Dissenting Opinion Filed August 18, 2020 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00021-CV 

MICHAEL J. PETER, Appellant 

v. 

JOSHUA STERN, Appellee 

On Appeal from the 160th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-18-18146 

DISSENTING OPINION 

Before Chief Justice Burns1

 and Justices Pedersen, III, and Evans 

Dissenting Opinion by Justice Evans 

Appellant Michael J. Peter, a Florida resident, appeals the trial court’s denial 

of his special appearance contesting personal jurisdiction regarding appellee Joshua 

Stern’s claims for fraud and breach of contract pertaining to a failed business venture 

in the Republic of Panama. Stern has no evidence of any intentional contact by Peter 

with Texas or evidence this transaction has any connection to Texas. Although it is 

uncontested Texas has jurisdiction over others connected with Stern’s claims, Texas 

 1

 The Honorable David L. Bridges, Justice, participated in the submission of this case, however, he did 

not participate in the issuance of this opinion due to his death on July 25, 2020. Chief Justice Robert Burns 

has substituted for Justice Bridges and has reviewed the briefs and the record before the Court. 
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does not have jurisdiction over Peter. Because Peter challenges the legal and factual 

sufficiency of the evidence supporting the trial court’s denial of his special 

appearance and because I agree there is no evidence in this record to support the trial 

court’s ruling, I would reverse the trial court’s order and render judgment granting 

Peter’s special appearance. Because the majority concludes otherwise, I respectfully 

dissent. 

We review de novo the trial court’s determination of a special appearance. 

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). Where, 

as here, the trial court did not issue findings of fact and conclusions of law with its 

ruling, we imply all facts that are supported by the evidence to uphold the trial 

court’s determination. Moki Mac, 221 S.W.3d at 574. 

The defendant bears the burden of negating all bases of personal jurisdiction 

alleged by the plaintiff. See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 

658 (Tex. 2010). Once the defendant negates the bases alleged, the plaintiff must 

show, as a matter of law, that the court has personal jurisdiction over the nonresident 

defendant. Alliance Royalties, LLC v. Boothe, 329 S.W.3d 117, 120 (Tex. App.—

Dallas 2010, no pet.); Assurances Generales Banque Nationale v. Dhalla, 282 

S.W.3d 688, 695–96 (Tex. App.—Dallas 2009, no pet.). 

Jurisdiction may be negated on either factual or legal grounds. Kelly, 301 

S.W.3d at 659. One factual ground that may be challenged in the jurisdictional 

inquiry is an agency relationship by which the contacts of an agent are sought to be 
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attributed to the principal. Novamerican Steel, Inc. v. Delta Brands, Inc., 231 

S.W.3d 499, 511 (Tex. App.—Dallas 2007, no pet.); see Davis v. Asano Bussan Co., 

212 F.2d 558, 563–64 (5th Cir. 1954). 

A principal must be shown to control another person’s conduct of business or 

to have delegated to that other person management of some matter for the other to 

be the principal’s agent. See Schott Glas v. Adame, 178 S.W.3d 307, 315 (Tex. 

App.—Houston [14th Dist.] 2005, pet. denied), disapproved of on other grounds by 

PHC–Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 169 (Tex. 2007); 

Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549 (Tex. App.—

Houston [14th Dist.] 2003, no pet.). Courts do not presume an agency relationship 

exists, rather the party asserting an agency relationship exists has the burden of 

proof. See Schott Glas, 178 S.W.3d at 315; Bottle Rock, 108 S.W.3d at 549. 

Discharging the burden of proof requires proving an essential element of the 

principal–agent relationship that the alleged principal had the right to control the 

actions of the alleged agent. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 

1993). To prove the right to control more must be proven than merely the right to 

assign tasks; there must be proof of the right to dictate the means and details of the 

process by which an agent will accomplish the task. See Ross v. Tex. One P’ship, 

796 S.W.2d 206, 210 (Tex. App.—Dallas 1990), writ denied, 806 S.W.2d 222 (Tex. 

1991) (per curiam). If there is proof only of the right to control the end sought to be 

accomplished, but not the means and details of how it should be accomplished, then 
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what has been proven is that the alleged agent is merely employed as an independent 

contractor and not as an agent. Schott Glas, 178 S.W.3d at 315; First Nat’l Bank v. 

