Alejandro Vivanco Alarcon as of the Estate of Araceli Alarcon Velazquez, Marie Eugenie Alarcon Velazquez, and Robert Blaauw as Receiver for Zalinco Corporation, N v. and Ocana Corporation, N v. v. Gabriel Alarcon Velazquez

Affirmed and Majority and Concurring Opinions filed May 31, 2018.
In The
Fourteenth Court of Appeals
NO. 14-16-00481-CV
ALEJANDRO VIVANCO ALARCON AS EXECUTOR OF THE ESTATE
OF ARACELI ALARCON VELAZQUEZ, DECEASED, MARIE EUGENIE
ALARCON VELAZQUEZ, AND ROBERT BLAAUW AS RECEIVER FOR
ZALINCO CORPORATION, N.V. AND OCANA CORPORATION, N.V.,
Appellants
V.
GABRIEL ALARCON VELAZQUEZ, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2006-51822
CONCURRING OPINION
The foreign receiver has standing to assert the Curacao corporations’ claims,
and the trial court and this court have jurisdiction over these claims. I join only in
the court’s judgment and write separately to address the authorities the losing party
cites but the majority does not address.
A court in Curacao1 ordered the dissolution of Zalinco Corporation, N.V.
and Ocana Corporation, N.V. (the “Companies”) and appointed appellant Robert
Blaauw the receiver for both, giving Blaauw the authority to do everything
necessary to liquidate the Companies. In the trial court Blaauw, as receiver for the
Companies, asserted various claims against appellee Gabriel Alarcon Velazquez.
In a conditional cross-issue, Gabriel2 asserts that Blaauw lacks standing to assert
these claims and the trial court lacked subject-matter jurisdiction over these claims
because a receiver created by courts outside Texas has no power to act as a
receiver in Texas, unless a Texas court appoints that receiver as an ancillary Texas
receiver. The trial court denied a motion to appoint Blaauw as an ancillary Texas
receiver, and, according to Gabriel, absent this status Blaauw has no authority to
sue in Texas courts to assert claims on behalf of the Companies. Thus, Gabriel
argues, Blaauw lacks standing to pursue the Companies’ claims in this case, and
the trial court as well as this court lack subject-matter jurisdiction over these
claims.
As support for his argument, Gabriel relies on two cases from the Supreme
Court of the United States, Booth v. Clark3 and Great Western Mining &
Manufacturing Company v. Harris.4 In neither case does the Court apply or
construe Texas law, and we are not required to follow these cases in our
1
Curacao is a constituent country within the Kingdom of the Netherlands. See In re Restraint of
All Assets Contained or Formerly Contained in Certain Inv. Accounts at UBS Fin. Servs., Inc.,
860 F. Supp. 2d 32, 34 n.2 (D. D.C. 2012). Curacao was formerly a part of the Netherlands
Antilles. See id. at 35 n.3.
2
In this opinion the term “Gabriel” is used because the three siblings have the same last name.
3
58 U.S. 322, 17 How. 322, 15 L. Ed. 164 (1854).
4
198 U.S. 561, 25 S. Ct. 770, 49 L. Ed. 1163 (1905).
2
determination of Texas law as to Gabriel’s cross-issue.5
Gabriel also cites Moseby v. Burrow, an 1880 case in which the Supreme
Court of Texas concluded that a Tennessee court lacked the power to order the
conveyance of real property in Texas.6 In the course of doing so, the Moseby court
stated that a receiver cannot act in his official capacity outside the jurisdiction of
the court that appointed the receiver.7 But, because this statement was not
necessary to the disposition of the case, it constitutes a non-binding obiter dictum.8
Gabriel also cites a recent case, In re Bridgestone Americas Tire Operations, LLC,
in which the Supreme Court of Texas concluded that guardians of children under
the law of Nuevo Leon had no authority to sue in that capacity in Texas.9
Bridgestone is not on point because it does not address foreign receivers.10 Though
Gabriel cites other Texas cases, they are not binding on this court. In sum, the
parties have not cited, and research has not revealed, any binding precedent on this
issue.
The majority states that the cases Gabriel cites are no longer authoritative.
Yet, among them are two cases from the Supreme Court of Texas. If one of those
cases were a binding precedent on today’s issue, the case still would be
authoritative no matter its age. There is no expiration date on vertical stare decisis.
As an intermediate court of appeals, our role is to apply supreme-court precedent,
5
See Panterra Corp. v. Am. Dairy Queen, 908 S.W.2d 300, 300–01 (Tex. App.—San Antonio
1995, no writ).
6
Moseby v. Burrow, 52 Tex. 396, 402–05 (1880).
7
See id. at 403–04.
8
See Univ. of Tex. Health Science Ctr. at Houston v. Crowder, 349 S.W.3d 640, 645 n.4 (Tex.
App.—Houston [14th Dist.] 2011, no pet.).
9
See In re Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 570–72 (Tex. 2015).
10
See id.
3
whether recent or ancient.11 We may not abrogate it, modify it, or dismiss it as no
longer authoritative.12
The federal law rule articulated in Booth v. Clark13 and Great Western
Mining & Manufacturing Company v. Harris14 drew sharp criticism for causing
great hardship and delay in the judicial process, because it required the
appointment of ancillary receivers in every district in which debtors had to be
sued.15 As a result of a 1948 federal statute and an amendment to Federal Rule of
Civil Procedure 17(b), courts are to determine the capacity of federal receivers in
accordance with title 28, section 754 of the United States Code, which provides
that an appointed receiver “shall have the capacity to sue in any district without
ancillary appointment.”16 In light of these changes to federal law, federal courts
have concluded that receivers appointed by courts outside the United States may
bring suit in federal court based on principles of comity.17 Comity is
“the recognition which one nation allows within its territory to the legislative,
executive or judicial acts of another nation, having due regard both to international
duty and convenience, and to the rights of its own citizens or of other persons who
are under the protections of its laws.”18
11
See Lubbock Cnty., Texas v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002);
Auz v. Cisneros, 477 S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
12
See Lubbock Cnty., Texas, 80 S.W.3d at 585; Auz, 477 S.W.3d at 360.
13
58 U.S. 322, 17 How. 322, 15 L. Ed. 164 (1854).
14
198 U.S. 561, 25 S. Ct. 770, 49 L. Ed. 1163 (1905).
15
See Mentink v. World Time Corp. of Am., 131 F.R.D. 210, 211 (S.D. Fla. 1990).
16
28 U.S.C. § 754; see Mentink, 131 F.R.D. at 211.
17
See Mentink, 131 F.R.D. at 211–12.
18
Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986) (quoting Hilton v. Guyot, 159 U.S. 113,
163–64, 16 S. Ct. 139, 40 L. Ed. 95 (1895)).
4
No binding precedent requires this court to adopt the line of cases upon
which Gabriel relies. Instead of adopting this line of cases for use under Texas
law, today this court properly adopts the better rule — the rule based on comity.
Under this rule, Blaauw, as receiver of the Companies, has standing to pursue the
claims he asserts in this case, and the trial court and this court have subject-matter
jurisdiction over these claims, without any need for ancillary receiverships.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison. (Jamison,
majority).
5