Sebastian Lombardo v. Shouvik Bhattacharyya , 437 S.W.3d 658 ( 2014 )

Affirm and Opinion Filed July 30, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01583-CV
SEBASTIAN LOMBARDO, Appellant
V.
SHOUVIK BHATTACHARYYA, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC13-00133
OPINION
Before Justices Lang, Myers, and Brown
Opinion by Justice Lang
In this interlocutory appeal, Sebastian Lombardo appeals the trial court’s order denying
his special appearance, concluding the trial court had specific jurisdiction over Lombardo, in an
action brought by Shouvik Bhattacharyya, alleging Lombardo is liable for intentional infliction
of emotional distress, defamation, fraud, fraudulent inducement, and negligent misrepresentation.
In five issues, Lombardo alleges the trial court erred when it: (1) overruled his written objection
to Bhattacharyya’s supplemental petition, which was filed four days before the special
appearance hearing, because it alleged new claims for fraud and negligent misrepresentation, and
the surprise was prejudicial; (2) denied his special appearance because he is protected by the
fiduciary shield doctrine since his limited contacts were in his official, corporate capacity as
Chief Executive Officer and Chairman of Valtech, S.A.; (3) denied his special appearance
because there was no allegation or evidence of specific Texas contacts by Lombardo for each
claim, just vague and conclusory allegations of tortious conduct globally alleged against all of
the defendants; (4) the evidence was legally and factually insufficient to support the trial court’s
findings of fact; and (5) denied his special appearance because the exercise of jurisdiction over
Lombardo does not comport with traditional notions of fair play and substantial justice.
We conclude Lombardo did not preserve for appellate review his issue that the trial court
erred when it overruled his written objection to Bhattacharyya’s supplemental petition. Also, we
need not address Lombardo’s claim that the exercise of general jurisdiction is barred by the
fiduciary shield doctrine because the trial court explicitly concluded there was specific
jurisdiction. We conclude Lombardo failed to preserve for appellate review his contention that
the fiduciary shield doctrine barred the exercise of specific jurisdiction. In addition, we conclude
the evidence is legally and factually sufficient to support the trial court’s challenged findings of
fact. Finally, we conclude the trial court did not err when it concluded there were sufficient
contacts with Texas and the exercise of personal jurisdiction over Lombardo comported with
traditional notions of fair play and substantial justice. The trial court’s order denying
Lombardo’s special appearance is affirmed.
I. PROCEDURAL BACKGROUND
Bhattacharyya filed his original petition against Valtech Solutions, Inc., Lombardo, and
Tomas Nores, alleging claims for breach of contract, a declaratory judgment, and attorneys’ fees
against Valtech Solutions, and defamation and intentional infliction of emotional distress against
Valtech Solutions, Lombardo, and Nores. Bahttacharyya’s claims arise from alleged promises
and misrepresentations made to Bhattacharyya by Lombardo and other Valtech executives in
Texas in relation to the acquisition of Adea, Inc., a Dallas-based software and information
technology company, and the compensation promised to Bhattacharyya in relation to the
acquisition, as well as allegedly defamatory statements made that asserted Bhattacharyya had
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stated at the office of Valtech Solutions that he had brought a gun to that office, which were
allegedly published in Texas by Lombardo and others. Bhattacharyya amended his petition to
plead additional facts to support his claims. Valtech Solutions and Nores answered the lawsuit
and counterclaimed.
Lombardo filed a special appearance and his verified statement, in which he identified
himself as the chief executive officer and chairman of the board of Valtech, S.A., and an Italian
citizen, who resides in Belgium and works at the Valtech headquarters in Paris, France. Valtech
Solutions is a wholly-owned subsidiary of Valtech and is based in Dallas, Texas. Bhattacharyya
filed his response to the special appearance, which also contained his verified statement and
attached the declaration of Richard DuPont, the former chief financial officer of Adea and
Valtech Solutions. Before the hearing on Lombardo’s special appearance, Bhattacharyya filed a
supplemental petition adding claims for fraud, fraudulent inducement, and negligent
misrepresentation. Also, before the hearing, Lombardo filed an answer subject to his special
appearance and a hearsay objection to a statement contained in Bhattacharyya’s verified
statement. After a hearing, the trial court denied Lombardo’s special appearance, concluding
there was specific, personal jurisdiction. In addition, the trial court’s order denying Lombardo’s
special appearance contains findings of fact and conclusions of law. 1 After his special
appearance was denied, Lombardo filed his written objection to the Bhattacharyya’s special
appearance, which it appears the trial court overruled. 2 This interlocutory appeal follows.
1
The document in which the findings of fact and conclusions of law are contained is entitled, “Order on Defendant Sebastian Lombardo’s
Special Appearance, Findings of Fact, and Conclusions of Law.” It is a fifteen-page narrative memorandum and the particular findings and
conclusions are not separately identified as findings or conclusions and are not numbered. Accordingly, throughout this opinion, we identify
the findings and conclusions, quoting them to the extent necessary, in order to consider the points raised by the parties.
2
The order is not in the clerk’s record. However, Bhattacharyya does not take issue with this assertion by Lombardo.
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II. BHATTACHARYYA’S SUPPLEMENTAL PETITION
In issue one, Lombardo argues the trial court erred when it denied his objection to
Bhattacharyya’s supplemental petition, which was filed four days before the special appearance
hearing, because it alleged new claims for fraud and negligent misrepresentation, and the
surprise was prejudicial. Lombardo claims that, although he did not object to the supplemental
petition during the hearing, he filed a written objection after the trial court denied his special
appearance, providing the trial court with the opportunity to remedy its error. Bhattacharyya
responds that Lombardo waived this issue because his objection to the supplemental pleading
was untimely.
A. Applicable Law
Texas Rule of Civil Procedure 63 provides:
Parties may amend their pleadings . . . provided, that any pleadings . . . offered for
filing within seven days of trial or thereafter, or after such time as may be ordered
by the judge under Rule 166, shall be filed only after leave of the judge is
obtained, which leave shall be granted by the judge unless there is a showing that
such filing will operate as a surprise to the opposite party.
TEX. R. CIV. P. 63. Accordingly, pleading amendments sought within seven days of the time of
trial are to be granted unless there has been a showing of surprise to the opposite party. Nichols
v. Bridges, 163 S.W.3d 776, 782 (Tex. App.—Texarkana 2005, no pet.). The language of rule 63
allows an amendment to a pleading within seven days of the “date of trial.” TEX. R. CIV. P. 63;
Nichols, 163 S.W.3d at 782. We have found no authority stating specifically that a special-
appearance hearing is a “date of trial” as envisioned by rule 63. Nichols, 163 S.W.3d at 782
However, appellate courts have either assumed without deciding rule 63 applies or have applied
it directly to special appearance hearings. Hale v. Richey, No. 10-11-00187-CV, 2012 WL
89920, at *5 (Tex. App.—Waco Jan. 11, 2012, no pet.) (mem. op.) (assumed without deciding
rule 63 applies to special appearance hearing); Nichols, 163 S.W.3d at 782 (because special
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appearance similar to a summary judgment, construed special appearance hearing as requiring
trial court’s approval to consider amended pleading filed within seven days of hearing date).
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an
appellate complaint. TEX. R. APP. P. 33.1. To preserve a point for appellate review, a party must
make a timely, specific objection or motion to the trial court that states the grounds for the ruling
sought with sufficient specificity, unless the grounds are apparent from the context, obtain a
ruling on the complaint, and comply with the rules of evidence or procedure. TEX. R. APP. P.
33.1.
B. Application of the Law to the Facts
Assuming without deciding that rule 63 required Bhattacharyya to file his supplemental
petition at least seven days before the special-appearance hearing or to obtain leave from the trial
court to file the supplemental petition within seven days of the hearing, Lombardo was still
required to make a timely complaint about the untimeliness of Bhattacharyya’s supplemental
petition. See Hale, 2012 WL 89920, at *5. The record shows that Bhattacharyya filed his
supplemental petition on October 7, 2013. The special-appearance hearing was held on October
11, 2013. During the hearing, Lombardo’s counsel made no objection to the filing of the
supplemental petition, asserted no claim of surprise, and did not request a continuance to
properly respond to the supplemental petition. See Hale, 2012 WL 89920, at *6. Instead,
Lombardo’s counsel advised the trial court “Your Honor, we are prepared—it doesn’t change
any of our positions from a legal standpoint that we will address with the Court.” The trial court
signed its order denying Lombardo’s special appearance on October 22, 2013. Then, on
November 1, 2013, Lombardo filed his written objection to Bhattacharyya’s supplemental
petition. According to the parties, on November 6, 2013, the trial court overruled Lombardo’s
objection to Bhattacharyya’s supplemental petition. We conclude Lombardo did not preserve for
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appellate review his issue that the trial court erred when it overruled his written objection to
Bhattacharyya’s supplemental petition because Lombardo did not make a timely objection. TEX.
