                                                                                      ACCEPTED
                                                                                   01-14-00703-cv
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            7/14/2015 11:55:35 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK



                    NO. 01-14-00703-CV
 _______________________________________________________
                                                  FILED IN
                                             1st COURT OF APPEALS
           IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
         FIRST DISTRICT OF TEXAS AT HOUSTON  7/14/2015 11:55:35 PM
                                             CHRISTOPHER A. PRINE
 _______________________________________________________
                                                      Clerk

                      CHRISTOPH HENKEL
                                                         Appellant

                                  v.

   EMJO INVESTMENTS, LTD. and H.J. VON DER GOLTZ
                                             Appellees
 _______________________________________________________

On appeal from the 215th Judicial District Court, Harris County, Texas
             The Honorable Elaine H. Palmer, presiding
                      Cause No. 2011-44058
 _______________________________________________________

         SUPPLEMENTAL BRIEF OF APPELLEES
 _______________________________________________________

                                       Kelley M. Keller
                                       State Bar No. 11198240
                                       Tracey N. Ellison
                                       State Bar No. 15054720
                                       5120 Woodway, Suite 6019
                                       Houston, Texas 77056
                                       Telephone: 713-266-8200
                                       Facsimile: 713-266-8201
                                       kkeller@ellison-keller.com

                                       Attorneys for Appellees

 _______________________________________________________


                                                       July 14, 2015
                                       TABLE OF CONTENTS

TABLE OF CONTENTS ...........................................................................................i

TABLE OF AUTHORITIES.....................................................................................ii

I.      Moncrief Supports the Exercise of Personal Jurisdiction Over Henkel ..........1

II.     Intervenors’ Pleadings Support a Finding
        in Favor of Personal Jurisdiction.....................................................................9

        A.      The Intervenors’ Petition in Intervention and Briefing
                Establish the Relationship Between Henkel’s Texas Contacts
                and the Pending Claims. .........................................................................4

        B.      Henkel Defines the Pending fraud Claims Too Narrowly ....................12

        C.      As an Alleged Co-Conspirator, Henkel is Potentially Liable
                for All Actions in Pursuit of the Conspiracy,
                Regardless of When They Occurred .....................................................14

III.    The Intervenors’ Investments .......................................................................15

CONCLUSION .......................................................................................................15




                                                         i
                                   TABLE OF AUTHORITIES


Cases

AmQuip Corp. v. Cloud,
 73 S.W.3d 380 (Tex. App.—Houston [1st Dist.] 2002, no pet.)............................8

Blubonnet Petroleum, Inc. v. Kolkhorst Petroleum Co., Inc.,
  No. 14-07-00380-CV, 2008 Tex. App. LEXIS 7724
  (Tex. App.--Houston [14 th Dist.] Oct. 9, 2008, pet. denied) ............................7, 8

City of Keller v. Wilson,
 168 S.W.3d 802 (Tex. 2005) ..................................................................................9

Ennis v. Loiseau,
 164 S.W.3d 698 (Tex. App.—Austin 2005, no pet. .........................................9, 10

Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56 (Tex. Civ. App.—
 Houston [14th Dist.] 2004, no pet.)......................................................................14

Hale v. Richey, No. 10-11-00187-CV,
 2012 Tex. App. LEXIS 261 (Tex. App.—Waco Jan. 11, 2012, no pet.) .............10

Hancock v. Variyam,
 400 S.W.3d 59 (Tex. 2013) ....................................................................................9

Moncrief Oil International, Inc. v. OAL Gazprom,
 414 S.W.3d 142 (Tex. 2013) .........................................................................passim

Michiana Easy Livin' Country, Inc. v. Holten,
 168 S.W.3d 777 (Tex. 2005) ..................................................................................2

Pulmosan Safety Equip. Corp.,
 273 S.W.3d 829 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)...............17

Retamco Operating, Inc. v. Repuglic Drilling Co.,
 278 S.W.3d 333 (Tex. 2009) ..................................................................................6

Sacks v. Hall,
  No. 01-13-00531-CV, Tex. App.--Houston [1st Dist.] Nov. 20, 2014, no pet.) ....9



                                                       ii
Service Corp. International v. Guerra,
  348 S.W.3d 221 (Tex. 2010) ..................................................................................9

Wikert v. Year One, Inc.,
 320 S.W.3d 522 (Tex. App.—Dallas 2010, no pet.) ..............................................9




                                                      iii
TO THE HONORABLE FIRST COURT OF APPEALS:

       At the conclusion of oral argument, the panel requested that Appellant

address Moncrief Oil International, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex.

