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explaining that "Texas courts applying the fiduciary shield doctrine have expressly limited its application to attempts to exercise general jurisdiction over a nonresident defendant"
Summary of this case from Nw. Cattle Feeders, LLC v. O'ConnellOpinion
Nos. 01-04-00567-CV, 01-04-00832-CV
Opinion issued May 4, 2006.
On Appeal from the 234th District Court, Harris County, Texas, Trial Court Cause No. 2003-21829.
MEMORANDUM OPINION
Appellant, Todd Esse ("Todd"), brings these accelerated interlocutory appeals challenging the trial court's orders denying his special appearance in each case. In his sole issue in both cases, Todd contends that the trial court erred in denying his special appearances because he lacks the minimum contacts with the State of Texas necessary to establish personal jurisdiction.
We refer to the trial court case styled BP America Production Co. v. Westgate Energy Partners, Inc., No. 2003-21829, pending in the 234th District Court, as the "BP case," and we refer to the trial court case styled Empire Energy III, Ltd. v. Westgate Energy Partners, Inc., No. 2003-21829, pending in the 234th District Court, as the "Empire case." Although both the BP case and the Empire case were eventually consolidated in the 234th District Court, the cases were originally filed in separate Harris County courts. Additionally, Todd filed distinct special appearances in each case; BP America Production Company ("BP") and Empire Energy III, Ltd. ("Empire") filed distinct responses to Todd's special appearances; the trial court separately heard the special appearances filed in each case; and the trial court denied Todd's special appearances in separate orders on different dates.
Westgate, a Texas corporation, and Brent, a Texas resident, filed general denials and did not challenge the jurisdiction of the court in either the BP case or the Empire case.
We affirm the orders of the trial court denying Todd's special appearances.
Factual and Procedural Background
Appellee BP America Production Company ("BP") is the owner of one-half of the working interest in an oil and gas well located in Yoakum County, Texas, and is also the operator of the well. Appellee Empire Energy, Ltd. ("Empire") originally owned the other one-half of the well's working interest, but assigned one-half of its working interest to Westgate Energy Partners, Inc. ("Westgate").
The BP Case
BP sued Westgate for declaratory judgment and breach of contract, contending that Westgate breached a joint operating agreement that required Westgate to pay 25% of the well's drilling and completion costs. BP alleged that Todd, Westgate's majority shareholder, and Brent Esse ("Brent"), Todd's father and Westgate's president, vice-president, secretary, treasurer, and sole director, organized and operated Westgate "in such a manner that the corporate entity should be disregarded." BP also asserted fraud, fraudulent transfer, and conspiracy claims against Todd and Brent in their individual capacities.
Todd, a Connecticut resident, filed a special appearance in the BP case. In his special appearance, Todd asserted that the trial court lacked jurisdiction over him because he is a nonresident and does not have sufficient minimum contacts with Texas. As evidence in support of his special appearance, Todd testified, by affidavit, that he (1) is not a resident of Texas and has not been a Texas resident for over nine and one-half years; (2) is a Connecticut resident, (3) does not have or maintain a place of business in Texas; (4) is not employed in Texas; (5) does not have any employees or agents in Texas; (6) does not have and has never been required to have a registered agent for service of process in Texas; (7) does not operate a business in Texas, although he is affiliated as a shareholder of Westgate and has loaned money to Westgate; (8) has not committed any tort, in whole or in part, in Texas; (9) is not and has never been a director, officer, or employee of Westgate; (10) was not a party to any contracts into which Westgate entered with respect to drilling operations regarding the well; and (11) has never met with or spoken with representatives of Empire or BP or any of their officers, agents, employees, partners, or representatives.
Brent conceded during his deposition that he had previously signed an interrogatory answer stating that Todd was a director of Westgate and that he had not amended his interrogatory answer at the time of his deposition, but then testified that his answer was wrong.
BP filed a response to Todd's special appearance, asserting that the trial court could exercise both specific and general jurisdiction over Todd. As a threshold matter, BP contended that Todd's special appearance was improper on its face because it was not made by a properly sworn motion. In regard to the merits of Todd's special appearance, BP asserted that Todd had committed the torts of negligent misrepresentation, fraud, and conspiracy in the formation and use of Westgate, that Todd made negligent, fraudulent, and conspiratorial communications to Brent, and that there was a strong nexus between "the alleged torts that occurred in Texas and the contact with Texas."
