COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

NUMBER 13-14-00064-CV

QUALITY LEASE AND Appellant,

RENTAL HOLDINGS, LLC

v.

GRETA YVETTE MOBLEY,

DAVID MICHAEL MOBLEY,

TEXAS QUALITY MATS, LLC,

TEXAS QUALITY GATE GUARD

SERVICES, LLC, AND QUALITY

LEASE AIR SERVICE, LLC, Appellees.

NUMBER 13-14-00066-CV

ALLAN MARTIN, Appellant,

v.

GRETA YVETTE MOBLEY,

DAVID MICHAEL MOBLEY,

TEXAS QUALITY MATS, LLC,

TEXAS QUALITY GATE GUARD

SERVICES, LLC, AND QUALITY

LEASE AIR SERVICE, LLC, Appellees
On appeal from the 329th District Court

of Wharton County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza and Benavides

Memorandum Opinion by Justice Garza

These two interlocutory appeals arise from a commercial dispute involving 

appellees Greta Yvette Mobley, David Michael Mobley, Texas Quality Mats, LLC, Texas 

Quality Gate Guard Service, LLC, and Quality Lease Air Service, LLC (collectively 

“Mobley”). In appellate cause number 13-14-00064-CV, appellant Quality Lease and 

Rental Holdings (“QLRH”) contends that the trial court erred in denying its motion to 

compel arbitration. In appellate cause number 13-14-00066-CV, appellant Allan Martin 

contends that the trial court erred in denying his special appearance. We affirm the trial 

court’s denial of QLRH’s motion to compel arbitration, and we affirm in part and reverse 

and render in part with respect to Martin’s special appearance.

I. BACKGROUND

Michael Mobley is a Texas resident who owned oilfield service companies Quality 

Lease Service, LLC (“Quality Lease”) and Quality Lease Rental Service (“Quality Rental”). 

QLRH is a Delaware limited liability company formed by Martin, a Florida resident. QLRH 

is owned by Rocaceia, LLC (“Rocaceia”), which is also a Delaware limited liability 

company formed and managed by Martin.

On December 31, 2012, QLRH entered into a “Purchase and Contribution 

Agreement” (the “Purchase Agreement”) by which it agreed to obtain all the stock of 
3

Quality Lease and Quality Rental from Mobley in exchange for around $60 million. Under 

the Purchase Agreement, Mobley was to retain a minority interest in QLRH through a 

holding company. The following arbitration clause was included as section 10.10 of the 

Purchase Agreement:

Notwithstanding any provision of this Agreement to the contrary, all 

disputes, controversies or claims (with the exception of Third Party Claims 

and any claim for equitable relief, including but not limited to injunctive relief 

or specific performance) arising out of or relating to this Agreement and the 

transactions contemplated hereby shall be resolved by agreement among 

the parties, or, if not so resolved within thirty (30) days then the dispute shall 

be resolved by final and binding arbitration in Tampa, Florida pursuant to 

the then existing Commercial Arbitration Rules of the American Arbitration 

Association [“AAA”]. The arbitrator will apply the law of the State of Florida, 

United States of America, as to both substantive and procedural questions. 

Such arbitration will take place before a single arbitrator. The single 

arbitrator shall be agreed upon by the parties to the arbitration. In the event 

the parties cannot agree upon an arbitrator within twenty (20) calendar days 

after the effective date of either party’s notice to arbitrate, the arbitrator will 

be appointed pursuant to the Commercial Arbitration Rules of the American 

Arbitration Association. . . .

The Purchase Agreement also contained the following section 10.11, entitled “Governing 

Law; Submission to Jurisdiction; Waiver of Jury Trial”:

(a) This Agreement shall be governed by and construed in accordance 

with the internal laws of the State of Florida without giving effect to any 

choice or conflict of law provision or rule (whether of the State of Florida or 

any other jurisdiction) that would cause the application of the Laws of any 

jurisdiction other than those of the State of Florida.

(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF 

OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION 

DOCUMENTS (EXCEPT AS PROVIDED FOR OTHERWISE THEREIN) 

OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, 

TO THE EXTENT NOT ARBITRABLE IN ACCORDANCE WITH SECTION 

10.10, MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE 

UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF 

FLORIDA IN EACH CASE LOCATED IN THE CITY OF TAMPA AND 

COUNTY OF HILLSBOROUGH, AND EACH PARTY IRREVOCABLY 

SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN 

ANY SUCH SUIT, ACTION OR PROCEEDING. . . . THE PARTIES 
4

IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO 

THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING 

IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO 

PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, 

ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS 

BEEN BROUGHT IN ANY INCONVENIENT FORUM.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY 

CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR 

THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE 

COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH 

PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT 

IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL 

ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE 

OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS 

CONTEMPLATED HEREBY OR THEREBY. . . .

