

Opinion issued December 22, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00551-CV
———————————
Zack Shahin, Appellant
V.
Deyaar
Development Corporation USA, Appellee

 

 
On Appeal from the 152nd District Court
Harris County, Texas

Trial Court Case No. 2010-64967
 

O P I N I O N
          Appellant,
Zack Shahin, appeals the trial court’s order denying his special
appearance.  In two issues, Shahin argues
that (1) the trial court cannot exercise long-arm jurisdiction over him because
he is being held without trial in a foreign prison and, therefore, has no
meaningful access to Texas counsel and (2) the trial court’s exercise of
jurisdiction over him does not comport with the due process standards of “fair play
and substantial justice.”
          We affirm.
                                                                                                                                                                
Background
Shahin is an American citizen who has resided overseas for
a number of years and is currently being held in prison in Dubai, United Arab
Emirates (“U.A.E.”).  Beginning in 2004,
Shahin worked as the CEO of Deyaar Development PJSC (“Deyaar Dubai”), a real
estate development company based in Dubai. 
Appellee, Deyaar Development Corporation (“Deyaar”), is a Texas
corporation with its principal place of business in Dallas, Texas, and is a
wholly owned subsidiary of Deyaar Dubai.
This suit arises out of a real estate transaction in which
Deyaar, under Shahin’s direction, bought a parcel of undeveloped property
located at 5000 Richmond Avenue (the “Richmond Property”) in December
2007.  Deyaar alleges that Shahin, in
coordination with the other defendants,[1]
“orchestrated” a “fraudulent scheme” surrounding the sale of this property for
a greatly inflated price, which caused Deyaar “significant losses.”  In early 2008, Shahin resigned as the CEO of
Deyaar Dubai, and he was arrested in Dubai in March 2008.  Shahin asserts that he was held without the
ability to communicate with the outside world for several weeks and without
official charges being brought against him for over a year.
On October 4, 2010, Deyaar filed suit against Shahin and
other defendants alleging fraud, conspiracy to commit fraud, statutory fraud in
a real estate transaction,[2]
breach of fiduciary duty and other duties, aiding and abetting breach of
fiduciary duty, and violations of the Texas Theft Liability Act.[3]  Deyaar also sought an injunction freezing
Shahin’s assets in the United States.
Deyaar pleaded that Shahin was a Texas resident who could
be served either at the jail where he is being held in Dubai or at a property
in Harris County.  Deyaar further pleaded
that all of the remaining defendants were Texas residents.  Deyaar alleged that, at the time of the
allegedly fraudulent real estate transaction, Shahin was Deyaar Dubai’s CEO and
the sole director of Deyaar, that he recommended approval of the transaction to
the chairman of Deyaar Dubai, and that the transaction was undertaken in
reliance on his recommendation and with his direct involvement.  Deyaar further alleged that Shahin personally
profited from the allegedly fraudulent real estate transaction in the form of
real property transfers from entities related to the seller of the property to
Larun Investments, LLC, an entity owned by Shahin, and in renovations to his
home located in Houston, Texas, performed by entities related to the seller. 
On October 14, 2010, Shahin filed a special appearance to
challenge the trial court’s exercise of personal jurisdiction over him.  He argued that he was not a Texas resident as
alleged by Deyaar and that “the exercise of jurisdiction in this proceeding
would not comport with traditional notions of fair play and substantial
justice” because he has been held captive in Dubai and, therefore, has “no
practical access to his U.S. attorneys and there is simply no way for him to
meaningfully defend himself in this lawsuit.” 
Shahin asserted that he “has not lived in Texas since the early 1990s,
and before that [he] only lived in Texas for two or three years.”  He alleged that he subsequently lived and
worked overseas until his arrest in Dubai. 
He also alleged that his family fled Dubai for Texas without him in 2008
as a result of his problems with the government.
Regarding his imprisonment, Shahin asserted that he “does
not have the confidential access to U.S. counsel required by the Fourteenth
Amendment” and that “it is unclear if or when . . . Shahin’s U.S. counsel ever
will gain access” to him.  He also stated
that his communications channeled though the U.S. State Department would not
afford the necessary confidentiality and that communications made over the
prison phones are monitored by the government in Dubai.  He further argued that Texas has no
substantial interest in this suit because Deyaar Dubai is based in Dubai, and
“[t]he fact that [it] has a hollow shell company organized in Texas is
meaningless.”  Shahin also argued that,
because Deyaar Dubai filed suit against him in Dubai months before Deyaar filed
this suit in Texas, Texas is neither the most convenient nor the most efficient
forum to resolve this dispute.  The facts
supporting Shahin’s special appearance were provided and verified by Eric J.
Akers, an attorney and “longtime friend of the Shahin family,” because Shahin
himself was not able to consult with his attorneys.
In response, Deyaar amended its petition to assert a more
specific basis for the exercise of jurisdiction over Shahin.  Deyaar asserted that the trial court had
specific jurisdiction over Shahin because he “appeared in and has had multiple
contacts with Harris County, Texas, in person, by email, and by telephone, for
the purpose of personally benefitting himself by committing the fraudulent
acts” alleged against him regarding the real estate transaction.  Deyaar alleged that Shahin’s liability
“arises from or is related to those many contacts with, actions in, and actions
directed to Harris County, Texas, [and] form a substantial basis for the legal
claims asserted against him” in the suit. 
Deyaar also alleged that the trial court had general jurisdiction over
Shahin because he “has established continuous and systematic contacts with
Texas.”  Deyaar alleged that Shahin “has
registered to vote in Texas, has obtained a Texas driver’s license, owns
