Harry Sargeant III and BTB Refining, LLC v. Mohammad Anwar Farid Al-Saleh

Opinion

ACCEPTED 13-15-00327-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 9/28/2015 3:02:37 PM Dorian E. Ramirez CLERK

Case No. 13-15-00327-CV

FILED IN 13th COURT OF APPEALS In The Thirteenth Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS Corpus Christi, Texas 9/28/2015 3:02:37 PM DORIAN E. RAMIREZ Clerk BTB REFINING, LLC

Appellant,

v.

MOHAMMAD ANWAR FARID AL-SALEH,

Appellee.

On Appeal from No. 2014-DCV-5860-G, 319th Judicial District Court, Nueces County, Texas, Hon. David V. Stith

BRIEF OF APPELLEE

NOLAN C. KNIGHT* Daniel D. Pipitone TX 24027125 TX 16024600 E-MAIL: nknight@munsch.com E-MAIL: dpipitone@munsch.com MUNSCH HARDT KOPF & HARR, P.C. Kenneth W. Bullock, II 3800 Lincoln Plaza TX No. 24055227 500 North Akard E-MAIL: kbullock@munsch.com Dallas, Texas 75201 MUNSCH HARDT KOPF & HARR, P.C. Telephone: (214) 855-7500 Pennzoil Place Facsimile: (214) 855-7584 700 Milam Street, Suite 2700 Houston, Texas 77002 Telephone: (713) 222-1470 Facsimile: (713) 222-1475

ORAL ARGUMENT REQUESTED

* Lead appellate counsel I. TABLE OF CONTENTS

Page(s) I. TABLE OF CONTENTS .................................................................................i

II. INDEX OF AUTHORITIES ......................................................................... iii

III. STATEMENT OF THE CASE ....................................................................... v

IV. STATEMENT OF FACTS .............................................................................. 1

A. The Lower Court Enjoined Fraudulent Transfer of Assets ................... 1

B. BTB has not challenged the Meritorious Justifications for the Injunctive Relief .............................................................................. 3

V. SUMMARY OF ARGUMENT ....................................................................... 6

VI. ARGUMENT AND AUTHORITIES ............................................................. 8

A. Injunctive Relief is Appropriate to Prevent Fraudulent Dissipation of Assets ............................................................................. 8

1. Applicable legal principles – Courts’ equity powers to prevent avoidance of judgments................................. 8

2. The Texas Uniform Fraudulent Transfers Act in any event authorizes even “prejudgment” injunctive relief ......................................................................... 10

3. BTB’s references to attachment and garnishment authorities are misguided .......................................................... 18

B. Alter Ego is not Equivalent to an Attempt to Satisfy a Judgment “out of” an LLC Membership Interest................................ 22

1. Applicable legal principles ....................................................... 22

2. BTB is directly liable as an alter ego ........................................ 23

VII. PRAYER........................................................................................................ 24

i VIII. CERTIFICATE OF COMPLIANCE ............................................................ 26

IX. CERTIFICATE OF SERVICE ...................................................................... 27

ii II. INDEX OF AUTHORITIES

Page(s) CASES Animale Group Inc. v. Sunny’s Perfume, Inc., 256 Fed. Appx. 707 (5th Cir. 2007).................................................................... 22

Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)................................................................................... 6

Deckert v. Independence Shares Corp., 311 U.S. 282 (1940) ......................................................................................12, 22

Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991) ................................................................................ 3

Frontera Generation Ltd. P’ship v. Mission Pipeline Co., 400 S.W.3d 102 (Tex. App.—Corpus Christi 2012, no pet.) ............................... 4

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) ................................................................................12, 18, 22

Jackson Law Office v. Chappell, 37 S.W.3d 15 (Tex. App.—Tyler 2000, no pet.) ................................................ 19

JSC Foreign Economics Ass’n Technostroyexport v. International Development and Trade Services, Inc., 295 F. Supp. 2d 366 (S.D. N.Y. 2003) ............................................................... 20

Martin v. U.S. Merch. Fin. Group, Inc., No. 05–13–00999–CV, 2014 WL 6871392....................................................8, 22

Metra United Escalante, L.P. v. Lynd Co., 158 S.W.3d 535 (Tex. App.—San Antonio 2004, no pet.) .........................passim

Shook v. Walden, 368 S.W.3d 604 (Tex. App.–Austin 2012, no pet.) ...................................... 23-24

Stuart v. Spademan, 772 F.2d 1185 (5th Cir. 1985) .............................................................................. 2

iii U.S. Lawns, Inc. v. Castillo, 347 S.W.3d 844 (Tex. App.—Corpus Christi 2011, no pet.) ............................... 3

United Bank Metro v. Plains Overseas Group, Inc., 670 S.W.2d 281 (Tex. App.—Houston [1st Dist.] 1983, no writ) ............... 14-15

Wilson v. Davis, 305 S.W.3d 57 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ........................ 19

Wm. Passalacqua Builders, Inc. v. Resnick Dev. South, Inc., 933 F.2d 131 (2nd Cir. 1991) ............................................................................. 20

Wohlstein v. Aliezer, 321 S.W.3d 765 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ..................... 2

STATUTES TEX. BUS. ORG. CODE § 101.112 .......................................................................22, 23

TEX. BUS. & COM. CODE § 24.005 ............................................................................. 2

TEX. BUS. & COM. CODE § 24.006 ............................................................................ 2

TEX. BUS. & COM. CODE § 24.008 ........................................................10, 11, 15, 16

TEX. CIV. PRAC. & REM CODE § 35.003..................................................................... 1

TEX. CIV. PRAC. & REM CODE § 65.001................................................................... 20

TEX. CIV. PRAC. & REM. CODE § 65.011..............................................................9, 15

OTHER AUTHORITIES TEX. R. APP. PROC. 33.1(a)(1) .................................................................................... 5

iv III. STATEMENT OF THE CASE Appellee Mohammad Anwar Farid Al-Saleh secured valid and enforceable

judgments against defendant below Harry Sargeant, III; and in the proceedings

before the lower court, sought equitable remedies to satisfy the judgments with

assets Mr. Sargeant has sheltered in an “alter ego” entity known as BTB Refining,

LLC (“BTB”). See Clerk’s Record (“C.R.”), 38 – 71. After a two-day hearing,

during which the lower court heard extensive testimony from multiple fact and

expert witnesses and admitted more than 100 exhibits, the lower court found Mr.

