2018 WL 4040363

Supreme Court of Alaska.
HDI-GERLING AMERICA INSURANCE COMPANY, as subrogee of Eggor Enterprises, Inc., Appellant and Cross-Appellee,
v.
CARLILE TRANSPORTATION SYSTEMS, INC., Appellee and Cross-Appellant.
Supreme Court Nos. S-16584/16604
|
August 24, 2018
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dani Crosby, Judge. Superior Court No. 3AN-14-07190 CI
Attorneys and Law Firms
Mark E. Wilkerson and Michelle Q. Pham, Preg O’Donnell & Gillett PLLC, Seattle, Washington, for Appellant/Cross-Appellee.
Robert L. Richmond and Marc G. Wilhelm, Richmond & Quinn, P.C., Anchorage, for Appellee/Cross-Appellant.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION
WINFREE, Justice.

I. INTRODUCTION
*1 An insurance company, as subrogee of its trucking company client, sued another trucking company for negligence after an accident between two truckers resulted in the insurance company paying over $3.5 million in oil spill remediation costs. After a trial the jury determined that the other trucking company’s driver was not negligent and returned a defense verdict. The insurance company now appeals some of the superior court’s trial rulings. Seeing no reversible error, we affirm the superior court’s entry of final judgment.

II. FACTS AND PROCEEDINGS

A. Facts
One night in February 2014 Carlile Transportation Systems, Inc. driver Bart Neal was driving a tractor-trailer southbound on the Dalton Highway. Neal could not steer properly at speeds above 35 miles per hour and decided to stop to put chains on his tires, referred to as “chaining up.” Neal stopped his rig in the roadway, partially blocking both traffic lanes, and, by his account, activated his flashers. Neal did not deploy reflective triangles.

Meanwhile, south of where Neal was stopped, Eggor Enterprises, Inc. driver Joe Seurer was hauling a load of fuel northbound. By his account, Seurer saw lights in the distance but could not determine what they were. He called on the radio but received no response, and he slowed his tractor-trailer from 50 to 35 miles per hour. About three-quarters of a mile from Neal, Seurer again saw lights and thought they might be from a pipeline maintenance truck stopped off the side of the road. He did not see reflective triangles or flashers.

The road had an S-curve between Seurer and Neal. Until Seurer rounded the final curve, he did not realize Neal’s rig was blocking the road. Seurer applied his brakes about 300 feet from Neal, avoiding a serious collision but causing Seurer’s trailer to fall onto the side of the highway. The trailer’s fuel load spilled alongside the road. Eggor Enterprises’s insurer, HDI-Gerling American Insurance Company (HDI), paid over $3.5 million in cleanup costs to remediate the spill.

B. Proceedings
In October 2015 HDI sued Carlile for the remediation costs and other damages, asserting the spill was caused by Neal’s negligence. The superior court held a ten-day jury trial in September 2016.

HDI’s primary theory of the case was that Carlile was vicariously liable for Neal’s actions and that Neal was either common-law negligent or negligent per se for violating 49 C.F.R. § 392.22, a federal highway regulation that applies to commercial drivers.1 Section 392.22 provides that commercial drivers who stop for any reason other than a “necessary traffic stop” must immediately activate flashers2 and, “as soon as possible, but in any event within 10 minutes,” deploy warning devices such as reflective triangles.3 HDI introduced evidence tending to show that Neal had not activated flashers; Neal admitted to not deploying triangles.

*2 Carlile argued in the alternative that Neal was not negligent, or that Neal’s negligence did not cause HDI’s injury, or that Seurer was negligent and comparatively at fault. Carlile sought to show that Neal complied with section 392.22 by arguing that it does not apply to chain-up stops lasting less than ten minutes. Carlile introduced evidence tending to show that Neal had activated flashers but conceded that he had not deployed triangles.

Both parties presented evidence supporting their theories. Much of the evidence was conflicting, but all witnesses — including Seurer and a former State of Alaska compliance officer — agreed that commercial drivers did not have to deploy triangles when they stopped to chain up on the Dalton Highway.

Most of the trial proceeded without controversy, but during Neal’s testimony he made two potentially prejudicial remarks in front of the jury. Neal knew Seurer by his radio call sign “Smokin’ Joe,” and during pretrial proceedings the superior court ordered Carlile to refrain from referring to Seurer by this name; HDI was concerned that the name would suggest to the jury that Seurer was a reckless driver.

Although warned not to say “Smokin’ Joe” during testimony, Neal nevertheless said: “So if you got to chain up, by the time I go out, put the reflectors out, go back, chain up, and then go back out and get the reflectors again, under this circumstances, I probably would have been killed by Smokin’ Joe when he come around that corner.” The superior court called an immediate bench conference, which concluded with the court deciding: “We’ll let it go this time, but next time, if he says it again, I’ll say something.” HDI did not object to this course of action.

