Booth v. Kontomitras

• Decision Date: 21 January 2016
• Docket Number: NO. 09–15–00174–CV,09–15–00174–CV
• Citation: 485 S.W.3d 461
• Parties: Michael Booth, Thomas Allen, Robert Spaak, Randy Glessner, Courtney Williams, Valerie J. Spaak, Mary Allen, Robert W. Thomas Sr., and Theresa M. Williams, Appellants v. Laura Kontomitras, Appellee
• Court: Texas Court of Appeals

485 S.W.3d 461

Michael Booth, Thomas Allen, Robert Spaak, Randy Glessner, Courtney Williams, Valerie J. Spaak, Mary Allen, Robert W. Thomas Sr., and Theresa M. Williams, Appellants
v.
Laura Kontomitras, Appellee

NO. 09–15–00174–CV

Court of Appeals of Texas, Beaumont.

Submitted on August 6, 2015
Opinion Delivered January 21, 2016

Felix Valenzuela, Valenzuela Law Firm, El Paso, for Appellants.

J. Keith Stanley, Fairchild, Price, Haley & Smith, LLP, Center, for Appellee.

Before McKeithen, C.J., Horton and Johnson, JJ.

OPINION

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.

BACKGROUND

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:

2. Parties .

a. Plaintiff is an individual with residences in the States of Texas and California.

b. Defendant Michael Booth a/k/a Michael Bourgogne is an individual whose place of employment is located at 34390 Gateway Drive, Palm Desert, California 92211. No service is necessary at this time.

c. Defendant Thomas Allen is an individual residing at 4 Scarborough Way, Rancho Mirage, California 92270. No service is necessary at this time.

485 S.W.3d 468

d. Defendant Duraworks Metals & Holdings, Inc. is a Texas corporation. Personal service may be had upon it by serving its president, Thomas Allen, at 4 Scarborough Way, Rancho Mirage, California 92270. No service is necessary at this time.

e. Defendant Robert Spaak is an individual residing at 146 Loch Lomond Road, Rancho Mirage, California 92270. No service is necessary at this time.

f. Defendant Randy Glessner is an individual whose place of employment is located at 34390 Gateway Drive, Palm Desert, California 92211. No service is necessary at this time.

g. Defendant Courtney Williams a/k/a Courtney Bourgogne is an individual residing at residing at [sic] 6416 Bradley Place, Los Angeles, California 90056. No service is necessary at this time.

h. Defendant Valerie J. Spaak is an individual residing at 146 Loch Lomond Road, Rancho Mirage, California 92270. No service is necessary at this time.

i. Defendant Mary L. Allen is an individual residing at 4 Scarborough Way, Rancho Mirage, California 92270. No service is necessary at this time.

j. Defendant Robert W. Thomas is an individual whose principal place of business is 71441 Highway 111, Rancho Mirage, California 92270. Personal service may be had upon him at that address.

k. Defendant Theresa M. Williams is an individual residing at residing at [sic] 6416 Bradley Place, Los Angeles, California 90056. Personal service may be had upon her at that address.

j. [sic] Defendant Electric Car Distributors, Inc. is a California company whose principal place of business is 71441 Highway 111, Rancho Mirage, California 92270. Personal service may be had upon it by serving its registered agent Incorp Services, Inc. at 5716 Corsa Ave., Suite 110, Westlake Village, California 91362.

....

5. This court has jurisdiction over Defendant Duraworks as Defendant is a Texas corporation whose principal place of business is in Jasper County, Texas.

6. This court has jurisdiction over each Defendant because each Defendant purposefully availed himself or itself, either individually or acting as a participant in a conspiracy with the other defendants, of the privilege of conducting activities in the state of Texas and established minimum contacts sufficient to confer jurisdiction over said Defendant, and the assumption of jurisdiction over each Defendant will not offend traditional notions of fair play and substantial justice and is consistent with the constitutional requirements of due process.

7. Plaintiff would show that each Defendant had continuous and systematic contacts with the state of Texas sufficient to establish general jurisdiction over each Defendant.

8. Plaintiff would also show that the cause of action arose from or relates to the contacts of each Defendant to the state of Texas, including but not limited to the ownership and operation of Defendant Duraworks (whether legally or illegally), thereby conferring specific jurisdiction with respect to each Defendant.¹

485 S.W.3d 469

Kontomitras alleged that Booth is a "financial predator and ‘confidence man[,]’ " and that Booth was previously convicted in the State of Washington for "Federal felony wire fraud and money laundering." She further alleged that Booth was under federal post-conviction supervision that "placed restrictions on him regarding his participation in financial transactions requiring him to engage in a shell game of accounts, people and money in an effort to elude Federal authorities." She alleged that the situation leading to his conviction in the State of Washington established a modus operandi for his scams and schemes that function similar to a "Ponzi scheme." According to Kontomitras, following his release from prison, Booth began cultivating a relationship with Kontomitras in an effort to defraud her of money, individually and through Duraworks. Kontomitras alleged that after her husband died unexpectedly in 2012, she was left with certain "financial security" and that is when "Booth began plying [sic] his confidence game trade on Plaintiff" and he convinced her to "invest and/or loan Booth almost two million dollars ... toward Duraworks and the ill-fated (and in fact non-existent) golf cart venture." Kontomitras's First Amended Original Petition further alleged as follows:

g. Duraworks Metals & Holdings, Inc. is a company established in the State of Texas at Booth's direction. Purportedly, similar to the Washington scam, Duraworks would serve as a middle man between its customers and suppliers whereby the customers would receive materials needed for a fee. Additionally, Duraworks would obtain monies from investors which would then be used to manufacture high end, deluxe golf carts for sale to the public, a portion of profits allegedly to be returned to the investors.

h. Booth is, without question, the ringleader and intellectual director of the fraudulent business practices and criminal enterprise. To Plaintiff's knowledge, despite Booth and his conspirators' activities, the lack of any production and the large influx of capital, Duraworks has yet to make any profit or to actually produce more than three actual products.

According to Kontomitras, the defendants executed a sequence of agreements beginning in September 2013. Kontomitras alleged that

...although Booth was at all times the sole negotiator and contact with Plaintiff, he refrained from signing most, but not all, of the documentation.... Most of the transactions were designed to occur through the greased palms of Allen as Booth continued his efforts to hide his involvement from Federal authorities.

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.

485 S.W.3d 470

All of the Appellants were represented by attorneys from Kemp Smith, LLP (Kemp Smith). On April 14, 2015, Kontomitras timely filed a Response to Booth's Special Appearance, along with her Affidavit and other exhibits referenced in her Response to support her allegations against each of the defendants who filed Special Appearances...