Affirmed and Memorandum Opinion filed October 20, 2011

In The

Fourteenth Court of Appeals

NO. 14-10-01077-CV

DOMINIC MARROCCO, Appellant

V.

MARK HILL, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2010-05438

M E M O R A N D U M O P I N I O N

This is an accelerated, interlocutory appeal from the trial court’s order denying 

appellant Dominic Marrocco’s special appearance. Marrocco contends that the trial court 

erred because he has not consented to Texas’ jurisdiction, and, alternatively, that the 

enforcement of a forum-selection clause against him would be unreasonable and unjust. 

We affirm.

I

Sometime in 2008, Marrocco, a U.K. citizen and Nevada resident, began 

negotiating a partnership agreement with appellee Mark Hill. This agreement formalized 
2

Hill’s position with iDesta USA, LLC, a Nevada limited-liability company. The parties 

dispute whether Marrocco was negotiating in his individual capacity or as a 

representative of iDesta Solutions, LP, a company both parties admit has never existed.1

They also agree that Marrocco signed an agreement explicitly naming only himself and 

Hill as parties and frequently mentioning Marrocco by name. For example, the agreement 

includes this provision, referring specifically and repeatedly to Marrocco:

II. DEFINITIONS

. . .

D. ―Good Reason‖ shall mean Mr. Hill’s resignation or termination 

due to the occurrence of any of the following without Mr. Hill’s 

prior consent:

(1) a willful failure by Mr. Marrocco to substantially perform 

the obligations under this Agreement;

(2) a willful act by Mr. Marrocco that constitutes intentional 

misconduct and that is materially and demonstrably injurious 

to Mr. Hill;

(3) a willful breach by Mr. Marrocco of a material provision 

of this Agreement;

(4) a willful violation of a federal or state law or regulation by 

Mr. Marrocco applicable to the business of the Company2that 

is materially and demonstrably injurious to Mr. Hill;

(5) commission of any material act of fraud by Mr. Marrocco 

with respect to Mr. Hill;

. . . [or]

(12) the failure of Mr. Marrocco to obtain the written 

assumption of this Agreement by any successors of the 

Company . . . .

 

1 Marrocco is an officer of a U.K. company named iDesta Solutions, Limited. 

2

―Company‖ is defined in the agreement as iDesta USA.
3

The agreement’s ―Governing Law and Venue‖ clause provides that Texas law will 

govern the contract and that ―[a]ny litigation related to the terms of this Agreement shall 

be filed in Harris County District Court, Houston, Texas.‖ The agreement also contains a 

merger clause and a clause providing that ―[o]ral changes to this Agreement shall have no 

effect.‖ Before signing, Marrocco and Hill orally discussed certain changes to the 

agreement Marrocco desired. Eventually, both parties signed the agreement; the signature 

page notably included the first and only appearance of the name ―iDesta Solutions, LP‖:

IN WITNESS WHEREOF, each of the parties has executed this 

Agreement, in the case of the Company by its duly authorized officer, as of 

the date first set forth above.

IDESTA SOLUTIONS, LP

By: /s/ Dominic Anthony Marrocco

Dominic Anthony Marrocco

. . .

MARK A. HILL

By: /s/ Mark A. Hill

Mark A. Hill

. . .

Shortly after the parties signed the agreement in November 2008, Marrocco and 

Hill exchanged several emails attaching amended versions of the agreement. There is 

some dispute as to whether the parties executed any of these amended agreements, but 

they worked together for more than a year before Hill sued Marrocco in Harris County 

district court for breach of the partnership agreement, unjust enrichment, and quantum 

meruit. Marrocco contested the court’s jurisdiction and filed a special appearance. After a 

hearing, the trial court denied Marrocco’s special appearance. This appeal followed.
4

II

Whether a trial court has personal jurisdiction over a defendant is a question of 

law we review de novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 

(Tex. 2007), BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). 

When, as in this case, the trial court issues no findings of fact or conclusions of law, all 

facts necessary to support the judgment and supported by the evidence are implied. BMC 

Software, 83 S.W.3d at 795. But when the appellate record includes the reporter’s and 

clerk’s records, parties can challenge the legal and factual efficiency of these implied 

factual findings. Id.; Info. Servs. Grp., Inc. v. Rawlinson, 302 S.W.3d 392, 397 (Tex. 

