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Affirmed and Opinion filed April 10, = 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-07-00527-CV

_______________

 

GREENFIELD ENERGY, INC., GREENFIELD = ENERGY, INC.,=20 and GREENFIELD OIL TRINIDAD, LTD., Appellants

 

V.

 

LAWRENCE DUPREY = and CL=20 FINANCIAL, LTD., Appellees

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On Appeal from the 295th District=20 Court

Harris County, Texas

Trial Court Cause No.=20 2005B69248

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O P I N I=20 O N

This is an appeal = from an order=20 granting the special appearances of appellees, a foreign company = and=20 foreign citizen.  Appellants contend that the Texas contacts = of two=20 foreign subsidiary companies, wholly-owned by the foreign company, = should=20 be imputed to appellees for jurisdictional purposes.  = Appellants=20 further contend that appellees=3D contacts with Texas = are=20 sufficient to support the jurisdiction of a Texas court.  We = conclude=20 that imputation of the contacts of the subsidiaries to appellees = is not=20 warranted on this record.  We further determine that = appellees do not=20 have sufficient minimum contacts with Texas to sustain special or = general=20 jurisdiction.  We therefore affirm the trial = court=3Ds order granting=20 appellees=3D special=20 appearances.

I. =20 Factual and Procedural Background

On January 22, 2007,=20 Greenfield[1] =20 sued Primera East Brighton Ltd. (APEBL@), Primera Oil & = Gas Ltd.=20 (APOGL@), EOG Resources, = Inc.=20 (AEOG@), Lawrence Duprey=20 (ADuprey@), and CL Financial, = Ltd.=20 (ACL = Financial@) alleging = (a) breach of=20 contract, (b) tortious interference with contract,=20 (c) conspiracy to interfere with business relations, = (d) fraud,=20 (e) unjust enrichment, (f) negligent misrepresentation,=20 (g) promissory estoppel, (h) quantum meruit, and = (i) alter=20 ego, single business enterprise, and sham to perpetrate = fraud.  As=20 relevant to this appeal, Greenfield asserted that jurisdiction was = proper=20 because PEBL and POGL (collectively, Athe Primera=20 entities@) = allegedly

operated . . . as the Aalter ego@ of CL Financial Limited and Lawrence = Duprey, the=20 agent of CL Financial Limited and Lawrence Duprey[,] or as part of = a=20 single business enterprise with CL Financial Limited and Lawrence = Duprey=20 and any and all contacts with Houston, Harris County, Texas made = by=20 Defendant Primera should be imputed to Defendants CL Financial = Limited and=20 Lawrence Duprey.

CL Financial and = Duprey filed=20 special appearances, and the trial court conducted a hearing on = April 30,=20 2007.  The trial court granted the special appearances on = June 12,=20 2007 and subsequently filed factual and legal findings on July 11, = 2007.  This appeal timely ensued.

A.       =20 The Parties

Lawrence Duprey is a = resident=20 citizen of the Republic of Trinidad and Tobago who does not live = and has=20 never worked in Texas.  He owns the controlling interest in = CL=20 Financial, which is a holding company based in and incorporated = under the=20 laws of the Republic of Trinidad and Tobago, with no offices or = employees=20 in Texas.  In turn, CL Financial is the sole shareholder of = the=20 Primera entities.[2] =20 Duprey is also chairman of the board of CL Financial and the = Primera=20 entities.  Pat Acham, a resident of the Republic of Trinidad = and=20 Tobago, is the chief executive officer of both the Primera = entities. =20 Neither of the Primera entities have offices or employees in = Texas.=20  

Greenfield Energy, = Inc.=20 (AGreenfield = Canada@) is a Canadian=20 corporation.  In August 2003, two principals of this = corporation,=20 Canadian residents Ed Wenger and Larry Smyth, were introduced to = Acham by=20 a Houston resident, Jim Oberkircher.  In September 2003, = Wenger and=20 Oberkircher formed a Houston company, also named Greenfield = Energy, Inc.=20 (AGreenfield = Houston@),[3] = and began=20 negotiating with Acham regarding the rights to the property at the = center=20 of this dispute, an oil and gas property located off the coast of=20 Trinidad, referred to by the parties as the AEast Brighton=20 block.@  The dispute in = this case=20 arises from the drilling rights to this property and an agreement = between=20 the Primera entities and Greenfield Canada and Greenfield Oil = Trinidad,=20 Ltd. (AGreenfield = Trinidad@).

B.       =20 The June Letter Agreement

In June 2004, Acham = and Smyth=20 signed a letter agreement (the AJune Letter=20 Agreement@).[4] =20 Acham drafted the agreement and signed it in his capacity as chief = executive officer of both Primera entities.  The June Letter=20 Agreement indicated that Greenfield Canada was signing  it=20 Aon behalf of a = company to be=20 formed under the laws of the Republic of Trinidad and = Tobago.@  The agreement = provided=20 that the parties would each undertake certain actions in order to=20 Anegotiate and=20 consummate@ a formal agreement = and an=20 Operating Agreement by August 31, 2004.[5]  The=20 letter also contained the following provision:

The subject matter described herein is = intended by=20 Primera and Greenfield to remain confidential, not to be disclosed = to any=20 other party without the written consent of Primera and Greenfield, = unless=20 such disclosure is required by the Government or of the Government = to=20 whose jurisdiction any party hereto is subject or of any agency=20 thereof.

According to Acham, = he faxed=20 this letter to Greenfield Canada from the Houston offices of EOG = when he=20 was there discussing development of other oil and gas prospects = with=20 EOG  on June 29, 2004.  It is primarily the alleged = breach of=20 this letter agreement and the alleged tortious interference with = this=20 agreement by CL Financial, Duprey, and EOG for which the = Greenfield=20 entities have sued. 

