Opinion issued November 5, 2015




                                    In The

                           Court of Appeals
                                   For The

                       First District of Texas
                         ————————————
                           NO. 01-15-00465-CV
                         ———————————
           DARRELL JULIAN AND TED HENNIS, Appellants
                                      V.
   CADENCE MCSHANE CONSTRUCTION COMPANY, LLC AND
PINPOINT COMMERCIAL LP, GENERAL PARTNER OF PPC GP, LLC,
                       Appellees


                 On Appeal from the 165th District Court
                          Harris County, Texas
                    Trial Court Case No. 2014-13825


                       MEMORANDUM OPINION

     After a lawsuit was filed against them, Cadence Mcshane Construction

Company, LLC and Pinpoint Commercial LP filed third-party petitions against

Darrell Julian and Ted Hennis.    Julian and Hennis filed special appearances,
challenging the trial court’s personal jurisdiction over them. The trial court denied

the special appearances, and Julian and Hennis appealed. In five issues, Julian and

Hennis argue (1) res judicata prevented the trial court from exercising personal

jurisdiction over them; (2) collateral estoppel prevented the trial court from

exercising personal jurisdiction over them; (3) Cadence failed to allege facts in

their petition establishing the trial court’s jurisdiction over them; and (4) Cadence

failed to present sufficient facts to establish the trial court’s jurisdiction over them.

      We reverse and render.

                                     Background

      Cadence entered into a contract with Pinpoint Commercial to build an

assisted living facility for Pinpoint Commercial in Katy, Texas. Cadence was the

general contractor on the project.       Cadence subcontracted with Darrell Julian

Construction, Inc. (“DJC”) to install steel for the project. There is no indication in

the record of which party initiated contact for the contract. In the course of its

work on the project, DJC submitted an invoice to Cadence for CP Supply

Company (“CPSC”) as the supplier of steel on the project.

      Pursuant to a joint checking agreement with DJC, Cadence paid CPSC’s

invoice in two payments.        The agreement was signed by representatives for

Cadence, DJC (signed by Julian), and CPSC (signed by Hennis). The agreement

provided that payments would be made to both DJC (as the subcontractor) and



                                            2
CPSC (as the supplier) and that DJC and CPSC would determine between

themselves how the money would be divided between them.              The agreement

provided, “The sole purpose of this joint check agreement is to provide the

payment of invoices to Supplier on sales and/or rentals of all materials/equipment

to Subcontractor on the . . . project.”       After both payments, Hennis, as the

representative for CPSC, signed a notarized document acknowledging that CPSC

had been paid the amounts indicated “for all labor, services, equipment, or

materials furnished to the property or to [DJC] on the property of” the project.

Hennis notarized the documents in New Mexico.

      On March 14, 2014, Veteran Steel, LLC filed suit against Cadence, Pinpoint

Commercial, and DJC. In its petition, Veteran Steel alleged that it had contracted

with DJC to supply certain materials for Pinpoint Commercial’s project, that it

supplied the required materials, and that it had never been paid for the materials it

supplied. Cadence and Pinpoint answered the suit; asserted cross-claims against

DJC; and asserted third-party claims against CPSC, Julian, Hennis, and another

individual. Cadence and Pinpoint’s claims against Julian and Hennis were for

quantum meruit, trust fund claim violation, fraud, negligent misrepresentation, and

conspiracy.   Cadence and Pinpoint also asserted a claim of fraudulent record

against Hennis.




                                          3
      Before answering, Julian and Hennis filed special appearances, challenging

the trial court’s personal jurisdiction over them in their individual capacities.

Julian and Hennis are residents of New Mexico. DJC and CPSC are New Mexico

based companies. Julian is president and sole owner of DJC.              Hennis is an

employee of DJC and Vice President of Operations for CPSC. Julian and Hennis

asserted that they did not take any action on the project in their individual

capacities but, instead, in their capacities as agents for their respective companies.

      In his affidavits in support of his special appearance, Julian averred that his

only personal contacts with Texas were to attend football games or take vacations.

He also averred that he had not maintained any bank accounts in Texas, performed

any record keeping in Texas related to the project in question, attended any

meetings at the project site with the exception of one trip in December 2013,

authored or signed any documents or communications with any of the parties while

he was present in Texas, or made any representations about payments to DJC or

CPSC while he was present in Texas.

