Southwire Company, LLC v. Angie Sparks and Larry Sparks

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00126-CV
___________________________
SOUTHWIRE COMPANY, LLC, Appellant
V.
ANGIE SPARKS AND LARRY SPARKS, Appellees
On Appeal from the 236th District Court
Tarrant County, Texas
Trial Court No. 236-322296-20
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
In this interlocutory appeal, Appellant Southwire Company, LLC raises one
issue challenging the trial court’s denial of its special appearance in which it claimed
that a Texas court did not have personal jurisdiction to adjudicate the claims brought
against it by Appellees Angie Sparks and Larry Sparks. We conclude that the trial
court did not err by denying the special appearance. The record contains some
evidence supporting the trial court’s implied findings that are necessary to permit the
exercise of specific jurisdiction over Southwire. Specifically, Southwire’s contacts
with Texas show that Southwire purposefully availed itself of the privilege of
conducting business in Texas. Further, the Sparkses’ claims relate to those contacts.
Thus, we affirm the trial court’s denial of Southwire’s special appearance.
II. Factual and procedural background
The Sparkses’ petition claimed that they are “citizen[s] of Texas” and pleaded
that they have an address in Granbury, Texas. The Sparkses pleaded that they had
purchased a travel trailer, which they also describe as an RV, from a dealer located in
Texas; the dealer is sued under the names United Recreation & Mobile Home Center,
Inc.; United RV Center; and United RV Fort Worth (referred to collectively with
Southwire as the defendants). According to the petition, the RV was equipped with a
Surge Guard Surge Protector (model number 34750) that the Sparkses allege was
manufactured by Southwire. The Sparkses claimed that they purchased the Surge
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Guard at the same time that they purchased the RV and that Southwire “direct[ed]
customers to purchase its products from defendant United RV Center in Texas,
where the surge protector [that is the] subject of this action was purchased.” The
Sparkses claim that United RV represented to them “that if they did not purchase the
[s]urge [p]rotector together with their purchase of the [RV], it would void the
warranty on their new RV.”
At some point after the purchase, the Sparkses attempted to use the RV’s
electric fireplace, which allegedly produced an electrical short that caused “a threat of
fire and sparks shooting out of the circuit breaker box.” Mrs. Sparks claimed that she
ran from the RV in an attempt to unplug it from its electric connection, that she fell,
and that she suffered a debilitating injury. In turn, Mr. Sparks claimed that he had
“suffer[ed]” from the defendants’ acts and had also experienced a loss of consortium
and mental anguish as a result. The absence of a ground-fault circuit interrupter and
an arc-fault circuit interrupter in the RV allegedly caused the sparking incident. The
petition also alleged that the actions of United RV and Southwire (as the Surge
Guard’s manufacturer) were a producing cause of the Sparkses’ injuries.
The Sparkses asserted causes of action for breach of warranty and violations of
the Texas Deceptive Trade Practices Act. They asserted a breach of the warranty of
merchantability against Southwire and alleged that “the surge protector was not
merchantable nor fit for its intended purpose because it was not fit for ordinary
purposes [as] it did not function as a surge protector and did not protect from a
3
power surge.” The petition also included a claim against Southwire for breach of the
implied warranty of fitness for a particular purpose. The breaches of warranty were
also alleged to constitute a violation of the DTPA because Southwire allegedly
engaged in an unconscionable action that took advantage of the Sparkses’ lack of
knowledge of the “non-working state of the surge protector to a grossly unfair
degree.”
In their original petition, the Sparkses stated the basis for jurisdiction against
Southwire to be that it “had continuous and systematic contacts with the [S]tate of
Texas sufficient to establish general jurisdiction over said Defendant. Additionally, as
set forth above, this Defendant has a registered agent for service of process in Texas.”
Southwire responded to the original petition by filing a special appearance that
asserted that a Texas court does not have personal jurisdiction over it under a theory
of general jurisdiction because it is “at home” in Georgia, not in Texas. The special
appearance attached a sworn declaration from a Southwire engineering manager, who
averred that Southwire was organized in Delaware and that its company-wide
decisions are made in Georgia. The declaration continued, stating that Southwire’s
products are widely distributed and that the company operates in many locations
throughout the United States.
The declaration described Southwire’s method of distributing its products:
Generally, Southwire’s Surge Guards are not sold to the public but are
sold to unrelated distributors. Those unrelated distributors generally
resell the products to dealers, who resell to the public. The dealers are
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also unrelated to Southwire. In other words, usually, Southwire is at
least twice removed from a retail customer. In some instances, Amazon
sells Southwire products through internet sales. However, those sales
are through a re-seller, not directly from Southwire.
Further, the declaration stated that because the Sparkses had not provided “a
serial number, lot number, or other information” for the Surge Guard, Southwire
could not identify the “specific device.” But the declaration also noted that
“Southwire [could not] locate any record of selling a Surge Guard with the model
referenced in the [p]etition to an RV dealer in Texas. Southwire’s records reflect[ed]
that it ha[d] not sold the Surge Guard with the model number referenced in the
[p]etition since 2015.” The declaration acknowledged that Southwire “does business
in Texas” and has a registered agent in the state. It also noted that “Southwire has
two manufacturing plants in Texas and a facility for distribution, but it does not
maintain a permanent general business office through which it solicits business in
Texas.”
With respect to the incident at issue, the declaration stated a conclusion that
the Sparkses’ “alleged claims do not arise from, and are not related to, any activity
conducted by Southwire in Texas.” Specifically, no employee of Southwire was
present when the Surge Guard was sold to the Sparkses, and Southwire did not
authorize a person in Texas to make any representation about the Surge Guard in
Texas.
5
After a continuance of an initial setting, the trial court heard Southwire’s special
appearance. The day of the hearing, the Sparkses filed an amended petition that
appears to be identical to their original petition, except that it augmented the
jurisdictional allegations against Southwire by pleading that
Defendant Southwire Company, LLC had continuous and systematic
contacts with [t]he State of Texas sufficient to establish general
jurisdiction over said Defendant. Additionally, as set forth above, this
Defendant has a registered agent for service of process in Texas; is
qualified to do business in Texas; owns a related entity located in Texas;
does business in Texas; has two manufacturing plants in Texas; has a
facility for distribution in Texas; maintains a website soliciting business
from customers in Texas for sales; provides a list of registered dealers in
Texas on its websites; and directs customers to purchase its products
from defendant United RV Center in Texas, where the surge protector
[that is the] subject of this action was purchased, and provides their
address.
At the time they filed their amended petition, the Sparkses also filed a response
to Southwire’s special appearance; the response contended that a Texas court held
both general and specific jurisdiction over Southwire. Attached to the response was a
declaration from the Sparkses’ attorney that included a paragraph stating that “Ex. A
is a true and accurate copy of the Defendant Southwire Company, LLC’s website
(Internet, http:[//]southwire.com, last visited March 26, 2021) where it actively directs
Texas consumers to purchase its RV surge protectors from its registered dealer, the
Defendant United RV in Ft. Worth, Texas.” The referenced Exhibit A had the
following screenshot from Southwire’s website:
6
The declaration also noted that Southwire was authorized to do business in Texas.
At the hearing on the special appearance, no party adduced evidence. The trial
court denied Southwire’s special appearance, and Southwire filed an interlocutory
appeal of that order. Southwire requested findings of fact and conclusions of law
from the trial court but did not file a notice of past-due findings. See Tex. R. Civ. P.
