
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00439-CV


Ronald A. Brumback, R. John Fletcher, Steve Benson, Susan Sundell, John T. Manaras,
and McGuinness & Manaras LLP n/k/a Anderson, Gorecki & Manaras LLP, Appellants

v.

Charles Paul Steele, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-08-000868, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING


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

		Appellants Ronald A. Brumback, R. John Fletcher, Steve Benson, Susan Sundell,
John T. Manaras, and McGuinness & Manaras LLP (now known as Anderson, Gorecki & Manaras
LLP) appeal the district court's order denying their special appearances.  In 2004, appellee
Charles Paul Steele, while providing independent contractor services in Texas to CertaLogic Inc.
(formerly known as 4DataLink Inc.), agreed to a deferred compensation plan that would transform
those amounts of compensation for his services that CertaLogic had been unable to pay into benefits
under the plan.  After CertaLogic terminated his services in 2005, and not having received any
payment under the deferred compensation plan, Steele filed suit against CertaLogic and appellants,
asserting various causes of action relating to the terms of the plan as well as the circumstances
surrounding CertaLogic's offering and Steele's acceptance of the plan.
		Appellants filed special appearances, challenging the district court's
personal jurisdiction over them.  Each appellant is a nonresident of Texas.  Brumback, Fletcher,
and Benson were directors of CertaLogic when the deferred compensation plan was approved by
the board of directors, offered to Steele in Texas, and agreed to by Steele in Texas.  We affirm the
district court's denial of Brumback's, Fletcher's, and Benson's special appearances.  Sundell and
Manaras are officers of CertaLogic, but did not become officers until after Steele's agreement to
the Plan.  Also prior to becoming an officer, Manaras and his law firm provided legal services
to CertaLogic with regard to the termination of Steele's services as independent contractor.  We
reverse the district court's denial of Sundell's, Manaras's, and McGuinness & Manaras's
special appearances, and render judgment dismissing the case against them for lack of
personal jurisdiction.
Factual and Procedural Background
		Steele began providing services on an independent contractor basis to 4DataLink Inc.
("4DL") in the spring or summer of 2002.  4DL offered "an operations data management and
data integration software platform and a family of operations management software applications
for physical-network-based businesses" providing "electric utility and cable/broadband" services. 
During the entire time Steele was providing services to 4DL, the company experienced financial
difficulties.  As a result, Steele did not receive the full amounts of his agreed monthly compensation.
		On April 3, 2004, 4DL provided Steele with a letter--signed by Brumback, 4DL's
chief executive officer--which set out the terms of, and offered Steele participation in, a "Deferred
Compensation Plan" (hereinafter, the "Plan").  According to the letter, the difference between the
amount previously discussed as Steele's "eventual cash compensation" and the amount that had
actually been received for prior months would be "treated as deferred compensation."  Payment of
such deferred compensation by the Plan would be at the discretion of 4DL's board of directors and
contingent on the company's financial performance.  The obligation was unfunded and unsecured. 
Steele's right to receive the deferred compensation would not cease upon the termination of his
independent contractor or employee relationship with 4DL.  The letter also provided for a future
grant of 4DL stock:
As additional recognition of your dedication during this start-up period, 4DL will set
aside for the benefit of everyone receiving this letter a total of one percent of the
currently contemplated fully diluted shares of the company as fully vested shares of
4DL common stock. . . .  The grant of fully vested shares described in this paragraph
. . . will more than likely be made within three months from the date of this letter.
Steele signed the letter on June 1, 2004, below the phrase "I accept the terms and conditions of
the Deferred Compensation Plan as described in this letter."
		In May 2005, Steele received a letter from Brumback confirming the conclusion
of Steele's independent contractor arrangement with 4DL as of May 31, 2005 (hereinafter,
the "Termination Letter").  Under the terms of the Termination Letter, Steele would receive a
"final check" of $2,500 following his provision to Brumback of any 4DL business information held
by Steele.  The letter also referenced the Plan:
In addition, 4DL will send you a statement confirming the amount of deferred
compensation that 4DL owes you at such time as that amount is paid per the terms
of the 4DL Deferred Compensation Plan dated April 3, 2004 and subsequently
executed by you.  If you wish to retain the 4DL computer you are using, please so
indicate when you return this document, and 4DL will deduct its depreciated value
($839.64) from the current balance of your deferred compensation and send you a
statement reflecting the amended balance.  The amount covering your entire period
as an independent contractor with 4DL is $150,833.32.
