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Hatzenbuehler v. Essig

Court of Appeals of Texas, First District

July 6, 2017

BRIGITTE HATZENBUEHLER, Appellant
v.
JENS ESSIG, Appellee

         On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2015-11871

          Panel consists of Justices Keyes and Bland. [3]

          OPINION ON REHEARING [1]

          Jane Bland Justice

         This appeal from a special appearance arises out of a dispute between German citizens concerning the provenance of a cauldron discovered in a Bavarian lake. Josef Hatzenbuehler sued Jens Essig, alleging that Essig and others falsely represented the cauldron to be of ancient Celtic origin. With Essig's assistance, Josef purchased the cauldron at a Swiss bankruptcy sale. Josef alleged that he later discovered that the cauldron was likely created by the Nazis in the 1940's, making it significantly less valuable.

         Josef died during the pendency of the suit and his widow, Brigitte Hatzenbuehler, succeeds him as plaintiff. The live pleading alleges that Essig committed fraud, fraudulent inducement, negligent misrepresentation, and breach of contract in connection with the cauldron transaction.

         Essig specially appeared, contending that the trial court lacked personal jurisdiction over him. The trial court agreed, granted the special appearance, and dismissed the suit.

         Brigitte Hatzenbuehler appeals, contending that the trial court erred in granting the special appearance. We affirm.

         Background

         During the relevant time period, the Hatzenbuehlers resided in Texas, but they returned to Germany to visit family and friends during holidays. Essig, a resident of Germany, has never visited Texas and has no property or agents in Texas.

         According to the pleadings, Essig and others discovered an artifact known as the Chiemsee Cauldron while exploring a Bavarian lake. The cauldron reportedly was of pre-Christian, Celtic origin. Starting in 2008, Josef discussed the discovery of the cauldron several times with Essig during the Hatzenbuehlers' annual holiday visits to Germany. Josef, a collector of antiques and artifacts, expressed an interest in acquiring the cauldron. He requested information concerning its authenticity and value. Essig told him that the cauldron was in the possession of a bankruptcy estate in Switzerland and was to be sold at the estate auction in Switzerland.

         Josef and Essig continued phone and e-mail contact through 2014. Throughout this period, during which Josef resided in Houston and Essig in Switzerland, Essig repeatedly represented that the cauldron was authentic and of great value. In March 2014, Essig sent an e-mail to Josef confirming he had materials that authenticated the cauldron and its value. Essig informed Josef that Essig had been qualified to place a bid on the cauldron as a creditor of the Swiss bankruptcy estate. Essig and Josef discussed an assignment of Essig's bidding rights to Josef so that Josef could acquire the cauldron at the Swiss auction.

         Josef, while in Houston, drafted a Letter of Intent to share profits earned on the cauldron's sale. The parties signed the LOI on or about April 13, 2014. The letter of intent declared that it was non-binding, but it outlined the parties' understanding that

• Josef would bid on the cauldron with the intent of purchasing it and gaining sole ownership of it;
• Essig would assist Josef in obtaining the winning bid;
• Essig would provide Josef with a list of all information in his possession concerning the cauldron, including reports, tests, specifications, articles, and agreements, for the purpose of determining a bid ceiling; and
• The parties would each earn 50% of the profits, less costs and expenses incurred by Josef in connection with the acquisition, holding, and subsequent sale of the cauldron.

         Later that month, the parties circulated a draft profit-sharing agreement, which provided for the application of Texas choice-of-law rules and includes Texas venue provisions. The draft agreement was never executed.

         About a month after the parties signed the non-binding LOI, in May 2014, the Hatzenbuehlers traveled to Zurich, Switzerland, to view the cauldron and meet with Essig and others, including Josefs Swiss attorney. By that time, the Hatzenbuehlers had heard rumors in Germany and Switzerland that the cauldron was not of ancient Celtic origin, but instead had been created by the Nazis, who dumped the cauldron in the Bavarian lake in 1945. Essig assured the Hatzenbuehlers "many times during the trip to Zurich" that the cauldron was of ancient Celtic origin and that experts would confirm its provenance. Josef decided to proceed with the purchase and told those present that, after he purchased the cauldron, he planned to ship it to Houston for marketing in the United States because of the rumors in Germany and Switzerland that its provenance was suspect.

         Essig and Josef then negotiated a Preliminary Agreement to address the acquisition of the cauldron. They had a German attorney draft the agreement and forward the draft to Josef in Houston. Josef then traveled to Munich, Germany to sign it. The Preliminary Agreement, which expressly replaced the letter of intent, recited that "both parties are ...


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