author: Justice MAZZANT.

text:
    David H. HOFFMANN, Appellant, v. Jeff DANDURAND, Appellee.
    No. 05-05-00311-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2005.

      D. Kevin MeCorkindale, Kasselman & McCorkindale, P.C., Plano, for appellant.
    Gordon K. Wright, Cooper & Scully, P.C., Dallas, for appellee.
    Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

In this interlocutory appeal, David H. Hoffmann (“Hoffmann”) appeals an order denying his special appearance in a suit brought by Jeff Dandurand (“Dandu-rand”). See Tex. Crv. PRAC. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2005). Hoffmann presents four issues contending that his special appearance should have been granted: (1) the trial court does not have general jurisdiction over him; (2) the trial court does not have specific jurisdiction over him; (3) the exercise of personal jurisdiction over him offends traditional notions of fair play and substantial justice and is inconsistent with the constitutional requirements of due process; and (4) the trial court’s findings of fact and conclusions of law are not supported by the record. For the following reasons, we conclude that Hoffmann is not subject to personal jurisdiction in Texas and reverse the judgment of the trial court.

Factual and Procedural Background

Dandurand was an employee of DHR International, Inc. (“DHR”) for over five years. DHR was an executive search firm based in Chicago, Illinois. Dandurand alleges that in November 1996 he entered into an agreement with DHR to buy rights to purchase stock. This agreement was signed by Hoffmann on behalf of DHR and Dandurand. The terms of this agreement included a repurchase clause that gave Dandurand the right to sell his purchase rights back to DHR. Dandurand alleges that in July of 1997 he exercised his rights under the repurchase clause and agreed upon a repurchase price to be made by DHR in five annual payments. In December of 1998, EPS Solutions, Inc. (“EPS”) acquired the assets of DHR, including the right to use its name. EPS also assumed Dandurand’s contract. In 2001, EPS sold its executive search firm assets to Hoff-mann Investment Company, Inc. (“HIC”) including the right to use the DHR name.

On May 28, 2002, Dandurand filed suit against DHR, HIC, Riverwalk International, Inc. (“Riverwalk”), and Hoffmann for breach of contract. Dandurand alleges that he received the first four annual payments that he was owed for the sale of his stock purchase rights, but claims that he never received the fifth and final annual payment that was due. DHR and HIC filed original answers, generally appearing in the lawsuit. Hoffmann and Riverwalk filed special appearances. On September 5, 2002, the special appearances were denied. Hoffmann and Riverwalk then requested findings of fact and conclusions of law. On September 5, 2003, the trial court issued findings of fact and conclusions of law.

Hoffmann appealed the order to this Court, which reversed the judgment and remanded the case to the trial court for further proceedings consistent with our opinion. Hoffmann v. Dandurand, 143 S.W.3d 555 (Tex.App.-Dallas 2004, no writ.). Subsequently, Dandurand and Hoffmann both filed proposed “Amended Findings of Fact and Conclusions of Law” with the trial court. Hoffmann’s were “refused and denied.” Dandurand’s were accepted and signed by the trial court, which once again denied Hoffmann’s special appearance. Hoffmann now appeals the decision of the trial court.

Standard of Review

Whether a court has personal jurisdiction over a defendant is a question of law. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-806 (Tex.2002)(citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002)). In resolving this question of law, a trial court must frequently resolve questions of fact. Coleman, 83 S.W.3d at 806 (citing BMC Software, 83 S.W.3d at 794). Appellate courts review the trial court’s factual findings for legal and factual sufficiency and review the trial court’s legal conclusions de novo. BMC Software, 83 S.W.3d at 794; Hotel Partners v. Craig, 993 S.W.2d 116, 120-21 (Tex.App.-Dallas 1994, pet. denied). If the trial court enters findings of fact and conclusions of law, the appellant may challenge them on factual sufficiency grounds. Id.; see also Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 634 (Tex.App.-Dallas 1993, writ denied). When a factual sufficiency challenge is advanced the court must examine all the evidence. Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 10 (Tex.App.-San Antonio 2004, pet. denied); Leon Ltd. v. Albuquerque Commons Partnership, 862 S.W.2d 693, 705 (Tex.App.-El Paso 1993, no writ). The court may set aside a finding only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Carone, 138 S.W.3d at 7. When there is a legal sufficiency challenge, if-there is more than a scintilla of evidence to support the questioned finding the no evidence point fails. BMC Software, 83 S.W.3d at 794; see also City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005).

Personal Jurisdiction

The Texas long-arm statute permits Texas courts to exercise jurisdiction over a nonresident defendant that does business in Texas. See Tex. Civ. PRAC. & Rem.Code Ann. § 17.041-.045 (Vernon 1997). The long-arm statute defines “doing business” as: (1) contracting by mail or otherwise with a Texas resident with performance either in whole or in part in Texas; (2) commission of a tort in whole or in part in Texas; (3) recruitment of Texas residents directly or through an intermediary located in Texas; or (4) performance of any other act that may constitute doing business. Id. The broad language of the long-arm statute permits Texas courts to exercise jurisdiction “as far as the federal constitutional requirements of due process will permit.” BMC Software, 83 S.W.3d at 795.

Personal jurisdiction over nonresident defendants meets the due process requirements of the Constitution when two conditions are met: (1) the 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. BMC Software, 83 S.W.3d at 795 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Personal jurisdiction exists if the nonresident defendant’s minimum contacts give rise to either general or specific jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); BMC Software, 83 S.W.3d at 795-796. General jurisdiction is present when the defendant’s contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software, 83 S.W.3d at 796; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). In contrast, specific jurisdiction is established if the nonresident defendant’s alleged liability arises from or is related to activity conducted within the forum. BMC Software, 83 S.W.3d at 796.

The “touchstone” of jurisdictional due process analysis is “purposeful availment.” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex.2005)(citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). “[I]t is essential in each case that there be some act by which the defendant ‘purposefully avails’ itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 785 (quoting Hanson, 357 U.S. at 253, 78 S.Ct. 1228). The Texas Supreme Court has recently discussed the requirements of “purposeful availment” outlining three important aspects to be considered. “First, it is only the defendant’s contacts with the forum that count: purposeful availment ‘ensures that a defendant will not be haled into a jurisdiction solely as a result of ... the unilateral activity of another party or a third person.’ ” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Second, the acts relied upon must be “purposeful” rather than “random, isolated or fortuitous.” Id. (quoting Keeton v. Hustler Magazine Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Third, a defendant must seek some benefit, advantage or profit by “availing” itself of the jurisdiction. By invoking the benefit and protections of a forum’s laws, a nonresident consents to suit there. Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). By contrast, a nonresident may purposefully avoid a jurisdiction by structuring its transactions so as neither to profit from the forum’s laws nor be subject to its jurisdiction. Id. (citing Burger King, 471 U.S. at 473, 105 S.Ct. 2174).

In addition to minimum contacts, the exercise of personal jurisdiction must comport with traditional notions of fair play and substantial justice. BMC Software, 83 S.W.3d at 795 (citing Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154). The following factors are considered in making that determination: (1) the burden on the nonresident defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiffs 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 substantive social policies. World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. 559; Guardian Royal Exchange Assur., Ltd. v. English China Clays, 815 S.W.2d 223, 231 (Tex.1991).

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provision of the Texas long-arm statute. BMC Software, 83 S.W.3d at 793. A nonresident defendant challenging personal jurisdiction through a special appearance carries the burden of negating all bases of personal jurisdiction. Id.; Torregrossa v. Szelc, 603 S.W.2d 803, 804 (Tex.1980); Le Meridien Hotels and Resorts v. LaSalle Hotel Operating Partnership, 141 S.W.3d 870, 878 (Tex.App.-Dallas 2004, no pet.); Ramirez v. Hariri, 165 S.W.3d 912, 915 (Tex.App.-Dallas 2005, no pet.). One exception to that rule arises when the claimant asserts the alter ego theory as the basis for personal jurisdiction over the nonresident. BMC Software, 83 S.W.3d at 798; Le Meridien, 141 S.W.3d at 878; Carone, 138 S.W.3d at 10. The claimant must prove that the nonresident is actually the alter ego of the resident corporation. Le Meridien, 141 S.W.3d at 878.

The Alter Ego Theory

Dandurand asserts and the trial court concluded that personal jurisdiction over Hoffmann is proper based on the alter ego theory of disregarding the corporate fiction. Generally, a corporation is a separate legal entity that insulates its owners or shareholders from personal liability. Schlueter v. Carey, 112 S.W.3d 164, 169 (Tex.App.-Fort Worth 2003, pet. denied). Alter ego applies when there is such unity between a corporation and an individual that the separateness of the corporation has ceased and holding only the corporation liable would result in an injustice. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990). The types of evidence a court will consider as proof of an alter ego include: (1) the payment of alleged corporate debts with personal checks or other commingling of funds; (2) representations that the individual will financially back the corporation; (3) the diversion of company profits to the individual for his personal use; (4) inadequate capitalization; and (5) other failure to keep corporate and personal assets separate. Carone, 138 S.W.3d at 13; Mancorp, 802 S.W.2d at 229. Failure to comply with corporate formalities is no longer a factor in considering whether alter ego exists. See Tex. Bus. CoRP. Act Ann. art. 2.21(A)(3) (Vernon 2003); Carone, 138 S.W.3d at 13. Am individual’s standing as an officer, director, or majority shareholder of an entity alone is insufficient to support a finding of alter ego. Goldstein v. Mortenson, 113 S.W.3d 769, 781 (Tex.App.-Austin 2003, no pet.).