In support of its specific jurisdiction argument, BP cited testimony from Todd's and Brent's depositions that establishes that (1) Todd is the majority shareholder of Westgate, a Texas corporation; (2) Todd spoke, approximately once a month, by telephone to his father, Brent, who lives in Houston, is a Texas resident, and is the sole director and officer of Westgate; (3) Brent and Todd discussed the affairs of Westgate during their monthly telephone conversations; (4) Todd loaned Westgate $69,000 in a series of transactions over the course of several years and these loans were made, at least in part, from Todd's personal bank account; (5) the loan document used by Todd for his loans to Westgate stated that it "shall be governed by the laws" of Texas; (6) Brent "consulted" Todd regarding Westgate's decision to sell one of Westgate's primary assets, the Mallet Land Cattle prospect (the "Mallet prospect"); (7) Todd warned Brent about the possibility that selling the Mallet prospect might constitute a fraudulent conveyance since Westgate "was getting rid of assets when it [was] being sued"; (8) Todd was a majority shareholder of 5E Oil and Gas ("5E"), formerly known as Esse Oil Gas, another Esse family-owned Texas corporation of which Brent was the sole director and officer and Todd was the majority shareholder; (9) Westgate was paying Todd's legal bills in the defense of the BP case and the Empire case; (10) Todd planned to write off the debt owed to him by Westgate; and (11) Todd "guessed" he took a tax deduction on his 2002 tax return for the well.
In support of its general jurisdiction arguments, BP produced the following evidence of Todd's alleged continuous and systematic contacts with Texas: (1) in 2001, Todd made a $100,000 loan to Image Energy, a Texas corporation, which was guaranteed by Texas residents, and Todd paid attorneys from Texas to draft the loan document; (2) Todd wrote a check from his personal account to Daniel Boone, who is affiliated with Image Energy; (4) Todd had previously loaned money to his sister, who was living in Texas; (5) in either 2000 or 2001, Todd loaned a Texas resident money to purchase a home in Houston, and Todd secured a lien on the home; (6) Todd travels to Texas on business for his current employer "maybe twice a month, sometimes twice a year depending on business"; (7) Todd traveled to Texas for pleasure around four times in the last two years; (8) Todd owns $250,000 worth of stock in a Dallas-based technology company; (9) Todd has a brokerage account with Southwest Securities, which is located in Georgetown, Texas, buys and sells publicly traded securities through the account, and has paid the broker of this account; (10) over the past two and one-half years, Todd has made wire transfers and loaned money to 5E; (11) Todd has set up trust brokerage accounts in Texas for his three minor children; (12) Todd had an "informal agreement" with Boone, a Texas resident, to "evaluate some possible investments" in Texas, to counsel Todd about spending money on those investments in Texas, and to make certain unidentified personal contacts in Texas on his behalf; and (13) within the last ten years, Todd guaranteed some loans for Michael Deane Homes, a home builder located in Austin, Texas. Moreover, BP asserted that exercising jurisdiction over Todd would not violate traditional notions of fair play and substantial justice.
At the special appearance hearing, the trial court sustained Todd's special appearance as to general jurisdiction, but reserved its ruling regarding specific jurisdiction. The trial court subsequently denied Todd's special appearance in a written order. Todd did not request, and the trial court did not make, findings of fact and conclusions of law.
The Empire Case
Empire's claims against Todd, similar to those of BP, arose out of Empire's assignment of one-half of the well's working interest to Westgate and Westgate's failure to pay its proportionate share of the well's drilling costs pursuant to the joint operating agreement and the assignment. Empire sued Westgate for breach of contract, contending that Westgate breached its obligations under the operating agreement and the assignment and bill of sale. Empire also sued Todd in his individual capacity and asserted claims of fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, usurpation of corporate opportunities and self dealing, and fraudulent transfer. Finally, Empire, like BP, asserted that Westgate's corporate identity should be disregarded.
In support of its fraud claim, Empire alleged that Todd's agents, with Todd's knowledge or approval, made material misrepresentations to Empire for purposes of inducing Empire to enter contracts. In support of its breach of fiduciary duty claims against Todd, BP asserted that, as a majority or controlling shareholder and/or director of Westgate, Todd owed a fiduciary duty to Westgate and breached that duty, to the detriment of Empire. Empire further asserted that Todd directly owed it a fiduciary duty and that Brent's breach of his fiduciary duty "would not have been possible without the approval, encouragement, and financing provided by Todd." In support of its fraudulent transfer claim, Empire alleged, among other things, that Westgate, with the knowledge of Brent and Todd, sold assets to 5E shortly after receiving demands from Empire and BP for payment of the well's drilling costs, that Westgate's assets, including the Mallet prospect, were sold with the intent to defraud Westgate's creditors, including Empire, and that Westgate sold its assets without receiving reasonably equivalent value for the assets.
