AFFIRM; Opinion Filed May 30, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00606-CV
VOLTAIX, LLC, Appellant
V.
JOHN AJONGWEN, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 80351-422
OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion by Justice Moseley
In this interlocutory appeal, Voltaix, LLC appeals the trial court’s order granting the
special appearance of John Ajongwen. In two issues, Voltaix contends Ajongwen failed to carry
his burden to negate all bases for personal jurisdiction alleged in the petition and the facts
demonstrate that Texas may exercise specific jurisdiction over Ajongwen. We conclude that
Ajongwen’s single trip to Texas is not substantially connected to the operative facts of this trade
secret litigation and, thus, Ajongwen negated all bases for personal jurisdiction alleged in the
pleadings. We affirm the trial court’s order granting Ajongwen’s special appearance.
BACKGROUND
Voltaix, with a principal place of business in New Jersey, manufactures germane gas, a
specialty gas used in the semiconductor and solar energy industries. Voltaix claims to have
various trade secrets about the manufacturing process that give it a competitive advantage in the
market. Two former Voltaix employees who worked at its New Jersey plant, Mathias C. Tezock
and Ronald Bachman, allegedly misappropriated the trade secrets in violation of their
employment agreements. After leaving Voltaix’s employment in New Jersey, Tezock purchased
property in Texas and formed Metaloid Precursors, Inc., a Texas corporation. Tezock is the
president and Bachman is the vice-president of Metaloid.
Voltaix sued Metaloid, Tezock, and Bachman in Texas for misappropriation of trade
secrets and other causes of action. Voltaix alleged that Metaloid built a chemical plant in Terrell,
Texas in order to manufacture germane gas using the trade secrets misappropriated from Voltaix.
Voltaix later joined as a defendant in the suit John Ajongwen, an investor in Metaloid and
its chairman of the board. It alleged Ajongwen assisted and participated in the torts of Tezock
and Metaloid, assisted and encouraged the misappropriation of trade secrets by Tezock and
Metaloid, and conspired with Tezock and Metaloid to misappropriate the trade secrets. Voltaix
alleged the trial court had jurisdiction over Ajongwen because he conducted business and
committed torts in Texas; specifically, Voltaix alleged Ajongwen traveled to Texas one time to
assist in starting up the water purification system and to conduct a safety inspection at Metaloid’s
plant.
Ajongwen, a chemical engineer and former employee of Merck & Co., is a New Jersey
resident. He filed a special appearance alleging he was a nonresident defendant not amenable to
the trial court’s jurisdiction; Ajongwen attached his affidavit and filed a brief in support of his
special appearance where he asserted his attached deposition testimony showed he did not have
minimum contacts with Texas. In response, Voltaix argued Ajongwen failed to negate Voltaix’s
allegations of specific jurisdiction and that Ajongwen had sufficient contacts with Texas to
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confer personal jurisdiction. In support of its response, Voltaix attached and incorporated
Ajongwen’s oral deposition and excerpts from the oral deposition of Dr. Leisl Dukhedin-Lalla.
The trial court heard argument on the special appearance, but the parties did not submit
additional evidence at the hearing. The trial court granted Ajongwen’s special appearance and
did not file findings of fact or conclusions of law. Voltaix appeals.
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 ruling on a special appearance.
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). When a trial court does not issue
findings of fact or conclusions of law, “all facts necessary to support the judgment and supported
by the evidence are implied.” BMC Software, 83 S.W.3d at 795. We will affirm the trial court’s
ruling on any legal theory finding support in the record. See id.; Dukatt v. Dukatt, 355 S.W.3d
231, 237 (Tex. App.—Dallas 2011, pet. denied).
APPLICABLE LAW
A. Personal Jurisdiction
Texas courts may exercise personal jurisdiction over a nonresident defendant if: (1) the
Texas long-arm statute permits the exercise of jurisdiction, and (2) the assertion of jurisdiction
satisfies constitutional due process guarantees. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d
653, 657 (Tex. 2010). The long-arm statute reaches “as far as the federal constitutional
requirements for due process will allow.” Am. Type Culture Collection, Inc. v. Coleman, 83
S.W.3d 801, 806 (Tex. 2002) (quoting Guardian Royal Exch. Assur., Ltd. v. English China
Clays, P.L.C., 806 S.W.2d 223, 226 (Tex. 1991)). Thus, the long-arm statute’s requirements are
satisfied if exercising jurisdiction comports with federal due process limitations. Id. Personal
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jurisdiction over a nonresident defendant satisfies constitutional due process guarantees 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.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).
