CONCUR and DISSENT; Opinion Filed November 8, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-01551-CV 

WARREN CHEN AND DYNACOLOR, INC., Appellants 

V. 

RAZBERI TECHNOLOGIES, INC., THOMAS J. GALVIN, LIVEOAK 

VENTURE PARTNERS I, L.P., LIVEOAK VENTURES PARTNERS 1A, 

L.P., KENNETH L. AND VIRGINIA T. BOYDA, AS TRUSTEES OF THE 

BOYDA FAMILY REVOCABLE TRUST DATED 10/12/1990, AND JIRI 

AND ROSEMARY MODRY, AS TRUSTEES OF THE JRAM TRUST UDT, 

Appellees 

On Appeal from the 193rd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-18-16568 

CONCURRING AND DISSENTING OPINION ON REMAND 

Before Justices Schenck, Smith, and Garcia 

Opinion by Justice Schenck 

I concur with the majority’s decision to affirm the trial court’s order denying 

appellants’ special appearances as to Count VII with respect to appellant Warren 

Chen and reverse and render an order granting appellants’ special appearances as to 

Count II. I dissent from the remainder of the judgment. I also write to provide 

guidance to the trial court on remand and to explain why, in my view, remanding the 
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case to the trial court to conform the judgment according to and consistent with the 

opinion cannot be understood to reinstate the trial court’s final judgment. 

BACKGROUND

I have no complaint with the background set forth in the majority opinion, but 

I will set out the facts and procedural history necessary to explain where I disagree 

with the majority. 

The underlying lawsuit involved, among other things, claims for fraud and 

breach of fiduciary duty regarding the purchase of certain stock. Appellants filed a 

special appearance. 

The petition contained the following jurisdictional allegations. 

Appellees Razberi Technologies, Inc., Thomas J. Galvin, LiveOak Venture 

Partners I, L.P., LiveOak Ventures Partners 1A, L.P., Kenneth L. and Virginia T. 

Boyda, as Trustees of the Boyda Family Revocable Trust Dated 10/12/1990, and Jiri 

and Rosemary Modry, as Trustees of the JRAM Trust UDT 8/21/1996, brought suit 

against appellants Chen and DynaColor alleging fraud, fraudulent inducement, and 

breach of fiduciary duty in relation to a stock purchase agreement between Razberi, 

of which Galvin was president, and the remaining appellees.1

 Appellees further 

alleged that DynaColor was a non-resident corporation that had conducted business 

in Texas, Chen was a Taiwanese national who resided in Taiwan and had conducted 

1

 Appellees also brought suit against Avigilon Corporation and Avigilon USA Corporation, which are 

not parties to this appeal. 
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business in Texas, and this lawsuit arose out of, and is related to, DynaColor and 

Chen’s activities in Texas. 

The appellees also alleged that Razberi’s principal place of business was in 

Dallas County; Razberi was “formed as the joint-venture vehicle between Galvin 

and DynaColor”; DynaColor was its majority shareholder; Chen was the CEO of 

DynaColor and one of two of Razberi’s directors; DynaColor sold components of 

network video recorder (NVR) systems to Razberi to use in manufacturing and 

selling the Razberi systems; Razberi sold systems to Avigilon; and DynaColor 

guaranteed certain aspects of Razberi’s contract with Avigilon. When Chen 

informed Galvin that DynaColor would no longer be investing in Razberi, Razberi 

sought investors elsewhere. The business relationship between Razberi and 

Avigilon was critical to the investors’ decision to invest in Razberi through a Stock 

Purchase Agreement. Ultimately, the investors (the LiveOak entities, the Boydas, 

and the Modrys) contributed approximately $3,500,000 to Razberi. 

DynaColor and Chen were not parties to the Stock Purchase Agreement. 

