N4T DESIGNATED FRPUBLICATIUN

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2010 CW014R

f ENVIROSHIELD TECHNOLOGIES LLC

VERSUS

LONESTAR CORROSION SERVICES INCTNYA CRONIN GLENCRONIN ENERGY COATING INC AND RICHARD SAUCE

Judgment Rendered UN g 2011

On Supervisory Writs fromTwentyThird Judicial District Court

In and for the Parish ofAscension LouisianaTrial Court Number 87073

Honorable Ralph Tureau Judge

Gerald R Arceneaux Attorneys forNew Orleans LA Plaintiff Respondent

and Enviroshield TechnologiesJames M Dill LLC

Thomas M DupontLafayette LA

Gerald C deLaunay Attorney forLafayette LA Defendants Relators

Lonestar Corrosion Servicesnc Energy Coatings IncTonya Cronin and Glen Cronin

BEFORE McDONALD McCLENDON AND WELCH JJ

l1eCC CGu S ts

WELCH J

In this application for supervisory writs defendants Energy Coatings Inc

Energy Glen Cronin Glen and Tonya Cronin Tonya seek review of a trial

courtsjudgment denying their declinatory exception raising the objection of lack

of personal jurisdiction For the reasons that follow we grant the writ to reverse

the denial of the exception of personal jurisdiction filed by Tonya and deny the

writ in all other respects

BACKGROUND

On August 31 2007 EnvirashildTechnologies LLC Enviroshield a

Louisiana limited liability company fled this lawsuit against Lonestar Corrosion

Services Inc Lonestar a Texas corporation with a facility in New Iberia

Louisiana Energy a Texas corporation Glen and his wife Tonya Texas residents

and the principal shareholders of Lonestar and Energy and Richard Sauce a

Louisiana citizen in the 23 Judicial District Court for the Parish of Ascension

seeking damages for alleged unfair trade and business practices On Fbruary 4

2p 10 Enviroshield amended its petition to add four additional defendants Murry I

Ginsberg a Florida resident and three Florida corporations In the original and

amended petition Enviroshield alleged that Lonestar committed unfair trade

practices in its business dealings with Envi roshield and that all of the named

defendants conspired to commit unfair trade practices with Lonestar

In the original and amending petitions Enviroshield made the following

allegations Enviroshields primary business consists of private labeling

marketing selling and applying an epoxy coating known as Enviroshield

Enviroshieldsoriginal members were two companies owned by Mario Barletta

Joseph Barletta and Mr Sauce Lonestar a business competitor also specializes

in the sale and application of various coating systems and has a facility in New

Iberia Louisiana At some point Mr Sauce a member of Enviroshield was hired

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by Lonestar to manage its New Iberia facility At the urging of Mr Sauce

Enviroshield entered into an Exclusive Alliance Agreement in which

Enviroshield agreed to sell its product labeled Enviroshield exclusively to

Lonestar and cease its application endeavors and Lonestar agreed to purchase the

product and equipment necessary to apply the product directly from Enviroshield

on an asneeded basis The product subject to the agreement was manufactured for

Enviroshield by a Florida based company owned by Mr Ginsberg Thereafter

Enviroshield and the manufacturer entered intoaDistributor Agreementi

concerning the product At some point Lonestar refused to pay its debts to I

Enviroshield forcing Enviroshield to place Lonestar in material breach of the

Exclusive Alliance Agreement on September 13 2006

Enviroshield further alleged that on September 26 2006 Glen and Tonya

Lonestarsprincipals formed Enerya company that specializes in the marketing

and selling of coatings for the purpose of marketing and seliang to Lonestar a

coating called EC92 which it claims is the sam product Enviroshield had sold to

Lonestar Enviroshield claimed that Lonestar took various measures to prohibit

Enviroshield from interfering with Lonestarsdomestic and foreign markets by

relying on the Exclusive Alliance Agrement although Enviroshield was forced to

terminate the contract because Lonestar failed to pay the balance on its account on

at least two occasions

In th petition Enviroshildalleged that Lonestar was guilty of unfair trade

practices by 1 intentionally failing to pay its debts to Enviroshield forcing

Enviroshield to place Lonestar in brach and eventually terminat the contract on

November 20 2006 2 prohibiting Enviroshield from marketing its product in

Houston 3 ceasing to order Enviroshieldsproduct and 4 attempting to nforce

the agreement in th absence of performance and payment Enviroshield claimed

that Glen and Tonyasactions as officers of Lonestar in committing these acts of

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unfair trad practices and in forming Energy a corporation specializing in the