Minimum contacts are established 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. Kelly, 301 S.W.3d at 657–58. There are three parts to the
purposeful-availment inquiry: (1) only the defendant’s contacts are relevant; (2) the contact must
be purposeful, not random, fortuitous, or attenuated; and (3) the defendant must seek some
advantage, benefit, or profit by availing itself of the forum. See Moki Mac, 221 S.W.3d at 575.
In addition to the purposeful-availment requirement, the defendant’s contacts with the
forum must give rise to either specific or general jurisdiction. Retamco Operating, Inc. v.
Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). Voltaix concedes that Texas cannot
exercise general jurisdiction over Ajongwen, and has only challenged the trial court’s ruling with
regard to specific jurisdiction. Our inquiry is limited accordingly.
Specific jurisdiction is established if the defendant’s alleged liability arises out of or
relates to the defendant’s contacts with the forum state. Moki Mac, 221 S.W.3d at 575–76. The
specific jurisdiction analysis focuses on the relationship among the defendant, the forum, and the
litigation. Id.
B. Special Appearance
The plaintiff bears the initial burden of pleading sufficient allegations to bring a
nonresident defendant within the provisions of the Texas long-arm statute. BMC Software, 83
S.W.3d at 793. Once the plaintiff has pleaded sufficient jurisdictional allegations, a nonresident
defendant challenging personal jurisdiction in Texas must file a verified special appearance. See
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TEX. R. CIV. P. 120a. To prevail, the nonresident defendant must negate all grounds for personal
jurisdiction alleged by the plaintiff. Kelly, 301 S.W.3d at 658. If the defendant does so, the
burden shifts back to the plaintiff to show the court has personal jurisdiction over the defendant
as a matter of law. Alliance Royalties, LLC v. Boothe, 329 S.W.3d 117, 120 (Tex. App.—Dallas
2010, no pet.).
The nonresident defendant can negate jurisdiction on either a factual or legal basis.
Kelly, 301 S.W.3d at 659. A factual attack requires the defendant to present evidence that it has
no contacts with Texas, effectively disproving the plaintiff’s allegations. Id. In a legal attack,
the defendant can show that even if the plaintiff’s alleged facts are true, the evidence is legally
insufficient to establish jurisdiction because the defendant's contacts fall short of purposeful
availment, the plaintiff’s claims do not arise from the contacts (in cases asserting specific
jurisdiction over the defendant), or that traditional notions of fair play and substantial justice are
offended by the exercise of jurisdiction. Id.
ANALYSIS
Voltaix contends the trial court erred by granting Ajongwen’s special appearance because
Ajongwen failed to negate specific jurisdiction and the undisputed facts demonstrate that Texas
courts may exercise specific jurisdiction over him.
A. Burden to Negate Jurisdictional Allegations
In its first issue, Voltaix argues Ajongwen failed to negate all bases for jurisdiction
alleged by Voltaix. Voltaix alleged Ajongwen was liable for: (1) “assisting and participating in
the tortious acts of Tezock and Metaloid”; (2) “assisting and encouraging the misappropriation of
trade secrets by Tezock and Metaloid”; and (3) “conspiracy to misappropriate Voltaix’s trade
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secrets.” 1 Voltaix’s allegation as to why Texas courts have jurisdiction over Ajongwen is that he
travelled to Texas to set up Metaloid’s water purification system. 2
Because Voltaix alleged specific jurisdictional facts, Ajongwen had the burden to do
more than prove he was a nonresident of Texas. Whether he met that burden is determined based
on a review of the entire record, not merely the pleadings. Pleadings frame the jurisdictional
dispute, but are not dispositive. Kelly, 301 S.W.3d at 658 n.4. A special appearance is decided
on the basis of the pleadings, stipulations, affidavits and attachments filed by the parties, results
of discovery, and any oral testimony at the hearing. TEX. R. CIV. P. 120a(3).
