Brigade Electronics (UK) Limited and Brigade Electronics, Inc. v. Anita Dehaney, Individually and as the of Estate of Alton Ford Sr.

Opinion issued December 17, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00044-CV
———————————
BRIGADE ELECTRONICS (UK) LTD. AND
BRIGADE ELECTRONICS INC., Appellants
V.
ANITA DEHANEY, INDIVIDUALLY AND AS THE EXECUTRIX OF
ESTATE OF ALTON FORD, SR., DECEASED, WILLIE JEFFERSON,
AND FALON IRBY, Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2017-80632
MEMORANDUM OPINION
Appellees, Anita Dehaney, individually and as the Executrix of the Estate of
Alton Ford, Sr., deceased, Willie Jefferson, and Falon Irby, brought claims against
appellants, Brigade Electronics (UK) Ltd. (“Brigade (UK)”) and Brigade
Electronics, Inc. (“Brigade (US)”), for products liability and negligence, after their
father was killed by a crane at a shipping port. In this interlocutory appeal,1
appellants challenge the trial court’s order denying their special appearances. In
their sole issue, appellants contend that the trial court erred in denying their special
appearances because appellees’ jurisdictional allegations are insufficient to invoke
personal jurisdiction and the jurisdictional evidence negates appellees’ allegations.
We affirm.
Background
Appellants are in the business of selling “back-up” alarms, i.e.,
reverse-motion alarms, including those used to warn workers of moving vehicles
and heavy equipment in industrial settings. Appellants sell their patented broadband
sound alarm (“BBS alarm” or “alarm(s)”) worldwide. They assert that their BBS
alarm, which emits a “shh-shh” or “burst of air” sound, is more audible and locatable
than a traditional tonal alarm. Thus, a person in the proximity of moving equipment
is more apt to decipher the source of the alarm and to avoid the danger. The sound
is also more localized, which reduces ambient noise on a jobsite.
Brigade (UK) is a United Kingdom private limited company, with its principal
place of business in the United Kingdom. It began selling BBS alarms in 2000.
1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7).
2
Brigade (US) is a New York corporation, with its principal place of business in
Indiana (previously, Pennsylvania). Its formation was complete in late 2005, and it
began selling BBS alarms thereafter.
During 2005, as discussed further below, the Port of Houston Authority (the
“Port”)2 sought to replace the traditional tonal alarms on its equipment and vehicles
to increase safety and to mitigate noise. The Port retained HFP Acoustical
Consultants, Inc. (“HFP”) to provide a technical evaluation of potential measures,
and HFP identified the BBS alarm as one of the viable options. In May 2005, at the
behest of the Port or HFP, a representative of Brigade (UK), Henry Morgan, visited
the Port and demonstrated the BBS alarm on a rubber-tyred (or rubber-tired) gantry
crane (“RTG crane”).3 The Port then obtained four BBS alarms from Brigade (UK)
for testing and evaluation at the Port. The Port expressed concern about the
availability of parts and inventory in the United States. In November 2005, Morgan
traveled to Texas and attended a meeting at the Port. Subsequently, the Port elected
to purchase BBS alarms for its facility.
2
The Port is a defendant in the trial court but not a party to this appeal.
3
A “gantry crane” is a crane built on a bridge-like structure, from which a load, such
as a shipping container, is suspended from a traveling trolley. See Ass’n of Marine
Underwriters of S.F., Glossary of Marine Ins. and Shipping Terms, 14 U.S.F. MAR.
L.J. 305, 356 (2002).
3
Once Brigade (US) was formed in 2005, Morgan became its chief executive
officer and general manager. In February 2006, Morgan sent an email to the Port,
directing it to the Brigade (US) “regional distributor,” “Medsafe/Gosafe”
(“Medsafe”) in Deer Park, Texas.4 Medsafe sent a Price Quote to the Port for
approximately 260 BBS alarms. Morgan again traveled to Texas to “reinforce the
relationship” with the Port. In April 2006, the Port placed an order with Medsafe
for $75,000.00 in alarms, and Brigade (US) shipped the alarms to the Port through
Medsafe. The Port installed BBS alarms on its cranes operating at its Barbours Cut
Terminal.
Eleven years later, on April 20, 2017, appellees’ father, Alton Ford, Sr., while
working as a truckdriver for Santana Trucking,5 went to the Port, Barbours Cut
Terminal, where a shipping container was to be loaded onto his truck for transport.
Appellees alleged in their petition that, when Ford arrived, a Port employee directed
him to alight from the truck and to locate the assigned container on foot. Appellees
alleged that the instruction was in violation of the Port’s policies and that Port
employees did not warn crane operators in the vicinity to halt work while Ford
searched for his container. As Ford walked among the container stacks, he did not
4
Medsafe is a defendant in the trial court but not a party to this appeal.
5
Santana Trucking is a defendant in the trial court but not a party to this appeal.
4
realize that one such operator, Terence Walker,6 was operating an RTG crane in his
path. When Ford emerged from between two stacks, the crane operated by Walker
struck and pinned Ford and dragged him to his death.
It is undisputed that the RTG crane that struck the decedent was equipped with
four BBS alarms. Appellees brought products liability and negligence claims against
Brigade (UK) and Brigade (US),7 collectively as “Brigade Electronics,” alleging that
the alarms failed to adequately warn the decedent, which caused or contributed to
his death. They alleged that the alarms were not fit for the purpose of adequately
warning those in proximity of the danger of a moving RTG crane, the alarms were
defectively designed because they did not operate at a sufficient frequency and
decibel level, and there was a foreseeable risk that the alarms would fail to warn the
decedent of the danger of the oncoming crane. They asserted that the risk could have
been reduced or avoided with a safer alternative design, which Brigade Electronics
failed to adopt. Further, Brigade Electronics was negligent in marketing their BBS
alarms for use at a marine port—a use for which the alarms are unsuitable because
their sound is diminished or blocked by shipping containers.
6
Walker is a defendant in the trial court but not a party to this appeal.
7
Although appellees also named Brigade Electronics Group, PLC (“Brigade Group”)
as a defendant, the trial court granted its special appearance and dismissed the claims
against it. Brigade Group, formed in 2009, did not exist at the time of the operative
events. Appellees also brought claims against the Port; Medsafe; Santana Trucking;
the crane manufacturer, Konecranes Finland Oy; and the crane inspector, Kempco.
Again, these defendants are not parties to this appeal.
