Wayne Lensing Appellants Brief

NO.
05-13-00353-CV
IN THE FIFTH COURT OF APPEALS
DALLAS, TEXAS
WAYNE LENSING and LEFTHANDER MARKETING, INC.
Appellants
v.
DAVID CARD and CLEO LOWE
Appellees
On Appeal from the 298th District Court
Dallas County, Texas, Cause No. DC-12-06631-M
Honorable Emily G. Tobolowsky, Presiding Judge
APPELLANTS BRIEF
Kenneth E. East
State Bar No. 00790622
FOSTER & EAST
9001 Airport Freeway, Suite 675
Oral Argument Requested North Richland Hills, Texas 76180
Phone: (817) 788-1111
Fax: (817) 485-2836
ken@fostereast.com
ATTORNEY FOR APPELLANTS
WAYNE LENSING and LEFTHANDER
MARKETING, INC.
ACCEPTED
225EFJ017473670
FIFTH COURT OF APPEALS
DALLAS, TEXAS
13 May 8 A9:22
Lisa Matz
CLERK
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
5/8/2013 9:22:11 AM
LISA MATZ
Clerk
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), ken@fostereast.com.
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), attywnm@aol.com.
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), dlthom31@yahoo.com; 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),
sjoyner@rossjoynerlaw.com.
ii
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Wayne Lensing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. The Museum Collection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Lefthander Marketing, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
E. Ragan Contacts Lensing in Illinois, Claims Unencumbered
Ownership of, and Sells, the Headstone. . . . . . . . . . . . . . . . . . . . 7
F. Ragans Prior Contact with Heritage. . . . . . . . . . . . . . . . . . . . . . . 9
G. Other Contacts with Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. Standard of Review and Burdens. . . . . . . . . . . . . . . . . . . . . . . . . 13
1. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. Plaintiffs bear the initial and ultimate burdens. . . . . . . . . 14
B. The law of personal jurisdiction, generally. . . . . . . . . . . . . . . . . 17
iii
C. Argument in support of Issue No. 1. . . . . . . . . . . . . . . . . . . . . . . 20
The trial court erred by denying Appellants special
appearance because (1) Appellees only claimed
jurisdictional facts are insufficient as a matter of law
to confer personal jurisdiction over Appellants, and
(2) even if any of the pleaded facts were to be
considered sufficient on their face, Appellants have
fully negated them, and the evidence is legally
insufficient, or alternatively, factually insufficient, to
support 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 are
insufficient as a matter of law to confer personal
jurisdiction over Appellants.. . . . . . . . . . . . . . . . . . . . . . . . 25
a. Plaintiffs-Appellees First Allegation. . . . . . . . . . . . 26
b. Plaintiffs-Appellees Second Allegation. . . . . . . . . 28
c. Plaintiffs-Appellees Third Allegation. . . . . . . . . . . 33
d. Plaintiffs-Appellees Fourth Allegation. . . . . . . . . . 38
3. Even if any of the pleaded facts were to be considered
sufficient on their face, Appellants have fully negated
them, and the evidence is legally insufficient, or
alternatively, factually insufficient to support any
implied 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 trial
courts exercise of personal jurisdiction
iv
over Appellants violates traditional
notions of fair play and substantial
justice.
CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . 48
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
APPENDIX.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
v
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., Solano
County, 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
vi
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
vii
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
viii
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.
1
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.
2
ISSUES PRESENTED
No. 1
jurisdictional facts are insufficient as a matter of
law to confer personal jurisdiction over the Illinois
Appellants, and (2) even if any of the pleaded facts
were to be considered sufficient on their face,
Appellants have fully negated them, and the
evidence is legally insufficient, or alternatively,
factually insufficient, to support any implied
findings conferring jurisdiction.
No. 2
Under the facts of this case, the trial courts exercise
of personal jurisdiction over Appellants violates
traditional notions of fair play and substantial
justice.
3
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
4
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
5
rooms of furniture used to furnish the White House at different points in its
history. CR 240. He has collections of movie and television stage sets and
artifacts as well as a collection of NASA artifacts. Id. His collection of
presidential memorabilia includes several items related to Presidents
Abraham Lincoln and John F. Kennedy, including items relating to their
respective assassinations. Id. Lensing has always owned all of these items in
his own name. Id.
D. Lefthander Marketing, Inc.
As his collection grew, Wayne Lensing realized that he needed a better
way to store and display the items. CR 240. He believed the collection was
interesting enough that the public may enjoy viewing it. Id. So, in 2001, he
opened a museum. Id. He continues personally to own the items in the
collection in his own name (or as trustee of a revocable trust), but he formed
a corporation, Lefthander Marketing, Inc., which was incorporated on
January 14, 2003, to serve as a management company for the museums
operations. Id. Lefthander Marketing, Inc., manages the museum by
collecting admission fees from customers and paying the operating expenses,
but the corporation owns none of the museums contents. Id.
6
E. Ragan Contacts Lensing in Illinois, Claims Unencumbered
Ownership 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.
7
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
8
Illinois the very next day, after spending one night in a Fort Worth motel. Id.
That was the one and only time Lensing ever went to the State of Texas
related in any way to the headstone or his purchase thereof. Id.
F. Ragans Prior Contact with Heritage
Prior to Ragan contacting Lensing, she contacted Heritage Auctions
(now a defendant below) in order to try to sell Heritage the headstone. CR
243-44, 260. Heritage, ultimately, simply declined to purchase the headstone.
CR 260. Heritage suggested to Ragan that she may try calling Lensing
because, someone from Heritage told her, he collected similar artifacts. Id.
G. Other Contacts with Texas
Defendant Lefthander Marketing, Inc., simply has had no contacts with
Texas, either related to the underlying facts of this case or otherwise. CR 244-
45. It is an Illinois corporation. Id. Its only business is to manage Wayne
Lensings museum in Illinois. Id. It has never done any business in Texas,
has never sent employees or representatives on its behalf to Texas, nor has it
ever done anything else in, or in any way directed to or related to, Texas. CR
245. Wayne Lensing has been to Texas only four times in his entire life. CR
248. Neither defendant is required to, nor do they, maintain a registered
9
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
10
traveled back to Cresson to purchase a Yellow Checker cab, which he
arranged to have shipped to himself in Illinois. Id.
Lensing has purchased a number of items for his collection through
Heritage Auctions via internet auctions, which he participated in from his
computer in Illinois, similar in fashion to placing bids on Ebay. CR 249.
Appellants did not contract with the Plaintiffs-Appellees or have any other
interaction with them whatsoever, nor did they even know of their existence
at the time Lensing purchased the headstone. CR 246-47; see also RR 11-13;
RR Ex. 2 (Admissions 1-6).
These are the extent of Appellants contacts with the State of Texas.
SUMMARY OF THE ARGUMENT
Texas courts have no personal jurisdiction over Appellants in this
lawsuit. Appellees have attempted to make this case seem complicated and
to make the underlying facts appear somehow to be sinister. But, at its heart,
at least with regard to the jurisdiction question, this case is very simple.
There can be no specific jurisdiction. Plaintiffs-Appellees were not
parties to the transaction between Lensing and Ragan, and, at that time,
Appellants had never so much as heard of them. There is, therefore, no
11
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
12
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.
13
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 and ultimate 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)).
14
The jurisdictional analysis centers on the defendants conduct, and the
plaintiff must plead that the defendants conduct, which gives rise to the
plaintiffs cause of action, occurred in Texas. Kelly, 301 S.W.3d at 660. The
mere existence of a cause of action is not enough. Id. If the plaintiff fails to
plead sufficient jurisdictional facts, the defendant need only prove that it
does not live in Texas to negate jurisdiction. 301 S.W.3d at 659.
To the extent the plaintiff does plead factual allegations sufficient to
bring a nonresident defendant within reach of the long-arm statute, the
defendant filing a special appearance bears the burden to negate all bases of
personal jurisdiction alleged by the plaintiff. Id. at 658. The plaintiffs exact
factual allegations, as set forth in its pleading, however, remain essential to
frame the jurisdictional dispute. Id. at 658 n. 4. That is, [b]ecause the
plaintiff defines the scope and nature of the lawsuit, the defendant's
corresponding burden to negate jurisdiction is tied to the allegations in the
plaintiff's pleading. Id. at 658.
The defendant may negate properly pleaded jurisdictional allegations
on either a legal or a factual basis. Id. at 659. Legally, the defendant can
negate jurisdiction by demonstrating that even if the plaintiffs factual
15
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
16
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
17
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.
18
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
19
forum, a more demanding minimum contacts analysis than for specific
jurisdiction. Id. at 797.
C. Argument in support of Issue No. 1
jurisdictional facts are insufficient as a matter of
law to confer personal jurisdiction over Appellants,
and (2) even if any of the pleaded facts were to be
considered sufficient on their face, Appellants have
fully negated them, and the evidence is legally
insufficient, or alternatively, factually insufficient,
to support any implied findings conferring
jurisdiction.
1. Plaintiffs jurisdictional allegations and a summary of the few
disputed 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 jurisdiction
over the non-resident defendants, MUSEUM and LENSING,
under the terms of the United States Constitution and the Texas
long-arm statute for the reasons set forth below.
11. Under the Texas long-arm statute, Texas courts have the
power to exercise personal jurisdiction over a nonresident
defendant who does business in Texas. The statute provides that
doing business in Texas includes, among other things, where a
party contracts by mail or otherwise with a Texas resident and
20
either party is to perform the contract, in whole or in part, in
Texas, or where the defendant commits a tort, in whole or in part,
in Texas. Here, on information and belief, the non-resident
defendants 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 grave
marker, and performed the contract, in whole or in part, in Texas,
when LENSING traveled to Texas to pay for and/or take
