Stephen Joseph Stancil and Mustard Seed Construction, LLC v. Mark G. Gillam, Frank Cantone, Kevin Gregg, Joseph Michael Smith, and Aaron Sele

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
STEPHEN JOSEPH STANCIL and No. 08-24-00365-CV
MUSTARD SEED CONSTRUCTION, §
LLC, Appeal from the
§
Appellants, 395th District Court
§
v. of Williamson County, Texas
§
MARK G. GILLAM, FRANK CANTONE, (TC# 21-2054-C395)
KEVIN GREGG, JOSEPH MICHAEL SMITH, §
and AARON SELE,
§
Appellees.

MEMORANDUM OPINION 1

Appellants, Stephen Joseph Stancil and Mustard Seed Construction, LLC, contacted Mark

Gillam Enterprises (MGE), a California financial advisor corporation to find investors who would

loan them money for the purchase of property in Texas. When the deal fell through, Appellants

filed the underlying suit, including as individual defendants the founder, an employee, and clients

of MGE. The Appellees, all nonresidents of Texas, filed special appearances. This interlocutory

1
This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code Ann.
§ 73.001. We follow the precedent of the Third Court of Appeals to the extent it might conflict with our own. See
Tex. R. App. P. 41.3.
appeal challenges the trial court’s order granting those special appearances and dismissing

Appellees from the suit.

I. FACTUAL BACKGROUND
On July 1, 2021, Stancil contracted to buy 55 acres of land in Taylor, Texas from Emily Jo

Simons for approximately $2.4 million. Stancil formed Mustard Seed Construction, LLC for the

purposes of purchasing the property and developing it or re-selling it to a third-party developer.

Closing was originally scheduled for October 28, 2021, but was extended by agreement to

December 20, and then December 21, 2021.

As the December 20 closing date approached, Appellants still lacked the capital to purchase

the property. To help him find the funding, Stancil’s attorneys reached out to Appellee Mark

Gillam, the founder and president of MGE, an investment adviser corporation located in

California. Stancil says that Gillam represented that MGE was the agent for Appellees Kevin

Gregg, Joseph Michael Smith, and Aaron Sele (the investors). According to Stancil’s petition, he

had numerous discussions with Gillam beginning on December 15, five days before the closing

date, and they reached an agreement that the investors would loan Mustard Seed $2.7 million to

purchase the property and in return, would receive interest on the loan and a 10% equity interest

in Mustard Seed. The loan was to be secured by a deed of trust on the property. On December 16,

2021, Gillam formed MGE Venture I, LLC in Texas to, as he claimed, hold the investors’ overall

interest in the property.

Appellee Frank Cantone, an employee of MGE, communicated with and sent $2.7 million

to the escrow agent in Texas through five separate wires. Those wires appeared to come from the

individual accounts for Gregg, Smith, Sele, and a trust account held by Gillam. Appellants

characterize the wiring of money as the Appellees’ recognition of and performance of the contract

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by placing the funds in escrow. Appellees, on the other hand, say it was nothing more than placing

the funds with a third party to show good faith while they continued their due diligence in

investigating the potential investment.

On December 20, 2021, Gillam informed Stancil that Appellees would not move forward

with the investment because he learned of possible high levels of arsenic in the soil from historic

cotton farming. Simons refused further extensions of the contract with Stancil and contracted to

sell the property to Texas Multifamily Capital, LLC.

II. PROCEDURAL BACKGROUND
Appellants filed suit against Appellees individually for breach of contract, breach of

fiduciary duties, and fraud. 2 Appellees each filed a special appearance accompanied by an

affidavit. In their affidavit, each testified that he lives in another state, is registered to vote there,

has a drivers’ license there, does not have an office or property in Texas, does not have a P.O. Box

in Texas, does not own a vehicle registered in Texas, has not sued or been sued in Texas, has not

been served with process in Texas, and did not consent to personal jurisdiction in the courts of

Texas. Gillam also testified in his affidavit that “[t]he potential transaction was always on behalf

of [MGE Venture I, LLC]” which he formed in Texas so that “if the transaction would later be

consummated–though it never was–that the LLC’s individual members would have ownership

interests in the LLC, which would hold the LLC’s overall interest in the property considered to be

part of the potential transaction.” In his affidavit, Cantone testified that his only connection to the

potential investment was as an employee of MGE and that he “was not personally involved with

negotiating it with any counterparty or even discussing it with anyone outside MGE or its clients.”

