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

• Court: Court of Appeals of Texas
• Decided: December 17, 2020
• Docket: 01-20-00044-CV
• Status: Published

Opinion

Opinion issued December 17, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00044-CV ——————————— BRIGADE ELECTRONICS (UK) LTD. AND BRIGADE ELECTRONICS INC., Appellants V. ANITA DEHANEY, INDIVIDUALLY AND AS THE EXECUTRIX OF ESTATE OF ALTON FORD, SR., DECEASED, WILLIE JEFFERSON, AND FALON IRBY, Appellees

On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2017-80632

MEMORANDUM OPINION

Appellees, Anita Dehaney, individually and as the Executrix of the Estate of

Alton Ford, Sr., deceased, Willie Jefferson, and Falon Irby, brought claims against appellants, Brigade Electronics (UK) Ltd. (“Brigade (UK)”) and Brigade

Electronics, Inc. (“Brigade (US)”), for products liability and negligence, after their

father was killed by a crane at a shipping port. In this interlocutory appeal,1

appellants challenge the trial court’s order denying their special appearances. In

their sole issue, appellants contend that the trial court erred in denying their special

appearances because appellees’ jurisdictional allegations are insufficient to invoke

personal jurisdiction and the jurisdictional evidence negates appellees’ allegations.

We affirm.

Background

Appellants are in the business of selling “back-up” alarms, i.e.,

reverse-motion alarms, including those used to warn workers of moving vehicles

and heavy equipment in industrial settings. Appellants sell their patented broadband

sound alarm (“BBS alarm” or “alarm(s)”) worldwide. They assert that their BBS

alarm, which emits a “shh-shh” or “burst of air” sound, is more audible and locatable

than a traditional tonal alarm. Thus, a person in the proximity of moving equipment

is more apt to decipher the source of the alarm and to avoid the danger. The sound

is also more localized, which reduces ambient noise on a jobsite.

Brigade (UK) is a United Kingdom private limited company, with its principal

place of business in the United Kingdom. It began selling BBS alarms in 2000.

1 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7).

2 Brigade (US) is a New York corporation, with its principal place of business in

Indiana (previously, Pennsylvania). Its formation was complete in late 2005, and it

began selling BBS alarms thereafter.

During 2005, as discussed further below, the Port of Houston Authority (the

“Port”)2 sought to replace the traditional tonal alarms on its equipment and vehicles

to increase safety and to mitigate noise. The Port retained HFP Acoustical

Consultants, Inc. (“HFP”) to provide a technical evaluation of potential measures,

and HFP identified the BBS alarm as one of the viable options. In May 2005, at the

behest of the Port or HFP, a representative of Brigade (UK), Henry Morgan, visited

the Port and demonstrated the BBS alarm on a rubber-tyred (or rubber-tired) gantry

crane (“RTG crane”).3 The Port then obtained four BBS alarms from Brigade (UK)

for testing and evaluation at the Port. The Port expressed concern about the

availability of parts and inventory in the United States. In November 2005, Morgan

traveled to Texas and attended a meeting at the Port. Subsequently, the Port elected

to purchase BBS alarms for its facility.

2 The Port is a defendant in the trial court but not a party to this appeal. 3 A “gantry crane” is a crane built on a bridge-like structure, from which a load, such as a shipping container, is suspended from a traveling trolley. See Ass’n of Marine Underwriters of S.F., Glossary of Marine Ins. and Shipping Terms, 14 U.S.F. MAR. L.J. 305, 356 (2002).

3 Once Brigade (US) was formed in 2005, Morgan became its chief executive

officer and general manager. In February 2006, Morgan sent an email to the Port,

directing it to the Brigade (US) “regional distributor,” “Medsafe/Gosafe”

(“Medsafe”) in Deer Park, Texas.4 Medsafe sent a Price Quote to the Port for

approximately 260 BBS alarms. Morgan again traveled to Texas to “reinforce the

relationship” with the Port. In April 2006, the Port placed an order with Medsafe

for $75,000.00 in alarms, and Brigade (US) shipped the alarms to the Port through

Medsafe. The Port installed BBS alarms on its cranes operating at its Barbours Cut

Terminal.

Eleven years later, on April 20, 2017, appellees’ father, Alton Ford, Sr., while

working as a truckdriver for Santana Trucking,5 went to the Port, Barbours Cut

Terminal, where a shipping container was to be loaded onto his truck for transport.

Appellees alleged in their petition that, when Ford arrived, a Port employee directed

him to alight from the truck and to locate the assigned container on foot. Appellees

alleged that the instruction was in violation of the Port’s policies and that Port

employees did not warn crane operators in the vicinity to halt work while Ford

searched for his container. As Ford walked among the container stacks, he did not

4 Medsafe is a defendant in the trial court but not a party to this appeal. 5 Santana Trucking is a defendant in the trial court but not a party to this appeal.

4 realize that one such operator, Terence Walker,6 was operating an RTG crane in his

path. When Ford emerged from between two stacks, the crane operated by Walker

struck and pinned Ford and dragged him to his death.

It is undisputed that the RTG crane that struck the decedent was equipped with

four BBS alarms. Appellees brought products liability and negligence claims against

Brigade (UK) and Brigade (US),7 collectively as “Brigade Electronics,” alleging that

the alarms failed to adequately warn the decedent, which caused or contributed to

his death. They alleged that the alarms were not fit for the purpose of adequately

warning those in proximity of the danger of a moving RTG crane, the alarms were

defectively designed because they did not operate at a sufficient frequency and

decibel level, and there was a foreseeable risk that the alarms would fail to warn the

decedent of the danger of the oncoming crane. They asserted that the risk could have

been reduced or avoided with a safer alternative design, which Brigade Electronics

failed to adopt. Further, Brigade Electronics was negligent in marketing their BBS

alarms for use at a marine port—a use for which the alarms are unsuitable because

their sound is diminished or blocked by shipping containers.

6 Walker is a defendant in the trial court but not a party to this appeal. 7 Although appellees also named Brigade Electronics Group, PLC (“Brigade Group”) as a defendant, the trial court granted its special appearance and dismissed the claims against it. Brigade Group, formed in 2009, did not exist at the time of the operative events. Appellees also brought claims against the Port; Medsafe; Santana Trucking; the crane manufacturer, Konecranes Finland Oy; and the crane inspector, Kempco. Again, these defendants are not parties to this appeal.

5 Appellees alleged that “specific jurisdiction is proper over Brigade

Electronics because there are more than sufficient minimum contacts to support

jurisdiction,” and Brigade Electronics “purposefully availed themselves” of the

privileges and protections of conducting business in Texas. They alleged that

appellants “voluntarily and purposefully directed their actions toward the State of

Texas” by delivering the alarms into the stream of commerce with the expectation

that they would be purchased by Texas consumers. Further, the alarms were in fact

purchased by the Port, in Texas, “where they caused injury.”

