Michele McKenzie Alford-Shaw, as Independent of the Estate of Robin Dale Shaw v. Judy Nicholson, Individually and as Personal Representative of the Estate of Misty Nicholson, and as Guardian and Next Friend of LBN, a Minor Dominic Riola and Karla Riola ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00387-CV
___________________________
MICHELE MCKENZIE ALFORD-SHAW, AS INDEPENDENT EXECUTRIX OF
THE ESTATE OF ROBIN DALE SHAW, DECEASED, Appellant
V.
JUDY NICHOLSON, INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF
THE ESTATE OF MISTY NICHOLSON, DECEASED, AND AS GUARDIAN AND
NEXT FRIEND OF LBN, A MINOR; DOMINIC RIOLA; AND KARLA RIOLA,
Appellees
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-306509-19
Before Kerr, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
After her husband was killed in Texas while piloting a plane, appellant Michele
McKenzie Alford-Shaw, who does not live in Texas, acted as the independent
executor for his estate in a Texas probate court. Later, the families of two passengers
who were also killed in the crash named Shaw, in her capacity as independent
executor, as a defendant in their negligence suit arising from the plane crash. Shaw
filed a special appearance and argued that because the estate administration had been
informally closed, she was no longer the independent executor when the negligence
suit was filed; thus, there were no minimum contacts supporting personal jurisdiction.
The trial court denied the special appearance. We conclude that the independent
administration was not informally closed because the facts and circumstances in the
probate court did not show that the estate’s assets had been distributed and, thus, that
further administration was not needed. And because the independent administration
was not closed, Shaw’s actions in the Texas probate court provided the requisite
minimum contacts for specific jurisdiction, and due process would not be offended by
a Texas trial court exercising personal jurisdiction over Shaw as a nonresident. Thus,
we affirm the trial court’s denial order.
I. BACKGROUND
On April 28, 2017, Robin Shaw, Misty Nicholson, and Scott Riola died in an
air-ambulance plane crash in Potter County, Texas. Robin was the pilot; Scott and
Misty were “medical personnel.” Robin’s will named his wife, Shaw, as his estate’s
2
independent executor and sole beneficiary. See Tex. Est. Code Ann. § 401.001(a). On
October 25, 2017, Shaw filed an application in the County Court of Callahan County,
Texas (the probate court), to admit Robin’s will to probate and sought letters
testamentary. See id. §§ 256.051, 301.051(1), 402.001. Even though she lived in Ohio,
Shaw filed the application in Callahan County because Robin had been “domiciled
and had a fixed place of residence” in Callahan County. See id. § 33.001(a)(1). The
probate court clerk posted a citation to all interested persons about the application
and stated that the application could be acted on no earlier than November 6, 2017.
See id. §§ 51.053, 303.001. On November 21, 2017, the probate court admitted
Robin’s will to probate, issued letters testamentary, and appointed Shaw as the
independent executor. See id. §§ 256.201, 306.001, 306.003, 402.001. Because Shaw
was an Ohio resident, she appointed a resident agent for service of process and filed
the appointment in the probate court. See id. § 304.003(3)(B).
On January 22, 2018, appellee Judy Nicholson (appearing individually, as the
personal representative of Misty’s estate, and as the guardian of Misty’s minor child)
filed a negligence suit against the owner of the plane—Rico Aviation, LLC—in Potter
County. She alleged that Rico Aviation negligently inspected and operated the plane
and that it was liable “under respondeat superior as the company had operational control
of the flight and is responsible for the actions of its agent, the pilot.” Robin, Misty,
and Scott had been employed by Rico Aviation; however, Rico Aviation did not
maintain workers’-compensation insurance.
3
On February 12, 2018, Shaw filed an affidavit in lieu of an inventory,
appraisement, and list of claims (the inventory affidavit). See id. § 309.056. In the
filing, she cited Section 309.056 of the Estates Code and stated in one sentence that
there were “no unpaid debts of the estate and . . . that there [were] no beneficiaries
under the Last Will and Testament of Robin . . . other than Affiant.” Shaw did not
file a closing report or a notice of estate closing, but she was not required to do so.