2
They also sued Simons, Texas Multifamily, Chris Epp, Husch Blackwell, Nikelle Meade, Michael Silver, MGE
Venture I, LLC, and Andy Pettitte. The trial court entered summary judgment for Simons. The other parties were not
affected by the trial court’s order granting the special appearance and are not parties to this appeal.

3
Appellants filed a response to the special appearance, sought discovery, and requested that

the trial court compel the discovery or continue the special appearance hearing until after they

were able to obtain more discovery.

The trial court held a non-evidentiary hearing on all three motions (special appearance,

motion to compel and motion for continuance) at the same time. The trial court granted the special

appearances and made no express ruling on the other motions. The parties did not request, and the

trial court did not make, findings of fact or conclusions of law.

This appeal followed. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (allowing for

interlocutory appeals of special appearance rulings). Appellants argue that the trial court erred in

(1) granting Appellees’ special appearances and (2) refusing to grant a continuance to allow

Appellants time to conduct jurisdictional discovery.

III. PERSONAL JURISDICTION

A. Standard of review

The existence of personal jurisdiction is a question of law that we review de novo. Old

Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018). However, in ruling on

special appearances, the trial court must sometimes resolve questions of fact. If the trial court has

not issued findings of fact and conclusions of law, all findings necessary to support the ruling are

implied. Bell, 549 S.W.3d at 558. Factual findings relevant to the jurisdictional determination can

be challenged for legal and factual sufficiency. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d

789, 795 (Tex. 2002). In a legal sufficiency review, we must affirm if there was more than a

scintilla of evidence to support the finding. Id. In a factual sufficiency review, we must affirm

unless “the evidence is so weak or if the finding is so against the great weight and preponderance

4
of the evidence that it is clearly wrong and unjust.” Dow Chem. Co. v. Francis, 46 S.W.3d 237,

242 (Tex. 2001).

B. Personal jurisdiction

Under the Texas long-arm statute, Texas courts can assert personal jurisdiction over a

nonresident when the nonresident does business in the State of Texas. Tex. Civ. Prac. & Rem.

Code Ann. § 17.042. The statute lists specific acts that constitute doing business: entering into a

contract with a Texas resident “and either party is to perform the contract in whole or in part in

this state;” “commit[ing] a tort in whole or in part in this state;” or recruiting a resident for

employment. Id. That list is not exclusive; it is “[i]n addition to other acts that may constitute doing

business.” Id. This broad language allows the Texas long-arm jurisdiction to reach as far as due

process allows. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007). The

exercise of jurisdiction satisfies due process when the “nonresident defendant has established

minimum contacts with the forum state, and the exercise of jurisdiction comports with ‘traditional

notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S.

310, 316 (1945). Minimum contacts exist if the nonresident has “purposefully availed [him]self of

the privilege of conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” Id.

When determining if a defendant has purposely availed himself of Texas’s benefits and

protections, we consider whether he purposefully directed his contacts into Texas such that he

could “reasonably anticipate being haled into court here.” Searcy v. Parex Res., Inc., 496 S.W.3d

58, 66–67 (Tex. 2016). we are guided by three principles in our inquiry:

First, only the defendant’s contacts with the forum are relevant, not the unilateral
activity of another party or a third person. Second, the contacts relied upon must be

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purposeful rather than random, fortuitous, or attenuated . . . . Finally, the defendant
must seek some benefit, advantage or profit by ‘availing’ itself of the jurisdiction.

Moki Mac, 221 S.W.3d at 575 (cleaned up).

There are two types of personal jurisdiction that can be asserted over a nonresident–general

and specific. Texas has general jurisdiction over a nonresident defendant when his “affiliations

with the [s]tate are so continuous and systematic as to render it essentially at home in the forum

[s]tate.” Searcy, 496 S.W.3d at 72 (citing Daimler AG v. Bauman, 571 U.S. 117, 138–39 (2014).

Specific jurisdiction exists when the defendant’s contacts with the forum are the basis for

the cause of action. Searcy, 496 S.W. 3d at 67. With specific jurisdiction, our primary focus is on

the relationship between defendant, the forum, and the litigation. Kelly v. Gen. Interior Const.,

Inc., 301 S.W.3d 653, 660 (Tex. 2010). “[F]or a nonresident defendant’s forum contacts to support

an exercise of specific jurisdiction, there must be a substantial connection between those contacts

and the operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585. Unlike general jurisdiction,

the quantity of the contacts is irrelevant; Texas can have jurisdiction based on only one contact if

that contact is also the basis for the litigation. Moncrief Oil Intern. Inc. v. OAO Gazprom, 414

S.W.3d 142, 151 (Tex. 2013).