297.
III. The legal principles that apply to our jurisdictional analysis
A. Standard of review
The Texas Supreme Court recently described (1) why jurisdiction is required to
bind a party to a judgment, (2) the standard of review that we follow in reviewing a
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trial court’s decision regarding whether or not to exercise personal jurisdiction, and
(3) the findings that we imply when the trial court has not filed findings:
A court must have both subject[-]matter jurisdiction over a case and
personal jurisdiction over the parties to issue a binding judgment.
Personal jurisdiction involves a court’s ability to bind a particular party
to that judgment. Whether a court may exercise power over a party is a
question of law, which we review de novo. Resolving this question of
law, though, may require a court to decide questions of fact. When, as
here, the trial court does not issue findings of fact and conclusions of
law with its judgment, we presume all factual disputes were resolved in
favor of the trial court’s decision unless they are challenged on appeal.
Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 7–8 (Tex. 2021) (citations
omitted).
In the absence of findings, we “must affirm if the judgment can be upheld on
any legal theory supported by the evidence.” Michelin N. Am., Inc. v. De Santiago, 584
S.W.3d 114, 122 (Tex. App.—El Paso 2018, pet. dism’d) (op. on reh’g). “When the
appellate record includes the reporter’s and clerk’s records, these implied findings are
not conclusive and may be challenged for legal and factual sufficiency in the
appropriate appellate court.” BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
795 (Tex. 2002).
B. The shifting burdens that apply to the analysis of a challenge to
personal jurisdiction
A party may challenge a Texas court’s exercise of personal jurisdiction over it
by filing a special appearance under Texas Rule of Civil Procedure 120a. See Tex. R.
Civ. P. 120a. The process of resolving a special appearance sets in motion a
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complicated procedural sequence in which the intermeshing of the shifting burdens of
proof on issues of personal jurisdiction may generate both legal and factual questions.
The burdens flow as follows:
• “[T]he plaintiff bears the initial burden to plead sufficient allegations to
bring the nonresident defendant within the reach of Texas’s long-arm
statute.” Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.
2010).
• “Once the plaintiff has pleaded sufficient jurisdictional allegations, the
defendant filing a special appearance bears the burden to negate all bases
of personal jurisdiction alleged by the plaintiff.” Id. The defendant’s
burden is “tied to the allegations in the plaintiff’s pleading.” Id.• “If the plaintiff fails to plead facts bringing the defendant within reach of
the long-arm statute . . . , the defendant need only prove that it does not
live in Texas to negate jurisdiction.” Id. at 658–59. To correct the
failure to allege jurisdictional facts, the plaintiff should amend to include
“necessary factual allegations.” Id. at 659.
• “The defendant can negate jurisdiction on either a factual or legal basis.”
Id.
9o “Factually, the defendant can present evidence that it has no
contacts with Texas, effectively disproving the plaintiff’s
allegations.” Id.o To negate jurisdiction on a legal basis,
the defendant can show that even if the plaintiff’s alleged facts
are true, the evidence is legally insufficient to establish
jurisdiction; the defendant’s contacts with Texas fall short of
purposeful availment; for specific jurisdiction, that the claims
do not arise from the contacts; or that traditional notions of
fair play and substantial justice are offended by the exercise of
jurisdiction.
Id.• Should the defendant make a factual challenge to the plaintiff’s
jurisdictional allegations, “[t]he plaintiff can then respond with its own
evidence that affirms its allegations, and it risks dismissal of its lawsuit if
it cannot present the trial court with evidence establishing personal
jurisdiction.” Id. (footnote omitted).
C. The basic questions that must be answered to decide whether a
Texas court has personal jurisdiction over a defendant
Two fundamental questions must be answered in deciding whether a Texas
court may bind a foreign defendant to its judgment: (1) does the Texas long-arm
statute authorize the exercise of jurisdiction; and (2) does the exercise of jurisdiction
comport with federal due-process guarantees. Luciano, 625 S.W.3d at 8. These two
questions meld into one because the long-arm statute requires a nonresident to be
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“doing business” in Texas, and the supreme court has held that the “broad doing-
business language allows the [long-arm] statute to ‘reach as far as the federal
constitutional requirements of due process will allow.’” Moki Mac River Expeditions v.
Drugg, 221 S.W.3d 569, 575 (Tex. 2007); see also Spir Star AG v. Kimich, 310 S.W.3d 868,
872 (Tex. 2010) (“Our long-arm statute reaches ‘as far as the federal constitutional
requirements for due process will allow.’ Consequently, the statute’s requirements are
satisfied if exercising jurisdiction comports with federal due[-]process limitations.”
(citations omitted)).
Stated most broadly, the exercise of jurisdiction meets federal due-process
standards “only if the defendant has established ‘minimum contacts’ with the forum
state such that maintenance of the suit does not offend ‘traditional notions of fair play
and substantial justice.’” Luciano, 625 S.W.3d at 8.
D. The distinction between the two types of personal jurisdiction that
a Texas court may exercise
Courts analyze whether the due-process standard is met from two perspectives:
general jurisdiction and specific jurisdiction. Id. General jurisdiction deals with a
defendant’s overall presence in a state and may be exercised when the defendant’s
“affiliations with the [s]tate are so ‘continuous and systematic’ as to render [it]
essentially at home in the forum [s]tate.” Id. (quoting TV Azteca v. Ruiz, 490 S.W.3d
29, 37 (Tex. 2016)). “By contrast, specific jurisdiction ‘covers defendants less
intimately connected with a [s]tate[] but only as to a narrower class of claims.’” Id.
11(quoting Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021). The
narrower class of claims falling within specific jurisdiction requires a showing that
“the defendant purposefully avails itself of the privilege of conducting activities in the
forum state, J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 877, 131 S. Ct. 2780,
[2785] (2011) (plurality opinion), and [that] the suit ‘arise[s] out of or relate[s] to the
defendant’s contacts with the forum.’” Luciano, 625 S.W.3d at 8–9 (first quoting
Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773, 1780 (2017); and then
quoting Moki Mac, 221 S.W.3d at 576).
E. When a defendant purposefully avails itself of the privilege of
conducting business in Texas for purposes of specific jurisdiction
When speaking of a defendant’s purposeful availment, each word in the phrase
carries significance. The acts creating the contact must be those of the defendant
itself; the “unilateral activity” of a third party does not qualify. Id. at 9. What a
defendant must avail itself of is “the privilege of conducting activities within the
forum [s]tate, thus invoking the benefits and protections of its laws.” Id. (quoting
Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240 (1958)). And to meet the
standard of purposefulness, the defendant must act deliberately, i.e., it has
“‘deliberately’ engaged in significant activities within a state”; it “manifestly has availed
[itself] of the privilege of conducting business there.” Id. (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174, 2184 (1985)).
12
Contacts that are fortuitous and attenuated do not satisfy the purposeful-
availment standard. Id. A defendant’s act of purposeful availment must provide it
with “clear notice that it is subject to suit” in the forum state. Id. (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980)). When a
defendant has such clear notice, it “can act to alleviate the risk of burdensome
litigation by procuring insurance[;] passing the expected costs on to customers[;] or, if
the risks are too great, severing its connection with the [s]tate.” Id. (citing World-Wide
Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567).
A long-debated issue in determining questions of specific personal jurisdiction
is whether introducing a product into the stream of commerce constitutes purposeful
availment. See LG Elecs., Inc. v. Lovers Tradition II, LP, No. 05-19-01304-CV, 2020 WL
4281965, at *10–11 (Tex. App.—Dallas July 27, 2020, pet. dism’d) (mem. op.).