Sargeant was attempting to fraudulently transfer the assets in question out of the

country to avoid satisfaction of the judgments. (C.R. at 337 – 339). The court

therefore entered a temporary injunction prohibiting transfer of the assets pending

the trial on the merits. Id.

BTB herein attempts to upset the lower court’s injunctive relief, without

challenging the meritorious bases for the relief—but instead by mischaracterizing

the nature of relief granted by the court. BTB’s contentions fail as a matter of law.

v IV. STATEMENT OF FACTS

A. The Lower Court Enjoined Fraudulent Transfer of Assets In the lower court, Mr. Al-Saleh established he has valid and enforceable

fraud judgments from 2011 against Mr. Sargeant, as well as one of Mr. Sargeant’s

close business partners, Mustafa Abu-Naba’a (“Abu-Naba’a”), and their jointly-

owned company, International Oil Trading Company, LLC; originally entered by a

Florida court, then lawfully domesticated in Texas, for in excess of $32,370,243.89

(with interest that continues to accrue). (C.R. at 5 – 26). See also TEX. CIV. PRAC.

& REM CODE § 35.003(b).1 He further established BTB is Mr. Sargeant’s “alter

ego,” in part because the United States District Court for the Southern District of

Texas found precisely that in a case styled PDVSA Petroleo, S.A. v. Trigeant, Ltd.,

Case No. 2:09-cv-00038, in which that court held it could exercise personal

jurisdiction over Mr. Sargeant (a Florida resident) because he “exert[ed] such

dominion and control over . . .” BTB (a Texas resident) such that “in reality they

are the same . . .” (C.R. at 99, 112);2 and based on significant additional evidence

presented during the temporary injunctive hearing in this matter. (C.R. at 338).

1 The judgments included a $28,800,000 award of damages, $85,489.97 in costs, and prejudgment interest of $3,484,753.92. 2 In its Brief of Appellant, BTB provides a detailed discussion of the facts that gave rise to the PDVSA Petroleo litigation, pp. 3 – 5; without noting the alter ego finding the court made regarding BTB and Mr. Sargeant in the context of personal jurisdiction. Indeed, in a parallel, and redundant mandamus action BTB has filed in this Court (Case No. 13-15-00395-CV), BTB has suggested the PDVSA Petroleo holding is not indicative of BTB’s alter ego status (see 9/16/15 “Reply,” pp. 2 – 3; Case No. 13-15-00395-CV)—but the Southern District of Texas

1 The lower court, as a result, held Mr. Al-Saleh is entitled to a temporary

injunction forbidding the offshore transfer and disposition of assets Mr. Sargeant

holds through his wholly-owned alter ego BTB—because through an elaborate

scheme, Mr. Sargeant was at the time attempting to move the assets to another

company he jointly owns with judgment debtor Abu-Naba’a, created under the

laws of the Bahamas and operating in the Dominican Republic; thus, placing the

assets beyond the jurisdiction of the United States. (C.R. at 338). This attempt to

circumvent the preexisting judgments was fraudulent and unjust by any measure—

but specifically violated principles codified in Texas’ adoption of the “Uniform

Fraudulent Transfers Act,” TEX. BUS. & COM. CODE §§ 24.005, 24.006; which is

“designed to prevent a debtor from defrauding its creditors by moving assets out of

reach.” Wohlstein v. Aliezer, 321 S.W.3d 765, 776 (Tex. App.—Houston [14th

Dist.] 2004, no pet.).

The lower court enjoined Mr. Sargeant’s attempt to consummate the

fraudulent scheme—initially by way of temporary restraining order issued on June

could penetrate BTB’s purported corporate veil and exercise personal jurisdiction over Mr. Sargeant only because of a legal principle that the citizenship of the business entity (BTB) is attributed to its member (Sargeant) because they are “in reality . . . the same . . . .” Cf. Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985) (“the fiduciary-shield doctrine—which holds that an individual’s transaction of business within the state solely as a corporate officer does not create personal jurisdiction over that individual though the state has in personam jurisdiction over the corporation[]—does not apply when courts are willing to disregard the corporate entity, usually on the theory that the individual or subsidiary is the alter ego of the corporation or parent.”) (emphasis added).

2 4, 2015; and affirmed in a July 2, 2015 temporary injunction issued after a two-day

evidentiary hearing. (C.R. at 163 – 165, 337 – 339).

B. BTB has not challenged the Meritorious Justifications for the Injunctive Relief BTB has not raised in its Brief of Appellant, and therefore has waived, any

challenge to the soundness of the lower court’s ruling that Mr. Al-Saleh “will

suffer an immediate and irreparable harm and injury if a Temporary Injunction

does not issue and that [Mr. Al-Saleh] has no adequate remedy at law.” (C.R. at

338). BTB likewise failed to raise or challenge the lower court’s well-founded

justifications for issuing injunctive relief, including inter alia, its findings that

“Defendant BTB is the alter ego of Defendant Sargeant . . .” and “property and

assets will be moved, wasted, dissipated or otherwise transferred beyond the

jurisdictional reach of this or any other United States Court if not immediately

restrained based upon, among other things, testimony that a significant amount of .