possession of the grave marker (see PLAINTIFFS Exhibit A).
Additionally, the non-resident defendants committed the torts of
(1) conversion, when LENSING and MUSEUM wrongfully
exercised 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 and
MUSEUM unlawfully appropriated the grave marker in Texas, by
physically exercising dominion and control over the grave marker
in Texas, without the effective consent of PLAINTIFFS, owner
of the grave marker, with the express intent to permanently
deprive PLAINTIFFS of their right to possession of the grave
marker. All of PLAINTIFFS claims in this suit arise directly
from DEFENDANTS actions as set forth above.
This Courts exercise of jurisdiction over MUSEUM and
LENSING comports with the requirements of federal due process.
Personal jurisdiction over nonresident defendants is
constitutional 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. Here, LENSING and/or MUSEUM,
through LENSING, conducted negotiations with Texas resident,
Defendant RAGAN, facilitated by HERITAGE, and traveled to
Texas to perform the terms of a contract pertaining to, to make
payment for, and to take possession of, the grave marker. In
doing so, said defendants purposely directed their activities
toward Texas and purposely availed themselves of the privileges
21
of conducting activities in Texas. All causes of action pled
herein 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, the
non-resident defendants established sufficient contacts with Texas
to confer personal jurisdiction upon this Court, and the exercise
of jurisdiction over nonresident defendants LENSING and
MUSEUM comports with notions of fair play and substantial
justice.
Moreover, on information and belief, LENSING and/or
MUSEUM have had frequent and pervasive contacts with Texas
in contracting for the purchase of, leasing/borrowing, and
taking possession of, numerous items related to the
assassination of President John F. Kennedy and/or to Lee Harvey
Oswald, and other items (e.g., NASA related items) purchased in
Texas or leased or borrowed from individuals or entities located
in Texas. Historic Auto Attractions, owned by LENSING and/or
MUSEUM, currently displays and advertises the display of such
items (see PLAINTIFFS Exhibit B). In at least one such
transaction, LENSING, or LENSING on behalf of MUSEUM,
executed a written contract with Heritage agreeing that any
dispute arising under said contract would be resolved under the
laws of the state of Texas, in Dallas County, Texas. These
numerous and consistent, ongoing contacts, support the courts
exercise of personal jurisdiction over the non-resident defendants
under 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:
22
First Allegation: Appellants contracted with Holly Ragan and
performed 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 related
to one of those purchases, and that contract
with Heritage contained a Texas forum
selection 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
23
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 as
a 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
24
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.
25
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
26
the headstone, that they, too, should be able to sue Appellants in Texas.
, 1 2
Their argument is obviously flawed.
Because Appellees were not parties to the agreement between Lensing
and Ragan, they cannot use that transaction to create personal jurisdiction
over Appellants in their lawsuit against them. See, e.g., Nagle v. Oppedisano,
05-05-01246-CV, 2006 WL 2348975 (Tex. App.--Dallas Aug. 15, 2006, no pet.)
(Oppedisano is not a party to the legal services agreement. Thus, Nagle's
contacts with Texas in relation to the legal services agreement are not relevant
to the issue of specific jurisdiction regarding Oppedisano's claims.);
Yfantis v. Balloun, 115 S.W.3d 175, 182-83 (Tex. App.--Fort Worth 2003, no
pet.) (Balloun was not even a party to the licensing agreement. Therefore,
Appellees confusion in this regard is apparent when they argue in their
1
Response to the special appearance, In a contract case like this one . . . . This is
obviously not a contract case like in the authority cited by Appellees. Unlike in the
cited cases, here, the plaintiffs do not have a contract with the nonresident defendants.
Actually, under the facts of this case, even Holly Ragans ability to hale Lensing
2
into a Texas court for a breach of their agreement is far from a given. See, e.g.,
Hydrokinetics, Inc. v. Alaska Mech., Inc., 700 F.2d 1026 (5th Cir. 1983) (holding that
single purchase transaction, even where out-of-state defendant (1) agreed to purchase
specific goods to be manufactured in Texas; (2) payment for the goods was to be made
in Texas; (3) extensive communications occurred between the parties, originating in
Texas and Alaska; (4) officers of [defendant] traveled to Texas to close the deal; and
(5) the contract was formally created in Texas, not sufficient to establish personal
jurisdiction in action initiated by the Texas party to the agreement).
27
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 suggest
3
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 their
3
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).
28
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;
29
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 rightful
4
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 the
strongest 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 be
the owner of it.).
30
intent to permanently deprive Plaintiffs of their right to possession of the
grave marker. But again, Plaintiffs plead no facts even to suggest how it is
that the Illinois defendants were supposed to have known even of Plaintiffs
existence, let alone their now-claimed interest in the headstone, at the time of
the transaction with Ragan. See Tex. Civ. Prac. & Rem. Code 134.003 (Texas
Theft Liability Act, incorporating section 31.03 of Texas Penal Code); Ex parte
Smith, 645 S.W.2d 310, 311 (Tex. Crim. App. 1983) (construing section 31.03
and finding a specific intent to deprive the owner of property to be a
necessary element of theft).
Finally, Plaintiffs-Appellees have brought a civil conspiracy claim
against Appellants, but nowhere in their live pleading do they claim that their
conspiracy allegation provides a basis for invoking personal jurisdiction over
Appellants. See CR 123-24 (conspiracy claim); CR 113-16 (jurisdictional
allegations). And the only evidence presented regarding the special
appearance negates there being any conspiracy between Appellants and
anyone else to harm Appellees. See CR 240-44.
Appellees, themselves, in fact, argued in their original Response to the
Special Appearance that the civil conspiracy claim does not have anything
31
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, the
5
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 the
5
record during the special appearance hearing. RR at 5 (line 23) - 6 (line 3).
32
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
33
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.]
34
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,
35
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 Texas
vendors do not provide evidence warranting the
exercise 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, 80
L.Ed.2d 404 (1984), the United States Supreme Court
stated that mere purchases, even if occurring at
regular intervals, are not enough to warrant a State's
36
assertion of in personam jurisdiction over a
nonresident corporation in a cause of action not
related to those purchase transactions. And the Fifth
Circuit has stated, purchases and trips related
thereto, even if they occur regularly, are not, standing
alone, a sufficient basis for the assertion of
jurisdiction. Dalton v. R & W Marine, Inc., 897 F.2d
1359, 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
37
the contract between them to bolster its argument that Lensing should be
subjected to specific jurisdiction as to that dispute between Lensing and
Heritage involving that transaction. CR 189 14. In Miele v. Blockbuster Inc.,
3-04-CV-1228-BD, 2005 WL 176170 (N.D. Tex. Jan. 26, 2005), the court faced
a similar claim. It explained:
Here, plaintiff fails to allege, much less prove, that the
BRI Defendants have sufficient minimum contacts
with the State of Texas to establish general or specific
jurisdiction. Instead, plaintiff relies exclusively on a
forum selection clause in the Acquisition Agreement,
which provides:
This Agreement shall be governed by the
laws of the State of Texas applicable to
agreements wholly entered and wholly
performed within the state. The parties
hereby submit and consent to the
exclusive jurisdiction of the courts in
Dallas County in the State of Texas and
North Texas Federal Courts in any action
brought under or relating to this
Agreement.
Ordinarily, such a contractual provision is prima facie
valid and must be enforced unless the opposing party
shows that enforcement would be unreasonable.
However, as the BRI Defendants correctly point out,
plaintiff is not a party to the Acquisition
Agreement.
Id. at *4 (emphasis added).
38
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 sufficient
on their face, Appellants have fully negated them, and the
evidence is legally insufficient, or alternatively, factually
insufficient 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
39
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.
40
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.
41
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
42
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
43
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 exercise
of personal jurisdiction over Appellants violates
traditional 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
44
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
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.
46
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. East
State Bar No: 00790622
FOSTER & EAST
9001 Airport Freeway, Suite 675
Fort Worth, Texas 76180
47
Phone: (817) 788-1111
Fax: (817) 485-2836
ATTORNEY FOR DEFENDANTS
WAYNE LENSING and LEFTHANDER
MARKETING, INC.
CERTIFICATE OF COMPLIANCE
Based on the word count provided by the word processing program
used to create this brief, WordPerfect X5, this brief contains 9,193 words,
excluding the portions of the brief exempt from the word count under Texas
Rule of Appellate Procedure 9.4(i)(1).
/s/Kenneth E. East
Kenneth E. East
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument
has been served on all parties or their counsel of record on this day, May 8,
2013, as follows:
Wm. NICHOLAS MANOUSOS
3812 N. Hall Street
Dallas, Texas 75219
214-740-1711 (Telephone)
214-740-1744 (Fax)
ATTORNEY FOR APPELLEES
via fax and email
D. Lee Thomas, Jr.
507 West Central Ave.
Fort Worth, Texas 76106
817-625-8866
817-625-8950
ATTORNEY FOR DEFENDANT
HOLLY RAGAN
48
Samuel E. Joyner
Texas Bar No. 24036865
RossJoyner
1700 Pacific Avenue, Suite 3750
Dallas, Texas 75201
TELEPHONE: (214) 382-0894
FACSIMILE: (972) 661-9401
ATTORNEYS FOR HERITAGE
AUCTIONS, INC.
/s/Kenneth E. East
Kenneth E. East
49
NO. 05-13-00353-CV
IN THE FIFTH COURT OF APPEALS
DALLAS, TEXAS
Appellants
v.
DAVID CARD and CLEO LOWE
Appellees
APPELLANTS APPENDIX
Tab Description Clerks Record Page Nos.
A Order Denying Defendants Special
Appearance
CR 437
B Courts letter, declining to issue findings
of fact and conclusions of law
CR Supp. No. 1 at 4
C Affidavit of Wayne Lensing in Support of
Special Appearance
CR 239-57
D Plaintiffs Second Amended Petition and
Request for Declaratory Relief (without
exhibits)
CR 112-26
50
EXHIBIT A
Order Denying Defendants' Special Appearance

