## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00364 - CV

ANDREW J. NORSTRUD APPELLANT V. ANNA AND JOHN CICUR APPELLEES

---------- FROM THE 153RD DISTR ICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 153

- 273779

- 14

---------- 

### MEMORANDUM OPINION 1

---------- I. I NTRODUCTION Th is is a n interlocutory appeal from the trial court’s denial of Appellant Andrew J. Norstrud ’s special appearance in a suit filed against him by Appellees Anna and John Cicur. Norstrud raises two issues on appeal: one asserting that the trial court’s findings of fact and conclusions of law are not entitled to

1 See Tex. R. App. P. 47.4.2

deference by this court and another asserting that the trial court erred by determining specific personal jurisdiction over Norstrud exists in Texas. Because the trial court’s f act findings are either unchallenged or are supported by legally sufficient evidence that underpin s the trial court’s conclusions of law determining that Norstrud ha s minimum contacts with Texas and purposefully availed himself of the privilege of doing business in Texas, that the exercise of personal jurisdiction over Norstrud comports with traditional notions of fair play and substantial justice, and that specific personal jurisdiction exists over Norstrud in Texas, we will aff irm the trial court’s order denying Norstrud’s special
appearance. II. F ACTUAL A ND P ROCEDURAL B ACKGROUND The Cicurs sued Norstrud for violations of the Texas Securities Act, fraud, fraudulent inducement, fraudulent concealment, breach of fiduciary duty,

n egligence, negligent misrepresentation, liability based on principles of agency and respondeat superior, negligent supervision, statutory fraud under the Texas Business and Commerce Code, and professional misconduct ; the Cicurs alleged that Norstrud genera ted and provided fraudulent information to induce their financial investment in Amstem, a foreign company producing stem

- cell

containing cosmetics purportedly promoting youthful skin. 2 The Ci curs asserted

2 The Ci curs sued other defendants as well, but the trial court severed the Ci curs ’ claims against Norstrud following its denial of Norstrud’s special appearance and stayed the proceedings against the other defenda nts in the trial court pending this appeal.3

that the trial court has general and specific juri sdiction over Norstrud because “this lawsuit arises out of Norstrud’s business activities in Texas (including, but not limi ted to, contracting with the Ci curs regarding performance to occur in whole or in part in Texas , and committing tortious acts in whol e or in part in Texas)” and pleaded jurisdictional facts concerning Norstrud’s conduct in connection with each cause of action asserted. Nor strud filed a special

a ppearance arguing that the trial court lacked jurisdiction over him and filed three affidavi ts in support of his special appearance. 3 The Cicurs filed a response to Norstrud’s special appearance, attaching 250 pages of special appearance evidence , including John Cicur’s affidavit, copies of the five agreements signed by Norstrud , pertinent email s , the Power P oint prepared at least in part b y Norstrud to solicit the Cicur s ’ investment, the Circurs ’ b ank records documenting the ir investment in Amstem, Amstem’s bank records reflecting deposit of the Cicurs ’ investment and documenting Amstem’s use of the funds, and deposition excerpts. Norstrud lodged no objection to the Cicur s ’ evidence , and the reporter’s record from the hearing on Norstrud’s special appearance reflects that the trial court considered it. After the hearing on Nor strud’s special ap pearance, the trial court signed an order denying it. At Norstrud’s request, the trial court

3 The affidavits are from Norstrud, Norstrud’s administrative assistant, and Norstrud’s accounting clerk. All three of the affidavits deny that Norstrud resides in Texas or that he does business in Texas. They d o not specifically address the Ci curs’ factual allegations concerning Norstrud’s commission of tort s in whole or in part in Texas.4

entered findings of fact and conclusions of law in support of its determination that speci fic jurisdiction exist s over Nor strud.

III. B URDENS OF P ROOF AND S TANDA RD OF R EVIEW The standard of review and the burdens of proof that we a pply in reviewing a trial court’ s ruling on a special appearance are recit ed extensively in the case law. Under the Texas long

- arm statute, the plaintiff has the initial burden to plead sufficient allegations to confer jurisdiction. Retamco Operating, Inc. v. Republic Drilling Co. , 278 S.W.3d 333, 337 (Tex. 2009). This minimal pleading requirement is satisfied by an allegation that the nonresident defendant is doing business in Texas. See Assurances Generales Banque Nationale v. Dhalla , 282 S.W.3d 688, 695 (Tex. App.

–– Dallas 2009, no pet.) ; see also Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (West 2015 ) (setting forth acts that constitute doing business for purposes of the long

- arm statu te)

. The nonresident defendant then has the burden of negating all bases of jurisd iction alleged in the plaintiff’ s petition. Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 574 (Tex. 2007); Am. Type Culture Collection, Inc. v. Coleman , 83 S.W.3d 80 1, 807 (Tex. 2002), cert. denied , 537 U.S. 1191 (2003). The nonresident defendant can negate jurisdiction on either a factual or a legal basis. Kelly v. Gen

. Interior Const r ., Inc ., 301 S.W.3d 653, 659 (Tex. 2010). Factually, a nonresident defendant can present evidence that it has no contacts with Texas, effectively disproving the plaintiff’s allegations. Id .; Foley v. Trinity Indus

. Leasing Co. , 314 S.W.3d 593, 604 (Tex. App.

