Todd Enright v. Asclepius Panacea, LLC Asclepius Panacea GP, LLC Daily Pharmacy, LLC Daily Pharmacy GP, LLC And Toth Enterprises II, P .A. D/B/A Victory Medical Center ( 2015 )

ACCEPTED
03-15-00348-CV
7634511
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/2/2015 10:38:56 AM
JEFFREY D. KYLE
CLERK
Thomas S. Leatherbury tleatherbury@velaw.com
Tel +1.214.220.7792 Fax +1.214.999.7792
October 30, 2015
By Electronic Filing
Jeffrey D. Kyle
Clerk, Third Court of Appeals
P.O. Box 12547 FILED IN
Austin, Texas 78711 3rd COURT OF APPEALS
AUSTIN, TEXAS
11/3/2015 2:25:56 PM
Re: Enright v. Asclepius Panacea, LLC et al.; No. 03-15-00348-CV
JEFFREY D. KYLE
Clerk
Dear Mr. Kyle:
The above-captioned appeal is scheduled for oral argument on November 4,
2015 before the panel of Justices Puryear, Goodwin, and Bourland. We ask that
you please bring this letter to the attention of the panel.
The trial court denied the special appearance of nonresident defendant Todd
Enright based on evidence that Enright—while working out of state as an agent of
the company White Winston—took part in phone calls and e-mails with persons
who were located in Texas. Enright acknowledges that his status as an agent of
White Winston does not categorically protect him from specific personal
jurisdiction in Texas. Ennis v. Loiseau, 164 S.W.3d 698, 707 (Tex. App.—Austin
2005, no pet.) (fiduciary-shield doctrine does not apply where plaintiff asserts
specific personal jurisdiction and alleges intentional tortious conduct). But
Enright’s status as an agent of White Winston is still an important factor in the
personal-jurisdiction analysis.
For example, as explained in the Brief of Appellant (pp.15, 18), personal
jurisdiction is lacking here because Todd Enright sought no benefit from Texas.
Where a plaintiff sues a nonresident agent in his individual capacity, the plaintiff
must prove that the nonresident agent—in his individual capacity—purposefully
availed himself of the benefits and protections of the Texas forum. “[A] corporate
officer’s [i.e., an agent’s] tortious or fraudulent activity will only be sufficient to
establish specific jurisdiction if it satisfies the three-pronged due process inquiry”
(Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 581 (Tex. App.—Austin 2006, no
pet.) (emphasis added)), including the requirement that “the corporate officer’s
contacts with the forum demonstrate purposeful availment.” Atiq v. CoTechno
Grp., Inc., No. 03-13-00762-CV, 2015 WL 4195051, at *6 (Tex. App.—Austin
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October 30, 2015 Page 2
July 9, 2015, no pet. h.). Purposeful availment can exist only where the defendant
“seek[s] some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.”
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005).
Thus, for personal jurisdiction to exist over an agent in his individual
capacity, the agent must have sought some personal benefit, advantage, or profit
from Texas. It is not enough for the plaintiff to show that (1) the agent’s
nonresident principal will benefit from the agent’s activities in Texas, or that (2)
the agent’s nonresident principal compensates the nonresident agent for his work.
Compare Hone v. Hanafin, No. 05-01-00897-CV, 2003 WL 22020778, at *6 (Tex.
App.—Dallas Aug. 28, 2003, pet. denied) (mem. op.) (“Any act taken by [the
agent] was advancing the interest of [the corporation] and not [the agent]
individually. Just because [the agent] also was a minority shareholder who may
have benefitted from the corporation’s success which may in part have been due to
[the plaintiff’s] work is too attenuated a contact to extend jurisdiction over [the
corporation] to jurisdiction over [the agent] individually.”), Cerbone v. Farb, 225
S.W.3d 764, 771 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (no personal
jurisdiction over agent who signed contract on behalf of corporation; any benefit
would inure to corporation, and not to agent in his individual capacity), and Joiner
v. Coast Paper & Supply, No. 13-07-00623-CV, 2008 WL 2895851, at *8 (Tex.
