Golden Agri-Resources Ltd. v. Fulcrum Energy, LLC, Fulcrum Power Services, L.P., Jesson A. Bradshaw, Gerardo P. Manalac, Double G. Holdings, L.P. and Kimberly J. Casey

Opinion issued August 30, 2012.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00922-CV
———————————
GOLDEN AGRI-RESOURCES LTD., PT SINAR MAS AGRO
RESOURCES & TECHNOLOGY TBK, AND PETER ONG, Appellants
V.
FULCRUM ENERGY LLC, FULCRUM POWER SERVICES, L.P., JESSON
A. BRADSHAW, GERARDO P. MANALAC, DOUBLE G HOLDINGS, L.P.,
AND KIMBERLY J. CASEY, Appellees

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2010-39531

MEMORANDUM OPINION

This interlocutory appeal arises from the denial of special appearances filed

by appellants Golden Agri-Resources, Ltd., PT Sinar Mas Agro Resources &
Technology TBK, and Peter Ong. The issues on appeal relate primarily to whether

certain contacts with Texas can be attributed to the appellants for purposes of

determining personal jurisdiction over them. We conclude that the appellants did

not satisfy their evidentiary burden to factually disprove the jurisdictional

allegations against them. Legally and factually sufficient evidence was presented

in the trial court to support a conclusion that each of the appellants purposefully

availed themselves of the privilege of conducting business in Texas. Accordingly,

we affirm the denial of the special appearances.

Background

Golden Agri-Resources, Ltd. (“GAR”) is a Mauritian corporation with its

principal place of business in Mauritius. GAR is part of a conglomerate of entities

known as the Sinarmas Group. GAR, directly or through its subsidiaries, owns

palm plantations in Asia and produces various products derived from palm oil such

as cooking oil and packaging products. PT Sinar Mas Agro Resources and

Technology TBK (“SMART”) is an Indonesian corporation with its principal place

of business in Indonesia, and it is an indirect subsidiary of GAR. PT Nabati Energi

Mas (“NEM”), which is a subsidiary of SMART and a party to the litigation, did

not file a special appearance and is not a party to this appeal. Peter Ong is the

president and director of NEM, and he is also the managing director of the Sinar

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Mas Alternative Energy Division of the Sinarmas Group. Collectively, appellants

GAR, SMART, and Ong are referred to as the “Sinarmas parties” in this opinion.

Fulcrum Power Services, L.P. (“FPS”) is a Texas limited partnership with its

principal place of business in Houston, Texas. FPS provides commercial and

residential energy management services in Texas, and it buys and sells wholesale

electricity. FPS’s general partner is Fulcrum Energy, LLC (“Fulcrum Energy”), a

Delaware limited liability company. Fulcrum Energy is managed by an executive

committee consisting, in part, of the business’s founders who are all Texas

residents: Gerardo Manalac, Jesson Bradshaw, and Kimberly J. Casey. Bradshaw,

Casey, and Double G Holdings, L.P. (which is owned by Manalac) are limited

partners of FPS. The appellees—Fulcrum Energy, FPS, Bradshaw, Manalac,

Double G Holdings, and Casey—are referred to as “the Fulcrum parties” in this

opinion.

In early 2007, Ong met Manalac at an alternative energy convention in

Kuala Lumpur, Malaysia. The two men discussed various business opportunities,

including the possibility of a joint venture for the production and marketing of

palm-oil-based biofuels. During these early negotiations, FPS sent to Ong at NEM

a “Confidentiality and Non-Disclosure Agreement.” Ong signed the agreement in

a signature block which identified him as “Managing Director” of NEM. Soon

after that agreement was executed, a “Partnership Cooperation Term Sheet” was

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drafted. The “Term Sheet” reflects that FPS and NEM “in principal [sic] agree to

establish a partnership cooperation to construct, operate biodiesel and glycerin

refinery plant” and that they “desire to build a business that refines and markets

palm-based biodiesel globally through its refineries, logistics, and marketing

contracts and assets using a joint venture company established as the vehicle

entity.” The signature blocks include spaces for Manalac to sign as president of

Fulcrum Energy and for Ong to sign as “President Director” of NEM.

The initial negotiations took place by email and telephone. As a final deal

approached, Ong and his associates visited Fulcrum Energy’s Houston office to

negotiate and conduct due diligence. The negotiations resulted in the creation of

two new entities and two sets of written agreements: the investment agreements

and the biofuel joint venture.

Investment agreements. Blue Sky Golden FPS Ltd. (“Blue Sky”), a British

Virgin Islands company, was formed in April 2007 as an indirect subsidiary of

GAR. Blue Sky is not owned directly or indirectly by either NEM or SMART.

Ong became a director of Blue Sky shortly after the company’s formation.

Between May and October 2007, Blue Sky executed three share subscription

agreements with FPS to acquire several million limited partnership units in FPS, in

exchange for approximately $25 million. GAR wired the money for the purchases

from its bank account in New York to FPS’s bank account in Texas.

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 FPS’s limited partnership agreement and Fulcrum Energy’s company

agreement were amended to admit Blue Sky as a limited partner of FPS with the

right to designate a manager to Fulcrum Energy’s executive committee. These

amendments effectively gave veto power to Blue Sky’s designee on the executive

committee. Ong was nominated as Blue Sky’s designated manager, and he served

in that capacity through 2010, traveling to Houston five times to attend executive

committee meanings.