      In his affidavits in support of his special appearance, Hennis averred that his

only contacts with Texas were personal visits with his parents in Amarillo, Texas.

He also averred that he had not maintained any bank accounts in Texas, performed

any record keeping in Texas related to the project in question, attended any bid

meetings or construction meetings at the project site, authored or signed any



                                           4
documents or communications with any of the parties while he was present in

Texas, or made any representations about payments to DJC or CPSC while he was

present in Texas or anywhere else.

      In their response to the special appearances, Cadence and Pinpoint

Commercial attached a number of documents to support the trial court’s personal

jurisdiction over Julian and Hennis. This included an affidavit of Robert Bedrich,

vice president and division manager of Cadence. Bedrich asserted a number of

actions taken by Julian that subjected him to jurisdiction in Texas. Specifically,

Bedrich alleged that Julian had taken the following actions:

      a.    Sending false invoices to ship materials to Katy, Texas;

      b.    Creating a Joint Checking Agreement to send to Cadence
            McShane signed by both Mr. Julian and Mr. Hennis;

      c.    Engaging in multiple telephone meetings with Cadence
            McShane Personnel;

      d.    Attending multiple meetings in person with Cadence McShane
            in Texas;

      e.    Making multiple misrepresentations to Cadence in Texas that
            Cadence McShane reasonably relied upon to its detriment;

      f.    Executing notarized releases containing fake information that
            Cadence McShane received in Texas and then reasonably relied
            upon to its detriment;

      g.    Facilitating the transfer of materials from [CPSC] to Cadence
            McShane, which Mr. Julian was also the Principal of; [and]

      h.    Flying Mr. Julian to Houston to address the issue with suppliers
            on the Project.

                                         5
      Bedrich made similar assertions about actions taken by Hennis that

subjected him to jurisdiction in Texas. Specifically, Bedrich alleged that Hennis

had taken the following actions:

      a.    Creating a Joint Checking Agreement to send to Cadence
            McShane signed by both Mr. Julian and Mr. Hennis;

      b.    Making multiple misrepresentations to Cadence in Texas that
            Cadence McShane reasonably relied upon to its detriment;

      c.    Receiving payments from Cadence McShane’s bank in Texas;
            and

      d.    Executing notarized releases containing fake information that
            Cadence McShane received in Texas and then reasonably relied
            upon to its detriment.

      Cadence and Pinpoint’s other evidence attached to the response consisted of

the CPSC invoice, the joint checking agreement, Hennis’s notarized documents

acknowledging receipt of the documents, Cadence’s corresponding checks to DJC

and CPSC, and an email from a DJC employee claiming that Julian had committed

fraud on Cadence and Pinpoint and that CPSC was a shell company that had not

supplied anything on the project.

      The trial court denied Julian’s and Hennis’s special appearances. No party

requested findings of facts and conclusions of law.

                               Special Appearance

      In their fourth issue, Julian and Hennis argue that Cadence and Pinpoint

failed to plead sufficient facts in their petition to bring Julian and Hennis within


                                         6
Texas’s long-arm statute. In their fifth issue, Julian and Hennis argue Cadence and

Pinpoint failed to present sufficient evidence to establish that the trial court has

personal jurisdiction over them.

A.    Standard of Review

      “Whether a court can exercise personal jurisdiction over nonresident

defendants is a question of law, and thus we review de novo the trial court’s

determination of a special appearance.” Kelly v. Gen. Interior Constr., Inc., 301

S.W.3d 653, 657 (Tex. 2010). When a trial court does not issue findings of fact or

conclusions of law, “we presume that all factual disputes were resolved in favor of

the trial court’s ruling.”   Aduli v. Aduli, 368 S.W.3d 805, 813 (Tex. App.—

Houston [14th Dist.] 2012, no pet.). “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.”1

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).




1
      Our record contains a clerk’s record but no reporter’s record. There is no
      indication, however, that any evidence was admitted at the hearing on the special
      appearances. Likewise, the order reflects that “arguments” occurred at the hearing
      but that the court only reviewed “the pleadings [and] the foregoing motions and
      responses” in making its ruling. Any conflicting evidence, then, exists only in the
      clerk’s record. Accordingly, we determine the clerk’s record alone is sufficient to
      perform legal and factual sufficiency reviews in this case. Michiana Easy Livin’
      Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005) (holding “reporter’s
      record is required only if evidence is introduced in open court; for non-evidentiary
      hearings, it is superfluous”).

