                                                                                       ACCEPTED
                                                                                  01-14-00703-cv
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                            3/27/2015 11:58:45 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  3/27/2015 11:58:45 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
 _______________________________________________________

                  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
 _______________________________________________________

             ORAL ARGUMENT REQUESTED
 _______________________________________________________
                                                       March 27, 2015
                     REQUEST FOR ORAL ARGUMENT

      Appellees respectfully request that the Court grant oral argument. Appellees

believe that oral argument will aid the Court in evaluating the facts and legal

arguments related to personal jurisdiction.




                                          i
                                        TABLE OF CONTENTS
REQUEST FOR ORAL ARGUMENT ......................................................................i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ....................................................................................vi

RECORD REFERENCES AND ABBREVIATIONS .............................................. 1
ISSUE PRESENTED FOR REVIEW ....................................................................... 2

STATEMENT OF FACTS ........................................................................................ 3

  A.       TSI and NC12 ............................................................................................... 3

  B.       The Lawsuit .................................................................................................. 4
SUMMARY OF ARGUMENT ................................................................................. 5

ARGUMENT ............................................................................................................. 6
  I.       Standard of Review ..................................................................................... 6

  II.      State and Federal Due Process Considerations
           and “Minimum Contacts” ............................................................................ 7
  III.     General and Specific Jurisdiction .............................................................. 11

  IV.      The Trial Court Properly Considered the Appellees’ Petition
           and the Evidence and Briefing Submitted in Response to
           Henkel’s Special Appearance .................................................................... 12

  V.       The Evidence Established That the Exercise of Specific Personal
           Jurisdiction over Henkel Was Proper ........................................................ 15

           A. Henkel Traveled to Texas for Meetings with His Co-Conspirator ....... 20

           B. Henkel Served as a Director of NC12 ................................................... 22

           C. Henkel Invested in a Texas Company .................................................. 23

           D. Henkel Previously Consented to a Texas Court’s Jurisdiction
              in Another Matter Arising from Board Service
              for Another Company ........................................................................... 23
                                                           ii
  VI.      Traditional Notions of Fair Play and Substantial Justice Support the
           Exercise of Jurisdiction over Henkel ......................................................... 24

CONCLUSION ........................................................................................................ 27




                                                         iii
                                        TABLE OF AUTHORITIES
Cases
Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002) ............6

Am. Type Culture Collection, 83 S.W.3d at 806........................................................7

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 796-97 (Tex. 2002) .18

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) ....................................8
Cartlidge v. Hernandez, 9 S.W.3d 341, 347 (Tex. App.—Houston [14th Dist.]
 1999, no pet.) ..........................................................................................................9
Critin Holdings, LLC v. Minnis, 305 S.W.3d 269, 280 (Tex. App.—14th Dist.
 2009, no pet.). .......................................................................................................10

Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 714 (Tex. App.—
 Austin 2000, pet. dism’d w.o.j. ...............................................................................7
Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.—Austin 2005, no pet...............6
Glenco Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157 (Tex. App.—
 Fort Worth 2008, no pet.) .....................................................................................15

Guardian Royal Exchange Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d
 223, 226 (Tex. 1991)...............................................................................................9

Hale v. Richey, No. 10-11-00187-CV, 2012 Tex. App. LEXIS 261, *11 (Tex.
 App.—Waco Jan. 11, 2012, no pet.).....................................................................12
J.D. Fields & Co., Inc. v. W.H. Streit, Inc., 21 S.W.3d 599, 602 (Tex. App.—
  Houston [1st Dist.] 2000, no pet.).........................................................................11

Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir.
  1992) .......................................................................................................................7
McCulley Fine Arts Gallery v. “X” Partners, 860 S.W.2d 473, 480-81 (Tex.
 App.—El Paso 1993, no writ).................................................................................6

Mem’l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex. App.—
 Houston [14th Dist.] 1992, no writ)......................................................................17


                                                              iv
Microseismic, Inc. v. TRAC Charitable Remainder Trust, No. H-12-0118, 2012
 U.S. Dist. LEXIS 101108, *19-20 (S.D. Tex. July 20, 2012) ..............................10

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007) ............19

Oechsner v. Ameritrust, 840 S.W.2d 131, 136 (Tex. App.—El Paso 1992, writ
 denied).....................................................................................................................6
Pulmosan Safety Equip. Corp., 273 S.W.3d 829, 839 (Tex. App.—Houston [14th
 Dist.] 2008, pet. denied)........................................................................................17
ReedHycalog UK. Ltd. v. United Diamond Drilling Servs., No. 6:07 CV 251, 2009
 U.S. Dist. LEXIS 77654, *9-10 (E.D. Tex. Aug. 31, 2009).................................11

Shaffer v. Heitner, 433 U.S. 186 (1977) ..................................................................17

Shavers v. Sunbelt Equip. Mktg., No. 10-11-00330-CV, 2012 Tex. App. LEXIS
  4203, *7-10 (Tex. App.—Waco May 23, 2012, no pet.) .....................................24

