John Feeney v. Morfin Capital Group LLC and Medone Texas MSO, LLC

Affirmed and Opinion Filed August 20, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01375-CV

JOHN FEENEY, Appellant
V.
MORFIN CAPITAL GROUP LLC AND MEDONE TEXAS MSO, LLC,
Appellees

On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-07016

MEMORANDUM OPINION
Before Justices Goldstein, Garcia, and Miskel
Opinion by Justice Goldstein
Appellant John Feeney appeals the trial court’s denial of his special

appearance. In four issues, Feeney contends that the trial court erred because

(1) appellees Morfin Capital Group LLC (Morfin Capital) and MedOne Texas MSO,

LLC (MedOne) failed to sufficiently plead and prove jurisdictional facts; (2) Feeney

lacked sufficient minimal contacts with Texas; (3) the fiduciary shield doctrine

precluded the trial court’s exercise of personal jurisdiction; and (4) the trial court’s

exercise of personal jurisdiction did not comport with traditional notions of fair play
and substantial justice. We affirm in this memorandum opinion. See TEX. R. APP. P.

47.2(a).

BACKGROUND

On June 24, 2022, Morfin Capital and MedOne, both owned by Ryan Morfin,

filed this lawsuit against Feeney and three other defendants: One Health Medical

Systems LLC (One Health), David J. Ross, and Roger Farahmand. The original

petition alleged that Feeney, Ross, and Farahmand were “the owners or principals”

of One Health and, in those roles, represented to MedOne that One Health had

sufficient financial resources to purchase MedOne’s assets. The petition further

alleged that, based on those representations, MedOne entered into an asset purchase

agreement (APA) with One Health, which the latter could not perform because it

lacked the financial resources to buy MedOne’s assets. The petition asserted a claim

for breach of contract against One Health and a claim for fraudulent inducement

against Feeney, Ross, and Farahmand. Of the four defendants, Feeney was the only

one identified by the original petition as a non-Texas resident.

On August 28, 2022, Feeney filed a special appearance, asserting that he was

a Wisconsin resident who had “no meaningful contacts with Texas[.]” In the special

appearance, Feeney complained that the original petition failed to include any factual

allegations about his contacts with Texas sufficient for the trial court to exercise

personal jurisdiction over him. In an attached declaration, Feeney testified that he

had never lived in Texas, had no property in Texas, and was “not a member or

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manager for any of the . . . limited liability companies named as parties to this

lawsuit.” Feeney scheduled an oral hearing on his special appearance for September

26, 2022.

On September 21, 2022, Morfin Capital and MedOne filed their first amended

petition, adding additional jurisdictional facts about Feeney. Namely, the first

amended petition contained an allegation that Feeney was the CEO of One Health.

It also alleged in June 2018, “Ross, Farahmand, and Feeney met with [Morfin]

several times in Texas” and “told [Morfin] that One Health had sufficient finances

to complete an acquisition of MedOne’s assets.” At the September 26 hearing, the

trial court noted that this specific allegation was not contained in appellees’ original

petition and that Feeney had not had the opportunity to adduce evidence to controvert

the allegation. The trial court therefore recessed the hearing and directed Feeney’s

counsel to “amend your special appearance in order to include whatever you believe

counters the statements in [appellees’] first amended petition.”

On November 2, 2022, Feeney filed his first amended special appearance.

Attached to the special appearance was Feeney’s unsworn declaration. In paragraph

3 of the declaration, Feeney testified that he had not “committed any torts in the State

of Texas.” Feeney scheduled a hearing on the special appearance for December 2.

On November 23, appellees filed their second amended petition. On November 29,

appellees filed a response to the special appearance and objection to Feeney’s

declaration. Specifically, appellees objected to paragraph 3 of Feeney’s declaration

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on the ground that it was conclusory. After the scheduled hearing, the trial court

entered an order sustaining appellees’ objection and denying Feeney’s special

appearance. This appeal followed.

DISCUSSION

I. STANDARD OF REVIEW

We review a trial court’s exercise of personal jurisdiction over a nonresident

defendant de novo. Steward Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 125

(Tex. App.—Dallas 2021, no pet.) (en banc). When a trial court does not issue

findings of fact and conclusions of law with its special appearance ruling, all facts

necessary to support the judgment and supported by the evidence are implied. Id.

“When the appellate record includes the reporter’s and clerk’s records, however,

these implied findings are not conclusive and may be challenged for legal and factual

sufficiency in the appropriate appellate court.” Id. at 125–26. “When the relevant

facts in a case are undisputed, an appellate court need not consider any implied

findings of fact and considers only the legal question of whether the undisputed facts

establish Texas jurisdiction.” Id. at 126.