A few minutes later, Neal used “Smokin’ Joe” again:
Q: Didn’t I ask you about every conversation you had with every person at the scene of that accident?
A: Yes, and I believe I told you I only talked to two people.
Q: Did you —
A: Smokin’ Joe — or —
After this second use, the superior court waited until the jury was excused before admonishing Neal and Carlile. HDI did not object to this course of action, and there was no third use of Seurer’s radio call sign.

Carlile moved for a directed verdict after HDI rested its case, but that motion was denied. After the close of all the evidence, the parties agreed to a special verdict form asking whether either Carlile or Eggor was negligent and whether that negligence caused HDI’s injury. The form did not distinguish between common-law negligence and negligence per se.

HDI sought a negligence per se jury instruction based on section 392.22 and Neal’s failure to use flashers or deploy triangles. As part of its proposed instruction, HDI requested that the superior court define “necessary traffic stop” in the regulation as “a stop that is caused by (1) an official traffic control device, (2) an authorized governmental agent, (3) an authorized flagger, or (4) to avoid other traffic on the roadway.” This grammatically challenged definition would have excluded chain-up stops from being a necessary traffic stop, preventing the jury from finding that Neal had complied with the regulation.

Carlile opposed the instruction, arguing that negligence per se did not apply in this case. Carlile also opposed defining necessary traffic stop in section 392.22, arguing alternatively that chain-up stops could qualify as necessary traffic stops or that the jury did not need the term defined for them.

*3 The superior court determined that negligence per se could apply and decided to give a negligence per se instruction. But the court did not define necessary traffic stop for the jury, reasoning:
I’m not going to tell them how to interpret that. The [federal regulation] doesn’t tell them. I’m going to leave that in the jury’s good hands. The cases [offered by HDI in support of its definition] were state cases, if I recall correctly. They were interesting, but I feel without a federal definition I’m not going to go that far in the instruction.
The final jury instruction provided the text of section 392.22(a)-(b)(1)4 and an instruction that the jury must find negligence if Neal violated the regulation unless the violation was excused, along with six ways a regulation violation would be excused. Relevant to this appeal, one excuse the jury instruction listed was that Carlile’s violation would be excused if the law’s meaning was obscure or unreasonable and if Carlile acted with reasonable care in attempting to obey it. The final instruction did not define necessary traffic stop or any other portion of the regulation.5

The jury deliberated and quickly requested the complete text of section 392.22. After discussion with the parties, the superior court declined to provide the complete text or any additional explanation. The jury continued deliberations and returned a verdict for Carlile. The special verdict form indicated that Carlile was not negligent; accordingly the rest of the answers were blank.

*4 HDI moved for a new trial, challenging the verdict as against the weight of evidence. HDI argued that no excuses applied and that the jury should have found Neal negligent per se for failing to deploy triangles or activate flashers. HDI also argued that the weight of the evidence showed Neal was common-law negligent. The superior court denied HDI’s motion and entered judgment for Carlile.

HDI appeals the superior court’s handling of Neal’s “Smokin’ Joe” comments, negligence per se jury instructions, and denial of a new trial. Carlile cross-appeals the superior court’s use of a negligence per se instruction and denial of Carlile’s directed verdict motion.

III. STANDARDS OF REVIEW
We generally review the superior court’s handling of prejudicial witness remarks for an abuse of discretion.6 But “[t]he failure to object to prejudicial remarks and to move the court for a mistrial or for an admonition to the jury constitutes a waiver of the objection.”7
Jury instructions involve questions of law to which we apply our independent judgment. When reviewing a trial court’s denial of a proposed instruction, our inquiry focuses upon whether the instructions given, when read as a whole, adequately inform the jury of the relevant law. An error in jury instructions is grounds for reversal only if it caused prejudice. In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and determine whether the error probably affected their judgment.[8]

“[W]hether to grant or refuse a new trial ‘rests in the sound discretion of the trial court.’ ”9
In reviewing the substance of a trial court’s order denying a new trial, we view the evidence in the light most favorable to the non-moving party, and “will … reverse a decision to deny a new trial [only] if the evidence supporting the verdict was so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust.” [10]

IV. DISCUSSION

A. HDI Waived Objection To Neal’s Potentially Prejudicial Remarks.
HDI argues for reversal because Neal twice referred to Seurer as “Smokin’ Joe” in violation of the superior court’s pretrial order. HDI contends that Neal intentionally made these comments to cast Seurer as a reckless driver and support Carlile’s comparative negligence argument.