Tobasso v. Bearcom Group, Inc., No. 05-11-01674-CV, 2013 Tex. App. LEXIS
 7866, *11 (Tex. App.—Dallas June 26, 2013, no pet.). .......................................26
Twister B.V. v. Newton Research Partners, LP, 364 S.W.3d 428, 434 (Tex. App.—
 Dallas 2012, no pet.) .............................................................................................11

Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 742 (Tex. App.—
  Corpus Christi-Edinburg 2006, pet. denied). ........................................................10
WesternGeco L.L.C. v. Ion Geophysical Corp., 776 F. Supp. 2d 342, 355 (S.D.
 Tex. 2011) ...............................................................................................................9
Wikert v. Year One, Inc., 320 S.W.3d 522, 524 (Tex. App.—Dallas 2010, no pet.)
 ...............................................................................................................................12
Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 250 (Tex. App.—Houston [1st Dist.]
 2004, pet. denied)..................................................................................................19




                                                                v
                RECORD REFERENCES AND ABBREVIATIONS

         “CR__,” refers to the Original Clerk’s Record, filed November 24, 2014,

indicating the page number of the reference.

         “Henkel” refers to Appellant Christoph Henkel.

         “Appellees” refers to Appellees Emjo Investments, Ltd. and H.J. von der

Goltz.




                                          1
                     ISSUE PRESENTED FOR REVIEW

      Whether the District Court correctly overruled the special appearance of a

non-resident director of a Texas-based corporation alleged to have engaged in a

conspiracy with his co-directors to defraud the investors of the Texas company that

he served.




                                        2
                                STATEMENT OF FACTS
         Appellees supplement the Statement of Facts in Henkel’s Brief as follows:

A.       TSI and NC12.

         Texas Syngas, Inc. (“TSI”) was incorporated under the laws of the State of

Nevada in May 2006 and registered to do business in Texas in June 2008. (CR 225-

26). Henkel served on the TSI board of directors at the time the company registered

to do business in Texas.1 (Id.).

         NC12, Inc. (“NC12”) is a Nevada corporation that registered to do business in

Texas in August 28, 2009. (CR 228). In 2009, NC12 acquired the assets of TSI.

Henkel joined the NC12 board in or around August 2010. (CR 289-90). When

Henkel served on the NC12 board, it was comprised solely of Henkel and his co-

defendants in this action Michael Sydow (“Sydow”) and John Preston (“Preston”).

(Id.).

         At all times relevant to this litigation, TSI and NC12 maintained their

principal place of business in Houston, Texas. (See CR 225-26, 228-29, 288-89).

         NC12 filed for bankruptcy protection on October 14, 2011, under chapter 11

in the United States Bankruptcy Court for the Southern District of Texas, Houston

Division. On March 27, 2012, the Bankruptcy Court granted a motion filed by the

U.S. Trustee to convert the bankruptcy to a chapter 7 proceeding.

1
        Henkel contends that he joined the TSI board of directors in early 2008 and left the board
in the summer of 2009. (CR 276).
                                                3
B.    The Lawsuit.

     Certain of the NC12 shareholders filed this action in 2011, asserting claims

for fraud and shareholder oppression. In November 2011, additional investors and

shareholders, including Appellees, intervened, asserting claims based solely on

their individual rights as investors in NC12. (CR 52-85).

     Appellees assert that Henkel conspired with his fellow NC12 board members

Sydow and Preston in a fraudulent scheme to raise millions in investment dollars

on behalf of TSI and NC12, while denuding the companies of their assets –

valuable technology, a research and development facility, and cash. After Sydow

and Preston, aided by Henkel, enjoyed years of cash rolling in to TSI and NC12

which they used to their personal benefit, the investors were left holding only their

claims in a chapter 7 proceeding pending in the bankruptcy court sitting in

Houston, Texas.

      After the bankruptcy court determined that the shareholder oppression and

breach of fiduciary duty claims belonged to the NC12 bankruptcy estate, the NC12

bankruptcy trustee filed a separate action against Henkel, Preston, Sydow, and

others, under Cause No. 2013-61430, styled Janet Northrup Chapter 7 Trustee for

the Estate of NC12, Inc. v. Michael Collins, et al., in the 11th Judicial District




                                         4
Court, Harris County, Texas (the “NC12 Trustee Litigation”). 2 Henkel filed a

special appearance in the NC12 Trustee Litigation. As did the trial court in this

action, the court in the NC12 Trustee Litigation overruled Henkel’s special

appearance. A tentative settlement is now pending in that action.

                             SUMMARY OF ARGUMENT

       Henkel purposefully availed himself of the privilege of doing business in

Texas, and the trial court properly found that it could exercise personal jurisdiction

over Henkel. Henkel’s objections to jurisdiction rest, in large part, on the following

two insupportable premises: 1) that all jurisdictional facts must be specifically

plead in the plaintiff’s petition, and 2) that the plaintiff’s claims must be based

upon specific actions taken by the defendant while physically present within the

State of Texas.