2013), in a supplemental submission to the Court and requested that Appellees

identify for the Court the dates of the investments made the subject of this

litigation. The panel further gave Appellees the opportunity to respond to

Appellant’s briefing on Moncrief. Appellees submit the following.

I.     Moncrief Supports the Exercise of Personal Jurisdiction Over Henkel.

       The Texas Supreme Court in Moncrief, made it clear that the inquiry on

personal jurisdiction is concerned with matters of “physical fact” and not the

thoughts, words, or intent of the parties attending those physical facts. 414 S.W.3d

at 147. The key physical fact here is the undisputed presence of Henkel in Texas

on at least two occasions for meetings with his co-conspirator allegedly in

furtherance of the conspiracy to defraud investors of NC12,1 a Texas-based

company. What the parties said, thought, or intended in those meetings are

questions for the trier of fact on the merits, not for the inquiry on personal

jurisdiction.




1      The claims arise from the actions of the defendants in soliciting and retaining investors in
TSI and its successor entity NC12. (See CR 36-69; CR Supp. 11-42). Accordingly, for simplicity
purposes herein, references hereinafter to “NC12” or the “Company” refer to TSI and NC12.
                                                1
       The Supreme Court in Moncrief explained that:

       [T]he business contacts needed for specific personal jurisdiction over
       a nonresident defendant “are generally a matter of physical fact, while
       tort liability (especially misrepresentation cases) turns on what the
       parties thought, said, or intended. Far better that judges should limit
       their jurisdictional decisions to the former rather than involving
       themselves in trying the latter.”

414 S.W.3d at 147 (quoting Michiana Easy Livin’ Country, Inc. v. Holten, 168

S.W.3d 777, 791 (Tex. 2005)).

       Accordingly, Henkel’s complaint that there is no evidence of what the

parties may have discussed during the meetings in Texas is without merit. Whether

or not the meetings were in fact in furtherance of the alleged conspiracy is a

question to be addressed at the merits stage. The physical facts were sufficiently

established to support personal jurisdiction over Henkel on claims arising from

Henkel’s contacts with Sydow.

       Intervenors submitted the affidavit of Austin Kimball (“Kimball”) in support

of their objection to Henkel’s Special Appearance. (CR 305-06). Kimball worked

as an administrative assistant for NC12 and Sydow’s law firm from 2008 through

2010. Kimball’s affidavit unequivocally establishes two meetings between Henkel

and Sydow in Texas during Kimball’s affiliation with NC12. (Id.). Any suggestion

otherwise is disingenuous.2

2       Kimball stated that when he first picked up Henkel, he did so at Sydow’s instruction for a
meeting with Sydow. (CR 305). If Henkel did not meet with Sydow at the Houstonian on that
first occasion, Henkel had sufficient opportunity to identify the party or parties that he did meet
                                                2
       Despite ample opportunity to rebut Kimball’s affidavit testimony – either in

reply to the Intervenors’ response to his special appearance or in response to the

Intervenors’ Motion for New Trial – Henkel failed to submit any evidence to

challenge Kimball’s testimony placing Henkel in Texas for meetings with Sydow

in furtherance of a conspiracy during the period that NC12 was soliciting lenders

and investors and issuing NC12 shares.

       Accordingly, the trial court was entitled to find that Henkel did meet with

Sydow in Texas during the period of the alleged conspiracy.3 Here, it is important

to note that the only affidavit that Henkel executed and submitted in support of his

special appearance contained the following factual statements that were proven to

be false.