property in Texas, has traveled to Texas on numerous occasions, has resided in
Texas, and has formed at least three companies in Texas.”
Deyaar’s response to the special appearance identified
those contacts added in the amended pleading and also argued that the exercise
of jurisdiction would comport with traditional notions of fair play and substantial
justice because Shahin has employed attorneys who currently defend him in
matters pending in Dubai, he can confer with those attorneys freely and
confidentially, and he has the opportunity to contact individuals outside the
prison.  
Deyaar supported these allegations with the affidavits of Wassef
Serhan, an executive vice-president of Deyaar Dubai who was familiar with the
details of the real estate transaction.  He
averred that Shahin “identified the 5000 Richmond Property as a target investment
in the United States”; “spearheaded the effort to form [Deyaar] and purchase
the 5000 Richmond [P]roperty”; “obtained and provided information to complete
the corporate documentation of [Deyaar]”; “coordinated communications” with
Deyaar Dubai and third parties in the formation of Deyaar; and “directed the
purchase of the 5000 Richmond Property, including having primary responsibility
for communicating with the seller and closing the transaction in December
2007.”  Deyaar provided information
regarding at least two trips Shahin made to Houston in the course of forming
Deyaar and acquiring the Richmond Property, and Serhan averred that he was
aware of Shahin’s making several other trips to Houston and that he was aware
of multiple e-mails sent and received by Shahin in Houston.  Deyaar also presented the affidavit of Adnan
Tareen, a former officer of Deyaar Dubai, who also attested to similar facts.
Deyaar attached the affidavit of Saeed Mohamed Obaid Al
Qatami, the current CEO of Deyaar Dubai, in which Al Qatami stated that he had
been in contact with Shahin on four occasions following his arrest.  In early 2009, he visited Shahin after he was
transferred from jail to an area hospital for treatment of medical conditions,
and Shahin appeared to be “comfortable and in good spirits,” was accompanied by
his mother and several friends, and used a laptop and cell phone in Al Qatami’s
presence.  In April 2010, Al Qatami
received a phone call Shahin placed from prison to congratulate Al Qatami on
his appointment as CEO; in October 2010, he received another call Shahin placed
from prison asking about Al Qatami’s recent trip to Houston, which Shahin
learned of despite being held in prison; and, in early 2011, he received
another call from Shahin and stated, “I am not aware what prompted Mr. Shahin
to call me on this most recent occasion.” 
Al Qatami further stated, “At no time during my telephone conversations
with Mr. Shahin did he express that he had any difficulty in contacting me. . .
.  Based on the foregoing, I am not aware
of any restrictions on Mr. Shahin’s ability to communicate with individuals
outside Al Aweer Prison.”
In another affidavit, Khalid Al Hamrani, a Dubai attorney
representing Deyaar Dubai, stated that he was lead counsel for Deyaar Dubai in
three civil cases filed against Shahin in Dubai courts and that he had an
opportunity to observe Shahin and his counsel in Dubai.  Al Hamrani averred that he had attended
numerous hearings related to the Dubai suits, and, on each occasion, Shahin
appeared in person, looking well-dressed and in good health, and was
represented by Dubai counsel, who submitted briefs, cross-examined witnesses,
and made arguments on Shahin’s behalf. 
Al Hamrani stated that Shahin’s Dubai counsel “has also been freely
permitted to confer with his client confidentially at these hearings” and “has
never raised a complaint to the Dubai Courts that access to his client has been
denied.”  Al Hamrani averred that Shahin’s
Dubai counsel visited him regularly in prison, and Al Hamrani was aware of the
general visitation policies of the prison where Shahin is being held.  He stated that the prison is “subject to
constant judicial monitoring [pursuant to] the UAE Federal Criminal Procedures
Code”; personal visits are allowed Sunday through Thursday from 8:00-11:00;
visits from lawyers both foreign and local are allowed every Monday from
8:00-11:00; foreign lawyers must present “a legalized document proving that
s/he is a certified legal practitioner”; and all visitors must arrange a visit
by placing a phone call to the prison, which allows prison officials to seek
permission for the visit from the prisoner and to confirm the time and date.
Deyaar also provided a certified copy of Shahin’s Texas
marriage license issued in 1991, a certified copy of a general warranty deed
dated March 20, 2008, conveying property located in Harris County, Texas to
Shahin and his wife, a certified copy of a general warranty deed conveying
property in Harris County from Shahin, through an agent, to his wife, on June
4, 2010, Shahin’s voter registration card dated October 9, 2007, a document
from the Texas Department of Public Safety showing that Shahin was issued a
driver’s license on October 9, 2007, with an expiration date in 2014, and documents
relating to Shahin’s formation of two other companies not associated with
Deyaar Dubai, one of which was Larun Investments, LLC, listing Texas addresses
for Shahin.
Shahin himself subsequently filed an affidavit in support
of his special appearance.  He averred
that he is an American citizen currently imprisoned in Dubai and that his
family moved to Texas in 2008 after his arrest out of concern for their
safety.  He stated that he has lived in
the Middle East since 1992, became the CEO of Deyaar Dubai in 2004, and
subsequently resigned in 2008 after the government undertook a special audit of
Deyaar Dubai.  Shahin stated that he was
subsequently restricted from leaving the country and was eventually arrested
without formal charges.  He averred that
during the first several weeks of his imprisonment he was placed in solitary
confinement in harsh conditions, suffered physical abuse, and was threatened
until he agreed to sign documents in Arabic that he could not read.  He stated that he was unable to contact his
family, a lawyer, or the United States Consulate during that time and that he was
subsequently transferred on several occasions. 