       Contrary to Henkel’s suggestion, Texas courts may consider the allegations

in the plaintiff’s petition as well as in the briefing in response to the defendant’s

special appearance when evaluating the sufficiency of the jurisdictional arguments

and evidence. The argument and evidence before the trial court here was more than

sufficient for the trial court to find that it had personal jurisdiction over Henkel.

       In addition, although Appellees have presented evidence of action by Henkel

within the State of Texas in furtherance of the conspiracy alleged in the Appellees’

2
       Appellees request that this Court take judicial notice of the pleadings on file in the NC12
Trustee Litigation.
                                                5
Petition in Intervention (the “Petition”), physical action within the state is not a

prerequisite to the exercise of personal jurisdiction.

                                    ARGUMENT

I.    Standard of Review.

      The question of personal jurisdiction over a non-resident defendant is a

question of law reviewed on appeal de novo. Zinc Nacional, S.A. v. Bouche

Trucking, Inc., 308 S.W.3d 395, 297 (Tex. 2010). When the trial court does not file

conclusions of law or findings of fact, as here, the trial court’s judgment implies all

necessary findings of fact to support it, and the court of appeals may uphold the

decision on any legal theory supported by the evidence. See Am. Type Culture

Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002); McCulley Fine Arts

Gallery v. “X” Partners, 860 S.W.2d 473, 480-81 (Tex. App.—El Paso 1993, no

writ). As long as there is “some evidence” on any legal theory for personal

jurisdiction and the finding is not against the great weight and preponderance of

the evidence, the court of appeals must affirm the decision of the trial court.

McCulley Fine Arts, 860 S.W.2d at 480-81; Oechsner v. Ameritrust, 840 S.W.2d

131, 136 (Tex. App.—El Paso 1992, writ denied).

      Further, the trial court, “as the fact-finder, is the sole arbiter of the

witnesses’ credibility and the weight that their testimony should be afforded.”

Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.—Austin 2005, no pet.).


                                           6
Accordingly, the reviewing court should “not disturb a trial court's resolution of

conflicting evidence that turns on the credibility or weight of the evidence.” Id.

II.   State and Federal Due Process Considerations and “Minimum
      Contacts.”

      Texas courts may exercise personal jurisdiction over a nonresident if the

Texas Long-Arm statute authorizes jurisdiction and the exercise of jurisdiction “is

consistent with the state and federal due process standards.” Am. Type Culture

Collection, 83 S.W.3d at 806. The Texas Long-Arm statute authorizes the exercise

of jurisdiction over “those who do business in Texas, which includes contracting

with a Texas resident where either party is to perform the contract in whole or in

part in Texas.” Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061,

1067 (5th Cir. 1992) (emphasis added); see TEX. CIV. PRAC. & REM. CODE ANN. at

§ 17.042.

      Texas courts have generally held that the “broad language of the [Texas]

long-arm statute permits an expansive reach, limited only by the federal

constitutional requirements of due process.” Daimler-Benz Aktiengesellschaft v.

Olson, 21 S.W.3d 707, 714 (Tex. App.—Austin 2000, pet. dism’d w.o.j.).

Accordingly, the court may consider solely “whether it is consistent with federal

due process for Texas courts to assert personal jurisdiction over” the foreign

defendant. Daimler-Benz, 21 S.W.3d at 714.



                                          7
       Federal due process considerations ask whether the nonresident defendant

has “purposefully established minimum contacts with the forum state” such that

the exercise of personal jurisdiction over the nonresident “comports with

traditional notions of fair play and substantial justice.” Daimler-Benz, 21 S.W.3d at

714.

       Jurisdiction will be proper “where the contacts proximately result from

actions by the defendant himself that create a ‘substantial connection’ with the

forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).

       “The ultimate test of minimum contacts is whether the defendant

purposefully availed itself of the privilege of conducting activities in Texas,

thereby invoking the benefit and protection of Texas laws.” Daimler-Benz, 21

S.W.3d at 714. When a defendant has deliberately engaged in “significant”

activities with a state, “or has created ‘continuing obligations’ between himself and

residents of the forum,” he has availed himself of the privilege of conducting

business in that state. Burger King, 471 U.S. at 475-76 (emphasis added).

“[B]ecause his activities are shielded by ‘the benefits and protections’ of the

forum’s laws it is presumptively not unreasonable to require him to submit to the

burdens of litigation in that forum as well.” Id.

       Accordingly, a finding of “minimum contacts” requires a “substantial

connection between the nonresident defendant and the forum state” brought about


                                          8
“by action or conduct of the nonresident defendant purposefully directed toward

the forum state.” Guardian Royal Exchange Assur., Ltd. v. English China Clays,

P.L.C., 815 S.W.2d 223, 226 (Tex. 1991); see also Cartlidge v. Hernandez, 9

S.W.3d 341, 347 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“The exercise

of personal jurisdiction is proper when the contacts proximately result from actions

of the nonresident defendant which create a substantial connection with the forum

state.”). Requiring that the non-resident’s actions be “purposeful” ensures that a

nonresident defendant “will not be haled into a jurisdiction based solely upon

‘random,’ ‘fortuitous’ or ‘attenuated’ contacts or the ‘unilateral activity of another

party or a third person.’” Guardian Royal, 815 S.W.2d at 226 (quoting Burger

King, 471 U.S. at 475).