–– Dallas 2010, no pet.).5

The plaintiff can then respond with its own evidence that affirms its jurisdictional allegations. Kelly

, 301 S.W.3d at 659. Legally, the defendant can show that even if the plaintiff’s alleged facts are true, the evidence is legally insufficient to establish jurisdiction; the defendant’s contacts fall sho rt of purposeful availment; for specific jurisdiction, the claims do not arise from the contacts; or traditional notion s of fair play and substantial justice are offended by the exercise of jurisdiction. Id

. The trial court determines whether or not, v iewing all of the evidence, a defendant has negated all potential bases for jurisdiction ; in doing so, the trial court frequently must resolve questions of fact. See , e.g. , BMC Software Belg., N.V. v. Marchand

, 83 S.W.3d 789, 794 (Tex. 2002). If a trial c ourt issues findings of fact i n connection with a special appearance , the appellant may challenge the fact findings on legal and factual sufficiency grounds. Id . Unchallenged findings of fact, however, are considered conclusively established and are bind ing on an appellate court. See Dresser

- Rand Grp. Inc. v. Centauro Capital, S.L.U. , 448 S.W.3d 577 , 580 (Tex. App.

–– Houston [14th Dist. ] 2014, no pet.) (recognizing that unchallenged special

- appearance findings of fact are binding on appellate
court but ad dressing challenged findings); Rushmore Inv. Advisors, Inc. v. Frey , 231 S.W.3d 524, 530 (Tex. App.

— Dallas 2007, no pet.) (“Because Rushmore does not challenge these fact findings, they are binding on us.”); Hooks v. Carpeton Mills, Inc., No. 02

- 05

- 000059

- CV, 2005 WL 3526560, at *1 (Tex. App.

— Fort Worth Dec. 22, 2005, no pet.) (mem. op.) (holding that “[w]hen the6

trial court makes findings of fact following a special appearance hearing, they are binding on this court unless challenged on appeal pursuant to ordinary insufficiency

- of

- the

- evidence claims”). Conclusions of law may not be cha llenged for sufficiency but are reviewed to determine their correctness based upon the facts. Rischon Dev. Corp. v. City of Keller , 242 S.W.3d 161, 166 (Tex. App.

–– Fort Wo rth 2007, pet. denied) , cert. denied , 555 U.S. 996 (2008)

. The conclusion that personal jurisdiction exists over a defendant is a conclusion of law that we review de novo. Retamco Operating, Inc. , 278 S.W.3d at 337. Thus, we will uphold the trial court’ s special appearance ruling if it can be sustained based on any conclusions of law supported by the evidence. City of Houston v. Cotton , 171 S.W.3d 541, 546 (Tex. App.

–– Houston [14th Dist.] 2005, pet. denied).

I V. T HE T RIAL C OURT ’ S F INDINGS AND C ONCLUSIO NS The trial court signed thirty

- four findings of fact and eighteen conclusions of law in connection with its ruling on the special appearance. See BMC Software Belg., N.V. , 83 S.W.3d at 794 ( recognizing that trial court may sign findings of fact in conn ection with special

- appearance ruling). R elevant here, t he trial court found and concluded the following : 1. The Cicurs are Texas residents.
2. Defendant Andrew J. Norstrud (“Norstrud”) is a Florida resident. 3. In May 2010, Norstrud was acting as the Chief Financial Officer of Amstem Corp. (“Amstem”).7

4. At that time, Norstrud claimed Amstem needed $1 million in bridge note financing to tide the company over as it sought equity financing for an upcoming project.
5. Norstrud knew Defendants Jakobus J ordaan and Stonegate Securities, Inc.
6. Jordaan and Stonegate, who knew the Cicurs, sought out the Cicurs to secure the $1 million.
7. Norstrud, himself and through Jordaan and Stonegate, presented the Cicurs with an opportunity to invest in a busines s relating to the sale and distribution of stem cell

based cosmetics. 8. Norstrud, himself and through Jordaan and Stonegate, told the Cicurs that Amstem was a Nevada corporation that owned 100% of Amstem International and owned 90% of the Histostem Co., Ltd. 9. Norstrud, himself and through Jordaan and Stonegate, promised the Cicurs [] that their investment would be secured by nearly 178 million shares of Histostem common stock. These shares amounted to 90% of all issued and outstanding shares of Histos tem. 10. The Cicurs invested $1 million in Amstem. The Cicurs invested the money based on misrepresentations made by Norstrud.
11. On May 24, 2010, the Cicurs made a $500,000 secured investment in Amstem in exchange for a note and securities.
12. On June 18, 2010, the Cicurs made another $500,000 secured investment in Amstem in exchange for a note and securities. 13. Norstrud executed at least five Agreements on behalf of Amstem.

. . . .8

21. Norstrud personally certified, in his individual ca pacity, that all the representations and warranties of Amstem were true and accurate in all material respects.
22. The Agreements [signed by Norstrud] were to be performed in Texas. 23. Amstem was supposed to pay the Cicurs back their principal and int erest by November 30, 2010.
24. Amstem defaulted. 25. Norstrud spent the Cicurs’ $1 million, which he purported to obtain on Amstem’s behalf.
26. Norstrud took approximately $100,000 for himself directly, and an additional $300,000 through companies he controlled.
27. Norstrud also directed funds obtained from the Cicurs to himself through Amstem’s credit card and travel accounts. 28. Norstrud paid moneys he obtained from the Cicurs to individuals who assisted him in creating the appearance that Amstem was a legitimate company. 29. The Cicurs later learned that t he shares in Histostem, which formed the security for their investment, were not owned by Amstem. 30. Norstrud knew or should have known that the Histostem and Amstem merger never happ ened.