marketing and selling of coatings for the purpose of selling the same product

marketed by Enviroshield to Lonestar constituted a conspiracy to commit unfair

trade practicsand intentional intererence with contract

tn its 2010 amended petition Enviroshield claimed to have a distributor

agreement with Mr Ginsberg pursuant to which it paid Mr Ginsberg2000000

or the right to private label the product as Enviroshield It alleged that Mr

Ginsburgs manufacturing and selling of EC92 to Lonestar and Energy was a

conspiracy to commit unfair trade practices and intentional interference with the

contract

Lonestar Glen Tonya and Energy answered the original petition asserting

therein that the Louisiana court lacked personal jurisdiction over them At some

point Lonestar abandoned its challenge to personal jurisdiction and a hearing washeld on the remaining jurisdictional objections At the hearing Enviroshield

presented the testimony of Rosalie Hebert and James Schnieder and offered the

depositions of Energy Glen Tonya and Mr Ginsberg

Mr Schneider a Lafayette resident and service manager employed by MI

SWACO testified that he purchased Enviroshield from Lonestar when his

company needed a specialty coating In May of 2007 a different employee of

Lonestar Terry Dore contacted Mr Schneider about purchasing EC92 He stated

that Glen also contactdhim regarding the product and that both men told him

EC92 was the same product as Enviroshield Mr Schneider identified a fax sent

from Lonestar on May 1 2Q07 containing the MSDS sheet for EC92as well as aletter from Mr Ginsberg the coating manufacturer to Glen In the letter Mr

Ginsburg stated that EC92 is the same material used in the years 2005 and 2006

and that some improvements had been made with the addition of magneticresonance and a chmical to extend the longevity of the material Mr Schneider

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testified that Mr Ginsbuarg also told him that the coatings were the same with th

exception of some additives He added however that none of the men he spoke to

held themselves out as representing Energy and he understood them to be

employees of Lonestar Mr Schneiderscompany did not purchase EC92 from

Lonestar Mr Schneider acknowledged that he never spoke to Tonya

Glen gave a deposition personally and as the representative of Energy He

stated that he owns Lonestar Energy and GTM Real Estate which owns property

in New Iberia Louisiana Glen testitied that he does not personally own any

property in Louisiana ard he has nevear sued or been sued here He admitted

visiting Louisiana about three times per year for business with Lonestar once for

GTM business and he has taken three or four pleasure trips to New Orleans in the

past 10 years Glen acknowledged coming to Louisiana in early 2Q06 to meet with

Enviroshieldsreprsentatives

According to Glen Energy owned equally by himself and Tonya was

formed in 1Vlarch of 2003 and incorporated in Texas At the time of its formation

Glen was investigating daing specialty coating applications with a thermal spray

He stated that the company did not do any businss until 2006 or 2007 and at

present is in the business of selling EC92 to Lonestar He acknowledged that EC

92 is the only product that Energy sells When asked why Energy was set up Glen

stated that they were looking to diversify some of the Lonestar assets to sell

product and to do suppliragreemnts He stated that Energy has never been

sued has never filed suit has no employees and has a checking account in aHouston bank Glen insisted that Energysbusiness is conducted in Texas but

admitted that Energy has no telphone number office or warehouse When asked

if Energysbusiness was operated aut of Lonestarsoffices Gln responded I

guess notin that because Lonestarsonly customer s Energy there was no need

to conduct businss outside of that office Glen testified that orders for the coating