Appellants argue only that the trial court had specific jurisdiction and not general

jurisdiction over the Appellees. While our analysis is grounded in the facts related to the cause of

action, we must nevertheless focus our analysis on the individual defendant’s contacts with Texas

related to the causes of action and not on the merits of the case. Michiana, 168 S.W.3d at 791–92;

TV Azteca v. Ruiz, 490 S.W.3d 29, 35 n.1 (Tex. 2016); Yahsi v. Visor Muhendislik Insaat Turizm

Gida Ve Mekanik Taahhut Ticaret Ltd. Sirketi, 651 S.W.3d 79, 94 (Tex. App.—Houston [14th

Dist.] 2021, no pet.).

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The second prong of the jurisdictional analysis requires us to determine whether “the

exercise of jurisdiction comports with traditional notions of fair play and substantial justice.” BMC

Software Belg., 83 S.W.3d at 795. Once a court finds that a defendant has had minimum contacts

with Texas and purposely availed itself of the benefits and protections of Texas, it is “[o]nly in

rare cases” that jurisdiction is negated on fair play and substantial justice grounds. Guardian Royal

Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991). It is the

defendant’s burden to show why the exercise of jurisdiction would be unfair and unjust:

[W]here a defendant who purposefully has directed his activities at forum residents
seeks to defeat jurisdiction, he must present a compelling case that the presence of
some other considerations would render jurisdiction unreasonable. Most such
considerations usually may be accommodated through means short of finding
jurisdiction unconstitutional. For example, the potential clash of the forum’s law
with the “fundamental substantive social policies” of another State may be
accommodated through application of the forum’s choice-of-law rules. Similarly, a
defendant claiming substantial inconvenience may seek a change of venue.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985).

C. Challenging personal jurisdiction

The parties bear shifting burdens of proof in a personal jurisdiction challenge. Kelly, 301

S.W.3d at 658. The plaintiff initially has the burden to adequately allege a basis for jurisdiction.

Id. Alleging an act that, if true, provides a cause of action in Texas is not sufficient, as we are

concerned only with whether a defendant’s acts constitute minimum contacts with Texas, not

whether the defendant’s will ultimately be liable for those acts. Id. at 660; Steward Health Care

Sys. LLC v. Saidara, 633 S.W.3d 120, 126 (Tex. App.—Dallas 2021, no pet.); Silber v. Shallow

Prod. Sols., Inc., 656 S.W.3d 500, 516 (Tex. App.—El Paso 2022, no pet.). The pleading

requirement is “minimal” and “can be satisfied with an allegation that the nonresident defendant

is doing business in Texas or committed tortious acts in Texas.” Gaddy v. Fenenbock, 652 S.W.3d

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860, 871 (Tex. App.—El Paso 2022, no pet.); Brown v. Hamrick, No. 05-23-00335-CV, 2025 WL

341898, at *4 (Tex. App.—Dallas Jan. 30, 2025, no pet.) (mem. op.); Tex. Civ. Prac. & Rem. Code

Ann. § 17.042.

The burden then shifts to the defendant. He can challenge the trial court’s personal

jurisdiction over him by filing a special appearance. Tex. R. Civ. P. 120a(1). If the plaintiff did not

meet his initial burden by alleging sufficient grounds of jurisdiction, all the defendants must do to

negate jurisdiction is provide evidence that he does not live in Texas. Kelly, 301 S.W.3d at 658–

59. But if the pleadings do sufficiently allege grounds for jurisdiction, the defendant must then

negate all alleged jurisdictional grounds. Id. at 658. He can do this in two ways–factually or legally.

He can present evidence disproving the factual allegations of his contacts with Texas in which case

the burden shifts back to the plaintiff to provide his own evidence. Id. at 659. Or the defendant can

show that even taking all jurisdictional allegations as true, they are not sufficient as a matter of

law to establish jurisdiction. Id.