The corporate fiction is disregarded, even though corporate formalities have been observed and individual property kept separately, only when the corporate form has been used as a part of an unfair device to achieve an inequitable result. Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986); see also Tex. Bus. Corp. Act Ann. art. 2.21(A)(2) (Vernon 2003). Some examples of where the corporate form is used to achieve an unequitable result include: (1) where the corporate fiction is used as a means of perpetrating a fraud; (2) where a corporation is organized and operated as a mere tool or business conduit of another corporation; (3) where the corporate fiction is resorted to as a means of evading an existing legal obligation; (4) where the corporate fiction is used to achieve or perpetrate a monopoly; (5) where corporate fiction is used to circumvent a statute; or (6) where the corporate fiction is relied upon as a protection of crime or to justify wrongdoing. Castleberry, 721 S.W.2d at 272.

The Single Business Enterprise Theory

Dandurand asserts and the trial court concluded that personal jurisdiction over Hoffmann is proper based on the single business entity theory of disregarding the corporate fiction. The single business enterprise theory is another equitable doctrine used to disregard the separate existence of corporations when corporations are not operated as separate entities, but rather integrate their resources to achieve a common business purpose. Old Republic Ins. Co. v. EX-IM Servs. Corp., 920 S.W.2d 393, 395-96 (Tex.App.-Houston [1st Dist.] 1996, no writ). Factors to be considered in determining whether corporations operate as a single business enterprise include, but are not limited to, the following: (1) common employees; (2) common offices; (3) centralized accounting; (4) payment of wages by one corporation to another corporation’s employees; (5) common business name; (6) services rendered by the employees of one corporation on behalf of another corporation; (7) undocumented transfers of funds between corporations; and (8) unclear allocation of profits and losses between corporations. Paramount Petroleum Corp. v. Taylor Rental Center, 712 S.W.2d 534, 536 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.).

The Texas Supreme Court has not decided whether the theory of single business enterprise is a necessary addition to Texas law. Southern Union Co. v. City of Edinburg, 129 S.W.3d 74, 87 (Tex.2003). Several Texas appellate courts have, however, recognized the single business enterprise theory as a method of piercing the corporate veil. See Nat'l Plan Admin., Inc. v. Nat’l Health Ins. Co., 150 S.W.3d 718, 744 (Tex.App.-Austin 2004, pet. pending); Aluminum Chems. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 64, 68 (Tex.App.-Texarkana 2000, no pet.); Hall v. Timmons, 987 S.W.2d 248, 253 (Tex.App.-Beaumont 1999, no pet.).

Findings of Fact

Before we can analyze Hoffmann’s first three issues regarding whether the trial court may exercise personal jurisdiction over him, we must first review his fourth issue and ascertain whether the trial court’s findings of fact and conclusions of law are supported by the record. Hoff-mann contests many of the Amended Findings of Fact made by the trial court. Specifically, he contests Amended Findings of Fact 7, 8, 13, 18, 28, 32, 33, 34, 35, 37, 39, 43, 44, 50, 51, 55 and 56. Thus, we are required to make an examination of all of the evidence. See Carone, 138 S.W.3d at 10; Leon, 862 S.W.2d at 705.

Amended Findings of Fact 7, 8, 33, 34, 35, and 44 contain various assertions that Hoffmann was acting individually, as opposed to on behalf of DHR, when executing the contract with Dandurand. These findings are unsupported by the evidence. The record reflects that a contract was entered into on November 15, 1996, between DHR and Dandurand in which Dandurand acquired the right to purchase common stock in DHR. Hoff-mann did not sign the contract “as DHR,” but rather “on behalf of DHR.” Even Dan-durand in his Original Petition states, “Dandurand entered into an agreement with DHR.” The contract contained a repurchase clause that gave Dandurand the right to sell his stock purchase rights back to DHR. There is no evidence in the record that any stock was ever transferred. Nor is there evidence in the record that Hoffmann controlled the contract with Dandurand, or that the contract was for his benefit.

Amended Findings of Fact 28, 32, and 39, refer to Hoffmann’s alleged contacts with the State of Texas. There is evidence in the record that Hoffmann had contact with the State of Texas in his capacity as an officer of HIC and DHR, which supports Amended Finding of Fact 32. Hoff-mann acknowledges making phone calls to Texas and receiving phone calls from Texas. He also acknowledges making a few business trips to Texas as a representative of DHR. There is no evidence in the record, however, that, Hoffinann discussed the contract with Dandurand while he was in Texas, as asserted in Amended Finding of Fact 39. Further, contrary to Amended Finding 28, the evidence is uncontroverted that Hoffmann spent no more than a total of seven days in Texas.

Amended Findings of Fact 13,18, 37, 43, 50, and 51 are all conclusions that would bolster Dandurand’s argument for disregarding the corporate fiction using the alter ego or single business enterprise theory. However, there is no evidence in the record to substantiate these findings. Specifically, there is no evidence in the record that EPS sold any assets to Hoff-mann. The record reflects that EPS sold assets to HIC, or the current DHR, not to Hoffinann individually. The record does not contain evidence that HIC has failed to maintain corporate formalities. Further, there is no evidence that the operations of Hoffinann, HIC, and both the former and current DHR were not separate, or that HIC, and both the former and current DHR, were conduits through which Hoff-mann conducted business. Nor is there evidence that Hoffmann and HIC, and the current and former DHR, are a single business enterprise.

After a thorough review of the record in this case, we conclude Amended Findings of Fact 32, 55 and 56 are the only contested findings of fact supported by the evidence. Amended Findings of Fact 7, 8, 13,18, 28, 33, 34, 35, 37, 39, 43, 44, 50, and 51 are so contrary to the overwhelming weight of the evidence that they are manifestly unjust and wrong. See Carone, 138 S.W.3d at 7; Haught v. Agricultural Production Credit Ass’n, 39 S.W.3d 252 (Tex.App.-Tyler 2000, no pet.). Consequently, the conclusions of law which are based on those findings of fact are also incorrect. Haught, 39 S.W.3d at 263.

Conclusions of Law

Hoffmann challenges all of the trial court’s conclusions of law. The trial court concluded that: (1) jurisdiction is proper under the alter ego theory of jurisdiction; (2) jurisdiction is proper under the single business enterprise theory of jurisdiction; (3) the Texas long-arm statute authorizes jurisdiction over Hoffmann in this matter; (4) the court’s exercise of jurisdiction over Hoffmann is consistent with federal and state due process standards; (5) the exercise of jurisdiction over Hoffinann comports with traditional notions of fair play and substantial justice; (6) the requisite minimum contacts with Texas exist to establish jurisdiction over Hoffinann; (7) Hoffmann purposefully availed himself of the privileges of conducting activities within Texas, thus invoking the benefits and protections of Texas law; (8) Hoffmann's Texas contacts are not random or fortuitous, or attenuated, instead the quality and nature of Hoffmann's contacts establish minimum contacts with Texas such that he could reasonably anticipate being haled into court within Texas; and (9) the court has personal jurisdiction over Hoffinann. We analyze the trial court’s conclusions of law de novo.

Alter Ego Analysis

The trial court’s first conclusion of law is that jurisdiction is proper over Hoff-mann under the alter ego theory of jurisdiction. Dandurand relies on the following statements in the petition to assert that alter ego was alleged, but not negated. Under the section titled “Factual Allegations”:

9. David H. Hoffmann is an individual resident of Illinois who, upon information and belief, has done business in the State of Texas through the corporate entities described herein which have constituted the same enterprise as the corporate entities and because he has denuded at least one of the corporate entities that did business in the state of Texas, thereby making himself liable to creditors in Texas, including Mr. Dandurand.
12. Mr. Dandurand never agreed that the liability owed to him by DHR 1 could be transferred to EPS or to any other entity, and he did not agree to absolve DHR 1 of that debt. Hoffmann, as the mover behind the corporations, reaped the benefits of the assets of DHR 1 to the detriment of Mr. Dandurand, one of the creditors of the corporation. Hoffmann was not careful about maintaining the distinction between himself and these companies.
13. Mr. Hoffmann used the corporate form in an effort to avoid personal liability for certain obligations.

Under the section titled “Causes of Action,” “Liability of Mr. Hoffmann”:

20. Mr. Hoffmann was the principal, if not the only, shareholder of DHR 1 when it was stripped of its assets and allowed to be dissolved. Mr. Hoffmann deliberately stripped DHR 1 of its assets when he allowed it to be acquired by another corporation that he ran, EPS Solutions. Mr. Hoffmann’s actions effectively rendered DHR 1 incapable of paying its debt to Mr. Dandurand, while at the same time enriching himself. Hoffmann effectively denuded DHR 1 and he is therefore liable for the debt owed to Mr. Dandurand.

