1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00146-CV 

__________________

TBS BUSINESS SOLUTIONS USA, INC. 

AND TEWODROS “TEDDY” SAHILU, Appellants 

V.

ALLCO, LLC, Appellee

__________________________________________________________________

On Appeal from the 58th DistrictCourt

Jefferson County, Texas

Trial Cause No. A-207,203

__________________________________________________________________

MEMORANDUM OPINION 

The Texas long-arm statute authorizes a Texas court to exercise 

jurisdiction over a nonresident defendant in a lawsuit when the 

defendant does business in Texas.1 The plaintiff sued the defendants, a 

California-based business and individual who were both residents of 

California, alleging they did business in Texas and the long-arm statute 

1Tex. Civ. Prac. & Rem. Code Ann. § 17.042.
2

authorized the court’s exercise of jurisdiction over them in Texas. The 

defendants appeared through a special appearance, challenging the 

plaintiff’s claim that a Texas court could enter a judgment that would 

bind them because the trial court lacked jurisdiction over their persons. 

After hearing the defendants’ special appearance, the trial court 

found it had jurisdiction over the defendants and denied the defendants’ 

special appearance. Later, at the plaintiff’s request, the trial court 

reduced its findings and conclusions supporting its ruling to writing. In 

its written findings, the trial court found that the defendants “routinely 

sell and distribute products” in Texas, and concluded the exercise of 

jurisdiction over them in the suit would not “offend traditional notions of 

fair play[.]”

The defendants, TBS Business Solutions USA, Inc. and Tewodros 

“Teddy” Sahilu, its Chief Executive Officer, filed a timely, joint notice of 

appeal after the trial court signed an order denying their special 

appearance.2 On appeal, the appellants filed a brief raising four issues to 

support their arguments claiming the trial court’s order should be 

2Id. § 51.014(7) (authorizing the interlocutory appeal of a district 

court’s ruling that grants or denies a special appearance).
3

reversed. First, they argue that Allco failed to plead jurisdictional facts 

sufficient to show they are subject to the jurisdiction of courts in Texas.

Second, they contend that because the litigation involves the plaintiff’s 

contract with a business located in Texas rather than a contract between 

the plaintiff and TBS, a company incorporated with its principal place of 

business in California, the pleadings and evidence reveal the claims the 

plaintiff brought against them are not substantially connected to the 

operative facts of the litigation. Third, they argue the trial court’s 

exercise of jurisdiction over them offends traditional notions of fair play 

and substantial justice. And fourth, they contend the trial court erred in 

concluding Sahilu’s unsworn declaration, which they used to verify their 

Special Appearance, was noncompliant with the requirement of Rule 

120a that special appearances be made by “sworn motion[.]”3

To resolve the appeal, we must decide whether the appellants, both 

of whom are residents of California, did business in Texas under the 

Texas long-arm statute, and if so whether the trial court’s exercise of 

jurisdiction over them complies with the requirements of due process.For 

3Tex. R. Civ. P. 120a(1).
4

the reasons explained below, we conclude the trial court erred in denying 

the special appearance. We reverse the trial court’s order, render 

judgment granting the special appearance, and remand the case to the 

trial court with instructions to dismiss TBS and Sahilu from the suit. 

Background

After the Coronavirus (Covid-19) pandemic began, Allco, LLC 

ordered one million N95 masks manufactured by the 3M Company from 

a Texas-based business, Global Management Services, LLC, a medical 

supply business and authorized distributor of 3M masks. Allco ordered 

the masks from Global on March 31, 2020. To secure Global’s delivery of 

the masks, Allco sent Global a deposit of $870,000toward the $2,900,000 

Global charged for the masks. Allco transferred $870,000 to Global’s bank 

account via a wire transfer.

Global, which apparently didn’t have 3M masks in stock contacted 

TBS, another authorized 3M distributor in California, seeking a source 

of 3M, N95 face masks. On March 31, April 1, and April 6, 2020, Global 

sent TBS three purchase orders for 3M masks. These three orders (had 

the masks been delivered) would have allowed Global (had Global 

complied with its agreement with Allco) to fulfill its agreement with Allco 
5

and supply Allco with one million 3M masks. When Global sent TBS 

these orders, TBS knew Global had agreed to sell Allco one million 3M 

masks; even so, TBS disputed that it was a party to the agreement 

between Global and Allco. 

In all, the three purchase orders Global sent TBS, discussed above, 

represent orders for 5.6 million N95 face masks manufactured by 3M. 

The purchase orders show that Global expected to pay $5,423,250 for the

5.6 million masks. TBS accepted the three orders, and Global wired TBS 

$5,423,250 to pay for them. But after receiving Global’s money, TBS 

informed Global that it could not fill the orders through 3M. At Global’s 

request, TBS turned to Makrite Industries Inc., an alternate supplier of 

N95 masks,to supply Global with N95 masks manufactured by Makrite,

not by 3M. 

