Opinion

Opinion issued June 30, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-14-00904-CV

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GRAMERCY ADVISOR LLC, GRAMERCY ASSET MANAGEMENT

LLC, GRAMERCY LOCAL MARKETS RECOVERY FUND LLC AND

GRAMERCY FINANCIAL SERVICES LLC, Appellants

V.

R. K. LOWERY, JR. L-FALLING CREEK LLC, RUSSELL A. CHABAUD,

R-RAC WIMBLEDON, LLC, JOHN P. MOFFITT, J-JASON LLC,

RUSSELL A. CHABAUD, TRUSTEE OF THE RUSSELL G. CHABAUD

1999 INVESTMENT TRUST, R- RUSSELL WIMBLEDON, LLC, RUSSELL

A. CHABAUD, TRUSTEE OF THE ASHLEY CHABAUD 1999

INVESTMENT TRUST, R-ASHLEY WIMBLEDON, LLC, RUSSELL A.

CHABAUD, TRUSTEE OF THE AUDREY CHABAUD 1999 INVESTMENT

TRUST, R-AUDREY WIMBLEDON, LLC, LMC RECOVERY FUND, LLC,

UNION GAS FUNDING I, L.P., RANA HOLDINGS, LLC, WESTY I LLC,

AND MOGI, LLC, Appellees

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Case No. 2008-74262

MEMORANDUM OPINION

This is our second occasion to address the trial court’s special appearance

rulings in this case. Plaintiffs sued numerous defendants complaining of tax

investment strategies marketed to Plaintiffs for use on their federal tax returns for

the tax years 2000 through 2005 (“Investment Strategies”). Defendant Financial

Strategy Group (a Tennessee defendant that prepared tax returns for a Connecticut

entity utilized in the Investment Strategies for two years) filed a special

appearance, which the trial court denied. On interlocutory appeal, we reversed,

holding that “the trial court erred in concluding that Financial Services had

sufficient minimum contacts with Texas to confer Texas courts with personal

jurisdiction over it.” Fin. Strategy Grp., PLC v. Lowry, Jr., No. 01-14-00273-CV,

2015 WL 452265, at *12 (Tex. App.—Houston [1st Dist.] Jan. 27, 2015, no pet.).

Defendants-appellants Gramercy Advisors LLC, Gramercy Asset

Management LLC, Gramercy Local Markets Recovery Fund LLC, and Gramercy

Financial Services LLC (collectively, “Gramercy defendants”) and defendants

Steamboat Capital Management LLC and Jay A. Johnston also filed a joint special

appearance. Following a hearing, the trial court denied the Gramercy defendants’

special appearance, and took Steamboat’s and Johnston’s under advisement. The

Gramercy defendants then brought this accelerated appeal from the trial court’s

order denying their special appearance. We affirm.

2

BACKGROUND

A. Plaintiffs’ Allegations

Plaintiffs’ petition alleges that defendants “jointly and in concert developed,

promoted, sold, and implemented the Investment Strategies as a part of a

conspiracy to commit fraud.” 1 According to plaintiffs, defendants “counseled and

advised Plaintiffs to undertake the Investment Strategies, claiming the Investment

Strategies would yield a substantial profit and minimize Plaintiffs’ tax liability.”

Plaintiffs further alleged that at the time the defendants sold the Investment

Strategies to the plaintiffs, they knew—or should have known—that “the

Investment Strategies would not and could not yield the investment results or tax

treatment claimed.” Indeed, plaintiffs’ petition contends, the defendants “knew, at

the time they promoted and sold the Investment Strategies to Plaintiffs, that federal

authorities were investigating the legality of similar ‘abusive tax shelters.’”

Despite defendants’ knowledge, they did not inform Plaintiffs. Defendants’

motive, according to Plaintiffs, “was to extract millions of dollars in fees and

commissions from Plaintiffs.” As a result of their detrimentally relying on

defendants’ expertise, advice, and representations about the legality and propriety

1

The allegations in this background section come from Plaintiffs’ petition. Because

the parties disagree about the scope and characterization of Plaintiffs’ claims, we

quote extensively from the pleading. We have also included allegations related to

other defendants to give context to Plaintiffs’ allegations against the Gramercy

defendants.

3

of the Investment Strategies, plaintiffs entered into illegal and abusive tax shelters,

subjecting them to “substantial back taxes, interest, penalties, and other damages.”

B. Allegations specific to Gramercy defendants

1. Jurisdiction

Relevant to specific jurisdiction,2 Plaintiffs’ petition alleged the following as

to the individual Gramercy defendants: Each is a Delaware LLC with a principal

place of business in Connecticut. At relevant times, each “has done and is doing

business in” Texas, and “has contracted with a corporation through its Texas

office, and either party was to perform the contract in whole or in part” in Texas.

Each has “committed torts, in whole or in part, in the State of Texas, including

intentional tortious acts directed at a resident of the State of Texas, where the brunt

of the harm was felt.” Their “conduct in the State of Texas has been committed by

officers, directors, employees, and/or agents . . . acting within the scope of their

employment or agency.” They have “purposefully availed [themselves] of the

benefits and protections of the laws of the State of Texas and could reasonably

anticipate being subject to the jurisdiction of the courts of the State of Texas.”

2. The Tax Shelter Scheme

Plaintiffs’ petition describes the tax-shelter scheme and the bases for their

suit:

2

Plaintiffs allege only specific, not general, personal jurisdiction over the Gramercy

defendants.

4

Plaintiffs bring this action against the Strategy Defendants3

based on their understanding of what the Internal Revenue Service

(IRS) has apparently concluded during the IRS’ audit of Plaintiffs’ tax

returns. Plaintiffs bring claims for breach of fiduciary duty,

negligence/professional malpractice, negligent misrepresentation,

disgorgement of unethical, excessive and illegal fees, fraudulent

inducement, fraudulent concealment; declaratory judgment; fraud,

civil conspiracy to commit fraud, and breach of contract against the

Strategy Defendants . . . . Plaintiffs seek compensatory damages

against the Defendants for damages arising from certain investment

strategies that Plaintiffs entered into and utilized On their federal tax

returns for the tax years 2000 through 2005 (“Investment Strategies”)

as set forth more fully below. Unbeknownst to Plaintiffs, the Strategy

Defendants jointly and in concert developed, promoted, sold, and

implemented the Investment Strategies as part of a conspiracy to

commit fraud. [Morgan Lewis & Bockius LLP (“MLB”)] conspired

with BDO to perpetrate fraud on Plaintiffs in connection with BDO’s

(and specifically BDO’s Tax Solutions Group) design, promotion,

sale, and implementation of Plaintiffs’ Investment Strategies.