C.       =20 The Acquisition and Transfer of the East Brighton = Block

Much of = Greenfield=3Ds arguments regarding = imputing=20 the contacts of the Primera entities to CL Financial and Duprey = rely on=20 ownership of the rights to the East Brighton block.  = Therefore, a=20 brief history surrounding the acquisition and subsequent transfer = of these=20 rights provides the necessary context for this case.

$           = ;       =20 In 1999, CL = Financial=20 purchased drilling and development rights to the East Brighton = block, and=20 also purchased a company named Premier Oil Fields of Trinidad, = Ltd.,=20 subsequently renamed POGL.  At the time CL Financial acquired = the=20 rights to the block, an existing joint operating agreement  = was in=20 place between the previous operator and Petroleum Company of = Trinidad=20 & Tobago Ltd. (APetrotrin@), which required Petrotrin=3Ds consent to any transfer of the = interests to a=20 non-affiliated company, as well as the consent of the government = of=20 Trinidad and Tobago to any transfer.

$           = ;       =20 In early March of = 1999, CL=20 Financial requested the government=3Ds consent to this transfer, which was = granted in=20 April of 1999.  In July of 1999, CL Financial, the previous = operator,=20 and Petrotrin executed a novation to the joint operating = agreement,=20 substituting CL Financial into the agreement  in place of the = prior=20 operator.

$           = ;       =20 CL Financial = apparently=20 intended to transfer the East Brighton assets to POGL because POGL = started=20 accounting for these assets in 1999.  In 2001, the Primera = entities=20 began assembling the paperwork necessary for the transfer.  = In April=20 2002, CL Financial requested Petrotrin=3Ds consent to the transfer.  = Petrotrin=20 consented to the transfer of CL Financial=3Ds rights to POGL in June 2002.  = Shortly=20 thereafter, CL Financial sought governmental consent to the=20 transfer.

$           = ;       =20 At some point during = this=20 process, the decision was made to place the drilling rights in = PEBL, a=20 newly-formed wholly-owned subsidiary of CL Financial.

$           = ;       =20 In September 2003, = Pat Acham,=20 chief executive officer of both Primera entities, wrote to = Petrotrin=20 seeking consent for the assignment of the East Brighton rights to=20 PEBL.  Shortly thereafter, Tim Gabriel of POGL sought = governmental=20 consent to the transfer.

$           = ;       =20 In November 2003, a = government=20 official contacted CL Financial, explaining that inconsistent = transfers of=20 the East Brighton rights had been requested.  The official = explained=20 that CL Financial had requested permission for an assignment of = the rights=20 to POGL in 2002, and POGL had requested transfer of CL=20 Financial=3Ds rights to PEBL in 2003.  =

$           = ;       =20 Because = Petrotrin=3Ds  consent was unnecessary to = transfer the=20 block to an affiliate, CL Financial informed Petrotrin of its = intent to=20 transfer its rights to PEBL.  By June of 2004, POGL was = awaiting=20 governmental consent to the transfer so it could finalize = exploration and=20 development of the property.

$           = ;       =20 In mid-2004, POGL = discovered=20 that it did not have a copy of the original assignment paperwork = conveying=20 the previous operator=3Ds interest to CL Financial when the = purchase was=20 made of the drilling rights in 1999.  In October of 2004, = POGL=20 determined that no such paperwork had been drafted or filed and = that=20 technically the rights to the East Brighton block legally belonged = to the=20 prior operator.  To resolve this problem, two deeds of = assignment=20 were drafted: (1) a retroactive transfer from the previous = operator to CL=20 Financial, and (2) a prospective transfer from CL Financial to = PEBL. =20

$           = ;       =20 In October 2005, the = two=20 transfers were finally properly documented with appropriate deeds = of=20 assignment and the requisite government approvals.  Later, a = novation=20 was signed formally substituting PEBL for CL Financial in the = joint=20 operating agreement.

D.       =20 The Trial Court=3Ds Findings of Fact = and=20 Conclusions of Law

On April 30, 2007, = the trial=20 court conducted a hearing on CL Financial and Duprey=3Ds special = appearances.  At=20 the request of the parties, on July 11, 2007, the trial court made = findings of facts and conclusions of law on their special=20 appearances.  Regarding specific jurisdiction, the trial = court made=20 the following findings.

1.        =20 Plaintiffs=3D Allegations

In this lawsuit, plaintiffs allege that=20 Adefendants@ traveled to Texas and executed the June = Letter=20 Agreement or that the A[c]ontract at issue was executed by = Defendants in=20 Texas.@  Plaintiffs also allege that = Adefendants@ Asubsequently traveled to Houston,=20 Texas@ to interfere with = plaintiffs=3D contractual rights.  However, = neither Duprey=20 nor CL Financial signed either the June Letter Agreement or the = memorandum=20 of understanding.  Additionally, there is no evidence linking = either=20 Duprey or CL with the interference claims or with Texas.  The = Court=20 finds that there is no evidence supporting these jurisdictional=20 allegations.

Plaintiffs allege that Duprey and CL = [Financial]=20 Awrongfully directed others to execute = the=20 agreements@ with plaintiffs and conspired with EOG = to=20 interfere with the June Letter Agreement.  The Court finds = that there=20 is no evidence of Duprey or CL [Financial] directing anyone to = perform any=20 act of jurisdictional significance.

