                                                                                     ACCEPTED
                                                                                  01-14-00703-cv
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           11/30/2015 4:59:23 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  11/30/2015 4:59:23 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
 _______________________________________________________

        RESPONSE TO MOTION FOR REHEARING
 _______________________________________________________
Kevin Dubose                            Kelley M. Keller
Texas Bar No. 06150500                  Texas Bar No. 11198240
ALEXANDER, DUBOSE, JEFFERSON            Tracey N. Ellison
  & TOWNSEND LLP                        Texas Bar No. 15054720
1844 Harvard Street                     ELLISON & KELLER, P.C.
Houston, Texas 77008-4342               5120 Woodway, Suite 6019
Telephone: 713-523-2358                 Houston, Texas 77056
Facsimile: 713-522-4553                 Telephone: 713-266-8200
kdubose@adjtlaw.com                     Facsimile: 713-266-8201
                                        kkeller@ellison-keller.com
Alexandra Albright                      tellison@ellison-keller.com
Texas Bar No. 21723500
ALEXANDER, DUBOSE, JEFFERSON
  & TOWNSEND LLP                        Attorneys for Appellees
515 Congress, Suite 2350
Austin, Texas 78701-3562
Telephone: 512-482-9300
Facsimile: 512-482-9303
aalbright@adjtlaw.com
                                                 Table of Contents
Table of Contents ........................................................................................................i

Table of Authorities ................................................................................................. iii

Record References & Abbreviations ......................................................................... v

Summary of Argument .............................................................................................. 1
Preliminary Comment on the Record ....................................................................... 1

Argument.................................................................................................................... 5

  I.        Consistent with case law, the Opinion analyzes all purposeful
            contacts together, rather than isolating any single contact
            to establish jurisdiction ................................................................................ 5

            A. Consistent with National Industrial Sand, the Opinion
               rests upon Henkel’s purposeful contacts with Texas,
               not the mere allegation of a conspiracy ................................................ 6
            B. Consistent with Moncrief, the Opinion rests upon allegations
               connecting Henkel’s meetings with a co-conspirator in Texas
               to the Investors’ claims and not a “mere meeting” in Texas ................ 7
            C. Consistent with the fiduciary shield doctrine, the Opinion
               rests upon Henkel’s purposeful contacts with Texas,
               not mere corporate board membership ............................................... 10

  II.       The Opinion follows Moki Mac in considering only Henkel’s contacts
            that are substantially connected to the operative facts of the litigation ..... 13

            A. Moki Mac rejected the substantive relevance test
               and adopted the substantial connection test for
               the “arising from” prong of specific jurisdiction ................................ 13

            B. The purposeful contacts upon which the Opinion relies are
               substantially connected to the operative facts of the litigation ........... 16

Prayer ....................................................................................................................... 18


                                                               i
Certificate of Service ............................................................................................... 19

Certificate of Compliance ........................................................................................ 20




                                                           ii
                                          Table of Authorities
Cases
BMC Software Belgium, N.V. v. Marchand,
   83 S.W.3d 789 (Tex. 2002) ....................................................................... 14, 15

Brown v. General Brick Sales Co., Inc.,
    39 S.W.3d 291 (Tex. App.—Fort Worth 2001, no pet.) ..................................11
Cadle v. Graubart,
    990 S.W.2d 469 (Tex. App.—Beaumont 1999, no pet.) .................................12

D.H. Blair Investment Banking Corp. v. Reardon,
    97 S.W.3d 269 (Tex. App.—Houston [14th Dist.]
    2002, pet. dism’d w.o.j.) ....................................................................................9
Ennis v. Loiseau,
    164 S.W.3d 698 (Tex. App.—Austin 2005, no pet.) .........................................7
Garner v. Furmanite Australia Pty., Ltd.,
    966 S.W.2d 798 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).............12
Hotel Partners v. Craig,
    993 S.W.2d 116 (Tex. App.—Dallas 1994, pet. denied) ...................................8

M & F Worldwide Corp. v. Pepsi-Cola Metropolitan Bottling Co.,
   453 S.W.3d 492 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) ...............7

Michiana Easy Livin’ Country, Inc. v. Holten,
    168 S.W.3d 777 (Tex. 2005) ..............................................................................9