R. APP. P. 33.1. Accordingly, we will consider Bhattacharyya’s supplemental petition when
determining whether he alleged sufficient facts to permit the trial court to exercise personal
jurisdiction over Lombardo. See Hale, 2012 WL 89920, at *6.
Issue one was not preserved for appellate review.
III. FIDUCIARY SHIELD DOCTRINE
In issue two, Lombardo argues the trial court erred when it denied his special appearance
because he is protected from the exercise of general and specific jurisdiction by the fiduciary
shield doctrine since his limited contacts were in his official, corporate capacity as chief
executive officer and chairman of Valtech.
A. General Jurisdiction Barred by Fiduciary Shield Doctrine
In the first part of issue two, Lombardo argues the trial court erred when it concluded
there was general jurisdiction over him because he is protected by the fiduciary shield doctrine.
Lombardo contends that Bhattacharyya did not explicitly argue there was general jurisdiction,
the trial court made no findings of fact or conclusions of law with regard to general jurisdiction,
and “the fiduciary shield doctrine insulates [him] from general jurisdiction.” Bhattacharyya
responds that he did not assert general jurisdiction and the trial court found that it had specific
jurisdiction over Lombardo so this issue is irrelevant to this appeal. The trial court’s order
denying Lombardo’s special appearance specifically states, “The Court has specific jurisdiction
over [] Lombardo.” Accordingly, we need not review the part of issue two that argues the trial
court’s conclusion that there was general jurisdiction over Lombardo was barred by the fiduciary
shield doctrine.
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B. Specific Jurisdiction is Not Barred by the Fiduciary Shield Doctrine
In the second part of issue two, Lombardo argues the trial court erred when it concluded
it had specific jurisdiction over him because he is protected by the fiduciary shield doctrine.
Lombardo contends that the tort claims asserted by Bhattacharyya are really contract claims to
which the fiduciary shield doctrine applies. Bhattacharyya responds that his “allegations against
Lombardo sound solely in tort and constitute independent torts committed by Lombardo in
Texas.”
As we previously noted, Texas Rule of Appellate Procedure 33.1 establishes the
prerequisites for preserving an appellate complaint. TEX. R. APP. P. 33.1. To preserve a point
for appellate review, a party must make a timely, specific objection or motion to the trial court
that states the grounds for the ruling sought with sufficient specificity, unless the grounds are
apparent from the context, obtain a ruling on the complaint, and comply with the rules of
evidence or procedure. TEX. R. APP. P. 33.1.
The record shows that Lombardo makes the following argument relating to the fiduciary
shield doctrine in his special appearance:
“As a general rule, jurisdiction over an individual cannot be based upon
jurisdiction over a corporation.” Nichols v. Tseng Hsiang Lin, 282 S.W.3d 743,
750 (Tex. App.—Dallas 2009[, no pet.]) [(discussing general jurisdiction)].
Under Texas law, actions undertaken by a business agent as an agent cannot
create personal jurisdiction over the agent in his individual capacity and being an
investor, or agent of an investor, in a business that has contacts with the state does
not make the agent subject to the jurisdiction of the state. See Carone v. Retamco
Operating, Inc., 138 S.W.3d 1, 12 (Tex. App.—San Antonio 2004, pet. denied)
[(discussing general jurisdiction)]; Siskind v. Villa Found. for Educ., Inc., 642
S.W.2d 434, 438 (Tex. 1982) (noting that fiduciary shield precludes personal
jurisdiction over individual whose only contacts with Texas were solely as
corporate officer). To hold otherwise would violate fundamental concepts of fair
play and make every agent of an investor in a national business personally subject
to the jurisdiction of each state where the national business has contacts.
....
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The legal arguments and authorities explaining why the [trial] [c]ourt lacks
jurisdiction over Lombardo are fully explained in Lombardo’s [b]rief in [s]upport
of [h]is [v]erified[s]pecial [a]ppearance.
Lombardo’s brief in support of his special appearance argues only that the fiduciary shield
doctrine bars the exercise of general jurisdiction over Lombardo. Further, during the hearing on
Lombardo’s special appearance the following exchange occurred as to the fiduciary shield
doctrine:
Trial Court: Okay. So the Court’s analysis as it relates to special
appearance, first let’s talk about this fiduciary shield
doctrine—
Lombardo’s Counsel: Yes.
Trial Court: —which has been advanced, and I think a fair reading of
the case law suggests that that’s a theory that really relates
to general jurisdiction issues and this is really about
specific jurisdiction.
Lombardo’s Counsel: We agree at this point, yes.
Accordingly, we conclude Lombardo did not preserve for appellate review his issue that asserts
the trial court erred when it concluded it had specific jurisdiction over him because he is
protected by the fiduciary shield doctrine. TEX. R. APP. P. 33.1.
The second part of issue two was not preserved for appellate review.
IV. SUFFICIENCY OF THE EVIDENCE TO SUPPORT FINDINGS OF FACT
In issue four, Lombardo argues the evidence was legally and factually insufficient to
support the trial court’s findings of fact. 3 Lombardo challenges eight of the trial court’s findings
3
Lombardo also broadly contends the evidence is legally and factually insufficient to support all of the findings of fact. Specifically, Lombardo
states, “The Trial Court’s Order and Findings of Fact and Conclusion of Law combine its factual findings and analysis, without enumerating
each finding. Lombardo attempts to isolate the Trial Court’s findings of fact and challenge them individually, but also challenges all of the
findings generally.” An appellant’s brief “must contain a clear and concise argument for the contentions made, with appropriate citations to
the authorities and to the record.” TEX. R. APP. P. 38.1(i). If the appellant does not do so, he waives the issue on appeal. Bogart v. Star Bldg.
Sys., No. 01-10-00446-CV, 2011 WL 846566, at *2 n.3 (Tex. App.—Houston [1st Dist.] Mar. 10, 2011, pet. denied) (mem. op.). However,
the trial court made several findings of fact that Lombardo did not object to specifically in his brief nor does he discuss why those findings are
not supported by evidence. Accordingly, any points objecting to those unspecified findings of fact to which only a general objection was made
are waived and we will not address any such unspecified findings of fact. See id.
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of fact. 4 Bhattacharyya responds that the trial court’s findings of fact are supported by the
evidence. As previously noted, the trial court’s findings of fact and conclusions of law are
rendered in memorandum opinion and narrative format. Accordingly, the findings and
conclusions are not set out in separately numbered paragraphs.
A. Standard of Review
When determining a special appearance, the trial court must frequently resolve fact
questions before deciding the jurisdictional question. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Assurances Generales Banque Nationale v. Dhalla,
282 S.W.3d 688, 694–95 (Tex. App.—Dallas 2009, no pet.); Capital Tech. Info. Servs., Inc. v.
Arias & Arias Consultores, 270 S.W.3d 741, 748 (Tex. App.—Dallas 2008, pet. denied) (en
banc). The trial court’s findings of fact are binding upon the court of appeals, unless challenged
on appeal. MasterGuard L.P. v. Eco Technologies Int’l L.L.C., No. 05-12-01218-CV, 2013 WL
4482976, at *5 (Tex. App.—Dallas Aug. 22, 2013, no pet.); Hotel Partners v. KPMG Peat
Marwick, 847 S.W.2d 630, 632 (Tex. App.—Dallas 1993, writ denied). When a trial court’s
findings of fact are unchallenged on appeal, they occupy the same position and are entitled to the
same weight as the verdict of a jury. Davey v. Shaw, 225 S.W.3d 843, 849 (Tex. App.—Dallas
2007, no pet.) (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986)).
