### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00382- CV

SprayFoam P olym ers.c om , LLC, App ellant

v. F rank Lu ciano and Helene Luciano, App ellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 5-0 0293 0, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an appeal from the trial court’s denial of the specia l appea ranc e filed by appellant and defe ndant below, Sp ra y Fo amPoly mers.com, L L C, in a lawsuit filed by appellee s Fr ank and Helene L uciano rela ted to t h e i n s t allation of Thermose al 500, an insulation product produce d by Spray

Foam, in the L ucianos’ new house. On appea l, Spray Foa m asser ts that (1) the trial
court err ed in deny ing its specia l appea ranc e beca

use the L ucianos did not plead fac tual alleg ations

or provide evidenc e that could establish g ener al or specific juris d i ct ion over Spray Foam; (2) the exercise of jurisdiction over Spray Foam would be unreasonable , would offe nd traditional notions of fair play and substantial justice, and would be inconsistent with the require ments of due proce ss; and (3) the trial court abused its discretion in admitting the L ucianos’ evidenc e put forth to establish jurisdiction. For the following rea sons, we will reve rse the trial court’s order deny ing Spray Foam’s specia l appea

ranc e.Stand ard of Review
A trial court should resolve a party ’s specia l appea ranc e based on the pleading s, any stipulations betwee n the parties, aff idavits and attachme nts filed by the parties, rele vant discovery , and any oral testimony put forth befor e the court. Tex. R. Civ. P. 120a(3)

. W h et h er a trial court
proper ly decide d whether it could exercise jurisdiction over a nonresident defe ndant prese nts a question of law that we revie w de novo. Searcy v. Parex Res., Inc. , 496 S.W .3d 58, 66 (Tex. 2016);
American Type Culture Collection, Inc. v. Coleman , 83 S.W .3d 801, 805-06 (Tex. 2002). I n making its decision, the trial court often m u st resolve questions of fac t, and if, as here , it does not issue finding s of fac t, we presume the court resolved all fac tual disputes in favor of its decision. Coleman , 83 S.W .3d at 806. The plaintiff c arr ies an initial burden of pleading alleg ations sufficient to a llow the trial court to exercise persona l jurisdiction over the nonresident defe ndant. Searcy , 496 S.W .3d
at 66; Ke l l

y v. Gene ral Interior Constr., Inc. , 301 S.W .3d 653, 658 (Tex. 2010). I n its specia l
appea ranc e, the defe ndant has the burden of neg ating all potential bases for persona l jurisdiction as set out in the plaintiff’s plea dings. Searcy , 496 S.W .3d at 66; Kelly , 301 S.W .3d at 658.

Texas cour t s have persona l jurisdiction over a nonresident defe ndant if Texas’s long- arm statute g rants jurisdiction and the exercise of jurisdiction comports with fede ral and state constitutional gua

rante es of due proce ss. Searcy , 496 S.W .3d at 66. “The Texas long a rm statute provides for persona l jurisdiction that extends to the limit s of the United States Constit ution, and so fede ral due proce ss require ments shape the contours of Texas courts’ jurisdictional rea ch.” Id. The exercise of

jurisdiction over a n o n r e s id e n t d e f e n d a n t c o mp o r ts w it h fede ral due-pr ocess require ments if the nonresident has established “minimum contac ts” with Texas and if the exercise of jurisdiction

2“does not offe nd ‘traditional notions of fair play and substantial justice.’” M & F W orldwide Corp.

v. Pepsi-Cola Metro. Bott l i n g C o
. , 512 S.W .3d 878, 885 (Tex. 2017) (quoting W alden v. Fiore , 1 3 4 S

. Ct. 1115, 1121 (2014))

. A nonresident defe ndant must have purposef ully availed itself o f “the privilege of conducting activities within Texas, thus invoking the ben ef its and protections of

our laws,” and i t s ac t ivities, “whe ther they consist of direc t acts within Texas or conduct outside Texas, must j ustify

a conc lusion that the de fenda nt c ould rea sonably

anticipate be ing c alled into a
Texas court.” Coleman , 83 S.W .3d at 806.