Moki Mac River Expeditions v. Drugg,
    221 S.W.3d 569 (Tex. 2007) ......................................................... 13, 14, 15, 16
Moncrief Oil International, Inc. v. OAO Gazprom,
   414 S.W.3d 142 (Tex. 2013) ......................................................... 7, 8, 9, 10, 17

National Industrial Sand Association v. Gibson,
    897 S.W.2d 769 (Tex. 1995). .........................................................................6, 7

Orthoflex, Inc. v. ThermoTek, Inc.,
    983 F. Supp. 2d 866 (N.D. Tex. 2013)...............................................................4
                                      iii
Spoljaric v. Percival Tours, Inc.,
     708 S.W.2d 432 (Tex. 1986) ..............................................................................4

Stull v. LaPlant,
     411 S.W.3d 129 (Tex. App.—Dallas 2013, no pet.) ............................. 7, 11, 12

Vosko v. Chase Manhattan Bank, N.A.,
    909 S.W.2d 95 (Tex. App.—Houston [14th Dist.] 1995, writ denied)........9, 12

Walden v. Fiore,
    134 S. Ct. 1115 (2014) .................................................................................8, 17

Wright v. Sage Engineering, Inc.,
    137 S.W.3d 238 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)...... 11, 12

Zimmerman v. Glacier Guides, Inc.,
    151 S.W.3d 700 (Tex. App.—Waco 2004, no pet.)...........................................7




                                                       iv
                      Record References & Abbreviations

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

indicating the page number of the reference.

      “SCR#” refers to the First Supplemental Clerk’s Record, filed December 29,

2014, indicating the page number of the reference.

      “MFR” and “Motion” refer to Henkel’s Motion for Rehearing.

      “Opinion” and “Op.” refer to the Court’s Opinion in this matter, issued

August 27, 2015.

      “Kimball Affidavit” refers to the Affidavit of Charles Austin Kimball, dated

July 1, 2014, and submitted in support of the Investors’ Response to Henkel’s

Special Appearance. CR305-06.

      “Henkel” refers to Appellant Christoph Henkel.

      “Investors” refers to the Intervenors named in the Petition in Intervention,

filed November 11, 2011.

      “NC12” refers to both NC12 and its predecessor entity Texas Syngas, Inc.

(“TSI”).

      “Sydow” refers to Defendant Michael D. Sydow.




                                         v
                              Summary of Argument

      Henkel’s Motion fails to identify anything in the Opinion that contravenes

Texas authority. Instead, Henkel relies on insupportable characterizations of the

Opinion and the Record and misstatements of law. The Opinion correctly examines

the Record and concludes that the evidence and unrefuted allegations support

findings of Henkel’s purposeful Texas contacts related to the claims.

    The Opinion correctly examines Henkel’s Texas contacts and finds them
     sufficient to support jurisdiction without imputing the contacts of Henkel’s
     co-conspirators or adopting civil conspiracy as an “independent basis for
     jurisdiction.”

    The Opinion correctly disregards the fiduciary shield doctrine because it is
     inapplicable where direct claims are asserted against board members.

    The Opinion correctly concludes that Henkel’s contacts with Texas are
     substantially connected to the operative facts of the litigation.

                      Preliminary Comment on the Record

      Henkel’s Motion diverts attention from the central question: Does the

Record support the exercise of specific personal jurisdiction over Henkel? To re-

focus, we begin there.

      The Investors alleged that the officers and directors of NC12—a Texas-

based company—operated the company as a vehicle to defraud investors, landing

the company in a Texas bankruptcy court. Henkel is one of those directors and was

sued as a co-conspirator in the fraud.


                                         1
       Specifically, the Investors alleged that:

        Henkel conducted business in Texas. CR60-61.

        NC12 was headquartered in Texas, and the alleged tortious conduct
         occurred in Texas. See CR64, 225-26, 228-29, 288-89.1

        The conspiracy arises directly from Henkel’s activities as a director of
         NC12. See CR60-61, 63-64, 82, 214, 317, 320.

       Henkel filed his own affidavit broadly denying contacts with Texas. CR33-

34. The Investors responded with uncontested evidence discrediting Henkel’s

affidavit. Specifically:

        Henkel misrepresented his travel to Texas. Henkel stated that he had
         not visited or traveled to Texas in the past 30 years. CR38. The Kimball
         Affidavit established that Henkel visited Texas twice to meet with his
         alleged co-conspirator Sydow in Houston. CR305-06.