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' SPECIAL APPEARANCE
On November 2012, the Court heard and considered Defendants, Wayne Len5ing"s and
Lefthander Marketing, Inc.'s., Special Appearance. After considering the. pleadings, affidavits,
evidence presented; and arguments of counsel, the Court hereby 4./

ACCORDINGLY, IT IS HEREBY ORDERED, that Defendants, Wayne Lensing's and
Lefthander Marketing: Inc.'s., Special Appearance is DEl\'lED.
SIGNED on this the 4 day ofMarch, 2013.
437
EXHIBITB
Court's letter, declining to issue
findings of fact and conclusions of law
EMilY G. TOBOlOWSKY
JUDGE, 298TH DISTRICT COURT
DAllAS COUNTY, TEXAS.
Carolyn Dupree-Brown
Court Coordinator
TO:
FROM:
March 12, 2013
Kenneth East
Nick Manousos
Samuel Joyner
Lee Thomas
Judge Emily G. Tobolowsky
817-485-2836 (FAX)
(FAX)
972-661-9401 (FAX)
817-625-8950 (FAX}
Marcey Poeckes
Court Reporter
Re: Cause No. dc-12-06631"-M; David Card and Cleo Lowe v. Holly Ragan at al
Dear Counsel:
I have received Wayne Lensing and Lefthander Marketing's Request for Findings
of Fact and Conclusions of Law in this case. My research indicates that while Findings
and Conclusions may be helpful in an appeal of a denial of a special appearance, they
are not required. If counsel is aware of any authority that requires the making of
Findings and Conclusions in this instance, then please provide it to me as soon as
possible. If Counsel determines that the making of Findings and Conclusions is
discretionary, then I decline to make them.
youTr /1
J

EXHIBIT
18
4
EXHIBITC
Mfidavit of Wayne Lensing in Support of Special Appearance
(

CAUSE NO. DC-12-06631
DAVID CARD and CLEO LOWE,
Plaintiffs,

IN THE DISTRICT COURT
v.
M-298th JUDICIAL DISTRICT
HOLLY RAGAN, WAYNE LENSING,
and LEFTHANDER MARKETING, INC.,
d/bfa HISTORIC AUTO A ITRACTIONS,
Defendants. DALLAS COUNlY, TEXAS
AmDA VIT OF WAYNE LENSING IN SUPPORT OF
THE SPECIAL APPEARANCE OF DEFENDANTS
SfATEOF ILLINOIS
COUNTY OF WINNEBAGO

BEFORE ME, the undersigned authority, personally appeared WAYNE
LENSING, 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 sound
mind, capable of making this affidavit, and I have personal knowledge _of the facts
herein 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 Lefthander
Inc., and have been since its incorporation.
"My primary occupation is building race car chassis and parts, which I have been.
doing for-over twenty years, following my earlier careers as a race car driver and as an
assembly line worker for Chrysler. As an offshoot of my race car businesses and
interests, I have personally had the opportunity to acquire a number of unique and
automobiles, many of which have historic significance. My collection
EXHIBIT
AfFIDAVIT OF WA YN!i l..F.NSJNG IN SUPPORT OF SrECIAL AI"Pf..ARA M...l:
I)
I
PAGEl
EXHIBIT
1-
l!
c

.D
i
239

includes automobiles that span from 19th century horse drawn carriages to legendary
race cars-from Richard Petty's 1960 Plymouth Stock Car Danica Patrick's
Rahai-Letterman Racing 2005 IRL lndyCar-to cars used in television and movies,
one of the 'Batmobiles,' to the Presidential Limousines that carried Presidents
Harry S. Truman, Lyndon B. johnson, and Ronald Reagan. My interest in historic
artifacts grew from automobiles to other items, and] now have a significant coiJection
of historic artifacts,. particularly related to world leaders and U.S. presidents, including
several complete rooms of furniture used to furnish the White House at different points
in its history. J also have collections of movie and television sets and artifacts as weJl as
a collection of NASA artifacts. My colleetion of presidential memorabilia includes
several items related to Presidents Abraham Lincoln and john F. Kennedy, including
(
items relating to their respective AU of these items I have always owned,
and continue to own, personaJiy.
"As my personal collection of such coiJectible automobiles and other artifacts
grew, it got to the point that I needed a better way and place to them, and I
believed that the collection was interesting enough that the public may enjoy viewing
it. So, in 2001, I opened a museum, now managed by Lefthander Marketing, Inc. The
. .
museum operates under the assumed name, Historic Auto Attractions. J personally own
the contents of the museum (either in my own name or as trustee of a revocable trust).
Lefthander Marketing, Jnc., which was incorporated on January 14, 2003, manages the
museum, but owns none of its contents.
AFFIDA VITOf WAYNF. LF.NSINC IN StJJPORT OF SPIOAL APrP.ARANC."F. PACF.2
240
(

"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 that
she had inherited the original headstone that had marked the grave of Lee Harvey
Oswald (the 'Headstone'). She explained that it was the stone that was on Oswa1d;s
grave 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, it
was returned to Lee Harvey Oswald's mother, Marguerite Oswald, who placed it in
storage under her house in Fort Worth, Tarrant County.
"Ms. Ragan explained that relatives of hers purchased that house after
Marguerite Oswa1d passed away. Sometime thereafter, the Headstone was discovered
under the house. According to Ms. Ragan, family members later gave it to her
husband's parents, who later gave. it to her husband, Johnny Ragan.- After Johnny
Ragan's death in 2008, according to Ms. Ragan, the Headstone passed to her, as her
husband'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 sell
to me, and after examining documents she had faxed to me in Illinois, including the
Small Estate Affidavit in her husband, johnny Ragan's, probate case, and the order
approving 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 and
agreed to purchase the Headstone. (Plaintiffs have made much ado at times about the
AFfiOA VIT Of WAYNF.lF.NSINC IN SUPPORT OF SI'EOA I. APPF.ARANCF.
241
(

fact that J may have referred to the small estate affidavit as a 'will;' I'm not a lawyer and
my point has only ever been that I received and reviewed documents indicating that the
Headstone had passed to Ms. Ragan through an ':lfficial probate court proceeding.) A
copy of the Small Estate and-Order approving which Ms. Ragan
presented me as evidence ofher ownership of and right to sell the subject grave marker
are au ached hereto as Exhibit A. I am the custodian of the records of those three pages
of records, which are kept by me in the regular course of my business, and it was the
regular practice of my business for an employee or representative with knowledge of
the act, event, condition, opinion, or diagnosis, recorded to make the rec;ord or to
transmit infonnation thereof to be included in such record; and the record was made at
or near the time or soon thereafter. The records attached hereto are the
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 Fort
airport. She had brought the Headstone to the airport in her car. I removed the
headstone from her car and p1aced it into my plane. I flew back home to Illinois the very
next 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 lever
went to the State of Texas in any way whatsoever to the Headstone or my
purchase thereof.
"Contrary to what I understand the plaintiffs may have aJJeged in an
amended petition, Heritage Auctions played no role in the transaction between Ho11y
AFFIDA VlT OF WAYNF. LF.NSINC IN 5uPf'ORT OF 5PF.CIAI. APJF.ARI\NCH
242
(