To account for the change in manufacturers and the fact the 

Makrite masks were nearly three times more expensive, Global sent TBS 

a fourth purchase order, dated August 13, 2020. In that order, Global 

ordered 1,000,000 Makrite N95 masks for $2,850,000. On August 19, 

2019, Global’s president, Roger Morgan, signed TBS’s Purchase Order 

Acknowledgment/Acceptance form, which is the same form that Global 
6

had signed when TBS acknowledged it accepted Global’s previous three 

orders. After TBS received the N95 masks from Makrite, pursuant to the 

terms of Global’s purchase order, TBS shipped the masks to Global by 

delivering them to a ground carrier so they could be delivered to Global 

in Texas.And since Global had previously sent TBS around $5.4 million 

to pay for orders TBS couldn’t fill with mask made by 3M, TBS applied 

approximately $2.8 million of the $5.4 million Global had deposited to the 

price TBS charged Global for the Makrite masks, refunding 

approximately $2.6 million to Global. 

Turning to Allco’s petition, Allco alleged that Global never sent it 

any masks and that the defendants kept Allco’s $870,000 deposit even 

though Allco demanded a refund. When negotiations among the parties 

about refunding Allco’s $870,000 failed, Allco sued Global, Global’s 

president(Roger Morgan), TBS, and Sahilu on nine claims: common-law 

fraud, fraud by nondisclosure, conversion, statutory theft, breach of 

contract, promissory estoppel, quantum meruit, vicarious liability, and 

civil conspiracy. 

After Allco sued, Morgan and Global failed to appear or to file 

answers to Allco’s suit. So Allco defaulted Global and Morgan.That said, 
7

after they were served, TBS and Sahilu appeared, and they filed a 

combined Special Appearance and answer. The appellants supported 

their Special Appearance with an unsworn declaration, signed by Teddy 

Sahilu. In their Special Appearance, TBS and Sahilu (the appellants) 

alleged thatthey are not residents of Texas, that TBS is incorporated and 

has its principal place of business in California, and that TBS entered a 

contract to sell face masks to Global, not to TBS. In his unsworn 

declaration, Sahilu explained that TBS has no offices in Texas, that the 

communications with Global were by phone or by email from TBS’s office 

in California, and that he and TBS did not performed any of the work 

related to TBS’s transactions with Global in Texas. 

In TBS’s sworn motion, TBS alleged that when TBS determined it 

couldn’t fill Global’s orders with 3M masks, it partially filled Global’s 

request with N95 masks manufactured by Makrite Industries based on 

Global’s instructions to do so. To account for the change in Global’s order 

of masks, Global sent TBS a new purchase orderand ordered one million 

Makrite Industries N95 masks for $2.85 million. Based on that order, 

TBS ordered the masks from Makrite Industries and charged Global for 

the masks, crediting the cost of the order for Makrite masks against the 
8

deposit it received from Global for the 3M masks and refunding the 

balance due Global, around $2.6 million.

In their special appearance, the appellants alleged they had not 

purposefully availed themselves of the privilege of conducting business 

in Texas, and they listed specific facts, which generally speaking explain 

why. Even though the trial court found Sahilu’s declaration defective, we 

note the appellants alleged in their Special Appearance that “[t]he 

incident on which the suit against TBS and Mr. Sahilu is based did not 

occur in Texas, and TBS and Mr. Sahilu have had no contacts with Texas 

in connection with this lawsuit, except to send the Makrite masks to 

Global via interstate commerce.”

In response to the Special Appearance, Allco argued the trial court 

could exercise specific jurisdiction over its suit because the appellants, in 

selling the masks, “had actual knowledge that the Makrite masks . . . 

were shipped to Texas.” Second, Allco claimed that by contracting with 

Global—a Texas distributor—TBS should have reasonably expected the 

masks would enter Texas. Allco concluded the exercise of personal 

jurisdiction over TBS would not offend traditional notions of fair play 
9

because contracts with Texas residents to supply face masks are of “great 

interest to the state of Texas.” 

When the trial court heard the special appearance, no one testified 

or asked the trial court to consider evidence not already attached to the 

pleadings on file.4 Following the hearing, the trial court denied the 

Special Appearance in a written order. Based on Allco’s request, filed 

nearly a month after the hearing, the trial court issued Written Findings 

of Fact and Conclusions of Law. In its request for findings, Allco asked 

the trial court to find that Sahilu’s declaration was defective “because it 

did not state that the facts set out in the pleadings were true and correct.” 