Biofuel joint venture. In April 2007, Blue Sky Golden Fulcrum Ltd.

(“Golden”), a British Virgin Islands company, was formed as another indirect

subsidiary of GAR. As with Blue Sky, Golden was not owned directly or

indirectly by NEM or SMART, and Ong was nominated as a director of Golden.

In May 2007, Golden executed a biofuels joint venture agreement with

Texas-based Fulcrum Biofuels, LLC, a subsidiary of FPS. Under that agreement,

Golden promised to supply Fulcrum Biofuels with palm-oil-based biofuel on

specified terms. However, according to the Fulcrum parties, Golden never carried

out its obligations under that agreement. They allege that soon after the biofuels

joint venture agreement was executed, the price of palm oil on the open

commodities market rose so much that it became more profitable for the Sinarmas

Group to sell it to third parties rather than to Fulcrum Biofuels on the agreed terms.

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 In 2008, a major customer of FPS, Tara Energy, LLC, became seriously

delinquent on debts owed to FPS. In February 2009, the Fulcrum parties proposed

to Ong, then Blue Sky’s designated manager on the executive committee, that the

Fulcrum group should acquire Tara. Ong refused to consent to the transaction.

Nevertheless, negotiations between the Fulcrum group and Tara continued through

the summer of 2009. According to the Fulcrum parties, Ong ultimately

conditioned his consent to the Tara transaction upon the other FPS limited partners

purchasing approximately $12.5 million worth of Blue Sky’s limited partnership

shares in FPS. Under the payment plan, the FPS limited partners agreed to pay

90% of any distributions received from FPS to Blue Sky, and they were given a

two-year schedule on which to make payments. The FPS limited partners signed a

“Letter Agreement” committing themselves to those terms, and Ong consented to

the Tara transaction, which closed in September 2009.

FPS experienced financial difficulties after the Tara transaction and needed

to restructure. According to the Fulcrum parties, the Sinarmas Group represented

itself as having expertise in restructuring issues because it had endured financial

difficulties in the past, and it offered to assist in FPS’s recovery. In February 2010,

Fulcrum Energy and Blue Sky executed a “Consultancy Agreement.” Pursuant to

that agreement, Gilbert Viernes, an assistant vice president of SMART, worked in

the Fulcrum group’s Houston offices for three months. The Fulcrum parties now

6
allege that the “Consultancy Agreement” was a subterfuge to allow Viernes to

gather confidential information in anticipation of eventual litigation.

In June 2010, Blue Sky filed a petition in Harris County district court against

Fulcrum Energy, Manalac, Bradshaw, Casey, and Double G Holdings. Blue Sky

alleged that FPS failed to properly investigate Tara’s financial condition and

grossly overpaid to acquire an insolvent company. Blue Sky contends that it was

coerced into consenting to the acquisition by the Fulcrum parties’ threats of legal

action. Blue Sky also alleged other instances of mismanagement, and it claimed

that the counterparties to the “Letter Agreement” had defaulted on their payment

obligations. The causes of action in the petition included breach of contract,

breach of fiduciary duty, and fraudulent inducement. The Fulcrum parties

responded with counterclaims against Blue Sky and third-party claims against

GAR and Ong. They alleged breach of the biofuels joint venture agreement,

breach of the “Letter Agreement” and fraudulent inducement with respect to that

agreement, breach of confidentiality and disclosure of trade secrets, breach of the

“Consultancy Agreement,” and breach of various common-law duties. In amended

pleadings, SMART and NEM were joined as a third-party defendants.

The Fulcrum parties alleged that each counterclaim or third-party defendant,

individually or through alter egos, had done business in Texas and committed a tort

there, in whole or in part. GAR, SMART, and Ong all timely filed special

7
appearances. Blue Sky did not contest the Harris County court’s personal

jurisdiction over it.

After GAR, SMART, and Ong had filed their special appearances, the

Fulcrum parties filed a “Second Amended Counterclaim and Third Party Petition.”

The Fulcrum parties alleged that from the beginning of these business

relationships, agents of the Sinarmas-affiliated entities presented themselves

interchangeably as representing the Sinarmas Group, GAR, SMART, and NEM.

Thus, according to the pleading, the Fulcrum parties on one side and GAR,

SMART, and NEM on the other “committed to do business with each other, and

confirmed by oral agreements and writings to each other (the ‘Original Agreement’

or ‘Umbrella Agreement’, or ‘Contract’) the principles on which they would act as

partners, pursuant to which they would go into business together . . . .” Each side

provided consideration to the other under this putative “Umbrella Agreement”: the

Fulcrum parties contributed ownership units in their business to the Sinarmas

Group, and the Sinarmas Group agreed to develop plants to produce biofuels that

would be sold exclusively to Fulcrum Biofuels to market in the United States. The

pleading alleged that the first share subscription agreement and biofuels joint

venture agreement, both executed in May 2007, simply “cemented their

relationship as partners at the parent level.” However, according to the pleading,

the Sinarmas Group did not perform its obligation to develop the biofuel plants

8
despite the fact that the Fulcrum parties “fully embraced the Sinarmas Group as a

full partner in Fulcrum and FPS.” The pleading states multiple causes of action

including breach of contract, breach of the duties of good faith and loyalty, fraud,

and fraudulent inducement.

