Fitzgerald Truck Parts and Sales, LLC v. Advanced Freight Dynamics, LLC

Affirmed and Memorandum Opinion filed April 29, 2021.

In the

Fourteenth Court of Appeals

NO. 14-19-00397-CV

FITZGERALD TRUCK PARTS AND SALES, LLC, Appellant

v.
ADVANCED FREIGHT DYNAMICS, LLC, Appellee

On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2018-17337

MEMORANDUM OPINION

In this interlocutory appeal, Fitzgerald Truck Parts and Sales, LLC, a
Tennessee limited liability company, appeals the trial court’s order denying its
special appearance. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7). Fitzgerald
Truck complains the trial court erred because its contacts with Texas are
insufficient to subject it to the jurisdiction of Texas courts. Because we hold that
Fitzgerald Truck purposefully established minimum contacts with Texas through
the contacts of an independent sales agent, we affirm the trial court’s order.
 I. BACKGROUND

Fitzgerald Truck is a licensed motor vehicle dealer that sells gliders—
refurbished commercial trucks—assembled by Fitzgerald Glider Kits, LLC.1
Fitzgerald Truck is based in rural Tennessee. It has neither employees nor property
in Texas and is not authorized to do business here. Fitzgerald Truck maintains a
national website and sells glider trucks all over the country.

Steve Lyons, the owner of appellee Advanced Freight Dynamics, LLC was
interested in purchasing a glider truck from Fitzgerald Truck in 2016. From
Fitzgerald Truck’s website, he found contact information for Fitzgerald Truck’s
Texas sales representative—Steve Cates. Lyons initiated contact with Cates via
email requesting information on glider trucks using Cates’s
“@fitzgeraldtrucksales.com” email address. Cates was an independent contractor,
engaged to sell trucks for Fitzgerald Truck through Fitzgerald Peterbilt III, LLC, a
Peterbilt dealership in Alabama. Though Cates had contact with Fitzgerald Truck
employees from time to time, he primarily worked through and reported to Marty
Eagle, an employee of Fitzgerald Peterbilt III, LLC. Cates was given access to
Fitzgerald Truck’s inventory database, truck photos, forms and its customer
relationship management system (Salesforce).

In 2017, Cates sent a marketing promotion to Lyons, who responded and
expressed renewed interest in buying a glider truck on behalf of Advanced Freight.
Cates met with Lyons in the Houston area at least once to discuss gliders, though
Lyons testified three separate in-person meetings occurred. In September 2017,
Advanced Freight signed a sales order for purchase of a truck and sent a deposit by
wiring the funds directly to Fitzgerald Truck in Tennessee. The truck selected by

1
Fitzgerald Glider Kits, LLC is not a party to this appeal. It filed a special appearance in
the trial court, which was granted and has not been challenged on appeal.

2
Advanced Freight was to include a “CAT authorized Rebuilt C15 550HP, 1850
Torque” engine covered by a four-year unlimited mileage warranty through
“CAT.”

Several weeks later, Lyons traveled to Tennessee to pick up the truck at the
Fitzgerald Truck plant. Lyons, on behalf of Advanced Freight, signed a bill of sale
and related documents. The bill of sale reiterated the specifications from the sales
order that the truck contained a “CAT authorized rebuilt” engine with a four-year
warranty and identified the serial number of the engine.

In March 2018, Advanced Freight filed suit in Harris County, Texas against
Fitzgerald Truck, asserting various contract and tort causes of action premised on
allegations that Fitzgerald Truck breached its contract with Advanced Freight
because (1) the truck did not have the engine and warranty identified in the sales
order and bill of sale and (2) Fitzgerald Truck misrepresented the truck’s engine
and/or warranty. Advanced Freight asserted that Fitzgerald Truck purposefully
availed itself of the privileges and benefits of conducting business in Texas by
engaging Steve Cates as its agent and salesman to sell vehicles on behalf of
Fitzgerald Truck in Texas. Fitzgerald Truck filed a special appearance and the
parties conducted jurisdictional discovery, including written discovery and
depositions. After a hearing in March 2019, the trial court denied Fitzgerald
Truck’s special appearance.2 This accelerated interlocutory appeal followed. See
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (authorizing interlocutory
appeal).

2
The trial court signed an order on Fitzgerald Truck’s special appearance on April 18,
2019, and an order on Fitzgerald Truck’s amended special appearance on April 22, 2019.
Because Fitzgerald Truck’s amended special appearance took the place of the prior pleading, for
purposes of this appeal we consider only the trial court’s order denying Fitzgerald Truck’s
amended special appearance. Tex. R. Civ. P. 65.

3
 II. GOVERNING LAW

A. Standard of review

Whether a trial court has personal jurisdiction over a defendant is a question
of law that we review de novo, but the trial court frequently must resolve questions
of fact in order to decide the issue. Old Republic Nat’l Title Ins. Co. v. Bell, 549
S.W.3d 550, 558 (Tex. 2018); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d
789, 794 (Tex. 2002). When, as here, a trial court does not state findings of fact
and conclusions of law with its ruling on a special appearance, all findings
necessary to support the ruling and supported by the evidence are implied,
although the sufficiency of the record evidence to support those findings may be
challenged on appeal. BMC Software, 83 S.W.3d at 795.

