Beagles and Elliott v. Florida Aircraft

United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
No. 03-10063
Summary Calendar
_______________
BEAGLES AND ELLIOTT ENTERPRISES, LLC,
Plaintiff-Appellee,
VERSUS
FLORIDA AIRCRAFT EXCHANGE, INC., ET AL.,
Defendant,
THOMAS DAVID KING,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
No. 4:01-CV-368-A
_________________________
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant Thomas King appeals the denial
of his FED. R. CIV. P. 12(b)(2) motion to dis-
miss for lack of personal jurisdiction. Finding
Pursuant to 5TH CIR. R. 47.5, the court has *
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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no error, we affirm.
I.
Plaintiff Beagles and Elliott Enterprises,
LLC (“Beagles”), a Texas-based company,
contracted with Florida Aircraft Exchange,
Inc. (“FAE”), for the purchase and modifica-
tion of a Beechcraft Duke Aircraft. FAE of-
ficers King and John Rourke signed the con-
tract. After FAE allegedly breached the agree-
ment, Beagles sued FAE and King, premising
liability against the latter on an alter ego the-
ory. Separately, Beagles alleged that King
was liable based on an oral promise to guar-
antee performance, made after FAE had
breached the original contract.
FAE and King filed a rule 12(b)(2) motion
to dismiss for lack of personal jurisdiction. In
finding jurisdiction over FAE, the district
court relied on the company’s contractual
agreement to deliver the aircraft to Texas and
on a forum selection clause naming Tarrant
County, Texas, as the site of litigation. As to
King, the court found that Beagles had estab-
lished a prima facie case of alter ego liability.
Later, in the pretrial order, FAE and King
stipulated that “there are presently no pending
jurisdictional issues.”
At trial, the district court found FAE and
King jointly and severally liable. Without dis-
cussing whether FAE’s corporate veil should
be pierced, the court determined that King had
“agreed to be personally responsible for seeing
that the performance was completed.” This
finding was made as a result of King’s oral
promise personally to guarantee the contract if
Beagles allowed the airplane to be transported
from Florida to a new hangar in Mississippi,
before delivery to Texas. On appeal, King1
contends that Beagles never proved jurisdic-
tion by a preponderance of the evidence.
Felch v. Transportes Lar-Mex SA De CV, 92
F.3d 320, 326 (5th Cir. 1996).
II.
We review de novo a district court’s ex-
ercise of personal jurisdiction over a non-
resident defendant. Nuovo Pignone, SpA v.
Storman Asia M/V, 310 F.3d 374, 378 (5th
Cir. 2002). Where, as here, the court denies
the motion to dismiss without holding an evi-
dentiary hearing, the plaintiff must make only
a prima facie showing of the facts on which
jurisdiction is predicated. Id. The district
court should accept as true the plaintiff’s “un-
controverted allegations, and resolve in [its]
favor all conflicts between the facts contained
in the parties’ affidavits and other documen-
Because King made this oral promise for his 1
own benefit, the court determined that the Statute
of Frauds did not bar its admission. BMC Indus.,
Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1338
(11th Cir. 1998) (“Under the statute of frauds,
where the main purpose of the guarantor is to ob-
tain some benefit or serve some interest of its own
rather than to gain some advantage for the
beneficiary, that promise is considered ‘direct,’
and remains beyond the reach of the statute.”).
Insofar as King argues that the Statute of Frauds
bars the oral promise because it was made after
FAE’s breach, King does not controvert the
court’s finding that King sought to “prevent a
confrontation between plaintiff and FAE at a
crucial point in King’s maneuvers to liquidate
FAE for his personal gain.” In other words,
King’s oral promise was made for self-interested
reasons, despite FAE’s pre-existing breach. Cf.
id. at 1337 n.30 (“The likelihood that someone
would assume liability for an obligation that was
already in default is too minute to permit such a
promise to be enforced absent a writing to prove
its existence.”).

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tation.” Id. If a prima facie showing is used
to establish personal jurisdiction, the plaintiff
must nevertheless establish personal jurisdic-
tion at trial by a preponderance of evidence.
Felch, 92 F.3d at 326; DeMeloe v. Touche
Marine, Inc., 711 F.2d 1260, 1271 n.12 (5th
Cir. 1983).
Generally, personal jurisdiction over a cor-
porate officer such as King cannot be predicat-
ed on jurisdiction over the corporation. Stuart
v. Spademan, 772 F.2d 1185, 1197 (5th Cir.
1985). Jurisdiction may be asserted, however,
where the corporation is the alter ego of the
officer. Id. This determination is made by ex-
amining the “totality of the circumstances,”
Century Hotels v. United States, 952 F.2d 107,
110 (5th Cir. 1992), looking to such factors as
the degree of control and dominion exercised
by the officer, the commingling of funds,
whether corporate formalities were observed,
whether the corporation was adequately capi-
talized, and the whether the corporation trans-
acts the officers’ personal business. United
States v. Jon-T Chems., Inc., 768 F.2d 686,
691 (5th Cir. 1985).
Importantly, King does not take issue with
the preliminary finding of alter ego liability.2
Rather, he contends that at trial, Beagles failed
to prove personal jurisdiction. Instead of rely-
ing on an alter ego theory of liability, the court
found that King personally assumed the con-
tract in a separate oral promise. In sum, the
district court saw no need to decide whether
FAE’s corporate veil should be pierced.
King’s argument is tarnished by his pretrial
order stipulation that “[t]here are presently no
pending jurisdictional issues.” Though King
pled lack of personal jurisdiction in his an-
swer, FED. R. CIV. P. 8(c), his abandonment of
this defense in the pretrial order is tantamount
to a concession of personal jurisdiction.
Trans-Asiatic Oil Ltd., S.A. v. Apex Oil, 804
F.2d 773, 778-79 (1st Cir. 1986). “Once the
[pretrial] order is entered, it controls the scope
and course of the trial. FED. R. CIV. P. 16. If
a claim or issue is omitted from the order, it is
waived.” Given King’s waiver, Beagles was3
not required to prove personal jurisdiction at
trial.
AFFIRMED.
In finding the establishment of a prima facie 2
case of alter ego liability, the court relied on un-
controverted evidence that “(a) King and Rourke
organized FAE; (b) King used FAE funds for
personal purposes; (c) King commingled personal
funds with those of FAE; (d) King disregarded
corporate formalities; (e) King had used FAE
funds to pay personal obligations; and (f) King’s
withdrawals of assets from FAE resulted in its
being unable to meet its obligations.” The fact
that this evidence was uncontroverted, coupled
with King’s failure to request an evidentiary hear-
ing, compels the conclusion that the court did not
err by deciding personal jurisdiction without an
evidentiary hearing or reserving the issue for the
merits.
Valley Ranch Dev. Co. v. FDIC, 960 F.2d 3
550, 554 (5th Cir. 1992) (quoting Flannery v.
Carroll, 676 F.2d 126, 129 (5th Cir. 1982)).

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