Capital Finance & Commerce AG v. First International Oil (Tex.App.-
Houston [1st Dist.] May 22, 2008) (Radack) (foreign defendant,
interlocutory appeal of special appearance)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Hanks and Higley
01-06-00822-CV Capital Finance & Commerce AG v. First International Oil Corporation n/k/a First
International Oil Co., Ltd; FIOC Holder Representative, L.L.C.; Daniel Idzal; Bill D. Holland; Dennis B.
Tower; and Sinopec Overseas Oil & Gas, Ltd.
Appeal from 55th District Court of Harris County
Trial Court Judge: The Honorable Jeffrey Vince Brown
Attorneys: Attorney John E. O'Neill, Reagan D. Pratt, Maria Wyckoff Boyce , Rebeca Aizpuru Huddle,
Rosemarie Donnelly, Sylvia A. Matthews, Joe C. Holzer, Kendall M. Gray Joe C. Holzer
O P I N I O N
This is an accelerated, interlocutory appeal from an order sustaining a special appearance. 1 See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (Vernon Supp.
The record on appeal has been partially sealed by order of the trial court. See TEX. R. CIV. P. 76a.
challenges the special appearances rendered in favor of appellees, Sinopec Overseas Oil & Gas, Ltd.
(Sinopec Overseas) and FIOC Holder Representative, L.L.C. (Holder Representative). In four issues,
Capital Finance contends that Texas may properly assert personal jurisdiction, both specific and general,
over Capital Finance’s claims that Sinopec Overseas and Holder Representative, in conspiracy with others,
fraudulently diverted funds deriving from a merger transaction in order to prevent payment of a contingent
commission, or finder’s fee, to Capital Finance. We affirm.
Facts and Procedural Background
A. Overview of Pertinent Entities
Capital Finance is a brokerage company located in Zug, Switzerland. The commission that Capital Finance
seeks derives from its agreement with former First International Oil Corporation (former FIOC) and was
contingent upon Capital Finance’s obtaining a purchaser of former FIOC’s stock. Former FIOC ultimately
merged with Sinopec International Petroleum Exploration and Projection Corporation (SIPC) in a
transaction that closed in August 2004 and resulted in several new entities. Capital Finance’s agreement
with former FIOC predates that merger by two years. SIPC is part of a larger oil company owned by the
government of The People’s Republic of China (China).
Capital Finance’s named defendants include First International Oil Co., Ltd.
and Holder Representative, Capital Finance also sued three individuals who were
officers of former FIOC, none of whom have contested jurisdiction. New FIOC is a
Bermuda limited-liability corporation, with principal headquarters in Kazakhstan.
Holder Representative, Sinopec Overseas, and new FIOC were all formed
incident to the merger of SIPC and former FIOC. Holder Representative, formed
shortly after the merger, is a Delaware limited-liability corporation with headquarters
in New York City. Sinopec Overseas is a Cayman-Islands limited-liability
corporation with principal headquarters in Beijing; it was formed by Cayman-Islands
counsel approximately three months before the actual merger. Sinopec Overseas has
many subsidiaries, which operate in many different countries and were organized
under the laws of several different countries. New FIOC is one of Sinopec Overseas’
subsidiaries.
B. Preliminaries to the Merger of Former FIOC and SIPC
Former FIOC was a Delaware corporation with headquarters, but only minimal assets, in Houston. Through
subsidiaries, former FIOC owned licenses to explore oil and gas properties, almost all of which were located
in the Republic of Kazakhstan.
Capital Finance’s briefing often does not distinguish between former FIOC and new FIOC, referring to both
as “FIOC.” Capital Finance’s claims against new FIOC include a successor-liability claim for the finder’s fee
that Capital Finance seeks in this lawsuit. Capital Finance has not sued either SIPC or Nahid deCamillis, to
whom a finder’s-fee commission was ultimately paid, in the underlying lawsuit.
individuals and entities from whom former FIOC solicited assistance to locate companies with sufficient
capital to purchase the stock of former FIOC. Former FIOC was introduced to SIPC in Beijing in spring
2002.
C. Letter Agreement between Capital Finance and Former FIOC
On June 2, 2002, Yousefzai and the chairman of former FIOC executed a letter agreement to “formalize”
and “define” their relationship.3 Under the terms of this letter agreement, former FIOC agreed to pay
Capital Finance a finder’s-fee commission equal to five percent of the purchase price. The agreement was
contingent upon “direct efforts” by Capital Finance that resulted in the sale of the outstanding shares of
former FIOC. The letter agreement recites that the five percent commission was an increase over a two
and one-half percent commission that the parties had previously discussed and advised Yousefzai that the
“commission payable will be shared with your associates,” including “Mrs. N. DeCamillis (with whom you
have a formal arrangement).”
D. Memorandum of Understanding between SIPC and Former FIOC; Formation of Sinopec Overseas
On January 19, 2004, former FIOC and SIPC entered into a memorandum of
Yousefzai signed the agreement as managing director of Capital Finance. The chairman of former FIOC,
who signed the agreement on its behalf, is a named defendant in the underlying lawsuit.
4
capital stock and other equity interests of former FIOC.” The MOU identifies the buyer as either “SIPC or a
direct or indirect subsidiary or affiliated company of SIPC” and the “Merger Sub” as a “direct, wholly owned
subsidiary of Buyer.” Three days later, on January 21, 2004, SIPC formed Sinopec Overseas, a Cayman-
Islands, limited-liability corporation with headquarters in Beijing, as “buyer,” in accordance with the MOU.
The payment-calculation provisions of the MOU stated an aggregate consideration to be paid by the buyer
(by definition, by SIPC or a direct or indirect subsidiary or affiliated company of SIPC) “to all of the holders
of [former] FIOC common stock and Options.” The MOU specified that a portion of the total consideration
would be placed in an escrow account to protect the buyer (again, by definition, SIPC or a direct or indirect
subsidiary or affiliated company of SIPC) from any breaches of merger-related warranties by former FIOC.
The MOU also envisioned an escrow account to protect payments to former FIOC shareholders.5
In addition to many other items that affected calculation of the total aggregate consideration, the
calculations specified that transaction costs of former FIOC would “include finder’s fees,” which would be
deducted from the aggregate consideration,
4 The president of former FIOC signed the MOU; he is a named defendant in the underlying lawsuit.
5 Among other provisions, the MOU contemplated further due diligence by SIPC to confirm valuations and
recognized the possibility of adjustments in the per share price.
E. March 16, 2004 Merger Agreement; Formation of Holder Representative
On March 16, 2004, former FIOC entered into a merger agreement with SIPC and Sinopec Overseas
whereby Sinopec Overseas would acquire former FIOC, which would then be merged “with and into” a
“Merger Sub.” The merger agreement did not identify the merger sub by name, but specified that it would
be structured as a Delaware corporation and that former FIOC would cease to exist as a Delaware
corporation once the merger became effective. The transaction was both a merger and an acquisition of
former FIOC by Sinopec Overseas; once the transaction closed, the shares of former FIOC terminated,
and the holders of the shares, or equity owners, were entitled to cash payment.
On April 21, 2004, after the merger agreement was signed, a “special committee” of former FIOC’s board of
directors formed Holder Representative as the “merger sub” and Delaware company contemplated by the
merger agreement. Holder Representative was created solely to represent the interests of former FIOC
stockholders, option holders, and warrant holders in funds to be held in the escrow account contemplated
by the MOU. Holder Representative conducted no other business or activity.6
Holder Representative’s board of directors comprised three former stockholders, Victory Ventures LLC,
Endeavor Capital Corporation, and Daniel Izdal who then chose a board of managers comprised of William
Bonadies, Carl Kolbet, and Daniel Izdal. Izdal is a Texas resident.