II. APPLICABLE LAW

“A court must have personal jurisdiction over a defendant to issue a binding

judgment.” LG Chem Am., Inc. v. Morgan, 670 S.W.3d 341, 346 (Tex. 2023). Trial

courts may exercise personal jurisdiction over a nonresident defendant if it is

(1) authorized by the Texas long-arm statute, and (2) consistent with federal due-

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process guarantees. Id. (internal citations omitted). The Texas long-arm statute

“reaches as far as the federal constitutional requirements for due process will allow.”

State v. Volkswagen Aktiengesellschaft, 669 S.W.3d 399, 412 (Tex. 2023). For

example, the Texas long-arm statute permits a trial court to exercise personal

jurisdiction over a defendant who “does business in this state,” which is defined to

include a nonresident defendant who “commits a tort in whole or in part in this state.”

LG Chem, 670 S.W.3d at 346 (quoting TEX. CIV. PRAC. & REM. CODE § 17.042(2)).

“However, allegations that a tort was committed in Texas do not necessarily satisfy

the United States Constitution.” Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d

550, 559 (Tex. 2018). To establish personal jurisdiction over a nonresident, federal

due process requires that the nonresident must have “certain minimum contacts with

[the forum state] such that the maintenance of the suit does not offend ‘traditional

notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe Co. v. State of

Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)).

The minimum-contacts inquiry is a “forum-by-forum” or “sovereign-by-sovereign”

analysis that “examines the nature and extent of the defendant’s relationship to the

forum to determine whether the defendant is amenable to general or specific

jurisdiction.” Volkswagen, 669 S.W.3d at 412; see LG Chem, 670 S.W.3d at 347

(“There are two kinds of personal jurisdiction: ‘general (sometimes called all-

purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction.’”).

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General jurisdiction, which is not at issue here, “arises when a defendant’s

contacts with the foreign state are so ‘continuous and systematic’ that the defendant

is ‘essentially at home.’” Volkswagen, 669 S.W.3d at 412. “Specific jurisdiction is

different: It covers defendants less intimately connected with [the forum state], but

only as to a narrower class of claims.” Id. “Courts can exert specific jurisdiction over

a nonresident defendant when (1) the defendant engages in ‘some act by which [it]

purposefully avails itself of the privilege of conducting activities within the forum

[s]tate’ and (2) the plaintiff’s claims ‘arise out of or relate to’ those forum contacts.”

Id. at 412–13. Specific jurisdiction involves “a ‘claim-by-claim’ analysis that

focuses on the relationship between the defendant, the forum state, and the operative

facts of the litigation.” Id.

A nonresident defendant may challenge the court’s personal jurisdiction over

him by filing a special appearance. See TEX. R. CIV. P. 120a. The plaintiff bears the

initial burden to plead sufficient allegations to bring the defendant within the long-

arm statute’s reach. LG Chem, 670 S.W.3d at 346. The burden then shifts to the

defendant to negate all bases of personal jurisdiction alleged by the plaintiff. Id. “The

defendant can meet this burden on either a factual or legal basis.” Id. To challenge

the plaintiff’s allegations on a factual basis, the defendant “can present evidence that

contradicts the plaintiff’s factual allegations supporting the assertion of personal

jurisdiction,” at which point the burden shifts to the plaintiff to “respond with its

own evidence supporting its allegations.” Id. To challenge the plaintiff’s allegations

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on a legal basis, the defendant “can show that even if the plaintiff’s alleged facts are

true, the evidence is legally insufficient to establish personal jurisdiction.” Id.

III. ANALYSIS

A. Sufficiency of Appellees’ Pleadings and Proof

Feeney states his first issue as follows:

Whether Appellees sufficiently pleaded and presented evidence to
establish personal jurisdiction against Feeney where jurisdiction was
predicated on a single vague act not specific to Feeney, but all
Defendants.

We discern Feeney’s first issue to challenge: (1) whether appellees’ pleadings

alleged sufficient jurisdictional facts; and (2) whether the evidence was legally and

factually sufficient to support said allegations.

1. Pleadings

At the time of the final hearing on Feeney’s special appearance, appellees’

live pleading was their second amended petition. In it, appellees alleged the

following:

 Defendants Ross, Farahmand, and Feeney were the owners or
managers of One Health. Mr. Feeney was the CEO of One Health
and represented himself as such to [Morfin].

 In approximately June 2018, Defendants Ross, Farahmand, and
Feeney communicated with [Morfin] about One Health’s potential
acquisition of MedOne’s assets. MedOne’s assets included
MedOne’s equity ownership in several companies, located in
Dallas-Fort Worth, that provided medical services and those
companies’ contracts, inventory, and other asserts [sic].

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 Defendants Ross, Farahmand, and Feeney made those
communications to [Morfin] while he was in Texas and Mr. Feeney
sent emails to [Morfin] from a [One Health1] email address.

 During the course of the negotiations over One Health’s potential
acquisition, Defendants represented that MedOne had
approximately $4 million in EBITDA and provided financial
statements containing that number.

