                                            OPINION
                                       No. 04-11-00610-CV

                                          Amy FIELDS,
                                           Appellant

                                                 v.

                           KLATT HARDWARE & LUMBER, INC.,
                                      Appellee

                   From the 79th Judicial District Court, Jim Wells County, Texas
                                 Trial Court No. 09-09-48404-CV
                          Honorable Richard C. Terrell, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: June 20, 2012

AFFIRMED

           Appellant Amy Fields asserts she received chemical burns on her arms when drain

cleaner splashed on her as she opened the container. Fields sued the seller, Klatt Hardware and

Lumber, Inc., and the manufacturer, Masterjack Services, Inc., for damages. Masterjack never

answered or appeared. The trial court concluded Klatt was immune from liability under Texas

Civil Practice and Remedies Code section 82.003 and granted Klatt’s traditional motion for
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summary judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 82.003 (West 2011). We affirm

the trial court’s judgment.

                                         BACKGROUND

       Amy Fields purchased a bottle of Masterjack Drain Opener from the Klatt Hardware and

Lumber, Inc. store in Orange Grove, Texas. Masterjack Drain Opener is manufactured by

Masterjack Services, Inc., a Colorado corporation that does not have a regular place of business

or a designated agent for service of process in Texas. According to Fields, when she opened the

flexible container, some of the drain cleaner splashed onto her hands and arms. She asserts she

suffered second and third degree chemical burns from the drain cleaner.

       Fields alleged that the product was defective, and she sued Klatt and Masterjack. She

obtained personal service on Masterjack’s president, Donald Melton, in Colorado. She also

served Masterjack through the Texas Secretary of State in accordance with the long-arm statute.

See TEX. CIV. PRAC. & REM. CODE ANN. § 17.041–.045 (West 2008). As of the date of the

summary judgment, Masterjack had not answered or appeared. As discussed further below,

section 82.003 of the Texas Civil Practice and Remedies Code provides that a nonmanufacturing

seller of a defective product is generally not liable for harm caused by that product. See id.

§ 82.003(a) (West 2011). However, there is a provision that permits the plaintiff to proceed

against a nonmanufacturing seller if the product’s manufacturer is “not subject to the jurisdiction

of the court.” Id. § 82.003(a)(7)(B).

       In its traditional motion for summary judgment, Klatt sought to establish that Masterjack

was subject to the jurisdiction of the court and (1) asserted it had served Masterjack, (2) offered

an affidavit averring Masterjack’s minimum contacts with Klatt in Texas, (3) insisted that there

were no genuine issues of material fact, and (4) contended that summary judgment was proper



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because it had secured personal jurisdiction over Masterjack and it was entitled to judgment as a

matter of law. The trial court severed Fields’s and Klatt’s claims against Masterjack, abated the

severed cause, and granted Klatt’s motion for summary judgment that Fields take nothing against

Klatt. Fields appeals the trial court’s judgment.

                                  TRADITIONAL SUMMARY JUDGMENT
A. Summary Judgment Requirements

        A traditional summary judgment is proper if the summary judgment evidence shows that

“there is no genuine issue as to any material fact and the moving party is entitled to judgment as

a matter of law.” TEX. R. CIV. P. 166a(c); see Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548–49 (Tex. 1985). In its live pleading, a party’s admission of a fact that is adverse to its

position can be competent summary judgment evidence. Withrow v. State Farm Lloyds, 990

S.W.2d 432, 436 (Tex. App.—Texarkana 1999, pet. denied); see Gambrinus Co. v. Galveston

Beverage, Ltd., 264 S.W.3d 283, 289 n.4 (Tex. App.—San Antonio 2008, pet. denied). Further,

“summary judgment may be based on uncontroverted testimonial evidence of an interested

witness . . . if the evidence is clear, positive and direct, otherwise credible and free from

contradictions and inconsistencies, and could have been readily controverted.” TEX. R. CIV. P.

166a(c); accord Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (per curiam).

B. Standard of Review

        We review the grant of a traditional motion for summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Dove v. Graham, 358 S.W.3d 681,

684 (Tex. App.—San Antonio 2011, pet. denied).                  In this case Klatt moved for summary

judgment on an exception to liability for which he ultimately had the burden of proof. 1 The


1
 Section 82.003 grants immunity to liability to nonmanufacturing sellers unless the claimant proves the
manufacturer is “not subject to the jurisdiction of the court.” TEX. CIV. PRAC. & REM. CODE ANN. § 82.003. If the

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standard for reviewing Klatt’s summary judgment is whether the summary judgment proof

shows that “there is no genuine issue of material fact and that [Klatt] is entitled to judgment as a

matter of law.” See Nixon, 690 S.W.2d at 548; Gibbs v. Gen. Motors Corp., 450 S.W.2d 827,

828 (Tex. 1970). In deciding whether there is a disputed material fact issue precluding summary

judgment, “evidence favorable to the non-movant will be taken as true.” Nixon, 690 S.W.2d at

549. “Every reasonable inference must be indulged in [Fields’s] favor . . . and any doubts will be

resolved in [her] favor.” See id. “A defendant moving for summary judgment on an affirmative

defense has the burden to conclusively establish that defense.” Havlen v. McDougall, 22 S.W.3d

343, 345 (Tex. 2000); Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex. App.—San Antonio

2003, no pet.).