The same day that the Purchase Agreement was executed, Martin and Michael 

Mobley executed a separate “Employment Agreement” as contemplated in the Purchase 

Agreement. Under the Employment Agreement, QLRH agreed to employ Mobley as its 

president for three years.1 The Employment Agreement contained non-compete, nondisclosure, and exclusivity clauses, as well as a waiver of jury trial similar to the one 

included in the Purchase Agreement; however, the Employment Agreement did not 

contain its own arbitration clause. The Employment Agreement stated:

This Agreement will in all respects be governed by, and construed in 

accordance with the laws of the State of Texas. The parties agree that any 

action brought by either party under or in relation to this Agreement, shall 

be brought in, and each party agrees to and does hereby submit to the 

jurisdiction and venue of, any state court located in the County of 

Hillsborough, Florida (or such other county as the headquarters of [QLRH] 

may then be located) or in the federal district court of the United States 

District Court for the Middle District of Florida, Tampa Division.

 

1 The Employment Agreement further stated:

Notwithstanding anything in the foregoing to the contrary, [Mobley] understands and 

acknowledges that his employment with [QLRH] is “at-will” which means that either 

[Mobley] or [QLRH] may terminate the employment relationship and this Agreement at any 

time, for any reason, including with or without Cause (as defined herein), subject to the 

provisions set forth in this Agreement.
5

On April 6, 2013, QLRH notified Mobley that he was being placed on administrative 

leave pending an investigation as to whether he had breached the Employment 

Agreement and his fiduciary duty to QLRH by, among other things, diverting QLRH 

business to other companies affiliated with Mobley. Two days later, QLRH filed suit 

against Mobley in the United States District Court for the Middle District of Florida, alleging 

breach of contract, breach of fiduciary duty, and fraud. QLRH alleged that Mobley had 

violated various provisions of the Employment Agreement. QLRH also alleged that 

Mobley made a number of false statements in connection with the sale of Quality Lease 

and Quality Rental, including misrepresentations regarding the “revenue and earnings of 

the QLRH-purchased entities.” Mobley moved to dismiss the federal court lawsuit, 

asserting that QLRH’s claims were meritless and merely reflected Martin’s “buyer’s 

remorse” over the December 31, 2012 transaction.

Mobley then filed the instant suit in the 329th District Court of Wharton County, 

Texas, on April 10, 2013, asserting claims of conversion and invasion of privacy against 

QLRH. Mobley later filed an amended petition naming Martin as an additional defendant

and asserting an additional claim of assault and battery.2 Martin filed a special 

appearance in the Texas suit contending that the court lacked personal jurisdiction over 

him in his personal capacity. QLRH answered the Texas suit and filed counterclaims for 

breach of the Employment Agreement, equitable rescission of the Purchase Agreement, 

injunctive relief, and tort damages. QLRH then filed an agreed motion to dismiss the 

 

2 Mobley’s First Amended Petition also set forth a claim of negligent hiring, supervision, and 

retention. Mobley abandoned this claim, however, in his Third Amended Petition, which was the live 

pleading at the time the trial court rendered the judgments on appeal.
6

Florida federal court lawsuit without prejudice. The agreed motion noted that suit was 

pending in Texas state court and stated: “The parties agree that it is most efficient for all 

disputes among them and their affiliates to be resolved in Texas.”

3

Mobley’s pleadings in the Texas suit were initially limited to claims arising from the 

Employment Agreement, which did not contain an arbitration clause, and claims for 

equitable relief arising under the Purchase Agreement, which were explicitly excluded 

under that contract’s arbitration clause. On November 4, 2013, however, Mobley filed a 

Third Amended Petition raising claims at law that arose under the Purchase Agreement4

and therefore, according to QLRH, were subject to arbitration. In particular, Mobley 

alleged in his Third Amended Petition that Martin “never intended to perform” his 

obligations under the Purchase Agreement and that he fraudulently induced Mobley to 

enter into the agreement.

Believing that these new claims were covered by the Purchase Agreement’s 

arbitration clause, QLRH filed a motion to compel arbitration in the Texas suit. In 

response to the motion, Mobley contended that QLRH had waived arbitration by filing its 

suit in Florida federal court. After a hearing, the trial court denied the motion and QLRH 

appealed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West, Westlaw through 2013 

3d C.S.) (permitting interlocutory appeals “under the same circumstances that an appeal 

 

3 On June 14, 2013, Mobley’s counsel sent an arbitration demand letter to Martin and QLRH 

alleging that: (1) Martin and QLRH “have not complied with the ‘Post-Closing Adjustment’ requirements 

contained in Section 2.04 of the [Purchase] Agreement”; (2) Mobley “failed to account for and pay the costs 

associated with housing units that were incurred by [Mobley]”; and (3) Martin and QLRH have “failed to 

complete 2012 tax filings.” According to QLRH, Mobley never filed a formal demand for arbitration with 

AAA and no arbitration was ever initiated on these claims.