        Henkel misrepresented his investments in Texas. Henkel stated that he
         did not have any investments in Texas. CR39. However, Henkel owned
         19,230 shares in Texas-based NC12. CR295.

        Henkel misrepresented his participation in litigation in Texas. Henkel
         stated that, other than this lawsuit, he had never been a party to litigation
         in any state or federal court in Texas. CR39. The evidence proved this
         statement to be false. See CR258-70.

        Henkel misrepresented his service as a director of NC12. Henkel
         denied being a director of NC12. CR276, 278-79. But Henkel served on
         the board of directors of TSI from early 2008 to May 2009, and on the
         board of NC12 in 2010. CR60-61, 276, 289-90.



1
       Henkel neither plead nor proved that the alleged fraudulent misrepresentations issued
from any place other than NC12’s Texas headquarters.

                                             2
       Accordingly, the Opinion correctly observed that the trial court “reasonably

could have concluded that Henkel’s characterization of his Texas contacts as

unrelated to any alleged conspiracy was not credible. . . .” Op.10. And it correctly

refused to “disturb a trial court’s resolution of conflicting evidence that turns on

the credibility or weight of the evidence.” Op.6.

       Furthermore, Bankruptcy Judge Isgur’s Memorandum Opinion 2 does not

limit the scope of this action or the specific jurisdiction analysis. See MFR3.

Henkel claims that Judge Isgur dismissed claims for his alleged “post-purchase

misconduct” and remanded only claims related to “pre-investment” activity.

However, the assertion overstates the effect of Judge Isgur’s opinion.

       In dismissing certain claims as belonging to the bankruptcy estate,3 Judge

Isgur held that the Investors could not “seek damages for dilution of corporate

value due to the alleged stripping or misappropriation of corporate assets.” SCR29

(emphasis added). But by limiting the damages that could be recovered, Judge

Isgur did not limit the evidence relevant to the fraud and conspiracy to commit




2
     Memorandum Opinion in In re NC12, Inc., Case No. 11-38794, issued August 31, 2012.
SCR11-41.
3
        Judge Isgur dismissed the Investors’ shareholder oppression and breach of fiduciary duty
claims for lack of standing because they were derivative and belonged to the bankruptcy estate,
not because they lacked merit. SCR22, 30, 32. Judge Isgur remanded to state court the Investors’
direct claims for fraud and conspiracy to commit fraud based upon the same facts. SCR38.
                                               3
fraud claims which he found properly belonged to and could be asserted by the

Investors. SCR29.4

       In any event, despite Henkel’s statement that “the vast majority of the

allegations . . . in no way concern such alleged misrepresentations and reliance at

the time of Intervenor’s investments,” MFR3 (emphasis in original), the Record

shows otherwise. The investment period began in December 2007 and continued

through September 2010,5 when NC12 converted notes to shares. See CR54-58,

70-71, 78. The Kimball Affidavit established that Henkel met with Sydow in Texas

twice during that period, and Henkel failed to controvert that evidence. Nor does

he point to any other contacts relied on in the Opinion that are “post-purchase.”




4
        Post-misrepresentation conduct may evidence a party’s intent at the time the
misrepresentation was made. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.
1986) (“While a party’s intent is determined at the time the party made the representation, it may
be inferred from the party’s subsequent acts after the representation is made.”); Orthoflex, Inc. v.
ThermoTek, Inc., 983 F. Supp. 2d 866, 879 (N.D. Tex. 2013).
5
        The last new investment by an Investor was a $100,000 investment by Emjo Investments,
Ltd. in August 2010. CR55.
                                                 4
                                     Argument

      The Motion attacks the Opinion in two ways: (1) claiming the contacts

identified in the Opinion are not sufficient on their own to justify jurisdiction, and

(2) claiming that other contacts identified in the Opinion are not sufficiently related

to the causes of action alleged to be jurisdictionally significant. Both arguments

fail. The Opinion properly concludes that Henkel’s meetings with an alleged co-

conspirator “demonstrate Henkel’s purposeful availment of the Texas forum, rather

than simply a fortuitous connection to it” and that “[w]hen coupled with

allegations of a conspiracy,” Henkel’s meetings in Texas “provide a nexus for the

suit to be brought in a Texas court.” Op.10.