Shahin’s affidavit does not address the conditions of his
current prison, although he did state that local law does not provide the same
protections for attorney-client communications that are present in the United
States; that the prosecutor has threatened to revoke his attorney-client
privilege; that he can only communicate “with any degree of confidentiality”
with his lawyer in person at the prison after making special arrangements to
meet in a room or when he is taken to a hearing; that he is concerned the rooms
“could contain hidden microphones, and that I or my attorneys could be made to
reveal the content of those discussions”; that he has only limited access to a
prison telephone and does not have a cell phone or computer access; that all
calls from the prison phone are monitored and all packages or letters are
opened and reviewed by prison officials; and that he would not be able to
travel to Houston to participate in any hearings in person and would not be
able to participate by telephone. 
Finally, he stated that he has limited access to documents related to
the claims against him in Texas, he has only been able to discuss the case with
his U.S. attorneys twice, when the attorneys traveled to Dubai, and his health
is failing.  He also averred that, to the
best of his knowledge, the majority of the relevant evidence and witnesses are
located in Dubai and that an “identical case” is currently pending in Dubai
courts.  Shahin further averred that his
Dubai counsel speaks limited English and has no experience with American law,
so his Dubai counsel “can be of only limited assistance, if any, in assisting
to defend the claims being asserted against [him] in the United States.”  Shahin also provided copies of letters to and
from the U.S. Consulate attempting to address the conditions of Shahin’s
imprisonment through diplomatic channels.
Al Hamrani gave a second affidavit, in which he stated
that Shahin’s Dubai counsel has never complained that his ability to
communicate confidentially with his client was compromised in some way, that
his meetings and phone calls are recorded or monitored, or that he has been
denied access to Shahin in prison.  Al
Hamrani averred that he had never witnessed any recordings of Shahin’s
conversations with his attorney being used as evidence against him in Dubai
courts and that the U.A.E. Penal Code prohibits recording conversations
conducted in a private place or through a telephone without the consent of the
victim.  A second attorney for Deyaar
Dubai in the civil litigation pending against Shahin in Dubai averred that
Shahin has also asserted that the Dubai court lacks jurisdiction over that case
and provided a translated copy of Shahin’s filing.
Following a hearing, the trial court denied Shahin’s
special appearance.  The trial court did
not issue any findings of fact or conclusions of law, and no reporter’s record
was taken.
                                                                                                                                               
