Jim Richardson, Richardson Outdoor Advertising, Inc. and Action Display, Inc. v. MH Outdoor Media, LLC ( 2016 )

Affirmed and Memorandum Opinion filed September 15, 2016.
In The
Fourteenth Court of Appeals
NO. 14-16-00041-CV
JIM RICHARDSON, RICHARDSON OUTDOOR ADVERTISING, INC.,
AND ACTION DISPLAY, INC., Appellants
V.
MH OUTDOOR MEDIA, LLC, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2013-57897
MEMORANDUM OPINION
In this interlocutory appeal from the denial of a special appearance, the main
question presented is whether the trial court erred by finding that three nonresident
defendants had established minimum contacts in the state of Texas. The plaintiff, a
Texas limited liability company, alleged in its petition that it was defrauded in a
conspiracy between a Texas resident and the three nonresident defendants. To
support its claim that the nonresident defendants were amenable to jurisdiction in
this state, the plaintiff introduced evidence that the nonresident defendants had
traveled to Texas to meet with the plaintiff and develop a business relationship,
which was later exploited in the alleged conspiracy. We conclude that this
evidence, in addition to other evidence discussed in this opinion, supports the trial
court’s finding that the nonresident defendants established minimum contacts in
Texas. We therefore affirm the trial court’s order denying the special appearance.
BACKGROUND
MH Outdoor Media, LLC is a Texas limited liability company that manages
billboards and other outdoor media assets. In 2011, MH Outdoor hired Curtis
Brooks, a Texas resident, to acquire and manage assets that fit the company’s
business model. For nearly two years, Brooks negotiated on behalf of MH Outdoor
to acquire both billboards and billboard companies located throughout the United
States. By 2013, MH Outdoor learned that certain of these transactions were
completed at inflated prices and that Brooks had received kickbacks following
each purchase.
MH Outdoor began an investigation into Brooks’s transactions, which led to
the three nonresident defendants involved in this appeal. Jim Richardson is an
Alabama resident and the president of two Alabama corporations: Richardson
Outdoor Advertising, Inc. and Action Display, Inc. For ease of reference, we
identify Richardson and his corporations collectively as the Richardson
Defendants. Between 2011 and 2013, MH Outdoor paid the Richardson
Defendants more than $11 million for the purchase of billboards and other assets,
all of which were located in either Alabama, Florida, or Tennessee. During the
same period, the Richardson Defendants wired at least $1.75 million to Brooks’s
personal bank account in Texas.
2
MH Outdoor filed suit in Texas against Brooks, the Richardson Defendants,
and several additional parties not involved in this appeal. Among its asserted
claims, MH Outdoor alleged that the Richardson Defendants conspired with
Brooks to sell billboards to MH Outdoor at above-market prices and to split the
resulting profits.
The Richardson Defendants filed a special appearance, challenging whether
a Texas court could exercise specific jurisdiction over them.1 Attached to their
special appearance was a sworn declaration, in which the Richardson Defendants
stated that they had no offices, employees, or presence in Texas. They admitted
that they had traveled to Texas in 2011 to meet with Brooks and other
representatives of MH Outdoor. However, the Richardson Defendants asserted that
“no business was transacted” at this meeting and that they were just “get[ting]
acquainted personally.” The Richardson Defendants also admitted that they came
to Texas to meet with MH Outdoor on a second occasion, after MH Outdoor
discovered the payments to Brooks.
In a response, MH Outdoor produced an affidavit from its president, Mac
Haik, who testified that he personally attended the initial meeting with Brooks and
the Richardson Defendants in 2011. Controverting the Richardson Defendants’
evidence, Haik testified in his affidavit that the meeting “was solely related to
business deals between Richardson and MH Outdoor regarding billboard
transactions” and “was not a personal visit.” Haik further testified that, in the two
years following the meeting, MH Outdoor entered into at least thirty transactions
with the Richardson Defendants, and in many of those transactions, “Richardson
1
The Richardson Defendants also challenged the exercise of general jurisdiction, but MH
Outdoor expressly chose to not litigate that issue. Accordingly, we focus on just the question of
specific jurisdiction.
3
was the one who reached out to MH Outdoor with potential deals, not the other
way around.”
Haik testified that the Richardson Defendants came to Texas for a second in-
person meeting after MH Outdoor realized that Brooks had been receiving
kickbacks from billboard companies unrelated to the Richardson Defendants. Haik
testified that, at this second meeting, the Richardson Defendants misled MH
Outdoor about the nature of the payments that they had been making to Brooks.
