Lombardo v. Bhattacharyya
| Decision Date | 02 September 2014 |
| Docket Number | No. 05–13–01583–CV.,05–13–01583–CV. |
| Citation | 437 S.W.3d 658 |
| Parties | Sebastian LOMBARDO, Appellant v. Shouvik BHATTACHARYYA, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Jared Vitemb, Jessica Brown Wilson, Michelle B. Brookshire, Jonathan C. Wilson, Dallas, for Appellant.
Hilaree A. Casada, Todd J. Harlow, Dallas, for Appellee.
Before Justices LANG, MYERS, and BROWN.
In this interlocutory appeal, Sebastian Lombardo appeals the trial court's order denying his special appearance, concluding the trial court had specific jurisdiction over Lombardo, in an action brought by Shouvik Bhattacharyya, alleging Lombardo is liable for intentional infliction of emotional distress, defamation, fraud, fraudulent inducement, and negligent misrepresentation. In five issues, Lombardo alleges the trial court erred when it: (1) overruled his written objection to Bhattacharyya's supplemental petition, which was filed four days before the special appearance hearing, because it alleged new claims for fraud and negligent misrepresentation, and the surprise was prejudicial; (2) denied his special appearance because he is protected by the fiduciary shield doctrine since his limited contacts were in his official, corporate capacity as Chief Executive Officer and Chairman of Valtech, S.A.; (3) denied his special appearance because there was no allegation or evidence of specific Texas contacts by Lombardo for each claim, just vague and conclusory allegations of tortious conduct globally alleged against all of the defendants; (4) the evidence was legally and factually insufficient to support the trial court's findings of fact; and (5) denied his special appearance because the exercise of jurisdiction over Lombardo does not comport with traditional notions of fair play and substantial justice.
We conclude Lombardo did not preserve for appellate review his issue that the trial court erred when it overruled his written objection to Bhattacharyya's supplemental petition. Also, we need not address Lombardo's claim that the exercise of general jurisdiction is barred by the fiduciary shield doctrine because the trial court explicitly concluded there was specific jurisdiction. We conclude Lombardo failed to preserve for appellate review his contention that the fiduciary shield doctrine barred the exercise of specific jurisdiction. In addition, we conclude the evidence is legally and factually sufficient to support the trial court's challenged findings of fact. Finally, we conclude the trial court did not err when it concluded there were sufficient contacts with Texas and the exercise of personal jurisdiction over Lombardo comported with traditional notions of fair play and substantial justice. The trial court's order denying Lombardo's special appearance is affirmed.
Bhattacharyya filed his original petition against Valtech Solutions, Inc., Lombardo, and Tomas Nores, alleging claims for breach of contract, a declaratory judgment, and attorneys' fees against Valtech Solutions, and defamation and intentional infliction of emotional distress against Valtech Solutions, Lombardo, and Nores. Bhattacharyya's claims arise from alleged promises and misrepresentations made to Bhattacharyya by Lombardo and other Valtech executives in Texas in relation to the acquisition of Adea, Inc., a Dallas-based software and information technology company, and the compensation promised to Bhattacharyya in relation to the acquisition, as well as allegedly defamatory statements made that asserted Bhattacharyya had stated at the office of Valtech Solutions that he had brought a gun to that office, which were allegedly published in Texas by Lombardo and others. Bhattacharyya amended his petition to plead additional facts to support his claims. Valtech Solutions and Nores answered the lawsuit and counterclaimed.