Simply because a product is swept into another state by the stream is not enough. See
Luciano, 625 S.W.3d at 10. Adopting a plurality opinion from the United States
Supreme Court, Texas permits the exercise of jurisdiction over the entity placing the
product in the stream of commerce when that entity has engaged in “additional
conduct” that evinces “‘an intent or purpose to serve the market in the forum [s]tate,’
whether directly or indirectly.” Id. (first citing TV Azteca, 490 S.W.3d at 46; and then
quoting Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 112, 107 S. Ct. 1026,
1032 (1987) (plurality opinion)). This test is sometimes termed “stream of commerce
plus.” LG Elecs., 2020 WL 4281965, at *10–11 (utilizing the term “stream of
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commerce plus”).1 “Evidence of such additional conduct [that meets the stream-of-
commerce-plus test] may include advertising in the forum state[;] soliciting business
through salespersons[;] or creating, controlling, or employing the distribution system
that brought the product into the forum state.” Luciano, 625 S.W.3d at 10 (citations
omitted).
The Texas Supreme Court has described the parameters of when a sales-and-
distribution network constitutes sufficient additional conduct: the “operation of a
sales[-]and[-]distribution network” or “direct[ing] marketing efforts to [the forum
state] in the hope of soliciting sales” may render a nonresident subject to the state’s
jurisdiction in disputes “arising from that business.” Id. at 11. The rationale for this
rule is that when a manufacturer seeks to serve a market indirectly through the use of
affiliate or independent distributors, “it is not unreasonable to subject it to suit in one
of those [s]tates if its allegedly defective merchandise has there been the source of
injury to its owner or to others.” Spir Star, 310 S.W.3d at 871 (quoting World-Wide
Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567); see also Luciano, 625 S.W.3d at 10.
There are, however, limits to the extent that a defendant’s sales-and-
distribution efforts may be used to establish purposeful availment:
• The principle is applicable only to specific jurisdiction. Spir Star, 310
S.W.3d at 874.
1
Southwire repeatedly refers to a “targeting the market theory.” We interpret
this term as Southwire’s shorthand for the stream-of-commerce-plus theory that we
discuss below.
14
• There must be a substantial connection between the contact and the
operative facts of the litigation. Id. at 874–75 (stating that “when a
nonresident’s only contacts with Texas involve indirect sales through a
distributor or subsidiary, specific jurisdiction is limited to claims arising
out of those sales”).
• There must be a substantial connection to the product sold. Id. at 875
(stating that the fact “[t]hat similar products were sold in Texas would
not create a substantial connection as to products that were not”).
• There may be reasons unrelated to serving the Texas market for having a
Texas distributor. Id. (stating that “[a] Texas distributorship may
increase the manufacturer’s bottom line because it is more efficient or
has greater access to economies of scale[] and not because it is intended
to serve Texas consumers”).
A few months ago, the Texas Supreme Court applied the outlined principles to
hold that a manufacturer of spray-foam insulation, which was used by Texas residents
to insulate their home, had purposefully availed itself of the Texas market for
purposes of personal jurisdiction. See Luciano, 625 S.W.3d at 9–14. The supreme
court focused on two facts to support its holding. First, the manufacturer had a
Texas distribution facility, which handled logistics for its products. Id. at 10–11.
Even though a third party actually shipped the products, a distribution facility from
15
which the company shipped its products at its own direction showed that the
existence of that facility was neither “adventitious . . . nor thrust upon” the company;
instead, the company’s “use of a warehouse to maintain a stock of merchandise in
Texas was deliberate.” Id. at 11.
Further, the company had an independent contractor sales representative in
Texas. Id. Luciano noted the supreme court’s prior holding in Spir Star that
emphasized that a defendant may be targeting the Texas market even if it is using an
independent distributor to accomplish the sales:
In Spir Star, we said that “[w]hen an out-of-state manufacturer . . .
specifically targets Texas as a market for its products, that manufacturer
is subject to a product[-]liability suit in Texas based on a product sold
here, even if the sales are conducted through a Texas distributor or
affiliate.” 310 S.W.3d at 874. There, the manufacturer utilized an
independent distributor who “agreed to serve as the sales agent” in
Texas, thus satisfying Asahi’s “additional conduct” standard. Id. at 875
(citing Asahi, 480 U.S. at 112, 107 S. Ct. [at 1032]). While the
manufacturer in Spir Star did not receive any of the intermediary’s profits
and relinquished title before the products reached Texas, the
manufacturer “reap[ed] substantial economic gain through its sales.” Id.Id. at 11–12. Luciano focused on whether the manufacturer was using the agent to
avail itself of the Texas market by making sales in that market through the agent and
not on how the company structured its relationship with the agent. Id. at 12. The fact
that the representative was an independent contractor did not, in the supreme court’s
view, impact the question that the company was using the representative to effect
sales to Texas residents. Id. The relevant fact for the purposeful-availment analysis
was that the representative functioned to find customers in Texas. Id.
16The supreme court summarized its holding and reasoning on the purposeful-
availment question as follows:
Viewing [the insulation manufacturer’s] purposeful conduct with respect
to Texas in totality, we cannot say that [the manufacturer’s] contacts
with Texas resulted from the “mere fortuity” that the [homeowners]
reside in Texas. Placing its product into the stream of commerce in
conjunction with its “additional conduct” of soliciting business and
distributing its product in Texas is sufficient to hold that [the
manufacturer] purposefully availed itself of the Texas market.
Id. at 13–14 (citation omitted).
F. When a claim arises out of or relates to a defendant’s Texas
contacts for purposes of specific jurisdiction
As noted, specific jurisdiction has two prongs. The second is “relatedness.” Id.
at 14 (citing Bristol-Myers, 137 S. Ct. at 1780). Specifically, “[d]espite a nonresident
defendant’s flood of purposeful contacts with the forum state, the exercise of specific
jurisdiction is prohibited if ‘the suit’ does not ‘aris[e] out of or relat[e] to the
defendant’s contacts with the forum.’” Id. “This so-called relatedness inquiry defines
the appropriate ‘nexus between the nonresident defendant, the litigation, and the
forum.’” Id. (quoting Moki Mac, 221 S.W.3d at 579).
Luciano explained the changing face of the relatedness inquiry that resulted
from the 2021 United States Supreme Court opinion in Ford Motor Co. Id. (citing Ford
Motor Co., 141 S. Ct. at 1022). In Ford Motor Co., the United States Supreme Court
answered the question of whether relatedness required a causal relationship between
the contacts and the injury or whether the fact that the injury related to the contact
17
was sufficient. 141 S. Ct. at 1022. Ford Motor Co. held that a causal connection was
not required. Id. A close relationship is sufficient. Id. Luciano gave a detailed
discussion of Ford Motor Co.’s holding and how that holding impacted the plaintiffs’
claims in the case before it. Luciano, 625 S.W.3d at 15–18.
Ford Motor Co. involved two plaintiffs who filed product-liability suits against
the motor company to recover for injuries sustained while driving Ford automobiles
in the forum states. 141 S. Ct. at 1022–23. Ford argued that the states where the
injuries occurred did not have jurisdiction over the company because “a state court
would have jurisdiction only if the company’s conduct in the state ‘gave rise to’ the
plaintiff’s claims, a causal link that exists only if the company designs, manufactures,
or sells the particular vehicle involved in an accident in the forum state.” Luciano, 625
S.W.3d at 15 (quoting Ford Motor Co., 141 S. Ct. at 1023, 1026).