....

Unbeknownst to Plaintiffs, BDO Seidman entered into

undisclosed and illegal business arrangements with MLB, the other

Strategy Defendants . . . . Through these arrangements, BDO

Seidman, and Gramercy systematically identified wealthy potential or

existing clients facing substantial capital gain or income taxes. Then,

playing on their position of trust, confidence, and prestige with their

clients, BDO Seidman and Gramercy - in accordance with the

Strategy Defendants’ pre-planned and fraudulent scheme – steered

clients such as Plaintiffs to the Strategy Defendants and others for

legal, financial, investment, and tax advice and related products.

BDO Seidman and Gramercy advised their clients, including

Plaintiffs, that their tax and investment professionals had designed

proprietary tax-advantaged investment plans that would provide

Plaintiffs with the potential of high return on their investments and at

the same time minimize capital gain and income tax obligations.

3

The “Strategy Defendants” include the Gramercy defendants, as well as BDO

Seidman LLP, Sidley Austin, LLP, De Castro, West, Chodorow, Glickfelf & Nass,

LLC, and Financial Strategy Group PLC.

5

According to the Criminal Information filed by the United States

against Michael Kerekes (a former principal at BDO Seidman and

member of the Tax Solutions Group), BDO Seidman, in furtherance

of the conspiracy, developed a template consulting agreement for use

in the tax shelter transactions. See U.S v. Kerekes, Information at p.

11, 16. This consulting agreement was deliberately broad and vague

and did not specifically refer to the tax shelter transactions. Id. The

purpose of the consulting agreement was to conceal the actual fees

paid to BDO in connection with the tax shelter transactions so that

only a portion of the fees would be considered when conducting a

profitability analysis of the tax shelter transaction. Id. Plaintiffs were

fraudulently induced to enter into these consulting agreements with

BDO, as well as the agreement with Gramercy, Sidley Austin, De

Castro West, and the Other Participants, in connection with the

Investment Strategies.

Each of the participating Strategy Defendants knew or should

have known that these purported tax advantaged investment strategies

were, in reality, likely to be held by the IRS as nothing more than

illegal and abusive tax shelters. To profit from their scheme, the

Strategy Defendants counted on their ability to conceal the true nature

of the strategies from tax authorities and Plaintiffs.

Unbeknownst to Plaintiffs, BDO Gramercy, Sidley Austin, De

Castro West, Financial Strategy Group and others (including Lehman)

jointly conspired to design the Investment Strategies before BDO and

Gramercy, with the assistance of others including MLB and Financial

Strategy, executed their plan to promote and sell the Investment

Strategies to their own clients - such as Plaintiffs. Unbeknownst to

Plaintiffs, Sidley Austin and De Castro West agreed that BDO

Seidman and Gramercy could promise prospective clients, such as

Plaintiffs, that they would receive tax opinion letters certifying the

soundness and legality of the Investment Strategies being sold. For a

substantial fee Sidley Austin and De Castro West issued tax opinions

to Plaintiffs that purported to substantiate the bona fides of certain of

the Investment Strategies. Unbeknownst to Plaintiffs, these opinion

letters were not specifically tailored to Plaintiffs’ specific financial

situations, but were merely “fill in the blank” boilerplate opinions

provided as part of a “pre-wired” scheme.

Despite the Strategy Defendants’ knowledge that the IRS would

likely deny the Investment Strategies, Financial Strategy and BDO

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prepared certain federal tax returns for an entity used to implement the

Investment Strategies, and the Strategy Defendants advised Plaintiffs

to file individual federal tax returns implementing the Investment

Strategies. Even after the Strategy Defendants learned that the IRS

had begun to audit and disallow capital and other losses claimed

through similar tax strategies, the Strategy Defendants continued to

advise Plaintiffs to use the Investment Strategies to offset income

and/or capital gains on their income tax returns.

After BDO and/or Gramercy convinced their clients to pursue

the tax advantaged investment strategies, Gramercy and BDO jointly

worked with each client to execute the technical portion of the

Investment Strategies. . . . . At no point in time did BDO, Gramercy,

Sidley Austin, De Castro West, Financial Strategy or the Other

Participants ever disclose to Plaintiffs that they had fraudulently

conspired together to design, promote, sell and implement the

Investment Strategies, and were in no way independent from each

other.

[U]nbeknownst to Plaintiffs, the Strategy Defendants designed

the Investment Strategies and agreed to provide a veneer of legitimacy

to each other’s opinions as to the lawfulness and tax consequences of

the Investment Strategies by agreeing to the representations that

would be made and to issue the allegedly “independent” opinions

before potential clients were solicited. Unbeknownst to Plaintiffs,

these “independent” opinions were prefabricated and canned opinions

used for each and every client across the United States with basic

factual information inserted depending upon the client.

....

Unbeknownst to Plaintiffs, the Strategy Defendants entered into

the Strategy Defendants’ arrangement, whereby they agreed they

would solicit each other’s clients and split the fees to be charged

clients who executed strategies such as the Investment Strategies,

including Plaintiffs. Indeed, BDO and Gramercy had an undisclosed

agreement that required BDO to pay Gramercy part of the fee that the

clients - including Plaintiffs - paid to BDO. Of course, neither BDO

nor Gramercy disclosed this fee splitting arrangement with plaintiffs,

Nothing says “conspiracy” like an undisclosed fee-splitting agreement

between professional advisors who represented to the Plaintiffs that

they were completely independent.

7

3. BDO and Gramercy “pitch” of the Investment Strategies to

Plaintiffs

Plaintiffs’ petition alleges that BDO and Gramercy were responsible for

pitching the Investment Strategies to Plaintiffs. In September 2000, BDO

representatives first reached out to request a meeting with certain Plaintiffs.

Plaintiffs Lowry and Chabaud and their personal accountant attended with the

understanding that the purpose of the meeting was to “educate Plaintiffs on the

types of services and expertise BDO had to offer Plaintiffs and for BDO to become

family with Plaintiffs and Plaintiffs’ business.” Plaintiffs were required to sign a

non-disclosure agreement at the beginning of the meeting, and then were told that

“BDO had developed several ‘investment’ strategies that met the criteria for

Plaintiffs’ financial, investment and tax needs.” These strategies were described as

having “significant tax benefits because they took advantage of certain loopholes

contain the in the IRS code with respect to partnerships,” that were “completely

legal and valid.”

