Reversed and Remanded and Memorandum Opinion filed March 11, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00084-CV

CMC STEEL FABRICATORS, INC D/B/A CMC CONSTRUCTION 

SERVICES, Appellant

V.

RED BAY CONSTRUCTORS, INC., Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1014960

MEMORANDUM OPINION

CMC Steel Fabricators, Inc. brought a suit on a sworn account against Red 

Bay Constructors, Inc. Red Bay filed a special appearance, and the trial court 

granted it and dismissed the suit for lack of personal jurisdiction. CMC appealed, 

contending that Red Bay made a general appearance by failing to properly verify 

its special appearance and thereafter filing a motion for continuance. CMC also 

contends that the evidence is legally insufficient to support the trial court’s order
because Red Bay’s first set of affidavits were not based on personal knowledge, 

and Red Bay’s supplemental affidavits were untimely and not before the trial court.

We agree with CMC’s legal sufficiency point, reverse the trial court’s order, 

and remand for further proceedings.

I. PROCEDURAL BACKGROUND

CMC brought a suit on a sworn account against Red Bay for an unpaid 

account of $35,057.52. CMC alleged in its petition that Red Bay was “a foreign 

corporation that does not maintain a registered agent for service of process in the 

state of Texas,” and acknowledged that Red Bay’s address was in South Carolina. 

CMC also alleged, however, that “a substantial part of the acts or events or 

obligations of the parties were to be performed in Harris County, Texas,” and that 

Red Bay “contractually agreed that all obligations under its course of dealing with 

CMC were to be performed in Harris County, Texas.”

On July 10, 2012, Red Bay filed a special appearance and, subject thereto, 

original answer, contending Red Bay did not have sufficient minimum contacts 

with Texas for personal jurisdiction. Red Bay attached (1) printouts from the 

South Carolina Secretary of State website for Red Bay and CMC; (2) an affidavit 

signed by Red Bay’s attorney, James Evans; (3) a verification signed by Eric 

Labarca; and (4) an affidavit signed by Eric Labarca.1

On November 13, 2012, CMC filed a response to Red Bay’s special 

appearance and filed written objections to all of Red Bay’s evidence. In particular, 

CMC objected to the affidavits and verification because they were not based on 

personal knowledge as required by Rule 120a(3) of the Texas Rules of Civil 

Procedure.

1 Labarca’s affidavit testimony appears in the appendix to this opinion.

2

 
On November 26, 2012, Red Bay filed a supplemental special appearance 

and attached (1) printouts from the South Carolina Secretary of State website; (2) 

an affidavit signed by Evans; (3) a verification that was unsigned; and (4) an 

affidavit for Labarca that was unsigned.2

 On the same day, Red Bay noticed a 

hearing for its special appearance on December 3, the date of trial, and Red Bay 

filed a motion to continue and issue a new docket control order. On November 27, 

2012, Red Bay filed a supplemental affidavit signed by Evans, a supplemental 

verification signed by Labarca, and a supplemental affidavit signed by Labarca.

Six days later, on December 3, the trial court held a hearing on Red Bay’s 

special appearance. CMC’s counsel complained that Red Bay’s “initial affidavits 

that they filed were not based on personal knowledge.” CMC’s counsel also 

objected to Red Bay’s supplemental affidavits filed six days before the hearing 

because Rule 120a required Red Bay to serve its affidavits seven days before the 

hearing. CMC’s counsel asked the trial court to rule on his objections, but the 

court said it would rule on them at a later time.3

On January 8, 2013, the trial court signed an order granting Red Bay’s 

special appearance and dismissing the case for lack of personal jurisdiction. On 

January 31, CMC filed a motion for rulings on its objections, and the trial court 

held a hearing on February 19. At the hearing, CMC’s counsel asked the court to 

rule on the written objections and the oral objection regarding the timeliness of 

Red Bay’s supplemental affidavits. The trial court said it would not be ruling on 

2 The supplemental special appearance includes a certificate of service dated November 

26.

3 CMC’s counsel said that he agreed to Red Bay’s continuance, and the trial court granted 

it.

3

 
the objections at the time. On March 12, CMC filed a written objection to the trial 

court’s refusal to rule on objections.4

CMC appealed, contending that (1) Red Bay made a general appearance 

rather than a special appearance due to defects in its verification and the filing of a 

request for a continuance; and (2) there is legally insufficient evidence to support 

the trial court’s ruling. CMC’s second issue is dispositive, and we address it 

below.