                                        STATUTORY INTERPRETATION

         The issue in this case revolves around the interpretation of subsections (a)(7)(B) and (c)

of section 82.003. See TEX. CIV. PRAC. & REM. CODE ANN. § 82.003(a)(7)(B), (c). To ascertain

the legislature’s intent for a particular statute, we begin with the statute’s plain language. Bragg

v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002). “The plain meaning of the text is the

best expression of legislative intent unless a different meaning is apparent from the context or the

plain meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411

(Tex. 2011); accord City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008). We

review questions of statutory interpretation de novo. See Molinet, 356 S.W.3d at 411; City of

Rockwall, 246 S.W.3d at 625.




manufacturer is served through the secretary of state as required and the manufacturer fails to appear, then a
conclusive presumption arises that the “manufacturer is not subject to the jurisdiction of the court.” Id. § 82.003(c).
A seller may avoid the conclusive presumption that the manufacturer is not subject to the jurisdiction of the court by
“secur[ing] personal jurisdiction over the manufacturer in the action.” Id.

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                SECTION 82.003, LIABILITY OF NONMANUFACTURING SELLERS

       Chapter 82 of the Civil Practice and Remedies Code addresses products liability. Section

82.003 addresses the liability of nonmanufacturing sellers; its pertinent parts follow.

       (a) A seller that did not manufacture a product is not liable for harm caused to the
       claimant by that product unless the claimant proves . . . (7) that the manufacturer
       of the product is: (A) insolvent; or (B) not subject to the jurisdiction of the court.
       ....
       (c) If after service on a nonresident manufacturer through the secretary of state in
       the manner prescribed by Subchapter C, Chapter 17, the manufacturer fails to
       answer or otherwise make an appearance in the time required by law, it is
       conclusively presumed for the purposes of Subsection (a)(7)(B) that the
       manufacturer is not subject to the jurisdiction of the court unless the seller is able
       to secure personal jurisdiction over the manufacturer in the action.

TEX. CIV. PRAC. & REM. CODE ANN. § 82.003 (emphasis added) (footnote omitted).

                                            ANALYSIS

       Fields and Klatt agree that this appeal turns on whether Klatt conclusively established

that he secured personal jurisdiction over Masterjack. See id.

A. Fields’s Argument

       Fields argues summary judgment was improper because she served Masterjack as

required in section 82.003(c), and therefore she is entitled to a conclusive and irrebuttable

presumption that Masterjack is not subject to the jurisdiction of the trial court. See id. She

asserts the statutory presumption satisfies subsection (a)(7)(B)’s provision which waives the

seller’s immunity from liability if the claimant proves the manufacturer is not subject to the

jurisdiction of the court. See id. § 82.003(a)(7)(B). She rejects Klatt’s assertion that it secured

personal jurisdiction over Masterjack because Klatt did not secure Masterjack’s answer or

appearance. In her view, securing personal jurisdiction means securing an appearance, not just

service. She insists Klatt did not secure personal jurisdiction over Masterjack in this case, and

thus the trial court erred by granting Klatt’s traditional motion for summary judgment.


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B. Klatt’s Argument

       Klatt argues that a seller may secure personal jurisdiction over a manufacturer by

properly serving the manufacturer under the long-arm statute—which includes pleading the

manufacturer’s minimum contacts with Texas sufficient to satisfy constitutional due process.

Klatt maintains that it secured personal jurisdiction over Masterjack because it served Masterjack

under the long-arm statute and the undisputed summary judgment evidence shows that

Masterjack established sufficient minimum contacts with Texas.

C. Section 82.003’s Plain Language

       We believe that under the statute’s plain language the nonmanufacturing seller may

qualify for the exception without obtaining the manufacturer’s general appearance in the lawsuit.

However, the seller must do more than prove service of process on the manufacturer to establish

the exception to the presumption that the manufacturer is not subject to the court’s jurisdiction.

       1. Operative Clauses

       Subsection (a)(7)(B) waives the nonmanufacturing seller’s immunity from liability if the

claimant proves the manufacturer is “not subject to the jurisdiction of the court.” Id. § 82.003(a).