Appellees further alleged that “Brigade Electronics” marketed the BBS alarms

“for the particular purpose of use at marine ports such as the Port of Houston, when

in fact the alarms are not suited for such purpose”; it “conducted extensive product

testing” of the alarms at the Port in Texas; it manufactured and sold the alarms with

knowledge that they would be used in Texas; and it delivered the alarms to the Port

in Texas. In addition, Brigade Electronics “maintained a contract with Medsafe

sufficient to establish a substantial connection to and minimum contacts” with

Texas. Appellees noted that the Brigade Electronics website directly solicited

contact information from Texas consumers in order to send information regarding

products and services. And, Brigade Electronics maintained a “Case Studies > Port

of Houston” page regarding its sale of BBS alarms to the Port for the purpose of

advertising the alarms to Texas markets. Appellees asserted that the interests in

6 trying the case in Texas were substantial and that the burden on Brigade Electronics

was not undue. Accordingly, the Texas trial court’s exercise of personal jurisdiction

over Brigade Electronics would not offend traditional notions of fair play and

substantial justice.

Appellants each filed a special appearance, which are substantively identical,

asserting that appellees did not meet their initial burden to plead sufficient

allegations to bring appellants within the provisions of the Texas long-arm statute.

And, appellees failed to allege that appellants “purposefully engaged in any activity

in Texas that caused injury there” and failed to demonstrate that the Texas court has

jurisdiction over them. They asserted that the United States Supreme Court has

“rejected the notion that simply placing a product into the ‘stream of commerce’—

even with the expectation that the product will reach the forum state—is enough to

establish personal jurisdiction.”

Brigade (UK) asserted that its principal place of business is in the United

Kingdom and that it “does not conduct any business activity in Texas.” It attached

the affidavit of its corporate representative, Philip Hanson-Abbott, who testified that

Brigade (UK) is not authorized to do business in Texas and does not have a registered

agent or any employees, representatives, officers, managers, or agents “currently

residing in or conducting business in Texas.” Also, it does not maintain an office,

warehouse, address, telephone number, or bank account in Texas. Its website is used

7 only for general, untargeted advertising. The website directs visitors to its dealers

for information, quotes on safety equipment, parts, and service. Brigade (UK)

asserted that haling it into a Texas court would not comport with traditional notions

of fair play and substantial justice because the complained-of acts and omissions

occurred, if at all, entirely in the United Kingdom.

Brigade (US) asserted that it is a New York corporation, has its principal place

of business in Indiana, and “does not conduct any business activity in Texas.” It

attached the affidavit of its chief executive officer, Corey Heniser, who testified that

Brigade (US) is not authorized to do business in Texas and does not have a registered

agent or any employees, representatives, officers, managers, or agents “currently

residing in or conducting business in Texas.” It does not maintain an office,

warehouse, address, telephone number, or bank account in Texas. Heniser also

testified that that the Brigade website is used only for general, untargeted

advertising. Brigade (US) asserted that haling it into a Texas court would not

comport with traditional notions of fair play and substantial justice because the

complained-of acts and omissions occurred, if at all, in New York or Indiana.

In their combined supplement, Brigade (UK) and Brigade (US) asserted that

they did not solicit the Port’s business. Rather, the Port learned about the BBS

alarms through the Port’s own consultant, HFP, whom the Port retained to evaluate

potential noise-abatement measures. In early 2005, the Port asked Brigade (UK) to

8 come to Houston to demonstrate the alarms. Brigade (UK) did not provide advice

on the use or risks of the alarms in any specific operating environment. The Port

then purchased four alarms from Brigade (UK) “for further testing.” And, HFP

performed the assessment. Morgan attended a meeting at the Port in November 2005

about purchasing BBS alarms. Subsequently, the Port elected to purchase BBS

alarms for its facility. Because the Port wanted a United States distributor to ensure

equipment availability, it purchased the alarms through its existing supplier,

Medsafe. Medsafe purchased the alarms from Brigade (US). Appellants attached

HFP’s acoustical study and excerpts of the depositions of Charlie Jenkins, a senior

director at the Port, and of Morgan, for Brigade (UK) and Brigade (US).

In their response, appellees asserted that the Texas trial court has specific

jurisdiction over Brigade (UK) and Brigade (US) because the jurisdictional facts

demonstrate that they placed the subject alarm into the stream of commerce and

purposefully targeted Texas as a market for the alarm, as follows:

1. Brigade participated in product demonstrations at the Port . . . ; 2. Brigade provided test units to the [Port] ultimately leading to the Brigade alarms being purchased and used in the [Port], including the alarm [at issue]; 3. Brigade provided information about the efficacy and suitability of its alarms for use in the [Port]; 4. Brigade met with the [Port] to provide information about the Brigade alarms ultimately to facilitate the sale of the Brigade alarms to the [Port] . . . ;

9 5. Brigade created a distributorship with Medsafe (a Texas limited partnership) to have a local company represent and sell the Brigade alarms. . . ; 6. Brigade is the sole source for manufacture and sale of the type of alarms they marketed to the [Port] . . . ; 7. Brigade easily sold over 700 alarms to the [Port] . . . ; 8. There were four Brigade alarms installed on the crane involved in the accident that resulted in the death of [the decedent.]

Appellees further asserted that Brigade used its sales to the Port in its marketing

materials. Appellees attached the depositions of Morgan and Jenkins, Medsafe’s

price quote, the Port’s purchase request and order, a product insert, a Brigade (US)

ledger of Texas sales, and a Brigade press release, website page, and advertisement.

The trial court denied the special appearances.

Personal Jurisdiction

In their sole issue, appellants argue that the trial court erred in denying their

special appearances because appellees’ failed to meet their initial burden to plead

jurisdictional allegations that would support jurisdiction and because appellants’

jurisdictional evidence negates appellees’ allegations.

A. Standard of Review and Guiding Legal Principles

A court may assert personal jurisdiction over a nonresident defendant only if

the requirements of both the Fourteenth Amendment’s due process clause and the

Texas long-arm statute are satisfied. See U.S. CONST. amend. XIV, § 1; TEX. CIV.