. . proceeds have already been transferred by BTB.” (C.R. at 338) (emphasis

added).

Having failed to challenge these meritorious justifications for the temporary

injunction, BTB has waived review of the holdings in these proceedings. See

generally U.S. Lawns, Inc. v. Castillo, 347 S.W.3d 844, 846 (Tex. App.—Corpus

Christi 2011, no pet.) (“[g]rounds of error not asserted by points of error are

considered waived on appeal.”) (quoting Fort Bend County Drainage Dist. v.

3 Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991)). But in no event would there be

grounds to overturn the temporary injunction on the present record, because the

relief must be affirmed so long as there is “some evidence” or “more than a

scintilla” of evidence warranting injunctive relief. See Frontera Generation Ltd.

P’ship v. Mission Pipeline Co., 400 S.W.3d 102, 108 (Tex. App.—Corpus Christi

2012, no pet.).

Clearly that is the case here. Mr. Al-Saleh proved BTB is Mr. Sargeant’s

alter ego. See, e.g., Court Reporter Record (“Cr.R.”), Vol. 3, 132:16-133:4; Vol. 3,

134:3-11; Vol. 3, 140:9-141:2 (evidence that although Mr. Sargeant purported to

draw no more than a $225,000.00 annual salary from BTB—BTB in reality

funneled funds through an intermediary to benefit Mr. Sargeant, including

payments to a vendor “building Mr. Sergeant his private yacht”; to pay a

$50,000.00 American Express bill on a card actually issued in Mr. Sargeant’s

name; payment of yet another American Express bill for Mr. Sargeant totaling an

eye-popping $298,592.58; and verifiable cash payments, for instance, $75,000.00

to Mr. Sargeant and his wife). Mr. Al-Saleh in fact proved BTB has been used in

other schemes to fraudulently procure or shield Mr. Sargeant’s assets not just from

Mr. Al-Saleh, but employed by Mr. Sargeant as a matter of practice to defraud a

series of business partners or interests. See, e.g., (Cr.R. at Vol. 2, 55:8-20)

(evidence regarding the fraudulent scheme litigated in the PDVSA Petroleo

4 litigation discussed above, and Mr. Sargeant’s dishonest attempts to disavow his

connection to BTB).3

Mr. Al-Saleh further proved Mr. Sargeant actively was attempting to use

BTB as a pass-through entity, to funnel millions of dollars to the Bahamian entity

(which Mr. Sargeant co-owns with judgment debtor Abu-Naba’a) under the pretext

of a “Zero Coupon Promissory Note,” that in substance would have transferred

staggering sums to the Bahamian entity with absolutely no reciprocal value or

consideration exchanged with BTB. (C.R. at 152 – 156) (Zero Coupon Promissory

Note).4

BTB failed to object to any of the evidence proving these matters, which

was presented to the lower court, and therefore in no event has preserved a

challenge to the record materials proving the mechanics of the fraudulent

avoidance collectively attempted by BTB and Mr. Sargeant. Cf. TEX. R. APP.

PROC. 33.1(a)(1) (“As a prerequisite to presenting a complaint for appellate review,

the record must show that . . . the complaint was made to the trial court by a timely 3 The Southern District of Texas’ findings in PDVSA Petroleo are dispositive of BTB and Mr. Sargeant’s fraudulent conduct, because the court made express findings on the issue. See, e.g., (C.R. at 115) (“Plaintiff established by a preponderance of the evidence all of the elements for a claim of constructive fraud . . . .”). 4 Mr. Al-Saleh also developed evidence of fraudulent, or at minimum highly irregular conduct within BTB that went unchecked by Mr. Sargeant—foreclosing any question the company was not operated as a credible business enterprise. See, e.g., (Cr.R. at Vol. 3, 111:2-24) (evidence a high-level BTB employee distributed $1.8 million from BTB without authorization, likely as an investment in a company owned by the employee; but BTB failed to initiate any discernible disciplinary or legal actions against the employee even after Mr. Sargeant confirmed the incident by way of an outside accounting firm).

5 request, objection, or motion that . . . stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make

the trial court aware of the complaint . . . .”) (emphasis added). Accordingly, the

evidentiary record before this Court is uncontested, further amplifying that the

soundness of the lower court’s decision to enter injunctive relief to halt Mr.

Sargeant and BTB’s fraudulent scheme simply cannot be challenged by way of this

appeal. Cf. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (holding

a lower court abuses its discretion to enter injunctive relief only if its decision

could be deemed “so arbitrary that it exceeded the bounds of reasonable

discretion.”).

BTB therefore is limited to asserting, and has asserted only what it attempts

to treat as a legal defect with the temporary injunction, contending it somehow

operates as an impermissible prejudgment “writ of attachment.” As a matter of

law, BTB’s characterization of the injunctive relief is incorrect—and in substance,

the relief sought could not be granted without upsetting the lower court’s core

factual findings on alter ego; which BTB has not challenged (nor could

successfully challenge) in this appeal.

V. SUMMARY OF ARGUMENT BTB in effect concedes both it and Mr. Sargeant are the bad actors

described in the lower court’s temporary injunction—by failing to offer this Court

6 any basis to reject the lower court’s findings on precisely that issue. (C.R. at 338).

