No CV IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS. BRAD CAMAC, Appellant, VS. JORDAN DONTOS, JENNIFER DONTOS & CRAVE, LLC, Appellees.

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1 No CV IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS 5th Court of Appeals FILED: 9/26/11 14:00 Lisa Matz, Clerk BRAD CAMAC, Appellant, VS. JORDAN DONTOS, JENNIFER DONTOS & CRAVE, LLC, Appellees. APPELLEES BRIEF GARY E. SMITH, P.C. GRAHAM, BRIGHT & SMITH, P.C. Gary E. Smith, State Bar No Two Lincoln Centre 5420 LBJ Freeway, Suite 300 Dallas, TX Facsimile: APPELLANT REQUESTS ORAL ARGUMENT

2 IDENTITY OF PARTIES AND COUNSEL Plaintiff - Appellees Jordan and Jennifer Dontos Attorneys for Appellees/Plaintiff Gary E. Smith Gary E. Smith, P.C. Graham, Bright & Smith Two Lincoln Centre 5420 LBJ Freeway, Suite 300 Dallas, TX Telephone Facsimile Defendant- Appellant Brad Camac Attorneys for Appellant/Defendant Mr. John R. Henderson Wilson, Elser et al LLP 901 Main Street, Suite 4800 Dallas, TX BRIEF OF APPELLEES PAGE 2

3 TABLE OF CONTENTS Identify of Parties and Counsel Table of Contents Index of Authorities (cases, statutes and rules) Statement of the Case Issues presented Statement of Facts Summary of the Argument Standard Review Argument Issue Whether Trial Court correctly denied Appellant s Special Appearance because Appellees both pleaded and proved that he had sufficient minimum contacts with the State of Texas which were specific, and went to the heart of the various torts alleged by Appellees Conclusion Prayer Certificate of Service BRIEF OF APPELLEES PAGE 3

4 INDEX OF AUTHORITIES Cases BMC Software Belgium, N.V., v. Marchand rd 83 S.W.3 789, 794 (Tex.2002) , 16 Hansen v. Denckla, 357 U.S. 235, 253, 78 S.Ct (1959) Helicopteros Nacionales de Colombia, S.A. v. Hall 466 US. 408, , 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct 154, 90 L. Ed. 95(1945) , 18 Michiana Easy Livin Country, Inc. v. Holten 168 S.W.3d 777, 790 (Tex.2005) Reiff v. Roy 115 S.W.3d 700, 705 Tex.App.-Dallas 2003, pet. denied) , 16 Siskind v. The Villa Foundation for Education, 642 S.W. 2d 434, 437 (Tex. 1982) Wolf v. Summers-Wood, L.P. 214 S.W.3rd 783(Tex App. Dallas 2007) Statutes and Rules Tex. Civ. Prac. & Rem. Code Ann (Vernon 1997 & Supp.2006) , 16 Tex. Civ. Prac. & Rem. Code Ann BRIEF OF APPELLEES PAGE 4

5 No CV IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS BRAD CAMAC, Appellant, VS. JORDAN DONTOS, JENNIFER DONTOS & CRAVE, LLC, Appellees. BRIEF OF APPELLANTS TO THE HONORABLE COURT OF APPEALS: Come now Jordan and Jennifer Dontos, Appellees, Plaintiffs in the trial court, and file this Brief of Appellees, and would respectfully show the Court the following: BRIEF OF APPELLEES PAGE 5

6 STATEMENT OF THE CASE Appellant s Statement of the Case is adequate. BRIEF OF APPELLEES PAGE 6

7 ISSUES PRESENTED Issue Whether Trial Court correctly denied Appellant s Special Appearance because Appellees both pleaded and proved that he had sufficient minimum contacts with the State of Texas which were specific, and went to the heart of the various torts alleged by Appellees. BRIEF OF APPELLEES PAGE 7

