Wayne Lensing Appellants Brief

7/28/2019 Wayne Lensing Appellants Brief

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NO. 05-13-00353-CV

IN THE FIFTH COURT OF APPEALSDALLAS, TEXAS

WAYNE LENSING and LEFTHANDER MARKETING, INC.

Appellants

v.

DAVID CARD and CLEO LOWE

Appellees

On Appeal from the 298th District CourtDallas County, Texas, Cause No. DC-12-06631-MHonorable Emily G. Tobolowsky, Presiding Judge

APPELLANTS BRIEF

Kenneth E. EastState Bar No. 00790622FOSTER & EAST9001 Airport Freeway, Suite 675

Oral Argument Requested North Richland Hills, Texas 76180Phone: (817) 788-1111Fax: (817) [email protected]

ATTORNEY FOR APPELLANTSWAYNE LENSING and LEFTHANDERMARKETING, INC.

ACCEPTED225EFJ017473670FIFTH COURT OF APDALLAS, TEXAS13 May 8 A9:22Lisa MatzCLERKFILED IN

5th COURT OF APPEALSDALLAS, TEXAS

5/8/2013 9:22:11 AMLISA MATZ

Clerk
mailto:[email protected]:[email protected]


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IDENTITY OF PARTIES AND COUNSEL

1. Appellants. Appellants are Wayne Lensing and Lefthander

Marketing, Inc., who are two of the four defendants in the trial court

proceeding below. Appellants trial and appellate counsel is Kenneth E. East,

Foster & East, 9001 Airport Freeway, Suite 675, North Richland Hills, Texas

76180, 817-788-1111, 817-485-2836 (fax), [email protected].

2. Appellees. Appellees are David Card and Cleo Lowe, who are the

only plaintiffs in the trial court proceeding. Appellees trial and appellate

counsel is Wm. Nicholas Manousos, 3812 N. Hall Street, Dallas, Texas 75219,

214-740-1711; 214-740-1744 (fax), [email protected].

3. Other parties below. The remaining two defendants in the trial

court proceeding are not parties to this appeal. They are: Holly Ragan,

represented by D. Lee Thomas, Jr., 507 West Central Ave., Fort Worth, Texas

76106, 817-625-8866, 817-625-8950 (fax), [email protected]; and Heritage

Auctions, Inc., represented by Samuel E. Joyner, RossJoyner, 1700 Pacific

Avenue, Suite 3750, Dallas, Texas 75201, 214-382-0894, 972-661-9401 (fax),

[email protected].

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REQUESTING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4B. Wayne Lensing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4C. The Museum Collection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5D. Lefthander Marketing, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6E. Ragan Contacts Lensing in Illinois, Claims Unencumbered

Ownership of, and Sells, the Headstone. . . . . . . . . . . . . . . . . . . . 7F. Ragans Prior Contact with Heritage. . . . . . . . . . . . . . . . . . . . . . . 9G. Other Contacts with Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Standard of Review and Burdens. . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132. Plaintiffs bear the initial and ultimate burdens.. . . . . . . . 14

B. The law of personal jurisdiction, generally. . . . . . . . . . . . . . . . . 17

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C. Argument in support of Issue No. 1. . . . . . . . . . . . . . . . . . . . . . . 20

The trial court erred by denying Appellants specialappearance because (1) Appellees only claimed

jurisdictional facts are insufficient as a matter of lawto confer personal jurisdiction over Appellants, and(2) even if any of the pleaded facts were to beconsidered sufficient on their face, Appellants havefully negated them, and the evidence is legallyinsufficient, or alternatively, factually insufficient, tosupport any implied findings conferring jurisdiction.

1. Plaintiffs jurisdictional allegations and a

summary of the few disputed facts in this case. . . . . . . . 20

2. Appellees only claimed jurisdictional facts areinsufficient as a matter of law to confer personal

jurisdiction over Appellants.. . . . . . . . . . . . . . . . . . . . . . . . 25

a. Plaintiffs-Appellees First Allegation.. . . . . . . . . . . 26b. Plaintiffs-Appellees Second Allegation. . . . . . . . . 28c. Plaintiffs-Appellees Third Allegation.. . . . . . . . . . 33

d. Plaintiffs-Appellees Fourth Allegation.. . . . . . . . . 38

3. Even if any of the pleaded facts were to be consideredsufficient on their face, Appellants have fully negatedthem, and the evidence is legally insufficient, oralternatively, factually insufficient to support anyimplied findings conferring jurisdiction. . . . . . . . . . . . . . 40

4. Conclusion of Argument Regarding Issue No. 1.. . . . . . 44

D. Argument regarding Issue No. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Under the facts of this case, the trialcourts exercise of personal jurisdiction

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over Appellants violates traditionalnotions of fair play and substantial

justice.

CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . 48

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

APPENDIX.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

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TABLE OF AUTHORITIES

Cases

Am. Type Culture Collection, Inc. v. Coleman,83 S.W.3d 801 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., SolanoCounty, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). . . . . . 17, 45

Ashdon, Inc. v. Gary Brown & Associates, Inc., 260 S.W.3d 101(Tex. App.Houston [1st Dist.] 2008, no pet.). . . . . . . . . . . . . . . . . . . 34

Assurances Generales Banque Nationale v. Dhalla, 282 S.W.3d 688(Tex. App.Dallas 2009, no pet.). . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789(Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 19, 33, 36, 44

Burger King Corp. v. Rudzewicz, 471 U.S. 462,105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 18, 45

Capital Tech. Info. Services, Inc. v. Arias & Arias Consultores,270 S.W.3d 741 (Tex. App.Dallas 2008, pet. denied).. . . . . . . . . . . . 14

Clark v. Noyes, 871 S.W.2d 508 (Tex. App.--Dallas 1994, no writ).. . . . . . . 35

Cont'l Credit Corp. v. Norman, 303 S.W.2d 449(Tex. Civ. App.--San Antonio 1957, writ ref'd n.r.e.). . . . . . . . . . . . . . 30

CSR Ltd. v. Link, 925 S.W.2d 591 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . 33

Dalton v. R & W Marine, Inc., 897 F.2d 1359 (5th Cir. 1990). . . . . . . . . . . . . 37

Dolenz v. Nat'l Bank of Texas at Fort Worth, 649 S.W.2d 368(Tex. App.--Fort Worth 1983, writ ref'd n.r.e.).. . . . . . . . . . . . . . . . 30, 41

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Ex parte Smith, 645 S.W.2d 310 (Tex. Crim. App. 1983). . . . . . . . . . . . . . 31, 41

Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798(Tex. App.--Houston [1st Dist.] 1998, pet. denied). . . . . . . . . . . . . . . . 28

Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C.,815 S.W.2d 223 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 45

Helicopteros Nacionales de Colombia, S.A. v. Hall,466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). . . . 19, 33, 34, 35, 36

Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630(Tex. App.--Dallas 1993, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Hydrokinetics, Inc. v. Alaska Mech., Inc., 700 F.2d 1026 (5th Cir. 1983). . . 27

In re Rollings, 451 Fed. Appx 340 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . 30

Int'l Shoe Co. v. Washington, 326 U.S. 310,66 S.Ct. 154, 90 L.Ed. 95 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Int'l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805

(Tex. App.--Fort Worth 1994, writ denied).. . . . . . . . . . . . . . . . . . . . . . 35

James v. Ill. Cent. R.R., 965 S.W.2d 594(Tex. App.--Houston [1st Dist.] 1998, no pet.). . . . . . . . . . . . . . . . . . . . 35

Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653(Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15, 24, 25

Khorshid, Inc. v. Christian, 257 S.W.3d 748

(Tex. App.--Dallas 2008, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Miele v. Blockbuster Inc., 3-04-CV-1228-BD,2005 WL 176170 (N.D. Tex. Jan. 26, 2005). . . . . . . . . . . . . . . . . . . . . . . . 38

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Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007). . . 17, 19

Nagle v. Oppedisano, 05-05-01246-CV, 2006 WL 2348975(Tex. App.--Dallas Aug. 15, 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . 27

Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769 (Tex. 1995).. . . . . . . . . . 32

Novamerican Steel, Inc. v. Delta Brands, Inc., 231 S.W.3d 499(Tex. App.--Dallas 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491 (Tex. 1988). . . . . 14

Pervasive Software Inc. v. Lexware GmbH & Co. KG,

688 F.3d 214 (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 41

PHCMinden, L.P. v. KimberlyClark Corp., 235 S.W.3d 163 (Tex. 2007). 17

Rapaglia v. Lugo, 372 S.W.3d 286 (Tex. App.Dallas 2012, no pet.). . . . . 32

Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516,43 S.Ct. 170, 67 L.Ed. 372 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex. 1990). . . . . . . . . . . . . . . . . . . . 18

Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135(Tex. App.Dallas 2003, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . 32

Yfantis v. Balloun, 115 S.W.3d 175(Tex. App.--Fort Worth 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Statutes and Rules

Tex. Civ. Prac. & Rem. Code 17.041-17.045. . . . . . . . . . . . . . . . . . . . . . 16-17

Tex. Civ. Prac. & Rem. Code 134.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Texas Penal Code 31.03.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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STATEMENT OF THE CASE

This lawsuit involves rather notorious subject matter: a headstone that

once marked the grave site of Lee Harvey Oswald. But the relevant legal

issues are more mundane. In short, Appellants bring this interlocutory appeal

from the trial courts denial of their special appearance. CR 437, 446.