II. SUFFICIENCY OF THE EVIDENCE

CMC contends the evidence is insufficient to support the trial court’s order 

granting the special appearance because (1) Red Bay’s initial affidavits were not 

based on personal knowledge and (2) Red Bay’s supplemental affidavits were

untimely. Red Bay contends that regardless of whether any of its evidence was 

sufficient to support the trial court’s order, the trial court correctly granted the 

special appearance because CMC failed to adequately plead jurisdictional facts. 

Red Bay also contends that the trial court may consider its supplemental affidavits 

even though they were filed less than seven days before the hearing. Finally, Red 

Bay contends that CMC waived its specific complaints about Red Bay’s initial 

affidavits not being based on personal knowledge, but regardless, Red Bay’s initial 

affidavits were based on personal knowledge.

First, we will address whether CMC met its burden to plead jurisdictional 

facts. Then, we must determine what evidence was properly before the trial court 

and thus should be included in the sufficiency review. In this task, we will address 

whether Red Bay’s supplemental affidavits were properly before the trial court. 

4 Meanwhile, CMC also filed a request for findings of fact and conclusions of law and a 

notice of past due findings of fact and conclusions of law. The trial court ultimately signed 

findings and conclusions as follows: “The Court finds it had no personal jurisdiction over the 

defendant and thus, granted the Special Appearance.”

4

 
Next, we will address Red Bay’s contention that CMC waived its argument 

concerning the initial affidavits’ failure to demonstrate personal knowledge; and 

we will address the admissibility of those affidavits. 

After determining what evidence was properly before the trial court, we will 

address whether the evidence is sufficient to support the trial court’s order.

A. CMC met its burden to plead jurisdictional facts.

CMC had the initial burden of pleading sufficient allegations to bring Red 

Bay, a nonresident defendant, within the reach of Texas’s long-arm statute. See 

Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). Red Bay 

now attempts to show that even if CMC’s alleged facts are true, the allegations are 

insufficient to establish jurisdiction. See id. at 659. Because this issue presents a 

question of law, we review it de novo. See id. at 657.

“The Texas long-arm statute authorizes the exercise of jurisdiction over a 

nonresident defendant who does business in Texas.” Perna v. Hogan, 162 S.W.3d 

648, 652 (Tex. App.—Houston [14th Dist.] 2005, no pet). The statute provides 

that “a nonresident does business in this state if the nonresident . . . 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.” Tex. Civ. Prac. & Rem. Code Ann. § 17.042. 

Thus, we have noted that a contract’s “place of performance is an important 

consideration” for determining whether personal jurisdiction is satisfied. Citrin 

Holdings, LLC v. Minnis, 305 S.W.3d 269, 281 (Tex. App.—Houston [14th Dist.] 

2009, no pet.) (“A contract calling for performance in Texas can support personal 

jurisdiction in appropriate circumstances.”).

In its petition, CMC alleged that “all or a substantial part of the acts or 

events or obligations of the parties were to be performed in Harris County, Texas.” 

Further, CMC alleged that Red Bay “contractually agreed that all obligations under 

5
its course of dealing with CMC were to be performed in Harris County, Texas.” 

These allegations are sufficient to bring Red Bay within the reach of Texas’s longarm statute. See Info. Servs. Group Inc. v. Rawlinson, 302 S.W.3d 392, 399 n.4 

(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (liberally construing the 

pleadings, holding that although the defendant lacked minimum contacts with 

Texas, the plaintiffs satisfied their initial pleading burden by alleging that the 

defendant entered into a contract with Texas companies calling for performance in 

part in Texas, engaged in significant activities in or related to Texas, and 

conducted business in Texas); Huynh v. Nguyen, 180 S.W.3d 608, 619 (Tex. 

App.—Houston [14th Dist.] 2005, no pet.) (“This minimal pleading requirement is 

satisfied by an allegation that the nonresident defendants are doing business in 

Texas.”).