Personal Jurisdiction
A.              
Standard of Review
Whether a court has personal jurisdiction over a defendant
is a question of law that we review de novo. 
BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Glattly v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex. App.—Houston [1st
Dist.] 2005, no pet.).  Before
determining the jurisdictional question, the trial court must frequently
resolve questions of fact.  BMC Software, 83 S.W.3d at 794.  When, as here, a trial court does not
issue findings of fact and conclusions of law, “all facts necessary to support
the judgment and supported by the evidence are implied.”  Id.
at 795.  Under these circumstances, we presume that the trial court resolved all
factual disputes in favor of its judgment. 
Tri-State Bldg. Specialties, Inc.
v. NCI Bldg. Sys., L.P., 184 S.W.3d 242, 246 (Tex. App.—Houston [1st Dist.]
2005, no pet.) (citing Am. Type Culture
Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002)).  
The
plaintiff bears the initial burden of pleading jurisdictional facts sufficient
to bring a nonresident defendant within the provisions of the Texas long-arm
statute.  Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.
2010).  To establish jurisdiction over a
nonresident defendant, the plaintiff must plead a “connection between the
defendant[’s] alleged wrongdoing and the forum state.”  Id.
at 655; Touradji v. Beach Capital P’ship,
L.P., 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.).  In a tort case, the plaintiff must plead that
the defendant committed a tortious act in Texas.  Kelly,
301 S.W.3d at 659; Touradji, 316
S.W.3d at 23.
A nonresident
defendant challenging the court’s exercise of personal jurisdiction through a
special appearance bears the burden of negating all grounds for personal
jurisdiction alleged by the plaintiff.  Moki Mac River Expeditions v. Drugg, 221
S.W.3d 569, 574 (Tex. 2007).  The
defendant can negate jurisdiction on either a factual or legal basis.  Kelly,
301 S.W.3d at 659; RSR Corp. v. Siegmund,
309 S.W.3d 686, 699 (Tex. App.—Dallas 2010, no pet.).  To negate personal jurisdiction on a factual
basis, the defendant can produce evidence showing that it has no contacts with
Texas, which the plaintiff may then counter with its own evidence.  Kelly,
301 S.W.3d at 659.  To negate
jurisdiction on a legal basis, the defendant can establish that, even taking
the alleged jurisdictional facts as true, “the defendant’s contacts with Texas
fall short of purposeful availment . . . or that
traditional notions of fair play and substantial justice are offended by the
exercise of jurisdiction.”  Id.; Siegmund,
309 S.W.3d at 699.  
Two
requirements must be met before a Texas court can exercise personal
jurisdiction over a nonresident defendant. 
First, the Texas long-arm statute must authorize the exercise of
jurisdiction; and, second, the exercise of jurisdiction must comport with
federal due process guarantees.  Coleman, 83 S.W.3d at 806; Tri-State, 184 S.W.3d at 248.
Pursuant to
the long-arm statute, Texas courts can exercise personal jurisdiction over a
nonresident defendant who “does business” in Texas.  Tex.
Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 2008); BMC Software, 83 S.W.3d at 795.  The statute lists three activities that
constitute “doing business” in Texas: 
(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 of Texas.  Tex. Civ. Prac. & Rem. Code Ann.
§ 17.042.  This list, however, is
not exclusive, and the “doing business” requirement is limited only by the
requirements of federal due process.  Koll Real Estate Grp., Inc. v. Purseley,
127 S.W.3d 142, 146 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Schlobohm v. Schapiro, 784 S.W.2d 355,
357 (Tex. 1990)); see CSR Ltd. v. Link,
925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding).  In practice, these two conditions are
combined into one requirement of due process. 
Wright v. Sage Eng’g, Inc.,
137 S.W.3d 238, 247 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see also Guardian Royal Exch. Assurance,
Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991) (“[W]e
consider only whether it is consistent with federal constitutional requirements
of due process for Texas courts to assert in
personam jurisdiction over Guardian Royal.”).
With
respect to personal jurisdiction, federal due process requires two things.  First, the nonresident defendant must have
purposefully established minimum contacts with the forum state such that the
defendant could reasonably anticipate being sued there.  Glattly,
177 S.W.3d at 446 (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174, 2183–84
(1985)).  Second, if the nonresident
defendant has purposefully established minimum contacts with the forum state,
the exercise of personal jurisdiction must comport with traditional notions of
fair play and substantial justice.  Id. at 447 (citing Burger King, 471 U.S. at 475–76, 105 S. Ct. at 2183–84).  
B.              