It therefore limits itself to appellate arguments entirely contingent upon a

characterization of the temporary injunctive relief in the underlying lawsuit that

simply is inaccurate. BTB miscasts the legally permissible and factually warranted

temporary injunction, as a prejudgment “writ of attachment” on BTB’s assets,

based on concern those assets will be fraudulently transferred to avoid an

obligation of BTB’s sole member, Harry Sargeant, III. In support of this

characterization, almost without exception, BTB cites case authorities wherein

plaintiffs sought to “seize” defendants’ assets before there was a judgment of any

kind, and where there was no question of alter ego liability for a preexisting

judgment.

That is why BTB’s characterization is unsupportable on the record. In the

underlying dispute, final judgments already have been entered against Mr.

Sargeant, and the sole issue of consequence is BTB and Mr. Sargeant are the same

person in the eyes of the law, by virtue of alter ego principles. The United States

District Court for the Southern District of Texas previously found as much (see

note 2 supra), and the lower court reached the same conclusion following the

evidentiary hearing on the merits.

The preexisting judgments therefore are binding on Mr. Sargeant and BTB

in tandem. Mr. Al-Saleh has not sought, and the lower court did not authorize

7 anything that can be characterized as a prejudgment “seizure” of a non-debtor’s

assets. BTB indeed has not propounded any evidence or argument whatsoever

demonstrating how it somehow is being prevented for exercising dominion over

the monetary assets at issue—save only for its inability to transfer the funds in

avoidance of lawful judgments, or placing them beyond the jurisdiction of the

lower court in what transparently is a fraudulent scheme.

The lower court found BTB is Mr. Sargeant (thus a single judgment debtor),

and pending a final trial ruling conclusively resolving as much—the court enjoined

Mr. Sargeant (through BTB) from fraudulently dissipating assets to circumvent the

judgments. This does not constitute a writ of attachment, and in no event can BTB

seriously contend a trial court is prohibited from exercising its powers of equity (in

an action seeking exclusively equitable relief) to prevent a fraudulent scheme

contemplated to avoid judicial process.

VI. ARGUMENT AND AUTHORITIES

A. Injunctive Relief is Appropriate to Prevent Fraudulent Dissipation of Assets

1. Applicable legal principles – Courts’ equity powers to prevent avoidance of judgments

It is beyond peradventure that alter ego is an appropriate equitable remedy to

collect on a preexisting judgment entered against a judgment debtor. See, e.g.,

Martin v. U.S. Merch. Fin. Group, Inc., No. 05–13–00999–CV, 2014 WL

6871392, **1, 4 – 7 (Tex. App.—Dallas Dec. 8, 2014, no pet.) (affirming trial

8 court finding of alter ego liability against a corporation, for purposes of enforcing a

preexisting California judgment for breach of contract against the other alter ego

entity). It likewise is beyond peradventure that an injunctive remedy is appropriate

to prevent an obligated party, or its alter ego, from disposing of assets in avoidance

of even an impending judgment actually related to the assets. See, e.g., TEX. CIV.

PRAC. & REM. CODE § 65.011(2) (“A writ of injunction may be granted if . . . a

party performs or is about to perform or is procuring or allowing the performance

of an act relating to the subject of pending litigation, in violation of the rights of

the applicant, and the act would tend to render the judgment in that litigation

ineffectual . . . .”) (emphasis added).

Mr. Al-Saleh has invoked equity for precisely these purposes—which are

dispositive of BTB’s attempt to, first, create the fiction that the lower court in

reality issued a prejudgment writ of attachment; only to criticize what is a fiction

of BTB’s own creation. BTB’s abstract discussion of the limitations on certain

forms of prejudgment relief simply has no relevance to these equitable proceedings

to preserve assets specifically identified to satisfy preexisting and lawful

judgments against Mr. Sargeant, and which by law apply with equal force to his

alter ego, BTB. The $21,828,446.65 enjoined by the lower court are the assets that

are the subject of the underlying litigation, cf. Brief of Appellant, pp. 12, 14, 21,

because Mr. Al-Saleh initiated his equitable claims against BTB and Mr. Sargeant

9 in the proceedings below (and the lower court issued injunctive relief to prevent)

fraudulent dissipation of those assets. See, e.g. (C.R. at 40) (“A sales transaction is

scheduled to close on or about June 5, 2015 at which time Defendant BTB, and

ultimately Defendant Sargeant as Defendant BTB is merely his alter ego, would

ultimately receive approximately $52 million. . . . Plaintiff immediately seeks a

Temporary Restraining Order enjoining Defendants from disposing of, directing or

transferring away, or in any way removing the availability of funds sufficient to

satisfy Plaintiff’s judgments . . . .”).5

2. The Texas Uniform Fraudulent Transfers Act in any event authorizes even “prejudgment” injunctive relief

Even assuming arguendo Mr. Al-Saleh’s attempt to prevent BTB’s

fraudulent transfer somehow could be cleaved from equitable principles that

countenance relief against a judgment debtor and its alter ego; BTB still has not

articulated a legal defect with the relief granted by the lower court. BTB in fact

plainly ignores the statutory authorization for precisely such relief codified in the

Uniform Fraudulent Transfers Act.

Three distinct remedial provisions embrace the relief. Texas Business and

Commerce Code section 24.008(a)(2) provides: “In an action for relief against a

5 The $21,828,446.65 enjoined by the lower court before the money could be dispersed, corresponds with a portion of the $52 million referenced above. In the proceedings below, BTB opposes Mr. Al-Saleh’s discovery efforts regarding the present whereabouts of the balance of the $52 million.

