                        In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                ___________________________
                     No. 02-18-00113-CV
                ___________________________

               MARJORIE ANDERSON, Appellant

                                 V.

SAFEWAY TOM THUMB, D/B/A TOM THUMB GROCERY, AND BARGREEN
                ELLINGSON, INC., Appellees



              On Appeal from the 96th District Court
                     Tarrant County, Texas
                 Trial Court No. 096-283926-16


                Before Bassel, Gabriel, and Kerr, JJ.
                Per Curiam Memorandum Opinion
                           MEMORANDUM OPINION

                                   I. Introduction

       Appellant Marjorie Anderson, appearing pro se, appeals the trial court’s order

granting summary judgment for Appellee Safeway Tom Thumb d/b/a Tom Thumb

Grocery and the trial court’s order granting the special appearance of Appellee

Bargreen Ellingson, Inc. In six issues, Anderson challenges the factual sufficiency of

the evidence and the trial court’s swearing her in to give testimony at the special-

appearance hearing, allegedly disregarding her evidence, placing what she believed to

be unfair restrictions on her ability to present testimony and evidence, and accepting

testimony from Safeway’s attorney that was allegedly not supported by any evidence.

Because we rule against Anderson on each of her six issues, we affirm.

                               II. Factual Background

       The facts of the event at the heart of the underlying litigation are not disputed.

On February 19, 2014, Anderson went to the Tom Thumb Grocery in Mansfield,

Texas, and purchased a salad from the delicatessen. Anderson sat down in a chair in

the dining area at the store. While Anderson was eating her salad, she noticed a piece

of cucumber on the floor near where she was sitting and believed that it was possibly

from her salad. When Anderson reached down to pick up the cucumber, the chair in

which she had been sitting “flipped out behind her, propelling and thrusting her onto

the . . . floor.” Anderson landed on her bottom with her legs extended in front of

her.

                                           2
                             III. Procedural Background

       Anderson filed suit against Safeway Tom Thumb, Bargreen Ellingson, and J.H.

Carr and Sons Manufacturing.1 Anderson alleged that all three defendants were liable

for gross negligence and that Safeway was also liable, under the theory of premises

liability, for the personal injuries that she had sustained in falling from the chair.

       Bargreen Ellingson filed an amended special appearance, arguing that it is a

Washington resident; that it is incorporated in Washington and has its principal place

of business in Tacoma, Washington; that it does not have a registered agent for

service of process in Texas; and that it has not purposefully availed itself of the

privilege of doing business in Texas. Bargreen Ellingson explained that Safeway had

purchased the subject chair through a purchase contract formed with Bargreen

Ellingson in California and that J.H. Carr and Sons Manufacturing (also a Washington

resident) had manufactured the chair and had shipped it to the address provided by

Safeway. Anderson filed a response asserting that she would establish that Bargreen

Ellingson has a business location in Fort Worth.

       Safeway filed an amended answer that included a general denial and asserted

the    affirmative    defenses     of    “paid     v.   incurred”     and     “contributory

negligence/comparative fault.” Safeway later filed a traditional motion for summary

judgment. In its motion, Safeway stated that the evidence attached to its motion—


       Anderson ultimately nonsuited defendant J.H. Carr and Sons Manufacturing,
       1

and that defendant is not a party to this appeal.

                                             3
which included deemed admissions and the store’s video of Anderson’s chair

incident—“conclusively negates the following elements of [Anderson’s] cause of

action:     (1) there was [an] unreasonably dangerous condition on the premises;

(2) [Safeway] knew or reasonably should have known of the danger posed by said

condition; and [(3) Safeway] breached its duty of ordinary care.” Safeway further

stated that Anderson had failed to provide any answers, objections, or assertions of

privilege to Safeway’s request for admissions even though Safeway had implicitly

extended the deadline to respond to the admissions as Anderson had informally

requested. Safeway contended that because there was no evidence of negligence, as

shown by the store’s video, there could be no recovery for gross negligence.

      Anderson filed a response to Safeway’s summary-judgment motion admitting

that she did not respond to the request for admissions by the June 13 date that she

had requested but claimed that she had emailed Safeway’s counsel requesting a five-

day extension. Anderson did not attach any evidence to her summary-judgment

response.

      The trial court held a hearing on Bargreen Ellingson’s amended special

appearance on August 17, 2016, and granted the special appearance in a signed order

dated August 23, 2016, thus dismissing Anderson’s claims against Bargreen Ellingson

for lack of personal jurisdiction. The trial court held a separate hearing on Safeway’s

motion for traditional summary judgment on August 25, 2016, and granted the

motion in a signed order dated August 26, 2016.

                                          4
      On September 8, 2016, Anderson filed a “Motion for Rehearing and New

Trial” pertaining to each of the trial court’s orders.2 Because Anderson did not

request a hearing on her post-judgment motion or take any other action, the trial

court sent a letter ten months later stating that the case would be set for dismissal for

want of prosecution unless the trial court received a motion to retain the case on the

docket. 3 Anderson timely field a motion to retain the case on the docket, which the

trial court granted. A hearing on Anderson’s “Motion for Rehearing and New Trial”

was set for January 5, 2018, but Anderson did not appear. The trial court signed an

order denying Anderson’s motion as to Safeway.          Anderson then perfected this

appeal.

                         IV. Anderson’s Issues on Appeal

      Anderson sets forth the following six issues under the “Issues Presented”

heading in her brief:

             1. Did the district court err in placing Plaintiff/Appellant Pro Se
      in the witness stand and having her sworn in (Party to case, Defendant
      Bargreen Ellingson’s Special Appearance on or about August 17, 2016)?