The United States Supreme Court rejected this argument for reasons that
Luciano explained as follows:
The Supreme Court [held] that “when a company like Ford serves a
market for a product in a [s]tate and that product causes injury in the
[s]tate to one of its residents, the [s]tate’s courts may entertain the
resulting suit.” [Ford Motor Co., 141 S. Ct. at 1022]. A “causation-only
approach finds no support in [the] Court’s requirement of a ‘connection’
between a plaintiff’s suit and a defendant’s activities.” Id. at 1026 (citing
Bristol-Myers, 137 S. Ct. at 1776). Instead, due process demands that a
suit “arise out of or relate to” the defendant’s contacts with the forum. Id.
(quoting Bristol-Myers, 137 S. Ct. at 1780). The first half of that standard,
the Court said, “asks about causation.” Id. The latter half “contemplates
that some relationships will support jurisdiction without a causal
showing.” Id. “That does not mean anything goes,” the Court warned,
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because “‘relate to’ incorporates real limits” to adequately protect
nonresident defendants. Id.
The Court equated Ford Motor Co. to World-Wide Volkswagen—
what it described as the “paradigm case” for specific jurisdiction. Id. at
1027–28. In World-Wide Volkswagen, the Ford Court observed, both
Audi—the manufacturer—and Volkswagen—the nationwide
importer—were subject to specific jurisdiction in Oklahoma because
their business “deliberately extended into [that state].” Id. at 1027. The
forum state could thus hold the companies accountable for injuries
“even though the vehicle had been designed and made overseas and sold
in New York.” Id.
Id.
Luciano described Ford Motor Co.’s basis for concluding that the relationship
between the car company’s contacts with the forum state and the plaintiffs’ claims—
even though not a causal one—were sufficiently related to permit the exercise of
personal jurisdiction:
Addressing how Ford’s Montana- and Minnesota-based conduct “relates
to” the respective claims, the Court first noted that the suits were
brought by residents of the forum states. [Ford Motor Co., 141 S. Ct. at
1028]. Each suit arose from an accident in the forum state. Id. Each
suit alleged that a defective Ford vehicle caused the resultant harm. Id.
And “Ford had advertised, sold, and serviced those two car models in
both [s]tates for many years.” Id. Put succinctly, “Ford had
systematically served a market in Montana and Minnesota for the very
vehicles that the plaintiffs allege malfunctioned and injured them in
those [s]tates[, s]o there is a strong ‘relationship among the defendant,
the forum, and the litigation.’” Id. (quoting Helicopteros Nacionales de
Colom., S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, [1872] (1984)).
While the plaintiffs did not establish, or even allege, that Ford’s in-state
activities resulted in their purchasing the cars, the Court said that
jurisdiction should not “ride on the exact reasons for an individual
plaintiff’s purchase, or on his ability to present persuasive evidence
about them” because the reach of Ford’s Minnesota and Montana
contacts underscored the aptness of finding jurisdiction. Id. at 1029.
19
Allowing the forum states’ courts to exercise jurisdiction in the two cases
was neither undue nor unfair. See id. at 1029–30.
Id. at 16.
Applying the holding of Ford Motor Co., Luciano concluded that the contacts of
the insulation manufacturer that had challenged the jurisdiction of Texas courts were
sufficiently related to the homeowners’ claims to establish specific jurisdiction. Id. at
16–17. Three factors established the necessary relationship:
• The injury was sustained in the Texas residents’ home. Id. at 16. The
fact that the injury occurred in the forum state was not a prerequisite to
jurisdiction but one that was relevant to the relatedness prong. Id. at 17.
• The homeowners alleged that the insulation manufacturer sold the
insulation in Texas, and the manufacturer did not contend that the sale
was an isolated occurrence. Id. The fact that the manufacturer served a
market for the type of insulation at issue and that the insulation
malfunctioned and injured the homeowners in Texas showed that “there
is a strong ‘relationship among the defendant, the forum, and the
litigation’—the ‘essential foundation’ of specific jurisdiction.” Id.• Luciano also rejected the holding of the court of appeals that the
homeowners could not establish the necessary relationship unless they
proved that the insulation was shipped from the manufacturer’s Texas
distributor. Id. Such a strict causal connection is not required; “[i]t is
20
sufficient that [the manufacturer] intended to serve a Texas market for
the insulation that the [homeowners] allege injured them in this lawsuit.”
Id.IV. Analysis
A. Where our analysis falls in the shifting burdens of proof involved in
a jurisdictional analysis and what information filed by the parties
we will consider in our analysis
First, we must locate ourselves in the shifting pleading-and-proof burdens that
we have described above. As noted, the Sparkses initially pleaded that a Texas court
had general jurisdiction over Southwire, and Southwire’s special appearance was
directed to that allegation. However, at the eleventh hour, the Sparkses amended
their petition to expand their allegations of jurisdictional facts to include the
following:
Additionally, as set forth above, [Southwire] has a registered agent for
service of process in Texas; is qualified to do business in Texas; owns a
related entity located in Texas; does business in Texas; has two
manufacturing plants in Texas; has a facility for distribution in Texas;
maintains a website soliciting business from customers in Texas for
sales; provides a list of registered dealers in Texas on its websites; and
directs customers to purchase its products from defendant United RV
Center in Texas, where the surge protector [that is the] subject of this
action was purchased, and provides their address.
Also, though the Sparkses did not allege what state they were in when the
incident that allegedly caused Mrs. Sparks’s injury occurred, the amended petition
alleged that Southwire manufactured the surge protector, identified it by model
21
number, and stated that it “was sold to the [Sparkses] through [Southwire’s] dealer”—
United RV.
The petition also stated that the Sparkses had purchased the surge protector
when they had purchased the RV and that United RV had represented to them that
the surge protector had to be purchased at the same time that they purchased the RV
in order to have warranty coverage on the RV. The surge protector was allegedly
installed in the RV and was allegedly used by them as an interface between the RV
and the drop line of the RV park. The petition also alleged that the surge protector
“was not merchantable nor fit for its intended purpose because it was not fit for
ordinary purposes—it did not function as a surge protector and did not protect from
a power surge.” Based on the breach of the warranty of merchantability, the Sparkses
alleged that Southwire had violated provisions of and committed an unconscionable
act under the DTPA.
The pleading containing these allegations was filed the morning of the special-
appearance hearing, but Southwire did not move for a continuance of the hearing, did
not move to strike the amended petition, and does not claim on appeal that we cannot
consider the allegations because of the petition’s late filing. Instead, in its brief,
Southwire challenges the adequacy of the allegations contained in the amended
petition.
Southwire argues that the amended petition was so bereft of jurisdictional
allegations that to negate jurisdiction, Southwire had to show only that it was not a
22
Texas corporate citizen because it is not “at home” in Texas. Specifically, Southwire
argues that “[a]bsent adequate jurisdictional pleadings, [Southwire] negated
jurisdiction by establishing [that] it was not organized in Texas and [that] its principal
place of business is not in Texas. . . . [The Sparkses] were then required to present
evidence of the jurisdictional facts supporting specific jurisdiction.” Southwire
makes this argument by relying on the step in the jurisdictional analysis that “[i]f the
plaintiff fails to plead facts bringing the defendant within reach of the long-arm
statute . . . , the defendant need only prove that it does not live in Texas to negate
jurisdiction.” See Kelly, 301 S.W.3d at 658–59.