        Henkel misrepresented his travel to Texas. Henkel stated under oath that
         he had not visited or traveled to Texas in the past 30 years. (CR 33).
         Henkel did not even attempt to rebut the Kimball Affidavit.4


with at the Houstonian. He did not. Accordingly, the only inference that may be drawn from the
evidence submitted is that the first meeting with Sydow occurred at the Houstonian hotel.
3      Henkel will have the opportunity at the merits stage to explain what the parties thought,
said, or intended during those meetings with Sydow, or otherwise explain the “abundant
legitimate reasons” Henkel suggests on appeal that the two men may have met.
4       Henkel’s counsel stated at oral argument that it would not be surprising that a man as
busy and as well-travelled as Henkel may not have remembered at the time he signed his
affidavit in support of his Special Appearance that he had traveled to Texas. However, once his
memory was jogged by the Kimball Affidavit, Henkel had the opportunity to submit evidence
either (1) challenging the accuracy of Kimball’s testimony regarding the visits to Texas and the
meetings with Sydow, e.g. even a simple denial of same, and/or (2) establishing a different
purpose for the visits, e.g. Sydow arranged for his rides as a friend, but the meetings were not
with Sydow and were unrelated to NC12 matters. Henkel failed to challenge the Kimball
testimony in any respect.
                                               3
       Henkel misrepresented his investments in Texas. Henkel stated under
        oath that he did not have any investments in Texas. (CR 33). However,
        Henkel was a shareholder in Texas-based NC12 in his individual
        capacity, with 19,230 shares listed as held in his name. (CR 164).

       Henkel misrepresented his participation in litigation in Texas. Henkel
        stated under oath that, other than this lawsuit, he had never been a party
        to litigation in any state or federal court in Texas(CR 34). The evidence
        before the trial court proved this statement to be false. (See CR 128, 134-
        39). Henkel was a defendant in a prior lawsuit arising from his service as
        a board member for another company and had waived his special
        appearance in that matter to join a motion for entry of a proposed
        settlement. (Id.).

       Henkel misrepresented his service as a director of NC12. Henkel claimed
        that he joined the TSI board of directors in early 2008 and left the TSI
        board in May 2009. He denied ever having been a director of NC12. (CR
        145, 147-48). That denial was false. (See CR 157-59, 193-94).

      Given the falsehoods by Henkel disclosed through the Intervenors’ briefing,

the trial could have reasonably judged the credibility of the witnesses in favor of

the Intervenors and that Henkel’s meetings in Texas with Sydow were related to

the claims for fraud and conspiracy to commit fraud.

      Moreover, even had Henkel responded to the Kimball affidavit with his own

evidence that the meetings with Sydow were not in furtherance of the alleged

conspiracy, the effort would not have precluded a finding in favor of jurisdiction.

The Court in Moncrief rejected a similar attempt by the defendant to focus on the

merits of the claim, explaining that “what the parties thought, said, or intended is

generally irrelevant to their jurisdictional contacts.” Moncrief, 414 S.W.3d at 147.

There, the nonresident defendants allegedly misappropriated purported trade

                                         4
secrets received from a Texas company concerning a proposed Texas venture

during two meetings in Texas. Id. at 148. The defendants, however, claimed that

their intent in attending the meetings was to discuss an unrelated matter, that they

advised the plaintiff accordingly, and that they advised the plaintiff that they would

not keep the information confidential. Id. at 153-54 & n.10. The Court held that

“[r]egardless of the defendants’ subjective intent, their Texas contacts are

sufficient to confer specific jurisdiction over the defendants as to the trade secrets

claim.” Id. at 147 (emphasis added).

      Under Moncrief, the Intervenors’ allegations combined with the evidence

confirming Henkel’s physical contact with Texas through meetings in the state

with an alleged co-conspirator in a conspiracy to commit fraud are sufficient to

confer personal jurisdiction. Accordingly, the trial court did not need to infer that

Henkel and Sydow did in fact engage in conspiratorial acts during those two

meetings in Texas – that question is left for the merits stage of the litigation.

      Contrary to Henkel’s suggestion, the Court’s discussion in Moncrief of the

non-residents’ acceptance of alleged trade secrets while in Texas does require a

factual finding here that Henkel’s meetings in Texas were in furtherance of the

alleged conspiracy before the court may exercise personal jurisdiction over Henkel.

Instead, the court need only have found that the evidence reflected purposeful

activity by Henkel that was related to the plaintiff’s claims.


