NUMBER 13-21-00062-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

CAPITAL TITLE OF TEXAS, LLC, Appellant,

v.

MARK SHANK AND DOUGLAS SHANK, Appellees.

 

On appeal from the 398th District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Justice Benavides

In this interlocutory appeal from the granting of special appearances, appellant 

Capital Title of Texas, LLC (Capital Title) contends that the trial court has specific personal 

jurisdiction over appellees Mark and Douglas Shank. We reverse and remand.
2

I. BACKGROUND

Carolyn Shank and Robert Eugene Shank (Robert Sr.) married in 1977. Robert Sr. 

had four children from a previous marriage—David, Mark, Douglas, and Robert Jr. In 

2010, Carolyn and Robert Sr., residents of Kansas, purchased a second home in City of 

Alamo, Texas. Robert Sr. died in 2018, and although he left a will devising his interest in 

the property to Carolyn, she elected not to probate the will.

In 2019, Carolyn entered a contract to sell the property to two Texas residents. Per 

the contract, Carolyn furnished the sellers with a title policy issued by Capital Title, which 

also served as the escrow agent. Carolyn executed an affidavit of heirship identifying 

David, Mark, Douglas, and Robert Jr. as Robert Sr.’s only children. All four children are 

residents of other states. In the affidavit, Carolyn also represented that “there has been 

no administration of [Robert Sr.’s] estate nor is any administration expected or 

necessary.”

Under Texas intestacy laws, Robert Sr.’s undivided 50% interest in the property 

passed upon his death to his four children in equal shares of 12.5%. See TEX. EST. CODE 

ANN. § 201.003(c); see also id. § 256.001 (providing generally that “a will is not effective 

to prove title to, or the right to possession of, any property disposed of by the will until the 

will is admitted to probate”). Accordingly, Capital Title contacted the four brothers, 

informing them about the impending sale, their respective interests in the proceeds, and 

the need for them to execute the general warranty deed to effectuate the sale. Each 

brother executed the general warranty deed and returned it to Capital Title for recording.

The four brothers were also provided copies of the affidavit of heirship and Robert
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Sr.’s unprobated will. David and Robert Jr. instructed Capital Title to distribute their shares 

to Carolyn, meaning Carolyn would receive 75% of the sale proceeds and Douglas and 

Mark would each receive 12.5%. For reasons that are in dispute, Capital Title instead 

distributed 50% of the sale proceeds to Carolyn, while Douglas and Mark each received 

25%.

Capital Title subsequently informed Douglas and Mark that they had received their 

brothers’ shares in error and requested that they either return the shares to Capital Title 

or pay them directly to their brothers. After Douglas and Mark denied that request, 

Carolyn, David, and Robert Jr. sued Capital Title, alleging the company breached its 

fiduciary duty to them as the escrow agent and violated various provisions of the Texas 

Deceptive Trade Practices-Consumer Protection Act.

1

Capital Title filed a general denial and a third-party petition against Douglas and 

Mark for unjust enrichment, alleging that the trial court had specific personal jurisdiction 

over the brothers. Specifically, Capital Title alleged that the brothers “engaged in conduct 

in and/or directed toward Hidalgo County, Texas, having direct contact with business 

conducted in Hidalgo County and with persons doing business in Hidalgo County in 

connection with the real estate transaction at issue, and including receipt . . . of proceeds 

from the transaction.”

Mark, a resident of Kansas, and Douglas, a resident of Louisiana, filed a combined 

special appearance. In support of their special appearance, each brother filed an affidavit. 

In his affidavit, Mark stated:

1 Carolyn died during the pendency of the suit, and the executrix of her estate was substituted in 

her place.
4

My father passed away in April of 2018. In May of 2019, I received email

correspondence from [Capital Title] along with a Warranty Deed and 

Federal Express air bill requesting my signature and return of the Warranty 

Deed, and informing me that the property owned by my father in Alamo, 

Texas was being sold and I would be receiving a certain amount of money 

from the proceeds of the sale. I simply signed the Warranty Deed and 

returned it as requested. I did not have anything to do with the sale of the 

property nor did I initiate any contact regarding this transaction.

