ALENCAR v. SHAW

Citation323 S.W.3d 548
Decision Date10 August 2010
Docket NumberNo. 05-09-01262-CV.,05-09-01262-CV.
PartiesGineton ALENCAR, Appellant, v. Robert T. SHAW, Leisurecorp, Inc., and Trupetro, L.P., Appellees.
CourtCourt of Appeals of Texas

OPINION TEXT STARTS HERE

Daniel G. Rogers, Ferguson Davis, P.C., Dallas, TX, for Appellant.

Todd R. Hixon, Haakon T. Donnelly, Beltinger & DeWolf, LLP, C. Bruce Willis, II, Dallas, TX, for Appellees.

Before Justices MARTIN RICHTER, LANG-MIERS, and MYERS.

OPINION

Opinion By Justice LANG-MIERS.

This is an interlocutory appeal from the trial court's order denying appellant Gineton Alencar's special appearance. We affirm the trial court's order.

Background

Robert T. Shaw, Leisurecorp, Inc., and TruPetro, L.P. sued Alencar, a Florida resident, and others alleging that defendants made material misrepresentations in connection with a business venture in Brazil, namely, a naphtha refinery known as the Rafard Facility. Plaintiffs alleged that defendants initially induced Shaw and Leisurecorp to invest approximately $6 million and to become limited partners in TruPetro, and later induced all plaintiffs to invest more money in the Rafard Facility. Plaintiffs asserted multiple claims against all defendants, including claims for fraud and negligent misrepresentation. Shaw also asserted a claim against Alencar for breach of two promissory notes signed by Alencar in connection with the Rafard Facility.

Alencar's Special Appearance

The original petition included the following allegation about the trial court's exercise of personal jurisdiction over Alencar: [a]t all relevant times, Alencar had significant contacts with Dallas County which justify the imposition of personal jurisdiction on him here.” It also generally alleged that venue is proper in Dallas County because “all or a substantial part of the events giving rise to [plaintiffs'] claims occurred in Dallas County, Texas.” Alencar filed a general special appearance contesting the trial court's exercise of personal jurisdiction over him, along with a supporting affidavit.

In response to Alencar's special appearance, plaintiffs (1) obtained jurisdiction-related discovery from Alencar, (2) filed amended petitions that included additional claims and additional jurisdictional allegations against him, and (3) filed a written response to Alencar's special appearance, along with approximately 150 pages of supporting evidence. In response to the plaintiffs' additional claims and allegations, Alencar filed additional evidence to support his special appearance, but he did not amend his special appearance. After a hearing, the trial court denied Alencar's special appearance. The order does not state a basis for the trial court's ruling. Alencar did not request, and the trial court did not issue, findings of fact and conclusions of law. The appellate record in this case does not include a reporter's record from the hearing on the special appearance.

Issue on Appeal

On appeal, Alencar challenges the trial court's order denying his special appearance. His brief states a single issue:

The legal issue presented is whether an investment into a refining facility in Brazil via a Brazilian entity by various parties, some of whom are Texas residents and some of whom are not, in which all operations and investment took place in Brazil, can support personal jurisdiction against a non-resident defendant who resides in Brazil and Florida, who was sought out by the Plaintiffs to facilitate the operations in Brazil.
Applicable Law
Personal Jurisdiction

Texas courts may exercise personal jurisdiction over a nonresident defendant only if (1) the Texas long-arm statute permits the exercise of jurisdiction, and (2) the assertion of jurisdiction satisfies constitutional due-process guarantees.

Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex.2010). The long-arm statute permits the exercise of personal jurisdiction over nonresident defendants that do business in Texas. See PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex.2007). The long-arm statute provides a non-exclusive list of what constitutes “doing business” in Texas, including (1) contracting with a Texas resident and either party is to perform the contract in whole or in part in Texas, and (2) committing a tort in whole or in part in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2008). Personal jurisdiction over a nonresident defendant satisfies constitutional due-process guarantees when the nonresident defendant has established minimum contacts with the forum state and the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Kelly, 301 S.W.3d at 658.

Minimum contacts are established when the nonresident defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Kelly, 301 S.W.3d at 657-58. A defendant's contacts with a forum can give rise to either specific or general jurisdiction. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009). Specific jurisdiction is established if the defendant's alleged liability arises out of or relates to the defendant's contacts with the forum state. Id. at 338. In contrast, general jurisdiction is established if the defendant has made continuous and systematic contacts with the forum, regardless of whether the defendant's alleged liability arises from those contacts. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007). “A general jurisdiction inquiry, therefore, is very different from a specific jurisdiction inquiry and involves a more demanding minimum contacts analysis, with a substantially higher threshold.” PHC-Minden, 235 S.W.3d at 168 (internal quotations and citations omitted).

