                             In The
                       Court of Appeals
         Sixth Appellate District of Texas at Texarkana


                           No. 06-18-00018-CV



         WILCO FARMERS D/B/A WILCO FARM STORES, Appellant

                                    V.

   EDNA CARTER, INDIVIDUALLY AND ON BEHALF OF MICHAEL CARTER,
DECEASED; CHRISTOPHER CARTER; TAMMY TURNBOW; AND TERESA MILLER,
                             Appellees



                  On Appeal from the 62nd District Court
                        Hopkins County, Texas
                       Trial Court No. CV43343




               Before Morriss, C.J., Moseley and Burgess, JJ.
                       Opinion by Justice Moseley
                                                   OPINION
            In February 2017, Wilco Farmers d/b/a Wilco Farm Stores (Wilco), an Oregon

corporation,1 placed an order for cattle gates and other goods from Priefert Mfg. Co., Inc. (Priefert),

a Texas-based manufacturer. Priefert Logistics, LP (Priefert),2 leased a truck from Aulsbrook &

Son Truck Lines LLC (Aulsbrook), a Texas company, to take the fulfilled order from Priefert’s

facilities in Texas to Wilco’s facility in Mount Angel, Oregon. Michael Carter, an employee of

Aulsbrook, drove the truck to Oregon. While the cargo was being unloaded in Mount Angel,

Carter sustained fatal injuries when some of the cargo fell on him. Consequently, Carter’s widow

and children filed this lawsuit in Hopkins County, Texas, against Wilco, Priefert, and Aulsbrook,

alleging that their negligence caused Carter’s injuries and death. In response, Wilco filed a special

appearance and asserted that it was not subject to personal jurisdiction in Texas. The trial court

denied the special appearance.

            In this interlocutory appeal, Wilco contends that the trial court erred in denying its special

appearance because its contacts with Texas are not sufficient to confer either general or specific

personal jurisdiction over Wilco in Texas.

I.          Background

            Wilco is an Oregon corporation with its principal place of business in Mount Angel,

Oregon. It has eighteen farm supply retail stores in Oregon and Washington. Wilco has had a



1
 For reasons not mentioned, none of the pleadings in the case of either the plaintiff or the defendants seem to indicate
the structure of this entity (i.e., whether it is a partnership, a limited liability company, a sole proprietorship, or a
corporation). The nature of the structure does not impact the decision in this case.
2
    The parties refer to both Priefert and Priefert Logistics as Priefert. We will do the same.

                                                              2
business relationship with Priefert for approximately twenty years, in which Wilco sells cattle

squeeze chutes and corral panels supplied by Priefert. The relationship began when a sales

representative of Priefert contacted Wilco by telephone and convinced Wilco to stock Priefert’s

products. Since that time, a Priefert salesperson came to Wilco stores in Oregon and Washington

quarterly to make sales calls, to train Wilco’s salespeople on the use of Priefert’s products, and to

instruct how to properly unload its merchandise upon delivery. In addition, almost every year

Wilco sends certain of its employees to Priefert’s facilities in Texas for additional training in the

manufacture and use of Priefert’s products. During these trips, no purchases are made by Wilco,

and Priefert does not train Wilco employees on unloading its merchandise. Upon selling enough

of Priefert’s products, Wilco places an order by notification to Priefert, whereupon Priefert delivers

the products from Texas to Oregon. Priefert determines the time and mode of delivery of the

products. Priefert includes a brochure on how to unload its merchandise with the packing slip

accompanying the delivered merchandise.

       Wilco only advertises in Oregon and Washington. Although it advertises its merchandise

(including some of the merchandise supplied by Priefert) on its website, its merchandise may only

be purchased through one of its retail outlets. Wilco does not have any place of business in Texas,

is not registered to do business in Texas, and does not have a bank account in Texas. None of its

employees, officers, or directors reside in Texas. It does not own property or pay taxes in Texas.

Priefert is Wilco’s only Texas supplier.

       In February 2017, Wilco sent a purchase order to Priefert for gates and other items.

Pursuant to a contractor lease agreement with Priefert, Aulsbrook supplied the truck and driver,

                                                  3
Carter, used to deliver the shipment to Wilco in Oregon. While the cargo was being unloaded in

Mount Angel, Carter sustained fatal injuries when some of the cargo fell on him.

       Appellees filed this suit in Texas against Priefert, Aulsbrook, and Wilco, alleging that the

defendant’s negligence caused Carter’s death. Its claim against Wilco includes allegations that

Wilco was negligent in failing to unload the truck in a safe and secure manner, in failing to train

its employees on how to safely unload cargo, and in failing to supervise its employees.