Red Bay cites McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965), for the 

proposition that “a ‘legitimate inference’ can by drawn that [Red Bay] does not do 

business in Texas if it doesn’t maintain a designated agent for service.” In 

McKanna, however, the Texas Supreme Court rejected the court of appeals’

inference that the defendant did not maintain a place of regular business in Texas 

or designate an agent for service in Texas by the mere allegation that service could 

be made on the Secretary of State of Texas. See id. at 929–30. In fact, the court 

found the plaintiff’s allegation sufficient to satisfy the Texas long-arm statute for 

“doing business” in Texas because the plaintiff alleged that the defendant executed 

and delivered a “note payable to the order of plaintiff at 1210 Perry-Brooks 

Building, Austin, Texas.” Id. at 929. The parties had even stipulated that the 

defendant was doing business in Texas, so that issue was not before the court. Id.

McKanna is inapplicable.

6
Because CMC met its pleading burden, the burden shifted to Red Bay to 

negate all bases of personal jurisdiction alleged by CMC. See Kelly, 301 S.W.3d at 

658. Red Bay needed to negate jurisdiction by presenting evidence that it did not 

have sufficient contacts with Texas for personal jurisdiction, effectively disproving 

CMC’s allegations. See id. at 659. CMC contends that Red Bay failed to negate 

jurisdiction because all of Red Bay’s evidence was either (1) untimely and 

therefore not properly before the trial court, or (2) not based on personal 

knowledge and therefore inadmissible. We will address each contention in turn.

B. Red Bay’s supplemental affidavits were not before the trial court.

The Texas Rule of Civil Procedure governing special appearances requires 

that any affidavits filed by the parties “shall be served at least seven days before 

the hearing.” Tex. R. Civ. P. 120a(3). We have previously held that a movant’s 

affidavits filed in noncompliance with this deadline are “not properly before the 

trial court and should not be considered.” Tempest Broad. Corp. v. Imlay, 150 

S.W.3d 861, 870 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see also Said v. 

Maria Invs., Inc., No. 01-08-00962-CV, 2010 WL 457463, at *3–4 (Tex. App.—

Houston [1st Dist.] Feb. 11, 2010, pet. denied) (mem. op.) (trial court erred by 

considering late-served affidavits in support of the special appearance).

Red Bay concedes that its signed supplemental affidavits were not served 

until six days before the hearing on its special appearance. Red Bay contends, 

however, that the trial court had discretion to consider the supplemental affidavits, 

and we should presume the trial court allowed the late filing. We rejected this 

argument in Imlay. See 150 S.W.3d at 870. Although the trial court has discretion 

to allow the opposing party to file late affidavits upon showing that he cannot 

present facts essential to justify his opposition, the rule does not address the 

movant’s tardy affidavits. See id. (citing Potkovick v. Reg’l Ventures, Inc., 904 

7
S.W.2d 846, 850 (Tex. App.—Eastland 1995, no writ)); see also Said, 2010 WL 

457463, at *3.5

 Red Bay’s authorities concerning a trial court’s discretion on the 

timeliness issue are inapplicable. See S.P.A. Giacomini v. Lamping, 42 S.W.3d 

265, 269–70 (Tex. App.—Corpus Christi 2001, no pet.) (movant was objecting to 

the non-movant’s affidavits); Potkovick, 904 S.W.2d at 850 (same).

Red Bay contends that the right to amend a special appearance motion6

should apply to evidentiary affidavits, citing Dawson-Austin v. Austin, 968 S.W.2d 

319 (Tex. 1998), wherein the Texas Supreme Court held that an unverified special 

appearance could be cured by amendment with the filing of a verification at any 

time before there is a general appearance. See id. at 322 (citing Tex. R. Civ. P. 

120a(1)). Dawson-Austin involved the question of when a defendant waives his 

special appearance; it did not involve defective affidavits filed as evidentiary 

support of the special appearance under Rule 120a(3). See id. In reaffirming the 

holding of Dawson-Austin, the Texas Supreme Court in Exito Electronics, Co. v. 

Trejo, 142 S.W.3d 302 (Tex. 2004), held that a defective verification and affidavit 

would not result in waiver of a defendant’s special appearance. Id. at 307–08. The 

court of appeals had concluded that the affidavit failed to demonstrate the affiant’s 

personal knowledge, among other defects, and thus did not comply with Rule 

120a(3); and the court of appeals held that the filing of a special appearance with 

no evidentiary support in compliance with Rule 120a(3) resulted in the defendant 

waiving its special appearance. See Exito Elecs., Co. v. Trejo, 99 S.W.3d 360, 

5 Rule 120a(3) states, “Should it appear from the affidavits of a party opposing the 

motion that he cannot for reasons stated present by affidavit facts essential to justify his 

opposition, the court may order a continuance to permit affidavits to be obtained or depositions 

to be taken or discovery to be had or may make such other order as is just.” Tex. R. Civ. P. 