Tex.R. Crv. P. 45(b) states that the plaintiffs cause of action should be “plain and concise”. Tex.R. Crv. P. 47(a) requires “a short statement of the cause of action sufficient to give fair notice of the claim involved.” Texas follows a fair notice pleading standard, which looks to whether the opposing party can ascertain from the pleadings the nature and basic issues of the controversy and what testimony will be relevant at trial. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex.2000); Schlueter, 112 S.W.3d at 168. Where, as here, the defendant is expected to negate all basis of jurisdiction, the jurisdictional basis should be pleaded clearly and concisely. The defendant cannot be expected to negate the alter ego theory of jurisdiction when it is buried in the pleadings. Dandurand has not clearly and concisely pleaded alter ego in this case. However, even though we conclude that the alter ego theory was not properly pleaded, since the trial court determined that jurisdiction was proper under the alter ego theory, we will discuss that conclusion of law.

Dandurand had the burden of proving the theory of alter ego, before the burden shifted to Hoffmann to negate it. See Torregrossa, 603 S.W.2d at 804; Le Meridien, 141 S.W.3d at 878; Ramirez, 165 S.W.3d at 915. Dandurand did not meet his burden of proving the alter ego theory, so the burden never shifted to Hoffmann to negate it. The only evidence Dandu-rand offers to support the alter ego theory is that Hoffmann is a majority stockholder, officer and director of DHR and HIC. This is insufficient to support a finding of alter ego. Goldstein, 113 S.W.3d at 781. Having thoroughly reviewed the record, we conclude there was no evidence of a failure to observe corporate formalities or a commingling of corporate and personal property. Nor was any evidence in the record to indicate that the corporation was being used for personal purposes, that it was inadequately capitalized, or that Hoffmann had failed to keep corporate and personal assets separate. Carone, 138 S.W.3d at 13; Mancorp, 802 S.W.2d at 228; Goldstein, 113 S.W.3d at 781. Although the evidence may have shown that Hoffmann was an integral participant in the operation and management of the corporations, it does not show such unity between Hoff-mann and the entities that the separateness of the corporations ceased to exist. Carone, 138 S.W.3d at 15.

The only other occasion when the alter ego analysis is used to disregard the corporate fiction is when fraud is involved. Castleberry, 721 S.W.2d at 272. Dandu-rand makes the allegation in paragraph 20 of the complaint that “Hoffmann effectively denuded DHR 1 and is therefore liable for the debt owed Mr. Dandurand.” There is no evidence in the record of denuding of corporate assets. World Broadcasting System v. Bass, 160 Tex. 261, 328 S.W.2d 863 (1959). Nor does the record reflect that Hoffmann used the corporations as an unfair device to achieve an unequitable result. Castleberry, 721 S.W.2d at 273; Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 575 (Tex.1975). This vague allegation of constructive fraud is not supported by the evidence. Dandurand has not properly pleaded or proven that Hoffmann is the alter ego of any of the corporations involved in this case.

Finally, it should be noted that the trial court also concluded the corporate fiction could be disregarded and that jurisdiction was proper under the single business enterprise theory. Since we have already determined that there was no evidence contained in the record to support this theory, we need not decide the merits of that theory as it applies to the facts presented. Haught, 39 S.W.3d at 263. The record does not support any theory for disregarding the corporate fiction in this case.

Analysis of General and Specific Personal Jurisdiction

The remainder of the trial court’s conclusions of law are directed at the assertion of general and specific jurisdiction over Hoffman individually. Therefore, we must analyze whether, absent the alter ego theory or any other basis for disregarding the corporate fiction, the trial court has personal jurisdiction over Hoffmann based on the facts presented.

The record reflects that Hoffmann was born in Missouri and has lived in Missouri and Illinois. He has never maintained any place of business in Texas nor had any officers, agents, or employees in Texas. He has never engaged in business with Texas, nor has he committed a tort in Texas. He has been to Texas no more than five times. He has spent no more than seven days total in Texas during his life. He had telephone conversations with Hoffmann in Dallas. Some of the conversations were initiated by Hoffmann, some were initiated by Dandurand.

Hoffmann argues that any Texas contacts made by him were not in his individual capacity and therefore may not be used as a basis for the exercise of general jurisdiction based on the “fiduciary shield doctrine.” In the absence of fraudulent or tortuous acts, an individual’s transacting business within the state solely on behalf of a corporation does not create general jurisdiction over that individual. See Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir.1985); Siskind v. Villa Foundation for Educ. Inc., 642 S.W.2d 434, 438 (Tex.1982); Tuscano v. Osterberg, 82 S.W.3d 457, 467-68 (Tex.App.-El Paso 2002, no pet.); Leon, 862 S.W.2d at 708. Hoffmann's contacts with the forum in this case were solely in his capacity as an officer and director of Illinois-based corporations. There is no basis for the trial court to exercise general jurisdiction over him.

Additionally, for purposes of specific jurisdiction, Hoffmann did not purposefully avail himself of the privilege of conducting activities within the state. Michiana, 168 S.W.3d at 785. The record reflects that Hoffmann had very limited contacts with Texas. He entered into a contract on behalf of DHR, an Illinois corporation, with a Texas resident. Simply contracting with a Texas resident alone is not enough. Burger King, 471 U.S. at 478, 105 S.Ct. 2174. Additionally, Hoffmann made several phone calls and business trips to Texas, but even those limited contacts did not necessarily arise from the contract in question. Hoffmann’s conduct as it is related to the forum was random, isolated and fortuitous. Michiana, 168 S.W.3d at 785. There is no evidence in the record that Hoffmann sought benefit, advantage, or profit by availing himself of the benefits and protections of Texas in the enumerated transactions. Id. at 785.

Since we have concluded that alter ego was improperly pleaded and the evidence is insufficient to support a finding that Hoffmann was the alter ego of DHR or HIC, in the absence of the alter ego theory, Hoffmann, in his individual capacity, did not have minimum contacts with this state sufficient to confer personal jurisdiction over him. Leon, 862 S.W.2d at 708. Finding this, we do not need to discuss whether the exercise of jurisdiction would comport with traditional standards of fair play and substantial justice. See Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154.

Conclusion

The judgment of the trial court denying the special appearance of Hoffmann is reversed and we render judgment dismissing Dandurand’s claims against Hoffmann for lack of personal jurisdiction.

      . Dandurand conceded that Riverwalk’s special appearance was appropriate and the trial court dismissed it from the lawsuit.

      . Finding of Fact 55 and 56 refer to Hoff-mann’s failure to produce documents. Hoff-mann affirms that the documents have not been produced because they are not within his custody or control. Nevertheless, these contested findings of fact are supported by the evidence.

      . In the record, DHR, prior to its purchase by EPS, is sometimes referred tó as DHR 1.

      . We address this allegation of fraud since it is alleged by Dandurand as part his alter ego analysis. It is important to note, however, than alter ego was not properly pleaded in this case.


source: Caselaw Access Project

author: Justice WHITTINGTON.

license: Public Domain

text:
    L. Mark STEINBERG, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
    No. 05-04-01696-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2005.

      Charles W. McGarry, Law Office of Charles McGarry, Dallas, for Appellant.
    Deanne Claire, Commission for Lawyer Discipline, Dallas, Linda A. Acevedo, Office of the Chief Disciplinary Counsel, Austin, for Appellee.
    Before Justices WHITTINGTON, FRANCIS, and LANG.
   OPINION

Opinion by

Justice WHITTINGTON.

In this appeal of a lawyer disciplinary proceeding, appellant L. Mark Steinberg contends collateral estoppel barred the claims of appellee Commission for Lawyer Discipline, and the evidence was legally and factually insufficient to support the jury’s findings on two issues. We hold collateral estoppel does not bar the Commission’s claims, and there was legally and factually sufficient evidence to support the jury’s findings. We affirm the judgment of the trial court.

BACKGROUND

Steinberg was admitted to practice law in Texas in 1980. He was disbarred in 1985. He was reinstated to the Texas bar in 1996. He has never been admitted to practice law in Arizona. In 2000, the State Bar of Texas filed a grievance against Steinberg. A jury found Steinberg violated Rules 8.01 and 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct. See Tex. DisciplinaRY Rs. PROf’l Conduct 8.01, 8.04(a)(3), reprinted, in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Ban R. art. X, § 9). The trial judge entered judgment suspending Steinberg from the practice of law for five years.

Standards of Review

In his first issue, Steinberg contends the trial judge erred in denying his motion for judgment notwithstanding the verdict because the Commission’s claims were barred by collateral estoppel. In his second and third issues, Steinberg challenges the legal and factual sufficiency of the evidence to support the jury’s findings. We review both the denial of a motion notwithstanding the verdict and a challenge to the legal sufficiency of the evidence as “no evidence” points of error. See Sherman v. First Nat’l Bank, 760 S.W.2d 240, 241-42 (Tex.1988) (denial of judgment notwithstanding the verdict); Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380, 385 (Tex.App.-Dallas 2003, pet. denied) (legal sufficiency of the evidence); see also Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987) (judgment notwithstanding verdict proper when no evidence supports jury’s findings or when movant is entitled to judgment as matter of law). A legal sufficiency review of both a judgment notwithstanding the verdict and a no-evidence point of error must credit the favorable evidence if reasonable jurors could, and disregard the contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005).