Douglas made identical allegations in his affidavit but also acknowledged that he “called 

Capital Title once or twice inquiring what this matter was about.”

Capital Title responded that the brothers’ involvement in the transaction was more 

than incidental because they: (1) participated in email and phone correspondence with 

Capital Title regarding the sale of the property and the distribution of the proceeds; (2) 

executed a general warranty deed and a document titled “Seller Proceeds Instructions”

and returned these documents to Capital Title in Texas; (3) received proceeds from the 

sale drawn on a Texas bank account; and (4) incurred taxes in Texas from the sale of the 

property. Capital Title filed an affidavit from a corporate representative that states, in part:

5. In 2019, Carolyn Shank entered into a contract to sell the [p]roperty 

and sought a title insurance policy from Capital Title as part of the 

sale[.] Capital Title also served as the escrow agent. At this time 

Carolyn Shank signed an Affidavit of Heirship swearing that there 

was no administration of the estate and none was necessary.

6. Because there had not been an administration, Capital Title

discussed with each of the four children, Robert [Jr.], David (through 

Robert [Jr.]), Mark and Douglas Shank[,] about distribution of the 

proceeds from the sale of the [p]roperty. 

7. Capital Title was instructed by Robert Shank [Jr.] that he and David 

Shank did not want payment from the sale of the [p]roperty and that 

their proceeds should go to Carolyn Shank. In turn, Carolyn Shank 

signed a distribution statement causing that portion of the proceeds 

to be disbursed evenly to Mark and Douglas Shank.
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8. Moreover, Mark and Douglas Shank entered into Proceeds 

Distribution Agreements with Capital Title instructing Capital Title in 

Texas, how to disburse their proceeds from the sale of the [p]roperty. 

However, Robert Shank [Jr.] and David Shank never entered into 

any such agreements.

9. Capital Title is no longer holding any proceeds from this sales 

transaction. Those funds were released pursuant to the distribution 

statement signed by Carolyn Shank at the time of closing, and the 

Proceeds Distribution Agreements provided to Capital Title at the 

time of closing from Mark and Douglas Shank. Capital Title acted in 

reliance upon and complied with the instructions it received under 

the Proceeds Distribution Agreements it was provided by Mark and 

Douglas Shank.

Capital Title also provided various supporting documents, including copies of the sales

contract between Carolyn and the buyers, the affidavit of heirship executed by Carolyn, 

Robert Sr.’s unprobated will, the general warranty deed, the settlement statement 

executed by Carolyn, the “Seller Proceeds Instructions” completed and signed by 

Douglas and Mark, 1099-S forms 2 signed by Douglas and Mark, bank statements 

showing the distributions from Capital Title to Douglas and Mark, and email 

correspondence between Capital Title and Robert Jr., Douglas, and Mark.

After holding a hearing, the trial court granted the special appearances, issuing no 

findings of fact or conclusions of law. This interlocutory appeal ensued. See TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(a)(7).

II. STANDARD OF REVIEW & APPLICABLE LAW

A. Standard of Review

“A court must have both subject matter jurisdiction over a case and personal 

2 A 1099-S form is used “to report the sale or exchange of real estate” to the Internal Revenue 

Service. About Form 1099-S, Proceeds from Real Estate Transactions, INTERNAL REVENUE SERV.,

https://www.irs.gov/forms-pubs/about-form-1099-s (Mar. 12, 2021).
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jurisdiction over the parties to issue a binding judgment.” Luciano v. 

SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 7–8 (Tex. 2021); Spir Star AG v. Kimich, 

310 S.W.3d 868, 871 (Tex. 2010). Personal jurisdiction involves a court’s ability to bind a 

particular party to that judgment. Luciano, 625 S.W.3d at 8; CSR Ltd. v. Link, 925 S.W.2d 

591, 594 (Tex. 1996). A special appearance allows a nonresident to appear in a Texas 

court for the limited purpose of challenging the court’s exercise of personal jurisdiction. 

See TEX. R. CIV. P. 120a(1).

Whether a trial court may exercise personal jurisdiction over a nonresident 

defendant is a question of law we review de novo. Searcy v. Parex Res., Inc., 496 S.W.3d 

58, 66 (Tex. 2016) (citing Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 

805–06 (Tex. 2002)). In resolving this legal question, the trial court may be required to 

decide questions of fact. Luciano, 625 S.W.3d at 8; Am. Type Culture Collection, 83 

S.W.3d at 806. “When, as here, the trial court does not issue findings of fact and 

conclusions of law with its judgment, we presume all factual disputes were resolved in 

favor of the trial court’s decision unless they are challenged on appeal.” Luciano, 625 

S.W.3d at 8; see Old Republic Nat’l Title Ins. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018) 

(citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)).

B. Personal Jurisdiction

Under Texas’s long-arm statute, Texas courts may exercise personal jurisdiction 

over a nonresident defendant that “does business” in Texas. See TEX. CIV. PRAC. & REM.

CODE ANN. § 17.042; PHC-Minden, L.P., v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 

(Tex. 2007). A nonresident “does business” in Texas if, among other things, it contracts 
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with a Texas resident and either party performs the contract in whole or in part in Texas 

or the nonresident commits a tort in whole or in part in Texas. TEX. CIV. PRAC. & REM.

CODE ANN. § 17.042(1), (2). 

However, because the exercise of personal jurisdiction over a nonresident 

implicates due process concerns, the Texas long-arm statute reaches only “as far as the 

federal constitutional requirements of due process will permit.” PHC-Minden, 235 S.W.3d 

at 166 (quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)); see

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918 (2011) (“A state 

court’s assertion of jurisdiction exposes defendants to the State’s coercive power, and is 

therefore subject to review for compatibility with the Fourteenth Amendment’s Due 

Process Clause.” (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). 

Accordingly, in addition to its own decisions, the Supreme Court of Texas relies on 

personal jurisdiction precedent from the United States Supreme Court and other federal 

courts. PHC-Minden, 235 S.W.3d at 166.

The exercise of personal jurisdiction satisfies due process if (1) the nonresident 

defendant established minimum contacts with the forum state and (2) the exercise of 

jurisdiction comports with traditional notions of fair play and substantial justice. Id. (citing 

Int’l Shoe, 326 U.S. at 316). When a nonresident defendant purposefully avails itself of 

the privileges and benefits of conducting business in a foreign jurisdiction, its contacts are 

sufficient to confer the forum with personal jurisdiction over the defendant. Moncrief Oil 

Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013) (citing Retamco Operating, 

Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009)). Only the defendant’s 
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purposeful contacts are relevant to the inquiry; unilateral activity of another party or third 

person, as well as random, isolated, or fortuitous contacts by the defendant, are 

insufficient to prove the defendant purposefully availed itself of the forum. Cornerstone 

Healthcare Grp. Holding, Inc. v. Nautic Mgmt. VI, L.P., 493 S.W.3d 65, 70 (Tex. 2016) 

(citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005)).

Once minimum contacts have been established, the exercise of jurisdiction will 

typically comport with traditional notions of fair play and substantial justice. Spir Star, 310 

S.W.3d at 878 (citing Guardian Royal Exch. Assurance, Ltd. v. English China Clays, 

P.L.C., 815 S.W.2d 223, 231 (Tex. 1991)). To establish the contrary, the defendant must 

present “a compelling case that the presence of some consideration would render 

jurisdiction unreasonable.” Id. at 879 (quoting Guardian Royal, 815 S.W.2d at 231). Those 

considerations include: (1) the burden on the defendant; (2) the forum state’s interest in 

adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective 

relief; (4) the 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. Id. at 878 (citing Guardian Royal, 815 S.W.2d at 

231).

