Reversed and Remanded and Opinion Filed September 15, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00770-CV
TTS, LLC, Appellant V. EVENFLOW, LLC, DAN MANSELLE, AND TRINITY LOGISTICS, INC., Appellees
On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-05512-2021
MEMORANDUM OPINION Before Justices Carlyle, Goldstein, and Kennedy Opinion by Justice Goldstein TTS, LLC, brings this interlocutory appeal of the trial court’s order sustaining
the amended special appearance filed by Trinity Logistics, Inc., and dismissing the
claims against it. In two issues, TTS argues the trial court erred in concluding it
lacked personal jurisdiction over Trinity and dismissing TTS’ claims against Trinity
including claims for violations of the Texas Uniform Trade Secrets Act (TUTSA).
We reverse the trial court’s order sustaining Trinity’s amended special appearance
and remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND1
TTS, a Delaware limited liability company, based in Frisco, Texas, is a self-
described third-party transportation and logistics company that provides and
manages motor carrier brokerage services and a broad range of transportation
services. Dan Manselle is a Florida resident doing business as Evenflow, L.L.C., a
Florida limited liability company. Trinity Logistics, Inc., is a Delaware corporation
and a direct competitor with TTS.
Customers retain TTS to find the optimal method of transportation, and TTS
utilizes independent contractors like Evenflow, who then use TTS’ confidential and
proprietary information to formulate bids and logistics solutions. On June 30, 2018,
TTS and Evenflow, through its sole owner and sole employee, Manselle, entered
into a sales agent agreement. Under the agreement, Evenflow was appointed as a
non-exclusive independent agent to market, sell and provide TTS services, for an
initial five-year term. The agreement specified that:
[t]he parties hereby irrevocably and unconditionally submits [sic] to the exclusive jurisdiction of any state or federal court sitting in Collin County, Texas, over any action, suit or proceeding arising out of or relating to this Agreement. . . . . [Evenflow] acknowledges and agrees that its performance under this Agreement is due and owing to [TTS] in Collin County, Texas, and that a substantial portion of the duties and obligations of the parties are to be performed in Collin County, Texas.
1 The facts are derived from TTS’ October 2021 Original Petition, the parties’ motions, responses, replies and the evidentiary exhibits attached thereto.
–2– On October 6, 2021, TTS filed its original petition asserting claims for
declaratory judgment, breach of contract2 against Evenflow and Manselle, tortious
interference with an existing contract against Trinity, and violations of the Texas
Uniform Trade Secrets Act against all defendants.
Trinity and Manselle filed special appearances. After an initial hearing, the
trial court ordered jurisdictional discovery.3 Trinity filed an amended special
appearance, to which TTS filed its supplemental response with attached
jurisdictional exhibits, and Trinity replied. The trial court held a second hearing on
Trinity’s special appearance and issued an order sustaining Trinity’s amended
special appearance. This interlocutory appeal followed.
PLEADED BASES OF TEXAS JURISDICTION OVER TRINITY
TTS argues that the trial court has both general and specific personal
jurisdiction over Trinity. The original petition alleges specific jurisdiction under the
Texas long-arm statute, averring Trinity tortiously interfered with the contract
between TTS and Evenflow, which contract was to be substantially performed in
Texas, and that Trinity recruits Texas residents for employment inside and outside
of Texas. TTS alleges general jurisdiction over Trinity because Trinity has
2 TTS alleges three separate counts of breach of contract relative to non-compete obligations, non- solicitation obligations, and as to the affirmative obligation to use best commercial reasonable efforts to market and sell TTS services and to not use TTS’ confidential and proprietary information on behalf of a competitor or to divert business away from TTS. 3 Evenflow did not challenge jurisdiction. The trial court overruled Manselle’s special appearance without prejudice to re-urge, and that order is not part of this appeal. –3– purposefully availed itself of the privileges and benefits of conducting business in
Texas, is registered with the Texas Secretary of State to conduct business in Texas,
and has operated one of its seven regional service centers in Euless, Texas, since
2008, with Texas employees, maintaining continuous and systematic contacts with
Texas.
The petition4 alleged that, around January 2020, a Trinity logistics agent
recruiter began soliciting Evenflow and Manselle to serve as a sales agent for Trinity.