However, in connection with the Stock Purchase Agreement, Razberi and 

DynaColor entered into a Purchase Agreement under which Razberi would continue 

to order parts from DynaColor and DynaColor would provide product repair services 

to Razberi. Razberi also agreed to immediately pay certain amounts due to 

DynaColor from the invested funds. 
 –4– 

Avigilon subsequently reduced its order forecast and then completely stopped 

ordering from Razberi and instead began ordering from DynaColor directly. 

Generally, appellees allege that appellants secretly decided to cut Razberi out by 

moving forward with a plan for DynaColor to usurp Razberi’s corporate 

opportunities to wrongfully compete against Razberi despite Chen’s fiduciary duties 

to Razberi and its shareholders and that appellants failed to disclose such information 

during the stock purchase negotiations. 

The trial court denied appellants’ special appearances, and on December 10, 

2019, appellants filed an accelerated notice of appeal challenging the trial court’s 

denial of the special appearances. Two weeks later, appellants filed a motion to stay 

the trial court’s proceedings. On January 14, 2020, appellants filed their opening 

brief in their interlocutory appeal. 

While appellants’ motion to stay remained pending before this Court, 

appellees subsequently filed motions for summary judgment, which the trial court 

granted on February 19, 2020. On March 12, 2020, a motions panel of this Court 

denied appellants’ motion to stay. On June 30, 2020, the trial court signed a 

final judgment in appellees’ favor. The final judgment stated, “The Court previously 

disposed of certain issues and claims in the above-referenced February 19, 2020 

Order, the June 18, 2020 Order, and two nonsuit orders signed on April 23, 2020. 

These orders and all other orders of the Court in this case are incorporated herein.” 
 –5– 

Appellants did not file a second notice of appeal following that judgment to 

reassert its claim that the trial court lacked jurisdiction, and appellees moved to 

dismiss this appeal as moot. The merits panel assigned to hear the appeal initially 

granted that motion. After consideration of appellants’ motion for rehearing, we 

granted rehearing and withdrew our earlier opinion dismissing appellants’ 

interlocutory appeal. Appellees then sought further rehearing to reinstate dismissal 

of the appeal. The Court, with a dissent, granted the appellees’ motion for rehearing, 

withdrew the order granting appellants’ motion for rehearing, and reinstated the 

Court’s earlier opinion dismissing appellants’ appeal as moot because they failed to 

file a separate notice of appeal from the final judgment. 

Appellants filed a petition for review with the Texas Supreme Court. The 

Texas Supreme Court held we were obligated to treat the previously perfected appeal 

as an appeal from the final judgment, but only as to the issues raised in the existing 

appeal. See Chen v. Razberi Techs., Inc., 645 S.W.3d 773, 775 (Tex. 2022). The 

court then reversed and remanded the case to our Court “for disposition of the special 

appearance on the merits.” 
 –6– 

DISCUSSION

I. The Trial Court Lacked Personal Jurisdiction over Defendants Where 

the Alleged Forum Contacts Pertain to Inaction and Where the Actor 

Had No Duty to Act 

Personal Jurisdiction 

Texas courts may exercise personal jurisdiction over a nonresident defendant 

only if (1) the Texas long-arm statute permits the exercise of jurisdiction and (2) the 

assertion of jurisdiction satisfies constitutional due-process guarantees. Kelly v. 

Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex. 2010). The long-arm statute 

provides, in relevant part, that in addition to other acts that may constitute doing 

business, a nonresident does business in this state if the nonresident commits a tort, 

in whole or in part, in this state. TEX. CIV. PRAC. & REM. CODE ANN. § 17.042. 

Personal jurisdiction over a nonresident defendant satisfies constitutional dueprocess guarantees 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. Kelly, 301 S.W.3d at 658. 