4 The Third Amended Petition stated in its venue section that the lawsuit “arises out of business 

dealings between the parties in Wharton County, Texas, and it requires the construction of, and seeks relief 

under, [the Purchase Agreement] dated December 31, 2012, and other documents entered into on that 

same date.”
7

from a federal district court’s order or decision would be permitted by 9 U.S.C. Section 

16”); see also 9 U.S.C.A. § 16(a)(1)(C) (West, Westlaw through P.L. 113-92) (stating that 

an appeal may be taken from, inter alia, an order denying an application to compel 

arbitration). The trial court also denied Martin’s special appearance, and Martin appealed. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West, Westlaw through 2013 3d 

C.S.) (permitting appeal of interlocutory order granting or denying special appearance).

II. MOTION TO COMPEL ARBITRATION

It is undisputed that the new claims raised in Mobley’s Third Amended Petition 

“ar[ose] out of or relat[ed] to” the Purchase Agreement and were therefore covered by the 

arbitration clause contained therein. The only question with regard to those claims, 

therefore, is whether or not QLRH waived its right to arbitrate. Mobley asserts that QLRH 

waived arbitration by, among other things: (1) filing claims related to the Purchase 

Agreement in its Florida federal suit; (2) filing counterclaims related to the Purchase 

Agreement in the Texas suit; (3) stating in the agreed motion to dismiss the federal suit 

that “all disputes” between the parties would be litigated in Texas; (4) “ignoring” Mobley’s 

arbitration demands; and (5) conducting discovery.

A. Standard of Review and Applicable Law

A party seeking to compel arbitration must establish that (1) there is a valid 

arbitration agreement, and (2) the claims raised fall within that agreement’s scope. In re 

Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 2005) (orig. proceeding). Federal 

and Texas law strongly favor arbitration, and arbitration agreements that comport with 

traditional principles of contract law will be upheld. Forest Oil Corp. v. McAllen, 268 

S.W.3d 51, 56 (Tex. 2008). If a trial court finds that the claim falls within the scope of a 
8

valid arbitration agreement, the court has no discretion but to stay its own proceedings 

and compel arbitration. Id.

Generally, we review a trial court’s denial of a motion to compel arbitration for 

abuse of discretion. Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791, 

800 (Tex. App.—Houston [1st Dist.] 2011, no pet.). However, when an appeal from a 

denial of a motion to compel arbitration turns on a legal determination, we apply a de 

novo standard. Forest Oil Corp., 268 S.W.3d at 55 n.9; see Rachal v. Reitz, 403 S.W.3d 

840, 843 (Tex. 2013) (“When reviewing a denial of a motion to compel arbitration, we 

defer to the trial court’s factual determinations that are supported by evidence but review 

the trial court’s legal determinations de novo.”).

Where, as here, the trial court makes no written findings of fact and conclusions of 

law in support of its ruling, “all facts necessary to support the judgment and supported by

the evidence are implied.”5 Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 

333, 337 (Tex. 2009) (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 

(Tex. 2002)). We will affirm the ruling if it can be upheld on any legal theory supported 

by the evidence. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984).

B. Choice of Law

As an initial matter, we address what body of substantive law should be applied to 

the question of whether QLRH waived arbitration under section 10.10 of the Purchase 

Agreement. Mobley contends that Florida state law must apply because of the choice of 

 

5 At the conclusion of the December 11, 2013 hearing on QLRH’s motion to compel arbitration, the 

trial court orally recited several conclusions of law, to which QLRH refers extensively in its brief. However, 

no written findings of fact or conclusions of law were filed, and we may not consider a trial court’s oral 

comments at a hearing as a substitute for formal written findings of fact and conclusions of law. See In re

W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (citing TEX. R. CIV. P. 296).
9

law provision contained in the Purchase Agreement. QLRH contends that, although 

Florida law would apply to substantive issues due to the choice-of-law provision, the 

Federal Arbitration Act (“FAA”) applies exclusively to the question of whether arbitration 

was waived.6

We agree with Mobley that Florida law applies to the question of whether 

arbitration has been waived. As noted, the choice of law provision in section 10.11 of the 

Purchase Agreement states:

This Agreement shall be governed by and construed in accordance with the 

internal laws of the State of Florida without giving effect to any choice or 

conflict of law provision or rule (whether of the State of Florida or any other 

jurisdiction) that would cause the application of the Laws of any jurisdiction 

other than those of the State of Florida.

