Kaye/Bassman International Corp. v. Pankaj Dhanuka and Kishore Saraogi

AFFIRMED; Opinion Filed December 3, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00398-CV
KAYE/BASSMAN INTERNATIONAL CORP., Appellant
V.
PANKAJ DHANUKA AND KISHORE SARAOGI, Appellees
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-03698-07
OPINION
Before Justices O'Neill, Lang-Miers, and Evans
Opinion by Justice Evans
In this interlocutory appeal, Kaye/Bassman International Corp. challenges the trial court’s
order granting the special appearance of nonresidents Pankaj Dhanuka and Kishore Saraogi and
dismissing the claims against them. In a single issue, appellant contends appellees are subject to
specific jurisdiction in Texas because the claims against them directly relate to and arise from
appellees’ purposeful contacts with Texas. Based on the record before us, we affirm the trial
court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is a Texas-based recruiting and staffing firm for the call-center industry and
other businesses. Appellant also refers potential business to its call center clients in exchange for
a commission based on the revenue generated by the referral. At the heart of this matter is a
dispute over appellant’s entitlement to certain commissions pursuant to an agreement it executed
with one of its call-center clients, Help Desk Now, Inc. (HDN).
In 2004, appellant contracted with HDN, a North Carolina corporation with its principal
place of business in New Jersey. Pursuant to the agreement, HDN paid appellant a commission
on all revenue generated by HDN’s client, Synchronoss Technologies, Inc., a Delaware
corporation with a principal place of business in New Jersey. The agreement provided for
performance in Texas and application of Texas law. Several addendums were later added to the
contract.
Appellees Pankaj Dhanuka and Kishore Saraogi are residents of Kolkata (Calcutta),
India. They are employed by Xplore-Tech Services Private Ltd., an Indian entity. In December
2006 or January 2007, the principals of HDN’s parent company held a meeting in Canada with
appellees to discuss Xplore-Tech’s potential acquisition of HDN. According to HDN employee
and Texas resident Mike O’Neil, it was Dhanuka who first suggested to him at the meeting in
Canada that a 2005 addendum to appellant’s agreement with HDN eliminated appellant’s
entitlement to Synchronoss commissions.1
Xplore-Tech ultimately acquired HDN on April 12, 2007, and appellees became directors
of HDN. In May 2007, HDN filed a declaratory judgment action against appellant seeking a
declaration of HDN’s rights regarding its contractual obligations to pay appellant commissions
on Synchronoss business. Appellant filed a counterclaim for breach of contract. The parties
then filed competing motions for summary judgment and the trial court granted summary
judgment in favor of HDN and against appellant. Appellant appealed and we reversed the
1
In his deposition, Dhanuka denied discussing appellant’s contract with HDN with O’Neil before April 2007.
Saraogi testified that he did not recollect whether he discussed the contract prior to the acquisition.
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judgment and remanded the case to the trial court for further proceedings. See Kaye/Bassman
Intern. Corp. v. Help Desk Now, Inc., 321 S.W.3d 806 (Tex. App.—Dallas 2012, pet. denied).
On remand, appellant added appellees as individual defendants in the case, asserting
causes of action against them for breach of fiduciary duty, tortious interference, fraudulent
transfer, civil conspiracy, and money had and received/unjust enrichment. 2 Appellant also
alleged that HDN’s corporate veil should be pierced because appellees used HDN as a sham to
perpetrate a fraud on appellant and requested a constructive trust/lien be imposed on appellees.
Appellees filed a special appearance in which they asserted, among other things, they were
residents of India, never lived in Texas, never owned property in Texas, never individually
engaged in business in Texas, and never traveled to Texas to conduct personal business of any
kind. They also argued that even if appellant’s allegations were true, any alleged actions by
appellees were taken in their capacities as officers or directors of non-Texas entities rather than
individuals and any decisions regarding compliance with the commission agreement took place
in India and were made as good faith business decisions. 3
Appellant filed a response to the special appearance contending that appellees:
(1) tortiously interfered with a contract governed by Texas law and performable in Texas;
(2) acted through and conspired with their agent, Texas resident Michael O’Neil; (3) regularly
made phone calls and sent emails to Texas in furtherance of their plan to avoid paying appellant;
and (4) instructed O’Neil and others to misrepresent to appellant their intentions to pay appellant.
Appellant also alleged that Dhanuka traveled to Texas in 2007 and 2011 in furtherance of
appellees’ plan and to instigate litigation. Finally, appellant stated that appellees fraudulently
2
During the pendency of this action, HDN’s business with Synchronoss was transferred to Fusion BPO
Services, Inc., a Delaware corporation headquartered in New Jersey. Appellant also named Fusion as a defendant.