App.—Corpus Christi July 29, 2008) (mem. op.) (“[Plaintiff] has not established
that [Defendant] sought some benefit, advantage, or profit from Texas in her
individual capacity.”), with Camac v. Dontos, 390 S.W.3d 398, 413 (Tex. App.—
Dallas 2012, no pet.) (“[A]s an officer in charge of franchise sales it was to his
personal advantage or benefit to complete the transaction, especially at a time
when the company was in dire financial straights [sic].” (emphasis added)), and
Tabacinic v. Frazier, 372 S.W.3d 658, 671 (Tex. App.—Dallas 2012, no pet.)
(finding personal benefit to agents where “[t]he proceeds and benefits from the sale
of the Home were used to make other investments through entities the [agents]
created and controlled.” (emphasis added)).
The record on this appeal contains no evidence to support the trial court’s
essential, implied finding that Todd Enright, in his individual capacity, sought
some personal benefit from Texas. The record shows:
• At all relevant times, Todd Enright was working on behalf of White
Winston, the creditor to QVL. CR228 ¶¶ 4–5, 229 ¶ 11. Todd Enright has
not had any personal contacts with Texas in the last decade. CR228 ¶ 4.
During the times relevant to this case, all of Enright’s Texas contacts were
on behalf of White Winston, the out-of-state company that owns debt in
Texas-based QVL. Id. at 228–29 ¶¶ 5–6, 11.
October 30, 2015 Page 3
• Todd Enright does not own QVL’s debt. As creditor to QVL, White
Winston stands to benefit from QVL’s activities in Texas. Id. ¶¶ 6, 11. By
contrast, the individual Todd Enright does not own any debt in QVL. Id.
• Todd Enright does not have an equity interest in White Winston. Enright
would not directly share in a benefit received by White Winston (QVL’s
creditor) because Enright does not own any equity in White Winston.
CR500. Enright holds the title of “partner” with White Winston, but
Enright’s title of “partner” is just a label. Id.
• Todd Enright does not hold an officer position at White Winston. Indeed,
Enright is not even an employee of White Winston. CR502. Enright works
for Lillian White Investments, and on behalf of Lillian White Investments,
Enright provides consulting services to White Winston. Id. As a consultant,
Enright answers to at least two superiors at White Winston. CR501;
CR210 ¶ 6.
• There is no evidence of any bonus or commission to Todd Enright. While
Enright receives compensation for his work, the record contains no
evidence that Enright’s compensation will change—for the better or
worse—as a result of anything that happens in Texas. For example, there is
no evidence in the record as to whether Enright receives a bonus or
commission based on the performance of QVL or its creditor, White
Winston.
Texas courts lack personal jurisdiction over Todd Enright, in his individual
capacity, because, among other reasons, there is no evidence that Todd Enright, in
his individual capacity, reached out to Texas to obtain a personal benefit from the
Texas forum. See Hone, 2003 WL 22020778, at *6; Cerbone, 225 S.W.3d at 771;
Joiner, 2008 WL 2895851, at *8.
Sincerely yours,
/s/ Thomas S. Leatherbury
Thomas S. Leatherbury
October 30, 2015 Page 4
CERTIFICATE OF COMPLIANCE
I certify that this letter contains 1,075 words. This is a computer-generated
document created in Microsoft Word, using 14-point typeface for all text, except
for footnotes which are in 12-point typeface. In making this certificate of
compliance, I am relying on the word count provided by the software used to
prepare the document.
/s/ Michael A. Heidler
Michael A. Heidler
October 30, 2015 Page 5
CERTIFICATE OF SERVICE
On October 30, 2015, a true and correct copy of this letter was served on the
following attorneys via electronic filing:
Eric J. Taube
Paul Matula
Taube Summers Harrison Taylor Meinzer Brown, LLP
100 Congress Avenue, 18th Floor
Austin, Texas 78701
etaube@taubesummers.com
pmatula@taubesummers.com
/s/ Michael A. Heidler
Michael A. Heidler