HDI waived this argument by failing to request any contemporaneous action by the superior court.11 After the first use of “Smokin’ Joe,” the superior court noted: “We’ll let it go this time, but next time, if he says it again, I’ll say something.” HDI did not object to this course of action. After the second use, the court waited until the jury was excused before admonishing Neal and Carlile once more. This was a reasonable course of action: “The trial [court], in [its] discretion, is best able to determine whether there was any intentional misconduct … and to evaluate the probable impact of [such misconduct] upon the jury.”12 Here there was concern that admonishing Neal and Carlile in front of the jury could bring the issue to the jury’s attention when it may have been previously unnoticed.13 The superior court decided to admonish Neal outside of the jury’s presence before using harsher remedies. HDI did not object to this course of action, and there was no third use of “Smokin’ Joe.” HDI cannot now complain of the superior court’s handling of the remarks after failing to object at trial.14

B. Any Possible Error In Failing To Define “Necessary Traffic Stop” Was Harmless.
*5 HDI argues that the superior court erred by refusing to define “necessary traffic stop” in connection with its negligence per se instruction. HDI argues that section 392.22 required Neal to deploy triangles if he was not making a necessary traffic stop, and that, without a clarifying definition, the jury could have thought he was making a necessary traffic stop based on an erroneous interpretation of the law. HDI argues that this “prejudicial ambiguity” in the instructions requires reversal for a new trial.

Some authority supports HDI’s position that a definition was required in this case. “[A] plaintiff is generally entitled to a jury instruction ‘consonant with the theory of [the] case’ if the evidence supports the plaintiff’s theory.”15 And the failure to give such an instruction is reversible error when the jury instructions as a whole allow the verdict to rest on an erroneous legal theory.16

We first announced this rule in McKee v. State, when we reversed a conviction due to the superior court’s failure to define an elemental term.17 In that case McKee was charged with possessing a “concealed” weapon for carrying a knife.18 McKee testified that he had the knife clipped onto his coat such that it was partially in view and requested a jury instruction stating that “concealed” meant “completely hidden, secreted, or screened from you.”19 The superior court refused to give this, or any, instruction defining “concealed about the person,” and McKee was convicted.20 We reversed, first holding that “a weapon is concealed if it is hidden from ordinary observation.”21 We then held that a definition was necessary because “the jury might have believed McKee’s version of the facts, yet have concluded erroneously that he could be found guilty under the terms of the statute if any portion of the knife was hidden from view.”22 We explicitly rejected the argument, seemingly adopted by the superior court here and urged on us by Carlile, that the court did not need to give an instruction because the jurors could determine the disputed term’s meaning themselves.23 Instead we announced the rule that “where [a term] is susceptible of differing interpretations, only one of which is a proper statement of the law, an instruction must be given.”24

The same rule conceivably could govern this appeal. The term “necessary traffic stop” first appeared in federal regulations in 1939, without any definition.25 The term has not since been defined by the United States Supreme Court or any federal agency. The term does not appear in any other regulations from the same period where the context is more clear. It is not commonly used in everyday language. And the evidence at trial established that Alaska’s trucking industry has given the term a meaning almost completely opposite what HDI proposed at trial. Given these facts, the term necessary traffic stop is likely “susceptible of differing interpretations.”26

Were we to apply McKee’s rule to this case, we could accordingly conclude that the superior court erred by declining to define necessary traffic stop. But we find it unnecessary to decide whether an instruction was required in this case because, even assuming necessary traffic stop means generally what HDI claims it means,27 no reasonable jury could have found negligence per se on these facts.

*6 The jury was instructed that Carlile was excused from compliance with the regulation if “the meaning of the law was obscure or unreasonable and Carlile acted with reasonable care in attempting to obey it.” The evidence at trial showed without contradiction that drivers, experts, and regulators in Alaska think that reflective triangles are not required when chaining up; even Seurer testified that he did not think he needed to deploy triangles in that situation. HDI does not contest this evidence on appeal, instead conclusorily asserting that the regulation’s meaning “obviously” was not obscure to Carlile because it trained its drivers to follow the regulation. But this conclusion does not follow; if HDI is correct and the regulation does not mean what Carlile thinks, the Alaska trucking industry’s certainty that it is correctly interpreting section 392.22 makes its meaning more obscure, not less. Given this unanimous testimony, no reasonable jury could have found that the meaning of section 392.22 was not obscure or unreasonable and that Carlile acted with reasonable care in obeying the rule as Carlile understood it. And because no reasonable jury could have found that Carlile was not excused, any potential error did not affect the jurors’ verdict.28

HDI argues that we should not look at the evidence of excuse in this case because Carlile had the burden of showing excuse and it did not “argue or present any evidence that its failure to follow the regulation was excused.” It is true that Carlile had the burden of showing excuse29 and that Carlile did not make excuse the focus of its closing argument, choosing instead to argue that there was no violation. But Carlile did present uncontradicted testimony supporting excuse, and the jury was correctly instructed that Carlile was excused if the regulation was obscure and Carlile acted with reasonable care in attempting to obey it. And the jury was clearly interested in section 392.22’s applicability to negligence per se; its first note to the court during deliberations was a request to see the complete text of the regulation. Given these facts, we are not persuaded that Carlile’s failure to argue excuse should determine the harmlessness question. We instead conclude that the error was harmless because the jury should have applied the law of excuse to the uncontroverted testimony in this case and found that Carlile was excused. A reasonable jury following the law as explained in the instructions could not have done otherwise.