See id. §§ 405.005, 405.006, 405.012.
It is not clear what happened to Nicholson’s Potter County suit (Shaw states
that it was dismissed). In any event, Nicholson and Scott’s parents—appellees
Dominic and Karla Riola—filed suit in Tarrant County against Rico Aviation on
March 1, 2019, alleging that the plane’s maintenance had occurred in Tarrant County.
See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1). Rico Aviation answered and
filed a third-party petition, naming Greenpoint Aerospace and Fieldtech Avionics and
Instruments, Inc. as third-party defendants and alleging that Greenpoint and Fieldtech
had negligently performed the plane’s maintenance. See Tex. R. Civ. P. 38(a). On
April 12, 2019, Nicholson and the Riolas amended their petition to add negligence
claims against Greenpoint and Fieldtech for their alleged negligent actions
surrounding the plane’s maintenance.1
1
Greenpoint and Fieldtech were later granted leave to designate the
manufacturer of the plane’s autopilot system—Honeywell Aerospace—as a
responsible third party. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004.
4
In June 2019, Shaw moved from Ohio to Kentucky.
On September 3, 2020, after discovery concluded and one month before the
scheduled trial on Nicholson and the Riolas’ negligence suit, Nicholson sought leave
to amend the petition to add claims against Shaw as the independent executor of
Robin’s estate.2 See Tex. Est. Code Ann. § 403.059. Nicholson alleged that discovery
had revealed that “a proximate cause of the crash was the negligence of pilot [Robin]
Shaw” and that she had discovered Rico Aviation’s insurance carrier would not cover
claims against Rico Aviation asserted by its employees. On September 16, 2020,
Nicholson filed a notice of claim in the probate court based on the negligence suit,
and the probate clerk notified Shaw and Shaw’s resident agent.3 See id. §§ 355.002,
355.065, 403.055. On September 17, 2020, the Tarrant County trial court granted
leave to amend the petition; Nicholson and the Riolas filed the amended petition that
same day. In the amended petition, Nicholson and the Riolas alleged that all parties
were Texas residents or doing business in Texas. Specifically as to Shaw, Nicholson
and the Riolas alleged that Shaw was Robin’s estate’s independent executor and that
she had appointed a Texas resident agent for service of process.
Shaw filed a verified special appearance, attaching her September 9, 2020
declaration and her October 17, 2020 “jurisdictional declaration.” See Tex. R. Civ.
2
Although the motion to amend was entitled “Plaintiffs’ Motion for Leave to
File Second Amended Petition,” the Riolas were not mentioned as movants.
3
The Riolas did not join in the notice of claim.
5
P. 120a.1. Shaw averred that because all the debts and claims of Robin’s estate had
been paid and all estate property distributed, the estate had been closed “as a matter
of law”—ending her authority as the independent executor and estate
representative—in February 2018, which was before Nicholson and the Riolas had
named Shaw as a defendant. She asserted, therefore, that because she was a Kentucky
resident, a Texas court could not exercise personal jurisdiction over her. Nicholson
responded4 and asserted that because Shaw had taken no demonstrable action
triggering a closing of the independent administration and had provided no
competent evidence that she had informally closed it, she did not conclusively prove
that the estate had been closed; thus, she could be brought into a Texas court based
on her actions in Texas as the independent executor of Robin’s estate. Nicholson also
contended that Shaw’s affidavit was statutorily deficient and could not serve to
informally close the independent administration. The trial court denied Shaw’s special
appearance, and she filed this accelerated, interlocutory appeal. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(7).
II. LEGAL STANDARDS GOVERNING
PERSONAL-JURISDICTION REVIEW
A. APPELLATE LENS
The standards of review and the burdens of proof applicable to our review of a
trial court’s ruling on a special appearance are well-established. Whether a trial court
4
The Riolas did not respond to the special appearance.
