NO. 03-15-00335-CV 

IN THE THIRD COURT OF APPEALS 

AUSTIN, TEXAS HERBERT ROLNICK, 

Appellant 

 

v. 

 

SIGHT’S MY LINE, INC. A FLORIDA CORPORATION; STEWART LANTZ; RIGGS, 

ALESHIRE & RAY; BLAZIER, CHRISTENSEN, BIGELOW & VIRR; AND ADAMS & 

GRAHAM, 

 Respondent

 

 

Interlocutory Appeal from the 200th Judicial District Court

in Travis County, Texas, The Honorable Tim Sulak, Presiding

 

 

APPELLANT’S REPLY BRIEF 

 

 Ruth G. Malinas 

 Texas Bar No. 08399350

 Tim T. Griesenbeck, Jr. 

 Texas Bar No. 08454450

 Scott M. Noel 

 Texas Bar No. 00797158

 Plunkett & Griesenbeck, Inc. 

 Catholic Life Building, Suite 900 

 1635 N.E. Loop 410 

 San Antonio, Texas 78209 

 (210) 734-7092 (telephone) 

 (210) 734-0379 (facsimile) 

rmalinas@pg-law.com 

 

ATTORNEYS FOR APPELLANT HERBERT ROLNICK

ACCEPTED

03-15-00335-CV

6898529

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/11/2015 11:56:18 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/11/2015 11:56:18 PM JEFFREY D. KYLE Clerk
i

TABLE OF CONTENTS 

Page 

 

PRELIMINARY STATEMENT.................................................................1

ARGUMENT AND AUTHORITIES .........................................................2

I. The Waiver Arguments Have No Merit...........................................2

A. Subsequent Controlling Authority Precludes 

Reliance on Casino Magic Corp. v. King or Other 

Cases Holding an Unsworn Special Appearance Is 

a General Appearance.............................................................2

B. Likewise, Adams’ Waiver Argument Is Meritless..................9

II. Appellees’ “Minimum Contacts” Analysis Is 

Fundamentally Flawed..................................................................10

A. Appellees Ignore Walden v. Fiore.........................................11

B. Only Contacts Rolnick Himself Created Count....................12

C. Only the Defendant’s Contacts with the Forum 

State Itself Count, Not the Defendant’s Contacts 

with Persons Who Reside There ...........................................16

D. Rolnick Did Not Purposefully Avail Himself of the 

Privilege of Conducting Activities in Texas that 

Invoked the Benefits and Protections of Texas 

Laws ......................................................................................19

E. Appellees Cannot Rely on Any Effects in Texas of 

Rolnick’s Florida Conduct or Where Rolnick 

Supposedly Directed a Tort...................................................21

III. Appellees Have No Answer for Rolnick’s Cases 

Involving Nonresident Attorneys and Law Firms.........................24

IV. SML’s “Agency” Theory Is Meritless..............................................25

 

 

 

 
ii

TABLE OF AUTHORITIES 

 

Page 

CASES

Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 

806 (Tex. 2002).....................................................................................11

Brocail v. Anderson, 

132 S.W.3d 552 (Tex. App.—Houston [14th Dist.] 2004, pet. 

denied)..................................................................................................24

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 

2174, 85 L. Ed.2d 528 (1985) .........................................................12, 17

Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804....21, 22

Casino Magic Corp. v. King, 43 S.W.3d 14, 18 (Tex. App.—

Dallas 2001, pet. denied)............................................................ 2, 3, 6, 8

Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998).......... passim

Exito Electronics Co., Ltd v. Trejo, 42 S.W.3d 302 (Tex. 2004) .......6, 7, 8

Guardian Royal Exch. Assur., Ltd. v. English Chinia Clays, 

P.L.C., 815 S.W2d 223, 226 (Tex. 1991) ..............................................11

Guyton v. Pronav Ship Mgmt., Inc., 139 F. Supp.2d 815, 818 

(S.D. Tex. 2001)....................................................................................11

Haddad v. ISI Automation Int’l, Inc., No. 04-09-00562-CV, 

2010 WL 1708275, at *2 (Tex. App.—San Antonio 2010, no 

pet.).........................................................................................................8

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

417, 104 S. Ct. 1868, 80 L. Ed.2d 404 (1984).......................................12

Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 

(Tex. App.—Austin 2004, pet. denied).............................................9, 10

J. McIntyre Mach., Ltd. v. Nicastro, ___ U.S. ___, 131 S. Ct. 

2780, 180 L. Ed.2d 765 (2011) .............................................................11

Jackson v. Dean, 

No. 14-23-01044-CV, 2015 WL 224964 (Tex. App.—Houston 

[14th Dist.] 

Jan. 15, 2015, no pet)...........................................................................14

Kroll Ontrack, Inc. v. Devon IT, Inc., No. CIV. 13-302 

DWF/TNL, 2014 WL 2922646, at *4 (D. Minn. June 27, 2014)..........13

Kytel Int’l Group, Inc. v. Rent-A-Center, Inc., 132 S.W.3d 717, 

719 (Tex. App.—Dallas 2004, no pet.) ...................................................6
iii

Moki Mac River Expeditions v. Drugg, 

221 S.W.3d 569 (Tex. 2007) ...........................................................19, 20

Prosperous Maritime Corp. v. Farwah, 189 S.W.3d 389, 392-93 

(Tex. App.—Beaumont 2006, no pet.)....................................................6

Retamco Operating, Inc. v. Republic Drilling Co., 

278 S.W.3d (Tex. 2009) .................................................................20, 21

Rowland & Roland, P.C. v. Texas Employers Indem. Co., 973 

S.W.2d 432 (Tex. App.—Austin 1998, no pet.) ............................2, 9, 25

Siemens AG v. Houston Cas. Co., 127 S.W.3d 436, 439 (Tex. 

