ACCEPTED
13-15-00327-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
8/31/2015 8:04:46 AM
CECILE FOY GSANGER
CLERK
No. 13-15-00327-CV
In the Thirteenth Court of Appeals FILED IN
Corpus Christi, Texas 13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
8/31/2015 8:04:46 AM
BTB REFINING, LLC DORIAN E. RAMIREZ
Clerk
Appellant,
v.
MOHAMMAD ANWAR FARID AL-SALEH,
Appellee.
On Appeal from No. 2014-DCV-5860-G, 319th Judicial District Court,
Nueces County, Texas, Hon. David V. Stith
BRIEF OF APPELLANT
Mark T. Mitchell Deirdre B. Ruckman
State Bar No. 14217700 Texas Bar No. 21196500
Gardere Wynne Sewell LLP Stacy R. Obenhaus
600 Congress Avenue, Suite 3000 Texas Bar No. 15161570
Austin, Texas 78701 Debbie E. Green
Tel: 512.542.7072 Texas Bar No. 24059852
Fax: 512.542.7272 Gardere Wynne Sewell LLP
mmitchell@gardere.com 3000 Thanksgiving Tower
Dallas, Texas 75201
Tel: 214.999.3000
Fax: 214.999.4667
druckman@gardere.com
sobenhaus@gardere.com
dgreen@gardere.com
COUNSEL FOR APPELLANT
BTB REFINING, LLC
ORAL ARGUMENT REQUESTED
Identity of Parties and Counsel
Defendant-Appellant: Counsel:
BTB Refining, LLC Mark T. Mitchell
Gardere Wynne Sewell LLP
600 Congress Avenue, Suite 3000
Austin, Texas 78701
Deirdre B. Ruckman
Stacy R. Obenhaus
Debbie E. Green
Gardere Wynne Sewell LLP
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Plaintiff-Appellee: Counsel:
Mohammad Anwar Farid Daniel D. Pipitone
Al-Saleh Kenneth W. Bullock II
Sameer S. Karim
Munch Hardt Kopf & Harr PC
Pennzoil Place
700 Milam, Suite 2700
Houston, Texas 77002
Edward H. Davis Jr.
Astigarraga Davis Mullins & Grossman PA
1001 Brickell Bay Drive, 9th Floor
Miami, Florida 33131
J.A. "Tony" Canales
2601 Morgan Avenue
Corpus Christi, Texas 78405
TABLE OF CONTENTS
Statement of the Case 1
Issue Presented 2
Statement of Facts 3
I. BTB's FORMATION AND OPERATIONS 3
II. AL-SALEH'S FLORIDA JUDGMENT AND TEXAS LAWSUIT 5
Summary of the Argument 7
I. BURDEN OF PROOF AND STANDARD OF REVIEW 9
II. PLAINTIFF WAS NOT ENTITLED TO A PRE-JUDGMENT ASSET-
FREEZING INJUNCTION 10
A. Al-Saleh Has Made No Claim for Equitable Relief 15
B. Al-Saleh Has No Lien Upon, or Equitable Interest
In, BTB's Assets 19
III. THE DISTRICT COURT'S PRE-JUDGMENT INJUNCTION IS AN
IMPROPER PRE-JUDGMENT ATTACHMENT 22
A. The District Court's Temporary Injunction
Improperly Granted Al-Saleh A Pre-Judgment
Remedy To Which He Was Not Entitled 22
B. BTB Does Not Have An Adequate Remedy At Law
To Obtain Relief From the District Court's Improper
Pre-Judgment Attachment Of Its Money 28
IV. AS CONCERNING BTB, AL-SALEH HAS ALREADY OBTAINED
HIS ADEQUATE REMEDY AT LAW 30
Prayer 31
Certificate of Compliance 313
11
Certificate of Service 313
Appendix A 314
Appendix B 315
Appendix C 316
Appendix D 317
Appendix E 318
Appendix F 319
111
INDEX OF AUTHORITIES
Page(s)
CASES
Alliance Royalties, LLC v. Boothe,
313 S.W.3d 493, 497 (Tex. App. — Dallas 2010, no pet.) 22
Animale Grp. Inc. v. Sunny's Perfume, Inc.,
256 F. App'x. 707 (5th Cir. 2007) 17
In re Argyll Equities, LLC,
227 S.W.3d 268 (Tex. App. —San Antonio 2007, no pet.) 24, 28
Behringer Harvard Royal Island, LLC v. Skokos,
No. 05-09-00332-CV, 2009 WL 4756579 (Tex. App. — Dallas Dec. 14,
2009, no pet.) 12
In re Boyd,
No. ADV 12-05107, 2012 WL 5199141 (Bankr. W.D. Tex. Oct. 22,
2012) 17
Buerger v. Wells,
222 S.W. 151 (Tex. 1920) 26
Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002) 9
Campbell v. Adventist Health Sys./Sunbelt, Inc.,
946 S.W.2d 617 (Tex. App. — Fort Worth 1997, no writ) 24
City of Lubbock v. Coyote Lake Ranch, LLC,
440 S.W.3d 267 (Tex. App. — Amarillo 2014, pet. filed) 9
Credit Agricole Indosuez v. Rossiyskiy Kredit Bank,
729 N.E.2d 683 (N.Y. 2000) 16
De Beers Consol. Mines, Ltd. v. United States,
325 U.S. 212 (1945) 11, 13
iv
Deckert v. Independence Shares Corp.,
311 U.S. 282 (1940) 15
In re Derivium Capital, LLC,
396 B.R. 184 (Bankr. D. S.C. 2008) 17
Dittmann v. D.B. Zwirn & Co.,
No. CIV.A. H-09-402, 2009 WL 411562 (S.D. Tex. Feb. 13, 2009) 21
In re Enron Corp. Secs. Litig.,
No. CIV.A. G-02-0084, 2002 WL 1001058 (S.D. Tex. May 16, 2002) 14
Enzo Invs., LP v. White,
S.W.3d ----, 2015 WL 3524461 (Tex. App. —Houston [14th Dist.]
June 4, 2014, pet. filed) 19, 30
F.D.I.C. v. Gold Park Dev.,
No. CIV.A. 6:00-MC-24, 2008 WL 2325625 (E.D. Tex. June 3, 2008) 25
Forester v. El Paso Elec. Co.,
329 S.W.3d 832 (Tex. App. — El Paso 2010, mandamus denied) 18
Frederick Leyland & Co. v. Webster Bros. & Co.,
283 S.W. 332 (Tex. Civ. App.—Dallas 1926, writ dism'd w.o.j.) 11
Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc.,
527 U.S. 308 (1999) 7, 10, 11, 12, 14, 15, 16, 17, 19, 20
Gulf Oil Co. U.S. v. First Nat'l Bank of Hereford,
503 S.W.2d 300 (Tex. Civ. App. — Amarillo 1973, no writ) 21
Hahn v. Love,
321 S.W.3d 517 (Tex. App. —Houston [1st Dist.] 2009, pet. denied).. 18, 19
Hanson v. Guardian Trust Co.,
150 S.W.2d 465 (Tex. App. —Galveston 1941, pet. dism'd) 26
Harper v. Powell,
821 S.W.2d 456 (Tex. App. —Corpus Christi 1992, no writ) 12, 23
JSC Foreign Econ. Ass'n Technostroyexport v. Inn Dev. & Trade Servs.,
Inc.,
295 F. Supp. 2d 366 (S.D.N.Y. 2003) 16, 17
KCM Fin. LLC v. Bradshaw,
457 S.W.3d 70 (Tex. 2015) 18, 19
Lane v. Baker,
601 S.W.2d 143 (Tex. Civ. App. —Austin 1980, no writ) 12
Marketshare Telecom, L.L.C. v. Ericsson, Inc.,
198 S.W.3d 908 (Tex. App. — Dallas 2006, no pet.) 9
Netsphere, Inc. v. Baron,
703 F.3d 296 (5th Cir. 2012) 21, 22
Newby v. Enron Corp.,
188 F. Supp. 2d 684 (S.D. Tex. 2002) 17
Nowak v. Los Patios Investors, Ltd.,
898 S.W.2d 9 (Tex. App. —San Antonio 1995, no writ) 12, 13, 14
In re Radiant Darkstar Prods., LLC,
No. 05-13-00586-CV, 2013 WL 3718065 (Tex. App. — Dallas July 12,
2013, mandamus denied) 25
U.S. ex rel. Rahman v. Oncology Assocs.,
198 F.3d 489 (4th Cir. 1999) 17, 20, 21
Reach Grp., L.L.C. v. Angelina Grp.,
173 S.W.3d 834 (Tex. App. —Houston [14th Dist.] 2005, no pet.) 14
Reyes v. Burrus,
411 S.W.3d 921 (Tex. App. —El Paso 2013, pet. denied) 12,14
In re Rood,
448 B.R. 149 (D. Md. 2011) 17
S.R.S. World Wheels, Inc. v. Enlow,
946 S.W.2d 574 (Tex. App. —Fort Worth 1997, no writ) 23, 24, 28
vi
In re Tex. Am. Express, Inc.,
190 S.W.3d 720 (Tex. App. — Dallas 2005, no pet.) 25, 26, 27, 28
Tom James of Dallas, Inc. v. Cobb,
109 S.W.3d 877 (Tex. App. — Dallas 2003, no pet.) 9
UBS Secs. LLC v. Highland Capital Mgmt., L.P.,
42 Misc.3d 580 (N.Y. Sup. Ct. 2013) 16
Victory Drilling, LLC v. Kaler Energy Corp.,
No. 04-07-00094-CV, 2007 WL 1828015 (Tex. App. — San Antonio
June 27, 2007, no pet.) 12,14
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) 9
Wheeler v. Blacklands Prod. Credit Ass'n,
627 S.W.2d 846 (Tex. App.-Fort Worth 1982, no writ) 19
Zahra Spiritual Trust v. United States,
910 F.2d 240 (5th Cir. 1990) 17
STATUTES
TEx. CIV. PRAC. & REM. CODE § 51.014(a)(4) 29
TEX. Civ. PRAC. & REM. CODE § 61.001 24
TEX. CIV. PRAC. & REM. CODE § 61.002 24
TEX. CIV. PRAC. & REM. CODE § 61.005 24
TEX. Civ. PRAC. & REM. CODE § 63.001 26
Texas Business Organizations Code § 101.112 30, 31
vii
Statement of the Case
Nature of the case: Lawsuit seeking to enforce a judgment
debt against BTB Refining, LLC — which
is not a party to the judgment—based on
the theories of alter ego and fraudulent
transfer (CR 38-167).
Appeal from a district court order
issuing a temporary injunction freezing
$21.8 million of BTB's funds — essentially
a prejudgment writ of attachment.
Course of proceedings: On June 4, 2015, the district court issued
a temporary restraining order enjoining
BTB from transferring $21.8 million to
any entity in which Harry Sargeant III or
defendant Mustafa Abu Naba'a has any
interest, or which they otherwise operate
or control, or to Abu Naba'a (CR 163).
On June 26 and 30, 2015, the court held
an evidentiary hearing on request for
temporary injunction.
Disposition below: On July 2, 2015, the district court signed
its order granting the temporary
injunction but expanding the asset freeze
to preclude BTB and any of its "officers,
agents, servants, employees, attorneys,
principals, members, managers, and
other persons in active concert or
participation with . . . from using or
transferring to any person or entity
$21,828,446.65 or transferring such
amount out of the jurisdiction of this
Court . . . until further Order of [the]
court" (CR 337-339).
1
Issue Presented
The fundamental question in this appeal is whether the district court
abused its discretion in entering an injunction freezing millions of dollars
of assets of BTB Refining, LLC until trial. That question raises this issue:
Plaintiff Mohammad Farid Al-Saleh has no judgment against BTB
and brought this lawsuit to attempt to hold BTB liable for Al-Saleh's money
judgment against defendant Harry Sargeant III under theories of alter ego
and fraudulent conveyance. The district court abused its discretion in
ruling that a temporary injunction was available to preserve BTB's cash as
security for a potential money judgment against BTB in Al-Saleh's favor.
2
Statement of Facts
I. BTB'S FORMATION AND OPERATIONS.
In 2001, Trigeant Ltd., a limited partnership indirectly owned by
Sargeant and his family, purchased and began operating an asphalt
production facility in Corpus Christi, Texas, that refines crude oil (CR 99-
100). In December 2006, Trigeant borrowed $22 million from American
Capital Financial Services, Inc. ("AmCap") in exchange for a lien on
substantially all of Trigeant's assets, including the refinery (the "Corpus
Christi Refinery") (CR 101). In the fall of 2007, Trigeant defaulted on the
loan and AmCap noticed the Corpus Christi Refinery for foreclosure (CR
102-03).
On December 10, 2007, BTB Refining LLC was formed, wholly owned
by Sargeant (CR 100). BTB negotiated to purchase AmCap's note and lien
for $21,828,446.65 (the entire sum due under the AmCap loan), and the
transaction was consummated on December 28, 2007 (CR 104-105).
After BTB's purchase of the AmCap note and lien, BTB cancelled the
foreclosure scheduled by AmCap, but when Trigeant failed to cure its
default, BTB foreclosed on the Corpus Christi Refinery (CR 104-06). BTB
was the only bidder at the foreclosure sale and placed a credit bid of
3
$22,565,193.55, equal to all amounts due and owing under the loan at the
time (CR 106). For the next six years, BTB operated the Corpus Christi
Refinery (RR 58 [06-30-15]).
In 2009, PDVSA Petroleo S.A. ("PDVSA"), a creditor of Trigeant,
brought an action in U.S. District Court under the Texas Uniform
Fraudulent Transfer Act ("TUFTA") attempting to set aside the foreclosure
and subordinate BTB's debt and lien to PDVSA's judgment lien (CR 99; RR
58 [06-30-15]). The federal court ultimately found that BTB's foreclosure on
the Corpus Christi Refinery was a fraudulent transfer by Trigeant (CR 118).
As a result, in January 2013, the federal court set aside the foreclosure sale,
reinstated (and refused to subordinate) BTB's valid note and lien on the
refinery, and returned ownership of the Corpus Christi Refinery to
Trigeant (RR 59 [06-30-15]).
Thereafter, Trigeant filed for bankruptcy in Florida and ultimately
sold the Corpus Christi Refinery to Gravity Midstream Corpus Christi,
LLC pursuant to a plan of reorganization confirmed by Judge Kimball of
the Bankruptcy Court for the Southern District of Florida (CR 131, 272).
Pursuant to that confirmed bankruptcy plan, on June 9, 2015, Trigeant paid
4
BTB's secured claim in full (CR 134). In the orders under review, the
district court improperly froze a portion of these proceeds.
II. AL-SALEH'S FLORIDA JUDGMENT AND TEXAS LAWSUIT.
In 2008, Al-Saleh sued Sargeant, Abu Naba'a, and IOTC USA in state
court in Florida for fraud, breach of fiduciary duty, and other torts (CR 8).
Al-Saleh alleged that in 2004 he had entered into a business venture with
Sargeant and Abu Naba'a to bid for and obtain U.S. government contracts
to transport fuel through Jordan to Iraq in aid of the American war effort;
he asserted that after winning those contracts with his assistance, Sargeant
and Abu Naba'a formed IOTC USA for the purpose of excluding him from
the profits of the business venture (CR 43-49). In 2011, Al-Saleh obtained
money judgments against these three defendants in that action (CR 8-26).
In 2014, he registered that Florida judgment in the Texas district court
below as a Texas court judgment (CR 5-26). He then obtained a charging
order in the district court, charging Sargeant's member interest in BTB with
the judgment debt (CR 27-33). Subsequently, he filed a petition in this
same case against not only the three defendants in the Florida lawsuit but
also against BTB and Sargeant Marine Ltd. as well (CR 38-167). That
petition sought to enforce the judgment against the original Florida
5
defendants by means of a turnover order and related procedures (CR 57-
60). However, it also asserted an entirely new and independent lawsuit
against Sargeant and BTB, seeking to hold BTB liable for the judgment
based on theories of alter ego and fraudulent transfer (CR 61-69). The
district court signed a temporary restraining order that enjoined BTB from
transferring $21.8 million to any third parties (CR 163-65). The court then
held a two-day hearing to determine whether to further extend that relief
by issuing a temporary injunction (CR 337). In a post-hearing brief, Al-
Saleh made clear he was not seeking to enforce his Florida judgment with
standard post-judgment remedies, but instead was asking the court to seize
funds to aid him in satisfying a future money judgment against BTB: "[A]t
this stage of the proceedings," he argued, "a satisfaction of the Florida
Judgment this Honorable Court earlier domesticated is not sought but,
rather, merely the preservation of the funds necessary for satisfaction" (CR
321). The district court obliged, issuing a temporary injunction that
essentially granted Al-Saleh a prejudgment writ of attachment against BTB
by enjoining BTB from transferring $21.8 million to any third parties
pending a final trial on the merits (CR 337-39).
6
Summary of the Argument
"[A] general creditor (one without a judgment) ha[s] no cognizable
interest, either at law or in equity, in the property of his debtor, and
therefore c[an] not interfere with the debtor's use of that property." Grupo
Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 319-320
(1999). But that is precisely what has occurred in this case.
This appeal arises from Plaintiff Al-Saleh's attempts to enforce an
ordinary money judgment that he obtained in a Florida state court against
defendants Sargeant, Abu Naba'a, and IOTC USA. Al-Saleh domesticated
his money judgment and sought and obtained a charging order - the
exclusive remedy by which a judgment creditor of a member may satisfy a
judgment out of the judgment debtor's membership interest in a Texas
limited liability company - against Sargeant's interest in BTB, a Texas
limited liability company. But unsatisfied with that remedy, Al-Saleh then
filed the underlying action to attempt to hold BTB directly liable for his
money judgment against Sargeant, the judgment debtor, by contending
that BTB is the alter ego of Sargeant.
Al-Saleh contended that he was entitled to extraordinary relief in the
form of a temporary injunction to prevent non-judgment debtor BTB from
7
"spending, dissipating, depleting, secreting or otherwise moving,
transferring or burdening" certain settlement proceeds that BTB was about
to receive. In granting Al-Saleh's application for temporary injunction and
freezing approximately $22 million of BTB's money, the district court
abused its discretion.
With only two exceptions, neither of which is applicable here, the law
unambiguously provides that a court lacks authority to enter a pre-
judgment "asset-freezing" injunction in an action for money judgment.