C. It Was Not An Abuse Of Discretion To Deny HDI’s Motion For A New Trial.
HDI also argues that the judgment must be reversed because the superior court failed to grant a new trial. HDI asserts that the great weight of evidence required the jury to find negligence per se on this record, either for the failure to deploy triangles or to use flashers.30

Whether to grant or deny a new trial “rests in the sound discretion of the trial court.”31 We will “reverse a decision to deny a new trial [only] if the evidence supporting the verdict was so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust.”32 “If there is an evidentiary basis for the jury’s decision, denial of a new trial must be affirmed.”33 HDI cannot meet this high burden.

*7 First, as to the failure to deploy triangles, we already have concluded that a reasonable jury would have found Carlile’s actions were excused based on the evidence presented at trial. The superior court did not abuse its discretion by refusing a new trial on this point. Second, as to the failure to use flashers, there was ample testimony supporting the jury verdict. Neal testified that he used flashers. Neal testified that Seurer said he saw flashers. A responder from Prudhoe Bay testified that Seurer said he saw lights in the distance and thought they were pickup trucks with their flashers on. Photographs taken at the scene suggested that the flashers were on. This evidence, viewed in the light most favorable to Carlile, was not “so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust.”34

V. CONCLUSION
We AFFIRM the superior court’s entry of final judgment for Carlile. We therefore do not address Carlile’s cross-appeal.

All Citations
— P.3d —-, 2018 WL 4040363

Footnotes

1
Negligence is a tort for which the plaintiff recovers for harm caused by the defendant’s breach of a duty of care to the plaintiff. Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657, 667 (Alaska 2000). In common-law negligence the duty owed is determined by case law, usually as a duty “to act as a reasonable person would under the circumstances.” Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202, 1204 (Alaska 1996). In negligence per se, however, duty and breach are established when the defendant violates a statute or regulation and the defendant’s conduct toward the plaintiff is “within the ambit of the statute or regulation in question.” Cable v. Shefchik, 985 P.2d 474, 477 (Alaska 1999) (quoting Osborne v. Russell, 669 P.2d 550, 554 (Alaska 1983) ).

2
49 C.F.R. § 392.22(a) (2018).

3
Id. § 392.22(b)(1); id. § 393.95(f).

4
Section 392.22 also includes subsection (b)(2), providing rules for special circumstances. The superior court removed this section as inapplicable based on the evidence presented at trial.

5
Jury Instruction 29 read:
The law of the State of Alaska is as follows:
A person driving a commercial motor vehicle, or a company whose business involves the operation of a commercial motor vehicle, upon a highway or vehicular way or area, shall comply with the regulations relating to the operation or driving of commercial motor vehicles, adopted by the United States Department of transportation and contained in 49 C.F.R. Part 392 (Driving of Commercial Motor Vehicles)
….
49 C.F.R. Part 392.22 is as follows:
(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section.
(b) Placement of warning devices — (1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place three bidirectional emergency reflective triangles in the following manner:
….
If you find that Carlile violated this law, then you must find that Carlile was negligent, unless you find that the violation is excused.
The violation is excused if:
….
(6) the meaning of the law was obscure or unreasonable and Carlile acted with reasonable care in attempting to obey it.
If you find that Carlile complied with this law, or that any violation was excused, you may still find that it was negligent if you decide that a reasonable person would have taken precautions in addition to those required by these laws.

6
See Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965).

7
Heacock v. Town, 419 P.2d 622, 623 (Alaska 1966).

8
City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (footnotes and internal quotation marks omitted) (quoting Thompson v. Cooper, 290 P.3d 393, 398–99 (Alaska 2012) ).

9
Hunter v. Philip Morris USA, Inc., 364 P.3d 439, 447 (Alaska 2015) (quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002) ).

10
Id. (footnotes omitted) (first quoting Kava, 48 P.3d at 1173 (Alaska 2002); then citing id.; then quoting Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) ).

11
See Heacock v. Town, 419 P.2d 622, 623 (Alaska 1966) (“The failure to object to prejudicial remarks and to move the court for a mistrial or for an admonition to the jury constitutes a waiver of the objection.”).

12
Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965).

13
Cf. Parish v. State, 477 P.2d 1005, 1011 n.13 (Alaska 1970) (“[T]he observation has been made that attorneys will frequently refrain from asking for a limiting instruction simply because it serves no purpose other than to call attention to the prejudicial evidence.”).

14
See Heacock, 419 P.2d at 623. We may review a waived argument for plain error, which exists if “an obvious mistake has been made which creates a high likelihood that injustice has resulted.” Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). But any supposed mistake here was not “obvious”; as explained above, admonition outside of the jury’s presence was a reasonable course of action. We therefore decline to find that the superior court’s chosen actions were plain error.

15
Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 764 (Alaska 2007) (quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 201 (Alaska 1980) ).

