Kendall v. Turn-Key Specialists, Inc.

911 F. Supp. 2d 1185, 2012 WL 5949200, 2012 U.S. Dist. LEXIS 168724
CourtDistrict Court, N.D. Oklahoma
DecidedNovember 28, 2012
DocketCase No. 12-CV-140-GKF-PJC
StatusPublished

This text of 911 F. Supp. 2d 1185 (Kendall v. Turn-Key Specialists, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kendall v. Turn-Key Specialists, Inc., 911 F. Supp. 2d 1185, 2012 WL 5949200, 2012 U.S. Dist. LEXIS 168724 (N.D. Okla. 2012).

Opinion

OPINION AND ORDER

GREGORY K. FRIZZELL, Chief Judge.

Before the court is the Rule 12(b)(2) Motion to Dismiss Complaint for Lack of Personal Jurisdiction [Dkt. # 8] filed by defendants Turn-Key Specialists, Inc. (“TSI”), and James T. Lewellen (“Lewellen”). Defendants assert the court lacks general or specific personal jurisdiction over them.

I. Facts

A. Allegations of the Complaint

Plaintiff Matthew Kendall (“Kendall”), a resident of Oklahoma, sued TSI, a Texas corporation, and Lewellen, a Texas resident, for breach of contract. [Dkt. #2, Complaint]. He alleges on May 29, 2011, he entered into a binding letter agreement (“Letter Agreement”) with Lewellen, individually, and TSI, for the acquisition of the assets of TSI and certain agreed upon liabilities effective June 30, 2011. [Id., ¶¶ 5-6]. At the time, Lewellen owned the majority of the stock of TSI, and subsequently, he acquired and owns 100% of the stock of TSI. [Id., ¶ 7]. Kendall alleges that in reliance on the Letter Agreement, he and Lewellen agreed to allow a third party selected by Kendall to begin working in management for TSI and Kendall paid half of the third party’s compensation. [Id., ¶ 8], He also alleges he rendered services to TSI in contemplation of the closing, and he and the third party added substantial value to TSI, from which TSI and Lewellen benefited. [Id., ¶ 9], He alleges that, as contemplated by the Letter Agreement, he had a “Definitive Agreement” prepared and provided to TSI and Lewellen for review and comment, to which neither defendant responded. [Id., ¶ 11]. He contends he fully performed all obligations of the Letter Agreement and all conditions precedent to the closing were either satisfied or waived by Kendall. [Id., ¶¶ 16-17]. Kendall alleges he was fully prepared to close the transactions contemplated under the Letter Agreement by the targeted closing date of August 1, 2011, and made multiple demands on defendants that they close the transaction, but defendants delayed the closing and, in violation of the Letter Agreement, stopped providing current information about TSI requested by him. [IcL, ¶¶ 18-22], Kendall alleges he sent defendants letters demanding a closing on October 25, 2011 and December 23, 2011, but defendants breached the Letter Agreement by failing to close the sale, failing to use commercially reasonable best efforts to close the sale, failing to provide current information about TI and/or by taking actions prohibited by the Letter Agreement without Kendall’s consent. [Id., ¶¶ 23, 25-26]. He seeks specific performance of the Letter Agreement and lost profits derived from and/or the diminution in value of, the assets from June 30, 2011, to the date that assets are transferred to him, or in the alternative, the value of the assets as a going concern, which is estimated to be between $2 million and $20 million. [Id., ¶ 27], He also seeks damages for other direct losses, including additional expenses incurred in attempting to close the transaction. [Id., ¶ 28].

B. Affidavit of Lewellen, Individually

Lewellen is a resident of Houston, Texas, and has been at all times material to this action. [Dkt. # 8, Ex. A], He has not been in Oklahoma since 2008. [Id.]. His presence then was as an employee of TSI. [Id.]. He has never owned or leased real or [1190]*1190personal property in Oklahoma, never owned a business licensed in Oklahoma or otherwise related to Oklahoma, never had a bank account or telephone in Oklahoma, never been employed in Oklahoma, nor employed an Oklahoma resident, and never been sued in Oklahoma. [Id.].