Finally, plaintiffs allege that Duprey = and CL=20 [Financial] committed fraud against them and negligently provided = false=20 information to them.  The Court finds that there is no = evidence that=20 Duprey or CL [Financial] were involved in any fraud or=20 misrepresentations.  Greenfield cannot point to any (1) = evidence of=20 representations that Duprey or CL [Financial] made to them, (2) = evidence=20 of defendants=3D intent to deceive, or (3) evidence of=20 plaintiffs=3D reliance upon the putative=20 representations.

2.        =20 Negotiations with EOG

Greenfield argues that CL Financial, = through Gita=20 Sakal, negotiated a confidentiality agreement with EOG.  = However,=20 Greenfield=3Ds evidence does not show a = jurisdictional contact,=20 because EOG Trinidad initiated the contact, CL Financial is not a = party to=20 the confidentiality agreement, and the confidentiality agreement = is not a=20 contact with Texas.

The confidentiality agreement upon which = Greenfield focuses is between [PEBL] and EOG Resources Trinidad = Limited;=20 CL Financial did not sign it.  When EOG Trinidad received its = copy of=20 the agreement, Acham sent it with a cover letter on [PEBL]=20 letterhead.  Further, even if CL [Financial] had signed the=20 agreement, it would be a contact with Trinidad, because the = agreement is=20 with EOG Trinidad.

3.        =20 The Memorandum of Understanding

Greenfield also argues that a December = 2, 2003=20 memorandum of understanding between the APrimera Group of Companies@ and Greenfield Houston is a CL = Financial contact=20 with Texas.  Greenfield suggests that the Amajority of negotiations [took] place in = Texas.@  The evidence that Greenfield = offers for=20 this contention is a reference by Larry Smyth that Jim Oberkircher = began=20 these negotiations Ain November, 2003 from Houston, = Texas.@  This evidence does not show that = a majority=20 of the negotiations took place in Texas.  In fact, = Oberkircher=20 himself testified that he and Ed Wenger initiated the contact with = Acham=20 in Trinidad, never met with Acham anywhere but Trinidad, and - = most=20 importantly - never had contact with CL Financial, Duprey, or = anyone=20 acting as an agent for either.  There is no credible evidence = that=20 the negotiations took place in Houston - all of the credible = evidence=20 shows that Trinidad was where the memorandum of understanding was=20 negotiated.  In any event, all of the evidence is that = Greenfield=20 initiated this contact.  It is not a Texas contact for CL = Financial,=20 or any other organization.

In addition to Oberkircher=3Ds testimony that Greenfield never = contacted anyone=20 at CL [Financial], the plain fact remains that CL Financial did = not sign=20 the [m]emorandum of [u]nderstanding.  Acham signed the = memorandum for=20 the APrimera Operating Group of Companies,=20 Ltd.@  Primera Operating Group is not, = as=20 Greenfield points out, the proper name of any of the Primera = companies,=20 but that does not matter for jurisdictional purposes.  Use of = the=20 name might lead to confusion between the various Primera = companies, but it=20 is not evidence that CL Financial signed the=20 memorandum.

The evidence does not show that Primera = was acting=20 as CL Financial or as an agent of CL Financial.  Primera = performed=20 actions Aon behalf@ of CL Financial in the same sense that = any=20 wholly-owned subsidiary performs actions Aon behalf@ of its sole shareholder, which is to = say that=20 Primera performed actions which would benefit its parent company = and sole=20 shareholder.  The evidence does not show any exercise of = control that=20 exceeds what would normally be expected in a parent-subsidiary = corporate=20 relationship.  Additionally, none of this evidence refers to = the=20 memorandum of understanding, so it does not support = Greenfield=3Ds argument that CL Financial, in effect, = signed=20 the memorandum.

4.        =20 Gaffney, Cline

In February 2000, Acham accepted a fee = schedule=20 from Gaffney, Cline & Associates, a technical consulting firm, = by=20 signing it on behalf of CL Financial and Primera.  This is = not a=20 jurisdictional contact because Greenfield is not complaining about = the=20 representations made based on the Gaffney, Cline report.  = Neither=20 Gaffney, Cline nor the representations themselves are = substantially=20 related - or related at all - to Greenfield=3Ds claims.

The trial court = further found=20 that there was no evidence of systematic and continuous contacts = that=20 would support general jurisdiction over Duprey or CL = Financial. =20 Specifically, the trial court found as follows regarding the = imputation of=20 the contacts of the Primera entities to CL Financial or = Duprey:

1.        =20 Alter Ego and Single Business Enterprise

The evidence shows that the defendants = meet the=20 Texas tests for corporate separateness.  CL [Financial], = [POGL], and=20 [PEBL] are separate and distinct companies.  [POGL] and = [PEBL] have=20 management that is independent from that of CL Financial = Limited. =20 The testimony showed that:

(1)       = Acham=20 makes all of the hiring decisions for the Primera companies and = that CL=20 [Financial] has no influence in those decisions.

(2)       = Each of=20 the Primera companies generate[s] separate annual audits of [its]=20 finances.

(3)       = Each of=20 the Primera companies file[s] separate tax returns.

(4)       = CL=20 [Financial] does not itself loan money to any of the Primera=20 entities.

(5)      =20 [POGL]=3Ds payroll system is completely = independent from=20 that of CL Financial.

(6)       = CL=20 Financial and the Primera companies keep separate accounting=20 records.

(7)       = The daily=20 operations of the Primera companies and CL Financial do not=20 overlap.

(8)       = There are=20 structural barriers between the Primera entities and CL=20 Financial.

(9)       = CL=20 [Financial] and the Primera companies have neither common business = departments nor common shareholder or board meetings.

(10)     CL = [Financial] and=20 the Primera entities do not share any common employees.

(11)     The Primera = companies=20 and CL [Financial] have no undocumented fund transfers.

