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Fisher v. Carlile

Court of Appeals of Texas, First District

June 27, 2017


v.
HEATHER CARLILE, INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF BLAVESCO LIMITED, Appellee

         On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2016-39514.

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd, Justice.

         Appellant Jeff Fisher, individually and derivatively on behalf of Blavesco Limited, challenges the trial court's denial of his motion to compel arbitration in this interlocutory appeal arising out of a shareholder derivative suit brought by appellee Heather Carlile, individually and derivatively on behalf of Blavesco Limited. We reverse the trial court's order and render judgment granting the motion to compel arbitration.

         Background

         Fisher began investing in real property in the Houston area in 2008 through a number of limited liability companies (the LLCs). By 2012, the LLCs had acquired over seventy properties worth in excess of $10 million.

         Fisher purchased an additional fifteen properties on behalf of one of the LLCs in 2012. Carlile acted as a sales agent for the seller with respect to that transaction and was subsequently hired by Fisher to manage these properties.

         Blavesco Limited was incorporated in July 2013. The purpose of the new company was to manage some of the properties controlled though the LLCs and, in the future, to act as a non-exclusive real estate broker for the purchase and sale of property.

         In August 2013, Fisher and Carlile executed a Shareholder's Agreement with respect to the newly formed Blavesco. Under the terms of the Agreement, Fisher has the sole Class A voting and management share, and Fisher and Carlile each have one Class B non-voting beneficial share. Fisher is Blavesco's sole director with the right to control the compensation for any directors, officers, managers, and employees of the company. Id. The Agreement contains a requirement that all disputes be arbitrated. Specifically, the Agreement states:

This Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of Texas, United States of America and all disputes arising in connection thereto shall be finally settled by arbitration. The arbitration shall be held at the American Arbitration Association (www.adr.org) and conducted in accordance with its rules.

         In January 2016, Fisher created a new company called Independence Construction & Finance, Inc. to act as a hard money lender for residential construction. Carlile, however, claims that Independence competes with Blavesco and that Fisher created Independence in order to funnel Blavesco's business away from Carlile.

         On June 8, 2016, Carlile filed this suit against Fisher and Independence alleging causes of action for breach of fiduciary duty, misappropriation of trade secrets, breach of contract, tortious interference, unjust enrichment, and common law fraud. Carlile also included in her petition an application for a temporary restraining order, a temporary injunction, and a permanent injunction. Carlile requested said injunctive relief in order to prevent Fisher and Independence from "unlawfully interfering with Blavesco's business Operations." Carlile also sought declaratory relief, punitive damages, and attorney's fees.

         Carlile filed a first amended petition adding the LLCs as defendants and asserting claims against them for breach of contract, fraud, unjust enrichment, conspiracy to commit fraud, breach of fiduciary duty, and aiding and abetting Fisher in committing fraud and breaching his fiduciary duties.

         On June 8, 2016, the trial court granted Carlile's application for a temporary restraining order against Fisher and Independence and granted Carlile's motion for expedited discovery against Fisher and Independence. Pursuant to that order, Carlile ...


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