Todd Enright v. Asclepius Panacea, LLC Asclepius Panacea GP, LLC Daily Pharmacy, LLC Daily Pharmacy GP, LLC And Toth Enterprises II, P .A. D/B/A Victory Medical Center
03-15-00348-CV
| Tex. App. | Sep 28, 2015Background
- VMC (plaintiffs) purchased two pharmacy locations from QVL and later sued Todd Enright (nonresident, New Hampshire) alleging pre-transaction fraud/securities fraud and post-transaction torts (tortious interference, conversion, money had and received, accounting).
- The trial court denied Enright’s special appearance (challenge to personal jurisdiction); Enright appealed and filed this reply brief asking reversal and dismissal for lack of personal jurisdiction.
- VMC’s asserted bases for jurisdiction: (a) alleged misrepresentations Enright made on phone calls before the sale, and (b) post-closing communications and directions Enright gave concerning QVL’s handling of Transition Services Agreement (TSA) payments.
- Enright contends the record contains only a vague, single affidavit (Franklin) alleging unspecified misrepresentations and communications; no documentary corroboration or specific statements are offered.
- Enright argues QVL’s credit decisions were controlled by White Winston (creditor) and others in Boston/Massachusetts, not by Enright individually in Texas; thus the acts giving rise to VMC’s claims did not occur in Texas.
- Enright further argues that even if contacts existed, they do not constitute purposeful availment or a substantial connection to VMC’s claims, and VMC’s suit is an attempt to avoid mandatory Massachusetts forum-selection clauses by artful pleading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held (as argued in brief) |
|---|---|---|---|
| Whether pre-transaction fraud allegations provide acts "in Texas" under Texas long-arm statute | Franklin’s affidavit shows Enright made fraudulent misrepresentations by phone that induced the purchase | Franklin’s affidavit is vague, identifies no specific statements or corroborating evidence; insufficient to show tortious acts occurred in Texas | Trial-court implied findings lack legally/factually sufficient evidence; should not support jurisdiction |
| Whether post-transaction tort claims (interference, conversion, money had and received) arise from acts in Texas | Enright directed QVL’s agents in Texas about TSA execution and payments; supervised QVL attorney and bookkeepers | Communications concerned White Winston’s credit decisions; Enright lacked individual power to authorize/withhold credit; key acts occurred outside Texas | Record shows no tortious acts by Enright in Texas; insufficient for long-arm statute |
| Whether Enright purposefully availed himself of Texas such that exercise of jurisdiction comports with due process | Enright communicated with Texas parties, referred to a location as "our licensed store," and had a personal interest in the TSA | Contacts were initiated by QVL/Collins, not Enright; isolated communications and ambiguous emails do not show seeking a Texas benefit or profit | Enright did not purposefully avail himself; due-process minimum contacts/substantial relation lacking |
| Whether permitting VMC’s suit in Texas (despite Massachusetts forum clauses) violates fair play and substantial justice | VMC reframes contract-related disputes as torts against an individual to avoid Massachusetts forum | VMC’s artful pleading seeks to evade mandatory Massachusetts jurisdiction and imposes unfair cross-country litigation on Enright | Allowing suit in Texas would offend traditional notions of fair play; forum-shopping disfavors jurisdiction in Texas |
Key Cases Cited
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (implied findings supported by evidence may be challenged for sufficiency)
- Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653 (Tex. 2010) (long-arm statute requires acts giving rise to tort claims to occur in Texas)
- Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013) (sufficient jurisdictional contacts where defendants attended Texas meetings tied to the claims)
- Camac v. Dontos, 390 S.W.3d 398 (Tex. App.—Dallas 2012) (multiple in-state misrepresentations and systematic communications supported jurisdiction)
- Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005) (only defendant’s contacts with forum count for purposeful availment analysis)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (requirement of substantial connection between contacts and operative facts)
- In re Int’l Profit Assocs., Inc., 274 S.W.3d 672 (Tex. 2009) (artful pleading cannot be used to evade forum-selection clauses)
- TeleVentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900 (Tex. App.—Austin 2000) (focus on relationship among nonresident defendant, forum, and litigation for specific jurisdiction analysis)