Evidence is legally sufficient if it would enable a reasonable and fair-minded
person to find the fact under review. See City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). A “legal-sufficiency review in the proper light must credit
favorable evidence if reasonable jurors could, and disregard contrary evidence
unless reasonable jurors could not.” Id. A legal-sufficiency challenge will be
sustained if the record reveals that evidence offered to prove a vital fact is no more
than a scintilla. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014). The
factfinder is the sole judge of the witnesses’ credibility and the weight to be given
their testimony. See Keller, 168 S.W.3d at 819.

In a factual-sufficiency challenge, we consider and weigh all of the
evidence, both supporting and contradicting the finding. See Mar. Overseas Corp.
v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). A court of appeals can set aside the
finding only if it is so contrary to the overwhelming weight of the evidence that the
finding is clearly wrong and unjust. Id. at 407. We may not substitute our own
judgment for that of the factfinder or pass on the credibility of witnesses. Id.
4
 A trial court should resolve a party’s special appearance based on the
pleadings, any stipulations between the parties, affidavits and attachments filed by
the parties, relevant discovery, and any oral testimony put forth before the court.
Tex. R. Civ. P. 120a(3).

B. Exercise of personal jurisdiction

The broad “doing business” language in the Texas long-arm statute allows
the exercise of personal jurisdiction to “reach[ ] as far as the federal constitutional
requirements of due process will permit.” U-Anchor Advert., Inc. v. Burt, 553
S.W.2d 760, 762 (Tex. 1977) (interpreting former Revised Statutes art. 2031b, Act
of Mar. 18, 1959, 56th Leg., R.S., ch. 43, § 4, 1959 Tex. Gen. Laws 85, 85–86)
(amended 1979) (current version at Tex. Civ. Prac. & Rem. Code § 17.042). Due
process is satisfied when the nonresident defendant has established minimum
contacts with the forum state and the exercise of jurisdiction comports with
traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945).

A nonresident defendant’s minimum contacts can create either general or
specific jurisdiction. TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016). Minimum
contacts exist when the nonresident defendant purposefully avails itself of the
privilege of conducting activities within the forum state, thus invoking the benefits
and protections of its laws. Michiana Easy Livin’ Country, Inc. v. Holten, 168
S.W.3d 777, 784 (Tex. 2005). There are three components to the “purposeful
availment” inquiry. Id. at 785. First, the relevant contacts are those of the
defendant, not the unilateral activity of another party or a third person. See Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Second, the contacts must be
purposeful rather than random, fortuitous, isolated, or attenuated. Id. Third, the
defendant must seek some benefit, advantage, or profit by availing itself of the

5
jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980).

A trial court has specific jurisdiction over a nonresident defendant when
(1) the defendant’s contacts with the forum state are purposeful and (2) the cause
of action arises from or relates to those contacts. Burger King, 471 U.S. at 472. In
conducting a specific-jurisdiction analysis, we focus on the relationship among the
defendant, the forum, and the litigation. Helicopteros Nacionales de Colombia v.
Hall, 466 U.S. 408, 414 (1984). Specific jurisdiction is established when the
defendant’s alleged liability “aris[es] out of or [is] related to” an activity conducted
within the forum. Id. at 414 n.8. The nonresident defendant must take action that is
purposefully directed at the forum state. Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569, 577 (Tex. 2007). To determine whether the nonresident defendant
purposefully directed action toward Texas, we examine the nonresident
defendant’s conduct indicating an intent or purpose to serve the Texas market. Id.
When a nonresident defendant is subject to specific jurisdiction, the trial court may
exercise jurisdiction over the defendant even if the defendant’s forum contacts are
isolated or sporadic. TV Azteca, 490 S.W.3d at 37.

C. Burden of proof

In a special appearance, the plaintiff and the defendant bear shifting burdens
of proof. Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653, 658 (Tex. 2010). The
plaintiff bears the initial burden of pleading sufficient allegations to bring a
nonresident defendant within the provisions of the Texas long-arm statute. Id.; see
Tex. Civ. Prac. & Rem. Code Ann. § 17.042. If the plaintiff meets its initial
burden, the burden then shifts to the defendant to negate all bases of personal
jurisdiction alleged by the plaintiff. Kelly, 301 S.W.3d at 658. “Because the
plaintiff defines the scope and nature of the lawsuit, the defendant’s corresponding

6
burden to negate jurisdiction is tied to the allegations in the plaintiff’s pleading.”
Id. At the special-appearance stage, we must take the plaintiff’s allegations as true.
See Moki Mac, 221 S.W.3d at 585. A defendant can negate jurisdiction on either a
factual or a legal basis. Kelly, 301 S.W.3d at 659. “Factually, the defendant can
present evidence that it has no contacts with Texas, effectively disproving the
plaintiff’s allegations.” Id. Or the defendant can show that even if the plaintiff’s
alleged facts are true, the evidence is legally insufficient to establish jurisdiction.
Id. If the defendant meets its burden of negating all alleged bases of personal
jurisdiction, then the plaintiff must respond with evidence “establishing the
requisite link with Texas.” See id. at 660.