8 STATEMENT OF FACTS (Affidavit of Jordan Dontos (CR90-97)) 1. Appellant is an individual working, at all material times, through the 24Seven offices in Dallas County, Texas. He is or was at all material times, Vice President of Franchise Sales for Defendant 24Seven and the principal spokesman and actor for said Defendant as well as the other Defendants named (after Defendant Greg Hatch left the company) in the perpetration of the shell game that is the gravamen of this suit. He was in charge sales at the Dallas office of 24Seven. He met with Appellees in Dallas on several occasions and communicated with them constantly by phone and both to and from Dallas, Texas. (CR90) 2. The first meeting was March 2, 2007, before Appellees entered into any agreements with any of the other Defendants in the case. At that time, he knew or should have known that 24Seven was in dire financial straits, that it was in or nearing receivership and that the Routes (as defined below) were not available. He had a duty to pass this information on to Appellees but failed to do so. (CR91) 3. On or about March 29, 2007, Appellees, as Prospective Franchisees and Defendant 24Seven as prospective Franchisor entered into a 24SEVEN VENDING (USA) LIMITED FRANCHISE DEPOSIT AGREEMENT herein after referred to as the Agreement. (CR91) 4. The purpose for the Agreement was to document the terms and conditions under which Appellees would deposit the sum of $175,000 and 24Seven (a subsidiary of the VTL Group) would reserve Vending Routes 116 and 117 of which all the vending machines were represented as being located in within the city limits of Farmers Branch and Carrollton, Texas. Routes 116 and 117 were specifically designated routes of established vending machines and each route was represented as generating a minimum average weekly gross sales of $6,730. Routes 116 and 117 had been BRIEF OF APPELLEES PAGE 8

9 promised to Appellees and formed the inducement to enter into and the core consideration for the Agreement. (CR91) 5. Based upon assurances that these Routes would be forthcoming by Appellant, Appellees deposited the $175,000, sold their house in Seattle, Washington, quit their jobs and moved to Carrollton, Texas. (CR91) 6. Appellees moved to Dallas on July 3, From then until closing, Appellees were in constant contact with Appellant, by both phone and . He was handling the sale of the franchise rd to Appellees. Before July 3, he called Appellees and ed them from Dallas. He told them that rd I am in Dallas all the time. After July 3, Appellees were in Dallas and all of the calls and s came to them in Dallas. Some of them were from Appellant, in Dallas. Appellant seemed anxious to hurry the closing and Appellees got the impression that he needed to get it closed to collect his commission. (CR91) 7. After being informed by a fellow franchisee that 24/Seven was being sold to Bacon Whitney, Appellees immediately contacted Appellant (via phone from Dallas) with questions and concerns as to 1) why Appellees were never made aware of the sale and 2) the potential impact it would have on their business, which they were being pressured (by Appellant) to close as fast as possible. He was not forthcoming with any details about the sale, but assured appellees that it was good for them because they [Halpert & Denny, the financial backers for Bacon Whitney] were very well-funded so Appellees wouldn't have to deal with the financial or processing deficiencies of 24/Seven. He presented it as a more attractive alternative to 24/Seven as if Appellees were getting out of a bad deal which was more alarming given the fact Appellees were never under the impression there was anything wrong with 24/Seven to begin with. (CR91) BRIEF OF APPELLEES PAGE 9

10 8. After that phone call, Appellees met Appellant at the company warehouse in Dallas. Again Appellant indicated the sale was best for everyone without giving any specifics. Just that Appellees would be better off because they would be able to better focus on the franchise model and franchisee needs, as well as obtain more clients and routes to sell. Appellant and Appellees and went to dinner that evening and at the bar, while they waited for a table, Appellees again tried to get information about the sale and Appellant tried to avoid the subject by simply offering the same re-assurance that the sale was nothing but positive and not to worry. Appellant was always uncomfortable talking about it and relied on trying to change the subject as opposed to giving Appellees valuable information. (CR92) 9. If Appellant had given Appellees any information it would have changed their decision to move forward with the deal. Appellant never indicated that the sale would not even include Appellees franchise as an asset, (in fact, to the contrary, Appellant lead them to believe it would) that they weren't even really part of the same group in Dallas even though they were managed as such, and he certainly never told Appellees of the financial difficulties at 24/7 at any point in the sales process. Had the fellow franchisee never notified Appellees, they never would have known. Appellant never told Appellees that the Routes were not and never had been available. (CR92) 10. But for Appellant s misrepresentations and omissions, Appellees would not have entered into the Agreement or paid the initial $175,000. When Appellant met with Appellees in Dallas, the second time, after they had entered into the Agreement and paid the $175,000 but before the final closing on August 31, 2007, Appellant again represented that Routes 116 and 117 were available when he knew or should have known they were not and represented that the acquisition by Bacon Whitney was a good deal because it was adequately funded and that Bacon Whitney would take BRIEF OF APPELLEES PAGE 10