However, if the trial court issues findings of fact and conclusions of law in connection
with its ruling on a special appearance, the appellant may challenge the fact findings on legal and
factual sufficiency grounds. See BMC Software, 83 S.W.3d at 794. A legal sufficiency
challenge to the findings of fact fails if there is more than a scintilla of the evidence to support
the findings. See BMC Software, 83 S.W.3d at 795. In conducting a factual sufficiency review,
4
Lombardo argues the evidence is legally and factually insufficient to support eleven specific findings of fact. Three of those are actually
conclusions of law and one of the findings challenged is actually two separate findings. Accordingly, we address only the sufficiency of the
evidence to support the findings of fact that are specifically addressed by Lombardo. We will address the trial court’s conclusions of law in
the portion of this opinion addressing issue three.
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appellate courts may set aside the trial court’s finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong or unjust. See Hoffmann v.
Dandurand, 180 S.W.3d 340, 345 (Tex. App.—Dallas 2005, no pet.).
B. Application of the Law to the Facts
1. Finding of Fact: “Bhattacharyya and [] Lombardo had long hours of discussion at the
N[YLO] Hotel in Irving, at Adea’s offices in Dallas, and at restaurants in the Dallas area.”
The first of Lombardo’s challenges as to the legal and factual sufficiency of the evidence
to support the trial court’s specific finding is the finding that “Bhattacharyya and [] Lombardo
had long hours of discussion at the N[YLO] Hotel in Irving, at Adea’s offices in Dallas, and at
restaurants in the Dallas area.” Lombardo argues the “Trial Court took liberties with the Record”
and “Bhattacharyya vaguely stated that he ‘had discussions’ with Lombardo and remembers
picking Lombardo up from the airport [without any clarification as to which airport] and having
‘long hours of discussion’ on the Adea-Valtech transaction.” 5 (Brackets in orig.).
The record shows that the trial court’s finding is supported by the following statements in
Bhattacharyya’s verified response opposing Lombardo’s special appearance:
[L]ombardo first visited Dallas in connection with the Adea acquisition in the
Summer of 2009, along with [] Nores and two other associates. For the next 18
months, until the acquisition of Adea in December 2010, he was actively involved
in the acquisition process. He visited Dallas and had detailed discussions with me
on (1) the approach for merging the two companies, (2) details of the Asset
Purchase Agreement, (3) incentives for me and the Adea team, (4) the strategy of
the combined entities, and (5) my role in Valtech.
....
I had discussions with [] Lombardo at the N[YLO] hotel in Irving, at Adea’s
offices in Irving, and at restaurants in the Dallas area. I also remember picking
5
Lombardo also argues “the ‘long hours’ are not tied to any contact in Texas, and there are no dates corresponding to when any of these
‘discussions’ occurred.” This argument attacks the trial court’s legal conclusion that “Lombardo has failed to carry the burden to negate this
basis for the assertion of personal jurisdiction over [] Lombardo on [] Bhattacharya’s claims for fraud, fraudulent inducement, and negligent
misrepresentation related to the formation of the Employment Agreement,” which is supported by complained-of finding of fact. Further, we
note that Lombardo does not specifically challenge the trial court’s findings of fact that “Lombardo does not deny that any of these discussions
took place” and “Lombardo’s verified statement is silent as to whether or not he had any of the discussions or made any of the promises that
were not kept, as set out in [] Bhattacharyya’s verified statement.”
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him up from the airport, playing a CD of Argentinian music (since he is from
there), and then having long hours of discussion on the Adea-Valtech transaction.
Also, the declaration of DuPont states, “I am the former Chief Financial Officer of Valtech . . .
and served as the CFO of Adea . . . at the time it was acquired by Valtech,” “In my capacity as
Adea’s CFO, I personally participated in negotiations with Valtech executives over the terms of
the acquisition, which culminated in an Asset Purchase Agreement (“APA”) between Adea and
Valtech,” and “Lombardo personally attended at least one meeting in Dallas where the terms of
the APA were discussed.” Further, Lombardo does not specifically challenge the trial court’s
findings of fact that “Lombardo does not deny that any of these discussions took place” and
“Lombardo’s verified statement is silent as to whether or not he had any of the discussions or
made any of the promises that were not kept, as set out in [] Bhattacharyya’s verified statement.”
Accordingly, we conclude there is legally and factually sufficient evidence to support the trial
court’s finding of fact that “Bhattacharyya and [] Lombardo had long hours of discussion at the
N[YLO] Hotel in Irving, at Adea’s offices in Dallas, and at restaurants in the Dallas area.”
2. Finding of Fact: “These discussions include several promises made by [] Lombardo to
compensate [] Bhattacharyya for his commitment and sacrifices at Adea since []
Bhattacharyya had led Adea as CEO from 2006 to 2010, and promises that [] Lombardo
would ‘take care’ of [] Bhattacharyya.”
Second, Lombardo challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that “These discussions include several promises made by [] Lombardo
to compensate [] Bhattacharyya for his commitment and sacrifices at Adea since []
Bhattacharyya had led Adea as CEO from 2006 to 2010, and promises that [] Lombardo would
‘take care’ of [] Bhattacharyya.” Lombardo contends there is nothing in the record showing
these statements occurred in Texas. However, the record shows that the trial court’s finding is
supported by the following statements in Bhattacharyya’s verified response opposing
Lombardo’s special appearance:
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[Lombardo] visited Dallas and had detailed discussions with me on (1) the
approach for merging the two companies, (2) details of the Asset Purchase
Agreement, (3) incentives for me and the Adea team, (4) the strategy of the
combined entities, and (5) my role in Valtech. He made several promises to me,
including a promise to compensate me for my commitment and sacrifices at Adea
since I had led Adea as CEO from 2006 to 2010.
....
Throughout 2010, Mr. Lombardo made repeated promises on how he would “take
care” of me and my team, and acknowledged how I had provided strong
leadership to keep the customers, employees and key stakeholders together.
Also, Lombardo argues that Bhattacharyya admitted these alleged statements were not
made in Texas when he stated, “if [Lombardo] was not able to come to Dallas, he would send his
representative [] Nores as his representative.” However, Lombardo takes this statement out of
context. Bhattacharyya’s statement is part of the following paragraph and does not serve as an
admission that Lombardo’s statements were made outside of Texas as Lombardo suggests:
Throughout 2010, [] Lombardo made repeated promises on how he would “take
care” of me and my team, and acknowledged how I had provided strong
leadership to keep the customers, employees and key stakeholders together.
While [] Lombardo worked on taking over Valtech in March 2010, I patiently
waited for nine months for him and his team to close the Adea transaction. I had
complete faith in Mr. Lombardo—although he kept delaying the process—as he
was intimately involved in the negotiations. If he was not able to come to Dallas,
he would send [] Nores as his representative to negotiate the APA. He was also
involved in discussions with Adea’s creditors, namely Growth Capital Partners.
Further, Lombardo contends he denied these allegations and generally points us to his
verified special appearance. Lombardo’s verified statement states, “I did not travel to Texas to
participate in the negotiations of the asset purchase.” This argument appears to challenge the
trial court’s finding that “Lombardo does not specifically deny that any of these discussions took
place.” However, Lombardo does not specifically challenge the trial court’s findings of fact that
“Lombardo did state that he did not visit Dallas to participate in negotiations over the APA, a
statement that is contradicted by the sworn declarations of [] Bhattacharyya and [] DuPont,”
“These negotiations and discussions culminated in the formation of the APA, and []
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Bhattacharyya’s execution of an Employment Agreement with Valtech,” and “Lombardo’s
verified statement is silent as to whether or not he had any of the discussions or made any of the
promises that were not kept, as set out in [] Bhattacharyya’s verified statement.”
We conclude that there is legally and factually sufficient evidence to support the trial
court’s finding that “These discussions include several promises made by [] Lombardo to
compensate [] Bhattacharyya for his commitment and sacrifices at Adea since [] Bhattacharyya
had led Adea as CEO from 2006 to 2010, and promises that [] Lombardo would ‘take care’ of []
Bhattacharyya.”
3. Finding of Fact: “Nor does Lombardo deny making the April 30, 2012 phone call
discussed in [] Bhattacharyya’s declaration.”