10 transfer or obligation under this chapter, a creditor, subject to [defenses BTB has

not proved here], may obtain . . . an attachment or other provisional remedy

against the asset transferred or other property of the transferee in accordance with

the applicable Texas Rules of Civil Procedure and the Civil Practice and Remedies

Code relating to ancillary proceedings . . . .” (emphasis added).

Texas Business and Commerce Code section 24.008(a)(3)(A) independently

provides: “In an action for relief against a transfer or obligation under this chapter,

a creditor, subject to [defenses BTB has not proved here], may obtain . . . subject to

applicable principles of equity and in accordance with applicable rules of civil

procedure . . . an injunction against further disposition by the debtor or a

transferee, or both, of the asset transferred or of other property . . . .” (emphasis

added). Section 24.008(a)(3)(B) then provides an expansive catchall provision,

allowing a court to enter “any other relief the circumstances may require.”

(emphasis added).

BTB fails even to mention any one of these three mechanisms by which a

court is authorized to issue preliminary equitable relief in a dispute under the

Uniform Fraudulent Transfers Act. But this is precisely the context in which the

United States Supreme Court (cited by BTB on pages 7, 10 – 11, and 15 – 16 of its

Brief of Appellant for analogs to state law) deemed equitable relief appropriate

pending a final ruling:

11 the Act as a whole indicates an intention to establish a statutory right which the litigant may enforce in designated courts by such legal or equitable actions or procedures as would normally be available to him. Undoubtedly any suit to establish the civil liability imposed by the Act must ultimately seek recovery of the consideration paid . . . . But [the statute] states the legal consequences of conduct proscribed by the Act; it does not purport to state the form of action or procedure the claimant is to employ.

Moreover, in [the statute], specified courts are given jurisdiction ‘of all suits in equity and actions at law brought to enforce any liability or duty created by this subchapter’. The power to enforce implies the power to make effective the right of recovery afforded by the Act. And the power to make the right of recovery effective implies the power to utilize any of the procedures or actions normally available to the litigant according to the exigencies of the particular case.

Deckert v. Independence Shares Corp., 311 U.S. 282, 287 – 88 (1940) (emphasis

added).6

Texas courts, in turn, have approved temporary injunctions specifically

entered to prevent “prejudgment” transfer of assets in violation of the Uniform

Fraudulent Transfers Act. In Metra United Escalante, L.P. v. Lynd Co., for

6 The Supreme Court’s subsequent ruling in Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) likewise does not have the import BTB ascribes. While the Court held: “one without a judgment[] ha[s] no cognizable interest” in equitable relief, id. at 319 – 20; the Court in no way countermanded the well-accepted principle that one with a judgment, may enforce the judgment, and preserve assets from fraudulent disposition through equity. The Court moreover reaffirmed a statute may authorize prejudgment relief, even if that relief otherwise would not have been recognized in equity: “it involved not the Court’s general equitable powers. . ., but its powers under the statute . . . .” 527 U.S. at 326 (emphasis added).

12 instance, a court of appeals upheld the justifications for a temporary injunction

based on the following fact findings by the lower court:

this Court finds that [defendant’s] prior transfer of assets from the sale . . ., beyond the jurisdictional reach of [this] Court, and to its insiders and investors, along with [defendant’s] admission that it intends to continue to make further transfers, mandate extraordinary relief including the entry of this Temporary Injunction. Absent the entry of this Temporary Injunction Order, [defendant’s] propensity for improperly [sic] transfer of assets in violation of the Texas Fraudulent Transfers Act, will most likely deprive Plaintiff of the ability to recover its losses and satisfy a judgment.

158 S.W.3d 535, 541 (Tex. App.—San Antonio 2004, no pet.) (emphasis added).

The rationales for the lower court’s temporary injunction in Metra United were

materially identical to the rationales offered by the lower court here: “property and

assets will be moved, wasted, dissipated or otherwise transferred beyond the

jurisdictional reach of this or any other United States Court if not immediately

restrained based upon, among other things, testimony that a significant amount of .

. . proceeds have already been transferred by BTB.” (C.R. at 338) (emphasis

added).

In the redundant mandamus proceeding BTB filed in this Court to challenge

the lower court’s injunctive relief (Case No. 13-15-00395-CV), BTB suggested the

statutory remedies authorized in the Uniform Fraudulent Transfers Act, and

applied in Metra United, could not apply here—because the remedies supposedly

13 can be imposed against only an attempt by a debtor, as the “transferor,” to

fraudulently dissipate assets. See 9/16/15 Reply, pp. 7 – 8; Case No. 13-15-00395-

CV. The first flaw with this reasoning is the lower court premised injunctive relief

on an express finding BTB is the “debtor,” and “transferor,” because BTB is Mr.

Sargeant by virtue of alter ego principles. It simply is specious for BTB to suggest

a preliminary finding in this regard is insufficient for injunctive relief, which by

definition is preliminary in nature—because a final merits ruling that will be

conclusively “binding” on BTB has not yet been entered. Cf. 9/16/15 Reply, pp. 1

– 2, 3 – 4; Case No. 13-15-00395-CV. In this regard, BTB is not complaining of

any specific feature of the relief granted in this case; it is mounting a wholesale

attack on the writ of injunction as an equitable tool to obtain provisional relief.7