Ragan and me involving the Headstone, other than, she told me, Heritage suggested to
her 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 that
informatio_n to Ms. Ragan. I had.no other conversations with Heritage at any time
regarding the Headstone or the. transa.ction, except on one occasion a Heritage
representative asked me what and, long after the transaction with
Ms. 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 the
stone from Ms. and received no commission or any other benefit, payment, or
gratuity of any nature whatsoever, directly, Indirectly, or otherwise, associated
therewi_th. Also, contrary to allegations, I never went to the City of Dallas or
Dallas County the day J up the Headstone or on any other day. to view the
Headstone 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 by Heritage with respect to any actions alleged by P1aintiffs. Neither
Lefthander nor I have ever had any sort of meeting of the minds with Heritage about
any issue alleged in this lawsuit. Neither Lefthander nor I have .ever been r:nembers of
any conspiracy whatsoever. Neither Lefthander nor I ever had any plan or scheme- with
or acted in concert with Heritage to commit any unlawful act or to commit any lawful
act by unlawful means and deny in fact ever doing such things. Heritage simply played
no role in my negotiation and transaction with Ms. Ragan. There was no agreement,
AFfiDAVIT OF W A YNF.lF.NSING IN SUPI'ORT OF Srf.(..,AI. AI'PF..ARANCF.
243
(

express, implied, or otherwise involving Heritage. I have seen documents produced to.
Plaintiffs by Heritage suggesting that Heritage may have internally initially desired to
participate in .the sale of the stone, but I never knew of such things until I was shown the
documents less than two weekS ago. Such possible plans-by Heritage obviously never
materialized, and Heritage simply did nothing more than give Ms. Ragan my name and
suggest she may want to try calling me. Once she did., I never once spoke or
communicated with Heritage in any way regarding the matter until long after my
purchase of the stone from Ragan was completed. Heritage never once suggested to me
anything whatsoever about the authenticity of the stone or its ownership. I explored
those. matters myself through my conversations with Ms. Ragan and my review of the
documents she supplied me.
"After acquiring the Headstone, I loaned it to the Museum, ~ n s i s t e n t with my
standard 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. I currently Jive and reside in Pop Jar Grove, Illinois, where I have
Jived and resided since 2006. J am not a resident or domiciliary of any other state, and
I do not own or maintain any other homes. Lefthander Marketing. Inc., is an Jllinois
corporation, is a resident of Illinois only, and it maintains its principal place of business
in Illinois. I do not live in Texas. I have never Jived or been employed in Texasr and
neither Lefthander Marketing, Inc., nor I have ever had minimum contacts with the State
of Texas 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
(

is to say, neither Lefthander Marketing, Jnc., nor I are private or corporate citizens,
residents, or domiciliaries of the State of Texas, nor have we ever been. Neither of us
is required to, nor do we, maintain a registered agent for service in Texas, nor have we
ever. Neither of us mainia1ris a place of business in Texas- nor we have any
employees, servants, or agentsin Texas, nor have we ever. Neither of us has committed
any tort, statu tory violation, or breach of any contract or agreement, in whoie or in part,
in Texas. Plaintiffs' causes of action do not arise from or relate to any contacts
Lefthander Marketing, Inc., or I have ever had with the State of Texas sufficient to confer
jurisd.iction over either of us. Lefthander Marketing, Inc., nor I have ever had
continuous or systematic contacts with Texas. Lefthander Marketing, Inc., nor I have
ever purposefully availed ourselves of, or subjected ourselves to; Texas jurisdiction, nor
have we done or committed any acts that wou]d put either of us on notice that we were
subject to the jurisdiction of a Texas court.
NMore specifically, Lefthander Marketing, Inc., is a corporation independent and
separate from me# individually. . Lefthander Marketing, Inc., has never done any
business in Texas, has never sent employees or representatives on its behalf to Texas, nor
has it ever done anything else in, or in any way directed to or related to, Texas.
I, individually, with relation to this transaction, persona11y flew to Texas briefly to pick
up the Headstone. My visit was brief (l spent only a single night in Texas), and it
occurred only ac; a result of the random, isolated, and fortuitous events precipitated by
Holly Ragan over which I, nor Lefthander Marketing, lnc.,-had any control whatsoever.
I, nor Lefthander Inc., have ever advertjsed in Texas or solicited anything
.AfFJDAvrroF WAYNH I..F.NSING IN SurtiQHTOFSPEai\LAPPEARANCF.
f'AGE7
245
(

from Ms. Ragan or any other Texas resident. If fvfs. Ragan had happened to live in
Montana, I would have flown lo Montana to retrieve the Headstone after she sought me
out and convinced me to buy it, and, again, she sought me out in Illinois. She solicited
. me by noflook fOr her-or soHdt her In Tex-aS. -T did not seek
any benefit, advantage, or profit by the happenstance of Ms. Ragan living in and calling
me from Texas or fo11owing up that call with one transaction and one brief trip to Texas
in order to pick up the Headstone.
other words, 1 desired, anticipated, or even imabTined in my
wildest dreams, that I or Lefthander Marketing, Inc., could possibly have been.
subjecting ourselves to the jurisdiction of a by my. picking up my telephone
in Illinois, receiving documents on my fax machine in Illinois, and making. one
eXtremely brief visit_. to Texas to pick up an item I had agreed to buy due lo the
aforementioned calls and documents I received in Illinois.
HI certainly committed no of any tort whatsoever in whoJe or in part_ in the
State of Texas. I, to this day, fully believe that I am the rightful owner of the Headstone
and am prepared to defend that belief. Nonetheless, even in the extremely unlikely
event I am ever proved to be wrong about that, there is no question or dispute
whatsoever that at the time 1 purchased the Headstone, 1 and Lefthander had no
information or reason to believe anything other than the information provided me by
Ms. Ragan. When l received the Headstone land Lefthander had no idea that any other
party, specifically Plaintiffs, were going to make a claim about ownership of
the Headstone. I and Lefthander had never ever even heard of PJaintiffs and deny
AFFIIJAVfJOF WAYNE I..F.NSING IN SUPI'ORT OF Srf.OAL APPF.ARANCF.
PACF.8
246
(_

knowing or having any reason whatsoever to believe that these complete strangers may
claim to have some interest in the Headstone .. I and Lefthander never had any idea that
Plaintiffs may claim to have retained some type of daim to ownership of 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 unlawfully
appropriate tJle Headstone, nor did I intend to deprive the owner of the Headstone of
. any I paid the apparent (and, I believe and contend, then-rightful) owner
of the .Headstone for it after being asked by her to buy it from her. Specifically
. regarding Plaintiffs' vague 'conversion' claim, neither Plaintiffever informed me of
either 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 appeared to be making claims
only on behalf of David Card in his capacity as the executor of Donald Card's estate),
until long after I had already purchased it and possessed it in lllinois. Their claims were
conveyed to me and their demand was made on me in llliuois, and I (rightfully) denied
their claim and refused to. give them the Headstone in 1/lim.,is. any of
P1aintiffs' otherwise farfetChed, pleaded or un-pleaded, accusations of fraud, conspiracy,
or breach of any other duties, against Lefthander Marketing, Inc., or me, for these same
reasons, could not even allegedly have occurred until after I at least had knowledge that
the plaintiffs or anyone else was making a claim of ownership inconsistent with what
I believed (and still do) to be the case (to wit: Hol1y Ragan was the rightful owner of the
AFFiDAVIT OF WA YNF. lF..NSJNC IN SUProRT Of SPECIAl. APPEARANCE
PACE9
247

Headstone when she sold it to me)- which did not happen, if ever, until well after I
bought the stone, and it all could have occurred only in Illinois.
''Regarding any possible claim that I or Lefthander Marketing, Inc., have ever in
any ronceivaJ)le way siibjected ourselves fo the gerierafjl.irlsdictk)n offexas courts,
have not. Again; Lefthander Marketing, Inc._ exits solely and in one building
in .IJlinois. It does not buy or sell items or conduct any business of any nature
whatsoever outside of the State of Illinois, nor has it ever. Its only is to receive
the items ll_oan to it (in Illinois) and to maintain the museum (in Illinois) and collect
admission fees (in Illinois) from .the guests who tour the museum (in Illinois).
''Other than picking up the Headstone in Fort Worth, as described above, I have
been to Texas on1y three tirnes in 1ny entire life. On museum-related business, I have_
been only twice: (l)In April or May 2010, I flew to Texas, rented a Penske truck and
drove to the Pate Museum in Cresson, Texas. The museum was dosing, and I went to
acquire items from its collection, including, it turns out_, the replica space capsule
mentioned by Plaintiffs in their amended petition and a few other NASA-related pieces.
I took over the loan of these NASA items. During that same trip, I went to Heritage and
a warehouse to pick up a stuffed lion, whkh I had purchased through an online auction
(while in Illinois) conducted by Heritage. That is the only time I have been physically
present on a property owned by Heritage in Texas or elsewhere. I have never physically
attended an conducted by Heritage in Texas or elsewhere. All of my purchases
from Heritage have been from 11linois through online auctions; (2) A few months later,
in June 2010, J traveled back to to purchase a Yellow Checker cab, which I
AFFIDAVIT OF WAYNtt LF.NSINC IN SUPPORT OF SPECIAL APPEARANCE
PACE10
248
(