Third, Lombardo challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding of fact that “Nor does Lombardo deny making the April 30, 2012 phone
call discussed in [] Bhattacharyya’s declaration.” Lombardo argues the evidence only
establishes that Lombardo called Bhattacharyya on April 30, 2012, not that the phone call was
connected to Texas. Bhattacharyya responds that the evidence shows Lombardo called
Bhattacharyya on April 30, 2012, and during that call, Lombardo made promises, those promises
were made in Dallas, Texas, and the promises were not kept. In his verified statement,
Bhattacharyya states:
Around April 30, 2012, [] Lombardo called me and wanted to have dinner alone
with my wife in Dallas to assure her that I would be given my performance bonus
and shares/options. He even promised me shares in another entity (Siegco) so that
I could have a bigger upside. He also mentioned another entity (sounded like
"Cosmo-little") where he would give me options. He explained that I would have
to put in some money in that case, and he would provide details later. These
promises were made in Dallas, Texas, and were not kept.
Lombardo’s verified statement confirms he was in Dallas, Texas on April 30, 2012, stating, “The
second occasion I travelled to Texas was on April 30, 2012. I flew from Miami, Florida, and
landed at DFW Airport on April 30, 2012, at 7:40 p.m.; I left Texas on May 1, 2012, on a flight
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from DFW Airport on May 1, 2012 at 4:00 p.m.” Accordingly, we conclude there is legally and
factually sufficient evidence to support the trial court’s finding that “Nor does Lombardo deny
making the April 30, 2012 phone call discussed in [] Bhattacharyya’s declaration.”
4. Finding of Fact: “Lombardo responded to [] Bhattacharyya’s notice by sending him
letters dated November 6, 2012 and November 12, 2012, both of which [] Bhattacharyya
received in Texas.”
Fourth, Lombardo challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that “Lombardo responded to [] Bhattacharyya’s notice by sending him
letters dated November 6, 2012 and November 12, 2012, both of which [] Bhattacharyya
received in Texas.” Lombardo argues that the record shows he finalized and approved the
November 6 and 12, 2012 letters from Paris and Brussels, then sent them to Attaway so they
could be delivered to Bhattacharyya’s counsel. The record shows that these letters were attached
to Lombardo’s verified special appearance as Exhibit Nos. 4 and 5. Both of these letters are
addressed to Bhattacharyya at an address in Coppell, Texas, and indicate that they were hand
delivered. Also, both letters were signed by Lombardo. These exhibits also contain e-mails to
Bhattacharyya’s legal counsel stating, “Enclosed is a copy of a letter from Chairman & CEO of
Valtech Group, [] Lombardo, which will be delivered to [Bhattacharyya] this afternoon by []
Attaway, the Company’s Director of Human Resources.” Further, Lombardo does not challenge
the trial court’s findings of fact that “In those letters, [] Lombardo promised to pay []
Bhattacharyya’s 2011 performance bonus, and urged [] Bhattacharyya to withdraw his notice of
intent to terminate the Employment Agreement” and “After receiving these written promises
from [] Lombardo, [] Bhattacharyya withdrew his notice on November 13, 2012.” Accordingly,
we conclude that there is legally and factually sufficient evidence to support the trial court’s
finding that “Lombardo responded to [] Bhattacharyya’s notice by sending him letters dated
November 6, 2012 and November 12, 2012, both of which [] Bhattacharyya received in Texas.”
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5. Finding of Fact: “Following [] Bhattacharyya’s withdrawal of notice of intent to
terminate the Employment Agreement, [] Lombardo again travelled to Dallas on
November 26, 2012 to discuss [] Bhattacharyya’s employment at Valtech.”
Fifth, Lombardo challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that “Following [] Bhattacharyya’s withdrawal of notice of intent to
terminate the Employment Agreement, [] Lombardo again travelled to Dallas on November 26,
2012 to discuss [] Bhattacharyya’s employment at Valtech.” Lombardo contends there is no
evidence that he discussed Bhattacharyya’s employment. Instead, he claims the record shows
that he travelled to Dallas to reassure Valtech Solutions’ employees and receive an update on
Attaway’s investigation. 6
The record shows that Lombardo’s verified statement includes the following statement
regarding his visit to Texas on November 26, 2012:
The third and final occasion that I travelled to Texas, through the present date,
occurred on November 26, 2012. On this occasion, I flew from Fort Lauderdale,
Florida and landed at DFW Airport on November 26, 2012, at 12:40 p.m.; I left
Texas on November 28, 2012, on a flight from DFW Airport at 10:05 a.m. to New
York. The purpose of this trip was also in connection with my duties and
responsibilities of CEO/Chairman of Valtech S.A. [] Nores had requested that I
visit Valtech Solutions’ office in Dallas because he thought my presence would
reassure its employees of Valtech S.A.’s commitment to Valtech Solutions. In
addition, Valtech Solutions’ Director of Human Resources, [] Attaway, had been
involved in the investigation of the statement reported by employees of Valtech
Solutions by [Bhattacharyya], that while in he was in the office prior to meeting
with [] Attaway[,] [] [Bhattacharyya] had told the employees that he was carrying
a gun. I wanted to visit personally with [] Attaway to receive an update on her
investigation. After conducting these meetings, I departed Texas from DFW
Airport on November 28, 2012, at 10:00 a.m. on a flight to New York. The total
time that I was in Texas on this trip was 45.5 hours.
Also, Lombardo’s verified statement includes the following description of the events leading to
the November 30, 2012, letter terminating Bhattacharyya’s employment:
6
Lombardo does not specifically challenge the trial court’s finding of fact that “Bhattacharyya withdrew his notice [of intent to terminate the
Employment Agreement] on November 13, 2012.”
–15–
As previously noted, as Chairman and CEO of Valtech S.A., after: receiving
reports about the statement by [Bhattacharyya] to Valtech Solutions’ employees
that, while in the office he was carrying a gun; reviewing the statements from the
two employees to whom [Bhattacharyya] had made this statement; being
informed by [] Attaway and [] Nores[] of their subsequent interview of
[Bhattacharyya] about his statement; and being informed by [] Attaway
concerning Valtech Solutions’ policy about guns in the workplace, I concluded
that [Bhattacharyya’s] employment should be terminated for cause.
Further, Lombardo’s verified statement confirms that he spoke with Attaway about
Bhattacharyya’s employment as follows:
I have not spoken about [Bhattacharyya’s] employment, termination, or his
statement to Valtech Solutions[’] employees about carrying a gun in the office
with any other person, company, customer, or third party. The only persons that I
have discussed such matters with are the attorneys who are representing me in this
case, [] Attaway, [] Nores, and [] Padiou.
However, we note that the record shows that Attaway was the Director of Human Resources for
Valtech Solutions.
We conclude that there is legally and factually sufficient evidence to support the trial
court’s finding that “Following [] Bhattacharyya’s withdrawal of notice of intent to terminate the
Employment Agreement, [] Lombardo again travelled to Dallas on November 26, 2012 to
discuss [] Bhattacharyya’s employment at Valtech.”
6. Finding of Fact: “During this visit, [] Lombardo ‘discussed’ alleged defamatory
statements made by two Valtech employees, and received an update on an internal
‘investigation’ of [] Bhattacharyya that began on the same day [] Bhattacharyya withdrew
his notice.”
Sixth, Lombardo challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that “During this visit, [] Lombardo ‘discussed’ alleged defamatory
statements made by two Valtech employees, and received an update on an internal
‘investigation’ of [] Bhattacharyya that began on the same day [] Bhattacharyya withdrew his
notice.” 7 Without more, Lombardo argues the portion of the finding that states the investigation
7
In his brief on appeal, Lombardo treats this finding of fact as two separate findings.
–16–
began on the same day Bhattacharyya withdrew his notice of termination “should be
disregarded.” As we previously noted, Lombardo does not specifically challenge the trial court’s
finding of fact that “Bhattacharyya withdrew his notice [of intent to terminate the Employment
Agreement] on November 13, 2012.” Attached to Lombardo’s verified special appearance as
Exhibit No. 7 are the signed statements of Shankar and Gvozdenovic, which described the
alleged statements by Bhattacharyya that he had brought a gun to work. These statements are
dated November 14, 2012 and do not state what day the alleged events occurred, they only
provide an approximate time of day. However, Lombardo’s verified statement includes the
following description of his Exhibit No. 7:
November 14, 2014. (Ex. 7 is a true and correct copy of handwritten statements
signed by two Valtech Solutions employees ([] Shankar and [] Gvozdenovic) who
reported that on November 13, 2012, when [Bhattachryya] appeared unannounced
in Valtech Solutions’ office to meet with [] Attaway, [Bhattacharyya] had made
the statement to them that he was carrying a gun and asked the employees to
watch his back.)