Appellees, David Card and Cleo Lowe, filed suit below, claiming that one of

their extended family members, Holly Ragan (a defendant below but not a

party to this appeal), sold the headstone to Appellants, Wayne Lensing and

Lefthander Marketing, Inc. (a museum curator and the corporation that runs

the museums daily operations in Roscoe, Illinois), both nonresidents of

Texas. See CR 112-126.

Appellees claim that Ragans sale of the headstone to Lensing

constituted conversion and other torts, and they seek a declaratory judgment

that they are the rightful owners of the headstone. Id. Appellees have sued

Appellants Lensing and Lefthander Marketing, Inc., Holly Ragan, and

Heritage Auctions, Inc. (an auction house that declined to purchase the

headstone but gave Ragan contact information for Appellant Lensing). Id.

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After being sued, Appellants timely filed their special appearance. CR

20. The trial court held an evidentiary hearing on the special appearance on

November 16, 2012. The trial court issued its order, denying the special

appearance, on March 4, 2013. Ex. A; CR 437. Appellants timely requested

findings of fact and conclusions of law (CR 444; CR Supp. No. 1 at 5); the trial

court, by letter, dated March 12, 2013, expressly elected not to issue any

findings of fact or conclusions of law. Ex. B; CR Supp. No. 1 at 4. Appellants

timely perfected this interlocutory appeal, as allowed by section 51.014(a)(7)

of the Texas Civil Practice & Remedies Code, on March 12, 2013. CR 446.

STATEMENT REQUESTING ORAL ARGUMENT

Appellants respectfully request oral argument. Although Appellants

believe the core issues in this appeal to be fairly straightforward, they

believe oral argument would assist the Court by clarifying the written

arguments and allowing counsel to answer any questions the Court may

have.

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STATEMENT OF FACTS

A. Introduction

Both Appellants are nonresidents of Texas. CR 21, 244-45 (Ex. C).

Appellant Wayne Lensing is an individual who resides in Illinois. CR 244.

Appellant Lefthander Marketing, Inc., is an Illinois corporation that conducts

business only in Illinois. CR 244-45. A Texas resident, Holly Ragan, solicited

Lensing to purchase the subject headstone from her. CR 241, 260. Ragan

appeared to be the undisputed sole owner of the item. CR 241-42, 257, 258-59.

Appellees were not parties to the transaction between Ragan and Lensing and

were, in fact, complete strangers to Appellants at the time Appellants

purchased the headstone from Ragan. CR 246-47. Wayne Lensings contacts

with Texas are minimal. He has been to Texas only four times in his entire

life. CR 248-49. Lefthander Marketing, Inc., has never had any contacts with

Texas. CR 244-45, 248.

B. Wayne Lensing

Wayne Lensing was born and raised in Iowa. CR 244. He moved to the

State of Illinois in 1968, where he has lived and resided ever since. Id. He

currently lives in Poplar Grove, Illinois, where he has lived since 2006. Id. He

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is not a resident or domiciliary of any other state, and he does not own or

maintain any other homes. Id. Wayne Lensings primary occupation is

building race car chassis and parts, which he has been doing for over twenty

years, following his earlier careers as a race car driver and as an assembly line

worker for Chrysler. CR 239.

C. The Museum Collection

As an offshoot of his race car businesses and interests, Lensing has had

the opportunity to acquire a number of unique and interesting automobiles,

many of which have historic significance. CR 239-40. His collection includes

automobiles that span from 19th century horse drawn carriages to legendary

race cars--from Richard Pettys 1960 Plymouth Stock Car to Danica Patrick's

Rahal-Letterman Racing 2005 IRL IndyCar--to cars used in television and

movies, including one of the Batmobiles, and the presidential limousines

that carried Presidents Harry S. Truman, Lyndon B. Johnson, and Ronald

Reagan. Id.

His interest in historic artifacts grew from automobiles to other items,

and he now has a significant collection of varied historic artifacts, particularly

related to world leaders and U. S. presidents, including several complete

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E. Ragan Contacts Lensing in Illinois, Claims UnencumberedOwnership of, and Sells, the Headstone

Approximately in early 2010, Lensing was contacted in Illinois by

telephone by a woman, who identified herself as Holly Ragan. CR 241, 260.

Ms. Ragan explained to Lensing that she had inherited the original headstone

that had marked the grave of Lee Harvey Oswald. Id. Ms. Ragan explained

that it was the stone that was on Oswalds grave in the Shannon Rose Hill

Memorial Park in Fort Worth, Tarrant County, Texas, from Oswalds original

burial in 1963, until the stone was stolen four years later. Id. Ms. Ragan

explained that after the headstone was recovered, it was returned to Lee

Harvey Oswalds mother, Marguerite Oswald, who placed it in storage under

her house in Fort Worth. Id.

Ms. Ragan explained to Mr. Lensing that relatives of hers had purchased

that house after Marguerite Oswald passed away. Id. Sometime thereafter,

the headstone was discovered under the house. Id. According to Ms. Ragan,

family members later gave it to her husbands parents, who later gave it to her

husband, Johnny Ragan. Id. After Johnny Ragans death in 2008, according

to Ms. Ragan, the headstone passed to her, as her husbands heir, through a

probate proceeding in Tarrant County, Texas. Id.

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Mr. Lensing further questioned Ms. Ragan about the headstones

authenticity. Id. Ragan provided Lensing with copies of probate documents

from her husband, Johnny Ragans, probate case, which Mr. Lensing

understood to mean that the headstone had passed to Ms. Ragan through a

court-approved probate proceeding. CR 241-42, 252-55, 260-61.

Given Ms. Ragans assurances about her ownership of the headstone

and the supporting probate documents, Lensing decided to purchase the

stone from Ragan. CR 242. Lensing had no reason to believe anything other

than Ragan was the headstones only and rightful owner. He had never heard

of Appellees Card or Lowe, and he could not have known that they would

later assert a claimed interest in the headstone based on some alleged,

unwritten bailment agreement between deceased members of the Card-Ragan

families. CR 246-47.

After completing the negotiation, in Illinois, with Ms. Ragan to purchase

the headstone, Lensing flew his personal plane to Fort Worths Spinks

Airport. CR 242, 260. Lensing met Ragan at the Fort Worth airport. Id. She

had brought the headstone to the airport in her car. Id. Lensing removed the

headstone from Ragans car, placed it into his plane, and flew back home to

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agent for service in Texas, nor have they ever. CR 245. Neither defendant

maintains a place of business in Texas nor do they have any employees,

servants, or agents in Texas, nor have they ever. Id.

Again, other than picking up the headstone in Fort Worth, as described

above, Lensing has been to Texas only three other times in his entire life. CR

248. When he was much younger, Lensing visited a car race in Houston and

drove through parts of Texas, including Dallas, on his way home. CR 249.

On museum-related business, he has been only twice.

In April or May 2010, he flew to Texas, rented a Penske truck and drove

to the Pate Museum in Cresson, Texas. CR 248. The museum was closing,

and Lensing went to acquire items from its collection, including a replica

space capsule mentioned by Plaintiffs in their amended petition and a few

other NASA-related pieces. Id. During that same trip, Lensing went to

Heritage and a warehouse to pick up a stuffed lion, which he had purchased

through an online auction (while in Illinois) conducted by Heritage. Id.

(Lensing has never physically attended an auction conducted by Heritage in

Texas or elsewhere; all of his purchases from Heritage have been from Illinois

through online auctions. Id.). And a few months later, in June 2010, Lensing

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contract claim involving Appellees. And Appellants could not have

committed the torts of conversion or theft against Appellees in Texas because

they did not act to deprive PLAINTIFFS of their right to possession of the

grave marker, as alleged by Appellees. The claim, with respect to there

being any Texas-based tortious conduct, in fact, is wholly-conclusory and

factually insufficient to support jurisdiction. Lensings only conceivably

tortious act toward Appellees could have occurred only later, in Illinois, when

Appellees contacted him, in Illinois, demanding that he give them the

headstone, and he, while in Illinois, refused to do so.

Appellees arguments with regard to specific jurisdiction could make

sense only if they were somehow in the shoes of Holly Ragan, which they are

not. If, for example, Lensings check to Ragan turned out to be insufficient,

Ragan might have been able to assert specific jurisdiction over him in a Texas

court based on a claim arising from their contract. But Appellees simply

were not parties to that transaction.

There is no general jurisdiction over Appellants. Lefthander Marketing,

Inc., has never had any contact with Texas. Wayne Lensing has been to Texas

only a few times in his entire life. He certainly has not maintained any type

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of continuous and systematic contacts with Texas. His occasional purchases

from Heritage Auctions, via internet sales, are nothing more than mere

purchases, which the Supreme Court has unequivocally held are not

sufficient to subject him to the general jurisdiction of Texas courts.