120a(3).

6 See Tex. R. Civ. P. 120a(1) (“A special appearance . . . may be amended to cure 

defects.”).

8

 
372–73 (Tex. App.—Corpus Christi 2003), rev’d, 142 S.W.3d 302 (Tex. 2004). 

The Texas Supreme Court reversed, reasoning that such defects would not result in 

a waiver, but rather, “[a]ny defect in proof goes to the merits.” 142 S.W.3d at 308. 

Likewise, we now evaluate the propriety of considering Red Bay’s evidence as part 

of our review of the merits of its special appearance; we do not hold that Red Bay 

waived its special appearance by the mere fact that its supplemental affidavits were 

untimely. Dawson-Austin does not stand for the proposition that a special 

appearance may be amended with evidentiary affidavits less than seven days 

before the hearing. 

Finally, Red Bay contends that the supplemental affidavits should be 

considered because CMC was not prejudiced by Red Bay’s tardy filing. Red Bay 

notes that (1) Red Bay had served identical unsigned and unsworn affidavits on 

CMC seven days before the hearing; (2) the supplemental affidavits were identical 

to the original affidavits “except for the inclusion of the words ‘personal 

knowledge’”; and (3) CMC did not ask for additional time to respond to Red Bay’s 

supplemental affidavits or gather additional evidence. Notwithstanding Red Bay’s 

failure to cite any authority suggesting that prejudice is an appropriate inquiry at 

this stage of the proceedings, we note that unsigned and unsworn statements are 

generally not considered evidence,7 and it was not CMC’s burden to ask for 

additional time; rather, Red Bay could have “requested leave of court to re-open 

the evidence in a subsequent hearing to add the tardy affidavit.” Imlay, 150 

S.W.3d at 870.

Accordingly, consistent with the precedent of this court and other courts of 

appeals, Red Bay’s untimely supplemental affidavits were not properly before the 

7 See, e.g., Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7, 14 n.12 (Tex. 

App.—Houston [14th Dist.] 2005, no pet.).

9

 
trial court, and we will not consider them when reviewing the sufficiency of the 

evidence to support the trial court’s order. See id.; Said, 2010 WL 457463, at *4; 

see also Hale v. Richey, No. 10-11-00187-CV, 2012 WL 89920, at *8 (Tex. 

App.—Waco Jan. 11, 2012, no pet.) (mem. op.) (holding that the defendant’s 

“supplemental affidavit was untimely and, therefore, not properly before the trial 

court and should not be considered”).

C. CMC preserved error regarding its objection to Red Bay’s original 

affidavits not being made on personal knowledge.

Turning to Red Bay’s original affidavits, Red Bay contends that CMC’s 

objections in the trial court regarding lack of personal knowledge were more 

limited than CMC’s complaints on appeal, and Red Bay repeatedly notes that the 

trial court never ruled on CMC’s objections. Red Bay also contends that CMC 

failed to state “any basis for a lack of actual personal knowledge” by the affiants, 

and that if Red Bay “had been put on notice as to CMC’s specific objections as to 

the contents of the affidavits and verification at any time prior to [Red Bay’s] 

Reply Brief, then Red Bay could have taken steps to appropriately amend the 

affidavits.”

Thus, Red Bay appears to argue that CMC failed to preserve error. See, e.g., 

Wash. DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 736 (Tex. App.—

Houston [14th Dist.] 2013, pet. filed) (en banc) (litigants must preserve complaints 

about a special appearance affiant’s lack of personal knowledge by objecting and 

obtaining a ruling from the trial court); Moran v. Mem’l Point Prop. Owners Ass’n, 

Inc., 410 S.W.3d 397, 407 (Tex. App.—Houston [14th Dist.] 2013, no pet.) 

(complaints on appeal must comport with objections raised in trial court to 

preserve error); Zurita v. Lombana, 322 S.W.3d 463, 477 (Tex. App.—Houston 

[14th Dist.] 2010, pet. denied) (issues not raised until a reply brief are waived).

10
Rule 33.1 of the Texas Rules of Appellate Procedure requires a litigant to preserve 

error by making an objection that states the grounds for the ruling sought with 

sufficient specificity to make the trial court aware of the complaint; and the trial 

court must rule on the objection, or refuse to rule on the objection with the 

complaining party objecting to the refusal. See Tex. R. App. P. 33.1. 