Yet before requesting findings, Allco had never before pointed to any 

defects in Sahilu’s declaration. After Allco requested and drafted 

proposed findings of fact and conclusions of law, the trial court rubber 

stamped Allco’s proposed findings and conclusions. In finding the facts, 

the court found:

4Other than the pleadings on file when the hearing occurred, the 

documents before the trial court when the hearing occurred are attached 

either to Plaintiff’s Original Petition, Plaintiff’s Response in Opposition 

to Special Appearance, and the combined Special Appearance and 

Answer. 
10

1. TBS Business Solutions USA, Inc. and Teddy Sahilu have 

sold and delivered medical supplies and equipment to Global 

Management Services, LLC, a Texas company located in 

Stafford, Texas that routinely sell and distribute products in 

the State of Texas. See Affidavit of Roger Morgan.

2. Global Management Services, LLC ordered the 3M masks 

at issue in this case from TBS Business Solutions USA, Inc., 

which some were destined for end use in the State of Texas.

See Affidavit of Roger Morgan.

3. Teddy Sahilu indicated to Roger Morgan that he knew that 

products sold to Global Management Services, LLC would be 

for end use in the State of Texas. See Affidavit of Roger 

Morgan.

4. Roger Morgan has personal knowledge that TBS Business 

Solutions USA, Inc. had a reasonable expectation that 

products distributed to Global Management Services, LLC

would enter the stream of commerce in the State of Texas. See 

Affidavit of Roger Morgan.

5. TBS Business Solutions USA, Inc. shipped Makrite masks 

directly to Houston, Texas as a part of this litigation. See 

Affidavit of Roger Morgan.

6. Global Management Services, LLC and Roger Morgan have 

coordinated with Texas OrthoSolutions, LLC and end users in 

the State of Texas regarding purchasing equipment that is 

distributed by Global Management Services, LLC and these 

products enter into the stream of commerce in Texas. See 

Affidavit of Ryan Armstrong.

7. TBS Business Solutions USA, Inc. and Teddy Sahilu have 

done business with another (unnamed) Texas company in a 

June 2020 transaction in which they contracted to sell
11

thermometers and isolation gowns to a company in Irving, 

Texas. See Declaration of Tewodros “Teddy” Sahilu.

Relying on the above, the trial court then reached these six

conclusions. 

1. Defendants purposefully availed themselves of the 

privilege of conducting activities within Texas and the 

claims against them in this litigation resultedfrom injuries 

arising from their contacts with Texas.

2. The exercise of personal jurisdiction over Defendants do 

not offend traditional notions of fair play and substantial 

justice.

3. Defendants have sufficient minimum contacts with Texas 

such thatthe exercise of jurisdiction is fair and reasonable.

4. Defendants also knew or reasonably anticipated that their

activities in Texas would render it foreseeable that they 

may be “hailed into court” here.

5. Defendants knew that some of their products were in or 

would wind up in Texas and intentionally acted to serve 

Texas with these products. 

6. The Declaration of Tewodros “Teddy” Sahilu, attached to 

Defendants’ Special Appearance, did not verify the special 

appearance as required by Texas Rules of Civil Procedure 

120(a), as it was defective because it did not state that the 

facts set out in the pleadings were true and correct.
12

Standard of Review

A nonresident defendant may object to the court’s authority to 

exercise jurisdiction over the defendant’s person or property by filing a 

special appearance meeting the requirements of Rule 120a.5 Under Rule 

120a, the trial court must decide the special appearance on “the 

pleadings, any stipulations made by and between the parties, such 

affidavits and attachments as may be filed by the parties, the results of 

discovery processes, and any oral testimony.”6 In deciding the motion, a 

trial court may consider evidence and resolve disputed issues of fact tied 

to resolving whether the trial court has personal jurisdiction over the 

nonresidents who have challenged the court’s jurisdiction over them by 

filing a special appearance.7 When, as here, the trial court denies the 

defendants’ special appearance and issues findings of fact and 

conclusions of law to support its ruling, the findings may be challenged

on appeal on legal or factual sufficiency grounds.8 We review a trial 

5See Tex. R. Civ. P. 120a; Tex. Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 240 (Tex. 2004).

6Tex. R. Civ. P. 120a(3).

7BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 

2002). 