App.—Houston [14th Dist.] 2009, pet. denied).

The plaintiff has the initial burden of pleading sufficient allegations to bring the 

nonresident defendant within the provisions of the Texas long-arm statute. BMC 

Software, 83 S.W.3d at 793; Rawlinson 302 S.W.3d at 397. A defendant challenging a 

Texas court’s personal jurisdiction over it must negate all jurisdictional bases. BMC 

Software, 83 S.W.3d at 793; Rawlinson, 302 S.W.3d at 397.

Texas courts may exercise jurisdiction over a nonresident if the Texas long-arm 

statute authorizes the exercise of jurisdiction and the exercise of jurisdiction is consistent 

with federal and state constitutional guarantees of due process. Moki Mac, 221 S.W.3d at 

574; BMC Software, 83 S.W.3d at 795. The Texas long-arm statute authorizes Texas 

courts to exercise jurisdiction over a nonresident defendant who ―does business‖ in the 

state. Tex. Civ. Prac. & Rem. Code § 17.042. The Texas Supreme Court has interpreted 

the broad language of the Texas long-arm statute to extend Texas courts’ personal 

jurisdiction ―as far as the federal constitutional requirements of due process will permit.‖ 

BMC Software, 83 S.W.3d at 795.

Personal jurisdiction over a nonresident defendant is constitutional when two 

conditions are met: (1) The defendant has established minimum contacts with the forum 

state, and (2) the exercise of jurisdiction comports with traditional notions of fair play 
5

and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); BMC 

Software, 83 S.W.3d at 795. Minimum contacts are sufficient for personal jurisdiction

when the nonresident defendant purposely avails himself of the privilege of conducting 

activities in the forum state, thus invoking the benefits and protections of its laws. Int’l 

Shoe, 326 U.S. at 319; Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 

784 (Tex. 2005). In determining whether a defendant has purposely availed himself of the 

forum, courts should remember that only the defendant’s contacts with the forum matter, 

the acts relied on must be purposeful rather than merely fortuitous, and the defendant 

must seek some benefit, advantage, or profit by availing himself of the forum. Michiana, 

168 S.W.3d at 785.

Texas courts may exercise two types of jurisdiction based on a nonresident’s 

contacts with the state. If the defendant has made continuous and systematic contacts 

with the forum, general jurisdiction is established regardless of whether the defendant’s 

alleged liability arises from those contacts. Moki Mac, 221 S.W.3d at 575; BMC 

Software, 83 S.W.3d at 796. In contrast, when specific jurisdiction is alleged, we focus 

the minimum-contacts analysis on the relationship among the defendant, the forum, and 

the litigation. Moki Mac, 221 S.W.3d at 575–76. Specific jurisdiction is established if the 

defendant’s alleged liability arises out of or is related to an activity conducted within the 

forum. Id. at 576. For a nonresident defendant’s forum contacts to support an exercise of 

specific jurisdiction, there must be a substantial connection between those contacts and 

the operative facts of the litigation. Id. at 585. To identify the operative facts of the 

litigation, we select those facts that would be the focus of the trial. See id; Rawlinson, 302 

S.W.3d at 398. Here, the appellee alleges only specific jurisdiction.

A defendant may also waive his right to contest personal jurisdiction. Burger King 

Corp. v. Rudzewicz, 471 U.S. 462, 473 n.14 (1985); Tri-State Bldg. Specialties, Inc. v. 

NCI Bldg. Sys., L.P., 184 S.W.3d 242, 248 (Tex. App.—Houston [1st Dist.] 2005, no 

pet.). A mandatory forum-selection clause is one of several ways a litigant may expressly 
6

or impliedly consent to personal jurisdiction. Burger King, 471 U.S. at 473 n.14; TriState, 184 S.W.3d at 248. 

Forum-selection clauses are generally enforceable and presumptively valid. In re 

Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam). A trial court abuses its 

discretion in refusing to enforce the clause unless the party opposing enforcement clearly 

shows (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for 

reasons of fraud or overreaching, (3) enforcement would contravene a strong public 

policy of the forum where the suit was brought, or (4) the selected forum would be 

seriously inconvenient for trial. Id. The burden of proof is heavy for the party challenging 

enforcement. Id.

