Opinion
No. 2010 CW 0614R.
June 9, 2011. NOT DESIGNATED FOR PUBLICATION
ON SUPERVISORY WRITS FROM TWENTY-THIRD JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ASCENSION, LOUISIANA TRIAL COURT NUMBER 87,073 HONORABLE RALPH TUREAU, JUDGE.
Gerald R. Arceneaux, New Orleans, LA and James M. Dill, Thomas M. Dupont, Lafayette, LA, Attorneys for Plaintiff-Respondent, Enviroshield Technologies, L.L.C.
Gerald C. deLaunay, Lafayette, LA, Attorney for Defendants-Relators, Lonestar Corrosion Services, Inc., Energy Coatings, Inc., Tonya Cronin and Glen Cronin.
BEFORE: McDONALD, McCLENDON, AND WELCH, JJ.
In this application for supervisory writs, defendants, Energy Coatings, Inc. (Energy), Glen Cronin (Glen) and Tonya Cronin (Tonya) seek review of a trial court's judgment denying their declinatory exception raising the objection of lack of personal jurisdiction. For the reasons that follow, we grant the writ to reverse the denial of the exception of personal jurisdiction filed by Tonya and deny the writ in all other respects.
BACKGROUND
On August 31, 2007, Enviroshield Technologies, L.L.C. (Enviroshield), a Louisiana limited liability company, filed this lawsuit against Lonestar Corrosion Services, Inc. (Lonestar), a Texas corporation with a facility in New Iberia, Louisiana, Energy, a Texas corporation, Glen and his wife Tonya, Texas residents and the principal shareholders of Lonestar and Energy, and Richard Sauce, a Louisiana citizen, in the 23rd Judicial District Court for the Parish of Ascension, seeking damages for alleged unfair trade and business practices. On February 4, 2010, Enviroshield amended its petition to add four additional defendants, Murry Ginsberg, a Florida resident, and three Florida corporations. In the original and amended petition, Enviroshield alleged that Lonestar committed unfair trade practices in its business dealings with Enviroshield and that all of the named defendants conspired to commit unfair trade practices with Lonestar.
In the original and amending petitions, Enviroshield made the following allegations: Enviroshield's primary business consists of private labeling, marketing, selling, and applying an epoxy coating known as "Enviroshield." Enviroshield's original members were two companies, owned by Mario Barletta, Joseph Barletta, and Mr. Sauce. Lonestar, a business competitor, also specializes in the sale and application of various coating systems and has a facility in New Iberia, Louisiana. At some point, Mr. Sauce, a member of Enviroshield, was hired by Lonestar to manage its New Iberia facility. At the urging of Mr. Sauce, Enviroshield entered into an "Exclusive Alliance Agreement" in which Enviroshield agreed to sell its product, labeled "Enviroshield," exclusively to Lonestar and cease its application endeavors, and Lonestar agreed to purchase the product and equipment necessary to apply the product directly from Enviroshield on an as-needed basis. The product subject to the agreement was manufactured for Enviroshield by a Florida based company owned by Mr. Ginsberg. Thereafter, Enviroshield and the manufacturer entered into a "Distributor Agreement" concerning the product. At some point, Lonestar refused to pay its debts to Enviroshield, forcing Enviroshield to place Lonestar in material breach of the Exclusive Alliance Agreement on September 13, 2006.
Enviroshield further alleged that on September 26, 2006, Glen and Tonya, Lonestar's principals, formed Energy, a company that specializes in the marketing and selling of coatings, for the purpose of marketing and selling to Lonestar a coating called EC-92, which it claims is the same product Enviroshield had sold to Lonestar. Enviroshield claimed that Lonestar took various measures to prohibit Enviroshield from interfering with Lonestar's domestic and foreign markets by relying on the Exclusive Alliance Agreement, although Enviroshield was forced to terminate the contract because Lonestar failed to pay the balance on its account on at least two occasions.