Shahin’s Contacts with Texas
In his first issue, Shahin argues
that the exercise of Texas long-arm jurisdiction over him is inconsistent with
due process because he is being held in a foreign prison without meaningful
access to Texas counsel.  In his second
issue, Shahin argues that the trial court’s exercise of jurisdiction over him
does not comport with traditional notions of “fair play and substantial justice.”  Because we must analyze whether the exercise
of jurisdiction over Shahin comports with traditional notions of fair play and
substantial justice in light of his contacts with this State, we first analyze Shahin’s contacts with
Texas.  See Spir Star AG v.
Kimich, 310 S.W.3d 868, 878 (Tex. 2010); Guardian Royal, 815 S.W.3d at 231.
A
defendant’s contacts with a forum can give rise to either specific or general
jurisdiction.  Coleman, 83 S.W.3d at 806.  A
court may exercise specific jurisdiction over a nonresident defendant if (1)
the defendant’s contacts with the forum were purposeful and (2) the cause of
action arose from or related to those contacts. 
Id.  In a specific jurisdiction analysis, “we focus
. . . on the ‘relationship among the defendant, the forum[,] and the
litigation.’”  Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333,
338 (Tex. 2009) (quoting Moki Mac,
221 S.W.3d at 575–76).
If the
cause of action does not arise from or relate to the defendant’s contacts with
the forum, a court may exercise general jurisdiction over the defendant if the
defendant’s contacts with the forum are “‘continuous and systematic,’ a more
demanding minimum-contacts analysis than specific jurisdiction.”  Coleman, 83 S.W.3d at 806–07 (quoting Guardian Royal, 815 S.W.2d at 228).
Deyaar has asserted that Shahin has multiple contacts with
Texas.  On appeal, Shahin does not
contest these contacts; thus, we construe his argument to be that, in our
analysis of whether a Texas court can exercise long-arm jurisdiction over him,
these contacts are overwhelmed by the fact of his foreign imprisonment.  However, in determining whether a nonresident
defendant has sufficient contacts with Texas, we look to his contacts with
Texas, not to contacts that might link him to another jurisdiction.  See id.
at 810 (“[A] trial court is bound by the facts and evidence before it.  Rather than the quantity of contact with
Texas as compared to other jurisdictions, we look to the nature and quality of
those contacts.  Thus, ‘[w]hether a
defendant is involved in commerce in another state to a greater or lesser
extent than in Texas should have no bearing on whether that defendant has
subjected itself to the jurisdiction of Texas courts.’”) (quoting Am. Type Culture Collection, Inc. v. Coleman,
26 S.W.3d 37, 54 (Tex. App.—Houston [1st Dist.] 2000) (O’Connor, J., dissenting
from denial of en banc review), rev’d, 83 S.W.3d 801 (Tex. 2002)).
Deyaar argues that the trial court has specific
jurisdiction over Shahin because he purposefully availed himself of conducting
activities in Texas and the cause of action against him arises from those
contacts.  We agree.  The allegedly fraudulent real estate
transaction underlying Deyaar’s claims involved a Texas corporation formed by
Shahin, it involved real property located in Texas, and it was solicited,
negotiated, and executed by Shahin in Texas. 
The jurisdictional evidence demonstrates that Shahin identified the
Richmond Property as a target investment for Deyaar Dubai, that he formed
Deyaar here in Texas to pursue the acquisition of that property, that he
traveled here repeatedly in the course of the transaction, and that he executed
the sale documents in Houston. 
Furthermore, Deyaar alleged that the personal profits to Shahin were
received by Shahin through another entity that he formed here in Texas and in
benefit to his personal Texas real estate.
Shahin’s contacts with Texas were purposeful, not random,
fortuitous, or attenuated, and they were not the result of unilateral actions
of a third party.  Shahin himself sought
out the Richmond Property as a potential investment for Deyaar Dubai, carried
out the negotiations here, formed a Texas corporation to acquire the property,
and executed the sale contract here.  See Retamco Operating, 278 S.W.3d at
339–40.  Furthermore, Shahin sought a
benefit, advantage, or profit in Texas. 
He sought this investment on behalf of the company he served as CEO, and
he also allegedly received personal benefits from this transaction here in
Texas.  See id. at 340.
Finally, there is a “substantial connection between [the
defendant’s forum] contacts and the operative facts of the litigation.”  See id.
(quoting Moki Mac, 221 S.W.3d at
585).  Deyaar alleges that Shahin
orchestrated the purchase of Texas real property from a Texas resident by a
Texas corporation formed by Shahin in the process of carrying out this
transaction.  Thus, we conclude that the
trial court could have determined that it had specific jurisdiction over
Shahin. [4]