. . . . CONCLUSIONS OF LAW
35. Norstrud is subject to specific personal jurisdiction in Texas. 36. Norstrud waived his special appearance by executing the Escrow Agreement and the Pledge and Security Agreement, which contained forum

- selec tion clauses and/or clauses operating as contractual consent to jurisdiction. Michiana9 Easy Livin’ Country, Inc. v. Holden , 168 S.W.3d 777, 792 (Tex. 2005). 37. T he “corporate s hield” doctrine i s inapplicable to the facts of this case. SITQ E.U., Inc. v. Reata Rest. Inc. , 111 S.W.3d 638, 650

– 51 (Tex. App.

–– Fort Worth 2003, pet. denied). 38. Norstrud is subject to specific personal jurisdiction in Texas because he took actions in his corporate capacity for which, if determined to be fraudulent and/or tortious, he also would face liability in his individual capacity. Id

. 39. Norstrud is subject to personal jurisdiction in Texas because Amstem is his alter ego and/or a sham entity. See Wolf v. Summers

- Wood, L.P. , 214 S.W.3d 783, 790 (Tex. App.

–– Dalla s 2007, no pet); Vosko v. Chase Manhattan Bank, N.A ., 909 S.W.2d 95, 99 (Tex. App.

–– Houston [14th Dist.] 1995, writ denied). 40. Norstrud controlled the internal business operation s and affairs of Amstem to such an extent that Norstrud and Amstem effecti vely ceased to be separate including, but not limited to, controlling and directing the spending of Amstem’s money for his own benefit and directing other Defendants to engage the Cicurs in investing in Amstem. Commonwealth Gen. Corp. v. York , 177 S.W.3d 923, 925 (Tex. 2005) (per cur i am) (citing BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 789

– 99 (Tex. 2002)).
41. The Cicurs complied with the requirements under the Texas long

- arm statute by alleging that Norstrud committed torts in Texas. Tex. Ci v. Prac. & Rem. Code § 17.042(2).

V. N ORSTRUD ’ S F IRST I SSUE In his first issue, Norstrud argues that “minimal deference” should be afforded to the trial court’s findings of fact and conclusions of law because the trial court adopte d the Cicurs’ proposed findings and conclusions verbatim. In support of this position, Norstrud cites Villagomez v. Rockwood Special ties, Inc .,10

210 S.W.3d 720, 726 (Tex. App.

–– Corpus Christi 2006, pet. denied). Because the Texas Supreme court has not adopted differing standard s of review for findings of fact adopted verbatim from a prevailing party’s proposed findings of fact versus findings of fact not adopted verbatim or modified by the trial court, we decline to follow the holding of our sister court in Villagomez that lesse r deference is required by this court to findings of fact adopted verbatim, to the
extent Villagomez m ay be construed as so holding. We will continue to apply the standard of r eview enunciated by the
supreme court in BMC Software Belg., N.V. and its progen y –– requiring an appellant to challenge the sufficiency of the evidence to support fact findings made by the trial court and regarding the facts found as conclusively established in the absence of such a challenge. See, e.g. , Kelly , 301 S.W.3d at 659 n.7 ( noting that the losing party on a special appearance in the trial court may challenge in the court of appeals the sufficiency of the evidence to support the trial court’s fact findings ); BMC Software Belg., N.V. , 83 S.W.3d at 794 (stating that “[i]f a tria l court enters an order denying a special appearance, and the trial court issues findings of fact and conclusions of law, the appellant may challenge the fact findings on legal and factual sufficiency grounds”); Dresser

- Rand Grp. Inc. , 448 S.W.3d at 580 (h olding unchallenged fact findings are binding on appeal) ; Rushmore Inv. Advisors, Inc. , 231 S.W.3d at 530 (same) ; Hooks, 2005 WL 3526560, at *1 (same)

.11

Accordingly, we overrule Norstrud’s first issue.

V I
. N ORSTRUD ’ S S ECOND I SSUE A. The Parties’ Positio ns In his second issue, Norstrud asserts that the trial court erred “in finding personal jurisdiction over M r. Norstrud, a Florida resident with no contacts with Texas.” Norstrud argues that to the extent he had contacts with Texas, such
contacts were not attributable to him individually but were in his capacity as the Chief Financial Officer of Amstem. Norstrud argues that his contacts with Texas as a corporate officer of Amstem cannot be attributed to him individually absent proof from the Cicurs that A mstem is his alter ego. He also asserts that his contacts with Texas in his capacity as Amstem’s CFO are insufficient to satisfy the “purposeful availment” element required to est ablish personal jurisdiction. And finally, Norstrud argues that the trial c ourt’s exercise of specific jurisdiction over him violates traditional notions of fair play a nd substantial justice. In response, the Cicurs make several arguments. First, the Cicurs assert that Norstrud did not challenge any of the trial court’s fact findings , so the findings are binding on this court. Second, the Cicurs point out that Norstrud signed agreements containing misrepresentations , 4 generated a Power P oint containing misrepresentations, and orchestrated the dissemination of this misinformat ion to them to induce their investment in Amstem; these

4 Several of the agreements contain provisions either that the agreement is governed by Texas law or that the agreement is per formable in Texas.12

misrepresentations form the basis of the Cicurs’ common - law and statutory tort claims against Norstrud. T he Cicurs note t hat two exceptions exist to the jurisdictional protection afforded by the fidu ciary

