Dissenting Opinion Filed August 20, 2021

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-00274-CV

STEWARD HEALTH CARE SYSTEM LLC AND SOUTHWEST GENERAL 

HOSPITAL, LP, Appellants

V.

FRANK SAIDARA, Appellee

On Appeal from the 193rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-18-16862

DISSENTING OPINION

Before the Court En Banc

Dissenting Opinion by Justice Carlyle

Though I join my dissenting colleagues in concluding that allegations in a 

special appearance response may be considered on appeal, I write separately because 

I disagree that personal jurisdiction here is limited to plaintiffs’ fraud and unfair 

competition claims. I would conclude the trial court has specific personal jurisdiction 

over all of plaintiffs’ claims. 

The plaintiffs’ claims here all arise from or are related to the same forum 

contacts, and we need not perform the minimum contacts inquiry on a claim-byclaim basis. Cf. Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150–51 
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& n.6 (Tex. 2013). No case mandates us to perform a claim-by-claim analysis here, 

certainly not Moncrief, which did not hold that courts must always analyze minimum 

contacts on a claim-by-claim basis. Id. We are only required to do that when the 

claims arise from different forum contacts. See Seiferth v. Helicopteros Atuneros, 

Inc., 472 F.3d 266, 274 (5th Cir. 2006). 

The allegations here are that Saidara engaged in a course of fraud during 

months of business acquisition negotiations, culminating in misappropriation and 

illegal file downloading from a virtual clean room. See TEX. CIV. PRAC. & REM.

CODE §§ 134A.001, et seq.; 143.001, et seq. They include the derivative tort of unfair 

competition.

1 The wrinkle is that, though Saidara visited Texas during the course of 

negotiations at least once and purportedly committed the fraud that is part of the 

basis of the case, at least in part in Texas, he wrongly raided the virtual clean room 

from his home state of California. I view this as a course of the same forum contacts, 

which leads me to the conclusion that the trial court incorrectly granted the special 

appearance. See Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 26 (Tex. 

App.—Houston [1st Dist.] 2010, no pet.); Sutton v. Advanced Aquaculture Sys., Inc., 

621 F. Supp. 2d 435, 440–42 (W.D. Tex. 2007). 

1 See KBIDC Invs., LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *5 n.4 (Tex. 

App.—Dallas Oct. 9, 2020, pet. filed) (citing Greenville Automatic Gas Co. v. Automatic Propane Gas &

Supply, LLC, 465 S.W.3d 778, 788 (Tex. App.—Dallas 2015, no pet.) (unfair competition is a derivative 

tort)).
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No case or statute ties our hands to make only one conclusion about whether 

the forum contacts here arise from or are related to the appropriate degree. It is, as 

our decisions often are, a judgment call. We apply the law and common sense to 

reach our conclusions. 

In deciding whether a plaintiff’s claims are related to the same forum contacts, 

we must resist the urge to overanalyze petitions and should not commit the judicial 

institution to hypertechnical readings. After all, a plaintiff’s petition is only required 

to provide opponents “fair notice.” See TEX. R. CIV. P. 45; B.G.C. v. M.Y.R., No. 05-

20-00318-CV, 2020 WL 5987913, at *3 (Tex. App.—Dallas Oct. 9, 2020, pet. 

denied) (mem. op.). Perhaps we appellate courts could provide the trial courts 

guidance on how to analyze petitions to discern whether to aggregate minimum 

contacts on a claim or treat each contact as separate, though it strikes me as a mushy 

endeavor at best. Perhaps common sense is the best guide.

As noted, the plaintiffs here have plainly stated a course of fraud that 

culminated in a logical way, namely, trade secret theft via unauthorized electronic 

access obtained through misrepresentations. Saidara and Prospect Medical reached 

out to the Texas company Southwest General to acquire that business in Texas. 