      2
       The record does not show that Anderson sought a hearing on her motion for
new trial pertaining to the order granting Bargreen Ellingson’s special appearance, and
no order appears in the record. See generally Tex. R. Civ. P. 329b(c) (providing that a
motion for new trial that is not determined by written order signed within seventy-five
days after the judgment was signed shall be considered overruled by operation of law
on expiration of that period).
      3
         Anderson did not nonsuit her claims against J.H. Carr and Sons Manufacturing
until after she filed her notice of appeal, so those claims remained pending at the time
the trial court sent the letter warning of dismissal.


                                           5
      Was Appellant Pro Se denied due process per the 5th and 14th
      Amendment[s] of the U. S. Constitution?

            2. Did the district court err in disregarding critical evidence
      presented during the hearings?

            3. Did the district court err in not allowing Plaintiff/Appellant
      Pro Se to present documents after the court asked plaintiff if she had
      them in the courtroom?

             4. Did the district court err in not allowing Plaintiff/Pro Se
      sufficient time to complete her oral statements?

             5. Is there factually sufficient evidence to support the judgments
      of the district Court?

             6. Did the district court err in accepting Appellee/Defendant’s,
      Safeway Tom Thumb, allegations and testimony, and vague language and
      descriptions that were not supported by evidence?

      Anderson’s “Summary Of Argument” section makes multiple arguments, only

one of which is analyzed in the “Argument” section of her brief. Her “Argument”

section consists of approximately one and a half pages and appears to address only

her sixth issue. Anderson’s brief contains citations to two cases and to one rule of

civil procedure.

                         A. Standard for Pro Se Litigants

      Although we liberally construe pro se briefs, litigants who represent themselves

are held to the same standards as litigants represented by counsel. See Mansfield State

Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To hold otherwise would give

pro se litigants an unfair advantage over litigants with an attorney. Id. at 185. The

Texas Rules of Appellate Procedure require that a brief “contain a clear and concise

                                          6
argument for the contentions made, with appropriate citations to authorities and to

the record.” Tex. R. App. P. 38.1(i); ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d

867, 880 (Tex. 2010) (recognizing that “[t]he Texas Rules of Appellate Procedure

require adequate briefing”). The appellate court has no duty to brief issues for an

appellant. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). In

the absence of appropriate record citations or a substantive analysis, a brief does not

present an adequate appellate issue. See generally Fredonia State Bank v. Gen. Am. Life Ins.

Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (recognizing long-standing rule that error

may be waived due to inadequate briefing). An appellant must discuss the facts and

the authorities relied upon as may be requisite to maintain the point at issue. Tesoro

Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston

[1st Dist.] 2002, pet. denied). “This is not done by merely uttering brief conclusory

statements, unsupported by legal citations.” Id.

            B. Construing Anderson’s First, Third, and Fourth Issues

       Because Anderson does not identify any of her arguments in her “Summary Of

Argument” section to reflect what issue or issues they correspond to, we reference the

paragraph order and attempt to identify the corresponding issue.

     The First Paragraph Appears to Correspond to Anderson’s First Issue

       In the first paragraph of the “Summary Of Argument” section of Anderson’s

first amended brief, she argues that the trial court erred by placing her on the witness

stand and by having her sworn in during the hearing on Bargreen Ellingson’s special

                                             7
appearance.4 Anderson further argues that Bargreen Ellingson’s counsel was not

called to the witness stand and was allowed to cross-examine her.5          Anderson

contends that she “was prejudiced by the court’s decision” and that she “was

confused and misled as to what courtroom procedure(s) she might encounter in

future hearings, which caused her to place less focus and emphasis on important

specific issues that she needed to confront in this case and to attempt to be prepared

to address/defend all.”

      Anderson cites no law to support her four-sentence argument, which appears

to correspond to her first issue. Based on Anderson’s limited, unsupported argument,

we cannot see how the trial court’s actions ran afoul of Texas Rule of Civil Procedure

120a(3), which governs special-appearance hearings and allows the trial court to hear

testimony.   See Tex. R. Civ. P. 120a(3); see also Cohn, 573 S.W.2d at 184–85.

Accordingly, we overrule Anderson’s first issue.

   The Second Paragraph Appears to Correspond to Anderson’s Third Issue

      In the second paragraph of the “Summary Of Argument” section of

Anderson’s first amended brief, she argues that the trial court erred by excluding and

      4
        Anderson did not object to being sworn in or raise any objection on this basis
in the trial court. Anderson therefore did not preserve this complaint. See Tex. R.
App. P. 33.1(a)(1)(A).
      5
        Although not clear from Anderson’s amended brief, her reply brief makes
clear that she is complaining that she was not allowed to cross-examine Bargreen
Ellingson’s counsel. Anderson did not preserve this complaint because she did not
make a request in the trial court seeking permission to cross-examine Bargreen
Ellingson’s counsel. See Tex. R. App. P. 33.1(a)(1)(A).

                                          8
failing to consider critical evidence that she had brought with her to the hearing and

by not allowing her sufficient time to respond. Anderson further argues that the

exclusion of her evidence is so contradictory to the rulings established by the Texas

Supreme Court in Miller v. Wilson and Brown v. Davis as to be clearly wrong and unjust.6

Anderson’s two-sentence argument7 complaining of unidentified excluded evidence at

an unidentified hearing appears to correspond to her third issue.