 In June 2018, Defendants Ross, Farahmand, and Feeney met with
[Morfin] several times in Texas. During those meetings,
Defendants, including, specifically, Mr. Feeney, told [Morfin] that
One Health had sufficient finances to complete an acquisition of
MedOne’s assets, and affirmed that the One Health financial
statements provided to Plaintiffs were accurate and that One Health
had approximately $4 million in EBITDA. Those statements were
false. In reality, One Health did not have sufficient finances to
complete the acquisition and its financial statements were materially
inaccurate, including vastly overstating its EBITDA.

 In short, Defendants, including Mr. Feeney, made false statements
and failed to disclose material information to [Morfin], in Texas,
about One Health’s financial condition.

 Based on those Defendants’ representations, MedOne decided to
sell its assets to One[ ]Health rather than to other interested parties
and entered into the [APA] with One[ ]Health on June 25, 2018.

Based on these facts, appellees asserted a claim for fraudulent inducement against

One Health, Ross, Farahmand, and Feeney.

Appellees contend that these allegations were sufficient to meet their pleading

burden to bring Feeney within the Texas long-arm statute. We agree. This Court has

long held that “a nonresident who travels to Texas and makes statements alleged to

1
The full email address is redacted for privacy, but for the purposes of this analysis, we note that the
email address includes Feeney’s name as the account holder and One Health’s name in the URL portion.
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be fraudulent is subject to specific jurisdiction in Texas.” Petrie v. Widby, 194

S.W.3d 168, 175 (Tex. App.—Dallas 2006, no pet.); accord Jani-King Franchising,

Inc. v. Falco Franchising, S.A., No. 05–15–00335–CV, 2016 WL 2609314, at *4

(Tex. App.—Dallas May 5, 2016, no pet.) (mem. op.), overruled on other grounds

by Saidara, 633 S.W.3d at 129. Here, appellees pleaded that in June 2018, Feeney

and the other individual defendants met with Morfin and falsely represented to him

that One Health had sufficient financial resources to complete the acquisition of

MedOne’s assets. That misrepresentation forms the basis of appellees’ fraudulent

inducement claim. Accordingly, appellees met their pleading burden by alleging that

Feeney “travel[ed] to Texas and ma[de] statements alleged to be fraudulent.” See

Petrie, 194 S.W.3d at 175.

Relying on this Court’s en banc decision in Saidara, Feeney argues that

appellees’ pleadings were insufficient because “there is no allegation in [appellees’]

petition that Feeney has done business in this state or that he made any representation

unique to that of the other Defendants.” In other words, Feeney’s position is that an

allegation that multiple defendants made a “collective” misrepresentation is

insufficient to support specific jurisdiction. We disagree.

Saidara involved claims for fraud and misappropriation of trade secrets

against a foreign defendant alleged to have committed those torts in Texas. See

Saidara, 633 S.W.3d at 123–24. However, those allegations were found in the

plaintiffs’ response to Saidara’s special appearance and not in the plaintiff’s petition.

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Id. at 126. Thus, the issue was whether allegations in a special-appearance response,

but not in the plaintiffs’ pleadings, are sufficient to meet the pleading burden in the

personal-jurisdiction analysis. See id. at 126–27. We concluded a plaintiff “must

meet its initial burden on a special appearance by pleading, in its petition, sufficient

allegations to invoke jurisdiction under the Texas long-arm statute.” Id. at 129

(emphasis in original). Reviewing the plaintiffs’ petition, we noted that it contained

factual allegations that Saidara visited Texas, and that Saidara committed torts, but

not that Saidara committed torts in Texas. See id. at 131.

Saidara does not stand for the proposition that Feeney attributes to it.

Nowhere in the opinion did this Court conclude that the same misrepresentation

alleged to have been made by multiple defendants cannot satisfy the pleading burden

as to one of the defendants in a personal-jurisdiction analysis. Rather, we searched

the plaintiffs’ live pleading to determine whether there was any allegation that

Saidara himself committed a tort in Texas. We found none:

The only allegations of conduct by Saidara in Texas are that he visited
Texas in connection with the sale, and he visited Texas on a site visit to
Southwest General’s facility with Summerset during which Summerset,
not Saidara, asked questions. There is no allegation in the petition that
Saidara made any misrepresentation during his visits to Texas. There is
no allegation in the petition that he was in Texas when he made the
misrepresentations in his electronic and telephonic communications.
Nor is there any allegation in the petition that Saidara made an in-
person misrepresentation during his visit to Texas. Finally, there is no
allegation that Saidara was in Texas when he downloaded all the data
in the clean room.