5

product are placed from Lorstarsoffices dirctly to the manufacturer and that

one ofLonestarsemployeeshandles Energysbusiness

Glen denied ever talking to Mr Ginsberg about purchasing coating products

directly from his company without going through Enviroshield but admitted

talking to Mr Ginsberg about purchasing a product under a different patent at theI

end of 200b He admitted visiting Mr Ginsberg in Flordia on one occasion on

behalf of Energy near the end of 2Q06 and having many conversations around that

tim with Mr Ginsberg on the telephone However Glen denied telling anyone

EC92 was the same thing as Enviroshield or asking Mr Ginsberg to change the

product to make it different from Enviroshield product He also irtsisted that

neither Energy nor Lonestar has ever marketed the product EC92 in Louisiana and

denied ever forwarding any materials to potential customers in Louisiana on behalf

of Energy to market EC92

In her deposition Tonya stated that she has never lived or resided in

Louisiana has never paid taxes here and she does not ownprsonally any propertyin Louisiana She admitted that she had an ownership intrest in GTM which

owned property in New Iberia on which the Lonestar facility is located and in

Lonestar which leases the property from GT1VI She also admitted coming to

Louisiana in July of 2009 to visit the Lonestar facility visiting New Iberia on

business axound 2006 and having taken a vacation to New Orleans

Tonya tstified that Lonestar provides a service of applying industrial

coatings and has more than ten different types of coatings She is a fifty percent

ownrof Energy which she stated was foarmed to buy and sell products Energys

address is listed as the Texas residence she and her former husband Glen sharedat the time the company was formed Her testimony indicated she was not

involved in the daytoday operation of Energy or Lonstar and that her duties

were limited to going over financial matters She acknowledged that Energy buys

6

EC92 from Mr Ginsberg and having spoken to Mr Ginsberg

1VIr Ginsberg whose companies manufacture the epoxy coatings formingthe basis of this lawsuit testified that he was introduced to Glen throu h 1VIr

I

g

Sauce whom Mr Ginsberg knew was acquainted with Enviroskield He could not

recall when he met Glen or when his business relationship with Glen Lonestar

and Energy began but remembered meeting Glen for the first time in Texas A

November 6 2007 email from Glen to Mr Ginsberg was presented describing

their wonderful working relationship and Mr Ginsberg admitted he had been

doing business with Lonestar and Energy before actually meeting Glen At some

point in therlationship Glen advisEd Mr Ginsbrg that he had a new company

called Energy and according to Mr Ginsberg thereafter most of the business he

received was from Energy with an occasional invoice from Lonestar

Mr Ginsberg testified at length regarding the different products his

companies manufactures and emphatically denied that the product he sold toEnviroshield is the same product he sold to Lonestar and Energy He explained

that Glen requested a specific label on the product he sold as MT22 and that he

agreed to label the product EC92 but did not charge Glen a labeling ee Mr

Ginsbearg acknowledged he also has had a business relationship with Mr Sauce

paying hiln commissions on some sales Mr Ginsberg admitted that he entered

into a nonexclusive distributorship agreement with Enviroshield and charged the

companya2000000labeling fee According to Mr Ginsberg Enviroshield did

not apprise him of who their customers were and if he knew that Lonestar was

Enviroshields customer he would not have sold the products to Lonestar Mr

Ginsberg stated that his companies continue to do business with both Lonestar and

Energy

Following the conclusion of the hearing the trial court concluded that

Energy Glen and Tonya all had sufficient contact with Louisiana to maintain

7

personal jurisdiction over them and entered a judgment denying the exception of

personal jurisdiction Thedfendants applied for suprvisory writs with this court

On July 19 2010 this court reversed in part and granted the exception of personal

jurisdiction filed by Tonya finding that Enviroshield failed to meet its burden of

proving that Tonya had sufficient minimum contacts with the state of Louisiana to

justify the exercise of personal jurisdiction over her The writ was denied as to the

denial of Energy and Glens exception of personal jurisdiction Enviroshield

TechnologiesLLC v Lonestar Corrosion Services Inc 20100614 La App

1 st Cir 719l0unpublishd Writs wre taken to the supreme court by

Enviroshield Glen atad Energy which were all granted and th case was

remanded to this court for briefing argument and a full opinion Enviroshield

TechnoloiesLLC v Lonestar Corrosion Services Inc 20101792010

1935 La 1015104f So3d 1278

In their writ application defendants assert that the trial court erred in

denying their exception to the courts jurisdiction in the following respects 1

relying on the allegations of the pleadings rather than the evidence adduced at the

hearing 2 considering contacts outside of Louisiana to support its finding of

personal jurisdiction 3 considering contacts of the defendants with the Stat of

Louisiana after the lawsuit was filed 4 considering contacts and business

operations of Lonestar within Louisiana to support jurisdiction against Glen

Tonya and Energy and 5 improperly disregarding the fiduciary shield doctrine

PERSONAL JURISDICTION

Appellate courts conduct a de novo review of the legal issue of personaljurisdiction over a nonresident by a Louisiana court Quality Design and