arranged to have shipped to me in Illinois. {Heritage Auctions, by the way, had no
involvement in my acquisitions from the Pate Museum. Heritage, to my knowledge,
was not involved in Pate's liquidation.)
Tfiose-are"ffie-ot.ili-times l.fiave ever been to Texas in any way relatecrto-m:V collecHon ___
of historic items or my mu5eum. Other than that, many years ago, in 1997, I went to a
car race as a car builder in Houston; after tf:te-race, I drove through Dallas for personal
sightseeing and vacation purposes, and.then went back to Illinois .
. -'II have seen documents produced herein by Heritage, which show transactions
I have had with Heritage. All of my purchases through or from Heritage have only ever
been through auctions in which I made purchases over the internet from my
computer in Illinois. To the extent! have ever entered into any agreement associated
With any transactions with Heritage whereby I have agreed to be subjected to
jurisdiction in a Texas forum such agreements were obviously limited to claims made
by Heritage. against me regarding the specific transaction governed by the agreement.
I have never through any such agreement or otherwise agreed to be subjected to
personal jurisdiction, generally, in Texas for ciBims brought against me (or Lefthander
Marketing) by complete strangers for claims unrelated in ariy way to any such
agreements.
Lefthander Marketing, Inc., nor I have ever had or maintained offices,
employees or regular dealings with or within the State of Texas. My visi ts.to Texas have
been only rare and occasional. They certainly have not been frequent or on any sort of
schedule or at regular intervals; they have been on1y occasional and sporadic.
AFFIDA VlT Of WAYNE lENSING IN SUPPORT OF SPECIAL i\PPEAAANCE PACF.ll
249

Lefthander Marketing, Inc., and I certainly have never carried on any 'substantial,'
'continuous/ or systematic' activities in Texas that would have put us on any notice
whatsoever that we were subjecting ourselves to Texas jurisdiction. We never
nor--could-we reasonably have anHdpated,. ever -bel"flg-halecf lnto--courf 1rl
Texas by strangers based on these extremely limited, sporadic contacts with Texas.
Being subjected to jurisdiction in a Texas court would work a significant hardship on
Lefthander Marketing, Inc., and me_, individual1y, and would be unfair in that we would
have to spend unnecessary money, time, and travel to defend ourselves from daims that
rightfully should only be brought against us in our home state of Illinois.
'"I am an individual defendant in the above-styled action, and I am also the
president of defendant Lefthander Marketing, Inc. I am the custodian of the records
both for my own personal business records and for those of Lefthander Marketing, Inc.
Attached hereto as Exhibit B is a one page Jetter /bi11 sale signed by Holly Ragan, as
the Seller/ Owner of the' original headstone from the grave of Lee Harvey Oswald,' and
me, as the Purchaser. Attached hereto as Exhibit Cis a one page. letter/certification,
signed by Holly Ragan, certifying the authenticity of the Headstone. These two pages
of records, which are records both from my own personal business records and also
from the files of Lefthander Marketing, Inc. These said two pages of records are kept
by both Lefthander Marketing, Inc., and mepersonal1y, in the regular course of business,
and it was the regular course of business of both Lefthander Marketing, Inc., and me
personally, for an employee or representative of Lefthander Marketing, Inc., or me
personally, as the case may be (in both cases_ in this instance, I, myself, created, received,
AfFIDAVIT OF WAYNF. UNSJNG IN SUPPORT OF SPEOAL APPEARANCE
PAGE12
250
(

and maintained the records) with know ledge of the act, event, condition, opinion, or
diagnosis, recorded to make the record or to transmit information thereof to be included
in. such record; and the record was made at or near the time or reasonably soon
original."
INC, dividually, and as
President of, and on behalf of, LEFTHANDER
MARKETING, INC.
STATE OF JLLJNOIS
COUNlY OF WINNEBAGO .
SUBSCRIBEDANDSWORNTObeforemethis/St dayof ,
2012, by Wayne Lensing, Individually, and as of, and on. behalf of,
LEFTHANDER MARKETING, INC ..
AFFIDAVIT OF WAYNE lENSING IN 5UPf'OHT OF 51'EClAL APPEARANCF.
a:FICIAL SEAL
AUBRE JCJtM0N
NOTARr PUIIJC STAll Of 1&101
P.n' CCMdiSSIOf E.XPNailtM
PAGE13
251
(
(
....
t

''-;
1N THE ESTATE OJ'
- '
JOJINNYW .. RAGA.N, .
DICUSED
STATE OF TEXAS
COUNlY OF TARRANT
SMAJ..L VfAD AmDAYIT
f
I

. Holly A Rapn ( .. furni.shel the following iDfcJm;mtion to the Court:
. . - . -
I. .-Johony Rapu dial intestate on September 20, 2008 ba Fort WorcJ;a..
T1111Dt Couaty. Texu. age
2. Decedent's domicilo Ml in TIIIBDt County. Texas, where tbe principal part of

Deoede!il's property at the time of his wu situated.
3. "lbt:te Ia JIO appoJmmeot of aepcdemasive pmdq nor
bu ooc: been srantcd. tor tbe 'Oec:edmt'a
.. . . ...
4. "Deoodeot 4Jed mom tblm tbiJty (30) clays priOJ' tD tbc filial of this Small Estl!e
AmdiViL
5. "The of aU oftbe JaloWD asscti of the Decedent, as o!the ofhit death.
DOl including tbc oorexWptproperry, doelnotc:xcCed SSO.OOO.OO,.IIld lbose Dozlexcmpt
auets the known liabilities oftbe Esta1e, exclusive ofliabl6ties ltlCUI'Cd b)' homestead ad
JUOJMD1Y.
. 6. . ltJhc ooly re8l property of the Esta:c of the .Dec*nt is a homcsteed whidl is
commtmitypoptny- JOC4led at l904 Tamwonb.Rd . Fort Wonh, County. Texas 761 16 .
. Tho Eltu'siDtt:test in aaidbomesleldh valucdaSl 09)50.00, whk:b delcribed
pfoiJowa:
Block 61 Lot Ridjlea Addidcm. to 1be City ofPort Worth. TIUhiDt
COUld)', Texas. more eoJJUDODly known u 3904 TamWOJ"'h Rd.1 Fort
Worth, Tanmt CoUilly, Tau 76116.
OF JOHNNY W. it,fJAN. DECEASED
SMALL DTAU AFFIDAvrr

TRUe AND CDAAICT COPY 0'
ORtGWA\. RlCORO RlEO Stt
T.AAIUNJ
SUlANNf. WENDlRsOtl. COUNTY CLEJ!K
SCANNED
NOV o7 2108_
Exh_ibit A to Lensing Affidavit
FAG:Il OP4
SCANNED
DEC 05 2BD8
. 252
(
.
(
..
.

(..,!
&--
. .
1. Decedent' marital histocy. WBS u foUa\w: Decrdeut wu married-three tUm:! in his
lift:timc. his fim 1oJa 197J ad they ODor about- l 913.
wu to Linda R.apa on or about J974and 1_97-'. He
then mamed HoUy A. Ragan_ in Aprill979 and to her uotil hi! death.
8. "I>ecedeDt dic1 not havo or adopt uy clbldreD and DOt take any children into
.
decedeufs home or any childJea. oept: Nooo.
9. RapD, \1Jbosedattofbbth isJanua!)'4, 1916
aud it .P.O. Box 931.-StephmvUJc.Texu 76401.
JO. '"Deccdalrs falhrr 'WU: Albert LartiD wa! Aupt 27,
1919.
11. ..Decedent had the lopowini siblinp:
"Name: Uada Sue Walker . .
Daleo Bbtb: M.y 17. 1941 .
ofPctDta! Billie IDd Albezt Larkin Rapn
. Cuuad Aclchu; P.O. Box Texas 76401
']2. nne DaiiHrJ, ad.drella. m1Cyan1-limil1 lGa Jbowi:rJg rcbdignship of each
. .
DiStributee to ilia Decimt, lhl%0 oftbo Estm ui whfcb eecb ia c:n1itlo:t me a
folloWJ:
-Name: Holly A. Rqaa
Addreu: 3904 TmaworlhRd . Fort Tcaaa 76116
.ReJISiOIIIhip: Widow
Stmll: .AduJl
ShLw of Bstate: 100%
13. AU oftbe k.aown llieti.SliabiUties ofl>eicedell:l's Ella&c ere u follows;
A.SUD
Dcecdptlozi: suamc..
bPI: CoJDmUDity and P.ieaUn Pmpmty
V"aluc: $50,000.00 total. ofwfiicll $25,000.00 is abarc.
&cumlnDccl: . $21,000.00 .
pe.aipdcE Ecplity in RocrtatioDII Vehicle .
Qommmuty and Exe_mpl Propeny
Value: $10.000.00 total, of which $5,000.00 il Dctcdenfs shan.
Putdlasc loan.
Exhibit A to Lensing Affidavit
253
. "_ .. .
' .