U.S. Const. amend. XIV, § 1.
Todd filed a special appearance in the Empire case that was nearly identical to his special appearance filed in the BP case, and attached the same affidavit testimony that he attached to his special appearance filed in the BP case. Empire filed a response to Todd's special appearance and, like BP, asserted that Todd was subject to the general and specific jurisdiction of Texas courts. Empire cited essentially the same contacts cited by BP in its response to Todd's special appearance. Empire emphasized the deposition testimony of Todd and Brent that established that Todd had been a significant source of working capital for Westgate, that Todd loaned money to Westgate from his personal brokerage account in Georgetown, Texas, and that Todd was involved in the decision to sell Westgate's assets following Westgate's receipt of demands from BP and Empire.
Empire specifically alleged that Boone, one of Westgate's agents, negligently misrepresented to Empire, "on behalf" of Brent and Todd, that Westgate had the resources to pay its share of drilling costs for the well and that, after Westgate had received demands from both BP and Empire, Brent and Todd concocted a plan to transfer Westgate's assets to 5E. In support of these fraudulent transfer allegations, Empire cited Brent's testimony that the Mallet prospect was transferred from Westgate to 5E because of the threat of or the filing of the BP lawsuit. Brent further testified that, during a telephone call placed by him from Texas to Todd, Todd consented to the sale of Westgate's assets to 5E. Brent also agreed that a significant portion of the proceeds from the sale of Westgate's assets to 5E was used to pay his and Todd's legal bills in defense of the BP and Empire cases. Empire also cited Todd's testimony, which established that although Todd and Brent discussed the possibility that selling Westgate's assets might constitute a fraudulent conveyance, Todd ultimately agreed to sell the Mallet prospect "because BP and Empire were owed money." Todd also agreed that Westgate was paying his legal bills, and Todd could not dispute evidence indicating that funds obtained from the sale of Westgate's assets to 5E were used to pay his legal bills in defense of the instant suits.
The trial court subsequently denied Todd's special appearance in a written order. Todd did not request, and the trial court did not make, findings of fact and conclusions of law. However, in its order, the trial court specifically stated that Todd was not subject to the general jurisdiction of Texas courts, but that he was subject to the specific jurisdiction of Texas courts.
Standard of Review
The burden of proof is on a nonresident to negate all possible grounds for personal jurisdiction. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002); Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 248 (Tex.App.-Houston [1st] 2004, pet. denied). The existence of personal jurisdiction is a question of law, which we determine de novo. BMC Software Belgium, N.V., 83 S.W.3d at 794. "However, the trial court frequently must resolve questions of fact before deciding the jurisdiction question." Id. Where, as here, the trial court does not issue findings of fact and conclusions of law with its special appearance ruling, "all facts necessary to support the judgment and supported by the evidence are implied." Id. at 795. When the appellate record contains the applicable trial record, these implied factual findings are not conclusive, and an appellant may challenge them for evidentiary sufficiency. Id. However, we apply a de novo review to the extent that the underlying facts are undisputed. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st] 2000, pet. dism'd w.o.j.).
Jurisdiction
A court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Fourteenth Amendment's due process clause and the Texas long-arm statute are satisfied. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413, 104 S. Ct. 1868, 1871-72 (1984); CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding). The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant who does business in Texas. Tex. Civ. Prac. Rem. Code Ann. § 17.042. A nonresident "does business" in Texas if he, among other things, "commits a tort in whole or in part" in Texas. Id. The Texas long-arm statute reaches as far as the federal and state constitutional guarantees of due process allow. CSR Ltd., 925 S.W.2d at 594.
Tex. Civ. Prac. Rem. Code Ann. § 17.042 (Vernon 1997).
The Texas Supreme Court has recently noted that "[a]llegations that a tort was committed in Texas satisfy the Texas Long-Arm Statute, but not necessarily the U.S. Constitution." Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 788 (Tex. 2005).
We note that arguments presented by Todd in his appellate briefing in the BP case and the Empire case are substantively similar.