Construction Inc v Tuff Coat Manufacturing tnc 200517 2 p 3La App1 Cir712Ob 939 So2d 429 432 Generally a trial courts factual findings

underlying th decision arerviewed under the manifest error standard Id When

8

as here a trial court conducts an evidentiary hearing on the exception of

jurisdiction the plaintiff must prove facts in support of the claim that jurisdiction is

proper by a preponderanc of the evidence de Reyes v Marine Management

and Consulting Ltd 586 So2d 13 109 La 1991 We note that the trial court

did set forth the allegations of Enviroshieldspetition in its findings of fact in the

writtenrasons for judgment however the couz also referred to the evidence

adduced at the hearing on the excption in its written reasons Under these

circumstances we reject defendants claim that the trial court relied only on the

allegations of the pleadings rather than the evidence adduced at the hearing in

ruling on the exception However the trial court did not make any specific

findings as to which contacts served as the basis for its conclusion that the

defendants maintained suff cient contacts with Louisiana to support the assertion

of jurisdiction over them As such we shall review the evidence adduced at the

hearing de novo in determining whether Enviroshield met its burden o proving

facts in support of its claim that personal jurisdiction over the defendants is proper

by a preponderance of the evidence

Louisianaslortgarm statute provides that a court of this state may exercise

personal jurisdiction over a nonresident on any basis consistent with the

constitution of this state and the Constiutian of the United States La RS

133201B The limits of the Louisiana LongArm Statute and the limits of

constitution are coextnsive and the sole inquiry into jurisdiction over a

nonresident is whether it comports with constitutional due process Alonso v

Line 2002244p 6LaS200346 So2d 745 750 cert denied S40 US

967 124 SCt 434 1 S7LEd2d311 2003

To comport with constitutional due process requirements the nonresident

defendant must have purposefully established minimum contacts with the forum

state such that he could reasonably anticipate being haled into court there and the

9

exercise of personal jurisdiction much be such that it does not offend traditional

notions of fair play and substantial justice International Shoe Co v State of

Washington 326 US 310 316 66 SCt 154 1 SS 90 LEd 95 1945 A two

part test has ben developed to determine whether minimum contacts exist which

requires a court to engage in a factual determination of tke relationship among the

forum the defendant and the litigation Shaffrv Heitner 433 US 18b 204 97SCt 2569 2580 S3 LEd 2d b83 1977 First it must be shown that the

defendan established minimum contacts with the forum state which is satisfied by

a single act or actions by which the defendant purposefully avails itself of the

privilege of cortductirig activities within the forum state thus invoking thebenefits and protections of its laws Burger King Corporation v Rudzewicz

471 US 462 475 105 SCt 2174 2183 8S LEd2d 528 1985 The

nonresidents purposeful availment must be such that the defendant should

reasonably anticipate being haled into court in the forum state Alonso 2002

2644 at p 7 84b So2d at 751 citing WorldWid Volkswagen Corporation vWoodson 444 US 28b 297 100 SCt 559 567 62LEd2d 490 1980

The plaintiffasserting pearsonal jurisdiction over a nonresident defendant has

th initial burden ofstablishing that the defendant has established minimumcontacts with this state If plaintiff ineets this burdenapresumption of

reasonableness arises and the burden then shifts to the defendant to prove the

assertion of would be so unreasonable in light of traditional notions of fair play andsubstantial justice as to overcome the presumption of reasonableness created by thedefendantsminimum contacts with the forum Alonso 2002244 at p 8 846

So2d at 7S 1 In examining the fundamental fairness issue courts examine 1 thedefendants burden 2 the forum states interest 3 the plaintiffs interest in

convenient and effective relief 4 the judacial systems interst in efficient

resolution of controversies and 5 the states shared interest in furthering

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fundamental social policies Id

A courts exercise ofpersonal jurisdiction may be genral or specific A

court may exercisegneral jurisdiction over a defendant when the defendant has

ngaged in continuous and systematic contacts with th forum state but thecontacts are not necessarily related to the lawsuit Helicopteros Nacionales de