Saidara visited Southwest General in Texas with colleagues, and then, after some 

time, allegedly raided the clean room. Texas entity Southwest General set up the 

clean room for the purpose of facilitating the negotiations and acquisition here in 

Texas. This cluster of contacts by Saidara to Texas establishes sufficient connection 
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between the allegations and Texas to confer jurisdiction on the trial court and the 

claims should proceed to trial before the same jury instead of one jury in Texas on 

two claims and one in California on the other two claims.2

Even if I did not view the contacts in aggregation and instead analyzed the 

claims’ contacts separately, I would conclude the court had jurisdiction over the 

statutory claims. We are faced with the intersection of technology and somewhat 

ancient law. Until recently, Southwest General would have physically crafted a 

secure room, likely in San Antonio, with appropriate physical security in place. Of 

course, now, this is less cost- and time-effective than providing secure electronic 

access to files to a limited group of people for them to access when and where they 

desire.

It would have been no surprise to any party that Saidara accessed the clean 

room from a computer in California. This was likely the intent of the parties, and 

saved both parties the expense of establishing a physical clean room either in Texas 

or California.3I view the access by a California entity of a Texas company’s files as 

part of a potential acquisition of a Texas company to be an act directed at Texas. See 

Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt. VI, L.P., 493 S.W.3d 65, 

72–73 (Tex. 2016) (concluding specific jurisdiction existed where defendants’ 

2

I would also conclude fundamental fairness allows all four claims the plaintiffs bring here, though 

that precise discussion is unimportant to the narrow legal issue I focus on here.

3 Though the parties here executed a “Clean Team Confidentiality Agreement,” that agreement did not 

include a forum-selection provision establishing personal jurisdiction.
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“overarching transaction” “specifically sought both a Texas seller and Texas 

assets”); Searcy v. Parex Res., Inc., 496 S.W.3d 58, 73–75 (Tex. 2016) (Canadian 

company negotiating for Colombian assets that happened to have been controlled by 

Texas company did not have sufficient contacts with Texas because it “did not 

specifically seek out a Texas seller or Texas assets”); see also Searcy at 93–94 

(Guzman, J., dissenting, joined by Boyd, J.) (thoroughly discussing cases from 

across the country finding jurisdiction with limited contacts even when parties are 

in different states than the forum). The supreme court recently reaffirmed this 

concept, analyzing the “quality and nature” of the defendant’s purposeful availment 

activity and its “‘intent or purpose’ to target the Texas market.” Luciano v. 

SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 12 (Tex. 2021).

The misappropriation claim, as pled, requires some form of using “improper 

means” to access the trade secret. See TEX. CIV. PRAC. & REM. CODE § 134A.002(3). 

In their misappropriation claim, the plaintiffs stated, “Prospect and Saidara acquired 

the trade secret information through improper means, including through fraud.” Thus 

the plaintiffs have pled that part of the action required to support liability occurred 

in Texas. See id.; see also MacDermid, Inc. v. Deiter, 702 F.3d 725, 726–27 (2d Cir. 

2012) (jurisdiction existed in Connecticut over Canadian defendant who accessed 
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Connecticut computer server to misappropriate information belonging to her 

employer).4

I would reverse the trial court and remand for further proceedings consistent 

with this opinion.

/Cory L. Carlyle//

190274f.p05 CORY L. CARLYLE

JUSTICE

Molberg and Nowell, JJ., join this dissenting opinion

4 There can be no dispute that as the legal system “struggles to keep pace with rapidly evolving 

technology,” the law of personal jurisdiction “is not immune to this struggle.” Note, Minimum Virtual 

Contacts: A Framework for Specific Jurisdiction in Cyberspace, 116 MICH. L. REV. 785 (2018). I agree 

that “[c]ourts should recognize that, while notions of territory are blurred on the internet, some virtual 

contact is established between forums through online transactions,” and there is a “need for a modified 

minimum virtual contacts model that accounts for the nuances presented by changing technology.” Id. at 

789. Regardless, the facts of this case are not limited solely to an online transaction but rather, as described 

above, involve alleged misrepresentations in Texas that are a component of the misappropriation claim.