Trigeant Holdings, Ltd. and Trigeant Holdings, LLc v. Jerral W. Jones--Appeal from 113th District Court of Harris County

Opinion issued July 28, 2005

 

 

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00542-CV

____________

TRIGEANT HOLDINGS, LTD. AND TRIGEANT HOLDINGS, LLC, Appellants

V.

JERRAL W. JONES, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 1999-01743

O P I N I O N

This is an accelerated, interlocutory appeal from the trial court s denial of a special appearance filed by appellants, Trigeant Holdings, Ltd. and Trigeant Holdings, LLC (collectively the Trigeant Holdings entities ). See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(7) (Vernon Supp. 2004-2005). The Trigeant Holdings entities argue that the trial court erred by denying their special appearance for the following reasons: (1) the trial court lacked specific jurisdiction over the Trigeant Holdings entities because none of the appellee s, Jerral W. Jones s, causes of action arose out of activities that the Trigeant Holdings entities purposefully directed toward Texas; (2) the trial court lacked general personal jurisdiction over the Trigeant Holdings entities which had no continuous and systematic contacts with Texas; // and (3) the exercise of personal jurisdiction over the Trigeant Holdings entities would not comport with fair play and substantial justice. We affirm the trial court s denial of the Trigeant Holdings entities special appearance.

Background

In 1982, Jerral W. Jones and Sanford Brass, both Texas residents, jointly executed a secured promissory note for $15,200,000. The funds were invested in Sentry Refining, Inc., a refinery jointly owned by Jones and Brass. Jones and Brass eventually defaulted on the note, prompting the Federal Deposit Insurance Corporation ( FDIC ) to bring suit against Jones and Brass to collect the balance owed.

Jones agreed to settle the case by personally paying $13,700,000 to the FDIC. As part of the settlement, Jones divested himself of all ownership interest in Sentry Refining, Inc. and transferred full ownership to Brass. In return, Brass executed three promissory notes to Jones intended to secure repayment of the $13,700,000 personally expended by Jones.

In 1987, Jones and Brass entered into an amended settlement agreement pertaining to the debt Brass owed Jones. The amended agreement provided that payment on two of the notes, in the combined principal amount of $6,525,000, would be non-recourse to Brass, that is, Brass would not be personally liable on the notes. The amended agreement further provided that the payment on the two notes was to come from profits, distributions, or liquidation proceeds derived from Brass s interest in a refinery located in Corpus Christi, Texas. // The Corpus Christi refinery was controlled by Trifinery Joint Venture ( TJV ), a Texas company in which Brass owned a 50% interest and into which Brass had transferred the assets of Sentry Refining, Inc.

Over the course of years, Brass represented to Jones that TJV was unprofitable. Brass claimed that TJV was unable to make any distributions to its shareholders, and Brass, therefore, could not make any payments to Jones. As a result, Brass did not make any payments on the notes. In 1994, TJV transferred all of its interest in the Corpus Christi refinery to Trifinery Petroleum Services ( TPS ), another Texas company in which Brass also owned a 50% interest. Brass later bought the other one-half-interest, giving him 100 % ownership of the Trifinery assets.

In 1999, Jones brought a declaratory judgment action against Brass in an attempt to enforce the terms, obligations and conditions in the settlement agreement addressing Brass s repayment to Jones. Jones further alleged breach of contract and breach of implied covenant of good faith and fair dealing.

On June 29, 2001, while Jones s suit against Brass was pending, TPS sold its interest in the Corpus Christi refinery for $17,663,665 to Trigeant, Ltd., a Florida company in which Brass s son, Arthur Brass, owned a 48.51% interest. Jones alleged that, at the time of Trigeant, Ltd. s purchase of the Corpus Christi refinery, the fair market value of the refinery was $38,000,000 to $44,000,000 more than twice the amount of the sale.

