LEANNE JOHNSON, Justice.
Appellants Michael Booth, Thomas Allen, Robert Spaak, Randy Glessner, Courtney Williams, Valerie J. Spaak, Mary Allen, Robert W. Thomas Sr., and Theresa M. Williams (collectively Appellants) filed an interlocutory appeal from the trial court's denial of Appellants' special appearances. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (West 2015). We reverse and remand.
In November of 2014, Appellee Laura Kontomitras (Kontomitras or Appellee) filed an Original Petition against defendants Michael Booth a/k/a Michael Bourgogne (Booth), Thomas Allen (Allen), Robert Spaak (Spaak), Randy Glessner (Glessner), Courtney Williams a/k/a Courtney Bourgogne (Courtney Williams), Valerie J. Spaak (Valerie Spaak), Mary Allen, and Duraworks Metals & Holdings, Inc. (Duraworks). In January of 2015, Kontomitras filed a First Amended Original Petition, adding defendants Robert W. Thomas (Robert Thomas), Theresa Williams, and Electric Car Distributors, Inc. (Electric Car). In her Original Petition and First Amended Original Petition, Kontomitras brought claims for breach of contract, fraud, conversion, conspiracy, and alter ego/single business theory. The plaintiff's live pleading at the time of the trial court's denial of the special appearances was the Plaintiff's First Amended Original Petition. With respect to the parties and jurisdiction of the trial court, Kontomitras alleged the following in her First Amended Original Petition:
According to Kontomitras, the defendants executed a sequence of agreements beginning in September 2013. Kontomitras alleged that
Kontomitras alleged that: Booth convinced Kontomitras to invest in Duraworks; Spaak and Glessner are associates of Booth who operate to carry out the details of Booth's activities; Valerie Spaak and Mary Allen, spouses of Robert Spaak and Thomas Allen, signed contracts with Kontomitras as guarantors of the contracts at issue; and Courtney Williams is "the purported spouse of Booth whose function is to provide additional `cover' to Booth in the prohibited transactions and holdings in which he engages and develops."
On December 22, 2014, Mary Allen, Thomas Allen, Valerie Spaak, and Robert Spaak each filed Special Appearances challenging personal jurisdiction. On December 29, 2014, Courtney Williams, Michael Booth, and Randy Glessner filed Special Appearances challenging personal jurisdiction. On February 23, 2015, Robert Thomas and Theresa Williams filed Special Appearances challenging personal jurisdiction.
In each Special Appearance, the defendants denied Texas residency, denied having minimum contacts with Texas, and denied purposeful availment in Texas. Each of the defendants asserted in their Special Appearances that "the Plaintiff is a Texas resident and contracted with a Texas entity, Defendant Duraworks Metals & Holdings, Inc." In Kontomitras's Response to the Special Appearances, she alleged that she is "an individual with residences in the State of Texas and the State of California." She argued that personal jurisdiction over all defendants was proper because
Kontomitras argued that general jurisdiction was proper because defendants Duraworks, Thomas Allen, Mary Allen, Robert Spaak, Valerie Spaak, and Theresa Williams own property located in El Paso and Jasper County, Texas. In her Response, Kontomitras referenced and attached a copy of certain executed agreements, including: an Agreement for the Remanufacture and Delivery of Golf Cars (the Agreement for Remanufacture), signed by Kontomitras and by Allen as president of Duraworks; a Master Agreement for the Remanufacture and Delivery of Golf Cars (Master Agreement), signed by Kontomitras and by Allen as president of Duraworks; five Promissory Note[s] (Promissory Notes), executed on various dates, signed by Allen as president of Duraworks; a Corporate Guaranty of Duraworks Metals & Holdings, Inc. (Guaranty), signed by Allen as president of Duraworks; an Individual Personal Guaranty of Thomas P. Allen (Personal Guaranty), signed by Allen; and a Consignment Agreement (Consignment Agreement) signed by Allen as president of Duraworks. The Agreement for Remanufacture states that Duraworks is a Texas corporation but it provides an address for Duraworks that is in Los Angeles, California; and, it states that Kontomitras's address is in Los Angeles, California. The Agreement for Remanufacture further states that