      Implicit in the requirement of a purposeful action and a “substantial

connection” is the concept of “foreseeability.” Guardian Royal, 815 S.W.2d at

227. “Indeed, so long as it creates a substantial connection with the forum State,

even a single act can support jurisdiction.” Cartlidge, 9 S.W.3d at 348; see also

WesternGeco L.L.C. v. Ion Geophysical Corp., 776 F. Supp. 2d 342, 355 (S.D.

Tex. 2011) (same).

      The Supreme Court in Burger King instructs that personal jurisdiction does

not turn on “‘mechanical’ tests” or “‘conceptualistic . . . theories of the place of

contracting or of performance.” Burger King, 471 U.S. at 479. Instead, the court


                                          9
“must review the quality and nature of the defendant’s activities in the forum in

their totality to decide whether the defendant purposefully availed itself of the

privileges offered by the forum state.” Microseismic, Inc. v. TRAC Charitable

Remainder Trust, No. H-12-0118, 2012 U.S. Dist. LEXIS 101108, *19-20 (S.D.

Tex. July 20, 2012).

      Fair play and substantial justice factors include: “(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.” Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d

720, 742 (Tex. App.—Corpus Christi-Edinburg 2006, pet. denied).

      A defendant objecting to the exercise of jurisdiction bears the burden of

presenting “a compelling case that the presence of some other consideration would

render jurisdiction unreasonable.” Burger King, 471 U.S. at 477; see also Jones,

954 F.2d at 1068. “Only in rare cases will the exercise of personal jurisdiction not

comport with fair play and substantial justice when a nonresident defendant has

purposefully availed itself of the privilege of conducting business with a forum.”

Critin Holdings, LLC v. Minnis, 305 S.W.3d 269, 280 (Tex. App.—14th Dist.

2009, no pet.). This case does not present that rare circumstance.


                                          10
III.   General and Specific Jurisdiction.

       A defendant’s contacts with a forum can support the exercise of either

specific or general jurisdiction. J.D. Fields & Co., Inc. v. W.H. Streit, Inc., 21

S.W.3d 599, 602 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

       A specific jurisdictional analysis focuses on “the relationship among the

defendants, the forum, and the litigation.” J.D. Fields, 21 S.W.3d at 603 (citations

omitted). “This analysis requires courts to inquire ‘(1) whether the defendant has

purposefully directed his activities at residents of the forum; and (2) whether the

litigation results from the alleged injuries that arise out of or relate to those

activities.” ReedHycalog UK. Ltd. v. United Diamond Drilling Servs., No. 6:07 CV

251, 2009 U.S. Dist. LEXIS 77654, *9-10 (E.D. Tex. Aug. 31, 2009). Accordingly,

even if the defendant has relatively few contacts with a forum, “the court may still

exercise personal jurisdiction over that party if the suit “‘arises out of’ or is related

to the defendant’s contacts with the forum.’” Microseismic, 2012 U.S. Dist. LEXIS

101108 at *15.

       A court may exercise general jurisdiction over a nonresident defendant when

the “nonresident defendant’s contacts are continuous and systematic,” regardless of

whether the alleged liability arises from those contacts. J.D. Fields, 21 S.W.3d at

602; see also Twister B.V. v. Newton Research Partners, LP, 364 S.W.3d 428, 434

(Tex. App.—Dallas 2012, no pet.). “General jurisdiction can be assessed by


                                           11
evaluating contacts of the defendant with the forum over a reasonable number of

years, up to the date the suit was filed.” Villagomez, 210 S.W.3d at 729.

IV.   The Trial Court Properly Considered the Appellees’ Petition and the
      Evidence and Briefing Submitted in Response to Henkel’s Special
      Appearance.
      Henkel’s repeated suggestion that personal jurisdiction must stand or fall

solely on the basis of the allegations in a plaintiff’s petition is wrong. Texas courts

confirm that the trial court may consider the allegations in the plaintiff’s petition as

well as allegations raised in response to the defendant’s special appearance to

determine whether the plaintiff satisfied its burden of pleading sufficient facts to

support the exercise of personal jurisdiction over a defendant. See Wikert v. Year

One, Inc., 320 S.W.3d 522, 524 (Tex. App.—Dallas 2010, no pet.); Ennis, 164

S.W.3d at 705; Hale v. Richey, No. 10-11-00187-CV, 2012 Tex. App. LEXIS 261,

*11 (Tex. App.—Waco Jan. 11, 2012, no pet.); see also TEX. R. CIV. P. 120a.