6
has personal jurisdiction is a question of law. BMC Software Belg., N.V. v. Marchand,
83 S.W.3d 789, 794 (Tex. 2002). A plaintiff has the initial burden to plead sufficient
allegations to bring a nonresident defendant within the provisions of the Texas long-
arm statute. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); Retamco
Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009); see also Tex. Civ.
Prac. & Rem. Code Ann. § 17.042. This minimal burden is met by an allegation that
the nonresident defendant is doing business in Texas. Dole v. LSREF2 APEX 2,
LLC, 425 S.W.3d 617, 624 (Tex. App.—Dallas 2014, no pet.) (citing Assurances
Générales Banque Nationale v. Dhalla, 282 S.W.3d 688, 695 (Tex. App.—Dallas 2009, no
pet.)). Once a plaintiff sufficiently pleads such jurisdictional allegations, the burden
shifts to the defendant to negate the bases of personal jurisdiction asserted by the
plaintiff. Kelly, 301 S.W.3d at 658; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,
574 (Tex. 2007).
In determining whether the nonresident defendant sufficiently negated the
pleaded bases for personal jurisdiction, the trial court frequently must resolve
questions of fact. BMC Software, 83 S.W.3d at 794. When, as here, the trial court does
not issue findings of fact,5 we should presume that the trial court resolved all factual
disputes in favor of its jurisdictional ruling. See Old Republic Nat’l Title Ins. Co. v. Bell,
Shaw timely filed a request for findings and conclusions and a notice that they
5
were past due. See Tex. R. Civ. P. 296–97. The trial court did not file findings and
conclusions, and none were required. See Tex. R. App. P. 28.1(c).
7
549 S.W.3d 550, 558 (Tex. 2018); Moki Mac, 221 S.W.3d at 574; Am. Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002); BMC Software, 83 S.W.3d at
795. The operative facts in this case are undisputed; thus, we rely on a de novo
review of the trial court’s application of law to its ultimate jurisdictional ruling. See
Am. Type, 83 S.W.3d at 806; Crystalix Grp. Int’l, Inc. v. Vitro Laser Grp. USA, Inc.,
127 S.W.3d 425, 427 (Tex. App.—Dallas 2004, pet. denied); see also LaLonde v. Gosnell,
593 S.W.3d 212, 220 (Tex. 2019) (“Deference must be afforded to the trial court’s
disposition of disputed facts, but when there are none, as here, our review is entirely
de novo.”).
B. LONG-ARM STATUTE AND DUE PROCESS
A special appearance challenges the trial court’s personal jurisdiction over a
defendant. Texas courts may not exercise personal jurisdiction over a nonresident
defendant unless federal due-process requirements and the Texas long-arm statute are
satisfied. Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–.045; Helicopteros Nacionales de
Colom., S.A. v. Hall, 466 U.S. 408, 412–13 & n.7 (1984). The Texas long-arm statute
and the requirements of due process are coextensive; thus, the long-arm statute is
satisfied if the exercise of personal jurisdiction comports with federal due process. See
Guardian Royal Exch. Assurance, Ltd. v. Eng. China Clays, P.L.C., 815 S.W.2d 223, 226
(Tex. 1991). Federal due process is satisfied if (1) the nonresident defendant has
“minimum contacts” with Texas and (2) the exercise of personal jurisdiction over the
nonresident defendant does not offend “traditional notions of fair play and substantial
8
justice.” Int’l Shoe Co. v. Wash., Office of Unemp. Comp. & Placement, 326 U.S. 310, 316
(1945).
1. Minimum Contacts
A defendant’s contacts may give rise to two types of personal jurisdiction:
specific or general jurisdiction. Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt.
VI, L.P., 493 S.W.3d 65, 71 (Tex. 2016); Moki Mac, 221 S.W.3d at 575–76.
When specific jurisdiction is asserted, we focus on the relationship between the
defendant, the forum, and the litigation. Moki Mac, 221 S.W.3d at 575–76. Minimum
contacts, giving rise to specific jurisdiction over a defendant, are present when a
nonresident defendant “purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958); see Old Republic, 549 S.W.3d at 559.