On April 30, 2015, the trial court held a hearing on the Special Appearances and on the Motion to Show Authority and Motion to Disqualify. Kontomitras appeared personally and through her attorney, and all of the defendants except Duraworks and Electric Car appeared through and were represented by the same Kemp Smith attorney. There is no indication in the appellate record as to whether or not the parties engaged in any discovery prior to the hearing. There were no live witnesses at the hearing, and no additional evidence was offered or admitted at the hearing. The defendants argued that "[a]ll the contracts are occurring in California, [Kontomitras] lives in California. All of these individuals are residents of the state of California[.]" Kontomitras argued that Allen and Spaak appeared on behalf of Duraworks and Electric Car in Texas so that "they are availing themselves with Texas[.]" She further argued that
The trial court issued a letter ruling dated April 30, 2015, and entered of record on May 1, 2015, wherein the court entered an Order denying "Defendants, Special Appearance and Special Exceptions[,]" denying the "Defendant's Request for a Protective
In their Special Appearances, Appellants alleged that their contacts with Texas are insufficient to support personal jurisdiction, that Kontomitras's claims do not arise from Appellants' contacts with Texas, that Appellants have not had continuous and systematic contacts with Texas, that Appellants have never committed a tort in Texas, and that exercising personal jurisdiction over Appellants would not comport with due process but would offend traditional notions of fair play and substantial justice. Each Appellant filed an affidavit with his or her Special Appearance. In each affidavit the Appellants alleged they are residents of California. The affidavits of Mary Allen, Thomas Allen, Valerie Spaak, Robert Spaak, Courtney Williams, Michael Booth, Randy Glessner, and Robert Thomas stated that they do not own any real property in Texas. Mary Allen, Valerie Spaak, Courtney Williams, Michael Booth, Randy Glessner, Theresa Williams, and Robert Thomas stated in their affidavits that they are not employees or officers of Duraworks. Thomas Allen's affidavit stated that he is the president of Duraworks, and Robert Spaak's affidavit stated that he is the secretary/treasurer of Duraworks.
Mary Allen, Robert Spaak, and Robert Thomas stated in their affidavits that they have never been to Texas. Thomas Allen asserted in his affidavit that, although he had made two trips to Texas, once in 1946 with his father and once in 2014 for dinner, he has never been to Texas "in any capacity or with any relation to" Duraworks. Valerie Spaak further averred in her affidavit that she has only been to Texas once to visit a family member. Courtney Williams stated in her affidavit that she has made "several brief trips" to Texas to visit friends or on the way to visit family. Booth asserted that he has made one personal visit to El Paso and that he was incarcerated at a federal institution in Texas. Glessner asserted that he made "some brief personal visits" to Texas and "some work related visits" to Texas on behalf of an employer but not for Duraworks. Theresa Williams stated that "[d]uring the past 10 years," she has been to Texas "four or five times to visit real property that she owns[]" but not for any other reason.