...
Dcsc:ription! Perspnal LHO Stone. and personal effects
'JYpc: Sepame, commUD.tty. aDd exempt
Value: StO,OOO.OD total. of which S7,.SOO.OO is Decedent'' share
Encumbrances: Ncme .
... LIABILITIES __
None except those listed above.
"Dbtributce stateS tbal the facti contained in this Aftidavit are true and prays that. this
Affidavit be tiled in the Small Est* Records; that lhc: same be appovcd by the Court; and 1hcClerlc:
issue certified copies thereof in mdu to allow the Distributet che same to penont owiq
..
money 10 1he F.snd.e ofJchnay W. RapD. or ac:dn& as regil'trll. flduciaey, or
of anyone having of lnttzest. u\debtt:dness, property, or olhet right .to.ufd
Estate.'"
COUNTY OFT ARRANT
I
NowyPublic:, S1lliC of Texas
254

-
I
. . ., .__)
. ......
STATE OF TEXAS
COUNTY OFT .ARRANT
I
I

. SWORN TO SUBSCRIBED ME by Olm Bcmdas. dna '-/ day of
eeteMr. 2008, to certify which wiCDeU rNf 1umd IDd leal of offior, m the slated. .
J16vornber . .

Auomey ror HolJ)' A. RapD
Stata Bar No.: 19147500
507 W. CIDiral
Fort Worth. Tcxu 76164--9135
(IJ7)62S-8866
Facwmile: (81 7)
EST .ATE OF JOHNNY W.IUOAN. DECtSED
SMAlL ISTATE ApPIDAVJT
fl...rw., AJ. A.L,4.p
Notay Public, sr. of Texas
4\
-w A CERTIPIED _
J.? - .20 off
HDEASpN. cOIRDi' ciWl

--- [){lou
. .
PAGC40'F4
I
.I
255
(

'Htstor-Jc-Auto Attraction-s -
.a\.
13825 Metric Drive, Roscoe, ll61073
Ph_Qoe_: ... . .. . .. .
April30, 20l0
f. Holly Ragan, am selring. to Mr. Wayne lensing, for the
sum totaJ of $45.000.00 the original headstone from the grove
of Lee Harvey Oswafd.
The original stone is marked "'lee Harvey Oswald Oct 18
1939 Nov 24 1963".
Selfer/C9 ner
HoflyRogon
Date
Dote
Exhibit B to Lensing Affidavit
256
(
(

---_ . .- -.....
13825 Metric Drive; Roscoe, ll61073

Aprif 30. 2010.
I; Holly Ragon, om selnng, to Mr. Wayne Lensing, the
original headstone fromfhegrove of_lee Harvey Oswofd.
The J 30# stone was stolen rn 1967 from the Rose Hm
Memorial Buriol Pork in Forth Worth. Texas. On November 22nr:1
four years to the dote of the ossosslnotipn of. President
Kennedy; on anonymous man recovered the stone in
Oklahoma. The ston.e was returned to leesr Mother.
Morquerife Osword, who hqd put the headstone on the grave
orfginoJiy. During the period of time It was missing she had a
new one pu1 on the grove with only the word oswald., on
lhe orJglnqJ stqne was marked "'lee Harvey Oswotd Oct 1 B
1939 Nov 24 1963.... She put .the oriQinal headstone under a
crawl space in the home she Hved in. Morquerlte ded Jn 1981
and Js burJed next to her son with no headstone ot off.
My family purchased the home and found the original
headstone years tater. After having the original headstone for
many years we are now selling It to Wayne to be a
part of the Kennedy Assassination Display at the Historic Auto
Attractions Museum.
/]/. , _.... .
. -.._,LJ:W. ,,a-;..;r-,-"-

Holly Ragon
Dote
c to Lensing Affidavit
257
EXHIBITD
Plaintiffs' Second Amended Petition and
Request for Declaratory Relief (without exhibits)
CAUSE NO. 12-06631
DAVID CARD and CLEO LOWE IN THE DISTRICT COURT,

PLAINTIFFS, _

v.

HOLLYRAGAN, WAYNELENSING, 298TH JUDICIAL DISTRICT
LEFTHANDER MARKETING, INC.,
D/B/A HISTORIC AUTO
ATTRACTIONS AND
HERITAGE AUCTI<?NS, INC.