A defendant’s contacts with the forum can give rise to either general or specific 

jurisdiction. Cornerstone Healthcare, 493 S.W.3d at 71. The central inquiry under specific 

jurisdiction is the relationship between the defendant, the forum state, and the plaintiff’s 

claim. Id. (citing Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575–76 (Tex. 

2007)). General jurisdiction, on the other hand, does not require a nexus between the 
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defendant’s in-state contacts and the plaintiff’s claim; instead, the focus is solely on the 

defendant’s contacts with the forum. Helicopteros Nacionales de Colom., S.A. v. Hall, 466 

U.S. 408, 414 (1984) (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952)); 

PHC-Minden, 235 S.W.3d at 168. 

Specific jurisdiction, which is alleged here, is appropriate when the plaintiff’s claim 

arises from or relates to the defendant’s contacts with the forum state. Cornerstone 

Healthcare, 493 S.W.3d at 71 (citing Spir Star, 310 S.W.3d at 873). To satisfy this 

requirement, “there must be a substantial connection between those contacts and the 

operative facts of the litigation.” Old Republic, 549 S.W.3d at 560 (citing Moki Mac, 221 

S.W.3d at 585).

The plaintiff bears the initial burden of alleging facts that establish the trial court’s 

jurisdiction. Searcy, 496 S.W.3d at 66 (citing Retamco Operating, 278 S.W.3d at 337). 

The burden then shifts to the defendant to negate all bases for personal jurisdiction that 

exist in the plaintiff’s pleading. Id. (citing Retamco Operating, 278 S.W.3d at 337). If the 

defendant disproves the plaintiff’s jurisdictional allegations, then the plaintiff should 

present evidence in support of the petition’s allegations. Kelly v. Gen. Interior Constr., 

Inc., 301 S.W.3d 653, 659 (Tex. 2010). In a specific jurisdiction analysis, “we must 

analyze the defendant’s contacts ‘on a claim-by-claim basis’ to determine whether each 

claim arises out of or is related to the defendant’s minimum contacts.” TV Azteca v. Ruiz, 

490 S.W.3d 29, 37 (Tex. 2016) (quoting Moncrief Oil, 414 S.W.3d at 150).

III. ANALYSIS

The sole issue before us is whether Douglas and Mark’s contacts with Texas are 
10

sufficient to confer the trial court with specific jurisdiction over them as to Capital Title’s 

unjust enrichment claim. Although the parties highlight the facts that support their 

respective positions, the facts themselves are not in dispute. 

A. Purposeful Availment

Douglas and Mark contend that they did not purposefully avail themselves of the 

privilege of conducting activities in Texas because Carolyn initiated the sale, and they

“merely responded and complied with requests initiated by [Capital Title] to effectuate the 

sale of the [p]roperty owned by [their] stepmother and father prior to his death.” At first 

blush, their argument has some appeal.

Robert Sr. and Carolyn’s decision to purchase real property in Texas created a 

continuing relationship for them with the state. See Retamco Operating, 278 S.W.3d at

340 (“Republic, by purchasing Texas real property, has purposefully availed itself of the 

privilege of conducting activities in Texas.”). But we cannot attribute their unilateral 

decision to Douglas and Mark. See Cornerstone Healthcare, 493 S.W.3d at 70. 

Likewise, Carolyn elected not to probate Robert Sr.’s will, effectively forgoing her 

right to inherit his interest in the property and keep all the proceeds from the sale. See id.

Stated differently, Douglas and Mark only acquired an interest in the property because 

Carolyn decided not to probate the will. See TEX. EST. CODE ANN. § 201.003(c). The fact 

that they passively acquired an interest in the property could be described as fortuitous. 