When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the appealing party did not have the burden of proof, the appellant must demonstrate there is insufficient evidence to support the adverse finding. Bellino, 124 S.W.3d at 385. In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding, and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Bellino, 124 S.W.3d at 385. In making this review, we are not a fact finder. Thus, we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.); Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.-Dallas 2000, pet. denied).

Discussion

In his first issue, Steinberg contends principles of collateral estoppel preclude the Commission’s disciplinary action here, because the same issues were determined in a 1996 proceeding reinstating Steinberg to the bar. The doctrine of collateral estoppel or issue preclusion is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of issues. Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994). A party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Sysco Food Services, 890 S.W.2d at 801. Steinberg further contends principles of res judicata prohibit relitigation of any claim or defense that could have been litigated in the first suit. We hold principles of collateral estoppel and res judicata do not bar the Commission’s action.

Steinberg cites Board of Law Examiners v. Gabriel, 953 S.W.2d 227 (Tex.1997) (original proceeding), to support his argument that the reinstatement proceedings determined the same issues presented to the trial court in this case. Gabriel, however, is distinguishable. In Gabriel, the issue was whether the Board of Law Examiners was authorized by the Rules of Disciplinary Procedure to investigate the moral character and the mental and emotional fitness to practice law of a person petitioning for reinstatement to membership in the State Bar of Texas. Gabriel, 953 S.W.2d at 227. The court held the Board of Law Examiners was not authorized to make the investigation because a trial court had already made the same determination in ruling on the petition for reinstatement. Gabriel, 953 S.W.2d at 227, 230. The court described the two “core findings” a trial court must make in determining a petition for reinstatement. First, the trial court must find that “ ‘petitioner is of good moral character, possesses the mental and emotional fitness to practice law, and during the five years immediately preceding the filing of the petition, has been living a life of exemplary conduct.’ ” Gabriel, 953 S.W.2d at 229-30 (quoting Tex.R. Disciplinary P. 11.02.E). Second, the district court must find “that reinstatement serves [the] public’s and profession’s interests and the ends of justice.” Gabriel, 953 S.W.2d at 230. The Board of Law Examiners would have been determining precisely the same issue, that is, the applicant’s moral character and fitness. See Gabriel, 953 S.W.2d at 229. Therefore, the Board of Law Examiners was not permitted under the Rules of Disciplinary Procedure to redetermine “issues that courts have just tried.” Gabriel, 953 S.W.2d at 230.

When Steinberg petitioned for reinstatement in 1996, the court must have determined the two core findings set forth in Gabriel In contrast to Gabriel, however, Steinberg requests we compare those core findings with the jury’s findings he engaged in professional misconduct. The jury was not asked to determine Stein-berg’s moral character; whether he was mentally and emotionally fit to practice law; or whether his reinstatement to the bar would serve the public’s and the profession’s interests. See Gabriel, 953 S.W.2d at 229-30. Instead, the jury was asked to determine whether Steinberg engaged in “conduct involving dishonesty, fraud, deceit or misrepresentation” in violation of Rule 8.04(a)(3), and whether he made a false statement of material fact on his petition for reinstatement or failed to correct a misapprehension in violation of Rule 8.01.

Steinberg argues the truth and honesty of his reinstatement petition “were among the core, essential issues determined” in the reinstatement proceeding in 1996, and the jury here merely redetermined the same issues. We disagree. The reinstatement action was a petition by a person not licensed as a lawyer arguing “the best interests of the public and the profession, as well as the ends of justice, would be served by his or her reinstatement.” Tex.R. Disciplinaey P. 11.03. The disciplinary proceeding is a petition by the Commission alleging professional misconduct by a lawyer. Although in determining the petition for reinstatement, “the court shall deny the petition ... if it contains any false statement of material fact,” Tex.R. Disciplinaey P. 11.03, Rule 8.01 of the Rules of Professional Conduct specifically permits a disciplinary action against a lawyer who engaged in improper conduct in the reinstatement process. See Tex. Disciplinary R. PROf’l Conduct 8.01. As noted in the comments to Rule 8.01, “[hjenee, if a person makes a material false statement in connection with ... a petition for reinstatement, it may be the basis for a subsequent disciplinary action if the person is admitted or reinstated_” Tex. Disciplinary R. PROf’l Conduct 8.01 cmt. 1. In Gabriel, in contrast, the court noted under the rules governing admission to the bar, the Board of Law Examiners had a duty to investigate the moral fitness of candidates for admission, not candidates for reinstatement. See Gabriel, 953 S.W.2d at 229. The court’s finding in 1996 that Steinberg should be reinstated does not preclude the Commission’s disciplinary action here. We overrule Steinberg’s first issue.

In his second issue, Steinberg contends the evidence was legally and factually insufficient to support the jury’s finding he violated Rule 8.04(a)(3), Texas Disciplinary Rules of Professional Conduct. Rule 8.04(a)(3) provides, “A lawyer shall not: ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In support of the jury’s finding, the Commission cites evidence Steinberg held himself out as an Arizona attorney even though he has never been licensed to practice law there. The Commission points to an advertisement in the yellow pages telephone directory for Phoenix and Scottsdale, Arizona, in the “attorney” section, displaying Steinberg’s name in large type above the text, “ *Bankruptcy — Divorce— D.W.I. — D.U.I.—Criminal, Free Phone Consultation, Flat Fee-Not Hourly, Serious Personal Injuries Matters, Aggressive Full Service Firm, Easy Payment Plans Available.” In small type at the bottom of the advertisement, in connection with the asterisk in the text, appears “ *Law Offices of Russell Olds.” The address given in the advertisement is Steinberg’s home address. The Commission also cites evidence showing Steinberg was listed in the same telephone directory under “Attorneys-Divorce and Family,” and “Attorneys.” Steinberg used a printed business card with the designation “Lawyer” which contained both a Texas address, crossed out, and an Arizona address, with “Frost Law Offices” handwritten above Stein-berg’s name. The card did not reveal Steinberg did not have an Arizona license. Fran JoHanson, an attorney for the State Bar of Arizona who worked in the area of unauthorized practice of law, testified she visited the “Frost Law Offices” where Steinberg worked and learned that Mr. Frost was rarely there. She testified it appeared as if Steinberg was the only lawyer who worked there. Edwin Blair hired Steinberg to represent him in a divorce. The jury heard Blair’s testimony he found Steinberg through an advertisement in a consumer circular under the section for lawyers. Blair testified he believed Stein-berg was an Arizona lawyer, and Steinberg never told him otherwise. Blair testified he learned Steinberg was not licensed in Arizona only when another person called the Arizona State Bar. Thus, while Stein-berg maintains he acted only as a paralegal or document preparer under the supervision of Arizona attorneys Olds and Frost, there was evidence he held himself out a lawyer licensed to practice in Arizona. Further, the Commission introduced a 2001 consent decree between Steinberg and the Arizona Attorney General in which Steinberg admitted no liability but agreed to be permanently enjoined from advertising the sale of legal services; from engaging in legal services as described in the decree; from holding himself out as one who may practice law in Arizona; and from engaging in any misrepresentations or deceptive acts or practices in violation of Arizona consumer fraud law.

Steinberg argues we may not consider this evidence because the trial judge, by wording the judgment narrowly, implicitly granted Steinberg’s motion for judgment notwithstanding the verdict and ruled the only conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.04(a)(3) occurred in connection with Steinberg’s reinstatement to the Texas bar, and not in connection with any other activities. Steinberg cites Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex.1992), in support of this argument. In Delaney, a summary judgment case, the court refused to consider two additional legal arguments where the factual record did not supply a sufficient predicate and the district court did not base its summary judgment on those arguments. See Delaney, 835 S.W.2d at 58-9. Here, in contrast, the judgment was entered after a jury trial in which the jury heard evidence from both sides and found, in response to a question in the charge that was not limited to Steinberg’s reinstatement, that Stein-berg violated Rule 8.04(a)(3). Under Rules 300 and 301, Texas Rules of Civil Procedure, the judgment must “conform to the pleadings, the nature of the case proved and the verdict.” See Tex.R. Civ. P. 301. The trial judge may render judgment notwithstanding the verdict only “if a directed verdict would have been proper,” Tex.R. Civ. P. 301; that is, if no evidence supports the jury’s finding. See Exxon Corp., 726 S.W.2d at 19. Here, as noted below, there was evidence to support the jury’s- finding Steinberg violated Rule 8.04(a)(3). The judgment must conform to that finding, and we construe it to do so. See Tex. Rs. Crv. P. 300, 301; see also Teas v. Republic Nat’l Bank of Dallas, 460 S.W.2d 233, 239-40 (Tex.Civ.App.-Dallas 1970, writ ref'd n.r.e.) (where issue material, judgment must conform to findings); Harris County v. Garza, 971 S.W.2d 733, 735 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (judge may not disregard jury’s answers to material issues, set aside findings and make contrary ones, hear additional evidence and make supplemental findings, or select from conflicting findings those which he approves).