In the petition, Enviroshield alleged that Lonestar was guilty of unfair trade practices by: (1) intentionally failing to pay its debts to Enviroshield, forcing Enviroshield to place Lonestar in breach and eventually terminate the contract on November 20, 2006; (2) prohibiting Enviroshield from marketing its product in Houston; (3) ceasing to order Enviroshield's product; and (4) attempting to enforce the agreement in the absence of performance and payment. Enviroshield claimed that Glen and Tonya's actions as officers of Lonestar in committing these acts of unfair trade practices, and in forming Energy, a corporation specializing in the marketing and selling of coatings, for the purpose of selling the same product marketed by Enviroshield to Lonestar, constituted a conspiracy to commit unfair trade practices and intentional interference with contract.
In its 2010 amended petition, Enviroshield claimed to have a distributor agreement with Mr. Ginsberg, pursuant to which it paid Mr. Ginsberg $20,000.00 for the right to private label the product as Enviroshield. It alleged that Mr. Ginsburg's manufacturing and selling of EC-92 to Lonestar and Energy was a conspiracy to commit unfair trade practices and intentional interference with the contract.
Lonestar, Glen, Tonya, and Energy answered the original petition, asserting therein that the Louisiana court lacked personal jurisdiction over them. At some point, Lonestar abandoned its challenge to personal jurisdiction, and a hearing was held on the remaining jurisdictional objections. At the hearing, Enviroshield presented the testimony of Rosalie Hebert and James Schnieder, and offered the depositions of Energy, Glen, Tonya, and Mr. Ginsberg.
Mr. Schneider, a Lafayette resident and service manager employed by M-I SWACO, testified that he purchased Enviroshield from Lonestar when his company needed a specialty coating. In May of 2007, a different employee of Lonestar, Terry Dore, contacted Mr. Schneider about purchasing EC-92. He stated that Glen also contacted him regarding the product, and that both men told him EC-92 was the same product as Enviroshield. Mr. Schneider identified a fax sent from Lonestar on May 1, 2007, containing the MSDS sheet for EC-92, as well as a letter from Mr. Ginsberg, the coating manufacturer, to Glen. In the letter, Mr. Ginsburg stated that EC-92 is the same material used in the years 2005 and 2006 and that some improvements had been made with the addition of magnetic resonance and a chemical to extend the longevity of the material. Mr. Schneider testified that Mr. Ginsburg also told him that the coatings were the same with the exception of some additives. He added, however, that none of the men he spoke to held themselves out as representing Energy, and he understood them to be employees of Lonestar. Mr. Schneider's company did not purchase EC-92 from Lonestar. Mr. Schneider acknowledged that he never spoke to Tonya.
Glen gave a deposition personally and as the representative of Energy. He stated that he owns Lonestar, Energy, and GTM Real Estate, which owns property in New Iberia, Louisiana. Glen testified that he does not personally own any property in Louisiana, and he has never sued or been sued here. He admitted visiting Louisiana about three times per year for business with Lonestar, once for GTM business, and he has taken three or four pleasure trips to New Orleans in the past 10 years. Glen acknowledged coming to Louisiana in early 2006 to meet with Enviroshield's representatives.
According to Glen, Energy, owned equally by himself and Tonya, was formed in March of 2003 and incorporated in Texas. At the time of its formation, Glen was investigating doing specialty coating applications with a thermal spray. He stated that the company did not do any business until 2006 or 2007, and at present, is in the business of selling EC-92 to Lonestar. He acknowledged that EC-92 is the only product that Energy sells. When asked why Energy was set up, Glen stated that they were looking to diversify some of the Lonestar assets, to sell product, and to do supplier agreements. He stated that Energy has never been sued, has never filed suit, has no employees, and has a checking account in a Houston bank. Glen insisted that Energy's business is conducted in Texas, but admitted that Energy has no telephone number, office, or warehouse. When asked if Energy's business was operated out of Lonestar's offices, Glen responded, "I guess," noting that because Lonestar's only customer is Energy, there was no need to conduct business outside of that office. Glen testified that orders for the coating product are placed from Lonestar's offices directly to the manufacturer and that one of Lonestar's employee's handles Energy's business.