16
See Thompson v. Cooper, 290 P.3d 393, 401 (Alaska 2012); Parnell, 174 P.3d at 764-65; McKee v. State, 488 P.2d 1039, 1043 (Alaska 1971).

17
488 P.2d at 1042-43.

18
Id. at 1042.

19
Id.

20
Id. at 1040, 1042.

21
Id. at 1042.

22
Id. at 1042-43, 1043 n.26.

23
Id.

24
Id.

25
Motor Carrier Safety Regulations Revised, 4 Fed. Reg. 2,294, 2,299 (June 7, 1939).

26
See McKee, 488 P.2d at 1043.

27
We express no opinion whether a chain-up stop is a necessary traffic stop under the regulation. But we do note that HDI’s proposed definition of necessary traffic stop was clearly underinclusive; at minimum a necessary traffic stop must account for traffic controls and exigencies involving other vehicles, law enforcement, animals crossing the road, and other similarly required stops.

28
See City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (“In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and ‘determine whether the error probably affected their judgment.’ ” (quoting Thompson v. Cooper, 290 P.3d 393, 399 (Alaska 2012) ) ); see also Patterson v. Cox, 323 P.3d 1118, 1121 (Alaska 2014) (“Of course, if no reasonable jury could have found for [the plaintiff] on his products liability claim, the superior court’s omission would be harmless.”).

29
See Ferrell v. Baxter, 484 P.2d 250, 266 (Alaska 1971) (“It is fair to put the burden of proving excuse upon the one who has violated the law in the first place.”).

30
HDI does not appeal the superior court’s denial of a new trial on the issue of common-law negligence.

31
Hunter v. Philip Morris USA, Inc., 364 P.3d 439, 447 (Alaska 2015) (quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002) ).

32
Id. (quoting Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) ).

33
Kocurek v. Wagner, 390 P.3d 1144, 1151 (Alaska 2017) (quoting Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982) ).

34
See Hunter, 364 P.3d at 447 (quoting Hogg, 134 P.3d at 352).

2018 WL 3625434

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeals of Texas, Texarkana.
WILCO FARMERS d/b/a Wilco Farm Stores, Appellant
v.
Edna CARTER, Individually and on behalf of Michael Carter, Deceased; Christopher Carter; Tammy Turnbow; and Teresa Miller, Appellees
No. 06-18-00018-CV
|
Date Submitted: July 6, 2018
|
Date Decided: July 31, 2018
|
Rehearing Denied August 14, 2018
On Appeal from the 62nd District Court, Hopkins County, Texas, Trial Court No. CV43343
Attorneys and Law Firms
Jennifer Mathis, Christopher T. Carver, Lubbock, Nolan Smith, Gregory D. Smith, Midland, for Appellees.
Brittany L. Davis, Amanda N. Harvey, Dava Greenberg-Spindler, Dallas, for Appellant.
Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION
Opinion by Justice Moseley
*1 In February 2017, Wilco Farmers d/b/a Wilco Farm Stores (Wilco), an Oregon corporation,1 placed an order for cattle gates and other goods from Priefert Mfg. Co., Inc. (Priefert), a Texas-based manufacturer. Priefert Logistics, LP (Priefert),2 leased a truck from Aulsbrook & Son Truck Lines LLC (Aulsbrook), a Texas company, to take the fulfilled order from Priefert’s facilities in Texas to Wilco’s facility in Mount Angel, Oregon. Michael Carter, an employee of Aulsbrook, drove the truck to Oregon. While the cargo was being unloaded in Mount Angel, Carter sustained fatal injuries when some of the cargo fell on him. Consequently, Carter’s widow and children filed this lawsuit in Hopkins County, Texas, against Wilco, Priefert, and Aulsbrook, alleging that their negligence caused Carter’s injuries and death. In response, Wilco filed a special appearance and asserted that it was not subject to personal jurisdiction in Texas. The trial court denied the special appearance.

In this interlocutory appeal, Wilco contends that the trial court erred in denying its special appearance because its contacts with Texas are not sufficient to confer either general or specific personal jurisdiction over Wilco in Texas.

I. Background
Wilco is an Oregon corporation with its principal place of business in Mount Angel, Oregon. It has eighteen farm supply retail stores in Oregon and Washington. Wilco has had a business relationship with Priefert for approximately twenty years, in which Wilco sells cattle squeeze chutes and corral panels supplied by Priefert. The relationship began when a sales representative of Priefert contacted Wilco by telephone and convinced Wilco to stock Priefert’s products. Since that time, a Priefert salesperson came to Wilco stores in Oregon and Washington quarterly to make sales calls, to train Wilco’s salespeople on the use of Priefert’s products, and to instruct how to properly unload its merchandise upon delivery. In addition, almost every year Wilco sends certain of its employees to Priefert’s facilities in Texas for additional training in the manufacture and use of Priefert’s products. During these trips, no purchases are made by Wilco, and Priefert does not train Wilco employees on unloading its merchandise. Upon selling enough of Priefert’s products, Wilco places an order by notification to Priefert, whereupon Priefert delivers the products from Texas to Oregon. Priefert determines the time and mode of delivery of the products. Priefert includes a brochure on how to unload its merchandise with the packing slip accompanying the delivered merchandise.