5
Appellees alleged that “specific jurisdiction is proper over Brigade
Electronics because there are more than sufficient minimum contacts to support
jurisdiction,” and Brigade Electronics “purposefully availed themselves” of the
privileges and protections of conducting business in Texas. They alleged that
appellants “voluntarily and purposefully directed their actions toward the State of
Texas” by delivering the alarms into the stream of commerce with the expectation
that they would be purchased by Texas consumers. Further, the alarms were in fact
purchased by the Port, in Texas, “where they caused injury.”
Appellees further alleged that “Brigade Electronics” marketed the BBS alarms
“for the particular purpose of use at marine ports such as the Port of Houston, when
in fact the alarms are not suited for such purpose”; it “conducted extensive product
testing” of the alarms at the Port in Texas; it manufactured and sold the alarms with
knowledge that they would be used in Texas; and it delivered the alarms to the Port
in Texas. In addition, Brigade Electronics “maintained a contract with Medsafe
sufficient to establish a substantial connection to and minimum contacts” with
Texas. Appellees noted that the Brigade Electronics website directly solicited
contact information from Texas consumers in order to send information regarding
products and services. And, Brigade Electronics maintained a “Case Studies > Port
of Houston” page regarding its sale of BBS alarms to the Port for the purpose of
advertising the alarms to Texas markets. Appellees asserted that the interests in
6
trying the case in Texas were substantial and that the burden on Brigade Electronics
was not undue. Accordingly, the Texas trial court’s exercise of personal jurisdiction
over Brigade Electronics would not offend traditional notions of fair play and
substantial justice.
Appellants each filed a special appearance, which are substantively identical,
asserting that appellees did not meet their initial burden to plead sufficient
allegations to bring appellants within the provisions of the Texas long-arm statute.
And, appellees failed to allege that appellants “purposefully engaged in any activity
in Texas that caused injury there” and failed to demonstrate that the Texas court has
jurisdiction over them. They asserted that the United States Supreme Court has
“rejected the notion that simply placing a product into the ‘stream of commerce’—
even with the expectation that the product will reach the forum state—is enough to
establish personal jurisdiction.”
Brigade (UK) asserted that its principal place of business is in the United
Kingdom and that it “does not conduct any business activity in Texas.” It attached
the affidavit of its corporate representative, Philip Hanson-Abbott, who testified that
Brigade (UK) is not authorized to do business in Texas and does not have a registered
agent or any employees, representatives, officers, managers, or agents “currently
residing in or conducting business in Texas.” Also, it does not maintain an office,
warehouse, address, telephone number, or bank account in Texas. Its website is used
7
only for general, untargeted advertising. The website directs visitors to its dealers
for information, quotes on safety equipment, parts, and service. Brigade (UK)
asserted that haling it into a Texas court would not comport with traditional notions
of fair play and substantial justice because the complained-of acts and omissions
occurred, if at all, entirely in the United Kingdom.
Brigade (US) asserted that it is a New York corporation, has its principal place
of business in Indiana, and “does not conduct any business activity in Texas.” It
attached the affidavit of its chief executive officer, Corey Heniser, who testified that
Brigade (US) is not authorized to do business in Texas and does not have a registered
agent or any employees, representatives, officers, managers, or agents “currently
residing in or conducting business in Texas.” It does not maintain an office,
warehouse, address, telephone number, or bank account in Texas. Heniser also
testified that that the Brigade website is used only for general, untargeted
advertising. Brigade (US) asserted that haling it into a Texas court would not
comport with traditional notions of fair play and substantial justice because the
complained-of acts and omissions occurred, if at all, in New York or Indiana.
In their combined supplement, Brigade (UK) and Brigade (US) asserted that
they did not solicit the Port’s business. Rather, the Port learned about the BBS
alarms through the Port’s own consultant, HFP, whom the Port retained to evaluate
potential noise-abatement measures. In early 2005, the Port asked Brigade (UK) to
8
come to Houston to demonstrate the alarms. Brigade (UK) did not provide advice
on the use or risks of the alarms in any specific operating environment. The Port
then purchased four alarms from Brigade (UK) “for further testing.” And, HFP
performed the assessment. Morgan attended a meeting at the Port in November 2005
about purchasing BBS alarms. Subsequently, the Port elected to purchase BBS
alarms for its facility. Because the Port wanted a United States distributor to ensure
equipment availability, it purchased the alarms through its existing supplier,
Medsafe. Medsafe purchased the alarms from Brigade (US). Appellants attached
HFP’s acoustical study and excerpts of the depositions of Charlie Jenkins, a senior
director at the Port, and of Morgan, for Brigade (UK) and Brigade (US).
In their response, appellees asserted that the Texas trial court has specific
jurisdiction over Brigade (UK) and Brigade (US) because the jurisdictional facts
demonstrate that they placed the subject alarm into the stream of commerce and
purposefully targeted Texas as a market for the alarm, as follows:
1. Brigade participated in product demonstrations at the Port . . . ;
2. Brigade provided test units to the [Port] ultimately leading to the
Brigade alarms being purchased and used in the [Port], including
the alarm [at issue];
3. Brigade provided information about the efficacy and suitability
of its alarms for use in the [Port];
4. Brigade met with the [Port] to provide information about the
Brigade alarms ultimately to facilitate the sale of the Brigade
alarms to the [Port] . . . ;
9
5. Brigade created a distributorship with Medsafe (a Texas limited
partnership) to have a local company represent and sell the
Brigade alarms. . . ;
6. Brigade is the sole source for manufacture and sale of the type of
alarms they marketed to the [Port] . . . ;
7. Brigade easily sold over 700 alarms to the [Port] . . . ;
8. There were four Brigade alarms installed on the crane involved
in the accident that resulted in the death of [the decedent.]
Appellees further asserted that Brigade used its sales to the Port in its marketing
materials. Appellees attached the depositions of Morgan and Jenkins, Medsafe’s
price quote, the Port’s purchase request and order, a product insert, a Brigade (US)
ledger of Texas sales, and a Brigade press release, website page, and advertisement.
The trial court denied the special appearances.
Personal Jurisdiction
In their sole issue, appellants argue that the trial court erred in denying their
special appearances because appellees’ failed to meet their initial burden to plead
jurisdictional allegations that would support jurisdiction and because appellants’
jurisdictional evidence negates appellees’ allegations.
A. Standard of Review and Guiding Legal Principles
A court may assert personal jurisdiction over a nonresident defendant only if
the requirements of both the Fourteenth Amendment’s due process clause and the
Texas long-arm statute are satisfied. See U.S. CONST. amend. XIV, § 1; TEX. CIV.