Glen denied ever talking to Mr. Ginsberg about purchasing coating products directly from his company without going through Enviroshield, but admitted talking to Mr. Ginsberg about purchasing a product under a different patent at the end of 2006. He admitted visiting Mr. Ginsberg in Flordia on one occasion on behalf of Energy near the end of 2006 and having many conversations around that time with Mr. Ginsberg on the telephone. However, Glen denied telling anyone EC-92 was the same thing as Enviroshield or asking Mr. Ginsberg to change the product to make it different from Enviroshield product. He also insisted that neither Energy nor Lonestar has ever marketed the product EC-92 in Louisiana and denied ever forwarding any materials to potential customers in Louisiana on behalf of Energy to market EC-92.
In her deposition, Tonya stated that she has never lived or resided in Louisiana, has never paid taxes here, and she does not own personally any property in Louisiana. She admitted that she had an ownership interest in GTM, which owned property in New Iberia on which the Lonestar facility is located, and in Lonestar, which leases the property from GTM. She also admitted coming to Louisiana in July of 2009 to visit the Lonestar facility, visiting New Iberia on business around 2006, and having taken a vacation to New Orleans.
Tonya testified that Lonestar provides a service of applying industrial coatings and has more than ten different types of coatings. She is a fifty percent owner of Energy, which she stated was formed to buy and sell products. Energy's address is listed as the Texas residence she and her former husband, Glen, shared at the time the company was formed. Her testimony indicated she was not involved in the day-to-day operation of Energy or Lonestar and that her duties were limited to going over financial matters. She acknowledged that Energy buys EC-92 from Mr. Ginsberg and having spoken to Mr. Ginsberg.
Mr. Ginsberg, whose companies manufacture the epoxy coatings forming the basis of this lawsuit, testified that he was introduced to Glen through Mr. Sauce, whom Mr. Ginsberg knew was acquainted with Enviroshield. He could not recall when he met Glen or when his business relationship with Glen, Lonestar, and Energy began, but remembered meeting Glen for the first time in Texas. A November 6, 2007 e-mail from Glen to Mr. Ginsberg was presented describing their wonderful working relationship, and Mr. Ginsberg admitted he had been doing business with Lonestar and Energy before actually meeting Glen. At some point in the relationship, Glen advised Mr. Ginsberg that he had a new company called Energy, and according to Mr. Ginsberg, thereafter, most of the business he received was from Energy, with an occasional invoice from Lonestar.
Mr. Ginsberg testified at length regarding the different products his companies manufactures, and emphatically denied that the product he sold to Enviroshield is the same product he sold to Lonestar and Energy. He explained that Glen requested a specific label on the product he sold as MT-22 and that he agreed to label the product "EC-92," but did not charge Glen a labeling fee. Mr. Ginsberg acknowledged he also has had a business relationship with Mr. Sauce, paying him commissions on some sales. Mr. Ginsberg admitted that he entered into a nonexclusive distributorship agreement with Enviroshield and charged the company a $20,000.00 labeling fee. According to Mr. Ginsberg, Enviroshield did not apprise him of who their customers were and if he knew that Lonestar was Enviroshield's customer, he would not have sold the products to Lonestar. Mr. Ginsberg stated that his companies continue to do business with both Lonestar and Energy.
Following the conclusion of the hearing, the trial court concluded that Energy, Glen, and Tonya all had sufficient contact with Louisiana to maintain personal jurisdiction over them and entered a judgment denying the exception of personal jurisdiction. The defendants applied for supervisory writs with this court. On July 19, 2010, this court reversed in part and granted the exception of personal jurisdiction filed by Tonya, finding that Enviroshield failed to meet its burden of proving that Tonya had sufficient minimum contacts with the state of Louisiana to justify the exercise of personal jurisdiction over her. The writ was denied as to the denial of Energy and Glen's exception of personal jurisdiction. Enviroshield Technologies, L.L.C. v. Lonestar Corrosion Services, Inc., 2010-0614 (La. App. 1st Cir. 7/19/10)(unpublished). Writs were taken to the supreme court by Enviroshield, Glen, and Energy, which were all granted, and the case was remanded to this court for briefing, argument, and a full opinion. Enviroshield Technologies, L.L.C. v. Lonestar Corrosion Services, Inc., 2010-1789, 2010-1935 (La. 10/15/10), 46 So.3d 1278.