                                           5
       In its analysis of the purposeful nature of the non-residents’ contacts the

Court in Moncrief noted that the defendants’ “contacts with Texas were neither

unilateral . . . nor random and fortuitous.” Moncrief, 414 S.W.3d at 153. “Unlike in

Michiana, the Gazprom Defendants had a ‘say in the matter.’” Id. The Court noted

that Gazprom “agreed to attend Texas meetings” and “accepted Moncrief’s

alleged trade secrets at those meetings” and concluded that Gazprom was not

“unilaterally haled into forming contacts with Texas.” 414 S.W.3d at 153

(emphasis added).5

       Here, similarly, Henkel’s meetings in Texas with NC12 director and alleged

co-conspirator Sydow were purposeful contacts with the state related to the

Intervenors’ claims for fraud and conspiracy to commit fraud. Just like the

defendants in Moncrief, Henkel “had a ‘say in the matter.’” He could have declined

service on the NC12 board and/or could have declined to meet with Sydow in

Texas. He was not brought into this state by the unilateral actions of the Plaintiffs

or the Intervenors but by his own purposeful activity.

5       Notably, the Court cited the discussion in Retamco Operating, Inc. v. Republic Drilling
Co., 278 S.W.3d 333, 337 (Tex. 2009), regarding the willing nature of the defendant’s contacts
with Texas. Id. The Court explained that the defendants “were not unilaterally haled into
forming contacts with Texas; rather, they agreed to attend Texas meetings. And the Gazprom
Defendants accepted Moncrief’s alleged trade secrets at those meetings.” Moncrief, 414 S.W.3d
at 153 (emphasis added). The use of the term “rather” confirms that the Court intended to
contrast unilateral activity of the plaintiff with purposeful activity of the defendant by noting the
allegations as to what the defendants allegedly physically did in Texas as opposed to creating a
standard that would require evidence of the matters going to the merits of the claim. That the
plaintiff supported the allegation regarding what happened during the meeting was relegated to a
footnote.
                                                 6
       Contrary to Henkel’s assertion, the absence of evidence at to what Sydow

and Henkel discussed during their meetings in Texas does not render the claims

here like the tortious interference claims in Moncrief. The meetings identified in

support of the tortious interference claim in Moncrief took place in California, not

Texas. The Court noted that “the tortious interference claim [was] principally

concerned with the California meeting and the competing Texas enterprise6 – not

the purported misappropriate of alleged trade secrets,” that was alleged to have

occurred in Texas. Moncrief, 414 S.W.3d at 157. The Court’s decision on the

tortious interference claim in Moncrief is entirely consistent with its focus on the

physical facts – not the merits of the claims.

       Accordingly, Henkel could potentially defeat personal jurisdiction only if

the evidence supported a finding that Henkel did not meet with Sydow in Texas,

not by challenging the purpose or substance of those meetings. The evidence did

not support that finding.

       Henkel’s complaint that evidence that a communication took place is not

evidence of the content of that communication is irrelevant in the context of the

personal jurisdiction analysis, and the authority cited in support is inapplicable.

The court in Bluebonnet Petroleum, Inc. v. Kolkhorst Petroleum Co., Inc., 14-07-


6     The Court noted that the court of appeals had rejected the alter ego theory advanced by
Moncrief regarding the creation of the competing Texas entity as a basis of personal jurisdiction.
Moncrief, 414 S.W.3d at 157.
                                                7
00380-CV, 2008 Tex. App. LEXIS 7724 (Tex. App.—Houston [14th Dist.] Oct. 9,

2008, pet. denied) addressed a summary judgment on merits, not a decision on a

special appearance. Although AmQuip Corp. v. Cloud, 73 S.W.3d 380 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (abrogated on other grounds, PHC-

Minden, L.P. v. Kimberly Clark Corp., 235 S.W.3d 163 (Tex. 2007)), did address

personal jurisdiction, the inquiry was whether telephone records reflected phone

calls or faxed advertisements, i.e. the physical facts, not the content of either.