Minimum contacts are established when the nonresident defendant 

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

state, thus invoking the benefits and protections of its laws. Id. at 657–58. In 

determining purposeful availment, we consider (1) the defendant’s own actions but 

not the unilateral activity of another party, (2) whether the defendant’s actions were 

purposeful rather than random, isolated, or fortuitous, and (3) whether the defendant 
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sought some benefit, advantage, or profit by availing itself of the privilege of doing 

business in Texas. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 

785 (Tex. 2005). The focus is the relationship among the defendant, the forum, and 

the litigation. Id. at 790 (quoting Helicopteros Nacionales de Colombia, S.A. v. 

Hall, 466 U.S. 408, 414 (1984)). In this analysis, we do not assess the quantity of 

the contacts, but rather their nature and quality. Moncrief Oil Int’l, Inc. v. OAO 

Gazprom, 414 S.W.3d 142, 151 (Tex. 2013). 

A defendant’s contacts with a forum can give rise to either specific or general 

jurisdiction. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 

338 (Tex. 2009). A court has general jurisdiction over a nonresident defendant 

whose affiliations with the State are so continuous and systematic as to render it 

essentially at home in the forum State. See TV Azteca v. Ruiz, 490 S.W.3d 29, 37 

(Tex. 2016) (citing Daimler v. Bauman, 571 U.S. 117, 127 (2014)). By contrast, 

courts may exercise specific jurisdiction when the defendant’s alleged liability arises 

from or is related to its activities conducted within the forum. Moki Mac River 

Expeditions v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007); accord Bristol-Myers 

Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1780 (2017). The “arises 

from or relates to” requirement lies at the heart of specific jurisdiction by defining 

the required nexus between the nonresident defendant, the litigation, and the forum 

state. Moki Mac, 221 S.W.3d at 579. In order for a nonresident defendant’s contacts 

in a forum state to support an exercise of specific jurisdiction, there must be a 
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substantial connection between those contacts and the operative facts of the 

litigation. Id. at 585; accord Walden v. Fiore, 571 U.S. 277, 284 (2014). The 

operative facts of the litigation are those facts the trial court will focus on to prove 

the nonresident defendant’s liability. See Jani-King Franchising, Inc. v. Falco 

Franchising, S.A., No. 05-15-00335-CV, 2016 WL 2609314, at *5 (Tex. App.—

Dallas May 5, 2016, no pet.) (mem. op.), overruled on other grounds by Steward 

Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 129 (Tex. App.—Dallas 2021, 

no pet.); see also Saidara, 633 S.W.3d at 126. 

For specific jurisdiction, we analyze the defendant’s contacts on a claim-byclaim basis to determine whether each claim arises out of or is related to the 

defendant’s forum contacts. See TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016). 

But, when all the claims arise from the same forum contacts, a claim-by-claim 

analysis is not required. See Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 

1, 18 (Tex. 2021). 

Because the minimum-contacts test is intended to ensure that the defendant 

could reasonably anticipate being sued in the forum’s courts, foreseeability is an 

important consideration in the analysis. TV Azteca, 490 S.W.3d at 46 (citing World–

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); BMC Software 

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). But 

foreseeability alone will not support personal jurisdiction. Id. Instead, the defendant 

must reasonably anticipate being sued in the forum because of actions the defendant 
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“purposefully directed toward the forum state.” Id. (quoting Asahi Metal Indus. Co. 

v. Superior Court of Cal., 480 U.S. 102, 112 (1987) (plurality opinion)). The simple 

knowledge that the defendant is dealing with a person in Texas or that his alleged 

misconduct or inaction elsewhere might have an effect here will not establish the 

requisite minimum contacts. See Old Republic Nat'l Title Ins. Co. v. Bell, 549 

S.W.3d 550, 565 (Tex. 2018). Rather, the defendant must seek some benefit, 

advantage, or profit by itself of the jurisdiction. See id. at 559 (citing Moncrief Oil, 

414 S.W.3d at 151). 

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

jurisdiction to comply with traditional notions of fair play and substantial justice. 