Until subsection (c) was added in 2009, the claimant had to prove the negative: the manufacturer

did not establish minimum contacts with Texas. See Dennis v. Giles Grp., Inc., No. 04-07-

00280-CV, 2008 WL 183062, at *6–7 (Tex. App.—San Antonio 2008, no pet.) (mem. op.)

(reviewing a no-evidence motion with disputed facts on the manufacturer’s minimum contacts).

But now, subsection (c)’s plain language reduces the burden on the claimant. See TEX. CIV.

PRAC. & REM. CODE ANN. § 82.003(c). If the nonresident manufacturer is served as required by

section 82.003(c) and “the manufacturer fails to answer or otherwise make an appearance,” the

claimant receives a conclusive presumption that “the manufacturer is not subject to the



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jurisdiction of the court.” Id. § 82.003(c). However, if “the seller is able to secure personal

jurisdiction over the manufacturer in the action,” the presumption disappears. Id. (emphasis

added).

          2. Securing Jurisdiction

          To better understand what the legislature means by secure personal jurisdiction, we can

look to the section itself. See City of Rockwall, 246 S.W.3d at 625 (“In construing statutes, we

ascertain . . . the Legislature’s intent as expressed by the language of the statute.”). In subsection

(c), the legislature expressly addresses “service” on the manufacturer and what happens if “the

manufacturer fails to answer or otherwise make an appearance.” See TEX. CIV. PRAC. & REM.

CODE ANN. § 82.003(c).

          (c) If after service on a nonresident manufacturer through the secretary of state in
          the manner prescribed by Subchapter C, Chapter 17, the manufacturer fails to
          answer or otherwise make an appearance in the time required by law, it is
          conclusively presumed for the purposes of Subsection (a)(7)(B) that the
          manufacturer is not subject to the jurisdiction of the court unless the seller is able
          to secure personal jurisdiction over the manufacturer in the action.

Id. (emphasis added) (footnote omitted).

The legislature uses the phrase “service on” in the traditional sense when it describes service on

the manufacturer through the secretary of state.                Notably, the legislature does not use the

terminology “service on” to describe the seller’s duty to “secure personal jurisdiction 2 over” the

manufacturer. See id. Moreover, not only is the phrase “secure personal jurisdiction” used

rather than “service on,” but the section would make little sense if the seller need only duplicate

the plaintiff’s service on the manufacturer to avoid the conclusive presumption that the


2
  Neither Texas nor federal courts use the term “secure personal jurisdiction” with any regularity to suggest it is a
well-defined term of art. A federal practice guide seems to indicate that secure personal jurisdiction is synonymous
with service and minimum contacts. See generally 4A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 1069.7 (3d ed. 2002) (discussing how a court acquires personal jurisdiction over a person, including
service and minimum contacts, and noting “it is important to remember that a plaintiff also must secure personal
jurisdiction over a defendant with respect to each claim she asserts” (emphasis added)).

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manufacturer is not subject to the jurisdiction of the court. We conclude that the terms “service

on” and “secure personal jurisdiction” are not synonymous.

        A Texas court has personal jurisdiction over a nonresident defendant if the defendant has

been properly served and the nonresident defendant has established minimum contacts with

Texas such that the court’s “exercise of jurisdiction comports with traditional notions of fair play

and substantial justice.” See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795

(Tex. 2002) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)); see also Moki Mac

River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).

        We believe the statute’s plain language shows that the legislature intended that—after the

claimant serves the manufacturer as required—the burden shifts to the seller to prove the

elements necessary to demonstrate the court’s personal jurisdiction over the nonresident

manufacturer.      Those elements include proper service and evidence of minimum contacts

sufficient to subject the manufacturer to the jurisdiction of the court. 3 If the seller proves that the

court has personal jurisdiction over the nonresident manufacturer (i.e., proper service and

minimum contacts), the exception to the conclusive presumption applies, the statute immunizes

the seller, and the claimant must pursue the manufacturer.

        3. Basis for Summary Judgment

        Klatt’s sole ground for its traditional motion for summary judgment was that it had

secured personal jurisdiction over Masterjack, the statutory presumption against jurisdiction did




3
  In some instances proper service may not be obtained through the Texas long-arm statute and other treaties and
statutes must be utilized. Under subsection 82.003(c) the burden remains with the seller to (1) obtain and prove
proper service and (2) prove the manufacturer’s minimum contacts. See In re J.P.L., 359 S.W.3d 695, 704–06 (Tex.
App.—San Antonio 2011, pet. filed) (discussing service requirements under the Hague Service Convention for a
nonresident defendant). See generally Convention on the Service Abroad of Judicial and Extrajudicial Documents
in Civil or Commercial Matters, arts. 2–5, Nov. 15, 1965, 20 U.S.T. 361.