7
which we have referred to in this opinion as “new FIOC,” as “a new, wholly ownedBermuda limited
company” of Sinopec Overseas to serve as “Merger Sub pursuant to this merger agreement.” 8 New FIOC
was the “acquisition vehicle” for the shares of former FIOC shareholders.
Pertinent to this litigation, the merger agreement specified that (1) a finder’s fee commission would be paid
on closing; (2) the purchaser, Sinopec Overseas, would owe no finder’s fee commission; (3) the finder’s fee
commission would be paid to Mrs. Nahid DeCamillis and Moyes & Co; (4) former FIOC had provided the
Buyer (Sinopec Overseas) with copies of all agreements with Moyes & Co., Inc., and Mrs. Nahid DeCamillis.
In addition, this section of the merger agreement disclaims any other “brokerage, finder’s or other fee or
commission” in connection with the transactions contemplated by the merger agreement.9
7 The parties generally refer to new FIOC as FIOC Limited, but also refer to this company as FIOC
Bermuda. The merger agreement sometimes refers to new FIOC as the “Amalgamated Company.”
8 Former FIOC ceased to exist once the merger became effective. Capital Finance’s pleadings
nonetheless treat former FIOC and new FIOC as a single party and refer to both as FIOC.
9 More generally, the merger agreement specified that, when the merger became effective, “all the
property, rights, privileges, powers, and franchises of the Company” (identified in the merger agreement as
former FIOC) “shall vest and continue in the Amalgamated Company” (new FIOC; identified generally as
the new Bermuda merger sub in the merger agreement). As Capital Finance acknowledges, “all debts,
liabilities, obligations and duties” of former FIOC and Holder Representative “would continue and become
the debts, liabilities, obligations and duties of the Amalgamated Company,” again, new FIOC, under the
merger agreement.
Sinopec Overseas provide a portion of the purchase consideration by immediate wire transfer of funds
then available to Citibank, in accordance with the escrow agreement. In accordance with the merger
agreement and a separate escrow agreement, an escrow fund was established at Citibank’s offices in New
York City. As required by the merger agreement, Holder Representative endorsed the escrow agreement,
and the parties to the merger agreement and Citibank endorsed the escrow agreement. The rights of
Sinopec Overseas to the escrow funds are limited to breaches of warranties and representations of the
merger agreement; the shareholders of former FIOC also have rights to the escrow funds, in that they
represented a right to payment for each share of former FIOC stock held.10
F. August 6, 2004 Closing
The closing memorandum of August 6, 2004 recites a purchase price of approximately $165,000,000. A
preliminary closing of the transaction between Sinopec Overseas and former FIOC took place in the offices
of a Houston law firm on July 28 and 29, 2004,11 followed by a ceremonial closing in London on July 29,
2004, and another closing in Houston on August 2, 2004. At this final closing, Sinopec
10 The escrow agreement is governed by New York law and requires arbitration in London.
The record reflects that the New York offices of Citibank were chosen because Citibank does
not have a branch in Houston.
11 The law firm has an office in Beijing, and much of the closing took place by telecopier transmission
between the Houston and Beijing offices.
contemplated escrow funds were deposited into the Citibank escrow account.
G. This Lawsuit
Capital Finance filed this action after the merger, claiming an unpaid debt for the five percent finder’s fee
commission stated in Capital Finance’s letter agreement with former FIOC. It is undisputed that an $8
million dollar finder’s fee commission was paid to Nahid DeCamillis.12
1. Pleadings
Capital Finance alleges that both Holder Representative and Sinopec Overseas conspired to assist the
former equity holders in their attempts to fraudulently transfer, convert, and remove assets remaining from
the merger of former FIOC and SIPC from the jurisdiction of the trial court in order to hinder, delay,
defraud, and generally prevent access to those proceeds. Capital Finance contends that both Holder
Representative and Sinopec Overseas “have the power,” under the escrow agreement that was made part
of the merger agreement, to make distributions, not only to former FIOC’s equity holders, but also “to
satisfy” former FIOC’s “undisclosed liability” to Capital Finance.
In addition to claiming that Sinopec Overseas participated in payment of
Capital Finance’s live pleadings include claims that Decamillis breached fiduciary duties owed to Capital
Finance, but DeCamillis is not named as a defendant.
Capital Finance claimed that Sinopec Overseas was the alter ego of or single business enterprise with new
FIOC, or both, and was created “as a sham to perpetrate a fraud” to prejudice former FIOC’s creditors.
Capital Finance’s allegations against Holder Representative and Sinopec Overseas sound exclusively in
tort. 13 They include (1) conspiracy to deprive Capital Finance of its finder’s fee commission, by assisting
to remove proceeds of the merger and by participating in the payment of “unlawful benefits” to Mrs.
DeCamillis, (2) fraudulent transfer of assets by Holder Representative, which actively participated in its
creation as an agent for former FIOC’s equity holders, with the express, additional purpose of assisting to
remove otherwise recoverable assets beyond the reach of Capital Finance, (3) fraudulent transfer by
Sinopec Overseas, by acting either as the alter ego of or single enterprise with, or both, new FIOC, also
with the express purpose of assisting to remove otherwise recoverable assets beyond the reach of Capital
Finance, and also, with awareness of the debt to Capital Finance, knowingly causing former FIOC not to
pay that debt and to pay finder’s-fee benefits wrongfully to Mrs.
Capital Finance also seeks damages from new FIOC for breach of contract and attorney’s fees, in addition
to alternative recovery in quantum meruit. In addition, Capital Finance asserts a successor-liability claim
against new FIOC, based on the merger agreement’s assignment to new FIOC of all of former FIOC’s
debts, liabilities, obligations, and duties.
2. Rule 120a Hearing and Ruling
Sinopec Overseas and Holder Representative filed special appearances to challenge personal jurisdiction.
15 After permitting extensive discovery, including depositions, and conducting an evidentiary hearing,16
the trial court sustained the special appearances and dismissed all of Capital Finance’s claims against
Sinopec Overseas and Holder Representative. The trial court did not issue findings of fact or conclusions
of law.
Special Appearance—Principles Pertinent to this Case
A. Personal Jurisdiction over Nonresident Defendant
A Texas court may assert personal jurisdiction over a nonresident defendant only if the requirements of
both the due process clause of the Fourteenth Amendment to the United States Constitution and the Texas
long-arm statute are satisfied. See U.S. CONST. amend. XIV, § 1; TEX. CIV. PRAC. & REM. CODE ANN. §
17.041–.045 (Vernon 1997 & Supp. 2007); CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig.
proceeding). A court’s exercise of personal jurisdiction over a party concerns the
14 Capital Finance asked the trial court to declare a “constructive trust” over escrowed funds for Capital
Finance’s benefit, “to the extent necessary to satisfy the Defendants’ liabilities to [Capital Finance],” and
also sought an injunction to prevent further disbursements to anyone but Capital Finance until its claims
were paid.
15 The case was initially removed to federal court, but was remanded.
16 See TEX. R. CIV. P. 120a(1), (3).
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 (Vernon 1997),17 and, among other acts, either
contracts with a Texas resident or commits a tort in Texas. Id. § 17.042(1)–(2); see PHC-Minden, L.P. v.
Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex. 2007) (stating that examples of “doing business” listed in
statute are not exclusive). Under the broad, “doing business” language of section 17.042, the supreme
court has ruled that the statute reaches “as far as the federal constitutional requirements of due process
will permit.” PHC-Minden, 235 S.W.3d at
166. Due process criteria compel that (1) the defendant must have established minimum contacts with
Texas, and (2) the assertion of jurisdiction comports with “traditional notions of fair play and substantial
justice.” Id. at 166.
1
.