      Similarly, the trial court’s decision did not require that the court use

speculation to connect the alleged meetings to the Intervenors’ claims. The

connection was evident – a meeting between co-conspirators in Texas during the

relevant period. Moreover, the fact that Henkel denied having been to Texas in 30

years is itself suggestive of the conspiracy. Certainly if the meetings in Texas were

innocuous and not tied to the pending claims – either the meetings were not with

Sydow or were related to non-NC12 matters – Henkel would have disclosed them

and explained them in his initial affidavit in support of his special appearance. He

did not.

      Moreover, because the physical fact is the operative fact on personal

jurisdiction, the trial court was not required to determine whether “Sydow and

Henkel discussed a conspiracy to defraud, or [ ] ordinary business matters of TSI

or NC12” as Henkel suggests.7


                                           8
II.    Intervenors’ Pleadings Support a Finding in Favor of Specific
       Jurisdiction.

       A.      The Intervenors’ Petition in Intervention and Briefing Establish
               the Relationship Between Henkel’s Texas Contacts and the
               Pending Claims.

       Henkel’s complaint that the petition fails to allege that Henkel and Sydow

discussed or furthered the alleged fraudulent conspiracy while meeting in Houston

is misplaced. The inquiry is not confined to the petition. Instead, the trial court may

consider all of the pleadings before the court – which would include the petition

and the parties’ briefing. See TEX. R. CIV. P. 120a (“The court shall determine the

special appearance on the basis of the pleadings, any stipulations made by and

between the parties, such affidavits and attachments as may be filed by the parties,

the results of discovery processes, and any oral testimony.”); Wikert v. Year One,

Inc., 320 S.W.3d 522, 524 (Tex. App.—Dallas 2010, no pet.); Ennis v. Loiseau,

164 S.W.3d 698, 705 (Tex. App.—Austin 2005, no pet.); Hale v. Richey, No. 10-



7        Henkel cites City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005), Service Corp.
Int’l v. Guerra, 348 S.W.3d 221 (Tex. 2010), Sacks v. Hall, No. 01-13-00531-CV (Tex. App.—
Houston [1st Dist.] Nov. 20, 2014, no pet.), and Hancock v. Variyam, 400 S.W.3d 59, 70-71
(Tex. 2013), for the argument that the trial court violated the equal-inference rule. However, in
each of those cases, the matters at issue were inferences related to ultimate findings by the trier
of fact regarding the merits of the litigation. The trial court here did not need to infer that the
meetings between Sydow and Henkel occurred in Texas – the finding is wholly supported by the
Kimball Affidavit. Nor did the court need to infer what transpired during the meeting. The court
needed only to find a connection between the meetings and the alleged fraudulent conspiracy.
Intervenors specifically alleged the connection in their pleadings – the petition in intervention
and briefing on the special appearance – by alleging that Sydow, Preston, and Henkel acted
together to defraud investors and established the connection with evidence that at least two
meetings between two of the alleged conspirators occurred in Texas.
                                                9
11-00187-CV, 2012 Tex. App. LEXIS 261, *11 (Tex. App.—Waco Jan. 11, 2012,

no pet.).

       Appellees expressly alleged in their Motion for New Trial that the “two

visits to Texas are significant as they reflect meetings in Texas between two NC12

directors in furtherance of the conspiracy alleged in Intervenors’ Petition in

Intervention.” (CR 186). Further, the Intervenors’ petition sufficiently outlines the

alleged conspiracy to defraud the investors. For example, the Petition in

Intervention expressly alleges the following:

        Preston failed to raise additional funds for Texas Syngas in 2009,
         and by mid-year Texas Syngas desperately needed funding. (CR
         54).

        The Note Holder Intervenors, were issued convertible promissory
         notes, which provided for automatic conversion into common
         shares at a 20% discount of the new investor’s valuation if Texas
         Syngas obtained qualified financing from a single investor of at
         least $5 million on or before September 30, 2010. (CR 54).

        If no qualified financing occurred, the notes would become due
         and payable within five days after a demand was made on or after
         the September 30, 2010, maturity date. (CR 54).

        Preston and Sydow represented to the Note Holder Intervenors that
         Texas Syngas was worth $300 million as of 2009, based on the
         value of the technology and certain alleged contracts held by the
         Company. (CR 55).