Appellees real complaint in this lawsuit is their allegation that Holly

Ragan converted the headstone and deceived Lensing into buying it from her

based on allegedly false claims of ownership. These Illinois Appellants,

however, should not be haled into a foreign jurisdiction to answer for Holly

Ragans alleged misconduct; to do so would violate traditional notions of fair

play and substantial justice.

The court should reverse and dismiss all of Appellees claims against

Appellants for lack of personal jurisdiction.

ARGUMENT

A. Standard of Review and Burdens

1. Standard of review

Whether a Texas court can exercise personal jurisdiction over a

nonresident is a question of law, and an appellate court thus . . . review[s] de

novo the trial courts determination of a special appearance. Kelly v. Gen.

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Interior Const., Inc., 301 S.W.3d 653, 657 (Tex. 2010). Factual questions may

sometimes first need to be resolved, however, and when, as here, a trial court

does not issue findings of fact and conclusions of law, all facts necessary to

support the judgment and supported by the evidence are implied. Id. (emphasis

added) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795

(Tex. 2002)). But any implied findings are not conclusive, and when, as here,

the appellate record includes the reporter's and clerk's records, the implied

findings may be challenged for legal and factual sufficiency. BMC Software

Belgium, N.V., 83 S.W.3d at 795.

2. Plaintiffs bear the initial andultimate burdens

The plaintiff in a lawsuit in which personal jurisdiction is disputed

bears the initial burden to plead sufficient allegations to bring a nonresident

defendant within the provisions of the long-arm statute. Id. at 793.

The plaintiff must allege facts that, if true, would make [the defendant]

subject to personal jurisdiction. Capital Tech. Info. Services, Inc. v. Arias &

Arias Consultores, 270 S.W.3d 741, 750 (Tex. App.Dallas 2008, pet. denied)

(emphasis added) (citing Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d

491, 496 (Tex. 1988)).

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allegations are presumed to be true, the evidence is legally insufficient to

establish jurisdiction; the defendant's contacts with Texas fall short of

purposeful availment; for specific jurisdiction, that the claims do not arise

from the contacts; or that traditional notions of fair play and substantial

justice are offended by the exercise of jurisdiction. Id.

Or, if facts are disputed, the defendant can present evidence that it has

no contacts with Texas, effectively disproving the plaintiff's allegations. Id.

But the plaintiff bears the ultimate burden to respond with its own evidence

that affirms its allegations, and it risks dismissal of its lawsuit if it cannot

present the trial court with evidence establishing personal jurisdiction. Id.;

see also Assurances Generales Banque Nationale v. Dhalla, 282 S.W.3d 688,

695 (Tex. App.Dallas 2009, no pet.) (If the nonresident defendant produces

evidence negating personal jurisdiction, the burden returns to the plaintiff to

show, as a matter of law, that the court has personal jurisdiction over the

nonresident defendant.).

B. The law of personal jurisdiction, generally

The Texas long-arm statute generally governs a Texas courts exercise

of jurisdiction over nonresident defendants. See Tex. Civ. Prac. & Rem. Code

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17.04117.045. And it is well established that the broad language of the

statute extends Texas courts' personal jurisdiction as far as the federal

constitutional requirements of due process will permit. See, e.g., BMC

Software Belgium, N.V., 83 S.W.3d at 795. But, it can extend it no further, and

the exercise of in personam jurisdiction over a nonresident defendant must

satisfy federal due process requirements. Assurances Generales Banque

Nationale, 282 S.W.3d 688, 696 (Tex. App.--Dallas 2009, no pet.) (citing Asahi

Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano County, 480 U.S. 102,

108, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Int'l Shoe Co. v. Washington, 326 U.S.

310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); PHCMinden, L.P. v. KimberlyClark

Corp., 235 S.W.3d 163, 166 (Tex. 2007); and Moki Mac River Expeditions v.

Drugg, 221 S.W.3d 569, 575 (Tex. 2007)).

Personal jurisdiction is constitutional only when two conditions are met:

(1) the defendant has 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 International Shoe Co., 326 U.S. at 316).

Sufficient minimum contacts exist only when a nonresident defendant has

purposefully availed itself of the privileges and benefits of conducting

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business in the foreign jurisdiction and has sufficient contacts with the forum

to confer personal jurisdiction. Id. (citing Burger King Corp. v. Rudzewicz,

471 U.S. 462, 47476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). A defendant

should not be subject to a foreign court's jurisdiction based upon random,

fortuitous, or attenuated contacts. Id. (citing Burger King, 471 U.S. at 475,

105 S.Ct. 2174).

The purpose of the analysis is to protect the defendant from being haled

into court when its relationship with Texas is too attenuated to support

jurisdiction. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). Courts,

therefore, must focus only on the defendant's activities and expectations and

not those of other parties. Id. In other words, a defendant cannot be haled

into a Texas court for the unilateral acts of a third party. Guardian Royal

Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.

1991). Here, for example, Plaintiffs claims that Holly Ragan wrongfully

exercised dominion and control over the headstone before she sold it to

Lensing are irrelevant and are insufficient as a matter of law to hale Lensing

into a Texas court to explain his innocent conduct in purchasing an item from

its purported and only apparent owner.

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A plaintiff seeking to demonstrate that a Texas court has personal

jurisdiction over a non-resident defendant must show that the defendants

minimum contacts with Texas give rise to specific or general personal

jurisdiction. BMC Software Belgium, N.V., 83 S.W.3d at 795-96 (citing

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 41314, 104

S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Specific jurisdiction is established if the

defendant's alleged liability arises from an activity conducted within the

forum. Id. For a nonresident defendant's forum contacts to support an

exercise of specific jurisdiction, there must be a substantial connection

between those contacts and the operative facts of the litigation.

Novamerican Steel, Inc. v. Delta Brands, Inc., 231 S.W.3d 499, 507 (Tex. App.--

Dallas 2007, no pet.) (quoting Moki Mac, 221 S.W.3d at 584).

General jurisdiction, on the other hand, is present when a defendant's

contacts in a forum are continuous and systematic so that the forum may

exercise personal jurisdiction over the defendant even if the cause of action

did not arise from or relate to activities conducted within the forum state.

BMC Software Belgium, N.V., 83 S.W.3d at 796. General jurisdiction requires

a showing that the defendant conducted substantial activities within the

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forum, a more demanding minimum contacts analysis than for specific

jurisdiction. Id. at 797.

C. Argument in support of Issue No. 1

The trial court erred by denying Appellants specialappearance because (1) Appellees only claimed

jurisdictional facts are insufficient as a matter oflaw to confer personal jurisdiction over Appellants,and (2) even if any of the pleaded facts were to beconsidered sufficient on their face, Appellants havefully negated them, and the evidence is legally

insufficient, or alternatively, factually insufficient,to support any implied findings conferringjurisdiction.

1. Plaintiffs jurisdictional allegations and a summary of the fewdisputed facts in this case

In their relevant pleading, their Second Amended Petition and Request

for Declaratory Judgment (Ex. D), Plaintiffs-Appellees set forth the following

allegations regarding personal jurisdiction:

10. This Court has both general and specific jurisdictionover the non-resident defendants, MUSEUM and LENSING,under the terms of the United States Constitution and the Texaslong-arm statute for the reasons set forth below.

11. Under the Texas long-arm statute, Texas courts have thepower to exercise personal jurisdiction over a nonresidentdefendant who does business in Texas. The statute provides thatdoing business in Texas includes, among other things, where aparty contracts by mail or otherwise with a Texas resident and

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either party is to perform the contract, in whole or in part, inTexas, or where the defendant commits a tort, in whole or in part,in Texas. Here, on information and belief, the non-residentdefendants negotiated and contracted, by mail, phone, or

otherwise, with Defendant Ragan, a Texas resident, directly,through, or as the result of the actions of HERITAGE, a Dallas,Texas-based company, for the sale and purchase of the gravemarker, and performed the contract, in whole or in part, in Texas,when LENSING traveled to Texas to pay for and/or takepossession of the grave marker (see PLAINTIFFS Exhibit A).Additionally, the non-resident defendants committed the torts of(1) conversion, when LENSING and MUSEUM wrongfullyexercised dominion or control over the grave marker when

physically taking possession of the grave marker in Texas, and (2)theft, under the Texas Theft Liability Act, when LENSING andMUSEUM unlawfully appropriated the grave marker in Texas, byphysically exercising dominion and control over the grave markerin Texas, without the effective consent of PLAINTIFFS, ownerof the grave marker, with the express intent to permanentlydeprive PLAINTIFFS of their right to possession of the gravemarker. All of PLAINTIFFS claims in this suit arise directlyfrom DEFENDANTS actions as set forth above.