Once the court concludes that the defendant has sufficient minimum contacts
with the state to establish personal jurisdiction, the defendant bears the burden of
establishing that the exercise of personal jurisdiction would offend traditional
notions of fair play and substantial justice. See Burger King, 471 U.S. 477–78;
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d
223, 231 (Tex. 1991).

III. ANALYSIS

Fitzgerald Truck argues the trial court erred in denying its special
appearance because: (1) Fitzgerald Truck lacks sufficient contacts with Texas to
confer specific jurisdiction over it; (2) the Texas contacts of Steve Cates cannot be
attributed to it because Cates had neither actual or apparent authority to act as its
agent; and (3) forcing Fitzgerald Truck to defend itself in Texas would violate
traditional notions of fair play and substantial justice.

Through the actions of Steve Cates—Fitzgerald Truck’s Texas agent—
Advanced Freight argues that (1) Fitzgerald Truck met the requirements for
establishing purposeful availment and (2) Cates’s contacts with Advanced Freight
7
in Texas are substantially connected to the operative facts of the lawsuit. Advanced
Freight argues the following evidence supports the court’s exercise of personal
jurisdiction over Fitzgerald Truck:

• Fitzgerald Truck designated Steve Cates, a Texas resident, as its sales agent
to set up a marketing channel in Texas;
• Fitzgerald Truck provided Cates with a Fitzgerald Truck email address
“@fitzgeraldtrucksales.com” in order to correspond with customers;
• Cates’s email signature read “Glider Sales, Texas;”
• Fitzgerald Truck set up a Facebook page for Cates;
• Fitzgerald Truck provided Cates with access to its customer relationship
management software (Salesforce) system;
• Fitzgerald Truck provided Cates with access to its Google Drive, which
contained its inventory information, forms and company documents;
• Cates twice took Steve Lyons, owner of Advanced Freight, to lunch in the
Houston area on behalf of Fitzgerald Truck;
• As Fitzgerald Truck’s agent, Cates met with Lyons on a third occasion in
Texas;
• Cates, as sales representative for Fitzgerald Truck, solicited Advanced
Freight;
• Cates sent numerous e-mails and SMS text messages to Advanced Freight;
• Fitzgerald Truck directed and accepted Advanced Freight’s transfer of
money drawn on a Texas bank; and
• Fitzgerald Truck promoted and benefitted from Texas sales, selling
approximately 6% of its gliders to Texas-based individuals or companies.
Both parties agree that the trial court’s exercise of personal (specific)

jurisdiction over Fitzgerald Truck depends on Steve Cates and his contacts with

Advanced Freight in Texas. Therefore, we must first determine whether Cates was

an agent of Fitzgerald Truck.

8
A. Was Steve Cates an agent of Fitzgerald Truck?

Although the trial court did not expressly find that Cates was Fitzgerald
Truck’s agent or employee, we presume the trial court impliedly found all facts
necessary to support the judgment if supported by legally and factually sufficient
evidence. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806
(Tex. 2002). Therefore, we construe Fitzgerald Truck’s argument that it is not
subject to specific jurisdiction in Texas as an attack on the legal and factual
sufficiency of the evidence to support the trial court’s implied findings that Cates
was acting as an agent of Fitzgerald Truck. See Walker Ins. Servs. v. Bottle Rocket
Power Corp., 108 S.W.3d 538, 549 (Tex. App.—Houston [14th Dist.] 2003, no
pet.).

The Texas contacts of agents or employees are attributable to their
nonresident principals. Huynh v. Nguyen, 180 S.W.3d 608, 620 (Tex. App.—
Houston [14th Dist.] 2005, no pet.); see also Burger King, 471 U.S. at 480 n.22
(stating that commercial activities carried out on a party’s behalf “may sometimes
be ascribed to the party,” but declining to “resolve the permissible bounds of such
attribution”). Absent actual or apparent authority, an agent cannot bind a principal.
See Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007) (“An agent’s authority to
act on behalf of a principal depends on some communication by the principal either
to the agent (actual or express authority) or to the third party (apparent or implied
authority.”)). We must determine whether there is legally- and factually-sufficient
evidence supporting a relationship between Fitzgerald Truck as principal and Cates
as agent for purposes of determining jurisdiction.

1. Actual authority

Actual authority denotes authority that the principal intentionally confers
upon the agent, or intentionally allows the agent to believe he has, or by want of
9
ordinary care allows the agent to believe himself to possess. Petroleum Workers
Union of the Republic of Mexico v. Gomez, 503 S.W.3d 9, 25 (Tex. App.—
Houston [14th Dist.] 2016, no pet.); see generally Gaines, 235 S.W.3d at182.