      Anderson does not identify the hearing—either the hearing on Bargreen

Ellingson’s special appearance that took place on August 17, 2016, or the hearing on

Safeway’s summary-judgment motion that took place on August 25, 2016—at which

her evidence was excluded, nor does she identify what “critical evidence” was

excluded. Our review of the records from the two hearings reveals that Anderson

was allowed to present evidence during the hearing on Bargreen Ellingson’s special

appearance8 but not during the summary-judgment hearing.            To the extent that



      6
        We were not able to locate the two cases on Westlaw other than references to
them in briefs filed by pro se appellants in other cases. See In re Sims, No. 05-16-
00984-CV, 2016 WL 7339213, at *4, *11 (Tex. App.—Dallas Oct. 12, 2016)
(appellant’s pro se brief); Ulloa v. Rodriguez, No. 04-15-00160-CV, 2015 WL 5471668,
at *4, *9 (Tex. App.—San Antonio Sept. 9, 2015) (appellant’s pro se brief).

     The final sentence of the second paragraph under Anderson’s “Summary Of
      7

Argument” heading appears to address her sixth issue, which is discussed below.
      8
        The record demonstrates that the trial court admitted each of Anderson’s
exhibits over Bargreen Ellingson’s hearsay objections and that it allowed her to make
a record of what she had been told by various people but stated that it would not
consider that testimony as evidence. Because Anderson’s testimony about what other

                                           9
Anderson’s third issue complains that she was not allowed sufficient time to testify at

the special-appearance hearing, the record demonstrates that after she presented her

exhibits and made an offer of proof as to what various people had told her, the trial

court asked her if she had anything else that she wanted to say, and she responded,

“That is all I have right now.” To the extent that Anderson’s third issue complains

that she was not allowed to put on testimony or introduce evidence at the summary-

judgment hearing, she was prohibited from doing so because testimony at a summary-

judgment hearing is not evidence, she did not attach any evidence to her summary-

judgment response, and she did not filed any evidence seven days prior to the hearing.

See Tex. R. Civ. P. 166a(c), (d). We therefore overrule Anderson’s third issue.

   The Third Paragraph Appears to Correspond to Anderson’s Fourth Issue

      In the third paragraph of the “Summary Of Argument” section of Anderson’s

first amended brief, she argues that “[t]he court erred by instructing Mr. Dunne,

Defendant Bargreen Ellingson, Inc.[’s counsel] to ‘go ahead and proceed however you

wish.’ Appellee/Plaintiff believes the court erred by telling her ‘you can proceed, just

in a narrative form to tell me–give me your testimony and offer your exhibits.’”

[Record references omitted.]       Anderson’s two-sentence argument appears to

correspond to her fourth issue, arguing that the trial court did not allow her sufficient

time to complete her oral statements. Because Anderson did not explain how these


people had told her regarding Bargreen Ellingson’s corporate structure constituted
hearsay, the trial court properly did not consider it. See Tex. R. Evid. 802.

                                           10
two statements constitute error, did not cite any law to support her argument, and did

not provide any analysis showing how she was harmed, we conclude that she has

waived her fourth issue due to inadequate briefing, 9 and we overrule it. See Fredonia

State Bank, 881 S.W.2d at 284–85; see also Tex. R. Evid. 611 (providing that trial court

may exercise reasonable control over the interrogation of a witness and the

presentment of evidence); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)

(stating that trial court has broad discretion to maintain control in the courtroom and

to prevent what it considers to be a waste of time).

                                C. Remaining Issues

      Anderson’s remaining issues, which challenge specific evidence presented at the

special-appearance hearing and at the summary-judgment hearing and the factual

sufficiency of the evidence, are analyzed below in section V.

                                D. Unbriefed Issues

      In the final paragraph of her “Argument” section in her first amended brief,

Anderson argues in a single sentence that the trial court could have ordered an

extension of time for her to conduct discovery, take depositions and affidavits, and

identify more experts in this case and requests in her “Conclusion” section that we

overturn the trial court’s denial of her motion for rehearing and new trial. Because

Anderson did not raise or brief any issue on appeal specifically challenging the denial


      9
        Anderson failed to adequately brief this issue, even after being notified of the
deficiencies in her initial appellate brief.

                                           11
of any motion for continuance or the denial of her motion for rehearing and new trial

and because she did not cite any law or provide any analysis for these arguments, we

conclude that these arguments are inadequately briefed and are therefore waived. See

Fredonia State Bank, 881 S.W.2d at 284–85.

                   V. The Special-Appearance Hearing and Order

          In the fourth paragraph of the “Summary Of Argument” section of Anderson’s

first amended brief, she argues that the trial court erred by disregarding her evidence

that included Bargreen Ellingson’s catalog, “which describes Bargreen Ellingson of

Texas as a branch location[,] and Appellee’s world-wide access website[,] which

identifies Dallas/Ft. Worth TX as a location for Bargreen Ellingson, Inc.”

Anderson’s one-sentence argument appears to correspond to her second issue, which

argues that the trial court erred by disregarding critical evidence presented during the

hearing. The record demonstrates that, over Bargreen Ellingson’s hearsay objections,

Anderson admitted into evidence the cover page of a Bargreen Ellingson catalog and

a page from that catalog listing its branch locations, which include Fort Worth, and a

printout from Bargreen Ellingson’s website showing that it has a Dallas/Fort Worth

office.

          In the fifth paragraph of the “Summary Of Argument” section of Anderson’s

first amended brief, she argues, “Thus the District Court’s judgment is not supported

by factually sufficient evidence.” This argument appears to correspond to Anderson’s

fifth issue, and because it immediately follows her argument about evidence related to

                                          12
Bargreen Ellingson, we presume that she is challenging the factual sufficiency of the

trial court’s order granting Bargreen Ellingson’s special appearance.             We discuss

Anderson’s second and fifth issues together.

                                 A. Standard of Review

       We review de novo a trial court’s decision to grant or deny a special

appearance. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).