On the same day as the sale of the Corpus Christi refinery to Trigeant, Ltd., the Trigeant Holdings entities executed a Capitalization Agreement to purchase a 100% equitable ownership of Trigeant, Ltd. Pursuant to this agreement, the Trigeant Holdings entities acquired a 100% equitable ownership interest in all of Trigeant, Ltd. s assets, including the refinery. The Capitalization Agreement provides in pertinent part:

This Agreement . . . is entered into as of June 29, 2001, by and among Trigeant Holdings, LLC, a Florida limited liability company (the General Partner ), Trigeant Holdings, Ltd., a Florida limited partnership (the Buyer ), Harry Sargeant, II., Harry Sargeant, III, Daniel Sargeant, James Sargeant, and Arthur J. Brass, (the Sellers )

. . .

ARTICLE I

DEFINITIONS

. . .

Equity Interests shall mean the total of . . . (b) all of the issued and outstanding membership interests in Trigeant, LLC . . ., and (c) all of the issued and outstanding limited partnership interests of Trigeant, Ltd., . . .

 

ARTICLE II

PURCHASE AND SALE OF ASSETS; CLOSING

2.1Purchase and Sale of Sellers Assets. Subject to the terms and conditions of this Agreement, the Buyer agrees to purchase from Sellers, and Sellers and the General Partner agree to sell, transfer, convey, and

deliver to the Buyer at the Closing the Equity Interests.

 

Additionally, under this agreement, Arthur Brass exchanged his 48.51% interest in Trigeant, Ltd. for a 25% equity interest in the Trigeant Holdings entities and received a cash distribution from the Trigeant Holdings entities in an amount exceeding $1,000,000.

Jones joined the Trigeant Holdings entities, Arthur Brass, Trigeant, Ltd., TJV, and TPS to the suit pending against Sanford Brass. In addition to the causes of action already asserted against Sanford Brass, Jones sued the entities under the Texas Uniform Fraudulent Transfers Act ( UFTA ) for fraudulently transferring the refinery assets and its proceeds to various entities to avoid paying any of the proceeds to Jones. Jones also sued these entities for civil conspiracy alleging that they conspired to design and implement this scheme to fraudulently transfer the refinery assets and its proceeds to prevent Jones from receiving them. // Sanford Brass, Arthur Brass, Trigeant, Ltd., TJV, and TPS filed answers; however, the Trigeant Holdings entities filed a special appearance and answered subject to their special appearance.

The Trigeant Holdings entities special appearance asserted that the trial court did not have jurisdiction over them for the following reasons: (1) the Trigeant Holdings entities were formed and continued to exist under the laws of Florida and were not residents of Texas, no formal meetings took place in Texas, and the Trigeant Holdings entities did not conduct business in Texas; (2) the sale of the Trifinery assets was not made for the Trigeant Holdings entities benefit and the Trigeant Holdings entities did not engage in any specific acts within Texas in connection with the asset sale; and (3) Jones s allegations were insufficient to confer jurisdiction. Additionally, the Trigeant Holdings entities attached evidence in the form of an affidavit from Robert J. Stefans, Jr., Vice President of Trigeant Holdings, LLC. In his affidavit, Stefans testified to the following:

- Trigeant Holdings, LLC is a Florida limited liability company;

- Trigeant Holdings, Ltd. is a Florida limited partnership;- the Trigeant Holdings entities were formed and continue to exist under the laws of the State of Florida;

 

- Trigeant Holdings, Ltd. is the holding company for various entities including Trigeant, Ltd.;

 

- Trigeant Holdings, LLC is the general partner of Trigeant Holdings, Ltd.;

 

- neither Trigeant Holdings entity has ever been served with a lawsuit in Texas other than this suit;

 

- neither Trigeant Holdings entity maintains a place of business in Texas;

 

- neither Trigeant Holdings entity maintains any agents or employees in Texas;

 

- neither Trigeant Holdings entity owns any entity formed under Texas law, although Trigeant Holdings, LLC has ownership interests in some entities which do business in Texas, including Trigeant, Ltd.;

 

- the registered agent for the Trigeant Holdings entities is in Miami, Florida;

 

- all formal meetings for the Trigeant Holdings entities are conducted in Florida;

 

- neither Trigeant Holdings entity conducts any business, owns property, or has any bank accounts in Texas;

 

- the sole office for the Trigeant Holdings entities is in Boca Raton, Florida;

 

- neither Trigeant Holdings entity has engaged in any business with Jones or Sanford Brass; and

 

- neither Trigeant Holdings entity has ever received a conveyance of any assets from TPS or of any assets formerly belonging to TPS.