- shield doctrine

–– those being when the corporate officer commits torts for which he may be held individually liable and when the corporation is operated as the officer’s alter ego

–– and argue that , although the trial court concluded both exceptions app lied here , Norstrud challenge d on appeal only the alter

- ego conclusion. Consequently, t he Cicurs assert that the u nchallenged fact findings support ing the conclusion of law that the fiduciary

- shield doctrine does not apply based on the first exception

–– be cause Norstrud, even if his acts were on behalf of Amstem, committed

common - law and statutory torts for which he ma y be held individually liable

–– render it unnecessary for this court to address Norstrud’s challenge to the alter

ego exception. Thus, the Ci rcurs contend that the only issue left for resolution by this court is the legal issue of whether the trial court’s exercise of specific jurisdiction over Norstrud comports with traditional notions of fair play and substantial justice

.

B
. Unchallenged or Legally Sufficient Fact Findings Norstrud’s special appearance and his three supporting affidav its factually negated the Cicur s ’ jurisdictional allegations by simply denying any contacts with Texas. See Kelly

, 301 S.W.3d at 659 (explaining that to factua lly negate jurisdiction nonresident “defendant can present evidence that it has no contacts with Texas” ); Foley

, 314 S.W.3d at 604 (recognizing defendant’s affidavit13

negated plaintiff’s claimed bases for subjecting defendant to jurisdiction). The Cic urs r esponded by presenting 250 pages of their own juris dictional evidence , documenting Norstrud’s alleged tortious acts that were committed in whole or in part in Texas either through Jo rdaan and Stonegate Securities or in Norstrud’s
cap acity as an officer of Am stem and documenting how their claims against Norstrud individually arose from his alleged tortious acts in these capacities

. Logically, we must first address the Cicur s ’ contention that Norstrud has failed to challenge the legal or factual sufficiency of the trial court’s fact findings. Norstrud’s opening appellate brief does not contain a specific issue or argument challenging the sufficiency of the evidence to support any of the trial court’s findings of fact

. 5 His opening brief performs no legal

- or factual

sufficiency ana lysis of the 250 pages of special

- appearance evidence filed by the Cicurs pertinent to any trial court fact finding

. Norstrud’s reply brief argues that Norstrud did challenge the trial court’s “key” fact findings and cites seven different pages in Norstrud’s opening brief. We have reviewed the seven referenced pages

. The first and second referenced page s simply state the black

letter law that fact findings may be challenged for sufficiency of the evidence. The third referenced page contains no sufficiency challenge whatsoever. The

5 Norstrud’s reply brief does undertake such an analysis, but the law is well

settled that new issues, including sufficiency of the evidence challenges, may not be raised for the first time in a reply brief. See, e.g. , Hutchison v. Pharr is , 158 S.W.3d 554, 564 & n.11 (Tex. App.

— Fort Worth 2005, no pet.) (noting the well

established principle and listing supporting cases).14

fourth and fifth referenced page s challenge conclusion of law number 39 on legal grounds related to nonapplication of the fiduciary

- shield doctrine based on the alter

- ego exception. The sixth and se venth cited pages challenge conclusion of law number 45 and stat e that “ the record is entirely void of any interactions directly between Mr. Norstrud and the Cicurs” and “the trial court’s findings of fact as to this issue are legally and factually insuffi cient.” To the extent Norstrud’s opening brief can be l iberally construed as raising a challenge to the findings of fact supporting conclusion s of law 39 (non

application of the fiduciary

- shield doctrine based on the alter

- ego exception) and 45 (stating personal jurisdiction exists based on Norstrud’s contacts within Texas) , because Norstrud’s brief does not address evidence favorable to the Ci curs, as necessary in the against

- the

- great
- weight factual

- sufficiency analysis required of Norstrud as the party ultimately bearing the burden to negate personal jurisdiction , any factual

- sufficiency challenge is waived , and at most, Norstrud raises only a legal

- sufficiency challenge concerning fact findings supporting conclusions of law 39 and 45. See, e.g. , Arche r v. DDK Holdings LLC , No. 14

- 14

- 0 0017

- CV, 2015 WL 1393299, at *4 ( Tex. App.

–– Houston [14th Dist.] Mar. 24, 2015, no pet. ) (holding factual

- sufficiency challenge to fact findings waived because appellant did not address evidence favorable to appellees); se e also Tex. R. App. P. 38.1(i) ( requiring brief to contain clear and concise argument for the contentions made ). V iewing the 250 pages of special

appearance evidence in the light most favorable to the Cicurs , the evidence rises15

at least to a level that wo uld enable reasonable and fair

- minded people to differ in their conclusions concerning the findings of fact supporting conclusions of law 39 and 45. See Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004). Specifically, the Cicurs ’ evidence, view ed in the light most favorable to the trial court’s fact findings shows that Jordaan and Stonegate Securities signed an agency agreement with Amstem . Norstrud , on behalf of Amstem , produced a P ower P oint and materials for Jordaan and Stonegate Securities to utilize to solicit a specific “bridge note” investment in Amstem. The P ower P oint and materials contained misrepresentations generated b y Norstrud. After the Cicurs agreed to make t he investment, Norstrud through Amstem created “t ransaction” documents that also contained misrepresentations , and all of th e transaction documents were signed by Norstrud . Norstrud utilized the monies invested by the Cicurs for purposes other than the stated purpose for the investment and also utilized the mo nies for his p ersonal benefit. Because Norstrud does not identify which of the trial court’s thirty