II.    Standard of Review and In Personam Jurisdiction

       “Whether a trial court has personal jurisdiction over a nonresident defendant is a question

of law that we review de novo.” Old Republic Nat’l Title Ins. Co. v. Bell, No. 17-0245, 2018 WL

2449360, at *3 (Tex. June 1, 2018) (citing Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d

142, 150 (Tex. 2013)). When no findings of fact and conclusions of law are made by the trial

court, “we infer ‘all facts necessary to support the judgment and supported by the evidence.’”

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007) (quoting BMC Software

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)).

       When there is a challenge to the trial court’s in personam, or personal, jurisdiction, the

plaintiff and the defendant have shifting burdens of proof. Kelly v. Gen. Interior Const., Inc., 301

S.W.3d 653, 658 (Tex. 2010). It is the plaintiff’s initial burden to plead sufficient allegations to

invoke jurisdiction under the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574. The non-

resident defendant must then negate all bases of jurisdiction in the plaintiff’s allegations. Id.

Jurisdiction can be negated on either a factual or legal basis. Kelly, 301 S.W.3d at 659. The

defendant can factually negate the plaintiff’s allegations by presenting evidence that it has no

                                                 4
contacts with Texas. Id. The plaintiff must then respond with evidence affirming its jurisdictional

allegations, or risk dismissal of its lawsuit by failing to do so. Id. The defendant can legally negate

the plaintiff’s allegation by showing that even if the allegations are true, either (1) the evidence is

legally insufficient to establish jurisdiction; (2) the defendant’s contacts with Texas do not amount

to purposeful availment; (3) for specific jurisdiction, that the plaintiff’s claims do not arise from

the defendant’s contacts; or (4) that the exercise of jurisdiction would offend the traditional notions

of fair play and substantial justice. Id.

         “Texas courts may assert in personam 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.” Moki Mac, 221 S.W.3d at 574

(citing Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990)). The Texas long-arm statute

describes what constitutes doing business in the state, “[i]n addition to other acts.” Id. (quoting

TEX. CIV. PRAC. & REM. CODE ANN. § 17.042). The only subsection pertinent to this appeal

provides that a non-resident does business in Texas if it “(1) contracts by mail or otherwise with a

Texas resident and either party is to perform the contract in whole or in part in this state.” 3 TEX.



3
 This is the only subsection of the long-arm statute that Appellees assert on appeal in support of the trial court’s denial
of the special appearance. Although Appellees alleged in their amended petition that Wilco committed certain acts of
negligence, none of these acts are alleged to have occurred, in whole or in part, in Texas. Therefore, Appellees’
allegations do not allege jurisdictional facts that would invoke subsection (2) of the long-arm statute, which requires
that a non-resident “commits a tort in whole or in part in this state.” TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(2)
(West 2015). Consequently, to defeat this basis of personal jurisdiction, Wilco only had to submit evidence that it
was not a Texas resident, which it did. See Kelly, 301 S.W.3d at 658–59. Appellees also alleged that Wilco “recruited
. . . Carter, a Texas resident, through . . . Priefert, for employment outside the state.” See TEX. CIV. PRAC. & REM.
CODE ANN. § 17.042(3) (West 2015) (providing that a non-resident does business in Texas if it “recruits Texas
residents, directly or through an intermediary located in this state, for employment inside or outside this state”).
However, Wilco negated this allegation, and no evidence was presented to support the allegation. Appellees do not
assert subsections (2) or (3) as bases for jurisdiction on appeal.
                                                            5
CIV. PRAC. & REM. CODE ANN. § 17.042(1) (West 2015). Because of the long-arm statute’s broad

language, it “reach[es] as far as the federal constitutional requirements of due process will allow.”

Moki Mac, 221 S.W.3d at 575 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China

Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)).

       The exercise of personal jurisdiction over a non-resident defendant is proper when it “has

established minimum contacts with the forum state, and the exercise of jurisdiction comports with

‘traditional notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe Co. v. Washington,

Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945) (quoting Milliken v.

Meyer, 311 U.S. 457, 463 (1940))). The non-resident defendant establishes minimum contacts

when it “purposefully avails itself of the privilege of conducting activities within the forum State,

thus invoking the benefits and protections of its laws.” Id. (quoting Hanson v. Denckla, 357 U.S.