DEFENDANTS. DALLAS COUNTY, TEXAS
PLAINTIFFS' SECOND AMENDED PETITION AND REQUEST FOR
DECLARATORY JUDGMENT
Filed
12 October 18 P3:59
Gary Fitzsimmons
District Clerk
Dallas District
COMES NOW the PLAINTIFFS, DAVID CARD and CLEO LOWE ("PLAINTIFFS"),
by and through their attorneys, and for . this Second Amended Peti.tion and Request for
Declaratory Judgment would show the Court as follows:
DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovezy under Level 2 of Rule 190.2 of the Texas
Rules of Civil Procedure.
PARTIES
2. Plaintiff David Card is an individual and a resident of Dallas County, Texas.
3. Plaintiff Cleo Lowe is an individual and a resident of Tarrant County, Texas
4. Defendant Heritage Auctions, Inc. ("HERITAGE") is a corporation established
under the laws of the State of Texas, who maintains its principle office at 3500 Maple Avenue,
17th Floor, Dallas, Texas 75219, who will be served upon its registered agent or attorney of
record in this cause in accordance with the Texas Rules of Civil Procedure.
EXHIBIT
PLAlNTIFFS' SECOND AMENDED PETITION- Page 1
]) 112
5. Defendant Holly Ragan ("RAGAN") is an individual and a resident of Tarrant
County, Texas, upon whom service i ~ not necessary at this time as Defendant is already before
this court. This ainended petition will be served upon her attorney of record in this cause in
accordance with the Texas Rules of Civil Procedure.
6. Defendant Wayne LENSING ("LENSING") is an individual and a resident of
Illinois, upon whom service is not necessary at this time as Defendant is already before this
court. This amended petition will be served upon his attorney of record in this cause in
accordance with the Texas Rules of Civil Procedure.
7. Defendant Lefthander Marketing, Inc. (the ''MUSEUM") is a corporation
established under the laws of the State of lllinois, doing business as Historic Auto Attractions,
upon whom service is not necessary at this tllne as Defendant is already before this court. This
(
amended petition will be served upon his attorney of record in this cause iri accordance with the
Texas Rules of Civil Procedure.
VENUE AND JURISDICTION
8. Venue is p r o p e ~ in Dallas County pursuant to Texas Civil Practice. & Remedies
. .
Code 15.002 and 15.005 because (a) pursuant to Texas Civil Practice & Remedies Code
15.002(3); all lawsuits shall be brought in the county ofthe defendant's principle office in this
state. H e r e ~ Df?fendant HERITAGE maintains its principle office in Dallas, Texas. Under Texas
Civil Practice & Remedies Code 15.005, if venue is proper against one or more
DEFENDANTS. in Dallas County; then venue is proper in Dallas County as to all
DEFENDANTS, if PLAINTIFFS' claiins against all DEFENDANTS arise out of the same
transaction, occurrence, or series of transactions or occurrences. Here, PLAINTIFFS allege the
claims of aiding and abetting in the commission of a tort and of civil conspiracy against
PLAINTIFFS' SECOND AMENDED PETITION- Page 2
113
..,... ..--.
( .
(
HERITAGE, as set forth below, and all claims set forth herein against all DEFENDANTS arise
out of the same transactidn or occurrence, or series of transactions or occurrences.
9. This Court has subject matter jurisdiction over this matter pursuant to Texas Civil
& _:R_emedies 37.001, et seq.,.in the .. the
interests in personal property to which PLAINTIFFS' claim sole ownership and toward which
DEFENDANTS have acted and continue to act adversely. Because Plaintiffs seek a declaration
of the exclusivity and/or superiority of their claim of ownership in the personal property that is
. the subject this suit, to the exclusion of the claims or rights of all others (namely,. a grave
marker that once marker the burial site of Lee Harvey Oswald), suit is brought against all three
DEFENDANTS due to .the same or circumstances, transactions and legal Should
supplemental relief be sought pursuant to Texas Civil Practice & Remedies Code 37.011,
additional subject matter jurisdiction exists pursuant to supplemental causes of action for
conversion and other violations of Texas law.
10. This Court has both general and specific jurisdiction over the non-resident
defendants, MUSEUM and LENSING, under the terms of the United States Constitution and the
Texas long.-arm statute for the.reasons set forth below.
11. Under the Texas long-arm statute, Texas courts have the power to exercise
personal jurisdiction over a nonresident defendant who does business in Texas. The statute
. .
provides thatdoingbusiness in Texas includes, among other things, where a party contracts by
. . . . .
mail or otherwise with a Texas resident and either party is to perform the contract, in .whole or in
part, in Texas, or where the defendant commits a tort, in whole orin part, in Texas. Here, on
information and belief, the non-resident defendants negotiated and contracted, by mail phone or
otherwise, with Defendant Ragan, a Texas resident, directly, through, or as the result of the
114
c--
actions of HERITAGE, a Dallas, Texas-based company, the sale and purchase of the grave
marker, and performed the contract, in whole or in part, in Texas, when traveled to
Texas to pay for and/or take possession of the grave marker (see PLAINTIFFS' Exhibit A).
th_e
and MUSEUM wrongfully exercised dominion or control over the grave marker when
taking possession of the grave marker in Texas, and (2) theft, under the Texas Theft Liability
Act, when LENSING and MUSEUM unlaw:fu?y appropriated t;he grave marker in Texas, by
physically exercising dominion and control over the grave marker in Texas, without the effective
consent of PLAINTIFFS, owner of the grave marker, with the express intent to permanently
deprive PLAINTIFFS their right to possession of the grave marker. All of PLAINTIFFS'
claims in this suit arise directly from DEFENDANTS' actions as set forth
This Court's exercise of jurisdiction over MUSEUM and LENSING comports with the
requirements of federal due process. Personal jurisdiction over nomesident defendants is
constitutional when two conditions are met: (1) the defendant has minimum contacts
with the forum state and (2) the exercise of jurisdiction comports with traditional notions of fair
play and substantial justice. Here, and/or MUSEUM, through LENSING, conducted
negotiations with Texas resident; Defendant RAGAN, facilitated by HERITAGE, and traveled to
Texas to perform the terms of a contract pertaining to, to make payment for, and to take
possession of, the grave marker. In doing so, said defendants purposely directed their activities
toward Texas and purposely availed themselves o(the privileges of conducting activities in
Texas. All causes_ of action pled herein arise out of or are related to those contacts with
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, the
PLAINTIFFs' SECOND AMENDED PETITION- Page 4
115
(
non-resident defendants established sufficient contacts with Texas to confer personal jurisdiction
upon this Court, and the exercise of jurisdiction over nonresident defendants LENSING and
MUSEUM comports with notions of fair play and substantial justice.
Moreover, on information and belief, LENSING and/or MUSEUM have had frequent and
pervasive contacts with Texas in contracting for the purchase of, leasing/borrowing, and taking
possession or, numerous items related to the assassination of President John F. Kennedy and/or
to Lee Harvey Oswald, and other items (e.g., NASA related items) purchased in Texas or leased
or borrowed from individuals or entities located in Texas. Historic Auto Attractions, owned by
LENSING and/or MUSEUM, currently displays and advertises the display of such items (see
PLAINTIFFS' Exhibit B). In at least one such transaction, LENSING, or LENSING on behalf of
MUSEuM, executed a written contract with Heritage agreeing that any dispute arising under
(
said contract would be resolved under the laws of the state of Texas, in Dallas, County, Texas.
These numerous and consistent, ongoing contacts"' support the court's exercise of personal
jurisdiction over the non-resident defendants under the due process/minimum contacts test.
FACTS.COMMON TO ALL COUNTS
12. PLAINTIFFS' parents Donald and Ida Mae Card were the sole owners of a grave
marker (the "grave maker") that had once marked the burial site of Lee Harvey Oswald.
13. At some time prior to 1987, in recognition of the historical value of the grave
marker, and fearing that it was not secure at the Card home, a bailment contract was entered into
between PLAJNTIFFS' parents"' Donald and Ida Mae Card, as bailor, and Ida Mae Card's sister
and brother-in-law; Billie Ragan and Albert Ragan, bailees, for the safekeeping of the grave
marker at Billie and Albert Ragan's residence.
116
/
\
14. At some point prior to 2001, Johnny Ragan, who was the son of Billie and Albert
Ragan and was PLAINTIFFS' cousin/step-cousin, contacted Plaintiff LOWE suggesting that the
grave marker was not secure in Billie Ragan's garage since the premises had recently been
take the grave marker to his home for safekeeping. Johnny Ragan moved the grave marker to his
residence with the knowledge and permission of Donald and Ida Mae Card and PLAINTIFF
Lowe; drectively substituting himself as bailee in the bailment agreement referred to above or,
alternatively, establishing a new bailment agreement between him and the Defendant
RAGAN had actual knowledge of the bailment agreement, knew that she and her husband,
Johnny Ragan were holding the grave marker in safekeeping for the and knew that the
grave marker was on the premises where she resided, and that ownership in the grave marker
rested in exclusively in PLAINTIFFS.
15. Mer both Donald and Ida Mae Card died, title to all personal property owned by
them, including the grave marker, _passed by testamentary devise t<? David Card
and his step-sister, Cleo Lowe.
16. Regularly and intermittently during the tenure of the bailment, PLAINTIFFS' and
other family members reasonably believed that the grave marker was beinghqused at Defendant
RAGAN's residence for the benefit of PLAINTIFFS, and were given no reason to believe
otherwise.
17. On several occasions after !ohnny Ragan's death, PLAINTIFFS, through Plaintiff
Cleo Lowe, contacted Defendant RAGAN to make demand for and arrange for the return of the
grave marker to PLAINTIFFS. Defendant RAGAN expressly denied having possession of the
\
grave marker and declared ignorance as to its whereabouts. In subsequent months, PLAINTIFFS
117
made inquiries between one another and other members to ascertain the whereabouts of the grave
marker, but all confirmed that to the best of their knowledge, the grave at Johnny
Ragan's property being held in safekeeping for PLAINTIFFS, and that if the grave marker was
18. In May, 2011, PLAINTIFFS became aware of an exhibit in an lllinois museum
that purportedly included the grave marker. Upon further investigation, PLAINTIFFS learned
that HERITAGE had facilitated contact between Defendant LENSlNG and Defendant RAGAN,
and assisted in arranging the sale of the grave marker to LENS1NG or MUSEUM by RAGAN,
and that as a result of these contacts, LENSING, individually or LENSING on behalf of
MUSEUM, negotiated a purchase of the grave marker from RAGAN, and traveled to Dallas to
complete the transaction and take possession of the grave marker.
(
19. LENSING, MUSEUM and HERITAGE had actual or constructive notice that
'
ownership of the property rested in other than RAGAN. The caption on the grave
marker that reads "LEE HARVEY OSWALD", was sufficient notice that RAGAN was not the
owner of the stone or, alternatively, should have prompted LENSiNG and/or MUSEUM to
perform a reasonable amount of due diligence to ascertain the true ownership of the grave
marker. LENSlNG and MU:SEUM performed no such due. diligence, instead choosing to
willfully ignore the obvious question as to the 9wnership of the grave marker. Moreover,
PLAINTIFFS allege, upon information and belief; that HER1TAGE, after deliberate
investigation and inquiry; knew, or should have known that ownership of the grave marker did
not, or likely did not, lie with Defendant Ragan.
PLAINTIFFs' SECOND AMENDED PETrn:o:N- Page 7
118
(
20. PLAINTIFFS made demand upon LENSJNG for return of the grave marker to
PLAINTIFFS. LENSING refused to retrim the grave marker to PLAINTIFFS and made an
unequivocal c1aim of ownership of the grave .marker.
CAUSES OF ACTION
21. Each cause of action. set forth below incorporates all of the allegations outlined
above as if fully set forth below.
22. All conditions precedent have been performed or have occurred. PLAINTIFFS
plead their claims in the alternative and will elect prior to judgment the theory of recovery that
provides the maximum recovery for .
A. REQUEST FOR DECLARATORY JUDGMENT
23. Pursuant to Texas Civil Practice and Remedies Chapter 37, PLAINTIFFS seek
from the Court a declaration that PLAINTIFFS are the sole owners of the grave marker.
from t4e Court a declaration that Defendant Holly RAGAN at no time had an ownership interest
in the grave marker.
from the Court a declaration that Defendant LENSING and Defendant MUSEUM did at no time
acquire, and not now have any ownership interest in the grave based in part, but not
limited to:
a. Under comrr10n law, a seller of property can only convey to a buyer that interest
that the seller owns in the property conveyed. Here, Defendant Holly RAGAN
had, at no time, any ownership interest in the grave marker and could, therefore,
not convey any ownership.interest to LENSING or the MUSEUM;
b. common law, where a buyer purchases personal property from a seller who
is not a merchant selling the property in the ordinary course of the seller's
business, the buyer cannot claim the protections afforded a bona fide purchaser
119
(
(
\
B.
for value. Here, defendant Holly RAGAN was not, at the time of the sale of the
grave marker to LENSING or the MUSEUM, a merchant;
c. Under common law, the purchaser of stolen property obtains no ownership in the
purchased/stolen item.
BREACH OF CONTRACT- RAGAN
26. In the alternative to other counts, Defendant RAGAN breached her bailment
contract with PLAINTIFFS.
27. A valid bailment contract existed between PLAINTIFFS and Johnny Ragan. .
28. Defendant RAGAN intentionally and knowingly assumed the responsibilities
previously held by her late Johnny Ragan, under the bailment agreement;
29. Defendant RAGAN failed to perform under the contract, including, but not
limited to, by breaching her obligations. to hold the grave marker in safekeeping for
PLAINTIFFS.
30. PLAINTIFFS were damaged by Defendant RAGAN's breach of the contract.
C. BREACH OF FIDUCIARY DUTY- RAGAN
31. In addition to other counts, Defendant RAGAN breached her fiduciary duty to
PLAJNTIFFS.
32. RAGAN was PLAINTIFFS' fiduciary and, therefore_, owed PLAINTIFFS