Steele signed the letter on May 11, 2005, below the phrase "I confirm my agreement with the
foregoing understandings."  To date, Steele has received no stock or compensation under the Plan,
and has received no further compensation from 4DL following the final $2,500 payment referenced
in the Termination Letter.
		On March 13, 2008, Steele filed suit against 4DL, which was now named
CertaLogic, Inc. (the corporate name change occurred in early 2006).  Steele alleges claims under
the Texas Securities Act that CertaLogic made an unlawful sale of unregistered securities,
see generally Tex. Rev. Civ. Stat. Ann. art. 581-7 (West Supp. 2009), and made an untrue statement
of material fact when offering or selling a security, see generally id. art. 581-33 (West Supp. 2009). 
Steele also asserts claims for breach of contract, quantum meruit, common law fraud, statutory fraud,
fraudulent nondisclosure, breach of fiduciary duty, negligent misrepresentation, negligence per se,
and intentional infliction of emotional distress.  All of Steele's claims center on the terms of the
Plan, the representations or omissions that induced Steele to agree to the terms of the Plan, or
CertaLogic's alleged failure to pay compensation in accordance with--or notwithstanding--the
terms of the Plan.
		Appellants--none of whom are residents of Texas--are also named as defendants in
Steele's lawsuit.  Appellants Brumback, Fletcher, Benson, Sundell, and Manaras are former or
current officers or directors of CertaLogic.  In addition, prior to Manaras's becoming an officer in
2006, appellants Manaras and his law firm McGuinness & Manaras (hereinafter, the "Manaras Law
Firm") had provided legal services to CertaLogic in connection with the Termination Letter. 
Appellants filed special appearances, alleging that their contacts with Texas are insufficient to
subject them to personal jurisdiction by the district court.  See Tex. R. Civ. P. 120a.  On July 6, 2009,
the district court denied appellants' special appearances.  Appellants appeal.  See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(7) (West 2008) (permissible interlocutory appeal).
Personal Jurisdiction
		We review the district court's determination of whether Texas can assert
personal jurisdiction over nonresident defendants de novo.  Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569, 574 (Tex. 2007).  When, as here, the trial court does not issue findings of fact and
conclusions of law in support of its special appearance ruling, we infer all facts necessary to support
the judgment and supported by the evidence.  BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d
789, 795 (Tex. 2002).  The plaintiff bears the initial burden of pleading sufficient allegations to
invoke jurisdiction under the Texas long-arm statute, and the nonresident defendants then assume
the burden of negating all bases of jurisdiction in those allegations.  Moki Mac, 221 S.W.3d at 574.
		Texas's long-arm jurisdiction statute governs Texas courts' exercise of jurisdiction
over nonresident defendants.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041-.045 (West 2008)
(suit on business transaction or tort).  The statute's "broad doing-business language" extends
Texas courts' personal jurisdiction as far as the federal constitutional requirements of due process
will allow.  See Moki Mac, 221 S.W.3d at 575.  Therefore, the requirements of Texas's long-arm
jurisdiction statute are satisfied if the assertion of jurisdiction accords with federal due process
limitations.  Id.
		Personal jurisdiction is proper, based on federal due process requirements, when
(1) the nonresident defendant has established minimum contacts with the forum state, and (2) the
exercise of jurisdiction comports with traditional notions of fair play and substantial justice.  Id.
(citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).  Minimum contacts are
sufficient for personal jurisdiction when the nonresident defendant "purposefully avails" himself
of the privilege of conducting activities within the forum state, thus invoking the benefits and
protections of its laws.  Id. (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)).  There are
three parts to the "purposeful availment" inquiry:
First, only the defendant's contacts with the forum are relevant, not the unilateral
activity of another party or a third person.  Second, the contacts relied upon must be
purposeful rather than random, fortuitous, or attenuated. . . .  Finally, the defendant
must seek some benefit, advantage or profit by "availing" itself of the jurisdiction.
Id. (citations and quotations omitted).
		A nonresident defendant's contacts with a forum state may give rise to two types of
personal jurisdiction.  See BMC Software, 83 S.W.3d at 795-96.  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 796.  General jurisdiction is established if the defendant has made continuous
and systematic contacts with the forum, whether or not the defendant's alleged liability arises from
or relates to those contacts.  See id.  General jurisdiction requires a showing that the defendant
conducted substantial activities in the forum state, a minimum contacts analysis that is more
demanding than for specific jurisdiction.  Guardian Royal Exch. Assurance, Ltd. v. English China
Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991).