See Johnson v. Kindred, 285 S.W.3d 895, 902 (Tex. App.—Dallas 2009, no pet.) (holding 

trust beneficiary did not purposefully avail himself because trustee unilaterally selected 

Texas property for purchase and beneficiary was merely a “passive investor”).
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Finally, Carolyn alone initiated the sale and engaged Capital Title to issue a title 

policy and serve as the escrow agent. See Cornerstone Healthcare, 493 S.W.3d at 70. 

Indeed, it was Capital Title that informed the four brothers about the impending sale and

their respective interests in the proceeds if the sale went through. Up to this point, we 

agree that Douglas and Mark did not purposefully avail themselves of the privileges of 

doing business in Texas.

But regardless of how they initially became involved with the transaction, by 

signing the deed and accepting the proceeds, the brothers made a purposeful decision 

to avail themselves of Texas law and profit from their ownership interests in Texas real 

property. Although Robert Sr. was a resident of Kansas at the time of his death, Texas 

law controlled the descent and distribution of his interest in the property. See Nw. Nat’l

Cas. Co. v. Doucette, 817 S.W.2d 396, 399 (Tex. App.—Fort Worth 1991, writ denied) 

(“[Q]uestions of descent and distribution are controlled by the state where the realty of 

the estate is located.” (citing Martinez v. Gutierrez, 66 S.W.2d 678, 683 (Tex. [Comm’n 

Op.] 1933))). Thus, Douglas and Mark benefitted under Texas’s intestacy laws, and their

interests in the property vested immediately upon their father’s death approximately a 

year prior to the sale. See TEX. EST. CODE ANN. §§ 101.001(b), 201.003(c). 

The record reflects, through a series of emails, that Douglas and Mark were 

deliberate in their decision to join the transaction, waiting approximately a month after the 

closing date to execute the general warranty deed. Before signing the deed, the brothers 

asked Capital Title to send them the settlement statement and their father’s will. Douglas 

then requested to review “current documents that demonstrate owners of record for this 
12

property.” In a subsequent email from Capital Title to the brothers, the escrow officer 

asked them to confirm whether they were “ready to move forward with signing the 

documentation” because the buyers were growing impatient. In response, Douglas asked 

Capital Title to confirm how the proceeds would be distributed. Capital Title replied that 

Carolyn would receive half and Douglas and Mark would split the other half because 

“Robert [Jr.] and David did not request payment.” Capital Title reiterated that “the buyers 

are anxious to finalize this transaction.”

“Jurisdiction is premised on notions of implied consent—that by invoking the 

benefits and protections of a forum’s laws, a nonresident consents to suit there.”

Michiana, 168 S.W.3d at 785 (citing World–Wide Volkswagen Corp. v. Woodson, 444 

U.S. 286, 297 (1980)). But “a nonresident may purposefully avoid a particular jurisdiction 

by structuring its transactions so as neither to profit from the forum’s laws nor be subject 

to its jurisdiction.” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985)).

Here, if the brothers wanted to avoid jurisdiction in Texas with respect to this transaction, 

then they could have simply refused to sign the deed. And if they wanted to sever all ties 

to Texas with respect to the property, then they could have executed a quitclaim deed in 

favor of Carolyn or their brothers. See Enerlex, Inc. v. Amerada Hess, Inc., 302 S.W.3d 

351, 354 (Tex. App.—Eastland 2009, no pet.) (“A quitclaim deed conveys the grantor’s 

right in that property, if any.” (citing Geodyne Energy Income Prod. P’ship I–E v. Newton 

Corp., 161 S.W.3d 482, 486 n.12 (Tex. 2005))).

Instead, they elected to sign the general warranty deed and convey their interests 

to the buyers in exchange for a portion of the sales proceeds. In doing so, they established 
13

an ongoing relationship between themselves, the buyers, and Texas. See Stumhoffer v. 