In their writ application, defendants assert that the trial court erred in denying their exception to the court's jurisdiction in the following respects: (1) relying on the allegations of the pleadings rather than the evidence adduced at the hearing; (2) considering contacts outside of Louisiana to support its finding of personal jurisdiction; (3) considering contacts of the defendants with the State of Louisiana after the lawsuit was filed; (4) considering contacts and business operations of Lonestar within Louisiana to support jurisdiction against Glen, Tonya, and Energy; and (5) improperly disregarding the fiduciary shield doctrine.
PERSONAL JURISDICTION
Appellate courts conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Quality Design and Construction, Inc. v. Tuff Coat Manufacturing, Inc., 2005-1712, p. 3 (La. App. 1st Cir. 7/12/06), 939 So.2d 429, 432. Generally, a trial court's factual findings underlying the decision are reviewed under the manifest error standard. Id. When, as here, a trial court conducts an evidentiary hearing on the exception of jurisdiction, the plaintiff must prove facts in support of the claim that jurisdiction is proper by a preponderance of the evidence, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 109 (La. 1991). We note that the trial court did set forth the allegations of Enviroshield's petition in its "findings of fact" in the written reasons for judgment; however, the court also referred to the evidence adduced at the hearing on the exception in its written reasons. Under these circumstances, we reject defendants' claim that the trial court relied only on the allegations of the pleadings rather than the evidence adduced at the hearing in ruling on the exception. However, the trial court did not make any specific findings as to which contacts served as the basis for its conclusion that the defendants maintained sufficient contacts with Louisiana to support the assertion of jurisdiction over them. As such, we shall review the evidence adduced at the hearing de novo in determining whether Enviroshield met its burden of proving facts in support of its claim that personal jurisdiction over the defendants is proper by a preponderance of the evidence.
Louisiana's long-arm statute provides that a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and the Constitution of the United States. La.R.S. 13:3201(B). The limits of the Louisiana Long-Arm Statute and the limits of constitution are coextensive, and the sole inquiry into jurisdiction over a nonresident is whether it comports with constitutional due process. Alonso v. Line, 2002-2644, p. 6 (La. 5/20/03), 846 So.2d 745, 750, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003).
To comport with constitutional due process requirements, the nonresident defendant must have purposefully established "minimum contacts" with the forum state such that he could reasonably anticipate being haled into court there, and the exercise of personal jurisdiction much be such that it "does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct 154, 158, 90 L.Ed. 95 (1945). A two-part test has been developed to determine whether minimum contacts exist, which requires a court to engage in a factual determination of the relationship among the forum, the defendant, and the litigation. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed. 2d 683 (1977). First, it must be shown that the defendant established minimum contacts with the forum state, which is satisfied by a single act or actions by which the defendant "purposefully avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws." Burger King Corporation v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). "The nonresident's 'purposeful availment' must be such that the defendant 'should reasonably anticipate being haled into court' in the forum state." Alonso, 2002-2644 at p. 7, 846 So.2d at 751 (citing World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).
The plaintiff asserting personal jurisdiction over a nonresident defendant has the initial burden of establishing that the defendant has established minimum contacts with this state. If plaintiff meets this burden, a "presumption of reasonableness arises," and the burden then shifts to the defendant to prove the assertion of would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant's minimum contacts with the forum. Alonso, 2002-2644 at p. 8, 846 So.2d at 751. In examining the fundamental fairness issue, courts examine: (1) the defendant's burden; (2) the forum state's interest; (3) the plaintiff's interest in convenient and effective relief; (4) the judicial system's interest in efficient resolution of controversies; and (5) the state's shared interest in furthering fundamental social policies. Id.
A court's exercise of personal jurisdiction may be "general" or "specific." A court may exercise general jurisdiction over a defendant when the defendant has engaged in continuous and systematic contacts with the forum state, but the contacts are not necessarily related to the lawsuit. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-416, 104 S.Ct. 1868, 1872-1873, 80 L.Ed.2d 404 (1984). A court may exercise specific jurisdiction over a nonresident defendant when the defendant has purposefully directed its activities at residents of the forum state and the litigation results from alleged injuries that arise out of or relate to those activities. Helicopteros Nacionales de Columbia, S.A., 466 U.S. 414, n. 8, 104 S.Ct at 1872, n. 8.