7 BTB’s standard operating procedure in this appeal, and the parallel mandamus action, has been to identify various procedures under Texas law that may be employed to satisfy a judgment or preserve assets, then offer entirely academic analyses regarding why those procedures purportedly would not be appropriate bases for preliminary relief on the present record. The failing, of course, is the lower court did not issue relief, or purport to issue relief based on any of the distinct procedural tools to which BTB exclusively directs its focus. As appropriate, Mr. Al- Saleh requested, and the lower court granted relief based on remedies authorized by equitable principles, as well as the Uniform Fraudulent Transfers Act, to prevent fraudulent disposition of assets under the facts considered by the lower court. It consequentially is unhelpful for BTB to cite cases such as United Bank Metro v. Plains Overseas Group, Inc., 670 S.W.2d 281 (Tex. App.—Houston [1st Dist.] 1983, no writ), wherein the court analyzed whether the Texas “turnover” statute (not a basis for the relief granted by the lower court and therefore not ripe for appellate review) could by asserted against an alter ego entity in advance of a formal fact finding on alter ego. Cf. 9/16/15 Reply, p. 2; Case No. 13-15- 00395-CV. Even assuming arguendo the Texas turnover statute is an appropriate analog for the injunctive relief at issue here (which it is not—because the remedial mechanisms operate in distinct fashions), the fundamental distinction here is the lower court has made the requisite factual findings to justify the injunctive relief entered against BTB.

14 But the more fundamental flaw with BTB’s contention is there simply is no

such limitation in the Uniform Fraudulent Transfers Act, nor have cases such as

Metra United recognized any such limitation. Texas Business and Commerce

Code section 24.008(a)(3)(B) is most illustrative in this regard, authorizing a court

to enter “any other relief the circumstances may require.” (emphasis added).

Contrary to this plain language, BTB would read in an otherwise unarticulated

qualification that “any other relief . . .” in truth means any other relief—as long as

it does not operate to prevent consummation of a fraudulent scheme by a third

party “transferor,” conspiring with the debtor.

The phrase “any other relief” should be read to mean precisely that, as it

otherwise would undermine the very purpose of a statutory scheme designed to

prevent fraudulent conduct of the kind BTB and Mr. Sargeant have attempted to

consummate, through collusion. Other remedial provisions in the Uniform

Fraudulent Transfers Act reinforce this conclusion. For instance, section

24.008(a)(2) does not speak in terms of provisional relief issued against some

narrow class of persons, but instead focuses on “an action for relief against a

There was no such factual finding on alter ego at issue in United Bank Metro, because the appellate court simply was not considering whether the plaintiff had attempted to make a showing of the kind, given that plaintiff was not seeking preliminary relief premised on the turnover statute. Indeed, the holding in United Bank Metro suggested turnover proceedings simply would not be appropriate to resolve factual disputes on such issues. See 670 S.W.2d at 283 – 84. By comparison, the very purpose of an equitable claim for injunctive relief is to resolve fact issues of the kind. See, e.g., TEX. CIV. PRAC. & REM. CODE § 65.011(2) (authorizing the “writ of injunction” as a standalone remedial mechanism).

15 transfer or obligation . . .” and contemplates the “remedy against the asset

transferred or other property . . . .” (emphasis added).8

The statute consequentially is drafted to preempt an entirely foreseeable ruse

by a debtor to deflect claims brought under the Uniform Fraudulent Transfers Act,

by claiming assets subject to the claim “in truth” are owned, controlled, or subject

to “transfer” by a third party. BTB misreads Metra United if it misperceives the

case to suggest a contrary interpretation. Cf. 9/16/15 Reply, p. 8; Case No. 13-15-

00395-CV.

In Metra United, the court did not enjoin only the putative judgment

“debtor” as the party acting in the capacity of “transferor”—but a separate entity

that held assets needed to satisfy a potential judgment, but which would have been

transferred beyond the court’s jurisdiction; save for injunctive relief. The actual

“debtor,” who had breached a property management agreement was “Metra United

Escalante, LP.” See 158 S.W.3d at 538.

Metra United Escalante, LP had sold an asset (an apartment complex), and

the proceeds of that sale were deposited with a separate entity identified as “Metra

United Holding LLC.” Id. Metra United Holding LLC then transferred almost all

of the proceeds from the sale to “investors,” such that the proceeds could not be

8 Only section 24.008(a)(3)(A) refers to a specific class of persons, and even then authorizes relief against the “debtor or a transferee . . . .” (emphasis added).

16 used to satisfy a potential breach of contract judgment against the actual debtor,

Metra United Escalante, LP. See 158 S.W.3d at 538, 544.

The court in Metra United did not forgo injunctive relief forbidding further

disposition of assets through this fraudulent scheme, simply because Metra United

Holding LLC technically would not be a judgment debtor or potentially liable

party. The court instead intervened to prohibit the collective efforts of the putative

judgment debtor and third parties to circumvent relief authorized under the

Uniform Fraudulent Transfers Act—and the court did so without even considering

alter ego as a basis to hold the respective parties liable.

The Uniform Fraudulent Transfers Act therefore clearly creates the remedies

Mr. Al-Saleh has invoked here, and in unequivocally so doing; BTB’s sole

objection could be the facts somehow do not warrant invocation of the remedies on

the current record. But if—as the lower court found—BTB is Mr. Sargeant’s alter

ego, BTB has no legal grounds to object to the injunctive remedy precluding

fraudulent disposition of assets rightfully subject to Mr. Al-Saleh’s judgments.

BTB’s only defense perhaps would be that, in fact, it is not Mr. Sargeant’s

alter ego; but the lesson of Metra United is not even that would warrant the

conclusion the lower court overreached by interrupting a unified scheme by BTB

and Mr. Sargeant to fraudulently transfer assets. And BTB’s greater obstacle is it

17 simply has not preserved any arguments regarding the lower court’s application of

the record to conclude BTB indeed is the alter ego of Mr. Sargeant.