PRAC. & REM. CODE § 17.042; Guardian Royal Exch. Assurance, Ltd. v. English

10 China Clays, P.L.C., 815 S.W.2d 223, 226–27 (Tex. 1991). The Texas long-arm

statute allows a court to exercise personal jurisdiction over a nonresident defendant

who does business in Texas. TEX. CIV. PRAC. & REM. CODE § 17.042. A nonresident

“does business” in Texas if it, inter alia, “contracts by mail or otherwise with a Texas

resident and either party is to perform the contract in whole or in part” in Texas or it

“commits a tort in whole or in part” in Texas. Id. The Texas Supreme Court has

repeatedly interpreted this statutory language “to reach as far as the federal

constitutional requirements of due process will allow.” Guardian Royal, 815

S.W.2d at 226. Thus, the requirements of the Texas long-arm statute are satisfied if

the exercise of personal jurisdiction comports with federal due process limitations.

Id.

The United States Constitution permits a state court to assert personal

jurisdiction over a nonresident defendant only if the defendant has some minimum,

purposeful contacts with the state and if the exercise of jurisdiction will not offend

traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968

S.W.2d 319, 326 (Tex. 1998). A nonresident who has purposefully availed itself of

the privileges and benefits of conducting business in the state has sufficient contacts

with the state to confer personal jurisdiction. Guardian Royal, 815 S.W.2d at 226.

The Texas Supreme Court has characterized the “purposeful availment”

requirement as the “touchstone of jurisdictional due process.” Michiana Easy Livin’

11 Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In Michiana, the court

articulated three important aspects of the purposeful availment inquiry. Id. at 785.

First, only the defendant’s contacts with the forum count. Id. This ensures that a

defendant is not haled into a jurisdiction solely by the unilateral activities of a third

party. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).

Second, the acts relied on must be purposeful; a defendant may not be haled into a

jurisdiction solely based on contacts that are “random, isolated, or fortuitous.” Id.

Third, a defendant “must seek some benefit, advantage, or profit by ‘availing’ itself

of the jurisdiction” because “[j]urisdiction is premised on notions of implied

consent” and by “invoking the benefits and protections of a forum’s laws, a

nonresident consents to suit there.” Id. (citing World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297 (1980)).

A defendant’s contacts with a forum can give rise to either general jurisdiction

or specific jurisdiction. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,

575–76 (Tex. 2007). If the defendant has made continuous and systematic contacts

with the forum, general jurisdiction may be established whether or not the

defendant’s alleged liability arises from those contacts. Id. at 575. In contrast, when

specific jurisdiction is alleged, the focus of the minimum-contacts analysis is on the

“relationship among the defendant, the forum [,] and the litigation.” Id. at 575–76

(quoting Guardian Royal, 815 S.W.2d at 228).

12 Here, only specific jurisdiction is alleged. Specific jurisdiction is established

if the defendant’s alleged liability arises from or is related to an activity conducted

within the forum. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 796

(Tex. 2002). To constitute the minimum contacts required for a Texas court to

exercise specific personal jurisdiction over a nonresident defendant: (1) the

defendant’s contacts with Texas must be purposeful, as discussed above, and (2) the

cause of action must arise from or relate to those contacts. Old Republic Nat’l Title

Ins. Co. v. Bell, 549 S.W.3d 550, 558–59 (Tex. 2018). For a cause of action to arise

from or relate to purposeful forum contacts, “there must be a substantial connection

between those contacts and the operative facts of the litigation.” Moki Mac, 221

S.W.3d at 585.

A trial court determines a special appearance “on the basis of the pleadings,

any stipulations made by and between the parties, such affidavits and attachments as

may be filed by the parties, the results of discovery processes, and any oral

testimony.” TEX. R. CIV. P. 120a(3); see Touradji v. Beach Capital P’ship, L.P., 316

S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“The plaintiff’s

original pleadings, as well as its response to the defendant’s special appearance, can

be considered in determining whether the plaintiff satisfied its burden.”).

The plaintiff bears the initial burden of pleading allegations sufficient to bring

a nonresident defendant within the provisions of the Texas long-arm statute. Am.

13 Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002). If the

plaintiff fails to plead facts bringing the defendant within reach of the long-arm

statute (i.e., for a tort claim, that the defendant committed tortious acts in Texas), the

defendant need only prove that it does not live in Texas to negate jurisdiction. Kelly

v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). If the plaintiff

meets its initial burden, then the burden shifts to the nonresident to negate the

plaintiff’s alleged bases of jurisdiction. Id. at 658.

The defendant can discharge its burden

on either a factual or legal basis. Factually, the defendant can present evidence that it has no contacts with Texas, effectively disproving the plaintiff’s allegations. The plaintiff can then respond with its own evidence that affirms its allegations, and it risks dismissal of its lawsuit if it cannot present the trial court with evidence establishing personal jurisdiction. Legally, the defendant can show that even if the plaintiff’s alleged facts are true, the evidence is legally insufficient to establish jurisdiction; the defendant’s contacts with Texas fall short of purposeful availment; for specific jurisdiction, that the claims do not arise from the contacts; or that traditional notions of fair play and substantial justice are offended by the exercise of jurisdiction.

Id. at 659.

We review a trial court’s determination of a special appearance de novo. Moki

Mac, 221 S.W.3d at 574. The existence of personal jurisdiction is a question of law,

which must sometimes be preceded by the resolution of underlying factual disputes.

Michiana, 168 S.W.3d at 790–91; Predator Downhole Inc. v. Flotek Indus., Inc.,

504 S.W.3d 394, 401 (Tex. App.—Houston [1st Dist.] 2016, no pet.). In a special

14 appearance, the trial court is the sole judge of the witnesses’ credibility and the

weight to be given their testimony. Predator Downhole, 504 S.W.3d at 402. We

will not “disturb a trial court’s resolution of conflicting evidence that turns on the

credibility or weight of the evidence.” Id. When, as here, the trial court does not

issue findings of fact or conclusions of law with its ruling, all fact findings necessary

to support the judgment and supported by the evidence are implied. Marchand, 83

S.W.3d at 795.

B. Specific Jurisdiction8

1. Jurisdictional Allegations

Appellants assert, as they did in their special appearance, that appellees did

not meet their initial burden to plead sufficient allegations to bring appellants within

the provisions of the Texas long-arm statute. See TEX. CIV. PRAC. & REM. CODE

§ 17.042; Am. Type Culture Collection, 83 S.W.3d at 807 (plaintiff bears initial

burden to plead allegations sufficient to bring nonresident within provisions of Texas

long-arm statute).

Again, the Texas long-arm statute “authorizes the exercise of jurisdiction over

a nonresident defendant who does business in Texas.” Perna v. Hogan, 162 S.W.3d

648, 652 (Tex. App.—Houston [14th Dist.] 2005, no pet); see TEX. CIV. PRAC. &

8 Because appellees concede in their response that they allege only specific, and not general, jurisdiction over appellants, we confine our analysis accordingly. See George v. Deardorff, 360 S.W.3d 683, 688 (Tex. App.—Fort Worth 2012, no pet.).

