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.