GAR, SMART, and Ong jointly submitted briefs and exhibits supporting

their special appearances. GAR and SMART denied that there was ever any

agreement or partnership between them and the Fulcrum parties. They opposed the

imputation of the jurisdictional contacts of NEM, Blue Sky, and Golden on an

alter-ego theory because they did not exercise control over the internal, day-to-day

operations of those entities. They contended that most of the alleged contacts with

the Fulcrum parties were in fact made by agents of NEM, Blue Sky, or Golden.

GAR and SMART admitted that their agents occasionally communicated with the

Fulcrum parties, but they stressed that the purpose of these communications was to

satisfy their stock exchange reporting requirements, and thus these contacts were

not “substantially related” to the operative facts of the litigation. SMART also

admitted that some of its employees—including the assistant vice president,

Viernes, who was sent to Houston pursuant to the “Consultancy Agreement”

between Fulcrum Energy and Blue Sky—had contacts with the Fulcrum parties,

but SMART contended that these employees were seconded to NEM, Golden, or

Blue Sky during such times and therefore such contacts were attributable only to

9
those entities. Ong argued that all of his contacts with the Fulcrum parties were

undertaken on behalf of NEM, Blue Sky, or Golden, such that they were not

attributable to him individually. GAR, SMART, and Ong also argued that the

assertion of personal jurisdiction of the Texas courts over them would offend

traditional notions of fair play and substantial justice.

To support their special appearances, GAR, SMART and Ong submitted

several exhibits, including the affidavits of Ong, Viernes, GAR’s chief accounting

officer, and SMART’s chief accountant. However, on the Fulcrum parties’

objections, the trial court struck portions of the affidavits of GAR’s chief

accounting officer and SMART’s chief accountant. GAR, SMART, and Ong also

submitted copies of the various written agreements at issue to show that they were

not parties to them.

The Fulcrum parties submitted a joint brief and evidence opposing the

special appearances. This response in opposition attempted to demonstrate that

representatives of GAR and SMART negotiated and entered into an “Umbrella

Agreement” with the Fulcrum parties. The Fulcrum parties’ brief to the trial court

relied heavily on the affidavit of Manalac, a limited partner of FPS and member of

Fulcrum Energy’s executive committee. Manalac’s affidavit states that Ong and

others identified themselves to him as “direct representatives” of GAR and

SMART. Manalac averred that he negotiated the “Umbrella Agreement” with

10
these representatives by email and in person in Houston, and that he continued to

have communications with GAR’s and SMART’s representatives over the course

of their multi-year business relationship. He identified GAR’s CEO as someone

whom Ong repeatedly referenced as the ultimate decisionmaker for the Sinarmas

Group’s investment in the Fulcrum group. Several exhibits were attached to the

affidavit:

 A photograph taken of Manalac, Ong, GAR’s CEO, and others purportedly
showing the signing and commemoration of the “Umbrella Agreement” in
GAR’s Jakarta headquarters;

 Business cards for Ong and others showing the Sinarmas name and logo;

 Email messages between Manalac, Ong, and others with purported
references to GAR’s partnership with Fulcrum and the personal involvement
of GAR’s CEO in decisionmaking regarding the partnership;

 A press release with purported references to GAR’s joint venture agreement
with Fulcrum;

 Email messages between GAR and SMART employees and Manalac
concerning Fulcrum’s financial condition and, as stated in one email,
“GAR’s investment in Fulcrum”; and

 Records and email messages purporting to show that GAR, not Blue Sky,
sent wire transfers directly to FPS for purchases of limited partnership units.

The Fulcrum parties contended that there was no evidence that SMART

seconded employees to other entities. As to Ong, the Fulcrum parties argued that

he directly represented GAR and SMART and that his negotiations and activities

in Texas—including membership on Fulcrum Energy’s executive committee—are

integral to their causes of action and support personal jurisdiction over him.
11
 The trial court held a hearing on the special appearances. In the course of

that hearing, counsel for the Fulcrum parties stated:

This is not a case about the subsidiaries, and we’re trying to get at the
parents through the subsidiaries. We’re saying: This [is what] the
parents did. This is what Mr. Ong did. . . . We are not doing an alter
ego, although, ironically the evidence I submitted to you would show
alter ego.

Their counsel stated at a later point:

But did [GAR, SMART, and Ong] purposely avail themselves? Were
these accidental contacts? In specific jurisdiction, they spent a ton of
time in their briefing and even, again, today talking about general
jurisdiction. We’re not asking for general jurisdiction. We’re asking
for specific jurisdiction only. We don’t pretend we have a general
jurisdiction argument today.

Following that hearing, the trial court denied the special appearances in a written

order. GAR, SMART, and Ong filed a request for findings of fact and conclusions

of law, which the trial court also denied. They then filed this accelerated appeal

for review of the interlocutory order denying their special appearances. See TEX.

CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West 2008).

Analysis

I. Standard of review

Texas courts may assert personal jurisdiction over a nonresident defendant if

the Texas long-arm statute authorizes it and the exercise is consistent with federal

and state constitutional due process guarantees. Moki Mac River Expeditions v.

12
Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The long-arm statute authorizes

jurisdiction over a nonresident if he does business in this state, meaning that he

“contracts by mail or otherwise with a Texas resident and either party is to perform

the contract in whole or in part in this state,” or he “commits a tort in whole or in

part in this state.” TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (West 2008).