8Id.
13

court’s conclusions of law as legal questions.9 Even though a party may 

not challenge a trial court’s conclusions of law on grounds of factual 

insufficiency, they may challenge a conclusion of law as incorrect.10

Should we determine that a conclusion of law is erroneous but despite 

the error the trial court reached the correct ruling, the error—if the trial 

court reached the right ruling anyway—would not require a reversal.11

Texas courts may exercise jurisdiction over nonresident defendants 

if the pleadings and evidence show the following:

• the Texas long-arm statute applies and authorizes a Texas 

court to decide the case; and

• the court’s exercise of jurisdiction over a nonresident 

defendant comports with the constitutional guarantees of due 

process.12

In its brief, Allco argues because the evidence before the trial court 

shows specific jurisdiction exists over the defendants for its claims, the 

trial court properly denied the special appearance. But the appellants 

question whether the trial court has the authority to bind them to a 

judgment, an issue that hinges on whether they have “the ‘minimum 

9Id. 10Id. 11Id. 12Searcy v. Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016).
14

contacts’ necessary to create specific jurisdiction.”13 The minimum 

contacts “necessary to create specific jurisdiction focuses on the 

relationship among the defendant, the forum, and the litigation.”14 “For 

a State to exercise jurisdiction consistent with due process, the 

defendant’s suit-related conduct must create a substantial connection 

with the forum State.”15

Specific jurisdiction exists if the plaintiff’s claims arise from or 

relate to the defendant’s purposeful contacts with the forum where the 

plaintiff sued.16 “A claim arises from or relates to a defendant’s forum 

contacts if there is a substantial connection between those contacts and 

the operative facts of the litigation.”17 This standard “does not require 

proof that the plaintiff would have no claim but for the contacts, or that 

the contacts were a proximate cause of the liability.”18 “Instead, we look 

at what the claim is principally concerned with, whether the contacts will 

13Walden v. Fiore, 571 U.S. 277, 283 (2014).

14Id. at 284 (cleaned up).

15Id. 16Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt. VI, 

L.P., 493 S.W.3d 65, 73 (Tex. 2016); see also Moki Mac River Expeditions 

v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007). 17TV Azteca v. Ruiz, 490 S.W.3d 29, 52 (Tex. 2016) (cleaned up).

18Id. at 52-53 (cleaned up).
15

be the focus of the trial and consume most if not all of the litigation’s 

attention, and whether the contacts are related to the operative facts of 

the claim.”19

The parties bear shifting burdens of proof in the hearing on the 

special appearance.20 Under the burden-shifting standard, the plaintiff 

must plead sufficientfacts to bring the nonresident defendant within the 

reach of the Texas long-arm statute.21 If the plaintiff’s pleadings do not 

show the plaintiff’s claims fall under the long-arm statute, “the defendant 

need only prove that it does not live in Texas to negate jurisdiction.”22 On 

the other hand, should the plaintiff plead facts sufficient to show the 

defendant committed a tort or did business with the plaintiff and that 

the business conducted in the State satisfied the requirements of due 

process, the burden shifts to the defendant to negate the well-pled 

allegations.23

19Id. at 53 (cleaned up). 

20Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 

2010)

21Id. 22Id. 658-59.

23See id. at 659.
16

Since the petition defines the scope of the lawsuit, “the defendant’s 

corresponding burden to negate jurisdiction is tied to the allegations in 

the plaintiff’s petition.24 The defendant may “negate jurisdiction on 

either a factual or a legal basis.”25 “Factually, the defendant can present 

evidence that it has no contacts with Texas, effectively disproving the 

plaintiff’s allegations[,]” and on presenting evidence that it has no 

contacts the burden shifts to the plaintiff to respond with evidence 

“affirming its allegations” to avoid having the suit dismissed.26 Or the 

defendant may present a legal defense by showing 

that even if the plaintiff’s alleged facts are true, the evidence 

is legally insufficient to establish jurisdiction; the defendant’s 

contacts with Texas fall short of purposeful availment; for 

specific jurisdiction, that the claims do not arise from the 

contacts; or that traditional notions of fair play and 

substantial justice are offended by the exercise of jurisdiction. 

One way the defendant may show the trial court cannot 

exercise jurisdiction over the defendant’s person is by showing 

that it has had no contacts with the forum.27

24Id. 25Id. 26Id. 27Id. 
17

Analysis

The Unsworn Declaration

Since deciding whether Sahilu’s Special Appearance met the 

requirements of Rule 120a is a threshold issue, we must determine 

whether the trial court erred in reaching that conclusion before we 

address the appellants’ remaining issues.28 On appeal, relying on Casino 

Magic Corp. v. King, Allco argues the trial court could have denied the 

appellants’ special appearance because the appellants failed to verify the

jurisdictional facts in their special appearance as true and correct, a 

requirement of Rule 120a.29 But even were Allco correct that Sahilu’s 

declaration failed to verify the jurisdictional facts in the Special 

Appearance (and it isn’t, as we later explain), defects in forms used to 

support a special appearance may be cured if the opposing party objects.30

But here, Allco didn’t objectto any alleged defects in Sahilu’s declaration 

until after the hearing occurred; instead, it waited until nearly two weeks 

28See Tex. R. Civ. P. 120a(1).