A plaintiff must plead allegations that bring a nonresident defendant within the

provisions of the Texas long-arm statute. BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 793 (Tex. 2002). “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.” Kelly v. Gen. Interior Constr., Inc.,

301 S.W.3d 653, 658 (Tex. 2010). “The defendant can negate jurisdiction on either a

factual or legal basis.” Id. at 659. “Factually, the defendant can present evidence that

it has no contacts with Texas, effectively disproving the plaintiff’s allegations.” Id.

“Legally, the defendant can show that even if the plaintiff’s alleged facts are true, the

evidence is legally insufficient to establish jurisdiction.” Id.

       When, as here, a trial court does not issue findings of fact and conclusions of

law in support of a special-appearance ruling, then “all facts necessary to support the

judgment and supported by the evidence are implied.” BMC Software, 83 S.W.3d at

795. However, these findings are not conclusive when the appellate record includes

both the clerk’s and reporter’s records, as it does here, and a party may challenge these

                                              13
findings for legal and factual sufficiency on appeal. See Waterman S.S. Corp. v. Ruiz,

355 S.W.3d 387, 402 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (op. on

reh’g). But when jurisdictional facts are undisputed, it is a question of law as to

whether those facts establish jurisdiction; the reviewing court “need not consider any

implied findings of fact” and will consider only the legal question of whether the

undisputed facts establish Texas jurisdiction. Old Republic Nat’l Title Ins. Co. v. Bell, 549

S.W.3d 550, 558 (Tex. 2018).

                             B. Personal Jurisdiction Law

       Texas courts may exercise personal jurisdiction over a nonresident if “(1) the

Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of

jurisdiction is consistent with federal and state constitutional due-process guarantees.”

Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013) (quoting Moki

Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007)). The Texas long-arm

statute provides that a nonresident who “does business” in the state is subject to

personal jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. § 17.042. The Texas long-

arm statute allows Texas courts to exercise personal jurisdiction “as far as the federal

constitutional requirements of due process will permit.” BMC Software, 83 S.W.3d at

795 (citing U–Anchor Advert., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)). Federal

due process requires that the nonresident defendant have purposefully established

minimum contacts with the forum state, such that the defendant reasonably could

anticipate being sued there. Curocom Energy LLC v. Shim, 416 S.W.3d 893, 896 (Tex.

                                             14
App.—Houston [1st Dist.] 2013, no pet.). The exercise of personal jurisdiction must

also comport with traditional notions of fair play and substantial justice. Id.

      Specific jurisdiction arises when the defendant purposefully avails itself of

conducting activities in the forum state, and the cause of action arises from or is

related to those contacts or activities.     Kelly, 301 S.W.3d at 658 (citing Retamco

Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009)). In a specific

jurisdiction analysis, “we focus . . . on the ‘relationship among the defendant, the

forum[,] and the litigation.’” Moki Mac, 221 S.W.3d at 575–76 (quoting Guardian Royal

Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991)).

The plaintiff must show a substantial connection between the defendant’s contacts

with the forum state and the operative facts of the litigation. Id. at 585. The

“purposeful availment” inquiry has three parts. See Michiana Easy Livin’ Country, Inc. v.

Holten, 168 S.W.3d 777, 784 (Tex. 2005). First, only the defendant’s contacts with the

forum are relevant, not the unilateral activity of another party or a third person. Id. at

785. Second, the contacts relied upon must be purposeful rather than random,

fortuitous, or attenuated. Id.; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475

n.18, 105 S. Ct. 2174, 2184 n.18 (1985). Third, the “defendant must seek some

benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.” Michiana Easy

Livin’ Country, 168 S.W.3d at 785.




                                           15
                         C. “Stream of Commerce” Theory

       Under the stream-of-commerce theory of personal jurisdiction, “a nonresident

who places products into the ‘stream of commerce’ with the expectation that they will

be sold in the forum state” may be subject to personal jurisdiction in the forum. TV

Azteca v. Ruiz, 490 S.W.3d 29, 46 (Tex. 2016) (quoting Moki Mac, 221 S.W.3d at 576–

77). But even under that theory, mere knowledge that the product will be sold in the

forum state is not enough. Id. A product seller’s “awareness that the stream of

commerce may or will sweep the 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 [s]tate.” CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996) (orig.

proceeding) (quoting Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 112, 107

S. Ct. 1026, 1032 (1987)). Instead, “additional conduct” must demonstrate “an intent

or purpose to serve the market in the forum [s]tate.” Moki Mac, 221 S.W.3d at 577

(quoting Asahi Metal, 480 U.S. at 112, 107 S. Ct. at 1032); see also J. McIntyre Mach., Ltd.

v. Nicastro, 564 U.S. 873, 882, 131 S. Ct. 2780, 2788 (2011) (“The defendant’s

transmission of goods permits the exercise of jurisdiction only where the defendant

can be said to have targeted the forum; as a general rule, it is not enough that the

defendant might have predicted that its goods will reach the forum [s]tate.”); Moki

Mac, 221 S.W.3d at 577 (“[T]he facts alleged must indicate that the seller intended to

serve the Texas market.”). Additional conduct of the defendant that may indicate an

intent or purpose to serve the market in the forum state includes designing the

                                            16
product for the market in the forum state, advertising in the forum state, establishing

channels for providing regular advice to customers in the forum state, or marketing

the product through a distributor who has agreed to serve as the sales agent in the

forum state. Asahi Metals, 480 U.S. at 112, 107 S. Ct. at 1032.