QLRH argues that the FAA applies exclusively because the Purchase Agreement 

concerned a transaction involving interstate commerce. See Jack B. Anglin Co., Inc. v. 

Tipps, 842 S.W.2d 266, 269–70 (Tex. 1992) (stating that the FAA “applies to all suits in 

state and federal court when the dispute concerns a contract evidencing a transaction 

involving commerce”) (citing Perry v. Thomas, 482 U.S. 483, 489 (1987)). However, the 

FAA does not state what is necessary to show that a party waived arbitration, and there 

is nothing in the FAA precluding parties from contracting to have a particular body of 

substantive law apply to the statutorily-unaddressed question of waiver. Moreover, the 

 

6 QLRH further argues that, “given the nature of the trial court’s findings,” the choice of law issue is 

irrelevant here because “[t]he trial court’s error was in misinterpreting which claims were subject to the 

arbitration clause and incorrectly interpreting the claims at issue in the Florida litigation.” However, as 

noted, the trial court’s oral comments do not constitute formal findings of fact or conclusions of law. See 

id. In any event, we find that the choice of law issue is relevant because, unlike Texas law, Florida law 

provides that a party claiming waiver of arbitration is not obligated to show that it was prejudiced. Compare 

Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005) (“[T]here is no requirement 

for proof of prejudice in order for there to be an effective waiver of the right to arbitrate.”) with Perry Homes 

v. Cull, 258 S.W.3d 580, 589–90 (Tex. 2008) (“[A] party waives an arbitration clause by substantially 

invoking the judicial process to the other party’s detriment or prejudice.”).
10

United States Supreme Court has held that the FAA does not pre-empt state arbitration 

law because Congress’s enactment of the statute did not evince an intent to “occupy the 

entire field of arbitration.” Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford 

Jr. Univ., 489 U.S. 468, 469 (1989).

For the foregoing reasons, we conclude that Florida substantive law applies to the 

question of whether QLRH waived arbitration under section 10.10 of the Purchase 

Agreement. We now proceed to consider the merits of that question.

C. Analysis

Waiver is the voluntary and intentional relinquishment of a known right or conduct 

which implies the voluntary and intentional relinquishment of a known right. Raymond 

James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005). The right to 

arbitration, like any contract right, can be waived. Id. A party’s contractual right to 

arbitration may be waived by actually participating in a lawsuit or taking action 

inconsistent with that right. Id.

The . . . strong federal policy in favor of enforcing arbitration agreements is 

based upon the enforcement of contract, rather than a preference for 

arbitration as an alternative dispute resolution mechanism. Thus, the 

question of whether there has been waiver in the arbitration agreement 

context should be analyzed in much the same way as in any other 

contractual context. The essential question is whether, under the totality of 

the circumstances, the defaulting party has acted inconsistently with the 

arbitration right.

Id. (quoting Nat’l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 

772, 774 (D.C. Cir. 1987)) (internal quotations and citations omitted). Under Florida law, 

“there is no requirement for proof of prejudice in order for there to be an effective waiver 

of the right to arbitrate.” Id.
11

QLRH asserts that the claims it brought in its Florida federal suit were related solely 

to the Employment Agreement and that, therefore, its litigation of those claims did not 

constitute “action inconsistent” with its right to arbitrate under the Purchase Agreement. 

See id. However, QLRH’s complaint in the federal suit alleged in part that Mobley 

committed fraud by, among other things, making false representations prior to the sale. 

The complaint alleged that QLRH “relied on Mobley’s false representations to its 

detriment” and requested money damages. These claims appear to implicate the 

circumstances surrounding the development and execution of the Purchase Agreement.

Even if we were to assume that QLRH’s federal claims related exclusively to the 

Employment Agreement, those claims were nevertheless arbitrable. As noted, though 

the Employment Agreement itself did not contain its own arbitration clause, the Purchase 

Agreement’s very broad arbitration clause applied to “all disputes, controversies or claims 

(with the exception of Third Party Claims and any claim for equitable relief, including but 

not limited to injunctive relief or specific performance) arising out of or relating to this 

Agreement and the transactions contemplated hereby.” Crucially, the Purchase 

Agreement specifically defined “Transaction Documents” as including “the Mobley 

Employment Agreement.” From our review of the entire Purchase Agreement, we are left 

with no doubt that the transaction evidenced by the Employment Agreement was one of 

the “transactions contemplated” by the Purchase Agreement. Accordingly, claims arising 

from Mobley’s employment with QLRH—“with the exception of Third Party Claims and 

any claim for equitable relief”—were subject to arbitration. It follows that, by filing suit in 

Florida on claims arising from the Employment Agreement, and by requesting money 

damages on those claims, QLRH acted inconsistently with its right to arbitrate. See id.
12

Further, QLRH filed counterclaims in Mobley’s Texas state suit which mirrored the 

claims brought by QLRH in federal court. Those claims arose under the Employment 

Agreement, and the counterpetition sought money damages.7 Moreover, the 

counterpetition did not state that the counterclaims were brought subject to the trial court’s 

ruling on the motion to compel arbitration. The filing of those counterclaims, therefore, 

also constituted action inconsistent with QLRH’s right to arbitrate under the Purchase 

Agreement. See id.