235, 253 (1958) (quoting Int’l Shoe Co., 326 U.S. at 319)). These contacts “must justify a

conclusion that the defendant could reasonably anticipate being called into a Texas court.” Old

Republic, 2018 WL 2449360, at *3 (quoting Retamco Operating, Inc. v. Republic Drilling Co.,

278 S.W.3d 333, 338 (Tex. 2009) (citations omitted)). In determining purposeful availment, we

consider three factors:

       First, only the defendant’s contacts with the forum are relevant, not the unilateral
       activity of another party or a third person. Second, the contacts relied upon must
       be purposeful rather than random, fortuitous, or attenuated . . . . Finally, the
       defendant must seek some benefit, advantage or profit by availing itself of the
       jurisdiction.

Id. (quoting Moncrief Oil Int’l Inc., 414 S.W.3d at 151 (quoting Retamco Operating, Inc., 278

S.W.3d at 338–39).

                                                  6
       These contacts may result in two types of personal jurisdiction over the non-resident

defendant. Moki Mac, 221 S.W.3d at 575 (citing BMC Software, 83 S.W.3d at 795–96). General

jurisdiction arises when the defendant’s contacts with the state are continuous and systematic,

whether or not the cause of action arises from those contacts. Id. (citing BMC Software, 83 S.W.3d

at 796). “Specific jurisdiction is established if the defendant’s alleged liability ‘aris[es] out of or

[is] related to’ an activity conducted within the forum.”         Id. at 576 (quoting Helicopteros

Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.8 (1984)). Consequently, when considering

specific jurisdiction, our minimum contacts analysis is focused “on the ‘relationship among the

defendant, the forum[,] and the litigation.’” Id. at 575–76 (quoting Guardian Royal, 815 S.W.2d

at 228 (citations omitted)).

       The Texas Supreme Court has explained, “The ‘arise from or relate to’ requirement lies at

the heart of specific jurisdiction by defining the required nexus between the nonresident defendant,

the litigation, and the forum.” Id. at 579. In Texas, the “arise from or related to” requirement is

satisfied only when there is a substantial connection between the non-resident defendant’s forum

contacts and the operative facts of the litigation. Old Republic, 2018 WL 2449360, at *4; Moki

Mac, 221 S.W.3d at 585.




                                                  7
III.     Analysis

         A.        Specific Jurisdiction

         In support of general and specific jurisdiction over Wilco, Appellees alleged the following

relevant facts for which there is some evidence in the record:4

         a)        Defendants Wilco and Priefert have a mutually-beneficial 20-year business
                   relationship wherein Defendant Priefert is a dealer of farm equipment for
                   Defendant Wilco, which sells Priefert’s goods in Oregon and Washington;

         b)        Defendants Wilco and Priefert exchange hundreds of e-mails and phone
                   calls each year;

         c)        Defendant Wilco makes hundreds of purchases (and these purchases
                   involve the forming of hundreds of contracts) from Defendant Priefert each
                   year;

                   ....

         e)        On this specific occasion, Defendants Wilco and Priefert entered into a
                   contract for the purchase of farm equipment that required . . . transport of
                   goods from Texas to Oregon;

         f)        On this specific occasion, Defendant Wilco initiated contact with Defendant
                   Priefert by submitting a purchase order;

         g)        Defendant Wilco sends its key personnel to Texas nearly every year for
                   “Priefertization” training;


In their brief, Appellees flesh out the evidence supporting these allegations and argue that Wilco’s

contacts with Texas were purposeful and that it sought to profit and benefit by availing itself of


4
 We have omitted those allegations for which there is no evidentiary support. In addition, we have omitted those
allegations which assert either the unilateral actions of Priefert, or actions that took place solely in Oregon and
Washington, which are irrelevant to our inquiry. See Old Republic, 2018 WL 2449360, at *3 (for purposes of
purposeful availment, it is the contacts of the defendant with the forum state that are relevant, not the unilateral actions
of another party or third person); Moki Mac, 221 S.W.3d at 575–76 (when considering specific jurisdiction, the
minimum contacts analysis focuses on the defendant, the forum, and the litigation).
                                                             8
this jurisdiction. However, “purposeful availment alone will not support an exercise of specific

jurisdiction.” Moki Mac, 221 S.W.3d at 579. In addition to purposeful availment, “[f]or a Texas

court to exercise specific jurisdiction over a defendant, the defendant’s purposeful contacts must

be substantially connected to the operative facts of the litigation or form the basis of the cause of

action.” Old Republic, 2018 WL 2449360, at *4 (citing Moki Mac, 221 S.W.3d at 585; Michiana

Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 795 (Tex. 2005)). Even assuming, but not

deciding, that Wilco’s contacts with Texas support a finding of purposeful availment, these

contacts are not substantially connected to the operative facts of the Appellees’ claims against

Wilco.