This Courts exercise of jurisdiction over MUSEUM andLENSING comports with the requirements of federal due process.Personal jurisdiction over nonresident defendants isconstitutional when two conditions are met: (1) the defendant hasestablished minimum contacts with the forum state and (2) theexercise of jurisdiction comports with traditional notions of fairplay and substantial justice. Here, LENSING and/or MUSEUM,through LENSING, conducted negotiations with Texas resident,

Defendant RAGAN, facilitated by HERITAGE, and traveled toTexas to perform the terms of a contract pertaining to, to makepayment for, and to take possession of, the grave marker. Indoing so, said defendants purposely directed their activitiestoward Texas and purposely availed themselves of the privileges

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of conducting activities in Texas. All causes of action pledherein arise out of or are related to those contacts with Texas. Moreover, in conducting the activities in Texas as alleged herein,the non-resident defendants must have created the reasonable

anticipation that they could be sued in Texas. Accordingly, thenon-resident defendants established sufficient contacts with Texasto confer personal jurisdiction upon this Court, and the exerciseof jurisdiction over nonresident defendants LENSING andMUSEUM comports with notions of fair play and substantial

justice.

Moreover, on information and belief, LENSING and/orMUSEUM have had frequent and pervasive contacts with Texas

in contracting for the purchase of, leasing/borrowing, andtaking possession of, numerous items related to theassassination of President John F. Kennedy and/or to Lee HarveyOswald, and other items (e.g., NASA related items) purchased inTexas or leased or borrowed from individuals or entities locatedin Texas. Historic Auto Attractions, owned by LENSING and/orMUSEUM, currently displays and advertises the display of suchitems (see PLAINTIFFS Exhibit B). In at least one suchtransaction, LENSING, or LENSING on behalf of MUSEUM,

executed a written contract with Heritage agreeing that anydispute arising under said contract would be resolved under thelaws of the state of Texas, in Dallas County, Texas. Thesenumerous and consistent, ongoing contacts, support the courtsexercise of personal jurisdiction over the non-resident defendantsunder the due process/minimum contacts test.

CR 114-16 (emphasis added). These are Plaintiffs-Appellees only pleaded

allegations regarding personal jurisdiction (see CR 113-16), and they can be

summarized as follows:

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First Allegation: Appellants contracted with Holly Ragan andperformed part of that contract in Texas;

Second Allegation: Appellants committed the torts of conversion

and theft (in Texas);

Third Allegation: Appellants purchased things from Texas; and

Fourth Allegation: Appellants had a contract with Heritage relatedto one of those purchases, and that contractwith Heritage contained a Texas forumselection clause.

The first two allegations appear to be made in support of Plaintiffs-Appellees

claim as to specific jurisdiction, and the last two appear to relate to their claim

as to general jurisdiction.

Appellants do not dispute most of the allegations. Appellants do not

dispute that Lensing entered into a contract with Holly Ragan to purchase the

headstone and performed (in a sense) part of that contract in Texas. See CR

241-42. (Appellants may disagree about whether Lensings brief trip to Texas

related to that contract actually constituted performance, in a legal sense,

sufficient to subject them to personal jurisdiction were they in a dispute with

Holly Ragan, but, as discussed more fully below, it is immaterial to this case,

because Appellees were not parties to that transaction.) Appellants do not

deny that Lensing occasionally purchased items from Heritage Auctions, a

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Texas-based company, through internet auctions. CR 249. And Appellants

do not deny that in relation to at least one such purchase from Heritage that

Lensing may have agreed to a Texas forum selection clause should a dispute

arise between Heritage and himself related to the transaction. See CR 189 14

(. . . in connection with, relating to and/or arising out of this Agreement . .

. .); CR 249.

Appellants take issue only with the Second Allegation. For the record,

Appellants dispute that they committed the torts of conversion or theft at all,

under any circumstances, or in any place, as they deny that Plaintiffs-

Appellees have any right, title, or interest in the subject headstone. CR 246-47.

But, more importantly for the sake of this appeal, Appellants dispute

Plaintiffs-Appellees conclusory assertion that any such alleged torts were (or

possibly could have been) committed against Plaintiffs-Appellees in the State

of Texas. Id.

2. Appellees only claimed jurisdictional facts are insufficient asa matter of law to confer personal jurisdiction over Appellants

As discussed above, if the plaintiff fails to plead sufficient jurisdictional

facts, the defendant need only prove that it does not live in Texas to negate

jurisdiction. Kelly, 301 S.W.3d at 659. Also, if sufficient jurisdictional facts

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are alleged, the defendant can negate jurisdiction simply by demonstrating

that even if the plaintiffs factual allegations are presumed to be true, the

evidence is legally insufficient to establish jurisdiction. Id. Any difference

between these two standards is subtle. For example, in Kelly, the Supreme

Court noted that the plaintiff had pleaded jurisdictional allegations, but found

them to be legally insufficient to confer jurisdiction; yet the Court resolved the

matter in favor of the nonresident defendants by referencing the failure-to-

plead-facts standard and found that the defendants had thus met their special

appearance burden simply by proving that they do not live in Texas. Id. at

660.

Here, either Plaintiffs-Appellees attempt to plead jurisdictional facts is

so insufficient as to amount to a complete failure to plead adequate

jurisdictional facts, and because Appellants have, without dispute, proven

themselves not to live in Texas (CR 244-50), they met their special appearance

burden. Or Appellees jurisdictional allegations, even if accepted as true, are

legally insufficient to establish jurisdiction. See CR 113-16. Either way, the

trial court erred in denying Appellants special appearance.

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As listed above, Plaintiffs-Appellees have pleaded only four relevant

allegations, or categories of allegations, with regard to the question of

personal jurisdiction.

a. Plaintiffs-Appellees First Allegation

Even assuming, as Appellees allege, that Appellants contracted with

Holly Ragan and performed part of that contract in Texas, that fact does not

give rise to personal jurisdiction over Appellants, as a matter of law. Plaintiffs

seem to conflate concepts of specific and general jurisdiction in claiming that

Appellants entered into a contract with a different Texas resident and

performed part of that contract in Texas. Specifically, Plaintiffs point to the

contract between Lensing and Ragan, whereby Ragan sold Lensing the

headstone, apparently in support of their claim of specific jurisdiction. CR

114. Yet Plaintiffs do not dispute that they were not parties to that agreement.

RR Ex. 2 (Admissions 1-6). They even agree that at the time of that agreement

Appellants had no way of knowing even who they were, much less that they

had any plans to make a claim to the headstone. See RR 11-13.

Appellees seem to be saying that because Ragan could have haled

Lensing into a Texas court if, for example, Lensing had failed to pay her for

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Yfantis's contacts with Texas in relation to the licensing agreement are not

relevant to the issue of specific jurisdiction.); Garner v. Furmanite Australia

Pty., Ltd., 966 S.W.2d 798, 802 (Tex. App.--Houston [1st Dist.] 1998, pet.

denied) (holding that a contract negotiated between defendant and a third

party, not the plaintiff, could not form the basis for personal jurisdiction).

b. Plaintiffs-Appellees Second Allegation

Even assuming, as Appellees allege, that Appellants committed the torts

of conversion or theft at all, Plaintiffs make absolutely no non-conclusory

factual allegations to support any claim or inference that any such torts were,

or could have been, committed by Appellants in Texas. See CR 114-15, 122.

With regard to their conversion claim, Appellees refer vaguely to the

elements of conversion, but they wholly fail to plead facts that even suggest3

the Illinois defendants had any reason to believe Plaintiffs had any possible

claim to ownership of the headstone or otherwise in any way acted in a

wrongful or unlawful manner when Lensing purchased the stone from its

only apparent owner, Holly Ragan. Id. Specifically, Appellees make no

Significantly, Plaintiffs omit any mention of two necessary elements of their3

conversion claim: demand for return of the property and refusal. See Khorshid, Inc. v.Christian, 257 S.W.3d 748, 759 (Tex. App.--Dallas 2008, no pet.) (listing elements).

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allegation even that Appellants had ever heard of Appellees, much less that

Appellants had any way of knowing that Appellees would assert some

claimed interest in the headstone. Id. As Appellees allege, Lensing

[purchased] the grave marker from Ragan . . . . CR 114.

At most, Plaintiffs allege that Lensing, or Heritage before him, should

have known that Ragan did not own the headstone because it was inscribed with

the name, Lee Harvey Oswald. CR 118. The argument, even for what

Appellees claim it to be, makes no sense; in fact, Appellees themselves are

now claiming to own the stone despite it being inscribed with the Oswald

name. But, even Plaintiffs do not argue that the presence of the name Lee

Harvey Oswald should have led Appellants to conclude that two unknown

persons, named David Card and Cleo Lowe, were the headstones real

owners.

