Court of Appeals of Texas, Fifth District, Dallas
ROBERT B. SPURGEON, SR., Appellant
EMPIRE PETROLEUM PARTNERS, LLC, Appellee
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-07687
Justices Myers, Osborne, and Nowell
A. NOWELL JUSTICE
Robert Bruce Spurgeon, Sr. appeals the trial court's
order denying his special appearance. See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(7) (appeal from
interlocutory order denying special appearance). Spurgeon
argues the trial court erred by denying his special
appearance because the fiduciary shield doctrine prevents
attribution of his contacts with Texas that resulted solely
from transacting his company's business in Texas, and
appellee Empire Petroleum Partners, LLC (Empire) failed to
establish an exception to the doctrine. We affirm the trial
owns and operates convenience stores. Empire employed Robert
Spurgeon, II (Rob) as its Director of Food Service Programs
and Merchandise. In that capacity, Rob was responsible for
purchasing printed materials such as signs, banners, name
tags, and coupon books, as well as disposable goods such as
beverage containers. Rob sourced many of these materials from
Innovations in Print, Inc. (Innovations),  a Florida
is wholly owned and operated by Spurgeon and his wife.
Spurgeon, a resident of Florida, is Rob's father.
Spurgeon made six business trips to Texas between January
2016 and February 2017 on behalf of Innovations as part of
its work with Empire. During these trips, Spurgeon and Rob
discussed marketing materials Empire needed, and Spurgeon
visited some of Empire's stores. On behalf of
Innovations, Spurgeon rented warehouse space in The Colony
and Fort Worth to store items his company sold to Empire;
Spurgeon personally guaranteed the leases. During 2016 and
2017, Empire was Innovations's only customer outside of
Hess was an administrative assistant for Empire, and she
worked with Rob almost daily. Hess knew Rob purchased
materials from Innovations and she spoke to "Bruce with
Innovations in Print" on the phone. However,
"Bruce" never used his last name and Rob did not
tell Hess that his father owned and operated Innovations.
After Empire terminated Rob, Hess continued having frequent
contact with "Bruce." She learned "Bruce"
was Rob's father in April 2017. Likewise, Jeffrey
Goodwin, Empire's Chief Operating Officer and Rob's
former boss, did not know Rob purchased materials from his
father's company until after Empire terminated Rob's
employment. Had Goodwin known Rob's father owned
Innovations, he would have terminated Rob's employment
alleges that after terminating Rob's employment in
November 2016, Empire discovered Rob's father owns and
operates Innovations and Rob purchased printed materials and
disposable goods from Innovations at inflated prices. Empire
sued Spurgeon for fraud and conspiracy. It alleges that by
purchasing goods from his father's company at inflated
prices, Rob committed common-law actual or constructive fraud
and Spurgeon knowingly participated in and reaped the
benefits of that fraud. Additionally, Empire alleges Rob owed
a fiduciary duty to Empire, his employer; Spurgeon knew Rob
owed that duty; the men engaged in a conspiracy to breach
Rob's fiduciary duty to Empire; and they "committed
unlawful, overt acts in furtherance of the conspiracy"
by concealing their relationship and pricing the goods sold
to Empire above the prices at which goods of a like grade and
quality could have been obtained through competitive
first amended petition asserts Spurgeon did business in Texas
as that term is defined in section 17.042 of the civil
practice and remedies code. Spurgeon filed a special
appearance, which the trial court denied. This interlocutory
courts have personal jurisdiction over a defendant when two
criteria are satisfied: (1) the Texas long arm statute grants
jurisdiction; and (2) the exercise of jurisdiction comports
with federal and state constitutional guarantees of due
process. Searcy v. Parex Res., Inc., 496 S.W.3d 58,
66 (Tex. 2016). The Texas long arm statute lists activities
that constitute doing business in Texas, including committing
a tort in whole or in part in the state. See Tex.
Civ. Prac. & Rem. Code Ann. § 17.042(2).
defendant's contacts with a forum may give rise to either
general or specific jurisdiction. KC Smash 01, LLC v.
Gerdes, Hendrichson, Ltd., L.L.P., 384 S.W.3d 389, 392
(Tex. App.-Dallas 2012, no pet.); Nevada Nat'l
Advert., Inc. v. Silverleaf Resorts, Inc., No.
05-16-00694-CV, 2017 WL 655949, at *2 (Tex. App.-Dallas Feb.
17, 2017, no pet.) (mem. op.). Empire does not argue general
jurisdiction is available in this case; Empire only argues
Spurgeon's contacts with Texas give rise to specific
jurisdiction. Specific jurisdiction exists when the
plaintiff's claims "arise out of" or are
"related to" the defendant's contacts with the
forum. Nevada Nat'l Advert., Inc., 2017 WL
655949, at *2.
plaintiff bears the initial burden of pleading allegations to
permit a court's exercise of personal jurisdiction over
the nonresident defendant. Id. (citing
Searcy, 496 S.W.3d at 66). Alleging the defendant
committed torts in Texas satisfies the plaintiff's
initial burden. See Lombardo v. Bhattacharyya, 437
S.W.3d 658, 679 (Tex. App.-Dallas 2014, pet. denied) (citing
Tex. Civ. Prac. & Rem. Code Ann. § 17.042). Once the
plaintiff meets this burden, the defendant assumes the burden
of negating all potential bases for personal jurisdiction
that exist in the plaintiff's pleadings. Searcy,
496 S.W.3d at 66. The defendant can negate jurisdiction on
either a factual or legal basis. See, e.g., Kelly v. Gen.
Interior Constr., Inc., 301 S.W.3d 653, 659 (Tex. 2010);
Nevada Nat'l Advert., Inc., 2017 WL 655949, at
*2. A defendant negates jurisdiction on a factual basis by
presenting evidence to disprove the plaintiff's
jurisdictional allegations. See Kelly, 301 S.W.3d at
659. A defendant negates jurisdiction on a legal basis by
showing that "even if the plaintiff's alleged facts
are true, the evidence is legally insufficient to ...