The allegations in the Sparkses’ amended petition are not so bereft of
jurisdictional allegations as Southwire claims, and those allegations are adequate to
allege specific jurisdiction. The amended petition’s jurisdictional allegations
substantially mimic the facts of Luciano: Southwire distributes its products in Texas
and has a dealer in Texas, and the Sparkses—Texas residents—purchased the surge
protector from that dealer.
The San Antonio Court of Appeals dealt with a petition that contained a similar
presentation of the facts and concluded that it adequately alleged personal jurisdiction.
See Ji-Haw Indus. Co. v. Broquet, No. 04-07-00622-CV, 2008 WL 441822, at *1–4 (Tex.
App.—San Antonio Feb. 20, 2008, no pet.). Ji-Haw’s description of the allegations
and its holding are as follows:
23
In her First Amended Petition, Broquet specifically named each
defendant and stated that all defendants would be referred to collectively
as “Defendants.” She alleged that a fire [had] started in her home as a
result of a defect in an XBOX game system (“the game console itself
and/or the power line cord, and/or these components in combination”)
that was “designed, manufactured and marketed by Defendants.” In a
separate section of the petition entitled “Defendants Ji-Haw,” Broquet
alleged [that] Ji-Haw was “legally responsible for the incident made the
basis of this suit.” She asserted [that] Ji-Haw was guilty of negligence
and [that] its negligence was a proximate cause of the incident underlying
the suit. Broquet further alleged [that] Ji-Haw was strictly liable and that
its conduct was a producing cause of the fire and injuries. In asserting
strict liability, she referenced the theories set forth against other
defendants earlier in the petition. Finally, she alleged that “[a]ll or a
substantial part of the events or omissions giving rise to this claim
occurred in Duval County, Texas,” and [that] she is a resident of Texas.
These allegations, when considered together and liberally construed,
assert that Ji-Haw committed a tort in Texas, which is all that is required
under the long-arm statute. See Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004) (holding that in determining plea to
jurisdiction[,] pleadings are liberally construed in favor of pleader in
assessing whether he has [pleaded] sufficient facts to demonstrate trial
court’s jurisdiction); id. at 240 (Brister, J., dissenting) (categorizing
substance of special appearance as plea to jurisdiction); see also Tex. Civ.
Prac. & Rem. Code Ann. § 17.042(2). By describing the incident, alleging it
was a result of the XBOX, including component parts manufactured by the
“Defendants,” alleging the incident forming the basis of the suit occurred in Texas,
and [alleging] that she is a Texas resident, Broquet did, contrary to Ji-Haw’s
assertion, allege sufficient facts to bring Ji-Haw within the long-arm statute.
Id. at *2 (emphasis added).
As noted, Southwire argues that the amended petition’s jurisdictional
allegations are inadequate under the Texas Supreme Court’s holding in Kelly, 301
S.W.3d at 657. One court attempted to use Kelly to argue that Ji-Haw’s holding on
when a petition contains sufficient jurisdictional allegations is no longer persuasive.
See Carey v. State, No. 04-09-00809-CV, 2010 WL 2838631, at *5 (Tex. App.—San
24
Antonio July 21, 2010, pet. denied) (mem. op.). That effort failed because unlike the
allegations in Ji-Haw, Kelly involved a pleading stating that no acts had occurred in
Texas. Id. Here, like in Ji-Haw, the Sparkses’ amended petition alleges numerous acts
that allegedly occurred in Texas.
To support its contention that the Sparkses’ petition was so bereft of
jurisdictional allegations that a denial of at-home status was sufficient to carry its
burden to negate jurisdiction, Southwire also relies on Vinmar Overseas Singapore PTE
Ltd. v. PTT International Trading PTE Ltd., 538 S.W.3d 126, 133 (Tex. App.—Houston
[14th Dist.] 2017, pet. denied). The plaintiff in Vinmar alleged tortious acts in the
form of misappropriation of trade secrets and tortious interference but did not allege
that those acts were committed in Texas. Id. Vinmar rejected an argument that
jurisdiction could be predicated on where the “effect” of the tort might be felt. Id. at
135. Vinmar is inapposite to the issues in this appeal because it provides no guidance
on the question of whether a petition alleges sufficient facts to establish purposeful
availment.2
2
The parties dedicate lengthy portions of their briefs to arguing whether
Southwire has waived the arguments that it makes to this court because Southwire did
not make the arguments to the trial court. Though we do not agree with Southwire’s
arguments, we do not view Southwire as having waived the arguments because
Southwire has more fully developed them on appeal. See Comm’n for Lawyer Discipline v.
Cantu, 587 S.W.3d 779, 784 (Tex. 2019) (“We do not consider issues that were not
raised in the courts below, but parties are free to construct new arguments in support of
issues properly before the Court.” (quoting Greene v. Farmers Ins. Exch., 446 S.W.3d
761, 764 n.4 (Tex. 2014))).
25
We also reject Southwire’s arguments that focus not on what the Sparkses
alleged but on what they did not allege. Southwire places great emphasis on the fact
that the Sparkses did not plead or provide evidence that the incident allegedly caused
by defects in the surge protector and the RV’s wiring occurred in Texas. We are
unpersuaded that the core fact in the jurisdictional analysis in this case is that the RV’s
electrical system malfunctioned while the RV was in Texas. The allegations are that
Southwire purposely availed itself of doing business in Texas and manufactured a
product sold to a Texas resident in Texas by one of its dealers and that said product
caused an injury to a Texas resident. 3 The device was incorporated into another
product that was mobile and that was intended to be used by its owner as tantamount
to a residence while traveling. As the Sparkses allege,
51. The Dealer sold the Dwelling to the Sparks[es], who purchased the
Dwelling.
3
Southwire argues that there is no allegation that the Sparkses are Texas
residents because their petition describes them as citizens of Texas. Southwire argues
that “citizenship for federal diversity jurisdiction purposes is not the same as residency
for purposes of state court personal jurisdiction.” Southwire cites a Dallas Court of
Appeals opinion holding that citizenship for diversity purposes and residency for
jurisdictional purposes are different concepts, and an admission that a party is a state
citizen for purposes of diversity citizenship is not an admission that a party is a state
resident. See Favour Leasing, LLC v. Mulligan, No. 05-13-01000-CV, 2014 WL 4090130,
at *8 (Tex. App.—Dallas Aug. 19, 2014, no pet.) (mem. op. on reh’g). The Sparkses’
petition describes them as being “citizen[s] of Texas” and also lists their address as
being in Texas. Certainly, the language of the Sparkses’ petition is imprecise, but fairly
viewed, we consider the allegations as an attempt to allege residency rather than
citizenship. Nothing in the petition suggests that the Sparkses were referring to the
principles of federal-diversity jurisdiction when using the loose term “citizen.”
26
52. The Sparks[es] purchased the Dwelling with the clear and
express purpose of using the Dwelling for residential living. That was
how the product was used.
53. The Dealer had knowledge that its travel trailers were being
purchased for the particular purpose of using the travel trailers as mobile
residences.