      The court in Hale expressly stated that the plaintiff’s petition, “as well as her

response to the defendant’s special appearance can be considered in determining

whether the plaintiff satisfied her [pleading] burden.” Hale, 2012 Tex. App. LEXIS

261, at *11.

      Accordingly, Henkel’s repeated complaint that the Appellees’ “petition”

allegedly failed to outline facts that give rise to their claims or otherwise establish

personal jurisdiction is without merit. See Ennis, 164 S.W.3d at 705 (rejecting a


                                          12
challenge to the sufficiency of the petition, noting that the “plaintiff’s original

pleadings as well as its response to the defendant’s special appearance can be

considered in determining whether the plaintiff satisfied its [pleading] burden”).

      The Petition, together with the Appellees’ briefing in response to Henkel’s

Special Appearance, identified numerous facts related to Henkel’s service on the

boards of TSI and NC12 and the claims asserted against Henkel. Specifically, the

Petition and briefing established the following in support of the exercise of

personal jurisdiction over Henkel:

       Henkel served on the board of directors of Texas-based TSI and NC12.
        (CR 60-61, 276, 289-90).

       The alleged acts and events complained of in this litigation all would
        have arisen directly from Henkel’s activities as a director of TSI and
        NC12. (See CR 60-61, 63-64).

       Henkel visited Texas on two occasions for meetings in Houston with
        Sydow. (CR 305-06).

       Henkel has engaged in business in Texas. (CR 60-61).

       NC12 is headquartered in Houston, Texas, and the tortious conduct
        alleged herein occurred in or was directed at the State of Texas. (CR 64).

      Henkel’s challenge to the Petition further fails when evaluated substantively.

Henkel contends that the Petition “does not allege any specific act Henkel did in

furtherance of the alleged fraud or the conspiracy to defraud.” (Henkel Br. at p. 30)

The challenge is easily proven wrong. For example, the Petition specifically

alleges that:

                                         13
       Henkel agreed to support the ouster of NC12 directors Johan von der
        Goltz and Aydin Muderrisoglu, 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 NC12’s assets. (See CR 75).

       Sydow, Preston, and Henkel, as a board, voted to fire Michael Collins
        (“Collins”) and bar him from company property. (CR 75).

       Preston and Henkel vetoed a settlement negotiated in Houston, Texas,
        between Sydow and Collins, both of whom are Texas residents. (CR 77).

       Sydow, Preston, and Henkel assigned all of NC12’s technology to a
        company called Oscura, Inc. Upon information and belief, Sydow created
        and controlled Oscura, Inc., as that company has the same Houston
        address as NC12 and Sydow’s law practice. (CR 78).

       All Defendants conspired to commit fraud and breaches of their fiduciary
        duties. (CR 82).
      The Appellee’s Petition expressly states that the tortious conduct alleged

therein, which would include the above allegations against Henkel, “occurred in or

was directed at the State of Texas.” (CR 64).

      Henkel’s complaint that Appellee’s failed to amend their Petition “to include

any jurisdictional facts relating to the claims the bankruptcy court remanded,” is

without merit. The factual allegations in the Petition are contained within the

general “Facts” section of the Petition and are not specific to any of the counts.

Instead, the factual allegations in the Petition and the briefing on the special

appearance, including those outlined above, are inextricably intertwined with all of

the counts.




                                        14
V.    The Evidence Established That the Exercise of Specific Personal
      Jurisdiction over Henkel was Proper.
      The acts and events complained of in this litigation all arise directly from

Henkel’s alleged tortious conduct as a director of TSI and NC12 – both Texas-

based companies. In conspiring with his co-directors at TSI and NC12, Preston and

Sydow, to raise funds through fraudulent misrepresentations and then denuding the

companies of their assets, Henkel could reasonably foresee that NC12 and its

shareholders and investors would suffer direct economic injury. Accordingly,

Henkel is subject to the exercise of personal jurisdiction by this Court under a

specific jurisdictional analysis, regardless of whether he had even ever stopped

foot in this state. See Glenco Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d

157 (Tex. App.—Fort Worth 2008, no pet.) (affirming the exercise of personal

jurisdiction over the foreign directors of a Delaware corporation headquartered in

Texas in an action arising from their board service).

      Moreover, Henkel purposefully availed himself of the privilege of doing

business in Texas by, among other things:

       Serving as a board member for SulphCo., TSI, and NC12 – all companies
        based in Texas;

       Personally investing in NC12;

       Meeting with co-conspirator Sydow in Texas on at least two separate
        occasions; and



                                         15
       Actively participating in litigation in Texas in an unrelated matter and
        consenting to a Texas court’s jurisdiction without seeking a ruling on his
        special appearance filed therein.

      Henkel cannot reasonably contend that he has not availed himself of the

privilege of conducting business in Texas or that he could not have reasonably

anticipated that he could be haled into a Texas court as a result of his purposeful

conduct as a director of TSI and NC12. As discussed below, Henkel had already

faced suit in a Texas state court in connection with his service on the board of

another company and had voluntarily consented to the Texas court’s jurisdiction in

that action before he joined the NC12 board. Henkel was certainly aware that his

service on the board of NC12 could also result in litigation in Texas. Freshly out of

the litigation in a Texas court, Henkel could easily have declined to serve on the

NC12 board – a company based in Texas – when appointed in 2010. He did not.