I.    Consistent with case law, the Opinion analyzes all purposeful contacts
      together, rather than isolating any single contact to establish
      jurisdiction.
      Henkel argues that the Opinion improperly relies on “a mere meeting

between alleged co-conspirators in Texas” MFR4 (emphasis added), and “mere

membership on a board of directors.” MFR10 (emphasis added). But the Opinion

does not focus on merely one of these contacts. A review of the authorities and the

Opinion confirms that Henkel’s argument is without merit.




                                          5
      A.     Consistent with National Industrial Sand, the Opinion rests upon
             Henkel’s purposeful contacts with Texas, not the mere allegation
             of a conspiracy.
      In National Industrial Sand, 6 the Texas Supreme Court “decline[d] to

recognize the assertion of personal jurisdiction over a nonresident defendant based

solely upon the effects or consequences of an alleged conspiracy with a resident in

the forum state.” 897 S.W.2d at 773 (emphasis added). The opinion made clear that

a court may not impute the forum contacts of a co-conspirator to a non-resident to

establish jurisdiction. Instead, the court said, “we restrict our inquiry to whether

[the non-resident] itself purposefully established minimum contacts such as would

satisfy due process.” Id.

      Henkel contends that the Opinion contravenes National Industrial Sand by

erroneously founding jurisdiction on the allegation of a conspiracy “standing

alone,” resulting in an “expansion of the jurisdictional potential of Intervenors’

conspiracy claim.” MFR4-5. However, the Opinion correctly notes that to find

specific jurisdiction, the Court must conclude “that Henkel’s purposeful conduct,

not another’s, caused the contact.” Op.9 (emphasis added). The Opinion then

examines Henkel’s contacts with Texas and concludes that Henkel’s meetings

with an alleged co-conspirator were purposeful, “rather than simply a fortuitous


6
      Nat'l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769 (Tex. 1995).

                                             6
connection” to Texas. Op.10. Thus, the Opinion is consistent with National

Industrial Sand.

       B.     Consistent with Moncrief, the Opinion rests upon allegations
              connecting Henkel’s meetings with a co-conspirator in Texas to
              the Investors’ claims and not a “mere meeting” in Texas.
       Henkel also suggests that the Opinion contravenes Moncrief 7 by finding

personal jurisdiction based on a “mere meeting” with an alleged co-conspirator in

Texas, without evidence that the “purpose or effect” of those meetings was to

further the fraud. MFR5-6, 9-10. Yet, (1) the Investors alleged the meetings were

in furtherance of the fraud; (2) Henkel submitted no evidence to the contrary; and

(3) Henkel’s subjective purpose in meeting in Texas is irrelevant to the

jurisdictional inquiry.

       As the Opinion states, a court considers “both the plaintiff’s original

pleadings and its response to the defendant’s special appearance in determining

whether the plaintiff satisfied its burden to allege jurisdictional facts.” Op.11. 8

Henkel cites no authority to the contrary, but instead ignores portions of the




7
       Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013).
8
       See also M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 453 S.W.3d 492,
503 (Tex. App.—Houston [14th Dist.] 2014, pet. filed); Stull v. LaPlant, 411 S.W.3d 129, 134
(Tex. App.—Dallas 2013, no pet.); Ennis v. Loiseau, 164 S.W.3d 698, 705 (Tex. App.—Austin
2005, no pet.); Zimmerman v. Glacier Guides, Inc., 151 S.W.3d 700, 704 (Tex. App.—Waco
2004, no pet.).
                                             7
Record by claiming “there is no allegation in the Petition in Intervention about the

two supposed meetings between Sydow and Henkel.” MFR9.

       Henkel met at least twice with his alleged co-conspirator in Texas,9 and the

pleadings expressly allege that the claims against Henkel arise from his activities

as a director of NC12 and that Henkel’s Texas visits with a co-director were in

furtherance of the alleged conspiracy. See CR60-61, 63-64, 82, 214, 317, 418, 421.

As the Opinion observes, because the trial court rejected Henkel’s false affidavit

and Henkel offered no additional evidence to controvert the allegations that the

meetings in Houston were in furtherance of the conspiracy to defraud investors, the

Investors’ allegations are taken as true for purposes of the special appearance.

Op.11. There is no evidence in the Record to support Henkel’s speculation that his

meetings with Sydow “could just as easily be” “legitimate meetings between board

members” as they could be “untoward meetings between co-conspirators.”