According to Plaintiffs’ petition, in this initial meeting with BDO

representatives, Gramercy’s role first entered the picture:

Shanbrom [a member of BDO’s Tax Group] described a particular

investment strategy involving foreign distressed debt. According to

Shanbrom, Plaintiffs could invest in foreign distressed debt and after

executing the proprietary strategy, Plaintiffs would be able to legally

take a loss in the distressed debt through the application of certain

partnership tax rules; Shanbrom and Moorman [of BDO] reassured

Plaintiffs that the distressed debt strategy was completely legal and

8

informed Plaintiffs that all of the big accounting firms were

implementing similar types of tax-advantaged investment strategies.

Shanbrom informed Plaintiffs that he had personally engaged in a

distressed debt strategy and also provided Plaintiffs with information

regarding the total number of BDO’s clients that had implemented

these types of strategies and the combined size of these clients’

strategies.

Pursuant to BDO’s undisclosed agreement with Gramercy, Shanbrom

recommended that Plaintiffs engage Gramercy to assist BDO in the

implementation of the distressed debt strategy. . . .

Shanbrom recommended that if Plaintiffs decided to implement the

distressed debt strategy, Plaintiffs should also invest substantial

amounts of money (and as much money as possible) with Gramercy

unrelated to the distressed debt strategy. According to Shanbrom,

these unrelated investments would provide Plaintiffs with a diversified

portfolio that allowed Plaintiffs to achieve higher rates of return and

would, at the ·same time, strengthen Plaintiffs’ position in the event

the IRS audited Plaintiffs’ tax returns. Specifically, Shanbrom

recommended that Plaintiffs invest $15,000,000.00 with Gramercy in

addition to the investments made with Gramercy for the distressed

debt strategy.

Plaintiffs’ allege that a Gramercy representative, Jay Johnston, was present

at their second meeting, held in Texas on November 7, 2000, about the Investment

Strategy. This was the first time Plaintiffs came face-to-face with or talked to a

Gramercy representative:

Plaintiffs Lowry, Chabaud, and Moffitt and Plaintiffs’ personal

accountant and real estate attorney attended another meeting with

Shanbrom and Moorman on November 7, 2000, in Houston, Texas.

Defendant Jay Johnston, a principal at Gramercy, was also present at

this meeting. Plaintiffs had no prior relationship with Gramercy or Jay

Johnston until BDO, pursuant to their undisclosed agreement with

Gramercy, introduced Plaintiffs to Gramercy at this meeting.

9

During the November 7 meeting, Shanbrom and Jay Johnston

discussed in detail the steps of the distressed debt strategy with

Plaintiffs and repeatedly reiterated that it was a completely legal tax-

reducing strategy, Shanbrom and Jay Johnston again stressed that if

Plaintiffs wanted to implement a distressed debt strategy for the 2000

tax year, Plaintiffs needed to make an investment with Gramercy in

November 2000. Shanbrom and Johnston presented the distressed

debt strategy as a take it or leave it offer and reiterated that Plaintiffs

must make a decision almost immediately.

Shanbrom and Johnston told Plaintiffs that if the IRS challenged the

validity of the distressed debt strategy, Plaintiffs would prevail.

Shanbrom emphasized that BDO felt so confident about the strategy

that BDO would represent Plaintiffs in any IRS audit as part of the fee

Plaintiffs paid BDO to execute the distressed debt strategy. Further,

Shanbrom and Johnston told Plaintiffs that Sidley Austin, a reputable

law firm, would issue “independent” opinion letters confirming the

propriety of the distressed debt strategy. According to Shanbrom and

Johnston, Defendant R.J. Ruble (a partner at Sidley Austin) would

draft the Opinion letters, Shanbrom and Johnston told Plaintiffs that

Ruble was the recognized expert with respect to distressed debt

strategies. Shanbrorn and Johnston advised Plaintiffs that Sidley

Austin was completely “independent”' from BDO and would therefore

issue “independent” opinion letters, which would provide the required

legal support to confirm the propriety of the strategy and overcome

any IRS challenge and, equally as important, would provide absolute

penalty protection.

Shanbrom and Johnston recommended that Plaintiffs undertake a

distressed debt strategy that would be implemented over a 5 year

period, beginning in tax year 2000. Shanbrom and Johnston told

Plaintiffs that BDO and Gramercy would handle the design and

implementation of the distressed debt strategy.

....

Pursuant to BDO and Gramercy’s advice and instructions, Plaintiffs

entered into consulting agreements with. BDO. Unbeknownst to

Plaintiffs, BDO and Gramercy had an agreement that required BDO to

pay Gramercy part of the fees that Plaintiffs paid to BDO. The fees

paid to BDO were based on the amount of tax losses created by the

10

distressed debt strategy. Plaintiffs also entered into investment

management agreements with Gramercy with respect to the money

that Plaintiffs invested with Gramercy that was unrelated to the

distressed debt strategy.

Pursuant to BDO and Gramercy’s advice and instructions, Plaintiffs

opened accounts and made investments (unrelated to the tax-reducing

strategies) with Gramercy in November 2000.

4. Implementation of the Investment Strategies and the IRS

Notices

Plaintiffs’ petition describes the Investment Strategies undertaken in the

years 2000 through 2005, as well as the IRS notices issued that bore on the legality

of the strategies.

a. IRS Notice 1999-59

On December 27, 1999, almost a full year before Plaintiffs claim the

Investment Strategies were pitched to them by various defendants, the IRS issued

Notice 1999-59 entitled “Tax Avoidance Using Distribution of Encumbered

Property.” That notice stated that the IRS and Treasury Department had become

aware of “certain types of transaction . . . that are being marketed to taxpayers for

the purpose of generating tax losses.” Specifically, it noted that artificial losses are

being created through a “contrived series of steps, [through which] taxpayers

claimed tax losses for capital outlays that they have in fact recovered.” It reiterated

that artificial losses are not allowed for income tax purposes.

Plaintiffs petition asserts that, despite the “clear message” from the IRS in

Notice 1999-59 that “purported losses arising from transactions wholly lacking in

11

‘economic substance’” are disallowed, the Strategy Defendants “failed to discuss

and analyze the effect and significant of this IRS Notice.”

b. IRS Notice 2000-44

In August 2000, the IRS issued another notice, Notice 2000-44 entitled “Tax

Avoidance Using Artificially High Basis,” which Plaintiffs allege clearly reiterated

that the Investment Strategies being pitched to Plaintiffs were illegal and abusive

tax shelters. This notice specified the precise transaction marketed to the

Plaintiffs, under which a taxpayer purchases call options and simultaneously writes

offsetting call options, transfers the option positions to a partnership, and

ultimately claims that the basis in the partnership interest “is increased by the cost

of the purchased call options but is not reduced under [IRC] §752 as a result of the

partnership’s assumption of the taxpayer’s obligation.” The Notice stated that the

“purported losses from these transactions (and from any similar arrangements

designed to produce non-economic tax losses by artificially overstating basis in

partnership interest) are not allowable as deductions for Federal income tax

purposes.”