3
Appellees also contended that “[t]here is no connection, much less the substantial connection required between
the alleged acts of Individual Defendants and Texas” and “[t]he Individual Defendants have no contacts with Texas
bearing a nexus with the alleged wrongdoing that forms the basis of [appellant’s] counterclaim.”
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transferred assets belonging to HDN, which had previously invoked Texas’s jurisdiction.
Appellant filed a sixth amended petition incorporating the jurisdictional allegations specified in
its response. After a hearing at which no live testimony was taken, the trial court granted
appellees’ special appearance. This appeal ensued.
ANALYSIS
A. Standard of Review
We review de novo the trial court’s determination of a special appearance. TEX. R. CIV.
P. 120a; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (2007). Where, as here,
the trial court did not issue findings of fact and conclusions of law with its ruling, we imply all
facts that are supported by the evidence to uphold the trial court’s determination. Moki Mac, 221
S.W.3d at 574.
B. Special Appearance Procedure
In a special appearance, the defendant bears the burden of negating all bases of personal
jurisdiction alleged by the plaintiff. See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653,
658 (Tex. 2010). Once the defendant negates the bases alleged, plaintiff must show, as a matter
of law, that the court has personal jurisdiction over the nonresident defendant. Alliance
Royalties, LLC v. Boothe, 329 S.W.3d 117, 120 (Tex. App.—Dallas 2010, no pet.); Assurances
Générales Banque Nationale v. Dhalla, 282 S.W.3d 688, 695–96 (Tex. App.—Dallas 2009, no
pet.).
Jurisdiction may be negated on either factual or legal grounds. Kelly, 301 S.W.3d at 659.
Among other things, the defendant may challenge whether the plaintiff has alleged sufficient
minimum contacts between him and Texas to establish personal jurisdiction based on the
capacity in which he was sued. See Ennis v. Loiseau, 164 S.W.3d 698, 705 (Tex. App.—Austin
2005, no pet.); Morris v. Powell, 150 S.W.3d 212, 221 (Tex. App.—San Antonio 2004, no pet.)
(nonresidents filed special appearance asserting plaintiff's allegations insufficient to establish
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jurisdiction over them individually because all contacts made in corporate capacity). One
challenge to capacity is the fiduciary shield doctrine, that is “whether or not the corporate agent
can be held personally liable under applicable law . . . .” Stull v. LaPlant, 411S.W.3d 129, 137
(Tex. App.—Dallas 2013, no pet.).
C. Specific Jurisdiction
A nonresident’s forum-state contacts may give rise to either general jurisdiction or
specific jurisdiction. Moki Mac, 221 S.W.3d at 575. In its brief, however, appellant limits its
arguments to the issue of specific jurisdiction. Appellant contends Texas may exercise specific
jurisdiction over appellees because they tortiously interfered with a Texas contract and injured a
Texas entity.
We analyze specific jurisdiction on a claim-by-claim basis, unless we are shown that all
claims arise from the same contacts with Texas. See Moncrief Oil Intern. Inc. v. OAO Gazprom,
11-0195, 2013 WL 4608672, at *4 (Tex. Aug. 30, 2013). Appellant has provided no argument or
analysis concerning whether all its claims arise from the same forum contacts or different ones.
Appellant’s pleadings do not clearly show that all the claims arise out of the same jurisdictional
facts. Appellant limits its appellate arguments to its tortious interference claim and related
conspiracy claim. Because appellant has failed to challenge on appeal the trial court’s special
appearance ruling with respect to its claims for breach of fiduciary duty, fraudulent transfer,
conspiracy relating to these claims, and money had and received/unjust enrichment, these claims
are not before us and we express no opinion about them. 4 See TEX. R. APP. P. 38.1(h); see also
Gazprom, 2013 WL 4608672, at *4. We therefore focus our inquiry on whether the trial court
4
Although appellant’s live pleading contains an allegation involving piercing the corporate veil of HDN, neither
appellant’s response to the special appearance nor its appellate brief contain an argument with respect to this
allegation relating to the exercise of personal jurisdiction over appellees.
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properly declined to exercise specific jurisdiction over appellees regarding appellant’s claims for
tortious interference and conspiracy to commit tortious interference.