[A]ttaway and our attorney both e-mailed a copy of these two statements to me on
November 14, at my e-mail address in France where I reviewed them, and after
speaking by phone while I was in France with [] Attaway and [] Nores,
concluded, as CEO/Chairman of Valtech S.A., that until further investigation
could be conducted it would be inappropriate for Plaintiff to be on Valtech
Solutions’ property.
(Emphasis added).
Next, we examine the remainder of the trial court’s finding of fact that “During this visit,
[] Lombardo ‘discussed’ alleged defamatory statements made by two Valtech employees, and
received an update on an internal ‘investigation’ of [] Bhattacharyya.” Lombardo argues “The
[t]rial [c]ourt made significant leaps and assumptions to reach this finding, which is not
supported by the [r]ecord. Bhattacharyya failed to allege what if any conduct in Texas by
Lombardo formed the basis of his defamation and [intentional infliction of emotional distress]
claims. The [t]rial [c]ourt acknowledged this fact.” Bhattacharyya concedes that the record is
–17–
not clear whether the investigation began on November 13, 2012 or November 14, 2012, but
maintains that it is “irrelevant” to the ultimate jurisdictional analysis.
Lombardo’s verified statement includes the following statement regarding his visit to
Texas on November 26, 2012:
In addition, Valtech Solutions’ Director of Human Resources, [] Attaway, had
been involved in the investigation of the statement reported by employees of
Valtech Solutions by [Bhattacharyya], that while in he was in the office prior to
meeting with [] Attaway [] [Bhattacharyya] had told the employees that he was
carrying a gun. I wanted to visit personally with [] Attaway to receive an update
on her investigation.
In addition, Lombardo’s verified statement confirms that he spoke with Attaway, Nores, and
Padiou about Bhattacharyya’s employment, termination, and statement to Valtech Solutions
employees about carrying a gun in the office.
We conclude the evidence is legally and factually sufficient to support the trial court’s
finding that “During this visit, [] Lombardo ‘discussed’ alleged defamatory statements made by
two Valtech employees, and received an update on an internal ‘investigation’ of [] Bhattacharyya
that began on the same day [] Bhattacharyya withdrew his notice.”
7. Finding of Fact: “Lombardo voluntarily travelled to Texas to participate in discussions
about the investigation that forms the basis of [] Bhattachar[y]ya’s claims.”
Seventh, Lombardo challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that “Lombardo voluntarily travelled to Texas to participate in
discussions about the investigation that forms the basis of [] Bhattachar[y]ya’s claims.” 8 The
entirety of Lombardo’s argument is that:
[T]he [t]rial [c]ourt made significant leaps and assumptions to reach this finding,
which is not supported by the [r]ecord. Bhattacharyya failed to allege what if any
conduct in Texas by Lombardo formed the basis of his defamation and
8
In his brief on appeal, Lombardo combines his argument challenging this finding with his argument challenging the second half of the finding
discussed in the immediately preceding section.
–18–
[intentional infliction of emotional distress] claims. The [t]rial [c]ourt
acknowledged this fact. This finding should be disregarded.
As we previously noted, Lombardo stated in his verified statement that while he was in Dallas,
Texas, visiting the Valtech Solutions office at the request of Nores, he “visit[ed] personally with
[] Attaway to receive an update on her investigation.” Accordingly, we conclude the evidence is
legally and factually sufficient to support the trial court’s finding of fact that “Lombardo
voluntarily travelled to Texas to participate in discussions about the investigation that forms the
basis of [] Bhattachar[y]ya’s claims.”
8. Finding of Fact: “Bhattacharyya was terminated ‘for Cause’ on November 30, 2012 via
correspondence from [] Lombardo that [] Bhattacharyya received in Texas.”
Finally, Lombardo challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that “Bhattacharyya was terminated ‘for Cause’ on November 30, 2012
via correspondence from [] Lombardo that [] Bhattacharyya received in Texas.” Lombardo
argues that the trial court “took liberties with the [r]ecord and found facts that are not supported
by the [r]ecord.” Lombardo claims the November 30, 2012 letter was sent by e-mail from
Lombardo, who was in New York at the time, to Valtech’s counsel in Dallas, Texas, for delivery
to Bhattacharyya’s lawyer in Addision, Texas. As previously discussed, Lombardo’s verified
statement includes a description of the events leading to the November 30, 2012 letter
terminating Bhattacharyya’s employment and states, in part, “I concluded that [Bhattacharyya’s]
employment should be terminated for cause.” A copy of that letter was attached to his special
appearance as Exhibit No. 9. The letter is addressed to Bhattacharyya and his legal counsel, but
states it was sent by facsimile to his legal counsel, and it is signed by Lombardo. However, the
salutation of the letter only addresses Bhattacharyya. Also, the first paragraph of the letter states,
“I apologize for not being able to speak with you personally instead of having to provide this
information to you in this manner. However, the Company has been instructed by your attorneys
–19–
that all communications with you must go through your lawyers.” Accordingly, we conclude
there is legally and factually sufficient evidence to support the trial court’s finding that
“Bhattacharyya was terminated ‘for Cause’ on November 30, 2012 via correspondence from []
Lombardo that [] Bhattacharyya received in Texas.”
We conclude there is legally and factually sufficient evidence to support the trial court’s
challenged findings of fact. Issue four is decided against Lombardo.
V. TRIAL COURT’S CONCLUSIONS OF LAW
In issues three and five, Lombardo argues the trial court erred when it denied his special
appearance because there was no allegation or evidence of specific Texas contacts by Lombardo
for each claim and the exercise of jurisdiction over Lombardo does not comport with traditional
notions of fair play and substantial justice.
A. Standard of Review
Whether a trial court has personal jurisdiction over a nonresident defendant is a question
of law. Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013); Michiana
Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790–91 (Tex. 2005); BMC Software, 83
S.W.3d at 794; Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 805–06 (Tex. 2002);
Assurances Generales, 282 S.W.3d at 694; Capital Tech., 270 S.W.3d at 747. 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 legal conclusions de novo. Moncrief, 414 S.W.3d at 150; Moki
Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software, 83 S.W.3d
at 794; Suzlon Energy Ltd. v. Trinity Structural Towers, Inc., No. 05-13-00798-CV, 2014 WL
2735663, at *2 (Tex. App.—Dallas Jun. 17, 2014, no pet. h.); Assurances Generales, 282
S.W.3d at 694; Capital Tech., 270 S.W.3d at 748.
–20–
B. Burdens of Parties in Special Appearance
The plaintiff bears the initial burden of pleading sufficient allegations to bring a
nonresident defendant within the provisions of the Texas long-arm statute. Moncrief, 4141
S.W.3d at 149; Moki Mac, 221 S.W.3d at 574; BMC Software, 83 S.W.3d at 793; Am. Type, 83
S.W.3d at 807; Assurances Generales, 282 S.W.3d at 695; Capital Tech., 270 S.W.3d at 748.
This minimal pleading requirement is satisfied by an allegation that the nonresident defendant is
doing business in Texas. Assurances Generales, 282 S.W.3d at 695.
The nonresident defendant has the burden of negating all bases of jurisdiction alleged in
the plaintiff's petition. Moncrief, 414 S.W.3d at 149; Moki Mac, 221 S.W.3d at 574; BMC
Software, 83 S.W.3d at 793; Am. Type, 83 S.W.3d at 807; Assurances Generales, 282 S.W.3d at
695; Capital Tech., 270 S.W.3d at 748. If the plaintiff does not allege jurisdictional facts
showing the nonresident defendant has committed an act in Texas, the nonresident defendant can
meet its burden of negating jurisdiction by presenting evidence that it is a nonresident.
Assurances Generales, 282 S.W.3d at 695. If the nonresident defendant produces evidence
negating personal jurisdiction, the burden returns to the plaintiff to show, as a matter of law, that
the court has personal jurisdiction over the nonresident defendant. Assurances Generales, 282
S.W.3d at 695.
C. In Personam Jurisdiction
The nature of the evidence a party must adduce to meet its burden of proof is defined by
the Constitution, the Texas Legislature, statutes, and the case law. Texas courts may assert in
personam jurisdiction over a nonresident defendant 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. Moncrief, 414 S.W.3d at 149; Moki Mac, 221 S.W.3d at
574; Am. Type, 83 S.W.3d at 806; Assurances Generales, 282 S.W.3d at 695–96.