		If a court determines that a nonresident defendant's contacts with the forum
are sufficient to subject the defendant to the forum's jurisdiction--whether based on general or
specific jurisdiction--the court must also consider whether the assertion of jurisdiction comports
with fair play and substantial justice.  See id.  The defendant must present a compelling case when
his contacts with the forum state are the basis of jurisdiction, as it will be a rare case in which the
exercise of jurisdiction does not comport with fair play and substantial justice when the nonresident
defendant has purposefully established minimum contacts with the forum state.  Id. at 231 (citing
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)).
Defendants Brumback, Fletcher, and Benson
		First, we consider the special appearances by Brumback, Fletcher, and Benson.  We
begin with specific jurisdiction.  For a nonresident defendant's contacts with Texas to support an
exercise of specific jurisdiction, there must be a substantial connection between those contacts
and the operative facts of the litigation.  See Moki Mac, 221 S.W.3d at 584-85.  The operative facts
of the litigation, here, particularly involve the terms of the Plan and the representations or omissions
made to Steele regarding the Plan.  Brumback, Fletcher, and Benson were each alleged to be
involved with the offering of the Plan to Steele.

		Brumback, Fletcher, and Benson were directors of CertaLogic when Steele was
offered participation in the Plan, as well as during the entire time period during which Steele
worked as an independent contractor.  The board of directors approved the Plan. (1)  Brumback was
chief executive officer of CertaLogic, Benson was the executive vice president, and Fletcher was
the chairman of the board of directors.  Although corporate decisions were made in Massachusetts,
CertaLogic's headquarters was in Richardson, Texas during the relevant time period.  That address
is on the heading of the April 2004 letter to Steele describing the terms of the Plan.  The Plan was
prepared with assistance from a law firm's Dallas, Texas office.  Moreover, Steele worked in Texas,
was provided the Plan-related documents at his Texas residence, and agreed to the Plan in Texas. 
Brumback personally signed and sent the Plan-related documents to Steele, and Fletcher admitted
that "Brumback was properly authorized by the Board of Directors of CertaLogic to furnish the
[Plan] to Steele for his approval and execution."
		Brumback, Fletcher, and Benson generally exercised control over the operations
of CertaLogic, and they specifically participated in and approved the offering to Steele of the Plan. 
They knew Steele resided and was located in Texas when he received the Plan-related documents
and agreed to the terms of the Plan.  We conclude that appellants Brumback, Fletcher, and Benson
purposefully established minimum contacts with Texas in accordance with a specific jurisdiction
analysis.  See Hagerty Partners P'ship v. Livingston, 128 S.W.3d 416, 421 (Tex. App.--Dallas
2004, pet. denied).
		Having concluded that Brumback, Fletcher, and Benson had sufficient contacts
with Texas to satisfy the "minimum contacts" requirement, we must consider whether the assertion
of jurisdiction comports with "fair play and substantial justice." (2) See Guardian Royal Exch.,
815 S.W.2d at 228.  This analysis involves weighing five factors:  (1) the burden on the defendant,
(2) the interests of the forum state in adjudicating the dispute, (3) the plaintiff's interest in obtaining
convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most
efficient resolution of controversies, and (5) the shared interest of the several states in furthering
fundamental substantive social policies.  See id. (citing World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 292 (1980)).
		While it may be inconvenient for Brumback, Fletcher, and Benson to litigate
this matter in Texas, this lawsuit involves an alleged sale of securities to a Texas resident at a time
when CertaLogic was headquartered in Texas.  The execution of the relevant agreements occurred
in Texas, any misrepresentations or omissions to Steele were made when Steele was working for
CertaLogic in Texas, and Steele continues to reside in Texas.  Resolution of the matter will likely
involve the application of Texas law.  This case is pending before a Texas court, and CertaLogic is
a party to the lawsuit.  There is no allegation that the district court is unable to further fundamental
substantive social policies.  We conclude that the exercise of personal jurisdiction against Brumback,
Fletcher, and Benson comports with traditional notions of fair play and substantial justice. 