Bullock, 584 S.W.2d 548, 551–52 (Tex. App.—Austin 1979, writ ref’d n.r.e.). These 

concepts are distilled in the pattern jury charge as follows: 

An “employee” is a person in the service of another with the 

understanding, express or implied, that such other person has the right 

to direct the details of the work and not merely the result to be 

accomplished. 

Agency and Special Relationships, ¶ 10.1, TEX. PATTERN JURY CHARGE (2018). 

A person is not acting as an employee if he is acting as an “independent 

contractor.” An independent contractor is a person who, in pursuit of 

an independent business, undertakes to do specific work for another 

person, using his own means and methods without submitting himself 

to the control of such other person with respect to the details of the 

work, and who represents the will of such other person only as to the 

result of his work and not as to the means by which it is accomplished. 

Id. at ¶ 10.8. 

In the context of personal jurisdiction, this distinction between agent and 

independent contractor is outcome determinative because only an agent’s contacts 

with the forum are attributable to the principal, not the contacts of an independent 

contractor. See Schott Glas, 178 S.W.3d at 315; Bottle Rock, 108 S.W.3d at 549 n.4 

(citing Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 

55 (1st Cir. 2002)). 

I focus on specific jurisdiction because Stern limited his pleading and 

arguments to specific jurisdiction. We analyze specific jurisdiction on a claim-byclaim basis. See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 
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(Tex. 2013). But when the parties provide no pleading, argument, or analysis 

regarding the claims arising from different forum contacts, we analyze all the claims 

together on the same jurisdictional facts. Id. at 150–51 (“[A] court need not assess 

contacts on a claim-by-claim basis if all claims arise from the same forum 

contacts.”). 

Specific jurisdiction exists only when the nonresident defendant’s alleged 

liability arises out of or is related to his activity conducted within the forum. See 

Moki Mac, 221 S.W.3d at 576. The contacts with the forum that we are to analyze 

for jurisdictional purposes are those where the contacts proximately result from 

actions by the defendant himself that create a substantial connection with the forum 

State. See Moncrief Oil, 414 S.W.3d at 151 (citing Burger King Corp. v. Rudzewicz, 

471 U.S. 462, 473, 475 (1985)). A substantial connection can result from even a 

single act. See id. (citing McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). 

But there must be a substantial connection between those contacts and the operative 

facts of the litigation. See id. at 156 (quoting Moki Mac, 221 S.W.3d at 585). The 

operative facts are those on which the trial will focus to prove the liability of the 

defendant who is challenging jurisdiction. See id. at 156, 157 (citing Moki Mac, 221 

S.W.3d at 585). 

Important to this case is the Texas Supreme Court’s application of these 

principles in Moncrief Oil. There the court declined to exercise specific jurisdiction 

over a foreign company on the tortious interference claims against it. See id. at 156–
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57. The supreme court reasoned that when the alleged communications on which 

liability was based occurred at a meeting in California, even though individuals from 

Texas participated in the meeting and the alleged result of the meeting was the 

decision to breach a contract performable in Texas, those operative facts were not 

substantially connected to Texas for the jurisdictional analysis. Id. 

So, I begin by pointing out Stern’s three trips to Florida—similar to the 

California trip in Moncrief Oil—his conversations in Florida with Peter, Peter’s 

allegedly fraudulent statements in Florida to Stern, and the club in Panama are not 

jurisdictional facts connecting Peter to Texas. See id. 

Stern appears to recognize this because he claims, “Peter carried out his 

scheme through two agents – Edwin (“Eddy”) Maldonado and David Sebag.” Stern 

relies on the following evidence to prove Maldonado and Sebag were agents, as 

opposed to independent contractors, of Peter: 

 Maldonado lived in Texas; 

 Sebag lived on Peter’s yacht in Florida; 

 “Both agents were financially supported by Peter”; 

 “Seeking prospective investors in Texas, Peter told Maldonado that 

Maldonado would be rewarded 5% of any investments he obtained from 

Texas investors”; 

 “Sebag helped carry out the scheme by writing Stern emails”; 
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 “Eventually, Sebag acted as Peter’s bagman by coming to Texas and 

personally collecting cash for Peter's scheme.” 