(12)     Primera and = CL=20 [Financial] do not combine profits or losses.

The Court finds, as a matter of fact, = that there=20 is no evidence supporting any type of alter ego or single business = enterprise theories with respect to CL Financial, [POGL], and=20 [PEBL].

2.        =20 Agency

The testimony showed that Acham made the = day-to-day decisions at both Primera entities.  The CEOs of = CL=20 Financial=3Ds subsidiaries exercised independent = judgment as=20 to how their companies are run.  During the period in which = CL=20 Financial held the East Brighton rights, Primera was conducting = operations=20 on the prospect.  Primera, unaware that there was a problem = with the=20 transfer of the East Brighton interest, was managing day-to-day = activities=20 with respect to the interest.  The intent of both CL = Financial and=20 Primera was for Primera to handle all of the oil and gas = activities in the=20 block.  So, for instance, when it was time to contract for = test wells=20 on the prospect, it was [POGL] that hired Halliburton.  There = is no=20 evidence that CL [Financial] exerted control over the details of = the work=20 of the Primera entities.

Finally, the trial = court made=20 the following legal conclusions:

The Court finds that Lawrence Duprey = does not=20 conduct business in the State of Texas, and thus lies outside of = the reach=20 of Texas=3Ds long-arm statute.  However, even = if Duprey=20 w[ere] doing business within the [S]tate, his contacts with the = [S]tate=20 were not purposeful.  The [C]ourt finds that = Duprey=3Ds contacts were random, isolated and = fortuitous.=20  Additionally, there is no evidence that Duprey sought any = benefit=20 from Texas state law, such that he impliedly consented to the = jurisdiction=20 of the Texas courts.  Duprey had no contacts with Texas that = were=20 related to plaintiffs=3D allegations.  The Court finds that = the facts=20 do not justify imputing the jurisdictional contacts of any other = party to=20 Duprey.

Like Duprey, CL Financial does not = conduct=20 business in the State of Texas, and thus does not fall within the = reach of=20 the state long-arm statute.  Even if that were not the case, = CL[=20 Financial]=3Ds contacts with the State were not=20 purposeful.  The Court finds that its contacts were random, = isolated=20 and fortuitous.  Additionally, there is no evidence that CL=20 [Financial] sought any benefits from Texas state law, such that it = impliedly consented to the jurisdiction of the Texas courts.  = Like=20 Duprey, CL [Financial] had no contacts with Texas that were = related to=20 plaintiffs=3D allegations.  The Court finds that = the facts=20 do not justify imputing the jurisdictional contacts of any other = party to=20 CL [Financial].

II. =20 Issues Presented

In its first issue, = Greenfield=20 contends the trial court erred in finding that Duprey and CL = Financial do=20 not have sufficient minimum contacts with Texas to justify an = exercise of=20 specific or general jurisdiction over them.  Specifically, = Greenfield=20 asserts that (a) the Primera entities=3D contacts should be = imputed to=20 Duprey and CL Financial, (b) these imputed contacts support = general=20 jurisdiction, and (c) both Duprey and CL Financial=3Ds own contacts = support the=20 exercise of specific jurisdiction.   In its second = issue,=20 Greenfield argues that the trial court erred in finding that = asserting=20 jurisdiction over appellees would not comport with traditional = notions of=20 fair play and substantial justice.

III. =20 Standard of Review

Whether a trial court = has=20 personal jurisdiction over a defendant is a question of law.  = Schott Glas v. Adame, 178 S.W.3d 307, 312 (Tex. = App.CHouston [14th Dist.] = 2005, pet.=20 denied), abrogated on other grounds by PHC-Minden, L.P. v.=20 Kimberly-Clark Corp., 235 S.W.3d 163, 169 (Tex. 2007).  = The trial=20 court, however, must frequently resolve questions of fact before = deciding=20 the jurisdictional question.  BMC Software Belg., N.V. v.=20 Marchand, 83 S.W.3d 789, 794 (Tex. 2002).  If the trial = court=20 rules on a special appearance and issues findings of fact and = conclusions=20 of law, we review the findings of fact on legal and factual = sufficiency=20 grounds and review the conclusions of law de novo.  See = Silbaugh=20 v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.BHouston [1st Dist.] = 2002, no=20 pet.) (citing BMC Software, 83 S.W.3d at 794).=20

Personal jurisdiction = is proper=20 if a defendant has established Aminimum = contacts@ with Texas and the = exercise of=20 jurisdiction comports with Atraditional notions = of fair=20 play and substantial justice.@  Am. Type = Culture=20 Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002) = (citing=20 Int=3Dl Shoe Co. v.=20 Washington,=20 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945)).  AThe purpose of the=20 minimum-contacts analysis is to protect the defendant from being = haled=20 into court when its relationship with Texas is too attenuated to = support=20 jurisdiction.@  Id.  = Such an=20 analysis requires that a defendant Apurposefully = avail@ itself of the = privilege of=20 conducting activities within the state of Texas, thus invoking the = benefits and protections of Texas law.  Id. =

Personal jurisdiction = exists if=20 the nonresident defendant=3Ds minimum contacts = give rise to=20 either specific or general jurisdiction.  See = PHC-Minden, 235=20 S.W.3d at 166.  Specific jurisdiction is established if the=20 defendant=3Ds alleged liability = arises from=20 or is related to an activity conducted within the forum.  = See=20 id.  General jurisdiction, in contrast, arises from = continuous=20 and systematic contacts with the forum such that the forum may = exercise=20 personal jurisdiction over the defendant even if the cause of = action did=20 not arise from or relate to activities conducted in the forum = state. =20 See id. 