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Id. at 131 (internal citation omitted). In contrast, appellees here did allege that

Feeney made a fraudulent misrepresentation in Texas. That the petition also alleges

that the other individual defendants made the same fraudulent misrepresentation

does not undermine personal jurisdiction as to Feeney. See TV Azteca v. Ruiz, 490

S.W.3d 29, 52 (Tex. 2016) (each defendant’s contacts with the forum state “must be

assessed individually” in personal-jurisdiction analysis).

We conclude that appellees met their burden to plead sufficient jurisdictional

facts to support the trial court’s exercise of personal jurisdiction over Feeney.

2. Sufficiency of the Evidence

Feeney next argues that the evidence was legally and factually insufficient to

support the trial court’s exercise of personal jurisdiction over him. We disagree.

Once a plaintiff meets its burden to plead sufficient jurisdictional facts, the burden

shifts to the defendant to negate all bases of personal jurisdiction alleged by the

plaintiff. LG Chem, 670 S.W.3d at 346. One way to do this is to “present evidence

that contradicts the plaintiff’s factual allegations supporting the assertion of personal

jurisdiction.” Id.

Here, the only basis of personal jurisdiction alleged by appellees was that

Feeney traveled to Texas in June 2018 and made material misrepresentations

regarding One Health’s financial ability to purchase MedOne’s assets. We must

therefore consider whether Feeney’s evidence contradicts this factual allegation. At

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the time of the special-appearance hearing, the evidence before the trial court

included Feeney’s unsworn declaration, in which he testified as follows:

1. I am domiciled in Wisconsin and I am over the age of eighteen
(18) years and of sound mind. I am capable of making this
Declaration and I am fully competent to testify about the matters
stated in this Declaration. I have personal knowledge of each of
the facts stated and they are true and correct.

2. I have never lived in Texas.

3. I have not committed any torts in the State of Texas.

4. I do not own any real estate property in the State of Texas.

5. I do not own any bank accounts, telephone numbers, or post
office boxes in the State of Texas.

6. I have not entered into any contract with Plaintiffs and I have not
contractually consented to jurisdiction in Texas.

7. I am not a member or manager for any of the above-referenced
limited liability companies named as parties to this lawsuit.

8. I was never the Chief Executive Officer of Defendant One Health
Medical Systems, LLC (“One Health”). I never represented to
anyone that I was the Chief Executive Officer of Defendant One
Health. It is my understanding that David Ross held the position
of Chief Executive Officer. Roger Farahmand hired me as a
consultant through his law firm, Langford, Wise & Farahmand,
PLLC. I was not privy to nor did I have knowledge of or access
to the names and financial information of the entities created by
Roger Farahmand, including that of Defendant One Health.

9. I live in a rural community of Wisconsin on a large farm with my
two 13-year-old children. When I am not operating the farm, I
am dedicated to coaching both of my children’s athletic teams
and running their scout programs as well as their travel teams.
My time is dedicated to my work, children, and farm in
Wisconsin such that defending against this case in Texas would
be burdensome on me.

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In this testimony, Feeney did not expressly dispute that he traveled to Texas in June

2018 and made the statements attributed to him by appellees. The only statement in

the declaration that could be interpreted as an implied refutation of appellees’

allegation is Paragraph 3, in which Feeney testified that he had not “committed a tort

in Texas.” However, appellees objected to Paragraph 3, and the trial court sustained

the objection. Accordingly, Feeney failed to negate jurisdiction on a factual basis.

See Jani-King, 2016 WL 2609314, at *5 (nonresident defendants failed to negate

jurisdiction on a factual basis where trial court sustained plaintiffs’ objection to

defendants’ declaration testimony that defendants “did not commit a tort, in whole

or in part, in Texas”).

Because Feeney did not dispute the only factual allegation on which personal

jurisdiction was predicated, we need not consider the legal and factual sufficiency

of the evidence supporting that factual basis. See Saidara, 633 S.W.3d at 126

(“When the relevant facts in a case are undisputed, an appellate court need not

consider any implied findings of fact and considers only the legal question of

whether the undisputed facts establish Texas jurisdiction.”).

3. Summary

We conclude that appellees sufficiently pleaded facts supporting the trial

court’s exercise of personal jurisdiction over Feeney and that Feeney failed to negate

jurisdiction on a factual basis. We overrule Feeney’s first issue.

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B. Corporate Capacity and Contractual Avoidance

Feeney states his second issue as follows: “Whether sufficient minimal

contacts with Texas exist and were alleged against Feeney in his individual capacity

or otherwise to support the exercise of personal jurisdiction.” Feeney argues his

second issue in two parts: (1) that personal jurisdiction cannot be established where

appellees failed to assert that his contacts with Texas were made in his personal

capacity; and (2) that the terms of the APA limit appellees’ ability to tie their

fraudulent-inducement claim to his contacts with Texas. We consider each sub-part

in turn.