 Stern alleged Sebag and Peter were in the “Panama Project” or one or more 

related entities and that Sebag’s actions on behalf of the entity were, therefore, 

on behalf of Peter.2

Even if Stern proved all of these matters with competent evidence, which it is 

doubtful he did on this record, none of these amount to evidence that Peter had the 

right to control the means and details of how Maldonado or Sebag should work 

towards the goal sought to be accomplished. See Ross, 796 S.W.2d at 210. What 

Stern’s proof does show is Peter offered 5% compensation for acquiring investors, 

and then Maldonado or Sebag worked to acquire investors. Stern’s proof further 

shows that Peter was involved when Stern visited him in Florida three times and 

there made statements on which Stern predicates his claims. Instead, Stern proved 

at most Maldonado and Sebag were merely employed as independent contractors 

and not as agents. See Schott Glas, 178 S.W.3d at 315; Bullock, 584 S.W.2d at 551–

52. 

 2

 There is a significant dispute between Peter and Stern about different entities and their relationship to 

each of them, Sebag, and the project to develop the club in Panama. We need not resolve these tangential 

matters because even if Sebag acted on behalf of an entity in which Peter owned an interest, Stern still must 

show Peter had the right to control Sebag’s manner and means of his activities for Sebag’s jurisdictional 

contacts to be attributable to Peter. See, e.g., Olympia Capital Assocs., L.P. v. Jackson, 247 S.W.3d 399, 

412–13 (Tex. App.—Dallas 2008, no pet.) (agency not shown, just independent contractor relationship, so 

jurisdictional contacts of independent contractor not attributable to non-resident defendant). 
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Stern was obligated to do more than simply label Maldonado and Sebag as 

Peter’s agents. For Stern to be able to attribute the jurisdictional acts of Maldonado 

or Sebag to Peter, Stern had to prove Peter had the right to control the actions of 

Maldonado or Sebag. See Tidwell, 867 S.W.2d at 21. This required Stern to prove 

more than Peter’s right merely to assign tasks; Stern had to prove Peter had the right 

to dictate the means and details of the process by which Maldonado or Sebag would 

accomplish the task. See Ross, 796 S.W.2d at 210. Instead, Stern proved at most 

Maldonado or Sebag were independent contractors and not agents. Schott Glas, 178 

S.W.3d at 315; Bullock, 584 S.W.2d at 551–52. Stern’s lack of any evidence of the 

critical aspect of agency is outcome determinative because only an agent’s contacts 

with the forum are attributable to the principal, not the contacts of an independent 

contractor. See Schott Glas, 178 S.W.3d at 315; Bottle Rock, 108 S.W.3d at 549 n. 

4. Courts do not presume an agency relationship exists; rather the party asserting an 

agency relationship exists has the burden of proof. See Schott Glas, 178 S.W.3d at 

315; Bottle Rock, 108 S.W.3d at 549. This is longstanding precedent: 

 “Texas law does not presume agency, and the party who alleges it has 

the burden of proving it. . . . Nothing in this record shows that IRA 

Resources even had knowledge, much less control, over Martinez or 

his employer, whose independent actions cannot subject IRA 

Resources to specific jurisdiction in Texas. Griego’s jurisdictional 

argument fails at the most threshold level.” IRA Res., Inc. v. Griego, 

221 S.W.3d 592, 596–97 (Tex. 2007) (citing Buchoz v. Klein, 184 

S.W.2d 271, 271 (1944)); 

 “Seeking to establish the purposeful availment prong of the specific 

jurisdiction inquiry, O’Quinn first contends that personal jurisdiction 
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over World is proper in Texas because a principal-agent relationship 

existed between World and Merit when Merit established recruiting 

offices and performed recruiting services in Texas. According to wellestablished law, a defendant may be found subject to personal 

jurisdiction as a result of the actions of an agent. Davis v. Asano 

Bussan Co., 212 F.2d 558, 563 (5th Cir. 1954); Sher v. Johnson, 911 

F.2d 1357, 1362 (9th Cir. 1990). Under Texas law, in order for a 

principal-agent relationship to be established, the principal must have 

the right to control both the means and the details of the process by 

which the agent accomplishes the actions at issue. First Nat’l Bank of 

Fort Worth v. Bullock, 584 S.W.2d 548, 551-52 (Tex. App.-–Dallas 

1979, writ ref’d n.r.e.). Although the World-Merit contract specifies 

that Merit is to provide the labor and local facilities necessary to 

process applications, World simply does not have contractual authority 

to determine where such facilities are to be located. When Merit 

established its office in Texas City, Merit purposefully availed itself of 

the laws and protections of Texas. However, World did not have

sufficient control over the means or details of Merit’s actions to 

establish an agency relationship.” O’Quinn v. World Indus. 