Columbia SA v Hall 46G US 408 414416 104 SCt 1868172173 80

LEd2d404 1984 A court may exercise specific jurisdiction over a nonresident

defendant when the defendant has purposefully directed its activities at residents of

the forum state and the litigation results from alleged injuries that arise out of orrelate to those activities Helicopteros Nacionales de Columbia SA 466 US

414 n8 104 SCt at 1872n8

Time Frame for Evaluation of Contacts

Before determinin whether Enviroshield met its burden of establishing the

existence of minimum contacts by the defendants we must first address the

defendants argument that a court should only consider those contacts occu

prior to the time the lawsuit is filed in evaluating contacts with the forum state

regardless of whether a court is making a general or a specific jurisdictionaldetermination They submit that since the lawsuit was filed on August 31 2007

only contacts prior to that date could have caused the lawsuit and insist that onlythose contacts are relevant to the lawsuit Defendants rely on federal cases claimed

to stand for the proposition that general jurisdiction can be assessed by evaluating

contacts of a defendant with the forum over a reasonable number ofyars up tothe date a lawsuit is filed See Access Telecom Inc v MCI

Telecommunications Corporation 197 F3d G94 717 S Cir 1999 They ask

this court to rule as a matter of law that only those contacts up until the time the

lawsuit was filed on August 31 2007 may be considered in evaluating thejurisdiction issue Under the circumstances of this case we decline to so rule

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In the petition Enviroshield alleged that it entered into an exclusive

agreemettt with Lonestar governing the sale and purchase of Enviroshield which

specif cally restricted Enviroshieldssale of its product labeled Enviroshield to

Lonestar and limited Lonestars purchase of Enviroshield directly from

Enviroshild It alleged that after entering into the agreement Glen and Tonyaformed Energy Lonestar stopped ordering from Enviroshield but held

Enviroshield to the terms of the agreement therbyprohibiting Enviroshield from

selling its product to any other entity or individual Enviroshield alleged that the

product sold by Energy EC92 to its sole customer Lonestar is the same coatingproduct subject to the agreement namely Enviroshield In its brief Enviroshield

posits that the net effcct of this activity is to remove Enviroshield as a

middleman supplier of Enviroshield to Lonestar In other words Enviroshield

contends it could only sell Enviroshield to Lonestar but Lonestar did not order its

product because Lonestar through Enexgy was going around Enviroshield to getEC92 from Enviroshieldsmanufacturer Mr Ginsberg which had granted

Enviroshield the right to private label its product The alleged tort in this case was

the conduct of defendants in orming Energy to market EC92 to the detriment o

Enviroshield which aliegedly constituted an unfair trade practice and which

allegedly interfered with Enviroshieldsexclusive arrangement with Lonestar

Enviroshield contends that this is a case of specific jurisdiction involving acontinuing tort which under Louisiana law occurs as long as both the tortuousconduct and the damage continues See Benton Benton and Benton v

Louisiana Public Facilities Authority 951367 p 4La App 1 Cir 4496b72 So2d 720 723 writ denied 961445 La 91396 679 So2d 110

Enviroshield contends that in such situations the contacts after the date of the

filing continue to be relevant to the issue of specific jurisdiction because theypertain to the defendants tortious activity In support of this argument

12

Enviroshield relies on Beverly Hills Fan Company v Royal Sovereign Corp 21F3d 1558 156263 Fed Cir 1994 cert dismissed 512 US 1273 11 S SCt 18

129 LEd2d 917 1994 in which the court stated that where the tort allegedinvolves continuous infliction of injury upon the victim it would be arbitrary toidentify a single moment after which a defendants contacts with the forum

necessarily become irrelevant to the issu of specific jurisdiction

Similarly we agree that where as here an ongoing conspiracy to deprive a

company of business is alleged it would be improper to consider only defendants

contacts with Louisiana prior to the filing of the lawsuit in evaluating whether theminimum contacts prong of the due process test is met Enviroshield filed its

initial unfair trade practices lawsuit in 2007 but added an allegedcoconspirator as

a defendant in 2010 who admitted that in late 20Q9 he was still selling epoxycoating products to both Lonestar and Energy The defendants testimony in the

depositions regarding dates and timelines for their activities was often vague Wbelieve that the defendants ongoing contacts with the forum are relevant in

determining whether thy are guilty of the allegations of unfair trade practices forforming a second corporation to se11 epoxy coatings under its own label afterentering into an exclusive alliance agreement with Enviroshield to sell