11 over the Texas franchises, including Appellees Franchise. Based upon these representations, Appellees closed and paid the rest of the money and incurred the bank loan. All of these statements and omissions were material to Appellees decisions and none of them were true. These acts of fraud were performed in Dallas County, Texas and are sufficient specific minimum contacts with the State of Texas to confer personal jurisdiction. Also, Appellant told Appellees his title, duties and apparent authority were as Head of sales for the Dallas Office. This constitutes sufficient general contact with the State of Texas to confer personal jurisdiction. (CR93) 11. Based upon assurances that these Routes would be forthcoming by Appellant, Appellees borrowed and paid to Defendant 24Seven the additional sum of $333,000 and, ultimately, entered into a franchise agreement. (CR93) 12. Nevertheless, Defendant 24Seven never tendered the Routes promised but, instead, tried to get Appellees to accept inferior routes that were too far from their house (over 30 miles), scattered over a wide area (Arlington to Duncanville to Richardson) and had inferior accounts. The 2 largest accounts, which had to be serviced daily, were over 30 miles away. (CR93) 13. After 24Seven s failure to deliver the Routes, as promised, it came light that the entire so called VTL Group was and had been for some time in serious financial trouble, if not insolvent and under the process of restructuring. (CR93) 14. It also has come to light that the Routes promised were not and had never been available as promised. Because of his position with the 24/Seven, Appellant knew or should have known that these Routes were not available and of the financial condition of the VTL Group, 24Seven and Bacon Whitney and had a duty to disclose these facts to Appellees but, instead, he actively concealed them for the purpose of inducing them to pay their money and, ultimately, to attempt to induce them BRIEF OF APPELLEES PAGE 11

12 to accept inferior routes with machines throughout the Dallas-Ft. Worth Metroplex rather than within Carrollton/Farmers Branch. (CR94) 15. Nevertheless, Defendant Bacon Whitney, somehow, assumed control over Appellees money, the Routes and the franchise agreement and have attempted to induce Appellees to take inferior routes and have refused to return their money. (CR94) 16. As referenced in the Agreement, Appellees were provided with a Uniform Franchise Offering Circular by Defendant 24Seven which purported to conform to the FTC Franchising Rule. However, the failure to disclose the facts set forth above and more particularly set forth below constitutes material omissions and active and willful concealment pursuant to said Rule. Appellant, as head of sales for the Dallas office of 24Seven, knew or should have known and is ultimately responsible for these material failures to disclose. (CR94) 17. The Loan that provided the $333, that was paid to 24Seven (at the time, this name was being used by Bacon Whitney and not the original 24Seven with which Appellees signed their agreements) was made by Banco Popular. This bank was recommended by 24/Seven and made this loan when no other bank would because it had special ties to 24/Seven. Appellant was instrumental in obtaining and closing this loan through s and phone calls made from and to Dallas, Texas. The loan was set to close on August 30 but it was delayed (by Appellant) until August 31. The reason for the delay, Appellees found out later, was the transfer from 24/Seven to Bacon Whitney. The loan was delayed until August 31, 2007, because of the transfer. Bacon Whitney took over the assets and liabilities of 24/Seven and had commenced operating under the name 24/Seven just prior to the closing. Appellant was privy to all of this but told Appellees nothing about it. (CR94) /Seven (Bacon Whitney), via Appellant and others, gave assurances to the bank and BRIEF OF APPELLEES PAGE 12