According to Haik, the Richardson Defendants represented that the money they
had wired to Brooks was a loan, even though there was no note, interest rate, or
repayment.
Haik testified that there were numerous other communications with the
Richardson Defendants after Brooks’s kickbacks had come to light. However, in
these communications, the Richardson Defendants continued to conceal their
relationship with Brooks. In one email correspondence, the Richardson Defendants
offered to manage the assets of MH Outdoor in Alabama, Florida, and Tennessee.
Later, after proposing additional business dealings, the Richardson Defendants
opined that “the Curtis [Brooks] mess and dishonesty to Mac [Haik]. . . should
[not] be a negative on [their] part.”
The trial court conducted a hearing on the special appearance. Although no
live testimony was taken, the Richardson Defendants presented an argument to the
trial court, in which they characterized their payments to Brooks as a finder’s fee,
rather than a kickback or loan. At the end of the hearing, the trial court ruled
against the Richardson Defendants and denied the special appearance. The
Richardson Defendants moved for findings of fact and conclusions of law, but the
trial court denied that motion as well.
4
ISSUES PRESENTED
The Richardson Defendants raise three issues in this appeal. In their first two
issues, they challenge the trial court’s ruling on their special appearance, arguing
that there is no basis for either specific jurisdiction or general jurisdiction. Because
MH Outdoor only asserts specific jurisdiction over the Richardson Defendants, we
do not consider the arguments related to general jurisdiction. In their third issue,
the Richardson Defendants argue that the trial court erred by not entering findings
of fact and conclusions of law. We address this issue in our discussion of the
standard of review.
PERSONAL JURISDICTION
Texas courts have personal jurisdiction over a nonresident defendant when
the Texas long-arm statute authorizes such jurisdiction and when the exercise of
jurisdiction is consistent with the guarantees of due process. See Spir Star AG v.
Kimich, 310 S.W.3d 868, 872 (Tex. 2010). The Texas Supreme Court has
interpreted the broad language of the Texas long-arm statute to extend Texas
courts’ exercise of personal jurisdiction “as far as the federal constitutional
requirements of due process will permit.” See BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002) (citing Tex. Civ. Prac. & Rem. Code
§ 17.042). Those requirements are fulfilled when the defendant has “certain
minimum contacts with [the forum state] such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.” See Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945).
A defendant’s contacts in the forum state may give rise to either general
jurisdiction or specific jurisdiction. See Zinc Nacional, S.A. v. Bouche Trucking,
Inc., 308 S.W.3d 395, 397 (Tex. 2010) (per curiam). If the defendant’s contacts
have been continuous and systematic, such that the defendant is essentially at home
5
in the forum, general jurisdiction is established, regardless of whether the
defendant’s alleged liability arises from those contacts. See Moki Mac River
Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007). If the defendant’s
contacts have been isolated or sporadic, rather than continuous and systematic, the
trial court may exercise specific jurisdiction, provided that there is a substantial
connection between the defendant’s contacts with Texas and the operative facts of
the litigation. Id. at 585.
The plaintiff and the defendant bear shifting burdens of proof in a challenge
to personal jurisdiction. See Kelly v. General Interior Constr., Inc., 301 S.W.3d
653, 658 (Tex. 2010). The plaintiff has the initial burden of pleading allegations
that would permit a trial court to exercise personal jurisdiction over the nonresident
defendant. See BMC Software, 83 S.W.3d at 793. This minimal pleading
requirement is satisfied by an allegation that the nonresident defendant is doing
business in Texas. See Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). Once the plaintiff has met this burden, the
defendant assumes the burden of negating all potential bases for personal
jurisdiction that exist in the plaintiff’s pleadings. See BMC Software, 83 S.W.3d at
793.
MH Outdoor asserted in its petition that the trial court had jurisdiction over
the Richardson Defendants because they intentionally did business in Texas. This
allegation satisfied MH Outdoor’s minimal pleading requirement. See Huynh, 180
S.W.3d at 619–20. Accordingly, the burden shifted to the Richardson Defendants
to negate this basis for the trial court’s exercise of jurisdiction.
STANDARD OF REVIEW
Whether a trial court has jurisdiction over a defendant is a question of law,
which we review de novo. See BMC Software, 83 S.W.3d at 794. In deciding the
6
jurisdictional issue, the trial court may also be required to resolve questions of fact.
Id. The Richardson Defendants contend that if fact questions are raised, then the
trial court must grant a request to enter findings into the record, or else the trial
court commits error. In the absence of written findings, the Richardson Defendants
argue that we must conduct a de novo review of the record without considering any
disputed facts. This argument does not align with any of our rules or well-settled
precedents.
