND OCTV 

PARTNERS, LLC, Appellees

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2010-58144

D I S S E N T I N G O P I N I O N

The plurality opinion concludes that the Butchers and OCTV failed to 

properly negate every ground for personal jurisdiction alleged in Hoagland’s 

petition and that, therefore, the burden did not shift to Hoagland to prove his 

jurisdictional facts. Plurality Opinion at 9-12. It, as well as the concurring 

opinion, rejects all of appellees’ affidavits as conclusory. I respectfully disagree.

First, I disagree with this holding because it was not briefed by Hoagland. 

Hoagland did not argue or brief that the Butchers’ affidavits were conclusory, nor 
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that we should reject the OCTV affidavit because it did not provide the underlying 

facts to support its conclusions.

Second, I do not agree that the Butchers’ affidavits are so conclusory that 

they did not shift the burden to Hoagland to prove his jurisdictional facts. The 

plurality opinion concludes Hoagland’s pleading—that each appellee made written 

and oral misrepresentations of material fact to Hoagland in Harris County—is a 

sufficient pleading of jurisdictional facts,

1

yet it rejects as conclusory the Butchers’

statements that they did not make any representations to Hoagland in Texas 

regarding the business transaction made the basis of the captioned case.

Hoagland’s pleading contains the following jurisdictional allegations2:

Each of the Defendants made written and oral misrepresentations of

material fact to the Plaintiff (while Plaintiff was physically located in 

Harris County, Texas) via email and telephone conversations and inperson meetings during calendar years 2009 and 2010, with the 

intention that Plaintiff would rely upon such misrepresentations and 

take action or refrain from taking certain actions within Harris 

County, Texas. Furthermore, Defendants Bill Butcher and Kari

Butcher made trips to Houston, Texas, as part of their effort to 

mislead Plaintiff, and attended meetings with Plaintiff during which 

fraudulent misrepresentations were made by each of the Defendants to 

the Plaintiff. 

The plurality opinion recites other statements from Hoagland’s pleading,

3

but these 

 

1 Unlike Hoagland, appellees argued at the trial court and in their brief on appeal that 

Hoagland’s jurisdictional allegations are conclusory.

2 Hoagland made other jurisdictional allegations that the plurality correctly has 

discounted in its opinion.

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The plurality opinion also contends that these are jurisdictional facts: “Hoagland also 

alleged that appellees each (1) ‘misrepresented their abilities and financial condition such that it 

was believed they would bring enormous skill, expertise, and personal and donated monies to the 

[FairTax Campaign] effort’ and (2) fraudulently induced Hoagland into signing the Operating 

Agreement. Hoagland further alleged that Bill convinced Hoagland to take a $3,000 monthly fee 

in lieu of the fee to which he was entitled under the Operating Agreement based on Bill’s 
3

were not listed as jurisdictional facts, nor does the pleading state that these 

representations were made at the “in-person” meetings in Houston. Hoagland did 

not even allege that the phone calls to Hoagland were made while he was in 

Houston.4In short, the jurisdictional allegations are generic, and the generic 

rebuttal by the Butchers should be sufficient to negate the allegations and require 

Hoagland to prove his jurisdictional facts.

The Butchers’ affidavits acknowledged that they traveled to Texas on 

business related to AFFT, but denied that the Texas visits related to any personal 

transaction with Hoagland. Bill Butcher stated the following:

I am a resident of California. At no material time have I been a 

resident of Texas. I do not maintain a place of business in Texas. I 

have traveled to Texas on business related to Americans For Fair 

Taxation (AFFT), an organization which is not a party to this lawsuit.

Over the period of approximately one year I made several trips to 

Texas in my capacity as President and CEO of Corporate Partner in 

Butcher and Butcher, a California General Partnership of 

Corporations. Butcher and Butcher does not maintain a place of 

business in Texas. Butcher and Butcher does not otherwise transact 

business in Texas. Butcher and Butcher never made any

representations to Plaintiff, in Texas, regarding the business 

transaction made the basis of the captioned case. Butcher and Butcher 

did not enter into any contracts with Plaintiff regarding the 

transactions made the basis of the captioned case in Texas. It never 

made any payments to Plaintiff in Texas regarding the transaction

made the basis of the captioned case. It never engaged in any 

business activities with Plaintiff, in Texas, regarding the transactions 

made the basis of Plaintiff’s case.