                                 D. Jurisdictional Facts

      Anderson pleaded in her petition that the trial court had personal and subject-

matter jurisdiction over Bargreen Ellingson because it had subjected itself to the laws

of Texas “by selling products/doing business with businesses located in Texas.” In

her response to Bargreen Ellingson’s amended special appearance, Anderson stated

that Bargreen Ellingson did more than place its products in the stream of commerce

and that it had advertised in Texas via its interactive website, its products catalog, and

its listing in the Greater Fort Worth phone book. Anderson stated that she intended

to establish that Bargreen Ellingson has a business location in Fort Worth. Anderson

did not attach an affidavit to her response.

      Bargreen Ellingson’s amended special appearance sets forth the following:

          • Bargreen Ellingson is, and was at the time Anderson filed her original

             petition, a resident of the State of Washington. Bargreen Ellingson is

             not a resident of Texas.

          • Bargreen Ellingson does not have a registered agent for service of

             process in Texas.



                                           17
         • Bargreen Ellingson is incorporated in the State of Washington and has

             its principal place of business in Tacoma, Washington.

         • Bargreen Ellingson has not purposefully availed itself of the privilege of

             doing business in Texas.

         • This case does not arise out of or relate to Bargreen Ellingson’s contacts,

             if any, with Texas such as to allow the courts of Texas to exercise

             specific jurisdiction over Bargreen Ellingson. Safeway purchased the

             subject chair through a purchase contract formed with Bargreen

             Ellingson in California.    J.H. Carr and Sons Manufacturing, also a

             Washington resident, then manufactured the chair and shipped it to the

             address provided by Safeway. Bargreen Ellingson did not send the chair

             to Texas.

         • Bargreen Ellingson does not have continuous or systematic contacts

             with Texas that would make it amenable to the general jurisdiction of the

             courts of Texas.

         • Bargreen Ellingson is not “at home” in Texas, is not incorporated in

             Texas, and does not have its principal place of business in Texas.

In support of the preceding statements, Bargreen Ellingson attached to its special

appearance the affidavit of its owner and president. The affidavit further states that

Bargreen Ellingson did not intend to serve the Texas market by selling the chair at



                                          18
issue to Safeway and that it did not design the chair at issue for the Texas market,

advertise the chair at issue in Texas, or establish channels of regular communication

with Texas customers.

      During the special-appearance hearing,10 Bargreen Ellingson’s counsel argued

that the trial court did not have specific or general jurisdiction over Bargreen

Ellingson.   Bargreen Ellingson’s counsel explained that Bargreen Ellingson is a

foreign corporation that is not at home in Texas and does not have continuous and

systematic contacts with Texas and that the contacts, if any, that it had with Texas did

not give rise to the facts of “this litigation.” Bargreen Ellingson’s counsel also stated

that Bargreen Ellingson does not meet the “stream of commerce” test because it did

not conduct additional activities directed towards the Texas market.

      Bargreen Ellingson’s counsel stated that Bargreen Ellingson does not have an

office in Fort Worth and that the Fort Worth office Anderson referenced in her

response to the amended special appearance belongs to Bargreen Ellingson of Texas,

LP—not Bargreen Ellingson, Inc. To support his argument, Bargreen Ellingson’s

counsel asked the trial court to take judicial notice of a printout from the Tarrant

Appraisal District showing that the business located at 2450 Handley Ederville Road

in Fort Worth is listed under the business name of Bargreen Ellingson of Texas and


      10
        We set forth a summary of what transpired during the special-appearance
hearing. However, we rely on the evidence, not the arguments and explanations that
the parties gave during the hearing, in concluding that the record supports the trial
court’s order granting Bargreen Ellingson’s special appearance.

                                           19
shows the owner as Bargreen Ellingson of Texas, LP. Bargreen Ellingson’s counsel

also argued that Bargreen Ellingson of Texas, LP’s contacts cannot be attributed to

Bargreen Ellingson, Inc. because Anderson did not plead jurisdictional piercing of the

veil or alter ego.

       Anderson responded by admitting into evidence printouts from Bargreen

Ellingson’s website, copies of printed pages from the Greater Fort Worth Yellow

Pages, copies of Bargreen Ellingson’s catalog, and photos of the Fort Worth location.

The trial court allowed Anderson to testify, for purposes of the record, as to what she

had been told by the employees at the Fort Worth location. On cross-examination,

Anderson testified that she had no knowledge of anyone who had purchased the chair

in question from Bargreen Ellingson’s interactive website.

                                    E. Analysis

       At the outset of our analysis, we address Anderson’s second issue complaining

that the trial court erred by disregarding the evidence she admitted at the special-

appearance hearing, specifically Bargreen Ellingson’s catalog and website. The trial

court stated in its order granting Bargreen Ellingson’s special appearance that it had

“considered the submissions, as well as the evidence, and arguments and authorities of

counsel.” [Emphasis added.] Moreover, the undisputed evidence reflected that the

Fort Worth location referenced in Bargreen Ellingson’s catalog and on its website was

Bargreen Ellingson of Texas, LP, which is a separate legal entity from Bargreen



                                          20
Ellingson, Inc.11     Anderson never sued Bargreen Ellingson of Texas, LP.

Accordingly, we overrule Anderson’s second issue.

