No. 04-14-00827-CV 

 

IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

AT SAN ANTONIO, TEXAS

 

PT INTERMEDIATE HOLDING, INC. AND PERSONAL TOUCH HOLDING CORP., 

 Appellants, 

v. 

LMS CONSULTING LLC, 

 Appellee. 

 

On Appeal from the 45th Judicial District Court, Bexar County 

Honorable Peter Sakai of the 225th Judicial District Court, Presiding 

 

SURREPLY OF APPELLEE LMS CONSULTING LLC 

 

Taylor Dunham and Rodriguez LLP 

David E. Dunham 

State Bar No. 06227700 

ddunham@taylordunham.com 

Jennifer Tatum Lee 

State Bar No. 24046950 

jtatum@taylordunham.com 

Isabelle M. Antongiorgi 

State Bar No. 24059386 

ima@taylordunham.com 

301 Congress Avenue, Suite 1050 

Austin, TX 78701 

Telephone 512.473.2257 

Facsimile 512.478.4409 

Law Offices of Alejandro Mora PLLC 

Alejandro Mora 

alejandro@morahealthcarelaw.com

7000 North Mopac Expressway 

Suite 200 

Austin, Texas 78731 

Telephone 512.514.6683 

Facsimile 888.320.0589 (fax) 

Counsel for Appellee LMS Consulting LLC 

ORAL ARGUMENT REQUESTED

ACCEPTED

04-14-00827-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/10/2015 5:26:37 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/10/2015 5:26:37 PM KEITH E. HOTTLE Clerk
Surreply of Appellee LMS Consulting LLC Page (i) 

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... i

TABLE OF AUTHORITIES .................................................................................... ii

A. The Phrase “As Set Forth in Detail Above” Does Not Exclude Appellants 

from the Breach of Contract Allegations .............................................................. 2

B. Appellee Pled Jurisdiction Based on More than the Alter Ego Theory ............... 3

C. Appellee Made No Judicial Admissions Negating Jurisdiction over 

Appellants ............................................................................................................. 6

D. Appellants’ Arguments Fail because any Ambiguities Must Be 

Interpreted in Appellee’s Favor ............................................................................ 7

E. Specific Jurisdiction Exists Based on the Tortious Interference Claim ............... 8

PRAYER FOR RELIEF ............................................................................................ 9

CERTIFICATE OF SERVICE ................................................................................ 11
Surreply of Appellee LMS Consulting LLC Page (ii) 

TABLE OF AUTHORITIES

 Page(s) 

Cases 

Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) ................... 9 

Coleman v. Klöckner & Co., 180 S.W.3d 577 (Tex. App.—Houston 

[14th Dist.] 2005, no pet.) ................................................................................. 4, 5 

CSR Ltd. v. Link, 925 S.W.2d 591 (Tex.1996) .......................................................... 9 

Favour Leasing LLC v. Mulligan, Cause No. 05-13-01000-CV, WL 

4090130 (Tex. App.—Dallas, Aug. 19, 2014, no pet.) .................................... 4, 8 

Friesenhahn v. Ryan, 960 S.W.2d 656 (Tex. 1998) .................................................. 7 

Haskell v. Border City Bank, 649 S.W.2d 133 (Tex. App.—El Paso 

1983, no writ) ........................................................................................................ 7 

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) ...................... 6 

Huynh v. Nguyen, 180 S.W.3d 608 (Tex. App.—Houston [14th Dist.] 

2005, pet. denied) .............................................................................................. 3, 7 

Ji-Haw Indus. Co. Ltd. v. Broquet, No. 04-07-00622-CV,--S.W.3d--, 

2008 WL 441822 (Tex. App.—San Antonio, Feb. 20, 2008, no 

pet.) ............................................................................................................... 3, 5, 7 

Kelly v. Gen. Interior Const. Inc., 301 S.W.3d 653 (Tex. 2010) ........................... 5, 7 

Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154 (Tex. 

App.—Fort Worth, 2008) ..................................................................................... 9 

Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied) ............................................................... 7 

San Pedro Impulsora de Inmuebles Espciales SA de CV v. Villareal, 

330 S.W.3d 27, 39 (Tex. App.—Corpus Christi 2010, no pet.) ....................... 3, 7 
Surreply of Appellee LMS Consulting LLC Page (iii) 

Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135 (Tex. App.—

Dallas 2003, pet. denied) ...................................................................................... 6 

SITQ EU Inc. v. Reata Restaurants Inc., 111 S.W.3d 638 (Tex. 