To hold that a Texas court did not have jurisdiction when the Sparkses used the RV
for its intended purpose and traveled in it, possibly outside the state, would mean that
Texas residents who purchase a product in Texas designed to be used as a mobile
residence would be left without the protections of the Texas courts should they be
injured while using that product for its intended purpose. Holding that such a
fortuitous fact frees a defendant from the reach of Texas courts disregards the true
bases for jurisdiction—that when a Texas resident is injured by a product that he was
sold by a defendant that directed its efforts at a Texas market, the Texas resident
should have recourse in Texas courts.
Further, Southwire attacks the Sparkses’ warranty allegations under the guise
that it is attacking their jurisdictional allegations. Southwire’s challenges include that
the Sparkses never pleaded how the warranty arose, whether the warranty was express
or implied, or how the warranty was dishonored, nor did they offer a warranty into
evidence. Though not germane to the resolution of these arguments in the context of
a special appearance, we note that the Sparkses pleaded that their claim against
Southwire was based on the implied warranty of merchantability. That said,
Southwire’s arguments are a merits-based attack on the Sparkses’ cause of action.
27
That attack should be considered later. See Wilmington Tr., Nat’l Ass’n v. Hsin-Chi-Su,
573 S.W.3d 845, 859 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“[W]e do not
consider the merits of a party’s claims when analyzing personal jurisdiction.”). At this
point, our concern is only whether the allegations meet the tests for specific
jurisdiction.
We conclude that the Sparkses pleaded a basis for specific jurisdiction.
Southwire’s denial that it was a Texas resident was not sufficient in and of itself to
satisfy its burden to negate that a Texas court has personal jurisdiction over it.
Further, because of the posture of this case, we go beyond the pleadings’
allegations and also review other materials submitted by the parties as evidence that
we can consider in our jurisdictional analysis. In the disjointed approach used in this
case, Southwire filed its declaration before the Sparkses amended their petition.
Then, the Sparkses amended their petition, basing their jurisdictional allegations on
certain facts that Southwire had included in its declaration, and filed their own
evidence in the form of the screenshot from Southwire’s website that listed United
RV Sales—the dealer from which the Sparkses allegedly purchased the RV—as
Southwire’s dealer.4 Southwire combines its arguments as challenges to both the
The defendants’ names contained in the Sparkses’ petition and the name listed
4
on the website do not match. But the Sparkses alleged that the company listed on
Southwire’s website was where they had purchased the Surge Guard. Southwire does
not argue that the company listed on its website and the company where the Sparkses
purchased the Surge Guard are different entities.
28
Sparkses’ allegations in their pleadings and the proof before the trial court. The
Sparkses do the same.
Here, neither party suggests that we cannot consider the evidence and
attachments to Southwire’s special appearance and the Sparkses’ response. Further,
Rule 120a provides that we should consider that material. See Tex. R. Civ. P. 120a(3)
(“The court shall determine the special appearance on the basis of the pleadings, any
stipulations made by and between the parties, such affidavits and attachments as may
be filed by the parties, the results of discovery processes, and any oral testimony.”); see
also Steward Health Care Sys. LLC v. Saidara, No. 05-19-00274-CV, 2021 WL 3707995,
at *17 (Tex. App.—Dallas Aug. 20, 2021, no pet.) (Schenck, J., concurring) (stating
that Rule 120a and supreme court precedent provide that the trial court “clearly
contemplates consideration of . . . things other than just the pleadings, namely,
evidence”). Thus, the mix of information that we use to analyze the trial court’s
denial of the special appearance includes the pleadings and the attachments to
Southwire’s special appearance and the Sparkses’ response.
B. We will analyze the findings we imply to support the trial court’s
denial of Southwire’s special appearance to determine whether
there is any evidence to support the findings.
We have no guidance from the trial court regarding how it analyzed the mix of
allegations and evidence because it filed no findings; thus, we imply the findings
necessary to support the trial court’s denial of the special appearance. See Luciano, 625
S.W.3d at 8. These implied findings are tested by evidentiary sufficiency standards.
29
See BMC Software, 83 S.W.3d at 795. Southwire’s issue asserts that there is not legally
sufficient evidence to support the trial court’s order. Thus, we will review that issue
under legal-sufficiency standards, i.e., whether there is more than a scintilla of
evidence to support the denial of the special appearance. See id.5
5
At least one court reviewing findings made in a special appearance suggests
that when no live testimony is taken at a special-appearance hearing, a trial court’s
findings should receive no “special deference” and should apparently be reviewed
de novo rather than under traditional sufficiency standards. See Villagomez v. Rockwood
Specialties, Inc., 210 S.W.3d 720, 726–27 (Tex. App.—Corpus Christi–Edinburg 2006,
pet. denied). Though the cited opinion raised these concerns, it ultimately held that
“[n]otwithstanding these concerns, we conduct the due-process personal-jurisdiction
review by crediting evidence that supports the trial court’s findings of fact if
reasonable jurors could[] and by disregarding contrary evidence unless reasonable
jurors could not.” Id. at 727 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005)). Our court has addressed the nature of the review given both filed and implied
findings made when a trial court did not hear live testimony as part of its
determination of a special appearance; we decided to adhere to traditional sufficiency
standards to review these findings. See OZO Capital, Inc. v. Syphers, No. 02-17-00131-
CV, 2018 WL 1531444, at *5 (Tex. App.—Fort Worth Mar. 29, 2018, no pet.) (mem.
op.) (concluding that it was unnecessary to address question regarding whether
implied findings entered after a non-evidentiary hearing on a special appearance that
turned on credibility determinations should be reviewed de novo); Norstrud v. Cicur,
No. 02-14-00364-CV, 2015 WL 4878716, at *4, *8–9 (Tex. App.—Fort Worth Aug.
13, 2015, no pet.) (mem. op.) (declining to follow the holding of our sister court in
Villagomez that lesser deference is required by this court to findings of fact adopted
verbatim “[b]ecause the Texas Supreme Court has not adopted differing standards of
review for findings of fact adopted verbatim from a prevailing party’s proposed
findings of fact versus findings of fact not adopted verbatim or modified by the trial
court”); Moncrief Oil Int’l, Inc. v. OAO Gazprom, 332 S.W.3d 1, 7–8 (Tex. App.—Fort
Worth 2010) (noting that when no evidentiary hearing was held on special appearance,
appellate court is in “the same position as the trial court and implying all facts
supported by the evidence in favor of the trial court’s ruling seems inappropriate,” but
nevertheless deferring “to all implied findings of fact that support the trial court’s
grant of Appellees’ special appearances so long as legally and factually sufficient
evidence—i.e., factual statements set forth in the affidavits, exhibits, and deposition
30
C. There is some evidence to support the trial court’s implied
findings that underlie a conclusion that Southwire purposefully
availed itself of the privilege of doing business in Texas.
First, we must address the question of what standard to use as a template to
assess the evidence. Southwire argues that because the Sparkses alleged a breach-of-
warranty claim, as opposed to a products-liability claim, a stream-of-commerce-plus
test is somehow inapt. Southwire does not tell us what the alternative test should be.
No matter, we agree with the Dallas Court of Appeals that, for the time being, the
Texas Supreme Court does not distinguish between contract- and tort-based claims in
its jurisdictional analysis. See LG Elecs., Inc., 2020 WL 4281965, at *14. Nor shall we.
