Ken Hoagland v. Bill Butcher, Kari Butcher, Butcher & Butcher, and OCTV Partners, LLC ( 2013 )

Reversed and Remanded and Plurality, Concurrring, and Dissenting
Opinions filed January 24, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-01074-CV
KEN HOAGLAND, Appellant
V.
BILL BUTCHER, KARI BUTCHER, BUTCHER & BUTCHER, AND OCTV
PARTNERS, LLC, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2010-58144
CONCURRING OPINION
In this special-appearance appeal, appellant/plaintiff Ken Hoagland
challenges the trial court’s order granting the special appearance filed by
appellees/defendants Bill Butcher, Kari Butcher, Butcher & Butcher, and OCTV
Partners, LLC (hereinafter collectively the “Butcher Parties”). For the reasons
discussed below, in their special appearances, the Butcher Parties did not present
evidence negating the assertion of personal jurisdiction based on specific
jurisdiction. Therefore, it is proper to reverse the trial court’s order and remand
this case for further proceedings.
In his petition, Hoagland alleges as follows:
The events which form the basis of this suit occurred in Harris County,
Texas.
Hoagland is a resident of Harris County, Texas.
Each of the Butcher Parties made written and oral misrepresentations of
material fact to Hoagland in email, telephone conversations, and in-person
meetings while Hoagland was in Harris County, Texas.
Bill and Kari Butcher made trips to Houston, Texas, as part of their effort to
mislead Hoagland, and attended meetings with Hoagland during which
fraudulent misrepresentations were made by each of the Butcher Parties to
Hoagland.
The Butcher Parties have sent money to Hoagland in accordance with an
enforceable oral agreement during calendar years 2009 and 2010 for services
performed by Hoagland, but eventually the Butcher Parties breached their
oral agreement with Hoagland by wrongfully refusing to continue paying
money to Hoagland for services rendered in the past and to be rendered in the
future.
In 2010, the Butcher Parties wrongfully appropriated Hoagland’s name,
likeness, and proprietary data, and they refuse to stop the unauthorized use of
the same. The wrongful appropriation includes the public display and use of
data within the State of Texas on public social messaging sites.
The Butcher Parties hired Hoagland to continue to act as Chairman of the
FairTax Campaign, to write virtually everything related to the campaign, as
well as to appear on local and national media outlets and to lead rallies.
Hoagland alleges breach of contract as his primary claim, and he also alleges
quantum meruit, fraudulent inducement, fraud, and wrongful appropriation of
Hoagland’s name and likeness. Though Hoagland makes various allegations and
asserts a variety of claims against the Butcher Parties, the gravamen of Hoagland’s
lawsuit is that he performed various services in support of the FairTax Campaign
2
under contract with the Butcher Parties, and the Butcher Parties have breached their
contract by not paying Hoagland for these services.1 According to his petition,
Hoagland performed these services in Texas, and the Butcher Parties sent money to
Hoagland under an enforceable oral agreement for services performed by Hoagland.
Contracting with a Texas resident and sending payments to Texas under a contract
do not alone support specific jurisdiction; however, a defendant may be subject to
personal jurisdiction under a specific-jurisdiction analysis if the defendant enters
into a contract that has a substantial connection with Texas, and thereby
purposefully directs his activities towards Texas. See Retamco Operating, Inc. v.
Republic Drilling Co., 278 S.W.3d 333, 338–41 (Tex. 2009); Zac Smith & Co. v.
Otis Elevator, Inc., 734 S.W.2d 662, 664–66 (Tex. 1987); Nance Int’l, Inc. v.
Oceanmaster Engineering PTE, Ltd., No. 01-11-00664-CV, 2012 WL 5381224, at
*5–8 (Nov. 1, 2012, no pet.) (mem. op.); Intercarga, S.A. v. Fritz Companies, Inc.,
No. 14-02-00297-CV, 2003 WL 21402583, at *7–8 (June 19, 2003, no pet.) (mem.
op.).
In support of their special appearances, the Butcher Parties submitted
affidavits from William Butcher, Kari Butcher, and Marc Kassoff. The only
evidence that arguably speaks to the location at which Hoagland performed his
services is the following statement contained in the affidavits of both Kari Butcher
and Marc Kassoff: “To the best of my knowledge and belief, all of the transactions
regarding OCTV Partners, LLC, have taken place in California.” Such statements
lack probative value and are legally insufficient, even absent objection by Hoagland
1
In conducting the personal-jurisdiction analysis in the case under review, this court does not
adjudicate the merits of Hoagland’s claims. See Bougie v. Technical Risks, Inc., No. 14-03-
01222-CV, 2004 WL 2902508, at *5 (Tex. App.—Houston [14th Dist.] Dec. 16, 2004, no pet.)
(mem. op.).
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in the trial court.2 See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Deacetis
v. Wiseman, No. 14-09-00308-CV, 2010 2731040, at *3 n.2 (Tex. App.—Houston
[14th Dist.] July 13, 2010, no pet.) (mem. op.). Thus, the Butcher Parties submitted
no competent evidence contradicting Hoagland’s allegation that he performed the
services in question in Texas.
In addition, the Butcher Parties submitted no legally sufficient evidence
contradicting Hoagland’s allegation that the Butcher Parties entered into an oral
agreement for the performance of services by Hoagland. None of the affidavits
contain statements contradicting this allegation as to Bill Butcher, Kari Butcher,3 or
OCTV Partners, LLC. Bill Butcher’s affidavit contains a denial that Butcher &
Butcher entered into any contracts with Hoagland regarding the transactions made
the basis of this suit, but this statement is conclusory and therefore legally
insufficient. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997);
B.Z.B., Inc. v. Clark, No. 14-11-00056-CV, 2012 WL 353783, at *3 (Tex. App.—
Houston [14th Dist.] Feb. 2, 2012, no pet.) (mem. op.).
The affidavits also contain (1) statements denying that some of the Butcher
Parties made representations to Hoagland in Texas regarding the business
transaction made the basis of this case, and (2) statements denying that some of the
Butcher Parties made any payments to Hoagland in Texas regarding that
transaction. These statements are conclusory and therefore legally insufficient. See
Wadewitz, 951 S.W.2d at 466; B.Z.B., Inc., 2012 WL 353783, at *3.
2
The two cases cited in the dissenting opinion do not hold to the contrary. See Grupo TMM,
S.A.B. v. Perez, 327 S.W.3d 357, 361 (Tex. App.—Houston [14th Dist.] 2010, pet. denied];
McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied).
3
In her affidavit, Kari Butcher states that she “did not sign any contracts with [Hoagland]
regarding the transactions made the basis of the captioned case in Texas.” Even if this statement
were not conclusory, it does not address oral contracts.
4
The Butcher Parties submitted three short affidavits, containing various
statements that are legally insufficient. The portions of these affidavits that are
legally sufficient do not suffice to satisfy the Butcher Parties’ burden of negating
the assertion of personal jurisdiction based on specific jurisdiction. See D.H. Blair
Investment Banking Corp., 97 S.W.3d 269, 277–79 (Tex. App.—Houston [14th
Dist.] 2002, pet. dism’d w.o.j.). Thus, the trial court erred in granting the Butcher
Parties’ special appearances, and the proper course is to reverse the trial court’s
order and remand for further proceedings.
For the foregoing reasons, I respectfully concur in the court’s judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Christopher, and Jamison. (Jamison, J., plurality)
(Christopher, J., dissenting).
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