13 otherwise dealt with the bank at closing at a time when both the bank and Bacon Whitney knew or should have known of the false and fraudulent acts, statements and omissions more particularly described herein. (CR95) 19. If Appellant had told Appellees the truth when he first knew it, well prior to the first Dallas meeting on March 2, 2007, that VTL/24Seven was in financial trouble, that Bacon Whitney was not going to take over the Texas Franchises and that the Routes were unavailable and that he and others were scrambling to try to cobble together a company (Bacon Whitney) to save the US franchise business, Appellees would have never entered into the Agreement, paid the initial $175,000 closed on their loan and paid their franchise fees. Likewise, if he had told them that the inferior routes and lost accounts were not going to be replaced, They would not have continued forward. If Appellant had not told Appellees at the second Dallas meeting that they Bacon Whitney was well funded with cash when, in fact, they were not; that they couldn t support the franchisee network; that the Texas franchises (e.g., Appellees franchise) were not being transferred and that the routes Appellees would ultimately be presented would not meet our requirements; Appellees would have demanded that their deposit and the franchisee fee be returned immediately so as to mitigate any loss. Instead, Appellant bombarded Appellees with phone calls and s both to and from Dallas, Texas, in a effort to get Appellees to close sooner. Likewise, as described above, Appellant met with Appellees, in person, in Dallas and told them the lies and omitted to tell them the truth (as more particularly described above), in an effort to hasten the closing of Appellees franchise agreement and payment of the remainder of the fee. Appellant was instrumental in the fraud perpetrated upon Appellees that is the subject of this suit. (CR95) BRIEF OF APPELLEES PAGE 13

14 SUMMARY OF THE ARGUMENT Appellant was the primary spokesman in the fraud that was perpetrated on Appellees and had specific contacts with Dallas, Texas that were central to the fraud. BRIEF OF APPELLEES PAGE 14

15 STANDARD OF REVIEW Whether a trial court has personal jurisdiction over a defendant, is a question of law. BMC rd Software Belgium, N.V., v. Marchand 83 S.W.3 789, 794 (Tex.2002). In reviewing a trial judge s ruling on a special appearance, the appellate court should examine all the evidence in the record to determine if the nonresident defendant negated all possible grounds for personal jurisdiction. Reiff v. Roy 115 S.W.3d 700, 705 (Tex.App.-Dallas 2003, pet. denied). Issue ARGUMENT Whether Trial Court correctly denied Appellant s Special Appearance because Appellees both pleaded and proved that he had sufficient minimum contacts with the State of Texas which were specific, and went to the heart of the various torts alleged by Appellees. A Texas court may exercise personal jurisdiction over a defendant if the defendant has minimum contacts with the state and the exercise of jurisdiction will not offend traditional notion of fair play and substantial justice. See BMC Software Belgium, 83 S.W.3d at 795 (citing Int l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). To establish minimum contacts, the defendant must have purposefully availed himself of the privilege of conducting activities inside Texas and enjoyed the benefits and protections of Texas laws. Reiff, 115 S.W.3d at 705. The defendant s activities must justify a conclusion the defendant could reasonably anticipate being called into a Texas court. Reiff 115 S.W.3d at 705. The Texas long-arm statute permits Texas courts to exercise jurisdiction over a nonresident defendant that does business in Texas. See Tex. Civ. BRIEF OF APPELLEES PAGE 15

16 Prac. & Rem. Code Ann (Vernon 1997 & Supp.2006) The long-arm statute defines doing business as (i) contracting by mail or otherwise with a Texas resident with performance either in whole or in part in Texas; (ii) committing a tort in whole or in part in Texas; (iii) recruiting Texas residents directly or through an intermediary located in Texas, for employment inside or outside Texas; or (iv) performing any other act that may constitute doing business. Tex. Civ. Prac. & Rem. Code Ann The broad language of the long-arm statute permits Texas courts to exercise jurisdiction as far as the federal constitutional requirements of due process will permit. BMC Software, 83 S.W.3d at 795. Personal jurisdiction exists if the nonresident defendant s minimum contacts give rise to either general or specific jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall,466 US. 408, , 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); BMC Software 83 S.W.3d at Specific jurisdiction is established if the nonresident defendant s alleged liability arises from or is related to activity conducted within the forum. BMC Software, 83 S.W.3d at 796. The minimum contacts analysis for specific jurisdiction focuses on the relationship among the defendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868; Michiana Easy Livin Country, Inc. v. Holten, 168 S.W.3d 777, 790 (Tex.2005). Appellant has the initial burden of pleading facts that, if true, would give rise to personal jurisdiction. This burden was satisfied by Plaintiffs Sixth Amended Original Petition (CR ) and the Affidavits of Jordan Dontos. (CR 90-96). It then becomes the burden of Appellee to negate every basis for jurisdiction.. Reiff v. Roy 115 S.W.3d 700, 705 (Tex.App.-Dallas 2003, pet. denied). This Appellant failed to do. There is no real substantial dispute in the evidence. Appellee does not deny that he was BRIEF OF APPELLEES PAGE 16