Thus, with respect to specific jurisdiction, the first implied findings made by
the trial court must be those associated with whether Southwire purposefully availed
itself of the Texas market by doing business in Texas under the stream-of-commerce-
plus test. Specifically, we examine whether Southwire placed its product in the stream
of commerce and engaged in “additional conduct [that] may include advertising in the
forum state[;] soliciting business through salespersons[;] or creating, controlling, or
employing the distribution system that brought the product into the forum state.” See
Luciano, 625 S.W.3d at 10 (citations omitted).
excerpts filed with the trial court—exists supporting them”), aff’d in part & rev’d in part,
414 S.W.3d 142 (Tex. 2013). We will also adhere to traditional sufficiency review.
31
Here, the Surge Guard, which Southwire admitted that it had manufactured,
ended up in Texas. Though Southwire asserted that it had manufactured the Surge
Guard in Honduras, it acknowledged that it had manufactured it all the same.
Southwire itself offered evidence that it has two manufacturing facilities and a
distribution facility in Texas. We do not know what specific products are distributed
by this facility, but there is nothing in the record to indicate that the distribution
facility was completely divorced from distribution of the type of surge protector that
is at issue or that the purpose of the distribution facility was for a purpose unrelated
to distributing products to the Texas market. See Spir Star, 310 S.W.3d at 875. As
noted, the supreme court in Luciano placed great emphasis on the fact that the
defendant challenging jurisdiction distributed its product in Texas, even though its
distribution facility was run by a third party. 625 S.W.3d at 10–11. Thus, the
existence of the distribution center is some evidence that Southwire purposefully
availed itself of the Texas market.
Luciano also emphasized that the manufacturer challenging jurisdiction used a
Texas agent to market its product. Id. at 11–12. As a general principle, Luciano noted
that “direct[ing] marketing efforts to [the forum state] in the hope of soliciting sales”
may render a nonresident subject to the state’s jurisdiction in disputes “arising from
that business[.]” Id. at 10. Here, Southwire tried to distance itself from any effort to
use a Texas agent to sell its products and offered evidence that
32
[g]enerally, Southwire’s Surge Guards are not sold to the public but are
sold to unrelated distributors. Those unrelated distributors generally
resell the products to dealers, who resell to the public. The dealers are
also unrelated to Southwire. In other words, usually, Southwire is at
least twice removed from a retail customer.
As noted by the Sparkses, the quote is hedged by the use of the word “generally” in
two places—an indication that the evidence does not cover the entire universe of
Southwire’s marketing efforts.
Also, as Luciano noted, it is not the nature of the manufacturer–dealer
relationship but the intent to target a state’s market that is the focus of the
purposeful-availment analysis. Id. at 12. There is evidence that Southwire targeted the
Texas market. The Sparkses countered Southwire’s attempt to distance itself from the
sales process by producing the screenshot from a page of Southwire’s website that has
the title “Where to Buy?” and directed the viewer to “Find a Dealer Near You.” With
search criteria entered for Fort Worth, the website produced a listing for the dealer
from whom the Sparkses purchased the RV and the Southwire surge protector.
Though the page that the Sparkses attached to their response is unclear, it appears
that Southwire has a number of other dealers in Texas. So the trial court considered
evidence from which it could infer that the dealership “distancing” urged by
Southwire was pretextual. First, distancing itself from the distributor does not
insulate a seller so long as it is acting to target the Texas market. Id. at 11–12.
Second, the Sparkses offered evidence that undermined Southwire’s claim of a hands-
off approach to the marketing of its product in Texas; its website identified the entity
33
that sold the surge protector to them as a dealer for Southwire’s products and showed
that it apparently had other dealers in Texas. Utilizing a Texas dealer is a factor
establishing purposeful availment, and the Sparkses’ evidence constitutes more than a
scintilla of evidence that Southwire had such a dealer.6
To counter the Sparkses’ evidence, Southwire shrugs off the website by citing a
case from our court holding that national advertising is not specifically targeted at
Texas residents. Southwire’s argument is that
[w]hen a defendant advertises nationally, Texas residents are not
specifically targeted. Michel v. Rocket Eng’g Corp., 45 S.W.3d 658, 680
(Tex. App.—Fort Worth 2001, no pet.). There is nothing on the web
page to indicate that the website is not available to everyone on the
planet with an Internet connection. Indeed, Appellees’ evidence reflects
that anyone can type in their location to find a dealer registered to do
business near them.
This argument begs the question. The relevance of the website is not that it is an
untargeted advertisement that anyone can access. It is that Southwire is identifying a
dealer in Texas for its products. See, e.g., Sentry Select Ins. Co. v. Terex Corp., No. H-14-
2396, 2015 WL 13121260, at *2 (S.D. Tex. Feb. 3, 2015) (order) (“Here, Terex Pegson
has an official dealer not only within the United States[] but within Texas specifically.
Terex Pegson’s ‘website directs customers to Powerscreen Texas, its “official” Texas
dealer.’” (citation omitted)). As the Amarillo Court of Appeals has held, “[T]here
needs to be more than the existence of a website (whether interactive or not) to
Southwire takes issue with the Sparkses’ use of the term “registered dealer”
6
when describing United RV Sales. We interpret the term as the Sparkses’ attempting
to convey that United RV is listed “or registered” on Southwire’s website.
34
support an inference that the forum was targeted by the website owner or that the
latter directed its marketing efforts at the forum.” See Retire Happy, L.L.C. v. Tanner,
No. 07-16-00134-CV, 2017 WL 393984, at *5 (Tex. App.—Amarillo Jan. 27, 2017, no
pet.) (mem. op.). Here, there is that something more: It is the dealer relationship that
shows Southwire is directing its sales efforts to Texas.7
Southwire also tries to diminish the impact of the web page because the
Sparkses do not allege that their purchase was related to Southwire’s directions on its
web page. Southwire argues,
[The Sparkses’] own pleading establishes that [they] did not purchase a
[S]urge [G]uard because of something on a web page. Instead, [the
Sparkses] allege that they bought a [S]urge [G]uard because, “[t]he
Dealer represented to [them] that if they did not purchase the [s]urge
[p]rotector together with their purchase of the RV, it would void the
warranty on their new RV.” Thus, based on [the Sparkses’] admission,
the sale was unrelated to [Southwire’s] web presence or any contact
between [it] and Texas. [Southwire’s] web presence is too attenuated for
specific jurisdiction to attach here. [Record reference omitted.]
The court of appeals in Luciano relied on a similar rationale by holding that there could
be no purposeful availment because the plaintiffs did not choose an installer of the
spray-foam insulation based on a preexisting relationship they knew that the
insulation manufacturer had with its installer. 625 S.W.3d at 12–13. The supreme
7
Southwire cites our opinion in Anderson v. Safeway Tom Thumb, No. 02-18-
00113-CV, 2019 WL 2223582 (Tex. App.—Fort Worth May 23, 2019, pet. denied)
(per curiam) (mem. op.), in support of its argument that listing a dealer did not
establish that a claim was related to the purposeful contact. Anderson is
distinguishable. The product at issue in Anderson was a chair that was sold to a
grocery-store chain, not a product sold to a Texas consumer from a dealer identified
on the manufacturer’s website. See id. at *8.
35
court rejected this analysis because it “shifted the focus from the defendant’s
relationship with the forum state to the plaintiff’s intent. But evidence of the plaintiff’s
mental state is immaterial to the defendant’s purposeful availment.” Id. at 12.
Southwire’s argument attempts to make the same unwarranted shift from its acts of
purposeful availment to the Sparkses’ intent.
Southwire next asserts, apparently as part of its challenge to the contention that
it purposefully availed itself of doing business in Texas, that it “never sold a surge
guard like the one described in the [Sparkses’] [p]etition to any dealer in Texas.”