Because QLRH “acted inconsistently with the arbitration right,” id., the trial court 

did not err in denying QLRH’s motion to compel arbitration.8 We overrule QLRH’s issue 

on appeal.

III. SPECIAL APPEARANCE

A. Standard of Review

Issues of personal jurisdiction are questions of law and are reviewed de novo. 

Retamco Operating, Inc., 278 S.W.3d at 337 (citing BMC Software Belg., 83 S.W.3d at 

795). The plaintiff has the initial burden to “plead sufficient allegations to confer 

jurisdiction.” Id. Once that burden is met, the defendant seeking to avoid the court’s 

 

7 QLRH sought rescission of the Purchase Agreement on grounds that Mobley committed fraud by 

making misrepresentations as to the assets of Quality Lease and Quality Rental. QLRH alleged that Mobley 

made those misrepresentations “with the intention that [QLRH] rely on them,” and that “[QLRH] did rely on 

them in purchasing [Quality Lease] and [Quality Rental], in executing the [Purchase] Agreement, and in 

partially paying the consideration therefor in excess of $60 million.” Rescission is an equitable remedy, 

see, e.g., Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 826 (Tex. 2012), and the arbitration clause 

at issue did not apply to actions in equity, but QLRH’s counterpetition also asked for money damages based 

on “[e]ach of the acts and omissions of” Mobley. QLRH’s filing of this counterclaim therefore arguably also 

constituted “action inconsistent” with the right to arbitrate. See Raymond James Fin. Servs., Inc. v. 

Saldukas, 896 So. 2d 707, 711 (Fla. 2005).

8

In light of this conclusion, we need not address Mobley’s assertions that QLRH waived arbitration 

by other means. See TEX. R. APP. P. 47.1; In re W.E.R., 669 S.W.2d at 716 (“Where findings of fact and 

conclusions of law are not properly requested and none are filed, the judgment of the trial court must be 

affirmed if it can be upheld on any legal theory that finds support in the evidence.”).
13

jurisdiction takes on the burden to negate “all potential bases for jurisdiction pled by the 

plaintiff.” Id.

The defendant can negate jurisdiction on either a factual or legal basis. 

Factually, the defendant can present evidence that it has no contacts with 

Texas, effectively disproving the plaintiff’s allegations. The plaintiff can then 

respond with its own evidence that affirms its allegations, and it risks 

dismissal of its lawsuit if it cannot present the trial court with evidence 

establishing personal jurisdiction. Legally, the defendant can show that 

even if the plaintiff’s alleged facts are true, the evidence is legally insufficient 

to establish jurisdiction; the defendant’s contacts with Texas fall short of 

purposeful availment; for specific jurisdiction, that the claims do not arise 

from the contacts; or that traditional notions of fair play and substantial 

justice are offended by the exercise of jurisdiction.

Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653, 659 (Tex. 2010) (footnotes omitted).

When, as here, a trial court does not issue formal written findings of fact or 

conclusions of law to support its special-appearance determination, we presume that all 

factual disputes were resolved in favor of the trial court’s ruling. Spir Star AG v. Kimich, 

310 S.W.3d 868, 871–72 (Tex. 2010).

B. Applicable Law

Non-residents are subject to the personal jurisdiction of Texas courts if: (1) 

jurisdiction is authorized under the state’s long-arm statute; and (2) jurisdiction comports 

with guarantees of the United States and Texas Constitutions. Id. Under Texas’s longarm statute, a non-resident defendant is within the court’s jurisdiction if the defendant 

does business in the state. See PHC–Minden, L.P. v. Kimberly–Clark Corp., 235 S.W.3d 

163, 166 (Tex. 2007). A non-resident “does business in this state” if the non-resident, 

among other things, “commits a tort in whole or in part in this state.” TEX. CIV. PRAC. &

REM. CODE ANN. § 17.042(2) (West, Westlaw through 2013 3d C.S.). The Texas Supreme 

Court has held that, under the “broad language” of Texas’s long-arm statute, personal 
14

jurisdiction extends “as far as the federal constitutional requirements of due process will 

permit.” BMC Software Belg., 83 S.W.3d at 795 (citing U–Anchor Adver., Inc. v. Burt, 553 

S.W.2d 760, 762 (Tex. 1977)). 