I n looking to “purpo s ef

u l availment,” we consider only the nonresident’ s contac ts with the forum, not the unilatera l activity of another ; its contac ts with Texas must be purposef ul and
not random, fortuitous, or attenuate d; and it must have soug ht some benef it, advanta g e, or profit by availing itself of Texas an d t h e b en efits and protec tions of Texas’s laws. Moki Mac River Expe ditions v. Drugg , 221 S.W .3d 569, 575 (Tex. 2007). “[A] nonresident may purposef ully avoid

a particula

r jurisdiction by structuring its transac tions so as neither to pr ofit from the forum’s laws

nor be subject to its jurisdiction.” Michiana Easy Livin’ Country, I nc. v. Holten , 168 S.W .3d 777,
785 (Te x . 2 0 0 5 ); s ee also Coleman , 83 S.W .3d at 808 (explaining that leg al fiction of implied
consent to jurisdiction no longe r applies when nonresident purposef ully structure s transac tions to avoid bene fits and protec tions of forum’s laws)

.

Minimum contac ts with the forum s t at e may g ive rise to either g ener al or specific jurisdiction. TV Azteca v. Ruiz , 490 S.W .3d 29, 37 (Tex

. 2016); Coleman , 83 S.W .3d at 806.
Gene ral j u risdiction require s the nonresident defe ndant’s contac ts with Texas to have been “so continuous and sy stematic as to rende r it essentially at h o m e in the forum State.” Daimler AG

3v. Bauman , 134 S. Ct. 746, 761 (2014) (cle aned up). Specific jurisdiction may be found if there is

“an aff iliation betwee n the forum and the underly i n g controve rsy , principally , an activity or an

occur renc e that takes place in the forum State.” Bristol-Myers Squibb Co. v. Superior Court of Cal. , 137 S. Ct. 1773, 1781 (2017). Thus, to exercise specific jurisdiction over a nonresident defe ndant, the defe ndant’s contac ts with Texas must be purposef ul, and the cause of action must arise from or rela te to those contac ts. Coleman , 83 S.W .3d at 806.
Analysis Wit h t h at framework in mind, we now turn to whether Spray Foam neg ated all possible g rounds for jurisdiction as alleg ed in the L ucianos’ pleading s. The L ucianos made the following alleg ations rel ev ant to jurisdiction: “the events g iving rise to this lawsuit” and their associate d injuries occur

red in Texas; Spray Fo am “purpose fully availed itself of the privileg e of conducting activities in the state of Texas and established minimum contac ts sufficie nt to confe r jurisdiction” over Spra

y Foa m, a nd the exercise of jurisdiction ove r Spray Foam would not “offe nd traditional notions of fai r p l ay and substantial justice and is consistent with the constitutional require ments of due p r o c e s s ” ; a n d Sp r a y F o a m “eng ag ed in activities constituting business in the state of Texas as provided by Section 17.042 of the Texas Civil Practice and Remedies C o d e, in that [S pray Foa m] committed a tort in whole or in par t in Tex as.” Spray Foam responde d with its specia l appea ranc e, acc ompanied by an aff idavit of Richard Ettinge r, Spray