3. BTB’s references to attachment and garnishment authorities are misguided BTB has not cited a single, sound authority in its briefing wherein injunctive

relief was deemed impermissible to prevent a judgment debtor and its alter ego

from dissipating assets to avoid a preexisting judgment. It is not at all enlightening

for BTB to cite and discuss cases addressing the factually inapposite scenario in

which plaintiffs sought to seize defendants’ assets before there had been any

adjudication of any kind, and where there were no questions regarding alter ego

liability for the judgment.

Whereas it may indeed be antithetical to public policy and equity to infringe

upon a litigant’s property rights before its liability has been adjudicated, cf. Grupo

Mexicano de Desarrollo S.A., 527 U.S. at 322; that principle does not, nor should it

operate to benefit an alter ego entity that is fraudulently dissipating assets for

purposes of avoiding a preexisting judgment—especially when the nature of

injunctive relief fundamentally leaves the assets in the possession of that entity.9

9 Here, the court did not take possession of the BTB’s assets by, for instance, obligating BTB pay the assets into a court registry; has not forbid BTB in the interim from benefiting from the “value” of the money in the form of accrued interest; and has not forbid BTB from treating the money as an asset for accounting purposes. BTB indeed has not offered this Court any evidence or explanation regarding any legitimate business purpose that has been impeded by the lower court’s directive to in effect leave the funds undisturbed in a Texas bank account with BTB as the account holder. The fundamental premise of BTB’s appellate contentions instead appears to

18 BTB’s discussion and articulation of legal principles limited to a

hypothetical scenario in which prejudgment rights either implicate or foreclose the

right to injunctive relief consequentially do not warrant rebuttal. Mr. Al-Saleh

does note, however, even assuming arguendo the prejudgment principles were

pertinent (which they are not), they would indeed by satisfied on this record.

Even BTB admits prejudgment seizure of assets can be appropriate in an

action for equitable relief—and as examples, BTB cites “rescission, constructive

trust, or restitution.” Brief of Appellant, pp. 14 – 15. It is not at all clear why BTB

thereafter ignores every claim Mr. Al-Saleh has asserted in this matter is equitable

in nature.

Alter ego is an equitable doctrine. See, e.g., Wilson v. Davis, 305 S.W.3d

57, 69 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“Disregard of the corporate

fiction . . . is ‘an equitable doctrine’ . . . .”). The relief Mr. Al-Saleh seeks under

the Texas Uniform Fraudulent Transfers Act likewise is equitable in nature,

because “[s]etting aside a fraudulent transfer is an equitable remedy.” Jackson

Law Office v. Chappell, 37 S.W.3d 15, 26 (Tex. App.—Tyler 2000, no pet.).

Indeed, in the heading, and repeatedly in the text of his “Verified Amended

Petition, Third-Party Petition, Application for Temporary Restraining Order and

be that it simply would prefer to transfer the assets beyond the jurisdiction of the United States before a final judgment can be entered, conclusively establishing those assets rightfully belong to Mr. Al-Saleh.

19 Injunctive Relief and Request for Appointment of Receiver,” (C.R. at 38)

(emphasis added); Mr. Al-Saleh emphasized he was seeking “equitable” relief to

enjoin Mr. Sargeant’s use of BTB to fraudulently transfer assets. See, e.g., TEX.

CIV. PRAC. & REM CODE § 65.001 (“The principles governing courts of equity

govern injunction proceedings if not in conflict with this chapter or other law.”)

(emphasis added). See also (C.R. at 50) (“Plaintiff has initiated these proceedings

asking this Court to utilize its broad legal and equitable powers to subject property

in the hands of . . . Defendants/Judgment Debtors, to judicial sale and satisfaction

of the Judgments. At issue in this proceeding is Defendant Sargeant’s membership

interest in BTB and Defendant BTB itself . . . .”) (emphasis added).

None of Mr. Al-Saleh’s claims have been asserted in a procedural posture

equivalent to those reflected in the cases cited at pages 16 – 17 of BTB’s Brief of

Appellant—and to the extent there is superficial similarity to JSC Foreign

Economics Ass’n Technostroyexport v. International Development and Trade

Services, Inc., 295 F. Supp. 2d 366 (S.D. N.Y. 2003), that court misinterpreted

Second Circuit authority (Wm. Passalacqua Builders, Inc. v. Resnick Dev. South,

Inc., 933 F.2d 131, 134 – 36 (2nd Cir. 1991)) evaluating whether an alter ego claim

was more analogous to an action at law or in equity for purposes of analyzing a

20 constitutional right to jury trial, not whether a prejudgment injunction to preserve

assets was permissible when alter ego was alleged.10

Mr. Al-Saleh did not assert equitable claims “incidental” to a more

fundamental dispute “at law” regarding whether a defendant is liable. Mr. Al-

Saleh already has the judgments on liability, and here is asserting equitable claims

as the bases to penetrate a fraudulent scheme to satisfy the judgments. The

equitable claims consequentially are not incidental; they are the central feature of

this dispute.

BTB distorts the record by quoting without context the following language

from a post-hearing brief Mr. Al-Saleh filed in the lower court: “at this stage of

the proceedings . . .”; “a satisfaction of the Florida Judgment . . . is not sought but,

rather, merely the preservation of the funds necessary for satisfaction . . . .” (C.R.

at 32). This statement does not betray Mr. Al-Saleh was attempting to “seize funds

to aid him in satisfying a future money judgment against BTB . . . .” Brief of

Appellant, p. 6 (emphasis added). It was a matter-of-fact observation that until

BTB’s alter ego liability for the preexisting judgments, resolved as a preliminary

matter for purposes of temporary injunctive relief, conclusively is resolved at

trial—BTB should be enjoined from fraudulently transferring the assets Mr.