In support of the special appearance, Ajongwen submitted his affidavit and portions of
his deposition. Voltaix attached all of Ajongwen’s deposition to its response to the special
appearance and the deposition was admitted into evidence at the hearing. The record indicates
that Ajongwen came to Texas one time for a day and a half to oversee the start-up of the water
purification system and to check on the ability of the plant to deal with potential leaks of
hydrogen gas. Ajongwen did not deny this single contact with Texas. He argued at the hearing
1
It is not necessary to this appeal to discuss the merit of these causes of action. However, personal jurisdiction
over a nonresident cannot be premised on contacts imputed from another person or entity. See Nat’l Indus. Sand
Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995) (orig. proceeding) (“we decline to recognize the assertion of
personal jurisdiction over a nonresident defendant based solely on the effects or consequences of an alleged
conspiracy with a resident in the forum state”).
2
Specifically, Voltaix alleged:
In 2007, Tezock, seeking funding for the enterprise that ultimately became Metaloid, disclosed to
Ajongwen confidential technical information about Voltaix's process for manufacturing germane,
including details of its water purification process and specifications, the chemical reactions
necessary for manufacture of germane, the identity of Voltaix's customers, suppliers, and the raw
materials used in Voltaix's process for manufacturing germane.
...
Ajongwen came to Texas in June 2008 to install and/or otherwise work on the water purification
system used in the Metaloid plant in accordance with certain confidential Voltaix water purity
specifications provided to him by Tezock and to provide technical advice concerning other issues
in the manufacture of germane. Ajongwen knew—or at least had knowledge of facts that would
put him on notice—that information provided by Tezock about the chemical reactions for making
germane and the water purification specifications used in the process and the water purification
specification were trade secrets of Voltaix and that use of such information by Tezock and
Metaloid was a violation of Voltaix’s rights.
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that the water purification system installed by Metaloid was a commercially available system and
not Voltaix’s trade secret.
The only way to determine Voltaix’s first issue—whether Ajongwen failed to negate all
bases for personal jurisdiction—is to conduct the jurisdictional analysis on the record before the
trial court. In other words, Voltaix’s first issue adds nothing to the analysis of its second issue,
and presents no independent basis for reversing the trial court’s order. The real issue is whether
Ajongwen’s single undisputed contact is sufficient to satisfy the specific jurisdiction standard.
We overrule Voltaix’s first issue.
B. Specific Jurisdiction
Thus, we turn to Voltaix’s second issue, whether the record shows Ajongwen has
sufficient minimum contacts with Texas to support the exercise of specific jurisdiction. To
support the exercise of specific jurisdiction in this case, (1) Ajongwen must have made minimum
contacts with Texas by purposefully availing himself of the privilege of conducting activities
here, and (2) his alleged liability must have arisen from or related to those contacts. Moki Mac,
221 S.W.3d at 576. We focus on the second requirement because it is dispositive. The main
question is whether Ajongwen’s alleged liability arises from or is related to his single undisputed
contact with Texas. See id. (citing Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408,
414 n.8 (1984)). We decide this question by determining whether Ajongwen’s contact with
Texas is substantially connected to the operative facts of the litigation. Id. at 584–85.
1. Ajongwen’s Texas Contact
The record indicates Ajongwen travelled to Texas one time to oversee the start-up of the
water purification system and to conduct a safety inspection of Metaloid’s plant. Ajongwen
spent a day and a half at the Metaloid facility in Texas. His visit was prior to the production of
any germane gas at the plant. The water purification system was a commercial system purchased
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from Siemens. The water purification system was started, but it did not produce the water
purification levels Ajongwen and Tezock were looking for. By the time Ajongwen left the plant
in Texas, he discussed with Tezock whether they needed the high water purity levels they had
originally thought. They later decided the water purity level was not as important as removing
certain elements from the water and modified the system accordingly. One of the primary
reasons Ajongwen came to Texas was to perform a safety study because of the risk of hydrogen
gas leaks.
2. Misappropriation of Trade Secrets
To prevail on its claim for misappropriation of trade secrets, Voltaix must establish (1)
the trade secret existed; (2) the trade secret was acquired through breach of a confidential
relationship or was discovered by improper means; (3) the defendant used the trade secret
without authorization; and (4) that Voltaix suffered damages as a result. See Twister B.V. v.