      With regard to Anderson’s fifth issue challenging the factual sufficiency of the

evidence to support the trial court’s order granting Bargreen Ellingson’s special

appearance, the undisputed evidence shows that the chair at issue was contracted for

in California and was shipped directly to the Safeway in Mansfield by J.H. Carr and

Sons Manufacturing, which is located in Washington. Bargreen Ellingson thus did

not contract for the chair at issue in Texas, nor did it deliver the chair to Texas. And

as stated above, “awareness that the stream of commerce may or will sweep the

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 [s]tate.” CSR Ltd.,

925 S.W.2d at 595 (quoting Asahi Metal, 480 U.S. at 112, 107 S. Ct. at 1032).

      In Anderson’s attempt to establish additional facts that Bargreen Ellingson did

more to purposefully avail itself of the privilege of conducting activities within Texas

than just have its chair swept up into the stream of commerce, she pointed to



      11
         Additionally, Anderson did not plead a veil-piercing or alter-ego theory as a
basis to impute Bargreen Ellingson of Texas, LP’s contacts with Texas to Bargreen
Ellingson, Inc., nor did she offer any evidence that Bargreen Ellingson, Inc. exerted
sufficient dominion or control over Bargreen Ellingson of Texas, LP to support an
alter-ego theory of general jurisdiction. See Olympia Capital Assocs., L.P. v. Jackson, 247
S.W.3d 399, 415 (Tex. App.—Dallas 2008, no pet.) (holding that any issue on appeal
as to an alter-ego theory for jurisdictional veil-piercing was not preserved because the
receiver did not plead alter ego and did not offer any evidence in support of alter-ego
theory).

                                            21
evidence that Bargreen Ellingson had a website,12 as well as a catalog that could be

sent to Texas. But Anderson had no evidence that the chair at issue was purchased

using Bargreen Ellingson’s website. Moreover,

      [e]vidence of a website (irrespective of whether it is interactive) simply
      illustrates the potential for activity from the forum in question and the
      website owner’s knowledge of that potentiality. It does not illustrate
      actual use or its extent. In short, there needs to be more than the
      existence of a website (whether interactive or not) to support an
      inference that the forum was targeted by the website owner or that the
      latter directed its marketing efforts at the forum. See Moki Mac River
      Expeditions v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007) (stating that a
      nonresident defendant that directs marketing efforts to Texas in the hope
      of soliciting sales may be subject to suit in Texas for alleged liability
      arising from or relating to that business). And, the additional evidence
      or conduct is missing here.

             ....

             Nor do we have any idea of how many people access its website
      on any given day, how many are from Texas, or whether they utilize it
      for anything other than informational purposes. Nor do we know if [the
      defendant] structured its website or any other marketing effort in some
      way to target people in Texas, as opposed to residents of this nation’s
      other forty-nine states and the other innumerable nations and countries
      on this earth wherein people have internet access. It is conceivable to
      suggest that the company should have reasonably known that someone
      in Texas could access its site, but more is needed than that if the lessons
      of TV Azteca are to be heeded.



      12
         In her reply brief, Anderson points to the affidavits that she attached to her
combined motion for rehearing and new trial, which included the affidavit of a person
who repairs computers and runs an internet gift business and an affidavit from a
research librarian affiliated with UT Southwestern Medical Center. Although the
affidavits set forth opinions regarding the user-friendliness of Bargreen Ellingson’s
website and state that a Fort Worth location is listed on the website, the affidavits do
not contain evidence relevant to the jurisdictional analysis.

                                          22
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.). Bargreen Ellingson’s website had

no connection to and thus was not substantially related to the operative facts of this

case. And though Anderson established that Bargreen Ellingson’s website and catalog

both list a Fort Worth location (Bargreen Ellingson of Texas, LP), she never made

Bargreen Ellingson of Texas, LP a party to this suit. We therefore cannot conclude

that Bargreen Ellingson purposefully availed itself of the privilege of conducting

activities in Texas. And without proof of purposeful availment—the first prong

needed to prove specific jurisdiction—that avenue of gaining personal jurisdiction

over Bargreen Ellingson is closed to Anderson. See id.; see also C.W. Brown Mach. Shop,

Inc. v. Stanley Mach. Corp., 670 S.W.2d 791, 792–94 (Tex. App.—Fort Worth 1984, no

writ) (holding that trial court lacked jurisdiction over Massachusetts company that

advertised in a national publication but had no other contacts with Texas).

      We therefore hold that the uncontroverted evidence presented by Bargreen

Ellingson in support of its special appearance is factually sufficient to demonstrate

that the trial court lacks jurisdiction over Bargreen Ellingson. Because the evidence is

factually sufficient to support the trial court’s order granting Bargreen Ellingson’s

special appearance, we overrule Anderson’s fifth issue.13


      13
        In her “Conclusion” section, Anderson references “Daimler.” See Daimler AG
v. Bauman, 571 U.S. 117, 134 S. Ct. 746 (2014). Anderson’s brief, however, does not
advance a general jurisdiction theory, and she only briefly mentions in her letter brief
to the trial court following the special-appearance hearing that Bargreen Ellingson is

                                          23
    VI. Anderson’s Challenge to Safeway’s Evidence of Nonreceipt of Her
                   Responses to Request for Admissions

      In the “Argument” section of her first amended brief, which appears to

correspond to Anderson’s sixth issue, she argues that the trial court erred by accepting

Safeway’s “allegation, unsupported by evidence, that Appellant Pro Se did not send

the answers to Admissions, Defendant’s First Set of Interrogatories, in a timely

manner.”14   In the last sentence of the second paragraph of her “Summary Of

Argument” section, Anderson further argues,

      Because the District Court should have excluded Defendant’s testimony
      and allegations that were not supported by evidence, the court’s ruling in
      favor of the Defendant is so contrary to the weight of Defendant’s lack
      of evidence as to be clearly wrong and unjust and would deny Appellant
      due process as guaranteed by the 5th and 14th Amendments of the U.S.
      Constitution.