Foam’s g ener al manag er. I n his aff idavit, Ettinge r aver

red that: Spray

Foam is a limit ed li ability company formed under the laws of Connecticut; its principal office and plac e of business is in Connecticut; its sole office has alway s been in Connecticut; Spray Foam has never
4soug ht a

uthority to do business in T exas a nd has no ag ent for se rvice in Texas; S pray Foa m has no employ ees in T exas, ha s never held meeting s or car ried on internal a ffa irs in Texas, and has neve r had a b an k account or lease d or owned rea l proper ty in Texas; order s are submitt ed to it in Connecticut and are approve d, proce ssed, and shipped from th ere ; order s are made by sending
pay ment to Spr ay Fo am ’s Connecticut addre ss, and title for the product transfe rs in Connecticut; Spray Foam has never rec eived a pay ment in Texas; it has never adver tised in Texas publications or made unsolicited mailings in Texas; it does not have a Texas phone number; no S p ra y Fo am employ ee had visited Texas in the last five y ear s; at the rele v an t t i m e, Preston Nix was its “indepe ndent contra ctor sales repr esenta tive” in Texas; Nix was also an independe nt repr esenta tive for other companies; Spray Foa m had n o control over or involvement with the opera tion of Nix ’s business; Nix did not have the authority to en t er i n t o contra cts on Spray Foam’s behalf

; at the rele vant time, Spray

Foam had a contra ct with a “Colorado third-par ty logistics company ” for
“ou tsourced logistics in Texas”; and the contra cts with Nix and the logistics company wer e both signe d in Connecticut.

I n response to Spra

y Foam’s specia l a

ppear ance , the L ucianos provide d an aff idavit by their attorney , Dawn Smit h. Smit h attache d the following as exhibi ts: a “scr eenshot” from 1
Preston Nix ’s L inkedI n profile, in which he held himself out as Spray Foam’s “Southwest S al es 2

“A ‘scr eenshot’ is a rec orded imag e of the visible items display ed on a computer monitor.” 1 TrueBeginnings, LLC v. Spark Network Servs., Inc. , 631 F. Supp. 2d 849, 851 n.1 (N.D. Tex. 2009); see Burgess v. State , 742 S.E.2d 464, 823 n.2 (Ga

. 2013). I n t h i s p roceeding , the scre enshots in question wer e asser

ted to be various webpa g es as they appea red when Smit h was doing her rese arc h into the fac ts of the ca se. L inkedI n.com is a website that states that it is “the world’s larg est profe ssional ne twork” 2 and on which members post profiles descr ibing their profe ssional qualifica tions and experience

. See about.linkedin.com (last visited Fe b. 7, 2018). 5Manag er” ; a scre enshot alleg edly from Spray Foam’s “loca tions” web pag e as of Aug ust 2015, which
states t hat t he company had a “Gr and P rairie TX Distribution Center” ; a scre enshot showing that 3
the web pag e “spra

y foampoly

mers.com” was reg istered by Richard Ettinge r; a scre enshot of Nix ’s
pag e on the Wy lie Texas Sports Hall of Honor website that includes his biogr aphy , which stated he

was “President of Sales for Spray foam Poly mers”; a listi ng of attendee s at t h e 2 0 13 Spray Poly uretha ne Foam Alliance convention, showing that Nix , Ettinge r, and two other attendee s wer e aff iliated with “Spray Foam Poly mers, L L C”; a Fe bruar

y 2015 letter to Ettinge r from the L ucianos’ former attorney stating that “[y ]our manufa cture r’s repr esenta tive, Preston Nix ,” had come t o t he home in October 2014 to assess the situation; scre enshots from the web pag es of the Texas company hired by the L ucianos t o i nstall the Thermose al 500 product, which show an aff iliation with Spray Foam and a link to the Thermose al 500 product cata log; the invoice for the installation of the product; and an email from that installation company at t ac hing the “spec sheets” for Thermose al 500, which state that Thermose al 500 is made by S p ra y Fo am and that if “installed proper ly by a Spray Foam Poly

mers authorized repr esenta tive who has completed all training offe red by SFP, SFP

war rant s that the product will meet all product specific ations outlined in this specific ation document.” Spray

Foam objected to the aff

idavit and exhibi ts on g rounds of hear say , lack of persona l knowledg e, and lack of authentica tion, and the trial court overr uled most of Spray

Foam’s objections, admitting into evidenc e the e x hibits and most of S mith’s averr ments.