15 REM. CODE § 17.042. A nonresident that has purposefully availed itself of the

privileges and benefits of conducting business in Texas has sufficient contacts with

the state to confer personal jurisdiction. See Guardian Royal, 815 S.W.2d at 226.

The statute provides, as relevant here, that a nonresident does business in Texas if it

“commits a tort in whole or in part in this state.” TEX. CIV. PRAC. & REM. CODE

ANN. § 17.042(2).

In Huynh v. Nguyen, the court held that the plaintiff satisfied its initial burden

by pleading that the defendant had “conducted business in Texas and committed

torts in Texas.” 180 S.W.3d 608, 619–20 (Tex. App.—Houston [14th Dist.] 2005,

no pet.). “There is no requirement that plaintiffs or other claimants plead in their

petition the theories or bases of personal jurisdiction upon which they rely; rather,

the only relevant pleading requirement flows from the need to plead allegations

sufficient to bring nonresident defendants within the provisions of the long-arm

statute.” Id. at 619. This minimal pleading requirement is satisfied by an allegation

that the nonresident defendants are doing business in, or have committed any act in,

Texas. Id. at 619–20; see also Horizon Shipbuilding, Inc. v. BLyn II Holding, LLC,

324 S.W.3d 840, 847 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding

plaintiff’s allegation that defendants committed torts in Texas was sufficient to bring

defendants within long-arm statute). Thus, here, appellees’ were required to plead

that Brigade (UK) and Brigade (US) committed a tortious act in Texas. See Kelly,

16 301 S.W.3d at 659; Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 403 (Tex.

App.—Houston [1st Dist.] 2011, pet. denied).

In their live petition,9 and in their response to the special appearances,10

appellees named Brigade (UK) and Brigade (US) each as a defendant, and thereafter

referred to them collectively as “Brigade Electronics.” Appellees alleged that

Brigade Electronics and its employees were negligent in marketing the BBS alarms

in Texas as suitable for use at the Port, when it fact they were not; in failing to warn

the Port about the appropriate placement and settings of BBS alarms on RTG cranes;

and in failing to use ordinary care in discharging their duties as a manufacturer and

seller of dangerous products. And, these acts and omissions were a proximate cause

of the decedent’s death in Texas and of appellees’ damages.

Appellees note that Brigade Electronics traveled to Texas three times to

market its BBS alarms to the Port and facilitate sales, participated in product

demonstrations at the Port in Texas, “conducted extensive product testing” at the

Port in Texas, made representations at the Port in Texas about the efficacy and

9 After Dehaney (the original plaintiff) filed her Fourth Amended Petition on March 14, 2019, she joined the Third Amended Petition in Intervention filed by Jefferson and Irby. Thus, the Third Amended Petition in Intervention, filed on May 30, 2019, was the live petition before the trial court at the time of its November 27, 2019 ruling on the special appearances. 10 See Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.— Houston [1st Dist.] 2010, no pet.) (considering plaintiff’s pleadings and response to defendant’s special appearance in determining whether plaintiff met burden).

17 suitability of its BBS alarms for use on RTG cranes, sold and directly delivered

alarms to the Port in Texas, and created and maintained a contract with a Texas

distributor, Medsafe, for the purpose of selling its alarms in Texas.

Appellees also alleged that Brigade Electronics defectively designed the BBS

alarms, so as to render them unreasonably dangerous; that a safer alternative design

existed, which Brigade Electronics failed to adopt; and that the defect was a

producing cause of the decedent’s death in Texas.11

Thus, appellees’ alleged that Brigade Electronics, i.e., Brigade (UK) and

Brigade (US), committed tortious acts, in whole or in part, in Texas. See VIA Metro.

Transit v. Meck, No. 18-0458, 2020 WL 3479509, at *9 (Tex. June 26, 2020)

(negligence); Robins v. Kroger Co., 982 S.W.2d 156, 160 (Tex. App.—Houston [1st

Dist.] 1998, no pet.) (products liability). We conclude that appellees met their initial

burden to plead sufficient allegations to invoke jurisdiction over Brigade (UK) and

Brigade (US) under the Texas long-arm statute. See TEX. CIV. PRAC. & REM. CODE

§ 17.042; Am. Type Culture Collection, 83 S.W.3d at 807; Horizon Shipbuilding,

324 S.W.3d at 847 (holding plaintiff’s allegation that defendants committed torts in

Texas was sufficient to bring defendants within long-arm statute).

11 The elements of a products liability claim alleging a design defect are that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009).

18 On appeal, appellants argue for the first time that appellees’ allegations are

insufficient to support jurisdiction “due to improper group pleading that attempts to

assign the same alleged instance of conduct” to both Brigade (UK) and Brigade

(US). They assert that appellees do not identify which of the named Brigade

defendants is the subject of each of their allegations. For instance, “[m]ultiple

entities cannot have made the same sale to MedSafe.” And, “[t]hus, Brigade was

not required to provide evidence disproving jurisdictional allegations and the special

appearance should have been granted on that basis alone.”

Generally, when a case involves multiple defendants, the plaintiff must

specify, and the court must examine, “each defendant’s actions and contacts with the

forum separately”; the defendants’ contacts cannot be aggregated. Morris v.

Kohls-York, 164 S.W.3d 686, 693 (Tex. App.—Austin 2005, pet. dism’d); see

Calder v. Jones, 465 U.S. 783, 790 (1984). “The requirements of International

Shoe . . . must be met as to each defendant over whom a state court exercises

jurisdiction.” Rush v. Savchuk, 444 U.S. 320, 331–32 (1980).

However, appellants do not direct us to any point in the record in which they

raised this issue in the trial court. The failure to preserve a due-process complaint

in the trial court results in waiver of the issue on appeal. See In re L.M.I., 119 S.W.3d

707, 711 (Tex. 2003); see also Burger King, 471 U.S. at 472 n.14 (“[T]he personal

19 jurisdiction requirement is a waivable right . . . .”); In re Fisher, 433 S.W.3d 523,

532 (Tex. 2014) (“Objections to personal jurisdiction may be waived.”).

Moreover, in Carey v. State, two defendants, the Careys, asserted that the

State’s jurisdictional allegations were insufficient because they improperly referred

to all four defendants named in the suit as an aggregate group and failed to specify

which alleged acts were committed by which defendants. No. 04-09-00809-CV,

2010 WL 2838631, at *1, 4 (Tex. App.—San Antonio July 21, 2010, pet. denied)

(mem. op.). There, as here, the plaintiff specifically named each defendant in its

petition, including each of the Careys, and thereafter referred to all of them

collectively as “Defendants” in stating the allegations. Id. at *4. The court

concluded that the allegations, when considered together and liberally construed,

asserted that the Careys committed fraudulent business practices in Texas, i.e.,

committed torts, which was all that was required under the Texas long-arm statute.

