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Fisher v. Eagle Rock Custom Homes Inc.

Court of Appeals of Texas, Fourteenth District

January 14, 2020

JEFF FISHER, Appellant
v.
EAGLE ROCK CUSTOM HOMES INC. AND MACK DAVIS, Appellees

          On Appeal from the 334th District Court Harris County, Texas Trial Court Cause No. 2017-77671

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          MEMORANDUM OPINION

          Frances Bourliot Justice

         Jeff Fisher brings this interlocutory appeal from the trial court's order denying his special appearance.[1] Appellees Eagle Rock Custom Homes Inc. and Mack Davis sued Fisher for fraudulent inducement, common law fraud, constructive fraud, and negligent misrepresentation. In his special appearance, Fisher contended that he is a Hong Kong resident who lacks sufficient contacts with Texas to support personal jurisdiction over him. Concluding that Fisher negated all pleaded bases for jurisdiction and appellees failed to show Fisher had sufficient contacts with Texas to support jurisdiction, we reverse the trial court's order denying Fisher's special appearance and render judgment dismissing the case for want of jurisdiction.

         I. Background

         In their petition, appellees asserted that Fisher is a Texas resident who conducted business in Texas. They further alleged that appellee Eagle Rock is a home building company that had been doing business with a company known as Blevesco (a Fisher-related entity) when Fisher approached Eagle Rock with a proposal for creating a joint venture with other entities Fisher controlled for the purpose of developing properties. According to appellees, lots were to be deeded to Eagle Rock to enable it to procure construction loans from a third party lender or another entity Fisher controlled. As the projects progressed, problems began to arise, such as slow funding and deeds not being transferred to Eagle Rock, causing sales to be lost and fees to rise. Appellees allege that Fisher made false representations regarding the lots and construction loans to mislead Eagle Rock and Davis.[2] Appellees further allege that Fisher's failure to properly transfer properties to Eagle Rock, adding fees to lot purchases, and taking funds that did not belong to the entities Fisher controlled resulted in such financial losses as to force Eagle Rock out of business and cause Davis significant debt resulting from his personal guarantees to vendors. On this basis, appellees asserted claims against Fisher for fraudulent inducement, common law fraud, constructive fraud, and negligent misrepresentation.

         In his special appearance and attached affidavit, Fisher asserted that he is a Hong Kong resident without significant contacts with Texas. He stated that he has lived in Hong Kong since 1997 and attached his United States tax returns and Hong Kong identification card as proof. Fisher acknowledged that he visited his parents a couple of times a year in Texas and that he maintained a Texas driver's license so that he could drive on those visits. Fisher further stated that he was formerly a manager or investor in companies that do business in Texas, but he personally does not own any property, have any bank accounts, or conduct any business in the state.

         Appellees responded to the special appearance by citing other Texas court cases in which Fisher allegedly made certain statements, including that he had bought properties in the state for himself through limited liability companies and had requested the court to treat a particular matter as a direct action for his personal benefit. Also, appellees asserted that in an unsworn declaration in one of these other cases, Fisher represented his home address as being in Spring, Texas. Appellees further stated that Fisher had numerous in person meetings with Davis and other representatives of Eagle Rock.

         The only document attached to appellees' response was an affidavit by Davis in which he averred that he was first introduced to Fisher at Blevesco's offices in Harris County, after which Blevesco and Eagle Rock entered into joint venture agreements for the construction of new homes. According to Davis, after several successful projects, Fisher approached Eagle Rock with a proposal for entities owned and controlled by Fisher to provide both the lots and financing for future projects. Eagle Rock then began the projects with various Fisher entities. Davis further asserted that during their business dealings he had numerous in person meetings with Fisher at the Blevesco office and at a local restaurant. Davis said that Fisher was always his contact through the years of doing business with the Fisher entities. In a reply, Fisher insisted that his attendance at any meetings with Davis was only in his capacity as a representative of a company.

         The trial court held a hearing on the special appearance at which no witnesses testified and no exhibits were offered into evidence. During the hearing, Fisher's counsel acknowledged that Fisher was the managing director of several Delaware companies that did business in Texas, purchasing lots and building on the lots. And counsel admitted appellees' claims might be valid against Fisher's companies. But he insisted that no claims were valid against Fisher in his individual capacity because there was no proof to support allegations of alter ego or other veil-piercing theories. Counsel further acknowledged that at the time he made the statement or statements that were alleged to be fraudulent, Fisher was in Texas, but it is not clear whether counsel was simply basing that on the controverting affidavit by Davis, which he referenced, or if he was intending to admit the truth of the contention. Fisher's counsel further acknowledged Fisher had filed a lawsuit in Texas against another party.

         Appellees' counsel asserted at the hearing that Fisher personally made representations in Texas to induce appellees into the joint ventures.[3] Appellees' counsel further stated that in the course of other litigation in Harris County, Fisher had filed affidavits representing his home address to be in Spring, Texas and had signed a settlement agreement in Texas. It appears from the transcript that appellees' counsel may have handed the judge at least one purported affidavit and the judge then handed it to Fisher's counsel, but no such affidavit was offered or admitted into evidence or appears in the record on appeal.[4] Appellees' counsel also indicated that he had witnesses prepared to testify that Fisher had filed for unemployment benefits in Texas, but, as stated, no witnesses testified at the hearing

         At the conclusion of the hearing, the trial judge denied Fisher's special appearance. The judge did not enter findings of fact or conclusions of law.

         II. Standards of Review

         Whether a court has personal jurisdiction over a defendant is a question of law we review de novo. Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). When, as here, the trial court does not enter findings of fact or conclusions of law, we imply all facts necessary to support the trial court's ruling that are supported by the evidence. Id. The ruling may be ...


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