Appeal from the 129th District Court Harris County, Texas
Trial Court Cause No. 2015-30636
consists of Chief Justice Frost and Justices Spain and
MARGARET "MEG" POISSANT, JUSTICE
an interlocutory appeal from an order sustaining nonresident
defendants SFM Holdings, S.A. ("SFM"), Solly Lawi,
and Albert Lawi's (collectively "nonresident
defendants") objections to jurisdiction and special
appearances and dismissing nonresident defendants for want of
jurisdiction. In its sole issue on appeal, appellant Watamar
Holding, S.A. ("Watamar") contends that the trial
court erred in granting the special appearances and in
sustaining objections to an exhibit Watamar submitted in
response to the special appearances. We affirm.
is a company incorporated under the laws of the Republic of
Panama. In 1981, Watamar acquired a 10% interest in the
Mirelis group of companies (known as the "Mirelis
Group") which included Société
Financierè Mirelis, S.A. (founded in 1949 in Geneva,
Switzerland) which is presently SFM Holdings, S.A., (a Swiss
company), and Mirelis Investments, Ltd. (established in 1957
in Montreal, Canada) which is presently Mirelis Investment
Properties, Inc. (a Canadian corporation). The Mirelis Group
owns numerous real properties and itself has ownership
interests in third party entities that own real properties
all over the world.
the appellees are residents of the State of Texas. SFM is
organized under the laws of Switzerland with its principal
place of business in Geneva, Switzerland. Solly Lawi is a
Canadian citizen who resides in Geneva. Albert Lawi is a
Canadian citizen who resides in Geneva.
alleges in its Fourth Amended Petition that around 1997 it
decided to liquidate its ownership interest in the Mirelis
Group. As alleged, in 1998, Watamar entered a contract for
the sale of that interest called the "Agreement of Sale
of Financial Interests and Real Estate Call Options"
(identified by Watamar as the "1998 Agreement").
The 1998 Agreement purportedly stipulated the sale of
Watamar's 10% holding interest in the Mirelis Group
covering two elements: 1) the sale of its financial interest
held in Mirelis Group Finance companies; and 2) the sale of
its interest in Mirelis Group-held participations in real
estate investments (the "Mirelis Group Real Estate
Investments"), subject to a buyback or call option. The
1998 Agreement was signed in Geneva, with a clause choosing
Swiss law, and a clause providing for arbitration in
Switzerland, subject to change of venue only at the
discretion of the arbitral tribunal.
dispute arose regarding the exact value of Watamar's 10%
interest in the Mirelis Group Real Estate Investments.
Watamar exercised its call option in June 2003 and, pursuant
to the requirements of the 1998 Agreement, the parties
entered into arbitration in Switzerland in April
2005. At the time of the arbitration, only some
of the 29 real properties had been sold. After five years in
arbitration, in 2010, Watamar was awarded monetary
compensation for 16 properties that had been sold. In
addition, Watamar was awarded a 10% pro rata
percentage of interest in the 13 unsold properties. One of
the 13 properties that had not been sold, the Ashford
Willowbrook Property, is located in Houston, Harris County,
Texas, and forms the basis of this lawsuit.
2012, the parties entered a second arbitration in Switzerland
to resolve how to transfer the pro rata percentage
of the real property interests to Watamar, because some of
the unsold properties were majority-held by third parties,
who would not agree to transfer the awarded percentages or
were not directly owned by the Mirelis Group (i.e.,
the Mirelis Group only had an ownership interest in the
third-party entities that owned the real property). In 2014,
the arbitrator determined that Watamar could not obtain a
direct interest in those properties if the third-party owners
would not agree to the transfer. Thus, Watamar received
monetary compensation for the estimated value of those real
estate interests as opposed to a direct ownership interest in
the real properties. Ashford Willowbrook Property was a
property where the Mirelis Group had ownership in a
third-party entity but did not have a direct ownership in the
property. In relation to Ashford Willowbrook Property,
Watamar received $27, 640.00 for its previously awarded
2.764% interest in the property.
2015, Watamar filed suit allegedly seeking to obtain accurate
financial information pertaining to its real estate
investments in Texas and to enforce its contractual rights to
purchase property located in Harris County, Texas. In its
Fourth Amended Petition, Watamar requested the remedy of
specific performance of contract, constructive trust, and
injunctive relief. Watamar asserted claims for breach of
contract, breach of fiduciary duty, unjust enrichment, an
accounting, and money had and received. Watamar alleged the
vicarious liability theories of aiding and abetting breach of
fiduciary duty, civil conspiracy to breach fiduciary duty,
joint venture, and piercing the corporate veil. Watamar
requested an award of attorney fees pursuant to Chapter 38 of
the Texas Civil Practice & Remedies Code.
several defendants conceded jurisdiction, others did
On February 14, 2016, nonresident defendants SFM, Solly Lawi,
and Albert Lawi filed special appearances with supporting
affidavits. Following the filing of the special
appearance, the parties agreed to postpone any hearing on
special appearance issues until Watamar had an opportunity to
conduct discovery on jurisdictional issues.
the completion of the jurisdictional discovery, on April 28,
2017, the nonresident defendants filed a brief in support of
their special appearances. In addition, a notice of oral
hearing was filed and the hearing set for May 8, 2017. The
hearing was postponed and subsequently reset for June 12,
9, 2017, Watamar filed its response to the special
appearances by the nonresident defendants. Attached to
Watamar's response as Exhibit A is, according to Watamar,
an English translation of the "1998 Agreement." The
1998 Agreement is written in a language other than English.
Though the parties do not specify which language, the record
indicates that the 1998 Agreement is written in French.