Fitzgerald Truck insists Cates was not, at any time, an agent acting on its
behalf.3 Fitzgerald Truck describes Cates as an independent contractor who
occasionally provided sales leads.4 Fitzgerald Truck, as evidence, provided an
affidavit from Tommy Fitzgerald, its Vice President of Sales and Marketing:

Mr. Cates was an independent contractor for companies other than
[Fitzgerald Truck]. He did not work for [Fitzgerald Truck]. Mr. Cates
has never been an employee of [Fitzgerald Truck], and . . . [Fitzgerald
Truck] has [n]ever made any payment of any kind to him. Mr. Cates
operated autonomously from [Fitzgerald Truck]. The companies did
not manage or control Mr. Cates, and Mr. Cates did not have the
authority to bind [Fitzgerald Truck] in contract. [Fitzgerald Truck] did
not train him, give instructions or directions to him, or supply him
with marketing materials. Mr. Cates’s glider-related activities were
managed and controlled by Marty Eagle . . . in 2017 in his capacity as
an employee of Fitzgerald Peterbilt III, LLC.

In his deposition, Cates largely supported that position. He testified that he
was an independent contractor and worked for himself. He reported to Marty
Eagle, an employee of Fitzgerald Peterbilt III, which was a Peterbilt truck
dealership in Alabama. He further explained that he had little contact with
employees of Fitzgerald Truck, and that he had no ability to negotiate price outside
of the parameters set by Fitzgerald Truck in its system. Cates also testified that he
was paid a flat commission for each truck he sold by Fitzgerald Peterbilt III.

3
In its appellate briefing, Fitzgerald Truck states that it never communicated with Cates,
and its management did not even know he existed. The evidence in the record, however, clearly
establishes that a variety of Fitzgerald Truck employees communicated with Cates about the
subject truck, even if upper management did not.
4
For purposes of this appeal, we assume without deciding that Cates was an independent
contractor and not an employee of Fitzgerald Truck.

10
However, Cates testified that he was provided with a Fitzgerald Truck email
address, as well as access to the company inventory, company forms and
documents and the company’s Salesforce system.

The evidence shows that Fitzgerald Truck did not control the means and
details of the process by which Cates performed any tasks or solicited customers.
In the record, there is no evidence that supports a finding that Fitzgerald Truck
gave Cates authority to bind it or that he acted as its agent. Thus, we conclude no
evidence of actual authority on which an agency relationship between Cates and
Fitzgerald Truck could have been based.

2. Apparent authority

There is evidence that Cates possessed apparent authority on behalf of
Fitzgerald Truck. To establish apparent authority, one must show that a principal
either knowingly permitted an agent to hold himself out as having authority or
showed such lack of ordinary care as to clothe the agent with indicia of authority.
See NationsBank v. Dilling, 922 S.W.2d 950, 952–53 (Tex. 1996). We look to the
acts of the principal and ascertain whether those acts would lead a reasonably
prudent person using diligence and discretion to suppose the agent had the
authority to act on behalf of the principal. Nguyen, 180 S.W.3d 623. Only the
conduct of the principal may be considered; representations made by the agent of
his authority have no effect. Id. Furthermore, the principal either must have
affirmatively held the agent out as possessing the authority or the principal must
have knowingly and voluntarily permitted the agent to act in an unauthorized
manner. Id.; Dilling, 922 S.W.2d at 953; see also Walker Ins. Servs., 108 S.W.3d at
551–52 (apparent authority when independent contractor handled most of contract
negotiations and his efforts were “accepted and ratified” by power company);
PanAmerican Operating v. Maud Smith Estate, 409 S.W.3d 168, 175–76 (Tex.

11
App.—El Paso 2013, pet. denied) (landman engaged as independent contractor was
found to have apparent authority when he corresponded with landowners using
company email and was given tools necessary to negotiate).

Here, a number of acts by Fitzgerald Truck suggest that a reasonably prudent
person would believe Cates possessed the authority to act on Fitzgerald Truck’s
behalf. First, it is undisputed that Fitzgerald Truck listed Cates on its website as a
Texas sales representative. Though Fitzgerald Truck’s Vice President, Tommy
Fitzgerald, testified that he was never aware of Cates’s inclusion on the website,
the company was undisputedly holding out Cates as a sales representative for the
company to the public. Fitzgerald Truck also provided Cates with a
“@fitzgeraldtrucksales.com” email address, as well as access to its company
documents and sales data.5 He was able to generate company sales orders, search
company inventory and submit special requests for customers. Not only was the
sales order for the truck generated by Cates on a company form with the company
logo, the sales order does not reflect that it was allegedly created by an outside
company, dealership or agent. It also lists “Steve” as the salesperson, along with all
of Cates’s contact information.

Lyons, the owner of Advanced Freight, testified that during his negotiation
for the purchase of the subject truck he was never made aware of the fact that
Cates was not an employee or agent of Fitzgerald Truck. This was borne out in the
correspondence between Lyons and Cates that is included within the record. Cates

5
Advanced Freight also references the fact that Fitzgerald Truck set up a Facebook page
for Cates. However, it is unclear from the evidence who set up the Facebook page, as Cates
attributed the page to “some outside marketing team” for Fitzgerald Truck. In his deposition,
Tommy Fitzgerald testified he was unaware of Cates’s Facebook page and that he highly
discouraged the use of any Facebook pages other than the company’s primary page. It is
undisputed that Cates’s email signature contained a link to his “Fitzgerald Truck” Facebook
page, and it is also undisputed that Fitzgerald Truck never asked Cates to remove the link.