1. Corporate versus Individual Capacity

Feeney first complains that appellees “do not assert Feeney committed any

tort personally much less do they assert a single contact with Texas Feeney made

individually.” Feeney concludes that because appellees alleged only that Feeney

made the misrepresentations in his corporate capacity,2 the trial court could not

exercise personal jurisdiction over him in his individual capacity.

We disagree. “[A] corporate officer who knowingly participates in tortious or

fraudulent acts may be held individually liable to third persons even though he

performed the act as an agent of the corporation.” Walker v. Anderson, 232 S.W.3d

2
Appellees stated that “Mr. Feeney was the CEO of One Health and represented himself as such to
[Morfin].” Feeney disputed the factual allegation in his affidavit, testifying that he “never represented to
anyone that [he] was the Chief Executive Officer of Defendant One Health”; that he understood “David
Ross held the position of Chief Executive Officer”; and that he was hired as a consultant by Farahmand
through the latter’s law firm.
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899, 918 (Tex. App.—Dallas 2007, no pet.). Additionally, “a corporate employee is

not shielded from the exercise of specific jurisdiction as to torts for which the

employee may be held individually liable.” Spurgeon v. Empire Petroleum Partners,

LLC, No. 05-18-00783-CV, 2019 WL 2521722, at *3 (Tex. App.—Dallas June 19,

2019, no pet.) (mem. op.).

The cases on which Feeney relies to reach the opposite conclusion are

unavailing. For example, Feeney cites our decision in Kaye/Bassman for the

proposition that “[a]bsent pleading and proof that an officer’s conduct was solely for

the officer’s benefit and contrary to the interest of the business entity, an officer’s

‘acts on the corporation’s behalf are deemed corporate acts.’” Kaye/Bassman Intern.

Corp. v. Dhanuka, 418 S.W.3d 352, 359 (Tex. App.—Dallas 2013, no pet.) (quoting

ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 432 (Tex. 1997)). Feeney argues

that appellees’ pleadings lack the requisite jurisdictional facts because they failed to

plead that Feeney’s conduct was solely for his own benefit.

We reject this argument. Kaye/Bassman was a tortious-interference case, and

Feeney takes the quoted sentence out of the legal framework in which we said it:

Appellees argue that the tortious interference claims against them
cannot arise from or relate to any communications they had with O’Neil
after they became HDN directors. Appellees base this argument on
Texas law that an agent or officer of a business entity cannot be liable
for tortiously interfering with the business entity’s contract unless a
plaintiff proves that the agent or officer acted in a manner so contrary
to the entity’s best interests that his or her actions could only have been
motivated by personal interest when interfering with the business
entity’s contract. Absent pleading and proof that an officer’s conduct

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was solely for the officer’s benefit and contrary to the interest of the
business entity, an officer’s acts on the corporation’s behalf are
deemed corporate acts. Because appellant did not make such
allegations or present such proof, appellees contend any alleged
jurisdictional contacts in furtherance of tortious interference after the
April 2007 acquisition are subject to the fiduciary shield doctrine and
do not constitute contacts with Texas in their personal capacities.

Id. at 358–59 (emphasis added) (internal citations and quotation marks omitted).

Although the italicized portion of the foregoing quote is an accurate statement of the

law, it applies to claims for tortious interference, not fraudulent inducement.3 See

ACS Investors, 943 S.W.2d at 432. Kaye/Bassman is therefore inapposite.

The two other cases Feeney relies on for this issue are distinguishable on their

facts. See Kumar v. Hill, No. 01-06-00045-CV, 2007 WL 495512, at *5 (Tex.

App.—Houston [1st Dist.] Feb. 15, 2007, no pet.) (mem. op.); Furtek & Assocs.,

L.L.C. v. Maxus Healthcare Partners, LLC, No. 02-15-00309-CV, 2016 WL

1600850, at *5 (Tex. App.—Fort Worth Apr. 21, 2016, no pet.) (mem. op.). In

Kumar the First Court of Appeals held that allegations in a petition were insufficient

to invoke the trial court’s exercise of personal jurisdiction where the plaintiff’s

allegations of tortious conduct against the defendant were based on conspiracy or

agency principles. See Kumar, 2007 WL 495512, at *5. In contrast, appellees do not

contend that Feeney committed fraud in Texas through an agent or conspired with a

3
The italicized quote is an exception to the rule that a party cannot interfere with its own contracts.
Generally, a claim for tortious interference can be brought only against a stranger to a contract. Holloway
v. Skinner, 898 S.W.2d 793, 794 (Tex. 1995). A corporate officer is the conduit through which the
corporation acts. See id. at 795. Thus, a corporate officer cannot be held liable for interfering with the
corporation’s contracts, except when the officer is acting purely out of self-interest. See id. This is the point
being made by the language from Kaye/Bassman on which Feeney relies.
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Texas resident to commit fraud; they allege that Feeney traveled to Texas and

committed fraud himself.