- four fact finding s that he purports to challenge by his contention that conclusions of law 39 and 45 are erroneous, w e have examined all of the trial court’s fact findin gs , and we hold that, viewed in the light most favorable to the Cicurs and disregard ing contrary evidence because a reasonable fact

- finder could, the evidence is legally sufficient to support all of the trial court’s fact findings. Because the trial court’s fact findings are either unchallenged or are challenged only for legal sufficiency and are supported by legally

- sufficient16

evidence , they are binding on this court on appeal. See Dresser

- Rand Grp. Inc ., 448 S.W.3d at 580; Rushmore Inv. , 231 S.W.3d at 530; Hooks , 2005 WL 3526560, at *1. Accordingly, looking to the trial court’s findings of fact in our jurisdictional analysis below , we determine whether the trial court correc tly determined that it possesses specific jurisdiction over Norstrud.

C

. The Law Concerning Specific Jurisdiction Texas courts may assert specific personal jurisdiction over a nonresident if (1) the Texas long

- arm statute authorizes the exercise of personal jurisdiction and (2) the exercise is consistent with federal and state constitutional due

process guarantees. Moki Mac River Expeditions , 221 S.W.3d at 574

. Specific jurisdiction is established if the claims in question arise from or relate to the defendant’ s purposeful contacts with Texas. Spir Star AG v. Kimich, 310 S.W. 3d 868, 873 (Tex. 2010); Kelly, 301 S.W.3d at 658; Moki Mac River Expeditions , 221 S.W.3d at 576. The “arises from or relates to” requirement lies at the heart of specific jurisdiction by defining the required nexus between the nonresident defendant, the litigation, and the forum state. Moki Mac River Expeditions , 221 S.W.3d at 579. That is, w hen specific jurisdiction is asserted, the minimum

contacts analysis focuses on the relationship between the nonresident defendant, the forum state, and the litigati on. Id. at 575

– 76; Guardian Royal Exch. Assurance, Ltd. , 815 S.W.2d 223, 226 (Tex. 1991) . For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the nonresident defendant’ s contacts with the forum sta te must be purposeful;17

and (2) the cause of action must arise from or relate to those contacts. See Burger King Corp. v. Rudzewicz , 471 U.S. 462, 47 5

– 76 , 105 S. Ct. 2174, 2183

– 85 (1985) ; Spir Star AG , 310 S.W.3d at 873; Moki Mac River Expeditions , 221 S.W .3d at 579; BMC Software Belg., N.V. , 83 S.W.3d at 796. Finally, in addition to the requirement of minimum contacts with the forum state, the exercise of personal jurisdiction over a nonresident defendant must comport with traditional notions of fair play and substantial justice. See Burger King , 471 U.S. at 476, 105 S. Ct. at 2184; BMC Software Belg., N.V. , 83 S.W.3d at 795. If it is determined that the defendant has purposefully directed activities at forum residents, it becomes the defendant’s burden t o “present a compelling case the presence of some other considerations would render jurisdiction unreasonable.” Burger King , 471 U.S. at 477, 105 S. Ct. at 2184

– 85; see Spir Star AG , 310 S.W.3d at 878

– 79. The burden of having to travel to the forum
state for litigation alone is ordinarily insufficient to defeat jurisdiction. Guardian Royal , 815 S.W.2d at 231 (citing McGee v. Int’l Life Ins. Co. , 355 U.S. 220, 223, 78 S. Ct. 199, 201 (1957)); Tabacinic v. Frazier , 372 S.W.3d 658, 671 (Tex. App.

— Dallas 201 2, no pet.). The following factors are useful in evaluating whether subjecting a nonresident defendant to specific jurisdiction violates traditional notions of fair play and substantial justice: (1) the burden on the defendant; (2) the interests of the forum in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in18

obtaining the most efficient resolution of controversies; and (5) the shared interest of the seve ral states in furthering substantive social policies. Guardian Royal , 815 S.W.2d at 228 (citing Asahi Metal Indus. Co., Ltd. v. Superior Court , 480 U.S. 102, 113, 107 S. Ct. 1026, 1033

– 34 (1987); Burger King , 471 U.S. at
476 , 105 S. Ct. at 2184; World

- Wid e Volkswagen Corp. v. Woodson , 444 U.S. 286, 292, 100 S. Ct. 559, 564 (1980)); D.H. Blai r I nv. Banking Corp. v. Reardon , 97 S.W.3d 269, 27 8 (Tex. App.

— Houston [14th Dist.] 2002, pet. dism’d w.o.j.) (op. on reh’ g)

. Only in rare cases will the exercise of j urisdiction not comport with fair play and s ubstantial justice when the nonresident defendant has purposefully established minimum contacts with the forum. Guardian Royal , 815 S.W.2d at 231 (citing Burger King , 471 U.S. at 477

– 78, 105 S. Ct. at 2185); D.H . Blair Inv. Banking Corp. , 97 S.W.3d at 278. D . Jurisdictional Analysis
1
. Texas Long - Arm Statute In determining whether Texas courts may assert specific jurisdiction over Norstrud, who is a nonresident, we first examine whether the Texas long

- arm statu te authorizes the exercise of personal jurisdiction

. Moncrief Oil Int ’l Inc. v. OAO Gazprom , 414 S.W.3d 142, 150 (Tex. 2013); Moki Mac River Expeditions , 221 S.W.3d at 574