                                           7
B.    Applicable Law

      “A nonresident defendant is subject to the personal jurisdiction of Texas

courts if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and

(2) the exercise of jurisdiction does not violate federal and state constitutional due

process guarantees.” Kelly, 301 S.W.3d at 657. Texas’s long-arm statute extends

a trial court’s jurisdiction to the scope permitted by the federal constitution’s due-

process requirements. Id. Under due-process requirements, a state can exercise

personal jurisdiction over a nonresident “when the nonresident defendant has

established minimum contacts with the forum state, and the exercise of jurisdiction

comports with ‘traditional notions of fair play and substantial justice.’” Moki Mac

River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007) (quoting Int’l Shoe

Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945)).

      A party establishes minimum contacts with the forum state if it purposefully

avails itself of the privileges and benefits of conducting business in a state.

Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 24 (Tex. App.—Houston

[1st Dist.] 2010, no pet.).     The scope of the nonresident’s actions that can

constitute purposeful availment varies depending on the type of jurisdiction

alleged: general jurisdiction and specific jurisdiction.        Here, only specific

jurisdiction is at issue. Accordingly, we only consider the law as it applies to

specific jurisdiction.



                                          8
      A court has specific personal jurisdiction over a nonresident if (1) the

nonresident purposefully directed its activities toward the forum state or

purposefully availed itself of the privileges of conducting activities there and (2)

the controversy arises out of or is related to the non-resident’s contacts with the

forum state. Id. Such a determination ultimately concerns the relationship among

the nonresident, the forum, and the litigation. Kelly, 301 S.W.3d at 658. Certain

considerations are relevant in this determination. First, only the nonresident’s

actions are relevant to the determination of purposeful availment; unilateral actions

of the plaintiff or of a third party are not relevant. Touradji, 316 S.W.3d at 24.

Also, the actions of the nonresident must be purposeful; random, isolated, or

fortuitous actions are insufficient. Id. Likewise, the nonresident’s actions must

seek some benefit, advantage, or profit through the purposeful availment so that

the nonresident can be deemed to consent to suit there. Id.

      In contrast, proof that the nonresident “directed a tort” at a jurisdiction is

insufficient. Kelly, 301 S.W.3d at 661 (citing Michiana Easy Livin’ Country, Inc.

v. Holten, 168 S.W.3d 777, 788–92 (Tex. 2005)).          Claiming that a tort was

“directed at” a jurisdiction improperly shifts the focus from the defendant’s

relationship to the forum and the litigation to the plaintiff’s relationship to the

forum and the litigation. Michiana, 168 S.W.3d at 790.




                                         9
      We also exclude from our consideration whether the nonresident did, in fact,

commit a tort in Texas. Id. at 791. Otherwise, our jurisdictional rule would be

“guilty nonresidents can be sued here, innocent ones cannot.” Id. Instead, it is the

alleged actions (as it pertains the allegations in the pleadings) and the proven

actions (as it pertains to the evidence presented) of the nonresident that matter,

regardless of whether those actions are tortious. See id.

      Special appearances are subject to shifting burdens. Kelly, 301 S.W.3d at

658. “[T]he plaintiff bears the initial burden to plead sufficient allegations to bring

the nonresident defendant within the reach of Texas’s long-arm statute.” Id. In the

special appearance, the defendant bears the burden of negating “all bases of

personal jurisdiction alleged by the plaintiff.” Id. This review is necessarily tied

to the allegations in the plaintiff’s pleadings. Id. “Because the plaintiff defines the

scope and nature of the lawsuit, the defendant’s corresponding burden to negate

jurisdiction is tied to the allegations in the plaintiff’s pleadings.” Id. If the

plaintiff failed to plead sufficient facts to show the defendant is subject to the

personal jurisdiction of the court, the defendant need only prove that it does not

live in Texas. Id. at 658–59. Otherwise, the defendant bears the burden of either

disproving any contacts in Texas or showing that the contacts fall short of

purposeful availment. Id. at 659.