Instead, Henkel joined the board as part of Sydow’s maneuvers to take over control

of NC12 and thereafter conspired with Sydow in a course of conduct that

ultimately destroyed the company. (See CR 289-90).

      Assuming for argument purposes only that Henkel’s two visits to Texas

were the only contacts Henkel had with Texas, they would nonetheless present a

sufficient basis for the exercise personal jurisdiction over Henkel as the causes of

action asserted against Henkel arise directly out of his service as a TSI/NC12 board

member and those visits to Texas for meetings with his co-conspirator. See Mem’l


                                         16
Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex. App.—Houston

[14th Dist.] 1992, no writ) (even a single contact with the forum may support the

exercise of personal jurisdiction if there is a substantial connection between the

contact and the cause of action).

       Henkel’s challenge to the two meetings in Texas as supporting personal

jurisdiction is without merit. Rather than producing credible evidence that the

meetings did not occur, Henkel questions what may have transpired during those

meetings. Henkel contends that speculation about the purpose of the meetings or

what may have been discussed would be irrelevant. However, such complaints go

to the merits of the allegations, i.e. suggesting that Henkel did not conspire with

Sydow. Challenges to the merits of a claim cannot be resolved on a special

appearance. 3 See Pulmosan Safety Equip. Corp., 273 S.W.3d 829, 839 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied).

       Henkel’s reliance on Shaffer v. Heitner, 433 U.S. 186 (1977) is misplaced.

The plaintiffs in Shaffer sought to exercise jurisdiction over the officers and

directors of a Delaware corporation based solely on the fact that the company was

incorporated in Delaware. See Shaffer, 433 U.S. at 213-14. The plaintiff in Shaffer

“did not allege . . . that appellants [ ] ever set foot in Delaware.” Id. Nor did he
3
       If Henkel’s meetings with Sydow were entirely innocuous and unrelated to the
conspiracy claim asserted against Henkel, he was free to submit evidence to the trial court as to
what was in fact discussed during those meetings. He did not. He cannot escape the trial court’s
personal jurisdiction by alleging, without evidence, that the meetings could be unrelated to the
fraudulent conspiracy alleged.
                                               17
“identify any act related to his cause of action as having taken place in Delaware.”

Id.

      In stark contrast to Shaffer, the Appellees here do not contend that Henkel’s

service as a director of TSI/NC12 alone subjects him to personal liability or to

jurisdiction in a Texas court. To the contrary, as outlined above, Appellees have

alleged that Henkel engaged in activities in or directed to Texas in furtherance of

his conspiracy of fraud with Preston and Sydow that subject him to personal

liability in his individual capacity. And, unlike the plaintiff in Shaffer, Appellees

produced evidence that Henkel stepped foot into Texas at least twice in furtherance

of that conspiracy. This fact alone also distinguished the present case from BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 796-97 (Tex. 2002).

Appellees have alleged that Henkel engaged in a conspiracy with Sydow and

Preston to defraud the TSI/NC12 shareholders and investors. Appellees have

identified specific actions by Henkel in pursuit of that conspiracy, including trips

to Texas to meet with his co-conspirator.

      BMC Software is further distinguishable in that all of the key facts occurred

in Europe, not Texas, including the contract negotiations, the alleged

misrepresentations, the plaintiff’s employment pursuant to the subject contract, and

the plaintiff’s injury. 83 S.W.3d at 793. Here, the “operative facts” all arise in

connection with NC12’s corporate activities which were conducted in and from the


                                         18
company’s headquarters in Texas, with Henkel’s participation in same. Moreover,

the injury in Texas is apparent in the pending bankruptcy in a federal court sitting

in Texas and the millions in investor claims filed therein. Accordingly, unlike the

connection alleged in Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585

(Tex. 2007), there is a substantial connection between Henkel and the Appellees’

claims.

      Henkel cannot escape the court’s jurisdiction with the argument that his

participation in the corporate affairs of the company were undertaken solely in his

capacity as a director. “It is well-settled that a corporate agent can be held

individually liable for fraudulent statements or knowing misrepresentations even

when they are made in the capacity of a corporate representative.” Wright v. Sage

Eng’g, Inc., 137 S.W.3d 238, 250 (Tex. App.—Houston [1st Dist.] 2004, pet.

denied). Moreover, “a corporate officer is not protected from the exercise of

specific jurisdiction even if all of his contacts were performed in a corporate

capacity, if the officer engaged in tortious or fraudulent conduct, directed at the

forum state, for which he may be held personally liable.” Ennis, 164 S.W.3d at

707. Accordingly, regardless of whether Henkel acted in the capacity of an officer

or director of TSI and/or NC12, Henkel is subject to personal liability and personal

jurisdiction in a Texas court based upon his purposeful activity in and directed to

Texas.