Mary Allen, Valerie and Robert Spaak, Courtney Williams, Theresa Williams, and Robert Thomas stated in their affidavits that they never interacted with Kontomitras. Thomas Allen contended in his affidavit that he had "limited interactions" with Kontomitras "by telephone only." Booth averred in his affidavit that Kontomitras initiated "numerous calls, texts, and emails" with him, that she visited with him while he was incarcerated in Washington State, and that she and her son played golf with Booth. There is no indication in Booth's affidavit where Kontomitras or Booth may have been located (i.e., Texas, California, or elsewhere) when Kontomitras had the "numerous calls, texts, and emails" with Booth. Glessner stated his
Kontomitras filed a Response to Defendant's Special Appearance (hereinafter "Response"). In the initial paragraph of her Response, Kontomitras stated the Response was being made to Booth's Special Appearance. Notwithstanding that specific reference, therein Kontomitras included an argument and allegations regarding each Appellant. She argued that all Appellants conducted business within the State of Texas and purposefully availed themselves of the privilege of conducting business within the State and that "[a]ll of defendants' efforts to obtain money from plaintiff were directed to plaintiff in Texas and resulted in continuing contacts with the state." She included an affidavit with her Response. In her Response, she made specific allegations as follows:
Michael Booth
Thomas Allen
Robert Spaak
Randy Glessner
Mary Allen, Valerie Spaak, Courtney Williams, and Theresa Williams
Booth filed a Reply to Plaintiff's Response to Defendant's Special Appearance. Defendants Thomas Allen, Mary Allen, Robert Spaak, Randy Glessner, Courtney Williams, Valerie Spaak, Robert Thomas, and Theresa Williams also filed a Reply to Plaintiff's Response to Defendant's Special Appearance. In Booth's Reply brief, Booth alleged that Kontomitras owned property in Jasper County, Texas, but that she was a California resident. Booth argued that "[s]ince Plaintiff is not a Texas resident neither Section 17.042(1) nor 17.042(3) of the Texas Civil Practices and Remedies Code should apply in this case." Booth further argued that "[i]gnoring the fact that Section 17.0421(1) of the Texas Civil Practices and Remedies Code is inapplicable to a nonresident plaintiff," Kontomitras failed to establish that Booth purposefully availed himself of conducting activities in Texas. Booth further argued that
The other Appellants collectively filed a Reply in support of their Special Appearances, also arguing that Sections 17.042(1) and 17.042(3) of the Texas long-arm statute should not apply because Kontomitras is not a Texas resident but rather is a resident of California. Their Reply also asserted they have had no interactions with Kontomitras or only very limited interactions by telephone or email with Kontomitras. Their Reply further argued as follows:
In a single issue, Appellants argue that "no Appellant had the necessary minimum contacts for personal jurisdiction by a Texas court[.]" Appellants argue that none of the Appellants' conduct establishes minimum contacts or purposeful availment and that neither specific nor general jurisdiction over any of the Appellants is proper.
Kontomitras argues that all of the Appellants "have purposely established minimum contacts" with Texas such that personal jurisdiction is proper. She further argues that Booth acted through the other
Whether the trial court has personal jurisdiction over a defendant is a question of law that we review de novo. Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex.2013); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794-95 (Tex.2002). The plaintiff has the initial burden of pleading sufficient allegations to bring a nonresident defendant within the jurisdiction of a Texas court. Moncrief, 414 S.W.3d at 149; Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658-59 (Tex.2010); Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009).
If the plaintiff meets her initial burden, "the burden shifts to the defendant to negate all potential bases for personal jurisdiction the plaintiff pled." Moncrief, 414 S.W.3d at 149; BMC Software, 83 S.W.3d at 793. A defendant may negate the plaintiff's jurisdictional allegations on either a factual basis or a legal basis. Kelly, 301 S.W.3d at 658-59.
Id. at 659 (footnotes omitted). If the plaintiff does not plead facts bringing a defendant within reach of the Texas long-arm statute, the defendant need only prove that it does not live in Texas to negate jurisdiction. Id. at 658-59 (citing Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982)).
Before determining the jurisdictional question, a trial court must frequently resolve questions of fact. BMC Software, 83 S.W.3d at 794. If the trial court does not issue findings of fact and conclusions of law, all facts necessary to support the judgment that are supported by the evidence are implied. Id. at 795.
A trial court has personal jurisdiction over a nonresident defendant if the exercise of jurisdiction is authorized by statute and is consistent with federal and state constitutional due process guarantees. Moncrief, 414 S.W.3d at 149; Spir Star AG v. Kimich, 310 S.W.3d 868, 872 (Tex.2010); see also Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (West 2015). The Texas long-arm statute provides that in addition to other acts that may constitute doing business in Texas, a nonresident does business in this state if the nonresident:
Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (emphasis added). Although an allegation of jurisdiction may satisfy the Texas long-arm statute, the allegation still may not satisfy the due process requirements under the United States Constitution. Moncrief, 414 S.W.3d at 149. Accordingly, even if a court determines the facts satisfy the Texas long-arm statute, a court must also examine the facts to determine if the exercise of personal jurisdiction over the defendant comports with due process. See CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996).