App.—Dallas 2004, pet. dism’d).............................................................6

Villalpando v. De La Garza, 793 S.W.2d 274, 276 (Tex. App.—

Corpus Christi 1990, no writ) ................................................................3

Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115, 188 L. Ed.2d 12 

(2014)............................................................................................ passim

Washington DC Party Shuttle, LLC v. Iguide Tours,

406 S.W.3d 723 (Tex. App.—Houston [14th Dist.] 2013, pet. 

denied)....................................................................................................8

STATUTES

Tex. Civ. Prac. & Rem. Code § 17.042(1)................................................17

RULES

Tex. R. App. P. 33.1(a)(1) ..........................................................................9

Tex. R. App. P. 33.1(a)(2) ..........................................................................9

Tex. R. App. P. 38.1(f)..............................................................................10

Tex. R. App. P. 9.4(i)(1) ...........................................................................27

Tex. R. App. P.9.4(i)(2)(C) .......................................................................27

Tex. R. App. P.9.4(i)(3) ............................................................................27

Tex. R. Civ. P. 120a ....................................................................... 3, 4, 5, 8

Tex. R. Civ. P. 120a(3)...............................................................................7
1

PRELIMINARY STATEMENT 

The following appellees filed briefs: (1) plaintiffs Sight’s My Line, 

Inc. and Stewart Lantz (collectively “SML”); (2) defendant Riggs, Aleshire 

& Ray, Inc. (“Riggs”); and (3) defendant Adams & Graham, L.L.P. 

(“Adams”). Appellee/defendant Blazier, Christensen, Bigelow & Virr did 

not file a brief or, to appellant Rolnick’s knowledge, an answer to the 

Court’s August 5, 2015 notice of late brief.

The three separate appellees’ briefs are not identical, but share 

many arguments and flaws. Two of the briefs make meritless waiver 

arguments. All of the appellees’ briefs misstate facts and ignore 

uncontroverted evidence they do not like. Some supposed “facts” stated 

in the briefs have no record references and thus cannot be considered.

Tex. R. App. P. 38.1(g). As for the law, appellees rely on cases using 

reasoning and analytical frameworks that have been called into question 

by more recent authority appellant Rolnick cites. Appellees also distort 

or misconstrue cases they do cite. To the extent appellees acknowledge 

some of Rolnick’s authorities, appellees are unable to distinguish them. 

In sum, none of the appellees’ briefs calls into doubt the arguments 

Rolnick has made or provide applicable support for the trial court’s denial 

of Rolnick’s special appearance. 

 
2

ARGUMENT AND AUTHORITIES 

I. The Waiver Arguments Have No Merit 

Riggs and Adams claim waiver, but there is none. Riggs asserts that 

Rolnick’s special appearances were not sworn and thus the trial court’s 

denial of Rolnick’s special appearance cannot be error. Riggs Br. at 10-

11. The cases Riggs cites, however, demonstrate that its argument is 

waiver in disguise. Adams claims that Rolnick has waived any argument 

that Rowland & Roland, P.C. v. Texas Employers Indem. Co., 973 S.W.2d 

432 (Tex. App.—Austin 1998, no pet.) is not applicable and/or controlling. 

Adams Brief at 11.

A. Subsequent Controlling Authority Precludes Reliance on 

Casino Magic Corp. v. King or Other Cases Holding an 

Unsworn Special Appearance Is a General Appearance 

Riggs argues a trial court cannot err by denying an “unsworn” 

special appearance. When the cases Riggs cites are examined, however, 

the Court should conclude Riggs is really making a waiver argument in 

disguise. Those cases rely upon the now-discredited view that an 

unsworn special appearance is a general appearance, which waives any 

challenge to personal jurisdiction. At least two courts of appeals have 

disagreed with the arguments made in the Riggs Brief. Moreover, two 

Texas Supreme Court opinions preclude adopting Riggs’s position. 

The primary case upon which Riggs relies is Casino Magic Corp. v. 

King, 43 S.W.3d 148 (Tex. App.—Dallas 2001, pet. denied). In that case, 
3

the special appearance pleading did not include a verification, but an 

affidavit was attached to it. See id. The court of appeals held the affidavit 

did not “verify” the special appearance, because it did not state that the 

facts in the special appearance pleading were true and correct; rather, 

the affidavit stated the facts in the affidavit were true and correct. See 

id.

1 The court then held this defect made the special appearance 

“unsworn” and in violation of Rule 120a. 

The Casino Magic court did not cite any authority for its holding 

that a defective affidavit makes a special appearance “unsworn.” The 

court, however, did cite Villalpando v. De La Garza, 793 S.W.2d 274, 276 

(Tex. App.—Corpus Christi 1990, no writ) as support for the following 

holding: “Because the special appearance was not ‘sworn’ or ‘verified’ as 

required by Rule 120a, . . . the trial judge did not err in denying the 

special appearance.” Casino Magic, 43 S.W.3d at 18. 

The Villalpando opinion’s analysis rests on its holding that an 

unsworn special appearance is a general appearance. See 793 S.W.2d at 

276. The Villalpando court further held that, once a special appearance 

is overruled, a defendant consents to jurisdiction if he appears at trial 

through counsel. See id. In the twenty-five years since Villalpando was 

 

1 The opinion does not quote any part of the affidavit or the special appearance, but 

states that the special appearance included “a number of jurisdictional ‘facts’ which 

the witness failed to attest to in the affidavit.” Casino, 43 S.W.3d at 18. There is no 

way to tell what those unverified “jurisdictional facts” were.
4

decided, subsequent cases have made reliance on its holdings and 

reasoning misplaced. 

First, the Texas Supreme Court has held an unsworn special 

appearance is not a “general appearance” and thus does not waive the 

defendant’s challenge to personal jurisdiction. See Dawson-Austin v. 