In determining purposeful availment, we consider (1) the defendant’s own actions but
not the unilateral activity of another party, (2) whether the defendant’s actions were
purposeful rather than “random, isolated, or fortuitous,” and (3) whether the
defendant sought “some benefit, advantage, or profit by ‘availing’ itself” of the
privilege of doing business in Texas. Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777, 785 (Tex. 2005); see also Old Republic, 549 S.W.3d at 565–66 & n.5.
The nonresident defendant’s contacts are considered as a whole and not in isolation,
focusing on the quality and not the quantity of the contacts. Retamco Operating,
278 S.W.3d at 339; Guardian Royal, 815 S.W.2d at 230 n.11.
9
On the other hand, general jurisdiction is a more demanding test to meet than
specific jurisdiction. Old Republic, 549 S.W.3d at 565. General jurisdiction is not
dispute-dependent but requires continuous and systematic business contacts.
Helicopteros, 466 U.S. at 414–16; Old Republic, 549 S.W.3d at 565. But even continuous
and systematic contacts will be insufficient to confer general jurisdiction if they do not
render the nonresident defendant “essentially at home” in the chosen forum. Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
2. Fair Play and Substantial Justice
If minimum contacts are present, the nonresident defendant then bears the
burden to present a compelling case that the exercise of personal jurisdiction would
nevertheless offend traditional notions of fair play and substantial justice. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985); Furtek & Assocs., L.L.C. v. Maxus
Healthcare Partners, LLC, No. 02-15-00309-CV, 2016 WL 1600850, at *3 (Tex. App.—
Fort Worth Apr. 21, 2016, no pet.) (mem. op.). In deciding if the nonresident
defendant met his burden, we are to consider (1) the burden on the nonresident
defendant, (2) the interests of the forum state 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 states in furthering fundamental substantive social
policies. Guardian Royal, 815 S.W.2d at 231. “Only in rare cases . . . will the exercise
10
of jurisdiction not comport with fair play and substantial justice when the nonresident
defendant has purposefully established minimum contacts with the forum state.” Id.
III. APPLICATION OF STANDARDS
TO PERSONAL-JURISDICTION FACTS
A. NICHOLSON AND THE RIOLAS’ BURDEN TO
PLEAD SUFFICIENT JURISDICTIONAL ALLEGATIONS
In her first sub-issue,6 Shaw argues that Nicholson and the Riolas failed to
plead sufficient facts establishing personal jurisdiction over Shaw as a nonresident.
To meet their minimal pleading burden, Nicholson and the Riolas had to show the
actions upon which jurisdiction is based but did not have to make a prima facie
showing of the existence or merits of a cause of action. See Baldwin v. Household Int’l,
Inc., 36 S.W.3d 273, 277 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Arterbury v.
Am. Bank & Trust Co., 553 S.W.2d 943, 947 (Tex. App.—Texarkana 1977, no writ).
Nicholson and the Riolas alleged that all defendants, including Shaw, were residents
of Texas or were doing business in Texas. To support their “doing business”
assertion as to Shaw, they alleged that she was acting as the independent executor of
Robin’s estate in a Texas probate court and had designated a resident agent for service
of process. Nicholson and the Riolas raised a negligence claim against Robin’s estate
based on Robin’s alleged failure “to properly navigate and operate the subject aircraft
6
Shaw raises one appellate issue: “Whether the Trial Court erred by denying
[Shaw’s] Special Appearance.” This issue, in turn, incorporates four “sub-issues,” in
which she raises the grounds allegedly supporting her assertion of error.
11
[in Texas] in a safe and competent manner,” which proximately caused the crash and
Misty’s death.7 And they continued to allege that Rico Aviation was liable for Robin’s
actions under a respondeat superior theory.
In their briefing and at oral argument, Nicholson and the Riolas specifically
limit their personal-jurisdiction theory to Shaw’s actions as Robin’s estate’s
independent executor. We note that Nicholson and the Riolas alleged that Robin
committed a tort in Texas, which arguably could have brought Shaw in her capacity as
Robin’s estate’s independent executor within the reach of the Texas long-arm statute.