Enviroshieldsproduct irrespective of the date on which those actions occurred

Becaus defendants Louisiana contacts are relevant to the unfair trade practicsand intentional interference with contact claims we hold that the jurisdictional

analysis is not limited to considering only prelawsuit activities undertaken by thedefendants in this forum Thereore we shall consider all contacts whether

occurring before or after the filng of the lawsuit having relevance to the allegedongoing tortious conduct in determining whether Louisiana may assert specificjurisdiction over the defendants

13

Ener s Contacts with Louisiana

The evidence stablished that Glen and Tonya now divorced own Lonestar

Energy and GTM GTM owns immoveable property in New Iberia on which

Lonestar maintains a facility and leases the property from GTM Glentstified by

deposition that Energy was formed for the sole purpose of purchasing and then

selling an epoxy coating known as EG92 to Lonestar a product Energy purchasedfrom the same company that manufactured Enviroshield The evidence at the

hearing demonstrated that Energy has no offices warehouses property insurance

coverage oar employees of its own Instead Enrgy conducts its business out of

Lonestars facilities its only customer is Lonestar and it uses Lonestars

employees to do its work Glen acknowledged that Energys orders are placed

from Lonstars offices with Mr Ginsberg While Gln denied marketing the

product EC92 in the Stat of Louisiana on behalf of Energy Enviroshield

produced evidence contradicting that statement According to Mr Jimmy

Schneider a Louisiana resident Glen had attempted to sell EC92 in Louisiana and

represented to him that it was the same product as Enviroshield

We believe that the evidence establishd that Energy has sufficient

minimum contacts with Louisiana because of the manner in which that company

has been run by Glen in conjunction with Lonestar Glen ran Energy as if it were a

part of Lonstar without regard for its separate corporate identity Lonestar over

which Louisiana uradeniably has personal jurisdiction markets and slls epoxy

coatings out of its Louisiana facility and through Glen attempted to market EC92

in Louisiana the sale of which is alleged by Enviroshield to be an unfair trade

In its brief Enviroshield relies on several documents in the record it claims illuminatesGlnand Lonestarnergysactivities in Louisiana specifically an invaace shawing Energyspayment for shipinent af EC92 to Lonestars Louisiana facility and onestarEnergysmarketing ofEC92 in Louisiana thraugh six sales represntalives However this court will notconsider this evidence in this appeal in determining the jurisdictional issue as it was not properlyand officially offered into evidence at the hearing on the exception ofjurisdiction See Denouxv Vessel Management Services Inc 20072143 p6La521 Q893So2d 84 88

14

practice Lonestar is Enerys only customer Mr Ginsbergstestimony

established that after Glen informed him that he had formed a new company

Energy most of the sales of EC92 were to Energy Under these circumstances

we find that Energy through the actions of Glen and Lonestar has purposefully

availed itself of the privilege of conducting business in this state and that its

activities are such that it could reasonably be expected to be haled into court in

Louisiana

As Enviroshield met its burdnof showing that minimum contacts existed it

became incumbent on Energy to prov that the assertion of jurisdiction would be

so unreasonable as to overcome the presumption of reasonableness created by

Energys minimum contacts with Louisiana Energy offered no vidence to

demonstrate that it would be unreasonable to require it to defend this lawsuit in

Louisiana Because the alleged cause of action is related to and arises out of

Energys purposeful contacts in Louisiana and because Energy failed to

demonstrate how the assertion of jurisdiction over it by a Louisiana court would be

unfair we conclude that the assertion of specific jurisdiction over Energy by aLouisiana court is proper Accordingly the trial court properly denied the

exception ofjurisdiction raised by Energy

Glenscontacts with Louisiana

The evidence demonstrated that Glen as the president of Lonestar met with

Enviroshield in Louisiana regarding its product and entered into the contract

serving as the basis of this lawsuit with Enviroshield a Louisiana company toallow Lonestar to market and sell the Enviroshield product The record also

indicates that Glen targeted a Louisiana resident to market EC92 in Louisiana It

is undeniable that his activities in Louisiana satisfy the minimum contacts tst

z

In their brief respondents note state thatIonestar admitted to the jurisdiction of theLouisiana court because it has and continues to engage in continuous and systenatic contactswith Louisiana