App.—Fort Worth 2003, pet. denied) ................................................................... 9 

Stauffer v. Nicholson, 438 S.W.3d 205 (Tex. App.—Dallas 2014, no 

pet.) ....................................................................................................................... 3

Tex. Parks & Wildlife Dept. v Miranda, 133 S.W.3d 217 (Tex. 2004) ..................... 7 

Wright v. Sage Eng'g, Inc., 137 S.W.3d 238 (Tex. App.—Houston [1st 

Dist.] 2004, pet. denied) ........................................................................................ 3 

Rules 

Tex. R. Civ. P. 90 ....................................................................................................... 7 

Tex. R. Civ. P. 91 ....................................................................................................... 7 

Tex. R. Civ. P. 120a(3) .............................................................................................. 3 
Surreply of Appellee LMS Consulting LLC Page 1 

 In Appellants’ Reply Brief, PT Intermediate Holding Inc. and Personal 

Touch Holding Corp. do not point to any evidence to negate the trial court’s 

implied finding that they, acting under the name “Personal Touch Home Care 

Inc.,” contracted with Appellee for the recruitment of employees in Texas and 

tortiously interfered with contracts performable in Texas. Instead, by selectively 

citing (and selectively ignoring) excerpts of Appellee’s pleadings, they argue that 

Appellee failed to adequately plead and present these arguments to the trial court. 

 Appellants’ arguments fail for the following reasons: 

A. The phrase “as set forth in detail above” does not limit the scope of 

Appellee’s allegations that all Defendants—including Appellants—breached 

the recruitment and staffing contracts; 

B. Any defect in Appellee’s pleading was waived because Appellants failed to 

challenge the same by special exception before the trial court; 

C. Any ambiguity in the pleadings must be interpreted liberally in Appellee’s 

favor and any findings necessary to support the judgment inferred; 

D. Appellee more than satisfied its pleading burden by expressly alleging that 

Appellants did business in Texas and that Appellants, using the name 

“Personal Touch Home Care Inc.,” entered into and breached the parties’ 

recruitment contracts; 

E. Appellee’s allegations regarding the Texas entities’ contractual obligations, 

do not contradict the allegations that Appellants contracted with Appellee or 

that Appellants recruited employees in Texas; and 

F. Texas law supports the exercise of specific jurisdiction based on Appellants' 

intentional interference with contracts performable in Texas. 

 
Surreply of Appellee LMS Consulting LLC Page 2 

A. The Phrase “As Set Forth in Detail Above” Does Not Exclude 

Appellants from the Breach of Contract Allegations 

 In Plaintiff's Second Amended Petition, Appellee pleads breach of contract 

allegations against all Defendants, both before and after the “as set forth in detail 

above” phrase upon which Appellants rely. See CR 277 at ¶ 20, CR 279-80 ¶¶ 31, 

33, 35, 37. The definition of “Defendants”—which expressly includes 

Appellants—appears on page one of Plaintiff’s Second Amended Petition, CR 269, 

and is thus “set forth in detail above” the Appellee’s breach of contract claims, 

which read as follows: 

As set forth in detail above, Defendants entered into valid 

and enforceable Staffing Agreements with LMSC. . . . 

Defendants, however, breached their obligations to pay 

LMSC amounts due under the Staffing Agreements. . . .1

 

As set forth in detail above, Defendants entered into valid 

and enforceable Recruiting Agreements with LMSC. . . . 

 Defendants breached their obligations to pay LMSC 

amounts due under the Staffing Agreements. . . . . 

CR 279-80, ¶¶ 31, 33, 35, 37; see also CR 277 at ¶ 20 (”Defendants, however, 

have failed and refused to pay to LMSC amounts due and owing to LMSC under 

the Staffing Agreements.”). Therefore, Appellants’ attempt to defeat jurisdiction 

based upon the phrase “as set forth in detail above” is unavailing. 