Specific jurisdiction exists when the nonresident defendant’s alleged liability arises out of
or is related to his activity conducted within the forum. Moki Mac, 221 S.W.3d at 576. The
contacts with the forum which we are to analyze for jurisdictional purposes are those “where the
contacts proximately result from actions by the defendant himself that create a substantial
connection with the forum State.” Gazprom, 213 WL 4608672, at *5 (quoting Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 473, 475 (1985)). A substantial connection can result from
even a single act. Id. (citing McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957)). But “there
must be a substantial connection between those contacts and the operative facts of the litigation.”
Id. at *8 (quoting Moki Mac, 221 S.W.3d at 585). The operative facts are those on which the
trial will focus to prove the liability of the defendant who is challenging jurisdiction. See id. at
*8–9 (citing Moki Mac, 221 S.W.3d at 585).
In Gazprom, the Texas Supreme Court applied the above principles and declined to
exercise specific jurisdiction over a foreign company on the tortious interference claims against
it. Id. at *9. As relevant here, the court reasoned that when the alleged tortious communications
occurred at a meeting in California, even though individuals from Texas participated in the
meeting and the alleged result of the meeting was the decision to breach a contract performable
in Texas, those operative facts were not substantially connected to Texas for the jurisdictional
analysis. Id.
D. Appellees’ Texas Contacts
Appellant pleaded the following jurisdictional allegations with respect to appellees:
[T]he Court has personal jurisdiction over Dhanuka and Saraogi because they
tortiously interfered with a contract governed by and performable in Texas; acted
through and conspired with their agent, a Texas resident (Counter-Defendant
O’Neil); Dhanuka and Saraogi regularly made phone calls and sent emails to
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Texas in furtherance of their plan to avoid paying Kaye/Bassman; and Dhanuka
and Saraogi instructed O’Neil and others to misrepresent to Kaye/Bassman their
intentions to pay Kaye/Bassman. In addition, Dhanuka travelled to Texas in 2007
(and again in 2011) in furtherance of the plan to injure [appellant] and instigate
litigation in Texas. After this lawsuit was filed, [appellees] coordinated the
fraudulent transfer of assets belonging to [HDN], which had previously invoked
this Court’s jurisdiction. [Appellees’] tortious conduct was directed at and caused
injury to a Texas entity. 5
Appellees supported their special appearance with affidavits in which they denied that
any of their contacts with Texas were in their personal capacities. They did not, however,
specifically deny having made email and telephonic communications with O’Neil in Texas nor
did they deny Dhanuka’s visits to Texas. In response, appellant presented O’Neil’s 2008
deposition testimony admitting to speaking daily with appellees. But O’Neil did not detail the
subject matter of any of those communications or indicate when they occurred. 6 The only
communication with appellees that O’Neil testified to occurring before Xplore-Tech’s
acquisition of HDN occurred in either December 2006 or January 2007 at a meeting in Canada.
O’Neil testified that Dhanuka told him at that time that the contract with appellant, as modified,
required no further commission payments on Synchronoss revenue and he knew HDN would
stop the payments once it was acquired. 7 Appellant also presented appellees’ deposition
testimony evidencing their equivocations about whether they had telephone or email
communications with O’Neil in 2006 or 2007.
5
We note that, “[a] conspiracy claim alone is not enough to establish personal jurisdiction.” MasterGuard L.P.
v. Eco Techs. Intern. LLC, 05-12-01318-CV, 2013 WL 4482976 (Tex. App.—Dallas Aug. 22, 2013, no. pet. h.)
(citing Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995)). Here, appellant’s conspiracy claim
depends upon its tortious interference claim which is the subject of our analysis.
6
O’Neil did not testify that appellees made phone calls or sent emails to him in Texas before Xplore-Tech
acquired HDN.
7
Appellant wisely refrains from arguing any jurisdictional significance results from the meeting in Canada. A
meeting outside of Texas arranging an alleged tortious interference with a contract performable in Texas does not
constitute contacts with Texas on which there can be a substantial connection to operative facts that would be used
at a trial to prove appellees are liable for tortious interference. See Gazprom, 2013 WL 4608672, at *9.
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On appeal, the parties dispute whether appellees negated appellant’s allegations that they
emailed and telephoned O’Neil in Texas regarding HDN’s stopping payment of further
commissions to appellant. 8 Nevertheless, appellant specifically pleaded that appellees became
the controlling officers and/or directors of HDN after the acquisition. It also pleaded appellees’
new, indirect ownership of HDN precipitated the alleged breach of the commission contract in an
effort to make HDN more profitable. Moreover, both sides agree HDN was acquired by Xplore-
Tech on April 12, 2007 and shortly thereafter appellees became directors of HDN.