29Casino Magic Corp. v. King, 43 S.W.3d 14, 18 (Tex. App.—Dallas 

2001, pet. denied). 

30See Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) 

(noting that even the lack of a verification to support a special appearance 

is curable under Rule 120a). 
18

after the trial court denied the appellants’ Special Appearance, pointing 

the alleged defect out for the first time when it asked the trial court to 

conclude that because Sahilu’s declaration was defective, the declaration 

failed to verify the Special Appearance.

To be sure, Sahilu’s Declaration lacks a jurat. So even though Allco 

never complained the Declaration lacks a jurat, the Declaration Sahilu 

filed does not function as an affidavit.31 But even had Sahilu intended to 

file an affidavit and left off the jurat, an affidavit filed without a jurat is 

a defect that is subject to the rule of waiver since Rule 120aallows special 

appearances to “be amended to cure defects.”32 In other words, Allco 

waived any errors in Sahilu’s declaration by never objecting to it until 

after the trial court ruled on the appellants’ Special Appearance. 

And even if Sahilu intended to file an unsworn declaration, and in 

our view that’s what he intended, his unsworn declaration (absent a 

timely objection to its form) made the appellants’ Rule 120a Special 

Appearance a “sworn motion” under Texas law. Under section 132.001 of 

31See Tex. Gov’t Code Ann. § 312.011(1); 

32Tex. R. Civ. P. 120a(1); Mansions in the Forest, L.P. v. 

Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012); Dawson-Austin, 968 

S.W.2d at 321-22.
19

the Civil Practices and Remedies Code, an unsworn declaration 

transforms a special appearance into a sworn motion.33 With exceptions

not applicable here, section 132.001(a) provides: “[A]n unsworn 

declaration may be used in lieu of a written sworn declaration, 

verification, certification, oath, or affidavit required by statute or 

required by a rule, order, or requirement adopted as provided by law.”34

Given the above, the trial court’s conclusion that Sahilu’s 

declaration didn’t verify the Special Appearance because (in the trial 

court’s opinion) it was defective is legally incorrect and unsupported by 

the record. The record shows that Sahilu did verify the facts in the 

appellants’ Special Appearance. He declared: 

I am a Defendant in the above-referenced lawsuit. I am over 

18 years of age, of sound mind, and capable of making this 

affidavit. The facts stated in this affidavit are within my 

personal knowledge and are true and correct. I have also 

reviewed the Special Appearance filed by me and 

Defendant TBS Business Solutions USA Inc. (“TBS”) in 

the above-referenced lawsuit, and according to my 

personal knowledge, the facts stated therein are true 

and correct.(emphasis added).

33Tex. Civ. Prac. & Rem. Code Ann. § 132.001.

34Id. § 132.001(a). 
20

For all these reasons, we hold the trial court erred in concluding 

that Sahilu’s Declaration “did not verify the special appearance” as 

required by Rule 120a.

Specific Jurisdiction

In their first issue, the appellants argue that Allco failed to plead 

jurisdictional facts showing their connection with Texas. According to 

appellants, the “only jurisdictional allegations in [Allco’s] Original 

Petition are conclusory statements that ‘[t]he court has personal 

jurisdiction over Defendants because Defendants engaged in business in 

Texas by contracting with a Texas resident’ and ‘Defendants committed 

torts, which are the subject of this suit, in whole or in part in Texas.’” 

Were those the only allegations relevant to the trial court’s jurisdictional 

inquiry, we would agree that alone they cannot support the trial court’s 

ruling.35 But they don’t stand alone. When deciding a special appearance, 

35E.g., Doe v. Univ. of N. Tex. Health Sci. Ctr., No. 02-19-00321-CV, 

2020 Tex. App. LEXIS 2817, at *8 (Tex. App.—Fort Worth Apr. 2, 2020, 

pet. denied) (“[A] plaintiff does not meet the burden to plead facts 

affirmatively demonstrating jurisdiction with conclusory allegations; as 

we have held, if conclusory allegations were sufficient, ‘the jurisdictional 

inquiry would become meaningless.’”) (quoting City of Forest Hill v. 

Cheesbro, No. 02-18-00289-CV, 2019 Tex. App. LEXIS 1572, at *5 (Tex. 
21

the court’s jurisdictional inquiry is not limited to one paragraph of the 

pleadings. Instead Rule 120a requires the jurisdictional inquiry to 

encompass the factual allegations in “the pleadings . . . and such 

affidavits and attachments as may be filed by the parties, the results of 

discovery processes, and any oral testimony.”36 So even though the 

appellants focus on one paragraph of the Plaintiff’s Original Petition to 

argue Allco’s pleadings of jurisdictional facts were insufficient, the trial 

court was not free to ignore the remaining allegations of fact in Allco’s 

thirteen-page-long Original Petition or the factual allegations in Allco’s 

thirteen-long-page Response in Opposition to Special Appearance.When 

considering the matters encompassed by Rule 120a, we conclude the 

pleadings and evidence, if taken as true, are sufficient to show the trial 

court was authorized on the pleadings, had the pleadings been 

undisputed, to exercise specific jurisdiction over at least one of Allco’s 

nine claims. 