The United States Constitution permits a state to exert personal jurisdiction over a nonresident defendant only if the defendant has "some minimum, purposeful contacts with the state, and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice." Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998). A nonresident defendant must have purposefully established such minimum contacts with the forum that he could reasonably anticipate being sued there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 2183 (1985). A nonresident who has purposefully availed himself of the privileges and benefits of conducting business in the foreign jurisdiction has sufficient contacts with the forum to confer personal jurisdiction. CSR Ltd., 925 S.W.2d at 594. "The exercise of personal jurisdiction is proper when the contacts proximately result from actions of the nonresident defendant which create a substantial connection with the forum state." Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). "The substantial connection between the nonresident defendant and the forum state necessary for a finding of minimum contacts must come about by action or conduct of the nonresident purposefully directed toward the forum state." Id. It is the quality and nature of the contacts, rather than their number, that is important. Id. at 230 n. 11. A defendant, however, should not be subject to the jurisdiction of a foreign court based upon random, fortuitous, or attenuated contacts. Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005); CSR Ltd., 925 S.W.2d at 595. Likewise, unilateral actions by third parties claiming some relationship with the nonresident defendant do not subject the nonresident defendant to the jurisdiction of a foreign court. Michiana Easy Livin' Country, Inc., 168 S.W.3d at 785; Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
A defendant's contacts with a forum can give rise to either general or specific jurisdiction. Guardian Royal, 815 S.W.2d at 227. General jurisdiction is present when a defendant's contacts are continuous and systematic, allowing the forum to exercise personal jurisdiction over the defendant, even if the cause of action did not arise from or relate to activities conducted within the forum state. Id. at 228; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). The minimum contacts analysis is broader and more demanding when general jurisdiction is alleged, requiring a showing of substantial activities in the forum state. Guardian Royal, 815 S.W.2d at 228. Specific jurisdiction, however, is established if the defendant's alleged liability arises from or is related to an activity conducted within the forum. Id. at 228. When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship among the defendant, the forum, and the litigation. Id. at 227.
Although not determinative, foreseeability is an important consideration in deciding whether the nonresident defendant has purposefully established minimum contacts with the forum state. Burger King, 471 U.S. at 474, 105 S. Ct. at 2183; Guardian Royal, 815 S.W.2d at 227. "[T]he concept of foreseeability is implicit in the requirement that there be a `substantial connection' between the nonresident defendant and Texas arising from action[s] or conduct of the nonresident defendant purposefully directed toward Texas." Guardian Royal, 815 S.W.2d at 227.
Finally, we note that "[o]n reaching a decision to exercise or [to] decline jurisdiction based on the defendant's alleged commission of a tort, the trial court should rely only on the necessary jurisdictional facts and should not reach the merits of the case." Wright, 137 S.W.3d at 251 n. 10. This is because "ultimate liability in tort is not a jurisdictional fact, and the merits of the cause are not at issue." Glattly v. CMS Viron Corp., 177 S.W.3d 438, 446 (Tex.App.-Houston [1st] 2005, no pet.) (citing Wright, 137 S.W.3d at 251 n. 10). "Rather, the purpose of a special appearance is to determine whether the actions alleged by a plaintiff suggest that a defendant should expect to be subject to jurisdiction in Texas." Id.Verification of Special Appearance
As a threshold matter, we address BP's argument that the trial court properly denied Todd's special appearance because Todd's special appearance was not accompanied by a "properly sworn motion." Todd attached an affidavit to his original special appearance. While the affidavit stated that the "facts in this Affidavit" were true and correct, it did not state that the facts in the special appearance motion were true and correct. However, on January 29, 2004, four days before the special appearance hearing, Todd amended his special appearance to include a verification that stated that the facts alleged in his special appearance motion were true and correct. Todd attached a blank order to his amended special appearance motion, but there is no evidence in the record that the trial court signed it. At the special appearance hearing on February 2, 2004, Todd asked for a ruling on his amended motion, but the trial court did not rule on the amended motion.
A special appearance must be sworn. Tex. R. Civ. P. 120a(1); see also Casino Magic Corp. v. King, 43 S.W.3d 14, 18 (Tex.App.-Dallas 2001, pet. denied). However, an unverified special appearance may be amended to cure the defect, even after the trial court has ruled on the special appearance, as long as the amendment is filed before the defendant enters a general appearance. See Tex. R. Civ. P. 120a(1); Dawson-Austin, 968 S.W.2d at 322. Here, Todd amended his special appearance to add a verification before the special appearance hearing and before he made a general appearance. Todd was not required to obtain a ruling from the trial court on his amended special appearance. Thus, Todd's special appearance was properly verified.