Minimum Contacts Must Derive from Purposeful Availment
Texas may properly assert personal jurisdiction over a nonresident, consistent with the due process
safeguards of the United States Constitution, when the defendant’s minimum contacts with Texas are
purposeful. Xenos Yuen v. Fisher, 227 S.W.3d 193, 200 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An
act or acts “by which the defendant purposely avails itself of the privilege of conducting activities” in Texas
and
The statute lists three activities that constitute “doing business,” as follows: (1) contracting with a Texas
resident when either party is to perform the contract in whole or in part in Texas; (2) committing a tort in
whole or in part in Texas; and (3) recruiting Texas residents for employment inside or outside Texas. TEX.
CIV. PRAC. & REM. CODE ANN. § 17.042.
with Texas to confer personal jurisdiction. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,
784 (Tex. 2005) (emphasis in original) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228,
1240 (1958)).
The requirement of “purposeful availment” is the “touchstone of jurisdictional due process.” Id.; see IRA
Resources, Inc. v. Griego, 221 S.W.3d 592, 596–97 (Tex. 2007) (holding that defendant’s contacts with
Texas were not “purposeful,” but, rather, “random, isolated, or fortuitous”). Purposeful availment analysis
incorporates at least three important inquiries. IRA Resources, Inc., 221 S.W.3d at 596 (citing Michiana
Easy Livin’ Country, 168 S.W.3d at 785, and applying analysis). First, the only contacts that are material
are those of the targeted defendant, and no one else’s, id., which ensures that no defendant is brought
into Texas based solely on the unilateral activities of a third party. Michiana Easy Livin’ Country, 168 S.W.
3d at 785. Second, the acts of the defendant on which the plaintiff relies to assert jurisdiction must be
purposeful, which ensures that jurisdiction is not based solely on contacts that are “random, isolated, or
fortuitous.” Id.; see IRA Resources, Inc., 221 S.W.3d at 596. Third, a defendant “must seek some benefit,
advantage, or profit by ‘availing’ itself of the jurisdiction” and, thus, impliedly consent[ing] to its laws.” IRA
Resources, Inc., 221 S.W.3d at 596; see Michiana Easy Livin’ Country, 168 S.W.3d at 785.
Foreseeability of an injury in Texas is not solely determinative, Michiana Easy consideration” in deciding
whether a nonresident defendant has purposefully established minimum contacts. BMC Software, Belg., N.
V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
2. Contacts Imputed through Texas Domiciliary
In this case, Capital Finance claims that Sinopec Overseas and Holder Representative are guilty of both
fraud and conspiracy, having engineered the merger transaction in order to conceal or divert funds from
creditors of former FIOC. But bare assertions of fraud and conspiracy, without more, are neither material
nor relevant in assessing contacts to determine personal jurisdiction over a nonresident defendant. See
PHC-Minden, 235 S.W.3d at 174–75 (stating that fraud, though “vital” to underlying attempt to pierce
corporate veil, “has no place in assessing contacts to determine jurisdiction”) (citing Michiana Easy Livin’
Country, 168 S.W.3d at790–91, as rejecting principle that defendant’s directing a tort in Texas is relevant
inquiry for specific jurisdiction because theory improperly “equat[ed] the jurisdictional inquiry with the
underlying merits”) and Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995) (declining to
recognize personal jurisdiction based solely on allegations of conspiracy)). By alleging merely fraud and
conspiracy, therefore, Capital Finance did not state sufficient grounds to warrant exercise of personal
jurisdiction over Sinopec Overseas and Holder Representative.
jurisdiction over Sinopec Overseas and Holder Representative, Capital Finance had to rely on its
allegations that these entities committed fraud and conspiracy through other entities, specifically, former
FIOC’s equity holders and new FIOC.
Texas may properly exercise personal jurisdiction over a nonresident defendant company if its relationship
with a Texas-domiciled company establishes that they are one and the same, such that the Texas-
domiciled company’s “doing business” may be attributed to the nonresident company. See PHC-Minden,
235 S.W.3d at 172–76 (addressing “jurisdictional veil-piercing” as basis for assertion of personal
jurisdiction) (citing BMC Software Belg., N.V., 83 S.W.3d at 798–99; Commonwealth Gen. Corp.
v. York, 177 S.W.3d 923, 925 (Tex. 2005) (per curiam)); see also Tri-State Bldg. Specialities, Inc. v. NCI
Bldg. Sys, L.P., 184 S.W.3d 242, 250 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (relying on BMC
Software Belg., N.V., 83 W.3d at 798–99 and extending its holding to allegations against corporate officers).
In BMC Software Belgium, the claims of plaintiff Marchand depended in part on contentions that the Belgian
parent corporation was so essentially “fused” with the Texas-domiciled corporation that the Belgian parent
corporation was actually the Texas corporation’s alter ego, thus making exercise of personal jurisdiction
over the Belgian parent by a Texas court proper. See BMC Software Belg., N.V., 83 W.3d at 798–99. In IRA
Resources, Inc., the supreme court similarly concluded that allegations of defendant if accompanied by
proof of an agency relationship between the nonresident and a Texas resident. See IRA Resources, Inc.,
221 S.W.3d at 597 (holding that targeted nonresident defendant stood “outside” the transaction on which
plaintiff sought relief).
In this case, Capital Finance’s jurisdictional allegations against Sinopec Overseas state that Sinopec
Overseas was a mere sham and the alter ego of new FIOC in conspiring to defraud Capital Finance and
thus invoke the alter-ego theory of imputed contacts recognized in PHC-Minden, 235 S.W.3d at 174–75,
and BMC Software Belg., N.V., 83 S.W.3d at 799. The jurisdictional allegations against Holder
Representative, which state that Holder Representative acted as the agent for the former shareholders of
old FIOC in conspiring to defraud Capital Finance, invoke a theory of imputed contacts by agency. IRA
Resources, Inc., 221 S.W.3d at 597.
But the single-business enterprise allegations against Sinopec Overseas do not invoke a theory of imputed
contacts recognized by the Supreme Court of Texas. Though it recognized the alter-ego theory of imputed
contacts, in both PHC-Minden and BMC Software Belgium, and the agency theory of imputed contacts in
IRA Resources, the court has “never endorsed” the single-business enterprise theory of imputed contacts
alleged by Capital Finance against Sinopec Overseas. See PHC-Minden, 235 S.W.3d at 173–74 (stating
same and criticizing appellate court’s analysis (‘substantive veil-piercing’)” and “imputing one entity’s
contacts to another for jurisdictional purposes (‘jurisdictional veil-piercing’)”); see also S. Union Co. v. City
of Edinburg, 129 S.W.3d 74, 87 (Tex. 2003) (declining to decide “whether a theory of ‘single business
enterprise’ is a necessary addition to Texas law regarding the theory of alter ego for disregarding the
corporate structure”).
In BMC Software Belgium, Marchand’s allegations imputed the actions of one corporation to another; to
exercise personal jurisdiction over the Belgian parent would therefore require that the Texas trial court
disregard the legal distinctions between the parent and the Texas-domiciled businesses—and thus violate
the well-settled Texas presumption that separate corporations are distinct entities. See BMC Software
Belg., N.V., 83 S.W.3d at 798–99.
To conform the jurisdictional inquiry to the requirements of due process when, as here, a plaintiff alleges
imputed contacts by an alter-ego foreign defendant or a defendant-agent, the following factors define the
minimum-contacts analysis that will determine whether Texas may properly exercise personal jurisdiction
over that defendant:
To “fuse” the parent company and its subsidiary for jurisdictional purposes, the plaintiffs must prove the
parent controls the internal business operations and affairs of the subsidiary. But the degree of control the
parent exercises must be greater than that normally associated with common ownership and directorship;
the evidence must show that the two entities cease to be separate so that the corporate fiction should be
disregarded to prevent fraud or injustice.
3
.
PHC-Minden, 235 S.W.3d at 175 (quoting BMC Software Belg., N.V., 83 S.W.3d at 799).