12
facilitated the sale by communicating with Fitzgerald Truck employees regarding
production timing, changing the sales order to reflect the inclusion of a different
engine and requesting Fitzgerald Truck employees generate purchase orders for
accessories to be included in Advanced Freight’s financing. Fitzgerald Truck sent
Cates an email notification when the truck was available advising that Cates
needed to notify the customer and schedule the vehicle pickup. Cates acted as the
representative of Fitzgerald Truck to Advanced Freight at least in the respects we
have described, a far cry from simply passing along a sales lead.

The evidence in the record reflects Fitzgerald Truck’s awareness and
endorsement of Cates’s sales efforts. The fact that Cates was given a company
email address and access to the company’s inventory and Salesforce system
reflects Fitzgerald Truck’s decision to ensure customers interacting with Steve
Cates had the same experience and impression as if they were working with an
employee or authorized agent of the company. See Dilling, 922 S.W.2d at 953
(apparent authority established when principal knowingly permitted agent to hold
itself out as having authority). From all outward appearances, Cates was acting on
behalf of Fitzgerald Truck, and nothing in the record suggests Fitzgerald Truck
discouraged that appearance. We conclude there is legally-sufficient evidence
supporting a relationship between Fitzgerald Truck as principal and Cates as agent
for purposes of determining jurisdiction.

We turn now to our factually-sufficiency review. The evidence supporting
Fitzgerald Truck’s argument that Cates was not an agent, and had no apparent
authority comes from affidavits supplied by Tommy Fitzgerald and Marty Eagle.
Tommy Fitzgerald stated that Cates was an independent-contractor salesman, who
was never an employee of Fitzgerald Truck and was never paid directly by
Fitzgerald Truck. He also emphasized that Cates did not have actual authority to

13
bind Fitzgerald Truck “in contract, execute a sale, or negotiated the sale of its
products outside pricing parameters set by the company’s management.” Fitzgerald
Truck relies heavily on the fact that Cates was not managed or controlled by
Fitzgerald Truck, and instead he received his authority from Marty Eagle, an
employee of Peterbilt III. An affidavit from Marty Eagle supports this assertion.

Fitzgerald Truck emphasizes that the sales order submitted by Cates did not
bind the company and that it had the power to accept or reject sales orders as it saw
fit. However, the sales order generated by Cates, signed by Advanced Freight and
ultimately accepted by Fitzgerald Truck, does not warn the customer about the
conditional nature of the sales order. Rather, the sales order states “Your truck will
be assembled from this sales order. Please make sure all items are correct. If
changes need to be made, please contact your sales rep . . . No truck will be
assembled without a signed sales order.” Cates also testified that when he
generated sales orders, his designation of a specific truck in the sales order would
effectively “tie up” or reserve a truck in Fitzgerald Truck’s inventory. The
evidence established that Cates was instrumental in retaining Advanced Freight as
a sales lead and negotiating Advanced Freight’s purchase of a glider truck. The
evidence also established that Fitzgerald Truck was aware of Cates’s involvement
and provided Cates with company resources to complete and negotiate sales.

Though Fitzgerald Truck and its management may have believed that Cates
was just an independent contractor bringing sales leads to the company, the test for
apparent authority is whether the acts of the principal would lead a reasonably
prudent person using diligence and discretion to suppose the agent had the
authority to act on behalf of the principal. See Nguyen, 180 S.W.3d 623.
Considering the foregoing, Fitzgerald Truck’s assertions that Cates was not an
agent are not sufficient to defeat the evidence of apparent authority. Reviewing all

14
the evidence, we conclude there is legally- and factually-sufficient evidence
supporting a relationship between Fitzgerald Truck as principal and Cates as agent
for purposes of determining jurisdiction.

B. Did the trial court properly conclude that it could exercise personal
jurisdiction?
Having determined that Cates was indeed an agent of Fitzgerald Truck with
apparent authority, we next consider whether Fitzgerald Truck, through its own
actions or those of its agent, purposefully established minimum contacts with
Texas. See Burger King, 471 U.S. at 474 (noting that “the constitutional touchstone
remains whether the [nonresident] defendant purposefully established ‘minimum
contacts’ in the forum State”) (citing Int’l Shoe Co., 326 U.S. at 316).

Fitzgerald Truck argues that because Advanced Freight takes the position
that Cates did not specifically make misrepresentations, rather Cates made
misrepresentations on behalf of Fitzgerald Truck, Cates’s involvement is irrelevant
to the jurisdictional analysis. This argument is misplaced. Fitzgerald Truck has not
disputed that the specifications for the truck represented by Cates to Advanced
Freight were taken from its inventory and/or its company information. Because we
have already determined that Cates had apparent authority to act on behalf of
Fitzgerald Truck, the representations made in this respect by Cates were made on
behalf of Fitzgerald Truck and attributable to it. See Nguyen, 180 S.W.3d at 620;
see also Burger King, 471 U.S. at 480 n.22.