Instead, Plaintiffs claim that they made demand on Lensing for return

of the grave marker, and that Lensing refused. CR 119 20. It is clear from

their allegations that Appellees made this demand on Lensing in Illinois,

sometime in or after May 2011, when Appellees claim they first became aware

that Lensing possessed the headstone in an Illinois museum. CR 118 18;

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see also RR 12-16. Accordingly, even by Appellees own assertions, any

alleged conversion could have been committed by the Appellants only in

Illinois when they refused to accede to Appellees demands to give them the

headstone. Dolenz v. Nat'l Bank of Texas at Fort Worth, 649 S.W.2d 368, 371

(Tex. App.--Fort Worth 1983, writ ref'd n.r.e.) (If, upon being advised by

appellee that it had appellant's property, appellant had made demand for the

return of it, and that demand had been refused, then, and only then, would

there have been a conversion of appellant's property.); Pervasive Software

Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 230 (5th Cir. 2012) ( The mere

fact that the converted item originated in Texas is not sufficient to create

personal jurisdiction under the long-arm statute; the item must be in Texas

when the conversion actually occurs.).4

Plaintiffs likewise claim, without alleging actual supporting facts, that

the Illinois defendants committed theft in Texas by acting with the express

It was certainly reasonable for Lensing to believe Ragan to be the rightful4

owner of the headstone. In addition to her own statements and claim of ownership and

the probate documents, Ragan actually possessed the item. And possession is thestrongest indicia of ownership of personal property. Cont'l Credit Corp. v. Norman,303 S.W.2d 449, 454 (Tex. Civ. App.--San Antonio 1957, writ ref'd n.r.e.) (citing Gay v.Hardeman, 31 Tex. 245, 251); accord In re Rollings, 451 Fed. Appx 340, 346 (5th Cir.2011) (Under Texas law, [o]ne in possession (or control) of property is presumed to bethe owner of it.).

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to do with their attempt to subject Appellants to the personal jurisdiction of

the Texas trial court. CR 328-29. In that response, Appellees were arguing

that Appellants had waived their special appearance by seeking discovery

related to the conspiracy allegations. The discovery constituted waiver,

Appellees argued, because there was supposedly no relationship whatsoever

between Appellees conspiracy allegations and the jurisdictional question. Id.

Appellees, therefore, are bound by their prior judicial admission that their

conspiracy claim does not relate to their jurisdictional allegations, and they

are precluded from now taking an opposite position and arguing that the

conspiracy claims do support jurisdiction. See Sherman v. Merit Office

Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.Dallas 2003, pet. denied)

(discussing elements of judicial admission and noting that a judicial

admission . . . bars the admitting party from disputing it). Moreover, the5

law is clear that allegations of a civil conspiracy are not sufficient to confer

personal jurisdiction over a nonresident. Rapaglia v. Lugo, 372 S.W.3d 286,

290 (Tex. App.Dallas 2012, no pet.) (citing Nat'l Indus. Sand Ass'n v.

Gibson, 897 S.W.2d 769, 773 (Tex. 1995) (orig. proceeding)).

Incidentally, Appellees expressly withdrew their waiver argument on the5

record during the special appearance hearing. RR at 5 (line 23) - 6 (line 3).

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Plaintiffs-Appellees have not set forth sufficient factual allegations that

Appellants committed any tort in Texas to confer jurisdiction, or the actual

facts they did plead regarding the matter, even if true, are insufficient as a

matter of law to subject Appellants to personal jurisdiction.

c. Plaintiffs-Appellees Third Allegation

Plaintiffs-Appellees Third Allegation appears to be designed to support

their argument as to general jurisdiction. The allegation, that Appellants

purchased certain things from Texas, is legally insufficient to subject

Appellants to personal jurisdiction. General jurisdiction, of course, requires

a showing that the defendant conducted substantial activities within the

forum, a more demanding minimum contacts analysis than for specific

jurisdiction. BMC Software Belgium, 83 S.W.3d at 797 (citing CSR Ltd. v.

Link, 925 S.W.2d 591, 595 (Tex. 1996)).

Probably the most-cited case on the subject of general jurisdiction is

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct.

1868, 80 L. Ed. 2d 404 (1984). In Helicopteros, the plaintiff sued a foreign

defendant in Texas. In support of its claim of general jurisdiction, the plaintiff

demonstrated that the defendant, Helicopteros, indeed had had a significant

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number of contacts with Texas. In fact, over an eight-year period,

Helicopteros had purchased millions of dollars of helicopters (80% of its entire

fleet) and related parts from Bell Helicopter in Fort Worth. 466 U.S. at 411,

104 S. Ct. at 1870. It had sent its pilots to Texas for training and to pick up

aircraft it had purchased. Id. It sent its management and maintenance

personnel on numerous occasions to Texas for plant familiarization and

technical consultation. Id. And it had received millions of dollars in

payments from a Houston bank. Id. Yet despite all that, the U.S. Supreme

Court held that Helicopteros simply did not have sufficient contacts with

Texas to subject itself to the general jurisdiction of Texas courts. Plaintiffs,

here, of course, do not allege contacts by the Illinois defendants coming even

close to the contacts held to be insufficient in Helicopteros.

In Helicopteros, the Court focused on the fact that Helicopteros did not

have a place of business in Texas and never has been licensed to do business

in the State. 466 U.S. at 416, 104 S. Ct. at 1873. In fact, Texas courts often

consider the lack of an office, agent, or the solicitation of business as

determinative to the exercise of general jurisdiction. Ashdon, Inc. v. Gary

Brown & Associates, Inc., 260 S.W.3d 101, 113 (Tex. App.Houston [1st Dist.]

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2008, no pet.) (emphasis added); see also James v. Ill. Cent. R.R., 965 S.W.2d

594, 598 n. 1 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (no general

jurisdiction where defendant never maintained office or other place of

business in Texas and had no agents in Texas); Int'l Turbine Serv., Inc. v.

Lovitt, 881 S.W.2d 805, 810 (Tex. App.--Fort Worth 1994, writ denied) (no

general jurisdiction where defendant did not have office, employee, or market

in Texas); Clark v. Noyes, 871 S.W.2d 508, 51820 (Tex. App.--Dallas 1994, no

writ) (no general jurisdiction where defendant had no business interests in

Texas); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 63435 (Tex.

App.--Dallas 1993, writ denied) (no general jurisdiction where defendant did

not maintain place of business in Texas, had no employees from Texas, and

did not solicit business in Texas). Here, of course, Plaintiffs have not alleged

that the Illinois defendants maintained any agent, offices, or employees in

Texas or that they solicited business from Texas residents.

The Supreme Court in Helicopteros further explained that the law is

clear that purchases and related trips, standing alone, are not a sufficient

basis for a State's assertion of jurisdiction. Helicopteros, 466 U.S. at 417, 104

S. Ct. at 1874 (citing Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516,

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43 S.Ct. 170, 67 L.Ed. 372 (1923) (Brandeis, J., for a unanimous tribunal)). In

other words, the Court continued, mere purchases, even if occurring at

regular intervals, are not enough to warrant a State's assertion of in

personam jurisdiction over a nonresident corporation in a cause of action not

related to those purchase transactions. Helicopteros, 466 U.S. at 418, 104 S.

Ct. at 1874 (emphasis added). See also BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 798 (Tex. 2002) (BMCB's purchasing products

from BMCS in Texas to distribute in Europe is not enough to establish general

jurisdiction. . . . BMCB's unrelated purchases in Texas from BMCS are not the

type of contacts that justify a finding that BMCB could have reasonably

anticipate[d] being haled into court here.) (citing Helicopteros and others).

As the Texas Supreme Court has explained it, buying things from Texas

residents simply is not enough of a connection to this state for a Texas court

to exercise general jurisdiction over a non-resident:

ATCC contends that its purchases from Texasvendors do not provide evidence warranting theexercise of general jurisdiction over ATCC. We

agree. In Helicopteros Nacionales de Colombia,S.A. v. Hall, 466 U.S. 408, 418, 104 S.Ct. 1868, 80L.Ed.2d 404 (1984), the United States Supreme Courtstated that mere purchases, even if occurring atregular intervals, are not enough to warrant a State's

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assertion of in personam jurisdiction over anonresident corporation in a cause of action notrelated to those purchase transactions. And the FifthCircuit has stated, purchases and trips related

thereto, even if they occur regularly, are not, standingalone, a sufficient basis for the assertion ofjurisdiction. Dalton v. R & W Marine, Inc., 897 F.2d1359, 1362 n. 3 (5th Cir.1990).

Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 808 (Tex. 2002)

(emphasis added).

For these reasons, Plaintiffs-Appellees allegations that Appellants

acquired things from Texas simply does not state a factual basis to support


d. Plaintiffs-Appellees Fourth Allegation

Plaintiffs-Appellees Fourth Allegation, that in connection to one of

Lensings purchases from Heritage, he executed a form contract containing

a choice of jurisdiction clause (CR 116, 189 14) is likewise insufficient.

Plaintiffs-Appellees again conflate the concepts of general and specific

jurisdiction. As with the contract between Ragan and Lensing, Plaintiffs-

Appellees were not parties to the purchase agreement between Lensing and

Heritage. With regard to that latter transaction, should Lensing have

defaulted, Heritage may have been able to use the jurisdictional language in

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Appellants are no more subject to general jurisdiction in Texas, able to

be sued by complete strangers for completely unrelated matters, than is every

lawyer who has ever conducted a WestLaw search subject to general

jurisdiction in the State of Minnesota due to the fact that Wests online user

agreement contains a forum selection clause. See CR Supp. No. 2 at 40. The

provision simply in no way supports a claim as to personal jurisdiction over

Appellants in a lawsuit brought by Appellees.