17 present here in Dallas, Texas and made the statements and omissions alleged and proven by Appellees (Affidavit of Jordan Dontos, CR 90-97). In this case, Appellees need only rely on the specific contacts of Appellant, to establish personal jurisdiction in this case as set out in the Affidavits of Appellee. (Jordan Dontos. (CR 96-97)) As is more particularly described above and proven by the Affidavits of Jordan Dontos, Appellee made and caused to be made fraudulent statements and omissions to the Appellants into the state of Texas by phone, and at a personal meeting in Texas. Because of these statements and omissions, Appellants did not discontinue their inquiring into 24/Seven but went forward with the vending machine franchise. They deposited $175,000. They sold their home in Washington State and moved to Texas. They closed a bank loan for $333,000 (for which they are still indebted) and most of the money went to Appellee s employer. This clearly satisfies the minimum specific contacts test in that it constitutes the commission of a tort (fraud), while Appellee was in the State of Texas, that is at the heart of this case. If Appellee came to Texas, of his own free will, for the purpose of making untrue statements, omitting to tell the truth that induced Appellees to become franchisees instead of taking other action, how could he now not expect to be sued in the courts of the State of Texas? The Law of the Case Simply stated, Appellees have the burden of alleging and presenting facts that give rise to specific jurisdictional contacts in the trial court over appellant. This Appellees have done thereby shifting the burden to Appellant to negate all possible bases for specific personal jurisdiction. Wolf v. Summers-Wood, L.P. 214 S.W.3rd 783(Tex App. Dallas 2007). Appellees have alleged and presented evidence that Appellant participated in the commission BRIEF OF APPELLEES PAGE 17

18 of a tort, in whole or in part, by specific acts that would make hauling him into court in this state foreseeable enough to not offend the traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct 154, 90 L. Ed. 95(1945). The evidence and fair inferences therefrom show that Appellant has failed to negate all possible bases for jurisdiction based upon specific contacts with Texas. The Fiduciary Shield Doctrine does not apply The Fiduciary Shield Doctrine does not apply to jurisdiction based upon specific jurisdictional contacts and/or if the individual participated in the commission of wrongful acts in the forum jurisdiction even if those acts were committed on behalf of a corporate entity. Siskind v. The Villa Foundation for Education, 642 S.W. 2d 434, 437 (Tex. 1982). Texas courts applying the fiduciary shield doctrine have expressly limited its application to attempts to exercise general jurisdiction over a nonresident defendant. *** The fiduciary shield doctrine does not protect a corporate officer from specific jurisdiction as to intentional torts or fraudulent acts for which he may be individually liable. A.C.S. Wright v. Sage Engineering, Inc. rd st 137 S.W , 250 (Tex. App Houston [1 Dist.] 2004). The Facts of the Case There is no question that a monumental and vicious fraud, of both omission and co-mission, was perpetrated on Appellees by a Medusaesque entity called the VTL Group using the trade name 24/Seven. Appellant has tried to disassociate himself from this fraud but the truth is, he was in the thick of it from the very beginning. He was the principal spokesman for 24/Seven, Vice President of Franchise Sales. (CR 90- BRIEF OF APPELLEES PAGE 18