The scre enshot was obtained from an internet arc hival service , Smit h explained, beca use 3 at some point afte r Spray

Foam w as serve d with c itation, the website was chang ed to show that the Gra nd Prairie distribution center belong s to “Ther

moseal L L C.” 6Evidentiary Rulings
On appea l, Spray

Foa m complains of the trial court’s overr uling of its objections, and

we a g ree that on this recor d, statements in Nix ’s per sonal L inkedI n pag e and his biogr aphy on the Wy lie Texas Sports Hall of Honor web pag e ar e inadmissable hear say as to Spray Foam. See Cuffee v. CBL/Ri chland Mall, LP , No. 03-07-00265- CV , 2 0 08 WL 2777904, *3 (Tex. App.—Austin
J uly 17, 2008, no pet.) ( me m. o p . ) ( d is c ussing when third-par ty ’s statement may constitute admission by party -opponent). L ikewise, the list of trade -show attendee s, which shows an aff iliation betwee n Nix and Spray

Foam, is hear say when refe renc ed in an attempt to s how that Nix was more than an independe nt contra ctor and instead was a Spray Foam employ ee. The trial court err ed in a dmitti ng those three items. W e sustain Spray Foam’s third issue in part.
On this rec ord, it does not appea r that the trial court abused its discretion in admitting the rest of Smit h’s aff

idavit and the scre enshot of Spray Foam’s website. Whether it was proper to 4
admit as exhibi ts the scre enshots from the installation company ’s website is a differ ent question, as it cannot be considere d an admission of Spray Foam as a p ar t y -opponent. See, e.g. , BP Expl.
& Prod., Inc. v. Cashman Equip. Corp. , No. H-13-3046, 2016 WL 1387907 , * 1 1 (S.D. Tex. Apr. 8, 2016) (imag e of defe ndant’s website may be considere d admission by party -opponent). Howeve r,

Although Smi th did not provide an aff idavit or ot her evidence from the arch i v al s ervice 4 that she used to find the scre enshot showing that Spray Foam had a Te x as di stribution cente r as of Aug ust 2015, see Marten Transp., Ltd. v. Platt f o rm Adve rt., Inc. , 184 F. Supp. 3d 1006, 1010-11 (D. Kan. 2016) (par

ty proff ere d evidenc e about arc hival service ); T el ewizja Polska USA, Inc. v. EchoStar Satellite Corp. , No

. 02 C 3293, 2004 WL 2367740 (N.D. I ll. Oct. 15, 2004) (same) , Spray Foam never asser

ted that the scre enshot was inacc urate or falsified, see BP Expl. & Prod., Inc. v. C a s hman Equip. Corp. , No. H-13-3046, 2016 WL 1387907, *11 (S.D. Tex. Apr. 8, 2016) (plaintiff soug ht to introduce scr eenshots fr om defe ndants’ we bsites, emphasizing that def endants “have not alleg ed that any of them ar e fa

ke”)

. 7our deter

mination of Spray

Foam’s first issue rela ted to its specia l appea ranc e is not aff

ecte d by the admission of any of those ex h i b i t s . W e there fore will assume that the evidenc e was admitted
proper ly and will proce ed without reaching an ultimate conclusion about whether and when it is
proper to allow an ar chived we b pag e into evidenc e over a hear say objection under the theory that it contains admissions of a party -opponent. See id. 5

Gene ral Jurisdiction The L ucianos as s er t t h at Spray Foa m had maintained a “continuous and sy stematic
prese nce” in Texas sufficie nt to support a finding of g ener al jurisdiction beca use Spray Foam “owns and opera tes a distribution cente r” in Texas; it “ob v i o u s l y . . . employ s residents of Texas at this distribution cente r”; it has trained, cer tified, and contra cted with Texas entities to install Spray Foam products; and it s ent Nix as “a repr esenta tive of [its ] company ” to the L ucianos’ home to evaluate their complaints. Howeve r, as the Supreme Court has explained, g ener al jurisdiction is a demanding