Therefore, the district court properly denied the special appearances filed by Brumback, Fletcher,
and Benson. (3)
Defendants Sundell, Manaras, and McGuinness & Manaras
		Next, we consider the special appearances filed by Sundell, Manaras, and the Manaras
Law Firm.  We again begin with specific jurisdiction, and must analyze the degree of connectedness
between the appellants' contacts with Texas and the operative facts of Steele's causes of action.
See Moki Mac, 221 S.W.3d at 584-85.  Sundell, Manaras, and the Manaras Law Firm--unlike
Brumback, Fletcher, and Benson--were not directors of CertaLogic and were not involved in the
approval of the terms of the Plan.  We must, therefore, take a closer look at the operative facts of the
litigation to determine if they are substantially connected to the actions of Sundell, Manaras, and the
Manaras Law Firm.
		Each of Steele's causes of action hinge on the terms of the Plan, or the circumstances
surrounding Steele's agreement to the Plan.  Steele alleges that the Plan's terms constitute an
unlawful offer of securities under the Texas Securities Act, or that misrepresentations made in the
April 2004 letter violate the Texas Securities Act.  Steele further alleges that the representations and
omissions made concerning the Plan's benefits or detriments to Steele--which representations and
omissions allegedly induced Steele's agreement to the Plan--constituted fraud, breach of fiduciary
duty, and negligence.  Steele further alleges that CertaLogic's withholding of compensation until he
agreed to the terms of the Plan constituted intentional infliction of emotional distress. (4)
		Steele contends that his causes of action also implicate the terms of the Termination
Letter and, therefore, that our specific jurisdiction analysis should take into account appellants'
respective roles in the preparation and provision of that letter.  However, the Termination Letter's
only references to the Plan relate to what amounts were owed under the Plan.  These references in
no way create any new liability to Steele.  They are, at most, a confirmation of the existence of the
Plan and the obligations established by the Plan.  The Termination Letter does not add new terms
to the Plan, offer additional amounts of shares or stock options through the Plan, establish a time
that payment will be made under the Plan, condition payment under the Plan on Steele's execution
of the letter, (5) or make any promises whatsoever regarding payment under the Plan.  Contrary to
Steele's contentions, no language of the Termination Letter indicates that it incorporated the terms of
the Plan or somehow "recommitted" whatever wrongdoing might be found in the terms of the Plan.
		Having concluded that the operative facts of this litigation are confined to
CertaLogic's offer and Steele's agreement to the terms of the Plan, we review the respective
involvements of Sundell, Manaras, and the Manaras Law Firm with the Plan so as to determine
whether the connections are sufficiently substantial to support an exercise of specific jurisdiction.
		In February 2004, Sundell was named the "acting" or "interim" chief financial officer,
and was an independent contractor of CertaLogic.  At that time, Brumback informed Steele and
others by email that Sundell would join CertaLogic as chief financial officer "when we get funding." 
Sundell became the chief financial officer in May 2005, almost a year after Steele's agreement to the
Plan.  Her sole involvement with the Plan was (1) she calculated based on CertaLogic's financial
records the compensation owed to Steele, which amount would become deferred compensation under
the Plan, (6) and (2) Steele was told that his signed acknowledgment that the Plan's terms replaced the
previously communicated terms of his independent contractor agreement should be returned to
Sundell.  Sundell avers that she had no input regarding the terms of the Plan.  She was not a director
and did not authorize or otherwise have any vote on the Plan.  While Steele alleges in this suit that
the amount of compensation set out in the April 2004 documents was incorrect, he signed off on the
amount, agreeing that the "amounts and calculations" were accurate, and he did not contact Sundell
or anyone else with CertaLogic at that time to discuss the Plan or contest the amount stated. (7)  Steele
testified that his only other contacts with Sundell concerned the bookkeeping issues of "pay or
expense reimbursement," and that she made no representations regarding CertaLogic securities or
future payments.  These actions by Sundell do not constitute "purposeful availment" with regard
to Steele's claims.  Sundell sought no benefit from Steele or Texas by her ministerial activities of
calculating and providing compensation figures.  While the amount of compensation due under the
Plan may be at issue, the wrongdoing alleged in Steele's lawsuit centers on the terms under which
such compensation will be or ought to have been paid.