MFR13.10 Henkel introduced no evidence showing he did not discuss defrauding

the Investors when he met with Sydow. Thus, as the Opinion states, “Henkel did


9
        See Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (noting that “although physical
presence in the forum is not a prerequisite to jurisdiction, physical entry into the State … is
certainly a relevant contact”).
10
       This Record resembles that concerning the trade secret claim in Moncrief (where the
record showed the meetings were alleged to have been in furtherance of the claim) and is distinct
from those concerning the tortious interference claim in Moncrief and the conspiracy claim in
Hotel Partners v. Craig, 993 S.W.2d 116 (Tex. App.—Dallas 1994, pet. denied) (where there
were no allegations connecting the meetings to the conspiracy) (cited at MFR6).
                                               8
not satisfy his burden to negate allegations that he participated in acts in

furtherance of the conspiracy in Texas.” Op.12-13.

       Moreover, Henkel’s intent concerning those meetings is irrelevant. As

Moncrief made clear, the personal jurisdiction inquiry is concerned with “physical

fact” rather than intent. 414 S.W.3d at 147. The defendants in Moncrief claimed

that their intent in attending Texas meetings that resulted in their receipt of trade

secrets was to discuss a matter unrelated to trade secrets and thus unrelated to the

litigation. Id. at 153-54 & n.10. The court held that “[r]egardless of the defendants’

subjective intent, their Texas contacts are sufficient to confer specific jurisdiction

over the defendants as to the trade secrets claim.” Id. at 147. The court explained:

       [T]he business contacts needed for specific personal jurisdiction over
       a nonresident defendant “are generally a matter of physical fact, while
       tort liability (especially misrepresentation cases) turns on what the
       parties thought, said, or intended. Far better that judges should limit
       their jurisdictional decisions to the former rather than involving
       themselves in trying the latter.
414 S.W.3d at 147 (quoting Michiana Easy Livin’ Country, Inc. v. Holten, 168

S.W.3d 777, 791 (Tex. 2005)).11




11
        The Opinion is similarly consistent with D.H. Blair Inv. Banking Corp. v. Reardon, 97
S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2002, pet. dism’d w.o.j.) and Vosko v. Chase
Manhattan Bank, N.A., 909 S.W.2d 95, 99 (Tex. App.—Houston [14th Dist.] 1995, writ denied)
(cited at MFR4-5), neither of which suggests that a plaintiff must establish an unlawful overt act
in the state as Henkel suggests.
                                                9
       The key physical fact here is Henkel’s undisputed purposeful presence in

Texas for meetings with Sydow that are alleged to be in furtherance of the

conspiracy to defraud investors of a Texas-based company.12 Whether the meetings

were “legitimate meetings between board members” as Henkel only now contends,

is a question to be addressed at the trial on the merits.

       C.      Consistent with the fiduciary shield doctrine, the Opinion rests
               upon Henkel’s purposeful contacts with Texas, not mere
               corporate board membership.
       Henkel claims his relevant contacts are limited to his NC12 board service, so

the Opinion is erroneous in holding that board membership, standing alone, is

sufficient to subject Henkel to specific personal jurisdiction. MFR11. However, the

Opinion correctly determined that one jurisdictionally significant contact was

Henkel’s board service, which “created ‘continuing obligations’ between himself

and a Texas-based company, the formation of which is alleged to be at the center

of the alleged fraudulent investment scheme.” 13 But it also determined that his


12
        Henkel also seems to ignore that the allegations are for conspiracy to defraud, suggesting
that the Opinion erred because it failed to confine its analysis to a cause of action for fraud.
MFR6. However, because the allegation here is for conspiracy, which is derivative of the
underlying tort of fraud, the operative facts include not only the fraud itself, but also the
conspiracy to defraud.
13
         Henkel argues that the “’continuing obligations’ concept” discussed in Moncrief is
inapplicable here because the “concept is one that permits a defendant to face suit in the forum
state of the aggrieved resident.” MFR11. However, Moncrief referred to “continuing obligations”
with citizens of the forum, not plaintiffs or aggrieved residents. The obligations just happened to
be to plaintiffs in Moncrief. The court explained that the “analysis assesses the quality and nature
of the contacts, not the quantity.” Moncrief, 414 S.W.3d at 151. Here, the quality and nature of
                                                10
meetings with Sydow were purposeful Texas contacts, all of which are
                                                                                  14
substantially connected to the claims asserted against Henkel.                         Moreover,

Henkel’s suggestion that the Opinion improperly bases personal jurisdiction on

“legitimate board service” in violation of the fiduciary shield doctrine must fail

because the fiduciary shield doctrine has no application to this case.