Id. at *5 (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004) (holding that courts liberally construe pleadings in favor of pleader

when determining whether pleader alleged sufficient facts to confer jurisdiction)).

Further, if a pleading is wholly devoid of jurisdictional facts, the plaintiff

should amend the pleading to include the necessary factual allegations, see TEX. R.

CIV. P. 63, thereby allowing jurisdiction to be decided based on evidence rather than

on allegations. Kelly, 301 S.W.3d at 659. Thus, even were we to conclude that

20 appellees’ allegations are insufficient, the remedy would be a remand to the trial

court. See, e.g., Energy Search Co. Inc. v. RLI Ins. Co., No. 14-18-00747-CV, 2019

WL 6711427, at *3 (Tex. App.—Houston [14th Dist.] Dec. 10, 2019, no pet.) (mem.

op.) (remanding, in part, based on plaintiff’s failure to plead sufficient facts to confer

jurisdiction over defendants).

2. Jurisdictional Facts

We next consider whether Brigade (UK) and Brigade (US) met their burden

to present evidence negating the alleged bases for personal jurisdiction.12 See Kelly,

301 S.W.3d at 659. And, if so, whether appellees responded with their own evidence

affirming their allegations. See id.

Again, the purposeful-availment analysis first considers whether a

defendant’s contacts with the forum were “random, isolated, or fortuitous” and

whether the defendant sought some “benefit, advantage, or profit by availing itself

of the jurisdiction.” Moki Mac, 221 S.W.3d at 575. “It is the quality and nature of

12 Generally, we determine specific jurisdiction on a claim-by-claim basis. See Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274–75 (5th Cir. 2006) (specific jurisdiction is claim-specific inquiry because “the Due Process Clause prohibits the exercise of jurisdiction over any claim that does not arise out of or result from the defendant’s forum contacts”); see, e.g., Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 660 (Tex. 2010) (addressing jurisdictional allegations for fraud claim separately from trust-fund claims). However, we need not assess a defendant’s contacts on a claim-by-claim basis when, as here, all claims essentially arise from the same forum contacts. See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150–51 (Tex. 2013); Touradji, 316 S.W.3d at 26. We discuss the facts related to Brigade (UK) and Brigade (US) together because the facts are intertwined. See TEX. R. APP. P. 47.1. 21 the defendant’s contacts, rather than their number, that is important.” Am. Type

Culture Collection, 83 S.W.3d at 806.

“[A] seller’s awareness ‘that the stream of commerce may or will sweep [its]

product into the forum State does not convert the mere act of placing the product

into the stream into an act purposefully directed toward the forum State.” See Spir

Star AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010) (internal quotations omitted);

see also Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., 480 U.S. 102 (1987)

(plurality opinion). “Instead, our precedent generally follows Justice O’Connor’s

plurality opinion in Asahi, which requires some ‘additional conduct’—beyond

merely placing the product in the stream of commerce—that indicates ‘an intent or

purpose to serve the market in the forum State.’” Spir Star AG, 310 S.W.3d at 873

(quoting Asahi, 480 U.S. at 112, and citing Moki Mac, 221 S.W.3d at 577, and

Michiana, 168 S.W.3d at 786). Such “additional conduct” might include:

(1) designing the product for the market in the forum State, (2) advertising in the

forum State, (3) establishing channels for providing regular advice to customers in

the forum State, and (4) marketing the product through a distributor who has agreed

to serve as the sales agent in the forum State. Asahi, 480 U.S. at 112; Spir Star AG,

310 S.W.3d at 873. A seller who reaches out beyond one state and creates continuing

relationships with residents of another state is subject to the specific jurisdiction of

the latter in suits arising from those activities. Michiana, 168 S.W.3d at 785.

22 a. Brigade (UK)

Appellees assert that Brigade (UK) has sufficient minimum contacts with

Texas because, as pertinent here, it:

• traveled to Texas three times to market BBS alarms to the Port • demonstrated a BBS alarm on an RTG crane at the Port in Texas • “conducted extensive product testing” at the Port in Texas • made representations at the Port in Texas about the efficacy and suitability of its BBS alarms for use on RTG cranes • sold and directly delivered alarms to the Port in Texas • “created a distributorship with Medsafe (a Texas limited partnership) to have a local company represent and sell the Brigade alarms”

In its special appearance, Brigade (UK) asserted that its jurisdictional

evidence negates appellees’ allegations that it purposefully directed acts toward

Texas. See Kelly, 301 S.W.3d at 659. Appellees asserted in their response that their

evidence in rebuttal establishes that the exercise of jurisdiction was proper. Id.

There is no jurisdictional evidence that Brigade (UK) designed the BBS

alarms for the Texas market. See Asahi, 480 U.S. at 112; Spir Star AG, 310 S.W.3d

at 873.

With respect to appellees’ allegations that Brigade (UK) traveled to Texas

three times to market its BBS alarms to the Port, demonstrated a BBS alarm on an

RTG crane at the Port in Texas, conducted product testing, made representations at

the Port about the efficacy and suitability of the alarms for use on RTG cranes, and

23 sold and directly delivered BBS alarms to the Port, Brigade (UK) asserts that it did

not initiate any of these contacts and that these actions were precipitated by requests

from the Port or HFP. Further, it did not conduct product testing or provide

information about the efficacy or suitability of the BBS alarms for use in any specific

Port operations. In support, Brigade (UK) attached HFP’s report and excerpts of the

depositions of Morgan and of the Port’s corporate representative, Charlie Jenkins.

Morgan testified that, in May 2005, at the invitation of either the Port or HFP,

he traveled to Texas and performed a demonstration at the Port of the BBS alarm’s

capabilities. He testified that the unit was “tested” on a leg of an RTG crane. And,

the demo resulted in the sale of four alarms for further evaluation. At the time,

Brigade (US) was in its early stages of formation as a business entity, and was not

yet functional, and Brigade (UK) did not yet have a relationship with Medsafe.

Accordingly, Brigade (UK) shipped the alarms directly from the United Kingdom to

the Port. He testified that the Port’s consultant, HFP, then performed testing and

analysis. In November 2005, Morgan attended a meeting at the Port, at which

various Port personnel discussed whether to purchase the BBS alarms. In February

2006, after the Port had decided to purchase the alarms, Morgan traveled to Texas

to thank Jenkins for the sales and “just to reinforce the relationship because there are

plenty of other things that we supply into ports.”