3. Even if any of the pleaded facts were to be considered sufficienton their face, Appellants have fully negated them, and theevidence is legally insufficient, or alternatively, factuallyinsufficient to support any implied findings conferring

jurisdiction

Of the four specific allegations discussed above, the only one that is

disputed and the only one that arguably may be sufficient on its face to state

a basis for personal jurisdiction is Appellees contention that Appellants

committed torts against them in Texas. As discussed above, Appellees claim

that any such tort was committed in Texas is wholly conclusory and is not

supported by any actual facts. Nonetheless, if the bare allegation were to be

considered sufficient to allege a ground sufficient to support personal

jurisdiction, the claim is not supported by legally or factually sufficient

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evidence, and Appellants have disproved it. See CR 246-48; RR 10-16; RR Ex.

2 (Admissions 1-6); RR Ex. 6.

As discussed above, Appellants dispute that they committed any tort

against Appellees, but, more importantly for the present purposes, they

dispute that they committed any such tort in Texas. CR 246-48. Appellants

met their burden to negate Appellees contention that they committed, or

even could have committed, any alleged tort in Texas, and any implied

finding that Appellants committed any tort in Texas is not supported by

legally sufficient, or alternatively by factually sufficient, evidence.

As argued above, for Defendants to have committed the alleged torts of

conversion or theft as against Appellees in Texas by purchasing the headstone

from Ragan, Appellants would had to have known, when Lensing was in

Texas, that they were depriving Appellees of the item without Appellees

effective consent. Yet Appellants have proven and it is in fact undisputed that

Appellants did not know of Appellees existence, much less of any claim they

may have to ownership of the headstone, when Lensing briefly visited Texas

to pick up the item. It was not until long after Lensings trip to Texas that

Appellees informed Lensing that they were making a claim to the headstone.

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Only at that time could Appellants possibly have committed a tort by refusing

to return the item, and it is proven and undisputed that that refusal occurred

only in Illinois. See Dolenz, 649 S.W.2d at 371; Pervasive Software Inc., 688

F.3d at 230. And without specific intent to deprive the owner of value, there

can be no theft. Ex parte Smith, 645 S.W.2d at 311.

In fact, when Appellee David Card first wrote to Mr. Lensing, making

his case for why Lensing should give him the headstone, Card effectively

admitted that Lensing was unaware that anyone other than Holly Ragan may

claim an interest in the item. See RR, Defendants Exhibit 6. Card stated,

You may have thought you were acquiring this item lawfully and in good

faith from Holly Ragan. But in truth, Holly misled you . . . . Id. He later

added, I lament that you have been deceived . . . . Id. When testifying at

the special appearance hearing, Card admitted, in essence, that Appellees

have no evidence that Lensing had ever heard of them until long after Lensing

acquired the headstone. RR at 11-13; 15 (line 16)-16(line 5). Card also

recounted how he, his present attorney, and an Illinois attorney all made

demands on Lensing, in Illinois, to give them the headstone well after the

acquisition was complete. RR at 11-16.

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Appellants believe they have accurately identified Appellees only

actual factual claims that could possibly support a finding of personal

jurisdiction over Appellants, but, out of caution, to the extent Appellees may

try to point to other facts or their wholly conclusory claims in their pleading,

such as defendants established sufficient contacts with Texas (CR 116) or

that they purposely availed themselves of the privileges of conducting

activities in Texas (CR 115) to support their arguments, Appellants have

properly negated the claims and there is legally and factually insufficient

evidence in the record to support them. See Appellants Verified Special

Appearance, Verified Supplement to Special Appearance, and the affidavits

and evidence in support thereof. CR 20-34, 230-36, 239-64, and RR 11-16

(including Defendants Exhibits 1-8).

In the affidavits they submitted in support of their special appearance,

Appellants set forth in detail the limited extent of their contacts with Texas.

Lensing has been to Texas only four times in his life, and Lefthander

Marketing, Inc., has never had any contacts with Texas whatsoever. Neither

Appellant has ever maintained any agent, offices, or employees in Texas nor

have they ever solicited business from Texas residents. These facts are in

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evidence and are uncontested. Lefthander Marketing, Inc., simply has never

had any contact with Texas and there is no evidence whatsoever to support

personal jurisdiction over it. Wayne Lensings contacts have been so minimal,

that he could not possibly have foreseen being haled into Texas by complete

strangers. See CR 246.

The only evidence presented with regard to the Special Appearance

compels but one conclusion, that Appellants are not subject to being sued by

Appellees in Texas, and Appellees claims should be dismissed for lack of


4. Conclusion of Argument Regarding Issue No. 1

Appellees have not shown that Appellants have had minimum contacts

with Texas to give rise either to specific or general jurisdiction. Appellees

were not parties to the subject transaction, and there is, therefore, no specific

jurisdiction. The only allegations relating to general jurisdiction are that

Lensing made mere purchases from Texas, which plainly is not enough.

Under any analysis, these Appellants contacts with Texas are not sufficient

to allow these plaintiffs to hale them into court here. As the Supreme Court

has made clear, foreseeability is an important consideration in deciding

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whether the nonresident defendant has purposefully established minimum

contacts with the forum state. BMC Software Belgium, N.V., 83 S.W.3d at

795. Here, there can be no question but that Wayne Lensings sole act of

purchasing the subject headstone from Holly Ragan could not possibly have

made a lawsuit against him and Lefthander Marketing, Inc., in Texas, brought

by two complete strangers, foreseeable. Holly Ragan happened to live in

Texas, but, even assuming, as Appellees contend, that a purchaser such as

Lensing should have been suspicious of her claimed ownership of the

headstone, there is no evidence that he could possibly have known that the

purported rightful owners would also later happen to hale from Texas as

opposed to any other jurisdiction.

Appellants have not had sufficient minimum contacts with Texas to

confer personal jurisdiction, and Appellees claims against them should be dismissed.

D. Argument regarding Issue No. 2

Under the facts of this case, the trial courts exerciseof personal jurisdiction over Appellants violatestraditional notions of fair play and substantial

justice.

To subject a nonresident defendant to personal jurisdiction and satisfy

the demands of due process, it must be established that the nonresident

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defendant purposely established minimum contacts with the forum state.

Even if the nonresident defendant has purposely established minimum

contacts with the forum state, the exercise of jurisdiction may not be fair and

reasonable under the facts in a particular case. Guardian Royal Exch. Assur.,

Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991). [T]he

contacts are evaluated in light of other factors to determine whether the

assertion of personal jurisdiction comports with fair play and substantial

justice. Id. (citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102,

11315, 107 S.Ct. 1026, 103334, 94 L.Ed.2d 92, 105 (1987); Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528,

54243 (1985)).

Here, Appellants contacts with Texas are nearly nonexistent. They do

not market to or advertise in Texas. They do not maintain offices, employees,

or agents in Texas. Lensing has been to Texas only four times in his life, and

Lefthander has never had any contact with Texas. Appellants engaged in no

conduct intentionally directed toward Texas or designed to avail themselves

of the benefits of the laws of Texas. CR 245-46. Wayne Lensing received a call

in Illinois from Holly Ragan. That she happened to be calling from Texas was

45


54/98

a random, isolated occurrence and of no consequence to Lensing. She offered

to sell an item, represented to be the items only lawful owner, provided

background information to support the claim, and negotiated a deal with

Lensing, all while Lensing was in Illinois. Lensing flew to Texas to pick up

the item, but he would just as well have flown to Montana if that had been

where she happened to be. CR 246.

Perhaps most importantly, it is undisputed that when Lensing

purchased the subject headstone from Holly Ragan, he was doing nothing

illegal, unlawful, wrongful, or otherwise improper in any way. There simply

exists no evidence that Appellants had any notion that Lensing was not

simply buying an item from its only rightful owner. Appellees real

complaint in this lawsuit is their assertion that Holly Ragan converted the

headstone for her own benefit, and deceived Lensing when she sold it to him

under false pretenses. See, e.g., RR Exhibit 6 (Cards I lament that you have

been deceived letter). It would offend traditional notions of fair play and

substantial justice to require Wayne Lensing to travel to Texas to defend

himself against the claims of unknown strangers, bringing unforeseeable

claims against him, based on the allegedly wrongful conduct of a third party.

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55/98

For this reason, if nothing else, the trial courts exercise of personal

jurisdiction over Appellants violates Appellants rights to due process and

should be reversed.

CONCLUSION AND PRAYER FOR RELIEF

For the reasons stated above, the trial court erred by denying

Appellants special appearance. Appellants do not have minimum contacts

with Texas to justify the assertion of personal jurisdiction over them. And

under these facts, requiring Appellants to come to Texas basically to answer

for the alleged wrongdoing of Holly Ragan would offend traditional notions

of fair play and substantial justice in violation of Appellants due process

rights afforded them by the Constitution of the United States. Appellants,

therefore, respectfully ask that the Court of Appeals reverse the trial courts

order denying their special appearance and dismiss all claims in this lawsuit

against them for lack of personal jurisdiction.