		Neither Manaras nor the Manaras Law Firm has ever represented Steele.  They
provided legal services to CertaLogic in connection with the May 2005 Termination Letter.  They
also assisted CertaLogic with responding to Steele's current lawsuit and to the demand letter sent
by Steele's attorney prior to any litigation being filed.  Neither Manaras nor the Manaras Law Firm
provided any legal advice or services with regard to the Plan.  Neither Manaras nor the Manaras
Law Firm represented CertaLogic in any capacity until late 2004 or early 2005.
		In addition to his provision of legal services to CertaLogic through his law firm,
Manaras became an assistant secretary of CertaLogic in March 2006, and assumed the role of
secretary in June 2006.  Thus, Manaras was not a director or officer during the time period in which
Steele provided services to CertaLogic.  Manaras did not participate in any corporate decisions (as
a corporate officer or agent) involving Steele or the terms of the Plan.  Given that Manaras became
an officer after the Plan's execution, there is no substantial connection between Manaras's role and
duties as officer and Steele's causes of actions arising from the Plan's execution. (8)
		Given the operative facts of Steele's claims in this suit, the activities of Sundell,
Manaras, and the Manaras Law Firm do not justify a conclusion that they "should reasonably
anticipate being called into court" in Texas.  See Schlobohm v. Schapiro, 784 S.W.2d 355, 357
(Tex. 1990).  Steele's allegations regarding activities conducted within Texas are not sufficiently
related to the conduct of Sundell, Manaras, and the Manaras Law Firm so as to demonstrate the
minimum contacts required for specific jurisdiction.
		Next we consider whether the district court properly exercised personal jurisdiction
against Sundell, Manaras, and the Manaras Law Firm based on a general jurisdiction analysis. (9) 
General jurisdiction requires a showing that the defendant has made continuous and systematic
contacts with the forum state.  See BMC Software, 83 S.W.3d at 797.
		The only time Sundell has been in Texas was in 1968, when she and her husband
spent the night in Amarillo while driving from Ohio to California.  The only telephone or email
contacts Sundell has had with anyone in Texas were made in the course of providing ministerial
services on CertaLogic's behalf while she was located in New Hampshire (at her residence) or
Massachusetts (at CertaLogic's office).  Steele testified that his only contacts with Sundell concerned
basic inquiries regarding the timing or amount of expense reimbursement or compensation.
		The Manaras Law Firm is a Massachusetts limited liability partnership with its
principal--and only--place of business in Acton, Massachusetts.  None of its attorneys is licensed
to practice law in Texas, or has practiced law in Texas.  The firm does not advertise for business in
Texas.  The Manaras Law Firm has had three clients based in Texas, but the services provided to
those clients were performed in Massachusetts and represented less than one percent of the total
revenues received by the firm during the applicable time period.
		Similarly, Manaras is licensed to practice law in Massachusetts and New York,
but has never been licensed to practice law in Texas.  Manaras provided services to the three
Texas clients of the Manaras Law Firm, but again, those services were performed in Massachusetts
and represented less than one percent of the total revenues received by his firm during the applicable
time period.  Prior to his co-founding of the law firm, Manaras "did substantial travel both
domestically and internationally, including trips to Texas during such times on behalf of and as
required by [his] then-employers."  In addition, he sits on the board of directors of a corporation (not
affiliated with CertaLogic) that has scheduled board meetings "in various parts of the country,
including some that have been held in Texas."
		These contacts do not constitute "substantial activities" or "continuous and
systematic" contacts.  See id.  Neither Sundell, Manaras, nor the Manaras Law Firm have resided in
Texas, maintained an office in Texas, owned or leased any property in Texas, maintained any address
or phone number in Texas, or maintained an account in a Texas bank or financial institution. 
Sundell's contacts with Texas, as set out in the record, generally involved communications with
Steele on behalf of CertaLogic regarding administrative matters.  The Manaras Law Firm's contacts
with Texas were minimal and neither continuous nor systematic.  Manaras's additional contacts with
Texas generally occurred due to isolated business meetings not resulting from his own purposeful
availment or his seeking some benefit, advantage, or profit.  Neither Sundell, Maranas, nor the
Manaras Law Firm could have reasonably foreseen that their respective positions and activities
relevant to Texas would result in their being haled into Texas court for representations or sales made
in relation to a document the terms of which they did not develop, prepare, approve, or communicate. 
See id. at 795 ("Although not determinative, foreseeability is an important consideration in deciding
whether the nonresident defendant has purposefully established 'minimum contacts' with the forum
state.").  We conclude that--based on the record before this Court--Sundell's, Manaras's, and the
Manaras Law Firm's contacts with Texas are not sufficient to show general jurisdiction.