19 97) He represented the routes to be available when he knew or should have known that they were not. (CR 90-97) He knew or should have known that 24/Seven was about to go into receivership in New Zealand. (CR 90-97) He both induced by misrepresentation and allowed by omission Appellees to put down $175,000 on their 24/Seven Franchise without telling them the truth. (CR 90-97) When it was CLEAR that he knew the truth, Appellant encouraged and allowed them to close a $333,000 loan to fund the rest of the purchase price of the Franchise. (CR 90-97) Appellant has attacked the specificity of Appellees jurisdictional allegations by the simple expedient of misrepresenting and ignoring them. Here they are from Plaintiffs Sixth Amended Original Petition: (CR 101) 10. Defendant BRAD CAMAC is an individual residing and working, at all material times, through the 24Seven offices in Dallas County, Texas. He is or was at all material times, Vice President of Franchise Sales for Defendant 24Seven and the principal spokesman and actor for said Defendant as well as the other Defendants named after Defendant Greg Hatch left the company in the perpetration of the Ashell game@ that is the gravamen of this suit. He was in charge of sales at the Dallas office of 24Seven. He met with Plaintiffs, in Dallas, on several occasions and communicated with them on a constant and systematic basis by and phone both to and from Dallas, Texas.. The first meeting was March 2, 2007, before Plaintiffs had entered into any agreements with any of the Defendants. At that time, he knew or should have known that 24Seven was in dire financial straits, that it was in or near receivership and that the Routes were not available. He had a duty to pass this information on to Plaintiffs but failed to do so. Had he done so, Plaintiffs would not have entered into the Agreement or paid the initial $175,000. He met with Plaintiffs, in Dallas, after they had entered into the Agreement and paid the $175,000 but before the final closing on August 31, At that time, he represented that Routes 116 and 117 were available when he knew or should have known they were not and represented that the acquisition by Bacon Whitney was a good deal because it was BRIEF OF APPELLEES PAGE 19

20 adequately funded and that Bacon Whitney would take over the Texas franchises, including Plaintiffs. Based upon a reasonable reliance on these material representations, Plaintiffs closed and paid the rest of the money and incurred the bank loan. All of these statements were material to Plaintiffs decisions and none of them were true. These tortuous acts of fraud were committed in Dallas County, Texas and are sufficient specific minimum contacts with the State of Texas to confer personal jurisdiction on Camac in a Texas court; put Camac on fair notice that he could be sued in Texas as required by the traditional notions of fair play and substantial justice and the US Constitution and the laws of the State of Texas. Also, his title, duties and apparent authority and constant presence in Texas as Head of Sales of the Dallas Office constitutes sufficient general contact with the State of Texas to confer personal jurisdiction on Camac in a Texas court; put Camac on fair notice that he could be sued in Texas as required by the traditional notions of fair play and substantial justice and the US Constitution and the Laws of the State of Texas. Both the specific and general contacts described above are, separately and in tandem, purposeful, continuous, systematic and longstanding. The Affidavit of Jordan Dontos, filed concurrently herewith, is incorporated herein by reference. Clearly, these jurisdictional allegations result from Appellant s own actions, are purposeful, 1 and Appellant sought benefit, advantage and profit (if nothing else, his salary from 24/Seven ) by availing himself to the jurisdiction. Hansen v. Denckla, 357 U.S. 235, 253, 78 S.Ct (1959) Likewise, the Jurisdictional proof of Appellees is not conclusory but, rather, as are the allegations, specific and detailed as to the time, place, content and intent of Appellants s misrepresentations and their causality of Appellees s injuries. (Affidavit of Jordan Dontos CR ) CONCLUSION AND PRAYER The undisputed evidence blows a gigantic hole in Appellant s burden of negating all possible bases for personal jurisdiction. He clearly participated in the fraud perpetrated against Appellees A 1 Appellant has provided NO authority for the proposition that an employee cannot be held accountable for a fraud that he perpetrated on behalf of his employer because there is none and the idea is ludicrous. BRIEF OF APPELLEES PAGE 20

21 purposeful act, taken knowingly by Appellee to continue the ongoing fraud that bilked Appellants out of their life savings. Appellees pray that the Ruling of the Trial Court be affirmed. Respectfully submitted, GARY E. SMITH, P.C. GRAHAM, BRIGHT & SMITH, P.C. Attorneys and Counselors CERTIFICATE OF SERVICE By: /s/ Gary E. Smith Gary E. Smith State Bar Number: Two Lincoln Centre 5420 LBJ Freeway, Suite 300 Dallas, TX Telephone Facsimile ATTORNEYS FOR APPELLEES This it certify that the foregoing, Appellant s Brief, has been served upon all counsel of record, by Certified Mail, Return Receipt Requested, on this the 26th day of September, 2011 /s/ Gary E. Smith Gary E. Smith BRIEF OF APPELLEES PAGE 21