Specific vs. General Jurisdiction
The defendant’s contacts with the Texas forum can give rise to either general jurisdiction or specific
jurisdiction. IRA Resources, Inc., 221 S.W.3d at 596; BMC Software, 83 S.W.3d at 795; Guardian Royal
Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex. 1991); Xenos Yuen, 227
S.W.3d at 200.
Specific jurisdiction arises when the claims in question arise from or relate to the defendant’s purposeful
contacts with Texas. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
Specific-jurisdiction analysis of minimum-contacts focuses on the relationship among the defendant, Texas,
and the litigation. IRA Resources, Inc., 221 S.W.3d at 596 (citing Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 575–56 (Tex. 2007) (in turn citing Guardian Royal Exchange, 815 S.W.2d at 228)).
In contrast, general jurisdiction is based “solely on the defendant’s “continuous and systematic” contacts
with Texas and is not defeated, therefore, when the plaintiff’s cause of action does not arise from or relate
to activities conducted within the forum. See PHC-Minden, 235 S.W.3d at 168–69 (citing Helicopteros
Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1868, 1873 (1984)). Because general
1
.
demanding” and requires a showing that the defendant conducted “substantial activities” in Texas. Id. at
168 (citing CSR Ltd., 925 S.W.2d at 595).
C. Standards and Scope of Review
Burdens of Proof—General Rule
In a suit against a nonresident defendant,18 the initial burden is on the plaintiff, in this case, Capital
Finance, to plead sufficient allegations to bring the defendant within the provisions of the Texas long-arm
statute. See BMC Software Belg., N.V., 83 S.W.3d at 793. The jurisdictional inquiry must yield to the
constitutional command that “‘exercise of personal jurisdiction must be fundamentally fair.’” PHC-Minden,
235 S.W.3d at 174 (quoting with approval, In re Baan Co. Sec. Litig., 245 F. Supp.2d 117, 129 (D.D.C.
2003)). The jurisdictional inquiry must, therefore, be separate and distinct from the underlying merits; a
court that equates the substantive merits with personal jurisdiction will violate the fairness considerations
that form the basis of due process mandates. See id., 235 S.W.3d at 174; Michiana Easy Livin’ Country,
168 S.W.3d at 790–91 (rejecting relevancy, for purposes of specific jurisdiction, of inquiry into defendant’s
directing a tort in Texas because theory improperly “equat[es]” jurisdictional inquiry with “underlying
merits”); Nat’l Indus. Sand Ass’n, 897 S.W.2d
The Long-Arm Statute defines a “nonresident” to include “an individual who is not a resident of [Texas]”
and “a foreign corporation, joint-stock company, association, or partnership.” TEX. CIV. PRAC. & REM.
CODE ANN. § 17.041 (Vernon 1997).
allegations of conspiracy). In reviewing Capital Finance’s jurisdictional allegations, therefore, we ask only
whether they are sufficient to invoke exercise of personal jurisdiction over Sinopec Overseas and Holder
Representative without regard to the merits. See PHC-Minden, 235 S.W.3d at 174.
When a plaintiff meets its pleading burden, the burden of proof ordinarily shifts to the nonresident
defendant, who must then negate all possible grounds for personal jurisdiction alleged by the plaintiff, see
Am. Type Culture Collection, Inc., 83 S.W.3d at 807, who must then present a “compelling case” that
exercise of jurisdiction would not be fair and just. See Glattly v. CMS Viron Corp., 177 S.W.3d 438, 450
(Tex. App.—Houston [1st Dist.] 2005, no pet.).
2. Burden of Proof—Exception for Imputed, or “Veil-Piercing” and Alter-Ego, Contacts
An exception to the general rule arises, however, when, as here, a plaintiff’s assertion of jurisdiction
depends on imputing the actions of a resident to a nonresident. In this case, Capital Finance claims that
Sinopec Overseas was created as “a sham to perpetrate a fraud” and acted as a single enterprise with new
FIOC or alter ego of new FIOC or both, by participating expressly and conspiratorially, in (1) paying
“unlawful benefits” to DeCamillis, (2) not paying Capital Finance, and (3) removing assets from the reach of
Capital Finance.
As noted, Texas may properly exercise personal jurisdiction over a nonresident residence, through
evidence showing that they are one and the same, such that the Texas-domiciled company’s “doing
business” may be attributed to the nonresident company. See PHC-Minden, 235 S.W.3d at 175 (stating
BMC Software Belgium test for imputed contacts); BMC Software Belg., N.V., 83 S.W.3d at 798–99;
Commonwealth Gen. Corp., 177 S.W.3d at 925; see also Tri-State Bldg. Specialities, Inc., 184 S.W.3d at
250 (relying on BMC Software Belg., N.V., 83 S.W.3d at 798–99, and applying its holding and rationale to
allegations against corporate officers).
Because two corporations are presumptively distinct and separate, the supreme court held in BMC
Software Belgium that, to disregard that “corporate fiction” and thus “fuse” the entities for purposes of
jurisdiction, the plaintiff had to prove his alter-ego claims at the special-appearance hearing, and further
held that Texas could not exercise personal jurisdiction over the nonresident Belgian parent corporation
unless Marchand met that burden of proof. Id.19 To prevail against the Belgian parent’s special
In imposing this burden of proof on a plaintiff at the special-appearance hearing and thus creating an
exception to the general rule that the burden of proof shifts to the defendant, the supreme court’s decision
in BMC Software Belgium followed precedents by the federal courts of Texas and our sister appellate
courts. See BMC Software Belg., N.V., 83 S.W.3d 789, 799 (Tex. 2002) (citing with approval Walker v.
Newgent, 583 F.2d 163, 167 (5th Cir. 1978), Gutierrez v. Raymond Int’l, Inc., 484 F. Supp. 241, 253 (S.D.
Tex. 1979), Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 419 (Tex. App.—Houston [14th
Dist.] 1997, no writ), and 3-D Elec. Co. v. Barnett Constr. Co., 706 S.W.2d 135, 139 (Tex. App.—Dallas
1986, writ ref’d n.r.e.)); see also Tri-State Bldg. Specialities, Inc. v. NCI Bldg. Sys, L.P., 184 S.W.3d 242,
250 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (noting that BMC Software Belgium created exception to
rule that burden of proof shifts to defendant challenging personal jurisdiction once plaintiff’s pleadings
allege sufficient jurisdictional facts for personal jurisdiction).
that exceeded the control “normally associated with common ownership and directorship,” by means of
evidence showing that “the two entities cease[d] to be separate,” which burden Marchand did not meet. Id.
at 798–99; see also PHC-Minden, 235 S.W.3d at 175 (quoting BMC Software Belgium “factors” controlling
assertions of imputed contacts, 83 S.W.3d at 799).
In Tri-State Building Specialties, this Court applied BMC Software Belgium principles and rejected a plaintiff’
s attempt to exercise personal jurisdiction over nonresident officers of an allegedly defunct corporation. Tri-
State Bldg. Specialities, Inc., 184 S.W.3d at 249–50. Recognizing that BMC Software Belgium’s underlying
rationale was “the presumption of separate identity between corporations,” 83 S.W.3d at 798, and that
fundamental Texas law likewise presumes that officers and shareholders of a corporation have legally
separate identities that normally insulate against potential liability for corporate acts, this Court logically
extended the BMC Software Belgium burden of proof to the Tri-State plaintiff’s jurisdictional allegations. Tri-
State Bldg. Specialities, Inc., 184 S.W.3d at 250; see also Wolf v. Summers-Wood, L.P., 214 S.W.3d 783,
788 (Tex. App.—Dallas 2007, no pet.) (applying BMC Software Belgium burden to plaintiff claiming
“corporate fiction or sham,” also citing Tri-State Bldg. Specialities, Inc., 184 S.W.3d at 250).