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not apply, Klatt was immune from liability under the statute, and it was entitled to judgment as a

matter of law.

           Fields and Klatt agree that Klatt served Masterjack, 4 and both parties’ summary judgment

motions included evidence of Masterjack’s minimum contacts with Klatt in Texas. Klatt’s

motion included Gordon Klatt’s affidavit that Masterjack’s sales representatives both telephoned

him and personally visited him in his store to solicit Klatt’s purchases of Masterjack’s products.

See TEX. R. CIV. P. 166a(c) (listing affidavits as competent summary judgment evidence); Trico

Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (per curiam) (same); see also Moki

Mac, 221 S.W.3d at 576 (citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,

784–85 (Tex. 2005)) (“A nonresident defendant that directs marketing efforts to Texas in the

hope of soliciting sales is subject to suit here for alleged liability arising from or relating to that

business.”); Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 838 (Tex. App.—Houston

[14th Dist.] 2008, pet. denied) (same). Fields’s exhibits in her response to Klatt’s summary

judgment motion included sales orders from Masterjack, with Masterjack’s president’s name and

signature, for products sales from Masterjack to Klatt, Masterjack’s invoices to Klatt for

Masterjack products, and Klatt’s cancelled checks that paid Masterjack’s invoices.

           4. Review of Summary Judgment

           To properly grant Klatt’s motion for summary judgment, the trial court had to conclude

that Klatt had secured personal jurisdiction over Masterjack in the suit. See TEX. CIV. PRAC. &

REM. CODE ANN. § 82.003(c). Specifically, the trial court had to decide that there were no

genuine issues of material fact, and that the summary judgment evidence conclusively proved

that (1) Klatt had properly served Masterjack and (2) Masterjack was amenable to the



4
    Fields also served Masterjack through the Texas Secretary of State.

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jurisdiction of the trial court in the suit. See BMC Software, 83 S.W.3d at 795 (personal

jurisdiction); Nixon, 690 S.W.2d at 548–49 (summary judgment).

       Fields and Klatt agree that Klatt properly served Masterjack under the Texas long-arm

statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 17.044. Klatt also had to prove as a matter of

law that Masterjack established minimum contacts with Texas. Although Gordon Klatt was an

interested witness, his affidavit regarding Masterjack’s contacts with Texas was clear, specific,

consistent, and uncontroverted. See TEX. R. CIV. P. 166a(c); Trico Techs., 949 S.W.2d at 310.

Fields had the opportunity to controvert Klatt’s testimony and evidence, but she did not. Cf.

Dennis v. Giles Grp., Inc., No. 04-07-00280-CV, 2008 WL 183062, at *6–7 (Tex. App.—San

Antonio 2008, no pet.) (mem. op.) (reversing a summary judgment because the claimant offered

evidence that created a genuine issue of material fact about whether the Texas court could

exercise personal jurisdiction over the Taiwanese manufacturer). In fact, Fields’s summary

judgment evidence included depositions, documents, and discovery responses that support

Klatt’s assertions that Masterjack had minimum contacts with Texas sufficient to satisfy

constitutional due process.       Fields’s own evidence substantiated Klatt’s assertions of

Masterjack’s minimum contacts with Texas, and she failed to raise any fact issues to defeat

personal jurisdiction over Masterjack. Cf. Withrow v. State Farm Lloyds, 990 S.W.2d 432, 436

(Tex. App.—Texarkana 1999, pet. denied). Having reviewed the summary judgment evidence

de novo, we hold that Klatt conclusively proved that Masterjack established minimum contacts

with Texas. See Moki Mac, 221 S.W.3d at 576 (“A nonresident defendant that directs marketing

efforts to Texas in the hope of soliciting sales is subject to suit here for alleged liability arising

from or relating to that business.”).




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                                           CONCLUSION

       We hold that, under section 82.003 of the Civil Practice and Remedies Code, a

nonmanufacturing seller can secure personal jurisdiction over a nonresident manufacturer where

the seller proves that (1) the manufacturer has been properly served according to the

requirements of the applicable laws, including treaty requirements, and (2) the manufacturer

established minimum contacts with Texas sufficient to satisfy federal and state constitutional due

process requirements.

       Here, there were no genuine issues of material fact pertaining to Klatt’s service on

Masterjack or Masterjack’s contacts with Texas. Further, Klatt’s summary judgment evidence

conclusively proves that Masterjack was served as required by subsection 82.003(c) and that

Masterjack established minimum contacts with Texas.              Therefore, the trial court properly

concluded that Klatt (1) had secured personal jurisdiction over Masterjack in the suit, (2) was

immunized by the statute, and (3) was entitled to have Fields’s claims against it dismissed. We

overrule Fields’s issue and affirm the trial court’s judgment.


                                                  Rebecca Simmons, Justice




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