 1

 The phrase “as set forth in detail above” does not appear in Paragraph 33 or 37 which 

allege that Appellants breach their obligations by refusing to pay amounts owed. 
Surreply of Appellee LMS Consulting LLC Page 3 

B. Appellee Pled Jurisdiction Based on More than the Alter Ego Theory 

 Appellants ignore Appellee’s statement in its Second Amended Petition 

asserting that “[t]he court has jurisdiction over [Appellants] also because both of 

these entities purposefully availed themselves of the privileges and benefits of 

conducting business in Texas.” CR 272 ¶ 11. This general allegation alone is 

sufficient to satisfy Appellee's minimal pleading burden. Ji-Haw Indus. Co. Ltd. v. 

Broquet, No. 04-07-00622-CV,--S.W.3d--, 2008 WL 441822, * 2 (Tex. App.—San 

Antonio, Feb. 20, 2008, no pet.) Stauffer v. Nicholson, 438 S.W.3d 205, 212 n. 5 

(Tex. App.—Dallas 2014, no pet.); (“The plaintiff is not required to detail all 

theories or basis of personal jurisdiction relied upon.”); Huynh v. Nguyen, 180 

S.W.3d 608, 619 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (same). 

 In addition to this jurisdictional allegation (CR 272 ¶ 11), and the express 

assertion that Appellants breached staffing and recruitment contracts with 

Appellees (CR 277 ¶ 20; CR 279-80 ¶¶ 31, 33, 35, 37), Appellee repeatedly 

asserted in its responses to the special appearances2

 that Appellants did business as 

“Personal Touch Home Care Inc.,” that Appellee contracted with “Personal Touch 

Home Care Inc.,” and that Appellants recruited employees in Texas. CR 180-81 

 2 see also Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 249 (Tex. App.—Houston [1st 

Dist.] 2004, pet. denied) (responsive pleadings considered in assessment of plaintiff's pleading 

burden); Tex. R. Civ. P. 120a(3) (“The court shall determine the special appearance on the basis 

of the pleadings, such stipulations made by the parties, any affidavits and attachments filed by 

the parties.”); San Pedro Impulsora de Inmuebles Espciales SA de CV v. Villareal, 330 S.W.3d 

27, 39 (Tex. App.—Corpus Christi 2010, no pet.) (hereinafter “Villareal”)(same). 
Surreply of Appellee LMS Consulting LLC Page 4 

¶¶ 1, 5; CR 233-239 (recruitment contracts); CR 248-256 (correspondence 

reflecting Appellants' recruitment of employees); CR 257-259 (employment 

application from Texas resident); CR 260-61 (employment offer to Texas 

resident); CR CR 328-330 ¶¶ 1, 6, 7; CR 49-50 ¶¶ 3, 5-6, 8-10, 14, 17, 18; CR 60-

65. 

Coleman v. Klöckner & Co., 180 S.W.3d 577 (Tex. App.—Houston [14th 

Dist.] 2005, no pet.), on which Appellants rely3

 is distinguishable in two respects. 

First, the Coleman plaintiff's burden was greater than that imposed on Appellee. 

Coleman involved a single-business-enterprise veil piercing theory, which is not 

assessed under the general burden shifting analysis applicable here. For veil 

piercing theories, the burden is always with the plaintiff. Appellee’s claims against 

Appellants are not limited to veil piercing claims, but rather include direct contract 

and tort claims, as well. See CR 269-88 ¶¶ 11, 20, 31, 33, 35, 37-42. Thus, 

Appellee needed only satisfy the minimal pleading burden to shift the burden to 

Appellants. 

 Secondly, where the plaintiff in Coleman failed to expressly plead veil 

piercing, Appellee expressly alleged that Appellants did business in Texas, CR 272 

¶ 11, directly breached the contracts calling for performance in Texas, CR 278-80, 

 3

Favour Leasing LLC v. Mulligan, Cause No. 05-13-01000-CV, WL 4090130 (Tex. 

App.—Dallas, Aug. 19, 2014, no pet.), on which Appellants also rely, is inapposite as there was 

no allegation of waiver of jurisdictional arguments. 
Surreply of Appellee LMS Consulting LLC Page 5 

¶¶ 20, 31, 33, 35, 37, and tortiously interfered with the contracts of Texas residents 

that called for performance in Texas, CR 280 ¶¶ 38-42. 