Time Frame for Evaluation of Contacts
Before determining whether Enviroshield met its burden of establishing the existence of minimum contacts by the defendants, we must first address the defendants' argument that a court should only consider those contacts occurring prior to the time the lawsuit is filed in evaluating contacts with the forum state, regardless of whether a court is making a general or a specific jurisdictional determination. They submit that since the lawsuit was filed on August 31, 2007, only contacts prior to that date could have caused the lawsuit, and insist that only those contacts are relevant to the lawsuit. Defendants rely on federal cases claimed to stand for the proposition that general jurisdiction can be assessed by evaluating contacts of a defendant with the forum over a reasonable number of years, up to the date a lawsuit is filed. See Access Telecom, Inc. v. MCI Telecommunications, Corporation, 197 F.3d 694, 717 (5th Cir. 1999). They ask this court to rule as a matter of law that only those contacts up until the time the lawsuit was filed on August 31, 2007, may be considered in evaluating the jurisdiction issue. Under the circumstances of this case, we decline to so rule.
In the petition, Enviroshield alleged that it entered into an exclusive agreement with Lonestar governing the sale and purchase of Enviroshield, which specifically restricted Enviroshield's sale of its product labeled "Enviroshield" to Lonestar and limited Lonestar's purchase of Enviroshield directly from Enviroshield. It alleged that after entering into the agreement, Glen and Tonya formed Energy, Lonestar stopped ordering from Enviroshield, but held Enviroshield to the terms of the agreement, thereby prohibiting Enviroshield from selling its product to any other entity or individual. Enviroshield alleged that the product sold by Energy, EC-92, to its sole customer, Lonestar, is the same coating product subject to the agreement, namely, Enviroshield. In its brief, Enviroshield posits that the net effect of this activity is to remove Enviroshield as a "middleman" supplier of Enviroshield to Lonestar. In other words, Enviroshield contends, it could only sell Enviroshield to Lonestar, but Lonestar did not order its product because Lonestar, through Energy, was going around Enviroshield to get EC-92 from Enviroshield's manufacturer, Mr. Ginsberg, which had granted Enviroshield the right to private label its product. The alleged tort in this case was the conduct of defendants in forming Energy to market EC-92 to the detriment of Enviroshield, which allegedly constituted an unfair trade practice and which allegedly interfered with Enviroshield's exclusive arrangement with Lonestar.
Enviroshield contends that this is a case of specific jurisdiction involving a continuing tort, which, under Louisiana law, occurs as long as both the tortuous conduct and the damage continues. See Benton, Benton and Benton v. Louisiana Public Facilities Authority, 95-1367, p. 4 (La. App. 1st Cir. 4/4/96), 672 So.2d 720, 723, writ denied, 96-1445 (La. 9/13/96), 679 So.2d 110. Enviroshield contends that in such situations, the contacts after the date of the filing continue to be relevant to the issue of specific jurisdiction because they pertain to the defendants' tortious activity. In support of this argument, Enviroshield relies on Beverly Hills Fan Company v. Royal Sovereign Corp., 21 F.3d 1558, 1562-63 (Fed. Cir. 1994), cert. dismissed, 512 U.S. 1273, 115 S.Ct. 18, 129 L.Ed.2d 917 (1994), in which the court stated that where the tort alleged involves continuous infliction of injury upon the victim, it would be arbitrary to identify a single moment after which a defendant's contacts with the forum necessarily become irrelevant to the issue of specific jurisdiction.