24 Jenkins also testified that the Port first learned about Brigade (UK) through

its consultant, HFP. In 2005, in constructing the Bayport terminal, the Port retained

HFP to assist with the federal permitting requirements. As part of the project, HFP

evaluated potential noise-mitigation measures and identified the BBS alarm as one

of the options. Jenkins testified that Brigade (UK) provided or sold four BBS alarms

to the Port for evaluation. The alarms were installed on an RTG crane, and HFP and

the Port performed evaluations with a number of stakeholders, including contractors

and crane operators. Jenkins noted that the Port did not involve vendors because of

the potential for bias. Similarly, the Port did not look to Brigade (UK) to perform a

suitability or risk assessment with respect to using the alarms on its RTG cranes.

The decision in 2006 to purchase the BBS alarms involved the Port, contractors, and

skilled trades, with the final decision by the Port Commission.

Brigade (UK)’s decisions to travel to Texas three times to demonstrate its BBS

alarms on an RTG crane at the Port and to market its BBS alarms, and its other

products, to the Port were purposeful and not simply random or fortuitous. See Moki

Mac, 221 S.W.3d at 575; see also Retamco Operating, Inc. v. Republic Drilling Co.,

278 S.W.3d 333, 340 (Tex. 2009) (concluding that defendant went “well beyond

answering a phone call from a Texas resident or shipping goods to Texas”); Smart

Call, L.L.C. v. Genio Mobile, 349 S.W.3d 755, 765 (Tex. App.—Houston [14th

Dist.] 2011, no pet.) (holding “decision to travel to Texas to conduct business can

25 only be classified as a purposeful act, and not random, fortuitous, or attenuated”).

The trial court could have reasonably concluded that Brigade (UK) sought a “benefit,

advantage, or profit by availing itself of the jurisdiction.” See Moki Mac, 221

S.W.3d at 575; see also Predator Downhole, 504 S.W.3d at 402 (noting trial court

is sole judge of witnesses’ credibility and weight to be given testimony). Thus, by

purposefully conducting business in Texas, with a Texas resident, Brigade (UK)

purposefully availed itself of the privilege of conducting business in Texas. See Max

Protetch, Inc. v. Herrin, 340 S.W.3d 878, 887 (Tex. App.—Houston [14th Dist.]

2011, no pet.) (holding defendant who voluntarily came to Texas and purposefully

conducted business with Texas resident “crossed a bright line and purposefully

availed itself of the privilege of conducting business in Texas”).

With respect to appellees’ allegation that Brigade (UK) “created a

distributorship with Medsafe (a Texas limited partnership) to have a local company

represent and sell the Brigade alarms,” Brigade (UK) asserted that Medsafe “was an

existing supplier to the Port.” (Emphasis added.) In support, Brigade (UK) pointed

to Morgan’s testimony. In the cited testimony, however, Morgan states: “I can’t

remember . . . . So my guess is Medsafe were already supplying the Port, became

aware of the opportunity, and then approached us but that is my best guess.”

“Evidence that is so slight as to make any inference a guess is in legal effect no

evidence.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 795 (Tex. 2006).

26 Brigade (UK) also points to Jenkins’s testimony that the Port “requested

Brigade to have a U.S. distribution company or distributor so that [it] had more

[assurance] of availability of equipment.” This supports appellees’ allegation.

Appellees’ evidence shows that Jenkins also testified that Port operations “requested

from Brigade a U.S. supplier to ensure [that the Port] had viability of supply, and

Brigade provided Medsafe.” (Emphasis added.) Morgan further testified that

Medsafe became an “authorized dealer” in “late 2005,” that the purpose of

establishing a relationship with Medsafe was to facilitate the Port sale, and that

Brigade extended Medsafe a line of credit to facilitate the purchase and sale of

Brigade’s products. Morgan noted that Medsafe was an “authorized dealer” for

replacement parts and that it provided support for Brigade products to Houston

customers. And, once Medsafe was in place, Brigade (US), also created in 2005,

became the supplier. Appellees’ evidence also includes Brigade’s product

instructions, which direct Brigade customers to its suppliers to address questions.

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

the forum and establishing channels for providing regular advice to customers there

constitutes “additional conduct”—beyond merely placing the product into the stream

of commerce—indicating “an intent or purpose to serve the market in the forum

State.” See Asahi, 480 U.S. at 112; see Spir Star AG, 310 S.W.3d at 873.

27 In Semperit Technische Produkte Gesellschaft M.B.H. v. Hennessy, a drilling

rig worker was killed when a high-pressure hydraulic hose failed. 508 S.W.3d 569,

572 (Tex. App.—El Paso 2016, no pet.). The plaintiffs sued STP, the Austrian hose

manufacturer, and SIP, its New Jersey subsidiary that distributed the hose. Id.

572–73. STP argued that its contacts with the forum did not fit the stream of

commerce “plus factors” in Asahi Metals because it did not design a product for

Texas, did not advertise in Texas, did not develop regular communication channels

with Texas customers, and did not have a distributor who agreed to serve as the sales

agent in Texas. Id. at 579. The court of appeals concluded: “While we may agree

that the facts of this case do not squarely fit into the examples offered by Asahi

Metals, we don’t perceive those four examples to be exclusive of the kind of factors

that guide this question.” Id. The court concluded that the “plus factor” present

there was that STP had established a sales subsidiary in New Jersey, had targeted

Texas, through its president visiting potential customers, and had participated in a

“distribution network that in fact ha[d] resulted in STP selling millions of dollars of

goods to Texas customers.” Id. The volume of sales “elevate[d] this case beyond

the ‘random,’ fortuitous,’ or ‘attenuated’ contacts alluded to in Burger King.” Id. at

579–80 (citing Burger King, 471 U.S. at 475–76). In affirming the denial of STP’s

special appearance, the court concluded that these factors demonstrated purposeful

availment of the Texas marketplace. Id. at 580, 587.

28 Here, like in Hennessy, the “plus factor” is the distribution network that

Brigade (UK) set up in 2005, with respect to Brigade (US) and Medsafe, and that,

since 2005, has resulted in selling “easily over” 700 BBS alarms to the Port and

“hundreds of thousands of dollars” in products in Texas. See id. at 579–80. As the

Michiana court acknowledged, a single contract can give rise to personal jurisdiction

when the contract “involves many contacts over a long period of time,” as here. 168

S.W.3d at 787 (emphasis added). The contacts of “[s]ellers who reach out beyond

one state and create continuing relationships and obligations with citizens of another

state” are purposeful rather than fortuitous. Id. at 785. When, as here, the evidence

shows that a nonresident defendant “has created continuing obligations” between

itself and residents of the forum, the nonresident defendant “manifestly has availed

[itself] of the privilege of conducting business there.” See Burger King, 471 U.S. at

475–76. And, because such defendant’s activities are “shielded by ‘benefits’ and

‘protections’ of the forum’s laws, it is presumptively not unreasonable to require [it]

to submit to the burdens of litigation in that forum as well.” Id. at 476.