Lombardo filed a special appearance and his verified statement, in which he identified himself as the chief executive officer and chairman of the board of Valtech, S.A., and an Italian citizen, who resides in Belgium and works at the Valtech headquarters in Paris, France. Valtech Solutions is a wholly-owned subsidiary of Valtech and is based in Dallas, Texas. Bhattacharyya filed his response to the special appearance, which also contained his verified statement and attached the declaration of Richard DuPont, the former chief financial officer of Adea and Valtech Solutions. Before the hearing on Lombardo's special appearance, Bhattacharyya filed a supplemental petition adding claims for fraud, fraudulent inducement, and negligent misrepresentation. Also, before the hearing, Lombardo filed an answer subject to his special appearance and a hearsay objection to a statement contained in Bhattacharyya's verified statement. After a hearing, the trial court denied Lombardo's special appearance, concluding there was specific, personal jurisdiction. In addition, the trial court's order denying Lombardo's special appearance contains findings of fact and conclusions of law.1 After his special appearance was denied, Lombardo filed his written objection to the Bhattacharyya's special appearance, which it appears the trial court overruled.2 This interlocutory appeal follows.
In issue one, Lombardo argues the trial court erred when it denied his objection to Bhattacharyya's supplemental petition, which was filed four days before the special appearance hearing, because it alleged new claims for fraud and negligent misrepresentation, and the surprise was prejudicial. Lombardo claims that, although he did not object to the supplemental petition during the hearing, he filed a written objection after the trial court denied his special appearance, providing the trial court with the opportunity to remedy its error. Bhattacharyya responds that Lombardo waived this issue because his objection to the supplemental pleading was untimely.
Texas Rule of Civil Procedure 63 provides:
Parties may amend their pleadings ... provided, that any pleadings ... offered for filing within seven days of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.
Tex.R. Civ. P. 63. Accordingly, pleading amendments sought within seven days of the time of trial are to be granted unless there has been a showing of surprise to the opposite party. Nichols v. Bridges, 163 S.W.3d 776, 782 (Tex.App.-Texarkana 2005, no pet.). The language of rule 63 allows an amendment to a pleading within seven days of the “date of trial.” Tex.R. Civ. P. 63; Nichols, 163 S.W.3d at 782. We have found no authority stating specifically that a special-appearance hearing is a “date of trial” as envisioned by rule 63. Nichols, 163 S.W.3d at 782 However, appellate courts have either assumed without deciding rule 63 applies or have applied it directly to special appearance hearings. Hale v. Richey, No. 10–11–00187–CV, 2012 WL 89920, at *5 (Tex.App.-Waco Jan. 11, 2012, no pet.) (mem. op.) (assumed without deciding rule 63 applies to special appearance hearing); Nichols, 163 S.W.3d at 782 ().
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an appellate complaint. Tex.R.App. P. 33.1. To preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Tex.R.App. P. 33.1.
Assuming without deciding that rule 63 required Bhattacharyya to file his supplemental petition at least seven days before the special-appearance hearing or to obtain leave from the trial court to file the supplemental petition within seven days of the hearing, Lombardo was still required to make a timely complaint about the untimeliness of Bhattacharyya's supplemental petition. See Hale, 2012 WL 89920, at *5. The record shows that Bhattacharyya filed his supplemental petition on October 7, 2013. The special-appearance hearing was held on October 11, 2013. During the hearing, Lombardo's counsel made no objection to the filing of the supplemental petition, asserted no claim of surprise, and did not request a continuance to properly respond to the supplemental petition. See Hale, 2012 WL 89920, at *6. Instead, Lombardo's counsel advised the trial court “Your Honor, we are prepared—it doesn't change any of our positions from a legal standpoint that we will address with the Court.” The trial court signed its order denying Lombardo's special appearance on October 22, 2013. Then, on November 1, 2013, Lombardo filed his written objection to Bhattacharyya's supplemental petition. According to the parties, on November 6, 2013, the trial court overruled Lombardo's objection to Bhattacharyya's supplemental petition. We conclude Lombardo did not preserve for appellate review his issue that the trial court erred when it overruled his written objection to Bhattacharyya's supplemental petition because Lombardo did not make a timely objection. Tex.R.App. P. 33.1. Accordingly, we will consider Bhattacharyya's supplemental petition when determining whether he alleged sufficient facts to permit the trial court to exercise personal jurisdiction over Lombardo. See Hale, 2012 WL 89920, at *6.
Issue one was not preserved for appellate review.
In issue two, Lombardo argues the trial court...
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