D. Analysis

We now turn to whether the parties in this case met their respective burdens. At the outset,

we note that some of the petition’s “jurisdictional facts” allege contacts that are not relevant to the

operative facts of this case. For example, Appellants asserted that Gillam and Cantone make

frequent calls to Texas to seek clients, maintain relationships with existing clients, and seek, make,

and manage Texas investments. They also alleged that some of Gillam and Cantone’s clients are

“high-net-worth individuals some of whom live and do business in Texas.” Similarly, in their

special appearance affidavits, all the Appellees denied contacts with Texas that would give the

court general jurisdiction over them. For example, they denied living in Texas, owning property

in Texas, being registered to vote in Texas, or having a drivers’ license or registered vehicle in

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Texas. Because Appellants argue that the trial court had specific jurisdiction over the Appellees,

these allegations are not relevant. We focus instead on each Appellees’ contacts as they relate to

the operative facts of this litigation.

(1) Mark Gillam

(a) Sufficiency of the allegations

Appellants alleged in their petition that in submitting the Uniform Application for

Investment Adviser Registration to the SEC, “Gillam himself and ‘Mark Gillam Enterprises’ []

consented to the jurisdiction of the State and Federal Courts of the State of Texas.” The application,

which was attached as an exhibit to the petition, states that by signing it, Gillam was appointing

the Texas Secretary of State as MGE’s agent for service of process and agreed that service on that

agent can be made by certified mail. But the entity applying for registration and consenting to

service was MGE, not Mark Gillam as an individual. Capital Fin. & Commerce AG v. Sinopec

Overseas Oil & Gas, Ltd., 260 S.W.3d 67, 82 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

(“Settled law always presumes that corporations exist as separate entities, and that corporate

officers are separate from their corporation.”) But, even if this consent did apply to Gillam

individually, it is consent only as to designating an agent and method of service of process, not to

the jurisdiction of Texas courts. Juarez v. United Parcel Serv. de Mexico S.A. de C.V., 933 S.W.2d

281, 285 (Tex. App.—Corpus Christi–Edinburg 1996, no writ) (“designation of an agent for

service of process in Texas does not amount to a general consent to jurisdiction, and is merely one

of many factors to be considered in determining whether minimum contacts exist”).

According to the petition’s allegations, Gillam had the following contacts with Texas

related to the operative facts of this litigation:

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• Gillam, in his individual capacity and as an agent for Gregg, Smith, and Sele,
“reached an agreement with Appellants through telephonic meetings and
communications” by which Appellees would loan money to Mustard Seed to
purchase and develop the property in return for a deed of trust securing the loan,
interest at 6% per annum, and an equity interest (also described as a profits interest)
in Mustard Seed.

• Gillam formed a corporation in Texas, MGE Ventures I, LLC, to hold the proceeds
from the loan. Of the money wired to the Texas escrow agent, $400,000 was from
a trust account in Gillam’s name.

• Gillam committed torts by making fraudulent representations in connection with
the alleged contract and interfering with the contracts Stancil had with Simons and
the escrow agent.

We hold that these allegations met Appellants’ initial minimal burden of pleading sufficient

jurisdictional facts. Shahin v. Deyaar Dev. Corp. USA, 367 S.W.3d 274, 283–84 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (finding sufficient allegations based on allegations of a

fraudulent real estate transaction involving Texas property and the formation of a Texas

corporation).

(b) Special Appearance–Fiduciary Shield

The burden then shifted to Gillam to negate these grounds of jurisdiction. In his special

appearance affidavit, Gillam states that he is the founder and employee of Mark Gillam Enterprises

and that he was contacted by Stancil about the potential investment. Gillam did not dispute that he

participated in discussions with Stancil who was in Texas about the investment but argued that the

fiduciary shield doctrine shielded him from the exercise of jurisdiction because all his negotiations

were on behalf of MGE Venture I, LLC.

“The fiduciary shield doctrine protects a corporate officer or employee from the trial

court’s exercise of general jurisdiction when all of the individual’s contacts with Texas were on

behalf of the employer.” Morris v. Kohls-York, 164 S.W.3d 686, 696–97 (Tex. App.—Austin

10
2005, pet. dism’d). The fiduciary shield “does not, however, protect employees from liability for

their own tortious conduct committed while acting as an employee.” Morris, 164 S.W.3d at 697;

see also Silber, 656 S.W.3d at 517; Tabacinic v. Frazier, 372 S.W.3d 658, 668–69 (Tex. App.—

Dallas 2012, no pet.); Gen. Elec. v. Brown & Ross Int’l Distribs., Inc., 804 S.W.2d 527, 532–33

(Tex. App.—Houston [1st Dist.] 1990, writ denied); Cagle v. Clark, 401 S.W.3d 379, 390–91

(Tex. App.—Texarkana 2013, no pet.); Booth v. Kontomitras, 485 S.W.3d 461, 482 (Tex. App.—

Beaumont 2016, no pet.); Morris v. Powell, 150 S.W.3d 212, 221 (Tex. App.—San Antonio 2004,

no pet.). The existence of specific personal jurisdiction over a nonresident for acts done as an

employee or corporate officer therefore depends on whether the plaintiff has alleged that the

defendant committed a tort.