       This Court has recognized that the fiduciary shield doctrine15 applies only to

assertions of general jurisdiction, not specific jurisdiction. Wright v. Sage Eng’g,

Inc., 137 S.W.3d 238, 250 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). The

Opinion correctly confines its analysis to whether the Record supports the exercise

of specific jurisdiction, not general jurisdiction. Op.7. Thus, the fiduciary shield

doctrine is inapplicable.

       Henkel cites Stull v. LaPlant, 411 S.W.3d 129, 137-38 (Tex. App.—Dallas

2013, no pet.), for the proposition that the fiduciary shield doctrine can apply to a


the contacts confirm that Henkel established continuing obligations with NC12, a Texas resident,
and that this action is substantially connected to those contacts.
14
        Henkel complains that the Opinion “gave weight” to allegations regarding Henkel’s
involvement in NC12’s bankruptcy and service on the board of another Texas corporation.
MFR1, 11 at n.3, 14. However, the Opinion mentions these facts only with reference to Henkel’s
credibility and the “fairness” part of the jurisdictional analysis and does not rely on them in
determining whether Henkel’s purposeful contacts with Texas were connected to the claims.
Op.4-5, 14.
15
        “The fiduciary shield doctrine provides that corporate officers are not subject to
jurisdiction in a foreign forum where their actions are taken in a representative capacity.” Brown
v. Gen. Brick Sales Co., Inc., 39 S.W.3d 291, 297 (Tex. App.—Fort Worth 2001, no pet.), cited
in Wright, 137 S.W.3d at 250. A plaintiff can defeat that protection by showing that the
defendant was advancing his own interest or that he was an alter ego. Id.
                                               11
specific jurisdictional analysis. MFR12. However, Stull does not support applying

the doctrine here. While Stull rejected the “broad statement” that the doctrine had

no application at all to specific jurisdiction, it agreed that that the doctrine does not

apply “when a plaintiff claims the agent personally committed a tort and at least

some of the agent’s tortious conduct involved contacts with Texas.” Id. at 137.

       Stull explained that the “application of the fiduciary shield doctrine is

determined by whether or not the corporate agent can be held personally liable

under applicable law.” 411 S.W.3d at 137. Accordingly, it applied the fiduciary

shield doctrine to a contract claim where the individual defendants acted solely in

their capacity as executives of the corporate defendant, and had no individual

contractual obligation or liability.16 Thus, even Stull would agree that the fiduciary

shield doctrine “does not protect a corporate officer from specific personal

jurisdiction as to intentional torts or fraudulent acts for which he may be held

individually liable.” Wright, 137 S.W.3d at 250. Therefore, the Opinion properly

considered Henkel’s service on the board of a Texas-based corporation as a

relevant contact based upon his exposure to personal liability. See Op.11.

16
        The other opinions Henkel cites on this issue are similarly inapplicable. MFR12. See
Cadle v. Graubart, 990 S.W.2d 469 (Tex. App.—Beaumont 1999, no pet.) (applying the
fiduciary shield doctrine because the plaintiff had not stated a claim for individual liability);
Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 803 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) (refusing to find general jurisdiction over subsidiary that was not the alter ego
of the parent ); Vosko, 909 S.W.2d at 99 (refusing to find general jurisdiction over individual
who was not the alter ego of the corporation).
                                                12
II.    The Opinion follows Moki Mac in considering only Henkel’s contacts
       that are substantially connected to the operative facts of the litigation.

       A.     Moki Mac rejected the substantive relevance test and adopted the
              substantial connection test for the “arising from” prong of specific
              jurisdiction.

       Henkel argues throughout his Motion that the Opinion is wrong because it

finds jurisdiction when there is not a sufficient relationship between his Texas

contacts and the conspiracy claim alleged against him. In effect, he argues that the

Opinion does not properly evaluate the “arising from” prong of the jurisdictional

analysis and considers contacts unrelated to the claims against him. However,

Henkel misconstrues the “arising from” analysis.