                                        19
      Moreover, to the extent that the trial court judged the credibility of the

witnesses and evidence, it had a sufficient basis for judging credibility in favor of

the Appellees. As even Henkel acknowledges, Henkel made certain express

representations in his affidavit submitted in support of his Special Appearance

and/or in his discovery responses regarding his contacts with Texas that were

squarely refuted by the evidence.

      1.     Henkel Traveled to Texas for Meetings with His Co-Conspirator.

      Henkel claimed that he had not visited or traveled to Texas in the past 30

years, but that “[m]ore than thirty years ago, [he] made approximately three visits

to Texas as a representative of [his] employer at that time.” (CR 38) Appellees

submitted evidence of Henkel’s physical attendance at two meetings in Texas with

his alleged co-conspirator, which evidence Henkel made no attempt to rebut.

      Charles Austin Kimball (“Kimball”), former TSI/NC12 employee, reported

that he picked Henkel up at Houston’s Intercontinental Airport on two occasions

for meetings in Houston at the direction of Sydow. (CR 305-06). On one occasion,

Kimball drove Henkel to the Houstonian Hotel. (Id.). On the second occasion,

Kimball drove Henkel to Sydow’s law office on Woodway Drive. (Id.). These two

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

directors in furtherance of the conspiracy alleged in the Petition.




                                          20
      Kimball’s affidavit was on file with the trial court for 30 days before the

hearing on Henkel’s Special Appearance, leaving Henkel sufficient time to respond

to Kimball’s affidavit with his own affidavit, testimony, or other evidence to

establish that he never met Kimball, was never picked up at the airport for

meetings with Sydow or anyone else, and never met with Sydow in Houston.

      When Appellees filed their Motion for New Trial on August 20, 2014,

Henkel was presented with another opportunity to deny or otherwise refute

Kimball’s affidavit testimony placing Henkel in Houston for meetings with Sydow

on two separate occasions. Henkel did not take that opportunity. Instead, Henkel

suggested – in briefing only, without evidence – that he “forgot about these visits

and was not able to locate information about them when he reviewed his travel-

related documents” and complained that even if he did travel to Texas, the

Appellees did not include the allegation in the Petition. (CR 333).

      Henkel’s challenge to the evidence regarding his visits to Texas in

furtherance of the alleged conspiracy is without merit. Notably, Henkel did not file

a supplemental affidavit denying the trips or saying that he could not recall them or

looked, but could not find travel records for the trips. Henkel’s affidavit in support

of his Special Appearance is dated September 26, 2011. (CR 39). Kimball was

employed with TSI/NC12 from 2008 through 2010. (CR 305). Therefore, Henkel’s

trips to Texas would have been at some point during the period 2008 through 2010.


                                         21
Accordingly, the visits with Sydow in Texas could not have occurred any more

than four years before the date Henkel signed his affidavit. Henkel’s suggestion

that he may have forgotten about those visits is not credible in light of Henkel’s

memory of three visits to Texas “more than thirty years” before the date of his

affidavit (CR 38) and three flight connections in Texas since 2000. (CR 284-85).

      In failing to challenge Kimball’s clear and direct affidavit, Henkel tacitly

admitted the meetings with Sydow in Texas, whether or not he actually “forgot

about those visits.” (CR 333) (emphasis added).

      2.    Henkel Served as a Director of NC12.

      In his responses to interrogatories, which Henkel signed on March 3, 2014,

Henkel denied having served as a director of NC12. (CR 278-79). However, the

NC12 website identifies Henkel as a member of the NC12 board. (CR 288).

Henkel was further identified as an NC12 board member in a confidential

memorandum sent to the NC12 investors on October 21, 2010, informing the

investors of the appointment to the NC12 board of Preston and Henkel. (CR 288-

90). More importantly, in the proof of claim Henkel signed on August 2, 2012, and

filed in the NC12 bankruptcy case, Henkel identified himself as “Former Director”

of NC12. (CR 324-25).




                                        22
      3.    Henkel Invested in a Texas Company.

      Henkel asserted that he does not have any investments in Texas. (CR 39).

The assertion is disingenuous. Despite the Nevada incorporation, NC12 was very

much a Texas company. Henkel was a TSI/NC12 shareholder in his individual

capacity, with 19,230 shares listed as held in his name. (CR 295).

      4. Henkel Previously Consented to a Texas Court’s Jurisdiction in
         Another Matter Arising from Board Service for Another Company.
      Henkel asserted that “[e]xcept for this lawsuit, [he] has never been a party in

litigation in any state or federal court in Texas.” (CR 39). As the following

demonstrates, that statement was false.

      Henkel served on the board of directors of SulphCo, Inc. from December

2005 to August 2006. (CR 232, 257). On November 6, 2008, Thomas Hendrickson

filed a shareholder derivative action on behalf of the SulphCo shareholders against

Henkel and others in the 127th Judicial District Court, Harris County, Texas, styled

Thomas Hendrickson v. Rudolf W. Gunnerman, et al, under Cause Number 2008-

66743 (the “Hendrickson Litigation”). (See CR 258-270). On January 21, 2009,

Henkel filed a special appearance in the Hendrickson Litigation. The court did not

hold a hearing on Henkel’s special appearance in that action.