 Further, the record reflects that the court considered Appellants’ identity as 

the contracting party “Personal Touch Home Care Inc.” See 2 RR 45:2-46:15. In 

Coleman, the court expressly noted that “there [wa]s nothing in the record to 

suggest that the trial court either expressly or implicitly considered the relevant 

factors of the single business enterprise.” Coleman, 180 S.W.3d at 587. 

 Here the trial court considered all the evidence and properly interpreted 

Appellee’s pleadings and responses liberally in Appellee’s favor. See Ji-Haw 

Indus. Co. Ltd., 2008 WL 441822, at * 2 (Tex. App.—San Antonio, Feb. 20, 2008, 

no pet.) (citing Tex. Parks & Wildlife Dept. v Miranda, 133 S.W.3d 217, 226 (Tex. 

2004)). 

 The trial court’s implicit finding that Appellants acted as “Personal Touch 

Home Care Inc.” with respect to the contracts at issue in this case is more than 

adequately supported by the record. See Kelly v. Gen. Interior Const. Inc., 301 

S.W.3d 653, 657 (Tex. 2010) (“[A]ll facts necessary to support the judgment and 

supported by the evidence are implied.”). 
Surreply of Appellee LMS Consulting LLC Page 6 

C. Appellee Made No Judicial Admissions Negating Jurisdiction over 

Appellants 

 Appellants’ judicial admissions argument fails. “A judicial admission must 

be a clear, deliberate, and unequivocal statement,” and “occurs when an assertion 

of fact is conclusively established in live pleadings.” Horizon/CMS Healthcare 

Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). 

 Appellants fail to establish two necessary elements: (1) that the statements 

on which they rely were “deliberate, clear, and unequivocal;” and (2) that the 

statements are “not destructive of the opposing party’s theory of recovery.” 

Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.—Dallas 

2003, pet. denied) (listing 5 elements). 

 Appellee never alleged that it did not contract with Appellants and never 

stated that Appellants did not recruit employees in Texas pursuant to the contracts 

at issue. Just as the assertion that the American flag is red does not contradict the 

assertion that it is also blue, the allegation that Appellants’ subsidiaries entered into 

contracts with Appellants does not contradict and is not the “opposite” of the 

allegation that Appellants entered into those same contracts with Appellees. Cf. 

Reply at p. 5. Both Appellants and their Texas subsidiaries may be found to be 

parties (even breaching parties) to the recruitment and staffing contracts at issue, 

without any contradiction. In fact, this is precisely what Appellee’s pleadings 

allege and what the evidence in the record supports, CR 269-88 ¶¶ 20, 31, 33, 35, 
Surreply of Appellee LMS Consulting LLC Page 7 

37; CR 180-81 ¶¶ 1, 5; CR 233-239; CR 248-256; CR 257-259; CR 260-61; CR 

CR 328-330 ¶¶ 1, 6, 7; CR 49-50 ¶¶ 3, 5-6, 8-10, 14, 17, 18; CR 60-65. There are 

gaps and assumptions in Appellants’ reading of Appellee’s pleadings, which could 

have been addressed, if truly warranted, by way of special exception, but never 

were. 

D. Appellants’ Arguments Fail because any Ambiguities Must Be 

Interpreted in Appellee’s Favor 

 To the extent any ambiguity existed in Appellee’s pleadings, on appeal any 

such ambiguities must be construed in Appellee’s favor. Id.; see also Kelly, 301 

S.W.3d at 657. 

 “In determining jurisdictional pleas asserted by a defendant, [courts] take as 

true the pleadings and allegations of the plaintiff and review the pleadings and 

allegations in the light most favorable to the plaintiff.” Pulmosan Safety Equip. 

Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2008, pet. 

denied); see also Tex. Dep’t of Parks & Wildlife, 133 S.W.3d at 226; Villarreal, 

330 S.W.3d at 38; Ji-Haw Indus. Co., 2008 WL 441822, at *2; Huynh, 180 S.W.3d 

at 619. 

 Additionally, Appellants waived any alleged defect in Appellee's pleadings 

by failing to address it via special exceptions.4

 Tex. R. Civ. P. 90; Haskell v. 