Plaintiffs allege that various defendants failed to tell them about the IRS’s

position to their detriment.

12

c. 2000 Digital Option Strategy

“Plaintiffs R.K. Lowry Jr., L-Falling Creek LLC, Russell A. Chabaud, R-

Rac Wimbledon, LLC, John Moffitt, J-Jason, LLC, and LMC Recovery Fund LLC

entered into tax strategies involving the purchase and sale of digital options on

foreign currency (the ‘2000 Digital Options Strategy’).” According to Plaintiffs’

petition, BDO and Gramercy determined that, for the year 2000, there was not

enough time to implement the agreed upon distressed debt strategy, so they instead

implemented a Digital Options 4 Strategy with Plaintiffs’ money for the 2000 tax

year. Plaintiffs further alleged that, “unbeknownst to Plaintiffs, BDO and

Gramercy dipped into the money Plaintiffs had deposited in a separate Gramercy

account for investments wholly unrelated to the tax-reducing strategy and used

$750,000 to execute the digital options necessary to implement the 2000 Digital

Options Strategy.”

Plaintiffs allege that Digital Option Strategies were developed and marketed

from 1991 to 1999 by a partner at Jenkens & Gilchrist. See The Diversified Grp.,

Inc. v. Daugerdas & Jenkens & Gilchrist, 139 F. Supp. 2d 445 (S.D.N.Y. 2001).

To implement the strategy, Plaintiffs formed a single member LLC to purchase and

sell digital options on foreign currency. Some of the options Plaintiffs purchased

through their LLCs allowed Plaintiffs to enter into one of two “forward foreign

4

Digital options provide an investor the opportunity to gain or lose a pre-

determined amount in full if a strike price is met.

13

currency contracts whereby Plaintiffs pay out or received a predetermined amount

in foreign currency.” 5 Each option involving forward foreign currency contracts

was offset by another option, providing foreign currency contracts with identical,

but otherwise opposite, payouts. In other words, the options were issued in

offsetting pairs with different, but narrow, strike prices.

Then Plaintiffs Lowry, Chabaud, and Moffit, through their respective LLCs,

contributed their options to another newly formed LLC (“Fund LLC”). On the

options expiration date, the digital options expired, creating a gain or loss. With

regard to the options involving forward foreign currency contracts, Plaintiffs then

exercised their rights or obligations on the underlying foreign currency contracts,

resulting in a gain or loss (depending on the foreign currency exchange rate).

Next, Plaintiffs made a capital contribution of cash or capital assets to the

Fund LLC. The defendant law firms opined that the Fund LLC would be treated as

a partnership for tax purposes. Then Plaintiffs then contributed their partnership

Fund LLC interest to an S Corporation.

Finally, the S Corporations sold the capital or ordinary assets contributed by

the Individual Plaintiffs. Because the assets had an artificially inflated basis, their

sale lead to substantial losses that Plaintiffs were told to use to offset gains or

income on their tax return.

5

A foreign currency forward contract obligates its parties to exchange currency at a

prespecified exchange rate on a future date.

14

According to Plaintiffs, they were not told that their 2000 Digital Options

Strategy was required to be disclosed on their tax returns. Defendants also failed

to register the 2000 Digital Options Strategy as a tax shelter with the IRS. The

Plaintiffs that participated in the 2000 Digital Option Strategy allege that they

would have refused to participate had they been fully and properly informed.

Sidley Austin provided the promised opinion letter that the positions were legal

and that Plaintiffs would not be subject to any IRS penalties related to their tax

positions.

Plaintiffs further allege that the Strategy Defendants acted in their own

interest rather than Plaintiffs’ interest when they told Plaintiffs not to participate in

a 2001 IRS amnesty program aimed at these types of transactions. Plaintiffs allege

a conflict of interest, as the amnesty program required taxpayers to disclose the

names of all of the individuals and entities involved in the marketing, sale, or

implementation of the tax position, or who received a fee.

d. 2001 Distressed Debt Strategy

In 2001, Plaintiffs Lowry, Falling Creek LLC, Chabaud, Rac Wimbledon,

LLC, Moffitt, J. Jason, LLC, Chabaud (as Trustee of the Russell G. Chabaud 1999

Investment Trust, the Ashley Chabaud 1999 Investment Trust, and the Audrey

Chabaud 1999 Investment Trust), R-Russell Wimbledon LLC, R-Ashley

15

Wimbledon LLC, R. Audrey Wibledon, LLC, and LMC Recovery Fund LLC

entered into the 2001 Distressed Debt Strategy.

To implement, in April 2001 and July 2001 Plaintiffs made capital

contributions to LMC Recovery Fund. Brazilian and Bulgarian companies then

contributed certain distressed debt assets 6 to the Gramercy Local Markets

Recovery Fund, LLC, which, in turn, contributed the distressed debt instruments to

LMC in exchange for a membership interest therein. The plaintiffs purchased

additional interest in LMC from the Brazilian and Bulgarian interest-holders.

Finally, LMC sold a portion of the distressed debt instruments, generating losses.

Sidley Austin’s opinion letters again advised that these transactions were

legal and that LMC Recovery Fund LLC would be treated as a partnership for tax

purposes. Plaintiffs and other contributors to LMC (Gramercy Local Markets

Recovery Fund and the Brazilian and Bulgarian companies) would be considered

the partners. BDO Seidman prepared the 2001 federal return for LMC and

provided a copy of the return to Plaintiffs. In reliance on the 2001 Strategy

Defendants’ advice, plaintiffs included—on their individual 2001 tax returns—the

losses purportedly generated from the 2001 distressed debt strategy.

6

Distressed debt instruments are those that can be purchased at a significant

discount from the face value, such that they have a significant built-in loss through

their high basis but low value.

16

With regard to this transaction, Plaintiffs assert that BDO Seidman,

Gramercy, and Sidley Austin committed fraud in inducing them to participate in

the distressed debt transactions. They assert that each of these defendants made

“various false statements of material fact and omitted to state material facts that

made the statements misleading to Plaintiffs.” The purpose, Plaintiffs allege, was

“to generate fees by promoting an alleged tax-saving strategy.” Plaintiffs would

not, they claim, have participated in the 2001 Distressed Debt Strategy had these

defendants not deceived the Plaintiffs.

e. 2002 - 2008 Distressed Debt Strategy

Aside from a change in the law firm providing the opinion letters and a

different firm preparing some of the entities’ tax returns, the 2002–2008 Distressed

Debt Strategies were identical in structure—and basically continuations—of the

2001 Distressed Debt Strategy.

C. The Trial Court Proceedings

Following extensive briefing, the trial court denied the Gramercy

Defendants’ special appearance at an October 17, 2013 hearing. The Gramercy

defendants timely filed this accelerated appeal.