         In Moki Mac, thirteen-year-old Andy Druggs died on a river rafting trip in Arizona with

Moki Mac River Expeditions, a Utah-based river rafting outfitter. Andy’s parents (the Druggs)

learned about Moki Mac’s excursions from a fellow Texas resident to whom Moki Mac had sent

its brochures.    The Druggs reviewed the brochures and Moki Mac’s website, and after

corresponding with Moki Mac’s representatives from their home in Texas, decided to send Andy

on the rafting trip. After an application and payment were submitted, Moki Mac sent the Druggs

an acknowledgment-of-risk and release form, which both Andy and his mother signed and

returned. On the second day of the rafting trip, Andy sustained fatal injuries when he fell

backwards fifty-five feet while attempting to traverse a very narrow, boulder-blocked ledge. Moki

Mac, 221 S.W.3d at 573.

         The Druggs filed suit in Texas alleging that Moki Mac’s negligence caused Andy’s death

and alleging intentional and negligent misrepresentation. After the trial court denied Moki Mac’s

                                                 9
special appearance, the court of appeals affirmed the trial court based on specific jurisdiction and

held that the misrepresentation claims arose from and related to Moki Mac’s purposeful contacts

with Texas. Id.

        The Texas Supreme Court agreed with the court of appeals that Moki Mac’s numerous

contacts5 with Texas satisfied that purposeful availment requirement of specific jurisdiction. Id.

at 579. However, the court held that to satisfy the requirement that the claim “arise from or related

to” the defendant’s purposeful contacts, “there must be a substantial connection between those

contacts and the operative facts of the litigation.” Id. at 585 (citing Guardian Royal, 815 S.W.2d

at 229–33).

        The Druggs alleged that Moki Mac had made direct solicitation to them and that they

depended on Moki Mac’s assurances of the safety of the trip made in its brochures, including that

it would provide appropriate equipment and skilled guides. The court accepted as true that the

Druggs would not have sent Andy on the trip were it not for Moki Mac’s representations about

safety. However, the court noted that “the operative facts of the Druggs’ suit concern[ed]

principally the guides’ conduct of the hiking expedition and whether they exercised reasonable

care in supervising Andy” and that the focus of the trial and most of the evidence would be “[t]he

events on the trail and the guides’ supervision.” Id. Consequently, the court held, “[T]he injuries

for which the Druggs seek recovery are based on Andy’s death on the hiking trail in Arizona, and


5
 The evidence showed that in addition to the direct contacts with the Druggs, Moki Mac regularly advertised in Texas,
targeted media groups and tour operators located in Texas, solicited Texas residents through mass and targeted email
campaigns, regularly and repeatedly sent brochures and trip information to Texas residents who had expressed an
interest in a trip, and established channels of regular communications with its Texas customers. Moki Mac, 221
S.W.3d at 577–78. Through these contacts, the court found that Moki Mac sought and obtained profit from Texas
residents. Id. at 578.
                                                        10
the relationship between the operative facts of the litigation and Moki Mac’s promotional activities

in Texas are simply too attenuated to satisfy specific jurisdiction’s due-process concerns.” Id. at

588.

         Appellees argue that because of Wilco’s longstanding relationship with Priefert, the

allegations of unsafe loading/unloading, the allegations of inadequate safety training lodged

against both Wilco and Priefert, and because Carter allegedly died “performing” a Texas contract,

there is a substantial connection to its claim’s operative facts. 6 First, in considering specific

jurisdiction, we are only concerned with the non-resident’s contacts with the forum and the

relationship between those contacts and the litigation. See id. at 575–76. Therefore, Appellees’

allegations of unsafe loading and inadequate safety training lodged against Priefert are not relevant

considerations. In addition, even assuming the contract between Wilco and Priefert required

Priefert to deliver the goods to Oregon, the undisputed testimony was that the manner and means

of delivering the goods was solely in the control of Priefert. Further, the evidence showed that

Priefert chose to deliver the goods by entering into a contract with Aulsbrook to perform the task