Settled law always presumes that corporations exist as separate entities, and that fairness considerations
emphasized most recently in PHC Minden warrant imposing the burden of proof on the plaintiff to set aside
those presumptions before Texas courts may properly exercise personal jurisdiction in conformity with the
requirements of due process. PHC Minden, 235 S.W.3d at 174–75; Tri-State Bldg. Specialities, Inc., 184 S.
W.3d at 250. In accordance with Commonwealth General, BMC Software Belgium, and our own precedent
in Tri-State Building Specialities, therefore, we hold that Capital Finance had the burden to prove its
allegations that Sinopec Overseas acted as alter ego of new FIOC.
3. Burden of Proof—Exception for Contacts Imputed based on Agency
As against Holder Representative, Capital Finance’s conspiracy and fraudulent transfer claims allege that
Holder Representative acted as agent for former FIOC’s equity holders with the express, additional
purpose of assisting to remove assets beyond the reach of Capital Finance. Much like the prohibition that
bars a Texas court from disregarding the corporate presumption, well-settled law compels that Texas
courts never presume that an alleged agency relationship exists. See IRA Resources, Inc., 221 S.W.3d at
597 (citing Buchoz v. Klein, 184 S.W.2d 271, 271 (Tex. 1944)). Just as the trial court here would have to
disregard the settled presumption that corporate entities are distinct and separate in order to credit Capital
Finance’s alter-ego allegations, as addressed above, the trial court would have to indulge a prohibited
jurisdiction based on Capital Finance’s allegations that Holder Representative acted as agent for former
FIOC’s equity holders when it committed what Capital Finance contends is fraud and conspiracy. See
Buchoz, 184 S.W.2d at 271; see also Meader v. IRA Res., Inc., 178 S.W.3d 338, 345–46 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (noting that “the law . . . does not presume agency,” in upholding
implied finding by trial court that Texas resident was not nonresident’s agent for purposes of personal
jurisdiction).20
Crediting the plaintiff’s alter-ego claims in PHC-Minden and BMC Software Belgium, and the corporate-
officer liability claims in Tri-State Building Specialities, without supporting proof and for purposes of
personal jurisdiction, would have improperly shifted the jurisdictional inquiry to the underlying merits of the
case, in violation of due process. See PHC-Minden, 235 S.W.3d at 174. The legal presumptions and due
process concerns that underscore PHC-Minden, BMC Software, and Tri-State Building Specialities apply
with equal force and logic to Capital Finance’s allegations that impute agency-based contacts in support of
exercise of personal jurisdiction over Holder Representative. To credit Capital Finance’s agency-premised
allegations would violate due process by diverting the trial court’s
The supreme court granted review in IRA Resources, Inc. v. Griego, 221 S.W.3d 596 (Tex. 2007), because
the holding of the court of appeals contradicted Meader v. IRA Resources, Inc., 178 S.W.3d 338, 345–46
(Tex. App.—Houston [14th Dist.] 2005, no pet.). See IRA Resources, Inc., 221 S.W.3d at 594.
and would also have required the trial court to set aside the well-settled prohibition against presuming that
an agency relationship exists. See IRA Resources, Inc., 221 S.W.3d at 597; Meader, 178 S.W.3d at 338,
345–46.
The settled law that never presumes that an agency relationship exists, as well as the due process
considerations emphasized in PHC Minden, 235 S.W.3d at 174–75, compel that the plaintiff bear the
burden to prove that an agency relationship exists. Imposing that burden on the plaintiff ensures that Texas
courts exercise personal jurisdiction in conformity with the requirements of due process. IRA Resources,
Inc., 221 S.W.3d at 597. In accordance with IRA Resources, we therefore hold that Capital Finance also
had the burden to prove the agency theory of imputed contacts alleged in its live pleadings, i.e., that
Holder Representative acted as agent for former FIOC’s equity holders in conspiring to defraud Capital
Finance in order that the trial court might properly assert personal jurisdiction over Holder Representative.
3. Review of Trial Court’s Ruling and Implied Findings
Whether a court has personal jurisdiction over a defendant is a question of law subject to de novo review.
Id., 221 S.W.3d at 595 (citing BMC Software Belg., N.V., 83 S.W.3d at 794); Xenos Yuen, 227 S.W.3d at
201. Though inquiring into the merits would violate due process, see PHC-Minden, 235 S.W.3d at 174, a
trial court must frequently resolve preliminary questions of fact to determine the jurisdictional When, as
here, the trial court issues no findings of fact and conclusions of law
in support of its rule 120a ruling, we must infer “all facts necessary to support the
judgment,” on condition that they are raised by the pleadings and have support in the
record of the special-appearance hearing. See id. at 795; Xenos Yuen, 227 S.W.3d at
201; Tri-State Bldg. Specialties, Inc., 184 S.W.3d at 246 (citing Am. Type Culture
Collection, Inc., 83 S.W.3d at 806) (stating that reviewing court should presume that
trial court resolved all factual disputes in favor of its judgment if trial court issues no
findings of fact).
We consider only the evidence that favors the trial court’s decision in addressing
evidentiary challenges when the trial court issues no findings of fact or conclusions of
law, and we may sustain the ruling on any reasonable theory that is consistent with the
evidence and the applicable law. 21 See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
We note that Sinopec Overseas has objected, on appeal, to Capital Finance’s reliance on certain evidence
presented to the trial court during the special-appearance hearing, on the grounds that the trial court
sustained objections to that evidence in the course of the hearing. Yet, the order sustaining the special
appearances refers to the evidentiary objections presented by all parties and then specifies that the court
“overrule[d] all of the objections” and sustained the special appearances after considering “the special-
appearance briefing, the evidence submitted, the pleadings, the arguments of counsel and the applicable
law.” (Emphasis added.) A judgment or order that is rendered in writing and signed by the trial judge
becomes the official judgment of the court. Harrington v. Harrington, 742 S.W.2d 722, 724 (Tex. App.—
Houston [1st Dist.] 1987, no writ). Recitals in a judgment or signed order of the court thus control over
conflicting recitals in the record. See Hamilton v. Empire Gas & Fuel Co., 110 S.W.2d 561, 566 (Tex. 1937)
(“[D]ocket entries, . . . affidavits, and other like evidence, can neither change nor enlarge judgments or
orders as entered in the minutes of the court.”); In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 914
n.3 (Tex.
610 S.W.2d 735, 736 (Tex. 1980); cf. Whaley v. Cent. Church of Christ, 227 S.W.3d 228, 231 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (holding that appealing party must demonstrate that trial court’s judgment
cannot be sustained on any theory raised by the evidence). Though implied in support of the judgment, the
trial court’s findings are not conclusive when, as here, the appellate record includes both the reporter’s and
clerk’s records, and the sufficiency of the evidence may be challenged on appeal. BMC Software, 83 S.W.
3d at 795.22
Special Appearance—Application of Principles to This Case
A. Trial Court’s Ruling and Implied, Supporting Findings
The trial court’s order sustaining the special appearances of Sinopec Overseas and Holder Representative
grants only that requested relief and thus sheds no light on the trial court’s reasoning. Pursuant to the
recent supreme-court authority addressed above, however, the burden of proof remained with Capital
Finance to prove the
App.—Dallas 2006, orig. proceeding) (holding that written order controlled over conflicting oral
pronouncement); Harrington, 742 S.W.2d at 742 (resolving conflict between judgment and docket entry in
favor of judgment). Because the trial court’s order expressly overruled all parties’ objections, we consider
all evidence submitted to the trial in addressing Capital Finance’s issues on appeal.