Rule 28.1(c) of the Texas Rules of Appellate Procedure provides that a trial
court need not file findings of fact in an appeal from an interlocutory order. See
Tex. R. App. 28.1(c). This rule applies in an interlocutory appeal from the denial of
a special appearance. See Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 428
(Tex. App.—Houston [1st Dist.] 2011, pet. denied) (holding that the trial court did
not commit error by refusing a request to enter findings).
Recently, in another case involving a special appearance, the Texas Supreme
Court confirmed that findings are not required if the parties presented conflicting
evidence. See TV Azteca v. Ruiz, 490 S.W.3d 29, 36 n.4 (Tex. 2016). When the
trial court fails to resolve such disputes with written findings, the Supreme Court
instructed that we are to follow a familiar standard of review: we must resolve the
disputed fact questions in favor of the trial court’s determination and we must
imply all relevant facts necessary to support the trial court’s judgment that are
supported by the evidence. Id. These implied findings are not conclusive, though,
and they may be challenged for legal and factual sufficiency. See BMC Software,
83 S.W.3d at 795.
In a legal-sufficiency challenge, we review the evidence in the light most
favorable to the challenged finding and indulge every reasonable inference that
would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
7
We credit favorable evidence if a reasonable fact finder could and disregard
contrary evidence unless a reasonable fact finder could not. Id. at 827. The
evidence is legally insufficient when (1) there is a complete absence of evidence of
a vital fact, (2) the court is barred by rules of law or evidence from giving weight
to the only evidence offered to prove a vital fact, (3) the evidence offered to prove
a vital fact is no more than a mere scintilla, or (4) the evidence conclusively
establishes the opposite of the vital fact. Id. at 816.
In a factual-sufficiency challenge, we consider and weigh all of the
evidence, both supporting and contradicting the finding. See Mar. Overseas Corp.
v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We may set aside the finding only if
it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust. Id. at 407. We may not substitute our own judgment for that of the fact
finder or pass upon the credibility of witnesses. Id.
ANALYSIS
The Richardson Defendants do not argue that the exercise of personal
jurisdiction would offend traditional notions of fair play and substantial justice.
However, they do argue that they never established minimum contacts in Texas.
Their brief raises the following questions: (1) whether there is legally and factually
sufficient evidence to show that they purposefully availed themselves of doing
business in Texas; (2) assuming there is sufficient evidence, whether their contacts
are substantially connected to the claims asserted by MH Outdoor; and (3) whether
the fiduciary shield doctrine protects Richardson, individually, from the trial
court’s exercise of jurisdiction. We examine these points in turn.
8
I. Purposeful Availment
To establish minimum contacts, the defendant must have “purposefully
avail[ed] itself of the privilege of conducting activities within the forum state, thus
invoking the benefits and protections of its law.” See Retamco Operating, Inc. v.
Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009). Due process requires
purposeful availment because personal jurisdiction “is premised on notions of
implied consent—that by invoking the benefits and protections of a forum’s laws, a
nonresident consents to suit there.” See Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 785 (Tex. 2005).
Three principles guide the analysis when deciding whether a nonresident
defendant has purposefully availed itself of the privilege of conducting activities in
Texas: (1) only the defendant’s contacts with Texas are relevant, not the unilateral
activity of another party or third person; (2) the defendant’s acts must be
purposeful and not random, fortuitous, or attenuated; and (3) the defendant must
seek some benefit, advantage, or profit by availing itself of the jurisdiction. See
Moki Mac, 221 S.W.3d at 575.
A. The Richardson Defendants traveled to Texas and solicited
business from MH Outdoor.
Both sides agree that the Richardson Defendants voluntarily came to Texas
to meet with MH Outdoor. The first meeting occurred in 2011, at the beginning of
the parties’ business relationship. The Richardson Defendants claimed that this
initial meeting was a personal visit, where no business was transacted. However,
MH Outdoor disputed that characterization. In his affidavit, Haik testified that the
meeting was not personal and that its purpose was actually to evaluate proposed
billboard deals. In accordance with our standard of review, we assume that the trial
9
court resolved this conflict in favor of MH Outdoor because Haik’s affidavit
supports the trial court’s judgment.