. The long

- arm statute allows the exercise of personal jurisdiction over a nonresid ent defendant who “commits a tort in whole or in part in this state.” Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2)

. The Cicurs pleaded that Norstrud had committed common

- law and statutory torts in Texas19

consisting of violations of the Texas Securities Ac t, fraud, fraudulent inducement, fraudulent concealment, breach of fiduciary duty, negligence, negligent misrepresentation, liability based on principles of agency and respondeat superior, negligent supervision, statutory fraud under the Texas Business and Commerce Code, and professional misconduct

. Thus, Texas courts may exercise specific jurisdiction over Norstrud to defend the tort claims asserted against him so long as the exercise of specific jurisdiction is consistent with federal and state constitut ional due

- process guarantees. Moncrief Oil Int ’l Inc. , 414 S.W.3d at 150 ; Retamco , 278 S.W.3d at 338.

2 . Minimum Contacts and Purposeful Availment Although generally a trial court’s assertion of specific jurisdiction over a nonresident defendant requires us to analyze jurisdictional contacts on a claim

by

- claim basis , we need not assess contacts on a claim

- by

- claim basis if all claims arise from the same f orum contacts, as they do here. See M oncrief Oil Int ’l Inc. , 414 S.W.3d at 150. Thus, we next analy ze whether Norstrud’s fo rum contacts with Texas , as reflected in the trial court’s fact findings , support the trial court’s conclusion s of law that it possessed specific personal jurisdiction over Norstrud, that Norstrud had minimum contacts with Texas, th at Norstrud purposefully availed himself of the privilege of conducting activities within Texas, and that Norstrud sought a financial benefi t or profit th rough such purposeful availment.20

T he following binding findings of fact by the trial court are relev ant for our “purposeful availment” inquiry: 8. Norstrud, himself and through Jordaan and Stonegate, told the Cicurs that Amstem was a Nevada corporation that owned 100% of Amstem International and owned 90% of Histostem Co., Ltd. 9. Norstrud, himself and through Jordaan and Stonegate, promised the Cicurs [] that their investment would be secured by nearly 178 million shares of Histostem common stock. These shares amounted to 90% of all issued and outstanding shares of Histostem. 10. The Cicurs invested $1 million in Amstem. The Cicurs invested the money based on misrepresentations made by Norstrud.

. . . . 21. Norstrud personally certified, in his individual capacity, that all the representations and warranties of Amstem were true and accurate in al l material respects. 28. Norstrud paid moneys he obtained from the Cicurs to individuals who assisted him in creating the appearance that Amstem was a legitimate company. 29. The Cicurs later learned that the shares in Histostem, which formed the secur ity for their investment, were not owned by Amstem. 30. Norstrud knew or should have known that the Histostem and Amstem merger never happened. These unch allenged findings show that Nor strud, by himself as well as through Jordaan and Stonegate Securiti es , purposefully targeted the Cicurs in Texas, directed misinformation to them to secure their investment, and used the
money that they had invested in a manner inconsistent with the alleged purpose21

for soliciting it. These fact findings support the trial court’s conclusion that “Norstrud purposefully availed himself of the privilege of conducting activities within Texas.” 6 See Burger King , 471 U. S. at 47 2 , 105 S. Ct. at 218 2 ( explaining purposeful availment satisfied when nonresident “purposefully direct s ” his efforts “at residents of the forum” and the litigation results from injuries “that arise out of or relate to” those activit i es) ; c f. IRA Resources, Inc. v. Griego , 221 S.W.3d 592, 596 (Tex. 2007) (finding no purposeful availment when plaintiff prove d no misrepresentations by nonresident and no knowledge of misrepresentations attributable to nonresident). Also, several of the agreements signed by Norstrud contain clauses that either Texas law governs the agreement or that the agreement is performable in Texas, these clauses show the contemplation of a long

- term relationship with Texas and constitute factors to consider in determining whether a defendant “purposefully invoked the benefits and protections of a State’s laws.” Burger King , 471 U.S. at 482, 105 S. Ct. at 2187.

6 Norstrud relies on several cases rejecting a state’s assertion of jurisdiction over a nonresident parent corporat ion when the assertion of jurisdiction is premised simply on the fact that the parent corporation’s subsidiary is doing business in the state. See Cannon Mfg. Co

. v. Cudahy Packing Co ., 267 U.S. 333, 335 , 45 S. Ct. 250, 250

– 51 (1925); BMC Software Belg., N.V. , 83 S.W.3d at 795

– 96; Knight Corp. v. Knight , 367 S.W.3d 715, 730 (Tex. App.

–– Houston [14th Dist.] 2012, no pet.). We do not address these cases because they are based on fac ts inapposite to the facts here in which the trial court’s exercise of speci fic jurisdiction over Norstrud pivots on whether Norstrud’s own contacts with Texas are attributable to him individually or only to Amstem.22

Norstrud appears to argue that, despite the trial court’s fact findings (i.e., accepting them as true), he nonetheless cannot be shown to have sufficient contacts because he himself did not make the representations on which the Cicurs ’ claims are premi sed “directly” to the Cicurs. But, the Cicurs’ special

appearance evidence includes documents and Jordaan’s deposition excerpts establishing that Jordaan and Stonegate Securities were acting as agents for Amstem. John Cicur’s affidavit outlines the misrepresentations made by Jordaan and Stonegate Securities ; Jordaan testified that he did not know the information he had p rovided to solicit the Cicurs’ investment was false but agreed that Amstem , by Norstrud, had provided “materially fals e misre presentations to the Cicurs.” Specifically c oncerning Norstrud, Jordaan testified, “he [Norstrud]

s igned the Sarbanes certificate a nd he [Norstrud] signed the SEC filings that made representations and he [Norstrud] signed a securities purchase agre ement [with the Cicurs] with specific reps in it that are not true. ” Thus, the Cicurs ’ special

