Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-13-11354
Justices Bridges, Lang-Miers, and Whitehill.
L. BRIDGES JUSTICE.
Friend and Gail Friend, P.C., appeal the trial court's
order granting the special appearance of Acadia Holding
Corporation and Acadia Life Limited (Acadia). In a single
issue, Friend argues the trial court erred in sustaining
Acadia's special appearance. We affirm the trial
fifth amended petition, the operative pleading in this case,
alleged Friend began participating in 1994 in an investment
plan (the PBT Plan) at the recommendation of Tracy
Sunderlage. The PBT Plan was formed by Tracy, Sunderlage
Resource Group International, and Sunderlage Resource Group.
Tracy is a Florida resident. In or around 2000, Friend began
receiving correspondence from Carey Sunderlage that continued
to represent the viability of the PBT Plan. Carey is an
Illinois resident. In 2005, Tracy restructured the PBT Plan
to convert it to a foreign captive insurance company that
would become the Maven Trust. In 2008, Friend attended a
conference in Canada where Carey and Tracy induced Friend to
invest in Acadia Life Limited, another offshore insurance
company. In 2012, Friend received notice from the Maven Trust
and Acadia Life Limited that her investments were lost.
and Linda Sunderlage, along with Acadia Holding Corporation
and Acadia Life Limited were named as defendants in the fifth
amended petition. The petition alleged Carey, Linda, Acadia
Holding, and Acadia Life "made misrepresentations,
concealed material facts, and breached fiduciary duties"
to Friend. The petition asserted generally that Acadia
Holding, a Florida resident, and Acadia Life, a Bermuda
resident, did "business in and conducted torts in the
State of Texas which [gave] rise to [Friend's]
Life and Acadia Holding both filed special appearances.
Acadia Life argued it is a Bermuda corporation with its
principal place of business in Hamilton, Bermuda; it does no
business and has never conducted business in Texas; it does
not market its insurance products to Texas residents, owns no
property in Texas, and has no employees in Texas. Further,
Acadia Life argued it has no agents in Texas, has not
authorized any agents to act on its behalf in Texas, and has
never issued a policy of insurance in Texas or in the United
States. Instead, Acadia Life argued its only connection to
this case is as an insurer that issued a single policy
insuring Friend's life. The application for Friend's
policy was executed in Canada on December 13, 2005, and a
copy of Friend's Texas driver's license was attached.
The application provided as follows:
The undersigned acknowledges that Acadia [Life] is authorized
to transact any insurance business solely from Bermuda and
specifically acknowledges that he has not been solicited with
a view to the sale of life insurance or other insurance
products in any place other than Bermuda and agrees that by
signing this Application, he waives the right to assert
otherwise at any time in the future. In addition, subsequent
Life Insurance Purchase Contributions and communications with
regard to the servicing of the Life Insurance Policy may be
subject to restrictions by reason of the non-admitted status
of Acadia in the place of residence or domicile of the
Acadia Life argued, it was not subject to personal
jurisdiction in Texas, based either on general or specific
Holding also filed a special appearance asserting it is a
Delaware corporation with its principal place of business in
Florida, it has not purposely availed itself of the
privileges of doing business in Texas, and it "lacks any
connection to this case or the Friend Plaintiffs."
Acadia Holding characterized Friend's allegations as an
attempt to establish jurisdiction over it based on (1) the
acts of Tracy, Linda, and Carey, (2) "the acts of other
defendants by asserting conclusory allegations that the
defendants were engaged in conspiracy and aided and abetted
each other, and (3) the acts of Acadia Life." In
response, Acadia Holding argued the unilateral activity of
other defendants could not be imputed to Acadia Holding;
Tracy, Linda, and Carey were not agents of Acadia Holding,
and there was no basis for imputing the actions of Acadia
Life to Acadia Holding.
Holding's special appearance was supported by the
affidavit of its president, Michael Goldberg. Goldberg's
affidavit stated that, among other things, Acadia Holding has
never conducted any business in Texas; does not have bank
accounts, assets, offices or agents in Texas; did not have
any contact with Friend regarding Acadia Life policies; was
not involved in the sale, issuance, or administration of
Friend's insurance policy; was not involved in the
management of Acadia Life and did not control Acadia
Life's operations; and did not employ Tracy, Linda, or
Carey as its agents.
filed a response to the special appearances in which she
grouped Acadia Life and Acadia Holding together as a single
entity, "Acadia, " and asserted that
"Acadia" and its agents induced Friend to invest
"over $800, 000" in an Acadia Life policy and
caused Friend to lose "all of her money due to the
fraudulent nature of Acadia's investment scheme
perpetrated by Carey Sunderlage and Tracy Sunderlage."
Friend alleged Acadia and its "agents, " including
Tracy, forged her signature on the policy application and
listed Toronto, Canada, as the location where Friend executed
the application. Friend alleged Tracy emailed the application
to Friend in Houston and directed her to sign it but not to
date it so that Acadia and its "agents" could
"manipulate the date" and create "the illusion
that everything occurred outside the United
States." In addition to pointing out Friend's policy
payments came from Texas, Friend alleged "Acadia"
has issued at least ten insurance policies and/or annuities
to Texas residents, resulting in payments of over $16 million
to Acadia from Texas residents.
Life and Acadia Holding filed a reply in which they argued
Friend's "unpleaded and unsupported agency theory
[did] not impute actions by Tracy Sunderlage or Carey
Sunderlage to Acadia Life." Specifically, they argued
Friend's fifth amended petition did not allege agency as
a theory of jurisdiction; Friend did not and cannot prove the
existence of an agency relationship between Acadia Life and
Tracy or Carey; Tracy only provided investment management
services to Acadia Life insureds who voluntarily elected him
as their investment manager; and the Acadia Life investment
management agreement provided that the investment manager is
an independent contractor and has no authority to bind,
obligate, or represent Acadia Life. The trial court
subsequently granted Acadia Life's and Acadia
Holdings' special appearances, and this appeal followed.
single issue, Friend argues the trial court erred in granting
Acadia's special appearance. The plaintiff bears the
initial burden of pleading sufficient allegations to bring a
nonresident defendant within the personal jurisdiction of a
Texas court. BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789, 795 (Tex. 2002). When this burden is met, the
burden shifts to the nonresident to negate all bases of
personal jurisdiction asserted by the plaintiff. Id.
A defendant may negate jurisdiction on a legal basis by
showing that even if the plaintiff's allegations are
true, they do not establish jurisdiction. Kelly v.
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