The only relevant facts are that (i) Al-Saleh does not have a judgment
against BTB, (ii) Al-Saleh seeks only monetary relief against BTB, and (iii)
Al-Saleh does not have a lien or equitable interest in the settlement
proceeds frozen by the district court. By granting such injunctive relief, the
district court in effect granted Al-Saleh a pre judgment writ of attachment
that he did not seek and to which he would not have been entitled.
Accordingly, the district court's temporary injunction was a clear
abuse of discretion and should be reversed and vacated.
8
Argument
I. BURDEN OF PROOF AND STANDARD OF REVIEW.
A temporary injunction is an extraordinary remedy that may only be
issued to preserve the status quo of the litigation's subject matter pending
a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002). To obtain a preliminary injunction, the applicant must plead and
adduce evidence that, under applicable rules of law, establish (1) a cause of
action against the defendant; (2) a probable right to the relief sought, and
(3) a probable, imminent, and irreparable injury in the interim. Id.
While this court reviews a district court's issuance of a temporary
injunction under an abuse of discretion standard, a district court abuses its
discretion when it misinterprets or misapplies the law to the established
facts. City of Lubbock v. Coyote Lake Ranch, LLC, 440 S.W.3d 267, 271 (Tex.
App. — Amarillo 2014, pet. filed) (citing Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992)). All determinations on questions of law made by the
district court in support of the order granting the temporary injunction are
reviewed de novo. Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d
908, 916 (Tex. App. —Dallas 2006, no pet.) (citing Tom James of Dallas, Inc. v.
Cobb, 109 S.W.3d 877, 883 (Tex. App. —Dallas 2003, no pet.)).
9
II. PLAINTIFF WAS NOT ENTITLED TO A PRE-JUDGMENT ASSET-FREEZING
INJUNCTION.
Deeply rooted in traditional principles of due process and a long line
of legal precedent dating back to the English Court of Chancery is the
irrefutable rule of law applicable to this appeal: that a plaintiff is not
entitled to a preliminary injunction to preserve assets as security for a
potential money judgment. Grupo, 527 U.S. at 320. Until the plaintiff has
obtained a judgment against the defendant, he has "no cognizable interest,
either at law or in equity, in the property of his debtor, and therefore [can]
not interfere with the debtor's use of that property." Grupo, 527 U.S. at 319-
320.1 As Justice Scalia wrote in Grupo, "there is absolutely nothing new
about debtors trying to avoid paying their debts, or seeking to favor some
creditors over others — or even about their seeking to achieve these ends
through 'sophisticated strategies." 527 U.S. at 322. And therefore, even if
the creditor can offer evidence that the defendant intends to frustrate any
judgment by making it uncollectible, a preliminary injunction freezing the
1 In Grupo, a group of investors in the defendant corporation sought a preliminary
injunction to protect their ability to recover breach of contract damages upon the
allegation that the corporation "is at risk of insolvency, if not insolvent already and was
dissipating its most significant asset." 527 U.S. at 312. The district court granted the
injunction and the court of appeals affirmed. The Supreme Court, however, reversed.
10
defendant's assets is not a proper remedy. 527 U.S. at 322. Were it
otherwise:
[e]very suitor who resorts to chancery for any sort of relief by
injunction may, on a mere statement of belief that the
defendant can easily make away with or transport his money or
goods, impose an injunction on him, indefinite in duration,
disabling him to use so much of his funds or property as the
court deems necessary for security or compliance with its
possible decree. And, if so, it is difficult to see why a plaintiff
in any action for a personal judgment in tort or contract may
not, also, apply to the chancellor for a so-called injunction
sequestrating his opponent's assets pending recovery and
satisfaction of a judgment in such a law action. No relief of this
character has been thought justified in the long history of
equity jurisprudence.
Grupo, 527 U.S. at 327 (quoting De Beers Consol. Mines, Ltd. v. United States,
325 U.S. 212, 222-23 (1945)).
Although the Supreme Court's holding in Grupo on the jurisdiction of
the federal district courts does not control a Texas district court's authority
to issue injunctions to preserve the status quo of the subject matter of the
litigation, Grupo's analysis is persuasive and consistent with Texas law. See
Frederick Leyland & Co. v. Webster Bros. & Co., 283 S.W. 332, 335 (Tex. Civ.
App. — Dallas 1926, writ dism'd w.o.j.) ("it is contrary to the policy of the
law to permit a creditor who has no judgment to go to a court in equity and
restrain a debtor from selling, removing, or disposing of his property at his
11
pleasure, pending a common law action"); see also Reyes v. Burrus, 411
S.W.3d 921, 924-25 (Tex. App. —El Paso 2013, pet. denied); Nowak v. Los
Patios Investors, Ltd., 898 S.W.2d 9, 10 (Tex. App. — San Antonio 1995, no
writ); Harper v. Powell, 821 S.W.2d 456, 457-58 (Tex. App. — Corpus Christi
1992, no writ); Lane v. Baker, 601 S.W.2d 143, 145 (Tex. Civ. App. — Austin
1980, no writ) (all involving the reversal of temporary injunctions freezing
cash assets that were not the subject matter of the pending suit in aid of a
general creditor's claim for money judgment).2
The court in Nowak explained, as Justice Scalia did in Grupo, that,
absent limited exceptions, a pre-judgment temporary injunction freezing
the defendant's assets at the behest of a general creditor is not a proper
exercise of the court's equitable power:
[i]t is difficult to see why a plaintiff in any action for a personal
judgment in tort or contract may not, also, apply to the
2 See also Behringer Harvard Royal Island, LLC v. Skokos, No. 05-09-00332-CV, 2009 WL
4756579, at *4 (Tex. App. — Dallas Dec. 14, 2009, no pet.) (holding that district court was
without authority - beyond purview of statutes governing pre-judgment writs of
attachment - to enter order requiring defendant to deposit $10 million of its funds in
court registry to secure payment of a possible future judgment); Victory Drilling, LLC v.
Kaler Energy Corp., No. 04-07-00094-CV, 2007 WL 1828015, at *3 (Tex. App. —San
Antonio June 27, 2007, no pet.) (holding that temporary injunction could not be used to
prohibit defendant from using its assets pending trial under general rule prohibiting the
use of an injunction to secure the legal remedy of damages by freezing assets unrelated
to the subject matter of the suit and rejecting applicability of any exceptions) (collecting
cases).
12
chancellor for a so-called injunction sequestrating his
opponent's assets pending recovery and satisfaction of a
judgment in such a law action. No relief of this character has
been thought justified in the long history of equity
jurisprudence.
898 S.W.2d at 11 (quoting De Beers Consol. Mines, Ltd. v. United States, 325
U.S. 212,222-23 (1945)).
Al-Saleh seeks a money judgment against BTB. In the Amended
Petition, he asks the district court to "enter judgment in favor of Plaintiff
and as against . . . BTB Refining, LLC . . . for the damages sought herein . .
in an amount in excess of the minimum jurisdictional limits of this Court"
(CR 70).3 Thus, because Al-Saleh does not have a judgment against BTB,
3 More specifically, in the titled "damages" section of Al-Saleh's Amended Petition, he
states:
As a direct and proximate result of Defendants' conduct as described
herein, Plaintiff as suffered damages as follows:
a) Actual damages within the jurisdictional limits of the Court
including, but not limited to, amounts due under the contract at
issue;
b) General damages;
c) Out-of-pocket damages;
d) Benefit-of-the-bargain damages;
e) Special damages;
f) Incidental and consequential damages;
g) Prejudgment interest as provided by law;
h) Post-judgment interest at the maximum rate provided by law;
i) Costs of Court;
j) Attorneys' fees.
13
the district court's injunction freezing approximately $22 million of BTB's
money must be dissolved. Moreover, in a temporary injunction hearing
"[T]he ultimate merits of the case are not before the trial court." Reyes, 411
S.W.3d at 924-25 (quoting Reach Grp., L.L.C. v. Angelina Grp., 173 S.W.3d
834, 837 (Tex. App. — Houston [14th Dist.] 2005, no pet.)). Al-Saleh does not
seek, and the trial court did not grant, an injunction preserving the status
quo of the subject matter of the underlying litigation, but rather subjected
BTB to a sequestration of its assets pending Al-Saleh's contingent recovery
on his underlying claim.
The Supreme Court in Grupo and Texas courts have recognized two
exceptions to the rule prohibiting pre-judgment asset-freezing injunctions,
but neither of them apply to this case.4
(CR 65). None of these forms of relief are equitable in nature. See In re Enron Corp. Secs.
Litig., No. CIV.A. G-02-0084, 2002 WL 1001058, at *3 (S.D. Tex. May 16, 2002) (holding
that prayer for relief seeking "a. All actual, consequential, and special damages; b.
Prejudgment interest as provided by law; c. Punitive damages as provided by statutory
and common law; d. Attorney's fees and legal expenses (including expert fees); e. Post
judgment interest; and d. [sic] Costs of court" did not assert any relief that was
equitable in nature).
4 See, e.g., Nowak, 898 S.W.2d at 10-11 (recognizing that pre-judgment asset-freezing
injunction may be available to preserve collateral securing a note that the plaintiff seeks
to collect or to preserve assets or their proceeds that would be subject to a pleaded
equitable remedy such as rescission, constructive trust, or restitution); Victory Drilling,
2007 WL 1828015, at *3 (recognizing exceptions to general rule prohibiting pre-
judgment asset-freezing injunction where party seeks injunction to preserve assets or
14
A. Al-Saleh Has Made No Claim for Equitable Relief.
The first exception applies to suits in which the temporary injunction
applicant seeks equitable relief in the underlying lawsuit, such as a claim
for rescission, constructive trust, or restitution. Al-Saleh seeks a money
judgment against BTB, either as an alleged recipient of fraudulent transfers
or as the alleged alter ego of Sargeant (CR 56-61). He does not assert any
independent claim against BTB for equitable relief.
In Grupo, the Supreme Court distinguished its earlier decision in
Deckert v. Independence Shares Corp., 311 U.S. 282, 290 (1940), where it held
that a preliminary injunction restraining the defendants in a securities
fraud suit from transferring any assets "was a reasonable measure to
preserve the status quo" pending final trial. The Court explained that a
suit seeking equitable relief is very different from a suit such as Al-Saleh's
to enforce a money judgment against a non-party to the judgment. Grupo,
527 U.S. at 325. "The preliminary relief available in a suit seeking equitable
that are subject to a pled equitable remedy such as rescission, constructive trust, or
restitution, where party seeks injunction to enjoin assets that form basis of underlying
suit, i.e., right to the asset is basis of suit and party seeking injunction has a security
interest in asset to be enjoined).
15
relief has nothing to do with the preliminary relief available in a creditor's
bill seeking equitable assistance in the collection of a legal debt." Id.
In a suit for equitable relief, a preliminary injunction may be
available, but not in a mere suit to enforce a money judgment, where any
equitable relief requested is merely "incidental to and purely for the
purposes of enforcement of the primary relief sought here, a money
judgment." UBS Secs. LLC v. Highland Capital Mgmt., L.P., 42 Misc.3d 580,
591 (N.Y. Sup. Ct. 2013) (holding that an alter ego claim on which
fraudulent conveyance claims are predicated is brought in order to recover
on legal claims for breach of contract and fraudulent inducement could not
support grant of preliminary injunction) (quoting Credit Agricole Indosuez v.
Rossiyskiy Kredit Bank, 729 N.E.2d 683, 687 (N.Y. 2000)); see also JSC Foreign
Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 295 F. Supp.
2d 366, 389 (S.D.N.Y. 2003) (holding in action to enforce a judgment against
a corporate judgment debtor and individual defendants alleged to be its
alter ego, claim to set aside fraudulent conveyance made by one of the
alleged alter egos did not make preliminary injunction proper as plaintiff's
action was primarily for a money judgment and "[t]he equitable relief that
the plaintiff seeks, including the setting aside of the alleged fraudulent
16
conveyances, is incidental to, and indeed contingent upon the success of,
the plaintiff's alter ego action."); compare, e.g., Animale Grp. Inc. v. Sunny's
Perfume, Inc., 256 F. App'x. 707, 708 (5th Cir. 2007) (holding that plaintiffs
could obtain preliminary injunction freezing defendants' assets where
plaintiffs sought equitable relief of accounting of lost profits); U.S. ex rel.
Rahman v. Oncology Assocs., 198 F.3d 489, 497-98 (4th Cir. 1999) (holding
that plaintiff could obtain preliminary injunction freezing defendants'
assets where plaintiff sought a constructive trust); Newby v. Enron Corp., 188
F. Supp. 2d 684, 702-03 (S.D. Tex. 2002) (holding that Grupo did not
preclude issuance of a preliminary injunction freezing defendants' assets
where plaintiff asserted equitable claims for restitution, constructive trust,
accounting and disgorgement of profits). Accordingly, Al-Saleh's alter ego
and fraudulent transfer allegations5 do not transform this action at law for
collection of a debt into one in equity.
5 Indeed, Al-Saleh's fraudulent transfer claim is not a stand-alone claim, but rather rises
and falls with his alter ego allegations. See JSC, 295 F. Supp. 2d at 389; In re Boyd, No.
ADV 12-05107, 2012 WL 5199141, at *6 (Bankr. W.D. Tex. Oct. 22, 2012) (finding that
fraudulent transfer claim depended on whether trustee could pierce the corporate veil
between the debtor and defendant); Zahra Spiritual Trust v. United States, 910 F.2d 240,
247 (5th Cir. 1990) (recognizing that plaintiff's fraudulent conveyance claim rested on
alter ego theory); In re Rood, 448 B.R. 149, 162-63 (D. Md. 2011) (recognizing that
fraudulent conveyance claim asserted depended on success in proving alter ego); In re
Derivium Capital, LLC, 396 B.R. 184, 189 (Bankr. D. S.C. 2008) (same).
17
Likewise, evidence offered at a preliminary injunction hearing in
support of an unpleaded (and unavailable) equitable claim does not change
the fundamental character of the lawsuit as an action at law into an
equitable one, as courts have no authority to imply claims not asserted in
the plaintiff's petition. See Forester v. El Paso Elec. Co., 329 S.W.3d 832, 836
(Tex. App. — El Paso 2010, mandamus denied) ("Liberal construction [in
favor of the pleader] does not mean that we imply claims that are not
alleged.").
Al-Saleh spent most of his allotted time during the two-day
preliminary injunction hearing offering evidence purporting to "trace" the
proceeds of the fuel contracts to BTB's purchase of the AmCap note and
lien (RR 37-104 [06-26-15], RR 228-263 [06-30-15]). Tracing to an identifiable
res is a requirement for a constructive trust in Texas. See Hahn v. Love, 321
S.W.3d 517, 533 (Tex. App. —Houston [1st Dist.] 2009, pet. denied). But Al-
Saleh has not pleaded a claim for the imposition of a constructive trust in
this case. Nor is this remedy available to Al-Saleh in this action. KCM Fin.
LLC v. Bradshaw, 457 S.W.3d 70, 87-88 (Tex. 2015) ("A constructive trust is
not merely a vehicle for collecting assets as a form of damages."). And, in
any event, Al-Saleh did not plead an independent claim against BTB for
18
which a constructive trust over BTB's assets is an appropriate remedy. Id.
(explaining that constructive trust is not a claim but a remedy requiring a
claim for breach of a special trust or fiduciary relationship or actual or
constructive fraud).6 Indeed, he concedes that he cannot maintain any such
claim against BTB in this action.?
B. Al-Saleh Has No Lien Upon, or Equitable Interest In, BTB's
Assets.
The second exception to the general rule against asset-freezing
injunctions is when the plaintiff has a lien upon, or asserts an equitable
interest in, the assets sought to be frozen. Grupo, 527 U.S. at 325-26. Al-
Saleh does not have a lien in the approximately $22 million belonging to
BTB that the district court froze. "A creditor acquires a lien upon the lands
6 A constructive trust can only be imposed on assets of the judgment debtor, wherever
those assets may presently be, including in the hands of third-parties. Hahn, 321 S.W.3d
at 533. As the Texas Supreme Court recently stated, "Definitive, designated property,
wrongfully withheld from another, is the very heart and soul of the constructive trust
theory." KCM Fin. LLC, 457 S.W.3d at 88 (quoting Wheeler v. Blacklands Prod. Credit
Assin, 627 S.W.2d 846, 851 (Tex. App.-Fort Worth 1982, no writ)). But a member of a
limited liability company does not have an interest in any specific property owned by
the company, and, therefore, a constructive trust would not even achieve Al-Saleh's
objective. Enzo Invs., LP v. White, S.W.3d ----, 2015 WL 3524461, at *10 (Tex. App. -
Houston [14th Dist.] June 4, 2014, pet. filed) (explaining that plaintiff could not obtain a
constructive trust over assets of debtor purportedly held by limited liability company as
a member in a limited liability company has no interest in any specific asset of the
company).
7 In the Florida Action, Al-Saleh's counsel represented that "we have claims here [in
Florida] that we don't have in Texas, and those claims can only be adjudicated here, the
constructive trust claim . . . ." (CR 184).
19
of his debtor by a judgment; and upon the personal goods of the debtor, by
the delivery of an execution to the sheriff. It is only by these liens that a
creditor has any vested or specific right in the property of his debtor." Id.
at 323 n.6. Al-Saleh has no judgment against BTB and has not obtained
either a pre judgment writ of attachment or garnishment against BTB.8
Neither does Al-Saleh have any equitable interest in the
approximately $22 million. "A debt claim leads only to a money judgment
and does not in its own right constitute an interest in specific property."
Rahman, 198 F.3d at 496. By contrast, a plaintiff asserts an equitable interest
in specific property when he asserts a claim to specific property, such as by
way of a claim supporting the imposition of a constructive trust. As the
court explained in Rahman:
when the plaintiff creditor asserts a cognizable claim to specific
assets, a court may in the interim invoke equity to preserve the
status quo pending judgment where . . . the preliminary relief
furthers the court's ability to grant the final relief requested.
The nexus between the assets sought to be frozen through an
interim order and the ultimate relief requested in the lawsuit is
essential to the authority of a . . . court in equity to enter a
preliminary injunction freezing assets.
8As discussed below, those pre-judgment remedies are likewise unavailable to Al-Saleh
under Texas law. See supra III.A.
