Appeal from the 11th District Court Harris County, Texas
Trial Court Case No. 2015-11871
consists of Justices Keyes and Bland. 
OPINION ON REHEARING 
appeal from a special appearance arises out of a dispute
between German citizens concerning the provenance of a
cauldron discovered in a Bavarian lake. Josef Hatzenbuehler
sued Jens Essig, alleging that Essig and others falsely
represented the cauldron to be of ancient Celtic origin. With
Essig's assistance, Josef purchased the cauldron at a
Swiss bankruptcy sale. Josef alleged that he later discovered
that the cauldron was likely created by the Nazis in the
1940's, making it significantly less valuable.
died during the pendency of the suit and his widow, Brigitte
Hatzenbuehler, succeeds him as plaintiff. The live pleading
alleges that Essig committed fraud, fraudulent inducement,
negligent misrepresentation, and breach of contract in
connection with the cauldron transaction.
specially appeared, contending that the trial court lacked
personal jurisdiction over him. The trial court agreed,
granted the special appearance, and dismissed the suit.
Hatzenbuehler appeals, contending that the trial court erred
in granting the special appearance. We affirm.
the relevant time period, the Hatzenbuehlers resided in
Texas, but they returned to Germany to visit family and
friends during holidays. Essig, a resident of Germany, has
never visited Texas and has no property or agents in Texas.
to the pleadings, Essig and others discovered an artifact
known as the Chiemsee Cauldron while exploring a Bavarian
lake. The cauldron reportedly was of pre-Christian, Celtic
origin. Starting in 2008, Josef discussed the discovery of
the cauldron several times with Essig during the
Hatzenbuehlers' annual holiday visits to Germany. Josef,
a collector of antiques and artifacts, expressed an interest
in acquiring the cauldron. He requested information
concerning its authenticity and value. Essig told him that
the cauldron was in the possession of a bankruptcy estate in
Switzerland and was to be sold at the estate auction in
and Essig continued phone and e-mail contact through 2014.
Throughout this period, during which Josef resided in Houston
and Essig in Switzerland, Essig repeatedly represented that
the cauldron was authentic and of great value. In March 2014,
Essig sent an e-mail to Josef confirming he had materials
that authenticated the cauldron and its value. Essig informed
Josef that Essig had been qualified to place a bid on the
cauldron as a creditor of the Swiss bankruptcy estate. Essig
and Josef discussed an assignment of Essig's bidding
rights to Josef so that Josef could acquire the cauldron at
the Swiss auction.
while in Houston, drafted a Letter of Intent to share profits
earned on the cauldron's sale. The parties signed the LOI
on or about April 13, 2014. The letter of intent declared
that it was non-binding, but it outlined the parties'
• Josef would bid on the cauldron with the intent of
purchasing it and gaining sole ownership of it;
• Essig would assist Josef in obtaining the winning bid;
• Essig would provide Josef with a list of all
information in his possession concerning the cauldron,
including reports, tests, specifications, articles, and
agreements, for the purpose of determining a bid ceiling; and
• The parties would each earn 50% of the profits, less
costs and expenses incurred by Josef in connection with the
acquisition, holding, and subsequent sale of the cauldron.
that month, the parties circulated a draft profit-sharing
agreement, which provided for the application of Texas
choice-of-law rules and includes Texas venue provisions. The
draft agreement was never executed.
month after the parties signed the non-binding LOI, in May
2014, the Hatzenbuehlers traveled to Zurich, Switzerland, to
view the cauldron and meet with Essig and others, including
Josefs Swiss attorney. By that time, the Hatzenbuehlers had
heard rumors in Germany and Switzerland that the cauldron was
not of ancient Celtic origin, but instead had been created by
the Nazis, who dumped the cauldron in the Bavarian lake in
1945. Essig assured the Hatzenbuehlers "many times
during the trip to Zurich" that the cauldron was of
ancient Celtic origin and that experts would confirm its
provenance. Josef decided to proceed with the purchase and
told those present that, after he purchased the cauldron, he
planned to ship it to Houston for marketing in the United
States because of the rumors in Germany and Switzerland that
its provenance was suspect.
and Josef then negotiated a Preliminary Agreement to address
the acquisition of the cauldron. They had a German attorney
draft the agreement and forward the draft to Josef in
Houston. Josef then traveled to Munich, Germany to sign it.
The Preliminary Agreement, which expressly replaced the
letter of intent, recited that "both parties are