Respectfully submitted,

/s/Kenneth E. East

Kenneth E. EastState Bar No: 00790622FOSTER & EAST9001 Airport Freeway, Suite 675Fort Worth, Texas 76180

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Phone: (817) 788-1111Fax: (817) 485-2836

ATTORNEY FOR DEFENDANTS

WAYNE LENSING and LEFTHANDERMARKETING, INC.

CERTIFICATE OF COMPLIANCE

Based on the word count provided by the word processing programused to create this brief, WordPerfect X5, this brief contains 9,193 words,excluding the portions of the brief exempt from the word count under TexasRule of Appellate Procedure 9.4(i)(1).

/s/Kenneth E. EastKenneth E. East

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrumenthas been served on all parties or their counsel of record on this day, May 8,2013, as follows:

Wm. NICHOLAS MANOUSOSState Bar No. 240025233812 N. Hall StreetDallas, Texas 75219214-740-1711 (Telephone)214-740-1744 (Fax)ATTORNEY FOR APPELLEESvia fax and email

D. Lee Thomas, Jr.State Bar No. 19847500507 West Central Ave.Fort Worth, Texas 76106817-625-8866817-625-8950ATTORNEY FOR DEFENDANTHOLLY RAGAN

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Samuel E. JoynerTexas Bar No. 24036865RossJoyner1700 Pacific Avenue, Suite 3750

Dallas, Texas 75201TELEPHONE: (214) 382-0894FACSIMILE: (972) 661-9401ATTORNEYS FOR HERITAGEAUCTIONS, INC.

/s/Kenneth E. EastKenneth E. East

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NO. 05-13-00353-CV

IN THE FIFTH COURT OF APPEALSDALLAS, TEXAS

WAYNE LENSING and LEFTHANDER MARKETING, INC.

Appellants

v.

DAVID CARD and CLEO LOWE

Appellees

APPELLANTS APPENDIX

Tab Description Clerks Record Page Nos.

A Order Denying Defendants SpecialAppearance

CR 437

B Courts letter, declining to issue findingsof fact and conclusions of law

CR Supp. No. 1 at 4

C Affidavit of Wayne Lensing in Support ofSpecial Appearance

CR 239-57

D Plaintiffs Second Amended Petition and

Request for Declaratory Relief (withoutexhibits)

CR 112-26

50


59/98

EXHIBIT A

Order Denying Defendants' Special Appearance


60/98

CAUSE-NO. DC-12-06631

DAVID CARD and CLEO LOWE, Plaintiffs,

v. HOLLY RAGAN, WAYNE LENSING, and LEFTHANDER MARKETING, INC., d/b/a HISTORIC AUTO ATTRACTIONS,

Defendants.

IN THE DISTRICT COURT

298th JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

ORDER DENYING DEFENDANTS' SPECIALAPPEARANCEOn November 2012, the Court heard and considered Defendants, Wayne Len5ing"s and

Lefthander Marketing, Inc.' s., Special Appearance. After considering the. pleadings, affidavits, . ~ I f ' \evidence presented; and arguments of counsel, the Court hereby l i l B E i e - 1 ! f t & l i d a 8 m ( . : i i r : l : t ~ ~ . : - t 4 ./

= = = : : : ; ; : = ; : : : ~ ~ k e t ~ ~ ; ~ ~ ! T k f f ~ ~ - c ; v .ACCORDINGLY, IT IS HEREBY ORDERED, that Defendants, Wayne Lensing's andLefthander Marketing: Inc.'s., Special Appearance is DEl\'lED. SIGNED on this the 4 day ofMarch, 2013.

437


61/98

EXHIBITB

Court's letter, declining to issuefindings of fact and conclusions of law


62/98

EMilY G. TOBOlOWSKYJUDGE, 298TH DISTRICT COURT

DAllAS COUNTY, TEXAS.Carolyn Dupree-BrownCourt Coordinator

TO:

FROM:

March 12, 2013Kenneth EastNick ManousosSamuel JoynerLee ThomasJudge Emily G. Tobolowsky

817-485-2836 (FAX)2 1 4 - 7 4 0 ~ 1 7 4 4 (FAX)972-661-9401 (FAX)817-625-8950 (FAX}

Marcey PoeckesCourt Reporter

Re: Cause No. dc-12-06631"-M; David Card and Cleo Lowe v. Holly Ragan at alDear Counsel:

I have received Wayne Lensing and Lefthander Marketing's Request for Findingsof Fact and Conclusions of Law in this case. My research indicates that while Findingsand Conclusions may be helpful in an appeal of a denial of a special appearance, theyare not required. If counsel is aware of any authority that requires the making ofFindings and Conclusions in this instance, then please provide it to me as soon aspossible. If Counsel determines that the making of Findings and Conclusions isdiscretionary, then I decline to make them.

T h ~ n ~ youTr /1l d J J ~ - J J ~ J

E ~ ~ T o b o l o w s k y

EXHIBIT18 4


63/98

EXHIBITC

Mfidavit of Wayne Lensing in Support of Special Appearance


64/98

( CAUSE NO. DC-12-06631

DAVID CARD an d CLEO LOWE,Plaintiffs,

IN THE DISTRICT COURT

v. M-298th JUDICIAL DISTRICTHOLLY RAGAN, WAYNE LENSING, and LEFTHANDER MARKETING, INC., d/bfa HISTORIC AUTO AITRACTIONS,Defendants. DALLAS COUNlY, TEXAS

AmDAVIT OF WAYNE LENSING IN SUPPORT OFTH E SPECIAL APPEARANCE OF DEFENDANTS

WAYNE LENSING and LEFTHANDER MARKETING, INC.SfATEOF ILLINOISCOUNTY OF WINNEBAGO

BEFORE ME, the undersigned authority, personally appeared WAYNELENSING, who, being by me duly sworn, deposed as follows:

"My name is Wayne Lensing. I am more than 21 years of age. I am of soundmind, capable of making this affidavit, an d I have personal knowledge _of the factsherein stated, which are true and correct. I am an individual defendant in the above-styled action. I am also the president and sole director of defendant LefthanderM a r ~ t i n g , Inc., and have been since its incorporation.

"My primary occupation is building race car chassisand parts, which Ihave been.doing for-over twenty years, following my earlier careers as a race car driver and as anassembly line worker for Chrysler. As an offshoot of my race car businesses andinterests, I have personally had the opportunity to acquire a number of unique and

i n t e r e s ~ n g automobiles, many of which have historic significance. My collectionEXHIBIT

AfFIDAVIT OF WA YN!i l..F.NSJNG IN SUPPORTOF SrECIAL AI"Pf..ARAM...l: I) I PAGElEXHIBIT 1-

l! c ~Di 239


65/98

includes automobiles that span from 19th century horse drawn carriages to legendaryrace cars-from Richard Petty's 1960 Plymouth Stock Car Danica Patrick'sRahai-Letterman Racing 2005 IRL lndyCar-to cars used in television and movies,

i r i ~ l u d i n g one of the 'Batmobiles,' to the Presidential Limousines that carried PresidentsHarry S. Truman, Lyndon B. johnson, and Ronald Reagan. My interest in historicartifacts grew from automobiles to other items, and] now have a significant coiJectionof historic artifacts,. particularly related to world leaders and U.S. presidents, includingseveral complete rooms of furniture used to furnish the White House at different pointsin its history. Jalso have collections of movie and television sets and artifacts as weJl asa collection of NASA artifacts. My colleetion of presidential memorabilia includesseveral items related to Presidents Abraham Lincoln and john F. Kennedy, includingitems relating to their respective s ~ a s s i n a t i o n s . AU of these items I have always owned,and continue to own, personaJiy.

"As my personal collection of such coiJectible automobiles and other artifactsgrew, it got to the point that I needed a better way and place to s t o r ~ them, and Ibelieved that the collection was interesting enough that the public may enjoy viewingit. So, in 2001, I opened a museum, now managed by Lefthander Marketing, Inc. The. .museum operates under the assumed name, Historic Auto Attractions. Jpersonally ownthe contents of the museum (either in my ow n name or as trustee of a revocable trust).Lefthander Marketing, Jnc., which was incorporated on January 14, 2003, manages themuseum, but owns none of its contents.

AFFIDA VITOf WAYNF. LF.NSINC IN StJJPORT OFSPIOAL APrP.ARANC."F. PACF.2

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( "Approximately in early 2010, I was contacted in Illinois by telephone by a

woman, who identified herself to me as Holly Ragan. Ms. Ragan explained to me thatsh e had inherited the original headstone that had marked the grave of Lee HarveyOswald (the 'Headstone'). She explained that it was the stone that was on Oswa1d;sgrave in the Shannon Rose Hill Memorial Park in Fort Worth, Tarrant.County, Texas,

from Oswald's original burial in 1963, until the stone was stolen four years later. Ms.Ragan explained that after the Headstone was recovered, not too long after its theft, itwas returned to Lee Harvey Oswald's mother, Marguerite Oswald, who placed it instorage under her house in Fort Worth, Tarrant County.