Austin, 968 S.W.2d 319, 322 (Tex. 1998). In Dawson-Austin, the 

defendant’s first responsive pleading combined a special appearance, a 

motion to quash service of citation, a plea in abatement, a plea to the trial 

court’s jurisdiction, and an original answer subject to all of the above. See 

id. at 321. The defendant verified each part of the combined responsive 

pleading, except the special appearance, an omission she claimed was a 

typographical error. See id. The trial court denied the special appearance, 

in part because it was unsworn. See id. The next day, the defendant filed 

a motion to reconsider and an amended special appearance, but the trial 

court denied the amended special appearance. See id. The court of 

appeals affirmed. 

The Texas Supreme Court reversed, relying on Rule120a’s express 

contemplation of amendments to “cure defects” and lack of any limitation 

on the type of defects that can be cured. See Dawson-Austin, 968 S.W.2d

at 322. The court further rejected the plaintiff’s “general appearance” 

arguments:
5

Austin's arguments are not only contradicted by 

both the language and silence of Rule 120a, they 

misperceive what constitutes a general 

appearance. One court has explained:

A party enters a general appearance 

whenever it invokes the judgment of 

the court on any question other than 

the court's jurisdiction; if a defendant's 

act recognizes that an action is 

properly pending or seeks affirmative 

action from the court, that is a general 

appearance.

[citation omitted] Another court has stated the 

same proposition in the negative:

“[A]lthough an act of defendant may 

have some relation to the cause, it does

not constitute a general appearance, if 

it in no way recognizes that the cause 

is properly pending or that the court 

has jurisdiction, and no affirmative 

action is sought from the court.”

[citations omitted]. These courts have accurately 

restated the principle underlying a general 

appearance. An unverified special appearance 

neither acknowledges the court's jurisdiction nor 

seeks affirmative action. While it cannot be used 

to disprove jurisdiction, it certainly does not 

concede it.

Id. (emphasis added). The court concluded a defendant does not make a 

general appearance by filing an unsworn special appearance. See id. 

None of the appellees’ briefs mention Dawson-Austin, despite its clear 
6

applicability. Instead, they rely on Casino Magic, which also ignores the 

Dawson-Austin opinion decided almost three years earlier.2

Six years later, the Texas Supreme Court decided Exito Electronics 

Co., Ltd v. Trejo, 42 S.W.3d 302 (Tex. 2004). In that case, the defendant 

filed a verified special appearance and attached a supporting affidavit. 

See id. at 304. The plaintiff did not object to the verification, which did 

not reveal how the affiant had obtained the requisite personal knowledge 

of the facts described in the special appearance. See id. The plaintiff also 

did not object to a defective jurat on the affidavit. See id. The trial court 

denied the special appearance. See id. The court of appeals affirmed, 

finding the defendant waived its special appearance by: (1) filing a Rule 

11 agreement before filing its special appearance and thus making a 

general appearance;3 (2) participating in a hearing on discovery matters 

before the trial court ruled on the special appearance, which also 

constituted a general appearance; and (3) not presenting evidence to 

support the special appearance, because the verification and affidavit 

were defective and inadmissible. See id.

 

2 Riggs also relies upon three cases following Casino Magic: Prosperous Maritime 

Corp. v. Farwah, 189 S.W.3d 389, 392-93 (Tex. App.—Beaumont 2006, no pet.), Kytel 

Int’l Group, Inc. v. Rent-A-Center, Inc., 132 S.W.3d 717, 719 (Tex. App.—Dallas 2004, 

no pet.); and Siemens AG v. Houston Cas. Co., 127 S.W.3d 436, 439 (Tex. App.—

Dallas 2004, pet. dism’d). Kytel and Siemen’s AG do not mention Dawson-Austin. The 

remaining case cites Dawson-Austin, but then refuses to follow it. Prosperous, 189 

S.W.3d at 393. 

3 The Rule 11 agreement in Exito extended the defendant’s time to file its first 

responsive pleading. See id. at 304.
7

The Texas Supreme Court disagreed with the entirety of the court 

of appeals’ waiver analysis. The court noted the plaintiff’s failure to object

to the affidavit and verification in the trial court. See id. at 307. Relying 

on Rule 120a(3),

4 the court explained: 

Assuming without deciding that the verification 

and affidavit are defective, we nevertheless 

disagree with the court of appeals' conclusion. We 

held in Dawson–Austin that an unverified special

appearance does not concede jurisdiction. [footnote 

omitted] In addition, there was more in the record

for the trial court's consideration at the time of the 

special appearance hearing than the verification 

and affidavit, including the pleadings and the 

deposition of Exito's corporate representative. If 

Exito did not provide sufficient evidence in support 

of its jurisdictional challenge, about which we 

express no opinion, the trial court should have 

denied the motion, which it did. That does not, 

however, absolve the court of appeals from 

reviewing the merits of Exito's appeal of that 

ruling. Any defect in proof goes to the merits; it is 

simply not a waiver issue. The court of appeals 

therefore erred in holding that a defective 

verification and affidavit resulted in a waiver of 

Exito's special appearance.

Id. at 307-08.5 Riggs’ failure to acknowledge Dawson-Austin or Exito is 

troublesome, since those cases taken together preclude any reliance on 

 

4 Rule 120a(3) states in pertinent part: “The court shall determine the special 

appearance on the basis of the pleadings, any stipulations made by and between the 

parties, such affidavits and attachments as may be filed by the parties, the results of 

discovery processes, and any oral testimony.”

5 Relying on Dawson-Austin, the supreme court held the Rule 11 agreement was not 

a general appearance, as it did not ask the trial court to take any action. See id. at 

306. Participation in the discovery hearing did not effect a waiver either, because the 

discovery was related to the special appearance and participation was not 

inconsistent with the jurisdictional challenge. See id. at 306-307. 
8

Casino Magic, the cases upon which Casino Magic relies, or any cases 

relying upon Casino Magic. 