The Richardson Defendants came to Texas to meet with MH Outdoor a
second time after MH Outdoor discovered the payments to Brooks. The
Richardson Defendants suggest that this meeting is not relevant to the minimum-
contacts analysis because it occurred “well after any of the conduct alleged to have
occurred when Brooks was involved.” But the evidence supports a finding that this
meeting actually furthered the alleged conspiracy. According to Haik, the
Richardson Defendants misled MH Outdoor at this meeting by representing their
payments to Brooks as loans when they were really kickbacks.
These two in-person meetings in Texas are sufficient by themselves to
demonstrate purposeful availment. See Moncrief Oil Int’l, Inc. v. OAO Gazprom,
414 S.W.3d 142, 151 (Tex. 2013) (holding that a Russian company had
purposefully availed itself of doing business in Texas by attending two meetings in
Texas with a Texas corporation); Max Protetch, Inc. v. Herrin, 340 S.W.3d 878,
887 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding that a New York
defendant had “crossed a bright line and purposefully availed itself of the privilege
of conducting business in Texas” when the defendant initiated a face-to-face
meeting with a Texas client in Texas).
In addition to their travels, the Richardson Defendants had numerous
telephone and email conversations with MH Outdoor. Haik testified that there were
“hundreds, if not thousands” of these conversations over the course of the parties’
relationship, and “[a]ll or practically all of these communications concerned the
billboard transactions.” Furthermore, in many of these communications, Haik
testified that it was the Richardson Defendants “who reached out to MH Outdoor
with potential deals, not the other way around.” The Richardson Defendants
10
disputed this last point, claiming in their sworn declaration that they never solicited
MH Outdoor. But again, the trial court was free to resolve this conflict in favor of
MH Outdoor, and we defer to that implied finding.
Standing alone, the telephone and email communications may be insufficient
to confer specific jurisdiction. See Riverside Exports, Inc. v. B.R. Crane & Equip.,
LLC, 362 S.W.3d 649, 655 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)
(explaining that phone numbers and emails do not necessarily indicate anything
about the location of either the sender or the recipient). Nevertheless, we may
factor these communications into our analysis because the Richardson Defendants
made these contacts to promote the same business relationship that was formed
with MH Outdoor during the parties’ in-person meeting in Texas. See M & F
Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 453 S.W.3d 492, 506 (Tex.
App.—Houston [14th Dist.] 2014, pet. granted). When considered alongside the
evidence of the Richardson Defendants’ travels to Texas, these communications
support the trial court’s finding that they purposefully availed themselves “of the
privilege of conducting activities within the forum state, thus invoking the benefits
and protections of its law.” See Retamco Operating, Inc., 278 S.W.3d at 338.
B. The Richardson Defendants’ arguments lack merit.
The Richardson Defendants challenge the trial court’s implied finding of
purposeful availment in several respects. First, they argue that they did not
purposefully avail themselves of doing business in Texas because all of their
contacts with MH Outdoor focused on business ventures in other states.2
2
In their special appearance, the Richardson Defendants identify these states as being
Alabama, Florida, and Tennessee, but in their appellate brief, they refer to a slightly different
trio: Florida, Georgia, and Tennessee. MH Outdoor did not allege in its petition that any business
dealings were conducted in Georgia, and we are not aware of any evidence that would support
such a claim. There is evidence, however, that the parties conducted business in Alabama. In any
11
Relying on KC Smash 01, LLC v. Gerdes, Hendrichson, Ltd., 384 S.W.3d
389 (Tex. App.—Dallas 2012, no pet.), the Richardson Defendants propose that
“the parties have to seek to engage in a business venture in Texas” before a
nonresident defendant’s contacts will be sufficient to confer specific jurisdiction. If
by “engage in a business venture in Texas” the Richardson Defendants mean that a
nonresident defendant must establish a business entity in Texas or acquire property
in Texas, then their argument goes too far. A nonresident defendant “with no
physical ties to Texas” may be haled into a Texas court simply by soliciting clients
in Texas for an out-of-state business. See Moncrief, 414 S.W.3d at 154 (discussing
Siskind v. Villa Foundation for Education, Inc., 642 S.W.2d 434, 436 (Tex. 1982));
see also Michiana, 168 S.W.3d at 789–90 (discussing cases finding specific
jurisdiction when the forum contact “was aimed at getting extensive business in or
from the forum state”).