First, we will review CMC’s conduct in the trial court. CMC filed written 

objections to the affidavits before the special appearance hearing, complaining in 

particular about Labarca’s affidavit: “CMC objects to the affidavit of Eric Labarca 

attached to Red Bay’s special appearance because it does not state that the affidavit 

is based on his personal knowledge nor does it state that the facts recited therein 

are true and correct. Therefore, the affidavit is not based on personal knowledge as 

required by Tex. R. Civ. P. 120a(3) which requires affidavits be made on personal 

knowledge.” At the special appearance hearing, CMC’s counsel complained that 

Red Bay’s “initial affidavits that they filed were not based on personal 

knowledge.” CMC’s counsel asked the trial court to rule on the objections, and 

when the court did not rule before granting the special appearance, CMC filed a 

motion for rulings on its objections. When the trial court again refused to rule on 

CMC’s objections, CMC filed a written objection to the trial court’s refusal to rule 

on the written and oral objections. 

We hold that CMC’s conduct in the trial court was adequate to preserve 

error for appellate review. CMC made a specific objection and then objected to the 

trial court’s failure to rule. Red Bay had the opportunity to correct any defects in 

its evidence, and it attempted to do so, but failed because its supplemental 

affidavits were untimely. Red Bay cites no authority on appeal suggesting that 

CMC needed to be more specific in its objections, and we have found none.

11
We now turn to Red Bay’s allegation that CMC raised a new issue in its 

appellate reply brief. In its opening brief on appeal, CMC argued that the evidence 

is legally insufficient because Red Bay’s affidavits were “not based on personal 

knowledge [and] are hearsay,” which “will not support a judgment or other final 

order.” Then, when Red Bay made specific arguments in its response brief about 

why Labarca’s initial affidavit demonstrated personal knowledge (despite the lack 

of any statement in the affidavit that it was based on personal knowledge), CMC 

made a more detailed argument in its reply brief concerning how a job title alone 

did not demonstrate personal knowledge. Red Bay then filed a sur-reply brief, 

which we considered, affording Red Bay the opportunity to respond to CMC’s 

reply brief.

We conclude that CMC’s reply brief did not raise an additional issue and 

merely addressed a matter raised in Red Bay’s brief. See Tex. R. App. 38.3 (“The 

appellant may file a reply brief addressing any matter in the appellee’s brief.”). 

Thus, CMC preserved error, and we will now address the merits of whether 

Labarca’s initial affidavit was admissible.

8

D. Labarca’s affidavit was inadmissible and should not be considered 

when reviewing the sufficiency of the evidence.

We review a trial court’s evidentiary ruling for an abuse of discretion. See

Asshauer v. Farallon Capital Partners, L.P., 319 S.W.3d 1, 12 (Tex. App.—Dallas 

2008, no pet.) (reviewing for an abuse of discretion whether a special appearance 

affidavit was made on personal knowledge). Any affidavits filed as evidentiary 

support for a special appearance “shall be made on personal knowledge.” Tex. R. 

Civ. P. 120a(3). If such an affidavit is not made on personal knowledge, then it 

8 We do not address the admissibility of Evans’s affidavit and its attachments of website 

printouts because, as addressed below, it alone does not negate CMC’s jurisdictional allegations 

or support the trial court’s order.

12

 
may not be considered in a sufficiency review. See Urban v. Barker, No. 14-06-

00387-CV, 2007 WL 665118, at *2–3, *7 (Tex. App.—Houston [14th Dist.] Mar. 

6, 2007, no pet.) (mem. op.) (reversing trial court’s denial of the special 

appearance after finding the plaintiff’s affidavit was not based on personal 

knowledge and could not be considered). See generally City of Keller v. Wilson, 

168 S.W.3d 802, 810 (Tex. 2005) (reciting the general rule that a “no evidence” 

point must be sustained when the court is barred by rules of law or of evidence 

from giving weight to the only evidence offered to prove a vital fact).