See also Silversun Indus., Inc. v. PPG Indus., Inc. , No. 17 C 4 3 4 6 ,

_ _ F. Supp. 3d __, 5 2017 WL 5127321, *5 n.5 (N.D. I ll. Nov. 6, 2017) (statements on party -opponent’s w eb s i t e were admissible as party admission under fede ral rules of evidenc e, and authenticity of scre enshots “must g ener ally pass muster” under fede ral rules, as if any other kind of evidenc e); Bouton v. Oce an Props., Ltd. , No. 16-CV-80502, 2017 WL 4792488, *2 n.2 (S

. D. Fla. Oct. 23, 2017) (statements by defe ndant on its website wer e admissions by party -opponent); Van W estrienen v. Americontinental Collection Corp. , 94 F. Supp. 2d 1087, 1109 (D. Or . 2000) (plaintiff a verr ed to having persona lly viewed website, and repr esenta tions made by d ef en d an t on website wer e admissions of party

opponent un d er fede ral rules of evidenc e); Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd. , 337 S.W .3d 846, 857 n. 6 (Tex. 2011) (“Where the Fe dera l Rules of Evidence are simil ar, we may look to fede ral case law for g uidance in interpre ting the Texas evidentiar y rules.”) ; Lo n g Is l a n d V

ill. Owners Ass’n v. Berry , No. 13-14-00363- CV, 2016 WL 1072856, *13 (Tex. App.—Corpus Christi Mar. 1 7 , 2016, pet. denied) (mem. op.) (jury ultimately decide s whether evidenc e is what proponent claims it to be, and trial court does not abuse its discretion if proponent sufficie ntly

shows authenticity

of evide nce)

. 8standard and “only a limit ed set of aff iliations with a foru m ” will rende r a nonresident subject to
g ener al jurisdiction there

. Daimler AG , 134 S. Ct. at 760. Fur ther, the Court emphasized that it would be an “exceptional case ” in which a company ’s activities in a state other than its principal place of business or formal plac e of inc orpora tion might be “so substantial a nd of such a nature as
to rende r the corpor ation at home in that State.” Id. at 761 n . 1 9 ; s ee Bristol-Myers , 137 S. Ct.
at 1780 (“‘ only a limit ed set of aff iliations with a forum’” will g ive rise to g ener al jurisdiction (quoting Daimler AG , 134 S. Ct. at 760)); BNSF Ry. Co. v. Tyrrell , 137 S. Ct. 1549, 1558-59 (2017) (re peating that only in “exceptional” case s will nonresident corpor ation’s opera tions in another state
g ive rise to g ener al jurisdiction); Goodye ar Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915,
925-29 (2011) (discussing only two case s in which Supreme Court found g ener al jurisdiction to exis t in forum other than party ’s hom e st ate)

. On t hese facts, in which the alleg ed co n t ac t s with Texas

are Spray Foa m’s hiring of an independe nt sales repr esenta tive, having a distribution cente r in Texas, and training installers located in Texas, the L ucianos have not established the level of substantial and continuous contac ts w ith Te x as so as to g ive rise to g ener al jurisdiction. See Tyrrell , 137 S. Ct. at 1558-59 (ra ilway wi t h o v er 2,000 miles of trac k and 2,000 employ ees in Montana did not have sufficie nt activity in Montana as to allow for exercise of g ener al jurisdiction); Monkton Ins. Servs., Ltd. v. Ritter , 768 F.3d 429, 432 (5th Cir. 2014) (it is “incr edibly diffi cu l t t o es t ablish g ener al jurisdiction in a forum other than the plac e o f i n co rp oration or principal place of business”);
C r ossroads Fin., LLC v. A.D.I.M. Glob. Co. , No. 05-16-00486-CV, 2016 WL 7220970, *9 & n . 7 (Tex. App.—Dallas De c. 13, 2016, no pet.) (mem. op.) (“Eve n if [Florida company ] could be said

9to eng ag e in continuous and sy stematic contac ts with Texas by serving the Texas cli ents who

comprise thre e per cent of its business, [ company ] i s not ‘at home’ in Te x as.”)