App.—Fort Worth Feb. 28, 2019, no pet.) (mem. op.)); McLane v. Thomas, 

No. 03-18-00439-CV, 2020 Tex. App. LEXIS 1964, at *20 (Tex. App.—

Austin Mar. 6, 2020, pet. denied) (“[C]onclusory allegations are not 

sufficient to overcome sovereign immunity.”).

36Tex. R. Civ. P. 120a(3).
22

In issue two, the appellants contend their contacts with Texas are 

insufficient under the pleadings and evidence before the trial court to 

establish that the trial court could exercise specific jurisdiction over them 

in the suit. As to Allco’s claims, the parties do not dispute that on March 

31, 2020, Global agreed to sell Allco one million N95 face masks 

manufactured by 3M for $2,900,000.To secure the sale, Allco sent Global 

$870,000 in advance as a deposit toward its purchase of the masks. 

Global, an authorized distributor of 3M masks, contacted TBS, a business 

incorporated in California with its principal place of business there, to 

fill orders Global was receiving from its customers, customers that 

included Allco, for N95 face masks manufactured by 3M. 

The evidence shows that between March 31, 2020, and August 13, 

2020, Global sent four Purchase Orders to Allco for face masks. The first 

three of these orders were for 3M masks, but the last order on August 13, 

2020, was for N95 masks made by Makrite Industries, which Global told 

TBS to order after learning that TBS couldn’t fill Global’s first three 

purchase orders for 3M masks even though Global had already paid TBS 

in advance for those orders and before TBS delivered the 3M masks that 

were ordered.
23

In its petition, Allco alleged the “Defendants represented to [Allco] 

that they were ready, willing, and able to provide the N95 masks upon 

receipt of payment[.]” But there were no facts alleged about where TBS 

or Sahilu allegedly made those representations to Allco.Simply put, Allco 

alleged no facts claiming that Sahilu or any employees of TBS were in 

Texas when these representationswere made. And the facts Sahilu swore 

to in his special appearance—that its business with Global was all by 

phone or email from California—was undisputed. More than a decade 

ago, the Texas Supreme Court rejected the “directed a tort” approach and 

the “effects test,” the very tests Allco asked the trial court to apply (and 

the court appears to have applied based on its findings of fact) in ruling 

on the defendants’ special appearance.37

Next, we turn to the jurisdictional evidence attached to Allco’s 

pleadings. It shows that Global’s relationship concerning both the 3M 

masks, which weren’t delivered, and the Makrite face masks, which were 

delivered, were with TBS and its managing director, Sahilu. In other 

37See Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 564-

565 (Tex. 2018); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 

777, 790-792(Tex. 2005).
24

words, TBS’s and Sahilu’s relationships on these transactions were not 

with Allco, and Allco’s evidence does not show otherwise. For instance, 

every time TBS accepted Global’s purchase orders for 3M face masks, 

TBS sent Global a “Purchase Order Acknowledgement/Acceptance” form, 

which Global’s president, Roger Morgan, signed. Allco is not a party to 

these agreements. The record contains no contract between TBS and 

Allco obligating TBS to sell Allco any product, including 3M or Makrite 

face masks. 

Add to that, the following condition is in each of the Acceptance 

forms that Morgan signed when purchasing 3M masks from TBS:

As the cases of COVID-19 accelerate across the United States 

and Canada, 3M is receiving an increasing number of requests 

for large-volume supply to support the healthcare industry 

and national preparedness efforts. As a result, order status 

and shipping dates could fluctuate based on supply. We value 

your business and patience during this time. This is an 

evolving situation and we are supplying the best manner 

possible. We are dedicated to fulfilling all orders in a timely 

manner. 