“For an affidavit to have probative value, an affiant must swear that the facts

presented in the affidavit reflect his personal knowledge.” In re E.I. DuPont de 

Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004). “However, an affidavit does 

not need to specifically state that it is made on personal knowledge if the 

statements in the affidavit show the affiant was speaking from personal 

knowledge.” Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 669 (Tex. App.—

Houston [14th Dist.] 2012, pet. denied). An affiant’s statements concerning his or 

her job title or responsibilities may demonstrate an affiant’s personal knowledge of 

the facts alleged. Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 

553 (Tex. App.—Houston [14th Dist.] 2010, no pet.). But statements in the 

affidavit require factual specificity, such as the place, time, and exact nature of the 

alleged facts. Pipkin, 383 S.W.3d at 669. “A special appearance affidavit must be 

‘direct, unmistakable, and unequivocal’ as to the facts sworn to, so that perjury can 

be assigned upon it.” Urban, 2007 WL 665118, at *2 (quoting Int’l Turbine Serv., 

Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex. App.—Fort Worth 1994, writ denied)). 

“The key is whether the affidavit clearly shows the affiant is testifying from 

personal knowledge.” Pipkin, 383 S.W.3d at 669 (quotations omitted). “The 

13
affidavit must ‘itself’ state the facts and demonstrate the affiant’s competency.” 

Valenzuela, 317 S.W.3d at 553.

For example, this court held that an affidavit did not show it was based on 

personal knowledge when the affiant stated his job title, but he “did not identify his 

responsibilities or other basis for personal knowledge of the facts he assert[ed].” 

Lawrence Marshall Dealerships v. Meltzer, No. 14-07-00920-CV, 2009 WL 

136908, at *4 (Tex. App.—Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op.). 

In another decision of this court, the affiant said he had personal knowledge of the 

facts stated in the affidavit and said he was a claims manager for the plaintiff. 

Valenzuela, 317 S.W.3d at 554. However, this court held the affidavit was not 

based on personal knowledge because the affidavit did not show whether the 

affiant “was the claims manager during the relevant time period, how her job 

duties as the claims manager afforded her the knowledge about [the defendant’s] 

claim, or how she was familiar with this particular claim.” Id.

In another decision of this court refusing to consider an affidavit submitted 

in response to a special appearance, the affiant had sued the defendant regarding a 

stock transaction involving the affiant’s late husband. Urban, 2007 WL 665118, at 

*2–3. Although the affiant said in her affidavit that she had personal knowledge of 

the matters stated in the affidavit and that she was married to her late husband, the 

affidavit “lack[ed] facts as to when they married, or even if she was married to [her 

late husband] when the original transaction occurred.” Id. at *2 & n.2. Further, 

this court found several of the affiant’s statement to not be direct, unmistakable, or 

unequivocal because the affiant referred to events happening at unspecific times, 

such as “October or November 2004” and “sometime in mid 2005.” Id. at *2. 

Red Bay’s affidavit from Labarca contains no recital that it is based on 

personal knowledge. Labarca states, “In or about 2002, I formed Red Bay

14
Constructors, Inc., a South Carolina corporation.” However, that statement is the 

extent of Labarca’s testimony concerning his involvement with Red Bay, and it is 

not direct, unmistakable, or unequivocal. See id. Labarca does not describe his job 

title, responsibilities, or involvement with Red Bay. Labarca does not explain how 

he obtained any knowledge of Red Bay’s dealings with CMC, or whether he was at 

the company during the relevant time periods, or whether he was involved in the 

transactions with CMC at all. The affidavit itself does not demonstrate Labarca’s 

personal knowledge of Red Bay’s dealings with CMC.9

Red Bay contends, however, that Labarca’s personal knowledge is shown by 

the notary’s statement appearing in the affidavit before Labarca’s testimony: 

“Before me, the undersigned authority, appeared Eric Labarca, an executive 

officer of Red Bay Constructors, Inc. . . .” (emphasis added). Red Bay cites no 

authority for considering this statement from the notary—which is not actually part 

of Labarca’s testimony—and we have found none. Therefore, we do not consider 

it when determining if Labarca demonstrated personal knowledge in his affidavit.

Accordingly, the trial court would have abused its discretion in considering 

Labarca’s affidavit, and we will not consider it when reviewing the sufficiency of 

the evidence.

E. The evidence is legally insufficient to support the trial court’s finding of 

a lack of personal jurisdiction.

On its special appearance, Red Bay had the burden to negate all bases of 

personal jurisdiction asserted by CMC. See BMC Software Belgium, N.V. v. 