Similarly, we agree that where, as here, an ongoing conspiracy to deprive a company of business is alleged, it would be improper to consider only defendants' contacts with Louisiana prior to the filing of the lawsuit in evaluating whether the minimum contacts prong of the due process test is met. Enviroshield filed its initial unfair trade practices lawsuit in 2007, but added an alleged co-conspirator as a defendant in 2010, who admitted that in late 2009, he was still selling epoxy coating products to both Lonestar and Energy. The defendants' testimony in the depositions regarding dates and timelines for their activities was often vague. We believe that the defendants' ongoing contacts with the forum are relevant in determining whether they are guilty of the allegations of unfair trade practices for forming a second corporation to sell epoxy coatings under its own label after entering into an exclusive alliance agreement with Enviroshield to sell Enviroshield's product irrespective of the date on which those actions occurred. Because defendants' Louisiana contacts are relevant to the unfair trade practices and intentional interference with contact claims, we hold that the jurisdictional analysis is not limited to considering only pre-lawsuit activities undertaken by the defendants in this forum. Therefore, we shall consider all contacts, whether occurring before or after the filing of the lawsuit, having relevance to the alleged ongoing tortious conduct, in determining whether Louisiana may assert specific jurisdiction over the defendants.
Energy's Contacts with Louisiana
The evidence established that Glen and Tonya, now divorced, own Lonestar, Energy, and GTM. GTM owns immoveable property in New Iberia, on which Lonestar maintains a facility and leases the property from GTM. Glen testified by deposition that Energy was formed for the sole purpose of purchasing, and then selling, an epoxy coating known as EC-92 to Lonestar, a product Energy purchased from the same company that manufactured Enviroshield. The evidence at the hearing demonstrated that Energy has no offices, warehouses, property, insurance coverage, or employees of its own. Instead, Energy conducts its business out of Lonestar's facilities, its only customer is Lonestar, and it uses Lonestar's employees to do its work. Glen acknowledged that Energy's orders are placed from Lonestar's offices with Mr. Ginsberg. While Glen denied marketing the product EC-92 in the State of Louisiana on behalf of Energy, Enviroshield produced evidence contradicting that statement. According to Mr. Jimmy Schneider, a Louisiana resident, Glen had attempted to sell EC-92 in Louisiana and represented to him that it was the same product as Enviroshield.
In its brief, Enviroshield relies on several documents in the record it claims illuminates Glen and Lonestar/Energy's activities in Louisiana, specifically an invoice showing Energy's payment for shipment of EC-92 to Lonestar's Louisiana facility and Lonestar/Energy's marketing of EC-92 in Louisiana through six sales representatives. However, this court will not consider this evidence in this appeal in determining the jurisdictional issue, as it was not properly and officially offered into evidence at the hearing on the exception of jurisdiction. See Denoux v. Vessel Management Services, Inc., 2007-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.
We believe that the evidence established that Energy has sufficient minimum contacts with Louisiana because of the manner in which that company has been run by Glen in conjunction with Lonestar. Glen ran Energy as if it were a part of Lonestar, without regard for its separate corporate identity. Lonestar, over which Louisiana undeniably has personal jurisdiction, markets and sells epoxy coatings out of its Louisiana facility and through Glen, attempted to market EC-92 in Louisiana, the sale of which is alleged by Enviroshield to be an unfair trade practice. Lonestar is Energy's only customer. Mr. Ginsberg's testimony established that after Glen informed him that he had formed a new company, Energy, most of the sales of EC-92 were to Energy. Under these circumstances, we find that Energy, through the actions of Glen and Lonestar, has purposefully availed itself of the privilege of conducting business in this state and that its activities are such that it could reasonably be expected to be haled into court in Louisiana.
In their brief, respondents note state that Lonestar admitted to the jurisdiction of the Louisiana court because it has and continues to engage in "continuous and systematic" contacts with Louisiana.
As Enviroshield met its burden of showing that minimum contacts existed, it became incumbent on Energy to prove that the assertion of jurisdiction would be so unreasonable as to overcome the presumption of reasonableness created by Energy's minimum contacts with Louisiana. Energy offered no evidence to demonstrate that it would be unreasonable to require it to defend this lawsuit in Louisiana. Because the alleged cause of action is related to and arises out of Energy's purposeful contacts in Louisiana, and because Energy failed to demonstrate how the assertion of jurisdiction over it by a Louisiana court would be unfair, we conclude that the assertion of specific jurisdiction over Energy by a Louisiana court is proper. Accordingly, the trial court properly denied the exception of jurisdiction raised by Energy.
