Steven Wormald and Elizabeth Anne Wormald v. Norman Villarina, Doug Wertheimer, Aaron Snegg and McGuffy Credit Facility 1, LLC
543 S.W.3d 315
| Tex. App. | 2017Background
- McGuffy Credit Facility 1, LLC (the lender) sued McGuffy-related borrowers and guarantors Steven and Elizabeth Wormald to collect on two promissory notes; the Wormalds counterclaimed against the lender and related individuals for fraud, defamation, business disparagement, breach of fiduciary duty, DTPA claims, fraudulent transfer, and conspiracy.
- Aaron Snegg, Norman Villarina, and Doug Wertheimer are California residents who manage ICECM, LLC (the sole manager of McGuffy Credit Facility); the Wormalds sued them personally alleging they controlled McGuffy Credit Facility and asserting alter-ego and tort theories.
- Snegg, Villarina, and Wertheimer filed special appearances asserting lack of personal jurisdiction in Texas; they initially filed unverified motions and later amended them with verifications.
- The trial court granted the special appearances; the Wormalds appealed arguing (1) the defendants waived the special appearances and (2) Texas courts had jurisdiction based on alter-ego, their tortious acts in Texas, and Villarina’s listing himself as a Texas registered agent.
- The court of appeals reviewed de novo, considered whether the Wormalds proved alter-ego or sufficient minimum contacts tying the defendants’ Texas activities to the operative facts, and whether any waiver or estoppel prevented the defendants from challenging jurisdiction.
Issues
| Issue | Plaintiff's Argument (Wormalds) | Defendant's Argument (Snegg/Villarina/Wertheimer) | Held |
|---|---|---|---|
| Waiver of special appearance | Counsel’s pre-amendment continuance request and a motion filed by related entities amount to general appearances waiving special appearances | Continuance request was consistent with challenging jurisdiction; motions were by entities, not the individuals, and individuals had not been served | No waiver — special appearances preserved |
| Alter-ego to impute McGuffy Credit Facility’s contacts | Defendants control and dominate entities; therefore corporate contacts should be imputed to them | Entities maintain separateness; affidavits and records show separate books, accounts, and officers | Alter-ego not proven; corporate contacts not imputed to individuals |
| Specific jurisdiction / minimum contacts (torts, fraud, meeting travel) | Defendants traveled to Texas, attended meetings, and engaged in communications related to the dispute — contacts relate to plaintiffs’ tort claims | Defendants’ Texas contacts were limited, business-related, and not substantially connected to the operative facts; affidavits deny actionable conduct in Texas | Minimum-contacts not established as to operative facts; no specific jurisdiction |
| Registered-agent listing and estoppel | Villarina listed himself as registered agent for Texas entities and thus purposefully availed himself or is estopped from denying jurisdiction | Villarina credibly averred it was a mistake and he is a California resident; Wormalds did not preserve estoppel argument at trial | Listing as registered agent (or mistake) insufficiently related to claims; estoppel not preserved and fails on the merits |
Key Cases Cited
- Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998) (unsworn special appearances are defective but may be cured by amendment)
- Exito Elecs. Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004) (general appearance analysis and waiver principles)
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (standard for special appearance review and alter-ego presumption)
- M&F Worldwide Corp. v. Pepsi–Cola Metro. Bottling Co., Inc., 512 S.W.3d 878 (Tex. 2017) (implying facts when trial court issues no findings)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (specific vs. general jurisdiction; substantial connection test)
- PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163 (Tex. 2007) (jurisdictional veil-piercing requires proof of parent control over internal operations)
- Knight Corp. v. Knight, 367 S.W.3d 715 (Tex. App.—Houston [14th Dist.] 2012) (evidence required to show domination and control)
- Dresser-Rand Group, Inc. v. Centauro Capital, S.L.U., 448 S.W.3d 577 (Tex. App.—Houston [14th Dist.] 2014) (burden to negate jurisdiction and sufficiency of affidavits)
- Owens Corning v. Carter, 997 S.W.2d 560 (Tex. 1999) (residency and related proof issues)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (trial court may credit affidavits; standard for reviewing factual sufficiency)
- CKB & Associates, Inc. v. Moore McCormack Petroleum, Inc., 734 S.W.2d 653 (Tex. 1987) (estoppel principles in litigation context)