Kari Butcher made the following statements:

 

representation that Hoagland would financially benefit more from taking the monthly fee than 

from taking the fee outlined in the Operating Agreement.” Plurality Opinion at 7–8.

4

In the age of cell phones, a phone call can be placed anywhere and answered anywhere.
4

I am a resident of California. At the present time, I am temporarily in 

the State of New York, but I have not yet become a resident of New 

York, although I intend to change my residence to New York in 2011. 

At no material time have I been a resident of Texas. I do not maintain 

a place of business in Texas. I have traveled to Texas on business 

related to Americans for Fair Taxation (AFFT), an organization which 

is not a party to this lawsuit. Over the period of approximately one 

year I made several trips to Texas in my capacity as President and 

CEO of Corporate Partner in Butcher and Butcher, a California 

General Partnership of Corporations. I do not otherwise transact 

business in Texas. I am familiar with the business transactions

regarding OCTV Partners, LLC, that are the basis of Plaintiff's cause 

of action. I have never travelled to Texas to confer with Plaintiff with 

respect to OCTV Partners, LLC. I have never made any 

representations to Plaintiff, in Texas, regarding the business 

transaction made the basis of the captioned case. I did not sign any 

contracts with Plaintiff regarding the transactions made the basis of 

the captioned case in Texas. I have never made any payments to 

Plaintiff in Texas regarding the transaction made the basis of the 

captioned case. I have never engaged in any business activities with 

Plaintiff, in Texas, regarding the transactions made the basis of 

Plaintiff's case.

I disagree with the plurality that these affidavits are conclusory. Both 

affidavits acknowledged the visits to Texas, but contended that the Texas visits 

were related to AFFT business and not to the personal complaints that Hoagland is 

making. I would hold that the Butchers’ affidavits shifted the burden to Hoagland 

to prove his jurisdictional facts. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 

653, 658 (Tex. 2010).

Third, I disagree with the plurality’s analysis of the OCTV affidavit. The 

plurality also concludes that OCTV failed to rebut Hoagland’s allegations because 

Marc Kassoff’s affidavit stated that he was not a manager or officer of OCTV 

when Hoagland entered into the contract with OCTV—an allegation that Kassoff 

lacked personal knowledge. This is a defect in the form of the affidavit. Hoagland 
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should have objected to the affidavit in the trial court. Because he did not, 

Hoagland waived this issue on appeal. Grupo TMM, S.A.B. v. Perez, 327 S.W.3d 

357, 361 (Tex. App.—Houston [14th Dist.] 2010, pet. denied]; McMahan v. 

Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. 

denied) (explaining that objections to form, such as hearsay, speculation, 

competence, are waived by a failure to object). Of course, as noted above, 

Hoagland did not raise this issue, either at the trial court or on appeal; only the 

plurality has. The plurality then holds that Kassoff did not provide the underlying 

facts to support his conclusions—but Kassoff did not make conclusions. He stated 

facts—“OCTV’s communications with Hoagland all took place in California or on 

the telephone.” This is sufficient to rebut Hoagland’s jurisdictional allegations.

The affidavits of the Butchers and of Kassoff are sufficient to shift the 

burden to Hoagland to prove his jurisdictional facts. We then should have 

reviewed all of the jurisdictional facts, and since the trial judge did not issue 

findings of fact, we should have presumed the trial court resolved all factual 

disputes in favor of its judgment. Am. Type Culture Collection, Inc. v. Coleman, 

83 S.W.3d 801, 806 (Tex. 2002); Meader v. IRA Res., Inc., 178 S.W.3d 338, 343

(Tex. App.—Houston [14th Dist.] 2005, no pet.). Because the plurality did not do 

so, I respectfully dissent.

/s/ Tracy Christopher

Justice

Panel consists of Justices Frost, Christopher, and Jamison. (Jamison, J., plurality)

(Frost, J., concurring).