–21–
1. Texas Long–Arm Statute
The Texas long-arm statute governs Texas courts’ exercise of jurisdiction over
nonresident defendants. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 17.041–17.045 (West
2008); PHC–Minden, L.P. v. Kimberly–Clark Corp., 235 S.W.3d 163, 166 (Tex. 2007); BMC
Software, 83 S.W.3d at 795; Assurances Generales, 282 S.W.3d at 696. The long-arm statute
sets out a list of activities that constitute doing business in Texas. See TEX. CIV. PRAC. & REM.
CODE ANN. § 17.042; PHC–Minden, 235 S.W.3d at 166; BMC Software, 83 S.W.3d at 795;
Assurances Generales, 282 S.W.3d at 696. Specifically, the long-arm statute allows the exercise
of personal jurisdiction over a defendant who “commits a tort in whole or in part in this state.”
TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(2); Moncrief, 414 S.W.3d at 149. However, this
list is not exhaustive. PHC–Minden, 235 S.W.3d at 166; BMC Software, 83 S.W.3d at 795;
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226
(Tex. 1991); Assurances Generales, 282 S.W.3d at 696. The broad language of section 17.042
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; Moki Mac, 221 S.W.3d at 575;
BMC Software, 83 S.W.3d at 795; Am. Type, 83 S.W.3d at 807; Guardian Royal, 815 S.W.2d at
226; Assurances Generales, 282 S.W.3d at 696; Capital Tech., 270 S.W.3d at 748.
2. Due Process
In addition to the long-arm statute, the exercise of in personam jurisdiction over a
nonresident defendant must satisfy federal due process requirements. See Asahi Metal Indus.
Co., Ltd. v. Superior Court of Cal., Solano County, 480 U.S. 102, 108 (1987); Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945); PHC–Minden, 235 S.W.3d at 166; Moki Mac, 221
S.W.3d at 575; Assurances Generales, 282 S.W.3d at 696. Under the Due Process Clause of the
Fourteenth Amendment, personal jurisdiction over a nonresident defendant is constitutional
–22–
when: (a) the nonresident defendant has established minimum contacts with the forum state; and
(b) the exercise of jurisdiction comports with traditional notions of fair play and substantial
justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985); Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Int'l Shoe, 326 U.S. at 316; Moncrief, 414
S.W.3d at 150; PHC–Minden, 235 S.W.3d at 166; Moki Mac, 221 S.W.3d at 575; BMC
Software, 83 S.W.3d at 795; Am. Type, 83 S.W.3d at 806; Guardian Royal, 815 S.W.2d at 226;
Assurances Generales, 282 S.W.3d at 696; Capital Tech., 270 S.W.3d at 748.
a. Minimum Contacts
The purpose of the minimum contacts analysis is to protect a nonresident defendant from
being haled into court when its relationship with the forum state is too attenuated to support
jurisdiction. Am. Type, 83 S.W.3d at 806; Assurances Generales, 282 S.W.3d at 696. The focus
of the minimum contacts analysis is on the nonresident defendant’s activities and expectations.
Michiana, 168 S.W.3d at 790; Am. Type, 83 S.W.3d at 806; Assurances Generales, 282 S.W.3d
at 696. A nonresident defendant’s contacts with a forum state can give rise to: (1) general
jurisdiction; or (2) specific jurisdiction. See Moncrief, 414 S.W.3d at 150; PHC–Minden, 235
S.W.3d at 166; Moki Mac, 221 S.W.3d at 575–76; Am. Type, 83 S.W.3d at 806; Assurances
Generales, 282 S.W.3d at 696.
i. Specific Jurisdiction
Specific jurisdiction refers to personal jurisdiction over a nonresident defendant in a
lawsuit that arises out of or is related to the nonresident defendant's contacts with the forum state.
Moki Mac, 221 S.W.3d at 576; Capital Tech., 270 S.W.3d at 749; Assurances Generales, 282
S.W.3d at 697. When specific jurisdiction is asserted, the minimum contacts analysis focuses on
the relationship between the nonresident defendant, the forum state, and the litigation. Moki
Mac, 221 S.W.3d at 575–76; Guardian Royal, 815 S.W.2d at 226; Assurances Generales, 282
–23–
S.W.3d at 697; Capital Tech., 270 S.W.3d at 749. For a court to exercise specific jurisdiction
over a nonresident defendant, two requirements must be met: (1) the nonresident defendant’s
contacts with the forum state must be purposeful; and (2) the cause of action must arise from or
relate to those contacts. See Burger King, 471 U.S. at 474–75; World–Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980); Moki Mac, 221 S.W.3d at 579; BMC Software, 83 S.W.3d
at 796; Assurances Generales, 282 S.W.3d at 697; Capital Tech., 270 S.W.3d at 749–50.
When a plaintiff brings multiple claims that arise from different forum contacts of the
defendant, the plaintiff must establish specific jurisdiction for each claim. Moncrief, 414 S.W.3d
at 150. As a result the jurisdictional contacts must be analyzed on a claim-by-claim basis.
Moncrief, 414 S.W.3d at 150. However, courts need not assess contacts on a claim-by-claim
basis if the claims arise from the same forum contacts. Moncrief, 414 S.W.3d at 150.
(1) Purposeful Availment
Purposeful availment is the touchstone of the jurisdictional due process analysis. Asahi,
480 U.S. at 109–10; Burger King, 471 U.S. at 474; Int'l Shoe, 326 U.S. at 316; Michiana, 168
S.W.3d at 784; Guardian Royal, 815 S.W.2d at 226–27; Assurances Generales, 282 S.W.3d at
697; Capital Tech., 270 S.W.3d at 750. A nonresident defendant’s activities must be
purposefully directed toward the forum state so that the nonresident defendant could foresee
being haled into court there. See Burger King, 471 U.S. at 474; World–Wide Volkswagen, 444
U.S. at 297; Assurances Generales, 282 S.W.3d at 697; Capital Tech., 270 S.W.3d at 750. There
are three parts to a purposeful availment inquiry: (1) only the nonresident 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
nonresident defendant must seek some benefit, advantage, or profit by availing itself of the
jurisdiction. Burger King, 471 U.S. at 474–75; Moki Mac, 221 S.W.3d at 575; Michiana, 168
–24–
S.W.3d at 784–85; Guardian Royal, 815 S.W.2d at 226; Assurances Generales, 282 S.W.3d at
697; Capital Tech., 270 S.W.3d at 750.
(2) Alleged Liability Arises From or Relates To Contacts
Specific jurisdiction is established when the nonresident defendant’s alleged liability
arises from or is related to activity conducted within the forum. World–Wide Volkswagen, 444
U.S. at 293–94; Moki Mac, 221 S.W.3d at 576; BMC Software, 83 S.W.3d at 796; Guardian
Royal, 815 S.W.2d at 227; Assurances Generales, 282 S.W.3d at 697–98. The “arises from or
relates to” requirement lies at the heart of specific jurisdiction by defining the required nexus
between the nonresident defendant, the litigation, and the forum state. Moki Mac, 221 S.W.3d at
579; Assurances Generales, 282 S.W.3d at 698. In order for a nonresident defendant’s contacts
in a forum state 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; Assurances Generales, 282 S.W.3d at 698.
b. Traditional Notions of Fair Play and Substantial Justice
In addition to minimum contacts, the exercise of personal jurisdiction over a nonresident
defendant must comport with traditional notions of fair play and substantial justice. See Asahi,
480 U.S. at 113; Burger King, 471 U.S. at 476; BMC Software, 83 S.W.3d at 795; Assurances
Generales, 282 S.W.3d at 698; Capital Tech., 270 S.W.3d at 750. If the court concludes that
minimum contacts with the forum state exists, the court then proceeds to evaluate those contacts
in light of five factors to determine if the assertion of jurisdiction comports with traditional
notions of fair play and substantial justice. Crithfield v. Boothe, 343 S.W.3d 274, 286 (Tex.