See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2); see also id. § 71.021(b) (providing
personal-injury action survives against deceased defendant and defendant’s legal
representatives); Ferreira v. Butler, 575 S.W.3d 331, 334 (Tex. 2019) (recognizing
executor stands in decedent’s shoes); Price v. Est. of Anderson, 522 S.W.2d 690, 691
(Tex. 1975) (“A suit seeking to establish the decedent’s liability . . . should ordinarily
be instituted against the personal representative or, under appropriate circumstances,
against the heirs or beneficiaries.”); Bruno’s Inc. v. Arty Imports, Inc., 119 S.W.3d 893,
898–99 (Tex. App.—Dallas 2003, no pet.) (concluding plaintiff sufficiently pleaded
jurisdictional facts under a respondeat superior theory). However, Nicholson and the
Riolas have expressly disclaimed those allegations as supportive of their personal-
jurisdiction assertion, and we decline to make the argument in their stead, especially as
They did not allege that Robin’s negligence was a proximate cause of Scott’s
7
death.
12
to a matter on which they carried the burden. See, e.g., Craaybeek v. Craaybeek, No. 02-
20-00080-CV, 2021 WL 1803652, at *5 (Tex. App.—Fort Worth May 6, 2021, pet.
filed) (mem. op.); Cantu v. Cantu, 556 S.W.3d 420, 434–35 (Tex. App.—Houston [14th
Dist.] 2018, no pet.).
In any event, the Texas long-arm statute extends personal jurisdiction to those
“doing business” in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042. Nicholson
and the Riolas’ allegation that Shaw did so by acting as the independent executor in
the probate court was sufficient to meet their minimal, initial pleading burden. See
Dole, 425 S.W.3d at 624; In re Est. of Davis, 216 S.W.3d 537, 545–46 (Tex. App.—
Texarkana 2007, pet. denied). We overrule Shaw’s first sub-issue.
B. SHAW’S BURDEN TO NEGATE ALLEGED JURISDICTIONAL BASIS
1. The Estate’s Independent Administration Was Not Informally Closed
Shaw asserts in her second sub-issue that because she conclusively established
that the independent administration was informally closed at the time Nicholson and
the Riolas named her as a defendant in her capacity as independent executor,8 she
negated this pleaded jurisdictional basis. Shaw relies on the inventory affidavit she
had filed in the probate court and argues that the information she included served to
Nicholson and the Riolas did not file suit against Shaw individually as Robin’s
8
sole beneficiary. Cf. Moore v. Barlow, 352 S.W.2d 804, 806 (Tex. App.—San Antonio
1961, writ ref’d n.r.e.) (holding executor could be named and held individually liable
for deceased husband’s tort because estate had no debts, estate had been fully
administered, and executor was sole devisee).
13
close the independent administration “by operation of law.” She also relies on her
special-appearance declarations in which she declared that all estate debts had been
paid no later than February 8, 2018; all estate assets had been transferred, sold, or
donated no later than February 8, 2018; and that she had not acted as the independent
executor since February 8, 2018.9 In her September 2020 special-appearance
declaration, Shaw included a chart showing the estate’s property and assets and each’s
“Status”—“closed out,” distributed, donated, etc. In sum, Shaw contends that the
critical jurisdictional inquiry here is whether the independent administration was open
or closed at the time Nicholson and the Riolas named her as a defendant. Cf. Tex.
Est. Code Ann. § 405.007(b) (providing if independent administration is formally
closed, independent executor’s power and authority terminate).
Independent estate administrations generally are not formally closed in Texas,
presumably because an independent executor is not required to formally close an
independent administration by filing a closing report, filing a notice of closing estate,
or seeking a declaratory judicial discharge. See id. § 405.012; Est. of Stegall, No. 02-17-
00410-CV, 2019 WL 6205244, at *6 (Tex. App.—Fort Worth Nov. 21, 2019, no pet.)
(mem. op.). See generally Tex. Est. Code Ann. § 402.001 (mandating after probate
court appoints independent executor and after independent executor files inventory
affidavit, further action by probate court prohibited unless otherwise provided in
9
Shaw signed the inventory affidavit on February 8, 2018, but filed it in the
probate court on February 12, 2018.