Steinberg further argues even if the Commission’s evidence is considered, it does not support the jury’s finding he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. He contends the business card accurately stated he was a lawyer associated with the Frost Law Offices. He argues the yellow pages ad does not state he is an attorney or is licensed in any state, accurately reflecting only that he has a law degree. He argues it was legal in Arizona for him to do the type of work he did. He also argues there was no evidence he made any misrepresentation to Blair about whether he was licensed to practice law in Arizona.

The jury considered the evidence presented by the Commission and by Stein-berg and found he violated Rule 8.04(a)(3), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The evidence presented would have enabled reasonable and fair-minded people to concluded Steinberg violated Rule 8.04(a)(3), and the jury’s finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See City of Keller, 168 S.W.3d at 827; Bellino, 124 S.W.3d at 385. We overrule Steinberg’s second issue.

In his third issue, Steinberg contends the evidence was legally and factually insufficient to support the jury’s finding he violated Rule 8.01, Texas Disciplinary Rules of Professional Conduct. Rule 8.01 provides in relevant part:

[A] petitioner for reinstatement to the bar ... shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admission, reinstatement, or disciplinary authority....

The Commission argues at the time he filed his petition for reinstatement to the Texas Bar, Steinberg failed to disclose he was under investigation by the Arizona Attorney General for allegations of consumer fraud relating to the sale of legal services. The Commission also argues Steinberg failed to disclose a pending suit involving a fee dispute.

Steinberg testified at the time he filed his petition for reinstatement to the State Bar of Texas in 1995, he was aware there was an action pending with the consumer fraud division of the Arizona Attorney General’s office “where they were looking into consumer fraud for sale of legal services” but did not include that information in his petition. He testified he did not amend the petition to include this information. He also testified he signed an “assurance of discontinuance” with the Arizona Attorney General’s office in 1995 under which he admitted no liability, but agreed he “must tell people that I am not a licensed attorney in the State of Arizona.” He testified “the issue came up in the proceeding,” contending that the State Bar of Texas was made aware of the Arizona agreement even though the petition did not include information about it. Steinberg’s attorney during the reinstatement proceeding, however, testified he did not recall anything about allegations of consumer fraud made against Steinberg by the Arizona Attorney General and would have included that information in the reinstatement petition if he had been aware of it. While as Steinberg notes, the Commission failed to introduce any documentary evidence of the assurance of discontinuance or the subpoena served by the Arizona Attorney General, Steinberg himself admitted these facts. This evidence “would enable reasonable and fair-minded people to reach the verdict” Stein-berg violated Rule 8.01, see City of Keller, 168 S.W.3d at 827, and the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Bellino, 124 S.W.3d at 385. We overrule Steinberg’s third issue.

We affirm the judgment of the trial court.


author: Justice LANG-MIERS.

text:
    Robert ARMSTRONG d/b/a RNA Investments, Appellant, v. Oscar Butch BENAVIDES, Appellee.
    No. 05-05-00089-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2005.

      Byron Kevin Henry, Dallas, for Appellant.
    Kayo Mullins, Dallas, for Appellee.
    Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
   OPINION

Opinion by

Justice LANG-MIERS.

In this restricted appeal, Robert Armstrong d/b/a RNA Investments appeals from a default judgment granted in favor of Oscar Butch Benavides. In three issues, Armstrong contends the evidence is legally insufficient and the trial court erred by awarding attorney’s fees. We reverse and remand for a new trial.

Background

In April 2003, Benavides filed a lawsuit against Armstrong and a man named Billy Greer in which he alleged they took possession of property he owned and converted it to their use and benefit. He attached a list of the property and alleged it had a fair market value of $35,000.00.

The record shows Armstrong was served with process on November 29, 2003. On December 26, 2003, Armstrong wrote a letter to the court in which he denied being the owner of the building in which the property was located at the time Benavides leased a restaurant there but admitted he became the owner in 2001. Benavides’s brief states the trial court construed Armstrong’s letter as an answer and set the case for trial on July 12, 2004. Armstrong did not appear for trial. Bena-vides testified at trial about the facts leading up to the lawsuit and his damages, after which the trial court granted him a default judgment, which provided in relevant part:

Defendant, ROBERT ARMSTRONG, D/B/A RNA INVESTMENTS, although duly and properly cited, did not appear and wholly made default.
The Court, after examining the record and hearing the evidence and argument of counsel, finds that it has jurisdiction of this case and of all the parties. All questions of fact and of law were submitted to the Court. All persons entitled to citation were properly cited.
The Court finds that the allegations set out in Plaintiff[’]s Original Petition are true, that Plaintiff was damaged in the amount of $22,000.00 by Defendant’s tortious interference with Plaintiffs property. The court further finds that it was necessary for Plaintiff to retain an attorney to prosecute this suit and that a reasonable attorney’s fee for the work is $5,000.00.

Six months after the judgment was signed, Armstrong filed a notice of restricted appeal in which he challenged the legal sufficiency of the evidence to support the judgment and the trial court’s award of attorney’s fees.

STANDARD OP REVIEW AND APPLICABLE LAW

A restricted appeal is a direct attack on the trial court’s judgment. Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex.1991); Sutton v. Hisaw & Assoc. Gen. Contractors, Inc., 65 S.W.3d 281, 284 (Tex.App.-Dallas 2001, pet. denied). A restricted appeal must (1) be brought within six months after the trial court signs the judgment, (2) by a party to the suit, (3) who did not participate in the actual trial, and (4) the error complained of must be apparent on the face of the record. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997); see Tex.R.App. P. 30 & 26.1(c). Benavides does not dispute that Armstrong satisfied the first three elements, so this appeal focuses on whether error is apparent on the face of the record. The face of the record consists of all of the papers on file in the appeal. Norman Commc’ns, 955 S.W.2d at 270. A restricted appeal includes a review of the entire case, including legal sufficiency claims. Id.

The standards governing no-answer and post-answer default judgments differ greatly. If a no-answer default judgment is entered, the non-answering party is deemed to have admitted the facts properly pleaded. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979). On the other hand, in a post-answer default judgment case, the plaintiff must offer evidence and prove his case as in a trial; judgment cannot be entered on the pleadings. See id.

The record is unclear whether the trial court granted a no-answer or post-answer default judgment. Because the parties appear to treat the judgment as a post-answer default judgment, we address Armstrong’s contentions under that standard. Under the standard governing post-answer default judgments, Benavides had the burden to prove both liability and damages. See id.; Walker v. Kleiman, 896 S.W.2d 413, 415 (Tex.App.-Houston [1st Dist.] 1995, no writ).

Legal Sufficiency of the Evidence

The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In our review of the evidence, we “credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. If there is more than a scintilla of evidence to support the verdict, we uphold the judgment. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). Evidence is no more than a scintilla when it is “so weak as to do no more than create a mere surmise or suspicion of the fact’s existence.” Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex.1970) (quoting Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 363 (1960)).

Armstrong contends the record is unclear whether Benavides sued under a trespass to chattels or conversion theory but argues the evidence is legally insufficient under either theory. A trespass to chattels is a wrongful interference with or injury to property that causes actual damage to the property or deprives the owner of its use for a substantial period of time. Omnibus Int’l, Inc. v. AT & T, Inc., 111 S.W.3d 818, 826 (Tex.App.-Dallas 2003, pet. granted, judgm’t vacated w.r.m.). Conversion is the unauthorized and unlawful exercise of dominion and control over the personal property of another to the exclusion of and inconsistent with the owner’s rights in the property and requires the defendant to pay the full value of the property. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex.1971); Robinson v. Nat’l Autotech, Inc., 117 S.W.3d 37, 39 (Tex.App.-Dallas 2003, pet. denied).

In his original petition, Benavides alleged that Armstrong took possession of the property and converted it to his use and benefit. Additionally, Benavides sought damages in the full amount of the property’s value. For these reasons, the record supports the conclusion that Bena-vides sued Armstrong for conversion, not trespass to chattels. See Omnibus Int’l, Inc., 111 S.W.3d at 826 (conversion when defendant must pay full value of property and trespass to chattels when he does not); Russell v. Am. Real Estate Corp., 89 S.W.3d 204, 210 (Tex.App.-Corpus Christi 2002, no pet.) (discussing both theories). The trial court’s judgment that Armstrong tortiously interfered with Benavides’s property supports either theory.

At trial, Benavides testified that he leased space from Armstrong in which he operated a restaurant. He subsequently sold the restaurant to new buyers, retaining a note for the sales price secured by the equipment and fixtures. Benavides filed a UCC statement to secure his lien on this property, and Armstrong executed a waiver of landlord’s hen on the property. Armstrong’s waiver was admitted in evidence. Benavides also testified that because Armstrong retained the right to cure the buyers’ default within thirty days of notice, Benavides sent Armstrong a letter notifying him of the buyers’ default and advising he would remove the property if Armstrong did not cure the default. Armstrong did not exercise his option within thirty days, so Benavides and his attorney called him. Armstrong did not return their calls. Some time later, Benavides received a call from Greer who said he was leasing the space from Armstrong and asked about buying the equipment and fixtures. Benavides told Greer how much we was willing to accept to sell him the property but Greer never called him back.