Evenflow, acting through its owner Manselle took and utilized TTS’ confidential
and proprietary information, and the same was acquired by Trinity through
recruitment and employment of Evenflow and Manselle. Manselle, for and on behalf
of Evenflow, signed an independent contractor agency agreement with Trinity to act
in the same sales role for Trinity as it was still contracted to perform for TTS.
Evenflow, acting through its owner Manselle, worked for Trinity, “TTS’s direct
competitor, while contemporaneously working for TTS for two months [September
29-November 25, 2020] before informing TTS” and ultimately terminating the
agreement on November 25, 2020. As part of Trinity’s recruitment process,
Manselle identified ten customers to be vetted, two of which were Texas-based
4 In support of its allegations, the petition had 13 exhibits attached including the agreement at issue, correspondence, email communications, and a record of Manselle and Evenflow’s sales for Trinity in October and November of 2020. –4– customers, along with TTS’s confidential customer information and confidential
credit arrangements.
STANDARD OF REVIEW
Whether a trial court has personal jurisdiction over a nonresident defendant is
a question of law that appellate courts review de novo. See, e.g., Old Republic Nat’l
Title Ins. Co. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018); Steward Health Care System,
LLC v. Saidara, 633 S.W.3d 120, 125 (Tex. App.—Dallas, 2021, no pet.). When a
trial court does not issue findings of fact and conclusions of law with its special
appearance ruling, all facts necessary to support the judgment and supported by the
evidence are implied. Old Republic, 549 S.W.3d at 558; Saidara, 633 S.W.3d at
125. When the appellate record includes the reporter’s and clerk’s records, these
implied findings are not conclusive and may be challenged for legal and factual
sufficiency in the appropriate appellate court. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Saidara , 633 S.W.3d at 125-26. When
the relevant facts in a case are undisputed, an appellate court need not consider any
implied findings of fact and considers only the legal question of whether the
undisputed facts establish Texas jurisdiction. Old Republic, 549 S.W.3d at 558.
The plaintiff bears the initial burden of pleading sufficient facts to bring a
nonresident defendant within the reach of the Texas long-arm statute. See Kelly v.
Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). If the plaintiff pleads
sufficient jurisdictional facts, the defendant bears the burden to negate all alleged
–5– bases of personal jurisdiction. Id. Alternatively, the defendant can prevail by
showing that even if the plaintiff’s allegations are true, the evidence is legally
insufficient to establish that personal jurisdiction over the defendant is proper. See
id. at 659.
Although the trial judge acts as the factfinder and must resolve any factual
disputes in the special-appearance evidence, the judge must accept as true any clear,
direct, and positive evidence presented in an undisputed affidavit. Forever Living
Prods. Int’l, LLC v. AV Eur. GmbH, 638 S.W.3d 719, 723 (Tex. App.—Dallas 2021,
no pet.); see also Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009)
(discussing circumstances under which evidence must be taken as true as a matter of
law).
TRINITY’S SPECIAL APPEARANCE
Trinity filed a special appearance asserting that it is a Delaware corporation
with its principal place of business in Delaware; its Euless office “coordinates freight
transportation in the region, not just in Texas”; the Euless office generates less than
five percent of Trinity’s revenue; and TTS did not contend that its claim arose from
or related to activity in Trinity’s Euless office. Attached to the special appearance
was the affidavit of Greg Massey, vice president of agent development for Trinity.
In addition to confirming that Trinity is incorporated in Delaware, has its principal
place of business in Delaware, and operates a regional service center in Euless,
–6– Texas, Massey’s affidavit stated that the Euless service center has a manager and
thirty-three employees and is “Trinity’s only office in Texas.”
In November 2021, TTS filed a response to Trinity’s special appearance
asserting that, since 2005, “Trinity has had a registered agent for service, been
registered to do business, and has been ‘doing business’ and commencing lawsuits
in Texas.” TTS alleged Trinity’s Texas regional service center is used as one of
Trinity’s “home bases” from which thirty-four employees solicit and conduct
business with customers and transportation providers not only in Texas, but
nationwide.