Specific Jurisdiction
In his sole issue in both cases, Todd argues that Texas has no specific jurisdiction over him because he never purposefully directed his activities at Texas residents. Todd asserts that "his actions on behalf of corporate entities are shielded from serving as a basis for personal jurisdiction," that BP and Empire have not demonstrated facts concerning his participation in an alleged conspiracy, and that the record contains no factual basis for asserting specific jurisdiction over him.
The Honorable Frank Price, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.
Conversely, BP argues that Todd has sufficient minimum contacts with Texas because he has committed torts in Texas. BP notes that the underlying lawsuit involves claims against Todd for commission of various torts in Texas, including negligent misrepresentations, fraud, fraudulent transfer, and conspiracy. BP further asserts that it "adequately alleged jurisdictional facts to support its allegation of alter ego." Similarly, Empire notes that Todd is Westgate's sole shareholder, that Todd served as a significant source of capital for Westgate, that Todd approved of and participated in the transfer of Westgate's assets to 5E after receiving notice of BP's and Empire's demands, and that Todd and Brent discussed the price Westgate would receive for such assets. BP and Empire both assert that Brent and Todd purposefully set this price low with the intent to defraud Westgate's creditors, including BP and Empire.
Initially, we note that Todd entered his special appearances as to the entire proceedings in both the BP and the Empire cases, rather than as to any specific claims asserted by BP and Empire that may have been severable. See Tex. R. Civ. P. 120a(1) ("A special appearance may be made as to an entire proceeding or as to any severable claim involved therein."). Additionally, Todd did not assert separate jurisdictional arguments in his trial court or appellate court briefing in regard to the separate claims asserted by BP or Empire, and Todd did not argue that any claim asserted against him was severable. Accordingly, if personal jurisdiction exists over Todd with respect to any of the common claims asserted by BP and Empire, then we will hold that the trial court properly denied Todd's special appearances filed in both cases as to all claims. See Glattly, 177 S.W.3d at 450; see also Dechon v. Dechon, 909 S.W.2d 950, 955 n. 5) (Tex.App.-El Paso 1995, no writ).
BP and Empire commonly alleged against Todd in his individual capacity, among other claims, fraud and fraudulent transfer arising out the sale of Westgate's assets to 5E after Westgate received demands from BP and Empire for payment of the well's drilling costs. Under the Texas Uniform Fraudulent Transfer Act ("TUFTA"), "[a] transfer made or an obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or within a reasonable time after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation with actual intent to hinder, delay, or defraud any creditor of the debtor." Tex. Bus. Com. Code Ann. § 24.005(a)(1) (Vernon 2002); SITQ E.U., Inc. v. Reata Rests, Inc., 111 S.W.3d 638, 647 n. 8 (Tex.App.-Fort Worth 2003, pet. denied).
Here, BP and Empire produced evidence that, at a minimum, Brent "consulted" with Todd about the decision of Westgate, a Texas corporation, to sell its assets, including the Mallet prospect, to 5E, another family-owned Texas corporation of which Brent was the sole officer and director and Todd was the majority shareholder. The Mallet prospect, which was located in Texas, apparently was one of the primary assets of Westgate. The evidence further established that these assets may have been sold as a direct result of BP and Empire's demands that Westgate pay its proportionate share of drilling costs for the well located in Texas. BP and Empire also produced evidence that Todd and Brent discussed Westgate's affairs during their monthly telephone conversations and that, during a telephone call placed from Texas by Brent to Todd, Todd specifically advised his father that selling Westgate's assets might constitute a fraudulent conveyance because Westgate appeared to be "getting rid" of its assets when it was being sued. Yet, despite Todd's cautioning of Brent concerning the legal implications of selling Westgate's assets, Todd testified that he ultimately agreed to the sale. Brent also testified that, along with the other family shareholders of Westgate, Todd specifically consented to the sale of Westgate's assets. There is also testimony that Todd and Brent discussed the price for which Westgate should sell its assets to 5E. The price, discussed during these conversations, is central to BP's and Empire's claims that Westgate did not receive reasonably equivalent value for its assets and that Todd and Brent intentionally sold these assets for nominal compensation in order to avoid BP's and Empire's demands for drilling costs. Accordingly, we hold that this evidence is sufficient to establish that Todd has sufficient contacts with the state of Texas for the exercise of personal jurisdiction over him to comport with due process.