On appeal, Brigade (UK) again asserts that its contacts with the Port “were

the result of a Texas resident’s actions—and were thus fortuitous and not

purposeful.” It asserts that the Port “initiated contact with Brigade,” “sought to have

Brigade come to the Port to demonstrate its products,” and “directed Brigade to

create a distribution arrangement with Medsafe.” It asserts that “the party who

29 instigated the contacts . . . is in fact crucial . . . to determining whether the contact

was purposeful on behalf of Brigade” and is a “central legal issue in this case.”

Courts have held that the issue of “who initiated contact” and the frequency

of solicitations is important in determining whether a defendant purposefully availed

itself of the forum in a buy-sell case. See Peters v. Top Gun Exec. Grp., 396 S.W.3d

57, 69 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Michiana, 168

S.W.3d at 784 (holding no purposeful availment when, inter alia, the sale was

initiated entirely by resident-buyer who called nonresident-seller)). However, this

factor is “less influential on the analysis when the parties . . . anticipate a long-term

commercial relationship involving multiple contacts,” as occurred in this case. See

id. (citing H. Heller & Co. v. La.-Pac. Corp., 209 S.W.3d 844, 852 (Tex. App.—

Houston [14th Dist.] pet. denied) (finding personal jurisdiction even though resident-

buyer initiated contact with nonresident-seller because transaction involved multiple

sales between parties)).

We conclude that Brigade (UK) purposefully availed itself of the privilege of

conducting activities in Texas. See Retamco Operating, 278 S.W.3d at 340.

We next consider whether there is a sufficient relationship between Brigade

(UK)’s contacts with Texas and the cause of action. See id. That is, we consider

whether the alleged liability of Brigade (UK) arises from or relates to its activity

conducted within Texas. See Bell, 549 S.W.3d at 558 (holding that minimum

30 contacts for exercise of specific personal jurisdiction require that defendant’s

contacts with forum be purposeful and that cause of action arises from or relates to

those contacts); Marchand, 83 S.W.3d at 796. It is not sufficient that a defendant

merely have a role in a chain of events. See Michel v. Rocket Eng’g Corp., 45

S.W.3d 658, 671 (Tex. App.—Fort Worth 2001, no pet.) (noting that “generalized

‘but for’ relationship between the forum and a non-resident defendant falls far short

of meeting the requirement for specific jurisdiction”). Rather, for a cause of action

to arise from or relate to purposeful forum contacts, “there must be a substantial

connection between those contacts and the operative facts of the litigation.” Moki

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

Appellees assert product liability and negligence claims. They allege that the

alarms were not fit for the purpose of adequately warning those in proximity of the

danger of an approaching crane; the alarms were defectively designed because they

did not operate at a sufficient frequency and decibel level; there was a foreseeable

risk that the alarms would fail to warn the decedent of the danger of the oncoming

crane; the risk could have been reduced or avoided with a safer alternative design,

which Brigade Electronics failed to adopt; and Brigade Electronics was negligent in

marketing the BBS alarms for use at a marine port.

The issue of whether defects in the design, and negligence in the application,

of the four BBS alarms on the RTG crane at issue caused a failure to adequately

31 warn the decedent of the oncoming crane and contributed to his death are operative

facts in this litigation, and Brigade (UK)’s contacts in marketing the BBS alarms on

an RTG crane in Texas and selling its BBS alarms to the Port in Texas are directly

related. Thus, Brigade (UK)’s contacts, discussed above, are substantially connected

to the operative facts of the litigation. See Nogle & Black Aviation, Inc. v. Faveretto,

290 S.W.3d 277, 284 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding

“issue of whether negligence in the design and inspection of the wing spar

modification . . . caused the wing separation on the accident aircraft [was] an

operative fact in [the] litigation . . . .” and contacts with Texas were directly related);

see also World–Wide Volkswagen, 444 U.S. at 297 (“[I]f the sale of a product of a

manufacturer . . . is not simply an isolated occurrence, but arises from the efforts of

the manufacturer . . . to serve directly or indirectly, the market for its product in other

States, it is not unreasonable to subject it to suit in one of those States if its allegedly

defective merchandise has there been the source of injury to its owner or to others.”).

Finally, when, as here, a nonresident defendant has purposefully established

minimum contacts with the forum state, “[o]nly in rare cases” will the exercise of

jurisdiction not comport with fair play and substantial justice.” Guardian Royal,

815 S.W.2d at 231. To evaluate this component, we consider Brigade (UK)’s

contacts in light of:

(1) the burden on the defendant;

32 (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate or international judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several nations or states in furthering fundamental substantive social policies.

Id. To defeat jurisdiction, Brigade must present “a compelling case that the presence

of some consideration would render jurisdiction unreasonable.” Id.

Here, Brigade (UK), in its special appearance, asserted that the Texas trial

court’s exercise of jurisdiction in this case would be unreasonable “because it has

not done anything to purposefully avail itself of the benefits of conducting business”

in Texas and because the “acts and omissions alleged against [it] occurred entirely

in the United Kingdom, if at all.” We concluded above that Brigade (UK)

purposefully availed itself of the benefits of conducting business in Texas and that

the alleged acts and omissions occurred in Texas. Brigade (UK) did not, in its special

appearance, otherwise address the factors above. See id. Thus, we have no other

basis for concluding that an exercise of jurisdiction would violate traditional notions

of fair play and substantial justice.

In sum, Brigade (UK) did not merely place its products into a stream of

commerce that happened to carry them to Texas. See Spir Star AG, 310 S.W.3d at

880. Rather, Brigade (UK) physically entered the jurisdiction with the purpose of

selling its product to the Port and established a new distributor relationship to 33 facilitate long-term sales. Thus, Brigade (UK) “intended to serve the Texas market.”

See id. And, its potential liability arises out of its contacts with Texas. See Moki

Mac, 221 S.W.3d at 585. Finally, exercising personal jurisdiction over Brigade

(UK) does not offend traditional notions of fair play and substantial justice. See

Guardian Royal, 815 S.W.2d at 231. We conclude that the pleadings and

jurisdictional evidence establish the trial court’s jurisdiction over Brigade (UK). We

hold that the trial court did not err in denying its special appearance.

b. Brigade (US)

In its special appearance, Brigade (US) asserted that the jurisdictional

evidence negates appellees’ allegations. See Kelly, 301 S.W.3d at 659. Appellees

asserted in their response that their evidence in rebuttal established that the exercise

of jurisdiction was proper. See id.