In Furtek & Associates, the Second Court of Appeals considered the alleged

conduct of two defendants. Furtek & Assocs., 2016 WL 1600850, at *5. The first,

Furtek, was alleged to have made certain misrepresentations during a chance

meeting in Texas and in phone calls and emails made from outside Texas. The

second, Yanchik, was alleged to have travelled to Texas on three separate trips. The

court held that the phone calls and emails were insufficient to establish personal

jurisdiction because purposeful availment cannot depend on the “fortuitous location

of the Texas resident when the nonresident defendant communicates with them.” Id.

(citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 791 (Tex.

2005); and Bryan v. Gordon, 384 S.W.3d 908, 917 (Tex. App.—Houston [14th Dist.]

2012, no pet.)). The court further held that the meeting was insufficient to establish

personal jurisdiction because it happened coincidentally during Furtek’s trip to

Texas for a different purpose. See id. (citing Michiana, 168 S.W.3d at 785). As to

Yanchik, the court held that her trips to Texas were not related to the transaction out

of which the claims arose and therefore could be factors to consider for general, but

not specific, jurisdiction. See id. at *6. Here, however, appellees allege that Feeney

traveled to Texas, along (or to meet) with Morfin, to negotiate the sale of MedOne’s

assets to One Health, and that the misrepresentations about One Health’s ability to

complete the acquisition were made during the meeting. Thus, unlike Furtek and

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Yanchik, the alleged meeting in this case was not a fortuitous occurrence that Feeney

happened to attend while he was in Texas for some other purpose.

2. Contractual Avoidance

Feeney next argues that the choice-of-law and merger clauses of the APA

preclude personal jurisdiction in Texas. Appellees respond that Feeney waived this

argument because he did not raise it in the trial court. We agree with appellees.

To preserve a complaint for appeal, a party must show that it was raised in the

trial court “by a timely request, objection, or motion” stating the grounds for the

relief sought. See TEX. R. APP. P. 33.1(a)(1). Feeney did not raise this complaint in

the trial court and cannot raise it for the first time on appeal. See Shen v. Chen Zhao

Hua, No. 05-17-00280-CV, 2018 WL 1407099, at *3 (Tex. App.—Dallas Mar. 21,

2018, no pet.) (mem. op.) (issue related to personal jurisdiction waived where not

preserved in the trial court); Lombardo v. Bhattacharyya, 437 S.W.3d 658, 667 (Tex.

App.—Dallas 2014, pet. denied) (mem. op.) (same).

3. Summary

We conclude that appellees’ second amended petition alleged and provided

evidence that Feeney committed a tort in Texas and that, irrespective of whether he

did so in his corporate or personal capacity, it was sufficient to establish Feeney’s

minimum contacts with Texas. We further conclude that Feeney’s second argument

relating to the APA was not preserved for appeal.

We overrule Feeney’s second issue.

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C. Fiduciary-Shield Doctrine

In his third issue, Feeney asks us to consider “[w]hether the fiduciary shield

doctrine precludes personal jurisdiction over Feeney when the only contacts with

Texas alleged were in a corporate capacity.” Feeney argues that, to the extent he was

a principal of One Health, the fiduciary-shield doctrine precludes the trial court’s

exercise of personal jurisdiction over him. Appellees respond that the fiduciary-

shield doctrine does not apply where the defendant is alleged to have committed a

tort in the course of employment. We agree with appellees.

“A long-standing principle of Texas law is that ordinarily a corporate agent is

not personally liable in an action on a contract made by him for the benefit of his

corporate principal.” Stull v. LaPlant, 411 S.W.3d 129, 134 (Tex. App.—Dallas

2013, no pet.), overruled on other grounds by Saidara, 633 S.W.3d at 129. Thus, the

fiduciary-shield doctrine prevents a trial court from exercising personal jurisdiction

over an agent of a corporation whose sole contact with Texas results from transacting

the corporate principal’s business in the state. Id. at 134–35 (citing Stuart v.

Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985)). However, the corporate agent “can

be held liable for committing a tort or wrong while engaged in the business of the

corporate principal based on the agent’s personal acts.” Id. Thus, “one frequently

stated exception to the fiduciary shield doctrine is that it does not protect an officer

or employee of a business entity from liability for torts the individual is alleged to

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have committed while conducting the business of his employer because individuals

are liable for the torts they commit.” Id.

Here, appellees alleged that Feeney was a principal of One Health and

travelled to Texas where he fraudulently induced MedOne into the APA by

misrepresenting One Health’s ability to perform under that contract. Because

Feeney, personally, was “alleged to have committed a tort while conducting the

business of his employer,” we conclude that the fiduciary-shield doctrine does not

apply in this case.

We overrule Feeney’s third issue.