Glen's contacts with Louisiana
The evidence demonstrated that Glen, as the president of Lonestar, met with Enviroshield in Louisiana regarding its product and entered into the contract serving as the basis of this lawsuit with Enviroshield, a Louisiana company, to allow Lonestar to market and sell the Enviroshield product. The record also indicates that Glen targeted a Louisiana resident to market EC-92 in Louisiana. It is undeniable that his activities in Louisiana satisfy the minimum contacts test. However, Glen contends that Louisiana may not assert jurisdiction over him individually, urging that the evidence demonstrated that all of his contacts with Louisiana were carried out as a corporate representative of Lonestar. He argues that he is protected from having to defend the lawsuit in his individual capacity by the "fiduciary shield doctrine." This doctrine is rooted in the principle that the acts of a corporate officer in his corporate capacity cannot form the basis for jurisdiction over him in an individual capacity, and requires a court to look at the individual and personal contacts of the officer and employee within the forum state. Southeast Wireless Network, Inc. v. U.S. Telemetry Corporation, U.S., 2006-1736, p. 11 (La. 4/11/07), 954 So.2d 120, 128. However, the fiduciary shield doctrine will not defeat personal jurisdiction where the non-resident corporate agent commits a tort within a forum state that would subject him to personal liability under the laws of that state. Id.
In Southeast Wireless Network, Inc., 2006-1736 at p. 12, 954 So.2d at 129, the Louisiana supreme court rejected the application of the fiduciary shield doctrine to defeat the assertion of personal jurisdiction over a director of a foreign corporation, which had its principle place of business in Louisiana, where all of the actions giving rise to the cause of action were done in the director's corporate capacity. In so doing, the court observed that the director should have been aware that he could be subject to personal liability for his actions or inactions under Louisiana law. Thus, the court concluded, despite the fact that the director's actions may have been done in a corporate capacity, Louisiana law would not permit a director's wrongdoings in the sale of securities to escape personal responsibility via a corporate shield. Id.
Similarly, we find the fiduciary shield doctrine to be inapplicable to defeat the exercise of personal jurisdiction over Glen. Glen is being sued in his individual capacity for essentially creating Energy to interfere with Enviroshield's contract with Lonestar and deprive Enviroshield of business, which is alleged to be an unfair trade practice and an intentional interference with contract. While Energy was formed in Texas, the record demonstrates it has virtually no corporate identity and is, in essence, the alter ego of Glen, who ran Energy and Lonestar interchangeably. See SteriFx, Inc. v. Roden, 41, 383, p. 8 (La. App. 2nd Cir. 8/25/06), 939 So.2d 533, 538. Under these circumstances, we decline to allow Glen to hide behind the fiduciary shield doctrine. Because Glen had sufficient contacts with Louisiana to justify the assertion of personal jurisdiction over him and because he failed to demonstrate that the assertion of jurisdiction would be fundamentally unfair, the trial court's denial of his exception to jurisdiction is proper.
Tonya's Contacts with Louisiana
The evidence in the record demonstrates that Tonya had very few direct contacts with Louisiana in any capacity. She never lived or worked in Louisiana, did not personally own property in Louisiana, and only visited the state approximately four times in the past ten years. She acknowledged that she had come to Louisiana to visit Lonestar's New Iberia facility. There is no indication that Tonya was involved in the day-to-day operation of either Energy or Lonestar or that she was instrumental in the formation of either corporation. We find that Enviroshield failed to meet its burden of proving by a preponderance of the evidence that Tonya had sufficient contacts with Louisiana to justify the exercise of personal jurisdiction over her in an individual capacity. Accordingly, we reverse that portion of the trial court's judgment denying Tonya's exception of personal jurisdiction.
CONCLUSION
For the foregoing reasons, we grant the writ in part and deny the writ in part. The trial court's judgment denying the exception of personal jurisdiction is reversed in part and the exception is maintained as to Tonya Cronin. Judgment is entered dismissing Enviroshield's lawsuit against Tonya Cronin, with prejudice. In all other respects, the writ is denied.