The standard of review compels that we view only the evidence that favors the trial court’s judgment when
there are no findings of fact, and the record contains the reporter’s record, as her. E.g., Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Accordingly, our review does not encompass a factual-
sufficiency challenge, which requires that we consider all the evidence before the trial court. See Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951).
contentions that Texas could properly exercise personal jurisdiction over Sinopec Overseas and Holder
Representative to address Capital Finance’s fraud and conspiracy
claims.23
The alter-ego theory permits a plaintiff to disregard the corporate fiction when a corporation is organized
and operated as a mere tool or business conduit of another corporation,” Castleberry v. Branscum, 721 S.
W.2d 270, 272 (Tex. 1986), and proof of imputed contacts based on this theory may serve as a basis for
exercise of jurisdiction over a nonresident. See PHC-Minden, 235 S.W.3d at 172–76. Alter ego is generally
resolved by the trier of fact, in this case, the trial court at the special-appearance hearing. See Castleberry,
721 S.W.2d at 277. An agency-based theory of imputed contacts may also serve as a basis for exercise of
personal jurisdiction over a foreign defendant on proper proof. See IRA Resources, Inc., 221 S.W.3d at
597. Like alter ego, agency involves resolution of issues of fact. See Novamerican Steel, Inc. v. Delta
Brands, Inc., 231 S.W.3d 499, 511 (Tex. App.—Dallas 2007, no pet.). The essential feature of agency is
the right of control. Id. (citing Schott Glas v. Adame, 178 S.W.3d 307, 315 (Tex. App.—Houston [14th Dist.]
2005, pet. denied) (rejecting
We decline to address Capital Finance’s assertions of single-business enterprise because the supreme
court has not recognized this as a valid theory of imputed contacts for purposes of a trial court’s exercise of
jurisdiction. See PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 173–74 (Tex. 2007). Because
the supreme court has never recognized the successor-liability theory of imputed contacts asserted by
Capital Finance, see id., we may infer that the trial court rejected that theory as a matter of law on that
basis.
details of resident sales representative’s sales)).
1. Sinopec Overseas: Impliedly Found not Alter Ego of new FIOC
Because the trial court sustained the special appearance of Sinopec Overseas, we may infer adverse
findings by the trial court that Capital Finance did not meet its burden to prove its allegations that Sinopec
Overseas acted as new FIOC’s alter ego and was subject to personal jurisdiction in Texas for that reason.
See Am. Type Culture Collection, 83 S.W.3d at 806; Tri-State Bldg. Specialities, Inc., 184 S.W.3d at 246.
Stated otherwise, the trial court impliedly found no alter-ego relationship between Sinopec Overseas and
new FIOC. Given Capital Finance’s alter-ego pleadings against Sinopec Overseas and the governing law,
the trial court’s adverse finding is reasonable. See Worford, 801 S.W.2d at 109; Whaley, 227 S.W.3d at
231.
2. Holder Representative: Impliedly Found not Agent for Former FIOC Equity Holders
Because the trial court sustained the special appearance of Holder Representative, we may infer adverse
findings by the trial court that Capital Finance did not meet its burden to prove its allegations that Holder
Representative acted as agent for the former FIOC equity holders and was subject to personal jurisdiction
in Texas for that reason. See IRA Resources, Inc., 221 S.W.3d at 597. Stated otherwise, the trial court
impliedly found that Holder Representative did not act as agent for the former FIOC equity holders. Given
Capital Finance’s agency pleadings against Holder See Worford, 801 S.W.2d at 109; Whaley, 227 S.W.3d
at 231.
B. Whether the Record Supports the Trial Court’s Implied, Adverse Findings
We next consider whether the record supports the implied findings that we have attributed to the trial court
in support of its having sustained the special appearances of Sinopec Overseas and Holder
Representative. See Worford, 801 S.W.2d at 109; Lemons, 747 S.W.2d at 373; Burnett, 610 S.W.2d at
736. The dispositive inquiry is whether the trial court’s implied findings are consistent with the evidence and
the applicable law. Worford, 801 S.W.2d at 109; Lemons, 747 S.W.2d at 373; Burnett, 610 S.W.2d at 736.
Accordingly, we determine whether Capital Finance has demonstrated on appeal that the trial court’s order
sustaining the special appearances cannot be sustained on any theory raised by the evidence. See
Whaley, 227 S.W.3d at 231.
1. Imputed-Contacts Allegations against Both Sinopec Overseas and Holder Representative
Capital Finance’s claims of conspiracy and fraud by Sinopec Overseas and Holder Representative, and its
claims that Texas may properly exercise personal jurisdiction to address those claims, depend on
allegations that these companies structured the merger transaction in order to conceal or divert funds from
creditors of former FIOC. On appeal, Capital Finance summarizes its contentions by contending that the
record establishes that both companies acted as “single purpose shells” and had “joint control” over the
undistributed proceeds in the escrow fund. Capital Finance like Capital Finance’s claim for its unpaid finder’
s fee commission, and that Sinopec and Holder Representative had joint control over the undistributed
proceeds of the merger transaction because both signed the escrow agreement. On reviewing the record
in the mandatory light that supports the trial court’s ruling, see Worford, 801 S.W.2d at 109, we conclude
that Capital Finance’s contentions have no support in the record.
Capital Finance subpoenaed the only witnesses who testified at the special-appearance hearing. The first
witness was Charles Wilson, a mergers-and-acquisitions attorney and a former partner with the Houston
office of Vinson & Elkins, L.L.P. Wilson was hired by SIPC, which is not a party to this lawsuit, for advice
regarding negotiations for the acquisition of former FIOC and the due-diligence investigations relating to
the transaction. Wilson acknowledged that his work may have benefitted Sinopec Overseas, the named
purchaser in the merger agreement, but confirmed that he was hired by SIPC and worked only for SIPC.
Under direct examination by Capital Finance, Wilson testified that the procedures conducted and the
documents generated were those normally associated with mergers-and-acquisitions practice, that no one
from Sinopec Overseas had ever traveled to Texas before or in connection with the merger transaction,
and that the purchase and escrow funds were wired directly to Citibank in New York City without
Under cross-examination by counsel for Sinopec Overseas, Wilson stated that his law firm did not form
either the Bermuda-based Sinopec Overseas or the Delaware-based new FIOC, and that he had never
conversed with anyone about delaying, hindering, or defrauding the creditors of former FIOC. Wilson
reaffirmed that new FIOC acquired the assets and liabilities of former FIOC; that Sinopec Overseas
acquired no assets or liabilities of former FIOC, which were assumed by new FIOC; and that former FIOC’s
assets and liabilities did not merely “pass through” Sinopec Overseas to new FIOC.
Regarding the escrow agreement, which he drafted, Wilson denied “specifically earmark[ing]” funds for the
benefit of Capital Finance and denied having any discussions regarding hiding, delaying, hindering and
defrauding any creditors of former FIOC. Wilson also confirmed that he was not aware of Capital Finance’s
agreement with former FIOC until after Capital Finance asserted the claim that led to this litigation.
Relevant to Capital Finance’s contention that both Sinopec Overseas and Holder Representative had
control over undistributed proceeds in the escrow fund, Wilson agreed that a purpose of the escrow
agreement was to cover undisclosed liabilities of former FIOC. As the agreement confirms, however, the
liabilities contemplated were future, and therefore undisclosed, breaches of former FIOC’s warranties
stated in the of former FIOC, and thus a retained liability to be allocated to and assumed by the entity that
was ultimately known as new FIOC, in accordance with provisions of the merger agreement. Capital
Finance acknowledges that new FIOC assumed such liabilities under the merger agreement, having relied
on those terms in its successor liability claims against new FIOC. The documentary evidence and the
testimony further confirm that an additional purpose of the escrow was to provide for as-yetunpaid cash
payments to equity holders of former FIOC, whose interests Holder Representative was created to protect.