At the conclusion of the initial hearing, the trial court permitted jurisdictional
discovery, after which Trinity filed an amended special appearance, TTS
supplemented its response, and Trinty replied. Attached to the supplemental
response were exhibits in support of TTS’ assertions that Trinity leases property and
pays personal property taxes in Texas, has substantial business activity in Texas,
uses Texas as the origin state for shipping, and has “availed itself of the Texas courts
as a plaintiff in suits against third parties” relative to business it conducts in Texas.
In May 2022, Trinity filed an amended special appearance asserting that no
case-related act of Trinity occurred in Texas and that “this is not a case about
recruiting a Texas employee; it’s a case about recruiting an independent contractor
based in Florida.” TTS filed a supplemental response in which it argued Trinity is
subject to specific jurisdiction in Texas because it directed its tortious conduct at
–7– Texas with the intent of creating recurring contacts with Texas in the form of
recurring Texas-based business involving both Texas-based customers and Texas-
based shipments that Evenflow would, and did, solicit away from TTS and to Trinity.
TTS alleged that, in fact, Trinity’s tortious conduct did result in Trinity obtaining
recurring Texas business “to the tune of $475,000 in the 12 month period between
Trinity’s tortious conduct and the commencement of this lawsuit.”
Evenflow and Manselle’s agreement with TTS provided that exclusive
jurisdiction was set, and a substantial portion of the parties’ duties and obligations
were to be performed, in Collin County, Texas. TTS alleged that, in successfully
recruiting Evenflow and Manselle to breach the agreement with TTS, “Trinity
intentionally and tortiously poached hundreds-of-thousands of dollars of annual
shipments that [sic] customers Evenflow serviced for TTS, much of which originated
or terminated in Texas, and knowingly benefitted from Evenflow’s and Manselle’s
theft of TTS’s confidential and proprietary trade secrets, to the detriment of TTS, its
Texas competitor.” TTS supplemented its response with evidence of two Texas
customers that Evenflow took from TTS to Trinity.
TTS averred that Trinity actively recruits and solicits Texas residents to
become its employees and agents, and Trinity’s successful recruitment of Evenflow
and Manselle to serve as a Trinity sales agent underlies this case, as such recruitment
tortiously interfered with TTS’s contract with Evenflow, resulting in harm to TTS,
a Texas-based company. Thus, TTS alleged, “Trinity’s continuous and systematic
–8– contacts with Texas ‘relate to’ TTS’s claims, which is sufficient to establish specific
jurisdiction.” Since TTS’ injuries “arise out of or relate to” Trinity’s Texas
substantial continuous and systematic activities, TTS argued, holding Trinity subject
to specific jurisdiction in Texas in this case comports with due process.
TTS further asserted that holding Trinity subject to either general or specific
jurisdiction in Texas would not offend the notions of fair play and substantial justice
because Evenflow and Manselle had already submitted to jurisdiction in Texas for
this case, and it would be no more burdensome on Trinity to have witnesses travel
to Texas than it would be for them to travel to another state like Florida. Finally,
TTS argued that considerations of convenience and efficiency weighed heavily in
favor of subjecting Trinity to jurisdiction in this case because, at a minimum, TTS
will litigate this case against Evenflow and Manselle in Texas, and it would be
grossly inefficient to require TTS and Evenflow and Manselle to relitigate the same
case a second time in another forum.
ANALYSIS
Because it is dispositive of this appeal, we first address TTS’ argument that
the trial court erred in concluding it lacked personal jurisdiction over Trinity and
dismissing TTS’ claims against Trinity because Trinity is subject to specific personal
jurisdiction.
Texas Rule of Civil Procedure 120a(3) states, “The court shall determine the
special appearance on the basis of the pleadings, any stipulations made by and
–9– between the parties, such affidavits and attachments as may be filed by the parties,
the results of discovery processes, and any oral testimony.” TEX. R. CIV. P. 120a(3).
The text of a response to a special appearance (as opposed to evidentiary attachments
to a response) does not fall into any of these categories; it is not a pleading. See
TEX. R. CIV. P. 45 (“Pleadings in the district and county courts shall (a) be by
petition and answer”); Saidara, 633 S.W.3d at 127-128.