In the instant case, none of the appellees objected in the trial court 

to the lack of verification on the special appearances. CR:261-282, 659-

670.. That is not surprising, since Rolnick’s affidavit verified all of the 

factual statements in the special appearances. See Washington DC Party 

Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 730-31 (Tex. App.—

Houston [14th Dist.] 2013, pet. denied) (when attached affidavit verifies 

facts contained in special appearance but not special appearance itself, 

Rule 120a satisfied even though no verification on special appearance); 

Haddad v. ISI Automation Int’l, Inc., No. 04-09-00562-CV, 2010 WL 

1708275, at *2 (Tex. App.—San Antonio 2010, no pet.). (rejecting 

plaintiff’s argument based on Casino Magic, because affiant repeated and 

testified to facts stated in special appearance). 

Even though Riggs is an appellee, its failure to object to the lack of 

verification on the special appearance waived the complaint. See 

Haddad, 2010 WL 1708275, at *2, (holding appellee waived complaint, 

reasoning “[i]t is axiomatic that any complaint that a special appearance 

is not verified must be brought to the trial court’s attention to give the 

moving party an opportunity to cure the defect.”). Moreover, at the 

special appearance hearing in the instant case, the trial court, like the 

trial court in Exito, had before it numerous documents and the entire 
9

depositions of three witnesses. Under the holdings and reasoning in 

Dawson-Austin and Exito, Riggs’s waiver arguments must be rejected.

B. Likewise, Adams’ Waiver Argument Is Meritless 

Adams claims that Rolnick has waived “any argument over the 

application of Rowland to this case” and asserted the Court “should not 

permit [Rolnick] to challenge Rowland’s application in any reply brief.” 

Adams’s argument demonstrates a fundamental misunderstanding of 

appellate preservation of error and waiver. 

Texas Rule of Appellate Procedure 33 governs preservation of 

appellate complaints. An appellant must have presented its complaint to 

the trial court by making “a timely request, objection, or motion” that 

states the grounds for the ruling the appellant is seeking from the trial 

court. See Tex. R. App. P. 33.1(a)(1). In addition, the appellant must have 

obtained an explicit or implied ruling from the trial court on his request, 

objection, or motion. See id. 33.1(a)(2). The type of error that must be 

preserved is trial court error, not an alleged error by the opposing party 

in citing inapplicable or distinguishable cases. 

The only case Adams cites for its waiver argument is Howell v. Tex. 

Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex. App.—Austin 2004, 

pet. denied), which does not support it. The issue in Howell was whether 

the appellant had waived challenges to the trial court’s findings of fact 

concerning whether a jury demand had been made solely to delay the 
10

trial and violated a local rule. See id. The appellant did not challenge the 

findings of fact until its reply brief. See id. The appellant’s complaint was 

directed to the trial court’s ruling striking its jury demand and claimed 

trial court error. The case does not mention a need to preserve arguments

about its opposing party’s reliance upon specific cases. Howell thus 

cannot support the proposition for which it is cited. 

In any event, while an appellant generally cannot add new issues 

in his reply brief, the appellate rules and the cases construing them do 

not preclude the appellant from responding to and arguing against cases 

relied upon by the appellees. Adopting Adams’ view of error preservation 

would require a complaining party to object to each case his opponent 

cites or relies upon in the trial court and obtain a ruling on each of those 

objections. Moreover, the objections would have to be repeated in that 

party’s opening brief. It is thus not surprising that Adams cites no 

applicable support for its argument. 

In this case, Rolnick claims error with regard to the trial court’s 

ruling denying his special appearance. Under Texas Rule of Appellate 

Procedure 38.1(f), that issue covers “every subsidiary question that is 

fairly included.” The Court should reject this waiver argument.

II. Appellees’ “Minimum Contacts” Analysis Is Fundamentally Flawed 

As all appellees acknowledge, the Texas Long-Arm Statute “reaches 

‘as far as the federal constitutional requirements of due process will 
11

allow.’” Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 

(Tex. 2002) (quoting Guardian Royal Exch. Assur., Ltd. v. English Chinia 

Clays, P.L.C., 815 S.W2d 223, 226 (Tex. 1991). As a result, “the 

jurisdictional inquiry under the Texas long-arm statute collapses into a 

single due-process inquiry.” Guyton v. Pronav Ship Mgmt., Inc., 139 F. 

Supp.2d 815, 818 (S.D. Tex. 2001). The Texas Supreme Court has told 

appellate courts (and litigants) to rely on United States Supreme Court 

precedent and other federal cases as well Texas cases. Am. Type Culture, 

83 S.W.3d at 806. 

A. Appellees Ignore Walden v. Fiore

Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115, 188 L. Ed.2d 12 

(2014) is the United States Supreme Court’s most recent specific 

jurisdiction case. In fact, Walden is one of only two6 specific jurisdiction 

cases decided by the Court since 1990. Walden is significant, because it 

expounds on which contacts are jurisdictionally significant and restricts 

the “effects test” to intentional torts and intentional conduct. Riggs and 

SML do not even cite Walden. Adams cites the case once (Adams Brief at 

10-11) for its holding that “a defendant’s contacts with the forum State 

may be intertwined with his transactions or interactions with the 

plaintiff or other parties.” Walden, 134 S. Ct. at 1123. 

 

6 The other specific jurisdiction case is J. McIntyre Mach., Ltd. v. Nicastro, ___ U.S. 

___, 131 S. Ct. 2780, 180 L. Ed.2d 765 (2011), which is a stream-of-commerce case.
12

Appellant Rolnick discusses Walden extensively in his opening 

brief at pages 13-14, which makes appellees’ silence telling indeed.