ISSUE ON APPEAL

In a single issue, the Gramercy defendants challenge the trial court’s order

denying their special appearance:

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Did the district court err in denying Gramercy’s Amended Special

Appearance and exercising personal jurisdiction over Gramercy when

Appellees conceded Gramercy was not subject to general jurisdiction,

and when there was virtually no connection between Gramercy’s

Texas contacts and the misconduct forming the basis of Appellees’

claims?

THE GRAMERCY DEFENDANTS’ SPECIAL APPEARANCE AND THE

PLAINTIFFS’ RESPONSE

In their special appearance, the Gramercy defendants contended that the trial

court’s exercise of specific personal jurisdiction over them was improper, as they

lacked sufficient minimum contacts with Texas. Specifically, they argued that it

was BDO, and not the Gramercy defendants, who advised Plaintiffs to engage in a

risky tax-reduction investment strategy. And they cited their written contracts with

Plaintiffs acknowledging that Plaintiffs were not relying upon the Gramercy

defendants for tax advice.

Because the agreement between Gramercy and Plaintiffs specified that

Gramercy did not offer Plaintiffs tax opinions or advice, and because Plaintiffs’

allegation is that they received faulty tax advice, the Gramercy defendants argue

that they have “no place in this lawsuit.”

As evidence, Gramercy proffered two affidavits, summarized here:

Robert Lanava’s affidavit: Lonava is the Managing Director for

Operations for all the Gramercy defendants. Lonava stated that none of the

Gramercy defendants are organized in Texas; each has its principal place of

business in either Connecticut or New York. Gramercy’s business and

financial operations are focused in Connecticut, New York, and overseas.

Gramercy has not had offices or employees operating in Texas.

18

Gramercy did not affirmatively solicit Plaintiffs’ investments. Rather,

Plaintiffs were referred to Gramercy by BDO. The investment services

rendered by Gramercy for Plaintiffs were performed entirely outside of

Texas.

Gramercy has not had an agency relationship with any co-defendant,

and has not “had any contract or other type of agreement with them.”

To the best of Lanava’s knowledge, Plaintiffs’ representatives visited

New York to meet with Gramercy to discuss the proposed investments.

Periodic written communications to Plaintiffs were limited to account

statements and notifications and contracts and other documents that were

sent to Plaintiffs for their signature. Gramercy exchanged emails and

facsimile communications with Plaintiffs incident to the administration of

Plaintiffs’ investments.

The distressed debt and emerging market debt acquired by Plaintiffs

was located in Brazil and the Russian Federation. The currency options

Gramercy procured for Plaintiffs were through firms located in New York

City.

Gramercy did not prepare, review, or file tax returns for Plaintiffs.

A Tennessee district court has dismissed a suit against Gramercy

Advisors for lack of personal jurisdiction.

Jay Johnston’s affidavit: Defendant Johnston is Co-Managing

Member of defendant Gramercy Advisors. Johnston lives in Puerto Rico

and previously resided in Conneticut. He has never lived in Texas; nor has

he had offices or property in Texas.

Johnston did not affirmatively solicit Plaintiffs. Plaintiffs were

referred to Gramercy by BDO.

We regard to his interaction with Plaintiffs, Johnston’s affidavit

further averred:

Plaintiffs invested in distressed Brazilian and certain Russian

assets through Gramercy, and also separately invested in

Gramercy’s emerging market hedge funds. To the best of my

recollection, I may have attended a single meeting in Texas in

late 2000 with Plaintiffs’ representatives and representatives of

BDO Seidman, LLP prior to Plaintiffs ‘investments with

19

Gramercy (I am not certain of the timing). To the best of my

recollection, my participation was limited to a discussion of

Gramercy’s hedge fund operations; a description of emerging

market distressed debt assets to be acquired by Plaintiffs, and a

general description of other financial and transactional aspects

of the services that would be performed by Gramercy on

Plaintiffs’ behalf. I did not address the tax implications of any

transactions conducted for Plaintiffs, the anticipated IRS

position with respect thereto, which I understand to be the

subject of this action.

Following Plaintiffs’ investments with Gramercy, I met with

Plaintiffs in Texas on a few additional occasions at Plaintiffs’

request. However, the purpose of these meetings was solely to

update Plaintiffs with respect to their investments in

Gramercy’s hedge funds. These investments were unrelated to

the transactions subsequently challenged by the IRS which, as I

understand it, form the basis of the instant lawsuit.

Plaintiffs filed objections and a motion to strike the Lanava and Johnston

affidavits “because they are replete with legal conclusions, averments make purely

‘upon information and belief,’ and matters outside the affiants’ personal

knowledge, as well as generally lacking in credibility.” No ruling on these

objections or motion appears in the record.

In their response to the Gramercy defendants’ special appearance, Plaintiffs

disputed that the Gramercy defendants were only investment advisors that lacked

sufficient minimum contacts in Texas. Specifically, they argued:

Gramercy made numerous purposeful contacts with the state

of Texas directly relating to the actions complained of by Plaintiffs in

this case. Gramercy willfully participated in a scheme to defraud

Plaintiffs, all of whom are Texas residents. Gramercy met face-to-face

with Plaintiffs in Texas on numerous occasions to market, sell, and

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implement the tax-reducing investment strategies at issue in this case.