Appellees argue that the tortious interference claims against them cannot arise from or
relate to any communications they had with O’Neil after they became HDN directors. Appellees
base this argument on Texas law that an agent or officer of a business entity cannot be liable for
tortiously interfering with the business entity’s contract unless a plaintiff proves that the agent or
officer acted in a manner so contrary to the entity’s best interests that his or her actions could
only have been motivated by personal interest when interfering with the business entity’s
contract. See ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 432 (Tex. 1997); Powell
Indus., Inc. v. Allen, 985 S.W.2d 455, 456–57 (Tex. 1998) (requiring proof that the interference
was motivated solely by the agent's personal interest and the interference harmed the business
entity). Absent pleading and proof that an officer’s conduct was solely for the officer’s benefit
and contrary to the interest of the business entity, an officer’s “acts on the corporation’s behalf
are deemed corporate acts.” ACS, 943 S.W.2d at 432. Because appellant did not make such
allegations or present such proof, appellees contend any alleged jurisdictional contacts in
furtherance of tortious interference after the April 2007 acquisition are subject to the fiduciary
8
In its response to the special appearance, appellant also asserted the fraudulent transfer of HDN’s Synchronoss
business to Fusion also gave rise to personal jurisdiction over appellees. Appellant does not make this argument on
appeal. In any event, as alleged by appellants, the transfer of Synchronoss business (a Delaware corporation with its
principal place of business in New Jersey) from one non-Texas entity to another non-Texas entity did not involve
any actions in, or contacts with, Texas. Accordingly, it is an insufficient ground on which to base jurisdiction. See
Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 582 (Tex. App.—Austin 2006, no pet.).
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shield doctrine and do not constitute contacts with Texas in their personal capacities. See Stull,
411 S.W.3d at 137–38.
Appellant’s theory of liability actually avoids the fiduciary shield argument asserted by
appellees, as appellant’s counsel confirmed in oral argument, because appellant’s theory is that
appellees’ tortious interference occurred before HDN was acquired on April 12, 2007, that is
before appellees became officers of HDN. However, appellant did not plead the specific time
period during which it alleges appellees “regularly made phone calls and sent emails to Texas in
furtherance of their plan to avoid paying Kaye/Bassman” and that “Dhanuka travelled to Texas
in 2007 . . . in furtherance of the plan to injure [appellant] and instigate litigation in
Texas.” Without pleading the specific time such conduct occurred, the alleged contacts with
Texas could have occurred after the April 12, 2007 acquisition when appellees became officers
of HDN. Once appellees became officers, their contacts with Texas would not constitute
contacts involving a substantial connection to the operative facts of the litigation because such
contacts would not be facts used at trial to prove appellees’ individual liability for tortious
interference. See Gazprom at *8–9 (citing Moki Mac, 221 S.W.3d at 585). Accordingly,
appellees’ evidence that none of their contacts with Texas were in their individual capacities
along with the argument that they could not be liable in their individual capacities for their
conduct on behalf of out of state entities, negated appellant’s jurisdictional allegations. This
shifted the burden to appellant to bring forward evidence that appellees’ alleged phone calls,
emails, and visits to Texas occurred before the corporate acquisition in April 2007. Alliance
Royalties, 329 S.W.3d at 120; Dhalla, 282 S.W.3d at 695–96. Because on this record appellant
did not prove appellees were involved in any phone calls, emails, or visits to Texas before the
corporate acquisition in April 2007 nor that the content of such (non-existent) communications
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pertained to HDN breaching its agreement with appellant, we resolve appellant’s sole issue
against it.
CONCLUSION
Based on the record before us, we conclude the trial court did not err in determining
appellees lacked sufficient contacts with Texas in their individual capacities to support the
exercise of personal jurisdiction over them. We affirm the trial court’s order.
/David Evans/
DAVID EVANS
JUSTICE
130398F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KAYE/BASSMAN INTERNATIONAL On Appeal from the 219th Judicial District
CORP., Appellant Court, Collin County, Texas
Trial Court Cause No. 219-03698-07
No. 05-13-00398-CV V. Opinion delivered by Justice Evans,
Justices O'Neill and Lang-Miers
PANKAJ DHANUKA AND KISHORE participating.
SARAOGI, Appellees
In accordance with this Court’s opinion of this date, the trial court’s order is
AFFIRMED.
It is ORDERED that appellees Pankaj Dhanuka and Kishore Saraogi recover their costs
of this appeal from appellant Kaye/Bassman International Corp.
Judgment entered this 3rd day of December, 2013.
/David Evans/
DAVID EVANS
JUSTICE
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