IV. =20 Analysis

As noted above, = Greenfield=20 relied on theories of agency, alter ego, and single business = enterprise to=20 support general jurisdiction over CL Financial and Duprey, as well = as=20 alleging specific jurisdiction over both.  A defendant = asserting a=20 special appearance bears the burden of proving that its contacts = with the=20 forum state do not satisfy the minimum contacts test.  = See,=20 e.g., Am. Type Culture Collection, Inc., 83 S.W.3d = at=20 806.  But Athe party seeking to = ascribe=20 one corporation=3Ds actions to another = by=20 disregarding their distinct corporate entities must prove this=20 allegation.@  BMC = Software, 83=20 S.W.3d at 798 (alter ego theory); see also Coleman v. = Kl=F6ckner &=20 Co. AG, 180 S.W.3d 577, 588 (Tex. App.CHouston [14th Dist.] = 2005, no=20 pet. ) (agency theory).  Because Greenfield relies first on = the=20 imputation of the Primera entities=3D contacts to CL = Financial and=20 Duprey to meet the minimum contacts test, we begin our analysis = with the=20 theories alleged by Greenfield to support such imputation.=20

A.       =20 Imputing the Contacts of the Primera Entities

1.        =20 Alter Ego Theory

Greenfield first = asserts that=20 the Primera entities=3D jurisdictional = contacts should=20 be imputed to Duprey and CL Financial based on an alter ego = theory.[6]  The=20 Texas Supreme Court recently clarified the factors relevant to = such an=20 inquiry:

To Afuse@ the parent company and its subsidiary = for=20 jurisdictional purposes, the plaintiffs must prove the parent = controls the=20 internal business operations and affairs of the subsidiary.  = But the=20 degree of control the parent exercises must be greater than that = normally=20 associated with common ownership and directorship; the evidence = must show=20 that the two entities ceased to be separate so that the corporate = fiction=20 should be disregarded to prevent fraud or injustice.

PHC-Minden, 235 S.W.3d at 175 = (quoting=20 BMC Software, 83 S.W.3d at 799).  The Court also = emphasized=20 that a Asubsidiary = corporation will not=20 be regarded as the alter ego of its parent merely because of stock = ownership, a duplication of some or all of the directors or = officers, or=20 an exercise of the control that stock ownership gives to=20 stockholders.@  Id. = (quoting=20 Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 = (Tex.=20 1975)). 

As noted above, the = trial court=20 found the Primera entities and CL Financial to be separate and = distinct=20 companies, with independent management, boards of directors, and=20 accounting practices.  Our review of the record finds support = for=20 these findings.  For example, Patrick Chin, the financial = controller=20 of Primera Oil Field Management Services, another of the entities = owned by=20 CL Financial that provides management and financial services to = several of=20 its subsidiaries, including, as is relevant here, the Primera = entities,=20 testified in a deposition that there was no overlap between the = daily=20 operations of CL Financial, POGL, and PEBL.  He stated that = the=20 Aday-to-day@ decisions of both = Primera=20 entities were made by Acham as their chief executive = officer.  Chin=20 testified that the Primera entities and CL Financial file separate = tax=20 returns, keep separate accounts, and have separate home = offices. =20 According to Chin, CL Financial billed the Primera entities for = legal=20 services provided by Gita Sakal, the legal officer for CL = Financial. =20 The Primera entities paid for these services.  Chin = additionally knew=20 of no transfers of funds between the companies. 

Sakal=3Ds deposition = testimony=20 confirmed much of Chin=3Ds description of the=20 relationship between the Primera entities and CL Financial. =20 According to her, Acham was authorized to enter into the June = Letter=20 Agreement because he was Acharged with = responsibility of=20 the operations of the company.@  Acham = testified in a=20 deposition that CL Financial was not involved in the day-to-day = drilling=20 activities, even when it was technically still the owner of the = East=20 Brighton block. Acham acknowledged that Duprey, as chairman of the = Primera=20 entities, had the Afinal = say.@  But Acham = emphasized=20 that it was Acham himself who was charged with running the = day-to-day=20 operations of the Primera entities:

 =20          =20 Q:        During the entire = time once=20 you took the job at Primera and you came down to Trinidad = B during the entire time you were there = or that you=20 have been there, has Mr. Duprey dictated to you the way you are to = run=20 Primera?

A:       =20 No.

Q:        When=20 you have had discussions with Mr. Duprey, what has been his role=20 concerning Primera?

A:        He=20 has always acted as an officer, chairman of Primera, providing = guidance=20 and business advice whenever necessary.

. . .

Q:        When=20 you went to Trinidad and started your work, who to your = understanding=20 actually had held or initially held the license for the drilling=20 opportunity in the East Brighton?  What was your = understanding at the=20 time?

A:        CL=20 Financial.

Q:        And=20 what was your understanding of CL=3Ds intent and desire with respect to the = interest=20 in the East Brighton fields?

A:       =20 CL=3Ds intent was to have Primera handle all = their oil=20 and gas activities.  They actually passed everything on to = Primera=20 for Primera to handle.

. . .

Q:        As=20 far as day-to-day operations of the East Brighton block, who was=20 responsible for those day-to-day operations as of the date of the = [June=20 Letter Agreement]?

A:       =20 Primera.