PRAC. & REM. CODE § 17.042; Guardian Royal Exch. Assurance, Ltd. v. English
10
China Clays, P.L.C., 815 S.W.2d 223, 226–27 (Tex. 1991). The Texas long-arm
statute allows a court to exercise personal jurisdiction over a nonresident defendant
who does business in Texas. TEX. CIV. PRAC. & REM. CODE § 17.042. A nonresident
“does business” in Texas if it, inter alia, “contracts by mail or otherwise with a Texas
resident and either party is to perform the contract in whole or in part” in Texas or it
“commits a tort in whole or in part” in Texas. Id. The Texas Supreme Court has
repeatedly interpreted this statutory language “to reach as far as the federal
constitutional requirements of due process will allow.” Guardian Royal, 815
S.W.2d at 226. Thus, the requirements of the Texas long-arm statute are satisfied if
the exercise of personal jurisdiction comports with federal due process limitations.
Id.
The United States Constitution permits a state court to assert personal
jurisdiction over a nonresident defendant only if the defendant has some minimum,
purposeful contacts with the state and if the exercise of jurisdiction will not offend
traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968
S.W.2d 319, 326 (Tex. 1998). A nonresident who has purposefully availed itself of
the privileges and benefits of conducting business in the state has sufficient contacts
with the state to confer personal jurisdiction. Guardian Royal, 815 S.W.2d at 226.
The Texas Supreme Court has characterized the “purposeful availment”
requirement as the “touchstone of jurisdictional due process.” Michiana Easy Livin’
11
Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In Michiana, the court
articulated three important aspects of the purposeful availment inquiry. Id. at 785.
First, only the defendant’s contacts with the forum count. Id. This ensures that a
defendant is not haled into a jurisdiction solely by the unilateral activities of a third
party. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
Second, the acts relied on must be purposeful; a defendant may not be haled into a
jurisdiction solely based on contacts that are “random, isolated, or fortuitous.” Id.Third, a defendant “must seek some benefit, advantage, or profit by ‘availing’ itself
of the jurisdiction” because “[j]urisdiction is premised on notions of implied
consent” and by “invoking the benefits 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 (1980)).
A defendant’s contacts with a forum can give rise to either general jurisdiction
or specific jurisdiction. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,
575–76 (Tex. 2007). If the defendant has made continuous and systematic contacts
with the forum, general jurisdiction may be established whether or not the
defendant’s alleged liability arises from those contacts. Id. at 575. In contrast, when
specific jurisdiction is alleged, the focus of the minimum-contacts analysis is on the
“relationship among the defendant, the forum [,] and the litigation.” Id. at 575–76
(quoting Guardian Royal, 815 S.W.2d at 228).
12
Here, only specific jurisdiction is alleged. Specific jurisdiction is established
if the defendant’s alleged liability arises from or is related to an activity conducted
within the forum. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 796
(Tex. 2002). To constitute the minimum contacts required for a Texas court to
exercise specific personal jurisdiction over a nonresident defendant: (1) the
defendant’s contacts with Texas must be purposeful, as discussed above, and (2) the
cause of action must arise from or relate to those contacts. Old Republic Nat’l Title
Ins. Co. v. Bell, 549 S.W.3d 550, 558–59 (Tex. 2018). For a cause of action to arise
from or relate to purposeful forum contacts, “there must be a substantial connection
between those contacts and the operative facts of the litigation.” Moki Mac, 221
S.W.3d at 585.
A trial court determines a 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.” TEX. R. CIV. P. 120a(3); see Touradji v. Beach Capital P’ship, L.P., 316
S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“The plaintiff’s
original pleadings, as well as its response to the defendant’s special appearance, can
be considered in determining whether the plaintiff satisfied its burden.”).
The plaintiff bears the initial burden of pleading allegations sufficient to bring
a nonresident defendant within the provisions of the Texas long-arm statute. Am.
13
Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002). If the
plaintiff fails to plead facts bringing the defendant within reach of the long-arm
statute (i.e., for a tort claim, that the defendant committed tortious acts in Texas), the
defendant need only prove that it does not live in Texas to negate jurisdiction. Kelly
v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). If the plaintiff
meets its initial burden, then the burden shifts to the nonresident to negate the
plaintiff’s alleged bases of jurisdiction. Id. at 658.
The defendant can discharge its burden
on either a factual or legal basis. Factually, the defendant can present
evidence that it has no contacts with Texas, effectively disproving the
plaintiff’s allegations. The 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. Legally, 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. at 659.
We review a trial court’s determination of a special appearance de novo. Moki
Mac, 221 S.W.3d at 574. The existence of personal jurisdiction is a question of law,
which must sometimes be preceded by the resolution of underlying factual disputes.
Michiana, 168 S.W.3d at 790–91; Predator Downhole Inc. v. Flotek Indus., Inc.,
504 S.W.3d 394, 401 (Tex. App.—Houston [1st Dist.] 2016, no pet.). In a special
14
appearance, the trial court is the sole judge of the witnesses’ credibility and the
weight to be given their testimony. Predator Downhole, 504 S.W.3d at 402. We
will not “disturb a trial court’s resolution of conflicting evidence that turns on the
credibility or weight of the evidence.” Id. When, as here, the trial court does not
issue findings of fact or conclusions of law with its ruling, all fact findings necessary
to support the judgment and supported by the evidence are implied. Marchand, 83
S.W.3d at 795.
B. Specific Jurisdiction8
1. Jurisdictional Allegations
Appellants assert, as they did in their special appearance, that appellees did
not meet their initial burden to plead sufficient allegations to bring appellants within
the provisions of the Texas long-arm statute. See TEX. CIV. PRAC. & REM. CODE
§ 17.042; Am. Type Culture Collection, 83 S.W.3d at 807 (plaintiff bears initial
burden to plead allegations sufficient to bring nonresident within provisions of Texas
long-arm statute).
Again, the Texas long-arm statute “authorizes the exercise of jurisdiction over
a nonresident defendant who does business in Texas.” Perna v. Hogan, 162 S.W.3d
648, 652 (Tex. App.—Houston [14th Dist.] 2005, no pet); see TEX. CIV. PRAC. &
8
Because appellees concede in their response that they allege only specific, and not
general, jurisdiction over appellants, we confine our analysis accordingly. See
George v. Deardorff, 360 S.W.3d 683, 688 (Tex. App.—Fort Worth 2012, no pet.).
15
REM. CODE § 17.042. A nonresident that has purposefully availed itself of the
privileges and benefits of conducting business in Texas has sufficient contacts with
the state to confer personal jurisdiction. See Guardian Royal, 815 S.W.2d at 226.
The statute provides, as relevant here, that a nonresident does business in Texas if it
“commits a tort in whole or in part in this state.” TEX. CIV. PRAC. & REM. CODE
ANN. § 17.042(2).