D. Due Process

In his fourth issue, Feeney contends that “[s]ufficient minimal contacts do not

exist and personal jurisdiction over Feeney does not comport with traditional notions

of fair play and substantial justice.” Regarding the minimum-contacts analysis,

Feeney argues that appellees’ allegation that Feeney misrepresented One Health’s

financial status is insufficient to meet the minimum-contacts test because:

(1) appellees “do not allege that Feeney was seeking any personal benefit, advantage

or profit through the contact”; (2) “the allegations of tortious contact by Feeney are

overly vague, conclusory, and in dispute”; and (3) “the single alleged contact is

attenuated and fortuitous.” We address each assertion in turn.

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1. Benefits

Feeney argues that the trial court lacked personal jurisdiction because

appellees failed to allege that “Feeney sought to personally ‘benefit, advantage, or

profit’ from the contact with Texas.” This argument is directed at the third factor in

the purposeful-availment inquiry. For a Texas court to exercise specific jurisdiction

over a nonresident defendant, (1) the defendant must purposefully avail itself of

doing business in Texas and (2) the defendant’s liability must arise out of or be

related to an activity it conducted within Texas. Moki Mac River Expeditions v.

Drugg, 221 S.W.3d 569, 576 (Tex. 2007). The test for establishing purposeful

availment has three factors:

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

Old Republic, 549 S.W.3d at 559 (quoting Moncrief Oil Intern. Inc. v. OAO

Gazprom, 414 S.W.3d 142, 151 (Tex. 2013)). The benefit factor “is premised on

implied consent: a nonresident consents to suit by invoking the benefits and

protections of a forum’s laws.” Moncrief Oil, 414 S.W.3d at 154.

Appellees argue that the allegations in their second amended petition are

sufficient to show that Feeney benefited from his contacts with Texas. We agree.

Appellees alleged that Feeney traveled to Texas in June 2018 to negotiate the

purchase of MedOne’s assets by One Health, which was headquartered in Dallas.

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During one of those meetings, Feeney allegedly made a misrepresentation as to One

Health’s financial capabilities that induced MedOne to enter into the APA.

Appellees further alleged that once the APA was signed, the defendants “managed

the assets, all of which were medical companies located in Dallas-Fort Worth[.]”

With respect to Feeney, appellees alleged that he “actively managed One Health’s

assets, and was frequently in Dallas to do so.” Although Feeney did testify in his

declaration that he was a consultant and not One Health’s CEO, he did not dispute

these allegations. The trial court could have reasonably concluded that Feeney was

compensated for his work on behalf of One Health.

We conclude that appellees sufficiently alleged that Feeney benefited from

his contacts with Texas and overrule the first assertion under Feeney’s fourth issue.

2. Procedural and Evidentiary Defects

Feeney next advances a series of arguments related to defects in the

jurisdictional allegations and supporting evidence.

First, Feeney argues that appellees’ allegation of tortious conduct by Feeney,

and the evidence supporting it, was conclusory. We disagree. A conclusory

statement is one that “does not provide the underlying facts to support the

conclusion” and is thus is not “susceptible to being readily controverted.” Eberstein

v. Hunter, 260 S.W.3d 626, 630 (Tex. App.—Dallas 2008, no pet.). Here, appellees

alleged (and supported their allegations with Morfin’s unsworn declaration) that

Feeney traveled to Texas in June 2018, met with Morfin to negotiate the APA, and

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made a specific misrepresentation regarding One Health’s financial capability to

perform under the APA. These allegations are factual and could have been readily

controverted by Feeney. They are therefore not conclusory.

Feeney next argues that Morfin’s declaration cannot support specific

jurisdiction because, although Morfin testified that Feeney made a false statement,

he did not testify that the statement was material or that MedOne relied on it and was

injured as a result, which are essential elements of a claim for fraudulent inducement.

We reject this argument. The personal-jurisdiction analysis requires courts to

consider, where appropriate, the evidence of the foreign defendant’s contacts with

the forum state, not the merits of the claim against the defendant. See Michiana, 168

S.W.3d 777, 790. As the supreme court observed in Michiana:

Business contacts are generally a matter of physical fact, while tort
liability (especially in misrepresentation cases) turns on what the
parties thought, said, or intended. Far better that judges should limit
their jurisdictional decisions to the former rather than involving
themselves in trying the latter.

Id. Here, the factual allegations and the evidence supporting them were sufficient

to show that Feeney had the requisite minimum contacts with Texas; appellees were

not required to also provide evidence of each element of their fraudulent-inducement

claim.

Feeney further argues that the allegations in appellees’ pleadings were

inconsistent with their evidence. Specifically, Feeney claims that appellees “alleged

all Defendants made the exact same representation, but [Morfin’s declaration]

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alleged that same representation was only made by Feeney.” We disagree. Morfin’s

declaration did not state that the representation as to One Health’s financial ability

to perform under the APA was made “only” by Feeney. Rather, Morfin’s

Declaration, attached to appellees’ response to Feeney’s special appearance, stated:

During several meetings with Mr. Feeney and Mr. Ross in June 2018
in Texas, Mr. Feeney told me that One Health had sufficient finances
to complete an acquisition of MedOne’s assets. Specifically, Mr.
Feeney affirmed that the One Health financial statements provided to
me were accurate and that One Health had approximately $4 million in
EBITDA. Those statements were false.