Thus, even though CL = Financial=20 may have retained legal ownership of the East Brighton block = during the=20 time that the Primera entities and Greenfield negotiated and = entered into=20 the June Letter Agreement,[7] = there is=20 no indication in the record that either of the Primera entities = were=20 operating on Abehalf@ of CL = Financial. =20 Finally, Duprey stated in his deposition that his only involvement = with=20 the Primera entities was as chairman of the entities=3D respective boards. =

Greenfield has not = established=20 that CL Financial controlled the internal business operations and = affairs=20 of the Primera entities to any extent greater than that normally=20 associated with common ownership and directorship.  See=20 id.  Accordingly, the trial court did not err in = concluding that=20 there is Ano evidence = supporting any type=20 of alter ego or single business enterprise theories with respect = to CL=20 Financial, [POGL], and [PEBL].@  We therefore = conclude=20 that the Primera entities=3D contacts cannot be = imputed to=20 CL Financial under the alter ego theory alleged by=20 Greenfield.

The same facts = establishing=20 that the Primera entities are separate and distinct corporations = also=20 negate general jurisdiction over Duprey individually based on a = theory of=20 alter ego.  See, e.g., D.H. Blair Inv. = Banking Corp.=20 v. Reardon, 97 S.W.3d 269, 277 (Tex. App.CHouston [14th Dist.] = 2002, pet.=20 dism=3Dd w.o.j.) (stating = that=20 A>jurisdiction over an = individual=20 generally cannot be based on jurisdiction over a corporation with = which he=20 is associated unless the corporation is the alter ego of the=20 individual=3D@) (quoting Vosko = v. Chase=20 Manhattan Bank, N.A., 909 S.W.2d 95, 99 (Tex. App.CHouston [14th Dist.] = 1995, writ=20 denied)).  Although a corporate officer is not protected from = the=20 exercise of specific jurisdiction if the officer engaged in = tortious or=20 fraudulent conduct directed at the forum state,[8] = we=20 address this issue separately infra, when we consider = whether=20 Duprey negated the exercise of specific = jurisdiction.   =20

2.        =20 Agency Theory

Greenfield next = asserts that=20 the Primera entities=3D contacts with Texas = should be=20 imputed to Duprey and CL Financial for jurisdictional purposes = because the=20 Primera entities served as the agents of Duprey and CL = Financial.  In=20 conducting a jurisdictional inquiry, an agent=3Ds contacts may be = imputed to a=20 principal to establish the requisite minimum contacts.  = See=20 Coleman, 180 S.W.3d at 588.  But Aagency will not be = presumed,=20 and the party asserting the relationship has the burden of proving = it.@  = Id. =20

Generally,=20 whether one describes the theory for imputing one = corporation=3Ds contacts=20 to another as a theory of agency or alter ego, the critical test = remains=20 that of the right or exercise of control.  See = Cannon Mfg. Co. v. = Cudahy=20 Packing Co.,=20 267 U.S. 333, 335, 45 S. Ct. 250, 250B51 (1925) (rejecting = agency=20 theory for imputing corporation=3Ds contacts to sole = shareholder=20 where the existence of the company Aas a distinct = corporate entity=20 is, however, in all respects observed@); Bank of Am. v. = Whitney=20 Cent. Nat=3Dl = Bank, 261 U.S. 171, 173, = 43 S. Ct.=20 311, 312 (1923) (AThe jurisdiction = taken of=20 foreign corporations, in the absence of statutory requirement or = express=20 consent, does not rest upon a fiction of constructive presence, = like=20 >qui facit per alium = facit per=20 se.=3D@[9]); PHC-Minden, = 235=20 S.W.3d at 175 (rejecting the Asingle business=20 enterprise@ jurisdictional = theory and=20 describing Athe relevant factors = for=20 jurisdictional veil-piercing,@ including the extent = to which=20 the Athe parent controls = the=20 internal business operations and affairs of the = subsidiary@ or conversely, = whether the=20 subsidiary is Aseparate and distinct = from its=20 parent corporation@); BMC = Software, 83=20 S.W.3d at 799 (considering Aalter ego@ theory and = concluding that=20 A[t]o >fuse=3D the parent company = and its=20 subsidiary for jurisdictional purposes, the plaintiffs must prove = the=20 parent controls the internal business operations and affairs of = the=20 subsidiary@); K.D.F. v. = Rex, 878=20 S.W.2d 589, 597 (Tex. 1994) (orig. proceeding) (holding that a = Kansas=20 general partnership created to hold securities on behalf of a = Kansas=20 governmental entity and operating solely upon the direction of the = governmental entity with no discretion of its own was an agent of = that=20 entity and was not subject to Texas jurisdiction in its individual = capacity); Gentry, 528 S.W.2d at 573 (explaining that a = subsidiary=20 corporation will be regarded as the alter ego of its parent = Awhere management and = operations=20 are assimilated to the extent that the subsidiary is simply a name = or=20 conduit through which the parent conducts its=20 business . . . @); Coleman, = 180 S.W.3d=20 at 588 (AThe critical element = of an=20 agency relationship is the right to control, and the principal = must have=20 control of both the means and details of the process by which the = agent is=20 to accomplish his task in order for an agency relationship to=20 exist.@).  Thus, the = pertinent=20 inquiry in this case is whether CL Financial or Duprey controlled = both the=20 means and details of the Primera entities=3D activities regarding = the East=20 Brighton block.  And because agency is not presumed, = Greenfield bears=20 the burden of proving that such control exists.  See = Coleman,=20 180 S.W.3d at 588.

1.        =20 No Evidence of Control

For the reasons = previously=20 discussed, we agree with the trial court=3Ds conclusion that = there is no=20 evidence CL Financial exerted control over the details of the work = of the=20 Primera entities.  The record reflects that CL Financial = legally=20 owned the rights associated with the East Brighton block, but it = is clear=20 that POGL conducted operations on the prospect almost from the=20 start.