In Huynh v. Nguyen, the court held that the plaintiff satisfied its initial burden
by pleading that the defendant had “conducted business in Texas and committed
torts in Texas.” 180 S.W.3d 608, 619–20 (Tex. App.—Houston [14th Dist.] 2005,
no pet.). “There is no requirement that plaintiffs or other claimants plead in their
petition the theories or bases of personal jurisdiction upon which they rely; rather,
the only relevant pleading requirement flows from the need to plead allegations
sufficient to bring nonresident defendants within the provisions of the long-arm
statute.” Id. at 619. This minimal pleading requirement is satisfied by an allegation
that the nonresident defendants are doing business in, or have committed any act in,
Texas. Id. at 619–20; see also Horizon Shipbuilding, Inc. v. BLyn II Holding, LLC,
324 S.W.3d 840, 847 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding
plaintiff’s allegation that defendants committed torts in Texas was sufficient to bring
defendants within long-arm statute). Thus, here, appellees’ were required to plead
that Brigade (UK) and Brigade (US) committed a tortious act in Texas. See Kelly,
16
301 S.W.3d at 659; Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 403 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied).
In their live petition,9 and in their response to the special appearances,10
appellees named Brigade (UK) and Brigade (US) each as a defendant, and thereafter
referred to them collectively as “Brigade Electronics.” Appellees alleged that
Brigade Electronics and its employees were negligent in marketing the BBS alarms
in Texas as suitable for use at the Port, when it fact they were not; in failing to warn
the Port about the appropriate placement and settings of BBS alarms on RTG cranes;
and in failing to use ordinary care in discharging their duties as a manufacturer and
seller of dangerous products. And, these acts and omissions were a proximate cause
of the decedent’s death in Texas and of appellees’ damages.
Appellees note that Brigade Electronics traveled to Texas three times to
market its BBS alarms to the Port and facilitate sales, participated in product
demonstrations at the Port in Texas, “conducted extensive product testing” at the
Port in Texas, made representations at the Port in Texas about the efficacy and
9
After Dehaney (the original plaintiff) filed her Fourth Amended Petition on March
14, 2019, she joined the Third Amended Petition in Intervention filed by Jefferson
and Irby. Thus, the Third Amended Petition in Intervention, filed on May 30, 2019,
was the live petition before the trial court at the time of its November 27, 2019 ruling
on the special appearances.
10
See Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.—
Houston [1st Dist.] 2010, no pet.) (considering plaintiff’s pleadings and response to
defendant’s special appearance in determining whether plaintiff met burden).
17
suitability of its BBS alarms for use on RTG cranes, sold and directly delivered
alarms to the Port in Texas, and created and maintained a contract with a Texas
distributor, Medsafe, for the purpose of selling its alarms in Texas.
Appellees also alleged that Brigade Electronics defectively designed the BBS
alarms, so as to render them unreasonably dangerous; that a safer alternative design
existed, which Brigade Electronics failed to adopt; and that the defect was a
producing cause of the decedent’s death in Texas.11
Thus, appellees’ alleged that Brigade Electronics, i.e., Brigade (UK) and
Brigade (US), committed tortious acts, in whole or in part, in Texas. See VIA Metro.
Transit v. Meck, No. 18-0458, 2020 WL 3479509, at *9 (Tex. June 26, 2020)
(negligence); Robins v. Kroger Co., 982 S.W.2d 156, 160 (Tex. App.—Houston [1st
Dist.] 1998, no pet.) (products liability). We conclude that appellees met their initial
burden to plead sufficient allegations to invoke jurisdiction over Brigade (UK) and
Brigade (US) under the Texas long-arm statute. See TEX. CIV. PRAC. & REM. CODE
§ 17.042; Am. Type Culture Collection, 83 S.W.3d at 807; Horizon Shipbuilding,
324 S.W.3d at 847 (holding plaintiff’s allegation that defendants committed torts in
Texas was sufficient to bring defendants within long-arm statute).
11
The elements of a products liability claim alleging a design defect are that (1) the
product was defectively designed so as to render it unreasonably dangerous; (2) a
safer alternative design existed; and (3) the defect was a producing cause of the
injury for which the plaintiff seeks recovery. Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 311 (Tex. 2009).
18
On appeal, appellants argue for the first time that appellees’ allegations are
insufficient to support jurisdiction “due to improper group pleading that attempts to
assign the same alleged instance of conduct” to both Brigade (UK) and Brigade
(US). They assert that appellees do not identify which of the named Brigade
defendants is the subject of each of their allegations. For instance, “[m]ultiple
entities cannot have made the same sale to MedSafe.” And, “[t]hus, Brigade was
not required to provide evidence disproving jurisdictional allegations and the special
appearance should have been granted on that basis alone.”
Generally, when a case involves multiple defendants, the plaintiff must
specify, and the court must examine, “each defendant’s actions and contacts with the
forum separately”; the defendants’ contacts cannot be aggregated. Morris v.
Kohls-York, 164 S.W.3d 686, 693 (Tex. App.—Austin 2005, pet. dism’d); see
Calder v. Jones, 465 U.S. 783, 790 (1984). “The requirements of International
Shoe . . . must be met as to each defendant over whom a state court exercises
jurisdiction.” Rush v. Savchuk, 444 U.S. 320, 331–32 (1980).
However, appellants do not direct us to any point in the record in which they
raised this issue in the trial court. The failure to preserve a due-process complaint
in the trial court results in waiver of the issue on appeal. See In re L.M.I., 119 S.W.3d
707, 711 (Tex. 2003); see also Burger King, 471 U.S. at 472 n.14 (“[T]he personal
19
jurisdiction requirement is a waivable right . . . .”); In re Fisher, 433 S.W.3d 523,
532 (Tex. 2014) (“Objections to personal jurisdiction may be waived.”).
Moreover, in Carey v. State, two defendants, the Careys, asserted that the
State’s jurisdictional allegations were insufficient because they improperly referred
to all four defendants named in the suit as an aggregate group and failed to specify
which alleged acts were committed by which defendants. No. 04-09-00809-CV,
2010 WL 2838631, at *1, 4 (Tex. App.—San Antonio July 21, 2010, pet. denied)
(mem. op.). There, as here, the plaintiff specifically named each defendant in its
petition, including each of the Careys, and thereafter referred to all of them
collectively as “Defendants” in stating the allegations. Id. at *4. The court
concluded that the allegations, when considered together and liberally construed,
asserted that the Careys committed fraudulent business practices in Texas, i.e.,
committed torts, which was all that was required under the Texas long-arm statute.