9 We note further that the credit application or contract referenced by both parties does 

not contain Labarca’s name. Nor is Labarca’s name found anywhere in CMC’s petition or Red 

Bay’s special appearance, nor in the invoices CMC attached to its petition. There is simply no 

way to determine from this record how Labarca would have had personal knowledge of whether 

Red Bay was to perform or actually performed any of its obligations under a contract with CMC 

in Texas, as alleged in CMC’s petition.

15

 
Marchand, 83 S.W.3d 789, 793 (Tex. 2002). CMC contends that Red Bay failed 

to meet its burden and the evidence is legally insufficient to support the trial 

court’s order. See id. at 794 (parties may challenge sufficiency of the evidence 

supporting a trial court’s findings on a special appearance). As discussed above, 

CMC claimed the trial court could exercise personal jurisdiction based on the 

allegations that “a substantial part of the acts or events or obligations of the parties 

were to be performed in Harris County, Texas,” and that Red Bay “contractually 

agreed that all obligations under its course of dealing with CMC were to be 

performed in Harris County, Texas.”

Without Labarca’s affidavit, there is no evidence to disprove CMC’s 

allegations, and the trial court could not have found that Red Bay lacked minimum 

contacts with Texas for a court in this state to assert personal jurisdiction. 

Although Red Bay’s special appearance was verified, it is not evidence. See 

Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 

1995) (“Generally, pleadings are not competent evidence, even if sworn or 

verified.”); cf. White v. State, 871 S.W.2d 833, 836 (Tex. App.—Houston [14th 

Dist.] 1994, no pet.) (“[A] motion, sworn or otherwise, is not evidence.”), 

overruled on other grounds by Richards v. State, 150 S.W.3d 762 (Tex. App.—

Houston [14th Dist.] 2004, pet. ref’d). Even if Evans’s first supplemental affidavit 

and the attachments from the South Carolina Secretary of State website were 

admissible and served timely,10 Evans’s affidavit merely served to authenticate two 

website printouts showing that Red Bay and CMC had registered agents in South 

Carolina. Evans’s affidavit and attachments did not disprove CMC’s allegations 

10 We note that Evans’s first supplemental affidavit, was signed and attached to Red 

Bay’s supplemental special appearance, and dated November 26 (along with an unsigned 

affidavit and verification for Labarca). A certificate of service in the clerk’s record indicates 

service was made on November 26, a day before Red Bay served Labarca’s signed affidavit.

16

 
concerning Red Bay’s contacts with Texas or establish that Red Bay lacked 

minimum contacts with Texas.

Because Red Bay failed to disprove the alleged basis for jurisdiction, there is 

legally insufficient evidence supporting the trial court’s order. CMC’s second 

issue is sustained.

III. CONCLUSION

Having sustained CMC’s second issue, we reverse the trial court’s order and 

remand for proceedings consistent with this opinion.

/s/ Sharon McCally

Justice

Panel consists of Justices McCally, Busby, and Donovan.

17
APPENDIX: LABARCA’S INITIAL AFFIDAVIT TESTIMONY

1. My name is Eric Labarca, and I am in all things competent to make 

this affidavit.

2. In or about 2002, I formed Red Bay Constructors, Inc. (“Red Bay”), a 

South Carolina corporation. From its inception, Red Bay did business with 

CMC Steel Fabricators d/b/a CMC Construction Services (“CMC”) a foreign 

corporation duly authorized to conduct business in South Carolina and 

having a principal place of business in North Charleston, South Carolina. 

Red Bay made purchases from CMC and rented equipment from CMC for 

use in Red Bay’s construction business in South Carolina.

3. I have never been to Texas and Red Bay has never done any business 

in Texas. Specifically, Red Bay has never done any business with CMC in 

Texas. 

4. Red Bay never established an office in Texas, nor did it solicit 

business, directly or indirectly, in Texas. Red Bay never had any dealings 

with CMC other than as set forth in this Affidavit and the Special 

Appearance and General Denial above.

7. [sic] At all relevant times, CMC maintained an office and yard in 

South Carolina and all business done with CMC by Red Bay was 

accomplished through CMC’s South Carolina operation and location. In 

fact, CMC is still listed with the South Carolina Secretary of State as a 

corporation in good standing to conduct business in South Carolina.

8. All financial and other dealings between Red Bay and CMC 

originated and were completed in South Carolina.

9. Due to the failure of CMC to provide adequate and timely equipment 

to Red Bay as contracted and committed to, Red Bay is not indebted to CMC 

in any amount.

10. Further, Affiant sayeth not.

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