2.        =20 No Evidence of Actual or Apparent = Authority

There also is no = indication=20 that the Primera entities were authorized to act as agents = for=20 either CL Financial or Duprey.  See id.; Walker Ins. = Servs. v.=20 Bottle Rock Power Corp., 108 S.W.3d 538, 549 (Tex. = App.CHouston [14th Dist.] = 2003, no=20 pet.). AActual authority is = created=20 through written or spoken words or conduct of the principal = communicated=20 to the agent.@  Bottle Rock = Power=20 Corp., 108 S.W.3d at 550B51.  Apparent = authority,=20 on the other hand, Ais created by written = or spoken=20 words or conduct by the principal to a third party.@  Id. at = 550. =20 Greenfield has not directed us to any written or spoken words or = conduct=20 by CL Financial or Duprey that communicated the Primera=20 entities=3Dactual or apparent = authority as=20 their agents.

3.        =20 No Evidence of Ratification

AWhether or not an = agent is=20 initially authorized to act on behalf of a principal, the=20 agent=3Ds actions may be = attributed to=20 the principal, for purposes of personal jurisdiction, if the = principal=20 later ratifies the agent=3Ds = conduct.@  Id. at = 552. =20 Ratification may occur when a principal supports, accepts, or = follows=20 through on the efforts of a purported agent.  Id. = Greenfield=20 asserts that because the Primera entities=3D activities in = pursuing=20 development of the East Brighton block benefitted CL Financial and = Duprey=20 as the legal owners of the block, CL Financial and Duprey ratified = the=20 alleged agency relationship. 

This argument, = however, ignores=20 the fact that, rather than retaining the rights to the East = Brighton=20 block, CL Financial ultimately transferred these rights to = PEBL.  In=20 fact, as discussed above, throughout the time that Greenfield = claims the=20 Primera entities were operating as the agents of CL Financial and = Duprey,=20 both the Primera entities and CL Financial were actively seeking = to=20 transfer the rights from CL Financial to the Primera = entities.  Thus,=20 there is nothing in the record to support a ratification theory of = agency.

In sum, Greenfield = has not=20 established that CL Financial or Duprey controlled the means and = details=20 of the Primera entities=3D actions in = attempting to=20 develop the East Brighton prospect.  Moreover, Greenfield has = provided no basis from which we may conclude that the Primera = entities=20 were authorized to act as CL Financial or Duprey=3Ds agents.  = Finally,=20 Greenfield has not established that CL Financial or Duprey = ratified the=20 Primera entities=3D actions regarding = the East=20 Brighton block.  Because an agency relationship cannot be = presumed,=20 we conclude that the trial court properly determined that none = existed in=20 this case.

Greenfield has not = provided any=20 viable basis to impute the contacts of the Primera entities to CL=20 Financial or Duprey.  We therefore turn to the issue of = whether CL=20 Financial or Duprey themselves have sufficient minimum contacts to = support=20 an exercise of jurisdiction over them.

B.       =20 CL Financial and Duprey=3Ds Alleged Contacts = with=20 Texas

In support of both = general and=20 specific jurisdiction, Greenfield also alleges the following = contacts by=20 CL Financial individually: (a) the confidentiality agreement with = EOG, (b)=20 the memorandum of understanding, and (c) a 2000 reserve analysis = related=20 to the East Brighton block provided by a Houston-based consulting=20 firm.  In addition, Greenfield asserts that both CL Financial = and the=20 Primera entities=3D East = Brighton-related contacts=20 should all be imputed to Duprey because he Apersonally = directed@ these subordinate = entities and=20 their employees to take action directed at Texas.  We address = each of=20 these alleged contacts in turn.

1.        =20 Negotiations with EOG

Only the = defendant=3Ds contacts count in a = jurisdictional analysis.  See Michiana Easy=20 Livin=3D Country, Inc. v.=20 Holten, 168=20 S.W.3d 777, 785 (Tex. 2005) (citing Burger King Corp. v. = Rudzewicz,=20 471 U.S. 462, 475, 105 S. Ct. 2174, 2184 (1985)).  Here, the=20 negotiations with CL Financial were initiated by EOG Trinidad, not = EOG=20 Houston.  Further, the agreement resulting from these = discussions is=20 an agreement with EOG Resources Trinidad, Ltd.  Thus, even if = this=20 were a jurisdictional contact, we agree with the trial court that = this=20 contact would be a Trinidadian contact.  Moreover, CL = Financial is=20 not a party to the confidentiality agreement, which is between EOG = Trinidad and the Primera entities.  The negotiations with EOG = were=20 therefore not a Texas contact of CL Financial.

2.        =20 Memorandum of Understanding

As the trial court = pointed out,=20 the evidence indicates that the negotiations leading up to the = execution=20 of the memorandum of understanding took place in Trinidad, not=20 Texas.  There is no evidence that CL Financial was involved = in any=20 Texas contact at all.  As the trial court concluded, = AUse of the name = [Primera=20 Operating Group of Companies, Ltd.] might have lead to confusion = between=20 the various Primera companies, but it is not evidence that CL = Financial=20 signed the memorandum.@  Thus, the = memorandum of=20 understanding is not a Texas contact  of CL = Financial.