Id. at *5 (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004) (holding that courts liberally construe pleadings in favor of pleader
when determining whether pleader alleged sufficient facts to confer jurisdiction)).
Further, if a pleading is wholly devoid of jurisdictional facts, the plaintiff
should amend the pleading to include the necessary factual allegations, see TEX. R.
CIV. P. 63, thereby allowing jurisdiction to be decided based on evidence rather than
on allegations. Kelly, 301 S.W.3d at 659. Thus, even were we to conclude that
20
appellees’ allegations are insufficient, the remedy would be a remand to the trial
court. See, e.g., Energy Search Co. Inc. v. RLI Ins. Co., No. 14-18-00747-CV, 2019
WL 6711427, at *3 (Tex. App.—Houston [14th Dist.] Dec. 10, 2019, no pet.) (mem.
op.) (remanding, in part, based on plaintiff’s failure to plead sufficient facts to confer
jurisdiction over defendants).
2. Jurisdictional Facts
We next consider whether Brigade (UK) and Brigade (US) met their burden
to present evidence negating the alleged bases for personal jurisdiction.12 See Kelly,
301 S.W.3d at 659. And, if so, whether appellees responded with their own evidence
affirming their allegations. See id.
Again, the purposeful-availment analysis first considers whether a
defendant’s contacts with the forum were “random, isolated, or fortuitous” and
whether the defendant sought some “benefit, advantage, or profit by availing itself
of the jurisdiction.” Moki Mac, 221 S.W.3d at 575. “It is the quality and nature of
12
Generally, we determine specific jurisdiction on a claim-by-claim basis. See Seiferth
v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274–75 (5th Cir. 2006) (specific
jurisdiction is claim-specific inquiry because “the Due Process Clause prohibits the
exercise of jurisdiction over any claim that does not arise out of or result from the
defendant’s forum contacts”); see, e.g., Kelly v. Gen. Interior Constr., Inc., 301
S.W.3d 653, 660 (Tex. 2010) (addressing jurisdictional allegations for fraud claim
separately from trust-fund claims). However, we need not assess a defendant’s
contacts on a claim-by-claim basis when, as here, all claims essentially arise from
the same forum contacts. See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d
142, 150–51 (Tex. 2013); Touradji, 316 S.W.3d at 26. We discuss the facts related
to Brigade (UK) and Brigade (US) together because the facts are intertwined. See
TEX. R. APP. P. 47.1.
21
the defendant’s contacts, rather than their number, that is important.” Am. Type
Culture Collection, 83 S.W.3d at 806.
“[A] seller’s awareness ‘that the stream of commerce may or will sweep [its]
product into the forum State does not convert the mere act of placing the product
into the stream into an act purposefully directed toward the forum State.” See Spir
Star AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010) (internal quotations omitted);
see also Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., 480 U.S. 102 (1987)
(plurality opinion). “Instead, our precedent generally follows Justice O’Connor’s
plurality opinion in Asahi, which requires some ‘additional conduct’—beyond
merely placing the product in the stream of commerce—that indicates ‘an intent or
purpose to serve the market in the forum State.’” Spir Star AG, 310 S.W.3d at 873
(quoting Asahi, 480 U.S. at 112, and citing Moki Mac, 221 S.W.3d at 577, and
Michiana, 168 S.W.3d at 786). Such “additional conduct” might include:
(1) designing the product for the market in the forum State, (2) advertising in the
forum State, (3) establishing channels for providing regular advice to customers in
the forum State, and (4) marketing the product through a distributor who has agreed
to serve as the sales agent in the forum State. Asahi, 480 U.S. at 112; Spir Star AG,
310 S.W.3d at 873. A seller who reaches out beyond one state and creates continuing
relationships with residents of another state is subject to the specific jurisdiction of
the latter in suits arising from those activities. Michiana, 168 S.W.3d at 785.
22
a. Brigade (UK)
Appellees assert that Brigade (UK) has sufficient minimum contacts with
Texas because, as pertinent here, it:
• traveled to Texas three times to market BBS alarms to the Port
• demonstrated a BBS alarm on an RTG crane at the Port in Texas
• “conducted extensive product testing” at the Port in Texas
• made representations at the Port in Texas about the efficacy and
suitability of its BBS alarms for use on RTG cranes
• sold and directly delivered alarms to the Port in Texas
• “created a distributorship with Medsafe (a Texas limited
partnership) to have a local company represent and sell the
Brigade alarms”
In its special appearance, Brigade (UK) asserted that its jurisdictional
evidence negates appellees’ allegations that it purposefully directed acts toward
Texas. See Kelly, 301 S.W.3d at 659. Appellees asserted in their response that their
evidence in rebuttal establishes that the exercise of jurisdiction was proper. Id.
There is no jurisdictional evidence that Brigade (UK) designed the BBS
alarms for the Texas market. See Asahi, 480 U.S. at 112; Spir Star AG, 310 S.W.3d
at 873.
With respect to appellees’ allegations that Brigade (UK) traveled to Texas
three times to market its BBS alarms to the Port, demonstrated a BBS alarm on an
RTG crane at the Port in Texas, conducted product testing, made representations at
the Port about the efficacy and suitability of the alarms for use on RTG cranes, and
23
sold and directly delivered BBS alarms to the Port, Brigade (UK) asserts that it did
not initiate any of these contacts and that these actions were precipitated by requests
from the Port or HFP. Further, it did not conduct product testing or provide
information about the efficacy or suitability of the BBS alarms for use in any specific
Port operations. In support, Brigade (UK) attached HFP’s report and excerpts of the
depositions of Morgan and of the Port’s corporate representative, Charlie Jenkins.
Morgan testified that, in May 2005, at the invitation of either the Port or HFP,
he traveled to Texas and performed a demonstration at the Port of the BBS alarm’s
capabilities. He testified that the unit was “tested” on a leg of an RTG crane. And,
the demo resulted in the sale of four alarms for further evaluation. At the time,
Brigade (US) was in its early stages of formation as a business entity, and was not
yet functional, and Brigade (UK) did not yet have a relationship with Medsafe.
Accordingly, Brigade (UK) shipped the alarms directly from the United Kingdom to
the Port. He testified that the Port’s consultant, HFP, then performed testing and
analysis. In November 2005, Morgan attended a meeting at the Port, at which
various Port personnel discussed whether to purchase the BBS alarms. In February
2006, after the Port had decided to purchase the alarms, Morgan traveled to Texas
to thank Jenkins for the sales and “just to reinforce the relationship because there are
plenty of other things that we supply into ports.”