- appearance evidence established that Jordaan and Stonegate Securities acted as ag ents of Amstem who were utilized by Norstrud to funnel false information to th e Cicurs

. See Griego , 221 S.W.3d at 596

- 97 (implicitly recognizing that agent’s contacts with forum are attributable to principal). And the fact that Norstrud, in providing false information to Jordaan and to Stonegate Securities to solicit the Cicur’s i nvestment, was acting on behalf of Amstem and had engaged them to act as agents of Amstem, does not shield him from a23

Texas court’s exercise of specific jurisdiction

. See, e.g ., SITQ E.U., Inc. , 111 S.W.3d at 651

. Norstrud also argues that a purposeful

- av ailment analysis fails because he personally did not physically enter Texas . But the trial court found, and the Cicurs’ spe cial

- appearance evidence is legally sufficient to establish, that Norstrud purposefully avail ed himself of the privilege of conducti ng activities within Texas; consequently , jurisdiction is not defeated merely because Norstrud did not physically enter the state. See Burger King , 471 U.S. at 476, 105 S. Ct. at 2184 ( stating that “ [s] o long as a commercial actor’s efforts are ‘purposefu lly directed’ toward residents of another State,” the lack of physical entry is not fatal to specific jurisdiction

. ). T he common

- law and statutory tort claims asserted by the Cicurs against Norstrud arise from and are directly related to Norstrud’s purpo seful contacts with Texas. See, e.g. , Spir Star AG , 310 S.W.3d at 873 ; Kel ly , 301 S.W.3d at 658

. That is, given the trial court’s fact findings, the requisite specific

- jurisdiction nexus exis ts between Norstrud, the Cicurs’ claims, and the S tate of Texa s. See Moki Mac River Expeditions , 221 S.W.3d at 57 9

.24 3 . Fiduciary Shield 7
While individuals’ contacts with a forum are not to be analyzed based on their employer’ s activities in that forum, “their status as employees does not somehow insulate them fr om jurisdiction.” Calder v. Jones , 465 U.S

. 783, 790, 1047 S. Ct. 1482, 1487 (1984); SITQ E.U., Inc. , 111 S.W.3d at 651. A corporate officer is not protected from the exercise of specific jurisdiction, even if all of his contacts were performed in a corp orate capacity, if the officer engaged in tortious or fraudulent conduct directed at the forum state for which he may be held personally liable. See Crithfield v. Boothe , 343 S.W.3d 274, 287 (Tex. App.

— Dallas 2011, no pet.) ; Ennis v. Loiseau, 164 S.W.3d 69 8, 707 (Tex. App.

–– Austin 2005, no pet.); SITQ E.U., Inc. , 111 S.W.3d at 651 (citing D.H. Blair Inv. Banking Corp. , 97 S.W.3d at 277)

. This is based on the well

- established principle that a

7 Although technic ally not falling within a fiduciary

- shield analysis, in support of his contention that Texas courts lack specific personal jurisdiction over him because he is not personally a party to the documents he signed (that the Cicu rs claim contain misrepresentations) and signed them only in his corporate capacity, Norstrud cites cases in which a party sought to enforce a contract against a nonresident individual who either did not sign the contract or signed on behalf of a corporation. See Suzlon Energy Ltd. v. Trinity Structural Towers, Inc ., 436 S.W.3d 835, 840

– 41 (Tex. App.

–– Dallas 2014, no pet.) (nonsignato ry to contract sued for breach of contract); Foley , 314 S.W.3d at 604 (same); Wolf , 214 S.W.3d at 792 (individual defendants sued for breach of contract signed in corporate capacity). The facts of these cases cited and discussed by Norstrud are inapposite to the facts here because the Cicurs do not assert a breach

- o f

contract cause of action against Norstrud . T hey are not attempting to enforce the agreements ; instead , they assert common

- law and statutory tort causes of action against Norstrud for various misrepresentations that he allegedly made to induce their investment, including some misrepresentations in the agreements he signed.25

corporate officer is primarily liable for his own torts. SITQ E. U., Inc. , 111 S.W.3d at 651 ; see Calder

, 465 U.S

. at 790, 1047 S. Ct. at 1487 (holding that reporter and editor of allegedly defamatory magazine article were subject to personal jurisdiction)

. Norstrud argues that the conduct the Cicurs attribute to him w as committed by Jordaan and Stonegate Securities , and he claims that to the extent the conduct was attributable to him, he did it while working for Amstem, triggering the protection of the fiduciary

- shield doctrine

. Although Nor strud contends that the

con duct underlying the Cicurs’ suit is attributable to Amstem , rather than to himself, the subject conduct

— misrepresentations in the inducement of an investment and the misuse of the funds for noncorporate purposes

— is tortious

. Nor strud’s corporate

- officer s tatus thus does not shield him from the trial court’s exercise of specific jurisdiction. 8 See Crithfield , 343 S.W.3d at 287 (holding that

8 Norstrud argues extensively that the Cicurs failed to establish the alter

ego exception to the fiduciary

- shield doctrin e. B ut we agree with the Cicurs that two exceptions exist to application of the fiduciary