20
198 F.3d at 496-97; see also Netsphere, Inc. v. Baron, 703 F.3d 296, 309 (5th Cir.
2012) ("[A] court may not reach a defendant's assets unrelated to the
underlying litigation and freeze them so that they may be preserved to
satisfy a potential money judgment.").
Here, there is no connection between the approximately $22 million
in settlement proceeds that the district court froze and the money damages
that Al-Saleh seeks. Money is fungible. Al-Saleh's Florida money
judgment is for an undifferentiated sum of money, and does not apply to,
or create an interest in, any specific fund or res. In this debt collection
action, absent a proper prejudgment writ of attachment (to which Al-Saleh
is not entitled and which he does not seek), the district court has no
authority to order that BTB pay any money judgment that Al-Saleh may
obtain out of specific funds.9 See Dittmann v. D.B. Zwirn & Co., No. CIV.A.
H-09-402, 2009 WL 411562, at *5 (S.D. Tex. Feb. 13, 2009) (denying request
for preliminary injunction where the plaintiff requested temporary
injunctive relief "in an effort to preserve [the defendant's] financial status
9 A prejudgment writ of attachment enables the plaintiff to seize the defendant's assets
and hold it so that if the plaintiff obtains a judgment, the seized property will be
forthcoming to satisfy the judgment. Gulf Oil Co. U.S. v. First Nat'l Bank of Hereford, 503
S.W.2d 300, 304-05 (Tex. Civ. App. — Amarillo 1973, no writ).
21
quo so that [the defendant] has the resources with which to pay [the
plaintiff] a damages award . . . should his case ultimately be successful.").io
III. THE DISTRICT COURT'S PRE-JUDGMENT INJUNCTION IS AN IMPROPER
PRE-JUDGMENT ATTACHMENT.
A. The District Court's Temporary Injunction Improperly
Granted Al-Saleh A Pre-Judgment Remedy To Which He Was
Not Entitled.
While the unavailability of a pre-judgment asset-freezing injunction
does not preclude the possibility of other pre judgment remedies (such as
the statutorily recognized "extraordinary remedies of" attachment and
garnishment), a pre-judgment injunction may not be issued in the guise of
such remedies. As the court succinctly stated in Alliance Royalties, LLC v.
Boothe, "If a plaintiff wants to protect its right to collect a potential
judgment, it must follow the specific statutes designed for that purpose."
313 S.W.3d 493, 497 (Tex. App. — Dallas 2010, no pet.) (holding that
temporary injunction cannot be used to effect the equivalent of
prejudgment attachment, garnishment, or receivership and bypass the
statutory requirements for such relief).
10See also, e.g., Netsphere, 703 F.3d at 309 ("[A] court may not reach a defendant's assets
unrelated to the underlying litigation and freeze them so that they may be preserved to
satisfy a potential money judgment.").
22
This Court has likewise held that when a plaintiff seeks only
monetary relief and title to the defendant's property or its sale proceeds is
not the subject matter of the plaintiff's underlying suit,
an attempt to secure the [unrelated] funds to satisfy plaintiff's
future judgment for money damages through injunction puts
the cart before the horse. [P]laintiff needs to have a judgment
first. We find no rule in law or equity that authorizes courts to
issue writs of injunction against defendants restraining them
from disposing of their property upon which a plaintiff has no
form of lien, pending litigation. [P]laintiff's attempted relief is
more in the nature of an attachment without bond.
Harper, 821 S.W.2d at 457.
Here, not only has Al-Saleh failed to request a pre-judgment writ of
attachment under Texas law, but Texas law is clear that he cannot satisfy
the requirements for such relief. Thus, the district court's temporary
injunction is an improper pre judgment writ of attachment.
Under Texas law, a pre-judgment writ of attachment is regarded as a
"harsh, oppressive remedy," and therefore, "attachment is not available
unless statutory safeguards are strictly observed." S.R.S.World Wheels, Inc.
v. Enlow, 946 S.W.2d 574, 575 (Tex. App. —Fort Worth 1997, no writ). The
statutory requirements for issuance of a pre-judgment writ of attachment
are: (1) the defendant is justly indebted to the plaintiff; (2) the attachment is
23
not sought for the purpose of injuring or harassing the defendant; (3) the
plaintiff will probably lose his debt unless the writ of attachment is issued;
and (4) specific grounds for the writ exist under § 61.002 of the Texas Civil
Practice and Remedies Code. Id; TEX. Civ. PRAC. & REM. CODE § 61.001. Al-
Saleh has not - and cannot - satisfy the first statutory requirement.
The first requirement of a "just debt" is not satisfied where the
plaintiff alleges damages arising in tort or asserts a claim for unliquidated
damages.11,12 S.R.S. World Wheels, 946 S.W.2d at 575. Here, as an initial
matter, the only true cause of action or claim that Al-Saleh has asserted
against BTB is an action on foreign judgments. Alter ego is not a separate
cause of action. See Campbell v. Adventist Health Sys./Sunbelt, Inc., 946
S.W.2d 617, 626-27 (Tex. App. —Fort Worth 1997, no writ) (" [Alter ego] is a
theory of law that, when supported by proven facts, enables a successful
plaintiff to have adjudication that the alter ego corporation is liable for
damages assessed against the corporation that is sued in the underlying
11 A "debt" is defined as "an obligation to pay a liquidated sum on an express or
implied contract." In re Argyll Equities, LLC, 227 S.W.3d 268, 271 (Tex. App.—San
Antonio 2007, no pet.).
12 Texas Civil Practice & Remedies Code § 61.005 creates an exception for suits
grounded in tort or on an unliquidated demand, but only where the plaintiff cannot
obtain personal service on the defendant in Texas. That, of course, is not the case here.
24
cause. In other words, a theory of alter ego is merely a means of increasing
the number of entities that may become liable when and if a judgment is
obtained in an underlying cause of action."). And as previously explained,
Al-Saleh's fraudulent conveyance claim is asserted in the same vein as his
alter ego theory. See supra II.A.
In any event, a fraudulent conveyance claim and an alter ego theory
do not meet the statutory requirement of a "just debt." A claim for
damages pursuant to either is grounded in tort, contingent, and
unliquidated. See In re Radiant Darkstar Prods., LLC, No. 05-13-00586-CV,
2013 WL 3718065, at *2 (Tex. App. — Dallas July 12, 2013, mandamus
denied) (holding that writ of garnishment was not available for tort of
fraudulent transfer or on a theory of piercing the corporate veil); In re Tex.
Am. Express, Inc., 190 S.W.3d 720, 726 (Tex. App. —Dallas 2005, no pet.)
(holding that writ of attachment was not available for tort of fraudulent
transfer or on an alter ego theory); see also F.D.I.C. v. Gold Park Dev., No.
CIV.A. 6:00-MC-24, 2008 WL 2325625, at *2 (E.D. Tex. June 3, 2008) (holding
that prejudgment writ of garnishment entered against alleged alter ego
25
prior to determination of alter ego was a violation of defendant's due
process rights as alter ego determination was a contingent claim).13
In In re Texas American Express, Inc., for example, the Dallas Court of
Appeals rejected the plaintiff's attempt to obtain a prejudgment writ of
garnishment on facts similar to those presented here. There, the plaintiff
obtained a judgment for $371,919.92 against a trucking company and its
driver who had caused his injuries. The plaintiff later filed suit against the
trucking company, a third-party, and the third-party's officer, alleging that
the trucking company transferred its assets to the non-judgment debtor
defendants to prevent the plaintiff from collecting on his judgment. On
that basis, the plaintiff sought to impose liability for the judgment on the
other defendants, alleging that the other defendants were the alter ego of
the judgment debtor trucking company. And further, the plaintiff sought a
13A writ of garnishment and a writ of attachment are extraordinary remedies that differ
only in the party to which they are directed. Whereas a writ of attachment is directed to
the defendant's assets that are within the state and subject to execution, a writ of
garnishment is directed to the defendant's assets that are in the hands of a third-party
or otherwise not subject to execution. See Hanson v. Guardian Trust Co., 150 S.W.2d 465,
467 (Tex. App. — Galveston 1941, pet. dism'd). Indeed, a writ of garnishment is
commonly referred to as "a species of attachment" and requires that an original
attachment have been properly issued. Buerger v. Wells, 222 S.W. 151, (Tex. 1920); TEX.
CIV. PRAC. & REM. CODE § 63.001. Accordingly, writ of garnishment cases are not
merely analogous, but directly on point.
26
prejudgment writ of garnishment of the non-judgment debtors' bank
account up to the amount of the judgment.
After recognizing that the fraudulent transfer of assets is a tort and
that the alter ego doctrine is not a substantive cause of action, but rather, a
purely remedial remedy that "expands the scope of potential sources of
relief by extending to individual shareholders or other business entities
what is otherwise only a corporate liability," the court determined that the
plaintiff's lawsuit was one for tort damages, which are contingent and
unliquidated, and the issue of whether the non-judgment debtors were
alter egos of the judgment debtor was a contingent claim that must be
determined by the fact finder. 190 S.W.3d at 726. And therefore, the
plaintiff was not entitled to a pre judgment writ of garnishment. Id.
Significantly, the court also rejected the plaintiff's contention that
because he was simply trying to collect on his judgment, the "debt" is
liquidated in the amount of the judgment. Id. The court explained, "at this
preliminary stage, the judgment is not a 'debt' of [the non-judgment debtor
defendants]. [Plaintiff]'s claims against them are contingent and
unliquidated," and the statute applies only when the plaintiff is suing for a
"debt." Id.
27
As in In re Texas American Express, while Al-Saleh has a "debt"
against Sargeant by virtue of the Florida judgment, he does not have a
"debt" against BTB. Until the fact-finder has resolved Al-Saleh's
allegations that BTB is Sargeant's alter ego, his claims against BTB are
contingent and unliquidated. Accordingly, Al-Saleh is not entitled to a pre-
judgment writ of attachment, and the district court therefore erred in
granting him one in the guise of a preliminary injunction.
B. BTB Does Not Have An Adequate Remedy At Law To Obtain
Relief From the District Court's Improper Pre-Judgment
Attachment Of Its Money.
When viewed in its proper light - as an improper pre judgment
attachment rather than a temporary injunction as styled by Al-Saleh and
the district court - it becomes apparent that BTB does not have an adequate
remedy at law by appeal. In In re Argyll Equities, the court held that a
"heavy-handed" writ of attachment freezing the defendant's assets, which
it needed to meet its operating costs, left the defendant without an
adequate remedy at law, and therefore, a writ of mandamus was
appropriate. 227 S.W.3d at 273; S.R.S. World Wheels, 946 S.W.2d at 575
(holding mandamus relief is appropriate to challenge an improperly
obtained writ of attachment because the relator had no adequate remedy at
28
law to re-obtain possession of its property). Here, although the district
court's order purports to be a temporary injunction, as previously
demonstrated, it is actually an improper pre judgment attachment of a
significant amount of BTB's cash assets - approximately $22 million to be
precise - which BTB needs to meet its outstanding obligations and ongoing
- albeit reduced - costs of operation. See supra III. Accordingly, the
remedy by appeal afforded by Texas Civil Practice and Remedies Code
§ 51.014(a)(4) is inadequate.14
BTB has therefore filed a petition for writ of mandamus
contemporaneously with its appellate brief and respectfully requests that
this interlocutory appeal be treated as an original proceeding for writ of
mandamus, and that the Court act thereon and issue an order directing the
319th Judicial District Court, Nueces County, to vacate its July 2, 2015
"Order On Temporary Injunction."
14Texas Civil Practice and Remedies Code § 51.014(a)(4) provides that "[a] person may
appeal from an interlocutory order of a district court, county court at law, statutory
probate court, or county court that . . . (4) grants or refuses a temporary injunction or
grants or overrules a motion to dissolve a temporary injunction as provided by Chapter
65."
29
IV. As CONCERNING BTB, AL-SALEH HAS ALREADY OBTAINED HIS
ADEQUATE REMEDY AT LAW.
Al-Saleh has brought this suit against BTB for the sole reason that he
has been unable to collect on his judgment against Sargeant (CR 3940).15
But his dispute with Sargeant has nothing to do with BTB. As a member of
BTB, a limited liability company, Sargeant does not have an interest in any
specific property owned by BTB. Enzo Invs., 2015 WL 3524461, at *10.
Consequently, Al-Saleh's exclusive remedy against Sargeant with respect
to BTB is a charging order, which grants Al-Saleh a lien in any distributions
by BTB to Sargeant. TEX. Bus. ORG. CODE § 101.112(b) (judgment creditor
with charging order has "only the right to receive any distribution to which
the judgment creditor would otherwise be entitled in respect of the
membership interest").
Under Texas Business Organizations Code § 101.112, a charging
order is the exclusive remedy against an LLC member's interest.
Specifically, the statute provides, "The entry of a charging order is the
exclusive remedy by which a judgment creditor of a member or of any
15Al-Saleh alleges, "Defendant Sargeant has consciously refused and systematically
avoided satisfying the foregoing Judgments against him notwithstanding his obvious
ability to satisfy such Judgments . . . to the extreme detriment of the Plaintiff."
30
other owner of a membership interest may satisfy a judgment out of the
judgment debtor's membership interest." TEX. Bus. ORG. CODE § 101.112(d)
(emphasis added). Al-Saleh has already obtained that relief (CR 31-33).
Prayer
This court should vacate the trial court's temporary injunction in its
entirety, as to both Sargeant and BTB (and its agents, officers, members,
etc.), and grant such additional relief to which BTB may be entitled.
31
Respectfully submitted,
/s/ Mark T. Mitchell
Mark T. Mitchell
Texas Bar No. 14217700
Gardere Wynne Sewell LLP
600 Congress Avenue, Suite 3000
Austin, Texas 78701
Tel: 512.542.7072
Fax: 512.542.7272
Deirdre B. Ruckman
Texas Bar No. 21196500
Stacy R. Obenhaus
Texas Bar No. 15161570
Debbie E. Green
Texas Bar No. 24059852
Gardere Wynne Sewell LLP
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Tel: 214.999.4250
Fax: 214.999.3250
ATTORNEYS FOR APPELLANT BTB REFINING, LLC
Certificate of Compliance
I certify that this document contains 5,763 words, apart from those
parts excluded by Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Debbie E. Green
Debbie E. Green
Certificate of Service
I certify that this document was filed on August 31, 2015, pursuant to
the electronic filing requirements of the Thirteenth Court of Appeals,
which provide for service on counsel of record below in accordance with
the electronic filing protocols in place:
Daniel D. Pipitone
Kenneth W. Bullock, II
Sameer S. Karim
Munsch Hardt Kopf & Harr PC
Pennzoil Place
700 Milam, Suite 2700
Houston, Texas 77002
dpipitone@munsch.com
kbullock@munsch.com
skarim@munsch.com
/s/ Debbie E. Green
Debbie E. Green
33
Appendix A
Al-Saleh's Judgments
(Sept. 19, 2011; Feb. 9, 2012; and Sept. 16, 2013)
(CR 8-26)
34
2014DCV-5860-G
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
MOHA MAD ANWAR FARID CASE NO.50 2008 CA 010387 XXXX MB A.1
AL-SALER,
Plaintiff,
V.
HARRY SARGEANT, HI,
MUSTAFA ABU-NABA'A, and
INTERNATIONAL OIL TRADING -0 LP
COMPANY, LLC, a Florida corporation. IrTIP
t;3
1
Defendants. ra,
--4=0)
CI cF4 017
,4 .7L■ ZIC
4.1.2
FINAL ,I1RDGMENT ON TIig VERDICT r It 0 imes
tit
WHEREAS, in the above-captioned case (Case No. 50 2008 CA 010187 XI= la Air
Plaintiff Mohammad Anwar Farid Al-Saleb filed a complaint on April 10, 2008, against
Defendants Harry Sergeant, III, Mustafa Abu-Naba'a and International Oil Trading Company,
LLC (IOTC USA") asserting claims for common law fraud, conspiracy to commit fraud, aiding
and abetting fraud, breach of fiduciary obligations underJordanian law, tortious injury under
Jordanian law, and breach of the Unfair Competition and Trade Secrets Law Number 15 of the
Year 2000 under Jordanian law;
WHEREAS, the above-captioncd action came to trial before this Court on July 11, 2011,
to determine whether Defendants Sargeant, Abu-Naba'a and IOTC USA were liable for money
damages to Plaintiff Al-Saleh;
WHEREAS, upon 4, jury trial, the jury found in favor of Plaintiff Al-Saleh on Plaintiff s
claim of common jaw fraud;
CFN 20110365313, OR BK 24772 PG 377,RECORDED 09/30/2011 11:43:16 8
Sharon R. Bock,CLERK & COMPTROLLER, Palm Beach County, NUM OF PAGES 4
2
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh on Plaintiff's
elaim of conspiracy to commit fraud;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh on Plaintifrs
claim of aiding and abetting fraud;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al.Saleh on Plaintiff's
claim of breach of fiduciary obligations under Jordanian law;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Salch on P -n
claim of tedious injury under Jordanian law;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff AI»Saleh on Plaintiff's
claim of breagb of the Unfair Competition and Trade Secrets Law Number 15 of the Year 2000
under Jordanian law,
WHEREAS, the jury awarded laintiff Al-Saleh damages in the amount of
528,800,000,00 for all claims;
ORDERED AND ADJUDGED AS FOLLOWS:
A. Plaintiff does and recovers from the Defendants, jointly and severally, judgment
in the amount of 528,800,000.00, together with post-judgment interest at six percent (6%), nunc
pro now to July 27, 2011, for all of which let execution issue.