C.              
Fair Play and Substantial Justice.
In his first and second issues, Shahin argues that the
trial court’s exercise of long-arm jurisdiction over him does not comport with
traditional notions of “fair play and substantial justice” because his
imprisonment imposes an almost impossible burden on his ability to defend this
suit in Texas, because he has no effective access to U.S. counsel, because Texas
has little interest in adjudicating these claims, and because Deyaar’s interest
in obtaining convenient and effective relief is better served by the Dubai
lawsuit.
In determining whether the exercise of personal
jurisdiction over a defendant comports with traditional notions of fair play
and substantial justice, we consider the defendant’s contacts in light of: (1)
the burden on the defendant; (2) the interests of the forum state in
adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient
and effective relief; (4) the interstate judicial system’s interest in obtaining
the most efficient resolution of controversies; and (5) the shared interest of
the several states in furthering fundamental, substantive social policies.  Spir
Star, 310 S.W.3d at 878; Guardian
Royal, 815 S.W.3d at 231.  In analyzing
the fourth and fifth considerations in cases where the interests of a foreign
nation rather than a different state are implicated, we consider the interests
of “other nations whose interests are affected by the assertion of
jurisdiction.”  Spir Star, 310 S.W.3d at 878 n.3 (quoting Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 115,
107 S. Ct. 1026, 134 (1987)); see also
Pessina v. Rosson, 77 S.W.3d 293, 298 (Tex. App.—Austin 2001, pet. denied)
(“When the defendant is a resident of another nation, the court must also
consider the procedural and substantive policies of other nations whose
interests are affected by the assertion of jurisdiction by a state court as
well as the federal government’s interest in its foreign relations policies.”).
Only in rare cases will the exercise of jurisdiction not
comport with fair play and substantial justice when the nonresident defendant
has purposefully established minimum contacts with the forum state.  Spir
Star, 310 S.W.3d at 878.  To defeat
jurisdiction, the defendant must present “a compelling case that the presence
of some consideration would render jurisdiction unreasonable.”  Id.  at 878–79 (quoting Guardian Royal, 815 S.W.2d at 231). 
When a Texas resident pursues a cause of action for harm committed
within Texas, “the fairness considerations have little impact.”  Michel
v. Rocket Eng’g Corp., 45 S.W.3d 658, 683 (Tex. App.—Fort Worth 2001, no
pet).
1.                
The
burden on Shahin
Shahin argues that the burden on him in defending this
lawsuit in Texas “borders on impossibility.” 
He argues that as a result of his imprisonment he does not have
reasonable access to Texas counsel and his personal resources are
diminished.  He also argues that his
communications with the outside world, including his attorneys, are monitored
and not adequately confidential, that he would be unable to attend hearings or
a trial in Texas, and that he does not have access to technology like e-mail, a
cell phone, or a fax machine that would help alleviate the burdens imposed by
the distance.
First, Shahin argues that the Fourteenth Amendment
protects his right of access to the court in civil cases when a person is
imprisoned.  See Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977)
(“It is now established beyond doubt that prisoners have a constitutional right
of access to the courts.”); Lewis v.
Casey, 518 U.S. 343, 350, 116 S. Ct. 2174, 2179 (1996) (recognizing same
right).  He further argues that
meaningful access to counsel is an important part of that meaningful access.  See Ching
v. Lewis, 895 F.2d 608, 609 (9th Cir. 1990) (per curiam) (“The opportunity
to communicate privately with an attorney is an important part of that
meaningful access [to the courts].”). 
However, the cases cited by Shahin address the right of prisoners to
file suit while incarcerated, and they do not address the rights of an
imprisoned defendant to resist suit on jurisdictional grounds, as Shahin is
asking us to do here.  Nor could we find
any cases that presented access to counsel as a special factor to consider in
our jurisdictional analysis.  We also
observe that civil litigants do not have an absolute constitutional right to
counsel.  See Harris v. Civil Serv. Comm’n for Mun. Emps. of the City of Houston,
803 S.W.2d 729, 731 (Tex. App.—Houston [14th Dist.] 1990, no writ).  Thus,
we consider the burdens on Shahin in light of his contacts with Texas.  See
Spir Star, 310 S.W.3d at 878.
Shahin himself put forward evidence that he has retained
counsel in Dubai and that he is able to communicate with his Dubai counsel
regarding legal matters pending against him there.  Shahin did not present any evidence that his
communications with his attorney are actually monitored or used against him in
some way—he expressed only a concern that such “could” happen.  Deyaar put forward evidence in the form of Al
Qatami’s affidavit that he has received multiple phone calls from Shahin while
he was in prison, that Shahin has expressed no difficulty in contacting him,
and that Shahin has been informed of Al Qatami’s trip to Houston in spite of
his imprisonment.  Al Hamrani, a Dubai
attorney, averred that he has observed Shahin interact with his well-respected
Dubai attorney, that neither of them has raised any complaints about the
attorney’s access to Shahin, and that he has never observed confidential
conversations being used in court against Shahin.
Based on these facts, the trial court could have resolved
the factual dispute regarding Shahin’s ability to retain counsel by concluding
that, although difficult, it was possible. 
Shahin already has at least one attorney in Dubai representing him and
has also somehow obtained counsel to represent him in his special appearance
here, including obtaining an affidavit from Shahin himself.  Furthermore, the evidence demonstrates that
Shahin can communicate with counsel in Dubai, and presumably, he could obtain
counsel in Dubai who could communicate on his behalf with counsel in Texas.  Shahin
also has family members here in Houston to help him defend his interests.  See
Tri-State, 184 S.W.3d at 246 (holding that when trial court does not make
findings of fact, we presume that it resolved all factual disputes in favor of
its judgment).
Shahin argues that
the burden on him in this case is greater than the burden on the nonresident
defendant in Guardian Royal, which
the supreme court determined would not comport with fair play and substantial
justice.  In Guardian Royal, the supreme court held that “[r]equiring Guardian
Royal, an English insurer, to submit its dispute with its English insured to a