The exercise of personal jurisdiction is constitutional when (1) the non-resident 

defendant has established minimum contacts with the forum, and (2) the exercise of 

jurisdiction follows the traditional notions of fair play and substantial justice. PHC–

Minden, L.P., 235 S.W.3d at 166 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 

(1945)). Only in rare cases will the exercise of jurisdiction not comport with fair play and 

substantial justice when the non-resident defendant has purposefully established 

minimum contacts with the forum state. Guardian Royal Exch. Assur., Ltd. v. English 

China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991).

Personal jurisdiction exists if the nonresident defendant’s minimum contacts give 

rise to either specific jurisdiction or general jurisdiction. BMC Software Belg., 83 S.W.3d 

at 795–96 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–

14 (1984)). Specific jurisdiction is established if the defendant’s alleged liability arises 

from or is related to an activity conducted within the forum. Id. In contrast, general 

jurisdiction is present when a defendant’s contacts in a forum are continuous and 

systematic so that the forum may exercise personal jurisdiction over the defendant even 

if the cause of action did not arise from or relate to activities conducted within the forum 

state. Id.

C. Analysis

In his special appearance, Martin argued, as he does on appeal, that: (1) the trial 

court did not have general jurisdiction over him due to the fiduciary shield doctrine; and 
15

(2) Mobley alleged insufficient facts to establish specific jurisdiction over him. In 

response, Mobley did not dispute that the trial court lacked general jurisdiction over 

Martin. Accordingly, we address only whether the court had specific jurisdiction over 

Martin with respect to the claims raised by Mobley.9 We will do so on a claim-by-claim 

basis. See Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir. 2006) (“[I]f 

a plaintiff’s claims relate to different forum contacts of the defendant, specific jurisdiction 

must be established for each claim.”); cf. Touradji v. Beach Capital P’ship, L.P., 316 

S.W.3d 15, 26 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (noting that “when separate 

claims are based on the same forum contacts, a separate analysis of each claim is not 

required”); cf. also Davis Invs., VI, LP v. Holtgraves, No. 14–08–00222–CV, 2009 WL 

975961, at *12 n.7 (Tex. App.—Houston [14th Dist.] Feb. 26, 2009, pet. denied) (mem. 

op.) (agreeing “with other courts that generally a specific-jurisdiction analysis should be 

performed on a claim-by-claim basis” but declining to do so because plaintiff’s claims all 

arose from same facts and defendant asserted single basis for his special appearance to 

each claim).

In his first amended petition, Mobley brought claims of conversion, invasion of 

privacy, and assault and battery against all defendants, including Martin in his individual 

capacity. Martin then filed his special appearance on August 22, 2013. Subsequently, 

Mobley filed two additional amended petitions, the latter of which contained additional 

 

9 The parties devote much briefing to the issue of whether the fiduciary shield doctrine precludes 

personal jurisdiction over Martin. That doctrine “prevents the attribution to corporate agents of contacts 

with Texas resulting solely from transacting the corporate principal’s business in the state.” Stull v. LaPlant, 

411 S.W.3d 129, 134 (Tex. App.—Dallas 2013, no pet.). However, “courts applying the fiduciary shield 

doctrine have limited its application to attempts to exercise general jurisdiction over a nonresident 

defendant.” Cagle v. Clark, 401 S.W.3d 379, 390 (Tex. App.—Texarkana 2013, no pet.) (emphasis in 

original). Because Mobley did not dispute that the trial court lacked general jurisdiction over Mobley, we 

do not address whether the fiduciary shield doctrine applies.
16

allegations that Martin committed fraud in the inducement and breach of fiduciary duty. 

Mobley argues on appeal that Martin did not preserve any jurisdictional challenge to the 

fraud and breach of fiduciary duty claims because his special appearance was filed before 

those claims were brought and therefore did not address those claims. We agree. 

Although both parties filed responses, replies, and briefs on the personal jurisdiction 

issue, Martin did not file any pleading amending or supplementing his special appearance 

motion to address the fraud and fiduciary duty claims. See TEX. R. CIV. P. 120a(1) (stating 

that a special appearance “may be amended to cure defects”). Martin therefore did not 

preserve any appellate issue with regard to those claims.10 See TEX. R. APP. P. 33.1; see 

also State v. C.J.F., 183 S.W.3d 841, 852 (Tex. App.—Houston [1st Dist.] 2005, pet. 

denied) (“Although subject matter jurisdiction may be raised for the first time on appeal, 

whether the trial court had personal jurisdiction may not.”). We overrule Martin’s issue on 

appeal as to those claims, and we proceed to address the remaining claims—namely, 

conversion, invasion of privacy, and assault and battery.