 

In his response to the Trigeant Holdings entities special appearance, Jones alleged that,

during the course of this litigation, Brass [sic] took his scheme to deprive Jones of any payment under the settlement agreement to a new level. In 2001, he conspired with his son, Arthur J. Brass, and others to sell the refinery business without paying any sale proceeds to Jones. The conspirators designed a fraudulent scheme to prevent Brass s receipt of net sale proceeds, which necessarily would have been applied to the payment of [the two notes].

 

Accordingly, Jones argued that the trial court had specific jurisdiction over the Trigeant Holdings entities and attached the following evidence in support of his allegations that the proceeds of the refinery were being fraudulently transferred to various entities and Arthur Brass:

- two independent appraisals from 2000 and 2001, showing that the fair market value of the Trifinery business was between $28,000,000 and $45,600,000;

 

- the Asset Purchase Agreement executed in 2001 between TPS and Trigeant, Ltd., showing that the Trifinery assets were sold for $17,663,665 and that the agreement was executed in Houston, Texas;

 

- the Trigeant, Ltd., Limited Partnership Agreement, showing that Arthur Brass owned 48.51% and Trigeant Holdings, LLC owned 1% of Trigeant, Ltd. at the time of Trigeant, Ltd. s purchase of the Trifinery assets;

- the Employment Agreement between Trigeant, Ltd. and Arthur Brass reflecting that Arthur Brass was to be paid $400,000 a year to serve as director of business development for Trigeant, Ltd.;

 

- a promissory note indicating that Arthur Brass owed Harry Sargeant, III (his partner in Trigeant, Ltd. and manager of Trigeant Holdings, LLC) $490,000; //

 

- a Consulting Agreement indicating that Sanford Brass was paid $20,833.33 a month and the use of a driver and car to consult with Trigeant, Ltd.;

 

- the Capitalization Agreement of Trigeant Holdings, Ltd. executed in Houston, Texas in 2001 reflecting Arthur Brass s transfer of his equity interest in Trigeant, Ltd. in exchange for a 25% membership interest in Trigeant Holdings, Ltd.

 

- the Capitalization Agreement was executed in Houston, Texas; and

 

- excerpts from Arthur Brass s deposition during which he testified about the income he received for his partnership interest in the Trigeant Holdings entities.

 

Jones alleged that all proceeds from the transfer of assets to the Trigeant Holdings entities and those proceeds paid to Arthur Brass should have been applied to repay the settlement notes owed to him. Jones did not allege general jurisdiction, did not rely on an alter ego theory, and did not assert the parent-subsidiary relationship as a basis for jurisdiction.

The trial court denied the Trigeant Holdings entities special appearance.

Special Appearance

Standard of Review

The plaintiff bears the initial burden of pleading sufficient allegations to bring a non-resident defendant within the personal jurisdiction of a Texas court. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). However, upon filing a special appearance, the non-resident defendant assumes the burden to negate all the bases of personal jurisdiction alleged by the plaintiff. Id. The existence of personal jurisdiction is a question of law, reviewed de novo, but that determination must sometimes be preceded by the resolution of underlying factual disputes. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App. Houston [1st Dist.] 2000, pet. dism d w.o.j.). Although findings of fact are not required, when, as here, the trial court does not file findings of fact in a special appearance, all questions of fact are presumed to support the judgment. See Tex. R. App. P. 28.1; Ace Ins. Co. v. Zurich Am. Ins. Co., 59 S.W.3d 424, 427 (Tex. App. Houston [1st Dist.] 2001, pet. denied).