Asserting personal jurisdiction over a nonresident defendant comports with due process when (1) the nonresident defendant has minimum contacts with the forum state, and (2) asserting jurisdiction comports with traditional notions of fair play and substantial justice. Retamco Operating, 278 S.W.3d at 337. The minimum contacts analysis requires "`some act by which the defendant purposefully avails
Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769, 772 (Tex.1995) (citing Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991)).
When determining specific jurisdiction, the focus is on the relationship between the forum, the defendant, and the litigation. Moncrief, 414 S.W.3d at 150; Retamco Operating, 278 S.W.3d at 338. There must be a substantial connection between the defendant's contacts and the operative facts of the litigation. Moncrief, 414 S.W.3d at 156. The contacts must be such that the defendant "should reasonably anticipate being haled into court" in Texas. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980).
General jurisdiction may only be exercised over a nonresident defendant whose contacts in the forum state are so continuous and systematic "`as to render [it] essentially at home in the forum State.'" Daimler AG v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 751, 187 L.Ed.2d 624 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)). General jurisdiction requires a more demanding minimum contacts analysis than specific jurisdiction does, and the nonresident defendant must have conducted substantial activities within the forum. BMC Software, 83 S.W.3d at 797. In order for Texas courts to exercise general jurisdiction over a nonresident, the nonresident's contacts with Texas must be continuous, systematic, and substantial. See Goodyear, 131 S.Ct. at 2851, 2853-54; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007) ("If the defendant has made continuous and systematic contacts with the forum, general jurisdiction is established whether or not the defendant's alleged liability arises from those contacts."). "General jurisdiction is premised on the notion of consent. That is, by invoking the benefits and protections of a forum's laws, a nonresident defendant consents to being sued there." Am. Type Culture Collection, Inc., 83 S.W.3d at 808. "General jurisdiction has been described as `dispute-blind,' an exercise of the court's jurisdiction made without regard to the
As Justice Ginsberg stated in Goodyear, the Court's 1952 decision in Perkins v. Benguet Consolidated Mining Company remains "`[t]he textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.'" Goodyear, 131 S.Ct. at 2856 (citing Perkins, 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952) and quoting Donahue v. Far Eastern Air Transport Corp., 652 F.2d 1032, 1037 (D.C.Cir.1981)). The facts in Perkins are illustrative of the type of continuous and systematic contacts by a nonresident defendant which would be sufficient for general jurisdiction. See generally Perkins, 342 U.S. at 447-48, 72 S.Ct. 413. In Perkins, the president of the company maintained an office in Ohio in which he "did many things on behalf of the company." Id. The president maintained company files in Ohio, drew and distributed salary checks from the Ohio office, sent correspondence from Ohio, used two Ohio bank accounts for company funds, had an Ohio bank act as transfer agent for the company stock, held directors' meetings in Ohio, supervised policies in Ohio dealing with the rehabilitation of the corporation's properties in the Philippines, and dispatched funds from Ohio bank accounts to cover purchases of machinery for the rehabilitation. See id. By contrast, in Helicopteros, the Supreme Court found that the contacts were insufficient and there was no continuous and systematic contact with Texas. Helicopteros, 466 U.S. at 415-19, 104 S.Ct. 1868. "Helicol's contacts with Texas consisted of sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from Bell Helicopter for substantial sums; and sending personnel to Bell's facilities in Fort Worth for training." Id. at 416, 104 S.Ct. 1868.