So the written terms of Global’s and TBS’s agreements informed Global 

that TBS’s ability to supply 3M masks could fluctuate based on supply 

and that it would “supply in the best manner possible.” That statement 

reflects TBS would supply customers like Global 3M masks given the 
25

demands for them in the “best manner possible,” basically a best-efforts 

term in filling Global’s orders. It doesn’t show that TBS represented to 

Global that it had over 5 million N95 masks manufactured by 3M on hand 

when Global issued the purchase orders in March and April 2020. And 

while Allco attached an affidavit signed by Global’s president, Roger

Morgan, to its reply, Morgan never claimed that TBS ever told him that 

it had millions of N95 face masks manufactured by 3M on hand when he 

spoke to Sahilu or anyone at TBS. So despite Allco’s conclusory allegation 

claiming “Defendants” represented “they” were ready, willing, and able 

to supply 3M masks, allegations that are devoid of specifics are 

insufficient to affirmatively demonstrate how TBS or Sahilu did business 

or committed a tort in Texas.38

We further conclude that the purchase orders attached to Allco’s 

pleadings show that Global, a Texas business, reached into California by 

ordering face masks under an order requiring TBS to ship the masks to 

it by a common ground carrier so that Global could then use the masks 

38See Doe, 2020 Tex. App. LEXIS 2817, at *8; Cheesbro, 2019 Tex. 

App. LEXIS 1572, at *5; McLane, 2020 Tex. App. LEXIS 1964, at *20.
26

in its business to fulfill its own agreements with its customers.39 In other 

words, TBS would have discharged its obligations under the purchase 

orders for the 3M masks (had it obtained and delivered the masks) on 

handing the masks to a common carrier in California, regardless of 

whether California or Texas law were to apply to these three unfilled 

purchase orders.40 Our conclusion that TBS’s obligations would have 

been discharged upon delivering the masks in California is reinforced by 

the fact that Global left the box labeled “F.O.B. POINT” in the purchaseorders blank. The term F.O.B. is a commercial term, which is defined by 

California and Texas law as “free on board.”41 Thus, under Global’s 

purchase orders, the parties to the contract anticipated that the risk of 

loss of the goods involved in the transaction passed to Global when TBS

delivered the masks to a common carrier in California, meaning the 

39Cal. Com. Code § 2509(1)(a) (Deering, Lexis Advance through 

Chapter 138 of the 2022 Regular Session); Tex. Bus. & Com. Code Ann. § 

2.509(a)(1).

40Id. 41Cal. Com. Code § 2319(1) (Deering, Lexis Advance through 

Chapter 175 of the 2022 Regular Session); Tex. Bus. & Com. Code Ann. § 

2.319
27

purchase orders did not require TBS to perform any part of the work 

under the purchase orders in Texas.42

Given the evidence about the nature of the relationship (or lack 

thereof) between Allco and TBS as it relates to the purchase orders that 

lie at the heart of the controversy, the question boils down to whether 

Allco’s claims arise from or relate to TBS’s purposeful contacts with the 

forum where Allco filed suit.43 The answer is clearly no. Even though the 

trial court improperly relied on the directed tort and effects test, both of 

which tests have been rejected by the Texas Supreme Court, Allco led the 

court into the error. Just because TBS knew the masks would end up in 

Texas is insufficient withoutmore than is shown in this record to support 

the trial court’s conclusion that it had specific jurisdiction over TBS or 

Sahilu because a product TBS sold ended up in Texas.44

To support the exercise of specific jurisdiction over a defendant, the 

jurisdictional evidence or allegations in the pleadings must establish the 

42Id. 43Cornerstone Healthcare Grp. Holding, Inc., 493 S.W.3d at 73; see 

also Moki Mac, 221 S.W.3d at 576. 

44See Spir Star AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010); see 

also Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., 480 U.S. 102, 

107 (1987) (plurality opinion).
28

nonresident defendant engaged in conduct sufficient to demonstrate the 

nonresident defendant reached beyond its own state, created a 

continuing relationship with the resident of the other state, and the suit 

is related to the nonresident’s activities.45 Examples of conduct that show 

a nonresident purposefully availed itself of a benefit or advantage in the 

forum where the suit was filed include: (1) designing the product for the 

market in the forum; (2) advertising for business in the forum; (3) 

establishing channels for providing its customers with regular advice in 

the forum; and (4) marketing products through a distributor who serves

as the nonresident’s sales agent in the forum.46 Allco’s pleadings do not 

allege that TBS designed any product, advertised in Texas, or that Global 

was TBS’s sales agent in Texas. And even though the trial court found 

that TBS and Sahilu “routinely sell and distribute products” in Texas, 

the trial court based that finding on Roger Morgan’s affidavit. But all he 

said in his affidavit was that “I have ordered medical supplies and 

equipment from [TBS] in the past, namely 3M respirator masks.” While 

Morgan’s affidavit does mention routine sales, he mentions routine sales 

45Asahi, 480 U.S. at 112; Spir Star AG, 310 S.W.3d at 873.