Constructors, No. 95-40258, 1995 WL 581830, at *2 (5th Cir. Sept. 

19, 1995); 

 “Shareholder status is not ipso facto proof of agency. Instead, the 

‘essential feature’ of agency is the ‘right of control.’ . . . Here, the 

evidence presented by Stocksy shows that it did not have a right to 

control Curette when she photographed Morris, edited the 

photographs, and uploaded them onto her Stocksy profile.” Stocksy 

United v. Morris, 592 S.W.3d 538, 548 (Tex. App.—Houston [1st 

Dist.] 2019, no pet.) (quoting Capital Fin. & Commerce AG v. Sinopec 

Overseas Oil & Gas, Ltd., 260 S.W.3d 67, 85 (Tex. App.—Houston 

[1st Dist.] 2008, no pet.)); 

 “The requirement that Blue Endo keep Trokamed informed of its 

activities and the market conditions of the territory, and that Blue Endo 

advise Trokamed if approval, permits, or consents are lacking, is not 

evidence that Trokamed had an actual right of control over Blue Endo 

sufficient to attribute Blue Endo’s contacts with Texas to Trokamed. 

See Greenfield Energy, Inc. v. Duprey, 252 S.W.3d 721, 733 (Tex. 

App.—Houston [14th Dist.] 2008, no pet.) (concluding that in 

assessing whether one party’s contacts can be imputed upon another, 

critical test focuses on right and/or exercise of control). To the 
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contrary, the distribution agreement reflects the parties’ express 

agreement that Blue Endo would preserve its independent status . . . .” 

Trokamed GmbH v. Vieira, No. 01-17-00485-CV, 2018 WL 2436610, 

at *8 (Tex. App.—Houston [1st Dist.] May 31, 2018, no pet.) (mem. 

op.); 

 “Bluesky alleges that Edge was an agent of 21st Century and Georgas. 

Bluesky provides no support for his position, however . . . . 

Furthermore, the Edge Solutions Marketing Agreement (‘Agreement’) 

between Edge and 21st Century . . . expressly states that Edge is an 

‘independent contractor.’ . . . Indeed, the Agreement displays no 

direction as to when, where, or how Edge was to perform its work for 

21st Century and Georgas, which implies an independent contractor 

relationship.” Blueskygreenland Envtl. Sols., LLC v. Rentar Envtl. 

Sols., Inc., No. 4:11-CV-01745, 2011 WL 5553706, at *5 (S.D. Tex. 

Nov. 14, 2011). 

Requiring Stern to prove Peter’s right to control the manner and details of 

Maldonado and Sebag’s work in order to prove an agency relationship is neither 

trivial nor a mere hyper-technicality. It in fact relates to the foundational structure 

of our United States and determines the negligence liability of employers. 

In the absence of any evidence of agency, the majority opinion authorizes the 

extension of the jurisdictional power of Texas to hale into a Texas court a Floridian 

who never came to Texas and dealt with the Texan when the Texan traveled to 

Florida three times. This violates the Floridian’s due process rights when Texas 

exercises sovereignty over conduct that occurred in Florida. See Burger King Corp. 

v. Rudzewicz, 471 U.S. 462, 472 n.13 (1985) (“Although this protection operates to 

restrict state power, it must be seen as ultimately a function of the individual liberty 

interest preserved by the Due Process Clause rather than as a function of federalism 
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concerns.”) (internal quotation deleted). And even if Peter structured his effort to 

raise investment funds in the Panama club by using independent contractors to avoid 

jurisdiction outside of Florida, he is allowed to do so thereby conforming his conduct 

to the rule of law. A nonresident is entitled to rely on the constitutional limit of 

Texas’s personal jurisdiction imposed by the requirement that the nonresident must 

purposefully avail himself of the benefits of Texas law and structure his transactions 

so as to not profit from Texas’s laws nor subject himself to Texas’s jurisdiction. See 

Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005) 

(“[A] nonresident may purposefully avoid a particular jurisdiction by structuring its 

transactions so as neither to profit from the forum’s laws nor be subject to its 

jurisdiction.” (citing Burger King, 471 U.S. at 463)). There is nothing sinister about 

doing so just as when individuals and businesses structure their conduct to minimize 

or avoid tax liability. See Ratzlaf v. United States, 510 U.S. 135, 145–46 (1994) 