24
Jenkins also testified that the Port first learned about Brigade (UK) through
its consultant, HFP. In 2005, in constructing the Bayport terminal, the Port retained
HFP to assist with the federal permitting requirements. As part of the project, HFP
evaluated potential noise-mitigation measures and identified the BBS alarm as one
of the options. Jenkins testified that Brigade (UK) provided or sold four BBS alarms
to the Port for evaluation. The alarms were installed on an RTG crane, and HFP and
the Port performed evaluations with a number of stakeholders, including contractors
and crane operators. Jenkins noted that the Port did not involve vendors because of
the potential for bias. Similarly, the Port did not look to Brigade (UK) to perform a
suitability or risk assessment with respect to using the alarms on its RTG cranes.
The decision in 2006 to purchase the BBS alarms involved the Port, contractors, and
skilled trades, with the final decision by the Port Commission.
Brigade (UK)’s decisions to travel to Texas three times to demonstrate its BBS
alarms on an RTG crane at the Port and to market its BBS alarms, and its other
products, to the Port were purposeful and not simply random or fortuitous. See Moki
Mac, 221 S.W.3d at 575; see also Retamco Operating, Inc. v. Republic Drilling Co.,
278 S.W.3d 333, 340 (Tex. 2009) (concluding that defendant went “well beyond
answering a phone call from a Texas resident or shipping goods to Texas”); Smart
Call, L.L.C. v. Genio Mobile, 349 S.W.3d 755, 765 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (holding “decision to travel to Texas to conduct business can
25
only be classified as a purposeful act, and not random, fortuitous, or attenuated”).
The trial court could have reasonably concluded that Brigade (UK) sought a “benefit,
advantage, or profit by availing itself of the jurisdiction.” See Moki Mac, 221
S.W.3d at 575; see also Predator Downhole, 504 S.W.3d at 402 (noting trial court
is sole judge of witnesses’ credibility and weight to be given testimony). Thus, by
purposefully conducting business in Texas, with a Texas resident, Brigade (UK)
purposefully availed itself of the privilege of conducting business in Texas. See Max
Protetch, Inc. v. Herrin, 340 S.W.3d 878, 887 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (holding defendant who voluntarily came to Texas and purposefully
conducted business with Texas resident “crossed a bright line and purposefully
availed itself of the privilege of conducting business in Texas”).
With respect to appellees’ allegation that Brigade (UK) “created a
distributorship with Medsafe (a Texas limited partnership) to have a local company
represent and sell the Brigade alarms,” Brigade (UK) asserted that Medsafe “was an
existing supplier to the Port.” (Emphasis added.) In support, Brigade (UK) pointed
to Morgan’s testimony. In the cited testimony, however, Morgan states: “I can’t
remember . . . . So my guess is Medsafe were already supplying the Port, became
aware of the opportunity, and then approached us but that is my best guess.”
“Evidence that is so slight as to make any inference a guess is in legal effect no
evidence.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 795 (Tex. 2006).
26
Brigade (UK) also points to Jenkins’s testimony that the Port “requested
Brigade to have a U.S. distribution company or distributor so that [it] had more
[assurance] of availability of equipment.” This supports appellees’ allegation.
Appellees’ evidence shows that Jenkins also testified that Port operations “requested
from Brigade a U.S. supplier to ensure [that the Port] had viability of supply, and
Brigade provided Medsafe.” (Emphasis added.) Morgan further testified that
Medsafe became an “authorized dealer” in “late 2005,” that the purpose of
establishing a relationship with Medsafe was to facilitate the Port sale, and that
Brigade extended Medsafe a line of credit to facilitate the purchase and sale of
Brigade’s products. Morgan noted that Medsafe was an “authorized dealer” for
replacement parts and that it provided support for Brigade products to Houston
customers. And, once Medsafe was in place, Brigade (US), also created in 2005,
became the supplier. Appellees’ evidence also includes Brigade’s product
instructions, which direct Brigade customers to its suppliers to address questions.
Marketing through a distributor who has agreed to serve as the sales agent in
the forum and establishing channels for providing regular advice to customers there
constitutes “additional conduct”—beyond merely placing the product into the stream
of commerce—indicating “an intent or purpose to serve the market in the forum
State.” See Asahi, 480 U.S. at 112; see Spir Star AG, 310 S.W.3d at 873.
27
In Semperit Technische Produkte Gesellschaft M.B.H. v. Hennessy, a drilling
rig worker was killed when a high-pressure hydraulic hose failed. 508 S.W.3d 569,
572 (Tex. App.—El Paso 2016, no pet.). The plaintiffs sued STP, the Austrian hose
manufacturer, and SIP, its New Jersey subsidiary that distributed the hose. Id.572–73. STP argued that its contacts with the forum did not fit the stream of
commerce “plus factors” in Asahi Metals because it did not design a product for
Texas, did not advertise in Texas, did not develop regular communication channels
with Texas customers, and did not have a distributor who agreed to serve as the sales
agent in Texas. Id. at 579. The court of appeals concluded: “While we may agree
that the facts of this case do not squarely fit into the examples offered by Asahi
Metals, we don’t perceive those four examples to be exclusive of the kind of factors
that guide this question.” Id. The court concluded that the “plus factor” present
there was that STP had established a sales subsidiary in New Jersey, had targeted
Texas, through its president visiting potential customers, and had participated in a
“distribution network that in fact ha[d] resulted in STP selling millions of dollars of
goods to Texas customers.” Id. The volume of sales “elevate[d] this case beyond
the ‘random,’ fortuitous,’ or ‘attenuated’ contacts alluded to in Burger King.” Id. at
579–80 (citing Burger King, 471 U.S. at 475–76). In affirming the denial of STP’s
special appearance, the court concluded that these factors demonstrated purposeful
availment of the Texas marketplace. Id. at 580, 587.
28
Here, like in Hennessy, the “plus factor” is the distribution network that
Brigade (UK) set up in 2005, with respect to Brigade (US) and Medsafe, and that,
since 2005, has resulted in selling “easily over” 700 BBS alarms to the Port and
“hundreds of thousands of dollars” in products in Texas. See id. at 579–80. As the
Michiana court acknowledged, a single contract can give rise to personal jurisdiction
when the contract “involves many contacts over a long period of time,” as here. 168
S.W.3d at 787 (emphasis added). The contacts of “[s]ellers who reach out beyond
one state and create continuing relationships and obligations with citizens of another
state” are purposeful rather than fortuitous. Id. at 785. When, as here, the evidence
shows that a nonresident defendant “has created continuing obligations” between
itself and residents of the forum, the nonresident defendant “manifestly has availed
[itself] of the privilege of conducting business there.” See Burger King, 471 U.S. at475–76. And, because such defendant’s activities are “shielded by ‘benefits’ and
‘protections’ of the forum’s laws, it is presumptively not unreasonable to require [it]
to submit to the burdens of litigation in that forum as well.” Id. at 476.
