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O'Daire v. Rowand Recovery, LLC

Court of Appeals of Texas, Fifth District, Dallas

March 9, 2017

BARBARA O'DAIRE, Appellant
v.
ROWAND RECOVERY, LLC, Appellee

         On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-01749.

          Before Justices Francis, Lang-Miers, and Whitehill

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE

         This is an interlocutory appeal from an order denying appellant Barbara O'Daire's special appearance. The pivotal question is whether her emails and telephone calls with a Texas company constitute "purposeful availment" that would support a Texas court's exercising personal jurisdiction over her. Because the facts and binding precedents compel the conclusion that she did not purposefully avail herself of the privilege of conducting activities in Texas, we issue this memorandum opinion and reverse.

         I. Background

         The facts are well-known to the parties. Therefore, we recite the facts to the limited extent necessary to decide this case. We draw the facts from the parties' pleadings and special-appearance evidence.

         At all relevant points in time, O'Daire has been a Virginia citizen and resident and Bay Capital Management Group, LLC's president. BCMG was an entity formed under Virginia law with its principal place of business in Virginia.

         Appellee Rowand Recovery, LLC is a debt collection company based in Dallas, Texas.

         Rowand found BCMG's website while searching for consumer debt portfolios to buy. Rowand's attorney and agent, Hershel Chapin, contacted BCMG about buying Texas consumer debts. Rowand ultimately bought a portfolio of accounts from BCMG. BCMG employee Barbara Helmandollar handled the negotiations for BCMG, but O'Daire signed the contract for BCMG.

         After paying the purchase price, Rowand told BCMG that it was dissatisfied with the chain of title documents BCMG sent. About a month after the contract was executed, O'Daire began communicating with Chapin by telephone and email about the alleged defects in BCMG's performance. On some occasions, she emailed Chapin files relating to the account purchase, but Rowand contends these efforts did not cure the defects. Rowand alleges that on one occasion O'Daire emailed Rowand a corrected bill of sale from BCMG's predecessor in interest that was a "complete fabrication." Rowand further alleges that O'Daire later sent a revised bill of sale that contained false representations. Rowand alleges that it ultimately discovered that it never acquired title to any of the accounts it bought because BCMG itself never had title to them.

         A few months after O'Daire's last communication, Rowand sued her in Dallas County, asserting warranty and Texas Deceptive Trade Practices Act claims.[1]

         O'Daire filed a special appearance challenging Texas's personal jurisdiction over her, to which Rowand responded with evidence attached. O'Daire replied with evidence attached.

         The trial court held a hearing and denied the special appearance. The order recites that "specific personal jurisdiction exists over Defendant in this forum for all claims alleged in Plaintiff's original petition."[2] No findings of fact were requested or made.

         O'Daire timely appealed. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(7).

         II. ...


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