        Preston and Sydow failed to disclose that the contracts had been
         cancelled. (CR 55).

        In response to the discovery of financial mismanagement and
         misappropriation, H.J. von der Goltz (“von der Goltz”) complained
         to Sydow in early August 2010 and demanded that Sydow provide
                                         10
           an accounting of Sydow’s handling of the Company’s funds. (CR
           57-58).

       Sydow moved to obtain control of the Company, enlisting Preston
        and Henkel, who agreed to support the ouster of von der Goltz and
        Muderrisoglu as directors, and agreed individually to serve as
        replacement directors and to vote in favor of Sydow’s takeover of
        the company, which resulted in the theft of its assets. (CR 59).

       Sydow, Preston, and Henkel, as the new board, revoked all access
        that von der Goltz had to the Company’s bank accounts and
        records. (CR 59).

       Immediately after the board takeover, Sydow, Preston, and Henkel
        agreed to the deal with third parties that von der Goltz had
        opposed, except on terms much less favorable to NC12 than
        originally proposed. (CR 61).

       Sometime prior to the board takeover, Sydow, Preston, Henkel,
        created Meliora Energy Technologies, S.à.r.l (MET), a corporation
        owned by C Change, Chalsys, and Henkel. (CR 61).

       The new NC12 board, Sydow, Preston, and Henkel, represented to
        the NC12 shareholders that MET had provided NC12 with a $1.15
        million bridge loan and a commitment for an additional investment
        of $5 million in equity. (CR 61).

       The supposed MET financing for $5 million resulted in the
        automatic conversion of the promissory notes into common shares.
        The NC12 board of directors, consisting of Preston, Henkel, and
        Sydow, informed the Note Holder Intervenors on September 28,
        2010, that they were now common shareholders with 39.4%
        ownership, while MET owned 30.3% for its $5 million investment,
        and the “old” shareholder group would be diluted to 30.3%—down
        from 100%. (CR 62).

      B.     Henkel Defines the Pending Fraud Claims Too Narrowly.

      Appellant defines the Intervenors’ claims too narrowly. The bankruptcy

court did dismiss the claim for breach of fiduciary duty and conspiracy to breach

                                       11
fiduciary duties, but left to the Intervenors their claims for fraud – both statutory

and common law – and conspiracy to commit fraud. (CR Supp. 40). In fact, the

NC12 Trustee conceded that the securities fraud claims, as plead, were direct

claims owned by the Intervenors, and the bankruptcy court agreed. (CR Supp. 32-

33).

       In its order remanding the fraud claims to the district court, Bankruptcy

Judge Marvin Isgur distinguished the fraud claims from those that belonged to the

NC12 estate on the basis of the nature of the damages suffered, confirming that

“the Intervenors’ claims for harm due to fraudulently induced investments are

independent of any harm directly to NC12; indeed, NC12 benefited from the

Intervenors’ investments by having their cash.” (CR Supp. 33). However, Judge

Isgur did not dismiss “any claim regarding ‘alleged post-purchase misconduct in

the operation of the corporation’” as Henkel contends. (See Henkel Supp. Br. at pp.

6-7). Instead, the quote from Judge Isgur’s order related to the measure of damages

for the Intervenors’ individual claims.8 It would not preclude claims based on post-

purchase conduct if that conduct relates to the alleged fraud.




8      Judge Isgur states in his order that “[b]ecause the Intervenors are shareholders, their fraud
claim is based on the alleged difference between the price they paid in reliance on the alleged
misrepresentations and the actual value of NC12’s shares at the time of their investment.” (CR
33). As a technical matter, the noteholder Intervenors did not become shareholders, if at all, until
September 28, 2010, after Henkel had rejoined the NC12 board.
                                                12
       Here, the Intervenors have alleged an on-going fraud by the defendants –

both by material misrepresentations and omissions – that resulted in continuing

investments from December 2007 through August 2010, and the purported

conversion of the promissory notes into shares in September 2010. (See CR 54-55,

62).