See Moncrief Oil, 414 S.W.3d at 154. We undertake this evaluation in light of the 

following factors, when appropriate: (1) the burden on the defendant; (2) the 

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

obtaining convenient and effective relief; (4) the international judicial system’s 

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

interest of the several nations in furthering fundamental substantive social policies. 

Id. at 155 (citing Asahi, 480 U.S. at 113; Spir Star AG v. Kimich, 310 S.W.3d 868, 

878 (Tex. 2010). 

Causes of Action 

(1) Count I (Fraud and Fraudulent Inducement): the investors alleged that 

appellants committed fraud by making material misrepresentations and 

omissions that they knew were false, or that they recklessly made as 

positive assertions without any knowledge of their truth, and fraudulently 
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induced the investors to enter into the Stock Purchase Agreement and 

related agreements by making such misrepresentations and omissions. 

(2) Count II (Fraud by Nondisclosure): the investors alleged that appellants 

concealed from, or failed to disclose to, the investors that DynaColor 

planned to, and did, usurp the opportunity to sell the NVR systems to 

Avigilon in competition with Razberi. 

(3) Count III (Statutory Fraud under TEX. BUS. & COM. CODE ANN. § 27.01): 

the investors alleged that appellants made a false representation to them 

for the purpose of inducing them to enter into the Stock Purchase 

Agreement and that they relied upon the false representation in entering 

into the agreement. 

(4) Count IV (Violation of Texas Securities Act): the investors alleged that 

Razberi offered or sold securities to the investors by means of an untrue 

statement of a material fact or omission; that Chen, as Razberi’s director, 

knew the untruth or omission; that his knowledge may be imputed to 

Razberi; that appellants directly or indirectly controlled Razberi and 

knew of the untruth or omission; and that appellants, with intent to 

deceive the investors, materially aided Razberi in its actions. 

(5) Count V (Negligent Misrepresentation): in the alternative, the investors 

and Galvin alleged that appellants negligently made material 

misrepresentations and omissions and intended for the investors and 

Galvin to rely upon their misrepresentations and omissions by investing 

in Razberi. 

(6) Count VI (Breach of Fiduciary Duty): Galvin alleged that Chen owed 

him a fiduciary duty as a shareholder of Razberi because Chen was a 

director of Razberi and that Chen breached his fiduciary duties of candor, 

loyalty, and honesty. Galvin also alleged that DynaColor owed him a 

fiduciary duty because it was the majority shareholder of Razberi and 

DynaColor also breached its fiduciary duties of candor, loyalty, and 

honesty to Galvin. Razberi alleged that, as director, Chen breached his 

fiduciary duties of candor, loyalty, and honesty to Razberi. 

(7) Count VII (Breach of Fiduciary Duty): the investors alleged that Chen 

owed a fiduciary duty to them because he was a director and they were 

shareholders of Razberi and that he breached his fiduciary duties of 

candor, loyalty, and care by usurping and diverting to DynaColor 

corporate opportunities that belonged to Razberi. Chen further breached 
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his duties through dishonesty and deception regarding his and 

DynaColor’s acts and plans with respect to Avigilon. 

Application of Law to Facts 

With respect to Count VII, I concur with the majority that exercise of personal 

jurisdiction comports with traditional notions of substantial justice and fair play 

where Chen, as a director, owed a fiduciary duty to the corporation in 

his directorial actions, and this duty “includes the dedication of [his] uncorrupted 

business judgment for the sole benefit of the corporation.” See Ritchie v. Rupe, 443 

S.W.3d 856, 868 (Tex. 2014). Similarly, Chen would owe that duty to the investors.2

 

I will concede that even this is a close and difficult question given that the 

only connection Chen appears to have with this forum State is through an agent. But 

given Chen’s status as a foreign national serving as an officer of a business selling 

products to other businesses in this country, I believe that he should have anticipated 

the prospect of being haled into a state within the United States if we credit the 

plaintiffs’ theories as we should.3

 As the company he served as a director had its 

principal place of business in Texas, I believe he should have anticipated any claim 

2

 Of course, not all of the investors are Texas residents, so it would seem to be a close question as to 

specific jurisdiction with regards to the claims of the non-Texas resident investors. Additionally, there may 

be capacity questions, i.e., are the investors proceeding as individuals or bringing a derivative claim. 