Because the long-arm statute’s broad doing-business language allows the statute to

reach as far as federal constitutional requirements of due process will allow, the

requirements of the long-arm statute are satisfied if an assertion of jurisdiction

comports with federal due process guarantees. Moki Mac, 221 S.W.3d at 574.

In order to assert personal jurisdiction over a nonresident defendant, there

must be “some act by which the defendant purposefully avails itself of the

privilege of conducting activities within the forum State, thus invoking the benefits

and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct.

1228, 1240 (1958). There are three aspects of this requirement. “First, it is only

the defendant’s contacts with the forum that count: purposeful availment ‘ensures

that a defendant will not be haled into a jurisdiction solely as a result of . . . the

unilateral activity of another party or a third person.’” Michiana Easy Livin’

Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005) (quoting Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 (1985)). Second, the

acts must have been purposeful as opposed to random, isolated, or fortuitous. Id.

13
(citing Burger King, 471 U.S. at 475, 105 S. Ct. at 2183, and Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473, 1478 (1984)). Third, the

nonresident defendant must have sought some benefit, advantage, or profit by

availing itself of the forum, because personal jurisdiction is premised on notions of

implied consent. Id.

A defendant’s contacts with the forum can give rise to either specific or

general jurisdiction. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d

801, 806 (Tex. 2002). For a court to exercise specific jurisdiction, the defendant

must have had purposeful contacts with the forum, and the cause of action must

arise from or relate to those contacts. Id. For general jurisdiction, the defendant

must have “continuous and systematic” contacts with the state, which is a more

demanding level of contact than what is required for specific jurisdiction. Id. In

either case, the defendant’s contacts must be such that he should “reasonably

anticipate” being haled into a court of the forum state. World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980).

In addition to having the necessary quality and quantity of contacts with the

state, the assertion of personal jurisdiction must comport with traditional notions of

fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316,

66 S. Ct. 154, 158 (1945); Guardian Royal Exch. Assur., Ltd. v. English China

Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991). To negate this requirement, it is

14
incumbent on the defendant to present “a compelling case that the presence of

some consideration would render jurisdiction unreasonable.” Guardian Royal, 815

S.W.2d at 231 (quoting Burger King, 471 U.S. at 477, 105 S. Ct. 2185). “Only in

rare cases, however, will the exercise of jurisdiction not comport with fair play and

substantial justice when the nonresident defendant has purposefully established

minimum contacts with the forum state.” Id.

Whether a court has personal jurisdiction over a defendant is a question of

law, but the trial court must frequently resolve questions of fact before deciding the

jurisdictional question. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,

794 (Tex. 2002). In Kelly v. General Interior Construction, Inc., 301 S.W.3d 653

(Tex. 2010), the Supreme Court of Texas described the shifting burdens of proof

that each party bears with regard to a special appearance:

. . . [T]he plaintiff bears the initial burden to plead sufficient
allegations to bring the nonresident defendant within the reach of
Texas’s long-arm statute. Once the plaintiff has pleaded sufficient
jurisdictional allegations, the defendant filing a special appearance
bears the burden to negate all bases of personal jurisdiction alleged by
the plaintiff. Because the plaintiff defines the scope and nature of the
lawsuit, the defendant’s corresponding burden to negate jurisdiction is
tied to the allegations in the plaintiff’s pleading.

....

The defendant can negate jurisdiction on either a factual or
legal basis. Factually, the defendant can present evidence that it has
no contacts with Texas, effectively disproving the plaintiff’s
allegations. The plaintiff can then respond with its own evidence that
affirms its allegations, and it risks dismissal of its lawsuit if it cannot

15
 present the trial court with evidence establishing personal jurisdiction.
Legally, the defendant can show that even if the plaintiff’s alleged
facts are true, the evidence is legally insufficient to establish
jurisdiction; the defendant’s contacts with Texas fall short of
purposeful availment; for specific jurisdiction, that the claims do not
arise from the contacts; or that traditional notions of fair play and
substantial justice are offended by the exercise of jurisdiction.

Kelly, 301 S.W.3d at 658–59 (footnotes and citations omitted).

We are mindful that only relevant jurisdictional facts, rather than the

ultimate merits of the cause of action, are at issue in a special appearance. Wright

v. Sage Eng’g, Inc., 137 S.W.3d 238, 251 n.10 (Tex. App.—Houston [1st Dist.]

2004, pet. denied). Accordingly, the proof necessary to support personal

jurisdiction over a nonresident defendant is that the purposeful act was committed

in this state. Id. When, as in this case, a trial court does not issue findings of fact

and conclusions of law with its special appearance ruling, all facts necessary to

support the ruling and supported by the evidence are implied. BMC Software, 83

S.W.3d at 795. We review these implied findings for legal and factual sufficiency.

Id. at 794–95.

II. Sufficiency of contacts to support personal jurisdiction

a. GAR

In the first issue, GAR challenges the sufficiency of the evidence to establish

personal jurisdiction over it. The Fulcrum parties allege that GAR representatives

conducted negotiations that led to the purported “Umbrella Agreement” and

16
partnership between GAR and Fulcrum. Their pleading asserts that Ong conducted

negotiations on behalf of not just NEM, but also other Sinarmas Group entities,

including GAR, and that he traveled to Houston to conduct the negotiations in

early 2007. Manalac’s affidavit avers that representatives of GAR, including Ong

and GAR’s CEO, negotiated the terms of the “Umbrella Agreement” and

partnership. Several business cards were attached to Manalac’s affidavit. On

Ong’s business card, the “Sinarmas Group” name and logo appears at the top, and

he is identified as “Managing Director”; no other entity is identified on the face of

the card. Other individuals’ business cards similarly show the name and logo of

Sinarmas or GAR, without indication of another entity. The Fulcrum parties also

submitted the affidavit of Fulcrum Energy’s chief financial officer and

accompanying exhibits to show that GAR made direct wire transfers from its New

York bank account to FPS’s Texas bank account.