"Ms. Ragan explained that relatives of hers purchased that house afterMarguerite Oswa1d passed away. Sometime thereafter, the Headstone was discoveredunder the house. According to Ms. Ragan, family members later gave i t to herhusband's parents, who later gave. i t to her husband, Johnny Ragan.- After Johnny

Ragan's death in 2008, according to Ms. Ragan, the Headstone passed to her, as herhusband's heir, through a probate proceeding in Tarrant County, Texas.

u After a few more telephone calls with Ms. Ragan (all while I was in Jllinois),during which I further questioned her about the history of the piece she wanted to sellto me, and after examining documents she had faxed to me in Illinois, including theSmall Estate Affidavit in her husband, johnny Ragan's, probate case, and the orderapproving same, and after she had assured me that she in fact lawfully owned the

s ~ b j e c t grave marker and was authQri7..ed to sell it, I decided to accept her offer andagreed to purchase the Headstone. (Plaintiffs have made much ad o at times about the

AFfiOA VIT Of WAYNF.lF.NSINC IN SUPPORTOFSI'EOA I. APPF.ARANCF.

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67/98

( fact that Jmay have referred to the small estate affidavit as a 'will;' I'm not a lawyer andmy point has only ever been that I received and reviewed documents indicating that theHeadstone had passed to Ms. Ragan through an ':lfficial probate court proceeding.) Acopy of the Small Estate A f f i d ~ r v i f and-Order approving s a i n ~ , which Ms. Raganpresented me as evidence ofher ownership of and right to sell the subject grave markerare auached hereto as Exhibit A. I am the custodian of the records of those three pagesof records, which are kept by me in the regular course of my business, and it was theregular practice of my business for an employee or representative with knowledge ofthe act, event, condition, opinion, or diagnosis, recorded to make the rec;ord or totransmit infonnation thereof to be included in such record; and the record was made ator near the time or e a s o n ~ b l y soon thereafter. The records attached hereto are the

o r i g i ~ a l or exact duplicates of the originaL.,I then flew my personal plane (I am a licensed pilot) to Fort Worth's Spinks

Airport , located in Fort Worth, Tarrant County, Texas. I met Ms. Ragan at the FortW o r t ~ airport. She had brought the Headstone to the airport in her car. I removed theheadstone from her carand p1aced it into my plane. I flew back home to Illinois the verynext day after spending one night in a Fort Worth motel. (I never left Fort Worth,Tarrant County, until flying home the next day.) That was the orie and only time leverwent to the State of Texas r e l a ~ e d in any way whatsoever to the Headstone or mypurchase thereof.

"Contrary to what I understand the plaintiffs may have ~ o w aJJeged in anamended petition, Heritage Auctions played no role in the transaction between Ho11y

AFFIDA VlTOF WAYNF. LF.NSINC IN 5uPf'ORTOF 5PF.CIAI. APJF.ARI\NCH

242


68/98

( Ragan and me involving the Headstone, other than, she told me, Heritage suggested toher to contact me because they apparently knew generally of my museum's existence.Heritage's Tom Slater made one phone call to me telling m_e they had given thatinformatio_n to Ms. Ragan. I had.no other conversations with Heritage at any timeregarding the Headstone or the. transa.ction, except on one occasion a Heritagerepresentative asked me what h a p p e n ~ d and, long after the transaction withMs. Ragan was completed, I confirmed that I had indeed purchased the stone from her.

"Heritage, otherwise, had nothing whatsoever to do with my purchase of thestone from Ms. ~ g a n and received no commission or an y other benefit, payment, orgratuity of any nature whatsoever, directly, Indirectly, or otherwise, associatedtherewi_th. Also, contrary to P l a i n t i f f s ~ allegations, I never went to the City of Dallas orDallas County the day J i c k ~ up the Headstone or on any other day. to view theHeadstone or for any other purpose in any way whatsoever reJated to the Headstone

or my purchase of it.HNeither Leflhander Marketing, Inc., nor !.conspired with nor were we 'aided'

or ' a b e t t e d ~ by Heritage with respect to any actions alleged by P1aintiffs. NeitherLefthander nor I have ever had any sort of meeting of the minds with Heritage aboutany issue alleged in this lawsuit. Neither Lefthander nor I have .ever been r:nembers ofany conspiracywhatsoever. Neither Lefthander nor Iever had any plan or scheme- withor acted in concert with Heritage to commit any unlawful act or to commit any lawfulact by unlawful means and deny in fact ever doing such things. Heritage simply playedno role in my negotiation and transaction with Ms. Ragan. There was no agreement,

AFfiDAVIT OF WAYNF.lF.NSING IN SUPI'ORT OF Srf.( ..,AI . AI'PF..ARANCF.

243


69/98

( express, implied, or otherwise involving Heritage. I have seen documents produced to.Plaintiffs by Heritage suggesting that Heritage may have internally initially desired toparticipate in .the sale of the stone, bu t I never knew of such things until I was shown the documents less than two weekS ago. Such possible plans-by Heritage obviously nevermaterialized, and Heritage simply did nothing more than give Ms. Ragan my name andsuggest she may want to try calling me. Once she did., I never once spoke orcommunicated with Heritage in any way regarding the matter until long after mypurchaseof thestone from Ragan was completed. Heritage never once suggested to meanything whatsoever about the authenticity of the stone or its ownership. I exploredthose.matters myself through my conversations with Ms. Ragan and my review of thedocuments she supplied me.

"After acquiring the Headstone, I loaned it to the Museum, ~ n s i s t e n t with mystandard practice as discussed above. The Headstone remains at the Museum to this

day.,.I was born and raised in Iowa. I moved to Jllinois in 1968, where I have Jived

and resided ever since. Icurrently Jive and reside in PopJar Grove, Illinois, where I haveJived and resided since 2006. J am not a resident or domiciliary of any other state, andI do not ow n or maintain any other homes. Lefthander Marketing. Inc., is an Jllinoiscorporation, is a resident of Illinois only, and it maintains its principal place of businessin Illinois. I do not live in Texas. I have never Jived or been employed in Texasr andneither Lefthander Marketing, Inc., no r Ihave ever had minimum contacts with theStateofTexas sufficient to justify the assertion of personal jurisdiction over either of us. That

AFfiDAVIT OF WAYNE I..F.NSINC IN SUPI'OKT Of SPf.CJAl. APf'f.A RANCF. PACF.6

244


70/98


71/98

( from Ms. Ragan or any other Texas resident. If fvfs. Ragan had happened to live inMontana, I would have flown lo Montana to retrieve the Headstone after she sought meout and convinced me to buy it, and, again, she sought me out in Illinois. She solicited

.me by c a i 1 I n g - m e - i n - I I I ~ n o l s . - r a 1 d noflook fOr her-or soHdt her In Tex-aS. -T did not seekany benefit, advantage, or profit by the happenstanceofMs. Ragan living in and callingme from Texas or fo11owing up that call with one transaction and one brief trip to Texasin order to pick up the Headstone.

~ ' I n other words, 1 e v e r ~ s o u g h t , desired, anticipated, or even imabTined in mywildest dreams, that I or Lefthander Marketing, Inc., could possibly have been.subjecting ourselves to the jurisdiction of a e x a s c o u r ~ by my.picking up my telephonein Illinois, receiving documents on my fax machine in Illinois, and making. on eeXtremely brief visit_. to Texas to pick up an item I had agreed to buy du e lo theaforementioned calls and documents I received in Illinois.

HI certainly committed no of any tort whatsoever in whoJe or in part_ in theState of Texas. I, to this day, fully believe that Iam the rightful owner of the Headstoneand am prepared to defend that belief. Nonetheless, even in the extremely unlikelyevent I am ever proved to be wrong about that, there is no question or disputewhatsoever that at the time 1 purchased the Headstone, 1 and Lefthander had noinformation or reason to believe anything other than the information provided me byMs. Ragan. When l received the Headstone land Lefthander had no idea that any otherparty, specifically n ~ l u d i n g Plaintiffs, were going to make a claim about ownership ofthe Headstone. I and Lefthander had never ever even heard of PJaintiffs and deny

AFFIIJAVfJOF WAYNE I..F.NSING IN SUPI'ORT OF Srf.OALAPPF.ARANCF. PACF.8

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72/98

knowingor having any reason whatsoever to believe that these complete strangers mayclaim to have some interest in the Headstone .I and Lefthander never had any idea thatPlaintiffs may claim to have retained some type of daim to ownershipof the Headstone

-a-ssociated-wilh-som.e-type ofanallegecf'ooihneritagreemeiit'-betweenfairilly me.m&ers, until being explained that they now aJJege same in their pleadings iri this case.

"'Specifically regarding Plaintiff's vague 'theft'. claim, I did not unlawfullyappropriate tJle Headstone, no r did I intend to deprive the owner of the Headstone of

.any ~ l u e . I paid the n l y ~ apparent (and, I believe and contend, then-rightful) ownerof the .Headstone for it after being asked by he r to buy it from her. Specifically

. regarding Plaintiffs' vague 'conversion' claim, neither Plaintiffever informed me ofeither of their claims of ownership of the Headstone nor make any claim to it, if ever(actuaiJy, I?avid Card and his Texas and Illinois a w y e r s appeared to be making claimsonly on behalf of DavidCard in his capacity as the executor

Documents

Wayne Lensing Appellants Brief