 4

 Even if the trial court had sustained special exceptions, Appellee would undoubtedly be 

given an opportunity to amend to correct any alleged deficiency. Tex. R. Civ. P. 91; e.g. 

Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). 
Surreply of Appellee LMS Consulting LLC Page 8 

Border City Bank, 649 S.W.2d 133, 134 (Tex. App.—El Paso 1983, no writ) (on 

appeal of a special appearance, holding that any defect in the plaintiff's pleadings 

was waived by the defendants’ failure to challenge the same by special 

exceptions). 

E. Specific Jurisdiction Exists Based on the Tortious Interference Claim 

 Appellee adequately pled specific jurisdiction arising out of Appellants’ 

tortious interference with Appellee’s contracts with Texas residents; Appellants 

recruited these Texas residents and induced them to breach their contracts with 

Appellee. CR 272 at ¶ 11; CR 280 ¶¶ 38-42. Appellants presented no evidence in 

the trial court to negate these allegations. On this basis alone, the trial court’s 

denial of Appellants’ special appearance should be affirmed.5

 

 Appellants’ reliance on Favour Leasing LLC v. Mulligan, 2014 WL 

4090130, is misplaced. In Favour Leasing LLC, the plaintiff alleged that the 

appellants/defendants were recipients of fraudulent transfers occurring entirely 

outside of Texas. Id. at *9. Unlike Favour Leasing, this case involves intentional 

interference with the contracts entered into with Texas residents, where such 

contracts being performable in Texas. 

 Presuming for the sake of argument that Appellants’ recruitment of Texas 

residents was conducted through the computers and phones of their New York 

 5

 Appellee regrets the typographical error in Appellee LMS Consulting LLC's Brief. The 

trial court did not "dismiss" Appellants but rather denied their special appearance challenges. 

See Appellee's Br. p 1. 
Surreply of Appellee LMS Consulting LLC Page 9 

office, their tortious conduct purposefully directed at Texas would be sufficient to 

support specific jurisdiction. “It is not necessary that the nonresident defendant's 

conduct actually occur in Texas, as long as the defendant's acts were purposefully 

directed towards Texas.” Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 

154, 162-63 (Tex. App.—Fort Worth, 2008); see also Calder v. Jones, 465 U.S. 

783, 789–90, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984); CSR Ltd. v. Link, 925 

S.W.2d 591, 595 (Tex.1996); SITQ EU Inc. v. Reata Restaurants Inc., 111 S.W.3d 

638, 646 (Tex. App.—Fort Worth 2003, pet. denied). 

 PRAYER FOR RELIEF 

 Appellee LMS Consulting LLC respectfully asks this Court to affirm the 

trial court's orders denying Appellants PT Intermediate Holding Inc. and Personal 

Touch Holding Inc.'s special appearances and that the Court grant it such other and 

further relief to which it may be entitled. 

 
Surreply of Appellee LMS Consulting LLC Page 10 

Respectfully submitted, 

TAYLOR DUNHAM AND RODRIGUEZ LLP 

301 Congress Avenue, Suite 1050 

Austin, TX 78701 

512-473-2257 

512-478-4409 (fax) 

By: /S/Isabelle M. Antongiorgi

David E. Dunham 

State Bar No. 06227700 

ddunham@taylordunham.com 

Jennifer Tatum Lee 

State Bar No. 24046950 

jtatum@taylordunham.com 

Isabelle M. Antongiorgi 

State Bar No. 24059386 

ima@taylordunham.com 

Counsel for Appellee LMS Consulting LLC 
Surreply of Appellee LMS Consulting LLC Page 11 

CERTIFICATE OF SERVICE 

 On April 10, 2015, the undersigned certifies that she served a copy of this 

Brief of Appellees on the following by e-service, in compliance with Texas Rules 

of Appellate Procedure 9.5 and 25.1(e): 

Monte James 

mjames@jw.com 

Kimberly Gdula 

kgdula@jw.com 

Josh Romero 

jromero@jw.com 

Jackson Walker LLP 

100 Congress Avenue 

Suite 1100 

Austin, Texas 78701 

Counsel for Appellants 

/S/Isabelle M. Antongiorgi 

Isabelle M. Antongiorgi