III

Marrocco relies on Roe v. Ladymon in asserting that he signed the partnership 

agreement in a representative capacity for iDesta Solutions, LP, and not in his personal 

capacity. See 318 S.W.3d 502 (Tex. App.—Dallas 2010, no pet.). Ladymon dealt with a 

partner who signed an agreement in his representative capacity for a limited-liability 

partnership, and the court concluded that, ―by signing the contract as an agent for a 

disclosed principal, [the partner] did not become personally bound by the terms of that 

contract . . . .‖ Id. at 521. We find that case to be easily distinguished.

In Ladymon, Kimberlea Roe contracted for Metro Townhomes & Homes, L.L.P.,

to renovate her home. Id. at 507. The contract defined Roe as the ―Owner‖ and Metro as 

the ―Contractor.‖ Id. Blane Ladymon, a Metro partner, signed the contract on behalf of 

Metro and initialed each page in the blank for ―Contractor.‖ Id. at 515. Ladymon was 

never identified in the contract as a party, and the signature block clearly showed him to 

be a Metro representative:

CONTRACTOR:

METRO TOWNHOMES & HOMES, L.L.P.
7

By: /s/ Blane Ladymon

Printed Name: Blane Ladymon

Its: Partner

Id. at 515, 515 n.13. 

The agreement signed by Marrocco was fundamentally different. Marrocco 

himself was named as a party and was identified several times in the agreement as having 

contractual duties to Hill. And, though IDESTA SOLUTIONS, LP, does appear above 

Marrocco’s signature, the name appears to be more an anomaly than an indication that 

Marrocco was acting in a representative capacity. This is the first and only appearance of 

that name in the contract, and whereas the contract at issue in Ladymon explicitly named 

Ladymon as a partner of Metro, there is nothing in the partnership agreement here that 

indicates any relationship whatsoever between Marrocco and iDesta Solutions, LP.3

Thus, despite being named himself as a party and explicitly given responsibilities 

within the agreement, Marrocco contends a single, unexplained appearance of a 

nonexistent company’s name protects him from personal liability. We are unconvinced

and hold that Marrocco signed the agreement in his individual capacity and is thus bound 

by its terms, including the forum-selection clause.

4

 

3 Marrocco argues that the statement preceding his signature shows this relationship: ―[E]ach of 

the parties has executed this Agreement, in the case of the Company by its duly authorized officer . . . .‖ 

That statement is irrelevant, however, because the agreement explicitly defines ―Company‖ as iDesta 

USA—which is not listed on the signature page at all.

4 Even if we were convinced that Marrocco had been representing iDesta Solutions, LP, in 

negotiations with Hill, Marrocco would be unable to escape personal liability. Because there was never a 

company named iDesta Solutions, LP, Marrocco would have been an agent of a nonexistent principal. As 

such, he would be personally liable for any contract he made on behalf of that company. See Carter v. 

Walton, 469 S.W.2d 462, 471 (Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.) (―As a general 

rule, one who contracts as an agent in the name of a nonexistent or fictitious principal, or a principal 

without legal status or existence, renders himself personally liable on the contracts so made.‖) (quoting 3 

Am. Jur. 2d Agency § 295 (1962)); see also Restatement (Third) of Agency § 6.04 (2006) (―Unless the 

third party agrees otherwise, a person who makes a contract with a third party purportedly as an agent on 

behalf of a principal becomes a party to the contract if the purported agent knows or has reason to know 

that the purported principal does not exist or lacks capacity to be a party to a contract.‖).
8

We now turn to Marrocco’s argument that enforcement of the forum-selection 

clause would be unreasonable and unjust. This argument places a heavy burden on 

Marrocco, and he has failed to meet it.

Marrocco argues that it is ―inherently unjust‖ to require a U.K. resident to litigate 

in Texas when he has no contacts to Texas outside the contract at issue. This argument is 

untenable. Personal jurisdiction is a right intended to protect an individual, and an 

individual may bargain away that right. Tri-State, 184 S.W.3d at 248. Marrocco 

bargained away this right by signing the partnership agreement with Hill and consenting 

to the agreement’s forum-selection clause. Thus, enforcing the forum-selection clause 

against Marrocco is neither unreasonable nor unjust.

* * *

For the foregoing reasons, we affirm.

/s/ Jeffrey V. Brown

Justice

Panel consists of Justices Brown, Boyce, and McCally.