      On June 10, 2010, Henkel joined in an Amended Joint Motion for Entry of

Scheduling Order and Preliminary Approval of Proposed Settlement in the



                                          23
Hendrickson Litigation. 4 (CR 265-69). Henkel’s joinder in that motion was not

made subject to his special appearance. (Id.).

       On August 13, 2010, the 127th Judicial District Court entered its Order and

Final Judgment in the Hendrickson Litigation on the joint motion filed by the

parties therein. (CR 258-64). In that order, the court expressly found that it had

jurisdiction over the individual defendants, including Henkel. (CR 259). Henkel’s

joinder in the motion and final order was a general appearance in that matter that

waived his special appearance. See Tex. R. Civ. P. 120a; Shavers v. Sunbelt Equip.

Mktg., No. 10-11-00330-CV, 2012 Tex. App. LEXIS 4203, *7-10 (Tex. App.—

Waco May 23, 2012, no pet.) (motion for summary judgment filed after a special

appearance seeking dismissal for lack of personal jurisdiction was a general

appearance that waived the special appearance).

VI.    Traditional Notions of Fair Play and Substantial Justice Support the
       Exercise of Jurisdiction Over Henkel.
       Henkel asserted that it would be burdensome for him to participate in this

litigation in Texas, citing only the travel time from Europe to Texas. However, as

noted above, it appears that Henkel would be well accustomed to the travel through

his business dealings throughout the United States.




4
        This affirmative action by Henkel was just over one year before Henkel executed his
affidavit in support of his Special Appearance in this case. It is difficult to imagine that he forgot
his recent request for relief in a Texas court.
                                                 24
      Despite Henkel’s attempt to portray himself as provincial and litigation in

Texas as a hardship, online biographies and reports on Henkel describe a global

investor with a significant U.S. presence, for whom litigation in Texas would not

be a burden. Henkel is No. 1171 on Forbes list of The World’s Billionaires. (CR

296-97). Henkel is a member of the Henkel family, which controls Henkel KGaA,

a major worldwide manufacturer of chemicals, household products, and adhesives.

(CR 297-304). Henkel has been the Vice Chairman of the Shareholders’

Committee of Henkel KGaA since 1990. (Id.). Henkel served as a Director of

Clorox Co., headquartered in California, from 2000 until November 2004. (Id.).

      Henkel is also a founder and owner of Canyon Equity LLC (“Canyon

Equity”), headquartered in Larkspur, California. (CR 291-94). Henkel is described

on the Canyon Equity website as follows:

      In addition to begin an owner of Canyon Equity, Christoph Henkel
      has significant holdings in Germany and the United States. Along
      with his family, he owns a controlling interest in Henkel KGaA, a
      German conglomerate, based in Düsseldorf. He sits on the board of
      Henkel KGaA and several other of its affiliates. Christoph also invests
      in numerous technology-based companies, bio-tech companies, and
      cinema production companies. He has an extensive real estate
      portfolio in Europe and the United States. A passionate outdoorsman
      and an environmental preservationist, Christoph has acquired large
      parcels of land around the world with the purpose of conserving them
      from excessive development.

(CR 294).




                                        25
      In any multi-state dispute, “someone will always be inconvenienced.”

Tobasso v. Bearcom Group, Inc., No. 05-11-01674-CV, 2013 Tex. App. LEXIS

7866, *11 (Tex. App.—Dallas June 26, 2013, no pet.). Accordingly, the argument

is frequently rejected as a basis for denying jurisdiction. Id. Here, Henkel failed to

produce any credible argument or evidence that litigation in a Teas court would be

unduly burdensome.

      Henkel further claimed that Texas has little interest in providing a forum for

this litigation, asserting that the “injury occurred outside of Texas.” The argument

was simply wrong. NC12 – the company driven into bankruptcy by the

Defendants’ fraudulent conduct – was doing business in Texas and is now a

chapter 7 debtor in a federal court here in this state. Accordingly, the trial court has

an interest in adjudicating the claims asserted herein which arise from NC12’s

operations in this state. See Tobasso, 2013 Tex. App. LEXIS 7866, at *11.

      Although Henkel also complained about the restrictions on the subpoena

power of the trial court, he failed to identify any witnesses or evidence that would

be necessary for the litigation of this matter beyond the range of the trial court’s

subpoena power. Moreover, given the pending bankruptcy proceedings, the logical

presumption is that the books and records of the company and other evidence

relevant to these proceedings reside here in Houston.




                                          26
                                  CONCLUSION

      For all of the above-mentioned reasons, this Court is hereby respectfully

requested to affirm the order of the District Court.

                                               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 March 27, 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
                                          27
                     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 6,626 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




                                      28