.

Specific J urisdiction
We now consider whether the rec ord can support a det er m i n ation of specific jurisdiction. As noted ear lier, to establish specific jurisdiction, the L ucianos’ lawsuit must arise out of or rela te to Spray

Foa m’s co n tacts with Texas. See Bristol-Myers , 137 S. Ct. at 1780 (spec ific jurisdiction may only be exercised to adjudicate issues deriving from or connec ted to nonresident’ s activities that alleg edly

establish jurisdiction).
To support their arg ument that the exercise of specific jurisdiction is proper , the
L ucianos point to Spray

Foam’s sale of its product to Texas residents, its statement online that it had

a Texas distribution cente r, its training and cer tify ing of installers located in Texas, and its rete ntion of Nix as a repr esenta tive in Texas. Howeve r, Nix visited the L ucianos’ home afte r the installation of the Thermose al 500. Even if the L ucianos had shown that Nix ’s rela tionship with Spray Foam was something other than as an independe nt contra ctor, their claims are rela ted to the installation of the Spray Foam product and a

re not de rived fr om or conne cted to Spray Foam’s rela

tionship wit h Nix

. As evidenc e of Spray

Foam’s training and cer

tify ing the Texas installation company , the L ucianos next point to the invoice from the installatio n company for the installation of the Thermose al 500, pag es from the installation company ’s we b s i t e, an d an email from the company attaching the product specific ations for Thermose al 500. Howeve r, the L ucianos did not prese nt evidenc e that they selec ted the installer beca use of its rela tionship with or training and cer tification by Spray Foa m. I n fac t, the re co rd does not ref lect that the L ucianos specific ally chose the

10Thermose al 500 product or even knew that Thermose al 500 was the product that had been used until

some time afte r the installation was completed. The invoice states only that the installation company installed “1⁄2 lb Open Cell” “F o am” in the L ucianos’ house and does not mention Spray Foam or Thermose al 500, and the installation company ’s email, s ent a y ear afte r the installation, stated, “I have attached the spec she ets on the produc t we used on y our projec t.”

I n deed, the evidenc e does not establish that the installation company was actua lly trained and cer

tified by Spray

Foam. Smit h stated in her aff idavit that the installation company ’s web
pag es ref lected that the company was “a ‘ce rtified foam spray installer’ of” Spray Foa m. Howeve r, those web pag es are from the installation company ’s website, not from Spray Foam’s, and there fore cannot be considere d an admissi on by Spray Foam itself. Fu rther, the installation company ’s web
pag es produce d as exhibi ts state only that the company is a “ce rtified foam spray installer,” and there is no information provided about that cer tification or what entity issued the cer tification. Some of the installation company ’s web pag es bear the Spray Foa m logo, but they also bear the logos of at least one other insulation foam company and of sever al other companies or trade g roups. L ikewise, the i nstallation company ’s page with links to Spray Foam’s product catalog s also links to catal og s for products made by the other insulation foam company . As for the Thermose al 500 specific ation sheet prepa

red by Spray

Foam and emailed to the L ucianos by the installation company a y ear afte r the installation, Smit h aver red that the specific ation sheet “provid es t h at t he product is sold by ‘authorized repr esenta tive[s] who [have] completed training offe red by ’” Spray Foa m. Howeve r, the specific ation sheet actually states, under the he ading “W arr anty ,” the following : “When i nstalled
p roper ly [by ] a [S pray

Foam] authorized repr esenta tive who has completed all training o ff er ed b y

11[S pray

Foa m] , [S pray

Foam] war

rants that the product will meet a ll product specif ications outlined in this specification docume nt.”