In regard to Todd's assertion that he is protected from the specific jurisdiction of Texas courts under the "fiduciary shield doctrine," we note that the doctrine protects a corporate officer, agent, or employee from a trial court's exercise of general personal jurisdiction when all of the individual's contacts with a forum state are on behalf of the corporation. Wright, 137 S.W.3d at 250; SITQ E.U., Inc., 111 S.W.3d at 650-51; Brown v. Gen. Brick Sales Co., 39 S.W.3d 291, 297-98 (Tex.App.-Fort Worth 2001, no pet.). Texas courts applying the fiduciary shield doctrine have expressly limited its application to attempts to exercise general jurisdiction over a nonresident defendant because it is well-settled that a corporate agent can be held individually liable for fraudulent conduct. Wright, 137 S.W.3d at 250-51; Stern v. KEI Consultants, Ltd., 123 S.W.3d 482, 488 (Tex.App.-San Antonio 2003, no pet.); SITQ E.U., Inc., 111 S.W.3d at 651; Brown, 39 S.W.3d at 300. 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. Glattly, 177 S.W.3d at 448; Wright, 137 S.W.3d at 250-51; Jackson v. Kincaid, 122 S.W.3d 440, 448 (Tex.App.-Corpus Christi 2003, pet. filed); SITQ E.U., Inc., 111 S.W.3d at 651. "It is not necessary that the `corporate veil' be pierced in order to impose liability, as long as it is shown that the corporate officer knowingly participated in the wrongdoing." Glattly, 177 S.W.3d at 448 (citing Barclay v. Johnson, 686 S.W.2d 334, 337 (Tex.App.-Houston [1st] 1985, no writ)). Accordingly, we hold that the fiduciary shield doctrine is not available to Todd as a defense to the trial court's exercise of specific personal jurisdiction based on his alleged individual tortious and fraudulent conduct.
Traditional Notions of Fair Play and Substantial Justice
The exercise of personal jurisdiction over a nonresident defendant must also comport with traditional notions of "fair play and substantial justice." Guardian Royal, 815 S.W.2d at 228. The burden is on the defendant to present a compelling case that the presence of some other considerations renders the exercise of jurisdiction unreasonable. Id. at 231 (quoting Burger King, 471 U.S. at 477, 105 S. Ct. at 2185). In making a determination, a court generally must look to the following factors: "(1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies." Id. at 228, 231. "Only in rare cases . . . will the exercise of jurisdiction not comport with fair play and substantial justice when [a] nonresident defendant has purposefully established minimum contacts with the forum state." Id. at 231. Furthermore, distance from the forum is generally not sufficient to defeat jurisdiction because the availability of "modern transportation and communication have made it less burdensome for a party sued to defend himself in a [s]tate where he engages in economic activity." McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201 (1957).
Here, Todd contends that litigating in Texas would impose a "severe burden" and would impose logistical difficulties. However, we note that likely witnesses, including representatives from BP and Empire, as well as Brent, Todd's father and co-defendant, and Boone, Westgate's alleged agent and Todd's co-defendant, reside in Texas, and that relevant documents held by Westgate, BP, and Empire concerning the operation of the well and the parties' agreements to pay drilling costs, may be located in Texas. Furthermore, although it appears that defending this suit in Texas might necessitate some travel and expense for Todd, these factors alone are not determinative, see Guardian Royal, 815 S.W.2d at 231, and "there is no legal requirement that this hardship must be borne instead by the plaintiff whenever the defendant is not found in the state of the plaintiff's residence." Wright, 137 S.W.3d at 253-54. Additionally, we note that it appears from the record that Todd makes frequent trips to Texas and that he maintains a personal agent or representative in Texas to evaluate investments and handle unspecified personal affairs. Accordingly, we hold that the exercise of personal jurisdiction over Todd comports with traditional notions of fair play and substantial justice.
Because the record indicates that Todd's contacts with Texas are sufficient to create specific jurisdiction over him and because the exercise of personal jurisdiction over Todd comports with traditional notions of fair play and substantial justice, we further hold that the trial court did not err in denying Todd's special appearances in both the BP case and the Empire case. Furthermore, having held that Texas courts have specific jurisdiction over Todd with respect to the above claims, and because Todd filed his special appearances as to the entire proceedings, we need not consider whether specific jurisdiction existed as to other claims asserted by BP and Empire, including allegations that jurisdiction is appropriate based on allegations of alter ego. See Glattly, 177 S.W.3d at 450. Finally, we also need not reach alternative arguments concerning the lack of general jurisdiction. Id.
We overrule Todd's sole issue.
Conclusion
We affirm the orders of the trial court denying Todd's special appearances in both the BP case and the Empire case.