GAR denies that it participated in the 2007 negotiations or sent employees to

Texas, and it further denies that it negotiated or entered into any agreement to form

a partnership or business venture with the Fulcrum parties. GAR contends that

Ong’s negotiations were conducted on behalf of NEM, as demonstrated by the fact

that he signed the Confidentiality Agreement and Term Sheet in his capacity as a

NEM officer. It points out that the only Sinarmas Group entities that executed

written agreements with the Fulcrum parties were NEM, Blue Sky, and Golden.

17
 GAR’s initial burden in filing its special appearance was to negate the

Fulcrum parties’ jurisdictional allegations that it, as opposed to another Sinarmas

Group entity, negotiated with the Fulcrum parties to allow Blue Sky to purchase

shares in FPS. It is undisputed that Blue Sky, GAR’s indirect subsidiary, was

formed well after initial negotiations had begun, only a couple of weeks before the

investment agreements were executed. The timing of Blue Sky’s formation

suggests that the early negotiations by Ong and others could not have been done

for that entity’s benefit, which had not yet been formed.

GAR’s position is that Ong and others conducted all of the early

negotiations on behalf of NEM. There is some evidence to support that position:

Ong’s affidavit avers that he negotiated on NEM’s behalf, and the “Confidentiality

and Nondisclosure Agreement” and the “Term Sheet” reflect that Ong signed in his

capacity as a NEM officer. However, Ong’s business card reflects an affiliation

with the “Sinarmas Group,” not NEM specifically, and Manalac’s affidavit avers

that Ong identified himself as representing the Sinarmas Group. It is possible that

Ong was the agent of both NEM and GAR, because one may act simultaneously as

an agent of two principals if the principals consent and have knowledge of the dual

agency. See, e.g., Grant Thornton LLP v. Prospect High Income Fund, 314

S.W.3d 913, 924 (Tex. 2010). Significantly, the two entities formed as a result of

Ong’s negotiations, Blue Sky and Golden, are not subsidiaries of NEM; they are

18
indirect subsidiaries of GAR. Also, the money for Blue Sky’s purchase of limited

partnership units in FPS was transferred from a GAR bank account. These facts

support an inference that Ong conducted the early negotiations with the Fulcrum

parties on behalf of GAR. We conclude that GAR did not conclusively negate, on

a factual basis, the jurisdictional allegation that GAR representatives negotiated

with the Fulcrum parties the terms of the investment agreements and created Blue

Sky as an indirect subsidiary to enter into those agreements with Texas-based

counterparties. See BMC, 83 S.W.3d at 794–95. Instead, the evidence presented

by the Fulcrum parties was legally and factually sufficient to support the trial

court’s implied finding, for purposes of resolving the jurisdictional dispute, that

Ong negotiated on behalf of GAR.

The question remains whether GAR’s alleged contacts with the Fulcrum

parties would, as a matter of law, support an assertion of personal jurisdiction over

GAR. Parties who “‘reach out beyond one state and create continuing

relationships and obligations with citizens of another state’ are subject to

regulation and sanctions in the other State for the consequences of their activities.”

Burger King, 471 U.S. at 473, 105 S. Ct. at 2182 (quoting Travelers Health Ass’n

v. Virginia, 339 U.S. 643, 647, 70 S. Ct. 927, 929 (1950)). In this case, it is

undisputed that GAR did not directly enter into any written agreement with any of

the Fulcrum parties. To be sure, due process “allows potential defendants to

19
structure their primary conduct with some minimum assurance as to where that

conduct will and will not render them liable to suit.” World-Wide Volkswagen, 444

U.S. at 297, 100 S. Ct. at 567; see also Bearry v. Beech Aircraft Corp., 818 F.2d

370, 377 (5th Cir. 1987) (observing that parties may “structure their transactions to

limit their amenability to suits in foreign states”). However, not all transactions

involving Texas residents can be structured to avoid any benefit from or availment

of Texas law. Spir Star AG v. Kimich, 310 S.W.3d 868, 875 (Tex. 2010).

The Fulcrum parties’ claims against GAR are based largely on the allegation

of an “Umbrella Agreement,” which GAR representatives are alleged to have

negotiated by telephone, by email, and in person in Houston. The Fulcrum parties

also alleged that GAR “unilaterally formed several new foreign entities . . . that it

would either directly (if only tacitly) own, or otherwise wholly control through

other controlled entities in the Sinarmas Group” for the purpose of producing and

marketing biodiesel fuel in the United States. Taken as true, these facts

demonstrate the three aspects of purposeful availment that warrant an assertion of

personal jurisdiction over GAR: (1) contacts with Texas that are attributable to

GAR, (2) that are purposeful, and (3) that sought some benefit, advantage, or

profit. Michiana, 168 S.W.3d at 785. The creation of a subsidiary for the specific

purpose of investing in a Texas limited partnership is the kind of “reach[ing] out

beyond one state” to “create continuing relationships and obligations” that support

20
personal jurisdiction. See Burger King, 471 U.S. at 473, 105 S. Ct. at 2182; cf.

Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 30–31 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (holding that personal jurisdiction could be

maintained over New York resident who formed entity “for the sole purpose of

becoming a limited partner” in a Texas limited partnership”).

We hold that GAR failed to conclusively negate, as a matter of law, the

allegation that it purposefully availed itself of the Texas market by establishing

Blue Sky, which had a continuing business relationship with Texas residents. See

BMC, 83 S.W.3d at 794–95. We further hold that the contacts alleged by the

Fulcrum parties are substantially connected to the litigation, and thus specific

personal jurisdiction may be exercised over GAR. See Moki Mac, 221 S.W.3d at

585. At this procedural juncture, we do not decide whether GAR may be held

liable for its alleged conduct on the theories advanced by the Fulcrum parties. See

Wright, 137 S.W.3d at 251 n.10. Rather, we hold only that there is sufficient

evidence to support the trial court’s implied preliminary conclusion that GAR had

contacts with Texas from which it could “reasonably anticipate” being haled into

court to litigate causes of action arising out of those contacts. See World-Wide

Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567.

21
 b. SMART

In the second issue, SMART challenges the sufficiency of the evidence to

establish personal jurisdiction over it. One of the Fulcrum parties’ specific

allegations is that SMART assistant vice president Gilbert Viernes, while working

in Fulcrum’s Houston offices under the alleged subterfuge of the consultancy

contract between Blue Sky and Fulcrum Energy, gathered Fulcrum’s confidential

information in order to subsequently disclose it through Blue Sky’s original

petition and undermine the business.

In its trial court briefing supporting its special appearance, SMART argued

that it had no contacts with the Fulcrum parties that were substantially connected to

the litigation. It contended that an “isolated number” of its employees, including

Viernes, were seconded to—that is, borrowed by—NEM, Golden, or Blue Sky,

and therefore these contacts were made for the benefit of these other entities. In

support of this theory, SMART relies on Deloitte & Touche Netherlands Antilles &

Aruba v. Ulrich, 172 S.W.3d 255 (Tex. App.—Beaumont 2005, pet. denied), in

which the court of appeals held that Texas-based workers seconded to a firm

supported general jurisdiction over that firm. See Deloitte, 172 S.W.3d at 268.

SMART did not argue in the trial court that the consultancy-related activities

lacked a substantial connection with the Fulcrum parties’ causes of action.

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 The only evidence presented by SMART to support its secondment theory

were the affidavits and accompanying exhibits of Viernes and Tenti Kidjo,

SMART’s chief accountant. In response to the Fulcrum parties’ objections, the

trial court struck the portions of Kidjo’s affidavit discussing the purported

secondments. There was no objection to Viernes’s affidavit, and the trial court did

not strike any portion of it.

A threshold question is whether the trial court erred in striking the portion of

Kidjo’s affidavit that avers that certain SMART employees were seconded to other

entities. The struck portion of the affidavit concering Viernes’s secondment stated

as follows:

An isolated number of SMART employees were seconded to other
entities. The following employees were seconded from SMART to
other entities:

a) Gilbert Viernes (“Viernes”) was seconded to Blue Sky in or about
October 2008 to present.

....

SMART did not direct the work for or have control over the seconded
employees listed above during the terms of their secondments. The
employees performed work on behalf of Blue Sky, Golden, and/or
NEM. Any communications between the seconded employees and the
Fulcrum Parties was on behalf of the entities that controlled those
employees: Blue Sky, Golden and/or NEM. See, e.g., Exhibit 3B,
which is attached hereto and incorporated herein by reference.

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“Exhibit 3B” consisted of emails between various SMART employees and various

Fulcrum-related parties, particularly Manalac, and an accounting worksheet titled

“SUMMARY OF SHARING COST – PROJECT BIODIESEL DUMAI.” None of

the attached exhibits expressly state who employed the purportedly seconded

employees. However, many of the email messages reflect that the purportedly

seconded employees, including Viernes, sent and received messages by way of

email addresses ending in “@smart-tbk.com.”

The Fulcrum parties objected to the above-quoted portion of Kidjo’s

affidavit on the grounds that “the statements contained therein are legal

conclusions” that “totally fail[] to provide the factual information that could assist

the Court in determining the truth of this testimony.” The Fulcrum parties’

objection also noted that “Kidjo fails to provide a delineation of the existence of a

contract of secondment; which company directed the work and paid the salary of

the seconded employees; description of the job duties of the seconded employees;

or any written memorandum that memorializes the secondment.”

We review the trial court’s ruling striking an affidavit or portion thereof for

an abuse of discretion. In re BP Prods. N. Am., Inc., 263 S.W.3d 106, 117 (Tex.

App.—Houston [1st Dist.] 2006, orig. proceeding); CA Partners v. Spears, 274

S.W.3d 51, 63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). The Texas

Rules of Civil Procedure permit the trial court to determine a special appearance on

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the basis of affidavits. See TEX. R. CIV. P. 120a(3). However, such affidavits

“shall be made on personal knowledge” and “shall set forth specific facts as would

be admissible in evidence.” Id. This means that the affidavit must be direct,

unmistakable, and unequivocal as to the sworn facts, allowing perjury to be

assigned on it. Wright, 137 S.W.3d at 250 n.8. Affidavit testimony that amounts

to a legal conclusion lacks probative force. See id. (disregarding specially

appearing affiant’s testimony that he did not commit a tort in Texas because the

statement was a legal conclusion).