Viewe d car efully , Smit h’s aff idavit and the attache d exhibi ts prese nted no evidenc e about the training alleg edly rec eived by the installation company , such as wher e or by whom it was conducte d, its contents, or its duration. That evidenc e cannot, there fore , be considere d as showing that Spray

Foa m had purposef

ully established contac ts with the installation company or t h at the
L ucianos’ lawsuit arose from such contac ts, much less that those training -re lated contac ts wer e sufficie nt to make it fair and rea sonable to subject Spray Foam to jurisdiction in Texas. See 6 Bristol-Myer , 137 S. Ct . at 1780.

Finally , althoug h the L

ucianos asser

t on appea l th a

t th e p r o d u c t in s ta ll ed in their home was shipped throug h Spray Foam’s Texas distributi on cente r to install in the home, pointing to the alleg ations in their petition, the petition did not alleg e wher e the Thermose al 500 was shipped from,

The L ucianos cite us to Huynh v. Nguyen , in which our sister court held that it was proper 6 to subject Unity Outpatient Surg ery Center L .L .C., a California surg ery cente r, to jurisdiction in Texas. 180 S.W .3d 608, 620-21 (Tex. App.—Houston [14t h Dist.] 2005, no pet.). Howe v er , in Huynh , a Texas resident testified in her deposition that she worke d for and understood that she was an employ ee of “Unity , ” t hat “Unity ” paid her a salary to solicit patients and reimburse d her adver tising costs, t hat s he had never hear d of “Unity Outpatient S urg ery Center, L .L .C.,” and that she was instead paid by “Unity Outpatient Surg ery Center, I nc.” Id. at 620. The court held that the trial court c ould have c oncluded that the “Unity ” that paid the Texas r esident was in fac t the L L C. Id

. I t further held that the rec ord supported finding s that the Texas resident was the L L C’s ag ent or employ ee, that she solicited patients for the L L C in Texas, and that the claims arose out of the L L C’s purposef ul contac ts wit h Texas. Id. The facts presented in that case are differ ent from the s parse evidenc e prese nted on this rec ord of an y purposef ul availment by Spray

Foam of the privileg e of doing busine ss in Tex as. 12nor did they attach aff idavits or other evidenc e to their response to Spray Foam’s specia l appea

ranc e that might show how the Thermose al 500 produc t was sent to the L ucianos’ pr oject. 7 Spray Foam prese nted evidenc e that it had not purposef ully established m i n imum
contac ts with T ex as . We cannot hold on this rec ord that the L ucianos’ evidenc e rebutted that evidenc e or that their claims arose or wer e derive d from such contac ts. Wit hout such a connec tion, there can be no exercise of specific jurisdiction “r eg ardle ss of the extent of a defe ndant’s

unconnec ted activities in the State.” See Bristol-Myers , 137 S. Ct. at 1781. We sustain Spray Foam’s first issue on appe al.

Conclusion

Be cause we conclude that the trial court lacks specific or g ener al jurisdic t i o n o v er Spray Foam, we reve rse the trial court’s order deny ing Spray Foam’s specia l appea

ranc e. We rende r judgme nt dismi ssing Spra y Foam from the L

ucianos’ la

wsuit.

__________________________________________ Cindy Olson Bour land, J ustice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land
Reverse d and Rende red Filed: Mar ch 9, 2018

We note that the S u p re m e Court rec ently disapproved of the “sliding scale ” approa ch 7 to specific jurisdict i o n as orig inally used in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. , 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (discussing “sliding scale ” of interac tivity of nonresident d ef en d ants ’ websites). The Court stated that it was “diffic ult to square ” its prec edents with the “s l i d i n g scale ” approa ch and that such an approa ch “re sembles a loose and spurious form of jurisdiction.” Bristol-Myers Squibb Co. v. Superior Court of Cal

. , 137 S. Ct . 1773, 1781 (2017). 13