*2 Wilco only advertises in Oregon and Washington. Although it advertises its merchandise (including some of the merchandise supplied by Priefert) on its website, its merchandise may only be purchased through one of its retail outlets. Wilco does not have any place of business in Texas, is not registered to do business in Texas, and does not have a bank account in Texas. None of its employees, officers, or directors reside in Texas. It does not own property or pay taxes in Texas. Priefert is Wilco’s only Texas supplier.

In February 2017, Wilco sent a purchase order to Priefert for gates and other items. Pursuant to a contractor lease agreement with Priefert, Aulsbrook supplied the truck and driver, Carter, used to deliver the shipment to Wilco in Oregon. While the cargo was being unloaded in Mount Angel, Carter sustained fatal injuries when some of the cargo fell on him.

Appellees filed this suit in Texas against Priefert, Aulsbrook, and Wilco, alleging that the defendant’s negligence caused Carter’s death. Its claim against Wilco includes allegations that Wilco was negligent in failing to unload the truck in a safe and secure manner, in failing to train its employees on how to safely unload cargo, and in failing to supervise its employees.

II. Standard of Review and In Personam Jurisdiction
“Whether a trial court has personal jurisdiction over a nonresident defendant is a question of law that we review de novo.” Old Republic Nat’l Title Ins. Co. v. Bell, No. 17-0245, ––– S.W.3d ––––, ––––, 2018 WL 2449360, at *3 (Tex. June 1, 2018) (citing Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013) ). When no findings of fact and conclusions of law are made by the trial court, “we infer ‘all facts necessary to support the judgment and supported by the evidence.’ ” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007) (quoting BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002) ).

When there is a challenge to the trial court’s in personam, or personal, jurisdiction, the plaintiff and the defendant have shifting burdens of proof. Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653, 658 (Tex. 2010). It is the plaintiff’s initial burden to plead sufficient allegations to invoke jurisdiction under the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574. The nonresident defendant must then negate all bases of jurisdiction in the plaintiff’s allegations. Id. Jurisdiction can be negated on either a factual or legal basis. Kelly, 301 S.W.3d at 659. The defendant can factually negate the plaintiff’s allegations by presenting evidence that it has no contacts with Texas. Id. The plaintiff must then respond with evidence affirming its jurisdictional allegations, or risk dismissal of its lawsuit by failing to do so. Id. The defendant can legally negate the plaintiff’s allegation by showing that even if the allegations are true, either (1) the evidence is legally insufficient to establish jurisdiction; (2) the defendant’s contacts with Texas do not amount to purposeful availment; (3) for specific jurisdiction, that the plaintiff’s claims do not arise from the defendant’s contacts; or (4) that the exercise of jurisdiction would offend the traditional notions of fair play and substantial justice. Id.

“Texas courts may assert in personam jurisdiction over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees.” Moki Mac, 221 S.W.3d at 574 (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990) ). The Texas long-arm statute describes what constitutes doing business in the state, “[i]n addition to other acts.” Id. (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 17.042). The only subsection pertinent to this appeal provides that a non-resident does business in Texas if it “(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state.”3 TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(1) (West 2015). Because of the long-arm statute’s broad language, it “reach[es] as far as the federal constitutional requirements of due process will allow.” Moki Mac, 221 S.W.3d at 575 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991) ).

*3 The exercise of personal jurisdiction over a non-resident defendant is proper when it “has established minimum contacts with the forum state, and the exercise of jurisdiction comports with ‘traditional notions of fair play and substantial justice.’ ” Id. (quoting Int’l Shoe Co. v. Washington, Office of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ) ). The non-resident defendant establishes minimum contacts when it “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (quoting Int’l Shoe Co., 326 U.S. at 319, 66 S.Ct. 154) ). These contacts “must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court.” Old Republic, ––– S.W.3d. at ––––, 2018 WL 2449360, at *3 (quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009) (citations omitted) ). In determining purposeful availment, we consider three factors:
First, only the defendant’s contacts with the forum are relevant, not the unilateral activity of another party or a third person. Second, the contacts relied upon must be purposeful rather than random, fortuitous, or attenuated…. Finally, the defendant must seek some benefit, advantage or profit by availing itself of the jurisdiction.
Id. (quoting Moncrief Oil Int’l Inc., 414 S.W.3d at 151) (quoting Retamco Operating, Inc., 278 S.W.3d at 338–39).