Appellants argue that Gillam is not shielded from the exercise of jurisdiction because they

have alleged that he committed torts. Appellants pled that, in addition to breaching the contract,

Gillam committed the following torts:

a. fraudulently representing to Plaintiffs the authority of Gillam and Cantone to
act as agents for and on behalf of . . . Gregg, Smith and Sele, and enter into
binding contracts on their behalf;

b. fraudulently representing to Plaintiffs, the contractual nature of their dealings
and their intention to be bound and perform to induce Plaintiffs away from
seriously negotiating and contracting with others;

c. fraudulently representing that . . . Gregg, Smith and Sele were to be
participating in the contractual arrangements reached with Plaintiffs, and later
claiming that . . . Gregg, Smith and Sele, were not participating, in part thus
making promises with no intention of fulfilling them;

d. agreeing to the terms of a contract with no intention of being bound; and

e. falsely claiming that they were attempting to terminate their contract they had
with Plaintiffs because of the “potential” of arsenic in the soil on the Texas

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Property, when that potential had been known to the MGE Defendants actually
and/or constructively, for weeks, was a minimal, immaterial problem if it was
a problem at all; [and]

. . .

[f]. instructing the Texas-based escrow agent to return their funds thereby making closing
on December 20, 2021, impossible.

A party cannot avoid the fiduciary shield and obtain jurisdiction over an individual by

artfully pleading a contract action as a tort. Abruzzo, LLC v. Walesa, No. 04-12-00747-CV, 2013

WL 1225626, at *5 (Tex. App.—San Antonio Mar. 27, 2013, no pet.) (mem. op.) (finding that the

defendant did not commit torts allowing for specific jurisdiction because “the factual basis for the

tort causes of action . . . are alleged breaches of the provisions contained in the Purchase

Agreement” and because the alleged damages were “the subject matter of the contract.”). In

determining whether Appellants pled that Gillam committed a tort, we look at the conduct that

forms the basis of the cause of action and not the cause of action itself:

If the defendant’s conduct . . . would give rise to liability independent of the fact
that a contract exists between the parties, the plaintiff’s claim may also sound in
tort. Conversely, if the defendant’s conduct . . . would give rise to liability only
because it breaches the parties’ agreement, the plaintiff’s claim ordinarily sounds
only in contract.

Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). We also consider the plaintiff’s

loss. “When the only loss or damage is to the subject matter of the contract, the plaintiff’s action

is ordinarily on the contract.” Id. Some of the torts alleged by Appellants, such as claiming false

reasons to terminate the investment agreement and demanding the return of the funds, are contract

claims simply recast as tort claims. The fiduciary shield applies to those claims.

However, claims of fraudulent inducement are properly brought as tort claims, even when

a contract is made as a result. Formosa Plastics Corp. USA v. Presidio Engineers & Contractors,

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Inc., 960 S.W.2d 41, 47 (Tex. 1998). “A promise of future performance constitutes an actionable

misrepresentation if the promise was made with no intention of performing at the time it was

made.” Id. at 48. Therefore, the fiduciary shield does not apply to protect Gillam from jurisdiction

over allegations that he made fraudulent representations to induce Appellants to enter a contract

or that he never intended to fulfill his contractual obligations. Gillam’s affidavit is silent about this

basis of jurisdiction, and he produced no evidence negating the grounds for jurisdiction pertaining

to these tort claims. Gillam failed meet his burden to produce evidence to negate the grounds for

jurisdiction over him for the fraudulent inducement claims. He also failed to meet his burden

regarding the second jurisdictional prong by showing any compelling reason why the exercise of

jurisdiction over him would not comport with fair play and substantial justice. Guardian Royal

Exch. Assur., 815 S.W.2d at 231; Fed. Corp., Inc. v. Truhlar, 632 S.W.3d 697, 726 (Tex. App.—

El Paso 2021, pet. denied).