Special Appearances and Standard of Review

The plaintiff bears the initial burden to plead sufficient allegations to invoke jurisdiction under the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574. Once the plaintiff has pleaded sufficient jurisdictional allegations, a defendant who contests the trial court's exercise of personal jurisdiction bears the burden of negating all bases of jurisdiction alleged by the plaintiff. Id. “The defendant can negate jurisdiction on either a factual or legal basis.” Kelly, 301 S.W.3d at 659. A defendant negates jurisdiction on a factual basis by presenting evidence to disprove the plaintiff's jurisdictional allegations. Id. A defendant negates jurisdiction on a legal basis by showing that even if the plaintiff's jurisdictional allegations are true, the allegations are legally insufficient to establish personal jurisdiction. Id.

The ultimate question of whether a trial court has personal jurisdiction over a nonresident defendant is a question of law. Moki Mac, 221 S.W.3d at 574. And because jurisdiction is a question of law, an appellate court reviews a trial court's determination of a special appearance de novo. Id. When a trial court does not issue findings of fact and conclusions of law to support its ruling, as in this case, we imply in favor of the trial court's ruling all necessary fact findings that are supported by the evidence. Retamco Operating, 278 S.W.3d at 337.

Analysis

To determine whether plaintiffs met their initial burden to plead sufficient allegations to invoke jurisdiction over Alencar under the Texas long-arm statute, we look at the jurisdictional facts pleaded in their petition, as well as the jurisdictional facts alleged in their response to Alencar's special appearance. See Tex.R. Civ. P. 120a(3); Flanagan v. Royal Body Care, Inc., 232 S.W.3d 369, 374 (Tex.App.-Dallas 2007, pet. denied).

In their second amended petition, which was filed two weeks before the hearing on Alencar's special appearance and was the live petition at the time of the hearing, plaintiffs (1) generally alleged that Alencar made material misrepresentations to them about the Rafard Facility and failed to make payments on two promissory notes; (2) asserted claims against Alencar for fraud, negligent misrepresentation, breach of contract; and (3) pleaded the following jurisdictional facts against Alencar:

[Alencar] is an individual citizen of the State of Florida. The causes of action asserted against Alencar arose from or are connected with the purposeful acts committed by Alencar in the State of Texas, or directed against residents of the State of Texas, including multiple telephone conferences with Plaintiffs or their representatives in this State for purposes of inducing Plaintiffs to make the investments set forth below, trips to Texas for purposes of promoting the investments by Plaintiffs as set forth below, and receipt of money from Texas based on his representations as set forth below. Furthermore, Alencar has a history of contacts with the State of Texas, including entering into contracts performable in this State, ownership and interest in Texas businesses, and has an outstanding judgment against him in this State. At all relevant times, Alencar had significant contacts with Texas, and directed his actions towards residents of Texas, which justify the imposition of personal jurisdiction on him in Texas.

In their response to Alencar's special appearance, which was filed five days before the hearing, plaintiffs argued that Alencar is subject to general and specific jurisdiction in Texas and included more detailed jurisdictional allegations against Alencar, along with citations to supporting evidence. 1

First, to support their contention that Alencar is subject to general jurisdiction in Texas, plaintiffs made the following allegations:

(1) Alencar is an officer of CalBraz Management, LLC, a Texas limited liability company formed in 2008 and headquartered in Plano, Texas;
(2) Alencar had a commission agreement with TriAlpha LLC, a Texas limited liability company formed in 2005, and made calls and sent
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    ...is satisfied by an allegation that the nonresident defendant is doing business in Texas or committed tortious acts in Texas. Alencar v. Shaw, 323 S.W.3d 548, 553 App.-Dallas 2010, no pet.). If the plaintiff does not meet this burden, the defendant need only prove that it does not reside in ......
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    ...by an allegation that the nonresident defendant is doing business in Texas or committed tortious acts in Texas. Alencar v. Shaw , 323 S.W.3d 548, 553 (Tex. App.—Dallas 2010, no pet.). If the plaintiff does not meet this burden, the defendant need only prove that it does not reside in Texas ......
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    ...The record does not demonstrate that such an argument was raised below. As a result, we decline to consider it on appeal. Alencar v. Shaw, 323 S.W.3d 548, 556 (Tex.App.-Dallas 2010, no pet.) (declining to address fiduciary shield doctrine where not argued to trial court below). 6. Given tha......
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    ...... nonresident defendant is doing business in Texas or committed. tortious acts in Texas. See id. (citing Alencar. v. Shaw, 323 S.W.3d 548, 553 (Tex. App.-Dallas 2010, no. pet.)). If the plaintiff does not meet this burden, the. defendant need ......
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