The plaintiff must establish more than isolated or sporadic visits with the forum before such contacts will constitute the type of continuous, systematic, and substantial contacts necessary for general jurisdiction. See id. at 415-19, 104 S.Ct. 1868. The defendants' contacts with the forum state must be so constant and pervasive as to render them essentially "at
According to Kontomitras, Booth directed that Duraworks be established as a Texas corporation, directed Allen and Glessner to visit Texas to view property and arrange for a business location for Duraworks, directed Allen and Glessner to make credit arrangements with a Texas entity, and solicited Kontomitras to invest, lend money, or enter agreements with Duraworks and/or the Appellants. Kontomitras alleged in her Response to the Special Appearances that Allen owns property in Texas and has visited Texas on several occasions to arrange a place of business for Duraworks and Electric Car, to make credit arrangements, and to set up another business. As to Spaak, Kontomitras argued that he has owned real property in Texas, participated in negotiating the agreements at issue in this lawsuit, and he is a principal and officer of Electric Car, which has a place of business in Texas. According to Kontomitras, Glessner purchased a vehicle that was stored in Texas, arranged for places of business in Texas for Duraworks and Electric Car, and made credit arrangements with a Texas entity. And, according to Kontomitras, Mary Allen, Valerie Spaak, Courtney Williams, and Theresa Williams have property interests in Texas.
Appellants asserted they are residents of California, not Texas, which Kontomitras does not challenge. Mary Allen, Robert Spaak, and Robert Thomas maintained they have never been to Texas. Several of the other Appellants stated they have made trips to Texas on either personal trips or matters unrelated to Duraworks. Even if we accept as true Kontomitras's allegations that Appellants' own property in Texas and that Appellants made trips to Texas, based on the pleadings and the evidence before the trial court, we conclude that the contacts between the Appellants and Texas have been sporadic and limited and fall short of the type of continuous, systematic, and substantial contacts necessary for a finding of general jurisdiction. See Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868; Moki Mac, 221 S.W.3d at 575.
Specific jurisdiction is "case-linked" and "depends on an `affiliatio[n] between the forum and the underlying controversy[.]'" Goodyear, 131 S.Ct. at 2851 (quoting Arthur T. von Mehren & Donald Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L.Rev. 1121, 1136 (1966)); see also Moncrief,
In Walden v. Fiore, the Court discussed the type of minimum contacts that are necessary to authorize specific jurisdiction. ___ U.S. ___, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014). Walden arose out of an incident that occurred at the Atlanta Hartsfield-Jackson Airport when the plaintiffs, Fiore and Gipson, were returning from a gambling trip to Puerto Rico. Id. at 1119. Walden, a deputized agent for the Drug Enforcement Administration (DEA), approached the plaintiffs at the departure gate for their flight to Las Vegas and seized cash that the plaintiffs won while gambling. Id. The plaintiffs explained to Walden that they were professional gamblers and they had residences in California and Nevada, and that they were on their way home. Id. The DEA and Walden seized the money from Fiore and Gipson. Id. Fiore and Gipson then filed a suit in federal court in Nevada against Walden, a Georgia resident, alleging intentional violations of their Fourth Amendment rights, arising from the seizure of their money at the Georgia airport. Id. at 1120. Walden also assisted in preparing what the plaintiffs alleged was a "false probable cause affidavit" for the forfeiture of the money. Id. at 1119-20. Ultimately, the United States Attorney chose not to proceed with forfeiture and the money was later returned to Fiore and Gipson. Id. at 1120.
Walden filed a motion to dismiss, which the district court granted because it concluded that it lacked personal jurisdiction over Walden. Id. The United States Court of Appeals for the Ninth Circuit reversed, having concluded that the trial court had personal jurisdiction over a portion of the claims pertaining to the filing of the allegedly "false probable cause affidavit[.]" Id. The Supreme Court granted review and concluded that Walden lacked minimum contacts with Nevada that would be necessary for the federal district court in Nevada to exercise personal jurisdiction over him. Id. at 1121-26. In Walden, the Court examined whether a court may exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Georgia would delay the return of funds to plaintiffs in Nevada. Id. at 1119. The Court explained that specific jurisdiction requires that the relationship between the defendant, the forum, and the litigation must arise out of contacts that the defendant himself creates with the forum state and that a minimum contacts analysis looks at the defendant's own contacts with the forum state, not the defendant's contacts with persons who reside in the forum state. Id. at 1122. Walden's relevant conduct occurred entirely in Georgia and the fact that his conduct affected plaintiffs with connections to Nevada
Kontomitras asserted what she describes as an "Alter-Ego/Single Business Theory" claim against Appellants and Duraworks. She contended that the defendants "jointly and severally, caused Duraworks to be used for the purpose of perpetrating a fraud on Plaintiff directly for their own personal benefit." As a general rule, a court may not assert personal jurisdiction over an individual based on the individual's relation to a corporation unless the corporation is the individual's alter ego. Tuscano v. Osterberg, 82 S.W.3d 457, 468 (Tex.App.El Paso 2002, no pet.); Royal Mortg. Corp. v. Montague, 41 S.W.3d 721, 738 (Tex.App. — Fort Worth 2001, no pet.); Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 99 (Tex.App.Houston [14th Dist.] 1995, writ denied). Under the fiduciary shield doctrine, a non-resident corporate officer or employee is protected from the exercise of general personal jurisdiction when all of that individual's contacts with Texas were made on behalf of his employer. Tabacinic v. Frazier, 372 S.W.3d 658, 668 (Tex.App.Dallas 2012, no pet.).