Gramercy’s role was much broader than merely executing investments

strategies determined by others. Instead, Gramercy was actually

involved from the beginning in every aspect of the tax-reducing

investment strategies, including discussing the alleged tax benefits

with Plaintiffs as part of the initial sales pitch in Texas. Contrary to

Gramercy’s position, Gramercy did, in fact, discuss the tax-

advantaged nature of the strategies at Texas meetings and pitched the

tax savings as one of the reasons for doing the deals. Those meetings

alone subject Gramercy to jurisdiction in Texas. Gramercy also

purposefully directed its activities at Texas by:

• Drafting, negotiating, and entering into numerous contracts with

Texas-resident Plaintiffs related to the tax-reducing investment

strategies, which contracts contemplated a longterm relationship

between the parties with performance occurring at least in part

in Texas;

• Managing and holding partnership interests in several entities-

some of which resided in Texas-that were involved in the tax-

reducing investment strategies and selling partnership interests

and distressed debt assets to Texas-resident Plaintiffs;

• Directing and overseeing the preparation of tax returns and

Schedule K -1 s containing the tax losses generated by the tax-

reducing investment strategies for the benefit of Texas resident

Plaintiffs and mailing and, in one instance, hand-delivering the

returns and K -1s to Plaintiffs in Texas;

• Earning millions of dollars from its purposeful actions in Texas

through fees generated by investment management agreements

with Plaintiffs and undisclosed kick-backs from consulting fees

paid by Plaintiffs to BDO;

• Sending regular, monthly account statements to Plaintiffs in

Texas, setting up a secure website for Plaintiffs to view account

information from Texas, and inviting Plaintiffs to participate in

quarterly conference calls from Texas; and

• Marketing and selling tax-reducing investment strategies-similar

to the ones sold to Plaintiffs-to other Texas clients.

21

As evidence in support, the Plaintiffs proffered affidavits by Plaintiffs

Chabaud, Deary, Lowry, and Moffitt, as well as affidavits by Plaintiffs’ accountant

and lawyer. In these affidavits, Plaintiffs averred that, at the September 26, 2000

meeting with BDO, BDO representatives pitched the distressed-debt strategy and

recommended that Plaintiffs engage Gramercy to assist BDO. Plaintiffs did not

initiate the follow-up November 7, 2000 meeting with BDO and Gramercy’s

principal, Jay Johnston. At that meeting, Johnston introduced himself as a

principal with Gramercy, and “Johnston and Shanbrom [with BDO] worked

together equally on the ‘pitch’ that was made to [Plaintiffs] during the meeting.”

Both Shanbrom and Johnston touted R.J. Ruble, a partner with Sidley Austin, as

the recognized expert on distressed debt strategies. Shanbrom explained that an

opinion letter from Ruble would shield Plaintiffs from liability with the IRS.

“Johnston reiterated that Ruble was an expert in this area, Sidley Austin was a

qualified and reputable law firm, and Gramercy had experienced good results from

Sidley Austin on these types of transactions in the past.”

Plaintiffs’ affidavits further provided that Shanbrom represented, and

Johnston confirmed, that investing with Gramercy in areas other than distressed

debt would offer diversity and improve Plaintiffs’ position with the IRS. Both

“Johnston and Shanbrom assured [Plaintiffs] that the Investment Strategies were

legal.”

22

Plaintiffs also averred that Johnston and Shanbrom again met with Plaintiffs

and their accountant in Houston on January 11, 2001, to discuss the digital options

strategy and other investments with Gramercy. Plaintiffs averred that they again

met with Johnston and BDO representatives on May 8, 2001 in Houston.

According to Plaintiffs, during that meeting, which was requested by Gramercy,

they “discussed the opinion letters drafted by Sidley Austin concerning the legality

of the Investment Strategies and had a broad discussion about [each individual

Plaintiffs’] tax loss needs for 2001.” Plaintiffs’ affidavits highlight several other

meetings with Gramercy principals to discuss tax matters and investments.

STANDARD OF REVIEW

Whether a trial court has personal jurisdiction over a nonresident defendant

is a question of law. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d

777, 790–91 (Tex. 2005); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

789, 794 (Tex. 2002). Because the trial court’s exercise of personal jurisdiction

over a nonresident defendant is one of law, an appellate court reviews the trial

court’s determination of a special appearance de novo. Moki Mac River

Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software, 83

S.W.3d at 794. However, the trial court must frequently resolve fact questions

before deciding the jurisdictional question. BMC Software, 83 S.W.3d at 794;

Capital Tech. Info. Servs., Inc. v. Arias & Arias, Consultores, 270 S.W.3d 741, 748

23

(Tex. App.—Dallas 2008, pet. denied) (en banc). In a special appearance, the trial

court is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. Ashdon, Inc. v. Gary Brown & Assocs., 260 S.W.3d 101, 116 (Tex.

App.—Houston [1st Dist.] 2008, no pet.).

We do not “disturb a trial court’s resolution of conflicting evidence that

turns on the credibility or weight of the evidence.” Ennis v. Loiseau, 164 S.W.3d

698, 706 (Tex. App.—Austin 2005, no pet.). When a trial court does not issue

findings of fact or conclusions of law, “all facts necessary to support the judgment

and supported by the evidence are implied.” BMC Software, 83 S.W.3d at 795. We

will affirm the trial court’s ruling on any legal theory that finds support in the

record. Dukatt v. Dukatt, 355 S.W.3d 231, 237 (Tex. App.—Dallas 2011, pet.

denied).

PERSONAL JURISDICTION

The Texas long-arm statute permits Texas courts to exercise jurisdiction

over nonresident defendants. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 17.041–

.045 (West 2014); PHC—Minden, L.P. v. Kimberly—Clark Corp., 235 S.W.3d

163, 166 (Tex. 2007); BMC Software, 83 S.W.3d at 795. It extends Texas courts’

personal jurisdiction “as far as the federal constitutional requirements of due

process will permit.” PHC–Minden, 235 S.W.3d at 166 (quoting U–Anchor

Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)).

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The Due Process Clause of the Fourteenth Amendment operates to limit the

power of a state to assert personal jurisdiction over a nonresident defendant. Asahi

Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano Cnty., 480 U.S. 102, 108,

107 S. Ct. 1026, 1030 (1987); Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 413–14, 104 S. Ct. 1868, 1872 (1984). Under the Due Process

Clause, personal jurisdiction over a nonresident defendant is constitutional when

the nonresident defendant has established minimum contacts with the forum state

and the exercise of jurisdiction comports with traditional notions of fair play and

substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S. Ct.

2174, 2184 (1985); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154,

158 (1945). Minimum contacts are sufficient to support the exercise of personal

jurisdiction if they show that the nonresident defendant has “purposefully availed”

itself of the privilege of conducting activities within the forum state, thus invoking

the benefits and protections of its laws. See Int’l Shoe Co., 326 U.S. at 319, 66 S.

Ct. at 160; Michiana, 168 S.W.3d at 784.

The plaintiff bears the initial burden of pleading sufficient allegations to

bring a nonresident defendant within the provisions of the Texas long-arm statute.

Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); Moki Mac,

221 S.W.3d at 574. The nonresident defendant then has the burden of negating all

bases of jurisdiction alleged in the plaintiff’s petition. Kelly, 301 S.W.3d at 657–

25

58; Moki Mac, 221 S.W.3d at 574. The defendant can introduce evidence

disproving the plaintiff’s factual allegations, or show that the defendant’s contacts

with the forum state “fall short of purposeful availment,” or demonstrate that

“traditional notions of fair play and substantial justice are offended by the exercise

of jurisdiction.” Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d

723, 728 (Tex. App.–Houston [14th Dist.] 2013, pet. denied) (en banc). If specific

jurisdiction is at issue, then the defendant also can show that the plaintiff’s claims

do not arise from the defendant’s contacts with Texas. Id.

ANALYSIS

State statutory and federal due-process requirements are satisfied if (a) a

nonresident has minimum contacts with Texas, and (b) exercise of personal

jurisdiction over the nonresident does not offend traditional notions of fair play and

substantial justice. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414,

104 S. Ct. at 1872.

We first look to whether Plaintiffs have sufficiently pleaded a basis for the

trial court to exercise specific jurisdiction over the Gramercy defendants. Kelly v.

General Interior Construction, Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). Then

we review the evidence proffered by the Gramercy defendants (as well as

Plaintiffs’ evidence in response), to determine if Gramercy negated all pleaded

bases for jurisdiction. Id.

26

A. Minimum Contacts

Minimum contacts suffice for personal jurisdiction when the nonresident

purposefully avails itself of the privilege of conducting activities within the forum

state, and thus invokes the benefits and protections of its laws. Moki Mac, 221

S.W.3d at 575. The crux of the Gramercy defendants’ argument is that Plaintiffs’

claims relate to tax advice, Plaintiffs disclaimed reliance on Gramercy’s tax advice,

and, therefore, any contact Gramercy had with Texas cannot be sufficiently related

to Plaintiffs’ claims to confer personal jurisdiction over Gramercy. We disagree.

Preliminarily, we note that the Gramercy defendants’ arguments conflate

liability with jurisdiction. The Texas Supreme Court has expressly rejected an

approach “equating the jurisdictional inquiry with the underlying merits,” noting

that would allow a nonresident defendant to “defeat jurisdiction by proving that

there was no tort.” Michiana Easy Livin’ Country Inc. v. Holten, 168 S.W.3d 777,

789 (Tex. 2005). Accordingly, to the extent that the Gramercy defendants argue

that the contractual disclaimers of reliance signed by Plaintiffs negate jurisdiction

because they purport to limit or reduce the Gramercy defendants’ liability related

to tax advice, we reject that argument. See, e.g., Citrin Holdings, LLC v. Minnis,

305 S.W.3d 269, 283 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

We also conclude that the Gramercy defendants’ interpretation of the

Plaintiffs’ claims, and the alleged contacts that are related to those claims, is too

27

narrow. We analyze these contacts to determine if the Gramercy “purposefully

availed itself of the privilege of conducting activities in Texas” considering three

factors articulated by the supreme court:

First, only the defendant’s contacts with the forum are relevant, not

the unilateral activity of another party or a third person. Second, the

contacts relied upon must be purposeful rather than random,

fortuitous, or attenuated. Thus, sellers who reach out beyond one state

and create continuing relationships and obligations with citizens of

another state are subject to the jurisdiction of the latter in suits based

on their activities. Finally, the defendant must seek some benefit,

advantage or profit by availing itself of the jurisdiction.

Moncrief Oil Int’l v. OAO Gazprom, 414 S.W.3d 142, 151 (Tex. 2013).

Applying this standard to the contacts with Financial Strategy Group—a

nonresident company hired by Gramercy to prepare tax returns for a nonresident

Fund used in implementing the Investment Strategies—we concluded that its

contacts were too attenuated to give rise to jurisdiction in Texas. Fin. Strategy

Grp., 2015 WL 452265, at *11. The Gramercy connections alleged here by

Plaintiffs, however, are much greater and more purposeful than Financial Strategy

Group’s alleged contacts.

Jurisdiction is proper “where the contacts proximately result from actions by

the defendant himself that create a substantial connection with the forum State.”

Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 475, 105 S. Ct.

2174 (1985) (quotation marks omitted)). A substantial connection can result from

even a single act. Id. (citing McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.

28

Ct. 199, 222 (1957)). But the unilateral activity of another person cannot create

jurisdiction. Id. (citing Burger King, 471 U.S. at 475, 105 S. Ct. at 2174).

Physical presence in the state is not required but “frequently will enhance a

potential defendant’s affiliation with a State and reinforce the reasonable

foreseeability of suit there.” Id. (quoting Burger King, 471 U.S. at 476, 105 S. Ct.

2174). 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.” Id. (quoting Burger King, 471 U.S. at 474,

105 S. Ct. 2174).

“It is beyond dispute that [a forum] has a significant interest in redressing

injuries that actually occur within the State.” Keeton v. Hustler Magazine, Inc.,

465 U.S. 770, 776, 104 S. Ct. 1473, 1479 (1984). Accordingly, states have a

strong interest “in exercising judicial jurisdiction over those who commit torts

within its territory.” Id. “This is because torts involve wrongful conduct which a

state seeks to deter, and against which it attempts to afford protection, by providing

that a tortfeasor shall be liable for damages which are the proximate result of his

tort.” Id.

The Gramercy defendants cite several cases applying these standards to hold

that the courts lacked personal jurisdiction in a variety of contexts, despite the

nonresident defendants’ attending meetings in the forum at issue. See, e.g.,

29

Gustafson v. Provider Healthnet Servs., Inc., 118 S.W.3d 479, 484 (Tex. App.—

Dallas 2003, no pet.) (defendant’s attendance at two Texas meetings did not give

rise to specific jurisdiction, in part because plaintiff did not allege defendant

“breached any duties to it or committed any torts during these meetings”);

Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir. 1999) (“Its mere

presence at the three meetings in Houston, together with the noted correspondence

and phone calls, is not sufficient to establish the requisite minimum contacts

because the record is devoid of evidence that Ruhrgas made false statements at the

meetings or that the alleged tortious conduct was aimed at activities in Texas”);

Turan v. Universal Plan Inv. Ltd., 10 F. Supp. 2d 671, 674 (E.D. La. 1999), aff’d in

part 248 F.3d 1139 (5th Cir. 2001) (“Travels to business meetings, conversations

on the telephone, and correspondences by mail are not sufficient to establish

minimum contacts unless there is evidence that the plaintiffs’ claims directly arise

from those specific activities.”); Bozell Grp., Inc. v. Carpet Co-op of Am. Ass’n,

Inc., No. 00 CIV. 1248(RWS), 2000 WL 1523282 (S.D.N.Y. 2000) (holding that

two trips to forum and phone calls were insufficient to confer jurisdiction over

nonresident defendant under New York’s long-arm statute because these contacts

fell short of “conducting business” in New York, and because there lacked a

sufficient nexus between the contacts and the plaintiff’s claim).