Personal Jurisdiction and Due Process Requirements

Texas courts may assert personal jurisdiction over a non-resident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards. Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). The Texas long-arm statute reaches as far as the federal constitutional requirements of due process will allow. Id. Thus, the Texas long-arm statute requirements are satisfied if exercising jurisdiction comports with federal due process limitations. Id. We rely on precedent from the United States Supreme Court as well as our own state s supreme court decisions in determining whether a non-resident defendant has met its burden to negate all bases of jurisdiction. BMC Software, 83 S.W.3d at 795.

Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a non-resident defendant established minimum contacts with Texas and maintenance of the suit does not offend traditional notions of fair play and substantial justice. Int l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945). Accordingly, we focus upon the defendant s activities and expectations in deciding whether it is proper to call it before a Texas court. Id.

The minimum-contacts analysis requires that a defendant purposefully avail itself of the privilege of conducting activities within Texas, thus invoking the benefits and protections of our laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 (1985). The defendant s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980). Adefendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. Jurisdiction is premised on notions of implied consent that, by invoking the benefits and protections of a forum s laws, a non-resident consents to suit there.Michiana Easy Livin Country, Inc. v. Holten, , 48 Tex. Sup. Ct. J. 789, 2005 WL 1252268 at *3, (Tex. May 27, 2005).

A defendant is not subject to jurisdiction here if its Texas contacts are random, fortuitous, or attenuated. See id.; Guardian, 815 S.W.2d at 226. Nor can a defendant be haled into a Texas court based on the unilateral acts of a third party. Michiana, 2005 WL 1252268 at *3. It is the quality and nature of the defendant s contacts, rather than their number, that is important to the minimum-contacts analysis. Guardian, 815 S.W.2d at 230 n.11.

Specific Jurisdiction

A defendant s contacts with a forum can give rise to either general or specific jurisdiction. CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996). Specific jurisdiction is established if the defendant s alleged liability arises from or is related to an activity conducted within the forum. Id. When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship between the defendant, the forum, and the litigation. Blair Communications, Inc. v. SES Survey Equip. Serv., Inc., 80 S.W.3d 723, 727 (Tex. App. Houston [1st Dist.] 2002, no pet.); Mem l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex. App. Houston [14th Dist.] 1992, no writ). The contacts must be purposely directed at or take place within the forum and must have a substantial connection that results in the alleged injuries. Mem l Hosp. Sys., 835 S.W.2d at 650. Merely contracting with a Texas citizen does not, by itself, satisfy the minimum contacts requirement. Id. Rather, the focus of the examination must be the nature of the contacts and the nexus these contacts create with the forum state. McDermott v. Cronin, 31 S.W.3d 617, 621 22 (Tex. App. Houston [1st Dist.] 2000, no pet.).

Application of the Texas Long Arm Statute

The Trigeant Holdings entities initially argue that the trial court lacks specific jurisdiction over them because they did not commit any tort in whole or in part in Texas as required for personal jurisdiction by the Texas Long-Arm Statute. // They argue that, as a matter of law, they cannot be held liable for any alleged violation of the UFTA because (1) they are not transferees under the statute and (2) the statute does not give Jones any remedy against them. We disagree.

Commission of Tort Violation of UFTAThe Trigeant Holdings entities are transferees and subject to liability under the UFTA. The UFTA not only creates liability against the person for whose benefit the transfer was made, such as the debtor, but also against the first transferee of the asset, or any subsequent transferee. See Tex. Bus. & Com. Code Ann. 24.009(b) (Vernon 2002); // see also Amoco Chem. Co. v. Tex Tin Corp., 925 F. Supp. 1192, 1200 01 (S.D. Tex. 1996). The UFTA does not define who is a transferee under the statute. It does, however, specifically define the term transfer. Under the UFTA, transfer means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance. Tex. Bus. & Com. Code Ann. 24.002(12) (Vernon 2002) (emphasis added). Under this broad definition of transfer, the purchase by and transfer to the Trigeant Holdings entities of an equitable interest in the Corpus Christi refinery the very subject of Jones s causes of action renders the Trigeant Holdings entities transferees under the UFTA. See, e.g., Tel. Equip. Network v. TA/Westchase Place Ltd., 80 S.W.3d 601, 611 (Tex. App. Houston [1st Dist.] 2002, no pet.) (holding that party became a transferee under UFTA once it acquired a lien against asset alleged to have been fraudulently transferred.)