The burden then returned to Appellants to provide evidence defeating the fiduciary shield

for the remainder of the claims by showing his actions were not on behalf of MGE. Although

allegations are sufficient for a plaintiff to meet his initial burden to establish jurisdiction, they are

not once the defendant submits evidence negating the grounds for jurisdiction. To meet their

burden, Appellants had to produce evidence. Kelly, 301 S.W.3d at 659. Appellants filed a response

to the special appearance that included many of the same allegations and arguments as the petition,

but no evidence. 3

Because Appellants pled that Gillam committed torts for which he could be individually

liable and Gillam produced no evidence otherwise, there was not more than a scintilla of evidence

to support the trial court’s order granting his special appearance as to those claims. We reverse the

3
The response, which was not sworn, is not evidence. Yahsi, 651 S.W. 3d at 88.

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trial court’s order dismissing the fraudulent misrepresentation claims against Gillam and affirm

the order for all other claims against Gillam.

(2) Frank Cantone

(a) Sufficiency of the allegations

In their petition, Appellants alleged that Cantone is employed by Gillam and provides

financial adviser services “through the trade name ‘Mark Gillam Enterprises.’” They claimed that

Cantone, like Gillam, was engaged in negotiations with Stancil and made fraudulent

misrepresentations. In addition, they asserted that Cantone wired a total of $2.7 million to an

escrow agent located in Texas. Like with Gillam, we find that these allegations were sufficient for

Appellants to meet their initial burden of alleging that Cantone conducted business in Texas.

(b) Special Appearance – Fiduciary Shield

Cantone, like Gillam, also relied on the fiduciary shield. In his special appearance, Cantone

argued that “there are zero allegations that [he] was involved outside of his connection to his

employer.” Unlike Gillam, Cantone also denied being part of the negotiations or discussions. In

his affidavit, he stated:

My only conceivable connection to the matters at issue in this lawsuit is that I am
an employee of Mark Gillam Enterprises, Inc. (“MGE”), a corporation organized
in the State of California, which provides portfolio management and advisory
services for its clients based on their individual goals, objectives, time horizon and
relative risk tolerance. While I was aware that the potential transaction was being
considered, I was not personally involved with negotiating it with any counterparty
or even discussing it with anyone outside MGE or its clients; my awareness of the
aborted transaction arose only out of my work as an employee for MGE and its
clients. I hold no ownership stake in MGE, nor would I have been a member of
MGE Venture I, LLC.

Cantone not only negated the grounds for jurisdiction over the contract claims by raising

the fiduciary shield, but he also negated the grounds for jurisdiction over the tort claims with his

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testimony that he was not part of the discussions where any alleged fraudulent representations

would have been made. The burden then shifted back to Appellants, and as noted above, they failed

to produce any evidence in response. Thus, Appellants did not meet their burden to produce any

evidence showing that Cantone acted as an individual, not an employee, or that Cantone

communicated with the Appellants such that he could have committed the tort of fraudulent

misrepresentation for which he could be personally held liable.

The evidence was therefore sufficient to support the trial court’s implied findings that

Cantone’s contacts were in his capacity as an employee and could not support jurisdiction against

him as an individual. The trial court did not err in granting his special appearance.

(3) Gregg, Smith, and Sele 4

The Appellants do not allege that Gregg, Smith, or Sele themselves had any contacts with

Texas regarding the operative facts of this suit. Nonetheless, Appellants alleged that the contacts

of Gillam and Cantone should be imputed to them because Gillam and Cantone acted as their

agents. Appellants are correct that the acts of an agent can be imputed to the principle to give a

court personal jurisdiction over the principal, but they have failed to show that Gillam and Cantone

were agents of Gregg, Smith, and Sele.

In an agency relationship, the principal has “the right to dictate the means and details of

the process by which the agent will accomplish the task.” of the agent. Olympia Capital Associates,

L.P. v. Jackson, 247 S.W.3d 399, 413 (Tex. App.—Dallas 2008, no pet.). This is distinguishable

4
Appellants refer to these defendants collectively as the MGE Money Sources. Appellees argue that this is improper
because “each defendant’s contacts must be assessed individually.” It is true that a plaintiff cannot aggregate the
contacts of multiple defendants to show that they are all subject to jurisdiction. See, e.g. Rush v. Savchuk, 444 U.S.
320, 331–32 (1980). Appellants, however, were not aggregating the contacts of Gregg, Smith, and Sele, but were
discussing them as a group because the jurisdictional facts and arguments for each are identical. In the interest of
efficiency, we also address them together.