- shield doctrine , and Norstrud does not address the other exception

–– the corporate

- officer

- committed

- torts
- for

which

- he

- could

- be

- held

- individually

- liable exception. Because the trial court’s fact findings support application of this exception per conclusion of law 38

— stating that “Norstrud is subject to specific personal jurisdiction in Texas because he took actions in his corporate capacity for which, if determined t o be fraudulent and/or tortious, he also would face liability in his individual capacity”

— we need not address Norstrud’s argument concerning the correctness of the trial court’s alter

- ego conclusion of law ; nonapplication of the fiduciary

- shield doctrine i s supported by conclusion of law 38, which is not addressed on appeal

. Norstrud’s reply brief claims that on pages 31 through 36 of his opening brief he challenged the trial court’s conclusion that the corporate
- officer

- committed

- torts
- for

- which

he

- could

- be

- held

- individually

- liable exception to the fiduciary

- shield doctrine did not apply , but those pages argue only that personal jurisdiction does not exist26

because plaintiff’s claims were based on alleged misrepresentations for which nonresident defendant corporate officer could be held individually liable, fiduciary

- shield doctrine did not apply); SITQ E.U., Inc. , 111 S.W.3d at 651 (“This evidence [of tortious activities directed at Texas] shows that Wener had sufficient minimum contacts with Texas to support the exercise of specific jurisdiction over him individually, even if all of his activities directed towards Texas were done in his capacity as Canderel’s chairman, CEO, and sole director.”) ; D.H. Blair Inv. Banking Corp. , 97 S. W .3d at 278; see also Calder , 465 U.S. at 790, 1047 S. Ct. at 1487. The trial court’s unchallenged or legally

- sufficient findings support its conclusions of law that Nor strud is subject to its specific jurisdiction and that the fiduciary

- shield doctrine does not shield him. See Rischon Dev. Corp

. , 242 S.W.3d at 166 (holding that we review the trial court’s conclusions of law to determine their correctness based on the facts); Cotton, 171 S.W.3d at 546 (holding that appellate court will u phold the trial court’s special

- appearance ruling if it can be sustained based on any conclusions of law supported by the evidence).
4 . Fair Play and Substantial Justice Lastly, the final step of our analysis requires us to determine the propriety of the trial court’s conclusion of law that its e xercise of persona l jurisdiction over

over Norstrud because he did not sign any agreement in his individual capacity. See , e

. g

. Colton , 17 1 S.W.3d at 546 (requiring appellate court to uphold judgment on any correct legal theory supported by findings of fact).27

Norstrud comport s with traditional notions of fair play and substantial justice. See Burger King , 471 U.S. at 476, 105 S. Ct. at 2184; BMC Software Belg., N.V. , 83 S.W.3d at 795. When, as here, the trial court has determined that the defendant

–– Norstrud

–– has purposefully directed activities at forum residents, it then becomes the defendant’s burden to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King , 471 U.S . at 477, 105 S. Ct. at 2184

– 85; see Spir Star AG , 310 S.W.3d at 878

– 79. Norstrud did not present such a compelling case in his special appearance , in the special

- appearance h earing before the trial court, or in his brief on appeal. See Burger King , 471 U.S. at 477, 105 S. Ct. at 2184

– 85 (establishing that it is the defendant’s burden to present a compelling argument defeating jurisdiction on fair

- play and substantial

- justice grounds); Spir Star , 310 S.W.3d at 878

– 79 (same); Guardian Royal , 815 S.W.2d at 231 (noting that only in rare cases will jurisdiction not comport with fair play and substantial justice once minimum contacts exist); D.H. Blair Inv. Banking Corp. , 97 S.W.3d at 278 (same). And supporting the trial court’s finding that the exercise of s pecific jurisdiction over Norstrud comports with traditional notions of fair play and substantial justice are i ts findings or conclusions that the burden on Norstrud of defending a lawsuit in Texas is not too great, Texas has an interest in adjudicating th e matter in its courts, and the Cicurs have an interest in obtaining convenient and effective relief in the state where th ey are residents and where28

the a greements were intended to be performed. See G uardian Royal , 815 S.W.2d at 231 ( listing these factors for use in determining whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice). Thus, Norstrud fail ed to satisfy his burden of presenting a compelling case showing that his is the rare case in which m inimum contacts exist but jurisdiction violates fair play and substantial justice. In summary, having determined that the long

- arm statute authorizes the assertion of personal jurisdiction over Norstrud in Texas ; Norstrud had the requisite minimum contacts with Texas and purposefully availed himself of the privilege and benefits of conducting business in Texas ; the Cicurs ’ claims against Norstrud arise f r o m and are related to his contacts with Texas; the fiduciary

shield doctrine does not apply to protect Norstrud from the exercise of specific jurisdiction because even if such contacts were performed in a corporate capacity , the Cicurs produced evidence that Norstrud had en gaged in tortious or fraudulent conduct for which he may be held personally liable ; a nd the trial court’s exercise of personal jurisdiction over Norstrud comports with traditional notions of fair play and substantial justice, we overrule Norstrud’s second issue claiming that the trial court erred by concluding specific personal jurisdictio n exists over Norstrud in Texas.29 VI I
. C ONCLUSION Having overruled Nor strud’s two issues, we affirm the trial court’s order denying Norstrud’s special appearance. /s/ Sue Walker SUE WALKER JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ. DELIVERED: August 13, 2015