13. The names and addresses of the parties are:
a. Plaintiff: Mohammad Anwar Fluid Al-Saleh
do Louis M. Silber, Esquire
Silber Valente & Davis
1806 Old Okeechobee Road
West Palm Beach, Florida 33409
b. Defendants:
Harry Sargeant, Ill
420 North Ocean Boulevard
2
9
091,1414 MISSOMt kit= 74712 INIPG llnk I NI 4
Delray Beach, FL 33483-7363
c. lvhistafa Abu-Naba'a
2951 S. Bayshore Drive, #1014
Coconut Grove, FL 33133-6002
d. International Oil Trading Company, LLC
1 North Federal Highway, Suite 500
Boca Raton, Florida 33432
C. The judgment debtors shall complete under oath Florida Rule of Civil Procedure
Form 1.977 (Fact Information Sheet), including all required attachments, and serve it on the
judgment creditor's attorney, or the judgment creditor if the judgment creditor is not represented
by an attorney, within 45 days from the date of this final judgment, unless the final judgment is
satisfied or post-judgment discovery is stayed. The fact information sheet need not be recorded
in the public records.
b. Jurisdiction of this case is retained to enter further. orders that arc proper to
compel the judgment debtors to complete form 1.977, including all required attachments, and
serve it on the judgment creditor's attorney, or the judgment creditor if the judgment creditor is
not represented by an attorney,
E. The Court denies an award of pre;judgmt interest because Plaintiff's loss
,,_js, 46 Sold 42,46 (Fla.
cannot be "fixed as of a definite time," See flostm v. Musa Holdings11
2010) The Court reserves jurisdiction awarding attorneys' fees, if any, and taxable costs.
10
CFAWtv *Mat WON 10VIt s
4
The Clerk of the Court is directed to enter this judgment.
Dated this day of September, 2011.
Copies provided;
Louis M. Silber, Esq. and Allison J. Davis,. Esq., 1806 Old Okeechobee RoadWest Palm Beach,
FL 33409
Barry Ostrager and Rachel S. Weiss, Simpson Thar,,her & Bartlett, 425 Lexington Avenue, New
rOlk, NY 10017
Michael D. Kibler and Jonathan M. Weiss, Simpson masher & Bartlett, 1999 Avenue of the
Stan, 29th Floor, Los Angeles, CA 90067
Roger S. Kobert, Esq., and Marc C. Pugliese, erty Kober% Tenakholtz, Bounds & ,
Hess, P.A., 1401 %kid! Avenue, Suite 01125, Miami FL 33131
I hereby certify that the foregoing is a true copy
of the record in my office this day, Nov 12, 2014.
Sha Ft. Bock , Clerk Circuit Court, Palm Beach County, Florida
BY Deputy Clerk 11
DRIPAINTICIPEPHIHIP
UP MIR?, t11144NW4£ COMM rims
114 TO =or cow OP TM WWII!
KO MI.. =MIT lt4 AID PDX PALM
DIACII OOLIPM, PLORIDA
MCWIAMMAO ANWAR MUD CA92140.502001 CA MOP V= MS A1
AU/W 1,
taletY SARGBANT, gl,
UthitrAPA AERPHABA'A,
IIVISRNATIO
NWOIL TRAINKtr" '
COMPANY, 1.14 a Plodder avondices.
UL
Maki.StaaanallaMigffa
WIMAS, to am abovo.usoromil aim Vass No, 50 31111$ (IA 0 1 ON7 4;02X
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LECOOTC MI ward* mimbni Sarcoma*. Isw ll pd, comaiermayits commit grata, Odin
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Yet Mk ark/ rodeitha be%
MMUS, IhmtkonkoefAlorsed 4We* emmatetrislbeftwa *IP 0011114 um July 11, 201
tedefembp, ivisidlittraahrekrAt SmegiiiAixi4Astasnd-101V VSA-vmxe 1144 limLiftimsr.
dittriagin to 74)11mdirOamlohi
Wes, Gime • No triml, ditilmy bad in buiv: of Ilimber Al-Stlith on Plaintiff,s
akin( rti mown= law hulk
OPH 20110366313, OR BK 24772 PG 377,RBCORDED 09/301201i 11:49:16
Sharon a BockCLERK & COMPTROLLER, Palm Beech County. NUM OF PAGES 4
12
WHEREAS, wan aim triaL *allay bumf to Omar afPlairalfrA14tiatt as Piallifftv
Okla st amappizatay ta 4;oarmit ta0d1
WHEREAS, waft apay Wa4,thajary ?mad ia 6v0r*refEredff MAO* co ,1111Witrs
*1110 ormad110 tb5 attf44191331;
WHEM1420xpaa *joy triptfisajtoryfirattla
*lain of breach of gdmahry abilagicamodar kidaalaa
IVEEREA9, *key altd,.fhajwy Read in favor a f Piethatff A1-80all on ?UMW*
tuba l ionloasNatly aa4air kraionlaa • •
WHIM"-*Eat ajta7 trial, &Oar/ bind la twor af Naha? Al;Ealah oa Plaiattri
dat if bralOb at do UaDirOmpoiftlan and Trothawate Law Number 15 algae Year 2000
under Meal** law, '
vtrushis, tbajury awarded PloktiffAI-Eatall ihmara in Ma wow Of
1120,300,000,00 Ryon ebb"
ORDERED A1,0 ADJUDGED ADVOLLOW
Are rialaffir &ea and ratama float t4saa Dakalank linty lad lawirafiy, Apart
la Da amount ar 313,800.000 VD, tagallat irt01 padladantent Warta at fix patea4(614), mac
pry traa 10 My 27, 2U11, rat *11 afev144aki letoaam0an taw
D. 'Mamma and otkimaiva otthe verges ***
a. Plaled 14fabaturaad,Aavialluld Al-Sakik
019 Loodst4. Mbar, aRakto
11$10* mod! "
1906 Old atoo Reef
Wan hba DONN Sad& 33409
b. Daireadantt
Hwy Muslim% 01
420 Nowt 001411110aulommi
ilatilaanfteRnkimerti,t04
13
palmy Amok n, s343.7343
1441nosto Abwthbra
2951 9, Boohoo MK 11014
00001101070101,13113401:2
4, latzunellece 011112dItsamattA
North Podxsi Moho% Soho POO
anon floorni Bloats 1303'
C. The judgment datthno still nroonoo *Mr oath Moth's Rote of Civil Procedure
Porte 1117 (Peat tofbrrentime Ike°, %Ayala511 tscohoti sseilInnents, todi servo fF es; the
judnomatotwiltods istorooyost.thojudinnot mobs fithojodsrnonstrodborionot.nnonornoti•
by at Stormy, within 45 day" trott tho doss of Ws eraijudstoont, Woo the Iblelltstatest Is
sofellei or postiudposgt tricot my to shipsd. The tke lothrortleo sited wed not bs woonled
.1n this totblis toscodr.
ro, lutliestino or this ooso todrined agar Anther , axiom that we mow to
1:110$1 the Moses dohloro In °cockle &MI 1,9771 incindiog a,A ROM alloanontx oxf
rorsoitsso the judgatattvirdikentwanwprtIOPATOOntatdliur tristjutistodristdik&V
nrsePtintod SO stoney,
.E The Court denies en ewsrri of prefidgelent interest boom Pidetilre
=mot Bo 'TRIO Wee attend *Step Sst Mglejlittgage,,ka, BoAli 42,46(RC
2010) Theo Court reserves Pried/oda ono* sitteheyettes, W at red taxably ocott
IIIIIIMMIRIINKeilatAtiiftniff
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4
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I, of tko Court is dingkel timer d
Not Ode . or didioaden fit(.
Cadkoperekbdr.
Limb Oilbdri od Mine 4. DION diud. I led Oki Oloollebed o; !hi ?dm Iikok#
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tOo, Mk Roar, Lem Moded, 4, POW
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Uns, PH4.1 1461 AWN% ad% NEM lifired. I% 051 I
4
that the arepoing le a Ws ,00py
0,3 eis (goy, ett03, 2011,
ult Court, Per Beaoh Coot Portia
Deputy Clerk
15
2014DCV-5860-G
IN THE CIRCUIT COURT OF THE 15"4 JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO,. 50 2008 CA 010187 XXXX MB AJ
MOHAMMAD ANWAR FARID AL-SALEH
Plaintiff, Tt' `11
Cr%
CO
02 to
HARRY SARGEANT,
MUSTAFA ABU-NABAA, and
INTERNATIONAL OIL TRADING
COMPANY, LLC, a Florida corporation,
Defendants,
FINAL COST JUDGMENT FOR PLAINTIFF
This matter came before the court upon the Plaintiff's Motion to Tax Costs filed
August 8, 2011, After a hearing on notice, the court entered its Order Granting Plaintiff's
Motion to Tax Costs dated February 2, 2012. Accordingly, it is:
ADJUDGED that the Plaintiff, MOHAMMAD ANWAR FARM AL-SALEH, have
and recover of the Defendants, HARRY SARGEANT, 111, MUSTAFA ABU-NABAA,
and INTERNATIONAL OIL TRADING COMPANY, LLC, a Florida corporation, taxable
costs in this action in the total amount of EIGHTY-FIVE THOUSAND FOUR HUNDRED
EIGHTY-NINE DOLLARS AND NiNETY•SEVEN CENTS 485,1189.97), for all of which
let execution issue forthwith. This judgment shall bear interest at the rate of 4.75
percent per annum until paid.
The names, addresses of the parties are:
Plaintiff: 1420 North Ocean Boulevard
MOHAMMAD ANWAR FARM) AL-SALEH Delray Beach, FL 33483-7363
do Louis M. Silber, Esq.
SILBER & DAVIS Defendant:
1806 Old Okeechobee Road MUSTAFA ABU-NABA'A
West Palm Beach, Florida 33409 Social Security Number: UNKNOWN
2951 S. Bayshore Drive, * 1014
Defendant: Coconut Grove, FL 331 002
HARRY SARGEANT, III
Social Security Number: REDACTED Defendant:
CFN 20120056921, OR BK 25011 PG 804,RECORDED 02/11/2012 12:01:42 16
Sharon R. Bock,CLERK & COMPTROLLER, Palm Beach County, NUM OF PAGES 2
International Oil Trading Co., LLC Boca Raton, FL 33432
1 North Federal Highway, Suite 500
The Judgment Debtors shall complete under oath the Florida Rule Of Civil
Procedure Form 1.977 (Fact Information Sheet), including all required attachments, and
serve It on the judgment creditors attorney, or the judgment creditor if the judgment
creditor is not represented by an attorney, within 45 days from the date of this final
judgment, unless the final judgment is satisfied or post-judgment discovery is stayed.
The fact information sheet need not be recorded in the public records.
Jurisdiction of this case is retained to enter further orders that are proper to
compel the judgment debtors to complete Form 1.977, including all required
attachments, and serve it on the judgment creditor's attorney, or the judgment creditor if
the judgment creditor is not represented by an attorney.
DATED this day of February, 2012
HON . ROSE BERG
Circuit Court Judge
Copies furnished to: Miami 3131
Louis M. Silber and Allison J. Davis Carlos L. de Zayas
1806 Old Okeechobee Road Lydecker I Diaz
West Palm Beach, Florida 33409 1221 Brickell Avenue, 19th Floor
Miami, FL 33131
Barry Ostrager and Rachel S. Weiss,
Simpson, Thatcher & Bartlett
425 Lexington Avenue
New York, New York 10017
Michael D. Kibler & Jonathan M. Weiss
Simpson, Thatcher & Bartlett
1999 Avenue of the Stars, 29 Floor
Los Angeles, CA 90067
Roger S. Kobe, Esq. and Mark
Pugliese, Esq.
Rafferty, Kobert, Tenenholz, Bounds &
Hess
401 Brickell Ave., Suite 825
ac
tY4OEN157 OF
I hereby certify that the foregoing is a true copy
of the record in my office this day, Nov 12, 2014.
She R. Bock , Clerk Circuit Court, Palm Beach County, Florida
BY Deputy Clerk 17
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kV The (=Mr ODURTOF THE le 41.1=41,, CIROUIT
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&did Ow* Number; RIEDAOTED Defenant:
CFN 20120050921, OR SK 25011 PG 804,RECORDED 02/11/2012 12,01:42
Sharon R, Book,CLERK St COMPTROLLER, Palm Bosch County, NUM OF PAGES 2
18
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BY & r Deputy Cie*
19
2014DCV-5860-G
IN THE CIRCUIT COURT OF THE 157." JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50 2008 CA 010187 XXXX MB AJ
MOHAMMAD ANWAR FARID AL-SALEH, f=E
•••.r
ILO
Plaintiff/Judgment Creditor, fen
VS,
HARRY SARGEANT,
MUSTAFA ABIJ-NABA'A, and
INTERNATIONAL OIL TRADING
COMPANY, LLC, a Florida corporation,
Defendants/Juxigrnott Debtors.
S
HEREAS, in the above-captioned 'case (Case No 50 2008 CA 010.187 XXXX MB AJ),
Plaintiff Mohammad Anwar Fruid AbSaleh. filed a complaint. on April 10, 2008, against
Defendants Harry Sargeant, 1II, Mustafa Aba-Naba'a and bitetnational Oil Trading Company,.
LLC ("10TC USA") asietting claims for common law fraud, conspiracy to commit fraud, aiding
and abetting fraud, breach of fiduciary obligations under Jordanian law, tortious injury under
.Jordanian law, and breach of the Unfair Competition and Trade Secrets Law Number 1-5 of the
Year 2000 under Jordanian law;
WHEREAS, the above- till action came to trial'efore this Court on July 11, 2011,
to determine whether Defendants Sargeant, Abu-Naha`a and IOTC USA were liable for money
damages to Plaintiff Al-Salch;
WHEREAS, upon a jury trial, the jury found in favor' of Plaintiff Al-Saleh on Plaintiff's
claim of common law fraud;
1
CFN 2013 09025, OR Bid 26327 PG 704,RECORDED 09/17/2013 08:2551 20
Sharon R, Bock,CLERK & COMPTROLLER, Pafrn Beach County, NUM OF PAGES 4
CASE NO. 50 2008 CA 010187 XXXX MB AJ
WHEREAS, upon a jury trial, found in favor of Plaintiff Ai-S orn Plaintiff's
claim of conspiracy to commit fraud;
WHEREAS, upon a jury trial, the jury in favor of Plaintiff Al-deli on Plaintiff's
claim of aiding and abetting fraud;
WHEREAS, upon a jury trial, the jurylowad in favor of Plaintiff Al-Saleh on Plaintiff's
claim of breachof fiduciary obligations. under Jordanian law;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh on Plaintiff's
of tortious injury under Jordaajah law;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff -Saleh on Plaintiff's
claim of breach of the Unfair Competition and Trade Secrets Law NUMber 15 of the Year 2000
under Jordanian law;
WHEREAS, the jury award Plaintiff At-Saleh damages in the amount of
$28,800,000.00 for all claims;
WHEREAS, the Fourth District Court of Appeal issued an opinion on August 7, 2013
awarding Plaineff pre-judfairent interest on the amount of $28,800,000.00 from August 31, 2009
to July 26, 2011; and
WHEREAS, the Fourth District Court of Appeal issued its mandate on August 23, 2013
remanding for fluter proceedings consistent with its August 7, 2013 opinion.
ORDERED AND ADJUDGEDAS FOLLOWS:
A. Plaintiff does and recovers from the Defendants, jointly and ly, judgment
in the amount of $3,484,753,92 whith is supplemental and. additional tm the ntl judgtnnennts
entered in this CAW on September 19, 2011 .in the amount of "$28,800,000.00 plus post-judgment
interest non pro tune to July 27, 2011 ("Verdict Judgment") and February 9, 2012 in the amount
21
9■401121MTPAGE7C62rin
' * "
CASENO.:50 2008 CA 010187 =CC MB AJ
of S85,489.97 plus post-judgment interest ("Cost Judgment"), together with post-judgment
interest at the applicable statutory rate set forth by State of Florida's Chief Financial °Meer, PM
pro tzoic to July 27, 2011, for all of which let execution issue Forthwith.
B. The names and addresses of the parties are:
Plaintiff:
.44t.... .'%.
Mohammad Anwar Farid Al-Saleh
e/0 Edward H. Davis, it Esquire
Astigarraga Davis WINO & Grossman, P.A.
701 Brickell Avenue, 16" Floor
Miami, Florida 33131
Defendants:
Harry Sergeant, III
1420 North Ocean Boulevard
Delray Beach, FL 33483-7363
Mustafa Abu-Naba'a
2951 S. Bayshore Drive, #1014
Coconut Grove, FL 33133-6002
International Oil Trading Company, LLC
North Federal Highway; Suite 500
Boca Raton, Florida 33432
C. The judgment debtors shall complete Under oath 'Florida Rule of Civil Procedure
Form 1.917 (Fact information Sheet); including all required attachments, and serve it on the
judgment creditor's attorney, or the judgment creditor if the judgment creditor is notrepresented
by an. attorney, within 45 days from the date of this final judgment, unless the fmal judgment is
satisfied or pest judgment discovery' is stayed. The fact information sheet need_ nOt be recorded
in the public records.
D. hirisdiction of this case is retained to enter further orders that are proper to
compel the judgment debtors to complete form 1.977, including all required attachments, and
22
'
CAS 'NO, 50 2008 CA 010187 >MIA MB AI
wive it on the judgment creditor's attorney, or the judgment creditor if the judgment creditor is
not reprinentedlYy an attorney,
The Court reserves jurisdiction to award earners fees, if any, and taxa& costs.
The Clerk of the Court is directed to enter this joionent.
y of September, 2013.