“Texas courts may assert in personam jurisdiction over a nonresident if (1)
the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the
exercise of jurisdiction is consistent with federal and state constitutional due-process
guarantees.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007). The Texas long-arm statute provides:
In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident: (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; (2) commits a tort in whole or in part in this state; or (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.
TEX. CIV. PRAC. & REM. CODE § 17.042.
The Texas long-arm statute’s broad doing-business language “allows the
statute to reach as far as the federal constitutional requirements of due process will
allow.” Moki Mac, 221 S.W.3d at 575. Therefore, we only analyze whether
Trinity’s acts would bring Trinity within Texas’ jurisdiction consistent with
constitutional due process requirements. Id.
–10– Under constitutional due-process analysis, personal jurisdiction is achieved
when (1) the nonresident defendant has established minimum contacts with the
forum state, and (2) the assertion of jurisdiction complies with “traditional notions
of fair play and substantial justice.” Id. (quoting Int’l Shoe Co. v Washington, 326
U.S. 310, 316 (1945)). We focus on Trinity’s activities and expectations when
deciding whether it is proper to call Trinity before a Texas court. Int’l Shoe Co., 326
U.S. at 316.
A defendant establishes minimum contacts with a state when it “purposefully
avails itself of the privilege of conducting activities within the forum state, thus
invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235,
253 (1958) (citing Int’l Shoe Co., 326 U.S. at 319). “The defendant’s activities,
whether they consist of direct acts within Texas or conduct outside Texas, must
justify a conclusion that the defendant could reasonably anticipate being called into
a Texas court.” Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806
(Tex. 2002) (citing World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980)). A nonresident’s contacts can give rise to either specific or general
jurisdiction. Id.
Courts have recognized two types of personal jurisdiction: “general”
jurisdiction and “specific” jurisdiction. See Bristol-Myers Squibb Co. v. Superior
Ct. of Cal., 582 U.S. 255, 262 (2017). For an individual, the paradigm forum for the
exercise of general jurisdiction is the individual’s domicile; for a corporation, it is
–11– an equivalent place, one in which the corporation is fairly regarded as at home. See
id. A court with general jurisdiction may hear any claim against that defendant, even
if all the incidents underlying the claim occurred in a different State. See id. But
“only a limited set of affiliations with a forum will render a defendant amenable to”
general jurisdiction in that State. See id.
Specific jurisdiction exists when (1) the defendant has “made minimum
contacts with Texas by purposefully availing itself of the privilege of conducting
activities [in the state],” and (2) the defendant’s potential liability arose from or is
related to those contacts. In re Christianson Air Conditioning & Plumbing, LLC,
639 S.W.3d 671, 679 (Tex. 2022) (orig. proceeding) (quoting Moki Mac, 221 S.W.3d
at 576). To show purposeful availment, a plaintiff must prove that a nonresident
defendant seeks a benefit, advantage, or profit from the forum market. See Michiana
Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005)). Only the
defendant’s contacts are relevant, not the unilateral activity of another party or third
person. See id. And those contacts “must be purposeful rather than random,
fortuitous, or attenuated.” Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d
142, 151 (Tex. 2013) (quoting Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333, 338–39 (Tex. 2009)).
The plaintiff bears the initial burden of pleading sufficient allegations to bring
a nonresident defendant within the provisions of the Texas long-arm statute.
Saidara, 633 S.W.3d at 126 (citing Old Republic, 549 S.W.3d at 559; Moncrief Oil,
–12– 414 S.W.3d at 149). In order to meet its burden, a plaintiff must show the act on
which jurisdiction is predicated, not a prima facie demonstration of the existence of
a cause of action. Bruno’s Inc. v. Arty Imports, Inc., 119 S.W.3d 893, 896–97 (Tex.
App.—Dallas 2003, no pet.). This minimal pleading requirement is satisfied by an
allegation that the nonresident defendant is doing business in Texas or committed
tortious acts in Texas. Saidara, 633 S.W.3d at 126. If the plaintiff does not meet
this burden, the defendant need only prove that it does not reside in Texas to negate
jurisdiction. Kelly, 301 S.W.3d at 658–59; see Siskind v. Villa Found. for Educ.,
Inc., 642 S.W.2d 434, 438 (Tex. 1982).