App.—Dallas 2011, no pet.); Petrie v. Widby, 194 S.W.3d 168, 175 (Tex. App.—Dallas 2006, no
pet.). The five factors are: (1) the nonresident defendant’s burden; (2) the forum state’s interest
in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief;
–25–
(4) the interstate judicial system’s interest in obtaining an efficient resolution to disputes; and (5)
the state’s common interest in furthering fundamental, substantive social policies. Burger King,
471 U.S. at 477. When a nonresident defendant has purposefully established minimum contacts
with the forum state, it will be only a rare case when the exercise of jurisdiction does not
comport with traditional notions of fair play and substantial justice. Guardian, 815 S.W.2d at
231; Assurances Generales, 282 S.W.3d at 698.
D. Trial Court’s Conclusions of Law - Minimum Contacts
In issue three, Lombardo argues the trial court erred when it denied his special
appearance because there was no allegation by Bhattacharyya or evidence offered by
Bhattacharyya of specific Texas contacts by Lombardo for each claim. Lombardo’s issue has
two sub-arguments: (1) Bhattacharyya failed to meet his initial burden to plead sufficient facts to
confer jurisdiction over Lombardo; and (2) when reviewed on a claim-by-claim basis, the
evidence and the trial court’s findings of fact fail to establish sufficient Texas contacts to confer
specific personal jurisdiction over him.
First, we address Lombardo’s argument that Bhattacharyya’s “vague, non-specific
allegations as to ‘Defendants’ generally, are insufficient to meet his [initial] burden” to plead
sufficient allegations on a claim-by-claim basis. We construe this argument to challenge the trial
court’s conclusion that “Bhattacharyya met his initial burden to plead allegations sufficient to
confer jurisdiction by showing that [] Lombardo does business in the State.” Bhattacharyya’s
second amended petition states, in part, the following with regard to jurisdiction:
Th[e] [trial] [c]ourt has jurisdiction over [Valtech Solutions, Lombardo, and
Nores] based on Valtech’s ongoing business operations in the State of Texas, the
torts [] Lombardo and Nores committed in Texas and the events which give rise to
this litigations, as described in detail below.
Bhattacharyya’s second amended petition alleged claims for defamation and intentional infliction
of emotional distress against Lombardo. In his supplemental petition, Bhattacharyya added
–26–
claims for fraud, fraudulent inducement, and negligent misrepresentation against Lombardo. We
conclude that Bhattacharyya’s allegations that Lombardo committed torts in Texas satisfied his
initial burden of alleging a cause of action sufficient to confer jurisdiction under the Texas long-
arm statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(a); Moncrief, 414 S.W.3d at 149.
Next, we address Lombardo’s contention that the evidence and the trial court’s findings
of fact fail to establish sufficient Texas contacts to confer specific personal jurisdiction over him
when reviewed on a claim-by-claim basis. With regard to his fraud, fraudulent inducement, and
negligent misrepresentation claims, Bhattacharyya responds the evidence shows that Lombardo
willingly and voluntarily travelled to Texas to negotiate a corporate acquisition, discussed the
acquisition and Bhattacharyya’s role and compensation in the new company with Bhattacharyya
during his visits, and when Bhattacharyya was not paid as promised, Lombardo travelled to
Texas to assure Bhattacharyya the commitments would be fulfilled. With regard to his
intentional infliction of emotional distress and defamation claims, Bhattacharyya contends the
evidence shows Lombardo admitted discussing the defamatory statements about Bhattacharyya
with Valtech employees during a trip to Dallas, Texas, for the purpose of determining whether to
terminate Bhattacharyya.
As previously noted, neither the trial court’s findings of fact nor its conclusions of law
are rendered in separately numbered paragraphs. Rather, the findings and conclusions are in
memorandum opinion and narrative format. The trial court analyzed the fraud, fraudulent
inducement, and negligent misrepresentation claims together focusing on facts the trial court
viewed as common to these claims. Similarly, the trial court analyzed the defamation and
intentional infliction of emotional distress claims together focusing on the common facts to these
claims. We need not address each claim on a claim-by-claim basis if they arise from the same
–27–
forum contacts. See Moncrief, 414 S.W.3d at 150. Accordingly we will address Lombardo’s
arguments as to Bhattacharyya’s claims in the same manner as the trial court.
The trial court’s conclusions of law that Lombardo had sufficient Texas contacts to
confer specific personal jurisdiction over him on Bhattacharyya’s fraud, fraudulent inducement,
and negligent misrepresentation claims are supported by the following findings of fact:
• Lombardo voluntarily made several trips to Texas during the relevant time
period.
• From the [s]ummer of 2009 through December 2010, [] Lombardo personally
attended meetings in Dallas to negotiate acquisition of Adea Technologies,
Inc.
• During these visits, [] Lombardo and [] Bhattacharyya (Adea’s then CEO) had
detailed discussions on (1) the approach for merging the two companies, (2)
details of the Valtech-Adea Asset Purchase Agreement (“APA”), (3)
incentives for [] Bhattacharyya and the Adea team, (4) the strategy of the
combined entities, and (5) [] Bhattacharyya’s role in Valtech.
• Bhattacharyya and [] Lombardo had long hours of discussions at the N[YLO]
Hotel in Irving, at Adea’s offices in Dallas, and at restaurants m the Dallas
area.
• These discussions included several promises made by [] Lombardo to
compensate [] Bhattacharyya for his commitment and sacrifices at Adea since
[] Bhattacharyya had led Adea as CEO from 2006 to 2010, and promises that
[] Lombardo would “take care” of [] Bhattacharyya.
• These negotiations and discussions culminated in the formation of the APA,
and [] Bhattacharyya’s execution of an Employment Agreement with Valtech.
• Lombardo does not specifically deny that any of these discussions took place.
• Lombardo did state that he did not visit Dallas to participate in negotiations
over the APA, a statement that is contradicted by the sworn declarations of []
Bhattacharyya and [] DuPont.
• Lombardo’s verified statement is silent as to whether or not he had any of the
discussions or made any of the promises that were not kept, as set out in []
Bhattacharyya' s verified statement.
• Per his Employment Agreement and repeated promises made by [] Lombardo
during visits to Texas, [] Bhattacharyya was entitled to various performance
bonuses, incentive bonuses, stock options, and other benefits.
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• After [] Bhattacharyya entered into his Employment Agreement with Valtech,
[] Lombardo personally attended a “COMEX” meeting of Valtech executives
in Dallas-including [] Bhattacharyya-that took place in January 2012.
• During a break in this meeting, [] Bhattacharyya asked [] Lombardo to
approve [] Bhattacharyya’s performance bonus, which had not been paid.
• Later in the evening, [] Bhattacharyya and [] Lombardo again discussed this
issue in [] Bhattacharyya’s car.
• During that discussion, [] Lombardo assured [] Bhattacharyya that he was
Lombardo’s friend, and that [] Lombardo would live up to his commitments.
• [A]round April 30, 2012, [] Lombardo called [] Bhattacharyya and said he
wanted a meeting alone with [] Bhattacharyya’s wife so that he could
personally assure [her] that [] Bhattacharyya would be given his performance
bonuses, shares, and stock options.
• None of the promises described above were kept.
• In his verified statement, [] Lombardo admits that he attended the January
2012 “COMEX” meeting.
• [Lombardo’s] declaration is silent about the discussions with [] Bhattacharyya
that took place during and after that meeting, and he does not deny making
any of the promises [] Bhattacharyya details in his declaration.
• Nor does [] Lombardo deny making the April 30, 2012 phone call discussed in
[] Bhattacharyya’s declaration.
• When [] Bhattacharyya did not receive the payments that were owed to him
under his Employment Agreement and promised to him by [] Lombardo, []
Bhattacharyya submitted his notice of intent to terminate the Employment
Agreement for “Good Reason” on October 31, 2012.
• Per his agreement, a termination for “Good Reason” would have entitled []
Bhattacharyya to a $250,000 severance payment and additional compensation.
• Lombardo responded to [] Bhattacharyya’s notice by sending him letters dated
November 6, 2012 and November 12, 2012, both of which [] Bhattacharyya
received in Texas.
• In those letters, [] Lombardo promised to pay [] Bhattacharyya’s 2011
performance bonus, and urged [] Bhattacharyya to withdraw his notice of
intent to terminate the Employment Agreement.
• After receiving these written promises from [] Lombardo, [] Bhattacharyya
withdrew his notice on November 13, 2012.
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• [Lombardo] made all of his trips voluntarily, and voluntarily participated in
the discussions . . . detailed in [] Bhattacharyya’s declaration.