Copies provided;
Alt Counsel of Record
4
••
I hereby certify that the foregoing is a true copy
41) of the record in my office this day, Nov 12, 2014.
r Sher n R. Bock , Clerk Circuit Court, Palm Beach County, Florida
0 112 Deputy Clerk 23
BY 4)—A,
IN THE CIRCUIT COURT OF THE 15Th JUDICIAL CIRCUIT
IN ANT) FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50 2008 CA 010187 ,OCOC MB AJ
MOHAMMAD ANWAR. FARM AL-SALEH,
Plaintiii7Judgment Creditor,
HARRY SARGEANT,
IvIUSTAFA ABU-NABA'A, and
INTERNATIONAL OIL TRADING
COMPANY, LLC, a Florida corporation,
Deferulantailudgment Debtors,
AMEND SUITLEMEENTAL ITVDGMEFf AWAR)jNG
EifficalRONEMEMBEen
WHEREAS, in the above-captioned case (Case No 50 2008 CA 010187 C. MB AI),
Plaintiff Mohammad Anwar Farid Al-Saleh filed a complaint on April 10, 2008, against
Defendants Harry Sargeant, III, Mustafa Abu-Naba'a and Inbsrnational Oil Trading Company,
LLC ("IOTC USA") asserting claims for common law fraud, conspiracy to commit fraud, aiding
and abetting fraud, breach of fiduciary obligations under Jordanian law, tortious injury under
Jordanian law, and breach of the Unfair Competition and Trade Secrets Law Number 15 of the
Year 2000 under Jordanian law;
WHEREAS, the above-captioned action came to trial be ore this Court on July 11, 2011,
to determine whether Defendants Sargent, Abu-Naba'a and 10TC USA were liable for money
damages to Plaintiff Al-Saleh;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Ai-Saleh on Plaintiff'
claim of common law h
CFN 20130477731, OR BK 26425 PG 233,RECORDED 11/01/2013 19:11:37 24
Sharon R. Bock,CLERK & COMPTROLLER, Palm Beach County, NUM OF PAGES 3
CASE NO. 50 20011t 6A .787 XXXX MB AJ
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh on Plaintiffs
-tt
claim of conspiracy to commit fraud',,
WHEREAS, upon. a. jpry-,trial, -the jury found in favor of Plaintiff Al-Saleh- on Plaintiff's
claim of aidi and abetting:1mA
WHEREAS,- upon e jury nial,*the jury found in favor ofPlaintiff Al-Salph on Plaintiff's
claim of bmach of fiduciary-obligati under Jordanian law;
WHEREAS, upon a jury trial the jtiry found in faiior of:Plaintiff Ai-S eh on Plaintiff's
claim .of torttous injury undet.46idaniart law;
' tiffs
WHEREAS, upon a jury trial, the jury found in favor ofPlaintilf Al-Saleb on Plain
claim of breach'of the Untali'eonipetition and Trade Secrets -Law Number 15 cif the Year 2000
under Jordanian law;
WHEREAS, the jmy -Sikh in the amount of
V28,800,000;00 for all elairns;
WHEREAS, the FOurthDistrict Court of Appeal issued an opinion on 'August 7, 2013
awarding Plaintiff prerjudgritept interist on the arammt of $28i80Q,000:00 from ugust 31, 2009
to July 26,. 2011; and
WHEREAS, the:Fp issued its mandate on Angust 23, 2013
'Court of Appeal issu
remanding for further proceedings consistent with its August,7,1013 opinion.
RDERED AND ApitlfiGED AS FOLLOWS:
Plaintiff does And-recovers from the Defendants, jointlyvexty,
. judgment
in the amount of 13,484;75192 whith is supplemental and additional to the Other judgments
entered in this case on September 19, 2011 in the amount cif-1;28,800,0000o phis postjudgment
intentst pro tune to July 27, 2011 ("Verdict Judgment', and February 9, 2012 in the amount
2
25
, -
•. —
_
, 2- — Na 50 2008•CA 87 XXXX MB Ai
. of 585,489.97 plus post-judgment interest ("Cost Judgment"), together with post -judgment
• interest at the applicable statutory rate set forth by State of Florida's Chief Financial Officer,
music pi o anic to July 27, 2011„fer all of which let execution issue forthwith.
B. The names and hire eta of the parties
Plaintiff:
MohamratidAnwar Parid Al.Saleh
do Edward Ft Davis, k, Esquire
A.stigatragai3avia Muffins & Grossinank P.A.
701 Btfekell -Avenue, I PIOCC
• Wurmii,Ficiiidli 33131
Defendants:
14arrY-Site:ani, 111
I 42014irth Own Boulevard
Cluifeilearn, Pt 33483
Mustafa "-Naha's,
C.ArloSSanchez y Sanchez #22
l*ItWeo
oomingo, Dominican Republic
Santo.1
International Oil Trading Cofilpany LLC
I North Federarnighway; Suite 5.00
Boca limn, Florida 33432
C. The Cowl reserves jurisdiction to award attorncyts fees, if any, arid 'amble costs.
The Clerk of the Court is directed to enter this judgment_
Entered this 30th day of October, 2013 sum pro ow* to Sctesther 16, 2013.
Copies provided;
All Ccgunsel of Record
3
24 3 I
I hereby certify that the foregoing is a true copy
of the record in my office this day, Nov 12, 2014.
Sharon R. Bock , Clerk Circuit Court, Palm Beach County, Florida
BY Deputy Clerk 26
Appendix B
Agreed Order Charging Membership Interest of Harry Sargeant, III in
BTB Refining, LLC
(Feb. 10, 2013)
(CR 31-33)
35
••
• zez .• • 0 •ir Azzt 0 PA izz, or • 0.,
gr." MI Y VI • 1 '•■S'
VatthAVSALEH
Plaintiffauttmentiarediteri
819,11, =terAt WWI!
ROAT — _ ANTIA
DALTSTAPAA BU-NAgNi4, and,
tNiVilistiktibNAVC'RAI).
- '76
ca4101V, ttc,
OefenclantsgiggrRent0949M. • • '
zt
GINGIVIEMOSnir
ANTAIEDI 13TBIREEINING, LTC
111- 1R atITO llototo tsnitt 04, Aq4'ealitotiott, Or Le
"V19#9,4111.pd:byIngig mapps1,
.. 447/41*14:_, 4A1phr WI‘ 0.940,PitaaYing.
ThiP4zget is::0-.go.utia0:011pg.tAtitiArjagttc% tg.is 4,g)gireitiR peeroDarging
Ilarry:Sarrant, IIPEV5Sar eannanen bersl p ifitdteagqiikaTandinin*ALC:03
.A1-$41.01rpoyoto:01-10$5110A344.10*0.1***41$4r;500ft
eVgdizt-, da,ted NeptiriberS9,-20:14,-inthemmount-or--- - -
y
01 ..-
114,1000 tunsii041#01191.14
• '. The 'Sinai Cat. radkgent, dated :Eabilidry..N2012;
a:5;48.91,'UfgetlietVith. 00.'a-jildgnientinteren arttiV. gOnnaa AAR,
10.7v 41ncY'47,3191ii
31
•• •• •..
'
A
14:1 Acigglegcikg ;.-pregiginteAt; -Were* :MOT
. -
igettaier :10; 01%, KIM .4d6iitit $844,--:?p,tf:f:. urethdi;tam watluctInAnt
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'
Appendix C
Verified Amended Petition, Third-Party Petition, Application for
Temporary Restraining Order and Injunctive Relief and Request for
Appointment of Receiver
(June 2, 2015)
(CR 38-72)
36
Filed
6/2/2015 6:21:53 PM
Anne Lorentzen
District Clerk
Nueces County, Texas
CAUSE NO. 2014 DCV-5860-G
MOHAMMAD ANWAR FARED IN THE DISTRICT COURT FOR
AL SALEH
Plaintiff/Judgment Creditor,
v. 319th JUDICIAL DISTRICT
HARRY SARGEANT III,
MUSTAFA ABU-NABA'A, and
INTERNATIONAL OIL TRADING
COMPANY, LLC, BTB REFINING, LLC
and SARGEANT MARINE, LTD.
Defendants/Judgment Debtors. NUECES COUNTY, TEXAS
VERIFIED AMENDED PETITION, THIRD-PARTY PETITION, APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF
AND REQUEST FOR APPOINTMENT OF RECEIVER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff Mohammad Anwar Farid Al Saleh ("Plaintiff' or "Al Saleh"),
and files this Verified Amended Petition, Third-Party Petition, Application for Temporary
Restraining Order and Injunctive Relief and Request for Appointment of Receiver ("Petition"),
complaining of Defendants/Judgment Debtors Harry Sargeant III ("Sergeant"), Mustafa Abu
Naba'a ("Naba'a"), International Oil Trading Company, LLC ("IOTC USA"), BTB Refining,
LLC ("BTB") and Sargeant Marine, Ltd. ("Sargeant Marine") (sometimes collectively
"Defendants"). In support thereof, Plaintiff would respectfully show unto this Court as follows:
TO BE FILED UNDER SEAL:
CONTAINS SENSITIVE INFORMATION
38
I.
DISCOVERY CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level Two (2) of Rule 190.3 of the
Texas Rules of Civil Procedure, seeks monetary relief in excess of $1,000,000, a Temporary
Restraining Order ("TRO") and further injunctive relief against Defendants Sargeant, BTB and
Sargeant Marine, and further seeks all other relief, whether at law or in equity, to which it is
justly entitled.
II.
INTRODUCTION AND SUMMARY
2. On September 20, 2011, and after a Jury Trial before the Fifteenth Judicial Circuit
Court in and for Palm Beach County, Florida, the Florida Court entered a Final Judgment on the
Verdict in the amount of $28,800,000.00, plus post judgment interest at a rate of six percent
(6%), nunc pro tunc to July 27, 2011. On February 9, 2012, a Final Cost Judgment for Plaintiff
was entered in the amount of $85,489.97. On September 16, 2013, a Supplemental Judgment
Awarding Pre-Judgment Interest in the amount of $3,484,753.92 was entered.1 All of the
foregoing Judgments (collectively "Florida Judgments") have become final and no opportunity
exists whatsoever to alter them in any form. Notably, Mohammad Anwar Farid Al Saleh, the
Plaintiff herein, is the Judgment Creditor. Also notable is the fact that Harry Sargeant III,
Mustafa Abu Naba'a and International Oil Trading Company, LLC three (3) of the Defendants
herein, are the Judgment Debtors.
3. As referenced above, the Judgment Debtors are Defendants before this Honorable
Court. In particular, Defendant Sargeant has consciously refused and systematically avoided
satisfying the foregoing Judgments against him notwithstanding his obvious ability to satisfy
such Judgments. Defendant Sargeant has evaded his obligations as determined by the Florida
I See Exhibits A, B and C, true and correct copies of the Florida Judgments.
39
Jury and Court to the extreme detriment of the Plaintiff. Defendant Sargeant has done so for a
period now approaching four (4) years. In essence, Defendant Sargeant has displayed a sheer
and utter contempt and disregard of the judicial process.
4. A sales transaction is scheduled to close on or about June 5, 2015 at which time
Defendant BTB, and ultimately Defendant Sargeant as Defendant BTB is merely his alter ego,
would ultimately receive approximately $52 million. A portion of the foregoing sum should
quite clearly and justly be distributed to Plaintiff in order to completely and fully satisfy the
Judgments existing in his favor. Plaintiff respectfully requests the assistance of this Court for
this purpose.
5. Plaintiff immediately seeks a Temporary Restraining Order enjoining Defendants
from disposing of, directing or transferring away, or in any way removing the availability of
funds sufficient to satisfy Plaintiffs judgments and to direct such funds to be taken into custody
by a receiver appointed by this Court. Plaintiff requests such relief given the substantial
likelihood, even certainty, that such funds shall be immediately transferred to offshore accounts
or accounts otherwise beyond the jurisdictional powers of this Honorable Court, by further
frustrating Plaintiff's attempts to have satisfied the Judgments duly and lawfully entered in his
favor.
III.
PARTIES, JURISDICTION AND VENUE
6. Plaintiff Mohammad Anwar Farid Al-Saleh is a citizen of Jordan and resident of
Amman, Jordan.
7. Defendant Harry Sargeant III is an individual whose primary residence is in the
State of Florida. Defendant Sargeant may be cited by serving process upon him individually at
his usual place of abode at the following address, or wherever he may be found: 1420 North
40
Ocean Boulevard, Gulfstream, Delray Beach, Florida 33483-7363. Defendant Sargeant has been
served and has appeared by counsel of record in connection with this matter.
8. Defendant Mustafa Abu Naba'a is an individual whose primary residence is in the
State of Florida. Defendant Naba'a may be cited by serving process upon him individual at his
usual place of abode at the following address, or wherever he may be found: 2951 S. Bayshore
Drive #1014, Coconut Grove, Florida 33133.
9. Defendant BTB Refining, LLC is now a limited liability company organized and
existing under the laws of the State of Texas, with its purported place of business in Texas
located at 6600 Up River Road, Corpus Christi, Texas 78409. Defendant BTB may be cited by
serving its Registered Agent for service of process as follows: Capitol Corporate Services, Inc.,
800 Brazos, Suite 400, Austin, Texas 78701. Defendant BTB has been served and has appeared
by counsel of record in connection with this matter.
10. Defendant Sargeant Marine, Ltd. is a foreign, for-profit corporation organized and
existing under the laws of The Bahamas. Although Sargeant Marine maintains no office in the
State of Texas, is not registered to do business in the State of Texas and has no designated agent
for service of process in the State of Texas, Sargeant Marine has consented to jurisdiction within
the State of Texas by conducting business within this State including, but not limited to,
conducting business within the State of Texas with Defendants, making loans and undertaking
contractual obligations wholly or partially performable within the State of Texas and acquiescing
to the jurisdiction of the Courts of the State of Texas, as well as the transactions and occurrences
forming the subject matter of this litigation. Accordingly, and pursuant to §17.044 of the Texas
Civil Practice & Remedies Code, Sargeant Marine may be cited to appear by serving the Texas
Secretary of State as follows: Texas Secretary of State, State of Texas, Statutory Documents
41
Section — Citations Unit, P.O. Box 12079, Austin, Texas 78711-2076. The Texas Secretary of
State may then serve process by any lawful means upon the home office of Sargeant Marine as
follows: Sargeant Marine, Ltd., Shirlaw House, Shirley Street, Nassau, New Providence, The
Bahamas, P.O. Box SS-19084.
11. Additionally and in the alternative, and pursuant to Rule 108a of the Texas Rules
of Civil Procedure, Sargeant Marine may be served with process and cited to appear according to
the terms of the Hague Convention on the Service Abroad of Judicial & Extrajudicial Documents
("Hague Convention") by serving process upon the Central Authority of The Bahamas
designated for receipt of service of process as established pursuant to the Hague Convention as
follows: Attorney General, Legal Affairs Division, 7th Floor Post Office Building, East Hill
Street, P. 0. Box N 3007, Nassau, The Bahamas. Service of process by the Attorney General,
Legal Affairs Division should be directed to Sargeant Marine by Formal Service as follows:
Sargeant Marine, Ltd., Shirlaw House, Shirley Street, Nassau, New Providence, The Bahamas,
P.O. Box SS-19084.
12. This Court has subject matter jurisdiction over this matter as the amount in
controversy exceeds this Court's minimum jurisdictional requirements. This Court has personal
jurisdiction over Defendants Sargeant and Naba'a as each has engaged in business within the
State of Texas by, among other things, contracting with a Texas company and Texas residents,
with such contract to be performable, in whole or in part, within the State of Texas.
Furthermore, this Court has personal jurisdiction over Defendants Sargeant and Naba'a as each
has committed a tort or engaged in tortious activity — made the subject of this litigation — which
occurred, in whole or in part, within the State of Texas. This Court has personal jurisdiction over
Defendant BTB as it is currently a Texas limited liability company with offices located in
42
Corpus Christi, Texas and conducts business within the State of Texas. This Court has personal
jurisdiction over Defendants IOTC USA and Sargeant Marine because each has purposefully
availed itself of the privileges of conducting business within the State of Texas and established
minimum contacts sufficient to confer jurisdiction over it.
13. As a result, Defendants Sargeant, Naba'a, IOTC USA, BTB and Sargeant Marine
are all subject to this Court's exercise of personal jurisdiction over them by virtue of their
presence within the State of Texas and as a result of each Defendant's purposeful availment of
the rights and privileges of residing within and/or conducting business within the State of Texas.
Accordingly, this Court's exercise of jurisdiction over Defendants Sargeant, Naba'a, IOTC USA,
BTB and Sargeant Marine is proper, will not offend traditional notions of fair play and
substantial justice and is consistent with the constitutional requirements of due process.
14. Venue is proper in Nueces County, Texas pursuant to §15.002(a)(1) of the Texas
Civil Practice & Remedies Code because all or a substantial part of the events or omissions
giving rise to the claim occurred in Nueces County, Texas and pursuant to §15.002(a)(3) because
Defendant BTB's principal office in Texas is located within Nueces County, Texas.
IV.
FACTS COMMON TO ALL CAUSES OF ACTION
15. This proceeding has as its genesis a business venture beginning in 2004 and
involving Plaintiff, Defendant Sargeant and Defendant Naba' a, who, together, sought to bid for
and obtain U.S. Government fuel contracts to transport fuel through Jordan to Iraq in aid of the
American war effort. The three (3) did, in fact, obtain these contracts with significant help from
Plaintiff in securing authorization letters from the King of Jordan to transport the fuel across
Jordan. From 2004 through 2010, the contracts brought in total revenues of approximately $1.95
billion, with estimated profits of up to $210 million.
43
16. During the performance of the contracts, apparently believing his usefulness had
expired, Defendants Sargeant and Naba'a attempted to fraudulently exclude Plaintiff from the
profits of the business venture. Specifically, on June 23, 2004, IOTC JORDAN was awarded the
first in a series of fuel contracts from the United States Government to supply fuel to the U. S.
troops during the Gulf War ("Fuel Contracts"). On January 25, 2005, Sargeant and Abu Naba'a
formed International Oil Trading Company, LLC, a Florida corporation ("IOTC
USA"). Defendants Sargeant and Mr. Naba'a siphoned the profits of the business away from the
hands of Plaintiff and into their own pockets. In 2008, Plaintiff brought suit on these fraudulent
acts in Florida State Court.2 A Florida Jury found that IOTC USA was awarded subsequent Fuel
Contracts to the detriment of Plaintiff and the benefit of Defendants. IOTC USA is also a
Judgment Debtor.
17. On July 27, 2011, a Florida jury entered the following verdict:
VERDICT
We, the Jury, return Ole fallowing verdict:
1. Did Harry Sargeans, Ill, Mustafa Abu-Naha"' and International Oil Trading
Company, LLC commit common law fraud which canoed money damages to Mohammad Al-
Saleh?
Harry Sargeant, HI YESNO
Mustafa Abu-Naba'a YES NO
International Oil Trading Company, LLC YES V". NO
2
Cause No. 50 2008 CA 010187 XXXX MB AJ; Mohammad Anwar Farid Al-Saleh v. Harry Sargeant Ill, Mustafa
Abu-Naba 'a, and International Oil Trading Company, LLC; In the Circuit Court of the Fifteenth Judicial Circuit in
and for Palm Beach County, Florida.
44
2. Did Harry Sargeant, 111 and Mustafa Abu-Naha'a conspire to commit fraud
witch caused money damages to Mohammad Al-Satoh7
U your answer to question I above is NO as to all defendants, than you must skip
question 3 entirely, and proceed to question 4, If, however, your answer to question 1 is YES
as to any defendant, then please answer question 3.