(absent anti-structuring law such as money-laundering statute, “Courts have noted 

many occasions on which persons, without violating any law, may structure 

transactions in order to avoid the impact of some regulation or tax.” (internal 

quotation deleted), providing example regarding Stamp Act of 1862 and citing 

United States v. Isham, 84 U.S. (17 Wall.) 496, 506 (1873)). This is, in fact, the 

purpose of the rule of law, to enable everyone to conform their conduct to the law 

with the expectation the law will be upheld in court. So, when a court decides the 

reach of one state’s jurisdictional power crosses state boundaries to govern conduct 
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that occurred in another state it should only do so carefully, in compliance with the 

constitutional constraints, and when supported by the facts in the record, which are 

lacking here. 

Additionally, failing to require proof of the right to control the manner and 

details of how work is accomplished in order to prove agency will result in holding 

principals liable for the negligence of the independent contractors they hire. There 

is a reason the pattern jury charge places the jury submissions of agency and 

independent contractor—both quoted above—among the general negligence 

sections. See Agency and Special Relationships, ¶¶ 10.1, 10.8, TEX. PATTERN JURY 

CHARGE (2018). That is because the issue arises frequently in the context of 

negligence cases. And just as in the jurisdictional context where the absence of 

evidence of the right to control the manner and details of how work is done can be 

dispositive, the difference between agency and independent contractor status is 

liability determinative in negligence cases. That is, if the tortfeasor is the agent of a 

principal, the principal is liable for the negligence of the agent; but if the tortfeasor 

is an independent contractor, the putative principal is not liable for his negligence. 

As this Court summarized, 

Under the doctrine of respondeat superior, an employer is vicariously 

liable for the negligence of an agent or employee acting within the 

scope of his or her agency or employment, although the principal or 

employer has not personally committed a wrong. Baptist Mem’l Hosp. 

Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998); DeWitt v. Harris 

County, 904 S.W.2d 650, 654 (Tex. 1995). The justification for 

imposing such liability is that the principal or employer has the right 
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to control the means and methods of the agent or employee’s work. 

Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947; see Newspapers, Inc. v. 

Love, 380 S.W.2d 582, 585–86 (Tex. 1964). In contrast, an individual 

or entity that hires an independent contractor is generally not

vicariously liable for the tortious acts or negligence of that person 

because the independent contractor has sole control over the means and 

methods of the work to be accomplished. See Baptist Mem’l Hosp. Sys., 

969 S.W.2d at 947; Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex. 

1990); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). 

Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex. App.—Dallas 

2000, no pet.) (emphasis added). So, if we water down the requirement that there 

be proof that Peter had the right to control the means and details of how Maldonado 

or Sebag should accomplish their goal of acquiring investors to nothing more than 

Peter had the right to control the goal or end sought to be accomplished, that results 

in making principals liable for the negligent acts of the independent contractors they 

hire. This is not some hyper-technical requirement; it’s the whole basis for a 

principal’s respondeat superior liability for the negligent acts of his agent: because 

the principal has the right to control how an agent performs the manner and details 

of the work and should exercise that right to control in a reasonably prudent manner 

towards others. See id. (citing Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947 and 

Love, 380 S.W.2d at 585–86). Reducing proof of agency to nothing more than 

independent contractor status, as the majority does, results in a massive expansion 

of liability for every individual (here, Peter) and every business alleged to be the 

principal when its independent contractor is alleged to be its agent. 
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On this record, I conclude Stern failed to bring forward any evidence Peter 

had the right to control the manner and details of how Maldonado and Sebag were 

to go about their work to acquire investors. We should not assume an agency 

relationship by which Maldonado and Sebag’s jurisdictional conduct (and their 

negligent conduct, too, if any) are imputed to Peter. On this record, we should not 

denigrate Peter’s due process rights by aggrandizing the jurisdictional power of 

Texas, we should not expand the liability of every alleged principal in negligence 

cases beyond the common law respondeat superior liability for agents, and we 

should reverse the trial court’s order and render judgment granting Peter’s special 

appearance. Because the majority opinion concludes otherwise, I respectfully 

dissent.

200021DF.P05 

/David Evans/ 

DAVID EVANS 

JUSTICE