                                          10
C.    Analysis

      Cadence and Pinpoint asserted five causes of action against Julian and

Hennis:    quantum   meruit,   trust   fund   claim   violation,   fraud,   negligent

misrepresentation, and conspiracy. Cadence and Pinpoint also asserted a claim of

fraudulent record against Hennis.      Personal jurisdiction is determined by the

nonresident’s relationship to the litigation. Id. at 658. As a result, personal

jurisdiction is claim specific, meaning the trial court could have personal

jurisdiction over a party for some claims but not for others. See id. at 660;

Touradji, 316 S.W.3d at 25–26. If separate claims are based on the same forum

contacts, however, we can review the claims together. Touradji, 316 S.W.3d at 26.

For purposes of this appeal, we review the claims separately.

      1.     Quantum Meruit

      For the quantum meruit claim, it is relevant that the parties acknowledge that

contracts existed between Cadence, Pinpoint, DJC, and CPSC that concerned the

actions taken by the parties. Cadence and Pinpoint asserted a breach of contract

claim against DJC and CPSC for breach of these contracts. The quantum meruit

claim, which also include Julian and Hennis, is presented in the alternative to the

breach of contract claim.

      “Generally, a party may recover under quantum meruit only when there is no

express contract covering the services or materials furnished.” Vortt Exploration



                                         11
Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). A party can

nevertheless prevail by showing the contract “is unenforceable, impossible, not

fully performed, thwarted by mutual mistake, or void for other legal reasons.” Lee

v. Lee, 411 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

Cadence and Pinpoint provided no allegations for why the contract should not be

enforced. There is no explanation, then, of any actions taken by Julian and Hennis

in their individual capacity (that is, the capacity in which they were sued) that

would form the basis for this quantum meruit claim and that would subject them to

the personal jurisdiction of the court. See Kelly, 301 S.W.3d at 658 (holding

determination of specific personal jurisdiction concerns relationship among

nonresident, forum, and litigation and defendant’s burden to negate jurisdiction is

tied to allegations in plaintiff’s pleadings); Touradji, 316 S.W.3d at 25–26 (holding

specific jurisdiction is reviewed based on each individual claim).

      Julian and Hennis presented proof that they did not reside in Texas.

Accordingly, they presented sufficient evidence, on the basis of insufficient

pleading of jurisdictional facts, to rebut the assertion of personal jurisdiction over

them for Cadence and Pinpoint’s quantum meruit claim. See Kelly, 301 S.W.3d at

658–59. We sustain Julian and Hennis’s fourth issue as it applies to the quantum

meruit claim.




                                         12
      2.     Negligent Misrepresentation

      In this claim, Cadence and Pinpoint argue that Julian and Hennis made

negligent misrepresentations “for the purpose of inducing Cadence into entering a

contract with DJC.” By the allegations, then, the actions related to this claim

predate Cadence’s contract with DJC. Nothing in the petition and nothing in the

evidence related to the special appearances, however, offer any allegation or proof

of any action taken by Julian or Hennis before Cadence and DJC entered into a

contract.   Accordingly, there is nothing to establish the trial court’s personal

jurisdiction over them for this claim. We sustain Julian and Hennis’s fourth and

fifth issues as they apply to the negligent misrepresentation claim.

      3.     Trust Fund Claim

      Chapter 162 of the Texas Property Code makes certain payments for a

construction project “trust funds.”     See TEX. PROP. CODE ANN. § 162.001(a)

(Vernon 2014). We have held that this chapter can subject a corporate officer to

personal liability and personal jurisdiction of a Texas court.         See Herbert v.

Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 870 (Tex. App.—Houston [1st

Dist.] 1995, no writ). Cadence and Pinpoint alleged in their petition that Julian and

Hennis, as corporate officers of DJC, received funds meant to pay for the project

and were, pursuant to Chapter 162, trustees of those funds. Caden and Pinpoint

further alleged that Julian and Hennis breached their fiduciary duties by



                                         13
misapplying the money and giving it to a party that had not performed any work or

delivered any supplies for the project.

      Kelly also concerned the personal jurisdiction over a nonresident corporate

officer for a trust fund claim. 301 S.W.3d at 656–57. In that case, Kelly and

Hofstatter were Arizona residents and officers of Diva Consulting, an Arizona-

based company. Id. at 655. Diva was hired by Merristar as a general contractor to

renovate a Houston hotel. Id. Diva subcontracted work to other companies. Id.

During this time, Kelly made numerous trips to Texas to oversee the work. Id. A

dispute arose between Diva and GIC, a subcontractor. Id. at 655–56. Merristar

filed suit against Diva and GIC, among others. Id. at 656.