Walden reaffirms that the minimum contacts inquiry “focuses on ‘the 

relationship among the defendant, the forum, and the litigation’” (id. at 

1121) and then explains rules governing that analysis. As explained 

below, the appellees’ arguments violate these rules.

B. Only Contacts Rolnick Himself Created Count 

Walden reaffirms that the defendant-forum-litigation relationship 

“must arise out of contacts that the ‘defendant himself’ creates with the 

forum State.” Id. at 1122 (quoting Burger King Corp. v. Rudzewicz, 471 

U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed.2d 528 (1985)) (emphasis in 

original). Thus, the contacts plaintiffs or third parties have with the 

forum State are not relevant. See Walden, 134 S. Ct. at 1122. In other 

words, another party’s or a third party’s unilateral activity in the forum 

cannot be considered. See Helicopteros Nacionales de Colombia, S.A. v. 

Hall, 466 U.S. 417, 104 S. Ct. 1868, 80 L. Ed.2d 404 (1984).

The reason for this rule is sound and explained by the unanimous 

Walden Court as follows: “Due process limits on the State’s adjudicative 

authority principally protect the liberty of the non-resident defendant—

not the convenience of the plaintiffs or third parties.” Walden, 134 S. Ct. 

at 1122. A plaintiff’s contacts with Texas, no matter how significant, 

cannot determine whether a Texas court violates a non-resident 
13

defendant’s due process rights by exercising personal jurisdiction over 

him. 

A corollary to the rule is that the forum contacts of an agent or 

employee acting solely for his principal’s or employer’s benefit do not 

count as contacts of the agent individually. See Kroll Ontrack, Inc. v. 

Devon IT, Inc., No. CIV. 13-302 DWF/TNL, 2014 WL 2922646, at *4 (D. 

Minn. June 27, 2014) (Pennsylvania lawyers’ contacts with Minnesota 

made at a client’s behest and for client’s benefit are made “in a purely 

representative capacity.”). Thus, only contacts Rolnick had with Texas in 

his individual capacity can be considered. And that is the biggest flaw in 

Appellees’ arguments. Everything Rolnick did with regard to the 

transaction he did in the course of representing SML and/or Lantz.

Rolnick has had no other contacts with Texas.

None of the contacts upon which appellees rely can be attributed to 

Rolnick, who was hired by Lantz (a Florida resident) in Florida to 

represent SML (a Florida corporation Lantz owned) in its sale of all its 

Texas assets to a Delaware corporation having its principal place of 

business in Nevada. CR:137, 139, 166, 382, 383, 502. All of the work 

Rolnick did in relation to the transaction took place in Florida. 

Appellant’s Brief at 18-20; CR:37, 160-161. Lantz admits that all of 

Rolnick’s contacts with Ray (a Texas lawyer) were as SML’s lawyer for 

SML’s and/or Lantz’s benefit. CR:386-387. Contacts of an agent on behalf 
14

of his principal cannot be considered when deciding if there is jurisdiction 

over the agent individually. See Jackson v. Dean, No. 14-23-01044-CV, 

2015 WL 224964 (Tex. App.—Houston [14th Dist.] Jan. 15, 2015, no pet). 

Stated another way, all of Rolnick’s contacts as SML’s lawyer are SML’s 

contacts, and cannot be used to subject Rolnick to the jurisdiction of a 

Texas court.

Appellees contend that Rolnick’s role in the negotiation of the sale 

subjects him to jurisdiction in Texas, but they are wrong. There is no 

evidence that any of the negotiations took place in Texas. Appellees do 

not identify where Rolnick was when the conduct ascribed to him 

occurred, since doing so would defeat their position. The buyer’s 

representatives were in Nevada when Rolnick spoke with them about the 

sale. CR:515. The buyer7 provided the first draft of the Asset Purchase 

Agreement to Rolnick in Florida. CR:504. 

Appellees also rely heavily on the fact that the assets being sold 

were in Texas. SML owned the assets and made the decision to sell them. 

There is no evidence that Rolnick had any right to all or part of the sales 

proceeds. 

 

7 Appellees either refer to the buyer as a “Texas buyer” or imply the buyer is from 

Texas, but there is no evidence to support this position. The buyer and obligor under 

the Promissory Note was AOS, a Delaware corporation with its principal place of 

business in Nevada. CR:444, 575. The fact that AOS was purchasing assets in Texas 

does not make it a “Texas buyer.” The record references given for this contention do 

not support it.
15

The presence of SML assets in Texas is a contact of SML and/or 

Lantz, SML’s sole owner. This contact is irrelevant with respect to 

personal jurisdiction over Rolnick. Walden, 134 S. Ct. at 1122 (“We have 

consistently rejected attempts to satisfy the defendant-focused ‘minimum 

contacts’ inquiry by demonstrating contacts between the plaintiff (or 

third parties) and the forum State). 

Just as irrelevant is Rolnick’s knowledge that the assets were in 

Texas or that SML had strong contacts with Texas. The Court in Walden

rejected this argument:

Rather than assessing petitioner's own contacts 

with Nevada, the Court of Appeals looked to 

petitioner's knowledge of respondents' “strong 

forum connections.” [citation omitted] In the 

court's view, that knowledge, combined with its 

conclusion that respondents suffered foreseeable 

harm in Nevada, satisfied the “minimum contacts” 

inquiry. [footnote and citation omitted]

This approach to the “minimum contacts” analysis

impermissibly allows a plaintiff's contacts with the 

defendant and forum to drive the jurisdictional 

analysis. Petitioner's actions in Georgia did not 

create sufficient contacts with Nevada simply 

because he allegedly directed his conduct at 

plaintiffs whom he knew had Nevada connections.