14
Estates Code). In the absence of a formal closing, an independent administration may
be considered closed when the facts and circumstances show that all debts and claims
against the estate have been paid, the estate’s net assets have been distributed, and
there is no need for further administration. See Stegall, 2019 WL 6205244, at *6; In re
Est. of Teinert, 251 S.W.3d 66, 67 (Tex. App.—Waco 2008, pet. denied) (per curiam);
17 M. K. Woodward et al., Tex. Practice Series: Probate and Decedents’ Estates § 513.5
(2020). See generally William I. Marschall Jr., Independent Administration of Decedents’
Estates, 33 Tex. L. Rev. 95, 116 (1954) (“[I]ndependent executors may close an
administration and relinquish the property to the heirs or devisees, without the
formality of judicial sanction or with judicial sanction, if they so choose.”).
Accordingly, to determine whether the facts and circumstances indicate that an
independent administration was informally closed, “the issue is whether the debts of
the estate have been paid and the property distributed such that there was no need for
further administration.” In re Est. of Rowan, No. 05-06-00681-CV, 2007 WL 1634054,
at *3 (Tex. App.—Dallas June 7, 2007, no pet.) (mem. op.).
Here, Shaw’s inventory affidavit failed to address whether the estate’s assets
had been distributed. Although she averred that the estate had no unpaid debts and
that she was the sole beneficiary, she wholly failed to state that the estate’s assets had
been distributed. Until an estate’s assets are distributed, an independent
administration cannot be considered closed, even informally. See Stegall, 2019 WL
6205244, at *6; Teinert, 251 S.W.3d at 67. Of course, because an inventory affidavit is
15
filed within 90 days after the probate court appoints a personal representative, such an
affidavit is not statutorily required to state that the assets have been distributed or that
further administration is not needed. See Tex. Est. Code Ann. §§ 309.051(a),
309.056(b). In fact, one of the purposes of an inventory affidavit is to allow an
interested person10 to apply to the probate court for an order compelling the
independent executor to provide a copy of the full inventory, appraisement, and list of
claims. See id. § 309.056(c); 2 Thomas M. Featherston Jr. et al., Tex. Practice Guide:
Probate § 10:13 (2020).
Although Shaw’s affidavit met the statutory requirements for an inventory
affidavit, it did not provide the information that would show further administration
was not needed. See Rowan, 2007 WL 1634054, at *3. And Shaw’s after-the-fact
declarations, which were filed in the trial court in support of her special appearance,
do not equate to probate-court facts and circumstances establishing that the
independent administration had been informally closed in 2018. Cf. Mooney v. Harlin,
622 S.W.2d 83, 85 (Tex. 1981) (“Persons interested in an estate admitted to probate
are charged with the contents of the probate records.”).11 Thus, we conclude that the
Nicholson and the Riolas would be considered interested persons. See Tex.
10
Est. Code Ann. § 22.018(1).
We recognize that a special appearance is to be decided on the basis of any
11
submitted affidavits or attachments. See Tex. R. Civ. P. 120a.3. But Shaw’s special-
appearance declarations add facts that were not included in her inventory affidavit and
were not otherwise apparent in the probate court.
16
independent administration was not informally closed at the time Nicholson and the
Riolas named Shaw as a defendant in her capacity as Robin’s estate’s independent
executor. We overrule sub-issue two.
2. Shaw’s Actions as Independent
Executor Establish Specific Jurisdiction
In her third sub-issue, Shaw argues that the evidence was legally and factually
insufficient to support the trial court’s implicit finding that she had sufficient
minimum contacts with Texas that would confer general or specific personal
jurisdiction. Regarding specific jurisdiction, she contends that she did not
purposefully avail herself of conducting business activities in Texas because by the
time Nicholson and the Riolas named her as a defendant, the estate was informally
closed and her obligations and duties as independent executor had ended. We have
rejected this argument and conclude that Shaw failed to negate specific jurisdiction.