12, 2017, the nonresident defendants filed their objection to
Exhibit A of Watamar's response to the special
appearances, pursuant to Rule 1009 of the Texas Rules of
Evidence. The nonresident defendants argued that Exhibit A
was inadmissible because it did not comply with Rule 1009(a),
based on Watamar's failure to serve a copy of the 1998
Agreement (written in French) and failure to provide an
affidavit from a qualified translator certifying the accuracy
of the translation of the 1998 Agreement submitted by
Watamar. On June 12, 2017, a hearing was conducted on the
special appearances and the objection to Exhibit A was raised
during the hearing.
October 6, 2017, the trial court sustained the nonresident
defendants' objection to Exhibit A. Additionally, on
October 6, 2017, in an Order Sustaining Objection to
Jurisdiction, the trial court granted the special appearances
for the nonresident defendants SFM, Solly Lawi, and Albert
Lawi and dismissed all claims against them for want of
timely filed this interlocutory appeal.
Special Appearance: standard of review and relevant
Standard of review.
a court has personal jurisdiction over a defendant is a
question of law. Am. Type Culture Collection, Inc. v.
Coleman, 83 S.W.3d 801, 805-06 (Tex. 2002). The trial
court's decision to grant or deny a special appearance is
subject to de novo review on appeal. Id. at
806. However, the trial court's factual findings
supporting its ruling on the special appearance may be
challenged for legal and factual sufficiency. BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795
(Tex. 2002). When, as here, the trial court did not issue
findings of fact, all facts necessary to support the trial
court's ruling and supported by the evidence are implied
in favor of the trial court's ruling. Id.
examining a legal-sufficiency challenge, we review the
evidence in the light most favorable to the challenged
finding and indulge every reasonable inference that would
support it. City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005). We credit favorable evidence if a
reasonable fact finder could, and disregard contrary evidence
unless a reasonable fact finder could not. Id. at
827. The evidence is legally sufficient if it would enable
reasonable and fair-minded people to reach the verdict under
review. Id. The fact finder is the sole judge of
witness credibility and the weight to give their testimony.
See id. at 819.
factual-sufficiency review, we consider and weigh all the
evidence, both supporting and contradicting the finding.
Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07
(Tex. 1998). We set aside the finding only if it is so
contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Id. at 407. We may not
substitute our own judgment for that of the trier of fact or
pass upon the credibility of the witnesses. Id. The
amount of evidence necessary to affirm a judgment is far less
than that necessary to reverse a judgment. Yeng v.
Zou, 407 S.W.3d 485, 489 (Tex. App.-Houston [14th Dist.]
2013, no pet.).
Special appearance law.
courts may exercise personal jurisdiction over a nonresident
if "(1) the Texas long-arm statute authorizes the
exercise of jurisdiction, and (2) the exercise of
jurisdiction is consistent with federal and state
constitutional due-process guarantees." Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007). Under the Texas long-arm statute, the plaintiff bears
the initial burden of pleading allegations sufficient to
confer jurisdiction. Retamco Operating, Inc. v. Republic
Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). When the
plaintiff meets this initial burden, the burden shifts to the
defendant to negate all potential bases for personal
jurisdiction pleaded by the plaintiff. Id. The Texas
long-arm statute extends Texas courts' personal
jurisdiction as far as the federal constitutional
requirements of due process will permit. Marchand,
83 S.W.3d at 795.
jurisdiction over a nonresident defendant is constitutional
when two conditions are satisfied: (1) the defendant has
established minimum contacts with the forum state; and (2)
the exercise of jurisdiction comports with traditional
notions of fair play and substantial justice.
Marchand, 83 S.W.3d at 795 (citing Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Minimum contacts are sufficient for personal jurisdiction
when the nonresident defendant purposefully avails itself of
the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its
laws. Moki Mac, 221 S.W.3d at 575. There are three
factors relevant to a purposeful-availment inquiry: (1) only
the defendant's contacts with the forum are relevant, not
the unilateral activity of another party or a third person;
(2) the contacts relied on must be purposeful rather than
random, fortuitous, or attenuated; and (3) the defendant must
seek some benefit, advantage or profit by
"availing" itself of the jurisdiction. Id.
This three-part inquiry assesses the quality and nature of
the contacts, not the quantity. Retamco, 278 S.W.3d
at 339. A defendant may purposefully avoid a particular forum
by structuring its transactions in such a way as to neither
profit from the forum's laws nor subject itself to
jurisdiction there. Moki Mac, 221 S.W.3d at 575. At
its core, the purposeful-availment analysis seeks to
determine whether a nonresident's conduct and connection
to a forum are such that it could reasonably anticipate being
haled into court there. Moncrief Oil Int'l Inc. v.
OAO Gazprom, 414 S.W.3d 142, 152 (Tex. 2013).
jurisdiction exists if the nonresident defendant's
minimum contacts give rise to either specific jurisdiction or
general jurisdiction. Marchand, 83 S.W.3d at 795-96.
When specific jurisdiction is alleged, as here, we focus the
minimum-contacts analysis on the relationship among the
defendant, the forum, and the litigation. Moki Mac,
221 S.W.3d at 575-76. Specific jurisdiction is established if
the defendant's alleged liability arises out of or is
related to an activity conducted within the forum.
Id. at 576; Marchand, 83 S.W.3d at 796. For
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.
appeal, we must determine what evidence the trial court
considered in ruling on the special appearances. See Max
Protetch, Inc. v. Herrin, 340 S.W.3d 878, 884 (Tex.
App.-Houston [14th Dist.] 2011, no pet.) ("[W]e consider
all of the evidence before the trial court on the question of
Exhibit A to Watamar's response to the ...