Mobley’s conversion and invasion of privacy11 claims alleged that Martin broke into 

a safe owned by Mobley but kept at QLRH’s offices in El Campo, Texas, and that Martin 

“wrongfully exercised dominion and control” over Mobley’s personal property, including 

 

10 We note that specific jurisdiction as to QLRH’s fraud and fiduciary duty claims would be based 

on a wholly separate and distinct set of “contacts” with Texas than the assault, conversion and invasion of 

privacy claims. Accordingly, we believe QLRH was required to address jurisdiction as to the fraud and 

fiduciary duty claims specifically in order to preserve that issue for appellate review. See TEX. R. APP. P.

33.1 (stating that, to preserve an issue for appellate review, a party must make a complaint to the trial court 

with “sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were 

apparent from the context”); Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir. 2006) (“[I]f 

a plaintiff’s claims relate to different forum contacts of the defendant, specific jurisdiction must be 

established for each claim.”).

11 This type of invasion of privacy claim has been characterized as an “intrusion upon seclusion” 

claim. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). An unwarranted intrusion upon seclusion 

is proved by showing (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, 

or private affairs or concerns that (2) would be highly offensive to a reasonable person. Id.
17

“personal income tax returns and other business and financial papers,” which were 

contained in the safe. The assault claim alleged that QLRH’s security guards, at Martin’s 

direction, assaulted Mobley when he attempted to retrieve personal belongings from 

QLRH’s offices after he had been placed on administrative leave.

As part of his response to Martin’s special appearance, Mobley filed an affidavit in 

which he stated, in relevant part, as follows:

On April 6, 2013, I was notified that I had been administratively placed on 

leave by [QLRH]. After this notification, I entered the premises located at 

480 County Road 355, El Campo, Wharton County, Texas, the location of 

many of my personal items.

I encountered Allan Martin while at this location. I know Mr. Martin as I 

concluded a sale of my business to him in December 2012 and his 

company, [QLRH], was leasing the premises located at 480 County Road 

355, El Campo, Wharton County, Texas. [QLRH] is managed and 

controlled by Allan Martin. [QLRH] conducts business in the State of Texas 

and has over 75 employees and other assets located in Texas.

I informed Mr. Martin that I was there to retrieve my personal belongings. 

Mr. Martin was there with armed security guards. I proceeded to go to my 

office on the second floor when I saw·Mr. Martin motion to the security 

guards to prevent my access to the second floor. I was placed in a 

chokehold for several moments by the security guards. My son who was 

with me was pepper sprayed by the security guards when he attempted to 

help me. It was apparent to me based on the non-verbal conduct of Mr. 

Martin that included his gestures and motions, that he was in control of and 

directed the security guards in their activities including their assault of me.

Mobley’s son stated the following in an affidavit attached to the response:

When my father went to go to the second floor, I saw Mr. Martin motion to 

the security guards, by the nod of his head, to halt my father from going 

upstairs. Immediately after Mr. Martin motioned to the security guards, the 

security guards grabbed my father and placed him in a chokehold. 

Immediately, I moved to assist my father and I was pepper-sprayed by the 

security guards.

In reply to Mobley’s response and affidavit evidence, Martin argued that the 

evidence “unequivocally demonstrates” that the security personnel were not acting at his 
18

direction when they allegedly assaulted Mobley. In an affidavit attached to his reply, 

Martin stated, in relevant part:

2. In my personal capacity, I did not employ The BlackStone Group 

Partners LP [“BSG”], a licensed private security firm. [BSG] was hired 

by [QLRH] as an independent contractor to protect its employees and 

property after Michael Mobley had assaulted its employees and 

threatened further physical harm to both. I did not direct nor did I 

supervise the agents of [BSG].

3. On April 6, 2013, I did not instruct, encourage or direct agents of [BSG] 

to assault Michael Mobley. I did observe that agents of [BSG] made 

physical contact with Michael Mobley but this was only when he 

refused to obey instructions that he was not to enter the second story 

of the company’s building. This contact was not made, however, at 

my request or direction.

4. I have never reviewed any family or personal records of Yvette Mobley 

nor have I ever had in my personal possession any personal income 

tax returns or financial records belonging to the plaintiffs.

Martin’s reply also included an affidavit by Richard Kent Morrison Jr., one of the security 

guards involved in the alleged assault. Morrison stated, in relevant part:

3. On April 6, 2013, I was at the offices of [QLRH] when Michael Mobley 

entered in an aggressive and agitated state after he had previously 

been instructed by Allan Martin not to come to the company offices. 

He was instructed by BSG personnel to remain calm and to wait for 

law enforcement, which had been called and was on its way.

