Credit Commercial de France, S.A. v. Morales

195 S.W.3d 209, 2006 Tex. App. LEXIS 1197, 2006 WL 332541
CourtCourt of Appeals of Texas
DecidedFebruary 15, 2006
DocketNo. 04-04-00813-CV
StatusPublished
Cited by12 cases

This text of 195 S.W.3d 209 (Credit Commercial de France, S.A. v. Morales) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Credit Commercial de France, S.A. v. Morales, 195 S.W.3d 209, 2006 Tex. App. LEXIS 1197, 2006 WL 332541 (Tex. Ct. App. 2006).

Opinion

OPINION

Opinion by

KAREN ANGELINI, Justice.

This is an accelerated, interlocutory appeal of the trial court’s order overruling the special appearances of Credit Commercial de France, S.A., Finely, S.A., and HSBC Private Banking, Ltd. f/k/a Han-delsfinanz-CCF Bank International, Ltd. Because we conclude that a Texas court cannot assert personal jurisdiction over any of these entities, we reverse the trial court’s order and render judgment dismissing the claims against them for want of jurisdiction.

PROCEDURAL BACKGROUND

Appellees Rosana Morales and Hugo Baxter (“Sharp investors”), Mexican nationals from Monterrey, Mexico, represent a class of investors from Mexico who invested money through Sharp Capital, Inc. (“Sharp”) and subsequently lost $50 million upon Sharp’s financial collapse. The Sharp investors allege that Appellants Credit Commercial de France, S.A. (“CCF”), Finely, S.A. (“Finely”), and HSBC Private Banking, Ltd. f/k/a Han-delsfinanz-CCF Bank International, Ltd. (“HF-CCFI”) assisted Sharp in its scheme to disguise Sharp’s true financial situation and the type of investments it was acquiring. The Sharp investors sued appellants for violations of the Texas Securities Act, aiding and abetting Sharp to commit violations of the Texas Securities Act, conspiracy to violate the Texas Securities Act, participation in breach of fiduciary duty, aiding and abetting Sharp to commit fraud, conspiracy to commit fraud, aiding and abetting Sharp to commit conversion, conspiracy to commit conversion, fraudulent conveyance, fraud in stock transactions, negligence, gross negligence, and civil RICO.

In response, CCF, Finely, and HF-CCFI all filed special appearances, arguing that they are not subject to personal jurisdiction in Texas. After a three-day [213]*213hearing, the trial court overruled their special appearances, determining that they are subject to personal jurisdiction in Texas. CCF, Finely, and HF-CCFI appeal the trial court’s order.

Factual BackgRound

Sharp, a Texas Corporation, was formed in 1986 by Mauricio Gutierrez and executives of Casa de Bolsa Arka (“Arka”), a Mexican investment brokerage owned and controlled by Humberto Lobo and his family, who also owned the Mexican industrial conglomerate Grupo Protexa (“Protexa”). The executives of Arka established Sharp in San Antonio, Texas as the American finance branch for Arka. Sharp was charged with administering Arka’s clients’, Lobo’s, and Protexa’s non-Mexican investments. Sharp was registered with the Securities and Exchange Commission (“SEC”) as an investment advisor under the Investment Advisor’s Act, and Gutierrez served as President and Managing Director of Sharp. Although founded in San Antonio, Sharp’s administrative office later moved to Irving, Texas, where Gutierrez resided. Although the Lobo family helped found Sharp, in 1994, the Lobo family transferred its interest in Sharp to Gutierrez.

Sharp provided investment advice to Mexican national investors. The investors would establish account agreements with Sharp and would send money to Sharp for investment purposes. At first, NationsBank acted as the custodian for the investors’ funds and assets, while Sharp possessed a power of attorney from each investor, allowing it to engage in securities transactions on their behalf. Later, Sharp itself became the custodian of the investors’ funds and investment assets.

Here, Rosana Morales and Hugo Baxter represent a class of Sharp investors. Both are Mexican citizens who reside in Monterrey, Mexico, and both invested money in Sharp and signed custodial agreements with Sharp. According to the Sharp investors, as Mexican nationals, investing through Texas-based Sharp was attractive because it allowed them to invest in dollar-denominated instruments, thereby avoiding the insecurity associated with Mexico’s frequent currency devaluations. And, according to the Sharp investors, they believed that Sharp was investing their money in low-risk investments. In fact, however, Sharp was investing their money in high-risk investments without their knowledge.

Although Sharp did not have a license in the United States to operate a mutual fund, it operated like one, pooling the investors’ funds. In 1993, Sharp was the subject of a surprise SEC regulatory audit. As a result of its review, on October 5, 1993, the SEC sent Gutierrez a letter informing him that Sharp’s practices were in violation of U.S. securities law. In particular, the SEC found that “Sharp’s pooling of client funds for the purchase of Eurobonds and the making of loans” met the definition of a “mutual fund” under the Investment Company Act. The SEC also criticized Sharp for engaging in leveraged transactions using its clients’ funds, noting that neither the leveraged transactions nor the risk associated with them had been disclosed to or approved by Sharp’s clients. The SEC warned Gutierrez that continuing these types of activities could violate the anti-fraud section of the Advis- or’s Act.

In response to the SEC’s investigation and warnings, Gutierrez began looking for a way to evade SEC regulation and U.S. securities laws. Gutierrez’s plan was to create an offshore company that he could control from Texas but would be located outside of the SEC’s jurisdiction. He [214]*214would transfer all of Sharp’s assets to the new offshore entity, which in turn, would become a “service provider,” sending Sharp investment confirmations. Sharp would serve as the investment advisor to the offshore company. When Nations-Bank refused to continue serving as the lender of record, Sharp began looking for another lender registered with the Mexican Treasury Department, Hacienda,1 to act as the lender of record on the “participated loans transactions” in order to roll over the existing NationsBank loans to the new lender. CCF, a bank registered with Hacienda, and its subsidiary, Finely, suited Sharp’s needs. According to Gutierrez, CCF and its subsidiary, Finely, were attractive partners because of their presence and experience in the international markets, especially in emerging markets.

CCF is a French commercial bank headquartered in Paris, France. Finely, is a subsidiary of CCF and has its only office in Paris. During the 1990s, Finely arranged financing in the emerging markets, including loans with CCF and other banks. Neither CCF nor Finely has ever maintained assets, a bank account, a tax domicile, representatives or a registered agent in Texas.

Roman Kamir, the Director of Finely, first met Gutierrez in Mexico in 1995 while there on business. Gutierrez contacted Kamir and Christian Deseglise, Kamir’s subordinate, inquiring whether CCF could be willing to act as the lender of record. According to Gutierrez, Kamir and Dese-glise informed him that CCF was registered with Hacienda and would be willing to act as the lender. Thus, in November 1995, Gutierrez traveled to Paris, France to meet with Kamir and Deseglise. At that meeting, Gutierrez informed Kamir and Deseglise that he was looking for an offshore service provider that would hold Sharp’s assets and would send account statements to Sharp. According to Gutierrez, Kamir recommended creating a new entity in the Bahamas because CCF already had its subsidiary, HF-CCFI, in the Bahamas.

HF-CCFI is a Bahamian banking corporation whose headquarters and principal place of business, personnel, facilities, and assets are located in Nassau, the Bahamas.

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195 S.W.3d 209, 2006 Tex. App. LEXIS 1197, 2006 WL 332541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/credit-commercial-de-france-sa-v-morales-texapp-2006.