3

 As the supreme court has repeatedly held, the “effects test” is not an alternative to the traditional 

“minimum contacts” analysis, and it does not displace the factors reviewing courts look to in determining 

whether a defendant purposefully availed itself of the state. See Old Republic Nat'l Title Ins. Co. v. Bell, 

549 S.W.3d 550, 565 (Tex. 2018) (citing Moncrief Oil, 414 S.W.3d at 151). 
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of breach of fiduciary duty to be filed here, even if his own physical contacts with 

the State were very limited. 

Additionally, I concur with the majority with regards to Count II, that the trial 

court could not have jurisdiction over appellants for the allegation they sat mute in 

Taiwan. 

However, as for any alleged breach of fiduciary duty against DynaColor, the 

supreme court specifically declined to recognize a common-law cause of action for 

“shareholder oppression,” so no similar specific jurisdiction as to Razberi’s claim 

for breach of fiduciary duty against DynaColor. See Ritchie, 443 S.W.3d at 891. To 

the extent the majority concludes that whether DynaColor owes such a duty is soley 

a question of merits, not jurisdiction, I disagree. We must evaluate jurisdiction 

claim-by-claim addressing the relationship between the claim, the forum, and the 

defendant as we go. See TV Azteca, 490 S.W.3d at 37, 41 (citing Calder v. Jones, 

465 U.S. 783, 780 (1984)). Moreover, because the minimum-contacts test is 

intended to ensure that the defendant could reasonably anticipate being sued in the 

forum’s courts, foreseeability of a potential claim is an important—indeed, 

controlling—consideration in the analysis. See id. at 46 (citing World–Wide 

Volkswagen, 444 U.S. at 297; BMC Software, 83 S.W.3d at 795). I question how 

any foreign national could foresee a suit for breach of fiduciary duty to a fellow 

shareholder where no such relationship exists and the presence of the shareholder in 

that state is the alleged basis for exercise of jurisdiction. See id. Thus, I dissent from 
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the majority’s affirming of the denial of DynaColor’s special appearance as to Count 

VI. 

The majority also affirms the trial court’s order as to the remaining Counts I, 

III, IV, and V after concluding appellants committed fraud and otherwise deceived 

investors through the actions or statements of their agent, James Chan, as he 

represented appellants during the negotiations of a term sheet prior to the signing of 

the Stock Purchase Agreement. The term sheet contained a statement that: “The 

business, assets, financial condition, operations, results of operations and prospects 

of the Company are substantially as have been represented to LiveOak and no change 

will have occurred which, in LiveOak’s sole judgment, is or may be materially 

adverse to the Company.” The majority goes a step further to conclude that Chen 

and DynaColor purposefully availed themselves of the benefits of conducting 

business in this State because there was evidence that Chen, as a director of Razberi,4

approved the Stock Purchase Agreement, Chen and DynaColor knew the Stock 

Purchase Agreement was being negotiated and signed in Texas, and that alleged 

misrepresentations in the approved agreement are the same ones negotiated in the 

term sheet. 