6
 Appellees also argue that “when a truck driver is hurt or dies attempting to deliver contract goods under a longstanding
relationship, the injury is substantially related to the contract, the larger relationship and the defendant’s forum-
directed activity—even when the injury happens to occur out of state,” citing Hewitt v. Arrow Farms, Inc., 528 A.2d
446, 448 (Me. 1987), and Spir Star AG v. Kimich, 310 S.W.3d 868, 874 (Tex. 2010). Neither of these cases stand for
this proposition. Although the facts in Hewitt are somewhat similar to the facts in this case, there is little analysis
performed by the Maine Supreme Court, and it is unclear whether the Maine court found jurisdiction based on general
or specific jurisdiction. It is clear, however, that the Maine court did not use the substantial connection standard
adopted by the Texas Supreme Court in specific jurisdiction cases. Hewitt, 528 A.2d at 447–48. Spir Star AG is also
inapposite. In Spir Star AG, a Texas resident was injured in Texas when a high-pressure hose manufactured by Spir
Star, a German company, ruptured. Spir Star AG, 310 S.W.3d at 871. Spir Star marketed its products through a Texas
distributor. The Supreme Court held that since Spir Star specifically targeted Texas as a market for its products, it
was subject to a products liability suit in Texas based on a product sold in Texas, even if the sale was through a
distributor. Id. at 874. However, because the sales were through a distributor, specific jurisdiction was limited to
claims arising from those sales under the substantial connection test. Id. In this case, Wilco has never targeted Texas
as a market, and the claim does not arise out of a sale of its products in Texas.
                                                          11
and that Aulsbrook supplied Carter to drive the truck. Thus, it appears that the contract that Carter

was performing at the time of the incident was between Priefert and Aulsbrook. The unilateral

actions of another party, or of a third person, are not relevant considerations when analyzing

specific jurisdiction. See Old Republic, 2018 WL 2449360, at *3.

        As in Moki Mac, the operative facts of the Appellees’ claims against Wilco in this case

concern principally whether Wilco’s employees exercised reasonable care in unloading the truck

and whether Wilco exercised reasonable care in training and supervising its employees, all of

which took place in Oregon. Likewise, the focus of the trial and evidence concerning Appellees’

claims against Wilco will be the events surrounding the unloading of the truck and Wilco’s

supervision of its employees. Wilco’s contacts with Texas, consisting of its longstanding buyer-

supplier relationship with Priefert and the mutual efforts of these parties to maintain and improve

their relationship, cannot be said to be substantially connected to the operative facts of Appellees’

claims against Wilco. Even though Wilco had ordered the goods involved in Carter’s injuries from

Priefert, this is not the subject matter of the suit and is unrelated to the operative facts of Appellees’

negligence claim against Wilco.7 See Moki Mac, 221 S.W.3d at 585.

        Since there is not a substantial connection between Wilco’s purposeful contacts with Texas

and the operative facts of Appellees’ claim, we find that the trial court erred in denying Wilco’s

special appearance, insofar as the trial court’s order is based on specific jurisdiction.




7
 Although ultimately Carter would not have been injured had not Wilco been in a relationship with Priefert and had it
not ordered the goods, this kind of “but for” standard has been rejected by the Texas Supreme Court. See Moki Mac,
221 S.W.3d at 580–81.
                                                        12
       B.      General Jurisdiction

       A non-resident defendant is subject to a court’s general jurisdiction when its “affiliations

with the state are so continuous and systematic as to render [it] essentially at home in the forum

state.” Old Republic, 2018 WL 2449360, at *8 (quoting TV Azteca v. Ruiz, 490 S.W.3d 29, 37

(Tex. 2016) (quoting Daimler v. Bauman, 571 U.S. 117, 127 (2014))). General jurisdiction

“requires ‘substantial activities within the forum’ and presents ‘a more demanding minimum

contacts analysis than for specific jurisdiction.’” TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016)

(quoting BMC Software, 83 S.W.3d at 797).            Although a non-resident’s contacts may be

continuous and systematic, they will not confer general jurisdiction unless they “rise to the level

of rendering a defendant ‘essentially at home in the forum [s]tate.’” Old Republic, 2018 WL

2449360, at *8 (quoting Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016) (quoting

Daimler, 571 U.S. at 134)).

       Wilco does not have a place of business in Texas, is not registered to do business in Texas,

and does not have a bank account in Texas. None of its employees, officers, or directors reside in

Texas. It does not own property or pay taxes in Texas. Its only contacts with Texas appears to be

limited to those contacts resulting from its buyer/supplier relationship with Priefert. These

contacts are insufficient to confer a Texas court general jurisdiction over Wilco. See id. at *8–9.

Consequently, we find that the trial court erred in denying Wilco’s special appearance. We sustain

Wilco’s issue on appeal.




                                                13
       For the reasons stated, we reverse the trial court’s order denying Wilco’s special

appearance and dismiss Appellees’ cause of action against Wilco.




                                           Bailey C. Moseley
                                           Justice

Date Submitted:      July 6, 2018
Date Decided:        July 31, 2018




                                              14