Perales, 459 S.W.3d 158, 165 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)

(explaining that “a general warranty deed expressly binds the grantor to defend against 

title defects created by himself and all prior titleholders”). This decision was made solely 

by the brothers; it cannot be attributed to anyone else. See Cornerstone Healthcare, 493 

S.W.3d at 70. Accordingly, we conclude that by choosing to participate in the transaction, 

Douglas and Mark purposefully availed themselves of the privileges and benefits of 

conducting activities in Texas.

B. Substantial Connection

The brothers argue that their potential liability “does not arise from or relate to any 

of [their] contacts with Texas” because Capital Title was relying on the settlement 

statement executed by Carolyn—as opposed to any representations made by them—

when it distributed the proceeds. Although they couch their argument in the correct 

language, Douglas and Mark ask us to engage in a merits-based analysis that focuses 

on whether their conduct proximately caused the other parties’ injuries. The Supreme 

Court of Texas has specifically eschewed this approach to the relatedness inquiry. See 

Moki Mac, 221 S.W.3d at 583 (rejecting a proximate cause test as exceeding the 

guarantees of due process and noting that such an analysis would “require a court to 

delve into the merits to determine whether a jurisdictional fact is actually a legal cause of 

the injury”).

Rather, in adopting “a middle ground,” the supreme court requires only “a 

substantial connection between [the nonresident’s] contacts and the operative facts of the 
14

litigation.” Id. at 585 (citing Guardian Royal, 815 S.W.2d at 229–33; Rush v. Savchuk, 

444 U.S. 320, 329 (1980)). Here, Capital Title has alleged that if it distributed the proceeds 

from the sale in error, then Douglas and Mark were unjustly enriched, and judgment 

should lie against them for the overpayment. As corresponding parts of the same 

transaction, there was a substantial connection between Douglas and Mark executing the 

deed and then accepting the proceeds as consideration for the conveyance. See id. It 

was error for the trial court to conclude otherwise. 

C. Traditional Notions of Fair Play

Other than making a conclusory statement that exercising jurisdiction over them

“would violate traditional notions of fair play and substantial justice,” Douglas and Mark 

did not argue or offer evidence in the trial court to show how defending a suit in Texas 

would be particularly burdensome to them. See Spir Star, 310 S.W.3d at 878 (citing 

Guardian Royal, 815 S.W.2d at 231). To the contrary, Douglas resides in a neighboring 

state, and Mark acknowledged in his affidavit that he has traveled to Texas in the past to 

visit his father at the property. See Moncrief Oil, 414 S.W.3d at 155 (acknowledging that 

defending a suit in another state is inherently burdensome to all nonresidents but that 

“[d]istance alone cannot ordinarily defeat jurisdiction”); Guardian Royal, 815 S.W.2d at 

231 (noting that “modern transportation and communication have made it much less 

burdensome” for nonresidents to defend themselves in another jurisdiction). Moreover, 

because Carolyn, David, and Robert Jr.’s claims against Capital Title will be heard in

Texas, it would be more efficient to litigate all the claims as to all the parties in one court, 

as opposed to three courts, each in a separate state. See Moncrief Oil, 414 S.W.3d at 
15

155; Spir Star, 310 S.W.3d at 879.

Because Douglas and Mark failed to meet their burden to present “a compelling 

case that the presence of some consideration would render jurisdiction unreasonable,” 

we conclude that the exercise of jurisdiction will comport with traditional notions of fair 

play and substantial justice. See Spir Star, 310 S.W.3d at 879 (quoting Guardian Royal, 

815 S.W.2d at 231). Accordingly, the trial court erred when it granted Douglas and Mark’s 

special appearance. We sustain Capital Title’s issue.

IV. CONCLUSION

We reverse the trial court’s judgment and remand the case for further proceedings.

GINA M. BENAVIDES

Justice

Delivered and filed on the

17th day of February, 2022.