Generally, the courts have limited the application of the fiduciary shield doctrine to attempts to exercise general jurisdiction over a nonresident. Id. Additionally, the fiduciary shield doctrine does not protect a corporate officer or employee from an assertion of specific personal jurisdiction when the plaintiff has alleged intentional torts or fraudulent acts for which the individual defendant may be held individually liable. Id.; see also Stull v. Laplant, 411 S.W.3d 129, 135 (Tex. App.Dallas 2013, no pet.); Ennis v. Loiseau, 164 S.W.3d 698, 707 (Tex.App.Austin 2005, no pet.). This is because a "corporate officer is primarily liable for his own torts[.]" Morris v. Powell, 150 S.W.3d 212, 221 (Tex.App.San Antonio 2004, no pet.). Personal jurisdiction over an individual who was associated with a corporation ordinarily will not be based solely upon the corporation's activities in Texas unless the one is the "alter ego" of the other. Tabacinic, 372 S.W.3d at 669; Davey v. Shaw, 225 S.W.3d 843, 856 (Tex. App.Dallas 2007, no pet.).
It is the plaintiff's burden to establish that the individual was an alter ego of his employer. Tabacinic, 372 S.W.3d at 669; Wolf v. Summers-Wood, L.P., 214 S.W.3d 783, 787-88 (Tex.App.Dallas 2007, no pet.); Brown v. Gen. Brick Sales Co., 39 S.W.3d 291, 298 (Tex.App.Fort Worth 2001, no pet.). Alter ego
Cadle v. Graubart, 990 S.W.2d 469, 472-73 (Tex.App.Beaumont 1999, no pet.) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986)).
In this matter, although Kontomitras asserted a claim against the Appellants under an alter ego theory, she did not plead specifically or otherwise offer evidence to support a finding of fraud or injustice with respect to the relationship of Duraworks to any of the Appellants; rather, we conclude that the allegations were of a conclusory nature and do not establish facts sufficient to support an inference of fraud or injustice for jurisdictional purposes. Kontomitras has not shown that any of the Appellants had such a financial interest, ownership, or control over Duraworks that would support fusing the corporation and the individuals for jurisdictional purposes. We conclude that there is a lack of evidence in the appellate record to support an implied finding by the trial court that any Appellant was acting as the "alter ego" so that general jurisdiction exists in Texas. See BMC Software, 83 S.W.3d at 799; Davey, 225 S.W.3d at 857; Cadle, 990 S.W.2d at 472-73. The appellate record affords an insufficient basis for personal jurisdiction over any of the Appellants under an alter ego theory.
In Kontomitras's Original Petition and in her First Amended Petition she alleged that "Plaintiff and Defendants ... executed a sequence of agreements beginning in September 2013." In her Response to the Special Appearances, Kontomitras argued that she entered into agreements with Booth and that the defendants "entered into multiple agreements with plaintiff in Texas[]." Kontomitras attached copies of the Agreement for Remanufacture between Kontomitras and Duraworks, a Master Agreement between Kontomitras and Duraworks, five Promissory Notes signed by Allen on behalf of Duraworks, a Corporate Guaranty signed by Allen on behalf of Duraworks, and a Personal Guaranty signed by Allen. The Agreement for Remanufacture stated that Duraworks is a Texas corporation, and it contained a California address for both Duraworks and Kontomitras. Furthermore, it stated that the funds provided by Kontomitras shall be used for the "purchase and remanufacture of 70 Cars" at the Duraworks facility
The Master Agreement expressly provided that California is the place for performance and that the law of California governs the Master Agreement. The Consignment Agreement included California addresses for both Duraworks and Kontomitras. Three of the Promissory Notes are between Duraworks and Kontomitras, and two of the Promissory Notes are between Duraworks and Elkon Industries, Inc.