foreign nation’s judicial system is burdensome.”  815 S.W.2d at 232.  The court noted that all of the acts
underlying the insurance policy in question occurred in England and that Texas
had minimal interests in adjudicating the dispute.  Id. at
232–33.  Shahin’s case is distinguishable
from Guardian Royal.  Shahin is a Unites States citizen, has
resided in Texas in the past, has conducted significant business in this state,
and owns real property in this state, so requiring him to defend a suit in
Texas is not the same as requiring a nonresident business to defend a suit in a
foreign jurisdiction.  Furthermore,
unlike Guardian Royal, many of the
events underlying Deyaar’s cause of action occurred in Texas and involved a
Texas corporation and Texas real property. 
Finally, although
Shahin himself lacks access to modern technology such as fax machines and
computers, any counsel he might retain in Dubai would have access to those
items on his behalf.  See Spir Star, 310 S.W.3d at 879
(holding that distance alone is insufficient to defeat jurisdiction because “modern
transportation and communication have made it much less burdensome for a party sued
to defend [itself] in a State where [it] engages in economic activity”); see also Fine v. Rubin, 617 So. 2d 86,
88 (La. Ct. App. 1993) (upholding Louisiana court’s exercise of jurisdiction
over nonresident defendant who was incarcerated in Maryland and stating, “The
trial court found that there was no undue burden on the defendant to litigate
in Louisiana, because being incarcerated in Maryland she would be unable to
attend a trial regardless where held. 
Although it might be possible to physically obtain the presence of the
defendant in a Maryland court because she is incarcerated there, exercising
personal jurisdiction over the defendant will not offend traditional notions of
fair play and substantial justice.”).
Thus, while we
agree that the burden on Shahin would not be insignificant, this factor alone
does not overwhelm our analysis of the remaining factors.  See
also Michel, 45 S.W.3d at 683 (holding that when Texas resident pursues
cause of action for harm committed within Texas, “the fairness considerations
have little impact”).
2.                
Texas’
interest in adjudicating the dispute
Shahin also argues that Texas has no compelling state
interest in this case.  He argues that
Deyaar is a “hollow shell” for its parent corporation, Deyaar Dubai, and that
no significant regulatory or property interests are at stake.  We disagree.
This case was brought by a Texas corporation and involves
alleged torts surrounding the sale of real property located in Texas.  All of the other defendants are Texas
residents.  Thus, Texas has a
considerable interest in resolving this dispute.  See
Retamco Operating, 278 S.W.3d at 341–42 (“Texas has an interest in
resolving controversies involving real property within its borders. . . .”); Control Solutions, Inc. v. Gharda Chems.
Ltd., 245 S.W.3d 550, 562 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(recognizing Texas’ interest in resolving dispute involving injury to Texas
corporation); Wright, 137 S.W.3d at
253 (holding, in case where defendant was alleged to have committed tortious
acts in Texas against Texas residents, that Texas “has an obvious interest in
providing a forum for resolving disputes involving its citizens, particularly
those disputes in which the defendant allegedly committed a tort in whole or in
part in Texas”).
This factor weighs in favor of exercising jurisdiction in
Texas.
3.                
Plaintiff’s
interest in obtaining convenient and effective relief
Shahin argues that Deyaar’s interest in obtaining
convenient and effective relief is better served by the Dubai lawsuit.  However, Deyaar is a Texas corporation and
the remaining defendants are all Texas residents.  Furthermore, the property that was the
subject of the allegedly fraudulent transaction is situated in Texas.  Because Deyaar filed its suit here, we can
presume that it does not find litigating in Texas to be inconvenient or
ineffective.  See Waterman S.S. Corp. v. Ruiz, No. 01-10-00516-CV, 2011 WL
4089416, at *30 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, pet. filed) (quoting
E.I. DuPont de Nemours & Co. v.
Bailey, 986 S.W.2d 82, 84–85 (Tex. App.—Beaumont 1999, pet. dism’d
w.o.j.)).
Finally, even if it would be more convenient for the
plaintiffs to litigate in another forum, like Dubai, the issue of whether a
particular forum is more or less convenient is a question for a forum non
conveniens case, not a special appearance. 
See id. (citing Bailey, 986 S.W.2d at 85); see also Guardian Royal, 815 S.W.2d at
231 (recognizing that most considerations that nonresident defendant can raise
to argue that jurisdiction is unreasonable “usually may be accommodated through
means short of finding jurisdiction unconstitutional. . . .  [A] defendant claiming substantial
inconvenience may seek a change of venue.”) (quoting Burger King, 471 U.S. at 477, 105 S. Ct. at 2185).
This factor weighs in favor of exercising jurisdiction in
Texas.
4.                
Interests
of other jurisdictions affected by assertion of jurisdiction
The final factor requires us to examine the interests of
the international judicial system and the interests other jurisdictions, such
as the U.A.E., have in furthering fundamental substantive social policies.  Neither party asserts that there is another
state of the United States with an interest in this litigation.  Shahin argues that it would more properly be
resolved in Dubai.  However, Shahin and
Deyaar’s parent corporation, Deyaar Dubai, which is not a party to this
litigation, are the only two residents of Dubai.  The plaintiff and all of the remaining
defendants are Texas residents.  The
property involved is located in Texas and most of the business transacted in
acquiring the property was accomplished in Texas.  Furthermore, Shahin has also contested the jurisdiction
of the Dubai courts.
Few of the obstacles Shahin complains of would be
substantially lessened if we were to find that exercise of jurisdiction here
would be unfair—he would still need to retain counsel who could evaluate
evidence and witnesses in English and his communications would still be
restricted and supervised to the same degree. 
Shahin does not identify any particular social policies of Dubai that
would be better served by this court deferring jurisdiction.
Thus, we conclude that these factors weigh in favor of
exercising jurisdiction in Texas.
Considering all of these factors in light of Shahin’s
contacts with Texas, we conclude that the Texas courts’ exercise of
jurisdiction in this case comports with traditional notions of fair play and
substantial justice.
We overrule Shahin’s second issue.
                                                                                                                                                                   