3. Did Mustafa Abu-Nabasa and International Oil Trading Company, LLC aid and
abet the commission of fraud which caused money damages to Mohammad AI-Saida
Mustafa Abu-Nabaia, YES VI NO
International Oil Trading Company, LLC YES NO
4. Did Harry Sargeant, III and Mustafa Abu-Naho's breach a I duciary obligation
which caused money damages to Mohammad Al-Saleb'
Hany Sargent'', 111 YES ' NO
lvItenala Abu-Nabten YES 1,-.1 NO
5. Did Harry Sargeant, III and Mustafa Ahu-Piaba'a tortiously injure, and thereby
cause money damages to, Mohammad Al-Sitleh?
Harry Sargeant, 111 YES v." NO
Mustafa Abu-Nabata YES NO
6, Did Harry Sergeant, III and Mustafa Abu-Nabea breach the Unfair Competition
and Trade Secrets Law Number 15 of the Year 2000 under Jordanian Law which caused
money damages to Mohammad Al.Saleb?
Harry Sergeant, YES NO
Mustafa AbuNaba'a YES NO
If your answers to questions 1-6 are all NO (Including any skipped questions), then
your verdict is for Harty Sergeant, 111, Mustafa Abw.Naba'a, and international 011 Tradiag
Company, LLC and you should not proceed further except to date and sign this verdict form.
If any of your answers to questions 14 is YES, then please answer question 7 as appropriate.
7. What is the total amount of money damages sustained
by Mohammed AI-Saleh that was caused by defendant(s)7 a?. FM;Won,
SO SAY WE ALL, 1a day of July, 2011.
F EPERSON
AN,
—Toe DooiJ
45
See Exhibit D.
18. The Florida Court's Final Judgment, entered in accordance with the Jury's
Verdict above, provides in pertinent part:
WHEREAS, the above-captioned action came to trial before this Court on
July 11, 2011, to determine whether Defendants Sargeant, Abu-Naba'a and IOTC
USA were liable for money damages to Plaintiff Al-Saleh;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh
on Plaintiff's claim of common law fraud;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh
on Plaintiff's claim of conspiracy to commit fraud;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh
on Plaintiff's claim of aiding and abetting fraud;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh
on Plaintiff's claim of breach of fiduciary obligations under Jordanian law;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh
on Plaintiff's claim of tortious injury under Jordanian law;
WHEREAS, upon a jury trial, the jury found in favor of Plaintiff Al-Saleh
on Plaintiff's claim of breach of the Unfair Competition and Trade Secrets Law
Number 15 of the Year 2000 under Jordanian law;
WHEREAS, the jury awarded Plaintiff Al-Saleh damages in the amount of
$28,800,000.00 for all claims;
ORDERED AND ADJUDGED AS FOLLOWS:
A. Plaintiff does and recovers from the Defendants, jointly and severally,
judgment in the amount of $28,800,000.00, together with post judgment interest
at six percent (6%), nunc pro tunc to July 27, 2011, for all of which let execution
issue.
See Exhibit A (italics and underlining added).
19. Sargeant, Naba'a and IOTC USA (collectively sometimes referred to as
"Judgment Debtors") appealed and were unsuccessful.3 Following entry of the Judgment on the
Sargeant v. Al-Saleh, 120 So. 3d 86 (Fla. 4th DCA 2013), cert denied, 143 So. 3d 921 (Fla. 2014).
46
Verdict, the Florida Court entered two (2) further Judgments. On February 9, 2012, the Court
entered its Final Cost Judgment, in the amount of $85,489.97, with interest. On September 16,
2013, the Court further entered Supplemental Judgment awarding $3,484,753.92, with interest,
for pre judgment interest (collectively, the "Florida Judgments"). To date, the outstanding
amount of the final Florida Judgments, with accumulated interest, stands at over $38 million.
20. This was not the first time a court had entered a judgment finding that Defendant.
Sargeant and his entities had committed fraud. Specifically, following an arbitration in 2006,
Petroleos de Venezuela S.A. ("PDVSA") obtained an award against Trigeant (a company owned
by Defendant Sargeant and his family) for $17 million plus interest. Trigeant and PDVSA
simultaneously were locked in battle in another arbitration for over $30 million. Defendant
Sargeant obtained outside capital to deal with the first debt to PDVSA from American Capital
Financial Services, Inc. ("AMCAP"), which loaned $22 million to Trigeant. The loan was
memorialized by a note and lien on Trigeant's assets, an asphalt refinery located in Corpus
Christi, Texas (the "Refinery"). The AMCAP loan monies were used to pay the first arbitral
award to PDVSA.
21. But, the other PDVSA arbitration was looming and ultimately resulted in a $35
million award against Trigeant. In the interim, Trigeant had lost its major revenue stream and
had difficulty meeting its obligations under AMCAP's note. AMCAP put Trigeant on notice of
its default, and threatened to foreclose on the refinery. In late 2007, Defendant Sargeant entered
into negotiations with AMCAP to purchase the note and lien through a new company, Defendant
BTB, which was created on December 10, 2007. Defendant Sargeant's motive in acquiring the
note and lien through Defendant BTB was to free Trigeant from its obligation to pay its
47
creditors. His plan was to create a scenario for Defendant BTB to foreclose on the Refinery, thus
divesting Trigeant of ownership and frustrating Trigeant's creditor.
22. Defendant Sargeant's fraudulent machinations came to fruition — AMCAP sold
the note and lien to Defendant BTB, which then foreclosed on the Refinery. After it became
aware, PDVSA sought to undo Defendant BTB's foreclosure of the refinery in Corpus Christi in
Federal Court. The Federal Court, with Judge Nelva Gonzales Ramos presiding, ultimately
found that Defendants Sargeant and BTB had committed a fraud and entered judgment
accordingly.4
23. Thus, in the PDVSA Texas litigation, Defendant Sargeant and Defendant BTB
were found to be fraudulent actors. And again in respect of their conduct related to Plaintiff,
Defendants Sargeant and Naba'a, a Florida jury also found that to be true on July 27, 2011 when
it entered a verdict adjudicating Defendants Sargeant, Naba' a, and IOTC USA as fraudsters on
six separate counts of fraud and other tortious acts. Since then, Defendants Sargeant and Naba'a
have shielded themselves in layers of onshore and offshore corporate vehicles to put as much
space between themselves and their assets as possible, thereby frustrating Plaintiff's efforts to
satisfy his Judgments and effectively making a mockery of the Florida Court's Judgments.
24. Specifically, despite being adjudicated as fraudsters, Defendants Sargeant and
Naba'a have continued to hide their assets. What is more, Defendant Sargeant, in particular,
continues to frustrate the post judgment discovery process by lodging objections and protective
orders to nearly every discovery request propounded by Plaintiff, objecting to third-party
production of documents and bank records, and classifying every scrap of paper produced in this
proceeding as "highly confidential" — which, pursuant to the parties pre-trial Protective Order,
4 Findings of Fact and Conclusions of Law; Civil Action No. 2:09-cv-0038; PDVSA Petroleo S.A. V. Trigeant, Ltd.,
et al.; In the United States District Court for the Southern District of Texas, Corpus Christi Division (Gonzalez
Ramos, J.), a true and correct copy of which is attached hereto as Exhibit E.
48
grants unwarranted confidentiality to financial records and prohibits introduction of any
document to the Florida court absent Defendant's Sargeant's approval. Since 2011, Defendant
Sargeant has made a mockery of those post-judgment proceedings, preferring to spend millions
in legal fees rather than attend to his mounting debt under the Florida Court's Judgments. Having
utterly shirked his obligation to pay his Judgment debt, Defendant Sargeant has never made a
voluntary payment on the Judgments, of which the only partial satisfaction has come from forced
levy and execution of Defendant Sargeant's interest in Sargeant Bulktainers, Inc. and his
collections of guns, watches, and scooters — all of which totaled a mere $31,400 at judicial sale.
25. Notwithstanding, Defendant Sargeant has been described in the Palm Beach Post
as the "Gulf Stream billionaire" and Defendant Naba'a is known by the local press in the
Dominican Republic as "El Magnate del Asfalto" (the asphalt magnate). By claiming that he
holds all his personal assets either as tenants by the entireties with his wife or through his
bewildering array of corporate interests, Defendant Sargeant has managed to keep his corporate
jet, his luxury Palm Beach oceanfront condominium, and his $10 million mansion in Gulfstream,
Florida, safely outside the reach of his various creditors.
26. Indeed, despite their vast wealth, the Judgment Debtors claim they have nothing
with which to pay Plaintiff and have done everything to frustrate the ultimate orders of the
Florida Court — the Judgments. They have not been idle in their efforts to avoid payment — not
just to Plaintiff but to other creditors as well — even engaging in further fraudulent conduct to
make collection of the Judgments more difficult. Clearly, their intent, post-judgment, is to
attempt to achieve through their own efforts what they could not achieve before the Florida Jury
— an acquiescence or acceptance of their fraudulent conduct.
49
27. The background just provided with respect to Defendant Sargeant is intended to
advise this Court of the type of individual involved. Defendant Sargeant has been determined to
have engaged in fraudulent conduct through the judicial process and has clearly evidenced an
intent to avoid obligations imposed upon him as a consequence of the judicial process. This
Court, respectfully, should most assuredly recognize and take into account the absence of good
faith evidenced by Defendant Sargeant over the course of time when contemplating how best to
proceed.
28. Plaintiff has steadfastly attempted to have satisfied the Judgments awarded to
him. He has done so not only with respect to his procurement of such Judgments, but also with
respect to their satisfaction. Lawful means have always been employed by Plaintiff, thereby
evidencing his respect for the judicial process and the laws obtaining in the United States.
Unfortunately, Plaintiffs lawful measures have been thwarted by Defendants' unscrupulous
tactics.
29. Plaintiff has initiated these proceedings asking this Court to utilize its broad legal
and equitable powers to subject property in the hands of any person, including
Defendants/Judgment Debtors, to judicial sale and satisfaction of the Judgments. At issue in this
proceeding is Defendant Sargeant's membership interest in BTB and Defendant BTB itself, as
well as Defendant Sargeant's interest in Sargeant Marine and Defendant Sargeant Marine itself.
30. Defendant Sargeant's interests in Defendant BTB and Defendant Sargeant Marine
are valuable as Defendant BTB is imminently going to receive funds sufficient to satisfy the
Judgments. These funds are being distributed pursuant to a global Sargeant family Settlement in
50
a pending bankruptcy. 5 In the wake of that bankruptcy, the Settlement purports to resolve all
outstanding intra-family disputes, including several lawsuits filed by Defendant Sargeant,
individually, against his father, brothers, and their corporate entities.6 In exchange, the Sargeant
family executed mutual global releases of all claims between them and the parties have agreed to
pay approximately $52 million to Defendant BTB.
31. The two (2) issues most problematic here, and, indeed, which require this
Court's immediate attention and consideration with respect to this request for a TRO and
injunctive relief, are as follows: First, of the over $52 million Defendant BTB will receive,
Defendant Sargeant will receive no consideration from the Settlement notwithstanding the fact
that the Sargeant Settlement purports to release valuable claims Defendant Sargeant asserts on
his own behalf against his family.7 This is a blatant attempt to circumvent Plaintiff's reach and
further make a mockery of the Florida Court's Judgments. Second, Defendant BTB has
produced a "Zero Coupon Promissory Note" ("Promissory Note") purportedly obligating
Defendant BTB to pay to Defendant Sargeant Marine the amount of $55,580,798.96, pre-payable
at any time prior to the Promissory Note's maturity date.8 The fraudulent character of the
Promissory Note, like the sham consideration in the Sargeant Settlement above, is nothing more
than another attempt by Defendant Sargeant to avoid satisfaction of the Florida Judgments
entered against him As demonstrated, Plaintiff has asserted meritorious claims (i) against
Defendant Sargeant, (ii) against his membership interest in Defendant BTB, (iii) against
5 See Sargeant Settlement Agreement, dated April 18, 2015 ("Settlement"), attached as Exhibit F, entered in
connection with Case No. 14-29027-EPK; In re: Trigeant Holdings, Ltd.; In the United States Bankruptcy Court for
the Southern District of Florida.
6 See Settlement, Ex. F, ¶ 2.11 (defining "Pending Litigation").
7 See Settlement, Ex. F, 114.1.
8 A true and correct copy of the Zero Coupon Promissory Note is attached hereto as Exhibit G.
51
Defendant BTB itself, (iv) against his interest in Defendant Sargeant Marine, and (v) against
Defendant Sargeant Marine itself.
32. The circumstances here require the entry of a TRO and, ultimately, a Temporary
Injunction, until such time as this Court can determine the merits of these claims. What this
Court shall learn is that these funds, although being paid to Defendant BTB, are entirely within
Defendant Sargeant's control inasmuch as Defendant BTB and Defendant Sargeant Marine are
both merely the alter egos of Defendant Sargeant. Indeed, the Plan of Reorganization filed in the
Bankruptcy Court provides that the distributions to Defendant BTB "shall be made by wire
transfer pursuant to instructions provided the appropriate Harry Party no later than 12:00 p.m.
(noon) one (1) Business Day before the Effective Date" (emphasis added). Harry Sargeant and
BTB's lawyers have refused to provide this information to Mr. Al Saleh on multiple occasions.
33. The Defendants/Judgment Debtors are fraudsters. Fraudsters do not change their
stripes. Without serious judicial intervention at this stage, these recalcitrant
Defendants/Judgment Debtors will continue to frustrate valid collection efforts, waste judicial
labor and resources, and continue to make a mockery of the Florida Judgments.
V.
CAUSES OF ACTION
34. Plaintiff incorporates all of the proceeding paragraphs in each of the following
causes of action as though set forth in full herein. Each of the following causes of action are
asserted in the alternative and without waiving any individual cause of action.
A. TURNOVER IN SATISFACTION OF JUDGMENTS.
35. Pursuant to Texas Civil Practice & Remedies Code §31.002, et seq., Plaintiff
seeks injunctive relief and an Order from this Court compelling the turnover of property owned
52
by Defendants within the State of Texas, including present or future rights to property, in
satisfaction of the Florida Judgments in favor of Plaintiff.
36. All as more fully described above, Plaintiff is a Judgment Creditor by virtue of
three (3) Judgments entered by a Florida Court in his favor and against Defendants Sargeant,
Naba'a and IOTC USA. In particular, the Florida Court has issued three (3) Judgments in
connection with Case No. 50-2008-CA-0101870XXXX-MB-AJ; Mohammad Anwar Farid Al-
Saleh v. Harry Sargeant III, Mustafa Abu-Naba'a, and International Oil Trading Company,
LLC; In the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida.
In particular, the Florida Court entered the first Judgment, the "Judgment on the Verdict," on
September 19, 2011 in the amount of $28,800,000.00, together with post-judgment interest at the
annual rate of six percent (6%) entered nunc pro tunc to July 27, 2011. The Florida Court
entered the second judgment, the Final Cost Judgment," on February 9, 2012 in the amount of
$85,489.97, together with post-judgment interest at the annual rate of four and three quarters
percent (4.75%) entered nunc pro tunc to July 27, 2011. The Florida Court entered the third
Judgment, the "Supplemental and Amended Supplemental Judgment Awarding Pre-Judgment
Interest," on September 16, 2013 in the amount of $3,484,753.92, together with post-judgment
interest at the annual rate of six percent (6%) entered nunc pro tunc to July 27, 2011.
37. At the time of filing of this action, the outstanding amount of the Florida
Judgments, which are final and fully enforceable, with accumulated interest, is in excess of
$38,000,000.00.
38. Plaintiff domesticated the Florida Judgments in the State of Texas with the
commencement of this matter and upon the filing of his Omnibus Affidavit in Support of
Enforcement of Foreign Judgments. The three (3) Florida Judgments are fully final and
53
enforceable within this State pursuant to the Texas Uniform Enforcement of Foreign Judgments
Act, Texas Civil Practice & Remedies Code §35.001, et seq.
39. All as more fully described above and in further detail below, Defendants BTB
and Sargeant Marine are entities in which Defendant Sargeant holds complete and sole
ownership (Defendant BTB) or holds fifty percent (50%) ownership (Defendant Sargeant
Marine) with Defendant Naba' a holding the remainder. Defendant Sargeant created and has
utilized Defendants BTB and Sargeant Marine as mere tools or business conduits to such an
extent that Defendants BTB and Sargeant Marine are nothing more than the alter egos of
Defendant Sargeant.
40. As also more fully described above, Defendant BTB, and by extension and reason
of the unity of interests between them, Defendants Sargeant and Sargeant Marine too, are set to
receive approximately $52,000,000.00 in settlement of certain pending litigation and distributed
from a pending bankruptcy involving other Sargeant-family entities. Such settlement proceeds
are sufficient to satisfy the Florida Judgments in favor of Plaintiff, as domesticated and
enforceable within the State of Texas, as against Defendant Sargeant, and his alter egos,
Defendants BTB and Sargeant Marine. Such settlement proceeds are not exempt from
attachment, execution or seizure for satisfaction of the Florida Judgments.
41. Given the nature of the property in the form of the settlement proceeds to be
distributed from the pending bankruptcy involving another Sargeant-family entity, such property
cannot be readily attached or levied on by ordinary legal process. Further, the relevant facts set
forth above demonstrate Defendant Sargeant has, for many years, utilized a litany of shell
corporations and other devices to avoid payment in satisfaction of the Florida Judgments in favor
54
of Plaintiff. Defendant Sargeant has, on more than one occasion and by more than one court,
been found to have committed acts of fraud in order to deceive creditors.
42. As a result, Plaintiff respectfully requests that the Court Order Defendants
Sargeant, Naba'a, IOTC USA, BTB and Sargeant Marine to turn over the property identified
herein, together with all documents and records related to the property, to the Sheriff of Nueces
County, Texas, for execution and application of the proceeds to the satisfaction of Plaintiff's
Florida Judgments. In addition and in the alternative, Plaintiff asks the Court appoint a
disinterested, qualified third person as receiver of the property and Order Defendant to turn over
the property and the rights to receive such property, as well as all documents and records relating
to the property, to the receiver. The Court should authorize and empower the receiver to seize or
otherwise take possession and control of the property to apply the property to satisfaction of
Plaintiff's Florida Judgments.