Newton Research Partners, LP, 364 S.W.3d 428, 437 (Tex. App.—Dallas 2012, no pet.) (citing
Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348,
366–67 (Tex. App.—Dallas 2009, pet. denied). In addition, Voltaix will be required to prove its
allegations supporting personal liability against Ajongwen.
In our specific jurisdiction analysis, we must focus on the relationship among Ajongwen,
the litigation, and the forum. See Moki Mac, 221 S.W.3d at 585. The operative facts of this
litigation will focus on the existence and scope of the alleged trade secrets, the acts of
misappropriation by Tezock and Bachman in New Jersey, and the alleged use of the trade secrets
by Metaloid at its plant in Texas. In addition, the operative facts will include what Ajongwen
did to assist Tezock and Metaloid by giving them technical advice, financial assistance, and
encouragement as alleged by Voltaix.
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Ajongwen explained in his deposition his past experience with water purification systems
in the pharmaceutical industry and the dangers of hydrogen gas produced as a part of that
process. The pharmaceutical industry uses the highest possible water purity levels. He also
explained that the electronics industry uses water purity levels just below that of the
pharmaceutical industry. Ajongwen is an expert in water purification based on his education and
experience with Merck. Based on that expertise, Ajongwen recommended several vendors of
water purification systems to Tezock during their discussions in New Jersey and Tezock later
selected the vendor for the Metaloid plant.
Voltaix alleged that Tezock disclosed the trade secrets to Ajongwen in 2007, almost a
year before Ajongwen traveled to Texas. There are no allegations that Ajongwen provided
financial assistance or encouragement to Tezock in Texas. Ajongwen’s deposition testimony
indicates that much of the technical advice, financial assistance, or encouragement he gave
Tezock occurred in New Jersey. Ajongwen’s single trip to Texas occurred several months after
the trade secrets were allegedly disclosed to Ajongwen and after the water purification system
had been purchased. Thus, as in Moki Mac, Ajongwen’s activities in Texas will not be the main
focus of the litigation regarding his alleged liability. See Moki Mac, 221 S.W.3d at 585. His
single trip to Texas is not substantially connected to the operative facts about his alleged
assistance in the misappropriation of Voltaix’s trade secrets.
Voltaix argues Ajongwen is subject to personal jurisdiction not merely because he
traveled to Texas, but because he did so knowing that he was involved in the misappropriation of
Voltaix’s trade secrets. But Ajongwen’s knowledge of the trade secrets is not connected to
Texas. According to Voltaix, Ajongwen acquired that knowledge from Tezock in New Jersey
long before Ajongwen came to Texas.
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We conclude Ajongwen’s single contact with Texas is not substantially connected to the
operative facts of the litigation. See Moki Mac, 221 S.W.3d at 576, 585. Therefore, Ajongwen’s
alleged liability does not arise from or relate to his contact with Texas and Texas courts may not
exercise specific jurisdiction over him. See id. We overrule Voltaix’s second issue. 3
CONCLUSION
We conclude Ajongwen negated all bases for personal jurisdiction alleged in the
pleadings and that the record shows Ajongwen does not have minimum contacts with Texas
sufficient to support the exercise of specific jurisdiction.
We affirm the trial court’s order.
120606F.P05
/JimMoseley/
JIM MOSELEY
JUSTICE
3
Because Ajongwen lacks minimum contacts with Texas, it is not necessary to discuss the fair-play-and-
substantial-justice prong of personal jurisdiction See Kelly, 301 S.W.3d at 661 n.10.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VOLTAIX, LLC, Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-12-00606-CV V. Trial Court Cause No. 80351-422.
Opinion delivered by Justice Moseley.
JOHN AJONGWEN, Appellee Justices Fillmore and Myers participating.
In accordance with this Court’s opinion of this date, the trial court’s order granting
defendant John Ajongwen’s special appearance is AFFIRMED.
It is ORDERED that appellee JOHN AJONGWEN recover his costs of this appeal from
appellant VOLTAIX, LLC.
Judgment entered this May 30, 2013.
/Jim Moseley/
JIM MOSELEY
JUSTICE
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