These contacts may result in two types of personal jurisdiction over the non-resident defendant. Moki Mac, 221 S.W.3d at 575 (citing BMC Software, 83 S.W.3d at 795–96). General jurisdiction arises when the defendant’s contacts with the state are continuous and systematic, whether or not the cause of action arises from those contacts. Id. (citing BMC Software, 83 S.W.3d at 796). “Specific jurisdiction is established if the defendant’s alleged liability ‘aris[es] out of or [is] related to’ an activity conducted within the forum.” Id. at 576 (quoting Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). Consequently, when considering specific jurisdiction, our minimum contacts analysis is focused “on the ‘relationship among the defendant, the forum[,] and the litigation.’ ” Id. at 575–76 (quoting Guardian Royal, 815 S.W.2d at 228 (citations omitted) ).

The Texas Supreme Court has explained, “The ‘arise from or relate to’ requirement lies at the heart of specific jurisdiction by defining the required nexus between the nonresident defendant, the litigation, and the forum.” Id. at 579. In Texas, the “arise from or related to” requirement is satisfied only when there is a substantial connection between the non-resident defendant’s forum contacts and the operative facts of the litigation. Old Republic, ––– S.W.3d. at ––––, 2018 WL 2449360, at *4; Moki Mac, 221 S.W.3d at 585.

III. Analysis

A. Specific Jurisdiction
In support of general and specific jurisdiction over Wilco, Appellees alleged the following relevant facts for which there is some evidence in the record:4
a) Defendants Wilco and Priefert have a mutually-beneficial 20-year business relationship wherein Defendant Priefert is a dealer of farm equipment for Defendant Wilco, which sells Priefert’s goods in Oregon and Washington;
b) Defendants Wilco and Priefert exchange hundreds of e-mails and phone calls each year;
c) Defendant Wilco makes hundreds of purchases (and these purchases involve the forming of hundreds of contracts) from Defendant Priefert each year;
….
e) On this specific occasion, Defendants Wilco and Priefert entered into a contract for the purchase of farm equipment that required … transport of goods from Texas to Oregon;
f) On this specific occasion, Defendant Wilco initiated contact with Defendant Priefert by submitting a purchase order;
*4 g) Defendant Wilco sends its key personnel to Texas nearly every year for “Priefertization” training;
In their brief, Appellees flesh out the evidence supporting these allegations and argue that Wilco’s contacts with Texas were purposeful and that it sought to profit and benefit by availing itself of this jurisdiction. However, “purposeful availment alone will not support an exercise of specific jurisdiction.” Moki Mac, 221 S.W.3d at 579. In addition to purposeful availment, “[f]or a Texas court to exercise specific jurisdiction over a defendant, the defendant’s purposeful contacts must be substantially connected to the operative facts of the litigation or form the basis of the cause of action.” Old Republic, ––– S.W.3d. at ––––, 2018 WL 2449360, at *4 (citing Moki Mac, 221 S.W.3d at 585; Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 795 (Tex. 2005) ). Even assuming, but not deciding, that Wilco’s contacts with Texas support a finding of purposeful availment, these contacts are not substantially connected to the operative facts of the Appellees’ claims against Wilco.

In Moki Mac, thirteen-year-old Andy Druggs died on a river rafting trip in Arizona with Moki Mac River Expeditions, a Utah-based river rafting outfitter. Andy’s parents (the Druggs) learned about Moki Mac’s excursions from a fellow Texas resident to whom Moki Mac had sent its brochures. The Druggs reviewed the brochures and Moki Mac’s website, and after corresponding with Moki Mac’s representatives from their home in Texas, decided to send Andy on the rafting trip. After an application and payment were submitted, Moki Mac sent the Druggs an acknowledgment-of-risk and release form, which both Andy and his mother signed and returned. On the second day of the rafting trip, Andy sustained fatal injuries when he fell backwards fifty-five feet while attempting to traverse a very narrow, boulder-blocked ledge. Moki Mac, 221 S.W.3d at 573.

The Druggs filed suit in Texas alleging that Moki Mac’s negligence caused Andy’s death and alleging intentional and negligent misrepresentation. After the trial court denied Moki Mac’s special appearance, the court of appeals affirmed the trial court based on specific jurisdiction and held that the misrepresentation claims arose from and related to Moki Mac’s purposeful contacts with Texas. Id.

The Texas Supreme Court agreed with the court of appeals that Moki Mac’s numerous contacts5 with Texas satisfied that purposeful availment requirement of specific jurisdiction. Id. at 579. However, the court held that to satisfy the requirement that the claim “arise from or related to” the defendant’s purposeful contacts, “there must be a substantial connection between those contacts and the operative facts of the litigation.” Id. at 585 (citing Guardian Royal, 815 S.W.2d at 229–33).