Appellees’ alleged that Brigade (US) “maintained a Texas distributor,

Medsafe, for the purpose of selling its alarms in Texas over time,” and Brigade (US)

has sold hundreds of alarms to the Port through Medsafe.

Brigade (UK), above, asserted in its special appearance that the Port ordered

BBS alarms through Medsafe and that “Medsafe would have purchased the alarms

from Brigade Electronics, Inc.,” i.e., Brigade (US). Brigade (UK) stated: “Only one

of the defendants, Brigade Electronics, Inc., [Brigade (US)] sold the alarms to

34 another company [Medsafe], who in turn sold them to the Port of Houston

Authority.”

Morgan testified that, after Brigade (UK) made two sales of alarms to the Port

for evaluation, all of the sales to the Port that followed were by Brigade (US),

through its Texas distributor, Medsafe. Morgan noted that Medsafe was an

“authorized dealer” for replacement parts and that it provided support for Brigade

products to Houston customers. Appellees’ evidence includes Brigade’s product

instructions that accompany the alarms, which directs Brigade customers to its

suppliers to address any questions. Appellees also presented a February 2006 price

quote that Medsafe sent to the Port for approximately 260 alarms; a March 27, 2006

Request for Port Commission Action; and an April 2006 Purchase Order by the Port,

to Medsafe, for $75,000.00. Morgan testified that, “[o]ver a period of time,” the

Port purchased “hundreds” of alarms. Appellees presented a 36-page spreadsheet of

Brigade (US) sales in Texas, including to Medsafe. It reflects that sales from

Brigade (US) to Medsafe began in 2005 and continued through 2012. Morgan

testified that, since 2005, Brigade (US) has sold “hundreds of thousands” of dollars

in products to Texas customers.

Morgan noted that, beginning in late 2005, Brigade (US) employed a sales

representative, Vance Fellers, who was assigned a sales territory consisting of

eastern Texas, including the Port. Fellers had a price list, maintained alarms for

35 customer evaluations, could accept orders from end users, and could set up new

distributorships, with approval by Brigade (US). Morgan noted that the “accounts

always buy directly from” Brigade (US), and “[t]he agent is there to try and make

sure the accounts keep buying from us.”

Again, marketing a product through a distributor who has agreed to serve as

the sales agent in the forum constitutes “additional conduct”—beyond merely

placing the product into the stream of commerce—that indicates “an intent or

purpose to serve the market in the forum State.” See Asahi, 480 U.S. at 112. By

marketing the BBS alarms through a distributor who has agreed to serve as the sales

agent in Texas, Brigade (US) has met Asahi’s “additional conduct standard.” See

Spir Star AG, 310 S.W.3d at 875 (“[B]y marketing [its] product through a distributor

who has agreed to serve as the sales agent in the forum state, AG has met Asahi’s

additional conduct standard.” (internal quotations omitted)). A single contract can

give rise to personal jurisdiction when the contract “involves many contacts over a

long period of time,” as here. Michiana, 168 S.W.3d at 787. And, the contacts of

“[s]ellers who reach out beyond one state and create continuing relationships and

obligations with citizens of another state” are purposeful rather than fortuitous. Id.

at 785.

Further, appellees’ claims arise from, or are related to, Brigade (US)’s Texas

contacts. See Moki Mac, 221 S.W.3d at 585 (holding that, “for a nonresident

36 defendant’s forum contacts to support an exercise of specific jurisdiction, there must

be a substantial connection between those contacts and the operative facts of the

litigation”); Marchand, 83 S.W.3d at 796 (holding specific jurisdiction is established

if defendant’s alleged liability arises from or is related to activity conducted within

forum). Again, Brigade (UK) asserted, and Morgan testified, that after Brigade (UK)

made two sales of alarms to the Port for evaluation, all of the sales to the Port that

followed were by Brigade (US), through its Texas distributor, Medsafe. Thus, the

trial court could have reasonably concluded that the alarms at issue were sold to the

Port by Brigade (US). The issue of whether negligence in the application of the four

BBS alarms on the RTG crane at issue caused a failure to adequately warn the

decedent of the oncoming crane and contributed to his death are operative facts in

the litigation, and Brigade (US)’s contacts in selling the very alarms at issue, through

its authorized distributor, to the Port in Texas are directly related. Thus, Brigade

(US)’s contacts are substantially connected to the operative facts of the litigation.

See Hennessy, 508 S.W.3d at 584.

Again, when, as here, a nonresident defendant has purposefully established

minimum contacts with the forum state, “[o]nly in rare cases” will the exercise of

jurisdiction not comport with fair play and substantial justice. Guardian Royal, 815

S.W.2d at 231. To evaluate this component, we consider Brigade (US)’s contacts in

light of:

37 (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate or international judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several nations or states in furthering fundamental substantive social policies.

Id. To defeat jurisdiction, Brigade (US) must present “a compelling case that the

presence of some consideration would render jurisdiction unreasonable.” See id.

Here, Brigade (US), in its special appearance, asserted that the Texas trial

court’s exercise of jurisdiction in this case would be unreasonable “because it has

not done anything to purposefully avail itself of the benefits of conducting business”

in Texas and because the “acts and omissions alleged against [it] occurred entirely

in New York or Indiana, if at all.” We concluded above that Brigade (US) did

purposefully avail itself of the benefits of conducting business in Texas and

appellees allege acts and omissions that occurred in Texas. Moreover, Brigade (US)

did not, in its special appearance, address any of the Guardian Royal factors above.

See id. Thus, here again, we have no basis for concluding that exercise of

jurisdiction would violate traditional notions of fair play and substantial justice.

In sum, Brigade (US), like its counterpart, did not merely place its products

into a stream of commerce that happened to carry them to Texas. See Spir Star AG,

310 S.W.3d at 880. Rather, it maintained a distributor relationship to facilitate long-

38 term sales. Thus, Brigade (US) “intended to serve the Texas market.” See id. And,

its potential liability arises out of its contacts with Texas. Finally, exercising

personal jurisdiction over Brigade (US) does not offend traditional notions of fair

play and substantial justice. We conclude that the pleadings and jurisdictional

evidence establish the trial court’s jurisdiction over Brigade (US). We hold that the

trial court did not err in denying its special appearance.

We overrule appellants’ sole issue.

Conclusion

We affirm the trial court’s order denying the special appearances of Brigade

(UK) and Brigade (US).

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Hightower and Adams.