46Id.
29

only in the context of Global’s business, not that of TBS: He swore: “My 

company [Global] has routinely sold and distributed products in the state 

of Texas for end use in the State of Texas, and thus, said products have 

entered the stream of commerce in the State of Texas.” Even though 

Morgan may have ordered medical suppliesand equipment from TBS and 

Sahilu in the past, his affidavit fails to show how Allco’s claims “arise out 

of or relate to” TBS’s contacts in Texas on a case involving Global’s 

alleged failure to return Allco’s deposit of $870,000 and where the 

relationship between TBS and Global as to the 3M masks Global ordered 

is a relationship that is centered in California, not Texas.47

Here, it appears the trial court focused on the unilateral activity of 

Global rather than the nonresident’s relationship with the forum in 

ruling on the Special Appearance. But the jurisdictional analysis 

requires courts to focus on the nonresident’s relationship to the forum, 

not the unilateral activity of a third party.48 And even when the 

47See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 427 (1985); 

Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 

(Tex. 2009). 48Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 9 (Tex. 

2021).
30

nonresident literally has a flood of contacts with the forum, “the exercise 

of specific jurisdiction is prohibited if the suit does not arise out of or 

relate to the defendant’s contacts with the forum.”49 This concept—that 

specific jurisdiction is confined to adjudicating issues deriving from or 

connected with the controversy involved in the lawsuit—which courts 

refer to as the relatedness inquiry, applies to all of Allco’s claims.50

The heart of the dispute in the trial court was Global’s failure to 

return Allco’s deposit of $870,000. In a sworn motion, the appellants 

alleged that TBS was not “privy to any of Global’s clients’ purchase orders 

or delivery information,” an allegation sufficient to shift the burden to 

Allco to prove Allco was a party to the agreement between TBS and 

49Id. at 14 (cleaned up). 

50Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985) (“[A]n 

individual’s contract with an out-of-state party alone [cannot] 

automatically establish sufficient minimum contacts in the other party’s 

home forum[.]”); Luciano, 625 S.W.3d at 14 (noting that a flood of 

purposeful contacts is insufficient for a court to exercise specific 

jurisdiction unless there is a nexus between the defendant, the litigation, 

and the forum); TV Azteca, 490 S.W.3d at 46 (comparing the stream-ofcommerce cases with the directing-a-tort cases);Moncrief Oil, 414 S.W.3d 

at 152 (“Texas’s interest in protecting its citizens against torts is 

insufficient to automatically exercise personal jurisdiction upon an 

allegation that a nonresident directed a tort from outside the forum 

against a resident.”). 
31

Global involving Global’s purchase of 3M face masks.51 But the 

documents Allco attached to its pleadings do not show that Allco was a 

party to the TBS/Global contract or that TBS was a party to the 

Allco/Global contract.52 And during the hearing on the appellants’ Special 

Appearance, in response to a question from the court, Allco’s attorney 

agreed that TBS had returned the money owed to Global after accounting 

for Global’s obligation to pay TBS for delivering to Global one million 

Makrite N95 masks. 

To sum up: The evidence before the trial court shows that TBS and 

Global conducted their business in California, not in Texas. Allco failed 

to allege and prove the appellants’ contacts with Texas related to and 

were connected in a substantial way to the facts of the litigation involving 

the agreement between Global and Allco. 

51See Kelly, 301 S.W.3d at 658 (noting the caselaw governing special 

appearances “dictates that the plaintiff and the defendant bear shifting 

burdens of proof); First Bank v. Brumitt, 519 S.W.3d 95, 102 (Tex. 2017)

(“As a general rule, the benefits and burdens of a contract belong solely 

to the contracting parties, and no person can sue upon a contract except 

he be a party to or in privity with it.”) (cleaned up). 52See Brumitt, 519 S.W.3d at 102 (placing the burden of proof on the 

party who seeks to prove it is a third-party beneficiary to another’s 

contract).
32

For the reasons explained above, we conclude TBS was not doing 

business in Texas under the purchase orders Global issued to TBS. We 

sustain the appellants’ second issue. Because resolving the appellants’ 

third issue would not provide appellants more relief, we need not address 

that issue.53 

Conclusion

We overrule the appellants’ first issue, sustain issues two and four, 

and conclude we need not reach issue three. We reverse the trial court’s 

order denying the special appearance. We remand the case to the trial 

court, with instructions that the trial court dismiss and then sever the 

claims against the appellants, TBS Business Solutions USA, Inc. and 

Tewodros “Teddy” Sahilu, from the claims against any other parties to 

the suit. 

REVERSED AND REMANDED. 

 _________________________

 HOLLIS HORTON

 Justice

Submitted on November 4, 2021 

Opinion Delivered September 15, 2022

Before Golemon, C.J., Horton and Johnson, JJ. 

53Tex. R. App. P. 47.1. (requiring opinions to address each issue that 

is necessary to resolving the appeal).