                                 A. Applicable Law

      Under the Texas Rules of Civil Procedure, “[s]ervice by mail . . . shall be

complete upon deposit of the document, postpaid and properly addressed, in the

mail.” See Tex. R. Civ. P. 21a(b)(1). Furthermore, rule 21a sets up a presumption that


“at home” in Texas because of its “interactive and globally accessible website.”
Moreover, just as the Court held in Daimler—that Daimler was not at home in
California—Bargreen Ellingson, a Washington corporation with its principal place of
business in Washington, is not at home in Texas. See id. at 139, 134 S. Ct. at 761–62.
      14
        Although Anderson couches her issue in terms of whether Safeway’s counsel
provided testimony about whether she sent her responses, the testimony she
challenges dealt with whether Safeway received her responses—a fact that was within
the personal knowledge of Safeway’s counsel.


                                          24
notice properly mailed was duly received. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.

1987). “In the absence of evidence to the contrary, the presumption has the force of

a rule of law.” Id. However, the presumption is not “evidence” and vanishes when

opposing evidence is introduced that the notice is not received. Id. The general rule

is that an attorney’s statements on the record, as an officer of the court, are

considered evidence unless an objection is made. See Holloway v. Arkansas, 435 U.S.

475, 486, 98 S. Ct. 1173, 1179 (1978); In re M.N., 262 S.W.3d 799, 804 (Tex. 2008).

 B. Evidence of Nonreceipt of Anderson’s Responses at the Time the Motion
                    for Summary Judgment Was Filed

      At the outset of the hearing on Safeway’s traditional motion for summary

judgment, the trial court allowed both Safeway’s counsel and Anderson to testify

freely regarding whether Anderson was served with the request for admissions and

whether Anderson’s responses, if any, were received by Safeway.         Neither party

objected to such testimony on the ground that neither Safeway’s counsel nor

Anderson were under oath.

      Safeway’s counsel informed the trial court that she had sent Safeway’s first

request for admissions to Anderson15 and that Anderson had signed for the

documents on or about April 18, 2016. Safeway’s counsel explained that the request

for admissions sought to determine whether Anderson had any evidence that Safeway



      15
        The certificate of service on the document reflects that it was sent by regular
and certified mail, return receipt requested on April 13, 2016.

                                          25
knew or should have known that there was an unsafe, unreasonably dangerous, or

defective condition on the premises. The request for admissions specifically stated,

      Pursuant to Rule 198 of the Texas Rules of Civil Procedure, you are
      hereby requested to serve the undersigned with a written answer, either
      denying specifically the matters hereinafter listed or setting forth in detail
      the reasons why you cannot truthfully either admit or deny the matters.
      Please note that each of the matters hereinafter listed shall be deemed
      admitted unless, within thirty (30) days after service of the request, or
      within a time designated by the Court, you make and serve or cause to
      be served a written answer or objection addressed to the matter, as
      provided in Rule 198.

      On or about May 13, 2016, Safeway’s counsel received a document from

Anderson entitled “Plaintiff’s Second Amended Response To Defendant’s, Safeway

Tom Thumb d/b/a Tom Thumb Grocery[’s], First Set Of Interrogatories/Requests

For Production, Admissions[,] And Disclosure[s],” which did not include responses

but instead requested a thirty-day extension to respond to Safeway’s first set of

interrogatories and specifically requested a response due date of June 13, 2016.

Safeway’s counsel informed the trial court that the parties never entered into a rule 11

agreement to extend the deadline for Anderson to respond to the request for

admissions.

      As of June 14, Safeway did not receive any responses from Anderson to the

request for admissions.     Due to the lack of response from Anderson, Safeway

concluded that Anderson was deemed to have admitted that she had no evidence to

proceed forward with a cause of action against Safeway for premises liability. Safeway

thus filed a traditional motion for summary judgment on July 21, 2016.

                                           26
      Anderson told the trial court that she had received Safeway’s request for

admissions and that she had asked Safeway for a thirty-day extension on May 13.

Anderson claimed that she had also emailed the response to the request for

admissions on May 13. When the trial court asked Anderson if she had copies of her

responses to the request for admissions that she had allegedly emailed to Safeway on

May 13, Anderson said that she only had “print screens,” showing the date that she

had sent them and the person to whom she had sent them. Anderson agreed that

Safeway’s counsel did not agree to an extension.        Anderson said that she had

attempted to mail her responses on June 13 but discovered that the post office was

closed, so she requested an extension until June 17. Anderson told the trial court that

she discussed the extension over the phone with Safeway’s counsel, who did not say

“yes” or “no” to the extension.16 Anderson said that she mailed all of her responses

on June 17.

      The trial court inquired whether Safeway’s counsel had ever been served with

Anderson’s responses to the request for admissions, and Safeway’s counsel

responded, “Not until after I filed this summary judgment,” which would have been

after July 21. Safeway’s counsel further explained that Anderson’s responses do not

specifically deny anything:


      16
        Safeway’s counsel said that she did have a phone conversation with Anderson
on or about June 13 in which Anderson asked if she had received the medical records
that Anderson had emailed to her; Safeway’s counsel acknowledged receipt of the
medical records.

                                          27
      So, you know, I asked: “Do you have any knowledge prior to this
      incident that the chair was dangerous?”

             And there’s no denial[;] there’s no objection.

             She just basically says: “The chair in which plaintiff was sitting
      flipped out, thrusting her forward and propelling her onto the floor.
      Said action and movement of the chair was unsafe.”

      Anderson responded that her evidence that the chair was unsafe was based on

her personal experience—that “[t]he chair flipped out behind [her] and thrust [her]

onto the floor”—and the video of the incident, as well as the incident report.

      The trial court viewed the video of Anderson’s chair incident and then granted

Safeway’s motion for summary judgment.