Again, the declaration of Southwire’s employee is not quite as categorical as its brief
portrays it to be. The declaration states,
While [the Sparkses have] not provided a serial number, lot number, or
other information about the alleged Surge Guard at issue to enable
Southwire to identify the specific device, Southwire cannot locate any
record of selling a Surge Guard with the model referenced in the
[p]etition to an RV dealer in Texas.[8]
Thus, the declaration hedges from making a categorical statement that it never sold a
surge protector of the type in question to a Texas RV dealer, leaving unanswered
questions such as whether the records it searched cover its facility for distribution or
an intermediary. And the flip side of the record is that the Sparkses’ presented
8
The declaration also states that “Southwire’s records reflect that it has not sold
the Surge Guard with the model number referenced in the [p]etition since 2015.”
How Southwire contends that this fact should impact our analysis is unclear. The
Sparkses claim that the injury-causing event occurred in late 2016. If Southwire is
arguing that the period of time between production of the Surge Guard and the
injury-causing event has some unexplained impact on the purposeful-availment
analysis, it is not clear that the time gap it relies on even exists.
36
evidence that they purchased a surge protector from an entity identified as a
Southwire dealer and that Southwire acknowledged that it manufactured that model
of surge protector. Again, Southwire, in essence, argues that the trial court was bound
to accept its view that it did not avail itself of doing business in Texas because it
claims that it has never sold a surge protector of the type at issue to a Texas RV
dealer, even though there is evidence prompting the opposite inference because the
Sparkses purchased a Southwire Surge Guard in Texas from an entity that Southwire
stated was a place where one could buy its products. Again, this is some evidence that
Southwire purposely availed itself of the Texas market for its products.
We do not have a record as well developed as the one in Luciano. But the
question is whether there is more than a scintilla of evidence to support the trial
court’s implied findings that underlie a conclusion that Southwire purposefully availed
itself of the privilege of doing business in Texas. We conclude that the trial court’s
implied findings—that Southwire targeted the Texas market and thus purposefully
availed itself of doing business in Texas—are supported by more than a scintilla of
evidence.
D. There is some evidence to support the trial court’s implied
findings that underlie a conclusion that an adequate relationship
exists between Southwire’s contacts with Texas and the Sparkses’
claims.
Having given an affirmative answer to the question of whether Southwire
purposefully availed itself of the Texas market for its products, the next question is
37
whether the Sparkses’ claims are sufficiently related to those contacts to permit the
exercise of specific jurisdiction. We conclude that they are.
We are again guided by Luciano. And Luciano followed the lead of Ford Motor
Co. in holding that there need not be a causal relationship between the claim and the
contact; an adequate noncausal connection is sufficient. Id. at 14. Luciano applied the
Ford Motor Co. analysis to a company that appears similar in size to Southwire. That is,
Luciano applied the Ford Motor Co. analysis even though the insulation manufacturer
challenging jurisdiction was not a multinational corporation like Ford and even
though its marketing efforts in the state were not decades-long in duration like Ford’s
were in the forum states where it was sued. Id. at 16–17.
Luciano focused on the following: (1) the injury occurred in the Texas
residents’ home; (2) the homeowners alleged that the defendant sold its product in
Texas and that the defendant did not claim that the sale was an isolated occurrence;
and (3) even though the homeowners could not prove that the product was
distributed by the defendant’s Texas distributor, that did not matter because “[i]t [was]
sufficient that [the manufacturer had] intended to serve a Texas market for the
insulation that the [homeowners] allege[d] injured them in this lawsuit.” Id. at 17.
As noted, the Sparkses are coy by not disclosing the state where the RV was
located when the electrical incident occurred. But they claim to be Texas
residents/citizens. They purchased the RV in Texas to be used for residential living.
Southwire does not claim that Surge Guards are not sold for use in RVs as the
38
Sparkses allege. In essence, Texas residents are claiming that they purchased the
product for use in their home, though that home was on wheels. Though not as
strong perhaps as if the injury had occurred in Texas, there was a direct impact on
Texas residents that resulted from the sale of a Southwire product in Texas.
Further, to paraphrase Luciano, “the [Sparkses] allege—and [Southwire] does
not deny—that [Southwire] sold [Surge Guards] in Texas[, and Southwire] does not
contend that the sale of [Surge Guards] . . . was an ‘isolated occurrence’ in Texas.” See
id. Certainly, Southwire bobs and weaves on this issue by claiming that it “generally”
uses unrelated distributors and “cannot locate any record” of selling the specific
model of Surge Guard that the Sparkses claim that United RV sold to them. But the
fact remains that Southwire acknowledges that it manufactured the type of Surge
Guard that the Sparkses identified in their petition, and the Sparkses claim that they
purchased the Surge Guard from a company that Southwire identifies as a dealer on
its website’s listing of where to buy its products. That same website listing appears to
show a number of Southwire dealers in Texas. Thus, the trial court was left to
reconcile what appeared to be conflicting portrayals of how Southwire distributes its
products in Texas. There is more than a scintilla of evidence that—contrary to
Southwire’s carefully phrased declaration—Southwire intended to serve the Texas
market for the Surge Guard at issue, and this establishes a relationship between
Southwire’s Texas contacts and the Sparkses’ claims.
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Also, Southwire acknowledges that it has a distribution facility in Texas for its
products. As noted, the Luciano plaintiffs’ inability to establish that the barrel of foam
insulation that they received came from the defendant’s distribution center did not
sever the necessary relationship between the claim and the contacts; the fact that the
defendant intended to serve the Texas market for the allegedly injury-causing product
was a sufficient relationship. Id. Though we have no evidence regarding what
products are distributed from Southwire’s Texas distribution facility, Southwire offers
no proof that this distribution facility does not distribute the type of Surge Guard at
issue. It offers no proof that the particular Surge Guard that the Sparkses purchased
made its way to the Texas market in some way unrelated to the distribution facility or
by some other isolated occurrence. Again, this is some evidence of a relationship
between Southwire’s contacts and the Sparkses’ claims.
We conclude that there is more than a scintilla of evidence to support implied
findings that, in turn, support a conclusion that there is a sufficient relationship
between the Sparkses’ claims and Southwire’s contacts with Texas to establish the
necessary relationship between the two for purposes of the exercise of specific
jurisdiction over Southwire.9
9
Southwire does not assert that the exercise of jurisdiction over it would violate
traditional notions of fair play and substantial justice. See Spir Star, 310 S.W.3d at
878–79 (listing considerations of fair play and substantial justice as follows: (1) “the
burden on the defendant”; (2) “the interests of the forum state in adjudicating the
dispute”; (3) “the plaintiff’s interest in obtaining convenient and effective relief”;
(4) the interstate or international judicial system’s interest in obtaining the most
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V. Conclusion
We have detailed our analysis regarding why we conclude that Southwire
purposefully availed itself of the Texas market to sell its products and why the
Sparkses’ claims are sufficiently related to those contacts to support an exercise of
specific jurisdiction over Southwire. We therefore overrule Southwire’s sole issue,
and we affirm the trial court’s order denying Southwire’s special appearance.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: November 18, 2021
efficient resolution of controversies; and (5) the shared interest of the several nations
or states in furthering fundamental substantive social policies). Thus, we do not
address that issue. Further, our resolution of this appeal on the basis of specific
jurisdiction obviates the need to discuss the issue of general jurisdiction.
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