       The Texas Supreme Court’s opinion in Moki Mac controls the “arising

from” analysis in Texas courts.17 In that opinion, the court examined four different

approaches to the analysis, and adopted the “substantial connection” test. “[F]or a

nonresident defendant’s forum contacts to support an exercise of specific

jurisdiction, there must be a substantial connection between those contacts and the

operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585.

       Henkel’s Motion never mentions the substantial connection test. Instead,

Henkel suggests that the test is whether Henkel “conducted any activity in Texas

17
        Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575-6 (Tex. 2007). As Moki
Mac points out, “[t]he United States Supreme Court has provided relatively little guidance on the
‘arise from or relate to’ requirement.” Moki Mac, 221 S.W.3d at 576. No subsequent opinion of
either court has addressed the issue.
                                               13
actually connected” to the claim, and elsewhere asserts that “specific jurisdiction

analysis requires a reviewing court to look only at the conduct pertinent to the

cause of action.” MFRv, 2 (emphasis added). Henkel also claims that a fraud claim

arises from Texas contacts only if the misrepresentation and the reliance occurred

in Texas. MFR6, 8. Thus, he argues that that “the nature of a fraud claim forecloses

[Henkel’s] Texas meetings from having any bearing on the appropriate

jurisdictional decision,” suggesting that specific jurisdiction is appropriate only

upon a finding that Henkel himself made a misrepresentation in Texas. MFR8. In

effect, Henkel asks this Court to apply the “substantive relevance” test that was

specifically rejected in Moki Mac.

       Henkel suggests that BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

789 (Tex. 2002), predating Moki Mac by five years, is the controlling authority,

requiring that misrepresentation or reliance, elements of a fraud claim, occur in

Texas. However, BMC does not elaborate on the “arising from” analysis. Instead, it

focuses on the particular facts of the dispute (called “operative facts” in Moki

Mac), which undeniably were centered in Europe.18




18
       The case concerned a Belgian plaintiff, employed in Belgium, who negotiated with other
Belgians for employment with BMC, a Belgian corporation. BMC was the wholly-owned
subsidiary of a Houston-based company, and the plaintiff alleged that his employment agreement
was discussed between the Belgian BMC representatives when they were in Houston.
                                             14
      Nevertheless, because it seemingly requires that an element of the cause of

action occur in Texas, the opinion appears to apply the “substantive relevance”

test, which Moki Mac later rejected. The court in Moki Mac described the

substantive-relevance approach as a structured, restrictive view of relatedness that

“requires forum-related contacts to be substantively relevant, or even necessary, to

proof of the claim.” Moki Mac, 221 S.W.3d at 582. However, the court rejected

such a “categorical approach” to jurisdiction as “run[ning] the danger of posing too

narrow an inquiry.” Id. at 583. The court explained:

      Although ostensibly imbued with a bright-line benefit, in practice it
      would require a court to delve into the merits to determine whether a
      jurisdictional fact is actually a legal cause of the injury. Moreover,
      ease of application should not overshadow the principal constitutional
      due-process inquiry, which is whether the defendant has “certain
      minimum contacts with [the forum state] such that the maintenance of
      the suit does not offend ‘traditional notions of fair play and substantial
      justice.’”
Moki Mac, 221 S.W.3d at 583 (citations omitted).

      In fact, the claims against the non-resident defendant in Moki Mac included

a misrepresentation claim. The Texas plaintiffs in Moki Mac alleged that the

defendant made material misrepresentations in written materials sent to them in

Texas, upon which they relied. Moki Mac, 221 S.W.3d at 576. Under Henkel’s

analysis of BMC, the court in Moki Mac should have found specific jurisdiction

because the misrepresentation and reliance occurred in Texas. However, the court

                                         15
determined there was no jurisdiction in Moki Mac because, despite the contacts’

substantive relevance, they were not substantially connected to the claim. Instead

of comparing the elements of the claim to the contacts, the court examined “the

operative facts of the Druggs’ suit” which the court found to “concern principally

the guides’ conduct of the hiking expedition and whether they exercised reasonable

care.” Moki Mac, 221 S.W.3d at 585.

        The Opinion is consistent with Moki Mac, stating that the jurisdictional

analysis focuses on the “relationship among the defendant, the forum, and the

litigation, [to] determine whether a substantial connection exists between Henkel’s

contacts with Texas and the operative facts of the litigation.” Op.8 (citing Moki

Mac).