We disagree with the Richardson Defendants’ characterization of the
holding in KC Smash. The court in that case did not create any novel requirements,
as the Richardson Defendants seem to suggest with their proposed rule. Rather, the
court correctly followed the approach required by our case law. The court looked
at all of the nonresident defendant’s contacts and then asked whether those
contacts, considered collectively, showed that the nonresident defendant had
purposefully sought a benefit, advantage, or profit in Texas. See KC Smash, 384
S.W.3d at 394. We follow the same approach in this case, but the outcome is
different because the facts are different. The nonresident defendant in KC Smash
never traveled to Texas, id. at 393, whereas the Richardson Defendants voluntarily
came to this state for the reason of soliciting business from MH Outdoor. This fact
event, this discrepancy does not affect our ultimate conclusion that the Richardson Defendants
established minimum contacts in Texas.
12
alone demonstrates that the Richardson Defendants purposefully availed
themselves of doing business in Texas.
In their supplemental brief, the Richardson Defendants argue that their
proposed rule is supported by two recent decisions from the Texas Supreme Court,
citing Searcy v. Parex Resources, Inc., Nos. 14-0293 & 14-0295, — S.W.3d —,
2016 WL 3418248 (Tex. June 17, 2016) and Cornerstone Healthcare Group
Holding, Inc. v. Nautic Mgmt. VI, L.P., Nos. 14-0538 & 14-0539, — S.W.3d —,
2016 WL 3382159 (Tex. June 17, 2016). Both of these cases recognize that a trial
court may exercise specific jurisdiction when, in certain business disputes, the
nonresident defendant specifically sought out a Texas business or Texas assets. See
Searcy, 2016 WL 3418248, at *9 (“Parex Canada appears to have known that
Nabors had operations in Texas, but it did not specifically seek out a Texas seller
or Texas assets, let alone attempting to meddle with a contract governed by Texas
law or develop a Texas business.”); Cornerstone, 2016 WL 3382159, at *6
(“Conversely, the respondents here specifically sought both a Texas seller and
Texas assets.”). However, neither case goes so far as to say that the nonresident
defendant must, as a prerequisite to personal jurisdiction, “seek to engage in a
business venture in Texas.”
Searcy actually demonstrates that the trial court may exercise specific
jurisdiction over the Richardson Defendants. In that case, the Texas Supreme Court
held that a nonresident defendant had established sufficient minimum contacts in
Texas because, just like the Richardson Defendants, the nonresident defendant
voluntarily came to Texas for in-person meetings and allegedly made
misrepresentations at those meetings regarding a proposed business deal outside of
Texas. See Searcy, 2016 WL 3418248, at *12–13.
13
In their next argument, the Richardson Defendants assert that their contacts
with Texas were random or fortuitous. They explain that their contacts could have
occurred anywhere—e.g., their meetings with MH Outdoor “could have happened
in Indiana or Georgia,” or their communications “could have been with someone in
Louisiana or Rhode Island”—but they all occurred in Texas because MH Outdoor
happens to be located here. This point is not persuasive.
The relevant factor is not that the Richardson Defendants may have been
willing to make their contacts in a forum other than Texas. Instead, it is that they
reached out from beyond their home state and created continuing relationships and
obligations with a business in Texas. See Michiana, 168 S.W.3d at 785 (“Sellers
who ‘reach out beyond one state and create continuing relationships and
obligations with citizens of another state’ are subject to the jurisdiction of the latter
in suits based on their activities.” (quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462, 473 (1985))). The Richardson Defendants reached out to Texas when
they voluntarily came here and met with MH Outdoor. They also maintained this
relationship with Texas by having continued business communications with MH
Outdoor. These contacts with Texas were purposeful, not random or fortuitous.
The Richardson Defendants also argue that the evidence is legally and
factually insufficient to show that they purposefully availed themselves of doing
business in Texas. Viewed in the light most favorable to the trial court’s ruling, the
evidence shows that the Richardson Defendants traveled to Texas, that they met
with MH Outdoor to discuss billboard transactions, and that they continued these
business discussions over telephone and email. This evidence is legally sufficient
to demonstrate purposeful availment, as we held above.
The Richardson Defendants have not fleshed out the contours of their
factual-sufficiency challenge. They identify no specific evidence in their brief that
14
conflicts with the trial court’s implied finding of purposeful availment. From our
review of the record, only two questions of fact stand out in the minimum-contacts
analysis. The first involves the purpose of the parties’ initial meeting in Texas: the
Richardson Defendants claimed that it was a personal visit, whereas MH Outdoor
claimed that it was business-related. The second is whether the Richardson
Defendants ever solicited MH Outdoor in Texas: the Richardson Defendants
denied that point, whereas MH Outdoor insisted on it. We assume that the trial
court resolved both of these questions in favor of MH Outdoor, and based on the
record as a whole, we cannot say that either implied finding is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, we
overrule the legal-sufficiency and factual-sufficiency challenges.