Such reasoning improperly attributes a plaintiff's 

forum connections to the defendant and makes 

those connections “decisive” in the jurisdictional 

analysis. [citation omitted] It also obscures the 

reality that none of petitioner's challenged conduct 

had anything to do with Nevada itself.
16

134 S. Ct. at 1124-1125. Rolnick did not own any part of SML or its assets 

and did not himself have any assets in Texas. CR:35-36, 390-91. When 

SML required legal assistance regarding the Texas assets or any of SML’s 

activities in Texas, SML hired a Texas lawyer. CR:390. Appellees’ 

contention that Rolnick provided legal services to SML with respect to a 

Medicaid investigation or the lease of property in Texas is simply false. 

Lantz testified that he hired a Texas lawyer – Ray – to deal with the 

Medicaid investigation. CR:389. There is no evidence that the lawsuit at 

issue related to or arose from the Medicaid investigation. There is no 

evidence that Rolnick provided services in Texas with respect to the 

Medicaid investigation. 

C. Only the Defendant’s Contacts with the Forum State Itself 

Count, Not the Defendant’s Contacts with Persons Who 

Reside There 

Appellees rely heavily on communications between Ray and 

Rolnick, but again, Rolnick was not in Texas when those communications 

occurred. Rather, the communications consisted of emails and a few 

telephone calls between Ray, who was in Texas, and Rolnick, who was in 

Florida. Although SML claims Rolnick testified to “numerous” phone 

calls into Texas, the record references SML cites do not support that 

claim at all. SML Brief at 9-10. Ray’s billing records reflect only 5 

telephone calls with Rolnick. CR:322-330. With one exception, those 

records, however, do not reflect who initiated the conversations. CR:322-
17

330. That exception reflects a call from Ray to Rolnick. CR:330. 

Telephone calls from Ray to SML or Rolnick are not contacts of Rolnick 

with Texas. The same is true with respect to emails.

Here again, appellees’ analysis runs afoul of Walden, which 

unambiguously holds that it is the contacts between the defendant and 

the forum State that are the relevant ones, not contacts between the 

defendant and a plaintiff or co-defendant who are Texas residents. See 

Walden, 134 S. Ct. at 1123. Under Walden, the communications between 

Rolnick and Ray, even if they had been in Rolnick’s individual capacity, 

would not have subjected him to personal jurisdiction in Texas. When, as 

here, the plaintiff or a third-party plaintiff is the only link between the 

defendant and the forum, personal jurisdiction will not lie over the nonresident defendant. See id. at 1122-23.8

In order for contacts with Texas residents to be relevant to personal 

jurisdiction over the defendant, those contacts must reflect that the 

defendant purposefully reached out beyond his or her state and into 

another. See Walden, 134 S. Ct. at 1122. The Walden court gave two 

examples of such contacts with a forum State that would be sufficient for 

jurisdictional purposes. First, a defendant that enters into a contractual 

 

8 This concept is the reason for the long-standing rule that a Texas resident’s contract 

with an out-of-state party alone will not automatically establish sufficient minimum 

contacts in Texas. See Burger King, 471 U.S. at 478. That is true even though the 

Texas long-arm statute states that contracting with a Texas resident is “doing 

business” in Texas. See Tex. Civ. Prac. & Rem. Code § 17.042(1).
18

relationship envisioning “continuing and wide-reaching contacts” in 

Texas would have made contacts with Texas itself. See id. The second 

example given was a defendant’s circulation of magazines or other 

products to purposefully exploit a Texas market. See id. No such conduct 

occurred here. 

Rolnick has never sought clients in Texas. CR:36. Rolnick has never 

appeared in court in Texas. CR:35. Rolnick is not and has never been 

licensed to practice law in Texas. CR:35. Although Rolnick represented 

SML over a period of years, all conduct in connection with that 

representation occurred in Florida. CR:382, 503. Because SML is a 

Florida corporation and its owner Lantz is a Florida resident, the 

relationship among SML, Lantz, and Rolnick is and has always been 

centered in Florida. Ray addressed and sent his bills to Lantz and sent 

no bills to Rolnick. CR:556, 557. 

In sum, appellees’ alleged Texas contacts boil down to the following: 

(1) communications between Rolnick in Florida and Ray in Texas, (2) 

Rolnick’s knowledge that assets of SML, a Florida corporation, were 

located in Texas, (3) negotiations between Rolnick (while he was in 

Florida) and the buyer’s representative (who was in Nevada), and (4) 

Rolnick’s supposed “direction” to Ray (by correspondence sent from 

Florida) to file the UCC-1 in Texas. These contacts taken singly or 
19

together are not sufficient to allow a Texas court to exercise jurisdiction 

over Rolnick.

D. Rolnick Did Not Purposefully Avail Himself of the Privilege of 

Conducting Activities in Texas that Invoked the Benefits and 

Protections of Texas Laws 

Texas Supreme Court cases over the past ten years demonstrate 

that appellees’ purposeful availment arguments also fail. “Purposeful 

availment” generally requires more than a sale of one or more products 

or services in Texas. See Moki Mac River Expeditions v. Drugg, 221 

S.W.3d 569, 578 (Tex. 2007); Michiana Easy Livin’ Country, Inc. v. 

Holten, 168 S.W.3d 777, 785 (Tex. 2005). That “something more” must be 

purposeful, such as directing marketing efforts to Texas, operating a 

sales and distribution network in Texas, and having an office providing 

sales information and support. See id. at 787. Stated another way, 

“[p]urposeful availment requires that ‘a defendant must seek some 

benefit, advantage, or profit by availing itself of the jurisdiction.’” Moki 

Mac, 221 S.W.3d at 578. 

In Moki Mac, the defendant actively sought to serve the Texas 

market, established regular communication channels with its Texas 

customers, utilized some of those Texas customers as de facto group 

leaders “to plan, organize, and promote its trips” involving other Texas 

residents. See id. Although the court found ample conduct amounting to 
20

“purposeful availment,” it was not sufficiently related to the litigation to 

justify specific jurisdiction. See id. at 588.