Conclusion
		Having concluded that the undisputed jurisdictional facts demonstrate appellants
Brumback, Fletcher, and Benson established the requisite minimum contacts with Texas to support
the exercise of specific jurisdiction, and that such exercise would not offend traditional notions
of fair play and substantial justice, we affirm the district court's denial of the special appearances
filed by Brumback, Fletcher, and Benson.  However, having concluded that the undisputed
jurisdictional facts demonstrate appellants Sundell, Manaras, and McGuinness & Manaras did not
establish the requisite minimum contacts with Texas to support the exercise of either specific or
general jurisdiction, we reverse the district court's denial of the special appearances filed by Sundell,
Manaras, and McGuinness & Manaras.  We render judgment dismissing the case against defendants
Sundell, Manaras, and McGuinness & Manaras for lack of personal jurisdiction.


						__________________________________________
						G. Alan Waldrop, Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Affirmed in part; Reversed and Rendered in part
Filed:   April 21, 2010
1.   Appellants assert that there is "nothing in the Record indicating how any particular member
of the board voted" with regard to the Plan.  However, if the plaintiff pleads sufficient allegations
to invoke jurisdiction under the Texas long-arm statute, the nonresident defendants assume
the burden of negating all bases of jurisdiction in those allegations.  Moki Mac River Expeditions
v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).
2.   We note that appellants in their briefing focus on the "minimum contacts" analysis and do
not expressly address the factors involved in the "fair play and substantial justice" analysis.
3.   Appellants also contend that Steele's allegations cannot support personal jurisdiction
against them because "there is uncontroverted proof that no tort was committed and/or that at least
one required element of each such tort claim has been negated."  Appellants' arguments focus on
whether their alleged acts would have the legal effect of creating tort liability.  We decline to address
appellants' arguments implicating whether appellants would ultimately be held liable under Steele's
claims because liability or non-liability under a given set of facts is not relevant to a minimum
contacts analysis.

[U]ltimate liability in tort is not a jurisdictional fact, and the merits of the cause are
not at issue.  Rather, the purpose of a special appearance is to determine whether the
actions alleged by a plaintiff suggest that a defendant should expect to be subject to
jurisdiction in Texas.

Wright v. Sage Eng'g, Inc., 137 S.W.3d 238, 251 n.10 (Tex. App.--Houston [1st Dist.] 2004,
pet. denied) (citations omitted).
4.   Steele also asserts causes of action for breach of contract and quantum meruit (in the event
the Plan does not constitute a binding contract).  However, since any contracts or agreements at issue
here were between Steele and CertaLogic, it appears these claims are asserted against CertaLogic
and not appellants.
5.   Steele alleges in his pleadings that "CertaLogic would not make any more payments to
him unless he complied with the terms specified in the termination letter."  However, the
Termination Letter states only that "[u]pon receipt by me of the information mentioned above . . .
4DL will send you a final check of $2500 for your services for the month of May 2005."  Unlike this
final payment of compensation from CertaLogic, payment of deferred compensation under the Plan
was not made contingent on compliance with the Termination Letter.  Moreover, Steele does not
allege that CertaLogic's request for him to return company-related information in connection with
his termination was wrongful.
6.   Similarly, Sundell avers that her only involvement with the Termination Letter was
verifying the amount owed to Steele, which amount was stated in the letter.
7.   Steele alleges that he "felt he had no choice" but to agree to the Plan's terms.
8.   Steele contends that the issuance of CertaLogic preferred stock to an investor
in August 2006 made Steele's stock "obsolete."  Even if this is true, there is no evidence or
allegation that any of CertaLogic's officers approved or were otherwise involved with such issuance. 
Steele references the legal notices provided to that investor as evidence Steele should have
received such notices, but does not explain how this implicates those appellants who were neither
directors nor officers when the Plan was offered to Steele.  Moreover, even if, as Steele contends,
Sundell or Manaras accepted a fiduciary duty to Steele upon their becoming officers, the breach of
fiduciary duty alleged in Steele's pleadings concerns only those representations and omissions made
surrounding his execution of the Plan-related documents, which preceded Sundell's and Manaras's
becoming officers.
9.   We note that Steele in his briefing addresses only specific jurisdiction.