33. RAGAN breached her fiduciary duties to Plaintiffs.
34. RAGAN's breaches of fiduciary duties injured PLAINTIFFS and benefited
RAGAN:
35. RAGAN's breaches of fiduciary duties were with malice; therefore, exemplary
damages are appropriate.
PLAINTIFFs' SECOND AMENDED PETITION- Page 9
120
(
(
D. COMMON LAW FRAUD- RAGAN
36. In addition to other counts, Defendant committed common law fraud against
PLAINTIFFS.
37. _ i_T!l.Il_ugi!)' to.
facts to PLAINTIFFS, including but not limited to the presence of the grave marker on her
property, her unequivocal denial ofkp.owing the whereabouts of the grave marker at or about the
same tinle she was soliciting offers to purchase the grave marker from one or more buyers, and
her failure to disclose her intent and ultimately her completion of the act of unlawfully
surrendering possession of the grave marker to LENSING and/or MUSEUM.
38. :R!\GAN had a duty to disclose- those facts to Plaintiffs.
39. The facts were material.
40. RAGAN knew that PLAINTIFFS were ignorant of her intentions and actioris and
RAGAN actively concealed those facts from PLAINTIFFS.
41. RAGAN was deliberately silent when she had a duty to speak.
42. _ By failing to disclose the facts, RAGAN intended to induce PLAINTIFFS to take
some action _or refrain: from acting, including but not limited to not taking further steps toward
her in demanding the return of the grave marker to PLAINTIFFS.
43. . PLAINTIFFS relied on RAGAN's nondisclosure.
44. -PLAINTIFFS were injured as a result of acting without the knowledge of the
undisclosed facts.
45. RAGAN failed to disclose the material. fact with the intent that PLAINTIFFS rely
on the failure to disclose.
46. PLAINTIFFS reasonably relied on RAGAN's failure to disclose a material fact.
121
47. PLAINTIFFS were damaged by their reliance. Additionally, because of
RAGAN's fraud, exemplary damages are appropriate.
E. CONVERSION- RAGAN, LENSING, AND MUSEUM
48. In the alternative to other counts, Defendants RAGAN, LENSING and MUSEUM .
wrongly converted PLAINTIFFS' property;
49. The grave marker was and is PLAINTIFFS' personal property;
50. RAGAN, LENSING and MUSEUM wrongfully exercised and LENSING and
MUSEUM continue to exercise dominion or control over the grave marker;
51. PLAINTIFFS suffered and continue to suffer mjury as the result of RAGAN's,
LENSING's and MUSEUM's wrongful actions;
52. PLAINTIFFS are entitled to immemate possession of the property;
(
53. RAGAN's conversion of PLAINTIFFS' property was With malice; therefore,
exemplary damages are
F. THEFT. OF PROPERTY- RAGAN, LENSING and MUSEUM
54. In the alternative to other Defendants RAGAN; LENSING and MUSEUM
committed theft of PLAINTIFFS' property.
55. PLAINTIFFS brmg this action .under the Texas Theft Liability Act for the
unlawful appropriation of property under Texas Penal Code section 31.03;
56. PLAINTIFFS were and are entitled to possession of the grave marker;
57. Defendants RAGAN, LENSING and MUSEUM unlawfully appropriated
PLAINTIFFS' personal property m violation of Texas Penal Code section 31.03 when
Defendants RAGAN, !;ENSING and MUSEUM wrongfully exercised dominion or control over
the grave marker in as the result of the illegal and ineffective sale of the grave marker by
122
RAGAN to LENSING and/or MUSEUM without the effective consent of PLAINTIFFS, owner
of the grave marker, and with the express intent to deprive PLAINTIFFS of their right to
possession of the grave marker;
. __ __ :_
injury to PLAINTIFFS.
59. Upon proof of actual dainages, PLAINTIFFS are entitled to additional statutory
damages of up to $1,000.00 from Defendants RAGAN, LENSING and MUSEUM under Texas
Civil Practice & Remedies Code section 134.005(a)(l).
60. PLAINTIFFS seek unliquidated damages within the jurisdictional limits of this
court.
61. PLAINTIFFS' injurytesulted Defendant RAGAN's malice .or actual fraud,
which entitled PLAINTIFFS to exemplary damages under Texas Civil Practice & Remedies
Code section 41.003(a).
G. CIVIL CONSPIRACY- HERITAGE, RAGAN, LENSING AND MUSEUM
62. HERITAGE, RAGAN, LENSING and MUSEUM were members of a
combination of two or more persons.
63. The object of the combination was to accomplish an unlawful purpose or a lawful
purpose by unlawful means,_ including, without limitation, the conversion of the grave marker
and/or the commission of other torts as set forth herein.
64. HERITAGE, RAGAN, LENSING and MUSEUM and other co-conspirators
had a meeting of the minds on the object or course of action.
65. One or more, or each of the conspirators, HERITAGE, RAGAN, LENSING or
MUSEUM committed an unlawful, overt act to further the object or course of action.
123
(
66. PLAlNTIFFS suffered injuries as a pro:xllnate result of the wrongful acts.
H. ASSISTING OR ENCOURAGING IN COMMISSION OF A TORT- HERITAGE
6.7. One or more defendants, RAGAN, LENSING and/or MUSEUM committed a
. fraud, and/or of fiduciary duty.
68. HERITAGE had knowledge that RAGAN'S and/or LENSING'S and/or
. MUSEUM'S conduct constituted a tort.
69. HERITAGE had the intent to assist RAGAN, LENSING and/or MUSEUM in
commission of the tqrt.
70. HERITAGE gave RAGAN, LENSING and/or MUSEUM assistance or
encouragement.
71. HERITAGE'S assistance or encouragement was a substantial factor in causing a
the tort.
ATTORNEYS' FEES
PLAlNTIFFS are entitled to and seeks recovery of its reasonable attorneys' fees
and costs of court against HERITAGE, RAGAN, LENSING and MUSEUM pursuant to Chapter
37 of the Texas Civil Practice and Remedies Code, RAGAN pursuant to Chapter 38 of
the Texas Civil Practice & Remedies Code, and against each and every DEFENDANT, jointly
and severally, pursuant to equitable principles.
REQUEST FOR RELIEF
73. For the foregoing reasons, PLAlNTIFFS respectfully request that HERITAGE,
RAGAN, LENSING, and MUSEUM be cited to appear and answer herein and prays for the
. following relief:
PLA.INTIFFS' SECOND AMENDED PETITION- Page 13
124
(
(
(a) Judgment against HERITAGE, LENSING, and MUSEUM, jointly and
severally, for actual damages, and
(b) Judgment against RAGAN for exemplary damages;
(c) . Judgment against RAGAN for disgorgement;
- - . .. --.. . . - ...._.,__ -- --
(d) A declaratory judgment that RAGAN did not have authority to enter into a
contract with LENSING and/or the MUSEUM, that the sale of the grave marker by
RAGAN to LENSING and/or MUSEUM is void;
(e) Judgment for pre-judgment and post-judgment interest at the maximum rate
allowed by law;
(f) Judgment against HERITAGE, RAGAN, LENSING and MUSEUM for
reasonable attorneys' fees and costs of Court;
(g) Judgment ordering . the return of the grave marker by LENSING and the
MUSEUM to PLAINTIFFS, and
(h) Such other relief to which PLAINTIFFS are justly entitled.
Respectfully submitted,
Wm. NICHOLAS MANOUSOS
3812 N. Hall Street
Dallas, Texas 75219
214-740-1711 (Telephone); 214-740-1744 (Fax)
ATTORNEY FOR PLAINTIFFS
125 .
(
CERTIFICATE OF SERVICE
I certify that a true copy of the above was served on each attorn,ey of record or party in
accordance with the Texas Rules of Civil Procedure on October 23,2012.
Wm. Nicholas Manousos
PLAlNTIFFs' SECOND AMENDED PETITION- Page 15
126

Wayne Lensing Appellants Brief

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Wayne Lensing Appellants Brief

Uploaded by

Copyright:

Available Formats

NO.

You might also like