30

In contrast, Plaintiffs cite numerous cases for the proposition that “[c]ourts

uniformly exercise specific jurisdiction where a nonresident defendant attended

meetings in Texas concerning the facts of the lawsuit.” See, e.g., Moncrief, 414

S.W.3d at 153–54 (“Because the Gazprom Defendants attended two Texas

meetings, at which they accepted Moncrief’s alleged trade secrets regarding a

proposed joint venture in Texas, their contacts were not unilaterally from

Moncrief, nor were they random and fortuitous.”); Max Protetch, Inc. v. Herrin,

340 S.W.3d 878, 887–88 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding

that personal jurisdiction over New York company was supported in part by

misrepresentations made by New York defendant while at Texas meeting);

Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840, 849 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (rejecting argument that nonresident

defendant attending two Texas meetings and participating in phone calls were too

“isolated, incidental and attenuated” to constitute purposeful availment); Citron

Holdings, LLC, 305 S.W.3d at 283 (affirming trial court’s denial of special

appearance, in part because “the circumstances involve multiple Texas contacts

over many months in the course of an ongoing relationship that ‘was not

unilaterally initiated by the Texas resident’”).

Plaintiffs’ claims here are more like the cases cited by Plaintiffs than by the

Gramercy defendants. Plaintiffs allege that Gramercy and each of the other

31

defendants represented that they were independent and working in the interest of

Plaintiffs. Plaintiffs further contend that Plaintiffs were fraudulently induced to

enter into various aspects of the several years’ long Investment Strategy based

upon representations by both BDO and Gramercy. Plaintiffs allege that

Gramercy’s representative Johnston praised Sidley Austin (and, later, DeWest

Castro) as reputable law firms with expertise in this area, and steered Plaintiffs to

them for “independent” opinion letters confirming the validity of the distressed

debt strategy when, in reality, Gramercy and the other defendants knew the law

firms were merely churning out fill-in-the-blank opinion letters. Finally, Plaintiffs

allege that Gramercy hid from Plaintiffs its agreement with BDO requiring BDO to

pay a portion of the consulting fees BDO received from Plaintiffs to Gramercy.

According to Plaintiffs’ theory, Johnston (as a representative of Gramercy)

attended a meeting in Texas at which Gramercy specifically targeted Plaintiffs for

longterm business while (1) misrepresenting its role in the development of the

Investment Scheme, (2) knowing that information was being fed to Plaintiffs that

was untrue, and (3) seeking to profit from Plaintiffs’ investments tied to the

Investment Strategies, as well as other investments and the secret payments from

BDO. 7

7

The Gramercy defendants point to the fact that the parties’ investment agreements

have a New York choice-of-law provision, but such a provision is not dispositive

on the issue of purposeful availment and minimum contacts in light of these

32

These alleged contacts, which are substantially connected to Plaintiffs’

claims, amount to purposeful availment for purposes of establishing minimum

contacts. While the Gramercy defendants’ affidavits dispute some of Plaintiffs’

allegations and focus on representations made by BDO to Plaintiffs, we must

presume at this state that “the trial court resolved all factual disputes in favor of its

judgment.” Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806

(Tex. 2002). Because the Gramercy Defendants’ evidence does not conclusively

negate all bases of jurisdiction pleaded by Plaintiffs, e.g., Parex Res., Inc. v. ERG

Res., LLC, 427 S.W.3d 407, 415–16 (Tex. App.—Houston [14th Dist.] 2014, pet.

filed), the Gramercy Defendants have not carried their burden to establish that the

trial court erred in finding sufficient minimum contacts.

B. Traditional Notions of Fair Play and Substantial Justice

To affirm the trial court’s denial of the Gramercy defendants’ special

appearance, we must also determine that the court’s exercise of personal

jurisdiction would not offend traditional notions of fair play and substantial justice.

To answer this question, courts generally look to (1) the burden on the defendant;

(2) the interests in the forum state in adjudicating the dispute; (3) the plaintiff’s

interests in obtaining convenient and effective relief; (4) the interstate judicial

allegations. See Citrin Holdings, LLC, 305 S.W.3d at 283 (“[T]he presence of a

New York choice of law provision in the Cargo Ventures Operating Agreement is

not dispositive and is outweighed by the other Texas-centered contacts.”).

33

system's interest in obtaining the most efficient resolution of controversies; and (5)

the shared interest of the states in furthering fundamental substantive social

policies. Burger King, 471 U.S. at 476–77, 105 S. Ct. 2174. The defendant bears

the burden of establishing that the exercise of personal jurisdiction would offend

traditional notions of fair play and substantial justice. Conner v. ContiCarriers &

Terminals, Inc., 944 S.W.2d at 405, 411 (Tex. App.—Houston [14th Dist.] 1997,

no pet.).

Considering the above-listed factors, we conclude that the exercise of

personal jurisdiction in this case is consistent with traditional notions of fair play

and substantial justice. The Gramercy defendants contend that defending this suit

in Texas would be a considerable burden because (1) Gramercy does not have a

business presence in Texas, (2) its files are not in Texas, and (3) a New York

choice-of-law provision governs at least part of the dispute. In support, it cites two

unpublished orders in cases from Illinois finding that jurisdiction over the

Gramercy defendants in that state would offend traditional notions of fair play and

substantial justice.8 The trial court in both concluded that the Illinois courts lacked

jurisdiction over Gramercy because “Plaintiffs and Gramercy Defendants reside

outside of Illinois and none of the alleged transactions in which the Gramercy

8

These orders were issued on November 26, 2014 by the Circuit Court of Cook

County, Illinois in Coe v. BDO Seidman, Cause No. 12 L 13691 and Kaufman v.

BDO Seidman, Cause No. 12 L 13292.

34

Defendants were involved, concerning Plaintiffs, took place in Illinois,” and the

“contract [was] neither negotiated nor performed in” Illinois. Given that here we

have concluded that Gramercy has sufficient minimum contacts with Texas that

exceed its connection to Illinois discussed in those cases, we find the Illinois cases

relied upon by Gramercy to be inapposite.

The Gramercy defendants have not established that this is one of those “rare

cases” in which the exercise of personal jurisdiction offend traditional notions of

fair play and substantial justice, Retamco Operating, Inc. v. Republic Drilling Co,

278 S.W.3d 333, 341–42 (Tex. 2009).

CONCLUSION

We affirm the trial court’s order denying the Gramercy defendants’ special

appearance.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

35