Appellees presented evidence in support of the jurisdictional challenge by Feeney.

While the declaration may be silent as to statements made by the other defendants,

it is not contrary to or different from the jurisdictional allegations in the petition.

We overrule Feeney’s arguments related to defects in the jurisdictional

allegations and supporting evidence.

3. Attenuated and Fortuitous Contacts

Feeney claims that his single alleged contact with Texas was too attenuated

and fortuitous to support the trial court’s exercise of personal jurisdiction. Feeney’s

brief contains this statement only in the introductory paragraph of his fourth issue.

There are no arguments, record citations, or citations to relevant authority in support

of this claim. Cf. TEX. R. APP. P. 38.1(i) (“The [appellant’s] brief must contain a

clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.”). We therefore decline to address this argument due

to briefing waiver.
–24–
4. Fair Play and Substantial Justice

Finally, Feeney argues that the trial court’s exercise of personal jurisdiction

over him offends traditional notions of fair play and substantial justice.

“In addition to minimum contacts, due process requires the exercise of

personal jurisdiction to comply with traditional notions of fair play and substantial

justice.” Moncrief Oil, 414 S.W.3d at 154. “If a nonresident has minimum contacts

with the forum, rarely will the exercise of jurisdiction over the nonresident not

comport with traditional notions of fair play and substantial justice. Id. at 154–55.

In this analysis, we consider the following factors: (1) the defendant’s burden; (2) the

forum state’s interests in adjudicating the dispute; (3) the plaintiff’s interest in

securing convenient and effective relief; (4) the interstate judicial system’s interest

in obtaining the most efficient resolution of disputes; and (5) the shared interest of

the states in furthering fundamental substantive social policies. Guardian Royal

Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991).

Regarding the first factor, the occasional trips Feeney would have to travel for

this litigation are not overly burdensome. Moncrief Oil, 414 S.W.3d at 155. As the

supreme court has explained, “[d]istance alone cannot ordinarily defeat jurisdiction”

because “modern transportation and communication have made it much less

burdensome for a party sued to defend himself in a State where he engages in

economic activity.” Id. (quoting Spir Star AG v. Kimich, 310 S.W.3d 868, 879 (Tex.

2010)). As to the second factor, Texas “has an especial interest in exercising judicial

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jurisdiction over those who commit torts within its territory.” TV Azteca, 490 S.W.3d

at 56 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984)).

Regarding the third and fourth factors, appellees’ ability to secure convenient and

effective relief and the interstate judicial system’s efficiency would both be hindered

by being forced to maintain one suit in Texas and another suit, arising from the same

operative facts, in Wisconsin. See Kelly Inv., Inc. v. Basic Capital Mgmt., Inc., 85

S.W.3d 371, 376 (Tex. App.—Dallas 2002, no pet.) (case involving multiple

defendants would be “most efficiently resolved in a single forum”). Finally, the

shared interests of Texas and Wisconsin in furthering substantive social policy are

best served by Texas’s exercise of jurisdiction over Feeney because the operative

facts giving rise to appellees’ fraudulent-inducement claims occurred in Texas. See

id. at 377 (“To permit an out-of-state entity to acquire promissory notes that are the

subject of known, pending litigation in a state court without subjecting itself to the

exercise of specific jurisdiction of the forum state with respect to that litigation

would invite parties to make such transfers as a shield to avoid the efficacy of the

pending litigation.”).

We conclude that all five factors weigh in favor of the trial court’s exercise of

personal jurisdiction over Feeney.

–26–
5. Summary

We conclude that appellees sufficiently alleged that Feeney had minimal

contacts with Texas and the trial court’s exercise of jurisdiction over him does not

offend traditional notions of fair play and substantial justice.

We overrule Feeney’s fourth issue.

CONCLUSION

We affirm the trial court’s order denying Feeney’s special appearance.

/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
221375F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOHN FEENEY, Appellant On Appeal from the 162nd Judicial
District Court, Dallas County, Texas
No. 05-22-01375-CV V. Trial Court Cause No. DC-22-07016.
Opinion delivered by Justice
MORFIN CAPITAL GROUP LLC Goldstein. Justices Garcia and Miskel
AND MEDONE TEXAS MSO, participating.
LLC, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellees MORFIN CAPITAL GROUP LLC AND
MEDONE TEXAS MSO, LLC recover their costs of this appeal from appellant
JOHN FEENEY.

Judgment entered this 20th day of August 2024.

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