But in order for a nonresident defendant’s contacts in a forum state to support 

an exercise of specific jurisdiction, there must be at least some—indeed a 

4

 I question, too, whether Chen’s approval of a statement in his capacity as director of Razberi would 

permit attributing any misrepresentations in said statement to Chen. 
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“substantial”—connection between those contacts and the facts the trial court will 

focus on to prove the nonresident defendant’s liability. See Moki Mac, 221 S.W.3d 

at 585; accord Walden, 571 U.S. at 284; Jani-King Franchising, Inc. v. Falco 

Franchising, S.A., No. 05-15-00335-CV, 2016 WL 2609314, at *5 (Tex. App.—

Dallas May 5, 2016, no pet.) (mem. op.), overruled on other grounds by Steward 

Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 129 (Tex. App.—Dallas 2021, 

no pet.); see also Saidara, 633 S.W.3d at 126. The facts necessary to prove 

appellants’ liability here appear to be whether Chen or DynaColor disclosed any 

changes or conditions they knew of that would affect the investors’ or Galvin’s 

decisions. Thus, the complained of conduct is, as in Count II, failure to disclose, 

which is a non-action and not “the defendant’s conduct that must form the necessary 

connection with the forum State.” See Walden, 571 U.S. at 285. By this theory, a 

defendant could be haled into any state or country where they were continuously 

engaged in not acting—a concept antithetical to the notion of purposeful availment. 

II. Having Affirmed in Part the Trial Court’s Order, the Majority Cannot 

Be Understood to Reinstate the Trial Court’s Final Judgment 

The majority opinion disposes of the special appearance on the merits, but the 

opinion does not address what effect, if any, the trial court’s judgment entered while 

the appeal of the special appearance remained pending. Instead, the majority opinion 

remands the case to the trial court to conform the judgment according to and 

consistent with the opinion. I believe further direction would be helpful here in view 

of this case’s tortured history through our Court. 
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By affirming in part the trial court’s order, I do not believe that we can be 

taken as leaving the partial or final judgments in place, nor could I understand the 

majority’s opinion to reinstate the trial court’s judgment. To reach that decision, the 

Court would have to conclude the right to review of the summary judgment was lost 

either by briefing waiver or waiver by failing to file a second notice of appeal. In 

other words, either the judgment should be reinstated because the parties failed to 

challenge that judgment in their initial briefs filed in January 2020 a month before 

the judgment was even entered, or the judgment should be reinstated because the 

parties failed to file a separate notice of appeal after the judgment was entered, which 

the Texas Supreme Court has already held to be error. See Chen v. Razberi Techs., 

Inc., 645 S.W.3d 773, 782 (Tex. 2022). 

This Court did not invite the parties to file supplemental briefing after the 

supreme court’s decision and remand to this Court. However, the parties did file 

supplemental briefs in response to our order inviting them to do so in our order issued 

after this Court withdrew the first opinion dismissing the case as moot and before 

the second opinion reinstating the earlier opinion. In those supplemental briefs, they 

clearly argued not only the merits of the special appearances but also whether the 

trial court had jurisdiction to render final judgment while the interlocutory appeal 

was pending in this Court. Accordingly, it cannot be that this Court’s judgment 

reinstates the trial court’s final judgment because of any briefing waiver by 

appellants. 
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For these reasons, I would provide more complete guidance to the trial court 

on remand in order to make clear that its summary judgment order must be vacated.5

CONCLUSION

Thus, I concur in part with and dissent in part from the majority’s judgment 

and write separately to express my understanding that this Court’s judgment cannot 

possibly be understood to reinstate the trial court’s summary judgment or final 

judgment. 

191551DF.P05 

5

 Separate and apart from the effect of the supreme court’s mandate and the impossibility of finding the 

merits of the summary judgment to have been waived, I would also reiterate my view that the trial court 

lacked subject matter jurisdiction to render a judgment while this Court was vested with jurisdiction over 

that question. See Chen v. Razberi Techs., Inc., 649 S.W.3d 232, 237 (Tex. App.—Dallas 2021, no pet.) 

(Schenck, J., dissenting), reversed by 645 S.W.3d 773 (Tex. 2022). Having already reversed our judgment 

finding the merits appeal to be lost to mootness, the supreme court was not obliged to, and did not, reach 

the question of what should be done with the merits judgment. Of course, had the issue already been 

waived, this remand to us would be pointless.

/David J. Schenck/

DAVID J. SCHENCK 

JUSTICE