      GIC sued Diva, Kelly and Hofstatter, asserting claims under Chapter 162

and fraud. Id. GIC made no mention of Texas in its pleadings other than to

incorporate by reference the contract between the owner and Diva, which

identified Houston, Texas as the job site. Id. Kelly and Hofstatter filed special

appearances, asserting they were not residents of Texas. Id. GIC did not file any

responsive evidence showing actions taken by Kelly and Hofstatter in Texas. Id. at

660. The trial court denied the special appearances. Id. at 656.

      The Supreme Court of Texas held that the pleadings were insufficient to

establish personal jurisdiction over Kelly and Hoffstatter. Id. at 660. Regarding

the Chapter 162 claims, “GIC did not allege that [Kelly and Hoffstater] used or



                                          14
retained the trust funds in Texas, nor that they submitted false affidavits to

Merristar in Texas.” Id. (emphasis added). As a result, the court held, Kelly and

Hofstatter carried their burden by establishing that they did not live in Texas. Id.

      The court further rejected the claim that jurisdiction was established by the

allegation that Kelly and Hofstatter “controlled and directed funds received under

Diva’s contract with Merristar. But the mere existence of a cause of action does

not automatically satisfy jurisdictional due process concerns.” Id. Instead, GIC

was required to “plead and, when challenged by the defendants, present evidence

that the Officer’s relevant acts (i.e., those connected to GIC’s claims) occurred, at

least in part, in Texas.” Id. at 660–601.

      Finally, the court rejected the argument that the alleged conduct “sufficiently

‘relates to’ conduct purposefully directed toward Texas. But we rejected the

concept of directed-a-tort jurisdiction in Michiana.” Id. at 661 (citing Michiana,

168 S.W.3d at 788–92) (internal quotations omitted).

      Here, Cadence and Pinpoint’s pleading suffer from the same defect that was

identified in Kelly. While their section identifying the parties alleged that Julian

and Hennis could be served through the secretary of state because they “engage[d]

in business in Texas but [did] not maintain a residence . . . or a designated

registered agent for process,” the jurisdictional facts do not bear out this assertion.

Other than alleging that the construction project occurred in Texas, Cadence and



                                            15
Pinpoint do not identify that any of the operative facts relating to their causes of

action took place in Texas.

      In contrast to Kelly, Cadence and Pinpoint did offer evidence in their

response to the special appearances that they argue establishes personal

jurisdiction. We hold this evidence does not meet the requirements for showing

personal jurisdiction.

      Included with their response to the special exceptions, Cadence and Pinpoint

offered the affidavit of Bedrich, vice president and division manager of Cadence.

For almost all of the allegations asserted by Bedrich, there is no explanation of

where the actions taken by Julian or Hennis occurred. At most, Bedrich asserts

that these actions were directed at them in Texas. But proof that the action was

directed at Texas is insufficient. See id.; Michiana, 168 S.W.3d at 790.

      For actions occurring in Texas, Bedrich asserts that Julian “[a]ttend[ed]

multiple meetings in person with Cadence McShane in Texas.” But Bedrich offers

no explanation of what was said or done at those meetings or how anything said or

done at those meetings relate to any of their claims against Julian. It is undisputed

that Julian engaged with Cadence and Pinpoint on the project as an agent for DJC.

While they could assert claims against Julian for tortious acts he committed even

while acting as agent for DJC, see Ennis v. Loiseau, 164 S.W.3d 698, 707 (Tex.

App.—Austin 2005, no pet.) (recognizing well-established principle that corporate



                                         16
officer is primarily liable for his own torts), Cadence and Pinpoint had to

sufficiently establish jurisdictional facts to support those tortious claims, not for

actions taken by Julian in Texas in general. See Touradji, 316 S.W.3d at 25–26

(holding personal jurisdiction is claim-specific).

      Bedrich also asserted that, after the dispute with the suppliers came to light,

Julian flew to Houston to address the issue. Bedrich does not identify any actions

or statements by Julian during this meeting that support any of Cadence and

Pinpoint’s claims. Furthermore, Cadence and Pinpoint’s own evidence shows that,

by the time Julian flew to Houston to discuss this matter, Cadence and Pinpoint

already knew of the dispute and already had received confirmation from a DJC

employee that the tortious acts had been committed. Cadence and Pinpoint provide

no explanation for how actions taken by an alleged tortfeasor after the alleged tort

has occurred can supply a court with personal jurisdiction for the claim.