4. Michael Mobley ignored these instructions and attempted to force his 

way to the second floor of the building. I was compelled to grab him 

in order to protect BSG Officer Kain Kennedy, who Mobley charged 

towards in a threatening and aggressive manner. BSG personnel did 

not place Michael Mobley in a chokehold but rather restrained him with 

a variation of a full-nelson, which places no pressure on the throat of 

the subject but merely traps an aggressor’s arms and prevents him 

from harming others.

5. My actions and those of other BSG security personnel were in no way 

directed or suggested by Allan Martin but were solely the result of 

Michael Mobley’s aggressive actions toward security personnel. 

Throughout the entire incident, Allan Martin was standing behind the 
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security personnel so that neither we nor Michael Mobley could see 

him.

Martin further contended in his reply that, even if all of Mobley’s allegations are true, there 

can be no tort liability because: (1) “the employer of an independent contractor that 

provides security services is not vicariously liable for the contractor’s actions unless the 

employer exercises detailed control over the security personnel”; and (2) “[i]nstructing 

security to prevent access to company property by a terminated employee does not 

constitute assault.”

We agree with Martin that, even if Mobley’s factual allegations are taken as true, 

they are legally insufficient to support personal jurisdiction. In Fifth Club, Inc. v. Ramirez, 

the Texas Supreme Court considered whether a nightclub owner was vicariously liable 

for an assault committed against a patron by a security officer hired as an independent 

contractor by the nightclub. 196 S.W.3d 788, 790 (Tex. 2006). The Court noted the 

general rule that “an employer may become liable for the independent contractor’s 

tortious acts only if the employer controls the details or methods of the independent 

contractor’s work to such an extent that the contractor cannot perform the work as it 

chooses.” Id. at 791 (citing Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 

2001)).12 In Fifth Club, an employee of the nightclub “signaled” to the security officer to 

remove the patron, but there was no evidence that any representative of the nightclub 

 

12 There is a recognized exception to this general rule for “nondelegable duties.” Fifth Club, Inc. v. 

Ramirez, 196 S.W.3d 788, 795 (Tex. 2006) (citing Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004)). 

A duty is “nondelegable” when it “is imposed by law on the basis of concerns for public safety.” Id. (citing 

MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex. 1992)). In such cases, “the party bearing the 

duty cannot escape it by delegating it to an independent contractor.” Sanchez, 836 S.W.2d at 153. The 

Fifth Club Court found that the duties performed by the security officer in that case were not nondelegable. 

Id. at 795 (noting that “the Legislature has not identified security work as carrying such nondelegable duties 

or carved out a special exception allowing business owners or employers to be held liable for the conduct 

of their independent-contractor security personnel”). Likewise, we find that the security work at issue in this 

case was not nondelegable.
20

“gave more than general directions” to the security officer, nor any evidence that it 

“retained the right to control the manner in which [the security officer] performed his job.” 

Id. at 792. The Court held, therefore, that the nightclub could not be held vicariously liable 

for the security officer’s conduct. Id. We find the facts alleged by Mobley in his assault 

claim to be analogous to those at issue in Fifth Club. Mobley and his son stated that 

Martin “motioned” or “nodded” to Morrison prior to the assault, but there is no evidence 

that Martin controlled the “details or methods” of Morrison’s work, nor is there any 

evidence indicating that Morrison was unable to perform the work as he chose. See id.

at 791. Mobley therefore failed to meet his burden to produce evidence establishing 

personal jurisdiction as to the assault claim. See Kelly, 301 S.W.3d at 659.

As to Mobley’s invasion of privacy and conversion claims against Martin, we find 

that Martin has conclusively negated all potential bases for jurisdiction. See Retamco 

Operating, Inc., 278 S.W.3d at 337. In particular, Martin stated in his affidavit that he 

“never had in [his] personal possession any personal income tax returns or financial 

records belonging” to Mobley. Mobley did not produce any affidavit testimony or other 

affidavit testimony refuting this assertion. Accordingly, Mobley failed to meet his burden 

to produce evidence establishing personal jurisdiction as to the conversion and invasion 

of privacy claims. See id. We sustain Martin’s issue as to these claims.

IV. CONCLUSION

In appellate cause number 13-14-00064-CV, we affirm the trial court’s judgment 

denying QLRH’s motion to compel arbitration. In appellate cause number 13-14-00066-

CV, we reverse the trial court’s judgment denying Martin’s special appearance as to 

Mobley’s assault and battery, invasion of privacy, and conversion claims, and we render 
21

judgment granting the special appearance as to those claims. The remainder of the trial 

court’s judgment denying Martin’s special appearance is affirmed.

DORI CONTRERAS GARZA,

Justice

Delivered and filed the

19th day of June, 2014.