On appeal, Brigade (UK) again asserts that its contacts with the Port “were
the result of a Texas resident’s actions—and were thus fortuitous and not
purposeful.” It asserts that the Port “initiated contact with Brigade,” “sought to have
Brigade come to the Port to demonstrate its products,” and “directed Brigade to
create a distribution arrangement with Medsafe.” It asserts that “the party who
29
instigated the contacts . . . is in fact crucial . . . to determining whether the contact
was purposeful on behalf of Brigade” and is a “central legal issue in this case.”
Courts have held that the issue of “who initiated contact” and the frequency
of solicitations is important in determining whether a defendant purposefully availed
itself of the forum in a buy-sell case. See Peters v. Top Gun Exec. Grp., 396 S.W.3d
57, 69 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Michiana, 168
S.W.3d at 784 (holding no purposeful availment when, inter alia, the sale was
initiated entirely by resident-buyer who called nonresident-seller)). However, this
factor is “less influential on the analysis when the parties . . . anticipate a long-term
commercial relationship involving multiple contacts,” as occurred in this case. See
id. (citing H. Heller & Co. v. La.-Pac. Corp., 209 S.W.3d 844, 852 (Tex. App.—
Houston [14th Dist.] pet. denied) (finding personal jurisdiction even though resident-
buyer initiated contact with nonresident-seller because transaction involved multiple
sales between parties)).
We conclude that Brigade (UK) purposefully availed itself of the privilege of
conducting activities in Texas. See Retamco Operating, 278 S.W.3d at 340.
We next consider whether there is a sufficient relationship between Brigade
(UK)’s contacts with Texas and the cause of action. See id. That is, we consider
whether the alleged liability of Brigade (UK) arises from or relates to its activity
conducted within Texas. See Bell, 549 S.W.3d at 558 (holding that minimum
30
contacts for exercise of specific personal jurisdiction require that defendant’s
contacts with forum be purposeful and that cause of action arises from or relates to
those contacts); Marchand, 83 S.W.3d at 796. It is not sufficient that a defendant
merely have a role in a chain of events. See Michel v. Rocket Eng’g Corp., 45
S.W.3d 658, 671 (Tex. App.—Fort Worth 2001, no pet.) (noting that “generalized
‘but for’ relationship between the forum and a non-resident defendant falls far short
of meeting the requirement for specific jurisdiction”). Rather, for a cause of action
to arise from or relate to purposeful forum contacts, “there must be a substantial
connection between those contacts and the operative facts of the litigation.” Moki
Mac, 221 S.W.3d at 585.
Appellees assert product liability and negligence claims. They allege that the
alarms were not fit for the purpose of adequately warning those in proximity of the
danger of an approaching crane; the alarms were defectively designed because they
did not operate at a sufficient frequency and decibel level; there was a foreseeable
risk that the alarms would fail to warn the decedent of the danger of the oncoming
crane; the risk could have been reduced or avoided with a safer alternative design,
which Brigade Electronics failed to adopt; and Brigade Electronics was negligent in
marketing the BBS alarms for use at a marine port.
The issue of whether defects in the design, and negligence in the application,
of the four BBS alarms on the RTG crane at issue caused a failure to adequately
31
warn the decedent of the oncoming crane and contributed to his death are operative
facts in this litigation, and Brigade (UK)’s contacts in marketing the BBS alarms on
an RTG crane in Texas and selling its BBS alarms to the Port in Texas are directly
related. Thus, Brigade (UK)’s contacts, discussed above, are substantially connected
to the operative facts of the litigation. See Nogle & Black Aviation, Inc. v. Faveretto,
290 S.W.3d 277, 284 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding
“issue of whether negligence in the design and inspection of the wing spar
modification . . . caused the wing separation on the accident aircraft [was] an
operative fact in [the] litigation . . . .” and contacts with Texas were directly related);
see also World–Wide Volkswagen, 444 U.S. at 297 (“[I]f the sale of a product of a
manufacturer . . . is not simply an isolated occurrence, but arises from the efforts of
the manufacturer . . . to serve directly or indirectly, the market for its product in other
States, it is not unreasonable to subject it to suit in one of those States if its allegedly
defective merchandise has there been the source of injury to its owner or to others.”).
Finally, when, as here, a nonresident defendant has purposefully established
minimum contacts with the forum state, “[o]nly in rare cases” will the exercise of
jurisdiction not comport with fair play and substantial justice.” Guardian Royal,
815 S.W.2d at 231. To evaluate this component, we consider Brigade (UK)’s
contacts in light of:
(1) the burden on the defendant;
32
(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 efficient resolution of controversies; and
(5) the shared interest of the several nations or states in furthering
fundamental substantive social policies.
Id. To defeat jurisdiction, Brigade must present “a compelling case that the presence
of some consideration would render jurisdiction unreasonable.” Id.
Here, Brigade (UK), in its special appearance, asserted that the Texas trial
court’s exercise of jurisdiction in this case would be unreasonable “because it has
not done anything to purposefully avail itself of the benefits of conducting business”
in Texas and because the “acts and omissions alleged against [it] occurred entirely
in the United Kingdom, if at all.” We concluded above that Brigade (UK)
purposefully availed itself of the benefits of conducting business in Texas and that
the alleged acts and omissions occurred in Texas. Brigade (UK) did not, in its special
appearance, otherwise address the factors above. See id. Thus, we have no other
basis for concluding that an exercise of jurisdiction would violate traditional notions
of fair play and substantial justice.
In sum, Brigade (UK) did not merely place its products into a stream of
commerce that happened to carry them to Texas. See Spir Star AG, 310 S.W.3d at
880. Rather, Brigade (UK) physically entered the jurisdiction with the purpose of
selling its product to the Port and established a new distributor relationship to
33
facilitate long-term sales. Thus, Brigade (UK) “intended to serve the Texas market.”
See id. And, its potential liability arises out of its contacts with Texas. See Moki
Mac, 221 S.W.3d at 585. Finally, exercising personal jurisdiction over Brigade
(UK) does not offend traditional notions of fair play and substantial justice. See
Guardian Royal, 815 S.W.2d at 231. We conclude that the pleadings and
jurisdictional evidence establish the trial court’s jurisdiction over Brigade (UK). We
hold that the trial court did not err in denying its special appearance.
b. Brigade (US)
In its special appearance, Brigade (US) asserted that the jurisdictional
evidence negates appellees’ allegations. See Kelly, 301 S.W.3d at 659. Appellees
asserted in their response that their evidence in rebuttal established that the exercise
of jurisdiction was proper. See id.