Conclusion
We affirm the order of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel consists of Justices Keyes, Higley, and
Massengale.
 
 




[1]           The other defendants include Elegant
Development Group, Inc., Mowafac Jabri, American National Title Company, George
J. Prappas, Kevin Staloch d/b/a Staloch Realty Services, Syed Rizwan “Ray”
Mohiuddin, Ramez Building Development, Inc., and Rula Jabri.  These parties are not parties to this appeal.


[2]           See
Tex. Bus. & Com. Code Ann.
§ 27.01 (Vernon 2009).
 


[3]           See
Tex. Civ. Prac. & Rem. Code Ann.
§ 134.001–134.005 (Vernon 2011).


[4]           Deyaar also points to the following
contacts Shahin has with Texas, which, it argues, support the exercise of
general jurisdiction over him: the presence of his family in Texas, Shahin’s
formation of two other corporations in Texas, his ownership of real property in
Texas at the time of the fraudulent transaction, his former residency in this
state, his registration as a voter and a licensed driver in this state, his
frequent visits to Texas, and his numerous e-mail and phone contacts with
Texas.  In light of our holding that the
trial court could properly exercise specific jurisdiction over Shahin, we do
not need to analyze the sufficiency of these contacts to establish general
jurisdiction over him.  See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002) (holding
that defendant’s contacts with forum can give rise to specific jurisdiction or
general jurisdiction).