I5

However Glen contends that Louisiana may not assert jurisdiction over him

individually urging that the evidetce demonstrated that all of his contacts wth

Louisiana were carried out as a corporate representative of Lonestar He argues I

that he is protected from having to defend the lawsuit in his individual capacity by

the fiduciary shield doctrine This doctrine is rooted in th principle that the acts

of a corporate officer in his corporate capacity cannot form the basis foar

jurisdiction over him in an individual capacity and requires a court to look at the

individual and personal contacts of the officer and employee within the forumstate Southeast Wireless Network nc v US Telemetry Corporation US

20061736 p 11 La411079S4 So2d 120 128 However the fiduciary shield

doctrine will not defeat pearsonal jurisdiction wher the nonresident corporate

agnt commits a tort within a forum state that would subject him to personalliability under the laws of that state Id

In Southeast Wreless Network Inc 20061736 at p 12 954 So2d at

129 the Louisiana supreme court rejected the application of the fiduciary shield

doctrine to defeat the assertion of personal jurisdiction over a director of a foreigncorporation which had its principle place of business in Lousiana where all of the

actions giving rise to the cause of action were done in the directors corporatecapacity In so doing the court observed that the director should have been aware

that he could be subject to personal liability for his actions or inactions underLouisiana law Thus the court concluded despite the fact that the directors

actions may have been don in a corporate capacity Louisiana law would not

permit a directors wrongdoings in the sale of securities to escape personalresponsibility via a corporate shield Id

Similarly we find the fduciary shield doctrine to be inapplicable to defat

the exercise of personal jurisdiction over Glen Glen is being sued in his individual

capacity for essentially creating Energy to interfere with Enviroshieldscontract

16

with Lonestar and deprive Enviroshield of business which is alleged to be an

unfaiar trade practice and an intentional interferenc with contract While Energy

was formed in Texas the record demonstrates it has virtually no corporate identity

and is in essence the alter ego of Glen who ran Energy and Lonestar

interchangeably See SteriFx Inc v Roden 41 383 p La App 2 Cir

2S06 939 So2d 533 538 Under these circumstances we decline to allow

Glen to hide bekind the fiduciary shield doctrine Because Glen had sufficient

contacts with Louisiana to justify the assertion of personal jurisdiction over him

and because he failed to demonstrate that the assertion of jurisdiction would be

fundamentally unfair the trial courts denial of his exception to jurisdiction is

proper

Ton as Contacts with Louisiana

The evidence in th record demonstrates that Tonya had very few directcontacts with Louisiana in any capacty She never lived or worked in Louisiana

did not personally own property in Louisiana and only visited th state

approximately four times in the past ten years She acknowledged that she had

come to Louisiana to visit Lonestars New Iberia facility There is no indication

that Tonya was involved in the daytoday operation of either Enrgy or Lonestaror that she was instrumental in the formation of eithrcorporation We find that

Enviroshield failed to meet its burden o proving by a preponderance of the

evidence that Tonya had sufficient contacts with Louisiana to justify the exerciseof personal jurisdiction over her in an individual capacity Accordingly we

reverse that portion of the trial courts judgment denying Tonyas exception ofpersonal jurisdiction

CONCLUSION

For the oregoing reasons we grant the writ in part and deny the writ in part

The trial courts judgment denying the exception of personal jurisdiction is

17

reversed in part and the exception is maintained as to Tonya Cronin Judgment is

entered dismissing Enviroshields lawsuit against Tonya Cronin with prejudice

In all other respects the writ is denied

WRIT GRANTED N PART AND DENIED IN PART

II

18

STATE OF LOUISIANA

COURT QF APPEAL

FIRST CIRCUIT

Z010 CW Ofi14R

ENVIROSHIELD TECHNOLOGISLLC

VERSUS

LONESTAR CORROSION SERVICES INC TONYA CRONIN GLENCRONIN ENERGY COATING INC AND RICHARD SAUCE

McCLENDON concurs and assigns reasons

Based on the totality of the vidence presented I concur with the result

reached by the majority