10 It also is not clear the New York legal principles addressed in the cases directly parallel Texas principles controlling here—because alter ego is treated as an equitable remedy under Texas law. It is telling, however, that in a dispute unequivocally governed by Texas law—BTB has resorted to inapposite case authority from New York.

21 Sargeant intended to pass through BTB, en route to an offshore entity, to avoid

those judgments.

Similarly, Mr. Al-Saleh does not seek “damages” against BTB in the sense

of quantifiable injuries independently caused by BTB, and which require further

litigation. Cf. Brief of Appellant, p. 13. Mr. Al-Saleh seeks to enforce through

equitable doctrines, the damage award already issued by the Florida court, and

domesticated in the lower court—plus the corresponding costs and interest that

continue to accrue. Cf. Martin, 2014 WL 6871392 at **1, 4 – 7.

Accordingly, even if the Court were to accept BTB’s fictionalized

characterization of this matter, BTB still would not be entitled to relief. A

temporary injunction is an appropriate remedy in equitable proceedings to prevent

the unlawful disposition of assets that are the subject of the equitable proceedings.

Cf. Animale Group Inc. v. Sunny’s Perfume, Inc., 256 Fed. Appx. 707, 709 (5th

Cir. 2007) (distinguishing the holdings in Grupo Mexicano and Deckert and

holding that “[b]ecause Defendants seek equitable relief, the district court was

authorized to preserve the status quo by entering a limited asset freeze.”).

B. Alter Ego is not Equivalent to an Attempt to Satisfy a Judgment “out of” an LLC Membership Interest

1. Applicable legal principles

When a judgment creditor seeks to collect against the membership interest a

judgment debtor holds in a Limited Liability Company, Texas Business

22 Organizations Code section 101.112 controls. Under such circumstances, the

permissible remedy is a charging order against the membership interest. See TEX.

BUS. ORG. CODE § 101.112(d).

But these principles are inapposite when there is a legal or equitable basis by

which the LLC is liable on the debt in its own right. For instance, notwithstanding

the provisions of the Texas Business Organizations Code, alter ego principles

apply to a LLC for purposes of veil piercing. See, e.g., Shook v. Walden, 368

S.W.3d 604, 621 (Tex. App.–Austin 2012, no pet.).

2. BTB is directly liable as an alter ego Mr. Al-Saleh’s standalone alter ego claim against BTB is not an attempt to

satisfy the outstanding judgments out of Mr. Sargeant’s membership interest in

BTB. A charging order providing that remedy already is in place; but has not

translated into satisfaction of the judgments—because Mr. Sargeant has employed

a series of deceptive practices to avoid responsibility.11

Mr. Al-Saleh therefore seeks to remedy one such practice through discrete

relief, authorized by Texas law, to have BTB recognized as Mr. Sargeant’s alter

11 BTB and Mr. Sargeant voluntarily assented to a Charging Order in the proceedings below. See (C.R. at 27 – 30). Mr. Al-Saleh now strongly suspects they did so only based on the belief Mr. Sargeant’s propensity to shelter his “personal” assets in sham entities would make the Charging Order toothless, coupled with the seriously mistaken belief Mr. Al-Saleh then would be without alternative remedies. The equitable relief granted by the lower court demonstrates otherwise.

23 ego. See Shook, 368 S.W.3d at 621 (holding that rules regarding piercing the

corporate veil apply with equal effect to an LLC).

It therefore is irrelevant whether a charging order would be the exclusive

remedy if Mr. Al-Saleh were here seeking only to satisfy a judgment by virtue of

an LLC membership interest. He is not. BTB’s liability independently is premised

on BTB and Mr. Sargeant’s alter ego status.

VII. PRAYER WHEREFORE, Appellee Mohammad Anwar Farid Al-Saleh respectfully

requests this Court affirm the lower court’s temporary injunction, dismiss this

interlocutory appeal, and grant Mr. Al-Saleh all other relief, at law or in equity, to

which he may be entitled.

24 September 28, 2015 Respectfully submitted,

s/ Nolan C. Knight Nolan C. Knight TX 24027125 E-mail: nknight@munsch.com MUNSCH HARDT KOPF & HARR, P.C. Dallas, Texas 75201 Telephone: (214) 855-7500 Facsimile: (214) 855-7584

Daniel D. Pipitone TX 16024600 E-MAIL: dpipitone@munsch.com Kenneth W. Bullock, II TX No. 24055227 E-MAIL: kbullock@munsch.com MUNSCH HARDT KOPF & HARR, P.C. Pennzoil Place 700 Milam Street, Suite 2700 Houston, Texas 77002 Telephone: (713) 222-1470 Facsimile: (713) 222-1475

COUNSEL FOR APPELLEE MOHAMMAD ANWAR FARID AL- SALEH

25 VIII. CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify this

computer-generated document contains 6,254 words.

s/ Nolan C. Knight

26 IX. CERTIFICATE OF SERVICE As required by Texas Rules of Appellate Procedure 6.3 and 9.5(b), (d), (e), I

certify I have served this document on all other counsel of record—who are listed

below—on September 28, 2015, by submission through the electronic case filing

system of the Court:

Ms. Deidre B. Ruckman Mr. Mark T. Mitchell Mr. Stacy R. Obenhaus GARDERE WYNNE SEWELL LLP GARDERE WYNNE SEWELL LLP 600 Congress Avenue 1601 Elm Street Suite 3000 Suite 3000 Austin, Texas 78701 Dallas, Texas 75201

Counsel for Appellant BTB Counsel for Appellant BTB Refining, LLC Refining, LLC

s/ Nolan C. Knight

27 6559996v.4 15734/1 6576056v.4