Likewise, Jones has a potential remedy against the Trigeant Holdings entities. The expansive language of the UFTA s remedy section provides Jones with a broad range of remedies that can be sought from subsequent transferees, such as the Trigeant Holdings entities, if they are found to have participated in the fraudulent transfer of assets. Section 24.008, entitled Remedies of Creditors, provides as follows:

(a) In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 24.009 of this code, may obtain:

(1)avoidance of the transfer or obligation to the extent necessary to satisfy the creditor s claim;

(2)an attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the applicable Texas Rules of Civil Procedure and the Civil Practice and Remedies Code relating to ancillary proceedings; or

(3)subject to applicable principles of equity and in accordance with applicable rules of civil procedure:

(A)an injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;

(B)appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or

(C)any other relief the circumstances may require.

Tex. Bus. & Com. Code Ann. 24.008(a) (Vernon 2002) (emphasis added). See, e.g., Airflow Houston Inc. v. Theriot, 849 S.W.2d 928, 934 (Tex. App. Houston [1st Dist.] 1993, no writ) (interpreting UFTA s broad equitable remedy language, by holding that judgment against transferee for entire amount of debt owed to defrauded creditor was permitted under equitable relief provisions of UFTA, regardless of whether entire value of asset or interest in asset was ever received by transferee); Guiterrez v. Givens, 1 F. Supp. 2d 1077, 1087 (S.D. Cal. 1998) (interpreting the UFTA s broad equitable remedy language to mean that, when sufficient allegations exist regarding an entity s complicity with a debtor to fraudulently transfer assets, it was possible for debtor to make a claim for relief against entity). Accordingly, it is possible for Jones to obtain a remedy against the Trigeant Holdings entities under the UFTA if it is found, as alleged by Jones, that they received fraudulently transferred assets in bad faith and in complicity with Sanford Brass. //

Minimum Contacts

Next, the Trigeant Holdings entities argue that they do not have sufficient minimum contacts with Texas for the trial court to exercise specific jurisdiction overthem. We disagree.

The Trigeant Holdings entities acquisition of an ownership interest in a refinery in Corpus Christi, Texas is the contact at issue. The crux of Jones s claims against the Trigeant Holdings entities for violation of the UFTA and civil conspiracy is that the Trigeant Holdings entities purchased and received a 100% equitable ownership of Trigeant, Ltd., and, thus, equitable ownership of the very assets at issue in this case the Corpus Christi refinery and any proceeds from this refinery. Jones alleges that this transaction occurred so that Sanford Brass and Trigeant, Ltd. could avoid paying any future refinery proceeds to Jones, a Texas resident. Jones further alleges that the Trigeant Holdings entities purchased and received this interest with specific knowledge that there was a lawsuit pending in Texas regarding the proceeds from the Corpus Christi refinery.

By acquiring an equitable ownership interest in the Corpus Christi refinery at issue in this lawsuit, the Trigeant Holdings entities purposefully availed themselves of the benefits and privileges of conducting activities in Texas. This contact with Texas was not the result of a unilateral act of a third party nor was it random or fortuitous; it was the direct and intended consequence of the Trigeant Holdings entities execution of the Capitalization Agreement. As a result of this contact, the Trigeant Holdings entities became the beneficiaries of any future income streams generated by the refinery in Texas. Furthermore, this contact is the focus of the injuries Jones alleges that he suffered as a result of the Trigeant Holdings entities conduct. Because this contact was made during and with knowledge of the litigationin Texas concerning the proceeds of this very refinery, the Trigeant Holdings entities could expect to be haled into a Texas court regarding this contact. Under these circumstances, it would not offend the notions of fair play and substantial justice for the trial court to exercise specific jurisdiction over the Trigeant Holdings entities and require them to defend this action in Texas.

Conclusion

We affirm the order of the trial court.

 

George C. Hanks, Jr.

Justice

 

Panel consists of Justices Nuchia, Hanks, and Higley.