Despite evidence that Armstrong signed a waiver of landlord’s lien with respect to that property, had no possessory right to the property and did not have authority to permit Greer to use the property, there is no evidence that Armstrong permitted Greer to use the equipment and fixtures located in the restaurant. See Waisath, 474 S.W.2d at 447 (landlord had no posses-sory right in tenant’s property not included in its liens). Additionally, although Be-navides sent Armstrong a demand letter to either pay the amount due or Benavides would remove the property, there is no more than a scintilla of evidence Benavides demanded return of the property. And although his counsel asked him whether signs had been destroyed and Benavides testified that Armstrong took signs down, there is no evidence about what ultimately happened to the signs or to the other fixtures and equipment or that Armstrong took any action inconsistent with Bena-vides’s rights to the property.

As a result, we conclude there is no more than a scintilla of evidence that a conversion occurred based on Armstrong’s unauthorized use of the property. Accordingly, we conclude the evidence is not legally sufficient to support Benavides’s claim for conversion. We sustain Armstrong’s first issue. Because of our decision regarding Armstrong’s first issue, we do not address the remaining issues.

Generally when an appellate court sustains a legal sufficiency issue, the remedy is to reverse and render. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex.1992); U.S. Fire Ins. Co. v. Carter, 473 S.W.2d 2, 3 (Tex.1971). However, an exception is made in cases involving default judgments because the facts have not been fully developed. Heine, 835 S.W.2d at 86; Carter, 473 S.W.2d at 3. Accordingly, we reverse and remand for a new trial.

Conclusion

We sustain Armstrong’s first issue concerning liability for conversion and reverse and remand for a new trial.

      . Greer answered the lawsuit and was non-suited after he and Benavides reached a confidential settlement agreement. Greer is not a party to this appeal.


author: Chief Justice VALDEZ.

text:
    CAPPADONNA ELECTRICAL MANAGEMENT, Metro Electric, Durrant Architect, Inc., J—III Concrete Company, Inc., Commercial Roofing Systems, et al., Appellants, v. CAMERON COUNTY, Appellee. In re Cappadonna Electrical Management, et al.
    Nos. 13-05-165-CV, 13-04-578-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 1, 2005.

      Beth Watkins Squires, David P. Benjamin, Brent A. Biggs, O’Connell & Benjamin, Ricardo R. Reyna, Thomas A. Mail-loux, John A. Guerra, Robert A. Pollom, Brock & Person, PC, K Blake Coffee, Shelton & Valadez, Nissa M. Dunn, Crofts & Callaway, San Antonio, Clay E. Coal-son, Donnell, Abernethy & Kieschniek, PC, Lawrence A. Coffey, Frank E. Weathered, Dunn & Weathered, Corpus Christi, Fred L. Shuehart, M. Lane Lowrey, Jessica Moore, Johnson, Ferguson, Pipkin & Phillips, Martin S. Schexnayder, Steve Sonsik Hwang, Houston, Joe Gamez, Donnell, Aberneth & Kieschniek, PC, Keith C. Livesay, Liza Michelle Vasquez, Roerig Olivera & Fisher, LLP, Gary R, Gurwitz, Daniel G. Gurwitz, Atlas & Hall, McAllen, Miguel Salmas, Ewing Edben Sikes III, Royston, Razor, Vickery & Williams, Brownsville, Noe Reyes, Robert Moran, R.E. Lopez, Jr., Lopez Peterson, PLLC, Rene Carlo Benavides, Laredo, Craig A. Nevelow, Lisa M. Doering, Wright & Greenhill, P.C., Richard Ellis, III, Timothy B. Poteet, Austin, Moisés R. Hernandez, Hernandez Law firm, Edinburg, Roger C. Davie, Ray, Valdez, McChristian & Jeans, El Paso, Cindy A. Garcia, The Garcia Law Firm, P.C., Jaime Balli, Harlin-gen, for appellants.
    Benigno Trey Martinez, Martinez, Barrera & Martinez, Brownsville, Jane M.N. Webre, Scott, Douglass McConnico, L.L.P., Austin, for appellee.
    John E. Pipkin, Johnson, Ferguson, Pip-kin & Phillips, Houston, for Landmark Organization.
    Before Chief Justice VALDEZ and Justices HINOJOSA and GARZA.
   OPINION

Opinion by

Chief Justice VALDEZ.

This dispute originally arose between Cameron County and Landmark Organization, L.P., a general construction contractor, in connection with damages allegedly sustained by the County following the construction of a new county jail complex. Cameron County, when filing suit against Landmark, also sued various subcontractors (“the Subcontractors”) under claims of negligence, negligence per se, breach of express warranty, and breach of fiduciary duty. Landmark then filed claims for contribution and indemnity against the Subcontractors, who in turn filed cross-claims for contribution and indemnity against Landmark.

Landmark and the Subcontractors both filed motions to compel arbitration. On October 29, 2004, respondent, the Honorable Abel C. Limas of the 404th District Court of Cameron County, Texas, signed an order (1) denying the Subcontractors’ motions to compel arbitration, (2) granting Landmark’s motion to compel arbitration with the County, and (3) severing the County’s claims against Landmark into a separate lawsuit. The order did not specify whether the Subcontractors’ claims regarding arbitration were governed by the Federal Arbitration Act (“FAA”) or the Texas General Arbitration Act (“TAA”).

The Subcontractors then filed two parallel proceedings seeking relief from the October 29 order. In order to invoke this Court’s jurisdiction for an appeal under the FAA, the Subcontractors filed a petition for writ of mandamus, docketed as Cause No. 13-05-165-CV. Also, in order to invoke this Court’s jurisdiction for an appeal arising under the TAA, the Subcontractors filed an interlocutory appeal, docketed as Cause No. 13-04-578-CV. In accordance with the instructions of the supreme court for such cases, we "will consolidate the two proceedings and render a decision disposing of both simultaneously, thereby conserving judicial resources and the resources of the parties. See In re Valero Energy Corp., 968 S.W.2d 916, 917 (Tex.1998).

Most of the Subcontractors involved in the case have filed separate briefs; however, because the briefs raise the same contentions and arguments, we will address them all together.

Jurisdiction

We first must consider the question of our jurisdiction over this combined appeal and original proceeding. An interlocutory appeal is an appropriate vehicle to review an order denying arbitration under the TAA. See Tex. Civ. Prac. & Rem. Code Ann. §§ 171.021, 171.098(a)(1) (Vernon 2005). Mandamus is appropriate to review an order denying arbitration when the FAA applies. See In re Valero, 968 S.W.2d at 916 (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992) (orig.proceeding)); In re MONY Secs. Corp. v. Durham, 83 S.W.3d 279, 282 (Tex.App.-Corpus Christi 2002, combined appeal & orig. proceeding). The arbitration agreement in the present case does not specifically invoke either the FAA or the TAA, and the trial court made no finding as to which act applies.

The FAA will govern an arbitration agreement contained in a contract evidencing a transaction involving commerce. See In re MONY, 83 S.W.3d at 282. A contract “evidences a transaction involving commerce” if it involves interstate commerce. Id. (citing Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 277-81, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)). Here, the Subcontractors argue that the transaction involved interstate commerce because several subcontractors were out-of-state parties and because materials had to be shipped to Texas from other states. The County, in its appellate brief, does not respond to this argument directly but instead notes that if this Court determines that the transaction did not involve interstate commerce and must be reviewed under the TAA, we will not have jurisdiction to review the order of severance.

We conclude that interstate commerce was clearly involved in the construction of the county jail complex, and therefore the arbitration provisions at issue in both contracts are subject to the FAA. See In re MONY, 83 S.W.3d at 282-83; see also Serv. Corp. Int’l v. Lopez, 162 S.W.3d 801, 807-08 (Tex.App.-Corpus Christi 2005, no pet.) (listing types of interstate activity from prior cases that have served to establish interstate commerce and thus invoke the FAA). Thus, mandamus is the appropriate vehicle for relief. See In re MONY, 83 S.W.3d at 282-83. Accordingly, we dismiss the interlocutory appeal in Cause No. 13-04-578-CV for want of jurisdiction. See id. at 283. We will address only the petition for writ of mandamus.

Mandamus

The Subcontractors allege in their petitions for writ of mandamus that the trial court erred and abused its discretion when it entered the order denying Subcontractors’ motion to compel arbitration because of the application of the doctrines of (1) incorporation by reference and (2) equitable estoppel. Additionally, the Subcontractors argue the following: the trial court erred by entering the order to sever the Subcontractors’ suit from Landmark’s suit; the Subcontractors have not waived their right to arbitrate; the arbitration agreement is not unconscionable; and respondent Judge Limas’s findings regarding security problems at the jail lack evi-dentiary support and are immaterial to the question of whether the Subcontractors are entitled to arbitration. For all of these reasons, the Subcontractors argue they are entitled to a writ of mandamus reversing the trial court’s decision and allowing them to arbitrate their claims.

Mandamus will issue only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Redondo, 47 S.W.3d 655, 658 (Tex.App.Corpus Christi 2001, orig. proceeding). “A trial court abuses its discretion when it does not follow guiding rules and principles and reaches an arbitrary and unreasonable decision.” Id. Mandamus relief is available to a party who is improperly denied arbitration under an agreement subject to the FAA. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 88 (Tex.1996).