Regarding the finder’s fee commission, we note that any fee due to Capital Finance was contingent on
completion of the merger transaction, and that a finder’s commission was actually paid, though not to
Capital Finance. Furthermore, with the exception of Capital Finance’s letter agreement with former FIOC,
testimony at the hearing and the documentary evidence refer only to a finder’s fee commission due and
ultimately paid to Mrs. DeCamillis.
William K. Bosche, the chief financial officer of former FIOC, also testified at the rule 120a hearing. Bosche
worked as a consultant to new FIOC after the merger. Though he testified extensively concerning
negotiations of the merger transaction, nothing in Bosche’s testimony shows or suggests that he had a
working relationship with either Sinopec Overseas or Holder Representative after he began working as a to
either new FIOC, to the largest extent, or from SIPC or SIPC affiliates, to a lesser extent, but not from
Sinopec Overseas. Though Sinopec Overseas was formed before the actual merger transaction, Bosche
denied that he had ever met with any Sinopec Overseas representatives in Houston before the transaction,
that any assets of former FIOC were transferred out of Texas after the merger, and that any directors of
former FIOC became directors of new FIOC. Bosche conceded some knowledge that Holder
Representative planned to contest an earlier tax return, but clarified that the contest would relate to taxes
paid in 2003, before the merger, and therefore would have some bearing on the amount of funds available
in the escrow account that Holder Representative held to safeguard the interests of unpaid equity holders
of former FIOC.
Testimony by former FIOC’s accountant established that he prepared tax returns for former FIOC and then
took on an assignment for Holder Representative after it was formed. As part of that assignment, the
accountant reviewed former FIOC’s 2003 tax returns and, later, its 2004 tax returns. This was the extent of
his responsibility, on which he spent about 15 hours. The accountant conferred with Bosche, but denied
any contact with Holder Representative’s tax lawyer. Both the accountant and the former corporate
secretary for former FIOC, whom Capital Finance also summoned to testify, denied ever doing any work for
Sinopec Overseas.
Our review of the record of the special appearance hearing and the documentary and Holder
Representative had joint control over the undistributed proceeds of the merger transaction, to the extent
necessary to support Capital Finance’s imputed-contacts allegations, despite those entities’ having signed
the escrow agreement.
It is undisputed that the escrow agreement arose from the merger agreement and the MOU, and that
neither of these documents accords joint control over the undistributed proceeds to Sinopec Overseas and
Holder Representative to the extent necessary to support Capital Finance’s imputed-contacts allegations of
alter ego and agency. In addition, the merger and escrow agreements strictly limit these parties’ access to
the escrow funds to (1) breaches of former FIOC’s warranties stated in the merger agreement, in the case
of Sinopec Overseas; and(2) claims by equity holders of former FIOC, in the case of Holder Representative.
We turn next to Capital Finance’s individual allegations against Sinopec Overseas and Holder
Representative.
2. Sinopec Overseas as Alter Ego of New FIOC
To warrant exercise of personal jurisdiction over Sinopec Overseas, Capital Finance had to prove its
imputed-contacts allegation that Sinopec Overseas was new FIOC’s alter ego—despite new FIOC’s not
having come into existence until after the merger agreement was signed, and thus over three months after
Sinopec Overseas was formed.
alleged status of Sinopec Overseas as the purchaser of former FIOC and alleged employer of accountants
and lawyers in Texas, who necessarily benefitted Sinopec Overseas in the documents they drafted or
reviewed. It is undisputed that Sinopec Overseas is the “buyer” contemplated by the MOU and identified by
the merger agreement, and that it was formed shortly after the MOU. But, no witness presented by Capital
Finance at the rule 120a hearing attested to a relationship with Sinopec Overseas. When questioned,
moreover, the witnesses denied ever having a relationship with, taking direction from, or reporting to,
Sinopec Overseas.
The responses of Bosche, former FIOC’s chief financial officer, to questioning by Capital Finance
concerning new FIOC’s involvement with Sinopec Overseas have particular importance. Bosche worked as
a consultant to new FIOC, which, Capital Finance contends, had an alter-ego relationship with Sinopec
Overseas. In response to vigorous, repeated questioning, however, Bosche insisted that, in exercising his
responsibilities as consultant to new FIOC, he took direction mostly from new FIOC, and, to a lesser extent,
or from SIPC or SIPC affiliates, but not from Sinopec Overseas.
As further support of its contention that Sinopec Overseas “controlled” the escrow account, Capital
Finance points out that (1) the escrow agreement gives Sinopec Overseas “the right to disbursements”
from escrow funds for excess transaction costs, which include finder’s and broker’s fees, and that (2)
Sinopec representations made by former FIOC in the merger agreement. With respect to the second point,
Capital Finance notes specifically that the merger agreement includes a representation that “no broker,
finder, or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection
with the transactions contemplated” by the merger, except as disclosed in the merger agreement, and that
the merger agreement disclosed a finder’s-fee commission due to Mrs. DeCamillis and Moyes & Company
and provided copies of the agreements pertaining to those finder’s fees.
But Capital Finance does not explain how the “right to general disbursements” of Sinopec Overseas
described in the escrow agreements, constitutes proof that Sinopec Overseas was “fused with” new FIOC
and was, therefore, its alter ego, thus justifying exercise of personal jurisdiction under minimum-contacts
analysis. See PHC-Minden, 235 S.W.3d at 175. None of the terms on which Capital Finance relies
demonstrates that Sinopec Overseas controlled the “internal business operations and affairs” of new FIOC,
to the extent that Sinopec Overseas and new FIOC “cease[d] to be separate,” so that the “corporate
fiction” might properly “be disregarded.” Id. (quoting BMC Software Belg., N.V., 83 S.W.3d at 799).
Finally, that Sinopec Overseas owns one-hundred percent of the stock of its subsidiary, new FIOC, and
that the companies may share officers is likewise not (“‘[A] subsidiary corporation will not be regarded as
the alter ego of its parent merely because of stock ownership, a duplication of some or all of the directors
or officers, or an exercise of the control that stock ownership gives to stockholders.’”) (quoting Gentry v.
Credit Plan Corp, 528 S.W.2d 571, 573 (Tex. 1975)).
Like the plaintiffs in PHC-Minden, BMC Software Belgium, and Tri-State Building Specialities, Capital
Finance did not meet its burden here to substantiate its alter-ego and imputed-liability allegations by
demonstrating that (1) Sinopec Overseas “controlled the internal business operations and affairs” of new
FIOC to the degree that Sinopec Overseas was new FIOC’s alter ego, and (2) the entities ceased to be
separate, despite their corporate status, and were therefore “fused,” so that the trial court could properly
disregard their separate corporate entities for purposes of exercising personal jurisdiction over Sinopec
Overseas. See PHC-Minden, 235 S.W.3d at 175; BMC Software Belg., N.V., 83 S.W.3d at 799; Tri-State
Bldg Specialities, Inc., 184 S.W.3d at 250.
Because the record of this case amply supports the trial court’s implied refusal to find that Sinopec
Overseas and new FIOC disregarded their separate corporate structures, the trial court properly rejected
Capital Finance’s attempt to exercise personal jurisdiction over Sinopec Overseas on the grounds that it
was new FIOC’s alter ego. Crediting Capital Finance’s alter-ego allegations for purposes of exercising
fairness considerations that underscore due process mandates, which preclude resorting to the
substantive merits, but would also violate settled law that preserves the presumption of separate corporate
identity. See PHC-Minden, 235 S.W.3d at 174. There is no showing of purposeful contact by Sinopec
Overseas that exceeds randomness, isolatedness, or fortuity and that demonstrates implied consent to
Texas law. See IRA Resources, Inc., 221 S.W.3d at 596–97. Accordingly, Capital Finance has not
established that “touchstone” requirement of minimum contacts—purposeful availment—by Sinopec
Overseas with Texas. See Michiana Easy Livin’ Country, 168 S.W.3d at 784; IRA Resources, Inc., 221 S.W.