II. Substantial Connection
“[F]or a nonresident defendant’s forum contacts to support an exercise of
specific jurisdiction, there must be a substantial connection between those contacts
and the operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585. Specific
jurisdiction requires that we analyze the jurisdictional contacts on a claim-by-claim
basis, unless all claims arise from the same contacts. See Moncrief, 414 S.W.3d at
150–51.
MH Outdoor asserted claims for conspiracy, breach of fiduciary duty, fraud,
conversion, and unjust enrichment. All of these claims arise out of and relate to the
kickback scheme between Brooks, the Richardson Defendants, and certain
additional parties not involved in this appeal. These claims also have a substantial
connection with the Richardson Defendants’ minimum contacts with Texas. The
Richardson Defendants came to Texas in 2011 to solicit business from MH
Outdoor, and the business relationship that they formed was exploited in the
alleged kickback scheme with Brooks. And when the Richardson Defendants
15
returned to Texas after Brooks was terminated by MH Outdoor, the Richardson
Defendants misrepresented their involvement in that kickback scheme.
The Richardson Defendants argue that a substantial connection is lacking
because no reasonable person could find that any of the legally relevant acts of
each claim occurred in Texas. When they address the claims for conversion and
unjust enrichment, for example, the Richardson Defendants emphasize that the
converted property, if any, would no longer be in Texas and would have to be
disgorged from another state. The gist of this argument seems to be that the Texas
contacts are not substantially connected to the claims because the alleged torts
were completed in other states. But that is not the test. The test is whether the
“relevant acts (i.e., those connected to [the] claims) occurred, at least in part, in
Texas.” See Kelly, 301 S.W.3d at 660–61; see also Michiana, 168 S.W.3d at 791–
92 (disapproving of an approach that makes specific jurisdiction dependent on
whether the contacts were tortious). The evidence produced by MH Outdoor
satisfies this test.
The Richardson Defendants also make certain merits-based arguments. They
argue that the fraud claim fails as a matter of law because they owed no duty to
disclose anything to MH Outdoor. They further explain that they cannot be liable
for aiding and abetting Brooks because Brooks, as an independent contractor, owed
no fiduciary duty to MH Outdoor. And, after asserting that they have defeated all
claims, they argue that there can be no derivative claim for civil conspiracy. These
arguments are not appropriate at the special-appearance stage because the merits of
the underlying claims are not at issue when deciding whether the trial court has
personal jurisdiction over a nonresident defendant. See Dresser-Rand Group, Inc.
v. Centauro Capital, S.L.U., 448 S.W.3d 577, 584 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).
16
We conclude that the Richardson Defendants established sufficient
minimum contacts in Texas, and that these contacts are substantially connected to
the claims asserted by MH Outdoor.
III. Fiduciary Shield Doctrine
We finally address an argument advanced by Richardson, the individual, that
he is protected from the trial court’s exercise of jurisdiction under the fiduciary
shield doctrine. This doctrine provides that a nonresident officer or employee may
not be subject to personal jurisdiction when all of his contacts with the forum state
were made on behalf of his corporation or employer. See Cerbone v. Farb, 225
S.W.3d 764, 769 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Richardson argues that this doctrine applies to him because his contacts with
Texas were made in a corporate capacity, as the president of his two Alabama
corporations. Richardson relies singularly on Stull v. LaPlant, 411 S.W.3d 129
(Tex. App.—Dallas 2013, no pet.), but the court in that case applied the fiduciary
shield doctrine to a claim sounding in contract, rather than in tort. Id. at 137–38.
This court has held that the fiduciary shield doctrine “does not protect a corporate
officer from specific personal jurisdiction as to intentional torts or fraudulent acts
for which he may be held individually liable.” See Cerbone, 225 S.W.3d at 769;
see also Fjell Tech. Group v. Unitech Int’l, Inc., No. 14-14-00255-CV, 2015 WL
457805, at *5 (Tex. App.—Houston [14th Dist.] Feb. 3, 2015, pet. denied) (mem.
op.) (“A corporate employee ‘is not shielded from the exercise of specific
jurisdiction as to torts for which the . . . employee may be held individually
liable.’”). Because MH Outdoor has alleged torts for which Richardson may be
individually liable, we hold that the fiduciary shield doctrine does not protect
Richardson from the trial court’s exercise of jurisdiction.
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CONCLUSION
The trial court’s order denying the special appearance is affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
18