There are several factors that are relevant in determining whether an

employment relationship exists, including whether a supervisor exercises control

over a worker. See Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 584–85 (Tex.

2005) (listing factors relevant to determining whether worker is employee or

independent contractor, including “right to control the progress of the work”); Lee

Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (stating that

“determining whether someone exercised actual control is generally a question of

fact”). An affidavit that merely asserts the existence of an employment

relationship without providing specific supporting facts is not competent evidence

of the alleged employment relationship. See TEX. R. Civ. P. 120a(3); AMS Constr.

Co. v. Warm Springs Rehab. Found., Inc., 94 S.W.3d 152, 157–58 (Tex. App.—

Corpus Christi 2002, no pet.) (holding that because affiant failed to provide

25
underlying facts supporting statements that certain persons were employees, the

statements were not competent summary judgment evidence). Like the question of

whether an employment relationship exists, whether an employee is seconded to a

borrowing employer is a question of a law that depends upon factual

determinations of whether the borrowing employer has the right to direct and

control the borrowed employee with respect to the details of the particular work.

See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2003) (observing that

whether employee is borrowed employee of another in fact hinges on right of

control). Thus, an affidavit that states that an employee is seconded to a borrowing

employer, without providing specific supporting facts, is conclusory and lacks

probative force. See TEX. R. Civ. P. 120a(3); Wright, 137 S.W.3d at 250 n.8.

Kidjo’s affidavit states that certain SMART employees were seconded to

other entities who “controlled” those employees. However, the statements

concerning secondment are legal conclusions lacking probative force since the

affidavit provides no underlying facts concerning the nature of the control

purportedly exerted by the other entities. See Wright, 137 S.W.3d at 250 n.8; AMS,

94 S.W.3d at 157–58. Moreover, the contents of the referenced “Exhibit 3B”

attached to Kidjo’s affidavit do not indicate specific facts concerning the other

entities’ control over the purportedly seconded employees. Accordingly, we hold

that the trial court did not err by striking those portions of Kidjo’s affidavit

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concerning the purported secondment of certain SMART employees. See In re BP

Prods., 263 S.W.3d at 117.

SMART also relies upon Viernes’s affidavit to show that he was seconded to

Blue Sky when made his contacts with the Fulcrum parties in Texas. Viernes

averred that he was seconded by SMART to Blue Sky, and he repeatedly stated

that all of his activities relating to the Fulcrum parties were undertaken “on behalf

of” and “for the benefit of” Blue Sky rather than SMART. However, as with

Kidjo’s affidavit, facts demonstrating Blue Sky’s control over the details of his

work were not provided. It appears that no portion of Viernes’s affidavit was

objected to or struck by the trial court. Nevertheless, conclusory affidavit

testimony is substantively defective despite the lack of an objection in the trial

court. See Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). We conclude that, as with Kidjo’s affidavit,

Viernes’s affidavit statements concerning his secondment are conclusory because

they are not supported by specific facts, and therefore they were not competent

evidence. See TEX. R. CIV. P. 120a(3).

Having failed to present competent evidence that Viernes was seconded to

other entities, we hold that SMART did not meet its special appearance burden to

negate specific personal jurisdiction on the grounds that it lacked contacts with

27
Texas that are connected to the operative facts of the litigation. See Kelly, 301

S.W.3d at 658–59.

c. Ong

In the third issue, Ong challenges the sufficiency of the evidence to establish

personal jurisdiction over him. Ong’s defense to personal jurisdiction is that all of

his contacts with the Fulcrum parties were made in his capacity as an agent of

other entities, and thus his contacts are not attributable to him individually.

The mere fact that a person was acting in the capacity of a corporate

representative does not insulate that person from personal jurisdiction arising from

such actions. Gen. Elec. Co. v. Brown & Ross Int’l Distribs., Inc., 804 S.W.2d

527, 532 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (citing Calder v.

Jones, 465 U.S. 783, 790, 104 S. Ct. 1482, 1487 (1984)). However, under the

fiduciary shield doctrine, a corporate officer or employee is protected from being

subjected to the general jurisdiction of a forum when all of that individual’s

contacts with the forum state were made on behalf of his employer. See, e.g.,

Wright, 137 S.W.3d at 250. Because the fiduciary shield doctrine is limited to the

exercise of general jurisdiction, it does not protect a corporate officer or employee

from an allegation of specific personal jurisdiction when the opposing party has

alleged intentional torts or fraudulent acts for which he may be held individually

28
liable. Id.; TexVa, Inc. v. Boone, 300 S.W.3d 879, 889 (Tex. App.—Dallas 2009,

pet. denied).

In Wright v. Sage Engineering, Inc., 137 S.W.3d 238 (Tex. App.—Houston

[1st Dist.] 2004, pet. denied), a Texas corporation with its principal place of

business in Houston designed, manufactured, and sold equipment used in offshore

oilfield production. Wright, 137 S.W.3d at 244. One of the Texas corporation’s

shareholders was a foreign entity whose sole director was a Swiss resident. Id.

After the foreign-entity shareholder was sold to a third party, the Texas company

and its other shareholders filed suit against the individual director of the foreign

entity, alleging that he had stolen designs for certain oilfield equipment. Id. The

causes of actions included misappropriation of trade secrets, breach of fiduciary

duty, unjust enrichment, breach of contract, conversion, conspiracy, fraud, and

fraudulent inducement. Id.