Kontomitras also provided the trial court a copy of a General Indemnity Agreement, which was an agreement made with The Hartford for bonds and named the following as indemnitors: Duraworks, Thomas and Mary Allen, the Thomas and Mary Allen Trust, Robert and Valerie Spaak, the Robert and Valerie Spaak Revocable Trust, and Don and Roanne Stanley.
Booth executed a document styled as "Purchase and Sale of 70 Golf Cars," which is referenced as a "Budget" in a typewritten document that purportedly bears Booth's initials and signature. Therein, Booth provided wiring instructions to Kontomitras about the purchase and sale of the "70 Golf Cars." Booth also referred to this document as an "accounting" in his Reply to the Response to Defendant's Special Appearance.
The contractual documents Kontomitras referenced in her Response to the Special Appearances indicated that she contracted with Duraworks and not with the individual defendants. See generally Wolf, 214 S.W.3d at 792 ("If a person signs a contract in her corporate capacity, she is not individually a party to the contract."). In both the Agreement for Remanufacture and Master Agreement, the parties thereto (Kontomitras and Duraworks) provided the agreements would be performed in California. While we are not bound by a contract's choice-of-law provision, neither may we ignore it. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 482, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); IRA Res., Inc. v. Griego, 221 S.W.3d 592, 598-99 (Tex.2007). Although Kontomitras alleged that Appellants acted "to obtain money from plaintiff in Texas" or that they pursued and solicited money from her in Texas, there is no evidence in the appellate record before us that would support such allegations. The only document in the appellate record that references obtaining funds from Kontomitras is a document that appears to be from Booth, addressed to Kontomitras at an address in Los Angeles, California, and which provided a California address for both Duraworks as beneficiary and contains wiring instructions for Union Bank, a bank that is located in California.
We conclude that there is insufficient evidence in the appellate record to support an implied finding that the alleged contracts were performed or were to be performed in whole or in part in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042(1). Examining the agreements themselves, focusing on the relationship between the forum, the defendants, and the litigation as established in the record before us, we conclude that as to her claim for breach of contract, Kontomitras has failed to establish a substantial connection between the Appellants' contacts with Texas and the operative facts of the litigation. Moncrief, 414 S.W.3d at 156; Retamco Operating, 278 S.W.3d at 338. The contacts of the Appellants as established by the appellate record simply are not sufficient on the breach of contract claim such that the Appellants "should reasonably anticipate being haled into court" in Texas. World-Wide Volkswagen Corp., 444 U.S. at 297, 100 S.Ct. 580.
Next, we examine Kontomitras's tort claims. With respect to her claims that sound in tort, under the Texas long-arm statute, a defendant is subject to personal jurisdiction if the defendant committed a
Kontomitras alleged in her petition that she was asserting claims against Appellants for fraud, conversion, and conspiracy. Each claim would sound in tort. See Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998) (explaining that a fraud claim sounds in tort); Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 617 (Tex.1996) ("Civil conspiracy is an intentional tort."); Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex.1981) (noting that conversion is a tort) (citing to Restatement (Second) of Torts § 237); White v. Zhou Pei, 452 S.W.3d 527, 550 (Tex.App.Houston [14th Dist.] 2014, no pet.) (noting that a common law fraud claim is a cause of action based on tort). Bare assertions of fraud and conspiracy, without more, are generally insufficient to establish personal jurisdiction over a non-resident defendant. See PHC-Minden, 235 S.W.3d at 174-75 (stating that fraud, though "vital" to underlying attempt to pierce corporate veil, "has no place in assessing contacts to determine jurisdiction"); Nat'l Indus. Sand Ass'n, 897 S.W.2d at 776 (declining to recognize personal jurisdiction based solely on allegations of conspiracy where there is no evidence of conspiratorial acts in or directed to Texas); Masterguard, L.P. v. Eco Techs. Int'l LLC, 441 S.W.3d 367, 376 (Tex.App.Dallas 2013, no pet.) ("A conspiracy claim alone is not enough to establish personal jurisdiction.").