*5 The Druggs alleged that Moki Mac had made direct solicitation to them and that they depended on Moki Mac’s assurances of the safety of the trip made in its brochures, including that it would provide appropriate equipment and skilled guides. The court accepted as true that the Druggs would not have sent Andy on the trip were it not for Moki Mac’s representations about safety. However, the court noted that “the operative facts of the Druggs’ suit concern[ed] principally the guides’ conduct of the hiking expedition and whether they exercised reasonable care in supervising Andy” and that the focus of the trial and most of the evidence would be “[t]he events on the trail and the guides’ supervision.” Id. Consequently, the court held, “[T]he injuries for which the Druggs seek recovery are based on Andy’s death on the hiking trail in Arizona, and the relationship between the operative facts of the litigation and Moki Mac’s promotional activities in Texas are simply too attenuated to satisfy specific jurisdiction’s due-process concerns.” Id. at 588.

Appellees argue that because of Wilco’s longstanding relationship with Priefert, the allegations of unsafe loading/unloading, the allegations of inadequate safety training lodged against both Wilco and Priefert, and because Carter allegedly died “performing” a Texas contract, there is a substantial connection to its claim’s operative facts.6 First, in considering specific jurisdiction, we are only concerned with the non-resident’s contacts with the forum and the relationship between those contacts and the litigation. See id. at 575–76. Therefore, Appellees’ allegations of unsafe loading and inadequate safety training lodged against Priefert are not relevant considerations. In addition, even assuming the contract between Wilco and Priefert required Priefert to deliver the goods to Oregon, the undisputed testimony was that the manner and means of delivering the goods was solely in the control of Priefert. Further, the evidence showed that Priefert chose to deliver the goods by entering into a contract with Aulsbrook to perform the task and that Aulsbrook supplied Carter to drive the truck. Thus, it appears that the contract that Carter was performing at the time of the incident was between Priefert and Aulsbrook. The unilateral actions of another party, or of a third person, are not relevant considerations when analyzing specific jurisdiction. See Old Republic, ––– S.W.3d. at ––––, 2018 WL 2449360, at *3.

*6 As in Moki Mac, the operative facts of the Appellees’ claims against Wilco in this case concern principally whether Wilco’s employees exercised reasonable care in unloading the truck and whether Wilco exercised reasonable care in training and supervising its employees, all of which took place in Oregon. Likewise, the focus of the trial and evidence concerning Appellees’ claims against Wilco will be the events surrounding the unloading of the truck and Wilco’s supervision of its employees. Wilco’s contacts with Texas, consisting of its longstanding buyer-supplier relationship with Priefert and the mutual efforts of these parties to maintain and improve their relationship, cannot be said to be substantially connected to the operative facts of Appellees’ claims against Wilco. Even though Wilco had ordered the goods involved in Carter’s injuries from Priefert, this is not the subject matter of the suit and is unrelated to the operative facts of Appellees’ negligence claim against Wilco.7 See Moki Mac, 221 S.W.3d at 585.

Since there is not a substantial connection between Wilco’s purposeful contacts with Texas and the operative facts of Appellees’ claim, we find that the trial court erred in denying Wilco’s special appearance, insofar as the trial court’s order is based on specific jurisdiction.

B. General Jurisdiction
A non-resident defendant is subject to a court’s general jurisdiction when its “affiliations with the state are so continuous and systematic as to render [it] essentially at home in the forum state.” Old Republic, ––– S.W.3d. at ––––, 2018 WL 2449360, at *8 (quoting TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016) (quoting Daimler v. Bauman, 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) ) ). General jurisdiction “requires ‘substantial activities within the forum’ and presents ‘a more demanding minimum contacts analysis than for specific jurisdiction.’ ” TV Azteca v. Ruiz, 490 S.W.3d 29, 37 (Tex. 2016) (quoting BMC Software, 83 S.W.3d at 797). Although a non-resident’s contacts may be continuous and systematic, they will not confer general jurisdiction unless they “rise to the level of rendering a defendant ‘essentially at home in the forum [s]tate.’ ” Old Republic, ––– S.W.3d. at ––––, 2018 WL 2449360, at *8 (quoting Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016) (quoting Daimler, 571 U.S. at 134, 134 S.Ct. 746) ).

Wilco does not have a place of business in Texas, is not registered to do business in Texas, and does not have a bank account in Texas. None of its employees, officers, or directors reside in Texas. It does not own property or pay taxes in Texas. Its only contacts with Texas appears to be limited to those contacts resulting from its buyer/supplier relationship with Priefert. These contacts are insufficient to confer a Texas court general jurisdiction over Wilco. See id. at ––––, 2018 WL 2449360, at *8–9. Consequently, we find that the trial court erred in denying Wilco’s special appearance. We sustain Wilco’s issue on appeal.

For the reasons stated, we reverse the trial court’s order denying Wilco’s special appearance and dismiss Appellees’ cause of action against Wilco.

All Citations
— S.W.3d —-, 2018 WL 3625434

Footnotes

1
For reasons not mentioned, none of the pleadings in the case of either the plaintiff or the defendants seem to indicate the structure of this entity (i.e., whether it is a partnership, a limited liability company, a sole proprietorship, or a corporation). The nature of the structure does not impact the decision in this case.

2
The parties refer to both Priefert and Priefert Logistics as Priefert. We will do the same.

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

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

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

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

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