We are bound by the trial court’s unchallenged findings of fact and have already
concluded there was legally and factually sufficient evidence to support the challenged findings
of fact. See MasterGuard, 2013 WL 4482976, at *5; Hotel Partners, 847 S.W.2d at 632. These
findings set out in detail several alleged statements made to Bhattacharyya by Lombardo while
Lombardo was in Texas, supporting Bhattacharyya’s fraud, fraudulent inducement, and negligent
misrepresentation claims. Accordingly, we conclude that the trial court’s findings of fact
establish sufficient Texas contacts to confer specific personal jurisdiction over Lombardo as to
Bhattacharyya’s fraud, fraudulent inducement, and negligent misrepresentation claims.
With regard to Bhattacharyya’s claims for defamation and intentional infliction of
emotional distress, the trial court’s conclusions of law that Lombardo had sufficient Texas
contacts to confer specific personal jurisdiction over him on these claims are supported by the
following findings of fact:
• Following [] Bhattacharyya’s withdrawal of notice of intent to terminate the
Employment Agreement, [] Lombardo again travelled to Dallas on November
26, 2012 to discuss [] Bhattacharyya’s employment at Valtech.
• During this visit, [] Lombardo “discussed” alleged defamatory statements
made by two Valtech employees, and received an update on an internal
“investigation” of [] Bhattacharyya that began on the same day []
Bhattacharyya withdrew his notice.
• Bhattacharyya alleges that [Valtech Solutions, Lombardo, and Nores]
concocted this internal investigation in order to trump up reasons to terminate
him “for Cause” (and thereby avoid the $250,000 severance payment), and
that [Valtech Solutions, Lombardo, and Nores] republished defamatory
statements and committed intentional infliction of emotional distress during
the course of this “concocted” investigation.
• [T]he Court finds that [] Lombardo voluntarily travelled to Texas to
participate in discussions about the investigation that forms the basis of []
Bhattachar[y]ya’s claims.
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• The Court further finds that [] Bhattacharyya was terminated "for Cause" on
November 30, 2012 via correspondence from [] Lombardo that []
Bhattacharyya received in Texas.
Again, we are bound by the trial court’s unchallenged findings of fact and have already
concluded there was legally and factually sufficient evidence to support the challenged findings
of fact. See MasterGuard, 2013 WL 4482976, at *5; Hotel Partners, 847 S.W.2d at 632. These
findings set out in detail Lombardo’s participation in the investigation surrounding and the
republishing of the allegedly defamatory statements made by Shankar and Gvozdenovic with
other Valtech employees while Lombardo was in Texas, supporting Bhattacharyya’s defamation
and intentional infliction of emotional distress claims. Accordingly, we conclude that the trial
court’s findings of fact establish sufficient Texas contacts to confer specific personal jurisdiction
over Lombardo as to Bhattacharyya’s defamation and intentional infliction of emotional distress
claims.
Issue three is decided against Lombardo.
E. Trial Court’s Conclusions of Law - Fair Play and Substantial Justice
In issue five, Lombardo argues the trial court erred when it denied his special appearance
because the exercise of jurisdiction over him does not comport with traditional notions of fair
play and substantial justice. 9 Lombardo claims the burden placed on him is extraordinarily high
because he lives in Chaumont-Gistoux, Belgium and works at Valtech’s headquarters in Paris,
France. Further, Lombardo claims Texas has no overriding interest in exercising jurisdiction
over him to adjudicate this dispute because Bhattacharyya has potential recourse against Valtech
Solutions, Nores, and seven other defendants he added after filing his notice of appeal.
Bhattacharyya responds that the burden on Lombardo is minimal because he has already shown a
9
Lombardo also argues it is unfair to exercise jurisdiction over him as to the new and untimely claims for fraud and negligent misrepresentation.
However, we have already concluded that Lombardo failed to preserve his complaint that the trial court erred when it denied his written
objection to Bhattacharyya’s supplemental petition, which added the fraud, fraudulent inducement, and negligent misrepresentations claims.
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willingness to travel to Texas, which has a strong interest in adjudicating a dispute involving a
Texas resident harmed by allegedly fraudulent and defamatory statements. Further,
Bhattacharyya argues he has a strong interest in obtaining convenient and effective relief and
Lombardo’s presence in the lawsuit is critical for an efficient resolution of the disputes. Finally,
Bhattacharyya claims that “Texas’ common interest in furthering fundamental, substantive social
policies is benefitted by exercising jurisdiction over Lombardo by allowing Texas courts to
resolve claims brought against someone who willingly and deliberately came to Texas and made
promises and statements in Texas that allegedly harmed a Texas resident.”
The trial court’s conclusions of law that the exercise of jurisdiction over Lombardo does
not offend traditional notion of fair play and substantial justice are supported by the following
two findings of fact:
• Lombardo has previously demonstrated a willingness to travel to Texas.
• [Lombardo] visited the state on several occasions during negotiations over the
APA, continued to visit Texas throughout the term of [] Bhattacharyya’s
Employment Agreement, and made multiple trips to Texas in 2012.
As we previously noted, we are bound by the trial court’s unchallenged findings of fact. See
MasterGuard, 2013 WL 4482976, at *5; Hotel Partners, 847 S.W.2d at 632.
In his special appearance, Lombardo argued that “To hold otherwise [the fiduciary shield
doctrine does not bar jurisdiction] would violate fundamental concepts of fair play and make
every agent of an investor in a national business personally subject to the jurisdiction of each
state when the national business has contacts.” Lombardo’s brief in support of his special
appearance argued that the exercise of jurisdiction would offend traditional notions of fair play
and substantial justice, in relevant part, because “It would be unfair to subject Lombardo to
jurisdiction in Texas due solely to Valtech S.A.’s ownership of Valtech Solutions and
Lombardo’s actions that were performed in his role as an officer of Valtech S.A.,” “The burden
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of defending litigation in Texas, a place where Lombardo has never lived or worked, would be a
substantial burden on Lombardo and his family,” and “[Bhattacharyya] has not presented any
fact to show that Lombardo committed any act in Texas, let alone to support his allegation that
Lombardo committed any tort in Texas.”
Lombardo has already shown his willingness to travel to Texas when he travelled on
multiple occasions during the acquisition negotiations and three times in 2012. Moreover,
distance alone is not ordinarily sufficient to defeat jurisdiction as “modern transportation and
communication have made it much less burdensome for a party sued to defend himself in a State
where he engages in economic activity.” Guardian, 815 S.W.2d at 231 (citing McGee v. Int'l
Life Ins. Co., 355 U.S. 220, 223 (1957)). We cannot conclude further travel to defend this
lawsuit will be a burden to Lombardo. Accordingly, we conclude the trial court did not err
when it denied Lombardo’s special appearance because the exercise of jurisdiction over him
comports with traditional notions of fair play and substantial justice.
Issue five is decided against Lombardo.
VI. CONCLUSION
Lombardo did not preserve for appellate review his issue that the trial court erred when it
overruled his written objection to Bhattacharyya’s supplemental petition. Also, we need not
address Lombardo’s claim that the exercise of general jurisdiction is barred by the fiduciary
shield doctrine because the trial court explicitly concluded there was specific jurisdiction.
Lombardo failed to preserve for appellate review his contention that the fiduciary shield doctrine
barred the exercise of specific jurisdiction. In addition, the evidence is legally and factually
sufficient to support the trial court’s challenged findings of fact. Finally, the trial court did not
err when it concluded there were sufficient contacts with Texas and the exercise of personal
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jurisdiction over Lombardo comported with traditional notions of fair play and substantial
justice.
The trial court’s order denying Lombardo’s special appearance is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
131583F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SEBASTIAN LOMBARDO, Appellant On Appeal from the 116th Judicial District
Court, Dallas County, Texas
No. 05-13-01583-CV V. Trial Court Cause No. DC13-00133.
Opinion delivered by Justice Lang. Justices
SHOUVIK BHATTACHARYYA, Appellee Myers and Brown participating.
In accordance with this Court’s opinion of this date, the trial court’s order denying
appellant SEBASTIAN LOMBARDO’S special appearance is AFFIRMED.
It is ORDERED that appellee SHOUVIK BHATTACHARYYA recover his costs of this
appeal from appellant SEBASTIAN LOMBARDO.
Judgment entered this 30th day of July, 2014.
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