Nevada National Advertising, Inc., and Robert Sussman v. Silverleaf Resorts, Inc.
05-16-00694-CV
| Tex. App. | Feb 17, 2017Background
- Nevada National Advertising, Inc. (NNA), a Nevada corporation, and its sole owner/officer Robert Sussman solicited timeshare owners through a marketing vendor (Aston) and obtained contracts and limited powers of attorney from multiple Texas timeshare owners to negotiate releases.
- NNA secured 37 Texas clients (including eight Silverleaf customers), sent welcome and update letters to clients, and sent demand letters to Silverleaf in Texas invoking Texas law and directing Silverleaf to cease contacting clients.
- Some demand letters and other correspondence were drafted or edited by Sussman; NNA employed at least one Texas-licensed attorney who signed correspondence.
- Silverleaf (a Texas corporation) sued NNA and Sussman for tortious interference with contracts/prospective relations, defamation, business disparagement, and civil conspiracy.
- NNA and Sussman filed a special appearance contesting personal jurisdiction; the trial court denied it. The court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Silverleaf) | Defendant's Argument (NNA/Sussman) | Held |
|---|---|---|---|
| Whether NNA has sufficient minimum contacts with Texas for specific jurisdiction | NNA purposefully availed itself by hiring Aston to solicit Texas owners, entering contracts and powers of attorney with Texas residents, sending letters invoking Texas law, and negotiating with Silverleaf in Texas | NNA contends it did not directly market to Texans; Aston’s unilateral acts brought clients to NNA; contacts were random/fortuitous | Held: NNA established purposeful availment and minimum contacts; Silverleaf’s claims arise from those contacts, so specific jurisdiction exists |
| Whether Sussman can be haled into Texas individually (fiduciary/corporate shield) | Sussman was the guiding spirit: sole owner/officer, directed hiring, edited letters, wrote some demand letters, and benefitted from profits—thus individually liable for torts | Sussman invokes fiduciary shield: actions were corporate, not personal; he cannot be sued individually for corporate acts | Held: Fiduciary shield does not protect Sussman. His personal involvement in tortious conduct subjects him to specific jurisdiction |
| Whether exercising jurisdiction would offend fair play and substantial justice | N/A (Silverleaf relies on forum’s interest and plaintiffs’ convenience) | NNA/Sussman argue burden and inefficiency of litigating in Texas (nonresidents) | Held: Exercise of jurisdiction comports with fair play and substantial justice given defendants’ purposeful contacts; Texas has interest and forum is convenient |
Key Cases Cited
- Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt. VI, L.P., 493 S.W.3d 65 (Tex. 2016) (federal due process frames Texas long-arm reach)
- Searcy v. Parex Res., Inc., 496 S.W.3d 58 (Tex. 2016) (minimum contacts and purposeful availment standard)
- Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013) (quality/nature of contacts governs specific jurisdiction)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (substantial connection between forum contacts and operative facts required)
- Spir Star AG v. Kimich, 310 S.W.3d 868 (Tex. 2010) (factors for fair play and substantial justice)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (contacts that create substantial connection may subject defendant to suit)
- Asahi Metal Ind. Co. v. Superior Court, 480 U.S. 102 (1987) (advertising and establishing channels of communication can indicate purposeful availment)
- Stull v. LaPlant, 411 S.W.3d 129 (Tex. App.—Dallas 2013) (corporate agents not automatically haled in individually absent personal wrongdoing)
- Tabacinic v. Frazier, 372 S.W.3d 658 (Tex. App.—Dallas 2012) (officers individually liable where they are central figures in tortious acts)