      Cadence and Pinpoint’s remaining evidence does nothing more to establish

any action taken by Julian or Hennis in Texas. To the contrary, to the degree that

the evidence provides any indication of Julian and Hennis’s actions, it shows the

actions occurred in New Mexico. This includes sending invoices and notarized

documents from New Mexico. Simply showing that Julian and Hennis, while in

New Mexico, spoke to Texas residents or sent invoices to Texas residents in the

context of an already-existing business deal to which Julian and Hennis were not



                                          17
personally parties does not suffice to establish personal jurisdiction. See Michiana,

168 S.W.3d 791–92 (disapproving cases holding personal jurisdiction is

established by claiming defendant directed tort at Texas through phone call from

Texas number); Bryan v. Gordon, 384 S.W.3d 908, 916 (Tex. App.—Houston

[14th Dist.] 2012, no pet.) (extending Michiana to multiple phone calls; holding

proof that document emailed to party in Texas is insufficient).

      Cadence and Pinpoint argue that this case is similar to Wright, in which this

Court found personal jurisdiction. Wright v. Sage Eng’g, Inc., 137 S.W.3d 238

(Tex. App.—Houston [1st Dist.] 2004, pet. denied). In Wright, we held that “this

and other appellate courts have held that a misrepresentation made by a

nonresident defendant directed toward Texas is sufficient to assert specific

jurisdiction.” Id. at 251. But this is precisely the ruling that the Texas Supreme

Court rejected in Michiana. In fact, the case we relied on for this assertion was the

intermediate appellate court opinion that Michiana expressly overruled. See id.

(citing Michiana Easy Livin’ Country, Inc. v. Holten, 127 S.W.3d 89, 98–99 (Tex.

App.—Houston [1st Dist.] 2003), rev’d, 168 S.W.3d 777, 788–92 (Tex. 2005)). 2




2
      At oral argument, Cadence and Pinpoint’s counsel cited to another case, claiming
      this case also supported their argument. See Glattly v. CMS Viron Corp., 177
      S.W.3d 438, 449 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Glattly relies on
      Wright to assert that directing a tort at Texas is sufficient for personal jurisdiction.
      Id. Accordingly, it is no greater support than Wright.

                                             18
      We sustain Julian and Hennis’s fourth and fifth issues as they apply to the

trust fund claim.

      4.     Fraud & Fraudulent Record

      Cadence and Pinpoint’s claims for fraud and fraudulent record focus on the

same facts as their trust fund claim. Kelly also concerned a trust fund claim and a

fraud claim. See Kelly, 301 S.W.3d at 660–61. Both were factually related, and

the court rejected both on similar grounds. See id. Cadence and Pinpoint’s proof

for their trust fund, fraud, and fraudulent record claims all suffer from the same

insufficient pleading and insufficient proof of jurisdictional contacts that we have

address for the trust fund claim. Accordingly, we hold the evidence is insufficient

to establish that the court has personal jurisdiction over Julian and Hennis for the

fraud and fraudulent record claims. We sustain Julian and Hennis’s fourth and

fifth issues as they apply to these claims.

      5.     Conspiracy

      For this claim, Cadence and Pinpoint alleged a conspiracy among the

various defendants to commit the claims we have reviewed. Personal jurisdiction

is established by considering the acts of the individual defendant, not the acts of

other defendants. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–75, 105 S.

Ct. 2174, 2183 (1985). Alleging conspiracy does avoid this rule. Nat’l Indus.

Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995) (criticizing conspiracy as



                                          19
independent basis for jurisdiction).      Because we have not found personal

jurisdiction over Julian and Hennis for the other claims and because Cadence and

Pinpoint have not alleged any further jurisdictional facts for this claim, we hold

there is no proof of personal jurisdiction over Julian and Hennis for this claim. We

sustain Julian and Hennis’s fourth and fifth issues as they apply to the conspiracy

claim. 3

                                    Conclusion

       We reverse the trial court’s denial of Julian’s and Hennis’s special

appearances. We render a judgment dismissing without prejudice the claims filed

against them.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Jennings, Higley, and Brown.




3
       Because review of Julian and Hennis’s remaining issues would not provide them
       with greater relief, we do not reach them. See TEX. R. APP. P. 47.1.

                                         20