The analysis in Retamco Operating, Inc. v. Republic Drilling Co., 

278 S.W.3d 333 (Tex. 2009) further explains what “purpose availment” 

really means. Retamco, a Texas corporation sued another Texas 

corporation and obtained a $16,000,000 interlocutory default judgment. 

Id. at 336. Retamco then added a fraudulent transfer claim against a 

California corporation after learning the defaulted defendant had

transferred 72% of certain assets to the California corporation. Id. The 

trial court denied the California defendant’s special appearance, but the 

court of appeals reversed. See id. at 337. The Texas Supreme Court 

reversed. See id. at 342.

The court based its reversal on a purposeful availment analysis, 

reasoning as follows:

Republic's contacts with Texas were purposeful, 

not random, fortuitous, or attenuated. Oil and gas 

interests are real property interests. [citations 

omitted]. Republic was aware that the oil and gas 

interests it received were located in Fayette, 

Dimmit, and Webb Counties, Texas. Thus, 

Republic purposefully took assignment of Texas 

real property. And while Republic may not have 

actually entered the state to purchase this real 

property, “[j]urisdiction ... may not be avoided 

merely because the defendant did not physically 

enter the forum state.” [citation omitted] Republic, 

by taking assignment of Texas real property, 

reached out and created a continuing relationship 

in Texas. Under the assignment, it is liable for 
21

obligations and expenses related to the interests. 

This ownership also allows Republic to “enjoy ... 

the benefits and protection of [Texas laws.]” 

[citation omitted]. Unlike personal property, 

Republic's real property will always be in Texas, 

which leaves no doubt of the continuing 

relationship that this ownership creates. 

Id. at 339 (emphasis added). There is no evidence that Rolnick created or 

even sought such a continuing relationship with Texas. There is no 

evidence that the flat fee Rolnick received from SML for all the work done 

on the transaction was a benefit or protection of Texas law. Indeed, the 

evidence instead conclusively demonstrated that Rolnick’s only contacts 

with Texas were with another lawyer chosen by SML to advise on Texas 

law. The analysis in Retamco defeats appellees’ assertions of purposeful 

availment.

E. Appellees Cannot Rely on Any Effects in Texas of Rolnick’s 

Florida Conduct or Where Rolnick Supposedly Directed a Tort 

Appellees also contend that the effects of Rolnick’s alleged legal 

malpractice were felt in Texas, because the assets were lost there. That 

argument has a number of flaws. First, Walden rejects the “effects” 

analysis some lower courts had adopted based on Calder v. Jones, 465 

U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). Calder was a libel suit 

brought by a California actress in a California state court against a 

reporter and editor employed by the National Enquirer in Florida. The 

article at issue had been written and edited by the defendants in Florida. 

See Walden, 134 U.S. at 1123. The crux of Calder was not that the 
22

reputation-based effects of the libelous publication were felt by the 

plaintiff in California. Walden, 134 U.S. at 1123-1124. Instead, the 

Walden Court “recognized that the defendant’s activities” had focused on 

the plaintiff, but explained that the Court’s jurisdictional analysis 

focused on more than that. See id at 1123. The contacts the Calder court 

had relied upon included phone calls by the reporters to California 

sources for the information in the article, the focus of the article on the 

plaintiff’s activities in California, the wide circulation of the publication 

in California, and the fact that the “brunt” of the reputational injury was 

suffered by the plaintiff there. See id.

The Walden court then explained: 

The crux of Calder was that the reputation-based 

“effects” of the alleged libel connected the 

defendants to California, not just to the plaintiff. 

The strength of that connection was largely a 

function of the nature of the libel tort. However 

scandalous the newspaper article might be, it can 

lead to a loss of reputation only if communicated 

to (and read and understood by) third persons. 

[citation omitted.] Accordingly, the reputational 

injury caused by the defendants’ story would not 

have occurred but for the fact that the defendants 

wrote an article for publication in California that 

was read by a large number of California citizens. 

Indeed, because publication to third persons is a 

necessary element of libel, [citation omitted], the 

defendants’ intentional tort actually occurred in

California. [citation omitted.] In this way, the 

“effects” caused by the defendants’ article - i.e., the 

injury to the plaintiff’s reputation in the 

estimation of the California public - connected the 
23

defendants’ conduct to California, not just to the 

plaintiff who lived there. That connection, 

combined with the various facts that gave the 

article a California focus, suffice to authorize the 

California court’s exercise of jurisdiction. 

Walden, 134 U.S. at 1124 (emphasis in original). The Walden court then 

emphatically rejected the argument that personal jurisdiction over a nonresident can rest on mere injury to a foreign resident. See id at 1125. 

“The proper question is not where the plaintiff experienced a 

particular injury or effect but whether the defendant’s conduct connects 

him to the forum in a meaningful way.” It is the existence of a meaningful 

connection between Rolnick and Texas that is missing in this case.

Prior to Walden, the Texas Supreme Court also had rejected the 

notion that committing a tort “in” Texas or a tortfeasor’s knowledge that 

the injury will be felt by a particular Texas resident was enough to 

sustain personal jurisdiction over a non-resident. See Michiana, 168 

S.W.3d. at 788-89. Despite appellees’ contentions to the contrary, there 

is no evidence that Rolnick “committed a tort in Texas.” 

Appellees rely on Rolnick’s out-of-state conduct in Florida in 

claiming that he committed legal malpractice in Texas. This is nothing

more that the “direct-a-tort” theory Michiana also rejected. If jurisdiction 

turns on where a defendant directed a tort, the focus shifts to the 

relationship among the plaintiff (rather than the defendant), the forum 

and the litigation. See id. at 790. Moreover, “directed-a-tort jurisdiction 
24

[equates] the jurisdictional inquiry with the underlying merits.” Id. 