        B.   The purposeful contacts upon which the Opinion relies are
             substantially connected to the operative facts of the litigation.

        The Opinion also correctly applies the substantial connection test,

concluding that Henkel’s purposeful contacts were substantially connected to the

operative facts of the litigation. Rather than address the “substantial connection”

test, Henkel appears to count contacts, which he suggests are far fewer than those

of the defendant in Moki Mac, and makes an emotional appeal, urging that Moki

Mac was a far more compelling case as it was brought by Texas plaintiffs and

involved the death of a child. MFR14-15.

                                        16
       But the plaintiff’s relationship to the forum is not dispositive,19 and as the

Opinion notes, jurisdiction can result from a defendant’s single purposeful act in

the forum. Op.9. Both Moki Mac and Henkel had purposeful contacts in Texas, but

only Henkel’s were substantially connected to the claims asserted against him.

       Here, the Investors asserted a claim against Henkel for conspiracy to defraud

in connection with the Texas-based corporation of which Henkel was a director.

The Opinion carefully delineates the elements of civil conspiracy, and correctly

concludes that the operative facts are centered in Texas. Op.12-13. The operative

facts concern the operations of a Texas-based company, meetings in Texas

between the company’s officers and directors, including Texas resident Sydow,

and the value of the Texas-based company’s securities. Therefore, Henkel’s

meetings in Texas with Sydow allegedly in furtherance of the fraud and his service

as a member of the board of directors of the Texas-based company are

substantially connected to the operative facts.

       The court in Moncrief found that the defendants’ alleged receipt of trade

secrets in a Texas meeting was “the crux” of the misappropriation claim. Moncrief,

414 S.W.3d at 154. Here, Henkel’s meetings are “the crux” of the conspiracy

claim. “When coupled with allegations of a conspiracy,” Henkel’s meetings in

19
        See Walden, 134 S. Ct. at 1122 (focusing on the defendant’s contacts, ignoring the
plaintiffs’ state of residence, and refusing to allow “a plaintiff’s contacts with the defendant and
the forum to drive the jurisdictional analysis”).
                                                17
Texas “provide a nexus for the suit to be brought in a Texas court.” Op.10.

Moreover, the Opinion correctly notes that additional evidence “connects Henkel

to Texas and the allegations in the lawsuit.” Op.11.

                                      Prayer

      We respectfully request that the Motion for Rehearing be denied.

                                              Respectfully Submitted,

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

                                              Kevin Dubose
                                              Texas Bar No. 06150500
                                              ALEXANDER, DUBOSE, JEFFERSON
                                                & TOWNSEND LLP
                                              1844 Harvard Street
                                              Houston, Texas 77008-4342
                                              Telephone: 713-523-2358
                                              Facsimile: 713-522-4553
                                              kdubose@adjtlaw.com




                                         18
                                             Alexandra Albright
                                             Texas Bar No. 21723500
                                             ALEXANDER, DUBOSE, JEFFERSON
                                               & TOWNSEND LLP
                                             515 Congress, Suite 2350
                                             Telephone: 512-482-9300
                                             Facsimile: 512-482-9303
                                             aalbright@adjtlaw.com

                                             Attorneys for Appellees


                               Certificate of Service

      I certify that this Response to Motion for Rehearing was served on the
following attorneys of record by eservice on November 30, 2015.

     Charles Eskridge
     Emily M. Smith
     Quinn Emanuel Urquhart & Sullivan, LLP
     711 Louisiana Street, Suite 500
     Houston, Texas 77002
     charleseskridge@quinnemanuel.com
     emilysmith@quinnemanuel.com

     Attorneys for Appellant

                                              /s/ Kelley M. Keller
                                             Kelley M. Keller




                                        19
                          Certificate of Compliance

      I certify that this brief complies with the typeface and word-count
requirements set forth in the Texas Rules of Appellate Procedure. This brief has
been prepared, using Microsoft Word, in 14-point Times New Roman for the body
and 12-point Times New Roman for footnotes. This brief contains 4,238 words, as
determined by the word count feature of Microsoft Word, excluding those portions
exempted by TEX. R. APP. P. 9.4(i)(1).

                                            /s/ Kelley M. Keller
                                           Kelley M. Keller




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