AFFIRMED and Opinion Filed October 11, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-01116-CV 

SQUARE 9 SOFTWORKS INC., Appellant 

V. 

SIPS CONSULTS CORP., Appellee 

On Appeal from the 101st Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-19-09337 

MEMORANDUM OPINION 

Before Justices Osborne, Pedersen, III, and Reichek 

Opinion by Justice Reichek 

 Square 9 Softworks Inc. brings this interlocutory appeal challenging the trial 

court’s order denying both its special appearance and its motion to compel 

arbitration. We affirm the trial court’s order. 

 SIPS Consults Corp. filed a third-party petition alleging claims against 

Square 9 and others arising out of two contracts for software installation and training 

services to be performed by Square 9. In response, Square 9 filed an unverified 

special appearance and motion to compel arbitration. As support for the special 

appearance and motion to compel, Square 9 attached a sworn declaration signed by 

Square 9’s senior vice president, Michael Frattini, copies of Square 9’s contracts 
 –2– 

with SIPS, and an unsigned “Professional Services Management Agreement” 

containing an arbitration provision. SIPS filed objections to Frattini’s declaration 

and the PSMA contending the declaration was irrelevant and conclusory and the 

PSMA was hearsay and lacked both authenticity and relevance. Square 9 later filed 

an unsworn declaration by Frattini in which he stated only that a man SIPS alleged 

to be an agent of Square 9 had “never been an employee or authorized agent” of 

Square 9. 

Following a hearing, the trial court signed an order granting SIPS’s 

evidentiary objections and struck Frattini’s sworn declaration and the PSMA from 

the record. The court additionally denied Square 9’s special appearance and its 

motion to compel arbitration. Square 9 then brought this appeal. 

In its first issue, Square 9 contends the trial court erred in denying its special 

appearance because SIPS failed to plead sufficient jurisdictional facts and “Square 

9 could, and did, meet its burden to negate all bases of jurisdiction by proving that 

it does not reside in Texas.” It is well settled that, absent sufficient jurisdictional 

allegations, a defendant may defeat jurisdiction simply by proving it is not a Texas 

resident. See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010); 

Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 634 (Tex. App.—Dallas 

1993, writ denied) (without jurisdictional allegations by plaintiff, defendant can 

negate jurisdiction by presenting evidence it is non-resident). The defendant can 

meet this burden by filing an affidavit testifying to its non-residency. See Touradji 
 –3– 

v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 25 (Tex. App.—Houston [1st Dist.] 

2020, no pet.) (citing Kelly, 301 S.W.3d at 659). In this case, however, even if we 

assume SIPS failed to plead sufficient jurisdictional facts, the only evidence 

submitted by Square 9 to prove it was not a Texas resident, and the only evidence it 

points to on appeal, is the sworn declaration signed by Frattini that was struck in its 

entirety from the record by the trial court. 

Square 9 does not challenge the trial court’s striking of the sworn declaration. 

Accordingly, we cannot consider the declaration as part of the evidence to be 

considered on appeal. See Walker v. Schion, 420 S.W.3d 454, 457-58 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (evidentiary ruling must be challenged even in 

de novo review); Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 378 

(Tex. App.—Dallas 2011, no pet.); Phillips v. Am. Elastomer Prods., L.L.C., 316 

S.W.3d 181, 190 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Neither does 

Square 9 provide any argument to show how it could have met its burden to prove 

non-residency without the evidence that was struck. Because Square 9 has failed to 

show how it met its burden of proof, we cannot conclude the trial court erred in 

denying Square 9’s special appearance. We resolve Square 9’s first issue against it. 

Square 9’s second issue is similarly burdened by a lack of evidence. Square 

9 contends the trial court abused its discretion by denying its motion to compel 

arbitration. The arbitration provision Square 9 relies upon was contained in the 

unsigned PSMA submitted as an exhibit to its motion to compel. Square 9 argues 
 –4– 

that SIPS agreed to the terms of the PSMA because the document was included as a 

hyperlink in the signed contracts between the parties. SIPS objected to the PSMA 

submitted as evidence by Square 9, contending there was no showing the document 

accurately reflected the terms of the PSMA on the dates SIPS and Square 9 entered 

into the software installation agreements. The PSMA was subsequently struck by 

the trial court and Square 9 does not challenge that ruling on appeal. 

Because the trial court struck the PSMA, there is no evidence in the record 

that the contracts signed by SIPS incorporated an arbitration provision or the scope 

of any such provision. Because there is no evidence SIPS agreed to arbitrate its 

claims against Square 9, the trial court did not err in denying Square 9’s motion to 

compel. See In re Sthran, 327 S.W.3d 839, 843 (Tex. App.—Dallas 2010, orig. 

proceeding) (party seeking to compel arbitration has initial burden to establish 

arbitration agreement’s existence). We resolve Square 9’s second issue against it. 

We affirm the trial court’s order. 

201116f.p05 

 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
 –5– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

SQUARE 9 SOFTWORKS INC., 

Appellant 

No. 05-20-01116-CV V. 

SIPS CONSULTS CORP., Appellee 

 On Appeal from the 101st Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-19-09337. 

Opinion delivered by Justice 

Reichek. Justices Osborne and 

Pedersen, III participating. 

 In accordance with this Court’s opinion of this date, the December 9, 2020 

order of the trial court denying the special appearance and motion to compel 

arbitration of SQUARE 9 SOFTWORKS INC. is AFFIRMED. 

 It is ORDERED that appellee SIPS CONSULTS CORP. recover its costs of 

this appeal from appellant SQUARE 9 SOFTWORKS INC. 

Judgment entered October 11, 2021