The individual defendant filed a special appearance, arguing that because all

the alleged acts were undertaken in his capacity as a corporate representative of the

foreign entity, he lacked minimum contacts with Texas. Id. at 249–50. This court

observed that because the causes of action were based upon the individual’s

alleged misrepresentations for which he could be held individually liable, the

fiduciary shield doctrine was not available as a defense to the Texas courts’

exercise of specific personal jurisdiction over him. Id. at 250. Accordingly, the

29
individual defendant was held to have not satisfied his burden of negating specific

personal jurisdiction. Id.

Regarding the applicability of the fiduciary shield doctrine, Wright’s factual

and procedural setting is analogous to this case. Like the plaintiffs in Wright, the

Fulcrum parties have alleged various tort claims against Ong, a manager of

Fulcrum Energy’s executive committee, including that he fraudulently induced the

execution of the “Letter Agreement,” breached his duty of confidentiality and

divulged trade secrets, breached his fiduciary duty as a manager of Fulcrum

Energy’s executive committee, conspired to assist GAR and SMART to breach

their fiduciary duties, and fraudulently induced the Fulcrum parties to enter into the

“Umbrella Agreement.” Moreover, like the nonresident defendant in Wright,

Ong’s sole basis for negating personal jurisdiction based upon his contacts with

Texas is that he made those contacts solely in a representative capacity. As

previously discussed, this is not a meritorious defense to the Fulcrum parties’

assertion of jurisdiction. Id. Therefore, following Wright, we hold that Ong has

not satisfied his burden of negating specific personal jurisdiction based upon his

contacts with Texas. Id.; see also Kelly, 301 S.W.3d at 658–59.

III. Fair play and substantial justice

GAR, SMART, and Ong additionally argue that the exercise of personal

jurisdiction over them would offend traditional notions of fair play and substantial

30
justice. GAR and SMART contended in the trial court that, as foreign companies,

they would bear substantial costs by having to defend themselves in Texas. They

argued that because they were not parties to any of the agreements at issue, and

accordingly they could not anticipate having to litigate claims in the state. They

also asserted that Mauritius and Indonesia, their countries of domicile, have an

interest in protecting their residents from the authority of foreign courts. Ong

made almost identical arguments, and he stressed that the burdens on him are

greater given that he is sued in his individual capacity.

In evaluating whether the exercise of personal jurisdiction comports with

traditional notions of fair play and substantial justice, we consider: (1) the burden

on the defendant; (2) the interests of the forum state in adjudicating the dispute;

(3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the

interstate judicial system’s interest in obtaining the most efficient resolution of

controversies; and (5) the shared interest of the several states in furthering

fundamental substantive social policies. Guardian Royal, 815 S.W.2d at 231. The

argument that personal jurisdiction should not be exercised for these reasons

despite contacts with Texas must be “compelling.” Id.

We observe that GAR, SMART, and Ong have not actually presented

evidence that litigating in Texas would impose a burden on them, despite the fact

that they must produce evidence of such a burden to defeat personal jurisdiction on

31
this basis. Id.; see also Kelly, 301 S.W.3d at 658–59. The fact that they are not

located in Texas is insufficient in itself to show that their burden is excessive.

Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 877 (Tex. App.—Houston [14th

Dist.] 2004, no pet.). Moreover, Texas has a strong interest in adjudicating the

causes of action brought by the Fulcrum parties. See Wright, 137 S.W.3d at 254

(“Texas has a strong interest both in providing a forum for its residents and in

holding parties who committed tortious acts against its residents accountable.”);

Silbaugh v. Ramirez, 126 S.W.3d 88, 96 (Tex. App.—Houston [1st Dist.] 2002, no

pet.) (“Texas has an interest in ensuring that its citizens are protected from breach

of contract and tortious acts committed by nonresidents conducting business in

Texas.”). Also, it is in the interests of international judicial economy that all the

claims among these parties be resolved in the same suit. See Ashdon, Inc. v. Gary

Brown & Assocs., Inc., 260 S.W.3d 101, 118 (Tex. App.—Houston [1st Dist.]

2008, no pet.) (concluding that the interstate judicial system would benefit from

declining jurisdiction when the same parties were already involved in litigation in

another state). On balance, the factors relevant to the fair play and substantial

justice inquiry favor exercising personal jurisdiction over GAR, SMART, and Ong.

We overrule the first, second, and third issues.

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IV. Affidavits

GAR, SMART, and Ong argue in their fourth issue that the trial court erred

by striking portions of the affidavits of GAR’s chief accounting officer and

SMART’s chief accountant. Our review of the denial of the appellants’ special

appearances does not depend upon any of this affidavit testimony except to the

extent previously discussed in this opinion. Our appellate jurisdiction over this

interlocutory appeal must be strictly construed as a narrow exception to the general

rule that only final judgments and orders are appealable. Bally Total Fitness Corp.

v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001).

To adjudicate the special appearances of GAR, SMART, and Ong, it is not

necessary for us to review the trial court’s rulings striking other portions of the

contested affidavits. Given the strict construction of our appellate jurisdiction over

an interlocutory order and that we need only address issues necessary to the

disposition of the appeal, we overrule the fourth issue.

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 Conclusion

We affirm the order of the trial court.

Michael Massengale
Justice

Panel consists of Justices Higley, Bland, and Massengale.

34