1. Purposeful contacts with Texas

Fitzgerald Truck publicly advertised Cates as its sales representative for
Texas. It was not by chance that Lyons found Cates’s contact information.
Advanced Freight contacted Cates because his contact information was listed on
Fitzgerald Truck’s website as the contact for Texas sales. At the time, Cates was a

15
resident of Texas and an independent contractor, engaged to sell trucks and
develop sales leads for Fitzgerald Truck in Texas. Cates, on behalf of Fitzgerald
Truck, solicited Advanced Freight and met with its owner in person. Given that
Cates’s contacts with Advanced Freight in Texas are attributable to Fitzgerald
Truck, we conclude that Fitzgerald Truck had purposeful contacts with Texas. See
Searcy v. Parex Res., Inc., 496 S.W.3d 58, 67 (Tex. 2016). Additionally, Fitzgerald
Truck sought benefit and profit in the state. See Michiana, 168 S.W.3d at 785.
Utilizing the services of Cates allowed Fitzgerald Truck to generate new sales and
solicit business in Texas. Far from seeking to avoid Texas, Fitzgerald Truck sought
to serve the Texas market. See Moki Mac, 221 S.W.3d at 577.

2. Substantial connection between Texas and operative facts

Fitzgerald Truck next argues that even if Cates were its agent that (1) there
was no evidence Fitzgerald Truck made any representations in Texas about the
glider truck’s engine, through Cates or otherwise, and (2) even if such
representations had been made in Texas, they would not be substantially related to
the operative facts of the litigation. Fitzgerald Truck attempts to frame Advanced
Freight’s claims in this lawsuit as concerning solely the characteristics of a truck
assembled and delivered in Tennessee and a contract executed and performed in
Tennessee. However, Fitzgerald Truck’s arguments are not persuasive.

We first address whether there is any evidence in the record of
representations made in Texas about the glider truck’s engine. Fitzgerald Truck
specifically claims that Advanced Freight relied on a representation made in the
bill of sale as the basis for its claims, which Fitzgerald Truck alleges has no
connection to Texas. Fitzgerald Truck reaches this conclusion by determining that
the sales order, prepared by Cates in Texas, did not contain any representations
because it was an offer, not a contract. And because Fitzgerald Truck asserts the

16
sales order was simply an offer to purchase a truck by Advanced Freight with
certain specifications, it could not therefore contain representations from Fitzgerald
Truck. However, the evidence demonstrates the opposite was true. The sales order
was an offer prepared and sent by a sales representative of Fitzgerald Truck to
Advanced Freight to sell a truck with certain specifications at a specific price. The
sales order was printed on a Fitzgerald Truck form. It contains an order number
and order date and requires that the customer, here Advanced Freight, sign the
sales order with the following admonition “Approval Signature Required to
Assemble Please Read!” Advanced Freight accepted the offer by signing the sales
order.6 See Tex. Bus. & Com. Code Ann. § 2.204 (“A contract for sale of goods
may be made in any manner sufficient to show agreement, including conduct by
both parties which recognizes the existence of such a contract.”); Tex. Bus. &
Com. Code Ann. § 2.206 (“An offer to make a contract shall be construed as
inviting acceptance in any manner and by any medium reasonable in the
circumstances”). Fitzgerald Truck recognized the existence of this contract through
its conduct in preparing the truck for delivery, accepting Advanced Freight’s funds
and delivering the truck.7 See id. § 2.204. Therefore, the sales order was a contract

6
Because the transaction here involved a sale of goods, the Uniform Commercial Code
(“UCC”), as adopted in the Business and Commerce Code, applies. See Tex. Bus. & Com. Code
Ann §§ 2.101–.725; see also Medical City Dallas, Ltd., v. Carlisle Corp., 251 S.W.3d 55, 59 n.3
(Tex. 2008). Chapter 2 broadly defines “goods” to mean things that are moveable at the time of
identification to the contract for sale. See Tex. Bus. & Com. Code Ann.§ 2.105(a).
7
The bill of sale, relied on by Fitzgerald Truck as the only contract at issue, does not
contact a merger or integration clause affecting consideration of the sales order. There is no
indication in the bill of sale that it is intended to be the final expression of an agreement. See
Tex. Bus. & Com. Code Ann. § 2.202 (final written expression); see generally Italian Cowboy
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 334 (Tex. 2011) (standard merger
clause “achieves the purpose of ensuring that the contract at issue invalidates or supersedes any
previous agreements”). The sales order also does not indicate that it is conditional or anything
other than a contract. Instead, it states: “Your truck will be assembled from this sales order.
Please make sure all items are correct. If changes need to be made, please contact your sales rep .
. . No truck will be assembled without a signed sales order.”