B. ACTION ON FOREIGN JUDGMENTS.
43. Pursuant to Texas Civil Practice & Remedies Code §16.066, Plaintiff hereby
brings an action upon foreign judgment as against Defendants Sargeant, Naba'a, IOTC USA,
BTB and Sargeant Marine. Plaintiff domesticated the Florida Judgments in the State of Texas
with the filing of Case No. 2014 DCV-5860-G; Mohammad Answer Farid Al-Saleh v. Harry
Sargeant III, Mustafa Abu Naba'a and International Oil Trading Company, LLC; In the 319th
Judicial District Court for Nueces County, Texas. The three (3) Florida Judgments are entitled to
full faith and credit by this Texas Court and are fully final and enforceable within this State.
44. Accordingly, Plaintiff hereby requests that the Court issue all Orders, Writs or
other measures by which execution upon the Florida Judgments may be had in favor of Plaintiff
and as against Defendants Sargeant, BTB and Sargeant Marine.
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C. VIOLATION OF THE UNIFORM FRAUDULENT TRANSFERS ACT.
45. All as set forth above in further detail, the Florida Court has issued three (3)
Judgments in connection with Case No. 50-2008-CA-0101870XXXX-MB-AJ; Mohammad
Anwar Farid Al-Saleh v. Harry Sargeant III, Mustafa Abu-Naba'a, and International Oil
Trading Company, LLC; In the Circuit Court of the Fifteenth Judicial Circuit in and for Palm
Beach County, Florida. In particular, the Florida Court entered the first Judgment, the
"Judgment on the Verdict," on September 19, 2011 in the amount of $28,800,000.00, together
with post-judgment interest at the annual rate of six percent (6%) entered nunc pro tunc to July
27, 2011. The Florida Court entered the second judgment, the Final Cost Judgment," on
February 9, 2012 in the amount of $85,489.97, together with post-judgment interest at the annual
rate of four and three quarters percent (4.75%) entered nunc pro tunc to July 27, 2011. The
Florida Court entered the third Judgment, the "Supplemental and Amended Supplemental
Judgment Awarding Pre-Judgment Interest," on September 16, 2013 in the amount of
$3,484,753.92, together with post-judgment interest at the annual rate of six percent (6%)
entered nunc pro tunc to July 27, 2011.
46. Plaintiff domesticated the three (3) Florida Judgments in the State of Texas with
the filing of its Omnibus Affidavit in Support of Enforcement of Foreign Judgments in this
matter. The three (3) Florida Judgments are fully final and enforceable within this State pursuant
to the Texas Uniform Enforcement of Foreign Judgments Act, Texas Civil Practice & Remedies
Code §35.001, et seq.
47. The total amount of the Judgments is in excess of $38,000,000.00, which
continues to increase due to the application of post judgment interest in the amounts set forth in
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the Judgments themselves. As of the date of the filing of this action, the Judgments remain due
and owing to Plaintiff and unpaid by Defendants Sargeant, Naba' a and IOTC USA.
48. Defendant BTB, and by extension Defendant Sargeant, is expected to receive, on
June 8, 2015, in excess of $52,000,000.00 in payment resulting from the sale of the Corpus
Christi Refinery in connection with Trigeant's bankruptcy pending in Florida. By virtue of his
ownership in and dominion and control over Defendant BTB as more fully described above and
as made the basis of Plaintiffs Vicarious Liability claim asserted below, Defendant Sargeant is
the ultimate beneficiary of Defendant BTB's receipt of such funds. However, Defendant BTB,
as the alter ego of Defendant Sargeant, has or is in the process of transferring such monies with
the intent to delay, hinder and defraud Plaintiff. Defendant BTB, at the direction and instruction
of Defendant Sargeant, has or is in the process of transferring such monies with the intent of
preventing his creditors, including Plaintiff, from obtaining satisfaction of the Florida Judgments
as described above.
49. Plaintiff would further show and demonstrate that such transfers were or are being
made despite a lack of adequate consideration and/or without receiving a reasonably equivalent
value as defined in Texas Business & Commerce Code §24.001, et seq. In particular, there is no
evidence of a service or goods provided by Defendant Sargeant Marine to Defendant BTB
whereby Defendant BTB would have agreed to an arm's length transaction in exchange for such
services or goods totaling more than $55,500,000.00 as specified in the Zero Coupon Promissory
Note between Defendants BTB and Sargeant Marine. Furthermore, Defendant BTB's agreement
to incur debts in excess of $55,500,000.00 as per the Zero Coupon Promissory Note results in the
situation where such debts incurred by Defendant BTB are beyond its ability to pay.
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50. Moreover, Plaintiff would further show and demonstrate that such transfers were
or are being made and constitute transfers to "insiders" as defined in Texas Business &
Commerce Code §24.001, et seq. In particular, the transfers between Defendants BTB and
Sargeant Marine are being made at the direction and control of Defendant Sargeant, who is the
sole and singular member of Defendant BTB, and who is a fifty percent (50%) owner of
Sargeant Marine, with the remaining fifty percent (50%) ownership in Sargeant Marine resting
with Defendant Naba' a.
51. Defendant Sargeant Marine has or is in the process of receiving such monies
described above from Defendants Sargeant and BTB, with notice of both Defendants' intent to
delay, hinder and defraud Plaintiff. In this connection, Plaintiff alleges and contends that
Defendants Sargeant, BTB and Sargeant Marine are inextricably interrelated, with Defendants
BTB and Sargeant Marine constituting the alter egos of Defendant Sargeant. Defendants have
personal knowledge that Defendant BTB is receiving the settlement proceeds out of the
bankruptcy of another Sargeant-family entity, Trigeant, and that Defendant Sargeant intends to
hide the money from satisfaction of the Florida Judgments in favor of Plaintiff.
52. As a result of the fraudulent transfers identified above and as made actionable
under the Uniform Fraudulent Transfers Act ("UFTA") pursuant to Texas Business & Commerce
Code §24.001, et seq., Plaintiff has been damaged well in excess of the minimum jurisdictional
limits of this Court. Plaintiff is entitled to a declaration that the transfer is void to the extent
necessary to satisfy Plaintiff's Florida Judgments as against Defendant Sargeant and his alter
egos, Defendants BTB and Sargeant Marine. Plaintiff further seeks an injunction against
Defendants Sargeant, BTB and Sargeant Marine to enjoin further disposition of the transferred
assets and the appointment of a receiver to take charge of the transferred assets that they may be
58
applied in satisfaction of the Florida Judgments, and for any other and further relief the
circumstances may require.
D. FRAUD AND CONSPIRACY TO COMMIT FRAUD.
53. Defendants' representations and omissions made to Plaintiff as described herein
were material, and Defendants knew them to be false at the time they were made. Defendants
intended that Plaintiff act on these false and material misrepresentations or omissions. By so
proceeding, Plaintiff did, in fact, rely upon these false and material misrepresentations and/or
omissions, which have caused Plaintiff injury and damages.
54. Additionally and in the alternative, Defendants were a member of a combination
of persons, with the object of their combination being the unlawful purpose of defrauding
Plaintiff and illegally delaying, hindering and defrauding Plaintiff's various attempts to satisfy
the Florida Judgments against Defendants/Judgment Debtors. Defendants, as members of this
combination, had a meeting of the minds on the object and purpose of their combination, and one
or more of the members committed unlawful, overt acts to further the object or course of action
by, among other things, defrauding Plaintiff and frustrating enforcement and execution of the
Florida Judgments.
55. Defendants' fraudulent acts, fraudulent inducement and malicious conduct have
caused Plaintiff to incur damages as described herein. Accordingly, Plaintiff seeks unliquidated
damages within the jurisdictional limits of this Court, including its damages suffered as a direct
and proximate result of Defendants' fraudulent acts as made necessary by this filing.
E. VICARIOUS LIABILITY AND DISREGARD OF CORPORATE FORM.
56. Defendant Sargeant organized and operated Defendants BTB and Sargeant
Marine, of which Defendant is the sole member and a fifty percent (50%) owner, respectively, as
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mere tools or business conduits to such an extent that Defendants BTB and Sargeant Marine are
nothing more than the "alter ego" of Defendant Sargeant.
57. There exists a unity of financial interest, ownership and control by Defendant
Sargeant in the organization and operation of Defendants BTB and Sargeant Marine. Defendants
have abused such unity between and amongst themselves such that the separateness of the
entities has ceased and the corporate form has been disregarded. Such acts and omissions are
evidenced by and include, but are not limited to, (i) the degree to which individual and corporate
property and assets are not kept separate but are, instead, intermingled; (ii) the ownership of
Defendants BTB and Sargeant Marine by Defendant Sargeant and control exerted by Defendant
Sargeant over the operations of Defendants BTB and Sargeant Marine creates a commonality
amongst them; (iii) the comingling funds between Defendant Sargeant and Defendants BTB and
Sargeant Marine; and (iv) representations that Defendants BTB and Sargeant Marine and
Defendant Sargeant will alternatively back the other financially, including the assumption of
debts and obligations of one on behalf of the other, among others.
58. As a result of these acts and omissions whereby Defendants BTB and Sargeant
Marine have become a mere tool or business conduit of Defendant Sargeant, a disregard of the
corporate form is necessary to as to prevent an injustice against Plaintiff should only the alter
egos be held liable while the principal is allowed to evade liability.
59. Additionally and in the alternative, the corporate form between Defendant
Sargeant and Defendants BTB and Sargeant Marine were used by Defendants collectively to
evade existing legal obligations — the Florida Judgments and the Agreed Charging Order entered
by this Court. Defendant Sargeant, by express representations and actions, obligated Defendants
BTB and Sargeant Marine to undertake responsibility for his obligations, and him for Defendants
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BTB and Sargeant Marine. As a result, the corporate veil existing between Defendant Sargeant
and Defendants BTB and Sargeant Marine, if any, should be pierced so that Defendants
collectively are held liable for the obligations of the other.
60. Additionally and further in the alternative, Defendant Sargeant caused Defendants
BTB and Sargeant Marine to be used for the purpose of perpetrating an actual fraud upon
Plaintiff as described above. Defendant Sargeant and Defendants BTB and Sargeant Marine
perpetrated an actual fraud on Plaintiff primarily for the Defendants' direct benefit.
Accordingly, the corporate veil existing between Defendant Sargeant and Defendants BTB and
Sargeant Marine, if any, should be pierced so that Defendants collectively are held liable for the
obligations of the other.
61. Additionally and further in the alternative, Defendant Sargeant and Defendants
BTB and Sargeant Marine intentionally participated in a joint undertaking with a common
business or pecuniary purpose. Both Defendant Sargeant and Defendants BTB and Sargeant
Marine had an agreement, whether express or implied, with a common purpose to be carried out
by Defendants collectively and as against Plaintiff. Additionally, Defendant Sargeant and
Defendants BTB and Sargeant Marine enjoyed a community of pecuniary interest in their
common purpose, and each enjoyed an equal right to control and direct the joint enterprise to the
detriment of Plaintiff. While participating in such joint enterprise, and while within the scope of
such joint enterprise, Defendant Sargeant and Defendants BTB and Sargeant Marine committed
acts and/or omissions of fraud and fraudulent inducement against Plaintiff. As a result,
Defendant Sargeant and Defendants BTB and Sargeant Marine are vicariously liable for the
tortious conduct of the other as against Plaintiff made the basis of this litigation.
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F. APPLICATION FOR APPOINTMENT OF RECEIVER.
62. Pursuant to Texas Civil Practice & Remedies Code §64.001, et seq. and under
general equitable principles, Plaintiff respectfully requests the appointment of a Receiver to take
possession of the property at issue. Appointment of a Receiver is appropriate under Texas Civil
Practice & Remedies Code §64.001(a)(2) as Plaintiff is a Judgment Creditor over
Defendants/Judgment Debtors Sargeant, Naba'a and IOTC USA, and as further alleged and
described in particular detail herein, Defendants BTB and Sargeant Marine are mere the alter
egos of Defendant Sargeant. Additionally and in the alternative, appointment of a Receiver is
appropriate in equity and under Texas Civil Practice & Remedies Code §64.001(a)(6) as such
relief is ancillary to Plaintiff's other, independent causes of action against Defendants and no less
onerous remedy could afford Plaintiff the needed protection sought.
63. Additionally and further in the alternative, appointment of a Receiver is
appropriate under Texas Civil Practice & Remedies Code §31.002 in connection with a turnover
action in order to satisfy a judgment. In particular, Defendants/Judgment Debtors own property
that cannot be readily attached or levied upon by ordinary legal process but is not exempt from
attachment, execution or seizure for the satisfaction of the Judgments. Notably, Texas law
expressly allows for the appointment of a Receiver in connection with a turnover action without
regard to satisfaction of the traditional requirements for such an appointment. See Childre v.
Great Southwest Life Ins. Co., 700 S.W.2d 284, 288 (Tex. App.—Dallas 1985, no writ);
Hennigan v. Hennigan, 666 S.W.2d 322, 323 (Tex. App.—Houston [14th Dist.] 1984, writ ref d
n.r.e.). Furthermore, a small amount is typically sufficient for the receivership bond when such
appointment is made in connection with a turnover action. Childre, 700 S.W.2d at 289.
62
64. Moreover, appointment of a Receiver without notice to Defendants is necessary
inasmuch as Plaintiff would suffer material injury and prejudice by the delay necessary to
provide notice of appointment. In particular, the ex parte appointment of a Receiver is justified
because the delay necessary to effectuate notice of the application for appointment would lead to
imminent and irreparable injury to the property sought to be held by the receiver and/or would
likely jeopardize the delivery of such property. Additionally, Plaintiff alleges and contends the
property sought to be held by the Receiver is about to be removed beyond the jurisdictional
limits of this Court and across international borders by transference to Defendant Sargeant
Marine, which is a corporation organized and existing in The Bahamas.
65. The status of the property cannot be maintained and the rights of Plaintiff cannot
be protected by any remedy other than the ex parte appointment of a Receiver. In particular, the
issuance of injunctive relief in the form of a Temporary Restraining Order ("TRO") and
subsequent Temporary Injunction ("TI") are inadequate by themselves as such Orders do not
take custody of funds available to satisfy Plaintiff's Florida Judgments that are within the hands
of Defendant BTB and, by extension, Defendants Sargeant and Sargeant Marine. As evidenced
by (i) the great lengths to which Defendants/Judgment Debtors will go to avoid satisfaction of
the Florida Judgments, and (ii) the Corpus Christi Federal Court's Findings of Fact and
Conclusions of Law and resulting Final Judgment, Defendant Sargeant in particular acts as if he
were immune from the mandates of any Court and the Rule of Law of any State. Given
Defendants/Judgment Debtors' past acts taken directly and expressly in avoidance of the Florida
Judgments, a TRO or TI issued in connection with this matter will not adequately protect
Plaintiff's right to the funds at issue and forming the subject of this action. Defendants/Judgment
Debtors have already and will continue in the future, no doubt, to spend, waste, secret, hide, or
63
otherwise remove the subject funds from the jurisdiction of this Court or any other within the
United States to avoid satisfaction of the Florida Judgments.
66. As a result, Plaintiff will, in all reasonable probability, prevail as against
Defendants. The property sought to be held by the Receiver has a value of $40,000,000.00, and
is in the form of funds to be paid to Defendant BTB imminently. Defendant BTB has a right to
the proceeds it is set to receive, and should it transfer such proceeds to Defendant Sargeant
Marine, as an insider as described above, with the intent to delay, hinder and defraud, such
transfer constitutes a fraudulent transfer. The proceeds will rest with Trigeant, LLC and/or
Trigeant Holdings, Ltd., and will come to Defendant BTB as payments made to
Defendants/Judgment Debtors stemming from the Trigeant bankruptcy. As provided above,
such property is in danger of being lost or removed such that a Receiver is required in order to
protect and conserve the property in question during the pendency of this action and to protect
the interests of Plaintiff in the property.
67. Accordingly, Plaintiff requests that a Receiver be appointed and given the
following powers in order to protect the property and the parties' interests in it: (i) Require
Defendant BTB to instruct Trigeant, LLC and/or Trigeant Holdings, Ltd.'s counsel under the
Settlement Agreement to pay the proceeds to Defendant BTB's account at Comerica Bank; (ii)
Take charge of the property described herein, insure it against hazards and risks, and attend to its
periodic maintenance; (iii) Take possession of and receive from Comerica Bank any money on
deposit in the financial institution to the credit of Defendant BTB, and the receipt of the receiver
for the funds will discharge Comerica Bank from further responsibility for accounting to
Defendant BTB for funds for which the receiver has given a receipt; and (iv) Take all other
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actions to preserve the property described herein and of which possession is taken as may be
required and as further directed by this Court.
VI.
DAMAGES
68. As a direct and proximate result of Defendants' conduct as described herein,
Plaintiff has suffered damages as follows:
a) Actual damages within the jurisdictional limits of the Court including, but not
limited to, amounts due under the contract at issue;
b) General damages;
c) Out-of-pocket damages;
d) Benefit-of-the-bargain damages;
e) Special damages;
f) Incidental and consequential damages;
g) Prejudgment interest as provided by law;
h) Post-judgment interest at the maximum rate provided by law;
i) Costs of Court;
j) Attorneys' fees; and
k) All such further and other relief, whether at law or in equity, to which it may be
justly entitled.
VII.
ATTORNEYS' FEES AND COSTS
69. Pursuant to Texas Business & Commerce Code §24.001, et seq., Plaintiff seeks an
award of Costs of Court and its reasonable and necessary attorneys' fees incurred in connection
with its claims under the UFTA. Additionally, and pursuant to Texas Civil Practice & Remedies
Code §31.002, et seq., Plaintiff seeks an award of Costs of Court and its reasonable and
necessary attorneys' fees incurred in connection with this matter and in seeking turnover of the
property owned by Defendants within the State of Texas.
VIII.
CONDITIONS PRECEDENT
70. All conditions precedent to Plaintiff's claims for relief have occurred and/or have
been satisfied, performed, excused or waived.
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IX.
APPLICATION FOR TEMPORARY RESTRAINING ORDER
AND INJUNCTIVE RELIEF
71. Defendants Sargeant, BTB and Sargeant Marine have threatened irreparable harm
to Plaintiff's property interests and rights by, among other things, engaging in fraudulent acts and
other fraudulent transfers with the intent to delay, hinder and defraud Plaintiff in connection with
his efforts to satisfy the Florida Judgments rendered in his favor. In addition, Defendants have
engaged in other fraudulent and evasive conduct in order to avoid satisfaction of the Florida
Judgments and in order to dissipate, secrete, waste, deplete, secret or otherwise property and
assets otherwise available for execution and satisfaction of the Florida Judgments.