3d at 596–97.
Because Capital Finance failed its burden to demonstrate an alter-ego relationship between Sinopec
Overseas and new FIOC, and has thus failed to establish purposeful availment, we hold that Capital
Finance has failed to demonstrate, for purposes of imputed contacts to support exercise of specific
jurisdiction over Sinopec Overseas, the requisite relationship among Sinopec Overseas, Texas, and
Capital Finance’s claims that it was entitled to a finder’s fee commission based on its agreement with former
FIOC. See IRA Resources, Inc., 221 S.W.3d at 596; Moki Mac River Expeditions, 221 S.W.3d at 575–76.
Accordingly, we overrule Capital Finance’s first issue.
Because Capital Finance failed its burden to demonstrate an alter-ego purposeful availment, Capital
Finance has likewise failed to demonstrate the more rigorous showing that Sinopec Overseas conducted
“substantial activities” demonstrating its “continuous and systematic” contacts with Texas, for purposes of
imputed contacts to support exercise of general jurisdiction. See PHC-Minden, 235 S.W.3d at 168–69.
Accordingly, we overrule Capital Finance’s issue four.
3. Holder Representative as Agent for Former FIOC Equity Holders
To warrant exercise of personal jurisdiction over Holder Representative, Capital Finance had to prove its
imputed-contacts allegations that Holder Representative acted as agent for the equity shareholders of
former FIOC with the express purpose of assisting to move otherwise recoverable assets beyond the reach
of Capital Finance.
Before analyzing Capital Finance’s imputed-contacts allegations, however, we address a preliminary
response by Holder Representative to Capital Finance’s contentions on appeal. Holder Representative
emphasizes that it was not a party to the merger transaction, and that it came into existence only after the
merger.24 In reply, Capital Finance protests that Holder Representative was a “party to the sale” because
the merger agreement required that Holder Representative execute the escrow agreement, which is
essential to the merger agreement. Despite Holder
It is undisputed that Holder Representative was formed after the merger agreement was signed and that it
was formed solely to represent the interests of “former FIOC stockholders, option holders, and warrant
holders” in funds to be held in the escrow account contemplated by the MOU.
Representative accepted the benefits of preformation acts performed on its behalf by its agents,
specifically, the “officers and representatives of [former] FIOC” and, therefore, ratified their actions.
We agree with Holder Representative that Capital Finance has never alleged that officers and
representatives of former FIOC acted on behalf of Holder Representative, or that Holder Representative
ratified their actions. Capital Finance’s live pleadings allege that Holder Representative acted as agent for
former FIOC’s equity holders; Capital Finance has never alleged that others acted as agents for Holder
Representative. See Am. Type Culture Collection, Inc., 83 S.W.3d at 807 (stating that defendant has
burden on special appearance to negate all possible grounds for personal jurisdiction alleged by plaintiff).
Moreover, a preformation agency relationship is not an appropriate basis on which to premise personal
jurisdiction over a foreign nonresident corporation. See Maurice Pierce & Assoc., Inc. v. Computerage, Inc.,
608 F. Supp. 173, 176 (N.D. Tex. 1985).
We have previously addressed and rejected Capital Finance’s chief contention regarding Holder
Representative, specifically, that both Holder Representative and Sinopec Overseas had joint control over
the escrow fund and “the power” to make the distribution that Capital Finance seeks as compensation.
Analysis of Capital Finance’s imputed-contacts allegations—that Holder holders to remove otherwise
recoverable assets beyond the reach of Capital Finance—must begin with the date when it was formed,
March 24, 2004, and thus after the merger agreement. Capital Finance alleges that Holder Representative
was created “as a sham to perpetrate a fraud,” but did not explain or provide any evidence to the trial court
to explain how an entity that was not formed until after the merger agreement could act before that date as
an agent for former FIOC’s equity shareholders to accomplish a purpose that is at odds with the terms of
the merger agreement approved by those same shareholders. It is undisputed that Holder Representative
was formed to hold sale proceeds “for the benefit of former FIOC’s shareholders.” But those funds are
reserved for any unpaid claims they may have. Claims for liabilities incurred by former FIOC were assumed
by new FIOC, as Capital Finance acknowledges in its pleadings—by seeking recovery from new FIOC as
former FIOC’s successor.
Capital Finance’s allegations that Holder Representative was a sham and the actual agent of former FIOC’s
shareholders in perpetrating a fraud, without more, do not permit a finding that Holder Representative was
their agent, see PHC-Minden, 235 S.W.3d at 174, and agency is never presumed. IRA Resources, Inc.,
221 S.W.3d at 597. Holder Representative is a Delaware corporation with headquarters in New York City,
which is also the location of the escrow account. To warrant exercise of personal jurisdiction over Holder
Representative, Capital Finance had to demonstrate that agent, to a degree sufficient to demonstrate that
Holder Representative had minimum contacts with Texas and, thus, purposefully availed itself of the Texas
forum. See id.; Schott Glas, 178 S.W.3d at 315.
Reviewing the record in the requisite light reveals nothing that supports Capital Finance’s imputed-contacts
theory that Holder Representative served as the agent of the former FIOC shareholders in order to
perpetrate a fraud, in the face of the limits imposed by the merger and escrow agreements on Holder
Representative’s role. Capital Finance offered no evidence in the trial court that Holder Representative had
ever deviated from its limited role as the protector of the interests of former FIOC’s equity shareholders in
the proceeds of the merger transaction.
The record of this case amply supports the trial court’s implied refusal to find that Holder Representative
acted as agent for the shareholders of former FIOC to defraud Capital Finance. Accordingly, the trial court
properly rejected Capital Finance’s attempt to exercise personal jurisdiction over Holder Representative on
that basis. grounds that it was former FIOC’s shareholders’ agent. To credit Capital Finance’s agency
allegations for purposes of exercising personal jurisdiction over Holder Representative on this record would
not only violate the fairness considerations that underscore due process mandates, by impermissibly
resorting to the substantive merits, but would also violate settled law that bars presuming that an agency
There is no showing of purposeful contact by Holder Representative that exceeds randomness,
isolatedness, or fortuity and that demonstrates implied consent to Texas law. Id. at 596–97. Accordingly,
Capital Finance has not established the “touchstone” requirement of minimum contacts—purposeful
availment—with the Texas forum, for purposes of exercise of personal jurisdiction over Holder
Representative. See Michiana Easy Livin’ Country, 168 S.W.3d at 784; IRA Resources, Inc., 221 S.W.3d at
596–97.
Because Capital Finance failed its burden to demonstrate an agency relationship between Holder
Representative and former FIOC’s shareholders, and has thus failed to establish purposeful availment, we
hold that Capital Finance has failed to demonstrate, for purposes of imputed contacts to support exercise
of specific jurisdiction over Holder Representative, the requisite relationship among Holder Representative,
Texas, and Capital Finance’s claims that it was entitled to a finder’s fee commission based on its
agreement with former FIOC. See IRA Resources, Inc., 221 S.W.3d at 596; Moki Mac River Expeditions,
221 S.W.3d at 575–56. Accordingly, we overrule Capital Finance’s second issue.
Having failed its burden to demonstrate an agency relationship between Holder Representative and the
shareholders of former FIOC and having thus failed to establish purposeful availment, Capital Finance has
likewise failed to demonstrate the more rigorous showing that Holder Representative conducted
“substantial activities” demonstrating its “continuous and systematic” contacts with Texas, as required to
support exercise of general jurisdiction. See PHC-Minden, 235 S.W.3d at 168–69. Accordingly, we overrule
Capital Finance’s third issue.
Conclusion
We affirm the trial court’s order sustaining the special appearances filed by Sinopec Overseas and Holder
Representative.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Hanks and Higley.