Lewellen states that, regarding the Letter Agreement, plaintiff initiated contact with him regarding the purchase of his stock in TSI, and the initial contact occurred in Houston. [Id.]. In his personal capacity, he never delivered documentation regarding TSI to plaintiff in Oklahoma, and has never delivered correspondence to plaintiff in Oklahoma. [Id.]. He executed the Letter Agreement in The Woodlands, Texas, and the Letter Agreement was to be funded in Houston. [Id.]. In his personal capacity, Lewellen has no right to sell the assets and liabilities of TSI. [Id.].

C. Affidavit of Lewellen as President of TSI

Lewellen, at all times material to this case, was President of TSI. [Dkt. # 8, Ex. B]. TSI is a corporation licensed and existing under the laws of the State of Texas, with its principal — and only — place of business at Two Eldridge Place, 757 North Eldridge Road, Suite 550, Houston, Texas, 77079. [Id.]. TSI has no registered or unregistered agent for service of process in Oklahoma; TSI has never owned or leased real or personal property in Oklahoma; never had a bank account or telephone in Oklahoma; never employed an Oklahoma resident; never paid taxes in Oklahoma; and never before been sued in Oklahoma. [Id.]

Lewellen avers that TSI does not conduct business in Oklahoma; the last time it conducted any business in Oklahoma was 2008, after which TSI purposefully stopped conducting business in the state. [Id.]. TSI is not licensed to conduct business in Oklahoma, nor does it own, lease or control property in Oklahoma. [Id.]. TSI does not maintain employees, offices, agents or bank accounts in Oklahoma; none of its shareholders reside in Oklahoma; TSI does not advertise or otherwise solicit business in Oklahoma; does not travel to Oklahoma by way of salesperson or other representatives, does not pay taxes in Oklahoma; does not visit potential customers in Oklahoma; does not recruit employees in Oklahoma; and does not generate sales or income through revenue generated from Oklahoma customers. [Id.].

TSI is properly capitalized and maintains books and records separate and apart from Lewellen personally. [Id.]. Its finances are kept separate from Lewellen’s individual finances; TSI does not pay Lewellen’s individual obligations and Lewellen does not pay TSI obligations. [Id.]. TSI follows all corporate formalities. [Id.].

With respect to the Letter Agreement, plaintiff initiated contact with Lewellen regarding the purchase of his stock in TSI. [Id.]. The initial contact took place in Houston. [Id.]. Plaintiff conducted meetings at TSI’s offices in Houston regarding his purchase of the assets and liabilities of TSI; plaintiffs bankers reviewed all records requested of TSI at TSI’s offices in Houston; the third party selected by plaintiff conducted due diligence on TSI at TSI’s offices in Houston. [Id.].

TSI’s Board of Directors, sitting in Texas, conducted a telephone conference with plaintiff and his legal counsel, Mark Allen (“Allen”). During the telephone conference, TSI’s directors advised plaintiff and Allen that any offers regarding the sale of TSI and/or its assets and liabilities would need to be presented to an reviewed and approved by the directors. [Id.]. Plaintiff and Allen agreed to this. [Id.]. Lewellen alleges the agreement between TSI’s directors and plaintiff was made in Texas. [Id.].

[1191]*1191Lewellen, as president of TSI, executed the Letter Agreement in The Woodlands, Texas, and the Letter Agreement was to be funded in Houston. [Id,.]. Lewellen states, “As President of TSI, I had no intention whatsoever of purposefully availing] TSI of the privilege of conducting activities or consummating a transaction in Oklahoma” and “my only intention was to consummate a' transaction in the State of Texas.”

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Cite This Page — Counsel Stack

Bluebook (online)
911 F. Supp. 2d 1185, 2012 WL 5949200, 2012 U.S. Dist. LEXIS 168724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kendall-v-turn-key-specialists-inc-oknd-2012.