       For example, the alleged wrongful takeover of the board by Sydow, Preston,

and Henkel in August 2010 allowed the conspirators to hide the true financial

condition of the Company from the noteholder Intervenors so that they would not

demand payment on the matured notes. The Defendants then purported to convert

the notes to shares in September 2010. (See CR 54-55, 62). The notes would have

become due and payable within five days after their September 30, 2010 maturity

dates if a “qualified financing” had not occurred. (CR 54). As reflected above, the

Intervenors allege that the Defendants engaged in a conspiracy to commit fraud on

the noteholder Intervenors by misrepresentations regarding the financial condition

of the Company and the existence of an alleged qualified financing that permitted

the conversion of the notes to shares before the notes matured. (CR 62).

Significantly, the Defendants’ actions purportedly transformed the notes from

assets that the noteholders as lenders could have called due and sought to collect

against into shares in a non-public company whose value was entirely dependent

on the financial health of the Company. Accordingly, the Defendants’ conduct


                                        13
after the initial investment and loan dates, including the alleged wrongful takeover

of the NC12 board, is relevant to the fraud claims before the trial court.

      C.     As An Alleged Co-Conspirator, Henkel is Potentially Liable for
             All Actions in Pursuit of the Conspiracy, Regardless of When
             They Occurred.

      As a conspirator, Henkel would be jointly and severally liable for all actions

in furtherance of the conspiracy, including those before and after his joining of the

conspiracy. See Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 101

(Tex. Civ. App.—Houston [14th Dist.] 2004, no pet.) (“It is well-settled law that

upon joining a conspiracy, a defendant becomes a party to every act previously or

subsequently committed by any of the other conspirators in pursuit of the

conspiracy.”). Accordingly, the specific timing of the meetings is irrelevant to the

conspiracy claims as they necessarily occurred at some point during the alleged

conspiracy given the dates set in the Kimball Affidavit.




                                          14
III.     Intervenors’ Investments.

         The Intervenors comprise two groups of investors, the “Shareholder

Intervenors” and the “Noteholder Intervenors.” The “Shareholder Intervenors”

invested a total of $5,250,000 in cash in NC12 from late 2007 until early 2008. The

“Note Holder Intervenors” invested $6,104,000 million from late 2009 until mid-

2010. These Intervenors were issued promissory notes that were automatically

convertible into common shares if at least a $5 million additional investment was

obtained from an investor by September 30, 2010. On September 28, 2010, the

Note Holder Intervenors were informed that their promissory notes had converted

into common shares. (CR 38-39).

         The investment dates are outlined in Schedule 1 attached hereto and are

derived from the Petition in Intervention. (See CR 39-42).

                                    CONCLUSION

         Appellees respectfully request that this Court affirm the order of the District

Court.




                                           15
                                          Respectfully Submitted,

                                           /s/   Kelley M. Keller

                                          Kelley M. Keller
                                          State Bar No. 11198240
                                          Tracey N. Ellison
                                          State Bar No. 15054720
                                          ELLISON & KELLER, P.C.
                                          5120 Woodway Drive, Suite 6019
                                          Houston, Texas 77056
                                          713-266-8200 (Telephone)
                                          713-266-8201 (Facsimile)
                                          kkeller@ellison-keller.com

                                          Attorneys for Appellees


                       CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing instrument was forwarded via electronic mail and/or eservice, to the
following attorneys of record on July 14, 2015.

      Jane Langdell Robinson
      Jamie Aycock
      AHMAD, ZAVITSANOS, ANAIPAKOS,
       ALAVI & MENSING, P.C.
      1221 McKinney Street, Suite 3460
      Houston, Texas 77010
      713-655-0062 (Facsimile)
      Attorneys for Appellant

                                           /s/ Kelley M. Keller
                                          Kelley M. Keller




                                     16
                     CERTIFICATE OF COMPLIANCE

      I certify that this brief complies with the typefact and word-count
requirements set forth in the Texas Rules of Appellate Procedure. This brief has
been prepared, using Microsoft Word, in 14-point Times New Roman for the body
and 12-point Times New Roman for footnotes. This brief contains 4,040 words, as
determined by the word count feature of Microsoft Word, excluding those portions
exempted by TEX. R. APP. P. 9.4(i)(1).

                                            /s/ Kelley M. Keller
                                           Kelley M. Keller




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