Trinity’s contacts with Texas were purposeful, not random, fortuitous or
attenuated. Trinity is registered with the Texas Secretary of State and operates a
regional service center in Euless, Texas, which employs a manager and thirty-three
employees. The record reflects Trinity recruited and employed Evenflow and
Manselle while both were still working for TTS, and during such time Manselle
disclosed to Trinity TTS’ confidential business information related to Texas
customers and interfered with TTS’ business in Texas. Trinity’s regional service
center in Texas permitted Trinity to capitalize on confidential and proprietary
information concerning TTS’ customers and business operations in Texas. In fact,
in the twelve months following Trinity’s appropriation of TTS’ confidential business
information, Trinity earned approximately $475,000 in recurring Texas-based
business.
–13– The foregoing also reflects that Trinity has sought a “benefit, advantage or
profit in Texas.” Michiana, 168 S.W.3d at 785. As previously stated, Trinity earned
approximately $475,000 in recurring Texas-based business alleged to have been
derived from Trinity’s appropriation of TTS’ confidential business information.
Finally, we conclude that there is a substantial connection between Trinity’s
contacts and the operative facts of this litigation based upon TTS’ claims. TTS
alleges Trinity tortiously interfered with its sales agent contract with Evenflow and
Manselle, a contract that provided that performance and a substantial portion of the
duties and obligations, such as non-compete and non-solicitation, occurred in Texas.
Due to the tortious interference, Trinity acquired confidential and proprietary
information, as well as two Texas-based customers, subjecting it to potential liability
under TUTSA. Based upon the record before us, Trinity’s contacts are sufficient to
demonstrate that the alleged tort occurred at least in part in Texas.
On this record, we conclude Trinity has made minimum contacts with Texas
by purposefully availing itself of the privilege of conducting activities in Texas and
seeking a benefit, advantage, or profit from the Texas market to support specific
jurisdiction. See In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d
at 679; Michiana, 168 S.W.3d at 785. Moreover, we conclude Trinity’s potential
liability arose from or is related to those contacts. In re Christianson Air
Conditioning & Plumbing, LLC, 639 S.W.3d at 679. Thus, TTS met its burden of
pleading sufficient allegations to bring Trinity within the provisions of the Texas
–14– long-arm statute and establish specific jurisdiction. See id.; Saidara, 633 S.W.3d at
126.
The asserted jurisdiction also comports with “traditional notions of fair play
and substantial justice.” Moki Mac, 221 S.W.3d at 575. The record reflects that
Trinity has a regional office in Texas and availed itself of the Texas judicial system
for its own purposes, such that the burden on Trinity is minimal. The base operative
facts are contractually in Texas, giving Texas an interest in adjudicating the dispute,
as well as forming the bases of the parties’ interest in obtaining an efficient,
convenient, and effective resolution of the controversy. We conclude the assertion
of jurisdiction over Trinity does not offend notions of fair play and substantial
justice.
We sustain TTS’ first issue to the extent we agree that the trial court erred in
concluding it lacked specific personal jurisdiction over Trinity and dismissing TTS’
claims against Trinity. Because of our disposition of this issue, we need not further
address TTS’ issues.
–15– CONCLUSION
We reverse the trial court’s order granting Trinity’s special appearance and
dismissing TTS’ claims against Trinity and remand for further proceedings
consistent with this opinion.
/Bonnie Lee Goldstein// 220770f.p05 BONNIE LEE GOLDSTEIN JUSTICE
–16– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TTS, LLC, Appellant On Appeal from the 429th Judicial District Court, Collin County, Texas No. 05-22-00770-CV V. Trial Court Cause No. 429-05512- 2021. EVENFLOW, LLC, DAN Opinion delivered by Justice MANSELLE, AND TRINITY Goldstein. Justices Carlyle and LOGISTICS, INC., Appellees Kennedy participating.
In accordance with this Court’s opinion of this date, the trial court’s order sustaining Trinity Logistics, Inc.’s amended special appearance is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant TTS, LLC recover its costs of this appeal from appellees EVENFLOW, LLC, DAN MANSELLE, AND TRINITY LOGISTICS, INC.
Judgment entered this 15th day of September, 2023.
–17–