72. Plaintiff has alleged a cause of action against Defendants, and as indicated in this
Petition and in his Unsworn Declaration subject to penalty of perjury, which is attached hereto as
Exhibit H and incorporated by reference as though set forth fully herein, Plaintiff has shown (i)
a probable right of recovery and likelihood of success on the merits, (ii) that Plaintiff will suffer
imminent, irreparable harm without the Court's intervention, and (iii) that Plaintiff has no
adequate remedy at law. Plaintiff has a satisfactorily demonstrated the elements of a cause of
action against Defendant BTB and a probable right of recover and likelihood of success on the
merits by virtue of, among other things, the Florida Judgments in Plaintiff's favor, which he
seeks to be enforced by this action. Further, Plaintiff has demonstrated herein that he will suffer
imminent, irreparable harm without the Court's intervention inasmuch as Plaintiff has learned
the property and assets sufficient to satisfy the Florida Judgment (e.g., the settlement proceeds
payable facially to Defendant BTB) will be dispersed on Friday, June 5, 2015 and will be moved,
dissipated or otherwise transferred beyond the jurisdictional reach of this or any other United
States Court if immediate action is not taken to enjoin and restrain such conduct.
66
73. Thus, as a direct and proximate result of Defendants' wrongful conduct as alleged
in this Petition, Plaintiff has suffered and will continue imminent injury that will be irreparable
and for which no remedy at law exists without the protections of a Temporary Restraining Order
("TRO") and injunctive relief Plaintiff is willing to post the necessary and reasonable bond to
facilitate the injunctive relief requested.
74. The issuance of injunctive relief in the form of a TRO and subsequent Temporary
Injunction ("TI") is required in order to prevent imminent and irreparable harm to Plaintiff As
noted elsewhere herein and as evidenced by (i) the great lengths to which Defendants/Judgment
Debtors will go to avoid satisfaction of the Florida Judgments, and (ii) the Corpus Christi Federal
Court's Findings of Fact and Conclusions of Law and resulting Final Judgment, Defendant
Sargeant in particular acts as if he were immune from the mandates of any Court and the Rule of
Law of any State. Given Defendants' past acts taken directly and expressly in avoidance of the
Florida Judgments, a TRO or TI must be issued to protect Plaintiff's right to the funds at issue
and forming the subject of this action and the Florida action. Unless specifically enjoined and
restrained, Defendants have already and will continue in the future, no doubt, to spend, waste,
secret, hide, or otherwise remove the subject funds from the jurisdiction of this Court or any
other within the United States to avoid satisfaction of the Florida Judgments. Such conduct is
wrongful because such conduct is intended solely to avoid the satisfaction of the Florida
Judgments in Plaintiff's favor and to otherwise avoid usual legal process in execution upon such
Judgments. Plaintiff has and will continue to be damaged and injured by Defendants' wrongful
conduct as described in further detail above. Defendants' actions have caused Plaintiff damages
in an amount within the jurisdictional limits of this Court.
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75. Plaintiff requires injunctive relief to prevent Defendants Sargeant, BTB and
Sargeant Marine from further spending, dissipating, depleting, secreting or otherwise moving,
transferring or burdening the property and proceeds at issue. In particular, Plaintiff requires
injunctive relief as to (i) To the extent not already done, Defendant BTB shall instruct Trigeant,
LLC's and/or Trigeant, Ltd.'s counsel to direct payment of the settlement proceeds into
Defendant BTB's account at Comerica Bank; (ii) To prevent Defendant BTB from transferring
any amounts sufficient to satisfy the Florida Judgments in Plaintiffs favor; (iii) To prevent
Defendant Sargeant Marine from receiving any of these funds in purported satisfaction of the
fraudulently procured Zero Coupon Promissory Note; (iv) To prevent Defendant Sargeant
Marine from accepting, receiving, undertaking, or otherwise acquiescing in the transfer of such
amounts sufficient to satisfy the Florida Judgments in Plaintiffs favor from Defendant BTB; and
(v) To prevent Defendant Sargeant from instructing, ordering, approving, authorizing or
otherwise empowering Defendant BTB from transferring the such amounts sufficient to satisfy
the Florida Judgments in Plaintiffs favor to Defendant Sargeant Marine.
76. With respect to the timing of the issuance of the requested TRO and any
subsequent hearing on a TI, Plaintiff advises the Court that similar undertakings and issues are
simultaneously before the Florida Court which originally issued the Florida Judgments.9 At a
hearing before the Florida Court on Monday, June 1, 2015, the Florida Court indicated it was not
able to consider the particular injunctive relief requested by Plaintiff in that matter this week due
to scheduling issues related to an ongoing jury trial, but will, likely, address the substantive
issues at hearing in the future. However, as the funding of the settlement proceeds from the
other Sargeant-family related business will occur on Friday, June 5, 2015, a hearing after June 5,
9
Cause No. 50 2008 CA 010187 XXXX MB AJ; Mohammad Anwar Farid Al-Saleh v. Harry Sargeant 111, Mustafa
Abu-Naba'a, and International Oil Trading Company, LLC; In the Circuit Court of the Fifteenth Judicial Circuit in
and for Palm Beach County, Florida.
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2015 is not sufficient to protect Plaintiff from the imminent and irreparable harm he will
certainly face in the interim period before the Florida Court acts. As a result, Plaintiff is
requesting this Court enter and issue ex parte a TRO to hold the status quo by enjoining and
restraining the conduct addressed herein only for sufficient time to allow the Florida Court to
consider the substantive issues at a hearing on the Florida injunction motion, at which time
Plaintiff would agree to participate in a TI hearing to determine whether or not the TRO should
be extended through resolution of this litigation.
77. Thus, the only adequate, effective and complete relief to Plaintiff is to restrain
Defendants from engaging in, and/or further engaging in, certain proscribed conduct as set forth
below pursuant to Rule 680, et seq., of the Texas Rules of Civil Procedure, the Texas Civil
Practice & Remedies Code §31.002, and Texas Civil Practice & Remedies Code §65.001, et seq.
In order to preserve the status quo during the pendency of this action, Plaintiff seeks a TRO, and
on hearing, a Temporary and Permanent Injunction ordering and immediately enjoining and
restraining Defendants Sargeant, BTB and Sargeant Marine, including its agents, servants,
employees, independent contractors, attorneys, representatives, successors in interest and those
persons or entities in active concert or participation with them (collectively "Restrained Parties")
for, inter alia, as follows:
a. Defendants Sargeant and BTB shall direct $40,000,000.00 of the settlement
proceeds received from the pending bankruptcy to be disbursed pursuant to the
Settlement and to be deposited in BTB's Comerica Bank account ending in
xx8591.
b. Until further Order of this Court, the Restrained Parties, including Defendants
Sargeant, BTB and Sargeant Marine, are restrained and enjoined from spending,
wasting, secreting, hiding, removing, using, pledging, encumbering, transferring
or otherwise disposing of the funds described immediately above.
c. Until further Order of this Court, Defendant BTB is enjoined and restrained from
transferring such amounts sufficient to satisfy the Florida Judgments in Plaintiffs
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favor to Defendant Sargeant Marine in purported satisfaction of the fraudulently
procured Zero Coupon Promissory Note.
d. Until further Order of this Court, Defendant Sargeant is enjoined and restrained
from instructing, ordering, approving, authorizing or otherwise empowering
Defendant BTB from transferring the such amounts sufficient to satisfy the
Florida Judgments in Plaintiff's favor to Defendant Sargeant Marine.
e. Until further Order of this Court, Defendant Sargeant Marine is enjoined and
restrained from accepting, receiving, undertaking, or otherwise acquiescing in the
transfer of such amounts sufficient to satisfy the Florida Judgments in Plaintiff s
favor from Defendant BTB.
f. Enjoining the Restrained Parties from the destruction or deletion of any
documents, evidence or record, electronic or otherwise, that relates to any of the
matters implicated by this lawsuit or pertaining to Plaintiff including, but not
limited to, all hard drives, backups, archives, and other possible sources of stored
data, metadata or information.
X.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Mohammad Anwar Farid Al Saleh
respectfully requests that Defendants Harry Sargeant III, BTB Refining, LLC and Sargeant
Marine, Ltd. be cited to appear and answer herein; that upon trial of this Cause, the Court enter
judgment in favor of Plaintiff and as against Defendants Harry Sargeant III, BTB Refining, LLC
and Sargeant Marine, Ltd. for the damages sought herein, whether actual, general, special, direct,
indirect and/or consequential, in an amount in excess of the minimum jurisdictional limits of this
Court; that the Court grant this Application for Temporary Restraining Order and Injunctive
Relief, enjoining and restraining the Restrained Parties identified herein from the acts and
conduct further identified herein; that the Court grant this Request for Appointment of Receiver
to take possession and custody of the property at issue in order that it be applied to satisfy the
Florida Judgments in favor of Plaintiff; and that Plaintiff be granted any and all other further
relief, whether at law or in equity, to which he may show himself justly entitled.
70
Respectfully submitted,
MUNSCH HARDT KOPF & HARR, P.C.
By: /s/ Daniel D. Pipitone
Daniel D. Pipitone
State Bar No.
Kenneth W. Bullock, II
State Bar No. 24055227
Pennzoil Place
700 Milam, Suite 2700
Houston, Texas 77002
Telephone:(713) 222-4061
Facsimile: (713) 222-1475
dpipitone(&,munsch.com
kbullock@munsch.com
ATTORNEYS FOR PLAINTIFF
MOHAMMAD ANWAR FARID AL-SALEH
6160793v.1 15734/1
71
CERTIFICATE WITH REGARD TO
NOTICE OF APPLICATION FOR TEMPORARY RESTRAINING ORDER
The undersigned counsel for Plaintiff, Mohammad Anwar Farid A1-Saleh, does hereby
certify in support of Plaintiffs Verified Amended Petition, Third-Party Petition, Application for
Temporary Restraining Order and Injunctive Relief and Request for Appointment of Receiver,
that it is not necessary to provide Defendants Harry Sargeant III, Mustafa Abu Naba'a,
International Oil Trading Company, LLC, BIB Refining, LLC and Sargeant Marine, Ltd. with
advanced Notice of Plaintiff's request for ex pane Temporary Restraining Order because
Plaintiff will suffer imminent, irreparable harm without the Court's immediate intervention,
Plaintiff has no ,adequate remedy at law, and because the facts making the relief requested herein
only came to light the day before this filing, no adequate opportunity to provide notice is
available in order to preserve the status quo.
The undersigned counsel for Plaintiff further certifies that a true and correct copy of the
foregoing has been served upon all known counsel of record by electronic service, certified mail,
return receipt requested, facsimile or other such acceptable form of service p ant to the Texas
Rules of Civil Procedure.
47/
Daniel D. Pi to
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on the 2-n ci\
day of June 2015.
CRICELDA ANN BERNAL Notary Pu e of Texas
NOTARY PUBLIC
STATE OF TEXAS
COMM. EXPIRES 10.224015
My Commission Expires: 10 2_2 -
- 35 -
72
Appendix D
Order Granting Temporary Injunction
(July 2, 2015)
(CR 337-339)
37
d -4.
CAUSE NO. 2014 DCV-5860-G
MOH A MMAD ANWAR VAR ID § IN THE DISTRICT COURT FOR
AL SALEH
Plaintiff/Judgment Creditor, §
§
§
v. § 319th JUDICIAL DISTRICT
§
HARRY SARGEANT III, §
MUSTAFA ABU-NABA'A, and §
INTERNATIONAL OIL TRADING §
COMPANY, LLC, BTB REFINING, LLC §
do. SARGEANT MARINE, LTD. §
Defendants/Judgment Debtors. § NUECES COUNTY, TEXAS
ORDER ON TEMPORARY INJUNCTION
99. •....d• Ad _ .. f. , . - • :- - - :•i•- • • • • D' II .8
("Plaintiff'), has filed a Verified Amended Petition, Third-Party Petition, Application for
Temporary Restraining Order and Injunctive Relief and Request for Appointment of Receiver
("Petition"). In connection therewith, this Court issued a Temporary Restraining Order on June
4, 2015, which was extended by further Order of this Court on June 16, 2015. Plaintiff has
bequest for a Temporauy Injunctioi , regarding which the Court heard documentary
and testimonial evidence on June 26, 2015 and on June 30, 2015.
Upon the Court's consideration of Plaintiffs Petition and the pleadings on file, the
tJnswnrn Declaration made subject to the penalty of perjury supporting Plaintiffs Petition, and
the documentary and testimonial evidence offered and received by this Court in support of the
Temporary Injunction, the Court is of the opinion that Plaintiff will suffer an immediate and
irreparable harm and injury if a Temporary Injunction does not issue and that Plaintiff has no
adequate remedy at law. It appears from the facts set forth in such pleadings and from the
337
1
•i 4.
evidence offered and received that Plaintiff has met the elements required for issuance of a
Temporary Injunction.
Furthermore, Plaintiff has demonstrated a probable right to the relief sought against
Defendants and a likelihood of success on the merits. This Court finds that, based upon the
pleadings and evidence before it, plaintiff has demonstrated a probable right to relief by
demonstrating, among other things, that Plaintiff is a creditor; that Plaintiff has a claim against
Defendants; that Defendant Sargeant is a debtor; that Defendant BTB is the alter ego of
Defendant Sargeant; and that Defendant BTB's incurring the obligation of the January 31, 2013
Zero Coupon Promissory Note in favor of Defendant Sargeant Marine constitutes a transfer
made with the intent to delay, hinder and defraud.
Moreover, Plaintiff has demonstrated a probable, imminent and irreparable harm in that,
unless Defendants are immediately restrained from committing the acts described below,
Defendants will commit such acts before Plaintiff's claims can be decided. Plaintiff h
demonstrated herein that he will suffer probable, imminent and irreparable harm and would lack
an adequate remedy at law without the Court's intervention. Plaintiff has established more than a
mere fear or apprehension that such property and assets will be moved, wasted, dissipated or
otherwise transferred beyond the jurisdictional reach of this or any other United States Court if
not immediately restrained based upon, among gs, testimony that a significant amount
of the proceeds have already been transferred by BTB.
IT IS, THEREFORE, ORDERED that Defendants Sargeant, BTBJ
and the officers, agents, servants, employees, attorneys, principals, members, manager and other
persons in active concert or participation with them, be, and hereby are, commanded forthwith to
desist and refrain from using or transferring to any person or entity $21,828,446.65 or
338
,
transferring such amount out of the jurisdiction of this Court, from the date of this Order until
further Order of this Court.
IT IS FURTHER ORDERED that this matter is set for trial on December 7, 2015. The
Clerk of the Court is hereby directed to issue a Notice to the Parties accordingly.
The Clerk of the above-entitled Court shall forthwith, on the filing by Plaintiff of the
bond hereinafter required, and on approving the same according to the law, issue a Temporary
Injunction in conformity with the law and the terms of this Order.
This Order shall not be effective unless and until Plaintiff executes and files with the
Clerk a bond, in conformity with the law, in the amount of $750, t 00.00.
SIGNED this 2"d day of July 2015 at di
339
-3-
Appendix E
TEX. CIV. PRAC. & REM. CODE § 61.001
38
§ 61.001. General Grounds, TX CIV PRAC & REM § 61.001
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 3. Extraordinary Remedies
Chapter 6i. Attachment (Refs & Annos)
Subchapter A. Availability of Remedy
V.T.C.A., Civil Practice & Remedies Code § 61. ow.
§ 61. ow. General Grounds
Currentness
A writ of original attachment is available to a plaintiff in a suit if:
(1) the defendant is justly indebted to the plaintiff;
(2) the attachment is not sought for the purpose of injuring or harassing the defendant;
(3) the plaintiff will probably lose his debt unless the writ of attachment is issued; and
(4) specific grounds for the writ exist under Section 61.002.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Notes of Decisions (21)
V. T. C. A., Civil Practice & Remedies Code § 61.001, TX CIV PRAC & REM § 61.001
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature
End of Document c) 2015 Thomson 'tethers, No claim to original U,S. Government Works.
Next' 5 2014 TholrisDri =',),euters. No claim to original U.S: Gov. merit Works.
Appendix F
Texas Business Organizations Code s 101.112
39
BUSINESS ORGANIZATIONS CODE CHAPTER 101. LIMITED LIABILITY COMPANIES Page 9 of 40
(3) on the death of a member's spouse, an heir, devisee, personal
representative, or other successor of the spouse, other than the member, to the
extent of their respective membership interest, if any, is an assignee of the
membership interest.
(b) This chapter does not impair an agreement for the purchase or sale of
a membership interest at anytime, including on the death or divorce of an
owner of the membership interest.
Added by Acts 2011, 82nd Leg., R.S., Ch. 139 (S.B. 748), Sec. 36, eff.
September 1, 2011.
Sec. 101.112. MEMBER'S MEMBERSHIP INTEREST SUBJECT TO CHARGING ORDER. (a)
On application by a judgment creditor of a member of a limited liability
company or of any other owner of a membership interest in a limited liability
company, a court having jurisdiction may charge the membership interest of the
judgment debtor to satisfy the judgment.
(b) If a court charges a membership interest with payment of a judgment as
provided by Subsection (a), the judgment creditor has only the right to receive
any distribution to which the judgment debtor would otherwise be entitled in
respect of the membership interest.
(c) A charging order constitutes a lien on the judgment debtor's
membership interest. The charging order lien may not be foreclosed on under
this code or any'other law.
(d) The entry of a charging order is the exclusive remedy by which a
judgment creditor of a member or of any other owner of a membership interest
may satisfy a judgment out of the judgment debtor's membership interest.
(e) This section may not be construed to deprive a member of a limited
liability company or any other owner of a membership interest in a limited
liability company of the benefit of any exemption laws applicable to the
membership interest of the member or owner.
(f) A creditor of a member or of any other owner of a membership interest
does not have the right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the limited liability
company.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 688 (H.B. 1737), Sec. 98, eff. September 1,
2007.
Acts 2009, 81st Leg., R.S., Ch. 84 (S.B. 1442), Sec. 40, eff. September 1,
2009.
179
http://www.statates.legis.state.tx.us/Docs/B0/1-rtm/B0.101.htm 6/3/2015