           C. Anderson Did Not Preserve Her Complaint Regarding
                      Safeway’s Counsel’s Testimony

      The situation presented here is similar to that described in Mathis v. Lockwood:

      At the post-judgment hearing, Lockwood’s counsel testified that notice
      was sent to Mathis, and Mathis denied receiving it. While statements by
      neither were under oath, the oath requirement was waived when neither
      raised any objection in circumstances that clearly indicated each was
      tendering evidence on the record based on personal knowledge on the
      sole contested issue. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997)
      (holding attorney’s unsworn statements tendered as evidence were
      sufficient absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444
      (Tex. 2005) (holding pro se litigants are governed by the same rules as
      attorneys).

166 S.W.3d 743, 744–45 (Tex. 2005).

      As in Mathis, Anderson did not object to Safeway’s counsel’s testifying about

facts within her personal knowledge concerning the lack of receipt of Anderson’s


                                          28
responses to the request for admissions. The trial court was therefore free to depend

on Safeway’s counsel’s statements as evidence in this case. See Holloway, 435 U.S. at

486, 98 S. Ct. at 1179; M.N., 262 S.W.3d at 804; Mathis, 166 S.W.3d at 745. To the

extent that Anderson now complains on appeal that the trial court could not rely on

Safeway’s counsel’s statements as evidence, we conclude that Anderson has not

preserved that issue for review. See Tex. R. App. P. 33.1(a).

  D. Safeway Rebutted the Presumption of Receipt of Anderson’s Responses

      To the extent that Anderson attempts to raise a fact issue regarding her claim

that she timely served responses to the request for admission, she has failed. She

attached no evidence to her summary-judgment response. She did, however, attach

evidence to her combined motion for rehearing and new trial, which included print

screens of her “sent mail” folder and “green card” information that Anderson printed

from the United States Postal Service’s website. The print screens of Anderson’s

“sent mail” folder shows only that she emailed Safeway’s counsel a request for an

extension of time on June 13, 2016; it does not demonstrate when her responses to

the request for admissions were sent. Moreover, the “green card” information that

Anderson printed from the United States Postal Service’s website shows that

something was delivered to Dallas on June 17, but the record does not show what

document that “green card” information corresponds to. Even presuming that the

“green card” information sheet pertains to Anderson’s responses to the request for

admissions and that it raised a presumption of service under Texas Rule of Civil

                                           29
Procedure 21a, Safeway rebutted that presumption with unobjected-to testimony that

it did not receive Anderson’s responses to the request for admissions until after

Safeway filed its motion for summary judgment on July 21, which was more than two

months after the deadline mandated by rule 198.2 and more than one month after the

implicitly extended deadline. See Cliff, 724 S.W.2d at 780 (stating that presumption of

receipt under rule 21a “vanishes when opposing evidence is introduced that the letter

was not received”).

      Having determined that Anderson did not preserve her complaint regarding

Safeway’s counsel’s testimony and because that testimony rebutted the presumption

of receipt, we overrule Anderson’s sixth issue.17


      17
         As a result, the request for admissions were deemed admitted without the
necessity of a court order on June 14 because Safeway had not received responses
from Anderson by the implicitly extended deadline. See Tex. R. Civ. P. 198.2. We are,
however, mindful of the supreme court’s stance on using deemed issues to support
summary judgment. See generally Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011)
(“Good cause for the withdrawal of the deemed admissions exists in this case because
there is no evidence of flagrant bad faith or callous disregard for the rules and nothing
to justify a presumption that Marino’s defense lacks merit.”); Wheeler, 157 S.W.3d at
444 (holding that trial court should have granted a new trial and allowed the deemed
admissions to be withdrawn upon learning that the summary judgment was solely
because the responses were two days late). To the extent that Anderson’s fifth issue
can be construed as challenging the factual sufficiency of the trial court’s summary-
judgment order, the deemed admissions are sufficient to support the trial court’s
judgment because the timing of the responses makes the situation here different from
what the courts dealt with in Marino and in Wheeler.

       Anderson admits that Safeway did not agree to either of the extensions that she
requested regarding the deadlines for her responses to the request for admissions, and
the record does not contain any rule 11 agreements extending the response deadline.
Safeway implicitly extended the deadline to the date that Anderson requested and then

                                           30
                                  VII. Conclusion

      Having overruled Anderson’s six issues, we affirm the trial court’s order

granting Safeway’s motion for summary judgment and the trial court’s order granting

Bargreen Ellingson’s special appearance.


                                                      Per Curiam

Delivered: May 23, 2019




waited another five weeks before filing its summary-judgment motion. At that point,
Anderson’s responses were more than two months past the original deadline. Even
after Safeway filed its motion for summary judgment, alerting Anderson of the
deemed admissions, she did not request to withdraw the deemed admissions. Under
the unique facts here, we conclude that Anderson’s actions demonstrate callous
disregard for the rules. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex.
2008) (approving a summary judgment based on deemed admissions after the decision
in Wheeler even though the nonmovant’s responses to the movant’s requests for
admissions were on file at the time of the trial court’s judgment); In re Seizure of
Gambling Proceeds, 388 S.W.3d 874, 878 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (affirming summary judgment based on deemed admissions after concluding that
responses to admissions that were sent eight days late—because appellant had
calculated the response due date based on the date it received the request for
admissions—were untimely). Moreover, even if Anderson’s responses to the request
for admissions could be considered, they were not proper objections to the requests.
See Unifund CCR Partners, 262 S.W.3d at 797 (holding that Weaver’s responses to
requests for admission, even if they could be considered, were not proper objections
to the requests). Accordingly, we overrule Anderson’s fifth issue to the extent it can
be construed as challenging the factual sufficiency of the evidence to support the trial
court’s summary-judgment order.

                                           31