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and contained a clear representation that the subject truck, identified by its vehicle
identification number, would include a “CAT” authorized-rebuilt engine with a
four-year warranty. Evidence in the record also reflects that Cates emailed
Advanced Freight various Fitzgerald Truck documents containing information
about warranties provided in-house through Fitzgerald Truck, as well as
manufacturer warranties through Caterpillar. Therefore, Fitzgerald Truck’s
argument that no representations were made in Texas cannot be supported based
on the evidence in the record.

We next address Fitzgerald Truck’s contention that even if such
representations had been made in Texas, they would not be substantially related to
the operative facts of the litigation. Only when there is a substantial connection
between the defendant’s purposeful contacts with Texas and the operative facts of
the litigation may a trial court exercise specific jurisdiction over the nonresident.
Moki Mac, 221 S.W.3d at 585. Fitzgerald Truck likens the jurisdictional
allegations here to those in Moki Mac, because it claims the underlying lawsuit is
based on the bill of sale executed in Tennessee and not the contacts between Cates
and Advanced Freight in Texas. Id. However, Fitzgerald Truck misreads Moki Mac
to stand for the proposition that “allegations of misrepresentations made in Texas
are not enough to support specific jurisdiction where the principal alleged tort
occurred outside of Texas.” In Moki Mac, the plaintiffs’ son was fatally injured
while taking part in a river-rafting excursion guided by Moki Mac in Arizona. Id.
at 573. The plaintiffs filed suit in Texas and alleged specific jurisdiction over Moki
Mac because Moki Mac made misrepresentations in its Texas solicitations. Id.
However, the supreme court found that the relationship between Moki Mac’s
promotional representations in Texas and the operative facts of the litigation were
too attenuated to satisfy due-process concerns. Id. at 588. The facts in the instant

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case are distinguishable, as the representations made to Advanced Freight in the
sales process, and in the sales order, regarding the engine and engine warranty are
substantially related to Advanced Freight’s claims in this lawsuit that the engine
was not what was represented.

The arguments made by Fitzgerald Truck ignore that the sales order contains
identical specifications for the engine as the bill of sale. The bill of sale specifies
that the truck’s engine should have been a Caterpillar or “CAT” authorized-rebuilt
C15 550HP, 1850 torque engine. The bill of sale further specifies the engine
should also have been covered by a four-year unlimited warranty through
Caterpillar. The only difference between the sales order and the bill of sale, with
respect to the engine, is that Fitzgerald Truck added the serial number of the engine
to the bill of sale where the sales order states “TBD.” It is clear representations
were made to Advanced Freight about the engine and its warranty during the sales
process and in the sales order. The bill of sale simply carries forward the
specifications represented to Advanced Freight in the sales order. Thus, Cates’s
representations of the engine to be installed in the truck, along with his preparation
of the sales order stating that Advanced Freight would receive a four-year warranty
on the engine from “CAT,” were made in Texas and bear a substantial connection
to the operative facts of this litigation. See Siskind v. Villa Found. For Educ., Inc.,
642 S.W.2d 434, 437 (Tex. 1982) (enrollment for out-of-state school was executed
in Arizona, but was “actively and successfully solicited” in Texas).

However, even if we were to conclude that the manufacture and sale of the
truck were completed in Tennessee and therefore Advanced Freight’s claims did
not strictly arise out of Fitzgerald Truck’s Texas contacts, those facts are not
enough to preclude specific jurisdiction in this case. In a recent opinion, the United
States Supreme Court reiterated the rule that a suit must “arise out of or relate to

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the defendant’s contacts with the forum,” but clarified that “proof that the
plaintiff’s claim came about because of the defendant’s in-state conduct” is not
required. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026
(2021). In these companion cases, the Supreme Court addressed an automobile
manufacturer’s argument that no specific jurisdiction existed over plaintiffs’
product-liability claims because the vehicles at issue were not designed,
manufactured, or sold in Montana or Minnesota and, therefore, there was not a
sufficient connection between its activities in the forum states and the plaintiffs’
claims. Id. 1022. The Court rejected this argument stating that it has never required
a causal connection to support specific jurisdiction. Id. at 1026. “The first half of
that standard asks about causation; but the back half, after the ‘or,’ contemplates
that some relationships will support jurisdiction without a causal showing.” Id. The
Court held that the automobile manufacturer’s extensive activities in Montana and
Minnesota (promotion, sale and service) had a “close enough” connection with the
plaintiffs’ claims (resident’s in-state injury from a vehicle model sold in the state)
to support specific jurisdiction. Id. at 1032. Similarly, Advanced Freight’s claims,
at a minimum, “relate to” Fitzgerald Truck’s contacts with Texas (promotion and
sale of trucks to Texas residents), which supports specific jurisdiction.