Appellees’ alleged that Brigade (US) “maintained a Texas distributor,
Medsafe, for the purpose of selling its alarms in Texas over time,” and Brigade (US)
has sold hundreds of alarms to the Port through Medsafe.
Brigade (UK), above, asserted in its special appearance that the Port ordered
BBS alarms through Medsafe and that “Medsafe would have purchased the alarms
from Brigade Electronics, Inc.,” i.e., Brigade (US). Brigade (UK) stated: “Only one
of the defendants, Brigade Electronics, Inc., [Brigade (US)] sold the alarms to
34
another company [Medsafe], who in turn sold them to the Port of Houston
Authority.”
Morgan testified that, after Brigade (UK) made two sales of alarms to the Port
for evaluation, all of the sales to the Port that followed were by Brigade (US),
through its Texas distributor, Medsafe. Morgan noted that Medsafe was an
“authorized dealer” for replacement parts and that it provided support for Brigade
products to Houston customers. Appellees’ evidence includes Brigade’s product
instructions that accompany the alarms, which directs Brigade customers to its
suppliers to address any questions. Appellees also presented a February 2006 price
quote that Medsafe sent to the Port for approximately 260 alarms; a March 27, 2006
Request for Port Commission Action; and an April 2006 Purchase Order by the Port,
to Medsafe, for $75,000.00. Morgan testified that, “[o]ver a period of time,” the
Port purchased “hundreds” of alarms. Appellees presented a 36-page spreadsheet of
Brigade (US) sales in Texas, including to Medsafe. It reflects that sales from
Brigade (US) to Medsafe began in 2005 and continued through 2012. Morgan
testified that, since 2005, Brigade (US) has sold “hundreds of thousands” of dollars
in products to Texas customers.
Morgan noted that, beginning in late 2005, Brigade (US) employed a sales
representative, Vance Fellers, who was assigned a sales territory consisting of
eastern Texas, including the Port. Fellers had a price list, maintained alarms for
35
customer evaluations, could accept orders from end users, and could set up new
distributorships, with approval by Brigade (US). Morgan noted that the “accounts
always buy directly from” Brigade (US), and “[t]he agent is there to try and make
sure the accounts keep buying from us.”
Again, marketing a product through a distributor who has agreed to serve as
the sales agent in the forum constitutes “additional conduct”—beyond merely
placing the product into the stream of commerce—that indicates “an intent or
purpose to serve the market in the forum State.” See Asahi, 480 U.S. at 112. By
marketing the BBS alarms through a distributor who has agreed to serve as the sales
agent in Texas, Brigade (US) has met Asahi’s “additional conduct standard.” See
Spir Star AG, 310 S.W.3d at 875 (“[B]y marketing [its] product through a distributor
who has agreed to serve as the sales agent in the forum state, AG has met Asahi’s
additional conduct standard.” (internal quotations omitted)). A single contract can
give rise to personal jurisdiction when the contract “involves many contacts over a
long period of time,” as here. Michiana, 168 S.W.3d at 787. And, the contacts of
“[s]ellers who reach out beyond one state and create continuing relationships and
obligations with citizens of another state” are purposeful rather than fortuitous. Id.
at 785.
Further, appellees’ claims arise from, or are related to, Brigade (US)’s Texas
contacts. See Moki Mac, 221 S.W.3d at 585 (holding that, “for a nonresident
36
defendant’s forum contacts to support an exercise of specific jurisdiction, there must
be a substantial connection between those contacts and the operative facts of the
litigation”); Marchand, 83 S.W.3d at 796 (holding specific jurisdiction is established
if defendant’s alleged liability arises from or is related to activity conducted within
forum). Again, Brigade (UK) asserted, and Morgan testified, that after Brigade (UK)
made two sales of alarms to the Port for evaluation, all of the sales to the Port that
followed were by Brigade (US), through its Texas distributor, Medsafe. Thus, the
trial court could have reasonably concluded that the alarms at issue were sold to the
Port by Brigade (US). The issue of whether negligence in the application of the four
BBS alarms on the RTG crane at issue caused a failure to adequately warn the
decedent of the oncoming crane and contributed to his death are operative facts in
the litigation, and Brigade (US)’s contacts in selling the very alarms at issue, through
its authorized distributor, to the Port in Texas are directly related. Thus, Brigade
(US)’s contacts are substantially connected to the operative facts of the litigation.
See Hennessy, 508 S.W.3d at 584.
Again, when, as here, a nonresident defendant has purposefully established
minimum contacts with the forum state, “[o]nly in rare cases” will the exercise of
jurisdiction not comport with fair play and substantial justice. Guardian Royal, 815
S.W.2d at 231. To evaluate this component, we consider Brigade (US)’s contacts in
light of:
37
(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 efficient resolution of controversies; and
(5) the shared interest of the several nations or states in furthering
fundamental substantive social policies.
Id. To defeat jurisdiction, Brigade (US) must present “a compelling case that the
presence of some consideration would render jurisdiction unreasonable.” See id.
Here, Brigade (US), in its special appearance, asserted that the Texas trial
court’s exercise of jurisdiction in this case would be unreasonable “because it has
not done anything to purposefully avail itself of the benefits of conducting business”
in Texas and because the “acts and omissions alleged against [it] occurred entirely
in New York or Indiana, if at all.” We concluded above that Brigade (US) did
purposefully avail itself of the benefits of conducting business in Texas and
appellees allege acts and omissions that occurred in Texas. Moreover, Brigade (US)
did not, in its special appearance, address any of the Guardian Royal factors above.
See id. Thus, here again, we have no basis for concluding that exercise of
jurisdiction would violate traditional notions of fair play and substantial justice.
In sum, Brigade (US), like its counterpart, did not merely place its products
into a stream of commerce that happened to carry them to Texas. See Spir Star AG,
310 S.W.3d at 880. Rather, it maintained a distributor relationship to facilitate long-
38
term sales. Thus, Brigade (US) “intended to serve the Texas market.” See id. And,
its potential liability arises out of its contacts with Texas. Finally, exercising
personal jurisdiction over Brigade (US) does not offend traditional notions of fair
play and substantial justice. We conclude that the pleadings and jurisdictional
evidence establish the trial court’s jurisdiction over Brigade (US). We hold that the
trial court did not err in denying its special appearance.
We overrule appellants’ sole issue.
Conclusion
We affirm the trial court’s order denying the special appearances of Brigade
(UK) and Brigade (US).
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Hightower and Adams.
39