A party seeking to compel arbitration must (1) establish the existence of an arbitration agreement and (2) show that the claims asserted fall within the scope of that agreement. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999) (orig.proceeding); In re C & H News Co., 133 S.W.3d 642, 645 (Tex.App.-Corpus Christi 2003, orig. proceeding). Although courts generally enforce arbitration agreements, a court may not order arbitration in the absence of such an agreement. See Freis v. Canales, 877 S.W.2d 283, 284 (Tex.1994). The parties’ agreement to arbitrate must be clear. See Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 835 (Tex.App.-Houston [1st Dist.] 2002, no pet., combined appeal & orig. proceeding). If one party denies that there is a binding arbitration agreement, the trial court may summarily decide whether to compel arbitration on the basis of uncontroverted affidavits, pleadings, discovery, and stipulations. See Jack B. Anglin Co., 842 S.W.2d at 269. Whether there is an enforceable agreement to arbitrate is a question of law and is therefore reviewed de novo. See Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 388 (Tex.App.-Houston [14th Dist.] 1998, pet. dism’d w.o.j.).

The Texas Supreme Court noted that there are six recognized theories that may be used to bind non-signatories to arbitration agreements: (1) incorporation by reference, (2) assumption, (3) agency, (4) alter ego, (5) equitable estoppel, and (6) third-party beneficiary. See In re Kellogg, Brown & Root, 166 S.W.3d 732, 739 (Tex.2005). These six theories arise out of federal law principles of contract and agency law but are to be applied by state courts reviewing arbitration disputes under the FAA. See id. The Subcontractors here allege that they are entitled to arbitration under the theories of incorporation by reference and equitable estoppel.

Incorporation by Reference

Under the doctrine of incorporation by reference, where one contract refers to another contract or instrument, the second document may properly constitute part of the original contract. See City of Port Isabel v. Shiba, 976 S.W.2d 856, 858 (Tex.App.-Corpus Christi 1998, pet. denied). Disputes relating to this doctrine often raise questions of contract interpretation. See, e.g., In re C & H News Co., 133 S.W.3d 642, 645 (Tex.App.-Corpus Christi 2003, orig. proceeding). In construing the Subcontractors’ rights and duties under their subcontracts, our primary concern is to ascertain and give effect to the intentions of the parties as expressed in the subcontract. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). To ascertain the true intentions of the parties to the subcontract, we examine the entire agreement in an effort to harmonize and give effect to all of the provisions of the contract so that none will be rendered meaningless. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). When a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous, and courts construe it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).

In the trial court’s order granting Landmark’s motion to compel arbitration and denying the Subcontractors’ motions to compel, the court found that there was a two-part “Prime Contract” between Cameron County and Landmark consisting of a standard form agreement and a standard list of contractual conditions. The conditions include the following provision regarding arbitration:

Any claims, disputes, or controversies between the parties arising out of or relating to the Agreement, or the breach thereof, which have not been resolved ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the AAA then in effect, unless the parties mutually agree otherwise.

Based on this agreement, the trial court found that there was an enforceable agreement to arbitrate between Landmark and Cameron County, and it accordingly ordered arbitration.

However, the trial court also found that the Subcontractors “are not parties to the Prime Contract between the County and Landmark, and the Subcontractors are thus not parties to the arbitration clause in the Prime Contract.” The trial court based its findings on the following express provision in the Prime Contract:

Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner [the County] and any Design Consultant_ Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner [the County] and any Subcontractor or Sub-Subcontractor including but not limited to any third-party beneficiary rights.

The trial court also found that the standard form subcontracts enacted between Landmark and the Subcontractors did not attempt to incorporate the terms of the Prime Contract into the subcontracts.

The Subcontractors characterize this finding as “inexplicable,” noting that the standard form subcontracts signed by themselves and Landmark contain the following provision:

Insofar as the provisions of the General Contract do not conflict with specific provisions herein contained, they and each of them are hereby incorporated into this subcontract as fully as if completely re-written herein, except that all of said non-conflicting provisions are amended as follows: wherever the “Owner” is referred to therein, the word “Contractor” shall be substituted therefor, and wherever the “Contractor” is referred to therein the word “Subcontractor” shall be substituted therefor. The Subcontractor agrees not to violate any term, covenant, or condition of the General Contract.

The Subcontractors refer to this provision as the “incorporation provision” and argue that it serves to contractually bind them to the arbitration agreement signed by Cameron County and Landmark.

We disagree. The incorporation provision of the standard form subcontract clearly borrows some of the terms of the general contract between Cameron County and Landmark but is nonetheless a different and separate contract between the Subcontractors and Landmark. The incorporation provision does not, however, create a relationship between the Subcontractors and the County, nor does it impose any duties or obligations on the Subcontractors with respect to the County. All references to Cameron County are in fact explicitly removed from the language of the subcontract by operation of the incorporation provision. Furthermore, we find it significant that the incorporation provision first dictates the removal of all mention of the County so that only Landmark and the Subcontractors are named parties in the contract, and then adds that the Subcontractor agrees not to violate any term of that amended, Cameron County-less contract. Thus, not only does the Prime Contract signed by Cameron County specifically disclaim any contractual relationship with a subcontractor, the subcontract signed by the Subcontractors contains no reference to the County or to the County’s relationship with Landmark.

This conclusion is in line with the cases cited by the Subcontractors for support of their incorporation-by-reference argument, i.e., In re C & H News Co., 133 S.W.3d at 645, and Teal Constr. Co. v. Darren Casey Interests, Inc., 46 S.W.3d 417, 420 (Tex.App.-Austin 2001, pet. denied). The In re C & H News Co. opinion from this Court recognized incorporation by reference in the context of arbitration clauses, but only to the extent that a signatory to the agreement could be bound by an arbitration clause in the incorporated document. See In re C & H News Co., 133 S.W.3d at 645-47. The Teal Constr. Co. case also held that a document incorporated by reference in a contract could bind a party who has signed that contract. See Teal Constr. Co., 46 S.W.3d at 420. Applying the reasoning from those previous cases here, only the Subcontractors and Landmark, as signatories to the subcontract, would be bound by the arbitration clause incorporated into their subcontracts. In no case cited by the Subcontractors was a non-signatory third-party compelled through the incorporation-by-reference doctrine to enforce a provision of a document it did not sign or incorporate.

The incorporation by reference doctrine applies when a party incorporates a document by reference into its own contract and thereby binds itself to provisions within the incorporated document. See City of Port Isabel, 976 S.W.2d at 858. The Subcontractors’ unilateral act cannot bind Cameron County, and Cameron County did not incorporate the Landmark-Subcontractors agreement. This issue is overruled.

Equitable Estoppel

The Subcontractors also argue that the principle of equitable estoppel precludes the County from denying them the right to arbitrate the County’s claims. Where a signatory to a contract containing an arbitration agreement has sued a non-signatory, equitable estoppel allows the non-signatory to compel the signatory to arbitrate in two circumstances: (1) when the signatory has raised allegations of substantially interdependent and concerted misconduct by both the non-signatory and one or more of the signatories to the contract; or (2) when the nature of the signatory’s claims against the non-signatory requires reliance on the agreement containing an arbitration provision. See Merrill Lynch Trust Co. FSB v. Alaniz, 159 S.W.3d 162, 170 (Tex.App.-Corpus Christi 2004, orig. proceeding); In re Hartigan, 107 S.W.3d 684, 691 (Tex.App.-San Antonio 2003, orig. proceeding). In other words, the non-signatory is bound to arbitrate if its claim seeks to enforce the terms of the written agreement containing the arbitration provision. See Lopez, 162 S.W.3d at 812. The non-signatory cannot enforce specific terms of the agreement while seeking to avoid the arbitration provision. Id. The application of this doctrine falls within the trial court’s discretion. Merrill Lynch Trust Co., 159 S.W.3d at 170.

The Texas Supreme Court has limited the application of this doctrine in its In re Kellogg, Brown & Root opinion:

[Although a non-signatory’s claim may relate to a contract containing an arbitration provision, that relationship does not, in itself, bind the non-signatory to the arbitration provision. Instead, a non-signatory should be compelled to arbitrate a claim only if it seeks, through the claim, to derive a direct benefit from the contract containing the arbitration provision.

In re Kellogg, Brown & Root, 166 S.W.3d at 741 (emphasis added). The In re Kellogg, Brown & Root opinion, in reaching this conclusion, relied on several federal cases which further defined direct versus indirect benefits: “[T]he benefit derived from an agreement is indirect where the non-signatory exploits the contractual relation of parties to an agreement, but does not exploit (and thereby assume) the agreement itself.” MAG Portfolio Con sult, GMBH v. Merlin Biomed Group LLC, 268 F.3d 58, 61 (2nd Cir.2001); see Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 417-18 (4th Cir.2000). More recently, the supreme court again applied the equitable principal of estoppel to compel a non-signatory to arbitrate claims it raised under a contract that contained an arbitration provision, concluding that “when a nonparty consistently and knowingly insists that others treat it as a party, it cannot later turn its back on the portions of the contract, such as an arbitration clause, that it finds distasteful.’ A nonparty cannot both have his contract and defeat it too.” In re Weekley Homes, 180 S.W.3d 127, 135, 2005 WL 3676775 at *4, No. 04-0119, 2005 Tex. LEXIS 817, at *21, (Oct. 28, 2004, orig.proceeding) (citations omitted).