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from the relationship with an independent contractor, in which “one has the right to control the

end sought to be accomplished, but not the means and details of how it should be accomplished[.]”

Id. This distinction is important in the personal jurisdiction context “because an agent’s contacts

with the forum are attributable to the principal, but the contacts of an independent contractor are

not.” Id. Therefore, the nature of Gillam and Cantone’s relationship with Gregg, Smith, and Sele

was critical. If Gillam and Cantone were acting as agents and not independent contractors, the trial

court could have jurisdiction over Gregg, Smith, and Sele based solely on Gillam and Cantone’s

contacts with Texas. Atiq v. CoTechno Group, Inc., No. 03-13-00762-CV, 2015 WL 6871219, at

*5 (Tex. App.—Austin Nov. 4, 2015, pet. denied) (mem. op.) (“When an agent negotiates a

contract for its principal in Texas, it is the principal who does business in this state, not the agent.”)

(quoting Mort Keshin & Co. v. Houston Chronicle Publ’g Co., 992 S.W.2d 642, 647 (Tex. App.–

Houston [14th Dist.] 1999, no pet.)); see also Peter v. Stern, No. 05-20-00021-CV, 2020 WL

4783192, at *4 (Tex. App.—Dallas Aug. 18, 2020, pet. denied) (mem. op.).

While allegations of contacts with Texas are sufficient for a plaintiff to meet its initial

burden to establish jurisdiction, allegations of an agency relationship are not by themselves

sufficient to establish that a court has jurisdiction over a nonresident because of an agent’s acts.

Sinopec Overseas Oil & Gas, Ltd., 260 S.W.3d at 83–84 (characterizing agency theory as an

exception to the general rule that the Plaintiffs initial burden is met by only alleging grounds for

jurisdiction); ShopStyle, Inc. v. rewardStyle, Inc., No. 05-19-00736-CV, 2020 WL 4187937, at *15

(Tex. App.—Dallas July 21, 2020, no pet.) (mem. op.) (same). We cannot presume the agency

relationship exists and the party relying on the relationship–in this case, Appellants– has the burden

to prove an agency relationship. Johnson v. Kindred, 285 S.W.3d 895, 901 (Tex. App.—Dallas

2009, no pet.); Yahsi, 651 S.W.3d at 95–96; Jackson, 247 S.W.3d at 412–13.

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Appellants alleged in their petition that Gillam and Cantone had actual and apparent

authority to act for Gregg, Smith, and Sele, but at no point did they produce any evidence that

Gregg, Smith, and Sele had the right of control required in an agency relationship. 5 Schott Glas v.

Adame, 178 S.W.3d 307, 317 (Tex. App.—Houston [14th Dist.] 2005, pet. denied), abrogated on

other grounds by PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163 (Tex. 2007)

(“Because appellees presented no evidence that Schott Glas controlled the means and details of

Merino’s work, the evidence is legally and factually insufficient to support the trial court’s implicit

finding that Merino is Schott Glas’s agent.”).

Because Appellants did not meet their burden to prove the agency relationship, we hold

that the evidence was sufficient to support the trial court’s implied finding that Gillam and

Cantone’s contacts with Texas could not be imputed to Gregg, Smith, and Sele. Because Gregg,

Smith, and Sele did not have minimum contacts with Texas related to the operative facts of this

suit, the trial court did not err in granting their special appearances.

Appellant’s first issue is sustained as to claims of fraudulent representation by Gillam but

overruled as to the other claims against Gillam and all claims against Cantone, Gregg, Smith, and

Sele.

IV. DENIAL OF CONTINUANCE

In their second issue, Appellants contend that the trial court erred in denying a continuance so

that they could obtain discovery and be able to provide the evidence that they needed to establish

jurisdiction.

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However, even if allegations of agency were sufficient, at least initially, Appellants contradicted their allegation of
agency by also claiming that Gillam and Cantone “maintain[ed] discretionary control” over Gregg, Smith, and Sele’s
personal accounts. As explained above, in an agency relationship, the agent does not have discretionary authority;
instead, the principal controls the means and details of the agent’s acts.