3.        =20 2000 East Brighton Block Reserve Analysis

Although Acham = purportedly=20 accepted the Houston-based consulting firm=3Ds fee schedule on = behalf of CL=20 Financial and the Primera entities, he testified that he was not=20 authorized to commit CL Financial and that it was a mistake to = sign the=20 fee schedule as if he were.  Moreover, this contact predates = the=20 relevant time period by more than three years; the fee schedule = was signed=20 in early 2000.  By its own admission, Greenfield did not = become=20 involved in the East Brighton block until late 2003.  = Finally, the=20 record reflects that POGL hired and paid for the services provided = by this=20 consulting firm.  We agree with the trial court that this = contact is=20 not related to the operative facts of this case.  We further = conclude=20 that this contact is a contact of POGL rather than CL Financial.=20

4.        =20 Duprey=3Ds = AContacts@ with = Texas

Greenfield offers = little new=20 argument in this section of its briefing that has not been = previously=20 addressed in the alter ego or agency sections of this opinion,=20 supra.  Greenfield suggests that Duprey directed and=20 controlled the East Brighton block-related activities of CL = Financial and=20 the Primera entities.  We have already determined that = neither Duprey=20 nor CL Financial directed or controlled the day-to-day activities = of the=20 Primera entities.  We have also concluded that CL Financial = had no=20 jurisdictionally significant contacts with Texas.  Thus, we = need not=20 repeat our analysis here.  There is no evidence that Duprey = engaged=20 in any tortious or fraudulent conduct directed at Texas,[10] nor that=20 he participated in the negotiation of the memorandum of = understanding or=20 the June letter agreement.

In sum, the trial = court did not=20 err in finding that CL Financial and Duprey do not have sufficient = minimum=20 contacts with Texas to justify an exercise of either general or = specific=20 jurisdiction over them under the Texas long arm statute.  We=20 therefore overrule Greenfield=3Ds first issue, and do = not reach=20 its second issue. 

V. =20 Conclusion

We conclude that the = contacts=20 of the Primera entities may not be imputed to CL Financial or = Duprey under=20 an alter ego or agency theory.  Additionally, we = conclude =20 neither CL Financial nor Duprey have sufficient minimum contacts = to=20 justify an exercise of jurisdiction over them.  Accordingly, = we=20 overrule Greenfield=3Ds first issue.  = Because of=20 our disposition of this issue, we need not consider whether = exercising=20 jurisdiction over CL Financial or Duprey would comport with = traditional=20 notions of fair play and substantial justice.[11]  We=20 therefore affirm the trial court=3Ds judgment granting = the special=20 appearances of CL Financial and Duprey.

 

 

 

/s/        Eva=20 M. Guzman

Justice

 

Judgment rendered and = Opinion=20 filed April 10, 2008.

Panel consists of = Justices=20 Yates, Fowler, and Guzman.


[1]  For ease of reference, we refer = to=20 appellants collectively as AGreenfield.@

[2]  Both Primera entities are = incorporated=20 under the laws of the Republic of Trinidad and Tobago, as well as = having=20 their principal places of business in Trinidad.  They have = made=20 general appearances in this suit.

[3]  Greenfield Oil Trinidad, Ltd. = (AGreenfield Trinidad@) is also a plaintiff in this = dispute. =20 Greenfield Trinidad is incorporated under the laws of the Republic = of=20 Trinidad and Tobago, with its principal place of business in = Trinidad.=20 There is very little information in the record concerning this=20 corporation, and none of jurisdictional significance. =

[4]  An earlier memorandum of = understanding was=20 signed by Oberkirker, on behalf of Greenfield Houston, and Acham, = on=20 behalf of the APrimera Group of Companies, = Ltd.@  Acham acknowledged that this = organization=20 did not officially exist; however, he indicated that he was = signing the=20 memorandum in his capacity as Chief Executive Officer of both the = Primera=20 entities.  Moreover, in March 2004, Oberkircher resigned from = Greenfield Houston, closed down its operating accounts, assumed = its=20 leases, and began paying its one other employee as his own. =20 Greenfield Houston was not a party to the June Letter=20 Agreement.

[5]  Additionally, in the letter, = Acham stated,=20 AWe are presently awaiting the = State=3Ds Ministry of Energy=3Ds consent to have the new company = (Primera East=20 Brighton Limited) ratified to undertake exploration activity in = the=20 Block.@

[6]  Greenfield has not asserted a=20 single-business-entity theory on appeal.

[7]  Indeed, as noted above, the = original deed=20 assigning the drilling rights from the former operator of the East = Brighton prospect to CL Financial was not filed until July 30, = 2005, well=20 after the June letter agreement and the events transpiring = thereafter that=20 form the basis of this lawsuit.  The deed of assignment, = however,=20 operated retrospectively to July 1, 1999, because that is when the = parties=20 actually agreed to the assignment.

[8]  See id. (citing Calder = v.=20 Jones, 465 U.S. 783, 104 S. Ct. 1482 (1984)).

[9]  AHe who acts through another acts himself = [i.e.,=20 the acts of an agent are the acts of the principal].@  Black=3Ds=20 Law Dictionary=20 1249 (6th ed. 1990).

[10]  See D.H. Blair Inv. Banking = Corp.,=20 97 S.W.3d at 277B78.

[11]  See Int=3Dl Shoe Co., 326 U.S. at 316, 66 S. Ct. at = 158. =20 Although unnecessary to our resolution of Greenfield=3Ds complaint, our precedent suggests that = haling CL=20 Financial or Duprey into a Texas court would also offend = traditional=20 notions of fair play and substantial justice.  See Moni = Pulo Ltd.=20 v. Trutec Oil & Gas, Inc., 130 S.W.3d 170, 180B81 (Tex. App.CHouston [14th Dist.] 2003, pet. denied); = Alenia=20 Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 220B22  (Tex. App.CHouston [14th Dist.] 2003, pet. denied), = cert.=20 denied, 127 S. Ct. 136 (2006); see also Primrose Drilling = Ventures,=20 Ltd. v. Nealwell Drilling, Ltd., No. 14-98-00618-CV, 2000 WL = 890622,=20 at *8  (Tex. App.CHouston [14th Dist.] July 6, 2000, no = pet.) (not=20 designated for=20 publication).

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