In its claims against the Subcontractors, Cameron County seeks damages for breach of fiduciary duty by alleging the following:

The agreement between the County and Landmark required results in strict compliance with the agreement between them. Landmark’s performance pursuant to their agreement with the County did not strictly conform to those requirements and is therefore defective. Applicable construction regulations and/or practices were not followed by Landmark and some or all of [the Subcontractors]. Landmark and the [Subcontractors] are subsequently liable under their agreement with the County. Landmark and the [Subcontractors] failed to strictly comply with the agreement and are liable for damages proximately caused by such breach....

In making this allegation against the Subcontractors, the County has implied that the Subcontractors and the County were in a contractual relationship with each other via the intermediate contracts they both made with Landmark: Landmark and the Subcontractors both are “liable under their agreement with the County” and “failed to strictly comply with the agreement.” The petition only refers to a single “agreement,” implying that the series of separate agreements between Cameron County and Landmark, and Landmark and the Subcontractors, can be combined into a single agreement for the purposes of this suit in which Cameron County is attempting to enforce the terms of the Landmark-Subcontractor agreement. The County has thus attempted to “exploit (and thereby assume) the [Subcontractor-Landmark] agreement itself,” and has not simply attempted to “[exploit] the contractual relation of [the] parties.” MAG Portfolio Consult, 268 F.3d at 61; see In re Kellogg, Brown & Root, 166 S.W.3d at 741. This establishes direct benefits estoppel even under the strict test espoused in In re Kellogg, Brown & Root.

The County, as the non-signatory to the Landmark-Subcontractor contract, cannot attempt to enforce specific terms of the subcontract and thereby obtain a direct benefit from the contract while simultaneously seeking to avoid the arbitration provision. See Lopez, 162 S.W.3d at 812. The County is equitably estopped from preventing arbitration from occurring. Accordingly, we conclude that the trial court erred by denying the Subcontractors’ motion to compel, and further, that this error constituted an abuse of discretion. See Garza, 848 S.W.2d at 806 (“A trial court abuses its discretion by failing to correctly apply the [FAA] to the facts of a case”). We sustain this issue.

Remaining Issues

The Subcontractors also raised the following issues in their petitions for writ of mandamus: (1) the trial court erred by entering the order to sever the Subcontractors’ suit from Landmark’s suit; (2) the Subcontractors have not waived their right to arbitrate; (3) the arbitration agreement is not unconscionable; and (4) respondent Judge Limas’s findings regarding security problems at the jail lack evi-dentiary support and are immaterial to the question of whether the Subcontractors are entitled to arbitration.

Responding to the first issue regarding the order of severance, we note that following the severance of the Subcontractors’ suit, Landmark and the County successfully arbitrated their claims to settlement. When there has ceased to be an active controversy, “the decision of an appellate court would be a mere academic exercise.” Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex.App.-El Paso 1994, no writ). When events occur after a judgment which render the issue before this Court moot, we may not decide the appeal. Id. (citing Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570-71 (Tex.1990)). Thus, the issue of severance of the Subcontractors’ claims is rendered moot as it would no longer be possible for this Court to remedy error, if any, in the order. See Tex. RApp. P. 43.2 (listing potential types of judgment this Court may render).

With regard to the remaining issues, we note that they respond to an earlier order signed by respondent. The final corrected order, signed by respondent on October 29, 2005, makes no reference to any issues of waiver by the Subcontractors or unconscionability. Accordingly, we decline to further address these issues as moot. See Hanna, 876 S.W.2d at 457.

Furthermore, we note that respondent made no specific findings regarding the claims raised by the County alleging faulty construction; the only “factual finding” regarding security problems in the order was the following statement: “It is undisputed that there have been various escape attempts from the Detention Center, including one escape attempt in early 2004, involving inmates who penetrated the hollow cinder-block walls of the Detention Center.” All other references to security problems were clearly denoted to be allegations of the County, not factual findings.

After a judgment of the trial court becomes final, it can be altered through the entry of a nunc pro tunc judgment if the evidence shows that a clerical error, rather than a judicial error, caused the inaccuracy. Tex.R. Civ. P. 316; Gutierrez v. Elizondo, 139 S.W.3d 768, 771 (Tex.App.-Corpus Christi 2004, no pet.). A judicial error is an error which occurs in the rendering, as opposed to the entering, of a judgment. Gutierrez, 139 S.W.3d at 771. A clerical error is one which, after being corrected, does not change the terms of the judgment as rendered. See id.

If, as the Subcontractors appear to allege here, the complained-of statement regarding prisoner escape attempts was not in fact an “undisputed” statement of fact, we see that this is nonetheless no more than a clerical error as its removal or correction would not change or affect the terms of the judgment as rendered. Therefore, as the proper remedy for the Subcontractors is to seek a judgment nunc pro tunc from the trial court, see id., or to establish in the record that this statement was clearly erroneous, we will not address this complaint. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (noting appellate courts have power to correct clerical errors when evidence clearly showing error appears in the record).

Conclusion

We dismiss the interlocutory appeal in Cause No. 13-04-578-CV for lack of jurisdiction.

We conditionally grant the relief sought by the Subcontractors in Cause No. 13-05-165-CV. Respondent is ordered to vacate his order of October 29, 2004, insofar as it denies the Subcontractors’ motion to compel arbitration. A writ of mandamus will issue if respondent refuses to comply with this Court’s instructions.

The stay of the underlying proceedings issued by this Court is hereby set aside so that the parties may comply with this opinion.

      . The Subcontractors, who are appellants in Cause No. 13-04-578-CV and relators or real-parties-in-interest in Cause No. 13-05-165-CV, are the following parties: AFG Industries, Inc.; Al Cardenas Masonry and System Firealarm CCTV Central Systems; Buell Doors, d/b/a Total Opening System; Cappa-donna Electrical Management; Coastal Engineering; Commercial Roofing Systems; Cornerstone Detention Products; CTO, Inc.; Di Stefano/Santopetero Architects, Inc.; Durrant Architect, Inc.; Eberle Materials; J-III Concrete Company, Inc.; L & G Concrete; Lyon Metal Products; MacLaird Glass Company; Metro Electric; Pearland Industries, Inc.; Raba-Kistner Consultants; Rio Grande Steel, Ltd.; Strategis Equipment/Gemsbacher; Thirlwall Sheet Metal Company; Tofi/Wolfl/Farrow, Inc.; Toman & Associates; Tri-City Steel and Fabrication, Inc.; and Za-rate Suspended Ceilings, Inc.

      . One of the Subcontractors, Cappadonna, informed this Court by letter dated August 22, 2005, that Landmark and Cameron County settled their claims during arbitration. However, as Cappadonna noted in its letter, this did not moot the interlocutory appeal or original proceeding filed by the Subcontractors. The Subcontractors could still seek to compel Cameron County to enter arbitration proceedings without Landmark's presence.

      . The general contract also provides the following:
      [Landmark] and [Cameron County] expressly agree that any arbitration pursuant to this Section 10.3 may be joined or consolidated with any arbitration involving any other person or entity (i) necessary to resolve the claim, dispute or controversy, or (ii) substantially involved in or affected by such claim, dispute or controversy. Both [Landmark] and [Cameron County] will include appropriate provisions in all contracts they execute with other parties in connection with the Project to require such joinder or consolidation.
      The Subcontractors argue that this is a clear indication that Cameron County expressly intended to incorporate other arbitration agreements between Landmark and any subcontractors. We disagree. Under this provision, the Subcontractors could initiate arbitration proceedings against Landmark and Landmark could then potentially join that arbitration with its separate arbitration proceedings against Cameron County. However, this only makes the Subcontractors and Cameron County able to assert any claims they both have against Landmark in a single proceeding; it does not itself provide a means for the Subcontractors to arbitrate their claims against Cameron County directly. The provision is a join-der or consolidation provision only and does not indicate that any interested third-party can attempt to harness the arbitration clause in the Cameron County-Landmark contract in order to pursue its own claims in arbitration.

      . In its In re Weekley Homes opinion, the supreme court reached the same conclusion under similar circumstances:
      Like the equitable doctrine of promissory estoppel, we do not understand direct-benefits estoppel to create liability for noncon-tracting parties that does not otherwise exist. As Von Bargen and Weekley had no contract between them, estoppel alone cannot grant either a right to sue for breach. Nor do we understand the doctrine to apply when the benefits alleged are insubstantial or indirect. But once Von Bargen deliberately sought substantial and direct benefits from the contract, and Weekley agreed to comply, equity prevents her from avoiding the arbitration clause that was part of that agreement.

        In re Weekley Homes, 180 S.W.3d 127, 133, 2005 WL 3676775 at *4, No. 04-0119, 2005 Tex. LEXIS 817, at *19, 49 Tex. Sup. J. 55 (Oct. 28, 2004, orig.proceeding).