See, e.g., Davis, 216 S.W.3d at 545–46. Because Shaw did not negate specific
jurisdiction, we need not address whether Shaw negated general jurisdiction. See E.
Concrete Materials, Inc. v. ACE Am. Ins. Co., 948 F.3d 289, 296 (5th Cir. 2020). We
overrule sub-issue three.
C. SHAW’S BURDEN TO ESTABLISH FAIR-PLAY
AND SUBSTANTIAL-JUSTICE NOTIONS OFFENDED
In her fourth sub-issue, Shaw contends that the exercise of personal
jurisdiction would nevertheless offend traditional notions of fair play and substantial
justice. She argues that her age, her poor health, Texas’s minimal interest in bringing
17
a nonresident and nontortfeasor into Texas, Nicholson’s and the Riolas’ ability to
obtain effective relief without Shaw’s presence in the suit, the procedural
complications that would result from Shaw’s presence in the suit, and Texas and
Kentucky’s shared interest in probate finality all show that the exercise of personal
jurisdiction would offend fair play and substantial justice. Again, it is rare that these
notions will be offended if minimum contacts are established. Cornerstone Healthcare,
493 S.W.3d at 74; Guardian Royal, 815 S.W.2d at 231.
Shaw’s arguments do not meet her burden to present “a compelling case that
the presence of some other considerations would render jurisdiction unreasonable.”
Burger King, 471 U.S. at 477. In other words, this is not a rare instance where fair play
and substantial justice would be offended even though minimum contacts with Texas
are present. See Guardian Royal, 815 S.W.2d at 231. Shaw was able to administer
Robin’s estate in a Texas probate court even though she did not live in Texas.
Although Nicholson and the Riolas arguably could recover on their negligence claims
from the other named defendants, they are correct that such a recovery would not
account for any percentage of responsibility assigned to Robin. Any procedural issues
that could arise by Shaw’s presence in the suit would not put Shaw at a disadvantage.
And Shaw fails to explain how Kentucky’s interest in a deceased Texas resident’s
estate would be equivalent to Texas’s interest. We conclude that exercising personal
jurisdiction over Shaw would not offend traditional notions of fair play and
substantial justice. See, e.g., Cornerstone Healthcare, 493 S.W.3d at 74; Stein v. RevCap,
18
LLC, No. 04-16-00610-CV, 2017 WL 1244439, at *5 (Tex. App.—San Antonio
Apr. 5, 2017, no pet.) (mem. op.); Motor Car Classics, LLC v. Abbott, 316 S.W.3d 223,
233 (Tex. App.—Texarkana 2010, no pet.); Davis, 216 S.W.3d at 547–48. We overrule
Shaw’s fourth sub-issue.
IV. CONCLUSION
Nicholson and the Riolas rely solely on Shaw’s conducting business in Texas as
Robin’s estate’s independent executor to establish personal jurisdiction over Shaw,
which they sufficiently pleaded in their negligence suit. However, Shaw has failed to
negate this alleged jurisdictional basis. Although she filed an inventory affidavit while
acting as Robin’s estate’s independent executor in a Texas probate court, this affidavit
did not operate to informally close the independent administration because it did not
indicate that the assets had been distributed. And no other facts and circumstances in
the probate court so indicated. Accordingly, the independent administration was not
closed when Nicholson and the Riolas filed suit against Shaw in her capacity as the
estate’s independent executor based on Robin’s alleged negligence leading to the plane
crash. Because the independent administration was not closed, Shaw’s actions and
status as an independent executor in a Texas probate court provided the requisite
minimum contacts to confer specific, personal jurisdiction over Shaw in Texas. Shaw
has not met her burden to provide a compelling case that bringing her into a Texas
court would offend traditional notions of fair play and substantial justice. Thus, the
exercise of personal jurisdiction over Shaw comports with due process. For these
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reasons, we overrule Shaw’s appellate issue and affirm the trial court’s order denying
Shaw’s special appearance.
/s/ Brian Walker
Brian Walker
Justice
Delivered: July 1, 2021
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