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A. Right to jurisdictional discovery

A party is entitled to discovery that is “essential to prove at least one disputed factor that

is necessary to the plaintiff’s proposed theory or theories of personal jurisdiction” even if the

discovery is also relevant to the merits of the case. In re Christianson Air Conditioning &

Plumbing, LLC, 639 S.W.3d 671, 677–78 (Tex. 2022). Indeed, “the results of discovery processes”

are one of the things that a trial court is to consider when ruling on a special appearance. Tex. R.

Civ. P. 120a(3).

Appellants served discovery requests on Gillam, Cantone, and Smith. Appellants represent

that the responses were mostly objections on the basis that a special appearance was pending.

Appellees on the other hand, assert that they did respond to requests that related to the alleged

grounds of jurisdiction. They claim to have provided more than 700 pages of discovery 6, including

responses from Gillam and Cantone

. . . that, among other things, related to their employment by [MGE] and the work
they performed in connection with the matters at issue, and MGE Venture I, LLC
produced relevant, responsive documents and communications that were
statements or communications made in connection with (a) the proposed
transaction, (b) MGE Venture I, LLC and its membership and creation, (c) the
money that MGE Venture I, LLC moved into a trust account to show good-faith
interest in considering the potential transaction, and (d) the due diligence MGE
Venture I, LLC reviewed and which ultimately caused MGE Venture I, LLC to
discontinue moving forward with the proposed transaction.

The record also indicates that Appellees responded to some requests. The responses attached as

exhibits to Appellants’ motion to compel show that some responses were made, and documents

were produced subject to the special appearances. 7

6
Appellants say that these responses were from MGE Venture I, LLC and that Appellees did “not address the
deficiencies in failing to respond to the balance of Appellants’ discovery requests.”
7
The record also shows that the discovery was not narrowly tailored to request information essential to the
jurisdictional question. For example, Cantone was asked to produce all communications between him and the other

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We are not asked, however, to resolve whether Appellees sufficiently responded to

discovery, but whether the trial court erred in denying a continuance.

B. Standard of review

We review denials of continuances for jurisdictional discovery for an abuse of discretion.

Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d at 676. Rule 120a allows for

continuances to conduct discovery:

Should it appear from the affidavits of a party opposing the [special appearance]
that he cannot for reasons stated present by affidavit facts essential to justify his
opposition, the court may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is
just.

Tex. R. Civ. P. 120a(3). If a party does not request a continuance in the manner dictated by Rule

120a, the trial court does not abuse its discretion in denying a continuance. Parex Res., Inc. v. ERG

Res., LLC, 427 S.W.3d 407, 433–34 (Tex. App.—Houston [14th Dist.] 2014), aff’d sub nom.

Searcy v. Parex Res., Inc., 496 S.W.3d 58 (Tex. 2016).

C. Analysis

Appellants’ first and supplemental motions for continuance include affidavits of their

counsel. The affidavits set out a summary of the facts of the case; assert that they served discovery

requests on Cantone, Gillam, and Smith to which they have not responded; tried to meet and confer

with Appellees about discovery; and noticed depositions of Cantone and Gillam which they

quashed. Appellants also outlined the requests that they made to set their motion to compel for a

hearing. The affidavits do not, however, state what information had already been produced in

discovery, what additional discovery was needed, or as required by Rule 120a, why Appellants

Appellees between December 1, 2021, until the date of his response. Nonetheless, the responses indicate that subject
to the objections and special appearance, documents were indeed produced.

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“could not “present by affidavit facts essential to justify his opposition.” Because the motion for

continuance and supporting affidavit did not comply with Rule 120a(3), the trial court did not

abuse its discretion in denying Appellants’ request for continuance. Tex. Bank & Tr. v. California

Coast Credit Union, No. 12-24-00149-CV, 2025 WL 657280, at *4 (Tex. App.—Tyler Feb. 28,

2025, no pet.) (mem. op.) (holding that trial court did not abuse its discretion in denying

continuance when affidavit did not explain “how the discovery it seeks is necessary or relevant to

establishing jurisdictional facts” or why it could not oppose the special appearance by affidavit);

Cimiano v. Halberstam, No. 02-23-00127-CV, 2024 WL 2970847, at *5 (Tex. App.—Fort Worth

June 13, 2024, no pet.) (mem. op.) (same).

We overrule Appellants’ second issue.

V. CONCLUSION

We reverse the trial court’s order granting Gillam’s special appearance as to his fraudulent

representation claims. We affirm the trial court’s order in all other respects.

MARIA SALAS MENDOZA, Chief Justice

August 13,2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

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