Kontomitras alleged that Booth, as the "mastermind," along with the other Appellants, "individually and in concert" with one another, contrived a scheme or plan to obtain money from her in Texas and divert those funds for their own personal benefit and use, that each made representations to Kontomitras regarding the use of her funds to entice her into dealing with defendants, and they negotiated and facilitated agreements with Kontomitras in Texas or took part in the obfuscation and diversion of money received from Kontomitras. According to Kontomitras, the Appellants knew she resided in Texas and cannot claim it was not foreseeable that their wrongful and tortious activities, regardless of where they occurred, would have consequences within Texas.
The appellate record does not reflect that the conversations, negotiations, and conduct about which Kontomitras complains occurred in Texas. There is no evidence in the appellate record that indicates Kontomitras relied to her detriment upon any specific conversations or representations by any of the Appellants that were made in Texas. See BMC Software, 83 S.W.3d at 796-97 (no jurisdiction over nonresident that made no representations to plaintiff in Texas and plaintiff did not rely to his detriment in Texas on nonresident's representations); Atiq, 2015 WL 6871219, at *7, 2015 Tex.App. LEXIS 11318, at *24. Furthermore, there is no evidence in the appellate record that Kontomitras transferred money from a Texas bank, that she was in Texas at the time of the alleged misrepresentations, or that the alleged torts were committed in whole or in part in Texas. Regarding Kontomitras's claim of conversion, she did not identify what property Appellants allegedly converted. She has not alleged the Appellants wrongfully exercised dominion and control over any property in Texas. Neither did she allege that her property was converted in Texas or that the wrongful dominion or control occurred in whole or in part in Texas. See Atiq, 2015 WL 6871219, at *6-7, 2015 Tex.App. LEXIS 11318, at **21-22. As to her claim for civil conspiracy, personal jurisdiction over a nonresident defendant cannot be based
Kontomitras argued that the Appellants' activities in Texas are sufficient because Appellants created a Texas corporation, Appellants own real property in Texas, Appellants had financial transactions, which she claims involve payment from a Texas bank,
Kontomitras claimed that some of the Appellants own property in Texas, but she failed to establish that the property allegedly owned in Texas by Booth, Allen, Spaak, or Theresa Williams is the subject of the underlying suit or that such property is related to the underlying causes of action. See Shaffer, 433 U.S. at 213, 97 S.Ct. 2569; Johnson, 285 S.W.3d at 903. The community property interests, if any, held by Mary Allen, Valerie Spaak, or Courtney Williams are not the subject of the underlying lawsuit. Kontomitras cited no legal support for her argument that personal jurisdiction over a party may attach by virtue of an alleged community property interest of her spouse. As to Mary Allen, Valerie Spaak, Courtney Williams, or Theresa Williams, Kontomitras failed to establish that they purposefully availed themselves of the privileges and benefits of conducting business in Texas. See Michiana, 168 S.W.3d at 785 (reserving specific jurisdiction for parties who "reach out" to the forum state to "create continuing relationships and obligations" with the citizens thereof, and a defendant "will not be haled into a jurisdiction solely as a result of ... the `unilateral activity of another party[.]'") (quoting Burger King, 471 U.S. at 475, 105 S.Ct. 2174)). Kontomitras's contention that Theresa Williams
Accordingly, we conclude that the trial court erred in denying Appellants' special appearances. We sustain Appellants' issue as to all Appellants. We reverse the trial court's order and remand the case with instructions to the trial court to dismiss Appellants and to sever the claims against them from the remainder of the action.
REVERSED AND REMANDED.