Taken to its logical end, a defendant would defeat personal jurisdiction 

by establishing it had not committed a tort. See id. at 790-791. 

In any event, there is no evidence that any of Rolnick work on the 

transaction in question took place in Texas.

III. Appellees Have No Answer for Rolnick’s Cases Involving 

Nonresident Attorneys and Law Firms 

In his Appellant’s Brief at 16-17, Rolnick has cited numerous Texas 

cases applying the rule that there is no specific jurisdiction over a 

nonresident attorney or law firm who exercises legal judgment, forms 

legal opinions, and does legal work for the client in states other than 

Texas. The same analysis applies to nonresident physicians who send 

prescriptions from another state to Texas and/or direct a Texas resident’s 

care. See Brocail v. Anderson, 132 S.W.3d 552, 555-556 (Tex. App.—

Houston [14th Dist.] 2004, pet. denied). The Texas Supreme Court in 

Moki Mac, 221 S.W.3d at 588, expressly approved Brocail’s holding that 

there was no jurisdiction over the nonresident physician, because “any 

tort occurred in the exercise of medical judgment” in another state, rather 

than communicating that judgment to Texas. See id. Although Rolnick 

cited and discussed Brocail in his brief at 17-18, appellees do not mention 

it. 
25

Appellees rely on inapplicable cases. For example, SML relies on 

Mountain States Employers Council, Inc. v. Cobb Mechanical 

Contractors, Inc., 2008 WL 2639711 (Tex. App.—Fort Worth July 3, 2008, 

no pet), in which the out-of-state attorney appeared at and represented 

his client during an NLRB hearing held in Texas. Rolnick did not provide 

any legal services in Texas.

The Tennessee law firm in Rowland v. Rowland, 973 S.W.2d 432 

(Tex. App.—Austin 1998, no pet.) was subject to personal jurisdiction in 

Texas because it paid the proceeds of a Tennessee wrong death suit to its 

Texas clients without protecting a Texas insurer’s lien. Here again, 

Rolnick had no similar contact with Texas. 

IV. SML’s “Agency” Theory Is Meritless 

SML claims that jurisdiction over Rolnick can be based on an 

agency theory under which Rolnick is the principal and Ray and BCBV 

are the agents. None of the cases SML cites are even remotely applicable. 

While Rolnick agrees with the rule that an agent’s Texas contacts are 

attributed to his principal, there is no evidence of an agency relationship 

between Ray and BCBV as the purported agents and Rolnick as the 

principal. Ray and Rolnick were lawyers representing the same clients—

SML and Lantz. As explained earlier in this brief, Ray sent his bills to 

SML, not Rolnick. Although Rolnick advised Lantz to hire Texas counsel 

to ensure SML’s rights were protected under Texas law, Lantz admitted 
26

he chose Ray based on previous work Ray had done for SML. CR:384-385. 

Lantz also testified that he contacted Ray asked him to serve as Texas 

counsel in the matter. CR:384. Upon checking the record references in 

the agency portion of SML’s brief, the Court should find they do not 

support the factual assertions made. 

For all of the above reasons, the Court should reverse the trial 

court’s denial of Rolnick’s special appearance and render judgment 

dismissing the claims against him for lack of subject matter jurisdiction.

Respectfully submitted,

 

 RUTH G. MALINAS 

Texas Bar No. 08399350

 Plunkett & Griesenbeck, Inc. 

Catholic Life Building, Suite 900

1635 N.E. Loop 410

San Antonio, Texas 78209 

 (210) 734-7092 (telephone)

(210) 734-0379 (facsimile)

rmalinas@pg-law.com

 /s/ Ruth G. Malinas 

RUTH G. MALINAS 

 

 COUNSEL FOR APPELLANT 

 HERBERT ROLNICK 

 

 

 

 
27

CERTIFICATE OF COMPLIANCE 

Pursuant to Texas Rule of Appellate Procedure 9.4, the 

undersigned certifies this Appellant’s Reply Brief complies with the typevolume limitations of the Rule. The undersigned prepared the Reply Brief

using Microsoft Word 2013 and relied on that software’s word-count 

function. 

Exclusive of the exempted portions listed in Texas Rule of Appellate 

Procedure 9.4, the brief contains 6122 words. 

 /s/ Ruth G. Malinas 

RUTH G. MALINAS

 

CERTIFICATE OF SERVICE 

This will certify that a true and correct copy of the foregoing 

Appellant’s Reply Brief has been forwarded this 11th day of September, 

2015, to the following attorneys of record via electronic service:

J. Hampton Skelton

Brandon Duane Gleason

Skelton & Woody

248 Addie Roy Road, Suite B-302

Austin, TX 78746

hskelton@skeltonwoody.com 

bgleason@skeltonwoody.com 

Attorneys for Sight’s My Line, Inc., 

a Florida Corporation and 

Stewart Lantz
28

Scott R. Kidd

Scott V. Kidd

Kidd Law Firm

819 W. 11th Street

Austin, TX 78701

scott@kiddlawaustin.com

svk@kiddlawaustin.com

Attorneys for Riggs, Aleshire & Ray 

Michael B. Johnson

Salvador Davila

Thompson, Coe, Cousins & Irons, LLP

701 Brazos, Suite 1500

Austin, TX 78701

mjohnson@thompsoncoe.com

sdavila@thompsoncoe.com

Attorneys for Blazier, Christensen, 

Bigelow & Virr

Robert E. Valdez

Jose “JJ” Trevino, Jr.

Valdez, Jackson & Trevino, PC

1826 North Loop 1604 West, Suite 275

San Antonio, TX 78248

revaldez@vjtlawfirm.com

jtrevino@vjtlawfirm.com

Attorneys for Adams & Graham

 /s/ Ruth G. Malinas 

RUTH G. MALINAS