C. Was the exercise of personal jurisdiction consistent with traditional
notions of fair play and substantial justice?

Though we have determined that Fitzgerald Truck has sufficient minimum
contacts with Texas to support specific personal jurisdiction, we must also
determine whether exercising that jurisdiction comports with traditional notions of
fair play and substantial justice. See Bell, 549 S.W.3d at 559; see also Peredo v. M.
Holland Co., 310 S.W.3d 468, 476 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (court considers whether exercise of jurisdiction offends traditional notions of
fair play and substantial justice only if minimum contacts are established). In
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making this determination we consider the following factors, when appropriate:

(1) the burden on the defendant; (2) the interests of the forum in
adjudicating the dispute; (3) the plaintiff’s interest in obtaining
convenient and effective relief; (4) the interstate judicial system’s
interest in obtaining the most efficient resolution of controversies; and
(5) the shared interest of the several states in furthering fundamental
substantive social policies.
Guardian Royal Exch., 815 S.W.2d at 232. The defendant bears the burden of
presenting a compelling case that the presence of some consideration would render
the exercise of jurisdiction over it unreasonable. Spir Star AG v. Kimich, 310
S.W.3d 868, 879 (Tex. 2010). “If a nonresident has minimum contacts with the
forum, rarely will the exercise of jurisdiction over the nonresident not comport
with traditional notions of fair play and substantial justice.” Moncrief Oil Int’l.
Inc., v. OAO Gazprom, 414 S.W.3d 142, 154–55 (Tex. 2013).

Fitzgerald Truck asserts that defending itself in Texas is unduly burdensome
because it is a Tennessee limited liability company without any minimum contacts
with Texas. Fitzgerald Truck also claims that its business has deteriorated
financially and that presenting witnesses in Texas would work substantial financial
hardship and disrupt its business. Although it would be a burden on Fitzgerald
Truck for its representatives to travel to Texas to participate in litigation, “the same
can be said of all nonresidents” and “[d]istance alone cannot ordinarily defeat
jurisdiction.” Id. at 155; Guardian Royal Exch., 815 S.W.2d at 231 (noting that
“modern transportation and communication have made it much less burdensome
for a party sued to defend himself in a State where he engages in economic
activity”). Fitzgerald Truck may be burdened by having to defend itself in
litigation, which would happen regardless of which forum it was pending, but
Fitzgerald Truck has not demonstrated that this burden is an unreasonable one. See
Hoagland v. Butcher, 474 S.W.3d 802, 816 (Tex. App.—Houston [14th Dist.]
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2014, no pet.).

Contrary to Fitzgerald Truck’s position that Texas has little interest in a
dispute concerning representations made in Tennessee by a Tennessee company,
Texas has an “obvious interest in providing a forum for resolving disputes
involving its citizens, particularly those disputes in which the defendant allegedly
committed a tort in whole or in part in Texas.” D.H. Blair Inv. Banking Corp. v.
Reardon, 97 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2002, pet. dism’d
w.o.j.); see also Moncrief Oil, 414 S.W.3d at 155. Fitzgerald Truck also argues that
the burden on Advanced Freight to litigate this case in Tennessee would be
minimal, because Advanced Freight runs a national trucking operation. However,
the fact that Advanced Freight is an over-the-road trucking company that operates
trucks outside of its home state does not justify the conclusion there would be
minimal burden on Advanced Freight to litigate in Tennessee. There is no question
it would be more convenient for Advanced Freight to litigate the case in its home
state where it alleges the torts occurred. See Moncrief Oil, 414 S.W.3d at 155.

Fitzgerald Truck also argues the interstate judicial system would be best
served if the Texas courts did not exercise jurisdiction because (1) the
overwhelming majority of witnesses and evidence are located in Tennessee and
(2) Tennessee law will likely govern the dispute. However, Fitzgerald Truck relies
on no authority or evidence to support these arguments. And because the parties
have already conducted extensive discovery in this case and the trial court is
familiar with the case, it promotes judicial economy to litigate Advanced Freight’s
claims in Texas. Moncrief Oil, 414 S.W.3d at 155. Further, Steve Cates—a crucial
witness—is a current resident of Texas. The process of ensuring the attendance of
Cates at a trial in Tennessee would be more complicated and involve greater
expense than if the parties litigate the matter in Texas. Therefore, Fitzgerald Truck

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has not made a compelling case that it would be unreasonable for the court to
exercise personal jurisdiction in this case. See Hoagland, 474 S.W.3d at 816.

On balance, this is not one of the rare cases in which exercising jurisdiction
does not comport with fair play and substantial justice. Cf. Asahi Metal Indus. Co.
v. Super. Ct. of Cal., 480 U.S. 102, 114–16 (1987) (exercising jurisdiction was not
fair when only remaining claim was for indemnification by Taiwanese corporation
against Japanese corporation); Guardian Royal Exch., 815 S.W.2d at 233
(exercising jurisdiction was not fair when, in suit between insurers, decedent’s
family and original defendant had no interest in outcome and insurers were not
Texas consumers or insureds). We conclude that exercising personal jurisdiction
over Fitzgerald Truck in Texas would not offend traditional notions of fair play
and substantial justice. Accordingly, we hold that the trial court did not err by
denying Fitzgerald Truck’s special appearance and we overrule Fitzgerald Truck’s
sole issue.

IV. CONCLUSION

We overrule Fitzgerald Truck’s sole issue on appeal and affirm the trial
court’s order denying Fitzgerald Truck’s special appearance.

/s/ Charles A. Spain
Justice

Panel consists of Justices Jewell, Spain, and Wilson.

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